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Central Excise - Case Laws
Showing 121 to 140 of 159 Records
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2019 (12) TMI 330 - CESTAT MUMBAI
Extended period of limitation - Valuation - processed fabrics - mis-declaration of the value of the ‘grey fabrics’ supplied to them on job-work by their principal manufacturer on the basis of the declaration issued by that manufacturer - filing of the classification list under rule 173B of the erstwhile Central Excise Rules, 1944 - HELD THAT:- In appellant own matter, for identical dispute pertaining to a different period, the Tribunal had extended the benefit of limitation in VISHNU DYEING & PRINTING WORKS VERSUS COMMISSIONER OF C. EX., MUMBAI [2007 (9) TMI 157 - CESTAT, MUMBAI] which was upheld by the Hon’ble High Court in COMMISSIONER VERSUS VISHNU DYEING & PRINTING WORKS [2008 (8) TMI 896 - BOMBAY HIGH COURT] where it was held that invocation of extended period for the confirmation of demand against the present appellant is not available to the revenue in the absence of any evidence to show that the appellant had colluded with the merchants/traders in giving wrong declaration of the price.
The appeal is allowed on the claim of limitation.
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2019 (12) TMI 286 - SUPREME COURT
Area based exemption - Recovery of refund of Refund of NCCD on the ground that exemption was not permissible under the notification for the units located in the State of Sikkim - Binding nature of Circular issued by the CBEC (CBIC) - appellant submitted that NCCD, education cess, and secondary and higher education cess form part of the excise duty - manufacture of Indian Mouth Freshener - Levy of education cess, higher education cess, and National Calamity Contingent Duty (NCCD) - Notification dated 17.2.2003 - N/N. 71/2003 dated 9.9.2003
HELD THAT:- It is not in dispute that when initial exemption notification was issued in 1997 for the North-Eastern States, which was later on applied to the State of Sikkim on 9.9.2003. The benefits from payment of excise duty and additional excise duty were confined to the basic excise duty payable under the Acts of 1944, 1957 and 1978. There was no reference made to NCCD imposed under the Finance Act, 2001. Apart from that, when the notification came to be issued, the education cess and secondary and higher education cess, which came to be imposed by Finance Acts of 2004 and 2007, were not in vogue.
A Division Bench of this Court in SRD Nutrients Private Limited [ 2017 (11) TMI 655 - SUPREME COURT ] has considered the Finance Acts of 2004 and 2007, by which education and secondary and higher education cess were imposed. Under the Industrial Policy dated 1.4.2007 for the North Eastern States, the notification dated 25.4.2007, issued by the Central Government, came up for consideration before this Court.
In Bajaj Auto Limited [2019 (3) TMI 1427 - SUPREME COURT] a Division Bench of this Court considered the question of liability towards NCCD, education cess and secondary and higher education cess on manufacturing establishment which is exempted from payment of central excise duty under the Act of 1944. - The most unfortunate part is that the binding decision of larger bench consisting of three Judges of this Court in Union of India v. Modi Rubber Limited, [1986 (8) TMI 60 - SUPREME COURT], dealing with the similar issue, was not placed for consideration before this Court when the abovementioned decisions came to be rendered.
This Court in Modi Rubber Limited (supra) has considered the purport of the notifications and the specific provisions mentioned therein and held that exemption has to be considered in the light of provisions of Central Excise Rules, 1944, as envisaged under Rule 2(v) of Central Excise Rules, 1944. It cannot, in the circumstances, bear an extended meaning to include special excise duty and auxiliary excise duty.
Merely reference to the source of power is not enough to attract the exemption and what exemption has been granted to be read from the notification issued therein. This Court has further laid down that in case notification granting exemption issued under the Central Excise Rules, 1944 without reference to any other statute, the exemption must be read as limited to the duty of excise payable under the Central Excises and Salt Act, 1944. It cannot cover such special or another kind of duty of excise.
Notification dated 9.9.2003 issued in the present case makes it clear that exemption was granted under Section 5A of the Act of 1944, concerning additional duties under the Act of 1957 and additional duties of excise under the Act of 1978. It was questioned on the ground that it provided for limited exemption only under the Acts referred to therein. There is no reference to the Finance Act, 2001 by which NCCD was imposed, and the Finance Acts of 2004 and 2007 were not in vogue. The notification was questioned on the ground that it should have included other duties also. The notification could not have contemplated the inclusion of education cess and secondary and higher education cess imposed by the Finance Acts of 2004 and 2007 in the nature of the duty of excise. The duty on NCCD, education cess and secondary and higher education cess are in the nature of additional excise duty and it would not mean that exemption notification dated 9.9.2003 covers them particularly when there is no reference to the notification issued under the Finance Act, 2001.
