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Central Excise - Case Laws
Showing 41 to 60 of 83 Records
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2022 (11) TMI 791 - CESTAT NEW DELHI
Refund of excise duty - pre and post GST era - duty paid on clearance of goods prior to 1.7.2017 and such goods had been returned by the buyer as defective after 1.7.2017, within a period of six months - HELD THAT:- In the facts and circumstances of the present case, there is no dispute with regard to the identity of the goods cleared and the same goods have been returned back. Further, there is no dispute as to the duty paid nature of the goods under the provisions of the Central Excise Act. Further, it is found that the goods have been returned by a Public Sector entity, which is not registered under the provisions of the CGST Act.
The Adjudicating Authority is directed to grant refund of the said amount of Rs.35,04,322/- with interest under Section 11 BB of the Central Excise Act, within a period of 45 days from the date of receipt of copy of this order - appeal allowed.
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2022 (11) TMI 748 - CESTAT AHMEDABAD
CENVAT Credit - input services - outward GTA services used for transportation of their finished goods from their factory to customer’s premises - place of removal - period from October 2015 to September 2016 - HELD THAT:- In the present matter, appellant has come forward with the documents /details i.e copy of purchase order, copies of invoices, copy of agreements, copy consignment notes, copy of certificate of chartered accountant.
In view of the facts of the case, it is found that the impugned order is not in accordance with law. The Commissioner (Appeals) did not deal properly with these documents/ details and facts submitted by the Appellant before him in the impugned order.
The case needs to be reconsidered by the Commissioner (Appeals) to decide the appeal a fresh after considering the said documents and vital facts - Appeal allowed by way of remand.
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2022 (11) TMI 747 - CESTAT AHMEDABAD
CENVAT Credit - valid documents or not - photocopy of invoices issued by various service providers to the United Phosphorus Limited, Mumbai, (UPL) - transfer of service tax credit by UPL, Mumbai, as an ISD to the Appellant without obtaining registration - Rule 9 of the Cenvat Credit Rules, 2004 - HELD THAT:- In the present case the Cenvat Credit was denied on two count:-1) That the appellant have availed the Cenvat Credit on the strength of photocopy of invoices of various service providers which is in favour of appellant’s Head Office. Secondly, the Head Office was not registered as an ISD, therefore the Head Office could not have distributed credit under a cover of invoice in terms of Rule 4A (1)(i) of the Rules.
Whether the appellant has correctly availed the credit on the strength of photocopy? - credit was denied only on the presumption that there is a possibility of availing the credit by other unit of the appellant - HELD THAT:- Firstly, there is no charge in the show cause notice to these effects. Secondly, without any evidence such serious allegation cannot be accepted. It is further observed that in respect to photocopy of invoices, the same is not relevant for allowing the credit to the appellant, as the Head Office has distributed the credit to the appellant unit. In this case if there is any objection to be raised, it should be by the Jurisdiction Officer of the Head Office which is not the case here - the appellant have taken credit in respect of the distributed input credit by the Head Office on the basis of a statement. Since, there is a large number of services and invoices involved, the same was in co-operated the statement, the statement contains all the details as required under Rule 4A, therefore, on the basis of such statement credit is admissible.
There is no dispute about the payment of Cenvat Credit on the input service received and credit thereof was distributed by the Head Office. It has not been established by the department that the credit which distributed on the invoices was distributed to more than one manufacturing unit of the appellant, as the same was neither a charge in the show cause notice nor evident in the impugned order - it is held that ISD registration is a procedural requirement, therefore, even if there is a lapse of non-obtaining the registration for some period, credit passed on by the Head Office cannot be denied to the appellant.
The appellant are entitled for the Cenvat Credit, hence, the impugned order denying the Cenvat Credit is set aside - Appeal allowed.
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2022 (11) TMI 746 - CESTAT MUMBAI
Rejection of refund claim - rejection on the ground of limitation provided under Notification No. 12/2013 dated 01.07.2013 as amended - rejection on the ground that the services were availed for the unregistered premises - HELD THAT:- The submissions made by the appellant to the effect that date of payment of advance amount is the date of payment of premium has not been considered by the authorities below inasmuch as no such finding to such extent has been recorded in this regard. Since the appellant, at this juncture, has submitted the working sheet mentioning that the refund application was filed within stipulated time of one year from the relevant date, the refund benefit should be available to the appellant - there are force in the submission of the appellant that the date of payment of premium is specifically to be examined by the original authority for ascertaining the fact regarding the time bar aspect as provided in the said notification for grant of the refund benefit.
