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Central Excise - Case Laws
Showing 121 to 140 of 81317 Records
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2024 (10) TMI 1395
Determination of date of filing of Refund Application - Refund in respect of the duty paid by their Daman unit (appellant) which is liability of their Halol unit - mistake has occurred due to error of ERP system which is meant for all the group units - computation of time period of one year provided under Section 11B for refund of duty should be computed as on date of first time of filing of refund or on the date of second time filing of refund after return of the refund by the department - time limitation - HELD THAT:- As regard the admissibility of the refund there is no dispute that the duty liability of halol unit was paid by the appellant’s Daman unit due to error in the ERP system. Therefore, the duty paid in access by the appellant unit is clearly refundable to them in principle.
Somewhat identical issue has been considered by the Hon’ble Gujarat High Court in the case of Auro Pumps Private Ltd [2017 (7) TMI 24 - GUJARAT HIGH COURT] wherein Hon’ble Court after considering the identical facts, where it was held that 'this is a case of issuing appropriate mandamus for calling upon the authorities to treat the payment of Rs. 5,10,573/- against Code No. 002 from the date on which, it was paid resulting into exempting the petitioners from any coercive liability of so called non-payment against Code No. 002. All the communications and order, which are impugned in the petition are hereby quashed and set aside.'
Time limitation - HELD THAT:- There is no dispute that the appellant have initially filed the refund claim within one year from the relevant date, it is only after the department raised some discrepancies, the appellant have re-filled the refund second time. Therefore, in this fact the date of first time filing of the refund has to be considered as date of filing of refund application which is well within the time. Therefore, the refund is not time barred in the facts of the present case.
It is settled that date of first time filing of refund shall be taken as date of filing of refund even though the refund application was returned and subsequently the same is re-filled at a later date. Accordingly, in the identical facts in the present case applying the ratio of above judgments, the refund is not time barred.
The Appellants have challenged the said Order in Appeal on the grounds that the Ld. Commissioner (Appeals) has no power to remand and also on the merits of the matter - the issue on Ld. Commissioner (Appeals) has power to remand the matter or not, this Tribunal in catena of judgments considering the amendments in Central Excise Act, 1944, held that Commissioner (Appeals) has power to remand the matter.
The impugned orders are set aside - Appeal allowed.
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2024 (10) TMI 1341
Appropriate interest for the delay of rebate to the petitioner - Section 11BB of the Central Excise Act, 1944 - HELD THAT:- In the light of the undisputed fact that the respondent did not grant refund in favour of the petitioner within the maximum prescribed period of three months from the date of the petitioner submitting the refund claim in relation to the amount rejected in the first instance by the respondent which was allowed/granted in favour of the petitioner - the respondent would be liable to pay interest on the refund allowed vide order dated 06.02.2023 in revision order No.46/2023 – CX.
The respondent is directed to grant interest in terms of Section 11BB of the Central Excise Act, 1944 in favour of the petitioner on the amount of refund as directed in revision order No.46/2023 – CX dated 06.02.2023 from 09.02.2017 till the date of payment within a period of eight weeks from the date of receipt of a copy of this order - Petition allowed.
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2024 (10) TMI 1340
CENVAT credit of the duty paid on the materials and capital goods used for fabrication, erection and commissioning of both the paint shops on turn key basis - immovable property embedded to earth and ceiling are not excisable goods - scooter and motorcycle plants was wrongly taken and irregularly utilized by them - interest at the appropriate rate leviable on the amount availed wrongly and utilized irregularly - penal action for the act of omission and commission under the provision of the Central Excise Act, 1944.
HELD THAT:- The proposed questions of law, however, stand finally adjudicated and decided in favour of the assessee by this Court vide judgment dated 12.01.2024, in COMMISSIONER, CENTRAL EXCISE COMMISSIONERATE, SONEPAT (DELHI-III) VERSUS M/S. ULTRATECH CEMENT LTD. [2024 (1) TMI 959 - PUNJAB AND HARYANA HIGH COURT] wherein, this Court has held 'The view taken as such was that the amendment could only operate prospectively which was made in the Cenvat Credit Rules, 2004 which came into force from 07.07.2009 and in such circumstances the benefit had been granted regarding the issue of the structures which are embedded to the earth and whether the structures were to be treated as inputs used in final products as input for capital goods.'
