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Central Excise - Case Laws
Showing 41 to 60 of 94 Records
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2023 (3) TMI 946
Disallowance of taken CENVAT Credit on clean energy cess levied on coal - seeking recovery along with interest under section 11AA and imposed penalty under Rule 15 (1) of Cenvat Credit Rules, 2004 read with section 11AC - HELD THAT:- The issue involved in this appeal is identical to the issue involved in respect of the same appellant in M/S ACC LIMITED VERSUS COMMISSIONER OF C.G.S.T. & C.E. JABALPUR [2019 (6) TMI 1192 - CESTAT NEW DELHI]. It was held in the final order that the appellant was not entitled to Cenvat credit on the clean energy cess paid by it and accordingly the appeal was dismissed.
There are no reason to take different view in this appeal - the appellant was not entitled to Cenvat credit of the clean energy cess paid - appeal dismissed.
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2023 (3) TMI 945
Demand of interest and penalty u/r 25 of Central Excise Rules, 2002 - Levy of Excise Duty as per Notification No.62/1995-CE dated 16.03.1995 - notification has been rescinded or not - HELD THAT:- Ld. Counsel has explained that the appellant is a Central Government undertaking and had omitted to pay the excise duty only because they were under the bonafide belief that the goods cleared by them (railway coaches) are exempted from excise duty as per notification. They have paid the duty on 31.01.2012. The appeal is filed against the demand of interest.
There are no ground to set aside the demand of interest. As rightly argued by Ld. A.R in the decision of the Hon’ble High Court of Bombay relied by Ld. Counsel for appellant in WATER RESOURCES DEVELOPMENT FORMERLY KNOWN AS IRRIGATION, VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2021 (12) TMI 427 - BOMBAY HIGH COURT] the question is whether the demand under the SCN is barred by limitation or not - In the case on hand, the demand raised is within the normal period. Further, there is no penalty imposed under Section 11AC of the Central Excise Act, 1944. The Commissioner has considered all the facts and imposed penalty of Rs.10,000/- only.
There are no grounds to interfere with the demand of interest and imposition of penalty - appeal dismissed.
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2023 (3) TMI 944
Refund claim - export of goods - input services - documentation charges and agency fees - draft survey charges - bunker survey charges - sampling and analysis charges for export of excisable goods i.e. Cement - applicability of N/N. 52/2011-ST dated 30.12.2011 - HELD THAT:- There is no dispute about the use of these services for export of goods. The only dispute raised by the appellant is that classification of services is not correct. Revenue cannot raise objection challenging the classification at the recipient end which is a settled law. On this ground refund cannot be denied.
The same issue has been considered by this Tribunal in the order dated 12.02.2013 [2013 (4) TMI 461 - CESTAT AHMEDABAD] wherein it was held that The entire exercise of the Revenue to reject the refund claim is non-starter in as much as it is settled law that the classification of the product or services at the recipient's end cannot be done so by the authorities. In the case in hand, I find that the classification of Technical Testing & Analysis and Customs House Agent's services are being sought to be classified under various other services and refund is sought to be rejected. This is not in consonance with the law which has been laid down by various judicial pronouncements.
The issue is no longer res-integra - Appeal allowed.
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2023 (3) TMI 888
Refund of CENVAT duty paid - Section 114 read with Order XLVII Rule 1 of the CPC - collecting education cess and higher education cess on such goods which were exempt from payment of excise duty - HELD THAT:- The taxpayer having set up a manufacturing unit in the State of Tripura availed the benefit of duty exemption on the goods cleared from such manufacturing and pursuant to the Government of India policy to encourage industrial investment and growth in North Eastern region. The taxpayer contended that since the basic duty of excise was not payable, the additional charge of education cess and higher education cess also cannot be collected. Based on the decision of the Supreme Court in case of SRD Nutrients [2017 (11) TMI 655 - SUPREME COURT], the petitioners made refund claims for refund of education and higher education cess. Such refund application was allowed by the Assistant Commissioner. However, soon thereafter, in the decision in case of Unicorn Industries [2019 (12) TMI 286 - SUPREME COURT] the Supreme Court held and observed that the decision in case of SRD Nutrients was per incuriam.
