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Central Excise - Case Laws
Showing 621 to 640 of 81329 Records
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2024 (6) TMI 1106
Input service credit - consultancy service availed from EVIPL for trading carbon credit points - denial of credit on the ground being neither connected with the manufacture or for providing any output service - Rule 2(l) of the CCR - HELD THAT:- It is not the case of the Revenue that the appellant was using separate establishment for the manufacture of R-23. It is the admitted position that the R-23 gas is the most natural by-product generated during the manufacture of R-22, which is destroyed without releasing into the atmosphere for which the manufacturer becomes eligible to earn CC towards CER norms of the Kyoto protocol.
The order of Delhi Bench in the case of SHREE BHAWANI PAPER MILLS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE. LUCKNOW [2012 (12) TMI 741 - CESTAT NEW DELHI] would apply to the facts of the present case as well, where it was held that 'I fully agree with the learned advocate that the above contention of the Revenue that the amount earned as a result of consultancy must be either subject to excise duty or should be taxable under the Service Tax is nothing but a fallacy. The amount earned as a result of such service availed by the party is the income of the appellant and is not required to be leviable to Service Tax.'
Thus, the credit claimed and availed by the taxpayer is in accordance with law as applicable during the year under dispute and therefore the denial of the same was uncalled for - the impugned order is set aside - appeal allowed.
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2024 (6) TMI 1105
Refund of the reversed / payment of CENVAT credit amount and interest - final products in question that attracted nil rate of duty were exported and thus they become eligible for CENVAT credit of duty paid by them on the inputs used in the manufacture of such final products - HELD THAT:- The issue in the present appeal is no more res integra, since the same issue stands settled in their favour in JOLLY BOARD LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2014 (3) TMI 124 - CESTAT MUMBAI] where it was held that 'In this case, appellant has not executed any bond for export of the goods. If the goods are exempted, execution of bond was not required.'
There are no merit in the impugned order of the first appellate authority and the same is set aside - appeal allowed.
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2024 (6) TMI 1104
Clandestine removal - clearances made beyond the period mentioned in Annexure-I certificate - case of the Department is that the Appellants have received the Annexure 1 Certificates from buyers only for the financial year 2007-2008, however, the goods have been cleared beyond the said financial year thereby violating the conditions stipulated in the Impugned Notification r/w with the 2001 Rules - extended period of limitation - HELD THAT:- On verification of invoices it was seen that the goods cleared on the basis of the Annexure-I certificates included goods of invoices for the period beyond financial year mentioned. Thus, duty has been demanded alleging that clearances of the Annexure-I certificates do not cover the clearances of goods and thus the benefit of notification is not available. It is to be noted that the manufacturer buyer has used the goods for export and there is no dispute raised in this regard. The allegation of the department revolves around the wrong financial year mentioned in Annexure-I certificate - There is no allegation that excess goods have been cleared. The only allegation is that the financial year mentioned does not match with the invoices. The same financial year has been copied continuously in most of the Certificates. The notification or Rules does not put forward any condition to mention financial year.
In the present case, it is the manufacturer buyer who has to make the application before the AC/DC of his jurisdiction. The said application is forwarded to the appellant who has to mention the details of clearances and submit a copy of this application to the Range Superintendent of his jurisdiction - The said application having been verified by the concerned officers of his jurisdiction, the financial year for the specified quantity of goods is not a relevant criteria for the reason that all these clearances are supported by invoices and detailed description of the goods cleared. So, also verified by the jurisdictional authorities of the manufacturer buyer.
The demand of duty has been made on a minor infraction of wrongly stating the financial year in the application. Such a procedural lapse has to be condoned. The demand of duty alleging that the appellant has violated the conditions of the Notification r/w Rules 2001 cannot sustain.
Extended period of limitation - Suppression of facts or not - HELD THAT:- Though it is alleged in the show cause notice that the appellant has suppressed facts with intent to evade payment of duty there is no positive act of suppression established against the appellant. It is also seen that all the certificates are endorsed by the jurisdiction officers at the time of clearance as well as receiving the goods by the manufacturer buyer. The appellant has filed ER1 returns declaring the exemption availed by them and also furnished copies of the relevant certificates. In such circumstances, the demand raised alleging suppression of facts with intent to evade payment of duty cannot sustain. The issue on limitation is answered in favour of the appellant.
