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Central Excise - Case Laws
Showing 401 to 420 of 81317 Records
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2024 (8) TMI 1049
Levy of interest on the duty calculated to be short-paid and appropriated against their payment - finalisation of provisional assessment - Rule 7(4) of the CER, 2002 - HELD THAT:- The principle laid down in in Steel Authority of India Ltd. [2019 (5) TMI 657 - SUPREME COURT] is loud and clear that on finalization of provisional assessment, the interest is to be calculated of the duty short-paid from the succeeding month on which the said duty was payable. This principle has been subsequently endorsed by the Hon’ble Supreme Court in Bharat Heavy Electricals Ltd.’s case. The judgment cited by the learned advocate for the appellant in the appellant’s own case is in a different context and set of facts.
In the present case the Appellant has voluntarily discharged the differential duty short paid and chose not to claim refund of the excess duty paid indue course of clearance to their other related interconnected undertaking, obviously for the reason that the said Unit has already availed credit on the excess amount paid. Therefore, to ascertain the interest payable on the differential short paid on finalization of the provisional assessment for the Financial years 2008-09 & 2009-10, in the light of the judgments of Hon’ble Supreme Court in Steel Authority of India Ltd., the matter needs to be remanded to the adjudicating authority for calculation of interest.
The impugned orders are modified and the appeals are disposed of by way of remand to the adjudicating authority.
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2024 (8) TMI 994
CENVAT Credit - removal of inputs or capital goods as such - Activity amounting to manufacture or not - whether the Department was justified in not accepting the claim of ‘Manufacturing’ activity of the Appellant/importer insofar as the dump truck in question is concerned? - HELD THAT:- It is not in dispute that the imported goods falling under chapter 87 that was received in incomplete/unfinished condition, but having the essential character of the complete finished goods. The conversion/assembling of the imported dump truck in SKD condition into fully finished dump truck, could amount to manufacture.
Further, there is also an observation by the commissioner insofar as the price difference is concerned, but however, the same alone may not be a reason for disregarding the very activity of manufacture since any such difference may invite a different action if the same amounts to infraction of any provision/s of the statute. But, in any case, the factum of ‘assembly’ is required to be established, which is the primary condition.
A cumulative reading of OIO and OIA indicates that the Revenue department had seriously disputed the claims of the Appellant including the import in ‘SKD’ condition since, apparently, the same was understood to be a complete/finished product/article which was ready to be used. Hence, requiring the production of documentary evidences by the Show Cause Notice issuing authority is justified since, his satisfaction is paramount.
Rule 2(a) of the General Rules of Interpretation could be applied when the facts are clear and so would Note 6 ibid. Facts are required to be placed on record before applying the Rules, when the importer has claimed that the article was in SKD condition, the invoice does not say so. But in any case, it was its duty to show with evidence, especially when asked, as to the processes undertaken by it to make the article a finished one. The orders relied upon by the appellant are thus distinguishable, clearly, on facts. It therefore, appears prima facie, that the appellant has not been able to demonstrate (1) the condition of the imported article; and (2) the processes to which the imported article was subjected to.
There are no reasons to interfere with the findings of the First Appellate Authority and accordingly, the appeal is dismissed.
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2024 (8) TMI 993
Refund claim of amount which was reversed - CENVAT credit taken on House Keeping Services, Courier Services, Hospitality services and Car hiring services - Statutory interest.
Refund claim of amount which was reversed - whether the appellant could claim input-service tax credit on an output which is neither a service nor excisable goods? - HELD THAT:- A Coordinate Bench of this Tribunal examined the issue in detail in M/S WOODWARD GOVERNOR INDIA LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE-DELHI-IV [2023 (5) TMI 564 - CESTAT CHANDIGARH] where it was held that 'The appellants have claimed that credit attributable to input services used in the manufacture of dutiable goods cleared by them was also sought to be denied. In terms of Rule 2(l), the input services used in the manufacture of dutiable goods cleared by them qualify to be called input services and therefore, credit cannot be denied on the same.'
