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Central Excise - Case Laws
Showing 1 to 20 of 1430 Records
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2023 (12) TMI 1429
In the case before the Gujarat High Court, presided over by Honourable Mr. Justice Bhargav D. Karia and Honourable Mr. Justice Niral R. Mehta, the petitioners, represented by Mr. Amal Paresh Dave, challenged an Order-in-Original dated 30th October, 2023. The Central Excise & Service Tax Appellate Tribunal had previously remanded the matter to the Adjudicating Authority, emphasizing the necessity of allowing cross-examination as mandated by Section 9D of the Central Excise Act, 1944. Despite this directive, the Adjudicating Authority issued the impugned order without granting the petitioners the opportunity for cross-examination, asserting that Section 9D was not applicable. The petitioners cited the precedent set in Manek Chemicals Pvt. Ltd. v. Union of India, 2016(334) E.L.T. 302 (Guj.), to support their argument. The Court issued a notice, returnable on 24th January, 2024, to address these issues.
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2023 (12) TMI 1407
Calculation of duty demand for the period from 2002-03 till 8-9-05 - Eligibility for CENVAT Credit and Input Duty Credit - HELD THAT:- It was held by CESTAT that 'While the Appellants are certainly liable to penal action for not taking Excise Registration and not submitting the periodical returns from time to time and for not maintaining the prescribed registers, it would be necessary to take a liberal view in their case and allow them the small-scale exemption, computation on the basis of cum-duty price and set-off against the CENVAT Credit on the invoices issued by public sector suppliers subject to being available for verification.'
There are no manifest error of law in the impugned order of the Tribunal. No substantial question of law is involved. Therefore, the appeal is dismissed.
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2023 (12) TMI 1367
Reversal of credit - Closure of factory - non receipt of goods accompanying invoices stand admitted by all the three parties - HELD THAT:- The contention which was however addressed by the appellant was that even if credit had been availed albeit fraudulently, the same would stand reversed at the time of issuance of invoices - This understanding of a reversal of credit is what has been answered against the appellant by the CESTAT.
It is thus manifest that the CESTAT was justified and correct in ultimately coming to conclude that reversal of credit would not sustain, at least in the manner as suggested by the appellant.
There are no merit in the appeal. The instant appeal along with pending application shall consequently stand dismissed.
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2023 (12) TMI 1333
Time Limitation - Review Petition under Section 5 of Limitation Act - HELD THAT:- As per opinion of the Board vide letter dated 04.05.2023, the Review Petition is filed only for limited purposes for expunging the remarks and waiver of the cost. In para 26, this Court has deprecated the action of the respondents/authority in this matter and left it open to the Higher Officers of CGST to take appropriate action against the responsible Officers, therefore, it is for the Department to examine the conduct of their Subordinate Officer for taking appropriate action.
So far as waiver of cost is concerned, Review Petition is not liable to be entertained because after the date of raid, two years, the seal was not removed and assessee was not permitted to operate the machines and Manufacturing Unit which has suffered the loss to assessee as well as to the revenue loss to the Government.
Review petition dismissed.
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2023 (12) TMI 1332
CENVAT Credit - Goods Transport Agency [GTA] (outward Transport) service - whether the hearing and resolution of the issue referred to the Larger Bench be continued at the instance of the intervener or as the case of the appellant has been settled under SVLDRS subsequent to reference, the appeal be returned to the Referral Bench for disposal without answering the reference?
HELD THAT:- The present reference to the Larger Bench is on the issue of admissibility of CENVAT credit on the service tax paid on GTA (outward transportation of goods) service after delivery of the judgment of the Supreme Court in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] and the Circular of the Board dated 08.6.2018. Thus, resolution of the reference by the Larger Bench would not be limited to the appeal in which the reference has been made, but would have implication on all appeals pending before other Benches of the Tribunal involving same issue and are awaiting the outcome of the present reference.
