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Central Excise - Case Laws
Showing 41 to 60 of 80383 Records
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2024 (4) TMI 1093 - SC ORDER
Maintainability of SLP - petitioners do not press this special leave petition and they intend to file a Review Petition before the High Court - not given scope to participate in the hearing - violation of principles of natural justice - it was held by High Court that if the authority did not follow the direction of the CESTAT, there is gross laches on the part of the authority in passing the order. Had the petitioners brought the fact to the notice of the CESTAT with regard to laches of the authority, in that event the CESTAT could have considered the same. Without doing so, the petitioners having approached this Court, the writ petition is not maintainable.
HELD THAT:- The special leave petition is dismissed as not pressed with the aforesaid liberty - In the alternative, liberty is also reserved to the petitioners herein to file an appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) within a period of one month from today.
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2024 (4) TMI 1092 - SC ORDER
Maintainability of review petition - time limitation - Process amounting to manufacture - purchase of duty paid chassis and undertaking body building activity - motor vehicles described in sub-headings 8702.10 and 8702.90 of Heading 87.02 - the SC held that given the structure of the statute which clearly comprehends Entry 87.02 [by specifically referring to Headings 8702.10 and 8702.90); that the activity carried on by the appellant results in a finished product i.e. useable buses, the appellant’s contention that fabrication does not amount to manufacture, does not merit consideration.
HELD THAT:- There is an inordinate delay of 389, 390 and 389 days, respectively, in filing the present review petitions - there are no good ground and reason to review the order dated 11.01.2023.
The review petitions are dismissed on the ground of delay, as well as, on merits.
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2024 (4) TMI 1091 - CESTAT NEW DELHI
Recovery of differential Central Excise Duty - Clearance of subsidized SSP under concessional rate of duty - Violations of the conditions of the Exemption Notification - entire production was meant for agriculture use only and it was explicitly mentioned so on every pack - case of the revenue is that after the SSP was removed and sold to IPL, IPL further sold it to Mahadhan who, further sold it to Hindustan who misused the SSP for agriculture use to manufacture other products in their industry - HELD THAT:- The diversion of SSP meant for and clearly marked as meant for agriculture use to non-agricultural use was done by Hindustan alone. It is undisputed that all bags of SSP were clearly “meant for agriculture use only”. Such being the case, there was absolutely no reason for Hindustan to have put the subsidized SSP cleared under concessional rate of excise duty and intended for agricultural use to industrial use.
The submission of Hindustan in its appeal that the SSP, which it purchased, was of sub-standard quality holds no water. As rightly pointed out by the lower authorities the Fertilizer Control Order 1994 clearly requires marking of fertilizer meant for agriculture use and non-agriculture use. There is nothing in the records to substantiate the appellant’s claim that the SSP sold by Manglam to IPL and IPL to Mahadhan and further by Mahadhan to Hindustan was of sub-standard quality unfit for agricultural use. Clearly, by diverting the fertilizer meant for agriculture use to other use, Hindustan was responsible for evasion of excise duty. In fact, Manglam and IPL could not have foreseen this diversion by Hindustan.
There are no justification to set aside the confiscation of the seized 33 MT of SSP or to set aside the imposition of 50,000/- redemption fine in lieu of confiscation. There are no justification to modify penalty of Rs. 20,000/- under rule 26 imposed on Hindustan by the Commissioner (Appeals).
Appeal allowed.
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2024 (4) TMI 1090 - CESTAT NEW DELHI
Short payment of Excise Duty - clearance of rough marble slabs - less quantity has been shown by the appellant by way of adopting the incorrect formula for converting the quantity of square feet (Sq. Ft.) of rough marble slabs into Square Meter (Sq. Mtr.) - suppression of facts - invocation of Extended period of Limitation - HELD THAT:- The appellant is admittedly a manufacturer of marble slabs out of the marble blocks. Thus it is clear that appellant is converting irregularly shaped rough marbles into the marble slabs of specific length, breadth and width. The area of slabs with specific dimensions can readily be calculated into Square Feet/ Sqr. Meters. However for the rough block/irregular shaped marble it is only the volume in cubic meters which can be ascertained to some extent of precision.
