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Central Excise - Case Laws
Showing 21 to 40 of 80368 Records
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2024 (5) TMI 63 - CESTAT CHENNAI
Undue delay in processing refund - Duty was paid under protest - returning the claim application for refund holding to be pre-mature - applicability of time limitation - HELD THAT:- The delay of more than 10 years in finalizing the matter is shocking. No seriousness has been shown in the matter by the Divisional Authorities even though they were aware of the matter being pursued by the Appellant before higher Appellate forums. This being so the refund claim is restored back to the files of the learned Original Authority for proper disposal. In case the claim is sought to be rejected partially or in full, notice may be given to the Appellant following the principles of natural justice and afford a reasonable and time bound opportunity to the appellant to state their case both orally and in writing if they so wish, before issuing a speaking order in the matter disposing of the refund claim.
Considering the huge delay and hardship already faced by the Appellant, it is desirable that the jurisdictional Commissioner monitor the timely disposal of the matter in terms of departmental instructions and the directions given herein to the Original Authority, for which a copy of this order is being marked to him.
Appeal allowed.
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2024 (5) TMI 62 - CESTAT AHMEDABAD
Clandestine removal - case of the department is mainly based upon dairies and statements of various persons - retraction of statements - reliability of statements - denial of cross-examination - existence of corroborative evidences or not.
Demand of duty based on five pocket sized dairies - HELD THAT:- The seizure of the said diaries from the appellant’s factory as sought to be shown by the investigation is not established; and, having wrongly shown as seized from the factory premises by the investigation; weakens evidentiary value of the said diaries - the said dairies contain certain names and figures which are taken as weight of the finished goods and duty demand has been worked out on that basis. Some of the buyers of the finished goods, whose names are shown in the diaries, have stated in their statement that they have purchased the goods from the appellant firm with as well as without invoice and that in respect of goods purchased without invoice, payment was made in cash, however cross-examination of the said buyers has been denied by the Learned Commissioner without giving any justifiable reason; the said statements are therefore not relevant and admissible as evidence.
It can been seen that once untested statements and rough records/diaries are discarded, there is no tangible evidence, absent which case of clandestine removal cannot be sustained as held in the decision of this tribunal in the case of Vishwa Traders Pvt Ltd V. Commissioner of Central Excise [2011 (10) TMI 94 - CESTAT, AHMEDABAD] - the demand of duty of Rs. 2,22,48,302 based on said dairies as worked out at Annexure X – VII is not tenable and is liable to be set aside.
Demand of duty based on weighment slips/details - HELD THAT:- The third party records under the statements of buyers and weighment bridge operators cannot be straightway relied upon having denied cross-examination of the said person to the appellants. Further, the said party who has allegedly purchased goods from the appellant without invoice has not been made party to show cause, may indicate that the statements might have been obtained from the parties by way of inducement; the said statements and records produced thereunder therefore cannot relied upon to impose duty upon the appellant firm in absence of concrete and corroborative evidence in this behalf. In view of above discussion, duty demand raised cannot be sustained.
Demand of duty based on rough accounts (Rojmel) of alleged buyers namely Ketan Tulsidas Sangani and Rajubhai Kacha - Demand of duty based on the duplicate invoices recovered from the factory of appellant firm - HELD THAT:- No tangible and corroborative evidence viz. buyers statement, transportation etc have been gathered to substantiate the allegation of removal of goods under earlier invoice number without payment of duty. Even, shortages of raw material and discrepancies in maintenance of daily stock account as pointed out by the department, needs to be corroborated with tangible and sufficient evidence to bring home the serious charges of clandestine removal, which are clearly absent; case of department cannot be sustained on account of weak and insufficient evidence. It has been consistently held in several judicial pronouncements of the Hon’ble High Court and Apex Court that in case of clandestine manufacture and removal of goods, revenue has to prove it beyond doubt.
The allegation of clandestine removal of goods as made out against the appellant firm is not substantiated with tangible and sufficient evidence; consequentially duty demand cannot be sustained and hence penalties upon all other appellants are also liable to be set aside.
The impugned order is set aside. Appeals are allowed.
