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Central Excise - Case Laws
Showing 21 to 40 of 668 Records
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2021 (12) TMI 904 - GAUHATI HIGH COURT
Fixation of special rate of value addition of Central Excise duty - direction to respondents to treat the applications filed by the petitioner in time and to consider the same on merit - HELD THAT:- The Court finds that in the case of M/S JYOTHY LABS LTD. (ERSTWHILE JYOTHY LABORATORIES LTD.) VERSUS UNION OF INDIA AND 2 ORS., PRINCIPAL COMMISSIONER CGST COMMISSIONERATE, ASSTT. COMMISSIONER OF GST AND CENTRAL EXCISE [2021 (8) TMI 726 - GAUHATI HIGH COURT], this Court had categorically held that the requirement of requesting for fixation of a special rate in respect of value addition to the manufactured goods had arisen only after the final judgment of the Supreme Court of India on 22.04.2020. It is seen that by virtue of orders passed by the Supreme Court of India in IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION [2020 (5) TMI 418 - SC ORDER] arising out of the said case, the period of limitation, whether condonable or not stood extended from 15.03.2020 till 02.10.2021 and it was further provided in para-II of the order dated 23.09.2021 in M.A. No. 665/2021 as follows – “II. In cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply.”
Issue notice returnable on 10.01.2022. Extra copies of the writ petition be served on the learned CGC as well as on the learned Standing counsel for the respondent nos. 2 and 3 - List on 10.01.2022.
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2021 (12) TMI 903 - CESTAT AHMEDABAD
Reversal of CENVAT Credit - exempt services or not - input services attributed to LPG manufactured and cleared under PDS under exemption and amount which was paid /reversed is eligible for refund to the respondent - HELD THAT:- The identical issue only for the different period i.e. April 2015- March 2016 came up before this Tribunal and this Tribunal in C.C.E. & S.T. -RAJKOT VERSUS RELIANCE INDUSTRIES LIMITED [2021 (10) TMI 529 - CESTAT AHMEDABAD] dismissed the appeals filed by the revenue holding that respondents is not required to pay any amount under Rule 6(3) in respect of LPG cleared under exemption under PDS. Therefore, the amount paid by the respondent was liable to be refunded to them.
The issue in the above case and the case in hand is absolutely identical and the only difference is of period. Therefore, following the above order, the appeals filed by the revenue are not sustainable.
Appeal dismissed - decided against Revenue.
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2021 (12) TMI 902 - CESTAT AHMEDABAD
Clandestine manufacture and removal - shortage of finished goods or not - relied upon documents for demand not provided, despite written requests - Witnesses neither examined during adjudication nor cross-examination allowed in terms of Section 9D of the Central Excise Act 1944 - time limitation - reconciliation of alleged clearances against GP - discharge of heavy burden to prove their case (by Revenue) - violation of principles of natural justice - HELD THAT:- Both the Authorities could have finally decided the case appropriately as the fact finding authorities on ascertaining the facts and circumstances of the case and appreciation of the evidences on critical analysis of records correctly in order to come to rational inference and conclusion whether Appellants had indulged in the alleged clandestine manufacture and/or clandestine removal of the goods. Accordingly, since the case has reached in this Tribunal, it would also be appropriate to finally decide the case in this Tribunal as the final fact finding authority in the facts and law.
Appellant has contended that Copies of relied upon documents seized on 03.05.2017 have not been provided despite oral and written requests made by Appellant from the date of seizure for such documents. Appellant has also submitted copies of their letters dated 06.09.2018, 10.04.2019, 02.02.2019 and 25.10.2019 in the Company’s Appeal at page Nos. 79 to 83. There is no denial of this fact of non supply of relied upon documents by the Revenue.
