1 Basic Concepts of Central Excise

Transcription

1 Star Rating On the basis of Maximum marks from a chapter On the basis of Questions included every year from a chapter On the basis of Compulsory questions from a chapter Nil Nil 1 Basic Concepts of Central Excise This Chapter Includes: Constitution of India, Direct & Indirect Taxes, Central Excise Law: History, Body, Exemption Notifications, Departmental Circulars, Definitions; Levy & Collection of duty, Goods & Excisable goods, Manufacture, Intermediate products/captive Consumption, Site related activities/captive consumption, assembly, waste & scrap, Packing, Labeling, branding, Change in tariff heading/ sub-heading, Taxable event. Marks of Short Notes, Distinguish Between, Descriptive & Practical Questions 8.1

2 8.2 O Solved Scanner CA Final Gr. II Paper - 8 DESCRIPTIVE QUESTIONS CA Final Gr. II Nov [1] {C} (a) (i) Discuss in brief the concept of 'Deemed Manufacture'. (4 marks) As per the case of DELHI CLOTH & GENERAL MILLS-1977 for manufacturing the input must loose its existence, giving rise of new marketable commodity with a distinctive name, character or use. Simply, there must be transformation of input into output. But by the time, revenue in its favour, get the definition of manufacture, suitably amended, covering those process, which just do value-addition, as deemed manufacture. So, in case of deemed manufacture, the general concept of manufacture, that is based upon manufacture, need not to be applied. Presently deemed manufacture is covered under 2 categories as: 1. Deemed Manufacture as per Sec.2(f)(ii): It covers up process, specified under section or chapter notes of the First schedule of the Central Excise Tariff Act-1985, in relation to any goods. 2. Deemed Manufacture as per Sec.2(f)(iii): It covers up process, in relation to the goods specified in the 3 rd schedule (MRP based valuation) invoking packing or re-packing of such goods in a unit container or labeling or re-labeling of containers including the declaration or alteration of retail sale price or adoption of any other treatment to render the goods marketable May [1] {C} (a) Briefly explain any two of the following with reference to the provisions of Central Excise Act, 1944: (i) Wholesale dealer (ii) Factory (iii) Dutiability of Waste and Scrap. (2 2 = 4 marks)

3 [Chapter 1] Basic Concepts of Central Excise O 8.3 (i) Sec. 2(k) of the Central Excise Act-1944 defines Wholesale Dealer. Accordingly, wholesale dealer - means a person who buys or sells excisable goods wholesale for the purpose of trade or manufacture, and - includes a broker or commission agent who, in addition to making contracts for sale or purchase of excisable goods for others, stocks such goods belonging to others as an agent for the purpose of sale. (ii) As per Sec.2(e) of Central Excise Act-1944, factory - means any premises - including the precincts there of, - wherein or in any part of which excisable goods other than salt are manufactured or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on. (iii) The dutiability of waste & scrap was a disruptive matter, but now it is well settled. Waste & scrap is dutiable if all of these following conditions are satisfied:- (i) It must be manufacture product (ii) It must be movable (iii) It is Commercially marketable, and (iv) It is listed into tariff Entry The Apex Court in case of KHANDELWAL METAL & ENGINEERING WORKS-1985-SC, held that Notwithstanding the fact that wastes or scraps arose as intermediate or by-products of final products, if these wastes/scraps are marketable, will be charged to excise-duty, due to specific incorporation of specific Sub-headings in the various chapters of the tariff. The Apex Court, recognised that a prudent businessman will not produce waste or scrap intentionally but it is equally true that these are by-products of the finalproduct. So, presently the waste/scrap is also dutiable Subject to fulfilment of above four-points and supported by decision of Apex-Court. Tutorial Note Waste of exempted goods is also exempt from excise-duty.

