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Central Excise - Case Laws
Showing 61 to 80 of 83 Records
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2022 (11) TMI 435 - CESTAT MUMBAI
Process amounting to manufacture - Green Houses - Revenue was of the view that 'greenhouses' are put up as elements to be assembled on site, and appellant was manufacturer of greenhouses where they supply the raw material and carry out erection/ installation also - classification of goods - demand of Central Excise duty on the manufacture & clearance of their finished goods with effect from 28.02.2005 - Recovery of Central Excise Duty - demand of interest alongwith penalty - extended period of limitation - HELD THAT:- From the perusal of the order of the tribunal in case of JAIN IRRIGATION SYSTEM LTD., SHIV VIJAY SINGHAVI, SHRI DI DESARDA VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2018 (11) TMI 897 - CESTAT NEW DELHI], it is evident that the said order has decided the issue of classification of the goods and has not decided the issue in respect of the manufacture. The order is totally silent on this aspect, which goes to the root of the matter i.e. whether the activities undertaken by the appellant would amount to manufacture or not. The issue of manufacture was not even argued before the tribunal in the that case and hence the order to that extent is sub silentio. Appellants have in the present case challenged the demand on the ground that activities undertaken by them do not amount to manufacture.
From the perusal of the order of the tribunal in case of Jain Irrigation, it is evident that the said order has decided the issue of classification of the goods and has not decided the issue in respect of the manufacture. The order is totally silent on this aspect, which goes to the root of the matter i.e. whether the activities undertaken by the appellant would amount to manufacture or not. The issue of manufacture was not even argued before the tribunal in the that case and hence the order to that extent is sub silentio. Appellants have in the present case challenged the demand on the ground that activities undertaken by them do not amount to manufacture - the polyhouse/ green house is put up as elements to be assembled at site. It is therefore apparent that the claims of the appellants that they are just purchasing materials and selling the same & that they merely collect bought out duty paid items and supply them is not correct in as much as these goods are thereafter assembled and installed at the customer site by the appellant to bring into existence the “greenhouse”. Commissioner has in para 27 and 28 of his order elaborately referred to the documents and records to arrive at the findings that the goods supplied were essentially complete set of components for erecting and installing the greenhouse.
The issue whether the activities undertaken by the appellants do amount to manufacture of Prefabricated building -Green House or not is a question of fact and needs to be ascertained from the facts available on the records. In the paper book filed along with the appeal, appellants have enclosed a number of purchase order and invoices which were in reference to the supply of raw material, and the material. In fact there are no purchase orders/ invoices for the supply of Green House. No clear cut findings have been rendered by any authority on this aspect - Joint commissioner in his order has recorded the factum of issuance of notice demanding service tax and its adjudication. But do not records anything further. All these facts need to be ascertained and final view needs to be taken in the matter for ascertaining whether the activities undertaken by the appellant amounted to manufacture of prefabricated building – green house.
The matter needs to be remanded back to the original authority to reconsider the issue of manufacture and for recording the findings - Appeal allowed by way of remand.
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2022 (11) TMI 400 - CESTAT NEW DELHI
Maintainability of petition - requirement of deposit of mandatory amount under Section 35F of Central Excise Act, 1944 as made applicable to Service Tax matters by Section 83 of the Finance Act - HELD THAT:- It would be seen from a bare perusal of section 35F of the Customs Act that after August 06, 2014 neither the Tribunal nor the Commissioner (Appeals) have the power to waive the requirement of pre-deposit, unlike the situation which existed prior to the amendment made in section 35F on August 06, 2014 when the Tribunal, if it was of the opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship, could dispense the said deposit on such conditions as it deemed fit to impose so as to safeguard the interest of the Revenue.
The Supreme Court in NARAYAN CHANDRA GHOSH VERSUS UCO BANK [2011 (3) TMI 1478 - SUPREME COURT], examined the provisions contained in section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 relating to pre deposit in order to avail the remedy of appeal. The provisions are similar to the provisions of section 129E of the Customs Act. The Supreme Court emphasised that when a Statue confers a right to appeal, conditions can be imposed for exercising of such a right and unless the condition precedent for filing appeal is fulfilled, the appeal cannot be entertained. The Supreme Court, therefore, held that deposit under the second proviso to section 18(1) of the Act, being a condition precedent for preferring an appeal, the Appellate Tribunal erred in law in entertaining the appeal. The Supreme Court also held that the Appellate Tribunal could not have granted waiver of pre-deposit beyond the provisions of the Act.
