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Central Excise - High Court - Case Laws
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2024 (1) TMI 960
Disallowance of CENVAT Credit - capital goods on which the CENVAT credit was availed were used to manufacture only exempted goods (electricity) - Rule 6(4) of the CENVAT Credit Rules, 2004 - Suppression of facts or not - time limitation - Jurisdiction of the Revenue authority when the show cause notice was issued - HELD THAT:- It is well settled proposition that Section 11A(4) is an exception to the general rule and it should be invoked in exceptional circumstances not in a routine manner and specially when the assessee has disclosed everything which is required to disclose under the statute then it cannot be tainted with fraud of suppression of fact. The monthly return which was filed shows the indisputable fact that the appellant has disclosed about availment of CENVAT credit.
In the instant case the appellant way back in the year 2005 filed the return wherein they have disclosed that they have availed the CENVAT credit. In the subsequent return of July, 2008 another availment of CENVAT credit was shown in the return, as the Supreme Court laid down that suppression of fact should not be interpreted as a mere act of omission, therefore, it cannot be held analogous to the fraud. There should have been deliberate act of non disclosure aimed at evading duty. Thus, the extended period under Section 11A(4) would not be available to the department and the show cause should have been issued under Section 11A(1) which permits limitation of only one year, as a result the department should have issued the show cause notice by 6-8- 2009.
Whether the shows cause notice dated 7-8-2013 is barred by limitation of five years also? - HELD THAT:- The relevant date in cases not concerning duty on excisable goods shall be date on which duty of excise is required to be paid under the Act or Rules thereunder. In reference to the demand at hand, the entire credit was availed in July, 2008. Therefore, five years should be computed from July, 2008 and according to Rule 8 to the Central Excise Rules, 2002 for date of payment of duty is 6th of every month. Thus, five years commence from 6-8-2008 to 6-8-2013 and show cause notice issued on 7-8- 2013, which is barred by limitation of one day. There is no dispute that monthly statutory return (ER-1) was filed every month by the appellant in the jurisdictional office. The case of the appellant was that when they intend to set up both power plant for manufacture of electricity and plant for dutiable goods, availed the CENVAT credit, which was shown in the return.
Jurisdiction of the Revenue authority when the show cause notice was issued - HELD THAT:- The show cause notice was without jurisdiction for the reason that when the show cause notice was issued the amended Rule 14 stipulated that the credit can erroneously availed can be recovered only if it has been taken and utilized.
Whether disallowing credit on co- generation power plant which commence production prior to the excisable credit is justified? - HELD THAT:- It cannot be said that revenue was right in disallowing credit on co-generation power plant which commenced production prior to excisable credit as the appellant always has intention to use goods for manufacturing dutiable product.
The impugned order set aside - appeal allowed.
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2024 (1) TMI 959
Condonation of delay in filing appeal - appeal barred by 1754 days in re-filing - no sufficient reasons for the delay - denial of CENVAT Credit - inputs - various iron and steel items which had been used for supporting the structures. - HELD THAT:- On merit, the issue has been settled in favour of the assessee and, therefore, it is not felt that in the present case, the issue of limitation and whether there is any suppression as such needs to be gone into, as argued by counsel for the Revenue since on merits the issue stands decided against it.
The appeal is also patently time barred and there is no ground to condone the delay in refiling since initially it was filed by a separate counsel way back on 27.06.2015 and had been returned with objections on 10.07.2015. The appeal was re-filed on 18.02.2016 by the earlier counsel and had been returned on 28.03.2016 and re-filed on 11.04.2016. The same was returned on 04.06.2016 to the said counsel which had been re-filed on 09.06.2016 and had been returned on 08.08.2016. In the application for condonation of delay, it has been mentioned that the earlier counsel did not return the original set of documents by saying that the original file has been misplaced and is not traceable and he is no longer on the panel - the fact remains that after the returning of the appeal in August, 2016, the present appeal was filed by preparing a fresh paper book only on 23.05.2022 and there is nothing to show in the application as to what transpired from August, 2016 to 23.05.2022 and, thus, the inordinate delay as such which has occurred in refiling thereafter also cannot be justified in any manner.
In the absence of any sufficient cause having been shown, even on the issue of limitation, the delay is not liable to be condoned.
Appeal dismissed.
