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Central Excise - Case Laws
Showing 21 to 40 of 685 Records
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2020 (12) TMI 697 - UTTARAKHAND HIGH COURT
Refund claim - time prescribed u/s 11B of the Central Excise Act - mistake of law or not - exemption ab-initio - circular dated 15.03.2013 - refund of Terminal Excise Duty - HELD THAT:- The appeal is admitted on the substantial questions of law.
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2020 (12) TMI 696 - CESTAT KOLKATA
Recovery of CENVAT Credit - goods returned by its customers under Rule 16 of the Central Excise Rules, 2002 without proper documents - demand on the ground that the amount paid by the Appellant as excise duty was actually on trading of goods as the process of cutting, slitting and polishing on imported China pipes couldn’t be a manufacturing process - time limitation - HELD THAT:- The Appellant has produced copies of its tax invoice, credit note as well as buyer’s debit note for return of the said duty paid goods by its customers - From the same it is clear that the Appellant had sold goods after payment of excise duty to it’s customers and when the same are returned for any reason, the Appellant is entitled to Cenvat credit of the same subject to conditions of Rule 16 of the Central Excise Rules, 2002.
From the plain reading of the above Rule 16, it can be seen that though under Cenvat credit Rules, Cenvat credit is allowed only on input but under special provision of Rule 16, the Cenvat credit is allowed even on the finished goods on the condition that at the time of re-issue of such finished goods, the assessee is required to pay appropriate excise duty. In the present case, there is no dispute on payment of duty on the re-issue of the goods on which credit was taken. Therefore, in terms of Rule 16, the Appellant is entitled for the credit.
Te issue is no more res – integra - The Tribunal in the case of M/S. BALMER LAWRIE & CO. LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI [2016 (8) TMI 1113 - CESTAT MUMBAI] has held that irrespective of fact whether the invoices are of appellant or otherwise if duty paid goods is brought in the factory of the assessee credit can be allowed.
Thus, Appellant can avail the Cenvat credit of the duty paid goods and since there is no dispute in the present case that the goods were not duty paid goods. The demand for recovery of Cenvat credit fails. Further, it is also on record that the Appellant’s activities were known to the department since inception as earlier also a SCN dated 01/04/2015 was served on the Appellants for recovery of Cenvat credit availed on imported china pipes which were cleared after payment of duty.
Time Limitation - HELD THAT:- The current proceedings being on the same foot by treating amount paid by the Appellant as not excise duty, cannot be sustained by invoking extended period of limitation as the department was very much having knowledge of the entire proceedings since inception. Thus, the demand cannot sustain on limitation ground as well.
Appeal allowed - decided in favor of appellant.
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2020 (12) TMI 695 - CESTAT BANGALORE
Maintainability of appeal - not depositing the mandatory pre-deposit under Section 35F of CEA - HELD THAT:- The appellant had already filed Revision application challenging the decision of the Commissioner (Appeals) whereby the Commissioner (Appeals) had accepted the Department’s appeal. Also, the appellant has filed the revision application against the Order-in-Appeal passed by the Commissioner of Central Excise (Appeals), Bangalore. Also, the Revenue has now attached the copy of the notice issued by the Revisionary Authority which shows that the whole issue is pending with the Revisionary Authority, Government of India. Since the issue is pending before the Revisionary Authority, it was incumbent on the original authority not to adjudicate the protective notices issued by them and should have waited till the decision of the Revisionary Authority.
Matter remanded to the original authority with a direction to keep the whole matter in abeyance till the decision of the Revisionary Authority - appeal allowed by way of remand.
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2020 (12) TMI 636 - MADRAS HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed this Writ Petition - HELD THAT:- Hon'ble Supreme Court of India in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER [1984 (11) TMI 63 - SUPREME COURT] has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction holding that It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute.
There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute. It is also not the case of the Petitioner that the contentions raised in this Writ Petition could not be agitated in the appeal before the Appellate Authority - Viewed from that perspective, this Court is not inclined to delve into the merits of the controversy involved in this case, touching upon disputed questions of fact for effectual and complete adjudication of the matter.
Petition dismissed.
