|
Advanced Search Options
Central Excise - Case Laws
Showing 561 to 580 of 81329 Records
-
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.
-
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.
-
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.
-
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.
-
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.
-
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.
-
2024 (7) TMI 377
Denial of CENVAT Credit - denial on the basis that address of the appellant is not mentioned in the document against which they have taken the Cenvat credit - HELD THAT:- As the only allegation against three of these invoices that address of the appellant is not mentioned correctly which has been rectified and certified by the supplier, therefore, it is held that on these three invoices appellant is entitled to take Cenvat credit and they have taken Cenvat credit correctly.
Denial of Cenvat credit on Bills of Entry, out of three Bills of Entry, two Bills of Entry has been rectified by the customs authorities themselves and correct address has been mentioned. The same has been verified and seen that the same has been rectified by the customs authorities. Therefore, on these two Bills of Entry which has been rectified by the customs authorities, the appellant is entitled to take Cenvat credit.
With regard to last Bill of Entry No. 683232 dated 29.01.2014, the name of the Head Office is mentioned. It is a case of the appellant that Head Office has not taken Cenvat credit. The said fact is required to verify by the adjudicating authority. If Head Office has not taken the Cenvat credit on the said Bill of Entry, than the appellant is entitled to take Cenvat credit.
The appellant is entitled to take Cenvat credit on invoices in the show cause notice dated 28.01.2019 - the matter back to the adjudicating authority - no penalty is imposable on the appellant - appeal disposed off by way of remand.
-
2024 (7) TMI 376
Recovery of CENVAT Credit - capital goods - reversals under Rule 3(5), (5A) & (5B) of CENVAT Credit Rules, 2004 prior to amendment carried out by Notification No. 03/2012-CE(NT) dated 01.03.2013 - revenue neutrality - extended period of limitation.
HELD THAT:- The present appeal can be disposed of only on the issue of time bar without going into merit of the case. The period involved in the present case is 2009-10 and the show cause notice was issued on 24.06.2013. The fact is not undisputed that the appellant have cleared the capital goods as such on payment of excise duty at the rate prevailing at the time of removal. The said transaction was reflected in their ER-1 return. Therefore, the only dispute was the amount of Cenvat credit to be paid by the appellant which was very much known to the department when the appellant cleared it on the invoice and reflected in ER-1 return. It is also fact on record that this issue was raised by the Audit party in 2010 despite that the show cause notice was not issued within the normal period.
It is also noted that whatever short paid duty as per the department was available as a Cenvat credit to their own recipient unit of capital goods. Therefore, the present case is also involved revenue neutrality. This also shows that there is no mala fide intention on the part of the appellant for short payment of duty on removal of capital goods.
There is no suppression of fact or mis-declaration with intent to evade payment of duty on the part of the appellant. Therefore, demand is clearly hit by limitation, as the entire period involved is under extended period of limitation.
The demand is set aside on the ground of time bar itself without going into the merit of the case - the impugned order is set aside - appeal allowed.
-
2024 (7) TMI 306
Rejection of rebate claim u/r 18 of the Central Excise Rules, 2002 read with relevant Notifications issued thereunder - rejection on the ground that the petitioner had wrongly availed Cenvat Credit on “Stainless Steel Casting” and “Non-Alloyed Steel” under the Cenvat Credit Rules, 2004 and therefore, the petitioner was not entitled to utilize the Cenvat Credit wrongly availed for discharging duty liability on the exported goods to claim rebate under Rule 18 of the Central Excise Rules, 2002 read with relevant Notifications.
HELD THAT:- The issue relating to Cenvat Credit availed by the petitioner on “Stainless Steel Casting” and “Non-Alloyed Steel” stands confirmed in favour of the petitioner in view of the orders passed by the Division Bench of this Court in W.A.(MD) No.339 of 2014 on 30.04.2014 [2014 (4) TMI 1093 - MADRAS HIGH COURT] and in W.A.(MD) No.1151 of 2014 on 17.11.2022 [2022 (11) TMI 860 - MADRAS HIGH COURT]. Thus, the rebate of Cenvat Credit utilized on exports made by the petitioner cannot be denied as the Cenvat Credit that was availed by the petitioner is deemed to be validly availed and utilized for discharging excise duty lability on the exports covered by various rebate claims.
These Writ Petitions deserve to be allowed. Thus, the impugned orders of the first respondent seeking to deny rebate claims of the petitioner are quashed - the rejection of rebate claims cannot be sustained.
