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Central Excise - Case Laws
Showing 721 to 740 of 81330 Records
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2024 (6) TMI 182
Levy under Central Excise Act, 1944 - Process amounting to manufacture or not - re-packing and labelling of ‘unmanufactured tobacco’ - HELD THAT:- A key element in fastening recovery of duty is determination of the appropriate tariff item in the Schedule to Central Excise Tariff Act, 1985; from the contents of the impugned order, we are unable to ascertain the reason for inferring that the impugned goods are covered by tariff item 4707 9000 of Schedule to Central Excise Tariff Act, 1985 in accord with the General Rules for Interpretation of the Tariff. There is also no finding as to the impact of the definition of ‘manufacture’ on section 3 of Central Excise Act, 1944 and its applicability to the process undertaken by the appellant de hors the amendment to ‘excisable goods’ which has no bearing on taxability but only on the rate of duty. In the absence of these critical evaluations, the impugned order cannot be adjudged as being legal and proper.
That must be rectified and to enable that, it is necessary to set aside the impugned orders - appeals of the assessee restored before Commissioner of Central Excise & Customs (Appeals), Aurangabad for a fresh hearing and decision - appeal allowed by way of remand.
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2024 (6) TMI 181
Cenvat Credit - scrapped/raw material which has not been used in the manufacturing process - time limitation.
Merits of the case - HELD THAT:- The entire case was built on the basis of entry in the ledger and there was no inquiry/investigation into the matter; no statement was recorded. The appellant has maintained proper records which is verified by the drug authorities from time to time and moreover, Chartered account certificate has also been placed on record which clearly certified that there is no write off input and moreover, the variance is only 0.28% which is normally accepted in the industry.
Reference made to the decision of the Tata Motors Ltd. Vs. Commissioner of Central Excise, Pune-I [2021 (11) TMI 830 - CESTAT MUMBAI] wherein the Division Bench of the Tribunal has considered various decisions on this issue and has observed that 'the CENVAT Credit cannot be denied to the appellant on a theoretical variance in the inputs.'
Time limitation - HELD THAT:- The show cause notice in the present case has been issued only on the basis of audit and no further inquiry/investigation was done. Further, the appellant has been regularly filing returns and was subjected to audit from time to time and has not suppressed any material with intention to evade payment of duty. In view of these facts, the entire demand in the present case is barred by limitation.
The impugned order is not sustainable in law and is set aside - appeal allowed.
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2024 (6) TMI 180
Cash refund in terms of transitional provision under Section 142(6)(a) of the CGST Act, 2017 - denial of benefit of Cenvat Credit in terms of Rule 3(1) of Cenvat Credit Rules, 2004 - HELD THAT:- After considering the provisions of Section 142(6)(a) of the CGST Act, 2017, Section 11B(2) of the Central Excise Act, 1944 and Rule 3(1) of the Cenvat Credit Rules, 2004, the Tribunal in various decisions has allowed the refund of Cenvat Credit of CVD & SAD paid through various challans produced on record.
It is also found that the Tribunal in the case of SRI CHAKRA POLY PLAST INDIA PVT LTD VERSUS COMMISSIONER OF CENTRAL TAX MEDCHAL – GST [2024 (1) TMI 927 - CESTAT HYDERABAD] has considered the earlier judgments in the cases of M/S MITHILA DRUGS PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS AND SERVICE TAX, UDAIPUR (RAJASTHAN) [2022 (3) TMI 58 - CESTAT NEW DELHI], M/S MITHILA DRUGS PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS AND SERVICE TAX, UDAIPUR (RAJASTHAN) [2022 (3) TMI 58 - CESTAT NEW DELHI], M/S. ITCO INDUSTRIES LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, SALEM [2022 (6) TMI 1040 - CESTAT CHENNAI] and FLEXI CAPS AND POLYMERS PVT LTD VERSUS COMMISSIONER, CGST & CENTRAL EXCISE-INDORE [2021 (9) TMI 917 - CESTAT NEW DELHI]], and by following these case-laws on this issue, has allowed the refund of CVD & SAD.
