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Central Excise - Case Laws
Showing 281 to 300 of 81317 Records
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2024 (9) TMI 1023
Clandestine removal - evasion of duty by misusing small scale Exemption Notification No.08/2003-CE as amended - Clubbing of clearances - inspection charges paid to M/s. RITES by Indian Railways for inspection of the goods being supplied by MM and MMPL should be part of the assessable value of such goods cleared and be liable to central excise duty or not - levy of duty on goods manufactured and used for repairs and reconditioning - sale proceeds of unaccounted goods cleared clandestinely or not - confiscation - penalty.
HELD THAT:- This Court is of the view that when the consideration has been given by the original authority by taking into consideration the various documents, i.e., Stock Register for Brush Holder etc. and hence, it was incumbent upon the appellate authority to re-appreciate the said documents for the purpose of coming to the conclusion and not only by going through the identity of both the firms, i.e., one being the Proprietary concern and another a Private Limited Company.
The issue of clubbing together for the purpose of getting exemption requires consideration on the basis of the transaction of the business which cannot be assessed only on the basis of the fact that one unit is a Proprietary concern and another is Private Limited Company.
The issue has been raised that the appellant has not raised the issue of perversity. Even accepting that the issue of perversity has not been raised but if the error is apparent on the face of the order, then the Court while considering the propriety of the order which has been challenged is to consider on the basis of the principle as to whether the order assailed suffers from perversity or not - ‘Perversity’ means that if anything has not been considered if so placed or erroneously been considered and if that be so, it is incumbent upon the Court to law to go into the propriety of the order by taking into consideration the issue of perversity.
This Court has considered the order impugned and after taking into consideration the specific consideration given by the original authority based upon the documents which is lacking in the order passed by the Tribunal - the finding so recorded in the impugned order needs to be interfered with.
Appeal disposed off.
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2024 (9) TMI 1022
Utilization of CENVAT credit availed on inputs, capital goods and input services for paying Sugar Cess - period 2010-2011 - subrule (4) of Rule 3 of the CENVAT Credit Rules, 2004 - HELD THAT:- Hon’ble Karnataka High Court in appellant’s own case COMMISSIONER OF CENTRAL EXCISE VERSUS M/S SHREE RENUKA SUGARS LTD [2014 (1) TMI 1469 - KARNATAKA HIGH COURT] observed that Sugar Cess is nothing but a duty of excise and admissible to take credit under Rule 3 of the CCR, 2004. In the absence of any restriction of utilization under subrule (4) of Rule 3 of the CENVAT credit Rules, 2004 in discharging Sugar Cess, the utilization of accumulated credit in discharging liability of Sugar Cess cannot be denied.
This Tribunal in DECCAN CEMENTS LTD, M/S BHARATHI CEMENT CORPORATION PVT LTD, M/S ZUARI CEMENT LTD, M/S PENNA CEMENT INDUSTRIES LTD UNIT IV, I, M/S RAIN CEMENTS LTD VERSUS COMMISSIONER OF CENTRAL TAX, RANGAREDDY, TIRUPATI – GST, COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, NELLORE, TIRUPATI [2019 (7) TMI 764 - CESTAT HYDERABAD], comparing Sugar Cess with Clean Energy Cess observed that Sugar Cess as held by the Hon’ble Karnataka High Court to be duty of excise stands in a different footing from Clean Energy Cess. Hence, the said judgment is not applicable to the facts and circumstances of the present case.
The impugned orders are not sustainable in law and accordingly, the same is set aside - appeal allowed.
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2024 (9) TMI 1021
Valuation - inclusion of charges for testing conducted by third party on the request of the customer and reimbursement of such testing charges from the customer M/s Power Grid Corporation of India Limited in the assessable value - HELD THAT:- In the facts of the present case the testing was conducted not as a part of the obligation of the appellant but in a special case when the request was made by the customer to conduct such test.
The test was conducted by third party on the request of the customer M/s Power Grid Corporation, in such case the testing charges cannot be part and partial of the manufacture of excisable goods in the hand of the appellant consequently the same is not includible in the assessable value of the excisable goods. On the identical facts and circumstances various judgments have been delivered wherein, it was held that the testing charges conducted on behalf of the appellant by third party and taking reimbursement of such testing charges by the manufacturer supplier is not includible in the assessable value.
