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 STUDY/2010-11/06
27 May 2010

 

PJ/CASE STUDY/2010-11/06

              

 

                    Case Study

 

Prepared By:

CA Pradeep Jain and

Megha Jain

Introduction:-  The Rule 6 or erstwhile Rule 57CC has created many problems on reversal of Cenvat credit. The reversal is to be done on the cost of exempted product. This rule does not see whether a very small quantity of input or input services have been used in manufacture of exempted final product. It has to be reversed at a fixed rate of value of exempted goods. Normally, this creates a lot of problem.

In the instant case, the scrap was generated during manufacture of final product. The scrap was exempted from levy of duty. The department has demanded reversal @ 10% of value of exempted product. But the appellant contended that the scrap is not final product but it is by product which is generated automatically. This case study relates to this topic only.

 

 

   M/s Shivam Metals versus Assistant Commissioner, CE Division Jodhpur

Relevant Provisions:-

Rule 6 (3)(b) of Cenvat Credit Rules 2004

if the exempted goods are other than those described in condition (a), the manufacturer shall pay an amount equal to  ten per cent. of the total price, excluding sales tax and other taxes, if any, paid on such goods, of the exempted final product charged by the manufacturer for the sale of such goods at the time of their clearance from the factory;

Question of consideration:-

Whether the exempted stainless steel scrap & waste should be cleared after reversing an amount equal to 10% of the value as per Rule 6 (3) (b) of the Cenvat Credit Rules, 2004 or not?

Brief Facts of the Case: -

·               Appellant are engaged in the manufacture of cold rolled stainless steel patta / patti(dutiable) and stainless steel scrap & waste (exempted) falling under tariff heading Nos. 7219 90 and 7204 21 respectively. The appellants were availing cenvat credit on the inputs. Stainless Steel Scrap & Waste are exempted by Notification No. 3/2005-CE, Dated: 24.02.2005. Since appellants were not maintaining separate account for inputs used in dutiable and exempted goods, therefore as per Rule 6(3)(b) of Cenvat Credit Rules, 2004, the appellants should have cleared the said scrap after reversing an amount equal to 10% of the value of such exempted goods at the time of their clearances from their factory. The appellants had not reversed the said amount, therefore, demand of duty for the period 1.8.2006 to 31.12.2006 was confirmed by the Adjudicating Authority under the provisions of Rule 14 of the CCR, 2004 alongwith interest under Section 11AB of the CEA, 1944 and also imposed penalty under rule 15 of the CCR, 2004.  


Appellant’s Contention:-

There was no need to reverse the Cenvat Credit as SS Scrap is not their final product but it is a by product. The appellant has relied upon the following cases.

(a)   Tata chemicals Limited [2007 (214) ELT 95 (Tri.)]

(b)   Rallies India Ltd. [2007 (208) ELT 25 (Tri. LB)]

(c)   Indian Aluminium Co. Ltd. [2006 (203) ELT 3 (SC)]

 

Reasoning of the Order: -

Commissioner finds that the same issue has been decided by the commissioner (A-II), Jaipur in the case of Jai Steels, Shiva Steels and Suncity Metals by holding that appellants were required to pay amounts in terms of Rule 6 (3) (b) of CCR, 2004. Being aggrieved appellants filed appeal before tribunal who set aside the orders of Comm (A) by holding that the scrap has arisen only as a by product and therefore
Rule 6(3) (b) of the CCR, 2004 is not applicable. The orders of the Comm (A) are set aside and the appeals are allowed with consequential relief as per law.

 

Decision of the Adjudication authority:-

Based on the above judgment, Commissioner held that scrap has arisen only as a by product and therefore Rule 6 (3) (b) of CCR, 2004 is not applicable. Accordingly, Commissioner set aside the findings of the adjudicating authority. Since demand is not sustainable therefore question of interest does not arise and penalty is also not imposable in view of the Hon’ble Supreme Court’s Decision in the case of H.M.M. Ltd. 1995 (76) ELT 497. The impugned order is set aside and appeal is allowed.

Comments: -

This is very good decision. It is crystal clear that the scrap is not final product and it generates automatically. No one undertook the manufacturing process for the generation of scrap. This is fundamental rule. Even the Apex Court has held in many cases that scrap is not a marketable commodity. Even if it fetch some value, it does not mean it is marketable. Even the rubbish things can be sold in the market. But the amendment in definition of manufacture under Section 2(f) has been done by the Board to nullify these decisions.

But the decisions have given support to the contention that scrap is not final product and it generates automatically in manufacture of final product. No manufacturer undertakes manufacturing activity for generation of scrap.

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