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Central Excise - Case Laws
Showing 61 to 80 of 108 Records
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2020 (3) TMI 585 - GUJARAT HIGH COURT
Interest on refunds - Relevant date for Grant of interest - applicant seeks interest from the date the respective amounts were deposited with the respondents till the date of actual refund of the deposit - HELD THAT:- This court has held that since refund is not in the nature of duty under the Central Excise Act, the petitioner is not entitled to statutory interest under section 11BB of that Act. It has further been held that in the absence of any statutory provision entitling the petitioner to interest, a mandamus cannot be issued to the revenue to pay interest. It may be noted that while the petitioner in the relief paragraph has prayed for interest at the rate of 18% per annum, at the time of hearing of the petition, no submissions had been made in this regard. Nonetheless, since in the reliefs prayed for a prayer for grant of interest had been made, this court had considered the same and rightly or wrongly, for the reasons set out in the order as recorded hereinabove, declined to grant such relief.
Once the court has after duly recording reasons, turned down the prayer for grant of interest, even if the reasoning for declining such relief may be fallacious, the same would not fall within the scope of a review application.
It may be pertinent to note that in the present application, the petitioner has sought review of the judgement dated 16.6.2016 and grant of interest at the rate of 18% per annum or such other rate as the court may deem fit from the date the respective amounts were deposited with the respondents till the date of actual refund of the deposit. However, in the memorandum of petition of the captioned special civil application, the petitioner has prayed for interest at the rate of 18% per annum claimed vide application dated 21.7.2014. Thus, the refund application claimed in the application is not identical to the relief claimed in the petition.
At this stage of review, the court would be required to rehear the learned counsel for the respective parties on the question of interest, namely, the entitlement, quantum and the date from which such interest is required to be granted which would amount to giving a fresh opportunity to the petitioner to argue on a point which though, could have been argued, was not argued at the relevant time when the case was heard, which would be beyond the scope of a review petition. Therefore, even while accepting the submission of the learned counsel for the petitioner that the findings recorded by this court in paragraph 19 of the judgment are inconsistent with each other, it would not be possible for this court to grant the relief prayed for in the application as it would entail long drawn arguments on the question of entitlement, rate of interest as well as the point of time from which such interest should be granted which would be beyond the scope of a review application.
Application rejected.
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2020 (3) TMI 584 - CESTAT NEW DELHI
Clandestine Removal - Brass Ingots - considerable difference in the quantity of various excisable goods manufactured as shown under the heads of manufactured, cleared and under closing balance in the records maintained for central excise purpose viz-a-viz quantity shown in the balance sheet for the financial year 2008-2009 - HELD THAT:- Admittedly the entire case of the Revenue is based upon the mis-match of quantities as reflected in the excise records and the account records of the assessee. There is no evidence to show the receipt of the excess raw materials, manufacture of the excess final product and transportation of the same as also the identification of the customers.
Tribunal in the case of M/S. SAC POLYMERS VERSUS COMMISSIONER OF CENTRAL EXCISE CUSTOMS & CGST, NEW DELHI [2018 (7) TMI 523 - CESTAT NEW DELHI] have observed that charge of clandestine removal cannot be established merely on the ground of difference in the balance sheet and the statutory record unless the same is corroborated by any other evidence showing receipt of raw material, consumption of the same, production and removal of the final product.
It is well established that the onus to prove the charges of clandestine removal lies very heavily upon the Revenue and is required to be discharged with production of sufficient positive evidences. The same cannot be based upon assumptions and presumptions - Admittedly, in the present case, there is no evidence produced by the Revenue indicating the clandestine clearance of the goods except the difference in the figures. The same cannot be adopted as sufficient evidence for upholding the charge of clandestine removal.
Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 524 - CESTAT AHMEDABAD
Refund granted under N/N. 39/2001-CE dated 31.07.2001 - recovery of refund sought on the ground that the production of these products were not started on declared dated 14.01.2005 - also alleged in SCN that the plant and machinery certified by the committee does not include the plant & machineries subsequently installed and used for the manufacture of subject goods.
