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Central Excise - Case Laws
Showing 61 to 80 of 668 Records
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2021 (12) TMI 284 - CESTAT NEW DELHI
Refund of amount deposited as pre-deposit - amount deposited in excess of the mandatory pre-deposit shall be treated as deposit under section 35 F of the Central Excise Act or not? - para 3 of Circular No.984/08/2014 dated 16.09.2014 - HELD THAT:- The impugned refund cannot be called as refund of amount of pre-deposit nor has been claimed so by the appellant. The amount to the extent of pre-deposit out of aforesaid ₹ 66 Lakhs was ₹ 44 Lakhs which has already been refunded in favour of the appellant. The proposals of duty demand have been set aside. Hence, it becomes clear that appellant was not liable to pay ₹ 66 Lakhs. ₹ 44 Lakhs whereof were required as an amount of pre-deposit till the appeal of the appellant was not decided by the Tribunal. Once the Tribunal’s order setting aside the demand had attained finality, the amount equivalent to the 10% of the impugned duty was calculated as ₹ 44 Lakhs, hence, was refunded. However, ₹ 21 Lakhs is also part of such money of appellant for which he was never liable towards the Department. Accordingly, Department is not entitled to retain the same or to become unjustly rich by retaining the money of the assessee. Once the proposed duty demand against the appellants stands set aside, the entire basis of deposit as was made by the appellant fails to survive. Department cannot be allowed to retain any part of the said amount.
The amount of ₹ 21 Lakhs is an amount of “deposit made under protest “it cannot be called as duty. Question of applicability of section 11B of Central Excise Act does not at all arise. The findings of Commissioner (Appeals) to this effect are, therefore, held to be wrong.
Rejection to the extent of ₹ 6 Lakhs on the ground of no proof for said amount to be debited from the credit ledger - HELD THAT:- It is observed from the record that the said amount of ₹ 6 Lakhs is depicted in ER-1 for the period June, 2017 as a closing balance. The GST regime was introduced w.e.f. July 1, 2017. It is also observed that the said amount has not been claimed as credit under GST through form GST TRAN-1. Hence, it was the amount which is standing as a closing balance in ER-1 as on June 30, 2017 which was not transferred to GST Regime. Hence, is as good as the cash lying with the Department and has to be treated as equal to the debit of the Cenvat account in terms of Section 142 of GST Act. The said amount has mandatorily to be refunded to the assessee in cash.
It stands clear that appellant is entitled for refund of ₹ 15 Lakhs as were paid in cash by him at the time of the investigation of the impugned proceedings and is also entitled for refund of ₹ 6 Lakhs in cash as was being paid from his Cenvat Credit Account at the same stage as mentioned above and that appellant has been held to not to be liable to pay the alleged amount of duty which includes said ₹ 21 Lakh also. Accordingly, the refund claim of ₹ 21 Lakhs has wrongly been rejected by the Adjudicating Authority below.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 283 - CESTAT MUMBAI
Rejection of application for rectification of mistake - HELD THAT:- While rejecting the application for rectification of mistake which is filed on frivolous ground there is a requirement of putting a restraint on such unethical practice of casting aspersions on the findings of the Tribunal without basis in terms of the judgment of this Tribunal passed in the case of COMMISSIONER OF C. EX., JAIPUR-I VERSUS MELCON [2007 (3) TMI 459 - CESTAT, NEW DELHI] which is filed by learned AR Shri Sanjay Hasija at Annexure-H of his additional submission dated 10.02.2021 and in imposing a cost on the Commissioner Manpreet Arora for filing such frivolous application stating that the Commissioner (Appeals) had dismissed the appeal at the admission stage on limitation and maintainability and not on merits despite the fact that the merit of the case was heard during personal hearing dated 05.12.2018 as referred in para 4 and 5 of his order dated 10.05.2019 and a finding to that effect was also given which was noted by this Tribunal in para 3 and 4 of its order dated 16.04.2021.
