2010 (8) TMI 274 - AT - Central Excise

Demand cenvat credit - waste and scrap cleared without payment of duty - duty demanded at flat rate without classifying items and without determining rate of duty leviable - contention submitted by the appellant was that waste and scrap of metal generated out of dismantling of machinery are due to wear and tare of machine parts cannot be treated as excisable goods leviable to duty as waste and scrap as defined in note 8(A) of Section 15 of CETA 1985 - Tribunal had taken a view that scrap which is generated from capital goods is not covered by this definition - waste and scrap are not covered by the definition and in any case department has not made any effort to classify the same, it has to be held that appellants have made out a very strong case in their favour Appeal allowed

Summary

Issues:
- Demand of duty on clearances of waste and scrap without payment
- Classification of waste and scrap for duty determination
- Applicability of Rule 3(5A) of Cenvat Credit Rules, 2004
- Interpretation of note 8(A) of Section 15 of CETA 1985

Analysis:

The case involved the appellants engaged in manufacturing excisable goods, facing a demand for duty on clearances of waste and scrap without payment, totaling Rs. 2,88,528, with an imposed penalty equal to the duty. The waste and scrap cleared were capital goods, and duty was demanded as per Sub Rule (5A) of Rule 3 of Cenvat Credit Rules, 2004.

The advocate argued that the duty was demanded at a flat rate without classifying items or determining the duty leviable. He cited precedents emphasizing the need for goods to be classified for duty determination. The Tribunal's decision in a specific case highlighted the requirement for classification under Rule 3(5A) of Cenvat Credit Rules when capital goods are cleared as waste and scrap, necessitating the payment of duty based on transaction value.

Furthermore, the advocate contended that the demand was equivalent to duty leviable under Rule 3(5A) and referenced a case to support the argument that duty demand under Section 11A cannot be confirmed without proper classification and assessment of duty. The issue of whether waste and scrap generated from machinery dismantling should be considered excisable goods under note 8(A) of Section 15 of CETA 1985 was also raised.

The Tribunal considered all arguments and precedents cited. It was noted that waste and scrap from capital goods might not fall under the definition of excisable goods as per note 8(A) of Section 15. Relying on judicial discipline and previous decisions, the Tribunal found in favor of the appellants, emphasizing the lack of effort by the department to classify the waste and scrap. Notably, a substantial portion of the capital goods sold as waste and scrap had not been credited.

In conclusion, considering all factors presented, the Tribunal allowed the appeals, setting aside the impugned orders and ruling in favor of the appellants. The judgment was pronounced in court on 25-8-2010.