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2024 (5) TMI 8 - MADRAS HIGH COURT
Recovery of rebate claim - Adjusted rebate claims towards their existing liabilities - petitioner's eligibility for rebate on the exports made during months of March, 2013; July, 2011; December, 2011; October, 2011; and January, 2011 - HELD THAT:- Although the Department succeeded before the Appellate Commissioner, vide Order-in-Appeal and the petitioner's revisions were dismissed on 31.03.2014 and recovery were ordered in terms of Order-in-Original, which stands confirmed by the Appellate Commissioner's Order-in- Appeal, the fact remains that these orders have been set aside and the case has been remitted back to the respondents to consider the issue afresh as far as rebate claim for Rs. 27,71,599/-. Thus, there is no demand that is remaining in force to be unenforced as on date for a sum of Rs. 27,71,599/-.
There is no justification in adjusting the above said amount of Rs. 27,71,599/- from the rebates on exports made by the petitioner, which the petitioner is otherwise entitled to. Adjustments have been made against the respective Order-in-Original have already been given above. Hence, the amounts adjusted have to be refunded back to the petitioner together with interest. In case, in the remand proceedings, the petitioner is held ineligible for the rebate on the exports made by them in the month of April, 2012, the respondents can independently recover the amount from the date of other amount that may be refundable as on the date of the order to be passed by the Revisional Authority.
These Writ Petitions are allowed.
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2024 (5) TMI 7 - ALLAHABAD HIGH COURT
Withdrawal of Compounding scheme - Declaration made in the year 1997-98 can be treated as the declaration for the year 1998-99 under Section 3A of the Central Excise Act read with Rule 96ZO(3) of the Central Excise Rules, 1944 or not - whether the present applicant had withdrawn its offer at the beginning of the Financial Year 1998-99? - HELD THAT:- The first communication that the applicant wrote to the revenue authorities is dated 15.6.1998 when it indicated its intent to discharge duty liability on actual production basis. However, prior to that date, for the month of April, 1998, the applicant had already discharged duty liability on compounded basis. Having done that, the applicant had clearly indicated to the revenue authorities its intent to remain under the benefit of the compounding scheme for the Financial Year 1998-99. It is self-contradicted contention being advanced that though the applicant had paid up the compounding fee for the month of April, 1998, it had not agreed to be retained under the benefit of the compounding scheme.
As to the mode in which the applicant may ever have applied to discontinue the benefit of the compounding scheme, Rule 96ZO(3) of the Rules leaves no doubt that a declaration was required to be filled by the applicant to be admitted to the benefit of the compounding scheme. It must have been filled at the relevant time i.e. August, 1998, in terms of the said provision. Clearly, the applicant was not required to submit the same on year to year basis. Once the scheme has been interpreted by the Supreme Court, it is mandatory that option once exercised for a financial year, may not be withdrawn midway.
The only recourse that applicant may have taken may be to apply to the jurisdictional authority to discontinue the benefit of the compounding scheme from the beginning of the next Financial Year i.e. 1.4.1998. For such option to be exercised, the applicant ought to have made that application before the date i.e. 1.4.1998, and in any case before making the deposit of the compounding fee for the month of April, 1998.
Having done otherwise, the applicant lost the opportunity to withdraw from the compounding scheme for the Financial Year 1998- 99.
Application dismissed.
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2024 (5) TMI 6 - CESTAT CHENNAI
Method of Valuation - Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 or cost plus job work charges method to be adopted by them at the time of clearance - receiving goods from principal manufacturer namely M/s. Marico Industries and carrying out job work on the goods - demand alongwith interest and penalty - HELD THAT:- A Coordinate Bench of this Tribunal in M/S. BHAVANI ENTERPRISES, SREE MOOKAMBIKAI POLYMERS, M/S. SMITH ENTERPRISES VERSUS COMMISSIONER OF CENTRAL EXCISE, PONDICHERRY AND VICE-VERSA [2018 (2) TMI 139 - CESTAT CHENNAI] has examined an identical matter, wherein they have observed 'it needs to be mentioned that Rule 8 applies when goods are not sold. The goods (HDPE bottles) are sold by appellant to M/s. Marico. The appellant does not captively consume the goods nor does M/s.Marico consume it on behalf of appellant.'
