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Central Excise - Case Laws
Showing 141 to 160 of 81317 Records
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2024 (10) TMI 1177
Inclusion of discounts offered to bulk purchasers in the transaction value - period from July 2008 to November 2011 and from December 2011 to January 2013 - HELD THAT:- The issue stands squarely covered by the decision of the Tribunal in MAHANAGAR GAS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI – II [2024 (3) TMI 341 - CESTAT MUMBAI]. On a perusal of the said decision, it is found that the issue is identical and relates to the period from July 2008 to November 2011 and from December 2011 to January 2013. The said decision, having examined the contentions as well as decision of the Tribunal in MAHANAGAR GAS LIMITED VERSUS CCE, MUMBAI - V [2016 (9) TMI 782 - CESTAT MUMBAI], held that 'money value of the facilities, treated as equivalent to ‘trade discount’, be added back to the transaction value. These fall under different provisions of the Rules supra and the lower authorities have not amplified the lack, and remedy, which was sought to be invoked.'
There are no merit in the impugned order which is set aside to allow the appeals.
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2024 (10) TMI 1128
Rejection of rebate claim - rejection on the ground that self-sealing procedure for the export containers was followed by the petitioners though such procedure was not available to the petitioners and the chain of identity of goods dispatched by the petitioners to Merchant Exporter had been broken and consequently, the identity of the export goods was not established.
HELD THAT:- The Revisional Authority has referred to the Rules of Central Excise Rules, 1944 which are not applicable in the facts of the case and arrived at a conclusion by referring to the Rules 187, 187A and 187B of the Central Excise Rules, 1944 instead of referring to the Central Excise Rules, 2001 and subsequent Rules as well as the condition Nos. 2 (e) and 2 (h) of the Notification No. 19/2004 dated 06.09.2004 issued under Rule 18 of the Central Excise Rules, 2002.
The impugned order dated 13.12.2021 passed by the Revisional Authority set aside, and the Revisional Authority is hereby directed to decide the Revision Applications afresh de-novo after giving adequate opportunity of hearing to the petitioners as well as considering the Central Excise Rules, 2001 and subsequent Rules and the Notification No.19/2004 dated 06.09.2014 issued under Rule 18 of the said Rules.
It is clarifed that the merits of the case not considered and the Revisional Authority shall decide the Revision Applications filed by the petitioners in accordance with law.
Petition disposed off.
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2024 (10) TMI 1127
Process amounting to manufacture or not, in terms of note 9 to chapter 38 of the Central Excise Tariff Act, 1985 - activity undertaken by the appellants in filling of imported Hepta Propane / FM-200 gas from bulk mother container to empty cylinders of different sizes - clearance of impugned goods are liable to pay Central Excise duty or not - levy pf penalty.
HELD THAT:- The records of the case indicate that the imported gas is refilled into seamless cylinders with super pressure in order to obtain the required 25 bar or 360 per square inch parameter, by use of nitrogen gas. Such filling up of container under heavy pressure cannot be equated to a process of treatment to render the product marketable, since there is no perceptible change brough out in the imported product. The facts of the case indicate that the imported FM 200 gas and nitrogen gas remained as it is, after they were refilled into the seamless cylinders. Therefore, it is opined that the assertion made by the learned Commissioner (Appeals) for treating the process of refilling as amounting to manufacture is not duly supported by factual evidences or any supporting technical documents.
The Circular No. 342/58/97-CX dated 08.10.1997 was issued by CBEC in the specific context of doubts raised in respect of receiving of liquid chemicals in bulk in containers and offloading the same into available empty vessel and consequent delivery of these materials in the very same condition to customers against orders. It had been specifically clarified that the question of whether an operation amounts to repacking or not, has to be decided on facts; and activities such as simply transferring the material from one container to another container may not be categorised under the scope of this description ‘packing’ for deeming it as manufacture.
The impugned order, insofar as it had categorised the activity undertaken by the appellants as amounting to manufacture, in the present case is not legally sustainable.
