2016 (9) TMI 1234 - AT - Central Excise

Cenvat Credit - sale of waste and scrap of metal goods arisen during the course of repair and maintenance of various plant and machinery - non-payment of central excise duty - Held that - in view of the settled principles of law, we are not in agreement with the findings of the lower authority that prescription of Chapter Note in the tariff will create the duty liability on the waste and scrap of metal goods arisen during the course of repair and maintenance of plant and machinery. With regard to applicability of Rule 3(5A) of Cenvat Credit Rules, 2004 to the facts of the present case, we find that on initial procurement of capital goods, the appellant had not taken any Cenvat credit and such facts were brought to the notice of both the lower authorities by the appellant. Therefore, the burden lies with the Department to prove availment of Cenvat credit on the disputed goods has not been satisfactorily discharged, and thus, confirmation of duty demand on this ground also is not tenable. - Decided in favour of appellant

Summary

Issues:
- Liability for non-payment of central excise duty on waste and scrap goods sold by the appellant.
- Interpretation of Section Note 8(a) of Section XV of Central Excise Tariff Act, 1985.
- Applicability of Rule 3(5A) of Cenvat Credit Rules, 2004.

Liability for non-payment of central excise duty:
The appellant, engaged in cement and clinker manufacturing, sold waste and scrap without paying central excise duty. The Central Excise Department demanded duty of &8377; 6,77,418/- with interest and imposed a penalty of &8377; 1 lakh. The appellant appealed against the order, which was upheld by the ld. Commissioner (Appeals). The appellant argued that the waste and scrap did not fall under Section Note 8(a) of Section XV of the Central Excise Tariff Act, 1985. The appellant also claimed they never took Cenvat credit on iron and steel goods, so no duty payment was required under Rule 3(5A) of the Cenvat Credit Rules, 2004.

Interpretation of Section Note 8(a):
The Tribunal referred to the Hon'ble Supreme Court's judgment in a similar case involving the appellant, stating that Section Note 8(a) determines the duty rate and does not relate to the manufacturing process. The Tribunal highlighted that the Chapter Note in the tariff does not create duty liability on waste and scrap of metal goods generated during repair and maintenance activities. Moreover, a previous Tribunal order in a similar case favored the appellant, setting aside the duty demand.

Applicability of Rule 3(5A) of Cenvat Credit Rules:
Regarding Rule 3(5A) of the Cenvat Credit Rules, 2004, the Tribunal noted that the appellant did not avail Cenvat credit on the disputed goods, which was acknowledged by the authorities. The Tribunal emphasized that the burden was on the Department to prove Cenvat credit availment, which was not satisfactorily discharged. Consequently, the confirmation of duty demand based on this ground was deemed untenable, leading to the appeal being allowed in favor of the appellant.