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Central Excise - Case Laws
Showing 301 to 320 of 81317 Records
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2024 (9) TMI 767
CENVAT Credit - advertising service - failure to comply with requirement in rule 6 of CENVAT Credit Rules, 2004 of maintaining separate records of consumption of advertisement services - rule 6(3) of CENVAT Credit Rules, 2004 - HELD THAT:- It is settled law that ‘advertising services’ is an input service for goods manufactured as long as it relates to goods being sold. That the procurement of such service for ‘HIT’ has been undertaken by the appellant-assessee is not in dispute by either side. That such credit could have been distributed to contract manufacturers is in the realm of the hypothetical as that is not a fact in the present dispute. The distribution of the eligible credit to the one unit of the appellant-assessee manufacturing the product is also not disputed by the appellant-Commissioner.
It is only required to determine credit eligible to be utilised by the sole manufacturing facility in proportion to the contribution to the total turnover of the advertised product. The impugned order has not erred in computing the proportion and, indeed, there is no dispute on that score. It is only the remedy that is under dispute. The adjudicating authority has adopted the harshest of the methods without allowing the assessee to seek the most facilitative option.
The impugned order is set aside to the extent of recovery determined therein - matter remanded back to the original authority to re-adjudicate the matter after taking into consideration the correctness of the reversal adopted by the appellant-assessee - appeal allowed by way of remand.
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2024 (9) TMI 692
Rebate of excise duty on materials used in the manufacture of goods - Rule 18 of the Central Excise Rules, 2002 - HELD THAT:- In the instant case, admittedly there is no dispute that there is failure on the part of the petitioner to file the declaration and Form ARE-2. However, on the facts of the present case there is no dispute that admittedly the buses have been exported, foreign exchange has been received, etc. Petitioner has made a claim of rebate only qua excise duty on chassis which bears a number and the said number of chassis is correlated with the invoice received by petitioner from Volvo India and the export invoices of buses exported by petitioner. Petitioner has demonstrated this by way of sample copies of purchase invoice of chassis and commercial invoice raised by petitioner on its customers.
The procedure for submitting input-output ratio is inconsequential in the facts of the present case since the claim of the petitioner is only qua excise duty paid on chassis purchased and used in the manufacture of buses which are exported.
There is no dispute that petitioner has to comply with the conditions like export of goods, receipt of foreign exchange, etc. which Respondents are entitled to verify. Also it is important to note that in the facts of the present case the claim of rebate is made qua chassis on which excise duty is paid and each one of the chassis can be used to manufacture only one bus.
The order passed by Respondent No. 2, revisional authority, dated 15th September 2020, and Order-in-Appeal dated 31st December 2013, and Order in Original dated 15th May 2012, is hereby quashed and set aside - Respondent No.4 is directed to consider the application dated 8th December 2011 made by petitioner for claim of rebate of Rs.42,02,638/- on its merits without rejecting the same on the ground that declaration and input-output ratio have not been filed - petition disposed off.
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2024 (9) TMI 691
Area Based Exemption - whether the respondent M/s Paraj Exim, who had purchased a unit from M/s Om Sai Motor Industries, Rudrapur was availing the benefit of exemption under the N/N. 50/2003-CE dated 10.06.2003, when they had taken over the unit from M/s Om Sai Motor Industries, Rudrapur on 02.11.2015? - HELD THAT:- The factual report given by the Superintendent was that the gold and silver unit was availing the benefit of exemption Notification when it was transferred by M/s Om Sai Motor Industries. Since it was only for verification of this fact, and this report has been given by the Superintendent, and the appeal has been rightly dismissed on 22.08.2022. The Revenue has come up in appeal against the above said order. The factual aspect has attained finality, as the case had only been remanded to verify the factual aspect whether before the transfer of unit to the respondent, it was availing the benefit of area based exemption. Once this finding of fact is concluded till Tribunal that when it was transferred to Om Sai Motor Industries in the year 2015, they were already availing the benefit of exemption, hence the same benefit cannot be denied to the respondent.
