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Central Excise - Case Laws
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2022 (6) TMI 1260
Quashing of prosecution under Sections 9 and 9-AA of the Central Excise Act, 1944 - quashing on the ground that the CESTAT has granted stay on the recovery of the tax and penalty amount - HELD THAT:- It is an accepted and admitted case that the appeal preferred by the respondents is pending before the CESTAT and has not been adjudicated and decided. On examination of stay order which directs the appellant therein, namely, M/s Kavveri Telecom Products Limited, to make pre-deposit of Rs.15 lakhs. Therefore, there is no exoneration or finding on merits by the CESTAT on the subject matter of the criminal complaints. In the said facts, the High Court was incorrect and wrong in quashing the criminal prosecution only on the ground that the tribunal has granted stay, subject to condition of pre-deposit, of the recovery of the tax and the penalty amount. Petition allowed.
2022 (6) TMI 1259
Clandestine Removal - Cigarettes - unaccounted stock - It is alleged that no raw-material was shown to have been issued for manufacturing of 9,80,000/- cigarettes (98 cartons) which was lying in stock - no entry for receipt or issue of raw-material after 28.04.2010 - HELD THAT:- It is found from the facts on record that the sole reason for confirming the above demands and imposing penalties on Appellants is alleged incriminating papers/ records seized from third parties viz. traders, railway agent and transporter and their statements. None of the alleged incriminating documents and papers were seized from M/s ETCL or person connected with the said firm. The central excise duty is on manufacture and removal of goods and it can be recovered from the manufacturer when there is evidence of manufacture and removal of goods. The charges of clan....... + More
2022 (6) TMI 1212
Extended period of Limitation - suppression of facts or not - details of trading was available in the Balance Sheet of the respondent during the relevant period and that there was much confusion during the relevant period as to whether credit could be availed in respect of trading activities and the issue was in litigation leading to perversity - mere availability of details of trading in Balance Sheet is sufficient to drop the demand for extended period on the ground that there was no suppression, or not - attributing the prior knowledge of trading activity of the respondent ignoring the fact that the respondent produced the Balance Sheet only during the investigation and not prior to that. HELD THAT:- Undisputed facts of the case are, as recorded in paragraph 6 of the show cause notice, it was issued based on the balance sheet for the y....... + More
2022 (6) TMI 1211
Levy of Penalty u/r 26 of CER, 2002 - Allegation of clandestine removal - Failure to account for the manufactured goods properly and on visit of the officers, the excess goods were found which was lying unaccounted - Polished vitrified Tiles - appellant claims that the unaccountal of goods is due to mis-match and cessation of the factory and the concerned staff has left the job - Confiscation of such excess found goods - Redemption Fine - Penalty - HELD THAT:- It is found from the facts, that the appellant in his statements recorded by the investigating agency nowhere stated that the goods found excess in the factory were lying for clandestine removal therefore, the serious allegation made by the department that the goods were kept for clandestine removal without payment of duty is not supported by any evidence. The appellant has stated i....... + More
2022 (6) TMI 1179
CENVAT Credit - input services - GTA service - sale of goods by using the said transportation service is on FOR basis - HELD THAT:- The documents submitted by the appellant which were also placed before the lower authority such as invoices, it clearly established that the freight was not separately charged from the customers the same was borne by the appellant therefore, it is the part and parcel of the invoice value and the excise duty was charged on the said value. As per this undisputed fact, it is held that the appellant is entitled for the Cenvat Credit on GTA Services. The same issue on the identical fact has been decided by this Tribunal in the case of M/S ULTRATECH CEMENT LTD. VERSUS C.C.E. KUTCH (GANDHIDHAM) [2019 (2) TMI 1487 - CESTAT AHMEDABAD] and M/S SANGHI INDUSTRIES LTD. VERSUS C.C.E. KUTCH (GANDHIDHAM) [2019 (2) TMI 1488 -....... + More
2022 (6) TMI 1178
Levy of penalty - wrong availment of CENVAT credit - suppression of fact or not - voluntary reversal of the amount - period July 2009 to July 2010 - HELD THAT:- The Adjudicating Authority imposed a penalty under section 11 AC on the basis of a proposal made in the SCN under Rule 15 read with section 11 AC. During the relevant period there was no such provision for penalty in respect of wrong availment of cenvat credit on input services. Therefore, during the relevant period the penalty was not imposable either under Rule 15 (1), 15(2) or 15 (4). Rule 15(4) was made for service providers whereas the appellant is the manufacturer. Penalty set aside - appeal allowed - decided in favor of appellant.
2022 (6) TMI 1177
CENVAT credit - empty packaging drums of cenvatable input - non excisable goods or not - requirement to pay an amount of 6% in terms of 6(3) of the Cenvat Credit Rules, 2004 - HELD THAT:- On the identical issue this Tribunal in MS BANCO GASKETS I LTD VERSUS C.C.E. & S.T. -VADODARA-II [2021 (8) TMI 77 - CESTAT AHMEDABAD] has categorically held that empty packaging material of cenvatable input is not liable for payment either as excise duty or as cenvat credit under Rule 6(3) of Cenvat Credit Rules, 2004. The appellant is not liable to make any payment on clearance on empty drums - Appeal allowed - decided in favor of appellant.
