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Central Excise - Case Laws
Showing 81 to 88 of 88 Records
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2022 (8) TMI 162 - CESTAT MUMBAI
SSI Exemption - use of brand name/trade name of others, or not - allegation is that the Appellant during the period July 2009 to April 2010, cleared the Printed and Plain Paper Labels/Tags/Stickers, Folders and Diaries falling under Chapter 48 of Central Excise Tariff Act, 1985, bearing brand name/trade name of others - benefit of N/N. 8/2003-CE, dt.01.03.2003 - HELD THAT:- The coordinate bench in M/S J.S. CREATION VERSUS CCE MUMBAI-V [2019 (5) TMI 323 - CESTAT MUMBAI] has already decided the issue in the appellants own case for the period April 2006 to June 2009. We are concern with the period of demands made on the same issue for the period July 2009 to April 2010.
The value of aggregate clearance of diaries be included in computing the exemption limit prescribed under Notification No.8/2003-CE, dt.01.03.2003 for the period in question - the matter is remanded to the Adjudicating authority to determine the aggregate value of clearance and re-compute the demand with interest and penalty.
Appeal allowed in part by way of remand.
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2022 (8) TMI 161 - CESTAT AHMEDABAD
Territorial Jurisdiction - proper officer to pass adjudication order - it is pointed out that the adjudication order was passed by Principal Additional Director General (Adjudication) Directorate General of GST Intelligence New Delhi, the appeal lies before the Delhi Bench of this Tribunal - HELD THAT:- The identical issue of jurisdiction came before this tribunal in the case of SAVITHA NISAR VERSUS ADJUDICATION DRI MUMBAI [2021 (12) TMI 1373 - CESTAT AHMEDABAD], where it was held that the impugned order was passed by the ADG (Adjudication),DRI, Mumbai. Accordingly, the appeal lies in the Mumbai bench and this Ahmedabad bench has no jurisdiction to entertain this appeal. Accordingly, the appeal is dismissed as non maintainable.
In the present case, similar to the given judgment the impugned order was passed by the Principal Additional Director General (Adjudication) DGGI- Delhi. Therefore, the appeal lies before the Delhi Bench accordingly, the appeals are dismissed as non- maintainable.
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2022 (8) TMI 103 - CESTAT MUMBAI
Classification of goods - Fertilizers or Plant Growth Regulators (ZP-770 Kg.) - to be classified as ‘fertilizer’ under CETH 3101 or as ‘plant growth regulator’ under CETH 3808? - Rule 3(c), the General Rules for Interpretation of Central Excise Tariff Act, 1985 - period November, 2006 to September, 2010 - period October, 2010 to June, 2011 - invocation of extended period of limitation - HELD THAT:- The emphasis of the rule 3(c) is on the heading which provides the most specific description. The goods are to be classified as per their description and the general description should not be preferred before the specific description. Moreover, in terms of Rule 3(b), mixture consisting of different materials is to be classified with reference to the major component which gives it the essential character. We find that in the case of impugned product, the major constituent is seaweed powder extract. The learned adjudicating authority has not appreciated the provisions of Rule 3(a) and (b) correctly and has jumped directly to Rule 3(c) of the General Interpretation Rules, which is not correct to our understanding. The classification of the goods should be done by the reference of the heading and chapter note.
It is pertinent to note the Explanation given in Chapter 12.12 of HSN, seaweed and other algae and it says that this Heading covers all seaweeds and other algae whether or not edible, they may be fresh, chilled, frozen, dried or ground. Seaweeds and other algae are used for various purposes (e.g. pharmaceutical products, cosmetics, human consumption, animal feeding, and fertilizers) and other that should be as such that this heading excludes Fertilizers of Heading 31.01 or 31.05. A plain reading of this note indicates that seaweed and other algae should also be used as fertilizer and when done so, they fall under Heading 3101 or 3105 and even otherwise by referring to Note 3(b) of General Interpretation Rules, the product in dispute falls under CETH 3101.
Thus, it was held by the Tribunal in the case of CCE, ROHTAK VERSUS M/S. SAFEX CHEMICAL INDIA LTD. [2017 (9) TMI 140 - CESTAT CHANDIGARH] that though the chemical examination report indicates the presence of ingredients like, Auxin and Cytokinins are known to find use as Plant Growth Regulator, percentage compositions of these ingredients have not been ascertained. It cannot be ruled out that these ingredients can be present in the small traces in the sample; the same can be called as fertilizer also.