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2024 (1) TMI 958
Maintainability of appeal before High Court - appropriate forum - determination of value of the excisable goods for the purpose of assessment which falls within the exclusive jurisdiction of the Hon’ble Supreme Court under Section 35L of the Central Excise Act, 1944 - whether the question of rate of duty or value of the goods are involved or not and not the scope of appeal or questions raised in appeal? - HELD THAT:- The provisions under Section 130 and Section 130E of the Customs Act, 1962 deals with appeal to High Court and Supreme Court respectively which are pari materia to Section 35G and Section 35L of the Central Excise Act, 1944, hence, the ratio of the judgment rendered by different Courts under the Customs Act, 1962 would apply to Central Excise Act, 1944 also.
In the case of UNION OF INDIA VERSUS GUWAHATI CARBON LTD. [2012 (11) TMI 885 - SUPREME COURT] it has been held by the Hon’ble Apex Court that against the decision of Tribunal regarding assessable value excluding freight, transportation and insurance charges, an appeal therefrom shall lie before Supreme Court.
Further, in the case of COMMISSIONER OF SERVICE TAX VERSUS ERNST & YOUNG PVT. LTD. AND OTHERS [2014 (2) TMI 1133 - DELHI HIGH COURT], it is held by the Delhi High Court that where the Order-in-Original (Adjudication Order) is relating to several issues or questions and one of the issue or question relates to rate of tax or valuation, the Appeal would lie before the Supreme Court under Section 35L of the Central Excise Act, 1944 and not before the High Court under Section 35G.
After going through the judgments including the Board’s Circular on the issue of maintainability and the facts of the case wherein the SCN as well as OIO also perused; reference of which are made in the preceding paragraphs, it clearly transpires that one of the issues involved relates to determination of valuation of excisable goods and/or rate of duty of excisable goods, amongst other things, for the purpose of assessment.
There are no hesitation in holding both these appeals as not maintainable and the same would lie before the Hon'ble Apex Court under Section 35L of the Act, inasmuch as, the jurisdiction of the High Court in such matters are specifically excluded under Section 35G and it falls within the exclusive jurisdiction of the Apex Court under Section 35L of the Act.
Both these appeals are, hereby, dismissed at the admission stage itself.
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2024 (1) TMI 884
Maintainability of petition - availability of alternative remedy of appeal - not given scope to participate in the hearing - violation of principles of natural justice - HELD THAT:- This Court finds that vide order dated 06.08.2007, the Customs Excise and Service Tax Appellate Tribunal, Eastern Bench, Kolkata remanded the matter as it found errors in the process of adjudication of the matter. Therefore, it is incumbent upon the authority to give due opportunity of hearing to the petitioners adhering to the direction of the CESTAT. If the authority did not follow the direction of the CESTAT, there is gross laches on the part of the authority in passing the order. Had the petitioners brought the fact to the notice of the CESTAT with regard to laches of the authority, in that event the CESTAT could have considered the same. Without doing so, the petitioners having approached this Court, the writ petition is not maintainable.
This Court is not inclined to entertain this writ petition - Writ petition disposed off.
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2024 (1) TMI 823
Area Based Exemption - Benefit of budgetary scheme under Notification dated 05.10.2017 issued by the Ministry of Commerce and Industry (Department of Industrial Policy and Promotion) - industrial units which were under the threshold exemption and/ or manufacturing exempted goods.
Case of Revenue is that the petitioners having opted for availing the benefits under the Notification No. 8/2003-CE dated 01.03.2003 to get the benefit of exemption from payment of Central Excise Duty, they cannot be extended the benefit of budgetary support which is restricted to only those units who had their registration under Central Excise and had paid Central Excise Duty and had collected their refunds as applicable.
HELD THAT:- As is seen from the recital of the notification of the budgetary support scheme, it is to provide financial support to those industries who were existing eligible manufacturing units operating in the various states mentioned including the North Eastern States under the industrial policies announced. The petitioner units were also availing benefits under the Industrial Policy and under the erstwhile Central Excise Law but were however either exempted from payment of central excise duty by virtue of their turnover being below threshold limit of 1.5 crores per annum or that the items which they had manufactured were already exempted. No materials have been placed before the Court by the respondents to suggest that because the petitioner units were not required to pay Central Excess Duty by virtue of their annual turnover being below the threshold limit of 1.5 crores or that they had produced goods which were already exempted under Central Excise Duty, they were not considered to be eligible industries to avail the benefits offered under the NEIIPP industry policy.
In the absence of such specific averments and contentions on behalf of the respondents or in the absence of such specific clauses being available under the industrial policy itself, the petitioner industries will have to be considered to be eligible industries to avail the benefits as applicable and as conferred under the NEIIPP.
