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Central Excise - Case Laws
Showing 1 to 20 of 100 Records
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2023 (3) TMI 1556
Failure to appreciate that the onus lay on the respondent to prove that the conditions imposed in specific Central Excise Notifications were satisfied in the instant case - failure to discharge 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 or not.
HELD THAT:- The learned Tribunal had disposed of a batch of appeals and in one such appeals CEXA/4/2007 was filed by revenue against the impugned order of the Tribunal. By judgment dated 9th September, 2022 [2022 (9) TMI 561 - CALCUTTA HIGH COURT] the appeal filed by the revenue was allowed. Following the said decision other connected appeal filed by the revenue was also allowed.
The instant appeal filed by the revenue is allowed and the substantial questions of law are answered in favour of the revenue.
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2023 (3) TMI 1542
Reversal of Cenvat credit taken by the assessee on the inputs found short at the time of stock taking during the period from April, 2011 to December, 2011 - Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A(1) of the Central Excise Act, 1944 - recovery alongwith interest and penalty as well - HELD THAT:- The issue is no longer res integra and has been settled in appellant’s own case M/S TATA MOTORS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-I [2021 (11) TMI 830 - CESTAT MUMBAI] - Tribunal in the said decision has observed 'CENVAT Credit cannot be denied to the appellant on a theoretical variance in the inputs.'
There are no merits in the impugned order and the same is set aside - appeal allowed.
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2023 (3) TMI 1525
Levy of Excise duty - duty on the scrap generated / cleared from the workers’ premises - Rule 4(5)(a) of the Cenvat Credit Rules 2001 - HELD THAT:- The issue contained in these appeals have been considered in Final Order No.41307/2017 dated 26.7.2017.
It is also noticed that the decision in Final Order No.41307/2017 dated 26.7.2017 was based on Rule 4(5)(a) of the Cenvat Credit Rules 2001, whereas the impugned orders have invoked Rule 4(5)(a) of Cenvat Credit Rules 2004. On perusal of Rule 4(5)(a) of Cenvat Credit Rules 2004 it is found that the said Rule has only been made further liberal and nowhere states that the waste and scrap generated at the job workers end makes the principal manufacturer liable to payment of duty on such waste and scrap.
In as much the legal issue involved in this appeal has already been settled, the impugned order set aside - appeal allowed.
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2023 (3) TMI 1510
Interest payable to an assessee on delayed refund of exemptions - HELD THAT:- The appellant Department is directed to make payment of the interest on delayed refund to the respondent assessee within a period of 2(two) months from today. However, the assessee shall furnish an undertaking that in case the Revenue succeeds in the aforesaid SLP, the interest amount paid under this order shall be reimbursed to the Department.
Appeal disposed off.
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2023 (3) TMI 1505
100% EOU - Modvat credit admissible on the duty paid by an 100% EOU during the relevant period i.e. from January 1998 to March 2000 - argument of the Revenue is that both the authorities below have erred in allowing credit on the component of the Basic Customs Duty(BCD) and other duties of customs which are considered while computing the Excise duty payable by an 100% EOU while clearing their goods in DTA as per N/N. 2/95-CE dt. 04/01/1995.
HELD THAT:- The Revenue’s argument is marred with confusion inasmuch as the goods manufactured by an 100% EOU and allowed to be sold in India, instead of export, the amount duty payable (50% of the applicable customs duties) has been prescribed under Notification No.2/95-CE dt. 4/1/1995; even though the nature of duty payable by an 100% EOU is excise duty, in computing the BCD and other duties as applicable are considered. This confusion has been addressed in detail by the Larger Bench of the Tribunal in the case of Vikram Ispat [2000 (8) TMI 111 - CEGAT, NEW DELHI] where it was held that 'in agreement with the learned Advocates that the duty which is levied on the goods manufactured and cleared by 100% E.O.Us to the Domestic Tariff Area is a duty of Excise and not a duty of Customs on account of a measure being the Customs duty provided in proviso to Section 3(1) of the Central Excise Act.'