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2020 (12) TMI 635 - JHARKHAND HIGH COURT
Maintainability of appeal - appeal dismissed only on the ground that Committee on Disputes (COD) permission has not been taken at the time of filing of the appeal and till its disposal - HELD THAT:- The requirement of obtaining COD permission within 30 days was also not sacrosanct, but the institution of the suit was not prohibited, as the litigant was entitled to institute the proceeding to save limitation. The only rider was that the concerned Tribunal or Court could not proceed with the suit so long the COD permission was not taken. This prohibition or rider in proceeding with the case or suit by a Tribunal or a court of law was lifted by virtue of Constitution Bench decision in the case of ELECTRONICS CORPORATION OF INDIA LTD. VERSUS UNION OF INDIA & ORS. [2011 (2) TMI 3 - SUPREME COURT]. Therefore, on the date on which appeal was dismissed by the learned CESTAT, there was no bar in proceeding with the matter in the absence of COD permission.
The learned CESTAT proceeded on an erroneous understanding of law that the appeal instituted by the appellant on 1st June 2010 could not be decided on merits in the absence of COD permission - substantial question of law posed for determination in the instant appeal is answered in favour of the appellant.
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2020 (12) TMI 634 - CESTAT NEW DELHI
CENVAT Credit - capital goods - production and clearance of dutiable goods takes place within two years from the date of commencement of production / installation of capital goods - applicability of amended rule 6(4) of CCR - goods exported under bond - exempt goods or not - HELD THAT:- On perusal of the amended rule 6(4) extracted supra, it is clear that no credit shall be allowed on capital goods used exclusively in the manufacture of the exempted goods or in providing exempted services for a period of two years from the date of commencement of the commercial production or from the date of installation of capital goods. In the instant case the fact that the capital goods are installed during 2016-17 is not disputed. The only dispute that is raised by the Revenue is that during 2016-17 the appellant has either cleared the goods availing the exemption under notification 30/2004 or exported the goods under bond under rule 19. It appears that the impugned order fails to take into consideration the amended rule which is very clear that credit is not admissible if the said capital goods are utilized exclusively in the manufacture of exempted goods for a period of two years from the date of commencement of commercial production or from the date of installation of capital goods.
In the instant case, the capital goods are installed after commencement of production in the year 2016-17. The credit would have been inadmissible to the appellant if they have continued to clear exempted goods till 2018-19. However, records of the case indicate that the appellant has cleared goods on payment of duty during 2017-18 as evidenced by the ER-1 filed for the month of June 2017. Therefore, in view of the amended provisions the credit is admissible to the appellant.
The appellant have also taken an alternative plea that goods exported under bond cannot be treated as exempted goods and therefore inspite of the fact that they have cleared only exempted goods during 2016-17 are cleared goods for export under Rule 19, credit is admissible - the provisions of amended rule being clear and the conditions thereupon have been fulfilled by the appellant and hence credit is admissible.
Appeal allowed - decided in favor of appellant.
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2020 (12) TMI 633 - CESTAT NEW DELHI
Maintainability of appeal - preliminary submission has been raised by respondent that the appeal filed by the Department is liable to be dismissed for the reason that the issue raised in this appeal has already been decided by the Tribunal and the order passed by the Tribunal in favour of the respondent has not been set aside in any proceedings - Recovery of CENVAT Credit - only trading of goods and no manufacture.
HELD THAT:- Learned authorised representative appearing for the appellant states that he is not aware whether any appeal was filed by the Department against the order dated September 18, 2018 passed by the Tribunal or whether the order has been set aside.
The order passed by the Tribunal was against the Department and, therefore, the Department should be aware as to whether any appeal has been filed or not.
As the Department has not placed on record any decision setting aside the aforesaid order of the Tribunal, the present appeal filed by the Department deserves to be dismissed - Appeal dismissed.
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2020 (12) TMI 615 - GUJARAT HIGH COURT
Rejection of declaration in form SVLDRS-1 - rejected on the ground that the appeal filed by the writ applicant is pending with the Textile Committee (Cess) Tribunal at Mumbai and such tribunal is not included in the definition of Appellate Forum - HELD THAT:- Mr. Dave, the learned counsel appearing for the writ applicant has invited the attention of this Court first to the definition to the term ‘’Appellate Forum’’ as defined under Section 121 (f) of the Scheme, 2019. Thereafter, Mr. Dave invited the attention of this Court to Section 122, which prescribes as to which particular enactment the scheme would be applicable and in the last, he invited the attention to the provisions of Section 123 of the Scheme, which defines or rather explains the term ‘’tax dues’’. The argument of Mr. Dave is that Section 123(a) of the Scheme only talks about the Appellate Forum. It does not specify about any particular forum.
