2022 (9) TMI 1339 - AT - Service Tax

Reversal of CENVAT Credit - Capital Goods cleared as waste and scrap - amount required to be paid in terms of rule 3(5A) of the Credit Rules for capital goods cleared as scrap - Appellant is output service provider - period of dispute in the present case is from 1.3.2011 to 16.3.2012 and 27.09.2013 to 31.03.2015 - HELD THAT - In terms of payment of the amount under rule 3(5A) of the Credit Rules during the said relevant period, only a 'manufacturer' was required to pay the amount in case of clearance of capital goods as scrap and not an output service provider. The appellant, being an output service provider, was not required to pay any amount in terms of rule 3(5A) of the Credit Rules during the period involved in the present appeal for clearance of capital goods as scrap. Whether the capital goods involved in the present case which were cleared by the appellant without payment of any amount under rule 3(5A) of the Credit Rules can be considered as used capital goods or waste and scrap? - HELD THAT - In the present case the appellant has also undertaken an internal procedure for determination of the nature of the capital goods to be cleared by it. The goods are thereafter sent to OEM and Chartered Engineer for further verification as to whether the goods qualify as scrap. Only when the goods have been certified that they were sold as to scrap management companies having registration under Hazardous Waste Management Rules - It is, therefore, clear that the capital goods cleared by the appellant would qualify as scrap and no amount was required to be paid while clearance of the same by the appellant. Extended period of limitation - HELD THAT - It is not necessary to examine the contention advanced by learned counsel for the appellant that the extended period of limitation could not have been invoked in the facts and circumstances of the present case. The impugned order dated 29.07.2016 passed by the Additional Director, therefore, cannot be sustained and is set aside - Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Applicability of Rule 3(5A) of the CENVAT Credit Rules, 2004, to the clearance of capital goods as scrap by an output service provider.
2. Determination of whether the capital goods cleared by the appellant were 'used capital goods' or 'scrap'.
3. Invocation of the extended period of limitation for the demand.

Issue-wise Detailed Analysis:

1. Applicability of Rule 3(5A) of the CENVAT Credit Rules, 2004, to the clearance of capital goods as scrap by an output service provider:

The crux of the dispute revolves around whether the appellant, an output service provider, was required to pay an amount under Rule 3(5A) of the CENVAT Credit Rules, 2004, when clearing capital goods as scrap. The Tribunal examined the applicability of Rule 3(5A) during different periods and concluded that only a 'manufacturer' was required to pay the amount in case of clearance of capital goods as scrap during the periods in question (01.03.2011 to 16.03.2012 and 27.09.2013 to 31.03.2015). The appellant, being an output service provider, was not required to pay any amount under Rule 3(5A) during these periods. This position was also acknowledged by the Additional Director in the impugned order.

2. Determination of whether the capital goods cleared by the appellant were 'used capital goods' or 'scrap':

The Tribunal needed to ascertain whether the capital goods cleared by the appellant were indeed 'scrap' or 'used capital goods'. The appellant argued that the goods were scrap, while the Department contended they were used capital goods. The Tribunal referred to a previous decision in Bharti Infratel Ltd., which clarified that goods sold to scrap management companies, certified for recycling under the Hazardous Waste Management Rules, could be considered scrap. The appellant had followed a detailed procedure involving internal checks, OEM inspections, and certifications by Chartered Engineers to determine whether the goods were scrap. The Tribunal found that the goods were correctly classified as scrap and thus, the appellant was not required to pay any amount under Rule 3(5A).

3. Invocation of the extended period of limitation for the demand:

Given the Tribunal's findings on the first two issues, it became unnecessary to examine the appellant's contention regarding the extended period of limitation. The Tribunal's decision rendered the question of limitation moot since the demand itself was found to be unsustainable.

Conclusion:

The Tribunal set aside the impugned order dated 29.07.2016, confirming the demand of Rs. 83,00,29,670/- with interest and penalty, and allowed the appeal. The amount earlier paid by the appellant and appropriated in the impugned order was directed to be refunded with applicable interest.