HIGH COURT OF ALLAHABAD
Balrampur Chini Mills Ltd.
Union of India
CIVIL MISC. WRIT PETITION NO. 11791 (M/B) OF 2010
WRIT PETITION NOS. 11774 (M/B) OF 2011 & OTHERS
MAY 18, 2012
1. In compliance of the order dated 7.5.2012, Sri A.K. Misra, Chief Commissioner is present and he states that the Circular dated 3.10.2009 was issued by his predecessor and he retired on attaining the age of superannuation.
2. At the outset, it has been submitted by the learned Counsel for the parties that since the question involved in the above captioned writ petitions is different from the question involved in writ petition Nos.4477 of 2011 (MB), 1069 (MB) of 2012, 1802 of 2012 (MB), 1816 of 2012 (M/B), 3923 (MB) of 2011 and 1262 of 2012 (MB), as such, the same be de-linked from the instant bunch of writ petitions.
3. Accordingly, Registry is directed to de-link writ petition Nos. 4477 of 2011 (MB), 1069 (MB) of 2012, 1802 of 2012 (MB), 1816 of 2012 (MB), 3923 (MB) of 2011 and 1262 of 2012 (M/B) and list it separately.
4. Heard Sri Bharat Ji Agarwal, Senior Advocate, assisted by Sri Sudeep Kumar and Sri Piyush Agarwal, appearing on behalf of the petitioner and Sri I.H. Farooqui, Assistant Solicitor General of India and Sri Rajesh Singh Chauhan, learned Counsel for the Central Board of Excise & Customs.
5. In all these writ petitions, the petitioners pray for quashing the Circular dated 28.10.2009, issued by the Central Board of Excise and Customs, the Circular dated 3.10.2009 issued by the Central Excise, U.P., Lucknow and demand notice dated 24/27.9.2010 issued by the Joint Commissioner, Customs Central Excise and Service Tax.
6. Since in all the aforesaid writ petitions, the question involved is that whether Bagasse can be subjected to any duty under the Central Excise Act, it being a waste and not a manufactured product, as pronounced by the Hon’ble Supreme Court in the case of Balrampur Chini Mills Ltd. [Civil Appeal No. 2791 of 2005, decided on 21.7.2010], the facts of writ petition No.11791 (MB) of 2010 are given hereunder:-
The sugar, which is being manufactured, falls under sub-heading No.1701 of 1990 of First Schedule of Central Excise Tariff Act, 1985. The principal raw material of the petitioners’ final product, namely, sugar, is sugarcane, which is purely an agricultural product. During the course of manufacture of sugar, molasses (Sheera) emerges as a by-product, which attracts specific rate of duty under the Tariff Heading 1703 of 1000 of the above Act. Admittedly, the Central Excise Duty on sugar, molasses and industrial alcohol is paid by the petitioners on their clearances from the factory, as per procedure prescribed under the Central Excise Rules, 2002. In the process of manufacture of sugar, sugarcane is crushed, its juice is extracted and ‘Bagasse’ emerges as residue/waste of the sugarcane, which is neither a manufactured product nor is a final product of the sugar industry. The waste of sugarcane, namely, Bagasse, so generated is mainly used as fuel in the factory for manufacture of final products and surplus, if any, is transferred to the sister concerns of the petitioner. The ‘bagasse’ is classified under sub-heading 2303 20 00 of Central Excise Tariff Act, 1985 (5 of 198) as ‘Beet-Pulp’, ‘bagasse’ and other waste of sugar manufacture’ with NIL rate of duty.
The petitioner is using lubricant and grease to run the mills for crushing cane and extraction of juice in the process of which ‘Bagasse’ emerges as residue/waste after extracting juice from sugarcane. The petitioner transports about 65% cane from cane centres and service tax is being paid by the petitioner on the transportation of the cane and for which the CENVAT credit is taken. Service tax is also paid on repair and maintenance to contractors and also to the various other services for which the credit is taken by the petitioner. The petitioner is availing credit of Central Excise Duty paid on inputs and capital goods as provided under Cenvat Credit Rules, 2004 for further payment of Central Excise Duty on final products, viz., Sugar and Molasses.