The Circular of 2004 issued based on the interpretation of the provisions made by one of the Customs Officers, is of no avail as such Circular has no force of law and cannot be said to be binding on the Court. Similarly, the Circular issued by Central Board of Excise and Customs in 2011, is of no avail as it relates to service tax and has no force of law and cannot be said to be binding concerning the interpretation of the provisions by the courts.
Appeal dismissed - decided against appellant.
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2019 (12) TMI 282 - JAMMU AND KASHMIR HIGH COURT
Permission to make necessary correction/amendment in the title, MCC and Meta Data Form - HELD THAT:- CONXP No. 29/2018 and MCC No. 55/2018 had been filed for readmission of EXAP No. 19 of 2013 whereas CONXP no. 24/2018 and MCC No. 143 of 2018 had been filed for re-admission of EXAP No. 24/2013 but inadvertently counsel for the applicant had mentioned EXAP No. 24 of 2013 in the title of both the sets of applications i.e., CONXP No. 29/2018 & MCC No. 55/2018 and CONXP No. 24/2018 and MCC No. 143/2018. It is due to this reason that EXAP No. 19 of 2013 has not been decided. It is, therefore, prayed by the learned counsel for the applicant that necessary correction/amendment in the title of the CONXP No. 29 of 2018 and MCC No. 55 of 2018 and in Meta Data Form be made.
The applicant is permitted to make necessary correction/ amendment in the title of the CONXP No. 29 of 2018 and MCC No. 55 of 2018 and Meta Data form before the Registrar Judicial of this Court - Application allowed.
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2019 (12) TMI 281 - CESTAT AHMEDABAD
Benefit of N/N. 8/2003 – CE dt. 01.03.2003 - use of brand name of others - the impugned order has mainly confirmed demand on the ground that the Appellant unit is not entitled for the SSI exemption as they have sold machines bearing the trade/ brand name “Bhayani” - whether the Appellant M/s Om Synthetics are entitled for the benefit of SSI notification No. 8/2003 – CE dt. 01.03.2003 where the goods bearing brand name “Bhayani” was cleared by them and also whether demand of duty against both the Appellant is sustainable on alleged removal of goods without payment of duty?
HELD THAT:- In terms of co-ownership agreement entered into M/s Bhayani Engineering Co. on one part and M/s Om Synthetics and M/s Thakar Traders on second part for use of Trademark “Bhayani” on co-ownership basis. Thus it cannot be said that the said brand name is owned by others and hence the exemption cannot be denied. We also note that in case of M/s Thakar Traders, the other appellant the Appellate Authority has held that SSI exemption cannot be denied on ground of use of trade name “Bhayani” as it is co-owned - the Appellant are entitled for SSI Exemption on clearance of goods.
Demand against M/s Thakar Traders - Supply of various types of wheels viz. Girder Wheels, Bruter wheels, Russian Wheels - HELD THAT:- The demand has been made on ground that the clearances made by Appellant are liable for duty. The Appellant has contended that the Russian bruter wheel was sent for jobwork of grinding without following the procedure under central excise rule or job work exemption notification and the goods came into existence only after grinding of wheels were completed - The activity of manufacture as per Section 2 (f) of the Central Excise Act was completed and Russian Bruter wheel came into existence after the jobworker under took the process of grinding. In such case when the procedure as contemplated under Exemption Notification No. 214/86 – CE dt. 01.03.86 was not followed the jobworker of the goods become liable for duty and the duty cannot be demanded from M/s Thakar Traders. We have also gone through the Annexure – ‘A’. The goods detailed therein were for testing as appearing in seized record. No investigation was made as to why this record was maintained. In absence of any investigation it cannot be concluded that the record pertains to clandestine clearances.