This issue has been considered by larger bench of this Tribunal in the case of BHASKAR ISPAT PVT. LTD [2004 (3) TMI 102 - CESTAT, NEW DELHI] wherein, the larger bench answered the reference holding that 'cost of additional testing conducted at the request of the customer and the cost of such testing being borne by the customer, are not includible in the assessable value of the goods.'
Thus, it is settled law that any testing charges for the testing done by third party on the request of the customer and reimbursement of the same to the manufacturer supplier, the said testing charges is not includible in the assessable value of the excisable goods supplied on payment of duty. The issue in hand is no longer res-integra in the light of the above judgments. Therefore, in the present case the testing charges is not includible in the assessable value of excisable goods manufactured and cleared by the appellant on payment of duty.
The impugned order is set aside to the extent it upheld the demand, interest and penalty - Appeal allowed.
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2024 (9) TMI 1020
Recovery of Excise duty with interest and penalty - difference between the actual collection from 1st April 200 to 31st March 2003 and the amount required to be deposited - appellant opted for pre-payment of the amount - HELD THAT:- The Tribunal, relying upon the decision of the Tribunal in COMMISSIONER OF CENTRAL EXCISE, RAIGAD, BALKRISHNA INDUSTRIES LTD., ESSEL PROPACK LTD. VERSUS UTTAM GALVA STEELS LTD., BHUSHAN STEEL LTD., JSW ISPAT STEEL LTD., COMMISSIONER OF CENTRAL EXCISE, AURANGABAD [2015 (10) TMI 1727 - CESTAT MUMBAI] has held, that 'the abatement towards sales tax has to be allowed in terms of the sales tax liability (as per law) at the time of clearance of the goods. Such abatement cannot be subsequently altered or restricted to the net present value of sales tax subsequently paid in complete discharge of such sales tax liability.'
The impugned order is set aside - appeal allowed.
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2024 (9) TMI 1019
CENVAT Credit - inputs used for manufacturing sample vehicles exported for testing under rule 19 of the Central Excise Rules, 2002 without payment of duty by furnishing letter of undertaking - HELD THAT:- This issue is no more res integra and has been settled in the appellant’s own case M/S MARUTI SUZUKI INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III [2023 (10) TMI 803 - CESTAT CHANDIGARH] which relates to earlier period and subsequent period. This Tribunal in appellant’s own case M/S MARUTI SUZUKI INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III [2023 (10) TMI 803 - CESTAT CHANDIGARH] allowed the appeal filed by the appellant and held that testing of sample vehicles is integral to the activity of manufacture and thus Cenvat credit attributable to the inputs gone into manufacture of said products is admissible. As per Rule 3 of the Cenvat Credit Rules, 2004 provides that the manufacturer of a final goods shall be entitled to avail the credit of the specified duties in respect of inputs or capital goods received in factory of the manufacturer for use in or in relation to, the manufacture of the final products.
The Tribunal in catena of decisions held that export of sample vehicle is integral part of the manufacturing process and hence the Cenvat credit cannot be denied on the input used to manufacture the sample vehicles.
Since, the issue has already been settled in appellant’s own case and by following the ratio of the said decisions the impugned orders are not sustainable in law and the same is set aside - Appeal allowed.
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2024 (9) TMI 921
CENVAT Credit - Refund claim with interest - applicability of time limitation - case of the appellant is that effectively no Central Excise Duty had been claimed from M/s ONGC and Oil India Limited, and in this backdrop, the cenvat credit could not be availed by the purchaser - HELD THAT:- The Hon’ble Supreme Court in the case of M/S. SUNRAYS ENGINEERS PVT. LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2015 (4) TMI 122 - SUPREME COURT] had examined the case of limitation under Section 11B of the Central Excise Act, 1944. The Hon’ble Supreme Court was examining a Notification dated 31.10.2000, where the rate of excise duty has been reduced with retrospective effect i.e. w.e.f 01.07.1999. The refund application was made on 19.06.2001. Keeping in view the Notification dated 31.10.2000, the Hon’ble Supreme Court held that the trigger point which entitled the authority to refund was 31.10.2000, and the limitation has to be reckoned from the date the Notification has been issued. In the absence of such notification, there was no cause of action in favour of the assessee. Hence, the application moved for refund on 19.06.2001, was within time, and there was no logic in reckoning the limitation from July, 1999, under section 11B of the Central Excise Act, 1944.
