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TMI Blog2009 (2) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules. Since the assessment process starts after the manufacturing process is over and waste and scrap are generated, the assessment process has to be carried out as per the law – Held that appellants are entitled to the exemption claimed by them - E/1149/2008 - A/296/2009-WZB/AHD - Dated:- 2-2-2009 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) Shri Prakash Shah, Advocate, for the Appellant. Shri D.S. Negi, SDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)].- The appellants are engaged in the manufacture of tableware, kitchenware and other household articles of aluminium falling under chapter No. 7615 of Central Excise Tariff. During the course of manufacture of the goods waste and scrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty since the department refused to issue the certificate required under notification and thereafter appellants intimated the department that henceforth they would not pay duty on waste and scrap in view of the exemption available under notification No.10/2003-C.E. (N.T.) dated 1-3-2003 [now notification No.10/2006-C.E. (N.T.) dated 1-3-2006] and also under notification No. 89-95-C.E. (N.T.) dated 18-5-1995. Thereafter show cause notice came to be issued and the impugned order was passed. He submits that the Para (V) of notification No. 43/2001-C.E. (N.T.) is applicable when the excisable goods are removed as such are after partial processing for a job work to a place outside the factory and not applicable to them. Even if it is applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. V(c) of the notification which is relevant for consideration reads as under:- "Any waste arising from the processing of the excisable goods may be removed on payment of appropriate duty as if such waste is manufactured in the factory of the manufacturer or processor". 4. What emerges from the condition reproduced above is that waste and scrap arising after the processing of export goods has to be assessed and appropriate duty has to be paid before removal. As for the procedure of assessment, the first step is to classify the goods and there is no dispute as regards this. The next step is to find the rate of duty. The Commissioner in the impugned order has held that rate of duty has to be determined as per the condition reproduced a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y it correctly in the assessment process. Unless there is a condition that waste and scrap are exempted if they have arisen from the inputs on which appropriate duty has been paid the revenue has no case. 5. The learned advocate has cited following three judgments in support of his contentions. (1) Media Industries Ltd. v. Commissioner of Customs, Mumbai reported in 2006 (199) E.L.T. 345 (Tri.-Del.) (2) Anand Polyrotex v. Collector of Central Excise reported in 1991 (56) E.L.T. 537 (Tribunal) (3) Collector of C.Ex., Vadodara v. Dhiren Chemical Industries reported in 2002 (139) E.L.T. 3 (S.C.). In all these cases it was held that dutiability of process waste and scrap under Modvat scheme has to be considered not only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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