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Central Excise - Case Laws
Showing 21 to 40 of 106 Records
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2020 (2) TMI 1193 - CESTAT NEW DELHI
CENVAT Credit - time limitation - credit denied to the appellant on the findings that the same has been availed after a period of six months from the date of issuance of the said invoices - N/N. 21/2014-CE(NT) dated 11.7.2014 - HELD THAT:- The issue is no more res integra, Tribunal in the cases of BHARAT ALUMINIUM COMPANY LIMITED VERSUS JOINT COMMISSIONER OF CENTRAL TAX, GOODS & SERVICE TAX [2019 (7) TMI 1084 - CESTAT NEW DELHI], M/S INDIAN POTASH LTD. VERSUS COMMISSIONER OF CENTRAL GST, MEERUT [2018 (10) TMI 1367 - CESTAT ALLAHABAD], and M/S KELTECH ENERGIES LTD VERSUS C.E,S. T-COMMISSIONER OF CENTRAL EXCISE & CENTRAL TAX, MANGALORE [2019 (11) TMI 8 - CESTAT BANGALORE] has held that the notification in question introducing the bar of limitation is applicable only prospectively and shall have no effect on the invoices issued prior to the said notification.
The impugned order of Commissioner (Appeals) is not sustainable - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1166 - MADRAS HIGH COURT
Refund of CENVAT credit - rejection on the ground of limitation under Section 11B of the Central Excise Act, 1944 - Appellant/Assessee has submitted that the limitation prescribed under Section 11B of the Act does not apply when instead of claiming the refund in cash, the Assessee merely claims the restoration of the CENVAT credit - HELD THAT:- The Division Bench of Allahabad High Court in M/S KRISHNAV ENGINEERING LTD. VERSUS CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL AND ANOTHER [2015 (12) TMI 234 - ALLAHABAD HIGH COURT] held in para 7 that where it is not a case of refund of duty but a case of reversal of an entry in the books relating to CENVAT credit, the limitation under Section 11B of the Act will not apply.
The learned Tribunal has erred in applying the limitation of the Section 11B of the Act in the present case, where the refund of duty was not claimed in cash as such, but only by the restoration of CENVAT credit by the Assessee - When a debit to the CENVAT credit account could be treated as a mode of payment of duty at the time of removal of goods, we fail to understand how the limitation under Section 11B of the Act could be denied when only restoration of such claim is only by way of reversal of that debit entry only upon the returning such CENVAT Invoices and the vendors not having availed any CENVAT credit, being the undisputed facts. The learned Revenue authorities could not deny the adjustment entry of restoration of CENVAT credit in the present case irrespective of limitation.
Rule 4(5)(a)(iii) of the Cenvat Credit Rules, 2004 is clear and it permits the Assessee to credit the CENVAT account book, if the goods are received back after 180 days. Therefore, in the face of a clear Rule permitting the said adjustment entry, merely because the Assessee made a claim in prescribed Form R under Rule 127, his claim of adjustment entry could not be refused by the authorities below.
The appeal filed by the Assessee deserves to be allowed and the same is accordingly allowed - questions of law are answered in favour of the Assessee and against the Revenue.
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2020 (2) TMI 1165 - MADRAS HIGH COURT
Manufacture of un-machined castings - it was claimed by the Writ petitioner/Assessee that, it has filed the classification lists as to explain what amount of Castings the Assessee Company produced, the same was denied by the Revenue and ultimately, the Assessing Authority passed an order against the Assessee which was appealed before the First Appellate Authority - HELD THAT:- Even though the learned counsel for the Assessee just and again reiterated that the Assessee has produced the classification list to establish that, it had manufactured unmachined castings, the fact remains that both the Appellate Authority as well as CESTAT concurrently held that no such classification list has been filed as claimed by the Assessee - In such view of the matter while sitting in the Writ jurisdiction under Article 226 of the Constitution of India, we cannot go over the said factual finding which has been concurrently found by both the Authorities. If at all the Assessee still feels to file classification list to establish its case for getting exemption of the duty, it is open to the Assessee to agitate the same in the manner known to law.
Petition dismissed - decided against petitioner.
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2020 (2) TMI 1164 - MADRAS HIGH COURT
Refund of Excise Duty - payment made under protest - applicability of time limitation u/s 11B of the Central Excise Act - HELD THAT:- The exemption in the present case was granted to the specific Assessee, in the specific facts and for specific quantity of the Coin Blanks manufactured and supplied by the Assessee. This was done for the purpose of maintaining the value of Coin Blanks itself - The payment of excise duty at the time of clearance of goods in anticipation of exemption right from the day one was therefore with the ardent hope of real and effective exemption and the refund of duty paid by the Assessee under compulsion for clearance of the goods.