7. Learned counsel for the petitioners submits that Rule 6 (1) of CENVAT Credit Rules is not applicable in the present case. According to him, Rule 6 (1) provides that CENVAT Credit shall not allow on such quantity of inputs which is used in the manufacture of exempted goods. For applicability of Rule (2), the following ingredients must exist:-
(i) where a manufacturer avails CENVAT credit on any input (as defined in section 2(k);
(ii) and manufactures such final products which are chargeable to duty and
(iii) also manufactures such final products which are exempted goods.
Hence, manufacture is referred to both dutiable/excisable goods and exempted goods, which are the final products. Only then, it is necessary for the manufacturer to maintain separate accounts.
8. This fact has been admitted even in the circular of the Chief Commissioner, Central Excise dated 3.10.2009 that bagasse is not a manufactured final product in view of the judgment of the Hon’ble Supreme Court. But the Chief Commissioner, Central Excise has erred in law in holding that because of the Explanation added to Section 2 (d) with effect from 13th May, 2008, the judgment of the Supreme Court stands nullified.
9. Since the Circular of Board and that of Chief Commissioner dated 2.1.2010 is binding upon the Assessing Authority, the petitioner has informed the jurisdictional Central Excise Authority that even though Rule 6 is not applicable and the petitioner is not liable for payment of any Central Excise Duty or reversal of 5% of the amount of bagasse sold, still the petitioner has deposited the amount of duty under protest.
10. Mr. Rajesh Singh Chauhan, learned Counsel appearing for the opposite parties submits that the writ petitions are not maintainable against the show cause notices. It is submitted that Balrampur Chini Mills who is having Central Excise Registration and is engaged in the manufacture of V.P. Sugar, Molasses and Denatured Absolute Alcohol falling under First Schedule to the Central Excise Tariff At, 1985 and have been availing credit of duty paid on the inputs, input services and capital goods used in relation to the manufacture of their final products in terms of the provisions of Cenvat Credit Rules, 2004. During the manufacture of sugar from the principal input, Sugarcane, a distinct reside bye-product, called ‘bagasse’ emerges which has been placed under Chapter Sub-heading No.23032000 of the First Schedule in the Central Excise Tariff Act, 1985 attracting ‘Nil’ rate of Central Excise Duty. The bagasse has durability, exchangeability and economic value. It is capable of being sold for a consideration and is actually being bought and sold in the market as Energy input, i.e. as a burning agent in boilers and even for ordinary consumption as an energy input. The bagasse is also being used in the manufacture of paper and paperboard and for that reason, an exemption has been granted by the Government vide notification No.04/2006 dated 7.12.2008, with an idea to enhance the consumption of renewable energy input as ‘bagasse’ in the manufacturer of paper and paperboard. Therefore, it cannot be said that ‘bagasse’ is a refuge or dirt or porridge and is not a manufactured product.
11. Elaborating his arguments, Mr. Chauhan has further submitted that in terms of the judgment of Hon’ble Supreme Court, in the year 2005-06, the commodity, bagasse is not a manufactured product. However, consequent upon the amendment brought by the Government in the newly enacted andenlarged Section 2 (d) of the Central Excise Act, 1944, vide the Finance Bill, 2008, ‘bagasse’ got covered under the definition of excisable goods w.e.f 10.5.2008. In view of the amendment, the Apex Body, i.e. Department of Revenue, Central Board of Excise and Customs issued Circular dated 28.10.2009 clarifying that ‘bagasse’ and other like materials would be chargeable to payment of Central Excise Duty. In case, the rate of duty in respect of such products is ‘nil’ in the Tariff or they are exempted from the duty in terms of any exemption notification and if CENVAT Credit has been taken on the inputs which are used for manufacture of dutiable and exempted goods and no separate accounts have been maintained in this regard, then in terms of Rule 6 of Cenvat Credit Rules, 2004, the proportionate credit would be reversed or 5% amount would be paid. Therefore, the bagasse is now (w.e.f. 10.5.2008) an ‘exempted excisable goods’ and hence the provisions of Rule 6 of the Rules woud apply.
12. While granting interim order on 2.12.2010, a coodinate Bench of this Court has passed the following order:-
“Notice on behalf of respondents has been accepted by Sri Rajesh Singh Chauhan, who prays for and is granted two weeks’ time to file counter affidavit. Power has also been filed by Sri Alok Kumar Tripathi on behalf of the Union of India.
The issue involved in the present case is whether Bagasse can be subjected to any duty under the Central Excise Act, it being a waste and not a manufactured product, as pronounced by the Supreme Court in the case of the petitioners themselves in Civil Appeal No. 2791 of 2005, decided on 21.7.2010.
