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Central Excise - Case Laws
Showing 21 to 40 of 40 Records
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2020 (11) TMI 544
CENVAT Credit - input services used for the Repair and Maintenance Service, etc of wind mills located far away from the factory - applicability of Rule 6(1) of Cenvat Credit Rules, 2004 - HELD THAT:- The explanation inserted to Notification No. 6/2015- CE (NT) dated 01.03.2015 come in to play if the appellant sold the electricity generated the appellant’s counsel has confirmed that they never sold electricity generated from the wind mill - In the present case, appellant have never sold any electricity generated from the wind mill to anybody and , therefore, they are not hit by the mischief Rule 6(1) of CENVAT Credit Rules, 2004.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 542
CENVAT credit - input services - gardening services - appellants are engaged in manufacturing of gear motors - denial on account of nexus - HELD THAT:- The compliance of various environment related laws and factories act mandate clean environment in factory. Thus, the said service becomes essential for functioning of the factory.
Credit allowed - appeal allowed - decided in favor of appellant.
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2020 (11) TMI 540
CENVAT Credit - input - input services - Cement, TMT Bar, Beam, Angle, Channels & Joist etc. - inward transportation services - HELD THAT:- The Ld. Adjudicating authority had confirmed the demand of recovery of Cenvat credit on items such as Cement, TMT Bar, Beam, Angle, Channels & Joist by relying on the judgment of the Larger bench of the Tribunal in the case of VANDANA GLOBAL LTD. VERSUS CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)],. However, the said judgment, as rightly pointed by the Ld. CA has been quashed by the Hon’ble High Court of Chattisgarh. Also, the Hon’ble Calcutta High Court had in the case of SURYA ALLOY INDUSTRIES LTD. VERSUS UNION OF INDIA [2014 (9) TMI 406 - CALCUTTA HIGH COURT] had disapproved the judgment of the Larger Bench. Thus, the Cenvat credit of the items along with Service tax credit of inward transportation for such items is an eligible Cenvat credit upto 06/07/2009 and hence we are of the view that the appeal to this extent ought to be allowed.
The usage of various iron and steels items is to be analysed in light of the decision of the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS LTD. [2010 (7) TMI 12 - SUPREME COURT]. In this judgement, the Hon’ble Supreme Court has referred to the ‘user test’ outlined in the case of COMMISSIONER OF C. EX., COIMBATORE VERSUS JAWAHAR MILLS LTD. [2001 (7) TMI 118 - SUPREME COURT], which lays down the ratio in determining whether particular goods could be categorized as capital goods or not.
As regards the period post 07/07/2009, it is seen from the records that the Appellant has already reversed a substantial amount of Cenvat credit being ₹ 16,29,837/-. Since the issue therein was in respect of interpretation of law, we are of the considered view that there cannot be any deliberate suppression, as alleged in the impugned order.
Appeal disposed off.
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2020 (11) TMI 539
Application for withdrawal of appeal - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- Registry is directed to list the appeal for regular hearing on 28.10.2020.
The Misc. Application for withdrawal of appeal is dismissed as infructuous.
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2020 (11) TMI 490
Reversal of CENVAT Credit - common inputs used for taxable as well as exempt goods - non-maintenance of separate records - Ammonia - intermediate goods/captive consumption - Sl.No.86 of Notification No.12/2012 - period of dispute is April, 2015 to Jan. 2016 and Feb., 2016 to March, 2016 - Extended period of Limitation - HELD THAT:- Evidently, when the appellant clears part of Ammonia being Surplus, on payment of duty, admittedly, the final product being cleared is Ammonia. Therefore, Ammonia becomes the dutiable goods manufactured by the appellant. Majority of the Ammonia so produced, however, is used as an intermediate product and consumed for the manufacture of Urea. Thus, the final product of the appellant is Urea and SSP (exempt). Thus, the captively consumed Ammonia cannot be treated as exempted final product by any stretch of imagination. The final product of the appellant is Ammonia, Urea and SSP, value of which has been taken for computation under Rule 6 (3A).