The judgment of the Apex Court in M/S HERO MOTOCORP LTD. VERSUS UNION OF INDIA & ORS. [2022 (10) TMI 677 - SUPREME COURT], relied upon by the respondents, had upheld the validity of budgetary scheme support. However, the question of the manufacturing units, like the petitioners, who, although were eligible to avail the benefits under the industrial policies, were not required to avail those benefits by virtue of their manufactured goods being exempted or their turnover fell below the threshold limit, was not at all an issue before the Apex Court in the said Judgment. The issue before the Apex Court was the validity of the budgetary scheme and which was upheld by the Apex Court - The scheme does not conceive of a class of manufacturing units who, although were eligible, were not availing the benefits under the industrial policies. The subsequent interpretation given by the respondent authorities vide the circular dated 10.01.2019 by way of a clarification is held to be beyond the purview of the budgetary scheme notification itself. The said clarification by circular dated 10.01.2019 to the extent it excludes the manufacturing units like the petitioner is therefore held to be bad and set aside accordingly.
When the avowed object of the budgetary support scheme is to provide financial support to those industries who were eligible to avail benefits under the NEIIPP, the exclusion of the petitioner units on the classification that they did not pay Central Excise Duty either because their annual turnovers were below the threshold limit of 1.5 crores or that they had produced items which were already exempted is based on fiction and cannot be permitted to be a ground to deny the benefits of budgetary support scheme.
The respondent authorities are therefore directed to examine the individual claims of the petitioners and if they are found to have satisfied the criteria and the eligibility laid down under the NEIIPP, the benefits of budgetary support scheme as had been extended to other similarly situated units shall also be extended to the petitioner units. The respondent authorities will forthwith proceed to examine the individual claims and pass appropriate orders within a period of 30 days from the date of receipt of the certified copies this order.
Petition allowed.
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2024 (1) TMI 822
Recovery of amount of service tax before issuing notification under Section 68(2) of the Finance Act, 1994 - Rule 2(1)(d)(iv) of the Service Tax Rules, 1994 - HELD THAT:- In the present case, the respondents have rejected the refund claim of the appellant of Rs. 4,69,561/- in respect of service rendered from a non-resident provider for the period prior to 31.12.2004.
The Bombay High Court in the case of Indian National Shipowners Association [2008 (12) TMI 41 - BOMBAY HIGH COURT] has held that Respondents are restrained from levying service tax from the members of the Petitioners association for the period from 1-3-2002 till 17-42006, in relation to the services received by the vessels and ships of the members of the Petitioners association outside India, from persons who are non-residents of India and are from outside India.
In view of the settled position of law the said action of the respondents is illegal and in such circumstances, the impugned order dated 17.08.2007 passed by the Customs Excise & Service Tax Appellant Tribunal, New Delhi is hereby set aside and consequentially the orders dated 17.06.2005 passed by the Deputy Commissioner Central, Excise and Division, Bhilwara and 20.10.2005 passed by the Commissioner (Appeal II) Customs & Central Excise, Jaipur are also set aside.
The respondents are directed to refund the payment of Rs. 4,69,561/- to the appellant on the applicable interest in accordance with law within a period of six months from the date of production of certified copy of this order - Appeal allowed.
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2024 (1) TMI 395
Levy of Excise Duty - Marketability/Excisability - lean gas/waste gas containing carbon monoxide is used in the generation of electricity, which is subject to Nil rate of duty and non-excisable and/or exempted goods under Central Excise Act - HELD THAT:- Taking into consideration a very vital unignorable aspect that initial subject matter of challenge in this writ petition was impugned show cause notice which culminated into impugned ex-parte final adjudication order which has been passed during pendency of this writ petition and though it appears from record that several opportunities were given to the petitioner to file objection/reply to the impugned show cause notice and for hearing before passing the impugned adjudication order, but since it is the case of the petitioner that it had immediately filed this writ petition against the impugned show cause after receipt of same, petitioner thought it proper to not to give any reply to the same or to participate in the impugned proceeding and all the legal and factual points in challenging the impugned show cause and adjudication order it has taken in this writ petition, supplementary affidavit, and in course of hearing of the same against the impugned show cause notice and order-in-original could not be taken before the adjudicating authority.
The aforesaid impugned ex parte adjudication order dated 30th November, 2017 set aside and matter remanded back to the adjudicating authority concerned to pass fresh adjudication order by allowing the petitioner to file objection against the impugned adjudication order by treating the same as show cause notice and to take all the points raised in this writ petition and supplementary affidavit, the judgments and relevant circulars and notifications petitioner intends to rely in support of its case and after giving opportunity of hearing to the petitioner or its authorised representatives within two weeks from date and final adjudication order shall be passed within four months from the date of receipt of such objection/reply by observing principles of natural justice.
