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Central Excise - Case Laws
Showing 21 to 40 of 83 Records
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2022 (11) TMI 1041 - CESTAT MUMBAI
Levy of penalty imposed under Rule 15(2) of the Cenvat Credit Rules, 2004 - entire amount of inadmissible credit was deposited by them along with interest prior to issuance of show cause notice - existence of malafide intent or not - HELD THAT:- Undisputedly in the present case the entire amount was paid by the appellant prior to issuance of the show cause notice as has been recorded. As per para 25.1 of the impugned order, it is observed that the assessee/appellant has deposited an amount of Rs.76,88,567/- against the confirmed demand of Rs.73,56,672/- confirmed by the impugned order. This amount was apportioned by the Commissioner in the impugned order. They have also deposited the interest of Rs.12,13,947/-. All the amounts were deposited prior to issuance of show cause notice.
Appellant has already paid the credit even prior to the issuance of the show cause notice. In an issue which is just with regard to quantification of the cenvat credit reversal, no malafide intention can be attributed to the appellant - Commissioner has himself concluded that in the same situation the appellant was acting under a bonafide belief and no malafide intention could have been attributable to them for imposition of penalty under Section 11AC of the Central Excise Act. Then what the Commissioner has held in respect of these demands cannot be sustained.
There are no justification in imposition of penalty under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act - appeal allowed.
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2022 (11) TMI 1002 - CESTAT KOLKATA
CENVAT Credit - Furnace Oil - non-existence suppliers - fake firms - fake invoices - inadmissible duty paying documents - Rule 9(1)(a) of CENVAT Credit Rules, 2004 - alert notice No.01/2013 dated 30.07.2013 issued confirming that M/s. Sri Kamala Udyog, Rishra has no existence - whether the Appellant can be denied CENVAT Credit of Rs.92,660/- only on the basis of alert circular? - invocation of extended period of limitation.
HELD THAT:- In the present case, the Appellant was a bona fide purchaser of the goods for a price which included duty element on the basis of a valid certificate of registration issued to the manufacturer/supplier by the Superintendent of Central Excise supported with Cenvatable invoice. The Appellant has substantively taken reasonable steps to comply with the provisions of Rule 9(5) - The fact that the assessee made payments by cheque is held to be a proof of his bona fide. Further, the Revenue has failed to establish that the Appellant received any unlawful kickback for executing the alleged purchase.
The buyer can take only those steps which are within his control and can not be expected to verify the records of the supplier to check whether in fact he had paid duty on the goods supplied by him. The only reasonable steps which he can take is to ensure that the supplier is trust-worthy, as the inputs are in fact received and the documents, prima facie, appeared to be genuine - The Circular of the Central Board of Excise and Customs dated 15.12.2003 clarifying that CENVAT Credit should not be denied to a user manufacturer as long as bona fide nature of the consignee’s transaction is not doubted.
Hon’ble Allahabad High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE CUSTOMS & SERVICE TAX VERSUS M/S. JUHI ALLOYS LTD., ANIL KUMAR SHUKLA [2014 (1) TMI 1475 - ALLAHABAD HIGH COURT] held that the assessee has taken reasonable steps to ensure that the inputs in respect of which he has taken CENVAT Credit were goods on which appropriate duty of excise was paid. Once, it is demonstrated that reasonable steps had been taken which is a question of fact in each case it would be contrary to the Rule to cast impossible and impractical burden on the assessee.
Extended period of limitation - Show Cause Notice was issued on 27.01.2016 whereas the normal period expired on 08.09.2013 - suppression of facts or not - HELD THAT:- In the present case, the Department has undertaken Audit of the Books of Account for the period 2012-13 to 2014-15 on dated 28.05.2016 i.e., much after the issue of Demand-cum-Show Cause Notice. However, no adverse inference has been drawn against the CENVAT Credit availed. Thus there is no failure and/or willful suppression of any fact of the transaction by the Appellant, having entered and recorded the transaction in its books of accounts. Therefore, no longer period could be invoked - the Appellant have a strong case on limitation too and the Show Cause Notice is barred by limitation.
