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Central Excise - Case Laws
Showing 81 to 100 of 108 Records
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2020 (3) TMI 368 - CESTAT CHENNAI
Refund claim - unjust enrichment - whether the appellant has passed the test of unjust enrichment in order to claim the refund amount? - HELD THAT:- It is not in dispute that the appellant has paid excess duty. The amount sanctioned has been directed to be paid to the Consumer Welfare Fund.
The main ground on which the authorities below have directed the amount to be credited to the Consumer Welfare Fund is for the reason that the appellant has failed to furnish documents to show that the burden of duty has not been passed on to another. In para 6 of the Order-in-Original, the original authority has noted that the appellant has furnished all details with regard to invoices on which discounts have been claimed etc. It is also noted that they have produced the Chartered Accountant’s certificate in support of their contention that the duty liability has not been passed on. The said Chartered Accountant’s certificate has been rejected by the original authority holding that there is no certification of the correctness of the statements and also that the full signature of the Chartered Accountant’s certificate is not endorsed in the worksheets. There are no substance in the grounds raised with regard to the Chartered Accountant’s certificate.
Wherever the excise duty has not been passed on to the buyer the same is noted in the work sheet. it is shown as discounts passed on which credit notes are allowed. One has to read the certificate issued by the Chartered Accountant along with worksheet. In such as case, it can be seen that only for the incidence where the duty has not been passed on to another, the appellant has claimed refund. Thus, on a perusal of the Chartered Accountant’s certificate, no discrepancy found, so as to reject the same.
The credit note/debit note itself would reflect the amount paid and the payments cannot be seen from the bank transactions or such other payment receipts. Therefore, the allegation that the appellant has not produced payment receipts and bank statements cannot sustain.
Since both the authorities have stated that the appellants have not produced the credit note/debit note before them and only produce a detailed worksheet, the matter can be remanded to the adjudicating authority for reconsideration of documents by call of the report from range superintendent based on the detailed worksheets attached to the Chartered Accountant’s certificate in order to satisfy whether the burden of duty has not been passed on - appeal allowed by way of remand.
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2020 (3) TMI 312 - BOMBAY HIGH COURT
Reversing of lapsed cenvat credit - Rule 11(3) of CCR, 2004 - Benefit of Notification dated 9 July 2004 availed and balance of CENVAT Credit reversed - Appellant put the Respondent to the notice in respect of their failure to reverse the CENVAT Credit of ₹ 2,86,83,157/- in terms of Rule 11(3).
The contention of the Appellant is that Rule 11(3) of the Cenvat Credit Rules, 2004 envisaged lapsing of remaining CENVAT Credit and that being the position it could not have been utilized by the Respondent and their action of doing so has resulted on a tax liability which is rightly to be enforced through the show cause notice.
HELD THAT:- The bare perusal of Sub Rule (3) of Rule 11 shows that stipulation of lapsing is included in Clause (ii) and not in Clause (i). These two clauses are separated by hyphen and use of the word ‘or’. Secondly in the Rule 11(3) (i) it is the option given to the manufacturer or producer for obtaining exemption. In category (ii) there is no such option but a reference is made for final product which has been exempted absolutely under Section 5A of the Act. Therefore, these two categories being distinct, the placement of stipulation cannot be considered as a mere draftsman error.
The questions as proposed do not give rise to any substantial question of law - Appeal dismissed.
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2020 (3) TMI 311 - CESTAT CHANDIGARH
Maintainability of appeal - appeal was dismissed for the reason that the Appellant had not made the pre-deposit - Appellant sought for extension of the time for making the pre-deposit from the High Court - Demand of duty alongwith penalties - HELD THAT:- On the same investigation and on the same set of facts, a common show cause notice was issued to M/s Uma Synthetics Pvt Ltd, M/s Priya Textiles Ltd and present Appellant, which was decided by a common Order-in-Original - The Appeals of co-noticees namely M/s Uma Synthetics Pvt Ltd and M/s Priya Textiles Ltd have been already allowed.
