|
Advanced Search Options
Central Excise - Case Laws
Showing 481 to 500 of 81323 Records
-
2024 (8) TMI 11
Interpretation of statute - expression ‘capital goods cleared as such’ includes capital goods cleared as such after being used in terms of Rule 3(4) of the Cenvat Credit Rules, 2002 or not - Whether a two member bench of the Tribunal could have adopted an interpretation of the phrase ‘as such’ which is different from the interpretation given by a Larger Bench of the Tribunal in the case of MODERNOVA PLASTYLES PVT. LTD. VERSUS COMMISSIONER OF C. EX., RAIGAD [2008 (10) TMI 51 - CESTAT, MUMBAI]?
HELD THAT:- The appellant has paid duty on the depreciated value of the capital goods. Thus, the duty has been discharged on depreciated value, therefore, the reversal of credit will be confined to the extent of use of capital goods i.e. value of the capital goods will be depreciated based on its use over the period of use. Keeping in view the above ruling of the High Court, as the removal cannot be treated as removed “as such”, therefore, the duty has to be discharged on the depreciated value. Accordingly, the view taken by the Customs, Excise & Service Tax Appellate Tribunal in its order dated 07.07.2011 would go contrary to the law as held in COMMISSIONER CENTRAL EXCISE COMMISSIONERATE VERSUS M/S RAGHAV ALLOYS LTD. [2010 (4) TMI 294 - PUNJAB & HARYANA HIGH COURT].
Appeal allowed.
-
2024 (8) TMI 10
Entitlement to Excise Duty exemption - Marketability of the product Low Sulphur Heavy Stock (LSHS) - Department took the view that the electricity generated by the usage of LSHS, is not only used in relation to manufacture of final product but also such electricity is being used for the day to day requirement of running their township, refinery hospital, etc. - Time limitation.
HELD THAT:- On going through the Test Report given by the Quality Control Department of IOC, it is seen that they have compared the test results of the product vis-à-vis BIS standards. In many cases, the parameters are not matching. In particular, the flash point of the LSHS is given as 50oC to 64oC the minimum requirement is 76oC. Similarly the water content found is 1.5% to 5% whereas the maximum permissible limit is 1% only. When such critical parameters are not met, the product cannot be marketed/sold by the Appellant to any third party. In respect of the petroleum products unless the BIS specifications are met, it would be illegal to sell such products. Therefore, the Test Report on the face of it, clarifies that the product is not marketable.
The very same issue was before the Banglore Tribunal in the case of MANGALORE REFINERY & PETROCHEM. LTD. VERSUS C. CE & CUS., BANGALORE [2006 (4) TMI 361 - CESTAT, BANGALORE], wherein the Tribunal has held 'we are of the view that the impugned product, as such is not marketable even though it is loosely termed as LSHS. Since the impugned product is not marketable, the same is not excisable. If the impugned product is not excisable, there is no merit in the demand of duties.'
As on date, this decision of the Banglore Tribunal has not been stayed or overturned. Therefore, the issue has reached finality.
Time Limitation - HELD THAT:- All the records of the LSHS manufactured and utilized for generation of electricity which is used within the factory and used in the township etc. are very much recorded. The Department did not take any timely action on raising the demand in respect of the LSHS used for the electricity which was consumed at their township refinery, hospital etc. Therefore, the entire demand for the period January 2007 to March 2007 is time barred. Hence the confirmed demand is set aside even on account of limitation to this extent.
The appeal is allowed fully on merits and partly allowed on limitation.
-
2024 (8) TMI 9
Valuation - inclusion of cost of free supply materials in the assessable value in terms of Rule 10 (A) (iii) of Central Excise Valuation Rules 2000, read with Rule 6 of the said Rules - time limitation - penalty - revenue neutrality.
Whether the demand of duty raised invoking Rule 10A (iii) read with Rule 6 of Central Excise Valuation Rules, 2000 alleging that the value of goods supplied free of cost by the principal manufacturer has to be included to arrive at the assessable value (transaction value) is legal and proper? - HELD THAT:- The provisions of Rule 10A can be applied when excisable goods are produced or manufactured by a job worker on behalf of a person and cleared to the buyer of the principal and/or cleared to a depot or a consignment agent. The intention of the Legislature was to capture the tax on the goods, on the value of the said goods when cleared to the ultimate consumers.