This Court has rejected the appeal on limitation. However, since the delay is condoned, the appeal on limitation is not dismissed. As no substantial question of law worth examining left in the present appeal, the same is accordingly dismissed.
Appeal dismissed.
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2024 (10) TMI 1339
CENVAT Credit - construction, consultancy, repair, and maintenance services - nexus with manufacturing activity - for what purpose and in connection with which plant/factory, the Appellant had availed those credits? - HELD THAT:- There is no denial of the fact that Appellant had replied back to the show-cause notice almost after a year on dated 10.09.2015 when physical hearing was last scheduled to 22.09.2015. On going through the reply to the show-cause notice but no reference is made in the said reply that the new plant is located away from the present factory of the Appellant, though a distinction between ‘plant’ and ‘factory’ was attempted therein. It is apparently for this reason that learned Commissioner, after conclusion of physical hearing had issued a letter to the Appellant on dated 09.10.2015 seeking its response on the location where services were provided and the place where setting of new plant was progressing and the activities to be undertaken in the same plant. The reply though receipt after passing of the order by the Commissioner, going by its content as available in page 25 to 28 of the appeal memo, it can be considered as a cryptic reply for the reason that para 2.3 of its reply letter reveals that the plant was still in proposal stage which can be considered as forward integration.
Further, it is also noticed that Appellant has indicated that they were in the process of expanding their existing sponge iron plant capacities in village Salav but there is nothing mentioned about proposed plants in other two villages namely Nidhi and Mithekhar Village. This being fact on record and when annexure 8 i.e. copy of the letter received from the Ministry of Environment & Forest issued on dated 27.01.2011 speaks about conditionalities for setting of the plant and the reply letter in response to Commissioner’s query issued in November, 2015 indicates that new proposed plant was not completed by that time, which could be treated as forward integration of their existing plant, availment of credits on those inputs by the end of 2012 claimed to have been used in the proposed plant and not in a functional plant without proof of forward integration of the existing plant covering three villages is irregular and not in conformity to the CENVAT Credit Rules, 2004.
The order passed by the Principal Commissioner of Central Excise, Customs & Service Tax, Raigad is hereby confirmed - Appeal dismissed.
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2024 (10) TMI 1338
Abatement of appeal under Rule 22 of CESTAT (Procedure) Rules, 1982 - Liquidation proceedings - recovery of irregular CENVAT credit availed, with interest and penalty - HELD THAT:- As the Department has already registered its claim with the Liquidator, no further proceedings can survive in this appeal.
As the NCLT, Chennai has ordered for Liquidation of the appellant vide its order dated 19.03.2018 and as the Liquidator has confirmed the receipt of claim from the Deputy Commissioner of GST and Central Excise, Trichy and also as no application as per Rule 22 has been made by the Official Liquidator appointed by the NCLT for continuance of the appeal, the appeal should abate in terms of the above referred Rule.
As such the appeal gets abated in terms of Rule 22 of the CESTAT (Procedure) Rules, 1982 and also gets dismissed being infructuous.
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2024 (10) TMI 1337
Classification of goods - soya nuts and wheat puffs - goods cleared below the threshold limit prescribed - benefit of SSI exemption under Notifications 175/86-CE dated 01.03.1986 and 01/93-CE dated 28.02.1993 - HELD THAT:- It is undisputed that the appellant was clearing goods most of which were supplied to ICDS which were exempted anyway regardless of the SSI exemption. These have to be excluded from the aggregate value of clearances under the notification in view of the Explanation II. Once the value of these clearances is deducted from the total turnover of the appellant, what remains is the value of dutiable goods during different years which are recorded in the impugned order by the Commissioner. During the entire period the value of such clearances had not exceeded Rs. 7.5 lakhs in any financial year even as per the impugned order.
Condition No. 4 stipulates that the assessee must have been registered with the Director of Industries but the proviso therein clarifies that if the value of clearances during the preceding financial year or the current financial year did not exceed and was not likely to exceed Rs.7.5 lakhs, this condition shall not apply. Explanation II clarifies that the value of clearances does not include such clearances whether the goods are exempted by any other notification or are chargeable to nil rate of duty. A perusal of the impugned order says that the year wise values of goods cleared did not exceed Rs.7.5 lakhs in any year.