Let Notice be issued to the respondents, returnable on 20.01.2021.
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2020 (12) TMI 531 - GUJARAT HIGH COURT
Rejection of Declaration in form SVLDRS-1 - rejection on the ground that the appeal filed by the writ applicant is pending with the Textile Committee (Cess) Tribunal at Mumbai and such tribunal is not included in the definition of Appellate Forums - Appellate Forum for the purpose of Section 121(f) of the SVLDR Scheme - HELD THAT:- Mr. Dave, the learned counsel appearing for the writ applicant has invited the attention of this Court first to the definition to the term ‘’Appellate Forum’’ as defined under Section 121 (f) of the Scheme, 2019 - thereafter, Mr. Dave invited the attention of this Court to Section 122, which prescribes as to which particular enactment the scheme would be applicable and in the last, he invited the attention to the provisions of Section 123 of the Scheme, which defines or rather explains the term ‘’tax dues’’. The argument of Mr. Dave is that Section 123(a) of the Scheme only talks about the Appellate Forum. It does not specify about any particular forum.
Let Notice be issued to the respondents, returnable on 20.01.2021.
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2020 (12) TMI 514 - DELHI HIGH COURT
Reward to the informer - Duty evasion - Directions to the respondents to constitute a committee so as to consider the case of the petitioner in a time-bound period - grievance of the petitioner is that as per the reward policy floated by the respondents, the reward as stipulated has not been paid to him - HELD THAT:- The petitioner are directed to furnish the details of the petitioner along with the representation filed by the petitioner to the learned counsel who is appearing for respondent No.1, in a sealed cover. The learned counsel for respondent No.1, in turn, shall supply the said details to the concerned respondent authorities in a sealed cover - The representation will be decided by the concerned respondent authorities in accordance with law, rules, regulations and Government policies applicable to the facts of the case and on the basis of materials on record, as expeditiously as possible and practicable.
Petition disposed off.
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2020 (12) TMI 504 - CESTAT NEW DELHI
Interpretation of statute - rule 3 of Central Excise Rules - Provisions Applicable to Packages Intended for Retail Sale - Method of Valuation - wall putty in packages of 40kg - to be valued under section 4 of the Central Excise Act, 1944 or under section 4A of the Excise Act? - Extended period of limitation - Legal Metrology Department clarified to the Appellant that “if wall putty is packed in packages above 25 kgs, as per Rule 3(a) of the said Rules, the provisions of Chapter II including Rule 6(1)(e), (requiring printing of MRP) do not apply to such packages” and further that “packages of 40 kg and 50 kg of all the goods other than cement & fertilizer, are exempted from affixing of MRP declaration.
HELD THAT:- Merely because MRP was declared on the package will not mean that the valuation of the excisable goods for the purposes of charging of duty of excise should be carried out under section 4A of the Excise Act, if otherwise in law, the valuation is required to be undertaken under section 4 of the Excise Act. The Board by a Circular dated February 28, 2002, has also clarified that section 4A of the Excise Act will not be attracted when there is no statutory requirement of affixing MRP on the goods in question, even though an assessee may have voluntarily affixed the MRP on such goods.
As the appellant had cleared wall putty in packages of 40 kg, the provisions of rule 6 contained in Chapter II of the Rules will not apply and if this be so, the provisions of section 4A of the Excise Act under which the value of goods is deemed to be the retail sale price declared on such goods, would not be applicable. The appellant was, therefore, justified in determining the value of the goods under section 4 of the Excise Act.
In H & R JOHNSON (INDIA) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIGAD [2014 (6) TMI 453 - CESTAT MUMBAI] the assessee cleared tiles in retail packages to real estate developers after affixing MRP and paid duty on MRP basis under section 4A of the Excise Act. The Department contended that since the sales were made to institutional/industrial consumers, the Rules would have no application and duty must be paid under section 4. The Tribunal held that there is no difference in respect of packages sold to retail customers and sold to the alleged industrial consumers. The Tribunal also held that the clarifications issued by the Legal Metrology Department, cannot be disregarded. The decision would have no application in the present case since there is no requirement to examine whether the 40 kg packages are capable of being sold in retail since such packages are outrightly excluded from the purview of the Rules.
