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Central Excise - Case Laws
Showing 61 to 80 of 80369 Records
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2024 (4) TMI 818 - CESTAT BANGALORE
Invocation of Extended period of Limitation - denial of N/N.12/2012-CE dated 17.03.2012 - Solar Inverters - Combiner Box / Array Guard - PV Logs and parts - HELD THAT:- In the present case, the appellant has challenged the confirmation of demand invoking extended period of limitation advancing the argument that all the facts have been disclosed to the Department through their ER-1 Returns and hence suppression of facts cannot be invoked against them. It is found that the appellants are engaged in the manufacture of parts of Solar Power Generating System viz. Solar Inverters, Combiner Box / Array Guard and PV Logs. But on going through one of the sample ER-1 return, filed with the Department, for the period February 2014, it is found that under the heading ‘Description of Goods’, the item is mentioned as “power”, “ELE”, “Solar”. Thus, there is no correct declaration of the description of the goods mentioned in the ER-1 Returns which have been manufactured and cleared by them by raising invoices mentioning a different description.
The mis-declaration of the description of the goods would invite extended period of limitation in view of the judgment of the Hon’ble Supreme Court in the case of COMMR. OF CEN. EXC. AHMEDABAD VERSUS URMIN PRODUCTS P. LTD. AND OTHERS [2023 (10) TMI 1112 - SUPREME COURT].
The order of the learned Commissioner denying the benefit of exemption under Notification No.12/2012-CE dated 17.03.2012 and confirming the demand invoking extended period has been upheld. However, even though the appellant had deposited the amount in August 2014, which has been appropriated in the impugned order passed in February 2016, the interest liability has not been calculated and mentioned in the order; therefore, the reduction of penalty to 25% as per Section 11AC(1)(c) could not have been availed by the appellant.
Thus, the appellant be given a fair chance by communicating the quantum of interest payable and in the event the appellant discharges the interest amount within 30 days from the date of communication of the amount, the benefit of reduced penalty of 25% under Section 11AC(1)(c) may be extended.
Appeal disposed off.
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2024 (4) TMI 817 - CESTAT NEW DELHI
CENVAT credit of service tax paid - goods transport agency [GTA] service availed for outward transportation of goods on Free on Road [FOR] destination basis from the factory gate or depot of the appellant to the premises of the customers - place of removal - rules 2(l) of the CENVAT Credit Rules, 2004 - HELD THAT:- It is clear from rule 2(l) of the 2004 Rules that w.e.f. 01.03.2008, ‘input service’ means any service used by a manufacturer, directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal - The word ‘place of removal’, therefore, assume importance. According to the appellant, the ‘place of removal’ will be the premises of the buyers as the sale is on FOR destination basis, while according to the department the ‘place of removal’ would be the factory gate of the appellant.
The ‘input service’ would mean any service used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the ‘place of removal’ and ‘place of removal’ would be a depot or any other place of premises from where the excisable goods are to be sold after the clearance from the factory - prior to 11.07.2014 it was section 4(3)(c) of the Central Excise Act that defined ‘place of removal’ and w.e.f. 11.07.2014 rule 2(qa) of the 2004 Rules itself defines ‘place of removal’.
A perusal of the aforesaid judgment of the Supreme Court in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] would indicate that the Supreme Court did not lay down the principles for ascertaining the ‘place of removal’ in the context of admissibility of CENVAT credit on GTA services and the judgment only dealt with the change brought about by the amendment made in rule 2(l) of the 2004 Rules on 01.03.2008.
In COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. [2015 (4) TMI 857 - SUPREME COURT], the Supreme Court noticed that the ‘place of removal’ becomes a determinative factor for the purpose of valuation and it has to be seen at what point of time sale is effected, namely whether it is on the factory gate or a later point of time when the delivery of goods is effected to the buyer at the premises of the buyer. The Supreme Court observed that the charges which are to be added have to be upto the stage of transfer of the ownership in as much as once the ownership in goods stands transferred to the buyer, any expenditure incurred, thereafter, has to be on the account of the buyer and cannot be a component which would be included while ascertaining the valuation of goods.
