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Central Excise - Case Laws
Showing 261 to 280 of 81317 Records
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2024 (9) TMI 1355
Valuation of the goods cleared by the appellant under section 4 of the Act read with Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - follow up demand for an earlier order passed for the period October 2010 to July, 2015 - Extended period of limitation - HELD THAT:- This bench had, by final order No. 51135 of 2022 dated 02.12.2022 [2022 (12) TMI 450 - CESTAT NEW DELHI] held that 'Evidence in the case is insufficient to hold that the appellant and its buyers Vandana and Shivali are interconnected undertakings and there is no allegation or evidence that they are related in any other manner. Even if they are inter-connected undertakings but are not related in any other manner, valuation has to be done as per Valuation Rule 10(b) as if they are not related persons and the demand would not sustain.' - This order was passed setting side the order-in-appeal dated 15.02.2018 passed by the Commissioner (Appeals) for the relevant period.
In the present appeal, the Assistant Commissioner and the Commissioner (Appeals) followed the previous order of the Commissioner (Appeals) dated 15.02.2018. Since the order dated 15.02.2018 is set aside, this appeal also needs to be allowed and the demand needs to be set aside.
The impugned order is set aside - appeal allowed.
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2024 (9) TMI 1354
100% Export Oriented Unit (EOU) - Utilization of cenvat credit for payment of duty on goods cleared to domestic tariff area (DTA) by an Export Oriented Unit (EOU) - appellant discharged the said duty liability as per Notification 52/2003 but by utilizing the cenvat credit - HELD THAT:- From the facts of the case, it is obvious that the amount to be paid at the time of clearance of imported goods to DTA in these circumstances is custom duty and therefore, any demand of duty in respect of such goods can only be customs duty. Customs duty cannot be discharged by utilizing cenvat credit as the cenvat credit rules do not prescribe such utilization. However in the instant case, no demand of custom duty has been made but demand of Central Excise duty has been made.
From the decision in MATRIX LABORATORIES LTD AND MYLAN LABORATORIES LTD VERSUS COMMISSIONER OF CENTRAL TAX MEDCHAL - GST (VICE-VERSA) [2023 (6) TMI 458 - CESTAT HYDERABAD] also it becomes clear that in respect of imported inputs cleared by EOU only demand of custom duty can be made under Section 28 of the Customs Act, 1962 in respect of inputs obtained duty free cleared to DTA by EOU, the same can be cleared on payment of Central Excise duty and in such cases, notice under Section 11A of the Central Excise Act, 1944 can be raised - In the instant case, the notice has been issued invoking Section 11A(5) of the Central Excise Act and same is not proper provision for demanding the Custom duty. In the instant case, no violation of provision of Notification 52/2003 has been cited for demanding the said duty. The provisions of Section 28 of the Customs Act have also not been invoked and consequently, the show cause notice issued under Section 11A(5) of the Central Excise Act, 1944 for recovery of custom duty is void ab initio.
The proceedings initiated by said show cause notice cannot, therefore be sustained - The impugned order is set aside and appeal is allowed.
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2024 (9) TMI 1301
Clandestine removal - Penalty u/r 26 of the Central Excise Rules, 2002 - Appellant was the in-charge Managing Director - error in law in upholding the Order in Original and confirming the penalty under Rule 26 of the Central Excise Rules, 2002, without specifying which particular clause of Rule 26 - penalty under Rule 26 can be imposed without there being any proposal and order for the confiscation of the goods in question or not - reliance placed upon the statement partly - mens rea.
HELD THAT:- On bare perusal of the Rule 26, it is clear that any person who is in any way concerned in removing the excisable goods which he knows or has reason to believe are liable to confiscation under the Act or the Rules shall be liable to a penalty. Admittedly, in the facts of the case, the appellants were concerned with the removal of the goods by the Company and from the statement of Mr. Narendrabhai Solanki which was recorded during the course of investigation, there is a clear admission on his part.
It cannot be said that the Adjudicating Authority or Tribunal has committed any error in invoking Rule 26 of the Rules for levy of the penalty. The contention raised on behalf of the appellants that the adjudicating authority has failed to point out which of the Sub-rule is applicable in the facts of the case is without any basis inasmuch as on perusal of Rule 26 of the Rules, it is clear that the Sub-rule (2) would never be applicable to the facts of the case as it pertains to the person who issues invoices or any other documents.
