TaxTMI 
TaxTMI 
TaxTMI 
2016 (3) TMI 520
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.... as on limitation as to the confirmation of the demand of the central excise duty and the interest thereon while revenue is contesting the non-imposition of penalties by the adjudicating authority. 2. The relevant facts that arise for consideration after filtering out unnecessary details are, during the period April 1998 to June 2002, appellant assessee had availed CENVAT credit on various items after installation of their refinery, during the process of which, various scrap were generated and the appellant assessee cleared the same without payment of duty. Show-cause notice dated 23.04.003, alleging suppression of facts, demanded duty liability on the same which was noticed, as per the show-cause notice during the visit of the officers to....
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....propriate findings. He would submit that appellant assessee had not fabricated any structures but has purchased duty paid structurals that were used to set up refinery and scrap obtained out of duty paid bought out items on which MODVAT/CENVAT credit was not taken, the question of payment of duty does not arise and hence they were cleared without payment of duty. It is his submission that every clearance has been recorded by the appellant assessee as they are public sector undertakings. He would rely upon the following judgements. 1) Zuari Cement Ltd (ZCL) Vs CCE & C Tirupathi [2007(210)ELT 219 (Tri-Bang) 2) Apollo Tyres Ltd Vs CCE Vadodara [2005(185)ELT 183(Tri-Del)] 3) Hindalco Industries Ltd Vs CCE Allahabad [2002(144)ELT 339 (Tri-....
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....ed was very specific and could have been used only by the actual users. It is his submission that the clearance of scrap was never to the scrap dealers but to the actual users is undisputed fact. 5) In rejoinder learned counsel submits that on the question of limitation, the appellant being Public Sector Undertaking, the allegation of suppression of facts cannot arise as there will not any mensrea as held by the following decisions: 1) CCE Chennai I Vs Chennai Petroleum Corpn Ltd [2007)(211)ELT 193(SC) 2) CCE Allahabad Vs Bharat Yantra Nigam Ltd [2014 (36) STR 554 (Tri-Del)] 3) Indian Oil Corporation Ltd Vs CCE Ahemdabad [2013(291) ELT 449 (Tri_Ahmd)] 4) Hindustan Petroleum Corpn Ltd Vs CCE Calcutta-I [2001(136) ELT 943(Tri-Kol)] ....
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.... hold that the scrap generated would be liable to duty. This view is fortified by the judgement of the Tribunal in the case of Zuari Cement Ltd (supra), Apollo Tyres Ltd (supra) and Hindalco Industries Ltd (supra). There is no dispute as to the fact that the said waste and scrap which is generated, as indicated herein above is generated during the fabrication of the refinery in the factory premises of the appellant. In our considered view this kind of waste and scrap as indicated hereinabove cannot be dutiable in the hands of appellant as waste and scrap arising out of the manufacturing activity. 9) As regards point No. (2) i.e. clearance of waste and scrap of inputs and capital goods, rejected and damaged inputs and capital goods as such,....
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....without payment of duty. He has admitted and deposited partly some amount for the clearance of inputs as such. In view of the foregoing we are of the considered view that appellant has not made out any case in respect of the allegation at Point No. 3 and demand of the duty on the said point is liable to be upheld along with interest. 11) As regards the point of limitation, we do agree with the learned counsel for the appellant assessee that the appellant being a Public Sector Undertaking could not have had any malafide intention for non-payment of duty liability if any, on various scrap generated in their factory premises, more so when all the removals have been recorded in the books maintained by them. We find strong force in the contenti....