The learned CESTAT has also referred to the CBEC Circular No. 960/03/2012 dated 17.02.2012, whereby change of ownership or change of the factory premises does not debar the unit to avail the area based exemption. Since the unit was already availing the benefit of exemption when it was transferred to the respondent, the benefit of exemption was rightly assessed by the learned CESTAT in its order dated 08.01.2018.
This Court does not find any merit in the present central excise appeal - Appeal dismissed.
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2024 (9) TMI 690
Determination of assessable value of excisable goods for the purpose of charging Excise Duty - inclusion of freight handling charges calculated separately and shown in the sale invoice in the assessable value - HELD THAT:- The issue in the present case is no longer res integra as decided in LUBI SUBMERSIBLES LIMITED VERSUS COMMISSIONER OF C.E. -AHMEDABAD-II AND LUBI INDUSTRIES LLP VERSUS COMMISSIONER OF C.E. -AHMEDABAD-II [2024 (5) TMI 810 - CESTAT AHMEDABAD] where it was held that 'in the present cases the handling charges is not includible in the assessable value of the excisable goods.'
In view of the above decision in the appellant’s own case the issue in the present case is no longer res integra. Therefore, the demand on the freight handling charges is not sustainable - the impugned order is set aside - appeal allowed.
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2024 (9) TMI 689
Classification of goods - Activated Earth or Washed Clay/BLEACH-9 - to be classified under chapter sub heading No. 25.05 claiming NIL rate of duty or under chapter sub heading 38.02 of the first schedule to the Central Excise Tariff Act, 1985 - HELD THAT:- The adjudicating authority has reached the conclusion that the goods manufacture by the respondent assessee, as per the technical opinion given by M. M. Shah of M/s. Vaibhav Environ Consultant as well as by Dr. Chandrasekharam, IIT Mumbai vide its letter dated 21st October, 2007, wherein it has been opined that ‘Bleach-9’ is also raw clay and not Activated Clay / Earth. It has been mentioned that the clay washed with water and dried is not termed as ‘Activated Clay’ and therefore the properties of the raw clay washed with water will not have different chemical parameters and therefore shall remains same as that of the natural clay. The same opinion has been given by Shri M. M. Shah of M/s. Vaibhav Enviro Consultant dated 22nd October, 2007.
The department has not adduced any evidence to contradict the findings given the above two reports which has formed the basis of adjudicating authority to decide classification of that the product ‘Bleach-9’ under Central Excise Tariff heading 25.05.
Thus, no fresh evidence has been adduced by the department to challenge the findings given in the impugned order-in-original as well as order-in-appeal - there are no merit in the appeal of the department - appeal dismissed.
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2024 (9) TMI 615
Denial of CENVAT Credit availed by the company - steel items like M.S. angles, channels, flats etc - penalty under Rule 26 of Central Excise Rules, 2002 on the Director of company - HELD THAT:- Tthe penalty on the appellant under Rule 26 was imposed consequent to the confirmation of demand of Cenvat credit against the company M/s. Raj Rayon Ltd.
From the plain reading of the rule 26, we find that the penalty under the said rule can be imposed either under sub- rule (1) or sub – rule (2). Sub –rule (1) deal with the act of the person such as transporting, removing, depositing, keeping , concealing, selling and purchasing, or in any other manner deals with , any excisable goods which he knows and has reason to believe are liable to confiscation under the Act or these rules. As per sub –rule 2 (i) any person who issues an excise duty invoice without delivery of the goods specified therein or abets in making such invoice or any other documents or abets in making such documents on the basis of which user of such invoice or document is likely to take or has taken any ineligible benefit under act or the rules made thereunder like claiming of Cenvat credit under Cenvat Credit Rules, 2004.
In the present case as per the operating order reproduced above, it can be seen that no goods have been confiscated, therefore, in absence of proposal/confirmation of confiscation of goods, penalty under Rule 26 (1) cannot be imposed.