4 8.4 O Solved Scanner CA Final Gr. II Paper Nov [1] {C} (d) Everything that is sold is not necessarily a marketable commodity chargeable to excise duty under the provisions of the Central Excise Act, (5 marks) Please refer Nov [1] (a) (i) on page no May [1] {C} (a) Briefly explain the following with reference to the provisions of Central Excise Act, 1944: (i) Adjudicating Authority. (2 marks) (ii) Central Excise Officer. (2 marks) (i) As per Sec. 2(a) of Central Excise Act-1944, Adjudicating Authority means any authority competent to pass any order or decision under this Act, but doesn t include - the C.B.E.C. - Commissioner of Central Excise (Appeals) Or - Appellate Tribunal. (ii) As per Sec. 2(b) of Central Excise Act-1944, Central Excise Officer means the Chief CCE, CCE, CCE(Appeals), Joint Commissioner, Additional Commissioner, Assistant Commissioner, Deputy Commissioner or any other officer of the Central Excise Department or any other person authorised by C.B.E.C May [4] (a) Explain whether a person who is neither a producer nor a curer nor a manufacturer of excisable goods, but he only stores such goods in a warehouse, can be called upon to pay the duties of excise on such goods? (3 marks) Yes, a storer, who stores the goods in a warehouse is liable to pay exciseduty, on such stored goods. As per Rule 4(1) of Central Excise Rules 2002, duty is payable by storer of the excisable goods in the manner provided under Rule 8. Again Rule 20(3) of Central Excise Rules 2002, also provides that when goods removed from factory to warehouse or from warehouse to warehouse, responsibility for payment of duty falls on the consignee warehouse or warehouse keeper.

5 [Chapter 1] Basic Concepts of Central Excise O Nov [1] {C} (a) Briefly explain any two of the following with reference to the provisions of the Central Excise Act, 1944: (i) Manufacture and processing (ii) Dutiability of site related activities (iii) Labeling and branding activities. (2 2=4 marks) (i) Manufacturing: It means one or more processes, through which, the original (input) commodity loses its existence and a new commodity comes into existence, having separate name, character or use. For Example, it was held in the case of A.P. Products V State of Andhra Pradesh, that when spices & condiments are processed giving output, known as Masala Powder, then the process of grinding & mixing held as manufacture. Processing:- It means one or more activity, necessary for manufacturing, but it doesn t mean that every processing is manufacturing. For Eg. Painting of goods is just processing and not manufacturing. (ii) Dutiability of site related activities: Dutiability of site related activity is conditional. If following conditions are satisfied, then site related activities will attract levy of duty; 1. The assembled product should have distinct name, character an use, a part from components that have gone into its production. 2. Such assembled product is specified in schedule to Central Excise Tariff Act Such product should be movable and 4. Such product shall be marketable. So, if assembly results into immovable property, which can t be removed as such i.e. without being dismantled into its components & parts, then it will not attract excise-duty. (iii) Labeling & branding activities: Presently labeling & branding is covered under the concept of deemed manufacture. As per Sec. 2(f) (iii) of Central Excise Act-1944, manufacturing includes the process of labeling or re-labeling as well

6 as branding of any goods specified under 3 rd schedule i.e. MRP based valuation. For Example, putting brand on unbranded goods. Covered under 3 rd schedule of Central Excise Act-1944 will amount to manufacture May [1] {C} (d) State briefly whether the following circumstances would constitute manufacture for purposes of Sec. 2(f) of the Central Excise Act, 1944: (i) Both inputs and the final product fall under the same tariff heading under the first schedule to the Central Excise Tariff Act, 1985 (Tariff Act). (ii) Inputs and final product fall under different tariff headings of the Tariff Act. (3 2 = 6 marks) (i) (ii) MANUFACTURE: Manufacture means bringing into existence a new product having distinct, name and use. Even if the input and transformed final product fall under the same tariff heading under Central Excise Tariff Act IN KAPRI INTERNATIONAL-2002-SC, the issue was properly settled by the Apex Court. It was held that even running Cotton fabrics and bed sheets, table cloths etc fall under the same tariff entry but the final product will attract duty, due to change in use. NOT MANUFACTURE: For deciding manufacturing, change in tariff heading is irrelevant. For manufacturing transformation is necessary i.e. input results into different output having distinct name, character or use. It was also held by Supreme-Court in the case of S R TISSUES SC, that change in tariff-heading will not amount to manufacture. PRACTICAL QUESTIONS Nov [1] {C} (a) (ii) TCL purchases duty paid metal rods and draws them into wire of a thinner gauge. Both the items fall under different tariff headings. The assessee claims that the process undertaken by him does not amount to manufacture. You are required to advise with reference to the present position of law in this regard. (4 marks)