Such a payment even though not labelled by the Assessee to have been paid 'under protest', could very well be treated as payment made by the Assessee 'under protest' only as per the provisions of Section 11B of the Act paving the way for the rightful refund of excise duty in consonance with Article 265 of Constitution of India which does not permit the State to collect the tax or duty without authority of law. The refund is for clearances of goods in question pertains to period from 1994. Already 26 years have passed due to one mistake in the decision taken by the Assessing Authority. The intention of Adhoc exemption itself was a glaring fact available before the Assessing Authority. Particularly the clarification issued on 30.06.1995 makes it clear that exemption was applicable for the entire quantity of goods supplied but ignoring this fact, the Asseesing Authority passed an order denying the refund partially, invoking the technical plea of limitation ignoring the exemption under the Second Proviso of Section 11B of the Act, whereby no limitation would apply when payment of Duty is treated as payment made 'under protest'.
The present Writ Petition filed by Assessee Steel Authority of India Ltd., deserves to be allowed - Petition allowed - decided in favor of petitioner.
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2020 (2) TMI 1163 - CESTAT MUMBAI
Benefit of reduced rate of duty - N/N. 10/2006-CE dated 01.03.2006 - Denial of benefit on the ground that paver blocks are different from building blocks - HELD THAT:- Going by the show-cause notice, it would appear that an artificial distinction is made by the respondent-department between hollow and solid concrete blocks and paver blocks by taking reference from Indian Standard Specifications and paver blocks were excluded from the purview of the notification on the ground that those were primarily used in the parking area of a building, road junctions, warehouse terminal, foot-path etc. and not used as concrete mason building blocks, for which the same is distinguishable from concrete blocks and this forms the basis of the duty demand.
A close scrutiny of Notification No. 10/2006-CE, would reveal that all goods covered under Chapter Heading 68 except Heading 6804, 6805, 6811, 6812, 6813 are covered in the said notification for concessional rate of duty @ 8% and not 16% - Therefore, even if it is accepted that appellant had classified the same under Chapter Heading 68101990 and puts the same in “others” category, still the same is covered under Notification No. 10/2006-CE for reduced rate of duty and comparison of the same with solid and hollow building blocks by the Commissioner (Appeals) in denying such concessional rate of duty appears to be irregular.
Extended period of limitation - HELD THAT:- The appellant company has placed it on record vide letter dated 01.04.2007 that on the advised of its Chartered Accountant, they have reduced payment of Excise duty from 16% to 8% as they are covered under the said notification. Therefore, invocation of extended period on the ground that said letter was replied back by the respondent-department with a negative note, without its reference been cited in the order of the Commissioner (Appeals), cannot be said to be in conformity to the statutory provisions for invocation of extended period also.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1115 - GUJARAT HIGH COURT
Principles of natural justice - SCN in call book for more than 13 years and without informing the petitioner, the SCN has been recalled - petitioner submitted that the SCN impugned in this petition is dated 19.03.2004 and thereafter no adjudication proceedings were conducted or concluded by the respondent no.2 authority within reasonable period and after a long delay of more than 13 years, the case was taken up for its adjudication by respondent no.2.
HELD THAT:- It would be appropriate to refer to the show-cause notice dated 19.03.2004 impugned in this petition. It is an admitted position that the impugned notice is not adjudicated till date. The show-cause notice itself shows that the petitioner Company was registered as 100% EOU with Development Commissioner, KFTZ Gandhidham and the same relates to predominantly the goods cleared by the petitioner in DTA between July 1999 to March 2000. The show-cause notice also indicates that 30 days time was given to the petitioner Company and the petitioner Company had replied to the same, however the respondent authorities did not adjudicate the show-cause notice.
The record clearly indicates that the authorities kept the show-cause notice in call book for more than 13 years and without informing the petitioner and as averred by the petitioner, which is not controverted by the respondent authorities and on the contrary on inquiry made by the petitioner, the petitioner was informed that the impugned show-cause notice has been recalled from the call book and was kept again for its adjudication which is against the principles of natural justice and beyond reasonable period.
The impugned notice dated 19.03.2004 deserves to be quashed and set aside and is hereby quashed and set aside - Petition allowed - decided in favor of petitioner.
