2012 (8) TMI 852 - AT - Central Excise

Waiver of pre deposit - CENVAT Credit demand - Held that - appellant admittedly have used 20% to 40% of fresh plastic along with plastic waste and scrap for manufacture of PVC/PE granules and in respect of duty paid fresh plastic used as input, they have availed Cenvat credit. The appellant have paid the duty on the final product to the extent possible by availing Cenvat credit and have paid the balance amount of duty through PLA whose self-credit has been taken in terms of Notification No. 56/2002-C.E. According to the Department their product is fully and unconditionally exempt from duty under Notification No. 4/2006-C.E. (Sl. No. 78) as their final products have been manufactured mainly out of plastic waste and scrap. If this plea of the Department is accepted, the appellant s duty liability would be nil. By availing exemption Notification No. 56/2002-C.E., the appellant have got refund by way of self-credit of the duty which had been paid by them through PLA. Thus so far as the appellant are concerned, this is a revenue neutral situation, as irrespective of whether the appellant availed Notification No. 56/2002-C.E. or Notification No. 4/2006-C.E. (Sl. No. 78) their net duty liability would be nil - Stay granted.

Issues:
1. Interpretation of Notification No. 4/2006-C.E. and Notification No. 56/2002-C.E.
2. Eligibility for duty exemption and Cenvat credit.
3. Adjudication of show cause notices.
4. Appeal against Order-in-Original and Order-in-Appeal.
5. Stay application for pre-deposit of duty demand and Cenvat credit demand.

Interpretation of Notification No. 4/2006-C.E. and Notification No. 56/2002-C.E.:
The case involved a unit availing exemption under Notification No. 56/2002-C.E. for manufacturing PE/PVC granules using plastic scrap and fresh PVC. The dispute arose as the department contended that the goods were fully exempt under Notification No. 4/2006-C.E., thus questioning the duty payment and exemption availed. The appellant argued that the exemption under Notification No. 4/2006-C.E. applied only if granules were manufactured solely from plastic scrap, not when fresh plastic was also used. The Tribunal noted the appellant's duty payment through Cenvat credit and PLA, considering the product's exemption under Notification No. 4/2006-C.E. If the Department's plea was accepted, the appellant's duty liability would be nil. The Tribunal found merit in the appellant's argument, viewing the situation as revenue-neutral regardless of the exemption applied. Consequently, the Tribunal waived the pre-deposit requirement for the appeal, staying the recovery until appeal disposal.

Eligibility for duty exemption and Cenvat credit:
The appellant used fresh plastic along with plastic waste for granule manufacturing, availing Cenvat credit for the duty paid on fresh plastic. They paid duty on the final product partly through Cenvat credit and partly through PLA, receiving a refund under Notification No. 56/2002-C.E. The Department contended that since the final products were predominantly from plastic waste, full duty exemption under Notification No. 4/2006-C.E. applied, rendering the appellant ineligible for Cenvat credit or exemption under Notification No. 56/2002-C.E. The Tribunal analyzed the appellant's process and found their plea for waiver of pre-deposit reasonable, granting the stay application due to the revenue-neutral impact on duty liability.

Adjudication of show cause notices:
The Assistant Commissioner issued show cause notices for duty demand, interest, and penalties, alleging erroneous duty refund and disallowed Cenvat credit. The Commissioner (Appeals) upheld the duty demand but set aside the penalty. The appellant appealed against this order, leading to the current appeal and stay application. The Tribunal reviewed the arguments presented by both sides, ultimately siding with the appellant's interpretation of the notifications and granting the stay on recovery pending appeal resolution.

Appeal against Order-in-Original and Order-in-Appeal:
The appellant appealed against the Assistant Commissioner's Order-in-Original, which confirmed duty demand, interest, and penalties, and the Commissioner (Appeals)'s Order-in-Appeal, which upheld the duty demand but set aside the penalty. The current appeal challenged these decisions, with the Tribunal considering the arguments put forth by both parties to reach a decision in favor of the appellant's plea for waiver of pre-deposit and stay on recovery.

Stay application for pre-deposit of duty demand and Cenvat credit demand:
During the hearing, the appellant requested a waiver of the pre-deposit requirement for duty demand, Cenvat credit demand, and interest, citing a strong prima facie case. The Department opposed the application, emphasizing the Commissioner (Appeals)'s findings. The Tribunal evaluated the submissions and found merit in the appellant's argument, granting the stay application and waiving the pre-deposit requirement until the appeal's final disposal.

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