There was no clandestine removal of goods against the seized Gate Passes, which are also not provided to Appellants to clarify this aspect further. Charge of clandestine removal without payment of duty is not proved. Duty demand in Show Cause Notice dated 18.12.2019 and confirmed by Order-in-Original dated 04.12.2020 is also not sustainable. The duty demand of ₹ 8,89,640/-based on 61 Gate Passes (GP), in absence of positive corroborative evidences, is also not sustainable under the facts and circumstances of this particular case against the Appellants.
Shortage of finished Decorative Laminates - HELD THAT:- In absence of any such corroborative clinching, positive evidences of excess procurement and use of required Raw materials, packing materials and confirmation from buyers of receipt of such clandestinely removed goods, receipt of sale proceeds etc, and without proper verification of stock of finished goods, the case of clandestine removal is also not proved for demand of ₹ 1,85,994/- - duty demand of ₹ 1,85,994/-is also not sustainable on facts in this case.
Cross-examination of witnesses - HELD THAT:- Original Adjudicating authority has neither examined nor allowed cross-examination of witnesses whose statements are recorded in investigation and relied upon in this case. These are the only evidence relied upon to confirm the demands in facts of this case. It is settled position in law including the decision of the Hon’ble Supreme Court in case of ANDAMAN TIMBER INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II [2015 (10) TMI 442 - SUPREME COURT], that when cross examination of the witnesses is not allowed u/s 9D of Central Excise Act 1944, then, those statements should not be relied upon for fastening the duty/tax liabilities. Hence, cross examination of the witness was mandatory to arrive at correct fact finding in the interest of justice in the facts of this case. There is no other material placed on record by Revenue to justify excise duty demands. Therefore, the duty demand is also not sustainable on this legal ground as well.
Thus, disputed excise duty demands of total Rs, 10,75,634/- (₹ 1,85,994/- + ₹ 8,89,640/-), deserves to be set aside - When the duty demand is not sustained, consequential demands of interest and imposition of penalties on both the Appellants would not survive and the same are set aside - appeal allowed - decided in favor of appellant.
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2021 (12) TMI 901 - CESTAT NEW DELHI
CENVAT Credit - Import of services - Service tax under RCM after audit objections - import of raw material and paid the price for the same by way of Cost + Insurance + Freight (CIF) - appellant received the goods and has shown the receipt in their books of accounts and also other records when the goods are received during the period - HELD THAT:- Neither there is any case of issue of supplementary invoices nor there is any case of fraud, collusion, mis-statement, etc. Under such facts and circumstances, it is held that the appellant is entitled to cenvat credit of service tax of ₹ 1,00,003/- paid under reverse charge mechanism in October, 2018. Further, the appellant is entitled to refund of this amount in terms of Section 142(6) read with 143(3) of the CGST Act.
The appellant is entitled to refund of ₹ 1,00,003/-. The Adjudicating Authority is directed to pay the refund within a period of 45 days from the date of receipt of this order alongwith interest as per Section 11BB of the Central Excise Act - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 846 - CESTAT AHMEDABAD
CENVAT Credit - input services - outward GTA services availed for delivery of goods from factory gate to the buyer’s premises - place of removal - Circular:1065/2018-CX. Dated 08-June-2008 - HELD THAT:- An identical circumstances in appellant’s own case for a different period in SHRI KHEMISATI POLUSACKS PVT. LTD. VERSUS C.C.E. & S.T. -DAMAN [2021 (12) TMI 729 - CESTAT AHMEDABAD] the demand has been set aside and matter was remanded where it was held that the adjudicating authority can go into the facts and if it is found that the contract is of supply is on FOR basis and the ownership of the goods is transferred at the buyer’s premises then the benefit of the credit may be allowed.
The matter is remanded to the original adjudicating authority for afresh adjudication - Appeal allowed by way of remand.
