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Central Excise - Case Laws
Showing 601 to 620 of 81329 Records
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2024 (6) TMI 1322
Clandestine Removal - paper boards - demand based on relying heavily on the statement of T Balakumar, Managing Partner - no other evidence placed on record by the Revenue to suggest the alleged clandestine removal - non-speaking order - violation of principles of natural justice - HELD THAT:- There appears to be a case made out by the appellant insofar as violation of principles of natural justice is concerned. To start with, it is contended that the statement of Balakumar is not considered in total, whereas the Revenue has picked up only the selective part, which is not justified. Other than this, there is no denial by the lower authorities that the Joint Commissioner did not afford reasonable opportunities since according to the appellants, it was the Additional Commissioner who has seized of the matter and hence, it was incumbent upon the Joint Commissioner to afford reasonable opportunities as prescribed under the statute. Thirdly, the adjournment appears to have been sought for on the ground of appointing a counsel to defend their case, has not been considered. Every person has a right to have a choice of his counsel to defend him before an authority.
There is no speaking order to this affect as to why the said request was not acceded to by the first appellate authority. It also appears that the appellant has relied upon various judicial presidents which should have been considered and then the adjudicating authority should have passed a speaking order.
The case remanded back to the file of the adjudicating authority, who shall pass a de-novo order after affording reasonable opportunities to the appellants - appeal allowed by way of remand.
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2024 (6) TMI 1321
Classification of Goods - Chewing Tobacco or Jarda Scented Tobacco - to be classified under CETH 2403 99 10 or under CETH 2403 99 30 - HELD THAT:- The issue in the present appeal is no more res integra and is covered by the decision in the case of M/S. FLAKES-N-FLAVOURZ VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH [2014 (9) TMI 664 - CESTAT NEW DELHI (LB)]. Against the Final order of the Tribunal upholding the product to be ‘Chewable Tobacco’ falling under Tariff Heading 2403 99 10 the appeal preferred by the Commissioner, Central Excise, Chandigarh before the Hon’ble Supreme Court has been dismissed in COMMR. OF CEN. EXC. AHMEDABAD VERSUS URMIN PRODUCTS P. LTD. AND OTHERS [2023 (10) TMI 1112 - SUPREME COURT] and the order of the Tribunal has been upheld.
Since the matter has been settled by the Hon’ble Supreme Court in favour of the Respondent, the present appeals filed by the Department are liable to be dismissed - the appeals filed by the Department are dismissed.
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2024 (6) TMI 1320
Valuation of goods - related person - Whether the price at which the finished goods cleared by the appellant to M/s. H.D. Consortium India Ltd. can be considered as the 'Transaction Value' for the purpose of payment of central excise duty? - time limitation.
Valuation of goods - HELD THAT:- As per the provisions of Section 4(1) of the Central Excise Act, 1944, it is observed that the price determined by the appellant is the sole consideration for sale of the finished goods and it is the ‘Transaction Value’ for determination of Central Excise Duty by the appellant. Accordingly, it is observed that there is no need to resort to Rule 9 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 to determine the assessable value in this case. Hence, the demand confirmed by interpreting Rules 8 and 9 of the Central Excise Valuation Rules, 2000, to confirm the demand of central excise duty in this case is not sustainable in law. Accordingly, the demand confirmed in the impugned order by rejecting the 'Transaction Value' declared by the appellant in the invoices raised to M/s. H.D. Consortium India Ltd., is not sustainable.
The appellant has been availing the benefit of Notification No. 20/2007-C.E. wherein they are eligible for refund of the whole of the duty of excise paid by them. Thus, there are merit in the contention of the appellant that there is no revenue loss to the exchequer on account of the clearance to M/s. H.D. Consortium India Ltd. at a lower price.
The Appellant has adopted a higher value addition and duty was paid at a higher side. Thus, there is no evidence available on record to substantiate the allegation that the appellant has undervalued the finished goods sold to M/s. H.D. Consortium India Ltd. Accordingly, the demand confirmed in the impugned order on the allegation of undervaluation of the final product is without any basis and liable to be set aside.
