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Central Excise - Case Laws
Showing 1 to 20 of 44 Records
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2021 (5) TMI 931
Refund / Recovery of alleged excess amount of the money refunded earlier to the petitioner towards excise duties - case of petitioner is that though the petitioner is entitled to special rate to get these benefits and applied for finalizing the same, the authorities have not considered the same despite repeated representations submitted in that regard - HELD THAT:- It is directed that the respondent No.2, i.e., Commissioner, Central Goods and Service Tax, Guwahati shall dispose of the representations submitted by the petitioner including the one dated 27.01.2021 for fixation of special rate within four weeks from the date of receipt of a certified copy of this order. It is also directed that till such decision is taken by the authorities on consideration of the representation(s) submitted by the petitioner, the authorities shall not take any coercive action against the petitioner pursuant to the demand notice dated 01.01.2021 challenged in this writ petition.
This Court would make it clear that any such repayment in instalments may be made by the petitioner after disposal of the representation submitted by the petitioner in the manner directed above and if there be any amount to be refunded, the same be refunded in equal instalments as indicated in the aforesaid letter dated 29.01.2021 - List along with WP(C) No.2841/2021 on 14.07.2021.
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2021 (5) TMI 930
Refund of alleged excess amount of the money refunded earlier to the petitioner towards excise duties - HELD THAT:- It is directed that the respondent No.2, i.e., Commissioner, Central Goods and Service Tax, Guwahati shall dispose of the representations submitted by the petitioner including the one dated 05.02.2021 for fixation of special rate within four weeks from the date of receipt of a certified copy of this order. It is also directed that till such decision is taken by the authorities on consideration of the representation(s) submitted by the petitioner, the authorities shall not take any coercive action against the petitioner pursuant to the demand notice dated 01.01.2021 challenged in this writ petition.
List along with WP(C) No.2566/2021 on 14.07.2021.
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2021 (5) TMI 907
Interest is demanded on account of delayed payment of duty - supplementary invoice during the period 2009-10 for the period 2008-09 to 2010-11 - Penalty - Time Limitation - HELD THAT:- In this case, it is a fact of record that the appellant did not pay interest for the intervening period when they issued supplementary invoices for duty paid thereon. It is also a fact on record that thereafter an audit took place in January-February 2012 for the period 2008-10 and asked the appellant to make the payment of interest for the intervening period, but the appellant did not comply with the said direction. Thereafter, the Revenue was sleeping for more than 3 years and on the morning of 3rd September 2015, a show cause notice was issued to demand interest for the intervening period by invoking extended period of limitation. As it was in the knowledge of the Revenue that the appellant has not paid the interest very well in January-February 2012 despite direction, but no show cause notice was issued to the appellant within one year from the said period. In these circumstances, the show cause notice issued on 03.09.2015 is barred by limitation.
The demand of interest is not sustainable - no penalty can be imposed on the appellant - Appeal allowed - decided in favor of appellant.
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2021 (5) TMI 906
CENVAT Credit - CENVAT Credit - Input service distribution (ISD) - input service is attributed to the goods on which excise duty is paid includes the cost of services on which credit was taken - Issuance of Input Service Distributors’ invoice by Parle to its contract manufacturing unit - contract manufacturing is carried out in terms of notification No. 36/2001-CE (NT) - HELD THAT:- The appellant accepted the authorization and agreed to discharge all liabilities under the Excise Act and Rules made thereunder in respect of the goods manufactured from time to time by the appellant on behalf of Parle. The terms and conditions also stipulate that the appellant would work as a job worker for manufacture of “Biscuits” for Parle and that Parle would arrange to send the raw materials and packing materials to the appellant on payment of Central Excise duty and that the appellant would avail CENVAT credit of Excise duty paid on the raw and packing materials and capital goods. It also provides that the appellant would made excise invoice/stock, Transfer Notes to Depots or Wholesalers of Parle and would pay Excise duty on the assessable value as shown in the invoice of Parle - It is in terms of the CENVAT Rules, the Registration Exemption Notification and the aforesaid authorization that it has to be determined whether input service credit is available to the appellant even prior to 01.04.2016.
