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Central Excise - Case Laws
Showing 521 to 540 of 81323 Records
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2024 (7) TMI 925
CENVAT Credit - clearance of cement coated pipes under exemption N/N. 6/2006-CE dated 01.03.2006 directly from the job worker’s premises - Department is of the view that activity undertaken by the job worker that of cement coating on the steel pipes amounts to manufacture as per clause (5) of the Chapter note 73 of Central Excise Tariff Act, 1985 hence the job worker is not liable to charge and pay any service tax on such activity - manufacture of dutiable and exempted goods - Failure to separate accounts - HELD THAT:- It is matter of record that since the appellant have availed credit of common input services which have been used both in the manufacture of dutiable and exempted goods and have not maintained separate accounts with respect to dutiable and exempted goods as required under Rule 6(2) of the Cenvat Credit Rules, 2004 they have paid an amount equal to 6% of the value of exempted goods cleared by them, as provided under Rule 6(3)(i) of Cenvat Credit Rules, 2004. With regard to the question whether the appellant is entitled to avail Cenvat credit of the service tax paid by the job worker for the activity which amounts to manufacture and thus falls beyond the scope of definition given for Business Auxiliary Service.
It is found that the matter has already been decided by the Hon’ble Gujarat High Court in the case of COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD-III VERSUS NAHAR GRANITIES LTD. [2014 (5) TMI 57 - GUJARAT HIGH COURT] - In view of the above judgment, it can be seen that on both the counts i.e. on the issue of availment of exemption Notification No. 44/2001-CE (NT) dated 26.06.2001 by the supplier and also where even if the duty is not payable by the supplier but the same was paid, Cenvat credit cannot be denied at the recipient end. Consequently, the personal penalty on Shri Omdev R. Mishra is also not imposable. Accordingly, the impugned orders are set-aside and the appeals are allowed.”
It is held that it is matter of record that M/s. Welspun Corp. Limited were reversing 6% of the value of goods which were cleared without payment of duty as per the requirement of Rule 6(3)(i) of Cenvat Credit Rules, 2004. At the same time, in their reply to show cause notice, it has categorically been mentioned by the respondent assessee that they have also been clearing the cement coated pipes on payment of Central Excise duty. In view of above, the grounds taken by the department for filing this appeal are devoid of merits. The appeal filed by the department is not maintainable on merits and therefore, the same is set aside.
Appeal allowed.
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2024 (7) TMI 924
Determination of transaction/ assessable value of excisable goods - whether the advertisement cost incurred by the dealer/ distributor is includible in the assessable value of the excisable goods manufactured and sold by the appellant to or through such dealer/ distributors? - HELD THAT:- For the period prior to new Section 4 and Valuations Rules, 2000 there are judgments of the Hon’ble Supreme Court that the advertisement cost incurred by the dealer/ distributor will not be included in the assessable value of excisable goods. However, the Revenue’s contention is that post 1.7.2000 as per the amended Section 4 and Valuation Rules made their under such advertisement cost incurred by the dealer/distributor shall be included in the assessable value as clarified by the board in circular No. 643/34/2002-CX dated 01.07.2002.
Reliance placed in the HENKEL ADHESIVES TECHNOLOGIES INDIA P. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-III [2017 (12) TMI 163 - CESTAT MUMBAI] where it was held that 'From these advertisements, it is clear that the advertisements are mainly to the effect that a particular dealer deals in the product of the appellant. Thus, these advertisements cannot be called as advertisements for the manufactured goods but are advertisements of the dealer. Undoubtedly, such advertisement indirectly helps the appellant and it is for this reason that they are reimbursing 50% of the expenses.'
In view of the above judgment, it can be seen that even for the period post 2000 the courts have taken a view that advertisement cost incurred by the dealer/ distributor shall not be included in the transaction/ assessable value of excisable goods manufactured and cleared by the appellant.
The impugned order is not sustainable - the impugned order is set aside - appeal allowed.
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2024 (7) TMI 923
Classification of goods - White Petroleum Jelly variants - to be classified as petroleum jelly under CTH 2712 or cosmetics, under CTH 3304? - whether the products in question are drug or Cosmetic and the addition of ingredient would result in any change in their classification?
