|
Advanced Search Options
Central Excise - Case Laws
Showing 321 to 340 of 81317 Records
-
2024 (9) TMI 454
CENVAT Credit - Business Support Service - denial on the ground that the BSS services have no nexus with the output service/manufacturing activities of the appellant - Revenue took a stand after amendment of Rule 2(l) of Cenvat Credit Rules, 2004 with effect from 01/04/2011, wherein “Business activities” have been excluded from the definition of input service - HELD THAT:- Based on the Show Cause Notice issued by the Revenue to Tata Motors they have classified the entire group of services put together as Business Support Service and have raised their Bills under the category of BSS. There is nothing to indicate that Revenue had any objection towards such classification by Tata Motors and officers were accepting their Returns towards such services. Therefore, as a whole Tata Motors have provided the service of BSS to the Appellant. After this, it is to be concluded as to whether such service has any nexus with the manufacturing/output service of the appellant.
This issue has also been considered by this Bench in M/S. HINDALCO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II [2023 (6) TMI 457 - CESTAT KOLKATA] where it was held that 'the services rendered by the ABMCPL is rightly classifiable under the category of ‘Business Support Service’ and ABMCPL has rightly paid Service Tax under the said category. The service tax paid by ABMCPL has been rightly distributed to their group companies, including Appellant. 15. The Appellant has raised the issue of limitation. They stated that the period involved in the Notice is from March 2007 to March 2012 whereas the Show cause Notice was issued on 22.02.2012 and 29.06.2012.'
Thus, the issue is no more res integra - the impugned order is set aside - appeal allowed.
-
2024 (9) TMI 405
Challenge to SCN - recovery of differential Central Excise Duty by enhancing assessable value on account of supply of bought out items which were directly supplied by the suppliers of Petitioner to the site of Petitioner’s customers - HELD THAT:- Admittedly, there is no dispute that the show cause notice dated 5th May 2017 was not adjudicated for a period of almost 6 years and it is only in September 2023 to revive the said show cause notice that a personal hearing came to be fixed on 26th September 2023. The only explanation given by Respondents for delay in adjudication is the change in the functioning of the jurisdiction on account of implementation of GST.
This justification cannot be accepted for more than one reason; firstly, after the show cause notice was issued on 5th May 2017, Petitioner filed a detailed reply of more than 400 pages on 1st July 2017. A personal hearing also took place on 18th September 2017 before Respondent No. 2 and pursuant to the personal hearing, Petitioner filed further additional submissions running into 500 pages on 10th October 2017. This shows that the office of Respondents was functioning post introduction of GST, i.e., post 1st July 2017. Therefore, the justification given in the reply of Respondent No. 2 for not adjudicating the show cause notice on account of revamping of jurisdiction cannot be accepted. The reason given is general in nature and in any case, if the reason was true then the functioning of the department during the period of implementation of GST ought to have come a stand still which is not the case because the department was functioning as evident by the fact of the proceedings which Petitioner attended in September and October 2017.
Thus, relegating Petitioner to attend the show cause notice would be unfair, unreasonable and gross abuse of the power. Respondents have not filed any evidence in support of paragraph 6 of their affidavit to show even prima-facie that the show cause notice could not be adjudicated because of overall in functioning of department on account of implementation of GST.
There are no hesitation in exercising jurisdiction under Article 226 of the Constitution of India - petition disposed off.
-
2024 (9) TMI 404
CENVAT Credit - input - cement and TOR steel used for erection/installation of plant/machinery - reliance placed upon unamended Explanation 2 to Rule 2 (k) of the Rules of 2004 - dismissal of appeal without considering the submissions made by the appellant - principles of natural justice - HELD THAT:- On account of divergent views of various Benches of the Tribunal, the issue as to whether the Cement and Steel Bars used in the Structural foundation to support the plant and machinery embedded qualified either as ‘Capital Good’ or ‘Input’ was referred to a Larger Bench by the Tribunal. The Larger Bench in the case of M/s. Manglam Cement Limited Vs. CCE, Jaipur-I [2018 (3) TMI 1547 - CESTAT NEW DELHI], after considering the decisions of the Supreme Court and amendment of the explanation, allowed the claim of the assessee after recording a factual finding that the use of cement and steel was for laying foundation for erection of ‘Capital Goods’.
