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Central Excise - Case Laws
Showing 121 to 140 of 685 Records
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2020 (10) TMI 209 - BOMBAY HIGH COURT
Permission for withdrawal of appeal - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - It is stated that though the application has been accepted by the respondents and all the dues have been paid by the appellant, appropriate order has not been passed on the application only on the ground of pendency of the present appeal.
HELD THAT:- The appeal is allowed to be withdrawn - However, there shall be no order as to cost. Refund as per Rules.
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2020 (10) TMI 208 - PUNJAB AND HARYANA HIGH COURT
Rejection of Petitioner's declaration in form SVLDRS 1 under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- It is seen in the present case that as on 30th June, 2019, the four SCNs were not pending. In fact, these had been adjudicated and one consolidated order was passed in the four SCNs by the Additional Commissioner, Central Excise. Likewise, one consolidated order was passed by the Appellate Authority in the combined appeal. This has further led to one appeal being filed before the CESTAT. The Petitioner is, therefore justified in contending that in relation to the single pending appeal before the CESTAT one declaration is required to be filed even in terms of Rule 3 (2) of the SVLDRS Rules. The Court is, therefore, unable to appreciate why on a hyper-techincal ground that four separate declarations were not filed, the Petitioner's application under the SVLDRS should have been rejected.
The Court finds merit in the plea of Mr. Amar Pratap Singh, learned Counsel for the Petitioner that in the above circumstances Section 13 (2) of the General Clauses Act, 1897 can be invoked in terms of which the “words in the singular shall include the plural, and vice-versa” - Viewed from any angle, this Court is of the considered opinion that in the present case the Petitioner's application ought not to have been rejected only on the ground that one declaration, and not four, was filed on 30th December, 2019.
The impugned order dated 21st February, 2020 is hereby set aside - Petition allowed.
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2020 (10) TMI 204 - BOMBAY HIGH COURT
Permission for withdrawal of appeal - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - It is stated that though the application has been accepted by the respondents and all the dues have been paid by the appellant, appropriate order has not been passed on the application only on the ground of pendency of the present appeal.
HELD THAT:- The appeal is allowed to be withdrawn - However, there shall be no order as to cost. Refund as per Rules.
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2020 (10) TMI 203 - BOMBAY HIGH COURT
Rectification of mistake - amnesty scheme - Grievance of the petitioner is only limited to the finding recorded by the CESTAT that petitioner had played fraud on the court - HELD THAT:- Having regard to the settlement of tax liability of the petitioner through the amnesty scheme, we would not examine the grievance or otherwise as to the ultimate decision of the CESTAT. We are issuing notice only on the limited issue on the finding recorded by CESTAT that petitioner in the appeal had played fraud and the rejection of the rectification application on this point.
Issue notice, returnable within six weeks - Stand over to 3rd November, 2020.
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2020 (10) TMI 159 - JHARKHAND HIGH COURT
Maintainability of petition - requirement of mandatory pre-deposit - the specific case of the petitioner was that in its appeal and during hearing they had submitted that an amount of ₹ 12,50,000/- has already been deposited and the demand notice dated 14th August 2019 contained an amount of ₹ 7,86,135/- which has been deposited before issuance of the said demand and required to be appropriated - HELD THAT:- Once a demand raised by the authority amounting to ₹ 22,99,635/- has attained finality up to the stage of Tribunal, there is no scope of considering the grievance of the petitioner regarding adjustment of any amount against this demand which might have been deposited by the petitioner at any stage prior to the demand raised by the petitioner. It is also found from the record that the petitioner himself had availed of the scheme declaring that an amount of ₹ 22,99,635/- was due against the petitioner and thereafter it is not open to the petitioner to raise any further grievance regarding the outstanding dues which remained against the petitioner.
In exercise of the power under Article 226 of the Constitution of India, there is no scope for entering into the calculation which has been arrived at by the respondent department and on the face of it, it is not in dispute that the demand raised by the authority against the petitioner having attained finality, petitioner should go strictly as per scheme.
Petition dismissed.
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2020 (10) TMI 158 - CESTAT KOLKATA
Reversal of CENVAT Credit - time limitation - Rule 3(5A) of the CENVAT Credit Rules, 2004 - Revenue Neutrality - HELD THAT:- The appellant is seeking the benefit of time bar merely by submitting that the goods i.e. the scarp items have been transferred to their other factory at Ghaziabad and hence, whatever duty is paid at Sambalpur factory will be available as credit at the recipient Ghaziabad factory and hence there would be a revenue neutral situation.