It is appellant’s case that the production quantity of marble slabs has been calculated by adopting the aforesaid option given - it cannot be denied by the reasonable prudence that once a particular volume of marble block will be converted into slabs of different thicknesses, the area in Sq. Ft./Sq. Mtr. For the slab having more thickness will be less. From the given standards it can be judicially noticed that the area for a slab of 16 mm thickness shall be 175 Sq Ft. per ton of the marble whereas for 18 mm Thick slab it will be 165 Sq, Ft. per ton and for 20 mm thickness slab it will be 150 Sq. Ft. per Ton.
There are no basis of the formula as has been impressed upon by ld. D.R. On the contrary the formula admittedly applied by the appellant is the formula as mentioned in the Central Excise Tariff. No evidence is produced by the department to even demonstrate as to how the formula has wrongly been applied. In the absence of the evidence, the said calculation cannot be held to be a wrong calculation.
Extended period of Limitation - the only ground taken for the same is that the right quantity was not mentioned in the ER-1 Returns and had no audit would be conducted the short-payment by the appellant would not have come to the notice of the department - HELD THAT:- It is a matter of fact that all details were available in the records of appellant whatever was mentioned by the appellant in the ER-1 Returns was as per their records maintained by applying the formula given in the Tariff Act. It is opined that the above all mere oral allegations. There is no evidence to prove that the intent of the appellant was to evade duty. Admittedly the appellant as per selfassessment has discharged his duty liability. The returns have also been furnished. It was now for the Department to scrutinize the returns and to ascertain if the service tax had been paid correctly or not.
Mere omission is not sufficient to be called as suppression of facts to invoke the extended period. Department has to prove that the act was deliberate to not to pay or to short pay the duty - there is no evidence for the same - thus, even extended period has wrongly been invoked. Resultantly, the Show Cause Notice itself is barred by time.
The demand under challenge does not sustain on its merits. It also stands hit by the bar of limitation. Hence the demand is held to have wrongly been confirmed. The order under challenge is therefore set aside - Appeal allowed.
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2024 (4) TMI 1089 - CESTAT AHMEDABAD
100% EOU - Clandestine removal - penalty u/r 26(1) of Central Excise Rules, 2002 - entire charge based on the statement of the appellant - retraction of statements - violation of principles of natural justice - HELD THAT:- The adjudicating authority has not whispered anything with regard to the affidavit filed by the appellant. Moreover, in the event of giving affidavit by the appellant, the adjudicating authority should have conducted examination-in-chief in terms of Section 9D of Central Excise Act and thereafter only the statement could have been relied upon as an evidence but the adjudicating authority has neither made any comment on the affidavit filed by appellant nor conducted any examination-in-chief. Therefore, there is a gross violation of principles of natural justice in this case.
Accordingly, the matter needs to be reconsidered, limited to the imposition of penalty under Rule 26 on the present appellant.
The matter is remanded to the Adjudicating authority for passing a fresh order, after compliance of principles of natural justice.
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2024 (4) TMI 1088 - CESTAT KOLKATA
Method of valuation - goods transferred to another unit for captive consumption - to be valued in accordance with Rule 8 of the Valuation Rules or under Rule 4 - revenue neutrality - Extended period of limitation - maintainability of SCN in the absence of challenge of final assessment order.
Whether the appellant has paid the duty correctly in accordance with Rule 8 of the Valuation Rules or the appellant is liable to pay duty in terms of Rule 4 of the Valuation Rules? - HELD THAT:- The Circular No.692/8/2003-CX dated 13.02.2003 clarified the position that the cost of production of captively consumed goods will be done strictly in accordance with CAS-4. Admittedly, in this case also, the appellant has adopted the above said Circular and was paying duty as per CAS-4 in terms of Rule 8 of the Valuation Rules - the fact is further noted that the Circular dated 13.02.2003 on the basis of which the appellant paid the duty is binding on the Revenue as held by the Hon’ble Apex Court in the case of Ratan Melting and Wire Industries [2008 (10) TMI 5 - SUPREME COURT] - thus, the appellant has correctly paid the duty on the goods in question, which has been captively consumed by the sister unit for manufacturing of excisable goods in terms of CBEC Circular No.692/8/2003-CX dated 13.02.2003. On merit, the appellant has rightly paid the duty as per CAS-4 in terms of Rule 8 of the Valuation Rules - thus, Rule 4 of the Valuation Rules, is not applicable in the facts and circumstances of the case.
