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Central Excise - Case Laws
Showing 1 to 20 of 80359 Records
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2024 (5) TMI 206
Territorial jurisdiction to Grant Refund - Authorities at Noida or the Assistant Commissioner, Ghaziabad, had the jurisdiction to grant refund of the duty paid - Refund of excess duty in cash - price variation clause - HELD THAT:- The present litigation attained finality with the order of this Tribunal being Final Order No.A/70802/2016-EX[DB] dated 10.06.2016 [2016 (11) TMI 1203 - CESTAT ALLAHABAD]. Subsequently, an appeal was filed by the Commissioner, GST Noida before this Tribunal against the Order-In-Original No.R-373/D-III/GZB/2016-17 dated 19.01.2017 and the same was dismissed by the Tribunal in COMMR., CENTRAL TAX (CENTRAL GOODS & SERVICE TAX) , NOIDA VERSUS M/S. TTL LTD. [2019 (7) TMI 2018 - CESTAT ALLAHABAD]. Thus, cash refund of the entire amount already paid to the Appellant has attained finality as no further appeal before any of the superior courts has been filed by the Revenue.
The factory of M/s TTI Ltd. was located in Ghaziabad. Hence the territorial jurisdiction over the factory was of the Assistant Commissioner, Ghaziabad Division and not the Assistant Commissioner, Noida. Clearances of electric meters took place in Ghaziabad Division and the Central Excise duty was also paid in that Division. Hence, refund of the excess duty paid in Ghaziabad Division was to be sanctioned by the jurisdictional Assistant Commissioner, Ghaziabad. Initially refund claims were rejected by the Assistant Commissioner, Ghaziabad - While jurisdiction of the Commissioners is specified by the Government / Board by issue of a notification., no such notification is issued in case of the Assistant Commissioners of the Division, whose jurisdiction is determined with respect to the location of the factory. M/s TTL Ltd., Ghaziabad surrendered their Registration Certificate to the Assistant Commissioner, Ghaziabad on 09.03.2009 on merger with M/s QRG Enterprises Ltd. Order-in-Original dated 19.01.2017 was passed by the Assistant Commissioner, Ghaziabad after surrender of the certificate.
The refund was rightly sanctioned by the Jurisdictional Commissioner, Ghaziabad who was having jurisdiction over the factory premises located in Ghaziabad at the appropriate time in which disputed duty was paid which was to be refunded.
The impugned order cannot be sustained and the same is set aside - Appeal allowed.
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2024 (5) TMI 195
CENVAT Credit - services utilized for setting up plant for manufacturing of finished products which started with effect from September 2015 - amendment in Rule 2 (l) of CCR, 2004 with effect from 01/04/2011 and the word “setting up” was removed because of which Cenvat Credit cannot be taken for the services used towards setting up of the factories - suppression of facts or not - extended period of limitation - HELD THAT:- There is no dispute that the Appellant is manufacturing goods which were exigible to Excise Duty payment when they are cleared from their factory. They have taken the Cenvat Credit on various input services which have been used before they commenced the manufacturing activities.
The issue is no more res-integra. This Bench in the case of Texmaco UGL Rail (P) Ltd, [2019 (7) TMI 1651 - CESTAT KOLKATA] has held 'the amendments have been made in the definition of input services effective from 1 stApril, 2011 to specifically exclude input services in forms of works contract or construction services used in relation to building or civil structure or part thereof. It also excludes similar services used for laying of foundation or making of structure for support of capital goods. Thus, the intention of legislature was to restrict input tax credits on above services, which are used during factory set up and hence the term “setting up” was removed from the earlier definition having specific exclusion clause in the new definition.'
There are substantial force in the Appellant’s submission that when they were taking the Cenvat Credit and reflecting the same in the ER-1 Returns during the period 2012 to 2015, the Department was very much aware that they were taking the Cenvat Credit for various input services. The Department was aware that till September 2015, they were not manufacturing the goods, nor clearing the same. Therefore, the Appellant cannot be fastened with the liability of suppression.
The confirmed demand for the extended period is also hit by time bar. Therefore, the Appeal stands allowed even on account of limitation.
