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Central Excise - Case Laws
Showing 1 to 20 of 4715 Records
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2017 (12) TMI 1875
CENVAT Credit - primary argument of UniDeritend Ltd. is that the credit was available to them prior to amendment in Rule 7(d) of the Cenvat Credit Rules, 2004 and therefore they cannot be asked to follow the said Rule 7(d) - Penalty - HELD THAT:- In the instant case, while the invoices were raised prior to the amendment, there is no evidence if the payment was made prior to the amendment. Thus if the credit was available prior to the amendment is also a doubtful proposition. In any case UniDeritend Ltd. has availed the credit of duty paid by them after the amendment and thus the law as it existed at the time when they converted the duty paid by them into cenvat credit would be the law applicable to the said credit. Since at the time of availing cenvat credit, sub-rule (d) of Rule 7 and Explanation 3 of the said rule was in existence at the time of availing credit, UniDeritend Ltd. was required to follow the same and avail the credit only in terms of Rule 7(d) read with Explanation 3. In these circumstances, the demand of reversal of credit is upheld.
Penalty - HELD THAT:- The plain language of the Rule is very clear and leaves no scope for doubt. Under these circumstances, imposition of penalty is justifiable.
Appeal of UniDeritend Ltd. is dismissed and appeal of Revenue is allowed.
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2017 (12) TMI 1840
CENVAT Credit - transit loss - short receipt of inputs - benefit of credit on duty paid by the input supplier of Bulk Liquid Cargo to the extent such cargo was lost during transit, was denied - HELD THAT:- The issue stands decided against the Revenue, in the same assessees case in the decision of the Tribunal reported as COMMISSIONER OF C. EX., VAPI VERSUS SAVITA CHEMICALS LTD. [2007 (4) TMI 404 - CESTAT, AHMEDABAD] - even though the said decision in the same assessees case were placed before the lower authorities, they have tried to distinguish the same on the technical ground by observing that the appellant have obtained claim for the loss either from the insurance or from the supplier. Accordingly, they have not followed the earlier decision.
Such claim of loss from the insurance or from the input supplier has got nothing to do with the assessees entitlement to avail the full CENVAT Credit of the duty paid by the supplier. It may not be out of place to observe here that the input recipient is entitled to the entire duty PAID by the input supplier. The same cannot be varied at the recipients end especially when there is no allegation to show that the goods have been diverted during transit to other person - Admittedly, in the present case, the less receipt of liquid cargo is on account of the transit loss, which is bound to happen in the transportation of the liquid cargo, in which case the credit to that extent cannot be disallowed, especially when there is no variation in the quantum of duty paid by the input supplier.
Credit allowed - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1821
Principles of natural justice - reliability of statement of the witnesses who are not available for the cross-examination - HELD THAT:- The revenue has not taken stand whether the adjudicating authority proposes to rely on the statements of 29 witnesses in respect of whom cross-examination opportunity has yet not been granted to the petitioner. The proceedings cannot be allowed to conclude in such uncertain facts.
It is, therefore, desirable that the revenue may file a counter affidavit to the writ petition disclosing a clear stand in respect of the above within the next four weeks. Two weeks, thereafter, to the petitioner to file a rejoinder affidavit.
List after six weeks.
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2017 (12) TMI 1802
Reopening of proceedings under Section 32 K(3) of the CE Act - It was held by High Court that Whatever may be the grounds, which are pleas of the Respondents, may have been justified, the Respondents did make an attempt by filing an application before the CCESC by invoking Section 32 (K)(3) of the CE Act. That attempt was not successful. - HELD THAT:- The special leave petition is dismissed.
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2017 (12) TMI 1748
Rebate of duty - export of Endothermic Gas Generator and export of imported parts/components of Hosiery knitting Needle manufacture machines - Cenvat credit against CVD reversed as per Rule 3(5A) of the Cenvat Credit Rules, 2004 - rebate was rejected by the jurisdictional Deputy Commissioner on the ground that the goods are not excisable goods, no duty of excise has been paid and Cenvat credit has been reversed at the time of clearance from the factory as required under the Cenvat Credit Rules, 2004.
HELD THAT:- The applicant has not paid any Excise duty on the generator and knitting machines and there is no export of excisable goods. Consequently, the primary condition of export of duty paid excisable goods is not established in this case and thus the orders of Commissioner (Appeals) cannot be faulted on this ground.