Existence of supplier M/s. Sri Kamala Udyog - HELD THAT:- Central Excise Registration granted to M/s. Sri Kamla Udyog is bonafidely issued by the departmental authorities. Invoice was issued to the appellant by M/s. Sri Kamla Udyog fulfilling all the requirements of Central Excise Rules - It is further submitted by the Appellant that on the date of the visit of the Central Excise officers, they had recovered 40.73 lakhs from both the dealer i.e. M/s.Sri Kamla Udyog and M/s. Bedanta Petro. Therefore, it further strengthens the Appellant’s contention that M/s. Sri Kamala Udyog existed on 30.07.2013 even.
Thus, the Appellant being a bonafide purchaser of goods for a price which included the duty element and payment made by cheque, having received the inputs at his premise and entered into the statutory records maintained by the Appellant demonstrating transportation of goods from Rishra Road, Hooghly, West Bengal to Chancha Industrial Estate, Baripada, Mayurbhanj, the Appellant has rightly availed CENVAT Credit with the required Cenvatable documents.
Appeal allowed - decided in favor of appellant.
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2022 (11) TMI 1001 - CESTAT NEW DELHI
Reversal of CENVAT Credit - removal of inputs as such - provision for slow/non-moving inventory made - whether the provisions of Rule 3(5)(B) of CCR, 2004 are attracted in case of making a general provision in the books of account for slow moving/non moving inventory, without reducing the value of such inventory?
HELD THAT:- The appellant have only created a general provision for slow/non-moving inventory and have admittedly not written of the inventory from the inventory or the asset account. In actuality, such provision have been made by appropriation in the profit and loss account, without writing of any amount/value from the asset/inventory account - Rule 3(5B) of CCR is attracted only when the value of the asset and/or inventory is written off fully or partially or wherein any specific provision to write off a fully or partially has been made in the books of account - In the facts of the present case, the appellant have made a general provision, which is not attributable to any particular asset/inventory.
Admittedly, revenue have not been able to identify the details of inventory or asset, for which the general provision has been made. It is further evident that the appellant have demonstrated that such provision has been made year to year by way of increasing or reducing the provision, depending on the usage of inventory as required.
The impugned order is set aside - The ground of limitation raised is left open - appeal allowed.
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2022 (11) TMI 1000 - CESTAT MUMBAI
Levy of Equivalent penalty u/s 11AC - entire duty amount and interest thereon has been paid by the appellant prior to issuance of any show cause notice(by own or by being pointed out) - HELD THAT:- Admittedly and undisputedly the entire duty amount and interest thereon has been paid by the appellant prior to issuance of any show cause notice either on their own ascertainment or on being pointed out by the revenue during the course of audit.
In the case where the appellant has paid the entire amount of duty due along with the interest thereon, the central excise officer could not have proceeded to any notice in respect of the payment so made demanding the duty so paid.
Appeal allowed - decided in favor of appellant.
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2022 (11) TMI 946 - CESTAT AHMEDABAD
Levy of penalty u/r 26 of Central Excise Rules, 2002 - fraudulent passing of cenvat Credit by the appellant to Shree Balaji Castings - demand based on confessional statements of the witnesses - HELD THAT:- As regard the invoice issued by the appellant the statements were recorded from Shri. Subhash Chaudhary, Authorized Representative of Shree Balaji Castings and also of Shri. Anshu Agrawal, Partner of Shree Balaji Castings. It is also observed that statement of Shri. Vijay Khurana of M/s Impex World also recorded.
Shri Subhash Chaudhary and Shri. Anshu Agrawal clearly stated that they have received the invoice of M/s Impex world whereas they had not received the goods. It is also observed that details mentioned in the invoices were not capable of transporting the goods for which the cenvat credit was passed on. Therefore, from the discussion and finding which is based on the confessional statements of the witnesses, it is clearly established that the appellant has facilitated by only issuing the invoice without supplying the goods for passing of the fraudulent cenvat credit of Rs 3,93,715/-. Therefore, the appellant was rightly liable for penalty under Rule 26.
However, looking to the amount of cenvat credit passed on by the appellant the penalty of 2 Lacs appears to be very harsh - the penalty is reduced from Rs 2 Lacs to Rs. 1 Lac.
Appeal allowed in part.
