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Central Excise - Case Laws
Showing 1 to 20 of 955 Records
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2022 (12) TMI 1499 - CESTAT MUMBAI
Levy of penalty equivalent to the credit denied - CENVAT Credit on Capital Goods, for setting up the paint shop - inputs not received by the appellant in their factory premises but sent directly to the premises of the job worker, from where the goods were cleared to the customers as per Rule 10A of the Valuation Rules, 2000 - availment of the credit twice - clandestine removal - shortages of finished goods - invoking Rule 3 (5B) of the CENVAT Credit Rules, 2004, in respect of alleged shortages of the inputs and work in process material - extended period of limitation - penalties.
Levy of penalty equivalent to the credit denied - CENVAT Credit on Capital Goods, for setting up the paint shop - HELD THAT:- The appellant do not dispute that these capital goods were not received by them and not installed/ put to use. They do not dispute the denial of the credit, which they had reversed along with the interest due on the same. They are only challenging the penalty imposed on them equivalent to the credit denied. It is found that in respect of the said demand undisputedly appellant have paid the entire amount of credit along with interest on being pointed out by the audit much before the issuance of show cause notice. In such a situation, the as per the provisions of Section 11 A (2) reproduced below, no notice could have been issued to the appellant and penalty imposed - the submission of the appellant, challenging the penalty imposed under needs to be accepted, and appeal in respect of this demand allowed to the extent of setting aside the penalty imposed.
CENVAT Credit - demand made on the insulation material without physically receiving the same in their factory premises - HELD THAT:- Undisputedly in the present case the goods were cleared from the premises of the job worker to unrelated buyer after determination of value under Rule 10A. Thus the clearances undertaken were in fact clearances made by the principal manufacturer and all consequences including admissibility of CENVAT Credit on the input raw materials supplied by them to the job worker is on the principal manufacturer. The appellants in fact being the principal manufacturer cannot be faulted when they had availed the credit in respect of the inputs supplied by them directly to the job worker for the clearance of the finished goods as provided for in terms of Rule 10A.
On the issue of admissibility of CENVAT Credit on the inputs sent directly to the premises of job worker, the issue is no longer res-integra. CENVAT Credit has been held to be admissible in respect of the goods sent directly to the job worker - reliance can be placed in M/S BILT GRAPHIC PAPER PRODUCTS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2018 (5) TMI 390 - CESTAT MUMBAI] and FLEX INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NOIDA [2006 (2) TMI 439 - CESTAT, NEW DELHI].
The principles stated in the above decision were incorporated in the CENVAT Credit Rules, 2004 vide the amendments made by Notification No 6/2015.In view of the decisions, the demand made for recovery of the CENVAT Credit availed by the appellant on the insulation material sent directly to the job worker without receiving the same in their premises cannot be sustained, the appeal needs to be allowed in respect of this demand.
Denial of the CENVAT credits - it is alleged that appellant has availed the CENVAT Credit twice on the same invoice, appellants have not stated anything in their appeal memo - HELD THAT:- From the show cause notice and the impugned order, there are no support for the allegation made. Even the detail of invoice against which the credit has been alleged to have been taken twice is not stated. In absence of any details in respect of the invoice number/ date and the entries in the CENVAT account by which the credit has been taken twice, it cannot be held in favour of this demand. The allegation made without any reference to relevant documents and entries in the book of accounts cannot be upheld. Appeal filed by the appellant in respect of this demand is allowed.
Gross shortages and on the Damaged/ rejected/ Non saleable stock - HELD THAT:- It is observed that these demands have been made in respect to the accounting shortages, which were in respect Raw material, Work in Process material and Finished Goods. These shortages are not the physical shortages determined by the actual physical stock taking undertaken by the department. As per the appellants the entire issue of shortage in the present case, cropped up when the appellants migrated from the earlier system of accounting to SAP system. In process the appellants discovered certain accounting errors in books of account like BOM error, posting entry, material issued to production but not captured in the books, process loss not captured in the books, etc. Accordingly, some of the stocks in the books were reflected at higher side and some of the stocks were reflected at lower side - The department proceeded on the assumption that the shortage in books stock due to accounting errors is an actual shortage of stock without conducting any physical stocktaking to show that the shortages reflected in the books were actually the physical shortages too.