The rectification application is, therefore, dismissed with a cost of ₹ 10,000/- to be paid by the applicant to the Government Treasury within a month of communication of this order.
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2021 (12) TMI 241 - BOMBAY HIGH COURT
Clandestine removal - denial of opportunity of cross-examination of witnesses - at what stage would he be entitled to cross-examine the witnesses - relevancy of statements relied upon - HELD THAT:- A stage prior to issuance of show-cause notice cannot be regarded as an inquiry or proceeding as contemplated in the Act. As per sub-section (1) of section 14 of the Act, power to summon witnesses in any inquiry for purposes specified therein has been conferred on an officer duly empowered by the Central Government and in terms of subsection (3) thereof, any such inquiry shall be deemed to be a judicial proceeding within the meaning of section 193 and 228 of the Indian Penal Code. Prior to the issuance of a show-cause notice, neither any inquiry nor a proceeding can be said to have commenced. Therefore, any statement recorded prior to the issuance of such show-cause notice is not a statement recorded in the course of an inquiry or proceeding and no right accrues in favour of a noticee to insist that he be offered for cross1- examination the witnesses, whose statements have been recorded and are referred to in the show-cause notice, even prior to a reply thereto being submitted. Once the show-cause notice is issued, it is for the petitioner to deny and dispute the allegations levelled therein and if he so chooses to raise such defence as he may be advised.
Omission and/or failure to reply to a show-cause notice may not, in all cases, amount to an admission of the allegations. In the present case, such question of admission does not arise because the petitioner in his reply dated 23rd October, 2020 has clearly denied and disputed the allegations levelled against him. The only question is at what stage would he be entitled to cross-examine the witnesses.
The petitioner is granted liberty to file a final reply to the show-cause-cum-demand notice dated 24th September, 2020 within a fortnight from date - Petition disposed off.
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2021 (12) TMI 240 - CESTAT AHMEDABAD
Denial of benefit of notification no. 06/2011-CE dated 01/03/2011 - Concessional rate of duty - nickel perforated rotary screen classified under chapter heading 84405031 - HELD THAT:- Admittedly, in the case of COMMISSIONER OF C, EX., VAPI VERSUS HARISH INDUSTRIES ENGINEERS [2008 (1) TMI 60 - CESTAT AHMEDABAD] the dispute with regard to classification of product and in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS M/S. MEWAR BARTAN NIRMAN UDYOG [2008 (9) TMI 33 - SUPREME COURT], Hon’ble Apex Court has clarified that while interpreting exemption notification, one cannot go by rules of interpretation applicable to cases of classification under the tariff. Therefore, the said decision in the case of COMMISSIONER OF C, EX., VAPI VERSUS HARISH INDUSTRIES ENGINEERS [2008 (1) TMI 60 - CESTAT AHMEDABAD] is not applicable to the facts of the present case. We take a note of the fact that the appellant has classified the impugned goods under CTH 844250 which includes “Plates,cylinders and other printing components;”.
The appellant is entitles for benefit of Sno. 41 in list 2 of notification no. 06/2011-CE dated 01/03/2011. Therefore, no demand is sustainable against the appellant - appeal allowed - decided in favor of appellant.
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2021 (12) TMI 239 - CESTAT MUMBAI
Valuation - inclusion of cost of Pre-delivery Inspection (PDI) and After Sale Service (ASS) in the assessable value of the motor vehicles sold by the appellant to the dealers - charges/expenditure are incurred by the dealers from their profit margin - HELD THAT:- The issue is no longer res integra as held in COMMISSIONER OF CENTRAL EXCISE, MYSORE VERSUS M/S TVS MOTORS COMPANY LTD. [2015 (12) TMI 874 - SUPREME COURT] where it was decided that the said charges cannot be included in the assessable value of the motor vehicles.