It is found that on a similar set of facts, in the case of M/S 3M INDIA LTD., SHRI SAMEER AGARWAL, SHRI SUNIL BANTHIYA, SHRI D.K. SURESH, SHRI AMIT LAROY, SHRI B. SRIKANTH, SHRI MILIND JOGLEKAR, M/S INDI CANS AND SHRI J. CHANDRAKANTH VERSUS COMMISSIONER OF CENTRAL EXCISE, BANGALORE-III AND OTHERS [2023 (2) TMI 729 - CESTAT BANGALORE], the Co-ordinate Bench of the Tribunal has dealt with the similar issue of deemed manufacture as per chapter note 38 and have held that injecting raw material into cans would not amount to adopting any treatment on the raw materials to render the product marketable.
The Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, VADODARA VERSUS M/S VADILAL GASES LTD. & ORS. [2017 (1) TMI 1311 - SUPREME COURT] have held that mixing of gases and making them available to consumers in smaller cylinders, did not make gases marketable as they did not chemically mix/react with each other and retained their character, without any new commodity being created and hence this would not amount to manufacture in terms of the chapter note.
Thus, activity undertaken by the appellants in filling of imported Hepta Propane / FM-200 gas from bulk mother container to empty cylinders of different sizes is not a process of manufacture in terms of note 9 to chapter 38 of the Central Excise Tariff Act, 1985. Therefore, the impugned order passed by the learned Commissioner (Appeals) cannot be sustained on merits.
Accordingly, the impugned order is set aside and the appeal is allowed in favour of the appellants.
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2024 (10) TMI 1126
Rejection of refund of certain amount which was debited by the appellant in response of audit objection raised - rejection for want of clear, related and relevant grounds under Section 11 B of Central Excise Act, 1944 - HELD THAT:- Both the authorities bellow have categorically concluded that the amounts were paid by the appellants, they deposited these amounts for the closer of the proceedings that would have been initiated against them for recovery of these amounts in response of the audit objection raised. Taking note of such deposit these proceedings were initiated against the appellants. Accordingly, the claim made by the appellants that amounts were paid in protest also do not have any merits and needs to be rejected. For this reason, these claims would be hit by the bar of limitation also.
Hon’ble Bombay High Court in the case of M/s National Leather Cloth Manufacturing Co. [2002 (7) TMI 111 - HIGH COURT OF JUDICATURE AT BOMBAY] has held that 'we see no reason to interfere with the finding given by the adjudicating authority in rejecting the Petitioners claim as time-barred. Since the payments made during the relevant period are not under protest and the refund claim is beyond the period prescribed under the Act, the adjudicating authority is justified in rejecting the claim as time-barred.'
There are no merits in these appeals - appeal dismissed.
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2024 (10) TMI 1059
Rebate / refund of sum so wrongly paid - Applicability of exemption notification No. 3/2006-CE for biscuits exported out of India - whether goods under consideration exported out of India answers the description of goods mentioned in column 3 of the notification? - HELD THAT:- The claim of the Petitioner is under Rule 18 of the Central Excise Rules, 2004, which provides that where any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and on fulfillment of such procedure, as may be specified in the notification. Section 2(d) of the Central Excise Act, 1944 defines “excisable goods” to mean goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 as being subject to a duty of excise and includes salt. Rule 2(d) of Cenvat Credit Rules, 2004 defines “exported goods” to mean excisable goods which are exempt.
Clause 1 (1.2) of Part V of the CBEC’s Excise Manual of Supplementary Instructions 2005 clarifies that in Rule 18 and in the notification allowing rebate, the expression ‘export goods’ has been used, which refers to excisable goods (dutiable or exempted) as well as non-excisable goods. It is further clarified that the benefit of the input stage rebate can be claimed on the export of all finished goods, whether excisable or not - the contention of the revenue that the goods exported were exempted under Notification No. 3 of 2006 and the petitioner was not required to pay duty and consequently cannot claim a rebate under Rule 18 is contrary to the said clarification. Notification No. 19/2004 dated 6th September 2004 as amended from time to time under Central Excise Rule 18 providing for procedure, conditions and limitations for the grant of rebate of duty do not state that if the Petitioner has wrongly paid excise duty (assuming the department’s contention on this is accepted), the rebate claim will not be considered.
