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Central Excise - Case Laws
Showing 141 to 160 of 80320 Records
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2024 (3) TMI 554
Recovery of short paid duty alongwith interest and penalty - clearances effected on clearances of a category between July 2000 and March 2002 and between April 1999 and March 2002 - non-inclusion of ‘royalty’ and ‘administrative overheads’ in computation of cost of production computation - alleged misclassification enabling abatement in ‘retail sale price’ under section 4A of Central Excise Act, 1944 - HELD THAT:- It is evident from the submissions of Learned Chartered Accountant that rule 8 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2002 is appropriate recourse for valuation of clearances in the impugned circumstances. It is no less apparent that CAS4 is to be the basis of computation for which purpose the insight afforded by the Guidance Notes is adequate justification. That this aspect was not considered by the adjudicating authority at all, insofar as the two additions supra are concerned, is amply evident and, for remedying that want in fresh proceedings, it is necessary that the impugned order be set aside.
Appeal allowed by way of remand.
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2024 (3) TMI 553
Dropping of Extended period of limitation - restriction of demand of excise duty for the normal period - compliance with the conditions specified in the exemption N/N. 08/2014-CE dated 11.07.2014 so as to be entitle to the benefit of the concessional rate of duty prescribed therein. N/N. 08/2014-CE dated 11.07.2014 inserted Entry no.70A or not - Polyester Staple Fibre or Polyester Filament Yarn manufactured from Plastic Scrap or Plastic Waste including waste Polyethylene Terephthalate (PET) bottles - Time Limitation - Penalty - interest - HELD THAT:- As per the allegations made in the show cause notice and as admitted by Shri Suresh Kawar Jain, Managing Director of the appellant in his statement dated 14.12.2017, it is correct that the appellant had been using textile yarn waste to manufacture ‘Popcorn’, which is manufactured from different types of waste including yarn waste and is a recycled product.
The notification specifically provides for plastic scrap or plastic waste including waste Polyethylene Terephthalate bottles and even the minimum quantity of textile yarn used by the appellant cannot be included in the specification under the notification. The Adjudicating Authority is right in observing that the moment any other waste or primary material is used which does not fall in the description of the plastic scrap/plastic waste/PET bottles, the assessee goes out of the purview of the said notification.
Considering the principle of law that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession, the appellant has failed to substantiate the same. Also, if exemption is available on complying with certain conditions, the said conditions have to be complied with and as per the discussion above, it cannot be said that the appellant has complied with the mandatory conditions of the notification - the contention of the learned Counsel that the terms ‘plastic waste’ in the notification is not specific but is of general nature is rejected. The wordings of the condition provided in the notification are absolutely clear and unambiguous and leaves no manner of doubt.
Time Limitation - Penalty - HELD THAT:- The Adjudicating Authority had confirmed the demand only to the normal period as there was no suppression of facts or mis-statement on the part of the appellant and consequently, the mandatory penalty under Section 11 AC(1)(c) of the Act was held to be not leviable.
Interest - HELD THAT:- The liability to pay interest under Section 11AA of the Act on the central excise duty amounting to Rs.1,67,20,988/- being mandatory and automatic by operation of law is upheld.
There are no strong and compelling reasons to differ from the impugned order, which deserves to be upheld - appeal dismissed.
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2024 (3) TMI 552
CENVAT Credit - trading activity - exempted service - availing cenvat credit of service tax paid on certain input services which were utilized by them for manufacture as well as trading purposes (common input services) - non-maintenance of separate records - HELD THAT:- It is very clear that Hon’ble Supreme Court in CHANDRAPUR MAGNET WIRES (P) LTD. VERSUS COLLECTOR OF C. EXCISE, NAGPUR [1995 (12) TMI 72 - SUPREME COURT] has laid down that once a debit entry is made in respect of a credit entry, then the result is as if that credit entry was never made. In other words, the entire cenvat credit availed on common input services being debited before adjudication and at the time of adjudication, it was as if such credit was never availed. Now on the question whether subsequent to the activity of trading, such debit can be effected.
