1999 (11) TMI 538

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....peals) had observed that the glass bottles after breakage became the scrap of glass and were classifiable under sub-heading No. 7001.10 of the Central Excise Tariff. 2. Shri Jitendra Singh, Advocate appearing for the appellant submitted that the appellants were engaged in the manufacture of aerated waters and were bringing duty paid glass bottles for filling of the aerated water. During the course of filling, loading, etc., certain breakages occur. The appellants were not engaged in the manufacture of glass bottles. He submitted that no new product have emerged as a consequence of breakages and no duty could be charged thereon. 3. Shri Narain Singh, SDR replied that the waste was also excisable and referred to the Supreme Co....

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....5-1989. Thus, we find that the decision of the Calcutta High Court, which is of later date, has to be followed. 6. We have also gone through the case law referred to by the ld. SDR and we find that they do not advance the case of the Revenue. In the case of Collector of Central Excise, Bangalore v. Eros Pharma (P) Ltd. - 1994 (73) E.L.T. 72 (Tribunal), the Tribunal had observed that the glass bottles which are broken are considered to be waste and no Modvat credit was reversable. Para-6 from that decision is extracted below :- "6. We observe the admitted position is the glass bottles have got broken after the credit in respect of the same had been taken and that the same were broken during the process of manufacture of the finish....

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....reference is reproduced below : "Rule 57D. Credit of duty not to be denied or varied in certain circumstances - (1) Credit of specified duty allowed in respect of any inputs shall not be denied or varied on the ground that part of the inputs is contained in any waste, refuse, or by-product arising during the manufacture of the final product, whether or not such waste, refuse or by-product is exempt from the whole of the duty of excise leviable thereon or is chargeable to nil rate of duty or is not specified as a final product under Rule 57A. (2) Credit of specified duty allowed in respect of any inputs shall not be denied or varied on the ground that any intermediate products have come into existence during the course of manufacture o....