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2020 (2) TMI 1114 - CESTAT CHENNAI
Process amounting to manufacture - Packing of duty paid machine dipped match splints purchased from mechanized match units - Benefit of N/N. 4/2006-CE dated 1.3.2006 (Sl. No. 72 of the Table) denied - Department was of the view that the appellants are not eligible for the benefit of Notification since the match splints purchased by them have been manufactured using the aid of power - Board Circular No. 1/93-CX-4 dated 2.121993 - difference of opinion - matter referred to Third member.
HELD THAT:- The scope and cause of reference to the Third Member is limited to the difference of opinion between the Members and therefore, as a Third Member, I cannot go beyond the reference to entertain the above application. However, I deem it proper to place the above application before the regular Bench for any order on the application.
The Member (Judicial) has held that the appellants are eligible for the benefit of the Notification (supra) and has set aside the demand whereas, the Member (Technical) has held that the benefit of the exemption Notification (supra) is not available to the assessees and has accordingly confirmed the demand. The only question formulated by the Members on the Difference of Opinion is "whether the appellants are eligible for the exemption Notification No. 04/2006-C.E, dated 01,03.2006 as held by Member (Judicial) or they are not eligible for the exemption as held by Member (Technical)."
In Union of India Vs. Elphinstone Spinning & Weaving Co. Ltd., [ 2001 (1) TMI 966 - SUPREME COURT ], the Hon'ble Apex Court formulated what it termed the cardinal principle of construction in the following words: "a statute is a command of the Legislature. The interpreter must, therefore, in interpreting and construing the statute, identify the intention of the Legislature; that in identifying the intention of the Legislature by the process of constructing, the Court will have to adopt both literal and purposive approaches. This would mean that the true or legal meaning of an enactment is derived by construing the meanings of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief of its remedy to which the enactment is directed.
In State of Uttar Pradesh Vs. Vijay Anand [ 1962 (3) TMI 7 - SUPREME COURT ], the Hon'ble Apex Court inter alia when the language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the Act.
When the meaning is plain and unambiguous, no process of construing or interpreting a statute can proceed beyond the literal or textual interpretation except if absurdity results as a consequence. In my considered opinion, the same principles apply to construing - Although courts have historically taken the assistance of common law principles in interpreting statutory law, there is very little common about the tax laws. There are a sui generis set of principles that apply to the interpretation of taxing statutes. It is the we]/ settled proposition that the subject is not to be taxed without clear words for that purpose; and every Act of Parliament must be read according to the natural construction of its words.
Member (Judicial) rightly points out that the notification does not require that the processes listed therein are required to be carried out by a single/same manufacturer. However, for the reasons I have given above, the converse too is not true. That is, the absence of such a requirement does not automatically entitle the assessee to the exemption - The very heading of the Notification, i.e., GENERAL EXEMPTION NO,47 reads thus: "Exemption and effective rate of duty for SPECIFIED GOODS of chapters 25 to 49" and it applies. to exempt excisable goods of the description specified in column (3) of the table. So, the conditions upon which the exemption depends is relatable not to the assessee, not the manufacture and not even the manufacturer, but only to the goods specified.
It is the case of the appellants that they have procured dipped match splints from other manufacturers who have removed such goods on payment of that this would not make any difference since the entitlement to exemption is to be determined separately in each assessee's case. The fact that duty has been paid on some intermediate/ semi-finished goods not themselves entitled to exemption is in no manner relevant to whether exemption is to be granted at a subsequent stage to the finished goods. In any event, the cascading effect is effectively mitigated by CENVAT credit. The exemption notification must be applied only to the goods .it seeks to cover.
The appellants are not eligible for the benefit of exemption notification No.4 ibid and accordingly, I concur with the conclusions drawn by the Member (Technical) - Registry is directed to place the matter before the Division Bench for recording majority/Final Orders accordingly.
Majority order recorded - Appeals dismissed.
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2020 (2) TMI 1113 - CESTAT MUMBAI
Restoration of appeal - non-compliance of the requirement of Section 35F of the Central Excise Act, 1944 - HELD THAT:- It is an admitted fact on record that the applicants did not comply with the stay orders dated 22-4-2013 and 24-6-2013 passed by this Tribunal and for that purpose, the appeals of the applicants were dismissed by the Tribunal for such non-compliance. We find from the available records that the above referred stay orders were compiled by the applicants on 8-3-2018 and 23-4-2018, which are more than four and a half years from the date of passing of the said stay orders. We also find that in the stay applications filed before the Tribunal, the applicants had not pleaded for the financial difficulties faced by them. Thus, for non-compliance of the stay orders, the Tribunal has rightly dismissed the appeals filed by the appellants.
