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Central Excise - Case Laws
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- 2020 (3) TMI 1155
Maintainability of appeal - challenge on the ground that the question involved in the appeal had a direct bearing on the rate of duty and value of goods for the purposes of assessment - error apparent on the face of record or not - section 35G read with section 35L of the Central Excise Act, 1944 - HELD THAT:- In the present case, the applicant has invoked the review jurisdiction of this court on the ground that there is an error apparent on the face of the record. The Supreme Court in MEERA BHANJA VERSUS NIRMALA KUMARI CHOUDHURY [1994 (11) TMI 440 - SUPREME COURT] has held that an error apparent on the face of the record must be an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. It may be pertinent to note that the l....... + More
- 2020 (3) TMI 1097
Maintainability of petition - non-compliance with the requirement of pre-deposit - Section 35F of the Central Excise Act, 1944 - HELD THAT:- Today, Mr. Jorgay Namka, learned counsel for the petitioner has submitted that the petitioner is not in a position to pay the requisite amount in terms of Section 35F of the Act - If that be the position, we have no alternative but to dismiss the IA. Application dismissed.
- 2020 (3) TMI 1096
Recovery of dues - sick company - Wrongful adjustment of sanctioned refund - demand of interest - relevant period starting from 19 March, 2017 (expiry of three months from the date of the order dated 20 December, 2016 passed by the Tribunal) till the date of payment of refund amount or not - HELD THAT:- It is not possible to accept this submission of the learned Authorized Representative of the Department. As noticed by the Commissioner (Appeals), the dues pertaining to the orders dated 18 October 2001 and 23 February 2001 confirming the demands, were not disclosed by the Department or the earlier management to the BIFR and the same were not considered in the scheme sanctioned by BIFR. The BIFR had also by order dated 22 May, 2002 protected the management from recovery of dues which were not disclosed by the old management or not provided....... + More
- 2020 (3) TMI 1053
CENVAT Credit - goods which were finally cleared were exempted - benefit of Rule 6(3) of the Cenvat Credit Rules - Whether the benefit of rule 6(3) of the Cenvat Credit Rules is available to the assessee, irrespective of his conduct and malafide intention to avail cenvat credit on the inputs used in manufacturing of exempted goods? HELD THAT:- There is no dispute raised on the fact that till 20.8.2012, the nature of pipes manufactured was not determined as exempt because GMADA was not granted exemption certificate. The respondents were not maintaining separate books of account. The goods cleared were on payment/adjustment of duty under Rule 6(3) and also dutiable goods albeit in small ratio. The finding recorded by the Tribunal that dutiable goods were cleared on 5.11.2012 has not been challenged - The contentions raised by learned counse....... + More
- 2020 (3) TMI 1052
CENVAT Credit - duty paying invoices - rejection for the reason that invoices of input service bear handwritten serial number - HELD THAT:- In the appellant’s own earlier case a show cause notice F.no. V(CH.70) 3-31/DEM/10- 11 dated 30/05/2011 was issued on the same issue that whether the appellant is entitled for Cenvat Credit on the invoice issued by the service provider which bears handwritten serial number. That case was travelled up to this Tribunal in appeal no. E/11069/2015. This Tribunal in KRUPA TRADING COMPANY VERSUS C.C.E & S.T. -VALSAD [2020 (2) TMI 293 - CESTAT AHMEDABAD] decided the matter in appellant’s favour. The reason for denial of the Cenvat Credit in the above decision of the Tribunal and in the present case is absolutely identical. Appeal allowed - decided in favor of appellant.
- 2020 (3) TMI 1001
Extension of time for completion of arbitration proceedings and rendering of the arbitral award - Section 29A(4) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Issue notice. Keeping in view the fact that much time and labour has already been invested in the proceedings, the time for completion of arbitration proceedings and rendering of award is extended till 30.09.2020 reckoned from 18.08.2019 - petition disposed off.
- 2020 (3) TMI 1000
Service of order - principal argument of the learned counsel appearing for the appellant is that at no point of time, he received the Order-in-Original passed by the Deputy Commissioner - HELD THAT:- The Tribunal has held that it is fact on record that the adjudication order was sent to the appellant through registered post on 19.05.2015 and the same was delivered at the premises of the appellant on 25.05.2015. In that circumstance, the date of received of adjudication order is 25.05.2015. Admittedly, the appeal filed by the appellant is with a delay of almost 15 months therefore, the Ld. Commissioner (Appeals) has rightly dismissed the appeal as time-barred. In view of the aforesaid findings of fact arrived at by the Tribunal, it is difficult for us to take the view that the questions as proposed are substantial questions of law falling for the consideration of this Court. Appeal dismissed.
