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Central Excise - Case Laws
Showing 101 to 120 of 81317 Records
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2024 (11) TMI 54
Exemption to new Industrial Undertakings / Units - Obtaining fresh license by the respondent after ban was lifted - Establishment of new industry or not - entitlement for benefit of Notification dated 25.04.2007 - old wood-based plywood industry, functioning at Jeypore prior to the ban imposed by the Apex Court.
Whether Hon’ble CESTAT has erred in law in holding that obtaining fresh license by the respondent after ban was lifted by the Hon’ble Supreme Court on the basis of the report of the High Power Committee amounts to establishment of new industry and entitled to benefit of Notification dated 25.04.2007? - HELD THAT:- From a bare perusal of the order of the CESTAT it is more than clear that the CESTAT has not held that the respondent has obtained a fresh licence after the ban had been lifted by the Hon’ble Supreme Court on the basis of the report of the High Power Committee and, therefore, is entitled to benefit of the Notification dated 25.04.2007. In such circumstances, the substantial question of Law as framed by this Court is factually incorrect.
Whether the findings of the LD Tribunal is perverse in holding the newly established industry, whereas admittedly ‘M/s Sarda Plywood Industries Ltd, Jeypore is an old wood-based plywood industry, functioning at Jeypore prior to the ban imposed by the Apex Court? - HELD THAT:- It cannot be held that the finding recorded by the CESTAT to the effect that the respondent has established a new industrial unit is perverse. The Assistant Commissioner and the Commissioner (Appeals) as well as the CESTAT have recorded their findings after taking into consideration the materials, which suggest that the respondent has established a new industrial unit, although on the same site. The Revenue has failed to produce any evidence contrary to the findings arrived at by the Assistant Commissioner and the Commissioner (Appeals) as well as the CESTAT, or in support of its stand that the respondent has not set up a new factory but has only renovated its old factory.
The materials available on record reveal that the Assistant Commissioner, after visiting the respondent factory and after inspecting the documents, recorded a specific finding that the respondent unit is a new industrial unit which commenced commercial production after 01.04.2007. Apparently, the said finding of fact is based on the material and has rightly not been interfered with by the Commissioner (Appeals) as well as by the CESTAT.
Thus, no substantial question of law arises in the present appeal. Hence, the appeal is dismissed.
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2024 (11) TMI 53
Eligibility for waiver of penalty imposed under Rule 26 of CER on co-noticees - in the case of the main party i.e. Komal Atomizer P Ltd the case has been settled under SVLDRS-2019 - contrary judgements on the issue - HELD THAT:- It is found that though there are contrary judgment on the issue that whether the co-noticee is eligible for waiver of penalty in case where the main party’s case has been settled under SVLDRS-2019. However, there are some judgments given by Single Member Bench and as regard the judgment on the same issue given by the Division Bench which are in favour of the assessee.
Hence, the division bench judgment in the case of M/s. Siemens Ltd [2023 (5) TMI 377 - CESTAT MUMBAI] will prevail over single member bench judgment, following the same the penalty is liable to be set aside. Hence, the same is set aside.
Appeal is allowed.
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2024 (11) TMI 52
Recovery of duty of central excise under section 11A of Central Excise Act, 1944, along with applicable interest and penalty - additional consideration for sale of manufactured goods - remission of the ‘net present value (NPV)’ of the accumulated amount as full and satisfactory compliance with the dues - inclusion of difference between the amount collected and the ‘net present value (NAV)’, computed with the date of schedule payments as benchmark, in the assessable value - HELD THAT:- The issue stood covered by the decision of the Tribunal in COMMISSIONER OF CENTRAL EXCISE, RAIGAD, BALKRISHNA INDUSTRIES LTD., ESSEL PROPACK LTD. VERSUS UTTAM GALVA STEELS LTD., BHUSHAN STEEL LTD., JSW ISPAT STEEL LTD., COMMISSIONER OF CENTRAL EXCISE, AURANGABAD [2015 (10) TMI 1727 - CESTAT MUMBAI] which, in identical circumstances of dispute of another similarly situated automotive parts manufacturer, RATIONAL ENGINEERS PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE – I [2023 (11) TMI 363 - CESTAT MUMBAI] was considered. It is found that the issue did come up in the above referred dispute and it was held therein that 'Among the terms actually paid or actually payable used in transaction value, actually paid is not relevant in the present set of appeals. What is relevant is actually payable . Actually payable at the time of clearance is the deferral sales tax. Thus, in our view, the amount of deferral sales tax will require to be excluded.'
