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Central Excise - Case Laws
Showing 41 to 60 of 108 Records
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2020 (3) TMI 829 - CESTAT CHANDIGARH
SSI Exemption - clubbing of clearances - the allegation in the case is that unit Nos. II and III were not having manufacturing facility to manufacture the goods in question and the same have been manufactured by unit No. I which has been cleared on the invoices issued by units Nos. II and III, therefore the duty is required to be paid by the unit No. I for clearance of the said machines.
HELD THAT:- The reports relied upon by the Revenue is without visiting and examining the machinery installed at unit No. II and unit No. III whereas the report produced by the appellants is based on physical verification of the machinery installed by the Chartered Engineer at unit No. II and unit No. III. As Shri N.K. Arora has given report after visiting the unit and have stated that Unit No. II and III are having manufacturing facility to manufacture the goods in question, therefore, the allegation made by the Revenue that unit Nos. II and III are not having manufacturing facility is not sustainable. Therefore, it is held that the unit Nos. II and III are having the facility to manufacture the goods in question, therefore, the allegation against unit No. I is not sustainable.
The allegation is that all the units are family concern, therefore, the clearance of made by all the units are to be clubbed with the clearances of unit No. I - unit No. I is private limited company and unit No. II and III are partnership concern, therefore, it cannot be said that all the units are family concerns as the director and the company are two separate entities.
The allegation of the Revenue that unit Nos. II and III are not having manufacturing facility and the same cleared clandestinely by unit No. I are based on assumptions and presumptions. Therefore, the demands against the appellant are set aside and no penalty is imposable on all the appellants.
Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 741 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
Rebate of Central Excise duty - rejection of rebate claims on the premise that the applicant is not a merchant exporter but he is a principal manufacturer as the ownership of the goods remained with them during the manufacturing process - HELD THAT:- The Government holds that rejection of rebate claims on account of filing before the wrong forum is not justified in the present case. It is further held that the central excise authorities (erstwhile) having jurisdiction over the manufacturer’s unit will be the appropriate authority to consider these rebate claims since the goods for purpose of export have been removed from the manufacturer’s premises on ARE-Is after payment of central excise duty. Verification of duty paid character and identity of the export goods can be established at their end.
The Government allows the applicant to file the rebate claims with the erstwhile central excise authorities having jurisdiction over M/s. Saraswati Agro Chemicals (India) Pvt. Ltd., Dera Bassi, District Mohali, Punjab - revision application allowed.
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2020 (3) TMI 740 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
Rebate of Central Excise duty - Non-payment of duty due to restriction in utilization of credit under Rule 8(3A) of Central Excise Rules, 2002 - HELD THAT:- Since payment in respect of export goods was required to be made in terms of Rule 8(1) of Central Excise Rules, 2002, the exporters had no choice but to comply with the same which they have done in the instant case. Therefore the rebate claims cannot be denied on the ground that the export goods have been cleared without payment of duty from the manufacturer’s premises on the date of removal.
The Government does not find any deficiency in the Commissioner (Appeals)’s order - revision dismissed.
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2020 (3) TMI 739 - CESTAT NEW DELHI
Clandestine removal - Miss-Rolls - demand based on third party record - corroborative evidences or not - impugned order based on presumption and surmises - HELD THAT:- The whole of the case is based upon third party record. There is no corroborative evidence supporting the allegations of the department. The director of appellant No. 1- Sh. Ajay Kumar Malhotra specifically denied any clandestine clearance of Miss-Roll to BRMPL. The department neither made investigation from the transporter or the truck drivers who transported the goods from the factory of the appellant No. 1 - There is no corroborative evidence that SRSDL received raw material, manufactured and cleared the goods clandestinely. Hence allegations made against SRSDL and Sh. Ajay Kumar Malhotra, appellant NO. 1 & 2 are not sustainable and their appeals are to be allowed.
Penalty - HELD THAT:- The penalty u/r 26 cannot be imposed upon a corporate body. The appellant is a private limited company hence penalty imposed is not sustainable - the penalty imposed is not sustainable.
Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 738 - CESTAT CHANDIGARH
Maintainability of appeal - time limitation - exclusion of the time consumed by the appellant for pursuing the remedy before the adjudicating authority is required to be reduced in terms of Section 14 of Limitation Act, 1963 - whether the appeal filed by the appellant before him on 11.01.2018 is barred by limitation or not, in which the appellant has challenged the order dt. 17.01.2017? - HELD THAT:- Admittedly, the time consumed by the appellant till 22.06.2017 is required to be excluded in terms of Section 14 of Limitation Act, 1963, but thereafter the appellant did not file the appeal before the learned Commissioner (Appeals) within time and the learned Commissioner (Appeals) has no power to extend the period of limitation in terms of Section 35A of the Central Excise Act, 1944 - Admittedly, the appellant did not follow the advice given by the adjudicating authority vide letter dt. 22.06.2017.