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2022 (11) TMI 945 - CESTAT NEW DELHI
Demand of Excise Duty - allegation of incorrect availment of the exemption Notification of 27.02.2010 - Galvanized Structure cleared by the appellant to solar power generating companies - whether mounting structures cleared by the appellant do not fall under any of the category mentioned in the Notification dated 27.02.2010? - levy of penalty - HELD THAT:- The bare perusal of these Notifications clarifies that it exhaustively covers all items which are required for the initial set up of a solar power generation project. The goods manufactured and cleared by appellant is admittedly module mounting structure for solar panels. No doubt, this word specifically is not mentioned in the Notification, but from the submissions of the appellants and the data provided about the solar roof top system, it is observed that these structures are meant to hold the power generating solar panels at a particular angle. This angle is important to ensure that for a maximum time in a day the sun rays are perpendicular to these panels. In absence of these structures, the solar panels would be laid on the ground that is at Zero Degree angle which will give the least output as the sunrays shall be perpendicular to the solar panel only at one point of time during the entire day i.e. at 12 P.M. Since viability of power plant depends upon the power output and the output directly depends on the angle at which the structure holds the panel, hence, these structures are the integral component of the solar power generation plant.
The solar mounting structures are covered under Notification No.15/2010 dated 27.02.2010 as amended vide Notification No.26/2012 dated 08.05.2012 - the said Notification is a conditional notification. One of the important condition is that an officer not below the rank of Secretary to the Government of India in the Ministry of New and Renewable Energy recommends the grant of this exemption indicating the quantity, description and specification thereof and certifies that the goods are required for initial setting up of a solar power generation project or the facility. The said Certificate (MNRE Certificate) was provided by the appellant to the Department even prior making the impugned clearances.
As per the impugned Notification, the duty liability, if any, shall be on the promoter and not on the manufacturer. It is apparent from the amended Notification No.26/2012 dated 08.05.2012 as reproduced above, that in case of non-compliance of condition under the Notification, it is the project developer who shall be liable to pay the duty which was not paid on account of exemption at the time of clearance and that too only in case when the project developer fails to use the goods for solar power project - Commissioner (Appeals) has wrongly confirmed the duty demand upon appellant as manufacturer, for such goods which are exempted from duty.
Levy of penalty - HELD THAT:- It is observed that penalty has been confirmed under Section11 AC of Central Excise Act, 1944. Penalty under the said section can be levied if and only if there is an intent to evade the payment of duty. In the present case, it is apparent that appellant had intimated the Assistant Commissioner regarding the clearance of impugned excisable goods without payment of duty of the goods being the components required for solar power project eligible for exemption under Notification. The intimation was sent vide letter dated 31.12.2015 i.e. even prior the clearance of the goods. The question of evasion of duty does not at all arises that too with the malafide intent. Even penalty has wrongly been imposed by Commissioner (Appeals) on the appellants.
Thus, it is held that Commissioner (Appeals) has failed to appreciate the settled position of law with respect to the issue involved. Several decisions of this Tribunal and even by the Department with respect to identical issue despite being quoted in the order have wrongly been differentiated - We are of the firm opinion that Commissioner (Appeals) has committed an indiscipline as far as judicial protocol is concerned.
Appeal allowed.
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2022 (11) TMI 925 - CESTAT DELHI
Classification of goods - plastic Tape & strips - Woven Fabrics & Woven Sacks - FIBC (flexible intermediate bulk carriers) - HDPE/PP/LDPE sacks - Bags and warp knit fabrics - whether merits classification under Chapter Heading No’s 54041990, 54072090, 63053300, 630533200 and 60053300 respectively or merit classification under Chapter Heading No. 39201099, 39269099, 39232100/39232990 as sought by DGCEI?
HELD THAT:- The Commissioner has held that there are no hesitation in holding that the products manufactured by the Noticee deserve to be classified under Chapter Heading 54, 63 and 60.
It is not disputed by the learned Authorized Representative appearing for the Department that the issue raised before the Commissioner in the present matter was the issue considered in the two orders passed by the Commissioner (Appeals), which orders have been accepted by the Department.
There is no error in the order passed by the Commissioner. The appeal is, accordingly, dismissed.