Whether the extended period of limitation is invokable or not? - HELD THAT:- For the period from April, 2009 to November, 2013, a show-cause notice was issued on 22nd December, 2015 is barred by limitation as the appellant has not suppressed any facts from the Department while paying duty and on finalization of provisional assessment, Therefore, this issue is answered in favour of the appellant.
Whether it is a case of revenue neutrality or not? - HELD THAT:- The appellant is clearing the goods in question to their sister unit, who is entitled to take the cenvat credit itself. In that circumstances , we hold that it is a revenue neutral situation as held by this Tribunal in the case of M/S. HINDALCO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, BHUBANESWAR-II [2023 (5) TMI 720 - CESTAT KOLKATA], wherein this Tribunal has observed as the entire exercise would be revenue neutral, there is no loss of revenue to the exchequer - thus, it is a revenue neutral situation. On this count also, the appellant is not liable to pay differential duty as adjudicated by the adjudicating authority.
Whether in the absence of challenge of final assessment order, a show-cause notice issued to the appellant is maintainable or not? - HELD THAT:- Admittedly, in this case, during the impugned period, the appellant cleared the goods provisionally paying duty and all the provisional assessments have made final and the said final assessments have been accepted by the Revenue. In that circumstances, without challenging the said final assessment, the Revenue cannot proceed to issue of showcause notice to the appellant - the show-cause notice was not required to be issued without challenging the order of final assessment of the provisional assessments.
The demand of duty is not sustainable against the appellant. Consequently, no penalty is imposable on the appellant.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 1087 - CESTAT KOLKATA
Irregular availment CENVAT Credit - ineligible documents - supplementary invoice/debit notes issued by M/s. Tata Steel Ltd. (TSL) - violation of provisions of Rule 3 and Rule 9 of the CENVAT Credit Rules, 2004 during the impugned periods - HELD THAT:- Although the appellant has produced all the documents, it is the finding of the authorities below that they could not correlate the documents for availment of CENVAT Credit on the strength of debit notes issued by M/s. Tata Steel Limited.
In these circumstances, it would be in the interests of justice to remand the matter back to the adjudicating authority with a direction to the adjudicating authority to sit with the representative of the appellant for correlation of the debit notes along with invoices with the certificate issued by M/s. Tata Steel Limited showing that debit notes have been issued to the appellant, on the strength of which the appellant is entitled to take CENVAT Credit.
Matter remanded back to the adjudicating authority for verification of the documents only. The appellant is also directed to approach the adjudicating authority within a period of 15 days from the date of receipt of this Order, who shall sit with the representative of the appellant for correlation.
The appeals are disposed of by way of remand.
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2024 (4) TMI 1086 - CESTAT CHANDIGARH
Refund of excess duty paid under protest - date on which notification came into effect.
Enhancement of duty by N/N. 22/ 2014 dated 12.11.2014 and N/N. 24/2014 dated 02.12.2014 - clearances already effected on the date of the Notifications i.e. 12.11.2014 and 02.12.2014, the invoices issued to the customers on the existing lower rate of duty - Duty paid in the subsequent month at enhanced rate.
HELD THAT:- An identical issue in the appellant’s own case was considered by the Ahmedabad Bench of the CESTAT [2021 (11) TMI 112 - CESTAT AHMEDABAD]. After considering the various decisions of the High Court and the Supreme Court the issue was decided in favour of the appellant by holding From the above provision it is absolutely clear that any notification issued under Sub-section (1) or Sub-section (2A) come into force on a date when it is published and offered for sale on the date of its issue.
The impugned order is not sustainable in law, therefore, the same is set aside by allowing the appeal of the appellant - Appeal allowed.