Extended period of limitation - HELD THAT:- In the present case the entire demand has been made by the revenue by relying on the book of accounts taking note of the adjustment of stocks of inputs/ work in process/ finished goods as shortages, without producing any evidence of clandestine clearance of the same Further no stock taking has been independently conducted by the revenue to determine any shortages under panchanama - The entire case against the appellants have been made out on the basis of their own book of accounts. There is no evidence adduced to show that the appellants had intention to evade payment of duty by undertaking the review of their account books vis a vis physical inventories at time of shifting their accounts on SAP. Once the book of accounts disclosed the facts completely then proceeding against the appellant by invoking the extended period of limitation cannot be justified - It cannot be held that extended period of limitation as provided under Section 11A will not be available for making this demand as the entire case in respect of denial of CENVAT Credit in respect of raw materials contained in the finished goods and raw materials contained in the finished goods and raw materials, the value of which was adjusted in the books of accounts as well as demand of excise duty in respect of finished goods, the value of which was adjusted in the books of accounts, is made out against the appellants on the basis of the own documents of the appellant, which were in the public domain.
Appeal allowed.
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2022 (12) TMI 1479 - KERALA HIGH COURT
CENVAT Credit - input service or not - service availed by the assessee from Deposit Insurance & Credit Guarantee Corporation (DICGC) - HELD THAT:- The realm in which the controversy operates is after receiving the deposits from public, the assessee is under statutory obligation to insure the deposits received for conducting the bank business and extends under law services on which service tax is paid. The services provided by the assessee are not falling within the negative list. Therefore, there is relatability on a hostile consideration of business in banking between the services availed and services rendered.
The suggestion of revenue would compartmentalise the activities in an odd way only to deny the claim of CENVAT credit and we are not persuaded, firstly, by the argument now canvassed before us and secondly, upon taking note of are the applicable sections in this behalf. The payment of premium on insurance together with service tax for valid and correct reasons has been held by the larger bench in M/S. SOUTH INDIAN BANK VERSUS THE COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX-CALICUT [2020 (6) TMI 278 - CESTAT BANGALORE] holding that The insurance service provided by the Deposit Insurance Corporation to the banks is an “input service“ and CENVAT Credit of service tax paid for this service received by the banks from the Deposit Insurance Corporation can be availed by the banks for rendering output services“.
The substantial questions raised are not tenable, and the findings recorded by the larger bench have already considered these issues - the questions raised in the appeals are answered against the revenue and in favour of the assessee - appeal dismissed.
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2022 (12) TMI 1463 - CESTAT MUMBAI
Availing wrongful SSI benefit - resorting to the incorrect valuation of the goods cleared - electrical accessories, bells, chokes and street light fixtures - relevant date for assignment of ttrademark - possession of registered trademark - HELD THAT:- The trade mark No. 622155 KALKI registered in the name of Shri Mohanlal Gosar Gosrani and Smt. Hemlata Gosrani has been assigned in the name of Shri Chandrakant Gosrani and this fact has been duly intimated in the affidavit filed before Registrar of Trade Marks, Mumbai. Affidavit of 11.05.2011 also refers to the earlier deed and says that it was assigned on 06.05.2011. Reliance by Commissioner on the affidavit of 2011 to deny the fact of assignment of the trade mark in the name of the appellant on 06.05.2011 is contrary to the facts.
From the perusal of the certificate of registration it is clear that the brand name KALKI was registered in the name of the appellant from 01.07.2009 - Commissioner has given no plausible reason for denying SSI exemption.
Only during the financial year 2009-10 appellant had crossed the exemption limit as provided in terms of Notification No.8/2003-CE dated 01.03.2003. Accordingly central excise duty is demandable only for the said year and value of clearances which is beyond the exemption limit of Rs.1.5 crores.
The total duty demand and interest and penalty under Section 11AC for the duty so short paid would be within the amount already deposited and appropriated by the Commissioner by the impugned order. Learned counsel has undertaken not to claim any refund in respect of the amount of Rs.3,00,000/- deposited and appropriated by the Commissioner - after allowing the benefit of Notification No.8/2003-CE dated 01.03.2003, the appeal is partly allowed.
Appeal allowed in part.
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2022 (12) TMI 1437 - CESTAT KOLKATA
Levy of penalty - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Discharge Certificate of SVLDRS-4 - HELD THAT:- The Tribunal in the case of P.B. VYAS VERSUS COMMR. OF CENTRAL EXCISE, MUMBAI-III [2021 (3) TMI 1305 - CESTAT MUMBAI] has held that insistence of payment of penalty by a co-noticee, when the main party has settled the issue under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, defeats the spirit of the scheme itself.
