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Central Excise - Case Laws
Showing 41 to 60 of 668 Records
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2021 (12) TMI 525 - CESTAT AHMEDABAD
Refund for the 100% payment of duty made under N/N. 39/01-CE from PLA or to the extent of 75% in terms of amended N/N. 16/08-CE and 36/08-CE - HELD THAT:- The appellant have not filed any appeal against the rejection of refund of differential basic excise duty consequently the Learned Commissioner (Appeals) has not given any finding. The appellant have filed the appeal before Commissioner (Appeals) exclusively in respect of Education Cess and Secondary Higher Education Cess which has been allowed, therefore, there is nothing left in the impugned order to challenge before this Tribunal. Hence the appeal is not maintainable on this ground itself.
The Hon’ble Supreme Court in the case of UNION OF INDIA & ANOTHER ETC. ETC. VERSUS M/S V.V.F LIMITED & ANOTHER ETC. ETC. [2020 (4) TMI 669 - SUPREME COURT] held that the amemdment Notification whereby the refund was restricted to 75% is valid and legal, therefore, the appellant is entitled for the refund in respect of Basic Excise Duty only to the extent of percentage prescribed therein and not for the full amount of duty paid from PLA.
The appellant is not entitled for the refund of differential basic excise duty - Appeal dismissed.
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2021 (12) TMI 480 - KERALA HIGH COURT
Maintainability of appeal - non-compliance with the mandate of pre-deposit - Section 35-F of the Act - HELD THAT:- As per sub-clause (1) to Section 35-F, it is made mandatory that the Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal if the appellant has not deposited 7½ per cent of the duty demanded or 10% of the duty, as the case may be. If the deposit is not made by the appellant as mandated in the said section, the Commissioner or the Tribunal is justified in dismissing the same in limine. In this case, admittedly, the appellant has not remitted the pre-deposit as stated in Section 35-F of the Act.
Even though the order of the CESTAT is sustained, the appellant is granted three months time from today to comply with the condition of payment as mandated under Section 35F of the Act - Appeal disposed off.
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2021 (12) TMI 479 - BOMBAY HIGH COURT
Effect of superceded notification - Whether the Customs, Central Excise and Service Tax Appellate Tribunal ought to have followed its own decision in Mahindra Engineering Services Ltd. vs. Commissioner of Central Excise, Pune-I [2015 (1) TMI 457 - CESTAT MUMBAI] especially when the same was after considering the effect of Notification No.9/2009 which now has been superceded by Notification No.12/2013 which is applicable in the facts of the present case? - HELD THAT:- The Tribunal in M/S MAHINDRA ENGINEERING SERVICE LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-I [2015 (1) TMI 457 - CESTAT MUMBAI] while considering the effect of Notification No.09/2009 held that said Notification did not require the approval from the Approval Committee to be obtained prior to providing the services in question. It also noted that the refund claimed therein had been filed after approval was granted by the Approval Committee. This was held to be sufficient compliance with the requirements of Notification No.09/2009. The appellant before the Tribunal had also raised a contention that the conditions of Notification No.09/2009 were similar to the conditions in Notification No.12/2013.
The impugned order of the Tribunal does not consider the latter contention raised by the appellant for if that contention were to be accepted by the Tribunal, it either ought to have followed its earlier view in Mahindra Engineering Services Ltd. [2015 (1) TMI 457 - CESTAT MUMBAI] or if it was not inclined to do so, it ought to have referred the question to a larger bench as held in Mercedes Benz (India) Pvt. Ltd. [2010 (3) TMI 300 - BOMBAY HIGH COURT]. Even otherwise we find that merely because a particular argument was not raised when the earlier proceedings were decided would not be a sufficient ground to disregard an earlier adjudication made on merits.
Re-consideration of the proceedings by the Tribunal is warranted - proceedings are remanded to the Tribunal to decide the appeal afresh on its own merits and in accordance with law - Appeal allowed by way of remand.
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2021 (12) TMI 478 - MADRAS HIGH COURT
Levy of penalty u/r 26 on the Appellant/Managing Director of the assessee - Whether the Tribunal is correct in holding that Fatty Acid, Waxes, Soap Stock, Spent Earth and Gum generated during the processing of Refined Oil are waste and cannot be subjected to Central Excise Duty? - HELD THAT:- The Tribunal referred to the decision of the Lager Bench of the Tribunal in the case of M/S RICELA HEALTH FOODS LTD., M/S J.V.L. AGRO INDUSTRIAL LTD., M/S KISSAN FATS LIMITED VERSUS CCE, CHANDIGARH, ALLAHABAD [2018 (2) TMI 1395 - CESTAT NEW DELHI] where it was held the removal of unwanted materials resulting in products like gums, waxes and fatty acid with odour cannot be called as a process of manufacture of these gums, waxes and fatty acid with odour. The process of manufacture is for refined rice bran oil. and allowed the appeals filed by the assessees.
