Advanced Search Options
Central Excise - Case Laws
Showing 181 to 200 of 80313 Records
-
2024 (3) TMI 5
Entitlement to interest on account of delay in sanctioning the eligible refund in cash - Refund of unutilized cenvat credit claimed by the Appellant on export under LUT/ Bond - accumulation of credit on account of exports - amalgamation and merger of company - Cenvat credit utilized by the appellant during the quarter April, 2011 to June, 2011 was higher than the cenvat credit availed by it during the said quarter - possibility of adjusting the accumulated credit if the appellant had exported the goods on payment of duty - HELD THAT:- Though the appellant has filed the refund claim under Rule 5 for accumulated cenvat credit against export of goods but subsequently they have utilized the credit, hence, now they are not claiming the refund, however, they are claiming the interest for the period from the date of filing of application till the date of utilization of cenvat credit for which the refund claim was lodged - to decide the claim of interest first the eligibility of refund has to be decided.
From the records it is observed that both the lower authorities have rejected the refund claim on the ground that the appellant’s refund claim is in respect of the amount of cenvat which was transferred from M/s. Hazira Pipe Mill Ltd and Hazira Plate Ltd on account of amalgamation and merger of those companies in the present appellant’s company. However, from the chart presented by the appellant it prima facie shows that the credit of 205 Crores included in the credit availed shown in August, 2010 and October and November, 2010 was on account of transfer of credit due to amalgamation and merger and thereafter, it can be seen that the entire credit of 205 Crores has been utilized between December, 2010 to March-2011. This prima facie shows that the refund claim for the period April 2011 to June, 2011 appears to be the amount out of the fresh credit availed after the utilization of transferred credit. However, the details given in the chart along with documents were not verified by both the lower authorities which is necessary to come to the conclusion that whether the refund amount is related to the transferred credit or from the credit in respect of input and input service used in the manufacture of export goods.
As regard the claim of interest firstly the same is consequential to the eligibility of refund in the facts of the present case. Secondly, the claim of interest also needs to be considered independently, therefore, the entire matter needs to be remitted back to the original adjudicating authority.
Appeal is allowed by way of remand to the Adjudicating Authority.
-
2024 (3) TMI 4
Redetermination of annual production capacity w.e.f. 01.11.2012 in terms of Rule 6 of Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination And Collection of Duty) Rules, 2010 - seeking to declare the packing machines as uninstalled and sealed - HELD THAT:- Rule 4 of CER says that number of operating packing machines during any month shall be equal to the number of packing machines installed in the factory and if the manufacture doesn’t intent to operate any of those machines, Rule, 5 prescribes that uninstallation and sealing as well as removal from the factory premises was to be done by and under the supervision of Superintendent of the Central Excise but it’s proviso permits nonremoval from the factory premises only when it is not feasible to remove and in such an event it has been to be un-installed and sealed by the Superintendent in a manner that it can’t be operated.
It is not understood as to why Appellant was fastened with the liability to pay duty on the basis of number of packing machines available with him, when its uninstallation and sealing were duly made and Rule 8 is not violated, since calculation of the number of operating packing machines for a month is restricted to the maximum number of packing machine “installed”, apart from the fact that Circular No. 81/17/2007/CX-3 dated 20.04.2010, relied upon by the Appellant, issued by the Respondent-Department dictates not to take machines sealed by the Departmental Officer for the purpose of calculation of payment of duty.
The order passed by the Commissioner of Central Excise (Appeals), Pune-III is hereby set aside - Appeal allowed.
-
2024 (3) TMI 3
CENVAT Credit - freight charges incurred from their factory premises to the factory premises of the buyer - place of removal - extended period of limitation - suppression of facts or not - HELD THAT:- In this particular case, without doubt the ‘place of removal’ is the factory premises of the Appellant only. Therefore, if the party has failed to claim any abatement on account of the freight charges incurred by them from their factory premises to premises of the receiver of the goods, the same cannot be come to the rescue in respect of the Cenvat Credit to be taken. Rule 2 (l) of the Cenvat Credit Rules, 2004, is very clear that the Cenvat Credit can be taken for the services utilized ‘upto the place of removal’ only. Therefore, there are no merits in the Appeal filed by the Appellant.