Nothing new has been got on record to challenge the findings recorded by the Tribunal in the order in respect of appreciation of evidences or the interpretation of law.
Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 310 - CESTAT NEW DELHI
Imposition of penalty u/r 26 of CER - cenvat credit availed on inputs without physically receiving the goods - penalty has been imposed on the basis of third party evidence i.e. the statement of transporter and none of the transporter was called for examination in chief and no cross examination was granted to the appellant.
Penalty imposed on Neeraj Thakur - HELD THAT:- The penalty has been imposed being Director of M/s VKM Electricals Limited. It is a fact on record that the appellant was mere Director of that company but was not looking after the business affairs of that company. It has been revealed from the facts of the case as Shri V. K. Madan in his statement admitted that he was looking after affairs of the company - Admittedly, no efforts has been made by the Revenue to find out the role of the appellant for availing fraudulent cenvat credit by M/s UEL - the penalty on Neeraj Thakur is not imposable.
Penalties imposed on Lalit Thakuria, Ajay Goel and Anant Bomb - HELD THAT:- The appellants are C&F agents to clear the goods to UEL of different suppliers. It has been alleged that goods have not delivered to UEL on the basis of the statement of the transporters recorded during the course of investigation. No physical verification was conducted at the premises of the appellants. Moreover, the statement of the transporters have been relied upon who have never called for examination in chief. Therefore, penalties have been imposed on the appellants on the basis of the statement of the transporter and records recovered from the premises of UEL are not sustainable - penalties set aside.
Further, no other corroborative evidence has been brought on record that the appellant have not supplied the goods to UEL.
The impugned order qua imposition of penalty on all the appellants is set aside - Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 309 - CESTAT CHENNAI
Clandestine removal - branded mineral water - allegation that appellant had not declared the same to the Department and did not raise Central Excise invoices - extended period of limitation - HELD THAT:- It is very clear from the ruling of the Hon’ble Supreme Court in COLLECTOR OF CENTRAL EXCISE VERSUS CHEMPHAR DRUGS & LINIMENTS [1989 (2) TMI 116 - SUPREME COURT] that something positive other than mere inaction or failure on the part of the manufacturer, conscious or deliberate withholding of information when the manufacturer knew otherwise is required before he is saddled with any liability.
In the present case, Revenue has alleged that there was suppression on the part of the appellant due to non-registering themselves with the Department. The said reason is not sufficient to invoke extended period of limitation. When Revenue came to know about the manufacture of packaged drinking water by the appellant in the month of May 2009, then they should have issued Show Cause Notice raising the demand to the appellant within a period of one year from May 2009. Since the demand was raised after May 2010, i.e. on 03.11.2010, therefore the same is hit by limitation.
Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 308 - CESTAT CHENNAI
Valuation - goods supplied on principal to principal basis - job-work or not - Department observed that M/s. Inova was only acting as a job worker for M/s. Roca and that the goods were not ordinarily sold at the factory gate of M/s. Inova and hence, the price adopted for payment of duty by M/s. Inova was not the sole consideration for sale as per Section 4 (1) (a) of the Central Excise Act, 1944 - HELD THAT:- It is an admitted fact, as seen from the Show Cause Notice as well as the impugned order, that M/s. Inova has procured the urinal casings from M/s. Roca by transaction of purchase and sale. Merely because the goods manufactured by M/s. Inova bear the brand name of M/s. Roca, the Department has viewed the transaction as a manufacture done by a job worker on behalf of the principal manufacturer.
The very same issue decided in the case of SUJHAN INSTRUMENTS VERSUS COMMISSIONER OF CENTRAL EXCISE, CHENNAI-II, HONEYWELL ELECTRICAL DEVICES AND SYSTEMS INDIA LTD. VERSUS PRINCIPAL COMMISSIONER OF CENTRAL EXCISE, CHENNAI-I AND COMMISSIONER OF GST &CENTRAL EXCISE, CHENNAI VERSUS SUJHAN INSTRUMENTS [2018 (7) TMI 420 - CESTAT CHENNAI] where it was held that when the transaction is on principal to principal basis, the allegation that the assessee is manufacturing as a job worker for the principal manufacturer cannot sustain.