The matter is remanded to the original authority for recording a fresh finding - appeal is allowed by way of remand.
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2022 (11) TMI 691 - CESTAT AHMEDABAD
Levy of Excise Duty - all types of scraps sold by the appellant value of which is reflecting in the balance sheet - appellant submits that the Show Cause Notice has demanded the Excise Duty despite the appellant clarified that they have not paid duty on the scrap which is other than manufacturing scrap and cenvateable scrap - HELD THAT:- The appellant while giving the information, as asked by the department vide their letter dated 06.03.2013, in their letter dated 11.03.2013 categorically stated that they have paid the excise duty on manufacturing scrap and cenvatable scrap, they also stated that on the general scrap which is neither manufacturing scrap nor cenvatable scrap, they have not paid the duty. As per this submission of the appellant the duty is clearly not payable. Moreover, the Show Cause Notice was baldly issued without carrying out any investigation that whether the appellant have availed the Cenvat Credit in respect to the scrap which were cleared without payment of duty and also the manufacturing scrap. In absence of any such investigation the allegation made in the Show Cause Notice is bald and without any support of any evidence.
It is clear that the appellant have cleared the scrap which is neither generated from the manufacturing nor generated from the cenvatable input or capital goods. Therefore, the same is clearly not liable to any duty.
The identical issue was raised in the appellant’s own case only for the different period wherein taking a consistent view it was held that scrap, other than manufacturing and non cenvatable is not liable to duty - reliance can be placed in the case of ALEMBIC GLASS INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., VADODARA-I [2006 (2) TMI 322 - CESTAT, MUMBAI] where it was held that Since the entities on which duties have been recovered are not emerging otherwise then skilful manipulation of raw materials, appellants by manufacture of medicaments, the levy of duly, as arrived at cannot be upheld.
Thus, in the facts of the present case, it is clear that the demand raised in the SCN is not sustainable - appeal allowed - decided in favor of appellant.
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2022 (11) TMI 690 - CESTAT CHENNAI
CENVAT Credit - fake documents or not - documents did not contain the registration number of the service provider and correct address of the appellant - input service or not - ineligible credit availed on the portion of money retained by the appellant.
Fake documents or not - denial on the ground that the invoices are addressed to the Mettur Plant-II and not to the address of the appellant at Cuddalore - HELD THAT:- Though it is alleged that the invoices are mentioned in the name of the Mettur Plant, the Department does not have a case that the services have been availed by the Mettur Plant. The appellant has submitted that the name of the unit was wrongly mentioned by the vendor. Taking note of this aspect, the denial of credit on this ground to the tune of Rs.958/- is allowed.
Denial of credit on the ground that the Service Tax registration number of the service provider is not mentioned in the invoices - HELD THAT:- When the registration number of the service provider is available for verification, the credit ought not to have been denied merely because it is not mentioned as a ‘part of the invoice’ when the same has been included later - the denial of credit on this ground cannot be justified.
CENVAT Credit - credit was availed on the debit notes issued by the Input Service Distributor - denial on the ground that the same is not a prescribed document as per Rule 9 of the CENVAT Credit Rules, 2004 - HELD THAT:- In case of any doubt, the Assistant Commissioner or Deputy Commissioner, as the case may be, can verify and call for further information. In the present case, the appellant has stated that the credit has been availed on the debit notes which have been issued by their Head Office, which has taken ISD registration. When there is no doubt with regard to the services availed and the tax paid, the credit ought not to have been denied - the credit is eligible.
CENVAT Credit - denial on the ground that the appellant had not furnished the necessary documents - HELD THAT:- The credit in respect of the services provided by M/s. SMK Construction, M/s. Madras Chemicals & Polymers, etc., has been denied alleging that the appellant has not produced the necessary documents in this regard. The total credit disallowed in this regard is to the tune of Rs. 43,739/- and Rs.91,926/- respectively. It is seen that with regard to the amount of Rs.43,739/-, the appellant had produced documents and it is noted by the Original Authority that these documents were addressed to the registered Head Office - the issue with respect to non-production of documents and documents issued in the name of the Head Office to the tune of Rs.43,739/- and Rs.91,926/- requires to be remanded back to the Original Authority for verification.
