|
Advanced Search Options
Central Excise - Case Laws
Showing 1 to 20 of 1370 Records
-
2023 (12) TMI 1303
CENVAT Credit - Inputs used for repairing and maintenance of the plant and machinery, as capital goods. - eligible inputs for availing credit under the relevant Modified Valued Added Tax (Modvat) and Central Value Added Tax (Cenvat) Credit Rules, as amended from time to time or not - HELD THAT:- In view of the settled legal position, the interpretation of the expression “used in or in relation to manufacture” is of a very wide import and takes within its scope and ambit all items used in the process of manufacture whether directly or indirectly and whether contained in the final product or not. The items used for maintenance of plant and machinery are also items used in the manufacture of finished goods. Hence, credit on the items used for maintenance, repair, upkeep or fabrication of plant and machinery are admissible to the assessees.
The credit on welding electrodes and other items such as jointing sheets, SS plates etc. used for maintenance, repair, up-keep or fabrication of plant and machinery are admissible to the assessees.
Appeal allowed.
-
2023 (12) TMI 1290
Eligibility for refund/ self-credit - Area-based exemption under Notification No.56/2002 dated 14.11.2002 as amended - Department was of the opinion that under Section 3, no refund/ self-credit was available as the said Cesses have not been exempted under the Notification No.56/2002.
The impugned order considers the self-credit taken by the appellants as “erroneous” credit and confirms the demand of the same in terms of Section 11A of Central Excise Act, 1944 along with interest and penalty under Section 11AC ibid.
HELD THAT:- The impugned order cannot be sustained and is accordingly set aside. Hence, the appeal is allowed.
-
2023 (12) TMI 1240
Refund claim - refund rejected solely on the ground that the TR6 challan, evincing payment of duty, had not been furnished - HELD THAT:- The issue of documentation prescribed under section 11B of Central Excise Act, 1944 for claiming of refunds came before the Tribunal in MAHARASHTRA STATE ELECTRICITY BOARD VERSUS COMMR. OF C. EX., NAGPUR [2004 (4) TMI 368 - CESTAT, MUMBAI] and it was held therein that The respondent has no case that the appellants have claimed refund of duty unduly or with any oblique purpose. The appellant is a public body and it can have no oblique motives. The orders of the lower authorities are set aside in so far as the refund claims in question are concerned. The claims are allowed.
The issue is the same as that in the dispute of the appellant for similar refund. It would appear that the lower authorities had erred in insisting upon the original document as proof of discharge of duty liability even though available with the central excise authorities - the impugned order is set aside and the application restored to the original authority for fresh determination of the application for sanction in consequence of judicial determination of non-excisability.
The appeal is allowed by way of remand.
-
2023 (12) TMI 1239
Levy of Central Excise Duty - inclusion of sales tax concession retained by the assesses in the assessable value or not - extended period of limitation - penalty - HELD THAT:- The issue is no more res integra as the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS [2014 (3) TMI 42 - SUPREME COURT], has held that the sales tax concession retained by the assesses is required to be added in the assessable value for the purpose of levy of Central Excise duty. By relying on the above decision of the Hon’ble Supreme Court, we hold that the sales tax concession retained by the Appellant is required to be added in the assessable value for the purpose of levy of Central Excise duty.
Since the Appellant has not collected the duty separately from the customers, the amount collected is to be treated as inclusive of duty - the demand for the normal period is to be computed by taking the amount collected as cum-duty.
Penalty - HELD THAT:- The appellant cannot be faulted for not including the same in the assessable value. In the impugned order, the adjudicating authority while agreeing that extended period not invocable in this case, imposed penalty equal to the duty confirmed under Section 11AC of the CEA, 1944 - the adjudicating authority has not given any proper finding for imposing penalty under Section 11AC. Accordingly, the penalty imposed under Section 11AC not tenable.
Extended period of limitation - HELD THAT:- In the present case, it is observed that the Adjudicating Authority has failed to show any positive act of suppression on the part of the Appellant. The details of VAT collected and retained by the Appellant are reflected in the audited Profit & Loss account and balance sheet of the impugned periods. Accordingly, by following the above Circular issued by the Board, it is held that extended period not invocable in this case and for the same reason penalty under Section 11AC of the CEA, 1944 also not imposable.