Revenue is trying to stretch the law in disregard to express provisions of the Act and the Cenvat Credit Rules. Rule 6(3)(i) provides for payment of an amount equal to 6% of value of the exempted goods and 7% of value of the exempted services; or (ii) pay an amount as determined under sub-rule (3A); or (iii) maintain separate accounts - It is further provided under Rule 6(3A) (b) to apply the standard formula for calculating the amount to be reversed or the ineligible Cenvat Credit.
Rule 6 is attracted only in case, where an assessee manufacturers two output goods or is rendering two output services, where one is exempt and the other dutiable. Further, Statute is very clear, under the Rule 6(3)(ii) read with Rule 6(3A), which clearly provides for eligibility of input services in or in relation to the manufacture of exempted goods, and its clearance upto the place of removal shall be calculated proportionately - it is evident from the plain reading of the Rule that it speaks about the goods manufactured and removed during the financial year, and the intermediate products emerges during the manufacture of exempted final products.
Extended period of Limitation - HELD THAT:- The issue being wholly interpretational, extended period of limitation is not invokable.
The case of the Revenue is mis-conceived and the show cause notice is bad - Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 434
Clandestine manufacture and removal - MS Ingots - Excess consumption of electricity - third party evidences - corroborative evidences or not - demand based on assumption and preseumption - demand of Central Excise duty along with imposition of Personal Penalty - xtended period of limitation - HELD THAT:- It is found that the demand has been confirmed only on the basis of the unsubstantiated evidence being the private records of the two brokers viz. M/s.Monu Steels and Kailash Traders and the statement of their proprietors. Further, it is found that the author of private records of M/s. Monu Steels - Mr. Bal Mukund was never examined by the Revenue. Further, M/s. S.K. Pansari during his cross examination has admitted that the said records were maintained under his instructions by Shri Bal Mukund Pansari. Further, Revenue have failed to find out any inconsistency in the records of the appellant, nor there is any seizure of any consignment of goods being raw materials or finished goods, being transported without the documents or clandestinely.
It is also observed that although the third party records are good evidence of suspicion of clandestine activity, but the same cannot be adopted for concluding the charge of clandestine removal in the absence of corroborative evidence. Further, in spite of the names being found of the parties, to whom the alleged clandestine removal has been despatched, there is no further inquiry made from the alleged receivers of goods - the demand against the appellant is not sustainable, in absence of sufficient evidence of clandestine manufacture and removal of the goods.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 433
Cross-examination of witnesses denied - violation of principle of natural justice - Section 129A (i) of the Customs Act, 1962 - HELD THAT:- To the earlier proceedings when the matter was remanded vide order dated 19.09.2014, this Tribunal has directed the adjudicating authority to consider the plea for cross examination of deponents by the adjudicating authority. By going through the impugned order, the cross examination of the persons has been rejected without assigning any reasons, therefore, the arguments made by the Ld. AR are futile as the impugned order for rejection of cross examination is not a speaking order. The way of working of the adjudicating authority cannot be appreciated in these terms - There are no merit in rejecting the request of cross examination without assigning any reasons.
The adjudicating authority is directed to consider the request of the appellant for cross examination of the persons and personal hearing be granted for the said request pass a speaking order whether cross examination can be granted or not - appeal allowed - decided in favor of appellant.
