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Central Excise - Case Laws
Showing 781 to 800 of 81330 Records
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2024 (5) TMI 1049
Valuation - trade discount offered by the appellants to BEST, being a bulk buyer - additional consideration for sale of CNG - due to technical necessity of the product, the compressors or dispensers are to be installed at the premises of BEST for supply of CNG to their buses and outside vehicles or not - HELD THAT:- The valuation provisions contained in section 4 of the Central Excise Act, 1944 was substituted by Finance Act, 2000, w.e.f. 01.07.2000. The said amended provisions have considered different transaction values for the price charged to different customers for assessment purpose, subject to the condition that such transactions are purely based on commercial consideration, buyer and seller are not related to each other and the price charged is the sole consideration for such sale at the time and place of delivery - no evidence is forthcoming that the discount offered by the appellants to BEST was in lieu of the infrastructural facilities extended to them. Hence, the transaction value should be considered as the price at which the CNG were supplied by the appellants to BEST and such price should be considered as the value for the purpose of assessment and discharge of central excise duty liability.
The issue arising out of present dispute is no more open for any debate, in view of various orders passed by the Tribunal in the case of the appellants themselves for earlier period, holding that deduction of trade discount from assessable value is admissible on sale transactions - reliance placed in the case of COMMISSIONER OF CENTRAL EXCISE, MUMBAI-V VERSUS M/S MAHANAGAR GAS LTD. [2019 (9) TMI 746 - CESTAT MUMBAI] where it was held that 'No investigation has been conducted by the revenue to establish the allegation that the discount offered by the respondent to BEST was in lieu of all infrastructural facilities extended by BEST to the respondent.'
There are no merits in the impugned order, insofar as it has upheld confirmation of the adjudged demands on the appellants - appeal allowed.
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2024 (5) TMI 1048
Levy of National Calamity Contingent Duty (NCCD) - chassis emerges at the intermediary stage and is captively consumed in the manufacture of Dumpers - captively consumed chassis or are they exempted vide N/N. 67/95.
Whether chassis emerges at the intermediary stage and is captively consumed in the manufacture of Dumpers? - HELD THAT:- There is no whisper of Chapter Note 3 in any of these notices and no new facts have been brought out to show that in view of these changes, the chassis comes into existence even though it is not culminated into a drive away chassis - the change in the Chapter Note, whether or not fitted with a cab will not make any change in the decision rendered earlier because the criteria based on HSN was whether it is a drive away chassis. From the Chapter Heading and the HSN Notes reproduced below, it is clear Chassis fitted with engines and with their transmission and steering gear and axles fall under Chapter 8706. The Commissioner at para 88/88.1 states “this heading covers the Chassis frames or the combined to Chassis body frame work for the motor vehicles of headings 8701 to 8705 fitted with their engines and with their transmission and steering gear and axis (with or without wheels). That is to say goods of this heading are motor vehicles without bodies. The above explanation to emphasise the necessity of steering mechanism for qualifying to be called Chassis.
There is nothing new in the present show-cause notices nor in the impugned order to be decided afresh since all these factors have been already considered and the decision has been rendered in favour of the appellant. As seen from the Chapter Headings and the HSN Notes, nothing has changed and therefore, the orders discussed above in the appellant’s own case has attained finality. Accordingly, the ‘Chassis’ does not come into existence at the intermediary stage and therefore, the question of dutiability does not arise.
Whether NCCD is leviable on these captively consumed chassis or are they exempted vide N/N. 67/95? - HELD THAT:- Since it is held that the Chassis does not come into existence at the intermediary stage and therefore, the question of captive consumption does not arise, consequently, the question whether exemption is available to NCCD under N/N. 67/95 becomes only academic and not delved into.
The impugned order is set aside - Appeal allowed.