In the case of Commissioner of Central Excise v. Shakumbhari Sugar and Allied Industries Ltd, reported in 2004 (176) ELT-819 (Tri-Delhi), it has been held by the Tribunal that bagasse obtained during manufacture of sugar is a waste product, and though it finds mention in the Schedule of the Central Excise Tariff, but it does not become a final product. Such bagasse is nothing but a waste obtained during the manufacture of sugar and it cannot be regarded as a final product, hence, provisions of Rule 57 CC of erstwhile Central Excise Rules, 1944 are not applicable. The civil appeal filed by the Department against the said judgment was thus dismissed by the Supreme Court.
On amendment being made in Section 2(d) of the Act, where an explanation was added, saying that “goods” include 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, the Board issued a Circular dated 28.10.09, saying that in view of the amended provisions aforesaid, if the cenvat credit has been taken on the inputs which are used for manufacture of dutiable and exempted goods, then in terms of Rule 6 of the Cenvat Credit Rules, 2004, the assessee is required to reverse the proportionate credit or pay 5% amount. In turn, the Chief Commissioner, Customs, Central Excise and Service Tax, issued a Circular dated 3.10.09, requiring the authorities to take action under Rule 6 of the Cenvat Credit Rules, 2004.
The petitioner has deposited the amount alongwith the interest under protest, but now the petitioner has been served with a show cause notice, requiring it to show cause as to why the amount deposited be not appropriated and why the penalty be not imposed upon it.
Sri Rajesh Singh Chauhan, appearing for the respondents, says that it is a show cause notice alone, and therefore, whatever points are being raised by the petitioner, the same can be raised there.
In response, learned counsel for the petitioner submits that once the Circular has been issued by the Board and in consequence whereof, the Chief Commissioner, Customs, Central Excise and Service Tax, has also issued another Circular, holding that the bagasse is covered by Rule 6 of the Cenvat Credit Rules, 2004, though it is nothing but a waste obtained during the manufacture of sugar waste, which cannot be regarded as a final product, on which no duty is payable, the plea of the petitioner cannot be considered by the assessing authority, in view of the circulars, referred to above, issued by the Board and the Chief Commissioner respectively, which specifically direct for charging such duty, simply because, bagasse has been found to be marketable.
Interpreting Rule 6 and in particular sub-rule (2), learned counsel for the petitioner submitted that the aforesaid rule can attract only when the goods are manufactured which are dutiable and exempted, and they are final products, but the instant case is not a case which can be said to be covered under the said rules.
Learned counsel for the petitioner relied upon the judgement of the apex court in the case of Union of India v. Ahmedabad Electricity Co. Ltd and others  11 SCC 129, in support of his plea that merely because the bagasse is a marketable product, duty cannot be imposed, as in that case, the Supreme Court has considered the duty upon the cinder, which is also a waste and it does not involve any manufacturing activity.
Their Lordships, on the plea of maintainability of the writ petition, observed that ‘in the facts of the case, the High Court would have been justified in rejecting such an objection and the impugned circular could not have been challenged before the departmental authorities as they would have felt bound by it’. Learned counsel for the petitioner also relied upon the case of Mercury Laboratories Pvt. Ltd. v. State of U.P. and others, 2000 119 STC 271 All, wherein the Division Bench of this Court has taken a view that the Circular issued by the Commissioner, Sales Tax was binding upon the assessing authority and, therefore, the writ petition would be maintainable on the show cause notice.
The issue requires consideration whether on bagasse, any duty can be charged and whether Rule 6 would be applicable for the purpose of charging duty.
In view of the Circulars issued by the Board of Directors and thereafter by the Chief Commissioner, Customs, Central Excise and Service Tax, we are, prima facie, satisfied that the authorities would not be in a position to take a view against the aforesaid circulars.
We, therefore, stay further proceedings in the matter in pursuance of the notices impugned dated 24.9.2010 and 27.9.2010, till the next date of listing.
List this matter in the week commencing 20.12.2010.”
13. A careful perusal of the aforesaid order, it reveals that after considering the maintainability of the writ petition, the interim order has been passed. Therefore, there is no necessity to delve into the maintainability of the writ petition.