The appeal is disposed by way of remand for calculating the duty, payable for the normal period of limitation, with consequential relief, if any, as per law.
-
2023 (12) TMI 1238
Reversal of cenvat credit - used/rejected capital goods on which Cenvat credit has not been taken are cleared as waste and scrap - transaction value as per Rule 3(5A) of the Cenvat Credit Rules - HELD THAT:- On going through the provisions of Rule 3(5) and 3(5A) of the Cenvat Credit Rules. A perusal of these Rules 3(5) and 3(5A) reveal that the expression "the capital goods" available in Rule 3(5A) refers to the capital goods on which Cenvat credit has been taken - Rule 3(5) provides for a situation where such capital goods are removed “as such” from the factory or premises of the provider of output service. Rule 3(5A) deals with a situation when such capital goods are cleared as "waste and scrap". It is apparent that both the provisions of Rules 3(5) and (5A), are concerned with capital goods on which Cenvat credit has been taken.
As the Appellant has not availed any credit on these rejected capital goods cleared as scrap, we hold that the provisions of Rule 3(5) and 3(5A) are not applicable in this case - the demand of duty confirmed in the impugned order is not sustainable. Since, the demand of duty itself is not sustainable, the question of demanding interest or imposing penalty does not arise.
The impugned order set aside - appeal allowed.
-
2023 (12) TMI 1237
CENVAT Credit - inputs or not - wielding electrodes used in their factory premises towards repairs and maintenance activities - HELD THAT:- The Rajasthan High Court in the case of HINDUSTAN ZINC LTD. VERSUS UNION OF INDIA [2008 (7) TMI 55 - RAJASTHAN HIGH COURT] has held the expression “in the manufacture of goods” should normally encompass entire process carried on by the dealer, of converting raw materials into finished goods, where any particular process, or activity, is so integrally connected with the ultimate production of the goods, but for that process, manufacturing, or processing of the goods would be commercially inexpedient, goods required in that process would, fall within expression “in the manufacturing of goods”.
The Chhattisgarh High Court in the case of CST, Bilaspur Vs. Singhal Enterprises Pvt. Ltd. [2017 (7) TMI 1112 - CHHATTISGARH HIGH COURT] has held Welding Electrodes used in the manufacturing process are considered as inputs.
Since the present issue is squarely covered by the above decisions of the Hon’ble High Court, respectfully following them, the present Appeal is allowed.
-
2023 (12) TMI 1209
Levy of penalty - wrongly passing on the Modvat Credit - HELD THAT:- The Tribunal found no reason to interfere with the Order-in-Original bearing in mind the fact that while the appellant was purchasing scrap from Maruti Udyog at the rate of Rs. 9000/- − 10000/- MT, it was selling the same at the rate of Rs. 7000/- − 9000/- MT. Although before the original authority, the appellant appears to have set up a case of having graded the scrap according to quality and value, the said Authority had on a due appreciation of the evidence led, found no basis to accept that explanation and consequently proceeded to levy the penalties.
The issues that are raised principally relate to an appreciation of evidence and since no question of law appears to arise, the appeal shall stand dismissed.
-
2023 (12) TMI 1208
CENVAT Credit - trading activities/exempt services - Management Consultancy Service - service is used exclusively in or in relation to the manufacture of exempted goods or providing exempted service - absence of ISD registration at the time of availing credit - extended period of limitation.
CENVAT Credit - trading activities/exempt services - Management Consultancy Service - service is used exclusively in or in relation to the manufacture of exempted goods or providing exempted service - HELD THAT:- As far as admissibility of cenvat credit of trading activity, the Hon’ble Madras High Court in Ruchika Global Interlinks [2017 (6) TMI 635 - MADRAS HIGH COURT] held Having regard to the rule, position and given the admitted fact that no separate accounts were maintained by the appellant, with regard to the taxable and non-taxable services, clause (c) of sub-rule (3) of Rule 6 of 2004 Rules would apply.