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2024 (5) TMI 194
Valuation - inclusion of freight and/or insurance charges is includable in the assessable value of excisable goods - sale of goods is on ex-factory basis - HELD THAT:- It is observed from the sale invoices of the appellant that the sale is ex-factory as clearly mentioned in the invoice and freight and /or insurance were charged separately. In this fact the freight and /or insurance is not includable in the assessable value as held by this Tribunal in the case of Gujarat Fluorochemicals Ltd [2024 (1) TMI 883 - CESTAT AHMEDABAD] wherein this Tribunal has held that 'freight charges are not to be included in the assessable value.'
From the above decision of this Tribunal, it can be seen that the facts in the present case and the case referred above is identical. Accordingly, the ratio of the above judgment is directly applicable in the present case. Hence, issue is no longer res-Integra.
Thus, freight and/or insurance is not includable in the assessable value. Consequently, demand of duty on this count is not sustainable - the impugned order is set aside - appeal allowed.
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2024 (5) TMI 193
Excisability of waste product - Requirement to pay the duty at the prescribed rates on the value of exempted goods namely Bagasse and Press Mud - HELD THAT:- The issue has already been decided by us in the case of M/S. PONNI SUGARS ERODE LTD. VERSUS THE COMMISSIONER OF GST & CENTRAL EXCISE, SALEM [2024 (5) TMI 3 - CESTAT CHENNAI] where it was held that 'impugned demand cannot sustain since Press mud is no different from Bagasse, which is also a waste product, which is also a result of the manufacturing process of a different product and, consequently, the impugned demand cannot sustain.'
Thus, the present demand against the appellant cannot sustain - the impugned order set aside - appeal allowed.
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2024 (5) TMI 192
Refund of Cenvat credit availed on Education Cess and Higher Secondary Education Cess carried forward as on the appointed day i.e. 30.06.2017 in terms of Section 142(3) of the CGST Act 2017 - Section 11B of Central Excise Act, 1944 read with 142(3) of the Central GST Act 2017 - violation of principles of natural justice - time limitation - HELD THAT:- Cess is commonly employed to connote a tax with a purpose or a tax allocated to a particular thing suggested by the name of the cess. In the present case, it is related to education. Cess is generally for such levy which is for some special administrative expense as shall be suggested by the name of the cess. Education cess was levied by virtue of Finance Act No. 2 of 2004 in Section 92 to 94 thereof to be charged as a duty of excise with an objective to fulfill commitment of the government to provide a finance universalized quality basic education.
No doubt the Cess are the part of the excise duty - the levy of EC and SHEC was however dropped and deleted by the Finance Act, 2015.
Whether the cess are cenvitable? - HELD THAT:- The definition of 'eligible duties and taxes' as per the explanation 3 under Section 140 of the CGST Act, 2017 was amended with retrospective effect from 01.07.2017 whereby it is specified that cesses are excluded from the definition of 'eligible duties and taxes', Thus, the credit is ab initio not available for utilization for GST. In view of the above, cesses are not be transitioned through TRAN-1, as per the transitional provisions specified under CGST Act, the credit balances not transitioned to GST regime shall lapse, and, as such, the argument of the appellant the impugned credits never lapse, as there is no provision retaining the same is not sustainable. The appellant cannot circumvent the said legal provision through the route of 142 (3) of the CGST Act.
As the amount of Cenvat credit balance of E. Cess & SHE Cess of Rs.7,97,27,333/- (of which refund had been filed by the appellant) was included in the carried forward amount by the appellant as on the appointed day i.e. 01.07.2017, in terms of Section 142(3) of the CGST Act 2017, refund of the same is not admissible to the appellant. Thus, it is clear that “taking” of the input credit in respect of Education Cess and Secondary and Higher Educatiion Cess in the Electronic Ledger after 2015, after the levy of Cess itself ceased and stopped, does not even permit it to be called an input Cenvat credit and therefore, mere such accounting entry will not give any vested right to the Assessee to claim refund of the said amount - there is no error when Commissioner (Appeals) has held that there is no provision in the Cenvat Credit Rules, 2004 or in Central Excise Act, 1944 to allow cash refund of cesses lying in he balance in Cenvat credit. Once it is not allowable, question to refund the same does not arises mere transitioning it to TRAN-1 shall not create any light to what was not allowable.
Violation of principles of natural justice - HELD THAT:- The appellant had filed the written submissions dated 02.01.2020 before original adjudicating authority. Personal hearing was also attended. There is no denial that notices of hearing were issued by Commissioner (Appeals) as well. Though appellant could not appear before him, without going into the plea by receipt of those notices, it is observed that Commissioner (Appeals) has duly considered the appellant’s reply dated 03.12.2017 and all the grounds of appeal taken by appellant. Hence it is not agreed that principles of natural justice have been violated.