In the case in hand, it is found that provisions of Rule 10A (i) and (ii) does not apply as recorded correctly by the first appellate authority. Provisions of Rule 10A (iii) gets attracted as 10A(i) or (ii) does not apply. The said provision (iii) very clearly mandate that in a case not covered under clause (i) or (ii), the provisions of foregoing rules, wherever applicable shall mutatis and mutandis apply for determination of value of the excisable goods.
The provisions under Rule 10 A of Central Excise Valuation (Determination of Price of excisable goods), Rules 2000 has to be applied. In the present case, the Cenvated raw materials have been supplied free of cost to the appellant by the principal manufacturer. However, while clearing the wiring harness, the appellant has not included the value of these free materials in the assessable value - The cost of the intermediate product has been included for arriving at the assessable value by the principal manufacturer who has availed the credit on the free inputs supplied. The principal manufacturer would be eligible to avail credit of duty paid on intermediate product (wiring harness) by the appellant. The whole situation is revenue neutral.
Time Limitation - Penalty - HELD THAT:- There is no positive act of suppression established against the appellant except for the allegation that the value of free materials was not included for payment of central excise duty. These free materials have been received by the appellant from the principal manufacturer on job work challans. These being the facts, the invocation of extended period cannot sustain. For this reason, the demand raised invoking the extended period requires to be set aside - For the same reasons, the penalty imposed in respect of both show cause notices are set aside. The appellant is liable to pay duty along with interest for the normal period only.
Appeal allowed in part.
-
2024 (8) TMI 8
CENVAT Credit - issuance of invoices without supply the material - retraction of statements - burden of proof - personal penalty on the partner of the appellant firm - HELD THAT:- On perusal of the material on record, and also the statements of the persons recorded during the investigation, it appears that Sh. Varinder Kumar, who is the partner of M/s Blue Star Exports, is the mastermind of issuing invoices without supply the material. Further, it is found that Sh. Varinder Kumar of M/s Blue Star Exports has admitted in his statement that they purchased prime material and sell the same in the local market on cash basis and pass the Cenvat Credit of the same to the manufacturer by changing the description of the goods and the price so as to show as “scrap”.
It is found Sh. Kuldip Singh, the partner of the appellant in his statement dated 07.09.2017 has clearly admitted that they have taken the Cenvat Credit on cuttings which are basically “scarp” whereas the manufacturer’s invoices show the description of the goods as “prime finished goods”. Regarding the taking of Cenvat Credit whether the same is correct or not, he stated that he cannot say anything.
The appellant had voluntarily debited the Cenvat Credit availed on the strength of invoices issued by M/s Blue Star Exports on 14.12.2016 i.e. before the date of statement of Sh. Kuldip Singh, partner of the appellant, recorded on 07.09.2017 and he has not retracted his statement till date which clearly shows that he has accepted his lapse - as for Rule 4 of the Cenvat Credit Rules, 2004 read with Rule 9(5) of the Cenvat Credit Rules, 2004, the burden of proof regarding the admissibility of the Cenvat Credit shall lie upon the manufacturer or provider of output service before taking such credit.
There is no infirmity in the impugned order passed by the learned Commissioner (Appeals), accordingly the same is upheld by dismissing the appeal of the appellant - appeal dismissed.
-
2024 (8) TMI 7
Interest of delayed refund - relevant date for calculation of such interest - rate of interest - HELD THAT:- The dispute in the present appeal is no more res integra and is squarely covered by the decision of the Tribunal in the case of M/S. MARSHALL FOUNDRY & ENGG. PVT. LTD., M/S. MARSHALL AUTO CAST PVT. LTD., M/S. MARSHALL FOUNDRY WORKS PVT. LTD., M/S. MARSHALL CASTING LIMITED AND M/S. MARSHAL ATUT INDUSTRIES LIMITED VERSUS COMMISSIONER OF CGST, FARIDABAD [2019 (11) TMI 1269 - CESTAT CHANDIGARH] where it was held that 'appellants are entitled to claim the interest on delayed refund from the date of deposit till its realization.'
As the issue has already been examined by the Tribunal and consistent view has been taken all along. Therefore, the Appellant is entitled to claim of interest on the delayed refund from the date of deposit till the date of its realization.
The impugned order cannot be sustained and is accordingly set aside - Appeal allowed.
