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Central Excise - Case Laws
Showing 1 to 20 of 108 Records
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2020 (3) TMI 1430
Valuation - inclusion in the assessable value, the cost of transportation from the sellers premises to the buyers premises in the assessable value of the goods, where the goods are sold on FOR destination basis - Place of removal - Section 4 of the Central Excise Act, 1944 - HELD THAT:- After examining several previous judgments, the Hon’ble Apex Court has in the case of COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR VERSUS M/S ISPAT INDUSTRIES LTD. [2015 (10) TMI 613 - SUPREME COURT] held very categorically that the place of removal has to be related to the seller of the goods such as factory or any other place or premises of production or warehouse or a place of consignment agent which is relatable to the seller and it cannot be the buyer’s premises. Once the goods reach the buyer’s premises, there is nothing to be removed or sold and the sale is already complete. Therefore place of removal has to be seller’s premises. For the purpose of valuation under Section 4, the value has to be the transaction value at which the goods are sold by the assessee for delivery at the time and place of removal. Therefore, there is no scope for charging excise duty on the cost of transportation from the seller’s premises to the buyers premises.
The demands are not sustainable and impugned orders need to be set aside - Appeal allowed.
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2020 (3) TMI 1416
CENVAT Credit - inputs - according to the revenue, the final product was not manufactured - according to the assessee, the process resulted in a manufacture - HELD THAT:- There are no reason to entertain this appeal as no case of perversity is made out.
Appeal dismissed.
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2020 (3) TMI 1413
Validity of circular No.1027/15/2016-CX : MANU/EXCR/0016/2016 - reversal of CENVAT Credit - Bagasse - non excisable good or not - HELD THAT:- The petitioner states that this very circular was challenged in the Allahabad High Court and by the judgment M/S BALRAMPUR CHINI MILLS LTD. THROUGH ITS GENERAL MANAGER VERSUS UNION OF INDIA, MINISTRY OF FINANCE DEPARTMENT OF REVENUE [2019 (5) TMI 972 - ALLAHABAD HIGH COURT] Allahabad High Court set aside this circular and this judgment has been permitted to become final.
In this view of the matter and in view of the categoric statement made by the learned counsel for the petitioner, we allow this writ petition in the same terms as the above judgment with liberty to the Revenue to file an application for review in case the assertion regarding the judgment having been permitted to become final is not correct. However, it is clarified that once the circular has been set aside the show cause notice based on the impugned circular is also automatically set aside.
Petition stands allowed.
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2020 (3) TMI 1383
CENVAT Credit - requirement to pay 5%/6%/7% of the value of exempted services - rule 6 of Cenvat Credit Rules, 2004 - HELD THAT:- Demand was raised under Rule 6(3A) i.e. 5%/6%/7% of the value of exempted services. It is the submission of learned Chartered Accountant that during the period involved in all the three cases, no Cenvat credit of common input services was availed. If this is correct, then the question of raising any demand under Rule 6(3A) will not arise. However, the fact whether during the period 2013-14 to 2015-16 appellant has not availed Cenvat credit or otherwise, has neither been properly submitted by the appellant nor the Adjudicating Authority or Commissioner (Appeals) has verified.
The matter should go back to the Adjudicating Authority to verify whether the appellant has availed Cenvat credit on common input service during the relevant period - Appeal allowed by way of remand.
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2020 (3) TMI 1376
CENVAT Credit - input services - outdoor catering services - period pertains to 2009 to March, 2011 - non-production of records - appellant is an appeal against the impugned orders only on the ground that as the period pertains to 2009 to March, 2011 and now it is not possible for the appellant to produce those records as those records are not available with the appellant - HELD THAT:- Reliance is placed by the ld. Counsel in the decision of RELIANCE INDUSTRIES LTD. VERSUS UNION OF INDIA [2020 (1) TMI 283 - BOMBAY HIGH COURT] is not applicable to the facts of this case as in the said case the decision is with regard to adjudication to be done within one year from the amendment in Section 28 of the Customs Act, 1962 w.e.f. 29.03.2018. There is no such amendment in the Central Excise Act. Therefore, the said reliance is not applicable to the facts of the case.
Further, in normal course of business, an assessee is required to maintain their record for five years normally, but in case litigation is going on, the litigants are required to keep the records of the said period till litigation ends. In that circumstances, the plea taken by the appellant that the records pertains to more than five years, therefore, they are not able to produce the record. The said contention of the Ld. Counsel is not acceptable.
Appeal dismissed - decided against appellant.
