2021 (7) TMI 197 - AT - Central Excise

CENVAT Credit - stock transfer of capital goods - Old machine cleared to sister unit after their use - amount on clearance of non-excisable waste and scrap - cenvat credit on ineligible input services - air travel agent service - Mandap keeper Service - Penalty. Old machine cleared to sister unit after their use - HELD THAT - The issue is no more res-integra as is apparent from the decision of CESTAT Bench, Allahabad in the case of M/S RSPL LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, GHAZIABAD 2018 (4) TMI 60 - CESTAT ALLAHABAD . The decision is announced in the appellant s own case and the Department s appeal has been dismissed by holding that the transfer of machine between two sister units is not a trading activity. It being merely a stock transfer of inputs interse sister units which cannot be categorized as sale - From the invoice, it is also observed that the requirement of Rule 3 (5A) of CCR 2004 has fully been met by the appellant though the Department has alleged the said mention in the invoice as a mere book-entry but apparently and admittedly there is no evidence on record to falsify the said compliance for it being a mere book entry. Amount on clearance of non-excisable waste and scrap - HELD THAT - Appellant has cleared leftovers of the packing material for the applicability of Rule 6 of CCR, 2004, as is alleged by the Department, word manufacture acquires the utmost importance and Rule 6 is applicable if and only if the appellant is manufacturing exempted as well as excisable goods. Even explanation to Rule 6 of CCR 2004 does not deem non-manufactured goods as exempted goods as defined under Rule 2 (d) of CCR - the issue stands already settled that the left over packing material cannot be considered as non-excisable goods or the exempted goods to fall under the scope of Rule 6 of CCR, 2004. Wrong availment of cenvat credit on ineligible input services - HELD THAT - The adjudicating authority has taken a wrong view. Not only this, it has failed to observe the judicial protocol by ignoring the already settled issue by this Tribunal. Penalty - HELD THAT - It has also been a settled law that there has to be some positive act on part of the assessee to be called as the act of deliberate malafide intent. There is no such evidence on record. The burden was on the Department to prove the same. The absence of such evidence extends benefits to the appellant and the result remains is that there is no apparent mensrea on the part of the appellant to note to pay the amount of impugned demand. Above all there is evidence on record to show that appellant has made compliance of Rule 3 (5) which could not have been rebutted. There is nothing on record to prove that the said record is a mere book entry - the impugned demand has already been held to be not sustainable. Question of imposition of penalty does not at all arise. Cenvat Credit - air travel agent service - Mandap keeper Service - HELD THAT - The ground taken by the adjudicating authority below to deny the said admissibility is that the CA Certificate dated 19th November, 2014 is an old Certificate and as such has no relevance - once the issue stands settled by the Tribunal for the same appellant in the same facts and circumstances, there remains no burden of the appellant to produce CA Certificate either for the pre or the post period of the demand which stands already decided by this Tribunal. Appeal allowed - decided in favor of appellant.

Summary

Issues:
A. Payment of duty on stock transfer of capital goods i.e. Old machine cleared to sister unit after their use.
B. Payment of amount on clearance of non-excisable waste and scrap such as wooden pallets, rotten gunny bags, broken packing material etc. from the factory.
C. Wrong availment of cenvat credit on ineligible input services.

Analysis:

A. Payment of duty on stock transfer of capital goods:
The appellant transferred an old machine to its sister unit and was demanded Central Excise Duty. The Tribunal noted that the transfer was not a sale but a stock transfer between sister units, exempt from duty. The CESTAT decision in a similar case supported the appellant's argument, emphasizing compliance with relevant rules. The Tribunal overturned the demand, citing lack of manufactured goods clearance and transaction value.

B. Payment of amount on clearance of non-excisable waste:
The Department alleged duty payment on clearing non-excisable waste, which the appellant contested citing rules and precedents. The Tribunal agreed with the appellant, citing rulings that left-over packing materials do not fall under exempted goods. The adjudicating authority's finding was deemed unsustainable as the waste did not qualify as manufactured exempted goods.

C. Wrong availment of cenvat credit on ineligible input services:
The appellant was accused of wrongly availing Cenvat Credit on ineligible services. The Tribunal referenced a previous favorable decision and found the authority's view incorrect. It highlighted the lack of criminal intent or positive act to justify penalties. Compliance with Rule 3(5) was noted, and the demand was deemed unsustainable. The issue of Cenvat Credit admissibility was also resolved in the appellant's favor, based on previous rulings.

The Tribunal set aside the order, allowing the appeal based on the lack of sustainable demands and penalties. The judgment emphasized adherence to legal protocols, settled precedents, and lack of evidence for penal provisions. The appellant's compliance with rules and previous favorable decisions were crucial in the Tribunal's decision to overturn the order.