14. Rule 6 of CENVAT Credit Rules provides for obligation of manufacturer, who manufactures dutiable goods and who manufactures exempted goods. Rules 6 (1), 6(2) and 6(3) of the aforesaid Rules, which are relevant, are reproduced as under:-
Rule 6: Obligation of manufacturer of dutiable and exempted goods and provider of taxable and exempted services –
(1) The CENVAT Credit shall not be allowed on such quantity of input or input service which is used in the manufacture of exempted goods or for provision of exempted services, except in the circumstances mentioned in sub-rule (2).
Provided that the CENVAT credit on inputs shall not be denied to job worker referred to in rule 12AA of the Central Excise Tariff Rules, 2002, on the ground that the said inputs are used in the manufacture of goods cleared without payment of duty under the provisions of that rule.
(2) Where a manufacturer or provider of output service avails of CENVAT credit in respect of any inputs or input services, and manufacturers such final products or provides such output service which are chargeable to duty or tax as well as exempted goods or services, then the manufacturer or provider of output service shall maintain separate accounts for receipt, consumption and inventory of input and input service meant for use in the manufacture of dutiable final products or in providing output service and the quantity of input meant for use in the manufacture of dutiable final products or in providing output service and the quantity of input meant for use in the manufacture of exempted goods or service and take CENVAT credit only in that quantity of input or input service which is intended for use in the manufacture of dutiable goods or in providing output service on which service tax is payable.
(3) Notwithstanding anything contained in sub-rules (1) and (2), the manufacturer of goods or the provider of output service, opting not to maintain separate accounts, shall follow either of the following options, as applicable to him, namely:-
(i) the manufacturer of goods shall pay an amount equal to five per cent, of value of the exempted goods and the provider of output service shall pay an amount equal to six per cent, of value of the exempted services; or”
15. A perusal of Rule 6 (1) clearly shows that the manufacturer has to manufacture both dutiable goods as well as exempted goods. Since bagasse is not manufactured goods but is a waste product which emerges/comes into existence in the process of manufacture of sugar, it is not manufacture of exempted goods.
16. Rules 6 (2) stipulates that where a manufacturer avails CENVAT credit in respect of any inputs and manufactures such final products which are chargeable to duty as well as exempted goods, the manufacturer shall maintain separate accounts for receipt, consumption and inventory of input meant for use in the manufacture dutiable final product and the quantity of input meant for use in the manufacture of exempted goods.
17. Under Rule 6 (3) the manufacturer of dutiable final product and the manufacturer of exempted goods who does not maintain separate accounts shall be liable to pay an amount of 5% of the value manufactured gods.
18. In the instant case ‘sugar’ is the final product and molasses is an intermediary product or by-product, therefore, for applicability of Rule 6, the manufacture of dutiable goods and manufacture of exempted goods are conditions precedent. Since waste is never manufactured and it only emerges in the process of manufacture of final product, Rule is not applicable to bagasse which is admittedly a waste, which emerges from the crushing of sugarcane for the manufacture of final product, namely, sugar.
19. The law is well settled that ‘bagasse’ generated from the crushing of the sugarcane is neither manufactured goods nor manufactured final product, but it is a residue/waste. The Apex Court while dismissing the Civil Appeal preferred by the department in the case of CCE v. Shakumbhari Sugar & Allied Industries Ltd. 2005 (189) ELT A62 (SC), uphold the findings recorded by the Tribunal in the case of Shakumbhari Sugar & Allied Industries Ltd., (supra) whereby it has been held that the ‘Bagasse’ obtained during the course of manufacture of sugar out of sugarcane may find an entry in Schedule to the Central Excise Tariff, but it does not become a final product merely on such entry. Such ‘bagasse’ is nothing but a waste obtained during manufacture of sugar waste cannot be regarded as a final product exempt from duty for invoking provisions of Rule 57 CC of Central Excise Rules, 1944.
20. The said finding has also been followed in the cases of Central Excise Commissioner v. Mahalakshmi Sugar Mills and Commissioner Central Excise, Meerut v. U. P. State Sugar Corporation and held that the Bagasse and press mud are not final products of the manufacturer. Accordingly, recovery of 8% amount of the waste Bagasse and press mud cleared by the said sugar company was held to be not justified.