This being so the period during which the input credit was taken cannot find shelter from credit reversal, just because as per the appellants averments, Notification No. 3/2011-CE (NT) dated 1.3.2011 did not considered ‘trading’ as an exempted service prior to the introduction of explanation, in Rule 2 of Rules, w.e.f. 01.04.2011 and the notification did not have retrospective effect. The fact whether ‘trading’ is an exempted service or not is not a relevant consideration, so long as the output for which the input credit is taken, itself is neither a service nor excisable goods.
CENVAT credit taken on House Keeping Services, Courier Services, Hospitality services and Car hiring services - HELD THAT:- Restriction on input used for personal use or consumption of employees etc. came about only after 01/04/2011. There is nothing to show that the said services were not used for the provision of output service. Further considering the low tax amount involved in these appeals and the appellant being prima facie eligible for the refund it would be in order, to grant such benefits without straining the plain words of the section at this distant date.
Statutory interest - HELD THAT:- The same would be payable on the credit utilized and reversed towards trading activity only.
The impugned order is modified setting aside the portion pertaining to refund claimed on various input services as shown in the table above and allow the refund of an amount of Rs. 98,578/- as claimed by the appellant along with interest paid on the said amount. The rejection of refund on the service tax paid on various services used for trading activities of Rs 39,71,696/- along with interest is upheld.
Appeal allowed in part.
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2024 (8) TMI 992
Refund of excise duty paid - by-product molasses - captive consumption(being exempted under N/N. 67/95CE dated 16.3.1995, as amended) for the manufacture of exempted final products - Rectified Spirit and Extra Neutral Alcohol - HELD THAT:- Undisputed facts are that the appellants are manufacturing sugar and in the process of manufacturing of sugar, molasses emerge as a by-product which in turn used in the manufacture of dutiable products viz., Fuse Oil, Denatured Spirit, Ethyl Alcohol and Carbon dioxide; and also exempted products viz., Rectified Spirit and Extra Neutral Alcohol. The appellant had initially discharged duty on the said molasses for the period September 2007 to April 2008. Later, they filed a refund claim of the duty paid pleading that molasses consumed captively, eligible for exemption under Notification No.67/95-CE dated 16.3.1995, since they have complied with the Condition (vi) of the N/N. 67/1995-CE dated 16.3.1995. Therefore, molasses even if used in the manufacture of exempted products viz., Rectified Spirit and Extra Neutral Alcohol still eligible to avail exemption.
In the present case, the appellant had reversed proportionate credit attributable to manufacture of molasses which cannot make them eligible to claim exemption N/N. 67/95-CE on molasses used in the manufacture of exempted goods, which is the second stage of manufacture of Ethyl Alcohol and denatured spirit. Thus, the credit attributable to the inputs i.e., molasses used in the manufacture of exempted goods is to be statutorily reversed.
This Tribunal analysing the relevant provisions of Rule 6 of CCR, 2004 has taken a view that credit on inputs availed and used in the manufacture of molasses, an input and intermediate by-product, which in turn is used in the manufacture of exempted final products viz., Ethyl Alcohol and denatured spirit, therefore, inputs attributable to the manufacture of molasses, on its reversal, is a sufficient compliance of Rule 6 of CCR, 2004; hence, eligible to the benefit of N/N. 67/95-CE dated 1.3.1995.
The impugned order is set aside - Appeal allowed.
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2024 (8) TMI 991
Clandestine removal - SSI exemption - clubbing of clearances - brand name ‘Parrot which belongs to another (M/s Premier fireworks – defunct) - Department has not produced any document to establish unaccounted purchase of raw material, use of extra labour, receipt of unaccounted sale proceeds - HELD THAT:- From the excerpts of SCN, it can be gathered that the case of the department is that the partnership firm founded by the father with his two sons continue even after his death. Though both sons are independently manufacturing and selling fireworks, as the original Vadivel Fireworks remain and continue, their independent clearances should be considered as manufacture and clearance from a single factory i.e; the original Vadivel Fireworks. This allegation is totally erroneous as original Vadivel Fireworks cannot remain and continue to exist after the death of a partner (Shri Vadivel) unless there is evidence to show that other partners have agreed to constitute and continue the new partnership. No such evidence is forth coming. Even by the case of department both sons have shared 10 sheds each and are doing manufacture and selling of fireworks separately. The clearances of each manufacturer is eligible for SSI exemption. These aspects have not been examined at all. By clubbing the clearances of both premises (20 sheds) the demand of duty has been raised, which in our view cannot sustain.
