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Central Excise - Case Laws
Showing 41 to 60 of 106 Records
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2020 (2) TMI 905 - MADHYA PRADESH HIGH COURT
Application for withdrawal of application - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - appellant submitted that under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, the duty imposed upon the appellant could be compounded - HELD THAT:- The present appeal is dismissed as withdrawn with liberty as prayed for. It shall be open for the appellant to file an appropriate application before the competent authority under the aforesaid scheme for compounding the tax imposed, which shall be considered and decided in accordance with law by passing a reasoned and speaking order.
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2020 (2) TMI 904 - CESTAT CHANDIGARH
Levy of personal penalty on the Manager Director of the company - Quantum of penalty u/r 26 of CER - short payment of duty - clearance of Bone Meat Meal in Domestic Tariff Area on payment of duty - benefit of N/N. 13/98-CE dated 02.06.1998 - HELD THAT:- When in his appeal and throughout the proceedings appellant has not disputed that the company was clearing the goods after determining the classification of goods and payment of duty as determined by them in after availing the benefit of exemption under Notification No. 13/98-CE, the submission made by the learned Consultant to the effect that lower authorities have not followed the settled procedure of assessment i.e. determining classification etc. cannot be detrimental to the proceedings. At the relevant time the unit namely M/s P M L Industries was working under the scheme of self assessment as introduced in the year 1997 and paying the duty after determining the classification and value of the goods. Hence if the Revenue Authorities have in the present proceedings not determined the classification separately it can be concluded that department do not dispute the classification etc.
There cannot be any dispute in this appeal that duty has been short paid in respect of the clearances made by M/s. P.M.L industries. Also the liability to confiscation of the goods which have been cleared on short payment of duty can be disputed.
It is settled principle of law that when the two authorities have sitting separately arrived at the same finding of fact the same should normally not be disturbed till the time it can be shown to be perverse. Nothing has been produced to show that findings recorded by both the lower authorities in respect of the present appellant is perverse, hence we are not inclined to disturb the same - there are no merits in submissions that penalty under Rule 26 could not have been imposed upon the appellant, however, the penalty equivalent to the duty evaded on by P.M.L industries on the appellant is too harsh and should be reduced.
Holding that penalty under Rule 26 is imposable on appellant, the same is reduced to ₹ 10,00,000/- - appeal allowed in part.
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2020 (2) TMI 903 - CESTAT MUMBAI
CENVAT Credit - input services - GTA service - entitlement of credit even after 1.4.2008 on FOR sales i.e. delivery upto the factory gate of the customers - place of removal - period from October, 2007 to October, 2010 - CBEC Circular No.97/8/2007-ST, dated 23.8.2007 - HELD THAT:- Prior to the amendment of 2008, in the definition of ‘input service’ as per Rule 2(l) ibid, the words used were ‘outward transportation from the place of removal’ but vide notification No.10/2008-CE (NT), dated 1.3.2008 the aforesaid definition of ‘input service’ was amended by substituting the same with the words, ‘outward transportation upto the place of removal’. Although the pre-amended definition of ‘input service’ as contained in Rule 2(l) ibid uses the expression from the place of removal, however, after the amended w.e.f. 1.3.2008 the word ‘from’ is replaced by the word ‘upto’ and from the amended definition it the clear that only upto the place of removal the service is treated as input service and not beyond that - The benefit which was admissible even beyond the place of removal now gets terminated at the place of removal itself.
Extended period if limitation - HELD THAT:- The issue was interpretation of statutory provision regarding availment of input service tax credit for GTA services on outward supply in cases of FOR supplies and such issues of interpretation cannot be a ground for invoking extended period - in the light of the fact that the appellant is a Government of India Enterprise, there is no suppression of facts nor any willful default with intention to evade duty or to avail excess Cenvat credit. Accordingly, the extended period was not invocable and the demand for the period, which as per learned counsel is from April, 2008 to May, 2010, is barred by limitation - So far as the period June, 2010 to October, 2010 is concerned, the same being within normal period, the Appellants are liable for the same and for the demand for this period, the show cause notice is upheld.
Penalty - HELD THAT:- The appellants did not have any malafide intention, therefore they are not liable for any penalty also.
For the purpose of re-calculating the demand for the normal period, the matter is remanded to the Adjudicating Authority - appeal allowed by way of remand.