Further, the Hon’ble Delhi High Court in Lally Automobiles Pvt. Ltd. [2018 (7) TMI 1679 - DELHI HIGH COURT] held In the present case, the assessee’s argument that there is no mechanism to reverse credit, once taken, in the opinion of this Court, cannot be accepted. The assessee was well aware of the exact nature and extent of its service tax liability. It was also aware of the eligible service tax inputs. Therefore, when it did claim successfully and unchallenged input credits in respect of activities that were not subjected to service tax levy, it was aware that the claim was excessive and could not be justified.
Extended period of Limitation - HELD THAT:- On the issue of invoking extended period of limitation on similar circumstances, lordships of Delhi High Court held that Being conscious of its trading activity and that it was not liable to service tax (since it did not include the amounts earned from that business, in its returns) meant that the assessee was aware of what it was doing. It cannot now take shelter under the plea that non-trading activity was expressly exempt from claiming credit, in 2011. That amendment made no difference, given that trading was never taxable under the Finance Act, 1994. In these circumstances, the Revenue was justified in invoking the extended period of limitation in this case - Thus, the confirmation of demand with interest by the learned Commissioner invoking extended period of limitation on cenvat credit availed on trading activity is upheld.
CENVAT Credit - absence of ISD registration at the time of availing credit - HELD THAT:- The issue is also covered by the judgment of the Hon’ble Karnataka High Court in the case of Hinduja Global Solutions Ltd, [2022 (4) TMI 71 - KARNATAKA HIGH COURT]. Their Lordships following the judgment of Hon’ble Gujarat High Court and Madras High Court, held that cenvat credit cannot be denied to the assessee prior to its registration as an ISD, since the same is procedural irregularities - the appellant is entitled to avail cenvat credit of Rs.15,83,168/-.
Thus, the impugned order is modified to the extent of confirming inadmissible cenvat credit of Rs.79,22,225/- attributable to trading activity and applicable interest of Rs.15,38,789/- paid on the said credit amount; since the cenvat credit and applicable interest is paid much before the issuance of show-cause notice, the appellant is entitled for the benefit of 25% of penalty imposed under Section 11AC of the Central Excise Act read with Rule 15(4) of CENVAT Credit Rules, 2004 - demand of cenvat credit of Rs.15,83,168/- confirmed with interest and equivalent penalty before ISD registration is hereby set aside.
Appeal disposed off.
-
2023 (12) TMI 1207
Calculation of Excise duty - includability of the sales tax concession retained by the Appellant in the assessable value for the purpose of levy of Central Excise duty - suppression of facts or not - extended period of limitation - penalty - HELD THAT:- The Appellant has not suppressed any information from the department. There were decisions of the Tribunals that the sales tax concession retained by the assesses is not required to be added in the assessable value for the purpose of levy of Central Excise duty. Thus, it is observed that the appellant cannot be faulted for not including the same in the assessable value. As there is no evidence of suppression of facts available on record, it is held that the demand confirmed by invoking the extended period is liable to be set aside.
In the present case, it is observed that the Adjudicating Authority and the Appellate Authority has failed to show any positive act of suppression on the part of the Appellant. The details of VAT collected and retained are reflected in the audited Profit & Loss account and balance sheet of the impugned periods. Therefore, we hold that extended period of limitation as provided under section 11A(4) of the Central Excise Act, 1944 cannot be invoked for recovery of the short paid duties. The Circular issued by the Board also supports this view. Following the above Circular issued by the Board, the extended period cannot be invoked in this case to demand duty. Accordingly, penalty also not imposable in this case.
The appeal is disposed by way of remand for calculating the duty, payable for the normal period of limitation, with consequential relief, if any, as per law.
-
2023 (12) TMI 1206
Exemption to goods manufactured in a factory workshop and used for the maintenance of machinery installed in the factory - Exemption to capital goods and inputs captively consumed within the factory of production - applicability of N/N. 65/95-CE and 67/95-CE - denial of benefit on the ground that acetylene gas has not been manufactured in the workshop - denial also on the ground that acetylene gas has been used for repair and maintenance of machineries that are not used for the manufacture of final goods, the exemption will not be applicable.