HELD THAT:- It is relevant to refer to both to Chapter Headings; Chapter 27 of CETA refers to “Mineral Fuels, Mineral Oils and Products of their distillation; Bituminous Substances; Mineral Waxes.” Entry at 2712 gives the description of goods as “Petroleum jelly, paraffin wax, microcrystalline petroleum wax, ozokerite, etc. obtained by synthesis or by other processes, whether or not coloured”. This gives an indication to be covering petroleum jelly per se, in pure form, obtained by synthesis or by other processes, without any additives. Interestingly, Heading 27.12 of HSN at (A) has provided for specific exclusion, as noted earlier, for petroleum jelly suitable for use for the care of skin, which is also indicated to be covered under heading 33.04.
The products in question viz, petroleum jelly – Baby and petroleum jelly – Aloe Vera are those meant exclusively for the care of skin, petroleum jelly meant for skin care specifically excluded from CTH 2712 and therefore, they are cosmetics which are correctly classifiable under CTH 3304. Hence, the appellant should succeed.
The impugned order upholding wrong classification cannot sustain for which reason, the same is set aside - appeal allowed.
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2024 (7) TMI 922
Provisional assessment under Rule 7 of the Central Excise Rules, 2002 - inability to determine the grade of their coal - HELD THAT:- It is agreed that at the time of clearance of coal from the respondent’s premises, the grade of coal was not known and the same is to be done at the end of DVC as per the joint venture agreement and after arriving at the grading of the coal by DVC, M/s Coal India Limited has fixed the price and on that price, the duty is payable by the respondent - Admittedly, at the time of clearance of coal from the premises by the respondent, the value of coal is not known. In that circumstances, the respondent is entitled to claim the provisional assessment in terms of Rule 7 of the Central Excise Rules, 2002, which has been allowed by the ld.Commissioner (Appeals) in the impugned order.
There should be no interference in the impugned order and the same is upheld - appeal filed by the Revenue is dismissed.
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2024 (7) TMI 864
Contest to present petition - no challenge to judgment and order dated 3 February 2022 passed by the High Court of Gujarat - HELD THAT:- The respondent no. 2 are directed to pay a sum of Rs. 1,00,000/- as cost and this amount shall be paid before the next date to the High Court Legal Aid Fund, Account No. 60045304283, IFSC-MAHB0000002, of Bank of Maharashtra, Branch- Fort, Mumbai 400 032, maintained by the High Court Legal Services Committee, Mumbai. Room No. 105, 1st Floor, PWD Building, High Court, Mumbai and to furnish the details of such cost to the High Court Legal Services Committee, Mumbai and obtain the receipt thereof physically or through Email, i.e., [email protected] which shall be the proof of such payment/deposit.
Petition disposed off.
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2024 (7) TMI 863
Extended period of limitation - exemption under Entry No. 144 of N/N. 12/2012-CE dated 17.03.2012 as amended by N/N. 12/2016-CE dated 01.03.2016 - Manufacture of Ready Mix Concrete - addition of words of "knowledge of the department" "previous audit" etc. so as to discard the substantial authority with the department for invoking extended period for issuing demand notice in terms of Section 11A (1) of the Central Excise Act, 1944 - HELD THAT:- On perusal of the finding of the Tribunal in relation to the Notification No. 12/2016-CE dated 1.3.2016, it only considers the applicability of such Notification; as to whether the exemption claimed by the respondent – assessee on the RMC used at the construction site was liable for Nil rate of duty or not. In the facts of the case, the breach of any condition of the exemption Notification was not under consideration before the Tribunal.
By the N/N. 12/2016-CE dated 1.3.2016, Explanation is inserted as to what the ‘site’ means and the Tribunal has merely held that in the facts of the case, the interpretation which was canvassed on behalf of the appellant – revenue that the entire goods manufactured at the site which are required to be used for the construction site only, is not provided in the Notification. Meaning thereby that the Tribunal has considered the applicability of the Notification to the exemption of excise duty on RMC used by the respondent – assessee on the site is considered. The Tribunal has also held that the respondent – assessee has paid the excise duty on the RMC which is cleared outside the construction site and sold to other third party.