In such case the demands cannot be confirmed without corroborative evidence. No independent and corroborative evidence has been brought to show any excess procurement of raw material or clearance of goods to buyer which can show that the Appellant cleared goods clandestinely - the charges of any clandestine removal against the Appellant are not sustainable - the fines and penalties imposed upon the Appellants set aside.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 280 - CESTAT AHMEDABAD
Clandestine removal - admissible evidence or not - Section 65B of the Indian Evidence Act 1872 and Section 36B of the Central Excise Act,1944 - demands made on the basis of Ledger Account “Pipe Sales” retrieved from Pen Drive seized from residence of Bhavesh/Snehal R. Shah is liable to be set aside as the data stored in the Pen Drive is inadmissible as evidence since the requirements of Section 65B of the Indian Evidence Act 1872 and Section 36B of the Central Excise Act,1944 have not been satisfied - cross-examination of third person.
HELD THAT:- The investigation was initiated by searching the factory premises and office of M/s SSPL and residential premises of Shri Bhavesh/Snehal R. Shah. During search at factory premises of M/s SSPL, no incriminating papers were found nor any discrepancy was observed in raw material/ finished goods stock, their accounting and production/ clearance of finished goods. No document in the form of production record, accounting record or gate register showing unaccounted purchase/ receipt of raw material or unaccounted clearance/sale/ transportation of finished goods was found - Shri Snehal/ Bhavesh Shah in his statement has stated that the Pen Drive ledger pertained to trading done by him of SS Patta, SS Coils and SS Pipes in his personal capacity. The show cause notice and the impugned order has alleged that the persons whose statements have been relied upon has stated that they were doing trading or acting as broker in SS Pipes of M/s SSPL. They have also verified the Pen drive ledger as pertaining to their firm.
The Appellant Unit in its reply to show cause notice had challenged the authenticity/ genuineness of such pen drive data on the ground that the same is inadmissible in evidence as the requirements of Section 65B of the Indian Evidence act and procedure required under Section 36B of the Central Excise Act was not followed - Section 36B of Central Excise Act is parimateria to Section 65 of the Indian Evidence Act. As per Section 36B(1) computer printout is considered as document for the purpose of central excise act and rules and is admissible as evidence subject to condition in Section 36 B (2).
There is no computer on which the data stored in pen drive was produced. There is also no person was identified and examined who has prepared such data. In such case the pen drive data cannot be considered as admissible evidence - the pen drive data cannot be relied upon without following the requirements Section 36B of the Central Excise Act, 1944. As such the demands based upon pen drive in the present case cannot be confirmed against M/s SSPL.
The Appellant during the adjudication proceedings had sought cross examination of persons and officers whose statements were relied upon in show cause notice under Section 9 D of the Central Excise Act. However the same was denied to them. When the demand against M/s SSPL was based upon pen drive and papers seized from residence of third party Shri Bhavesh Shah as well as statements of third party i.e traders/ brokers, in that case it was imperative for the adjudicating authority to allow cross examination of such persons to the Appellant. Since no opportunity to cross examine such persons whose statements has been relied upon was provided to the assessee, the statements given by these persons cannot be considered to uphold the charges of clandestine removal against Appellant Unit - the demands cannot be made on the basis of pen drive data and statements made by third parties.
No inculpatory record/ papers were found at the factory of Appellant Unit which could show that any excess raw material has been received by them or any goods has been cleared clandestinely by them. There is no production record or raw material consumption record showing excess unaccounted production. No statement of production incharge or worker is appearing. Except pointing out the transport register of Suvidha Transport and that too for few transports, there is no other independent evidence of transportation of goods - Pertinently, it was found that statements of few traders/ broker were recorded but none of them has provided even a single name of customer or actual buyer. No finished goods alleged to be clandestinely cleared was seized from any alleged buyer. No transport Bilty or octroi receipts/ records has been brought on record to show that the goods were consigned from Chhatral to Mumbai. Thus there is no primary evidence to allege any clandestine clearance. The statements and third party records which are secondary evidence cannot be relied upon to allege clandestine clearance as the same has no independent evidentiary value.
Further in case of ARYA FIBRES PVT. LTD. [2013 (11) TMI 626 - CESTAT AHMEDABAD], the tribunal while dealing with the reliability of papers found from the evidence of the buyer held that private records seized from the premises of the buyer cannot be sole basis for demand especially when corroborative evidence like purchase of extra raw material, actual removal of clandestine goods, receipt of sale proceeds, etc. not produced.
In the facts of the present case there is no dispute that the documents/records recovered solely from third parties, statements of third parties whose cross examination was not allowed despite it is mandatory under section 9D of CEA, 1944, no incriminating documents recovered from the Appellant SSSPL, no excess/short stock of raw material or finished goods were found; no excess electricity consumption was proved, no evidence of any cash receipt or it’s seizure, no excess raw material consumption was found - thus, the clandestine removal without any evidence as narrated above cannot be established.