The ratio of the judgments are applicable in the facts of the present case, in the present case, after the Notification dated 18.04.2013, the DGFT, had no powers to grant the refund and the time taken before that authority could not be made basis to reject the application for refund on the ground of expiry of the limitation.
The application in the present case was made on 03.10.2013, and after the Notification dated 18.04.2013, the period of one year would start from the date 18.04.2013, to approach the correct forum for grant of refund i.e. Deputy Commissioner. The period of one year would expire on 18.04.2014, and the appellant had approached the DGFT, Dehradun on 03.10.2013, which was before the expiry of limitation i.e. 18.04.2014.
The order passed by the CESTAT, New Delhi is being set aside - Appeal allowed.
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2024 (9) TMI 920
Reversal of CENVAT Credit - Liability to pay an amount equal to 6% upon the difference between the sale price and the purchase price of the goods traded - credit on common input service was availed by appellant - such common service was used in the trading of goods as well as manufactured goods cleared on payment of duty - HELD THAT:- It is found that the demand of CENVAT Credit was raised which is equal to 6% of difference between the purchase price and sale price of trading goods in terms of Rule 6 (3). However, it is also not in dispute that the appellant have reversed the proportionate credit along with payment of interest. Therefore, after such reversal and payment of interest for the delayed period i.e. from the date of taking credit till the date of reversal of proportionate credit the demand equal to 6% under Rule 6 (3) shall not sustain as held in numerous Judgments.
The demand is not sustainable. Hence the impugned order is set aside - Appeal allowed.
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2024 (9) TMI 919
Refund of CENVAT credit - upward revision as per the revised ER-1 for the month of June 2017 - refundable under Section 142(9) of the CGST Act, 2017 read with Section 11B of the Central Excise Act, 1944 or not - HELD THAT:- From the facts of the case, it is seen that the appellants had duly followed the procedure and conditions prescribed in complying with the obligations under Cenvat Credit Rules, 2004, and had also complied with in filing revised returns with the department. In terms of legal provisions prescribing the procedure for transitional credit under Section 142(9)(b) of the CGST Act, 2017, when the same is unable to be utilized for further payment of duty/tax, the appellants had applied for refund before the departmental authorities.
The main ground on which the refund application of the appellants was held as not entertainable in the impugned order is, that there exists no provision under Rule 5 of the CCR, for cash refund of excess CENVAT credit and therefore the refund in terms of proviso (c) to Section 11B(2) ibid, is not permissible in the case of the appellants - the provisions of Section 142(9)(b) of the CGST Act, is a transitional arrangement wherein it has been specifically provided that such provisions apply as a non-obstanate clause whereby such provisions will have overriding effect, if anything to the contrary is contained under the provisions of existing law i.e., Central Excise Act, 1944, except for the provisions of sub-section (2) of section 11B ibid. Thus, all the conditions of the requirements of Section 11B ibid as it remained under the existing law, other than those relating to Unjust Enrichment clause contained in Section 11B(2) ibid would apply, only if they are not contradictory to the provisions of Section 142(9)(b) of the CGST Act, 2017, in dealing with refund of ‘CENVAT credit’.
It is reasonable to conclude that when the Central Excise Act, 1944 amongst other laws relating to old tax regime was repealed by Section 174 of the CGST Act, 2017 and that the CCR is also being superseded vide Notification No.20/2017-C.E. (N.T.) dated 30.06.2017, by the Central Government for smooth implementation of transfer to GST regime in indirect taxation, it is found that the provisions of Section 142 of the CGST Act, 2017 are sufficient to provide for the tax administration for sanction of cash refund in circumstances stated therein, and I find that there is no need and it is not legally feasible to make any specific provision in CENVAT statute itself, for enabling cash refund of excess CENVAT credit relating to earlier regime while moving to the new GST regime.
The issue of reversal of excess CENVAT credit under the transitional arrangement as provided under Section 142 of CGST Act, 2017 has already been addressed by the Co-ordinate Bench of the Tribunal in the following cases, and it was held that cash refund of such excess CENVAT credit is permissible.