Mahindra and Mahindra [2015 (9) TMI 403 - BOMBAY HIGH COURT] was a case where the goods were exempt under a particular notification. In contrast, in the present case before us, we have already observed above that the goods cleared by the Petitioner export are not covered by exemption notification No. 3 of 2006. In the case of Mahindra and Mahindra, the claim was not made under Rule 18 of the Central Excise Act, 2002, whereas in the present case before us, the claim was made under Rule 18 of the Central Excise Rules - It is a well-settled position that the decision is rendered in the context of the facts before the Court. If the facts are different, then the ratio of the said decision cannot be applied to another case mechanically. The decision is an authority for what it actually decides, having due regard to the factual conceptus. The ratio is of the essence, and not every observation found therein nor what may appear to logically flow from the various observations in the judgment. Therefore, the decision relied upon by the Revenue in the case of Mahindra and Mahindra Ltd. does not apply to the facts of the Petitioner’s case.
The Revisional Authority's order is set aside - the Respondents are directed to grant and sanction the Petitioner's rebate claims - The Petition is allowed.
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2024 (10) TMI 1058
Interpretation of Para 9.24 of Hand Book of Procedure 1997-2002 regarding bunching of products for DTA sale within the six-digit HS Code - Whether the Department can be permitted to raise eyebrows on the decision of the Development Commissioner? - HELD THAT:- In view of judgment in the case of Ginni International Ltd. [2001 (9) TMI 165 - CEGAT, COURT NO. IV, NEW DELHI], which got the stamp of approval from the Apex Court coupled with the ratio decidendi in the case of Virlon Textile Mills Ltd [2007 (4) TMI 6 - SUPREME COURT], it can be safely held that the revenue cannot go beyond or behind the decision of the Development Commissioner.
It is unable to read any such power in Section 3 (1) of the Central Excise Act, 1944 and Rule 100 (A) of Central Excise Rules, 1944, which were relied upon by the learned counsel for the appellant. Thus, there are no reason to interfere in this appeal.
The appeal fails and is hereby dismissed.
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2024 (10) TMI 1057
CENVAT Credit - duty on process loss during job work - case of the department is that in the process there is loss and on such quantity of process loss the duty is required to be paid - HELD THAT:- The issue in hand has been decided by this Tribunal in the various cases of the appellant itself. One of the decision which referred to earlier decision in the appellant’s case M/S VOLTAMP TRANSFORMERS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, VADODARA [2013 (2) TMI 337 - CESTAT AHMEDABAD] where it was held that ' In the present case, the loss on account of waste and scrap is only 2% which has not been argued to be unreasonable by the Revenue. It is also not the case of the Revenue that waste and scrap generated has been clandestinely removed or that no waste and scrap is generated at all in the processes undertaken by the Job worker of the appellant. There is also no binding clause in Rule 4(5)(a) of CENVAT Credit Rules, 2004 that any loss of inputs by generation of waste and scrap has to be compensated by reversing equivalent credit taken on the virgin metal.'
The impugned order is set aside and appeal is allowed.
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2024 (10) TMI 1056
Valuation of Barges - CENVAT Credit - violation of Rule 3 of Cenvat Credit Rules 2004 in the month of 2012 on the ground that input and input service were received in the factory before the manufacture and obtaining registration.
Whether the valuation of barges manufactured by the appellant is correct on the basis of value declared in the insurance policy or the value adopted by the appellant in terms of Rule 8 on the basis of costing method based on their ledger and books of account? - HELD THAT:- The appellant have valued the barges manufactured by them as per Rule 8 of Central Excise Valuation Rules, 2000 for the reason that barges were not sold but used captively by the appellant for providing output service. In this fact, the valuation has to be done correctly under Rule 8 on Central Excise Valuation Rules, 2000. The revenue sought to value the goods on the basis of value declared in insurance policy. We find that there is no provision for taking the value shown in the insurance policy particularly in the fact of the present case as submitted by the appellant the value shown in the insurance policy has so many addition such as Ship stores and other addition in the barge post manufacturing of the barges therefore the value shown in the insurance policy does not represent the correct value of the barges.
