ORDER
S.S. Sekhon, Member (T)
1.1 Appellants are an assessee under the Central Excise Act engaged in the manufacture of goods falling under the Central Excise Tariff on their own accounts &on job work, entailing conversion of aluminium ingots into aluminium castings out of inputs supplied by M/s Bajaj Auto Ltd under Modvat rules.
1.2 During the course of such Aluminium Castings, emergence, certain quantities of Oily Metal Aluminium droplets arise, due to solidification overflow of molten metal etc. Same is swept/collected & remitted on job work basis to another party. Permission on 26.12.79 was granted by the jurisdiction officer to remove such oily solidified aluminium strap, for reprocessing into Aluminium ingots; it was to be eventually rejected & used the movement ie/removal of scrap was not insisted on duty payment.
1. On 17.11.96, Prevented Officers, on a visit to the factory of the appellant objected to such removals of the oil metal Aluminium scrap, generated during the casting process, without payment of duty & were of the opinion that such scrap should have been sent back to M/s Bajaj Auto Ltd or/ on duty payment. Pursuant to these inquiries Show cause Notice dated 29.7.97 demanding duty, penalty and interest on such removals during the period July 92 to October 95 was issued.
2. The Commissioner, after hearing the appellants and on finding that Board Circular No 15/89-CE8 dated 19.04.89 & 267/48/80 Cx8 dated 21.06.90 Ltd permitted removal of such scrap under Rule 57F(2), ie without payment of duty, and that these circulars were withdrawn vide Circular no 2193-CX8 dated 12.1.93, therefore demands should be confirmed with effect from 31.3.93 since on that date, the permission if any granted were withdrawn. He therefore confirmed the duties, holding malafides in the part of the assessee in as much as no declaration was made in the classification list filed, he levied penalty under Section 11AC & interest under such 11 AB was ordered. Hence this appeal.
2.1 The entire process of such removals was within the knowledge of the department & was permitted by the Board vide its circulars, under Rule 57F(2). The demands issued vide SCN dated 23.07.97 for the period July 92 to October 95 is therefore barred by limitation. If the Circular dated 12.01.93 of the Board has withdrawn the earlier circulars, there is in action on the part, of the officers in having not issued a stop clearance notice on permission dated 26.09.86 letter issued by the Jurisdiction Officers. Commissioner orders on this aspect are silent. Moreover if Board itself was in doubt, the blame for not following the duty paid removal procedure cannot be ascribed to intentional evasion of duty. We therefore find no grounds of suppression of facts raised for the demand period to be available to Revenue.
2.2 The penalty under Section 11 AC & interest under 11 AB can not be in any ease upheld for alleged demands or perusal including October 1995.
2.3 The demands on the job worker is for the inputs received under 57F(2) not accounted is not maintainable.
2.4 On merits being bound by the decision of the Larger Bench in case of Wyeth labourites Ltd (2000 (120) ELT 218, we find no reason to levy duty on the waste solidified molten aluminium in this case.
3.1 In view of the findings, no merits are found to sustain the Commissioner order. The same is set aside & appeal allowed.
(Pronounced in Court)