The impugned order is set aside - Appeal allowed.
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2024 (6) TMI 1103
Rejection of sanction of refund - duty paid in regard to paper wrapper which was later set aside by the order of Commissioner (Appeals) - HELD THAT:- The said issue has attained finality when the Tribunal dismissed the department appeal by Final order [2019 (12) TMI 470 - CESTAT CHENNAI]. The Commissioner (Appeals) has observed in the order impugned herein that the order of Tribunal would be only of persuasive value which is totally erroneous.
The decision passed by the Commissioner (Appeals) when appealed before the Tribunal and having decided by passing Final order has become final. In such circumstances, the impugned order interfering with the classification and the demand of duty which has been already decided in favour of assessee cannot be disturbed. There are no grounds to reject the refund claim sanctioned by the original authority.
The impugned order set aside. The order passed by the original authority is restored - Appeal allowed.
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2024 (6) TMI 1102
Maintainability of application of rectification of mistake - Section 35C of the Central Excise Act - HELD THAT:- The decision of the Larger Bench of the Tribunal in Lal Chand Anand [1985 (7) TMI 118 - CEGAT, NEW DELHI-LB] would apply to the facts of the present case. Section 35C of the Central Excise Act is identical to section 35C of the Central Excises and Salt Act, 1944. The Larger Bench construed that the order passed under 35C of the said Act is a final order and not an order deciding the reference. In this view of the matter if an application for rectification of mistake of any order passed under sub-section (1) of section 35C of the Central Excise Act can only be filed, the present application filed for rectification of mistake of an interim order of the Larger Bench deciding the reference, would not be maintainable.
The same position was reiterated by a Larger Bench of the Tribunal consisting of Three Members in Hico Enterprises [2005 (11) TMI 104 - CESTAT, MUMBAI]. This was a case where the rectification of mistake application was filed under sub-section (2) of section 129B of the Customs Act 1962 [the Customs Act]. Sub-section (2) of section 129B, which deals with rectification of mistake, refers to an order passed under sub-section (1) and sub-section (1) of section 129B is identical to sub-section (1) section 35C of the Central Excise Act. The Larger Bench of the Tribunal held that the order answering the reference is not a final order and so the application filed for rectification of mistake in this order would not be maintainable.
The contention advanced by the learned special counsel for the department that the order passed by the Larger Bench of the Tribunal deciding the reference should be treated as a final order for the purposes of section 35C(1) of the Central Excise Act as the Division Bench would ultimately be bound by the order of the Larger Bench cannot also be accepted in view of the decision of the Larger Bench of the Tribunal consisting of Five Members in Lal Chand Anand.
The inevitable conclusion that flows from the aforesaid discussion is that the present applications filed by the department for rectification of mistakes in the interim order dated 06.06.2023 passed by the Larger Bench of the Tribunal answering the reference made by a Division Bench of the Tribunal, are not maintainable.
The five applications filed for rectification of mistakes are, accordingly, rejected.
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2024 (6) TMI 1038
Process amounting to manufacture or not - activity undertaken by the appellant to convert the waste oils which is neither fit for use nor marketable as the primary product into lubricating oils which is not only fit for use - time limitation - benefit of SSI exemption under N/N. 8/2003-CE dated 01.03.2003.
HELD THAT:- In the case of Servo-Med Industries Pvt. Ltd. Vs. CCE, Mumbai [2015 (5) TMI 292 - SUPREME COURT], the Hon’ble Supreme Court has held that “manufacture takes place on the application of one or more processes. Each process may lead to a change in the goods, but every change does not amount to manufacture. There must be something more- there must be transformation by which something new and different comes into being, that is there must now emerge an article which has a distinctive name, character or use.”