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2024 (4) TMI 1062 - SUPREME COURT
Validity of order of High Court remanding back the order for re-consideration - Failure of the Department to follow the instructions given by the CESTAT - Doctrine of Merger - Clandestine removal - excess quantities of stock were stored for illicit removal - absence of document containing detailed explanation - HELD THAT:- The direction issued by the tribunal undisputedly has got merged with order dated 27.11.2008 it would be apt and appropriate to note at this juncture itself the contention raised by Shri Shekhar Naphade, learned Senior Counsel which is to the effect that by virtue of the direction issued by the tribunal under its order dated 06.09.2006 having attained finality, the authorities subordinate to the CESTAT having failed to comply with the directions so issued should have resulted in automatic allowing of the appeals by the High Court, though at first blush looks attractive, same cannot be accepted for reasons more than one.
Firstly, the direction so issued by the tribunal on 06.09.2006 included a direction to the respondent to pass orders afresh which had resulted in respondent passing the orders on 21.11.2008 and 27.11.2008 respectively - Secondly, the High Court under the impugned order has itself observed that letter dated 20.01.2001 has not been relied upon by the revenue as an adverse document against the assessee while adjudicating the SCN’s - Thirdly, it has been the consistent stand of the respondent-department that the said letter was in fact supplied to the assessee’s representative and the same has been discussed in threadbare by the High Court under the impugned order.
The High Court has opined and rightly so that the said letter dated 20.01.2001 (with enclosures) which is claimed by the appellant has not having been furnished is only a ruse for not replying to the show cause notices and it would in no way prejudice the appellant’s claim, particularly in the background of reliance not having been placed by the respondent-authority for adjudicating the SCN’s and in the absence of prejudice having been caused to the appellant no fault can be laid at the doors of the respondent.
The High Court has also rightly not remitted the matter to the adjudicating authority for considering the matter afresh and the findings of the High Court recorded under the impugned order, having been affirmed, it is deemed appropriate to reserve the liberty to the appellant to urge all contentions before the tribunal including the one urged before this Court namely to demonstrate as to how prejudice has been caused to the appellant by non-furnishing of the said letter dated 20.01.2001 (with enclosures) and contentions of both parties are kept open and the order of remand made to the tribunal by the High Court under the impugned order would stand affirmed subject to the observations made.
The appeals stand disposed of.
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2024 (4) TMI 1061 - SC ORDER
Maintainability of appeal - low tax effect - Classification of goods - printing of gray wrappers which is used in the packaging of cigarette packs. - Classification under heading 4823.90 or under heading 4901.90 - Manufacturing of goods through job worker - it was held by CESTAT that goods in question are properly classified under heading 4901.90 which attracts NIL rate of duty and no demands of duty can survive against the assessee - HELD THAT:- The Civil Appeals are disposed of, owing to low tax effect keeping open the question of law, if any.
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2024 (4) TMI 1037 - CESTAT KOLKATA
Denial of irregularly availed CENVAT Credit - allegation on the ground that there was no manufacturing facility in factory premises and appellant was engaged only in paper transactions - cross-examination of statement of witnesses not allowed - HELD THAT:- In this case the appellant has intimated suspension of their manufacturing activities vide letter dated 10.07.2008 and thereafter surrendered their registration on 01.08.2008 and whole of the investigation have been started thereafter. Moreover, the appellant has procured inputs from various dealers, manufacturers and suppliers and made payments through account payee cheques and investigation was conducted at their end and no inculpatory statement has been made by the supplier of the goods. Further, the appellant has supplied to various recipients of the goods whose investigation was also conducted at their end - It is also evident on record that whatever Cenvat credit has been taken by the appellant, the appellant has utilized the same for payment of duty on the clearance of the goods and also paid sufficient amount of duty through PLA.
The case of the Revenue is based only on the statements of certain transporters and on assumption and presumption that as no machinery was found at the time of investigation, the appellant was involved only on paper transactions and certain transporters have made inculpatory statements against the appellant - It is found that the transporters were not allowed to be crossexamined by the appellant in terms of section 9D of the Central Excise Act, 1944 which prescribes that to rely on the statement of a witness, the witness has to be tested by recording their statement at the time of adjudication in chief and thereafter to offer for cross-examination which has not been done in this case, therefore, the statement of the transporters which are inculpatory cannot be relied upon in terms of Section 9D of the Act.