Time limitation - HELD THAT:- There are no reason to differ from the findings arrived at in the impugned order.
Appeal dismissed.
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2024 (5) TMI 191
Refund claim - Can refund be claimed without opting of provisional assessment? - Reduction in price subsequently resulting in payment of duty in excess - time limitation - Section 11B of the CEA, 1944 - HELD THAT:- The word “may” is used interchangeably with “shall” and does not necessarily mean that the word “may” used cannot be read as “shall”. If the Learned Advocate‟s contention is taken as correct, that would mean that the refund claim can be made even after many years since no specific mention has been made that the refund claim should be made within one year. This would make the time specified under Section 11B (1) otiose.
On going through the orders of the lower authorities, it is found that they have passed a detailed and considered Order wherein they have rejected the refund claim solely on the ground of time bar. There are no reason to interfere with the same.
Accordingly, the present Appeal is dismissed.
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2024 (5) TMI 190
Refund of CVD/SAD paid - unable to avail and utilize the credit of CVD/SAD paid by them as payment was made on 30.09.2020 when no provision exist in GST regime to avail such credit - rejection of refund on the ground that at the time of payment of CVD and SAD, Cenvat Credit Rules were not exist, therefore neither the appellant can take the Cenvat credit nor the same is eligible for the refund - Section 11B of the Central Excise Act, 1944 - HELD THAT:- In the present case, the refund was made under the existing law i.e. section 11B of Central Excise Act, 1944 accordingly, the refund of SAD/CVD paid by the appellant which was cenvatable at the time when the said duty was payable, It is clearly eligible for refund under Section 11B read with Section 142(3) of CGST Act, 2017. Therefore, the appellant are legally entitled for the refund of CVD/ SAD.
The Revenue has filed the appeal on the sole ground that the adjudicating authority has rejected the claim relying on the Single Member Bench decision in the case of this Tribunal decision in the case of Sarvo Packaging Ltd. There are number of judgments by this Tribunal itself which are contrary to the decision of M/S. SERVO PACKAGING LIMITED VERSUS COMMISSIONER OF G.S.T. AND CENTRAL EXCISE, PUDUCHERRY [2020 (2) TMI 353 - CESTAT CHENNAI]. Moreover, even after considering the Sarvo Packaging Limited decision, the Tribunal’s Single Member Bench in the case of SRI CHAKRA POLY PLAST INDIA PVT LTD VERSUS COMMISSIONER OF CENTRAL TAX MEDCHAL – GST [2024 (1) TMI 927 - CESTAT HYDERABAD] after relying upon many other decision came to the conclusion that the appellant are entitled for the refund under Section 142(3) of CGST Act, therefore, the decision of Sarvo Packaging Limited stand departed.
The impugned order is upheld. Revenue’s appeal is dismissed.
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2024 (5) TMI 189
CENVAT Credit - requirement to pay 10% of the value of the excisable goods cleared to a SEZ developer in terms of Rule 6(3)(i) of CENVAT Credit Rules, 2004 - non-maintenance of separate records - HELD THAT:- There is no dispute about the fact that during the disputed period, the appellant had cleared furnitures against ARE-1 and raised proper invoices to SEZ developers without payment of duty.
It is found that applicability of Rule 6(2) of the CENVAT Credit Rules, 2004 for clearances to SEZ developers is no more res integra being covered by the judgment of the Hon’ble Karnataka High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX AND THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S FOSROC CHEMICALS (INDIA) PVT LTD AND OTHERS [2014 (9) TMI 633 - KARNATAKA HIGH COURT]. Interpreting Rule 6 of the CENVAT Credit Rules, 2004 in the context of Notification No.50/2008-CE(NT) dt. 31.12.2008 whereby the earlier Rule 6(6)(i) has been amended as “cleared to a unit in a special economic zone or to a developer of a special economic zone for their authorised operations” w.e.f. 31.12.2008 held that the same is retrospective operation.