7 [Chapter 1] Basic Concepts of Central Excise O 8.7 Here the issue for consideration is whether drawing of thinner gauge wire out of duty paid metal rods, manufacturing or not? Earlier in the case of TECHNOWELD INDUSTRIES-2003-SC, the Apex Court held that when the gauge of the rod was made thinner or wire was drawn, there was no manufacture of a new product, because rod remains rod and not fulfil the test of distinct character or use. Present-Position: Presently, the meaning of manufacture is not limited to its normal meaning based upon. Transformation. As per Sec. 2(f) (ii) & Sec. 2(f) (iii) of Central Excise Act-1944, certain process specified in Section/Chapter Notes of CETA will be treated as Deemed manufacture even without complete transformation of input into output. Presently the process of drawing or redrawing a rod, wire or any other similar article into wire amount to deemed manufacture in relation to products of iron & steel. [Sec. XY of CETA, FA-2004] So, the case of TECHNOWELD INDUSTRIES will not have applicability and TCL is liable to pay excise-duty May [1] {C} (d) ABC Company imported medicines in pallets with one big box containing assorted medicines in smaller units which were, then, repacked in thermocole boxes of different sizes which again were put into cardboard boxes. The cardboard boxes were in turn labeled containing, inter alia, the name of the medicine, the name of the manufacturer, the quantity, batch no., manufacturing date, expiry date and name of the marketing agency. The department relying upon note 5 to chapter 30, claimed that the activities as aforesaid amounts to manufacture i.e. bulk pack to retail pack. Decide whether the above activities tantamount to manufacture. (4 marks) On identical fact in the case of JOHNSON & JOHNSON LTD-2005-SC, it was held that mere packing for being marketed is not manufacture for purpose of chapter Note i.e. Note 5 to chapter 30. Re-packing has to be from bulk packs to retail packs, so as to render product marketable directly to consumer. It was also held that if product is imported as ready to market

8 8.8 O Solved Scanner CA Final Gr. II Paper - 8 retail packs, mere affixing the sticker containing information like names & addresses of importer, MRP etc. will not be deemed manufacture. In the present case, imported medicines were re-packed in thermocole boxes & then cardboard boxes, not for making the medicines marketable but for case of transportation & carrying as well as display of basic information. It can t be called that re-packing from bulk pack to retail pack, so M/s ABC will not be liable to pay any excise-duty. TUTORIAL NOTE: Note 5 to chapter 30 of CETA read as In relation to pharmaceutical products of Heading 3003 or 3004, conversion of powder into tablets or capsules, labeling or re-labeling of containers intended for consumers or repacking from bulk packs to retail packs or adoption of any other treatment to render the product marketable to the consumer, shall amount to manufacture Nov [1] {C} (b) Briefly examine the correctness or otherwise the following statements with reference to the Central Excise Act, 1944 giving reasons to support your answers: (i) Parts used for repair or replacement during warranty period are excisable. (2 marks) The statement given in the question i.e. Parts used for repair or replacement during warranty period are excisable is CORRECT. Excise-duty is a duty on manufacture or production of excisable goods, which is capable of being sold. So even if the manufactured excisable goods are not sold but replaced during free warranty period, the manufacturer will be liable to pay exciseduty. Similar view was given by the Apex: Court/Tribunal in the case of ECE INDUSTRIES LTD-2004-SC Nov [1] {C} (c) M/s. Super Pipes Ltd., is engaged in the manufacture of m.s. galvanized pipes. The excise department has required the assessee to include the cost of galvanization in the assessable value of the m.s. galvanized pipes for the purposes of determination of excise duty. The assessee claims that as the process of galvanization does not amount to

