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Central Excise - Case Laws
Showing 281 to 300 of 81793 Records
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2025 (1) TMI 138
Recovery of CENVAT Credit with interest and penalties - manufacture of sugar and molasses - manufacture of dutiable and exempted goods - Appellant had availed and utilised Cenvat credit without maintenance of separate accounts - Whether the Appellant is liable to pay an amount equivalent to 5% / 6% on the value of Bagasse clearances in terms of Rule 6(3) of CENVAT Credit Rules, 2004? - HELD THAT:- The identical issues as involved in the present case, was also involved in the case of M/S. PONNI SUGARS (ERODE) LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, SALEM [2023 (10) TMI 876 - CESTAT CHENNAI] wherein Chennai Bench of this Tribunal has allowed the appeal by setting aside the demands of Cenvat credit.
Conclusion - In absence of Bagasse being a manufactured final product, the obligation of reversal of Cenvat Credit under Rule 6(1) of the Cenvat Credit Rules, 2004 is not attracted.
The impugned orders set aside - appeal allowed.
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2025 (1) TMI 137
CENVAT Credit - input service credit of the service tax paid on lease rentals and operation and maintenance charges of windmills - extended period of limitation - HELD THAT:- A perusal of the impugned order reveals that the Commissioner had observed from the above Agreement between the Appellant and M/s.ALWEL, the inputs which were used for operation and maintenance of windmills was used by M/s.ALWEL which is evident from the fact that the contract specified that the cost of operation and maintenance was to be borne by M/s.ALWEL. M/s.ALWEL was also responsible for the generation of electricity and they were in fact getting the windmills maintained and hence the appellant was in no way responsible for maintenance of windmills nor had they given any contract for doing so to M/s.ALWEL for operation and maintenance of windmills in question. A perusal of the above Agreement between the parties clearly indicates that the understanding was for supply of electricity and nowhere in the contract is it mentioned that M/s.ALWEL would be operating and maintaining the windmills on behalf of the Appellant.
The fact however remains that the doubt in the minds of the Adjudicating Authority remains unanswered, which, goes into the root of the issue, that is to say, there is no mention about the lease of the windmills in the Agreement between the parties, the agreement is only for supply of electricity and M/s.ALWEL was not at all operating and maintaining the windmills for the Appellant.
The Commissioner is justified in invoking the extended period of limitation.
Conclusion - The appellant was not entitled to input service credit and the extended period of limitation was justifiably invoked by the Revenue.
Appeal dismissed.
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2025 (1) TMI 136
Refund of amounts deposited - amount paid voluntarity or is paid under protest - rejection on the ground of being barred by limitation as provided by Section 11B of the Central Excise Act, 1944 - applicability of principles of unjust enrichment - HELD THAT:- It is evident that the amounts have been deposited as per the direction of the departmental officers in respect of certain shortages detected at the time of visit. The amounts so deposited on the direction of the departmental officer cannot be said to be voluntary deposit. Further appellant have contested the demand and have finally succeeded in getting the same set aside by the tribunal. As the appellant was contesting the demand the amount paid by them were necessarily not paid voluntarily but were paid under compulsion from the officer and were paid under protest.
Further it needs to be noted that the amounts paid by the appellant were in respect of the shortages of the raw material detected by the officers at the time of visit. The amounts deposited could not have acquired the character of duty till the time they have been cleared from the premises of the appellant. Tribunal has clearly held that the charge of clandestine clearance of these goods cannot be established. Hence the amounts deposited do not acquire the character of “duty”. The expressions used in the Section 11B are in respect of “refund of Duty” and not the refund of deposits made complying with the directions of the officers.
It is a settled law that any amount which becomes due to the appellant consequent to an Appellate order the deposits should have been refunded to the appellant - In case of GS. RADIATORS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, LUDHIANA [2004 (10) TMI 158 - CESTAT, NEW DELHI] it was held that 'such payment will be considered as payment under protest. Tribunal under its Final Order had given direction to give consequential relief to the appellants which should have been given by the department. But instead of giving them refund, they rejected it on time-bar which is not correct. In view of the above, I find that payment made by the appellants has to be considered as payment under protest and the refund should be allowed to them if otherwise in order.'