Suppression of facts - HELD THAT:- Admittedly, they have been paying the Service Tax on the freight charge and reflecting the same in the ST-3 Returns. For the Cenvat Credit taken on such Service Tax paid on GTA, they were filing their ER-1 Returns. Therefore, there cannot be any allegation of suppression on the part of the Appellant. Apart from this, it can also be taken as a case of interpretation. The Appellant has carried a bonafide belief that since they are paying the Excise Duty of the value which is inclusive of the freight charges, they would be eligible for the Cenvat Credit for the Service Tax paid on GTA Services for the outward transport - the allegation of suppression does not legally sustain.
The Appeal is allowed on account of limitation.
-
2024 (2) TMI 1303
SSI Exemption - classification of goods - manufacturing articles of rubber - goods conforming to description corresponding to tariff item 4008 1110 of Schedule to Central Excise Tariff Act, 1985 was sought to be re-classified against tariff item 4008 1190 of Schedule to Central Excise Tariff Act, 1985 - HELD THAT:- Taking up the issue of classification as it is contingent upon resolution thereto that the discarding of claim for exemption available to ’small scale industry (SSI) will become relevant. At the outset, particular emphasis laid on the rigours of classification, within the framework of General Rules for Interpretation of the Schedule appended to Central Excise Tariff Act, 1985 and judicial determination, which forecloses admission in statements from having anything but peripheral influence on the exercise.
In the absence of any exposition of description corresponding to the proposed classification, it is well nigh impossible to approve the manner in which the adjudicating authority has proceeded.
Though there is elaborate discussion on the purported evidence, such as formulation found in private records, admission in statements that these reflected reality and samples sent for testing, the key to the findings are the reports of tests from Deputy Chief Chemist, Vadodara on the composition of the ‘end product’ as being polyethylene. This, along with the conclusion that the product is ‘not rubber’, led to the re-classification insofar as the appellant-assessees are concerned. While the presence of ‘polyethylene’ does fulfill the requirements of note 1 in chapter 39 of Schedule to Central Excise Tariff Act, 1985 and has not been controverted, there is abundantly less certainty on the conclusion in the test report of ‘no rubber’ especially when concatenated with the findings in the impugned order that ‘rubber’ was consumed in the production process.
The grounds of appeal preferred in the challenge mounted by Revenue to the impugned order confirms the need for re-determination. On the outcome of fresh determination also rests the appropriateness of penalty imposed on the individual-appellant. For those purposes, the impugned order is set aside and notice restored to the original authority for fresh decision on claim of appellant-assessees.
Matter remanded on issue insofar as appellant - assessee is concerned, the appropriate disposal of this appeal of Revenue too is re-determination of the dispute by the original authority - the appeals allowed by way of remand.
-
2024 (2) TMI 1302
CENVAT Credit - duty paying documents - fraudulent transactions - eligibility of the credits availed by the Appellant on the basis of invoices issued towards purchase of sandalwood oil - HELD THAT:- Receipt of inputs as such by the Appellant and duty paying documents in conformity to Section 9 of the CENVAT Credit Rules are material for the purpose of determination of its eligibility to avail the credits. The inputs were supposed to be sandalwood oil but what was being transported/supplied were actually nothing but “plain water”, as noted by learned Commissioner in para 2.4 of his order describing content of search report for the 1475 kg of crude sandalwood oil, which were found in sealed condition and bound in wooden crates with airport security seal intact but when broke open and verified was found to be plain water only.
The sandalwood oil imported by him were of pure variety and there is nothing in trade known as crude sandalwood oil but for the purpose of certain rectification, method of distillation is applied so also in the case of Patchuli Oil. M/s J.G. Spices Ltd. was one of his customer to whom he supplied imported sandalwood oil and Patchuli oils in containers in the same sealed condition without any further processing. Being confronted with the fact that during search and seizure made by DGCEI of the stock of raw materials and finished group available at M/s J.G. Spices Ltd. premises representative sample were drawn from each container and Directorate of Forensic Science report was called for vide letter dated 29.09.2010 and it conformed the material content was nothing but “water” to which the Appellant’s reply was that they used to open the container, upon receipt and even Customs Officer do so before clearance but the cap of the drums were only put back without re-sealing.
