2014 (1) TMI 1058 - AT - Central Excise

Tribunal Upheld Duty Amount, Set Aside Penalty; Appellant Directed to Deposit Sum

M/s. KEC International Ltd. Versus CCE & ST, Bhopal

The Tribunal upheld the duty amounting to Rs.69,35,257 confirmed for the period May 2008 to December 2009 for the appellant, while setting aside the ... Activity manufacture or not – Zinc dross and ash emerges during manufacture of galvanized sheets – Effect of amendment of Definition of excisable goods u/s 2(d) of Central excise act - Waiver of Pre-deposit – Held that:- Following KEC INTERNATIONAL LTD. Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR-I [2012 (12) TMI 426 - CESTAT, NEW DELHI] - Zinc dross and ash manufactured and cleared was chargeable to duty – the duty would be recoverable only for the normal limitation period along with interest – Appellant directed to deposit Rupees Sixty lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted. Issues:1. Dispensing with the condition of pre-deposit of duty2. Interpretation of the definition of excisable goods3. Applicability of Supreme Court decision4. Validity of Board's Circular5. Financial difficulty of the appellantIssue 1: Dispensing with the condition of pre-deposit of dutyThe appellant sought to dispense with the pre-deposit of duty amounting to Rs.69,35,257 confirmed for the period May 2008 to December 2009. The Tribunal noted a previous order in the same appellant's case where duty was confirmed for zinc dross and ash manufactured during the production of galvanized sheets. While duty was found chargeable, the penalty was set aside, and duty beyond the normal limitation period was also set aside. The appellant's advocate acknowledged the demand within the limitation period, except for a small amount.Issue 2: Interpretation of the definition of excisable goodsThe Tribunal rejected the appellant's argument that the issue was covered by a Supreme Court decision before the amendment in the definition of excisable goods. The appellant's reliance on a Board's Circular quashed by the Allahabad High Court was also dismissed. The revenue's case was based on the change in definition, not solely on the circular. The Tribunal upheld the previous decision against the appellant on the issue of manufacture.Issue 3: Applicability of Supreme Court decisionThe Tribunal found that the Supreme Court decision cited by the appellant was not applicable due to the period involved being before the amendment in the definition of excisable goods. The decision was considered in the previous Tribunal's order but not accepted, leading to no merit in the appellant's contention.Issue 4: Validity of Board's CircularThe Tribunal disregarded the appellant's argument regarding the quashed Board's Circular, emphasizing the revenue's case being based on the amended definition of excisable goods. The decision highlighted that the change in definition was the primary basis for the revenue's claim, not the circular.Issue 5: Financial difficulty of the appellantThe appellant acknowledged no financial difficulty and was directed to deposit Rs.60,00,000 within 12 weeks. Compliance was to be reported by a specified date. The Tribunal's decision reflected a balance between the appellant's request for dispensing with pre-deposit and the revenue's claim based on the amended definition of excisable goods.