The Constitution Bench of the Supreme Court in COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS. [2018 (7) TMI 1826 - SUPREME COURT] was constituted to examine what would be the interpretative rule to be applied while interpreting a tax exemption provision/ notification when there is an ambiguity as to its applicability with reference to the entitlement of the assessee or the rate of tax to be applied. The Supreme Court observed that the core issue to be examined in the event of any ambiguity in an exemption notification is whether the benefit of such an ambiguity should go to the assessee or should be considered in favour of the revenue by denying the benefit of the exemption to the assessee.
CENVAT is a beneficial scheme with the stated purpose of allowing CENVAT credit of all taxes paid on inputs and services so as to avoid cascading effect of taxes and duties - even in terms of the provisions of rule 2(m) and rule 7 of the CENVAT Rules, as they stood prior to 01.04.2016, the appellant could distribute CENVAT credit in respect of the service tax paid on inputs services to its manufacturing units, including a job workers.
Parle was justified in distributing credits on input services attributable to the final product on a pro-rata basis proportionate to the turnover of each unit between the manufacturing plants of Parle and its contract manufacturing units, including the appellant, under rule 7(d) of the CENVAT Rules.
It would not be necessary to answer the issue that whether the appellant would, irrespective of the answer to the first issue, be entitled to avail CENVAT credit when input service is attributed to the goods on which excise duty is paid and includes the cost of services on which credit was taken.
The matter may now be placed before the Division Bench for disposal of the appeal.
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2021 (5) TMI 903
Grant of interest on delayed refund - relevant time for calculation of interest - annual production capacity under Compound Levy Scheme was fixed - HELD THAT:- The appellant filed the refund claim on 14.09.2005. The said application was kept pending by the Revenue and the same was not entertained. It was entertained only after the adjudication order on 31.10.2008 and the amount of refund was adjusted against the demand raised by order dt. 17.10.2008. Again, the litigation continued and finally this Tribunal hold that the said demand is not sustainable and remanded the matter back to the adjudicating authority for fresh adjudication.
In terms of the decision of the Hon’ble Apex Court in the case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [2011 (10) TMI 16 - SUPREME COURT], wherein the Apex Court has held that if the assessee filed the refund claim is entitled to claim the interest on delayed refund after three months from the date of filing of the refund claim although there is a litigation in the matter.
In the present case, it is apparent on record that the said refund was sanctioned but was adjusted against the demand which was not sustained - the appellant is entitled to claim interest after three months from the date of filing of the refund claim i.e., after 3 months of date of filing the refund claim i.e., 14.09.2005 till its realization.
Appeal allowed - decided in favor of appellant.
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2021 (5) TMI 899
EOU - Clearance of goods in DTA - manufacture and export of ‘Ceramic Colours/Pigments, falling under CETA 32071040 - It was alleged by the Department that the items cleared in DTA by the appellants were not similar to the goods exported and there was violation of the provisions of Para 6.8 of FTP - benefit of N/N. 23/2003-CE dated 31.03.2003 - Extended period of limitation - similarity of goods, exported by the appellant - HELD THAT:- Various judgments have given wider meaning to the word ’Similar’. It would mean similar, same class of or same kind of goods. In the instant case, the goods exported and the goods cleared are described as ceramic colours. In view of the ratio of the various judgements cited, there is not even an iota of doubt that the goods cleared by the appellant in DTA are nothing but the goods which are similar to the goods exported well within the meaning assigned to the same in paragraph 6.8 of FTP. It has been demonstrated that the manufacturing activity is same for both type of colours. The similarity of the goods is established beyond reasonable doubt by the test report got conducted on the impugned goods for the subsequent period and relied upon, as is evident from the Order-in-Original, dated 31.12.2012 (adjudicating the SCN issued for the period Feb 2011 to Jan 2012).