The entitlement for MODVAT credit by the receiving manufacturing unit should always be less than the CVD payable on like articles imported into India. In the present case, the adjudicating authority has categorically through example referring to invoices observed that the additional duty on which the assessee has availed cenvat credit is less than the additional duty on import of like goods at the relevant point of time. Hence, there are no error in such finding warranting interference.
There are no merit in the applications filed by the Revenue - appeal dismissed.
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2023 (3) TMI 1499
Valuation - inclusion in the assessable value - third party inspection charges incurred at the instance of the buyers and subsequently recovered from the buyers - HELD THAT:- The Appellant’s case is that they have submitted the customer’s ledger in which the inspection charges are Sundry Debtors debited to the customer’s account. The reimbursed receipts do not form part of their income and thus this is not an additional consideration. This is also relevant to observe that RITES raised the bills to the Appellant charging Inspection charges as per agreement amongst RITES, the Appellant and the customer. This is variably from the records that the Inspection charges were paid to RITES by the Appellant on behalf of their customers and the same amount was reimbursed by the customers and there is no difference between the amount paid and the reimbursed receipts. Both the amounts are matching.
The impugned order is set aside and the Appeal filed by the Appellant is allowed.
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2023 (3) TMI 1478
CENVAT Credit - removal of inputs can be said to be trading of goods or not - non-payment of 6% amount on value of electricity supplied to the MSEDCL for period from Sept. 2013 to June 2014 - HELD THAT:- Undisputedly EDC is an input for the appellant and they could have cleared the same on reversal of credit taken on the said inputs as per Rule 3 (5) of the Cenvat Credit Rules, 2004. Such removal of the inputs cannot be said to be trading in the inputs and the clearance of inputs against which the appellants have taken the credit need to be dealt in terms of the said rule 3 (5) and not in the terms of Rule 6, ibid.
In case of COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH VERSUS PUNJAB STEELS [2010 (7) TMI 252 - PUNJAB AND HARYANA HIGH COURT], Hon'ble High Court held that Once the rule-making authority has defined the terms specifically and used the same in different provisions consciously, the argument of learned counsel for the Revenue that merely by analogy even if in one provision both the terms have been used, the same should be read in the other provision as well, where it has not been specifically mentioned, has no legs to stand, as the tax cannot be levied merely by inference or presumption.
There are no merits in the impugned order whereby the reversal has been sought to be made in terms of the Rule 6 of the CENVAT Credit Rules, 2004 by treating such removals to be trading in inputs.
It is also settled position in law as per the following decisions that the substantial benefit of proportionate reversal should not be disallowed to the appellants just for reason of procedural irregularities such as non filing of prior declaration or intimation - the demand raised under Rule 6(3)(i) on the ground that the appellants have not filed declaration under Rule 6(3)(ii) read with Rule 6(3A) of CCR, 2004 is erroneous.
The matter needs to be reconsidered by the original authority for determination of the amount to be reversed against the electricity wheeled out to MSEDCL against a price, by application of the formula as prescribed by Rule 6 (3) (ii) read with Rule 6 (3A) - Appeals is allowed and the matter remanded back to original authority to re-determine the amounts to be reversed on the electricity wheeled out.
Appeal allowed by way of remand.
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2023 (3) TMI 1473
Permission for withdrawal of appeal - approval of the Resolution Plan and the subsequent implementation - Appellant prayed that they are not interested in pursuing the Appeals and the same may be dismissed as withdrawn - HELD THAT:- In view of the prayer, as made by the Ld.Advocate, the Appeals filed by the Appellant, are dismissed as withdrawn.
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2023 (3) TMI 1471
CENVAT Credit - inputs gone in the manufacture of the final product viz. LPG cleared at NIL rate of duty under Notfn. No.4/2006-CE dated 1.3.2006, as amended - HELD THAT:- The issue involved in the present two appeals is no longer res integra and covered by the decision of the Tribunal in appellant’s own case RELIANCE INDUSTRIES LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI [2022 (11) TMI 923 - CESTAT MUMBAI] where it was held that the principle stands established that rule 6 of CENVAT Credit Rules, 2004 is inoperable ab initio in such clearances and the credit was allowed.