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2020 (2) TMI 902 - CESTAT MUMBAI
Cash refund of CENVAT credit - CENVAT credit on inputs cleared as such by the supplier - rejection on the ground that the credit was availed by the EOU unit on the goods received from the DTA unit, by reversing/payment of duty through CENVAT Credit which was not admissible to the said DTA unit on inputs cleared as such - Rule 5 of CCR - HELD THAT:- On plain reading of the Rule 11(3), it is clear that the manufacturer of a final product shall be required to pay an amount equivalent to the CENVAT Credit taken by him in respect of the inputs received for use in the manufacture of final product and lying in stock or is contained in the final product if he opts for exemption on the final product, whereas on the other hand, Rule 3(5) of CENVAT Credit Rules, 2004 allows the manufacturer to clear the inputs ‘as such’ from the factory or premises of the provider of the output service, on payment of an amount equivalent to the credit availed in respect of such inputs and the removal shall be made in accordance with Rule 9 of CENVAT Credit Rules, 2004 i.e. against proper invoice - Both the said rules operate in different spheres and do not overlap.
In the present case, the Appellants received the inputs when the final product was dutiable, on its exemption, chose to clear the inputs lying in stock ‘as such’ following the procedure laid down in Rule 3(5) of CENVAT Credit Rules, 2004 without its use in the manufacture of exempted final product - If the argument of the Revenue is accepted that the credit attributable to the inputs lying in stock would lapse, then the Appellants would be required to clear the inputs as such either without payment of duty or reversal of credit again on the same quantity of inputs on its clearance as such which would lead to an absurd situation and it cannot be intended by the legislature. Therefore, clearance of the inputs lying in stock as on 01.03.2007, after reversal of the credit following the procedure laid down under Rule 3(5) of CENVAT Credit Rules, 2004 is in harmony with Rule 11(3) of CENVAT Credit Rules, 2004 and not in conflict - Hence, reversal of credit on the inputs cleared as such, is in accordance with the law.
Whether 100% EOU unit is entitled to refund the accumulated CENVAT Credit of ₹ 78,97,716/- under Rule 5 of CENVAT Credit Rules, 2004 on export of the finished goods? - HELD THAT:- Since the DTA unit has correctly reversed the credit on the inputs cleared as such to their 100% EOU unit, who in turn, availed the credit and utilised the same in the manufacture of exported goods, cash refund of accumulated CENVAT Credit of ₹ 78,97,716/- under Rule 5 of CENVAT Credit Rules, 2004 cannot be held to be inadmissible to the EOU unit.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 863 - SC ORDER
Permission for withdrawal of appeal - Monetary limit for filing appeal - HELD THAT:- These appeals involve a question of the financial implication which is well below the fixed limit prescribed by the relevant notification dated 22.08.2019. The tax effect in the Appeals is ₹ 22 Lakhs.
Appeals are dismissed as withdrawn.
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2020 (2) TMI 811 - MADRAS HIGH COURT
Validity of show cause notice (SCN) issued - Recall of Order - erroneous refund granted - invocation of Section 11A - Whether section 35E has overriding effect over section 11A - power of revision by the higher authority - HELD THAT:- There are no merit in the contention raised by the learned counsel for the Assessee Companies that without the intervention of the higher Authorities under Section 35E of the Act, the Adjudicating Authority himself could not issue the impugned show cause notice under Section 11A of the Act.
On a bare reading of the Scheme of Central Excise Act, 1944 in Chapter II dealing with levy of collection of Duty comprising from Section 3 to 12, we find that the said Chapter contains the provisions relating to charging provisions, Valuation, Assessment and Penalty etc. Section 11A in the said Chapter II pertaining to levy in collection of Duty provides for recovery of Duties not levied or not paid or short levied or short paid by the Assessees or or erroneously refunded to be recalled by the Adjudicating Authority and after issuance of appropriate notice, the proceedings under Section 11A can be decided by the Authority concerned.
The suo motu power of the Principal Commissioner of Central Excise or Committee of Chief Commissioners, with effect from the amended provisions of Finance Act, 2005 dated 13.5.2005 deals with the revisional powers conferred upon such Committee to call upon and examine the record of any proceedings in which a lower Authority, as an Adjudicating Authority, has passed any decision or order under the said Act for the purpose of satisfying the said higher Authority as to the legality or propriety of such decision or order and such higher Authority, by an appropriate order, direct the lower Authority to pass appropriate orders in accordance with the directions given in such orders passed under Section 35E of the Act.
