2018 (5) TMI 1286 - AT - Central Excise

Tribunal overturns duty, interest, penalty on industrial gas manufacturer for alleged duty non-payment on damaged goods

M/s Indian Air Gases Pvt. Ltd. Versus Commissioner of Central Excise, Allahabad

M/s Indian Air Gases Pvt. Ltd. Versus Commissioner of Central Excise, Allahabad - TMI Issues: Whether duty is required to be paid by way of reversal under Rule 3(5) or 3(5)(A) of CCR, 2004 on removal of scrap generated from used and old capital goods.Detailed Analysis:1. Background and Allegations: The appellant, a manufacturer of dutiable industrial gases, was alleged to have sold damaged capital goods and scrap without paying duty during a specific period. The Revenue claimed that the appellant must have availed Cenvat credit on the capital goods and should pay duty on the transaction value of the cleared waste and scrap under Rule 3(5A) of CCR, 2004.2. Show Cause Notice and Representation: The show cause notice required the appellant to pay duty along with interest and penalty, invoking the extended period of limitation. The appellant contested the notice, requesting relevant details of the alleged credit availed on capital goods. They submitted an affidavit asserting that no credit was taken on the scrapped plant and machinery.3. Adjudication and Appeal: The Joint Commissioner confirmed the duty, interest, and penalty, stating that the appellant failed to prove the exempt status of the scrap. The appeal before the Commissioner (Appeals) was rejected, leading the appellant to approach the Tribunal.4. Tribunal's Decision: The appellant argued that the show cause notice was presumptive and not maintainable, emphasizing that the scrapped plant did not have Cenvat credit. They cited a precedent where the burden of proof was on the Revenue to provide evidence. The Tribunal found that the appellant maintained proper records and the affidavit was not disproved. Consequently, the show cause notice was deemed presumptive and not maintainable, leading to the appeal being allowed, and the impugned order set aside.5. Conclusion: The Tribunal's decision highlighted that the appellant was entitled to depreciation on the capital goods, and as the plant was over 10 years old, the depreciated value became nil, necessitating no reversal of Cenvat credit. The appellant was granted consequential benefits, if any, in accordance with the law.This detailed analysis of the judgment from the Appellate Tribunal CESTAT ALLAHABAD showcases the legal intricacies involved in determining the duty liability on scrapped capital goods and the importance of maintaining proper records and proving allegations in such cases.