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Central Excise - Case Laws
Showing 541 to 560 of 81323 Records
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2024 (7) TMI 545
Valuation - determination of assessable value - whether pool lifting charges collected by the appellants from the dealers is includable in the assessable value of Motor Vehicles cleared by the appellants? - HELD THAT:- The reasoning given by the appellants, stating that the pool lifting charges do not add any value to the marketability of the vehicles sold, is not acceptable.
Tribunal in the case of Victory Electricals Ltd [2013 (12) TMI 81 - CESTAT CHENNAI] held that on the aforesaid analysis, the reference is answered by holding that whatever the assessee, as per the terms of the contract and on account of delay in delivery of manufactured goods is liable to pay a lesser amount than the generically agreed price as a result of a clause (in the agreement), stipulating variation in the price, on account of liability to “liquidated damages”, irrespective of whether the clause is titled “penalty” or “liquidated damages”, the resultant price would be the “transaction Value‟, and such value shall be liable to levy of excise duty, at the applicable rate.
Extended period of limitation - penalty - HELD THAT:- It is found that various show cause notices have been issued to the appellants over the years based on very same financial records. In case, the department missed out on certain issues during the earlier scrutiny, the blame cannot be put on the appellants and extended period cannot be invoked in the instant case. Moreover, it is amused to find that the Ld. Commissioner hold that “Mens rea” is not required in transaction matters for imposition of penalty. This is against the settled principle of law as envisaged in a catena of judgments. Therefore, the Department has not made out any case for either invoking extended period or for imposition of penalty.
Both the appeals are partly allowed restricting the demand to normal period and setting aside the penalty. However, the appellants are required to pay interest, as applicable, on the duty confirmed for the normal period.
Appeal allowed in part.
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2024 (7) TMI 544
Process amouting to manufacture or not - appellants import the filters and affix the labels and supply to various manufacturers of earth moving equipment etc. - HELD THAT:- The amendment carried out w.e.f. 29.04.2010 makes it abundantly clear that a legislature did not intend to tax the parts, components and assemblies of earthmoving equipment etc. under the Head “Automobiles”; therefore, to this extent, the demand for the period prior to 29.04.2010 cannot be sustained.
The demand for the period prior to 29.04.2010 is not sustainable - The demand for the period from 29.04.2010 is sustainable and it is reported that the appellants have paid duty from the said date. The penalties imposed on the appellant and their Director (Finance) are also not sustainable.
Appeal disposed off.
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2024 (7) TMI 543
Refund of accumulated Cenvat credit which was the balance lying in its Cenvat Credit account under the head Education Cess and SHE Cess as on 30-06-2017 - time limitation.
Whether Appellant is eligible for refund of Rs.47,98,760/-, which was the balance lying in its Cenvat Credit account under the head Education Cess and SHE Cess as on 30-06-2017? - HELD THAT:- The issue relating to refund of accumulated Cenvat credit of Education Cess and SHE Cess lying unutilized on 30-06-2017 has come up for consideration before this Tribunal in a series of cases. The issue is no more res integra. In the case of NU Vista Ltd. Vs. CCE [2022 (3) TMI 1254 - CESTAT NEW DELHI], the Division Bench of this Tribunal has held that accumulated Cenvat credit on account of Education Cess and SHE Cess is a vested right and its refund is admissible.
The aforesaid issue had also come up for consideration in the case of Bharat Heavy Electricals Ltd. Vs. Comm., CGST Bhopal [2019 (4) TMI 1896 - CESTAT NEW DELHI], the Division Bench of the Tribunal held that Appellants were eligible for claimed refund.
Refund allowed.
Whether the claimed refund was barred by limitation? - HELD THAT:- Similar issue had come up for consideration before this Tribunal in the case of Jai Mateshwaari Steels (Pvt.) Ltd. Vs. Commissioner, CGST Dehradun [2022 (3) TMI 49 - CESTAT NEW DELHI], it was held that limitation of 1 year provided under Section 11B is not applicable to the cases of refund under Section 142(3) of CGST Act, 2017 - the limitation prescribed under Section 11B is not applicable due to overriding effect of the CGST Act, 2017.