If the exercise of jurisdiction under Section 11A of the Act was to be hooked or hinged upon the provisions of Section 35E of the Act, that would frustrate the very provisions of Section 11A of the Act, in our opinion. Section 11A of the Act does not refer or make it subject to any other provisions of Chapter VIA of the Act providing for Appeal or revisional powers to the higher Authority under the said Act. Therefore, to make an exercise of power under Section 11A of the Act, dependent upon the outcome of an order of higher Authority will render the provisions nugatory. Therefore, to contend on that basis that the impugned Show Cause Notice could not have been issued by the Authority and they should be held without jurisdiction is a preposterous contention and the same cannot be accepted.
The learned Single Judge was perfectly justified in relegating the Petitioner/ Assessee before the Authority concerned, who issued the impugned show cause notices where the Assessee had to avail the opportunity to show cause before the Authority concerned that the refund in question was not erroneously made earlier so as to justify a recall or refund back to the Department under Section 11A of the Act - Without showing cause before the Authority concerned himself and directly approaching the Writ Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India, in our opinion, is nothing, but an abuse of process of law. The Constitutional Courts, in the absence of proper factual foundation and findings, should not be flooded with premature Writ Petitions and such practice on the part of the Assessees deserves to be strongly put down with the iron hands of justice.
Appeal dismissed.
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2020 (2) TMI 810 - CESTAT BANGALORE
Classification of goods - Maize Starch Powder (MSP, for short) (Thin boiled starch), MSP (very thin boiled starch), MSP Regular (Pharma), MSP Regular (Textiles) and MSP Regular (Food) - whether classified under Tariff heading No.35051090 of the Central Excise Tariff, 1985 or under Chapter Sub- Heading No.11081200 of the First Schedule to the Central Excise Tariff Act, 1985? - Benefit of N/N. 3/2007-C.E. dated 01/03/2007 - period from December-2007 to May-2008.
HELD THAT:- The issue is squarely covered by a precedent decision of the Tribunal in the appellant’s own case RIDDHI SIDDHI GLUCO BIOLS LTD. VERSUS COMMR. OF C. EX., BELGAUM [2011 (4) TMI 970 - CESTAT, BANGALORE] wherein it was held that the impugned order relying upon the report of the Departmental Chemical Examiner who had given his personal opinion without any empirical tests or study of manufacturing process cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 809 - CESTAT ALLAHABAD
Clandestine removal - shortage of stock - sugar - HELD THAT:- The appellant had taken a categorical stand that the stock of sugar got damaged due to seepage from the roof which plea stands rejected by the Lower Authorities as an afterthought.
Apart from the shortages, there is no evidence of removal of the goods in a clandestine manner. The clandestine allegations are required to be established by the Revenue by production of sufficient evidences. The discrepancies in the stock cannot be taken as a ground for upholding the allegations of clandestine removal.
In the present case, there is no admission of any clandestine removal by the appellant. Further, there is no evidence of transportation of the goods, receipt of the goods by the customers or receipt of the consideration by the appellant. In such a scenario, the confirmation of demand of duty cannot be upheld - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 808 - CESTAT ALLAHABAD
Clandestine removal - shortages of the finished goods - discrepancies in the RG-1 Register with the production slips - HELD THAT:- Commissioner (Appeals) set aside the impugned order by appreciating the assessee’s plea that the differences in stock between RG-1 and notebook has occurred due to different types of methods of calculation adopted i.e. ‘light standard’ method and ‘sectional weight’ method. He further observed that there is no corroborative evidence in the shape of procurement of raw materials, transportation of goods and copy of the sale receipt etc.
Reliance placed in Tribunal decision in the case of RA CASTINGS PVT. LTD. VERSUS COMMISSIONER OF C. EX., MEERUT-I [2008 (6) TMI 197 - CESTAT NEW DELHI] where it was observed that there is absolutely no evidence of manufacture and removal of the excisable goods.
As against the findings of Commissioner (Appeals), Revenue has not drawn our attention to any other factor so as to upset the findings of the Appellate Authority - there are no infirmity in the impugned order - appeal dismissed - decided against Revenue.