Petition allowed by way of remand.
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2024 (1) TMI 300
CENVAT Credit - credit allowed on photocopies of invoices - valid document as envisaged under rule 9 of CENVAT credit rules, 2004 or not - CENVAT credit allowed despite ISD registration not having been obtained prior to seeking to avail CENVAT credit - HELD THAT:- From the factual findings recorded by the Tribunal, it can be seen that the respondent-assessee had availed the Cenvat credit on the basis of the statement provided by the Head Office after procuring the goods and services and accordingly, the Tribunal has come to the conclusion that such Canvet credit availed by the respondent cannot be denied.
There are no reason to interfere with the impugned order as no question of law much less any substantial question of law arises - appeal dismissed.
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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.
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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.
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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.
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2023 (12) TMI 1002
Recovery of Central Excise Duty alongwith interest and penalty - Onus to prove - conditions imposed in N/Ns. 4/97-CE, 5/98-CE, 5/99-CE, 6/00-CE were satisfied or not - failure to discharge the onus of proving that the two conditions mentioned in the said Notifications, namely, that the goods in question had to be sold to the apex bodies by the respondent and that a certificate should be issued from the said apex bodies to the respondent at the time of the clearance of goods that the said goods were going to be used only on handloom had been satisfied - whether or not the role of the apex bodies was in the nature of selling or commission agents and not that of direct purchasers of the said goods from the Respondent.
HELD THAT:- It is undisputed that the respondent/assessee is a co-operative spinning mill which manufactured the yarn in question. The two co-noticees namely Tantuja and Tantusree are also apex handloom co-operative societies of the State Government who purchased yarn and also gave certificate that the yarn is going to be used only on handlooms. The respondent/assessee received payments from the aforesaid two purchasers namely Tantuja and Tantusree, by account payee cheques. The inference drawn by the adjudicating authority to deny exemption under the relevant exemption notification, that delivery of yarn was given by the respondent/assessee to persons other than Tantuja and Tantusree, is neither based on any material or evidence nor the inference so drawn can be said to be a valid exercise of power by the adjudicating authority - on admitted facts of the case, it is found that the respondent/assessee has fully complied with the conditions of the relevant exemption notification. Therefore, the Tribunal has correctly and lawfully set aside the adjudication order and allowed the appeal of the respondent/assessee.
Undisputedly, the yarn in question has been purchased by the co-noticees namely Tantuja and Tantusree, which both are registered apex handloom co-operative societies, who made payment to the respondent/assessee (yarn manufacturing co-operative society) through cheque drawn by them on their own bank accounts. They have also issued a certificate to the effect that the yarn is going to be used only on handlooms. Thus, all the conditions of the exemption notification in question were satisfied by the respondent/assessee. Therefore, the respondent/assessee was entitled for exemption and the Tribunal has lawfully and correctly allowed the appeal of the respondent/assessee holding the transactions in question to be exempt from Central Excise Duty.
The adjudicating authority had proceeded to deny exemption to the respondent/assessee merely on the basis of surmises and presumptions and alleged intendment. In our view and as per well-settled principles in a taxation statute, there is no room for any intendment and that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification - Nothing is required to be read into nor should anything be implied other than essential inference while considering a taxation statute or exemption notification.
What the adjudicating authority attempted to do is that it attempted to read something which was either factually not existing or which was not provided by the exemption notification. It attempted to add words by drawing its own inference on the basis of presumption that the yarn in question could have been sold by the respondent/assessee not to the aforesaid apex handloom co-operative societies but to some other persons - Since the respondent/assessee has fulfilled all the conditions, therefore, it became entitled for exemption and the exemption could not have been denied.
There are no manifest error of law in the impugned order of the tribunal. The appellant has completely failed to make out any case for interference with the impugned order - substantial questions of law framed are answered in favour of the assessee and against the respondent.
There are no merit in this appeal - appeal dismissed.