The said judgment has been followed by the jurisdictional High Court in subsequent judgments COMMISSIONER OF C. EX., BANGALORE-III VERSUS ELINS SWITCH BOARDS PVT. LTD. [2014 (10) TMI 1066 - KARNATAKA HIGH COURT] and COMMISSIONER OF CENTRAL EXCISE BANGALORE-III, VERSUS M/S. LOTUS POWER GEARS (P) LTD. [2016 (6) TMI 998 - KARNATAKA HIGH COURT]. In Lotus Power Gears’s case, the Hon’ble High Court further observed that the judgment of the jurisdictional High Court is to be followed even a SLP has been filed before the Hon’ble Supreme Court against the earlier judgment as there is no stay granted by the Hon’ble Supreme Court.
The impugned order is set aside - Appeal allowed.
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2024 (5) TMI 126
Benefit of nil rate of duty in terms of Notification No. 23/1998-CE dated 01.08.1998 as amended - clearance of newsprint - Non-compliance with the conditions of Notification No. 23/1998-CE dated 01.08.1998 - clearance of goods to the unregistered depots which cannot be defined as “place of removal” - finished goods have not been cleared against purchase order as required under the Notification - HELD THAT:- The first requirement is that the subject goods must be intended for newspapers. It is not the case of the department in the show cause notice that the goods are not intended for printing of newspapers - all the conditions of chapter heading 4801 of note 4 to chapter 48 and notification issued thereunder i.e. 23/1998-CE dated 01.08.1998 stands complied with. Therefore, merely because first the goods were cleared from factory to godown and then to newspaper, the conditions of the notification does not stand contravened.
Similar issue has been considered by this Tribunal in the case of SRI VENKATESA PAPER & BOARDS LTD. VERSUS COMMISSIONER OF C. EX., MADURAI [2008 (7) TMI 169 - CESTAT, CHENNAI] where it was held that 'The expression “supplied against a purchase order placed upon such manufacturer by a newspaper” does not necessarily mean that the manufacturer should supply newsprint directly to a newspaper. What was intended by the amendment was that the supply of newsprint to a newspaper must be against a purchase order placed by the latter. It could either be direct or through a depot.'
It is also observed that the factory is the place of removal as per Section 4 of Central Excise Act, 1944, however, at the same time any other place from where the goods is sold after removal from the factory, the said place is also a place of removal. Therefore, whether the goods are sold from the factory or from any other place from where the goods were sold, both are statutorily considered as place of removal. Therefore, the goods sold from godown to newspaper after clearance from the factory will not take a different colour as far as the classification of goods under 4801 read with Notification No. 23/1998-CE.
Thus, nil rate of duty is rightly and legally available to the appellant - the impugned order is set aside - appeal allowed.
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2024 (5) TMI 125
Short payment of Central Excise Duty - mis-declaration of value of the goods cleared to BSE - clearance of some used capital goods on commercial invoices without paying the central excise duty - confirmation of demand on the wrong presumption that central excise duty is to be levied on the amounts received - HELD THAT:- The constitutional mandate of the Union to levy excise duty and also the charging section under the Central Excise Act clearly provide for levy of excise duty only on goods manufactured or produced in India. The measure of tax could be based on the quantity or value and in most cases, it is based on the value.
Duties of excise become payable on removal of goods (Rule 2 of the Central Excise Rules, 2002) and have to be paid by the sixth day of the following month (Rule 8). This payment is not contingent on the receipts for the goods removed and sold. The amounts may be paid in that month, in advance or much later. Regardless of when the payment is received or not received, duty becomes payable on removal and has to be paid by the sixth day of the following month - Form 26AS is system generated by the Income tax portal as a compilation of all the amounts paid by various persons and the TDS deducted from the assessee during the financial year.
There is no contrary overriding provision in the Central Excise Act. Therefore, section 102 of the Evidence Act applies and in case of Show Cause Notices issued under Central Excise Act, the burden of proof lies on the Revenue because if no evidence is provided by either side, the SCN fails. Therefore, it was not for the appellant to reconcile the documents and produce evidence but it was for the Revenue to establish that some excise duty escaped assessment and has to be paid.
This demand of central excise duty on the capital goods sold by the appellant (which were not manufactured by it at all) is beyond the scope of the charging section 3 of the Central Excise Act and also beyond the legislative powers of the Union as per entry 83 of List 1 of the Seventh Schedule of the Constitution - the SCN, the OIO and the impugned order were issued under the incorrect understanding of law that central excise duty could be levied on payments received (whether or not they were related to the excisable goods manufactured or produced and sold) and on goods sold through commercial invoices (even if they were not manufactured or produced).