-
2024 (7) TMI 305
Appropriation of the rebate claim towards tax liability of the petitioner - Section 11B of the Central Excise Act, 1944 r/w Rule 18 of the Central Excise Rules, 2002 - HELD THAT:- As far as the Order in Original is concerned, the Tribunal had set aside the order passed by the Appellate Commissioner. Pursuant to the aforesaid order in E/734/2010, the petitioner opted to settle the dispute under the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019.
The petitioner has discharged the liability under the aforesaid Scheme and therefore, the petitioner seeks direction to refund the amount of Rs. 5,26,662/- appropriated towards part of the liability confirmed vide Order in Original No. 1669 of 2009 dated 11.11.2009 - As far as the appropriation of amount of Rs. 51,972/- towards tax liability of Rs. 1,63,778/- vide Order in Original No.8 of 2011-ST is concerned, the petitioner had preferred an appeal before the Appellate Commissioner vide Order in Appeal No.152 of 2010 dated 26.08.2010.
Thus, the Tribunal had remanded the case back to the Original Authority and that the petitioner has settled the dispute under the SVLDRS Scheme, 2019 and discharge certificate in Form-4 has also been issued to the petitioner by the Designated Authority on 29.01.2021. Thus, the liability of the petitioner has been either dropped or squared up under the SVLDRS Scheme. Therefore, the appropriation made pursuant to the aforesaid order is liable to be set aside.
The respondents are directed to refund the amount that was sanctioned by the Rebate Sanctioning Authority together with applicable interest under Section 11(b) of the Central Excise Act, 1944 to the petitioner - petition allowed.
-
2024 (7) TMI 304
Clandestine removal - Oxygen - HELD THAT:- Tribunal has given the finding that 'Without prima-facie, establishing the fact that there has been a clandestine removal (if not with an arithmetical precision), such an allegation, will not survive. It is seen that not even a statement of the person, who managed the production/consumption of oxygen or the person who has maintained the statistical report, has been recorded by the Revenue. Without such bare a minimum enquiry, the charge of clandestine removal, cannot be sustained.'
The findings recorded by the Tribunal are findings of fact based on consideration of relevant documentary and other evidences on record. Therefore, no substantial question of law is involved - Appeal dismissed.
-
2024 (7) TMI 303
Grant of interest from the date of deposit till the date of allowance of refund alongwith appropriate interest on the amount deposited during investigation - HELD THAT:- The issue is no longer res integra and it has been held by Division Bench of this Tribunal in M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, NOIDA (VICE-VERSA) [2021 (5) TMI 870 - CESTAT ALLAHABAD], wherein this Tribunal have held that interest on refund of amount deposited during investigation or deposited during pendency of appeal is allowable under Section 35EE of the Act and has to be paid from the date of deposit till the date of refund.
The Appellant is entitled to interest on the refundable amount of Rs.50,00,000/- from the date of deposit (03.06.2006) till the date of refund being 02.01.2020, @ 12% per annum - Appeal allowed.
-
2024 (7) TMI 302
Valuation - physician samples (P or P Medicaments) clearing to the distributor - to be assessed under Section 4 (1) (a) or 4 (1) (b) of Central Excise Act 1944 - period from July 2010 to December 2010 - HELD THAT:- The issue stands covered as per the decision of the Tribunal in the appellant’s own case M/S. FOURRTS (INDIA) LABORATORIES P. LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2023 (9) TMI 56 - CESTAT CHENNAI] where it was held that 'the case would be covered by the provisions of Section 4(1)(a) of the Act and in view thereof Rule 6(b)(ii) of the Rules would not apply.'
The demand cannot sustain. The impugned orders are set aside. The appeals are allowed.
-
2024 (7) TMI 301
CENVAT Credit - denial to avail credit of the import duties as the original documents (Bills of Entry) were lost - HELD THAT:- Rule 9 of CENVAT Credit Rules 2004 provides for the documents on which credit can be availed. The Proviso to sub-rule (2) of Rule 9 states that if the document does not contain full particulars, the Deputy Commissioner or Assistant Commissioner may cause verification and if satisfied, allow the credit.
In the present case, there is no dispute that goods have been imported and received at the factory of the appellant. So also there is no dispute that the duty has been paid. The photocopies of the Bills of Entry are supported by certificate issued by Inspector of Police for loss of original as well as certificate issued by customs authorities for payment of duty. It is not a case of availment of credit on mere photocopies.
It is held that disallowing the credit alleging that original documents have not been produced is too harsh on the assessee and would result in denying substantive benefit of credit. The appellant is eligible for credit.
The impugned order is set aside - appeal allowed.
-
2024 (7) TMI 300
100% EOU - relevant date for computing interest on deposit of amounts made against an audit objection - from the date of payment under protest or as per provisions of Section 11BB, whereby the relevant date would be 3 months from the date of filing the refund application - appropriate rate of interest for a delayed refund - jurisdiction - Tribunal is competent to decide the effective rate of interest other than that notified under sec. 11BB, for a delayed refund under the Act or not.