Nothing has been put before this Court to show that the Department has successfully challenged the decision of the Larger Bench.
In view of the decision of the Larger Bench, it would be appropriate that orders of the Tribunal are set aside. The matter is remitted to the Tribunal to decide the issue afresh in accordance with law, after considering the usage to which Cement and Steel was put to - Appeal disposed off.
-
2024 (9) TMI 403
Clandestine manufacture and clearance of the finished goods (Structural Items/ Rolled Products) - allegation merely on the basis of Private Records of a Third Party (manufacturer of Billets) and Statements of persons who did not remain present for cross-examination - entire case is made on the basis of alleged receipt of clandestinely removed Billets by M/s Twenty First Century Wire Roads Ltd. - relevancy of third party statements - 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 can not be relied upon which is the root of the evidence and in the absence of root tree cannot stand.
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 - reliance can be placed in ANDAMAN TIMBER INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II [2015 (10) TMI 442 - SUPREME COURT] where it was held that 'we are of the opinion 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, the revenue could not establish it’s case of clandestine removal. Hence the demand will not sustain. Accordingly, the impugned order is set aside and appeals are allowed.
-
2024 (9) TMI 402
CENVAT Credit - interpretation of statute - Rule 6 of CCR - appellant did not maintain separate accounts for Cenvat credit - demand equal to 6% of difference between the sale price and purchase price of the goods traded during the period January 2016 to February 2017 in terms of Rule 6 of Cenvat Credit Rules - interest on delayed reversal of proportionate credit under Rule 14 of CCR - HELD THAT:- The appellant have reversed the proportionate credit attributed to common input service i.e. trading activity therefore, in view of the various judgments relied upon by the appellant, it is settled law that once the proportionate credit attributed to common input services has been reversed, no demand at the rate of 6% of the difference between the purchase price and sale price is sustainable.
As regards the correctness of the reversal of credit, the Revenue can verify the same. Since the appellant have reversed the credit belatedly, it is their submission that during the relevant time they have not utilised the Cenvat credit and maintained the balance more than the amount to be reversed therefore, interest is not payable in terms of Rule 14 prevalent at the relevant time.
Interest on delayed reversal of proportionate credit under Rule 14 - HELD THAT:- As per the Rule 14 it is clear that interest is payable not merely on availment of Cenvat credit but also on utilisation thereof. In the present case, though the appellant have taken Cenvat credit but not utilised the same as they have maintained sufficient balance in Cenvat account which was more than the amount of reversal therefore, in view of the provisions of Rule 14, prevalent at the relevant time, the appellant is not liable to pay any interest.
The demand under Rule 6 is not sustainable. Accordingly the impugned order is set-aside - Appeal allowed.
-
2024 (9) TMI 401
Demand of interest - SCN for demanding the said interest amount is pending for adjudication - principles of unjust enrichment - HELD THAT:- It is seen that the show cause notice demanding this interest was confirmed by the original Adjudicating Authority. The said show cause notice was settled under SVLDRS Scheme in this circumstances the question of refund of the amount confirmed in the said show cause notice does not arise.
The lower Authority has gone into the question of unjust enrichment which was superfluous at the stage when the same authorities have held that refund is not admissible. The question of unjust enrichment would only arise when the authorities come to the conclusion that refund is admissible to the appellant on merits. Once the lower authority come to the conclusion that refund is admissible on merits only then they can go into the question of unjust enrichment - No order under unjust enrichment can be issued rejecting the refund claim, the only order which can be issued under unjust enrichment is sanctioning the refund claim and transferring amount to the Consumer Welfare Fund.