As regards the applicant’s argument that they could export the above goods under Bond as per para 3 of Chapter 5 of the C.B.E. & C. Manual, this proceeding does not have any such issue and the subject matter of the Revision Applications is only whether rebate of duty is admissible in this case or not. Further such reversal of credit was mandatory even if the goods were exported under Bond and, therefore, this issue is of no relevance here.
Revision application rejected.
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2017 (12) TMI 1742
CENVAT credit - electricity sold outside the factory - Rule 6(1), 6(2) and 6(3) of the Cenvat Credit Rules, 2004 - maintenance of separate accounts - HELD THAT:- There are no legal and valid ground for interference - SLP dismissed.
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2017 (12) TMI 1736
CENVAT credit - Clandestine removal - Granules - appellant was found to have wrong taken cenvat credit on the inputs which were sold and not used in the manufacturing - HELD THAT:- Though it is contended on behalf of the appellant that the findings arrived at by the Tribunal suffers the vice of perversity. However, these findings when tested on the anvil of the facts on record cannot be faulted with as would give rise to any substantial question of law. Therefore, no indulgence is caused.
Appeal dismissed.
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2017 (12) TMI 1726
Clandestine removal by a benami firm - traded goods or not - HELD THAT:- The matter is required to be remitted back to the Tribunal for re-consideration - We make it clear that we are not expressing any opinion on merits inasmuch as the Tribunal being last fact finding authority ought to have considered the facts in detail and discussed the order passed by Commissioner (Appeals) and give its independent finding after considering the documents which are on record. The order of the Tribunal is quashed and set aside.
Appeal allowed by way of remand.
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2017 (12) TMI 1710
Principles of natural justice - no opportunity to cross examine one Ghanshyam Pandey was afforded - transport of goods took place or not - Assessment Year 1995-96 - HELD THAT:- The fact that the business had closed down by the time the Assessing Authority proceeded to frame the assessment order all over again on 17 October 2006, cannot result in the assessee being visited with adverse consequences since undisputedly he had been insisting from the very beginning that the statement of the said witness was being denied and that an opportunity to cross examine must be provided.
When taxing authorities choose to levy tax or conclude that payment of tax has been evaded on the basis of statements of individuals, the assessee must necessarily be granted an opportunity to cross examine. Such adverse material can neither be introduced nor form the foundation for the imposition of additional tax without an opportunity being accorded to the assessee to challenge the statement in cross examination - this Court finds itself unable to sustain the orders passed by the Assessing Authority as well as the Tribunal.
Revision allowed.
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2017 (12) TMI 1673
100% EOU - Waiver of pre-deposit confirmed by way of impugned orders - Whether this Tribunal has inherent power to grant interim protection against imposition of such condition of mandatory pre-deposit for hearing the appeal on merits under section 35F of the Act or not? - Held that:- The Hon'ble High Court examined the issue of inherent power of the appellate authority to grant interim protection against imposition of such condition and held the first appellate authority is having power to grant interim protection - the provisions of Rule 62(5) of Punjab VAT Act, 2005, and Section 35(F) of Central Excise Act, 1944 are pari materia.
Punjab & Haryana High Court has taken a view in the case of Super Threading (I) Pvt. Ltd. that an application under section 35F of the Act for waiver of pre-deposit is to be entertained by this Tribunal - thus, Tribunal is having inherent power to grant interim protection to the applicant.
Whether the applicants are having a case for waiver of pre-deposit or not? - difference of opinion - the matter placed before the Hon'ble President to refer the matter to the third member to resolve the issues - Held that:- In view of the majority decision, the applicant is directed to make mandatory pre-deposit in terms of Section 35F of Central Excise Act, 1944 within a period of four weeks and to report compliance on 8-1-2018.
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2017 (12) TMI 1671
Rebate claim - rejection on the ground of time bar - export of goods vide ARE-1’s - the entire Revision Application is based on the premise that the Department did not return the Rebate Claim or issued any deficiency memo to the respondent and, therefore, the resubmission of Rebate Claim on 11-10-2013 must be considered as a fresh filing of Rebate Claim by which the period of rebate claim was already over - Held that:- The Government does not agree with the applicant’s view as it is quite evident from the above facts that withdrawal of the claim took place with the discussion, direction, approval, knowledge or consent with the Asstt./Deputy Commissioner of a Central Excise Division and after having accepted this fact a technical stand of no communication from the Department cannot be resorted to. A verbal communication from a public authority like Asstt./Deputy Commissioner of a division with regards to withdrawal of rebate claim is as good as written communication and if a person from the public has acted as per such communication it is bound to be regarded at the behest of the Department. Such fair dealing should also be maintained for the sake of administrative decency and morality.