There are no merits in the impugned order passed by the learned Commissioner (Appeals) as it does not stand the scrutiny of law. Therefore, by setting aside the impugned order dated 13.01.2020, the appeal is allowed in favour of the appellants.
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2024 (9) TMI 918
Eligibility for benefit of N/N. 21/2002-Cus. dated 01.03.2002 and N/N. 12/2012-Cus. dated 17.03.2012 - parts imported and used in the manufacture of ‘telecom racks’ - extended period of limitation - penalties.
HELD THAT:- From the facts, it is clear that the imported parts classified under different Tariff Headings are used in the manufacture of outdoor cabinets which is called as Telecom Racks by the appellant and the outdoor cabinets are ultimately cleared by the appellant to M/s. Ericsson. The outdoor cabinets are enclosures with doors and panels made to specified dimension and fitted with various items such as fans, filters, cables, etc. They provide necessary cooling, cable entry and electrical connection for the complete function of BTS. The enclosures protects the BTS from dust and rain. It is supplied to M/s. Ericsson India Pvt. Ltd. who in turn mount the outdoor BTS inside the outdoor cabinet and integrated sub racks to generate signals as a ‘Base Trans receiver Station’.
This Tribunal has considered in Raydean Industries case [2022 (4) TMI 1155 - CESTAT NEW DELHI], the claim of the appellant that “Module Mounting Structures” whether could be considered as part of ‘Solar Power Generating System’. Sl. No.332 of the N/N. 12/2012-Cus. dated 17.03.2012 allowed Non-conventional Energy Device specified in List 8. The appellant claimed the parts as ‘Solar Power Generating System’ where a specific mention about the parts consumed within the factory and production of such parts for manufacture of the goods specified at Sl. No.1 to 20 has been prescribed.
In the instant case the use of imported parts were in the manufacture of Outdoor cabinets, which were cleared to M/s Ericson, who further uses the same in the manufacture and clears it to licensed Telecom service provider to be used as BTS. Needless to mention the principle strict interpretation has to be applied in extending the benefit of an exemption Notification as laid down by the Hon’ble Supreme Court in the case of Dilip Kumar and Co.’s case [2018 (7) TMI 1826 - SUPREME COURT].
Thus, the appellants are not eligible to the benefit of exemption Notification No.21/2002-Cus. dated 01.03.2002 as amended and Notification No.12/2012-Cus. dated 17.3.2012 for the imported parts, classifiable under various subheading of the Tariff Act, which in turn used in the manufacture of outdoor cabinets/Telecom Racks, which subsequently used by M/s Ericson in the manufacture of BTS to Telecom service provider classifying the same BTS system.
Time Limitation - Penalty - HELD THAT:- The appellant has been importing the said materials declaring the description of the goods correctly mentioned as above classifying the same under respective Tariff Heading - no facts was suppressed from the knowledge of the department about import of the said parts and its use in the manufacture of outdoor cabinets/Telecom Racks by the Appellant which had been cleared to M/s Ericson as part of BTS system.; therefore, invoking extended period of limitation in confirming the demand cannot be sustained. Consequently, imposition of penalty on the appellant and personal penalty on individuals also not warranted and accordingly are set aside.
Since it is held that the appellants are not eligible to avail the benefit of Notification No. 21/2002 Cus. & 12/2012 Cus. with regard to the imported goods used in the manufacture of outdoor cabinet, the application by the appellant in compliance with Condition 5 of the said Notifications read with Import of Goods at Concessional Rate for Manufacture of Excisable Goods (IGCRME) Rules, 1996 has been rightly denied by the lower authorities.
The denial of the benefit of the Notification No.21/2002 Cus. & 12/2012 Cus. is upheld; the demand for the extended period is set aside and the demand with interest be restricted to the normal period - Appeal allowed.
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2024 (9) TMI 914
Denial of SSI exemption under N/N. 08/2003CE dt.01.3.2003 - clearance value of sealing machines manufactured by each of the Units (called as mother units) - dummy Units created and controlled by Sepack - Confiscation - penalty - HELD THAT:- The undisputed facts are that the appellant(M/s. Sepack) during the relevant period engaged in trading, inter alia, of sealing machines. These sealing machines were manufactured by various independent units (DMUs) and supplied to Sepack at the price mutually agreed. The appellant after affixing their brand name and packing the sealing machines cleared to the end consumer at a price higher than the price at which the same were purchased from different units. Each of the DMUs engaged in the manufacture of sealing machines was registered with the respective village panchayats, but not registered with the Central Excise Department claiming SSI exemption under Notification No.08/2003-CE dated 01.3.2003 up to the aggregate value of clearances in the respective financial years being less than Rs. 150 lakhs.
