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Central Excise - Case Laws
Showing 61 to 80 of 685 Records
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2020 (11) TMI 579 - CESTAT MUMBAI
Application for early hearing of the appeal - application has been filed on the ground that the amount involved in the matter is quite substantial and also recurring in nature - HELD THAT:- Since we do not find any NOC available on the file from the earlier counsel, i.e. Shri Lakshmikumaran & Sridharan, filed uptil now, we are not in position to hold that this early hearing application has been properly constituted and hence should not be maintainable.
The Registry is directed to consider listing the appeal after three weeks on or about 26.11.2020 for final hearing if all the NOCs and other documents are completed before that date - Matter to be listed on 26.11.2020 for completion of records and hearing.
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2020 (11) TMI 556 - SC ORDER
Area Based Exemption - Northeastern/Backward region - substantial expansion or not - doctrine of promissory estoppel - benefit of N/N. 39/2001-CE dated 31-07-2001 - Irregular availment of CENVAT Credit - Bogus Sale - it is argued that in respect of North-eastern area, there is not even a single case of detection of fraudulent availment of benefit.
HELD THAT:- The petition is dismissed as having become infructuous.
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2020 (11) TMI 549 - CESTAT KOLKATA
Clandestine Removal - 13683.05 MT of MS Billets - cogent, positive and concrete evidence to prove the said allegation, present or not - unaccounted purchase of various raw materials - reliability of third party documents - HELD THAT:- It is found from the show cause notice, that the allegation itself was that ‘in the specific question set out before him as to how he would disprove the facts of such clandestine clearance of their finished goods side by side their authorised clearance, whereas both of which have candidly confessed by M/s SPRML. Shri Mahapatra miserably failed to disprove the same whereby it led to the natural conclusion of conscious and organized modus operandi to evade legitimate Govt revenue in the guise of transaction that they have pretended to project themselves in clearing only authorised clearance of goods with M/s SPRML.
It can be made out that the Notice means to say that Shri Mahapatra could not disprove the allegation; it was accepted by Shri Debasis Samal and Shri Anil Jain of M/s SPRML and that in spite of the same Shri Mohapatra maintained that they have not cleared any goods other than those shown in authorised clearances. We find that the above is only an allegation and the department has not adduced any evidence whatsoever to establish the case of clandestine removal against the appellants. It was incumbent upon the department, who are alleging, to prove the same with evidence. The reliability of such an evidence becomes weak as the same comes from a third party. It has been alleged that the appellants have clandestinely removed 13,683.05 MT of MS Billets without payment of duty.
The allegation is only based on the data set to have been recovered from the secret office of M/s SPRML and no other evidence has been put forth. We find that as averred by the learned Counsel for the appellants, reliance cannot be placed only on the evidence available with the Third Party.
The appellants have alleged that while obtaining the electronic record at M/s SPRML, department did not adhere to the provisions of 36(B) of the Central Excise Act, 1944 and a certificate as required under Section 36B(4) is not issued. It is found that neither the SCN nor the adjudication order have dealt with the facts relating to this issue and from the records of the case, it cannot be made out whether the same were followed. The learned commissioner did not controvert the allegations in the adjudication order. Therefore, the reliance on the records thus seized from M/s SPRML alone, do not help the case of department, unless the same are corroborated by other evidence.
We agree to the proposition of the learned Commissioner that the department is not required to prove clandestine removal by mathematical precision. However, the instant case, we find that not even single evidence has been brought on record to show clandestine removal, conclusively establishing at least in a sample transaction. We find that the Annexure-H contains alleged receipts by M/s SPRML date wise from the appellants - Having conducted no investigation whatsoever, department cannot confirm the demand only on the basis of documents seized from some other person, more so the contents of which were never accepted by the appellants and cross examination was not allowed. If allegations can be made just on evidence obtained from third parties, there would be no dearth of such cases. We find that leaving alone proof with a mathematical precision, in the instant case, evidence made available is not even enough even for a Gross approximation. The appellant has relied upon a number of cases wherein it was settled that in order to prove the allegations of clandestine removal the department must bring on record cogent, positive and concrete evidence to prove the said allegation, the said allegation cannot be sustained on the basis of assumptions and conjectures.