Hon’ble Delhi High Court has held that since the rules have not provided as to how attributable cenvat credit is to be debited and in advance it would not be known as to how much quantum of trading will take place, it is logical that the attributable cenvat credit is debited after the trading activity is over, may be once in a quarter or once in six months - the appellant had debited the entire cenvat credit availed on common input services. Therefore, it is to be treated that they had never availed such credit. When credit on common input services is not availed, the question of payment of 5% or 6% of the value of exempted services will not arise.
The confirmation of demand of Rs.2,44,54,675/- is set aside along with interest and equal penalty - Appeal allowed.
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2024 (3) TMI 494
Denial of CENVAT Credit - Input service or not - Inland Haulage Charges/Transport Charges - place of removal - HELD THAT:- The activity of transportation of goods for export is an input service provided it is availed upto the place of removal and that the service tax paid for transportation of goods upto the place of removal entitles the eligibility of availing cenvat credit there upon - Place of removal has not been defined in Cenvat Credit Rules however Section 4 (3) (C) of Central Excise Act, 1944 defines ‘place of removal’. However, Rule 2(t) of Credit Rules allowed import of definition of the terms under Excise Act for interpretation of the terms employed in the Credit Rules.
Though the exporter always need not to appoint the CHA or the clearing and forwarding agent and can fulfill all the formalities on his own but the another peculiar admitted fact of the present case is that the goods were agreed to be exported on FOB basis. FOB in shipping terms indicate who owns the goods during transit and who pays for the shipping associated fees and other freight charges. There is nothing on record to show that the appellant as manufacturer-exporter has incurred the expenditure till the time the goods are put on the vessel at the Gateway Port.
As the appellant had also impressed upon the concept of the sale, it is observed that the said aspect has already been decided by the Hon’ble Apex Court in the case of COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR VERSUS M/S ISPAT INDUSTRIES LTD. [2015 (10) TMI 613 - SUPREME COURT], the Hon’ble Apex Court in the said case has held invoices were prepared only at the factory directly in the name of the customer in which the name of the Insurance Company as well as the number of the transit Insurance Policy were mentioned. Above all, excise invoices were prepared at the time of the goods leaving the factory in the name and address of the customers of the respondent. 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.
Though the appellant has relied upon the Board Circular of 2007 and 2014 but both the circulars are prior to impugned decision in Ispat Industries Ltd. case otherwise also both these circulars stands superseded by the other circular of 2015 as relied upon by the department and of 2018 as has been issued subsequent to the decision in Ispat Industries Ltd.
The Inland haulage charges from ICD Garhi Harsaru to shipping port, Pepavav were the charges for the service received beyond the place of removal, hence, the appellant has rightly been disallowed the availment of cenvat credit thereupon. Finding no infirmity in the order under challenge, the same is hereby upheld.
Appeal dismissed.
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2024 (3) TMI 493
Activity amounting to manufacture or not - work of printed labels and printed cartons for corrugated boxes falling under Tariff Heading 48211020 and 48191010 of Central Excise Tariff Act, 1985 - manufacture and clearance of printed labels without assessing the duty involved thereon, without payment of duty and without issuing proper invoices for clearances of such goods during the period January 2007 to March 2011 - contravention of provisions of Rules, 4, 6, 8, 10, 11 and 12 of Central Excise Rules, 2002 - vague SCN - HELD THAT:- The case of the department is that the appellant is a job worker who received raw material from the customers and do the activity of printing which amounts to manufacture of finished products. However, in the show cause notice or in the Order-in-Original it is not explained by department as to which is the provision which renders the activity of printing undertaken by the appellant excisable so as to be ‘manufacture’.