The appellant is entitled to refund of Cenvat Credit of CVD amounting to Rs.23,72,607/- and SAD amounting to Rs.10,21,081/-; and not the interest paid on delayed payment of duties as claimed by the appellant - Appeal allowed in part.
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2024 (6) TMI 179
Recovery of short paid duty - Jurisdictional Authority's Power to Issue Provisional Assessment Orders Suo Motu - revision for ascertainment of additional duty liability - Compliance with Rule 7 of Central Excise Rules, 2002 - HELD THAT:- The impugned order has set out the issue in dispute correctly but has gone on to find that the lack of exercise of option by an assessee in such situations enables the jurisdictional central excise authorities to do so in the interests of revenue. This is not a sustainable proposition as rule 7 of Central Excise Rules, 2002 is unambiguous in vesting the option only in the assessee to decide upon the finality of assessment – which is relevant only for the purposes of filing of monthly returns - in reporting discharge of duty liability for each month - Non-exercise of the option implies that the assessment is final and any duty not paid or short-paid is liable to be recovered by recourse to section 11A of Central Excise Act, 1944.
The Tribunal, in FINOLEX CABLES LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE – I [2023 (12) TMI 169 - CESTAT MUMBAI] of Commissioner of Central Excise (Appeals), Pune–I for the immediately preceding period, has held that 'in the absence of exercise of option by the assessee for ‘provisional assessment’, it is not open to central excise authorities to deem the clearances to have been provisional and to proceed with final assessment for each year.'
The impugned order flies in the face of the law and is set aside to allow the appeal of M/s Finolex Cables Ltd. For the same reason the appeal of Commissioner of Central Excise, Pune–I is dismissed.
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2024 (6) TMI 178
Refund of CVD paid under the existing statute, Central Excise Act, 1944 - whether the appellant is eligible to claim refund of Additional Duties of Customs (CVD) paid on re-import of goods under the provisions of Section 142(3) of the CGST Act, 2017? - HELD THAT:- It is found that the larger bench in M/S. BOSCH ELECTRICAL DRIVE INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL TAX, CHENNAI [2023 (12) TMI 1145 - CESTAT CHENNAI-LB] has examined the issue regarding whether this Tribunal is the appropriate authority to decide the issue in appeal against the order passed in respect of the matter relating to refund under Section 142(3) of the CGST Act, 2017 and has held that an appeal against such order would lie with this Tribunal.
By perusal of the above order of the Larger Bench of the Tribunal, it is found that it has been made clear that the issue of deciding an appeal against the order relating to the refund decided under the provisions of Section 142 of CGST Act, 2017 is required to be dealt by this Tribunal.
In the present case, as the CVD was paid subsequent to the appointed date (01.07.2017) for introduction of GST, i.e., on 18.07.2017, the appellant was unable to take credit of the same as Cenvat credit. Learned Commissioner (Appeals) had accordingly gave a finding that the appellant is eligible to avail credit of CVD paid on inputs under the Cenvat Credit Rules, 2004; however, he did not agree to the contention of the appellant stating that the provisions of Section 140(5) of CGST Act, 2017 provide for allowing credit of eligible duties. Further, learned Commissioner (Appeals) had held that the provisions of Section 142(3) ibid is not applicable to the present case and hence no refund can be claimed by the appellant under this provision.
Thus, there are strong grounds to consider refund of CVD paid on re-imported ‘Metformin HCL BP’ under B/E No. 9247561 dated 10.04.2017 and under Challan dated 18.07.2017 for an amount of Rs.1,50,147/- for which the appellant had filed the refund claim in the prescribed format under the provision of Section 142(3) CGST Act, 2017. Accordingly, the impugned order dated 07.01.2020 is not legally sustainable.
Appeal allowed.
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2024 (6) TMI 177
Abatement of appeal - non-prosecution of the case - adjournment of matter beyond three times - HELD THAT:- In case of Ishwar lal Mali Rathod [2021 (9) TMI 1301 - SUPREME COURT] condemning the practice of adjournments sought mechanically and allowed by the Courts/Tribunal’s Hon’ble Supreme Court has observed 'Considering the fact that in the present case ten times adjournments were given between 2015 to 2019 and twice the orders were passed granting time for cross examination as a last chance and that too at one point of time even a cost was also imposed and even thereafter also when lastly the High Court passed an order with extending the time it was specifically mentioned that no further time shall be extended and/or granted still the petitioner – defendant never availed of the liberty and the grace shown.'