It is not possible to accept the contention of the learned authorised representative of the department that sale value is included in the case of FOR sale, but it cannot be presumed that it will also result in availment of CENVAT credit since ‘place of removal’ was not defined in the 2004 Rules till 11.07.2014. Prior to 11.07.2014, ‘place of removal’ was defined in section 4(3)(c) of the Central Excise Act, which definition would be applicable to the 2004 Rules by virtue of rule 2(t) of the 2004 Rules. With effect from 11.07.2014, ‘place of removal’ has been defined in the 2004 Rules.
Thus, it has to be held that the appellant would be entitled to avail CENVAT credit of the service tax paid on GTA service from the factory or the depot of the appellant to the premises of the buyers since the sales are on FOR basis.
The order passed by the Commissioner (Appeals), therefore, cannot be sustained and is set aside. The appellant would be entitled to avail CENVAT credit - appeal allowed.
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2024 (4) TMI 816 - CESTAT NEW DELHI
CENVAT Credit - common input services used for the exempted goods, namely electricity cleared from the manufactory of the Appellant - CENVAT Credit availed on common input services used for exempted services alleged to be Trading of goods, but claimed to have cleared inputs as such - Extended period of limitation - Interest - penalty.
Whether the computation of demand of the amount of Rs.97,01,260/- on account of CENVAT Credit availed on common input services used for the exempted goods, namely electricity cleared from the manufactory of the Appellant is correct? - HELD THAT:- The Appellant in this case has been paying the amount of CENVAT Credit as was arrived by them by application of the formula prescribed under Rule 6 (3A) of the CENVAT Credit Rules in terms of the option exercised by them - the appellant has never submitted data of the electricity duly certified by the Chartered Accountant despite having many opportunities, which finds mention in the findings of the adjudicating authority.
However, the issue whether the figures taken by the Department standalone Balance-sheet pertaining to Godawari Power and Ispat Ltd, do not require verification at the original stage. In view of the emphatic submissions made, this matter requires reconsideration at the original stage and needs to be remanded.
Whether the demand of the amount of Rs 83,62,788/- on account of CENVAT Credit availed on common input services used for exempted services alleged to be Trading of goods, but claimed to have cleared inputs as such is correct? - HELD THAT:- The profit earned out of such clearances, alleged to be trading, and common use of the input services has not been controverted in any manner by the ld. Counsel of the appellant. Therefore, these are triggers to decide this issue as to whether the clearances by earn of substantial profit would remain within the ambit of “inputs cleared as such” under Rule 3(5) or would it be tantamount to the “trading of the goods”, besides use of common input services.
The appellant has reversed the Cenvat Credit on these goods which they had traded. In view of the said factual position, it is directed that the amount so reversed is liable to be appropriated against the demand. Accordingly this matter remanded to the original authority to recalculate the differential demand taking due note of the CENVAT credit which is already reversed.
Whether the aforesaid demands are correct and justified in involving the extended period of limitation? - suppression of facts or not - HELD THAT:- It is settled principle in law that existence of ingredients leading to invocation of extended period of limitation is a “question of the fact” and the facts of the case in hand will determine whether the extended period of limitation could have been invoked, unlike the “question of law” where the determination can be made on the basis of the available judicial precedents - the appellant succeeded in suppressing critical information from scrutiny. Hence the extended period is rightly invokable in the case.
Penalty - HELD THAT:- Since it is established, that appellant had suppressed the material facts and misstated with intent to evade payment of amount of Cenvat credit, the penalty under Section 11AC shall be natural consequence as has been held by Hon’ble Supreme Court in case of UNION OF INDIA VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS AND COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE VERSUS M/S. LANCO INDUSTRIES LTD. [2009 (5) TMI 15 - SUPREME COURT]. The Apex court held the application of Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of Section 11A.