The decision in M/S KARAIKAL PORT PVT LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUDUCHERRY [2015 (1) TMI 87 - CESTAT CHENNAI] is neither relevant nor applicable to the present circumstances. In that case, the applicant sought permission to be impleaded as a necessary party in the appeal filed by the Port Department, Karnataka on the ground that on confirmation of the service tax demand against the Port Department a notice was issued for recovery of the confirmed service tax. Consequently, the applicant approached the Tribunal to allow them to intervene in the appeal. The application was filed under Order 1 Rule 8A of the First Schedule to the Code of Civil Procedure.
In a case where clearances of goods are against FOR contract basis, the authority needs to ascertain the ‘place of removal’ by applying the judgments of the Supreme Court in COMMISSIONER CENTRAL EXCISE, MUMBAI-III VERSUS M/S. EMCO LTD. [2015 (8) TMI 200 - SUPREME COURT] and COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. [2015 (4) TMI 857 - SUPREME COURT], the decision of the Karnataka High Court in BHARAT FRITZ WERNER LTD. AND MAPAL INDIA PRIVATE LIMITED VERSUS THE COMMISSIONER OF CENTRAL TAX, BANGALORE [2022 (7) TMI 352 - KARNATAKA HIGH COURT], and the Circular dated 08.06.2018 of the Board to determine the admissibility of CENVAT credit on the GTA Service upto the place of removal.
The reference is answered, accordingly. The appeal shall now be listed before the Division Bench for hearing.
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2023 (12) TMI 1328
Dismissal of appeal for no-prosecution - notice was sent to the appellant’s address, but returned as undelivered by the postal authority with the remark of “No Such Person” - HELD THAT:- It is seen from the records that the matter has been adjourned on previous occasions also i.e. on 29.08.2023, 29.09.2023, 30.10.2023, 24.11.2023 and is listed today i.e. 18.12.2023. On all the occasions, none appeared for the appellant nor any request for adjournment has been made. It seems that the appellant is not serious in prosecuting their appeal.
Consequently, the appeal is dismissed for non-prosecution.
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2023 (12) TMI 1324
Refund on export of scientific and consultancy service received from M/s. SPIL and M/s. SPARC for manufacture of final product under Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 27/2017-CE (NT) dated 18.06.2012 - HELD THAT:- It is found that in respect of same input service in the same set of facts, in the appellant’s own case refund was allowed by this Tribunal in Pushpendra Kumar Jain and Unimed Technologies Ltd Versus C.C.E. & S.T. -Vadodara-II [2020 (1) TMI 996 - CESTAT AHMEDABAD], where it was held that 'it cannot be correct to say that the service provided by the SPIL was not used by the appellant. The revenue’s argument is that the entire service was provided on the date of invoice is totally fallacious and illogical. Thus, we hold that the appellants received and consumed the service while they were participating in the development of technology by supervising and monitoring the same.'
From the above decision in the appellant’s own case it can be seen that the issue in the present case and the case cited above is identical. In view of above decision the issue in hand stands settled and the issue is no longer res-integra. Accordingly, following the above decision of this Tribunal in the present case impugned orders are not sustainable. Hence the same are set aside.
Appeal allowed.
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2023 (12) TMI 1303
CENVAT Credit - Inputs used for repairing and maintenance of the plant and machinery, as capital goods. - eligible inputs for availing credit under the relevant Modified Valued Added Tax (Modvat) and Central Value Added Tax (Cenvat) Credit Rules, as amended from time to time or not - HELD THAT:- In view of the settled legal position, the interpretation of the expression “used in or in relation to manufacture” is of a very wide import and takes within its scope and ambit all items used in the process of manufacture whether directly or indirectly and whether contained in the final product or not. The items used for maintenance of plant and machinery are also items used in the manufacture of finished goods. Hence, credit on the items used for maintenance, repair, upkeep or fabrication of plant and machinery are admissible to the assessees.
The credit on welding electrodes and other items such as jointing sheets, SS plates etc. used for maintenance, repair, up-keep or fabrication of plant and machinery are admissible to the assessees.
Appeal allowed.