The impugned orders are not sustainable and merits to be set aside - Appeal allowed.
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2024 (5) TMI 5 - CESTAT NEW DELHI
CENVAT Credit - Allegation of receipt of only invoices without receipt of duty paid goods - non-existent certain manufacturers and 1st stage dealers - non-compliance with the provisions of Rule 9(5) of the Cenvat Credit Rules, 2004 - recovery alongwith interest and penalty - HELD THAT:- In the instant case, that the appellant had verified that the invoices issued by the 2nd stage dealers were as per the prescribed format under Rule 11 of the Central Excise Rules, 2002, and the said dealer was duly registered with the central excise authorities. The goods were transported in vehicles which had GRs/bilties. The record of the receipts and usage was maintained in the statutory records by the appellant. The payment was remitted through banking channels. Shri Sushil Malani, Director has in his statement stated that all necessary precautions were taken by them as per the provisions of Rule 9(5) of the Cenvat Credit Rules, 2004. It is evident that the appellant had taken all reasonable precautions as per legal provisions. Consequently, the penalties imposed on the appellants can also not be sustained.
The impugned order is set aside - appeal allowed.
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2024 (5) TMI 4 - CESTAT CHENNAI
Recovery of wrongly utilized credit - utilization of Cenvat Credit availed on Basic Excise Duty (BED) for payment of EC and SHEC - violation of Rule 3 (7)(b) of Cenvat Credit Rules, 2004 - Period between April 2013 and January 2014 - HELD THAT:- The very same issue was considered by Tribunal in the case of M/S. VEDANTA LTD. VERSUS CCE, TIRUNELVELI [2018 (7) TMI 158 - CESTAT CHENNAI] and the Tribunal held that the demand confirmed alleging that the appellant cannot utilize the credit availed on Basic Excise Duty for discharging Education Cess and Secondary Higher Education Cess cannot be sustained. In the said case the Tribunal followed various decisions in which Rule 3 (7)(b) of Cenvat Credit Rule was also analysed.
In the case of COMMISSIONER OF C. EXCISE, DIBRUGARH VERSUS PRAG BOSIMI SYNTHETICS LTD. [2013 (11) TMI 487 - GAUHATI HIGH COURT], the Hon’ble Guwahati High Court considered the issue in detail as to whether National Calamity Contingent Duty (NCCD) is a duty exempted under Notification No.32/99 - CE dated 08.07.1999 and if not whether CENVAT credit availed under Cenvat Credit Rules, 2004 can be utilized for payment of such duty which is not exempted under such Notification - Hon’ble High Court held that NCCD is nothing but a duty of Excise and in para 8 of the said judgment the question whether the CENVAT credit can be utilized for payment of NCCD was discussed and held in favour of assessee.
The Hon’ble Supreme Court in the case Unicorn Industries [2019 (12) TMI 286 - SUPREME COURT] has observed that ‘the duty on NCCD, Education Cess and Secondary Higher Education Cess are in the nature of additional Excise duty and it would not mean that the area based exemption Notification dated 09.09.2003 would be applicable to these duties (NCCD), particularly, when there is no reference to the Notification issued under Finance Act 2001.
The Hon’ble jurisdictional High Court had considered the decision in the case of M/s, Unicorn Industries also to reach the conclusion that Cess being duty of excise the importer can pay Cess using MEIS Scrips. From the above, there are no hesitation to hold that the decision of the Tribunal in the case of M/s. Vedanta Ltd. is squarely applicable. The demand therefore cannot be sustained.
The impugned order is set aside. The appeal is allowed.
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2024 (5) TMI 3 - CESTAT CHENNAI
Reversal of CENVAT credit - Investment in shares - Nature of activity - Sale or service - Exempt service or not - Press mud is waste product like Bagasse or not - exigibility of goods/service tax - burden on Revenue to prove the case.