HELD THAT:- The Appellant claimed the exemption of captively consumed acetylene gas under the Notification 65/95 as well as under 67/95. The adjudicating authority has denied the exemption for the acetylene gas consumed within the factory for repair and maintenance of railway track, railway wagon, loco and in certain shops and departments for repair and maintenance of machineries under the Notification 65/95. However, it is observed that they are eligible for the exemption under the notification 67/95, since the said railway track, rail wagons, and locomotives are integral to the manufacture of the goods - The inability to transport the inputs and intermediate products in the absence of rail traffic will cause stoppage of production and can also result in damage of the plant and machinery.
The said railway track, rail wagons, and locomotives are integral to the manufacture of the goods of the Appellant and are therefore they can be considered as machineries installed in the factory for the manufacture of the goods. It is observed that Notification 67/95 exempts from payment of duty all goods specified therein manufactured in a factory and used within the factory of production in or in relation to manufacture of final products. The scope of this notification is wide enough to cover the acetylene gas manufactured by the Appellant and used in the traffic department for repair and maintenance of railway track, wagons etc., and the acetylene gas used in 26 shops/departments for repair and maintenance of machineries.
The issue of whether railway tracks used in the plant form a part of manufacture is no longer res-integra since the Hon’ble Supreme Court in the case of M/S JAYASWAL NECO LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2015 (4) TMI 569 - SUPREME COURT] held the use of railway tracks inside the plant not only form the process of manufacturing, but it is inseparable and integral part of the said process inasmuch as without the aforesaid activity for which railway tracks are used, there cannot be manufacturing of pig iron.
Thus, the use of railway tracks are meant for production of goods. The acetylene gas used in 26 shops/departments for repair and maintenance of machineries was also used in connection with the manufacture of the finished goods for the Appellant - the Appellant is eligible for the benefit of exemption notification no. 67/95-CE. Hence, the demand confirmed in the impugned order by denying the benefit of exemption notifications 65/95 or 67/95 is not sustainable.
The impugned order set aside - appeal allowed.
-
2023 (12) TMI 1143
Service of SCN - Whether the provision of rule 776 of the Manual was adhered to and any notice under section 74-A(1) was given before passing the order? - HELD THAT:- Once the initiation of the proceedings itself is bad, the consequential proceedings automatically fails in the eyes of law. Matter requires consideration.
Learned ACSC may file counter affidavit within a period of four weeks from today. Rejoinder affidavit, if any, may also be filed one week thereafter - List immediately thereafter.
-
2023 (12) TMI 1142
Seeking rectification of alleged mistakes - No finding has been recorded on the appellant’s submission contesting imposition of 100% penalty under section 11AC read with Rule 25 of Central Excise Rules, 2002 - interpretation of Exemption NN 12/2012 dated 17.3.2012 - Extended period of limitation - HELD THAT:- The appellant contested the impugned order on three grounds- (a) that it was eligible to the benefit of the exemption notification; (b) extended period of limitation was wrongly invoked in the confirming the demands; and (c) if the matter is decided against it, CENVAT credit on inputs may be allowed. Insofar as the extended period of limitation is concerned, the appellant listed the findings of the Commissioner and contested them.
In the final order, the confirmation of demands by the Commissioner were upheld. The question of the CENVAT credit was addressed in the Miscellaneous order dated 30.9.2022. Since the confirmation of the demands by the Commissioner were upheld, it was stated in the miscellaneous order dated 30.9.2022 that penalty under section 11AC also needs to be upheld. The ground which is now sought to be raised that since the demands which were confirmed were within the normal periods of limitation, despite the finding of the Commissioner that there was wilful suppression of facts, penalty under section 11AC cannot be invoked was not part of the appeal. The appellant cannot, in the second application for rectification of mistake, now raise a new ground which was not part of the appeal.
Extended period of limitation - HELD THAT:- It needs to be pointed out that while demands for extended period of limitation cannot be confirmed where there is no fraud, collusion, wilful misstatement or suppression of fact, demand for a short period of say, one year, can be confirmed even when these elements of fraud, collusion, wilful misstatement or suppression of facts, etc., are present Nothing prevents confirmation of demands for shorter period even if these elements are present. Having found that these elements were present in the case (as recorded by the Commissioner and reproduced in the appeal), if demands are raised or confirmed for a shorter period, it does not mean that these elements are not established.