2022 (6) TMI 1176
Refund of unspent balance of Personal Ledger Account (PLA) due to change in taxation regime from central excise to GST with effect from 01.07.2017 - Applicability of limitation as provided under section 11 B is applicable in the case of refund of unspent PLA Balance - HELD THAT:- The Learned Commissioner (Appeals) rejected the refund claim on the ground that the limitation under 11B is applicable according to which the claimant should have filed the refund within the one year from date of payment. In case of PLA balance, it is not deposited as a duty but it is deposited as advance towards the duty. The PLA Amount takes the color of excise duty only when it is utilized for payment of duty on clearance of excisable goods. The unspent balance of PLA is only advance not duty therefore, Section 11B is not applicable. The Tribunal in the case o....... + More
2022 (6) TMI 1175
Recovery of CENVAT Credit - inputs - alleged non-receipt of ‘inputs’ in excess of the tolerance margin of 0.4% at the facility of the appellant as evidenced by their own goods receipt note (GRN) - HELD THAT:- Availment of CENVAT credit of duties paid on inputs is enabled by rule 3 of CENVAT Credit Rules, 2004. The credit taken by the appellant is the duty of central excise paid by the supplier as recorded in the invoices and any difference in quantity, manifested in ‘goods receipt note (GRN)’ on actual weighment at place of receipt, does not alter the tax thus borne on the goods except when credit accrues to the supplier through appropriate debit notes raised by recipient. No such document is placed on record. There is no evidence of any of inputs having been returned to supplier or rerouted elsewhere. The lower au....... + More
2022 (6) TMI 1133
Recovery of dues - priority over of the dues - Whether in the absence of any provisions providing for First Charge in relation to Central Excise dues in the Central Excise Act, 1944, the dues of the Excise department would have priority over the dues of the Secured Creditors or not? - HELD THAT:- The petitioner-Bank is having first charge over the property belongs to the respondent No.3 and prays for deciding the matter in the light of the law laid down by Hon'ble Apex Court in the case of PUNJAB NATIONAL BANK VERSUS UNION OF INDIA & ORS. [2022 (2) TMI 1171 - SUPREME COURT], where it was held that the provisions contained in the SARFAESI Act, 2002, even after insertion of Section 11E in the Central Excise Act, 1944 w.e.f. 08.04.2011, will have an overriding effect on the provisions of the Act of 1944. In view of the aforesaid judg....... + More
2022 (6) TMI 1132
Levy of penalty u/r 8 (3A) of Central Excise Rules, 2002 - Freezing of Bank accounts of petitioner - non paid duty - HELD THAT:- Though the rule clearly prescribes the penalty however, the Revenue has not followed the principle of natural justice in as much as they have not issued any SCN and no opportunity was given to the appellant to defend or explain their case. It is a settled law that even though there is no explicit provision for issuance of SCN, as per the Principle of natural justice an assessee should be given sufficient opportunity to explain their case particularly for invocation of penal provision. In the present case admittedly neither SCN was issued to the appellant nor was any opportunity given. The penalty is liable to be set aside only on the ground of principle of natural justice - Penalty set aside - appeal allowed - decided in favor of appellant.
2022 (6) TMI 1083
Clandestine removal - shortage of stock - removal of inputs without payment of duty - appellant have strongly submitted that since they are maintaining the stock of inputs in respect of trading as well as manufacturing, the stock taking was not properly done and therefore, the alleged removal of inputs and the shortage found in the factory was considered one sided as manufacturing stock - HELD THAT:- From the reconciliation chart given by the appellant, it appears that after reconciliation of trading and manufacturing stock the difference is not such which was alleged by the department therefore this fact needs to be reconsidered after proper verification. Accordingly, the appeal in case of M/s. CITIZEN UMBRELLA MANUFACTURES LTD. is disposed by way of remand to the adjudicating authority to decide afresh considering the above reconciliati....... + More
2022 (6) TMI 1054
Invocation of extended period of limitation - CENVAT Credit - installation of pre-fabricated structures - period September, 2009 to December, 2010 - HELD THAT:- As the transactions in question is before 1.7.2012, when Exclusion Clause was introduced in Rule 2 (l), thus, the transaction in question does not fall within the mandate of Exclusion Clause. Accordingly, the show cause notice is wholly misconceived. Further, there are no case for invocation of extended period of limitation. Appeal allowed - decided in favor of appellant.