Conclusion - The amounts so deposited on the direction of the departmental officer cannot be said to be voluntary deposit. Payments made under protest during an ongoing dispute are not subject to the limitation period under Section 11B of the Central Excise Act, 1944. Such payments do not attract the doctrine of unjust enrichment.
There is no reasonable ground for rejection of the refund claim - Appeal allowed.
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2025 (1) TMI 67
Seeking a declaration that the adjudication proceedings which have remained pending for almost 12 years be held to be vitiated in law - challenge to SCN - challenge to final order of adjudication - HELD THAT:- The respondents allude to the matter having been placed in the call book for many years and thereafter proceedings being delayed on account of repeated adjournments being sought by the petitioner.
As was noticed in M/s Vos Technologies [2024 (12) TMI 624 - DELHI HIGH COURT], nothing constrained or detracted from the right of the respondents to proceed ex parte in case the adjudication proceedings were being unjustifiably delayed and frequent requests for adjournments being made. In fact, although the blame is sought to be deflected towards the petitioner, the principal ground for a failure to conclude with due expedition appears to be the matter having remained in the call book for many years and which fact is admitted to by the respondents themselves.
The final order dated 31 January 2023 as well as the SCN proceedings emanating from the impugned SCN dated 21 April 2011 is quashed - petition allowed.
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2025 (1) TMI 66
CENVAT Credit - inputs/capital goods - duty paid on tower materials, puff channels, shade & parts thereof and pre-fabricated buildings materials - immovable property or not - tower would qualify as “part” or “component” or “accessory” of the capital goods i.e. antenna or not - towers, shelter are capital goods or inputs in terms of Rule 2(a) or 2(k) of the Cenvat Credit Rules, 2004 or not - invocation of extended period of limitation.
HELD THAT:- Their Lordships of the Supreme Court, considering the said issue involved in M/S BHARTI AIRTEL LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, PUNE [2024 (11) TMI 1042 - SUPREME COURT] have held that 'Having held that the tower and pre-fabricated buildings (PFBs) are “goods” and not immovable property and since these goods are used for providing mobile telecommunication services, the inescapable conclusion is that they would also qualify as “inputs” under Rule 2(k) for the purpose of credit benefits under the CENVAT Rules.'
Conclusion - Thus, tower materials and PFBs are not immovable property and qualify as inputs under the Cenvat Credit Rules, 2004.
Appeal allowed.
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2025 (1) TMI 65
Availment of CENVAT credit - revision in rate of service (escalation of price) - violation of Rule 4A (1) of the Service Tax Rules, 1994 read with Rule 9(1)(f) of the CENVAT Credit Rules, 2004 - denial of Cenvat credit on the ground that the additional invoices were issued by the service providers much after the period of 14 days of completion of service - HELD THAT:- The CENVAT Credit availed by the appellant on the basis of supplementary invoices were rejected by the Ld. adjudicating authority on the ground that the said invoices were not issued within 14 days from from the date of completion of service or receipt of payment, whichever is earlier. It is observed that the issue is no more res integra as this Tribunal in M/S. USHA MARTIN LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, JAMSHEDPUR [2023 (5) TMI 719 - CESTAT KOLKATA] by relying on Hon’ble Madras High Court’s ruling in THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. JSW STEELS LTD., THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, [2017 (8) TMI 592 - MADRAS HIGH COURT] held that CENVAT credit cannot be denied to the service recipient on the ground that invoice was not issued by the service provider.
In Usha Martin Limited by relying on M/S DELPHI AUTOMOTIVE SYSTEMS (P) LIMITED VERSUS CCE, NOIDA [2013 (12) TMI 156 - CESTAT NEW DELHI] this tribunal has held that for the period prior to 01.04.2011, as Rule 9(1) did not make any distinction between invoice or supplementary invoice in respect of services, therefore, the term “invoice” in Rule 9(1)(f) of the CENVAT Credit Rules, 2004 has to be treated including “supplementary invoice”.
Conclusion - There is no dispute regarding the payment duty on the supplementary invoices. Also, there is also no dispute regarding the receipt of input services and using the same towards manufacture of dutiable goods. Thus, CENVAT credit cannot be denied to the Appellant on the basis of procedural irregularities, if any.
The impugned order is set aside - appeal allowed.
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2025 (1) TMI 64
Mis-declaration of MRP and/or alteration of MRP post removal of the goods prior to 01.03.2008 - Clandestine removal.