-
2024 (8) TMI 6
100% EOU - remission of duty under Section 23 of the Customs Act 1962 read with Rule 21 of the Central Excise Rules, 2002 and in terms of N/N. 22/2023-CE dated 31.03.2003 - HELD THAT:- The undisputed facts are that the goods that were imported by the appellant who is an 100% EOU and stored in the warehouse licenced under Section 58 of the Customs Act, 1962 were destroyed in a fire accident. It is an admitted fact the goods were insured only for the value of the goods and not for the duty foregone at the time of import. It is also a fact that due to unforeseen circumstances, the fire accident occurred at the factory premises and the insurance company after thorough investigation, having satisfied that the fire was caused due to unavoidable circumstance, settled the claim of insurance. The department also had drawn Mahazar and taken stock of the goods that were destroyed in the fire. The fact that the goods were not insured for duty element does not prove that there was any negligence on the part of the appellant.
The issue stands settled in as much as in similar set of facts in appellant’s own case of M/S AMERICAN POWER CONVERSION (INDIA) PVT. LTD. (now known as M/s. Schenider Electric IT Business India Pvt. Ltd.) VERSUS COMMISSIONER OF CUSTOMS & CENTRAL EXCISE, BANGALORE. [2023 (10) TMI 1422 - CESTAT BANGALORE] has held 'as per the above provisions when the Assistant/Deputy Commissioner of Customs is satisfied that the imported goods have been lost, the question of demanding duty on these goods does not arise.'
In the present case since the fire occurred due to unforeseen reasons and the goods were destroyed in the fire, the question of demanding duty does not arise. In the result, the impugned order is set aside - Appeal allowed.
-
2024 (7) TMI 1559
Maintainability of appeal - low tax effect involved in the appeal - HELD THAT:- The dispute between the parties has been referred for determination to the Lok Adalat.
The tax effect of the subject matter of the special leave petitions and the appeals is falling below the threshold contained in the circular dated 22 August 2019 of the Central Board of Indirect Taxes and Customs.
The Special Leave Petition and the Appeals are disposed of as not pressed.
-
2024 (7) TMI 1456
Clandesine Removal - CTD bars and TMT rods - seizure of cash - addition based on the statements of the employees - discrepancy as regards the excess supply over and above the invoice to Raasi Traders - whether the Department has established the clandestine removal as alleged and upheld in the impugned order?.
Cash seized - addition based on the statements of the employees - HELD THAT:- The cash found and seized from the 1st Appellant has been explained to be the advance received from M/s. Nagaraja Agencies, which is also supported by the statements of the employees as well as the proprietor of M/s. Nagaraja Agencies and hence, the said cash was not attributable to the alleged clandestine sale. In any case, the addition was made solely based on the statements of the employees which statements have been retracted on a later point of time. Thus, a reasonable belief that the said amount did not represent the sale proceeds of the clandestinely removed goods has to be drawn because no incriminating evidence was found during the search, and nor is there any supporting evidence to this effect.
Alleged discrepancy as regards the excess supply over and above the invoice to Raasi Traders - HELD THAT:- The Department has not denied the contention of the 2nd appellant that in the book seized from Raasi Traders, name of the first appellant is not reflected, even in their letter dated 28.8.2012 they have clarified that they did not purchase any goods without invoice from the first appellant. The document seized from Raasi Traders does not contain or show the appellant’s name as alleged by the Revenue and in any case, there is also no corroborative evidence to support the Revenue’s case. The said letter is clearly a retraction to the earlier statement of the Partner and apart from this, there is absolutely no other evidence, much less any incriminating evidence placed on record, that was unearthed by the search team.
The department has nowhere denied the facts as explained by the 2nd appellant that the document alleged to be seized from their premises did not show anywhere the name of the first appellant who is alleged to have supplied goods in excess. It also remains undisputed about the clarification offered by the 2nd appellant as regards the alleged excess stock found vis-à-vis the actuals found in their book and hence, the alleged excess stock was nothing to do with the 1st appellant.
The department has not established clandestine removal or clandestine sale by the 1st appellant and nor has the department succeeded in corroborating the alleged excess supply to Raasi Traders to be of clandestinely sold goods. Hence, there was nothing on record to justify even the levy of penalties and interest and therefore, the interest charged on the appellants and the penalties imposed on them cannot sustain.
The impugned order is set aside - appeal allowed.
-
2024 (7) TMI 1455
CENVAT Credit - transportation of goods from their factory to the buyer's premises as well as to their own units which were further used in the manufacture - Disallowance of credit of service tax paid on freight charges incurred by appellant up to the buyer's premises.