HELD THAT:- The Ld. Commissioner in the adjudication order regarding the factual aspect that whether the plant and machinery were installed as on 31.12.2005 only relied upon the Assistant Commissioner’s order in an identical case, however, he has not verified the facts on the basis of documents that whether the machineries were installed as on 31.12.2005. The finding of the Commissioner with reference to the Board Circular dated 10.07.2008 to the extent that even if the production is started after the date i.e. 14.01.2005, but if the Plant and Machinery were installed as on 31.12.2005, the benefit of the notification 39/2001-CE is prima facie available appears to be prima facie correct.
The learned adjudicating authority decided the entire matter relying on the Tribunal’s remand order dated 27.10.2015. The period of that case was different from the period of this case therefore facts of each case must be verified independently - The adjudicating authority has not verified the facts in the context of this case. The vital fact which needs to be verified is that whether the goods on which exemption was claimed were manufactured from the plant & machinery installed prior to the commencement of production thereof i.e. 14.01.2005 or they were installed after 14.01.2005.
The matter needs re-examination - appeal allowed by way of remand.
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2020 (3) TMI 523 - CESTAT CHENNAI
Interpretation of statute - Rule 6(3A)(c)(iii) of Cenvat Credit Rules, 2004 - whether in the formula prescribed under Rule 6(3A)(c)(iii) of Cenvat Credit Rules, 2004, the total Cenvat credit mentioned therein relates to only total common credit availed on inputs/input services or whether total Cenvat credit? - HELD THAT:- The said issue stands decided by the Tribunal in the case of CCE & ST, Rajkot Vs M/s. Reliance Industries Ltd., [2019 (3) TMI 784 - CESTAT AHMEDABAD] - It was held therein that total Cenvat credit for the purpose of formula under Rule 6(3A) is only total credit of common input services and will not include the Cenvat credit on inputs/input services exclusively used for the manufacture or procurement of goods.
The demand cannot sustain - Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 522 - CESTAT AHMEDABAD
Jurisdiction - proper authority to sign the application - verification of application - case of Revenue is that the application for condonation of delay has been signed by Commissioner, Central Goods and Services Tax, Bhavnagar, who was not authorized by the Committee of Commissioners that had originally authorized to file the appeal - HELD THAT:- The perusal of Rule 8 of the CESTAT (Procedure) Rules, shows that it clearly permits the appellant to verify the application. The Rule clearly permits appeal/application/cross-objection shall be signed and verified by the appellant/applicant/respondent of the Principal Officer duly authorised to sign Memorandum of Appeal/application/Cross-objection.
The appellant and respondent can verify the application. In the instant case, the ‘Commissioner’ is appellant and he has filed the appeal. Consequently, the words “duly authorized” appearing in Rule 8 do not refer to authorization under Section 35B(2) for the reason that there is no mention of the said Section in the said Rule. The authorization referred to in Rule 8 is a normal authorization done by appellant or respondent as the said Rule applies not only to Revenue also but to the assessees. Thus, the words “duly authorized” appearing in Rule 8 are not with reference to Section 35B(2).
In the instant case, the appeal was filed within time and there was only delay in rectification of defect pointed out by the Registry. Even otherwise, the primary objection of the Ld. Counsel for the respondent regarding the condonation of delay application being signed by an officer not authorized by Committee of Commissioners is misplaced as the requirement of filing of appeal under Section 35B is only for filing the appeals and not for other miscellaneous applications - Since there is no delay in filing the appeal, the applications for condonation of delay are dismissed as infructuous.
Appeals admitted.
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2020 (3) TMI 483 - CESTAT AHMEDABAD
CENVAT credit of CVD paid - excess payment of CVD - credit was availed in respect of CVD paid on imported raw-material namely copper Concentrates based on provisionally assessed bills of entry - SCN proposed to deny the cenvat on the ground that the credit on the bill of entry can be taken only if it is finally assessed and credit cannot be taken on provisionally assessed bill of entry - case of the department is that the correct value of the goods is the value which was finally assessed, therefore, the respondent were not entitle for the cenvat credit paid in excess on the basis of provisionally assessed bills of entry.