The above contention is being raised for the first time before the Tribunal which was never pleaded before both the authorities below and hence cannot be allowed to be taken at this stage. The appellant appears to have been involved all along in delaying the adjudication and appeal proceedings. Moreover, the appellant has not submitted any rebuttal to the findings made by the original authority, which are grave in nature, while confirming the duty demand.
The appellant is not entitled to seek the mercy of time bar benefit - Appeal dismissed - decided against appellant.
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2020 (10) TMI 157 - CESTAT KOLKATA
Eligibility to avail CENVAT Credit - Export of exempted goods - denial of credit availed by the appellant in the ER-1 returns filed by them - It is the contention of the lower authorities that since after the amendment vide Notification no. 24/2010, the goods which are already exempted cannot be exported under bond for export outside India, the benefit of Rule 6(6) of the Credit Rules shall not be available to the appellant and hence, the appellant is not entitled to avail credit of duty paid on inputs used in the manufacture of exempted goods - HELD THAT:- Since the final product is exempted from payment of Central Excise duty no duty liability arises even if the same is cleared for domestic consumption. However, the appellant has cleared the said exempted goods for export outside India. The general provisions contained in Credit Rules provides that credit is not allowed to be claimed on inputs if the same is used in manufacture of exempted goods as would be clearly discernible on perusal of Sub-Rule (1) to (4) of Rule 6. However, Sub-Rule (6) of Rule 6 carves out an exception to provide that if the goods are cleared to SEZ or a 100% EOUs, EHTP, etc the restrictions contained in the said rules shall not apply, clearly implying that final products which have been exported would not be denied of the input credit benefit - Provision has also been made in Rule 6(6)(v) to state that goods cleared for export under bond in terms of Central Excise Rules shall also not be denied input credit, which also clearly implies that assessee shall be allowed to avail credit on inputs used in exported manufactured goods.
Subsequent amendment made in Notification No.42/2001 to do away with the requirement of following the bond related procedure in case of goods which are otherwise chargeable to ‘NIL’ rate of duty or wholly exempted is merely a procedure and has no relation whatsoever with the credit entitlement under Credit Rules. The disallowance of credit by both the authorities below in the instant case is not proper.
The issue has already been dealt by the Tribunal in the case of JOLLY BOARD LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2014 (3) TMI 124 - CESTAT MUMBAI] wherein the Bench after applying the ratio decidendi laid down by the various High Courts observed that In this case, appellant has not executed any bond for export of the goods. If the goods are exempted, execution of bond was not required. Appellant are entitled for refund claim - It is also emphasised and constantly held by the Tribunal that the policy of the Govt. of India is to promote the export of goods and not to export the domestic taxes and levies so as not to render the goods costlier in international market and un-competitive.
The appellant is duly entitled to avail credit and therefore, the impugned duty demand is not sustainable - Appeal allowed - decided in favor of appellant.
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2020 (10) TMI 156 - CESTAT NEW DELHI
Imposition of penalties u/r 26(2)(i) and Rule 26(2)(ii) of Central Excise Rules, 2002 - allegation that the appellant have issued invoices to M/s. Chandra Protecto Limited, Silvassa for supply of Copper Conductors, Copper Rods and Copper Wires whereas only invoices were issued without supplying the physical materials - HELD THAT:- It is a claim of the appellants that they have produced various documents and submissions however, the Adjudicating Authority has not properly dealt with the documents and submissions made by the appellants. Therefore, there is a violation of principles of natural justice.
Irrespective of any grave nature of offence, if the principles of natural justice are not followed, the order will not sustain - matter remanded to the Adjudicating Authority for passing a fresh order after considering all the documents and submissions thereon made by the appellants - appeal allowed by way of remand.
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2020 (10) TMI 155 - CESTAT MUMBAI
Availing cenvat credit against pre-deposit - to be considered as 'deposit of Service Tax or not' - amount pre-deposited by the appellant in terms of Section 35F of the Central Excise Act, 1944 pursuant to the stay order - HELD THAT:- Rule 3 ibid is the enabling provision, which entitles a manufacturer or a service provider to take Cenvat credit of various duties and service tax mentioned therein. The said rule nowhere prescribes that amount deposited under Section 35F ibid should be considered as either duty or service tax for the purpose of taking the Cenvat benefit. Since, payment made under 35F is not specifically finding any place in Rule 3 ibid, taking of such amount as Cenvat credit is contrary to such statutory provision and hence, denial of Cenvat benefit in the present case by the authorities below is in conformity with the statutory provisions - In view of the fact that Rule 3 of the rules does not consider the amount of pre-deposit as service tax for availment of Cenvat credit by the manufacturer/service provider, taking of such credit by the appellant is not proper and justified. Thus, the service tax demand confirmed by the original authority and upheld in the impugned order cannot be faulted with.