It was further held that 'the actual amount paid is equal to NPV (which is less than originally payable), cannot make the amount actually payable at the time and place of removal different, particularly when under Sales Tax Law such a payment is considered as deemed payment of the sales tax payable. Quantum of sales tax payable does not change in the above scheme of pre-payment.'
In view of the decisions of the Tribunal, deciding on the dispute arising from the peculiar features of the said scheme of the Government of Maharashtra, the impugned order set aside - appeal allowed.
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2024 (11) TMI 51
Levy of education cess and secondary and higher education cess on automobile cess - HELD THAT:- It is an admitted position that the automobile cess is not levied under the Finance Act and the same is levied under Section 9(1) of the Industries (Development Regulation) Act, 1951 read with Rule 2 (c) of the Automobile Cess Rules, 1984 whereas the education cess and secondary and higher education cess are levied by the Ministry of Finance. Further, we find that this has been clarified vide Circular No. 978/2/2014-CX dated 07.01.2014 wherein, it has been clarified that education cess shall be levied only on such duties of excise/customs which are both levied as well as collected by the Department of Revenue.
This issue has been considered by the Tribunal in the case of TAFE LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MADURAI [2007 (11) TMI 35 - CESTAT, CHENNAI], wherein it has been held 'Education cess under Section 93 of the Finance Act, 2004 is one levied as a duty of excise at the prescribed rate, on the aggregate of all duties of excise which are levied and collected by the Central Govt in the Ministry of Finance (Department of Revenue) under the provisions of the Central Excise Act or under any other law for the time being in force. Automobile cess was not levied by the Central Govt. in the Ministry of Finance (Department of Revenue), though collected by officers of that department. Hence no Education cess is liable to be demanded as a percentage of automobile cess.'
Thus, the impugned order is not sustainable in law and therefore the same is set aside.
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2024 (11) TMI 7
Violation of principles of natural justice - High court has not applied its mind to the contentions raised by the appellant - HELD THAT:- It is found from the perusal of the impugned judgment that the High court has not applied its mind to the contentions raised by the appellant. Only two paragraphs of the impugned order of the Customs Excise & Service Tax Appellate Tribunal (CESTAT) have been reproduced and it is recorded in one sentence that the conclusions of CESTAT are correct.
The impugned judgment is set aside and Appeal No.37 of 2018 is restored to the file of the Delhi High Court. The appeal shall be listed before the Roaster Bench on 25th November, 2024 in the morning when parties to this appeal shall remain present. On that day, the High Court shall fix a date for hearing of the appeal.
Appeal allowed in part.
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2024 (11) TMI 6
Reversal of CENVAT Credit - denial of benefit of notification no. 30/2004-CE - non-reporting and non-disclosure of discontinuation of duty liability on finished products - HELD THAT:- It is not in dispute that the appellant had cleared all final product by availing exemption in the impugned notification and that such exemption is not available in the event that CENVAT credit had been taken on the inputs used in the manufacture of the finished products. As duty liability had been discharged on the intermediate product, the entitlement to avail credit thereof could not be denied and, to the extent that such credit was utilized for clearance of the intermediate product, there is no provision in law which enables recovery of duty thereof.
The denial of exemption notification, and consequent recovery of duty, is premised on credit having been taken even though the goods involved were allegedly used in the manufacture of finished products that were exempted. It is the claim of the appellant that these were actually used in the manufacture of intermediate product that was duty paid and hence eligible to be availed as credit. Without going into the technicalities and on the averment that the disputed credit had been reversed, in conjunction with the decision of the Hon’ble High Court of Allahabad in HELLO MINERAL WATER P. LTD. VERSUS COMMISSIONER OF C. EX., NOIDA [2003 (10) TMI 416 - CESTAT, NEW DELHI] holding that 'the order of the Tribunal dated 1-10-2003 in so far as it relates to denial of the benefit of Notification No. 15/1994-CE is liable to be, and is hereby, set aside. The petitioner is thus entitled to the benefit of the said Notification No. 15/1994-CE, dated 1-3-2004 and reversal of Modvat credit on the inputs namely PVC granules used in the manufacture of PVC/PP bottles, which have been admittedly reversed by the petitioner, even though after clearance of the final product.’ - thus, the continuation of the detriment to the appellants does not sustain.