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2023 (12) TMI 1290
Eligibility for refund/ self-credit - Area-based exemption under Notification No.56/2002 dated 14.11.2002 as amended - Department was of the opinion that under Section 3, no refund/ self-credit was available as the said Cesses have not been exempted under the Notification No.56/2002.
The impugned order considers the self-credit taken by the appellants as “erroneous” credit and confirms the demand of the same in terms of Section 11A of Central Excise Act, 1944 along with interest and penalty under Section 11AC ibid.
HELD THAT:- The impugned order cannot be sustained and is accordingly set aside. Hence, the appeal is allowed.
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2023 (12) TMI 1240
Refund claim - refund rejected solely on the ground that the TR6 challan, evincing payment of duty, had not been furnished - HELD THAT:- The issue of documentation prescribed under section 11B of Central Excise Act, 1944 for claiming of refunds came before the Tribunal in MAHARASHTRA STATE ELECTRICITY BOARD VERSUS COMMR. OF C. EX., NAGPUR [2004 (4) TMI 368 - CESTAT, MUMBAI] and it was held therein that The respondent has no case that the appellants have claimed refund of duty unduly or with any oblique purpose. The appellant is a public body and it can have no oblique motives. The orders of the lower authorities are set aside in so far as the refund claims in question are concerned. The claims are allowed.
The issue is the same as that in the dispute of the appellant for similar refund. It would appear that the lower authorities had erred in insisting upon the original document as proof of discharge of duty liability even though available with the central excise authorities - the impugned order is set aside and the application restored to the original authority for fresh determination of the application for sanction in consequence of judicial determination of non-excisability.
The appeal is allowed by way of remand.
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2023 (12) TMI 1239
Levy of Central Excise Duty - inclusion of sales tax concession retained by the assesses in the assessable value or not - extended period of limitation - penalty - HELD THAT:- The issue is no more res integra as the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS [2014 (3) TMI 42 - SUPREME COURT], has held that the sales tax concession retained by the assesses is required to be added in the assessable value for the purpose of levy of Central Excise duty. By relying on the above decision of the Hon’ble Supreme Court, we hold that the sales tax concession retained by the Appellant is required to be added in the assessable value for the purpose of levy of Central Excise duty.
Since the Appellant has not collected the duty separately from the customers, the amount collected is to be treated as inclusive of duty - the demand for the normal period is to be computed by taking the amount collected as cum-duty.
Penalty - HELD THAT:- The appellant cannot be faulted for not including the same in the assessable value. In the impugned order, the adjudicating authority while agreeing that extended period not invocable in this case, imposed penalty equal to the duty confirmed under Section 11AC of the CEA, 1944 - the adjudicating authority has not given any proper finding for imposing penalty under Section 11AC. Accordingly, the penalty imposed under Section 11AC not tenable.
Extended period of limitation - HELD THAT:- In the present case, it is observed that the Adjudicating Authority has failed to show any positive act of suppression on the part of the Appellant. The details of VAT collected and retained by the Appellant are reflected in the audited Profit & Loss account and balance sheet of the impugned periods. Accordingly, by following the above Circular issued by the Board, it is held that extended period not invocable in this case and for the same reason penalty under Section 11AC of the CEA, 1944 also not imposable.
The appeal is disposed by way of remand for calculating the duty, payable for the normal period of limitation, with consequential relief, if any, as per law.
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2023 (12) TMI 1238
Reversal of cenvat credit - used/rejected capital goods on which Cenvat credit has not been taken are cleared as waste and scrap - transaction value as per Rule 3(5A) of the Cenvat Credit Rules - HELD THAT:- On going through the provisions of Rule 3(5) and 3(5A) of the Cenvat Credit Rules. A perusal of these Rules 3(5) and 3(5A) reveal that the expression "the capital goods" available in Rule 3(5A) refers to the capital goods on which Cenvat credit has been taken - Rule 3(5) provides for a situation where such capital goods are removed “as such” from the factory or premises of the provider of output service. Rule 3(5A) deals with a situation when such capital goods are cleared as "waste and scrap". It is apparent that both the provisions of Rules 3(5) and (5A), are concerned with capital goods on which Cenvat credit has been taken.
