2017 (11) TMI 1434 - AT - Central Excise

Manufacture - Department was of the view that such scraps having been generated during the fabrication of capital goods, which amounts to manufacture is liable to payment of duty - whether the respondent is liable to pay excise duty on the waste and scrap removed? - Held that - Undisputedly, such waste and scrap has arisen out of repair, modernization of the plant or machinery - there is no allegation in the show cause notice that the respondent has availed credit, particularly on the capital goods - SCN is defective - appeal dismissed - decided against Revenue.

Summary

Issues: Whether the respondent is liable to pay excise duty on waste and scrap removed.

Analysis:
1. The department filed an appeal against the order of the Commissioner (Appeals) setting aside duty, interest, and penalties imposed on the respondents, who are manufacturers of paper board. The issue arose when it was discovered that the respondents cleared scrap without paying duty, generated during the fabrication of capital goods. A show cause notice was issued, demanding duty, interest, and penalties amounting to &8377; 6,48,130. The original authority confirmed the demand, but the Commissioner (Appeals) set it aside.

2. The appellant argued that waste and scrap generated during the fabrication of capital goods should be cleared only after paying duty as per Rule 8 of Central Excise Rules, 2002. They contended that since the scrap was generated during the modernization of capital goods, it is liable for duty payment. The appellant disagreed with the Commissioner (Appeals) and stated that the demand raised was legal and proper, emphasizing the obligation to pay duty on cleared waste and scrap.

3. The respondent's counsel countered by highlighting that the show cause notice did not mention the availing of MODVAT credit on capital goods. They argued that Rule 3(5A) of CENVAT Credit Rules, 2004 applies only if credit has been availed on capital goods. Referring to a judgment, they contended that the issue had been addressed previously and supported the decision of the Commissioner (Appeals).

4. After hearing both sides, the Tribunal deliberated on whether the respondent was liable to pay excise duty on the removed waste and scrap. It was noted that the waste and scrap arose from the repair and modernization of plant or machinery. The show cause notice was found to be deficient in alleging the availing of credit on capital goods. Relying on the precedent set by the Grasim Industries Ltd. case, the Tribunal concluded that the impugned order required no interference, leading to the dismissal of the department's appeal.