The department has mainly relied on 711 invoices seized from the premises. In the impugned order the Commissioner (Appeals) has not rendered any finding as to how these 711 invoices are admissible and acceptable in evidence. Further, if such large quantities of fireworks are alleged to be manufactured and sold, there should be proper evidences for purchase of raw materials. The impugned order does not reason this out - The confirmation of duty on the basis of these 711 invoices therefore cannot sustain.
Use of brand name ‘Parrot’ which belongs to M/s. Premier Fireworks which was run by Shri. Vadivel as sole proprietorship - HELD THAT:- After his death this firm has become defunct. So it cannot be said that the brand name ‘Parrot’ belongs to M/s. Premier Fireworks. This allegation also to deny the SSI exemption cannot sustain.
The confiscation of goods, demand of duty and penalties imposed cannot sustain. However, it requires to be stated that the original authority vide Order-in-Original dated 13.03.2002 has confirmed duty demand of Rs.5,828.00 and equal penalty. The appellant has not filed any appeal against this order - As the appellant has not filed any appeal against this order, it has attained finality.
The impugned order is set aside and the Order-in-Original dated 13.03.2002 and 26.03.2002 are restored - The appeals are partly allowed.
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2024 (8) TMI 990
CENVAT Credit - common input services used in the manufacture of dutiable as well as final products which were exempted (exported) - rebate of duty on export of goods - HELD THAT:- On perusal of the impugned order, we find that the issue stands covered by the decision in the case of the appellant's sister concern, M/S. SRI VELAYUTHASWAMY SPINNING MILLS (P) LTD., (UNIT-II) VERSUS THE COMMISSIONER OF G.S.T. & CENTRAL EXCISE [2019 (6) TMI 362 - CESTAT CHENNAI]. The Tribunal after discussing the issue in detail has held that the demand alleging that the appellant has to pay amount after including the value of export clearances also was set aside.
The demand cannot sustain. The impugned order set aside - Appeal allowed.
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2024 (8) TMI 958
Transfer of CENVAT Credit - shifting of unit situated in Chrompet to another of their unit in Appur village during the period from July 2007 to November 2007 - the department informed the appellant that the credit taken beyond October 2007 is not eligible for transfer as the unit at Chrompet had stopped production and was merged with Appur unit - HELD THAT:- Under the CENVAT scheme there is no one to one correlation between the inputs and the final product. During the impugned period there was no time limit during which credit had to be taken on duty paid documents. In the absence of any allegation of fraud or that the documents on which the credit was availed was not proper or that the inputs were not at all used for the manufacture of the final product, the credit cannot be denied. Procedural issues like the ER1 returns being belatedly filed etc. should not come in the way of substantial justice, when the law does not bar such a relief.
Justice V.R. Krishna Iyer speaking for a Division Bench in State of Punjab & Anr. Vs. Shamlal Murari & Anr. [1975 (10) TMI 105 - SUPREME COURT] had held 'We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.'
In facts of the case as discussed, the impugned order approving the rejection of appellants request for transfer of credit as per letter of the Assistant Commissioner, Chrompet Division, is set aside and the appellants prayer allowed - appeal disposed off.
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2024 (8) TMI 907
Determination of assessable value of goods at the factory gate being not sold but transferred to depots - Failure to apply Rule 7 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 properly by adopting the correct sales price prevailing at the depots at or about the same time or nearest time of its clearance from the factory to depots - HELD THAT:- No example/evidence has been stated in the grounds of appeal in support of the said ground to demonstrate as to how the report is incorrect.
The short payment alleged in the demand notice has been mostly due to incorrect application of depot sale invoice in terms of its time of sale from depots to the time of clearance from the factory; also applying the sales invoice of a particular depot to the clearance meant for another depot from the factory, for example, when the clearances is made to Chandigarh depot from the factory instead of applying the sale price of the said depot, the sale price prevailing at Delhi depot has been applied.
There are no reason to interfere with the order of the adjudicating authority as the same is based on correct verification of the data submitted during the course of adjudication; also no contrary data has been placed by the Revenue to establish that the learned Commissioner has not applied the data correctly in arriving at the assessable value of the goods as per Rule 7 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000.