The demand do not sustain - penalty also do not sustain - appeal allowed - decided in favor of appellant.
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2020 (3) TMI 307 - CESTAT CHENNAI
CENVAT Credit - inputs or input services attributable to both exempted goods/exempted services and dutiable goods and taxable services - whether the total credit that should be taken for calculation in terms of Cenvat Credit Rule 6 (3A) should be restricted to only common inputs or common input services only?
HELD THAT:- The appellant’s case is covered by the decision of the Ahmedabad Tribunal in the case of Commissioner of Central Excise & ST, Rajkot Vs. Reliance Industries Ltd. [2019 (3) TMI 784 - CESTAT AHMEDABAD] wherein it had been held that nowhere in Rule 6 it is provided that the input or input service used in dutiable goods shall not be allowed. The Revenue is only interpreting the term “total Cenvat credit” provided under the formula. If the whole Rule 6(1)(2)(3) is read harmoniously and conjointly, it is clear that “Total Cenvat Credit” for the purpose of formula under Rule 6(3A) is only total Cenvat credit of common input service and will not include the Cenvat credit on input/ input service exclusively used for the manufacture of dutiable goods. If the interpretation of the Revenue is accepted, then the Cenvat credit of part of input service even though used in the manufacture of dutiable goods, shall stand disallowed, which is not provided under any of the Rule of Cenvat Credit Rules, 2004.
Revenue was unable to distinguish the order/decision relied on by the Ld. Advocate and nor did he file any contrary order/decision in his support - appeal allowed - decided in favor of appellant.
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2020 (3) TMI 306 - SETTLEMENT COMMISSION, CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, KOLKATA
Maintainability of Application for Settlement application - bar under Section 32-O of the Act - co-applicant earlier approached Customs, Central Excise & Service Tax Settlement Commission, Additional Bench, Kolkata and was subsequently penalized ₹ 50,000/- - HELD THAT:- The debarring provision under Section 32-O(1)(i) refers to the case of the assessee to whom a SCN demanding duty has been issued and if during the process of settlement, the assessee has been imposed with certain amount of penalty, then such assessee cannot approach the Commission once again in a second .case where a demand has been issued to him. The co-applicant is a person other than the assessee and no demand for payment of any duty or tax has been issued to him. It is only because he has been implicated in the SCN demanding duty to the assessee with a proposal of penal action, he has approached the Settlement Commission to settle his issue. He therefore cannot be barred from approaching the Settlement Commission, if he is penalised earlier, as a main applicant or a co-applicant because he is not the main applicant.
In the present case, M/s. Royal Touch Fablon Private Limited (Unit-1), the Co-applicant No. 1, has been proposed penalty in the SCN. This SCN was issued to M/s. Royal Touch Fablon Private Limited (Unit-IV). The case of M/s. Royal Touch Fablon Private Limited (Unit-IV) has already been settled by the Commission where he has applied as main applicant.
Here, the co-applicant, M/s. Royal Touch Fablon Private Limited (Unit-I), has approached the Settlement Commission under Section 32E(5) to decide the issue of imposition of penalty. He has been penalised earlier in a case relating to him where he was an assessee and the main applicant. Since he is not the main applicant in the present case, he will not be debarred from approaching the Settlement Commission. Had he been the main applicant in this case to whom a duty demand has been issued in the form of a SCN, he would have been barred from approaching the Commission as he was penalised earlier in the settlement of another case relating to him where a SCN was issued to him demanding duty - the Commission is of the opinion that M/s. Royal Touch Fablon Private Limited (Unit-I), the Co-applicant No. 1, is not debarred from approaching the Settlement Commission and thus the Commission is admitting his case to decide the issue of penalty and prosecution.