The department has invoked the provisions of Section 11AC of the Central Excise Act, 1944 for imposing mandatory penalty on the appellant. Insofar as invocation of the said statutory provision is concerned, the department has to specifically allege and prove with substantial evidence that there is element of fraud, collusion, willful misstatement, suppression of facts etc., with intent to evade payment of central excise duty/service tax. From the averments made in the appeal memorandum as well as the submissions made by the learned Advocate at the time of hearing of appeal, it transpires that the ingredients mentioned in Section 11AC ibid are absent and as such, the provisions of Section 11AC ibid cannot be invoked inasmuch as taking of Cenvat credit of the pre-deposit amount in question by the appellant was not owing to the reason of fraud, collusion, willful misstatement etc. - the availment of credit based on the valid and proper document cannot invite for the penal consequences by reason of fraud, collusion etc., with intent to evade Government revenue.
Imposition of penalty under Section 11AC ibid by the department cannot stand for judicial scrutiny - the appeal is partly allowed in favour of the appellant by setting aside the penalty imposed on it under Section 11 AC ibid.
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2020 (10) TMI 154 - CESTAT MUMBAI
Refund of CENVAT Credit - time limitation - rejection on the ground that the claim is barred by limitation of time inasmuch as the appellant had filed the refund application after almost 13 years from the date of reversal of the Cenvat credit in question - HELD THAT:- It is an admitted fact on record that the appellant in this case had filed the refund application after almost 13 years from the date of reversal of Cenvat credit. Insofar as the time limit for filing of refund application is concerned, Section 11B ibid in clear and unambiguous term provides that the claim application should be filed within 1 year from the relevant date. The refund application filed by the appellant was considered by the original authority under Section 11B ibid and denied such benefit to the appellant on the ground of limitation. Since, the Central Excise statute clearly mandates the time limit for filing of the refund application, denial of the refund benefit solely on the ground of limitation by the original authority is inconformity with the statutory provisions inasmuch as the adjudicating as well as the appellate authorities are created under the statute and cannot interpret the provisions of law in a different manner than as provided by the legislature.
The Hon’ble Supreme Court in the case of COLLECTOR OF CE., CHANDIGARH VERSUS DOABA CO-OPERATIVE SUGAR MILLS [1988 (8) TMI 103 - SUPREME COURT] have ruled that statutory provisions cannot be interpreted differently by the authorities functioning there under and since the statute has clearly prescribed a time limit for filing of the refund application, the same has to be strictly adhered to by such authority.
The refund application filed by the appellant was rejected under the ground of limitation, as per the provisions of Section 11B ibid - Appeal dismissed - decided against appellant.
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2020 (10) TMI 153 - CESTAT NEW DELHI
CENVAT Credit - input services or not - residential accommodation for the housing of their staff as well as their officers, working in the factory - nexus with output service or not - HELD THAT:- This issue had come up before the Tribunal in the case of M/S ULTRATECH CEMENT LTD., (UNIT BIRLA WHITE) VERSUS CCE AND ST, JAIPUR –II [2018 (3) TMI 1371 - CESTAT NEW DELHI] wherein it was held that the assessee/appellant requires the residential colony for availability of the workers for manufacture of dutiable goods and, as such, security services is essential in order to maintain the residential/industrial colony of the appellant. Accordingly, I hold that the appellant is entitled to the Cenvat credit under dispute.
Appeal allowed - decided in favor of appellant.
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2020 (10) TMI 56 - CESTAT CHANDIGARH
Interest on Delayed Refund of CENVAT Credit - non payment of interest to the appellant after three months from the date of filing of original refund claim i.e. 19.09.2016 till its realisation - HELD THAT:- In this case, it is in fact on record that the adjudicating authority has sanctioned the refund claim under Section 11B of Central Excise Act, 1944 and the said part of the order has attained finality as the revenue had not challenged the said order before any appellate authority. In that circumstances, in the impugned order mere mentioning that the adjudicating authority has erroneously sanctioned refund claim under Section 11B of the Act shall not make the order of the adjudicating authority on better footing. The fact is on record that the adjudicating authority sanctioned refund claim under Section 11B of the act, therefore, provisions 11BB of Central Excise Act, 1944 are attracted to the facts of this case for entertaining the claim of interest - the appellant is entitled to claim interest on delayed refund.