The demands made against the Appellant Unit are not sustainable - appeal allowed - decided in favor of appellant.
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2019 (12) TMI 279 - CESTAT CHENNAI
Refund of excess duty paid - price variation clause - goods were valued at 110% of the cost of production - refund was rejected on the ground of unjust enrichment - HELD THAT:- The appellant had initially paid the Excise Duty on the estimated cost, which was determined to be more than the actual cost, and accordingly, the duty element on the excess cost alone was claimed as refund. The Supply Order clearly mandates that the tax, duty and other levies shall be borne by the Ministry of Defence, which in fact was initially borne by the appellant and later on recovered from the Ministry of Defence.
The appellant which is engaged in the manufacture of rail coaches, established in 1952, is owned and operated by the Indian Railways and by virtue of this, it is a Government of India undertaking and as such, the ratio of the decision of the Hon'ble jurisdictional High Court in the case of M/s. Sescot Sheet Metal Works Ltd. Vs. CESTAT, Chennai [2015 (4) TMI 386 - MADRAS HIGH COURT] can be applied to underline the fact that it cannot be said that the appellant was unjustly enriched and that thereby, the unjust enrichment attributed to the appellant has to necessarily fail.
The material takeaway is that the mischief of unjust enrichment could not be attributed to the appellant and the reason given for denying the refund being unjust enrichment, must fail - refund is to be allowed.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 278 - CESTAT MUMBAI
SSI exemption - use of brand name of others - Department objected to availing of such simultaneous of benefit under Notification No 8/2003- CE and CENVAT Credit in respect of the goods cleared on payment of duty - period September 08 to August 2009 - whether simultaneous availment of CENVAT Credit in respect of the inputs used in manufacture of dutiable final products viz Branded Goods and SSI exemption under notification No 8/2003-CE dated 01.03.2003 as amended is permissible or not? - Difference of opinion - majority order.
HELD THAT:- The issue of eligibility of SSI exemption under various notifications issued from time to time in line with Notification No. 8/2003-CE dated 1.3.2003, when the assessee also avails CENVAT Credit on inputs used for the goods manufactured on job-work basis by affixing the brand name of others, has been considered by the Hon’ble Supreme Court in Nebulae Health Care Ltd.’s case [2015 (11) TMI 95 - SUPREME COURT]. Their Lordships analyzing the principles laid down in earlier judgments including that in Ramesh Food Products’ case [2004 (11) TMI 103 - SUPREME COURT] - In the said judgment, the Hon'ble Supreme Court distinguished the ratio laid down in Ramesh Food’s case (supra) and held that an assessee can avail the SSI benefit and also CENVAT credit on inputs used in the manufacture of Branded goods cleared on payment of duty. Besides, Notification No. 8/2003-CE dated 1.3.2003 has been amended w.e.f. 11.2.2009 vide Notification No. 2/2009-CE dated 11.2.2009 incorporating the following proviso to clause (iii) of condition (2) of the said notification.
The opinion of learned Member (Judicial) is agreed upon that the appellants are entitled to avail benefit of SSI exemption N/N. 8/2003-CE dated 1.3.2003 even though they have admittedly availed CENVAT Credit on inputs which have been used in the manufacture of branded goods, cleared on payment of duty during the relevant period.
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2019 (12) TMI 231 - SC ORDER
Maintainability of appeal - requirement with the pre-deposit - Section 35F of the Central Excise Act, 1944 - it was held by High Court that prayer of the petitioner for being permitted to prosecute its appeal before the CESTAT without complying with the condition of mandatory pre-deposit, cannot be granted - HELD THAT:- There are no merits in the present SLP - SLP dismissed.
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2019 (12) TMI 230 - BOMBAY HIGH COURT
CENVAT Credit - Tribunal observed that, though auto cess and education cess were duties of excise, yet the goods on which they were paid, continued to be exempted goods as basic excise duty was not payable thereon? - HELD THAT:- Having regard to (i) the nature of the various duties or cesses (which are in addition to the duty of excise leviable under the Act or additional duty of excise leviable under Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957), which are nothing but levies of excise, and (ii) the overall scheme of Cenvat credit, as contained in the Rules of 2002 as well as 2004, there is no obvious or self-evident reason why the expression ‘duty of excise’ used in the definition of “exempted goods” should not include these other levies. It matters not that these additional duties or cesses are not to be traced to the Act or are provided for by other enactments such as Finance Acts, or that they are levied as an increment, or are expressed as a proportion, to an existing tax (namely, basic duty of excise).
