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TMI Blog2022 (5) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... ,825/- was confirmed with interest and penalty and also a separate penalty of Rs.2,00,00,000/- was imposed on Shri Dipak Rathod. 1.1 The brief facts of the case are that appellant was engaged in manufacturing of C.I. Castings Moulds and are availing the Cenvat Credit of duty paid on the input used in or on relation to manufacture of the final products and are also manufacturing of C.I. Moulds on Job Work basis. The Factory premises of Appellant searched by the department and noticed that the Appellant is manufacturing C.I. Moulds out of the material purchased as also old and used Moulds supplied by some other manufacturers under intimation to the Central Excise Department and by following the procedure prescribed under Notification No. 214 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they have supplied scrap/ Used CI Moulds to the Appellant for conversion into fresh Moulds and admittedly all the suppliers have filed declaration for availment of exemption under Notification No. 214/86. Department accepted the fact that suppliers have filed relevant declaration as required under Notification No. 214/86. Department has also issued show cause notices to suppliers of material. He submitted the copies of two show cause notices issued to supplier by the department. He also submits that in case of suppliers the Hon'ble tribunal has held that old and used moulds /scrap can be removed under Rule 4(5)(a) of Cenvat Credit Rules, 2004. 2.1 He also submits that Learned Commissioner of Central Excise has erred in confirming the deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of final products and the premises stand approved as part of factory premises vide order dated 03.10.2012 issued by the Jurisdictional Assistant Commissioner. 2.4 He also placed reliance on the following decisions in support of his arguments. * Kakda Steel Pvt. Ltd. final order No. 50034/2019 dated 11.01.19 * Bajaj Auto Ltd. 2018-10-GSTL 141 (Tri. Mumbai) * New Steel Trading Pvt. Ltd. final order No. A/86152-86153/2018 * Bharat Industries 2008-227-ELT-281 (Tri. Mum) * Plastika Industries 2016-335-ELT-574 (Tri. Mum) * La Prenca Industries Pvt. Ltd. 2017-346-ELT-412 * Shakti Wire Products 2009-241-ELT-223 * OPG Metals Pvt. Ltd. 2016-343-ELT-223 * Sagun Foundry Pvt. Ltd. 2002-150-ELT-624 * Sree Rayalaseema Dutch Kassen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edly lying outside the factory premises whether liable for confiscation. We are of the view that as per the facts of the case which is not under dispute that the appellant have applied for extension of ground plan for inclusion of the premises where the goods were lying well in advance and subsequently, the ground plan was approved. Therefore, it cannot be said that the goods were lying outside the factory. Moreover, the appellant received the old and used moulds for the purpose of job work in their factory under Notification No.214/86-CE therefore, no cenvat credit was taken on such goods accordingly, such goods cannot be treated as excisable goods hence, no question arise for confiscation of the goods. Accordingly, neither confiscation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsactions as per the challans and for the job work purpose invoices were raised. No invoice was raised in respect of sale of the goods. The department also could not find anything to support their contention that the fresh moulds were made such as the total value of the goods for the fresh mould received by the appellant from the recipient of the C.I. Mould. All the documents and records clearly show that the appellant have received the old and used moulds and converted into fresh mould and returned back to the supplier of old and used mould for which they merely charged the job work charges. 4.4 As regard the department's objection that old and used mould/scrap cannot be cleared under Rule 4(5)(a) it is no longer under dispute as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e denied. Since the demand itself is not sustainable, penalty on the main appellant as well as co-appellant is also not sustainable. 4.6 The appellants have strongly raised the defence on limitation on the ground that the job work transactions were clearly declared in the monthly ER-1 return therefore, there is no suppression of fact. We, prima facie find force in the submission of the appellant however, since we have decided the entire case of its facts and merit we are not going into the issue of limitation. 05. As per our above discussion and findings, we are of the view that the entire demand made against the appellant and the confiscation of goods is not legal and correct hence the same is not sustainable. 06. Accordingly, the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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