The Department has construed the activity of printing to be manufacture, merely because the goods fall under tariff heading 482110. The classification of the goods or its excisability cannot be a ground for holding that the activity amounts to ‘manufacture’. The department has to establish that the activity undertaken by the appellant as per the chapter notes of Section 48 to be that of manufacture. In the present case, there is nothing brought out on record to hold that the activity of printing is “manufacture’ by chapter notes.
In the case of M/S MATCHWELL VERSUS C.C.E. -AHMEDABAD-I [2019 (6) TMI 1019 - CESTAT AHMEDABAD], the Tribunal had occasion to consider similar issue. It was held that merely because the goods are classifiable under a particular tariff heading, it cannot be said that the activity undertaken by the appellant in the nature of printing of images on paper would amount to ‘manufacture’.
In the case of HBD PACKAGING (P) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NOIDA [2013 (5) TMI 33 - CESTAT, NEW DELHI], similar issue was considered wherein it was held that the activity of printing and plastic / varnish coating of plain paperboard as per customer’s specification either purchased by assessee or received for job work does not amount to manufacture. It was held that the basic character of paper board has not changed.
Thus, the activity of printing done by the appellant does not amount to ‘manufacture’. The demand of Excise duty, interest and the penalties imposed cannot sustain. The demand, interest and penalties are set aside. The impugned order is set aside.
Appeal allowed.
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2024 (3) TMI 492
Recovery of CENVAT Credit already taken - allegation is that the Invoices under which the Cenvat Credit has been taken are not proper documents in terms of Rule 9 & Rule 11 of the Cenvat Credit Rules, 2004 - time limitation - suppression of facts or not - HELD THAT:- Admittedly, there is no dispute that the goods in question have been received by the Appellant and the same have been taken in their Stock Register and have been consumed by them in the factory premises. On going through the endorsed invoices, it is seen that the agent Krishna Chemicals has endorsed to the effect that the entire consignment in respect of the Invoices have been sold to the Appellant.
Coming to the Circular issued on 05/05/2015, it is seen that under Para 5 (iii), it has been clarified that when unregistered dealer sells the entire consignment in respect of particular invoice with endorsement to that effect, the recipient would be eligible to take the Cenvat Credit - this Circular has been issued clearly specifying that clarifications are being given after the amendments have been carried out vide Notification No. 08/2015-CE (NT) dated 01/03/2015. Therefore, the Commissioner (Appeals) is correct in taking the stand that the Circular would be effective from 01/03/2015 only cannot be applied retrospectively for the period 2012-13 and 2013-14. However, when compared the amendments carried out under Notification No. 08/2015 and the clarifications given in the Circular, it is found that this Notification No. 8/2015 has not amended any provision with regard to the endorsement to be done by un-registered dealer.
Thus, the unregistered dealer Krishna Chemicals has correctly endorsed the invoice and the Appellant has correctly taken the Cenvat Credit. Further, there is no dispute about the goods having been received and used by the Appellants. Therefore, on merits the appeal succeeds.
Time Limitation - suppression of facts or not - HELD THAT:- There are force in the arguments of the Learned Advocate that the Appellant has received the goods, taken the same in the stocks and accounted for the same in RG 23A Part I and Part II and also has declared the details in their Monthly ER-1 Returns. Therefore, the Department has not made out any case of suppression against the Appellant. Accordingly, the confirmed demand is required to be aside on account of limitation also.
Appeal allowed.
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2024 (3) TMI 491
Maintainability of appeal - non-prosecution of the case - when the matter was called neither anybody appeared nor is there any adjournment request - HELD THAT:- The appellant counsel have received the notice for hearing. However he has not shown any interest in pursuing this matter. From the facts given, it is observed that the matter is pending only for the reason that appellant/counsel on record is not responding to the notices for hearing issued making it evident that they are not interested in prosecuting this matter any further. Having allowed a sufficient number of opportunities to the appellant/appellant’s counsel for hearing, there are no reason to further adjourn this matter.