There are no hesitation to come to the conclusion that goods were imported in sealed condition, taken to M/s. J.G. Spices Ltd., Meghalaya and kept therein also in sealed conditions and again returned back to different traders including the Appellant in sealed conditions affixing transit permit, railway freight invoices and in the process additional Excise Duty which was VAT component of State’s tax collected by Union and Central Excise duty both were realized at both the points by the supplier and purchasers respectively causing loss to the State exchequer.
The Appellant had not purchased sandalwood oil from M/s J.G. Spices Ltd. through those invoices and the goods transportation documents would not absolve the Appellant from its liability that the inputs against which credits availed were in fact not valid inputs namely sandalwood oil - Appeal dismissed.
-
2024 (2) TMI 1301
CENVAT Credit - clearance of inputs as such - recovery of credit alongwith interest and penalty - sub-rule (5) of Rule 3 of Cenvat Credit Rules, 2004 - HELD THAT:- On going through decision of this Tribunal in the case of THE COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS AJINKYA ENTERPRISES [2012 (7) TMI 141 - BOMBAY HIGH COURT]. In the said case, cenvat credit was availed and after processing of inputs, the same was utilized towards payment of duty and subsequently it was held that the process which was undertaken did not amount to manufacture and, therefore, the said clearances did not attract central excise duty. Under those circumstances, it was held that since the duty payment was accepted by Revenue, the availed cenvat credit cannot be reversed. Such circumstances are not available in the present case. Therefore, the ruling in the said case is not applicable in the present case.
Insofar as the impugned order is concerned in respect of the allowance of cenvat credit of Rs.5,63,66,047/- is concerned, there are no infirmity with the same - that part of the impugned order through which cenvat credit of Rs.5,63,66,047/- was disallowed is not interfered and is ordered to be recovered along with interest and equal penalty.
Demand of Rs.1,18,45,107/- - HELD THAT:- The appellant was eligible to debit proportionate cenvat credit attributable to trading activity and we also find that such debited amount of Rs.3,44,773/- was appropriated by the original authority - the impugned order in respect of demand of Rs.1,18,45,107/-, interest and penalty is set aside.
The penalty imposed on Shri Vijay S. Nair, Managing Director is set aside, and there are no omission or commission on his part in causing any loss to the exchequer.
Appeal allowed in part.
-
2024 (2) TMI 1300
CENVAT Credit - input services - refilling of gases from bulk containers to retail containers and conversion from liquid state to gaseous state amounts to manufacture or not - credit availed on input services has been denied alleging that the appellant has not been able to establish nexus of the input services with the manufacturing activity - HELD THAT:- When the services qualify as input services, the credit ought to be allowed unless there is discrepancy in the payment of Service Tax or in regard to the documents. There is no such dispute in this case. In the present case, the services availed are in the nature of inward and outward transportation of the goods. This is essential services for the manufacturing activity. Further, there is no requirement for an assessee to furnish one-to-one co-relation of the input services and the credit availed.
There are no merits in the view taken by the Adjudicating Authority in denying the credit availed on input services. Recently, the Larger Bench in the case of M/s. Ramco Cements Limited Vs. Commissioner of Central Excise, Puducherry [2020 (6) TMI 794 - CESTAT CHENNAI] had held that the credit availed on outward transportation services is eligible when the freight charges are included in the taxable value.
The disallowance of credit on input services and the confirmation of the demand in this regard without basis are requires to be set aside - Appeal allowed.
-
2024 (2) TMI 1251
Seeking permission to withdraw the present appeal - Cum-duty benefit - it was held by High Court that Since the taxes were paid by the respondent-assessee on the goods as per the explanation to Section 4(1), the assessee was entitled to cum-duty benefit - HELD THAT:- The Civil Appeal is dismissed as withdrawn.