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2021 (12) TMI 790 - CESTAT CHENNAI
CENVAT Credit - input services - transportation of footwear from its Regional Distribution Centres (RDCs) / Corporate Office to their retail outlets - HELD THAT:- In the absence of specific examination of facts, I am unable to endorse the demand being re-confirmed in the impugned orders. When the Hon’ble High Court required re-examination into the facts first, the priority of the Adjudicating Authority should have been to ascertain the facts along with supporting documents, hear the appellant and then arrive at a proper conclusion upon such examination. Further, though there is an observation in the impugned orders that the manufacturing activities would cease as soon as the goods were transported to the RDCs / Corporate Office after manufacturing, but however, there is no supporting evidence placed on this to establish that it is at these RDCs / Corporate Office that the clearance of goods in the form of sale took place. Rather, there is nothing placed on record to indicate the basis for such a conclusion.
Matter remanded back to the file of the Adjudicating Authority, who shall examine the issue afresh - appeal allowed by way of remand.
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2021 (12) TMI 734 - SIKKIM HIGH COURT
Maintainability of petition - availability of efficacious remedy of appeal - section 35 of the Central Excise Act, 1944 - HELD THAT:- List on 25.02.2022.
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2021 (12) TMI 733 - CESTAT MUMBAI
Levy of penalty u/r 26 of the Central Excise Rules, 2002 - clandestine clearance of M.S. ingots - HELD THAT:- The penalty of ₹ 4,00,000/- has been imposed on the company in which the appellant was Director and ₹ 3,00,000/- has been imposed on the appellant - the ends of justice will be met if the penalty imposed on the appellant is reduced from ₹ 3,00,000/- to ₹ 1,00,000/-.
The appeal is partially allowed reducing the penalty imposed on the appellant under Rule 26 of the Central Excise Rules, 2002 from ₹ 3,00,000/- to ₹ 1,00,000/-.
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2021 (12) TMI 729 - CESTAT AHMEDABAD
Reversal of CENVAT Credit - Outward GTA services availed on supplying goods on FOR basis to various clients - place of removal - HELD THAT:- The issue at hand has been decided by this tribunal in the case of M/S ULTRATECH CEMENT LTD. VERSUS C.C.E. KUTCH (GANDHIDHAM) [2019 (2) TMI 1487 - CESTAT AHMEDABAD] where it was held that as the ownership of the goods remained with the Appellants till the goods reached to the customer’s doorstep and the freight charges as well as damage (insurance) to the goods till destination were borne by the Appellant, they are eligible for the credit of service tax paid by them on outward freight.
The appellant have claimed that the facts are identical in the instant case in so far as the goods are delivered on FOR basis and ownership of goods is transferred only on buyers premises - The adjudicating authority can go into the facts and if it is found that the contract is of supply is on FOR basis and the ownership of the goods is transferred at the buyer’s premises then the benefit of the credit may be allowed.
Appeal allowed by way of remand.
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2021 (12) TMI 674 - KERALA HIGH COURT
Maintainability of appeal - pre-deposit under Section 35-F of the Act - appellant submitted that Section 35F of the Act is introduced with effect from 6.8.2014 and that the show cause notice issued to the appellant was much before the said amendment and hence, the amendment under Section 35-F of the Act, being perspective in nature is not applicable to this case and the disposal of the appeal relying on the pre-deposit is illegal and wrong - HELD THAT:- On going through the order of the CESTAT, it is seen that the appeal was disposed of directing the appellant to make the pre-deposit as provided under Section 35-F of the Act before the Commissioner (Appeals) and if the appellant makes the pre-deposit, the Commissioner (Appeals) was directed to decide the appeal on merits. In fact, the order of the CESTAT does not foreclose the appellant's case, but he is given an option to make the pre-deposit before the 1st appellate authority and if the deposit is made, the first appellate authority shall direct to consider the appellant's case on merits.
We fully agree with the order of the CESTAT as it is a mandatory provision that the appellant has to make the pre-deposit as per Section 35F of the Act and only in that case, the appeal need be entertained - the order of the CESTAT is confirmed.
Appeal disposed off.