CENVAT Credit - transportation of goods from their factory to the buyer's premises as well as to their own units which were further used in the manufacture - Department was of the view that the transportation was beyond the place of removal and therefore, the appellant is not eligible for Cenvat credit of the service tax paid on such freight charges incurred for transportation - periods from July 2011 to November 2011, December 2011 to March 2012, April 2012 to December 2012, January 2013 to September 2013 and October 2013 to September 2014 - HELD THAT:- The very same issue was considered by the Hon’ble High Court, Madras in the appellant's own case in [2019 (9) TMI 328 - MADRAS HIGH COURT]. As per judgment dated 20.08.2019, the Hon’ble High Court categorically held that the appellant is eligible for credit.
Following the decision of the Hon’ble High Court in the appellant's own case, it is held that the credit availed on service tax paid for freight charges incurred for transportation of goods to the appellant's unit at Jamshedpur and Uttarakhand is eligible. The impugned order disallowing the credit, and confirming the demand, interest and imposing penalties on this issue is set aside.
Disallowance of credit of service tax paid on freight charges incurred by appellant up to the buyer's premises - HELD THAT:- The appellant is eligible for credit if the freight charges has been included in the assessable value for payment of central excise duty. The Larger Bench in the case of M/S. THE RAMCO CEMENTS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, PUDUCHERRY [2023 (12) TMI 1332 - CESTAT CHENNAI-LB], has held that the place of removal has to be ascertained on the basis of the decisions passed by the apex court in the case of COMMISSIONER CENTRAL EXCISE, MUMBAI-III VERSUS M/S. EMCO LTD. [2015 (8) TMI 200 - SUPREME COURT] and COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. [2015 (4) TMI 857 - SUPREME COURT]. The Board’s Circular issued in 2018 also clarifies the same.
In such circumstances, this issue requires to be remanded to the adjudicating authority, who is directed to ascertain the place of removal. The appellant is to be given personal hearing and is at liberty to furnish documents to establish their contention. In case the appellant has included the freight charges in the assessable value for payment of central excise duty, they would be eligible to avail credit of service tax on such freight charges.
The impugned order is modified to the extent of allowing the credit of service tax for outward transportation to the appellant's own unit. The demand, interest and penalties imposed in this regard is set aside - The issue of availment of credit on outward transportation up to the buyer's premises is remanded to the adjudicating authority for fresh consideration.
Appeal allowed in part and part matter on remand.
-
2024 (7) TMI 1454
Valuation - incusion of amount of subsidy received by the appellant under the Rajasthan Investment Promotion Scheme, 2010 from the State Government in the assessable value of the goods cleared during the period in dispute - Section 4(3)(d) of Central Excise Act - period during 1.4.2016 to 31.03.2017 - HELD THAT:- Reliance placed on the latest decision in M/S HARIT POLYTECH PVT. LTD. VERSUS COMMISSIONER, CENTRAL EXCISE & CGST- JAIPUR I, GANPATI PLASTFAB LTD., M/S APEX ALUMINIUM EXTRUSION PVT. LTD., M/S MAHA MAYAY STEELS, M/S. TIRUPATI BALAJI FURNACES PVT. LTD., M/S. TRANS ACNR SOLUTIONS PVT. LTD., M/S. FRYSTAL PET PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & CGST- ALWAR [2023 (3) TMI 1120 - CESTAT NEW DELHI], where on reference the issue was once again settled that in the promotion policy involved in the present case, the subsidy does not reduce the sales tax that is required to be paid by the assessee as the entire amount of sales tax collected by the assessee from the customer is paid. The subsidy amount, therefore, cannot be included in the transaction value for the purpose of levy of central excise duty under Section 4 of the Excise Act.
The principle of law that emerges from series of decisions is that the VAT amount paid by the assessee using VAT 37B challans would be construed as actual payment of VAT and thus will not be included in the transaction value in terms of Section 4(3)(d) of the Act - the impugned order holding otherwise needs to be set aside. In the present case also, the entire amount of sale tax collected from the customer is paid and not retained by the appellant.
The other submissions made on the point of extended period of limitation or the liability towards interest and penalty, not considered, which otherwise do not survive.
The impugned order deserves to be set aside - Appeal allowed.