The appellant was entitled to SSI exemption and, therefore, the duty demanded in the impugned order and the consequential penalties cannot be sustained and need to be set aside - the impugned order is set aside - Appeal allowed.
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2024 (10) TMI 1336
Reversal of CENVAT Credit with interest and penalty - non-moving/ obsolete /surplus inventories - inputs written off in their books of account in accordance of rule 3 (5B) of CCR - Invocation of extended period of limitation - HELD THAT:- On a plain reading of the said Rule it is clear that in the event the value of any input or capital goods before being put to use on which Cenvat credit has been availed are written off fully or partially or any provision has been made to write off those fully or partially than the manufacturer or service provider are required to reverse/pay Cenvat credit availed on such inputs or capital goods. Thus it is clear that provisions of rule 3 (5B) CCR are applicable only when the value of asset and or inventory is written off fully or partially, or wherein any specific provision to write-off fully or partially has been made in the books of accounts.
In the present case from the very beginning the appellant have submitted that they have only written down the value of the raw materials in their books of account and has not written off the value fully or partially. Also, the claim of the appellant are that all these raw materials are still available in their factory and are in usable conditions; the value is written down as per the accounting principle and since the credit availed is on inputs, therefore, under the CCR, 2004, there is no bar in taking depreciation benefit' under Income-tax Act, 1961 - there is no evidence to the effect that the inputs whose value had been written down had been removed from the factory, thus, reducing the value of the raw materials. Keeping in view the accounting principles and Income-tax benefit, if any, it cannot be construed that the value of the inputs are written off from the books of account and are not usable resulting into invoking of Rule 3(5B) of Cenvat Credit Rules, 2004.
There is no denial by the Department about appellant to have kept the inventory in their accounts at full value and upon consumption in regular course of business, the cost of inventory is booked at full value itself. There is also no denial to the fact that the non/slow moving inventory has at certain stage being used by the appellant in its manufacturing process. Hence the inventory which had not become obsolete cannot be called as the entry written off. As already observed above Rule 3(5B) CCR is invokable vis-à-vis written off entry only. The said rule has wrongly been invoked by the Department.
This Tribunal also in the case of M/S. HINDUSTAN ZINC LTD. VERSUS COMMISSIONER OF CENTRAL GOODS & SERVICE TAX COMMISSIONERATE, UDAIPUR (RAJASTHAN). [2021 (8) TMI 935 - CESTAT NEW DELHI] and in another case titled as M/S TAKATA INDIA PVT. LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, ALWAR, RAJASTHAN [2022 (4) TMI 1359 - CESTAT NEW DELHI] has been held that since the assessee has made only a general provision and the department has not been able to identify the details of inventory or assets for which the provision has been made as to whether those inventories have become obsolete, the demand confirmed invoking Rule 3(5B) in the circumstances is not sustainable. There is also no denial to the fact that in case where such non/slow moving inventory had become obsolete the appellant had already reversed the credit.
Invocation of extended period of limitation - HELD THAT:- It is observed that the provision in the records of the appellant (balance-sheet/ P & L accounts) was the activity in accordance of normal accounting practice. Appellant is found to have committed nothing which may amount to evasion of tax. His defence since the stage of replying to the show cause notice has been apparently clearer about non-invokability of rule 3 (5B) of CCR, but the same has not been considered by the authority below - there is no evidence for the invocation of extended period. Show Cause Notice (SCN) therefore is held to be barred by the period of limitation.
The impugned order is set aside - appeal allowed.
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2024 (10) TMI 1335
Levy of penalty under Rules 15 (1) of the Cenvat Credit Rules, 2004 on an employee who did not avail or utilize Cenvat Credit - HELD THAT:- The penal provision provided under Rules, 15 of the Cenvat Credit Rules, 2004 clearly mentioned that penalty imposable of the person who takes of utilises Cenvat Credit in respect of input or capital goods or input service. It is found that the appellant has been working only as a employee of the main noticees, he has neither taken Cenvat Credit himself or utilize the same for its own purposes for payment of the duty and therefore, the penal provisions has provided under Rules, 15(1) of the Cenvat Credit Rules, 2004 are not invokable in this case.
Reliance placed upon this Tribunal decision in case of SHRI PRANATHARTHIHARAN SRIDHARAN VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, VADODARA-I [2023 (3) TMI 1123 - CESTAT AHMEDABAD] where it was held that 'penalty under Rule 15(1) on the present appellant, who is merely an employee of the Company, is not sustainable.'