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2021 (12) TMI 673 - CESTAT KOLKATA
Refund of Additional Excise Duty (AED) - applicability of amended Section 11AB (effective 11 May 2001) on account of an erroneous refund of the AED - period April 2000 to May 2001 - HELD THAT:- Section 11AB was inserted in the statute book only with effect from 28 September 1996. Intention to evade was an essential concomitant under the pre-amended Section 11AB(1), however, the said requirement was done away with under the amended Section 11AB(1). In the instant case, it is an undisputed position clearly forthcoming from the case records that the erroneous refund of ‘AED’ to the respondent was not attributable to any mala fide or intent to evade on the part of the respondent thereby ruling out the applicability of the pre-amended Section 11AB(1).
The Board vide Circular dated 26 June 2002 taking note of the decision of the Hon’ble Supreme Court in the case of MP Tapesrendered in the context of Section 11AB, clarified that the date of passing of the adjudication orders have no bearing in the matter of interpretation of the expression duty become payable or ought to have been paid - the contentions of the revenue as regards passing of the adjudication orders holding the refund as erroneous in February 2002 does not allow them to take recourse to amended Section 11AB(1) in view of the restrictions contained in the amended Section 11AB(2). The proposal in the Notice to recover interest from the date of grant of erroneous refund as evident from the annexure thereof itself militates against the revenue’s contention of the interest liability accruing under the amended Section 11AB basis the date of the adjudication order.
The amended Section 11AB(1) shall apply in the matter of recovery of interest on such erroneous refund in respect of April 2001 and May 2001 and to that extent the ‘OIA’ dated 25 November 2010 deserves to be modified - the alternate contention of the Respondent as regards lack of any substantive provision for recovery of interest in the statute charging ‘AED’, cannot be accepted. The provision of Section 133(3) of the Finance Act, 1999 incorporates by reference, all such provisions of the Central Excise Act in relation to levy and collection of ‘AED’. The expression collection is wide enough to include collection of erroneous refund of ‘AED’.
The Appeal filed by the Revenue is partly allowed.
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2021 (12) TMI 672 - CESTAT AHMEDABAD
Refund of CENVAT Credit - the payment was made with reference to the audit objection - whether the appellant’s payment of Cenvat Credit is attained finality in terms of Section 11A (2) of Central Excise Act, 1944? - HELD THAT:- There was no agreement by the appellant and in the column of department conclusion is that the Jurisdiction Assistant Commissioner/Jurisdiction Range Officer was supposed to issue show cause notice. It is clear that the payment made by the appellant was deemed to be provisional and not final to attract provision of Section 11A (2) of Central Excise Act, 1944.
The appellant have made the payment with reference to the audit objection, however, in the said letter it is not mentioned that the case be settled and show cause notice be waived in terms of Section 11A (2) of Central Excise Act, 1944.
Whether the appellant is required to file appeal with reference to the audit objection and payment made by them? - HELD THAT:- Firstly, the payment made by the appellant was not the final payment hence, the same cannot be a part of the assessment. Secondly, there is no assessment by the department which needs to be challenged. As per the audit proceeding, the department was supposed to issue show cause notice which it failed to do so, therefore, there is no occasion and reason for appellant to file appeal before the Commissioner (Appeals). The only remedy is to claim the refund of such payment made as per the objection raised by the audit. As regard, the judgment relied upon by the appellant it is settled that unless and until the payment along with interest is made by the assessee and the same is intimated specifically in writing to the department, the case cannot be closed under Section11A (2) of Central Excise Act, 1944.