The appellant is entitled to take Cenvat credit which has been utilized for payment of duty and the appellant has paid duty through PLA also. In that circumstances, the impugned proceedings are not sustainable - the demand on account of denial of Cenvat Credit is set aside, as the demand against the appellant is not sustainable, therefore, penalty on the appellants are not imposable. Moreover, the appellant No.1 is the proprietor of the appellant No.2, therefore, penalty on both the appellant is also not sustainable in the facts and circumstances of the case.
The impugned demand confirmed and penalty imposed on the appellant are set aside - Appeal allowed.
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2024 (4) TMI 1036 - CESTAT CHENNAI
Exemption for captive consumption - benefit of exemption N/N. 67/95 dated 16.3.1995 - Rectified Spirit - excisable goods or not - covered by the term ‘final product’ or not - HELD THAT:- This Bench has considered almost identical issue, in their own case to hold that the denial of exemption Notification No.67/95 was incorrect, for the reasons discussed therein, by also relying upon an earlier order of Chennai Bench in the case of Sri Ambika Sugars Ltd. [2014 (11) TMI 919 - CESTAT CHENNAI] has held The Tribunal in the case of RAJSHREE SUGARS AND CHEMICALS LTD. AND OTHERS VERSUS COMMISSIONER OF CENTRAL EXCISE, PUDUCHERRY AND OTHERS [2014 (11) TMI 919 - CESTAT CHENNAI] held that the denial of exemption notification 67/95 on molasses captively consumed to manufacture Rectified Spirit & DNA cannot be justified.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 1011 - CESTAT BANGALORE
100% EOU - Levy of Excise Duty on wastages - shortages are to be considered as handling loss as claimed by the appellant - extension of benefit of no duty or liable to pay duty on these admitted losses/shortages - Time Limitation - HELD THAT:- From the N/N. 23/2003-CE dated 31.3.2003 and the provisions at para 6.8 of the Foreign Trade Policy clearly mentions that the DTA clearances include Scrap/waste/remnants arising out of production process or in connection therewith may be sold in DTA, as per SION notified under Duty Exemption Scheme, on payment of concessional duties as applicable, within overall ceiling of 50% of FOB value of exports. In respect of items not covered by norms, DC may fix ad-hoc norms for a period of six months and within this period, norms should be fixed by Norms Committee. Ad-hoc norms will continue till such time norms are fixed by Norms Committee. Sale of waste / scrap / remnants by units not entitled to DTA sale, or sales beyond DTA sale entitlement, shall be on payment of full duties. Scrap / waste / remnants may also be exported.
In the present case, it is an admitted fact that the goods were manufactured and cleared but were found short either while loading or transportation or for various other reasons which have not been explained or have any norms in the industry that envisages such shortages/losses etc; the fact that they have approached the Development Commissioner/DGFT substantiates the Revenue’s argument that there was no concept of wastages or losses allowed to the Appellant.
Since it is an admitted fact that neither the Development Commissioner nor the DGFT have fixed any norms in spite of their repeated representations, the question of allowing these wastages as ‘handling losses’ is not within the purview of the Department. Therefore, the appellant is liable to pay duty on these wastages/losses. The eligibility of concessional duty is available, provided the DTA clearances are within 50% of overall ceiling of the FOB value of exports. The appellant claims that their clearances are within this 50% limit and if so, they are eligible for the benefit of the concessional rate of duty. Notification No.4/2006 dated 01.03.2006 is not relevant for 100% EOU.
Time Limitation - HELD THAT:- It is an admitted fact that the shortage was detected by the Department only on 25.08.2011 and the show-cause notice was issued on 29.01.2014 which is within 5 years of the date of knowledge. In fact, no return was filed explaining the shortages and it was noticed only after visiting the unit and the return was filed at a later date. The Hon’ble Supreme Court in the case of THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. MEHTA & CO. [2011 (2) TMI 2 - SUPREME COURT] held that A bare perusal of the records shows that the aforesaid reply was sent by the respondent on receipt of a letter issued by the Commissioner of Central Excise on 27-2-1997. If the period of limitation of five years is computed from the aforesaid date, the show cause notice having been issued on 15-5-2000, the demand made was clearly within the period of limitation as prescribed, which is five years.
Based on the above the demand is within 5 years from the date of knowledge and therefore the claim of the appellant that it is time barred is unacceptable.
