TMI Blog2003 (9) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... ), dated 4-6-02, by which the ld. Commissioner (Appeals) has rejected their appeal by holding that the item "Waste and Scrap" sold by the appellant has a relation to the chapter headings which relates to waste and scrap and has been held by him liable to duty on its clearance. 2. Aggrieved by the above order, the appellants have come in appeal on the ground that the Commissioner (Appeals) had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r heads. They had also informed that the capital goods have been received prior to insertion of Rule 57Q and as such no Modvat credit had been availed by them. Further, they had informed that the notification could not be pressed for levy of duty, since they were not manufacturers of articles from base metals and hence inapplicable. In the case of metal articles Note 6 under Section (xv) of the Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emanded in respect of such scrap is not tenable. The ld. Advocate relied on the judgment rendered by the Tribunal in the case of Diesel Components Works v. CCE, Chandigarh, reported in 2000 (120) E.L.T. 648 (T). The Ld. Advocate also relied on the judgment rendered by the Tribunal in the case of Hindalco Industries Ltd. v. CCE, Allahabad, reported in 2002 (144) E.L.T. 339 (Tri. - Del.) = 2002 (101 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Patiala v. CCE, Chandigarh, 2000 (120) E.L.T. 648 (Tri.) = 2000 (40) RLT 641 (CEGAT), in which it has been held that the scrap generated during dismantling of locomotives is not dutiable as scrap and it is only the scrap which arises during the manufacture or mechanical working of metals or metal goods is that alone is liable to duty. 3. In view of the above cited cases and the factual position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l product attract Central Excise duty. We therefore, applying the ratio of the judgments cited by the ld. Advocate hold that scrap generated by such inserviceable capital goods on which no modvat credit has been taken is not dutiable. We are therefore, unable to sustain the impugned order of the Commissioner (Appeals) and therefore allow the appeal with consequential relief, if any, by setting asi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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