It is also found that in the matter of case against the company RAJ RAYON LTD VERSUS C.C.E & S.T. -SILVASA [2022 (7) TMI 1538 - CESTAT AHMEDABAD] the issue involved is interpretation of Cenvat Credit Rules on admissibility of inputs. This issue has been considered in catena of judgments whereby the Cenvat credit was allowed on the material in question such as steel structure goods used for fabrication of structure of plants and machinery, therefore, though we are not deciding merit of the case but considering the facts even when the case of the company M/s. Raj Rayon Ltd is prima- facie strong in their favour, for this reason also penalty under Rule 26 is not sustainable.
The department could not make out any case to impose penalty under Rule 26 on the appellant Shri Gouri Shankar Poddar, Director of M/s. Raj Rayon Ltd.
The penalty is set aside - Appeal is allowed.
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2024 (9) TMI 614
Demand of duty for the month of March-2015 and April- 2015 when the factory remained closed - compounded levy scheme - demand was confirmed on the ground that the appellant’s factory was not remained closed for more than 3 months - HELD THAT:- It is not disputed that the closure of the factory was not on the choice of the appellant whereas, they were compelled to keep the factory closed as per the direction of the Gujarat Pollution Control Board. Therefore, closing of the production was beyond the control of the appellant.
In the identical facts, this Tribunal has dropped the demand of Excise duty for the period when the assessee was forced to close their factory by their state authority - in the case of Sarthi Rubber Industries (P). Ltd. [2017 (3) TMI 1206 - CESTAT NEW DELHI] it was held that 'The closure of units admittedly, beyond the control of the assessee/appellant, is not to be treated as a failure to comply with the provisions and conditions of the notification during the period of forced closure of the units. The nonproduction of excisable goods during these two months can more appropriately termed as ceasing to work rather than failure to comply with the provisions.'
In view of the above judgment, the facts of the same are identical to the facts of the present case, we are of the view that the appellant cannot be fastened with the duty liability during the closure of the factory even though for the 2 months as the same was beyond their control.
The demand is not sustainable. Accordingly, the impugned order is set aside - Appeal allowed.
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2024 (9) TMI 613
Applicability of SSI Exemption Notification No. 8/2002-CE dated 01.03.2002 - Demand of duty on the exported goods on the procedural lapse like goods exported without bond or LUT or non-observation of specific procedure - invocatio of extended period of limitation.
HELD THAT:- There is no dispute in the fact that the goods on which the excise duty was demanded have been admittedly exported, only on the premise that the goods were exported without cover of bond or letter of undertaking and ARE 1 as required under Notification No. 42/2001- CE (NT) dated 26.06.2001 issued under Rule 19 of Central Excise Rules, it was held that goods manufactured by the appellant were not exempted as there was an effective rate of duty i.e. 4% without availing CENVAT Credit and 16% with CENVAT Credit in terms of Serial No. 28 and 34 of Notification No. 10/2002 dated 01.03.2002.
Irrespective of any procedural lapse once it is undisputed that the goods have been exported, in such case if any duty has been paid the same is liable to be refunded as rebate of duty in terms of Rule 18 of Central Excise Rules, 2002 and if the goods have been cleared without payment of duty then no duty can be demanded once it is established that the goods have been exported.
There are force in the submission of the argument that since their entire goods have been exported and if the value of the present case is taken which comes to Rs. 2,01,92,820/-, the appellant is entitled for exemption up to the value of Rs. 1.5 crores to that extent the appellant is not liable to pay duty under SSI Exemption Notification No. 8/2002.
Invocation of larger period of limitation for the issuance of show cause notice - HELD THAT:- As the appellant have cleared the goods for export whereby they have filed all the necessary documents such as export invoices which were endorsed by the Central Excise officers for the stuffing supervision, bill of lading, shipping bills, bank religion certificate etc. The appellant have also declared export clearance in their Central Excise returns. With this detailed disclosure before the department, it cannot be said that there is suppression of fact on the part of the appellant. Therefore, the show cause notice issued on 18.05.2007 for the period 01.06.2002 to 28.02.2003 is clearly time barred. Therefore, the demand is also hit by limitation.