In the case of CEE JEE Lubricants Vs. Commissioner of Central Excise & Customs, Cochin [2019 (8) TMI 1173 - CESTAT BANGALORE] wherein it is held that “We have considered the submissions made at length by both sides and peruse the records, it is undisputed that the appellant procured used oil from different sources. The processing under taken by the appellant is in form of Vacuum distillation, Centrifuging removal of moisture, carbon and other impurities. The entire tenor of the adjudicating authority while confirming the demand is only on the ground that the used oil was unfit for use as lubricating oils were made fit for the use by the appellant by refining or re-processing the same and hence, characteristic and the use has changed. Due to which Chapter Note 4 of Chapter 27 gets attracted and the said activity becomes manufacture.
The various decisions and the CBEC Board Circular, it is clear that Note 9 of Chapter 27 is not applicable to the present case. Therefore, the question of whether reprocessing of used waste oils into reprocessed oils that have marketable would amount to manufacture is answered in the negative concluding that it does not amounts to manufacture. Accordingly, the appeals are allowed in favour of the appellant.
Whether the appellant is entitled to avail benefit of SSI Exemption under Notification No.8/2003- CE dated 01.03.2003? - HELD THAT:- The Commissioner (A) has held that since the above process amounts to manufacture, the value needs to be included while computing the aggregate value of clearances of all excisable goods for the period 2010 to 2011. Since, it is already held that the above processes undertaken by the appellant do not amount to manufacture and they are not liable to pay excise duty, therefore, the question of including the value of those goods for computation of the aggregate value of the clearances is not sustainable. Accordingly, the appellant is eligible for the benefit of the SSI exemption under N/N. 8/2003-CE dated 01.03.2003.
Appeal are partially allowed by way of remand to the original authority only for limited purpose of verification of the fact that whether the appellants have discharged duty on the reprocessed oil cleared as ‘lubricants’.
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2024 (6) TMI 1009
Condonation of delay in filing of appeal by the Revenue - Rule 8 and Rule 8(3A) of the Cenvat Credit Rules, 2002 - matter lis pendens - HELD THAT:- It cannot be disputed that the decision in the case of INDSUR GLOBAL LTD. VERSUS UNION OF INDIA & 2 [2014 (12) TMI 585 - GUJARAT HIGH COURT] was challenged before the Hon’ble Supreme Court in Special Leave to Appeal No. 16523/2015 and by order dated 24th September, 2015 the Hon’ble Supreme Court has stayed the judgment of the High Court of Gujarat.
The decision of this Court in M/S. GOYAL MG GASES PVT. LTD VERSUS UNION OF INDIA & OTHERS [2017 (8) TMI 1515 - CALCUTTA HIGH COURT] appears to have been rendered taking note of the decision of the High Court of Gujarat in the case of Indsur Global. When similar appeal came up before this Court on earlier occasion, the Court has set aside the order of the learned Tribunal and remanded the matter back to the Tribunal to be kept pending before the Tribunal to be taken up for decision after the judgment is rendered by the Hon’ble Supreme Court.
The order passed by the learned Tribunal is set aside and the appeal is restored to the file of the learned Tribunal and the matter shall be kept pending and taken up after the judgment of the Hon’ble Supreme Court.
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2024 (6) TMI 1008
Refund - Principles of unjust enrichment - Return of excise duty recovered from M/s Archana Industries - whether the appellant had successfully rebutted the presumption that the incidence of duty was not passed on to the buyer under section 12B of the Central Excise Act? - HELD THAT:- The appellant is not denying this fact but submitted that those amounts paid as duty had been adjusted later on in sale consideration but in the considered opinion of all the authorities and learned tribunal burden has not bee duly discharged by the appellant. Initially, the sale price and excise duty were paid by way of cheques, thereafter the appellant started receiving by way of cash - The Adjudicating Authority, while adjudicating the case of refund examined the accounts of the appellant and gave a finding of fact that the duty had been recovered from the customer by the appellant. Therefore, the appellant has not come out from the rigour of S. 12B of the Act.
The appellant has only placed reliance on the certificate issued by the CA which is contrary to the invoices, hence the same is not liable to be relied on - the ledger accounts of relevant periods were filed, which also nowhere established that this excise duty was charged but later on adjusted. Hence concurrent finding of facts cannot be interfered in this appeal. The question of law which is framed is also a question of fact, not a pure question of law on which the findings can be reversed.