The impugned order, therefore, cannot be sustained and needs to be set aside - Appeal allowed.
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2024 (5) TMI 124
Refund of unutilized input credit - inputs and/or input services used in the export of goods or services as provided under Rule 5 of CENVAT Credit Rules, 2004 read that Notification No. 5/2006-C.E. (N.T) dated 14.03.2006 - period January, 2009 to March, 2009 - HELD THAT:- In view of the detailed examination of the all five conditions of Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No. 5/2006-C.E. (N.T) dated 14.03.2006, in the context of factual matrix of the case, it is found that the appellant is eligible for refund of Cenvat credit of inputs availed during the quarter January, 2009 to March, 2009 after adjusting/deducting for the Cenvat credit utilized, thereby arriving at the correct amount of Cenvat credit on inputs which could not be utilized for payment of tax or duty as Rs.3,44,804/- (Rs.23,32,780/- minus Rs.49,87,976/-). Further, the amount of Cenvat credit of input services which could not be utilized and by restricting the same to the extent of ratio of export turnover to the total turnover as per the prescribed formula, the eligible Cenvat credit for refund is arrived at Rs.77,754/-. Thus, the total eligible amount of Cenvat credit refundable to the appellants is worked out as Rs.4,22,558/-, out of the total refund claim filed for an amount of Rs.13,37,072/-.
There are no merits in the impugned order dated 21.08.2018, insofar as the adjudged demands were confirmed on the appellant by the learned Commissioner (Appeals), upholding the order of the original authority and by rejecting the appeal filed by the appellant.
The adjudged demands confirmed on the appellants being ineligible refund of Cenvat credit and rejection of eligible refunds, in the impugned order dated 21.08.2018 is liable to be set aside. The eligible refund of Cenvat Credit in terms of Rule 5 of CENVAT Credit Rules, 2004 read with Notification No. 5/2006-C.E. (N.T) dated 14.03.2006 is re-determined as Rs.4,22,558/- - the impugned order is set aside - appeal allowed.
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2024 (5) TMI 67
Process amounting to manufacture - activity of labelling - Availing the cenvat credit of the duty paid by its Jammu unit - whether the labelling/re-labelling or putting additional labels on the containers in the Taloja unit amounted to manufacture in terms of Note 3 to Chapter 18 of the Central Excise Tariff Act? - suppression of facts or not - Extended period of Limitation.
While contention of the appellant is that the same does not amount to manufacture, on the other hand according to the respondent, as per Note 3 to Chapter 18 of the Central Excise Tariff Act, the above activity amounts to manufacture.
HELD THAT:- The word ‘manufacture’ includes any process which is incidental or ancillary to the completion of a manufacture product; any process which is specified in relation to any goods in the Section or Chapter notes of the First Schedule to the Central Excise Tariff Act as amounting to manufacture; or any process which in relation to the goods specified in the Third Schedule involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer.
By way of the amendment, the word ‘and’ has been replaced by the word ‘or’ between the expressions ‘labelling or re-labelling of containers’ and ‘repacking from bulk packs to retail packs’. Prior to 01.03.2008, the legislative intent was quite clear. The process to constitute manufacture should either be labelling or re-labelling of containers and repacking from bulk packs to retail packs. This process was construed to be one whole. In other words, the activity should not only include labelling or relabelling of containers but the same should relate to repacking from bulk packs to retail packs. This was one activity. The other activity was adoption of any other treatment to render the product marketable to the consumer. Therefore, the legislature was quite clear that if either of the two processes were followed, the same would amount to manufacture.
It is already noticed the definition of ‘manufacture’ in the Central Excise Act. Any one of the processes indicated in Note 3 to Chapter 18 of the Central Excise Tariff Act would come within the ambit of the definition of ‘manufacture’ under Section 2(f)(ii) of the Central Excise Act - There is no factual dispute as to the activity carried out by the respondent at its Taloja unit. Whether the goods are brought from the Jammu unit or are imported, those are relabelled on both sides of the packs containing the goods at the Taloja unit of the respondent and thereafter, introduced in the market or sent for export. In terms of Note 3 to Chapter 18, this process of re-labelling amounts to ‘manufacture’.
Appeal dismissed.