A Division Bench of Delhi High Court in M/S. VISH WIND INFRASTRUCTURE LLP, M/S. J.N. INVESTMENT & TRADING CO. PVT. LTD. VERSUS ADDITIONAL DIRECTOR GENERAL (ADJUDICATION) , NEW DELHI [2019 (8) TMI 1809 - DELHI HIGH COURT] examined the provisions of section 35F of the Central Excise Act, 1944 which are pari materia to section 129E of the Customs Act and held that every appeal filed before the Tribunal after the amendment made in section 35F of the Excise Act and section 129E of the Customs Act on 06.08.2014 would be maintainable only if the mandatory pre-deposit was made.
The appellant has not made the pre-deposit - the application for waiver of pre-deposit is accordingly, rejected.
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2022 (11) TMI 338 - CESTAT CHENNAI
CENVAT Credit - capital goods after 01.04.2016 - housekeeping services - Equal penalty on the appellant under Rule 15(2) of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 - HELD THAT:- The definition of “capital goods” after 01.04.2016 does not exclude ‘any equipment or appliance used in an office’. For this reason, it is held that the credit availed by the appellant on the said computer server after 01.04.2016 would be eligible. It has also been stated by the appellant that these form an integral part of their manufacturing process as all the data is collected in the said server.
Housekeeping services - HELD THAT:- The credit availed by the appellant has been disallowed alleging that these services are consumed in the Mumbai office. It is not in dispute that the Mumbai office is an integral part of the business of the appellant and is doing the administrative work in respect of the appellant’s factory. For this reason, the credit availed by the appellant on Housekeeping Services at their Mumbai office is eligible.
Equal penalty on the appellant under Rule 15(2) of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 - HELD THAT:- The issue being an interpretational one and the appellant having been eligible to avail the credit on the said capital goods after 01.04.2016 as well as the credit on Housekeeping Services, the penalty imposed requires to be set aside.
Appeal allowed in part.
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2022 (11) TMI 337 - CESTAT CHENNAI
Refund of CENVAT Credit reversed under protest - clearance of the waste products namely bagasse and press mud which emerged during the course of manufacture of sugar - time limitation u/s 11B of the Central Excise Act, 1944 - HELD THAT:- The appellant has reversed the credit for the period 1.4.2010 to 1.5.2013 and refund claim has also been filed for this period. The department has calculated the period of one year from the date of reversal and taken the view that the refund claim is barred by limitation. It is to be noted that the appellant had reversed the credit and intimated the department by issuing letters on various dates - the appellant has noted that they dispute the payment or reversal of credit. It is not necessary that the exact words ‘payment made under protest’ has to be written by the assessee. Protest means disagreement. If a note is given along with the reversal of credit that they are paying the amount only by abundant caution and intend to proceed with litigation would necessarily mean that they are reversing the credit under protest. Further, in the present case a protest cannot be made on the invoice or bill of entry as is usually done. It is a case of making payment by reversal of credit in their CENVAT account. The only method by which the appellant could intimate or inform their protest is by issuing a letter to the department that they are paying the amount are disputing the payment made.
The demand having been dropped by the department, the consequence would be that the appellant would be eligible for refund of the credit that has already been reversed. It clearly shows that the issue was under litigation which is indication of protest / disagreement. The factual matrix would be that the issue was in dispute and the appellant was disputing the amount alleged to be payable by them. The letters issued by the appellant every month intimating the reversal as well as reserving their right for litigation would show that the credit has been reversed under protest.
The allegation that the refund claim is hit by time-bar cannot sustain and requires to be set aside - Appeal allowed.