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2024 (5) TMI 1047
Process amounting to manufacture or not - assembling of various parts and components of furniture imported in CKD condition and also procured indigenously, at the premises of the appellant or at the site of the customers - Furniture classifiable under CSH 9403 of CETA,1985, within the meaning of Section 2(f) of Central Excise Act, 1944 or not - extended period of limitation - imposition of penalties on the Appellant and the Director - Cum-tax value & Cenvat credit is admissible if the process of assembly of furnitures is held to be excisable or not.
Excisability - HELD THAT:- On the facts whether the workstations installed at the site of the customers become immovable, hence not excisable, the Ld. Commissioner analysing the statements furnished by the Manager and the Supervisor of the appellant and the cross examination of the said witnesses and other evidence has categorically held that with minor damages and scratches, the workstations installed in the premises of the customer from the imported and indigenously procured parts and components could easily be shifted to other premises, hence, these furniture(work stations) are movable and accordingly excisable - the statements/depositions given by the witnesses before the Department have not been retracted, hence are reliable evidences. The witnesses also cross examined before the adjudicating authority. No contrary evidence has been placed by the Appellant to support their argument that after assembling and then fixing the workstations to the ground / floor at the customers’ premises, it becomes immovable; hence not excisable.
This Tribunal also in the case of Leo Circuit Boards Pvt. Ltd. [2015 (5) TMI 659 - CESTAT MUMBAI] more or less confronted with more or less a similar issue of excisability of assembly of Lottery Terminal out of CKD kit supplied by M/s. Pan India Network Infravest P. Ltd. By referring to the list of parts that have been assembled at the site of the customers, even though fully manufactured and cleared in CKD condition by the supplier and later assembled at the site, this Tribunal came to the conclusion that such assembly of different parts brought in CKD condition to bring into existence of Lottery Terminal, would result into ‘manufacture’.
Classification of goods - HELD THAT:- In the present case, undisputedly the entire parts and components of the furniture, workstations are not imported but certain indigenous parts and components are procured are also used in assembling the parts/ components of furnitures imported in CKD condition - assembly of parts and components of the furniture i.e. workstations in the premises of the customers would result into manufacture of excisable goods viz. ‘furniture’ classifiable under CTH 9403 and attracts duty.
Invocation of extended period of limitation - HELD THAT:- There is merit in the argument of the appellant that on a bona fide belief that excise duty on assembly of furnitures at the site of the customers will not be payable as customs duty has already been paid at the time of its import in CKD condition albeit certain parts used were procured indigenously, excise duty was not discharged on assembly of the same - The judgment of the Hon’ble Supreme Court in Craft Interiors Pvt. Ltd.’s case [2006 (10) TMI 2 - SUPREME COURT] was delivered in the year 2006 and the present demand is confirmed invoking suppression of facts for the period 2004 to 2006-07. In these circumstances, confirmation of duty invoking extended period of limitation cannot be sustained. Thus, the demand, by issuing show-cause notices from time to time, should be limited to the normal period of limitation.
Penalty - HELD THAT:- There are no substances in imposing penalty on the appellant for failure to discharge service tax on the assembled furniture during the relevant period.
Penalty on Director - HELD THAT:- There are no justification for imposition of penalty on the Director. Consequently, the appeals filed by the Director are allowed.
Cum-duty benefit - CENVAT Credit - HELD THAT:- In the event, the appellant had issued proper invoices indicating sale price of the goods and genuineness of which has not been disputed, the appellants are eligible for the benefit of cum-duty price in view of the amendment to Section 4 of the Central Excise Act, 1944 w.e.f. 14.05.2003 - Also, the appellants are entitled to avail cenvat credit on the inputs on production of evidences of payment of duty on the said inputs to the satisfaction of the adjudicating authority.
The impugned orders are modified and the cases are remanded to the adjudicating authority to compute the demands with interest for the normal period of limitation only; also the benefit of cum-duty price and cenvat credit be allowed subject to production of necessary documents. As observed above, no penalty is imposable.
Appeal disposed off.