9 [Chapter 1] Basic Concepts of Central Excise O 8.9 manufacture, the cost of galvanization is not includible in the assessable value of the said pipes made from H. R. coils. Briefly discuss whether the stand taken by the assessee is correct with reference to the provisions of the Central Excise Act, (5 marks) The issue, in the given question is determination about inclusion of cost of galvanization into assessable value of pipes. The assessee claims that since galvanisation doesn t result into manufacture, because it is done in respect of already manufactured pipe whether the contention of assessee is tenable in Law? On identical fact, the Apex Court in the case of SIDHARTHA TUBES LTD-2006-SC, held that Even if a process doesn t amount to manufacture, the cost of that process is includible in assessable value of the product, if it adds to the intrinsic value of such product. The process of manufacture & valuation is different. As per general definition of manufacture, the process of galvanization was not manufacture but incidental to manufacture of m.s galvanised pipes. This incidental process will increase the intrinsic value of the product and excise duty has to be paid on Value of goods being cleared for marketing i.e. including the cost of galvanisation. TUTORIAL-NOTE Presently, even the process of galvanization amounts to deemed manufacture as per Note 4 to chapter 73 OF CETA. So, the contention of assessee that galvanization doesn t amount to manufacture is also wrong May [3] (c) M/s P Ltd. used to label its products with a foreign brand and claimed exemption under a notification. The classification list was approved by the department after carrying out verifications and all returns were regularly filed. The invoice containing description of goods were also regularly approved by the department. The department denied the benefit of exemption to the assessee by invoking extended period of limitation under Sec. 11A on the ground that it failed to declare the particulars regarding affixing of labels. Is the department justified? (5 marks)

10 8.10 O Solved Scanner CA Final Gr. II Paper - 8 As it is already settled by the Judicial-decisions that extended period of limitation can be invoked by the Department for issue of Show-Cause Notice (SCN) only in the case of fraud/collusion/wilful misstatement of facts or wilful suppression of facts with an intention to evade payment of duty by assessee or his agent. Here, it clear from the given facts that M/SSP Ltd has filed classification list with the department which has been approved by it after carrying out verifications. The assessee has also filed the return regularly claiming the exemption. Latter, the Department issued SCN, invoking extended period of limitation. The issue is, validity about SCN? It was held in the case of PAHWA CHEMICALS (P) LTD-2005-SC, that mere failure to declare doesn t amount to misdeclaration or wilful suppression. So, it can be concluded that the invocation of extended period of limitation is not valid/tenable in Law. CA Final Gr. II (New Course) SHORT NOTES May [5] (a) (i) Write a short note with reference to the Central Excise Act, 1944 and Cenvat Credit Rules 2004 on "goods" and "exempted goods". (3 marks) Sec. 2(d) of the Central Excise Act, 1944 carries an explanation which states that the expression goods, for purpose of the said clause, includes any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable. Rule 2(d) of the CENVAT Credit Rules, 2004 defines exempted goods as excisable goods which are exempt from the whole of the duty of excise leviable thereon and includes goods which are chargeable to nil rate of duty.

11 [Chapter 1] Basic Concepts of Central Excise O 8.11 DISTINGUISH BETWEEN May [3] (a) Differentiate between non-excisable goods and nondutiable goods. (3 marks) Sec. 2(d) of the Central Excise Act, 1944 defines excisable goods as goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 as being subject to a duty of excise and includes salt. Goods which are not listed in Tariff or goods which are mentioned in Tariff, but the column of rate of duty is blank are non-excisable goods, e.g. water (there is no entry in Tariff). Excise law is not applicable on non excisable goods. Non dutiable goods are excisable goods listed in Excise Tariff. Excise law is applicable to them, but these are not liable to excise duty. Non dutiable goods may be of two types: (i) Nil duty goods, i.e. Tariff rate is nil, and (ii) Exempted goods, i.e. 100% exemption under Sec. 5A. DESCRIPTIVE QUESTIONS Nov [3] (a) Discuss briefly whether Excise duty is attracted on the excisable goods manufactured in the following cases: (i) in the State of Jammu and Kashmir; (ii) by or on behalf of the Government. (2 marks) (i) As per Sec. 1 of Central Excise Act-1944, the Act shall be applicable to whole of India, including the state of Jammu & Kashmir. Again charging Sec. 3(1), Excise Duty is levied on all excisable goods which are produced or manufactured in India. So, excise duty is attracted on the excisable goods manufactured in the State of J&K. (ii) As per Sec. 3(1A) of the Central Excise Act-1944, excise duty shall be levied and collected on all excisable goods, manufactured/produced in India