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2020 (2) TMI 753 - CESTAT KOLKATA
CENVAT Credit - receipt of inputs from other units - job-worker or not - Rule 4(5)(a) of the Cenvat Credit Rules, 2004 - allegation that the Unit No.I and Unit No.II being under the same management, Unit No.I cannot be treated as a job-worker of Unit No.II - HELD THAT:- The appellant company had received certain inputs from their Unit No.II for further processing and after the inputs were processed, the same were removed from Unit No.I to Unit No.II. The movement of inputs of the processed goods were carried out under Annexure-II Challans by following the procedure laid down under Rule 4(5)(a) of the Cenvat Credit Rules, 2002 - Undisputedly, the excise duty involved on the finished goods viz. transmission towers etc. had been discharged at their Unit No.II at the time of its clearance from the said unit to their respective customers.
The judgement of the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS JK. UDAIPUR UDYOG LTD. [2004 (9) TMI 101 - SUPREME COURT] relied upon by the adjudicating authority is not relevant, inasmuch as the Hon’ble Apex Court in the said case was confronted with the issue whether explosives used in mines at a distance away from the factory was to be considered as inputs.
Penalty imposed on the Managing Director is also set aside - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 752 - CESTAT KOLKATA
Interest on delayed refund - area based exemption - section 11BB of CEA - Board’s Circular 682/73/2002-CX dated 19.12.2002, as amended vide 842/19/2006-CX dated 08.12.2006 - It is the case of the Revenue that in view of the explicit instruction of the CBIC that the refunds under exemption Notification are different from the Refunds under Section 11B, interest under Section 11BB is not payable.
HELD THAT:- The circular No. 842/19/2006-CX dt. 08/12/2006, indeed clarifies that no interest under Section 11BB is payable on any refund arising out of Area Based Exemption Notification. However, we find that the Hon’ble High Court of Gauhati in the case of AMALGAMATED PLANTATIONS (P) LTD. VERSUS UNION OF INDIA [2013 (11) TMI 589 - GAUHATI HIGH COURT] has held that there was no distinction between refund under Area Based Exemption Notification and other refunds under Section 11B and interest under 11BB is payable on such refunds.
The settled legal position as on today is that interest is payable under Section 11BB in respect of refunds sanctioned as per Area Based Exemption Notification - the impugned Order has correctly sanctioned interest on the refunds and there is no infirmity in the same - Appeal dismissed - decided against Revenue.
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2020 (2) TMI 751 - CESTAT KOLKATA
Statutory period for review - benefit of N/N. 33/99 dated 08.07.1999 - whether in respect of Excise Appeal, the Review Order dated 08.09.2009 is beyond the period statutorily allowed for review? - HELD THAT:- Though the Commissioner may claim that the issue was not brought to his notice by way of proposing a review, it is very difficult to comprehend as to how such a huge refund involving amount of ₹ 25.00 Crores was not brought to the notice of the Commissioner formally or informally. Therefore there are no merits in the contentions of the appellants that the review could not be completed within the time limit prescribed as the order was not received and that the same could be taken up only after the receipt of duly attested photocopy of the Order-in-Original. In view of the above we hold that the review is undertaken much after the stipulated time limit prescribed therein.
Whether in the facts and circumstances of the case, the appellants are eligible for the exemption under the said Notification No.33/99 dated 08.07.1999? - HELD THAT:- Notification No.33/99 provides for exemption to goods specified in the schedule appended to the Notification and cleared from a unit located in the state of Assam or Tripura or Meghalaya or Mizoram or Nagaland or Arunachal Pradesh as the case may be. From so much of the duty of excise, leviable thereon under any of the said acts as is equivalent to the amount of duty paid by the manufacturer of goods from the account current maintained under Rule 9 read with Rule 173 G of the Central Excise Rules, 1944 - it is apparent that the exemption is available to the gas based intermediate products. Sub-Sl. No. 13(i) of the schedule relates to gas exploration and production. Whereas Sl.No.13 mentions about gas based inter-mediate products. Sub-Sl. No.(i) refers to gas exploration and production. It is evident that the schedule not only refers to certain products but also to certain processes. The only inference one can get is that the products generated in the processes mentioned are covered by the entry and are eligible for exemption.
The products mentioned at Sub-Sl. Nos. of Sl.No.13 to the schedule to the Notification are not gases. If one takes the view that the exemption is only applicable to products occurring in gaseous state are alone eligible for exemption to the items like plastics, fertilizers. Ammonium Nitrate etc. would not have formed a place in the list of the products made to be eligible for the Notification. Therefore an appropriate reading of the Notification would give an understanding that the main activity referred to therein is gas exploration and products which emerge as finally or intermediately in the process are eligible for exemption. As the wordings of the Notification are very clear no two interpretations are available and as such the case law cited by the learned Authorized Representative are of no avail.