There are no merit in the claim made by the appellant - appeal dismissed.
-
2024 (9) TMI 400
Recovery of differential duties with interest and penalty - scope of expressions deployed in Foreign Trade Policy (FTP) when appended to notification under section 5A of Central Excise Act, 1944 - N/N. 23/2003-CE dated 31st March 2003 - HELD THAT:- The issue is simple enough when viewed through the prism of ‘cross-jurisdictional’ lexicon. Customs authorities, empowered to deal with ‘goods’ in their statutory enactment, are unfamiliar with ‘products’ employed in the language of the Director General of Foreign Trade (DGFT). They have no assistance either from the Foreign Trade Policy (FTP), the notification concerned or any other authority. Indeed, that was not in the ken of the adjudicating authority as it should have been. Customs authorities, though not unfamiliar with ‘similar’, are permitted to draw upon that within the restricted framework set out for the purposes of section 14 of Customs Act, 1962.
In the absence of any discussion by the adjudicating authority in the impugned order, it can only be speculated that the singular approach of customs authorities to ‘goods’ has been transposed on ‘products’ which, in the context of the description deployed in the Letter of Permission (LoP) issued to the appellant and plea of assessee, should have been.
Guidance taken by the observation of the Tribunal in Ginni International Ltd [2001 (9) TMI 165 - CEGAT, COURT NO. IV, NEW DELHI] that 'If the Revenue is of the view that the value of deemed export should not have been taken into consideration for arriving at the value of goods to be allowed to be sold in the DTA, the matter should have been taken up with the Development Commissioner who had initially accorded the permission to the Appellants. This has been the consistent view of the Appellate Tribunal wherever the permission under the Central Excise Act/Rules or Notification is accorded by an authority outside the Department.'
The impugned order set aside to remand the matter back to adjudicating authority for a fresh decision based on such reference.
-
2024 (9) TMI 399
Refund of pre-deposit - clandestine production and clearance of ‘mild steel ingots’ on the basis of investigation conducted by the Central Excise authorities, Nagpur - HELD THAT:- The existing mission of Central Board of Excise & Customs (CBEC) is, inter alia, to provide an efficient system by realizing revenue in a fair, equitable, transparent and efficient manner, it is a necessary responsibility for the field formation of CBEC-tax department, to lay down the specific ground on which the pre-deposit paid, is either eligible or not eligible to the assessee as refund. Inasmuch as the basic details produced by the appellant have not been verified to come to a conclusion, whether such pre-deposit can be refunded or not in terms of the legal provisions of Central Excise Act, 1944, there is a need that such exercise is to be undertaken by the jurisdictional authorities. Hence, for the limited extent of verification of the documents submitted in support of the claim for having made the pre-deposit by the appellant and to decide the issue of refund of pre-deposit of Rs.24 lakhs, it is deemed necessary to remand the case back to the original authority for fresh fact finding and for passing a speaking order.
Interest from the date of deposit till the date of refund - HELD THAT:- The issue has been examined in detail and considering the factual position that the refund has been granted within three months time in respect of the sanctioned amount of Rs.2,50,61,298/-, there are no infirmity in the order passed by the Commissioner (Appeals).
The impugned order is modified to the extent of allowing the appeal filed by the appellant in respect of refund of Rs.24 lakhs to be subjected to a process of verification in the de novo proceedings by the original authority.
-
2024 (9) TMI 384
Denial of credit of input and input services used for generation of the electricity - definition of ‘factory’ in section 2 (e) of the Act is read with rules 2(k)(iii) and rule 3 in Cenvat Credit Rules, 2004 - HELD THAT:- Both units of respondent correspond or come within the meaning of ‘factory’ given in the Act. Input includes all goods used for generation of, inter alia, electricity for captive use. Apart from surplus electricity sold to Gridco, electricity that was surplus in the generating unit was transmitted to the other unit for use in manufacture of the dutiable goods. Hence, it cannot be said that the transmitted electricity was not captively used.