The review petitioners has submitted that department has already moved an application for modification of the judgment rendered in the case of SRD Nutrients Pvt. Ltd. According to him, the Hon’ble Apex Court has issued notice and the Assessee has filed its counter. Bajaj Auto has also moved an intervener application. It is the endeavour of the Union to bring SRD in line with Unicorn, which is a larger Bench judgment delivered subsequently and holding both SRD Nutrients and Bajaj Auto to be Per Incuriam. Let the Hon’ble Supreme Court allow the modification application, then the ration in SRD would also get modified. The matter shall be argued before Hon’ble bench shortly. Hence, the present review petition have been filed against the judgment dated 12.01.2021 with a specific prayer that the matter may be adjourned sine dine till the modification application is decided by the Hon’ble Apex Court.
The ground as raised by the review petitioner is not satisfactory and hence, the prayer made in this review petition stands rejected - the present review petition stands dismissed.
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2023 (3) TMI 887
CENVAT Credit - capital goods or not - structural steel used for erection of poles for transmission of electricity from MSEB feeder to factory and vice versa and for supporting other capital goods - delay in issuance of SCN - time limitation - HELD THAT:- No justification has been provided by the department regarding the delay in issuing the show cause notice. Although the alleged irregularity has come to the notice of the department in the month of March, 2014 and the statement were also recorded during that month only, but still the show cause notice was issued much belatedly on 29.4.2016 without assigning any reasons for delay in issuance. In view of precedents by virtue of various decisions of this Tribunal the same ought to have issued within one year from the date of the knowledge about the alleged irregularity - no suppression can be alleged against the appellant and extended period cannot be invoked nor the penalty be imposed on that count. Since complete information was given in statutory returns the normal period of one year would be applicable whereas the proceedings are initiated at a later date and hence the demand is barred by limitation.
Credit availed by the appellants on MS Angles, MS Beams, MS channels and poles for wire for transmission of electricity from MSEB feeder to the factory manufacturing sugar and vice versa - denied on the ground that it is outside factory premises and not eligible capital goods - HELD THAT:- It is not disputed that the poles etc. were used for supplying electricity in the factory for the purpose of manufacture sugar and it’s by product molasses etc. For running the machinery electricity is essential without which there will be no production. The poles might be outside the factory but for the purpose of manufacturing activity inside the factory. The location is not of much relevance here but the purpose.
Steel items - HELD THAT:- It is the case of the appellant that they have been used for supporting structure of the machinery and also for erection of poles for transmission of electric energy from MSEB feeder to factory and vice versa and since nothing contrary has been produced on record anywhere therefore in my view the same is treatable as accessories and would fall within the definition of capital goods as provide by Section 2(a) ibid being the components/ parts/accessories of the capital goods which are specifically covered within the definition irrespective of its classification. Therefore the credit of Rs.2,49,920/- availed on MS Beam, MS channels is also admissible.
The demand is set aside on merits as well as on the ground of limitation - Appeal allowed.
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2023 (3) TMI 886
Levy of penalty u/r 26 (1) of Central Excise Rules, 2002 - clandestine removal - allegation mainly based on some diaries recovered from brokers and follow up action was taken upon various manufacturers mentioning in the said diaries of the brokers - HELD THAT:- The present appellants were also involved in the case of Shri Hari Steel Industries and also in the case of M/s. Pure Alloys Ltd. in the said cases the Tribunal has taken a view that the appellants are not liable for the penalty. The common investigation was carried out in the present case and cases of M/s. Pure Enterprises Pvt Ltd, [1999 (1) TMI 146 - CEGAT, MUMBAI] M/s. Pure Alloys Ltd and Shri Hari Steel Industries [2022 (8) TMI 1251 - CESTAT AHMEDABAD]. It is also observed that same statements, evidences such as broker’s diaries etc were relied upon in all the cases, therefore, facts of all the three cases are absolutely identical. Since this Tribunal has already taken a view regarding penalty on the appellant in this Tribunal’s orders, the penalty in the present case is also not sustainable.