HELD THAT:- The provisional assessment is provided under a statute i.e. under Section 18 of the Customs Act, 1962, therefore, the duty paid on the provisional assessment of bills of entry is also with authority of law. Therefore, it cannot be said that the payment made under provisionally assessed bills of entry is a deposit and not a duty. The provisionally assessed bills of entry is also valid document for availing the cenvat credit, for the reason that under Rule 9 of Cenvat Credit Rules only bill of entry is prescribed on the basis of which the payment of customs duty was made, therefore, bill of entry whether it is provisional of finally assessed, the Cenvat Credit is admissible. There is no bar in the law to restrict the Cenvat Credit on the CVD paid on the basis of provisionally assessed bills of entry. Therefore, merely because the Cenvat Credit was taken on provisionally assessed bills of entry, there is no reason to deny the Cenvat Credit. It is a settled law that even if any duty or excess duty paid which is otherwise not payable, and the recipient and Cenvat Credit cannot be disputed.
It is settled in various decisions that even though certain amount of Excise duty/service tax not payable as per law but the manufacturer/service provider paid the duty /service tax, at the recipient and Cenvat Credit cannot be denied only on the ground that the same was not payable by the Manufacturer/Service provider - On the same analogy in the present case also even though as per the final assessment there was excess payment of CVD which was otherwise not payable, the Cenvat Credit on the said excess paid CVD cannot be denied.
Reliance can be placed in the case of COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD-III VERSUS NAHAR GRANITIES LTD.[2014 (5) TMI 57 - GUJARAT HIGH COURT].
The adjudicating authority has given proper reasoning and correctly interpreted the various provision of Customs Valuation, provisional assessment and Cenvat Credit Rules - there are no infirmity in the finding given by the adjudicating authority - appeal dismissed - decided against Revenue.
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2020 (3) TMI 456 - MADRAS HIGH COURT
Maintainability of appeal - appropriate forum - CENVAT credit - activity amounting to manufacture or not - activity of re-packing which is not packing in “unit containers” - activity of re-labeling with the name and without any hologram or marking while the re-labeling being done only for the logistics purpose by the assessee - treatment to the already marketable products by the assessee would amount to manufacture - filing of a Return under Rule 12 of Central Excise Rules, 2002 - disclosure of full details.
Whether the present appeals which raises a question of excisability itself or not, will be appealable before the Hon'ble Supreme Court or not?
HELD THAT:- The question whether the activity carried out by the Assessee amounts to "deemed manufacture" or not is the basic question involved in the present appeals. While the Tribunal decided in favour of Assessee that the activity amounts to 'manufacture', the Revenue seeks to raise a question and doubt it on that ground that the Assessee only carried out some kind of packing/ repacking or labelling of goods not amounting to the process of 'manufacture' - It is quite obvious that clause (iii) was inserted in the definition of "manufacture" in Section 2(f) of the Act by Finance Act, 2003 with effect from 01.03.2003 which clearly by a deeming fiction included in III Schedule the activities which only involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers etc. In view of such extended definition now incorporated in the Statute itself, we do not find any justification for the Revenue to raise a question on this as to whether the activity carried out by the Assessee will amount to manufacture or not.
Since the question of excisability under Central Excise Act and dutiability under the Customs Act are the basic questions at the root of the matter, before deciding the questions of rate of duty and valuation of goods, which as per expanded scope of 35L of the Act, should naturally now lie before the Hon'ble Supreme Court of India. Even before the said amendment in law took place, the Division Bench of Karnataka High Court in two decisions dealing with both the enactments viz., Excise Law and Customs Law made such observations and held that such appeals are maintainable before the Hon'ble Supreme Court of India - Reliance can be placed in the case of CCE., MANGALORE VERSUS MANGALORE REFINERIES & PETROCHEMICALS LTD. [2010 (9) TMI 756 - KARNATAKA HIGH COURT].
In view of the amendment in the provisions of Section 35 L(2) akin to Section 130 of the Customs Act, we are of the clear opinion that the issues raised in the present Appeals are governed by the domain jurisdiction of Hon'ble Supreme Court of India and the present Appeals filed by Revenue, cannot be maintained before this Court.
The appeals filed are therefore not maintainable and is dismissed.
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2020 (3) TMI 455 - DELHI HIGH COURT
Refund of Pre-deposit - release of Bank Guarantee furnished by the petitioner - Clandestine removal - Counsel for the petitioner states that consequent upon the above order, the petitioner made an application dated 18.02.2019 demanding the refund of the amount as also an application seeking release of the bank guarantee. It is pointed-out that inspite of the applications, till date no action has been taken by the respondent, either rejecting or allowing the applications.