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2022 (11) TMI 336 - CESTAT AHMEDABAD
Conversion of 100% EOU to normal DTA Unit - work in process / semi-finished goods at the time of debonding of EOU - requirement to pay duty or not - HELD THAT:- As per the details submitted by the appellant which is not in dispute, the semi-finished goods/ work in process was not in fully manufactured form and the same was at different stages of the manufacturing process. The said goods are not marketable as such which were subjected to various other processes to attain the stage of final product, therefore, at the semi-finished stage, where no excisable goods came into existence, the demand of duty at the time of debonding is, in our view, incorrect in law. In any case, these semi-finished goods/ work in process will reach to the stage of final product and the same is liable for duty at the time of clearance from the factory. Therefore, at the intermediate stage when the goods are not fully manufactured, the excise duty was not payable at the time of debonding, particularly when the goods were not cleared from the factory and were in the process of manufacturing.
No duty can be demanded on semi-finished goods/ work in process, lying at the time of debonding of 100% EOU - Appeal allowed - decided in favor of appellant.
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2022 (11) TMI 335 - CESTAT AHMEDABAD
Refund of excise duty - amount was paid under protest - Time Limitation - HELD THAT:- The larger bench of tribunal in the case of INDIA CEMENTS LIMITED [1984 (7) TMI 361 - CEGAT NEW DELHI] where it was held that the result of the proposition that limitation does not extinguish the right but only bars the remedy would be that the Respondent, in this case, had a right to recover the amount by recourse to any other legal course open to him but not by recourse to Central Excise Rule 10 since limitation had, as on the date of invoking the right to demand the amount by recourse to that rule, extinguished that remedial right.
It is also a fact that duty was paid under protest in case of INDIA CEMENTS LIMITED which is also true in the instant case and therefore, the arguments made by the learned counsel to distinguish the decision of tribunal in the case of INDIA CEMENTS LIMITED is not correct - Relying on the decision of larger bench in case of INDIA CEMENTS LIMITED, it is found that the appellants are not entitled to refund of the duty paid.
Appeal dismissed.
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2022 (11) TMI 289 - CESTAT MUMBAI
Refund of pre-deposit - Abatement of appeal - CIRP proceedings - Rule 22 of CESTAT (Procedure) Rules, 1982 - HELD THAT:- It is not disputed that the Resolution Plan for the appellant company was approved by Learned NCLT vide its orders dated 3.7.2019 and 22.7.2019. As per Section 31(1) of I&B Code, once a resolution plan is duly approved by the Adjudicating Authority, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors including the Central Government, any State Government or any local authority, guarantors and other stake holders - In the instant case the Resolution Plan was approved by the learned NCLT vide its order dated 3.7.2019 and certain clarifications in some paragraphs of the order were made by the learned NCLT vide its order dated 22.7.2019.
In the matter of M/S. ALOK INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BELAPUR AND COMMISSIONER OF CEN. EXCISE, MUMBAI CENTRAL [2022 (10) TMI 801 - CESTAT MUMBAI] of this Tribunal in similar circumstances in which it has been held that the appeal abates in terms of Rule 22 ibid with effect from the date of approval of resolution plan by learned NCLT.
As the appeal has already been abated therefore the appellant cannot claim any refund before this Tribunal of any pre-deposit made by them before the Commissioner (Appeals), as the power which Hon’ble Supreme Court/High Courts can exercise are not available with this Tribunal - Application disposed off.
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2022 (11) TMI 288 - CESTAT KOLKATA
CENVAT Credit - availment of credit on remaining 50% unavailed credit in respect of capital goods which allegedly were not in possession and use of the manufacturer (RSP) since the RFP had stopped production at the time of availment of such CENVAT Credit - violation of Rule 4(2)(b) of the CENVAT Credit Rules - Suppression of facts or not - HELD THAT:- Factory in terms of Section 2(e) of the Central Excise Act includes any number of inputs within the same premises irrespective of the number of Central Excise registrations. Thus no distinction between the Rourkela Steel Plant (RSP) and Rourkela Fertilizer Plant (RFP) can be inferred as both are one and the same factory - the Tribunal in the case of DHAMPUR SUGAR MILLS LTD. VERSUS COMMISSIONER OF C. EX., MEERUT [2001 (1) TMI 129 - CEGAT, COURT NO. IV, NEW DELHI] held that the number of different plants manufacturing different excisable goods in the same premises would constitute one factory. Their separate registration under Rule 173G of Central Excise Rules, 1944 would not mean that they are different factories. Different units to be regarded as one factory if all excisable goods are manufactured in the same premises.