Helipad Repair and Maintenance services - credit has been availed by the appellant prior to 01.04.2011 - input services or not - HELD THAT:- During the said period, the definition of “input service” had a wide ambit as it included services in relation to business activities. It is seen that almost all the services would be covered during this period and for this reason, the denial of credit alleging that the said services do not have nexus with the manufacturing activity is erroneous. The credit is eligible.
Credit in respect of Banking Charges - Credit denied by the Department stating that these amounts incurred by the appellant are with regard to the reimbursement of travel expenses - HELD THAT:- The Banking Charges along with Service Tax were paid by the appellant on the amount that has been transacted through the bank. The credit on such Banking Charges is eligible and is, therefore, allowed.
It is noted that a major portion of the disallowance of credit is in respect of the input Service Tax credit with regard to retention of money by the appellant - the appellant has paid Service Tax on the entire consideration. Only ten per cent has been deducted from the consideration and this amount does not include the Service Tax element. For example, if the consideration paid is Rs.48,000/-, the appellant has paid 10% Service Tax plus applicable cesses [Rs.4,800/- + Rs.96/- + Rs.48/-] (invoice at page 53, Annexure-C to the Appeal Memorandum). The grand total including the consideration plus Service Tax is mentioned as Rs.52,944/-. The appellant has retained 10% i.e., Rs.4,800/- and not 10% of Rs.52,944/-. Thus, the entire consideration has suffered Service Tax even though 10% of the consideration has been retained by the appellant.
The credit in respect of all the services are eligible, except for those which have been denied on the allegation that documents have not been produced, to the tune of Rs.43,739/- and Rs.91,926/- which are remanded to the Original Authority. The impugned order is modified to the extent of setting aside the disallowance of credit on all the services, except those services in regard to the amounts of Rs.43,739/- and Rs.91,926/-.
Appeal allowed in part and part matter remanded.
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2022 (11) TMI 645 - DELHI HIGH COURT
Seeking revival of SCN - circular dated 26.05.2003 - HELD THAT:- Although, Ms Kavita Jha, in fairness, does not dispute that such a circular exists and the procedure encapsulated therein is in vogue, it was incumbent on the respondents to inform the petitioner/notice as to why the show cause notice was not being adjudicated.
The assessees need to arrange their affairs and prepare themselves for bearing the burden of the financial liability that may befall them - there is no explanation as to why, after January 2017, no steps were taken to adjudicate the subject show cause notice.
The matter needs examination - issue notice.
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2022 (11) TMI 644 - CESTAT NEW DELHI
Reversal of CENVAT Credit - Valuation of exempted goods - inputs/input services used in manufacture of the ammonia and to the extent that ammonia was used to further manufacture urea which was cleared under the exemption notification - HELD THAT:- Laws of taxation have to be strictly construed regardless of the consequences. It is true that by reckoning the value of urea which is heavily subsidized, the amount of ineligible Cenvat credit to be reversed is reduced substantially. If the value of the intermediate products viz. ammonia is reckoned the amount of ineligible Cenvat credit will be much higher. An illustration will make it clear. If the assessee had availed Cenvat credit of Rs. 1000/- and manufactured only ammonia and cleared it on payment of duty it can avail the entire Rs. 1000/- as Cenvat credit. On the other hand, if the assessee had converted the entire amount of ammonia into urea it would not have been eligible to any Cenvat credit because the urea is exempted.
While applying the formula under Rule 6(3A), the subsidized urea prices would result in the amount of ineligible Cenvat credit going down substantially to the extent sale 80%. Therefore, instead of Rs. 500/- being ineligible, the appellant will be ineligible to about Rs. 100/- as Cenvat credit as per the formula. The remaining Rs. 400/- which will logically be the credit on inputs/input services which have gone into the manufacture of ammonia which finally got converted into urea will still be available to the appellant and it can use this credit for clearing other dutiable goods. However, this inherent unfairness/distortion created by the formula given in Rule 6(3A) should make no difference. An intelligent asessee, who manufactures urea can, by selling a small percentage of the intermediate product ammonia as such on payment of duty avail Cenvat credit on all the inputs and reverse a small percentage of it only. Such a tax planning by the assessee is perfectly within the frame work of law.
The formula under Rule 6(3A) only requires the value of the exempted goods removed to be reckoned and not the value of the intermediate goods. The exempted good in this case is the urea. Its value is not in dispute. The 1% concessional rate of duty (without Cenvat credit) paid by the appellant is also on such value and not on the value without the subsidy. The value of urea does not change for calculation of Cenvat to be reversed under Rule 6(3A). Therefore, the appellant has correctly reversed proportionate amount of Cenvat credit reckoning the value of the urea removed instead of reckoning the intermediate product ammonia which has gone into the manufacture of such urea.