What is the relevant date for computing interest as per the facts of this case? - HELD THAT:- This is a case where the duty has becomes refundable as a consequence of the judgment of an Appellate Authority. Explanation B to Clause (5) of Section 11B of the Act defines ‘Relevant Date’. Sub-clause (ec) thereof clarifies that where the duty becomes refundable as a consequence of a judgement decree order or direction of appellate authority Appellate Tribunal or any Court, the date of such judgement decree, order or direction shall be the relevant date. Explanation to section 11BB also states that where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal or any Court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal or, as the case may be, by the Court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section. Hence the relevant date for calculating the interest rate in terms of section 11BB would be three months from the date immediately after the expiry of three months from 23.08.2018, the date of the order of the Commissioner (Appeals).
What is the appropriate rate of interest for a delayed refund, of an advance payment made towards an audit objection? - HELD THAT:- It has been categorically held by the Hon’ble Supreme Court in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] and discussed elaborately above, that notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any court or in any other provision of this Act or the rules made thereunder or in any law for the time being in force, no refund shall be made except as provided in Section 11B of CEA 1944. The Hon’ble Court went on to repeat that so long as Section 11B is constitutionally valid, it has to be followed and given effect to.
The appellant would only be eligible for interest at the effective rate as per the notification issued under section 11BB of Central Excise Act, 1944 and not at any higher rate.
Competence of the Tribunal to fix a higher rate of interest than prescribed under Section 11BB of the Central Excise Act, 1944 - Having come to a conclusion on both the issues raised by the appellant within the framework of sec. 11B and 11BB of the CEA 1944, it is not felt necessary to attempt an answer to the this question.
The appellant is eligible for consequential relief - appeal disposed off.
-
2024 (7) TMI 299
Reversal of CENVAT Credit - common credits on inputs and input services availed on taxable as well as exempt goods - Rule 6(3A)(a) of the CCR - HELD THAT:- It is a fact on record that the appellant is neither taking CENVAT credit attributable to exempted goods or have reversed proportionate standard credit attributable to exempted goods. The said fact has been examined during the course of audit. Moreover, the appellant has periodically intimated to the Department to that effect.
The impugned proceedings are not sustainable against the appellant. In view of this, there are no merit in the impugned orders which have been passed in gross violation of judicial pronouncements. Therefore, as appellant has not taken CENVAT Credit of input services which have been used for manufacturing of the final exempted goods, therefore, appellant are not required to pay an amount equivalent to 5/6/7% of the value of exempted goods.
As no demand is sustainable against the appellant, no penalty can be imposed on the appellant.
The impugned order set aside - appeal allowed.
-
2024 (7) TMI 267
Issuance of SCN in view of the specific provision of Section 11A(2B) of the Central Excise Act, 1944 as it existed at the relevant point of time - HELD THAT:- In the order-in-original itself that the adjudicating authority has mentioned that the entire amount of duty of Rs.4,13,18,733/- and interest of Rs.68,24,912/- was deposited by the respondent/assessee vide challan No.00326 dated 06.05.2012. The remaining amount of interest of Rs.10,542/- was also paid by the assessee vide challan No.00115 dated 19.07.2013. The demand-cum-show cause notice was issued by the adjudicating authority on 14.08.2012 i.e. much subsequent to the deposit of the amount of duty along with interest.
There is no factual dispute that the entire amount of duty along with interest was deposited by the assessee much prior to the issuance of notice. It is also admitted fact that information about the aforesaid deposit of the amount of duty and interest was given by the assessee to the Central Excise Officer concerned - the provisions of sub-Section (2B) of Section 11A of the Central Excise Act, 1944 is fully attracted on facts of the present case which specifically provides the circumstance in which the Central Excise Officer shall not serve any notice under sub-Section (1) of Section 11A of the Act, 1944 in respect of the duties paid. Section 11A(2B) is fully attracted on facts of the present case.
There are no irregularity in the findings recorded by the Tribunal in paragraph 6 of the impugned order - appeal dismissed at admission stage.