The impugned order is set aside and the appeals are allowed.
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2024 (11) TMI 5
Legality of remanding the matter to the original authority - legal authority of Commissioner (Appeals) to remand the matter during the relevant period - HELD THAT:- A perusal of the impugned order and the appeal filed before the Commissioner (Appeals) by the appellant in Form-4 shows that the learned authorised representative for the Revenue is correct in her averment. The Commissioner (Appeals), however, also examined this question of deposit of service tax interest. He remarked in paragraph 7 that no mention of the amount claimed and deposited by the appellant was in the order-in-original and, therefore, if the amount had already been deposited and such challans were produced, the service tax already deposited may be adjusted against the demand.
Learned counsel for the appellant misunderstood this remark in the impugned order by the Commissioner (Appeals) to mean that the Commissioner (Appeals) has remanded the matter to the original authority. All that the Commissioner (appeals) said in the impugned order is that the order-in-original is upheld and the appeal is rejected - Learned counsel for the appellant misunderstood these remarks which were in favour of the appellant’s claim that it had already deposited service tax through some challans and argued that the Commissioner (Appeals) had wrongly remanded the matter to the original authority.
The impugned order is correct and proper and calls for no interference - appeal dismissed.
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2024 (11) TMI 4
Utilization of CENVAT credit for payment of duty, in respect of inputs procured duty free, when the same are cleared as such, by a 100% EOU into DTA or utilization of CENVAT credit - invoking extended period of limitation - Whether the demand of duty by invoking the extended period, confiscation of goods, imposition of redemption fine and penalty imposed on the appellants are legally sustainable or not? - HELD THAT:- On perusal of the various permission letters granted by the Department to the appellants, we find that these cover the entire period of dispute, from June, 2008 to April, 2009. In view of the above evidences, where the jurisdictional central excise authorities are not only aware of the clearances of inputs as such being made by the appellants, but have given specific permission for such removal, then it cannot be stated that the Department is unaware of such clearances and therefore any SCN issued for demand of duty by invoking extended period is not legally sustainable.
We find that in the case of Commissioner of Central Excise, Mumbai Vs. Blue Star Ltd. [2015 (3) TMI 628 - SUPREME COURT] have held that extended period is not invokable in the case of goods cleared through CT-3 procedure by 100% EOU unit.
As demand confirmed under the extended period is not sustainable. Further, we find it is not even be possible for sustaining the demand of duty for the normal period, as in the present case, the SCN have not been issued within the permitted period one year from the relevant date for covering the normal period of demand.
Since the inputs have been cleared as such from the 100% EOU unit to DTA, in terms of Section 3 ibid, applicable duties of central excise are required to be paid on such goods. As the appellants had discharged such duty payable on these goods, by debiting from their CENVAT credit account, which is also available for taking further CENVAT credit by the buyer, no further duty payment is required to be made through PLA/cash. Since the adjudged demands are liable to be set aside on the ground of non- sustainability of extended period of limitation, and that normal period of demand is not covered in the SCN, there is no fresh duty payment involved for such goods.
No merits in the impugned order passed by Commissioner (Appeals) as it does not stand the scrutiny of law. Therefore, by setting aside the impugned order the appeal is allowed in favour of the appellants.
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2024 (11) TMI 3
CENVAT Credit - capital goods - copper bars / rods, MS rods /sheets/bars, channels, flats, joists etc. used in the factory for fabrication and erection of plant and machinery - HELD THAT:- The issue is no longer res integra, as far as the period prior to 07.07.2009 is concerned. It is covered by the judgment of this Tribunal rendered in the case of M/S. BMM ISPAT LIMITED VERSUS THE COMMISSIONER OF CENTRAL EXCISE, BELGAUM [2024 (4) TMI 671 - CESTAT BANGALORE] wherein this Tribunal had elaborately discussed the ratios rendered in the case of M/S. THIRU AROORAN SUGARS, M/S. DALMIA CEMENTS (BHARAT) LTD. VERSUS CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, THE COMMISSIONER OF CENTRAL EXCISE [2017 (7) TMI 524 - MADRAS HIGH COURT] and also decision of Larger Bench of this Tribunal in the case of M/S. MANGLAM CEMENT LTD. VERSUS C.C.E., JAIPUR-I [2018 (3) TMI 1547 - CESTAT NEW DELHI], wherein it is held that CENVAT credit on various inputs such as MS Angles, MS Channels, MS beams, MS joists, MS plates, etc., used in the fabrication of various machineries, support structure, platforms for machineries and equipment, etc., used in the factory, is admissible.