The impugned order is not sustainable on merit as well as on limitation - Appeal allowed.
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2024 (9) TMI 612
Exsicability - manufactured goods as per the Section 2(f) of Central Excise Act, 1944 or not - fly Ash arising in burning coal - HELD THAT:- This issue is no longer res integra as the Hon’ble Supreme Court settled this issue pre and post 01.03.2011, wherein it was consistently held that burning of coal for the purpose of generating power and emergence of fly Ash in this process does not amount to manufacture as the coal is not raw material for manufacturing fly Ash whereas the same is required for generation of electricity, the fly Ash is generated inevitably. In this position the Hon’ble Apex Court taken a view that this cannot be called as manufacture of Fly Ash and accordingly the same is not liable to duty.
The relevant Judgment is in the case of UNION OF INDIA VERSUS AHMEDABAD ELECTRICITY CO. LTD. [2003 (10) TMI 47 - SUPREME COURT] wherein it was held 'it is clear that to be subjected to levy of excise duty 'excisable goods must be produced or manufactured in India For being produced and manufactured in India the raw material should have gone through the process of transformation into a new product by skilful manipulation. Excise duty is an incidence of manufacture and, therefore, it is essential that the product sought to be subjected to excise duty should have gone though the process of manufacture. Cinder cannot be said to have gone through any process of manufacture, therefore, it cannot be subjected to levy of excise duty.'
The impugned order is not sustainable and the same is set aside. The appeal is allowed.
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2024 (9) TMI 550
Recovery of erroneous Refund claim - Interpretation and applicability of Section 11A of the Central Excise Act, 1944 - whether the subsequent judgment of the Hon’ble Supreme Court rendered in M/s Unicorn Industries [2019 (12) TMI 286 - SUPREME COURT] overruling the judgment of M/s SRD Nutrients [2017 (11) TMI 655 - SUPREME COURT] will be applicable in the facts of the instant case? - HELD THAT:- A plain reading of section 11A of the Central Excise Act, 1944 reveals that it makes a distinction between the cases of duties of excise not having been levied, paid, short-paid or short-levied, erroneously refunded, for reasons of fraud, collusion or any mis-statement or suppression of facts or contravention of any provisions of the Act or Rules made with the intent to evade payment of duty and in cases where none of these elements are present, under sub-section (1) of section 11A of the Act of 1944, where any such duty of excise has not been levied or short-levied or erroneously refunded for any reason other than the reasons of fraud or collusion, etc., the Central Excise Officer would, within two years from the relevant date, serve a notice on the person chargeable to the duty calling upon him to show cause why the amount specified in the notice along with interest not be recovered.
The learned Tribunal proceeded to observe to the effect that the Excise Officer had no other choice but to follow the decision of the Hon’ble Supreme Court in M/s SRD Nutrients. Any other action on his part would have been wholly illegal. His order of refund thus was in consonance with the law declared by the Hon’ble Supreme Court at the time when he was passing the order. The learned Tribunal proceeded further to observe that in its view any subsequent change in the legal position would not permit him to invoke the powers of section 11A of the Act of 1944. As is well settled, all legal proceedings on the date when are being decided by any Court, would be governed by the law laid down by the Hon’ble Supreme Court which prevails on such date.
This statutory appeal is a classic example of an instance where precious and valuable time of the Court is lost because of the appellant choosing not to follow the law laid down by the Hon’ble Supreme Court which governs the field. The ratio of the decision rendered by the Hon’ble Supreme Court in the case of Commissioner of CGST and Central Excise (J and K) vs. M/s Saraswati Agro Chemicals Pvt. Ltd. [2023 (7) TMI 542 - SC ORDER] is squarely applicable in the facts of the instant case. Even then, this statutory appeal was filed by the Commissioner of Central Goods and Services Tax and Central Excise, Siliguri Commissionerate on 20th May, 2024. On that date (i.e. on 20th May, 2024), the judgment of the Hon’ble Supreme Court dated 04th July, 2023, was squarely governing the field - this is a fit case for imposition of cost upon the appellant.