HELD THAT:- ssue notice returnable 15.05.2020 - List before the Regular Bench on 15th May 2020.
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2020 (3) TMI 454 - CESTAT ALLAHABAD
CENVAT credit - fake invoices - credit denied on the ground that the appellant has received only cenvatable invoices and not the goods - HELD THAT:- Considering the fact that similar investigation has been conducted by the DGCEI against Shri Amit Gupta and show cause notices were issued to the recipients of goods against whom the invoices were issued by Shri Amit Gupta to various firms. One such firm M/s.Unnati Alloys Pvt. Ltd., Neither cross examination of Shri Amit Gupta nor Shri Amit Gupta was made party to the show cause notice which shows that the investigation conducted against the appellant is not proper. Moreover, the transporters were also not examined at all nor made party to the show cause notice. In that circumstance, the benefit of doubt goes in favour of the appellant that they have received the goods against cenvatable invoices issued by M/s Unnati Alloys Pvt. Ltd., in question and made payment through account payee cheque.
In the present case, the goods received by the appellant for manufacturing of goods, which has been cleared on payment of duty. In that circumstance, Cenvat credit is allowed to the appellant - appeal allowed - decided in favor of appellant.
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2020 (3) TMI 453 - CESTAT MUMBAI
Permission for withdrawal of application - Appellant have already opted for Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- The Appeal filed by the Appellant before this Tribunal ceases to exist and the same is accordingly dismissed as withdrawn.
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2020 (3) TMI 452 - CESTAT NEW DELHI
Interest on demand - grievance of the appellant is that the lower authorities, while confirming the demands as held by the Tribunal, should not have confirmed the interest inasmuch as the period involved is the period when there were no interest provisions - further, it is submitted that, the interest, if at all, should have been charged for the period subsequent to passing of the adjudication order, inasmuch as the said amounts were deposited prior to the passing of the final order confirming the demand no liability would arise.
HELD THAT:- The challenge to the confirmation of interest, at this stage, would amount to challenging the earlier order of the Tribunal, which has attained finality. This Bench has no jurisdiction to sit in appeal over the earlier order of the Tribunal. If the appellant were of the view that no interest liability would arise against them, they should have contended so before the earlier bench or should have challenged the said order of the Tribunal - Inasmuch as the interest liability stands confirmed by the earlier order of the Tribunal, there are no reasons to interfere in the impugned orders of the authorities below, which are in conformity with the order passed by the Tribunal.
Appeal dismissed.
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2020 (3) TMI 451 - CESTAT AHMEDABAD
Refund of CENVAT Credit reversed - effect of amendment made vide notification no. 06/2015 dated 01/03/2015, prospective or retrospective effect? - Rule 6(4) of the Cenvat Credit Rules - HELD THAT:- The appellants were availing small scale exemption at the time when the capital goods were received in their factory in the year 2012-13. The appellant took registration in the year 2017. At the time of receipt of goods, there was no restriction on time for availing Cenvat credit on capital goods received in the factory. The said time limit was introduced by amendment by N/N. 06/2015 dated 01/03/2015 - The decision in the case of BHARAT RESINS LTD. VERSUS C.C.E. & S.T. – SURAT-I [2019 (9) TMI 701 - CESTAT AHMEDABAD] squarely covers this issue and held that the time limit introduced for availing Cenvat Credit on capital goods by the notification no. 06/2015 only has prospective effect and cannot be applied to the said amendment. In these circumstances, the appellant becomes eligible to avail the Cenvat credit on the capital goods without any restriction of the time limit imposed by notification no. 06/2015 dated 01/03/2015.
Another point argued by the Revenue is that at the time when the Capital goods were received, the appellants were not entitled to avail the Cenvat Credit as the goods manufactured by them were fully exempt - HELD THAT:- It is seen that the appellants at the material time were claiming full exemption by virtue of notification and granted exemption on the basis of the value of clearances made during the Financial year - In the case of Nova Plasmold Pvt. Ltd. [2017 (7) TMI 1121 - CESTAT ALLAHABAD], it has been held that in view of Rule 6(4) of Cenvat Credit Rules, the restriction on availment of Cenvat Credit does not apply if the goods are exempted by virtue of notification which grants all exemption on the basis of the clearance made during any financial year - In these circumstances, the appellant becomes eligible for Cenvat Credit.