12 8.12 O Solved Scanner CA Final Gr. II Paper by the Government or - on behalf of the Government; So, there is no discrimination between Government manufacturer & other manufacturer under Central Excise. So, Government is also liable to pay excise-duty Nov [3] (a) Explain briefly the concept of excisable goods as amended by the Finance Act, (2 marks) Excisable goods are defined under Sec. 2(d)of the Central Excise Act Accordingly Excisable goods means goods specified in the first schedule and the second schedule of Central Excise Tariff Act-1985 as being subject to duty of excise and includes salt. However, by Finance Act-2008,an explanation is inserted to define goods and deemed marketability. According to explanation, goods include any article, material or substance which is capable of being sold and such goods shall necessarily be deemed to be marketable. So, presently dross/skimming, ashes and residues etc. shall be deemed as marketable, making there excisable goods, liable for excise-duty May [3] (a) PQR & Co. is engaged in the business of fabrication and erection of structures of various types on contract basis. They entered into a contract with M/s. XYZ Co. for fabrication, assembly and erection on turn key basis of a waste water treatment plant. This activity involved procurement, supply, fabrication, transportation of various duty paid components and finally putting up a civil construction and erection of the waste water treatment plant and commissioning the same. The entire fabrication is done at site. The pressure testing was carried out as such until it was wholly built. The excise department has issued a show cause notice that the fabrication at site amounted to manufacture of excisable goods since the plant came into existence in an unassembled form as per drawings and designs approved by the client, M/s. XYZ Co. before the fabrication activity was undertaken. Therefore according to the department excise duty was payable on the value of the plant excluding the value of the civil work. Briefly discuss with reference to case law whether the show cause notice is sustainable in law. (5 marks)

13 [Chapter 1] Basic Concepts of Central Excise O 8.13 No, the show cause notice is not sustainable in law. The facts of the case are similar to the case of Larsen & Toubro Ltd. v. UOI 2009 (243) E.L.T. 662 (Bom.). The High Court opined that mere bringing of the duty paid parts in an unassembled form at one place, i.e. at the site, does not amount to manufacture of a plant. Simply collecting together at site the various parts would not amount to manufacture unless an excisable movable product (say a plant) comes into existence by assembly of such parts. In the present case, as the petitioner had stated that the waste water treatment plant did not come into existence unless all the parts were put together and embedded in the civil work. Waste water treatment plant did not become a plant until the process which included the civil work, was completed. Thus, the Court/Tribunal held that no commercial movable property came into existence until the assembling was completed by embedding different parts in the civil works. Accordingly, since waste water treatment plant was not a separate movable marketable good and came into existence only on assembly of parts in the civil work, there was no question of levying excise duty on it Nov [4] (a) The assessee M/s. T & Co. Ltd. were engaged in the manufacture of tarpaulin made ups. This was nothing but tarpaulin cloth prepared by making a solution of wax, aluminium stearate and pigments that were mixed. The solution was heated in a vessel and was transferred to a tank. Grey cotton canvas fabric was then dipped into the solution and passed through two rollers, where after the canvas was dried by exposure to sun. The tarpaulin made ups were prepared by cutting the cloth into various sizes and stitched and eyelets were fitted. The central excise department has issued a show cause notice to M/s. T & Co. Ltd. that the tarpaulin made ups prepared by means of cutting, stitching and fixing eyelets amounts to manufacture under the Central Excise Act, Write a brief note with reference to decided case law if any whether the department s view in the matter is legally sustainable. (6 marks) The facts of the given case are similar to the one decided by the Apex Court in the case of CCE v. Tarpaulin International (256) E.L.T. 481 (S.C.) in this case, the Apex Court has observed that stitching of tarpaulin sheets