The impugned order cannot be sustained and needs to be set aside - Appeal allowed.
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2022 (11) TMI 643 - CESTAT NEW DELHI
Short payment of duty - SS Flats - SS patta/patti - SS Utensils sold to RSSL - related party transaction - April 2015 to October 2015 - HELD THAT:- As the demand is of Rs. 1,95,598/- only and considering the difficulties in checking the price at which each of the SS Utensils was sold by RSSL, we are of the considered opinion that remanding the matter the matter may not serve any purpose and the value can be fixed by the Tribunal exercising powers under rule 11 of the Valuation Rules.
The value of the SS Utensils cleared by the appellant be re-determined as 3.83% of the sale price and duty to be calculated accordingly - The order passed by the Commissioner (Appeals) in so far as it confirms the demand of duty on SS Patta is set aside and demand on SS Utensils is reduced from Rs. 1,95,598/- to Rs. 75,000/- - the penalty imposed on the appellant should be set aside.
Appeal allowed in part.
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2022 (11) TMI 632 - ALLAHABAD HIGH COURT
Clandestine removal - Sir Brand Gutkha and Pan Masala - requirement of corroboration from any other independent evidence of the retracted confessional statement - demand of duty based on the third party documents supported by corroborative statements, justified or not - entire evidence on record and statements of the witnesses and concerned persons, ignored - statements recorded under provisions of Section 14 of CE Act by the officers of the Department can be taken as proof of the statutory violations by the respondents or not - confiscation - redemption fine.
Whether any substantial question of law arises for consideration in this appeal so as to admit it for examination within the scope of sub-section (3) and (4) of Section 35-G? - HELD THAT:- There is no dispute with regard to the factual findings recorded by the CESTAT that all persons including the Authorized Signatory of the manufacturers in their cross-examination before the Adjudicating Authority had retracted from their statements recorded under Section 14, during investigation, with the categorical statements that their previous statements were recorded by the officers of the Central Excise Department under duress - The findings returned by the Adjudicating Authority that Sri Rajesh Agarwal in his various voluntary statements and acceptance had confirmed his active involvement in the tax evasion by management of raw materials and managing removal of clandestinely manufactured ‘Sir’ Brand Gutkha/ Pan Masala to various destinations, thus, suffers from apparent perversity.
On the basis of the said findings and in view of the statement of Sri Rajesh Agarwal, the Authorized Signatory of three manufactures in his cross-examination, it cannot be accepted that his statement recorded by the Central Excise Officers was voluntary. The question is not of admissibility of the statement recorded under Section 14. The admissibility of the evidence recorded by the investigating authority, when the persons making statements were examined as a witness before the Adjudicating Authority is not under question. The issue is about the weight of the evidence appreciated by the Adjudicating Authority - No presumption or assumption can be drawn to record any perversity in the findings of the CESTAT, the Appellate Tribunal, which has recorded that the appellants manufacturers are neither consignor or consignee for the alleged transportation of goods in the third party transporters records.
No question of law much less substantial question of law arises for consideration, in the facts and circumstances of the case, inasmuch as, no perversity can be seen in the decision of the CESTAT in setting aside the findings of the Adjudicating Authority based solely on the retracted confessional statements recorded during investigation under Section 14 of the Act by the officers of the Central Excise Department - Appeal dismissed.
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2022 (11) TMI 597 - CESTAT NEW DELHI
CENVAT Credit - CVD plus cess - import of raw materials, where duty and cess have been paid by utilizing the DEPB scrips - HELD THAT:- There is no disability in availing the credit, where CVD and Cess have been paid by utilizing DEPB scrips. Further, there is no dispute that the credit has been availed on the basis of bill of entry and certified copy of the same produced before the Range Authority.
The appellant have rightly availed the cenvat credit. Accordingly, the appeal is allowed.
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2022 (11) TMI 596 - CESTAT NEW DELHI
Remission of duty - incidence of fire and loss - case of negligence or not - Rule 21 of the Central Excise Rules, 2002 - HELD THAT:- The incidence of fire and the loss of goods due to fire are undisputed. Under the facts and circumstances the fire was caused due to sparks, which have come out from the transformer due to stormy weather condition. On such fire incidence the appellant had no control nor such incidence were avoidable on the part of the appellant. The appellant was manufacturing since 1992 at the said premises and this was the first incidence of fire, which has occurred. Further, as per the report of the Fire Department, no case of negligence has been made out against the appellant.