- 2020 (3) TMI 999
Refund of Excise duty - principles of unjust enrichment - HELD THAT:- Mr. Walve and Mr. Ochani, appearing for the respondents, very fairly state on instructions of Mr. Bhanu Jain, Assistant Commissioner, Central GST and Central Excise, that the petitioner’s grievance in the present facts is justified. This as the impugned order is contrary to and in defiance of the orders of the Tribunal which have attained finality. The impugned order dated 30th April, 2019 passed by the Assistant Commissioner of Central GST and Central Excise, is quashed and set aside.
- 2020 (3) TMI 998
Interest on delayed refund - whether the appellant is entitled for interest on the delayed payment of refund either at the rate of 6% or at the rate of 12% of the amount of refund? - Section 11BB of CEA - HELD THAT:- Perusal of the section leaves no doubt that the assessee is entitled to interest if the payment had not been paid to him within 3 months of finalization of the claim at such rate as is prescribed under the law. The Section itself records that the interest be given at such rate, which should not be below 5%, nor should be exceeding the rate at 30% per annum - Similar is the intention of Legislature apparent from Section 35FF of Central Excise Act, 1944. Therefore, as per statute itself, the interest rate may vary within the range of rate at 5% to 30%. The notification as relied upon cannot supersede the statute. Keeping in vie....... + More
- 2020 (3) TMI 911
Condonation of delay of 412 days in filing the present Letters Patent Appeal - HELD THAT:- The applicant has assigned sufficient cause for condonation of delay of 412 days. The application is accordingly allowed. Tax Appeal No. 499 of 2018 is ordered to be restored to its original file. Tax Appeal shall now be notified before the appropriate Court taking up such matters.
- 2020 (3) TMI 910
CENVAT Credit - duty paying invoices - It is the case of the Revenue that no material was received by the appellant against these invoices and only invoices were received and CENVAT Credit has been taken - HELD THAT:- As far as the invoices issued by M/s Swastik Insulators are concerned, two of these pertain to the invoices issued against the materials supposed to have been received by them from M/s Rajeswari Metallurgicals Limited, Bhiwadi, Mumbai. In respect of these invoices, the evidences in favour of the Revenue are the statements of Shri R.S. Elanjeran, Proprietor of M/s Swastik Insulators given on 31.03.2008 in which he confirmed that they have not received any material nor sold it to the appellant and have only issued invoices and made entries in their records and registers. Shri Elanjeran has not been cross examined as he was unw....... + More
- 2020 (3) TMI 909
Clandestine removal - shortage of goods - wrong calculation of abatement during the period 2009-10 - Shortage of goods compared to RG-1 register - CENVAT Credit availed on capital goods which were received under the cover of invoices issued in the name of another company. HELD THAT:- After recording that it was indeed a merger of the company as per the order of Hon’ble High Court as per which the assets and liabilities of the merged company were transferred to the transferee company i.e. the appellant and after recording that CENVAT Credit cannot be denied to them, the Ld. First appellate authority sought to deny it only on the ground that the appellant should have approached the authorities to obtain permission for availing the CENVAT Credit, in terms of the proviso to Rule 9(2) of CCR 2004. A perusal of this rule would show that i....... + More
- 2020 (3) TMI 908
Mis-classification of goods - Plant Growth Regulators (Micronutrients) - Bio-fertilizers - Bio-pesticides - whether Plant Growth Regulators under Chapter Heading 3808of Chapter 38 to the First Schedule of the Central Excise Tariff Act? - HELD THAT:- The issue is no more res integra as this very Bench of the Tribunal has settled the issue in favour of the assessee in the case of DR K.R.K. REDDY, DIRECTOR, SRI BIO TECH LABORATORIES LTD VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, HYDERABAD - I (VICE-VERSA) [2019 (8) TMI 1251 - CESTAT HYDERABAD] where it was held that the demand raised by the department classifying them as Plant Growth Regulators under 3808 cannot sustain - demand set aside. Bio-pesticides of microbial origin - Whether classified under Chapter Heading 3808 as against tariff item 3002of the Central Excise....... + More
- 2020 (3) TMI 907
Valuation - crank cases - job-work - captive consumption - applicability of Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 read with Rule 10A ibid - demand of short paid duty alongwith interest and penalty - extended period of limitation - HELD THAT:- There was no scope for treating the appellant as an agent of M/s. M & M in any respect and for any purpose whatsoever. It is also made clear that M/s. M & M has agreed to purchase the components from the appellant and further, it has also an insurance clause requiring insuring of premises as well as the equipment with premia being paid by the appellant - There is no dispute that the appellant has in fact discharged the duties before supplying the goods in question to M/s. M & M which is based on the purchase price, as given in the r....... + More