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2024 (5) TMI 992
Wrongful availment of CENVAT Credit - appellant did not produce the input tax invoices for verification at the time of audit - HELD THAT:- It is found from the orders passed by the lower authorities that the cenvat credit has been denied to the appellant on the sole reason that the input service invoices were not produced by the appellant for verification during the audit and when these invoices were produced by the appellant before the Adjudicating Authority, instead of considering the same, he sent the invoices to the jurisdictional Division Office for verification and disallowed the credit relying on the verification report of the Divisional Office.
The Commissioner (Appeals) ought to have remanded the matter in entirety and should not have bifurcated the amount when according to the appellant it is on the same footing. Learned counsel for the appellant has prayed that the dispute in the present appeal relating to the amount of Rs.10,02,461/-should also be remanded to the Adjudicating Authority to be considered de novo in the light of the documents specially the invoices to be placed on the record.
The proper course would be to remand the matter in respect of the present issue to the Adjudicating Authority to be considered on merits.
Appeal allowed by way of remand.
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2024 (5) TMI 991
CENVAT credit - process amounting to manufacture or not - process of drawing from bars and rods - HELD THAT:- There is no provision in the CENVAT Credit Rules to deny credit at the end of the manufacturer who uses the inputs on which duty has been paid though under mistaken notion of law. The appellants having procured the inputs on payment of duty are entitled to avail CENVAT credit on the same.
Credit allowed - The appeal is allowed.
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2024 (5) TMI 990
Wrongful availment of benefit of SSI exemption - clubbing of clearances - commonality of the directors and financial dealings between them - HELD THAT:- The very same issue has been decided in favour of the appellant by this Bench of the Tribunal in NOBLE CHLOROCHEM PVT. LTD., NOBLE ALCHEM PVT. LTD., SHRI KAILASH CHAND GUPTA, DIRECTOR, SHRI SURESH CHAND GUPTA, DIRECTOR VERSUS CCE & ST, ROHTAK [2020 (7) TMI 291 - CESTAT CHANDIGARH] on the show cause notice issued for the period 2006 to 2012, wherein the Tribunal has held 'As per the CBEC Circular No.6/92 dated 29.5.1992, the Board has clarified that private limited companies are treated as separate, therefore, we have no hesitation to hold that both the units are separate units.'
The impugned order is not sustainable and requires to be set aside - Appeal allowed.
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2024 (5) TMI 989
Rejection of refund claim - refund of duty paid on outward freight charges - no requirement to pay duty on the transportation charges, as the appellant was clearing goods from their factory gate - goods are sold on FOR basis - difference of opinion - majority order - HELD THAT:- Following the ratios of the law laid down by the Larger Bench of the Tribunal in the case of M/s The Ramco Cements Limited [2020 (6) TMI 794 - CESTAT CHENNAI] and the decision of Hon’ble High Court of Himachal Pradesh in the case of M/s Inox Air Products Pvt Ltd [2024 (4) TMI 32 - HIMACHAL PRADESH HIGH COURT], it is opined that the impugned orders denying the refund of the excise duty paid by the appellant on transportation of the goods up to the buyer’s premises are not sustainable in law and hence, the same is set aside by allowing all the appeals of the appellant with consequential relief, if any, as per law.
When the sale is on a FOR basis and the outward freight charges are included in the assessable value, the appellant is entitled to claim a refund of the central excise duty paid on the freight.
Appeal allowed.
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2024 (5) TMI 988
Exemption /effective rate for goods falling under Chapter Heading Nos.84 to 98 of of the Central Excise Tariff Act, 1985 under N/N. 6/2006-CE dated 01.03.2006 - Clearance of goods without payment of duty to M/s.Nagarjuna Thermal Power Project, Udipi, Karnataka for setting up of a Mega Power Project - demand on quantity of M.S.Rebars, cleared in excess of the quantity allotted to them by the Project Authority - Extended period of limitation.
The department was of the view that the supply of M.S.Rebars is not against the International Competitive Bidding, as the appellant is only a sub-contractor and thus the exemption has been wrongly availed by them.