The impugned order is upheld and the Revenue’s appeal is dismissed.
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2024 (8) TMI 906
Denial of exemption under N/N. 30/2004 -CE dated 09.07.2004 as amended - availing input credit on all the inputs under CCR and reversing 5% of the invoice value of the goods under Rule 6 (3) of CCR when the benefit of Notification was availed - HELD THAT:- The co-ordinate Bench has relied on the decision of Apex court in COMMISSIONER OF CENTRAL EXCISE, MUMBAI- I VERSUS M/S BOMBAY DYEING & MFG. CO. LTD [2007 (8) TMI 2 - SUPREME COURT] and held 'In the present case, the fact is not under dispute that the appellant availed the credit at the time of receipt of the inputs which was partially used in the exempted goods but at the time of clearance of the exempted goods, they have reversed the credit. Therefore following the above Hon’ble Supreme Court decision as well as the in terms of Board circular dated 8-11-2007, the appellants have complied with the condition of Notification No. 30/2004-C.E.'
The denial of exemption by the first appellate authority vide impugned order is not in accordance with law. Hence, the same cannot sustain - the impugned order set aside - appeal allowed.
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2024 (8) TMI 849
Failure to discharge duty on 39 numbers of SMPS alleged to have been cleared during the period December 2004 to February 2005 without following Central Excise procedure and discharging appropriate duty - HELD THAT:- It is found that the objection has been raised by the audit during the course of scrutiny of their records subsequent to obtaining their registration as a manufacturer. The period in question is relating to time when they were engaged in trading of rectifiers of SMPS. The relevant invoices against which the SMPS were purchased by the appellant from UTL are enclosed with the paper book. The Revenue could not produce any evidence that supply of additional items along with SMPS purchased from UTL resulted into emergence of a new manufactured product and the activity of assembly carried out by them amounts to manufacture. Neither investigation initiated nor statements have been recorded from the appellant about the activity of assembling, if any, of the additional items supplied with SMPS as observed in the impugned order.
There are no merit in the impugned order - Consequently, the same is set aside and appeal is allowed.
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2024 (8) TMI 848
100% EOU - refund of unutilised CENVAT credit used in the goods that were exported during the period January 2008 to March 2009 - Eligible input service or not - mining activity amounts to manufacture or not.
100% EOU - refund of unutilised CENVAT credit used in the goods that were exported during the period January 2008 to March 2009 - HELD THAT:- The basis on which the original authority had rejected the refund claims vide Order-in-Appeal No.138/2008 dated 31.10.2008 now stands set aside by this Tribunal [2017 (5) TMI 99 - CESTAT BANGALORE] wherein it was observed that 'I also find that in few appeals which are cited in the table, the assessee has not contested certain amount on account of not having sufficient document in their possession and to that extent I reject their refund claims.'
Similarly in [2017 (10) TMI 500 - CESTAT BANGALORE] in the appellant’s own case for the period October 2006 to September 2007, relying upon the above decision of this Tribunal, the impugned orders were set aside and allowed the refund claims filed by the appellant.
Eligible input service or not - mining activity amounts to manufacture or not - HELD THAT:- Taking into consideration the fact that the appellate order relied upon by the Original Authority have been set aside by this Tribunal holding that the mining activity amounts to manufacture and the input services were eligible, the refund claims filed by the appellant for the unutilised CENVAT credit is to be allowed.
The impugned orders are set aside - appeals are allowed.
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2024 (8) TMI 847
Valuation of physician samples - whether it is under Section 4(1)(a) or cost construction method proportionate to MRP in terms of Section 4(1)(b) - HELD THAT:- The issue is no longer res-integra as the same has been decided in the appellant’s own case vide various orders of this Tribunal. One of such order is SUN PHARMACEUTICALS INDUSTRIES LIMITED, UNIMED TECHNOLOGIES LIMITED) VERSUS C.C.E. & S.T. -VADODARA-II [2023 (9) TMI 913 - CESTAT AHMEDABAD] where it was held that 'When we find that price was charged by the assessee from the distributors, the show cause notice is clearly founded on a wrong reason. The case would squarely be covered under the provisions of Section 4(1)(a) of the Act. In view thereof, the Central Excise Rules would not apply in the instant case.'