The decision of this Tribunal in the case of Himanshu Nandalal Jagani & Ors [2022 (9) TMI 428 - CESTAT AHMEDABAD], relied upon where it was held that It is seen from the said slips that there is no mention of the manufacturer’s name and therefore there is no direct correlation with the main noticee in this case, namely Pure Alloys Limited. Moreover, it is seen that there was no examination in chief or cross examination done and therefore, the only link between these weighment slips and the alleged manufacturer namely Pure Alloys, is the statements of Juvansinh Jeshabhai Solanki and Nareshbhai Ramsang Rana which cannot be admitted as evidence in absence of Examination under Section 9D of Central Excise Act. In these circumstances, no penalties in respect of these weighment slips also can be imposed.
From the above order of this Tribunal it can be seen that identical facts and issues were involved in the above cases of M/s. Pure Alloys Ltd, Shri Hari Steel Industries , Bansal Castings wherein all the present appellants were implicated as a common person. Therefore, following the aforesaid order the penalty in the present case is not sustainable.
Penalties set aside - appeal allowed.
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2023 (3) TMI 885
CENVAT Credit availed on plant and machinery used in the manufacture of coke briquettes - capital goods have been used in the manufacture of exempted goods i.e. briquette classified under Tariff Item 2701 20, which attracts NIL rate of duty - eligibility under Rule 6 (4) of the Cenvat Credit Rules, 2004 - HELD THAT:- There is no dispute that even though plant and machinery on which credit was availed as capital goods though they were used in the manufacture of bricks which in turn used in the manufacture of final product i.e. soda ash and the same was cleared on payment of duty. In this fact, in the considered view it cannot be said that the capital goods were used exclusively for manufacture of exempted goods. This is for the reason the process of manufacture of soda ash is consist of various processes and the entire process is considered to be the process of manufacture of Soda ash which is indeed cleared on payment of duty. Therefore, the provision of Rule 6 (4) of CCR is not applicable in the present case. The said provision is applicable only when the final product in which the capital goods is used is exclusively, cleared under exemption.
Reliance placed in the case of ISPAT METALLICS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIGAD [2005 (7) TMI 225 - CESTAT, MUMBAI] where it was held that The word “used” can denote be intermittent and/or use sometime in future; we find that both sides agree that the appellants are a manufacturer of declared final products Iron and Steel and have the capacity or potential to use iron ore fines also. Therefore credit as over led cannot be denied.
In view of the above judgment, an identical issue has been considered that only because the capital goods is used for exempted intermediate goods, the cenvat credit cannot be denied when the final product is cleared on payment of duty.
The appellant is entitled for cenvat credit on capital goods in the given facts of the present case - Appeal allowed.
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2023 (3) TMI 833
Sale of goods through depot - Valuation - Refund of excess payment of duty (made on account of Discounts) - rejection of refund claim merely on the ground that the appellant have not opted for the provisional assessment - Removal of goods from factory on presumptive value - principle of unjust enrichment - HELD THAT:- The appellant have made excess payment of duty on account of discount. The discount was given at the time of sale of the goods from the depot. There is no dispute about the nature and quantum of discount. The removal of goods from the factory is on presumptive value and the transaction value is finalized only at the time of sale of goods from the depot. Therefore, the discount given by the appellant at the time of sale of goods from the depot is legal and correct and the same shall not be includible in the assessable value. Accordingly, if there is any excess payment of duty in comparison with the value at which the goods were cleared from the factory and the same goods sold from the depot , the appellant is primafacie entitled for the refund.
Non-opting for the provisional assessment - HELD THAT:- Firstly the same was not made charge in the show cause notice therefore the order travels beyond the scope of show cause notice which is not permissible under the law as settled in various judgments cited by the appellant. Secondly, merely because the appellant has not opted for the provisional assessment the legal provision for valuation will not get altered. The duty is payable in accordance with the Section 4 of Central Excise Valuation Rules , 2000. In terms of Rule 7 the excise duty is payable at on the value at the time of sale of goods from depot after removal from the factory. Therefore, on the differential excise duty due to the difference between the clearance value from the factory and the sale value from the depot is refundable to the appellant.