Time Limitation - HELD THAT:- The appellant is eligible to claim refund of the duty paid by them in PLA as per Notification No. 20/2007-C.E. dated 25.04.2007. The appellant has been filing returns regularly and disclosing all relevant information before the appropriate authority. The Range Superintendent has verified all the invoices and challans submitted by the appellant while sanctioning the refund claims. Thus, the suppression of fact with intent to evade payment of tax does not exist in this case. Accordingly, the demand raised by invoking the extended period of limitation is not sustainable.
The demand of duty confirmed in the impugned order is not sustainable - Since the demand itself is not sustainable, the question of raising any interest on the demands or imposition of penalty does not arise.
Appeal allowed.
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2024 (6) TMI 1319
Clandestine removal of goods - statements recorded during the course of investigation were not tested in terms of Section 9D of the Excise Act - requirement to prove with cogent evidence and not on the basis of preponderance of probabilities - HELD THAT:- The facts of the case in the case of M/S. SHIV SHAKTI SPONGE IRON LIMITED, M/S. BHARAT BHUSHAN SACHDEVA (FORMER DIRECTOR) (NOTICEE NO. 2) VERSUS COMMISSIONER OF CENTRAL EXCISE, BHUBANESHWAR BHUBANESHWAR-I COMMISSIONERATE [2020 (1) TMI 532 - CESTAT KOLKATA] is perused. In that case, no search was conducted in the premises of M/s Shiv Shakti Sponge Iron Ltd. the same has been recorded in the said order. Therefore, the facts of the case in hand are not similar to the case of M/s. Shiv Shakti Sponge Iron Ltd. Therefore, the said decision is not applicable to the facts of the case in hand.
The statements recorded during the course of investigation which were relied upon, are to be tested and examined in terms of Section 9D of the Excise Act, 1994 in which the Respondent failed to do so. In that circumstances it would be in the interest of justice to remand the matter back to the Adjudicating Authority first to test the statements relied upon in terms of Section 9 D of the Excise Act, 1944 and thereafter, to pass an appropriate order in accordance with law following judicial pronouncements.
Matter remanded back to the adjudicating authority for fresh adjudication - appeal disposed off by way of remand.
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2024 (6) TMI 1318
Eligibility for exemption in terms of N/N. 06/2006-C.E. dated 01.03.2006 - goods supplied to Mega Power Projects wherein the contract is awarded on the basis of international competitive bidding - HELD THAT:- The respondent has manufactured and supplied the goods by availing the benefit of exemption Notification No. 06/2006-C.E. dated 01.03.2006. The goods supplied by the respondent are covered under Sl. No. 400 of Notification No. 21/2002-Cus. dated 01.03.2002 which clearly exempts goods imported for Mega Power Projects. The only condition prescribed in the said Notification is that the respondent should submit a certificate from an Officer not below the rank of Joint Secretary to the Government of India in the Ministry of Power - the respondent has produced the certificate from the competent authority to the effect that the goods are required for the Mega Power Projects. Accordingly, the respondent fulfilled the condition stipulated in the said Notification.
The ld. adjudicating authority has examined this issue and rightly held that the respondent is eligible for exemption in terms of Notification No. 06/2006-C.E. dated 01.03.2006 - there are no infirmity in the impugned order dropping the proceedings.
The impugned order passed by the ld. adjudicating authority upheld - the appeal filed by the Department is dismissed.
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2024 (6) TMI 1317
Retrospective application of benefit of N/N. 50/2008-CE (NT) dated 31.12.2008 - supply of exempted goods both to SEZ units and SEZ Developers/ Promoters - respondent made an objection regarding availment of said exemption since the exemption at the relevant time was only applicable to goods cleared to units and not to SEZ Developers - HELD THAT:- The issue is squarely covered by the decision of the jurisdictional High Court in the matter of THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX AND THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S FOSROC CHEMICALS (INDIA) PVT LTD AND OTHERS [2014 (9) TMI 633 - KARNATAKA HIGH COURT] and Division Bench decision of this Tribunal in the matter of SUJANA METAL PRODUCTS LTD. VERSUS COMMISSIONER OF C. EX., HYDERABAD [2011 (9) TMI 724 - CESTAT, BANGALORE].