The Appeal is required to be filed before the Hon’ble Supreme Court. The Registry to hand over the papers of this Appeal to the appellant as per Order VII Rule 10 of the Code of Civil Procedure, 1908 to be filed before the appropriate Court.
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2024 (7) TMI 814
Rejection of appeal of the department by not appreciating the provision of Rule 8(3A) of the Central Excise Rule, 2002 - requirement to hear the appeal on merits - Section 130 of the Customs Act, 1962 - HELD THAT:- 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 [2014 (12) TMI 585 - GUJARAT HIGH COURT]. 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 - substantial questions of law which have been raised are left open.
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2024 (7) TMI 686
Classification of goods - LIV 52 Protec - goods misclassified as Animal Feed Supplement under Central Excise Tariff Heading 230990/23099010 of Central Excise Tariff Act, 1985 - it was held by CESTAT that 'the ‘Liv 52 Protec Liquid’ in bulk is exported under the Chapter Heading 30039011.'
HELD THAT:- It is not required to interfere in the matter - The civil appeal stands dismissed.
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2024 (7) TMI 685
Classification of goods - Suncros UVA Lotion/Gel/Hyclean Cream - to be classified as medicaments under Chapter Sub-Heading No. 3004 of the First Schedule to the Central Excise Tariff Act, 1985 or whether the same is classifiable as cosmetics under Chapter Sub-Heading No. 3304 of the First Schedule to the Central Excise Tariff Act, 1985? - invocation of extended period of limitation.
Classification of goods - HELD THAT:- The appellant have produced ample evidences such as the ingredients used in the manufacture of the product namely UVA Lotion/Gel/Hyclean Cream, the package of the product and label states that product is to be sold by retail on the prescription of registered medical practitioner only. In such case the product can be administered by licensed cosmetologist, dermatologist or a qualified healthcare professional. It also states that the product is to provide comprehensive protection against UV rays that can cause skin damage, sun burn and skin cancer. As per the above facts the product prima facie classifiable under 3004 as medicaments - as per the nature of the product since the same being highly technical, a non technical person cannot be expected to arrive at conclusion about the classification of a product contains various drugs and chemicals. The adjudicating authority was suppose to either get the product tested or at least obtain an expert opinion from authorized and recognized independent pharma/chemical authority before deciding the classification. Therefore the observation of the learned Commissioner in the impugned order is based on incomplete/ premature material which needs to be reconsidered. Therefore on merit the matter should be remanded to the adjudicating authority.
Extended period of limitation - HELD THAT:- There is absolutely no intention of the appellant to evade the payment of duty. Having said so we find that the objection was raised during EA-2000 Audit of the appellant’s record, the appellant have been filing the ER1 return regularly wherein they have declared their product and also claimed the exemption notification under the classification 3004. In this position there are nothing which suggests that there is suppression of fact on the part of the appellant with intent to evade the payment of excise duty. Therefore the demand for the extended period is not sustainable on the ground of limitation. Therefore, the demand for the extended period is set aside without going into merit of the case in such demand. However the merit needs to be reconsidered by the adjudicating authority for normal period.
The impugned order set aside - the demand for the extended period is set aside and for the demand under normal period, the matter is remanded to the adjudicating authority.
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2024 (7) TMI 684
Refund claim - International Competitive Bidding (ICB) as per Sl. No. 336 of Notification No.12/2012-CE dated 17.03.2012 - denial of exemption only on the ground that at the time of clearance of goods, the Appellants have not fulfilled the condition under clause (b) of condition No.93 of Customs Notification No.12/2012-Cus dated 17.03.2012, which provided that in the case of imports by a Central Public Sector undertaking, the quantity, total value, description and specifications of the imported goods are certified by the Chairman and Managing Director of the said Central Public Sector Undertaking - principles of unjust enrichment.