Eligibility for benefit of Notification No.6/2006-CE dated 01.03.2006 for the goods supplied - HELD THAT:- Admittedly, the appellant is a sub-contractor who has supplied goods to the main contractor, M/s.Lanco Infratech Ltd, who has participated in the International Competitive Bidding. The issue whether the sub-contractor, who has supplied the goods to the main contractor, who has participated in the International Competitive Bidding is eligible for exemption has been clarified by vide Board Circular dated 10.07.2014.
Also, the Tribunal in the case of KENT INTROL PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2014 (2) TMI 633 - CESTAT MUMBAI] has held that when the supply of goods are made to the main contractor who has participated in the International Competitive Bidding and has been awarded the contract; the sub-contractor is also eligible for exemption under Notification No.6/2006-CE dated 01.03.2006.
The Tribunal in the case of M/S TOSHNIWAL INDUS. PVT. LTD. VERSUS CCE, JAIPUR-II [2017 (5) TMI 387 - CESTAT NEW DELHI] has taken a similar view, which held that the sub-contractor is also eligible for the Benefit of Notification.
Thus, the view taken by the Adjudicating Authority that the goods are not eligible for exemption for the reason that the appellant is only a sub-contractor is not justified.
The second ground on which the Benefit of Exemption has been denied is by alleging that the appellant has not satisfied Condition No.19 of the Notification No.6/2006 - HELD THAT:- The goods irrespective of their individual classification and rate of duty, if intended for use in execution of a project which is satisfied under CTH 98.01 are eligible for Benefit of Exemption from Customs duties. Thus, goods imported when intended for use in Mega Power Project are eligible for exemption from Customs duties, in terms of Sl.No.400 of Notification No.21/2002-CUS dt. 01.03.2002. The condition prescribed under Sl.No.91 of Notification No.6/2006 thus stands satisfied.
In the case of SARITA STEELS & INDUSTRIES LTD. VERSUS COMMR. OF C. EX., VISAKHAPATNAM [2010 (7) TMI 568 - CESTAT, BANGALORE] the issue considered was that whether the angles, channels, beams, etc. supplied by the assesse to M/s.Bharat Heavy Electricals Limited, was eligible for exemption under Notification No.6/2006. The goods having been intended to use for the Mega Power Project, the Tribunal held that the goods would be relatable to Chapter Heading 98.01 and would be eligible for Benefit of Exemption of under Notification No.21/2002.
The Tribunal in the case of M/S GANGES INTERNATIONAL PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [14 (8) TMI 498 - CESTAT NEW DELHI] considered the same issue and held that the case is in the nature of General Fabrication Structures, Auto Welded Beams and Boxes, cleared by appellants for use in the Mega Power Project would be eligible for benefit of notification.
From the above, it is clear that the supply of goods required to set up mega power project is covered by Chapter Heading 98.01. The Project Authority Certificate issued to the appellant clearly states that the goods have been supplied for Nagarjuna Thermal Power Project, Udupi. This being the fact, the order passed by the adjudicating authority that M S Rebars do not fall under CH 98.01 is erroneous and not supported by any basis.
Thus, the denial of exemption is without any legal or factual basis. The appellant is eligible for exemption under Notification No.6/2006-CE dated 01.03.2006.
The Impugned Order is set aside - The appeal is allowed.
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2024 (5) TMI 935
Manufacture - marketability - Jurisdiction of special judge - Transfer of case from the Magistrate to the Special Judge - it was held in 2013 (10) TMI 904 - SUPREME COURT that 'The fact that for an administrative exigency, the High Court decided to exercise its plenary administrative power does not per se lead to the conclusion that the transfer of the case from the Magistrate to the Special Judge was unlawful' - HELD THAT:- The issue decided in KEC INTERNATIONAL LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2016 (12) TMI 1317 - CESTAT MUMBAI] where the demand was set aside.
The duty demand set aside - appeal allowed.