Mis-declaration of MRP and/or alteration of MRP post removal of the goods prior to 01.03.2008 - statements of various persons were recorded, cross examination not afforded - demand of differential Central Excise duty under the provisions of Section4A of Central Excise Act, 1944 - HELD THAT:- The issue has been decided by larger Bench of this Tribunal in the case of Ocean Ceramics Ltd. [2024 (1) TMI 1280 - CESTAT AHMEDABAD - LB] and subsequently on the answer given by the larger bench the division bench in the case of Ocean Ceramics& others [2024 (9) TMI 1490 - CESTAT AHMEDABAD] finally decided the issue of MRP in the favour of the assessees.
Clandestine removal - manufacture and clearance of 96646 boxes of ceramics tiles of various size and grades - demand based on statements of various persons - admissible evidence or not - HELD THAT:- The said demand is on the basis of the details available in the estimates/debit memos recovered from Appellant’s Mumbai and Delhi office and statements recorded by the investigating officers. It is noticed that in the said matter appellant requested for cross-examination of witnesses which was rejected by the Ld. Adjudicating authority. Further the director of Appellant’s company has also retracted his statement by filing affidavits. It was on records that Appellant have raised the dispute on statements of witness recorded during the course of investigation by investigating officers. Therefore the said statement cannot be relied upon as admissible evidence in terms of the provisions of Section 9D of the Act.
Reliance is placed on the ruling of the Hon’ble Punjab & Haryana High Court in the case of Jindal Drugs (Infra) [2016 (6) TMI 956 - PUNJAB & HARYANA HIGH COURT] wherein the Hon’ble High Court laid down the detailed procedure, inter alia, providing for cross-examination of the witness of the Revenue by the Adjudicating Authority and thereafter, if the Adjudicating Authority is satisfied that the statement of the witness is admissible in evidence than the Adjudicating Authority is obligated to offer such witnesses for cross-examination by the other side/assessee.
Statements recorded during investigation in the present matter, whose makers are not examination-in-chief before the adjudicating authority, would have to be eschewed from evidence, and it will not be permissible for Ld. Adjudicating Authority to rely on the said evidences. Therefore, none of the said statements were admissible evidence in the present case.
Also, there is nothing to indicate compliance with the strict stipulations contained in sub-sections (1) and (2) of Section 36B of the Act in the present case. Therefore no demand is sustainable on this ground also.
Conclusion - The reliance on statements without cross-examination and demands based on inadmissible computer-generated evidence were rejected.
Appeal allowed.
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2025 (1) TMI 63
Recovery of Central Excise duty on the clearances of scrap and waste during the period from April 2008 to March 2013 - demand confirmed solely relying upon the verification report submitted by the range superintendent, against which the Cenvat credit has been taken by the appellant and an observation was made that they are normal entries - HELD THAT:- The report itself does not provide the details of all entries against which Cenvat credit has been taken. The impugned order also in these proceedings presumed that there is a dispute that the scrap which has been cleared would have arisen out of cenvated as well as non-cenvated items of iron and steel. It does not identify and make categorical statement to the effect that the scrap has arisen out of cenvated capital goods. It is based on a presumption which arises in view of the said verification report. Such presumption cannot take place of proof and cannot be basis for confirmation of demand. Appellant has taken a categorical stand before the Adjudicating Authority that these scraps have arisen out of non-cenvated capital goods, some of them even prior to the insertion of Modvat/Cenvat credit scheme in respect of capital goods, this stand of the appellant was to be rebutted by the Adjudicating Authority in the impugned order by relying upon the suitable and concrete evidences. Presumption made against the appellant cannot be the ground for confirming the demand.
These scrap would have arisen not on account of any manufacture but on account of uses of capital goods. Over period of time such waste and scrap arising on account of reasons other than the activity of manufacture could not have been subjected to demand of central excise duty but should have been subjected to reversal of credit in the manner specified as per Rule 3 (5) of Cenvat Credit Rules, if the said capital goods were cenvated. In absence of any conclusion in respect of the facts that these capital goods were cenvated, it is found that impugned order proceeds only on the basis of presumption and assumption to confirm this demand.
Interest and penalties - HELD THAT:- As the demand itself is being set aside, penalties and interest imposed under Section 11AC and Rule 27 is also set aside.