HELD THAT:- When the condition was amended on 01.03.2015, it was not practically possible for the appellant to obtain a required certificate within the same month. Therefore, the appellant has chosen to clear the goods on payment of duty, subsequently, admittedly the appellant have obtained certificate. Thereafter all the conditions of Notification No. 12/12-CE dated 17.03.2012 and Notification No. 12/2012-Cus dated 17.03.2012 and conditions thereof stands complied with. In this position, merely because the certificate required for availing the exemption notification was not available at the time of clearance of the goods, the exemption could not have been denied.
Piece of paper i.e. certificate is only a procedural requirement but the nature of supply is predominant for granting the exemption which was never been in dispute, after obtaining certificate the procedural requirement also stands fulfilled. It is a settled law by the Hon’ble Apex Court in the various judgments that benefit of Notification can be claimed at any stage if otherwise the same is eligible to the assessee. Therefore even though at the time of clearance of the goods the appellant have paid the duty but after obtaining the certificate, all the conditions prescribed under notification stand complied with - In some of the judgments, it is categorically held that merely because at the time of clearance of goods certificate was not available, however the same was submitted later on the substantial benefit of exemption cannot be denied. Therefore, the issue is no longer res-integra.
Principles of unjust enrichment - HELD THAT:- The adjudicating authority has categorically dropped the proceeding under Section 11B(2) holding that there is no unjust enrichment in this case. This observation was also endorsed by the Learned Commissioner (Appeals) in the impugned order.
The appellant is eligible for exemption notification and consequential refund of the duty paid at the time of clearance of goods. Therefore, the impugned order is set aside - Appeal allowed.
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2024 (7) TMI 683
Disallowance of Input Tax Credit - appellant has not established that these services have been used directly or indirectly or in relation to the manufacturing of final products - HELD THAT:- When there is no dispute raised by the jurisdictional authorities against the input service distribution centres for availing the credit and distributing the same, the department cannot deny the credit at the end of the manufacturing unit on very vague allegations. The show cause notice does not make any specific allegation with respect to particular input service.
In the appellant's own case for a different period the very same issue of disallowing credit at the manufacturing unit distributed by the Cost Centres and has been considered by the Tribunal in BHARAT HEAVY ELECTRICALS LTD VERSUS COMMISSIONER OF CENTRAL TAX (APPEALS-II) CGST & CENTRAL EXCISE, CHENNAI [2018 (12) TMI 438 - CESTAT CHENNAI] - Almost all the services listed in the above table was held to be eligible for credit by the Tribunal, by the Commissioner (Appeals) and by the adjudicating authority as pointed out by the Ld. Counsel. The appellant has given the details of the case law in respect of each input service in the last column of the table.
Outdoor catering services - HELD THAT:- It is seen that the services have been availed prior to 01.04.2011. So, also in the case of works contract services/ civil work these are availed for repair and maintenance as well as modernization and not of setting up of a factory. There is no allegation by the department that such civil works were availed for setting up of a factory.
All the services are eligible input services. The credit cannot be denied on such vague allegations at the end of the manufacturing unit without disputing the credit availed by the input service distributor.
The impugned order cannot sustain and is set aside - appeal allowed.
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2024 (7) TMI 682
Refund claim of duty paid under protest - whether the ground raised in the appeal that since M/s. BHEL had imported the goods by paying the duty under protest and so would have availed credit of the said duty and therefore the respondent is not eligible for refund is sustainable or not? - Rule 6(6)(vii) of CENVAT Credit Rules, 2004 - Principles of unjust enrichment.
HELD THAT:- The bar under sub-rule (1) of Rule 6 not to avail credit of goods which are exempted from payment of duty is not applicable to inputs meant for use in the manufacture of finished products cleared to Mega Power Projects in terms of Notification No. 6/2006-CE. Further, in the present case, the respondent has filed the refund claim as an ultimate consumer and therefore whether the supplier M/s. BHEL has availed credit or not is of no relevance. The Department if aggrieved of wrongful availment of credit has to initiate proceedings against M/s. BHEL. The refund of the duty paid by the ultimate consumer cannot be denied alleging that the supplier has availed credit. When the duties are exempted for supplies made to Mega Power Project, the same cannot be frustrated by imposing conditions which are beyond the control of the respondent.