As such, this Court imposes a cost of Rs. 20,000/- upon the appellant which shall be deposited with the Sikkim State Legal Services Authority within a fortnight from date.
It is refrained from imposing cost upon the appellant.
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2024 (9) TMI 549
Clandestine manufacture and clearance of the finished goods - entire case is made on the basis of alleged receipt of clandestinely removed Billets by M/s Twenty First Century Wire Rods Ltd. - reliance placed upon the statement of accountant of the TFCWRL - violation of principles of natural justice - HELD THAT:- There is no evidence of clandestine manufacture of appellant’s final product. The revenue couldn’t bring a single evidence of finished goods allegedly manufactured received by any buyer. There is not a single evidence of receipt of sale proceed against alleged clandestine manufacture and clearance of final product. No evidence of transport of any single consignment of alleged clandestinely removed goods was adduced. Third party's evidence is not sufficient to establish the clandestine removal of appellant’s goods particularly when the said third party's statement was not examined under Section 9D of Central Excise Act, 1944.
By reading the Section 9D, it is clear that it is not the optional but mandatory to conduct the cross examination of the witnesses. Since in the present case no cross examination was allowed, the statements cannot be relied upon which is the root of the evidence and in the absence of root tree cannot stand. This issue of cross examination has been time and again considered repeatedly by various forums.
In the case of ANDAMAN TIMBER INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II [2015 (10) TMI 442 - SUPREME COURT] Hon’ble Supreme Court held that 'if the testimony of these two witnesses is discredited, there was no material with the Department on the basis of which it could justify its action, as the statement of the aforesaid two witnesses was the only basis of issuing the show cause notice.'
Thus, it is a settled law that in absence of cross examination the statements cannot be relied upon as evidence as the same lose its evidentiary value.
The revenue could not establish it’s case of clandestine removal. Hence the demand will not sustain - the impugned order is set aside - appeal allowed.
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2024 (9) TMI 548
Levy of personal penalty on each of the appellant u/r 26 of the Central Excise Rules, 2002 - HELD THAT:- This Tribunal in the cases of SHRI S. BHARATH REDDY, MANAGING DIRECTOR, M/S. BRITISH NUTRITIONS PRIVATE LIMITED & SHRI V.S. REDDY, EXECUTIVE DIRECTOR, M/S. BRITISH NUTRITIONS PRIVATE LIMITED, VERSUS COMMISSIONER OF CENTRAL EXCISE, BANGALORE [2024 (6) TMI 1394 - CESTAT BANGALORE], SHRI RAGHAVENDRA, PLANT MANAGER M/S. L.G. BALAKRISHNA & BROS. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MYSORE [2024 (5) TMI 1335 - CESTAT BANGALORE] and M/S JPFL FILMS PRIVATE LIMITED, JALAN JEE POLYTEX LTD., KAVITA INTERNATIONAL AGENCY, KULDEEP SINGH, DP SINGH, R KNITFAB, PERFECT DESIGNER, VK KALRA, RELIANCE INDUSTRIES LIMITED, KANPUR WOOL INDUSTRIES, SWASTIK TRADING CO., APEX CORPORATION AND MANSA TRADERS VERSUS COMMISSIONER OF CENTRAL EXCISE, LUDHIANA [2023 (12) TMI 304 - CESTAT CHANDIGARH] held that once the main appeal is settled under SVLDRS, 2019, the appeals filed by the co-noticees challenging the personal penalty arising out of the same Order-in-Original cannot be sustained.
The appeals filed by the appellants deserve to be allowed and the same are allowed.
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2024 (9) TMI 507
Eligibility for refund of CVD and SAD in cash in terms of Section 11B of the Central Excise Act, 1944 read with Section 142(3) and 142(6)(A) of the Central Goods and Service Tax Act, 2017 - case of appellant is that since they paid the duty only after introduction of GST and they were otherwise eligible to take credit of CVD and SAD, they were entitled for refund.
Whether the appellant can claim the refund in cash in respect of CVD and SAD paid in GST era after being non-eligible for relaxation for making export obligation, relying on the provisions under Section 142 or otherwise?