Correctness of the order passed by the Tribunal setting aside the penalty on the company and the Directors - HELD THAT:- These appeals have been preferred under Section 35G of the Central Excise Act, 1944. In terms of sub-section (1) of Section 35G, an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment, if the High Court is satisfied that the case involves a substantial question of law.
The appeals are dismissed as not maintainable giving liberty to the appellant/Revenue to file an appeal before the Hon'ble Supreme Court.
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2021 (12) TMI 427 - BOMBAY HIGH COURT
Time Limitation - suppression of fact of manufacture and clearance of excisable goods - exemption Notification No.74/1993 dated 28.2.1993 - HELD THAT:- The facts on record indicate that prior to 1996 the appellant was engaged in the manufacture of gates and hoists that were supplied to the Irrigation Department. By virtue of exemption Notification No.74/1993 dated 28.2.1993 the goods falling under the heading 73 and 84 of the Schedule were exempted from payment of central excise duty. On 1.4.1986 the Corporation came to be established and it is thereafter that the demand of central excise duty from 1997-1998 to 1999-2000 came to be raised by issuing show cause notice dated 30.3.2001. In the show cause notice it has been stated that the appellant suppressed the fact of manufacture and clearance of excisable goods with a view to evade payment of central excise duty.
In view of the fact that the appellant had not obtained necessary registration, the Directorate found it sufficient to invoke the proviso to Section 11A(1) of the said Act.
When the material on record is perused it becomes clear that in the reply to the show cause notice itself the appellant had stated that in view of exemption Notification No.74/1993 which was applicable to it till 31.3.1996, the appellant was not aware of the procedure as regards charging and paying excise duty. It became a statutory Corporation and there was no intention to evade the payment of central excise duty in any manner whatsoever. While admitting that it was liable to pay central excise duty it was stated that the penalty or interest may not be imposed upon the appellant. The Tribunal while considering the aforesaid material has stated that the explanation furnished by the appellant was not sufficient and the plea of bona fide belief was not accepted.
It is thus found that satisfaction recorded initially by the Commissioner and then by the Tribunal as regards the intention of appellant to evade payment of central excise duty is without any supporting material on record - The substantial question of law as framed is answered by holding that the Tribunal was not justified in law and in facts in holding that the demand under the show cause notice was not barred by limitation.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 426 - CESTAT CHANDIGARH
CENVAT Credit - stock transfer - credit of duty paid on inputs received from their sister concern under stock transfer invoices - Rule 7(4) of the Cenvat Credit Rules, 2001/2002 - HELD THAT:- Rule 3 of Cenvat Credit Rules which provides for eligibility criteria of Cenvat credit does not discriminate between purchase and procurement. The only pre-condition appears to be receipt of input or capital goods in the factory of manufacture.
Karnataka High Court in the case of KARNATAKA SOAPS AND DETERGENTS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE [2010 (2) TMI 524 - KARNATAKA HIGH COURT] has upheld the view that Rule 7 which is more towards laying down the procedure cannot take precedence over Rule 3.
The impugned order does not stand the scrutiny of law - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 425 - CESTAT AHMEDABAD
CENVAT Credit - exempt services - demand of an amount at the rate of 5%/6%/7% of the value of exempted services in terms of rule 6 of Cenvat Credit Rules, 2004 - HELD THAT:- The Show cause notice alleges that the appellant has availed input credit of common services namely Banking and Financial Services, Professional Services, Telephone Services, Credit Rating Services and Membership of CAPEXILE. The Show cause notice as well as orders of the lower authority do not identify the exact amount of credit taken and the exact nature of common services on which the credit was availed.
The matter needs to be remanded - Appeal allowed by way of remand.
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2021 (12) TMI 424 - CESTAT CHANDIGARH
Refund of excess duty paid - non-inclusion of freight in the assessable value - N/N. 1/10 dated 06.02.2010 - HELD THAT:- It is a fact on record that at the time of clearance of goods, the appellant paid duty and claim refund thereof only, there is a Cenvat credit relying in Cenvat credit account unutilized due to return of goods already cleared by the appellant on payment duty. In these circumstances, the appellant is entitled for refund of duty paid in cash at the time of clearance of goods as held by this Tribunal in the case of SHREE NATH INDUSTRIES VERSUS C.C.E., JAMMU [2018 (5) TMI 195 - CESTAT CHANDIGARH].