The reliance placed on the decision of the Hon’ble Apex Court in case of the Amrit Foods [2005 (10) TMI 96 - SUPREME COURT] would not be applicable in the facts of the case as the appellants were put to notice as to the exact nature of contravention for which the appellants were made liable for penalty under Rule 26 of the Rules. As the show-cause notice and the Order-in-Original have explained in detail about the nature of the offence for which the penalty is levied, it cannot be said that there is a breach of any of the requirement for levy of penalty by the respondent-authority. With regard to the contention raised on behalf of the two appellants namely, Devendra Ambalal Thakkar and Jaykant Ambalal Patel, it is required to be noted that both of them have abstained from investigation and have not co-operated for recording their statements and in spite of that the respondent-authority is not supposed to make further inquiries when the facts are not in dispute to the effect that both of them were holding the charge of the President and the Vice-President who having knowledge of the affairs of the Company.
Considering the concurrent findings of fact arrived at by the both the authorities below, we are of the opinion that no question of law, much less any substantial question of law arises from the impugned orders passed by the CESTAT.
The appeals therefore being devoid of any merit, are accordingly dismissed.
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2024 (9) TMI 1247
Applicability of the N/N. 33/99-CE dated 08.07.1999 as amended - DIC certificate issued dated 10.05.1993 could form the basis for determination of installed capacity during pre-expansion period or not - cut off date was to be treated on or after 24.12.1997 or not - HELD THAT:- The show cause notice, in relation to the period running from July, 1999 to May, 2002, was issued on 03.10.2002, whereas the show cause notice relevant for the present appeal was issued on 05.09.2003, which was in relation to the period July, 1999 to November, 2002. Admittedly, the subsequent show cause notice dated 05.09.2003 includes the period July, 1999 to May, 2002, for which the CESTAT has already passed an order in favour of the respondent, which has attained finality and, therefore, it is not open for the Revenue to again -agitate the said issue by way of issuing a fresh show cause notice. The action on the part of the Revenue of not challenging the decision of the CESTAT in relation to the period July, 1999 to May, 2002, which is included in the subsequent show cause notice dated 05.09.2003, disentitles it from challenging the same.
The Hon’ble Supreme Court has disallowed the Revenue to take different stand in the same situation in BIRLA CORPORATION LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE [2005 (7) TMI 104 - SUPREME COURT]. The Hon’ble Supreme Court has observed 'assessee is held to be entitled to MODVAT Credit'.
Taking into consideration the fact that the issue regarding availment of benefit by the respondent of the Notification dated 08.07.1999 has already been settled in favour of it by CESTAT, vide order dated 20.01.2005, in relation to the period running from July, 1999 to May, 2002 and the same has attained finality because the Revenue has accepted the said decision and has not challenged it further in appeal or other proceedings, there are no case for interference.
The present Central Excise Appeal is dismissed.
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2024 (9) TMI 1246
Entitlement to interest on excess duty paid during provisional assessment period - whether the appellant is entitled to interest of Rs.1,15,23,115/- on finalisation of provisional assessment for the period 2002-03 to 2009-10 on the amount of excess duty paid by the appellant? - HELD THAT:- It is found that pursuant to the finalisation of provisional assessment, after adjustment of the duty paid, the liability has been calculated in the respective orders. However, since the method for calculation of interest i.e. whether interest be calculated after expiry of one month from the due date of payment of duty or the date on finalisation of the provisional assessment of the duty liability be taken into consideration, was in dispute and pending before the honourable High Court of Karnataka in COMMISSIONER OF C. EX., MYSORE-I VERSUS JK. INDUSTRIES LIMITED [2011 (3) TMI 373 - KARNATAKA HIGH COURT], the quantum of interest on the excess duty paid by the appellant and also interest due on the duty short paid could not be calculated and kept pending.