-
2024 (2) TMI 1250
Maintainability of appeal - Appellate jurisdiction - HELD THAT:- This appeal can be disposed of on the short ground that the Custom, Excise and Service Tax Appellate Tribunal (the CESTAT) in exercise of its appellate jurisdiction has allowed the appeal filed by the Department without giving any reason whatsoever. For the reason that the decision is not accompanied by reasons, the judgment and order passed by the CESTAT is set aside and matter remanded back for consideration and passing appropriate orders giving reasons for its order.
Appeal disposed off.
-
2024 (2) TMI 1249
Principles of unjust enrichment - Refund amount ordered to be credited to the Consumer Welfare Fund instead of being paid to the appellant - HELD THAT:- The appellant paid the disputed amount as differential duty after the SCN was issued and it was not paid at the time of clearance of the goods nor was an invoice raised for this amount at that time. It is also an admitted fact that the appellant had attempted to recover the differential duty from its customers M/s Bharat Broadband Network Ltd. by issuing a supplementary invoice, but the customer refused to pay it on the ground that central excise duty @ 10.3% was already paid as per the purchase order and the differential duty paid after calculating excise duty at the higher rate of 12.36% was not required to be paid by it.
The appellant had borne the burden of the differential duty and had not passed it on to its customer or to anyone. Thus, the appellant’s case falls squarely under Clause (e) of the third proviso to section 11B of the Central Excise Act, 19445, i.e., the duty of excise and interest paid on such duty were borne by the appellant manufacturer and it had not passed on the incidence of such duty and interest to any other person.
The appellant is entitled to the refund of the amount sanctioned which should be paid to it instead of it being credited to the Consumer Welfare Fund. Needless to say the consequential interest must also be paid as per section 11BB.
The refund amount along with interest under section 11BB should be paid to the appellant instead of being credited to the Consumer Welfare Fund - the impugned order is set aside - appeal allowed.
-
2024 (2) TMI 1248
CENVAT Credit - common inputs/input services used for manufacture of stock transferred exempted goods (lime stone) and dutiable products (Cement/Clinker) - non-maintenance of separate accounts as required under Rule 6(2) of Cenvat Credit Rules, 2004 - liability to pay an amount of 5%/6% of the value of exempted goods (stock transferred lime stone) as under Rule 6(3)(i) of Cenvat Credit Rules, 2004 - Time Limitation - HELD THAT:- The lime stone stock transferred being exempted product there is no question of payment of duty or consequent availment of credit by receiving unit. When appellant has used common inputs/input services for stock transferred limestone, appellant has to maintain separate accounts. The appellant not having maintained separate accounts and not having exercised any option under Rule 6(3), the demand raised invoking Rule 6(3)(i) is legal and proper.
The decision of the Hon’ble Apex Court in the case of JAYPEE REWA CEMENT VERSUS COMMISSIONER OF CENTRAL EXCISE, MP [2001 (8) TMI 1332 - SUPREME COURT] is referred by Ld. Consultant to argue that lime stone is only an intermediate product and cannot be considered as a final product. The issue that was considered in the said case was whether Modvat credit is eligible on explosives used for extraction of limestone which is the raw material used in manufacture of cement. The Hon’ble Court was considering the applicability of Rule 57A of erstwhile Central Excise Rules, 1944. The assesse therein contended that explosives used in the mining operation must be regarded as inputs. The Tribunal came to the conclusion that as the inputs (explosives) had not been brought into the factory and had been used in the mines outside the factory are not eligible for credit. The Hon’ble Apex Court held that even in respect of inputs used in the manufacture of intermediate product, which product is then used for manufacture of a final product (Cement) the credit is eligible. The issue in the case on hand is not on the eligibility of credit on explosives, and not applicable.