The Principal Commissioner was not justified in concluding that the valuation of wall putty in packages of 40 kg was required to be determined under section 4A of the Excise Act - Appeal allowed - decided in favor of appellant.
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2020 (12) TMI 502 - CESTAT NEW DELHI
Interest on delayed refund - Relevant date for calculation of refund - amount deposited during investigation being form part of pre-deposit - from the date of deposit till the refund of the pre-deposit of principal amount or otherwise? - Section 11BB of Central Excise Act - HELD THAT:- The issue decided in the case of M/S. FUJIKAWA POWER AND M/S. KENZO INTERNATIONAL VERSUS CCE & ST, CHANDIGARH-I [2019 (11) TMI 1197 - CESTAT CHANDIGARH] where it was held that the appellants are entitled to claim interest from the date of payment of initial amount till the date its refund @ 12% per annum.
The adjudicating authority is directed to grant interest from the date of deposit till the date of grant of refund @12% per annum - Appeal allowed - decided in favor of appellant.
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2020 (12) TMI 475 - MADRAS HIGH COURT
Maintainability of appeal - availability of alternative remedy of appeal - Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed this Writ Petition on 01.03.2017 challenging the order passed by the Respondent - HELD THAT:- There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute.
Hon'ble Supreme Court of India in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER [1984 (11) TMI 63 - SUPREME COURT] has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction where it was held that It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article226 of the Constitution.
Petition dismissed.
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2020 (12) TMI 431 - CESTAT MUMBAI
Refund of CENVAT Credit - Restoration / re-Credit if amount is not refunded - export goods or not - goods were cleared by the appellant, not for physical exports, but were cleared by them to their sister concern, who is an 100% Export Oriented Unit - Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No 27/2012-CE (NT) dated 18.06.2012 - HELD THAT:- Tribunal in the case of THE COMMISSIONER OF CENTRAL EXCISE, PUNE-III VERSUS TRIMURTI PLAST CONTAINERS PVT LTD [2018 (3) TMI 325 - CESTAT MUMBAI] has after taking the note of Explanation (1A) inserted in Rule 5 of CENVAT Credit Rules, 2004 vide notification No 06/2015-CE(NT) dated 01.03.2015, have held that refund in terms of the Rule 5 of CENVAT Credit Rules, 2004 is admissible only in respect of the goods cleared for physical exports by the applicant, and is not admissible in respect of the goods that are cleared as deemed exports.
In the present case admittedly the goods were cleared by the appellant, not for physical exports, but were cleared by them to their sister concern, who is an 100% Export Oriented Unit. Since these goods were not cleared for physical exports by the applicant, in view of the definition of “export goods”, as per explanation (1A) inserted in Rule 5 of CENVAT Credit Rules, 2004, they do not qualify to be included in the export turnover of the appellant for the purpose of computing the refund under rule 5.
It is requirement in law for claiming the refund under Rule 5, the claimant has to make a debit of the amount claimed as refund from the CENVAT Account. In case the refund is allowed in his favour the amount of debited from the CENVAT Account gets adjusted against the refund paid in cash, and in case the refund is rejected or even rejected in part, then the amount of refund which is rejected either in toto or in part, which was earlier debited from the CENVAT Account gets restored in the CENVAT Account of the claimant.
Appeal disposed off.
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2020 (12) TMI 415 - CESTAT CHANDIGARH
Recredit of amount already reversed - Section 142(3) of the CGST Act 2017 - HELD THAT:- It is a fact on record that when the appellant filed the refund claim of cenvat credit reversed by them, it was not the issue but with the introduction of CGST Act 2017, the issue of re-credit was arise in terms of Section 142 (3) of the CGST Act 2017 and the appellant was having no occasion to raise the issue of the re-credit before the adjudicating authority as the adjudicating authority itself has passed the impugned order after introduction of CGST Act 2017. Moreover, the issue of entitlement of re-credit is a legal issue and the same may be raised in the case proceedings.
The appellant is entitled to recredit of the amount already reversed before introduction of CGST Act 2017 - Appeal allowed - decided in favor of appellant.