It is seen that such enzymes help in plant growth regulation are present but in only small traces i.e. 0.26% and 0.53% prior to 03.07.2010. For the period after 03.07.2010, even the traces are absent - the impugned goods cannot be classified as plant growth regulator just because small trace of 6-BA and 4-CPA are present.
Invocation of extended period of limitation - HELD THAT:- The appellants have stated that they have submitted their items and given all the details to the Department in 2006 itself and as such, no intent to evade payment of duty by way of suppression, concealment, mis-representation etc. can be alleged and, therefore, the extended period cannot be invoked - the contentions of the appellants are agreed upon, however, as it is held that the appellant’s submissions are acceptable on merits, the issue of classification will not alter the position of the case in any manner.
Appeal allowed - decided in favor of appellant.
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2022 (8) TMI 102 - CESTAT NEW DELHI
Refund claim - Violation of principles of natural justice or not - absence of any proof regarding non-subsummation of the impugned amount by the party - invocation of time limitation under section 11B of Central Excise Act, 1944 - HELD THAT:- There is no denial to the fact that the amount, the refund whereof has been filed way back in the year 2018 was the amount deposited in the year 2016 during an investigation about proposed duty demand for the clearances made by the appellant in the period 2009-2011. The question of passing of the burden of an amount 5 years prior the amount was deposited is not at all possible. There was no need for the Reviewing Authority to take altogether different ground that too the one which is apparently not sustainable. The issue regarding application of principles of unjust enrichment to refund of pre-deposit is no more res integra.
There are also very many judgments of various Courts, which have also reiterated the same principles that in case any amount is deposited during the pendency of adjudication proceedings or investigation, the said amount would be in the nature of deposit under protest and, therefore, the principles of unjust enrichment would not apply. In view of the catena of decisions, available on this issue, this Court answers the substantial question of law against the Revenue and in favour of the assessee.
Invocation of time bar of section 11 (B) of Central Excise Act, 1994 - HELD THAT:- It is observed that amount, the refund whereof was claimed, is an amount which was deposited by the appellant during the stage of investigation when impugned demand was proposed. Once the said proposal has failed to attain finality i.e. when the duty demand has been set aside, the aforesaid was not the deposit with reference to duty but was deposit under protest. Since it is not the amount of duty Section 11 (B) of CEA, 1944 and the time bar therein cannot be invoked - thus, the entire amount of Rs.6,27,728/- is to be refunded to the appellant alongwith interest as already been ordered by Commissioner (Appeals) in order dated 16.07.2019. Otherwise also it is observed that the Reviewing Authority has not challenged the findings as far as the non-applicability of section 11 B of Central Excise Act, 1944 and the time bar therein is concerned.
The Commissioner (Appeals) has allowed this appeal by way of remand in terms of section 35 A, Commissioner (Appeals) has the power, after making proper inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or other appealed against. The provision is abundantly clear that no power of remand has been vested by the statute in Commissioner (Appeals). Seen from this aspect also the order of Commissioner (Appeals) is not sustainable - appeal allowed - decided in favor of appellant.
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2022 (8) TMI 61 - CALCUTTA HIGH COURT
Maintainability of appeal - monetary amount involved in the appeal - shortage of excisable goods has been beyond the maximum condonable limit of 2% - suppression of material facts - Section 11A of the Central Excise Act - HELD THAT:- It is found that the Central Excise Duty demanded from the respondent is Rs.55,06,320.00. If that be the case, the revenue cannot pursue the appeal on the ground of low tax effect. For such reason, the appeal stands disposed of on the ground of low tax effect.
Appeal disposed off.
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2022 (8) TMI 60 - GAUHATI HIGH COURT
Recovery of excise duty, penalty, etc., from the petitioner - area based exemption - fixation of special rate of excise duty before initiating any process for recovery of excise duty, penalty, etc. - benefit of notification dated 25-4-2007 - HELD THAT:- In the case of M/S JYOTHY LABS LTD. (ERSTWHILE JYOTHY LABORATORIES LTD.) VERSUS UNION OF INDIA AND 2 ORS., PRINCIPAL COMMISSIONER CGST COMMISSIONERATE, ASSTT. COMMISSIONER OF GST AND CENTRAL EXCISE [2021 (8) TMI 726 - GAUHATI HIGH COURT], this Court had categorically held that the requirement of requesting for fixation of a special rate in respect of value addition to the manufactured goods had arisen only after the final judgment of the Supreme Court of India in UNION OF INDIA & ANOTHER ETC. ETC. VERSUS M/S V.V.F LIMITED & ANOTHER ETC. ETC. [2020 (4) TMI 669 - SUPREME COURT].