The impugned order is set aside - Appeal allowed.
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2024 (7) TMI 542
Levy of Excise Duty - excisable goods or not - Copper anode moulds - captive consumption - marketibility - Levy of Excise duty twice - Cost of Copper Anode Mould having been subsumed in the cost of Copper Anode - Demand of differential duty in respect of the copper anodes cleared during the period July, 2001 to March, 2002 - interest - Penalty u/r 25 of the Central Excise Rules, 2002.
Levy of Excise Duty - excisable goods or not - Copper anode moulds - captive consumption - marketibility - HELD THAT:- Revenue would have to gather evidence on the question of marketability of the moulds and then issue a fresh SCN, which would altogether be a new proceeding, with implications of time limits on the demand for duty etc adversely affecting Revenue. Hence though the Appellant would not estopped from contesting the excisability of the goods in question, they have to raise it as a fresh issue with the department and cannot ride on the back of the SCN already issued. The cause of the department also deserves fair and equal treatment at our hands. In the larger interest of the administration of justice, we feel that the raising of the mixed question of fact and law at this late stage cannot be permitted. The averments of the appellant on this issue is rejected.
Levy of Excise duty twice - Cost of Copper Anode Mould having been subsumed in the cost of Copper Anode - HELD THAT:- Considering that the duty paid on inputs causes a cascading effect on the final price of the goods, government had introduced the MODVAT scheme to be later replaced by the CENVAT credit schemes so as to permit set-off of central excise duties paid by manufacturers on the inputs including capital goods purchased by them against the central excise duty payable on the final excisable goods manufactured and cleared by them. The benefit of credit under the schemes were in the nature of a concession given which could be availed only in the manner and in the circumstances mentioned in the respective rules.
The Supreme Court has upheld double taxation wherever the legislative intent is clear. In the case of Premier Tyres Ltd. vs. CCE, Cochin [1987 (2) TMI 66 - SUPREME COURT], relating to Central Excise input tax credit, the Supreme Court held that the language of the notification is so clear that it permits a situation where input credit is not allowed, leading to double taxation.
In the case of Hind Plastics v. C.C. Bombay [1994 (4) TMI 73 - SUPREME COURT] the Supreme Court held that taxing of packing material twice, (once at the rate applicable to the contents and then the rate applicable to the container) which would be the result if the levy on duty to the packing material were not to be exempted would mean double taxation and therefore harsh. But the Court held that even if it is harsh, it is legal.
Demand of differential duty in respect of the copper anodes cleared during the period July, 2001 to March, 2002 - HELD THAT:- It is found that Tribunal vide its’ Final Order dated 04.02.2016 had at para 8, determined the assessable value of copper anodes for the period July, 2001 to March, 2002 at Rs. 94,446 MT. It is found from para 2.2 of the OIO dated 30/03/2009 that the composition of copper anode and copper anode mould are one and the same. As per para 14, the appellant have also themselves submitted a combined CAS-4 value in respect of Copper Anode and mould for the period from 01/07/2001 to 31/03/2002, thereby indicating that the value of copper anode and copper anode mould are one and the same. The appellant is agreed upon that the value of copper anode mould for the same period can be accepted as the value per MT of the copper anode mould.
Penalty u/r 25 of the Central Excise Rules, 2002 - HELD THAT:- The issue pertains to a case where the appellant was clearing the impugned goods on payment of duty. The dispute was relating to the valuation of the goods. The OIO has not been able to establish that the dispute involved intent of the appellant to evade payment of duty. The OIO at para 21 only records that the appellant neither opted for provisional assessment nor adopted the appropriate value hence a penalty was imposable. The Ld. Adjudicating Authority went on to state that he took a lenient view while imposing a penalty due to the complexity involved at arriving at the value. In the circumstances the imposition of penalty needs to be set aside.