Once it is seen that these cesses and duties are also excise duties and on that basis are included in the Cenvat credit scheme, as indicated by Rule 3 itself, the fact that these are referred to as cesses or duties looses its significance altogether; it is hardly determinative for construing the expression “duty of excise”.
The substantial question of law is answered in the negative, i.e. in favour of the Assessee and against the Revenue.
Whether ten percent (eight percent, under the earlier Rules) of the sale price referred to in clause (b) of Sub-rule (3) of Rule 6 is to be included in the total price of final goods exigible to duty or is it eligible for deduction as a tax from such total price. - Held that:- In Chhata Sugar Co.Ltd. [2004 (2) TMI 67 - SUPREME COURT], the Supreme Court has held that to compute excise duty as a predetermined amount without making permissible deductions for reducing the cum-duty selling price was a fallacy both legally or mathematically. These observations are clearly apposite in the present case. After payment of ten or eight percent amount, as the case may be, which, as we have seen above, is noting but tax, the assessable value can be derived from such cum-duty price only after making permissible deductions, that is to say, deduction inter alia of the tax component, namely, ten or eight percent of the amount, as the case may be, of the selling price of the goods. - this question is answered in the negative, i.e. in favour of the Assessee and against the Revenue.
Whether the Tribunal justified in holding that Cenvat Credit could be utilized by the Assessee, where common inputs were used along with non-common inputs in manufacture of exempted goods, as Explanation-III added to Rule 6 (3)(b) of Cenvat Credit Rules inserted w.e.f. 16 May, 2005 was prospective in nature? - HELD THAT:- Rule 6 of Cenvat Credit Rules of 2002 and 2004 inter alia provides for obligations of manufacturers who manufacture both dutiable and exempted goods, if they are to claim Cenvat credit. Sub-Rule (1) makes it clear that Cenvat credit is not available on inputs used in the manufacture of exempted goods. Sub-rule (2) is an exception; it provides for circumstances in which Cenvat credit on inputs used in the manufacture of exempted goods can be availed of. Where inputs are used for manufacture of dutiable as well as exempted goods, the manufacturer may take credit on that quantity of inputs which is intended for use in the manufacture of dutiable goods. This is, however, subject to a condition that the manufacturer maintains separate accounts for receipt, consumption and inventory of input meant for use in the manufacture of dutiable goods and quantity of input meant for use in the manufacture of exempted goods.
Sub-rule (3), applies only to those cases, where the manufacturer in question uses common inputs for manufacture of dutiable as well as exempted goods; it does not apply to a manufacturer of exempted goods, who uses exclusive inputs for such manufacture. This is implicit in Rule 6, read in the light of all its sub-rules together. Explanation III merely underscores this position. It makes explicit what was already implicit. It is purely and simply clarificatory or declaratory; it does not alter the old law in any manner or, in other words, introduce a new element in it which did not exist earlier. It must apply, accordingly, retrospectively.
This question is answered in the negative, i.e. in favour of the Revenue and against the Assessee.
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2019 (12) TMI 229 - JAMMU AND KASHMIR HIGH COURT
Maintainability of appeal - Appropriate forum - Jurisdiction of High Court - Refund or adjustment of the excise duty paid - Benefit of exemption in terms of notification No.56/2002-CE dated 14.11.2002 with reference to subsequent notification Nos.19/2008-CE dated 27.03.2008 and 34/2008?
HELD THAT:- A perusal of Section 35-G of the Act shows that an appeal lies to this Court from every order passed in appeal by the Tribunal except in a case where the order relates, among other things, to determination of any question having relation to the rate of duty of excise or to the value of goods for purpose of assessment. While excluding the jurisdiction of the High Court to deal with the aforesaid issues, appeal has been provided directly from the order of the Tribunal, on the aforesaid issues, to Hon’ble the Supreme Court, as provided for in Section 35-L of the Act.
Delhi High Court in Bharti Airtel Limited’s case [2013 (4) TMI 376 - DELHI HIGH COURT] had opined that for the purposes of consideration of the issue regarding maintainability of appeal before the High Court, nature of the order has to be considered and not the issue sought to be raised by the appellant. In fact this is evident from the plain language of Section 35-G of the Act, which provide that an appeal shall lie to the High Court from every order passed by the Tribunal not being an order relating to determination of any question having relation to the rate of duty of excise or to the value of goods for purpose of assessment.