The issue stand settled in favour of the appellant - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 238 - CESTAT MUMBAI
Remission of duty - finished goods destroyed in the fire accident - inputs contained in the semi-finished goods destroyed in the fire accident - principles of natural justice - Rule 21 of Central Excise Rules, 2002 - HELD THAT:- There is no dispute between the appellants and revenue, on the findings recorded by the Commissioner in para 19 of his order. Commissioner has recorded categorically that fire on the 02.04.2015 in the premises of the appellant was accidental and there was no negligence on the part of appellants. Since revenue has not challenged this finding of the Commissioner, by way of cross objections or cross appeal, this finding of Commissioner has become final. Also at the time of hearing, learned counsel appearing for the Appellant agreed that Commissioner was correct in his findings to the effect that for the finished goods on which remission of duty as per Rule 21 of Central Excise Rules, 2002 is allowed, the CENVAT Credit taken on the inputs contained in these finished goods need to be reversed as per Rule 3 (5C) of the CENVAT Credit Rules, 2004.
Rejection of request for remission of duty - HELD THAT:- Rule 21 do not limit its application only to the finished goods manufactured by the manufacturer, but would include within its ambit all those goods which “have been lost or destroyed by natural causes or by unavoidable accident or are claimed by the manufacturer as unfit for consumption or for marketing, at any time before removal.” Clearly the word goods is wide enough to include all the goods, whether finished good, raw material, packing material, semi-finished goods or the capital goods within its ambit.
It is settle principle of interpretation, that interpretation should be made without adding or deleting the words used in the Rules. What is to be remitted is the duty required to be paid by the manufacturer on the goods he intends to remove from his premises. When the amount required to be paid in terms of Rule 3 (5) has been deemed to be the duty paid by the manufacturer removing the inputs as such, then claim made by such manufacturer in terms of Rule 21 for remission of these amounts cannot be brushed aside if the Commissioner is satisfied that these goods have been lost or destroyed by natural causes or by unavoidable accident or are claimed by the manufacturer as unfit for consumption or for marketing, at any time before removal.
The process of production as envisaged in CENVAT Credit Scheme thus commences the moment the goods are received by the manufacturer in his manufacture, and CENVAT Credit Scheme acknowledges this fact as it allows the taking of credit and even utilization of the same instantaneously on receipt of inputs. All the inputs, packing materials whether in process of manufacture or intended to be used in the process of manufacture of the finished goods which were destroyed in fire accident and could not be used so are covered by the decision of the Hon’ble Supreme Court, we are not in position to agree with the findings recorded by the Commissioner demanding the reversal of CENVAT Credit by invoking the provisions of Rule 3 (5B) of the CENVAT Credit Rules, 2004.
The demand of interest and penalties imposed by the Commissioner also set aside.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 181 - ORISSA HIGH COURT
Nature of activity - service or process amounting to manufacture - production of electricity - Scope of Business Auxiliary Service - HELD THAT:- The Business Auxiliary Service excludes activity that amounts to manufacture.
In ORIENT PAPER & INDUSTRIES LTD. VERSUS ORISSA STATE ELECTRICITY BOARD [1989 (1) TMI 138 - HIGH COURT OF ORISSA], it was held that electricity that has been specified in the First Schedule to the CE Act after its amendment was ‘excisable goods’ and, therefore, generation of electricity should be understood as ‘manufacture or production of electricity.’
In CMS (I) OPERATIONS & MAINTENANCE CO. P. LTD. VERSUS C. CE, PONDICHERRY [2007 (5) TMI 74 - CESTAT, CHENNAI], the Southern zonal Bench of the CESTAT held that electricity was manufactured goods in terms of Section 2(f) of the CE Act and, therefore, the activity of electricity generation was not liable to service tax as ‘Business Auxiliary Service’ under Sections 65 (19) read with 73 of the Finance Act.
The Court finds no reason to interfere with the impugned order of the CESTAT in the present case - Appeal dismissed - decided against appellant.