As the Appellant has not availed any credit on these rejected capital goods cleared as scrap, we hold that the provisions of Rule 3(5) and 3(5A) are not applicable in this case - the demand of duty confirmed in the impugned order is not sustainable. Since, the demand of duty itself is not sustainable, the question of demanding interest or imposing penalty does not arise.
The impugned order set aside - appeal allowed.
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2023 (12) TMI 1237
CENVAT Credit - inputs or not - wielding electrodes used in their factory premises towards repairs and maintenance activities - HELD THAT:- The Rajasthan High Court in the case of HINDUSTAN ZINC LTD. VERSUS UNION OF INDIA [2008 (7) TMI 55 - RAJASTHAN HIGH COURT] has held the expression “in the manufacture of goods” should normally encompass entire process carried on by the dealer, of converting raw materials into finished goods, where any particular process, or activity, is so integrally connected with the ultimate production of the goods, but for that process, manufacturing, or processing of the goods would be commercially inexpedient, goods required in that process would, fall within expression “in the manufacturing of goods”.
The Chhattisgarh High Court in the case of CST, Bilaspur Vs. Singhal Enterprises Pvt. Ltd. [2017 (7) TMI 1112 - CHHATTISGARH HIGH COURT] has held Welding Electrodes used in the manufacturing process are considered as inputs.
Since the present issue is squarely covered by the above decisions of the Hon’ble High Court, respectfully following them, the present Appeal is allowed.
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2023 (12) TMI 1209
Levy of penalty - wrongly passing on the Modvat Credit - HELD THAT:- The Tribunal found no reason to interfere with the Order-in-Original bearing in mind the fact that while the appellant was purchasing scrap from Maruti Udyog at the rate of Rs. 9000/- − 10000/- MT, it was selling the same at the rate of Rs. 7000/- − 9000/- MT. Although before the original authority, the appellant appears to have set up a case of having graded the scrap according to quality and value, the said Authority had on a due appreciation of the evidence led, found no basis to accept that explanation and consequently proceeded to levy the penalties.
The issues that are raised principally relate to an appreciation of evidence and since no question of law appears to arise, the appeal shall stand dismissed.
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2023 (12) TMI 1208
CENVAT Credit - trading activities/exempt services - Management Consultancy Service - service is used exclusively in or in relation to the manufacture of exempted goods or providing exempted service - absence of ISD registration at the time of availing credit - extended period of limitation.
CENVAT Credit - trading activities/exempt services - Management Consultancy Service - service is used exclusively in or in relation to the manufacture of exempted goods or providing exempted service - HELD THAT:- As far as admissibility of cenvat credit of trading activity, the Hon’ble Madras High Court in Ruchika Global Interlinks [2017 (6) TMI 635 - MADRAS HIGH COURT] held Having regard to the rule, position and given the admitted fact that no separate accounts were maintained by the appellant, with regard to the taxable and non-taxable services, clause (c) of sub-rule (3) of Rule 6 of 2004 Rules would apply.
Further, the Hon’ble Delhi High Court in Lally Automobiles Pvt. Ltd. [2018 (7) TMI 1679 - DELHI HIGH COURT] held In the present case, the assessee’s argument that there is no mechanism to reverse credit, once taken, in the opinion of this Court, cannot be accepted. The assessee was well aware of the exact nature and extent of its service tax liability. It was also aware of the eligible service tax inputs. Therefore, when it did claim successfully and unchallenged input credits in respect of activities that were not subjected to service tax levy, it was aware that the claim was excessive and could not be justified.
Extended period of Limitation - HELD THAT:- On the issue of invoking extended period of limitation on similar circumstances, lordships of Delhi High Court held that Being conscious of its trading activity and that it was not liable to service tax (since it did not include the amounts earned from that business, in its returns) meant that the assessee was aware of what it was doing. It cannot now take shelter under the plea that non-trading activity was expressly exempt from claiming credit, in 2011. That amendment made no difference, given that trading was never taxable under the Finance Act, 1994. In these circumstances, the Revenue was justified in invoking the extended period of limitation in this case - Thus, the confirmation of demand with interest by the learned Commissioner invoking extended period of limitation on cenvat credit availed on trading activity is upheld.