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2022 (11) TMI 924 - CESTAT AHMEDABAD
Levy of Excise duty - Polycarbonate Containers - Goods returned for repairs due to quality issues - goods were cleared after repairs - Rule 173H of CER - whether the goods were exempt from payment of duty under Sr. No.57 of Notification No.4/97-CE dated 1-3-1997? - Clandestine removal or not - HELD THAT:- As is evident from the record, up to February 1999 AIL was clearing the Polycarbonate Bottles under the belief that the same were exempt from duty and duly reflecting such duty-free clearances in the RT-12 Returns. There could therefore be no motive or reason for AIL to wrongly declare freshly manufactured Bottles as repaired Bottles under Rule 173H.
Upon perusal of records, it is clear that on receipt back of the Bottles earlier cleared, the AIL had duly filed with the Excise department, intimation of receipt of the goods in Form Annexure A; the said Forms Annexure A were duly received by the department as is evident from Received Stamp/ signature of the Inspector on the said Forms Annexure A and that the fact that such Forms in Annexure A were duly filed with the department; that after receipt of the duty paid goods in the factory for repairs and after giving intimation thereof to the department, particulars of the same were duly recorded in Form V Register - The said statutory records/ documents viz. Forms Annexure A bearing Received Stamp/ signature of the Inspector, Form V Register, Forms Annexure C bearing receipt stamp/ signature of the Inspector and Invoices clearly establish the receipt of the goods cleared earlier, for the purpose of repairs, and the removal after carrying out of repairs. That the show cause notice has not disputed the genuineness of the aforesaid documents/ records; no statement has been recorded of the central excise officers who had acknowledged the said intimations and thus in the face of the said statutory documents/ records, the case of the department that no goods were received under Rule 173H for repairs and that what was cleared as repaired goods were in fact freshly manufactured goods cannot be sustained.
That the Commissioner’s finding that rejection of Bottles was without any reasonable ground or that the nature of the defects were such as required remaking of the Bottles cannot be appreciated without there being any evidence in support thereof.
Clandestine removal or not - HELD THAT:- The department has not produced any evidence to show procurement of excess quantity of raw materials required to manufacture the quantity of Bottles which the department alleges was not return of repaired goods but freshly manufactured goods. It is settled law that in the absence of evidence of purchase of raw materials to manufacture the quantity of finished goods alleged to be clandestinely cleared, no case for clandestine removal can be said to have been made out.
Eligibility to exemption under serial No.69 of Notification No.5/98-CE dated 2-6-1998 - HELD THAT:- Serial No.69 of Notification No.5/98-CE dated 2-6-1998 grants exemption to All goods of headings 39.23, 39.24 and 39.26 except goods of Polyurathanes, insulated ware and certain bags and sacks and fabrics. The goods in the present case are Polycarbonate Bottles of heading 39.23 and they are not hit by the said three exceptions. The said exemption is subject to condition No.10 which is duly fulfilled in the present case. The said condition 10 requires that credit of duty paid on the products mentioned in column 2 of the Notification or on any other product manufactured in the same factory should not have been availed. That there is no dispute to the fact that Appellant-AIL have not availed credit of the duty paid on the Bottles or of the duty paid on any other product manufactured in their factory. The Commissioner erred in proceeding on the basis that since AIL had availed Modvat Credit of the duty paid on the inputs used in the manufacture of another product viz. Weighing Scale manufactured in the same factory, Condition No.10 was not satisfied - the goods were otherwise also entitled to exemption from duty under serial no. 69 of the said notification no. 5/98-CE dated 2-6-1998.
The demand for duty of Rs.49,039/- is confirmed on 490 Bottles received under Rule 173H on the ground that the same were cleared after a period of six months from the date of receipt of the rejected goods under Rule 173H is also untenable. That there is no such stipulation of 6 months in Rule 173H. It is not open to the department to read into the statutory provision of Rule 173H, a limitation period which is not prescribed in the Rule. The Commissioner erred in relying on a trade notice which stipulated the said limitation period of 6 months. When no limitation period was stipulated in Rule 173H, no such limitation period can be introduced in the statutory Rule 173H by means of a Trade Notice which has no statutory force. Even otherwise since in view of above there was no manufacture of fresh goods there cannot be a duty demand merely for reason of clearance after 6 months.
Since no duty was payable on the said goods and since the said goods are not liable to confiscation, the imposition of fine and penalties on appellants are liable to be set aside - confiscation of land, building, plant and machinery and in imposition of redemption fine, since the duty demand itself is unsustainable in law, the said order of confiscation and fine is liable to be set aside.