The Tribunal, by impugned final order relied on final order made in M/S. SHREE CEMENT LTD. VERSUS C.C.E. JAIPUR-II [2017 (6) TMI 502 - CESTAT NEW DELHI] where it was held that 'Considering that the electricity has been used in the manufacture of dutiable final products and also the fact that all units belong to the appellant the denial of credit is not justifiable in the present case.'
Thus, no substantial question of law arises regarding use of the electricity manufactured in one unit of respondent but transmitted for use by another for use in manufacture of dutiable goods, to obtain cenvat credit.
Appeal dismissed.
-
2024 (9) TMI 383
CENVAT Credit - Towers and parts of accessories of towers falling under Chapter 73 of the Central Excise Tariff Act, 1985 - denial on the ground that towers were not capital goods as defined under Rule 2 (A) of the said Rules - Jurisdiction - denial also on the ground that BSNL, Eastern Telecom Region and BSNL Eastern Telecom Project provide IUC service and undertook various project related jobs for all the BSNL branches of Eastern India.
Denial on the ground that towers were not capital goods as defined under Rule 2 (A) of the said Rules - HELD THAT:- The Tribunal after going through the factual position found that adjudicating authority has given a clear finding that towers and parts and accessories of towers were goods on which Central Excise Duty has been paid by considering them as excisable goods. Further a provider of all output service is eligible for availing credit on duty of excise and service tax paid on capital goods, input and input service, towers and parts and accessories of towers. In addition, providing of output service, the other factual findings referred to by the adjudicating authority was re-examined and the learned tribunal affirmed the view taken by the Commissioner and held that the Commissioner had rightly dropped the demand in the show-cause.
Denial also on the ground that BSNL, Eastern Telecom Region and BSNL Eastern Telecom Project provide IUC service and undertook various project related jobs for all the BSNL branches of Eastern India - HELD THAT:- The issue was taken up for consideration and the tribunal examined the facts and agreed with a view taken by the Commissioner for dropping the proposal in the show-cause notice not stopping with that the tribunal went further to examine the facts and that the assessee had satisfied the so-called contentions for availing the credit and, therefore, held that the CENVAT credit cannot be denied on account of procedural lapse, if any.
Thus, it is found that the matter being entirely factual and no question of law much less substantial question of law arises for consideration in this appeal.
Appeal dismissed.
-
2024 (9) TMI 382
CENVAT Credit - non-maintenance of separate accounts of ‘inputs’ and ‘input services’ used for manufacturing of ‘exempted goods’ and rendering of ‘exempted service’ for the period 1st April 2009 to 31st March 2013 - HELD THAT:- The impugned order is woefully inadequate in not having examined the facts in the notice for veracity in the light of submissions of the noticee. Furthermore, as has been pointed out by Learned Chartered Accountant, it has been held by the Tribunal in M/S. ACCURA VALVES PVT. LTD. VERSUS CCGST & CE, NASHIK [2018 (12) TMI 428 - CESTAT MUMBAI], as also in EATON FLUID POWER LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, PUNE-I [2023 (12) TMI 172 - CESTAT MUMBAI], that payment of amount as prescribed in rule 6(3) cannot be forced upon an assessee.
It is now settled law that reversal of credit proportionate to that borne by the value of ‘exempted goods’ and/or ‘exempted service’ to value of total goods and/or exempted services suffices for CENVAT Credit Rules, 2004. The adjudicating authority had failed to take note of the facts to which the settled law were be applicable.
The impugned order is set aside - matter remanded back to the original authority for a fresh decision based on submissions of the appellant and the law as settled.
Appeal allowed by way of remand.