-
2024 (7) TMI 1453
CENVAT Credit - input service - clearing and forwarding agency service - denial of credit on the ground that warehouses and dealers points are not the place of removal - whether the warehouse / depots are the place of removal or not? - HELD THAT:- As apparent from the said definition clause (2) thereof includes warehouse to be a place of removal and clause (3) thereof includes depots as the place of removal. Admittedly, the cement manufactured by the appellant has been transferred to the warehouse/depot. Admittedly, the C & F Agency service is obtained for the transit from factory to warehouse or depot. As already observed from the above definition, the warehouses as well as depot are also the place of removal.
The decision of Bombay High Court in the case of CCE, NAGPUR VERSUS ULTRATECH CEMENT LTD., [2010 (10) TMI 13 - BOMBAY HIGH COURT] as relied upon by the appellant has been upheld by Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT]. The ratio of the decision is that all input services as has been received till the place of removal are eligible for the availment of Cenvat Credit.
Thus, it is clear that the service of C & F agent as received by the appellant since was received till the place of removal; it is held that appellant is eligible for the availment of Cenvat Credit. The denial of said availment is not sustainable. The order under challenge is liable to be set aside - appeal allowed.
-
2024 (7) TMI 1399
Challenge to assessment order - Board’s Circular No.98/1/2008-Service Tax, dated 04.01.2008, issued vide F.No.345/6/2007-TRU - HELD THAT:- The CESTAT, Bangalore in Golflinks Software’s case [2018 (8) TMI 331 - CESTAT BANGALORE] where it was held that 'The Apex Court in the case of Orient Paper Mills Ltd. Vs. UOI [1968 (5) TMI 15 - SUPREME COURT] held that Appellate Authority which exercised quasi-judicial power should not be influenced by departmental clarifications and Board Tariff Ruling while adjudicating the cases.'
A plain reading of the question framed leaves no room for any doubt that Board’s circular became the subject matter of the substantial question. The High Court gave its stamp of approval to the order of authority below and the appeal was dismissed.
There exists no substantial question of law, which needs adjudication - Appeal dismissed.
-
2024 (7) TMI 1398
CENVAT Credit - input services - period March 2009 to May 2013 - denial on the ground that those services are not confirming to the definition of ‘input service’, contained in Rule 2(l) of the CENVAT Credit Rules, 2004 - HELD THAT:- The disputed services involved in the present appeal were considered as ‘input service’ by the Tribunal in the case of C.C.E., DELHI-III VERSUS FIAMM MINDA AUTOMOTIVE LTD. [2016 (3) TMI 64 - CESTAT NEW DELHI], SECURE METERS LTD VERSUS CE & ST-UDAIPUR [2018 (8) TMI 950 - CESTAT NEW DELHI], ACCENTURE SERVICES PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-II [2015 (3) TMI 1114 - CESTAT MUMBAI], M/S RELIANCE INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, LTU, MUMBAI [2016 (8) TMI 123 - CESTAT MUMBAI] and RMZ INFOTECH PVT. LTD. VERSUS COMMR. OF CENTRAL TAX, BENGALURU EAST [2021 (11) TMI 1108 - CESTAT BANGALORE].
During the course of the arguments, the appellant submitted fairly that post 01/04/2011, they would not be entitled for CENVAT credit on ‘Rent-a-Cab’ service and accordingly, he would not press for the same. The appellant would pay up that part of the demand, as it relates to Rent-a-Cab service post 01/04/2011. We accept the contention of the appellant in view of the exceptions provided under the definition of ‘input service’ w.e.f. 01/04/2011.
The impugned order is modified to the extent of confirming the demand of CENVAT credit availed on Rent-a-Cab service w.e.f. 01/04/2011 along with interest. Rest of the demands are however set aside - Appeal allowed in part.
-
2024 (7) TMI 1397
Valuation of clearances - undervaluation of goods sold from their depot and consignment agents - period from 2006-07 to 2010-11 - applicability of Rule 7 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - recovery alongwith interest and penalties - HELD THAT:- The appellant has transferred their goods to their depot at Delhi and six consignment agents located at various places from where the goods were sold to unrelated buyers. The appellant were following Rule 7 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 and discharged duty at the time of clearance from their factory. As per Rule 7 of the Rules, Central Excise Duty was paid at the factory gate at a price prevailing at the depot / consignment agents’ end at the same time or the time nearest to the time of removal of goods from their factory.