There are no merits in the impugned order and the same is set aside - appeal allowed.
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2023 (3) TMI 1465
CENVAT credit of service tax paid on charges collected for treatment by M/s.TPL - Department has denied the credit alleging that the activity of effluent treatment is a post-manufacturing activity and therefore not eligible for credit - HELD THAT:- Undisputedly, the effluent treatment of the waste water (hazardous waste) is necessary in order to manufacture the goods. The appellant cannot continue manufacturing of the goods without taking steps for effluent treatment of the waste. The department has denied the credit alleging that the activity carried out by the appellant is an activity which is after the manufacture of goods. The decision of M/S. MARUTI SUZUKI LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III [2009 (8) TMI 14 - SUPREME COURT] is with regard to the eligibility of credit availed on inputs and not on input services. It is not possible for the assessee to avail all types of input services within the factory premises. The decision of Maruti Suzuki Ltd. is not applicable to the facts of this case.
Moreover, the activity of waste water treatment is part of manufacturing activity and any activity which is directly or indirectly in relation to manufacture would be eligible for credit - the credit has been denied without valid reasons. The appellant is eligible for credit. The impugned order disallowing the credit as well as confirming the demand and imposing penalty is set aside.
Appeal allowed.
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2023 (3) TMI 1435
CENVAT Credit - input services - denial of credit on the ground that input service was not used in or in relation to manufacture of finished goods - HELD THAT:- Interpreting the definition of Input Services as per Rule 2 (l) of CENVAT Credit Rules, 2004 for the period prior to 01.04.2011 a larger bench of Tribunal has in case of M/S. RELIANCE INDUSTRIES LTD., VADODRA VERSUS COMMISSIONER CENTRAL EXCISE & SERVICE TAX (LTU) , MUMBAI [2022 (4) TMI 1357 - CESTAT MUMBAI (LB)] held that The definition of “input service” is of wide import and covers not only input services which have a nexus with the manufacture of the final product (covered by the first limb), but also other input services, which do not have such a nexus, and are covered by the other limbs of the definition. Each limb of the definition is independent and, therefore, if an assessee can satisfy any one of the limbs, the benefit of Cenvat credit would be available, even if the assessee does not satisfy the other limbs of the definition.
For the period prior to amendments made in the definition of input services, the outdoor catering services availed by the appellant for providing canteen services to their employees are input services - In view of the Circular No 943/4/2011-CX dated 29.04.2011 the CENVAT Credit availed on these two invoices cannot be denied.
There are no merits in the impugned order, and same is set aside - appeal allowed.
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2023 (3) TMI 1426
100% EOU - Wrong calculation of duty payable by them while discharging duty at the time of clearance of goods to DTA - applicability of N/N. 01/2011-C.E. dated 01.03.2011 - Scope of SCN.
According to department as there is no specific mention that Notification No. 01/2011 applies to EOU, the appellant is not eligible for the benefit and has thus short paid CVD portion of the duty for clearances of goods to DTA.
HELD THAT:- On base perusal of the Order-in-Original, it is found that there are no merits in the argument of the Learned Counsel for the assessee that the Adjudicating Authority has travelled beyond the scope of the Show Cause Notice. In the Show Cause Notice, the allegation is that the assessee is not eligible to avail benefit of the Notification No. 01/2011-C.E. dated 01.03.2011. In the Show Cause Notice it is stated that this Notification is not meant for EOU as there is no specific exemption provided as required under proviso to Section 5A (1) of the Act. Surprisingly, the Adjudicating Authority has decided to quantify the demand of duty as per Notification No. 02/2011 dated 01.03.2011. The concessional rate of duty as per Notification 01/2011-C.E. is 1% whereas the concessional rate of duty as per Notification No. 02/2011-C.E. is 5%. There is absolutely no whisper in the Show Cause Notice about Notification No.02/2011. The Department cannot then quantify and confirm the demand as per Notification No. 02/2011-C.E at a later stage. This finding is indeed beyond the scope of Show Cause Notice. For this reason itself, the Order-in-Original is vitiated and the demand raised therein cannot sustain.