Interestingly in this case this appeal filed by the appellant was earlier also dismissed for non prosecution. Subsequently it was restored by the bench on application made by the appellant. However it is observed that that appellant chose not appear even at the time of hearing of the miscellaneous application also appellant was not represented and restoration was done in absentia. Even after restoration appellant has not shown any interest towards prosecuting this appeal. Even in response to the hearing notice no communication has been made by the appellant/ appellant’s counsel.
In case of Ishwarlal 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. In fact it can be said that the petitioner – defendant misused the liberty and the grace shown by the court. It is reported that as such now even the main suit has been disposed of.
Appeal is accordingly dismissed for non prosecution in terms of Rule 20 of the CESTAT Procedure Rules, 1982.
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2024 (3) TMI 490
Method of valuation - section 4 or 4A of CEA - Packaged Drinking Water - SSI Exemption - Eligibility for abatement Notification No.2/2006, 14/2008 and 49/2008 - threshold exemption limit of Rs.150 lakhs of all the four units crossed - failure to account details of production and clearance in daily stock account - non-issuance of invoices - non-payment of duty - Demand alongwith interest and penalty - invocation of Extended period of limitation - HELD THAT:- The whole confusion has arisen for the reason that the Notification No.2/2006-CE (NT) [noticed in para 14 above] has mentioned the chapter heading in Col. 2 as CETH 22019090 as well as 22011010. As per the Tariff Act, Heading 22011010 applies to ‘Mineral Waters” and Heading 22019090 applies to ‘Packaged Drinking Water’. However, the description in column (3) of the notification is given as “Mineral Waters”. The department has therefore held that the ‘Packaged Drinking Water’ would fall within the category of ‘Mineral Water’.
A product has to be classified on the basis of Tariff Act and not on the basis of the notifications. The present notifications are Central Excise Notifications giving the details of abatement in regard to valuation of goods under Section 4A. Merely because the chapter heading, sub heading has been mentioned in Col. 2, the goods cannot be said to be assessed under Section 4A unless the goods also fall under the description given in Col.3. At the cost of repetition, in Column 3 of Notification No.2/2006, 14/2008 and 49/2008, the description of goods is given as ‘Mineral Water’ only. The process of manufacturing Mineral Water and Packaged Drinking Water is different. From the Circulars issued by the Board, it can be seen that when no minerals are added to the water, it cannot be classified as mineral water. So also, it is clarified by the Board that when the water is demineralized by reduction of minerals the same would form ‘artificial mineral water’.
The Packaged Drinking Water is entirely different product falling under separate chapter sub-heading. Further, the price of Packaged Drinking Water is less than the price applicable to Mineral Water. Again, BIS specification for Mineral Waters is different from that of Packaged Drinking Water. The appellant has been issued BIS certification for packaged drinking water as IS 14543.
The valuation of the product has to be based upon the classification of the product. When the classification unambiguously falls under 22019090 the valuation has to be on transaction value as per Section 4 of Central Excise Act, 1944. Merely because the abatement notification mentioned heading 22019090 in column (2) it cannot be said that the Packaged Drinking Water is included in the Mineral Waters. Interestingly, the department does not dispute the classification adopted by appellant for ‘packaged drinking water’. However, department construes that packaged drinking water is mineral water as per notifications 2/2006, 14/2008 and 49/2008. These notifications are issued under subsection (1) and (2) of Section 4A - The department is of the view that sub-heading 22019090 applicable to packaged drinking water when mentioned in column (2) of the notification, it is implied that packaged drinking water is to be included in the category of mineral water. This view cannot be endorsed with.
Taxation statutes cannot be interpreted on any presumptions or assumptions. In other words, there is no implied power of taxation. It has often been held by courts that subject goods is not to be taxed, unless the words of the statute unambiguously impose a tax. An ambiguity in a taxation provision is to be interpreted in favour of assesee.