The loss has occurred including the loss of finished goods due to natural causes and/or by unavoidable fire accident and further the partially damaged goods were rendered unfit for human consumption being medicines, and were also unfit for marketing - the appellant is entitled to remission as provided under Rule 21 of the Central Excise Rules, 2002. Consequently the demand of duty of the matching amount is also set aside alongwith penalty.
Appeal allowed.
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2022 (11) TMI 595 - CESTAT MUMBAI
Classification of goods - Minute Maid Nimbu Fresh (MMNF) - to be classified under Chapter sub-heading 220290.20 of Central Excise Tariff Act, 1985 or under chapter sub-heading No 220210.20 of the Central Excise Tariff Act, 1985 - exemption under N/N. 3/2006-C.E. dated 01.03.2006 - HELD THAT:- The issue involved in the present case is covered by the decision of the Larger Bench in the case of M/S BRINDAVAN BEVERAGES PRIVATE LIMITED, KRANTI KUMAR CHANDRAKAR, M/S PEPSICO INDIA HOLDINGS PRIVATE LIMITED VERSUS COMMISSIONER CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, HAPUR AND BAREILLY [2019 (10) TMI 762 - CESTAT ALLAHABAD (LB)]. Taking note of the difference in the opinions, the Larger Bench held that the three products MMNF, Nimbu Masala Soda and Nimbooz would classify under Tariff Item No. 2202 90 20 as fruit juice based drinks.
Following the decision and the consensus arrived at by the Larger Bench, the appeals are allowed.
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2022 (11) TMI 560 - CESTAT AHMEDABAD
Interest for delay in sanction of refund of cenvat credit which was reversed in excess to the actual reversal - Rule 6(3) of CCR, 2004 and Section 11 BB of CEA - HELD THAT:- There is no dispute regarding sanction of refund as the appellant has been granted the refund of excess reversal of cenvat credit. The Learned Commissioner has denied the claim of interest on the ground that since the appellant were entitled to take the suo moto credit the refund is not governed by section 11 B. It is surprising to note that in one hand the department has undisputedly sanctioned the refund in cash obviously under section 11B then why the different treatment should be given for grant of interest which is consequential to refund under section 11 B. There is no dispute that there is a delay in sanctioning the refund against the application of refund filed by the appellant on 24.05.2016 and 21.07.2016 whereas the refund was granted on 05.11.2018.
It is settled law that in case of delay in sanctioning refund after 3 months of filing of application the assessee is entitled for the interest after 3 months from the date of application till the sanction of refund - the appellants are entitled for the interest in the refund claim sanctioned from the date after 3 months of filing the application for refund claim till the date of sanction.
Appeal allowed.
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2022 (11) TMI 497 - CESTAT AHMEDABAD
CENVAT Credit - input services - courier service particularly for the period after 2011 - denial of CENVAT credit particularly on the ground that after 2011 amendment in the definition of input service, the activity of business has been removed from the inclusion clause - HELD THAT:- It is clear that the tribunal in HALDYN GLASS LTD, ARTEK SURFIN CHEMICALS LTD, SUN PHARMACEUTICAL INDUSTRIES LTD, SUD CHEMIE INDIA PVT LTD, SHANKAR PACKAGING LTD, VIDEOCON INDUSTRIES LTD, ZYDEX INDUSTRIES, CLIMAX SYNTHETICS PVT LTD, TRANSPEK SILOX INDUSTRY LTD, COSMO FILMS LTD, PIRAMAL GLASS LTD, KAPS ENGINEERS, DYNAFLEX PVT LTD VERSUS C.C.E. & S.T. -VADODARA [2017 (8) TMI 1217 - CESTAT AHMEDABAD] has considered the issue after taking into account the 2011 amendment and came to the conclusion that the assesses are entitle for the cenvat credit on courier services.
The appellant are entitled for CENVAT credit on courier service - Appeal allowed - decided in favor of appellant.
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2022 (11) TMI 453 - CESTAT CHENNAI
Recovery of credit - credit has been denied on the ground that the appellant has not taken ISD Registration and that the credit availed on various other units were not distributed to the Ambattur Industrial Estate as required under Rule 7 of Cenvat Credit Rules, 2004 - credit also denied on banking charges on the ground that instead of availing credit on the vouchers issued by the bank, they have availed credit on debit advices in the nature of bank statements showing the bank charges.