Interest - HELD THAT:- The Hon’ble Supreme Court in Commissioner Of Central Excise, Pune Vs M/s SKF India Ltd [2009 (7) TMI 6 - SUPREME COURT] held that interest was payable even in a case of short payment of duty which was indeed completely unintended and without any element of deceit etc. Hence interest is leviable on delayed or deferred payment of duty for whatever reasons. The liability gets extinguished only when the statutory payments are made as required by the statute - penalty imposed under Rule 25 of the Central Excise Rules, 2002 is set aside.
Appeal allowed.
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2024 (7) TMI 541
Refund of CENVAT credit in cash on the amount of CVD and SAD paid under the existing law under the provisions of section 142(3) of the CGST Act - HELD THAT:- Shakti Pumps is entitled to cash refund of CENVAT credit on the amount of CVD and SAD paid even after 01.07.2017. The Commissioner (Appeals), therefore, committed no illegality in granting this relief to Shakti Pumps.
In GRANULES INDIA LTD VERSUS COMMISSIONER OF CENTRAL TAX HYDERABAD [2024 (2) TMI 1375 - CESTAT HYDERABAD], the Division Bench after placing reliance upon the Larger Bench decision of the Tribunal in M/S. BOSCH ELECTRICAL DRIVE INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL TAX, CHENNAI [2023 (12) TMI 1145 - CESTAT CHENNAI-LB] held 'Section 142(3) read with 142(5) of the GST act, provides that every claim for refund by any person before, on or after the appointed day, for refund of any amount of Cenvat credit/duty/tax/interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of the existing law and any amount eventually accruing to him, shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provision of sub-section (2) of section 11B of the Central Excise Act (unjust enrichment).'
The present appeal that has been filed by the department to assail the order passed by the Commissioner (Appeals) would, therefore, have to be dismissed and is dismissed.
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2024 (7) TMI 476
Method of Valuation - Section 4 or Section 4A of the Central Excise Act, 1944 - denial of exemption under Rule 34(b) on the ground that the poly pack contains a quantity of more than 10 gms of chewing tobacco - whether the packages made by the respondent-assessee are such that under the said Rules, there is a requirement to declare the retail price of the goods on the packages? - HELD THAT:- The Commissioner held that an HDPE bag containing 100 poly packs does not contain a declaration of selling price and therefore, it would be a wholesale package. There is no finding recorded that what is distributed or sold by the respondent is a poly pack containing 33 plus one small pack. The respondent’s case that 100 poly pack packages are being put in one HDPE bag has been accepted by the Commissioner. Therefore, the respondent is selling HDPE bags containing 100 poly packs each to the distributors and dealers. The said Rules do not require the display of price on such HDPE bags. Even assuming that 100 poly packs were retail packages, HDPE bags would be covered by the definition of ‘wholesale package’ as defined in clause (iii) of Rule 2(x) of the said Rules. Thus, the HDPE bags are not group packages within the meaning of Rule 2(g).
The impugned judgment is not satisfactorily worded, the ultimate conclusion recorded in the impugned judgment that Section 4A(1) of the Excise Act was not applicable to the goods subject matter of the show cause notices, cannot be faulted with - there is no reason to interfere with the impugned judgment - Appeal dismissed.
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2024 (7) TMI 475
Method of valuation - Section 4 or 4A of the Central Excise Act, 1944 - removal of factory packaged medicines covered by the Standards of Weights and Measures Act (SWM Act) on stock transfer basis to Patna depot - demand of differential duty on the basis of transaction value in terms of Section 4 of the Central Excise Act from the appellant - HELD THAT:- It is observed that MRP based valuation is applicable only for goods cleared for domestic sales, where the SWM Act is applicable. When goods are sold outside the country, such as Nepal, MRP based valuation is not applicable and the value to be adopted is the transaction value as provided under Section 4 of the Act.