The audit para No.2 of IR No.30/2004-05 on the basis of which the present issue was raised has been dropped by AG (Odisha) as held in the present Order-in-Original (para 5.9 at page 63). Intimation by the Department to the Appellant regarding dropping of the said para forms part of the Appeal Paper book. The Show Cause Notice dated 19.11.2007 was issued to the Appellant on the basis of said audit para. When the audit Memo itself has been dropped, the present proceeding which has been originated from the said audit Memo has become non est - Hon’ble Supreme Court in the case of ANAND NISHIKAWA CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MEERUT [2005 (9) TMI 331 - SUPREME COURT] has held that when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression.
On identical issue the Show Cause Notice has been adjudicated in favour of the Appellant and has attained finality in the absence of any challenge by the Department. The subsequent notice cannot be issued beyond limitation as held by the Hon’ble Supreme Court in the case of NIZAM SUGAR FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, AP [2006 (4) TMI 127 - SUPREME COURT].
The impugned orders cannot be sustained and are accordingly set aside - Appeal allowed - decided in favor of appellant.
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2022 (11) TMI 264 - CESTAT AHMEDABAD
CENVAT Credit - inputs - goods namely steel plates, HR plates, HR coils, MS Bar, MS Beam, MS Joists, GC Sheets, etc - period from March, 1995 to September, 2003 - HELD THAT:- The appeal pertains to the period March, 1995 to September, 2003, the adjudicating authority decided the matter solely on the basis of Larger Bench decision in the case of VANDANA GLOBAL LTD. VERSUS CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] wherein, it was held that the amendment of Notification No. 16/2009-CE (NT) dated 07.07.2009 has a retrospective effect and accordingly, even for the period prior to such amendment the credit is not admissible. This decision was reversed by the Hon’ble Chhattisgarh High Court in M/S VANDANA GLOBAL LIMITED AND OTHERS VERSUS COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, CENTRAL EXCISE [2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT].
The adjudicating authority needs to give a fresh look in the entire case in the light of the various judgements given subsequent to the reversal of larger bench decision in the case of VANDANA GLOBAL by the Hon’ble High Court of Chhattisgarh - the appeals are allowed by way of remand to the adjudicating authority for passing a fresh order.
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2022 (11) TMI 263 - CESTAT NEW DELHI
Quantum of interest, calculated correctly or not - relevant date for calculation of interest - whether the appellant have been granted correct amount of interest for the correct period on the deposit made during the investigation, pursuant to being successful in appeal? - HELD THAT:- Under similar circumstances, where the amount was deposited during investigation/audit, this Tribunal has allowed the interest from the date of deposit till the date of refund @12% P.A.
The appellant is entitled to interest from the date of deposit till the date of refund @ 12% P.A. Adjudicating Authority is directed to grant the balance interest within a period of 30 days from the date of receipt of this order - Appeal allowed - decided in favor of appellant.
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2022 (11) TMI 148 - CESTAT KOLKATA
Utilization of Cenvat Credit of basic Excise Duty for discharge of E Cess and SHE Cess - suppression of facts or not - Extended period of limitation - HELD THAT:- There can be no doubt that the purported demands against the appellant could have been confirmed only if the invocation of extended period of limitation was proven to be legal and justified. Upon perusal of the show cause notice dated 19.02.2015 it is clear that no allegation had been framed that the appellant had suppressed material facts from the Department or that the appellant had committed any specific default warranting invocation of the extended period of limitation. Thus, the appellant was never put to notice as to which of the various acts or omissions mentioned in the proviso to Section 11A(1) of the Act had been committed by it - thus, the invocation of extended period of limitation was totally contrary to law.
The assessee could not have been faulted for its conduct, even if it were to be held that cross utilization of basic Excise Duty credit for payment of E Cess and SHE Cess was prohibited under the Rules. In the case of M/s Madura Industrial Textiles, [2013 (1) TMI 352 - GUJARAT HIGH COURT], the Hon’ble Gujarat High Court had considered the issue and ruled in favour of the assessee.