The appellant has adopted the method of payment of duty as mentioned above in Rule 7 of the Central Excise Valuation Rules, for the clearances effected to their depot and consignment agents. Once duty has been paid at the time of clearance from their factory as provided under Rule 7, the appellant is not liable to pay any differential duty based on subsequent sale of the same goods from the depot or consignment agents, at a higher price to independent buyers - the ld. adjudicating authority has given a finding stating that the appellant has adopted Rule 7 of the Central Excise Valuation Rules and there is no evidence available on record to establish that the goods were sold at a different price from the depot or consignment agents’ end at the same time.
Interest - HELD THAT:- There is no other evidence available on record to establish that the appellant has not adopted the price prevalent at the depot / consignment agents at the same time or at the nearest time when they paid the duty at the time of clearance from their factory. Accordingly, it is held that the appellant has rightly paid duty as per Rule 7 of the Central Excise Valuation Rules, 2000 and there is no liability to pay any differential duty on account of difference in the value of clearance of the same goods from the depot / consignment agents subsequently to independent buyers - the appellant is liable to the differential duty only to the extent of Rs.23,052/- confirmed in the impugned order along with interest.
Penalty - HELD THAT:- The issue involved in this case related to valuation of clearances effected through the depot and consignment agents of the appellant. There is no suppression of fact with intention to evade payment of tax established in this case and hence, no penalty is imposable on account of confirmation of the above said demand.
Appeal disposed off.
-
2024 (7) TMI 1396
Challenge to provisional assessment - mere change of opinion - Eligibility for abatement on the value of bought-out items in the absence of any findings by the adjudicating authority regarding the availment of CENVAT credit on such brought out items - non-verification of actual purchase price of bought-out items supplied directly to site.
Whether the First Appellate Authority is justified in setting aside the provisional assessments?
HELD THAT:- The Common/Final order of this Bench in the appellants own case for earlier periods in BHARAT HEAVY ELECTRICALS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, TIRUCHIRAPPALLI [2019 (3) TMI 1362 - CESTAT CHENNAI] which was relied upon by the appellant and we find that the facts are almost identical - it was held in the said case that 'once the appellants have not been found in breach of Guidelines contained in the Office Order dt. 22.12.2004 the finalization of provisional assessment indeed will naturally be treated to have done only following the said Order. It is also to be noted that certain verifications regarding the value and weight of DTS items and the items supplied by assessee’s units for all items covered by commercial invoices are required to be done periodically, to ensure that at the time of finalization of assessment there will not be any need to check even figures with respect to any documents other than the commercial invoice.'
There are no change in the facts or the circumstances and that all the objections/contentions urged here by the Ld. Joint commissioner stand answered, that is to say, this Bench has considered all such grievances of the department and has answered such grievances by resting on the office memorandum. The crux of the findings thus appears to be that as long as the revenue does not have any grievance against the Office Memorandum and as long as the assessee is not found to have violated the terms and conditions in the said office memorandum, the same is binding on both the assessee as well as the revenue - thus, setting aside of the assessments by the First Appellate Authority was uncalled for and hence, there are no reasons to sustain the impugned order.
The view of the First Appellate Authority is a mere ‘change of opinion’ and, as long as the view expressed by the Adjudicating Authority after following the guidelines in the Office Memorandum is not found to have resulted in revenue loss, setting aside the finalised assessments on account of ‘change of opinion’ is clearly impermissible in law and hence, unsustainable.
The impugned order is set aside - appeal allowed.
-
2024 (7) TMI 1395
Refund of unutilized CENVAT credit lying in their books of accounts under Rule 5 of CENVAT Credit Rules, 2004 - rejection of refund on ‘Erection’, ‘Telephone‘ and ‘outward transportation’ service - period October 2009 to June 2010 - HELD THAT:- The impugned period i.e. October 2009 to June 2010 is prior to the changes brought in by Notification No. 3/2011 dated 1.3.2011, to the definition of ‘Input service' under Rule 2 (l) of the Cenvat Credit Rules, 2004 with effect from 01/04/2011. Prior to the said date the definition of “input services” had a wide ambit as it included the phrase “activities relating to business”. Thus, almost all the services were covered within the definition of “input services” if used for providing the output services. 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.
The impugned order is set aside and the appeals are allowed.
-
2024 (7) TMI 1394
Refund claim - clearances made to SEZ units - physical exports or not - refund claim filed beyond time limit of one year prescribed under Section 11B of Central Exercise Act, 1944 - Appeal against confirmation of the recovery of the amount - Confirmation of demand of interest.