Interest liability for delayed payment of amount of CENVAT credit - HELD THAT:- The interest liability for delayed payment of amount of CENVAT credit also cannot be disputed. Appellant has not paid the amount, payable by them as per admitted position under Rule 6 (3A) on the exempted goods cleared by them by the due date and hence demand of interest on the delayed payment is justified.
The appeal is allowed partially and also by way of remand.
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2024 (4) TMI 785 - GUJARAT HIGH COURT
CENVAT Credit - inputs - denial on the ground that the use of such goods for repair and maintenance of plant and machinery by the respondent assessee cannot be considered to have been used “in or in relation to the manufacture of final products”, as they are not used coextensively in the process of manufacturing of the petroleum products by the respondent assessee - HELD THAT:- Considering the fact that the Tribunal has relied upon the decision in the respondent assessee’s own case, as well as in view of the fact that now the issue is no more res-integra in view of the decision of the Hon’ble Supreme Court in case of Kisan Co-operative Sugar Factory Ltd. [2023 (12) TMI 1303 - SUPREME COURT] wherein the Hon’ble Apex Court has held that the interpretation of the expression “used in or in relation to manufacture” is of a very wide import and takes within its scope and ambit all items used in the process of manufacture whether directly or indirectly and whether contained in the final product or not. The items used for maintenance of plant and machinery are also items used in the manufacture of finished goods. Hence, credit on the items used for maintenance, repair, upkeep or fabrication of plant and machinery are admissible to the assessees.
Entitlement on the Cenvat credit on the M/s. Gratings/G.I. Coated Gratings - HELD THAT:- In view of the observation made by the Tribunal in [2020 (2) TMI 749 - CESTAT AHMEDABAD] it is observed that the M.S. Gratings were used as accessory for supporting and holding for approaching how to plant and processing units of refinery and platforms for approaching or reaching out the plant is part and parcel of the entire plant and machinery particularly in large scale manufacturing unit, without which the operation of the plant is not possible. It was therefore held by the Tribunal that, therefore the M.S. Gratings used as accessory in such structure is used in relation to the manufacture of final product - the Tribunal has not committed any error in following a Coordinate Bench’s decision in the case of the respondent assessee itself.
There is no error committed by the Tribunal giving rise to any question of law, much less any substantial question of law arising from the impugned order - Appeal dismissed.
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2024 (4) TMI 784 - CESTAT MUMBAI
CENVAT Credit - inputs and input services - disallowance of entire cenvat credit availed by the appellant on the inputs and input services utilized in the manufacture of goods on which central excise duty was paid and ER-1 returns were filed - HELD THAT:- Revenue has unilaterally come to a conclusion without assigning any justification through the said show cause notice as to how the appellant was required to clear the goods under full exemption under serial No. 47A of N/N. 04/2006-CE dated 01.03.2006. As per the provisions of law, Revenue should have issued the appellant with a show cause notice calling upon them to show cause as to why they should not clear the goods at nil rate of duty applying the provisions at serial No. 47A ibid. Such proceedings would have given complete opportunity to the appellant to explain as to why the said serial number of the said notification was not applicable to the appellant.
Without giving any opportunity to the appellant to present their defence on the contention of Revenue that the appellant should have cleared the goods availing full exemption, Revenue has unilaterally decided that the said serial number of the said notification was applicable to the appellant.
These present proceedings are not sustainable - the impugned order is set aside - appeal allowed.
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2024 (4) TMI 722 - CESTAT NEW DELHI
Invocation of Extended period of limitation - contravention of provision of rule 9(1)(f) of CCR - Levy of penalty u/r 15(3) of CCR - HELD THAT:- The Commissioner (Appeals) has also not recorded any specific reasons of invoking the extended period of limitation - only reason given in the show cause notice for invoking extended period of limitation is that the appellant had contravened the provision of rule 9(1)(f) of CCR.