The allegation of the Revenue is that the individual units which are described as Decentralized Mother Units (DMUs) are dummy units being created and controlled by Sepack only for the purpose of claiming SSI exemption benefit under N/N. 8/2003-CE dated 01.03.2003 on the turnover of each of the said Units. Secondly, it is also alleged by the Revenue that the product sealing machines at the premises of the DMUs were not fully finished and attained the character of a marketable commodity; the sealing machines became complete and emerge only after the quality checking, and other processes in the premises of Sepack including the processes of branding, labelling, warranty agreement which enriches its value as well as make the sealing machines marketable. Thus, manufacturing of sealing machines becomes complete only after these incidental and ancillary processes undertaken by the appellant at their premises. Hence, Sepack is the manufacturer of the sealing machines.
The learned Commissioner has observed that there is a financial flow-back from the appellant to DMUs inasmuch as the Sepack identify the supplier of raw materials who would supply the inputs at the least possible price to the DMUs; the reduction in the production cost by various methods including procurement of raw materials at a cheaper price and through other mutual efforts benefitting both Sepack and the DMUs; the benefit that accrues to Sepack by such means would definitely be considered as a financial flow-back to Sepack - The mother units started placing purchase orders of base and rocker arms with the diecasting units and could able to achieve better efficiency, uniformity and cost reduction and they could able recoup the investment on moulds within one year and returned the advances made by the mother units. Later the diecasting units were investing in the moulds themselves and recovering the cost through amortisation. The said statement of Shri Biju Philipose has been verified by the Department from the ledger account submitted and no discrepancy was noticed as recorded in the show-cause notice. Thus, the finding of the Commissioner that there is a financial flow back by way of investment in moulds cannot be sustained as it is within the normal practice of the trade.
It is to be borne in mind that the entire allegation of the Revenue rests on the premises that all these individual DMUs were dummy units of Sepack, impliedly, these units do not have separate physical existence in practice and their existence was on paper only. On the contrary, from the various statements, it could easily be discerned that there has been commercial and healthy negotiations between Sepack and all DMUs by exchanging ideas and sharing of cost data and suggesting to arrive at the optimum cost of production so as to maximise the profit in the interest of both parties. Thus, it cannot be interpreted that the individual DMUs have no existence and all the units belong to Sepack and fully controlled by Sepack. In the event, the DMUs were in existence only on paper, then there was no need to conduct periodical monthly meetings and deliberate on the issues of reduction in cost and contributing to the efficiency in production.
The second alternate allegation of the Revenue is that the sealing machines cleared by the DMUs to the Sepack were incomplete, since the processes of branding, packing and placing warranty cards have been undertaken by the Sepack in their premises. It is the Revenue’s contention that these processes are ancillary and incidental; therefore, resulted into manufacture of sealing machines - it is found from the record that the Sepack initially carry out the process of inspection before delivery of sealing machines at their premises and accepts the same when it is found complete and also carry out a second time inspection before selling the goods to the consumers, which itself indicate that when they receive the sealing machines, the same was complete and ready to be used condition. Thereafter, Sepack affixes its brand name, placing the warranty card and packing the sealing machine, clears the same to their customers. Hence, it is incorrect to say that incomplete / unfinished sealing machines were received by Sepack from the DMUs.
Thus, it could not be established by the Revenue that Sepack are required to pay duty by clubbing the turnover of the individual DMUs, denying each of the units the benefit of N/N.8/2003-CE dated 01.03.2003 and also considering Sepack as manufacturer of sealing machine during the period 2009 to 2014, on the price of sealing machines cleared by them. In the result, on merit, the impugned order cannot be sustained.
The confiscation of seized goods, imposition of penalty on Sepack, penalty on other appellants under Rule 26 of Central Excise Rules, 2002 become academic and hence not deliberated - the impugned order is set aside and the appeals are allowed.
