2007 (6) TMI 35 - AT - Central Excise

Cenavt/Modvat- Department contended that appellant not liable for credit on the waste and scrape cleared by him after process and accordingly demand were made alongwith penalty - Held that department contention was correct and allowed

Summary

Issues:
Appeal against Order-in-Original and Order-in-Appeal regarding availing of Cenvat credit on rejected goods cleared as waste/scrap.

Detailed Analysis:

1. Manufacture of Aluminium Foils and Rejection by Customers:
The appellant, engaged in manufacturing Aluminium Foils, cleared goods to customers, some of which were rejected for being off-specification. The rejected goods were brought back to the factory under Rule 16 of Central Excise Rules, 2002. Appellant cleared conforming goods on payment of duty and treated the rejected balance as waste/scrap. Show cause notice was issued for demanding excess credit availed on rejected goods cleared as waste/scrap, alleging no manufacture. Adjudicating authority and Commissioner (Appeals) upheld the demand and imposed penalties.

2. Contentions of the Appellant:
The appellant argued that the process applied to rejected goods amounted to manufacture. They claimed that waste/scrap generated was part of the manufacturing process, justifying the availed credit. The appellant relied on precedents to support their position that duty is not payable on non-marketable goods, which were later scrapped. The appellant contended that since duty was not paid on non-marketable goods initially, the credit availed on refinished goods was lawful.

3. Analysis of Central Excise Law and Rule 16:
The Tribunal analyzed the Central Excise law, emphasizing that duty is payable on removal of dutiable goods. It noted that duty liability is deferred until goods are removed from the factory premises. The Tribunal observed that once duty is paid on removal of goods, the marketability of goods becomes irrelevant. Rule 16 allows for bringing back duty-paid goods for further processing, subject to certain conditions. The rule specifies that if the process applied does not amount to manufacture, the credit availed must be reversed.

4. Decision on Demand and Penalties:
The Tribunal concluded that the waste/scrap from rejected goods did not result from a manufacturing process. Therefore, the demand for excess credit was upheld as legal and correct. Regarding penalties imposed under Section 11AC and Rule 25, the Tribunal found them unwarranted due to a possible misunderstanding of Rule 16. The penalties were set aside as the issue primarily involved interpreting Rule 16 rather than intentional misuse of credit.

5. Final Verdict:
The Tribunal upheld the demand for duty payment on the appellants but set aside the penalties imposed. The decision was made based on the correct interpretation of Rule 16 and the understanding that the penalties were not justified in the circumstances. The appeals were allowed accordingly.

This detailed analysis of the judgment highlights the key issues, arguments presented, legal provisions applied, and the final decision rendered by the Appellate Tribunal CESTAT, Mumbai.