In the case of VIKRAM CEMENT VERSUS COMMISSIONER OF CENTRAL EXCISE, INDORE [2006 (1) TMI 130 - SUPREME COURT] the question that was considered was again the eligibility of credit on explosives used in captive mines. The Hon’ble Apex Court held that the credit would be eligible and that the decision in the case of M/s.Jaypee Rewa Cement would apply. It was also held that CENVAT Rules in effect substituted the Modvat Rules. The issue on hand is not eligibility of credit on explosives used in captive mines, and therefore not applicable.
Time Limitation - Penalty - HELD THAT:- The appellant had periodically filed returns and disclosed the credit availed by them. Further, the demand has been raised on the basis of the accounts maintained by the appellant. The appellant has maintained proper delivery challans and documents for the amount of lime stone stock transferred. There is no positive act of suppression established by the department. Further, the department for the period 1/2017 to 6/2017 has set aside the demand interpreting the issue in favour of appellant - there are no grounds for invoking the extended period. The issue on limitation is answered in favour of appellant and against the Revenue - Being stock transfer of limestone to appellant’s own units, and also of interpretational nature, the penalties are to be set aside entirely. The appellant is liable to pay duty along with interest for the normal period.
The impugned order is modified to the extent of upholding the demand and interest for the normal period only. The penalties for normal period is set aside - The appeal is partly allowed.
-
2024 (2) TMI 1185
Maintainability of appeal - all the issue related to question of fact - Clandestine removal - Whether CESTAT has erred in not appreciating the suppression of production arisen on calculating annual electricity consumption which shows that there was excess production of excisable goods as compared to the productions reflected in their statutory records?
HELD THAT:- All the questions which the appellant has raised in the present appeal, are essentially questions of fact and there is no question of law as such which is required to be adjudicated by this Court.
Taking into consideration the concurrent findings of fact, this appeal need not be entertained.
The appeal stands dismissed.
-
2024 (2) TMI 1158
Liability of Excise duty equal to Special Additional Duty of customs (SAD) under Section 3(5) of the Customs Tariff Act 1975 - Intraocular Lens cleared to DTA - SCN dated 2-6-2015 issued under Section 11A (1)/ (5) of the Central Excise Act 1944 is without jurisdiction since the said Section 11A (5) stood omitted with effect from 14-5-2015 - Extended period of limitation - suppression of facts or not - HELD THAT:- The exemption under N/N. 23/2003-CE is not required and further that the goods cleared in DTA, if imported, were also exempt from SAD under Sr. No.1 of N/N. 29/2010-CUS dated 27-2-2010 up to 16-3-2012 and thereafter under Sr. No.2 of N/N. 21/2012-Cus dated 17-3-2012 since the same are pre-packaged goods for retail sale to which provisions of Legal Metrology Act and Rules apply. Therefore, excise duty equal to SAD payable under the Proviso to Section 3 (1) of the Central Excise Act 1944, will be NIL. Consequently, the exemption under N/N. 23/2003-CE is not required.
It is thus clear that exemption from Excise duty equal to SAD under Notification No.23/2003-CE is not required since the said goods if imported are exempt from SAD and therefore Excise duty equal to SAD payable under the Proviso to Section 3 (1) of the Central Excise Act 1944, will be NIL.
The Show Cause Notice dated 27-5-2015, which is purportedly issued under Section 11A(1)/A (5) of the Central Excise Act 1944 was barred by time and not maintainable in law. If the Notice is purported to be issued under Section 11A(1), the same is barred by time, having been issued beyond the period of one year then specified in Section 11A (1). If the Notice is purported to be issued under Section 11A (5), the same is not maintainable in law, since the said Section 11A (5) stood omitted with effect from 14-5-2015. The show cause notice having been issued under a non-existing provision is not maintainable in law.
Section 11A (5) read with Section 11A (4) applies in cases of fraud, collusion, wilful mis-statement, suppression of facts or contravention with intent to evade, none of which is present in this case. In the ER-2 Returns it is duly disclosed that the Appellant were availing Notification No.23/2003-CE. The Appellant have been subjected to audit from time to time. The Audit report records that the Appellant were availing Notification No.23/2003. The department was therefore fully aware that the Appellant were availing benefit of Notification no.23/2003. Moreover, No Dues certificate was also issued by the department at the time of exit from EOU. Accordingly, it is not a case of fraud, collusion, wilful mis-statement, suppression of facts or contravention with intent to evade and the larger period of limitation is inapplicable in the present case.
