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Central Excise - Case Laws
Showing 41 to 60 of 225 Records
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2013 (8) TMI 793
Benefit of notification no.67/95-C - Cenvat credit on the captively consumed molasses - Held that:- since the molasses were being used for exempted as also for dutiable products, the appellant was liable to pay 8% of the value and the exempted final products in terms of Rule 57CC. As such, their refund claim of Rs.14,10,236/- is not called for.
However, as they were availing the credit of duty paid on the purchased molasses, they were also entitled to the credit of duty paid on the captively consumed molasses. - the cenvat credit of duty paid on the captively consumed molasses would be available to them. - Decided partly in favor of assessee.
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2013 (8) TMI 792
Provisional Assessment - Refund Claim - Claim of interest - rejection of refund claim on the ground that the appellant did not challenge the order finalizing the provisional assessment - Held that:- the refund claim could not have been rejected on the ground that the finalization order has not been challenged. - No doubt that there are no estoppels in statutory matters. Nevertheless, it is the duty of the officers also to advice the assessee properly. Having returned the refund claim with an observation that it is premature, which should have been filed after finalization of the assessment, the rejection of the refund claim after finalizing on the ground that the assessment order was not challenged, to say the least is illogical and in view of the observations made is illegal also since the Assistant Commissioner who is implementing the Central Excise Act and Rules did not even bother to follow the rules and provisions of the Act before making such observations. - Decided in favor of assessee.
Regarding interest on refund - Held that:- According to Rule 7(5) of Central Excise Rules, 2002, where the assessee was entitled to refund consequent to order of final assessment under sub-rule (3), subject to this sub-rule (6), provides for verification of unjust enrichment, there shall be paid an interest on such refund at the rate specified by the Central Government by Notification issued under Section 11BB of the Act from the first day of the month succeeding the month by which such refund is determined, till the date of refund.
Unjust Enrichment – Opportunity to Produce evidence - Whether the AC was correct in taking a view that refund was not admissible on the ground of unjust enrichment at the time of finalization of the assessment in the absence of any evidence produced by the assessee or without giving an opportunity to the assessee - Held that:- besides the CA certificate which itself contains the relevant details, the appellant had produced direct sales register, the details of discount passed on and also an affidavit by the DGM (works).
Issuance of Credit Notes - The appellants have submitted documents for finalization within three months from December 31st, 2010 and therefore the credit notes were issued much before the two years period and further, from the ledgers and the documents produced, it was quite clear that there cannot be any doubt about the passing on the benefit of discount to the dealers - Refund allowed - Decided in favor of Assessee.
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2013 (8) TMI 791
Confiscation of the excess found goods - Commissioner set aside confiscation and reduced penalty - Held that:- Revenue has not advanced any evidence on record to show that such non-entry of the goods in the statutory records was with an malafide intention to clear the same without payment of duty. Further, it is clear from the statement of the Manager that majority of the sole pairs were of rejected quality - It is a case of mere non-entry in the RG-23 Part-I register - Following decision of Bhillai Conductors (P) Ltd. Vs. CCE, Raipur [2000 (1) TMI 105 - CEGAT, NEW DELHI] - Decided against Revenue.
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2013 (8) TMI 790
Default in Payment of Duty even in Grace Period - Penalty u/s 11A and 11AC - Whether a penalty equal to the illegally utilized CENVAT credit could have been imposed on the assessee under Rule 15(2) of the CENVAT Credit Rules, 2004 - The assesse committed default in payment of duty for the period upto 5th January 2009 - They failed to take even the benefit of grace period prescribed under Rule 8(3) of the Central Excise Rules – Held that:- The conduct of the assesse directly attracted Section 11AC of the Act - For the period after 5th January 2009, the assesse chose to utilize CENVAT credit for payment of duty on consignment wise clearances of goods - The conduct amounted to non-payment of duty on such goods thereby attracting Section 11A for recovery and Section 11AC for penalty.
The intent to evade payment of duty in the prescribed manner is common to both the above ingredients viz. wilful mis-statement of facts and contravention of a rule - Rule 15(2) clearly provides that, in such situations, the manufacturer shall also be liable to pay penalty in terms of provisions of Section 11AC of the Act - the assesse had failed to substantiate their case against the penalty imposed on them under Rule 15(2) read with Section 11AC – Appeal Dismissed.