The applicants are directed to deposit the entire adjudged dues confirmed in the original orders within a period of 4 weeks from the date of receipt of this order and to report compliance on 10-7-2019. The appeal shall be restored back to file subject to receipt of the compliance report by the next date of hearing.
Registry is directed to list the matter on 12-7-2019 for further orders.
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2020 (2) TMI 1060 - MADRAS HIGH COURT
Levy of interest u/r 96ZP(3) of Central Excise Rules, 1944 - HELD THAT:- The present writ petition deserves to be allowed on the basis of the aforesaid judgment of the Honourable Supreme Court in Shree Bhagwati Steel Rolling Mills -Vs- Commissioner of Central Excise [2015 (11) TMI 1172 - SUPREME COURT], as the Rule levying such interest itself has been struck down by the Honourable Supreme Court for the reason that there is no substantive provision for levy of such interest in the main charging provision under Section 3A of the Act.
The impugned communication / order of the Superintendent of Central Excise dated 04.05.2005 demanding interest at the rate of 18% under Rule 96ZP(3) of the Central Excise Rules, 1944 is hereby quashed - Petition allowed - decided in favor of petitioner.
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2020 (2) TMI 1056 - CESTAT NEW DELHI
Valuation - inclusion of VAT in assessable value - VAT amount, instead of paying in cash, the same is adjusted against the subsidy granted to them - when there is no actual payment of VAT, whether, the adjusted amount cannot be considered as payment of VAT and the same is not excludible from the transaction value? - HELD THAT:- The issue involved herein is not res integra as the identical issue has been considered by this Tribunal in the case of SHREE CEMENT LTD. SHREE JAIPUR CEMENT LTD. VERSUS CCE, ALWAR [2018 (1) TMI 915 - CESTAT NEW DELHI] where it was held that even though the VAT payment was adjusted against the subsidy received by the appellant, there is VAT payment and the same is excludible from the assessable value.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1055 - CESTAT NEW DELHI
Valuation - related party transaction - sister concerns - SCN was issued to the appellant wherein it was contended that the appellant is a private limited company and SSI is a partnership firm some of the Directors of the appellant company or their relatives are either partners of SSI or relatives of such partners - whether the appellant’s transaction value is acceptable in a case when goods were sold to partnership firm wherein one of the partner is Director in the appellant’s company?
HELD THAT:- The entire case was made out only on the limited facts that in the buyer partnership firm one of the partner is Director in the appellant’s company, therefore, both the concern are interconnected undertaking. Except this so called relationship there is no other allegation of mutual interest between both the concern, therefore, the matter is examined in terms of the statutory provision as provided under Section 4 (3) (b) and Rule 8/9 of Central Excise Valuation Rules, 2000.
From Rule 9, it can be seen that though in Section 4 (3) (b) (i) interconnected undertaking are deemed to be related, however, in Rule 9 only the relationship mentioned under sub-clauses (ii), (iii) or (iv) of clause (b) of sub-Section (3) of Section 4 are considered for the purpose of related person, therefore, even though the seller and buyer are interconnected undertaking, if not related person in terms of sub-clauses (ii), (iii) or (iv) of clause (b) sub-Section (3) of Section 4, the same cannot be qualify as related person. Therefore, merely for the reasons that the partners of the buyer partnership firm are Director or relative of Director, the partnership firm and the appellant which is a private limited company cannot become related person for the purpose of Section 4 (3) (b).
In an identical facts where the supplier is a private limited company and buyer is a partnership firm in the case of M/s Surabh Tubes Pvt. Ltd. versus Commissioner of Central Excise, Indore [ 1770009 ], a coordinate bench of this Tribunal having identical facts of the present case the supplies made by a private limited company to a partnership firm it was held that both are not related. Accordingly, the appeal was allowed - In another case of RELIANCE INDUSTRIAL PRODUCTS VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE-II [2011 (3) TMI 704 - CESTAT, MUMBAI], the Tribunal has held that a partnership firm and a public limited company having Director who are also partner in the partnership firm, the partnership firm and public limited company cannot be held related person.
The appellant and the buyer partnership firm cannot be treated as related person. The Adjudicating Authority mainly contended that the partnership of the buyer partnership firm are either Director in the appellant’s company or relative of Director of the appellant company. The relationship has to be seen between a partnership firm and a private limited company both are artificial juristic person. Only on the basis of natural relationship between the partner of a partnership firm and Director of private limited company, it cannot be a criteria to decide the relationship between a partnership firm and private limited company.