The invoices that came on the record clearly indicate that the appellant collected the excise duty from the buyer and paid it to the excise department and if it is refunded to the appellant, that would be an unjust enrichment to him. Hence, the same has rightly been directed to be credited to the consumer welfare fund as contemplated under section 11B.
In the case of GAIL (INDIA) LTD. VERSUS COMMISSIONER CENTRAL EXCISE AND CUSTOMS, MANIK BAGH PALACE, INDORE (MADHYA PRADESH) [2023 (10) TMI 879 - MADHYA PRADESH HIGH COURT], this Court has disbelieved the certificate issued by the Chartered Accountant and maintained the order of the Adjudicating Authority, Appellate Authority and CEGATE rejecting the claim of refund of the amount. However, in the present case, the refund has been allowed but instead of giving it to the appellant, the Authority has directed to credit the said amount to the consumer welfare fund.
Appeal dismissed.
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2024 (6) TMI 1007
Classification of goods - intermediate goods - marketable products or not - Polyester/ cotton rove twisted yarn and Nylon/ cotton rove twisted yarn - to be classified under Sub heading No.5608.00 or under sub heading 5607.90? - demand of duty and equal penalty.
Marketability - HELD THAT:- There is a clear finding that the goods are not available in the open market. If the appellant manufactures excess of the impugned products, they would not be able to sell these products in open market as there are no buyers to purchase the same. So, also in case they have shortage of these intermediate products, they would not be able to buy it from the market as it is not available in the market. It is very much clear that the goods are not marketable - In the case of CIMMCO BIRLA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR [2015 (8) TMI 582 - SC ORDER], the Hon’ble Apex Court held that the goods would be exigible to excise duty only if it is proved that they are marketable. The burden lies on the department to demonstrate that the goods are marketable.
The Tribunal in the case of M/S. NEEDLE INDUSTRIES (INDIA) PVT. LTD. VERSUS CCE, SALEM [2017 (4) TMI 1219 - CESTAT CHENNAI] had occasion to consider a similar issue. The goods in question was Gold Potassium Cyanide solution and the issue considered was the marketability of this item. It was brought out from evidence that the said item is not only highly poisonous because of the presence of its cyanide molecule, but also unstable. The Tribunal held that the goods cannot be said to be marketable.
The intermediate goods namely polyester / nylon / cotton rove twisted yarn are not marketable items. This issue is answered in favour of the assessee.
Classification of intermediate products - HELD THAT:- The issue of marketability is decided in favour of assessee. Only if the goods are marketable, they fall into the definition of excisable goods. The levy of excise duty is attracted only for manufacture of excisable goods. As we have already held that the goods are not marketable and therefore not excisable goods, the issue of classification is of no consequence and the demand of duty cannot sustain - the demand of duty confirmed in the impugned order is set aside.
Penalty - HELD THAT:- The adjudicating authority has imposed equal penalty under Section 11 AC of the Central Excise Act, 1994. Interestingly, there is no proposal in the show cause notice to impose penalty. Moreover, the appeals arise out of the finalization of assessment. The dispute being interpretation in nature and also with regard to classification of the impugned goods, the imposition of penalty is totally unwarranted.
The impugned orders are set aside - Appeal allowed.
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2024 (6) TMI 1006
Determination of assessable value - non-inclusion of 4% /5% of VAT on the impugned goods - whether the element of VAT that was not paid on the catalyst received from HMIL, is includible by the appellant for arriving at the transaction value of the finished goods for payment of Central Excise Duty at the time of its clearance, from their premises? - Extended period of limitation - penalty.
HELD THAT:- The liability to pay tax for the intermediate goods (catalyst) supplied by HMIL to the appellant, is on HMIL. The demand of VAT if any which was short paid by HMIL has to be realized from them by the concerned authorities, irrespective of their not passing the liability to their customer. There is no provision to include notional duties which have not been paid on the value of intermediate goods cleared by the supplier, onto the transaction value of the buyer who uses the goods in the further manufacture and clearance of finished goods.