There are no error apparent on record - this application for rectification of mistakes is rejected.
-
2023 (12) TMI 1141
Maintainability of appeal - non-prosecution of the case - Matter has been listed quite a number of times in the past and appellant has been abstaining from attending the hearing or seeking adjournment - HELD THAT:- Today the matter on request has been listed for E-hearing as per the request made by the appellants on 06.11.2023. Appellants has abstained without any request for adjournment.
There are no justification for adjourning the matter any further as these appeals have been adjourned more than the prescribed maximum number statutorily provided.
The Appeals are dismissed for non prosecution in terms of Rule 20 of CESTAT Procedure Rules, 1982.
-
2023 (12) TMI 1140
Maintainability of appeal - availability of alternative remedy - Recovery of the Drawback sanctioned u/r 18 of Duty Drawback Rules, 2017 - levy of penalty u/s 17 of the Customs Act, 1962 - HELD THAT:- Undisputedly, the issue involved in the present case is in relation to the goods imported as baggage - From the Section 129A(1) of the Customs Act, 1962 it is evident that the appeal in the present case against the order of Commissioner (Appeals) would not lie before this Tribunal. Accordingly, this appeal is not maintainable before this Tribunal.
Appeal is dismissed as non maintainable - Appellant may pursue the appellate remedy as provided in law.
-
2023 (12) TMI 1139
CENVAT Credit - input services - Catering Service, House Keeping services, Interior Decoration services and Garden Maintenance services used in the manufacturing plant - services such as Catering Service, House Keeping services, Interior decoration services and Garden maintenance service, Construction Service, Repair and maintenance service etc used in guest house and Employee Township - HELD 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 are integrally connected with the business of the manufacturer. Thus, the definition of 'input service' has a wide ambit and extends to all services used in relation to the business / activities relating to business.
In the instant case, the housekeeping services, catering services and interior decoration services are availed at the plant/factory and hence denial of the credit in respect of the said services is not justified.
Housekeeping services - HELD THAT:- These services are very necessary and vital for keeping the factory in good condition. Hence the expenses incurred towards housekeeping services qualify as ‘input service’ under CENVAT credit Rules, 2004 - reliance can be placed in the case of COMMISSIONER OF CENTRAL EXCISE, DELHI-III VERSUS M/S PRICOL LTD. [2015 (12) TMI 1486 - CESTAT NEW DELHI] and BALKRISHNA INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., AURANGABAD [2010 (3) TMI 375 - CESTAT, MUMBAI].
Catering services - HELD THAT:- The factory of the Appellant is in the remote area and thus the Appellant had to supply food to the workers. Therefore, the service of catering as availed by Appellant is in relation to manufacturing activity, since without food it will not be possible for the employees to work in the factory - reliance can be placed in CCE, NAGPUR VERSUS ULTRATECH CEMENT LTD., [2010 (10) TMI 13 - BOMBAY HIGH COURT].
Interior decoration services - HELD THAT:- The appellant has incurred expense towards interior decoration of various office buildings & canteen within the factory premise which is essential for smooth carrying of day to day business activities. Thus, such expenses incurred by the company also qualify as ‘input service’ under CENVAT credit Rules, 2004.
Garden maintenance services - HELD THAT:- In the instant case the Appellant had availed services for maintenance of garden which is essential for the proper functioning and efficiency of a factory, and hence they are eligible for credit as input services - reliance can be placed in BALKRISHNA INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., AURANGABAD [2010 (3) TMI 375 - CESTAT, MUMBAI].
Manpower services - HELD THAT:- In the instant case the Appellant had availed services for manpower service which is essential for the cleaning, organizing canteen of workers, work related to dispensary within the factory to provide instant medical treatment to the worker when required etc. Thus, these activities certainly have nexus with the business of manufacture - reliance can be placed in M/S. JAYPEE SIDHI CEMENT PLANT VERSUS CCE, BHOPAL [2014 (10) TMI 90 - CESTAT NEW DELHI].
Thus, the impugned order denying the Cenvat credit availed on the 'input services' Catering Service, House Keeping services, Interior Decoration services and Garden Maintenance services used in the manufacturing plant, is not sustainable.