In view of the above decision of this Tribunal along with other orders of this Tribunal, the issue stand settled in the appellant’s case. Accordingly the demand is not sustainable hence the impugned orders are set-aside - appeal allowed.
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2024 (8) TMI 846
Classification of service - GTA Service under reverse charge mechanism or not - payment towards freight charges for the transportation of goods - HELD THAT:- The appellant have received transportation service in respect of supply of building material and in some of the cases the transporter itself has raised the bill for supply of material and not for transportation and in all the cases of transportation, there is no consignment note issued by the transporter. In one case there is supply of tangible goods which cannot be regarded as GTA service.
As regards the major demand categorized under GTA service which are liable for service tax or otherwise, in number of judgments it has been held that even though there is transportation service but if no consignment note has been issued, the said service cannot be classified as GTA service.
It was held in the case of M/S. VEDANTA LIMITED VERSUS COMMISSIONER OF GST AND CENTRAL EXCISE TIRUNELVELI COMMISSIONERATE, [2023 (9) TMI 1063 - CESTAT CHENNAI] where it was held that 'In the present case, the demand has been raised upon the appellant alleging that they are the recipient of services of goods transport agency services provided by the CHA. Admittedly, the appellant has not been issued a consignment note.'
It was held in the case of AIMS Industries vs. CCE [2024 (1) TMI 721 - CESTAT AHMEDABAD] where it was held that 'Thus, it is categorically held that in case transportation made by vehicle operator (in the present case tractor trolley owners) and no consignment note was issued, the service cannot be held as goods transport agency service liable to Service Tax. Therefore, the impugned order is not sustainable.'
Thus, it is settled that as per facts involved in the present case, applying the ratio of the above judgments, the demand under GTA service is not sustainable - the impugned order is set-aside and appeal is allowed.
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2024 (8) TMI 845
Entitlement for exemption of Sugar Cess under N/N. 42/2001-CE (NT) dated 26.06.2001 for export of sugar - HELD THAT:- This issue is no longer res-integra in light of the judgment in this Tribunal in the case of SHREE MAHUVA PRADESH SAHAKARI KHAND UDYOG MANDLI LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, SURAT-I [2024 (8) TMI 773 - CESTAT AHMEDABAD] where it was held that 'the demand of sugar cess raised as per the impugned order is not sustainable. Hence, the impugned orders are set-aside and the appeals are allowed.'
Thus, the issue is no longer res-integra and according to the said judgment on export of sugar, the sugar cess is not required to be paid.
The impugned orders are set aside - Appeals are allowed.
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2024 (8) TMI 844
Recovery of CENVAT Credit, education cess, interest and penalty - failure to decide the SCN issued to certain noticees - HELD THAT:- It is found that in this case, the Revenue has filed this appeal against the M/s SMS Smelters and the ld.Adjudicating Authority has not granted relief to M/s SMS Smelters. The appeal filed by the Revenue is to challenge the impugned order that the ld.Adjudicating Authority should have taken cognizance of the Noticee Nos.7/7A/7B, 8/8A/8B, 9/9A, 10, 11, 12, 13, 14 & 15 to the show-cause notice, which is not the part of the appeal filed by the Revenue.
There are no merit in the appeal filed by the Revenue. Accordingly, the same is dismissed.
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2024 (8) TMI 783
Recovery of Central Excise Duty - Job Work - re-packing activity - recovery sought on the grounds that the activity undertaken by the appellants amounted to manufacture and exemption under N/N. 50/2003 was not applicable to them as they did not fulfill the conditions therein - HELD THAT:- In the instant case, the appellants have filed a declaration on 20.02.2009 as required by the Department. It is found that thus the appellants have fulfilled the conditions of the notification making themselves eligible for availing the benefit thereof.
Support found from the observation of Allahabad Bench of the Tribunal in the case of M/S. KRSNA URJA PROJECTS LTD., SHRI SHANTANU SANGHI, DIRECTOR VERSUS COMMISSIONER OF CENTRAL EXCISE, MEERUT-I [2017 (12) TMI 1076 - CESTAT ALLAHABAD] wherein it is held 'A liberal attitude, therefore, has to be taken in this regard, when the assessees otherwise are entitled to the benefit of exemption notification. It was also observed that exemption provisions have to be complied with strictly, but some latitude may be shown in case of some requirements which are directory in nature, the non-compliance of such requirements would not affect the substantive benefit of notification, granting exemption.'