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2024 (5) TMI 934
Jurisdiction - appropriate forum - right of appeal relating to the value of service - maintainability before High Court or not - HELD THAT:- Though there is an appellate remedy available to the appellant or to the aggrieved party in terms of Section 35G, the issue pertaining to the value of service cannot be agitated before this Court. The party has got right only before the Supreme Court in terms of Section 35L.
The appeal preferred by the appellant is rejected giving liberty to the appellant to approach the Apex Court, if so advised - appeal dismissed.
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2024 (5) TMI 933
Extended period of limitation - inordinate delay in adjudication of a show cause notice - dispute related to period 2004-05 - on the basis of a show cause notice issued on 10.09.2008 and after lapse of about 10 years from the date of issuance of show cause notice, notice for personal hearing was issued and the final Order-in-Original was passed on 04.09.2023, after a period of 15 years - recovery of wrongly availed CENVAT Credit with interest and penalty - HELD THAT:- The notice of show cause was issued on 10.09.2008, which came to the knowledge of the petitioner on 05.12.2017, when a personal hearing notice pursuant to the show cause notice dated 10.09.2008, was issued to the petitioner. The same was followed by another personal hearing notice dated 05.01.2018. It is only after issuance of these personal hearing notices, the petitioner became aware of the proceedings and obtained a copy of the show cause notice dated 10.09.2008 on 08.01.2018, i.e., after a lapse of more than 9 (nine) years from the date of show cause notice. The petitioner filed its reply indicating therein that the show cause notice was sought to be adjudicated after a considerable lapse of time, without any justification and without any communication to the petitioner during the intervening period and, thereby, the delay in adjudication of the show cause notice dated 10.09.2008 is fatal to the proceedings and subsequent issuance of notices for personal hearing after a lapse of about 10 years from the date of issuance of the show cause notice is contrary to the mandate of Sub-section (11) of Section 11A of the Central Excise Act, 1944.
It is made clear Section 11A (11) of the Central Excise Act, 1944 envisages that the Central Excise Officer shall determine the amount of duty of excise under Sub-section (10) within six months from the date of notice where it is possible to do so, in respect of cases falling under Sub-section (1), i.e., where no suppression of facts etc. are alleged) and within one year (substituted by two years by the Finance Act, 2016 w.e.f. 14.05.2016) from the date of notice, where it is possible to do so, in respect of cases falling under the Sub-section (4) (i.e. where suppression of facts etc. are alleged). Therefore, both the notices for personal hearing issued to the petitioner on 05.12.2017 and 05.01.2018 under Annexure-3 (Colly.) are contrary to the mandate of Section 11A of the Central Excise Act, 1944 and thus, the adjudication of the show cause notice is barred by limitation.
It is well settled in law that inordinate delay in adjudication of a show cause notice is fatal to its validity since it causes prejudice.
In Jindal Steel [2016 (5) TMI 675 - ORISSA HIGH COURT], this Court, considering the question of maintainability of writ petition, held that against any decision taken by Commissioner of Central Excise as adjudicating authority, appeal lies to appellate tribunal and accordingly dismissed the writ petition with a direction to file appeal before appellate tribunal by making pre deposit of 5% of demand.
This Court is of the considered view that the notice of show cause issued on 10.09.2008 under Annexure-2 and consequential personal hearing notices dated 05.12.2017 and 05.01.2018 under Annexure-3 (Colly.) issued after long lapse of 9 years from the issuance of show cause notice dated 10.09.2008 and the Order-in-Original dated 04.09.2023 under Annexure-9, whereby demand made in the show cause notice dated 10.09.2008 has been confirmed, cannot be sustained in the eye of law and the same are liable to be quashed and are hereby quashed.
The writ petition is accordingly allowed.
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2024 (5) TMI 932
Refund of accumulated Cenvat Credit - export of goods which are exempted from payment of duty - goods not exported under bond - rejection of refund on the ground that in view of N/N.42/2001–CE, Appellant was not eligible to export goods under bond - HELD THAT:- This issue is no more res integra. It is by now the settled law that refund of accumulated Cenvat Credit is allowable on export of goods even if they are exempted from payment of Central Excise Duty. It has also been the settled law that export under bond is only a procedure. The claim for refund should not be disallowed when the fact of export is not in dispute.