It is seen that by virtue of orders passed by the Supreme Court of India in IN RE COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (5) TMI 564 - SC ORDER] arising out of the said case, the period of limitation, whether condonable or not stood extended from 15-3-2020 till 2-10-2021 and it was further provided that In cases where the limitation would have expired during the period between 15-3-2020 till 2-10-2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 3-10-2021. In the event actual balance period of limitation remaining, with effect from 3-10-2021, is greater than 90 days, that longer period shall apply.
The petitioner has been able to show a prima facie case for hearing because if the requirement of requesting for fixation of a special rate in respect of value addition to the manufactured goods had arisen only after the final judgment of the Supreme Court of India on 22-4-2020, the period of limitation would stand extended for a period of 90 days from 3-10-2021 and therefore, the application which was submitted on 20-10-2021 by the petitioner was well within the period of limitation. Therefore, the balance of convenience tilts in favour of interim protection to the petitioner.
The Court is of the considered opinion that the petitioner is entitled to interim protection till disposal of the application dated 20-10-2021 by the competent authority of the respondent Nos. 2 and 3 - the respondent Nos. 2 and 3 authority are restrained from coercive action against the petitioner for enforcing refund in terms of demand cum-show cause notice till disposal of the application dated 20-10-2021 - Application disposed off.
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2022 (8) TMI 7 - CESTAT KOLKATA
CENVAT Credit - manufacture of dutiable and exempted goods (Bagasse and Bio Compost) by using common inputs - period May 2011 to September 2015 - applicability of Rule 6(1) of the Cenvat Credit Rules, 2002 - HELD THAT:- Reliance placed in the case of UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT] where it was held that In the present case it could not be pointed out as to whether any process in respect of Bagasse has been specified either in the Section or in the Chapter notice. In the absence thereof this deeming provision cannot be attracted. Otherwise, it is not in dispute that Bagasse is only an agricultural waste and residue, which itself is not the result of any process. Therefore, it cannot be treated as falling within the definition of Section 2(f) of the Act and the absence of manufacture, there cannot be any excise duty.
In respect of observations made on the basis of CBEC Circular dated 25.04.2015 (referred in Order of Ld.Commissioner(Appeals), the Hon’ble Allahabad High Court in the case of M/S BALRAMPUR CHINI MILLS LTD. THROUGH ITS GENERAL MANAGER VERSUS UNION OF INDIA, MINISTRY OF FINANCE DEPARTMENT OF REVENUE [2019 (5) TMI 972 - ALLAHABAD HIGH COURT] has held that That the Circular dated 25-4-2016 interpreting Explanation 1 to Rule 6 has provided that “consequently, Bagasse, dross and skimmings of non-ferrous metal or any such by-product of waste, which are non-excisable goods and are cleared for consideration from the factory need to be treated like exempted goods for purpose of reversal of credit of input and input services, in terms of Rule 6 of the Cenvat Credit Rules, 2004. The circular therefore treating Bagasse to be a non-excisable goods, is clearly erroneous, and for this reason also the Circular dated 25-4-2016 is liable to be quashed with regard to Bagasse.
The issue is squarely covered in the favour of the Appellant by the referred decisions - Appeal allowed - decided in favor of appellant.
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2022 (8) TMI 6 - CESTAT NEW DELHI
Violation of principles of natural justice - Documents seized in the process of search and seizure and which were not relied upon, were not returned - the cross-examination has not been allowed on the statements of persons, which were relied upon - HELD THAT:- There was indeed violation of principles of natural justice in the matter.
The matter is remanded back to the original authority with following directions:
(i) All documents which were seized from the appellant and which were not relied upon must be returned to it;
(ii) If any statement made by any person before a Central Excise officer was relied upon in the show cause notice the procedure required under Section 9D of the Central Excise Act must be followed. If the appellant seeks the cross-examination of the persons who made such statements the same must also be allowed. The assessee should be allowed cross-examination of any expert whose opinion was relied upon in the show cause notice.
Appeal allowed by way of remand.
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