1998 (6) TMI 141

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....railway scrap such as old rails, wheels, angels, crossties, sleepers, plate cuttings etc. and availed of deemed Modvat credit as provided under Rule 57G of the Central Excise Rules. Show cause notices were issued for disallowing the deemed Modvat credit only on the allegation that old scrap of railway material cannot be rolled/re-rolled directly and as such it would not fall in the category of rollable material or re-rollable material for the manufacture of the products manufactured by them. The learned Advocate submitted that it is apparent from the findings of the Assistant Commissioner in the different Orders-in-Original that the issue involved was only that the condemned railway material did not fall under the category of rollable/re-ro....

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....ment of deemed Modvat credit does not arise. Shri Gopal Prasad, learned Advocate argued that as per the provisions of Section 35E(2) of the Central Excise Act, the Commissioner has to confine itself to the order passed by the officers subordinate to him; it cannot go beyond the scope of the order passed by the subordinate officers. In the present cases, the Commissioner had issued the directions for filing the appeals on the ground that the scrap purchased from the Railways in auction was recognisable as non duty paid material which was not the point on which show cause notices were issued. He, therefore, contended that the Commissioner has gone beyond the authority vested in him under Section 35E. He relied upon the decision of the Commiss....

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....f an appeal before the Commissioner (Appeals) for determination of such points arising out of the decision or order. This clearly indicates that it is not upon the Collector to travel beyond the scope or periphery to the show cause notices and order filing of an appeal, pleading a ground which is not specified as ground for raising demands in the show cause notice. The Tribunal again in the case of JBS Capacitors v. CCE reported in 1995 (79) E.L.T. 131 (Tribunal) = 1995 (59) ECR 411 held that where an issue was not considered and decided in the adjudication order, it cannot be said to arise from that order and no application to the Collector (Appeals) under Section 35E(2) will be for determination of a point not arising out of the original ....