The impugned order in Original is without any merit so far as imposition of penalty on the appellant is concerned - appeal allowed.
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2024 (10) TMI 1334
Denial of Cenvat Credit distributed during April to June 2012 by the Appellant’s Head Office (Input Service Distributor) at Kolkata to the Appellant unit at Palej (Bharuch) - denial on the ground that the ISD did not distribute the Credit amongst all units proportionate to the respective turnovers of the units, resulting in distribution of excess Credit to the Palej unit - revenue neutrality - intent to evade or not - extended period of limitation - HELD THAT:- It is found that as regard distribution of credit in respect of common input service , the provisions is made under Rule 7 of Cenvat Credit Rules, 2004 which has undergone the change with effect from 01.04.2016.
It is found that the proportionate distribution of the input service credit was made mandatory by amendment with effect from 01.04.2016. However, prior to the said amendment there was no compulsion on the assessee to distribute the credit either to one unit or proportionately to different units. Therefore, even if the entire credit is distributed to the appellant instead of distribution proportionately to all the units, credit to the appellant unit cannot be denied.
It is also found that the other units to whom the proportionate credit should have been distributed have paid much more duty from PLA /cashthan the said attributed credit therefore, this being clearly a revenue neutral situation, the demand is not tenable.
In the case of Unifrax India Ltd v CCE [2023 (10) TMI 955 - CESTAT AHMEDABAD], the CESTAT Ahmedabad has held that 'in view of existing provisions of CENVAT Credit Rules, 2004 during relevant period, the 100% credit availed by the appellant is in order in terms of Rule 2007, existing at the relevant time.'.
In view of the judgments on the point of distribution of input service credit as well as on revenue neutrality it is settled that even if the cenvat credit is distributed to one unit only during the relevant period, the credit cannot be denied.
The impugned order is set aside - Appeal is allowed.
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2024 (10) TMI 1333
CENVAT Credit - capital goods - inward transport - reverse charge mechanism - scope of SCN - penalty - HELD THAT:- The Adjudicating Authority has clearly traversed beyond the charges levelled in the show cause notice and confirmed the demand on the grounds which were not indicated in the show cause notice. Therefore, on this ground itself, the demand is not sustainable, even though he has rightly held the said goods as input or consumable and therefore allowed the taking of the credit of the same by the appellant which had initially taken the credit on the same as capital good. Therefore, taking of credit has not been found to be wrong by the Adjudicating Authority as such.
CENVAT credit on Araldite - HELD THAT:- It is found that because of their mechanical properties and resistance to chemical and suitability for prevention of formation of rust, levelling etc., they are used in fermentation tanks on the interior and exterior surfaces providing a barrier against corrosive substances. Therefore, once the Adjudicating Authority has held Epoxide Resin as capital goods, by the same logic even Araldite would also be considered as capital goods. Therefore, in view of the facts of the case and its use in the factory, Commissioner was not correct in holding that it was in the nature of inputs or consumables. On this count itself demand is not sustainable.
It is further noted that Commissioner after holding it as inputs or consumables had further gone to confirm the demand on the grounds that the same has been used in the manufacture of both dutiable and exempted goods and therefore the demand has been confirmed, which has been included in the total amount of Rs. 1,33,312/- - this demand for reversal or payment of duty under Rule 6(3A) of CCR 2004 is not sustainable.
Penalty - HELD THAT:- It is noticed that a composite penalty has been imposed covering both the issues. However, as the demand is not sustainable on the amount of Rs. 1,33,312/- and only demand which is sustainable on account of their non-contest is Rs. 1,25,329/-. Therefore, the penalty also needs to be appropriately re-determined. In the light of the discussion, I consider an amount of Rs. 20,000/- as penalty would be adequate and therefore the order for penalty is modified to that extent.
The demand of Rs. 1,33,312/- is not sustainable and set aside. The demand of Rs. 1,25,239/- is upheld - Appeal allowed in part.
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2024 (10) TMI 1332
Inclusion of amount retained by the appellant under the Package Scheme of Incentive 1993 - difference between the amount collected and the ‘net present value (NAV)’, computed with the date of schedule payments as benchmark - 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] where it was held that 'In view of the decisions of the Tribunal, relating to the peculiarity of the scheme which was prevailed insofar as the impugned order is concerned, the demand is set aside'.