Secondly section 4(3)(d) of the Central Excise Act, 1944 at the relevant time clearly stated that ‘transaction value’ does not include the amount of duty of excise, sales tax, and other taxes, if any, actually paid or actually payable on such goods. The impugned order does not explain why the exclusion of taxes from transaction value as stated in section 4(3)(d) of the Central Excise Act, 1944, is not relevant to this case.
The Apex Courts judgment in COLLECTOR OF CENTRAL EXCISE, PUNE VERSUS DAI ICHI KARKARIA LTD. [1999 (8) TMI 920 - SUPREME COURT] would apply in the case of sales tax also as also with other statutory taxes. Hence the transaction value of the goods cleared by the appellant to HMIL need not need incorporate the notional sales tax element.
Extended period of limitation - penalty - HELD THAT:- It has not been shown that there was any role of the appellant in HMIL having not paid sales tax. Neither was any blame worthy act brought out indicating the intention of the appellant to evade duty. They hence cannot be held liable for any omission on the part of the seller. Thereby the question of invoking the extended time period, imposing penalty etc does not arise.
The impugned order is hence set aside - the appeal is decided in favour of the appellant and against the department.
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2024 (6) TMI 1005
100% EOU - Demand of duty - Allegation that the amount of furnace oil consumed in the generation of electricity as per the Input-Output Norms - non-compliance with the condition no. 7 laid of N/N. 22/2003-CE dated 31.03.2003 - HELD THAT:- Admittedly, the appellant was granted permission for generation of power with an annual capacity of 6.2 MW by the Development Commissioner of CSEZ; also granted permission to transfer excess power of 3.5 MW into DTA subject to the Input-Output Norms as recommended by the Central Electricity Authority.
In absence of any diversion of the furnace oil and solely on the ground of less generation of electricity from the quantity of furnace oil consumed, the demand cannot be sustained.
The impugned order is set aside - appeal is allowed.
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2024 (6) TMI 1004
Method of valuation - clearance of physician samples discharging duty on the value arrived adopting Rule 8 of the Central Excise Valuation (Determination of price of Excisable Goods) Rules, 2000 i.e. 110% of the cost of production - extended period of limitation - penalty.
Method of valuation - HELD THAT:- The issue has been considered by this Tribunal in WALLACE LABORATORIES P. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BELGAUM [2024 (3) TMI 689 - CESTAT BANGALORE] where it was held that 'The physician samples cleared to their principal manufacturer are assessable under Rule 4 read with Rule 11 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. Also, the physician samples manufactured and cleared on job work basis for free distribution also be assessed on the value of retail sale price of similar goods and not under Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, since the same were not cleared for captive consumption.'
Extended period of limitation - penalty - HELD THAT:- The demand for the normal period of limitation has to be recalculated in the light of the principle of law referred to in the said judgment. However, since the issue relates to determination of assessable value which rests on interpretation of law and the appellant had disclosed the assessable value at the time of clearance of goods from the factory and reflected in the ER1 returns periodically; therefore invocation of extended period of limitation is unwarranted and also imposition of penalty on the appellant is unjustified.
The matter is remanded to the adjudicating authority for redetermination of the duty and interest for the normal period following the principles of law laid down, after observing principles of natural justice - Appeal allowed by way of remand.
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2024 (6) TMI 1003
Distinct legal entities or related persons to the appellant in terms of Sec.4(3)(b)(i) and (iv) of the Central Excise Act, 1944? - price determined by the appellant on the basis of prevailing market price at the time of removal of the finished goods was the “Transaction Value” in terms of Section 4(3)(d), and the price is to be determined in terms of Sec.4(1) of the Centra Excise Act, 1944 or not - extended period of limitation.
