1998 (1) TMI 318 - AT - Central Excise

Summary

Issues:
1. Availment of Modvat credit on input Zinc used in galvanization process.
2. Classification of zinc ash and zinc dross under Central Excise Tariff Act.
3. Exemption under Notification No. 19/88 and subsequent amendment by Notification No. 27/91.
4. Contravention of Rule 57C of Central Excise Rules.
5. Interpretation of Rule 57D(1) protecting Modvat credit.
6. Tribunal decisions on similar cases.
7. Applicability of Rule 57D in protecting Modvat credit.

Analysis:

1. The appellants were manufacturing Transmission Line Tower parts and availing Modvat credit on input Zinc used in the galvanization process. During galvanization, zinc ash and zinc dross, classified under Heading 26.20 of the Central Excise Tariff Act, were generated. The appellants claimed exemption for zinc dross under Notification No. 19/88.

2. The Jurisdictional Assistant Commissioner initiated proceedings alleging contravention of Rule 57C of the Central Excise Rules, stating that the appellants had not reversed the credit for 5% of zinc obtained as zinc ash and zinc dross, for which nil rate of duty was claimed under Notification 19/88.

3. The Commissioner of Central Excise (Appeals) noted that Notification No. 19/88 was amended by Notification No. 27/91, specifying that exemption for zinc dross and zinc ash would not apply when duty credit on zinc was availed under Rule 57A. The Commissioner held the amendment retrospective and found the appellants in violation of Rule 57C for clearing the final product without duty payment.

4. The appellants argued that as per Rule 57D(1), Modvat credit is protected when inputs are part of waste or by-product. They cited Tribunal decisions supporting this interpretation, emphasizing that Modvat credit cannot be denied for intermediate goods used in final products exempted from duty.

5. The Department contended that Modvat credit on zinc duty should be reversed for clearance of zinc dross and zinc ash, as per the Show Cause Notice and the amending Notification No. 27/91.

6. The Tribunal analyzed a similar case involving waste clearance under exemption and upheld that Modvat credit need not be reversed for waste arising in the manufacturing process of the final product. The Tribunal applied Rule 57D to protect Modvat credit, emphasizing that the amendment was not retrospective and did not affect the unconditional exemption for zinc dross and zinc ash.

7. Ultimately, the Tribunal allowed the appeal, stating that the lower authorities erred in seeking to recover duty credit on zinc contained in zinc ash and zinc dross, applying the precedent set by previous Tribunal decisions and Rule 57D protection for Modvat credit.