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Central Excise - Case Laws
Showing 641 to 660 of 81330 Records
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2024 (6) TMI 905
Abatement of appeal - whether the Appeals continue after initiation of Corporate Insolvency Resolution Process (CIRP) and Order approving the Resolution plan passed/approved by the Learned NCLT under Insolvency and Bankruptcy Code, 2016? - HELD THAT:- The Mumbai bench of this Tribunal in the case of M/S. ALOK INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BELAPUR AND COMMISSIONER OF CEN. EXCISE, MUMBAI CENTRAL [2022 (10) TMI 801 - CESTAT MUMBAI] the Learned Advocate for the appellant observed that Rule 22 should be applicable the moment the successor interest with sufficient rights is appointed by NCLT to make an application for continuation of the proceeding.
The Hon’ble Supreme Court and High Courts in a catena of cases that the Tribunal is a creature of the statute; it cannot travel beyond the express powers vested under the Statute or Rules framed under the statute, while deciding a statutory Appeal filed before it against the Orders of the prescribed statutory authorities mentioned under the statute. The corollary, any order passed by the Tribunal beyond the vested powers under the statute would be non est in law.
The appeal abates once the CIRP is initiated and IRP appointed and/or Resolution plan is approved - the appeals filed by the Appellant and the Revenue abate as per Rule 22 of CESTAT (Procedure) Rules, 1982.
Appeal abated.
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2024 (6) TMI 904
Valuation of goods - stock transfer - computation of differential duty - Revenue neutrality - penalty - extended period of limitation.
HELD THAT:- The Appellants’ cleared the goods on stock transfer to their sister units. The entire duty paid by the Appellants ‘would be available to the recipient unit as Cenvat credit. Accordingly, the entire issue is of revenue neutral.
The decision cited by the Appellant in the case of M/S. ANGLO FRENCH TEXTILES VERSUS CCE, PUDUCHERRY [2017 (9) TMI 1178 - CESTAT CHENNAI], is squarely applicable in this case. In this case the demand confirmed has been set aside on the ground of revenue neutrality.
Extended period of Limitation - penalty - HELD THAT:- The Appellants had not mis-declared or suppressed any information with an intent to evade payment of duty. Accordingly, the extended period of limitation not invokable in these cases. For the same reason, no penalty imposable on the Appellants’. Accordingly, the penalties imposed on the Appellants’ is set aside.
The impugned order set aside - appeal allowed.
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2024 (6) TMI 903
Rejection for waiver of show-cause notice - imposition penalty under Section 11AC of CEA - prior determination of duty under Section 11A(2) of the Central Excise Act, 1944 - demand of differential Central Excise duty along with Cess and interest - HELD THAT:- Where any duty of Excise has not been levied or paid or has been short levied or short paid by reasons of collusion or any willful misstatement or suppression of facts or contravention of any of the provisions of the Act or the Rules made there under with an intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section 2 of Section 11A shall also be liable to pay a penalty equal to the duty so determined.
In terms of the above provisions, the duty has to be necessarily determined under sub-section 2 of Section 11A has to determine the duty of Excise due from such person and there upon such person shall pay the amount so determined. In the impugned order, it is found that there is no allegation or determination of duty as per Section 11A (2) invoking the proviso to Section 11A. Therefore, the notice and the impugned orders imposing penalty under Section 11AC without determining the duty under Section 11A(2) as per the provisions of Section 11A cannot be sustained.
The High Court of Karnataka in the case of Commissioner of Central Excise, Mangalore vs. Shree Krishna Pipe Industries [2004 (1) TMI 82 - HIGH COURT OF KARNATAKA AT BANGALORE] held in similar set of facts has held 'where assessee deposits the duty even prior to the issue of a show cause notice, penalty should not be imposed and interest should not be levied.'
The penalty is not imposable as the duty has been paid before the issuance of show-cause notice and there is no determination of duty thereafter - the impugned order is set aside - appeal allowed.
