CCE Vs. DEV FOAM PVT. LTD.

JUDGEMENT

(1.) THIS appeal has been filed by the Revenue against the impugned order -in -appeal dated 15.5.2002. The issue in the appeal relates to the payment of duty by the respondents on the mild steel drums which after the consumption of the inputs contained therein, were disposed of by them during the period 4.1998 to 8.1998. The amount of duty involved is Rs. 37.708/ -. The stand taken by the revenue is that the respondents took mod -vat credit on the inputs/chemicals contained in the steel drums, and after consuming these inputs, they had disposed of the empty drums without payment of duty; while they were liable to pay in view of the Board's Circular No. 449/15/99 -CX dated 23.3.1999. But the adjudication authority by relying upon the decision of the Tribunal in the case of CCE v. M/s. Hindustan Lever Ltd.,, 2001 (137) ELT 751 :, 2001 (96) ECR 314 (T), wherein it has been ruled that the drums and cans in which the inputs were received, if sold after the consumption of the inputs as waste and scrap, could not be subjected to central excise duty being not waste arising out of the processing of inputs, dropped the demand against the respondents. The learned Commissioner (Appeals) has upheld that order -in -original of the Asstt. Commissioner.

(2.) The learned JDR has not been able to assail the impugned order of the Commissioner (Appeals) on any ground. He has only submitted that the Revenue had already filed an appeal in the Apex Court and that the Board's Circular No. 449/15/99 -CX dated 23.3.1999 had already been withdrawn by the Board vide another Circular No. 470/36/99 -CX dated 19.7.1999, and as such neither that Circular nor the judgment of the Tribunal in the above referred case could be relied upon by the adjudicating authority and the Commissioner (Appeals). But, in our view, this contention of the learned JDR is misconceived and not liable to be accepted. The learned JDR has fairly conceded that the operation of the Tribunal's judgment had not been stayed by the Apex Court. That being so, the judgments of the Tribunal in the case of CCE v. M/s. Hindustan Lever Ltd.,, 2001 (96) ECR 314 (T) supra, and M/s. West Coast Indus. Gases Ltd. v. CCE, Cochin,, 1994 (52) ECR 11 (T) still hold the filed. No judgment to the contrary has been referred to by the learned JDR. Therefore, I do not find any illegality in the impugned order of the Commissioner (Appeals). In view of the discussion made above, the appeal of the Revenue is rejected.