Concusion - The burden of proof lies with the department to establish that the waste and scrap were generated from cenvated capital goods. Presumptions cannot replace concrete evidence in confirming duty demands.
Appeal allowed.
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2025 (1) TMI 6
Denial of Cenvat credit availed on the strength of invoices which are dated prior to amendment of Rule 4 vide Notification No. 21/2014-CE (NT) dated 11.07.2014 - As per amended rule, whether time limit of six months from the date of issue of the invoice for taking the credit, can be applied retrospectively to invoices issued before the amendment date - HELD THAT:- As per the facts of the present case though the appellant have availed the Cenvat credit belatedly in the month of August/September-2014, however, all the invoices related to such credit were issued before 11.07.2014. Therefore, in respect of those invoices, the amended Rule 4 vide Notification No. 21/2014-CE (NT) dated 11.07.2014 is not applicable and the credit could not have been denied on the ground of time bar.
In the case of Voss Exotech Automotive Pvt. Ltd. [2018 (3) TMI 1048 - CESTAT MUMBAI] the Mumbai Tribunal has held that 'the Notification No. 21/2014-S.T. (N.T.), dated 11-7-2014 should be applicable to those cases wherein the invoices were issued on or after 11-7-2014 for the reason that notification was not applicable to the invoices issued prior to the date of notification therefore at the time of issuance of the invoices no time limit was prescribed. Therefore in respect of those invoices the limitation of six months cannot be made applicable. Moreover for taking credit there is no statutory records prescribed the assessee’s records were considered as account for Cenvat credit. Even though the credit was not entered in so-called RG-23A, Part-II, but it is recorded in the books of accounts, it will be considered as Cenvat credit was recorded. On this ground also it can be said that there is no delay in taking the credit. As per my above discussion, the appellant is entitled for the Cenvat credit hence the impugned order is set aside.'
Conclusion - The time limit prescribed under Notification No. 21/2014-CE (NT) dated 11.07.2014 has no application in respect of the invoices issued prior to date of the said amendment in Rule 4 of Cenvat Credit Rules, 2004.
The impugned order is not sustainable - Appeal allowed.
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2025 (1) TMI 5
Reversal of Cenvat credit on inputs and input services used in the manufacture of exempted goods, specifically Di-Ammonium Phosphate (DAP), under Rule 6(3)(i) of the Cenvat Credit Rules, 2004 - by-product in the manufacturing process of copper products - exempt goods or not - HELD THAT:- Di-Ammonium Phosphate (DAP) is being manufactured by the appellant by using phosphoric acid and in-house manufacturing of the sulphuric has been obtained by processing sulphuric acid. It is an accepted fact that sulphuric acid is unintended product which emerges during the process of copper concentrate while manufacturing various types of copper products.
This Tribunal in the appellant’s own case, vide final order No. 12425-12427/2023 dated 02.11.2023 reported under [2023 (11) TMI 1070 - CESTAT AHMEDABAD] has held 'it is clear that any input/input services contained in any by- product/waste/refuse, Cenvat Credit cannot be varied or denied. With this statutory clarification demand under Rule 6 in respect of by-product is not applicable. This issue has been considered in various judgments as cited by Learned Counsel. Once it is established that the product in question is by-product then it is settled that in respect of by-product demand under Rule 6 will not sustain. Accordingly, in the present case also, Sulphuric Acid being a by-product, no demand under Rule 6 shall sustain.'
Thus, sulphuric acid which is an unintended by-product, has further been used by the appellant for manufacture of phosphoric acid and the same has further found use in the manufacturing of Di-Ammonium Phosphate (DAP) which is chargeable to 1% rate of Central Excise duty as provided in Notification No. 12/2012-CE dated 17.03.2012 - Since the Di- Ammonium Phosphate (DAP) has been manufactured by utilizing a product which has emerged as unintended by-product, following the various legal pronouncements including the Hon’ble Supreme Court decision in the case of BIRLA CORPORATION LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE [2005 (7) TMI 104 - SUPREME COURT] and in the case of Commissioner vs. Sterling Gelatin [2015 (10) TMI 557 - SC ORDER], it is held that even after the amendment to Rule 6 by Notification No. 6/2015-CE dated 01.03.2015, so far as demand of Cenvat credit pertaining to use of sulphuric acid/phosphoric acid for manufacturing Di-Ammonium Phosphate (DAP) is not sustainable.