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2024 (6) TMI 843
Valuation - excess freight collected as compared to the actual freight paid to the transporter is includable in the assessable value of the excisable goods or not - HELD THAT:- The identical issue has been considered in catena of judgments, particularly based on the Hon’ble Supreme Court Judgment in the case of Baroda Electric Meter Ltd [1997 (7) TMI 126 - SC ORDER] where it was held that 'The Tribunal accepted the position that equalised freight was charged by the appellant from everyone, but proceeded to say that even though freight cannot be a part of the assessable value that wherever freight actually paid was less than the amount collected by way of freight and transportation charges the difference was appropriated by the appellant and, therefore, the same would be a part of the assessable value.'
The excess freight recovered by the appellant from the customer as compared to the actual freight on account of transportation shall not include in the assessable value for the purpose valuation of excisable goods.
The impugned order is set aside - Appeal allowed.
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2024 (6) TMI 842
Denial of CENVAT Credit - levy of penalty - Clandestine Removal - physical shortage of huge quantity of the raw materials than the actual quantity of recorded stocks - onus to prove - cross-examination of witnesse - admissibility of evidences.
Clandestine Removal - physical shortage of huge quantity of the raw materials than the actual quantity of recorded stocks - HELD THAT:- The reasons for shortage has been explained by the appellant but no verification was conducted by the department to find out the actual true. It is noticed that only one theft event has been detected by the appellant on 02.10.2011 and the same was reported to the local police - In the present matter department merely assumed that the said shortage was due to theft. Further it is also found that there is no other corroborative evidence to establish that the shortage was on account of short-receipt of raw material. In that circumstances, we hold that the investigation was conducted by the Revenue is deficient and incomplete. In that circumstances, the charge of shortage of inputs stands disproved.
CENVAT Credit - HELD THAT:- There is no evidence, that the shortage of inputs are due to diversion of inputs or theft of the inputs or clandestine clearances of inputs. When there is no finding that the inputs on which credit has been taken were clandestinely removed/ diverted what remains is improper accounting of the inputs. For improper accounting the cenvat credit cannot be demanded. In these circumstances, there is no evidence to sustain a finding that this is a case of irregular or incorrect taking or utilisation of credit. In such a situation, no cenvat demand is sustainable under Rule 14 of Cenvat Credit Rules, 2004.
Admissibility of evidences - HELD THAT:- Statements recorded during investigation in the present matter, whose makers are not examination-in-chief before the adjudicating authority, would have to be eschewed from evidence, and it will not be permissible for Ld. Adjudicating Authority to rely on the said evidences. Therefore, none of the said statements were admissible evidence in the present case - it is not found that the impugned order to be sustainable.
The impugned order is set aside - appeal allowed.
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2024 (6) TMI 841
CENVAT Credit - input service - C&F Agent service - denial also on the ground of discrepancy in documents under Rule 9.
CENVAT Credit - input service - C&F Agent service - place of removal - HELD THAT:- In the case of C&F Agent service, it is very much covered under definition of Rule 2(l) of Cenvat Credit Rules, 2004 even, before and after amendment of 11.07.2014. Therefore, the credit during the period involved in the present case cannot be denied on the ground that such service was used beyond the place of removal - credit allowed.
CENVAT Credit - denial also on the ground of discrepancy in documents under Rule 9 - HELD THAT:- As per the claim of the appellant, they have availed Cenvat Credit on the input service distributors’ invoice. They have also given a statement showing such invoices, if this be so than the discrepancy in the debit note will not affect the entitlement of Cenvat Credit on ISD invoices to the appellant. However, it appears that the Adjudicating Authority has not verified the ISD invoices and assumed that Cenvat credit was availed on the debit note.
As regard the discrepancy in the debit note, the same is not relevant at the end of the appellant. If there is any discrepancy it is the jurisdictional Officer of the input service distributor to take necessary action against the head office of the appellant i.e. input service distributor - this availment of Cenvat Credit on ISD invoices and correctness thereof needs to be verified by the Adjudicating Authority.
Appeal allowed in part and part matter on remand.
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2024 (6) TMI 781
Refund claim u/s 11B of the Central Excise Act, 1944 - entire quantity of SKO was cleared from those refineries at ‘nil’ rate of duty in terms of N/N. 4/2006-C.E. dated 01.03.2006, for ultimate sale through Public Distribution System (PDS) - failure to pass the bar of unjust enrichment - time limitation.