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2020 (11) TMI 432
SSI Exemption - supplies made to merchant exporters against Form 'H' and Form ‘ST-49’ - denial of exemption under Notifications dated March 1, 2002 and March 1, 2003 by treating the supplies made to merchant exporters against Form 'H' and Form ‘ST-49’ as clearances for home consumption - HELD THAT:- The value of branded goods (printed material) cannot also be included in the aggregate value of clearances for the purpose of SSI exemption. The appellant manufactures and clears the printed material for home consumption which do not bear any branded name. The appellant also manufactures printed material which bears the brand name of the buyers. In terms of paragraph 2(vii) of Notifications dated March 1, 2002 and March 1, 2003, one of the conditions for availing SSI exemption is that the aggregate value of clearances of all excisable goods for home consumption does not exceed ₹ 3 Crore (4 Crore w.e.f 01.04.2005) in the preceding financial year. In paragraph 3A, certain categories of clearances have been excluded for determining the aggregate value of clearances under paragraph 2(vii). One such category under clause (b) of paragraph 3A is clearances bearing the brand name or trade name of another person that are ineligible for exemption in terms of paragraph 4. Thus, in terms of paragraph 3A(b) of the Notification, clearances bearing the brand name or trade name of another person are not includible in the aggregate value of clearances for paragraph 2(vii).
There was no violation of the procedure by the appellant and in any case, procedural infraction, if any, cannot to be a ground to deny of substantive benefit of SSI exemption to the appellant.
Extended period of limitation - HELD THAT:- As the benefit of SSI exemption could not have been denied to the appellant, it is not necessary to examine the contention advanced on behalf of the appellant that the extended period of limitation could not have been invoked.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 352
Refund of Excise Duty - allegation that the incidence of duty not passed on to the buyer - Revenue submitted that not only the show cause notice clearly refuted the claim of the Assessee to claim such refund, inter alia on the grounds of 12B Presumption, but also on the ground that the Appellant/ Assessee was not entitled to any refund of such Excise Duty - HELD THAT:- The scheme of the Act contained in Section 11B of the Act read with other relevant provisions of the Central Excise Act as it then prevailed before the introduction of GST regime with effect from 1 July 2017, with regard to refunds is very clear viz., that it is only the person who has borne the incidence of Excise Duty, which was not leviable in law is entitled to claim refund of the same, subject to his locus standi and the limitation prescribed in Section 11B of the Act.
There is hardly any doubt on facts in the present case, where, admittedly, the invoice of the appellant for the supply of raw naptha which is a dutiable product, was raised by the appellant M/s.CPCL on its marketing company M/s.IOCL, which is a separate company, who in turn raised invoice on the purchaser or buyer of the said raw naptha M/s.PPN, who in turn, manufactured power by use of such raw naptha and other raw materials. If at all, duty can be said to have been collected in excess on account of over valuation of the supplies, it is the consumer of the said raw material/raw naptha, viz., M/s.PPN who could have claimed the refund of Excise Duty as per the settled legal position. Merely because M/s.IOCL issued a credit note to the buyer M/s.PPN, it cannot be said that the incidence of Excise Duty was not passed on to the purchaser M/s.PPN. Once the incidence of Excise Duty has been passed on, whether it is further passed on to the ultimate buyer or consumer or not, is not the relevant question. The appellant Assessee M/s.CPCL, cannot be said to have borne any incidence of Excise Duty illegally levied and therefore, the right of the appellant Assessee to claim any refund cannot arise.
The question raised before us relates to question of locus standi of the person who is claiming the refund and not on what basis it is claimed. Whether on the basis of Credit Note issued by M/s.IOCL, a refund of Excise Duty could be made or not is not the question, and the claim of the Assessee is not fortified merely because the show cause notice refuted the claim of the Assessee on the basis of credit note alone - The facts are clear and undisputed and there is no material or facts available on record which even prima facie could indicate that the appellant Assessee has borne the incidence of Excise Duty which in law could not be charged from it. The moment it raised the invoice on M/s.IOCL and M/s.IOCL issued Invoice on M/s.PPN, the incidence of Excise Duty is definitely passed on to the buyer or consumer of raw naptha, viz., M/s.PPN. Therefore, the right to claim refund by the Appellant M/s.CPCL is completely lost.
Appeal dismissed.