The facts of the case here are in a narrower compass compared to the cases discussed as above, the difference in goods only being that of concentrated or diluted. Both of them are named ceramic colours only. Test reports indicated that they have similar composition as rightly held by the Learned Commissioner for the subsequent period. Therefore, there is no doubt that the goods exported and the goods cleared by the appellants are similar in terms of Para 6.8 of FTP. Moreover, the fact that Development Commissioner has issued permission is not denied - In view of the judgement in COMMISSIONER OF C. EX., HYDERABAD VERSUS NOVAPAN INDUSTRIES LTD. [2007 (1) TMI 5 - SUPREME COURT], the Order-In-Original should hold good for the earlier period also. It is pertinent to note that the department did not bring forth any change in the circumstances or the quality of the goods exported and cleared in DTA by the appellant. The department has wrongly tried to differentiate between the goods on the basis of physical characteristics or the price of the same.
Thus, the department has wrongly tried to differentiate between the goods on the basis of physical characteristics or the price of the same.
Time Limitation - HELD THAT:- The permission given by the Development Commissioner would certainly indicate the products which are to be exported and cleared in DTA. When the description is ceramic colours, in both export as well as DTA clearance documents, the department was within their rights to call for clarification from the Development Commissioner or the appellants so as to satisfy themselves. This having not been done, it is not open for the department to invoke extended period, alleging that the appellants have suppressed some information, after considerable lapse of time. No suppression, leave alone intent evade duty has been established - the goods cleared in DTA by the appellants in DTA are similar to those exported and that there are no violations provisions of either paragraph 6.8 of FTP or Central Excise notification 23/2003, the appeal survives on merits - the issue of limitation will be inconsequential.
Appeal allowed - decided in favor of appellant.
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2021 (5) TMI 888
Recovery of Refund of 50% of amount of CGST with interest and penalty - benefits under the Northeast Industrial Policy - HELD THAT:- Let a notice of motion returnable on 19.05.2021 be issued.
As the learned Standing counsel for the respondents has accepted notice extra copy of the writ petition be provided within 2(two) days - List the matter on 19.05.2021.
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2021 (5) TMI 880
CENVAT Credit - input services - services received by the appellant in the capacity of employer for providing food and beverages in the canteen maintained and run in the factory as per the mandate of Section 46 of the Factories Act, 1948 - HELD THAT:- In the present case the undisputed facts reveal that the orders passed by the authorities, appellate authority and the Tribunal are based upon the amendment which came into force from 1.4.2011 - The undisputed facts make it very clear that the period involved in the present appeal is admittedly of post 2011 period and after the amendment to the provisions of Rule 2(l) defining the ‘input service’ and the amendment to the provision of Rule 2(l) defining the ‘input service’ came into effect w.e.f., 1.4.2011. The definition of ‘input service’ post amendment contains exclusion clause and exclusion clause was effected w.e.f., 1.4.2011. Clause (c) of the said exclusion clause specifically excludes the services provided in relation to ‘outdoor catering’ services. It is certainly not in dispute that said services prior to 1.4.2011 have been held to be covered by the definition of ‘input service’, however, after the amendment came into force in the light of specific exclusion clause, ‘outdoor catering’ service is not at all covered under the definition of ‘input service’.
A Taxing Statute has to be interpreted in the light of what is clearly expressed, it cannot imply anything which is not expressed, it cannot merge provisions in the statute so as to supply any assumed deficiencies - Appeal dismissed.
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2021 (5) TMI 870
Quantum of interest on refund - grant of interest at 12% instead of 6% - time limitation for calculation of interest - appellant sought that the interest should be calculated from the date of deposit of the amount - HELD THAT:- In the present case, the provisions of section 11B of the Excise Act would not be applicable. This is for the reason that the appellant was not claiming refund of duty. The applicant, as noticed above, had claimed refund of the revenue deposit. Such a finding has also been clearly recorded by the Tribunal in the order dated 31.01.2017, which order has attained finality - There is no provision in the Excise Act, which deals with refund of revenue deposit and so rate of interest has not been prescribed, when revenue deposit is required to be refunded.
In RIBA TEXTILES LTD VERSUS COMMISSIONER OF CE & ST, PANCHKULA [2020 (2) TMI 602 - CESTAT CHANDIGARH], the Tribunal also granted interest at the rate of 12% on refund of amount deposited during investigation and at the time of entertaining the stay application - the rate of interest varies from 6% to 18% in the aforesaid Notifications issued under sections 11AA, 11BB, 11DD and 11AB of the Excise Act, the grant of interest @12% per annum seems to be appropriate.
