2017 (10) TMI 650 - AT - Central Excise

CENVAT credit - items like motors, generator, engine, remnant oil etc cleared by them after breaking of the ship - demand has been raised holding the activity of selling motors, generator, engine, remnant oil etc as trading - Rule 6 of CCR - Held that - what the appellants are purchasing is a ship for the purpose of breaking. The appellants are breaking the ship and as a result certain items are recovered. The scrap so generated is sold by appellants on payment of central excise duty. Other items generated are sold by them as it is. The items in respect of which demands for revenue under Rule 6 of Cenvat Credit Rules have been made are not purchased by appellants but are part of the ship when it is imported. In this regard, the activity of the appellants cannot be considered as trading activity - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Demand against respondents Arya Ship Breaking Corporation under Rule 6 for reversal of credit on items like motors, generator, engine, remnant oil
- Allegation of trading activity by the revenue
- Applicability of Rule 6 for cenvat credit reversal on input services
- Argument regarding the nature of activity undertaken by the respondents

Analysis:
The appellate tribunal addressed the issue of the demand raised against Arya Ship Breaking Corporation under Rule 6 for the reversal of credit on specific items like motors, generator, engine, and remnant oil. The Commissioner (Appeals) had dropped the demand, but the revenue appealed. The revenue contended that the sale of these items amounted to trading activity, justifying the demand for cenvat credit reversal under Rule 6. However, the respondents argued that since these items were recovered during the breaking up of the ship and not purchased, their activity did not constitute trading. The tribunal examined the nature of the appellants' activity and concluded that since the items in question were not purchased but were part of the imported ship, the activity of the appellants could not be classified as trading. Therefore, the tribunal held that the notice could not be sustained, and the appeal was allowed.

The tribunal delved into the applicability of Rule 6 for cenvat credit reversal on input services availed by the respondents, which included services like renting of immovable property, security services, and manpower recruitment services. The revenue had demanded the reversal of cenvat credit on the basis that the items sold were exempted or non-excisable goods, considering them as part of a trading activity. However, the tribunal found that the primary argument of the respondents was that since they did not purchase these items but recovered them during the ship-breaking process, their activity did not amount to trading. This distinction was crucial in determining whether Rule 6 could be applied to demand the reversal of cenvat credit on the input services utilized by the respondents for discharging duty on dutiable goods manufactured by them.

The judgment highlighted the disagreement between the revenue's characterization of the activity as trading and the respondents' assertion that their actions did not constitute trading due to the nature of the items recovered during the ship-breaking process. By emphasizing that the appellants were not engaged in purchasing the items in question but were recovering them as part of the ship-breaking operations, the tribunal rejected the revenue's argument and concluded that the activity of the appellants did not fall under the purview of trading. This distinction played a pivotal role in the tribunal's decision to allow the appeal and invalidate the demand for cenvat credit reversal under Rule 6.