Government is of the clear view that the applicant does not have any basis to discard the fact of original filing of Rebate Claim on 30-9-2013 and it fully agrees with the Commissioner (Appeals) that resubmission of the claim on 11-10-2013 is in continuation of the original Rebate Claim only and hence the rebate claims filed by the respondent are not time barred - revision application rejected.
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2017 (12) TMI 1666
Rebate claim - time limitation - rejection on the ground of failure to submit pre-intimation to the Jurisdictional Assistant Commissioner regarding input-output ratio and its prior approval under Notification No. 21/2004-C.E. (N.T.), dated 6-9-2006 - rejection also due to re-submission of the rebate claims beyond the period of one year as specified under Section 11B of Central Excise Act - Held that:- The applicant had withdrawn their earlier filed rebate claims from the Division office on their own volition and same were filed later on by which the one year limitation period as specified in Section 11B of the Central Excise Act was already over - The Commissioner (Appeals) has observed in her order that the refund claims were withdrawn suo motu and department did not issue any deficiency note. Hence it amounts to non-filing of the rebate claims on the earlier dates and the claims submitted later on cannot be treated as the same claims which were filed earlier. The Government does not find any error in the above observation of the Commissioner (Appeals) in the face of the facts of the present proceeding and, therefore, the rebate claims are manifestly hit by limitation of one year as already held by the Assistant Commissioner and Commissioner (Appeals) in their order.
The refunds and rebate of duty Section 11B of the Central Excise Act is directly dealing statutory provision and it is clearly mandated therein that the application for refund of duty is to be filed with the Assistant/Deputy Commissioner of Central Excise before expiry of one year from the relevant date. Further in explanation in this Section, it is clarified that refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India. In addition to time limitation, other substantive and permanent provisions like the authority who has to deal with the refund or rebate claim, the application of principle of undue enrichment and the method of payment of the rebate of duty, etc. are prescribed in Section 11B only - Since the time limitation of 1 year is expressly specified in Section 11B and as per this section refund includes rebate of duty, the condition of filing rebate claim within 1 year is squarely applicable to the rebate of duty when dealt by Assistant/Deputy Commissioner of a Division under Rule 18. Thus Section 11B and Rule 18 are interlinked and Rule 18 is not independent from Section 11B.
Non-observance of the conditions of Notification No. 21/2004-C.E. (N.T.) - Held that:- Considering the facts and especially the non-compliance of the condition of the letter dated 18-4-2011 despite of five letters to the applicant by the Range Superintendent, it is evident that non-submission of input-output ratio in respect of each export consignment in time is not a procedural and bona fide lapse only. The Assistant Commissioner in his order has clearly concluded that it was not an inadvertent mistake and rather the claimant knowingly and willingly had not followed the condition of the permission even after repeated reminders to them to follow the condition.
The Government does not find any error in the order of the Commissioner (Appeals) - revision application dismissed.
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2017 (12) TMI 1664
Excisability - intermediate product - clinkers used in the manufacture of cement which was cleared to SEZ units without payment of duty - Held that:- This issue stands covered by the decision of Tribunal in the case of Ultratech Cements Ltd. Vs CCE & ST Tiruchirapalli [2015 (10) TMI 1058 - CESTAT CHENNAI], where it was held that appellants are eligible for exemption under Notification 67/95-CE on clinker captively consumed for manufacture of cement cleared to SEZ units/developers without payment of duty for both the periods prior to and after the amendment of SEZ Act - appeal dismissed - decided against Revenue.
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2017 (12) TMI 1661
Recovery of CENVAT credit wrongly taken or erroneously refunded - Rule 14 of the CENVAT Credit Rules, 2004/section 73 of the Finance Act, 1994 - Held that:- One of the stipulations in the said Rules is that a recovery of CENVAT credit may be made from the manufacturer if it had wrongly been taken and utilized or had been erroneously refunded to him. The Rules, therefore, contemplate that if such a situation arises, a notice to that effect must be given to the assessee for recovery. In the absence of such a notice for recovery, as is contemplated under Rules 14 of the Rules, any action taken or order passed to reject refund claimed would become bad.