Whether the appellant has passed the bar of unjust enrichment or not? - HELD THAT:- The appellant paid 7% duty at the time of clearance, which means that the goods in question have suffered total rate of duty of 21% whereas duty is payable at the rate of 14%. Therefore, the excess duty paid by the appellant is required to be refunded, as instead of charging duty from the customers at the rate of 14%, the appellant charged duty at the rate of 7% at the time of clearance. Thus, in these circumstances, the appellant has passed the bar of unjust enrichment - the appellant has passed the bar of unjust enrichment.
Whether the refund claim(s) filed by the appellant are barred by limitation or not? - HELD THAT:- The facts of the present case are similar to that in the case of M/S. BANSAL BISCUITS PRIVATE LIMITED VERSUS COMMR. OF CENTRAL EXCISE & SERVICE TAX, PATNA [2023 (11) TMI 615 - CESTAT KOLKATA] wherein the duty was paid by utilizing CENVAT Credit account, which was not payable by the assessee and in those set of facts, this Tribunal held that the duty paid, which was not payable, is to be refunded and no time-limit as prescribed under Section 11B of the Central Excise Act would be applicable. Therefore, in this case also, in respect of both the refund claims filed by the appellant, the provisions of Section 11B of the Act are not attracted. Accordingly, the appellant succeeds on limitation.
The impugned order set aside - appeal allowed.
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2024 (6) TMI 762
Denial of CENVAT Credit - fake invoices - appellant have not received the inputs and taken credit only on the invoice - HELD THAT:- In respect of M/s Gujarat Intrux Limited who is similarly placed as the present appellant, a matter was remanded in GUJARAT INTRUX LIMITED; SHRI DHIRAJ DHARAMSHIBHAI PAMBHAR VERSUS C.C.E. & S.T. -RAJKOT [2022 (4) TMI 1615 - CESTAT AHMEDABAD] by passing the following order, where it was held that 'the Adjudicating Authority has rejected the retraction for one or other reason. In this case it is necessary for the adjudicating authority to allow the cross examination which is mandated under Section 9 D of Central Excise Act, 1944. By not allowing the cross examination the Learned Adjudicating Authority has violated the principles of natural justice. '
From the above decision, it can be seen that in the aforesaid decision also M/s Gujarat Intrux Limited has taken the Cenvat credit same as in the case of the present appellant and the goods were shown to have manufactured by M/s Suraj and supplied to the appellant through M/s Neo. In both the cases, the charge of the department is the recipient of goods in the present case the appellant have taken Cenvat credit without receipt of goods.
This Tribunal has remanded the matter for want of cross-examination of Director and Chairman of M/s Neo and M/s Suraj and also of transporter. The same evidences were used in the present case also - this matter also needs to be reconsidered on the same line of the observation made in the above decision.
Appeal allowed by way of remand.
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2024 (6) TMI 761
CENVAT Credit - ISD invoices - input services were not used directly or indirectly or in or in relation to the manufacture of final goods by Paharpur unit - HELD THAT:- It could be seen that upto 31.03.2012, no condition is specified to the effect that credit can be distributed only when the particular unit is using the input services. Therefore, we find that the Department is in error in taking the stand that Cenvat credit can be distributed only for the input services used by Paharpur unit. In terms of the above provisions even if the services were used by other units, still the ISD distributing Head Office could have distributed the said Cenvat credit to the Paharpur Unit till the Rule was amended on 01.04.2012. Therefore, there are no error in the ISD invoices issued by the Mumbai unit based on which the Appellant has taken the Cenvat credit. On this count itself, the confirmed demand for the period June 2005 to 31.03.2012 stands set aside.
Eligibility of Cenvat taken by the Mumbai unit which distributed the Cenvat Credit - HELD THAT:- Admittedly the Cenvat credit on various input services have accrued to the Head Office. They are duly registered as ISD in Mumbai for the Cenvat credit coming to them on account of various input service invoices. For the ISD invoices raised by them towards distribution of such Cenvat credit, they have been filing their ST-3 Returns before their jurisdictional authorities at Mumbai. Therefore, if they have taken the Cenvat credit in respect of any input services which is considered as ineligible, it was for the Mumbai Revenue officials to initiate recovery proceedings against them. The Paharpur unit (the present Appellant) has only taken the credit, so distributed by the Mumbai ISD unit. They have no control over the Cenvat taken by the Mumbai Head Office on various services. It has been time and again held by various Tribunals that the recipient cannot be questioned for the eligibility or otherwise of the Cenvat availing Head Office registered under ISD - the Kolkata authorities had no jurisdiction to question the eligibility of Cenvat taken by the Mumbai unit which distributed the Cenvat Credit.