Though, there is no bar in issuing SCNs for the same period covering different aspects backed by different set of evidence, it is not understood as to why the Department chose to issue different SCNs to the appellant on the allegation of clandestine removal when the genesis of both the cases was in the investigation conducted by DGCEI against M/s SPRML. However, as we found that the present SCN is not sustainable on merits, we are not going into the above issue. The appellants have also raised an issue that while the appellants have been issued a SCN alleging clandestine removal to M/s SPRML on the basis of documents alleged to have been recovered from M/s SPRML, M/s SPRML have not been made party to the impugned SCN and thereby, the case suffers from the principle of non-joinder.
Appeal allowed.
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2020 (11) TMI 548 - CESTAT NEW DELHI
SSI Exemption - clandestine removal - manufacture of MCBs (Miniature Circuit Breaker) - use of Brand name of others - demand of duty by the Department is primarily worked out on the basis of a rough register (RUD-26), which was recovered from the factory, alleged to be showing movement of the goods i.e. removal of finished goods and receipt of raw/packing materials - retraction of statements - SCN issued about 20 days before the end of 5 years from the date of search - HELD THAT:- It is evident on the face of the record that the show cause notice was issued by way of wide guess work wherein duty demand of ₹ 1.22 crores was made approximately. Further, the Revenue in the proceeding before the Settlement Commissioner itself revised the demand at ₹ 49,50,711/-, thereafter in the adjudication proceedings, the demand was further reduced and confirmed at ₹ 34,94,797/- which was also found erroneous and further reduced by the Commissioner (Appeals) at ₹ 34,06,203/-. It is also noted that the installed capacity (30,000 switches per month) as certified by the Chartered Engineer has not been found to be untrue or wrong, and the same was not considered without assigning any reason by the court below. It is also evident from the overall state of affairs that the appellant have not maintained proper records of the transactions. Further it is found that the Rough register (RUD-26) on the basis of which the quantum of clandestine removal has been estimated, is not reliable, as the author of the same Shri Sanjay has not been examined by the Revenue, neither the proprietor - Shri Ashish Gaur have been interrogated about the entry and interpretation in the said rough register. From the statement dated 15.12.2010 of Shri A. Gaur under Section 14 of the Act, it is found that there is no categorical admission of clandestine removal. Further this statement was retracted within a week.
Further, Revenue have not worked out the source of raw material for manufacture of the huge quantity alleged to be clandestinely cleared, nor flow back of the proceeds of the alleged clandestine removal. Further, no adverse quantitative ratio has been found out nor any adverse ratio with respect to consumption of electricity is found. Admittedly, the total electricity bill for the two months in dispute is about ₹ 20,100/- or ₹ 10,000/- per month approximately. With such meager consumption of power and taking in view the installed capacity, as well as the idle time due to power failure or break down of machine from time to time, the estimated production and confirming of duty by Revenue is found to be erroneous and high pitched.
In the interest of justice, the demand of duty is restricted to ₹ 2,51,596/-, which is the duty accepted or admitted by the appellant in their pleadings. This amount will further be adjustable from the duty liability disclosed in the Returns for the relevant period. Accordingly, penalty under Section 11AC read with Rule 25 of Central Excise Rules is set aside as case of Revenue is not proved.
Appeal allowed in part.
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2020 (11) TMI 544 - CESTAT AHMEDABAD
CENVAT Credit - input services used for the Repair and Maintenance Service, etc of wind mills located far away from the factory - applicability of Rule 6(1) of Cenvat Credit Rules, 2004 - HELD THAT:- The explanation inserted to Notification No. 6/2015- CE (NT) dated 01.03.2015 come in to play if the appellant sold the electricity generated the appellant’s counsel has confirmed that they never sold electricity generated from the wind mill - In the present case, appellant have never sold any electricity generated from the wind mill to anybody and , therefore, they are not hit by the mischief Rule 6(1) of CENVAT Credit Rules, 2004.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 542 - CESTAT AHMEDABAD
CENVAT credit - input services - gardening services - appellants are engaged in manufacturing of gear motors - denial on account of nexus - HELD THAT:- The compliance of various environment related laws and factories act mandate clean environment in factory. Thus, the said service becomes essential for functioning of the factory.
