2011 (9) TMI 229 - AT - Central Excise

Payment of Modvat/Cenvat on scrap - Appelant contended that waste and scrap, in question, were arisen out of dismantilation of old plants prior to 1994, when modvat /Cenvat scheme was not introduced - So duty is not required to be paid clearance of scrap of capital goods and inputs - bars, tubes welding electrodes used polythene lining, valves, etc. were non-cenvated goods, hence duty on waste and scrap generated from these items cannot be demanded by the department- revenue has nowhere advanced any evidence to show that the scarp of capital goods was out of modvatable capital goods - Held that no suppression of facts can be attributed to the appellants - Revenue has not challenged the above factual position - Thus appeal of revenue is rejected.

Summary

Issues:
Dispute over clearance of scrap of capital goods and inputs during a specific period. Appeal against the order passed by Commissioner (Appeal) regarding duty payment on scrap. Revenue's challenge on limitation and merits of the case.

Analysis:
The appeal before the Appellate Tribunal CESTAT, NEW DELHI involved a dispute concerning the clearance of scrap of capital goods and inputs during a particular period. The proceedings were initiated against the appellants through a show cause notice, alleging the necessity to pay Central Excise duty on the scrap arising from capital goods on which modvat credit was availed. The original adjudicating authority confirmed the duty demand, leading to an appeal before the Commissioner (Appeals).

On appeal, the Commissioner (Appeals) allowed the appeal on limitation and merits. The appellants argued that the waste and scrap in question arose from dismantling old plants before the introduction of the modvat/Cenvat scheme, making duty payment unnecessary. They also contended that since the capital goods and inputs were non-cenvated goods, duty on the generated waste and scrap could not be demanded. The Commissioner (Appeals) noted the lack of evidence from the revenue to establish that the scrap was from modvatable capital goods.

Regarding the limitation aspect, the Commissioner (Appeals) highlighted that previous show cause notices on the same issue indicated the revenue's awareness of the matter, negating any suppression of facts by the appellants. The revenue failed to provide evidence that the scrap was from modvatable capital goods, and their challenge on limitation was based on the appellants' obligation to prove the limitation bar due to self-removal procedures.

The Appellate Tribunal upheld the Commissioner (Appeals)'s findings, emphasizing that the revenue did not refute the factual positions established by the appellate authority. The Tribunal concluded that the demand was correctly held to be barred by limitation and found no merit in the revenue's contentions, ultimately rejecting the appeal filed by the revenue.

In summary, the Tribunal's judgment addressed the issues of duty payment on scrap of capital goods and inputs, the revenue's challenge on limitation, and the merits of the case, ultimately ruling in favor of the appellants based on the lack of evidence provided by the revenue and the established factual positions from the appellate authority.