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Central Excise - Case Laws
Showing 141 to 159 of 159 Records
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2019 (12) TMI 115 - CESTAT NEW DELHI
Filing of appeal is belated or not - Relevant date for service of order - Time Limitation - Section 11 (B) of Central Excise Act 1944 - Refund of Oil Cess paid in excess - price fluctuation clause - refund arising due to difference in the foreign exchange rate - refund claim was filed before the Assistant Commissioner on 30 May, 2017 pertaining to the period from June 2016 to August 2016 and January 2017 to March 2017 under Section 11 (B) of the Act - according to the Appellant, the appeal that was filed before the Commissioner (Appeals) on 4 September, 2018 was within sixty days from the date of communication of the order and could not have been rejected as being barred by time - refund rejected also on the ground of unjust enrichment.
Whether the order dated 29 August, 2017 had actually been served upon the Appellant on 12 September, 2017 as contended by the Department or on 6 August, 2018 as contended by the Appellant? - Difference of opinion - present matter has been referred to third member by Hon’ble President on account of difference of opinion in the Bench comprising of Hon’ble President and Hon’ble Member (Technical).
HELD THAT:- The relevant dispatch register and speed post register maintained at the Division office have been placed before the Bench earlier and also today for examination. Besides the envelope bearing the speed post no. ER924187517IN issued on 01.9.2017 and the envelope bearing speed post no. ER956130766IN with its contents received by the Appellant on 11.8.2018 are also presented. The size of the former envelope is of 23cm×10cm and is a window envelope, whereas the second one is of 27cm×12cm size. On examination of these envelopes, it has been fairly accepted by all concerned that the first envelope is not fit enough to contain the order dated 29.08.2017, which of eleven pages and legal size paper. Also the postal charges levied for speed post of both letters are different, the second one with higher charge the weight being 90gms, therefore, the order dated 29.08.2017 could not have been dispatched in the envelope containing speed post no. ER9241875719IN, for which minimum speed post charge is levied.
The learned Commissioner (Appeals) on the basis of the report of the Adjudicating Authority dated 20.11.2018 arrived at the conclusion that the Order-in-Original dated 29.08.2017 has been sent by speed post no. ER9241875719IN dated 01.09.2017 and thus the procedure prescribed under Section 37C of the Central Excise Act, 1944 has been complied with since the speed post has not been returned by the postal authorities to the Department - Also, from the correspondences independently undertaken by the learned Commissioner (Appeal) with the postal Department it was revealed that the said speed post letter was delivered.
The appellant even though not disputed the receipt of the said speed post letter no. ER9241875719IN dated 01.09.2017 but contended that it was a letter written by the Range Superintendent to the Appellant in the context of applicability of service tax on the License/royalty fees, and the said envelope did not contain the adjudication order dated 29.08.2017 issued by the Assistant Commissioner. The department could not place any evidence to rebut the said claim of the Appellant - the appellant could able to demonstrate and rebut the presumption that the order dated 29.08.2017 could not have been delivered to them through the speed post ER9241875719IN dated 01.09.2017 and in fact they have not been communicated about the said Order on 12.9.2017 as held by the Ld. Commissioner(Appeals). Therefore, the finding of the learned Commissioner (Appeals) is unsustainable.
In their separate orders, Hon’ble President and Hon’ble Technical Member have arrived at the same conclusion that the Order-in-Original is claimed to have been dispatched through Range office. Examination of the speed post register maintained at the division office indicates the speed post no. ER9241875719IN. In the affidavit of the Asst. Commissioner at para 2 it is stated that the order has been sent to Range office for delivery - further verification of the speed post register, if at all maintained in the Range Office, would not yield any positive result in as much as the register in the Range office would also show the same speed post number. Receipt of the said speed post letter not disputed by the appellant. It is only the content of the speed post letter ER9241875719IN which is in dispute.
As far as the role of the officers of the department is concerned in furnishing the report, it is not clear as to what short of verfication conducted and whether it is ascertained the order dated 29.8.2017 remained to be dispatched at the Range office or at the Division office itself; the affidavit also does not disclose about the lapse relating to delivery of the Order - it remains with the authority to examine internally about the lapse on the part of the officers. But, as far as the appellant is concerned, they should not made to suffer as the order has been communicated only on 06th August, 2018, hence there is no delay in filing the appeal.