However, it is seen that the appellants have voluntarily reversed the Cenvat Credit and now are seeking the refund. There is no provision for granting refund of any Cenvat credit voluntarily reversed by the appellant - Refund of any credit can only be granted when it is sanctioned by law and there are specific provisions for it. There is no provision for sanctioning of refund against reversal of credit in the present circumstances and thus, while the appellants may be entitled to Cenvat credit and may have wrongly reversed the Cenvat Credit, they cannot claim refund of the same.
Appeal dismissed - decided against appellant.
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2020 (3) TMI 431 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
Rebate of duty - failure to self-sealing of the exported goods - rejection on the ground that the respondent had contravened the procedure enumerated in para 3(a)(i), (ii) & (iii) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 issued under Rule 18 of C.E. Rules, 2002 - HELD THAT:- It is observed that the rebate of duty on the export goods is allowed under Notification No. 19/2004-C.E. subject to the conditions, limitations and procedures specified in Para 2 and Para 3 thereof. While conditions and limitations are specified in Para 2, the procedure to be followed is specified in Para 3 of this notification. From the word “shall” used in Para 2(a) to 2(g) of the notification (supra), it is evident that all the conditions and limitations mentioned in Para 2 are mandatory and non-negotiable. Further the condition that the excisable goods shall be exported after payment of duty is a substantive condition for claiming the rebate of duty. Similarly the procedure relating to sealing of goods and examination at the place of dispatch and export thereof specified in Para 3(a)(i), ((ii) and (iii) of the notification are also mandatory - The essence conditions and procedure prescribed thereunder is to establish the identity and the duty paid character of export goods which has not been done in the present case which is a substantive condition of notification.
Commissioner (Appeals) observation that the warehouse appearing in para 2(a) of the notification includes the warehouse of the merchant exporter is incorrect. Therefore his findings that the merchant exporter could have cleared the impugned goods from his warehouse under self-sealing procedure is fallacious - The Government is of the view that the Commissioner (Appeals) has not appreciated the true facts; the real spirit and the text of the Notification 19/2004, dated 6-9-2004 and granted relief to the applicant erroneously.
The government agrees with the applicant’s contention that contravention of the mandatory conditions stipulated in Para (2) & Para (3) of the Notification No. 19/2004, dated 6-9-2004 cannot be waived or relaxed under Rule 18 of Central Excise Rules, 2002 - revision allowed.
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2020 (3) TMI 375 - SUPREME COURT
100% EOU - allegation that they were doing job work in violation of Exim policy - quantum of sale made to DTA unit - debonding - conversion of raw material supplied by M/s Tata Iron & Steel Company Ltd. - transfer of Manganese Ore by TISCO to UFAC for the purposes of processing the same and converting it into Silicon Manganese - sale and purchase - case of Revenue is that since in the transaction between UFAC and TISCO there is no transfer of property in goods, the same cannot be termed as ‘sale’ and therefore would not be covered under paragraph 9.9 (b) of the EXIM Policy - HELD THAT:- The perusal of the definition makes it clear that when there is a transfer of possession of goods in the ordinary course of trade or business either for cash or for deferred payment or any other valuable consideration, the same would be covered by the terms ‘sale’ and ‘purchase’ within the meaning of the Central Excise Act, 1944. Undisputedly, in the present case, there is a transfer of Manganese Ore by TISCO to UFAC for the purposes of processing the same and converting it into Silicon Manganese. Undisputedly, the same is also for a valuable consideration.
This Court has held, that it is a settled principle in excise classification that the definition of one statute having a different object, purpose and scheme cannot be applied mechanically to another statute. It has further been held, that the conditions or restrictions contemplated by one statute having a different object and purpose should not be lightly and mechanically imported and applied to a fiscal statute - It is also equally well settled that the first principle of interpretation of plain and literal interpretation has to be adhered to. We are therefore of the considered view, that the narrower scope of the term ‘sale’ as found in the Sale of Goods Act, 1930 cannot be applied in the present case. The term ‘sale’ and ‘purchase’ under the Central Excise Act, 1944, if construed literally, it would give a wider scope and also include transfer of possession for valuable consideration under the definition of the term ‘sale’.