As regard the appellant’s computation of the value we find that there is a Chartered Accountant Certificate which is based on the ledger and books of account of the appellant where from the total cost of manufacture has been arrived at. There are nothing wrong in the method of valuation by the appellant particularly for the reason that the department has no basis to challenge such valuation and no evidence to contradict the value arrived by the appellant therefore we are of the view that the appellant have correctly arrived at the value of barges. Therefore the differential excise duty on the dispute of valuation will not be sustainable.
Whether the availment of Cenvat credit on the input and input service used in the three barges manufactured by the appellant prior to manufacture of such barges and before obtaining the Central Excise registration is correct or otherwise? - HELD THAT:- There is no dispute that all the input and input service were used in the manufacture of barges therefore even though the same was received before manufacture and even before obtaining the Central Excise registration but so long the input and input service are attributed to the manufacture of barges Cenvat credit cannot be denied. Even the transition provision provided under Cenvat credit rules permits for such credit, accordingly we do not find any reason for denying the Cenvat Credit. Hence the appellant are legally entitled for the Cenvat credit and the duty payment made out of such Cenvat credit is correct and legal.
There are no doubt that the valuation of barges manufactured by the appellant in terms of rule 8 of Central Excise Valuation Rules, 2000 is correct and legal. The department's attempts to apply the value declared in insurance policies are absolutely illegal and incorrect. Hence, the differential duty demand does not sustain. As discussed above the appellant have rightly availed the Cenvat credit in respect of input and input service used in the manufactured of said barges. Therefore the demand on both the counts that is on valuation as well as Cenvat credit is not sustainable. We find that the appellant have made out a very strong case on limitation also as the appellant have clearly declared about their availment of Cenvat credit as well as the valuation method to the department vide letter dated 16.05.2012 whereas the show cause notice for the period 01.03.2011 to 26.04.2012 were issued on 01.11.2016 and 28.06.2017.
Both show cause notices are not sustainable on the ground of limitation also therefore the demand is not sustainable on merit as well as on limitation - the impugned orders set aside - appeal allowed.
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2024 (10) TMI 1055
CENVAT Credit - non-maintenance of separate accounts for the exempted services i.e. trading activity for the period 01.04.2007 to 31.03.2011 - common input services - trading activities covered under exempted service by N/N. 13/2011-CE (NT) dated 31.03.2011 - time limitation - HELD THAT:- The demand under Rule 6(3) of Cenvat Credit Rules, 2004 was raised on the ground that there are some common input services on which credit has been availed which are also attributed to the trading activities which have been declared as exempted service under Notification 13/2011-CE (NT) dated 31.03.2011. It is found that firstly, the trading activity became exempted only w.e.f 01.04.2011, the contention of the revenue that it has a retrospective effect is absolutely illegal as per the settled law by the Apex court in the various judgments that wherever, any clarification is against the assessee the same will have prospective effect and cannot have retrospective effect. Secondly, merely by declaring a trading activity as exempted service under a deeming fiction, the same cannot have retrospective effect. Prior to the amendment of Notification No. 13/2011-CE (NT) whereby, the trading activity was made deemed exempted service, there was no clarity even with the department and therefore, the amendment was brought.
Firstly, there was a bonafide belief that trading activity will not attract any demand under Rule 6 (3), secondly, in fact, there is absolutely no suppression of fact on the part of the appellant.
The entire demand is liable to set aside on the ground of time bar alone - the impugned order is set aside - appeal is allowed.
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2024 (10) TMI 1054
Admissibility of refund claim in terms of Section 11B of the Central Excise Act, 1944 - deposit made during the investigation under protest - time limitation - HELD THAT:- Reliance placeed by the Lower Authorities on the definition for relevant date as per Explanation B (ec) to Section 11B and seeking to reject on the ground of limitation by relying on the date of the order of adjudicating authority for determining period of limitation of one year from the date of that order of the Additional Commissioner dropping the demand is totally miss placed. This clause is applicable only if at any point of time this amount was appropriated as duty and had arisen as refund on account of any judicial order. This is also evident from the ER1 Return formats.