In the present case, the power project has been constituted by 5 units each of the capacity of 270MW. There is no ground to differ with the view taken by Adjudicating Authority and the Commissioner (Appeals).
Unjust enrichment - HELD THAT:- It is seen that both M/s. BHEL as well as EPIL have filed disclaimer certificates before the Department that the incidence of duty has been borne by respondent. Therefore there is no issue of unjust enrichment also - the Adjudicating Authority as well as the Commissioner (Appeals) have correctly analysed the refund claim and sanctioned the same. The appeal filed by the Department seems to be of misconception of facts and law.
The appeal filed by the Department is dismissed.
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2024 (7) TMI 681
Violation of Rule 8(3A) of the Central Excise Rules, 2002 - default in payment of quarterly duty liability - HELD THAT:- This Bench in the case of CHERAN CEMENTS LTD. AND OTHERS VERSUS CCE TRICHY AND CCE COIMBATORE [2015 (8) TMI 99 - CESTAT CHENNAI] has held that 'demand of duty under Rule 8(3A) is unsustainable as the said Rule has been struck down by the Hon'ble High Court and the demand of duty and penalty imposed in the impugned orders is liable to be set aside.'
There are no merit in the demands confirmed in the impugned orders and hence, the impugned order to this extent cannot sustain - appeal of Revenue dismissed.
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2024 (7) TMI 680
CENVAT Credit - outward transportation of goods - place of removal - appellant has availed credit from 2010-2011 upto 2014 in January 2015 - Time limitation.
CENVAT Credit - outward transportation of goods - place of removal - appellant has availed credit from 2010-2011 upto 2014 in January 2015 - HELD THAT:- Rule 4 (7) of CCR 2004 was introduced only w.e.f. 1.9.2014. The time limit for availing the credit was introduced for the first time only from 1.9.2014. The appellant has availed accumulated credit upto December 2014 in January 2015 on invoices issued prior to 1.9.2014. The appellant has availed the credit within 6 months from the date of introduction of time limit in terms of Rule 4 (7) of CCR 2004. The said rule cannot be applied retrospectively. However, this issue is to be reconsidered by the original authority.
Credit eligible on outward transportation of goods upto buyer's premises - HELD THAT:- The said issue has been considered by the Larger Bench of the Tribunal in M/S. THE RAMCO CEMENTS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, PUDUCHERRY [2023 (12) TMI 1332 - CESTAT CHENNAI-LB]. The Larger Bench has held that in each case the place of removal has to be ascertained on the basis of documents and if the place of removal is the buyer's premises, the assessee would be eligible for credit. It is also held that the place of removal has to be ascertained by applying the judgment of the Hon'ble Supreme Court in the case of COMMISSIONER CENTRAL EXCISE, MUMBAI-III VERSUS M/S. EMCO LTD. [2015 (8) TMI 200 - SUPREME COURT] and in the case of COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. [2015 (4) TMI 857 - SUPREME COURT]) as well as the decision of Hon'ble High Court of Karnataka in the case of BHARAT FRITZ WERNER LTD. AND MAPAL INDIA PRIVATE LIMITED VERSUS THE COMMISSIONER OF CENTRAL TAX, BANGALORE [2022 (7) TMI 352 - KARNATAKA HIGH COURT]. The circular issued by the Board dt. 08.06.2018 also clarifies as to the ascertainment of place of removal - if the appellant has included the freight charges in the price of the finished products cleared by them, they would be eligible for credit of the service tax paid on outward transportation of finished products.
Time limitation - HELD THAT:- The issue being interpretational in nature, the appellant has a strong case on limitation. However, as the appeal is remanded to the adjudicating authority to decide the issue on merits, the issue of limitation also has to be considered afresh by the adjudicating authority.
The appeal is allowed by way of remand.