Credit allowed - appeal allowed - decided in favor of appellant.
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2020 (11) TMI 540 - CESTAT KOLKATA
CENVAT Credit - input - input services - Cement, TMT Bar, Beam, Angle, Channels & Joist etc. - inward transportation services - HELD THAT:- The Ld. Adjudicating authority had confirmed the demand of recovery of Cenvat credit on items such as Cement, TMT Bar, Beam, Angle, Channels & Joist by relying on the judgment of the Larger bench of the Tribunal in the case of VANDANA GLOBAL LTD. VERSUS CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)],. However, the said judgment, as rightly pointed by the Ld. CA has been quashed by the Hon’ble High Court of Chattisgarh. Also, the Hon’ble Calcutta High Court had in the case of SURYA ALLOY INDUSTRIES LTD. VERSUS UNION OF INDIA [2014 (9) TMI 406 - CALCUTTA HIGH COURT] had disapproved the judgment of the Larger Bench. Thus, the Cenvat credit of the items along with Service tax credit of inward transportation for such items is an eligible Cenvat credit upto 06/07/2009 and hence we are of the view that the appeal to this extent ought to be allowed.
The usage of various iron and steels items is to be analysed in light of the decision of the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS LTD. [2010 (7) TMI 12 - SUPREME COURT]. In this judgement, the Hon’ble Supreme Court has referred to the ‘user test’ outlined in the case of COMMISSIONER OF C. EX., COIMBATORE VERSUS JAWAHAR MILLS LTD. [2001 (7) TMI 118 - SUPREME COURT], which lays down the ratio in determining whether particular goods could be categorized as capital goods or not.
As regards the period post 07/07/2009, it is seen from the records that the Appellant has already reversed a substantial amount of Cenvat credit being ₹ 16,29,837/-. Since the issue therein was in respect of interpretation of law, we are of the considered view that there cannot be any deliberate suppression, as alleged in the impugned order.
Appeal disposed off.
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2020 (11) TMI 539 - CESTAT KOLKATA
Application for withdrawal of appeal - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- Registry is directed to list the appeal for regular hearing on 28.10.2020.
The Misc. Application for withdrawal of appeal is dismissed as infructuous.
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2020 (11) TMI 490 - CESTAT NEW DELHI
Reversal of CENVAT Credit - common inputs used for taxable as well as exempt goods - non-maintenance of separate records - Ammonia - intermediate goods/captive consumption - Sl.No.86 of Notification No.12/2012 - period of dispute is April, 2015 to Jan. 2016 and Feb., 2016 to March, 2016 - Extended period of Limitation - HELD THAT:- Evidently, when the appellant clears part of Ammonia being Surplus, on payment of duty, admittedly, the final product being cleared is Ammonia. Therefore, Ammonia becomes the dutiable goods manufactured by the appellant. Majority of the Ammonia so produced, however, is used as an intermediate product and consumed for the manufacture of Urea. Thus, the final product of the appellant is Urea and SSP (exempt). Thus, the captively consumed Ammonia cannot be treated as exempted final product by any stretch of imagination. The final product of the appellant is Ammonia, Urea and SSP, value of which has been taken for computation under Rule 6 (3A).
Revenue is trying to stretch the law in disregard to express provisions of the Act and the Cenvat Credit Rules. Rule 6(3)(i) provides for payment of an amount equal to 6% of value of the exempted goods and 7% of value of the exempted services; or (ii) pay an amount as determined under sub-rule (3A); or (iii) maintain separate accounts - It is further provided under Rule 6(3A) (b) to apply the standard formula for calculating the amount to be reversed or the ineligible Cenvat Credit.