Since the impugned order-in- original has not specifically mentioned the use of any input service on which Cenvat credit has been taken by the appellant while manufacturing and clearing Di-Ammonium Phosphate by the appellant and if so, he has to re- calculate the demand of Cenvat credit giving benefit of the fact that appellant is entitled not to reverse Cenvat credit on the inputs which have been availed on the copper concentrate while manufacturing various copper products.
Conclusion - Sulphuric Acid being a by-product, no demand under Rule 6 shall sustain.
The Adjudicating Authority has to segregate the demand of Cenvat credit into two segments, one which has been demanded on the primary inputs namely copper concentrate etc. and second, the demand on the use of common input and input services which have gone into manufacture of exempted DAP - matter remanded for fresh adjudication on the above terms - The appeals are allowed by way of remand.
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2024 (12) TMI 1538
Reversal of Cenvat credit on provisions made for slow-moving/non-moving inventory of stores and spares - Rule 3(5B) of the Cenvat Credit Rules, 2004 - HELD THAT:- The issue came up before this Tribunal in the appellant’s own case [2024 (10) TMI 1336 - CESTAT NEW DELHI], wherein it was held that '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.'
On going through the decision in the appellant’s own case, it is found that the facts are not in dispute that the appellant has made provisions in books of accounts for partial writing down the value in respect of the slow moving and non-moving of inventories and spares whereas the provision of Rule 3(5B) of Cenvat Credit Rules are applicable when the provision in the books of accounts, the stock/inventories have been written off which is not the case in hand.
Therefore, relying on the appellant’s own case, it is held that the provision of Rule 3(5B) of Cenvat Credit Rules, 2004 are not applicable to the facts of the present case, therefore, no demand is sustainable against the appellant. As no demand is sustainable against the appellant, no penalty is also imposable against the appellant.
Conclusion - The provisions made for slow-moving/non-moving inventory did not amount to a write-off under Rule 3(5B) of the Credit Rules, and thus, no demand for the reversal of Cenvat credit was justified.
The impugned order is set aside - appeal allowed.
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2024 (12) TMI 1531
Clandestine manufacture and removal of sponge iron - input-output ratio - electricity consumption - case of the Revenue is that to manufacture 1 MT of Sponge Iron 1.67 MT of iron ore is required and to manufacture 1 MT of Sponge Iron 162 KW power is required - extended period of limitation.
HELD THAT:- In this case demand sought to be raised against the Respondent on the basis of estimated production as per input/output ratio of 1:1.67MT and electric consumption is 162 KW for manufacture of 1 MT Sponge Iron. All these basis for confirmation of demand are on estimate basis and there is no tangible evidence has been brought by the Revenue on record from where the Respondent procure other raw materials to manufacture such a huge quantity of Sponge Iron like coal and iron ore.
In the case of Arya Fibres Pvt. Ltd. [2013 (11) TMI 626 - CESTAT AHMEDABAD] this Tribunal has laid down law for establish clandestine removal clearance in cases of allegation made of clandestine manufacture and clearance of the goods - As none of the test has been conducted to establish clandestine manufacture and clearance of the goods by the Respondent, therefore, the impugned demand are not sustainable against the Respondent.
Extended period of limitation - HELD THAT:- The periodical audit took place and no deficiency were found, no objections were raised regarding clandestine removal of goods by the Respondent, therefore, whole of the demand is also barred by limitation as Show Cause Notice has been issued by invoking extended period of limitation.
Conclusion - i) The allegations of clandestine production and removal require tangible evidence and cannot be based solely on theoretical calculations or expert opinions. ii) As none of the test has been conducted to establish clandestine manufacture and clearance of the goods by the Respondent, therefore, the impugned demand are not sustainable against the Respondent. iii) The demand was barred by limitation, as there was no evidence of fraud or suppression to justify the extended period.
Appeal of Revenue dismissed.