21. The Hon’ble Apex Court while dismissing the Civil Appeal No.2791 of 2005 preferred by the department vide judgment and order dated 21.7.2010, upheld the findings recorded by the Tribunal that reversal of 8% under 57 CC is not applicable as ‘Bagassee’ is not a final product, but it is a waste. It is worthwhile to mention here that in the judgment dated 22.11.2004 of Tribunal, it was specifically referred in para 2 that the appeal filed by the Commissioner, Central Excise in the case of CCE v. Kicha Sugar Co. Ltd. was dismissed by Hon’ble Supreme Court on 20.2.2004.
22. As held by the Apex Court, bagasse is not a manufactured goods and it is never manufactured, but it only emerges in the process of final product, namely, sugar. bagasse being not a manufactured goods and being a waste, hence Rules 6 (2) and Rule 6 (3) are not applicable.
23. Section 2 (d), as amended by Finance Act, 2008, w.e.f. 13.5.2008, is reproduced as under:-
“excisable goods” means goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as being subject to a duty of excise and includes salt; Explanation – For the purposes of this clause, “goods” 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.
24. So far as the Explanation added to Section 2 (d), it only refers to the goods which is capable of being bought and sold shall be deemed to be marketable. Earlier also, bagasse was being bought and sold for a consideration and even after the amendment in 2008 it is being bought and sold for a consideration. Hence, it was marketable earlier also and no difference has been made about the marketability of bagasse on account of addition of Explanation to Section 2 (d) of Central Excise Act inasmuch as it does not cease to be waste and it does not become a manufactured final product for the purposes of Rule 6 of CENVAT Credit Rules.
25. Rule 6 of CENVAT Credit Rules, 2004 is equivalent and analogous to Rule 57CC of Central Excise Rules, which has been interpreted by the Bombay High Court in the case of Rallies India Ltd. v. Union of India 2009 (233) ELT 301. Para 2 of the judgment refers to Rule 57 CC which is now equivalent to Rule 6 of the CENVAT Credit Rules, 2004, which are in respect of both the period, as mentioned in paragraphs 13 and 14 of the judgment. Paragraphs 25, 26 and 28 refer to the waste which is not final product. Hence, neither Rule 57 CC nor Rule 6 (2) is applicable.
26. In the case of CCE v. Gas Authority of India Ltd. 2008 (232) ELT 7, Hon’ble Apex Court has held that rules denying benefit of Modvat Credit can only be in respect of final products and since the commodity mentioned in the show cause notice was not final product, hence the benefit of the Modvat Credit cannot be denied.
27. Thus, it is not in dispute that the bagasse is an agricultural waste of sugarcane, though marketable product, but the duty cannot be imposed as it does not involve any manufacturing activity simply by adding an Explanation under Section 2(d) of the Central Excise Act, 1944, whereby the definition of ‘goods’ has been defined will not make bagasse, which, as stated hereinabove, is an agricultural waste to be a dutiable item and the Chief Commissioner vide Circular dated 3.10.2009 nullified the judgment and order dated 21.7.2010 rendered in Civil Appeal No. 2791 of 2005.
28. Bagasse is classified under sub-heading 2303 20 00 of Central Excise Tariff Act. In view of the judgment of Apex Court in Civil Appeal No.2791 of 2005, Commissioner of Central Excise v. Balrampur Chini Mills, on 21.7.2010, the Circular of the Chief Commissioner, Central Excise, Lucknow as well as Circular of Central Board of Excise and Customs are liable to be quashed which is the basis for issuing the demand.
29. In the impugned notice dated 27.9.2010, it has been mentioned that as per Rule 6 of the CENVAT Credit is availed on the inputs which are used in the manufacture of both dutiable and final products, then an amount equal to 10% (up to 6th July, 2009) or 5% (w.e.f. 7.7.2009) of the sale value of exempted final products is required to be paid. Therefore, neither the penalty nor the interest can be charged from the petitioners, in view of the fact that the petitioners are not liable to duty either by payment or by reversal in respect of bagasse sold by the petitioner. As the petitioners have paid the entire duty and interest under protest, the entire deposited amount shall returned to them.
30. In view of above discussion, all the writ petitions are allowed and impugned Circular dated 28.10.2009, issued by the Central Board of Excise and Customs, the Circular dated 3.10.2009 issued by the Central Excise, U.P., Lucknow and demand notice dated 24/27.9.2010 issued by the Joint Commissioner, Customs Central Excise and Service Tax are hereby quashed. As some of the petitioners deposited the entire duty and interest under protest, it should be returned to them, within a maximum period of four weeks, from the date of presentation of a certified copy of this order.