The appellant’s refund needs to be processed in accordance with law - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 671 - CESTAT CHENNAI
Refund of CENVAT Credit - refund claim has been rejected merely stating that the appellant has not availed the credit and carried forward to GST regime by filing TRAN-1 - HELD THAT:- There is no allegation raised by the department that the appellant is not eligible to avail credit of the duties / taxes paid on the inputs / input services. To put it more clearly, the appellant would be eligible to avail the credit but for the introduction of new GST law. It is also explained by the appellant that they are able to avail credit only after they make the full payment to the vendors. The appellants have cleared payments to vendors of the impugned invoices during the period from 5.7.2017 to 4.10.2017. The provisions of CENVAT Credit Rules, as it stood during the disputed period (March to June 2017), allowed the appellant to avail credit within a period of one year. They could not avail the credit only because of the introduction of GST law by which the CENVAT account has ceased to exist.
In the case of ADFERT TECHNOLOGIES PVT. LTD. VERSUS UNION OF INDIA AND ORS. [2019 (11) TMI 282 - PUNJAB AND HARYANA HIGH COURT], it is held that transitional credit being vested right cannot be taken away on procedural or technical ground.
In the present case, the appellant would be eligible to avail credit but for the introduction of GST law. The said right cannot be frustrated by pressing on the procedural requirement of filing TRAN-1 before 27.12.2017. The accounting practice adopted by the appellant allows to avail credit only after making payments to the vendors which has made it impossible to carry forward the credit as set out in the GST law. When the credit is eligible, the same cannot be denied by stating procedural requirements - In PUJAN BUILDERS ENGINEERS & CONTRACTORS VERSUS C.C.E. & S.T. -VADODARA-II [2021 (2) TMI 512 - CESTAT AHMEDABAD], the Tribunal allowed the refund even though initially the credit was carried forward to TRAN-1 and later reversed, after which the claim for refund was filed.
The rejection of refund claim cannot be justified - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 618 - MADRAS HIGH COURT
Sabka Vishwas Legacy Disputes Resolution Scheme, 2019 - petitioner submits that the writ petitioner comes under the category 'Litigation' as appeals were pending as on 30.06.2019 - HELD THAT:- It is deemed appropriate to place on record appreciation of this Court for the fair approach taken by the learned Revenue counsel and the respondents.
The first respondent shall issue a discharge certificate as sought for in the prayer in the writ petition either manually or electronically within eight weeks from today i.e., on or before 21.01.2022 - Petition allowed.
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2021 (12) TMI 617 - CESTAT AHMEDABAD
CENVAT Credit - input services - nexus of input services used in the factory, to the manufacturing process or not - Electrical Maintenance - Maintenance of 66 KVA Power line supplying power to plant - underground water used in utility and used by workmen - Maintenance of computer hardware on shop- floor, AMC charges for desktops, laptops, scanners, etc, used in the factory - AMC charges for datamax (barcode) Printers.
Electrical Maintenance Service - credit denied on the ground that the service is a work contract which is excluded within the ambit of definition of input service - HELD THAT:- This was not the charge either in the show cause notice or finding in the Order-In-Original. From this ground the Learned Commissioner (Appeals) clearly erred in denying the credit. Moreover, this service was used for Electrical Maintenance which is directly related to the manufacturing activity of the appellant, therefore, the credit is admissible.
Maintenance of 66KV power line supplying power to plant - HELD THAT:- The maintenance of 66KV power line supplying power to plant has also direct use in the manufacturing activity of the appellant’s factory hence, the credit is admissible.
Analysis of underground water used in utility and used by workman - HELD THAT:- This activity is to make the underground water usable by the human being. It is obligatory on the part of the manufacturer to provide treated water to their employee, therefore, it is in relation to the manufacture of final product hence, the credit is clearly admissible on this service.