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2020 (3) TMI 1339
Enhancement of penalty - fraudulent availment of CENVAT Credit - premises taken on lease, genuine or not - also, the address declared in the registration certificate was not genuine - HELD THAT:- The respondent had obtained the dealer registration from the Department. After necessary investigation by the Department, it was noticed that the address declared in the registration certificate was not genuine. Accordingly, the invoices issued by the respondent dealer were held to be invalid. Consequently, on adjudication, penalty was imposed on the dealers-respondent and also imposed on the second stage dealers, who had purchased the goods from the Respondent and issued invoices to the manufacturers.
The respondents are first stage dealers and it is the only evidence against the respondent that the premises declared by them being taken on lease, found to be not genuine when contradictions were noticed relating to the Rent Agreement. Accordingly, it is presumed that the goods in question purchased by them and CENVAT Credit ultimately passed on to the second stage dealer/manufacturer could not also be genuine. There is no conspiracy theory established by the Revenue involving the manufacturer of inputs, and first stage dealer/ second stage dealer and the end user manufacturer of the inputs involving the respondent.
The Commissioner imposed penalty when contradictions were noticed in the declaration filed for obtaining Dealer’s Registration and also the quantum of penalty accordingly determined. Since no other evidence has been brought on record by the Revenue to establish any complicity on the part of the respondent, the impugned order does not warrant any interference - Appeal dismissed - decided against Revenue.
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2020 (3) TMI 1338
Classification of goods - Jarda Scented Tobacco or not - whether it is Chewing Tobacco without lime tube falling under CSH 2403 99 10 or Jarada scented Tobacco under CSH 2403 99 30 of CETA, 1985 so as to apply the appropriate duty under the relevant notification notified under Sec. 3A of Central Excise Act, 1944? - HELD THAT:- There are no apparent error in the finding of the Learned Commissioner (Appeals). The proposed change of classification of the commodity elaborately analysed along with the test reports and other evidences in the show cause notice dated 1-7-2016. Since, the Respondent had not challenged the annual capacity of production determined by the Dy. Commissioner, but challenged only the classification of the commodity, thus , instead of deciding the classification of the commodity, Learned Commissioner (Appeals) left it open and disposed the appeals. Impliedly, since the classification issue was not determined by the Learned Commissioner (Appeals), the respondent also have not challenged the said order.
The Commissioner should proceed with the adjudication of show cause notice dated 1-7-2016 to which both sides have fairly agreed. The Respondent is at liberty to adduce evidences in support of their case before the adjudicating authority. The adjudication be completed at the earliest after affording reasonable opportunity the Respondent-assessee. The Respondent to co-operate and avoid seeking unwarranted adjournments.
Appeal disposed off.
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2020 (3) TMI 1207
Extended period of limitation - demand of Central Excise Duty including Cess and Secondary & Higher Education Cess and also imposing interest and penalty - HELD THAT:- This Court is of the view that since it has been clearly mentioned in para-12.2 of the circular dated 16.02.2018 issued by the Department of Revenue that the extended period would not be available to raise the demand, which has also been perused by this Court, this Court is of the opinion that the availability of alternative remedy may not debar the petitioner from approaching this Court - Accordingly, till the next returnable date the impugned order dated 26.03.2018 may not be given effect to.
List the matter after 3 (three) weeks.
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2020 (3) TMI 1206
CENVAT Credit - input services - outward transportation of goods (GTA Services) - place of removal - period from 2009-10 to 2013-14 - HELD THAT:- Tribunal relying upon the Board Circular No.1065/2018CX dated 8th June 2018 as well as the decision of the Supreme Court in the case of M/S ULTRA TECH CEMENT LTD. VERSUS CCE & ST, ROHTAK [2014 (10) TMI 679 - CESTAT NEW DELHI] and in the case of COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. [2015 (4) TMI 857 - SUPREME COURT], has held that the Appellants are eligible for the cenvat credit of service tax paid on outward freight.
No question of law much less of any substantial question of law arises out of the impugned order passed by the Tribunal - Appeal dismissed.
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2020 (3) TMI 1184
Valuation - 3MM Stranded Ply wire - related party transaction - applicability of Section 4 (1) (b) of CEA, 1944 - to be valued at 110% of the cost of production of such goods as per CAS-4 as envisaged in Rule 10 (a) read with Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 or not? - HELD THAT:- The authorities below have concluded that valuation under Section 4 (1) (b) has to be adopted and not the transaction value mainly on account of the fact that the six units are inter-connected undertakings. However, from the Order-in-Original or the impugned order there is no discussion how the buyers are related persons. As per Rule 10 (a) of the Valuation Rules only if the buyers and seller are related in the manner specified under the sub-clause (ii), (iii), (iv) of Clause-(b) of Sub-section (3) of Section 4 of the Central Excise Act, 1944, the valuation as alleged in the SCNs will come into application. In the present case, apart from the units being inter-connected undertakings there is nothing to show that the buyers and seller are related persons. There is no mutuality of interest or fund flow brought out by evidence on the part of the department.