In the case of JOLLY BOARD LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2014 (3) TMI 124 - CESTAT MUMBAI], the refund claim of the party was denied by Lower Authorities on the ground that the assessee is the manufacturer of exempted goods, therefore as per Rule 6 (1) of CCR, 2004, they are not entitled to take input credit. Consequently, they are not entitled to file refund claim.
Another reason for denial of refund was that goods are not exported under bond - In the case of COMMISSIONER OF CENTRAL EXCISE VERSUS DRISH SHOES LTD. [2010 (5) TMI 334 - HIMACHAL PRADESH HIGH COURT], the Hon’ble High Court of Himachal Pradesh was also examining the similar issue. It held that input credit is allowable when exempted goods are exported under bond. Refund under Rule 5 of CCR, 2004 is allowable to the manufacturer, who exports the final products which are exempt from duty.
The Appellant is eligible for Cenvat Credit of input and input services which are used in export of goods and are exempted from payment of Central Excise Duty. In terms of Rule 5 of CCR, 2004, they are eligible for refund of accumulated Cenvat Credit attributable to export of goods. Non submission of bond is only a procedural lapse.
The impugned order cannot be sustained and is accordingly set aside - Appeal allowed.
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2024 (5) TMI 931
Cenvat Credit - Clean Energy Cess (CEC) paid on the coal imported as well as purchased in DTA, for use in their factory - levy of interest and penalties - HELD THAT:- The issue in this appeal had come up earlier before Coordinate Bench of this Tribunal and in appellant’s own case [2019 (7) TMI 764 - CESTAT HYDERABAD] where it was held that held 'The CENVAT Credit Rules have been made on exercise of powers conferred by Section 37 of Central Excise Act, 1944. However, Section 37 has not been made applicable to Clean Energy Cess. Thus, it can be seen that there was no intention to allow credit on the clean energy cess levied.' - the denial of Cenvat Credit on CEC upheld.
Interest and penalty - HELD THAT:- It is found that no interest have been demanded in the Adjudication Order. The penalty imposed is also set aside.
Appeal partly allowed.
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2024 (5) TMI 887
CENVAT Credit - input services (outward freight charges) have been used “subsequent to the place of removal” - HELD THAT:- In the present case, the Appellant has produced Chartered Accountant’s Certificate to the effect that the Appellant is responsible for delivery of the goods upto the doorstep of the buyers. This Certificate also shows that the Appellant has borne freight charges and has not passed on the burden to the buyer. Therefore, the facts are identical to the cited case of Ultratech Cement Ltd [2019 (2) TMI 1487 - CESTAT AHMEDABAD] and M/s. Sanghi Industries Ltd. [2019 (2) TMI 1488 - CESTAT AHMEDABAD] cases decided by the Ahmedabad Bench.
The Cenvat Credit is specifically denied to the Section 4 goods, since abatement is provided for the outward freight charges for arriving at the assessable value. Notably such abatement is available even if the outward freight charges are collected from the buyers as held in Ispat Industries case [2015 (10) TMI 613 - SUPREME COURT] by the Hon’ble Supreme Court - the Cenvat Credit taken on the Service Tax paid on outward freight charges cannot be denied to the Appellant.
The Appellant governed by Section 4A valuation for their clearance, cannot be denied the benefit of Cenvat Credit on the Service Tax paid on outward charges - Appeal allowed.
