Leviability of Customs duty on ‘quantity of Burning loss’ consumed during the course of manufacturing of final products

[Bimal jain]

Dear Professional Colleague,

Leviability of Customs duty on ‘quantity of Burning loss’ consumed during the course of manufacturing of final products

We are sharing with you an important judgment of Hon’ble CESTAT, Mumbai, in the case of Maharashtra Seamless Ltd. Vs. Commissioner of Central Excise, Raigad [2015 (1) TMI 489 - CESTAT MUMBAI ] on following issue:

Issue:

Whether the Customs duty is leviable on the quantity of burning loss consumed during the course of manufacturing of final products?

Facts and background:

Maharashtra Seamless Ltd. (“the Appellant”) imported round Billets without payment of Customs duty for the manufacture of seamless tubes and pipes in the private bonded warehouse under the Customs license issued under Section 65 of the Customs Act, 1962 (“the Customs Act”) and in terms of Notification No. 20/99–Customs dated February 28, 1999. During course of manufacture, there was generation of steel waste and scrap, which was recoverable and also 2-3% burning loss.

Recoverable waste and scrap was sold on payment of Customs duty in terms of Section 65(2) of the Customs Act while no Customs duty was paid in respect of quantity of burning loss. Hence, the Department issued Show Cause Notice and sought to recover Customs duty on the quantum of burning loss contending that in terms of Section 65(2)(b) of the Customs Act, the quantity of waste and scrap also included the short quantity said to be burning loss.

The Adjudicating Authority confirmed the duty demand along with interest and imposed penalty. Being aggrieved, the Appellant preferred an appeal before the Commissioner (Appeals), who upheld the orders of Adjudicating Authority. Aggrieved by the orders of the Commissioner (Appeals), the Appellant preferred an appeal before the Hon’ble CESTAT, Mumbai.

Held:

The Hon’ble CESTAT, Mumbai relying upon the decision in case of Paras Fab International Vs. Commissioner of C. Ex. Kandla [2010 (6) TMI 184 - CESTAT, NEW DELHI] held as under

• Section 65(2)(b) of Customs Act applies only to such waste and scrap which resulted from manufacturing operations and are cleared from the warehouse for home consumption. In the present case, the burning loss does not exist physically, therefore it is neither capable of being cleared from the warehouse nor factually cleared from the warehouse. Hence does not fall under Section 65(2)(b) of Customs Act;
• Explicit provision for levy of Customs duty on the waste and scrap, which is physically available and cleared from the warehouse, is provided but no such explicit provision exists in case of the burning loss. Meaning thereby, quantity of imported material consumed in the final products includes burning loss also as it has same nature as the raw material which gets consumed in the manufacturing of final products.

Therefore, the Hon’ble Tribunal allowed the appeal in favour of the Appellant and held that the no Customs duty is leviable on quantity of burning loss as it is neither cleared out of the custom bonded warehouse for home consumption nor otherwise disposed of, but factually it got consumed in the manufacturing.

Hope the information will assist you in your Professional endeavors. In case of any query/ information, please do not hesitate to write back to us.

Thanks and Best Regards,

Bimal Jain

FCA, FCS, LLB, B.Com (Hons)

Delhi:

Flat No. 34B, Ground Floor, Pocket - 1,

Mayur Vihar, Phase - I,

Delhi – 110091, India

Desktel: +91-11-22757595/ 42427056

Mobile: +91 9810604563

Chandigarh:

H.No. 908, Sector 12-A,

Panchkula, Haryana – 134115

Kolkata:

Ist Floor, 10 R G Kar Road

Shyambazar, Kolkata – 700 004

Email: [email protected]

Web: www.a2ztaxcorp.com

Disclaimer: The contents of this document are solely for informational purpose. It does not constitute professional advice or recommendation of firm. Neither the authors nor firm and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any information in this document nor for any actions taken in reliance thereon.

Readers are advised to consult the professional for understanding applicability of this newsletter in the respective scenarios. While due care has been taken in preparing this document, the existence of mistakes and omissions herein is not ruled out. No part of this document should be distributed or copied (except for personal, non-commercial use) without our written permission.