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2023 (12) TMI 902
Appropriate forum for determination of taxability or excisability of goods for the purposes of assessment - Supreme Court or High Court - Classification of services - intermediary services or not - Rule 2(f) of the Place of Provision of Service Rules, 2012 - HELD THAT:- Reliance has been placed upon the judgment of the Division Bench of the Delhi High Court in Commissioner of Income Tax, New Delhi vs. Menon Associates, [2014 (11) TMI 970 - DELHI HIGH COURT] wherein, a similar issue was considered regarding the concurrent appellate jurisdictions of the High Court and the Supreme Court. The discussion was, thus, made whether the appeal was maintainable before the Delhi High Court and after recording a finding that the issue was that whether service tax was payable and whether the service rendered was “export” and no service tax was payable, the appeal was directed to be returned back to take appropriate steps as per law.
Faced with this situation, counsels for the Revenue also could not point out any judgment to the contrary.
The appeal is not maintainable and the same is dismissed.
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2023 (12) TMI 847
Burden to prove - failure to appreciate that onus lay on the respondent to prove that the conditions imposed in Notification Nos. 4/97-CE, 5/98-CE, 5/99-CE, 6/00-CE were satisfied in the instant case - failure to discharge the onus of proving that the two conditions mentioned in the said Notifications - role of the apex bodies was in the nature of selling or commission agents and not that of direct purchasers of the said goods from the Respondent.
HELD THAT:- In the midst of argument, learned counsel for the appellant prayed that the matter may be taken up tomorrow so that he may prepare the case thoroughly.
List the matter on 15th December, 2023 at 10:30 A.M. for further hearing.
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2023 (12) TMI 846
Proceedings are barred by time limitation or not - main grievance of the petitioner is that after a period of 12 years, the respondents have no locus standi to proceed against the petitioner.
HELD THAT:- The petitioner falls under Section 11(b) of CEA. Therefore, the respondents are supposed to have determined the amount of duty within a period of two years. Merely because the words "where it is possible to do so" are provided in the Act, it does not mean that they can take their own time to determine the excise duty. It must be done within a reasonable time i.e. within one or two years. In the present case, the delay is more than 12 years, which is an inordinate one - In the circular dated 21.12.1992, it is clearly stated that the Board's D.O.F.No.223/8/85-CX.6, dated 21-3-1985 had already stipulated a maximum period of 6 months from the date of issue of show cause notice within which the case is to be decided and as far as possible, this limit is to be adhered to. The said circular is in force as on today.
In the present case, admittedly no intimation was provided to the petitioner with regard to keeping the call book and even in that case also, the Act provides time limit of six months to pass orders. However, in the present case, citing the internal circular issued by the respondents to keep the matters in the call book, the respondents have failed to adhere to the time limit provided in the statute. The circular is beyond the scope of the provisions of the Act and notifications provided therein. Therefore, keeping the call book without intimation to the petitioner and beyond the scope of the Act is unacceptable - the respondent department cannot keep the matter pending for a period of 12 years and thus, the present proceedings is clearly barred by limitation.
This Court is of the considered view that present proceedings could not be allowed to continue after a period of 12 years, particularly, when there is no mistake on the part of the petitioner. Adjudication of proceedings after a long period would cause serious prejudice to the parties. Hence, this Court holds that the present proceedings is barred by limitation and is unjustifiable.
The Show Cause Notice dated 09.03.2011 issued by the first respondent, is hereby quashed - Petition allowed.
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2023 (12) TMI 251
Relevant date for calculation of interest - interest under Section 11BB of the Central Excise Act, 1944 would accrue from the date of expiry of 3 months from the date of receipt of application for refund or on the expiry of 3 months from the date of communication of the order of the Appellate authority / Court? - HELD THAT:- The issue stands resolved by the judgment of the Hon'ble Supreme Court in RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [2011 (10) TMI 16 - SUPREME COURT] wherein after finding that the appellant’s claim for rebate of duty was rejected by the Assistant Commissioner and was subsequently allowed in appeal which was affirmed in further appeal before the Joint Secretary, Government of India it was held Section 11-BB of the Act lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under sub-section (1) of Section 11-B of the Act, then the applicant shall be paid interest at such rate, as may be fixed by the Central Government, on expiry of a period of three months from the date of receipt of the application.
It is clear from the extract that the submission of the learned counsel for the respondent on the basis of the Explanation to Section 11BB of the Act to suggest that in view of the deeming contained therein, the interest payable on delayed refund under Section 11BB of the Act would accrue only in the event of delay in making the refund beyond 3 months from the date of the order of the adjudicating authority / appellate authority / Court was rejected by the Hon'ble Supreme Court.
The above judgment of the Hon’ble Supreme Court in the case of Ranbaxy has been subsequently followed in the case of Manisha Pharmo Plast Private Ltd., v. Union of India [2020 (11) TMI 726 - SUPREME COURT].