HELD THAT:- A plain reading of Section 142 would indicate that it primarily provides that in only such situations where the refunds are otherwise admissible under the existing law and it is not possible to refund the same in credit, the said amount will have to be refunded in cash. The Original Authority has examined the eligibility of the refund under the existing law and held that there was no provision for refund of said duty in cash under the existing law in the event of failure of export obligation, for which admittedly he has discharged the said duty.
The Hon’ble High Court of Jharkhand in the Rungta Mines Ltd. case, [2022 (2) TMI 934 - JHARKHAND HIGH COURT], has held that the claim for refund has to be examined within the provisions of the existing law i.e. in this case Central Excise Act and Rules made there under. There are only limited provisions for the cash refund in the existing law in respect of refund of credit taken by the assessee i.e. Rule 5, 5A and 5B of Cenvat Credit Rules 2004, and admittedly the case of the appellants are not falling within these rules, therefore, in the event they were not entitled for refund of credit in cash in respect of CVD and SAD under the existing law, then the provisions of Section 142 would not make them otherwise entitled for the said refund in cash.
Further, in the facts of the case, it is to be clearly understood that they are not seeking refund of CVD and SAD paid due to non compliance of condition for grant of Advance Licence/Advance Authorisation, as they have rightly paid the duty being not eligible for exemption. They are in fact seeking refund in cash of the credit of duty paid towards CVD and SAD, which would have occurred to them as credit under the existing law.
Denial of refund under Section 142(6) of the Act - HELD THAT:- It is obvious that in facts of the case, it would not fall within the provisions of Section 142(6) as there was never a dispute or assessment relating to entitlement of credit, per se, before or after 01.07.2017. This provision covers a situation where there is any refund or admissibility of credit is in dispute and pending before any Judicial or Appellate Forum, who finally decides in favour of appellant post 2017 and as a consequence the person is entitled to said credit or refund. Since, post 01.07.2017, there is no provision to take said consequential credit, Section 142(6) covers grant of refund in cash under such situations.
The refund in cash under Section 142(3) would be admissible only if the said refund is otherwise admissible for refund in cash under the existing law, which is not the case in the present appeal - there are no infirmity in the Order of the Commissioner (Appeals) - appeal dismissed.
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2024 (9) TMI 461
Extended period of limitation - jurisdiction of the authorities - question of fact or question of law - Appellant would submit that if the point of limitation involves jurisdiction of the authorities, then, the findings, though mixed in character, raise a substantial question of law - it was held by the High Court that 'The attempt of the Assessee is nothing but to seek a reappreciation and reappraisal of a factual finding with an intention to delay meeting the demand. The attempt of this nature does not result in the Appeal being entertained by this Court. That is because it raises no substantial question of law.'
HELD THAT:- The High Court has found that there is no substantial question of law which arises in this special leave petition.
The view taken by the High Court is agreed upon - SLP dismissed.
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2024 (9) TMI 460
Maintainability of petition - low amount involved in the appeal - Utilisation of CENVAT credit amounting towards payment of BED and SED on the final products - Rule 3 (7)(b) of the CENVAT Credit Rules, 2004 - HELD THAT:- In view of the latest circular of the Ministry of Finance, Government of India dated 06.08.2024, this special leave petition is dismissed owing to the fact that the subject matter of the dispute is less than Rs. 5 Crore, keeping open the question of law, if any, which arises in this matter.
Application disposed off.
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2024 (9) TMI 459
Doctrine of merger - Forum shopping - Jurisdiction - appropriate forum - requirement to file writ petitions before the High Courts within whose jurisdiction the original adjudication orders were passed - It is respondents contention that petitioners should file writ petitions challenging the orders of the Revisionary Authority before the Madras High Court, Karnataka High Court, Goa Bench of this Court or the Nagpur Bench of this Court.