The appeal filed by the appellant before the learned Commissioner (Appeals) is barred by limitation - Appeal dismissed.
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2020 (3) TMI 737 - CESTAT HYDERABAD
Refund claim - HSD was supplied to M/s TIL - rejection on the ground that the documents which were supplied along with the refund application did not substantiate the claim of the appellant that they duty of refund sought had been paid - N/N. 108/1995 - HELD THAT:- The claim of refund in the application was not of duty paid by M/s RPL. Further, a plain reading of the exemption notification shows that the goods which are supplied to the specified agencies are exempted from the payment of basic excise duty subject to some conditions mentioned in the exemption notification. There is nothing in the notification to say that a trader who bought goods on payment of duty from another manufacturer and in turn supplies to one of the eligible parties will also be eligible for refund under the exemption notification.
There is no explicit exemption to the goods which have been bought by the appellant and in turn supplied to an eligible party. The case laws relied upon by the appellant pertain to the cases where the eligible recipient of the goods had claimed refund of the duty paid. There cannot be a dispute in such cases because the beneficiary who should not have paid the duty is eligible for refund if he had actually paid it. At any rate, the application was not seeking refund of duty paid by M/s RPL but of duty paid by their refinery. Such HSD having not been supplied to M/s TIL, the question of refund does not arise.
Appeal dismissed.
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2020 (3) TMI 736 - CESTAT NEW DELHI
Rectification of Mistake - Section 35C of the Central Excise Act, 1944 - SSI Exemption - Clandestine removal - HELD THAT:- A bare perusal of the aforesaid sub-section (2) of Section 35C of the Act indicates that the Appellate Tribunal may, with a view to rectify any mistake apparent from the record, amend any order passed by it under sub-section (1). Sub-section (1) provides that the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision for a fresh adjudication. What is, therefore, necessary for a mistake to be rectified is that it must be apparent from the record.
It, therefore, follows that what cannot be corrected by way of rectifications is a decision on a debatable point of law or fact or failure to apply the law to a set of facts which still to be investigated. But if the mistake otherwise is such an inaccuracy which is so obviously apparent, the same can be rectified by any of the nodes as mentioned in the Section 35C of CESTAT Rules.
The findings of the impugned order are based on wrong observations and wrong application which definitely amounts to be an error apparent on record - the impugned final order is recalled - application allowed.
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2020 (3) TMI 735 - CESTAT NEW DELHI
Recovery of Rebate claim after two years from sanction of refund - export of goods outside India - payment of duty on exempted goods - Rule 19 of Central Excise Rules, 2002 - extended period of limitation - HELD THAT:- The refund claims of the assessee/respondent had already undergone sufficient scrutiny at pre-audit as well as post audit stage of refund, before those were actually sanctioned by the Adjudicating Authority. Raising an audit objection after two years of such sanction and even disbursement, is beyond the legislative intent. Issuing of show cause notice in March, 2015 proposing the recovery of claims sanctioned and disposed way back in 2011-12 is, therefore, not sustainable. The show cause notice is rather beyond the period of limitation.
There is no iota of even whisper that the assessee had any intention to evade the duty. The admitted fact remains that the respondent/assessee has exported the goods on payment of duty under claim of rebate. Admittedly goods have been exported out of India and proof of export has been duly submitted. Respondent admittedly has been regularly filing the ER-Returns which were never objected by the Range Officer at the appropriate time - Commissioner (Appeals) has committed no error while holding the show cause notice as being barred by time and holding the assessee otherwise entitled to the claim for getting the refund of duty as was paid by them on finished goods exported out of India.
Appeal dismissed - decided against Revenue.
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2020 (3) TMI 702 - CESTAT MUMBAI
Cash refund of unutilized CENVAT Credit - closure of factory - period April 2011 to October, 2011 - main argument of the appellant is that during the period April, 2011 to October, 2011, since they defaulted in making monthly payment of duty, consequently, Range Superintendent directed them to discharge duty through PLA without utilization of CENVAT Credit. Hence, the entire duty amount was later paid through cash in compliance with the Rule 8(3A) of the Central Excise Rules, 2002.
HELD THAT:- There are no merit in the contention of the appellant inasmuch as the present refund claim arose four years after the compliance of the Rule 8(3A) of the Central Excise Rules, 2002 by discharging the duty in cash for which a separate proceeding has been initiated by claiming refund in cash before the adjudicating authority, which on rejection, appeal is pending before the learned Commissioner (Appeals) as claimed by the appellant. The present refund claim in cash arose as the CENVAT Credit amount was lying in balance as on date of closure of the factory.