The demand confirmed by denying the benefit of Notification No.01/2011 and by applying Notification No. 02/2011 is not justified and requires to be set aside - The issue is answered in favour of assessee and against Revenue.
Cess included while calculating the demand of duty confirmed by the department - HELD THAT:- The issue is already settled in favour of the assessee by the decision of the Larger Bench of the Tribunal in the case of KUMAR ARCH TECH PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II [2013 (4) TMI 482 - CESTAT NEW DELHI] where it was held that the education cess and S&H cess would be chargeable only once under Section 93 of Finance Act, 2004 and Section 138 of Finance Act, 2007 on the sum of basic customs duty and Additional customs duty - The ratio laid in this case applies and therefore this issue is also held in favour of assessee and against the Revenue.
The impugned order is set aside - Appeal of assessee allowed.
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2023 (3) TMI 1419
Valuation of goods - actual MRP declared on the package is less than 2.5 times the FOB value - declaration of more than one MRP.
SCN relied on Explanation 2(a) to Section 4A of the Central Excise Act, 1944, where more than one MRP is declared, the maximum of such MRPS shall be deemed to be the MRP for the purposes payment of duty and duty is to be discharged on the maximum of such MRP.
HELD THAT:- The appellants are industrial consumers. Therefore, even if the appellants declare MRP at the time of importation, MRP declared thereon should be ignored for the purpose of Standards of Weights and Measures Act, 1976 and rules made thereunder. Therefore, the MRP declared at the time of importation cannot be considered as MRP of the goods imported. Hence, in law, the appellants have declared MRP only once i.e., when the goods were cleared from the Panvel warehouse - The scheme of the Section 4A provides for determination of the value on the basis of the declared MRP/ RSP at the time of clearance. It do not provide for re-determination of the MRP/ RSP by the revenue authorities at the time of clearance. The same can be done only in the manner and subject to the conditions as per Section 4A (4).
The provision of Section 4A (4) do not get attracted, even if the case of revenue is that the imported goods were cleared on payment of duty on the basis of Adhoc value, which was higher than the declared MRP. The Adhoc value based on the thumb rule of 2.5 times the FOB value cannot be the declared MRP but a determined value for the specific purpose of the clearance of the goods by the customs authority at the port of importation. Further the goods cleared from the custom port have suffered manufacturing process as per the section 2 f of the Central Excise Act, 1944 and are not the same goods as cleared from the port.
There are no merits in the impugned order - appeal allowed.
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2023 (3) TMI 1401
Liability of Central Excise duty - scrap generated in the manufacturing process at the job worker's premises should be paid by the principal manufacturer or not - Rule 4(5)(a) of Cenvat Credit Rules, 2004 - HELD THAT:- There are force in the submission of the appellants that Rule 4(5)(a) of the Cenvat Credit Rules, 2002 does not cover the return of waste and scraps.
Vide COMMISSIONER OF CGST BHIWANDI VERSUS VE COMMERCIAL VEHICLES LTD [2018 (5) TMI 1050 - CESTAT MUMBAI], in case of the sister unit of the appellant tribunal held that the appellants were not liable to discharge duty on waste and scrap generated at job worker's end.
There are no merits in the impugned order - appeal allowed.
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2023 (3) TMI 1370
CENVAT Credit - Department issued Show Cause Notice on the ground that the invoices of M/s. Roshanlal Bhagirathmal show the Name and Address of the Agent as the buyer and the present Appellant is shown as consignee - HELD THAT:- Admittedly, there is no dispute that the goods in question have been received by the Appellant in their factory premises and the same were properly recorded in their Books of Account. Even the Invoices in question clearly show the details of the Appellant along with their ECC Number and Central Excise Range and Division etc. The Tribunal in the case of KUNSTSTOFF POLYMERS LTD. VERSUS COMMISSIONER OF C. EX., BHOPAL [2009 (5) TMI 743 - CESTAT, NEW DELHI] has held just because the invoices issued by M/s. SC Enviro Agro India Pvt. Ltd. mention M/s. Sumitomo Chemicals India Pvt. Ltd. as the customer, while at the same time mentioning the appellant as the consignee, will not become invalid document for taking Cenvat credit, we therefore, hold that the impugned order is not sustainable.