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2024 (12) TMI 1453
Cenvat Credit of duty of inputs which were not used to manufacture a new excisable goods - correctness of disallowing the demand of the Department for Cenvat Credit duty wrongly availed of by the assessee Under Rule 14 of the Cenvat Credit Rules, 2004, on the ground that it is against the tenets of Equity and Justice - HELD THAT:- It appears that the process undertaken by the assessee was cutting/slitting of imported CRGO coils of width more than 600mm to the width of less than 600mm. It also emerges from the record that the petitioner has paid more excise duty while clearing the final products under Chapter Heading No. 7226 1100 than the amount of Cenvat Credit availed on the duty paid on import of CRGO coils under Chapter Heading N. 7225 1100.
This Court in case of Creative Enterprise [2008 (7) TMI 311 - GUJARAT HIGH COURT] has held that 'it is apparent that the respondent has been held to be a manufacturer as defined in section 2 (f) of the Central Excise Act, 1944. The appellate authority has taken into consideration the activities carried on by the respondent assessee. The Tribunal is justified in holding that if the activity of the respondent assessee does not amount to manufacture there can be no question of levy of duty, and if duty is levied, modvat credit cannot be denied by holding that there is no manufacture.'
Conclusion - The assessee is entitled to Cenvat Credit in view of the fact that the Revenue has accepted the excise duty paid by the assessee on the clearance of final products, irrespective of the fact, whether it amounts to manufacture or not.
The issues decided in favour of the assessee and against the Revenue - appeal dismissed.
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2024 (12) TMI 1452
Option to forego unconditional exemption to final products by virtue of N/Ns. 6/2002 dated 1.3.2002 and 6/2003 dated 1.3.2003 at the relevant time and pay duty at the Tariff rate and claim for Modvat/Cenvat credit on inputs used in the manufacture of final products - demand of Cenvat credit in a situation where the assessee has paid the duty on the final products and utilized the credit on inputs for payment of final products - amendment provided in Section 5A by inserting sub-section 1A as is clarificatory nature or in prospective.
Whether the appellant could have exercised option with regard to payment of duty or to avail the exemption Notification as per Section 5A of the Central Excise Act, 1944? - HELD THAT:- Once, the final product is exempted, if the appellant would not have paid any duty, there was no question of claiming any Modvat/Cenvat credit. However, in the facts of the case, the appellant has paid duty on the final products inspite of the exemption Notification being issued by the Central Government, the same was claimed as Modvat/Cenvat credit resulting into revenue neutralization - the appellant once having paid the duty is bound to get the Modvat/Cenvat credit but, for the insertion of Clause 1A by the Finance Act, 2005 which specifically declares that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods. Thus, after the insertion the appellant-assessee was prohibited from payment of excise duty on the exempted excisable goods and therefore, there is no question of getting any Modvat/Cenvat credit in view of such prohibition.
Whether the amendment to Section 5A by inserting sub-section 1A is clarificatory or prospective in nature? - HELD THAT:- The insertion of Section 1A cannot be said to be clarificatory but, it is substantive in nature as it prohibits the assesseee from payment of duty on the exempted excisable goods. The Hon’ble Apex Court in case of Commissioner of Central Excise, Pune Versus Pudumjee Pulp & Paper Mills Ltd. [2006 (4) TMI 132 - SUPREME COURT] observed 'it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods.'
The insertion of Clause 1A in Section 5A of the Central Excise Act is not clarificatory in nature but, it is substantive in nature and therefore, it would be optional for the appellant to avail the exemption of the excisable goods or to pay duty on such exempted excisable goods and therefore, the tribunal was not right in upholding the order passed by the respondents demanding for Cenvat credit where, the appellant had paid the duty on the final products and utilized the credit on inputs for payment of the final products.
Conclusion - It would be optional for the appellant to avail the exemption of the excisable goods or to pay duty on such exempted excisable goods and therefore, the tribunal was not right in upholding the order passed by the respondents demanding for Cenvat credit where, the appellant had paid the duty on the final products and utilized the credit on inputs for payment of the final products - the amendment provided in Section 5A by inserting Clause 1A is prospective in nature.
Appeal allowed.