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2020 (11) TMI 351
Irregular availment of Cenvat credit - Ineligible inputs - It is the case of the department that the said inputs as claimed to have been received by the appellant assessee in their factory premises on the strength of invoices issued by M/s. Roshanlal Bhagirathmal are not the eligible inputs for the purpose of taking credit in terms of Cenvat Credit Rules, 2004 and Central Excise Rules, 2002, as the same were not purchased from the said dealer - CBIC vide Circular No. 1003/10/2015-CX dated 05.05.2015 - HELD THAT:- From the Circular, it is unambiguously clear that if the invoice issued by the manufacturer contains the details of the Appellant as consignee, they are entitled to Cenvat credit even if the buyer is unregistered.
The Tribunal in HYDRO ELECTRO MACHINERY VERSUS COMMISSIONER OF C. EX., MUMBAI-III [2017 (2) TMI 876 - CESTAT MUMBAI] where it was held that Even if the purchase of the inputs were made by the appellant from an agent of the second stage dealer but duty paying invoices is consigned to the appellant, credit is legally admissible to the appellant.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 350
Clandestine Removal - non-examination of correctness of opening balance and confirmed demand of ₹ 11,22,927/- - imposition of penalty - documents not verified - HELD THAT:- Learned Commissioner (Appeals) has recorded that the appellant has not disputed clandestine removal of the goods but their grievance is about confirmation of the Central Excise duty on the entry as “opening balance” of ₹ 96,77,194/- appearing in duty calculation worksheet. Since, the Commissioner (Appeals) has clearly held that the correctness of ₹ 11,22,927/- and verification of documents related them to be re-examined, therefore, stating that appellant has not disputed clandestine removal is clear contradictory.
The Learned Commissioner (Appeals)’s observation that appellant has not disputed the clandestine removal of goods, needs to be expunged and the remand made by the Commissioner (Appeals) has to be considered as open remand in respect of the total duty remand of ₹ 11,22,927/- - Appeal disposed off.
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2020 (11) TMI 349
CENVAT Credit - input service or not - Service Tax paid under the head ‘Business Auxiliary Service’ for sales commission paid to their commission agents - credit has been denied alleging that sales agents are directly concerned with sales rather than sales promotion - period September, 2008 to April, 2013 - HELD THAT:- The issue under dispute in this appeal was analysed in COMMISSIONER OF CENTRAL EXCISE, LUDHIANA VERSUS AMBIKA OVERSEAS [2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT], where it was held that learned counsel for the revenue was unable to justify that the claim of cenvat credit by the assessee was erroneous in any manner - Following the said final Order, we are of the considered opinion that the demand cannot sustain.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 283
Demand of central excise arrears - Purchase of property in a public auction - whether there was attachment of liabilities and the same was passed along with the property or not? - When the question of recovery comes, there shall be a liability to pay the sum?
HELD THAT:- The respondents 1 to 3 have not exercised the powers conferred under them and seized or attached the goods for which, they have granted exemption of duty. Once there is no charge over the plant or machinery, or other properties, the respondents 1 to 3 will fall under the unsecured creditors and they cannot prevail over the rights of the secured creditor - the transaction between the assesses or licensee and authorities is personal between them. It will not continue unless and otherwise there is a specific condition attached to the same. The auction purchasers cannot be held liable for the arrears incurred by the previous licensee or industry in facour of whom the tax benefits are granted.
In various judgements, the categorical declaration is that the auction purchaser is not liable to pay any arrears, or duty or statutory dues for the default of the previous establishment. The right of the auction purchaser is absolute and independent of all the liabilities of the erstwhile establishment or owner. That transaction is personal, right or interest in personam between those parties will not bind on the auction purchaser - Reliance can be placed in the case of SPECIAL OFFICER, COMMERCE, NORTH EASTERN ELECTRICITY COMPANY OF ORISSA (NESCO) & ANR. VERSUS M/S RAGHUNATH PAPER MILLS PRIVATE LIMITED & ANR. [2012 (11) TMI 406 - SUPREME COURT].
Thus, the notice issues by the respondents 1 to 3 demanding arrears of tax or duty, committed by the previous owner from the petitioner / auction purchaser is without jurisdiction. The auction purchaser need not file an appeal against the notice or demand or order passed by the respondents. Since the notice is without jurisdiction, the writ petition is maintainable without any exhaustion of alternative remedy. It is always open to the respondents 1 to 3 to claim or demand the arrears of duty from the licensee or the beneficiary of the license and not from the writ petitioner who is a third party to that license - demand notices set aside - appeal allowed.
