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Central Excise - Case Laws
Showing 661 to 680 of 81330 Records
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2024 (6) TMI 620
Penalty u/r 209 of the Central Excise Rules, 1944 - failure to provide opportunity for cross-examination u/s Section 9D of the Central Excise Act, 1944 - violation of principles of natural justice - HELD THAT:- It is found from the impugned Order-In-Order under consideration has been passed wherein the appellant has not participated in the process of adjudication. There are no written submission in the appeal papers nor any request for crossexamination of the person whose statements have been recorded by the appellant.
The appellant have never made any request of cross-objection of examination in chief of any of the witnesses - the fact is also noted that no retraction of statement made by him has been found in the appeal papers - the appellant have consciously avoided participating in the adjudication process and now they want that the matter to be decided only on the technical ground that cross-examination was not allowed or permitted under Section 9D of the Central Excise Act, 1944.
Appeal dismissed.
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2024 (6) TMI 619
Classification of goods - polyester waste - to be classified under Chapter heading 3907 or under Chapter heading 5505? - differential cenvat credit on clearances of waste raw materials - HELD THAT:- It is observed that all type of waste purchased by the respondent were generated by the suppliers during production of textiles fibers, textiles yarns. The suppliers have classified such waste under Tariff heading 55051090 and paid excise duty accordingly. However in the present matter revenue try to re-classify the product under different chapter heading. To our mind this proposition of the law is incorrect. The assessee/respondent purchased the disputed raw materials from their suppliers and suppliers had classified their final products as per the classification indicated on the invoices. There is no dispute at the supplier end as regards the classification of the products purchased by the respondent. It is settled law that once the classification is not challenged at the end of the seller, the same goods cannot be re-classified at the recipient end.
Since respondent have not availed the exemption notification No. 4/2006-CE question of application of rule 6 does not apply. Moreover in respect of the goods respondent have admittedly paid the excise duty, once the excise duty has been paid the Cenvat cannot be denied.
In the present case, serial No. 78 of Notification No. 4/2006-CE was not absolute exemption and have conditions. It cannot be said that serial No. 78 of Notification No. 4/2006-CE provides absolute exemption. In such circumstance, excise duty was therefore correctly paid by the respondent and Cenvat Credit of the inputs was also admissible. In our view Excise Duty paid cannot be appropriated under Section 11D of the Act.
Demand of differential Cenvat Credit of Rs 3,12,27,981/- - HELD THAT:- Sub-rule (5)of Rule 3 of Cenvat Credit Rules 2004 applies only when the inputs which are brought into the factory is now to be removed in the same condition i.e ‘As Such’ in their original condition. In the instant case, it is on record that the input is not removed, ‘as such’ from the respondent premises but after the various process the resultant goods obtained in form of ‘residual waste’ were cleared and therefore the said Rule has no application to the facts of this case - the revenue has not produced any corroborative documentary evidences to prove that the respondent had cleared the waste raw materials as such. Therefore the demand of differential Cenvat Credit is legally not sustainable and demand in the present case was rightly dropped by the adjudicating authority.
Demand of Rs. 1,07,88,395/- - it is the revenue’s case that the respondent’s general manager during the recording of statement on 12.12.2014 could not explain or clarify who were the persons to whom ‘residual waste’ was sold under the few of invoices at Rs. 1. per kg., and he also agreed that as per RTO reports etc., the vehicle number shown in the sale invoice were not for vehicles capable of being used for transportation - HELD THAT:- In the present matter revenue has not produced any evidence to show that the respondent had cleared Polyester Staple Fibre in guise of residual waste. As Tribunal in the case of Kothari Pouches Ltd. v. CCE, New Delhi [2000 (9) TMI 177 - CEGAT, NEW DELHI] held that confirmation of demand entirely on the basis of documents of the transporters, without any independent corroborating evidence cannot be upheld.