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2013 (8) TMI 789
SSI Benefit Under Notification No.175/86-CE and Notification No.1/93-CE - Benefit of the Notification was denied to the appellant in respect of certain branded goods cleared from their factory - Held that:- The appellant could not have claimed SSI benefit in respect of the branded goods - Following TRUPTI MULTI SERVICES Versus COLLECTOR OF CENTRAL EXCISE, PUNE [1998 (3) TMI 321 - CEGAT, NEW DELHI] - The affixture of the brand name on the package rather than on the goods contained therein would not make Notification No.175/86-CE/No.1/93-CE inapplicable - The appellant’s claim for SSI benefit under Notification No.175/86-CE and Notification No.1/93-CE was hit by para (7) and para (4) respectively of the notifications - Each of these barred SSI exemption to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who was not eligible for grant of exemption under this Notification.
Assignment of Brand Name - Whether the brand name was assigned to the appellant by its owner to be used in India - Held that:- Nothing contained in the trade mark agreement could be taken into account while deciding - The mere right of the appellant to use the brand name of the foreign company pursuant to an agreement between the two cannot entitle the appellant to contend that it ceased to be the brand name of the foreign company – Decided against Assessee.
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2013 (8) TMI 788
Classification of Goods - AIDS (HIV I and II) Diagnostic Kits and Hepatitis B and Hepatitis C test kits - Heading 30.02 or Heading 30.22 - HSN based classification - Held that:- A comparison of HSN heading 38.22 and Central Excise Tariff Heading 38.22 would show that except for product group “certified reference materials”, in which is there, HSN Heading 38.22 but is not there in Central Excise Tariff heading 38.22, the Central Excise Tariff Heading 38.22 and HSN Heading 38.22 are identical. From a plain reading of Central Excise Tariff heading 38.22 it will be seen that it covers those diagnostic or laboratory reagents whether or not on a backing, which are not covered by 30.02. Since the goods, in question, are diagnostic reagents on a backing, for their classification under 38.22, their classification under Heading 30.02 has to be ruled out.
Product group (ii) of Central Excise Tariff Heading 30.02 is identical with product group (iv) of HSN Heading 30.02
The Revenue’s plea is that the diagnostic kits, in question, being based on antigens or monoclonal antibodies derived from culture of micro-organism are not covered by Heading 30.02 and this heading covers only the “cultures of micro-organism”, not the reagents derived from micro-organism cultures. This contention of the Revenue is not correct
In terms of Span Diagnostics Ltd. v. CCE, Surat[2007 (4) TMI 617 - SUPREME COURT OF INDIA] the product group “Antisera and other blood fractions” in Central Excise Tariff 30.02 would also include modified immunological products, whether or not obtained by biotechnological process..
HIV detection kits and Hepatitis C detection kits containing antigens obtained from micro-organism cultures, immobilised on a porous immuno-filtration membrane and which work on antigen-antibody reaction (neutralisation) would be covered by Heading 30.02, as in view of the above-mentioned HSN explanatory notes, this heading includes the diagnostic reagents of microbial origin other than those covered by Chapter Note 4(d) [corresponding to Chapter Note 3(d) of Central Excise Tariff Chapter 30], which covers - “Opacifying preparations for X-ray examination and diagnostic reagents designed to be administered to patients, being unmixed products put up in measured doses or products consisting of two or more ingredients which have been mixed for such uses” - and the products, in question, were not covered by Chapter Note 4(d) of Chapter 30 of HSN [Chapter Note 3(d) of Central Excise Tariff Chapter 30] as these products are not the products meant for being administered to patients for diagnostic purposes and are diagnostic reagents of microbial origin which work on the principle of antigen-antibody reaction - For the same reason, Hepatitis B detection kit which consisted of monoclonal antibodies (a reagent of microbial origin) conjugated with colloidal gold and polyclonal antibodies immobilised on a nitrocellulose strip and which also work as the principle of antigen - antibody reaction would be covered by Heading 30.02 – order set aside – Decided in favour of Assesse.