The Appellant is eligible for the Cenvat Credit - Appeal allowed.
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2023 (3) TMI 1365
CENVAT Credit - duty paid on the inputs namely craft paper and paper boards purchased from the principal manufacturers - allegation of the department is that the principal manufacturers / suppliers ought to have availed full exemption as per Exemption Notification No.4/2006-CE and should not have cleared the goods under Sl.No.91 paying concessional duty @ 4% - HELD THAT:- The very same issue was decided by the Tribunal in the case of M/S. AKSHERA PAPERS VERSUS THE COMMISSIONER OF CENTRAL EXCISE, SALEM (VICE-VERSA) [2018 (9) TMI 1652 - CESTAT CHENNAI] wherein the Tribunal observed that The issue decided in the case of M/S. SRIPATHI PAPER & BOARDS VERSUS CCE & ST, TIRUNELVELI [2018 (9) TMI 891 - CESTAT CHENNAI], where it was held that the assesse has to necessarily pay an amount equivalent to the credit availed on inputs, inputs in the process of manufacture and inputs in the final products lying in stock either by deducting the amount from the balance available in their books of accounts and, if there is no sufficient balance, then, by way of cash payment. With regard to the balance credit available in the appellant’s books after such reversing as on 31.03.2010, if any, is lapsed.
In the case of M/S. KOVAI MARUTHI PAPER AND BOARDS, M/S. SARASWATHI UDYOG INDIA LTD, SHRI RAM CARTONS, M/S. SRIVARI PACKAGING INDUSTRIES VERSUS CCE, SALEM AND CCE, SALEM VERSUS M/S. SARASWATHI UDYOG INDIA LTD., M/S. KOVAI MARUTHI PAPER AND BOARDS [2018 (5) TMI 474 - CESTAT CHENNAI], the Tribunal had examined whether the principal manufacturers should compulsorily avail exemption at Sl.No.90 which specifies ‘Nil’ rate of duty. The Tribunal followed the decision in the case of Balakrishna Paper Mills and Others – 2015-TIOL-1100 and held that it is not mandatory to avail Sl.No.90 which extends ‘Nil’ rate of duty and that the assessee has the option to pay duty at concessional rate of 4%.
The the demand cannot sustain - appeal allowed.
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2023 (3) TMI 1272
Maintainability of Review petition - HELD THAT:- A false averment has been made that the Review Petition was only dismissed on limitation and thus that was found to be a ground itself, apart from anything else for dismissal of the application. Now, the present Review Petition has been filed in that M.A.! - On examination of the same, we see no reason whatsoever, to entertain this application in view of what has been set out.
The Review petition is dismissed.
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2023 (3) TMI 1271
Recovery of central excise duty or penalty - no personal guarantee for the dues of the company to the respondents - Shell company - existence of any enabling law as may allow the Central Excise Authority to recover any part of the demand from the personal assets of the petitioner - HELD THAT:- There is no denying that there is complete lack of any enabling law that may allow the Central Excise Authority to recover any part of demand raised against the Company from the personal assets of the petitioner. Merely because such demand may have remained outstanding against the Company would not entitle the revenue to proceed to recover the same from the personal assets of Director of the Company.
The counter affidavit also does not indicate any fact as may allow this Court to infer that the Company-an independent juridical entity, against which dues have been determined, was a shell operated by the present petitioner for his own benefit. Unless the revenue authority had looked through the constitution and functioning of the Company in accordance with law, it may never have been enabled to claim the dues determined against the Company, from the personal assets of the present petitioner.
The order dated 17.12.2021 passed by the Assistant Commissioner Central Goods and Service Tax, Division-I, Muzaffar Nagar seeking to recover the dues of the Company from the petitioner is clearly non-speaking. Despite specific objection raised by the petitioner and despite taking notice of the same, no reason has been noted in the impugned order to recover the dues of the Company from the personal assets of the petitioner.
