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TMI Blog2024 (2) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant in their calculation relates to the loss on account of slag - HELD THAT:- From the letter DGFT dated 04.05.2011, it is apparent that the wastage norm for the stage of manufacturing brass items from segregated process mix brass scraped is 1.26 and is obviously inclusive of all kind of losses including slag. Thus, the calculation given by the appellant in their appeal cannot be adopted for the purpose of calculating unexplained consumption of scrap. Time Limitation - HELD THAT:- It is seen that the demand has been raised not only invoking provisions of Section 28 but also Section 72 of the Customs Act. In terms B17 bond executed by the in terms of Notification 52/2003-Customs dated 31.03.2003. Therefore, since the demand has been raised invoking the condition of the bond the period of limitation would not be applicable to the instant case. There are no merit in appeals filed by the appellant the same are dismissed. - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) And HON BLE MR. RAJU, MEMBER (TECHNICAL) Shri R Subramanya, Advocate for the Appellant Shri Anoop Kumar Mudvel, Superintendent (AR) for the Respondent ORDER RAJU These appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicable depending upon a mix Brass scrap as discussed in para 14 infra there the duty implication in the order stand upheld. These appeals are also against this specific restriction placed by the Commissioner Appeals in this impugned order. 4.1. It is noticed that the Adjudicating Authority confirmed an order classification of goods under heading No. 7404 0022 of Custom Tariff Act 1975. The show cause notice also sought to classify the said goods under Custom Tariff Act 7404 0022. In the circumstances we find that the order of the Commissioner Appeal seeking to confirm demand while simultaneously holding the goods not classifiable under heading No. 7404 0022 cannot be sustained. Moreover CBIC has classified as follows vide Circular No. 1029/17/2016 dated 10.05.2016. 2. However, there is another category of waste viz. foreign materials segregated initially and not fed in furnace. The issue is when such segregated foreign material is cleared by the brass manufacturers, can it be treated as clearance of inputs as such and accordingly are manufacturers required to pay an amount equal to the credit availed in respect of such inputs in terms of Rule 3(5) of CENVAT Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise or Assistant Commissioner of Central Excise, as the case may be, (hereinafter referred as the said officer) in this behalf; (3) The unit executes a bond in such form and for such sum and with such authority, as may be specified by the said officer, binding himself, - (a) to bring the said goods into the unit or and use them for the specified purpose mentioned in clauses (a) to (e) in the opening paragraph of this notification; (b) to maintain proper account of the receipt, storage and utilization of the goods; (c) to dispose of the goods or services, the articles produced, manufactured, processed and packaged in the unit, or the waste, scrap and remnants arising out of such production, manufacture, processing or packaging in the manner as provided in the 2[Foreign Trade Policy] and in this notification; (d) to pay on demand - (1) an amount equal to duty leviable on the goods and interest at a rate as specified in the notification of the Government of India in the Ministry of Finance (Department of Revenue) issued un- der section 28AB of the said Customs Act on the said duty from the date of duty free import of the said goods till th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rement of such goods or within such extended period as the said officer, as the case may be, on being satisfied that there is sufficient cause for not using them as above within the said period, allow; (II) in case of failure to achieve the said positive Net Foreign Exchange Earning, the duty equal in amount to the portion of the duty leviable on the said goods but for the exemption contained in this notification and the duty so payable shall bear the same proportion as the unachieved portion of Net Foreign Exchange Earning bears to the positive Net Foreign Exchange Earning to be achieved along with interest at the rate as specified in the notification of the Government of India in the Ministry of Finance (Department of Revenue) issued under section 28AB of the said Customs Act, on the said duty to be paid on demand from the date of importation or procurement the said goods till the payment of such duty. 6. In terms of clause 3 (d) (ii) is required to establish to the satisfaction of the officer that the goods used in production or packaging of finished goods are in accordance with the SION for export out of India. In the case of appellant themselves vide order F No. 01/81 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed brass scrap 1.26 MT It is also clarified that the above wastage norms are applicable for the manufacture of brass items from mixed metal brass scrap with impurities like iron Steel, Plastic/rubber etc and not applicable for the manufacture of brass items from normal brass scrap. 7. It is seen from the order-in-original that the Additional Commissioner has given following calculation for the purpose of ascertaining the quantity required for manufacture of goods actually produced by the appellant. From the above table it is noticed that the Additional Commissioner has given the benefit of the wasted as prescribed in the letter of Ministry of Commerce and Industry DGFT dated 04.05.2011 prescribe in wastage norms. Row 1 to 9 of the above table calculate the norm at the stage of segregation of non-foundry scrap from foundry scrap. The Annexure -B1 appearing after row 9 of the above table calculates the amount of segregated foundry scrap needed for manufacture of finished goods actually manufactured by the appellant. It is apparent that the said calculation is in accordance with the norms prescribed vide letter dated 04.05.2011. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d should be restricted to 27.871 MT of raw material only, involving duty amount to Rs. 7,18,337/-only. 8.1. It is seen from the above calculation presented by the appellant that they have taken of fixed ratio of 1.5 for the purpose of calculating ratio at the time of segregation of processed mix brass scrap. It is seen that the letter of DGFT dated 04.05.2011 does not give permission to avail benefit of the ratio of 1.5 but the language is as follows:- as per the actual verified by the Central Excise Officer subject to maximum of 1.5 MT. From the table above it is seen that the Additional Commissioner in the order-In-original has given the benefit of actual amount recovered on account of segregation. The calculation in the appeal is made by adoption of a fix ratio 1.5 which is not ratio of prescribed in DGFT letter. It cannot be accepted as the real ratio verified by the authorities is less than 1.5 and as per DGFT letter the ratio is a map of 1.5 but limited to the actual verified by Central Excise. 8.2. The second point raised by the appellant in their calculation relates to the loss on account of slag. From the letter DGFT dated 04.05.2011, it is apparent that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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