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2020 (11) TMI 282
Reversal of CENVAT Credit - common input services used by the appellant for providing both taxable output services and exempted services - non-maintenance of separate records - telephone & mobile services - banking & financial services - C&F agent services - annual maintenance services - legal & professional services - manner of computation of proportionate reversal of credit determined under rule 6(3A) of the Rules - HELD THAT:- It would be clear from a conjoint reading of sub-rule 6(1), (2) and (3) of rule 6 that the total CENVAT credit for the purpose of formula under rule 6(3A) is only total CENVAT credit of common input service and cannot include CENVAT credit on input service exclusively used for the manufacture of dutiable goods - This position is also clear from the underlying object of the amendment made in rule 6(3A) of the Rules by Notification dated March 1, 2016, to consider only common input services and not total input service credit, for the purpose of computing the amount of reversal.
Such amendment was also clarified by the Tax Research Unit Circular dated February 29, 2016 to apply retrospectively in as much as the clarification clearly mentions that the provisions of rule 6 providing for reversal of credit in respect of input services used in exempted services, is being redrafted with the objective to simplify and rationalize the same without altering the established principles of reversal of such credit. It has been further clarified at paragraph (iv) of the Circular that the purpose of the rule is to deny credit of such part of the total credit taken, as is attributable to the exempted services and under no circumstances this part can be greater than the whole credit.
The confirmation of demand, therefore, cannot be sustained - Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 239
Clandestine Manufacture and removal - Pan Masala and scented zarda - Release of applicant on Bail - benefit of Section 436-A of Cr.P.C. - HELD THAT:- The applicant evaded the excise duty by procuring the raw material and also not accounting the clandestine and surreptitious production in the statutory books. The clandestinely manufactured goods were supplied in the market without cover of lawful documents.The applicant is the master mind and beneficiary of entire scheme of duty evasion . The applicant had knowingly and willingly made distance in order to create a veil and to escape legal liabilities cast upon him. According to section 9AA of Central Excise Act, every person who at the time, the offence was committed was in charge shall be severally and jointly liable for being prosecuted for the aforesaid offence. There is nothing in the Act that the prosecution depends upon the result of the adjudication. Two proceedings are quite independent . The finding in one is not conclusive in the other proceedings. Both can go on simultaneously and finding in the adjudication proceedings is not binding on the criminal proceedings.A prosecution can be launched even after the completion of adjudication. Since the offence under section 9 (1A) Excise Act is cognizable and nonbailable and is grievous in nature, hence this Court does not deem it congruous to interfere in such matters.
The bail application filed on behalf of the applicant stands rejected.
Whether the benefit of Section 436-A Cr.P.C. can be extended to the applicant to release him on bail merely because he has served half of the maximum sentence prescribed under sections 9, 9AA of the Central Excise Act, 1944? - HELD THAT:- The explanation to Section 436-A Cr.P.C. places a restriction that in case there is a delay in proceeding caused by the accused, the period of detention shall be excluded for granting bail - a person cannot claim as a matter of right to be released on bail merely because he was under detention for half of the maximum sentence prescribed, as when there is lapse on the part of the accused to delay the proceeding, such benefit will not be extended to him.
The applicant is not entitled to the benefit of Section 436-A Cr.P.C. His detention is justified for longer period than he has already undergone. The bail is granted to the applicant - bail rejected.
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2020 (11) TMI 238
CENVAT Credit - credit on FFC & MTOP - CBEC Instruction F.No. 06/03/2013/CX.1 dated 10.11.2014 - HELD THAT:- The Hon’ble High Court in M/S. INOX AIR PRODUCTS PVT. LTD. (PREVIOUSLY, M/S. INOX AIR PRODUCTS LTD.) VERSUS UNION OF INDIA, COMMISSIONER OF CENTRAL EXCISE, M/S. STEEL AUTHORITY OF INDIA LIMITED [2020 (8) TMI 225 - MADRAS HIGH COURT] has considered the disallowance of credit on MTOP & FFC charges and held that the appellant herein has to be allowed to avail the Cenvat credit of MTOP & FFC charges.