Taxability - Press mud is waste product like Bagasse or not - exigibility of goods/service tax - burden on Revenue to prove the case - HELD THAT:- The impugned demand cannot sustain since Press mud is no different from Bagasse, which is also a waste product, which is also a result of the manufacturing process of a different product and, consequently, the impugned demand cannot sustain - Hon’ble Allahabad High court in the case of M/S BALRAMPUR CHINI MILLS LTD. THROUGH ITS GENERAL MANAGER VERSUS UNION OF INDIA, MINISTRY OF FINANCE DEPARTMENT OF REVENUE [2019 (5) TMI 972 - ALLAHABAD HIGH COURT] has held that 'Rule 6 of the Cenvat Credit Rules would have no application for reversal of Cenvat Credit in relation to Bagasse.' - demand set aside.
Reversal of CENVAT credit - Investment in shares - Exempt service or not - HELD THAT:- The appellant had invested in shares/securities that were giving dividend income but, however, we fail to understand as to what was ‘service’ element involved in such investment. The revenue has only fastened the liability on surmises and without there being any positive findings in this regard. It was for the revenue to prove that ‘investment’ itself was a service, in order to demand service tax. Rather, the first appellant authority himself has at paragraph No.14.01 observed that ''such investment would be an activity outside the definition of service, being a mere transaction in money'' but, however, has concluded in the same para that activity of investment in shares and derivative trade satisfy the definition exempted services under Cenvat Credit Rules, 2004.
There are no logic in treating the mere ‘investment’ as an exempted service because, the revenue has not specifically alleged if there is any ‘service’ in the first place. Secondly, up to 01.07.2012, even if it is assumed to be an exempted service, then the same was not taxable. With the introduction of negative list w.e.f. 01.07.2012, S. 66B of the Finance Act empowers the levy of service tax on the value of all services other than those in the negative list, which are provided or agreed to be provided, by one person to another. Exempted service, although ‘exempted’, nevertheless should satisfy the ingredients of ‘service’ in the first place.
In this case, by making an investment the appellant does not do any activity for another for a consideration. Further, specific exclusion from the definition of ‘service’ is given to transactions involving ‘transfer of title in goods or immovable property by the way of sale’, since trading in security involves transfer of title in goods, the activity of ‘trading in securities’ cannot therefore be said to be a service - the authorities below have grossly erred in demanding the tax on the ‘investment’ made, by treating the same as ‘service’ although exempted and consequently, the impugned order is set aside.
Appeal allowed.
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2024 (4) TMI 1093 - SC ORDER
Maintainability of SLP - petitioners do not press this special leave petition and they intend to file a Review Petition before the High Court - not given scope to participate in the hearing - violation of principles of natural justice - it was held by High Court that if the authority did not follow the direction of the CESTAT, there is gross laches on the part of the authority in passing the order. Had the petitioners brought the fact to the notice of the CESTAT with regard to laches of the authority, in that event the CESTAT could have considered the same. Without doing so, the petitioners having approached this Court, the writ petition is not maintainable.
HELD THAT:- The special leave petition is dismissed as not pressed with the aforesaid liberty - In the alternative, liberty is also reserved to the petitioners herein to file an appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) within a period of one month from today.
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2024 (4) TMI 1092 - SC ORDER
Maintainability of review petition - time limitation - Process amounting to manufacture - purchase of duty paid chassis and undertaking body building activity - motor vehicles described in sub-headings 8702.10 and 8702.90 of Heading 87.02 - the SC held that given the structure of the statute which clearly comprehends Entry 87.02 [by specifically referring to Headings 8702.10 and 8702.90); that the activity carried on by the appellant results in a finished product i.e. useable buses, the appellant’s contention that fabrication does not amount to manufacture, does not merit consideration.
HELD THAT:- There is an inordinate delay of 389, 390 and 389 days, respectively, in filing the present review petitions - there are no good ground and reason to review the order dated 11.01.2023.
The review petitions are dismissed on the ground of delay, as well as, on merits.
