COMMISSIONER OF CENTRAL EXCISE Vs. MODI TYRE FACTORY

JUDGEMENT

(1.) THE Revenue has preferred this appeal against the order of the Commissioner (Appeals) setting aside the order -in -original made by the Additional Commissioner by which a duty demand of Rs. 1,86,713/ - was confirmed under Rule 9(2) of the Central Excises Rules, 1944 read with Section 11A of the Central Excise Act, 1944 and a penalty of the like amount was imposed under Rule 173Q read with Section 11 AC and interest was also directed to be paid under Section 11AB of the said Act.

(2.) THE matter was called out for final hearing on 29 -9 -2005. No one appeared for the respondent. After the authorised representative of the department for the appellant Commissioner completed his arguments, the matter was kept in the second sitting to enable the authorised representative of the respondent to appear. However, no one was present through out the day for the respondent and the matter was, therefore, kept today to give a further opportunity to the respondents, to argue the matter. Even today, no one appeared for the respondent. The learned authorised representative for the Department has assisted the court by referring to all the relevant record including the record pertaining to the contentions raised by the respondent during the proceedings.

(3.) IT had come to the notice of the Revenue officials during the course of their visit to the factory premises of the respondent that the respondent assessee was selling the waste arising from the processing of inputs on the strength of private invoices other than those prescribed under Rule 52A of the said rules. It was alleged in the show cause notice that the assessee was required to pay excise duty on clearances of any waste arising from the processing of inputs in respect of which credit had been taken and which may be removed on payment of duty, as if such waste was manufactured in the factory as per the provisions of Rule 57F(18). On being asked to pay appropriate duty, the respondent had filed a declaration under Rule 173B on 5 -12 -1997 and initiated payment of duty under protest. The respondent was availing of Modvat for all excisable goods under Rule 57A and was selling waste of polyscrap, bladder, tube valve and bead wire on the strength of private invoices other than those as prescribed under Rule 52A. They had taken Modvat on the inputs from which the waste was generated.