For the period from 07.07.2009 to April 2011, the definition of ‘input’ under Rule 2(k). The Explanation 2 has been inserted to the said definition vide Notification No.16/2009CE(NT) dated 07.07.2009. Consequently, the items viz., HR coils, HR Sheets, M.S. Angles, M.S. Channels and MS plates, etc., has been specifically excluded from the scope of the definition of ‘inputs’.
For the period prior to 07.07.2009, the appellants are eligible to avail CENVAT credit on the inputs viz., HR coils, HR Sheets, M.S. Angles, M.S. Channels and MS plates, etc., and accordingly, demand confirmed is not sustainable; for the period 07.07.2009 to April 2011, in principle CENVAT credit on the inputs viz., HR coils, HR Sheets, M.S. Angles, M.S. Channels and MS plates, etc., are not admissible. Consequently, the impugned order is modified and the appeal is remanded to the original adjudicating authority to recalculate the demand for the period after 7.7.2009, if any, payable. - invocation of extended period of limitation cannot be upheld. Thus, the demand is to be ascertained for the normal period of limitation. No penalty is imposable on the appellants.
The impugned order is set aside and the matter of the appellant company is remanded to the adjudicating authority - Appeal allowed by way of remand.
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2024 (10) TMI 1543
Condonation of delay of 282 days in filing the special leave petition - sufficient cause for delay or not - Seeking refund of amount paid under threat or duress in pursuance of an investigation - it was held by High Court that 'Though the original issuance of the show-cause notice may be in terms of the directions of the writ Court, any further contemplation of proceeding with the show-cause notice, would be without any authority, in view of the subsequent order passed.' - HELD THAT:- There is a delay of 282 days in filing the special leave petition for which we do not find any plausible explanation in the averments made in the application seeking condonation of delay. The special leave petition is dismissed on the ground of delay.
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2024 (10) TMI 1542
Interpretation of Rule 6 of the Cenvat Credit Rules 2004 thereby equating the “automobile cess” under a different enactment to be part of excise duty - HELD THAT:- Rule 6 of the CENVAT Credit Rules 2004 inter alia provides that CENVAT Credit shall not be allowed on such quantity of input as is used in or in relation to the manufacture of the exempted goods or for provisions of exempted services.
In M/s Mahindra and Mahindra Ltd [2019 (12) TMI 230 - BOMBAY HIGH COURT], the controversy was whether auto cess and education cess could be regarded as duties of excise and based upon the same, the manufactured goods or the services provided could be regarded as exempted goods or exempted services - In M/s Mahindra and Mahindra Ltd, the Coordinate Bench held that having regard to the nature of the various duties or cesses, which are in addition to the duty of excise leviable under the Act or additional duty of excise leviable under Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act 1957 which are nothing but levies of excise - The Court held that once it is seen that these cesses and duties are also excise duties and, on that basis, are included in the CENVAT credit scheme, as indicated by Rule 3 itself, the fact that these are referred to as cesses or duties loses its significance altogether. This was hardly determinative for construing the expression ‘duty of excise”. Thus, it was held that where cesses were paid on goods or services, such goods or services could not be regarded as exempted goods or services.
Incidentally, Unicorn Industries [2019 (12) TMI 286 - SUPREME COURT] was not even relied upon before the Tribunal, possibly realising the controversy in Unicorn Industries was not the same as the controversy involved before the CESTAT in the present case. There, the assessee insisted that there was no requirement to pay any cess or other duties like cess. Here, the Respondent has paid the cesses. Accordingly, we find no error in the impugned order made by the CESTAT, which, as noted earlier, is entirely based on the decision of this Court in M/s Mahindra and Mahindra Ltd.
None of the substantial questions of law as urged arise in this appeal - appeal dismissed.
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2024 (10) TMI 1541
Entitlement for the benefit of N/N. 20/2007 dated 25th April, 2007 which allow exemption to a new unit for a period of ten years - factual issues not addressed properly - violation of principles of natural justice - HELD THAT:- The Tribunal in setting aside the orders of two adjudicating authorities, i.e. the order-in-original and the order of the Commissioner (Appeals), did not address itself properly to the factual issues which needed a detailed and threadbare determination - Prima facie it has not considered some vital and material evidence and has acted upon irrelevant materials to hold in favour of the respondent.