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2024 (4) TMI 1091 - CESTAT NEW DELHI
Recovery of differential Central Excise Duty - Clearance of subsidized SSP under concessional rate of duty - Violations of the conditions of the Exemption Notification - entire production was meant for agriculture use only and it was explicitly mentioned so on every pack - case of the revenue is that after the SSP was removed and sold to IPL, IPL further sold it to Mahadhan who, further sold it to Hindustan who misused the SSP for agriculture use to manufacture other products in their industry - HELD THAT:- The diversion of SSP meant for and clearly marked as meant for agriculture use to non-agricultural use was done by Hindustan alone. It is undisputed that all bags of SSP were clearly “meant for agriculture use only”. Such being the case, there was absolutely no reason for Hindustan to have put the subsidized SSP cleared under concessional rate of excise duty and intended for agricultural use to industrial use.
The submission of Hindustan in its appeal that the SSP, which it purchased, was of sub-standard quality holds no water. As rightly pointed out by the lower authorities the Fertilizer Control Order 1994 clearly requires marking of fertilizer meant for agriculture use and non-agriculture use. There is nothing in the records to substantiate the appellant’s claim that the SSP sold by Manglam to IPL and IPL to Mahadhan and further by Mahadhan to Hindustan was of sub-standard quality unfit for agricultural use. Clearly, by diverting the fertilizer meant for agriculture use to other use, Hindustan was responsible for evasion of excise duty. In fact, Manglam and IPL could not have foreseen this diversion by Hindustan.
There are no justification to set aside the confiscation of the seized 33 MT of SSP or to set aside the imposition of 50,000/- redemption fine in lieu of confiscation. There are no justification to modify penalty of Rs. 20,000/- under rule 26 imposed on Hindustan by the Commissioner (Appeals).
Appeal allowed.
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2024 (4) TMI 1090 - CESTAT NEW DELHI
Short payment of Excise Duty - clearance of rough marble slabs - less quantity has been shown by the appellant by way of adopting the incorrect formula for converting the quantity of square feet (Sq. Ft.) of rough marble slabs into Square Meter (Sq. Mtr.) - suppression of facts - invocation of Extended period of Limitation - HELD THAT:- The appellant is admittedly a manufacturer of marble slabs out of the marble blocks. Thus it is clear that appellant is converting irregularly shaped rough marbles into the marble slabs of specific length, breadth and width. The area of slabs with specific dimensions can readily be calculated into Square Feet/ Sqr. Meters. However for the rough block/irregular shaped marble it is only the volume in cubic meters which can be ascertained to some extent of precision.
It is appellant’s case that the production quantity of marble slabs has been calculated by adopting the aforesaid option given - it cannot be denied by the reasonable prudence that once a particular volume of marble block will be converted into slabs of different thicknesses, the area in Sq. Ft./Sq. Mtr. For the slab having more thickness will be less. From the given standards it can be judicially noticed that the area for a slab of 16 mm thickness shall be 175 Sq Ft. per ton of the marble whereas for 18 mm Thick slab it will be 165 Sq, Ft. per ton and for 20 mm thickness slab it will be 150 Sq. Ft. per Ton.
There are no basis of the formula as has been impressed upon by ld. D.R. On the contrary the formula admittedly applied by the appellant is the formula as mentioned in the Central Excise Tariff. No evidence is produced by the department to even demonstrate as to how the formula has wrongly been applied. In the absence of the evidence, the said calculation cannot be held to be a wrong calculation.
Extended period of Limitation - the only ground taken for the same is that the right quantity was not mentioned in the ER-1 Returns and had no audit would be conducted the short-payment by the appellant would not have come to the notice of the department - HELD THAT:- It is a matter of fact that all details were available in the records of appellant whatever was mentioned by the appellant in the ER-1 Returns was as per their records maintained by applying the formula given in the Tariff Act. It is opined that the above all mere oral allegations. There is no evidence to prove that the intent of the appellant was to evade duty. Admittedly the appellant as per selfassessment has discharged his duty liability. The returns have also been furnished. It was now for the Department to scrutinize the returns and to ascertain if the service tax had been paid correctly or not.
Mere omission is not sufficient to be called as suppression of facts to invoke the extended period. Department has to prove that the act was deliberate to not to pay or to short pay the duty - there is no evidence for the same - thus, even extended period has wrongly been invoked. Resultantly, the Show Cause Notice itself is barred by time.
