2014 (7) TMI 652 - AT - Central Excise

Denial of rebate claim - Revenue was of the view that the goods exported were in fact, exempted under Notification No.5/2006-CE, dated 01.03.2006 by entry at S.No.22 - unauthorized payment of Excise Duty for encashing Cenvat credit of countervailing duty and SAD paid on raw material - Held that - Assessee s omission to make submission in the past was a matter of bona fide mistake on account of their expectation that the controversy would get sorted out through the intervention of CBEC. In ,the facts and circumstances of the case we do not want to penalize them at this stage for the default in filing reply and taking part in adjudication proceeding. Therefore, the impugned order is set aside and the matter is remanded back to the adjudicating authority for a de novo consideration of the matter, after giving a reasonable opportunity to the appellant to make their submissions and a hearing in person. The appellant is directed to cooperate with the adjudicating authority to speed up the adjudication process within a reasonable period, considering the amount of Revenue involved - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
1. Classification of goods under Central Excise Tariff
2. Exemption under Notification No.5/2006-CE
3. Unauthorized payment of Excise Duty and rebate claim

Classification of Goods under Central Excise Tariff:
The appellant, a manufacturer of Copper Anode, Copper Cathode, and Copper Wire Rods, imports copper concentrate, pays Customs duty, and takes Cenvat credit of Countervailing duty (CVD) and Special Additional Duty of Customs (SAD). They manufacture Copper Anodes in Tuticorin and process them into Copper Cathode at Silvassa, generating Anode Slime containing precious metal compounds. The dispute revolves around whether the Anode Slime is exempted under Notification No.5/2006-CE, dated 01.03.2006, and falls under heading No.71 12 99 90 of the Central Excise Tariff. The appellant argues that the goods are not exempted as they are compounds of precious metals, not waste or scrap, and hence not covered by the notification.

Exemption under Notification No.5/2006-CE:
The Revenue contends that the Anode Slime is exempted under the said notification as it is processed in Tuticorin to extract precious metals like Gold and Silver. They rely on the process description provided by the appellant and the decision of the Hon. Supreme Court in a related case. The Special Counsel argues that the process undertaken in Tuticorin is for extracting precious metals, making the product fall within the exemption. They also refer to the HSN Explanatory Notes under 7112 to interpret the term "Waste and Scrap of Precious Metals" used in the notification.

Unauthorized Payment of Excise Duty and Rebate Claim:
The Revenue issued a Show Cause Notice questioning the rebate paid on the Excise Duty for the Anode Slime, considering it an unauthorized payment due to exemption under Notification No.5/2006-CE. The appellant did not respond to the notice but informed about conflicting decisions and sought clarification from CBEC. The adjudicating authority passed an ex parte order, which was challenged by the appellant. The Tribunal found that the matter required further consideration, setting aside the order and remanding it back for fresh adjudication, giving the appellant a reasonable opportunity to present their case. The Tribunal waived the pre-deposit requirement, considering the Revenue-neutral nature of the exercise.

In conclusion, the Tribunal allowed the appeal, setting aside the impugned order and remanding the matter for fresh adjudication, emphasizing cooperation between the appellant and the adjudicating authority for a speedy resolution within a reasonable period.