Appeal allowed.
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2022 (11) TMI 923 - CESTAT MUMBAI
Refund claim - inadvertent reversal of CENVAT Credit under rule 6(3A) of CENVAT Credit Rules, 2004 - liquefied petroleum gas (LPG) - exempt goods or not - April 2010 and March 2011 - HELD THAT:- The appellant is a manufacturer of excisable goods and had availed credit under CENVAT Credit Rules, 2004 on eligible ‘inputs’ used in the manufacture of excisable goods but, under the impression that ‘liquefied petroleum gas (LPG)’, exempted by notification no. 4/2006-Central Excise Act, 1944 dated 1st March 2006 when cleared for use under the ‘public distribution system (PDS)’ were ‘exempted goods’ within the meaning of rule 2(d) of CENVAT Credit Rules, 2004, reversed such proportion and also excluded it for the computation prescribed in rule 6(3A) of CENVAT Credit Rules, 2004.
The case has been decided in appellant own case in THE PRINCIPAL COMMISSIONER, CENTRAL GST AND CENTRAL EXCISE VERSUS M/S. RELIANCE INDUSTRIES LTD. [2022 (5) TMI 650 - GUJARAT HIGH COURT] where the Hon’ble High Court of Gujarat had considered the very same decisions for the approval accorded to that of the Tribunal and held that This Court, held that since the assessee could not have manufactured gelatin (dutiable final product) using a lesser quantity of hydrochloric acid, Rules 6(1) and 6(2) of the CCR would not come into play.
In these circumstances, the principle stands established that rule 6 of CENVAT Credit Rules, 2004 is inoperable ab initio in such clearances - demand set aside - appeal allowed - decided in favor of appellant.
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2022 (11) TMI 922 - CESTAT AHMEDABAD
CENVAT Credit - input services - Outward GTA Services - sale of goods on FOR basis - non-submission of documents showing the sale of goods on FOR basis - HELD THAT:- This Tribunal in the appellant’s own case BANCO PRODUCTS LTD VERSUS C.C.E. & S.T. -VADODARA-I [2021 (7) TMI 662 - CESTAT AHMEDABAD] has decided that if the sale is on FOR basis the appellant is entitled for cenvat credit on outward GTA - thus, it is clear that the sale is on FOR basis and the entire risk or loss of damages and the freight charges were borne by the appellant, Therefore, it is a clear case of FOR sale. Accordingly, the facts of this case and the case decided by the Tribunal in the appellants own case are identical.
Appeal allowed - decided in favor of appellant.
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2022 (11) TMI 919 - CESTAT MUMBAI
CENVAT Credit - waste - exempt goods or not - zinc dross, zinc dust and flux skimming - applicability of Rule 6 of CCR - HELD THAT:- Both the authorities below while upholding the demand raised, have relied upon the amendment made in Rule 6 ibid with effect from 1.3.2015 and came to the conclusion that after the aforesaid amendment w.e.f. 1.3.2015 zinc dross/flux/skimmings cleared by the appellant are covered by the provisions of Rule 6 ibid.
The issue involved herein is no more res integra in view of the decision of the co-ordinate Bench (Chennai Bench) of the Tribunal in Appellant’s own case M/S. APL APOLLO TUBES LTD. (UNIT-II) VERSUS COMMISSIONER OF GST & CENTRAL EXCISE [2019 (7) TMI 733 - CESTAT CHENNAI] in which the Tribunal while dealing with the aforesaid amendment in Rule 6 ibid allowed the Appeal filed by the appellant and held that when the zinc scrap, a waste arising out of process of manufacture of finished goods, is not the goods manufactured by the appellant, the same cannot be considered as exempted goods manufactured by them - In yet another case similar view has been taken by the Bangalore Bench of the Tribunal in SHRI LAKSHMI METAL UDYOG LTD VERSUS COMMISSIONER OF CENTRAL TAX, BANGALURU SOUTH COMMISSIONERATE [2019 (8) TMI 420 - CESTAT BANGALORE].
In view of the series of decisions of different Benches of the Tribunal deciding the issue in favour of the assessee, even after considering the amendment made in Rule 6 ibid, the impugned order is accordingly set aside - appeal allowed.