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2024 (7) TMI 679
Refund of duty paid - central excise levy was withdrawn retrospectively vide Notification No. 23/2012 dated 08.05.2012 on articles of jewellry - appellant has not established that the duty is not passed on to another - principles of unjust enrichment - HELD THAT:- The refund sanctioning authority had called for a report from the Range Officer to verify and report as to whether the incidence of duty has been passed on to the customers by the appellant. The Range Officer vide his report O.C.No. 107/2013 dated 22.02.2013 has reported that the incidence of duty has not been passed on to the customers. It is also seen stated that he has verified the documents - the appellant has mentioned 1% excise duty on the value of the goods. However, on the invoices issued from the depot to the customers, the appellant has not mentioned any excise duty. The actual sale takes place from the depot to the customer. From the factory to the depot, it is merely a stock transfer from one unit of the appellant to the other. As per the Range Officer’s report as well as the invoices furnished before us, we are able to conclude that the appellant has borne the burden of duty and has not passed the incidence of duty to the customers.
The appellant has not collected any amount as duty from the customer. The Ld. Counsel for the appellant has explained difference in the value of the clearances is because of the fluctuation in the price of gold. This is a case of refund of excise duty and not an issue of valuation. The only aspect to be looked into is whether the incidence of duty is passed on to another.
It is found that the view taken by the Adjudicating Authority as well as the Commissioner (Appeals) that the incidence of duty has been passed on to the customer and that refund is hit by bar of unjust enrichment is erroneous and requires to be set aside. The appellant is eligible for refund.
The impugned order to the extent of crediting the amount to the Consumer Welfare Fund is set aside. The amount sanctioned is to be refunded to the appellant - Appeal allowed.
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2024 (7) TMI 678
Method of Valuation - Section 4 or Section 4A of the Central Excise Act, 1944 - toilet soaps - Applicability of MRP on goods sold to Canteen Stores Department (CSD) under Ministry of Defence - HELD THAT:- CSD comes under the category of institutional consumer and hence covered by Rule 2A of Standards Weights & Measures (Packaged commodities), Rules, 1977 - the value of the goods has to be determined under Section 4 of Central Excise Act, 1944.
Appeal allowed.
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2024 (7) TMI 616
Benefit of N/N. 8/2003-CE dated 01.03.2003 denied - appellant opted for availing cenvat credit on inputs and cleared the final products on payment of duty for the month of April 2006 - time limitation - suppression of facts or not - HELD THAT:- As per clauses 2(i) and (ii) of the above Notification, the appellant had an option either to avail exemption of duty or not to avail the exemption Notification; and pay duty on the final products and accordingly, will be eligible for the benefit of CENVAT credit on the inputs used in the manufacture of the final products. Such an option cannot be withdrawn during the remaining part of the financial year. Therefore, having paid duty in the month of April 2006 by availing CENVAT credit, the question of availing the benefit of exemption for the remaining part of the year did not arise.
The appellant in order to exhaust the credit available with them paid duty by utilizing the credit for the month of April 2006 and thereafter, having surrendered the licence cannot go back to manufacture and avail the benefit of ‘Nil’ rate of duty for the remaining months of the same financial year. Therefore, the benefit of the Notification No.8/2003-C.E. dated 01.03.2003 cannot be extended to the appellant for the remaining period of the financial year i.e. May 2006 to March 2007.
Time Limitation - HELD THAT:- In the instant case, all the material facts were before the authorities before issuance of the first notice but they choose to issue for only one of the paras and the second notice was issued on the same audit note which was available to them at the time of the first notice and therefore as rightly observed by the Hon’ble High Court of the Madras in the case of M/S. ANGLO FRENCH TEXTILES VERSUS THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, THE COMMISSIONER OF CENTRAL EXCISE [2018 (8) TMI 1396 - MADRAS HIGH COURT] and various other decisions relied upon by the appellant, there are no merit in the second show-cause notice invoking suppression in as much as the notice was issued based on the common audit note and all the relevant facts were available before the authorities concerned at the time of issuance of first show-cause notice. Second show-cause notice dated 22.09.2009 issued after the adjudication of the first show-cause notice as claimed by the appellant is clearly time barred and devoid of any merit.
The impugned order is set aside - appeal allowed.