CESTAT, New Delhi in the case of M/S. GILLETE INDIA LTD. VERSUS CCE, CHANDIGARH [2011 (1) TMI 859 - CESTAT, DELHI] held that the declaration filed by the principal manufacturer should be treated as the declaration filed by the job-worker.
Thus, as long as the appellants are eligible to avail the benefit of a notification, the same cannot be denied for procedural violations - as the appellants have given a declaration though belatedly, the same must be treated as a valid declaration in view of the Tribunal’s order in the case of M/S VASANTHAM ENTERPRISES VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH [2014 (12) TMI 953 - CESTAT NEW DELHI].
The impugned order is liable to be set aside - Appeal allowed.
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2024 (8) TMI 782
Invocation of extended period of limitation - Recovery of CENVAT Credit - recovery sought on the ground that the supplies were from manufacturers availing the benefit of N/N. 01/2010, which was not availed provided any exclusion under Rule 12 of Central Excise Rules, 2002 - HELD THAT:- It is found that the impugned Show Cause Notice has been issued invoking extended period; at the same time, the existence of the ingredients like mis-declaration, suppression, fraud etc. with intent to evade payment of duty is not established - the appellants had successfully placed on record the fact that the records of the appellant were being audited from time to time and that an endorsement to that effect has been made in the RG-1 Register. As submitted by the learned Consultant for the appellants, the Show Cause Notice refers to the audit of other units while being silent on the audit of the appellants themselves.
Hon’ble Supreme Court held in the case of COMMISSIONER OF CENTRAL EXCISE BANGALORE VERSUS M/S. PRAGATHI CONCRETE PRODUCTS (P) LTD. [2015 (8) TMI 1053 - SC ORDER] that: it is also found as a matter of fact, that the unit of the respondent was audited during this period several times and there were physical inspections by the Department as well. Therefore, there could not be any case of suppression.
It is found that in the instant case, the appellant has been submitting the invoices along with the refund claims from time to time; it is not the case of the Department that there is endorsement on any of the invoices issued by the eight suppliers to the effect that they are availing exemption under Notification No.01/2010. Moreover, it is on record that for some period, the said Notification remains to be listed under the exclusions under Rule 12; the same was restored by issue of Notification No.02/2014 dated 20.01.2014. Therefore, there are reasons for the appellants to entertain a bona fide belief that they are entitled for CENVAT credit. Under the circumstances, no case has been made for invocation of extended period - the impugned Show Cause Notice is barred by limitation and as such the impugned order is liable to be set aside.
Appeal allowed.
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2024 (8) TMI 781
Wrongful availment of Cenvat Credit of 4% Special Additional Duty of Excise (SAD) on the basis of supplementary invoice issued by the appellant’s sister - Rule 9(b) of Cenvat Credit Rules, 2004 - reveue neutrality - HELD THAT:- As of now, it is a settled law that in respect of the stock transfer from one unit to the other unit of the same entity, since, the same is not considered as sale of goods but only a stock transfer, no SAD is payable by the transferor unit to the transferee unit. In the present case, same facts is involved that the appellant’s sister unit has supplied the goods to the appellant without payment of SAD, but subsequently, the SAD was paid and supplementary invoice was issued.
From the various judgments in M/S STI INDUSTRIES VERSUS CCE DAMAN & VICE VERSA [2014 (12) TMI 1130 - CESTAT AHMEDABAD] and M/S MICRO INKS VERSUS CCE. & ST. DAMAN [2014 (2) TMI 207 - CESTAT AHMEDABAD], on the identical issue, it has been settled that in respect of transfer of goods from EOU to other unit of appellant no SAD payment is required. Since, the payment of SAD itself was not required to be made, there is no question of any suppression or willful misstatement, etc. involved in the transaction. Moreover, the transaction is of transfer from one unit to another unit of the same entity, therefore, this is a clear case of Revenue neutrality, for this reason also suppression of fact or willful misstatement, etc. cannot be alleged.
