2009 (7) TMI 944 - AT - Central Excise

Stay/Dispensation of pre-deposit - Cenvat/Modvat credit - whether the process of pickling and oiling carried on HR Steel Sheets and Strips amounts to manufacture?

Summary

Issues:
1. Whether the process of pickling and oiling on HR Steel Sheets and Strips amounts to manufacture under Section 2(f) of the Central Excise Act, 1944.
2. If pickling and oiling are not considered as manufacture, whether the Cenvat credit availed for Excise duty payment should be disallowed.

Analysis:

Issue 1:
The case involves a dispute regarding whether the process of pickling and oiling conducted on HR Steel Sheets and Strips constitutes "manufacture" as per Section 2(f) of the Central Excise Act, 1944. The applicants argued that their activities amounted to manufacturing as they were engaged in de-coiling, cutting, and slitting of HR steel coils, along with pickling and oiling. Initially, the department insisted on duty payment for these processes based on a circular. However, a subsequent circular clarified that pickling and oiling do not amount to manufacture. The applicants contended that since the Tariff Act has separate headings for pickled and unpickled sheets, their activities qualified as manufacturing. The Commissioner (Appeals) disagreed, stating that the processes in question do not amount to manufacture as per the Board's circular.

Issue 2:
Regarding the availability of Cenvat credit if pickling and oiling are not considered manufacturing, the Tribunal examined the legal position. It was established that if the Excise Department collected duty on final products, they cannot disallow Cenvat credit on inputs, as this would be contradictory. The Tribunal cited several case laws to support this principle, emphasizing that if a process is not deemed manufacturing, duty paid on final products should be treated as a reversal of ineligible credit on inputs. The Tribunal noted that the applicants had used the credit for duty payments and had not misused it for personal gain. Additionally, the applicants' communications with the Department indicated their willingness to clarify whether pickling and oiling constituted manufacture, demonstrating no intent to wrongly avail Cenvat credit.

In conclusion, the Tribunal found that the applicants had a strong case for waiving the pre-deposit of duties, interest, and penalties imposed. Consequently, the recovery of these amounts was stayed pending the appeal's final disposal.