The Bench settles the case on the following terms and conditions :-
(a) The Bench imposes penalty of ₹ 10,000/- (Rupees ten thousand only) on M/s. Royal Touch Fablon Private Limited (Unit-I) (Co-applicant No. 1), under the provisions invoked in the show cause notice and grants waiver in excess of the penalty indicated herein.
(b) The Bench granted full immunity from penalty to Shri Vikas Kandoi (Co-applicant No. 2), Shri Raj Kr. Jaisansaria (Co-applicant No. 3) and Shri Pawan Sharma (Co-applicant No. 4).
(c) Subject to the payment of the amounts ordered above by the Co-applicant No. 1 within 30 days of receipt of the order, the Co-applicant No. 1 is granted immunity from prosecution under the Central Excise Act, 1944 and Customs Act, 1962.
(d) Shri Vikas Kandoi (Co-applicant No. 2), Shri Raj Kr. Jaisansaria (Co-applicant No. 3) and Shri Pawan Sharma (Co-applicant No. 4) are granted immunity from prosecution under the Central Excise Act, 1944 and Customs Act, 1962.
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2020 (3) TMI 256 - SC ORDER
Application for withdrawal of appeal - monetary amount involved in the appeal - HELD THAT:- On instructions issued by the Department of Revenue, Ministry of Finance vide F.No.390/Misc./116/2017-JC dated 22.08.2019, seeks permission to withdraw this appeal along with pending applications therein due to low tax effect.
The appeal and pending application are dismissed as withdrawn, leaving question of law open.
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2020 (3) TMI 255 - CESTAT BANGALORE
Benefit of exemption - intermediate product - Agarbathi Masala - final product exempt from duty - N/N. 67/95 dated 16.03.1995 (as amended) - Department after going through the entire process of obtaining agarbathis found that agarbathis masala manufactured by the appellant and captively consumed by them in the manufacture of agarbathis, was excisable as odoriferous compound and classifiable under Tariff Item No. 33029090 of the Central Excise Tariff - whether this intermediate product will enjoy benefit of exemption or not?
HELD THAT:- The appellants are the manufacturers of Agarbathi by the process of mixing of odoriferous compound of various fragrances as per this proprietary formula and sprinkling the same on raw Agarbathis. Agarbathis classifiable under Tariff Item No. 33074900 of CETA and is chargeable to ‘NIL’ duty. Agarbathi Masala is mixed and captively consumed by the appellant for applying on to Agarbathi and is prepared based on proprietary formula which is a trade secret - Further, the appellant does not market the Agarbathi Masala. Further, we find that in the CBEC Circular No. 495/61/99-CX-3 dated 22.11.99 which holds that “odoriferous compound used for manufacture of Agarbathi is not excisable”. Further, the said Circular referred to two processes of manufacture of Agarbathi (a) by mixing the Agarbathi Masala with dough and rolling it into Agarbathi, (b) by sprinkling on raw Agarbathi.
In the present case, the Respondent has held that the Circular is inapplicable to the appellant’s case as the Agarbathi Masala mixed by the appellant is marketable and hence excisable. Further, by this subsequent Circular No. 989/13/2014-CX.3, dated 7.11.2014, the Board clarified the marketability, if any, has to be determined based on evidence.
In the impugned order, the Original Authority has held that the appellant is entitled to CENVAT credit of duty paid on the inputs used in the preparation of Agarbathi Masala but the said CENVAT credit has not been calculated and the benefit of the same has not been given while confirming the duty demand on the appellant. Further, the method of determination of value of Agarbathi Masala by the Department has not excluded the duty paid on the inputs used for the preparation of Agarbathi Masala which is contrary to CAS-4 standard.
The cases needs to be remanded back to the Original Authority to decide de novo after affording an opportunity of cross-examination of the witnesses relied upon by the Respondent - appeal allowed by way of remand.
