2009 (2) TMI 154 - AT - Central Excise

Excise duty on waste and scrap arising out of export goods - appellants started operating under notification No. 43/2001-C.E. (NT.) dated 26-6-2001 for procurement of duty free raw material. - dutiability of process waste and scrap under Modvat scheme has to be considered not only with reference to tariff heading but also with reference to exemption notification - clause iv (1) (a) of sub-rule (3) means that the waste material shall be removed on payment of duty, if any, payable thereon and since no duty was payable on dross and skimmings removed by the petitioner, there cannot be any breach of Rules. Since the assessment process starts after the manufacturing process is over and waste and scrap are generated, the assessment process has to be carried out as per the law Held that appellants are entitled to the exemption claimed by them

Summary

Issues:
1. Interpretation of notification No. 43/2001-C.E. (N.T.) regarding payment of duty on waste and scrap generated during the manufacture of export goods.
2. Applicability of unconditional exemptions under notification No.10/2003-C.E. (N.T.) and notification No. 89-95-C.E. (N.T.) on waste and scrap.
3. Examination of the correct assessment process for determining duty on waste and scrap.
4. Analysis of legal precedents concerning the dutiability of process waste and scrap under relevant schemes and notifications.

Analysis:
1. The issue revolves around the interpretation of notification No. 43/2001-C.E. (N.T.) concerning the payment of duty on waste and scrap generated during the manufacturing process of export goods. The notification specifies that waste arising from processing must be removed on payment of appropriate duty. The contention arises as to whether this duty is mandatory despite exemptions claimed by the appellants under other notifications.

2. The appellants argue that waste and scrap are fully exempted under notification No.10/2003-C.E. (N.T.) and notification No. 89-95-C.E. (N.T.), allowing them to clear such materials without duty payment. They assert that the word "appropriate" in the notification does not necessitate duty payment, citing unconditional exemptions available under the mentioned notifications. The revenue, however, argues that the term "appropriate duty" implies duty payment based on a Supreme Court judgment, and hence, the duty is mandatory.

3. The tribunal analyzed the assessment process, highlighting that waste and scrap assessment should occur after their generation. The notification does not expressly mandate duty payment on waste and scrap arising from duty-free raw materials processing. The tribunal emphasized that the assessment process must align with the law, and if no duty payment is required based on exemptions, the appellants are entitled to claim such exemptions.

4. Legal precedents such as Media Industries Ltd., Anand Polyrotex, and Collector of C.Ex., Vadodara v. Dhiren Chemical Industries were cited to support the appellants' contentions. These cases emphasized considering dutiability of waste and scrap with reference to both tariff headings and exemption notifications. The tribunal concluded that the assessment process should adhere to the law, and when correctly applied, the appellants are eligible for the claimed exemptions. Consequently, the impugned order was set aside, providing relief to the appellants.