CENVAT Credit - absence of ISD registration at the time of availing credit - HELD THAT:- The issue is also covered by the judgment of the Hon’ble Karnataka High Court in the case of Hinduja Global Solutions Ltd, [2022 (4) TMI 71 - KARNATAKA HIGH COURT]. Their Lordships following the judgment of Hon’ble Gujarat High Court and Madras High Court, held that cenvat credit cannot be denied to the assessee prior to its registration as an ISD, since the same is procedural irregularities - the appellant is entitled to avail cenvat credit of Rs.15,83,168/-.
Thus, the impugned order is modified to the extent of confirming inadmissible cenvat credit of Rs.79,22,225/- attributable to trading activity and applicable interest of Rs.15,38,789/- paid on the said credit amount; since the cenvat credit and applicable interest is paid much before the issuance of show-cause notice, the appellant is entitled for the benefit of 25% of penalty imposed under Section 11AC of the Central Excise Act read with Rule 15(4) of CENVAT Credit Rules, 2004 - demand of cenvat credit of Rs.15,83,168/- confirmed with interest and equivalent penalty before ISD registration is hereby set aside.
Appeal disposed off.
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2023 (12) TMI 1207
Calculation of Excise duty - includability of the sales tax concession retained by the Appellant in the assessable value for the purpose of levy of Central Excise duty - suppression of facts or not - extended period of limitation - penalty - HELD THAT:- The Appellant has not suppressed any information from the department. There were decisions of the Tribunals that the sales tax concession retained by the assesses is not required to be added in the assessable value for the purpose of levy of Central Excise duty. Thus, it is observed that the appellant cannot be faulted for not including the same in the assessable value. As there is no evidence of suppression of facts available on record, it is held that the demand confirmed by invoking the extended period is liable to be set aside.
In the present case, it is observed that the Adjudicating Authority and the Appellate Authority has failed to show any positive act of suppression on the part of the Appellant. The details of VAT collected and retained are reflected in the audited Profit & Loss account and balance sheet of the impugned periods. Therefore, we hold that extended period of limitation as provided under section 11A(4) of the Central Excise Act, 1944 cannot be invoked for recovery of the short paid duties. The Circular issued by the Board also supports this view. Following the above Circular issued by the Board, the extended period cannot be invoked in this case to demand duty. Accordingly, penalty also not imposable in this case.
The appeal is disposed by way of remand for calculating the duty, payable for the normal period of limitation, with consequential relief, if any, as per law.
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2023 (12) TMI 1206
Exemption to goods manufactured in a factory workshop and used for the maintenance of machinery installed in the factory - Exemption to capital goods and inputs captively consumed within the factory of production - applicability of N/N. 65/95-CE and 67/95-CE - denial of benefit on the ground that acetylene gas has not been manufactured in the workshop - denial also on the ground that acetylene gas has been used for repair and maintenance of machineries that are not used for the manufacture of final goods, the exemption will not be applicable.
HELD THAT:- The Appellant claimed the exemption of captively consumed acetylene gas under the Notification 65/95 as well as under 67/95. The adjudicating authority has denied the exemption for the acetylene gas consumed within the factory for repair and maintenance of railway track, railway wagon, loco and in certain shops and departments for repair and maintenance of machineries under the Notification 65/95. However, it is observed that they are eligible for the exemption under the notification 67/95, since the said railway track, rail wagons, and locomotives are integral to the manufacture of the goods - The inability to transport the inputs and intermediate products in the absence of rail traffic will cause stoppage of production and can also result in damage of the plant and machinery.
The said railway track, rail wagons, and locomotives are integral to the manufacture of the goods of the Appellant and are therefore they can be considered as machineries installed in the factory for the manufacture of the goods. It is observed that Notification 67/95 exempts from payment of duty all goods specified therein manufactured in a factory and used within the factory of production in or in relation to manufacture of final products. The scope of this notification is wide enough to cover the acetylene gas manufactured by the Appellant and used in the traffic department for repair and maintenance of railway track, wagons etc., and the acetylene gas used in 26 shops/departments for repair and maintenance of machineries.
