Rule 16 of Central Excise Rules, 2002
Rule 25 - Penalty
Rule 16 allows the return of duty paid goods within the factory premises for being re-made, refined, re-conditioned or for any other reason. In this regard, the following provisions have been prescribed:
Sub Rule (1) states that manufacture can avail cenvat credit on returned goods and utilize the same according to Cenvat Credit Rules, 2004
Sub Rule (2) states that (i) where the process undertaken by the manufacturer on returned goods does not amount to manufacture, he shall reverse the cenvat credit (ii) if the process is amounting to manufacture, he shall be pay duty of excise as is required to be paid in normal course.
Sub Rule (3) states in case of any difficulty in following the provisions of sub-rule (1) or (2), he has to follow such conditions as specified by the commissioner.
Facts in the Present Case:
Manufacturer was clearing goods through various depots situated at different places in the country which sometimes were returned by the depots on account of some defect for being re-made, re-conditioned or repaired etc.
Case of the Manufacturer
Manufacturer did not avail cenvat credit and removed the goods after processing or repairing activity removed the goods. Manufacturer did not follow the procedure laid down under sub-rule (3).
Case of the Department
Manufacturer was required to obtain permission from the competent authority. They were supposed to inform the authorities about the receipt of goods. Department contended that non-compliance of sub-rule (3) could lead to clandestine removal of goods.
Observation and Decision of Tribunal
There must be evidence that the goods received for reconditioning, repairing etc. and the goods cleared again after completing the process are the same. Rule 16 lays down the procedure to check clandestine removal of goods on the pretext of reconditioning, repairs etc. Indeed, where the law prescribes the procedure for doing something, it must be done in that manner. Rule 25(1)(d) of the Central Excise Rules, 2002/2004 provides for imposition of penalty in cases of contravention of any provision of the rules or the notification issued thereunder, and therefore for contravention of Rule 16, the respondent could be saddled with penalty.
But the liability to penalty under clause (d) is qualified by the words "with intent to evade payment of duty". Thus unless there is evidence showing mens-rea on the part of the manufacturer to evade payment of duty, perhaps no penalty can be imposed in terms of Rule 25(1)(d).
In the present case, the allegations against the respondent are more in the realm of suspicion than proof.
Full text of Judgment - visit
COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH Versus GOETZE INDIA LTD. - 2009 -TMI - 33786 - CESTAT, NEW DELHI
In KAILASH TRANSFORMERS Versus COMMISSIONER OF C. EX., ALLAHABAD - 2008 -TMI - 30514 - CESTAT NEW DELHI, it was held that provisions of Rule 16 are not applicable.
Some Other Cases
KAYTEE SWITCHGEAR LTD. Versus COMMISSIONER OF C. EX., BANGALORE - 2009 TMI - 33154 - CESTAT BANGLORE
Returned goods - modification - Motor received back, then it is dismantled and certain modifications are made and later is cleared again - these modification cannot be tread as manufacture - "stator" and "rotor" were already in the Motor so modification in them would not amounts to manufacture - Once it is considered that the process does not amount to manufacture, then the appellants should pay an amount equal to the credit taken by them
SEW EURODRIVE INDIA PVT. LTD. Versus COMMISSIONER OF C. EX., VADODARA - 2008 TMI - 31329 - CESTAT AHMEDABAD
Received goods back for re-conditioning or remaking - officers entertained a view that the credit availed by the appellant is required to be reversed - due procedure under the law was followed by them in availing the credit, which was required to be reversed only at the time of removal of the goods - admittedly the goods were still lying in the factory premises, no mala fide intention can be attributed to the appellant for evading any duty so as to justifiably invoke the penal action
COMMR. OF C. EX. (APPEALS), NAGPUR Versus CHANVIM ENGINEERING (I) PVT. LTD. - 2008 TMI - 4128 - CESTAT, MUMBAI
Assessee took credit on goods on rejected goods got returned back - since the goods could not be reconditioned and were cleared as such as scrap without any manufacturing process the assessee was required to reverse the entire credit taken by them as per Rule 16(2) CCR - there is merits in the Revenue's contention that when goods have been cleared "as such" as scrap, assessee are required to reverse the credit taken by them on retuned goods - Bona fide mistake - penalty set aside
BALAJI GALVANISING INDUS. LTD. Versus C.C. & C. EX. (A), HYDERABAD-I - 2008 TMI - 30537 - CESTAT BANGLORE
Appellants are manufacturers of Wires from Wire Rods - input wire rod used in order to manufacture the wires, which were removed on payment of duty - denial of Modvat credit on inputs on the ground that the process does not amount to manufacture - In view of the taxation laws amendment act 2006, which amended Rule 16 of the Central Excise Rules, credit should be allowed of duty paid of wires (on receipt back of wires) - assessee's appeal allowed
R.K. SILK MILLS (INDIA) LIMITED Versus COMMISSIONER OF C. EX., JAIPUR-I - 2008 TMI - 30449 - CESTAT NEW DELHI
Return back of duty paid finished goods - duly recorded in register - alleged that appellant cleared duty paid returned after processing without payment of duty without following procedure u/r 16(1) & 16(2) - in spite that assessee was eligible to take credit on the duty paid return goods, appellant has neither availed credit nor paid duty on removal of re-processed goods, which is against the Law - Technical reasons for denying substantive benefit is not called for - matter remanded
TOYOTA KIRLOSKAR MOTOR PVT. LTD. Versus COMMR. OF C. EX., L.T.U., BANGALORE - 2008 TMI - 30320 - CESTAT BANGLORE
Appellants clear the vehicles before launching a new model to show room on payment of duty - credit is taken as per Rule 16(1) on these vehicles returned to factory in terms of Rule 16 of CCR - appellants' contention that when the goods are actually removed for sale, the duty is required to be paid only on T.V., is not acceptable - contention that Rule 16 cannot override Section 4, is also not acceptable - there is no manufacturing when the vehicles are returned so differential duty payable