Following the above, it is held that supplies made by the appellant to Developers of SEZ are eligible for exemption and demand of duty and recovery of Cenvat credit is unsustainable. Penalty is also unsustainable.
The impugned order is set aside - Appeal allowed.
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2024 (6) TMI 1263
CENVAT Credit - services not related to the manufacture of final products - interpretation of expression “in or in relation to manufacture of goods” - HELD THAT:- It is found that the expression “activities in or in relation to manufacture” postulates activities which are integrally connected to the manufacture of the goods.
The Hon’ble Supreme Court in M/S. COCA COLA INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, PUNE-III [2009 (8) TMI 50 - BOMBAY HIGH COURT], held 'input services used in relation to setting up, modernization, renovation or repairs of a factory will be allowed as credit, even if they are assumed as not an activity relating to business as long as they are associated directly or indirectly in relation to manufacture of final products and transportation of final products upto the place of removal.'
It is found that all the services have got a nexus to the manufacturing process and hence input credit on the same cannot be denied. The services are not used primarily for personal use or consumption of any employee in their individual capacity. Most of the amounts involved are less than Rs.10,000/-. Further, there has been a frequent change in the definition of ‘inputs’ over a period of time and hence the legal issue was complex with different interpretation given by different forums from time to time.
The issue has been decided on merits in favour of the appellant and hence the impugned order merits to be set aside - Appeal allowed.
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2024 (6) TMI 1262
Clandestine removal of goods - personal penalty of the key management personnel of the Appellant company - loose sheet glass valued not recorded in the RG-1 register - production quantity and sales quantity found to be at variance with RG-1 and RT-12 figures - HELD THAT:- The Ld. Commissioner in the impugned Order has noted that the Appellants have not furnished its response to certain facts which weigh heavily against it. Before dealing with the observations made by the Ld. Commissioner, we take note of the fact that the Appellants had duly filed its response to the four issues raised in the impugned Order and therefore the observation that the Appellants have not furnished any response on the four issues is factually incorrect.
The suppressed quantities of glass sheets clandestinely removed have been determined by estimating production based on maximum installed capacity and such maximum installed capacity has been determined based on the statement of three employees of the Appellants. The suppressed quantities alleged to be clandestinely removed have been computed by deducting such production from the figures as reported by the Appellants in its RT-12 returns during the period in dispute.
The allegation of clandestine removal and suppression of facts on the ground of non-recording of loose glass sheet at the stage of production itself miserably fails. Had the Department also not carried and agreed to the view that the RG-1 stage for loose glass sheets would be the point when such loose sheets are decided to be cleared as such, there was no need to withdraw the letter dated 01.01.1985 by a subsequent letter dated 09.09.1994 which was after the date of the search.
No evidence of unaccounted purchases of inputs have been brought on record by making enquiries from the suppliers of such material. There is no evidence of any unaccounted sales which has been brought on record by making enquiries from either the transporters or the buyers of alleged clandestinely removed glass sheets. Interestingly, the SCN notes that enquiries had been initiated against the transporters but no finding, much less an adverse finding, has been noted in the SCN. Even no unaccounted payments to the transporters have been alleged - revenue has utterly failed to discharge the burden of proof by bringing on record any evidence of any kind to substantiate the charge of clandestine removal.
Considering the very nature of the industry and the manufacturing process detailed by the Appellants, factors such as normal breakage and thickness of the glass produced have been completely ignored - it is held that maximum installed capacity determined is without any basis whatsoever and is therefore, liable to be rejected.
The impugned Order is thus set aside - appeal allowed.