It has been presumed that CENVAT credit was availed by the appellant with intention to increase its CENVAT balance with the logical consequence of non-payment of duty in cash and with intent to evade payment of duty. It is a well settled legal position that all show cause notices can be issued only within the normal period of limitation. To invoke extended period one of the aggravating factors necessary must be established. In this case, the only reason for invoking extended period of limitation given in the show cause notice was that the appellant had availed CENVAT credit on the strength of ineligible documents in violation of Rule 9(1)(f) of CCR. The intention to evade payment has been presumed. The impugned orders and the OIO also do not indicate, let alone establish, the existence of any of the five aggravating factors.
As the show cause notice was time barred and consequently the impugned orders which affirm the proposals in the show cause notice cannot be sustained and need to be set aside - Appeal allowed.
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2024 (4) TMI 721 - CESTAT KOLKATA
Clandestine Removal - corroborative evidences or not - entire demand has been raised on the basis of three private unauthenticated seized documents from the office of M/s. EFPL - penalty - HELD THAT:- Although it is the claim of the Revenue that truck numbers are mentioned on the said documents which were involved in clandestine removal of goods, no investigation was conducted with regard to the truck owners or drivers to find out as to whether those vehicles were used by the appellant for clandestine removal of the goods, in support of the allegation of clandestine clearance.
Further, no evidence has been produced by the Revenue with regard to excess purchase and payment thereof. No evidence in the form of excess consumption of electricity was brought on record. Moreover, no payment for clandestine removal of the goods by illicit means has been brought on record. Mere documents recovered from the premises of a third party cannot be the basis to allege clandestine removal of goods - Moreover, it has not been ascertained as to who was maintaining those documents and who had kept these documents in the premises of M/s. EFPL.
Therefore, the Revenue has failed to establish their case of clandestine removal of the goods in question, particularly in view of the decision in the case of M/S. CONTINENTAL CEMENT COMPANY VERSUS UNION OF INDIA & OTHERS [2014 (9) TMI 243 - ALLAHABAD HIGH COURT] wherein the Hon’ble High Court of Allahabad has observed we are of the opinion that when there is no extra consumption of electricity, purchase of raw materials and transportation payment, then manufacturing of extra goods is not possible. No purchase of raw material out side the books have been proved.
Penalty - HELD THAT:- As there is no corroborative evidence available on record in support of the charge of clandestine removal of the goods, the demand of Central Excise Duty is not sustainable against the appellant. As the demand of duty is not sustainable, consequently, no penalty can be imposed on the appellants.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 672 - MADHYA PRADESH HIGH COURT
Appropriate forum - Maintainability of appeal u/s 35(H) of the Central Excise Act, 1944 - determination of question relating to rate of duty or excise or to the value of goods for the purpose of assessment - HELD THAT:- The appeal would not be maintainable before this Court. However, the appellant would be at liberty to assail the order by filing an appeal u/s 35(L) of the Act of 1944 before the Apex Court. However, on filing of the photocopy of the original documents, the certified copy of the original documents, if any, be returned to the learned counsel for the appellant.
Appeal disposed off.
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2024 (4) TMI 671 - CESTAT BANGALORE
Recovery of CENVAT Credit alongwith interest and penalty - input - goods used in the fabrication of various machineries, support structures, platforms for machineries and equipments etc. used in the factory - HELD THAT:- Undisputedly, the appellants during the relevant period used the aforesaid inputs in their factory in the fabrication / manufacture of various equipments, machineries, plants etc. and support structures holding the capital goods. The learned Commissioner in the impugned order following the judgment of the Larger Bench of this Tribunal in VANDANA GLOBAL LTD. VERSUS CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] decided the issue against the appellants holding that credit is not admissible on the aforesaid inputs used in the fabrication of various capital items.
The impugned orders are devoid of merit and accordingly the same are set aside - Appeal allowed.