There are no merits in rejection of the refund claim on the ground of limitation. Reliance placed in the impugned order on various decisions do not support the case of the revenue as these are the case where refund has arisen as a consequence of decision in the appeal etc.
As per proviso to Section 11B (2) the amount of unspent deposit lying as balance in the Appellant’s account current is to be refunded to the Appellant without being credited to the consumer welfare fund. Thus such an amount can never be hit by the provisions of unjust-enrichment in terms of specific exemption provided in respect of such claims.
There are no merits in the impugned order - appeal allowed.
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2024 (10) TMI 1053
Cenvat Credit - invoices issued by Merchant Exporter M/s. Shri Dutt India Pvt. Ltd. in relation to services provided for fulfilment of Minimum Indicative Export Quota - invoices issued by the U.P. Sugar Mills Cogen Association for Contribution to install Gateway System' to ensure about the surplus power exported or imported by a unit over a period - interest - extended period of limitation.
Admissibility of credit in respect of the contribution made by the appellant for installation of the gateway system - HELD THAT:- The issue is squarely covered by the decision of Hon’ble Supreme Court in case of Maruti Suzuki Limited [2009 (8) TMI 14 - SUPREME COURT] wherein it was held that 'assessee was not entitled to CENVAT credit. In short, assessee is entitled to credit on the eligible inputs utilized in the generation of electricity to the extent to which they are using the produced electricity within their factory (for captive consumption). They are not entitled to CENVAT credit to the extent of the excess electricity cleared at the contractual rates in favour of joint ventures, vendors etc., which is sold at a price.' - In light of the claim made by the appellant that they are reversing the credit on proportionate basis in respect of electricity wheeled out by them there are no merits in the impugned order to the extent it is in respect of denial of credit on this account.
CENVAT credit in respect of service received from the merchant exporter - HELD THAT:- The findings recorded in the impugned order are agreed to the effect that these services had no relationship howsoever negligible with manufacturing activities undertaken by the appellant - the impugned order that the definition of input service was amended in 2011 to delete “activities relating to business” from the inclusive part of definition. Thus the definition has become more restrictive than what was interpreted by the Hon’ble High Court. As no sort of nexus can be shown between the services received by the appellant from the Merchant Exporter, for fulfillment of export quota, by procuring and exporting the sugar of other manufacturers there are no merits in the contentions raised by the appellant on the ground of admissibility of this credit. These activities are more akin to trading of goods for export as have been held by the impugned order.
Extended period of limitation - HELD THAT:- The bonafide belief pleaded by the appellant need to be established and cannot be said to exist in isolation. The fact that appellant has been availing the CENVAT Credit against the invoices of the Merchant Exporter was never disclosed to the department, nor the tripartite agreement dated 16.12.2015 between the appellant, Merchant Exporter and M/s Shayadri SSK Ltd., Yeshwantnagar, Distt Satara, Maharashtra was ever disclosed - the fact that appellant has taken credit against the invoices of Merchant Exporter in respect of invoices which were in respect of services which were in no way related to the manufacturing activities of the appellant was never disclosed to the department and suppressed from the departmental authorities at the time of filing the return. It has been held that the discovery of certain facts during the course of audit which are not available on the returns is an act of suppression for invoking the extended period of limitation - the extended period has been correctly invoked the penalty imposed under Rule 15 of CENVAT Credit Rules, 2004 read with Section 78 of Finance Act, 1994 and Section 11AC of the Central Excise Act, 1944 to the extent it is in respect of this demand cannot be faulted with.
Interest - HELD THAT:- As the demand in respect of wrongly availed CENVAT Credit against the invoices of Merchant Exporters is upheld the demand of interest follows and cannot be faulted with.
Appeal allowed in part.