Whether M/s. Meghalaya Cast & Alloys Pvt. Ltd., M/s. Shree Ganapati Rolling Mills Pvt. Ltd. and M/s. Pawan Casting (Meghalaya) Pvt. Ltd., private limited companies registered under the Companies Act, 1956, are distinct legal entities or related persons to the appellant in terms of Sec.4(3)(b)(i) and (iv) of the Central Excise Act, 1944? - HELD THAT:- The department failed to establish business interest of the appellant in their other Group companies. Thus, the contention of the appellant is agreed that the customers in this case cannot be considered as ‘related persons’ merely because they have a common director and the appellant company holds some percentage of shares as mentioned above in the Group companies. In view of the above discussion, it is observed that the department has not brought in any evidence to substantiate the allegation that the appellant company is related to the group companies to whom the appellant has sold the goods - question answered in negative.
Whether the price determined by the appellant on the basis of prevailing market price at the time of removal of the finished goods was the “Transaction Value” in terms of Sec. 4(3)(d), and the price is to be determined in terms of Sec.4(1) of the Centra Excise Act, 1944? - HELD THAT:- The transactions between the appellant and their customer were on principal-to-principal basis and the price charged by the appellant to the customer was the sole consideration for the sale. There was no evidence brought on record to establish that the appellant has collected any extra commercial considerations from the customers - the price charged by the appellant was on the basis of prevailing market price at the time and place of removal and the same price has been adopted by them for other independent buyers also. Accordingly, the price charges by the appellant to their group companies is the ‘Transaction Value’ and there is no evidence available on record to conclude that the price is an influenced price - question answered in negative.
Whether the entire issue is barred by limitation of time? - HELD THAT:- The period of dispute is for the period from April 2005 to January 2008, whereas the impugned Show Cause Notice has been issued on 22.04.2010 i.e., after a lapse of one year from the relevant date, by invoking extended period of limitation - there is no suppression of fact with an intention to evade payment of tax exists in this case. Accordingly, the demand cannot be raised by invoking extended period of limitation and hence the demand confirmed in the impugned order is barred by limitation - answer is in the negative.
The demand of duty along with interest and penalty confirmed in the impugned order is not sustainable on merits as well as on limitation - Appeal allowed.
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2024 (6) TMI 1002
Bar of unjust enrichment - onus to prove on appellant - no enquiry by Revenue with the customers to substantiate that customers have received the machine/equipments or not - HELD THAT:- The facts are not in dispute that the appellant had issued 559 invoices during the period January 2010 to March 2010 for clearance of machines and equipments thereof. Revenue has not made any enquiry with the customers to substantiate their case that against these invoices the customers have received the machine/equipments or not? No enquiry was made with the transporters to ascertain the truth. Moreover, the goods lying in their factory premises were seized by the Revenue for which respondent claims that these goods pertains to the seized invoices. Further, as invoices were seized by the appellants and has not been released to the respondent, therefore, the respondent was compelled to issue fresh invoices for clearance of the seized goods on payment of duty. In that circumstances, it is the duty of the appellant to ascertain whether on these 559 invoices which have been seized whether the said goods have been cleared from the factory of the respondent or not, which the appellant failed to do so.
As the Ld. Commissioner(Appeals) passed the order after verifying all the issues regarding the clearance of the goods in question and payment of duty thereof and considering the Affidavits filed by the customers as well as transporters’ gate passes etc., the respondent has paid duty twice for the same goods.
The Ld. Commissioner(Appeals) has rightly sanctioned the refund claim subject to verification of the issue of bar of unjust enrichment by the adjudicating authority - there are no infirmity in the impugned order - appeal of Revenue dismissed.
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2024 (6) TMI 1001
Liability of differential duty on account of finalisation of provisional assessment - liability of interest under Section 11AB of the Central Excise Act, 1944 - requirement to issue SCN when the differential duty has already been paid in terms of Rule 9B(5) - HELD THAT:- Admittedly, the differential Excise Duty payments arose under provisions of Rule 9B(5) of CEA, 1944 during the period under consideration. As can be observed from the extracts of Rule 9B(5), there are no provision for recovery of interest when the differential duty is paid.
In case of SERAI KELLA GLASS WORKS PVT. LTD. VERSUS COLLECTOR OF C. EXCISE, PATNA [1997 (4) TMI 74 - SUPREME COURT], which has been relied upon by the lower authority, in fact supports the case of the Appellant. It has been held therein that after final assessment, there is no need to give any further notice under Section 11A for recovery of differential duty amount. Precisely for this reason, the Commissioner (Appeals) has held that the OIO passed is not proper.