The findings and conclusion of the Hon’ble President that order dated 29.08.2017 has been communicated to the Appellant only on 06.08.2018, and the Appeal has been filed before Commissioner(Appeals) within the time limit prescribed under Section 35(1) of CEA,1944, is agreed upon - the impugned Order deserves to be set aside and the matter be remanded to the learned Commissioner (Appeal) to decide the issue on merits.
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2019 (12) TMI 114 - CESTAT AHMEDABAD
Valuation - inclusion of cost of packing material in assessable value - case of the department is that since the packing material i.e. corrugated boxes were supplied free of cost by the buyers, the cost of the same needs to be included in the assessable value as in the form of supply of corrugated box, there is also an additional consideration flowing directly or indirectly from the buyers resulting in under valuation of Excisable goods and short levy of duty - extended period of limitation.
HELD THAT:- From section 4 it can be seen that only in cases where the transaction value is sole consideration such transaction value shall be the Assessable Value for charging of Excise Duty. However, in the present case apart from the transaction value the packing material supplied Free of Cost by the customer was also used by the appellant. The value of such packing material was not included. When any Excisable product is manufactured and cleared the value of such goods shall be the total value of the goods in the form it is cleared from the factory of the Assessee. It is immaterial that whether a part of the material contained in the final product to borne the cost.
In the present case undisputedly the case of the appellant i.e. Metal Container cleared were packed in the corrugated boxes. Therefore, the value of the Metal Containers duly packed in the corrugated box has to be valued. Since the appellant have charged the value excluding the Cost of packing material the revenue is right in including the Cost of the packing material for a very simple reason that the goods were cleared duly packed in such corrugated boxes. Merely because the corrugated box was supplied by the customer that does not make difference as far as inclusion of cost of packing material required to arrive at the Assessable value - Since the Transaction Value is not the sole consideration as the packing cost was not included the value has to be determined resorting to the Valuation Rules made by authority of Section 4.
It is absolutely clear that the said rule was made amongst other circumstances for the purpose of inclusion of Cost of packing material, if it is supplied Free of Charge by the buyer. Therefore, by virtue of the above Rule 6 read with Explanation 1 Clause-iii the value of packing material supplied Free of Cost by the buyer mandatorily needs to be included in the price of final product. Therefore, in view of Section 4 read with Rule 6 there is absolutely no ambiguity on the issue involved in the present case in as much as the cost of corrugated boxes supplied by the buyer to the appellant is includable in the Assessable Value.
Every goods manufactured is otherwise complete in its manufacturing before packing. However, even though the packing is part of the manufacturing activity or otherwise, the Excise Duty is chargeable on the value of the goods in the form it is cleared from the factory of the manufacturer. In the present case, there is no dispute that the Metal Containers manufactured by the appellant are packed in the corrugated box and the same duly packed are cleared for sale to their customers. Therefore, since the goods are cleared in the packed form, the cost of packing material needs to be included in the Assessable value - Hence the argument of the appellant that the packing of the Metal container is beyond the stage of manufacturing will not help as long as the Valuation of goods for the purpose of charging Excise Duty in the form it is cleared.
Extended period of limitation - HELD THAT:- When the supply of corrugated box Free of Cost by the customer to the appellant was declared by the appellant to the department, it was open for the department to make out a case if they desire and issue the Show Cause Notice well within the stipulated time period of one year but despite all the details available with the department the Show Cause Notice was not issued in the normal period. In this fact the demand for the period before one year of the date of Show Cause Notice is time barred and the demand for extended period is set aside.
On merit the demand is sustainable and on Limitation demand for the extended period is set aside - appeal allowed in part.