The demand of duty upheld but the benefit of the Notification No.23/2003-CE dated 31.03.2003 extended, without extending the benefit of SAD since the appellant has not proved that VAT has been discharged on these shortages. The matter stands remanded for redetermination of duty after extending the benefit of Notification 23/2003-CE dated 31.03.2003.
The appeal is allowed by way of remand.
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2024 (4) TMI 1010 - CESTAT AHMEDABAD
Classification of goods - agglomerate plastic granules - classifiable under Heading 39159029 as waste, paring and scrap of plastic, or as polymers of ethylene in primary form under 39019090? - availability of concessional rate of 5% under Notification No. 21/2002-Cus., dated 01.03.2022 - HELD THAT:- The chapter heading 3915 does not apply to waste, parings and scrap of a single thermoplastic material transform into primary form and for such material the appropriate heading is 3901 to 3914. A perusal note would indicate that the terms primary form applies to lumps, powder and granules. The chemical examiners report clearly holds that the goods are single thermoplastic material and are in form of lumps, powder granules etc. The chemical examiner further holds that the goods are in primary form. In these circumstances, the attempts to sustained classification of goods under heading 3915 cannot be upheld. In terms of Notes 6 and 7 and in terms of the chemical examiner report, it is apparent that the goods are not classifiable under heading 3915 being of single thermoplastic material in primary form.
If single thermoplastic material is transform into primary form from waste scrap, it would remain classifiable under heading 3901 to 3914. Thus, it is apparent from the explanatory note of HSN that the impugned goods cannot be classified under heading 3915 and have to be classified under heading 3901 to 3014 depending on the material. In the instant case, the Chemical Examiner Reports have clearly indicated that the material is polyethylene and it is in primary form.
In this instant case, the goods being polyethylene are classifiable under heading 3901 - there are no merit in the impugned order and the same is set aside - appeals are allowed.
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2024 (4) TMI 1009 - CESTAT MUMBAI
CENVAT Credit - inputs and input services used for the generation of electricity which, later on, is cleared to its sister unit situated at Urse free of cost - reversal in terms of provisions of Rule 6(3A) of Cenvat Credit Rules, 2004 with interest and penalty - HELD THAT:- In the case in hand there is no such allegation about sale of electricity in the show cause notices but authorities below have proceeded on the premise that during this period the appellant had sold the electricity to MSEDCL also. As per records, during the period in issue the electricity was supplied only to the sister unit at Urse and that too free of cost and in an identical situation this Tribunal in appellant’s own case M/S. FINOLEX INDUSTRIES LTD. VERSUS COMMISSIONER OF CGST, KOLHAPUR [2023 (3) TMI 1478 - CESTAT MUMBAI] has held that no reversal needs to be made in respect of electricity supplied to their sister concern by the appellant. In that appeal at some point of time the electricity was also sold to MSEDCL, therefore for calculation purposes the matter was remanded back to the adjudicating authority but since in the case in hand there is no allegation of sale of electricity to MSEDCL in the show-cause notice therefore no remand is required.
In yet another decision the Hon’ble Rajasthan High Court, in the matter of COMMISSIONER OF CENTRAL GOODS AND SERVICE TAX, JAIPUR VERSUS SHREE CEMENT LIMITED [2018 (9) TMI 822 - RAJASTHAN HIGH COURT] where the facts were almost similar, while dismissing the Appeal filed by Revenue, held that the decision of the Hon’ble Supreme Court in the matter of M/S. MARUTI SUZUKI LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III [2009 (8) TMI 14 - SUPREME COURT] will not apply and the view taken by the Tribunal is just and proper that the cenvat credit of inputs and input services used in the power generated in the captive power plant and transferred to the sister concern is admissible to the assessee since the input and input services were ultimately used in the manufacture of dutiable final products either by the assessee or by their sister concern.
The appellants are entitled to cenvat credit on inputs and input services used for production of electricity which is transferred to its sister unit at Urse free of cost - the impugned order is set aside - appeal allowed.