In Notification 49/2008, the Sl.No.24 referred to ‘Mineral Water’ and Sl.No.25 to ‘Aerated Water’. As per amendment brought forth in Notification 49/2008 w.e.f. 1.3.2015, a new Sl.No.25A was added which referred to ‘all goods except mineral water and aerated water’. This makes it clear, that ‘drinking water’ was never intended to be specified as goods to which Section 4A would apply - the duty demand cannot sustain.
Time Limitation - Penalty - HELD THAT:- The issue is purely interpretational in nature. Further, there were earlier notices issued to the appellant on the very similar set of facts. In other similar matters, the department has set aside demand and taken the view that Packaged Drinking Water cannot be assessed under Section 4A of the Act ibid. For these reasons, the invocation of extended period cannot sustain. For the same reasons, the penalty imposed on the Executive Director of appellant-company is not warranted and requires to be set aside.
The impugned order is set aside - Appeal allowed.
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2024 (3) TMI 489
Reversal of CENVAT Credit - duty paying document - reversal sought on the ground that while WCMIL was not eligible to take Cenvat credit as the same was imported by M/s. Neo Metaliks Limited (NML) who had paid the CVD - it is alleged that invoice issued by WCMIL is not a proper document for availing the Cenvat credit - HELD THAT:- If the department had any dispute that WCMIL was not eligible to take Cenvat credit of the CVD paid by NML, it was for the Department to initiate action against WCMIL. From the appellant’s side, they have received the invoices from WCMIL and after finding that Excise Duty payments have been properly recorded in the invoices, they have taken the Cenvat credit. After converting the cooking coal to Metcoke, treating this activity not as a mere job work, but as a jobwork amounting to manufacture, they have paid the Excise Duty on the finished goods by way of PLA and RG-23A part-II as recorded by the Commissioner(Appeals).
There are no reason to interfere with the considered order passed by the Commissioner(Appeals) - appeal of Revenue dismissed.
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2024 (3) TMI 488
Liability to pay interest on the goods cleared to their sister unit in terms of proviso to Rule 9 read with Rule 8 of the Valuation Rules, 2000 - duty was levied @ 110% of the cost of production determined on the basis of annual CAS-4 certificates/guidelines of stock transferred goods in accordance with CBEC Circular No.692/08/2003-CX dated 13.02.2003 - Revenue Neutrality - HELD THAT:- The only argument that the Ld.Commissioner has been able to make out in his order is the proposition that “since the value of goods could not be determined at the time of clearance, the appellant could have opted for provisional assessment for delayed payment of duty, interest as automatic and is better considered as compensation”. For these findings, the Ld.Commissioner has relied upon the Hon’ble Supreme Court’s pronouncement in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS INTERNATIONAL AUTO LTD. [2010 (1) TMI 151 - SUPREME COURT].
At the outset it may be pointed out that the aforesaid two situations relied upon by the Ld.Commissioner(Appeals) do not cater to a situation of revenue neutrality and are concerned where price revision had happened and duty short paid was subsequently paid by way of supplementary invoices raised in favour of the customers to whom the goods were sold form the factory gate. There is marked difference with the scenarios and for this reason, the aforesaid Supreme Court’s decisions are not applicable to the facts of the present case.
It is not deniable that there ought to be an adjustment of excess duty paid against the cases of short payment of duty. However, the appellant is not seeking any such interference at this stage. It is a fact that ignoring duty paid in excess and only considering the duty that has been short paid would lead to an anomalous situation where it would tantamount to retention of undue tax by the Government in clear violation of the stipulation of Article 265 of the Constitution.
Revenue Neutrality - HELD THAT:- There are series of cases wherein it has been held that in a revenue neutral situation demand for duty does not arise - Reliance can be placed in the case of Hindalco Industries Ltd. v. CCE, Bhubaneswar-II [2023 (5) TMI 720 - CESTAT KOLKATA].
Further, even if the disputed amount of duty is paid by the appellant, question of saddling them with payment of interest clearly does not arise.
In the present matter, no case has been made out by the department - the order of the lower authority set aside - appeal allowed.