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2024 (5) TMI 66
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - the declaration under the scheme cannot be processed as the conditions specified in Boards Instructions to manually process the declaration has not been fulfilled - HELD THAT:- SVLDRS was a ‘dispute resolution-cum-amnesty scheme’ launched with the objective of reducing litigation relating to legacy taxes so as to benefit compliant taxpayers settle their old cases. It was hence a beneficial scheme. The principle consistently held by Constitutional Courts in implementing such schemes is that when substantial justice is pitted against technical considerations, it would be always necessary to prefer the ends of justice.
It is pain to observe that the scheme which was meant for reducing litigation, appears to be driving the hapless applicants to continue to litigate even for implementing the scheme, for no fault on their part. Understandably, the scheme would apply only when a litigation is pending in appeal. To settle that dispute the tax payers would opt for the benefit of such a scheme so that they pay the tax as prescribed within the time frame provided and put an end to the litigation and buy peace of mind. But the attitude of the Department as could be seen from the present case, rather pushes the tax payer, pending one litigation, to approach High Court and obtain a direction, which is certainly not the design of any statute, not to speak of the SVLDRS.
The appellant is made to reach out to higher judicial forum incurring further expenses because of faults which are not attributable to him. The computer system not generating the required form-4 should not prove to be an expensive affair for the tax payer who opts for settlement, pays tax as demanded in time and thus discharges his burden but is denied substantive justice on technical ground and is forced into further litigation.
The respondent Department directed to manually process the request of the petitioner for issue of ‘Discharge Certificate’ within four weeks from the date of receipt of a copy of this order - appeal disposed off.
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2024 (5) TMI 65
Entitlement for refund of input credit in cash, which was neither transitioned in accordance with TRAN-1 (GST) procedure into the new regime nor got reflected in the ER-1 or revised ER-1 return post 01.07.2017 - whether the said refund could have been granted in accordance with the provisions of existing law or otherwise, except to the extent that the refund, if eligible, will still be admissible irrespective of any provisions contrary to this provision contained under the provisions of existing law, other than unjust enrichment?
HELD THAT:- The perusal of CCR, 2004 under the existing law clearly brings out that the refund of unutilized Cenvat credit can be made only for specific purpose covered under Rule 5, 5A and 5B, subject to certain prescribed/notified procedure, conditions and limitations etc., as may be specified or notified by notification in this regard. They have also admittedly not filed any revised ST-3 within the specified tax limit as would have been otherwise required under Section 142(9)(b).
Reliance placed by Revenue on the judgment of Hon’ble High Court of Jharkhand in the case of Rungta Mines vs CCE, Jamshedpur [2022 (2) TMI 934 - JHARKHAND HIGH COURT] is quite relevant to appreciate the scope of Section 142(3) of the Act. In this case, it was held that the provision of Section 142(3) does not entitle a person to seek refund where no such right occurs under the existing law or under new CGST regime in terms of provision of CGST Act and the rules framed and notification issued thereunder. Meaning thereby, Section 142(3) does not confer a new right, which never existed under the old regime to the manner of giving relief, if the person is not entitled under the existing law - The ratio of the aforesaid judgment is squarely applicable to the facts of the case, in so far as the interpretation of Section 142(3) of the Act is concerned. It must also be noted that a plain reading of this provision under the Act clearly supports this interpretation.
Relying on the judgment of Hon’ble High Court of Jharkhand in the case of Rungta Mines, it is found that when there was no provision for grant of refund in cash in respect of tax paid/credit taken in respect of such input in the existing law, i.e., the Central Excise Act and Cenvat Credit Rules, 2004, then the refund cannot be granted in cash in respect of such unclaimed/unutilized credit on input. The options available for getting cash refund are clearly covered within the different provisions under the Act viz., Section 140, 142(3) & 142(9)(b) - In the instant case, admittedly, neither Section 140 was followed nor Section 142(9)(b) was availed. Therefore, the cash refund, by virtue of Section 142(3) would not be admissible in the facts of the case.
There are no infirmity in the Order passed by the Commissioner (Appeals), upholding the rejection of refund in cash, amounting to Rs.14,40,627/- by the Original Authority - appeal dismissed.