Appeal dismissed.
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2020 (3) TMI 701 - CESTAT HYDERABAD
Refund of Excise Duty - differential freight charges collected from buyers during the period 01.04.2008 to 18.12.2008 - HELD THAT:- The place of removal is the factory gate and any profit earned by the appellant on account of transportation charges cannot form part of assessable value, therefore whatever excise duty paid by the appellant on account of profit earned is not duty and the same is to be refunded to the appellant.
Similar view taken in the case of COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, TIRUPATI VERSUS MANCHUKONDA PRAKASHAM & CO. (NOW M/S. MANCHUKONDA PRAKASHAM INDUSTRIES INDIA PVT. LTD.) [2015 (5) TMI 1002 - CESTAT BANGALORE] where it was held that There is plethora of decisions of the Tribunal holding that such excess collection on account of freight cannot form part of the assessable value of the goods unless the Revenue produces evidence to show that value of the goods was collected in the garb of the freight charges. There is no such evidence available much less any allegation in the present appeal.
Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 700 - CESTAT HYDERABAD
Refund of excise duty - duty paid at enhanced rates as per Notification No. 24/2014 dt.02.12.2014 - subsequent amendment in the notification - HELD THAT:- Both the conditions mentioned in section 5A(5) have to be fulfilled for any notification to come into force. In this case, the second condition was not fulfilled during the relevant period and therefore, the exemption notifications had not come into force. Consequently, the appellants were not required to pay duty at the enhanced rate during the relevant periods and therefore, any excess duty which they paid was refundable.
The order of the lower authority sanctioning the refunds was correct and it was incorrectly set aside by the first appellate authority - Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 659 - DELHI HIGH COURT
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - rejection on the ground that “the concerned investigative authority has submitted that the amount has neither been quantified nor communicated to the assessee” - Circular No.1071/4/2019-CX.8 dated 27th August, 2019 - HELD THAT:- Since in the present case, the petitioner has raised a plea that it was eligible to file an application despite the amount having been neither quantified nor communicated to the assessee by the Department till 30th June, 2019, this Court is of the view that an opportunity of hearing should have been given to the petitioner before passing any adverse order.
The impugned communications dated 26th November, 2019 and 19th December, 2019 are set aside and the respondent no.1 is directed to decide the petitioner’s application after giving an opportunity of hearing to the petitioner.
List the matter before respondent no.1 on 16th March, 2020 at 11.30 P.M. A reasoned order, after giving an opportunity of hearing, shall be passed by respondent no.1 on or before 25th March, 2020 - application disposed off.
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2020 (3) TMI 658 - DELHI HIGH COURT
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - rejection on the ground that “the concerned investigative authority has submitted that the amount has neither been quantified nor communicated to the assessee” - Circular No.1071/4/2019-CX.8 dated 27th August, 2019 - HELD THAT:- Since in the present case, the petitioner has raised a plea that it was eligible to file an application despite the amount having been neither quantified nor communicated to the assessee by the Department till 30th June, 2019, this Court is of the view that an opportunity of hearing should have been given to the petitioner before passing any adverse order.
The impugned communications dated 26th November, 2019 and 19th December, 2019 are set aside and the respondent no.1 is directed to decide the petitioner’s application after giving an opportunity of hearing to the petitioner.
List the matter before respondent no.1 on 16th March, 2020 at 11.30 P.M. A reasoned order, after giving an opportunity of hearing, shall be passed by respondent no.1 on or before 25th March, 2020 - application disposed off.
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2020 (3) TMI 657 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
Rebate claim - export of goods - trading activity - rejection on the ground that there was no manufacturing activity undertaken and therefore no duty was leviable on it - HELD THAT:- A JCB machine (model no. JCB 4DX, colour- yellow having engine model no. JCB 444 of capacity 68.6 kw, 92 HP) has been supplied as per the export order by the applicant under the brand name of JCB. The claim of the applicant that he has fitted the cold start kit in the engine is incorrect since the export order mentions the engine and cold start kit separately and the packing list also mentions them separately - It is further observed that JCB machine has been supplied with standard accessories which are in the nature of bought out items. Since these were duty paid, the applicant has availed Cenvat credit of the same and exported them together as a single item.
Since the activity undertaken is in the nature of trading activity, no rebate is admissible in respect of the impugned goods. The claim of the applicant for allowing Cenvat credit debited at the time of export merits no consideration.
The Government does not find any deficiency in the Commissioner (Appeals)’s order - Revision rejected.