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2019 (12) TMI 113 - CESTAT BANGALORE
Doctrine of merger - Proceeding against new proprietor of the company, old proprietor, being deceased - CENVAT credit in respect of input lying in stock or in process or contained in final product lying in stock on the date of surrendering of registration - HELD THAT:- Tribunal has discussed the applicability of Section 11 to the successor and while observing that the provisions of Section 11 of Central Excise Act, 1944 cannot be invoked to demand duty on the successor, CESTAT has set aside the impugned order. We find that the present appeal is also against the same impugned order. When the impugned order is already set aside by the Tribunal; no application for rectification of the mistake apparent on record has been filed by the Department and as the order of the Tribunal is not negated by any higher judicial forum, we find that the impugned order is non est.
Moreover, the principal on which the appeal was made, i.e., the applicability of proviso to Section 11 to the successor, before 10/09/2004 was also decided in favour of the appellants and the same was upheld by the High Court - As the impugned order has already been set aside, the present appeal gets consequentially merged with the earlier order passed by the Tribunal.
The present appeal is to be held to have been allowed earlier. We find that no intervention is required by this Bench - Appeal disposed off.
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2019 (12) TMI 112 - CESTAT BANGALORE
Benefit of N/N. 67/95 - Captive consumption - molasses, denatured spirit, ethanol, etc. - denial of benefit on the ground that molasses has been consumed in the manufacture of non-excisable ethyl alcohol - HELD THAT:- Tribunal has already passed series of order in respect of the same issue. Therefore, the issue is no longer res integra - This Bench in appellant’s own case BANNARI SMMSN SUGAR LTD VERSUS C.C.,C.E. & S. T-MYSORE [2018 (2) TMI 813 - CESTAT BANGALORE] has observed that rectified spirit which is not used for human consumption is nothing but ethyl alcohol and is finding place in tariff item no. 22072000.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 111 - CESTAT KOLKATA
Goods supplied to Mega Power Projects under International Competitive Bidding - benefit of N/N. 6/2006-CE dated 01.03.2006 (serial no. 91) and subsequent N/N. 12/2012-CE dated 17.03.2012 (serial no. 336) - exemption denied on the ground that the subject goods are not unconditionally exempted from customs duty when imported into India as per the corresponding Customs N/N. 21/2002-Cus dated 01.03.2002 as amended and subsequent N/N. 12/2012-Cus dated 17.03.2012 as amended - HELD THAT:- The goods have been cleared by the appellants to the specified Mega Power Projects against International Competitive Biddings and the said facts have duly been recorded in the impugned order and there is no dispute on the said facts. The notifications under which exemptions have been claimed by appellants are subject to condition that the said goods, when imported into India, are exempted from payment of customs duty.
In the instant case, since the goods have been supplied for setting up of Mega Power Projects, we find that the learned Commissioner in his adjudication order has not negated the submissions made by the appellant regarding the availability of the exemptions from customs duty. Had the said goods been imported from outside India, the same would have been eligible for exemption as ‘projects import’ as available under the aforesaid Notification 21/2002.
The entries in the Excise Exemption Notifications as availed by the assessee appellant in column No. (2) for reference of Chapter or heading specifically states “Any Chapter”, which clearly implies that goods sought to be cleared by assessee under the said exemption entries may fall under any of the chapter headings of central excise tariff with the only condition that they are supplied under International Competitive Bidding which are exempted from customs duty - The observation made by the learned Commissioner to deny the exemption that “the goods manufactured by appellant i.e. cable tray and accessories falling under chapter subheading 73089090 which is used as support for laying the cable that is structures cannot be treated as machines, spare parts or raw materials to be used in making such goods of chapter 84” is completely irrelevant for the reason that goods falling under any of the chapter headings of Central Excise Tariff is exempted.
The supply of subject goods in the instant case for Mega Power Project under International Competitive Bidding is on record and not in dispute - the appellant is legally entitled to exemption from payment of central excise duty and thus the duty demand is not sustainable.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 110 - CESTAT HYDERABAD
CENVAT credit - Goods Transport Agency (GTA) in relation to transportation of goods from the factory and depots to the buyer’s premises - credit denied on the ground that the documents furnished by the appellant pertain to clearances of final products from the factory to the buyer’s premises - HELD THAT:- Undisputedly, cement has been sold in this case on FOR destination basis for delivery at the buyer’s premises by the supplier. Cenvat Credit Rules permit availment of Cenvat credit on GTA services up to the place of removal. The question is whether in such a case, whether Cenvat credit on outward transportation to the buyer’s premises is admissible.
