2008 (8) TMI 329 - AT - Central Excise

Tribunal rules in favor of appellant on water classification and Modvat credit irregularities

The Tribunal upheld the appellant's classification of de-mineralized water under CH 2201.11, setting aside the duty demand and penalty imposed by the ... Classification of De-mineralized water – demand and penalty –the impugned item would be classifiable under 2201.11. - the demand of duty of Rs. 81,110/- on demineralised water is set aside. The mandatory penalty on account of this is also set aside – regarding irregular availment of Modvat credit with reference to the input loaned, TAS Ambattur and also non-Modvat closing stock cleared under dealers invoice – demand upheld Issues:1. Classification of de-mineralized water under CH 28.21 or CH 2201.10.2. Availment of Modvat credit on C-IX Solvent-Trimethyl Benzene.Analysis:Issue 1: Classification of de-mineralized waterThe appeal was filed against the Order-in-Appeal confirming demands raised by the Revenue against the appellants, who are pesticide manufacturers. The first issue was the classification of de-mineralized water under CH 28.21 or CH 2201.10. The Revenue claimed it falls under CH 28.21, while the appellant argued for CH 2201.10 based on the purification process involving iron exchange resins. The appellant cited Tribunal decisions supporting their classification. The Revenue referred to CH 28.51 and argued for their classification. The appellant also contested the longer period of limitation and penalty under Section 11AC, stating the department was aware of the clearance of de-mineralized water due to Modvat credit. The Tribunal upheld the appellant's classification under CH 2201.11, set aside the duty demand of Rs. 81,110, and the penalty.Issue 2: Availment of Modvat creditThe second issue concerned the irregular availment of Modvat credit on C-IX Solvent-Trimethyl Benzene. Various instances of irregular availment were listed, including short receipt of inputs, storage losses, and transit losses. The appellant did not contest demands related to specific instances, while contesting others citing Tribunal decisions supporting their stance. The Revenue argued that credit cannot be availed if inputs are not used in finished products. The Tribunal confirmed demands related to uncontested instances but set aside demands related to contested instances, citing Tribunal decisions and lack of abnormality in losses. The Tribunal also set aside penalties imposed under Section 11AC due to no justification for invoking the longer period. Only demands related to uncontested instances were confirmed.In conclusion, the Tribunal's judgment addressed both issues comprehensively, providing detailed analysis based on legal arguments, Tribunal decisions, and relevant provisions.