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2024 (6) TMI 1261
CENVAT Credit availed on the imported goods - manufacturing activity or not - manufacture and clearance of PVC Tin Stabilizer, PVC Stabilizer, Calcium Zinc PVC Stabilizer, Oxidized Veg. Oil (Epoxy Plasricizer) - HELD THAT:- Even without deciding the issue whether the activity carried out by the appellant is amount to manufacture or otherwise. This case can be decided on other issue. It is found that the appellant have made a submission that even though there is no manufacture but the assessee has paid the excise duty, hence, the Cenvat credit on the imported goods cannot be denied.
From the judgment in AJINKYA ENTERPRISES VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-III [2013 (6) TMI 610 - CESTAT MUMBAI] and COMMISSIONER OF CENTRAL EX. & CUS., SURAT-III VERSUS CREATIVE ENTERPRISES [2008 (7) TMI 311 - GUJARAT HIGH COURT], it can be seen that even though the activity does not amount to manufacture but if the assessee has chosen to pay the excise duty on the processed goods (whether it amount to manufacture or otherwise). The assessee cannot be denied the Cenvat credit.
In the present case, it is seen that the appellant have already paid the amount in the form of excise duty which is equivalent to Cenvat credit availed. For this reason also the payment of duty by the appellant is as good as payment of Cenvat credit availed on the imported goods. Therefore, no show cause notice was required to be issued hence, the appellant had already made good by paying the duty which is nothing but reversal of Cenvat credit taken on the imported goods. Accordingly, neither any show cause notice was required nor the consequential interest and penalties is required to be recovered.
The assessee can take the Cenvat credit even though their activity does not amount to manufacture and clear the same on payment of duty. Therefore, the entire transaction of the appellant is squarely covered by the provision of Rule 16 of Central Excise Rules, 2002 therefore, for this reasons the contention of the department that since no manufacturing activity is involved appellant is not entitled for the Cenvat credit, clearly fails on that basis. The entire proceeding of confirmation of demand, interest and penalty is not sustainable.
The impugned order is not sustainable and is set aside - appeal allowed.
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2024 (6) TMI 1260
CENVAT Credit - credit denied only on the basis of board circular 783/16/2001-CX dated 28.04.2004 - undervaluation of asset - it is alleged that the excise duty on inputs procured is charged as expenditure to ‘cost of raw material consumed’, thereby resulting in dual benefit - HELD THAT:- Form the circular, it can be seen that the circular only give a guideline to the field formation that in case of any expenditure claimed on account of Cenvat credit, the same will amount to double benefit one in Cenvat credit and other in income tax. Accordingly, the said fact may be intimated to the income tax department. It is found that the board circular does not stipulate that in such situation the Cenvat credit should be denied - even the board circular does not suggest that in such situation the availment of Cenvat credit is incorrect illegal or in contravention to any of the provision of Cenvat Credit Rules, 2004. Therefore, in these circumstances, the department could not make out any case that the appellant is not eligible for Cenvat credit.
From the decision in SHREE PANDURANG SSK LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-III, [2017 (2) TMI 567 - CESTAT MUMBAI], it can be seen the case of the department was the appellant have taken the double benefit, one by taking Cenvat credit in the Cenvat account and other by capitalizing the input service whereby they can get income tax benefit. Discarding the view of the department, the Tribunal held that when the Cenvat credit was taken in conformation to the Cenvat Credit Rules, 2004 effect given in the income tax will not affect the eligibility of the Cenvat credit.
The appellant are entitled for the Cenvat Credit - the impugned order is set aside - appeal allowed.
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2024 (6) TMI 1179
Recovery of Modvat/Cenvat Credit availed along with interest and penalty - receiving certain raw materials based on purchase invoices, without actually physically receiving any material and availed Cenvat credit - HELD THAT:- The petitioners have paid the amount of Rs. 12,90,000/- during the course of search. The said amount was adjusted towards the outstanding demand by the adjudicating authority while passing the Order-in-Original dated 26.8.2004.
Petition dismissed.