The demand under challenge does not sustain on its merits. It also stands hit by the bar of limitation. Hence the demand is held to have wrongly been confirmed. The order under challenge is therefore set aside - Appeal allowed.
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2024 (4) TMI 1089 - CESTAT AHMEDABAD
100% EOU - Clandestine removal - penalty u/r 26(1) of Central Excise Rules, 2002 - entire charge based on the statement of the appellant - retraction of statements - violation of principles of natural justice - HELD THAT:- The adjudicating authority has not whispered anything with regard to the affidavit filed by the appellant. Moreover, in the event of giving affidavit by the appellant, the adjudicating authority should have conducted examination-in-chief in terms of Section 9D of Central Excise Act and thereafter only the statement could have been relied upon as an evidence but the adjudicating authority has neither made any comment on the affidavit filed by appellant nor conducted any examination-in-chief. Therefore, there is a gross violation of principles of natural justice in this case.
Accordingly, the matter needs to be reconsidered, limited to the imposition of penalty under Rule 26 on the present appellant.
The matter is remanded to the Adjudicating authority for passing a fresh order, after compliance of principles of natural justice.
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2024 (4) TMI 1088 - CESTAT KOLKATA
Method of valuation - goods transferred to another unit for captive consumption - to be valued in accordance with Rule 8 of the Valuation Rules or under Rule 4 - revenue neutrality - Extended period of limitation - maintainability of SCN in the absence of challenge of final assessment order.
Whether the appellant has paid the duty correctly in accordance with Rule 8 of the Valuation Rules or the appellant is liable to pay duty in terms of Rule 4 of the Valuation Rules? - HELD THAT:- The Circular No.692/8/2003-CX dated 13.02.2003 clarified the position that the cost of production of captively consumed goods will be done strictly in accordance with CAS-4. Admittedly, in this case also, the appellant has adopted the above said Circular and was paying duty as per CAS-4 in terms of Rule 8 of the Valuation Rules - the fact is further noted that the Circular dated 13.02.2003 on the basis of which the appellant paid the duty is binding on the Revenue as held by the Hon’ble Apex Court in the case of Ratan Melting and Wire Industries [2008 (10) TMI 5 - SUPREME COURT] - thus, the appellant has correctly paid the duty on the goods in question, which has been captively consumed by the sister unit for manufacturing of excisable goods in terms of CBEC Circular No.692/8/2003-CX dated 13.02.2003. On merit, the appellant has rightly paid the duty as per CAS-4 in terms of Rule 8 of the Valuation Rules - thus, Rule 4 of the Valuation Rules, is not applicable in the facts and circumstances of the case.
Whether the extended period of limitation is invokable or not? - HELD THAT:- For the period from April, 2009 to November, 2013, a show-cause notice was issued on 22nd December, 2015 is barred by limitation as the appellant has not suppressed any facts from the Department while paying duty and on finalization of provisional assessment, Therefore, this issue is answered in favour of the appellant.
Whether it is a case of revenue neutrality or not? - HELD THAT:- The appellant is clearing the goods in question to their sister unit, who is entitled to take the cenvat credit itself. In that circumstances , we hold that it is a revenue neutral situation as held by this Tribunal in the case of M/S. HINDALCO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, BHUBANESWAR-II [2023 (5) TMI 720 - CESTAT KOLKATA], wherein this Tribunal has observed as the entire exercise would be revenue neutral, there is no loss of revenue to the exchequer - thus, it is a revenue neutral situation. On this count also, the appellant is not liable to pay differential duty as adjudicated by the adjudicating authority.
Whether in the absence of challenge of final assessment order, a show-cause notice issued to the appellant is maintainable or not? - HELD THAT:- Admittedly, in this case, during the impugned period, the appellant cleared the goods provisionally paying duty and all the provisional assessments have made final and the said final assessments have been accepted by the Revenue. In that circumstances, without challenging the said final assessment, the Revenue cannot proceed to issue of showcause notice to the appellant - the show-cause notice was not required to be issued without challenging the order of final assessment of the provisional assessments.