Identical issue was dealt with by the Hon’ble Apex Court in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] where it was held that Cenvat Credit on goods transport agency service availed for transport of goods from place of removal to buyer’s premises was not admissible to the respondent.
The learned adjudicating authority must be given an opportunity to examine the present case in the light of this judgment and also all the documents relied upon by the appellant to assert that they are entitled to Cenvat credit which has been denied to them as the purchase orders clearly indicate that sale was on FOR buyer’s premises basis and decide the entitlement of Cenvat credit - thus, without passing any remarks on the merits of the case, the impugned order is set aside and the matter is remanded to the adjudicating authority to pass a fresh order after considering this judgment and following principles of natural justice.
Appeal allowed by way of remand.
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2019 (12) TMI 109 - CESTAT NEW DELHI
Valuation - inclusion of Sales Tax subsidy in assessable value - Whether the Sales Tax subsidy received in the form of VAT-38B challans which has been used to pay VAT/CST liability of the subsequent period, amounts to retention of VAT/CST amount collected by the Appellants from the customers and thus liable to be included in the transaction value of the final products of the Appellants?
HELD THAT:- There is no justification for inclusion of VAT amount paid by the assessee using VAT-38B Challan in the assessable value.
The order impugned in the appeals, so far as it relates to the present four Appellants, cannot, therefore, be sustained - appeal allowed - decided in favor of appellant.
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2019 (12) TMI 108 - CESTAT NEW DELHI
Levy of excise duty - mobile phone battery and LED Bulb - taxable at 12.5% excise duty on mobile phone battery and LED Bulb or not - General Exemption Notification No. 46 dated 01 March, 2011 or benefit of General Exemption Notification No. 50 dated 17 March, 2012 for LED Bulb - whether battery chargers, PC connectivity cables, memory cards and hands-free headphones of mobile handsets are restricted to accessories or cover parts and components of mobile handsets also?
HELD THAT:- A bare perusal of the description of excisable goods leaves no manner of doubt that the aforesaid qualify accessories only and have no relation to parts or components because it cannot be doubted that battery chargers, PC connectivity cables, memory cards and hands-free headphones of mobile handsets are not parts or components of mobile handsets and are accessories. If that be so, mobile phone battery is a part or component of the mobile handset because without a battery, the mobile handset cannot function. Such being the position, the Commissioner fell an error in concluding that the mobile phone battery would not be entitled to the benefit of the General Exemption Notification dated 01 March, 2011. The imposition of penalty or interest, therefore, also cannot be sustained.
LED Bulbs - HELD THAT:- The Appellant is not contesting the finding recorded by the Commissioner in relation to imposition of excise duty on LED bulbs, it is not necessary for us to deal with this issue.
Time limitation - HELD THAT:- The issue of limitation also is not required to be addressed since it has been held that the Department was not justified in denying the benefit of the General Exemption Notification dated 01 March, 2011 for imposition of duty on mobile phone battery.
The impugned order, insofar as it directs the Appellant to pay Central Excise Duty on mobile phone charger and with interest and penalty is, accordingly, set aside - appeal allowed.
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2019 (12) TMI 107 - CESTAT NEW DELHI
Recovery of the alleged short paid excise duty - delay of 10 days in filing appeal - HELD THAT:- The lacuna noticed against the appellant is that he was clearing his manufactured finished goods without paying the excise duty. Finished goods and the stock taking thereof was conducted at the time of search of four premises of the appellant which was done in the presence of the appellant’s authorized person and even in the presence of independent witnesses. There has been specific details of the stock of finished goods as was found available in the premises of the appellant and was seized by the Department.
It is apparent that there was no denial on part of the appellant at the time of said such search, for stock found and seized finished goods. It is only six months after that the appellant came up with a plea that the stock as was found at the time of search was not of finished goods. Except the said submission there is apparently no such documentary evidence produced by the appellant which may falsify the details of six various kinds of final goods and the respective quantity as was got recorded in the panchnama on 21.7.2014.