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2024 (6) TMI 1178
Process amounting to manufacture or not - appellants had been receiving inputs like aluminum ingots from M/s Auto Ignition Ltd., Rudrapur, Uttrakhand and job-work challans for making aluminum dye-cast components - area-based exemption contained under N/N. 32/99 availed - HELD THAT:- Tribunal has dealt with a case involving identical facts in the case of ALUMECO INDIA EXTRUSION LTD. VERSUS COMMR. OF C. EX., HYDERABAD-I [2009 (5) TMI 402 - CESTAT, BANGALORE] observed that 'It is his finding that the definition of “manufacture” includes everything, which undergoes a change. We find that the learned Adjudicating Authority has misdirected himself on this ground.'
The process undertaken by the appellants on the ingots supplied by the principal job-worker does not amount to manufacture; the facility available to the principal manufacturer or the job-worker cannot be denied for procedural infractions, more so, when the Department was put to notice by way of seeking permission; it is not the fault of the principal manufacturer or the job-worker if there was delay in giving or denying the permission.
It is opined that if the process undertaken by the job-worker/ appellant amounted to manufacture, duty requires to be demanded from the principal manufacturer and in no case, duty can be demanded from the job-worker.
Appeal allowed.
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2024 (6) TMI 1177
Classification of goods - aerated drinks and fruit pulp or fruit juice based drinks under different brand names - to be classified under Tariff Heading 2202 9020 or under Chapter Sub-heading 22021020 - period April 2011 to August 2012 - HELD THAT:- The issue of classification of the impugned product is no more res integra as the same issue has been settled in favour of the Appellant in Appellant’s own case M/S. HINDUSTAN COCA-COLA BEVERAGES P LTD VERSUS COMMISSIONER OF CGST, BHIWANDI [2022 (11) TMI 595 - CESTAT MUMBAI]. The order relied on the decision by a Larger Bench of this Tribunal in M/S BRINDAVAN BEVERAGES PRIVATE LIMITED, KRANTI KUMAR CHANDRAKAR, M/S PEPSICO INDIA HOLDINGS PRIVATE LIMITED VERSUS COMMISSIONER CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, HAPUR AND BAREILLY [2019 (10) TMI 762 - CESTAT ALLAHABAD (LB)] which held that the product “Minute Maid Nimbu Fresh” is classifiable under Tariff Item 2202 90 20 of the Central Excise Tariff Schedule under the category of “fruit pulp or fruit juice based drinks”. The Larger Bench did not agree with the decision in the matter of HINDUSTAN COCA COLA BEVERAGES PVT LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE-I [2014 (9) TMI 659 - CESTAT MUMBAI], on which reliance has been placed in the impugned order by the Commissioner (Appeals). The Larger Bench held 'The product “Minute Maid Nimbu Fresh (hereinafter referred to as MMNF) manufactured by Brindavan Beverages Private Limited, and 7UP “Nimbooz Masala Soda” or 7UP “Nimbooz” manufactured by PepsiCo India Holdings Private Limited are classifiable under Tariff Item 2202 90 20 of the Central Excise Tariff Schedule under the category of “fruit pulp or fruit juice based drink'.
The appeal filed by the Appellant is allowed.
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2024 (6) TMI 1176
CENVAT Credit on inputs - Process amounting to ‘manufacture’ or not - embossing the logo of M/s. Hyundai on caseskin which was obtained by cutting the coil - HELD THAT:- When the final product is stated as dutiable and duty is accordingly paid and collected by the revenue by treating the activity as manufacturing activity, the CENVAT credit is always available and hence, there is no question of denial or reversal of the same in the case on hand. Moreover, it is not disputed by the revenue that the appellant had paid duty, but they only are denying the CENVAT credit, which is not permissible in view of the ratio laid down by the High courts in THE COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS AJINKYA ENTERPRISES [2012 (7) TMI 141 - BOMBAY HIGH COURT].
The denial as made in the impounded order is contrary to the settled position of law, which therefore requires to be set aside - Appeal allowed.
Levy of penalty under Rule 15A of the CENVAT Credit Rules, 2004 - HELD THAT:- The penalty is fastened based only on statement, without there being any independent evidence in support - the impugned order set aside.
Appeal allowed.