Maintenance of Computer Hardware on shop floor, AMC charges for Desktops, printers, Scanners, Laptop and FM service for resident engineers - HELD THAT:- The service of Maintenance of Computer Hardware on shop floor and AMC charges of various equipments such Desktops, printers and Scanners are for the purpose of manufacturing activity of the appellant and not for the personal use of the resident engineers. Merely because the engineers are resident it was wrongly presumed that all these services are for their personal use. When all the services were used within the premises of the factory it is clear that the said services are used in relation to the manufacture of final product, therefore, the credit is admissible.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 616 - CESTAT CHANDIGARH
Maintainability of appeal - proof of service of adjudication order delivered or not - HELD THAT:- To file appeal before the Commissioner (Appeals), the adjudication order is required to be delivered to the assessee and on receipt of the adjudication order, the assessee has to file appeal within 60 days of receipt of said order, the said period can be extended for another 30 days if the reasons explained by the assessee are found satisfactory. Admittedly, in this case, there is no proof of service of adjudication order on the appellant. In that circumstance, the date on which the appellant has received the adjudication order is the date of receipt of adjudication order i.e. 10.12.2020 and thereafter they filed appeal before the Commissioner (Appeals) on 15.2.2021.
In that circumstance, the appellant has filed appeal before the Commissioner (Appeals) in time, the impugned order deserves no merit and accordingly the same is set aside.
The Commissioner (Appeals) has not dealt with merits of the case, therefore, the matter is remanded back to the Commissioner (Appeals) to decide the issue on merits within 60 days of receipt of this order after affording a reasonable opportunity of hearing to the appellant - Appeal allowed by way of remand.
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2021 (12) TMI 581 - CESTAT AHMEDABAD
CENVAT Credit - input - Coal - denial on the ground that since the appellant has not paid duty at the Central Excise tariff rates and have paid duty less than that, as per Customs Notification No. 12/2012-Cus, appellant are not eligible for Cenvat credit - Time Limitation - HELD THAT:- The appellant have availed Cenvat credit in respect of 2% CVD paid as per Notification No. 12/2012-Cus. Specific bar was provided under Rule 3(1)(i)(a) and (b) for availing Cenvat credit in respect of goods exempted from payment of excise duty under Notification No. 1/2011-CE and 12/2012-CE. However, there is no bar provided in respect of CVD paid under Customs Notification No. 12/2012-Cus. For this reason itself, the Cenvat credit availed by the appellant in respect of CVD cannot be denied - Revenue has disallowed Cenvat credit to the appellants in respect of CVD paid on imported Coal at the rate of 2% in terms of Notification No. 12/2012-Cus dated 17.03.2012. Only on the ground that the appellant have not paid CVD equivalent to the excise duty leviable on the Coal specified under clauses (i), (ii), (iii), (iv), (v), (vi) and (via) and applied clause (vii) of Rule 3 of Cenvat Credit Rules.
Tribunal has considered various decisions given by the different benches and also distinguished the decisions relied upon by the Revenue and concluded that the appellant is entitled for Cenvat credit in respect of 2% CVD paid under Notification No. 12/2012-Cus.
Time Limitation - HELD THAT:- The issue involved is purely of interpretation of Cenvat Credit Rules, levy of CVD in terms of Customs Tariff Act. It is also the fact that on identical issue many cases were made out by the department across the country in respect of different assessees which clearly shows that the issue involved is of interpretation of law. In this situation, malafide intention cannot be attributed to the appellant. The appellant have been declaring availment of Cenvat credit in respect of 2% CVD and the same were reflected in monthly ER-1 returns. Therefore, there is absolutely no suppression of facts or mis-declaration etc. on the part of the appellant. Accordingly, the demand for extended period is not sustainable on the ground of time-bar also.
The appellants are eligible for Cenvat credit in respect of 2% CVD paid under Notification No. 12/2012-Cus. - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 580 - CESTAT AHMEDABAD
CENVAT Credit - input services - credit was availed after one year from the date of issue of invoices - HELD THAT:- There is no dispute that the appellant have availed the cenvat credit after one year from the date of issue of invoices. However, the dates of issue of invoices are undisputedly prior to the amended Rule 4(1) whereby the time limit of six months/ one year form the date of issue of invoices was fixed for availing the cenvat credit. In various judgements, it has been held that when on the date of issue of invoices, the time limit for taking credit was not prescribed, therefore, in respect of those invoices, the subsequent amendment stipulating the time limit for availing the credit shall not apply.