It is settled by the Hon’ble High Court of Madhya Pradesh in the case of THE PRINCIPAL COMMISSIONER CGST AND CENTRAL EXCISE HEADQUARTERS BHOPAL VERSUS M/S GODREJ CONSUMER PRODUCTS LTD. [2019 (5) TMI 222 - MADHYA PRADESH HIGH COURT] that merely because the appellant have not followed the provisional assessment, the methodology adopted for adjustment of excess payment of duty cannot be questioned. Therefore, even though the appellant have not opted for the provisional assessment , the admitted excess payment of duty has to be refunded to them.
Principle of unjust enrichment - HELD THAT:- The appellant have submitted the Chartered Accountant Certificate and JV Entries whereby it is established that the incidence of duty for which the refund was sought for has not been passed on.
Thus, the appellant is prima facie entitled for the refund subject to verification of the documents - the impugned order set aside and matter remanded to the Adjudicating Authority for passing a fresh order - appeal allowed by way of remand.
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2023 (3) TMI 832
Refund of duty paid - remission of duty - shortage in quantity or not - rejection of refund claim on the ground that the word ‘whatsoever’ in condition 2(v) of the Commissioner’s letter dated 03.10.2018 was much enough to cover the expansion and contraction of the hydrocarbon fuels which was natural/scientific phenomenon - the plea of the appellant is that there is no difference in the overall quantity difference which was pointed out by the department is not of the physical shortage but due to contraction in the goods which occurs due to difference in the temperature.
HELD THAT:- From the reading of the Circular No.778/11/2004-CX dated 11.03.2004 and Circular No. 367/83/97-CX dated 19.12.1997, though it is not directly on the fact in the present case but it establishes that due to temperature variation, the petroleum product gets contracted and due to which there is variation in the quantity of the same quantum of the goods between one temperature and other temperature therefore, the fact that the petroleum product gets contracted is not under dispute. In the present case, it is admitted fact the weight of the product remains unchanged or very minor difference as compared to the difference shown in K15 and KL of a liquid product which obviously varies at a time of a particular temperature and at different time at a different temperature, the appellant have also shown that the temperature at the time of loading and unloading where different - there is shortage of quantity in KL whereas, quantity in MT is almost same except the variation in 0.847 MT as against the total weight of 64030.568 MT which is negligible. As per the above table, it can be seen that when the total quantity of goods in weight is same and the quantity in KL varies at different time due to different temperature, there is absolutely no case of shortage or loss of the goods.
Thus, it is clear that if there is physical loss due to handling, transit, storage or in case of accident or natural calamity or whatsoever, no remission shall be permitted. In the present case, as discussed above the quantity of goods in weight stand intact therefore, in fact there is no loss of the goods, para 2(v) shall apply only in a case where there is actual loss in the quantity. In the present case, the quantity remains the same, the variation in KL is only due to density of the goods that due to different temperature at the time of loading and unloading therefore, it cannot be said that there is any loss of quantity of the goods consequently, there is no violation of para 2(v) of the Commissioner’s letter dated 03.10.2018.
Remission of duty - HELD THAT:- This will come into picture only when there is actual loss and appellant seeks remission of duty - In the present case since there is no loss at all, there is no question of seeking remission therefore, the process of remission of duty is not relevant in the present case.
Since there is no loss of the goods at loading and unloading as stage, no duty demand is sustainable accordingly, the duty so paid by the appellant is required to be refunded to the appellant.
Unjust enrichment - HELD THAT:- The appellant have accepted that the amount of refund shown as received in their books of accounts therefore, they have satisfied that the incidence of refund amount has not been passed on to any other person.
Appeal allowed.
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2023 (3) TMI 827
Applicability of exemption Notification No. 4/2006-CE dated 1.3.2006 at Sl. No. 72 - matches classifiable under Chapter 3605.00.10 or 3605.00.90? - HELD THAT:- The issue involved in these appeals has been already settled in favour of the Revenue by this Tribunal by denying exemption under Notification No. 4/2006-CE dated 1.3.2006 in the case of M/S SRI GANAPATHY PACKAGING VERSUS THE COMMISSIONER OF GST & CENTRAL EXCISE [2020 (2) TMI 1114 - CESTAT CHENNAI].