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2022 (11) TMI 860 - MADRAS HIGH COURT
Seeking refund of amount paid under threat or duress in pursuance of an investigation - authority to receive the payment when no ascertainment of the duties has been made by the Central Excise Officer - HELD THAT:- It is no doubt true that the scope of interference to a show-cause notice by a writ Court exercising its power under Article 226 of the Constitution of India, is very limited, barring few exceptions, like lack of jurisdiction or abuse of process of law, etc.
In the instant case, there is a major flaw, which dispossess the jurisdiction of the respondent in proceeding further with the show-cause notice - The Bench had further held that in order to invoke sub-section 3 of Section 11(A), the Excise Officer should form an opinion and that the respondents have issued a show-cause notice after the order of the learned Single Judge, which is not in terms of Section 11(A)(3) and therefore, the payment of Rs.7.53 Crores made by the appellant cannot be said to be in terms of 11(A)(1)(b) of the Central Excise Act. With these observations, the Bench had allowed the writ appeal and 'set aside' the order of the learned Single Judge.
Though the original issuance of the show-cause notice may be in terms of the directions of the writ Court, any further contemplation of proceeding with the show-cause notice, would be without any authority, in view of the subsequent order passed. Thus, the consequential notice could be termed to be without any jurisdiction and would amount to an abuse of the process of law, as held by the Hon'ble Supreme Court in Vicco Laboratories's case(2007 (11) TMI 21 - SUPREME COURT). Hence, the appellant would be entitled to succeed.
The impugned show-cause notice is quashed - appeal allowed.
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2022 (11) TMI 859 - CESTAT NEW DELHI
Refund of amount of interest in addition to amount of duty estimated under SVLDR Scheme - duty liability or not - refund rejected in terms of Section 124 (2) of the Finance Act, 2019 - HELD THAT:- A bare perusal makes it clear that provision is not talking about tax dues only as defined under section 123 of the Finance Act, 2019 to be deducted while estimating duty amount to be deposited. But it is talking about any such amount which has already been deposited by the assessee which includes definitely the amount paid as interest - the impugned amount was mandatorily to be deducted from the amount of duty calculated to arrive at estimated amount payable. As apparent from the SVLDR Scheme Form No.3, admittedly the amount of impugned refund has not been deducted while calculating the estimated amount payable by the appellant. It is well settled principle well enshrined under Constitution of India itself Article 362 that no tax can be collected without validity of law. Since the appellant has paid the entire estimated amount payable amount of Rs.17,38,023/- becomes such a deposit with the department for which the Department of Revenue had not authority to retain.
The amount payable by the declarant has to be calculated in terms of Section 124(2) i.e. by making a deduction of any amount deposited at any stage prior. From the entire discussion, it becomes abundantly clear that amount in question of Rs.17,38,023/- was to be deducted till the stage of SVLDRS Form No. 2 but was not deducted even at the stage of SVLDRS Form No. 3. Hence, the said amount cannot be covered under proviso to Section 124(2). Thus the said provision is held to have wrongly been applied while rejecting the impugned refund. Similarly, any amount paid under section 130 of Finance Act, 2019 is the amount towards the tax dues as defined under section 123 of the Finance Act, 2019. Hence, it is held that same section 130 has also been wrongly invoked while rejecting the impugned refund.
The amount in question is eligible for refund on merits as well as on account of limitation - Appeal allowed - decided in favor of appellant.
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2022 (11) TMI 858 - CESTAT KOLKATA
Clandestine Removal - reliance on private records - 1964.970 MT of C.I. Mould - existence of corroborative evidences or not - burden to prove - non-compliance with Section 9D of the Central Excise Act, 1944 - HELD THAT:- In the course of the search operation, no parallel invoices or challans were found. All the invoice books found in the search operation were found to be unused. It is held in the impugned Order that the said invoices were intended to be used - the six statements of three persons Sri Pitabas Chhotray [dated 23-03-2011 & 20-01-2012], Sri Anirudha Sutar [dated 23-03-2011 &21-09-2011] and Sri Ajay Kumar Das [dated 23-03-2011 & 19-09- 2011] are not examined and cross examined by the adjudicating authority, hence, by operation of Section 9D of the Central Excise Act, 1944, said six statements have become irrelevant piece of material, and therefore, have to be eschewed from evidence.