Appeal allowed - decided in favor of appellant.
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2021 (5) TMI 868
Refund of Excise duty paid under protest - method of valuation of physician samples - refund application filed by the appellant was rejected by placing reliance upon the Circular dated 25.04.2005 that prescribed for payment of duty under rule 4 of the Valuation Rules - appellant followed the practice of valuation of physician samples on cost of production + 10% profit and also enclosed therewith a list of products cleared on assessable value (cost+10%) - Section 11A of the Excise Act - HELD THAT:- In the present case, the appellant only deposited an amount of ₹ 43,57,437 /- under protest but specifically stated that it was not accepting the contention of the department that it was required to pay differential duty from 25.04.2005 to 30.09.2006. It cannot, therefore, be urged that the appellant had deposited any amount under sub-section (1)(b) of section 11A of the Excise Act, in which case only notice was not required to be served on the appellant - it was obligatory on the part of Central Excise Officer to have issued a notice to the appellant for payment of the short paid amount of duty and, thereafter, adjudicate upon it. In the present case, however, the amount deposited by the appellant under protest has been appropriated towards differential excise duty without issuance of any notice contemplated under section 11A of the Excise Act.
It has now to be seen whether an amount of ₹ 14,38,359 /- could have been appropriated as interest for alleged late payment of the amount of ₹ 43,57,427/-, which was deposited under protest (from rebates claimed and sanctioned to the appellant) - In the first instance, when the order rejecting the refund claim filed by the appellant has been set aside and the appellant is entitled to the refund amount, there is no reason as to why the appellant should be asked to pay any interest for the alleged delay in deposit of said the amount. Secondly, no notice was issued to the appellant for deposit of this interest amount. In the absence of any notice having been issued demanding this amount, for the reasons stated above, the amount could not have been appropriated.
The appellant would be entitled to refund of ₹ 43,57,427 /- claimed in the application filed on 05.11.2008. The order for appropriation of ₹ 14,38,359/- towards interest, as confirmed by the Commissioner(Appeals) by order dated 16.08.2018, is also set aside - appeal allowed - decided in favor of appellant.
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2021 (5) TMI 852
Levy of Interest - carry forward of excess credit - penalty - the amount was reversed on being pointed out - time limitation of paying interest - HELD THAT:- Admittedly there was mistake on the part of the Appellant in carrying forward in their Books of Accounts the closing balance of CENVAT credit for the month of August 2008, while switching from ERP to SAP system w.e.f 01/09/2008, in the opening balance for the month of Sep. 2008. When such mistake was pointed out by the audit team while scrutiny of their records in Sep. 2009, the Appellant immediately reversed the entire credit on 10/09/2009 accepting the lapse on their part but failed to pay applicable interest on the excess credit availed - In the present case, the Appellant reversed the credit in September 2009 but since failed to discharge the interest of the same, consequently, within a period of one year, the interest was demanded from the Appellant by issuing a notice to the Appellant. Hence, the demand for interest is not barred by limitation.
Levy of penalty equivalent to the amount of Cenvat Credit reversed - HELD THAT:- It is not warranted in the facts of the circumstances of the present case as it was a bona fide mistake of carrying forward excess credit as on 01/09/2008 on account of switching over from ERP to SAP system. There is no other allegation or evidence brought on record by the revenue that intentionally and purposefully the Appellant had shown wrong opening balance thereby continued to enjoy excess credit for a period of time till it is pointed out by the audit. Therefore, imposition of penalty equal to the amount of credit availed cannot be sustained.
Appeal allowed in part.
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2021 (5) TMI 849
CENVAT Credit - capital goods - capital goods were not received into the factory - Penalty - HELD THAT:- On perusal of the final order dated 20-5-2011, the Tribunal has directed officers to visit the assessee’s factory and satisfy themselves as to the availability of the Spectrometer in question. After such verification, it is seen noted in the de novo adjudication order that the capital goods were present in the factory. Thus the allegations raised in the Show Cause Notice that the capital goods were not received in the factory and that the credit availed is wrong is without any factual basis. Further, it can also be seen that the appellant had challenged before the Tribunal the allegation of wrong availment of credit and submitted only that they would not be seeking re-credit of the same for the reason that they had already surrendered the registration of the factory. The authorities below have confirmed the interest on the basis that the appellant has not challenged the demand of wrongfully availed credit.
