2009 (3) TMI 350 - AT - Central Excise

Allegations that the respondents had wrongly availed exemption under C.B.E. & C. Board Circular No. 246/80/96-CX, dated 1-10-1996. It was stated that ammonia gas, which is stored in the storage tank is either manufactured within the factory or procured from outside. The ammonia stored in the storage tank attracts duty @ 16% ad valorem, but for notification No. 4/97, dated 1-3-97, which exempts ammonia if used in the manufacture of fertilizers. Since the quantity of ammonia, which has been released into the atmosphere, has lot been used in the manufacture of fertilizers, it attracts duty and the said release of the same into the atmosphere amounts to removal in terms of the provisions of rule 9(1) of Central Excise Rules, 1944. Held that the integrated plant storage is also a part of manufacturing process and that too, in the case of hazardous gas, like ammonia - The said circular is binding on the Revenue and has the force of law - The said circular is clarificatory of law and states in unambiguous terms that the gases falling under chapters 27, 28 and 29 produced in an factory and allowed to escape in atmosphere (whether by flare system or otherwise) are not liable to duty as these were not be considered as manufactured products and amounting to clearance. - Revenue s further contention that it is doubtful whether the ammonia in question was, in fact, vented out or not, as ammonia in vapour form cannot be flared by ignition, is an altogether new plea, which was not the subject matter of the show cause notice. The Revenue, therefore, cannot traverse beyond the show cause notice. no clandestine removal proved appeal dismissed

Summary

Issues:
Allegation of contravention of Central Excise Rules regarding ammonia storage and release into atmosphere, applicability of exemption under Circular No. 246/80/96-CX, validity of show cause notice demanding duty, penalty, and interest, interpretation of Board's Circular on exemption for gases falling under Chapter 27, 28, and 29, reliance on Supreme Court judgment regarding taxable event for Central Excise, sufficiency of evidence regarding venting out of gases, and the Revenue's failure to discharge the burden of proof.

Analysis:
The case involves an appeal filed by the Revenue against a manufacturing company engaged in producing goods falling under specific chapters of the Central Excise Tariff Act. The issue revolves around the alleged contravention of Central Excise Rules related to the storage and release of ammonia into the atmosphere. The respondents were accused of wrongly availing exemption under Circular No. 246/80/96-CX, leading to a show cause notice demanding duty, penalty, and interest. The dispute primarily centers on whether the released ammonia, not used in fertilizer manufacturing, should attract duty as 'removal' under the Central Excise Rules.

The Revenue contended that the exemption under the circular is limited to venting gases during production, excluding gases escaping from storage inside the factory. They relied on a Supreme Court judgment emphasizing that the taxable event for Central Excise is manufacturing, not removal. However, the Board's Circular clarified that gases from Chapters 27, 28, and 29, produced in a factory and released into the atmosphere, are not considered manufactured products and are exempt from duty. The Tribunal noted that the circular is binding, stating unambiguously that such gases are not liable to duty, emphasizing the importance of the gases being produced in the factory and allowed to escape into the atmosphere.

The Tribunal dismissed the Revenue's appeal, highlighting that the Supreme Court judgment cited by the Revenue did not address the specific issue of gases vented into the atmosphere as exempt under the Circular. Additionally, the Revenue's new contention regarding the nature of the released ammonia was not part of the original show cause notice, and no evidence was presented to prove clandestine removal. The Tribunal found the Revenue failed to meet the burden of proof, upholding the Commissioner (Appeals) decision in favor of the respondents. Ultimately, the appeal lacked merit and was deemed unsustainable, leading to its dismissal.

This detailed analysis of the judgment addresses the various legal issues raised, including the interpretation of relevant laws, circulars, and precedents, as well as the burden of proof and sufficiency of evidence in the case.