The Notification squarely covers the impugned product and the benefit of the same is available to the respondents - the issue relating to whether or not R/45 was reviewed within the time limit becomes inconsequential - appeal dismissed.
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2020 (2) TMI 750 - CESTAT, AHMEDABAD
Classification of goods - Nimbooz Masala Soda - whether the product merit classification under Central Excise Tariff heading 2202 1020 as Lemonade as claimed by the department or under Central Excise Tariff heading 2202 9020 as Fruit pulp or Fruit juice based drink, as claimed by the appellant? - HELD THAT:- The very same issue has been referred to the Larger Bench and the Larger Bench in the case of M/S BRINDAVAN BEVERAGES PRIVATE LIMITED, KRANTI KUMAR CHANDRAKAR, M/S PEPSICO INDIA HOLDINGS PRIVATE LIMITED VERSUS COMMISSIONER CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, HAPUR AND BAREILLY [2019 (10) TMI 762 - CESTAT ALLAHABAD (LB)] including the present appellant's case, the Larger Bench answered the question vide that the 'Nimbooz Masala Soda' is classifiable under Central Excise Tariff heading 2202 90 20 under the category of Fruit pulp or Fruit juice.
Issue decided in favor of assessee - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 749 - CESTAT AHMEDABAD
CENVAT Credit - inputs/capital goods - Welding Electrodes - Welding filler wire - Materials used for railway line - M.S. Gratings/G.I Coated Gratings - Construction chemicals - demand alongwith interest and penalty.
Welding electrode - welding filler wire - HELD THAT:- All the items were used exclusively in relation to manufacture of final product in the appellants manufacturing unit. The welding electrode and welding filler wire were used for repair and maintenance of plant and machinery which is necessity to run the production of excisable goods. Therefore, the same is used even if not directly but indirectly indeed in relation to manufacture of final product - Credit allowed.
Materials used for railway line - HELD THAT:- In the present case railway line installed partly within the factory and outside the factory is exclusively used for handing of material which is used in the manufacture of final product - Hon’ble Supreme Court in the case of VIKRAM CEMENT VERSUS CCE, INDORE [2006 (2) TMI 1 - SUPREME COURT]), are of the view that credit on material used for laying rail line is admissible - credit allowed.
M.S. Gratings/G.I Coated Gratings - HELD THAT:- The same is used as accessory for supporting and holding for approaching how to plant/ processing units of refinery. The platforms for approaching or reaching out the plant is part and parcel of the entire plant and machinery particularly in large scale manufacturing unit without which the operation of plant is not possible. Therefore, the M.S. Gratings used as accessory in such structure is used in relation to the manufacture of final product - Credit allowed.
Construction chemical - HELD THAT:- The construction chemical was used for the maintenance of cooling towers, pumps, compressors and machine base plates etc. is used for maintenance and operation of the plant, therefore, the same can be classified as accessory for plant and machinery. Hence, being essential chemicals for running plant is admissible inputs and eligible for Cenvat Credit - credit allowed.
The appellants are entitled for Cenvat Credit in respect of the inputs/ capital goods in question - credit allowed - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 748 - CESTAT KOLKATA
Exemption to specified goods of chapters 50 to 63 - Textile and garments - fixation of Brand Name - whether affixing name, logo and particulars of the buyers such as FCI and State Governments on Hessian Bags/Sacks to comply with the requirement of Jute Control Orders would be treated as affixing of brand name within the meaning of N/N. 12/2011-CE dated 01.03.2011 and N/N. 30/2011-CE dated 24.03.2011?