On finalisation of the pending issue by the aforesaid judgement, the applicant approached the Department informing the amount of interest on the excess duty paid during the period 2002-03 to 2009-10 applying the said formula is Rs.1,15,84,533/- and the interest payable to the Government on duty short paid is Rs.63,71,217/-. The appellant requested to adjust the interest due to the Government against interest payable to the appellant, and to refund balance amount after adjustment. The authorities below had rejected the said claim on the ground that the final order computing the duty has not been challenged and therefore the interest cannot be released to them after the order of the Hon’ble High Court.
Since the appellant had paid the interest due to the Government amounting to Rs.63,71,217/- for the said period in absence of any demand notice to them, there is no valid reason not to release/refund the interest amount of Rs.1,15,84,553/-to the appellant on the excess duty paid during the period in question when the issue of relevant date for computing interest amount on finalisation of provisional assessment settled by the Hon’ble Karnataka High Court.
The impugned order is set aside and appeal is allowed.
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2024 (9) TMI 1245
Liability of appellant, principal manufacturer, to pay Excise Duty on waste and scrap arising at the job worker’s factory and cleared by the job 2 worker without payment of duty for the disputed period - raw materials sent to job workers for conversion in terms of N/N. 214/86--CE dated 25.03.1986 - HELD THAT:- The Tribunal in M/S. GREAVES COTTON LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE CHENNAI [2024 (6) TMI 1398 - CESTAT CHENNAI] had considered the very same issue in the appellant’s own case, where it was held that 'The said issue stands decided by the Tribunal in the appellant’s own case in M/S. GREAVES COTTON LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE CHENNAI [2024 (5) TMI 1470 - CESTAT CHENNAI] has held that 'the appellant is not the manufacturer of the waste and scrap and therefore, there is no liability on the appellant to pay the duty on the waste and scrap manufactured at the job worker’s end. Further, the provision of Rule 4(5)(a) of the CENVAT Credit Rules, 2004 nowhere states that the waste and scrap generated at the job worker’s end makes the principal manufacturer liable to payment of duty on such waste and scrap.'
The impugned order cannot sustain. The same is set aside. The appeal is allowed.
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2024 (9) TMI 1244
Denial of benefit of exemption notification dated 01.03.2002, as amended - recovery of central excise duty in terms of the proviso to sub-section (1) of section 11A of the Central Excise Act, 1944 - demand of interest and penalty - invocation of extended period of limitation.
Extended period of Limitation - whether the appellant had suppressed facts from the department with an intent to evade payment of central excise duty? - HELD THAT:- When the records were duly maintained by the appellant and intimation was also given in form D-3 to the jurisdictional division and range offices, it was for the Officers to put the appellant to notice if there was any discrepancy in the information contained in these forms. There is, however, nothing on the record to indicate that the appellant was ever put to notice about any discrepancy. This apart, audits were regularly conducted for the period from December 2003 to March 2006 and April 2003 to April 2004, but no discrepancy was noticed by the officers conducting the audit. The appellant had also maintained a register for fly-ash stock on monthly basis for use of fly-ash above 25% by weight and the appellant had claimed exemption from payment of central excise duty under the notification dated 01.03.2002 since fly-ash of over 25% by weight was used in the manufacture of AC Pressure Pipes.
The appellant had not suppressed facts relating to use of fly-ash by more than 25% by weight in the manufacture of AC Pressure Pipes. This is for the reason that information as contemplated under the Trade Notice was provided by the appellant to the department, and most importantly information contained in Form D-3 relating to receipt of fly-ash. The show cause notice nor the impugned order have denied the providing of such information by the appellant to the department. The show cause notice merely alleges that subsequent investigation revealed that the appellant had manipulated the records regarding the actual receipts of fly-ash - There is no reason given in the show cause notice to conclude that the appellant had suppressed facts with an intent to evade payment of central excise duty nor the impugned order passed by the Commissioner gives any reason as to why the appellant had suppressed facts with an intent to evade payment of central excise duty. In fact, the order passed by the Commissioner states that suppression means failure to disclose full information with intent to evade payment of duty. It is not so. The department has to establish that not only the assessee suppressed facts but also that such suppression was with an intent to evade payment of duty.