There are no justification for adjourning the matter beyond three times which is the maximum number statutorily provided - Appeal is dismissed for non prosecution in terms of Rule 20 of CESTAT Procedure Rules, 1982.
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2024 (6) TMI 176
Invocation of extended period of limitation - suppression of fact - denial of CENVAT Credit under Rule 2(l) which are taken in relation to manufacturing & clearance of final products.
Invocation of extended period of limitation - suppression of facts - HELD THAT:- In the case of Surya Vistacom Pvt. Ltd. [2021 (11) TMI 339 - CESTAT KOLKATA] Tribunal has held that 'the details have been culled out by the adjudicating authority from the available records and there is no new or fresh tangible materials available in the hands of the adjudicating authority to make out a case of wilful misstatement or wilful suppression. Therefore, the Tribunal was fully justified in holding that the extended period of limitation could not have been invoked.'
In case of Meghmani Dyes & Intermediates Ltd. [2013 (6) TMI 141 - GUJARAT HIGH COURT] it was held that To make the demand for duty sustainable beyond the period of six months and upto a period of five years in view of the proviso to Section 11A of the Act, the Revenue is obliged to establish by cogent evidence that the duty of excise has not been levied or paid or short-levied or short-paid or erroneously refunded by reasons of either fraud or collusion or wilful mis-statement or suppression of facts or contravention of any provision of the Act or rules made thereunder, with intent to evade payment of duty.
As the demand has been made invoking extended period of limitation and it is not found that the same is available to Revenue for making this demand. The impugned order cannot be sustained on this ground itself.
Denial of CENVAT Credit - HELD THAT:- As the demand is barred by limitation, the question of admissibility of credits on merits not discussed.
Appeal allowed.
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2024 (6) TMI 175
CENVAT Credit - exempted Biscuits having retail price less than Rs.100/- - requirement to pay 10% of the value of the exempted Biscuits - appellant already reversed proportionate cenvat credit with interest before issuance of Show Cause Notice, availed on common inputs/input services but used in the manufacture of exempted Biscuits - HELD THAT:- Since the appellant has reversed the credit with interest availed on inputs and input services attributable to exempted products, accordingly in view of the series of judgments referred to by the learned advocate for the appellant and also in view of the retrospective amendment to the relevant Cenvat Credit Rules, 2004 vide Section 72 and 73 of Finance Act, 2010 and Notification No. 13/2016-CE(NT) dated 01.03.2016, the demand of 10% of the value of the exempted goods confirmed by the learned Commissioner in the impugned order cannot be sustained.
Reliance can be placed in M/S. SHEELA FOAM PVT. LTD. VERSUS COMMR. OF CENTRAL EXCISE, KOLKATA-IV AND MR SATISH AGARWAL M/S. SHEELA FOAM PVT. LTD. EXECUTIVE ACCOUNTANT VERSUS COMMR. OF CENTRAL EXCISE, KOLKATA-IV [2024 (2) TMI 957 - CESTAT KOLKATA] where on similar issue demand was set aside.
The impugned order is set aside - appeal is allowed.
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2024 (6) TMI 174
Classification of goods - LIV 52 Protec - goods misclassified as Animal Feed Supplement under Central Excise Tariff Heading 230990/23099010 of Central Excise Tariff Act, 1985 - whether the polyherbal preparation “Liv 52 Protec” manufactured by the appellant is classifiable under CETH 2302/230990/23099010 as ‘Animal Feed Supplement’ as classified by the appellant or under CETH 300339/30049011 as ‘Ayurvedic Medicaments’ as adjudged by the revenue? - Extended period of limitation - Penalties imposed under Section 11AC and Rule 25 of Central Excise Rules, 2002.
