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UNION OF INDIA versus M/S HINDUSTAN ZINC LIMITED & ANR

High Court of Rajasthan

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UNION OF INDIA v M/S HINDUSTAN ZINC LIMITED & ANR - CEA Case No. 13 of 2007 [2007] RD-RJ 1506 (26 March 2007)

D.B. CENTRAL EXCISE APPEAL NO.13/2007

UOI Vs. M/s Hindustan Zinc Ltd. & Anr.

Date : 26.03.2007

PRESENT

HON'BLE MR. JUSTICE RAJESH BALIA

HON'BLE MR. JUSTICE SATYA PRAKASH PATHAK

Mr. V.K. Mathur for the appellant. ________

Heard learned counsel for the appellant.

The following substantial question of law has been suggested by the appellant as arising from the order of the

CESTAT dated 25.11.2004 for consideration by this Court:-

"Whether the learned Tribunal is right in law in dropping the demand and penalty on waste and scrap of capital goods (M.S. Scrap) cleared during the period from 1996-97 to 1999-2000 (upto 1st April, 2000) when the provisions of the Rule 57S (2)(C) of the Rules, 1944 were applicable, on the grounds that the department has failed to prove that the assessee has availed the benefit of modvat credit on the capital goods which had been cleared as waste and scrap when the assessee was working under Self Removal

Procedure Scheme and the department did not have any supervision or control over clearances made by the assessee."

As it appears from the framing of question itself that the Commissioner (Appeals), Central Excise as well as Tribunal both have found that there is nothing on record to show that the capital goods of which waste scrap was removed by the assessee were those in respect of which the respondent has claimed modvat credit of duties paid in respect of the said capital goods. Where the capital goods in respect of which the duties have been paid are not the one subjected to availing of modvat credit by the manufacturer, no duty is payable on removal of its waste and scrap from the factory side is not in dispute.

Since the finding of fact has been recorded by both the appellate authorities that availing of modvat credit in respect of capital goods in question by the manufacturer is not proved, the consequence has been followed that the assessee has been held not liable to pay the duty on removal of its scrap and waste of such capital goods. Since the decision is founded on findings of fact which has not been shown to be perverse or based on no material, no question of law arises for consideration in this appeal.

Accordingly, the appeal is dismissed. [SATYA PRAKASH PATHAK], J. [ RAJESH BALIA ], J. babulal/


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