The penalty imposed on the Accountant, Mr. Sasthi Charan Banerjee being a co-noticee, is set aside - Appeal disposed off.
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2022 (12) TMI 1408 - CESTAT MUMBAI
Levy of penalty - payment of redemption fine missed out - dispute under the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 already settled - present Appellant is the Director of the company - HELD THAT:- On perusal of the Order-in-Original it is noticed that negligence in general is attributed to the conduct of the present Appellant. This being the allegations and having regard to the fact that the present Appellant’s declaration under the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 having been given a lawful consideration, he would have paid nil penalty in view of the relief available to him under Section 124(i)(b) of the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules 2019, we are of the considered view that even after failure on the part of the Appellant to avail the benefits of the scheme in its totality in view of Board Circular No. 1071/4/2019- CX.8 dated 27.08.2019 and consistent decisions of this Tribunal, two of which are P.B. VYAS VERSUS COMMR. OF CENTRAL EXCISE, MUMBAI-III [2021 (3) TMI 1305 - CESTAT MUMBAI] and M/S EXOTICA HOUSING PVT. LIMITED VERSUS COMMISSIONER, CENTRAL EXCISE, CUSTOMS, GOODS AND SERVICE TAX, NEW DELHI. [2020 (2) TMI 1697 - CESTAT NEW DELHI].
The order of penalty imposed by the Commissioner (Appeals) in respect of the present Appellant is set aside - Appeal allowed.
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2022 (12) TMI 1332 - TELANGANA HIGH COURT
Recovery of Central Excise Duty alongwith interest and penalty - landowners - manufacture of excisable items or not - HELD THAT:- Though the petitioners became owners of the subject land, they cannot be construed as manufacturers of the excisable goods in the plant and machinery which belonged to respondent No.4 out of which the excise duty arose. This issue is squarely covered by the decision of the Supreme Court in M/S. RANA GIRDERS LTD. VERSUS UNION OF INDIA & OTHERS [2013 (8) TMI 540 - SUPREME COURT]. That was a case where land belonging to the manufacturer was purchased in auction sale. When similar demand notice was issued, the same came to be challenged by the auction purchaser. Notice was issued to the auction purchaser because the borrower had failed to discharge the excise duty liability. In Rana Girders Ltd, Supreme Court had considered two earlier decisions in MACSON MARBLES PVT. LTD. VERSUS UNION OF INDIA [2003 (11) TMI 71 - SUPREME COURT] and UNION OF INDIA VERSUS SICOM LTD. [2008 (12) TMI 53 - SUPREME COURT] and thereafter held UPFC being a secured creditor had priority over the excise dues. We further hold that since the appellant had not purchased the entire unit as a business, as per the statutory framework, he was not liable for discharging the dues of the Excise Department.
Statutory liabilities arising out of the land and building could be in the form of the property tax or other types of cess relating to property, etc. Likewise, statutory liability arising out of the plant and machinery could be the sales tax, etc. payable on the said machinery. As far as dues of the Central Excise are concerned, they were not related to the said plant and machinery or the land and building and thus did not arise out of those properties. Dues of the Excise Department became payable on the manufacturing of excisable items by the erstwhile owner, therefore, these statutory dues are in respect of those items produced and not the plant and machinery which was used for the purposes of manufacture.
Following the decision of the Supreme Court in M/S. RANA GIRDERS LTD. VERSUS UNION OF INDIA & OTHERS [2013 (8) TMI 540 - SUPREME COURT] as well as of this Court in GOPAL AGARWAL VERSUS THE COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, HYDERABAD [2015 (2) TMI 607 - ANDHRA PRADESH HIGH COURT], impugned notice dated 02.11.2004 issued by respondent No.3 is hereby set aside. However, it would be open to respondents No.1, 2 and 3 to take such steps as may be permissible in law for recovery of outstanding excise duty from respondent No.4 (M/s. Chemo Steels Private Limited).
Petition allowed.