Refund of duty paid on transportation charges as the appellant is produced only of the sample invoices, but it is found that it is a fact on record that appellant has submitted invoices before the adjudicating authority as well as with the Commissioner (Appeals), in these circumstances, it is not required further re-examination. Further it is a claim of the appellant that they have not included the transportation charges in the assessable value which is evident from the invoices.
The appellant is entitled to claim refund of duty paid on service tax paid on transportation charges - appeal allowed - decided in favor of appellant.
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2021 (12) TMI 423 - CESTAT NEW DELHI
CENVAT Credit - requirement to reverse and/or pay duty on removal - conveyor belt - scrap - Rule 5A of Rule 3 of CCR - HELD THAT:- In absence of any allegation that the appellant have removed the scrap, on which cenvat credit was taken, the show cause notice is bad for demand of duty on the value of scrap removed. The show cause notice lacks the satisfaction of the condition precedent that the assessee has or had taken credit on the relevant capital goods.
The appeal is allowed - decided in favor of appellant.
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2021 (12) TMI 422 - CESTAT NEW DELHI
CENVAT Credit - input services - outward transport where the appellant delivered the goods on FOR destination basis to the factory/ plant side of the buyer - rate is inclusive of transportation, but excluding excise duty and education cess - place of removal - HELD THAT:- The place of removal is not the factory gate, but the premises of the buyer. Admittedly the goods have been sold on FOR destination basis and sale price includes element of transportation.
The appellant is entitled to cenvat credit on the outward freight / transportation - appeal allowed - decided in favor of appellant.
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2021 (12) TMI 383 - MADRAS HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 - HELD THAT:- The petitioner has to workout the remedy before the Appellate Commissioner by filing suitable appeal under Section 84 of the Finance Act, 1994 on pre-deposit of 7.5% of the service tax demanded. The only option is available to the petitioner to approach the Director of Central Board of Indirect Taxes and Customs for appropriate relaxation in the light of outbreak of Covid-19 and on account of lock down imposed by the Government - petitioner is therefore directed to file a statutory appeal before the Commissioner of GST & Central Excise (Appeals), within a period of thirty (30) days from the date of receipt of a copy of this order.
If such an appeal is filed within such time, the appeal shall be held maintainable - petition disposed off.
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2021 (12) TMI 382 - CESTAT AHMEDABAD
Refund of CENVAT Credit - Banking and Financial Services - Insurance Services - export of finished goods i.e. Gold Jewellery - time limitation as per N/N. 41/2007-ST - denial on the ground that documents in respect of insurance service are not in the name and address of the appellant but in the name and address of Mumbai Office - evidence produced to substantiate that credit or not - documents are lacking vital details - Rule 4A of Service Tax Rules, 1993 read with Rule 4(7), Rule 9(2) of Cenvat Credit Rules, 2004 - HELD THAT:- The refund is governed by Notification 41/07-ST, it is found that the appellant is correct in submitting that at the relevant time this Notification was not in existence, therefore, it is wrong on the part of the Learned Commissioner (Appeals) to import and apply the non-existent notification.
The appellants have claimed the refund in respect of the input service used in relation to export of finished goods, therefore, the refund is correctly governed by Rule 5 read with Notification No. 27 of 2012-CE(NT), therefore, rejection of refund referring to Notification 41/2007-ST is absolutely incorrect being not relevant.
The learned Commissioner (Appeals) also given finding for rejection of the claim that the cenvat document is not in the name of the appellant but in the name of their Mumbai Office. Mumbai Office is not an independent entity and not carrying out a business separately. The Mumbai office is working solely for the manufacturing unit of the appellant company, one of the factories is the appellant Ahmedabad Factory. It is the submission of the appellant that they have taken credit only to the extent it is related to Ahmedabad Factory, therefore, even if the document is bearing the name and address of the Mumbai office, only on this ground, refund cannot be rejected since service is attributed to the appellant’s factory. Therefore, on this ground also, the learned Commissioner (Appeals) has erred in denying the refund.