In the instant case the entire case is based on the private records seized from the residence of the employee Shri Anirudha Sutar and office of the Appellant. There is considerable force in the contention of the Appellant that the private records relied upon by the Revenue cannot be a basis to uphold the serious charge of clandestine clearance. It is settled legal position that charge of clandestine clearance is a serious charge and the onus to prove the same is on the Revenue by adducing concrete and cogent evidence. In the absence of corroborative evidence, the issue in the instant case i.e. “the charge of clandestine clearance” cannot be labeled against the assessee.
The allegation of clandestine manufacture and removal of finished goods by the Appellant made in the Show Cause Notice, is merely on assumption and presumption, without sufficient material evidence corroborating the said allegations - impugned order is set aside - penalty imposed under Rule 26 of the Central Excise Rules, 2002 on Shri Pitabhas Chhotray, Director of the Appellant Company is also set aside - appeal allowed.
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2022 (11) TMI 857 - CESTAT AHMEDABAD
Utilization of carried forward CENVAT Credit - case of the department is that the credit which was carried forward should be lapsed and the same could not have been utilized for the payment of duty - transfer of unutilized credit from one unit to another - HELD THAT:- Reliance placed in the case of M/S MOHIT INDUSTRIES LTD VERSUS COMMISSIONERS OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX-SURAT-II (APPEAL) [2015 (10) TMI 1652 - CESTAT AHMEDABAD] where it was held that The appellant in the grounds of appeal stated before the Commissioner (Appeals) they have maintained records separately against the exempted as well as dutiable finished goods. This fact was not seriously disputed by the Commissioner (Appeals).
Thus, it has been settled that the appellant is entitled to utilize the credit which was carried forward as on 09.07.2004 and it was also settled that the transfer of credit from the silvassa unit to surat unit is correct and legal - since both the issue have been settled in favour of the appellant, the demand in the present impugned orders shall not sustain.
Appeal allowed.
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2022 (11) TMI 796 - DELHI HIGH COURT
Seeking recall of the order - applicability of monetary limit on issues related to refund - appeal closed on the ground that the tax effect was below the threshold limit prescribed in the instruction dated 22.08.2019 issued by the Central Board of Indirect Taxes and Customs - HELD THAT:- The Board, in its communication dated 19.10.2022 has indicated, that an SLP should not be filed, having regard to the monetary limit, keeping the question of law open in terms of Section 35R of the Central Excise Act, 1944.
Since the Board has declined to file an SLP, surely, this application for recall cannot lie - we are not inclined to entertain the recall application.
Application dismissed.
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2022 (11) TMI 795 - MADRAS HIGH COURT
Restoration of appeal - non-compliance of the pre-deposit of duty within the period stipulated by the Tribunal - HELD THAT:- There is no dispute with regard to the facts of this case and hence, it will be more appropriate to directly go into the issue that is involved in these appeals. The appeals filed by the appellant against the order passed by the Commissioner of Central Excise (Appeals) Madurai, before the Tribunal was accompanied by an application seeking for dispensing with the predeposit of the duty amount - Admittedly, the condition imposed by the Tribunal was not complied with and hence, a final order was passed by the Tribunal on 09.08.2007 dismissing the appeals.
The Tribunal is a creature of the Statute. Hence, the Tribunal can act only in exercise of such power and jurisdiction as is conferred under the Central Excise Act. On carefully going through the Act and Rules, there are no specific power conferred on the Tribunal to restore the appeals which has been dismissed finally. The Tribunal became Functus officio once a final order has passed and there is no scope for restoring an appeal thereafter - there are no justification for the appellant to file a petition for restoration of appeals after the exorbitant delay of nearly 7 years. The amount that was directed to be deposited was not exorbitant and the total amount that is involved in all the three appeals put together did not even exceed Rs.7 lakhs. Hence, seeking for restoration of appeals after 7 years without any justification, only calls for a dismissal.
Appeal dismissed.