Rule 6 is attracted only in case, where an assessee manufacturers two output goods or is rendering two output services, where one is exempt and the other dutiable. Further, Statute is very clear, under the Rule 6(3)(ii) read with Rule 6(3A), which clearly provides for eligibility of input services in or in relation to the manufacture of exempted goods, and its clearance upto the place of removal shall be calculated proportionately - it is evident from the plain reading of the Rule that it speaks about the goods manufactured and removed during the financial year, and the intermediate products emerges during the manufacture of exempted final products.
Extended period of Limitation - HELD THAT:- The issue being wholly interpretational, extended period of limitation is not invokable.
The case of the Revenue is mis-conceived and the show cause notice is bad - Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 434 - CESTAT NEW DELHI
Clandestine manufacture and removal - MS Ingots - Excess consumption of electricity - third party evidences - corroborative evidences or not - demand based on assumption and preseumption - demand of Central Excise duty along with imposition of Personal Penalty - xtended period of limitation - HELD THAT:- It is found that the demand has been confirmed only on the basis of the unsubstantiated evidence being the private records of the two brokers viz. M/s.Monu Steels and Kailash Traders and the statement of their proprietors. Further, it is found that the author of private records of M/s. Monu Steels - Mr. Bal Mukund was never examined by the Revenue. Further, M/s. S.K. Pansari during his cross examination has admitted that the said records were maintained under his instructions by Shri Bal Mukund Pansari. Further, Revenue have failed to find out any inconsistency in the records of the appellant, nor there is any seizure of any consignment of goods being raw materials or finished goods, being transported without the documents or clandestinely.
It is also observed that although the third party records are good evidence of suspicion of clandestine activity, but the same cannot be adopted for concluding the charge of clandestine removal in the absence of corroborative evidence. Further, in spite of the names being found of the parties, to whom the alleged clandestine removal has been despatched, there is no further inquiry made from the alleged receivers of goods - the demand against the appellant is not sustainable, in absence of sufficient evidence of clandestine manufacture and removal of the goods.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 433 - CESTAT CHANDIGARH
Cross-examination of witnesses denied - violation of principle of natural justice - Section 129A (i) of the Customs Act, 1962 - HELD THAT:- To the earlier proceedings when the matter was remanded vide order dated 19.09.2014, this Tribunal has directed the adjudicating authority to consider the plea for cross examination of deponents by the adjudicating authority. By going through the impugned order, the cross examination of the persons has been rejected without assigning any reasons, therefore, the arguments made by the Ld. AR are futile as the impugned order for rejection of cross examination is not a speaking order. The way of working of the adjudicating authority cannot be appreciated in these terms - There are no merit in rejecting the request of cross examination without assigning any reasons.
The adjudicating authority is directed to consider the request of the appellant for cross examination of the persons and personal hearing be granted for the said request pass a speaking order whether cross examination can be granted or not - appeal allowed - decided in favor of appellant.
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2020 (11) TMI 432 - CESTAT NEW DELHI
SSI Exemption - supplies made to merchant exporters against Form 'H' and Form ‘ST-49’ - denial of exemption under Notifications dated March 1, 2002 and March 1, 2003 by treating the supplies made to merchant exporters against Form 'H' and Form ‘ST-49’ as clearances for home consumption - HELD THAT:- The value of branded goods (printed material) cannot also be included in the aggregate value of clearances for the purpose of SSI exemption. The appellant manufactures and clears the printed material for home consumption which do not bear any branded name. The appellant also manufactures printed material which bears the brand name of the buyers. In terms of paragraph 2(vii) of Notifications dated March 1, 2002 and March 1, 2003, one of the conditions for availing SSI exemption is that the aggregate value of clearances of all excisable goods for home consumption does not exceed ₹ 3 Crore (4 Crore w.e.f 01.04.2005) in the preceding financial year. In paragraph 3A, certain categories of clearances have been excluded for determining the aggregate value of clearances under paragraph 2(vii). One such category under clause (b) of paragraph 3A is clearances bearing the brand name or trade name of another person that are ineligible for exemption in terms of paragraph 4. Thus, in terms of paragraph 3A(b) of the Notification, clearances bearing the brand name or trade name of another person are not includible in the aggregate value of clearances for paragraph 2(vii).