The appellant and M/s Sunshine Steel Industries, buyer in the present case, do not fall under the term “related person’ in terms of Section 4 (3) (b) of Central Excise Act, 1944. Therefore, the transaction value on which the goods were sold by the appellant is a correct and legal, hence a deemed value in terms of Rule 8 of Central Excise Valuation Rules, 2000 is not applicable - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1054 - CESTAT CHENNAI
Refund of Central Excise Duty - allegation that the appellants were indulging in evasion of Central Excise Duty - rejection of refund on the ground of time limitation - HELD THAT:- The Delhi Bench of the Tribunal in the case of MAHANAGAR TELEPHONE NIGAM LTD. VERSUS C.S.T. - DELHI [2016 (12) TMI 1276 - CESTAT NEW DELHI] was seized of a more or less similar issue and was dealing with refund under Section 11B of the Central Excise Act, 1944, as in the case on hand. The Delhi Bench after considering the rival contentions has held that the refund claim finally stands settled only with the order of the apex court. Hence the date of the judgment of the Hon. Supreme Court is to be considered for determining the relevant date in this case i.e. 4.7.2012. The refund claim stands filed on 21.8.2012, which is within a period of 1 year as permitted under Section 11(B), thus, refund claim is filed in time.
From the discussions of the Delhi Bench, which has found that the claim for refund, which was made after the dismissal of SLP, was correct and the same applies to the case on hand also, since upon the Revenue preferring an appeal against the Order-in-Appeal (with the assessee also filing its cross-objection), the matter was sub judice before the Tribunal and naturally, when the matter was lis pendens, no such application for refund could be filed.
The appellant’s claim for refund is not hit by limitation - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1025 - GUJARAT HIGH COURT
Classification of goods - manufacture of agrochemical products - Plant Growth Regulator and falling under Chapter heading 3808 or not - As per the circulars issued by the CBEC, the product in question was required to be “compound” and not “mixture”. - CESTAT referred the matter to the Larger Bench - Whether the decision rendered by the Bench in Northern Mineral (supra) could be said to be so conclusive a decision as to leave no room for further examination of this Bench?
HELD THAT:- This stage that the product in question before the Delhi Bench in case of NORTHERN MINERALS PVT. LIMITED VERSUS COLLECTOR OF C. EX., DELHI [1996 (7) TMI 387 - CEGAT, NEW DELHI] “Dhanzyme” and therefore, the majority discussion in the case of Northern Mineral (supra) was based upon the ingredients characteristics and constitution of the said product. Whereas in the instant case, the product is Siapton 10L. Thus, both the products are different. The Delhi Bench in case of Northern Mineral (supra) has recorded submission of the counsel for the appellant therein.
The Delhi Bench in case of Northern Mineral did refer to the dictionary meaning and various discussion on “plant, growth, regulator and plant, growth promoter” to cullout fine distinction between the two. But the research on this aspect incorporated in para 7.3 was bearing in mind the product “Dhanzyme” and its ingredients, applicability, methodology of its application and usage. In other words, it can well be said that the discussion and research was producentic viz. “Dhanzyme”.
It is required to be noted that the decision of the Court and the tribunals are to be read not as textbook, but required to be read and applied in light of the facts prevalent thereafter. Bearing the aforesaid sentence of the tribunal occurring in the paragraph, which this Bench has found to be uncalled for, unwarranted and not appropriate. The discussion in respect of the product in question based upon the prima facie opinion of the tribunal requiring the tribunal to refer the matter to Larger Bench cannot be said to be so prejudicial to the petitioner to call for any interference - The Court hasten to add here that the Court is also of the view that the learned counsel for the respondent is not wholly unjustified in pressing into service the submission and pleadings of the respondents' affidavit indicating that in such a scenario the Court should be slow in interfering with such interim order.
The Court had to examine the judgment of the Delhi Bench of CESTAT in NORTHERN MINERALS PVT. LIMITED. The plain and simple reading thereof would indicate that there was a discussion, which can be said to be a product specific or producentic viz. “Dhanzyme” and supposing there was a case in respect of “Dhanzyme” or a product having all the similar ingredients that a “Dhanzyme” and also applicability perhaps there would have been no action or permissibility in the tribunal to make any reference as it would not be permissible at all. The Court has already deprecated the tribunal's reference to the Apex Court in highlighted sentence, but that in itself would not render entire order of the tribunal impugned in this petition vulnerable as it was a duty cast upon the petitioner to establish imminently that the product in question in this petition being Siapton 10L was almost similar to Dhanzyme in its ingredients, applicability and construction so as to make the decision of Northern Mineral binding upon the tribunal for preventing it from referring it to Larger Bench.