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 is set aside - appeal allowed.
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2024 (10) TMI 1256
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Petitioner failed to deposit the required amount under the scheme - HELD THAT:- Admittedly, the petitioner did not deposit the amount of Rs. 89,77,393.50 as per Form SVLDRS-3 issued by the respondent No. 2 after considering the Form SVLDRS-1 filed by the petitioner. The ground on which the petitioner had not deposited the money to avail the benefit under the scheme is of no consequence inasmuch as the facts remains that the petitioner had not abided by the terms and conditions of the scheme which stipulate that the petitioner was supposed to make the payment within 30 days from the issuance of the Form SVLDRS-3.
The Hon’ble Apex Court in the case of M/s. Yashi Constructions [2022 (3) TMI 110 - SC ORDER] has held that 'It is a settled proposition of law that a person, who wants to avail the benefit of a particular Scheme has to abide by the terms and conditions of the Scheme scrupulously. If the time is extended not provided under the Scheme, it will tantamount to modifying the Scheme which is the the prerogative of the Government.'
Thus, the petitioner can not get the benefit of Form SVLDRS-3 and permitting the petitioner to pay the amount as per the Form SVLDRS-3 would amount to modify the scheme by extending the date of payment which is not permissible.
Reliance placed by the petitioner on the decision of Bombay High Court in the case of Shri Arjun Amarjeet Rampal [2023 (5) TMI 13 - BOMBAY HIGH COURT] is also of no help to the petitioner as in the facts of the said case the petitioner could not deposit the amount due to some technical glitch - the decision in the case of Shri Arjun Amarjeet Rampal would not be applicable in the facts of the case when the petitioner has failed to deposit any amount as per the Form SVLDRS-3.
The present petition fails and is accordingly dismissed.
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2024 (10) TMI 1255
Denial of input service credit - ineligible capital services - maintaining medical centre (Ambulance room) - membership of Tamil Nadu Electricity Consumer Association - what constitutes “services used directly or indirectly in relation to manufacture of final products”? - period April 2011 to March 2013 - HELD THAT:- The words 'directly or indirectly in or in relation to manufacture' used in the definition of input service, should be given a very wide meaning, subject only to the restrictions placed by the CCR 2004. Credit of service tax of duty paid towards mandatory services availed by the appellant under various Acts or which are mandatory for manufacture of goods, would hence continue to be eligible for being taken as credit, as without availing the said services, the goods cannot be manufactured, without facing penal action or other disruptions. So they are integrally connected with the ultimate production of goods/ chemicals manufactured in their factory. Moreover, services availed are not used primarily for private use or consumption of any employee and the duty paid forms a part of the final price of the product on which tax is paid.
In the KAKINADA SEAPORTS LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, SERVICE TAX AND CUSTOMS VISAKHAPATNAM-II [2015 (11) TMI 51 - CESTAT BANGALORE], the Division Bench examined the eligibility of taking cenvat credit on health care with ambulance facility, during the period 01/07/2012 to 31/03/2013. It was held 'provision of healthcare within the port area where accident can take place cannot be said to be having no nexus to the port service, therefore, the credit of Rs. 83,430/- is admissible.'
Although it is not a universal rule to be followed in all situations, judicial comity or judicial propriety requires that the interpretation of law made by another Bench should be followed. Moreover, the issues involve a very low tax effect and relate to an Act / Rules that has already been eclipsed with the introduction of GST. Not much would be gained by protracting litigation.
The impugned order is set aside - appeal allowed.
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2024 (10) TMI 1254
Refund of un-utilised cenvat credit on closure of units - denial of refund in the absence of express statutory mandate or provisions of law - time limitation - HELD THAT:- The principle of law was settled by the Tribunal, which was affirmed by the High Court of Karnataka and the Apex Court in Slovak India Trading Co. Pvt. Ltd. [2006 (7) TMI 9 - KARNATAKA HIGH COURT] that since there is no manufacture in the light of closure of the company, Rule 5 is not available for the purpose of rejection as has been rightly ruled by the Tribunal and, therefore, the refund has been rightly ordered in the light of the closure of the factory and the assessee having come out of the Modvat Scheme. The appellant is, therefore, entitled to the refund as claimed by him.