The provisions of section 11A (4) of the Central Excise Act, which are as similar to the provisions of section 11A (1) of the Central Excise Act, came up for interpretation before the Supreme Court in PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [1995 (3) TMI 100 - SUPREME COURT]. The Supreme Court observed that section 11A (4) empowers the Department to reopen the proceedings if levy has been short levied or not levied within six months from the relevant date but the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts.
In EASLAND COMBINES VERSUS COLLECTOR OF C. EX., COIMBATORE [2003 (1) TMI 107 - SUPREME COURT] the Supreme Court observed that for invoking the extended period of limitation, duty should not have been paid because of fraud, collusion, wilful statement, suppression of fact or contravention of any provision. These ingredients postulate a positive act and, therefore, mere failure to pay duty which is not due to fraud, collusion or wilful misstatement or suppression of facts is not sufficient to attract the extended period of limitation.
It is, therefore, clear that the suppression of facts should be deliberate and in taxation laws it can have only one meaning, namely that the correct information was not disclosed deliberately to escape payment of duty.
In THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS AND ANOTHER VERSUS M/S RELIANCE INDUSTRIES LTD. AND COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX VERSUS M/S RELIANCE INDUSTRIES LTD. [2023 (7) TMI 196 - SUPREME COURT] the Supreme Court held that if an assessee bona-fide believes that it was correctly discharging duty, then merely because the belief is ultimately found to be wrong by a judgment would not render such a belief of the assessee to be mala fide. If a dispute relates to interpretation of legal provisions, it would be totally unjustified to invoke the extended period of limitation. The Supreme Court further held that in any scheme of self-assessment, it is the responsibility of the assessee to determine the liability correctly and this determination is required to be made on the basis of his own judgment and in a bona-fide manner.
What, therefore, transpires from the aforesaid decisions is that there can be a difference of opinion between the department and an assessee. An assessee may genuinely believe that duty is not leviable, while the department may believe that duty is leviable. The assessee may, therefore, not pay duty in the self-assessment carried out by the assessee, but this would not mean that the assessee has wilfully suppressed facts. To invoke the extended period of limitation, atleast one of the five necessary elements must be established and their existence cannot be presumed merely because the assessee is operating under self-assessment.
In the present case, the appellant had not suppressed any facts from the department, much less with an intent to evade payment of central excise duty. The extended period of limitation could not, in view of the aforesaid decisions, have been invoked in the present case even if the returns were self-assessed.
Thus, as the extended period of limitation contemplated under the proviso to section 11A (1) of the Central Excise Act could not have been invoked, the impugned order dated 31.03.2021 passed by the Commissioner deserves to be set aside as the entire demand is covered under the extended period of limitation.
The impugned order dated 31.03.2021 passed by the Commissioner is, accordingly, set aside - Appeal allowed.
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2024 (9) TMI 1171
Non-inclusion of handling charges in the assessable value for excise duty purposes - recovery of amount towards handling charges as well as inspection charges in the invoice from their buyers - whether the appellant charging equalized handling charges from their customers on excisable goods is includible in the assessable value for charging excise duty or otherwise?
HELD THAT:- This very issue in the appellant’s sister concern MESSRS MIRA INDUSTRIES VERSUS C.C.E. -AHMEDABAD-II [2023 (4) TMI 655 - CESTAT AHMEDABAD] this Tribunal has taken a view that the handling charges recovered from the customers is not includible in the assessable value.
The facts of the above case and the case in hand are absolutely identical. Therefore, following the judgment of Mira Industries, in the present cases the handling charges is not includible in the assessable value of the excisable goods. Accordingly, the demand in this respect is not sustainable.
Appeal allowed.
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2024 (9) TMI 1170
Classification of goods - Sulphur 90% WG with a brand name of "COSAVET FERTIS" - to be classified under sub heading 25030090 & 25030010 of Central Excise Tariff Act, 1985 or not - HELD THAT:- It is found that on the same product having same process department had issued various show cause notices and in all the show cause notices except the present one issue has been settled by this Tribunal in C.C. E-BHARUCH VERSUS SULPHUR MILLS LTD [2022 (10) TMI 732 - CESTAT AHMEDABAD] where it was held that 'there is no change in definition of ‘manufacture’ and ‘excisable goods’ under the Central Excise Act, nor it is there any new pronouncement of a Judicial or quasi-judicial forum affecting the concepts of manufacture or that of excisable goods or classification.'