Several decisions have clearly held that jurisdiction to question the Cenvat availment lies with the officials with whom the ISD Returns are filed for issuing any Show Cause Notice towards eligibility of Cenvat credit. This Bench also in the M/S NALCO WATER INDIA LIMITED VERSUS COMMISSIONER OF CGST & EXCISE, HOWRAH [2024 (3) TMI 751 - CESTAT KOLKATA] has considered the Mahindra & Mahindra case, but held that the ISD Cenvat receiving unit cannot be questioned on the eligibility of input services. Therefore, the present proceedings initiated against the Appellant is without jurisdiction.
For the period from 01.04.2012 to 31.03.2013, the appellants have claimed that they have taken the credit for the Service Tax paid by the Head Office for the services rendered to their Paharpur unit only. Thus the conditions set w.e.f. 01.04.2012 under Rule 7 of the Cenvat Credit Rules also have been fulfilled.
Appeal allowed.
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2024 (6) TMI 760
Valuation of the goods - Inclusion of inspection charges paid to RITES in the assessable value of the dutiable goods - HELD THAT:- It is found that in the appellant’s own case for an earlier period M/S. PASUPATI ISPAT PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, BHUBANESWAR-I, ORISSA [2023 (3) TMI 1499 - CESTAT KOLKATA], this issue came up before this Tribunal, wherein it was observed that 'The reimbursed receipts do not form part of their income and thus this is not an additional consideration. This is also relevant to observe that RITES raised the bills to the Appellant charging Inspection charges as per agreement amongst RITES, the Appellant and the customer. This is variably from the records that the Inspection charges were paid to RITES by the Appellant on behalf of their customers and the same amount was reimbursed by the customers and there is no difference between the amount paid and the reimbursed receipts. Both the amounts are matching.'
As the issue has already been settled by this Tribunal in the appellant’s own case for an earlier period, therefore, following the same decision, the appellant is not liable to pay duty on account of the alleged undervaluation.
The impugned order is set aside - appeal allowed.
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2024 (6) TMI 759
CENVAT Credit - input services - Scientific & technical consultancy services - denial of credit on the ground that since the appellant have carried out the trading of technology, hence, not provided any output service - HELD THAT:- In the present case, the Cenvat Credit on Scientific & technical consultancy services were denied and ordered to be recovered in terms of Rule, 14 on the ground that since the appellant have carried out the trading of technology, hence, not provided any output service. Therefore, they are not eligible for Cenvat Credit on scientific and technical consultancy services.
The very same issue has been considered by this Tribunal in the appellant’s own case UNIMED TECHNOLOGIES LTD VERSUS C.C.E. & S.T. -VADODARA-II [2023 (12) TMI 1324 - CESTAT AHMEDABAD] where it was held that 'it cannot be correct to say that the service provided by the SPIL was not used by the appellant. The revenue’s argument is that the entire service was provided on the date of invoice is totally fallacious and illogical. Thus, we hold that the appellants received and consumed the service while they were participating in the development of technology by supervising and monitoring the same.'
Accordingly, following the Tribunal’s decisions in the appellant’s own case, the appellant are entitled for the Cenvat Credit on scientific and Technical consultancy services. Accordingly, impugned order is set aside - appeal allowed.
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2024 (6) TMI 758
CENVAT Credit - input services - Examination of factual submissions and judicial determinations - HELD THAT:- The issues relating to admissibility of Cenvat credit in respect of input services is no more open to debate, inasmuch as the legal issues governing such issues have been settled finally by the various judgements of the higher judicial forum is follows.