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2022 (12) TMI 1331 - TELANGANA HIGH COURT
Constitutional Validity of provisions of Rule 5 of the Hot Re-rolling Mills Annual Capacity Determination Rules, 1997 - ultra vires the provisions of Section 3A of the Central Excise and Salt Act, 1944 or not - violative of Article 14 of the Constitution of India or not - HELD THAT:- It has been brought to the notice of this Court that the issue involved in the present writ petition is covered by the decision of the Supreme Court in COMMISSIONER OF C. EX. & CUSTOMS VERSUS VENUS CASTINGS (P) LTD. [2000 (4) TMI 37 - SUPREME COURT] where it was held that If the entire enactment is read as a whole indicates the purpose and that purpose is carried out by the rules, the same cannot be stated to be ultra vires of the provisions of the enactment. Therefore, it is made clear that the manufacturers, if they have availed of the procedure under Rule 96ZO(3) at their option, cannot claim the benefit of determination of production capacity under Section 3A(4) of the Act which is specifically excluded.
The present writ petition is disposed off.
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2022 (12) TMI 1330 - CESTAT NEW DELHI
CENVAT Credit - ammonia, intermediate products - common inputs/ input services used in manufacture of exempted and dutiable goods - non-maintenance of separate records - reversal of proportionate credit under rule 6(3A) of the CENVAT Credit Rules, 2004 - HELD THAT:- The issue in M/S CHAMBAL FERTILISERS AND CHEMICALS LIMITED VERSUS THE COMMISSIONER, CENTRAL EXCISE AND CENTRAL GOODS & SERVICE TAX, UDAIPUR (RAJASTHAN) [2022 (11) TMI 644 - CESTAT NEW DELHI] arose out of two show cause notices for issued the previous period on the same ground that the appellant had availed excess CENVAT credit by including the value of urea and single super phosphate while computing proportionate credit. It was held in the case that we find that the appellant has correctly reversed proportionate amount of Cenvat credit reckoning the value of the urea removed instead of reckoning the intermediate product ammonia which has gone into the manufacture of such urea.
The appellant had correctly reversed the proportionate amount of CENVAT credit - Appeal allowed - decided in favor of appellant.
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2022 (12) TMI 1295 - CESTAT MUMBAI
Process amounting to manufacture or not? - whether ‘aluminium dross and skimming’ arising in the course of manufacture is excisable after 10th May 2008? - HELD THAT:- It is seen from the decision of the Hon’ble High Court of Bombay in HINDALCO INDUSTRIES LIMITED VERSUS THE UNION OF INDIA, CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, THE COMMISSIONER OF CENTRAL EXCISE [2014 (12) TMI 657 - BOMBAY HIGH COURT] that dutiability of the impugned goods, which had been held by the Tribunal to be excisable even after the amendment inserting Explanation in section 2(d) of Central Excise Act, 1944 with effect from 10th May 2008, did not find favour in the light of several decisions.
In the light of the decision of the Hon’ble High Court of Bombay in their own matter on the very same impugned goods in HINDALCO INDUSTRIES LIMITED VERSUS THE UNION OF INDIA, CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, THE COMMISSIONER OF CENTRAL EXCISE [2014 (12) TMI 657 - BOMBAY HIGH COURT], which was affirmed by the Hon’ble Supreme Court in UNION OF INDIA VERSUS HINDALCO INDUSTRIES LIMITED [2019 (3) TMI 1933 - SC ORDER] holding that nothing survives for consideration in these Special Leave Petitions and the Civil Appeal. The Special Leave Petitions and the Civil Appeal are dismissed.
The impugned orders do not survive and accordingly are set aside to allow the appeals - Appeal allowed.
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2022 (12) TMI 1190 - BOMBAY HIGH COURT
Maintainability of appeal - appropriate forum - classification of services - rate of tax - appellable before this court or under section 35L of the Excise Act which appeal would need to be filed before the Apex Court - HELD THAT:- The Apex Court in the case of NAVIN CHEMICALS MFG. & TRADING CO. LTD. VERSUS COLLECTOR OF CUSTOMS [1993 (9) TMI 107 - SUPREME COURT] has decided that classification issue is an issue of rate of duty and /or value of goods for the purposes of assessment.
The Hon’ble Supreme Court having decided that classification issue in Navin Chemicals Manufacturing and Trading Company Limited Vs. Collector of Customs in an issue of rate of duty and for value of goods for the purposes of assessment, the same is binding on us. Therefore, in view of section 35G(1), which specifically prohibits an appeal being entertained by this Court, if it is an order of the Tribunal relating amongst other things to the determination of any question having arisen on account of “rate of duty” or the “value of goods” for the purposes of assessment, this Court would not have jurisdiction.