The allegation in the Show Cause Notice is that the assessee did not bring the machine into the factory and suppressed the purchase and receipt of the machine in their factory for which the Show Cause Notice was issued. This allegation is now proved to be wrong after the verification by the Range Officer. In such circumstances, allegation of wrong availment of credit cannot sustain and therefore, the interest thereon also would not sustain. The penalty has already been set aside by the authorities below.
The demand of interest by the department alleging wrong availment of credit cannot sustain - Appeal allowed - decided in favor of appellant.
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2021 (5) TMI 838
CENVAT Credit - inputs - welding electrodes - denial on the ground that the welding electrodes used in the maintenance of plant and machinery cannot be called as inputs used in the manufacture of their final products - Penalty - HELD THAT:- A perusal of the SCN shows that the actual period in respect of the disputed CENVAT is April 2013 to March 2014. The period is significant since the definition of ‘input’ under CENVAT Credit Rules, 2004 was changed with effect from 1.3.2011 and this amended definition is relevant for the period of dispute.
Penalty - HELD THAT:- There is no dispute that the welding electrodes were used in the factory of the manufacturer as they were used to maintain the machinery. Therefore, they are squarely covered by the definition of ‘input’ under Rule 2(k). Unlike the definition of input prior to 1.3.2011, for something to qualify as an input, it need not be used in or in relation to manufacture of the final product but it only needs to be used within the factory of the manufacturer. There is no dispute that the welding electrodes have been so used. CENVAT credit can therefore, not be denied. Consequently, the penalty also cannot be imposed.
The impugned order dated 16.02.2018 passed by the Commissioner (Appeals) denying the CENVAT credit and upholding the penalty is contrary to law and cannot be sustained - Appeal allowed - decided in favor of appellant.
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2021 (5) TMI 812
Refund of Excise duty - fixation of the special rate as per para 2.1(1) of the N/N. 20/2008 Central Excise dated 27.03.2008 - HELD THAT:- The present petition is disposed of directing the respondent No.2, Principal Commissioner, Central Goods & Service Tax, Guwahati to consider the aforesaid applications submitted by the petitioner in accordance with law and till such consideration, no coercive action be taken against the petitioner in terms of the demand notice dated 22.03.2021.
Petition disposed off.
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2021 (5) TMI 804
Reversal of CENVAT Credit - Capital Goods - Lease back of sold out capital goods - Deemed removal of goods from the factory premises of the petitioner - core contention of the petitioner's counsel is that the Central Excise Act does not contemplate any deemed removal - HELD THAT:- Circular No.1063/2/2018-CX, dated 16.02.2018, issued by the Central Board of Excise and Customs, in which, it has been stated that the Department has accepted the aforesaid decision of the Madras High Court. The contention of the petitioner's counsel is that the respondent is squarely bound by the decision rendered by the Madras High Court. It is not open to the respondent to disregard the aforesaid binding decision rendered by the Division Bench in M/s.Dalmia Cements Case [2015 (7) TMI 267 - MADRAS HIGH COURT]. More over, the Central Board of Excise and Customs has mandated that the adjudicating authority shall decide the cases falling within their jurisdiction in that light.
The order impugned in the writ petition is quashed. The matter is remitted to the file of the respondent. The respondent will bear in mind the Circular No. 1063/2/2018-CX dated 16.02.2018 issued by the Central Board of Excise and Customs, while deciding the issue - Petition allowed by way of remand.
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2021 (5) TMI 771
Delay in conclusion of adjudication - Recovery of dues - recovery of deficit in payment of excise duty etc. on the ground of 11 years' delay in adjudication till now - HELD THAT:- Similar issue was considered by Gujarat High Court in SIDDHI VINAYAK SYNTEX PVT LTD. VERSUS VERSUS UNION OF INDIA & 2 [2017 (3) TMI 1534 - GUJARAT HIGH COURT]. Judgments of different High Courts were referred to and it was summed up that delay in conclusion of proceedings pursuant to show cause notices after a long gap without proper explanation, is unlawful and arbitrary. The Court further examined the fact as to whether transfer of proceedings to call book in view of circular dated 14.12.1995 can be said to be a reasonable explanation. The opinion expressed was that the mandate of law cannot be diluted by issuing circular especially when there is no power to issue such directions regarding transfer of cases to call book.