It is well settled law that charges of clandestine removal are serious charges and are required to be established by production of positive and tangible evidence. The same cannot be upheld on the basis of surmises and conjecture. There has to be some cogent evidences so as to prove such charges and the same cannot be simplicitor based upon third parties documents and the statement of transporters - In such circumstance and lack of evidences, since the Commissioner has recorded the specific findings that clandestine removal of goods has not been proved by the Department with any tangible evidence and dropped the demand in favour of the respondent, it is not found appropriate to interfere with the said findings in the impugned order at this juncture.
The department’s appeals are found devoid of merit. Accordingly, the impugned order is upheld - appeals filed by the revenue are dismissed.
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2024 (6) TMI 618
Excisability - ‘waste and scrap’ arising during the course of manufacture of ‘insulated electrical wires and cables’ - HELD THAT:- In DSCL Sugars Ltd [2015 (10) TMI 566 - SUPREME COURT], the Hon’ble Supreme Court had before it the issue of dutiability of ‘bagasse’ emerging during production of sugar and, though earlier held as non-dutiable in Commissioner of Central Excise, Allahabad v. Balrampur Chini Mills Ltd [2010 (7) TMI 974 - SC ORDER], for the period after insertion of Explanation it was held that 'the word “manufacture” shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production of manufacture on his own account.'
The ‘waste and scrap’ arising during the process of manufacture of ‘insulated electrical wires and cables’ are not liable to duties of excise combined with determination that the insertion does not alter the fundamental step of manufacture, the impugned orders lack merit - appeal allowed.
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2024 (6) TMI 617
Exempt goods or not - whether the excisable goods, otherwise liable to duty of excise, when cleared by the Appellant to their principal manufacturer are exempted goods in terms of Notification 214/86-CE or otherwise? - HELD THAT:- While a plain reading of the Notification 214/86-CE would show that the said notification has been issued under Section 5A(1) of the Central Excise & Salt Act, 1944 and therefore, it appears to be an exemption notification, as argued by the learned AR or whether this exemption notification is primarily to regulate the movement of goods from the principal manufacturer to the job worker and its return to the principal manufacturer without payment of duty subject to compliance of the conditions stipulated therein.
In the case of Precision Metals [2016 (4) TMI 187 - CESTAT MUMBAI], wherein the identical issue was before the Tribunal, the Coordinate Bench, after examining the legal provision as also various case laws, including Sterlite Industries (I) Ltd [2004 (12) TMI 108 - CESTAT, MUMBAI], came to the conclusion that the demand raised for an amount equivalent to 10% of value of the job work goods in terms of Rule 6(3)(b) of CCR is not sustainable.
Whether the Appellants are job worker and not manufacturer and therefore, on this count itself, as alleged in the SCN, they are not entitled to take credit? - HELD THAT:- It has not been disputed by Revenue that they were not eligible for Notification 214/86-CE or there has been any non-compliance of stipulated conditions. Thus, even though the issue of Notification 214/86-CE, being an exemption notification or otherwise was never alleged in the SCN though relied upon by Appellant and adjudicated upon by the Original Authority.
Whether availment of Notification 214/86-CE makes the goods “exempted goods” so as to attract Rule 6 of CCR, 2004? - HELD THAT:- The clearance of goods without payment of duty under the provisions of Notification 214/86-CE would not make the said goods “exempted goods”, so as to attract the provisions of Rule 6 of CCR, is squarely applicable. Since they are not to be treated as exempted goods, therefore, the Appellants have rightly taken the credit in respect of input services.
Therefore, the demand made by the Department is not sustainable and the Impugned Orders are required to be set aside - Appeal allowed.
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2024 (6) TMI 616
Levy of Central Excise Duty - transportation of goods from the place of removal till the customer’s place - HELD THAT:- The said issue has been examined by this Tribunal in the appellant’s own case M/S. HINDALCO INDUSTRIES LTD. VERSUS COMMR. OF CENTRAL EXCISE, KOLKATA-II [2023 (11) TMI 1253 - CESTAT KOLKATA], wherein this Tribunal has observed 'When the goods were handed over to the transporter, the respondent had no right to the disposal of the goods nor did it reserve such rights inasmuch as title had already passed to its customer.'