14 8.14 O Solved Scanner CA Final Gr. II Paper - 8 and making eyelets does not change the basic characteristic of the raw material as the process does not bring into existence a new and distinct product different from the original commodity. The original material used i.e., the tarpaulin, is still called tarpaulin made ups even after undergoing the said process. Hence, the Supreme Court has held that process of making tarpaulin made ups by cutting, stitching the tarpaulin fabric and fixing eyelets therein cannot be said to be a manufacturing process liable to excise duty. Therefore, in view of the above mentioned judgement, the Department s view in the matter is not legally sustainable May [5] (a) (i) Explain briefly whether assembly would tantamount to manufacture under the Central Excise Act, (3 marks) Assembly is a process of putting together a number of items or their parts to make a product. All cases of assembly may not amount to manufacture as an already manufactured item may also be assembled to put it in a readily usable form. However, assembly of various parts and components may tantamount to manufacture if a new product which is and marketable emerges out of such assembly. Therefore, if an immovable property emerges after such assembly, it will not be consideration as manufacture. The Apex Court in the case of Name Tulaman Manufactures Pvt. V CCE 1988 (38) E.L.T. 566 (S.C) held that if the assembly results in new commercial commodity with a district name, character and use, then it would amount to manufacture May [3] (a) (i) M/s. Healthcare Ltd. is manufacturer of patent and proprietary medicines. Physician samples were distributed to medical practitioners as free samples. The Central Excise Department raised the demand of excise duty on such samples. The assessee contended that since the sale of the physician samples was prohibited under the Drugs and Cosmetics Act, 1940 and the rules made thereunder, the same could not be considered to be marketable and hence were not liable to excise duty.

15 [Chapter 1] Basic Concepts of Central Excise O 8.15 Examine with the help of a decided case law whether the contention of the assessee is valid in law. (3 marks) No the contention of assessee is not valid in law because on the identical matter in the case of Medley Pharmaceuticals Ltd. Vs CCE & C.,Daman [2011] the Supreme Court held that the assessee is liable to pay excise duty. Excise duty is leviable on the manufacture or production of excisable goods, whether or not such goods are actually sold. Marketability is essence of chargeability, but marketability means suitable for sale and goods need not, in fact, be marketed or sold. The Supreme Court also held that the prohibition on sale of physicians sample under Drugs and Cosmetics Act, 1940 and the rules made there under has no effect on marketability of the medicines. So the assessee was held liable to pay the excise duty and demand of excise duty on samples distributed by the assessee was valid in law May [4] (a) (ii) The respondent assessee was carrying on construction of metro railway. He manufactured pre-fabricated components of metro rail at one site to be used at different inter-connected metro construction sites. The assessee claimed exemption under Notification No. 1/2011-C.E.(N.T.) dated which exempts the goods covered under specified chapter headings for a specified period, manufactured at the site of construction for use in construction work at such site. Department contended that the assessee was not entitled to exemption as he did not fulfil the condition of manufacture at the site of the construction. Examine the validity of the departmental contention citing a decided case, if any. (3 marks) The given case is similar to the case of CP Meier Vs CCEx [2012]. In the case respondent assessee was carrying on construction of pre-fabricated components for Delhi Metro Rail Corporation Ltd at a separate off road site, away from main site, to avoid traffic jams. The components were exempt from excise duty vide special notification, if it is manufactured at the site of construction for use in construction work at such site. Since, in this case the component was manufactured at separate off road site, away from main site,

