2013 (3) TMI 114 - HC - Central Excise

Court upholds Cenvat credit for natural losses in transit, dismissing Revenue's appeal.

Union of India Versus M/s. Hindustan Zinc Ltd. And another

Union of India Versus M/s. Hindustan Zinc Ltd. And another - 2013 (294) E.L.T. 378 (Raj.) , 2017 (48) S.T.R. 422 (Raj.) Issues Involved:1. Whether Cenvat Credit should be disallowed on the quantity of raw material not received in the factory and not utilized in the manufacture of finished goods due to wilful suppression of facts.Detailed Analysis:1. Background and Facts:The respondent-assessee engaged in manufacturing Zinc, Lead, and Copper Sulphate Solution showed transit losses of concentrate, an input in the manufacturing process. The department issued a show cause notice proposing recovery of Modvat credit, penalty, and interest, alleging that the assessee wrongly availed Modvat credit on raw material not received in the factory and wilfully suppressed facts regarding transit losses.2. Adjudicating Authority's Decision:The Adjudicating Authority disallowed the Modvat credit amounting to Rs.5,62,417/-, imposed a penalty of equal amount under Section 11AC of the Act, and ordered recovery of interest under Section 11AB. The Authority rejected the assessee's explanation of losses due to human error, moisture, and weighbridge differences, suggesting instead that the losses were due to pilferage or theft during transit.3. Appellate Commissioner's Decision:The Appellate Commissioner referred to the Tribunal's decision in Hindustan Zinc Ltd. and held that disallowing Modvat/Cenvat credit for a loss of about 0.05% was unjustified. The Commissioner found the losses reasonable and not attributable to any diversion of duty-paid inputs with intent to evade duty. Consequently, the disallowance of credit and the penalty were set aside.4. Tribunal's Decision:The Tribunal upheld the Appellate Commissioner's decision, noting that the transit loss was negligible (0.05%) and there was no evidence of intent to evade duty. The Tribunal dismissed the Revenue's appeal, finding no infirmity in the impugned order.5. Revenue's Appeal and Contentions:The Revenue contended that the Modvat credit should not be allowed for inputs not received in the factory. They argued that the facts differed from the Hindustan Zinc Ltd. case, as the inputs were not received in the factory and were not utilized in manufacturing. They also questioned the assessee's explanation of losses due to natural drying over a short transit distance.6. Respondent-Assessee's Contentions:The respondent-assessee supported the impugned order, referencing a decision of the High Court in Union of India Vs. Hindustan Zinc Ltd., arguing that natural causes should be given a reasonable and liberal interpretation and that a shortage of less than 0.05% did not indicate wilful suppression of facts.7. High Court's Analysis and Conclusion:The High Court found the Appellate Commissioner's and Tribunal's approach justified. It noted that the assessee had accounted for the shortage during stock taking and that the loss was due to natural causes like drying of moisture content and minor weighment errors. The Court emphasized practical and realistic considerations, ruling out any evidence of diversion of duty-paid inputs with intent to evade duty. The Court referenced Rule 57D of the Central Excise Rules, 1944, which allows credit even if inputs become waste during manufacturing.The Court concluded that there was no basis for the Adjudicating Authority's observations about pilferage or theft and that the disallowance of credit was unjustified. The formulated question was answered against the Revenue and in favor of the assessee, leading to the dismissal of the appeal.Conclusion:The appeal by the Revenue was dismissed, affirming that Cenvat credit should not be disallowed for minor losses of raw material due to natural causes during transit, and there was no evidence of wilful suppression of facts by the assessee.