This view has been expressed by the Tribunal, New Delhi in the case of GILLETTE INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR [2005 (8) TMI 222 - CESTAT, NEW DELHI] wherein it was observed that export consignments to Nepal were required to be valued in terms of their transaction value under Section 4 and not in terms of Section 4A, even if the goods under export were specified under Section 4A(1) of the Act.
It is observed that the appellant has fairly accepted the valuation in terms of Section 4 of the Act for the goods cleared to Nepal from their depot at Patna and paid the differential duty before filing this appeal. Therefore, by relying on the decision of the Tribunal in the case of Gillette India Ltd. v. Commissioner of Central Excise, Jaipur, the demand of differential duty confirmed in the impugned order upheld along with interest.
Penalty u/s 11AC of the Central Excise Act, 1944 - HELD THAT:- When the Department contended that MRP based valuation is not applicable for the goods cleared to Nepal, the appellant accepted their liability and paid the differential amount of duty. Even though it was paid after issuance of the adjudication order, we observe that in this case, there is no mens rea or intention to evade payment of duty existing on the part of the appellant. As suppression of facts with intent to evade payment of duty is not established in this case, it is held that the penalty imposed under Section 11AC of the Central Excise Act, 1944 is not sustainable and accordingly, the same is set aside.
Appeal disposed off.
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2024 (7) TMI 474
Dutiability - black sand produced during the manufacturing process of castings - manufactured goods or not - HELD THAT:- It is not the case of the revenue that the object of the Appellant was to manufacture black sand; even if the appellant intended to manufacture black sand, that too using natural sand which by itself is a non- dutiable goods. When the Natural Sand turns out black during the manufacture of castings, it does not lose its character; may be the natural sand turns out ‘black’ and other than this, there are no material differences brought out on record.
The authorities have clearly erred in fastening the appellant with duty liability on Black sand which was not manufactured - the impugned order set aside - appeal allowed.
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2024 (7) TMI 473
CENVAT Credit - Furnace Oil used for manufacture of job worked goods - interpretation of Rule 2(K) and Rule 6 of the CENVAT Credit Rules, 2004 - HELD THAT:- The furnace oil used by the Appellant for heating the MS Ingots / Billets for the manufacture of rolled products on his own account satisfies the definition of the term ‘input’ but the furnace oil used in the manufacture of finished goods on behalf of the principal manufacturer does not satisfy the definition of inputs, as the rolled products manufactured on job work basis are the final products of the principal manufacturer and not the final products of the Appellant.
The above issue is no more res integra as in the appellant’s own case, the issue was decided in favor of the appellant for the earlier periods by the Tribunal in DECCAN ALLOYS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CHENNAI-III [2018 (9) TMI 1058 - CESTAT CHENNAI] where it was held that 'No duty has been discharged by appellants. The adjudicating authority has found merit with the arguments of appellants that Notification No.214/86-CE is not an exemption Notification but it is merely postponing payment of duty at the time and removal of finished goods by principal manufacturer. However having come to this conclusion, the adjudicating authority has held that there is yet another condition that input should be used by manufacturer of final products, and has held that since appellants are not manufacturer of final products, the credit availed on furnace oil used by them for job work basis cannot be allowed since the same are not used for final products of the appellants.'
The impugned order is set aside - appeal allowed.
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2024 (7) TMI 472
Reversal of CENVAT Credit - inputs and input services which were used in the manufacture of main excisable goods, sugar and molasses produced by the Appellant - relevant time - HELD THAT:- The issue is no more res integra and is squarely covered by the decision of the Tribunal in the case of M/S TRIVENI ENGINEERING & INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & S.T., LUCKNOW [2017 (11) TMI 599 - CESTAT ALLAHABAD]. It is found that Hon’ble Supreme Court in the case of UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT] that Bagasse being only an agricultural waste and not being a result of any process, not covered in definition of manufacture under Section 2(f) of the Act and there being no Chapter note or Section note in the Central Excise Tariff declaration process in respect of Bagasse as amounting to manufacture. Thus, notwithstanding the amendment in 2008 in Section 2(d), creating a fiction of deemed marketability, Bagasse is not excisable, as it does not pass through the test of manufacture. Accordingly, whatever amount the Appellant-assessee have paid by way of reversal is in the nature of revenue deposit and there is no limitation attracted for refund of such revenue deposit.
