Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1349

Whether assessee to reverse Cenvat credit on inputs contained in waste emerged and destroyed in factory?

Case:-COMMISSIONER OF CENTRAL EXCISE, BANGALORE-I Versus GELTEC LTD.
 
Citation:-2012 (28) S.T.R. 422 (Kar.)

Brief Facts:-The assessee is engaged in the manufacture of Gelatin Capsules using Gelatin JR. B.P. (Spl for export) Gelatin Tablet grade, from which Gelatin Mass Waste is a bye-product. The assessee had destroyed Gelatin mass waste without reversing the credit availed on the input contained therein during the period August, 2001 to March 2006. The assessee during the relevant period has removed Gelatin mass waste without reversing the Cenvat credit availed on the said portion of the inputs. Therefore proceedings were initiated against the assessee for under the provisions of Rule 3 of Cenvat Credit Rules, 2004/2002 and Rule 57AB of the Central Excise Rules, 1944. The appellant contested the proceedings. The adjudicating authority did not accept the stand of the assessee and therefore it held that the assessee obtained Cenvat credit irregularly and therefore raised a demand and also directed payment of interest and penalty. Aggrieved by the same, the assessee referred an appeal to the Tribunal. The Tribunal held that the Cenvat credit shall be admissible in respect of the amount and held that the C.B.E.C. Circular dated 3-4-2000 abundantly makes it clear that the Cenvat credit shall be admissible in respect of the amount of inputs contained in any aforesaid waste, refuse of by-product and therefore they set aside the order of demand and held that there is no liability to pay excise duty on the part of the assessee. Aggrieved by the said order, the present appeal is filed by the Revenue.

Appellant Contentions:-The Revenue has preferred this appeal challenging the order passed by the Tribunal [2009 (243) E.L.T. 586 (Tri.-Bang.)] which has held that the Cenvat credit shall be admissible in respect of the amount of inputs contained in any waste, refuse or bye-product and therefore the assessee is under no obligation to reverse any Cenvat credit on inputs attributable to the waste that is generated in the factory premises during the course of its manufacture. The Revenue relied on Rule 3 of Cenvat Credit Rules, 2004 and contended that the assessee was under an obligation to reserve the Cenvat credit in respect of Gelatin waste as it falls under Rule 3(5). Reliance is placed on Rule 3(5) which reads as under:
 
"When inputs or capital goods on which Cenvat credit has been taken, are removed as such from the factory, or premises of the provider of output service, the manufacturer of the final products or provider of output service, as the case may be, shall pay in amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in Rule 9,"
 
Therefore it is clear that when inputs are removed "as such" from the factory or the premises of the factory then the Cenvat credit availed, should either be reversed or duty is paid by raising an independent invoice. It was contended that the waste itself is excisable goods and if it had been removed from the place, the place of removal is outside the factory, then the excise duty is payable.

Respondent Contentions:- Respondent submits that the material on record discloses that it was destroyed within the factory premises and it was not removed. Therefore the liability to pay excise duty on the said mass does not arise. Even if the said waste is excisable and duty is payable, that in no way enables the authorities to insist on reversal of Cenvat credit or payment of excise duty. The entire claim is on the assumption that the input which is brought into the factory is now sought to be removed in the same condition. Then only sub-rule (5) of Rule 3 applies. In the instant case, the input is not removed, 'as such' from the factory premises and therefore the said Rule has no application to the facts of this case and therefore there is no liability to pay excise duty on the said gelatin waste. Though gelatin waste is also excisable, when it is destroyed the Commissioner has the power to waive the payment of excise duty payable on such excisable item.

Reasoning of Judgment:-This appeal is admitted to consider the following substantial questions of law
·         Whether the impugned order is legally sustainable in holding that Cenvat credit availed is not required to be reversed on the inputs attributable to Gelatin Mass Waste generated during the course of manufacture of final product especially having availed remission of duty in terms of Rule 21 of the Central Excise Rules?
·         Whether the order of the Tribunal is legally sustainable in the absence of not assigning any reasons as to why the Gelatin Mass Waste cannot be considered as excisable product leviable to duty?
·         Whether the order of the CESTAT is legally sustainable in its interpretation of the provision of Section 57D of the Erstwhile Central Excise Rules and the Board Circular No.B/47/2000, dated 3-4-2000 without considering the Board Circular No. 800/33/2004-C.X., dated 1-10-2004?"
 
In the instant case, it is found that the input is not removed from the factory premises in the same condition in which it was bought within the factory. The input so used in the manufacturing process and in the course of manufacturing process, this gelatin waste is generated as a bye-product as in the case of finished product. Therefore, the said waste is destroyed. The said destroyed waste is not removed from the factory premises.
 
In that view of the matter, seen from any angle, the order passed by the Tribunal granting the benefit cannot be found fault with. Therefore, we do not see any merit in this appeal and accordingly it is dismissed and the substantial questions of law are answered in favour of the assessee and against the revenue.
 
Decision:-Appeal dismissed off.
 
Comment:-This case draws analogy that when Rule 3 (5) of the Cenvat Credit Rules, 2004, is specifically meant for reversal when inputs are removed as such then the said rule cannot be invoked for reversal of credit for inputs contained in the waste generated during the course of manufacture of final product because then it could not be said that inputs are removed “as such”.

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com