2010 (8) TMI 561 - AT - Central Excise

Demand - CENVAT credit - Scrap is of capital goods - The appellants took credit on the capital goods first time on 18-8-2001 - Whatever scrap cleared by them during the period prior to 1-4-2000 were clearly arising out of capital goods on which appellants had not taken any credit - The appellants have produced the original invoices issued by client during the relevant period in their favour and the original authority after perusing the same held that the assessee failed to produce original records co-relating the scrap with the goods as per the invoices - The issue that was required to be considered was whether the waste and scrap have arisen out of capital goods on which credit has been taken by the appellants - The burden is on the department to prove that the credit on the said capital goods have been taken before invoking Rule 57-S. The evidence adduced by the appellants are clearly pointing to their not availing any credit on the capital goods for the period prior to 31-3-2010 - The submission by the consultant that during the disputed period defacement of invoices on which credit was taken was mandatory and that invoices produced by them before the original authority were invoices which were not defaced and the same is an evidence to show that no credit was taken is also valid - The order of the Commissioner (Appeals) is set aside and appeal is allowed

Summary

Issues:
Appeal against order of Commissioner (Appeals) dated 23-7-2008; Remand by Final Order No. 40/07-SM(BR); Duty demand on waste and scrap; Confirmation of duty and penalty by original authority; Claim of credit on capital goods; Evidence requirement for co-relation of waste and scrap with capital goods; Invocation of Rule 57-S of Central Excise Rules, 1944; Failure to prove credit on capital goods; Verification of RG 23 Part I and II; Burden of proof on department; Defacement of invoices as evidence.

Analysis:
The appeal before the Appellate Tribunal arises from the order of the Commissioner (Appeals) dated 23-7-2008, following a remand by Final Order No. 40/07-SM(BR), dated 29-12-2006. The case involves the duty demand on waste and scrap, specifically MS scrap, CI scrap, CA scrap, and brass tubes, cleared during 1998-1999 and 1999-2000, totaling Rs. 24,35,343 with a duty of Rs. 3,89,655. The original authority confirmed duty of Rs. 1,39,536 and imposed an equal penalty, upheld by the Commissioner (Appeals).

The key contention revolves around the claim of credit on capital goods by the appellants. The consultant argues that since credit on capital goods was taken only from 18-8-2001, any waste and scrap cleared before 1-4-2000 did not arise from credited capital goods. On the other hand, the department contends that the appellants failed to provide evidence correlating the waste and scrap with the relevant capital goods, supporting the Commissioner (Appeals) order.

The Tribunal analyzed Rule 57-S of the Central Excise Rules, 1944, which applies to waste and scrap arising from credited capital goods. It emphasized the department's obligation to prove credit on capital goods before invoking Rule 57-S. In this case, the appellants demonstrated that they only took credit from August 2001, supported by original invoices from M/s. SAIL. The Tribunal found the department's lack of evidence on credited capital goods and the failure to verify RG 23 Part I and II, which explicitly stated no credit taken on capital goods, as significant shortcomings.

Moreover, the Tribunal highlighted that the burden of proof lies with the department to establish credit on capital goods, which was not met in this case. The consultant's argument regarding the absence of mandatory defacement on invoices for credited capital goods further supported the appellants' position. Consequently, the Tribunal set aside the Commissioner (Appeals) order, allowing the appeal with consequential relief in favor of the appellants.

In conclusion, the Tribunal's detailed analysis focused on the lack of evidence supporting the duty demand on waste and scrap arising from credited capital goods, emphasizing the department's failure to meet the burden of proof required under Rule 57-S of the Central Excise Rules, 1944. The decision underscores the importance of verifying credit on capital goods and correlating waste and scrap with credited items to justify duty demands effectively.