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2024 (3) TMI 453
CENVAT Credit - reversal of 6% of the value of the goods - adoption of hybrid option of post clearance availment of Ineligible CENVAT credit on inputs and payment of amount equal to 6% of the value of such exempted goods under rule 6(3) of the Credit Rules - benefit of the exemption Notification No. 30/2004-CE - HELD THAT:- Once the assessee has reversed the 6% of the value of the goods treating such goods as exempted as per the sub-rule (3D) of the rule 6 of the Rules, the condition of the Notification No. 30 of 2004 can be said to have been met and in such circumstances, the Tribunal has rightly allowed the appeal of the respondent-Assessee by quashing and setting aside the demand raised by the appellant.
Thus, no question of law, much less any substantial questions of law, arises from the impugned order passed by the Tribunal - appeal dismissed.
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2024 (3) TMI 452
Order for provisional assessment on quarterly basis and on the basis of CAS-4 certificate for a particular quarter - presumptive order - HELD THAT:- There is a loss to understand how learned Commissioner (Appeals) has come to a conclusion that the said observations were on the basis of fact because there is no supporting data available either in the orders ordering provisional assessment nor is it available anywhere in the order passed by Commissioner (Appeals).
The impugned order is a presumptive order - impugned order is set aside - appeal allowed.
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2024 (3) TMI 451
Levy of penalty under Rule 26 of Central Excise Rules, 2002 - failure to register with Central Excise - failure to maintain any record - failure to file returns - failure to make payment of central excise duty on inlay cards - HELD THAT:- The explanation in N/N. 83/94-CE dated 11.04.1994 states that for the purpose of the said notification, the expression ‘job work’ means processing of or working upon raw materials or semi-finished goods supplied to the job worker so as to complete a part or whole of the process resulting in the manufacture or finishing of an article or for operation which is essential for the aforesaid process. M/s. Leo Pack was a job worker to whom raw materials were supplied by M/s. MEC Engineers for cutting the PVC rigid roll into smaller pieces and piercing the same to make it ready for display of jewellery and, therefore, we are satisfied that the activities carried out by M/s. Leo Pack was job work. The said Notification No. 83/94-CE which exempts the goods manufactured in a factory at job work from the whole of the duty of excise leviable thereon provided that the procedures set out in the said notification and in Notification No.84/94-CE are complied with.
M/s. Leo Pack was job worker for M/s. MEC Engineers and M/s. Leo Pack was not required to pay central excise duty on the job work - the impugned order is not sustainable insofar as the same relates to confirmation of demand and imposition of penalty on M/s. Leo Pack.
Appeal allowed.
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2024 (3) TMI 450
Reversal of CENVAT Credit - commission amount paid to commission agent - Business Auxiliary Service or not - Extended period of limitation - HELD THAT:- The issue is no more res integra. This Bench in PRINCIPAL COMMISSIONER OF CENTRAL EXCISE, KOLKATA – IV VERSUS M/S. HIMADRI SPECIALITY CHEMICAL LIMITED [2022 (9) TMI 1213 - CALCUTTA HIGH COURT] has held the issue relating to eligibility of credit on commission agent services is no longer res-integra inasmuch as this Tribunal in M/S ESSAR STEEL INDIA LTD. VERSUS COMMISSIONER OF C. EX. & SERVICE TAX, SURAT-I [2016 (4) TMI 232 - CESTAT AHMEDABAD], as also relied by the appellant, has held that the above amendment would be applicable retrospectively and would cover cases for the past period also.
Extended period of limitation - HELD THAT:- The Department was in full knowledge of the transactions made by the Appellant by May 2014 itself. Therefore, the Department had no reason to delay the issue of Show Cause Notice by another two and half year. The Department has not made out any case of suppression on the part of the Appellant except for relying on the COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD – II VERSUS M/S CADILA HEALTH CARE LTD. [2013 (1) TMI 304 - GUJARAT HIGH COURT] relied by the Hon’ble Gujarat High Court. Therefore, the confirmed demand is not sustainable even on account of limitation.