Demand do not sustain - appeal allowed - decided in favor of appellant.
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2020 (3) TMI 1181
Imposition of penalty - irregularly availed CENVAT Credit - credit availed on the same invoice twice in the month of June 2014 - It is contended that, they had no intention to evade payment of Cenvat credit and they had already reversed the amounts on being pointed out by the department - HELD THAT:- There are no doubt that the appellant had wrongly availed Cenvat credit twice in the same invoice. It is not the case where one could have a doubt about the admissibility of such Cenvat credit. Evidently, nobody can legitimately claim Cenvat credit twice on one invoice. Similarly, with respect to the capital goods removed after use, they have reversed inadequate amount of Cenvat credit which remains undisputed.
The intention is self evident and the violation of Act and Rules are undisputed - Appeal dismissed - decided against appellant.
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2020 (3) TMI 1155
Maintainability of appeal - challenge on the ground that the question involved in the appeal had a direct bearing on the rate of duty and value of goods for the purposes of assessment - error apparent on the face of record or not - section 35G read with section 35L of the Central Excise Act, 1944 - HELD THAT:- In the present case, the applicant has invoked the review jurisdiction of this court on the ground that there is an error apparent on the face of the record. The Supreme Court in MEERA BHANJA VERSUS NIRMALA KUMARI CHOUDHURY [1994 (11) TMI 440 - SUPREME COURT] has held that an error apparent on the face of the record must be an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. It may be pertinent to note that the learned senior standing counsel has not pointed out any error apparent on the face of the record in the order dated 26.09.2019, the only ground which is urged in the memorandum of application is that the decision of the Supreme Court in COMMISSIONER OF CUSTOMS, BANGALORE-1 VERSUS M/S MOTOROLA INDIA LTD. [2019 (9) TMI 229 - SUPREME COURT] could not be shown to the court. Moreover, nothing has been pointed out as to how the order dated 26.09.2019 passed by this court is not in consonance with the above decision.
It is manifest that the matter would require a long-drawn process of reasoning on a point on which there may conceivable be two opinions. Under the circumstances, it cannot be said that the order dated 26.09.2019 suffers from any error apparent on the face of the record, warranting interference.
Application dismissed.
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2020 (3) TMI 1097
Maintainability of petition - non-compliance with the requirement of pre-deposit - Section 35F of the Central Excise Act, 1944 - HELD THAT:- Today, Mr. Jorgay Namka, learned counsel for the petitioner has submitted that the petitioner is not in a position to pay the requisite amount in terms of Section 35F of the Act - If that be the position, we have no alternative but to dismiss the IA.
Application dismissed.
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2020 (3) TMI 1096
Recovery of dues - sick company - Wrongful adjustment of sanctioned refund - demand of interest - relevant period starting from 19 March, 2017 (expiry of three months from the date of the order dated 20 December, 2016 passed by the Tribunal) till the date of payment of refund amount or not - HELD THAT:- It is not possible to accept this submission of the learned Authorized Representative of the Department. As noticed by the Commissioner (Appeals), the dues pertaining to the orders dated 18 October 2001 and 23 February 2001 confirming the demands, were not disclosed by the Department or the earlier management to the BIFR and the same were not considered in the scheme sanctioned by BIFR. The BIFR had also by order dated 22 May, 2002 protected the management from recovery of dues which were not disclosed by the old management or not provided for in the package approved by the BIFR.
It is not the case of the Department that the dues pertaining to the aforesaid two orders confirming the demands had been disclosed by the Department or the earlier management to the BIFR. The proceedings before the BIFR had not been assailed before any appellate forum.
Appeal dismissed.
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2020 (3) TMI 1053
CENVAT Credit - goods which were finally cleared were exempted - benefit of Rule 6(3) of the Cenvat Credit Rules - Whether the benefit of rule 6(3) of the Cenvat Credit Rules is available to the assessee, irrespective of his conduct and malafide intention to avail cenvat credit on the inputs used in manufacturing of exempted goods?
HELD THAT:- There is no dispute raised on the fact that till 20.8.2012, the nature of pipes manufactured was not determined as exempt because GMADA was not granted exemption certificate. The respondents were not maintaining separate books of account. The goods cleared were on payment/adjustment of duty under Rule 6(3) and also dutiable goods albeit in small ratio. The finding recorded by the Tribunal that dutiable goods were cleared on 5.11.2012 has not been challenged - The contentions raised by learned counsel for the appellant are not well founded. Rule 6(2) provides no minimum ratio for the manufacture of exempted and dutiable goods. It deals with manufacturing of exempted and duty chargeable goods and in case of non-maintaining of separate accounts, then Rule 6(3) comes into operation and as per first option the manufacturer is liable to pay 6% of the value of exempted goods.