Bagasse is not a dutiable item and not a manufactured item, as held by the Hon’ble Supreme Court, there was no question of any reversal of duty under the provision of Rule 6(3) of CCR, 2004. Under such facts and circumstances, the amount reversed by the Appellant under Rule 6(3) of CCR was in the nature of revenue deposit.
The impugned order is set aside - appeal allowed.
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2024 (7) TMI 471
CENVAT Credit - input service or not - Product Liability Insurance - place of removal - case of revenue is that the Product Liability Insurance is a service not used in or in relation to the manufacture of the final product and clearance up to the place of removal.
HELD THAT:- It is seen from the definition of ‘input service’ as per Rule 2(l) of the CCR 2004 that the term ‘upto the place of removal’ is specific to ‘outward transportation’ and is not related to other services mentioned in the definition. Service like accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services etc are activities that are related to the pre and post manufacturing and clearance of the goods. They do not have any restriction for availment with regard to the place of removal or else the definition of ‘input service’ would be rendered redundant in as far as these services are concerned.
In fact as per explanation (BA) to rule 2(l), service of general insurance business, servicing, repair and maintenance, in so far as they relate to a motor vehicle alone is not included. Since the impugned services are neither for personal consumption of staff nor are general insurance which relates to a motor vehicle, input credit cannot be denied and the impugned order merits to be set aside.
The impugned order is set aside and the appeal succeeds - Decided in favor of appellant.
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2024 (7) TMI 470
Interpretation of statute - input service’ - nexus of service with the manufacturing activity either directly or indirectly and as specified under the definition of Rule 2(l) of the CENVAT Credit Rules, 2004 - HELD THAT:- The definition covered ‘activities relating to business’ but we do not see anywhere as to the revenue agitating that the other services which were disputed, were never used in the ‘business’ of the appellant. Further, para 20 of the impugned order makes it very clear that the denial is made on the ground that the setting up of business was not an activity related to the business.
It is difficult to understand the logic behind this conclusion. It is not their case that the appellant having undertaken the activity of setting up of the factory did not carry any manufacturing activity in that premises and therefore, the denial of input credit was called for. It is the settled position of law that the ambit of the definition prior to 01.04.2011 was large enough to cover all such activities that are disputed here, in this case, as long as there is no denial by the revenue that after setting up of the factory, no business was carried on from that premises.
The denial of input credit is contrary to law and therefore, the impugned order cannot sustain - Appeal allowed.
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2024 (7) TMI 469
CENVAT Credit - Goods Transport Agency (GTA) service used for transportation of finished goods - whether such Cenvat credit is recoverable treating it as wrongly availed credit, along with interest and penalty under Rule 15(1) of CCR, 2004? - HELD THAT:- The transportation charges which are to be added in value have to be up to the stage of the transfer of the ownership of goods inasmuch as once the ownership in goods stands transferred to the buyer, any expenditure incurred thereafter has to be on buyer’s account and cannot be a component which would be included while ascertaining the valuation of the goods manufactured by the buyer. Thus, the principle of law, is in determining at what point of time sale is effected namely whether it is on factory gate or at a later point of time i.e. when the delivery of the goods is effected to the buyer at his premises, which can be seen in the light of provisions of the Sale of Goods Act, 1930 by applying the same to the facts of each case to determine as to when the ownership in the goods is transferred from the seller to the buyer.