The Court is of the view that the order impugned is not in any manner prejudicial to the petitioner and is only an interim order and making reference to the Larger Bench and pursuant thereof, the Larger Bench was constituted and met once, but in view of the pendency of this petition, deferred the hearing. Therefore, without any further elaboration, suffice it to say that the order impugned does not deserve to be interfered with in any manner and the discussion touching upon the merits made in this matter is purely for examining the challenge to the order impugned and the same shall have no bearing either for consideration by the Larger Bench or Tribunal Bench, where the matter is argued on merits - Petition disposed off.
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2020 (2) TMI 1024 - GUJARAT HIGH COURT
Maintainability of appeal - Whether the orders of the Appellate Tribunal confirming recovery of duty on the basis of Annual Production Capacity (APC) and not on the basis of actual production are correct and legal in the facts of this case? - HELD THAT:- The appeal is admitted on substantial question of law.
The facts as emerging on record reveal that the question on which the appeal has been admitted does not arise either from the order passed by the Commissioner, Central Excise and Customs, Ahmedabad-II or the CESTAT as neither the Commissioner nor the CESTAT has considered the issue of recovery of duty on the basis of actual production.
The question framed as a substantial question of law arising from the impugned order passed by the CESTAT is not answered - appeal dismissed.
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2020 (2) TMI 1015 - CESTAT NEW DELHI
Clandestine removal - compliance of Rule 9D of Central Excise Act, 1944 - SSI Exemption - clubbing of the clearances affected by the manufacturing units of the appellants, namely, M/s Ganpati Allied Works (Noticee No. 2), M/s Ganpati Steels (Noticee No. 1) and other two units - HELD THAT:- There is evidence regarding pervasive control of these units by Shri Ashish Gupta only. We also find that the record regarding payment of the various units is interlinked with each other. It is on record that there had been supply by the one unit, however, the payments have been received by the other units, although subsequently, there is instances of transfer of all this amount to the respondent units.
Transportation of raw material, finished goods and trading material - HELD THAT:- There is intermixing of business activities of the units and same is being controlled by Shri Ashish Gupta, on behalf of other appellant as well. Regarding the evidences which was collected from the computer of the appellants it is on record that the same was being used by various persons and was not in the control of any individual person. No certificate has required under 36 B of Excise Act is available on record, and therefore, it is concluded that same has not been obtained by the Department during the course of investigation. Therefore, reliance cannot be placed on data derived from this computer/ hard disk. But, Shri Ashish Gupta as categorically accepted these clearances in his statement and also paid Central Excise duty voluntarily.
It is evident that the Department has not only relied merely upon the data derived from the computer printout but also obtained from independent sources, which has been accepted by Shri Ashish Gupta. In this regard we are also relying on some of the observations made in the adjudication order by the Adjudicating Authority regarding the huge variation in the consumption of electricity furnished by the manufacturing noticee. This variation in the electricity consumption proves the abnormal production of finished goods as recorded in the private records. This abnormal consumption of electricity would lead to the fact that there had been manufacturing of finished goods without bringing those on the recorded production. This aspect further corroborated by purchase of unaccounted coal from M/s Laxmi Agency/ Jaya Agency. The benefit under SSI exemption is not available to the units where there is mutuality of interest and pervasive control of one unit by the other is established which is established in this case.
It is also observed that there had been unaccountal of clearance of winding wire, roll products without payment of Central Excise duty, which were found to be maintained in private records. All these evidences have been accepted by Shri Ashish Gupta in his statement before the Investigating Officer. Whatever has been accepted need not be proved.
Appeal dismissed.
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2020 (2) TMI 1014 - CESTAT NEW DELHI
CENVAT Credit - common input services used for providing taxable as well as non-taxable outputs - leftover of packing material - exempt goods or not - Rule 6 (3)(1) of CCR 2004 - whether the leftover of the packing material which was used by the Appellant to pack the Tires and Tubes manufactured by them is such exempted/non-excisable goods due to which Rule 6 CCR, 2004 is applicable?
HELD THAT:- Apparently and admittedly, the goods as have been objected by the department are not the manufactured goods. These are merely the inputs that too in the form of the material used by the Appellant to pack their final product. This particular observation is sufficient to hold that the impugned goods i.e. plastic scrap, used empty jumbo bags, sweeping garbage, MS Iron, empty drums, MS scrap, etc. do not fall in the category of goods manufactured by the Appellant. Irrespective the leftover of the packing material is being cleared by the Appellant against the consideration, these goods is not at all sufficient to hold the same to be called as the manufactured good of the Appellant.