The mere submission of the appellant that since the testing and inspection by their buyers was not yet conducted that the goods could not be called as finished goods is also not tenable for want of specification of testing and inspection. In the given circumstances, that appellant has violated rule 10 of Central Excise Rules 2002. There is no infirmity in the order under challenge while confirming the proposal not only of the demand of not paid excise duty but also of the confiscation.
The redemption fine of ₹ 4,08,570/- as was imposed and as has already been deposited by the appellant is also hereby denied to be refunded - the appeals stands dismissed not only for want of prosecution on part of the appellant but also for want of any merits supporting his case.
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2019 (12) TMI 106 - CESTAT NEW DELHI
Clandestine removal - sponge iron - shortage of stock - demand based on documents and even the statement of the proprietor of said Kailash Traders - case of appellant is that the major part of demand has been dropped by the adjudicating authority below for want of any concrete/corroborative evidence and holding that the entries found in the 3rd parties document are not reliable - HELD THAT:- No doubt, the statement of Mr. Kejriwal has recorded inability on his part to give the details about the noticed shortage. However, the fact still remains is that based upon the noticed shortage department has alleged the clandestine removal and that it has already been observed by the adjudicating authority below that Department is not able to prove the allegations.
Law has been settled by catena of judgments that clandestine removal is a serious charge. The burden to prove the same is required to be discharged by the Department by production of sufficient and tangible corroborative evidence - As already held by the adjudicating authority that there is no such evidence. Department is not in appeal against the said observations as well.
Once this is the fact of the present case, mere shortage in the stock as noticed, that too, on the basis of eye estimation only, the same cannot be held to be convincing corroborative evidence even qua the alleged shortage.
Observing that except the statement of the appellant’s Director, there is no other evidence produced by the Department to corroborate the noticed shortage - demand do not sustain - appeal allowed - decided in favor of appellant.
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2019 (12) TMI 63 - SC ORDER
Area based exemption - proof of filing of declaration - exemption from payment of Central Excise under the Notification No. 50/03-CE, dated 10.06.2003 - whether the instant appeal raises a substantial question of law for adjudication by this Court? - it was held by the High Court that the appellant was obliged to establish that it had actually applied for the benefit of exemption under the Notification dated 10.06.2003 through 2nd Declaration filed on 13.04.2005 or that such a Declaration was available in the office of Assistant Commissioner, Central Excise. The appellant has miserably failed to discharge such onus.
HELD THAT:- There is nothing to interfere with the impugned judgment and order passed by the High Court - SLP dismissed.
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2019 (12) TMI 62 - SC ORDER
Permission for withdrawal of petition - the petitioner(s) intend to pursue Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Process amounting to manufacture or not - manufacture of "Harrison" brand locks - HELD THAT:- The Special Leave Petitions and pending application(s) are dismissed as withdrawn.
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2019 (12) TMI 53 - CESTAT NEW DELHI
Clandestine removal of finished goods - No corroborative evidences - CENVAT credit - HELD THAT:- There is no categorical admission of clandestine removal by the Director of the appellant. This Tribunal have held that only for the shortage found at the time of physical verification, does not lead to the conclusive evidence of clandestine removal - Accordingly, the charge of clandestine removal is not sustained, there is no corroborative evidence against the appellant.
CENVAT Credit - duty paying invoices - credit availed on supplementary invoices raised by South Eastern Coalfields Limited (a PSU) for supply of coal to the appellant - HELD THAT:- Credit is allowed placing reliance in the case of M/S JAYPEE REWA PLANT VERSUS CCE&ST, JABALPUR [2018 (10) TMI 391 - CESTAT NEW DELHI] where it was held that the appellant is entitled to take cenvat credit on the supplementary invoices - credit allowed.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 51 - CESTAT MUMBAI
CENVAT Credit - recovery pertaining to the clearance of goods effected to ‘developers’ of ‘special economic zones’ - exclsusions of availing CENVAT Credit - rule 6(3) of CENVAT Credit Rules, 2004 - HELD THAT:- The functioning and privileges of ‘special economic zones’ are governed by the Special Economic Zones Act, 2005 which, has defined ‘exports’ in section 2(m) therein to include clearances by units in the domestic tariff area to ‘developers’ and ‘units’. Section 51 of Special Economic Zones Act, 2005 provides that, in the event of any inconsistency with any other law, these would prevail. Accordingly, clearances to developers in special economic zone are ‘export’ and, thereby, within the exclusions prescribed in rule 6(5) of CENVAT Credit Rules, 2004.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 13 - CESTAT BANGALORE
Clandestine removal - job-work - contracts of fabrication of structures and erection of the same in various sites of builders - it is alleged that the appellants have manufactured excisable goods and cleared them without payment of duty - corroborative evidences or not - HELD THAT:- It is abundantly clear from the work orders that the work has been of a composite nature and fabrication of large items has been done at the site. Therefore, it is not correct to allege that the entire amount received by the appellants as shown in the balance sheet pertains to the value of excisable goods alleged to have been manufactured.
