2015 (7) TMI 183 - AT - Central Excise

Duty demand on waste and scrap generated - Whether the remnant material cleared by the appellant to M/s. Shridhar Metal Works is clearance for the home consumption and leviable to excise duty or it is captive consumption and exempted under Notification No. 67/95-CE dated 16/3/1995 - clearance of Aluminium dross, Aluminium turning and Aluminium oily flash - Held that - Part of the premises of the appellant was given on leave and licence agreement to different entity i.e. M/s. Shridhar Metal Works who is unrelated to the appellant therefore in our view the premises which is used by M/s. Shridhar Metal Works is out side premises of the appellant. Secondly M/s. Shridhar Metal Works is an independent entity who carried out job work on the material supplied by the appellant in such situation M/s. Shridhar Metal Works has independent manufacturer of aluminium ingots therefore removal of remnant material to M/s. Shridhar Metal Works cannot be treated as captive consumption and therefore the same shall not be entitled for exemption under Notification No. 67/95 - if any other person carry out the manufacture, even in the premises of another manufacturer for the purpose of job work basis it cannot be said that job worker is hired labourer therefore job work shall be treated as independent manufacture and not the premises owner It has been alleged in the show cause notice that since the scrap is a finished goods, it is not permitted to be cleared in terms of Rule 4(5)(a) to a job worker. However, it is seen that the scrap so sent to the job worker is returned back to the Appellants in the form of ingots, which is then further processed in the Appellants unit to manufacture flats, strips, rods, which are cleared on payment of duty. Thus there is absolutely no loss of any revenue to the Government. The waste and scrap generated are the remnants emerging as a necessary consequence of the manufacturing activity of cold rolling and cold drawing of copper bar undertaken by the appellants for bringing out the final product. These waste and scrap generated during the process of manufacture instead of being disposed of in the market, is being recycled and re-converted into copper bars, by following the procedure of Rule 4(5)(a) as the appellants do not have any facility for such reconversion. They further consumed the same captively in the manufacture of excisable final product. Merely because the waste and scrap so generated has been made dutiable when sold, it cannot be said that new excisable product has been manufactured. Removal of remnant by appellant to the job worker is not liable to duty and the adjudicating authority has wrongly confirmed the duty demand and imposed penalties. Since, we have taken view that the removal of remnant is not dutiable - Decided in favour of assessee.

Summary

Issues Involved:
1. Confirmation of duty demands and penalties on the clearance of Aluminium dross, Aluminium turning, and Aluminium oily flash.
2. Whether the remnant material cleared by the appellant to M/s. Shridhar Metal Works is for captive consumption or home consumption.
3. Applicability of Rule 4(5) of Cenvat Credit Rules, 2004.
4. Excisability of the remnant material.
5. Whether penalty under Section 11AC is warranted.

Issue-wise Detailed Analysis:

1. Confirmation of Duty Demands and Penalties:
The Commissioner of Central Excise & Customs & Service Tax, Aurangabad confirmed demands of Rs. 1,59,33,593/- and Rs. 2,70,87,131/- against M/s. Aurangabad Electricals Ltd. and M/s. Shridhar Metal Works respectively under the proviso to Section 11A(1) of the Central Excise Act, 1944. Additional demands of Rs. 56,64,235/- and Rs. 83,05,124/- were also confirmed under Section 11A(1). Interest and penalties were imposed under Sections 11AB, 11AA, and 11AC of the Central Excise Act, 1944, and Rule 25 of the Central Excise Rules, 2002. The appellant challenged the confirmation of duty and penalties on the clearance of Aluminium dross, Aluminium turning, and Aluminium oily flash to M/s. Shridhar Metal Works.

2. Captive Consumption vs. Home Consumption:
The appellant argued that the remnant material was not cleared outside the factory premises but was given to M/s. Shridhar Metal Works within the same premises for job work. The resultant Aluminium ingots were used captively in the manufacture of motor vehicle parts, which were cleared on payment of excise duty. The Tribunal observed that M/s. Shridhar Metal Works, being an independent entity, carried out the job work within a part of the appellant's factory premises taken on leave and license basis. Therefore, the premises used by M/s. Shridhar Metal Works was considered outside the appellant's factory premises, and the removal of remnant material was treated as home consumption, attracting excise duty.

3. Applicability of Rule 4(5) of Cenvat Credit Rules, 2004:
The appellant contended that the removal of remnant material for job work is covered under Rule 4(5)(a) of Cenvat Credit Rules, 2004, which allows the removal of inputs for job work without payment of duty. The Tribunal agreed, stating that the remnant material, after conversion into Aluminium ingots, was used in the manufacture of motor vehicle parts, which were cleared on payment of duty. The Tribunal referred to various judgments, including Wyeth Laboratories Ltd. vs. Collector of Central Excise, Bombay, and Shakti Wire Products vs. Commissioner of C.Ex. Mumbai-IV, supporting the view that such removal for job work is permissible without payment of duty under Rule 4(5)(a).

4. Excisability of Remnant Material:
The appellant argued that the remnant material was not excisable goods and thus not chargeable to excise duty. The Tribunal did not delve into this aspect, as it had already concluded that the removal of remnant material for job work was not liable to duty based on Rule 4(5)(a) of Cenvat Credit Rules, 2004, and related judgments.

5. Penalty under Section 11AC:
The appellant contended that the demand raised was within the normal time period, and therefore, the penalty under Section 11AC was not warranted. The Tribunal, having decided that the removal of remnant material was not dutiable, found the imposition of penalties to be incorrect.

Conclusion:
The Tribunal allowed the appeal, concluding that the removal of remnant material for job work was not liable to excise duty. The demand of duty and imposition of penalties by the adjudicating authority were found to be unsustainable. The appeal was allowed with consequential relief in accordance with the law.