Classification of goods - HELD THAT:- It is found that Tariff item Heading 23099010 under Chapter Heading 2309, “Preparation of a kind used in animal feeding”, under others reads as ‘Compounded animal feed’. The Tariff Heading 30049011 under Chapter Heading 3004, “Medicaments (excluding goods of heading 3002, 3005 or 3006) consisting of mixed or unmixed products for therapeutic or prophylactic uses put up in measure doses (including those in the form of transdermal administration systems) or in forms or packages for retail sale”, under others, “Ayurvedic, Unani, Siddha, Homeopathic or Biochemic systems medicaments, put up for retail sale” reads as “of Ayurvedic systems”.
The major herbs in ‘Liv 52 Protec’ are Andrographis paniculata (Yavtika) enhances the body’s resistance against common infections by stimulating the production of antibodies. It also acts as a hepato-protective that helps prevent liver damage. Phyllanthus amarus (Bhumyaamalaki) is a rich antioxidant, which is effective in the treatment of infective hepatitis. It contains wedelolactone and dimethyl wedelolactone and stimulates the secretion of digestive enzymes. It eliminates toxins and aids in the regeneration of hepatopancreas. The herbal ingredients in the impugned product also have similar hepatoprotective properties - ‘Liv 52 Protec’ liquid stabilizes the hepatic cell membrane and promotes regeneration of the liver and also protects the liver from toxins, drugs and chemicals. Liv 52 Protec, is an appetite stimulant that increases and restores appetite in animal.
In this case, the appellant is manufacturing a similar product ‘Liv 52 Vet’ and classifying the same under Chapter Heading 30 as an ‘Ayurvedic medicament’ and paying the appropriate duty. However, ‘Liv 52 Protec’ is branded and marketed as animal feed supplement. Animal feed supplements are mixtures that are added either to animal feed or fed directly to animals to provide extra nutrients such as vitamins and minerals. The impugned product ‘Liv 52 Protec’ does not have vitamins or minerals, which would supplement the animal feed. Further the tariff heading item 2309 9010 reads as ‘Compounded animal feed’ and not as ‘animal feed supplement.’- the classification of the impugned product as animal feed supplement is not proper under chapter heading 23 and it should be classified under Chapter 30.
The product ‘Liv 52 Protec’ is rightly classifiable under Chapter Sub-heading 300339 for the period upto February 2005 and under Chapter subheading 30049011 from March 2005 onwards - the ‘Liv 52 Protec Liquid’ in bulk is exported under the Chapter Heading 30039011.
Invocation of the extended period - HELD THAT:- The appellant has been submitting ER-1 showing the details of the goods manufactured and cleared by them. The details of goods cleared inter alia include ‘Liv52 Protec’ as well as ‘Liv 52 Vet Liquid’. Further the Department has also conducted an audit for the period under dispute and no audit point was raised to indicate that there is suppression of facts and the Department is fully aware of the facts and issues and the goods were cleared in accordance with the approved classification list. Therefore, the invocation of extended period for confirmation of demand of duty for the period May 2002 to April, 2007 is not legally sustainable.
Penalties imposed under Section 11AC and Rule 25 of Central Excise Rules, 2002 - HELD THAT:- In the facts and circumstances of the case and as the issue involved is classification, the penalties imposed under Section 11AC and Rule 25 of Central Excise Rules, 2002 are not legally sustainable, hence they are dropped.
Appeal disposed off.
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2024 (6) TMI 127
Rebate claim - applicability of SION norms in determining wastage for rebate claims - Rule 18 of the Rules, 2002 - department filed a revision application against sanctioning of the rebate - HELD THAT:- The department passed the recovery order in question and the order dated 26.07.2011 and amended corrigendum dated 17.07.2012 were not challenged before any higher authority, thus, the same had attained finality. This Court further observes that vide the order dated 02.11.2016 passed in [2016 (11) TMI 483 - RAJASTHAN HIGH COURT], this Hon’ble Court had only quashed the order dated 16.11.2011, while the order dated 26.07.2011 and amended corrigendum 17.07.2012 were not even challenged, and therefore, the order dated 02.11.2016 as passed in the aforesaid writ petition is on a different footing and does not have any bearing on the present case.
SION norms - HELD THAT:- This Court also observes that the petitioner itself has not contested the SION norms before the Appellate Authority - This Court further observes that once the petitioner has not raised any dispute with regard to the SION norms before the Appellate Authority, it cannot now raise any dispute in this regard in the present petition.