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2024 (9) TMI 837
Jurisdiction - Tribunal acted as the appellate authority under Section 35C of the Central Excise Act, 1944 properly or not - Hon'ble Tribunal does not explicitly address/verify whether oxygen manufactured from the plant of the Respondent was used in the manufacture of Sulphuric Acid - non-speaking order - N/N. 67/95-CE dated 16.03.1995.
HELD THAT:- he Tribunal has rightly held that the issue raised in the appeals are no more res integra as the same has already been settled by the Hon’ble Supreme Court in the case of UNION OF INDIA & OTHERS VERSUS M/S. HINDUSTAN ZINC LTD. [2014 (5) TMI 253 - SUPREME COURT] which is followed by the Tribunal in the case of STERLITE INDUSTRIES INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, TIRUNELVELI [2015 (11) TMI 1247 - CESTAT CHENNAI]. The Tribunal has, extracted the relevant observations from the decision in the case of Sterlite Industries India Ltd, wherein the decision of the Hon’ble Supreme Court is also referred to and it was held that 'The only condition is that sub-rule (2) of Rule 6 of CCR is required to be complied with. In the present case, as per sub-rule (2), appellant manufactured oxygen used in the manufacture of excisable product and they had no obligation to maintain separate accounts for oxygen used in the manufacture of Sulphuric Acid. It is established that appellant did not use oxygen produced in the manufacture of Sulphuric Acid. Accordingly, conditions of Notification No. 67/95 are complied.'
The Tribunal, in the case of Sterlite Industries India Ltd has considered that the waste gas which emerges out of process of purification of copper concentrate in Sulphur Dioxide which is further converted into Sulphur Trioxide which is absorbed in Sulphuric Acid to form Oleum and this Oleum is dissolved in water to get purest form of Sulphuric Acid. The Tribunal has also referred to the various provisions of the Environment (Protection) Rules, 1986 which provides that it is mandatory for the respondent to prevent emission of oxides of sulphur in Smelter and Convertor of copper and it stipulates that waste gases are to be utilized in the manufacture of Sulphuric Acid so as to prevent emission of Sulphur Dioxide.
Thus, the findings of fact recorded by the Tribunal in the impugned order cannot be termed as perverse or contrary to the evidence on record. In the overall view of the matter, it is convincing that the decision of the Tribunal is correct and requires no interference.
Appeal dismissed.
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2024 (9) TMI 836
Levy of Excise Duty - income shown in Profit and Loss Account can be presumed as income from sale of dutiable goods and subjected to excise duty in absence of any other evidence or not - CENVAT credit availed based on valid invoices and admittedly upon receipt of inputs/input services - denied on the ground of erroneous filing of NIL returns during the period - violation of principles of natural justice.
HELD THAT:- The Adjudicating Authority has not provided the vital report given by the Divisional Assistant Commissioner to the appellant. Thus, he has gravely erred by not complying the principles of natural justice. Moreover, regarding difference between the ER1 return and profit and loss account the appellant claimed that they have submitted all the documents which were also not considered properly by the adjudicating authority. Therefore, the impugned order is suffered from non-compliance of principles of natural justice.
The impugned order is set aside - matter remanded to the Adjudicating Authority - Appeal allowed by way of remand.
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2024 (9) TMI 835
Valuation of Excise Duty - non-inclusion of VAT realized from the customers in the assessable value - demand alongwith interest and penalties - invocation of extended period of limitation - penalty.
Includability of the sales tax concession retained by the Appellant in the assessable value for the purpose of levy of Central Excise duty - HELD THAT:- The issue is no more res integra as the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS [2014 (3) TMI 42 - SUPREME COURT], has held that the sales tax concession retained by the assessees is required to be added in the assessable value for the purpose of levy of Central Excise duty - By relying on the above decision of the Hon’ble Supreme Court, it is held that the sales tax concession retained by the Appellant is required to be added in the assessable value for the purpose of levy of Central Excise duty.
Extended period of limitation - Penalty - HELD THAT:- In the present case, it is observed that the ld. adjudicating authority has failed to show any positive act of suppression on the part of the Appellant. The details of VAT collected and retained by the Appellant are reflected in the audited Profit & Loss account and balance sheet of the impugned periods. Accordingly, by following the above Circular issued by the Board, it is held that extended period is not invokable in this case and for the same reason, penalty under Section 11AC of the Central Excise Act, 1944 is also not imposable.