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2021 (12) TMI 180 - GUJARAT HIGH COURT
Clandestine manufacture - petitioner sought the inspection of the relied upon documents and the statements as well as those statements which had not been relied upon by the department - seeking cross-examination of witnesses - principles of natural justice - HELD THAT:- The Courts have thus upheld the rights of cross examination and any denial of the opportunity on that count has been held to be in violation of the principle of natural justice. It is the right of the defence/litigating parties to ask for the examination of defence witnesses who could be from any pool which can include those witnesses whose statements have been recorded and not relied upon by the Department while prosecuting the person. In the instant case, the statements have been recorded of many of the witnesses and some of whom have not been examined as they have not been relied upon in the show cause notice. Surely from the said pool, the defence can make a request for examination of witnesses as defence witnesses and that simply cannot be denied by the authority.
We are not in agreement with the respondent department when it disputes that basic proposition that the statements of prosecution witnesses which have not been relied upon and if the request comes forth for those witnesses to be examined as the defence witnesses, the same shall need to be allowed, subject to statutory provision of Section 128 as it is always to be left to the parties concerned in adjudicatory process as to whom they need to be brought as the defence witnesses. Here some of the witnesses are those whose statements were recorded before the show cause notice had been issued and for the reasons suited best to the respondents, quite a few of them were not included in the show cause notice. It would be always the right of the party against whom the show cause notice is issued to call them as defence witnesses as it is the right given to the party which faces the adjudication proceedings.
The Court needed to take a note of the fact that the order-in-original came to be passed despite the specific assurance given by the then learned Standing Counsel. It is also reflected in the order-in-original. We had directed the affidavit to be filed however, that has not come on record. We have chosen not to stretch this issue, but, the then learned Standing Counsel was expected to guide the officer concerned dispassionately and as otherwise needed as Court Officer. The order-in-original is passed in complete disregard to the adjournment sought by the respondent and assurance given to the Court even while urgency was made.
Remand the matter back to the authority who passed the order-in-original to hear it from the stage where it was when they approached this Court. Let the petitioner cooperate. The matter to be completed in twelve (12) weeks’ time from the date of receipt of copy of this order - Petition allowed by way of remand.
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2021 (12) TMI 179 - GUJARAT HIGH COURT
Legality and validity of the show cause notices issued by the respondent authorities - whether the said show cause notice is ex facie without jurisdiction and authority of law and in clear disregard to the binding order of the superior authority amounting to abuse of process of law, illegal and void? - HELD THAT:- The impugned show cause notice once again of raising the very issue when the order of Commissioner (Appeals) has attained finality without any challenge by the department, which deserves indulgence. It is a judicial discipline which demands following the mandate of superior authority, even when it is a quasi judicial body as such discipline is an intigral part of this well laid down principle and deserves scrupulous observance by all concerned. No one is permitted to obliterate this well defined boundaries, even in a zeal to earn more revenue or profit the interest of the State as done by the respondent No.2.
The show cause notice is issued without any new material in the matter and on the very ground which had been decided by the Commissioner (Appeals) and therefore it is ex facei without jurisdiction and hence, the interference under Article 226 of the Constitution of India despite the availability of the alternative remedy would be necessary in the instant case.
This nowhere requires the reopening of the process which had already attained the finality and quietus. We accept the version of the learned ASG that this is not a case where we can impute any mala fides to the respondent No.2. It is over enthusiasm of the officer to advance the departmental cause that without grasping the ratio on the subject and disregard to the settled principles of law that he has initiated the action and hence, the interference is a must by quashing and setting aside the impugned show cause notice - Petition allowed.