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2013 (8) TMI 773
Classification of goods under sub-heading 1704.90 of Central Excise Tariff and claiming concessional rate of duty of 8% vide Sl. No. 247 of Notification No. 6/2002-CE dated 1.3.2002 or classifiable under sub-heading 1704.10 in which case they were to pay duty at the rate of 16% instead of 8% as paid by them – Held that:- Strong merit in the contention of the appellant that a small percentage of gum in sugar confectionary may not be sufficient to consider the product as gum, though not examining the merits of the issue.
Extended period of limitation – Held that:- Appellant were manufacturing the same product even during the period when the system of filing classification list and getting it approved was in vogue. Revenue has not brought out any change in manufacturing process or the contents used after self-assessment is introduced. No suppression of information during the earlier period is brought out much less any mis-declaration - No justification to invoke extended period of five years provided in Section 11A for issuing demand notice - Demand is tie-barred – Decided in favor of Assessee.
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2013 (8) TMI 772
MODVAT credit - Interpretation of the Notification No. 58/97-CE - During MODVAT verification it was found that the supplier of inputs had not discharged full duty liability for the period covered by the invoices - Whether the manufacturer of final products was entitled to deemed credit, under Notification 58/97-CE dated 30.8.97 when the manufacturer-supplier of inputs had not paid Central Excise Duty and given a wrong certificate on the body of invoices about duty dischargement under Rule 96ZP of Central Excise Rules, 1944 - Held that:- One had to assume that the importer of polyvinyl alcohol had actually manufactured the same in India - One can further assume, possibly without any difficulty, that the said polyvinyl alcohol had been manufactured from vinyl acetate monomer, but it was not possible to assume or presume or imagine that the raw material used was the one on which appropriate amount of duty of excise had been paid in India and hence, the condition which was contained in the said notification had to be fulfilled in order to get the benefit of the notification.
The notification clearly states to which of those inputs it shall apply and to which of the inputs it shall not apply and what is the duty of the manufacturer of final inputs. Thus, when there is a prescribed procedure and that has been duly followed by the manufacturer of final products, we do not perceive any justifiable reason to hold that the assessee-appellant had not taken reasonable care as prescribed in the notification. Due care and caution was taken by the respondent. It is not stated what further care and caution could have been taken.
The proviso postulates and requires “reasonable care” and not verification from the department whether the duty stands paid by the manufacturer-seller - When all the conditions precedent had been satisfied, to require the assessee to find out from the departmental authorities about the payment of excise duty on the inputs used in the final product which have been made allowable by the notification would be travelling beyond the notification, and in a way, transgressing the same - This would be practically impossible and would lead to transactions getting delayed – Decided against the revenue.
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2013 (8) TMI 771
Refund Claim of Differential Amount by way of CENVAT credit - Whether the refund of duty initially paid through Cenvat credit account can be made in cash in a situation when by the time the duty amount had become refundable, the assessee’s factory had closed down and the registration certificate had been surrendered - Held that:- lower authorities were directed to refund the amount in cash to the appellant-assessee as the factory was closed – following the judgement of COMMISSIONER OF C. EX., JALANDHAR Versus KOCHAR SUNG-UP ACRYLIC LTD [2010 (8) TMI 330 - CESTAT, NEW DELHI] - There was no dispute about the fact that when the duty was paid through Cenvat credit account, the unit was functioning and by the time the matter was decided by the Tribunal partly in the favour of the respondent, which resulted in refund and the refund was sanctioned - the unit had closed down and even the registration certificate had been surrendered – assessee is eligible to receive the refund in cash - Decided in favor of assesse.
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2013 (8) TMI 770
Determination of Assessable Value - Job work - Undervaluation of the Goods - The assesses were manufacturers of dumpers/body built motor vehicles and accessories falling under Chapter 87 of the Central Excise Act - they were also engaged in building body on the chassis on job work basis - Department was of the view that the assesses had undervalued the goods to the extent that fully built up vehicles were sold at an higher price from the place of removal other than the factory gate - Held that:- The value of the goods supplied by the assesses was to be determined under Rule 10A of the Central Excise Valuation Rules, 2000 and not under Rule 6 – there was no infirmity in the Orders-in-Original with regard to valuation of the goods under Rule 10A of the Valuation Rules - Since the duty was required to be paid under Rule 10A, interest was also required to be paid on the duty quantified by the department – the Orders-in-Original with regard to confirmation of duty under Rule 10A of the Valuation Rules along with interest was upheld – Penalties were set aside.