Whether credits availed on bank charges and Chartered Accountant services are eligible or not? - appellant has not taken Input Service Distributor registration - HELD THAT:- The denial of credit on the ground that appellant has not taken Input Service Distributor registration in respect of Bank charges and Chartered Accountant services cannot sustain - The Hon’ble High Court of Gujarat in THE COMMISSIONER OF CENTRAL EXCISE, O/O THE COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX VERSUS M/S. PRICOL LTD. [2021 (2) TMI 495 - MADRAS HIGH COURT] has held that there is nothing in statutory rules to disentitle an unregistered input service distributor from availing cenvat credit and that non-taking registration is only a procedural error which is curable.
The Department does not dispute the collection of bank charges by the bank for the services provided by them. Merely because the credit is availed on bank advice / bank statement the credit cannot be denied unless there is discrepancy in these documents - the disallowance of credit alleging that appellant has availed credit on debit advices / bank statements is not legal and proper.
Credit in respect of Chartered Accountant services has been denied alleging that the bills are not issued in the of the appellant, but has been issued in the name of an individual and other units of the appellant - HELD THAT:- The credit availed on Chartered Accountant services are based on bills dated 14.10.2008, 03.11.2009, and 07.10.2010. The appellant has furnished these bills before the Tribunal. On perusal, it is seen that these bills are addressed to the appellant-company and not in the name of an individual. After mentioning the name of the company, the name of the Kartha Mr.Ashok Ramchand Bulchandani has also been mentioned. This will not make the bills issued in the name of an individual. Denial of credit alleging that these bills are issued in the name of individual and in the name of other units of the appellant is factually incorrect - the denial of credit on Chartered Accountant cannot be sustained.
The appeal is allowed.
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2022 (11) TMI 452 - CESTAT AHMEDABAD
Denial of refund of the PLA balance laying in their own account - Applicability of provisions of Section 11B to the refund of the balance amount lying in PLA account of the appellant - HELD THAT:- The issue involved is applicability of Section 11B of the Central Excise Act, 1994 for the refund of balance amount laying in the PLA account. The appellant have relied on the decision of Tribunal’s own case SUN PHARMACEUTICAL INDUSTRIES LTD VERSUS C.C.E. & S.T. -DAMAN [2022 (6) TMI 1176 - CESTAT AHMEDABAD] wherein it was held that in case of PLA balance, it is not deposited as a duty but it is deposited as advance towards the duty. The PLA Amount takes the color of excise duty only when it is utilized for payment of duty on clearance of excisable goods. The unspent balance of PLA is only advance not duty therefore, Section 11B is not applicable.
The appeal allowed.
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2022 (11) TMI 451 - CESTAT AHMEDABAD
Remission of Excise duty - main contention of the adjudicating authority in rejecting the remission application is that fire was avoidable and due to not taking proper care by the appellant, the fire took place, therefore fire incident is not due to unavoidable circumstances - HELD THAT:- The appellant have been regularly installing the firefighting equipment in their factory from 1987-2014. The fire took place in the factory on 07.01.2017. The contention of the adjudicating authority is that the appellant have not made any expenditure towards firefighting measures from 2014 onwards and that is the reason the fire has taken place. The said contention of the learned adjudicating authority cannot be agreed for the reason that once all the firefighting equipment have been installed in the factory i.e. upto January 2014, only in case of any need the firefighting equipment is required. Only because there is no expenditure in respect of firefighting measures after 2014, it cannot be said that the appellant have not equipped their factory with firefighting measures.
There is absolutely no adverse remark in any of the various reports made in respect of the incident of fire in the factory. Be it of Inspector of Police, Fire Brigades, Deputy Director, Industrial Health and Safety Industry, Nagarpalika and from various reports, it is clear that the fire incident has taken place due to short circuit. The short circuit is clearly beyond the control of anyone and it is general that in majority of cases fire takes place due to short circuit and the same cannot be predicted by anyone in advance - the appellant have taken abundant precaution as regard firefighting measure and there is no lapse on the part of the appellant to hold that the fire incident could have been avoided.