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2024 (4) TMI 670 - CESTAT ALLAHABAD
CENVAT Credit - input service - hiring of aircraft - services were used for furtherance of cost of the business of manufacture of the goods or not - HELD THAT:- The definition of the input service is wide enough to cover all the services received by the appellant as input services without being directly used in the process of manufacture. If it is establish that the services were used by the manufacturer for the production of the finished goods which is one of the criteria to credit could not have been denied. In the present case, Commissioner (Appeals) have concluded that charter services were raised for transportation of the senior executive officials of the company for attending the business meeting in relation of the manufacture and sale of finished goods.
In case of MANGALORE REFINERY AND PETROCHEMICALS LTD VERSUS COMMISSIONER OF CENTRAL EXCISE & CENTRAL TAX, MANGALORE COMMISSIONERATE [2021 (6) TMI 715 - CESTAT BANGALORE], the Bangalore bench has held as far as air travel charges are concerned, the same has been used for the purpose of business trips undertaken by the company officials/guests for business related purposes and the same has been held to be input service.
There are no reason to differ with the findings recorded in the impugned order by Appellate Authority and the same is upheld - appeal dismissed.
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2024 (4) TMI 626 - CESTAT CHENNAI
CENVAT Credit - capital goods - Immovable Property or not - fabrication and setting up of entire paint shop - entire demand has been quantified on the basis of the figures taken from the books of accounts maintained by the appellant - suppression of facts or not - Extended period of Limitation- HELD THAT:- The department instead of analyzing whether these items fall under the category of capital goods and eligible for credit has analysed whether the paint shop as assembled at site is an excisable goods. The appellant has not availed credit on ‘paint shop’. They have availed credit on various machinery, parts, and components which have been used to set up paint shop. Some structural items falling under Chapter 73 have also been used for the fabrication and setting up of entire paint shop which is integral to carry out the activity of painting of cars. The department does not have a case that the items do not fall under 84, 85 of Central Excise Tariff Act 1985.
In the case of M/s. HYUNDAI MOTOR INDIA LTD. VERSUS CCE & ST LTU CHENNAI AND VICA-VERSA [2015 (12) TMI 940 - CESTAT CHENNAI] the Tribunal considered the issue of availment of cenvat credit on items used for setting up paint shop and held that credit is eligible. In the case of M/S OMAX AUTO LIMITED VERSUS CCE, DELHI-III [2013 (8) TMI 301 - CESTAT NEW DELHI] it was held that structures used in paint complex which is an integral part of the manufacture of motor vehicles used in the fabrication of paint complex is eligible for credit.
The denial of credit is on the basis of erroneous appreciation of facts and law. The issue on merits is answered in favor of assessee.
Extended period of limitation - Suppression of facts or not - HELD THAT:- The demand has been raised on the basis of figures as reflected in the books of accounts maintained by the appellant. There is no positive act of suppression established by the department against the appellant. In the case of PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [1995 (3) TMI 100 - SUPREME COURT] the Hon’ble Supreme Court while considering the issue of invocation of extended period observed that when facts are known to both sides there is no ground to invoke the extended period - there is no ground to invoke the extended period. The SCN is time barred. The issue on limitation is answered in favour of the appellant.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 625 - CESTAT BANGALORE
Recovery of duty with interest and penalty - wrongfully claiming benefit of exemption under Sl.No.84 of N/N. 6/2006-CE dt. 01/03/2006 (for the period December 2009 to 15/03/2012) and under Sl.No.332 of N/N. 12/2012-CE dt. 17/03/2012 - case of Revenue is that since pole shoe is a part of rotor being not used inside the factory for manufacture of WOEG, benefit of notification is not admissible - Extended period of Limitation - HELD THAT:- Analysing the relevant entries finally the learned Commissioner has observed that rotor and controller are items which are distinctly different from the generator being located outside the generator which are essential for generation of electricity; hence covered under Sl.No.13 of List 5/8 whereas ‘pole shoe’ on the other hand is a part of the generator rotor assembly which rotates inside the generator stator assembly and converts mechanical energy into electrical energy resulting into generation of electricity.