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2020 (12) TMI 365 - CESTAT CHANDIGARH
CENVAT Credit - rejected goods - rectify/re-make the goods for sale - case of the revenue is that in the cases, the goods were cleared as scrap, the appellant is required to pay cenvat credit availed on such goods at the time of clearance as they have removed the goods as such in terms of Rule 16(2) of Central Excise Rules, 2002 - HELD THAT:- The rejected goods were received by the appellant and at the time of receiving the rejected goods, the appellant took the cenvat credit in terms of Rule 16 of Central Excise Rules, 2002. It is also fact on record that these goods were subject to re-make and during the process of re-make certain goods were found cannot be re-made and the same were cleared as scrap on payment of duty, therefore, the provision of Rule 16(2) are not applicable to the facts of this case to allege that the goods were cleared as such. In fact, as per the facts of the case itself, it is clear that the returned goods were subjected to some process and when they were not found up to the mark were cleared on payment of duty as scrap - The appellant has correctly paid the duty as scrap at the time of clearances.
Revenue Neutrality - HELD THAT:- The appellant has cleared these goods to their another unit. Admittedly, whatever duty have been paid, the same are entitled to cenvat credit to themselves. In that circumstances, it is a revenue neutral situation. In that circumstances also, the appellant are not required to pay any differential duty or any amount on account of cenvat credit.
Appeal allowed - decided in favor of appellant.
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2020 (12) TMI 364 - CESTAT CHANDIGARH
CENVAT Credit - input services or not - service of repairs and renovation of factory premises - service of running health centre - disposal of hazardous waste.
Service tax credit on repairs/maintenance of civil structure/building - HELD THAT:- There are no such service to allege that the appellant has taken Cenvat credit on the services relating to construction of various civil structures or building/laying on foundation or making structure for spot capital goods. The allegation in the show cause notice to deny service tax is without any basis and nobody bother about to find out what was the audit objection and what is the allegation in the show cause notice, both authorities below as did not pay any head to the request of the appellant to go through the factual position of the case. Instead of doing so, both the authorities has supported the show cause notice which does not have any basis. On this along ground, the whole show cause notice can be quashed but in the interest of justice, the merits of the case are required to be discussed.
Admittedly, in this case the appellant has taken Cenvat credit on repairs and maintenance of factory premises for building which is allowed as Cenvat credit in terms of definition of input service under Rule 2(l) of the Cenvat Credit Rules, 2004 - credit is allowed.
Cenvat credit of manpower service for running health centre - HELD THAT:- Admittedly, in the case in hand the appellant is required to maintain health centre in terms of Factories Act, 1948, therefore, the appellant are entitled to avail Cenvat credit on health services in question - Credit allowed.
CENVAT Credit - Disposal of hazardous waste - HELD THAT:- As per show cause notice the total Cenvat credit of ₹ 37,23,475/- was proposed to disallow to the appellant, but the Ld. Commissioner (Appeal) hold that the appellant is entitled to avail Cenvat credit on the said service but allowed Cenvat credit only to the tune of 37,17,304/-. The reasons are best known to the Ld. Commissioner (Appeal) for denial of Cenvat credit of ₹ 6,171/- for the service of disposal of hazardous waste, as the reasons have not been disclosed by the Ld. Commissioner (Appeal), in the impugned order for denial of Cenvat credit of ₹ 6,171/- the act of ld. Commissioner (Appeal) cannot be appreciated - Credit allowed.
Appeal allowed - decided in favor of appellant.
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2020 (12) TMI 316 - ALLAHABAD HIGH COURT
Rejection of declaration filed under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - SVLDRS - application of the petitioner for taking benefit of the aforesaid scheme has been arbitrarily rejected by impugned communication dated 26.02.2020 on the ground that as per Section 125 (1)(h) of the Finance (No.2) Act, 2019 the product i.e. SKO is set forth in the 4th Schedule of Central Excise Tariff Act, 1944 - vires of of section 174 of Central Goods and Service Tax 2017 and also violative of Entry No.84 of List – I (Union List) of the Seventh Schedule to Constitution of India - HELD THAT:- Perusal of the Fourth Schedule to the Central Excise Act, 1944 and the provisions of Section 2(d) read with Section 2(f)(ii) leaves no manner of doubt that Superior Kerosene Oil is an excisable goods under the Central Excise Act, 1944, even if no rate of duty has been notified by the Central Government under the Act, 1944. Section 125(1)(h) of the Finance (No.2) Act, 2019 (Sabka Vishwas Scheme) specifically excludes applicability of the “Sabka Vishwas Scheme” with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act 1944 - Since the 'SKO” is an excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944, therefore, the petitioner was not eligible to make a declaration under the Scheme in view of Section 125 of the Finance (No.2) Act 2019.
