2020 (4) TMI 40 - AT - Central Excise

CENVAT credit - waste and scrap - plastic drums - sale of plastic drums as waste and scrap - Commissioner (Appeals) placed reliance on Board s Circular No. 1027/15/2016-CX. dated 25.4.2016 which treats Bagasse as an exempted good for the purpose of reversal of credit of input in terms of rule 6 of the CENVAT Credit Rules 2004. - HELD THAT - The Board s Circular No. 1027/15/2016-CX. dated 25.4.2016, strongly relied upon by the Commissioner (Appeals) stands declared ultra virus in the case of M/S BALRAMPUR CHINI MILLS LTD. THROUGH ITS GENERAL MANAGER VERSUS UNION OF INDIA, MINISTRY OF FINANCE DEPARTMENT OF REVENUE 2019 (5) TMI 972 - ALLAHABAD HIGH COURT , where it was held that In absence of Bagasse being a manufactured final product, the obligation of reversal of CENVAT Credit under Rule (1) of the CENVAT Credit Rules, 2004 is not attracted - As such, nothing survives in the Revenue s decision. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Availing Cenvat credit on duty paid inputs
- Reversal of value for cleared waste and scrap
- Interpretation of Tribunal's decision and Board's Circular
- Validity of Board's Circular
- Decision based on Allahabad High Court's judgment

Availing Cenvat credit on duty paid inputs:
The appellant, engaged in manufacturing plastic pipes and sprinkler systems, availed Cenvat credit on duty paid inputs like HDPE/PP bags and chemicals received in plastic drums. The issue arose during an audit for the period 2013-2017 when it was found that empty bags and plastic drums were being sold as waste and scrap, leading to a demand for duty payment.

Reversal of value for cleared waste and scrap:
A demand for duty payment was raised against the appellant for clearing waste and scrap, requiring them to reverse 6% of the value under Rule 6(3) of the Cenvat Credit Rules, 2004. The authorities confirmed this demand through a show cause notice, leading to the present appeal.

Interpretation of Tribunal's decision and Board's Circular:
The appellant relied on a Tribunal decision in a similar case, but the Commissioner (Appeals) distinguished it, citing the absence of the Board's Circular in the Tribunal's consideration. This led to a refusal to follow the Tribunal's decision, creating a dispute over the interpretation and application of legal precedents.

Validity of Board's Circular:
The Commissioner (Appeals) heavily relied on the Board's Circular dated 25.4.2016, which was declared ultra vires by the Allahabad High Court in a separate case. This declaration undermined the Commissioner's reliance on the Circular, impacting the decision-making process and the validity of the demand for duty payment.

Decision based on Allahabad High Court's judgment:
Given the Allahabad High Court's decision on the validity of the Board's Circular, the Tribunal found no merit in the impugned orders against the appellant. Relying on the High Court's judgment and the Tribunal's precedent, the Tribunal set aside the decision, allowing the appeal and granting consequential relief to the appellant.