Further, it has to be noted that the appellant has paid Central Excise duty on these charges and therefore, the department cannot deny the credit availed after collecting the excise duty - demand do not sustain - appeal allowed - decided in favor of appellant.
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2020 (11) TMI 192
Interest on delayed refund claim - claim of interest rejected on the ground that in terms of Section 35FF of Central Excise Act, 1944, interest is only to be granted after expiry of three from the date of order of appellate authority - HELD THAT:- I am in agreement with the claim of the learned Counsel that the amount of ₹ 15 Lakh deposited was not under the provisions of Section 35F and therefore, the provisions of Section 35FF which reads as under, will not apply - It is clear that Section 35FF is only for recoveries made under Section 35F. In these circumstances, I have no doubt in holding that order of Commissioner (Appeals) is incorrect and based on wrong premise.
Learned Authorised Representative argued that no application for refund of interest is made under Section 11B on 24.12.2007 - the appreciation of learned Authorised Representative regarding Section 11B is improper and incorrect.
The reference to refund of interest in Section 11B, is to the interest, if any, paid by the assessee along with duty. Section 11B does not apply to the claim of interest on the refund of duty to the appellant. In respect of claim of interest of duty to the appellant, Section 11BB applies - there are no merits in the argument of the learned Authorised Representative that the appellants were required to claim interest along with refund of duty. Section 11BB prescribes that interest is to be granted suo-moto along with refund.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 156
Amount of tax dues - Substitution of estimated amount payable as mentioned in forms SVLDRS-2 and SVLDRS-3 with the tax dues less tax relief amounts - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - whether the petitioners could be prejudiced or put in a worse off condition firstly by filing appeal before the CESTAT and secondly by filing declarations under the scheme?
HELD THAT:- We may refer to the maxim reformatio in peius. It is a latin phrase meaning a change towards the worse i.e., a change for the worse. As a legal expression it means that a lower court judgment is amended by a higher court into a worse one for those appealing it. In many jurisdictions, this practice is forbidden ensuring that an appellant cannot be placed in a worse position as a result of filing an appeal. When the above phrase is prefixed by the words ‘no’ or ‘prohibition’, which would render the maxim as no reformatio in peius or prohibition of reformatio in peius, it would denote a principle of procedure as per which using a remedy available in law should not aggravate the situation of the person who avails the remedy. In other words, a person should not be placed in a worse position as a result of filing an appeal. No reformatio in peius or prohibition of reformatio in peius is a part of fair procedure and thus by extension can also be construed as part of natural justice. It is not only a procedural guarantee but is also a principle of equity.
The initial show cause-cum-demand notice dated 17.01.1992 cannot be said to be in existence after the order in original was passed on 29.03.2006 which order has been accepted by the department. Quantification of dues had been done which was accepted by the department - Since the figures i.e., demand amounts in the order in original dated 29.03.2006 have been accepted by the respondents, it is those figures which would be material and not the figures mentioned in the show cause-cum-demand notice. Petitioners cannot be put in a worse off condition or the situation faced by them cannot be aggravated because they had availed the remedy of appeal or had sought relief under the scheme which is a beneficial one.
Having regard to the objective of the scheme, in a case of this nature, a reasonable and pragmatic approach has to be adopted so that a declarant can avail the benefits of the scheme; a declarant who seeks benefit under the scheme cannot be put in a worse off condition than he was before making declaration under the scheme. That would defeat the very purpose of the scheme.