The evidences on record do not show that the appellant had acted otherwise than in a bona fide manner. It is not disputed that the details regarding availment and utilization of the disputed credit had been disclosed in the appellant’s Central Excise returns filed with the Department. The issue of purported illegal utilization of credit had come to the Department’s knowledge as far back as in the year 2013 while conducting audit - there are no reason to sustain the invocation of extended period of limitation against the appellant.
It is held that the purported disallowance of Cenvat Credit of Rs. 9,08,676/- against the appellant is illegal and unjustified. The confirmation of interest and equivalent penalty under Section 11AB/AA of the Act and Rule 15 of the Rules respectively is also held as unsustainable - Appeal is disposed of on the point of limitation.
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2022 (11) TMI 99 - CESTAT KOLKATA
CENVAT Credit - Iron and Steel Materials - applicability of principles of user test - April 2008 to March 2009 - levy of penalty - extended period of limitation - HELD THAT:- In the instant case the dispute relates to the period from April, 2008 to March, 2009 whereas the Show Cause Notice is issued on dated 25.07.2012 i.e. beyond normal period of limitation of one year. Therefore, as per Section 11Aof the Central Excise Act, 1944 the entire demand is barred by normal period of limitation. Hence, extended period of limitation cannot be invoked in the instant case in as much as none of the ingredients necessary for invoking extended period under proviso to Section 11A (1) exists.
Levy of penalty - HELD THAT:- In the facts and circumstances of the case there is no warrant in levying any penalty upon the Appellant. During the material period the position of law was not settled and there were divergent views expressed by the Courts / Tribunals leading to referral of the matter to Larger Bench in the case of Vandana Global Ltd., Vs. CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)].
Hon’ble Chhattisgarh High Court has set aside the decision of the Tribunal’s Larger Bench in the case of Vandana Global M/S VANDANA GLOBAL LIMITED AND OTHERS VERSUS COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, CENTRAL EXCISE [2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT]. It is further observed that the principle of “user test” also need to be considered while deciding the entitlement of assessee to avail CENVAT Credit as laid down by the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS LTD. [2010 (7) TMI 12 - SUPREME COURT]. Following the said decision, the Hon’ble Madras High Court in the case of Thiru Arooran Sugars [2017 (7) TMI 524 - MADRAS HIGH COURT], has held that iron and steel items and cement used for erection of foundation and support structures would also come within the ambit of the definition of “input” so long as it satisfies the “user test”.
In the facts of the present case, it is not in dispute that various steel items have been used for the purpose of setting up of Sponge Iron Plant for manufacture of final products. Therefore, by applying the “user test” principle, the Appellant is entitled to avail credit on the steel items.
The Appellant is entitled to avail credit - Appeal allowed - decided in favor of appellant.
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2022 (11) TMI 98 - CESTAT CHENNAI
Refund of Excise duty paid mistakenly - refund rejected on the ground of principles of unjust enrichment - it is alleged that appellant have passed on the duty incidence to the buyer - HELD THAT:- Undisputedly, the appellant has mentioned the duty element in the invoices issued to the buyers. The presumption envisaged in section 12B of Central Excise Act, 1944 then applies and the burden rests upon the appellant to rebut this presumption. In para 12 of the impugned order, the Commissioner (Appeals) has discussed that though the appellants produced Cost Accountant and Chartered Accountant’s certificate, these are not certificates issued by their statutory auditors. Further, it is also not stated in the certificates that they have scrutinized financial statements of the appellant. Even after remand, the appellant has not been able to produce necessary documents to substantiate that they have not passed on the incidence of duty to the buyers of the goods.
The rejection of refund claim is legal and proper - Appeal dismissed.
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2022 (11) TMI 97 - CESTAT MUMBAI
CENVAT Credit - input services - sale commission - whether commission agent is directly concerned with ‘sales’ rather than ‘sales promotion’ for which the same would not fall within the definition of input services? - effect of N/N. 2/2016-CE(NT) - contention of the Respondent-Department is that the said notification is prospective in nature while Appellant claims that being a beneficial provision, it is a clarification which is retrospective in nature and it covers the period of dispute of Appellant occurred post 2011 amendment.