16 8.16 O Solved Scanner CA Final Gr. II Paper - 8 so the department denied benefits of exemption to the assessee. But it was held that exemption can t be denied on the grounds that the off road site which is used for manufacture is not the site of construction. The said goods so manufactured at off road site was ultimately used for construction work at site and the condition of exemption notification of use at construction site is satisfied. PRACTICAL QUESTIONS May [2] (b) A Port Trust used cement concrete armour units in the harbour for keeping water calm. Each unit weighed about 50 tons and is like a tripod and keeps water calm and tranquil. These units are essentially in prismoid form and were made to order. They are harbour or location specific. The Central Excise Department contended that the armour units are excisable goods and chargeable to duty. Examine the validity of the Department's contention in the light of decided case law. (5 marks) As given in the question, Port Trust has manufactured cement armour units as per order. These cement armour units are location specific. The Department charges excise duty in respect of manufacture of units of cement armour. The issue involved in the given question is determination about validity of Demand by the Department. As per landmark decision of Delhi-cloth Mills-1977-SC for being goods the article must satisfy twin test i.e. movability an marketability. If any of these two conditions, is not satisfied there will be no question of excise-duty. Similar matter was brought before Apex Court in case named BOARD OF TRUSTEES-2007-SC in which it was held that the process of preparation of cement concrete armour block was manufacture, but these are not marketable because - the units of cement armour were location specific, so can t be used in any other harbour and - the units were not capable of being bought & sold in the market as commodity.

17 [Chapter 1] Basic Concepts of Central Excise O 8.17 So, the marketability test was not fulfilled, so units of cement armour will not qualify as goods for the purpose of excise. Finally, on the basis of above cases, it can be concluded that Department contention is not tenable in law, because cement armours are not even goods Nov [3] (a) M/s. Amar Ltd. is manufacturer of cement. It carried out repair and maintenance of its worn out cement manufacturing plant by use of welding electrodes, mild steel, cutting tools, angles etc. In this process of repair/maintenance, some metal scrap and waste were generated, which were cleared by the assessee without paying any excise duty. The Department issued a notice demanding excise duty on such metal scrap and waste contending that these were excisable goods as these were marketable and movable and since it arose during a process incidental/ancillary to manufacture viz. repair of plant, the process of generation of scrap and waste amounted to manufacture in terms of Sec. 2 (f) of the Central Excise Act, You are required to answer the following questions: (i) What is manufacture in Central Excise as per Sec. 2(f)(i) and (ii) of the Act? (ii) What are the major conditions for levy of duty on waste & scrap? (iii) Whether waste & scrap resulting from repair/maintenance of plant is excisable and liable to duty? (2 marks each) Answer briefly citing case law, if any. The facts of the given case are similar to the case of Grasim Industries Ltd. v. UOI 2011 (SC) decided by the Supreme Court. (i) As per clause (i) and (ii) of Sec. 2(f) of the Central Excise Act, 1944, manufacture included any process- incidental or ancillary to the completion of a manufactured product; which is specified in relation to any goods in the Section or Chapter notes of the First Schedule to the Central Excise Tariff Act, 1985 as amounting to manufacture.

18 8.18 O Solved Scanner CA Final Gr. II Paper - 8 (ii) (iii) The Supreme Court in the case of Grasim Industries Ltd., held that the following conditions must be satisfied conjunctively for levy of excise duty on waste and scrap:- Waste and scrap ought to be excisable goods under Sec. 2(d) of the Central Excise Act, 1944; and Waste and scrap should be manufactured goods i.e., they should arise as a result of manufacture in terms of Sec. 2(f) of the Central Excise Act, In other words, it ought to be a by product of the final product. The Supreme Court in the Grasim Industries Ltd. case observed that a process incidental or ancillary to manufacture can be a process in manufacture or process in relation to manufacture of the excisable end product, which involves bringing some kind of change to the raw material at various stages by different operations. The Apex Court held that since the repair and maintenance of plant has no contribution/ effect on the process of manufacturing of cement (the end product), the same cannot be called as part of manufacturing activity in relation to the production of end-product. Thus, the metal scrap and waste generated from repair/ maintenance of plant cannot be said to be a by-product of the final product but the by-product or repairing process. Therefore, in view of the above discussion, it can be inferred that waste and scrap resulting from repair/ maintenance of plant (not being a process incidental to the manufacture of end-product) is not liable to excise duty.