The submission that from September to 4.11.2012, WCL was only manufacturing exempted goods is merely on presumptions and the argument falls flat in view of the finding recorded by the Tribunal that on 5.11.2012 the goods were cleared on payment of duty. Without there being any manufacturing of dutiable goods prior to 4.11.2012, the goods could not have been cleared on 5.11.2012 on payment of duty. More-so, when clearance and supply of dutiable goods is accepted and there is no denial to the fact that a purchase order existed for supply of dutiable goods, on mere assumptions the intention cannot be determined or it can be concluded that the conduct was fraudulent - The authorities have also not appreciated the difference in manufacture and clearance of goods.
It cannot be concluded that WCL till 04.11.2012 was indulging only in manufacture of exempted goods. No perversity has been pointed out in the order - Appeal dismissed - decided against appellant.
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2020 (3) TMI 1052
CENVAT Credit - duty paying invoices - rejection for the reason that invoices of input service bear handwritten serial number - HELD THAT:- In the appellant’s own earlier case a show cause notice F.no. V(CH.70) 3-31/DEM/10- 11 dated 30/05/2011 was issued on the same issue that whether the appellant is entitled for Cenvat Credit on the invoice issued by the service provider which bears handwritten serial number. That case was travelled up to this Tribunal in appeal no. E/11069/2015. This Tribunal in KRUPA TRADING COMPANY VERSUS C.C.E & S.T. -VALSAD [2020 (2) TMI 293 - CESTAT AHMEDABAD] decided the matter in appellant’s favour.
The reason for denial of the Cenvat Credit in the above decision of the Tribunal and in the present case is absolutely identical.
Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 1001
Extension of time for completion of arbitration proceedings and rendering of the arbitral award - Section 29A(4) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Issue notice.
Keeping in view the fact that much time and labour has already been invested in the proceedings, the time for completion of arbitration proceedings and rendering of award is extended till 30.09.2020 reckoned from 18.08.2019 - petition disposed off.
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2020 (3) TMI 1000
Service of order - principal argument of the learned counsel appearing for the appellant is that at no point of time, he received the Order-in-Original passed by the Deputy Commissioner - HELD THAT:- The Tribunal has held that it is fact on record that the adjudication order was sent to the appellant through registered post on 19.05.2015 and the same was delivered at the premises of the appellant on 25.05.2015. In that circumstance, the date of received of adjudication order is 25.05.2015. Admittedly, the appeal filed by the appellant is with a delay of almost 15 months therefore, the Ld. Commissioner (Appeals) has rightly dismissed the appeal as time-barred.
In view of the aforesaid findings of fact arrived at by the Tribunal, it is difficult for us to take the view that the questions as proposed are substantial questions of law falling for the consideration of this Court.
Appeal dismissed.
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2020 (3) TMI 999
Refund of Excise duty - principles of unjust enrichment - HELD THAT:- Mr. Walve and Mr. Ochani, appearing for the respondents, very fairly state on instructions of Mr. Bhanu Jain, Assistant Commissioner, Central GST and Central Excise, that the petitioner’s grievance in the present facts is justified. This as the impugned order is contrary to and in defiance of the orders of the Tribunal which have attained finality.
The impugned order dated 30th April, 2019 passed by the Assistant Commissioner of Central GST and Central Excise, is quashed and set aside.
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2020 (3) TMI 998
Interest on delayed refund - whether the appellant is entitled for interest on the delayed payment of refund either at the rate of 6% or at the rate of 12% of the amount of refund? - Section 11BB of CEA - HELD THAT:- Perusal of the section leaves no doubt that the assessee is entitled to interest if the payment had not been paid to him within 3 months of finalization of the claim at such rate as is prescribed under the law. The Section itself records that the interest be given at such rate, which should not be below 5%, nor should be exceeding the rate at 30% per annum - Similar is the intention of Legislature apparent from Section 35FF of Central Excise Act, 1944. Therefore, as per statute itself, the interest rate may vary within the range of rate at 5% to 30%. The notification as relied upon cannot supersede the statute.
Keeping in view that the order under challenge is silent about any reason for reducing the rate from 12% to 6% except relying upon the Notification No. 67/2003 it is held that the appellant is entitled for the interest at the rate of 12% - Appeal allowed - decided in favor of appellant.
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