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2024 (5) TMI 886
Cenvat credit - Capital goods - MS items used for fabrication and structural support - It appeared to Revenue that the Appellant has availed Cenvat credit on some ineligible MS items used in construction of structures for raw mill/fly ash silo/kiln, which are further used in the manufacture of dutiable finished goods - HELD THAT:- The SCNs were issued on the basis of ruling of the Larger Bench of this Tribunal in the case of Vandana Globla Ltd vs CCE, Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)]. This ruling has been reversed by the Hon’ble Chattisgarh High Court in M/S VANDANA GLOBAL LIMITED AND OTHERS VERSUS COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, CENTRAL EXCISE [2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT], wherein it has been held that the amendment to explanation 2 to Rule 2(k) of CCR vide Notification No. 16/2009-CE(NT) is not clarificatory and only have prospective operation. Following the ruling of Hon’ble Madras High Court in the case of M/S. THIRU AROORAN SUGARS, M/S. DALMIA CEMENTS (BHARAT) LTD. VERSUS CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, THE COMMISSIONER OF CENTRAL EXCISE [2017 (7) TMI 524 - MADRAS HIGH COURT] and also the ratio in the ruling of Hon’ble Gujarat High Court in the case of MUNDRA PORTS AND SPECIAL ECONOMIC ZONE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & CUSTOMS [2015 (5) TMI 663 - GUJARAT HIGH COURT], it has been held that Cenvat credit is available on all inputs, which are used in the factory of production either as inputs or capital goods for fabrication of capital goods, which are further used for manufacture of dutiable finished goods.
Hon’ble Madras High Court in the case of India Cements Ltd vs CCE, Chennai [2015 (3) TMI 661 - MADRAS HIGH COURT], in respect of availability of Cenvat credit on MS sheets, channels and plates etc., used for fabrication of fly ash, hopper, fly ash bin and handling system, have held that Cenvat credit is available.
Thus, there is no dispute by Revenue as to receipt of the MS items in the factory of production and its further use in the fabrication of capital goods or supporting structures, without which no manufacture of dutiable finished goods can be done - the impugned order set aside - appeal allowed.
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2024 (5) TMI 857
Adjudication of show cause notice (SCN) after several year - Non/short payment of central excise duty - clearance of resin - exemption under N/N. 03/2005 dated 24.02.2005 or not - HELD THAT:- The product of the appellant was exempted from the payment of central excise duty vide Notification No. 03/2005 dated 24.02.2005 up to 28.02.2006 where after the subsequent Notification No. 07/2006 dated 01.03.2006 had withdrawn the said notification. The later notification was challenged by others involved in manufacture of the impugned resins before the Hon’ble High Court of Uttarakhand.
The Division Bench of Hon’ble Uttarakhand High Court in Commissioner Central Excise & Customs Versus M/s Dujodwala Resins & Terpenes Ltd. & another, Anil Kumar Sud, Pooran Chandra Dalakoti, M/s Sud Pines Pvt. Ltd., Rakhsh Pal Shastri [2019 (7) TMI 1692 - UTTARAKHAND HIGH COURT] allowed the special appeals filed by the department holding that central excise duty is payable on extraction of raw pine resin. These particular facts makes it abundantly clear that initially in the Year 2006 as per appellant’s own notification, the payment of excise duty on clearance of resins was exempted. It remained exempted till 28.02.2006.
No doubt subsequent to 10.07.2019, appellant is liable to pay the excise duty on clearance of resins but for the period prior the said date (the date of order of judgment by the Division Bench of Hon’ble Uttarakhand High Court). It is very much apparent on record that except for the period from 18.09.2006 to 09.11.2006, the order confirming demand was in existence, however, the order got sub juticed w.e.f. November 2006 itself and got finally decided only on 10.07.2019 - The amount of duty as was collected by the appellants during the impugned period, apparently and admittedly stand released to its buyers. Thus, present becomes a case where no excise duty was collected from the buyers, question of discharging any liability towards excise becomes redundant.
It is observed that even department could not proceed upon the show cause notices due to the ongoing litigation with respect to the impugned issue resulting into a late decision with respect to these show cause notices. The show cause notices as old as of the Year 2007, 2008, 2013 and 2014 got decided by the impugned order dated 21.09.2020. As per the statutory mandate, the central excise officer has to determine the amount of duty within 6 months of issuing a show cause notice in terms of Section 11A(11) of Central Excise Act. The adjudication in the present case, apparently is beyond several years. The show cause notices are not sustainable on this ground itself.
