TaxTMI 
TaxTMI 
2023 (5) TMI 1076
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....31.08.2012. By the impugned order commissioner appeal has up held the order-in-original stated as follows: 'The appellants contention is that the waste and scrap of various items cleared by them are not dutiable on which they have not availed modvat /cenvat credit is not tenable as they have not put forth any documentary evidence to support their contentions. Further, it is noticed that judgement relied upon by them in the case of Gujarat Ambuja Cement Vis CCE Rajkot- 2004i. Del) which was relied upon in Prism Cement Ltd v/s. CCE x Bhopal, 2008 (232) ELT 564 (Tri. Del.) Principal Bench pertains to Waste & Scrap MS scrap, trimmings etc. generated during repairs and maintenance of works. Assessee was not involved in manufacture of Ir....
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....ce do not state as to this waste and scrap is the scrap of which capital goods and has not given any evidence to the effect of availment of Cenvat credit on the goods out of which the waste and scrap has been generated. ● The impugned order of the Commissioner (Appeals) travels beyond this court. The show cause notice remanded duty by invoking Rule 3 (5A) of Cenvat Credit Rules, 2004 and adjudicating authority confirm the demand relying upon Central Excise Act, 1944. Commissioner (Appeals) up held the demand under Rule 3(5A) without making any observation on the findings recorded by the adjudicating authority. They rely on following decisions in their support: CC Vs. Toyo Engineering India Limited- 2996 (201) ELT 513....
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.... product and is an outer packing in which HDPE bags are received and that the cement is packed in HDPE bags. The learned counsel has also submitted that the demand of duty on grinding media balls is also not sustainable, and that the grinding media is used in ball mill or grinding mills in the manufacture of cement and is eligible for credit as input. The learned counsel has relied upon the decision of the Hon'ble Supreme Court in the case of CCE v. West Coast Industrial Gases Ltd. reported in 2003 (155) E.L.T. 11 (S.C.). 6. I find that the issue is covered by the decision of the Hon'ble Supreme Court in the case of West Coast Industrial Gases Ltd. (supra) read with Board's Circular No. 721/37/2003- CX., dated 6-6-2003.....
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....Ltd. v. CCE [2004 (173) E.L.T. 61] (ii) A.C.C. Ltd. v. CCE [2001 (133) ELT, 375 (Tri.) 2001 (46) RLT 745] (iii) HPCL v. CCE [2002 (144) ELT. 555 (Tri.) 2002 (52) RLT 688] 2. Heard the learned JDR in the matter. 3. On a careful consideration of the matter and on perusal of the judgments cited supra, we noticed that all the items which were cleared are not dutiable. They were cleared from the workshop of the factory as Waste and Scrap on account of its wear and tear. All the judgments cited supra are clearly applicable to the facts of the case. Respectfully following ratio of the cited judgments, the demand raised on waste and scrap is set aside by allowing the appeal with consequential relief." 4.3 Hon&....