Plain reading of the above legal provisions under Section 4 of the Central Excise Act, 1944 state that for the purpose of valuation of excisable goods, for determining the levy of central excise duty if chargeable on ad valorem basis, it shall be the transaction value. Where the goods are sold by the assessee, for delivery at the time and place of removal, and where the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale, then the same shall be the transaction value. Thus, it is clear that the value shall be determined with reference to goods delivered at the time and at the place of removal.
The Purchase Order placed by the customer-BAL with the appellant specifically provide for delivery as follows:- “Delivery Term: FREE DELIVERY AT OUR WORKS”. Further, the payment terms for the sale of goods is 45 days from the date of goods being received at the customer’s factory works. Thus, it is found that the sale of goods in the present case takes place when the goods are delivered by the appellant and the factory works of the customer-BAL. It is also found that the impugned order did not discuss the facts of the case to arrive at a decision on ‘place of removal’ and further assumed that the customer’s premises to be the place of removal, without any basis and without examination of the facts of the case. Thus, the impugned order cannot be sustained in law.
There are no substance in the impugned order dated 29.09.2020, in denying the Cenvat credit on input services without proper examination - the appellant is eligible for the credit of service tax paid on outward freight charges, where the sale is on FOR basis or delivery at works on FOR, in terms of Rule 2(l) of the Cenvat Credit Rules, 2004 read with Section 4 of the Central Excise Act, 1944 - the impugned order is set aside by allowing the appeal filed by the appellant - appeal allowed.
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2024 (7) TMI 468
Levy of penalty on appellant, a Proprietary firm - involvement in illegality by not receiving goods and receiving invoices only with an intension to avail CENVAT credit and clearing goods without payment of duty - main appellant has settled the dues under the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules 2019 - HELD THAT:- The Appellant had not supplied goods as per invoices on the presumption that there was shortage of raw material in the factory of the Consignee M/s KEPL. But the discrepancy in the stock of goods in the factory of M/s KEPL cannot lead to any adverse inference against the Appellant since it can be due to many reasons and not attributable only to the Appellant, amongst all the suppliers. M/s KEPL has made payments by Cheques for the goods supplied under 18 invoices.
Moreover Respondent has not disputed the contents of RG 23D Register maintained by the Dealer and the quarterly CENVAT returns submitted to the respondent as required under the Sub-Rule (8) of Rule 9 of the CENVAT Credit Rules, 2004 showing the details of availing of credit on purchase of goods and passing of credit on sale of goods.
Considering the above facts and the fact that the main appellant has settled the dues under the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules 2019 which allows waiver of interest and penalty to the co-notice if the duty is discharged by the main notice, there are no merit to sustain the penalty against the appellant who is a co-notice.
Appeal is allowed by setting aside the penalty imposed on the appellant.
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2024 (7) TMI 467
Recovery of CENVAT Credit with interest and penalty - import of Propane and Butane and utilisation of the same on clearance of LPG from the warehousing premises (MLIF) - HELD THAT:- It is found that merely on the ground that the appellants are not possessing manufacturer registration at the time of receipt of the goods in their premises would not disentitle them in availing CENVAT credit in view of the judgment of the Hon’ble Karnataka High Court in the case of MPORTAL INDIA WIRELESS SOLUTIONS (P.) LTD. VERSUS COMMISSIONER OF SERVICE TAX [2011 (9) TMI 450 - KARNATAKA HIGH COURT], the Hon’ble High Court had observed 'In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained.'
Thus, the appellants are entitled to avail CENVAT credit on the inputs viz., Propane and Butane which were later utilised in the clearance of LPG from their MLIF. Besides, in view of the ratio laid down by the Hon’ble Bombay High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS AJINKYA ENTERPRISES [2012 (7) TMI 141 - BOMBAY HIGH COURT] which was followed by the Karnataka High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE BANGALORE-V VERSUS M/S. VISHAL PRECISION STEEL TUBES AND STRIPS PVT. LTD. [2017 (3) TMI 1287 - KARNATAKA HIGH COURT] once the department accepts the duty on the final product, denial of the credit on the inputs cannot be sustained.
