2017 (2) TMI 982 - AT - Central Excise

Whether Dross, Ash, Shimming and such by product(s) or waste of non-ferrous metals are non-excisable goods? - Held that - 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 - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Appeal against Order-in-Original confirming demand of duty on Zinc Dross and Zinc Ash
- Interpretation of Circular No. 1027/15/2016-CX regarding non-excisable goods
- Applicability of Circulars and judgments on excisability of by-products or wastes
- Reversal of credit of input and input services under rule 6 of CENVAT Credit Rules

Analysis:
1. The appellant challenged the Order-in-Original confirming the duty demand on Zinc Dross and Zinc Ash, contending that Circular No. 1027/15/2016-CX clarified these items as non-excisable goods. The Show Cause Notice alleged these items were subject to Central Excise duty under Section 2(d) of the Central Excise Act, 1944. The Order-in-Original confirmed the demand and imposed penalties. The appellant appealed against this decision.

2. The appellant relied on Circulars and judgments to support their case. Circulars like 904/24/2009-CX, 941/02/2011-CX, and instructions from 2014 were discussed. The Supreme Court's ruling in a case involving bagasse and the Bombay High Court's decision on dross and skimming of non-ferrous metals were cited. These judgments and circulars influenced the interpretation of the excisability of by-products or wastes.

3. The Circular dated 25th April, 2016, issued by C.B.E.C., clarified that Dross, ash, or similar by-products of non-ferrous metals are non-excisable goods. The appellant argued that this clarification rendered the Order-in-Original unsustainable. The Departmental Representative contested this, claiming the Circular applied to the case. The Tribunal considered both arguments and concluded that the Circular supported the appellant's position. Consequently, the Tribunal set aside the Order-in-Original and allowed the appeal, providing consequential relief to the appellant.

4. Additionally, the Tribunal discussed the amendment to rule 6 of the CENVAT Credit Rules, 2004, emphasizing the treatment of non-excisable goods like exempted goods for the purpose of credit reversal. The Tribunal's decision was influenced by the Circular's clarification on the excisability of by-products or wastes of non-ferrous metals, leading to the setting aside of the Order-in-Original and granting relief to the appellant.