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2020 (3) TMI 254 - CESTAT BANGALORE
Classification of goods - HDPE/PP Tapes/fabrics - shading net fabric - whether classified under CETH 60069000 chargeable to duty @ 8% or classifiable under CETH 3926 9099 chargeable to duty @16%? - HELD THAT:- Tribunal has been consistently holding such material to be falling under Chapter 60 of CETA - In the case of Sunpack [2016 (1) TMI 919 - CESTAT CHENNAI] Tribunal has elaborately discussed the issue and have come to the conclusion that the instant goods are classifiable under 6005 9000. The Tribunal was concerned with a knitted fabric made of synthetic yarn made of strips less than 5mm.
Thus, the ‘Shading Net’ manufactured by the appellant is rightly classifiable under CETH 6005 9000 - appeal allowed - decided in favor of appellant.
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2020 (3) TMI 199 - CESTAT NEW DELHI
Clandestine removal - excesses and shortages of bricks and sponge iron - no corroborative evidences of allegation found - HELD THAT:- The entire case of the Revenue is based upon the shortages detected at the time of visit of the officers. There is no corroborative evidence showing any clandestine manufacture and removal of the goods. The legal position is settled laying down that clandestine removal allegations cannot be upheld only on the ground of shortages detected by the visiting officers, in the absence of any other evidence.
Inasmuch as in the present case, there is no other evidence to substantiate the charge of clandestine removal, impugned order is set aside - appeal allowed - decided in favor of appellant.
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2020 (3) TMI 198 - CESTAT KOLKATA
Valuation - inclusion of additional amount which has been collected by the appellant from their customers as representing VAT but which has not been deposited as VAT forms an additional consideration for sale, in the assessable value - HELD THAT:- There are several schemes of State Governments in which, as an incentive, businesses are allowed to collect amounts as representing VAT/Sales Tax but not remit the amount to the State Government. The question is whether in such cases the amounts so retained form part of the assessable value for the purposes of Excise Duty. Since such matters were pending in various States all these appeals or at least many of them were disposed of by the Hon’ble Apex court who held that Excise Duty has to be paid on such amounts which are retained by the assessee.
This judgment was not confined to any particular law of a particular state or a particular scheme but has laid down the law. Review Petitions filed against this judgment were also dismissed by the Hon’ble Apex Court. There is nothing on record to show that a larger Bench of Supreme Court has taken any contrary view - reliance can be placed in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS [2014 (3) TMI 42 - SUPREME COURT].
We therefore, find this judgment is binding on us and leaves us with no option but to hold that the assessee in the present case is bound to pay Excise Duty on the amounts collected as representing VAT but which were not paid to the government under the scheme.
Extended period of limitation - penalty - HELD THAT:- Such a suggestion preposterous considering that it is clearly on record that the Revenue is aware of modus operandi of the assessee. To allege fraud, collusion, willful misstatement or suppression of fact or violation of Act or rules with an intent to evade payment of duty and invoke extended period has no basis - the demand for extended period of limitation needs to be set aside - penalty also set aside.
The demand for the normal period of limitation is upheld and the demand for extended period of limitation is set aside - amounts which have been collected by the appellant as VAT and retained must be taken as cum duty price and Excise Duty are calculated accordingly - appeal is remanded to the Adjudicating Authority for the limited purpose of re-computation of duty.
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2020 (3) TMI 197 - CESTAT NEW DELHI
CENVAT Credit - denial on the sole ground that their factory address was not reflected in the invoices and only their head office address was shown - period from April, 2010 to March, 2015 - HELD THAT:- It is seen that the credit was availed by the appellant after reflecting the same in their RG-23A Part-I and Part-II registers - It is well settled law that substantive benefit cannot be denied on the basis of procedural lapses, if any. The appellant had also their head office and the address stands shown inasmuch as orders might have placed from the head office.
