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TMI Blog2017 (11) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... goods and after use of the capital goods, certain waste arises and the waste and the said scrap was cleared without payment of duty. Therefore, the show cause notice was issued to the appellant for payment of duty on waste and scrap of the capital goods, in terms of Rule 3 (5A) of CCR, 2004. The matter was adjudicated, demand of duty was confirmed along with interest and penalty has also been imposed. Aggrieved from the said order, the appellant is before me. 4. Ld. Counsel for the appellant submits that it has not been classified that under which rule the appellant is required to pay duty. Therefore, in the light of the decision of this Tribunal in the case of Shree Ganesh Khand Udyog Sahakari Mandli Ltd. Vs. CCE, Surat vide Final Order N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S spindle, used filter for lube oil/change oil, MS/SS/Brass scrap etc. He submitted that in all these cases duty has been demanded at flat rate without classifying items and without determining rate of duty leviable thereon. He relied upon the decisions of the Tribunal in the case of M/s. Shree Ganesh Khand Udyog Sahakari Mandal Ltd. - Order No.A/1152-1153/WZB/AHD/09, dated 29-5-09, J.K. Industries Ltd. reported in 2004 (164) E.L.T. 332 (Tri.) and Indo Rama Synthetics (India) Ltd. v CCE, Nagpur reported in 2005 (190) E.L.T. 431 (Tri. - Mumbai). While we find that the decisions in J.K Industries Ltd. and Indo Rama Synthetics (India) Ltd. are not applicable on facts, the Tribunal s decision in the case of Shree Ganesh Khand Udyog Sahakari Man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellant was that waste and scrap of metal generated out of dismantling of machinery are due to wear and tare of machine parts cannot be treated as excisable goods leviable to duty as waste and scrap as defined in note 8(A) of Section 15 of CETA 1985. According to note 8(A) of Section 15, waste and scrap would mean metal waste and scrap from the manufacture or mechanical working of metals and metal goods definitely not usable as such because of breakage, cutting up, wear or other reasons. The words wear or other reasons would clearly show that capital goods which have worn out because of use and are being scrapped would be covered by this heading. However we find that in the case of India Cements Ltd. reported in 2006 (76) RLT 79 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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