There are merit in the observation of the learned Commissioner which is based on technical opinion and also the detailed study of the manufacturing process of ‘pole shoe’ and its ultimate use in the generator which has not been contradicted in any manner by the Revenue in the grounds of appeal. The Revenue in the grounds of appeal has simply stated the pole sole is part of rotor which in turn parts of the WOEG, implies that any part of the parts of the WOEG is covered under Sl.No.21 of the said list and not sr. no. 13 of the said List 5/8 of the Notification.
There is a fallacy in the approach of the Revenue in appreciating the facts, inasmuch as the ‘rotor assembly’ used inside the WOEG is different from the ‘rotors’ which is placed outside the generator, but an essential part of the wind mill and accordingly allowed exemption - ‘pole shoe’ being part of the rotor assembly which in turn used in the generator and a part of the WOEG, hence squarely covered by the N/N. 6/2006CE dated 01.3.2006 and No.12/2012CE dt 17.3.2012.
The Judgement cited by the learned AR for the Revenue viz. Raydean Industries case [2022 (4) TMI 1155 - CESTAT NEW DELHI] is on different set of facts and hence not applicable to the present case. In the said case, the issue involved was whether module mounting structures be part of the Sl.No.10 i.e. “Solar power generating system” of List 8 of the said Notification 12/2012CE dt. 17.3.2012. After analysing the facts, the Tribunal concluded that there is a difference between device and system and upholding the finding of the Commissioner, held that module mounting structure is a part of solar power generating system, hence not covered under the said entry.
There are no merit in the appeal filed by the Revenue. Consequently, the impugned order is upheld and the Revenue’s appeal being devoid of merit is liable for dismissal - appeal of Revenue dismissed.
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2024 (4) TMI 624 - CESTAT CHANDIGARH
Requirement of reversal of CENVAT Credit - inputs used in the manufacture of dutiable and exempted goods exported - non-maintenance of separate records of receipt and consumption of inputs of dutiable and exempted goods - Rule (6) of Cenvat Credit Rules - HELD THAT:- This issue has already been considered by the jurisdictional High Court of Himachal Pradesh in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS DRISH SHOES LTD. [2010 (5) TMI 334 - HIMACHAL PRADESH HIGH COURT] wherein also the Hon’ble High Court after relying upon the decisions of the Bombay High Court in the case of REPRO INDIA LTD. VERSUS UNION OF INDIA [2007 (12) TMI 209 - BOMBAY HIGH COURT] has held an assessee, manufacturing goods chargeable to nil duty, is eligible to avail CENVAT credit paid on the inputs under the exception clause to Rule 6(1), as contained in Rule 6(5) of CENVAT Credit Rules, 2002 and Rule 6(6) of CENVAT Credit Rules, 2004, used in the manufacture of such goods, if the goods are exported.
There is no infirmity in the impugned order passed by the Ld. Commissioner which is upheld by dismissing the appeal filed by the Revenue - appeal is dismissed.