-
2024 (9) TMI 315
100% refund of the excise duty on the goods manufactured in terms of N/N. 56/2002-CE dated 14.11.2002 - seeking fixation of special rates - time limitation - HELD THAT:- While, in case of limitation prescribed by a statute, the time prescribed in the statute, including for condonation of delay up to a particular period is required to be respected unless an extraordinary and an exception case is made out for exercise of writ jurisdiction to direct an authority to entertain an application even beyond time. That apart, having regard to the object of granting the area-based exemptions to the industrial units located in specified areas and also having regard to the fact that the entitlement of the petitioner to refund as per the excise notification of 19 of 2008 read with notification No. 34 of 2008 is not disputed, a liberal approach in the matter of condonation of delay is called for.
Ordinarily, the petitioner, with a view to taking benefit of exemptions under the amending notifications of 2008, should have made applications seeking fixation of special rates as was provided in the amending notifications immediately after the judgment of Supreme Court in VVF Ltd’s case [2020 (4) TMI 885 - SC ORDER]. For two years, it could not do so because of pandemic and up to September 2022, he was entitled to apply for as provided under the notifications itself. There is also a provision for condonation of delay in the notifications for a period of one month.
Once the respondents do not dispute the eligibility of the petitioner to claim refund of excise duty in terms of amending notifications of 2008, it would be travesty of justice if the claim of the petitioner is thrown out on the technical ground of delay - this is a fit case for exercise of extraordinary writ jurisdiction under Article 226 of the Constitution and direct the respondent No. 2 to treat the applications filed by the petitioner in time and decide the same on merits.
The Judgment in Greatship (India) Ltd [2022 (9) TMI 896 - SUPREME COURT] does not deal with the issue in the manner as dealt with in this case. Had respondent No. 2 decided the matter on merits or had there been a dispute of fact with regard to the computation of limitation, we would have definitely relegated the petitioner to the alternative remedy provided under the Statute. In the instant case, the Commissioner has failed to take note of a clear directive of the Supreme Court to exclude the period of limitation between 15.03.2020 to 28.02.2022 while computing the limitation provided for filing of any appeal or application before any Court or authority under the statute. The Commissioner also failed to take note of the fact that the petitioner had filed refund appellations in the year 2011 and 2012 itself and made the applications on 27.12.2022 only seeking determination of refund of excise duty in terms of excise notifications of 2008 which were upheld by the Supreme Court in VVF Ltd.’s case.
The impugned order dated 02.02.2023 passed by respondent No. 2 is quashed. Respondent No. 2 is directed to treat the applications dated 27.12.2022 filed by the petitioner in time and pass fresh orders on merits - petition allowed.
-
2024 (9) TMI 314
Applicability of amendment to Rule 6 of the CENVAT Credit Rules, 2004 vide Finance Act, 2010 effective from 08/05/10 to 07/11/10, for the period from January 2009 to December 2009 - restriction to the period from 10/09/04 to 31/03/08 - failure to maintain separate accounts in respect of goods used in the manufacture of exempted and dutiable goods.
HELD THAT:- The issue answered by the Bench in COMMISSIONER OF CENTRAL EXCISE, SALEM VERSUS M/S. BURN STANDARD CO., LIMITED [2013 (2) TMI 35 - MADRAS HIGH COURT] and the factual matrix upon which those questions have been posited, is identical. In this case as well, the Revenue has not disputed the fact that proper reversal of credit was attributable to the DBM and hence, the question of a further demand does not really arise. Thus, there is no necessity for any further enquiry.
As the order of this Court in above case, is stated to have attained finality, applying the ratio of the same, the substantial questions of law are answered in favour of the assessee and order of the CESTAT dated 20.03.2012 is confirmed - petition dismissed.