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2024 (10) TMI 1052
Valuation of Excise Duty - inclusion of 75% VAT/CST subsidy received from the State Government in the assessable value - HELD THAT:- The issue is no mere res integra. The Tribunal in the case of M/S. MAHINDRA STEEL SERVICE CENTRE LTD. VERSUS PRINCIPAL COMMISSIONER OF CGST & CENTRAL EXCISE, BHOPAL (M.P.) [2023 (12) TMI 476 - CESTAT NEW DELHI], has held that no Excise Duty is required for the VAT subsidy granted by the State Govt. This decision has been upheld by the Hon’ble Supreme Court.
The impugned order is set aside - appeal allowed.
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2024 (10) TMI 1051
Utilization of Cenvat Credit available under Basic Excise Duty for payment of Education Cess and Secondary & Higher Education Cess - time limitation - HELD THAT:- The issue is no more res-integra. This Bench in the case of M/S GODREJ CONSUMERS PRODUCTS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, SILIGURI AND M/S GERMAN REMEDIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, SILIGURI [2023 (9) TMI 58 - CESTAT KOLKATA] had relied on the judgment of Hon’ble High Court of Guwahati in the case of UNION OF INDIA VERSUS KAMAKHYA COSMETICS & PHARMACEUTICAL PVT. LTD. [2012 (7) TMI 902 - GAUHATI HIGH COURT], and has held 'there was no bar to utilize Cenvat credit of Basic Excise Duty for payment of Education Cess.' - Since the issue in the present case is identical. Respectfully following the decision of the cited case law, the appeal is allowed on merits.
Time limitation - HELD THAT:- The issue is that of interpretation which got clarified only after the issue reaching the Guwahati High Court, the Department has not made out any case of suppression on the part of the Appellant. Therefore, the confirmed demand for the extended period stands set aside on account of time bar also.
The appeal is allowed both on account of merit as well as on account of limitation.
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2024 (10) TMI 979
Challenge to arbitral award - excise duty payable on the goods in question - difference in classification of the goods by the petitioner, and the classification adopted by the Excise Department - Whether the disputes between the parties were arbitrable? - claims were on account of a “change” in taxes, within the meaning of Clause III.12.2 of the NIT, or whether the same constituted a revision in the POs? - entitlement to recover the price alongwith excise duty at the rate mentioned in the invoices raised by it - HELD THAT:- The respondent had anticipated the controversy, and kept the petitioner notified of the possibility of additional excise duty becoming payable on the goods. The evidence on record, including the certificate dated 30.09.2015, was sufficient to support the conclusion that the revenue authorities had, in fact, recovered excise duty at the rate of 12.36%, in respect of the goods in question. Even de hors the question of correctness of the classification adopted, this, in itself, would have been sufficient to allow the respondent’s claim on this account.
There are no reason to interfere with the manner in which the learned arbitrator has dealt with the documentary evidence placed before him. The assessment of evidence, and weight to be attached thereto, are ordinarily matters within the domain of the arbitral tribunal, which in the present case, has come to entirely reasonable and justifiable conclusions.
In the present case, the underlying legal argument was admittedly raised and contested during the course of hearing. The judgments cited in the impugned award, elaborate and elucidate upon the argument being analyzed in the award, but do not per se go to the root of the award. An award is liable to be interfered with, only if it contains errors which go to the root of the matter - Two caveats may, however, be placed. The first is that factual material must be disclosed to all parties, and the second is that it would remain open to the parties to assail the arbitral tribunal’s reliance upon the authorities and the conclusions derived therefrom, within the parameters provided in Section 34 of the Act.
There are no merit in the present petition, which is hereby dismissed.
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2024 (10) TMI 978
Admissibility of interest on Sundry Debtors as a deduction in finalization of Provisional assessments under Rule 9B of the Central Excise Rules, 1944 for the period prior to 1996 - violation of principles of unjust enrichment - HELD THAT:- In the instant case, it is not in dispute between the parties that the relevant period is between 01.04.1989 to 31.03.1998. The Provisional Assessment Order was passed on 12.03.1999. The said order became subject matter of challenge in appeal and then before the CESTAT. Upon remand by CESTAT by its order, dated 04.11.1999, the Order-In-Original (Assessment Order) could be passed only on 31.03.2004. In this backdrop, it is to be seen whether proviso to Rule 9B (5) of the Rules, 1944 can be pressed into service and refund can be declined by applying the concept of ‘unjust enrichment’.