This Court had already clarified that payments made by the petitioners following issuance of forms SVLDRS-2 and SVLDRS-3 would be subject to outcome of the writ petitions and if the petitioners succeed, they would be entitled to the refund of excess payment made without having to institute separate proceedings - the tax dues in respect of each of the three petitioners shall be treated as ₹ 6,15,017.00, ₹ 10,12,375.00 and ₹ 2,66,193.00 respectively, ₹ 18,93,585.00 collectively, and payments made by the petitioners in excess shall be refunded to them within a period of eight weeks from the date of receipt of a copy of this judgment.
Petition allowed.
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2020 (11) TMI 22
Restoration/return of the Bank Guarantee - HELD THAT:- The applicant had submitted a bank guarantee of State Bank of India bearing No.0999514BG0001982 dated 3/12/2014 which was subsequently amended on 5/10/2017 extending validity period upto 30/11/2022 - In the meanwhile, Central Government introduced the Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019. In order to avail the benefits under the aforesaid scheme, petitioner sought leave of the Court to withdraw the writ petition. By order dated 12/12/2019, this Court disposed of Writ Petition No. 8922 of 2014 as withdrawn.
Writ Petition No. 8922 of 2014 be restored for the limited purpose of passing an order directing the Registry of this Hon’ble Court to return the Bank Guarantee No. 0999514BG0001982 dated 03.12.2014 (as amended by amendment dated 05.10.2017).
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2020 (11) TMI 11
Reversal of Cenvat Credit - Exemption under the under SFIS Scheme - appellant has cleared DG sets without payment of excise duty under the Status Holder Incentive Scheme by availing the benefit of Notification No. 33/2012-CE dated 09.07.2012 and under SFIS by availing the benefit of Notification dated 14.06.2006 - Whether the goods cleared under Notification No. 34/2006-CE dated 14.06.2006 under SFIS Scheme are exempted or not? - HELD THAT:- It is a fact on record that the appellant is manufacturing DG sets and enclosures which are dutiable under Chapter 85 of CETA 1985. The appellant is also clearing goods to the buyers under SFIS Scheme duty free in terms of the Notification No. 34/2006-CE dated 14.06.2006 - It is an admitted position by both sides that the goods in question manufactured by the appellant are dutiable under Chapter 85 of the CETA, 1985.
The similar issue came up before this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS KIRLOSKAR CHILLERS PVT. LTD. [2017 (9) TMI 694 - CESTAT MUMBAI], this Tribunal has following the decision in the case of M/S VOLTAMP TRANSFORMERS LTD. VERSUS CCE VADODARA [2011 (9) TMI 648 - CESTAT, AHMEDABAD] hold that the goods supplied under Notification No. 34/2006-CE dated 14.06.2006 is not exempted, therefore, the provisions of Rule 6 (3) (b) of CCR, 2004 are not applicable.
These facts are found support from the decision relied upon by the Ld. AR as in the case of UOI AND ORS. VERSUS IND-SWIFT LABORATORIES LTD. [2011 (2) TMI 6 - SUPREME COURT] wherein the Hon’ble Apex Court is clarities that ‘the taxing statute must be interpreted in the light of what is clearly expressed. It is not permissible to import provisions in taxing statute so as to supply any assumed deficiency’. It means that the dutiable goods cannot become exempted goods as per the convenience of the revenue - Moreover, the circular which has been relied by the revenue have no mention of notification in question and the Revenue has presumed that if the notification in question is not part of the Circular No. 973/07/2013-CX dated 04.09.2013 then the provisions of Rule 6 (3) is applicable. The said understanding of the revenue is against the mandate of law as it is based of assumption & presumption. Therefore, it is a clear mis-interpretation of the Revenue by interpreting the CBEC Circular dated 04.09.2013
The goods supplied under Notification No. 34/2006-CE dated 14.06.2006 under SFIS Scheme are dutiable and not exempted goods, therefore, the provisions of Rule 6 (3) of the CCR, 2004 are not applicable to the facts of this case - as provision of Rule 6 (3) of CCR, 2004 are not applicable to the facts of this case, therefore, the demand is not sustainable.
Appeal allowed - decided in favor of appellant.
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