2015 (4) TMI 619 - AT - Central Excise

Waiver of pre deposit - zinc dross and ash - lower authorities have held that after the amendment to the provisions of section 2(d) of the Central Excise Act, the goods in question are marketable and as such, have to be held as having been manufactured by the appellant - Held that - Tribunal in the case of KEC International Ltd. 2012 (12) TMI 426 - CESTAT, NEW DELHI , while upholding the dutiability of the zinc dross and ash has set aside the penalty on the ground that such clearances were effected with the knowledge of the Revenue. By applying the ratio of the above decision, we set aside the penalty, while confirming the duty and interest. - Decided partly in favour of assessee.

Summary

Issues:
Confirmation of duty on zinc dross and ash, imposition of penalty for non-suppression of clearances in returns.

Confirmation of Duty on Zinc Dross and Ash:
The judgment confirms the duty against the appellant concerning zinc dross and ash for the period from 1.7.2010 to 31.12.2010. The lower authorities determined that post-amendment to the Central Excise Act, the goods were marketable, leading to the conclusion that the appellant manufactured them. The legal issue of marketability was not disputed by the appellant, and the demand with interest was not challenged. Therefore, the duty was upheld based on the above analysis.

Imposition of Penalty for Non-Suppression of Clearances in Returns:
The appellant contended that since they had disclosed all clearances of zinc dross and ash in their filed returns, there was no suppression on their part warranting the imposition of a penalty. The learned advocate did not challenge the duty confirmation but argued against the penalty imposition. The Departmental Representative left the decision to the Bench. Referring to a precedent involving KEC International Ltd., where the duty was upheld but the penalty was set aside due to clearances being made with the knowledge of the Revenue, the Tribunal followed a similar approach. Consequently, the penalty was set aside while confirming the duty and interest, aligning with the principle established in the cited case.

In conclusion, the judgment dispensed with the pre-deposit of penalty as the duty was already deposited by the appellant. The duty on zinc dross and ash was confirmed based on marketability post-amendment to the Central Excise Act. While the appellant did not dispute the duty, they argued against the penalty imposition, citing no suppression due to disclosure in returns. Following a precedent, the Tribunal set aside the penalty, maintaining the duty and interest. The stay petition and appeal were disposed of accordingly.