In view of the settled position of law, it is clear that the entitlement to refund and finalization of the provisional assessment under Rule 9B of the Central Excise Rules, 1944 is independent from the provisions of refund under Section 11B of the Central Excise Act, 1944 - The procedure regarding unjust enrichment of finalization of provisional assessment will be applicable to the provisional assessment made after 1999 and not before that date as the proviso to Rule 9B in the form of sub-rule (5) did not have a retrospective effect. The doctrine of unjust enrichment therefore would not be attracted to the refunds pertaining to the finalization of the provisional assessment for the period prior to 1999 and sub-rule (5) to Rule 9B of the Central Excise Rules, 1944 will not operate retrospectively.
When delay in deciding the Assessment Order is not attributable to the assessee, the time consumed in passing the Assessment Order will not defeat the claim for refund on the ground of ‘unjust enrichment’ flowing from proviso to sub rule (5) of Rule 9B of the Rules 1944.
The impugned order of Tribunal is in consonance with law and no case is made out for interference. In view of settled legal position, no substantial question subsists and therefore, the appeal is dismissed.
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2024 (10) TMI 977
Calculation of duty on amortization cost of dies - non inclusion of amortization cost of dies used for manufacture of cylinder head and Break Shoe - suppression of facts or not - extended period of limitation - HELD THAT:- The entire demand was raised in the show cause notice on the basis of two invoices, the copy of which has also been produced on record; both invoices bearing nos. 20650 dated 31.03.2009 of M/s Sunbeam Auto Ltd. and Invoice No. 11434 dated 02.11.2009 of M/s M & M Machines Craft Pvt. Ltd; and the perusal of both the invoices shows that the appellant got the die of cylinder heads only and not the die of brake shoe as alleged by the Department.
Extended period of limitation - HELD THAT:- The appellant was subjected to regular audit in the year 2010 also and no such objection was ever raised by the Revenue. It is also found that the Revenue has not been able to bring on record any fact which shows that the appellant has suppressed the material facts to justify the invocation of extended period to confirm the demand. It is also found that the appellant has conceded the demand for the normal period on account of cylinder heads only which he is liable to pay.
The appellant is liable to pay the duty on account of cylinder heads only and that to for the normal period for the year 2009-10 only and the demand of duty on brake shoe by invoking the extended period of limitation is not sustainable and therefore, the same is set aside and the duty liability for the normal period along with interest is confirmed and for quantification of the same, the case is remanded back to the Original Authority to determine the same.
Appeal allowed by way of remand.
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2024 (10) TMI 976
Non-payment of duty - Classification of goods - Minute Maid Nimbu Fresh - to be classified under the tariff item 22029020 as “Fruit pulp or fruit juice based drink” or under tariff item 22029020 as "Lemonade."? - HELD THAT:- The issue in the present appeal is no more res integra and is squarely covered by the decision of the Larger Bench of the Tribunal in the case of Brindavan Beverages Pvt. Ltd. & Others vs. CCE & ST, Hapur [2019 (10) TMI 762 - CESTAT ALLAHABAD (LB)] whereby it was held that the product MMNF is classifiable under Tariffs Sub-heading 22029020 as “fruit pulp or fruit juice-based drink”.
There are no infirmity in the impugned order and accordingly the same is sustained - the appeal filed by the Revenue is dismissed.
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2024 (10) TMI 975
Gross violation of the CBEC instructions - precedent value of CESTAT decisions - Revenue filed the appeal before the first Appellate Authority without specifying any grounds or reasons why the order of the Tribunal had been wrongly followed by the Adjudicating Authority - HELD THAT:- From perusal of the section specifically 35 R (4) it is evident that this Section, is applicable only for the Commissioner (Appeals) and Appellate Tribunal, and it provides that these authority shall while hearing any appeal shall have regard to circumstances under which the earlier order has been accepted and not challenged before the higher appellate forum by the Department. Above Section is in no way setting aside the well known principle of judicial precedents and the binding nature of the order of the higher Appellate Authority it only provides that when an order has been accepted on monetary limits there should be examination of the issue and order passed either by distinguishing the order or else by following the order - All the authorities below Tribunal would be bound by the earlier order of Tribunal.