Thus, the consistent opinion of the courts is that the dispute, as to whether or not the assessee is covered by the exemption notification, relates directly or proximately to the rate of duty applicable thereto for the purpose of assessment, hence, High Courts will not have jurisdiction to entertain appeal pertaining to that, it being in exclusive jurisdiction of Hon’ble the Supreme Court - there are no substance in the argument raised by the learned counsel for the revenue that judgment of this Court deciding the validity of a notification will be a judgment in personam and not in rem and will apply only to the petitioners before the Court. As the opinion expressed by this Court was declaration of law, it will apply uniformly to all the assesses concerned without any exception, irrespective of the fact whether any party had approached the Court or not.
The issue involved is regarding interpretation of exemption notifications dated 14.11.2002, 27.03.2008 and 10.06.2008, which will have effect or valuation of goods for the purpose of levy of duty, hence appeals before this Court will not be maintainable - appeal before this Court against the order passed by the Tribunal will not be maintainable as the jurisdiction to entertain the same would lie before Hon’ble the Supreme Court.
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2019 (12) TMI 228 - CESTAT CHENNAI
CENVAT Credit - input services - Business Auxiliary Service - BAS (Export of Goods) - Consulting Engineers - Landscaping services and Warehousing services - Housekeeping service - Fabrication and Boiler Services - Bio Medical Waste Disposal Service - Pest Control used in canteen, welding of canteen tables, servicing of steam boilers - denial of credit availed on certain input services on the premise that they do not have nexus to the manufacturing activity - HELD THAT:- The definition of “input” or “input services” in the CCR is very much wide and as long as the primary conditions like, use of input or input service in or in relation to the manufacture of final products or output service is not disputed, the credit cannot be denied - Moreover, the term ‘in or in relation’ is very wide and covers the entire gamut of activities undertaken by the appellants.
Credit cannot be denied - appeal allowed - decided in favor of appellant.
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2019 (12) TMI 227 - CESTAT BANGALORE
Clandestine removal - manufacture and clearance of bags and soft luggage items - non-accounting of goods - confiscation - penalty - HELD THAT:- For the impugned goods, another show-cause notice was issued to the appellant which was finally decided by the Commissioner(Appeals) vide his order dt. 14/06/2019 wherein the Commissioner(Appeals) has held that the demand in respect of the goods seized on the premises of Outshiny Kodigehalli was not sustainable since there was no evidence to prove that the appellant were attempting to clear them without payment of duty - Further, there is no dispute about the fact that the goods in question i.e. 1000 numbers of bags were found lying in the assessee’s own premises and there is no evidence placed on record that the appellant had intended to clear the same without payment of duty from the premises of Outshiny Kodigehalli. Therefore unaccountal of the goods by the appellant at best is only a technical breach.
The impugned order holding that the seized goods is liable to be confiscated is bad in law and unsustainable - the imposition of penalty on the appellants and Outshiny Kodigehalli (appellant No.2) are liable to be set aside - Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 226 - CESTAT MUMBAI
Irregular availment of MODVAT Credit - recall of order - section 129 of Customs Act, 1962 - HELD THAT:- As the scope and jurisdiction of the Tribunal emanates from section 129 of Customs Act, 1962 for the for the limited purpose of deciding upon the legality and appropriateness of a confirmed demand, denial of refund or other penal consequences under Customs Act, 1962, Central Excise Act, 1944 and Finance Act, 1994, it is not within our competence, or expertise, to foray into awards and determination of such other statutory bodies.
The provisions of Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 are amply clear - With the expiry, or cessation, of an appellant, the appeal comes to an end.
A miscellaneous application for alteration of cause title can be entertained only if an entity with potential for finding itself to be obligated by unfavourable future decision of the Tribunal seeks to substitute for an appellant on record to enable it to be heard before being saddled with detriment. Such a responsibility or obligation cannot be imposed by an existent appellant on to another entity whose involvement in the proceedings is not on record in the show cause notice. Hence, the application for incorporation of M/s Larsen & Toubro Ltd in the appeal is dismissed.
Application disposed off.
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2019 (12) TMI 179 - SC ORDER
Permission for withdrawal of SLP - Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 - HELD THAT:- Permission for withdrawal granted.
