Custom, Excise & Service Tax Tribunal
Cce, Jaipur-Ii vs M/S J.K. Cement Works on 11 May, 2009
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R. K. Puram, New Delhi COURT-I Date of hearing/decision:11.05.2009 Excise Appeal No. 4745 of 2004 [Arising out of order-in-appeal No. 333 (RM)CE/JPR-II/2004 dated 10.6.2004 passed by the Commissioner (Appeals-II) Customs & Central Excise, Jaipur] For approval and signature: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri M. Veeraiyan, Member (Technical) ,,,,,,,,,1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982. 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? CCE, Jaipur-II Appellant Vs. M/s J.K. Cement Works Respondent
Appearance:
Appeared for the Appellant Shri S.N. Srivastava, DR Appeared for the Respondent Ms. Asmita Nayak, Advocate Coram: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri M. Veeraiyan, Member (Technical) Oral Order No.____________________ Per M. Veeraiyan:
This is an appeal by the Department against the order of the Commissioner (Appeals) setting aside the order of the original authority by which he ordered recovery of Rs. 51,952/- and imposed equal penalty.
2. Heard both sides.
3. The respondent is a manufacturer of clinker and cement and they have procured various capital goods and inputs for the manufacture of the said final product. During the period December 1998 to December 1999, they have sold waste and scrap of capital goods/inputs valued at Rs.3,13,157/-. The original authority held that excise duty of Rs. 51952/- was payable under rule 57S(2)(c) of the Central Excise Rules on such waste and scrap. He also imposed equal amount of penalty under Section 11AC. Commissioner (Appeals) noted the disputed items as burnt oil drums, scrap of rubber belt and cable & PVC scrap, fire bricks scrap, steel scrap, weigh bridge scrap and old bearing scrap. He has discussed the excisability of each item independently and allowed the appeal of the party. In particular he held that clearance of burnt oil drums (empty drums) cannot be treated as clearance of capital goods as the goods received were only oil in those drums. He has also held that scrap of burnt oil bricks cannot be held to be a manufactured product. He also accepted the submission of the respondent that they have not availed credit on the capital goods out of which the said waste and scrap has arisen.
4. Learned DR reiterates the grounds of appeal and drew our attention to the admission of Shri K.M. Jain of the respondent company that the respondent was not maintaining separate accounts in respect of capital goods on which modvat credit was taken and those on which modvat credit was not taken.
5. Learned Advocate for the respondent submits that the statement of Shri K.M. Jain that they were not maintaining separate account for capital goods on which cenvat credit was taken has been misunderstood. There are entries in cenvat registers made from time to time and therefore there is account of capital goods on which credit was taken. She submits that the learned Commissioner (Appeals) held that there was no evidence of any modvat credit taken in respect of any of the capital goods out of which waste has arisen. The Department has not produced any reliable evidence to contradict the finding of the Commissioner (Appeals). Under these circumstances, we do not find any reason to interfere with the order of the Commissioner (Appeals).
6. The appeal by the Department is therefore rejected.
(Justice R.M.S. Khandeparkar) President (M. Veeraiyan) Member (Technical) /Pant/