- 2020 (3) TMI 901
Clandestine removal - copper wires - demand based on various statements - retraction of statements - HELD THAT:- There existed no evidence of threat or coercion on the proprietor of the Appellant firm in recording of the statement of 8th November 2011.Since, no cogent ground for the same has been adduced before us to buttress the same, a mere allegation of the same at this same is ill-conceived. Moreover, the proprietor in the subsequent statements has reiterated the same with minor retractions, and thus it would be far-fetched to hold that there had been gross duress on the proprietor of the Appellant at every instance of tendering his statements on various dates. The counsel of Appellant before the appropriate forum, himself had agreed to proceed with the case without waiting further for cross examination of Panchas, and thus, once the ....... + More
- 2020 (3) TMI 843
Valuation - tin coils of width above 600 mm seized from the godown - non-speaking order - HELD THAT:- The Tribunal had not given any reason and had not considered the non-seizure, however made as if there was a seizure. When the order-in-original was challenged based on certain vital facts, the Tribunal, being the fact finding authority, ought to have given reasons for non-interference of the order-in-original. It is clear that the order of Tribunal is certainly a non-speaking order and the Tribunal failed to consider the grounds raised by the appellant. Merely reproduction of comments from the show cause notice or order-in-original is not sufficient for a Tribunal to dismiss the appeal filed by the appellant. Each and every ground raised should be sufficiently discussed by the Tribunal while passing any order, that too, upon recording th....... + More
- 2020 (3) TMI 842
Imposition of penalty u/r 26 of CER - Allegation of issuance of Cenvatable invoice to various customers without supplying of goods - HELD THAT:- Since, undisputedly, all the evidences relied upon in the present case were already considered by this Tribunal in the case of M/S SUN TEXTILE ENGINEERS, M/S SHAH FOILS LTD. VERSUS C.C.E. & S.T. - SURAT-I [2019 (12) TMI 846 - CESTAT AHMEDABAD]. Therefore, there is no need to again deal with all the common evidences such as pen drives recovered, documents recovered, etc. - In the present case, the only issue is related to imposition of penalty under Rule 26 against the appellant on the ground that they have fraudulently passed on the credit without supplying the goods. The common evidence such as bill conditioning ledger, statements, etc were also considered. As the Tribunal has come to a conc....... + More
- 2020 (3) TMI 841
CENVAT Credit - slag - exempt goods - benefit of N/N. 4/2006-CE dated 01.03.2006 - It is the case of the department that in terms of section 5A(1A) manufacturers are barred to remove absolutely exempted goods on payment of duty and referring to the Board’s Circular No.940/01/2011-CX dated 14.01.2011 - Period of dispute is from November 2009 to August 2014 - HELD THAT:- Reliance can be placed in the case of M/S HINDUSTAN COCA-COLA BEVERAGES PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE [2013 (12) TMI 453 - CESTAT MUMBAI] and M/S NEULAND LABORATORIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, HYDERABAD- I [2013 (11) TMI 1339 - CESTAT BANGALORE]. The Tribunal while dealing with the implication of Board’s Circular dated 14.01.2011 held that there is no provision or Rule under Cenvat Credit Rules, 2004, which puts an obligat....... + More
- 2020 (3) TMI 840
Area Based exemption - goods manufactured in the factory shed at Khasra No. 115 and Plot No. B of Khasra No. 119 - Board Circulars dated 22.12.2010, 17.02.2012 and 01.04.2013 - seizure/confiscation of goods - imposition of penalties - HELD THAT:- It is undisputed that the appellant is entitled to area based exemption with respect to their main unit/ (unit-I) located at Plot F/119. Further, it is undisputed that so far the other two plots are concerned at Khasra No. 115 (Unit-II) earlier M/s Careplus was functioning and availing area based exemption vide declaration dated 27.12.2006. Thus, the appellant unit-II being admittedly the successor of M/s Careplus is also entitled to area based exemption till 27.12.2016. Further, admittedly at the present unit-III of the appellant (Plot B/119), earlier M/s Innovate was functioning and availing ar....... + More
- 2020 (3) TMI 839
Method of Valuation - Rule 11 read with Rule 4 or Rule 10(b)(ii) of Central Excise Valuation Rules, 2000 - related party transaction - inter-connected undertakings - mutuality of interest - the department’s entire case is based on the fact that the appellant in its Annual Returns and Balance Sheets reflected the transaction with JBSL, SRBSL and JBIL as “related party transactions” - extended period of limitation - penalty - HELD THAT:- The show cause notice as well as the impugned order has mis-understood the difference in the concept of “related party” under the Companies Act, MRTP Act and Central Excise Act. In the present case, the department has failed to prove mutuality of interest between the appellant and its buyers. It is settled law that mutuality of interest is a two way street. Further, common dire....... + More