The demand of duty is not sustainable against the appellant. Consequently, no penalty is imposable on the appellant.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 1087 - CESTAT KOLKATA
Irregular availment CENVAT Credit - ineligible documents - supplementary invoice/debit notes issued by M/s. Tata Steel Ltd. (TSL) - violation of provisions of Rule 3 and Rule 9 of the CENVAT Credit Rules, 2004 during the impugned periods - HELD THAT:- Although the appellant has produced all the documents, it is the finding of the authorities below that they could not correlate the documents for availment of CENVAT Credit on the strength of debit notes issued by M/s. Tata Steel Limited.
In these circumstances, it would be in the interests of justice to remand the matter back to the adjudicating authority with a direction to the adjudicating authority to sit with the representative of the appellant for correlation of the debit notes along with invoices with the certificate issued by M/s. Tata Steel Limited showing that debit notes have been issued to the appellant, on the strength of which the appellant is entitled to take CENVAT Credit.
Matter remanded back to the adjudicating authority for verification of the documents only. The appellant is also directed to approach the adjudicating authority within a period of 15 days from the date of receipt of this Order, who shall sit with the representative of the appellant for correlation.
The appeals are disposed of by way of remand.
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2024 (4) TMI 1086 - CESTAT CHANDIGARH
Refund of excess duty paid under protest - date on which notification came into effect.
Enhancement of duty by N/N. 22/ 2014 dated 12.11.2014 and N/N. 24/2014 dated 02.12.2014 - clearances already effected on the date of the Notifications i.e. 12.11.2014 and 02.12.2014, the invoices issued to the customers on the existing lower rate of duty - Duty paid in the subsequent month at enhanced rate.
HELD THAT:- An identical issue in the appellant’s own case was considered by the Ahmedabad Bench of the CESTAT [2021 (11) TMI 112 - CESTAT AHMEDABAD]. After considering the various decisions of the High Court and the Supreme Court the issue was decided in favour of the appellant by holding From the above provision it is absolutely clear that any notification issued under Sub-section (1) or Sub-section (2A) come into force on a date when it is published and offered for sale on the date of its issue.
The impugned order is not sustainable in law, therefore, the same is set aside by allowing the appeal of the appellant - Appeal allowed.
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2024 (4) TMI 1062 - SUPREME COURT
Validity of order of High Court remanding back the order for re-consideration - Failure of the Department to follow the instructions given by the CESTAT - Doctrine of Merger - Clandestine removal - excess quantities of stock were stored for illicit removal - absence of document containing detailed explanation - HELD THAT:- The direction issued by the tribunal undisputedly has got merged with order dated 27.11.2008 it would be apt and appropriate to note at this juncture itself the contention raised by Shri Shekhar Naphade, learned Senior Counsel which is to the effect that by virtue of the direction issued by the tribunal under its order dated 06.09.2006 having attained finality, the authorities subordinate to the CESTAT having failed to comply with the directions so issued should have resulted in automatic allowing of the appeals by the High Court, though at first blush looks attractive, same cannot be accepted for reasons more than one.
Firstly, the direction so issued by the tribunal on 06.09.2006 included a direction to the respondent to pass orders afresh which had resulted in respondent passing the orders on 21.11.2008 and 27.11.2008 respectively - Secondly, the High Court under the impugned order has itself observed that letter dated 20.01.2001 has not been relied upon by the revenue as an adverse document against the assessee while adjudicating the SCN’s - Thirdly, it has been the consistent stand of the respondent-department that the said letter was in fact supplied to the assessee’s representative and the same has been discussed in threadbare by the High Court under the impugned order.
The High Court has opined and rightly so that the said letter dated 20.01.2001 (with enclosures) which is claimed by the appellant has not having been furnished is only a ruse for not replying to the show cause notices and it would in no way prejudice the appellant’s claim, particularly in the background of reliance not having been placed by the respondent-authority for adjudicating the SCN’s and in the absence of prejudice having been caused to the appellant no fault can be laid at the doors of the respondent.