As the issue has already been settled in the appellant’s own case when the goods are cleared at factory gate, the transportation charges recovered from the customers for transportation of goods to the customer’s place is not includible in the assessable value of the goods. Therefore, the appellant is not liable to pay the duty on the transportation charges.
The appellant is not liable to pay duty. As no duty is payable by the appellant, no penalty is imposed against the appellant.
The impugned order is set aside - appeal allowed.
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2024 (6) TMI 615
Delayed availment of cenvat credit on capital goods by the appellant - subsequent recovery of an alleged excess refund by the department - HELD THAT:- There is no truth in the allegation of the department that the appellant has been sanctioned excess refund in the month of April 2012 because they have not availed the balance 50% of the capital goods credit in the month of April 2012 itself.
The delayed availment of cenvat credit of the balance 50% excise duty suffered on capital goods in the month May 2012 instead of April 2012 in this case, did not affect the overall entitlement of refund for the relevant financial year. Accordingly, the recovery of excess refund of Rs.3,52,093 vide the impugned order is not sustainable and hence the same is set aside.
Appeal allowed.
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2024 (6) TMI 614
CENVAT Credit - denial on the ground that the appellant (Howrah unit) has never dispatched their finished goods to the Administrative unit situated at V. V. Nagar, Gujarat and the input service distributed to the appellant by the administrative office has no direct or indirect relation with final product manufacture and cleared by the appellant - time limitation - suppression of facts or not.
HELD THAT:- It is observed that the disputed Cenvat credit in this case has been availed by the appellant during the period March 2005 to March 2009. During the relevant period, the distribution of Cenvat credit on Pro-Rata basis was not there in the Cenvat Credit Rules.
A conjoint reading of Rule 7 existed prior to issue of Notification 18/2012 CE(NT) and after issue of the notification would clearly reveal that there was no condition in force to distribute the Cenvat based on usage of input service or turnover. The restrictions for proportionate distribution was introduced subsequently vide Notification No. 18/2012-C.E. (N.T.). Thus, it is observed that during the relevant period there was no requirement of establishing one–to–one correlation. Accordingly, the denial of Cenvat credit in the impugned order is not sustainable.
Time Limitation - HELD THAT:- In the impugned order, the demand has been confirmed for the period March 2005 to March 2009. The SCN in this case was issued 24.02.2010. There is no evidence brought on record to substantiate the allegation that suppression of fact with an intention to evade payment of tax exists in this case. Thus, the extended period cannot be invoked to deny the credit in this case - the impugned order confirming the demand by invoking extended period of limitation is liable to be set aside.
The impugned order is set aside - appeal allowed.
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2024 (6) TMI 613
Eligibility of abatement under N/N. 01/2006-ST dated 01.03.2006 - works executed involving supply of materials as well as rendition of services is sustainable or not - HELD THAT:- From the facts, it is brought out that the appellant has rendered services which are composite in nature involving both supply of materials as well as rendition of services.
The Hon’ble Apex Court in the case of Larsen and Toubro Limited and Another v. State of Karnataka and Another [2013 (9) TMI 853 - SUPREME COURT] has held that the contracts involving both supply of materials as well as rendition of services can be classified only under WCS.
The Tribunal in the case Real Value Promoters Pvt. Ltd. [2018 (9) TMI 1149 - CESTAT CHENNAI] has followed the decision in the case of Larsen and Toubro Limited and Another to hold that the demand raised under CICS, CCS, RCS for the period prior to 01.07.2012 cannot sustain when the works executed are in the nature of composite contracts. In the present case, it is brought out and established that the works are composite in nature.
The demand raised denying the benefit of abatement cannot sustain. The impugned order is set aside - Appeal allowed.