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2024 (6) TMI 1175
Valuation - inclusion of cost of tools from the buyer-customers by raising excise invoices, in the assessable value - benefit of N/N. 67/95–CE dated 16.03.1995 - Double Taxation or not - extended period of limitation - suppression of facts or not.
Inclusion of cost of tools from the buyer-customers by raising excise invoices, in the assessable value - HELD THAT:- The issue as to whether the cost of tools supplied by the buyer free of charge back to the appellant, should be included as an amortised cost, when the said tools are used in the appellants factory for manufacture of components for the said buyers, in terms of Rule 6 of CVR 2000 or not, has been examined by this Tribunal in M/s Best Cast IT Ltd [2023 (6) TMI 99 - CESTAT CHENNAI] after considering the judgements of COMMISSIONER OF CENTRAL EXCISE, MUMBAI-I VERSUS M/S MEGA RUBBER TECHNOLOGIES PVT. LTD. [2016 (1) TMI 157 - CESTAT MUMBAI] and the Larger Bench decision in Mutual Industries Ltd Vs Commissioner of Central Excise, Mumbai [2000 (3) TMI 74 - CEGAT, COURT NO. I, NEW DELHI], where it was held that 'had the mould not been supplied by the customer, appellant could not have agreed to the price of the finished goods at the price as is evidenced by the contract entered into between them. So, the price of the finished goods fixed in the contract between the parties can safely be taken as not the sole consideration for the sale of the finished product.'
The fact whether the tools were manufactured in the appellants factory or was outsourced by the appellant from another company would not change the legal position as per CVR 2000 so long as they were paid for by the buyer-customer - The tools manufactured and used for production of components at the cost of the buyer and against purchase orders, needs to be included in the cost of production and amortized for payment of duty on the final products manufactured by the appellant using such tools.
Double taxation - HELD THAT:- Double taxation with reference to central excise duties on goods means levying central excise taxes twice on the very same excisable product, which is not the case here - Had they purchased the tools from the market its price would have automatically entered the price of the final product sold by them. Hence the question of double taxation does not arise.
Benefit of N/N. 67/95 – CE dated 16.03.1995 - HELD THAT:- A Co-ordinate Bench of this Tribunal in Ashok Iron Works [2004 (2) TMI 482 - CESTAT, BANGALORE] has held at para 6 that the benefit of Notification No.67/95 – CE was available to jigs, fixtures, patterns and tooling irrespective of the ownership of these goods - The excise duty element would hence not form a part of the amortised value of the tools and it needs to be re-worked out suitably. However, it is noted that the eligibility for exemption from payment of duty for the tools does not detract from amortising the cost of the tool charged to the buyer, less the duty element.
Extended period of limitation - HELD THAT:- The requirement of law is that mere failure or negligence in adopting the correct value and making the correct payment of duty cannot be considered as suppression of fact with intention to evade payment of duty, especially when the issue was complex. Something more is required to show that there was a positive intention to evade payment of duty - there are no grounds to invoke the extended period and the demand for the larger period must fail.
The matter remanded back to the Original Authority for re-quantification of the duty demand for the normal period - appeal allowed by way of remand.
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2024 (6) TMI 1174
Rejection of refund claim - unjust enrichment - rejection by holding that in respect of depot sales, the price indicated in the invoices were the transaction value and hit by the bar of unjust enrichment - HELD THAT:- The first appellate authority has observed that for the year 2008–09, as against claim of ₹14,38,174/- the original authority had sanctioned ₹86,129/- and for the other year a refund of ₹6,96,147/- was allowed and the rejection of the balance claim was pertaining to the excess duty paid in the respect of depot sales. It is the case of the Revenue that though Rule 7 of CER, 2002 enabled a taxpayer to claim refund of any amount paid in excess during provisional assessment, but however, the same is not absolute but subject to the principles of unjust enrichment.
The impugned order is set aside - appeal allowed.