Valuation of goods - price for the purpose of insurance claim was enhanced from Rs. 139 per KG to Rs. 149.16 per KG - HELD THAT:- From the calculation, it is absolutely clear that this enhancement does not include the excise duty. The enhancement is only due to inclusion of various expenses such as marketing and selling expenses, therefore, it is beyond doubt that the appellant have not included the amount of Central Excise duty. Therefore, on this count also the remission of duty cannot be varied or denied.
The appellant is entitled for remission of duty in respect of final product lost or destroyed in fire incident. Needless to say that the appellant needs to reverse the cenvat credit in respect of the inputs, if any availed, contained in the final product in respect of which the remission is sought for - Appeal allowed.
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2022 (11) TMI 450 - CESTAT AHMEDABAD
Classification of goods - Folders for inserting certificates - Letters head/pads - Waste paper - Invitation card - Envelope - classifiable under Chapter heading 48 or under Chapter 49? - extended period of limitation - HELD THAT:- The two items, namely, Folders for inserting certificates and waste paper are being contested on merit by the appellant. In respect of other items, namely, letter head/ pages, invitation cards and envelopes, the appellants are contesting solely on limitation.
A perusal of Circular No. 1052/1/2017 dated 23.02.2017 shows that it specifically holds that inland letter cards which are printed would be classifiable under Chapter 49 whereas plain letter cards are classifiable under Chapter 48. Moreover, it is seen that note 12 and 14 of Chapter 48 clearly lay down that unless there is further printing or writing needed, the products where the printing is not merely incidental the said products would be classifiable under Chapter 49. The criteria being that all the printing or writing that is required to be done on the said cards is already done at the time of clearance and therefore, the same would be classifiable under Chapter 49. The same argument equally applies to folders for inserting certificates which contain already pre-printed details of the arguments and nothing remains to be written on the same. Relying on the aforesaid Circular and Chapter Note 12, it is apparent that the said product needs to be classifiable under Chapter 49 and not under Chapter 48.
Classification of the waste paper - appellants have sought to classify the same under Chapter 49, however Revenue sought to classify the same under Chapter 48 - HELD THAT:- The impugned order does not give any finding whatsoever on this issue. In para 21 of the said order which discusses various items but there is no discussion whatsoever of item namely Waste Paper. It is also found that even in Order-in-Original, there are no specific findings.
Notification of extended period of limitation - HELD THAT:- It is seen that CBIC has issued a Circular to Clarify the classification of the goods and the interpretation of Chapter Note 12 & 14 of the Chapter 48. The CBEC has issued a clarification relied on decision of Hon’ble Apex Court in case of M/S. HOLOSTICK INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NOIDA [2015 (4) TMI 357 - SUPREME COURT]. From the nature of dispute, it is apparent that it was possible that appellants to hold a bonafide belief, in such circumstances, extended period of limitation in respect of these items cannot be invoked.
Appeal allowed in part and part matter remanded.
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2022 (11) TMI 436 - TELANGANA HIGH COURT
Clandestine removal - suppression of acquisition - acquittal of the accused - Sections 9(1)(b) and 9(1)(bb) read with Section 9-AA of Central Excise Act and also violation of Central Excise Rules, 1944 - HELD THAT:- CESTAT had decided the issue, ultimately it has reduced the penalties and when the amounts payable are concerned, Accused No.1-Company is liable to pay Rs. 17,74,021/- towards BED and Rs.1,98,848/- towards AED totaling to Rs. 19,72,869/-. Ex.D6 which is a confidential circular enhancing the monetary limit for launching prosecutions to Rs.25 lakhs is not disputed. The said enhancement of monetary limit was prospective in nature and squarely applicable to the benefit of the appellant in the present facts and circumstances.
The Hon’ble Supreme Court in the case of Radhakrishna Nagesh v. State of Andhra Pradesh [2012 (12) TMI 1232 - SUPREME COURT] held that under the Indian criminal jurisprudence, the accused has two fundamental protections available to him in a criminal trial or investigation. Firstly, he is presumed to be innocent till proved guilty and secondly that he is entitled to a fair trial and investigation. Both these facets attain even greater significance where the accused has a judgment of acquittal in his favour. A judgment of acquittal enhances the presumption of innocence of the accused and in some cases, it may even indicate a false implication. But then, this has to be established on record of the Court.
This Court does not find any illegality in the orders of the learned Sessions Judge for relying upon Exs.D6, D7 and also D8 and finding that the benefit ought to have been extended to the appellants, the same cannot be held to be improper or not based on record - Appeal dismissed.
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