Following AUDI AUTOMOBILES Versus COMMISSIONER OF CENTRAL EXCISE, INDORE [2009 (5) TMI 426 - CESTAT, NEW DELHI] - once it was sought to be contended that Rule 10A will have no application in the facts of the case, it was for the assesses to produce relevant documents like the invoice and agreement which would support the case put forth by the assesses - it was necessary for the assesses to disclose the nature of the understanding between the manufacturer of chassis and the said firms, and in case, such understanding was in the form of writing, to place on record the document in that respect.
It was apparent that the firms had cleared the goods in relation to the body fabricating and mounting on the chassis which were supplied to the said firms free of cost by the manufacturer of chassis - the activity for the purpose of valuation would squarely fall under Rule 10A and not under Rule 6 - Decided against assesses.
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2013 (8) TMI 769
Shortage of Imported Goods - The appellant had been importing the fabrics which were consumed for the manufacturing of the goods for export - on the verification of the records it was found that there was a shortage of imported fabrics - Held that:- The issue in the case had not been properly addressed by the adjudicating authority - there were various submissions which had been made by the appellant before him which remained un-addressed and a summary conclusion had been arrived - The issue needs re-consideration by the adjudicating authority - order set aside and remand the matter back to the adjudicating authority to reconsider the issue afresh, after following the principles of natural justice - nothing incriminating was found in as much as they have never admitted to have procured the imported fabrics which were allegedly diverted by the appellant.
The Panchnama witnesses had retracted the statements and cross-examination conducted, indicates that there was something amiss - The Department had not produced the four brokers for cross-examination whose names came up during the recording the statement which was required to substantiate the case of diversion of imported goods - The finding/remarks were unsubstantiated as in the entire case record there was no evidence to claim that the appellant had been resorting to making deliberate entries in RG-1 register.
Whether the Removal of the Goods were clandestine Removal - As decided in ASSISTANT COLLECTOR OF CUSTOMS Versus KUNHI KORATH BALAN [ 1990 (8) TMI 156 - HIGH COURT OF JUDICATURE AT BOMBAY] - The Panchnama was faulty, no adverse inference can be drawn and such Panchnama had to be excluded from the consideration of the case against any person - shortage of goods in itself does not mean that clandestine removal and clandestine removal needed to be proved by the Department and also for the proposition that the assessee was entitled to give proper explanation of the difference in stock taking even at the time of the reply to the show cause notice - appeals were allowed by way of remand – Decided in favor of Assesse.
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2013 (8) TMI 768
Liability to Pay Interest - Excess Credit - Reversal of Credit - Whether the assesse was liable to pay interest in terms of Rule 14 of the CENVAT Credit Rules, 2004 - Held that:- Relying upon UOI vs. Ind-Swift Laboratories Ltd. [2011 (2) TMI 6 - Supreme Court] - The respondent was liable to pay interest on the amount of CENVAT credit for the period from the date of its irregular availment to the date of its reversal - the period being covered by Rule 14 pre-amendment - A statutory provision is generally read down in order to save the said provision from being declared unconstitutional or illegal - Rule 14 specifically provides that where CENVAT credit has been taken or utilized wrongly or has been erroneously refunded, the same along with interest would be recovered from the manufacturer or the provider of the output service - Decided in favor of Revenue.
Whether the respondent was entitled to take CENVAT credit on certain invoices issued by a registered depot of the manufacturer of inputs - Held that:- The assesse took CENVAT credit of the duty indicated in the depot invoices - the availment of the CENVAT credit by the assesse cannot be questioned - The case of the revenue was that there was no evidence of the amounts of duty shown in the depot invoices having been paid by the manufacturer – If the department had doubts regarding the amounts of duty paid by the manufacturer, appropriate proceedings should have been taken at their end - Any short-payment of duty by the manufacturer could have been taken care of through such proceedings - CENVAT credit was taken on valid documents and the inputs in respect of which such credit was taken were duly used in, or in relation to, the manufacture of final products - Therefore there was no reason to deny the credit to the assesse – Decided against Revenue.