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2019 (12) TMI 178 - DELHI HIGH COURT
Refund of Cenvat Credit lying unutilized - closure of unit - Whether CESTAT was correct in holding that appellant, engaged in manufacture of chewing tobacco and operating under the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010, was entitled to refund of Cenvat Credit lying unutilized on date of closure of unit?
HELD THAT:- Admit.
Registry is directed to list these two Central Excise Appeal Cases for final disposal on 9th January, 2020 in the category of ‘After Notice Miscellaneous Matters’.
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2019 (12) TMI 177 - KARNATAKA HIGH COURT
Rebate claim - rejection on the ground of time limitation - It is contended that no time limit has been prescribed for filing a rebate claim under Rule 18 of Rules and Section 11-B of the Act is not applicable to the Notification No.19/2004/CE(NT) dated 6.9.2004 issued by the Central Government under Section 18 of the Rules - HELD THAT:- It is not in dispute that the Notification No.41 of 1994/CE holding the field for about 10 years did prescribe the time limit for availing the refund of duty - The omission of the time limit in the subsequent Notification 19/2004 was considered by the Hon'ble High Court of Madras in the case of Dorcas Market Makers Pvt. Ltd., [2015 (4) TMI 118 - MADRAS HIGH COURT], it was held that the rebate of duty under Rule 18 should be as per the Notification issued by the Central Government. Notification No.19/2004 did not contain the prescription regarding limitation, a conscious decision taken by the Central Government.
The reference made by the learned counsel for the petitioners to the circular instructions issued by the Central Board of Excise and Customs, New Delhi, is of little assistance to the petitioners since there is no estoppel against a statute. It is well settled principle that the claim for rebate can be made only under section 11-B and it is not open to the subordinate legislation to dispense with the requirements of Section 11-B. Hence, the notification dated 01.03.2016 bringing amendment to the Notification No.19/2004 inasmuch as the applicability of Section 11-B is only clarificatory - It is not in dispute that the claims for rebate in the present cases were made beyond the period of one year prescribed under Section 11-B of the Act. Any Notification issued under Rule 18 has to be in conformity with section 11-B of the Act.
The decision of Original Authority rejecting the claim of rebate made by the petitioners as time barred applying Section 11-B of the Act to the Notification No.19 of 2004 cannot be faulted with - petition dismissed.
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2019 (12) TMI 176 - CESTAT CHANDIGARH
CENVAT Credit - electronic parts and batteries - credit availed without actually receiving them and without using the same in their factory in the manufacture of their final product - recovery of CENVAT Credit in terms of Rule 14 of the Cenvat Credit Rules readwith Section 11A of the Act alongwith interest under Section 11AA of the Act and penalty.
Whether the appellant M/s Avon Meters Pvt. Ltd. is entitled for cenvat credit which has been denied by the Ld. Commissioner alleging that it was mere a paper transaction or not?
Whether the penalty under Rule 26 of Central Excise Rules can be imposed on the co-appellants or not?
HELD THAT:- The appellant has placed on record, the opinion of Dr. K. Prakalathan (M. Tech. Ph.D.), Manager (Testing), CIPET Chennai, regarding feasibility of mixing of the Polycarbonate granules with granules of polymers of ethylene, in primary forms or with granules of polymers of propylene or of other olefins, in primary forms or with granules of polymers of styrene, in primary forms to mould Energy Meter parts i.e., meter base, meter cover, terminal base and terminal cover at an injection moulding machine.
Further, it is states that the Polycarbonate is more polar then PE, PP, PS but do not say that PE, PP, PS are non-polar. It makes general statement that due to non-compatibility, mixing of polar polymers with non polar polymers results into incompatibility but does not mention, out of PC, PE, PP, PS which polymer is polar or non polar and there is no certain conclusive to say PC, PE, PP and PS cannot be mixed in any case.
Polycarbonate is one of the engineering material and as per the tender document; the electric meter should be manufactured either of polycarbonate or engineering material. Admittedly, all the inputs in question do qualify as engineering materials as per the tender documents.
The suppliers of the goods were not investigated. Merely on the basis of the test report, it has been concluded that the supplies of the other inputs except polycarbonate are not input to manufacturer the final product - in most of the cases, there is a entry at Information Collection Centre (ICC) of the state VAT, which show that the goods have been passed through ICC and reached to the factory of the appellant. Moreover, no cross examination of the persons whose statements have been relied upon were granted cross examination, neither their statements have been taken in compliance to the provisions of Section 9D of the Central Excise Act, 1944.