Necessity to issue SCN - HELD THAT:- There was no necessity to issue any Show Cause Notice under Section 11A as has been rightly held by the Commissioner (Appeals). It is also noted that no further Appeal has been filed by the Revenue against this OIA. Therefore, the issue has reached finality. In such a case, the Commissioner (Appeals) is in error in confirming the interest alone under Section 11AA/11AB when the provisions have come into effect from 11/5/2001 and the provisional Assessment was finalized in terms of Rule 9B(5) of CER, 1944.
It is on record that the final assessment has been done in terms of Rule 9B(5) of CEA, 1944. Further, the Department has not come out with any evidence that the belated finalization of assessment in 2008 was due to any delay from the appellant side - there are no merits in the impugned order and the same is set aside - appeal allowed.
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2024 (6) TMI 1000
Valuation of goods cleared on Stock Transfer Basis - cost profit adopted was lower than the actual cost issued - demand confirmed on the ground that the goods cleared to their sister unit does not match exactly with the goods cleared to the 3rd parties and accordingly confirmed the demands - revenue neutrality - Extended period of limitation.
HELD THAT:- During the period under consideration, the Tribunals/Courts were consistently holding that the value adopted would be as per the Rule 4 of the Valuation Rules, 2000. In these cases, it was held that if even a fraction of supply was made to third independent parties, the value adopted has to be as per Rule 4 only. Subsequently, amendment was carried out on 22nd November 2013 to overcome these decisions. After this, for the clearances made to the sister unit, the value has to be arrived as per Rule 8 of the Valuation Rules, 2000.
Revenue neutrality - HELD THAT:- Admittedly, the goods were cleared to their sister unit who were using the materials for further manufacturing process and paying the Excise Duty on the finished goods. Therefore, whatever Excise Duty was paid by the Appellant, the same would have been available to the sister unit as Cenvat Credit. In such a case, the Appellant would not be gaining any additional benefit by lowering the assessable value while clearing the goods to their sister unit.
Extended period of limitation - HELD THAT:- The Tribunals and Courts have held that even if a fraction of clearances are for third parties, Rule 4 would be applicable. Since it’s a matter of interpretation, the Appellant cannot be burdened with suppression clause to confirm the demand. Therefore, the confirmed demand for the extended period is required to be set aside on account of time bar also.
Appeal allowed even on account of limitation in respect of the confirmed demand for the extended period.
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2024 (6) TMI 992
Availment of Cenvat Credit for clearance of rejected Capital Goods along with their manufactured product - Rule 8 and Rule 8(3A) of the Cenvat Credit Rules, 2002 - matter lis pendens - HELD THAT:- The learned Tribunal has also allowed the assessee’s appeal following the decision by which the portion of Rule 8(3A) of the Central Excise Rules, 1944 was struck down by the High Court of Gujarat in the case of INDSUR GLOBAL LTD. VERSUS UNION OF INDIA & 2 [2014 (12) TMI 585 - GUJARAT HIGH COURT]. The revenue had filed the said judgment before the Hon’ble Supreme Court in Special Leave to Appeal No. 16523 of 2015 and by order dated 24.9.2015 the Hon’ble Supreme Court has stayed the judgment of the High Court of Gujarat in the case of UNION OF INDIA VERSUS INDSUR GLOBAL LTD. [2014 (11) TMI 1101 - SC ORDER].
The matter is now pending before the Hon’ble Supreme Court. Therefore, the best course open would be for the Tribunal to wait for the decision of the Hon’ble Supreme Court and then take a decision in the matter.
The order passed by the learned Tribunal is set aside and the appeal is restored to the file of the learned Tribunal and the matter shall be kept pending and taken up for consideration and decided after the judgment of the Hon’ble Supreme Court - appeal allowed.
