2023 (12) TMI 522 - AT - Central Excise

Reversal of CENVAT Credit - clay (by-product) is exempted from excise duty and arises during the course of excavation and production of the dutiable final product lignite - manufacture of clay as final product taking place or not - liability to pay an amount in terms of rule 6(3)(b) of the CENVAT Rules @ of 6% of the value of clay. HELD THAT - The issue involved in this appeal stands decided in favour of the appellant by the Tribunal in GUJARAT MINERAL DEVELOPMENT CORPORATION LTD VERSUS C.C.E. S.T. -VADODARA-II 2021 (10) TMI 307 - CESTAT AHMEDABAD . The issue was whether Gujarat Mineral Development Corporation was required to pay an amount under rule 6 of the CENVAT Rules in respect of exempted product namely Silica Sand and Ball Clay when the input service was used for mining of lignite and it was held that it is clear that any input/input services contained in any by-product/waste/refuse Cenvat Credit cannot be varied or denied. With this logic demand under Rule 6 in respect of by-product is not applicable. In the present case also the appellant has only been authorised to excavate lignite which is a raw material used by the appellant in the generation of power. The appellant had engaged KSK to mine lignite and the consideration that was to be paid by the appellant to KSK was on the basis of per metric ton of lignite supplied at delivery point. For mining of lignite it was imperative for KSK to remove the overburden including clay. Clay which arises as a technical necessity in the course of excavation of lignite is therefore not a manufactured commodity. It is a by-product arising in the course of manufacture and is waste so far as the appellant is concerned. In view of the aforesaid decision of the Tribunal in Gujarat Mineral Development Corporation it cannot be said that the appellant had manufactured two products namely lignite and clay out of which one is exempted or chargeable to nil rate of duty and the other is dutiable as a result of which the appellant had to maintain separate records for utilisation of input service in the manufacture of these products thereby attracting rule 6(3) of the CENVAT Rules - the order dated 26.02.2019 passed by the Commissioner therefore cannot be sustained and is set aside - appeal allowed.

Summary

Issues involved:
The issue involved in this appeal is whether the appellant is liable to pay any amount in terms of rule 6(3)(b) of the CENVAT Rules @ of 6% of the value of 'clay' which is exempted from excise duty and arises during the course of excavation and production of the dutiable final product 'lignite'.

Comprehensive Details:

1. Background and Allegations:
The appellant challenged the order passed by the Commissioner confirming the demand for recovery under rule 14 of the CENVAT Rules. The show cause notice alleged that the appellant failed to reverse the CENVAT credit on the quantity of exempted goods, namely clay, cleared during a specific period. The Commissioner confirmed the demand stating that excavation of clay is equally important as the excavation of lignite, requiring separate records as per rule 6 of the CENVAT Rules.

2. Appellant's Claims:
The appellant argued that it was authorized to mine only lignite for captive consumption in electricity generation, necessitating the removal of overburden, topsoil, and clay during lignite excavation. The appellant did not own or sell the clay, which belonged to the State Government. The waste clay was stacked by the appellant with permission from the State Government and later lifted by another entity.

3. Legal Arguments:
The appellant contended that it should not be required to pay under rule 6 of the CENVAT Rules as it was authorized to excavate only lignite, not clay. The appellant maintained that clay was an unavoidable by-product in the process of lignite excavation and not a separate final product.

4. Judicial Precedent:
The Tribunal's decision in a similar case involving Gujarat Mineral Development Corporation supported the appellant's argument. The Tribunal held that by-products like Silica Sand and Ball Clay, arising during the mining of Lignite, did not necessitate payment under rule 6 of the CENVAT Rules.

5. Decision and Ruling:
Considering the nature of the mining activity and the appellant's authorization to excavate only lignite, the Tribunal ruled in favor of the appellant. It was established that clay was a by-product arising in the course of manufacture and waste for the appellant. Therefore, the Commissioner's order was set aside, and the appeal was allowed.
*(Order Pronounced on 11.12.2023)*