Whether under the EXIM Policy, UFAC was entitled to carry out the job-work for TISCO and whether it was entitled to exemption from payment of duty under the Exemption Notification? - HELD THAT:- Under para 9.9(a) of the EXIM Policy, EOU is entitled to sell the rejects in the DTA on prior intimation to the Customs authorities. Such sales are to be counted against DTA sale entitlement under paragraph 9.9(b) of the EXIM Policy. The sale of rejects shall be subject to payment of duties as applicable to sale under paragraph 9.9(b) of the EXIM Policy - Under paragraph 9.9(b) of the EXIM Policy, DTA sale upto 50% of the FOB value of exports is also permitted subject to payment of applicable duties and fulfilment of minimum Net Foreign Exchange earning as a Percentage of exports (NFEP) as prescribed in Appendix1 of the Policy.
It can thus clearly be seen, that paragraph 9.9(b) and paragraph 9.17(b) of the EXIM Policy operate in totally different fields. Under paragraph 9.9 (b), an EOU is entitled to sell upto 50% of the FOB value of exports to DTA subject to payment of applicable duties and fulfilment of minimum NFEP as prescribed in Appendix-I of the Policy, whereas under paragraph 9.17(b), an EOU is entitled to undertake job-work for export, on behalf of DTA units, with the permission of Assistant Commissioner of Customs, provided the goods are exported direct from the EOU/EPZ units. In such type of exports, the DTA units would be entitled for refund of duty paid on the inputs by way of Brand Rate of duty drawback.
In view of paragraph 10 of the Circular dated 22.5.2000, the facility of undertaking job-work by EOU/EPZ units which was restricted to specific sectors has been amended and the said facility has been extended to all sectors. It has also been provided, that DTA units shall be entitled to brand rate of duty draw back. Similarly, paragraph 11 of the Circular dated 22.5.2000 also provides, that the facility which was given to EOU/EPZ to undertake job-work on behalf of DTA units in textiles, readymade garments and granite sectors which was subsequently extended to the EOU/EPZ units in aquaculture, animal husbandry, hardware and software sectors vide Circular dated 5.11.1999, was extended to EOU/EPZ units in all sectors. It has further been provided, that DTA units shall be entitled to avail of the brand rate of duty drawback for such job-work undertaken by EOUs/EPZ units concerned. It also provides, that earlier circulars issued by the Board stood modified to the said extent - failure on the part of the Commissioner, who passed the order-in-original, to notice the Circular dated 22.5.2000 has resulted in passing an erroneous order. It also appears, that after the show cause notice was issued to UFAC, the Commissioner had sought a clarification from the Sponsoring Authority i.e. the Development Commissioner, SEEPZ vide communication dated 6.11.2001.
The combined reading of paragraph 9.9(b) of the EXIM Policy, the Circulars issued by the Board, particularly, the Circular dated 22.5.2000 and reply to the query of the Customs Authorities by the Development Commissioner, SEEPZ would clearly show, that the UFAC was entitled to carry out the job-work on behalf of TISCO on payment of duty as provided under Exemption Notification of 1997.
If such an interpretation is accepted, the words “unless specifically provided in such notification” in subsection (1) of Section 5A will have to be ignored and the said words would be rendered otiose. It is a settled principle of law that while interpreting a provision due weightage will have to be given to each and every word used in the statute - the interpretation as sought to be placed by Shri Radhakrishnan would render the term “unless specifically provided in such notification” in subsection (1) of Section 5A otiose or useless. Such an interpretation would not be permissible.
The harmonious construction of sub-Section (1) of Section 5A of the Act and the proviso thereto would be, that an EOU which brings the excisable goods to any other place in India would not be entitled for a general exemption notification unless it is so specifically provided in such a notification - since the said Exemption Notification specifically mentions, that the goods produced or manufactured by an 100% EOU, which are allowed to be sold in India in accordance with para 9.9(b) of the EXIM Policy, the proviso would be inapplicable thereby, requiring the duties to be paid, as are required to be paid under subSection (1) of Section 3 of the said Act.