Appeal allowed.
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2024 (3) TMI 449
Levy of interest under Section 11AB of the Central Excise Act, 1944 on supplementary invoices by invoking extended period of limitation - appellant has availed irregular cenvat credit as well as failed to pay the duty on certain goods on certain instances - HELD THAT:- The said issue has been dealt by this Tribunal in the case of CCE VERSUS TVS WHIRLPOOL LTD. [1999 (10) TMI 701 - SC ORDER] wherein it has been held that it is only a reasonable time that the period of limitation that applies to a claim for the principal amount should also apply to the claim for interest thereon and further in the case of HINDUSTAN INSECTICIEDES LTD. VERSUS COMMISSIONER CENTRAL EXCISE, LTU [2013 (8) TMI 225 - DELHI HIGH COURT], again the said issue was examined by the Hon’ble Delhi High Court wherein the Hon’ble High Court has held A reading of the aforesaid paragraph would show that in the said case notice of payment for interest was issued after four years and it was held that it was beyond a reasonable period and the department could recover the amount from the Assessing Officer, who had not taken steps for four years and not from the respondent-assessee therein. The finding of the Supreme Court on interpreting the applicable Act was that no limitation period was prescribed, therefore, proceedings for recovery could be initiated within a reasonable time.
The extended period of limitation is not invokable for the facts and circumstances of the case as the appellant has paid the duty on the supplementary invoices during the period 2008-09 and the same shown in their records and audit was also conducted during the period from 15.11.2009 to 03.12.2009.
The extended period of limitation is not invokable. Consequently , the demand of interest on supplementary invoices is barred by limitation.
The impugned order quo demanding interest on the duty paid on supplementary invoices set aside - appeal allowed.
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2024 (3) TMI 448
Recovery of CENVAT Credit alongwith interest and penalty - Process amounting to manufacture or not - Appellants are importing copper coated wires and they were carrying out processes like cutting, rewinding, branding, testing and repacking on the same - HELD THAT:- The issue is no more res integra. The Mumbai Tribunal in M/S. GEE LTD. AND S.M. AGARWAL VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE-I [2022 (10) TMI 957 - CESTAT MUMBAI] in the appellant’s own case has followed the judgement of Hon’ble Bombay High Court in the case of Commissioner of Central Excise, Pune-III vs. Ajinkya Enterprises and has held the demand made seeking to recover the Cenvat credit from the appellants which is in respect of the processed goods actually cleared by them on payment of central excise duty has to be set aside.
The demand set aside - appeal allowed.
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2024 (3) TMI 447
Clandestine removal - failure to declare the manufactured quantity - reliance placed on consumption norms worked out by Dr. Batra of IIT, Kanpur - main ground taken by the Revenue was that the electricity consumption as worked out by Dr.Batra, of IIT, Kanpur does not match with the output shown by the Appellant - Extended period of limitation - HELD THAT:- From the Order-in-Original para 9.2 it is seen that the Adjudicating authority has relied on the report of Dr.Batra of IIT, Kanpur to come to a conclusion that excess quantity has been manufactured and cleared without payment of excise duty. There is nothing to indicate in the Show Cause Notice and the Order-in-Original that the Department has brought in any corollary evidence to the effect that the Appellants have procured raw materials on cash basis or cleared the goods on cash basis and no private records have been seized nor any investigation has been taken up on this ground.
In the case of COMMISSIONER OF C. EX., MEERUT-I VERSUS RA CASTINGS PVT. LTD. [2010 (9) TMI 669 - ALLAHABAD HIGH COURT], the Hon’ble Allahabad High Court has held we are of the view that the findings of the Tribunal are based on the material on record and they cannot be said to be without any material and perverse. We find that the Revenue has invoked the proviso to Section 11A(1) of the Act but no case has been made out in the show cause notices or in the adjudication order that there were any mis-statement, suppression of fact or fraud on the part of the respondents. No substantial question of law arises from the order of the Tribunal.