There are judgments of the Hon’ble High Court of Bombay with particular reference to M/S. COCA COLA INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, PUNE-III [2009 (8) TMI 50 - BOMBAY HIGH COURT], Commissioner of Central Excise, Nagpur Vs. Ultra Tech Cement Ltd., [2010 (10) TMI 13 - BOMBAY HIGH COURT] and the judgement of the Hon’ble Supreme Court in the case of State of Karnataka Vs. Shreyas Paper Pvt. Ltd. [2006 (1) TMI 243 - SUPREME COURT] in affirming the view taken by the Hon’ble Karnataka High Court [1999 (9) TMI 932 - KARNATAKA HIGH COURT].
Considering the fact that the Coordinate Division Bench of the Tribunal in its Final order NITIN CASTINGS LTD VERSUS COMMISSIONER OF CENTRAL EXCISE THANE [2023 (6) TMI 1392 - CESTAT MUMBAI] had remanded the case back to the original adjudicating authority to decide the matter afresh upon consideration of the factual submissions made by the appellant and the relevance of judicial determination on each of the input service, it is found that the issues covered in the present case are being same except for different period in the subsequent year, the ends of justice would be met, if the present appeal is also allowed to be decided by the original adjudicating authority, for a decision afresh in de nova proceedings.
There are no substance in the impugned order in denying the Cenvat credit on input services without proper examination in the context of various decisions passed by the Hon’ble High Court of Bombay and Hon’ble Supreme Court. Therefore, the impugned order is set aside and the matter is remanded back to the original adjudicating authority for consideration of the various submissions made by the appellant in the appeal paper book.
Appeal allowed by way of remand.
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2024 (6) TMI 757
Clandestine removal of the zinc oxide - applicability of SION norms in determining the quantity of zinc oxide manufactured from zinc scrap - difference in the calculated figure and the figure of production recorded in the statutory records - HELD THAT:- Undisputedly the appellants are using raw materials viz., zinc dross, skimming, zinc ingots and other zinc scraps for manufacture of zinc oxide. The department applying the SION norms has calculated the quantum of zinc oxide ought to have been manufactured and the excess quantity alleged to have been clandestinely removed. Such methodology has not been accepted by the Tribunal in similar circumstances in the case of M/S MITTAL PIGMENT PVT. LTD. VERSUS CCE, JAIPUR [2016 (9) TMI 1016 - CESTAT NEW DELHI] case after analyzing the facts, it has observed that 'There is nothing on record from the Revenue side to come to a reasonable conclusion to say that there has been preponderance of probability of such suppressed production on the part of the appellant.'
Since the impugned order itself is set aside on merits, there is no question of imposing personal penalty on Sri M. Jayaram, Director; hence, Revenue’s appeal is dismissed.
Appeal disposed off.
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2024 (6) TMI 756
Liability of Central Excise Duty on notional basis instead of the actual figures - denial of Cenvat credit on photocopies of invoices - disallowance of cenvat credit on inputs used in the manufacture of goods lying in stock - CENVAT credit on sugar cess.
Whether the central excise duty liability has been incorrectly demanded on notional basis instead of the actual figures? - HELD THAT:- It is submitted that the actual figures of production and clearances for the relevant period was available with the adjudicating authority, as the appellant had submitted the said data during the said adjudication proceedings. It has also been submitted that the CA Certificate to certify the actual production figures had also been submitted to the adjudicating authority - it is found that in the impugned order that the clearances for the period August’ 07 to March’ 2008 has indeed been calculated as a proportion of the total production figures - this methodology adopted by the adjudicating authority to calculate the clearances during this period when the actual data of clearances was available with the Commissioner cannot be appreciated - CA Certificate also examined wherein the monthly production & clearances figures for the period 01.08.2007 to 30.06.2008 has been certified by the Chartered Accountant. The department had not led any evidence to hold that this CA Certificate was incorrect or fraudulent - the Commissioner has erred in determining the duty resulting of excess duty liability - the total duty determined is liable to be reduced by this amount.
Whether the adjudicating authority was correct in denying Cenvat credit on photocopies of invoices? - HELD THAT:- Rule 9 of Cenvat Credit Rules, 2004 specifies the documents and records for the purpose of availment of credit. In some cases, it is noted that the appellant only had photocopies of the purchase invoices on which credit was denied. However, the receipt and utilization of inputs for the specified purpose has not been disputed nor has the department led any evidence to establish that the input was not received or was not duty paid - In view of the same, the Commissioner had erred in disallowing this part of the cenvat credit.
