TaxTMI 
TaxTMI 
2013 (2) TMI 1
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....se, Chennai V Division, Chennai-II Commissionerate (hereinafter referred to as Lower Adjudicating Authority - LAA in short). 2. Briefly stated facts of the case are that the appellant, holders of Central Excise Registration, were engaged in the manufacture of 'Synthetic filament yarn' falling under Chapter Sub-Heading 3916 10 90 and 5404 10 00 of Central Excise Tariff Act, 1985. During the course of manufacture of Monofilament yarn, wastage of Nylon Monofilament yarn generated. The appellant during the period from February 2008 to June 2008 had classified such waste under the Tariff sub-heading 5404 10 00 and cleared the same on payment of duty @ 12% adv. instead of under tariff sub-heading 3915 90 50 and paying duty @16% adv. Again....
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....ste is non- excisable; (e) that the LAA, having admitted the correct classification of the Monofilament yarn of less than 1mm dia as falling under sub-heading 5404 19 90, ought not have unilaterally and unreasonably held that the resultant waste obtained during the course of manufacture of the said filament yarn is also a waste classifiable under sub-heading No. 3915 90 50, establishing total non-application of mind and revenue bias; (f) that since the waste has been obtained in the process of manufacture of the yarn and not by any process application legislative intend is required to be established to subject the waste to a duty of excise from the express provision contained....
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....cation the Tariff Heading 5401; (l) that the LAA failed to consider the ratio of various decisions/judgment cited by them; (m) that the LAA earned in failing to appreciate the appellant's contention that the waste of yarn covered under Chapter Heading 5401 and 5402 till the year 1994-1995 were discarded from the financial year 1995-1996 and that there has been no entry for the waste of Chapter 54 since then, as a result of which there has been no burden upon the appellant to discharge any excise duty; (n) that the LAA erred in placing reliance upon the decisions in the case of M/s. Viral Laminates Ltd. v. C.C.E., Ahmedabad - 2002 (143) E.L.T. 143 as the said decision did n....
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.... Nirlon Ltd. [2008 (232) E.L.T. 743] 5. I have gone through the case records including the record of PH, carefully. The appeal was not filed within the statutory limit of 60 days. There was a delay of 9 days. As the reason put forth is genuine and the delay is within condonable limit, I condone the delay of 9 days and admit the appeal. The lone issue to be decided in the present appeal is whether the waste arisen during the manufacture of Monofilament yarn is to be classified under TSH 39159050 as proposed by the Department or under TSH 5404 10 00 as claimed by the appellant. 5. There is no dispute that the product in question is classifiable under Tariff Heading 5404. In fact the LAA has himself accepted in his order that t....
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....ing 5404 and which was accepted by the Department, there is no reason to bring the waste in question under TH 3915. As rightly contented by the appellant, the onus is on the LAA who did not discharge the burden. Further the Chapter 39 also excludes the Chapter 54 which fact has been conveniently omitted by the LAA. The appellant's contention was also supported by the Tribunal Mumbai's decision in the case of C.C.E., Mumbai-V v. Nirlon Limited. - 2008 (232) E.L.T. 743, wherein the Hon'ble Tribunal has held that "waste and scrap - Dutiability - Waste product, a mixture of moisture, unreacted DMToligomers, Methanal, colouring impurities and DEG arising during process of manufacture of Yarn - Demand classifying product under sub-heading 3915.90....