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2024 (6) TMI 908
Ineligibility for input services credited in terms of the CENVAT Credit Rules, 2004 - credit cannot be denied unless and until the assessment made by the dealer is revised the credit at the recipient’s end - sham transactions - HELD THAT:- The respondent filed invoices and returns before their jurisdictional offices and paid the service tax arising out of it. The Tribunal clearly held that even in the show-cause notice, there was no allegation that the services rendered under these invoices were not falling within the ambit of Rule 2(l) of the CCR 2004.
In absence of making specific allegation in the show-cause notice, the appellant cannot be permitted to make out a new case on facts while passing the final order. The invoices and returns were necessary documents which were admittedly filed before the Jurisdictional Officer. Thus, necessary formalities and compliances were made by the respondent.
The impugned order shows that they took ‘U-turn’ during cross-examination. In that event, if the Tribunal has disbelieved their statements, the Tribunal has taken a plausible view which does not warrant any interference by this Court. In other words, the said contention of the Tribunal is a finding of fact and does not involve any substantial question of law.
Appeal dismissed.
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2024 (6) TMI 907
CENVAT Credit - trading of investments, investment in shares - input services which were common to both manufacturing and trading activity - violation of rule 6(3)(i) of CCR, 2004 - HELD THAT:- The fact remains that there were investments in shares and securities, which is clearly a trading activity which is an exempted Service. The original authority has thought it fit to invoke Rule 6(3)(i) ibid to demand the quantum of credit that would have been availed as common input service on the exempted activity at 10% of the purchase price vide OIO No. LTUC/85/2013-ADC dated 29.3.2013. When the taxpayer challenged the said demand of the original authority, the first appellate authority having considered the amendment in the statute, has set aside the demand raised by the original authority vide OIA N0. 162/2015 dated 1.1.2015 - in order to quantify the consequential demand to be raised on the taxpayer, the first appellate authority has remitted the file to the original authority. The taxpayer - appellant being aggrieved against the above OIA, is before us by this appeal.
The trading activity undertaken by the appellant remains disputed, though the taxpayer is trying to shift the burden on the Revenue, but however, when a SCN is issued indicating investment/trading in shares, when the said allegation is not disputed by noticee, it is then for the noticee to discharge the burden by disproving the allegations levelled against it, with the help of supporting documents. Therefore, the arguments of the taxpayer not subscribed that the Revenue has not discharged the burden establishing the availing of credit on the common activities as alleged.
The direction of the first appellate authority is set aside to the extent of imposing appropriate penalty - it is deemed appropriate to direct the Adjudicating Authority who shall carry out the directions of the first appellate authority insofar as differential demand along with consequential interest, if any, is concerned.
Appeal disposed off.
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2024 (6) TMI 906
Refund of differential duty related to payment of Additional duty of customs & SAD - Transitional arrangements for input tax credit - HELD THAT:- As per the section 140(1) of the CGST ACT, 2017 CENVAT Credit of eligible duties can be carried forward as closing balance in ST-3 or ER-1 Returns as on 30.06.2017, thus as submitted by the appellant, differential duty paid after 01.07.2017 could not statutory be shown as credit carried forward in ER 1 Return as on 30.06.2017 even if the appellant had filed the return at a later stage. There is no enabling provision of CGST Act, 2017 for the transactional of the CENVAT credit of CVD and SAD paid on or after 01.07.2017. Section 142(3) of the CGST Act, 2017 governs the law relating to the transitional provisions including the refund of CENVAT Credit, duty, tax, interest or any other amount paid under the existing law and any amount eventually accruing to the person, which is not carried forward to GST.
Thus it is evident that the duty paid by the appellant on or after 01.07.2017 cannot be included in the ER-1 Return for the period ending on 30.06.2012 and the finding given by the lower authority in this regard is unsustainable. Regarding CBIC Circular No. 207/5/2017 Service Tax dated 28.09.2017, the procedure prescribed therein was only in respect of service tax paid under reverse charge on or after 01.07.2017.
CVD and SAD paid after 01.07.2017 on the goods imported prior to 01.07.2017 where eligible for CENVAT Credit, but could not avail because of introduction of GST from 01.07.2007 are eligible for refund in cash in terms of section 142(3) of CGST act 2017.
Appeal allowed.
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