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2024 (4) TMI 1008 - CESTAT NEW DELHI
Recovery of amount of CENVAT Credit short reversed/not paid by the Noticee alongwith interest and penalty - exempt goods or not - benefit under Notification No. 12/2012-CE dated 17.03.2012 (Sr. No. 179) - assessment in case two options available - revenue neutrality - Extended period of Limitation - HELD THAT:- The amount of CENVAT credit available on the inputs and the amount which needs to be paid as duty on the final products cannot determine whether the goods are dutiable or exempted. If, duty is paid, even if it is one rupee, the goods are duty paid and it is immaterial how much, if any, CENVAT credit on inputs or input services was available. Therefore, the goods cleared by the appellant claiming the benefit of Notification No. 12/2012-CE (Sr. No. 179) are clearly exempted goods as the appellant had claimed the benefit of exemption notification and should have been considered as such while calculating the amount of CENVAT credit to be reversed under rule 6(3A) of CCR.
The alternative submission of the appellant is that it can now re-assess the duty, forego the exemption notification 12/2012-CE, and claim CENVAT credit of the duty paid on its inputs - HELD THAT:- It is true, that if more than one options are available, the assessee can choose what is most beneficial to it. If it chooses wisely, it will gain and if it does not choose wisely, it will lose. In this case the appellant had made the choice while self-assessing the duty. Assessment including self-assessment is appealable before the Commissioner (Appeals) and there is nothing on record to indicate that the appellant had appealed against its assessment - the contention of the appellant cannot be accepted.
In ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT] the Constitution Bench of the Supreme Court held that all assessments, including self assessment, can be assailed before the Commissioner (Appeals). There are no provision under which the assessee can retrospectively revise its own self-assessment.
Revenue neutrality - HELD THAT:- The concept of revenue neutrality was only brought in through a series of judicial pronouncements for the limited purpose of determining if the assessee could have had “an intention to evade” to justify invoking extended period of limitation while raising the demand under section 11A. The settled legal position is that if the entire exercise is otherwise revenue neutral, the assessee could not have had any intention to evade and, therefore, extended period of limitation cannot be invoked. So far as the normal period of limitation is concerned, revenue neutrality or even revenue negativity makes no difference to the application of the provisions of the law.
Extended period of limitation - HELD THAT:- It is for the department to prove that one of the elements required to invoke the extended period of limitation were present in the case. It makes no difference if the assessee is operating under self-assessment as every assessee operates by self-assessment. It must also be noted that if the excise returns require information in a particular form and once it has been provided as required, the assessee has no further responsibility - Indisputably, the entire period of demand in this case is beyond the normal period of limitation and hence the demand is time barred.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 962 - GUJARAT HIGH COURT
CENVAT Credit - mentioning of wrong address in the invoice - HELD THAT:- The orders dated 22.08.2019 and 20.08.2020 are hereby quashed and set aside. The matter is remanded back to the adjudicating authority-Additional Commissioner of CGST and Central Excise who shall decide the proceedings on remand, after giving fullest opportunity to the petitioner, without in any way being influenced by this order and on merits. None of the findings and observations recorded in this order would in any manner influence or prejudice either side.
Application disposed off.
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2024 (4) TMI 961 - CESTAT MUMBAI
CENVAT Credit - Input service distribution - credit distributed by M/s. Parle Biscuit Private Ltd. i.e. ‘inputs service distributor’ to the appellant, a contractual manufacturer/job worker, for the period prior to 01.04.2016 is in accordance with Rule 7 of CENVAT Credit Rules, 2004 as prevailing at the relevant time or not - HELD THAT:- Prior to 01.04.2016 also, Rule 7 allows distribution of credit to ‘its manufacturing units.’ Here the words used are ‘its manufacturing units’ which, in absence of anything contrary, cannot be said to be limited to ‘manufacturing unit’ owned by Parle Biscuits only. The first principle of interpretation is that the words used in any statute have to be interpreted without adding any words. The term ‘its manufacturing unit’ has certainly a wider term to include an outside manufacturing unit or the job worker. Another thing which supports my aforesaid view is the Registration Exemption Notification issued in the year 2001 under Rule 9(2) of Central Excise Rules, 2001 which provides for exemption from registration of the authorised person to manufacture goods on behalf of principal manufacturer - As per the agreement between appellant and Parle Biscuits, they were receiving the raw materials from them and finished goods were processed at their factory with their won labour but Trademarks of Parle Biscuits were cleared on payment of duty to the depot of Parle Biscuits.