HELD THAT:- The dispute involved in all the present appeals stands decided by the Hon’ble Supreme Court in the case of M/S. RDB TEXTILES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, KOLKATA-IV COMMISSIONERATE [2018 (2) TMI 825 - SUPREME COURT]. The Hon’ble Apex Court had examined the wordings of the Notification as it stood during the disputed period and decided that the printing of the name, logo and other particulars of buyer, like FCI and State Governments, were made by the manufacturers to comply with the requirements of Jute Control Order. The Hon’ble Supreme Court further held that the markings on jute bags were under compulsion of law and meant for identification, monitoring and control by Government Agencies and such markings cannot be considered as brand name. Accordingly, the Apex Court held that the benefit of N/N. 30/2004-CE will be available during the disputed period.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 691 - GUJARAT HIGH COURT
CENVAT Credit - capital goods - immovable goods or not - fabrication of Goliath Crane, Jib Crane, Gantry Crane, Electric Overhead Travelling (EOT) Crane, etc., which are embedded to earth can be treated as excisable goods - Cenvat Credit availed of Inputs/ Capital Goods like HR Plates, MS Flats, MS Coils, Wire Ropes, Rail, Welding Electrode and service used for fabrication of these cranes is admissible to the respondent – assessee - HELD THAT:- The cranes fabricated from HR Plates, MS Flats, MS Coils, Wire Ropes, Rail, Welding Electrode cannot be considered as “embedded to the earth” since they run on tracks fitted in and around the Dry Dock. Thus, they cannot be termed as immovable property. Moreover, merely because they may have to be dismantled to be shifted out of the respondent's premises does not make them immovable property.
The services for setting up a factory and any activity relating to business are specifically included within the definition. The Cranes being part of the factory of the respondent where the ships are manufactured and their fabrication being an activity relating to respondent's business, services used for fabrication thereof would be covered within the meaning of “input services” - Hence also, cenvat credit of service tax paid on such services availed by the respondent must be allowed.
Whether invoices issued for distribution of Service Tax paid by office other than that of manufacturer or producer or provider of output service as an Input Service Distributor for distribution of Service Tax is eligible for Input Service Credit and Input Service credit can be availed on such invoices? - HELD THAT:- There is no provision which creates any bar against a head office of a company from distributing credit of service tax paid on services purchased to its various units. Ordinarily, it is only the head office of a company which would place the orders for availing services, receive invoices towards purchases of input services and then distribute the credit of service tax paid to the company's various other units. Nowhere in the Cenvat Credit Rules, 2004 it is provided that for an office of a company to be termed as “input service distributor”, it must be mentioned in the LOP of the company's suit - Indisputably, the respondent EOU belongs to the company. Indisputably, the Mumbai office is the head office of the company. In fact, the Mumbai office of the company is registered as the Input Service Distributor with the service tax authorities. It is therefore obvious that the Mumbai office, being the head office of the company, which owns several units, receives invoices issued under the Service Tax Rules, 1994 towards the purchases of input services and issues invoice, bill or challan for the purpose of distributing the credit of service tax paid on said services to its various manufacturing units. There is no illegality in this whatsoever.
Whether Cenvat Credit of Input, Input Service or Capital Goods shown/ declared in Monthly Return (ER2) filed before Central Excise Officer (incharge of the factory) is admissible and qualifies as Cenvat Credit for the output service provider when same is not shown/ declared in ST3 Return to be filed before jurisdictional Service Tax authorities considering that criteria to qualify the same for such credit are different for manufacturer or Output Service Provider? - HELD THAT:- The input service credit cannot be denied on the ground that it is shown in the ER1 return instead of the ST3 returns since the cross utilization of credit of input and input service is permissible and cenvat credit on input, capital goods and input services used in the manufacturing goods or providing output service is available in common pool and cenvat credit taken during the period shown in ER1 or ST3 return would be the same and there is no restriction on utilization of the common input credit.
Whether the Cenvat Credit of duty paid on Input/ Capital Goods and Service Tax paid on taxable services used for fabrication of Dry Dock which is a concrete structure embedded to earth and immovable in nature eligible as Cenvat Credit as per Cenvat Credit Rules, 2004? - HELD THAT:- The items such as cement, steel, etc., used in constructing/ fabricating a Dry Dock, are clearly items used “in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not” and are therefore, “inputs” within the wide meaning of the said word as defined in the Rule 2(k) of the Cenvat Credit Rules, 2004 and therefore also, the Cenvat Credit of Excise Duty paid on the same cannot be denied.
Whether the Tribunal is justified in accepting the photocopy of the invoices as an admissible evidence/ record and remanding the proceeding back to the adjudicating authority for considering the issue afresh? - HELD THAT:- The CESTAT has observed that the Adjudicating Authority had held against the assessee on the basis of a report of the Superintendent which was not disclosed to the assessee and hence, the matter was remanded so that the said report could be provided to the assessee before taking a decision. The CESTAT directed the Adjudicating Authority to take appropriate decision afresh after providing the report and considering the assessee's submission - there are no merit in the submission canvassed on behalf of the appellant that no Cenvat Credit can be allowed in favour of the respondent in respect of the inputs, capital good and inputs service used to fabricate cranes and Dry Dock as the final product of the respondent is exempted from duty.
