Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/Case Law /2016-17/3433

Whether Generation of waste and scrap during repair and maintenance of P&M amount to manufacture?

Case- ULTRA TECH CEMENT LTD. Versus COMMISSIONER OF C. EX. & S.T., RAIPUR
 
Citation-2017 (345) E.L.T. 130 (Tri. - Del.)
 
 
Brief Facts--The brief facts of the case are that the appellant is engaged in manufacture of cement and clinker falling under Chapter Heading No. 2523 of Central Excise Tariff Act, 1985. During the period October, 2006 to June, 2007, the appellant had sold waste and scrap of various miscellaneous items arisen during the course of repair and maintenance of various plant and machinery within the factory including used capital goods, without payment of Central Excise duty. Non-payment of duty on those waste/scrap goods were disputed by the Central Excise Department and in the adjudication proceedings, Central Excise Duty demand of Rs. 6,77,418/- along with interest was confirmed and penalty of Rs. 1 lakh was imposed on the appellant. The appellant filed appeal against the adjudication order, which was upheld by the ld. Commissioner (Appeals) vide the impugned order dated 20-2-2009. Hence, the present appeal before this Tribunal
 
Appellant’s Contention-Shri B.L. Narasimhan, ld. Advocate appearing for the appellant submits that generation of waste and scrap out of metal goods are not conforming to the Section Note 8(a) of Section XV of Central Excise Tariff Act, 1985. To support his such stand, he relied on the judgment of Hon’ble Supreme Court in the case of Grasim Industries Ltd. v. Union of India [2011 (273)E.L.T.10 (S.C.)].He further submits that as a matter of practice, the appellant never takes any Cenvat credit on the iron and steel goods classified under Chapter 72/73 of CETA, 1985. Thus, according to him, since no credit has been taken, there is no question of payment of amount envisaged under Rule 3(5A) of the Cenvat Credit Rules, 2004. He further submits that the fact regarding non-availment of Cenvat credit on the disputed goods were known to the Department and that the authorities below were also aware of such facts through the submissions of the appellant. Thus, the submission of the appellant is that on both counts, the appellant has a good case on merits and the demand confirmed is liable to set aside.
 
Respondent’s Contention-. Shri G.R. Singh, ld. Departmental Representative, on the other hand, reiterates the findings recorded in the impugned order and further submits that Rule 3(5A) ibid mandates payment of equal amount of duty leviable on transaction value, irrespective of the fact, whether the credit has been taken on the initially procured capital goods or not. Thus, since the capital goods were removed from the factory without payment of duty, confirmation of duty demand is justified and is in conformity with the statutory provisions.
 
 
Reasoning Of Judgement-The bench has  heard both sides and perused the records. It founded that so far as the definition of term “waste and scrap of metals” contained in Section Note 8(a) of Section XV of CETA, 1985, the Hon’ble Supreme Court in appellant’s own case has held that incorporation of Section Note 8(a) in Section XV is for the purpose of determining the applicable rate of duty and not concerning with the term “manufacture” defined in Section 2(f) of the Central Excise Act, 1944. The relevant paragraph in the said judgment is extracted hereinbelow :-
“Bench was of the opinion that Section Note has very limited purpose of extending coverage to the particular items to the relevant tariff entry in the Schedule for determining the applicable rate of duty and it cannot be readily construed to have any deeming effect in relation to the process of manufacture as contemplated by Section 2(f) of the Act, unless expressly mentioned in the said Section Note.”
Further, this Tribunal in the case of the appellant itself vide its Final Order No. 53712/2015, dated 2-12-2015 in identical set of facts, has set aside the demand confirmed in the adjudication/appellate order.
In view of the settled principles of law, the bench was 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, bench 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. Therefore, bench did not find any merits in the impugned order and allowed the appeal in favour of the appellant.
 
Decision-Appeal allowed
Comment-The kernel of the case is that the generation of waste and scrap of various miscellaneous items arisen during the course of repair and maintenance does not amount to manufacture, so excise duty will not be levied. Further the definition of waste and scrap only gives coverage of entry “waste & scrap” and it does not lead to conclusion that waste and scrap arising by the mechanical working of metal amounts to process of manufacture in terms of section 2(f). This is in support of Grasim Industries Ltd. v. Union of India [2011 (273) E.L.T. 10 (S.C.)].Hence the demand is unsustainable. Hence appeal allowed.
 
Prepared By-ARUNDHATI BAJPAI
 
 
 
 
 
 
 
 
 
 
 

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