This appeal is not maintainable before this court and the course of action available to the appellant is to file an appeal before the Supreme Court under section 35L(1)(b) of the Excise Act - Appeal disposed off.
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2022 (12) TMI 1189 - CESTAT AHMEDABAD
Refund claim of the amount of pre- deposit under section 11 B read with section 35 F of the Central Excise Act 1944, instead of availing credit suomoto under Cenvat Credit Rules, 2004 - HELD THAT:- The appellant have suo-moto re-credited an amount of Rs 3,75,000/- for which the appellant had given the bank guarantee at the time of provisional release of the seized goods. This amount was subsequently appropriated against confiscation of the seized goods ordered by the Assistant Commissioner vide OIO dated 30.09.2005 therefore, the amount of bank guarantee has been converted to redemption fine against the confiscation of the goods. On succeeding in the appeal before the Tribunal the appellant was supposed to file a refund claim for refund of the amount of redemption fine. Whereas the appellant have taken the suo-moto re-credit as cenvat credit. As per the cenvat credit rules, an assessee can take the cenvat credit of any duty paid on the inputs used in the manufacture of final product cleared on payment of duty - In the present case the amount of redemption fine is not eligible as cenvat credit as the same is not a duty which was paid on any input received by the appellant. The right course of action about refund of the amount of bank guarantee adjusted against the redemption fine is to file a formal refund claim.
The appellant is otherwise eligible to claim the refund of Rs 3,75,000/- from the department in terms of section 11 B of the Central Excise Act,1944. Since the appellant have followed the wrong procedure by re-crediting the amount of cenvat credit but otherwise the appellant is prima facie eligible for refund, The period involved in the present proceeding right from taking re-credit till the filing of refund claim is reduced for the purpose of limitation as prescribed under section11 B. The appellant has liberty to file a formal refund claim under section 11 B within three months from the date of this order.
Appeal disposed off.
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2022 (12) TMI 1188 - CESTAT AHMEDABAD
Utilization of CENVAT Credit - basic excise duty for payment of education cess and secondary and higher education cess - HELD THAT:- The issue is no longer res-integra in the light of the various judgments cited by the learned counsel for the appellant. Particularly in view of the judgment of Jurisdictional High Court of Gujarat in the case of COMMISSIONER, CENTRAL EXCISE, CUSTOMS & SERVICE TAX, VAPI VERSUS M/S MADURA INDUSTRIES TEXTILES [2013 (1) TMI 352 - GUJARAT HIGH COURT] wherin it was held that the benefit of utilization of credit of basic excise duty for payment of education cess is to be allowed.
The utilization of cenvat credit of basic excise duty for payment of education cess and secondary and higher education cess is correct and legal.
Appeal allowed.
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2022 (12) TMI 1187 - CESTAT MUMBAI
Wrongful availment and utilization of CENVAT Credit - recovery alongwith interest and penalty - process amounting to manufacture or not - HELD THAT:- As no manufacturing activity was undertaken by them, their premises was simply a godown used for dispatch of the finished goods. The only activity that was being undertaken in the said godown is repacking and relabeling of excisable goods and dispatch thereof. These activities undertaken in respect of the goods of Chapter 39 & 40 did not amount to manufacture. Accordingly the appellant was neither required to pay any central excise duty nor entitled to any Cenvat credit in respect of these goods.
The contention as raised by the Revenue that the activities undertaken by the appellant do not amount to manufacture, but still undisputedly the appellant has paid the duty in respect of the finished goods. Having accepted the payment of duty, Revenue could not have denied the Cenvat credit availed by the appellant.
Appeal allowed.
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2022 (12) TMI 1186 - CESTAT NEW DELHI
Rejection of refund claim - time bar under the provisions of Section 11 (B) of the Central Excise Act - HELD THAT:- The appellant has attempted to increase their refund claim pursuant to remand in the first round by the Commissioner (Appeals) in February, 2019. It is held that the claim had become time barred for the period 1.7.2012 to 30.06.2013, as has been held by the Commissioner (Appeals).
Thus, there being no merits in this appeal, the same is dismissed.