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2024 (6) TMI 612
Reversal of wrongly availed CENVAT credit - GTA services availed for outward transportation of goods on FOR destination basis from factory gate/depot to the premises of the customers under rule 2(l) of the 2004 Credit Rules - Place of removal - HELD THAT:- This judgment of the Supreme Court in Ultratech Cement [2018 (2) TMI 117 - SUPREME COURT], therefore, needs to be considered first. The Supreme Court examined the admissibility or otherwise of the CENVAT credit availed on service tax paid for GTA service for transport of goods from the ‘place of removal’ to buyer’s premises. In this connection, the Supreme Court referred to the definition of ‘input service’ in rule 2(l) of the 2004 Rules as it stood prior to its amendment on 01.03.2008 and noted that in view of the use of the expression ‘from the place of removal’, the service used by the manufacturer from the place of removal to the warehouse or customer’s place would be exigible for CENVAT credit, but in view of the amendment made in the definition of ‘input service’ from 01.03.2008 replacing the word ‘from’ by the word ‘upto’, it would only be ‘upto the place of removal’ that service could be treated as ‘input service’.
In Roofit Industries [2015 (4) TMI 857 - SUPREME COURT], the Supreme Court noticed that the ‘place of removal’ becomes a determinative factor for the purpose of valuation and it has to be seen at what point of time sale is effected, namely whether it is on the factory gate or a later point of time when the delivery of goods is effected to the buyer at the premises of the buyer. The Supreme Court observed that the charges which are to be added have to be upto the stage of transfer of the ownership in as much as once the ownership in goods stands transferred to the buyer, any expenditure incurred, thereafter, has to be on the account of the buyer and cannot be a component which would be included while ascertaining the valuation of goods.
The Division Bench of the Tribunal in Hindustan Zinc [2024 (4) TMI 817 - CESTAT NEW DELHI] held that Hindustan Zinc would be entitled to avail CENVAT credit of service tax paid on the GTA services availed for outward transportation of goods on FOR destination basis from the factory gate/depot to the premises of the customers under rule 2(l) of the 2004 Credit Rules.
The impugned order passed by the Commissioner, therefore, cannot be sustained and set aside - Appeal allowed.
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2024 (6) TMI 611
Refund of excise duty and interest - lack of proper duty exemption certificates - HELD THAT:- It is an admitted fact that the appellant had manufactured the goods and supplied to institutions eligible for exemption. These institutions are of stature and cannot be expected to obtain this goods without following the requirement as laid down by the Notification. Even if there is an omission on part of the appellant to produce proper certificate as per the Notification, Considering the same as curable defect, an opportunity should have been extended them to produce the same before rejecting the refund claim.
Considering the above facts and also considering the condition of the Notification and the judgment of the Hon'ble Supreme Court in the matter of COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS. [2018 (7) TMI 1826 - SUPREME COURT], it is a fit case to be remanded to adjudication authority by extending an opportunity for the Appellant to produce certificate as per the notification.
Appeal is remanded to adjudicating authority for de-novo adjudication - Appeal allowed by way of remand.
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2024 (6) TMI 581
CENVAT credit availed on capital goods procured in 2007-08 and 2008-09 but installed in 2011 - HELD THAT:- A conjoint reading of the provisions of Rule 2 (a) and Rule 4 of the Rules of 2004 go to show that while Rule 2 (a) lays down the definition of “capital goods”, the conditions for providing CENVAT credit under the Rules are laid down under Rule 4. A plain reading of Rule (2) (b) of Rule 4 shows that balance of CENVAT credit may be availed in any financial year subsequent to the financial year in which the capital goods were received in the factory of the manufacturer. Rule (2) (a) of Rule 4 of the Rules of 2004 provides that CENVAT credit in respect of capital goods received in a factory or in the premises of the provider at any point of time in a given financial year shall be taken only for an amount not exceeding 50% of the duty paid on such capital goods in the same financial year.
It is no doubt correct that as per Rule 2 (a) of the Rules of 2004 it would be open for the assessee to avail upto 50% of CENVAT credit in the financial year when the capital goods were procured. However, Rule 2 (a) of the Rules does not make it mandatory for the assessee to lodge a claim for Cenvat Credit only in the year of procurement of the machinery - in the facts and circumstances of the present case, there is no cogent basis for this Court to conclude that the assessee had illegally availed CENVAT credit for procurement of the capital goods pertaining to the years 2010-11 and 2011-12. Consequently, the order for recovery of the amount of CENVAT credit as affirmed by the learned Tribunal is held to be unsustainable in the eyes of law.