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2024 (5) TMI 64
Levy of Personal Penalty on the Director of the company and Drivers of the trucks (transporters) - Penalties u/r 26 of CER - Abetment - Clandestine removal - gutka - evasion of duty - reasons to believe - non-application of mind - non-speaking order - HELD THAT:- It is true that the transporters and trucks drivers may or may not be very well educated. It is also a fact that every truck driver and transporter who transports commercial goods carries with him the Bill to cover the goods which he was transporting. Every driver takes this precaution because if there is a check by any authority on the way, he can show the Bills. Secondly, once the goods reach the destination he shows the Bills to the recipient and gets an acknowledgment that the goods in the Bills received. Therefore, no matter how less educated the driver might be, he will certainly know that he has to carry the goods only with the Invoice or Bill. Therefore, there are no force in the submissions of the appellant that the penalties imposed on them must be set aside.
The penalties imposed under rule 26 on the appellants upheld - Appeal allowed.
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2024 (5) TMI 63
Undue delay in processing refund - Duty was paid under protest - returning the claim application for refund holding to be pre-mature - applicability of time limitation - HELD THAT:- The delay of more than 10 years in finalizing the matter is shocking. No seriousness has been shown in the matter by the Divisional Authorities even though they were aware of the matter being pursued by the Appellant before higher Appellate forums. This being so the refund claim is restored back to the files of the learned Original Authority for proper disposal. In case the claim is sought to be rejected partially or in full, notice may be given to the Appellant following the principles of natural justice and afford a reasonable and time bound opportunity to the appellant to state their case both orally and in writing if they so wish, before issuing a speaking order in the matter disposing of the refund claim.
Considering the huge delay and hardship already faced by the Appellant, it is desirable that the jurisdictional Commissioner monitor the timely disposal of the matter in terms of departmental instructions and the directions given herein to the Original Authority, for which a copy of this order is being marked to him.
Appeal allowed.
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2024 (5) TMI 62
Clandestine removal - case of the department is mainly based upon dairies and statements of various persons - retraction of statements - reliability of statements - denial of cross-examination - existence of corroborative evidences or not.
Demand of duty based on five pocket sized dairies - HELD THAT:- The seizure of the said diaries from the appellant’s factory as sought to be shown by the investigation is not established; and, having wrongly shown as seized from the factory premises by the investigation; weakens evidentiary value of the said diaries - the said dairies contain certain names and figures which are taken as weight of the finished goods and duty demand has been worked out on that basis. Some of the buyers of the finished goods, whose names are shown in the diaries, have stated in their statement that they have purchased the goods from the appellant firm with as well as without invoice and that in respect of goods purchased without invoice, payment was made in cash, however cross-examination of the said buyers has been denied by the Learned Commissioner without giving any justifiable reason; the said statements are therefore not relevant and admissible as evidence.
It can been seen that once untested statements and rough records/diaries are discarded, there is no tangible evidence, absent which case of clandestine removal cannot be sustained as held in the decision of this tribunal in the case of Vishwa Traders Pvt Ltd V. Commissioner of Central Excise [2011 (10) TMI 94 - CESTAT, AHMEDABAD] - the demand of duty of Rs. 2,22,48,302 based on said dairies as worked out at Annexure X – VII is not tenable and is liable to be set aside.
Demand of duty based on weighment slips/details - HELD THAT:- The third party records under the statements of buyers and weighment bridge operators cannot be straightway relied upon having denied cross-examination of the said person to the appellants. Further, the said party who has allegedly purchased goods from the appellant without invoice has not been made party to show cause, may indicate that the statements might have been obtained from the parties by way of inducement; the said statements and records produced thereunder therefore cannot relied upon to impose duty upon the appellant firm in absence of concrete and corroborative evidence in this behalf. In view of above discussion, duty demand raised cannot be sustained.
Demand of duty based on rough accounts (Rojmel) of alleged buyers namely Ketan Tulsidas Sangani and Rajubhai Kacha - Demand of duty based on the duplicate invoices recovered from the factory of appellant firm - HELD THAT:- No tangible and corroborative evidence viz. buyers statement, transportation etc have been gathered to substantiate the allegation of removal of goods under earlier invoice number without payment of duty. Even, shortages of raw material and discrepancies in maintenance of daily stock account as pointed out by the department, needs to be corroborated with tangible and sufficient evidence to bring home the serious charges of clandestine removal, which are clearly absent; case of department cannot be sustained on account of weak and insufficient evidence. It has been consistently held in several judicial pronouncements of the Hon’ble High Court and Apex Court that in case of clandestine manufacture and removal of goods, revenue has to prove it beyond doubt.