From which date the appellant is entitled to claim interest on delayed refund? - HELD THAT:- It is a settled law of by the Hon’ble Apex Court in the case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [2011 (10) TMI 16 - SUPREME COURT] that assessee is entitled to claim interest on delayed refund after three months from the date of filing of refund claim before the authorities till its realization.
The appellant is entitled to claim interest after three months from the date of filing of refund on 19.09.2016 till its realization - Appeal allowed - decided in favor of appellant.
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2020 (10) TMI 55 - CESTAT CHANDIGARH
Time Limitation - CENVAT Credit - credit denied on the premise as per Notification No. 02/14-CE (N.T) dt. 20.01.2014, the appellant was not entitled to avail credit prior to the Notification No. 02/14 (N.T) dt. 20.01.2014 in terms of Notification No. 01/10-CE dt. 6.02.2010 - HELD THAT:- There is no provision in law for the appellant to file invoices before the department in time. In that circumstances, as the assessee was allowed credit by the adjudicating authority although the revenue has filed appeal against those orders before the Commissioner (Appeals). In that circumstances, when the adjudicating authorities are having a divergent views, the extended period of limitation is not invokable in the facts and circumstances of this case.
Admittedly, in the case in hand, the show cause notice has been issued by invoking extended period of limitation, therefore, the denial of credit is barred by limitation - Appeal allowed - decided in favor of appellant.
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2020 (10) TMI 1 - CESTAT CHANDIGARH
Valuation and classification of ambulances - body building on the duty paid chassis - the view of the Revenue is that the appellant has misclassified the ambulances and having merit classification under Tariff Item 87033392 of the CETA, 1985 - period December 2009 to September 2014 - HELD THAT:- Considering the fact that in the appellant’s own case for the earlier period M/S SITA SINGH & SONS P. LTD., M/S SML ISUZU LTD. VERSUS CCE, DELHI-IV [2016 (7) TMI 346 - CESTAT CHANDIGARH] where it was held that Primary test is that sitting capacity of the vehicle. Admittedly vehicle in question can carry more than 12 persons excluding the driver or 14 persons including the driver. Therefore, we hold that the vehicle in question is classifiable under heading 87.02 of CETA - It was also held that valuation to be made under Rule 10A of Central Excise (Valuation) Rules, 2000. Therefore, we hold that the appellants are liable to pay duty on the value arrived at under Rule 10A of the said rules.
Thus, the appellant is liable to pay duty as per Rule 10A and if any differential duty has been paid, the same is subject to verification - Vehicle in question is classifiable under Chapter heading No. 8702 of CETA, 1985 - appeal disposed off.
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2020 (9) TMI 1158 - MADRAS HIGH COURT
CENVAT Credit - capital goods which were not specified in the Rule 2(a)(A) of CENVAT Credit Rules, 2004 - Construction materials - Whether the Tribunal committed an error of law in not appreciating the Legislative Intent in insertion of “but shall not include cement, angles, channels, Centrally Twisted Deform bar (CTD) or Thermo Mechanically Treated bar (TMT) and other used for construction of factory shed buildings or laying foundation or making structures for support of capital goods” vide Not.No.16/2009-C.E (N.T) dated 7/7/2009 being clarificatory in view of already existing explanation 2 to Sec.2 (k) of CENVAT Credit Rules, 2004 and therefore, operates retrospectively?
HELD THAT:- The matter is no longer res integra and the learned Tribunal has rightly followed the decisions and held in favour of the Assessee - ollowing the three Hon'ble High Court decisions in the appellant's own case cited supra, and also maintaining this Tribunal's order in the case of Dalmia Cements (Bharath) Ltd. Vs CCE Trichy [2015 (8) TMI 1179 - CESTAT CHENNAI], holding that immovability is not a criteria for denial of Cenvat Credit, we hold that appellants are eligible for Cenvat Credit on the capital goods used in "Dry Process Cement Manufacturing Plant". Accordingly, the impugned order is set aside and the appeal is allowed."
There are no merit in the present Appeal and the same is liable to be dismissed.
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2020 (9) TMI 1157 - KERALA HIGH COURT
Maintainability of appeal - non-submission of mandatory 7.5% of the amount confirmed against him by the assessment order, for maintaining an appeal before the First Appellate Authority - non-deposit on account of financial distress - HELD THAT:- Inasmuch as the appeal preferred by the petitioner against the assessment order was numbered by the appellate authority, and was taken up for hearing in 2020, the appellate authority ought to have granted the petitioner an opportunity of paying the deposit amount before proceeding to reject the appeal on the ground of non-payment of predeposit. Had the appellate authority found that the appeal was not one that could be maintained in the absence of the pre-deposit, it ought not to have numbered the appeal and given an impression to the petitioner that he had filed a valid appeal against the assessment order.