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2021 (12) TMI 178 - CESTAT NEW DELHI
CENVAT Credit - default in payment of duty beyond 30 days - failure to pay interest on defaulted amount of duty and that the appellant had utilized Cenvat credit - Rule 8(3A) of the Central Excise Rules, 2002 - HELD THAT:- Evidently, as per Rules of interpretation, where a provision is inserted by way of substitution, it is deemed to have been inserted w.e.f. the date of the original statute, unless otherwise provided. Further, it is noticeable that the erstwhile Rule 8(3A) provided that in case an assessee is in default in depositing the duty for a period of more than 30 days, then the assessee shall be deemed to be in default and during such default, he shall not be entitled to utilise the Cenvat credit and shall be liable to pay duty consignment wise (i.e. on each clearance), whereas the substituted Rule 8(3A) provides that if the duty is not deposited or paid within a period of one month from the due date then the assessee shall be liable to pay a penalty @ 1% on such amount of duty not paid for each month or part thereof, during the period such failure continues.
The Hon’ble Gujarat High Court in the case of INDSUR GLOBAL LTD. VERSUS UNION OF INDIA & 2 [2014 (12) TMI 585 - GUJARAT HIGH COURT] have been pleased to quash/read down the provision of erstwhile Rule 8(3A) to the extent it disabled an assessee from utilising the Cenvat credit lying to its credit, in utilising during the period of default. Accordingly, in view of the substituted provision w.e.f 11/07/14, the show cause notice is bad in law in view of the amendment in Rule 8(3A) of the Central Excise Rules 2002 w.e.f. 11/7/2014.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 177 - CESTAT ALLAHABAD
Levy to Excise Duty - Ready Mix Concrete (RMC) or concrete mix manufactured by the appellant at the site of M/s Supertech Limited - extended period of limitation - HELD THAT:- Admittedly, there has been no inspection at the site (Eco Village-II), where the appellant has installed their batching plant for supplying to M/s Supertech Limited. Further, admittedly the appellant has taken registration under Service Tax provisions with the Department, and were paying service tax on the job charges. Admittedly, appellant have raised two bills one for supply of material and the other for job work – mixing the cement, aggregate water, etc. in its batching plant. Further, appellant has raised the job work invoice for concrete mix.
Extended period of limitation - HELD THAT:- Revenue have not brought any facts on record in support of its allegation of manufacture of RMC by the appellant. Thus, in the facts and circumstances, it is concluded that what has been manufactured and supplied by the appellant is ‘concrete mix’, which is not dutiable - the appellant has taken registration for service tax, paying service tax and making compliances for the said activity under dispute, the facts were in the knowledge of the Department and as such extended period of limitation is not invokable.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 176 - CESTAT MUMBAI
CENVAT credit - input service - GTA service - disallowed on the ground that the appellant have availed the CENVAT credit in respect of outward transportation of the goods cleared from the factory to depot and from the factory/depot to customer - HELD THAT:- If the GTA service in respect of receipt of inputs that will amount to inward transportation and credit is undisputably available in terms of definition of ‘input service’ under Rule 2(l) of CENVAT Credit Rules, 2004. In the case of outward transportation for clearance of finished goods from factory to depot, depot being the ‘place of removal’, CENVAT credit on GTA service from factory gate to ‘place of removal’ is clearly admissible. However, there is a dispute on the facts which is the root of the case. Therefore, at this stage, the Tribunal cannot take a conclusive view in absence of clarity on facts.
The matter needs to be reconsidered on the facts of the case that whether the GTA service on which credit was taken is for outward transportation from factory gate to the customer or it is in respect of inward transportation from vendors/suppliers of inputs place to the appellant’s factory.
Appeal is allowed by way of remand to the adjudicating authority.
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2021 (12) TMI 75 - ORISSA HIGH COURT
CENVAT Credit - inputs or not - items used for fabrication items of supporting structures of the capital goods - supporting structures, fabricated and embodied to the earth - constitute as “Goods” under the statute or not - Rule 2 of the CENVAT Credit Rules, 2004 - HELD THAT:- The Respondent Company had obtained a Central Excise Registration under Section 6 of the Central Excise Act, 1944 (CE Act) for the purposes of manufacturing of sponge iron and its derivative products. For manufacturing, the Respondent constructed/installed 4 100TPD Sponge Iron Plant and availed CENVAT Credit on input on various items during the relevant period i.e. from May to August, 2004. A part of the inputs included construction materials.