Appeal disposed off.
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2024 (9) TMI 834
Applicability of Exemption N/N. 167/71-CE dated 11th September 1971 on prototypes of equipment and machinery used in the pharmaceutical industry - products cleared between November 2008 and March 2015 - HELD THAT:- The notification is a relic of antiquity when the process of clearance was vastly different and central excise officers could have had greater oversight of manufacture/clearance. The altered paradigm of clearances during the period of dispute, insofar as practice was concerned, and the absence of any stipulations in the changed circumstances, insofar as enforceability was concerned, was not considered by the adjudicating authority. It is moot if the exemption intended by the notification can be denied on speculative premises without requiring, let alone prescribing, certification, maintenance of records or inspection of premises for each clearance. These were not sought for at any stage; nor does the impugned order demonstrate the nature and characteristics of each impugned clearance. The findings are, thus, inadequate for disposal of the allegations in the notice.
Matter back to the original authority for a fresh decision that denies the benefit of exemption notification on clear finding of non-compliance with the conditions expressly contained therein - impugned order set aside.
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2024 (9) TMI 833
Availment of inadmissible CENVAT credit and utilization of same for payment of central excise duty - inputs sourced in the context of the entire manufacturing operations through various job workers - contravention of provisions of Central Excise Rules, 2002 - HELD THAT:- M/s AIPL, Ludhiana had disputed the allegation raised by the department that they had no facility for manufacture of copper ingots inside the factory premises etc., at the initial stage of DGCEI investigation, by filing a civil suit against the local Commissioner of Central Excise and Customs before the Civil Judge (Senior Division) Ludhiana. In disposal of such application filed by M/s AIPL, under Order 26 Rule 9 CPC this case had culminated into passing of an order dated 04.10.2006, wherein the said Civil Judge had appointed a Local Commissioner who shall visit the spot and report about the actual and factual position of machinery lying installed in the factory of the plaintiff M/s AIPL.
The conclusion arrived in the impugned order that the CENVAT credit taken on the basis of invoice issued by M/s AIPL, Ludhiana is without a prescription of material is contrary to the factual position, as indicated above. Further, during cross examination of the manager Shri Jaswantbhai Shah, he had clearly stated that he had received the invoice along with the material from M/s AIPL, Ludhiana. Therefore, there are no basis or any other evidence for coming to a conclusion that the receipt of copper ingots etc., by the appellants from M/s AIPL, Ludhiana, is improper.
The Tribunal in case involving similar facts and for the same disputed supplier M/s AIPL, Ludhiana, in the case of M/S. STI INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE & S.T., VAPI [2015 (7) TMI 224 - CESTAT AHMEDABAD] have held that the CENVAT credit cannot be denied, as the documents produced show that M/s AIPL was in existence and supplied the material with invoices.
Thus, the appellants have duly availed the CENVAT credit, there are no merits in the impugned order to the extent of it had denied CENVAT credit facility and in confirmation of the adjudged demands on the appellants - appeal allowed.
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2024 (9) TMI 832
Clandestine removal - 411 MT of Portland Cement - shortage of cement - absence of any stock taking not being conducted by the Department - HELD THAT:- It is borne out of records that at the time of visit of Anti Evasion team on 01.02.2010, the Account’s Manager, Shri Dinesh Agarwal had admitted that a quantity of 411 MT of cement were removed from their factory without payment of duty leviable on the value of the goods and sold in cash under the direction of Shri Samhu Agarwal, Director of the Appellant Company. Shri Sambhu Agarwal, Director in his statement recorded on 25.02.2010 accepted that the said goods were cleared without payment of duty. He only denied having given any specific direction to the Account’s Manager for the sale of the said goods.
In the present case as the duty was paid on the very next day and prior to the due date of filing the central excise return, no interest is leviable in the matter. As for the penalty payable @ one percent, the same as per law is to be calculated from the month following the month in which such duty was payable. Thus under the circumstances, as the duty itself was paid within the said month, question of imposition of penalty u/s 11A(6) would also not arise in the present matter. As for the appellants meek plea of ascertainment of clandestinely cleared quantity in the absence of stock taking, it is stated that it is a settled legal principle that admitted facts need not be proved.