The allegation of clandestine manufacture and clearance is a very serious charge. The department was required to prove right from the procurement of raw material, use of raw material along with other inputs, deployment of labour, consumption of power, manufacture of final products, transportation of final products to the alleged destinations and financial flow there upon - None of the above parameters have been conclusively addressed by the Department. In fact, the appellant claimed and has demonstrated the figures from the balance sheet pertaining to the power consumption in the unit. No contra evidence has been adduced by the Department.
There are force in the arguments of the appellants that the structures fabricated and erected by them are so huge that it would be neither feasible nor economical to transport them from their factory premises to the premises of the projects. In the case of projects undertaken at other places than Bangalore, it will be fallacious to assume that such structures are transported to far of places like New Delhi, Bellary, Baddi, etc. Similarly, no proof of deployment of labour and use of other raw material, etc., has been put forward.
From the statement of Mr. Mohammed Yamin Khan, it is only evident that sometimes they fabricate smaller items in the factory. As discussed above, we find that for this reason, it cannot be said that they have manufactured the entire goods in their factory premises. Moreover, even if there is an oral evidence in the form of a statement, it requires to be corroborated by documentary evidence - there are no such evidence has been put forth. Under the circumstances, we find that the allegations of clandestine manufacture and removal do not sustain.
Penalty - HELD THAT:- When the duty liability is not sustained, consequentially, the penalties also do not sustain.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 12 - CESTAT AHMEDABAD
Suo-moto credit of duty paid - price revision clause - compounded levy scheme - the appellant was entitled for refund on pro-rata basis for reduction in the price, for the period from 13 April 2010 to 30 April 2010, as per 5th proviso to Rule 9 of Chewing Tobacco & Un-manufactured Tobacco Packing Machines (Capacity Determination & Collection of Duty) Rules, 2010 - HELD THAT:- The Chewing Tobacco & Un-manufactured Tobacco Packing Machines (Capacity Determination & Collection of Duty) Rules, 2010 has explicitly provided that in case of revision of rate of duty, the department should itself refund the differential duty paid which is in excess of the revised rate.
Proviso to Rule 9 clarifies that there is no need of filing any application. Department was duty bound to give refund by 20th day of the following month. Therefore, the appellant’s action of taking suo-moto credit on 20 May 2010 is in accordance with the 5th proviso to Rule 9 of Chewing Tobacco & Un-manufactured Tobacco Packing Machines (Capacity Determination & Collection of Duty) Rules, 2010 - there are no illegality or incorrect in taking suo-moto re-credit by the appellant. Therefore, the order inasmuch as for demand of differential duty and penalty, is set-aside.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 11 - CESTAT NEW DELHI
Clandestine removal - confiscation - redemption fine - manufacture of goods in the brand name which was not registered - HELD THAT:- In the instant matter the appellant is neither challenging the Central Excise duty nor interest or penalty, rather the same have been accepted and deposited by the Appellant immediately after the passing of the Order-in-Original by the Adjudicating Authority - Had the department accepted the request of the Appellant and granted the benefit of notification No.01/2011 dated March 01, 2011 as amended vide Notification No.16/ 2012 CE, dated 17.3.2012, which was later on appreciated and accepted by the Adjudicating Authority, then the matter would have been settled even without the issuance of show cause notice - The Appellant had shown the bonafide by depositing the amount of duty along with interest and penalty and did not contest the same.
