TaxTMI 
TaxTMI 
1999 (9) TMI 402
X X X X Extracts X X X X
X X X X Extracts X X X X
.... reprocessed to manufacture granules known as reprocessed granules. They had been filing classification lists/declarations under Rule 173B of the Central Excise Rules wherein they had classified reprocessed granules under CET subheading 3903.30. However, in Declaration No. 18/95-96 w.e.f. 9-5-1995, they classified the item under CET sub-heading 3915.20 attracting duty at the rate of 25% ad valorem. Subsequently, in the Declaration No. 21/95-96 w.e.f. 19-5-1995, they classified reprocessed granules under CET sub-heading 3903.30 and claimed nil rate of duty under Notification No. 111/95-C.E., dated 6-9-1995. In these two declarations, they classified ABS waste under CET sub-heading 3915.20 and claimed nil rate of duty under Notification No. 6....
X X X X Extracts X X X X
X X X X Extracts X X X X
....adings 39.01 to 39.14 provided that they are reprocessed or produced in India out of scrap or waste of goods falling under Chapters 39, 54, 55 or 59. However, he confirmed a duty demand on ABS waste on the ground that it was used in the manufacture of reprocessed granules which were not exempt from the whole of the duty of excise in terms of Notification No. 111/95 and hence waste did not satisfy the condition of Notification No. 67/95 which is available to specified inputs manufactured in a factory and used within the factory of production in or in relation to manufacture of specified final products, provided that those final products are not exempt from the whole of duty of excise or are not chargeable to nil rate of duty. As a result of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....96 have all demanded duty on reprocessed ABS granules. However, the duty has been demanded and confirmed by the impugned orders of the Assistant Commissioner No. 10, CC/97, dated 28-2-1997 and Commissioner (Appeals) No. 35/CE/BRL/98, dated 5-2-1998 on waste of ABS polymers. This is impermissible and unsustainable in law". 6.  The submission is opposed by the learned DR on the ground that this is a new plea and cannot be allowed at the second appeal stage. However, since it is a legal ground and since it was raised in the stay application and stay application was allowed on this basis, we permit the appellants to raise the additional ground and allow the Misc. Application. 7.   We have heard Shri G. Shiv Dass, learned Counsel who....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sp;Opposing the prayer, the learned DR, Shri Satnam Singh submits that vide order dated 10-4-1996, the Assistant Commissioner had ordered provisional assessment of reprocessed granules, ABS waste and scrap without extending the benefit of Notification No. 111/95 and No. 67/95 respectively and accordingly assessees/appellants were informed that the matter was under dispute and therefore, they were well aware that in case granules were exempt, duty was liable to be paid on waste and scrap. He contends that the assessments were provisional under Rule 9B of the Central Excise Rules and the Assistant Commissioner was empowered to determine the final liability of the assessee on finalisation of assessment which has been done in the adjudication o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... are exempt from the whole of duty of excise leviable thereon or chargeable to nil rate of duty and that the exemption is also not available to those inputs which are used for reprocessed materials. In these three notices, the demand is also only on certain quantities of reprocessed granules. Therefore, the appellants are correct in their contention that none of the notices specifically raised any demand on ABS waste. However, since during the entire period, the assessments were provisional under Rule 9B of the Central Excise Rules, the Assistant Commissioner was empowered to determine the final liability of the assessee, on finalisation and the assessments have been finalised vide the adjudication order which is the subject matter of the p....