-
2024 (9) TMI 313
Maintainability of review petition - appropriate forum - Section 35L of the Central Excise Act, 1944 and Order 47 Rule 1 of CPC - HELD THAT:- In the light of Section 35L of the Central Excise Act of 1944, the petitioner statutory right is only before the Supreme Court. Even assuming for the sake of argument that Order 47 Rule 1 is applicable, the review is not maintainable in the light of the judgment passed by this Court in NENJING M. MARAK; SMT. PEJE CH. SANGMA; SHRI NENGJIN CH. SANGMA VERSUS GARO HILLS AUTONOMOUS DISTRICT COUNCIL (GHADC) ; CHIEF EXECUTIVE MEMBER (CEM) ; EXECUTIVE MEMBER (EM) ; SMT. KINTI CH. SANGMA, MEGHALAYA [2024 (3) TMI 1348 - MEGHALAYA HIGH COURT] where it was held that 'The Review Applicant in the guise of the Review Petition wants this Bench to rewrite its Judgment, which is not possible under review jurisdiction. As already stated above review is not an appeal in disguise and there is no error apparent on the face of the record. Therefore, the Division Bench rightly confirmed the order of the learned Single Judge, which does not warrant any review.'
Review Petition is dismissed.
-
2024 (9) TMI 312
Valuation of goods cleared to sister concerned - alleged short payment of duty - HELD THAT:- The Tribunal in the case of BAJAJ TEMPO LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE [2004 (7) TMI 145 - CESTAT, MUMBAI] has observed 'considering the fact that the net amount of differential duty payable by the appellants has been paid and the credit of the same has been taken at the recipient factory of the appellants only to the extent of such payment, we find no justification to sustain the demands confirmed against the appellants in the impugned orders passed by the lower authorities.'
Reliance has also been placed on the Hon’ble High Court of Gujarat in the case of COMMR. OF C. EX. & CUS., VADODARA-II VERSUS INDEOS ABS LIMITED [2010 (3) TMI 656 - GUJARAT HIGH COURT] where it was held that 'The grievance was that the aspect of undervaluation has not been considered by the Tribunal at all. Grievance would have merited acceptance if the ultimate exercise would have benefited the Revenue by collection of duty in the coffers of the exchequer. In the facts of the present case, admittedly no such benefit accrues to the exchequer. In the circumstances, if the Tribunal has chosen not to determine an academic issue, it is not possible to state that any legal infirmity exists in the impugned order of the Tribunal.'
In the instant case also, the situation is identical.
There are no merit in the impugned order - The same is set aside and appeal allowed.
-
2024 (9) TMI 311
Process amounting to manufacture or not - SCN and Order-in-Original without alleging and proving manufacture, devoting efforts and giving finding in respect of classification, is perverse particularly when such a contention is admittedly raised by the appellants in their reply to notice - burden to prove of manufacture not been discharged by the Revenue - cum duty benefit.
Whether a different goods emerged after carrying out the said activity? - HELD THAT:- The SCN and the impugned Order-In-Original is in this regard is vague and confirmation of demand based on assumption and presumption and without adjudicating on above aspect is perverse and not tenable. Since, the root cause of this case is demand of Excuse duty assuming that the activity under taken by the appellant are manufacture, however, the adjudicating authority has not properly examined the overall activity of the appellant, process and whether a different goods emerged after carrying out the said activity. Therefore, without proper examination of the process and the emergence of distinct commodity the demand of Excise duty considering the activities as manufacture cannot be sustainable. Therefore, on the aspects of manufacture the matter needs to be re-examined by adjudicating authority.
CENVAT Credit - denial on the ground that the invoices on which the Cenvat credit was claimed bear endorsement - HELD THAT:- In many cases it has been decided that merely because the invoices are endorsed Cenvat credit cannot be denied, when the duty payment and receipt of raw material and use in the manufacture is established. These aspects are not under dispute in the present case except the charge that the invoices are endorsed. Therefore, the appellant are entitled for the Cenvat credit subject to verification of the document - the denial of Cenvat credit merely on the ground that the invoices are endorsed is not sustainable.