Undisputedly, in the present case, the transaction between UFAC and TISCO satisfies all the three conditions. The goods are produced and manufactured by UFAC, an 100% export-oriented unit; they are manufactured wholly from the raw materials produced or manufactured in India and, thirdly, they have been allowed to be sold in India in accordance with the provisions of paragraph 9.9(b) of the EXIM Policy.
There would not be any conflict in the amended provisions of clause (ii) of the proviso to subsection (1) of Section 5A of the Act and the said Exemption Notification. In any case, by the 2001 Amendment, the legislature has not laid down any exhaustive code in respect of the subject matter in replacing the earlier law. It appears, that the said Amendment has been incorporated to bring the said clause (ii) of sub-Section (1) of Section 5A in sync with the words used in clause (i) of the proviso to subsection (1) of Section 5A of the Act and the words used in the proviso to subsection (1) of Section 3 of the Act. In that view of the matter, we find, that the said contention is without substance.
What this Court has held is, that no permission is required to sell goods manufactured by 100% EOU lying with it, at the time approval is granted to debond. It has been held, that the expression “allowed to be sold in India” in the proviso to Section 3(1) of the Act was applicable only to sales made upto 25% of production by 100% EOU in DTA and with the permission of the Development Commissioner - Admittedly, in the present case, the sales made by UFAC to TISCO are within the permissible limits and with the permission of the Development Commissioner.
The CESTAT has not committed any error in reversing the orders-in-original passed by the Commissioner - appeal dismissed.
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2020 (3) TMI 374 - CALCUTTA HIGH COURT
Rejection of Rebate claim - rejection on the ground of time limitation - rejection on the omission of petitioners to submit original documents amounting to an irregularity of procedure provided in Central Excise Rules, 2002 - sections 35C and 35EE of CEA - HELD THAT:- Dictionary meaning of word ‘annul’ is given as, to declare invalid. Court has perused impugned order. It is clear Central Government sat in appeal to confirm order in original, on setting aside appellate order. Inserted by amendment sub-section (1A) in section 35EE clearly requires the Commissioner to apply for revision. Revision is not appeal.
Petition allowed.
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2020 (3) TMI 373 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
Rebate claim - Cenvat credit reversed on depreciated value of imported capital goods (machinery parts) at the time of their export - whether the rebate of duty can be granted in case of reversal of Cenvat credit of CVD paid on imported capital goods at time of their export subsequently?
HELD THAT:- Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 allows rebate claim only in those cases where the goods are manufactured in India and are liable to Central Excise duty and the same has been paid at the time of export. Since the imported goods are not liable for Central Excise duty under the Central Excise Act, 1944 no rebate claim can be filed in respect of such goods which are not excisable under Central Excise Act, 1944.
In the present case the applicant could have availed duty drawback under Section 74 of the Customs Act, 1962 read with Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. Section 74 states that any goods which were earlier imported and then re-exported (whether used or unused), the importer can claim the duty paid at the time of import as Drawback on the fulfilment of certain condition as specified under Section 74 of Customs Act 1962. Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995 have been formulated in exercise of the powers conferred by Section 74 of the Customs Act, 1962.
The revision application cannot be considered in terms of Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 - the Government does not find any deficiency in the Commissioner (Appeals)'s order and the revision application filed by the applicant is rejected.
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2020 (3) TMI 372 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
Refund of Excise Duty - time limitation - rebate on the enhanced value which includes the expenses incurred on account of freight and insurance etc. - HELD THAT:- Government finds that it is not in dispute that the goods were exported and Central Excise duty has been paid on the export goods. The applicant has paid duty as per value mentioned in ARE-1 which is higher than the transaction value determined under Section 4 of Central Excise Act, 1962 and has claimed rebate on the enhanced value which includes the expenses incurred on account of freight and insurance etc. It is observed that the original adjudicating authority has credited the excess amount paid as duty on export goods in the Cenvat credit account as per the applicant’s request.
The Government is of view that the excess amount paid by the applicant on freight and insurance was not payable as Central Excise duty. It is observed that rebate can be granted only to the extent of duty paid on export goods. The amount paid in excess of duty payable does not assume the character of duty as defined under Rule 2(e) of Central Excise Rules, 2002 in which ’duty’ means the duty payable under Section 4 of the Central Excise Act.