This Court further observes that the Adjudicating Authority at the time of issuance of the recovery order has not rightly calculated the SION norms, and thus, thereafter, the Appellate Authority changed the above-said calculation and reduced the recovery amount, while making correct calculation as per the SION norms; the said order has been upheld by the Revisional Authority, vide the impugned order, which is justified in law - this Court does not find it a fit case so as to grant any relief to the petitioner in the present petition.
Petition dismissed.
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2024 (6) TMI 126
Differential Central Excise duty demand under Section 11A(4) of the Central Excise Act, 1944 - penalty for failure to pay the differential duty - extended period of limitation.
Upon ascertaining the audited cost report in the month of October/November of each year and after obtaining the CAS-4 certificate indicating the actual value of such intermediate goods, the appellant discharges the differential duty with appropriate interest as per law.
Sustainability of the differential Central Excise duty demand u/s 11A(4) of the Central Excise Act, 1944 - HELD THAT:- There is apparent contradiction as the learned Commissioner had found that the appellant had himself worked out the duty to be paid at the time of clearance of goods to their sister units and discharged the same before clearance of such goods on the basis of available records. However, on ascertaining the actual cost of production involved during the relevant time from the final CAS-4 certificates, they had paid the differential Central Excise Duty on the value of actual cost duly determined by independent Cost Accountant and duly verified by the jurisdictional Assistant Commissioner and also paid the applicable interest thereon for the delay in payment. All the above activities are undertaken by the appellant after informing the Department about the practice in discharging their duty liability in respect of intermediate goods that arise during the course of manufacture of final products.
It is not the case of the department that they knew the actual cost upon which the correct duty on intermediate goods could have been worked out, as the SCN also proposed certain addition of 15% to the base cost adopted by the appellant. There was only a different in the percentage of addition of 10% adopted by the appellant and 15% proposed in the SCN. Thus, the demand of duty by invoking the provision of Section 11A(4) of the Central Excise Act, 1944 is not sustainable.
Invocation of Extended period of limitation - HELD THAT:- The Co-ordinate Bench of the Tribunal in the case of SANVIJAY ROLLING & ENGINEERING LTD. VERSUS COMMR. OF C. EX., NAGPUR [2022 (2) TMI 893 - CESTAT MUMBAI] had held that the demand of duty invoking extended period of limitation is not invokable in case of duty demand for clearances made to its other units.
Penalty - HELD THAT:- The demand of differential duty invoking extended period is not sustainable and that too when the requisite duty has been paid by the appellant after duly informing the department about the same and further additional duty was also paid upon ascertaining the actual cost through CAS-4 cost audited records along with interest due for such belated payment. For the same reason, imposition of penalty under Section 11AC (1)(a) of the Central Excise Act, 1944 and imposition of penalty under Rule 25(1)(a) of Central Excise Rules, 2002 are not sustainable.
Impugned order set aside - appeal allowed.
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2024 (6) TMI 125
Short payment of duty - clearance of pig iron and concast billets and ingot and concast billets to sister units, without ascertaining the correct assessable value thereof as per Rule 4 of the Valuation Rules - Contravention of provisions of Section 4 (1)(b) of the Act read with Rule 4 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - demand of differential duty with penalty - HELD THAT:- Similar issue came up before this Tribunal in the case of NATIONAL ALUMINIUM CO. LTD. VERSUS COMMISSIONER OF C. EX., BHUBANESWAR-I [2005 (3) TMI 186 - CESTAT, NEW DELHI], wherein this Tribunal has observed 'the appellant has correctly paid the duty on the goods in question, which has been captively consumed by the sister unit for manufacturing of excisable goods in terms of CBEC Circular No.692/8/2003-CX dated 13.02.2003. On merit, the appellant has rightly paid the duty as per CAS-4 in terms of Rule 8 of the Valuation Rules.'
As the issue has already been settled by this Tribunal in the case of NALCO, the appellant has correctly paid the duty in terms of Rule 8 of the Valuation Rules as per CAS-4. Therefore, no differential duty is payable by the appellant.
Penalty - HELD THAT:- As there is no demand against the appellant, therefore, no penalty is imposable on the appellant.