The impugned order is set aside - Appeal allowed.
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2024 (7) TMI 422
Captive consumption - denial of benefit of N/N. 67/95-E dated 16.03.1995 - IC engines which are captively consumed in the manufacture of PD Pumps - HELD THAT:- The learned Principal commissioner has decided the matters solely relying upon the judgments of M/s. Honda Seil Power Products Ltd [2015 (11) TMI 322 - ALLAHABAD HIGH COURT] delivered by the Hon’ble High Court of Allahabad. From the said judgment it is observed that if the PD Pumps and IC Engines are not assembled and kept together in one packing and cleared that activity does not amount to manufacture. However, in the present case it is the claim of the appellant that in majority of cases the IC Engine has been fitted with the PD Pumps and the PD Pump set was cleared duly assembled with IC Engine. Therefore, the fact of the case of M/s. Honda Siel Power Products Ltd judgment is different from that of the present case.
It is also observed that as regard the Monoblock Pumps there is no dispute that the IC Engine was used in the manufacture of Monoblock Pumps. Therefore, the interpretation and contention applied in the case of PD Pump will not apply in the case of Monoblock Pump. Therefore, there is an error in the order to this effect.
The impugned order suffers from various infirmity, accordingly the matter needs to be reconsidered on all the issues - Appeal disposed off by way of remand.
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2024 (7) TMI 381
Refund claim - amount deposited in PLA is duty or not - time limitation - Section 11B of Central Excise Act, 1944 - HELD THAT:- Hon’ble Apex court in the case of Modipon Ltd. [2017 (11) TMI 1429 - SUPREME COURT] has not held that any amount lying pending in PLA is a central excise duty. In fact, the Hon’ble Apex Court itself has held that same is a deposit which can be utilized later on for payment of Central Excise Duty. As the learned Commissioner (Appeals) has misinterpreted the decision of the Hon’ble Apex Court in the Modipon Ltd, therefore the said decision is not applicable to the facts of this case.
The provisions of Section 11B are not applicable for deposit lying in PLA account for refund and same is to be treated as deposit.
The impugned order set aside - refund allowed - appeal allowed.
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2024 (7) TMI 380
CENVAT Credit - Receipt of unaccounted inputs without documents for compensating the inputs covered under CENVAT invoices purchased from ship breakers based in Alang and Sosiya - Availment of CENVAT Credit without actual receipt of inputs.
HELD THAT:- In the present case by not allowing the cross examination of witnesses in terms of Section 9(D), the said statements cannot be relied upon while adjudicating the case. In the present case except various statements, there is no other documentary evidence to establish that the appellant have not received the inputs and not used in the manufacture of the final product. As per the documentary evidence available with the appellant, it is clear that they have received inputs covered under the duty paying invoices, they have recorded the same in their books of accounts - Though, investigating agency presumes that against such payment the appellant have returned the money to ship breaking unit but to support this allegation, there is not a single evidence to show that the appellant has returned the money in cash to the supplier as this allegation is not substantiated by the investigation.
It is found that under a common investigation relying on the same evidences and statements under the common alleged modus operandi show cause notices were issued to various other firms whose cases are on the same pedestal as the same present appellants.
It is found that under a common investigation relying on the same evidences and statements under the common alleged modus operandi show cause notices were issued to various other firms whose cases are on the same pedestal as the same present appellants. In one of the case of C.C.E & S.T. – Silvasa vs. Vishal Casteels [2024 (1) TMI 881 - CESTAT AHMEDABAD] this Tribunal has dismissed the Revenue’s appeal, upholding the adjudication order whereby, in an identical case demand was set aside.
