2016 (9) TMI 1124 - AT - Central Excise

Demand alongwith interest and penalty - Zinc Dross and Zinc Ash arising during the manufacture of G.P. Coils & G.P. Sheets - Held that - it is very clear from the Circular dated 25th April, 2016 issued by C.B.E.C. that Revenue has taken a view that Dross, ash or any such by-product or waste of non-ferrous metals are non-excisable goods. We, therefore, hold that the impugned Order-in-Original is liable to be set aside. - Decided in favour of appellant with consequential relief

Summary

Issues:
1. Early hearing of appeal due to Circular No. 1027/15/2016-CX.
2. Central Excise duty on Zinc Dross and Zinc Ash.
3. Confirmation of demand and penalty imposition.
4. Applicability of Circulars and judgments on excisability of by-products.
5. Rescission of previous circulars and instructions.
6. Amendment to Rule 6 of Cenvat Credit Rules, 2004.
7. Treatment of non-excisable goods for reversal of credit.
8. Sustainability of Order-in-Original.

Analysis:

1. The appellant filed a Miscellaneous Application for early hearing of Appeal No. E/1034/2011-EX[DB] due to the demand of duty on Zinc Dross and Zinc Ash confirmed by the Original Authority. The Circular No. 1027/15/2016-CX clarified that such by-products of non-ferrous metals are non-excisable goods, prompting the request for early hearing. Both parties consented to dispose of the Miscellaneous Application and Appeal together.

2. A Show Cause Notice was issued to the appellant, alleging that Zinc Dross and Zinc Ash were chargeable to Central Excise duty under the Central Excise Act, 1944. The demand for duty amounting to ?94,04,538/- was made for the period from May 2008 to February 2009. The Order-in-Original confirmed the demand and imposed a penalty, which the appellant contested.

3. The appellant challenged the Order-in-Original dated 28-01-2011, leading to the current appeal.

4. The Circulars and judgments regarding the excisability of by-products were discussed, including the Supreme Court's ruling that bagasse is not a manufactured product. The Circulars 904/24/2009-CX, 941/02/2011-CX, and instruction F. No. 17/02/2009-CX(Pt.) were rescinded based on these judgments.

5. The Circular dated 25th April 2016 clarified that Dross, ash, or similar by-products of non-ferrous metals are non-excisable goods, impacting the sustainability of the Order-in-Original.

6. Rule 6 of the Cenvat Credit Rules, 2004 was amended, emphasizing the treatment of non-excisable goods for the reversal of credit of input and input services.

7. The Circular's clarification rendered the impugned Order-in-Original unsustainable, leading to its setting aside and allowing the appeal with consequential relief to the appellant. The Miscellaneous Application was also disposed of accordingly.