HELD THAT:- The decision of the Four Judge Bench in Sri Nasiruddin [1975 (8) TMI 126 - SUPREME COURT] directly applies to the facts and circumstances of the case at hand. The question in Sri Nasiruddin (Supra) was whether a writ against an appellate order would lie before the Lucknow Bench or the Allahabad Bench of the Hon’ble Allahabad High Court in cases where the original lis arose in Allahabad but the seat of the appellate forum was in Lucknow - The Court held that if the cause of action arises wholly or in part at a place within the specified Oudh areas, the Lucknow Bench will have jurisdiction. If the cause of action arises in part within the specified areas in Oudh it will be open to the litigant, who is the dominus litis, to have his forum conveniens. The litigant has the right to go to a Court where part of his cause of action arises. In such cases, it is incorrect to say that the litigant chooses any particular Court. The choice is by reason of the jurisdiction of the Court being attracted by part of cause of action arising within the jurisdiction of the Court.
This has been reiterated in Kusum Ingots & Alloys Ltd. [2004 (4) TMI 342 - SUPREME COURT] wherein the Hon’ble Supreme Court held keeping in view the expressions used in Article 226 (2) of the Constitution of India indisputably even if a small fraction of cause of action accrues within the jurisdiction of the High Court, the High Court will have jurisdiction in the matter. However, even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit.
Therefore, since the Revisionary Authority is located within the territorial jurisdiction of the Principal Seat of this Court, petitioner has the option to file the petitions here or before the High Court within whose jurisdiction the original adjudication occurred. Petitioners have the right to file the petitions before the Principal Seat of this Court. Hence, on this ground alone, the present petitions are maintainable before the Principal Seat of this Court.
Prior to the amendment of Article 226 and the insertion of Article 226 (2), the Hon’ble Supreme Court has specifically held that on account of the principle of the doctrine of merger, a writ against an order of the Appellate Authority, would lie only before the High Court within whose territorial jurisdiction the Appellate Authority is located. This principle would continue to hold the field today. Vide the insertion of Article 226 (2), jurisdiction was bestowed upon the High Courts to issue writs to authorities located outside their territorial jurisdiction as long as the cause of action arose within their territorial jurisdiction - this would not in any way denude the powers of the High Court within whose territorial jurisdiction the Appellate Authority is located to issue writs. The fact remains that the appellate order is a significant part of the cause of action for petitioner.
The present petitions are maintainable before the Principal Seat of this High Court since the orders of the adjudicating authorities have merged into the impugned orders of the Revisionary Authority who is located in Mumbai.
This Court has jurisdiction in the present petitions - the petitions stand adjourned to 6th September 2024 for consideration on merits.
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2024 (9) TMI 458
Dismissal of appeal on the ground that there is no justification for the delay - rejection of plea for refund - HELD THAT:- A detailed affidavit setting out reasons for seeking condonation was filed before the CESTAT. The Tribunal however declined to condone the delay dismissing the appeal in limine, as against which the present appeal is filed.
On a perusal of the reasons ascribed to the delay as well as for the reason that the petitioner is a Cooperative Society, which agitates the grant of refund of Rs. 32.00 lakhs (approx.), this Writ Petition is allowed setting aside the impugned order of the CESTAT and restoring the matter to the file of the CESTAT.
Since the appeal itself is of the year 2007, the date of hearing of the appeal is fixed as 09.09.2024 and the CESTAT is requested to take the appeal in E/Appeal No.394 of 2007 for hearing on that date.
Petition allowed.
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2024 (9) TMI 457
Denial of benefit of N/N. 8/2003-CE dated 1st March 2003 - exemption to clearances from small-scale industry (SSI) units upto the threshold of the next slab of assessable value for the period from November 2012 to May 2013 - the brandname ‘Kwality’ used for marketing of ‘cakes and pastries’ manufactured by them did not belong to the assessee.
Recovery of differential duty u/s 11A of Central Excise Act, 1944 along with interest under section 11AA of Central Excise Act, 1944 besides imposing penalty u/s 11AC of Central Excise Act, 1944 - period from October 2010 and March 2011.