It can be seen that in the present case as well as the case above a common investigation was conducted and same evidences were relied upon such as statements of brokers, transporters and ship breakers. Therefore, the ratio of the above decision is directly applicable in the facts of the present case. Considering the finding of the above decision and also the facts and circumstances of the present case, the Revenue could not establish the case of non-receipt of inputs beyond doubt. Therefore, the demand of Cenvat Credit is not sustained.
The impugned order is not sustainable, hence, we set aside the same - Appeal allowed.
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2024 (7) TMI 379
Undervaluation of goods - FOS and Sucralose when cleared to their related parties as well as to M/s Surya Herbals by not following CAS-4 valuation method as provided under Rule 8 of Central Excise Valuation (Determination of Price of Excisable goods) Rules, 2000 - HELD THAT:- The Larger Bench of the Tribunal in the case of ISPAT INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., RAIGAD [2007 (2) TMI 5 - CESTAT, MUMBAI-LB] considered the issue of application of Rule 4 vis-a-vis Rule 8 and held that Rule 8 would apply only in case where it’s entire production of a particular commodity is captively consumed - the Larger Bench has held that the provisions of Rule 8 will not apply in a case where some parts of the production are sold to independent buyers. So also in a situation where both Rule 4 and Rule 8 would apply, by sequential order, Rule 4 would take precedence over Rule, 8 for determination to the consistent with Section 4 (8) Central Excise Act, 1944.
It also requires to be stated that though it is alleged by department that appellant has undervalued the good by not adopting Rule 8, there is no evidence in the nature of cost comparison or details of comparable market price put towards to show that the goods have been undervalued. After appreciating the facts, and following the decisions above we hold that the demand of duty cannot sustain and requires to be set aside.
The impugned order is set aside - The appeal is allowed.
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2024 (7) TMI 378
Refund claims in respect of Cenvat Credit on spare parts considering the same as capital goods - Input versus Capital Goods - Refund rejected under the provisions of Section 11B and 12B of the Cenvat Excise Act, 1944 - HELD THAT:- As per the insertion of sub clause (v) in the definition of “Inputs” given in Rule 2(k) of Cenvat Credit Rules, all capital goods having a value upto Rs.10,000/- are included in the definition of “Inputs”. However, there is no exclusion of these goods from the definition of “Capital Goods”. The spare parts of the capital goods are also covered under the capital goods. Therefore, it is the option of the assessee either to claim Cenvat Credit in respect of capital goods having a value upto Rs.10,000/- per piece either as capital goods or inputs.
It is settled law that when simultaneously two benefits are available to the assessee at a time then the more beneficial provisions should be extended to the assessee. In this regard, support of the Hon’ble Supreme Court judgment in the case of SHARE MEDICAL CARE VERSUS UNION OF INDIA [2007 (2) TMI 2 - SUPREME COURT] taken, in the said judgment the appellant”s claim of Notification No. 64/88-Cus., dated March 1, 1988 was denied. However, during the relevant period the goods of the assessee was also covered under para 3 of the table of exemption. The Hon’ble APEX Court held that if the benefit of para 2 of exemption is not available then assessee should be given the benefit under para 3. Accordingly, when two benefits are available it is the option to the assessee to chose the more beneficial.
In the present case, appellant have claimed the Cenvat Credit in respect of such spare parts under capital goods which is in order. In the present case the appellant has option to avoid the Cenvat Credit on spare parts either under capital goods or under input. When this be so then condition of the notification No.30/2004-CE does not get violated. Accordingly, the appellants are entitled for the exemption notification No 30/2004-CE and simultaneously, they are also entitled for the Cenvat Credit on the spare parts even though, the value thereof is upto Rs.10,000/- under the category of capital goods - the appellants are legally entitled for the Cenvat Credit. As regard the submission of the appellant that in the event of eligibility of the Cenvat Credit on the parts of the capital goods in the present case they are entitled for the cash refund in terms of Section 142(3) of CGST Act read with Section 11B.
The impugned order is set aside - appeal allowed.
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