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2024 (4) TMI 623 - CESTAT BANGALORE
CENVAT Credit - capital goods or not - various items, used for fabrication / erection of various plants as a part of the Phase III expansion project on lumpsum key basis - invocation of Extended Period of Limitation - HELD THAT:- The issue in question has been considered by Chandigarh Bench of this Tribunal in the case of INDIAN OIL CORPORATION LTD. VERSUS COMMISSIONER OF C. EX. & S.T, PANCHKULA [2020 (1) TMI 373 - CESTAT CHANDIGARH]. The facts are more or less similar to the present one inasmuch as the assesse therein are manufacturers of petroleum products falling under Chapter 27 of CETA, 1985. They have availed cenvat credit during July 2007 to March 2012 in respect of various items of capital goods received by them for erection, installation and commissioning of Nephtha Cracker Plant by entering into composite lumpsum turnkey contract with different contractors. Alleging that the assessee is not eligible to avail credit on capital goods in respect of various items of machinery and equipments, instruments falling under Chapter 84, 89 and 90 CETA, 1985 since after fixing of these capital items to the plants fixed become immovable and accordingly non-excisable. The Tribunal had observed that For capital goods Cenvat credit, the items must be among those mentioned in this Rule and should have been used in the factory of the manufacturer and how the items are not used relevant. The words used in Rule 2(a) are “used in the factory of manufacturer of the final product” not “used in the manufacture of final product”. Therefore, once any item received in the factory is “capital goods” in terms of Rule 2(a) of the Cenvat Credit Rules, and is used in the factory, the manufacturer would be entitled to Cenvat credit of excise duty paid in respect of the same.
In the appellant’s own case MANGALORE REFINERY AND PETROCHEMICALS LIMITED VERSUS C.C.E. & S.T., MANGALORE [2023 (8) TMI 696 - CESTAT BANGALORE], this Tribunal has already taken a view that merely because the items are used for fabrication in the erection of storage tank which affixed to earth and become immovable property, cenvat credit availed on individual items cannot be denied being capital goods as defined under Rule 2(a) of the CCR, 2004 following the judgment of the jurisdictional High Court in the case of COMMISSIONER OF C. EX., MYSORE VERSUS ICL SUGARS LTD. [2011 (4) TMI 1065 - KARNATAKA HIGH COURT] and other judgments on the subject including the judgment of the Hon’ble Chhattisgarh High Court in the case of M/S VANDANA GLOBAL LIMITED AND OTHERS VERSUS COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, CENTRAL EXCISE [2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT].
There are no merits in the impugned order - appeal allowed.
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2024 (4) TMI 531 - SC ORDER
Valuation - inclusion of incentive/industrial subsidy of 75% of Sales Tax/VAT/CST paid on the sale of goods, received from the Government of Madhya Pradesh under the Industrial Promotion Policy, 2010 in the transaction value under section 4 of the Central Excise Act, 1944 or not - it was held by CESTAT that the contention of the learned counsel for the appellant that incentive/capital subsidy received from the State Government cannot be included in the transaction value has to be accepted - HELD THAT:- There are no merit in this appeal.
The civil appeal stands dismissed.
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2024 (4) TMI 470 - SC ORDER
Amendment in cause title - Valuation - whether or not the amounts collected by the appellants as Sales Tax from the customers but not paid to the State Sales Tax authorities should be included in the assessable value for the purpose of levy of Central Excise duty - HELD THAT:- M/s.Tata Steel Limited does not have any objection in respect of the application moved for amendment of cause title registered as I.A. No. 39029/2024 and therefore, the said application is allowed.
Application allowed.
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2024 (4) TMI 469 - CESTAT NEW DELHI
Process amounting to manufacture or not - re-packing of various excisable goods (herbal and cosmetic products), affixing the brand names owned by them in their premises - Illegality of duty liability under Section 4 of the Excise Act - HELD THAT:- This Tribunal in M/S WWS SKY SHOP (P) LTD. VERSUS CCE, INDORE [2018 (1) TMI 1734 - CESTAT NEW DELHI], while relying upon Board’s Circular No. 354/285/2011-TRU dated 08.12.2011 has already held that since there is no value addition made by the appellant after receiving the goods from the respective manufacturers till the time these are sold to the consumers that the activity done by the appellant does no amount to manufacture.