Whether the adjudicating authority was correct in disallowing cenvat credit on inputs used in the manufacture of goods lying in stock? - HELD THAT:- The reasoning given by the adjudicating authority cannot be accepted. It is on record that the appellant had opening stock of 8389 quintals of sugar as on 01.08.2007. Subsequently, 8389 quintals of sugar was used in the manufacture of the final products - The department has denied the credit by not giving any sound reasoning for the denial. There is nothing on record to establish that the CA certificate produced by the appellant is fraudulent or incorrect - the adjudicating authority has erred in ignoring the cogent evidences led before it - the Tribunal in several decisions has held that once the appellant has submitted sufficient evidence along with the CA certificate to substantiate their claim, the onus shifts to the Revenue to disprove the same - credit wrongly denied.
Whether the credit on sugar cess has been correctly allowed? - HELD THAT:- The coordinate bench of the Tribunal in similar facts and circumstances has allowed the Cenvat credit on sugar cess in the case of M/S. DIAMOND BEVERAGES PVT. LTD. VERSUS COMMISSIONER OF CGST & CENTRAL EXCISE, KOLKATA SOUTH [2019 (8) TMI 1517 - CESTAT KOLKATA] relying upon the decision in M/S. BENGAL BEVERAGES PRIVATE LIMITED VERSUS COMMISSIONER OF CGST & CX, HOWRAH COMMISSIONERATE (VICE-VERSA) [2022 (2) TMI 1118 - CESTAT KOLKATA] - the Commissioner was correct in allowing the Cenvat credit of Sugar Cess to the appellant.
Appeal of assessee allowed.
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2024 (6) TMI 755
Levy of Central Excise duty - physician’s samples in terms of section 4A of the Central Excise Act, 1944 i.e. MRP less abatement - HELD THAT:- The said issue has been examined by this Tribunal in the case of M/S KLAR SEHEN PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA [2023 (8) TMI 742 - CESTAT KOLKATA], wherein this Tribunal has observed 'We hold that the valuation of physician samples is to be done as per under Rule 4 of the valuation rules, 2000 based on the pro rate value of medicaments sold in the trade and valued under Section 4A.'
The appellants are not liable to pay Central Excise duty on physician samples in terms of section 4A of the Central Excise Act, 1944. Therefore, the proceedings against the appellant are not sustainable.
The impugned order set aside - appeal allowed.
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2024 (6) TMI 754
Levy of personal penalty u/r 26(1) of the Central Excise Rules, 2002 - Clandestine removal - non-accounting and clearance of the goods without payment of duty - non-maintenance of proper accounts relating to receipt and consumption of raw materials such as iron ore, coal, etc., during the relevant period - HELD THAT:- The allegation was levelled against the company on the basis of input output norms and other factors by calculating the duty on theoretical basis. Besides this, personal penalty imposed on the appellant is solely on the ground that he was the Director of the company and in-charge of the day-to-day affairs in running the company.
This Tribunal in the case of M/S MITTAL PIGMENT PVT. LTD. VERSUS CCE, JAIPUR [2016 (9) TMI 1016 - CESTAT NEW DELHI] held that in the absence of sufficient evidence, imposition of penalty on the Director merely being in-charge of the company cannot be sustained. Also, it is found that in the show-cause notice, there has been no proposal nor any allegation indicating that the goods which were cleared are liable for confiscation.
Thus, imposition of personal penalty under Rule 26(1) on the appellant is unsustainable in law and liable to be set aside.
The appeal is allowed.
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2024 (6) TMI 682
Delay in adjudicating show cause notices (SCNs) - whether non-communication of transfer of the show cause notices to call book is fatal to the case of respondents? - HELD THAT:- Admittedly petitioner’s case was kept in abeyance in view of pending SLP in the Apex Court and it is accepted that the issue therein covered the issue in petitioner's case as well. It would therefore serve no purpose in adjudicating the show cause notice.
Hence other suggestion not accepted that respondents should be permitted to proceed with the adjudication of show cause notices. It could be nothing but an exercise in futility.