The High Court has also rightly not remitted the matter to the adjudicating authority for considering the matter afresh and the findings of the High Court recorded under the impugned order, having been affirmed, it is deemed appropriate to reserve the liberty to the appellant to urge all contentions before the tribunal including the one urged before this Court namely to demonstrate as to how prejudice has been caused to the appellant by non-furnishing of the said letter dated 20.01.2001 (with enclosures) and contentions of both parties are kept open and the order of remand made to the tribunal by the High Court under the impugned order would stand affirmed subject to the observations made.
The appeals stand disposed of.
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2024 (4) TMI 1061 - SC ORDER
Maintainability of appeal - low tax effect - Classification of goods - printing of gray wrappers which is used in the packaging of cigarette packs. - Classification under heading 4823.90 or under heading 4901.90 - Manufacturing of goods through job worker - it was held by CESTAT that goods in question are properly classified under heading 4901.90 which attracts NIL rate of duty and no demands of duty can survive against the assessee - HELD THAT:- The Civil Appeals are disposed of, owing to low tax effect keeping open the question of law, if any.
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2024 (4) TMI 1037 - CESTAT KOLKATA
Denial of irregularly availed CENVAT Credit - allegation on the ground that there was no manufacturing facility in factory premises and appellant was engaged only in paper transactions - cross-examination of statement of witnesses not allowed - HELD THAT:- In this case the appellant has intimated suspension of their manufacturing activities vide letter dated 10.07.2008 and thereafter surrendered their registration on 01.08.2008 and whole of the investigation have been started thereafter. Moreover, the appellant has procured inputs from various dealers, manufacturers and suppliers and made payments through account payee cheques and investigation was conducted at their end and no inculpatory statement has been made by the supplier of the goods. Further, the appellant has supplied to various recipients of the goods whose investigation was also conducted at their end - It is also evident on record that whatever Cenvat credit has been taken by the appellant, the appellant has utilized the same for payment of duty on the clearance of the goods and also paid sufficient amount of duty through PLA.
The case of the Revenue is based only on the statements of certain transporters and on assumption and presumption that as no machinery was found at the time of investigation, the appellant was involved only on paper transactions and certain transporters have made inculpatory statements against the appellant - It is found that the transporters were not allowed to be crossexamined by the appellant in terms of section 9D of the Central Excise Act, 1944 which prescribes that to rely on the statement of a witness, the witness has to be tested by recording their statement at the time of adjudication in chief and thereafter to offer for cross-examination which has not been done in this case, therefore, the statement of the transporters which are inculpatory cannot be relied upon in terms of Section 9D of the Act.
The appellant is entitled to take Cenvat credit which has been utilized for payment of duty and the appellant has paid duty through PLA also. In that circumstances, the impugned proceedings are not sustainable - the demand on account of denial of Cenvat Credit is set aside, as the demand against the appellant is not sustainable, therefore, penalty on the appellants are not imposable. Moreover, the appellant No.1 is the proprietor of the appellant No.2, therefore, penalty on both the appellant is also not sustainable in the facts and circumstances of the case.
The impugned demand confirmed and penalty imposed on the appellant are set aside - Appeal allowed.
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2024 (4) TMI 1036 - CESTAT CHENNAI
Exemption for captive consumption - benefit of exemption N/N. 67/95 dated 16.3.1995 - Rectified Spirit - excisable goods or not - covered by the term ‘final product’ or not - HELD THAT:- This Bench has considered almost identical issue, in their own case to hold that the denial of exemption Notification No.67/95 was incorrect, for the reasons discussed therein, by also relying upon an earlier order of Chennai Bench in the case of Sri Ambika Sugars Ltd. [2014 (11) TMI 919 - CESTAT CHENNAI] has held The Tribunal in the case of RAJSHREE SUGARS AND CHEMICALS LTD. AND OTHERS VERSUS COMMISSIONER OF CENTRAL EXCISE, PUDUCHERRY AND OTHERS [2014 (11) TMI 919 - CESTAT CHENNAI] held that the denial of exemption notification 67/95 on molasses captively consumed to manufacture Rectified Spirit & DNA cannot be justified.
The impugned order is set aside - appeal allowed.
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