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2022 (11) TMI 794 - MADRAS HIGH COURT
CENVAT Credit - benefit under Section 73 of the Finance Act 2010 without paying 24% interest per annum from the due date as contemplated under Section 73(2) of the Finance Act, 2010 - proviso to Rule 6(7) of the CENVAT Credit Rules 2004 - whether the subsequent amendment that was brought into force in the year 2010 and was given retrospective effect, can be put against the assessee? - HELD THAT:- There is no dispute with regard to the fact that the respondent had reversed the credit with interest by availing of the option provided under Section 73(2) of the Finance Act, 2010, on 01.08.2007, even before the issuance of show cause notice.
Reliance can be placed in the case of COMMISSIONER OF CENTRAL EXCISE, CHENNAI-II VERSUS ICMC CORPORATION LTD. [2014 (1) TMI 1646 - MADRAS HIGH COURT] where it was held that Considering the fact that the assessee had reversed the credit even prior to the amendment and the order of the Tribunal is in fact no different from what is contemplated under the Finance Act, 2010, we do not find anything survives further for this Court to consider the merits of the case pleaded by the Revenue.
There is no manifest error in the final order passed by the Tribunal and the substantial question of law raised in this appeal is answered accordingly.
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2022 (11) TMI 793 - CESTAT KOLKATA
Reversal of CENVAT Credit - credit attributable to the inputs contained in waste and scraps, which have not been received from the job-worker - shortages in quantity of processed inputs received back by the Appellant - Rule 4(5)(a) of the Cenvat Credit Rules, 2004 - HELD THAT:- The duty is being demanded by treating them as a manufacturer of waste and scrap, which is factually incorrect. The present provisions of Rule 4(5)(a), when compared with erstwhile Rule 57F(4) of Central Excise Rules, 1944, makes a clear distinction, inasmuch as the said Rule nowhere requires the return of waste and scrap generated at the job worker’s end.
The issue stands settled by the Tribunal’s decision in the case of ROCKET ENGINEERING CORPORATION LTD. VERSUS COMMISSIONER OF C. EX., PUNE-II [2005 (6) TMI 184 - CESTAT, MUMBAI]. By relying upon the Tribunal’s decision in the case of INTERNATIONAL TOBACCO CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, GHAZIABAD [2003 (10) TMI 171 - CESTAT, NEW DELHI], it was held that when no process of manufacture of waste and scrap has taken place at the end of principal manufacturer, duty cannot be demanded from the principal manufacturer.
The waste and scrap are not manufactured goods whether they are generated at the premises of the principal manufacturer or at the premises of job-worker and accordingly, the legislature have consciously not made any provisions for reversal of any credit taken on duty paid inputs in case of clearance of waste and scrap and/or, there non-return from the job worker’s premises under the Central Excise Rules, 2002 read with Cenvat Credit Rules, 2002/2004.
The demand of duty, interest and imposition of penalty upon the Appellant is set aside by holding that the Appellant was under no obligation to pay duty on waste and scrap used at the job worker’s end - appeal allowed.
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2022 (11) TMI 792 - CESTAT AHMEDABAD
CENVAT Credit - purchase against advance authorization - exemption under para 4.1 of FTP 2009-14 or not - supplier has discharged the duty duly - duty payment on the part of the supplier can be disputed at the end of the recipient of the input, or not? - HELD THAT:- There is no dispute on the fact that the supplier M/s. Reliance Industries Ltd. has discharged the duty as per law. The inputs were received by the appellant for use in the manufacture of final product therefore, the sufficient compliance of the provision of Cenvat Credit Rules, 2004 stood made. It is settled law that at the end of the service recipient of input, cenvat credit cannot be disputed on the ground that whether the said input is liable to duty or otherwise at the end of the supplier. Once the supplier has paid the duty whether it is payable or otherwise, the said duty is clearly admissible as cenvat credit.
The assessment of duty payment on the part of the supplier cannot be disputed at the end of the recipient of the input therefore, there is no reason to deny the cenvat credit once the duty paid inputs were received by the appellant - reliance can be placed in the case of COMMR. OF C. EX. & S.T., JAIPUR-I VERSUS DCM SHRIRAM CONSOLIDATED PVT. LTD. [2017 (8) TMI 886 - CESTAT NEW DELHI].
In the present case duty was paid by M/s. Reliance Industries Ltd. against invalidation of advance authorisation, the cenvat credit to the appellant is admissible - Demand not sustainable - penalty set aside - appeal allowed.
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