The Tribunal has come to the conclusion that in the present case compliance of the Rule 14 had not been made. There is no challenge to the correctness of that finding of the Tribunal. Also, it is seen that the total amount of refund claimed is only about ₹ 2.5 lacs.
The order of the Tribunal is affirmed - The questions of law is answered in favour of the assessee and against the revenue.
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2017 (12) TMI 1645
CENVAT Credit - input services - Rent-a-Cab service - period 1-4-2013 to 28-2-2014 - Held that:- There is no dispute that appellant have availed Cenvat credit in respect of Rent-a-Cab service, which has been excluded from the definition of input service w.e.f. 1-4-2011 as per exclusion clause in the definition of input service therefore Cenvat credit on the Rent-a-Cab service is not admissible - credit cannot be allowed - appeal dismissed - decided against appellant.
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2017 (12) TMI 1629
Valuation - inclusion of value of of chassis in the assessable value of goods cleared by SML - Rule 10A of the Central Excise Valuation Rules - Held that:- Identical issue decided in appellant own case SITA SINGH & SONS (P) LTD. VERSUS CCE, DELHI-IV [2017 (10) TMI 1298 - CESTAT CHANDIGARH], where it was held that the assessee is liable to pay duty in terms of Rule 10A of the Rules i.e. on the value at which the principal manufacturer cleared the goods on payment of duty, therefore, the differential duty is confirmed along with interest.
Demand of duty along with interest is confirmed - penalty set aside - appeal allowed in part.
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2017 (12) TMI 1620
Principles of natural justice - no opportunity given to petitioner to establish his case - Whether in the facts of this case the finding of the Tribunal was perverse in not accepting the affidavit evidence of the constituted attorney of the assessee in which the reason for delay was sought to be explained without giving further opportunity to the assessee to explain delay through the persons to whom the cause of such delay directly attributed?
Held that:- In the instant case, the assessee had taken the point before the Tribunal through an affidavit of its constituted attorney. But no affidavit by the person concerned, who had retired was filed. It is apparent from the order of the Tribunal that no further opportunity was given to the assessee to establish its contention by filing affidavit of the concerned person. In the supplementary affidavit filed before us, the affidavit has been annexed - in the given circumstances of the case, at least a further opportunity should have been given to the assessee to explain the reason for delay. We, therefore, answer the question, on which we have admitted the appeal, in the affirmative and in favour of the assessee.
The order of the Tribunal is set aside and the matter is remanded to the Tribunal for a decision afresh.
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2017 (12) TMI 1610
Manufacture - Whether the red mud arising during the manufacture of aluminium from bauxite ore amounts to manufacture and whether excise duty is leviable on the same? - Held that:- The issue is no longer res integra, inasmuch as this Tribunal in the appellant’s own case MADRAS ALUMINIUM CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, SALEM [2005 (4) TMI 233 - CESTAT, CHENNAI] has decided in favor of the appellants - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1600
Unjust enrichment - refund amount credited to consumer welfare fund instead of refunding the same to the respondent on the ground that it has not passed the test of unjust enrichment as envisaged under Section 12B of the Central Excise Act, 1944 - Held that:- The matter is remanded to the Tribunal for considering whether the respondent has passed on the burden of duty to the buyer, which term is not restricted to the first buyer alone but also extends to the ultimate customer - appeal allowed by way of remand.
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2017 (12) TMI 1597
Whether in the facts and circumstances of the case, the Tribunal was justified in dismissing the appeal on the ground that it was filed before the Commissioner (Appeals) beyond period of limitation as per provisions of the Act, namely under Section 35 of the Central Excise Act, 1944?
Held that:- The appellant discharged his burden of submitting appeals before the competent forum by placing on record necessary documents in support of his claim - The delay on the part of the office of the Assistant Commissioner of Central Exercise to forward the appeal paper book to the office of Commissioner of Central Excise (Appeals) cannot be attributed to the assessee so as to dismiss the appeal filed by the assessee as time-barred.
The matter is restored to Office of Commissioner (Appeals) of Central Excise & Customs, Aurangabad for decision afresh on merit - Appeal allowed.
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