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2024 (12) TMI 1451
Classification of goods - Siapton 10L and Isabion - classifiable as fertilizer under Central Excise Tariff Item No. 3101 00 99 of the first schedule of Central Excise Tariff Act, 1985 as declared by the appellant or Plant Growth Regulator falling under Central Excise Tariff Item No. 3808 93 40 as claimed by the Department? - HELD THAT:- Since the larger bench of this tribunal has finally decided the question in dispute in these appeals in [2024 (9) TMI 1655 - CESTAT AHMEDABAD (LB)], these appeals can be disposed of in accordance with the decision given by the larger bench. It was held by Larger Bench that '(i) A plant growth promoter cannot be equated with a plant growth regulator. A plant growth promoter only promotes the growth of the plant and does not inhibit it. On the other hand, a plant growth regulator inhibits, promotes or otherwise alters the physiological processes in a plant. The view to the contrary taken by the Division Bench in the referral order is not correct; and (ii) Siapton 10L and Isabion merit classification as fertilizers under ETI 3101 00 99 and not as a plant growth regulator under ETI 3808 93 40.'
Conclusion - The goods in question namely “Siapton 10L and Isabion” are correctly classifiable under Central Excise Tariff Item No. 31010099 and the same is not falling under Central Excise Tariff Item No. 38089340.
The impugned orders are set aside - Appeals are allowed
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2024 (12) TMI 1450
Levy of central excise duty - clinker used for captive consumption by availing exemption under N/N. 67/95-CE dated 16.3.1995 for manufacturing of cement that was cleared against International competitive bidding by claiming exemption under Sr No. 336 of N/N. 12/2012-CE dated 17.03.2012 - HELD THAT:- The identical issue in the appellant’s own case has been decided by this Tribunal consistently in two decision of this Tribunal reported as Shree Digvijay Cement Co Ltd [2018 (11) TMI 300 - CESTAT AHMEDABAD]. The only difference is that the said decisions were given with reference to the exemption Notification No. 06/2006-CE dated 01.03.2006 Sr. No. 19 which is pari materia to the exemption entry No. 336 Notification 12/2012-CE dated 17.03.2012. Therefore, the issue is no longer res-integra.
Conclusion - The appellant is entitled to the exemption under Notification No. 67/95-CE for clinker used in the manufacture of cement cleared against international competitive bidding.
The impugned order is set aside - appeal allowed.
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2024 (12) TMI 1449
Benefit of SSI exemption under N/N. 8/2003 dated 01.03.2003 - exceeding the threshold turnover Rs. 400 lakhs in the preceding Financial Year - whether the appellant is eligible for the benefit of N/Ns. 89/95-CE dated 18.05.2005 in respect of other products viz., Acid oil, Fatty acid, Waxes and Gums, which are generated during the course of manufacture of refined oil and if they were held eligible, whether they are eligible for the benefit of SSI N/N. 8/2003-CE dated 01.03.2003 as amended?
HELD THAT:- The issue of products viz., acid oil, fatty acid, gums and waxes, which are generated during the process of refining of crude edible oil to produce refined edible oil has been the subject matter in the case of M/s. Ricela Health Foods [2018 (2) TMI 1395 - CESTAT NEW DELHI], Vinayak Agrotech [2017 (11) TMI 598 - CESTAT NEW DELHI], Arihant Solvex [2019 (1) TMI 235 - CESTAT NEW DELHI] and it has been decided that these products can be treated as ‘waste’ during the manufacture of refined edible oil, which is an exempt product and they are entitled for the benefit of exemption Notification No. 89/95-CE dated 18.05.1995.
Further, it is found that this Tribunal in the case of M/s. Habib Agro Industries and in the case of the appellant’s own case [2023 (8) TMI 654 - CESTAT BANGALORE] has decided that the Acid oil, Fatty acid, Gums and Waxes generated during the process of refining of oil are eligible for the benefit of Notification 89/95-CE dated 18.05.1995, considering them as waste.
Conclusion - By-products generated as incidental to the manufacture of exempt goods can qualify as waste - appellant's eligibility for the exemption under Notification No. 89/95-CE affirmed - SSI exemption denied due to exceeding the turnover threshold.
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2024 (12) TMI 1448
Interest on delayed refunds - to be calculated from the date of deposit or from the date of filing the refund application - applicable rate of interest on the delayed refund - HELD THAT:- In the present case impugned order clearly observes that the amount that was deposited by the appellant at the time of visit of officers to their premises was appropriated by the original authority while adjudicating the case of shortages against the appellant. The amount so appropriated acquired the character of duty, the moment it is appropriated against the demand made.