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2013 (8) TMI 723
Finalised Seniority List - Instructions of Deputy Secretary Department of Revenue that the revised seniority list of Assistant Commissioners of Customs and Central Excise circulated in terms of Circular dated 27.02.2013 was the "finalised seniority" list of Assistant Commissioner appointed up to 1996-1997 - Held that:- The facts and circumstances of the case shall not prevent the Government from giving to the officers seniority from the year the vacancies became available - The direction was issued at the request made by the Government of India and on the concession of Mr. Sharan, learned senior counsel for the respondent which shall not operate as a precedent in future.
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2013 (8) TMI 722
Classification of Goods - Held that:- The product ‘Liril Active Shower Gel’ was covered by Heading 34.01 which covers soap and various other substances and the product was not covered by Heading 33.04 as contended by the Revenue - Assenting the view given by CESTAT - Decided against Revenue.
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2013 (8) TMI 721
SSI Exemption Notification No.8/2003 - Determination of Turnover – Clubbing of turnover of goods manufactured by loan licence or job worker - Waiver of Pre-deposit - manufacture of Ophthalmic and liquid orals (medicaments) - Difference of opinion.
Matter referred to larger bench with the issue, Whether in the facts and circumstances of the case, the appellant have prima facie case in their favour warranting waiver of pre-deposit under Section 35F?
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2013 (8) TMI 720
Application for restoration of Appeal – Held that:- No new facts has emerged after passing of the order dated 3.10.2012 by this Tribunal - Application for restoration of appeal is dismissed – Decided against the Assessee.
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2013 (8) TMI 719
CENVAT credit – GTA Service on Outward Transportation - upto the place of removal - Definition of Input Service - The appellant availed the Cenvat credit of Central Excise Duty paid on inputs and capital goods and service tax paid on inputs services used in or in relation to the manufacture of their final products - Whether the appellant were eligible for Cenvat credit of service tax paid on GTA Service availed for outward transportation of finished goods from the factory gate to the customer’s premises – Held that:- Cenvat credit of service tax paid on outward freight up to the buyer’s premises would be admissible when the sales were on FOR destination satisfying the criteria prescribed for the same in the Board’s Circular 23-8-2007 - their sales were on FOR destination basis and it was the customer’s premises which would be the place of removal and since during the period of dispute, transportation up to the place of removal was covered by the definition of ‘inputs service’.
Ambuja Cement Limited v. Union of India [2009 (2) TMI 50 - PUNJAB & HARYANA HIGH COURT] - They would be entitled for the Cenvat credit of service tax paid on the GTA service availed for outward transportation of the finished goods up to the customer’s premises - the duty on the finished goods was at an ad valorem rate, the definition of ‘place of removal’ as given in Section 4 of the Central Excise Act, 1944, would be applicable and accordingly if the sales, of the goods take place at the customer’s premises i.e. the sales are on FOR destination basis, the customer’s premises would be the “place of removal” - the transportation of the finished goods upto customer’s premises would be covered by the definition of ‘input service’.
In the orders neither any findings had been given on the appellant’s plea that their sales were on FOR destination basis nor the Board’s Circular No. 97/6/2007-S.T., dated 23-8-2007 and the judgments of Hon’ble Punjab & Haryana High Court in case of Ambuja Cement Ltd. which was the jurisdictional High Court had been discussed - Order set aside - Matter Remanded back to CCE (Appeals) for de novo decision – Decided in favor of assesse.
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2013 (8) TMI 718
Rebate amount was availed fraudulently (as alleged) without any actual exports - MODVAT credit - Held that:- The Revenue had sought to deny the deemed modvat credit availed by the appellant in respect of the grey fabrics received by them on the ground that no manufacturing process had taken place at the appellant’s premises - If the said stand of the Revenue was accepted, it will lead to the fact that no duty payment on the final product was required - However it is seen that apart from using the said modvat credit for payment of duty, the appellants have also paid an amount from the PLA account - According to the appellant no prudent man will pay duty to the government without actually receiving the grey fabrics - The fact tilted the weight of the evidence in favour of the appellant - In any case by paying duty on the final product, the deemed credit so availed stands reversed by the appellant, in addition to payment of duty out of PLA.