In view of the facts of the present case this is not a fit case for confiscation of the goods and this case cannot be equated with the case of attempt to clear the goods clandestinely - the redemption fine is liable to be set aside.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 10 - CESTAT NEW DELHI
Service of order - compliance with the time Limit for filing appeal - whether the order dated 29.08.2017 was delivered to the appellant on 12.09.2017 or the order was delivered on 06th August, 2018 by hand delivery/11th August, 2018 through speed post, and the time limited prescribed under Section 35(1) of CEA, 1944, has been adhered to or otherwise? - difference of opinion - present matter has been referred to third member by Hon’ble President on account of difference of opinion in the Bench.
HELD THAT:- The relevant dispatch register and speed post register maintained at the Division office have been placed before the Bench earlier and also today for examination. Besides the envelope bearing the speed post no. ER924187517IN issued on 01.9.2017 and the envelope bearing speed post no. ER956130766IN with its contents received by the Appellant on 11.8.2018 are also presented. The size of the former envelope is of 23cm×10cm and is a window envelope, whereas the second one is of 27cm×12cm size. On examination of these envelopes, it has been fairly accepted by all concerned that the first envelope is not fit enough to contain the order dated 29.08.2017, which of eleven pages and legal size paper.
The learned Commissioner (Appeals) on the basis of the report of the Adjudicating Authority dated 20.11.2018 arrived at the conclusion that the Order-in-Original dated 29.08.2017 has been sent by speed post no. ER9241875719IN dated 01.09.2017 and thus the procedure prescribed under Section 37C of the Central Excise Act, 1944 has been complied with since the speed post has not been returned by the postal authorities to the Department. Also, from the correspondences independently undertaken by the learned Commissioner (Appeal) with the postal Department it was revealed that the said speed post letter was delivered - the appellant even though not disputed the receipt of the said speed post letter no. ER9241875719IN dated 01.09.2017 but contended that it was a letter written by the Range Superintendent to the Appellant in the context of applicability of service tax on the License/royalty fees, and the said envelope did not contain the adjudication order dated 29.08.2017 issued by the Assistant Commissioner. The department could not place any evidence to rebut the said claim of the Appellant.
In the present case the appellant could able to demonstrate and rebut the presumption that the order dated 29.08.2017 could not have been delivered to them through the speed post and in fact they have not been communicated about the said Order on 12.9.2017 as held by the Ld. Commissioner(Appeals). Therefore, the finding of the learned Commissioner (Appeals) is unsustainable.
In their separate orders, Hon’ble President and Hon’ble Technical Member have arrived at the same conclusion that the Order-in-Original is claimed to have been dispatched through Range office. Examination of the speed post register maintained at the division office indicates the speed post.
The findings and conclusion of the Hon’ble President that order dated 29.08.2017 has been communicated to the Appellant only on 06.08.2018, and the Appeal has been filed before Commissioner(Appeals) within the time limit prescribed under Section 35(1) of CEA,1944, is agreed upon - the matter is remanded to the learned Commissioner (Appeal) to decide the issue on merits.
This order may be placed before the Division Bench for passing the Final Order.
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2019 (12) TMI 9 - CESTAT CHANDIGARH
Demand of interest for delayed refund - relevant date for calculation of refund - earlier the amount was deposited towards recovery of refund proceedings - case of appellant is that they are entitled to claim interest from the date of deposit of the amount till its realization as the amount paid by the appellant as was not a duty - whether the appellant is entitled to claim interest from the date of deposit till its realization of the amount?
HELD THAT:- The issue decided in the case of M/S. FUJIKAWA POWER AND M/S. KENZO INTERNATIONAL VERSUS CCE & ST, CHANDIGARH-I [2019 (11) TMI 1197 - CESTAT CHANDIGARH] where it was held that the appellants are entitled to claim interest from the date of payment of initial amount till the date its refund @ 12% per annum.
Thus, the appellant is entitled to claim the interest on delay refund from the date of deposit till its realization. The interest on the refund shall be payable @ 12% per annum - appeal allowed - decided in favor of appellant.
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