2012 (6) TMI 757 - AT - Central Excise

Availment of CENVAT Credit - Non maintenance of separate accounts - Held that - Bagasse emerges in course of crushing of the sugarcane. It may be noted that crushing of sugarcane is necessary to extract canesugar juice which in turn is processed for production of sugar and molasses. Bagasse is the waste product left after the crushing of sugarcane. Therefore, by no stretch of imagination it can be said that the assessee possibly could have maintained separate accounts for the inputs for production of sugar and molasses (excisable item) and bagasse. Thus, in our considered view, the amendment in Finance Act, cited by Shri Sanjay Jain, AR and the Board s Circular would not make any difference in the facts and circumstances of the case. Moreover, neither the show cause notice nor the impugned order-in-appeal mentions as to which common Cenvat credit availed inputs have been used in manufacture of sugar and molasses (dutiable final product) and bagasse (exempted final product. Since Bagasse emerges at sugarcane crushing stage, there is no possibility of any inputs-chemicals, etc., having been used at that stage - Decided in favour of assessee.

Summary

Issues:
1. Interpretation of Rule 6(3) of Cenvat Credit Rules, 2004 regarding the payment of a specific amount for bagasse.
2. Applicability of the judgment in the case of CCE, Meerut-I v. Shakumbari Sugar & Allied Industries Ltd.
3. Impact of the amendment in the definition of excisable goods on the treatment of bagasse as an exempted excisable good.

Analysis:
1. The appellant, engaged in the manufacture of sugar and molasses, availed Cenvat credit on excise duty paid on inputs. The dispute arose regarding the treatment of bagasse, a by-product of sugarcane crushing, under Rule 6(3) of the Cenvat Credit Rules, 2004. The department demanded payment equal to 8% of the sale value of bagasse due to the alleged non-maintenance of separate accounts for inputs used in the production of dutiable final products and the exempted final product, bagasse. The Assistant Commissioner confirmed the demand, leading to an appeal to the Commissioner (Appeals) and subsequently to the Tribunal.

2. The appellant relied on the judgment in the case of CCE, Meerut-I v. Shakumbari Sugar & Allied Industries Ltd., which was upheld by the Supreme Court. The appellant argued that this precedent favored their position and contended that the impugned order was incorrect. The Tribunal considered this argument and found that the appellant could not have maintained separate accounts for inputs used in the production of sugar, molasses, and bagasse, given the nature of bagasse as a by-product of sugarcane crushing. The Tribunal concluded that the amendment in the Finance Act and the Board's Circular did not alter the circumstances of the case, ultimately setting aside the impugned order.

3. The Departmental Representative defended the impugned order, citing the Board Circular clarifying the treatment of bagasse as an exempted excisable good. However, the Tribunal noted that the lack of specificity in identifying the common inputs used for sugar, molasses, and bagasse production, coupled with the nature of bagasse emergence at the sugarcane crushing stage, rendered the department's argument unconvincing. The Tribunal found merit in the appellant's contention and allowed the appeal and stay applications, setting aside the impugned order in favor of the appellant.