Undisputedly, Superior Kerosene Oil is mentioned in the Fourth Schedule although no rate of duty has been provided. If rate of duty has not been provided it shall merely mean that no duty is leviable in the absence of rate of duty. It does not mean that such goods are not excisable. All the goods mentioned in Fourth Schedule to the Act, 1944 shall continue to be excisable goods unless the goods is removed from the Schedule by an amendment. Section 174 of the CGST Act has not repealed the Central Excise Act, 1944 as respect to the goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution. The Central Excise Act, 1944 as amended by Act 18 of 2017 has been enacted with respect to the goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution which includes S.K.O.
Deletion of SKO from the Fourth Schedule of Central Excise Tariff Act, 1944 - HELD THAT:- There is no such Act. The relief sought is without substance. Apart from this, inclusion of SKO in the Fourth Schedule of the Act, 1944 is not violative of Section 174 of the CGST Act, 2017.
The petitioner/declarant could avail benefit of the “Sabka Vishwas Scheme” only in accordance with the provisions of the Scheme. Section 125(1)(h) of the Act 2019/“Sabka Vishwas Scheme” has specifically excluded persons seeking to make declarations with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944. Undisputedly, S.K.O. is an excisable goods set forth in the Fourth Schedule to the Act, 1944. The petitioner was not eligible to make a declaration under the “Sabka Vishwas Scheme” with respect to “S.K.O.” - non acceptance of the declaration of the petitioner by the respondents does not suffer from any manifest error of law.
Petition dismissed.
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2020 (12) TMI 279 - BOMBAY HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - Principles of Natural Justice - Rule 17(2) of the Pan Masala Packing Machines (Capacity, Determination and Collection of Duty) Rules, 2008 - HELD THAT:- The alternative remedy of appeal is efficacious and the reason given for not invoking the same i.e. pre-deposit being burdensome does not appeal to us. Accordingly, we relegate the petitioners to the remedy available under the CGST Act by way of appeal.
The challenge to the vires of Rule 17(2) of the Pan Masala Rules is rather without substance and therefore we do not consider it necessary to deal with the same in this case.
Petition dismissed.
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2020 (12) TMI 191 - CESTAT HYDERABAD
Clandestine Removal - Resins - misdeclaration of goods - substantial evidences or not - dummy firms - it is argued that entire case has been built on assumptions and presumptions - clearance of resins clandestinely in the guise of orthoxylene - evidentiary value of any statement made before the Central Excise officer under section 14 of Central Excise Act - Difference of Opinion - matter referred to third member - HELD THAT:- In view of the difference of opinion, the following questions arise for consideration by learned third Member:-
1. There is lack of sufficient evidence, as evidence being the statement of some of the persons given in the course of investigation is not reliable, as such persons have not stood by their earlier statement at the time of cross examination or not appeared for crossexamination, as held by learned Member (Technical)
Or
The statements of the persons recorded at the time of investigation is based or co-relatable with documentary evidence. Such documentary evidence having not been denied, the denial of clandestinely removed goods in cross-examination is of no avail to the appellant and such evidence is reliable for the purpose of adjudication as held by Member (Judicial).
2. The case of Revenue is not proved on the principle of preponderance of probability and accordingly the appeals are fit to be allowed as held by learned Member (Technical)
Or
In view of the documentary evidence brought on record in the course of investigation and duly supported by oral evidence of several persons and also supported by some of the key persons involved in the transaction, including in the course of cross-examination, the allegation of Revenue is established and accordingly the appeals are fit to be dismissed as held by Member (Judicial).
The Registry is directed to put up the appeal record before the Hon’ble President for nomination of learned third Member to consider the aforementioned questions and difference of opinion, for his opinion.
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