The two show cause notices dated 22nd October 2010 and 21st October 2011 are hereby quashed and set aside.
Petition disposed off.
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2024 (6) TMI 681
CENVAT Credit of service tax paid - Input service - exclusion of phrase “setting up” of the factory from amended definition - Consulting Engineer Service - Plant Fabrication & Erection & Commissioning service - Supply of Tangible Goods service - HELD THAT:- The definition of input service, prior to its amendment w.e.f. 01.04.2011 provided the phrase “used in relation to setting up, modernization, renovation or repairs of a factory” in the inclusive part contained therein. The said definition was amended vide Notification No.3/2011 dated 01.03.2011 (w.e.f. 01.04.2011). The effect of such amendment was that the phrase “setting up of the factory” was replaced with the phrase “used in relation to modernization, renovation or repairs of a factory” - The excluded category of services provided under Rule 2(l) ibid interalia, includes “service portion in the execution of the works contract and construction services insofar as they are used for (a) construction or execution of works contract of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structures for support of capital goods”.
On consideration of the disputed services used/utilised by the appellants, it is found that such services were not falling under the exclusion clause provided under Rule 2(l)(A) ibid. Since, the disputed services were not specifically falling under the excluded category and were used in relation to manufacture of the final products, denial of Cenvat Credit of service tax paid on those services cannot be sustained - the issue arising out of the present dispute has been adequately dealt with by the Co-ordinate Bench of This Tribunal in the case of PEPSICO INDIA HOLDINGS (PVT.) LTD. VERSUS COMMISSIONER OF CENTRAL TAX, TIRUPATI [2021 (7) TMI 1094 - CESTAT HYDERABAD].
There are no merits in the impugned order, insofar as it has denied the Cenvat Credit and confirmed the adjudged demands on the appellants - the impugned order is et aside - appeal allowed.
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2024 (6) TMI 680
Classification of goods - Cheeslings - to be classified under Tariff Item 21069099 of the first schedule to the Central Excise Tariff Act, 1985 or not - benefit of Sr No.10 of N/N. 2/2011-C.E. dated 01.03.2011 as amended - HELD THAT:- The issue with regard to availment of the benefit of exemption Notification No. 3/2006-C.E. dated 01.03.2006 is no more open for any debate, in view of the final Order passed by this Tribunal in the case of the appellants themselves, PARLE PRODUCTS PVT. LTD. VERSUS CCE, MUMBAI-IV [2017 (10) TMI 1182 - CESTAT MUMBAI]. In the said order, the Tribunal has held that Cheeslings though are not fried items, but since those were sold as “Namkeen”, the benefit of Sl. No. 29 in the Notification No.3/2006-C.E. dated 01.03.2006 should be available to the appellant.
There are no merits in the impugned order, insofar as it has confirmed the adjudged demands on the appellant - appeal allowed in favor of appellant.
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2024 (6) TMI 679
CENVAT Credit - input services or not - phrase “setting up” of the factory was specifically excluded in amended definition of input services or not - HELD THAT:- Since, the disputed services were not specifically falling under the excluded category and were used in relation to manufacture of the final products, in our considered view, denial of Cenvat Credit of service tax paid on those services cannot be sustained. We find that the issue arising out of the present dispute has been adequately dealt with by the Co-ordinate Bench of This Tribunal in the case of PEPSICO INDIA HOLDINGS (PVT.) LTD. VERSUS COMMISSIONER OF CENTRAL TAX, TIRUPATI [2021 (7) TMI 1094 - CESTAT HYDERABAD] where it was held that 'Without setting up the factory, there cannot be any manufacture. Services used in setting up the factory are, therefore, unambiguously covered as ‘input services’ under Rule 2 (l) (ii) of the CENVAT Credit Rules, 2004 as they stood during the relevant period (post 1.4.2011). The mere fact that it is again not mentioned in the inclusive part of the definition makes no difference. Once it is covered in the main part of the definition of input service, unless it is specifically excluded under the exclusion part of the definition, the appellant is entitled to CENVAT credit on the input services used. '.
There are no merits in the impugned order, insofar as it has denied the Cenvat Credit and confirmed the adjudged demands on the appellants - the impugned order is set aside - appeal allowed in favor of appellant.
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9911796707
