M. Veeraiyan, Member (T)
1. This is an appeal against the order of the Commissioner (Appeals) No. Commr(A)124/VDR/2003 dated 16.4.2003.
2. Heard both sides.
3. The relevant facts, in brief, are as follows:
a) The appellant is a manufacturer of pharmaceutical products. They have cleared some old and used capital goods which are not serviceable as scrap and also certain waste and scrap of other items including packing material.
b) The original authority confirmed a demand of Rs. 21,22,434/- in respect of such scrap sold during the period January, 1996 to December 1998.
4.1 Learned Advocate appearing for the appellant submits that clearance of the scrap of used capital goods which are no longer useable cannot be treated as clearance of manufactured scrap; they are basically manufacturer of pharmaceutical products, the waste packing material and other waste which arises in the factory are being sold at scrap value and such goods do not attract excise duty.
4.2 He also submits that in respect of subsequent period on the similar items cleared by them the show cause notice proposing demand was dropped by the original authority and the same was upheld by the Commissioner (Appeals). The Department is in appeal before the Tribunal against the said order.
4.3 He also relies on the following decisions to support the proposition that clearance of waste and scrap of old and used capital goods are not chargeable to central excise duty:
Deepak Fertilisers & Petrochem, Corpn. Ltd. v. C.CE., Mumbai II
Alembic Glass Industries Ltd. v. C.C.E., Vadodara I 2006 (198) ELT 141 (Tri-Mumbai)
4.4 He also submits that in respect of these old and used machinery they have not taken credit on the capital goods and at any rate, there is no such allegation in the show cause notice, in the findings of the original authority or that of the Commissioner (Appeals).
5. We have considered the submissions carefully. The appellant is only a manufacturer of pharmaceutical products. They are not in the manufacture of scrap out of old and used machinery; we find that their case is covered by the decisions relied upon by the learned Advocate. We hold that the scrap of packing material and of old and used capital goods which are cleared by them cannot be considered as (sic) arising out of the manufacture of pharmaceutical products and hence they are not liable to excise duty.
6. The appeal is allowed with consequential relief, if any.
(Dictated and pronounced in the open Court)