The impugned order is not tenable both on merits and on limitation - appeal allowed.
-
2024 (2) TMI 1157
Valuation - taking local Maximum Retail Price (MRP) for calculating the aggregate of Customs duties (Basic, CVD, SAD, Cess) to arrive at the Excise duty payable by 100% EOU under the Proviso to Section 3(1) of the Central Excise Act 1944 - correctness of demanding Education Cess and Secondary and Higher Education Cess once again on the aggregate of customs duties which already includes such Cess on the basic customs duty and CVD - SCN purportedly issued under Section 11A (5) of the Central Excise Act 1944 is without jurisdiction since the said Section 11A (5) stood omitted with effect from 14-5-2015 or not - whether Notice is barred by time and the larger period of limitation apply since the goods were cleared after verification of duty payment and issue of No dues certificate by the central excise officer?
HELD THAT:- It would be evident from the calculation that the Principal Commissioner has wrongly calculated the Basic customs duty on the MRP of the goods, which is contrary to the provisions of Proviso to Section 3 (1) of the Central Excise Tariff Act. As per Proviso to said Section 3 (1), Excise duty on goods manufactured by a 100% EOU and brought to any place in India shall be an amount equal to aggregate of customs duties leviable on like goods when imported into India and the value of such goods shall be as per the Customs Act 1962 and the Customs Tariff Act 1975. The said Acts do not provide for calculating the basic customs duty on the local Maximum Retail price (MRP) but require adoption of the transaction value as per Section 14 of the Customs Act 1962. Instead of taking such value which is mentioned in the Column before the Column of MRP on page 55 of the Appeal, the Principal Commissioner has taken the MRP, which is plainly erroneous. Accordingly, the assessable value taken for calculating the Basic Duty is ex-facie erroneous.
As regards the CVD, the Principal Commissioner has wrongly calculated the same on MRP instead of MRP less abatement under Notification No. 49/2008-CE (NT) dated 24-12-2008. Accordingly, the value taken for calculation of CVD is also ex-facie erroneous.
Further, the Principal Commissioner has wrongly taken Education Cess and Secondary and Higher Secondary Education Cess once again on the aggregate of customs duties, although the same were already considered while calculating the aggregate of customs duties.
Extended period of limitation - HELD THAT:- Even otherwise, the Show Cause Notice dated 27-05-2015, which is purportedly issued under Section 11A (5) of the Central Excise Act 1944 was not maintainable in law since the said Section 11A (5) stood omitted with effect from 14-05-2015. The show cause notice having been issued under a non-existing provision is not maintainable in law. Further the said Section 11A (5) read with Section 11A (4) is applicable in cases of fraud, collusion, willful mis-statement, suppression of facts or contravention with intent to evade, none of which is present in this case. As evident from letter dated 22-5-2012 of the Superintendent, prior to de-bonding, the factory was visited by the Central Excise officers and the stock and calculation of duty were duly verified by the Central Excise officers. It is evident from the letter that the department was fully aware of availing of notification No.23/2003-CE. Therefore, the larger period of limitation is inapplicable in the present case.
The impugned order is not tenable and is liable to be set aside - appeal allowed.
-
2024 (2) TMI 1156
Denial of CENVAT Credit - inputs/capital goods or not - HR, MS and SS plates received and utilized during 2003 to 2005 for setting up of Copper III plant - impugned order has disallowed such Cenvat credit on the ground that the plant and machinery so fabricated, are immovable and fixed to earth and cannot be called "capital goods" - HELD THAT:- There is no restriction in Rule 2(k) of Cenvat Credit Rules, 2004, for the availment of the Cenvat credit of the duty paid on goods used for manufacture of capital goods. All that the said rule requires is whether such capital goods are used for manufacture of excisable goods in the factory. Once this requirement is satisfied, the fact that such capital goods came into existence as an immovable property is irrelevant or immaterial to avail Cenvat Credit.