There was no violation of the procedure by the appellant and in any case, procedural infraction, if any, cannot to be a ground to deny of substantive benefit of SSI exemption to the appellant.
Extended period of limitation - HELD THAT:- As the benefit of SSI exemption could not have been denied to the appellant, it is not necessary to examine the contention advanced on behalf of the appellant that the extended period of limitation could not have been invoked.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 352 - MADRAS HIGH COURT
Refund of Excise Duty - allegation that the incidence of duty not passed on to the buyer - Revenue submitted that not only the show cause notice clearly refuted the claim of the Assessee to claim such refund, inter alia on the grounds of 12B Presumption, but also on the ground that the Appellant/ Assessee was not entitled to any refund of such Excise Duty - HELD THAT:- The scheme of the Act contained in Section 11B of the Act read with other relevant provisions of the Central Excise Act as it then prevailed before the introduction of GST regime with effect from 1 July 2017, with regard to refunds is very clear viz., that it is only the person who has borne the incidence of Excise Duty, which was not leviable in law is entitled to claim refund of the same, subject to his locus standi and the limitation prescribed in Section 11B of the Act.
There is hardly any doubt on facts in the present case, where, admittedly, the invoice of the appellant for the supply of raw naptha which is a dutiable product, was raised by the appellant M/s.CPCL on its marketing company M/s.IOCL, which is a separate company, who in turn raised invoice on the purchaser or buyer of the said raw naptha M/s.PPN, who in turn, manufactured power by use of such raw naptha and other raw materials. If at all, duty can be said to have been collected in excess on account of over valuation of the supplies, it is the consumer of the said raw material/raw naptha, viz., M/s.PPN who could have claimed the refund of Excise Duty as per the settled legal position. Merely because M/s.IOCL issued a credit note to the buyer M/s.PPN, it cannot be said that the incidence of Excise Duty was not passed on to the purchaser M/s.PPN. Once the incidence of Excise Duty has been passed on, whether it is further passed on to the ultimate buyer or consumer or not, is not the relevant question. The appellant Assessee M/s.CPCL, cannot be said to have borne any incidence of Excise Duty illegally levied and therefore, the right of the appellant Assessee to claim any refund cannot arise.
The question raised before us relates to question of locus standi of the person who is claiming the refund and not on what basis it is claimed. Whether on the basis of Credit Note issued by M/s.IOCL, a refund of Excise Duty could be made or not is not the question, and the claim of the Assessee is not fortified merely because the show cause notice refuted the claim of the Assessee on the basis of credit note alone - The facts are clear and undisputed and there is no material or facts available on record which even prima facie could indicate that the appellant Assessee has borne the incidence of Excise Duty which in law could not be charged from it. The moment it raised the invoice on M/s.IOCL and M/s.IOCL issued Invoice on M/s.PPN, the incidence of Excise Duty is definitely passed on to the buyer or consumer of raw naptha, viz., M/s.PPN. Therefore, the right to claim refund by the Appellant M/s.CPCL is completely lost.
Appeal dismissed.
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2020 (11) TMI 351 - CESTAT KOLKATA
Irregular availment of Cenvat credit - Ineligible inputs - It is the case of the department that the said inputs as claimed to have been received by the appellant assessee in their factory premises on the strength of invoices issued by M/s. Roshanlal Bhagirathmal are not the eligible inputs for the purpose of taking credit in terms of Cenvat Credit Rules, 2004 and Central Excise Rules, 2002, as the same were not purchased from the said dealer - CBIC vide Circular No. 1003/10/2015-CX dated 05.05.2015 - HELD THAT:- From the Circular, it is unambiguously clear that if the invoice issued by the manufacturer contains the details of the Appellant as consignee, they are entitled to Cenvat credit even if the buyer is unregistered.