-
2024 (7) TMI 266
Activity amounting to manufacture - Section 2(f) of the Central Excise Act, 1944 - Eligibility to avail Cenvat Credit on duty paid input machineries - HELD THAT:- Tribunal has noted the facts that It is an undisputed fact that the appellant procured duty paid machineries, parts and accessories of ‘Continuous Automatic Coil to Coil Colour Coating Line’ and ‘Briqueting Hydraulic Press’ and carried out the processing jobs thereon as set out in the impugned order, which included “assembly” to produce the aforesaid final products which were exported upon payment of duty under claim of rebate. It is also seen from the records that the input machines, parts and accessories were goods classifiable as excisable goods by themselves under tariff items different from the tariff items under which the exported final products were classified - the activities undertaken by the appellant amounted to ‘manufacture of excisable goods within the meaning of Section 2(f) of the Central Excise Act, 1944 - it was also held that the appellant is eligible to avail Cenvat Credit of the duty paid on the said input machineries, parts, etc. under the Cenvat Credit Rules and there is no infirmity on the part of the appellant in availment of Cenvat credit in the instant case.
The findings recorded by the tribunal are findings of fact based on consideration of relevant evidences on record - no substantial question of law arises from the impugned order of the Tribunal - Appeal dismissed.
-
2024 (7) TMI 265
Captive exemption - Fatty Acid Pitch (FAP) - Benefit of N/N. 67/95-CE dt.16.03.1995 - FAP emerging as an intermediate product but otherwise excisable in the factory of the Appellants - manufacturing both dutiable goods as well as non-dutiable goods - Rule 6(3A) of Cenvat Credit Rules - extended period of limitation.
HELD THAT:- The Adjudicating Authority has made certain conclusions based on the purported observations made by the Audit team as regards the factual position of presence of boilers and there having no clear cut demarcation for its use in the manufacture of dutiable and exempted products. The SCN, is referring to some observations of Audit team without referring to any Audit memo or report based on any factual verification done by the Audit team or subsequently by the Department and is merely relying upon two letters from the Appellants themselves. The Adjudicating Authority has presumed that the Appellants have not been able to bring any evidence to the effect as to from where they were getting steam for the manufacture of exempted goods and because of that, it was “reasonably postulated” by him that FAP was used as fuel in one of the boilers, which in turn produces steam and which in turn was used in the manufacture of certain exempted final goods.
Despite the Appellants making repeated claims about the FAP not being used for any exempted goods and furnishing all the relevant details to the Department, no further enquiry or investigations were carried out to crosscheck as to whether Appellant’s assertions were correct or otherwise. In fact, they have gone a step further by invoking the extended period also, even though there is no evidence on record to establish that the FAP has been used for manufacture of exempted product and that it was done deliberately and intentionally to evade payment of duty. In fact, the Appellants themselves have informed the Department about their intended use way back in 2007 itself and till the issue of SCN in 2012 no verification was carried out to prove to the contrary by the Department.
There is no cogent verifiable evidence on the record to suggest that FAP was used in the manufacture of exempted products also and therefore, liable to duty by denying the benefit of N/N. 67/95-CE. - In the absence of any categorical evidence from the Department to the effect that steam generated by FAP through the boiler was used in the manufacture of any of the exempted products, the conclusions drawn by the Adjudicating Authority in the impugned order is not legally tenable. Merely because they could not adduce evidence as to where they got steam for exempted product, it cannot lead to conclusion that FAP was used in boiler and steam so generated was used for manufacture of such products. In the absence of any detailed inquiry/investigation rebutting the factual assertions of the Appellant, Department could not have relied inherently on letters sent by Appellant themselves and some vague observations of Audit team, Report of which has not been even relied upon in SCN.
Extended period of limitation - HELD THAT:- There is sufficient evidence on record that Appellants have not tried to hide anything from the Department and in fact were furnishing all the relevant information as required by the Department from time to time and in fact making categorical assertions about not having used FAP in manufacturing of exempted products. There is nothing on record to suggest that any of these assertions were found to be wrong on inquiry or investigation by the Department. Therefore, in the facts of the case, invocation of extended period is also bad in law.
Both on account of merits as well as on limitation, the impugned order is not sustainable and is set aside - appeal allowed.
-
2024 (7) TMI 264
Process amounting to manufacture - process of mixing and blending makes a new product which is marketable in commercial parlance and it is a different product from MS and HSD - CBEC Circular No.139/08/2000-CX-4 dated 03.01.2001 - HELD THAT:- In respondent’s own case this Tribunal entertained the issue M/S. I.O.C. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PATNA [2019 (4) TMI 1072 - CESTAT KOLKATA] and held that the process or treatment to enhance the marketability of a product or to improve the value addition does not amount to manufacture relying on the Tribunal’s decision in HINDUSTAN PETROLEUM CORPN. LTD. VERSUS COMMR. OF C. EX, DELHI & ROHTAK [2008 (9) TMI 154 - CESTAT, NEW DELHI].
As the issue has already been decided in favour of the respondent in respondent’s own case for the earlier period, therefore, following the precedent decision in respondent’s own case, there are no merit in the appeal filed by the Revenue - appeal dismissed.
............
|
9911796707