HELD THAT:- Learned Counsel for the Appellant Mr. Harish Bindumadhavan draws attention of this Bench to the decision rendered by this Tribunal in M/S ESSAR STEEL INDIA LTD. VERSUS COMMISSIONER OF C. EX. & SERVICE TAX, SURAT-I [2016 (4) TMI 232 - CESTAT AHMEDABAD] wherein by applying the ratio of the judgment passed by the Hon'ble Supreme Court in the case of COMMISSIONER OF INCOME TAX (CENTRAL) -I, NEW DELHI VERSUS VATIKA TOWNSHIP PRIVATE LIMITED [2014 (9) TMI 576 - SUPREME COURT] it was held that explanation inserted in Rule 2(l) of Rules, 2004 that is in conformity to Board Circular dated 29.04.2011 extending benefit to the assessee would have retrospective effect.
Thus, Appellant is eligible to avail credits on the tax paid on sale commission paid to both Indian and overseas agents for the period between April, 2013 and August, 2015 - appeal allowed - decided in favor of appellant.
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2022 (11) TMI 96 - CESTAT MUMBAI
Refund of Cenvat Credit lying unutilized in the books of account - refund sought on the ground that the factory of the appellant was closed down and there was no occasion or scope to utilize such accumulated Cenvat Credit for payments of Central Excise duty on the excisable goods manufactured by them - HELD THAT:- Against the outstanding demand of Rs.51,86,838/- confirmed as interest liability, the refund amount sanctioned by the Department was appropriated against such liability. On perusal of the case records and documents submitted by the appellants today at the time of hearing of appeal, it is found that the interest demands has already been settled under the SVLDRS-4, 2019 and consequent upon settlement of dispute, the appeal filed by the appellant before the Tribunal was also dismissed as deemed withdrawal.
On perusal of SVLDRS-4 submitted by the appellant, wherein the department has confirmed that the outstanding liability has already been settled under such scheme. Since there is no liability of making any payments towards the adjudged Government dues as on date, there is no question of any appropriation of the sanctioned refund amount against any liability as mentioned in the adjudication order dated 03.11.2017.
The appeal filed by the appellant is allowed, with the direction that the appellant should be entitled for grant of refund for an amount of Rs.35,23,640/-.
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2022 (11) TMI 95 - CESTAT NEW DELHI
Restoration of appeal - Sabka Vishwas (Legacy Dispute Resolution) Scheme (SVLDRS) - appellant submits that the learned Commissioner has erred in dismissing the appeal as deemed to have been withdrawn merely because the appellant applied under SVLDRS, 2019 whereas the same has been withdrawn subsequently - HELD THAT:- Sabka Vishwas (Legacy Dispute Resolution) Scheme (SVLDRS) was introduced by way of Finance (No. 2) Act, 2019 by the Central Government. The main objective of the scheme is to provide for the settlement of pending disputes related to indirect taxes. The Appellant although applied under the said scheme but the same was withdrawn later on for the reasons best known to them. Admittedly, no payment had been made by them within the period stipulated under Section 127(5) of the Finance Act and as a result no discharge certificate in form SVLDRS-4 in terms of Section 127(8) of the Finance Act was issued to the Appellant. Unless the tax dues as pointed out by the Designated Committee have been paid by the applicant under the said scheme, the issue cannot be said to have settled and therefore, without looking into it merely on applying under SVLDRS, the learned Commissioner (Appeals) erred in dismissing the Appeal as deemed to have withdrawn.
There are no other option but to set aside the impugned order without going into the merits and remanding the matter back to the learned Commissioner (Appeals) to decide the appeal afresh on merits after following the principle of natural justice - appeal allowed by way of remand.
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2022 (11) TMI 94 - CESTAT MUMBAI
CENVAT Credit - Input services - Foreign travel services used for air travel agencies services for their staff or employee to travel abroad for business purpose - scope of the phrase 'personal use or consumption' - after 01.04.2011 the phrase "activities relating to business" was deleted from the inclusive clause of the input service definition and Rule 2(1)(ii)(C) specifically excluded travel benefit extended to employee for personal use.