SHREE SHIV VIJAY PROCESSORS PVT. LTD. Versus COMMR. OF C. EX., SURAT [2010 (11) TMI 280 - CESTAT, AHMEDABAD] - Factually there was no direct evidence that the fraud was committed by the appellant herein - The case of the Revenue was that there was a complicity of the appellant in his failure to bring any material on record to establish genuineness of transactions - It was nowhere mentioned that the appellant had failed to file monthly returns to the authorities - The appellant herein must have filed the monthly returns as there was a payment of duty by cash through PLA which was evidenced from the findings of facts - If the appellant had filed the regular returns before the authorities - there was nothing on record to show that the appellant was directed to justify their claim of availment of deemed cenvat credit on the grey fabrics - order set aside – Decided in favor of Assesse.
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2013 (8) TMI 717
100% EOU - Diversion of goods - Non- Utilization of Inputs - Violation of Various Notifications - Duty Liability - Revenue was of the view that the main appellant had not consumed/used the input imported by them as an EOU and had diverted the same and thereby has violated the condition of various notifications - Whether the Appellant was liable to discharge the duty liability foregone by the Department either in the form of Customs duty and Central Excise duty - Held that:- It had to be noted that the Revenue has conducted detailed investigations and the Director of the appellant, had clearly admitted that the vehicle numbers shown on the body of the invoices under which the clearances were shown just to fill the appropriate column and, in fact, no goods were physically sent - as many as 14 invoices were found to be having wrong vehicle numbers - what was required to be considered was the case against the appellant and each case had to stand on its own merit or fail.
Commissioner of Customs (Sea) Custom House, Chennai Versus CESTAT, South Zonal Bench, & M/s Gaur Impex [2009 (4) TMI 83 - MADRAS HIGH COURT] - All the appellants had to do was to get a certificate from the Development Commissioner that the appellants had fulfilled the export obligation and if they had fulfilled the export obligation, the Development Commissioner would ha issued such a certificate - It was surprising that the appellants were choosing not to get a certificate from the Development Commissioner which was, indeed, required also for their own purpose and instead they required that the Commissioner should make a reference to Development Commissioner and go on, waiting for a reply.
Waiver of pre-deposit - The appellant had not been able to make out a prima facie case in their favor - Taking note of the fact that the period of dispute was 2001 to 2003 and nine years had already elapsed and the duty involved was more than Rs.2.5 Crores with equal amount of penalty - the appellant was required to make an additional small amount of pre-deposit - 35Lakhs were ordered to submitted – upon such submission rest of the duty to be waived till the disposal of appeal.
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2013 (8) TMI 716
Merchant exporter - Failure to export the goods - goods procured against CT1 certificate - appellant discharged the duty liability - Interest liability on Duty Liability - Whether the appellant was eligible for refund of amount paid by him as an interest on the duty liability on the goods which were cleared for export but could not be exported by merchant exporters - Held that:- Both the lower authorities had mis-interpreted the provisions of Section 11AB of Central Excise Act, 1944, in a narrow sense inasmuch as they had held that the appellant herein had paid the duty under Section 11A(2B) of Central Excise Act, 1944, was liable to pay the interest also - the appellant was not a person who was chargeable to duty cannot be saddled with the duty liability under any provisions of Central Excise Act, 1944 - Accordingly, the question of payment of interest by the appellant may not arise.
COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, VADODARA-II Versus M/s GUJARAT NARMADA FERTILIZERS CO LTD [2012 (4) TMI 309 - GUJARAT HIGH COURT] - The section would be applicable to the person who was chargeable with the duty - as had already been recorded that the appellant was not chargeable to duty’ as the goods were cleared for export under CT-3 for which B-1 bond had been executed by merchant exporters - Both the lower authorities had held against the appellant only on the ground that the appellant’s action of discharge of duty liability on the goods cleared for export but could not be exported, was covered under the provisions of Section 11A(2B) of Central Excise Act, 1944 - Order set aside - Decided in favor of Assesse.
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