Further, in the show cause notice although various discrepancies were found during the course of investigation in the records of the appellant, but, the main allegation made in the show cause notice is that the input in question on which cenvat credit sought to be denied are not input of the appellant as were not used in the manufacture of their final product, but, it is mere paper transaction. It means that if it is a paper transaction then no goods have been received in the factory premises of the appellant but the stock found during the course of investigation with the statutory records are showing all the inputs on which cenvat credit sought to be denied were in the stock. It is not the case of shortage of inputs by the revenue.
Also, Revenue has not able to brought on record the evidence to show the diversion of the goods in question. No investigation was conducted with regard to the fund flow or the money has been received back in cash by the suppliers.
The appellant has correctly taken the cenvat credit on the inputs in question, therefore, the impugned order is not sustainable - Penalty also set aside - appeal allowed - decided in favor of appellant.
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2019 (12) TMI 175 - CESTAT BANGALORE
Recovery of excess availed CENVAT Credit - sister concern of the appellant unit had raised the invoice for clearance of 4950 kgs of the input viz., ‘Desmodur-MDI’ as such out of the total quantity of 15750 kgs imported - proportionate credit was required to be availed - time limitation - revenue neutrality - HELD THAT:- Due to bona fide mistake appellant has availed entire credit of ₹ 8,63,199/- on the basis of invoices issued by the sister concern. Further, the sister concern has reversed the entire credit of ₹ 8,63,199/- and the same has been availed by the appellant and both the appellant and the sister concern are engaged in the production of identical goods and therefore, it is not the case of the Revenue that both the units have availed the CENVAT credit. It is a situation of revenue neutral because whatever credit has been passed on by the sister concern has been availed by the appellant and in such a situation, it is a settled law that when it is a revenue neutral situation, suppression of facts and mis-declaration cannot be alleged as there is no revenue loss to the Government and no unjust gain to the appellant.
Time Limitation - HELD THAT:- Entire demand is also barred by limitation because the show-cause notice was issued in 2017 for the period of September 2013 and there is no willful suppression of facts with intention to evade payment of duty - the impugned order demanding reversal of CENVAT credit is not sustainable on merit as well as on limitation.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 117 - GUJARAT HIGH COURT
Stay on issuance of SCN - SCN has been issued by the respondent authority after a period of more than 18 years - HELD THAT:- In the present case, admittedly, the entry in question was mutated in the revenue record on 22.03.2001, which was subsequently certified on 03.08.2001. Now, the impugned show cause notice is issued by the respondent on 09.10.2019 i.e. after a period of more than 18 years alleging that there is breach of provisions contained under Section 54 of the Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands Ordinance, 1949.
Issue involved in the present petition requires consideration - notice returnable on 27.02.2020. In the meantime, proceedings pursuant to the impugned show cause notice are stayed.
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2019 (12) TMI 116 - CESTAT AHMEDABAD
Recovery of Duty on the Readymade Garments exported - demand on the ground that the appellant did not follow the procedure of Notification No. 42 of 2001-CE (NT) dated 26.06.2001 by preparing ARE-1 as provided in Annexure-14 Part-7 of CBEC manual - levy of penalty - principles of natural justice - HELD THAT:- The government has prescribed a simplified procedure particularly for those units who are not clearing their goods in home consumption but entire production is exported. In this regard various circulars were issued from time to time.
It is observed that as regard the readymade garment, there is a specific circular No. 705/21/2003-CX dated 8.04.2003 was issued. According to which the appellant was suppose to follow the simplified procedure as prescribed in the said circular that means the appellant was not required to follow the procedure as prescribed under Notification 42/2001-CE (NT). Therefore, the demand only on the basis that the appellant have not followed the procedure prescribed under Notification 42/2001-CE(NT) will not sustain. However, in any case the exports of goods have to be established. In the present case there is no much dispute raised as regard export of goods.
Also, the appellant by Miscellaneous Application submitted some vital documents which were obtained under RTI, after the Adjudication Order was passed. Those documents were not considered while passing the Adjudication Order. Since the veracity of these documents needs to be verified on factual background, which can be done by the Adjudicating Authority - Therefore, the matter needs to be remanded to the Adjudicating Authority - appeal allowed by way of remand to the Adjudicating Authority for passing a fresh order.
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