The impugned order is set aside - appeal allowed.
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2024 (6) TMI 124
Determination of assessable value - inclusion of landed cost of the raw materials, processing charges, and all other relevant charges as per Section 4 of the Central Excise Act, 1944 - mis-declaration and suppression of facts or not - time limitation.
Determination of assessable value - HELD THAT:- As per the Supreme Court’s decision in the case of Ujagar Prints [1989 (1) TMI 124 - SUPREME COURT] and based on CBEC circular No.619/10/2002-CX dated 19.2.2002 and No. 643/34/2002-CX dated 1.7.2002, it is a settled issue that the job worker has to discharge duty based on the landed cost and the processing charges and therefore, on merits the demand is upheld. From the records placed, it is seen that the selling price of KHDC at times it is higher than the landed cost and the duty has been discharged on this higher value which has not been disputed by the department, however, the differential duty has been demanded in all those cases where the landed cost is higher than the selling price declared by KHDC.
Time Limitation - suppression of facts or not - HELD THAT:- It is also on record that the appellants have been filing all these documents before the department in terms of monthly RT-12 Returns and price declarations, therefore, it cannot be alleged that the appellant had mis-declared or suppressed the facts in as much as they had cleared the processed goods on payment of duty at the selling price declared by KHDC and it is also on record that the selling price declared by KHDC is more than the landed cost plus processing charges in some of the cases. Therefore, the fact that the material facts were suppressed or the value was mis-declared is not justified.
In the case of Uniworth Textiles Ltd. vs. Commissioner of Central Excise, Raipur [2013 (1) TMI 616 - SUPREME COURT] the Supreme Court while dealing with the proviso to Section 11A on limitation observed that in order to attract the proviso to Section 11-A(1) it must be shown that the excise duty escaped by reason of fraud, collusion or willful misstatement of suppression of fact with intent to evade the payment of duty.
In the present case, since the facts were known to the department and there is no evidence placed on record for wilful evasion of duty with intent to evade, the question of invoking proviso to Section 11A does not arise.
The impugned order is allowed to the extent of confirmation of duty only for the normal period - appeal allowed in part.
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2024 (6) TMI 123
Clandestine manufacture and removal - demand confirmed solely on the basis of the expert opinion (of Mr. G.S. Hegde), Chartered Engineer on consumption of electricity in production of unit quantity of MS ingots and CTD bars - HELD THAT:- Undisputedly, the appellant are engaged in the manufacture of MS ingots which are captively consumed in the manufacture of CTD bars. Periodical show-cause notices were issued to the appellant on the basis of expert opinion of Mr. G.S. Hegde, Chartered Engineer who opined that 1000 units of power is required to manufacture 1 MT of MS ingots and 200 units of power is required to manufacture 1 MT of CTD bars. On the basis of said unit consumption of electricity, estimated quantity of ingots and CTD bars manufactured during the period has been calculated and on comparison of the said figures with the Statutory Registers maintained for production and clearance, the difference quantity alleged to be removed clandestinely without payment of duty.
In the appellant’s own case for earlier period i.e. from August 2001 to June 2007, this Tribunal has already decided the issue in SARAVANA ALLOYS STEELS PVT. LTD. VERSUS COMMR. OF C. EX., BANGALORE-II [2011 (2) TMI 1211 - CESTAT, BANGALORE]. After analysing the principles of law on the issue, this Tribunal has observed 'No evidence is available for transport of such goods cleared without payment of duty. There is no evidence of receipt of sale proceeds of any quantity of its final products without accountal. These would indicate that the basis for finding of evasion viz., the power consumption ascertained by Shri G.S. Hegde is totally incorrect.'
Following the aforesaid judgment of the Tribunal in the appellant’s own case and while for subsequent period, the Revenue could not place any further corroborative evidence, except quantifying and confirming the demand based on expert report of Mr. G.S. Hegde, Chartered Engineer, same cannot be sustained.
The impugned order is set aside - Appeal allowed.
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2024 (6) TMI 122
Method of Valuation - clearance of electrical motors captively used - to be valued in terms of Rule 8 of Central Excise (Valuation) Rules, 2000 or in terms of Rule 4 of Central Excise (Valuation) Rules, 2000 - suppression of facts or not - time limitation - cum-duty benefit.
