2013 (9) TMI 420 - HC - Central Excise

Stay - Activity Manufacture OR Not Goods Marketable OR Not - processing of waste oil - process of dehydration, distillation, clay polishing and filtration etc. By means of the aforesaid processing, impurities etc. are being removed from the used/burnt oil. The oil so obtained from such waste/used oil is being packed and sold as base oil, lubricating oil and transformer oil etc. to the consumers - Revenue was of the view that the processing of oil amounts to manufacture in view of Note 4 of Chapter 27 - the process undertaken by the Company, in respect of the waste oil, is adoption of a treatment to render the product marketable to the consumers and hence amount to manufacture by virtue of Section 2(f)(ii) of the Act. Held that - Note 4 of Chapter 27 provides that in relation to the lubricating oils and lubricating preparation of heading 2710, the adoption of any other treatment to render the product marketable to the consumer amounts to manufacture. The Tribunal, having regard to the entire facts and circumstances, has directed the Company to deposit only 50% of the duty and waived the pre requisite requirement of deposit of the balance amount of the duty, interest and the penalty Waiver of Pre deposit - The appellants were not able to make out a strong, prima facie case, which may warrant to allow complete waiver of the pre requisite requirement of deposit of the duty - We are further of the view that, having regard to the entire facts and circumstances, the order of the Tribunal directing to deposit 50% of the duty demanded and allowing the waiver of the balance amount of duty, interest and the penalty as also the waiver of the deposit of entire amount of penalty, the Director of the Company was wholly justified and does not suffer from any error and does not require any interference.

Summary

Issues:
Challenging order rejecting Miscellaneous Applications and maintaining order passed under Section 35 of the Central Excise and Salt Act, 1944.

Comprehensive Analysis:

1. Facts and Background:
The case involves two Appeals challenging the rejection of Miscellaneous Applications and upholding orders passed under Section 35 of the Central Excise and Salt Act, 1944. The Appellant, a Private Limited Company, engaged in procuring lubricant oil and processing waste/used oil, faced a demand for Central Excise duty on the processed oil.

2. Legal Dispute:
The dispute centered around whether the processing of waste oil by the Company amounted to manufacturing under Section 2(f)(ii) of the Act, read with Note 4 of Chapter 27 of the Central Excise Tariff. The Department argued that the treatment of waste oil rendered it marketable, thus constituting manufacturing and attracting duty liability.

3. Commissioner's Order and Tribunal's Decision:
The Commissioner upheld the duty demand, interest, and penalties imposed on the Company and its Director. Subsequently, the Tribunal allowed the Stay Applications in part, directing the Company to deposit 50% of the duty demanded within a specified period.

4. Appellate Proceedings:
The Company appealed the Tribunal's decision to the High Court, arguing against the requirement to deposit 50% of the duty demanded. The Court dismissed the Appeal, noting the absence of financial hardship arguments and directed the appellants to move an application before the Tribunal for review/rectification.

5. Review Application and Tribunal's Order:
The appellants filed Miscellaneous Applications for review/rectification of the Tribunal's order, which were subsequently dismissed by the Tribunal, maintaining its earlier decision to direct the deposit of 50% of the duty demanded.

6. Legal Arguments and Court's Analysis:
The appellants contended that similar units were not subjected to duty on processed oil, citing relevant legal precedents. However, the Court emphasized the importance of establishing undue financial hardship for waiver of duty deposit and noted the lack of evidence supporting the appellants' claims regarding other units.

7. Judicial Decision:
The Court held that the appellants failed to establish a strong prima facie case for complete waiver of duty deposit. It upheld the Tribunal's order directing the deposit of 50% of the duty demanded and dismissed the appeals, emphasizing the need for uniform application of Central Excise laws.

8. Conclusion and Directions:
The Court directed the Appellant to deposit 50% of the duty within a specified period and instructed the Tribunal to expedite the appeal proceedings. The judgment clarified that its observations would not prejudice the Tribunal's decision on the merits of the case.