Whether documents on which the cevnat credit was taken are proper in terms of Rule 4A of Cenvat Credit Rules, 2004 read with Rule 9(2) of Cenvat Credit Rules, 2004? - HELD THAT:- The appellants have produced the invoices on which cenvat credit was taken and, on going through the invoices, it is found that all the details as required in terms of Rule 4A read with Rule 9 of Cenvat Credit Rules, 2004 are appearing in the invoices.
Financial Services - HELD THAT:- The amount shown is consolidated amount inclusive of service tax, therefore, the appellant has bifurcated the said amount into the gross value and in the service tax amount, there are nothing incorrect in doing such bifurcation - the documents are correctly bearing all the information required, therefore, the cenvat documents are in confirmation to Rule 4A and read with Rule 9 of Cevnat Credit Rules, 2004.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 381 - CESTAT BANGALORE
CENVAT Credit - various input services - Hospitality services - pest control services - Commercial or Industrial construction service - Repair/servicing of motor vehicles services - AMC services - Services in respect of printing and issue of Meal vouchers‖ to the employees - Supply of Tangible Goods services - AMC of passenger elevators - Horticultural consultancy at various places - Maintenance of garden and fixing of agriculture artificial grass - Laying and maintenance of milestones - Installation, commissioning and maintenance of Public Address System in the factory - Goods sent for job work services - Maintenance of mason’s shed services - Apply of sky/street lights and fixing of roof sheeting services - Services received for own aircraft - Repair and maintenance of non-factory building, electrical installation and installation of rapid doors - Architect service - Laying, maintenance and repair of railway service - Manpower Supply services - Cleaning Services - Excavation of earth, roof work, sheeting work, PCC and RCC work of the buildings within the factory - Advertising Services - Air Travel Agent services - Airport services - Banking and Financial services - Business Support Services - Cargo Handling Services - Chartered Accountant Service - Convention Hall (Renting) services - Custom House Agent services - Goods Transport by Road - Health Care Services - Information Technology and Software services - Intellectual Property services - Interior Decorator services - Membership of Club or Association services - Port services - Sponsorship services - Survey and Map Making services - technical Testing and Analysis services - technical Inspection and Certification Service - Telecommunication services - HELD THAT:- It appears that the definition of input service did give vast connotation before or after amendment making the services used directly or indirectly, in or in relation to the manufacture of the final products. Only change made after amendment is that certain services are excluded. Various High Courts have interpreted to Rules to have a wider connotation rather than the constrictive view taken by Revenue.
Hon’ble High Court of Bombay in the case of M/S. COCA COLA INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, PUNE-III [2009 (8) TMI 50 - BOMBAY HIGH COURT] has held that the manufacturer is entitled to take credit on services used directly or indirectly, in or in relation to manufacture and clearance of the final products up to the place of removal and on various services as illustrated in the inclusive part of the definition; further they held, in the case of CCE, NAGPUR VERSUS ULTRATECH CEMENT LTD., [2010 (10) TMI 13 - BOMBAY HIGH COURT], that the definition of input service read as a whole makes it clear that the said definition not only covers services, which are used directly or indirectly in or in relation to the manufacture of final product, but also includes other services, which have direct nexus or which are integrally connected with the business of manufacturing the final product.
The appellants have correctly availed the credit on various disputed services - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 358 - CESTAT KOLKATA
Valuation of goods - M S Rounds/TMT bars - classifiable under Tariff item 72131090 of the erstwhile Central Excise Tariff or not - applicability of Rule 7 or Rule 8 of Valuation Rules - HELD THAT:- Rule 7 of the Valuation Rules, 2000, will apply only where an assessee does not sell any goods to unrelated buyers at the factory gate but transfers all their goods to their consignment agents. In this regard it will be useful to examine the provisions of Rules 7 and 8 of the Valuation Rules, 2000, during the relevant period, as they use the same starting expression.
The expression “ Where the excisable goods are not sold by the assessee” came to be examined by the Larger Bench of the Tribunal in the case of ISPAT INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., RAIGAD [2007 (2) TMI 5 - CESTAT, MUMBAI] where it was held that the assessee is correct in contending that provisions of Rule 8 would apply only in a case where its entire production of a particular commodity is captively consumed.
