2011 (8) TMI 163 - AT - Central Excise

CENVAT Credit on the goods rejected by the customers - Since, all the returned goods and their clearance, the batch number did not change and therefore process did not amount to manufacture - the appellant should have reversed the CENVAT Credit taken at the time of clearing the rejected goods - Therefore, the demand of differential duty has to be upheld - the differential duty demand has been confirmed on the ground that the appellant did not produce any evidence to show that CENVAT Credit has not been taken. As regards penalty - Penalty equivalent to duty has been imposed, but no option to pay duty, interest and penalty to the extent of 25% of the duty has been extended by the lower authorities - if the amount of differential duty, interest and penalty to the extent of 25% of the duty is not paid within 30 days, penalty shall be equal to the duty demand as per provisions of Section 11AC of Central Excise Act, 1944.

Summary

Issues:
1. CENVAT Credit on rejected goods.
2. Eligibility of CENVAT Credit for processed goods.
3. Differential duty demand and penalty imposition.

Analysis:
1. The appellant had taken CENVAT Credit on goods rejected by customers and returned to them. The appellant cleared the rejected goods at a lower value and paid duty accordingly. Proceedings were initiated to recover the differential amount between CENVAT Credit availed and duty paid, resulting in a demand of Rs.1,09,517/- and an equal penalty imposition.

2. The appellant argued that if the rejected goods were processed to make them marketable, they should be eligible for CENVAT Credit. However, it was noted that the batch number did not change during the process, indicating that it did not amount to manufacture. Therefore, the appellant should have reversed the CENVAT Credit taken at the time of clearing the rejected goods.

3. The Tribunal found that the demand for differential duty of Rs.81,224/- should be upheld, except for one entry involving CENVAT Credit of Rs.28,293/-. The lower authorities had not considered this claim, so it was remanded to the original adjudicating authority for further review. The penalty imposed was equivalent to the duty, but the appellant was given the option to pay 25% of the duty within 30 days to avoid the penalty being equal to the duty demand as per the provisions of the Central Excise Act, 1944.

4. The issue regarding the correctness of the demand related to a specific invoice was remanded to the original adjudicating authority, while the balance amount of the confirmed differential duty was upheld. The appellant was granted the option to pay 25% penalty within 30 days to avoid a higher penalty.

5. The appeal was decided based on the above terms, with the judgment dictating and pronounced in court.