The Court finds that in the present case the categorical finding on fact concurrently both by the Commissioner and the CESTAT is that the iron steel and items were in fact used in the fabrication of identifiable capital goods which were in turn used for manufacture of excisable goods. Further, the circular dated 2nd December, 1996 issued by the CBEC fully supports the case of the Respondent.
Reference could also be made to the decision in Commissioner of Central Excise, Jaipur v. M/s. Rajasthan Spinning & Weaving Mills Ltd. [2010 (7) TMI 12 - SUPREME COURT] where the Supreme court allowed MODVAT credit on steel plates and M.S. channels used in the fabrication of chimney for the diesel generating set.
The CESTAT was justified in dismissing the Department’s appeal since the credit was claimed in respect of the inputs used for fabrication items supporting structures of capital goods - the CESTAT was right in law by allowing CENVAT Credit on the goods used for fabrication of supporting structure for capital goods - Tribunal was right in law in holding that the fabrication goods used for supporting structures were capital goods for which CENVAT Credit was allowable.
Appeal dismissed - decided against appellant.
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2021 (12) TMI 74 - CESTAT AHMEDABAD
Waiver of SCN - differential duty with interest paid before issuance of SCN - Sale of goods with brand name as well as goods without brand name - invocation of Section 11A(2B) of Central Excise Act, 1944 - HELD THAT:- The Adjudicating Authority has quoted Section 11A(1)(2) of Central Excise Act, 1944 which is duly amended as per the amendment made by Finance Act, 2011. However, in the present case, the period involved is March 2008 to January 2010 therefore, the un-amended provision shall be applicable
Unamended sub-Section 11(2B) shall apply for waiver of show cause notice. Therefore, there is fundamental error on the part of the Adjudicating Authority for considering wrong provision i.e. amended provision, which is effective by enactment of Finance Act, 2011. We also find that the appellant have paid entire differential excise duty along with interest. There is only minor difference in the interest amount as per Revenue even that is also in dispute as regard the correct calculation thereof.
The case needs to be reconsidered - matter is remanded to the Adjudicating Authority for reconsideration and for passing de-novo order - Appeal allowed by way of remand.
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2021 (12) TMI 73 - CESTAT AHMEDABAD
CENVAT Credit - transfer of credit - appellant have entered into service agreement with clients of different countries - requirement of ISD registration, for their Mumbai office from which they have transferred the credit - case of petitioner is that there is only one factory and one office there is no need for registration of ISD - time limitation - period from April 2011 to October 2015 - HELD THAT:- It is seen that appellant has claimed they have only one manufacturing unit. Revenue has not produced any evidence otherwise. In these circumstances there is no need of ISD Registration.
There is no categorical finding of Commissioner on the nature of services and where the same are used. In the statement of Shri Minesh Gupta Manager, Warehousing and Stores, he has not clarified where these services have been used and the purpose of availing these input services. The manner of distribution of expense on the fixed percentage basis has also not been elaborated in the order or in the notice. In these circumstances we constrained to remand the matter relating to appeal no. E/10987/2016 back to Adjudicating Authority to give clear finding in respect of each of this service disputed for the purpose of Cenvat credit.
Appeal disposed off.
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2021 (12) TMI 72 - CESTAT NEW DELHI
Rejection of refund of the amount of penalty deposited - penalty was imposed under Rule 173Q of Central Excise Rules, 1944 - HELD THAT:- It is admitted fact on record that the Hon’ble Supreme Court in the case of Hans Steel Rolling Mills [2011 (3) TMI 2 - SUPREME COURT] has held that penalty under Rule 173Q is not imposable where an assessee is operating under the ‘compound levy scheme’ which is a complete code in itself. The order of Hon’ble Supreme Court is binding on all sub-ordinate Courts including the Adjudicating Authority (under the taxation law) as provided in Article 141 of the Constitution of India.
