2014 (8) TMI 400 - AT - Central Excise

Requirement for claiming remission of duty - clearance of defective finished goods as Waste/scrap goods - Held that - Commissioner (Appeals), has recorded a different finding that the defective goods are Arc carbon which were later hammered/crushed to convert into waste and scrap and removed from the factory without payment of duty. It is his observation that after completion of manufacturing processes, when defective arc-carbon emerged, the same ought to have been entered into RG-1 for discharging duty liability at the time of removal and in case it is found unfit, it is necessary that a remission application be filed under Rule 49 of erstwhile Central Excise Rules, 1944 - No reason to interfere with the said order which is in consonance with the principle of law laid down - Decided against assessee.

Issues involved: Classification of waste and scrap generated during the manufacture of finished excisable goods under Central Excise duty and reversal of cenvat credit availed on such inputs.

Analysis:
1. Classification of waste and scrap: The Appeals involved the classification of waste and scrap generated during the manufacture of finished excisable goods by M/s Eveready Industries India Ltd. The Department issued a demand notice alleging that the waste and scrap attract Central Excise duty and that the cenvat credit availed on such inputs should be reversed. The period involved in the Department's Appeal was from July 1987 to May 1991, with a total duty of Rs. 1,28,381, while in the Assessee's Appeal, the period was from October 1999 to March 2000, with a total duty confirmed as Rs. 25,138.

2. Contentions of the Appellant: The Appellant argued that the waste and scraps generated were unusable and not reusable as they were broken and hammered into small bits before disposal. The Appellant cited judgments of the Hon'ble Supreme Court to support their contention. The Appellant further contended that the waste and scrap were not classifiable under Heading 85.45 or Heading 28.03 as alleged by the Department, as they did not conform to the items mentioned under those headings and were not primary products.

3. Revenue's arguments: The Revenue reiterated the findings of the ld. Commissioner (Appeals) and argued that the waste and scrap of carbon were covered under Heading 28.03 of CETA, 1985 during the material time, and the demand for duty should have been confirmed.

4. Decision of the Tribunal: The Tribunal carefully considered the submissions from both sides and analyzed the orders of the ld. Commissioner (Appeals). The ld. Commissioner (Appeals) had initially held that the waste and scrap could not be classified under the relevant tariff sub-heading and were non-excisable/non-dutiable. The Tribunal agreed with this observation, stating that the waste and scrap emerged unintentionally during the manufacturing process and were not consciously produced to avoid dutiability. The Tribunal referred to relevant judgments and the Central Excise Rules to support its decision.

5. Final Judgment: The Tribunal upheld the order-in-appeal dated 09.01.2007, which favored the Assessee, M/s Eveready Industries India Ltd., and set aside the order-in-appeal dated 27.07.2007. Consequently, the Appeal filed by the Revenue was rejected, and the Appeal filed by the Assessee was allowed. The Tribunal emphasized that the waste and scrap should be treated as non-excisable/non-dutiable as they did not fall under a specific entry in the Central Excise Tariff and were not intended for further processing into commercial goods.

This detailed analysis highlights the classification issue regarding waste and scrap generated during manufacturing and the Tribunal's decision based on legal principles and precedents cited during the proceedings.

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