The allegation of clandestine removal of goods as made out against the appellant firm is not substantiated with tangible and sufficient evidence; consequentially duty demand cannot be sustained and hence penalties upon all other appellants are also liable to be set aside.
The impugned order is set aside. Appeals are allowed.
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2024 (5) TMI 8
Recovery of rebate claim - Adjusted rebate claims towards their existing liabilities - petitioner's eligibility for rebate on the exports made during months of March, 2013; July, 2011; December, 2011; October, 2011; and January, 2011 - HELD THAT:- Although the Department succeeded before the Appellate Commissioner, vide Order-in-Appeal and the petitioner's revisions were dismissed on 31.03.2014 and recovery were ordered in terms of Order-in-Original, which stands confirmed by the Appellate Commissioner's Order-in- Appeal, the fact remains that these orders have been set aside and the case has been remitted back to the respondents to consider the issue afresh as far as rebate claim for Rs. 27,71,599/-. Thus, there is no demand that is remaining in force to be unenforced as on date for a sum of Rs. 27,71,599/-.
There is no justification in adjusting the above said amount of Rs. 27,71,599/- from the rebates on exports made by the petitioner, which the petitioner is otherwise entitled to. Adjustments have been made against the respective Order-in-Original have already been given above. Hence, the amounts adjusted have to be refunded back to the petitioner together with interest. In case, in the remand proceedings, the petitioner is held ineligible for the rebate on the exports made by them in the month of April, 2012, the respondents can independently recover the amount from the date of other amount that may be refundable as on the date of the order to be passed by the Revisional Authority.
These Writ Petitions are allowed.
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2024 (5) TMI 7
Withdrawal of Compounding scheme - Declaration made in the year 1997-98 can be treated as the declaration for the year 1998-99 under Section 3A of the Central Excise Act read with Rule 96ZO(3) of the Central Excise Rules, 1944 or not - whether the present applicant had withdrawn its offer at the beginning of the Financial Year 1998-99? - HELD THAT:- The first communication that the applicant wrote to the revenue authorities is dated 15.6.1998 when it indicated its intent to discharge duty liability on actual production basis. However, prior to that date, for the month of April, 1998, the applicant had already discharged duty liability on compounded basis. Having done that, the applicant had clearly indicated to the revenue authorities its intent to remain under the benefit of the compounding scheme for the Financial Year 1998-99. It is self-contradicted contention being advanced that though the applicant had paid up the compounding fee for the month of April, 1998, it had not agreed to be retained under the benefit of the compounding scheme.
As to the mode in which the applicant may ever have applied to discontinue the benefit of the compounding scheme, Rule 96ZO(3) of the Rules leaves no doubt that a declaration was required to be filled by the applicant to be admitted to the benefit of the compounding scheme. It must have been filled at the relevant time i.e. August, 1998, in terms of the said provision. Clearly, the applicant was not required to submit the same on year to year basis. Once the scheme has been interpreted by the Supreme Court, it is mandatory that option once exercised for a financial year, may not be withdrawn midway.
The only recourse that applicant may have taken may be to apply to the jurisdictional authority to discontinue the benefit of the compounding scheme from the beginning of the next Financial Year i.e. 1.4.1998. For such option to be exercised, the applicant ought to have made that application before the date i.e. 1.4.1998, and in any case before making the deposit of the compounding fee for the month of April, 1998.
Having done otherwise, the applicant lost the opportunity to withdraw from the compounding scheme for the Financial Year 1998- 99.
Application dismissed.
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2024 (5) TMI 6
Method of Valuation - Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 or cost plus job work charges method to be adopted by them at the time of clearance - receiving goods from principal manufacturer namely M/s. Marico Industries and carrying out job work on the goods - demand alongwith interest and penalty - HELD THAT:- A Coordinate Bench of this Tribunal in M/S. BHAVANI ENTERPRISES, SREE MOOKAMBIKAI POLYMERS, M/S. SMITH ENTERPRISES VERSUS COMMISSIONER OF CENTRAL EXCISE, PONDICHERRY AND VICE-VERSA [2018 (2) TMI 139 - CESTAT CHENNAI] has examined an identical matter, wherein they have observed 'it needs to be mentioned that Rule 8 applies when goods are not sold. The goods (HDPE bottles) are sold by appellant to M/s. Marico. The appellant does not captively consume the goods nor does M/s.Marico consume it on behalf of appellant.'
The impugned orders are not sustainable and merits to be set aside - Appeal allowed.
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