HELD THAT:- The issue involved has been determined by the Tribunal in ROHA DYECHEM PVT LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE RAIGAD [2017 (9) TMI 1995 - CESTAT MUMBAI], where it was held that Admittedly, the foreign travel expenses were incurred for staff to travel abroad for business purposes. Appellant is a manufacturer and the business of manufacturing does not preclude activities relating to manufacture outside the country. Likewise, the courier was entrusted with dispatch of documents and correspondence from the office of the appellant which can be presumed to have been in connection with its principal activity. Furthermore, it is inconceivable that research & development could have been in connection with anything other than manufacture.
Appeal allowed - decided in favor of appellant.
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2022 (11) TMI 44 - GUJARAT HIGH COURT
Remission of duty - Tobacco - Pan Masala - goods lying without any use since 2004 - goods are unfit for consumption or not - Rule 21 of the Central Excise Rules, 2002 - HELD THAT:- As admittedly the goods being tobacco and pan masala are not fit for consumption since 2004 as they are lying without any use, the following interim order is passed in the interest of justice:
(i) The petitioner shall furnish the bank guarantee of Rs. 3 Crore of any nationalized bank in favour of respondent-the Principal Commissioner, Central GST and Central Excise, Vadodara-I within a period of four weeks from today.
(ii) On furnishing such bank guarantee by the petitioner, without prejudice to the rights and contentions of both the sides, the respondent shall permit the petitioner to destruct the goods in question.
Stand over to 24.11.2022.
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2022 (11) TMI 43 - MADHYA PRADESH HIGH COURT
Marketability - different iron and steel items such as plates, angles, channels, beams etc. - turnkey project - HELD THAT:- In the instant case, what was being marketed therein are cement concrete poles, which have been manufactured, therefore, it was held thereon that the marketability of the article does not depend on the number of purchasers nor is a market confined to the territorial limits of the country.
What the department would have to show is that the goods that are being manufactured by the petitioner are goods that are capable of being sold in the open market or to any purchaser. Only going by the theoretical reference that goods are marketable is not sufficient. The nature and extent of the goods requires to be defined in order to show that any one in the open market can purchase the same. In the instant case, there is no dispute that what the petitioner is fabricating or manufacturing are articles such as Spillway Raidal Gates, Spillway Stoplog Units, Intake Gates of Trash Racks, Sedimentation Chamber Gates, Flushing Conduit Gates. The same has also been extracted in the impugned order. They would clearly indicate that these are articles that have been fabricated or manufactured for the particular requirements of the particular Hydroelectric Project. That the Gates, RCC construction etc. have been made by the petitioner - it cannot be said, nor to be found from any material on record to indicate that all the goods that are being manufactured by the petitioners are goods which are said to be marketable.
The order dated 15.12.2005 passed by respondent no.1 is quashed. The amount in deposit made by the petitioner with the respondents is directed to be adjusted towards any dues of the petitioner and if there are no dues, then to be refunded to him within a period of six months from today - petition allowed.
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2022 (11) TMI 42 - CESTAT CHENNAI
CENVAT Credit - lease rental charges paid to the Ashok Leyland Wind Energy Ltd. for the power that has been drawn by the respondent at Chennai - lease rental is computed on the actual power consumed by respondent on agreed rates - case of Revenue is that the service tax paid on services of generation of electricity (which is not excisable) and situated far away from the factory premises cannot be said to be related to the manufacturing activity carried out at Chennai - HELD THAT:- On perusal of the Show Cause Notice, it is seen that the electricity generated by the windmills is transmitted to the Udumalpet TNEB Grid and the respondent draws the same quantity of electricity at Chennai. There is no allegation in the Show Cause Notice that any excess electricity has been sold to any other party. The respondent has availed credit on the lease rental which is calculated on the basis of the electricity consumed by them. Electricity being in a nature which cannot be transported in an ordinary manner, the respondent has made the facility of transmitting it through TNEB grid and drawing it at Chennai. It is not in dispute that the said electricity is supplied to the factory of the respondent and the same is used for manufacturing activity. Merely because the wind generation plant is situated far away from the manufacturing activity, credit cannot be denied.
The impugned order does not call for any interference - Appeal dismissed.
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