Method of valuation - HELD THAT:- The appellant clears fine blanks and electric motors for washing machines as warranty replacements, spares market and also uses for captive consumption. In view of the Larger Bench decision in the case of ISPAT INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., RAIGAD [2007 (2) TMI 5 - CESTAT, MUMBAI-LB], it is a settled law that the appellant should have taken the value of the spares market for all the clearances of captive consumption as well as warranty replacements. Therefore, as far as demand is concerned, it has to be upheld and as admitted by the appellant demands are being upheld.
Time limitation - cum-duty benefit - HELD THAT:- There is substance in the claim of the appellant that the issue was not without any controversy and hence, they cannot be alleged that facts were suppressed with intention to evade payment of duty. Moreover, as seen from the records, originally show-cause notice was issued without invoking suppression and this was for the period April 2007 to December 2007 and later show-cause notices alleging suppression on the same set of facts for the period prior to 2007 is not justified. In view of the fact that all the assemblies were made on payment of duty and disclosed in their monthly ER-1 returns and the clearances to the spares market was known to the Revenue, the question of wilful suppression cannot be alleged. The benefit of cum-duty which is already a settled issue is also to be extended to the appellant.
In view of the facts discussed above and in view of the decision of the Larger Bench, demands in all the Show cause notices are upheld only to the extent of normal period. Penalty imposed under Section 11AC is set aside. The matter is remanded to the original authority to recompute the duty - Appeal disposed off by way of remand.
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2024 (6) TMI 85
Invocation of Extended period of limitation - recovery of CENVAT Credit with interest and penalty - Rent a Cab Service - HELD THAT:- There are no specific reason recorded in the show cause notice or the Order-in-Original or the impugned order on the basis of which it can be said that the Appellant has suppressed any facts from the Revenue with intention to evade payment of service taxes. Invocation of extended period of limitation as per Section 11A(4) for making this demand could not have been sustained in view of COMMISSIONER VERSUS MEGHMANI DYES & INTERMEDIATES LTD. [2013 (6) TMI 141 - GUJARAT HIGH COURT] and M/S LG ELECTRONICS INDIA PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, (NOIDA) [2024 (4) TMI 533 - CESTAT ALLAHABAD] where it was held that 'Where merely a procedural violation in respect of complying with a condition of Notification cannot be said to be an act of suppression for invoking extended period of limitation. No justification for invoking extended period of limitation is forthcoming from the show cause notice, order in original or the impugned order.'
The demand is barred by limitation - the impugned order is set aside - appeal allowed.
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2024 (6) TMI 41
CENVAT Credit - eligible services in terms of Rule 2(l) of Cenvat Credit Rules, 2004 - invocation of extended period of limitation - HELD THAT:- Revenue has already issued a show-cause notice dated 06.12.2010, covering the period November 2005 to March 2010, disputing the eligibility of certain services to credit and invoking extended period. The said show-cause notice has been dropped by the Commissioner; the appeal filed by the Department against that order was rejected by this Bench in [2021 (12) TMI 381 - CESTAT BANGALORE], while deciding the issue in favour of the appellants.
It is found that in the instant case also extended period has been invoked while relying on the data which was already available with the Department. It is found that where there are no changes in the material facts of the case and the information available with the Department extended period cannot be invoked again in the subsequent period as held by the Hon’ble Supreme Court in the case of NIZAM SUGAR FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, AP [2006 (4) TMI 127 - SUPREME COURT].
Invocation of extended period requires the evidence regarding the satisfaction of the conditions prescribed therein like suppression of facts etc. with an intent to evade payment of duty. Leaving alone such proof, it is found that learned Commissioner does not even discuss as to why extended period can be invoked. We are of the considered opinion that such a show-cause notice and the impugned order cannot be sustained. The invocation of extended period is a weapon in the hands of the Department to demand duty where the belligerent assessee evades payment of duty and not in cases wherein all the material facts of the case were available with the Department and show-cause notices are being issued regularly on the same issue. Therefore, the appellants have a strong case in their favour on limitation.