Petition allowed.
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2023 (3) TMI 1210
Constitutional Validity of Rule 8(3A) of Central Excise Rules - discharge of duty without utilizing Cenvat Credit - HELD THAT:- The issue is no more res integra and is squarely covered by the judgement of the Hon’ble Calcutta High Court in the case of M/S. GOYAL MG GASES PVT. LTD VERSUS UNION OF INDIA & OTHERS [2017 (8) TMI 1515 - CALCUTTA HIGH COURT], wherein it is categorically held that when Rule 8 (3A) is declared ultra vires by the different High Courts then the Revenue cannot take a different stand contrary to the said judgements. The Hon’ble Court further declared Rule 8(3A) as invalid which is not stayed by the Hon’ble Supreme Court.
Hon’ble Gujarat High Court in the case of INDSUR GLOBAL LTD. VERSUS UNION OF INDIA & 2 [2014 (12) TMI 585 - GUJARAT HIGH COURT] has declared the words “without utilizing Cenvat Credit” under Rule 8(3A) as ultra vires which means that the assessee can discharge duty by utilizing Cenvat Credit which is what exactly has been done in the instant case by the Appellant - the said judgment has been followed by the Hon’ble Calcutta High Court in the case of Goyal MG Gases Pvt.Ltd. v. UOI cited (supra) which is not stayed by the Hon’ble Supreme Court. The Hon’ble Calcutta High Court in the said case, has declared the provisions of Rule 8(3A) ibid as invalid and further has held that the Revenue cannot take a different stand and parity has to be extended to the assessee.
The demand in the instant case has been raised for contravention of Rule 8(3A) ibid restricting utilization of Cenvat credit during the period of default which provision has been declared ultra vires/invalid by Court, hence the demand cannot be sustained - the demand of duty and the penalties of Rs.6,00,000/- and Rs.1,00,000/- set aside - appeal allowed.
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2023 (3) TMI 1209
Irregular availment of CENVAT Credit - input - steel items such as TMT bars, Chequered Plate, M.S. Angles, Channels, Plates, Joists, Beams, HR Plate, Sheet and Coils, G.C. Sheet etc. - period from November 2006 to March 2008 - HELD THAT:- The issue is no more res integra since the period of dispute is from November 2006 to March 2008 and the amendment to the definition of ‘input’ was made on 07.07.2009 and which was made to be not retrospective. It is the case of the Appellant that the disputed items of iron and steel, cement, TMT Bar, MS Flat, Plate, MS Channel, MS Angle, MS Joist, MS Beam, HR Plate Bar Rods, HR Plate Coil, Mill Plate, GC Sheet, Flange Beam, GP Sheet, GP Coil, HR Sheet, HR Coil etc. were used in the factory in the manufacture of final capital goods and have been used for Kiln Support, Base, Ground Hoppers, Intermediate Bunkers, Conveyor support, Crusher support, screen support and Cooler platform and thus are eligible as inputs and are squarely covered by the definition of ‘input’.
Reliance has been made on the decision of the Tribunal in the case of M/S. SINGHAL ENTERPRISES PRIVATE LIMITED VERSUS THE COMMISSIONER CUSTOMS & CENTRAL EXCISE, RAIPUR [2016 (9) TMI 682 - CESTAT NEW DELHI] where it was held that applying the “User Test” to the facts in hand, we have no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of ‘Capital Goods’ as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat credit.
Support found from the decision of the Hon’ble High Court of Karnataka in the case of COMMISSIONER OF CENTRAL EXCISE, BANGALORE-II VERSUS SLR STEELS LTD. [2012 (9) TMI 169 - KARNATAKA HIGH COURT] where it was held that appellate authority committed a serious error firstly in holding that the storage tank is an immovable property and secondly, on the ground that it cannot be bought and sold in the market, the criteria which is totally unwarranted and assessee is entitled to the benefit of cenvat credit.
The impugned order cannot be sustained and is therefore set aside - Appeal allowed - decided in favour of appellant.
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