The observation of the Commissioner (Appeals) for denying the refund for amount of penalty under Rule 173Q, is erroneous and bad - the impugned order-in-appeal is modified and penalty of ₹ 25,000/- deposited under the provisions of Rule 173Q is held refundable - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 71 - CESTAT AHMEDABAD
Clandestine removal - IMT Bars - Area based exemption - contravention of re-credit facility available as per N/N. 39/2001- CE date 31.07.2001 - suppression of fact in making clandestine removal or not - time limitation - HELD THAT:- is an undisputed fact that the appellant at the time of clearance of the goods under area based exemption Notification No- 39/2001- CE dated 31.07.2001 has not paid the duty. Moreover, the clearance of goods was made under the guise of that waste coal and accordingly goods were clandestinely cleared and evaded the payment of excise duty. Though the appellant subsequently paid duty but at time of clearance they have mis-declared and cleared the goods clandestinely. Therefore, the appellant has clearly contravened the condition stipulated under the Notification No. 39/2001- CE. Therefore the re credit of the duty paid subsequently is not admissible to the appellant.
The appellants plea that there is no suppression of fact in the present case is of no help to them - there is clear contravention with malafide intention of Notification No 39/2001-CE. Therefore the appellant is not entitled for re- credit of the amount of duty paid in respect of goods clandestinely removed.
Appeal dismissed.
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2021 (11) TMI 1153 - SC ORDER
Wilful Disobedience - Area based exemption - exemption in respect of NCCD, EC and SHEC - N/N. 50 of 2003 dated 10.06.2003 - CENVAT credit - penalty u/s 11AC - HC [2018 (1) TMI 770 - UTTARAKHAND HIGH COURT] held that The power to exempt payment of NCCD and the cesses in terms of the Act and the Rules are certainly available in relation to NCCD and the cesses, but they remain levies under the concerned Finance Acts. Since they are part of the basket of levies embraced under Rule 3(1) making up the aggregate of the CENVAT credit, subject to any restriction or limitation, which may be found elsewhere, there can be no doubt that the assessee can make use of the basic excise duty under the Act for payment of the NCCD or the cesses on the final product. And entitlement of credit was denied - HELD THAT:- The impugned show cause notice has still not been withdrawn despite the caution extended on 08.10.2021 - Let contempt notice issue to the officers concerned for willful disobedience of the orders of this Court.
MA 1675/2021 in C.A. No. 1600-1605/2018
This application post dismissal of Review Petition, a gross abuse of process of law. Not only that the review Petition was dismissed on 25.08.2020 both on delay and merits. Despite that in ground ‘M’ in the application a false averment has been made that the review petition was only dismissed on limitation. That is a ground itself apart from anything else for dismissal of this application - Application dismissed.
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2021 (11) TMI 945 - CESTAT AHMEDABAD
100% EOU - CENVAT Credit - supplementary invoices/document on which credit taken - duty paid due to closer of advance licenses in which the appellant had failed the fulfilled the export obligation as per undertaking given by them - delay in taking credit - transfer of credit as per Rule 10(3) of the Cenvat Credit Rules, 2004 - HELD THAT:- The impugned order holds that the Cenvat credit cannot be availed on the basis of supplementary invoices issued by a manufacturer or importer in case of additional amount of Excise duty or additional duties leviable under section 3 of the Customs Tariff Act paid become recoverable on the account of non levy or short levy by reason of fraud collusion or any willful mis- statement or suppression of fact etc. There is no charge that in the show cause notice that there was any fraud collusion or any willful mis- statement or suppression of fact on the part of the appellant and therefore the observations made in the impugned order are irrelevant. In fact the impugned order does not even allege that the said duty was recovered on account of fraud collusion etc.