The Tribunal in HYDRO ELECTRO MACHINERY VERSUS COMMISSIONER OF C. EX., MUMBAI-III [2017 (2) TMI 876 - CESTAT MUMBAI] where it was held that Even if the purchase of the inputs were made by the appellant from an agent of the second stage dealer but duty paying invoices is consigned to the appellant, credit is legally admissible to the appellant.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 350 - CESTAT AHMEDABAD
Clandestine Removal - non-examination of correctness of opening balance and confirmed demand of ₹ 11,22,927/- - imposition of penalty - documents not verified - HELD THAT:- Learned Commissioner (Appeals) has recorded that the appellant has not disputed clandestine removal of the goods but their grievance is about confirmation of the Central Excise duty on the entry as “opening balance” of ₹ 96,77,194/- appearing in duty calculation worksheet. Since, the Commissioner (Appeals) has clearly held that the correctness of ₹ 11,22,927/- and verification of documents related them to be re-examined, therefore, stating that appellant has not disputed clandestine removal is clear contradictory.
The Learned Commissioner (Appeals)’s observation that appellant has not disputed the clandestine removal of goods, needs to be expunged and the remand made by the Commissioner (Appeals) has to be considered as open remand in respect of the total duty remand of ₹ 11,22,927/- - Appeal disposed off.
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2020 (11) TMI 349 - CESTAT CHENNAI
CENVAT Credit - input service or not - Service Tax paid under the head ‘Business Auxiliary Service’ for sales commission paid to their commission agents - credit has been denied alleging that sales agents are directly concerned with sales rather than sales promotion - period September, 2008 to April, 2013 - HELD THAT:- The issue under dispute in this appeal was analysed in COMMISSIONER OF CENTRAL EXCISE, LUDHIANA VERSUS AMBIKA OVERSEAS [2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT], where it was held that learned counsel for the revenue was unable to justify that the claim of cenvat credit by the assessee was erroneous in any manner - Following the said final Order, we are of the considered opinion that the demand cannot sustain.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 283 - MADRAS HIGH COURT
Demand of central excise arrears - Purchase of property in a public auction - whether there was attachment of liabilities and the same was passed along with the property or not? - When the question of recovery comes, there shall be a liability to pay the sum?
HELD THAT:- The respondents 1 to 3 have not exercised the powers conferred under them and seized or attached the goods for which, they have granted exemption of duty. Once there is no charge over the plant or machinery, or other properties, the respondents 1 to 3 will fall under the unsecured creditors and they cannot prevail over the rights of the secured creditor - the transaction between the assesses or licensee and authorities is personal between them. It will not continue unless and otherwise there is a specific condition attached to the same. The auction purchasers cannot be held liable for the arrears incurred by the previous licensee or industry in facour of whom the tax benefits are granted.
In various judgements, the categorical declaration is that the auction purchaser is not liable to pay any arrears, or duty or statutory dues for the default of the previous establishment. The right of the auction purchaser is absolute and independent of all the liabilities of the erstwhile establishment or owner. That transaction is personal, right or interest in personam between those parties will not bind on the auction purchaser - Reliance can be placed in the case of SPECIAL OFFICER, COMMERCE, NORTH EASTERN ELECTRICITY COMPANY OF ORISSA (NESCO) & ANR. VERSUS M/S RAGHUNATH PAPER MILLS PRIVATE LIMITED & ANR. [2012 (11) TMI 406 - SUPREME COURT].
Thus, the notice issues by the respondents 1 to 3 demanding arrears of tax or duty, committed by the previous owner from the petitioner / auction purchaser is without jurisdiction. The auction purchaser need not file an appeal against the notice or demand or order passed by the respondents. Since the notice is without jurisdiction, the writ petition is maintainable without any exhaustion of alternative remedy. It is always open to the respondents 1 to 3 to claim or demand the arrears of duty from the licensee or the beneficiary of the license and not from the writ petitioner who is a third party to that license - demand notices set aside - appeal allowed.