The impugned show cause notices having been issued long back more than a decade are not sustainable in the eyes of law, and thus, deserve to be quashed - petition allowed.
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2021 (5) TMI 741
Challenge to the Show cause notice (MTC) - CENVAT Credit - transportation charges incurred in transportation of its products from its factories / depots to the customer places - place of removal - extended period of limitation - HELD THAT:- After analyzing the materials on record and statements of various officers of the petitioner which were recorded during investigation, it has been observed that CENVAT credit on input services is eligible for outward transportation upto the place of removal. Assessee was not eligible for taking CENVAT credit on the service tax paid on transportation charges incurred for transportation of goods from depots and factories to the place of the customers i.e., beyond the place of removal. Referring to the amendment, it is contended that it is only upto the place of removal that any service appears to have been treated as input service for allowing CENVAT credit thereon. Post amendment, the benefit which was admissible earlier even beyond the place of removal would now get terminated at the place of removal. CENVAT credit cannot travel beyond the point of removal.
It would be more appropriate if petitioner responds to the impugned show cause-cum-demand notice by filing reply and thereafter if respondent No.3 is not satisfied with the show cause reply, the matter may be adjudicated by the adjudicating authority - Petition dismissed.
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2021 (5) TMI 738
Grant of interest on refund amount - relevant time for calculation of interest - calculation of interest after expiry of three months from the respective dates of application till the date of actual refund under section 11BB of the Central Excise Act, 1944 read with section 83 of the Finance Act, 1994 - HELD THAT:- Sub-section (1) of section 11B says that any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and in such manner as may be prescribed. The application shall be accompanied by documentary and other evidence in support of the claim. Sub-section (2) of section 11B provides that upon receipt of any such application if the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty by the applicant is refundable, he may make an order accordingly whereafter the amount is to be refunded.
From a reading of section 11BB, it is evident that if any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) of section 11B, there shall be paid to that applicant interest at such rate which is not below 5% and not above 30% per annum as may be fixed by the central government, by notification in the Official Gazette. The interest will be calculated for the period commencing from the date immediately after expiry of three months from the date of receipt of such application till the date of refund of such duty.
Petitioner would be entitled to interest under section 11BB of the Central Excise Act, 1944 on the amounts refunded to it. Respondent Nos.2 and 3 shall work out the interest amount payable to the petitioner in respect of the refund claims for the relevant periods which shall be paid to the petitioner within three months from the date of receipt of a copy of this judgment and order - Petition allowed.
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2021 (5) TMI 676
CENVAT Credit - input service - sales commission - HELD THAT:- The sales commission is directly attributable to sales of the products. Any activity which amounts to sale of the products is deemed to be sales promotion activity in the normal trade parlance - If there is no sale, there would not be any need to manufacture the products. Be that so as it may, to increase the manufacturing activity an encouragement is being given by way of sales commission for achieving increased sales.
Hon’ble High Court of Punjab & Haryana in the case of COMMISSIONER OF CENTRAL EXCISE, LUDHIANA VERSUS AMBIKA OVERSEAS [2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT], had clearly held that the sale and manufacture are directed inter-related and the commission paid on sales needs to be accounted for as services related to sales promotion.
The impugned order cannot be sustained and is, therefore, set aside - Appeal allowed - decided in favor of appellant.
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2021 (5) TMI 675
Seeking for special rate fixation on the ground of delay - HELD THAT:- The issue raised in this writ petition requires further hearing and accordingly let notice be issued. Mr. Keyal accepts notices on behalf of respondent Nos. 1 to 4. Mr. SS Roy accepts notice on behalf of respondent No. 1. Necessary extra copies be served on the learned counsel. The petitioner shall take steps on the rest of the respondents within a period of one week from today by way of registered post with A/D.
Notices are made returnable after four weeks.
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