CENVAT Credit - HELD THAT:- The appellants are agreed upon that the services on which credit was availed are integral to the business of manufacture carried out by the appellants. In fact this Bench in [2021 (12) TMI 381 - CESTAT BANGALORE] has analyzed various services on which the appellants have availed credit and have decided the issue in favour of the appellants. The appellants therein has relied upon various cases to justify the credit taken in respect of 67 services on which credit was taken.
The appellants have a strong case in their favour. The impugned order cannot be sustained and is liable to be set aside - Appeal allowed.
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2024 (6) TMI 40
Refund arising on account of finalization of provisional assessment - hit by the clause of unjust enrichment - rejection on the sole ground that the appellant had failed to prove that the duty element claimed to have been returned through credit notes to the immediate buyer, had ultimately reached the consumer - scope of SCN crossed.
Refund claim - HELD THAT:- In the present case, upon finalization of provisional assessment vide Order dated 29.09.2008, it was notice that there was short payment as well as excess payment of duty. The proper officer ought to have allowed adjustment of the short paid and excess duty paid as per Rule 7 of the Central Excise Rules, 2002. However, it was not allowed and the appellant was asked to file refund claim for the excess paid amount of Rs.4,55,260/-.
Scope of SCN - HELD THAT:- It is observed that the Show Cause Notice was issued for denial of the refund on the ground of time-bar. However, both the authorities below have denied the refund claim on the ground of unjust enrichment. Thus, the submission of the appellant is agreed upon that the impugned order has travelled beyond the Show Cause Notice and therefore, the same is liable to be set aside on this ground alone.
Unjust enrichment - HELD THAT:- From the sample certificate issued by the dealers, we observe that all the dealers were not registered under the Central Excise Law for the purpose of availing or passing on the credit. Therefore, the question of any dutiable component in the form of refund of excise duty on the component of discounts as well as CENVAT Credit on the component does not arise - the appellant has produced sufficient evidence to establish that unjust enrichment is not applicable to this case.
The evidence available on record which clearly indicates that the appellant has not passed on the duty element to the ultimate customers, it is held that the impugned order denying the refund claim filed by the appellant on the ground of unjust enrichment is not sustainable.
The impugned order is set aside - appeal allowed.
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2024 (6) TMI 13
Cenvat credit - 1%/2% CVD paid on imported Steam Coal vide N/N.12/2012- Cus dated 17.03.2012 - HELD THAT:- The issue has been decided by the Tribunal in the case of M/s. Chettinad Cements Corporation Pvt Limited (supra) by final order dated 26.10.2020. The Tribunal had followed the decision in the case of M/S. TAMIL NADU NEWSPRINT & PAPERS LIMITED VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, TIRUCHIRAPPALLI [2021 (10) TMI 13 - CESTAT CHENNAI]. The demand raised and confirmed denying the Cenvat credit availed on CVD paid on imported Steam Coal was set aside.
The demand cannot sustain and requires to be set aside. The impugned orders are set aside - Appeal allowed.
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2024 (5) TMI 1484
Imposition of personal penalty 26 of Central Excise Rules, 2002 on co-appellant - abating the evasion of duty by M/s. Atlas Plastics - main case of duty evasion is settled under SVLDRS 2019 - HELD THAT:- Since, the appellant has been penalized under Rule 26 in connection with the duty evasion made by M/s. Atlas Plastics and their case has been settled under SVLDRS and the appeal was disposed by this Tribunal vide order dated 07.11.2023, the personal penalty of the appellant is not sustainable in view of the decisions of SHRI V.K. AGGARWAL AND SHRI J.K. AGGARWAL VERSUS COMMISSIONER OF CENTRAL TAX, CGST AND CENTRAL EXCISE, NEW DELHI [2023 (9) TMI 178 - CESTAT NEW DELHI] and SHRI SASTHI CHARAN BANERJEE VERSUS COMMR. OF CGST & CX, BOLPUR COMMISSIONERATE [2022 (12) TMI 1437 - CESTAT KOLKATA].
In view of the above judgments, it is settled that once the main case of duty evasion is settled under SVLDRS 2019 the penalty on the Co-appellant shall not survive.
The penalty is set aside - The Appeal is allowed.
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