2022 (6) TMI 1040
Refund of CENVAT credit of CVD and SAD paid by them - rejection of claim invoking Rule 9 (1) (b) of Cenvat Credit Rules, 2004 - Department is of the view that credit is not eligible as appellant has paid the duties only after issuing a demand notice - HELD THAT:- On perusal of the alleged demand notice, it is merely in the nature of an intimation letter and has not been issued invoking any provisions of Customs law or Excise law. Further, in such intimation also, there is no allegation of any fraud, collusion or suppression of facts with intent to evade payment of duty. There is no evidence placed before me to establish that the duties were paid after adjudication and rendering a finding of fraud, collusion or suppression of fact with intent to evade payment of duty. In such circumstances, the credit cannot be denied - the appellant is el....... + More
2022 (6) TMI 978
Refund of Service tax - service tax invoices subsequently cancelled by issuing credit notes to the customers which had the effect that payment of service tax on such cancelled invoices were not required as per law - parties renegotiated the invoices issued under the Finance Act, 1994 and the Appellant had issued a credit note which annulled/cancelled the invoices issued and the denial of refund of the stated amount would be in violation of the Statutory Provisions - amount of tax paid under Finance Act, 1994 due to renegotiation of invoice with the service receiver and having given a credit note of the payment made, the tax so paid should have to be refunded to the appellant - HELD THAT:- In MADRAS PORT TRUST VERSUS HYMANSHU INTERNATIONAL [1979 (1) TMI 105 - SUPREME COURT], it is held that it is high time that the Government and Public Au....... + More
2022 (6) TMI 977
Evasion of Central Excise duty - non-maintenance of invoices - non-payment of applicable duty - HELD THAT:- The show-cause notice alleges that the appellants have evaded duty of Rs.22,56,445/-. The verification report submitted by the Department in respect of 62 invoices as per the direction of the Bench vide order dated 15.01.2020, shows that the appellants have discharged the duty of Rs.20,91,667/-. Therefore, it is found that to that extent, the Demand does not sustain. The duty of balance amount of Rs.1,64,778/- appears to have been not paid as per the verification report. Though the appellant claims that he has paid the duty, but no evidence of the same has been provided. Moreover, the Range Superintendent has given a fair opportunity and there are no reason whatsoever to dis-believe its report and accept the submission of the appell....... + More
2022 (6) TMI 976
Invocation of Extended Period of Limitation - international organization or not - applicability of N/N. 108/95-CE dated 28.08.1905 - mistake, willful misstatement or suppression of material facts or any fraudulent activity or not - Department has opined that the Appellants are not eligible for the exemption as JBSE cannot be considered as an international organization within the scope of the Notification - HELD THAT:- Ld. Sr. Counsel has fairly submitted that they are not arguing the case on merits. However, they are disputing the invocation of extended period for issuance of the show cause notice. It is found that a certificate was given by M/s. MSEB on 23.10.2000 and the same was counter-signed by the Principal Secretary (Energy), Govt. of Maharashtra. The Appellants vide letter dated 14.02.2001 have informed the jurisdictional Asstt. C....... + More
2022 (6) TMI 975
CENVAT Credit - input services - Manpower Supply Agency Service - GTA Inward Freight Service - Security Agency Service - Pest Control Service - HELD THAT:- The same services in the appellant’s own case for the different period has been allowed by this tribunal in INTEGRA ENGINEERING INDIA LTD VERSUS C.C.E. & S.T. -VADODARA-II [2021 (10) TMI 1336 - CESTAT AHMEDABAD]. The appellant is entitled for the Cenvat Credit on the services in question following the decision of this tribunal. The demand in respect of services namely Manpower, Freight Security Service and Pest control service is not sustainable - appeal allowed - decided in favor of appellant.
2022 (6) TMI 974
CENVAT Credit - input services - Supply of Tangible Goods services - Hiring forklifts for use of handling the material within the factory - HELD THAT:- The contention of the revenue is not correct in as much as it contends that the Supply of Tangible Goods service is not falling under definition of Input service in terms of Rule 2(l) of Cenvat credit Rules, 2004. Though, it is agreed that it does not appear in the inclusion clause of definition however, the main clause of definition is very wide. There is no dispute that the Forklift which is taken on hire under Supply of Tangible Goods service are indeed used for handling all the material which is the part and parcel of process of manufacturing the final product within the factory. Therefore, the forklift which is taken on hire is directly used for the activity of manufacturing of final ....... + More
2022 (6) TMI 962
Levy of excise duty and NCCD under the Central Excise Act, 1944 - levy and collection of National Calamity Contingency Duty (NCCD for short) on tobacco and tobacco products - Whether after coming into force of Constitutional 101st Amendment Act, w.e.f 01.07.2017, the levy of Basic Excise Duty and levy of NCCD which is a duty of excise on tobacco and tobacco products is constitutionally valid? - simultaneous levy of GST under Article 246-A and levy of basic excise duty and NCCD under Article 246 qua tobacco and tobacco products - Excise duty has been levied on a separate and distinct aspect namely manufacture of tobacco products or not? - levy of NCCD as surcharge on tobacco products - levy of excise duty on tobacco and tobacco products is violative of Article 14 of Constitution of India or not? HELD THAT:- It is a well settled rule of sta....... + More