In the impugned order, the Commissioner (Appeals) has also observed that the claim for refund filed by the appellant on 5.6.2018 is time barred under Section 11B of the Act, which provides that an application for refund of such duty shall be made before the expiry of one year from the relevant date. The Explanation annexed to Section 11B defines the ‘relevant date’ for the purpose of reckoning the time period within which the refund claim is to be filed.
Considering the facts of the present case, it is found that on closure of the unit at Delhi in March, 2016, the appellant vide its letter dated 30.05.2016 had requested the Department to transfer the accumulated cenvat credit to its unit at Gurgaon and thereafter, all the correspondences between the appellant and the Department had been at the Gurgaon address of the appellant. While the said request for transferring the credit amount was pending with the Department, the Central Excise Act, 1994 was repealed w.e.f. July, 2017 and as a result, the amount of cenvat credit accumulated could not be transferred to GST. In the circumstances, the appellant had no other alternative but to seek the refund of the cenvat credit amount of Rs.17,24,470/- and accordingly, the refund application was filed on 5.6.2018 - In the facts of the present case, the refund application cannot be rejected as being time barred.
The impugned order deserves to be set aside and hence, the appeal is allowed.
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2024 (10) TMI 1253
Valuation of Excise Duty - inclusion of excess freight collected by the appellant as compared to the actual freight paid to the transporter in the assessable value of the excisable goods for the purpose of charging excise duty - HELD THAT:- This issue is no longer res-integra particularly in the appellant’s own case this tribunal has held that in such case the freight is not includible in the assessable value.
This Tribunal in KASHYAP SWEETNERS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, VAPI AND JITENDRA PANDEY VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, VAPI [2023 (7) TMI 1111 - CESTAT AHMEDABAD] where it was held that 'excess freight collected by the appellant from the customers shall not be included in the transaction value for charging excise duty.'
The demand in the present appeals is not sustainable - Hence, impugned orders are set aside, appeals are allowed.
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2024 (10) TMI 1252
Exemption N/N. 12/2012-CE dated 17.03.2012 - procedure for goods cleared under Served from India Scheme not followed - whether Appellant wrongly availed exemption from duty for goods cleared under a specific notification? - HELD THAT:- It is found that the appellant has claimed the exemption notification no. 12/2012-CE dated 17.03.2012 which does not contain any condition except the submission of PAC which is not in dispute, therefore, the appellant is clearly entitled for the Notification No.12/2012-CE dated 17.03.2012 (Sr. no. 336). This was clearly presented before the learned Commissioner (Appeals) also but the Learned Commissioner (Appeals) has not given any finding or comment on the submission made by the appellant in this regard.
This issue has been considered by this Tribunal in the appellant’s own case vide Final Order No. 11181-11183/2024 dated 07.06.2024 [2024 (6) TMI 300 - CESTAT AHMEDABAD] where it was held that 'Once the genuineness of the invoices has been verified and found to be justify the quantum of claim of the appellant as verified by the Jurisdictional assistant Commissioner, the non-submission of undertaking by the appellant is merely procedural and the appellant should not be denied the substantial benefit merely for procedural lapse.'
In view of the above decision in the appellant’s own case, the learned Commissioner (Appeals) order without considering the entitlement of exemption N/N. 12/2012-CE is not legal and proper. Hence, the impugned order is set aside and the appeals are allowed.
Other appeal for personal penalty on Shri Tarun Santra which is consequential to the demand of duty on the company. Since the duty demand against company is not sustainable, consequential penalty will also not sustain.
Both the appeals are allowed.
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2024 (10) TMI 1251
Process amounting to manufacture - inspection, rectification of defects, complete functional testing, quality control etc. - discharge of duty on the transaction value as per Rule 16(2) of the Central Excise Rules, 2002 - HELD THAT:- This Tribunal in the appellant’s own case M/S. MRO-TEK LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, BANGALORE–I [2024 (4) TMI 30 - CESTAT BANGALORE] analysing the processes undertaken by them on the imported Modems which are similar to that one now applied to the indigenous goods, held 'the activities carried by the appellant in the premises at 29B/3 on imported Modems would result into ‘manufacture’ within the meaning of Section 2(f)(iii) of Central Excise Act, 1944. Consequently, the appellant are required to discharge duty on the imported Modems for the aforesaid activities in their trading premises, which amounts to manufacture.'