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2022 (12) TMI 1141 - CESTAT AHMEDABAD
Non-payment of Central Excise Duty on new packing machines added during the relevant month - non-payment on the ground that the number of old packing machine have been replaced with equal number machines and the total number of installed packing machines remained unchanged during the said relevant months - contravention of statutory provisions of Rule 6(4),7,8,9 and 13 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - HELD THAT:- As regard the demand of Rs. 1,20,12,500/- we find that the case of the department is that provisions of Rule 8 nowhere provide the pro-rata payment of duty on the basis of date of installation of new Machines. As per department Appellant was required to pay duty for the whole month. The Learned Commissioner in impugned order also held that the Appellant was not entitled for the abetment of duty in case of non-production of the notified goods as provided in Rule 10. It should be appropriate at this juncture to re-visit the legal provisions.
In the present matter undisputedly appellant had followed the procedure, as the appellant filed declaration regarding change of number of packing machines and the declaration was accepted by the proper officer after due verification, the declaration was accepted and the annual capacity of the machine was fixed by the competent jurisdictional officers and the appellant accordingly paid the duty. The same is also clear from the following correspondences. There is no misdeclaration found by Revenue on the part of appellant regarding number of machines used for manufacture of notified goods. In such circumstance demands of duty over and above the duty determined by the Jurisdictional officer legally not correct.
It is clear the duty is payable on the number of installed machines which are deemed to be operating machines. In the present matter the number of installed machines in the month remained the same before and after replacement of the machines. Therefore, the demand confirmed by the Learned Commissioner in instant case is legally not correct.
In the present matter Revenue cannot demand duty unless the orders of determination of production capacity based duty has been reviewed. In the present case, it is seen that the Appellant after following the proper procedure paid the duty assessed by the Jurisdictional Deputy Commissioner fixing annual capacity of production after the replacement of packing machines, however no action was taken by the department to modify these orders by filing review application or appeal. On this ground also demand is prima facie not sustainable.
Appeal allowed.
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2022 (12) TMI 1140 - CESTAT MUMBAI
Claim for monetization of the restored CENVAT credit as approved by the Hon’ble High Court of Karnataka in circumstances of closure of the factory of the appellant - operation of rule 8(3A) of Central Excise Rules, 2002 (as existing then) withdrawing privilege of consolidated payment at the end of each month as well as of discharge through CENVAT credit till the default is made good along with interest - HELD THAT:- The duty liability, on which CENVAT credit is availed, is nothing but the leviability discharged in accordance with section 3 of Central Excise Act, 1944 on clearances effected by the supplier - manufacturer and refund of that amount would be tantamount to negating the correctness of that levy. CENVAT Credit Rules, 2004 does not, for this reason, envisage any erosion of credit availed except by utilization towards duty liability under rule 3(4) thereof, by refund under rule 5 thereof or by recovery for ineligible availment under rule 14 thereof. To accede to the plea of the appellant herein would be to discard the leviability of duty/tax on manufacture/supply of goods/services procured by the appellant.
The appeal lacks merit and, for that reason, is dismissed.
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2022 (12) TMI 1108 - CESTAT NEW DELHI
Classification of goods - nonwoven felt fabrics falling under Central Excise Tariff Heading 5602 manufactured by it or not - eligibility for exemption Notification No. 29/2004-CE as amended by Notification No. 07/2012-CE - extended period of limitation - HELD THAT:- Exemption Notification No. 29/2004 is available for goods falling under Chapter 56 made of cotton and not to any other textile material. Undisputedly, the products of the appellant have 56 per cent cotton and 44 per cent of several other materials such as Acrylic, Polyester, wool, nylon, viscose as was found after test by CRCL. It has already been held by this Tribunal in MARK SPLENDOUR NONWOVENS P. LTD. VERSUS COMMR. OF C. EX., JAIPUR & ALWAR [2017 (10) TMI 1432 - CESTAT NEW DELHI] that the appellant is not entitled to the benefit of this exemption for the same products.
Extended period of limitation - HELD THAT:- These are irrelevant because no extended period of limitation has been invoked in either of these two appeals. As far as the appellant’s submission regarding classification of textile materials by the predominant material by weight is concerned, we find that the dispute is not regarding the classification of the products but regarding the exemption notification. The General Rules of Interpretation must be applied to decide classification and they cannot be used to decide the eligibility to an exemption notification. The benefit of the exemption notification is available to goods which are made wholly of cotton whereas in this case, undisputedly the products are not made wholly of cotton.