This decision of the Larger Bench was relied upon by the Tribunal in the case of BHARAT PETROLEUM COPRN. LTD. VERSUS COMMR. OF C. EX., CHENNAI [2009 (9) TMI 845 - CESTAT CHENNAI] to hold that Rule 7 of the Valuation Rules, 2000, which uses the same expression “ where excisable goods are not sold..”, can be invoked only where there are no sales of the goods at the factory gate and all the goods of the assessee are transferred to consignment agents. If the assessee’s excisable goods are also sold at the factory gate, Rule 7 will not apply.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 357 - CESTAT AHMEDABAD
CENVAT Credit - manufacture of dutiable goods as well as exempt goods - generation of electricity, which in turn is used in the manufacture of finished goods - Rule 6 of CENVAT Credit Rules, 2004 was amended by Notification No. 27/2005-C.E.(N.T.) dated 16.05.2005 - HELD THAT:- The appellants manufacture the Soda Ash which is a dutiable product and salt of various kinds which is an exempted product. The appellants are using certain common inputs in their electricity generation process on which they are availing Cenvat Credit. The appellant have used these common inputs for generation of steam which in turn is used partly for generation of electricity and partly in the process of manufacture of Soda Ash/salt plant in terms of Rule 6 of Cenvat Credit Rules, 2004. Since, the appellant were availing Cenvat Credit of common inputs which were used for both dutiable and exempted final product. The appellants were required to follow the prescription of Rule 6 of the Cenvat Credit Rules.
The Commissioner has denied the benefit of option (II) given under Rule 6 (3) as the appellant has failed to follow the procedure prescribed under Rule 6 (3A). It is found that the appellant has been reversing the credit on a monthly basis and ideally they should have followed the procedure prescribed under Rule 6 (3A) for first ascertaining provisionally the proportional amount of credit required to be reversed and thereafter finalizing it in terms of Rule 6 (3A). However, the substantial benefit available in the law cannot be denied simply because the appellant had failed to follow the procedure prescribed in the law. The appellant have claimed that the reversal made by them is the exact amount that they were required to reverse.
The other issue involved in the instant case is if the appellants’ are required to reverse the credit taken on HDPE bags and Soda Ash captively consumed for manufacture of salt - HELD THAT:- The appellants have categorically stated that they have paid duty on the captively consumed soda ash. They have also reversed entire credit taken on HDPE Bags. These facts needs verification.
The matter is remanded to the original authority. The appellant should submit the final data to substantiate the amount of credit required to be reversed in terms of Rule 6 (3A) in terms of the earlier order of tribunal - appeal allowed by way of remand.
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2021 (12) TMI 336 - CALCUTTA HIGH COURT
Levy of penalty on the company and its Director - initiation of proceeding was not permissible under Section 11A since there was no short-levy or non-levy of short payment of duty was existing on the date of initiation of proceeding - imposition of penalty is likely to be mandatory when penalty under Rule 25 is not mandatory - validity of levy of penalty under Rule 25 without any proposal for confiscation and/or confiscation of the goods and without mentioning any sub-rule is maintainable - Whether separate penalty on the Director is imposable, when penalty has been imposed on the company?
HELD THAT:- The assessee was ready to pay interest and the Tribunal has recorded such a concession. Therefore, the only issue whether penalty was rightly imposed or not is the crux of the matter which needs consideration. Considering the facts and circumstances of the case it is found that the penalty was rightly imposed on the assessee.
Whether the assessee would be entitled to the benefit of paragraph 2 of the order of adjudication dated 15th December, 2016 by which the adjudicating authority stated that if the duty determined under Section 11A is paid within thirty days from the date of communication of the order of adjudication the amount of penalty liable to be paid by the assessee shall be 25% of the duty so determined provided further if the reduced penalty is also paid within 30 days from the date of receipt of the order of adjudication? - HELD THAT:- Admittedly the duty has been paid much earlier by cheque dated 29th August 2005 i.e. much prior to the issuance of the showcause notice. Therefore, the appellant should be granted the benefit of 25% of the duty so determined by the adjudicating authority. The other condition which has been stipulated in the order of adjudication is that reduced penalty should be paid within 30 days from the date of receipt of the order of adjudication. Though such may be the condition but the same cannot negate the appellant/assessee’s right to prefer a statutory appeal provided under the Act. Two tiers of appeal, have been provided for under the Act and, therefore, the proper interpretation to compute the period of thirty days for payment of the reduced penalty is that such period shall start from the date on which the matter attains finality. The present proceeding is an appeal against the order of the Tribunal which is a continuation of the original proceeding though strictly not in the nature of first appeal under the Code of Civil Procedure as in the instant appeal the Court is to be satisfied that substantial question of law is involved. Nevertheless, this appeal has been pending before this Court from 2017.