This is the the highest Appellate authority to interfere with the order of the Tribunal only if there is a substantial question of law involved. No doubt as stated above, a substantial question of law is involved. But it would be in the fitness of things if this factual determination is made by the learned Tribunal.
The impugned order of the Tribunal dated 31st March, 2023 set aside - entire matter remanded to CESTAT to consider the case de novo upon hearing the parties and decide the same by a reasoned order within three months from the date of communication of this order - appeal disposed off by way of remand.
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2024 (10) TMI 1540
CENVAT Credit - inputs/capital goods - dumpers falling under Chapter 87 of the Central Excise Tariff Act, 1985 - Extended period of limitation - HELD THAT:- It is not in dispute that the appellant had accounted the said dumpers under the head ‘Fixed Assets’ in their balance sheet and have claimed depreciation on the same, thus declaring the dumpers as capital goods and hence, they cannot be construed as inputs under the Cenvat Credit Rules, 2004.
The dumpers which are classifiable under Chapter 87 of the Central Excise Tariff Act, 1985 are clearly excluded from the definition of ‘Capital Goods’. Therefore, appellant is not eligible for the benefit of cenvat credit on the dumpers which are used in the mining area away from the factory premises either as inputs or capital goods.
Whether the appellant is eligible for the benefit of cenvat credit on the dumpers as ‘Capital Goods’? - HELD THAT:- In view of the definition of the ‘Capital Goods’, the appellant is clearly not eligible for the benefit of the cenvat credit treating the dumpers as ‘Capital Goods’. The decisions of M/S. ADITYA CEMENT VERSUS CCE, JAIPUR-II [2016 (9) TMI 1127 - CESTAT NEW DELHI] and BHARATHI CEMENT CORPORATION PVT LTD. VERSUS COMMISSIONER OF CENTRAL TAX, TIRUPATI – GST [2022 (9) TMI 850 - CESTAT HYDERABAD] is not relevant in view of the fact that the appellant himself has considered the dumpers as capital goods and they have also admittedly claimed depreciation on these assets. The decision in the case of VIKRAM CEMENT VERSUS CCE, INDORE [2006 (2) TMI 1 - SUPREME COURT] is also not applicable since the mines where the dumpers are used are not captive mines.
Thus, the dumpers are not eligible for cenvat credit neither as ‘inputs’ nor as ‘capital goods.
Extended period of limitation - HELD THAT:- The original authority in the impugned order has only stated that the appellant after realising that they were not eligible for credit on dumpers as capital goods, they availed cenvat credit on the same declaring them as ‘inputs’ and this itself is a deliberate act with an intent to avail irregular cenvat credit. The Commissioner (Appeals) in the impugned order has not given any finding with regard to limitation. Neither the show cause notice nor the impugned orders have specified any factors to confirm suppression or misstatement of facts to invoke the extended period of limitation - unless there are specific allegations or averments for wilful mis-statement or suppression of facts, the demand cannot be sustained for the extended period. Therefore, the entire demand being beyond the normal period the same is set aside.
Appeal allowed.
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2024 (10) TMI 1539
Process amounting to manufature - undertaking several activities on bought out items - levy of excise duty on the activities performed on bought-out items - HELD THAT:- The customers get a complete finished product in un-assembled/ dis-assembled form under the brand name “KOHLER” which has a different identity, end use, nomenclature different from the individual parts going into the finished product with the names of “EOLIA SHOWER ONLY TRIM”, “HEALTH FAUCET W/WHITE SDSPRAY, M HOSE” and ‘INLINE STOP VALVE TRIM” or other similar products falling in these group categories. The process undertaken by the appellant falls within the expression “incidental and ancillary” to the manufacture of final products and amounts to manufacture within the scope of Section 2(f) of the Central Excise Act, 1944.
As regards “BOTTLE TRAP” “FLOOR DRAIN” and similar items, the appellant has claimed that PVD process undertaken in the appellant’s factory by which “parts are cleaned, preheated and coated with zirconium nitride through Vacuum Chamber with the help of specific amount of gases and as a result of these process the colour of parts get changed to yellow alike the process of gold plating, Brand name i.e. "KOHLER" is then embossed/laser marked on these items” dos not amount to manufacture as PVD coating constitutes merely makes products rust-free and this process does not change any function of the product except colour does not bring into existence a new product.