The Commissioner (Appeals), Customs, Central Excise and Service Tax, Guwahati, was not correct in passing the order dated 25/11/2014 particularly in so far as allowing the demand for recovery of Rs. 15,95,332/- as CENVAT credit availed by the appellant on the capital goods is concerned.
Appeal allowed.
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2024 (6) TMI 580
Rectification of order by the CESTAT - Rejection of application filed u/s 35C (2) of the Central Excise Act, 1944 - discount received by bank from automobile dealers can be treated as a consideration for service or not - HELD THAT:- The decision in case of IndusInd Bank Ltd. [2019 (2) TMI 26 - CESTAT CHENNAI] was rendered even without taking note of any of the decisions rendered earlier by the benches of co-equal strength and such a decision cannot be but a decision rendered per incuriam. What is quite glaring is that the Tribunal has not bothered to list which are those matters prior to IndusInd Bank Ltd., where a contrary view has been taken and which are those matters which have not been considered in the IndusInd Bank Ltd.
It is nothing but a bald observation made without details. Apart from mere assertion, there is no mention in the impugned order of any decision of the Appellate Tribunal, which has taken a contrary view.
The impugned order passed by the Tribunal on 5th December 2019 has to be quashed and set aside. The matter is remanded to the Tribunal for denovo consideration - application disposed off.
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2024 (6) TMI 579
Suo moto credit in the CENVAT Credit account - benefit given under N/N. 01/2011-C.E. - HELD THAT:- It is a fact on record that the respondent had cleared goods to the Indian Railways as well as private companies and during the period from April 2012 to June 2012, the respondent utilized the CENVAT Credit for payment of duty at the rate of 6% for the clearances to Indian Railways as well as private companies. Later on, upon realization that the respondent is entitled to the benefit of Notification No. 01/2011-C.E. dated 01.03.2011 wherein duty is payable at the rate of 2% in cash, the respondent paid the same along with interest. In these circumstances, the duty paid during the period from April 2012 to June 2012 for clearances to the Indian Railways by utilizing CENVAT Credit is eligible as CENVAT Credit for the respondent.
The case of the Revenue is that the respondent is not entitled to avail CENVAT Credit suo moto, but are required to file refund claims. The said issue has been settled by this Tribunal in the case of M/S. CIMMCO LIMITED VERSUS COMMISSIONER CGST & CENTRAL EXCISE ALWAR (VICE-VERSA) [2019 (7) TMI 1606 - CESTAT NEW DELHI] wherein it was observed 'The fact that the duty which was in the first instance was paid from accumulated Cenvat credit have later been paid from cash by debiting through PLA account. It is only adjusted as the duty on the same goods cannot be paid twice and as the required amount of duty on the wagons cleared was on payment from PLA.. They were certainly entitled for taking the cenvat credit which was debited in the first instance.'
The respondent has correctly taken suo moto credit of the duty paid by utilizing CENVAT Credit account, which has been ultimately paid, in cash, along with interest - there are no infirmity in the impugned order and hence, the same is upheld - appeal of Revenue dismissed.
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2024 (6) TMI 578
Levy of penalty u/s 11AC of the Central Excise Act, 1944 - duty paid before issuance of SCN - existence of mens rea or not - fatty acid / waste - by-product - HELD THAT:- It is observed that immediately on pointing out the short payment of duty, the appellant have voluntarily paid the duty along with interest, before issue of the Show Cause Notice. Thus, the provisions of sub-section 2B of Section 11A is applicable in this case. It is also observed that even when the appellant was not paying duty on the waste fatty acid, they have filed E.R.-1 returns regularly intimating the duty payment details. Thus, there are no suppression of fact with intention to evade payment of duty exists in this case. Accordingly, the penalty under Section 11AC is not imposable in this case and hence the penalty imposed on the appellant under Section 11AC of the Central Excise Act, 1944 is set aside.
Quantum of duty liability - HELD THAT:- There is a difference between the duty liability determined by the appellant and the duty liability calculated by the Department - even though the appellant accepted the duty liability, the ld. adjudicating authority contended that there was a short payment of Rs.17,770/-. However, the appellant insists that as per their calculation, they have rightly paid the differential duty and there is no short payment.