HELD THAT:- The issue stands settled by the decision of the Tribunal in their case [2016 (10) TMI 136 - CESTAT MUMBAI]. On the last occasion, the Tribunal, taking note of the facts and circumstances, had remanded the matter back to the original authority.
Thus, the impugned order is set aside - matter remanded back to the original authority for decision in accordance with the law as settled by judicial determination.
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2024 (9) TMI 456
Eligibility of Cenvat credit on the invoices issued by ISD - Duty paying invoices - time limitation.
Eligibility of CENVAT Credit - HELD THAT:- The first Appellate Authority has not disputed the veracity of the fact that the credit was availed on the ISD invoices, but again went on the fact that the Adjudicating Authority has given the observation that some do not contain the service tax no. [registration number] while some of them contain the wrong STC No. It is the case of the Appellant that the issue was not whether such ISD invoices were deficient but the issue was whether the service providers such as GTA was required to be registered and required to make payment of service tax or whether registration number of the banks was available or not.
The requirements for distributing credit by the ISD unit have been fully met in this case, as evidenced by the invoices provided, which include the registration numbers of service providers along with other details. Therefore, the obligation to provide registration numbers is unequivocally fulfilled. This fact has not been disputed in the impugned orders - Additionally, reliance is placed on the case of M/S RAJENDER KUMAR & ASSOCIATESS VERSUS COMMISSIONER OF SERVICE TAX, DELHI-II [2020 (11) TMI 621 - CESTAT NEW DELHI] where it was held that once the requirement of relevant rules for issuance of invoices is met, credit cannot be disallowed on the ground that the ISD was not registered. The mandate to obtain ISD registration is not prescribed in law for distribution, and thus, denying the Credit based on allegation that the New Delhi unit was not registered as an ISD unit for three invoices lacks statutory backing and should not impede the Appellant’s vested rights.
Extended period of limitation - HELD THAT:- Section 11A (1) of the Central Excise Act states that the demand could be raised against the Assessee in cases of default only within a period of one year. The proviso extended the normal period of limitation only in cases where there is fraud, suppression, or misstatement of facts on the part of the Assessee. The Appellant has declared all the relevant details pertaining to availment of credit in the returns filed thereby bringing all the information to the knowledge of the Department - It only stated that the Appellant did not take care properly without alleging that such credit was taken intentionally on incomplete documents. Hence, the extended period cannot be invoked as has been held in the case of COMMNR. OF CENTRAL EXCISE, MUMBAI-III VERSUS M/S. ESSEL PROPACK LTD. [2015 (9) TMI 1084 - SUPREME COURT].
The impugned order cannot be sustained and is accordingly set aside - Appeal allowed.
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2024 (9) TMI 455
Classification of HDP/ PP Bags - appellants pleaded that even if the product manufactured by them falls under Chapter 39, no duty is payable on goods which were supplied against H-Form - for CENVAT credit - cum- duty benefit - HELD THAT:- The entry 3923 covers articles for conveyance or packing of goods; however, it is important to note that it does not talk about the process of manufacture of sacks; the impugned goods are manufactured by weaving; it is pertinent to note that HSN Explanatory Notes under Heading 3923 clarifies that the Heading excludes inter alia, household articles such as dustbins, and cups which are used as tableware or toilet articles and do not have the character of containers for the packing or conveyance of goods, whether or not sometimes used for such purposes (heading 39.24), containers of heading 42.02 and flexible intermediate bulk containers of heading 63.05.
Hon’ble High Court of Gujarat in latest judgment in the case of M/s CTM Technical Ltd. [2020 (12) TMI 1100 - GUJARAT HIGH COURT] has gone into the issue in a detailed manner and has come to the conclusion that if the sacks/ bags are woven from plastic strips, they will be classifiable under Heading 6305.
The impugned bags and sacks having been manufactured by weaving material derived from HDPE/ PP strips merits classification under Heading 6305 - even otherwise, without prejudice to the above classification, the appellants request for giving benefit of CENVAT credit, export and cum- duty is also acceptable - When the duty itself is held to be not chargeable, the question of interest and penalties does not arise and the same have to set aside.
Appeal allowed.
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