Cum duty benefit - adjudicating authority has denied this benefit on the ground that the appellant had a mala fide intention - HELD THAT:- This contention of the adjudicating authority cannot be agreed upon for the reason that statutory provision under the Act cannot be flouted on the ground that the assessee has mala fide intention or bona fide intention. Even if it is established that the assessee has a mala fide intention, the statutory provision cannot be kept aside and matter cannot be decided on the whims of the authority. For example while confirming the demand, if it is established the assessee is eligible for SSI exemption or any beneficial notification, irrespective whether there is mala fide intention the said benefits provided in the statute cannot ignored. Therefore, merely on the contention that the appellant had a mala fide intention cum duty benefit cannot be denied - the appellant is eligible for cum duty benefit.
The appeals are allowed by way of remand to the adjudicating authority.
-
2024 (9) TMI 310
Benefit of N/N. 2/95-CE dated 04.01.1995 - manufacturing of goods, which were cleared in DTA, out of indigenous or imported raw material - deemed export' effected by the noticee is at par with the 'physical export in terms of Para 9.9(b) of the said Exim Policy 1997-2002 or not - appellant argued right from beginning that the goods in question is manufactured out of indigenous raw material.
HELD THAT:- This Tribunal in the first round of litigation remanded the matter to the Adjudicating Authority reported at PRIME POLY WEAVE LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, SURAT-I [2005 (7) TMI 404 - CESTAT, MUMBAI] where the Tribunal has held that 'we would remand the question of shortages & accounting thereof & consequent duties, if any, and penalties in this case also open in the now being ordered for both sides de novo proceedings.'
Since there was no evidence that the subject goods were manufactured out of imported goods, the matter was remanded with a specific direction to the Adjudicating Authority to establish that the goods were manufactured out of indigenous raw material and/ or imported raw material. The Adjudicating Authority in denovo adjudication, without having any evidence on record to this aspect came to the conclusion that the goods were manufacture out of indigenous as well as imported raw materials. On going through the show cause notice wherein the allegation of manufacture of subject goods out of indigenous and imported raw material is bald and on assumption and the same is not based on any evidence.
Therefore, despite remand the matter to establish this fact, the Adjudicating Authority has decided the source of raw material only on the assumptions. Therefore, in these peculiar facts, the benefit of doubt clearly goes in favour of the appellant. Accordingly, in the absence of any evidence that the imported raw material was used in the subject goods, the appellant cannot be denied of exemption Notification No. 13/98-CE in respect of DTA clearances.
The impugned order is set aside - appeal allowed.
-
2024 (9) TMI 309
Manufacture of plastic items on job work basis - availability of exemption under Notification No.67/95-CE - demand of interest and penalty - revenue neutrality.
HELD THAT:- As per exemption Notification No.67/95-CE, only those goods which are produced in the factory and used in the manufacture of finished goods which are cleared on payment of duty are exempt from duty. The goods which are finished goods by one person can be capital goods for another person. However, the same do not change the nature of the goods being finished goods that being so appellants claim to the benefit of exemption under Notification No.67/95-CE cannot be upheld - there are no merits in the submissions made on this account.
The decisions relied upon by the appellant are distinguishable from the facts of the present case, in case of the M/s Zenith Machine Tools Pvt. Ltd. [2010 (4) TMI 481 - CESTAT, BANGALORE] relied by the appellant the issue was in respect of clearance of the capital goods, not the finished goods produced in the factory of the manufacturer. The only issue in respect of the return of the said goods on which Cenvat credit has been taken within 180 days after job-work.
There are no infirmity in the impugned order - appeal dismissed.