If the adjudicating authority finds that there is a short-payment of duty by the appellant, then the appellant should pay the differential duty along with interest. Since there is no suppression of fact involved with intention to evade payment of duty exist in the present case, no penalty is imposable on the appellant even if there is a differential duty payable by the appellant over and above the amount of duty already paid by them. Accordingly, the matter is remanded to the adjudicating authority only for the limited purpose of quantification of the differential duty liability, if any, payable by the appellant, along with interest.
Petition allowed by way of remand.
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2024 (6) TMI 577
Dutiability of 'molasses' used in the manufacture of non-excisable goods - captive consumption - negation of N/N. 67/95-CE dated 16th March 1995 on goods manufactured - wrongful availment of CENVAT Credit - HELD THAT:- The impugned notification is intended to facilitate ‘captive consumption’ which, particularly in a continuous integrated manufacturing process, would have involved assessment to duty of central excise at several stages with its own controversies over rate of duty and value that are not exactly not superfluous as the chain of value addition ensures that duty is, in any case, charged on the final value of the goods from the factory of production. Furthermore, the availability of credit of duties paid at each stage neutralizes intermediate assessment including ascertainment of classification and value.
Spirits are denatured to render unfit for human consumption; levy of commodity taxation in the constitutional scheme excludes the jurisdiction of the Union on spirits intended for human consumption. Central Excise law is this applicable to all, and any spirit, that is not intended for human consumption. Denaturing is only the mark of that intention as it does not alter the product for further use except in human consumption. Therefore, the intermediate product that emerges, and to the extent that it is not intended for human consumption, is not marketable as such and all the indicators of ‘goods’ adheres to it upon denaturing. There is no dispute that denatured spirits are manufactured, are excisable and are not exempt. Consequently, the ‘molasses’ that have been deployed captively for the purpose are exempted from duty.
The order of Commissioner of Central Excise is set aside to allow appeal of assessee.
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2024 (6) TMI 576
Recovery of CENVAT Credit with interest and penalties - input service - garden maintenance service - catering service - housekeeping service - input service credit distribution - HELD THAT:- If the claim of the appellant that it is the ‘transformer division’ that was billed for the impugned services is correct, the proceeding acquire a different complexion; the credit would have been taken by the proper entity. Furthermore, the case made out against the appellant is that the they could not have taken the entire credit pertaining to common input service to the ‘transformer division’ which would be a plausible proposition if the credit was to be distributed. Such contingency would not arise of the service was procured by the ‘transformer division’ and not by an office of the appellant-company. The claim of the appellant has not been controverted in the impugned order. The appellant, too, has not evinced any documents in support of the claim.
Determination of this claim is crucial as it has a bearing on the process by which credit of ‘input service’ could be distributed. Only then would it be possible to ascertain if the failure to obtain registration as ‘input service distributor’ did impact distribution of credit.
The impugned order is set aside to ascertain the correctness of the claim that bills were raised on a department of the ‘transformer division’ and, if not, to determine the correctness of the contention that procedural irregularity would not stand in the way of taking the credit entirely as the rule, then in existence, allowed.
Appeal allowed by way of remand.
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2024 (6) TMI 498
Refund of rebate amount with interest u/s 11BB of the Central Excise Act, 1944 - Applicability of Section 142(3) of the CGST Act, 2017 - HELD THAT:- Sub-Section (3) of Section 142 of the Act very clearly says “any amount eventually accruing shall be paid in cash”. In the circumstances, it is opined that respondents ought to have directed the sanctioning authority to refund the amount of duty refundable to petitioner in cash instead of credit in CENVAT account, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944.
The amount shall be paid together with accumulated interest in accordance with law within four weeks of this order being uploaded.
Petition disposed off.
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2024 (6) TMI 497
Maintainability of petition - availability of alternative remedy - Admissibility of Cenvat Credit on Service Tax paid on outward transportation.