Thus, the impugned order in the present case is not sustainable - appeal allowed.
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2024 (9) TMI 1169
CENVAT Credit - Inputs/capital goods - ISO Tank which is used for packing and transportation of the appellant’s excisable final product namely Di-methyl Sulphate (DMS) from factory to the consignee premises/destination - denial on the ground that the appellant have taken credit under capital goods account and the ISO tank is not capital goods - HELD THAT:- The appellant realising their mistake claimed the Cenvat credit on packaging material i.e. ISO tank considering as input during the adjudication process. The Learned Commissioner should have examined that whether such ISO tank falls under the category of inputs and accordingly decided the matter on that basis. We are of the view that merely because the appellant under a belief treated the ISO tank as capital goods and taken the credit under that account does not make them disentitled for the Cenvat credit, if otherwise available on ISO tank has input. Therefore, not considering this aspect by the adjudicating authority is clearly violation of principles of Natural Justice.
Merely because the appellant have taken the credit under the capital goods but if it is available under input, the credit should be extended. However, since the Commissioner has not examined the entire matter considering the ISO Tank as input the impugned order is not legal and proper.
The Learned Commissioner should re-examine the matter - the impugned order is set aside - matter remanded to the adjudicating authority for passing a fresh order - appeal allowed by way of remand.
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2024 (9) TMI 1168
Taxability - freight charged separately in the sale invoices of excisable goods - whether ‘freight’ constitute part of the transaction value of the excisable goods when shown separately in the invoice for the purpose of computation of excise duty in terms of provisions of Section 4 of the Central Excise Act, 1944 read with Central Excise Valuation Rules, 2000? - HELD THAT:- From the sample purchase order, the order acknowledgement and corresponding sales invoice it can be seen that the freight was charged separately over and above the sale price of the goods and it is also undisputed that the bill clearly shows that the goods were sold directly to the customers without taking to depot or any other place from where the goods are sold, therefore, in this fact it is ex-factory sale and the freight charges is not includible in the assessable value.
This issue has been considered time and again. In the case of Ispat Industries Limited [2015 (10) TMI 613 - SUPREME COURT] the Hon’ble Supreme Court observed 'Further, for the period 1.7.2000 to 31.3.2003 there will be no extended place of removal, the factory premises or the warehouse (in the circumstances mentioned in the Section), alone being places of removal. Under no circumstances can the buyer's premises, therefore, be the place of removal for the purpose of Section 4 on the facts of the present case.'
In view of the decision of Apex Court judgment in Ispat Industries Limited it is settled that in case of factory gate sale even though sale is on FOR basis the freight charges shown/ collected separately in the invoice shall not be included in the transaction value of excisable goods. Thus, demand on the said freight charges is not sustainable.
The impugned order is set aside - Appeal allowed.
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2024 (9) TMI 1167
Liability to pay Excise Duty - part of the Kerosene removed without payment of duty, availing exemption under N/N. 12/2012, having been mixed with MS and HSD losing the character of being an exempted product - HELD THAT:- The appellant No.1 is removing MS, HSD and SKO from their refinery. In the spirit of Section 4, the appellants are discharging duty on the quantity of goods removed by them by assessing the same in the condition in which they are removed by them. If a subsequent mixing happens at a later stage, duty liability, if any, cannot be fastened to the appellant No.1. Such duty liability, if any, can only be fastened to the appellant No.2 provided there is a provision to deem such mixing to be manufactured. This is not the case of the Department.
The Hon’ble Supreme Court in the case of Ispat Industries Ltd. [2015 (10) TMI 613 - SUPREME COURT] held that liability to pay excise duty arises at the place of removal. Hon’ble Supreme Court in the case of Dalmia Dadri Cement Ltd. [1987 (11) TMI 94 - SUPREME COURT] held that exemption is available if the product is intended to be cleared to PDS.
The impugned orders set aside - appeal allowed.