Appeal dismissed - decided against appellant.
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2020 (2) TMI 690 - MADRAS HIGH COURT
CENVAT Credit - capital units - lifting of Corporate Veil - all units have been merged at a later date, though at the time of receipt of capital goods, all the three units were separate entities and the goods were received and owned by M/s. JSWPL - HELD THAT:- The legal position is that, the ownership of the goods cannot be the criteria for denying the CENVAT credit assuming that the capital goods were purchased by JSWPL. However, the fact remains that, the capital goods were purchased in the name of JSWPL with Consignee SISCOL.
The place where the CPP was set up is part and parcel of the factory premises of SISCOL originally and it has never been separated as a separate unit or entity as the water was supplied by SISCOL to CPP and the power being generated by CPP would be fully supplied and would be utilised by the SISCOL alone. The major funds for setting up of CPP also was generated only from the sources of SISCOL. Even before setting up of CPP, permission was sought for by JSWPL from the Deputy Chief Inspector of Factories, Salem on the pretext that, the SISCOL was taken over by Jindal. Further, even under the condition of Rule 2(a)(1) and (1A), the capital goods purchased for the purpose of setting up CPP were fully used only in the factory premises of the SISCOL and therefore, the said contention of the Revenue by the learned counsel that, under definition Clause in Rule 2(a)(1) and (1A) of the CENVAT Credit Rules, the SISCOL was not entitled to take the CENVAT credit does not hold any water, therefore it is liable to be rejected.
Even if the CPP is located well away from the main factory of the manufacturer of final product, the capital goods purchased and utilised for such CPP even though not in the same factory premises, even then the manufacturer can take CENVAT credit. This has been explained and amplified by the subsequently amended Rule i.e., 2(a)(1A) of the CENVAT Credit Rules, 2004. Therefore, it has been explained or clarified in Rule (1A) which is in the aid of 2(a)(1).
The case of the Revenue that the Assessee i.e., original SISCOL who got merged with JSW Steel Limited and JSW Power Limited, did not have the authority or right to take the CENVAT credit during the relevant point of time for the capital goods used in the CPP set up in the factory premises or vicinity of the SISCOL cannot be accepted, as such stand taken by the Revenue, is unsustainable - there is no hesitation to hold that the order of the CESTAT, which is impugned herein, is fully justifiable and sustainable - appeal dismissed.
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2020 (2) TMI 689 - BOMBAY HIGH COURT
Extended period of limitation - imposition of penalty - benefit of an exemption N/N. 47 of 2002 dated 6 September 2002 as amended and N/N. 6 of 2006 dated 1 March 2006 - It was the case of the Appellant that the Respondent had availed of the benefit in respect of pipe fittings when the benefit of exemption was available only for ‘pipes’ and not for ‘pipe fittings’ - HELD THAT:- The Tribunal has found that throughout it’s returns the Respondent has clearly mentioned the benefit was availed on the pipe fittings and also in the invoices which were on record. We have not been shown any embargo on the Appellant to examine these returns and invoices before the audit took place. We had granted time to the Counsel for the Appellant to demonstrate this position. If in these facts the Tribunal took a view that this is not a case of suppression of facts, the view taken cannot be stated to be perverse. Merely because another view is possible, is not a ground to interfere.
The question of law as framed, in the present case does not give rise to any substantial question of law to entertain this Appeal - Appeal dismissed.
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2020 (2) TMI 688 - GUJARAT HIGH COURT
Permission for withdrawal of appeal - benefit of the scheme introduced by the Union of India, namely, Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- Permission, as prayed for, is granted - The appeal is disposed of as withdrawn with liberty to revive the same in case for any reason the application made under the scheme is not accepted.
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2020 (2) TMI 687 - GUJARAT HIGH COURT
Permission for withdrawal of appeal - benefit of the Sabka Vishwas [Legacy Dispute Resolution] Scheme, 2019 - HELD THAT:- According to the learned counsel, during the pendency of the present tax appeal, his client is not able to avail the benefit of the aforesaid scheme. In such circumstances, we permit the learned counsel to withdraw this tax appeal.
This tax appeal is accordingly disposed of as not pressed without expressing any opinion on the three substantial questions of law, which have been formulated in the present appeal.
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