The Appellants have used MS and SS plates used in the fabrication of chimneys. Chimneys are pollution control equipment and are thus specified capital goods under sub-clause (ii) of clause (A) of the definition of "capital goods" under Rule 2(a) of the Cenvat Credit Rules, 2004. The Hon'ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS LTD. [2010 (7) TMI 12 - SUPREME COURT] has examined the issue of eligibility of Cenvat credit availed on MS plates items used in the fabrication of chimneys. The Hon'ble Supreme Court has held that, once it is not under dispute that the impugned items are used in the fabrication of chimneys, Cenvat credit availed on the same cannot be denied. Thus, ground in impugned order is also rejected.
Iron and steel items used in the fabrication of supporting structures for capital goods - HELD THAT:- Cenvat credit has been denied on iron and steel items used in the fabrication of supporting structures for capital goods is eligible. The Appellants have availed Cenvat credit on H.R. M.S. & S.S. plates used in the fabrication of supporting structures of capital goods. There are cetena of decision wherein it has been held that the credit of steel used to support capital goods is eligible for credit.
Denial of credit on account of an inordinate delay in availing Cenvat credit in violation of Rule 4(1) of the Cenvat Credit Rules, 2002 and/or 2004 - HELD THAT:- There is no specific time limit prescribed for availment of Cenvat credit on inputs under Rule 4(1) of the Cenvat Credit Rules. The sub-rule which prescribes that "CENVAT credit in respect of inputs may be taken immediately" in Rule 4(1) makes it clear that the said provision is an enabling provision and enables the assessee to avail Cenvat credit immediately on receipt of the inputs.
There are no merit in the impugned order. The same is set aside and the appeal is allowed.
-
2024 (2) TMI 1080
Levy of penalty under Rule 12(6) and Rule 27 of the Central Excise Rules, 2002 and Rule 15A of the Cenvat Credit Rules, 2004 - non-filing of returns namely ER-4, ER-5, ER-6 and ER-7 for the period from February 2012 to March 2016 - invocation of extended period of limitation as provided under Section 73, sub-section (4) of the Finance Act, 1994 - HELD THAT:- As per Section 174(2)(e) of the CGST Act, 2017 the proceedings can only be continued under the new regime if it is arising/emerging out of investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings etc. Further, it is found that violation of non-filing of the returns under the existing law has not been saved under the present regime of GST. Further, in the present case the period involved is February 2012 to March 2016, whereas the show cause notice was issued on 23.04.2018 which is beyond the period of limitation.
In fact, neither in the show cause notice nor in the impugned order, the grounds for invoking the extended period of limitation have been discussed. Nothing emerges from the impugned order that the appellant have not filed the requisite returns with intent to evade the payment of tax. Further, the decisions relied upon by the appellant as well as the respondent, are not strictly applicable in facts and circumstances of the present case.
The imposition of penalties amounting to Rs.96,000/- is not sustainable - The impugned order is set aside - appeal allowed.
-
2024 (2) TMI 1079
Recovery of CENVAT Credit alongwith interest and penalty - credit availed by the appellant on inputs during 12.02.2004 onwards - process amounting to manufacture or not - HELD THAT:- The issue involved in the present case is no more res integra and has been consistently held by various decisions of the Tribunal, upheld by the Hon’ble Supreme Court and High Court wherein it has been held that when process undertaken by the assessee does not amount to manufacture, even then the CENVAT credit is admissible if such inputs are cleared on payment of duty which would amount to reversal of credit availed.
Reliance can be placed in the case of COMMISSIONER OF CENTRAL EX. & CUS., SURAT-III VERSUS CREATIVE ENTERPRISES [2008 (7) TMI 311 - GUJARAT HIGH COURT] which was upheld by the Hon’ble Apex Court in COMMISSIONER VERSUS CREATIVE ENTERPRISES [2009 (7) TMI 1206 - SC ORDER] wherein it was held that once duty on final products has been accepted by the Department in the case, CENVAT credit cannot be denied even if the activity does not amount to manufacture.