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2024 (6) TMI 1173
100% EOU - demand of Education cess and Secondary and Higher Education Cess on the countervailing duty and basic customs duty without paying the same on the excise duty - period involved in the present dispute is from November 2011 to May 2012 - HELD THAT:- Having considered the decision of larger bench of the Tribunal in the case of KUMAR ARCH TECH PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II [2013 (4) TMI 482 - CESTAT NEW DELHI - LB] has held that the demand confirmed in the against the taxpayer therein was not called for and accordingly set aside the demand therein.
The impugned order set aside - appeal allowed.
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2024 (6) TMI 1109
Input service or not - Rent-a-Cab services - Outdoor Catering services - Club or Association services - CENVAT Credit on Service tax paid (though on its own volition without providing any output service and without any authority of law).
Whether in the facts and circumstances of the case, the respondent assessee is entitled to avail credit on services i.e. Rent-a-Cab services, Outdoor Catering services and Club or Association services which have been specifically excluded from the definition of “input services” as defined under Rule 2 (l) of Cenvat Credit Rules, 2004, w.e.f. 01.07.2012? - HELD THAT:- Admittedly there is no material on record to show that these services were utilised for personal consumption to deny credit. Respondent/Assessee is a company and therefore issue of personal consumption does not arise. These expenses are admittedly incurred for its employees who are working for the respondent/assessee in the course of its business to render output services - Whether any service is used for personal consumption or not is certainly question of fact. Furthermore, on other services, the appellant / revenue has not disputed this position. In view thereof, this being question of fact, no substantial question of law arises from the impugned order of the Tribunal.
Whether in the facts and circumstances of the case, the CESTAT was right in holding that because the respondent assessee has paid the Service tax (though on its own volition without providing any output service and without any authority of law), such a payment of service tax will entitle them to take cenvat credit of the service paid on input service? - HELD THAT:- Respondent / Assessee discharges service tax liability on various amount collected from sale of time slot, subscription charges etc. before remitting the money to Singapore. Respondent / Assessee takes input tax credit on the aforesaid service tax paid and same has been accepted and admitted by appellant / revenue. Appellant / Revenue has also admitted that respondent/assessee is entitled to input tax credit of the said service tax liability paid - The Tribunal has given a finding that appellant / revenue has not disputed that the provider of ‘broadcasting service’ is entitled to CENVAT credit of the service tax paid on specified services - the contention of appellant / revenue that respondent / assessee does not have the physical establishment for rendering the Broadcasting service is misconceived since the retrospective amendment itself deems that respondent / assessee has having rendered broadcasting services.
Even if the contention as raised by appellant / revenue is to be accepted then they would be required to refund the CENVAT credit which they propose to disallow since there is no dispute that the said CENVAT credit is taken on input services and the services on which the service tax has been discharged were exported. Therefore the effect of denial of credit would be that the appellant / revenue will have to refund the said credit amount resulting into whole exercise being tax neutral.
Thus, no substantial question of law arises in as much as on account of retrospective amendment, respondent/assessee is deemed to have rendered the broadcasting services and in the alternative based on the admission of appellant /revenue, the amount of input tax credit of which is taken has been collected without any authority of law and therefore would be required to be refunded.
Since no substantial question of law arises from the impugned order, the present appeal is dismissed.
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2024 (6) TMI 1108
CENVAT Credit - duty paid on input materials and input services are used both in or in relation to the manufacture of dutiable and exempted goods respectively - correctness of switching the options from Rule 6(3)(i) to 6(3)(ii) of the Cenvat Credit Rules, 2004 in the same financial year 2008-2009 despite Explanation-I to the Rule 6(3) of Cenvat Credit Rules, 2004 which prohibits the switching of option in the same financial year - error in not considering the exercise of option under Rule 6(3)(i) of Cenvat Credit Rules, 2004 by M/s Tata Steel Limited as they have self-assessed their tax liability in statutory Returns ER-1.