The issue of whether railway tracks used in the plant form a part of manufacture is no longer res-integra since the Hon’ble Supreme Court in the case of M/S JAYASWAL NECO LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2015 (4) TMI 569 - SUPREME COURT] held the use of railway tracks inside the plant not only form the process of manufacturing, but it is inseparable and integral part of the said process inasmuch as without the aforesaid activity for which railway tracks are used, there cannot be manufacturing of pig iron.
Thus, the use of railway tracks are meant for production of goods. The acetylene gas used in 26 shops/departments for repair and maintenance of machineries was also used in connection with the manufacture of the finished goods for the Appellant - the Appellant is eligible for the benefit of exemption notification no. 67/95-CE. Hence, the demand confirmed in the impugned order by denying the benefit of exemption notifications 65/95 or 67/95 is not sustainable.
The impugned order set aside - appeal allowed.
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2023 (12) TMI 1143
Service of SCN - Whether the provision of rule 776 of the Manual was adhered to and any notice under section 74-A(1) was given before passing the order? - HELD THAT:- Once the initiation of the proceedings itself is bad, the consequential proceedings automatically fails in the eyes of law. Matter requires consideration.
Learned ACSC may file counter affidavit within a period of four weeks from today. Rejoinder affidavit, if any, may also be filed one week thereafter - List immediately thereafter.
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2023 (12) TMI 1142
Seeking rectification of alleged mistakes - No finding has been recorded on the appellant’s submission contesting imposition of 100% penalty under section 11AC read with Rule 25 of Central Excise Rules, 2002 - interpretation of Exemption NN 12/2012 dated 17.3.2012 - Extended period of limitation - HELD THAT:- The appellant contested the impugned order on three grounds- (a) that it was eligible to the benefit of the exemption notification; (b) extended period of limitation was wrongly invoked in the confirming the demands; and (c) if the matter is decided against it, CENVAT credit on inputs may be allowed. Insofar as the extended period of limitation is concerned, the appellant listed the findings of the Commissioner and contested them.
In the final order, the confirmation of demands by the Commissioner were upheld. The question of the CENVAT credit was addressed in the Miscellaneous order dated 30.9.2022. Since the confirmation of the demands by the Commissioner were upheld, it was stated in the miscellaneous order dated 30.9.2022 that penalty under section 11AC also needs to be upheld. The ground which is now sought to be raised that since the demands which were confirmed were within the normal periods of limitation, despite the finding of the Commissioner that there was wilful suppression of facts, penalty under section 11AC cannot be invoked was not part of the appeal. The appellant cannot, in the second application for rectification of mistake, now raise a new ground which was not part of the appeal.
Extended period of limitation - HELD THAT:- It needs to be pointed out that while demands for extended period of limitation cannot be confirmed where there is no fraud, collusion, wilful misstatement or suppression of fact, demand for a short period of say, one year, can be confirmed even when these elements of fraud, collusion, wilful misstatement or suppression of facts, etc., are present Nothing prevents confirmation of demands for shorter period even if these elements are present. Having found that these elements were present in the case (as recorded by the Commissioner and reproduced in the appeal), if demands are raised or confirmed for a shorter period, it does not mean that these elements are not established.
There are no error apparent on record - this application for rectification of mistakes is rejected.
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2023 (12) TMI 1141
Maintainability of appeal - non-prosecution of the case - Matter has been listed quite a number of times in the past and appellant has been abstaining from attending the hearing or seeking adjournment - HELD THAT:- Today the matter on request has been listed for E-hearing as per the request made by the appellants on 06.11.2023. Appellants has abstained without any request for adjournment.
There are no justification for adjourning the matter any further as these appeals have been adjourned more than the prescribed maximum number statutorily provided.
The Appeals are dismissed for non prosecution in terms of Rule 20 of CESTAT Procedure Rules, 1982.
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