Cenvat credit availed on the input services used in relation to the guest house and township situated within the factory premises - HELD THAT:- The Appellant incurred the expenses on account of construction of guest house and township for their employees within the premise of the plant. Due to location of the plant, they are under statutory obligation to provide a colony to the workers of the factory, to maintain the continuity of activity of manufacturing. Thus, having colony within the factory premise became indispensable. Similarly, to accommodate business delegates, consultants who used to visit time to time for verification and inspection of the plant, the guest house facility became necessary - the Cenvat availed by the Appellant were not related to any services acquired for its employees’ personal use, instead those were availed by the Appellant for proper functioning of the factory.
Reliance can be placed in the case of COMMISSIONER OF CUS. & C. EX., HYDERABAD-III VERSUS ITC LIMITED [2011 (11) TMI 516 - ANDHRA PRADESH HIGH COURT] - The Appellant is eligible for the Cenvat credit availed on the input services such as Catering Service, House Keeping services, Interior decoration services and Garden maintenance service, Construction Service, Repair and maintenance service etc used in guest house and Employee Township situated within the factory premises. Accordingly, the impugned order denying such credit to the Appellant is not sustainable.
The Appellant is eligible for the Cenvat credit availed on the 'input services' which are disputed in this appeal - the demand confirmed in the impugned order is set aside. Since the demand itself is not sustainable, the question of charging interest and imposing penalty does not arise - Appeal allowed.
-
2023 (12) TMI 1107
Adjustment of excess amount deposited by the petitioner towards the amount demanded - SVLDR provide for adjustment or not - Circular No. 1074/07/2019-CX dated 12.12.2019 - HELD THAT:- The finding of the writ court is that SVLDR was introduced to provide amnesty and resolution of disputes by making mutual adjustment with regard to the disputed pre-deposit made by the petitioner. It is further held that merely because the assessee has to file a separate declaration for each period, in the absence of a specific bar or prohibition for consolidating or clubbing two cases and making mutual adjustment, it cannot be said that mutual adjustment in respect of the very same assessee in relation to same subject matter or commodity for the two different periods is impermissible.
The petitioner has not claimed refund. Merely for the reason that SVLDR does not provide for adjustment, in view of circular issued by the department, adjustment is permitted. It is to be noted that declarant is always one person and the declarations are for different periods. So any money deposited by a declarant in respect of demand for one period can be adjusted in respect of demand for another period.
There are no infirmity in the impugned order. Hence writ appeal is dismissed.
-
2023 (12) TMI 1106
Clandestine removal - Acoustic Enclosures - manufacture and clearance without payment of duty or the said goods were manufactured on job-work basis by other manufacturers and cleared to the customers directly - relevant period i.e. 01/04/2000 to 04/06/2002 - HELD THAT:- The Revenue could be able to establish that even though the appellant claimed to have manufactured the acoustic enclosures on job work basis from M/s. SBN Engineering Works and M/s. Steel Engineering works, in fact the same were manufactured in their premises during the relevant period and cleared without payment of duty. The claim of the evidence from the stage of procurement of raw-materials, receipt in the factory, manufacture using their labour force adduced by the Department in the demand notice and confirmed in the impugned order by learned Commissioner (Appeals), the owner shifts to the appellant to establish that the goods acoustic enclosures manufactured on job-work basis.
It is found that the submissions advanced by the appellant are of general in nature and devoid of rebuttal of evidences brought on record indicating procurement of raw materials, processing of the same in the factory premises, stock of the glass wool etc. used in the manufacture of acoustic enclosures found in their factory, low conversion charges reflected in the invoice of job-worker etc. overwhelmingly indicate that the acoustic enclosures were manufactured and cleared without payment of duty from their factory.
The appeal of the appellant is rejected and order of the Commissioner(Appeals) is upheld.
-
2023 (12) TMI 1105
Wrongful availment of SSI Exemption - use of brand name ‘BASANT’ owned by another person - ‘BASANT’ is the name inherited by both BMW and the appellant - whether the use of the brand name ‘BASANT-KS’ by suffixing the letters ‘KS’ (abbreviation for Kanwarjit Singh, Partner of the appellant firm) to the inherited name ‘BASANT’ is entirely fortuitous and is not a case of use of brand name belonging to the other person?
