2018 (4) TMI 148 - AT - Central Excise

Tribunal overturns duty demand on rejected goods, emphasizing recycling in manufacturing.

Tulsyan NEC Ltda. Versus Commissioner of Central Excise, Bangalore

The Tribunal set aside the impugned order in favor of the appellant in an appeal concerning irregularly availed CENVAT credit on rejected goods not ... CENVAT credit - demand on the ground that the rejected goods were not reprocessed as required under Rule 16 of Central Excise Rules, 2002 - Held that: - the demand has been confirmed on the basis of assumptions and presumptions and by taking the average of the last 5 years - no investigation was conducted by the Department and there is no allegation that the appellant has removed the rejected goods as such. The appellant being a manufacturer is paying duty on clearances effected by the recycling rejected goods and if the appellants are asked to pay the duty on the rejected goods once again, then it amounts to double duty. Appeal allowed - decided in favor of appellant. Issues:Appeal against order partly allowing appeal - Irregularly availed CENVAT credit - Rejected goods not reprocessed - Demand raised - Duty on waste fabrics - Penalties imposed - Denial of CENVAT credit - Sustainability of impugned order - Recycling rejected goods - Double duty demand - Lack of investigation - Allegations of removal of rejected goods - Applicability of Board instructions and precedent.Analysis:The appeal was filed against an order partly allowing the appeal related to the irregularly availed CENVAT credit on rejected goods not reprocessed as required. The appellant, engaged in manufacturing excisable goods, faced a demand raised due to the rejected goods not being reprocessed, leading to the denial of CENVAT credit and imposition of penalties. The Commissioner(Appeals) confirmed the denial of credit and penalties but dropped certain charges. The appellant argued that the rejected goods were recycled in the manufacturing process, paying duty on clearances, and thus, the demand amounted to double duty. The lack of verification and investigation by the authorities was highlighted, along with failure to consider relevant instructions and precedents.The appellant contended that the impugned order lacked sustainability as it did not appreciate the facts and law correctly. It was argued that the rejected goods were recycled, different from the cleared goods, and the demand for duty was unjustified. The appellant emphasized paying duty on clearances involving recycled goods, making the additional duty demand unreasonable. The absence of allegations regarding the removal of rejected goods supported the appellant's claim for CENVAT credit. Reference was made to a precedent to strengthen the argument regarding the entitlement to credit on recycled goods.After considering submissions and evidence, it was found that the demand was based on assumptions and lacked proper investigation. The failure to follow Board instructions and consider relevant precedents further weakened the basis of the demand. Highlighting the principle of not demanding duty twice on the same goods without evidence of non-payment earlier, the Tribunal's precedent was cited to support the decision. Consequently, the impugned order was deemed unsustainable and set aside, allowing the appellant's appeal.In conclusion, the judgment addressed the issues of irregularly availed CENVAT credit, lack of reprocessing rejected goods, sustainability of the order, recycling practices, double duty demands, absence of proper investigation, and the applicability of legal instructions and precedents. The decision favored the appellant by setting aside the unsustainable order based on the lack of concrete evidence and failure to adhere to legal principles and precedents.