There are no force in the arguments of the appellant. Respectfully following the decision of this Tribunal in the appellant’s own case for the earlier period, we hold that the appellant is not entitled to the benefit of the exemption notification.
Appeal dismissed.
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2022 (12) TMI 1107 - CESTAT MUMBAI
Interest on differential duty- captive consumption - revenue neutrality - revised CAS-4 prepared by the cost accountant - grievance of the appellant stems from the claim that the provision for charging interest under section 11AB of Central Excise Act, 1944 is triggered only when suppression, fraud or misrepresentation has caused evasion of duty - HELD THAT:- It is clear that the decision in COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS M/S SKF INDIA LTD. [2009 (7) TMI 6 - SUPREME COURT] has firmly established the principle that arising from the liability for duties of central excise devolving on the assessee at the price existing at the time of clearance, notwithstanding subsequent receipt of differential, interest under section 11AB of Central Excise Act, 1944 would have to be discharged for termination of proceedings under section 11A of Central Excise Act, 1944 - On the other hand, in COMMR. OF C. EX., BANGALORE-III VERSUS BHARAT HEAVY ELECTRICALS LTD. [2010 (4) TMI 439 - KARNATAKA HIGH COURT], the principle established was that section 11AB of Central Excise Act, 1944 could not be invoked independently of section 11A of Central Excise Act, 1944 rendered superfluous owing to prompt discharge of tax liability on escalation of price.
In the impugned proceedings, with confirmation of duty liability under section 11A of Central Excise Act, 1944, the claim of factual matrix identical with that in re Bharat Heavy Electricals Ltd does not find favour. Therefore, the liability to pay interest on duties short-paid at the time of clearance of goods for captive consumption does not get erased. The interest liability had not been discharged at the time of payment of differential duty and, hence, the essential precondition for dropping of further proceedings had not been complied with. Inevitably, the confirmation of differential duty necessarily has interest liability appended to it.
Appeal dismissed.
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2022 (12) TMI 1049 - CESTAT MUMBAI
Demand of differential duty - reliance on statement of employee - ‘significant’, statement - Classification of goods manufactured and cleared by appellant - presence of fertilizing element - Vasundhara - Jalpurti - Purti - Rasna Chelated - Rasna Plus - other fertilisers - examination of statement / employee in accordance with section 9D of Central Excise Act, 1944 - HELD THAT:- It is seen from the test report there is no doubt about the presence of the said fertilizing elements in the impugned goods. Though it is the contention on behalf of Revenue that the statement of the employee is clear enough evidence that presence is questionable which, according to Learned Senior Counsel, required that the statement of the said employee, being in total variance with the test reports that indicate presence of the fertilizing elements, should be discarded. It is his submission that the relevancy of the said statement had not been examined by the adjudicating authority in the manner mandated in section 9D of Central Excise Act, 1944.
Section 9D of Central Excise Act, 1944 appears to have been observed in its breach and must be remedied. To enable that, we set aside the impugned order and remand the matter back to the original authority for subjecting the statement of Mr Sanjay Shembekar, considered to be of particular relevance in determining the outcome of the impugned order, to the prescriptive mandate of section 9D of Central Excise Act, 1944. Needless to say, the adjudicating authority shall afford the appellant herein sufficient opportunity, in accordance with the principles of natural justice, to rebut the contents of the show cause notice both by submission as well as through documents.
Appeal allowed by way of remand.
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2022 (12) TMI 1048 - CESTAT NEW DELHI
Refund by way of re-credit in cenvat credit account - amount was paid as pre-deposit - transition to GST regime - HELD THAT:- The Commissioner (Appeals) have erred in dismissing the appeal, as appellant was before the Adjudicating Authority for correction of mistake of law in the adjudication order. Thus, there is no deliberate delay and the appellant have filed appeal within thirty days from the date of receipt of communication dated 09.04.2018 of the Adjudicating Authority. Secondly, I find that the order of the Court below directing to take credit of Rs. 6,60,016/- in the cenvat account vide Order-in-original dated 16.08.2017, is directly in conflict with the transitional provision, particularly in Section 142(6)(a) of the CGST Act.
The order of the Court below is modified to the effect that the refund of the amount of Rs.6,60,016/-, which was a pre-deposit during pendency of appeal, be refunded in cash to the appellant-assessee alongwith interest from the date of deposit till the date of refund at the prescribed rate under Section 35FF of the Central Excise Act - appeal allowed.
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