Since, no suppression of fact, willful misstatement, etc. elements are involved in the present case, Rule 9 1(b) cannot be invoked. Accordingly, the appellant’s availment of Cenvat Credit on supplementary invoice is absolutely legal and correct.
The impugned order is set aside. Appeals are allowed.
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2024 (8) TMI 780
Extended period of limitation - CENVAT Credit - Penalties under Rule 26 of Central Excise Rules - Classification of goods - crystalis glass - polished marble slabs - to be classified under CETSH70169000 and CETSH 68022110 or under CETSH 25151220 and 25151290 respectively?.
Extended period of limitation - HELD THAT:- It is apparent from the facts of preceding paras that the appellant has paid duty at his own volition and same has been declared in ER-1 return in the month of January 2008. The visiting officers were also informed about this very fact. In view of this fact, it is found that department was fully aware about the payment of differential amount of duty and therefore there are no reason for invoking extended time proviso for demanding duty under Section 11A of the Central Excise Act, 1944. In view of this the demand Central Excise duty is barred by period of limitation and therefore, the demand on this ground not sustainable.
CENVAT Credit - HELD THAT:- It is matter of record that the Cenvat credit on CVD was availed by the appellant on the basis of valid import documents namely bills of entry. The availment of Cenvat credit on a later date then receipt of duty paid inputs in the factory premises is not a bar under the provisions of Cenvat Credit Rules, 2004. In this regard, reliance placed upon this Tribunal decision in the case of STEEL AUTHORITY OF INDIA LTD. VERSUS COMMISSIONER OF C. EX., RAIPUR [2001 (1) TMI 144 - CEGAT, NEW DELHI] where it was held that 'credit taken beyond six months period prior to 29-6-1995 was not to be reversed.'
Penalties imposed on the partners and employees of the appellant under Rule 26 of Central Excise Rules, 2002 - HELD THAT:- It is matter of record that goods which have been manufactured and cleared by the appellant were duty paid though they have been classified wrongly under different Chapter heading however this being a matter of interpretation and further since the mistake has been corrected by them at the later stage by paying differential amount of duty, the very fact that the goods were cleared on payment of duty and on valid invoices therefore invoking penal provision under Rule 26 of Central Excise Rules, 2002 is legally not justifiable - the imposition of penalty on the partners and employees of the appellant is legally not sustainable and the same is set aside.
The impugned order-in-original is legally not sustainable and is set aside - appeal allowed.
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2024 (8) TMI 779
Refund of erroneously paid duty - refund claimed on the basis of affidavit and certificate as allowed by Ld.Commissioner(Appeals) was inappropriate and not in accordance with law - HELD THAT:- It is noted from records that Revenue has nowhere disputed the fact of discharge of duty by the appellant on the strength of the revised invoice under which the goods were cleared. It is also borne out from records that the respondents had inadvertently discharged excise duty in the month of April 2012 having mistakenly issued invoice No.200000000000097 dated 12.04.2012 for clearance of the entire consignment pertaining to purchase order No.2900001399/109. As it has not been disputed that the respondent was not in a position to supply the entire consignment vide invoice dated 12.04.2012, a fresh invoice for part quantity was issued on 13.04.2012 and goods supplied with respect to the said purchase order.
In the absence of any contrary claim/evidence to the effect of the respondent‟s version, the documentation were sufficient enough to establish the bonafides and uphold the refund claim filed by the respondent, duly establishing the claims of the respondent.
This Tribunal in the case of M/S. PRICOL UNIT - I VERSUS COMMISSIONER OF GST & CE, COIMBATORE [2021 (6) TMI 979 - CESTAT CHENNAI] had held the said procedure to be procedural and while allowing refund of duty in the said case, it had categorically asserted that the department was not empowered to retain duty which is not payable under the provisions of law.
Once an invoice is cancelled, no duty can be demanded thereon and the onus thereafter, lies on the department to establish that goods were actually moved under the cover of the said invoice and invoice subsequently cancelled leading to loss of duty. There is not a shred of evidence to establish such a case in the present matter.
There are no infirmity in the order of the Ld.Commissioner(Appeals) - appeal filed by the department is dismissed.
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9911796707
