TaxTMI 
TaxTMI 
2009 (8) TMI 175
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....y the challenge to the order dated 5th May, 2004 passed by the Additional Commissioner, Bhopal has been rejected. The Additional Commissioner vide his order dated 5th May, 2004 had confirmed the demand of duty to the tune of Rs. 16,58,275/- under Section 11A of the Central Excise Act, 1944 and had also ordered payment of interest under Section 11AB of the said Act, while dropping the demand of duty to the extent of Rs 3,534/- on scrap/used filter bags. The Additional Commissioner also imposed penalty equal to amount of the duty confirmed by the said order. 3. The challenge to the impugned order is two fold - Firstly, that the respondent could not have invoked the extended period of limitation in the facts and circumstances of the case an....
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....ource of generation of the scrap during the period from 1998 to 2002. 5. The facts which are not in dispute are that pursuant to the letter dated 6th Feb. 2002 by the Superintendent, Central Excise, the appellants under their reply dated 8th April, 2002 informed the respondent that while they were engaged in the manufacture of cement clinker and Portland cement, waste and scrap of MS scrap was generated as the resultant of various repairs and maintenance work of plants and that MS Turning and Boring scrap consisting of iron chips were formed while making required size holes on the iron pieces, shaping of iron pieces to the required size etc. The details of such scrap was disclosed under the annexure to the said letter in relation to the ....
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....d that pursuant to reply dated 8th April, 2002 by the appellants giving details about the scrap which was generated by the appellants from the relevant period they have thought it fit and proper to restrict proceeding against the appellants in relation to the period July, 2001 to March, 2002 in relation to scrap so generated and disposed of by the appellants, it was not open to the respondent thereafter to issue second show cause notice by invoking the extended period of limitation for the relevant period. He further submitted that it is pertinent to note that the first show cause notice has not been adjudicated even till this date. Placing reliance in the decision of the Apex Court in the matter of Nizam Sugar Factory v. C.C.E., A.P. - 200....
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....cess of generation of such scrap and the Department failed to disprove the said facts repeatedly brought on record by the appellants. He further submitted that the appellants could not have been expected to prove the negative fact of non-availing of modvat credit. The burden in that regard was on the Department to prove that the appellants had availed the modvat credit. 9. Learned Advocate for the appellants drawing our attention to the decision in their own case reported in 2008 (232) E.L.T. 564 submitted that he Tribunal has already held that MS scrap, borings, turnings etc. generated in the course of maintenance of repair work cannot be subject to duty liability. That was in relation to the period January 2001 to September 2002. He fu....
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....t was clearly held - "6. We have carefully considered the submissions from both the sides. The appellant is not involved in the manufacture of iron and steel products but only in maintenance and repair work. Further it is not disputed that no credit has been taken on the items used in such repair and maintenance. Therefore, we hold that no duty is liable on MS scrap, borings, turnings, etc. generated by them in maintenance and repair work". 13. The point as to whether the scrap generated in the factory of the appellants for the period from January 2001 to March, 2002 was out of manufacturing process or not has been clearly answered in favour of the assessee and against the Department in the said decision. 14. Nothing has been broug....