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2024 (9) TMI 1166
Valuation of Excise Duty - inclusion of freight charges in case of ex-factory sale as well as FOR sale in the assessable value of excisable goods - in agreements with the buyer, there is specific clause for charges of freight and collection thereof - freight charges are shown separately in the same invoice of the excisable goods - invocation of extended period of limitation - HELD THAT:- On this issue much water has flown and in the various judgments of the Tribunal as well as the Hon’ble Supreme Court, it was consistently decided that the freight charges shown separately in the invoice which is other than the price of the goods shall not include in assessable value of the excisable goods irrespective whether the sale is ex-factory or FOR sale.
In the case of Ispat Industries Ltd [2015 (10) TMI 613 - SUPREME COURT] the Hon’ble Supreme Court held 'When the goods were handed over to the transporter, the respondent had no right to the disposal of the goods nor did it reserve such rights inasmuch as title had already passed to its customer.'
The freight charges shown separately in the invoice for which there is a contract between the assessee and the buyers of the goods the said freight charges shall not include in the assessable value of the excisable goods.
Thus, in the present fact of the case, the freight charges collected by the appellant separately in the invoice in respect of transportation of excisable goods is not includible in the assessable value. Therefore, consequential demand of duty, penalty and interest will not sustain. Accordingly, the impugned order is set aside - appeal allowed.
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2024 (9) TMI 1165
Valuation of Excise Duty - inclusion of handling charges which consists of loading/unloading of goods, freight and transit insurance charged separately in the assessable value - Extended period of limitation - HELD THAT:- The issue involved is interpretation of valuation provisions under Section 4 of the Central Excise Act, 1944. All the transactions of the appellant have been duly accounted for and the goods were cleared under proper invoices and excise duty has been paid on the value which as per the appellant’s bonafide belief, is correct. Therefore the department was aware of all the activities performed by the appellant. Regular periodical returns were also filed wherein transaction of duty payment thereon were declared. In these facts, entire information was disclosed before the department and there is no suppression of facts. Accordingly, the demand for the extended period is not sustainable on the ground of limitation itself.
In identical issue, the Hon’ble Gujarat High Court in the case of Prolite Engineering Company vs. UOI [1990 (3) TMI 89 - HIGH COURT OF GUJARAT] has held that information which is not required to be disclosed or recorded by statutory provision or prescribed proforma does not amount to suppression or concealment - it is found that the appellant’s case is on better footing than that of the case before the Hon’ble High Court.
Thus, the demand beyond the normal period of limitation i.e. for April 2003 to February 2007 is liable to be set-aside.
Demand for the normal period - HELD THAT:- As regards freight and transit insurance, the issue is covered by Hon’ble Supreme Court decision in the case of CCE vs. Ispat Industries Limited [2015 (10) TMI 613 - SUPREME COURT]. However, regarding loading-unloading, if the said activity was carried out within the factory then the expenses are incurred before the place of removal therefore, same is prima-facie includible in the assessable value. However, if the said loading and unloading has taken place after the removal from the place of removal, in such case, the same may not be includible in the assessable value. However, this issue is to be reconsidered after verifying the facts. Accordingly, only for the issue of duty relates to loading-unloading of goods, the matter is remanded to the Adjudicating Authority.
The appeal of appellant company is partly allowed and partly remanded to the Adjudicating Authority.
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2024 (9) TMI 1074
Demand of differential duty - appellant did not submit CAS-4 Certificate issued by the Cost Accountant to the department - value was proposed to be determined as per 110% of value mentioned in the invoice raised to the sister concerned - whether the value at which the appellant have paid the duty is 110% of cost of manufacture of the excisable goods or otherwise?
HELD THAT:- The appellant admittedly worked out the cost keeping in mind that the same is 110% of cost of the manufacture. However, the appellant have on the safer side calculated higher value since the CAS-4 is always available only after the completion of the year. Subsequently, during the adjudication the appellant have submitted CAS-4 certificate for the entire period, the same was rejected by the Adjudicating Authority stating that the said certificate is Xerox copy. This approach of the adjudicating authority is arbitrary, absolutely illegal and in violation of principles of natural justice. When the adjudicating authority have seen Xerox copies of the CAS-4 certificate, before the rejecting the same on the ground that it is a Xerox copy, he must have asked original from the appellant. Therefore, he gravely erred is not complying the principles of natural of justice.
