2023 (2) TMI 1232 - AT - Central Excise

Recovery of Central Excise duty alongwith interest and penalty - retention of scrap generated from the raw material received by them from the principal manufacturer namely KEC International, Larsen and Tubro Ltd. etc. - contravention of Rule 4, 6 8 of Central excise Rules, 2002 - HELD THAT - In case of Raaja Magnetics Ltd. 2017 (6) TMI 800 - CESTAT BANGALORE , on similar issue it was held that the value of scrap not includable in assessable value. The Commissioner (Appeals) has in the appellant own case following the decision of PR. ROLLING MILLS PVT. LTD. VERSUS COMMISSIONER OF C. EX., TIRUPATHI 2009 (3) TMI 444 - CESTAT, BANGALORE has allowed the appeals and held that the money value of the scrap retained by the appellant does not represents additional consideration for the appellant and it is not liable to be included in the assessable value of job worked goods being cleared on payment of duty to the principal manufacturer. The retention of scrap/ waste arised during job work does not depress the job work conversion charges, the same are not included in the assessable value. There are no merits in impugned order or the submissions made by the authorized representative - appeal allowed.

Summary

Issues Involved:
1. Demand and recovery of Central Excise Duty.
2. Imposition of interest under Section 11AB of Central Excise Act, 1944.
3. Imposition of penalty under Section 11AC of Central Excise Act, 1944.
4. Imposition of penalty under Rule 25 of Central Excise Rules, 2002.
5. Confiscation of goods under Rule 25 of Central Excise Rules, 2002.
6. Imposition of penalty on Managing Director under Rule 26 of Central Excise Rules, 2002.

Detailed Analysis:

1. Demand and Recovery of Central Excise Duty:
The Commissioner of Central Excise Nagpur confirmed the demand and recovery of Central Excise Duty amounting to Rs 1,15,44,696/- from the appellant by invoking the proviso to Section 11A(1) of the Central Excise Act, 1944. The appellant was engaged in manufacturing goods under Chapter 72 of the Central Excise Tariff and also performed job work. The issue arose when the appellant retained and sold scrap generated from the raw materials provided by principal manufacturers without including its value in the assessable value, leading to the demand.

The Tribunal observed that the issue was previously settled in favor of the appellant in similar cases, such as Raaja Magnetics Ltd., Reclamation Welding Ltd., Osho Forge Ltd., and P R Rolling Mills. The Tribunal noted that the value of scrap retained by the job worker should not be included in the assessable value of the final products, as established by the precedent set in P R Rolling Mills Pvt. Ltd. v. CCE, which was upheld by the Supreme Court.

2. Imposition of Interest:
The Commissioner ordered the recovery of the confirmed duty amount along with interest under Section 11AB of the Central Excise Act, 1944. However, given the Tribunal's decision that the value of the scrap need not be included in the assessable value, the basis for the interest demand was nullified.

3. Imposition of Penalty under Section 11AC:
The Commissioner imposed a penalty equivalent to the duty amount under Section 11AC of the Central Excise Act, 1944, which could be reduced to 25% if paid within 30 days. The Tribunal, referencing the decision in P R Rolling Mills and other similar cases, found no basis for the penalty as the demand itself was invalid.

4. Imposition of Penalty under Rule 25:
A penalty of Rs 12,00,000/- was imposed on Noticee No. 1 under Rule 25 of the Central Excise Rules, 2002. The Tribunal, aligning with its stance on the main issue, found no justification for this penalty.

5. Confiscation of Goods:
The Commissioner ordered the confiscation of impugned goods under Rule 25 of the Central Excise Rules, 2002, with a redemption fine of Rs 30,00,000/-. The Tribunal, following the judicial precedent, ruled that there was no ground for confiscation as the primary demand was invalid.

6. Imposition of Penalty on Managing Director:
A penalty of Rs 12,00,000/- was imposed on Noticee No. 2, the Managing Director, under Rule 26 of the Central Excise Rules, 2002. The Tribunal, considering its findings on the main issue, found no basis for this penalty.

Conclusion:
The Tribunal allowed the appeals, setting aside the impugned order in its entirety. The Tribunal emphasized the consistent judicial precedent that the value of scrap retained by job workers is not to be included in the assessable value of the final products, thereby nullifying the demand, interest, penalties, and confiscation ordered by the Commissioner. The Tribunal's decision was pronounced in the open court.