In the case of UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT] Hon'ble Apex Court while explaining the meaning of manufacture as contained in Section 2F of the Central Excise Act, 1944 has held that any waste emerging compulsorily during the procedure of manufacture cannot be called as the manufactured products. As such the Rule 6, CCR is not applicable - In view of the prior Circular of the department bearing No. 721/37/2003-CX dated 06.06.2003, it can be opined that explanation I to Rule 6 CCR, 2004 has been added to circumvent the outcome of the decision of Hon'ble Apex Court in UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT]. Accordingly, the confirmation of demand of ₹ 5,72,598/- on the left over/scrap of the input used by the Appellant, since Rule 6 is not applicable, the demand is not sustainable - demand set aside.
Demand of ₹ 3722/- with respect to common input services used for taxable as well as non-taxable services - HELD THAT:- Since there is no denial for the Services as that of advertising services, legal services, director's fee, business auxiliary, etc. to be the common input services used by the Appellant in or in relation to the manufacture of their final product. There are no infirmity when the adjudicating authority below has confirmed the demand under Rule 6 CCR, 2004 to that extent the order under challenge is liable to be upheld - Demand upheld.
Appeal allowed in part.
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2020 (2) TMI 1010 - CESTAT NEW DELHI
Service of notice - raw-material was received in the factory premises of M/s. Shree Om Wires Pvt. Ltd. without proper invoice/ documents, which were found issued in the name of entity other than that of the said unit - Confiscation - redemption fine - penalty - HELD THAT:- It stands clear on record that penalty against the present appellant stands already waived. Hence, there seems no reason to still be aggrieved about imposition of penalty. It is further observed that in para 7 of the Order-in Appeal, Commissioner (Appeals) has already formed an opinion that the job worked material i.e. 8839 Kgs. as per the job challan could not have been loaded in the said vehicles. Otherwise also, there was no evidence regarding the readiness of job worked material to be transported to the principal manufacturer. Hence it cannot be said that the job worked material was indeed ready to be dispatched. It is on this basis that the Order-in-Original was modified.
The appellant was under bonafide understanding about no duty liability on his part on amount of subsidy by including it in the transaction value. Thus, even the order of confiscating the Truck, however, permitting redemption thereof is also not sustainable.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1008 - CESTAT NEW DELHI
Condonation of delay in filing appeal - Clandestine Removal - MS ingots - time limitation - limitations to file the appeal before Commissioner Appeals and the mandatory payment @ of 7.5% of the demand confirmed was also made by the Appellant that too within 60 days of receiving the order in original - HELD THAT:- Unless and until there is a statutory mandate of extending the prescribed period to a particular period/number of days that the Section 5 of Limitation Act will be applicable. Section 29 of Limitation Act reiterate the same position that even for special laws in absence of specific provision for extending the prescribed time but for a particular limit that Section 4 to 24 of the limitations Act only will be applicable. However, Section 35 of Special Act i.e. Central Excise Act limits the power of Commissioner Appeals to condone the delay in filing appeal, only to a period of 30 days after the period of 60 days from the date of receipt of the order to be challenged as is filed before him. The said observation is sufficient to hold that in case of Section 35 of Central Excise Act, the power of Commissioner (Appeals) to condone he delay in fling appeals is restricted to a particular period Section 5 & 29 of Limitations Act will not be applicable.
Learned Apex Court in the case of Singh Enterprises [2007 (12) TMI 11 - SUPREME COURT] has held that Commissioner of Central Excise Appeals as also the Tribunal being the creatures of statute are vested with the jurisdiction to condone the delay beyond the permissible period provided under the statute. However, where the period upto which the prayer for condonation can be accepted is statutorily provided, the logic of Section 5 of Indian Lamination Act shall not be available for the condonation of delay.
Commissioner (Appeals) had no option but to dismiss the appeal being time barred as the delay was more than 30 days. But keeping in view, the power of this Tribunal and that the delay is attributable to the Counsel of the appellant that the said delay is hereby condoned - Since the decision of Commissioner (Appeals) is not on the merits, the matter is remanded back to Commissioner (Appeals) to take decision on the merits of the impugned appeal - Appeal allowed by way of remand.