The impugned order is not sustainable in law and therefore is set aside - appeal allowed.
-
2024 (2) TMI 1078
Valuation - inclusion of secondary packing charges recovered by the Respondent from their customers in the assessable value - Freight Cost recovered by the Respondent from their customers for the onward movement of the goods from the factory gate to Railway Station is includable in the assessable value or not - HELD THAT:- On going through the OIA, it is found that the Commissioner (Appeals) has given very detailed findings on the issue raised in the Show Cause Notice - it was held that When the appellant has sold the goods at the factory gate, then such charges which are collected for providing services beyond the factory gate cannot be added to or included in the assessable value. It is not the case of the Department, that the appellant is collecting these as part of the price of the goods and in the guise of forwarding charges. Such a proposition would be contrary to evidence as there is uniform sale price of goods at the factory gate and inclusion of such forwarding charges to be declared price would lead to differential price of goods. Hence, such forwarding charges cannot be included in the assessable value of goods.
In case of UNION OF INDIA & ORS. ETC., ETC. VERSUS BOMBAY TYRE INTERNATIONAL LTD. ETC., ETC. [1983 (10) TMI 51 - SUPREME COURT], the Hon’ble Supreme Court has held If any special secondary packing is provided by the assessee at the instance of a wholesale buyer which is not generally provided as a normal feature of the wholesale trade, the cost of such packing shall be deducted from the wholesale cash price.
These decisions are squarely applicable to the facts of the present Appeals. Therefore, there are no reason to interfere with the detailed findings and conclusion arrived at by the Commissioner (Appeals).
The Appeals filed by the Revenue is dismissed.
-
2024 (2) TMI 1077
Interest on delayed refund - period prior insertion of the Section 11BB of CEA - HELD THAT:- There is no dispute that this order was in respect of a refund application filed on 07.04.1997. If Revenue was aggrieved by the facts as recorded in this order they should have filed an application under Section 35 C (2) of the Central Excise Act, 1944 for getting the facts as recorded in the final order of tribunal or could have filed an appeal to the concerned appellate authority. Having not done so there cannot be any dispute about the fact that entire proceedings are in respect of the refund application filed on 07.04.1997. Commissioner (Appeals) findings in this regard cannot be faulted with.
As the entire issue is in sequel of the Tribunal order directing payment of due interest as due. Without challenging the direction to pay the interest at appropriate forum the same cannot be challenged in these proceedings whether for the period prior insertion of the Section 11BB before or after, there are no merits in this appeal.
In the case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [2011 (10) TMI 16 - SUPREME COURT], SC held that liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made.
There are no merits in this appeal filed by the revenue - appeal dismissed.
-
2024 (2) TMI 1018
Denial of CENVAT Credit - process amounting to manufacture or not - goods received from Unit-I (and cleared to Unit-II) required manufacturing activity or not - whether the demand raised alleging that the credit availed by the appellant is ineligible for the reason that there is no manufacturing process undertaken by the appellant on goods received from Unit I and cleared by them is sustainable or not? - HELD THAT:- It is an undisputed fact that the appellant has cleared all goods from unit 2 by payment of duty. When the department has collected duty on the finished products, the credit availed on the inputs cannot be denied alleging that the activity does not amount to manufacture. This issue is settled by the decisions in the case of Ajinkya Enterprises [2012 (7) TMI 141 - BOMBAY HIGH COURT] wherein the Hon’ble High Court of Bombay held CENVAT credit availed need not be reversed even if the activity does not amount to manufacture.
In the case of M/s. R K Packaging Vs. CCE, Mumbai [2019 (3) TMI 1500 - CESTAT MUMBAI], the issue considered was whether the credit availed has to be reversed when the activity is alleged to be not manufacture. The demand was set aside by the Tribunal following the decision of the Hon’ble High Court of Bombay in Ajinkya Enterprises.
The demand cannot sustain and requires to be set aside. The impugned order is set aside - Appeal allowed.
............
|