Customs, Excise and Gold Tribunal - Calcutta
Sail, Durgapur Steel Plant vs Commissioner Of Central Excise, Bolpur on 16 October, 2001
JUDGMENT
S.S. Sekhon
1. The question raised in this appeal is the levy of duty on mill scale which is a by-product in the nature of waste as submitted by the appellant, emerging in the rolling mills, When steel ingots and billets are rolled, the mill scale along with certain other items like dolomite dust, iron ore dust, coal slush dust is thereafter cycled to the Sintre plant. The Sintre obtained as an output them is sent to the blast furnace. It was submitted, before us today, that 'mill-scale' is not being sold or removed outside the factory premises for the period under demand, the mill scale generated was re-cycled and captively used.
2. Ld. consultant for the appellants fairly conceded that the excitability of 'mill-scale' he is not pressing since he has fairly good case on captive consumption benefit under notfn.no.217/86 and also on the question of time bar.
3. Shri D.K. Bhowmik, ld.JDR for the Revenue submits that the question of excitability of 'mil-scale' is settled vide 1999(113) ELT 606 in the case of M/s. B.H.E.L. v. CCE, Calcutta-II. Therefore once mill-scale has emerged as an intended or unintended product, it is immaterial. When it is emerging from inputs on which modvat has been admittedly claimed, then benefit of notfn.no.19/88 has been correctly denied by the Commissioner and the order should be upheld. He also submitted that the benefit of notfn.no.217/86 was nowhere raised before the lower authorities nor we have any material to determine whether all the 'mill-scale' which emerged during the period under consideration was captively re-consumed or and sold outside the factory premises since admittedly from the paper book the appellant was selling the product in the year 1975. He therefore submitted that the appeal should be dismissed.
4. We have considered the submissions made from both the sides and find that the appellants have conceded to forego the point on excitability of 'mill-scale' as an unintended product and have strongly urged to decide the matter on the eligibility of notfn.no.217/86 or and the question of time bar since the excitability of 'mill-scale' and duty demands on the said products were well within the knowledge of the department. On question from the Bench, the Consultant fairly accepted that no formal application, has been filed as regards the eligibility of notfn.no.217/86 as an additional legal point to be taken, he prayed that the oral submission on this account should be admitted.
5. When, we find that if the 'mill-scale' as per the flow chart submitted before us has been captively consumed, from the Sintre plant, in the manufacture further steel ingots, billets etc.' then the benefit of notfn.no.217/86 should have been considered by the lower authorities. No doubt the appellants had filed and claimed the benefit of notfn.no.19/88, but if the notfn.no.217/86 was eligible, the same should have been considered by the proper officer. Since the facts about the eligibility of this notification are not before us, we would set aside the present order of remand and remit the case back to the adjudicating officer, to consider the eligibility of notfn.no.217/86 after ascertaining whether entire 'mill-scale' was captively consumed or otherwise. While conducting the remand proceedings, we would expect him to determine the question of time bar afresh, for such demands as may be held to be liable on 'mill-scale' not eligible for the benefit of notfn.no.217/86. The penalty imposed could be determined in relation to the duty, if any, determined in the remand proceedings.
6. Appeal is disposed of in the above terms as remand.
Dictated in the court.