Following the above judgments of the Hon’ble Supreme Court, this Court has no hesitation to hold that interest on refund in terms of Section 11 BB of the Act would accrue in the event of delay in grant of refund beyond 3 months from the date of application i.e., 11.07.2016 in the present case - the respondents are directed to calculate the statutory interest in terms of Section 11 BB of the Act i.e., 3 months from 11.07.2016 (date of application for refund) until 17.12.2019 when the rebate was actually granted and pay the same within 4 months from the date of receipt of a copy of this order.
Petition disposed off.
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2023 (12) TMI 173
Restoration of appeal - non payment of necessary pre-deposit under the provisions of Section 35 of the Central Excise Act, 1954 - HELD THAT:- The applicants-Directors themselves were filing the applications for restoration of the appeals which had already been dismissed by the Tribunal after noticing the non-compliance of the order not only of the Tribunal but also the order of this Court dated 10.10.2013 (Annexure A-6) whereby only Rs. 6 crores was to be deposited. As noticed above, the Apex Court had reduced the amount further to Rs. 4 crores and the appeal was only to be restored subject to the said deposits. The said amounts had never been deposited. The Directors could not hide behind the legal shield that the company had been directed to pay the amount and they were the persons who were agitating before this Court and the Apex Court that the company was functioning through them.
The Tribunal in such circumstances has over-stepped its jurisdiction by allowing the application for condonation of delay and restoration of the appeals and thereafter proceeded ahead with the matter for the reasons best known to it. We do not wish to comment on the orders passed by the Tribunal in the present facts and circumstances.
The question of law must be answered in favour of the Revenue that the Tribunal had no jurisdiction and would have become functus-officio once the amounts had never been deposited inspite of the directions in the SLPs dated 21.08.2015. The applications filed at the belated stage by the Directors themselves in the year 2018 for condoning the delay on 10.08.2018 was apparently time-barred and there was no sufficient cause to condone the delay also which had been done by the Tribunal.
Appeal allowed.
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2023 (12) TMI 43
Wrongful availment of MODVAT/CENVAT Credit on the capital goods - case of the appellant/Revenue is that on the basis of report from the intelligence, on scrutiny of the premises of the assessee, irregularity in availing the MODVAT credit on capital goods was detected - HELD THAT:- Given the fact that the appeal of the appellant/Revenue was primarily touching upon the applicability of the Notification No.214 of 1986 and also use of the term “capital goods as such” mentioned in Rule 57AB of the Central Excise Rules, 1944, it is opined that the judicial precedents referred to in the preceding paragraphs dealing with if not identical in almost similar circumstances lays to rest the question of law being agitated by the Revenue in this case.
There are no substantial merits in the grounds raised by the Revenue in this case and the appeal thus fails and stands decided affirming the order passed by the Tribunal and the same stands decided in favour of the respondent/assessee - questions of law on which the appeal was admitted, stands answered against the appellant/Revenue and in favour of the respondent/assessee.
Appeal dismissed.
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2023 (11) TMI 1072
Validity of SCN - Recovery of Refund claim - Issuance of impugned notices for return of the Cess, since earlier it had been refunded on the basis of then valid law, as laid down by the Supreme Court.
HELD THAT:- When the matters were taken up for final consideration, it was reported to this Court that, the same issue was pending before the Supreme Court, and as such, all these matters were adjourned on many dates, to await the outcome thereof.
The matters before the Supreme Court were then disposed of vide order dated 04.07.2022, whereby the subsequent decision of the Supreme Court overruling M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT] in the case of M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA & OTHERS [2019 (12) TMI 286 - SUPREME COURT] was held, to not have any bearing on past decisions, which attained finality.
These writ petitions are disposed of, and accordingly the show-cause/demand/recovery notices appearing in all these connected writ petitions stand quashed and set aside.
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2023 (11) TMI 678
Seeking grant of anticipatory bail - appearance before the trial Court to face the trial in pursuance of summoning order - HELD THAT:- It is apparent from the record that after presentation of the complaint by the respondent, the present petitioner alongwith other accused have been ordered to be summoned by the trial Court. All the documentary evidence has already been collected by the respondent and the custody of the petitioner will not serve any meaningful purpose, at this stage.
Without commenting any further on the merits of the case, the petitioner is directed to surrender before the trial Court, within a period of two weeks from today and on his appearance, he shall be admitted to bail subject to furnishing surety bonds/bail bonds to the satisfaction of the learned trial Court/Illaqa Magistrate - Petition disposed off.
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