While applying the ratio laid down by the Hon’ble Apex Court in UNION OF INDIA VERSUS JG. GLASS INDUSTRIES LTD. [1997 (12) TMI 110 - SUPREME COURT], it is found that the process of PVD is not merely a colour changing or making the product rust-free. Without undertaking the process, the articles in dispute cannot be used as they will be highly corrosive and rust prone being always in contact with the water and will have practically no shelf life. The process of PVD is not applied merely to enhance the visual appeal but is necessary to make the product worth of its use. The process clearly falls within the definition of “manufacture” under Section 2(f) of the Central excise Act being incidental and ancillary to the manufacture of the finished goods.
The appeal is partly dismissed and partly allowed.
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2024 (10) TMI 1538
Refund claim - goods supplied to Mega Power Projects exempt from payment of Central Excise Duty - Department has rejected the refund claim of the appellant observing that the appellant have failed to fulfill the conditions has provided under Sr. No. 28 of exemption N/N. 31/2010-CE dated 28th July, 2010 - HELD THAT:- It is found from the record of the appeal, that the appellant has supplied EOT cranes to M/s. Larsen and Toubro under the invoice reference dated 18th November, 2010. It’s matter of record that the EOT cranes sold by the appellant were meant for the Amrawati Power Projects.
The perusal of the documents make it clear that the goods were meant for setting above Mega Power Project and the necessary undertaking as required under condition no. 28 of the exemption Notification no. 31/2010 dated 28th July, 2010 has been complied with. The appellant have complied with condition no. 28 of the exemption Notification and they are entitled for refund of the Central Excise Duty. Reliance also placed upon the Hon’ble Supreme Court Decision in case of the M/S BONANZA ENGINEERING & CHEMICAL PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2012 (3) TMI 69 - SUPREME COURT] where it was held that 'merely because the assessee, may be, by mistake pays duty on the goods which are exempted from such payment, does not mean that the goods would become goods liable for duty under the Act. Secondly, merely because the assessee has not claimed any refund on the duty paid by him would not come in the way of claiming benefit of the Notification No. 175/86-C.E., dated 01.03.1986.'
The impugned order-in-appeal is without any merit and is set aside - appeal allowed.
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2024 (10) TMI 1460
Justification of reduced penalty - setting aside refund sanction by Assistant Commissioner due to penalty reduction - HELD THAT:- A perusal of section 11AC of the Central Excise Act shows that the section itself provides for penalty equal to 100% and further provides that if the demand is paid along with penalty within 30 days of the order, the penalty shall be only 25%. Thus, both the penalty of 100% and its reduction to 25% on fulfilment of some conditions are mandatory. Even if penalty of 100% is imposed and it is not mentioned in the order in original that the penalty shall stand reduced to 25% if the duty, interest and penalty were paid within 30 days, if the assessee pays within 30 days and thereby fulfils the requirements for reduction of penalty, it will be entitled to that reduction.
In this case, the Commissioner did indicate in his order about reduction of penalty but the Tribunal did not mention it in its order. However, that does not mean that the Tribunal has enhanced the penalty to 100% even though the appellant had fulfilled the conditions for reduced penalty. The Commissioner (Appeals) clearly mis-read the Tribunal’s order and on that ground set aside the refund sanctioned by the Assistant Commissioner.
The impugned order is set aside - the order of the Assistant Commissioner is restored - appeal allowed.
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2024 (10) TMI 1459
Confiscation of boxes of branded ceramic floor / wall tiles seized at the premises[693 boxes] - boxes of ceramic glazed wall tiles cleared from the factory without payment of appropriate Central Excise duty and without declaring correct MRP - imposed a fine and penalty in lieu of confiscation - imposition of personal penalty of Rs.15,000/ under Rule 26 of Central Excise Rules, 2002 on Managing Partner -
Whether MRP could be revised in regard to ceramic tiles which were manufactured and cleared from the factory of the manufacturer prior to 28/02/2008? - HELD THAT:- As there has been enough litigation as stated by the appellant and appeal of the department is pending in Supreme Court without stay. This Court also finds that the legal proposition about alteration of MRP as laid down in the case of Acme Ceramics[2014 (10) TMI 14 - CESTAT AHMEDABAD] is clear on this aspect which has been followed even in number of cases as cited (supra) and which concludes that absence of provision relating to demand of duty in case of change of MRP and from whom for the period 01.03.2008 is fatal to the Revenue’s case.