The order of the lower authority is upheld to the extent of confirmation and appropriation of duty amount leviable. I set aside the orders of the lower authority regarding imposition of penalties on the appellants - Appeal allowed in part.
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2024 (9) TMI 771
Request for grant of interest on delayed refunds - rejection with an advise that petitioner may file an appeal against the order in original - Respondent submitted that if only petitioner had made this submissions to the officer before the impugned order dated 15th December 2020 was passed, he might have consider and allowed interest - HELD THAT:- The respondents are not agreed upon, in as much as the officer should be aware of what the law is and the law was as confirmed by the circular issued by the Board that Section 11BB of the Act is attracted automatically for any refund sanctioned beyond a period of three months.
In view of the provisions of law, instead of quashing and setting aside the order dated 15th December 2020 and adding to the burden of the officers, the Respondent No. 3 or 4 or the appropriate officer are directed to work out the interest payable at the notified rate and that would mean the rate notified on 15th December 2020 as provided under Section 11BB of the Act and pay the amount within four weeks from the date this order is uploaded.
Petition disposed off.
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2024 (9) TMI 770
Condonation of delay in filing the application for restoration - HELD THAT:- Though the reasons given are not very satisfactory yet since the appeal had been filed under Section 35G of the Central Excise Act, 1944, way back in the year 2020 and the appeal was pending, and we are required to consider as to whether any substantial question of law arose for consideration the discretion is exercised and the delay in filing the application is condoned for restoration.
Whether the findings of the adjudicating authority that after removal of goods inter mixing of SKO with MS/HSD amounts to manufacture? - HELD THAT:- The reasoning given by the learned Tribunal to be perfectly valid and justified, as the Board cannot issue a Circular contrary to the statutory provision nor the adjudicating authority can travel beyond the allegations in the show-cause notice - there are no grounds to interfere with the order passed by the learned Tribunal.
The appeal fails and dismissed and the substantial questions or law are answered against the revenue.
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2024 (9) TMI 769
Condonation of delay in filing appeal - time limitation - appeal filed beyond the period permitted in section 35 of Central Excise Act, 1944 - HELD THAT:- Taking note of the decision in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT], it was held in M/S TNET MESSAGING SERVICES P LTD. VERSUS COMMISSIONER OF CUSTOMS CGST& CX, MUMBAI EAST [2023 (3) TMI 891 - CESTAT MUMBAI] that 'it is well settled that once the period of limitation expired as prescribed u/s. 85(3) ibid neither the Tribunal nor the first appellate authority has power to condone the delay in filing the appeal beyond the statutory period.'
Thus, it is not open to the Tribunal to condone such delay as could not be condoned by the first appellate authority. There is no merit in the appeal which is dismissed.
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2024 (9) TMI 768
Rejection with respect to the self-credit taken by the appellant - manufacture of cosmetics and Vaseline classifiable under Chapter 33 and 27 respectively of first schedule to the CETA - benefit of N/N. 20/2007-CE dated 25.04.2007 - HELD THAT:- Both the lower authorities have not disputed the fact that differential duty of Rs. 18,89,626/- has been paid by the appellant along with duty payable for the month of January 2012, on 02.02.2012. It is also observed that the appellant has fulfilled all the conditions of N/N. 20/2007-CE, as amended by N/N. 20/2008-CE. Thus, there is no dispute regarding the eligibility of the credit to the appellant.
The impugned order has not allowed the refund of self-credit claimed by the appellant to the extent of 56% of the said differential duty paid, amounting to Rs. 10,27,377/-, based on the observation that the appellant have not complied with Paragraph 2A of the said Notification - In the present case, as directed by the Department, the appellant paid the duty for the months of August 2011 to December 2011 in the month of January 2012. Thus, there is no infirmity in taking self-credit of all the duties paid in the month of January, including the duty paid for the earlier months. Accordingly, the appellant is eligible for the refund of self-credit of Rs.10,27,377/-.Thus, that portion of the impugned order rejecting the refund of self-credit to the extent of Rs.10,27,377/- is liable to be set aside.
The portion of the impugned order rejecting the refund of self-credit to the extent of Rs.10,27,377/- set aside - appeal allowed.
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