-
2024 (9) TMI 308
Duty liability on HSD and SKO lying in pipelines - variations in batch quantities that was initially communicated by the appellant to the department and the actual quantity on which the Haldia Refinery subsequently paid the duty - HELD THAT:- It is seen from the impugned order, that the learned adjudicating authority had confirmed the demand relating to 12268 K.L. of HSD, essentially because the computation submitted, referred to HB viz. Haldia-Barauni Pipeline while as per the learned adjudicating authority it should have been Barauni-Kanpur Pipeline. However, perusal of the said computation table, tallies with the batch no. and quantity as declared by the appellant to the department. It is also a fact that the pipeline continues from Haldia to Barauni and then onwards from Barauni to Kanpur/Lucknow. There being no separate pipeline perhaps the apparent confusion before the learned adjudicating authority leading to the presumption and restricting the meaning for the pipeline as Haldia-Barauni.
For the typographical omission, the payment of duty duly supported by the challans cannot be ignored and will have to be taken due note of. As the batch numbers and quantity match with the appellant’s claim and stand verified there are no justification for upholding the demand of Rs.3,68,40,813/- as confirmed by the learned adjudicating authority.
It is also noted that the correspondence exchanged within the department by way of verification process and letters issued by them dated 11.04.2014, 26.05.2014, 04.08.2014 and 06.08.2014 confirm the duty payment being made by the Haldia Refinery. Thus, in view of the fact that the total demand as aforesaid stands duly paid along with interest, we find no justification in sustaining the aforesaid order.
The impugned order is set aside and the appeal is allowed.
-
2024 (9) TMI 307
100% EOU - process amounting to manufacture or not - processes undertaken by the appellant on job work basis - duty liability is on the appellant who is a job-worker or the suppliers of raw materials - time limitation - invocation of proviso to Section 11A of CEA.
HELD THAT:- The process of populating the PCBs by the appellant as a job worker is not in dispute. As long as there is transformation of a product into a new product marketable and commercially known comes into existence, manufacture takes place. In the instance case, there is no dispute that the appellant receives raw materials and converts them into a populated PCB which is recognised as entirely a different product and returns the same to the supplier of the raw materials - In the instance case, the tests stand satisfied and the goods manufactured by the appellant amounts to manufacture.
Who is liable to pay duty? - Whether the supplier of raw materials or the job-worker (appellant)? - HELD THAT:- Admittedly, none of these conditions have been satisfied and therefore, the Commissioner considering the clearances made were on principal-to-principal basis has rightly demanded duty from the job worker. Whether non-compliance of these conditions is only procedural as claimed by the appellant needs to be examined. The Supreme Court of India in the case of Commissioner of C. Ex., New Delhi vs. Hari Chand Shri Gopal [2010 (11) TMI 13 - SUPREME COURT] observed that 'The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non-compliance of which would not affect the essence or substance of the notification granting exemption. In Novopan Indian Ltd. [1994 (9) TMI 67 - SUPREME COURT], this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State.'
Time Limitation - HELD THAT:- Having known that the appellant was clearing the PPCBs without payment of duty in 2009 itself, the delay of issuing notice after 3 years cannot be justified to invoke suppression on the part of the appellant. Hence, the demand cannot be sustained beyond the normal period for the show-cause notice dated 07.03.2013, Since all other show-cause notices are for the normal period only.
The appellant has produced a similar document for the relevant periods which have not been considered by the Commissioner in the impugned orders but only on the ground that required procedures are not being followed. However, the fact remains that even if the appellant is liable to pay duty there cannot be duty liability on the appellant in the event the supplier of raw materials has cleared the goods either on payment of duty or under various exemptions as claimed by the appellant. Since, documents have been produced to substantiate their claim these documents need to be verified and to that extent the duty liability on the appellant gets reduced. Therefore, the matter needs to be remanded for verification of the documents produced by the appellant for substantiating their claim that either the goods are exempted or they have cleared on payment of duty.
The penalties under Section 11AC and Rule 25 are set aside - Appeal are remanded for re-quantification of demand based on our observations - appeal disposed off by way of remand.
............
|
9911796707