The petitioner can be given a month's time to pay the pre-deposit amount required for maintaining the appeal before the 1st respondent - Petition is allowed by quashing Ext.P5 order and directing the petitioner to pay the required pre-deposit amount as per the statute within a month from the date of receipt of a copy of this judgment.
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2020 (9) TMI 987 - CESTAT MUMBAI
CENVAT Credit - Reverse charge Mechanism - service provider or not - manufacturer of goods having ‘nil’ tariff rate of duty - HELD THAT:- The issues involved in the present appeal were considered by the Tribunal and the appeals filed by the appellant were allowed by way of remand to the Commissioner (Appeals). Pursuant to the remand direction of the Tribunal, the Commissioner (Appeals) took-up de novo proceedings and passed the order dated 17.10.2018 in favour of the appellant, by granting the refund benefit.
Since, the appellant submits that the issue arising out of the present dispute is identical to the facts and the issues decided in the orders referred above, the present appeal should also be allowed by way of remand to the Commissioner (Appeals) for fresh decision on merits - Appeal allowed by way of remand.
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2020 (9) TMI 897 - CESTAT KOLKATA
Clandestine Removal - illicit production of plywood on the basis of consumption of resin - demand based only on presumption only without any corroborative evidences - case of appellant is that while issuing the demand, the consumption of resin has been calculated on average basis and not on the basis of thickness viz. resin consumption which was declared at the time of search proceedings - HELD THAT:- It is observed that no investigation has been undertaken by the Revenue towards procurement of additional raw materials clandestinely. No other corroborative documents have been produced. Investigations against the consignees have also not been done before raising demand on the allegation of clandestine clearance. The onus is definitely on the department to establish manufacture and clearance of such goods and also regarding the receipt of payment - In the absence of such investigation and evidence, the demand of duty cannot be sustained.
Penalty - HELD THAT:- Once the demand for duty payable is not sustained, there is no justification to impose penalty on the appellant firm as well as on the partner.
Appeal allowed - decided in favor of appellant.
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2020 (9) TMI 789 - GUJARAT HIGH COURT
Time limitation - Refund of CVD / Excise duty - case is yet to be decided even after 16 years lapsed - HELD THAT:- The impugned show cause notices are very interesting to read as it exhibits complete non-application of mind. The claim of the writ applicant put forward almost 16 years back is yet to be decided by the authority because, according to the respondents, the original record of the claim is not available.
We fail to understand that if the claim of the writ applicant could not be looked into and decided by the authority for want of necessary materials, then the authority could have taken an appropriate decision one way or the other for passing an appropriate order. We fail to understand what was the good ground for the department to issue three show cause notices.
The respondents are directed to decide the claim of the writ applicant for the refund of the CVD / Excise duty in the Form – R in accordance with law within a period of two months from the date of receipt of the writ of this order. If the department wants any documents for the purpose of looking into the claim, then the writ applicant shall furnish all such necessary and relevant documents at the earliest - application disposed off.
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2020 (9) TMI 788 - CESTAT AHMEDABAD
Rejection of Refund claim - time limitation - section 11 B of the Central Excise Act, 1944 - HELD THAT:- The appellants had two units, one in DTA unit and other is 100% EOU, refund claim have been filed by both the units. DTA have cleared the goods against CT-3 to their 100% EOU and have claimed refund. The 100% EOU has claimed refund for goods exported. Earlier in the proceedings the matters was remanded by tribunal - The appellants are of the view that both Appeal are within the limitation of one year. It is seen that the Appeal No. E/13076/2018 pertains to period October’ 12 to Dec.’12 and the refund claim was filed on 04.10.2013 - In appeal no. E/13077/2018 pertains to the period April’13 to June’13 and refund claim was filed on 09.04.14. In these circumstances it is seen that in both these cases the refund has been filed more or less within one year of limitation, the exact period of limitation would depend on the dates when the exports were made.
The appellants would be entitled to refund in respect of exports made from 4.10.12 onwards in case of Appeal No. E/13076/2018 and from 9.4.2013 onwards in case of Appeal No. E/13077/2018. The matter regarding these two appeals is remanded for determination and sanction of exact amount of refund admissible in above terms - As regards other six appeals the only issue is if the appellants are entitled to re-credit of Cenvat Credit reversed at the time of filing of these refund claims which were later rejected by revenue. It is obvious that the reversal of Cenvat Credit was for the purpose of claiming refund and in these circumstances that the appellants are not granted refund, the credit reversed becomes admissible for re-credit.
Appeal allowed in part.
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