In case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT], Hon’ble Supreme Court has observed 'Section 11B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal - which is not a departmental organ - but to this Court, which is a civil court.'
Thus all the refunds which are filed under the Central Excise Act, 1944 in terms of the decision of hon’ble Supreme Court in case of Mafatalal Industries and the above provisions whether of the duty, interest or any deposit made are governed by the provision of Section 11B of the Act. The interest thus gets governed by the provisions of Section 11BB as has been held by Hon’ble Supreme Court in case of Ranbaxy, referred in the impugned order. There has been exception carved out only for determination of relevant date for determining the period for which interest is to be paid in respect of deposit made as per Section 35F for filing the appeal before an appellate authority. Section 35FF provides that interest would be paid from the date of deposit made under Section 35F.
Conclusion - Interest would be paid from the date of deposit made.
There are no merits in the appeal - appeal dismissed.
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2024 (12) TMI 1404
Relevant date for calculation of interest on the refund of the deposit made under protest - to be calculated from the date of deposit or from the date specified under Section 11BB of the Central Excise Act, 1944? - applicability of provisions of Section 11B and 11BB of the Central Excise Act, 1944.
HELD THAT:- Merely because the petitioner was compelled to pay the amount of Rs. 22,93,439/-by the respondent prior to issuance of show-cause notice or adjudication, the principle of restitution would not be attracted in view of the subsequent event which has taken place of passing Order-in-original determining the demand of central excise duty with interest and penalty which had subsisted up to the order passed by the CESTAT allowing the appeal of the petitioner. Therefore, the contention raised on behalf of the petitioner that date of amount deposited by the petitioner under protest would have to be considered for claim of interest payable to the petitioner to consider the amount deposited as “deposit” as the said amount has thereafter been adjusted against outstanding demand which was quantified by the respondent-authority while passing the Order-in-original. Even the Commissioner (Appeals) upheld the Order-in-original and only after the CESTAT allowed the appeal of the petitioner, the petitioner was entitled to the refund of the amount duty which was adjusted form the amount deposited by the petitioner under protest.
This Court, in case of KAMAKSHI TRADEXIM (INDIA) PVT. LTD. AND 1 VERSUS UNION OF INDIA AND 1 [2017 (4) TMI 223 - GUJARAT HIGH COURT] following the decision of Ranbaxy Laboratories (Ltd) (supra), has held that from a bare reading of Section 11B (2) and 11BB of the Act, it is clear that if the concerned authority was satisfied on the claim of the applicant of refund, then the refund was to be paid within three months from the date of the receipt of the application for refund and if it was not so paid then interest had to be paid on it under Section 11BB of the Act.
The contentions raised on behalf of the petitioner that the petitioner is entitled to interest from that date of deposit made under protest in the year 2005 is incorrect as the refund was granted to the petitioner under section 11B of the Act and accordingly interest is rightly awarded under section 11BB of the Act.
Conclusion - Interest under Section 11BB of the Act becomes payable on the expiry of a period of three months from the date of receipt of the application under Sub-section (1) of Section 11B of the Act.
Thus, no interference is called for in the impugned orders passed by the Commissioner (Appeals) which is upheld by the CESTAT granting interest on refund as per section 11BB of the Act - petition dismissed.
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2024 (12) TMI 1403
Interest on delayed refund - whether the late reversal of Cenvat Credit attributes to the goods destroyed in fire and remission has been granted, the interest is chargeable for the delayed period in terms of Rule 14 of Cenvat Credit Rules, 2004? - HELD THAT:- From the plain reading of Rule 14, it can be seen that the interest was chargeable as per Clause 2 of Rule 14(1)(ii) only when the assessee not alone takes the credit but also utilize the same - In the present case as per the claim of the appellant they have maintained the accumulated Cenvat Credit, which is more than the Cenvat Credit which was required to be reversed. Therefore in terms of the above rule, the appellant are not required to pay the interest. This factual aspects needs to be verified by the original authority however, it is held that if it is found for the appellant have not utilized the Cenvat credit and maintained balance equal and above the Cenvat Credit reversed, they are not required to pay the interest.
Conclusion - The appellant is not required to pay interest on the late reversal of Cenvat Credit if it is verified that the credit was not utilized and the balance was maintained. Matter remanded for verification of the facts.
Appeal allowed by way of remand to adjudicating authority.
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