An identical issue has been considered by this Tribunal in VIJAY KUMAR SRIVASTAW AND ALOK MASTERBATCHES LTD VERSUS C.C.E. & S.T. -DAMAN [2021 (4) TMI 804 - CESTAT AHMEDABAD] and held that in respect of invoices issued prior to the amendment, the time limit prescribed in the amended Rule 4(1) and 4(7) shall not apply.
In respect of invoices issued prior to the amendment, the time limit prescribed in the amended Rule 4(1) and 4(7) shall not apply - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 579 - CESTAT AHMEDABAD
Levy of Special Excise duty - Air Conditioners and parts thereof falling under Chapter 8415 of Central Excise Tariff Act, 1985 - case of the department is that the goods which have been cleared by the appellant are having essential characteristic of complete air conditioner therefore, is liable to special excise duty - HELD THAT:- The issue in the appellant’s own case has been settled vide this tribunal’s Order in SEAGULL COOLING PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, VAPI [2006 (8) TMI 466 - CESTAT, MUMBAI], the said decision was given considering the board circular dated 25.9.2002. where it was held that entities by apparent description and application of Boards instruction by themselves cannot be considered to be a complete Air Conditioner or have essential character of Air Conditioner to classify them as other than parts. No duty demands can be worked out on such.
Thus, it is clear that the assembly which were cleared by the appellant were not contained either one or more items specified in the board circular. Therefore, if this is correct then the goods cleared by the appellant do not have essential characteristic of complete air conditioner therefore, the same shall not be liable for levy of special excise duty.
On going through the impugned order, it is found that the learned adjudicating authority has not discussed about the nature of the assembly cleared by the appellant that whether the assemblies have contained all the six items mentioned in the board circular or otherwise which was claimed by the appellant therefore, the matter needs to be reconsidered only on the point that whether the goods cleared by the appellant contains all the six items mentioned in the board circular or otherwise. If it is found that if one or more items specified in the board circular is absent in the assembly supplied by the appellant, the same shall not be considered as complete air conditioner whereas, the goods shall be considered as parts of air conditioner accordingly, there shall not be any levy of special excise duty.
Appeal allowed by way of remand.
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2021 (12) TMI 578 - CESTAT AHMEDABAD
CENVAT Credit - input services - GTA Services - denial on the sole ground that the appellant have not supplied the CAS4 Certificate to ascertain the cost of product - inclusion of freight element in assessable value or not - HELD THAT:- The sale of the goods is on Principle to Principle basis. As per Section 4 of the Central Excise Act, 1944 the transaction value at which the goods are sold has to be taken for the purpose of assessment. In case of the value arrived at, as per Section 4(1)(a) no question can be raised. Moreover, in the facts of the present case the freight is deemed to have been included in the assessable value and on such assessable value excise duty was charged which is evident from the sale invoice which shows that the appellant have not collected the freight separately from the customer. The freight charge was borne by the appellant themselves. In this case the transaction should be considered as FOR sale and accordingly, the buyer’s place shall become place of removal as all the expenses up to the delivery of the goods at the buyer’s place was borne by the appellant.
It can be seen in the case of M/S. SALASAR COPPER VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, DAMAN [2019 (4) TMI 11 - CESTAT AHMEDABAD] that on the basis of CA Certificates produced by the appellant regarding the nature of sale i.e. FOR Sale and also the inclusion of freight charge, this tribunal has taken a view that appellant is entitle for Cenvat Credit - In the present case also there is no dispute that the appellant have produced the CA Certificate wherein, it was certified that the sale is on FOR Basis and the freight is included in the sale value accordingly, the facts of the present case as well as the case cited are identical.
Appeal allowed - decided in favor of appellant.
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