The Tribunal in the case of COMMR. OF C. EX. & SERVICE TAX, RAIPUR VERSUS DAYALAL MEGHJI AND COMPANY [2015 (12) TMI 488 - CESTAT NEW DELHI] has held that it is the appellant’s own head office and he would be entitled to take the credit on the basis of invoices issued in the name of the head office.
Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 196 - CESTAT NEW DELHI
CENVAT Credit - time limitation for claiming credit - credit denied on the allegations that the same stands availed after a period of six months from the date of issuance of the invoices and in terms of Notification No. 21/2014-CE dated 11 July, 2014, the credit is available only within a period of six months from the date of the invoices - HELD THAT:- The issue stands decided in BHARAT ALUMINIUM COMPANY LIMITED VERSUS JOINT COMMISSIONER OF CENTRAL TAX, GOODS & SERVICE TAX [2019 (7) TMI 1084 - CESTAT NEW DELHI] laying down that period of six months limitation provided with effect from 1.9.2014 would not apply to the Cenvatable invoices issued prior to the said date - credit remains allowed - appeal allowed - decided in favor of appellant.
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2020 (3) TMI 195 - CESTAT CHANDIGARH
CENVAT Credit - cutting and slitting of CR Coils - process amounting to manufacture or not - HELD THAT:- It is an admitted fact that after cutting and slitting of CR coils converting into sheets, the appellants have cleared the goods on payment of duty, therefore, in terms of the decision of the Hon’ble Bombay High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS AJINKYA ENTERPRISES [2012 (7) TMI 141 - BOMBAY HIGH COURT] wherein it has been held that when the goods have been cleared on payment of duty after utilizing the Cenvat credit and the same will be termed as reversal of Cenvat credit, therefore, we hold that payments of duty by the appellant shall amounts to reversal of Cenvat credit sought by the revenue in the show cause notice.
Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 150 - CESTAT AHMEDABAD
Refund of CENVAT amount and interest - the payment made during investigation or before issuance of show cause notice is in the nature of pre-deposit or not - applicability of time limitation - HELD THAT:- As per the fact of the present case the appellant have paid consciously and knowingly that the said payment is towards alleged wrong availment of cenvat credit and also paid interest thereon which is payable in terms of rule 14 of Cenvat Credit Rules, 2004. Therefore at the time of payment the nature of payment was clearly as of duty and not the deposit.
The payment of cenvat credit was considered by the tribunal as sufficient for hearing the appeal. It is obvious that once the appellant paid the substantial duty amount there cannot be further direction of separate deposit for hearing the appeal but that itself does not change the character of payment at the time when it was made. I am of the view that if the similar payment is considered as pre-deposit then in no case of refund section 11B will apply.
Both the lower authorities have rightly held, the refund is time bar - Appeal dismissed - decided against appellant.
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2020 (3) TMI 149 - CESTAT KOLKATA
Reversal of CENVAT credit on CVD and SAD - wheel sets for use in the manufacture of railway wagons. However, after availing the CENVAT Credit they have not used some of the wheel sets for manufacture of railway wagons, but instead transferred them to their Sister Unit at Sodepur after reversing the CENVAT Credit - extended period of limitation.
Case of Department is that while they availed CENVAT Credit on both the CVD and SAD they have reversed only the CVD and they have not reversed the credit of SAD availed by them.
HELD THAT:- It is not in dispute that the appellant assessee availed CENVAT Credit on the imported wheel sets in respect of both the CVD and SAD paid by them. It is not in dispute that against the same Bills of Entry some wheel sets were cleared on payment of duties and same were cleared under DEEC without payment of duty and it is not possible to separate duty paid goods from the goods cleared under DEEC. Therefore, the only way to decide whether the goods which were transferred to the sister unit were duty paid or duty free is based on the records of the assessee and how they treated the transferred goods.