Document on the strength of which credit has been taken - HELD THAT:- The impugned order takes note of Rule 9 of Cenvat Credit rules, to hold that challans are not specified documents except in the circumstances when they are supplementary to the original invoice - Rule 9 permits taking of credit on challans, however, the impugned order holds that credit cannot be taken on the strength of all the challans. It holds that only when an additional amount on duty becomes payable that credit can be availed on the strength of the challans.
In the instance case the original duty paying document is bill of entry and the challans are the documents on the strength of which additional duty has been paid. Thus, even going by the logic given by the Commissioner in the impugned order there is no bar on availing credit on the strength of challans - there are no merit in this argument of the Commissioner in the impugned order.
Delay in taking of credit - HELD THAT:- In the instances case the duties were paid in the year 2008 and 2009 and credit was taken on 30.11.2009. The duty was paid in the year 2008/2009 and credit was availed on 30.11.2009. At the material time there is no time limit specified for taking of credit. In the year 2014 when time limit for availment of credit was specified, a limit of 1 year was given. In these circumstances, there are no merit in this argument of Commissioner also.
Transfer of CENVAT Credit - Rule 10 of the Cenvat Credit Rules - HELD THAT:- Rule 9 clearly specified that in case of merger transfer of credit shall be allowed only if the stock of input as such or in process or the capital goods is also transferred along with the factory or business premises to the new site or ownership and the inputs or capital goods on which the credit has been availed are duly account for to the satisfaction of Deputy Commissioner of Central Excise as a case may be. In the instance case, it is notice that the permission for conversion of DTA unit to EOU unit was initially granted by the Development of Commissioner, KASEZ, thereafter, the Assistance Commissioner of Central Excise and Customs, Div-Vapi granted license on 15.01.2007. However, from the record it is not clear if the exercise of dealing the transfer of stock of inputs as such or in process all the capital goods transferred was done - in the instance case, it is seen that the issue is not covered by the mischief of Rule 10. It is seen that the appellant merged two units in the year 2007. This duty was paid subsequently by the merged unit in the year 2008/2009. Thus, it is not a case falling within the ambit of Rule 10 of the Cenvat Credit Rules and the same is therefore not applicable to the instance case.
Appeal allowed - decided in favor of appellant.
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2021 (11) TMI 896 - CESTAT CHENNAI
CENVAT Credit - manufacture of exempt product namely ‘sludge’ - appellants have used common inputs for manufacture of dutiable product (Gelatine) and exempted product (Sludge) - non-maintenance of separate records - Rule 6 (3) of Cenvat Credit Rules, 2004 - period from 10.05.2008 to 30.09.2011 - HELD THAT:- The demand has been raised on the view that the sludge removed is an exempted goods manufactured by the appellants. The appellant does not consciously manufacture any waste. During the course of manufacture, the waste that arises is drained into the Effluent Treatment Plant. Thus, waste removed from the Effluent Treatment Plant forms sludge and is removed on a daily basis to a dump yard from where it gets dried and is thereafter sold to fertilizer manufacturers. The appellant has to comply with the pollution control requirements and therefore maintain the Effluent Treatment Plant and remove the waste as per the effluent norms. A manufacturer would be happy when there is less waste or no waste at all since the burden of maintaining the effluent treatment plant and the transportation of the sludge etc. can be minimized. No manufacturer would consciously manufacture waste. For these reasons, it cannot be said that the waste / sludge is an ‘exempted goods’ manufactured by the appellant.
The said issue stands considered by the Tribunal in the case of ITC LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, SALEM [2013 (12) TMI 928 - CESTAT CHENNAI]. In fact, the Commissioner (Appeals) has cited the said decision to set aside the demand prior to 10.05.2008. It has to be stated that even after 10.05.2008, though the Explanation to Section 2(d) states that any article, material or substance which is capable of being bought and sold for a consideration will also fall within the definition of “goods”, in the present case, the appellants having not manufactured the waste consciously, it cannot be considered as an ‘exempted goods’ falling under Rule 6 (3) of CCR 2004.
The demand cannot sustain - appeal allowed - decided in favor of appellant.
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