The bare perusal makes it clear that as per Section 4, the duty of excise on excisable goods has to be assessed including the price actually paid to the manufacturer for the goods sold and the money value of additional consideration, if any, following directly or indirectly from the buyer to the assessee in connection with the sale of such goods. Thus, this section is applicable only qua the person who is the manufacturer of the goods and charges something extra for some additional activity done prior the sale of the goods manufactured by him. It is already confirmed on record that the activity done by the appellant does not amount to manufacture. It has also been held and confirmed that appellant is not the manufacturer of the goods sold by him - irrespective the method of how those products are manufactured by the manufacturer, the activity done by the appellant before putting those products to the actual consumers are not held to be the activity of manufacture. The question of the activity of the appellant to be excisable does not at all arise. Nothing additional is brought on record to have the different opinion. Hence, these findings are affirmed. Hence, even for sake of Section 4, the value for the appellant’s activity cannot be included in the value of the excisable goods.
Otherwise also, the duty liability on excisable goods is that of the manufacturer. It is an admitted fact on record that the manufacturer i.e. M/s. Davo Laboratories nor M/s. Balchem Laboratories are authorized have discharged their respective eligible liability. No question for sustaining the demand even under Section 4 at all arises.
Though the department has relied upon the decision in M/s. Davo Laboratories own case in a departmental appeal titled as Commissioner of Central Excise, Bhopal Vs. Davo Laboratories [2016 (11) TMI 7 - CESTAT NEW DELHI], wherein the Ayurvedic Preparations Roop amrit and Complete Solutions are denied to be considered as Ayurvedic medicines on the ground that both the products are most commonly used for enhancing personal appearance and beauty i.e. cosmetic. The said decision is not applicable as far as duty liability on these products qua the appellant under Section 4 of Central Excise Act is concerned.
The demand confirmed even under Section 4 of Central excise Act, 1944 set aside - appeal allowed.
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2024 (4) TMI 468 - CESTAT HYDERABAD
CENVAT Credit - inputs or not - MS angles, shapes, sections and channels etc., used for erection of “Unipoles”/hoardings which are fixed to the earth and on which the appellant/assessee displays advertisement - HELD THAT:- The issue herein is squarely covered by the precedent order in appellant’s own case of this Tribunal in M/S UNI ADS LTD VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, HYDERABAD – II (VICE-VERSA) [2019 (8) TMI 70 - CESTAT HYDERABAD], wherein similar dispute has been held in favour of the appellant and against the Revenue. It is further found that the exclusion clause in Explanation (2) of Rule 2(k) of CCR was introduced w.e.f. 07.07.2009, vide Notification No. 16/2009- CE.
From plain reading of the exclusion clause, it is evident that exclusion is applicable in case of a manufacturer having a factory and such exclusion is not applicable in the case of the appellant who is a provider of output services.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 428 - SC ORDER
Quantum of computation/the cum-duty price - Interpretation of Notification No.02/2006 dated 01.03.2006, as amended by the Notification No.16/2006 dated 11.07.2006, thereby superseding notification no. 13/2002 dated 01.03.2002 - HELD THAT:- Parties are directed to appear before the CESTAT, Ahmedabad on 02.05.2024, when a date of hearing will be fixed.
The review petitions are allowed and disposed of.
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2024 (4) TMI 427 - CESTAT AHMEDABAD
Clandestine Removal - requirement of cross-examination of witnesses - entire case was made out on the basis of the printout taken from the computer lying in the factory premises and the statements of the various persons - Section 36B of the Central Excise Act - HELD THAT:- From the plain reading of the Section 9D, it can be seen that it is not the whims of the Adjudicating authority to allow or reject the request of cross-examination.
As per the above statutory provision, if the appellant dispute the statements which are relied upon for adjudication it is incumbent on the adjudicating authority to allow the cross-examination of the witnesses and thereafter if the outcome of cross-examination is in consistence with the statement given by the witnesses, the same can be admitted as evidence. Therefore, the cross-examination is necessary for arriving at a fair trial of the case.
The impugned order set aside - appeals are allowed by way of remand to the adjudicating authority, for passing a fresh order, after allowing the cross-examination of the witnesses and considering the further submission to be made by the appellant.
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