2010 (10) TMI 677 - AT - Central Excise

Demand - Separate book of accounts for claiming the cenvat for common input - Rule 57CC of the Central Excise Rules, 1944 - The compounded rubber products manufactured and cleared by the respondent during the relevant period was rightly classified under heading 4005 and sub-heading 4005.90 by the Revenue inasmuch as, admittedly, the manufacturer had availed MODVAT credit of the duty paid on inputs used in the manufacture of the said goods - In this scenario, the products cleared by them after availing MODVAT credit on inputs was rightly classifiable under the residuary sub-heading 4005.90, residuary to SH 4005.10 - Before application of Rule 57CC, the manufacturer should classify his final products, correctly and ascertain whether some of such products are dutiable and other exempted - Appeal is disposed of

Issues involved:
- Classification of compounded rubber products under different tariff headings
- Availment of MODVAT credit without maintaining separate accounts
- Application of Rule 57CC for payment of duty
- Interpretation of Tribunal's decision in Nicholas Piramel India Ltd.
- Correct classification of final products for levy of duty

Classification of compounded rubber products under different tariff headings:
The appeal was filed by the Revenue against the decision of the Commissioner (Appeals) setting aside the demand of duty confirmed against the assessee for clearing compounded rubber products without payment of duty. The respondent was clearing goods under SH 4005.10 at a 'nil' rate of duty and also under SH 4005.90 on payment of duty. The department demanded duty on the products cleared at a 'nil' rate, contending they should be charged at 18% due to MODVAT credit availed on inputs. The Commissioner (Appeals) allowed the appeal based on a Supreme Court decision, but the Revenue challenged this decision.

Availment of MODVAT credit without maintaining separate accounts:
The respondent was availing MODVAT credit on common inputs without maintaining separate accounts for dutiable and exempted final products. The department demanded duty on products cleared at a 'nil' rate, arguing they should be charged at 18% due to MODVAT credit. The adjudicating authority confirmed the demand, imposing a penalty. The Commissioner (Appeals) allowed the appeal, stating the procedure followed was in line with a Supreme Court decision.

Application of Rule 57CC for payment of duty:
The Revenue argued that due to availing MODVAT credit on inputs, the products should be classified under SH 4005.90 attracting 18% duty, not under SH 4005.10. The Revenue contended that Rule 57CC could not be applied in this scenario. The Tribunal found that correct classification of final products was essential for levy of duty and that the Commissioner (Appeals) erred in focusing on Rule 57CC without considering the correct classification of goods.

Interpretation of Tribunal's decision in Nicholas Piramel India Ltd.:
The respondent cited a Tribunal decision regarding reversal of credit on inputs for exempted final products. However, the Tribunal's decision was overturned by the High Court, making it irrelevant to the current case. The Tribunal noted that the issue in the present case was distinct from the Nicholas Piramel India Ltd. case.

Correct classification of final products for levy of duty:
The Tribunal held that the compounded rubber products should be classified under SH 4005.90 due to MODVAT credit availed by the manufacturer. The Commissioner (Appeals) decision to focus on Rule 57CC without considering correct classification was deemed unsustainable. The Tribunal emphasized that manufacturers must correctly classify final products before applying Rule 57CC for duty payment.

In conclusion, the Tribunal set aside the Commissioner (Appeals) decision, restoring the original order without imposing a penalty on the respondent, emphasizing the importance of correct classification for levy of duty.

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