It is not in dispute that the appellant assessee has treated the transferred goods as duty paid and also reversed some portion of the CENVAT Credit so availed. The amount of CENVAT Credit so reversed has been taken as credit by the sister unit. Under the circumstances, there are no force in the argument of the Assessee that the goods which were treated by them as duty paid for the purpose of reversing CENVANT Credit of CVD must be treated as duty free for the purpose of reversing SAD.
Extended period of limitation - HELD THAT:- There is force in the argument of the assessee that their sister unit gets credit of the amount of CENVAT Credit reversed by the appellant and therefore no malafide can be attributed to them. For extended period of limitation to be invoked, there must be fraud or collusion or willful misstatement or suppression of facts or violation of the provisions of the Act or Rates with an intent to evade payment of duties - none of these elements exists in the present case - the extended period of limitation under Section 11 (A) cannot be invoked.
Penalty under Rule 15 (1) of CCR 2004 - HELD THAT:- The penalty under Rule 15 (1) of CCR 2004 is imposable only when any person takes or utilizes CENVAT Credit wrongly. There is no such allegation at all in the Show Cause Notice. Therefore revenues appeal is liable to be rejected.
The appeal is remanded to original authority for the limited purpose of calculation of the amount of CENVAT Credit to be reversed for the normal period of limitation - appeal allowed by way of remand.
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2020 (3) TMI 148 - CESTAT NEW DELHI
CENVAT credit - fake invoices - supply of invoices only without supply of goods - it stands alleged by the Revenue that he was handling day-to-day affairs of M/s Unnati Alloys from whom the inputs were being received by M/s Arya Alloys - case of appellant is that there is no manufacture taking place, and no inputs received hence credit cannot be disallowed - HELD THAT:- On being questioned, learned Authroised Representative has not been able to bring out any other evidence on record except the statement of Shri Amit Gupta and the transporters and the allegations of receiving back of cash as against the payments made through banking channels - It is also a fact that the appellant was reflecting the receipt of the inputs in their statutory records. Further, the Revenue has not alleged that the inputs required for making the final product were procured by the appellant from any other source.
In the absence of the inputs, it is not possible to manufacture final product, which the appellant have shown to have manufactured and cleared on payment of duty.
There are no justifiable reasons to deny the Cenvat credit or to impose penalties upon the appellants - appeal allowed - decided in favor of appellant.
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2020 (3) TMI 147 - CESTAT CHENNAI
CENVAT credit - capital goods written off - contravention of provisions of Rule 3 (5B) of Cenvat Credit Rules 2004 - Department was of the view that when the appellants have made provision in their books of account for writing off the obsolete / non-moving capital goods they are required to reverse / pay up the cenvat credit pertaining to such capital goods - Extended period of limitation - HELD THAT:- There are no reason as to how the department has called upon to pay up the cenvat credit availed and written off by the appellants, whether partially or fully for the period from 1994-2010 by issuing a show cause notice on 30.4.2015. The annexure to the SCN shows the demand is raised in respect of the credit availed from 1994 to 2010. This annexure shows the year of purchase of capital goods from 1994 to 2009 and the written off the value is done during this period. In the year 2010 and thereafter, there is no writing off the value of the capital goods but the amounts were carried forward to subsequent years. The act of writing off has happened prior to 2010. Thus the allegation that the appellants have written off the value after the period 2010 is factually incorrect as evidenced from annexure to the show cause notice. For this reason itself, the demand raised invoking the extended period cannot sustain.
It is for the department to prove the allegations raised in the SCN. Even from the SCN or the documents placed before me, there is no evidence to show that the appellants have written off the full value of capital goods. There is only partial writing off to the extent of 50%, 70%, 90%. On such score, the amendment brought forth w.e.f. 1.3.2011 to reverse the credit on partial written off value would only apply. However, the provision for recovery of the credit availed wrongly has been introduced only w.e.f. 1.3.2013. This being the case, the demand raised for the credit availed from 1994-2010 and written off during this period cannot sustain.
Demand cannot sustain - appeal allowed - decided in favor of appellant.
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