2018 (11) TMI 1810 - AT - Central Excise

Reversal of CENVAT Credit - capital goods cleared as waste and scrap - Rule 3(5A) of the Cenvat Credit Rules, 2004 - HELD THAT - We have perused the list of goods attached to both the Show Cause Notices. No doubt, such items are unusable waste and scrap. These are mostly worn out items such as scrap cables, components, railway railings plastic drum etc. None of the items are recognizable as capital goods. Further Revenue has failed to undertake any exercise to establish whether any credit was availed by the appellant on such items in the first place. We have perused the decision of Hon ble Supreme Court in the case of Auto Ignition Ltd. 2008 (4) TMI 43 - SUPREME COURT . The Apex Court has taken the view that in the absence of any proof, demand raised by issuing Show Cause Notices cannot be sustained. There are no justification for the demand of duty - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Interpretation of Rule 3(5A) of the Cenvat Credit Rules, 2004 regarding payment of duty on waste and scrap of capital goods.
- Whether the demand for Central Excise Duty on waste and scrap of capital goods is justified.
- Burden of proof on the Revenue to establish availing of Modvat/Cenvat Credit by the appellant.

Analysis:
1. The appellant, engaged in manufacturing petroleum products, faced demands for Central Excise Duty on waste and scrap of capital goods cleared during specific periods. The demands were based on Rule 3(5A) of the Cenvat Credit Rules, 2004, requiring payment of duty on the transaction value of cleared capital goods.

2. The appellant contested the demands, arguing that most items cleared were not capital goods eligible for Cenvat Credit. They highlighted that certain items, like steel structural support and locomotives, were never credited under Cenvat. Additionally, they claimed that the cleared items were unusable waste and scrap, not recognizable as capital goods.

3. The appellant further contended that Rule 3(5A) pertains to recognizable capital goods, which the cleared items were not. They emphasized that the Revenue failed to prove the availing of Modvat/Cenvat Credit on the items in question, citing legal precedents to support their stance.

4. After hearing both sides and examining the records, the tribunal found that the cleared items were indeed waste and scrap, not identifiable as capital goods. The Revenue had not demonstrated the availing of credits on these items, as required by Rule 3(5A).

5. Referring to a Supreme Court decision, the tribunal emphasized the Revenue's burden to prove the appellant's credit availing, which was not met in this case. Following the legal precedent, the tribunal concluded that there was no basis for the duty demand. Consequently, the impugned orders were set aside, and the appeals were allowed.

6. In summary, the tribunal ruled in favor of the appellant, dismissing the demands for Central Excise Duty on waste and scrap of capital goods due to the lack of evidence supporting the Revenue's claims and the items not meeting the criteria of recognizable capital goods under Rule 3(5A).