2014 (9) TMI 527 - HC - Central Excise

Waiver of pre dpeosit - Exemption under the Notification No. 89/95-C.E. - Held that - With regard to the nature of manufacturing activity carried on by the appellant and the process viz. refining process they get refined vegetable oil as the main product and soap stock as a by-product which was further converted as acid oil and soap sludge and whether these products would clarify as waste and entitled for exemption under Notification No. 89/95-C.E. are questions of fact which the appellant/assessee has to establish before the CESTAT and the CESTAT would go into the said aspects and render a final finding. reason given by the CESTAT cannot be faulted with. However taking note of the fact that the status of the assessee as Small Scale Industry and such fact is not in dispute the appellant is hereby directed to make pre-deposit of 5, 00, 000 - Decided partly in favour of assessee.

Summary

Issues:
1. Excise duty on by-products cleared from factory.
2. Interpretation of Notification No. 89/95-C.E.
3. Applicability of exemption to by-products.
4. Limitation period for invoking demand.
5. Pre-deposit amount for appeal.

Analysis:
1. The appellant, a manufacturer of refined oils, procured crude vegetable oils and obtained refined vegetable oil as the main product and soap stock as a by-product. The appellant did not pay excise duty on the by-products cleared from the factory. The dispute arose when the Department issued a show cause notice demanding payment of duty amounting to &8377; 23,81,941/- along with interest and proposed a penalty.

2. The appellant contended that the by-products, acid oil, and soap sludge, should be considered as waste and hence exempt from duty under Notification No. 89/95-C.E. The First Appellate Authority held that the by-products did not fall under the exemption as they were obtained after processing soap stock and had distinct characteristics not qualifying as waste under the Central Excise Tariff Act, 1985.

3. The appellant further argued that the demand was time-barred as the Department could not invoke the extended period of limitation due to the availability of all transaction details in the books of accounts. However, both the Original Authority and the First Appellate Authority disagreed, stating that the facts came to light during a search operation at the appellant's premises.

4. The Customs, Excise and Service Tax Appellate Tribunal (CESTAT) upheld the decision that the by-products were not waste and directed the appellant to make a pre-deposit of &8377; 8,00,000/- within eight weeks. The appellant appealed seeking complete waiver of pre-deposit, emphasizing their status as a small scale industry and citing relevant legal precedents and circulars.

5. The High Court, after considering the arguments, modified the pre-deposit amount to &8377; 5,00,000/- based on the appellant's status as a Small Scale Industry. The Court affirmed the other directions issued by CESTAT and disposed of the Civil Miscellaneous Appeal without costs, closing the connected Miscellaneous Petition.