2016 (8) TMI 347

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....(i) The dispute arose with issue of show cause notice dated 1/8/2002. The gist of which is reproduced below:- "Noticee have availed Modvat/Cenvat Credit on cement making machinery along with other item and thereafter continuously availed Modvat/Cenvat Credit facilities on Machines, Machinery, and capital items etc used in the Cement Plant. These waste and scrap are goods on which appropriate duty of excise is liable to be discharged on their clearance. By clearing waste and scrap of goods on which cenvat credit has been availed, without payment of duty under cover of an commercial gate pass, the noticee have contravened the provisions of Rule 11 of Central Excise Rule 2001 and 2002 which provides for clearance of excisable goods un....

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....4 in which he dropped the demand pertaining to scrap of battery, choke and filter bags, but confirmed the rest of the demand as follows:- "I find that in terms of Section Note 5(a) of Section XV of CETA'85, waste and scrap includes those waste also which arise during mechanical working of metals. Therefore, it is clear that the said waste is classifiable under Ch. H. No. 7204 of CETA and, hence, dutiable." (iv)   When the issue reached the Tribunal, it was remanded back to the Commissioner (Appeals) vide order dated 19/7/2005 with the following observations: "In the SCN, it has been alleged that the appellants had availed the Modvat Credit on the goods detailed therein and as such the scrap also arising out of....

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....ainst the allegation made in the show cause notice, it is not material to the dutiability of M.S. Turning and Boring scrap and M.S. Scrap mixed with tin paper scrap, as rightly argued by the lower authority." 3.   The appellant is before us against the impugned order. 4.   Heard Shri Vipul Agarwal, Advocate for the appellant and Ms. Kanu Verma, JCDR for the respondent. 5.   From the sequence of the case, outlined above, it is fairly clear that the demand made in the show cause notice is hinging around the question whether CENVAT/Modvat Credit has been taken on cement making machinery. The demand has been made for clearing waste and scrap of goods on which CENVAT Credit has been availed without payment ....