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2020 (3) TMI 656 - CESTAT HYDERABAD
CENVAT Credit - exempt goods - IOPAMIDOL - Allegation on the ground that it did not pay the amount equal to 10% of the sale price of exempted goods - period September 2006 to December 2008 - HELD THAT:- The department has invoked the provisions of Rule 6(3) to hold that the appellant has not maintained the prescribed records and thus, is liable to pay 10% of the amount of sale price of the exempted goods. Since there are contradictions in the stand of the Revenue as well as the appellant regarding maintenance of adequate records, we are of the view that this particular aspect has to be re-examined at the original level for proper appreciation, as to whether, the requirement of erstwhile Rule 6(2) (effective upto February 2008) and the amended provisions incorporated thereafter under the CENVAT statute would be applicable and whether the subsequent amendment took place in the CENVAT statute consequent to the introduction of the Finance Act, 2010 would have any application for deciding the issue.
Appeal allowed by way of remand.
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2020 (3) TMI 655 - CESTAT CHANDIGARH
Valuation and Refund - insecticides/pesticides - Revenue is of the view that the appellants are manufacturing insecticides/pesticides and packing them in the pouch of 10gms or less than 10gms, therefore, they are not required to pay duty - Section 4(A) of the Central Excise Act, 1944 - HELD THAT:- It is a fact on record that the appellants are packing the pouches of pesticides/insecticides of less than 10gms and the same were packed into a bigger box and affixing MRP thereon. Therefore, in terms of the provisions Section 2(p) of the Standards of Weights & Measures Act, 1976, the appellants are required to affix MRP thereon wherein it has been specified that the multiple pieces are packed in a bigger box, the manufacturer is required to affix MRP.
The appellants have rightly paid duty under Section 4(A) of the Central Excise Act, 1944. Consequently, the appellants have correctly taken the refunds under Notification No. 56/2002-CE dated 14.11.2002 on duty paid in cash. In these circumstances, the proceedings against the appellants are not sustainable.
Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 654 - CESTAT MUMBAI
Refund claim - time limitation provided under Section 11B of the Central Excise Act, 1944 - HELD THAT:- The issue arising out of the present dispute is no more res integra in view of M/S TECHNOCRAFT INDUSTRIES (I) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE-I [2019 (4) TMI 1076 - CESTAT MUMBAI] - The Tribunal has held that the limitation period provided under Section 11B ibid is applicable for refund claim of accumulated Cenvat credit in terms of Rule 5 ibid.
There are no infirmity in the impugned order passed by the learned Commissioner (Appeals) in denying the refund benefit to the appellant on the ground of limitation - appeal dismissed.
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2020 (3) TMI 653 - CESTAT AHMEDABAD
Interest on delayed refund - relevant time for claiming refund - proviso as introduced under Section 11BB of Central Excise Act, 1944 - HELD THAT:- The issue has been clarified by Hon’ble Apex Court in the case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [2011 (10) TMI 16 - SUPREME COURT]. In the said case, Hon’ble Apex Court has examined the issue in detail and also examined the C.B.E. & C. Circular dated 1-10-2002 and held that the liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made.
In the present case, the refund claims were filed during the period 7-3-1993 to 28-4-1994. Section 11BB was introduced with effect from 26-8-1995. It is apparent that 3 months have passed from the date of filing refund claim and introduction of Section 11BB - there is a merit in the claim of the appellant that they are entitled for interest with effect from 26-8-1995 onwards till sanction of refund - appeal allowed.
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2020 (3) TMI 641 - BOMBAY HIGH COURT
Imposition of penalty u/r 15(2) of CENVAT Credit Rules, 2004 read with Section 11 AC of the Central Excise Act, 1944 - issue was not free from doubts, when the assessee vide their letter dated 8.7.2005 claimed to have stopped availing Cenvat Credit after insertion of Explanation III in sub-rule6(3) of CENVAT Credit Rules, 2004 w.e.f. 16.5.2005 - HELD THAT:- The questions proposed do not arise for consideration.
Appeal disposed off.
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2020 (3) TMI 640 - CESTAT NEW DELHI
Rectification of mistake - error apparent on the face of record - ascertainment of quantum of reversible cenvat credit - HELD THAT:- The issue adjudicated by the impugned appeal was the appellant, who was involved not only in the manufacture of the aerated water but also in trading thereof, whether was entitled to avail the Cenvat credit as far as the element of trading was concerned. From paras 9 and 10 thereof, it is observed that the findings in the order are in favour of the assessee/present applicant holding him to be entitled to avail the Cenvat credit - the allegation of Department, in fact, becomes redundant as far as the order of reversal of the said Cenvat credit is concerned. In view of these observations the remanding of the matter for ascertaining the quantum of reversible Cenvat credit is definitely an inadvertent error, which is apparent on the face of record of this order.
No question of the ground taken in the application to be a debatable issue or present case to be a case amounting to the review of the impugned final order at all arises - Application allowed.
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