In the impugned order no ground has been stated from the revenue appeal filed before the said authority which ran contrary to the observation made by the Tribunal in the earlier order dated 15.05.2017. In such a situation impugned order setting aside the order of original authority just for the reason that earlier order of Tribunal was accepted on the monetary grounds cannot be justified. Impugned order even do not record that order of Tribunal was held not acceptable by the reviewing authority to be not acceptable on merits but accepted the same in view of the Board Instruction prescribing the monetary limit for filing the appeal to higher forum.
From the order of the original authority it is evident that the demand notices were kept in the call book awaiting the decision of the Tribunal against the order confirming the demand made by the Show Cause Notice mentioned at Sl. No. 1. After the decision of the Tribunal setting aside the said order they have been taken out from the call book and adjudicated as per the order of the Tribunal.
There are no merits in the impugned order without specifying any grounds for differing with the available order of the higher Appellate Authority - appeal allowed.
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2024 (10) TMI 898
Challenge to SCN based on statements recorded in the past - Jurisdiction of the court to interfere at the stage of show cause notice issuance - HELD THAT:- Unless a case of the impugned show cause notice being ex-facie without jurisdiction is made out, we are usually not inclined or required to interfere at the stage of issue of the show cause notice. In this case, the impugned show cause notice does not attract the vices indicated in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others [1998 (10) TMI 510 - SUPREME COURT].
In Whirlpool, the Hon’ble Supreme Court has explained that writ petitions may be entertained against show cause notices where the Petitioner seeks enforcement of any of the fundamental rights, where there is a violation of the principles of natural justice, or where the order or proceedings are wholly without jurisdiction or vires of the Act, is challenged.
In Special Director and Another Vs. Mohd. Ghulam Ghouse and another [2004 (1) TMI 378 - SUPREME COURT] the Hon’ble Supreme Court has held that unless the High Court is satisfied that the show-cause notice was totally non-est in the eyes of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine. The writ petitioner should invariably be directed to respond to the show cause notice and raise all defences and contentions highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue the recipient can even urge before the authority issuing the notice. Such issues can also be adjudicated by the authority initially issuing the notice before the aggrieved party could approach the Court.
In Malladi Drugs and Pharma Limited Vs. Union of India and another [2004 (3) TMI 67 - SC ORDER] the Hon’ble Supreme Court held that the High Court was absolutely correct in dismissing the writ petition against the mere show cause notice. The High Court, by the impugned judgment, held that the appellant should first raise all the objections before the authority that has issued the show cause notice. If any adverse order was passed against the appellant, liberty was granted to approach the High Court.
Petition dismissed.
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2024 (10) TMI 897
CENVAT Credit in respect of input and/ or input service used in the manufacture of goods cleared at 2% duty under Notification No.01/2011-CE - HELD THAT:- In the present case, it is not the case of the department that the appellant have taken Cenvat Credit in respect of any input or input service which were used in the manufacture of excisable goods which are cleared by availing the Notification No.01/2011-CE dated 01.03.2011. As per facts the only charge of the department is that the appellant have utilized the Cenvat Credit for payment of 2% duty on the excisable goods cleared under Notification No.01/2011-CE. - there are no restriction for the assessee to utilize the Cenvat Credit which was correctly and legally availed on the input and input service which were used in the manufacture of goods cleared at the rate of 6%. Therefore, only restriction is the assessee is barred to take the Cenvat Credit on input and/or input service used in the manufacture of excisable goods cleared under Notification No.01/2011-CE which is not the case here. Therefore, the appellant have not contravened the condition of Notification No.01/2011-CE.
The appellant have reversed the amount of Cenvat Credit utilized for payment of 2% excise duty along with the payment of interest. After payment of Cenvat credit which was utilized along with the payment of interest, the situation becomes as if no Cenvat Credit has been availed.
The impugned order is not sustainable, hence, the same is set aside - Appeal allowed.
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