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2020 (2) TMI 1004 - CESTAT NEW DELHI
CENVAT Credit - participation of officers in workshop for Corporate Social Responsibility - Security in the headquarters building & residential colony and other activities like tree trimming/cutting, fabrication, repair & maintenance of residential quarters, cleaning services in the project office, dismantling of old structure and others - Hiring of bus for transportation of the staff between office and residence - extended period of limitation - HELD THAT:- The Commissioner (Appeals) in paragraph 12 only dealt with reimbursement of travelling expenses to Chartered Accountants and held that the Appellant is entitled to Cenvat Credit for reimbursement of travelling expenses to them. It has, therefore, to be examined whether the Appellant would be entitled to avail credit. The expenditure on Corporate Social Responsibility is a statutory requirement under the Companies Act and is clearly in relation to the activity of manufacture as was also observed by the Joint Commissioner in the adjudication order. Such workshops do help the officers in better management of the business activities of the Appellant and, in fact, would be included in the “coaching and training‟ mentioned in the inclusive part of the definition of “input service‟ - the appellant is clearly entitled to avail Cenvat Credit on the expenditure incurred in providing this service.
Security in the headquarters building & residential colony and other activities like tree trimming/cutting, fabrication, repair & maintenance of residential quarters, cleaning services in the project office, dismantling of old structure and others - HELD THAT:- From a bare perusal of the order of the Commissioner (Appeals), it does appear that providing security in the office area is connected with the business activity of the Appellant, but providing security to the residential colony is not in relation to the business activity of the Appellant. Credit has, however, been denied since bifurcation of the amount spent for security for office and residential colony has not been provided. At this stage, it needs to be noted that there are 338 personnel provided by the security agency, out of which only 4 security guards are deployed at the four residential colonies and 334 security staff are for the offices area.
It is not the case of the Department that the employees/workers are living in private residential houses where security has been provided by the factory. It is an admitted fact that the residential colony is provided by the factory and it is situated within the premises owned by the Appellant and close to the mining area and offices. The residential colony has been built by the Appellant for the benefit of its employees/workers and has been maintained by the Appellant. It is necessary for the Appellant to maintain the residential colony close to the mines area for better business results. Therefore, the services, so provided, do have a nexus with the business undertaken by the Appellant - The Joint Commissioner had examined all these aspects and had arrived at a conclusion that such services had a nexus with the business of the Appellant, but the Commissioner (Appeals) without giving any reason, much less a cogent reason, has made an observation that providing such services has no nexus with the business of the Appellant.
Hiring of bus for transportation of the staff between office and residence - HELD THAT:- In the present case, it is not in dispute that the bus is being utilized for the purpose of transporting the employees from the residence to the factory and from factory to the residence. This is in connection with the business activity of the Appellant and, therefore, there is no good reason to deny Cenvat Credit on such input service in view of the aforesaid decisions relied upon by learned Chartered Accountant for the Appellant - the demand made under this head cannot, therefore, be sustained and is, accordingly, set aside.
It is not necessary to examine the contention raised by the Appellant that the extended period of limitation in regard to the first show cause notice could not have been invoked - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 963 - CESTAT HYDERABAD
CENVAT Credit - input - steel items - cement - input services - sole reason for denial of Cenvat credit is the decision of the Larger Bench of this Tribunal in the case of VANDANA GLOBAL LTD. VERSUS CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - HELD THAT:- Admittedly, the said decision has been turned down by the Hon’ble Chattisgarh High Court in M/S VANDANA GLOBAL LIMITED AND OTHERS VERSUS COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, CENTRAL EXCISE [2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT] - therefore, the decision of the Larger Bench of this Tribunal holds no force and hence, Cenvat credit cannot be denied based on the decision of Larger Bench of this Tribunal in the case of Vandana Global Ltd - Admittedly, it is not disputed that the cement and steel items have been used by the appellant for setting up new factory or capital goods - credit allowed.
CENVAT Credit- input services - services received by the appellant at the factory for setting up a new factory - sole denial of Cenvat credit to the appellant is that the appellant has received services in their factory and invoices are in the name of their Nandyal office - HELD THAT:- It is not the case of the revenue that the appellant has not used the services in question in course of business of manufacturing of goods. Therefore, in terms of Rule 2(l) of CCR, 2004 the appellant is entitled to avail Cenvat credit as held by the Hon’ble Bombay High Court in the case of CCE, NAGPUR VERSUS ULTRATECH CEMENT LTD., [2010 (10) TMI 13 - BOMBAY HIGH COURT] - also the invoices in question for availment of input service are having all the particulars in terms of Rule 9(2) of CCR, 200, but having certain corrections which cannot be reason to deny Cenvat credit - credit allowed.
Appeal allowed - decided in favor of appellant.
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