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2024 (7) TMI 548
Refusal to de-seal cigarette manufacturing machines and DG sets - validity of the declaration of trade notice dated 18.01.2021 - arbitrary and violation of Article 14 of the Constitution of India or not - it was held by High Court that 'The impugned action of the respondents is wholly without jurisdiction for which the petitioner is liable to be compensated, hence instead of assessing losses caused in this writ petition, it is left to the petitioner to take recourse available under the law against the respondents.'
HELD THAT:- No case for interference is made out in exercise of jurisdiction under Article 136 of the Constitution of India - The Special Leave Petitions are accordingly dismissed.
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2024 (7) TMI 547
Imposition of penalty and interest - failure to deposit service tax on reverse charge mechanism when no man power has been supplied to the petitioner as because the petitioner engaged contractors for executing job works who hired labours.
Demand of service tax - HELD THAT:- It is not in dispute that the said service tax has already been paid by the assessee. From the order passed by the learned Tribunal, it is found that the Tribunal has re-appreciated the facts, more particularly, Annexure-B to the Chartered Accountant’s certificate and found that there are two parts of the labour charges which have been paid – one, pertaining to labour charges paid to the contractors and, the second pertaining to labour charges paid to the locally hired workers by the company and, thereafter considered the findings recorded by the adjudicating authority and affirmed the same - there can be substantial question of law arising on the said issue and the appeal challenging the demand of Rs.25,16,900/- towards service tax is affirmed.
Imposition of penalty - HELD THAT:- It is settled legal principle that mere use of the expression “fraud” and “willful mis-statement” etc. will not automatically attract the penal provision as the adjudicating authority is bound to bring the facts on record, especially ‘fraud’ or ‘willful mis-statement’. Bearing this principle in mind, it is found in the facts of the present case that except using the word ‘willful mis-statement’, nothing has been brought on record to show as to how and under what manner the statement made by the assessee was willful and with an intent to evade payment of tax. On facts, it is seen that the assessee was not under the service tax net, because their activities remained exempted under the service tax regime so far as forward charge mechanism was in vogue. Reverse charge mechanism became operative only from July 1, 2012 in so far as supply of manpower service is concerned - it cannot be held that the assessee had made a willful mis-statement so as to invoke Section 78 to impose penalty on the assessee.
Ais partly allowed and the penalty imposed on the assessee is set aside - the substantial question of law is answered in favour of the assessee.
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2024 (7) TMI 546
Refund of duty paid at enhanced rate - refund on account of claim of liquidated damages by the Railways.
Refund claim - refund on account of increase in the rate of duty of the goods manufactured by them to the Railways - HELD THAT:- It is observed that the agreement entered into by the appellant with the Railways has a denial clause for enhancement of rate of duty. Therefore, the Railways have not paid the differential duty on account of the enhancement. The appellant is therefore liable to pay duty at the enhanced rate and if the Railways refuse to pay the enhanced duty, then the duty at the enhanced rate has to be borne by the appellant. In this case, the appellant has rightly paid the duty at the enhanced rate and claimed it as refund from the Department since the Railways have not paid the enhanced rate of duty to them - the Ld. Appellate Authority has rightly rejected the refund claim of the appellant on this count since the appellant has rightly paid duty at the enhanced rate - the rejection of the refund claim by the Ld. Appellate Authority in the impugned order on this count is proper and sustainable.
Refund on account of claim of liquidated damages by the Railways - Railways have imposed a penalty of Rs.1,36,23,253/- on the appellant on account of delay in supply of sleepers - HELD THAT:- The Department is no way connected with the delay in supply of the goods by the manufacturer and if there is any penalty imposed on account of such delay, it is to be borne by the appellant themselves. The appellant cannot consider that the penalty would effectively reduce the assessable value and that they are liable to pay only lesser duty to the extent of Rs.10,93,900/- on account of the deduction of liquidated damages from them by the Railways. Thus, the Ld. Appellate Authority has rightly rejected the refund of Rs.10,93,900/- claimed by the appellant on this count.
Thus, the refunds of Rs.35,12,486/- and Rs.10,93,900/- claimed by the appellant have been rightly rejected by the Ld. Appellate Authority in the impugned order - there are no infirmity in the impugned order - appeal dismissed.
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9911796707