The facts in the present case are similar and hence, the ratio of the decision is squarely applicable. Therefore, following these decisions, the confirmed demand is not sustainable on merits. Accordingly, the Appeal allowed on merits.
Extended period of limitation - HELD THAT:- There are force in the Appellant’s argument that the Department has not come out with any evidence towards suppression so as to invoke the extended period provisions. Therefore, the confirmed demand for the extended period is liable to be set aside on account of limitation. Accordingly, the confirmed demand for the extended period is set aside on account of limitation also.
The Appeal is allowed both on merits as well as on limitation.
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2024 (3) TMI 446
CENVAT Credit - inputs used in such Railway tracks - nexus with manufacturing and clearing activities or not - HELD THAT:- Hon’ble Chhattisgarh High Court in the case of PR. COMMR. OF CUS. & C. EX., RAIPUR VERSUS STEEL AUTHORITY OF INDIA LTD [2018 (2) TMI 2007 - CHHATTISGARH HIGH COURT], has held After hearing Learned Counsel for the parties, we are not able to persuade ourselves to take any different view of the matter than the one which has been taken by this Court in the matter of AMBUJA CEMENTS EASTERN LTD. VERSUS COMMISSIONER OF C. EX., RAIPUR [2010 (4) TMI 429 - CHHAITISGARH HIGH COURT] where Welding Electrode has already been considered to be input for allowing CENVAT Credit.
Appeal filed by Revenue dismissed.
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2024 (3) TMI 402
Process amounting to manufacture or not - benefit availed on Henko Stain Champion’ Detergent Powder cleared from the factory on payment of duty in cash - Denial of benefit of N/N.21/2007-CE dated 25.04.2007 on the ground that goods which have been subjected to packing or repacking only and is not subject to any other process amounting to manufacture - Invocation of Extended period of Limitation - HELD THAT:- At the time of filing of the refund claim by the appellant in terms of Notification No.32/99-CE dated 08.07.1999, the refund claims were sanctioned by passing a speaking order during the period from 25.04.2007 to 31.01.2008. In that circumstances, a showcause notice issued to the appellant by invoking extended period of limitation on 15.03.2012, is not sustainable as held by the decision of the Hon’ble Jammu & Kashmir High Court in the case of COMMISSIONER OF CENTRAL GST AND CENTRAL EXCISE VERSUS KRISHI RASAYAN EXPORTS PVT. LTD. [2023 (7) TMI 661 - JAMMU AND KASHMIR AND LADAKH HIGH COURT], wherein the Hon’ble High Court has held The revenue, if it is of the opinion that the Adjudicating Authority has made an erroneous refund in favour of assessee to which it was not otherwise eligible, can avail the remedy of filing appeal or revision under the Act. So long as the orders stand as having attained finality, the same cannot be tampered with by the Adjudicating Authority by launching collateral proceedings purportedly under Section 11A of the Act.
As this case also, the demand has been raised against the appellant by invoking extended period of limitation whereas initially, the refund claims were sanctioned to the appellant by passing a speaking order, therefore, the extended period of limitation is not invokable. Accordingly, the impugned demand is set aside.
Appeal allowed.
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2024 (3) TMI 401
Area Based Exemption - Rejection of application for special rate of value addition at the rate of 73% - payment of excise duty through PLA after utilizing the CENVAT credit available as per N/N. 20/2007-CE dated 25.04.2007 - HELD THAT:- From formulae prescribed in N/N. 20/2008-CE dated 27.03.2008, it is clear that for fixation of special valuation rate, the actual cost of raw materials is to be considered only not the notional value. In that circumstances, as the Adjudicating Authority has considered the notional cost of raw materials, which is not correct, therefore, the impugned order is set aside.
The impugned order set aside - Appeal allowed.
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