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2022 (3) TMI 935 - AT - Central ExciseIncorrect availment and utilization of CENVAT credit - ineligible import services - short payment of duty on scrap sales - HELD THAT - In the present case, the above mentioned scrap apparently reveals that no raw material has been used for those scrap to be generated nor the said scrap is the outcome of any process or any kind of deliberation or manipulation being done by appellant to their raw material. Those are not even the by-products emerging unintentionally in the process of manufacturing as is the case of bagasse in manufacture of sugar from sugarcane as raw material. The scrap in question is purely the leftovers of the packing material or the worn out parts of the consumables used by the appellant in their premises for various activities as different from manufacture. This particular observation is sufficient to hold that even Rule 6 of CCR, 2004 will not be applicable to the scrap in question even the Explanation to Rule 6 of CCR, 2004 does not deem non-manufactured goods as exempted goods as have been defined under Rule 2(d) of CCR, 2004. Even the Hon ble Apex Court in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS WEST COAST INDUSTRIAL GASES LTD. 2003 (4) TMI 110 - SUPREME COURT has held that no duty can be demanded on the material which is used for packing of the imports on which credit has been taken when such packing material is cleared from the factory of the manufacturer. It is based upon this decision that Department had issued a Circular No.721/37 dated 6th June, 2003. As already held from the description of the scrap on which duty has been demanded, it is clear that the scrap in question is non-excisable being non-manufactured product of the appellant. The demand of duty for the said reason itself is highly improper and illegal - Appeal allowed - decided in favor of appellant.
Issues:
1. Incorrect availment and utilization of CENVAT credit. 2. Incorrect availment of CENVAT credit of service tax on ineligible import services. 3. Short payment of duty on scrap sales. Issue 1: Incorrect availment and utilization of CENVAT credit The appellants were engaged in manufacturing motor vehicle parts, and discrepancies were observed during an audit, leading to a show cause notice proposing recovery of service tax and Central Excise duty. The appeal against the proposal was partly allowed, dropping the demand for certain CENVAT credit amounts. However, a difference in the amount of scrap sale was confirmed, as the appellant failed to produce invoices to substantiate that the scrap sold without duty payment was non-excisable. The appellant argued that the scrap not generated in the manufacturing process was non-excisable, relying on legal precedents and CBIC circulars. The Department emphasized the lack of invoices and requested remand for fresh adjudication. The Tribunal observed that most of the scrap items were not the result of deliberate manufacturing activity, leading to a discussion on the definition of "manufacture" under the Central Excise Act. It was concluded that the scrap in question was non-excisable, and the demand for duty was deemed improper and illegal. The findings of the Commissioner were held unsustainable, and the appeal was allowed. Issue 2: Incorrect availment of CENVAT credit of service tax on ineligible import services The appeal addressed the incorrect availment of CENVAT credit for service tax paid by the corporate office during the impugned period. The Tribunal found that the availment of CENVAT credit for service tax on import services was available to the appellants, leading to the dropping of the demand for certain amounts. The legal arguments and reliance on precedents were similar to those presented for the first issue. The Tribunal's decision on the non-excisability of certain scrap items also impacted the overall outcome of the appeal. Issue 3: Short payment of duty on scrap sales The key contention in this issue revolved around the duty payment on specific scrap items sold by the appellants. The Department highlighted the lack of invoices, while the appellant argued that certain scrap items were non-excisable due to not being generated in the manufacturing process. The Tribunal's analysis of the nature of the scrap items and the legal principles surrounding excisability formed the basis for setting aside the demand for duty. The decision emphasized the distinction between manufactured goods subject to excise duty and non-excisable waste or by-products. Legal precedents and circulars were cited to support the conclusion that the duty demand on the scrap in question was unjustified. The appeal was allowed, overturning the findings of the Commissioner and rejecting the Department's request for remand. In conclusion, the Tribunal's detailed analysis of the issues related to CENVAT credit availment and duty payment on scrap sales resulted in the appeal being allowed in favor of the appellants. The judgment provided clarity on the excisability of certain scrap items and emphasized the legal requirements for imposing excise duty on manufactured goods.
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