Therefore, there is no doubt that the processes carried out by the appellant are resulting into manufacture; hence, the duty is required to be discharged on the transaction value of the Modems as per Rule 16(2) of the Central Excise Rules, 2002.
The impugned order is set aside - the appeals are allowed
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2024 (10) TMI 1250
Demand of Differential duty - determination of assessable value - goods manufactured on job work basis by the appellant which were cleared to the principal manufacturer who consumes it captively - determination on the basis of principle laid down in the case of Ujjagar Prints or Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - HELD THAT:- The issue is no more res integra in view of the ratio laid down by the coordinate Bench of this Tribunal in the case of COSMOS CONDUCTORS PVT LTD VERSUS COMMISSIONER OF C.E., BANGALORE-II AND RAMACHANDRA M.G., MANAGER M/S COSMOS CONDUCTORS PVT LTD VERSUS COMMISSIONER OF C.E., BANGALORE-II [2023 (11) TMI 214 - CESTAT BANGALORE] and upheld by the Hon’ble Supreme Court in the case of COMMNR. OF CENTRAL EXCISE, PUNE VERSUS M/S. MAHINDRA UGINE STEEL CO. LTD. [2015 (4) TMI 351 - SUPREME COURT].
This Tribunal in Cosmo Conductors Pvt. Ltd.’s case observed that 'Even though the aforesaid judgement was delivered prior to insertion of Rule 10A, however, there is no change in the wordings of Rule 8 after 01.03.2007, and the facts of the present case do not fall either under sub-rule (i) or sub-rule (ii) of Rule 10A of Central Excise Valuation Rules, 2000.'
There are no merit in the impugned order in applying Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. Consequently, assessable value of the job-worked goods be determined following the principle laid down in UJAGAR PRINTS ETC. ETC. VERSUS UNION OF INDIA & OTHERS [1989 (1) TMI 124 - SUPREME COURT] when the principal manufacturer (raw material supplier) uses it captively even after insertion of Rule 10A to the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 w.e.f. 01.04.2007.
The impugned orders are set aside and the appeals are allowed.
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2024 (10) TMI 1249
Reversal/Recovery of CENVAT Credit - inputs written off - Rule 3(5B) of the Cenvat Credit Rules, 2004 - HELD THAT:- The issue is no more res integra and considered by this Tribunal in the case of M/S. HEWLETT PACKARD INDIA SALES PVT. LTD. VERSUS THE COMMISSIONER OF SERVICE TAX, LTU, BENGALURU [2024 (8) TMI 718 - CESTAT BANGALORE]. This Tribunal after referring to the judgments in the case of M/S. ERICSSON INDIA PVT. LTD. VERSUS CCE, JAIPUR [2019 (3) TMI 776 - CESTAT NEW DELHI] and M/S. GKN DRIVELINE (INDIA) LTD. VERSUS CCE, DELHI-III [2023 (9) TMI 1131 - CESTAT CHANDIGARH], held 'erroneous availment of cenvat credit under Rule 3(5) of the Cenvat Credit Rules, 2004 could be recoverable only after insertion of the recovery provision to the said Rule by insertion of an Explanation through amending Notification No.3/2013-CE(NT) dated 01.03.2013 as amended only w.e.f. 01.03.2013.'
Following the above precedent and since period of recovery pertains to 2006-07 to 2008-09, the impugned order is set aside - Appeal allowed.
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2024 (10) TMI 1178
100% EOU - interest on the delayed refund of pre-deposit - HELD THAT:- It is found that in this case, the appellant has made the pre-deposit in terms of the direction of the Tribunal vide Order dated 09.09.2014 on 11.11.2014, and the order of the Tribunal has gone in favour of the appellant.
In these circumstances, by relying on the decision of the Tribunal in the case of Riba Textiles Ltd. [2020 (2) TMI 602 - CESTAT CHANDIGARH], which decision has been affirmed by the Hon'ble Punjab and Haryana High Court [2022 (3) TMI 693 - PUNJAB & HARYANA HIGH COURT], wherein the Hon'ble High Court observed 'The appellant is entitled to claim the interest on delay refund from the date of deposit till its realization.'
Relying on the decision of the Hon'ble High Court of Punjab and Haryana in the case of Riba Textiles Ltd. the appellant is entitled to claim interest of pre-deposit made on 11.11.2014 till its realization.
Appeal disposed off.
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