2011 (10) TMI 135 - AT - Central Excise

Manufacture of excisable goods viz. Polyethylene Jelly Filled Cables falling under Chapter 8544 of Customs Excise Tariff Act, 1985 - various kinds of waste and scrap are generated which are disposed of to various buyers on the basis of bids received on tender notice - cleared the scrap without payment of duty to these buyers - Commissioner (Appeals) dt.18.09.2002, holding that waste and scrap are not excisable. hence, the respondents filed a refund claim - against which the Revenue is in appeal - respondents have produced Chartered Accountant s certificate, but the Chartered Accountant s certificate did not specify the records to come to the conclusion that duty has not been collected - Held that Waste and scrap was not liable to duty when it was cleared and original adjudicating authority s observation that the duty amount was not indicated separately is irrelevant - The appellant had produced Chartered Accountant s certificate.This could have been verified - Hence, appeal of revenue disposed off.

Summary

Issues:
1. Duty liability on waste and scrap generated during the manufacture of excisable goods.
2. Refund claim filed by the appellant for the duty amount paid during the investigation.
3. Dispute regarding unjust enrichment and the acceptance of Chartered Accountant's certificate.
4. Non-appearance of the respondent for personal hearings and the subsequent decision on the refund claim.
5. Compliance with the directions given in the remand order by the original adjudicating authority.
6. Verification of invoices and duty element in the goods cleared.

Analysis:
1. The appellant, engaged in the manufacture of excisable goods, generated waste and scrap during the production of Polyethylene Jelly Filled Cables. The dispute arose when the respondents cleared the scrap to buyers without paying duty, leading to a demand of Rs.19,15,268. The Commissioner (Appeals) later ruled in favor of the appellant, stating that waste and scrap were not excisable.

2. Following the favorable order, the appellant filed a refund claim for the Rs.10 lakhs paid during the investigation. The original adjudicating authority sanctioned the refund, but the Revenue appealed to the Commissioner (Appeals), who remanded the matter for further verification.

3. The issue of unjust enrichment was raised, with the Revenue arguing that the Chartered Accountant's certificate alone was insufficient to prove no unjust enrichment. The respondent's non-appearance for personal hearings was attributed to a former employee failing to hand over hearing notices, leading to a belief that no duty was payable on the waste and scrap.

4. The original adjudicating authority rejected the refund claim, citing unjust enrichment. The Commissioner (Appeals) noted discrepancies in the verification process and directed detailed verification, which was not followed by the adjudicating authority. The appellant's consolidated invoicing without a separate duty element was a point of contention.

5. The presiding judge found no merit in further litigation, emphasizing that waste and scrap were not duty liable. The failure to follow the Commissioner's directions for verification and the limited personal hearings offered were highlighted, leading to the rejection of the Revenue's appeal and the disposal of the respondent's cross objection.

This detailed analysis covers the key issues and the court's decision on each aspect of the legal judgment.