The order under challenge is hereby set aside - Appeal allowed.
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2024 (5) TMI 849
Reversal of accumulated Cenvat credit under Rule 11 (3) of Cenvat Credit Rules, 2004 - lapse of accumulated unutilized Cenvat credit balance by availing N/N. 30/2004-CE in terms of Rule 11 (3) of Cenvat Credit Rules, 2004 - manufacture of excisable goods texturized polyester yarn falling under 5402 of the first schedule of tariff act, 1985 and is availing Cenvat credit under Cenvat Credit Rules, 2004 - HELD THAT:- From the Rule 11 (3) (ii) it can be seen that the provision of lapsing of credit is applicable only in the case where the assessee avails the absolute exemption notification. In the present case, the respondent has admittedly availed the exemption Notification No. 30/2004- CE - the Notification No. 30/2004-CE is not absolute notification but is it is a conditional one. Therefore, the provision of lapsing of the accumulated unutilized credit as provided under Rule 11 (3) (ii) of Cenvat Credit Rules, 2004 is not applicable in the facts of the present case.
This issue has been considered time and again in various judgments. This Tribunal in the case of Welspun India Ltd [2023 (8) TMI 177 - CESTAT AHMEDABAD] where it was held that 'the appellant is neither liable to reverse the accumulated Cenvat credit of ADE (T&TA) nor the demand of the same is sustainable.'
Thus, it was held that the assessee is not required to reverse the accumulated Cenvat credit under Rule 11 (3) of Cenvat Credit Rules, 2004 when the conditional notification is availed.
The order passed by the Learned Commissioner (Appeals) is legal and correct and does not require any interference there in - the impugned order is upheld - Revenue’s appeal is dismissed.
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2024 (5) TMI 830
Condonation of delay of 445 days in filing this civil appeal - sufficient cause for delay or not - HELD THAT:- The reasons assigned are not satisfactory so as to make out a case for sufficient cause for condonation of the delay. Hence, the application seeking condonation of delay is dismissed.
The appeal is dismissed on the ground of delay.
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2024 (5) TMI 819
Recovery of central excise duty - proviso to section 11A of the Central Excise Act, 1944 with interest and penalty - HELD THAT:- The date 10.05.2022 has been wrongly mentioned instead of 25.07.2022. The rest of the averments in the said paragraph are the averments that are contained in the order dated 25.07.2022 - It is, therefore, more than apparent that the matter was heard by the Additional Commissioner on 25.07.2022 and not by Principal Commissioner, but the order has been passed by the Principal Commissioner. This clearly defies all principles of natural justice. The officer who was required to adjudicate the show cause notice should have heard the matter, but it clearly transpires from the records provided to the appellant by the department itself under the Right to Information Act that the matter was actually heard by the Additional Commissioner.
This statement made by the Deputy Commissioner is clearly contradictory to the information supplied by the department itself to the appellant under the Right to Information Act. The Deputy Commissioner should have at least looked at the Ordersheet to find out who had actually heard the matter instead of just stating that the appellant has made an incorrect and baseless statement.
The matter is remitted to the Adjudicating Authority to pass a fresh order - Appeal allowed by way of remand.
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2024 (5) TMI 810
Valuation - Inclusion of equalized handling charges from their customers on excisable goods in the assessable value - HELD THAT:- This very issue in the appellant’s sister concern i.e. MESSRS MIRA INDUSTRIES VERSUS C.C.E. -AHMEDABAD-II [2023 (4) TMI 655 - CESTAT AHMEDABAD] this Tribunal has taken a view that the handling charges recovered from the customers is not includible in the assessable value.
The facts of the above case and the case in hand are absolutely identical. Therefore, following the judgment of Mira Industries, in the present cases the handling charges is not includible in the assessable value of the excisable goods. Accordingly, the demand in this respect is not sustainable.
Appeal allowed.
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