Appeal against confirmation of the recovery of the amount - HELD THAT:- It is brought out from facts that the appellant has already repaid the amount. The Commissioner (Appeals) in the impugned order has given the liberty to the appellant to avail recredit. The Ld. Counsel has brought to our notice that the appellant has repaid the amount and then availed recredit on 23.03.2014. In such circumstances, appeals have become infructuous. These appeals are dismissed as infructuous.
Confirmation of demand of interest - HELD THAT:- The credit availed by the appellant is eligible. Rule 5 provides for an assessee to get refund of the unutilized cenvat credit in case of exports. This is a beneficial provision to facilitate exports. By filing the claim belatedly, the appellant has lost the benefit of refund. The department has not adduced any evidence to establish that there is suppression of facts on the part of the appellant. There are no ingredients for invoking the extended period for demand of interest. The demand of interest is time barred and requires to be set aside.
Appeals disposed off.
-
2024 (7) TMI 1393
Recovery of Central Excise Duty alongwith interest and penalty - determination of assessable value of goods sold or cleared to the related party - section 4(1)(b) of the Central Excise Act read with rules 8,9,10 & 11 of the Central Excise Valuation Rules 2000 - HELD THAT:- It is not in dispute that the facts pertaining to the present appeal and to the aforesaid decided appeal in M/s Khyati Ispat Private Limited (Rolling Mill Division) vs. Principal Commissioner, Central Tax & Central Excise [2022 (3) TMI 399 - CESTAT, NEW DELHI] in the matter of the appellant are identical. Infact, the period involved in the appeal decided by the Tribunal is from April, 2010 to March, 2014, while the period involved in the present appeal is from April, 2014 to March, 2015. The decision of the Tribunal which has been relied upon by the Commissioner (Appeals) would, therefore, govern the issues raised in this appeal.
It cannot be doubted that the dispute in the present appeal is identical to the dispute raised in the appeal decided by the Tribunal.
In view of the decision of the Tribunal in the matter of the appellant itself, the present appeal filed by the department deserves to be dismissed and is dismissed.
-
2024 (7) TMI 1357
Classification of goods - Agro Shed Net manufactured by the petitioner - to be classified as ‘fabric’ or as plastic - main grievance raised by the petitioner is that the respondent-authority has ignored the decision of this Court rendered in case of MESSERS CTM TECHNICAL TEXTILES LTD VERSUS UNION OF INDIA [2020 (12) TMI 1100 - GUJARAT HIGH COURT] and issued the impugned show-cause notice.
HELD THAT:- The petitioner can raise all the contentions which are raised in this petition in reply to the impugned show-cause notice which can be adjudicated by the respondent-authority. The petition is a premature petition and there are no doubt about the capacity of the respondent-authority to adjudicate the show-cause notice after considering the contentions which may be raised by the petitioner including the decision of this Court in case of CTM Textiles Technical Ltd vs Union of India.
Without entering into the merits of the matter, the petition is disposed of with a liberty to the petitioner to file reply to the impugned show-cause notice.
-
2024 (7) TMI 1356
Constitutional Validity of Rule 8(3A) of the Central Excise Rules, 2002 - compliance with the provisions of Rule 8(1) read with Rule 8(3) of the Central Excise Rules, 2002 - stay granted in the case of Indsur Global Ltd. [2014 (12) TMI 585 - GUJARAT HIGH COURT] by the Hon’ble Supreme Court is binding upon the Learned Tribunal or not? - HELD THAT:- It cannot be disputed that the decision in the case of Indsur Global was challenged before the Hon’ble Supreme Court in [2014 (11) TMI 1101 - SC ORDER] and by order dated 24th September, 2015 the Hon’ble Supreme Court has stayed the judgment of the High Court of Gujarat. The decision of this Court in Goyal MG Gases [2017 (8) TMI 1515 - CALCUTTA HIGH COURT] appears to have been rendered taking note of the decision of the High Court of Gujarat in the case of Indsur Global.
When similar appeal came up before this Court on earlier occasion, the Court has set aside the order of the learned Tribunal and remanded the matter back to the Tribunal to be kept pending before the Tribunal to be taken up for decision after the judgment is rendered by the Hon’ble Supreme Court.
The order passed by the learned Tribunal is set aside and the appeal is restored to the file of the learned Tribunal and the matter shall be kept pending and taken up after the judgment of the Hon’ble Supreme Court in Special Leave to Appeal No.16523/2015 and other connected matters.
Appeal retsored.
............
|
9911796707