Number of decisions have been placed on record by the learned Counsel in support of her submission that even prior to 01.04.2016 Rule 7 ibid permitted distribution of credit by the Input Service Distributor even to contract manufacturer or the job worker. I have gone through all the decisions. In my view the issue involved herein is no more res integra in view of those decisions and in particular the reference answered by the Larger Bench of the Tribunal on the very same issue in the matter of the M/S. KRISHNA FOOD PRODUCTS, MS. MARIAMMA R. IYER AND M/S. PARLE BISCUITS PVT LTD. VERSUS THE ADDITIONAL COMMISSIONER OF CGST & C. EX [2021 (7) TMI 296 - CESTAT NEW DELHI] in which it has been held even in terms of the provisions of rule 2(m) and rule 7 of the CENVAT Rules, as they stood prior to 01.04.2016, the appellant could distribute CENVAT credit in respect of the service tax paid on inputs services to its manufacturing units, including a job workers.
M/s Parle Biscuits Pvt Ltd. i.e., the input service distributor has rightly distributed the Credit to the appellant and the appellant is justified in availing the same - the impugned order is set aside - appeal allowed.
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2024 (4) TMI 960 - CESTAT KOLKATA
MODVAT Credit - proper duty paying documents or not - challans-cum-invoices issued by M/s. SAIL, do not contain the duty payment details - HELD THAT:- N/N. 15/1994-C.E.(N.T.) dated 30.03.1994 provides relaxation to avail MODVAT Credit on the basis of challans-cum-invoices issued by stockyards of manufacturers subject to the condition that such challans-cum-invoices shall contain all the duty payment particulars. In the present case, it is alleged that the challans-cum-invoices based on which the appellant availed credit did not contain the details of payment of duty and accordingly, the MODVAT Credit has been disallowed.
There is no allegation in the Show Cause Notice or the impugned Order-in-Original that the appellant had not received the goods in the premises of the factory. There is no allegation that the supplier viz. M/s. SAIL has not made payment of duty. If there was any doubt regarding payment of duty by M/s. SAIL, then the Department should have demanded the duty from M/s. SAIL and not from the appellant. As far as the appellant is concerned, they have received the goods into the factory on payment of appropriate duty and utilized the same in the manufacture of their finished products based on the challans-cum-invoices issued by the depots of M/s. SAIL. Thus, we observe that there is no dispute regarding the duty-paid nature of the goods.
The substantive benefit of MODVAT Credit cannot be denied due to procedural lapses.
Thus, the substantive benefit of MODVAT Credit cannot be denied on the ground of procedural lapses. Accordingly, the appellant is eligible for the MODVAT Credit on the basis of the challans-cum-invoices issued by the depots of M/s. SAIL - the impugned order is set aside.
Appeal allowed.
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2024 (4) TMI 959 - CESTAT KOLKATA
Non-payment of duty fixed for the month of March 2000 - Compounded Levy Scheme - invoking the proviso to Section 11A of the Central Excise Act, 1944 alleging suppression of fact - extended period of limitation - HELD THAT:- It is observed from the Show Cause Notice that the demand has been raised by invoking the provisions of Section 11A of the Act and penalty has been imposed for contravention of the provisions of Section 11A on the ground that the appellant had mala fide intention to evade the payment of duty.
The appellant has declared the non-payment of duty for the month of March 2000 in the return filed by them. They have not suppressed any information from the Department. The Show Cause Notice was issued by invoking the proviso under Section 11A on the ground that the appellant had deliberately not paid Central Excise Duty. No suppression of fact with intention to evade payment of duty exists in this case. The appellant has declared all the information in their RT-12 return and the Notice has also been issued upon scrutiny of the RT-12 return filed by the appellant for the month of March 2000. Accordingly, the extended period of limitation as provided under proviso to Section 11A is not invokable in the present case.
The demand has been raised by invoking the proviso to Section 11A of the Act. As the ingredients for invoking proviso to Section 11A does not exist in this case, the demand confirmed in the impugned order is not sustainable on the ground of limitation.
The demand confirmed in the impugned order set aside on the ground of limitation - appeal allowed.
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