Maintainability of petition - HELD THAT:- The writ petition is liable to be dismissed, as the petitioner has an alternate remedy under Section 35(A) of the Central Excise Act, 1944 before the Commissioner of Central Excise (Appeals). The appellate remedy prescribed under the Act cannot be allowed to be circumvented, merely because the petitioner is of the view that the petitioner may have a case on merits.
The fact that the petitioner is required to pre-deposit the amounts before the appeal is entertained under Section 35(A) of the Central Excise Act, 1944 is also of no avail. Further, only 10% of the disputed tax is to be paid by the petitioner for filing an appeal before the first appellate Authority.
The Writ Petition is liable to be dismissed with liberty to the petitioner to file statutory appeal under Section 35(A) of the Central Excise Act, 1944 within a period of 30 days from the date of receipt of a copy of this order. If such an appeal is filed within the time stipulated by this Court, the Appellate Commissioner shall entertain the appeal and dispose of the same on merits and in accordance with law.
Petition dismissed.
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2024 (6) TMI 496
Condonation of delay of 891 days in filing the Civil Miscellaneous Petition - sufficient cause for delay or not - HELD THAT:- There is no dispute about the fact that generally the lis is not to be rejected on the technical ground of limitation but certainly if the filing of appeal suffers from inordinate delay, then the duty of the Court to consider the application to condone the delay before entering into the merit of the lis - It requires to refer herein that the Law of limitation is enshrined in the legal maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
It is settled position of Law that when a litigant does not act with bona fide motive and at the same time, due to inaction and laches on its part, the period of limitation for filing the appeal expires, such lack of bona fide and gross inaction and negligence are the vital factors which should be taken into consideration while considering the question of condonation of delay.
The Hon’ble Apex Court in Ramlal, Motilal and Chhotelal Vrs. Rewa Coalfields Ltd. [1961 (5) TMI 54 - SUPREME COURT] has held that merely because sufficient cause has been made out in the facts of the given case, there is no right to the appellant to have delay condoned.
Thus, the expression ‘sufficient cause’ has been dealt with which means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted deliberately” or “remained inactive”.
This Court, after taking into consideration the ratio laid by the Hon’ble Apex Court as also the explanation furnished in the delay condonation application, is of the view that no sufficient cause has been shown to condone inordinate delay of 891 days in filing the appeal.
The COD application dismissed.
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2024 (6) TMI 495
Levy of Excise duty - manufacture and clearance of Fertilisers, namely, Di-Ammonium Phosphates (DAP), Nitrogen Phosphorus and Potassium (NPK) - Appellant has not utilized the CENVAT Credit on common input services under Rule 6(5) of the CENVAT Credit Rules, 2004 at the time of clearances of such fertilisers - alleged contravention of N/N. 1/2011-CE dated 01.03.2011 - HELD THAT:- Rule 6(5) of the CCR is a special provision allowing CENVAT credit on certain specified services such as maintenance or repair service, transport of goods by road service, security service etc. It has an overriding effect over the sub-rules (1), (2) and (3) of Rule 6 of CENVAT Credit Rules, 2004. The only limitation prescribed in the said sub-rule (5) is that the specific services should not be exclusively used in or in relation to the manufacture of the exempted goods.
In the present case, it is observed that the appellant has utilized the said credit availed on the specified services only for payment of duty on other dutiable products such as Phospho Gypsum, Sulphuric Acid and Phosphoric Acid, which are removed by the Appellant on payment of Central excise duty at normal rate.
The restriction mentioned in Rule 6(5) of the CENVAT Credit Rules, 2004 is not applicable to the Appellant. Accordingly, the availment of CENVAT CREDIT of input services as provided under Rule 6(5) of the CENVAT Credit Rules, 2004 would not be a bar to avail the benefit of concessional rate of duty as provided under Notification No. 1/2011-CE.
The Appellant is eligible for the concessional rate of duty @1% available in terms of the Notification No. 1/2011-CE. Accordingly, the demand of duty confirmed in the impugned order is set aside. Since, the duty demanded is not sustainable, the question of demanding interest and imposing penalty does not arise.
The impugned order is set aside - appeal allowed.
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