Per P.K. Das : The relevant facts of the case, in brief, are that the respondents are engaged in the manufacture of Cement and Clinkers classifiable under sub heading 2502.29 and 2502.10 of the Schedule to the Central Excise Tariff Act, 1985. It has been alleged that during the period from November, 1997 to March, 2002, the respondents cleared various scraps of capital goods of metal and rubber without payment of duty. It has further been alleged that the respondents were required to pay the duty under Rule 57-S of the erstwhile Central Excise Rules, 1944. The Adjudicating Authority confirmed the demand of duty prior to 1.4.2000. He has dropped the demand on scrap of capital goods cleared on or after 1.4.2000. The assessee and the Revenue both filed appeals before the Commissioner (Appeals). By the impugned order, the Commissioner (Appeals) allowed the appeal of the respondents. The appeal filed by the Revenue was rejected. Hence the revenue filed this appeal.

2. The learned DR on behalf of the Revenue reiterates the grounds of appeal. He submits that process of wear and tear and assembling of capital goods amounts to manufacture. He further submits that waste and scrap of capi