If the appellant is permitted to pay reduced penalty i.e. 25% of the duty so determined within 30 days from the date of receipt of server copy of this order, the benefit should enure in favour of the appellant/assessee - the substantial question of law are answered against the assessee and the only relief granted to the assessee is permitting them to pay 25% of the duty determined by the adjudicating authority in this order of 15th December, 2016 within 30 days from the date of receipt of the server copy of this judgement and order.
Appeal dismissed.
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2021 (12) TMI 335 - KERALA HIGH COURT
Relevant date for counting the period of limitation for filing refund claim - whether it is the date on which the final price was communicated by KSEB to the appellant or the different dates on which duties were paid under provisional prices? - Price variation clause - retention of excess amount of duty when it is not legitimately due - sanction of excess amount of excise duty paid in circumstances beyond the control of the appellant - principles of equity - HELD THAT:- It is not in dispute that, in the case on hand, the claim for refund is made beyond one year from the date of payment of duty by the appellant as stipulated by Explanation (f). As rightly held in the orders under appeal, explanation (eb) is not attracted to the facts and circumstances of this case.
The period of limitation since being a mixed question of law and fact, the decisions which have been rendered in different circumstances are not applicable to the issue involved in this case and are clearly distinguishable.
The questions are answered against the appellant and in favour of respondent - Appeal dismissed.
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2021 (12) TMI 334 - CESTAT CHANDIGARH
Demand of interest and penalty - entire amount of cenvat credit or service tax payable by them paid before issuance of the show cause notice, but interest was not paid - HELD THAT:- It is a fact on record that audit took place during 3rd February to 13 February 2015 for the year 2013-14 if audit could not take place then availment of inadmissible cenvat credit and non payment of service tax on legal services could not be revealed. Further, the show cause notice has been issued within one year from the completion of the audit by the audit party on 11.02.2016.
In these circumstances, it is held that the show cause notice has been issued within time. Further, as admitted by Shri Ashok Kumar Sikka appearing on behalf of the appellant that they have not paid the interest for the intervening period which is required to be paid by them, therefore, the demand of interest is confirmed.
Penalty - HELD THAT:- In terms of Section 11AC of the Act if the demand of duty, interest are not paid within 30 days from the date of adjudication order, in that circumstances, the penalty is payable by the appellant. Therefore, the appellant is liable to pay penalty also.
Appeal dismissed - decided against appellant.
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2021 (12) TMI 333 - CESTAT CHANDIGARH
CENVAT Credit - credit denied on the premise as per N/N. 02/14-CE (N.T.) dt.20.1.2014, the appellant was not entitled to credit prior to the N/N. 01/10-CE dt.6.2.2010 - extended period of limitation - HELD THAT:- It is found that similarly placed assessee was allowed the credit although against those orders, the appeals have been filed by the Revenue before the Commissioner (Appeals), in that circumstance, when the Revenue is having divergent views on the issue, the extended period of limitation is not applicable. Admittedly, in this case, the show cause notice has been issued by invoking the extended period of limitation, therefore, the denial of credit is barred by limitation.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 285 - CESTAT AHMEDABAD
Entitlement to interest on refund - claim of interest rejected on the ground that at the time of sanction of refund and appropriation thereof, there was a confirmed demand - mandatory pre-deposit required under Section 35F in respect of appeal pending before the Commissioner (Appeals) - HELD THAT:- There is chequered history of the entire case however, the case can be decided brief. The refund of the appellant was appropriated against the confirmed demand. The said confirmed demand order was under challenge in appeal before the Commissioner (Appeals). The dispute was that whether the appellant’s payment of pre-deposit through cenvat account is legal and correct for entertaining the appeal. The Commissioner (Appeals) was of the view that the appellant was supposed to make pre-deposit payment in cash. This issue has been taken to the Hon’ble Gujarat High Court.
The Hon’ble Gujarat High Court in CADILA HEALTH CARE PVT LTD. VERSUS UNION OF INDIA [2018 (11) TMI 80 - GUJARAT HIGH COURT] held that the appellant’s payment of pre-deposit through cenvat in appeal filed before the Commissioner (Appeals) is acceptable.
The appeal filed before Commissioner (Appeals) along with the pre-deposit, the demand amount of the said case could not have been adjusted against the sanctioned refund, therefore, the refund ought to have been paid on the date of sanction itself - Since the refund was payable on the date of sanction, the appellant is entitled for the interest from the date of sanction till the date of payment of refund amount.
Appeal allowed - decided in favor of appellant.
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