In view of consistent decisions of this bench this court is inclined to follow the aforesaid decisions in this case also and holds that the lack of provision at the relevant time goes against the Revenue.
This court also finds that the case law cited by the learned Advocate cited above that if there is no demand of duty there cannot be any imposition of penalty and fine is relevant for setting a side penalties. The appeals filed by the appellants are therefore, liable to succeed and same are allowed with consequential relief.
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2024 (10) TMI 1398
Refund of unutilized CESTAT credit - no appeal lies against the order dated 6 November 2023, by which the Appellant’s application for rectification came to be rejected - HELD THAT:- The learned counsel for the Appellant relied on Lav Kush Textile [2017 (5) TMI 1021 - RAJASTHAN HIGH COURT] to contend that relief was granted by the Division Bench of the Rajasthan High Court on identical facts. On considering Lav Kush Textile, it is found that the same has relied upon the decision of the Karnataka High Court in Slovak India [2006 (7) TMI 9 - KARNATAKA HIGH COURT]. Further, this decision notes that the Hon’ble Supreme Court had confirmed the Karnataka High Court order by dismissing the SLP against the same. In effect, therefore, the view taken in Lav Kush Textile based, according to the learned counsel for the Appellant on facts identical to the present case, directly conflicts with the view taken by the Full Bench of this Court in the case of Gauri Plasticulture [2018 (4) TMI 1233 - BOMBAY HIGH COURT].
There are no error in the impugned orders made by the CESTAT, since these orders relied upon the decision of the Full Bench in the case of Gauri Plasticulture. Even considering the slight difference in the factual positions, it is difficult to hold that the ratio in the case of Gauri Plasticulture is not attracted or would not cover the Appellant’s case.
The impugned orders made by the CESTAT are not error-prone and that no substantial question of law arises in this appeal - Appeal dismissed.
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2024 (10) TMI 1397
Recovery of short paid service tax - time limitation - appeal has been preferred beyond the period of 1325 days - HELD THAT:- It is not in dispute that after service of the impugned order dated 31.03.2017, the appeal should have been preferred within limitation, but the appeal has been preferred beyond the period of 1325 days. Admittedly, the impugned order dated 31.03.2017 was received by the petitioner. The appeal has been preferred on 13.01.2021 beyond the period of 1325 days.
This Court, under extra ordinary jurisdiction, cannot interfere with the impugned orders as the application of limitation does not apply to section 35 Central Excise Act.
The Apex Court, after considering the judgement of ITC Limited [1990 (8) TMI 173 - SUPREME COURT], in the case of Singh Enterprises [2007 (12) TMI 11 - SUPREME COURT] has specifically held 'Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period.'
Thus, it has been held that the delay cannot be condoned beyond the period what is prescribed under the respective Act as the language of the section specifically provides for condonation of delay of additional period mentioned therein only.
Further, since the petitioner has equally, efficacious alternative remedy of filing an appeal under section 35-G of the Central Excise Act before the Division Bench of this Court, writ petition before the Single Judge is not maintainable.
Petition dismissed.
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2024 (10) TMI 1396
CENVAT Credit - input service or not - denial on the ground that expression “Setting up” has been deleted from the inclusive clause of the definition w.e.f. 01/04/2011 and since no goods were manufactured or removed prior to 24/11/2015, the impugned services do not qualify to be input service - HELD THAT:- From the definition of Input Service, it is clear that except the services mentioned in the exclusion clause all the services which are used in or in relation to the manufacture of final product and clearance of goods upto the place of removal are admissible input service.
As regard the use of service, there is no dispute that those services were used in or in relation to the manufacture of the final product. As regard the contention of the revenue that “setting up of factory” has been removed from the inclusion clause, in our view the removal of from “setting up of factory” will not make any difference because the inclusive portion is not additional service but it is only clarificatory out of all the services covered in main clause. Therefore, even if it is removed from the inclusion clause so long it is used in or in relation to the manufacture of final product, all the services are admissible input service.
On perusal of the exclusion clause of the definition, it is found that none of the services which are subject matter in the present appeal is falling in the exclusion clause. Therefore, there are no hesitation to hold that all the services are admissible input service and Cenvat credit is admissible.
The impugned order is set aside - appeal allowed.
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9911796707