HELD THAT:- The restriction provided under “Explanation-I” of not being able to withdraw the option during the remaining part of the financial year can arise only when a manufacturer has exercised such option with due intimation to the jurisdictional Central Excise authority. This is evident from Rule 6(3A)(a) of the CENVAT Credit Rules itself, inasmuch as, this provision specifically requires that while exercising the option to pay in terms of Rule 6(3)(ii) of the CENVAT Credit Rules a manufacturer has to provide/intimate in writing to the Range Superintendent the particulars as detailed in the said sub-clause (a) of Rule 6(3A). The particulars detailed in the said sub-clause (a) of Rule 6(3A) of the CENVAT Credit Rules includes intimation of the date from which the option is being exercised or is proposed to be exercised.
As a matter of fact, the requirement under Rule 6(3A)(a)(ii) of the CENVAT Credit Rules in clear terms indicate that a manufacturer can opt for the option under Rule 6(3)(ii) of the CENVAT Credit Rules at any point of time during a financial year, upon intimation to the Range Superintendent. Once such option is exercised by a manufacturer, the restriction as provided in "Explanation-I” of Rule 6(3) would become applicable and the manufacturer cannot withdraw from such option “during the remaining part of the financial year” - The correspondence on record of the Assessee with Range Superintendent exchanged during the period May 2008 to June 2008, clearly establishes that the Assessee had never exercised at any point of time during the period 2008-09 the option in terms of Rule 6(3)(i) of the CENVAT Credit Rules prior to May 2008.
There are no hesitation in holding that the Commissioner has erred in holding that it is on record that the Assessee had exercised the option under Rule 6(3)(i) of the CENVAT Credit Rules in the instant case. There is no document disclosed either in the show cause notice or in the OIO which evidences exercising of such option by the Assessee - Further, exercising an option is a positive act and cannot be inferred as has been sought to be done by the Commissioner.
The learned Tribunal has not committed any error and had rightly allowed the appeal of the Assessee and quashed the Order-in-Original - Appeal dismissed.
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2024 (6) TMI 1107
Refund of the Cenvat duty on education cess and secondary & higher education cess paid through Cenvat Credit account of BED in terms of the provisions of Notification No. 56/2002-CE dated 14.11.2002 as amended - part rejection of refund on account of education cess and secondary & higher education cess paid through Cenvat Credit account of BED - appropriation of amount from sanctioned refund.
Rejection of refund on account of education cess and S&H education cess - HELD THAT:- The appellant is registered in the state of Jammu & Kashmir and were availing benefit of area based exemption under N/N. 56/2002-CE dated 14.11.2002. The said notification provides mechanism to give effect to aforesaid exemption by way of refund of duty paid through PLA. As per the procedure, the manufacturer avails Cenvat Credit of duty/cess paid by them on inputs and utilizes whole of the CENVAT credit available with them on last day of the month for payment of Central Excise duty and Cess. The balance amount of duty is paid in cash and on application of refund, the refund is granted for payment of Central Excise made in cash only.
The above said issue is no more res-integra and stands finally decided by the decision of the Hon'ble Supreme Court in the case of M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA & OTHERS [2019 (12) TMI 286 - SUPREME COURT], wherein the Hon'ble Apex Court, after considering the provisions of Notification No. 71/2003-CE dated 09.09.2003 has held that a notification has to be issued for providing exemption under the said source of power and that in the absence of notification containing an exemption to such additional duties in the nature of education cess and secondary & higher education cess, they cannot be said to have been exempted.
Appropriation of an amount of Rs.4,61,315/- - HELD THAT:- The impugned order is not sustainable because appropriation cannot be done without issuing any show cause notice and without granting personal hearing to the appellant. This issue was considered by the various benches of this Tribunal in M/S DEPOSIT INSURANCE AND CREDIT GUARANTEE CORPORATION VERSUS COMMISSIONER, CENTRAL EXCISE & SERVICE TAX (LTU) , MUMBAI (VICE-VERSA) [2023 (5) TMI 339 - CESTAT MUMBAI] - The Tribunal has held that the refund cannot be appropriated when there is no confirmed demand at the time of adjudication and recovery provisions of Central Excise Act are not applicable to service tax.
The rejection of refund of Rs.62,842/- on account of education cess and S&H education cess is upheld - Appropriation of an amount of Rs.4,61,315/- from the sanctioned refund amount is set aside - appeal allowed in part.
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