Since the adjudicating authority has observed that due to Xerox copy, a CAS-4 certificate cannot be accepted, at least the Learned Commissioner (Appeals) before him the original certificates were produced should have considered the same and after verification, the appeal could be decided accordingly.
The impugned order is not sustainable - Appeal allowed.
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2024 (9) TMI 1073
Valuation of Excise Duty - whether the freight and/or insurance charge is includible in the assessable value of excisable goods in the fact that the sale of the goods is on ex-factory basis? - HELD THAT:- The issue involved in the present case is no longer res-integra as the same has been decided for the earlier period in the appellant’s own case on the same nature of transaction of excisable goods.
The Tribunal in [2024 (5) TMI 194 - CESTAT AHMEDABAD] held that 'freight and/or insurance is not includable in the assessable value. Consequently, demand of duty on this count is not sustainable.'
In view of the above decision of the Tribunal in the appellant’s own case, the demand in the present case is not sustainable. Hence, the impugned order is set aside - appeal allowed.
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2024 (9) TMI 1072
Classification of goods - Drilling Rigs suitable for Drilling Wells and Blast Holes (Mining) which are generally mounted on the truck chassis/crawler during the period from 01.03.1986 to 29.02.1988 - to be classified under tariff heading No. 8430 or under chapter heading No. 8705? - eligibility for exemption N/N. 242/86-CE dated 03.04.1986 - HELD THAT:- There was no occasion for the appellant to claim the exemption Notification 242/86-CE dated 03.04.1986, for the reason that there was a dispute about classification as the appellant had claimed the classification under 84.30 as against the Revenue’s claim under 87.05. This dispute has been settled by the Hon’ble Supreme Court in the appellant’s own case reported at COLLECTOR OF CENTRAL EXCISE, BARODA VERSUS L. MP PRECISION ENG. CO. LTD. [2003 (12) TMI 57 - SUPREME COURT]. Only after the said judgment of the Hon’ble Supreme Court it has been settled that the goods manufactured by the appellant i.e. Drilling Rigs mounted on truck chassis/crawler is classified under chapter 8705. Once the classification is settled, the Notification No. 242/86-CE which is applicable to the goods falling under Chapter 8705 became eligible to the appellant.
In the case of M/S. FIBROTEX (PROCESSORS) VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI-IV [2015 (11) TMI 1587 - CESTAT MUMBAI] Tribunal has considered the similar issue wherein the facts was that initially the assessee had not claimed the benefit of notification but at a later stage the exemption was claimed and the same was extended to the assessee.
Thus, even though the assessee did not claimed the exemption notification which otherwise eligible to the assessee in the classification list the benefit of the same claimed at a later stage cannot be denied.
Condition of the notification that the appropriate duty of excise has been paid on the chassis of such vehicles and equipments used in manufacture of such vehicles - HELD THAT:- There is no case of the department that the chassis of vehicle on which the Drilling equipment was mounted and also on such equipment no duty paid. In this regard it is a settled law that all the goods available in the market are deemed to be duty paid. Therefore, the inference of the Revenue that at this stage the fact that whether the chassis and equipments used in the manufacture of special purpose motor vehicle is duty paid or otherwise has no relevancy - it is settled that chassis and equipments used for manufacture of special purpose vehicles are considered as deemed duty paid. Therefore, the condition of N/N. 242/86-CE stand complied for and the appellant is eligible for the said exemption.
The impugned order is set aside - appeal allowed.
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2024 (9) TMI 1071
Levy of Excise duty - moulds and fixtures manufactured and captively consumed for manufacture of other final products when such moulds and fixtures are sold by issuing commercial invoices but not removed from the factory - eligibility for exemption N/N. 67/95-CE dated 16.03.1995 - HELD THAT:- The issue is no longer res-integran the light of the decision of this Tribunal in the appellant’s own case COMMR. OF C. EX., VADODARA VERSUS AUTOMOTIVE STAMPING & ASSEMBLIES LTD. [2011 (9) TMI 878 - CESTAT AHMEDABAD] where it was held that ' It is an unconditional exemption which provides exemption to capital goods manufactured in a factory and used within the factory. It is not the case of the Revenue that goods have been removed from the factory at all. Once goods are manufactured and used in the same factory, the notification squarely applies.'