The Government is of the view that the applicant should have followed the provisions of Cenvat Credit Rules, 2017 [Notification No. 20/2017-C.E. (N.T.), dated 30-6-2017] for claiming the Cenvat credit allowed to him by the Adjudicating Authority during the transitional period or the procedure prescribed under sub-sections (3), (4) & (5) of Section 142 of CGST Act, 2017 which prescribes that refunds of tax/duty paid under the existing law, viz. Central Excise Act, 1944, shall be disposed of in accordance with the provisions of the existing law - Since the applicant has not followed the aforesaid procedure prescribed by law, Revision Application is non-maintainable and is rejected.
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2020 (3) TMI 371 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
Rebate of duty - failure to self seal the consignment of export - Present Revision Application has been filed by applicant mainly on the ground that the applicant missed out the self-sealing of the goods as prescribed under Notification No. 19/2004, dated 6-9-2004 and the goods were exported to Bangladesh on 5-8-2012 wherein the officer concerned has given the cross border certificate in the prescribed format of the said notification and they had received the payment remittance against the said export - HELD THAT:- It is evident that the Commissioner (Appeals) order is sought to be revised. Under Rule 18, the essential condition for granting the rebate is that the goods are exported and duty has been paid on such export goods. It is not in dispute that the respondent has exported the goods on payment of duty and filed claim for rebate of duty with jurisdictional CE authorities. The Commissioner (Appeals) has contended that the respondent had not followed the procedure as prescribed under Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 as the vehicle used in procuring the goods and the vehicle that carried the goods to Bangladesh border were different and the goods were neither sealed by the Central Excise Officer nor was it self-sealed by the applicant which makes the export of the same goods doubtful.
The Government is of the view that this is a procedural lapse on the part of the respondent. The fact that the customs officer at Petrapole LCS has given a cross border certificate and remittance has also been received against the said export is undisputed. Hence Government allows the rebate of ₹ 63,036/- to the applicant.
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2020 (3) TMI 370 - CESTAT HYDERABAD
Refund of CENVAT Credit - doctrine of unjust enrichment - rejection of refund on the ground that the appellant herein did not produce any evidence to show that the incidence of service tax has not been passed on to any other person - HELD THAT:- Insofar as establishing the issue of doctrine of unjust enrichment is concerned, posting of the refund figure in the balance sheet under the head “Claims Receivable” is recognised as an acceptable principle in the accounting policy. Thus, on reflection of the refund amount in the balance sheet under such heads of account, without making any specific treatment/entry of the same in the profit and loss account should prove the fact that the incidence of duty of the tax amount has not been passed on to any other person. Thus, we are of the considered view that the balance sheet should be considered as the primary evidence and not secondary evidence, as held in the impugned order.
Inasmuch as the appellant herein has specifically produced the profit & loss account as well as the balance sheet for the relevant period, both before the original as well as first appellate authority, to demonstrate that the incidence of duty has not been passed on to any other person and the same has in fact, been borne by it. Since entry in the accounting head of “Loans and Advances” under the column of “Claims Receivable” is sacrosanct for consideration of the issue of applicability of the doctrine of unjust enrichment, the case in hand merits consideration in favour of appellant and thus, the amount in question should appropriately be paid to the claimant-appellant instead of it being credit to the Consumer Welfare Fund.
There are no merits in the impugned order passed by the Ld. Commissioner (Appeals) - appeal allowed - decided in favor of appellant.
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2020 (3) TMI 369 - CESTAT CHENNAI
Refund of Excise Duty - doctrine of merger - time limitation - section 11B of CEA - HELD THAT:- Delhi Bench of the Tribunal in the case of M/s. Mahanagar Telephone Nigam Ltd. [2016 (12) TMI 1276 - CESTAT NEW DELHI] was seized of a more or less similar issue and was dealing with refund under Section 11B of the Central Excise Act, 1944, as in the case on hand.
From the discussions of the Delhi Bench, which has found that the claim for refund, which was made after the dismissal of SLP, was correct and the same applies to the case on hand also, since upon the Revenue preferring an appeal against the Order-in-Appeal (with the assessee also filing its cross-objection), the matter was sub judice before the Tribunal and naturally, when the matter was lis pendens, no such application for refund could be filed.
The appellant’s claim for refund is not hit by limitation - Appeal allowed - decided in favor of appellant.
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