TMI Blog2021 (7) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... but apparently and admittedly there is no evidence on record to falsify the said compliance for it being a mere book entry. Amount on clearance of non-excisable waste and scrap - HELD THAT:- Appellant has cleared leftovers of the packing material for the applicability of Rule 6 of CCR, 2004, as is alleged by the Department, word manufacture acquires the utmost importance and Rule 6 is applicable if and only if the appellant is manufacturing exempted as well as excisable goods. Even explanation to Rule 6 of CCR 2004 does not deem non-manufactured goods as exempted goods as defined under Rule 2 (d) of CCR - the issue stands already settled that the left over packing material cannot be considered as non-excisable goods or the exempted goods to fall under the scope of Rule 6 of CCR, 2004. Wrong availment of cenvat credit on ineligible input services - HELD THAT:- The adjudicating authority has taken a wrong view. Not only this, it has failed to observe the judicial protocol by ignoring the already settled issue by this Tribunal. Penalty - HELD THAT:- It has also been a settled law that there has to be some positive act on part of the assessee to be called as the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit of ₹ 7827.77 on ineligible input services. Accordingly, a Show Cause Notice bearing No.410 dated 19.04.2018 was served upon the appellant proposing the recovery of aforesaid amounts alongwith the appropriate interest and the proportionate penalties. The said proposal was initially confirmed by Order-in-Original No.20/AC/Demand/Cex/Pith-II/2018-19 dated 04.12.2018. The appeal thereof has been rejected vide the order under challenge. Being still aggrieved, the appellant is before this Tribunal. 2. I have heard Shri R.K. Ambwani, learned Consultant for the appellant and Shri P. Juneja, learned Departmental Representative for the Revenue. 3. It is submitted on behalf of the appellant that M/s. RSPL Ltd. has 33 number of sister units. All have one common PAN Card No. It is submitted that appellant has been transferring the stock machines or stock raw materials etc among these units. The said transfer cannot be called as sale by M/s. RSPL, it being a transfer from one unit of the appellant company to the other. Accordingly, the excise duty as has been demanded on stock transfer of old machine by appellant to its sister unit is a wrong demand. It is submitted that this iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on clearance value of these goods is payable by the appellant. Impressing upon that there is no infirmity in the above said findings and that the compliance of Rule 3(5) as is mentioned in the invoice relied upon by the appellant is nothing but a mere book entry, ld. D.R. has prayed for the dismissal of the impugned appeal. 7. After hearing the parties and going though the record of the appeal I am of the considered view as follows;- Three issues are involved herein are as mentioned below:- A. Payment of duty on stock transfer of capital goods i.e. Old machine cleared to sister unit after their use. B. Payment of amount on clearance of non-excisable waste and scrap such as wooden pallets, rotten gunny bags, broken packing material etc. from the factory. C. Wrong availment of cenvat credit on ineligible input services. 8. Apparently and admittedly the appellant M/s. RSPL Ltd is a company having several sister units. There is no denial of department to the fact that all units share one common PAN. As far as first issue is concerned, admittedly appellant unit at Dhar, Madhya Pradesh has cleared capital goods that is an old machine to its sister unit at Patna valued a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not deem non-manufactured goods as exempted goods as defined under Rule 2 (d) of CCR. CESTAT, Delhi in the case of Kichha Sugar Company Ltd. reported as 2019 TIOL 1436 (Del.) has held that even after insertion of the Explanation 1 to Rule 6 of CCR. The goods as that of left over packing material cannot be treated as manufactured exempted goods. The another such decision of CESTAT, Delhi itself is in the case of Honda Motorcycle and Scooter India Pvt. Ltd. vs. CCE, Alwar reported in 2019 (4) TMI 743 (Del.) Even Hon ble Apex Court in the case of CCE Vs. M/s. West Coast Industrial Gases Ltd. [2003 (155) ELT 11 (SC)] has held that no duty can be demanded on the material which is used for the packing of the inputs on which credit has been taken when such packing material is cleared from the factory of the manufacturer. Based upon this decision there has been Department s Circular No. 721/37 of 6th June, 2003. Accordingly, I am of the view that the issue stands already settled that the left over packing material cannot be considered as non-excisable goods or the exempted goods to fall under the scope of Rule 6 of CCR, 2004. I also rely upon the case law in the case of M/s. Balkrishna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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