Thus, it can be seen that the facts in the above cited decision and the facts of the present case in the appellant’s own case are absolutely identical.
The present impugned order is not sustainable - Appeal allowed.
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2024 (9) TMI 1070
Refund of duty - whether the appellant have complied with the conditions of the Notification No. 12/2012-CE dated 17.03.2012 or not? - time limitation - Vehicle having a passenger capacity of less than 13 persons and gets registered as Taxi.
Procedural lapses and their impact on the refund claims - HELD THAT:- The basic condition for claiming the benefit of N/N. 12/2012-CE dated 17.03.2012 is that if the vehicle having a passenger capacity of less than 13 persons and gets registered as Taxi with the State Regional Transport authority, the applicable rate of excise duty is reduced by 20% and the same has to be refunded to the manufacturer and who in turn will refund to the dealer and finally to the ultimate customer. There is no denying of the fact that refunds which have been filed by the appellant fulfill all the conditions of the exemption N/N. 12/2012-CE dated 17.03.2012, prescribed under condition number 26 of the serial number 273 except that they have taken credit in PLA on 22.03.2018 i.e. after the period of six months from the payment of duty on the motor vehicles. The basic requirement is that vehicle has to be used as Taxi for the purpose of availment benefit of the exemption notification. This condition has properly been fulfilled and all the relevant documents have been provided by the appellant to the department while filing the refund claims.
The credit taken in PLA beyond the period of six months is only a procedural lapse and same cannot enable the department to reject the entire refund claims of the appellant, when the legislature provides that where after clearances of vehicles from the factory gate, a vehicles is used as Taxi. Same is entitled for concessional Excise Duty. Thus the substantive benefit of exemption notification cannot be denied to the appellant only on procedural lapse which has been made good at a later stage by the appellant.
Time limitation - rejection of refund claims of the appellant on the ground that the refund claim is hit by time bar inasmuch as no claim has been filed within six month from the date of clearances of the said motor vehicles - HELD THAT:- It is found from the record that the findings of the Commissioner (Appeals) are factually incorrect as the refund claims have been filed from 01.07.2017 to 27.12.2017 for clearances which have been affected from January 2017 to June 2017 - the condition normally mentioned that period of six months is applicable from the date of duty paid on the motor vehicles which have been cleared and which at a later dated registered as TAXI with the Regional Transport department. It is found that condition 26 of the said notification stands fully complied with the requirement and the refund claim is not barred by period of limitation.
The SCN nowhere alleges that the refunds have not been filed within a given time period as provided under condition number 26 of the aforesaid notification. Thus it clearly appears that the order-in-appeal has travelled beyond the allegations which have been made in the show cause notice. Therefore, the finding on time-bar given by the Commissioner (Appeals) is otherwise also legally not sustainable.
The impugned order-in-appeal is legally not sustainable - appeal allowed.
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2024 (9) TMI 1069
Reversal of Cenvat Credit - Invocation of extended period of limitation - appellant submits that the Adjudicating Authority has not given bifurcation of the items specifically on which the demand has been confirmed - HELD THAT:- The first SCN was issued on 05.05.2011 and second SCN was issued on 30.01.2011. He has clearly noted that the Show Cause Notices have not brought in any evidence to rely upon their allegations. After this, he has gone on to direct the officers of Headquarters Anti Evasion Unit to do the necessary verification and submit their findings which was done by them between 06.03.2013 to 07.03.2013. There is no legal sanctity to undertake such an exercise after the Show Cause Notice was issued.
Once the Show Cause Notice is issued and reply is filed by the Appellant, the Adjudicating Authority is required to consider the allegations vis-à-vis the replies filed by the Appellant and come to a conclusion. He cannot step into the shoe of the investigating authority and undertake a fresh investigation. In this case his undertaking of such an exercise has vitiated the entire adjudication process since the principles of natural justice have not been followed.
The observation of the Adjudicating authority clarifies that the goods in question have been used by the Appellant in their manufacturing process. Therefore, even on this count, the Appeals are allowed.
The impugned order is set aside - appeal allowed.
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