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2020 (11) TMI 282 - CESTAT NEW DELHI
Reversal of CENVAT Credit - common input services used by the appellant for providing both taxable output services and exempted services - non-maintenance of separate records - telephone & mobile services - banking & financial services - C&F agent services - annual maintenance services - legal & professional services - manner of computation of proportionate reversal of credit determined under rule 6(3A) of the Rules - HELD THAT:- It would be clear from a conjoint reading of sub-rule 6(1), (2) and (3) of rule 6 that the total CENVAT credit for the purpose of formula under rule 6(3A) is only total CENVAT credit of common input service and cannot include CENVAT credit on input service exclusively used for the manufacture of dutiable goods - This position is also clear from the underlying object of the amendment made in rule 6(3A) of the Rules by Notification dated March 1, 2016, to consider only common input services and not total input service credit, for the purpose of computing the amount of reversal.
Such amendment was also clarified by the Tax Research Unit Circular dated February 29, 2016 to apply retrospectively in as much as the clarification clearly mentions that the provisions of rule 6 providing for reversal of credit in respect of input services used in exempted services, is being redrafted with the objective to simplify and rationalize the same without altering the established principles of reversal of such credit. It has been further clarified at paragraph (iv) of the Circular that the purpose of the rule is to deny credit of such part of the total credit taken, as is attributable to the exempted services and under no circumstances this part can be greater than the whole credit.
The confirmation of demand, therefore, cannot be sustained - Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 239 - ALLAHABAD HIGH COURT
Clandestine Manufacture and removal - Pan Masala and scented zarda - Release of applicant on Bail - benefit of Section 436-A of Cr.P.C. - HELD THAT:- The applicant evaded the excise duty by procuring the raw material and also not accounting the clandestine and surreptitious production in the statutory books. The clandestinely manufactured goods were supplied in the market without cover of lawful documents.The applicant is the master mind and beneficiary of entire scheme of duty evasion . The applicant had knowingly and willingly made distance in order to create a veil and to escape legal liabilities cast upon him. According to section 9AA of Central Excise Act, every person who at the time, the offence was committed was in charge shall be severally and jointly liable for being prosecuted for the aforesaid offence. There is nothing in the Act that the prosecution depends upon the result of the adjudication. Two proceedings are quite independent . The finding in one is not conclusive in the other proceedings. Both can go on simultaneously and finding in the adjudication proceedings is not binding on the criminal proceedings.A prosecution can be launched even after the completion of adjudication. Since the offence under section 9 (1A) Excise Act is cognizable and nonbailable and is grievous in nature, hence this Court does not deem it congruous to interfere in such matters.
The bail application filed on behalf of the applicant stands rejected.
Whether the benefit of Section 436-A Cr.P.C. can be extended to the applicant to release him on bail merely because he has served half of the maximum sentence prescribed under sections 9, 9AA of the Central Excise Act, 1944? - HELD THAT:- The explanation to Section 436-A Cr.P.C. places a restriction that in case there is a delay in proceeding caused by the accused, the period of detention shall be excluded for granting bail - a person cannot claim as a matter of right to be released on bail merely because he was under detention for half of the maximum sentence prescribed, as when there is lapse on the part of the accused to delay the proceeding, such benefit will not be extended to him.
The applicant is not entitled to the benefit of Section 436-A Cr.P.C. His detention is justified for longer period than he has already undergone. The bail is granted to the applicant - bail rejected.
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2020 (11) TMI 238 - CESTAT CHENNAI
CENVAT Credit - credit on FFC & MTOP - CBEC Instruction F.No. 06/03/2013/CX.1 dated 10.11.2014 - HELD THAT:- The Hon’ble High Court in M/S. INOX AIR PRODUCTS PVT. LTD. (PREVIOUSLY, M/S. INOX AIR PRODUCTS LTD.) VERSUS UNION OF INDIA, COMMISSIONER OF CENTRAL EXCISE, M/S. STEEL AUTHORITY OF INDIA LIMITED [2020 (8) TMI 225 - MADRAS HIGH COURT] has considered the disallowance of credit on MTOP & FFC charges and held that the appellant herein has to be allowed to avail the Cenvat credit of MTOP & FFC charges.
Further, it has to be noted that the appellant has paid Central Excise duty on these charges and therefore, the department cannot deny the credit availed after collecting the excise duty - demand do not sustain - appeal allowed - decided in favor of appellant.
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