HELD THAT:- On an identical issue regarding the brand name ‘BASANT’ this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE & ST, LUDHIANA VERSUS M/S. BASANT PRESSES (INDIA) [2017 (6) TMI 805 - CESTAT CHANDIGARH] had held that the trademark BASANT was being used by BMW and the same even if used by M/s Basant Presses (India), they were still eligible for SSI exemption.
The impugned order denying the benefit of SSI exemption is not sustainable in law - Appeal allowed.
-
2023 (12) TMI 1104
Valuation - includability of the sales tax concession retained by the Appellant in the assessable value for the purpose of levy of Central Excise duty - extended period of limitation - penalty - HELD THAT:- The issue is no more res integra as the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS [2014 (3) TMI 42 - SUPREME COURT], has held that the sales tax concession retained by the assesses is required to be added in the assessable value for the purpose of levy of Central Excise duty. By relying on the above decision of the Hon’ble Supreme Court, it is held that the sales tax concession retained by the Appellant is required to be added in the assessable value for the purpose of levy of Central Excise duty - the demand for the normal period is to be computed by taking the amount collected as cum-duty.
Extended period of limitation - penalty - HELD THAT:- It is observed that there were decisions of the Tribunals that the sales tax concession retained by the assesses is not required to be added in the assessable value for the purpose of levy of Central Excise duty. Thus, the appellant cannot be faulted for not including the same in the assessable value. In the impugned order, the adjudicating authority while agreeing that extended period not invocable in this case, imposed penalty equal to the duty confirmed under Section 11AC of the CEA, 1944 - the adjudicating authority has not given any proper finding for imposing penalty under Section 11AC. Accordingly, the penalty imposed under Section 11AC not tenable - Further, Board has issued Circular No. 1063/2/2018- CX dated 16.02.2018, clarifying acceptance of some of the orders passed by the Hon’ble Supreme Court, High Courts etc, wherein no review petition has been filed - In the said clarification, the order passes by the Hon’ble Supreme Court in the case of Super Synotex has also been included and it has been categorically stated that extended period not invocable in such cases. In the present case, we observe that the Adjudicating Authority has failed to show any positive act of suppression on the part of the Appellant. The details of VAT collected and retained by the Appellant are reflected in the audited Profit & Loss account and balance sheet of the impugned periods. Accordingly, by following the above Circular issued by the Board, the extended period not invocable in this case and for the same reason penalty under Section 11AC of the CEA, 1944 also not imposable.
Appeal allowed in part.
-
2023 (12) TMI 1103
Exemption under N/N. 67/95-CE - Clearances of acetylene gas for captive consumption - benefit denied merely on the ground that the acetylene gas is not used in the repair and maintenance of machinery directly, rather the same is being used via intermediate products - HELD THAT:- Notification 67/95 exempts from payment of duty all goods specified therein manufactured in a factory and used within the factory of production in or in relation to manufacture of final products. The scope of this notification is wide enough to cover the acetylene gas manufactured by the Appellant and used in the traffic department for repair and maintenance of railway track, wagons etc., and the acetylene gas used in 30 shops/departments for repair and maintenance of machineries.
The issue of whether railway tracks used in the plant form a part of manufacture is no longer res-integra since the Hon’ble Supreme Court in the case of Jayaswal Neco Limited v. Commissioner of Central Excise, Raipur [2015 (4) TMI 569 - SUPREME COURT] held It is clear from the above that the use of railway tracks inside the plant not only form the process of manufacturing, but it is inseparable and integral part of the said process inasmuch as without the aforesaid activity for which railway tracks are used, there cannot be manufacturing of pig iron.
Thus, the use of railway tracks are meant for production of goods. The acetylene gas used in 30 shops/departments for repair and maintenance of machineries was also used in connection with the manufacture of the finished goods for the Appellant - the Appellant is eligible for the benefit of exemption notification no. 67/95-CE. Hence, the demand confirmed in the impugned order by denying the benefit of exemption notifications 65/95 or 67/95 is not sustainable - appeal allowed.
........
|