The facts and issue being identical in these appeals, there are no ground to take a different view - the demands were sustained and the assessees appeals were dismissed.
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2023 (3) TMI 800
Exemption from excise duty in regard to supplies of high speed diesel (HSD) manufactured and supplied by BPCL - Withdrawal of benefit of Notification No. 108/95 CE dated 28.08.1995 by virtue of a subsequent Notification bearing No.10 of 2017-Central Excise dated 30.06.2017 - Government is satisfied that such withdrawal of exemption was warranted in public interest - case of petitioner is that the exemption ought not to have been withdrawn during the currency of the agreement between the petitioner and TNRSP - second case of petitioner is that the Government cannot merely cite 'public interest' but must be able to establish what the specific circumstances of public interest were, that justified such withdrawal.
HELD THAT:- The case law cited by the petitioner being Birla Corporation [2019 (12) TMI 61 - SUPREME COURT] would be distinguishable for the reason that in that case the exemption notification had been issued and thereafter withdrawn even prior to the date of grant of the exemption.
In the case of Unicorn Industries [2019 (9) TMI 791 - SUPREME COURT], the three Judge Bench of the Hon'ble Supreme Court considered the similar question as to whether the withdrawal of an exemption notification would result in the benefit of the argument of promissory estoppal being available to the petitioner - Upon consideration of several judgments that have been rendered earlier, Kasinka Trading Vs. Union of India [1994 (10) TMI 64 - SUPREME COURT], Sales Tax Officer Vs. Shree Durga Oil Mills [1997 (12) TMI 114 - SUPREME COURT], Shree Durga Oil Mills vs. Sales Tax Officer [1987 (9) TMI 407 - ORISSA HIGH COURT], Shrijee Sales Corporation Vs. Union of India [1996 (12) TMI 61 - SUPREME COURT], Motilal Padampat Sugar Mills Co. Ltd. Vs. State of U.P. [1978 (12) TMI 45 - SUPREME COURT], State of Rajasthan Vs. Mahaveer Oil Industries [1999 (4) TMI 523 - SUPREME COURT], Shree Sidhbali Steels Ltd., Vs. State of U.P. [2011 (1) TMI 1248 - SUPREME COURT] & Directorate General of Foreign Trade Vs. Kanak Exports [2015 (11) TMI 80 - SUPREME COURT], the Court concluded that the modification or withdrawal of a notification in public interest would fall fully within the domain and discretion of the, public authorities, that is, either the Government or revenue authorities.
No assessee can claim an exemption as a matter of right. No doubt, in this case an exemption had been granted in respect of duty liability in respect of those projects that have been funded by the World Bank and the assessees had been availing the benefit of this exemption from 1989 onwards.
As far as the demand relating to the period post 01.07.2017, BPCL appears to have threatened the petitioner that it would invoke a bank guarantee that was in its possession though unrelated to the present contract - While the petitioner would deplore the action of BPCL in making such a threat, ultimately the payment has been effected by the petitioner to BPCL suo motu and has not been recovered by BPCL by invoking bank guarantee.
This aspect of the matter is left as such, without comment except to state that the amount as above shall remain in the possession of BPCL till a final demand is raised by the Customs Authorities - petition disposed off.
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2023 (3) TMI 799
Refund - 100% EOU - Refund of 5% excess Basic Custom duty paid - appellant submitted that during de-bonding, the appellants had paid the Customs and Excise Duties as if the goods are cleared under DTA, under protest, as directed by the Revenue on the semi-finished goods, work-in-progress and finished goods; however, the appellants are liable to pay duty, as per Sl. No. 2 of Notification No. 23/2003-C.E. - It is submitted by the Department that the appellants have paid the duty in accordance with the provisions of law and that there is no excess payment for granting refund.
Whether the appellants have made payment of excess duty and if so, whether they are eligible for refund?
HELD THAT:- In the case of CGST & CCE, TRICHY VERSUS M/S. EID PARRY INDIA LIMITED [2018 (8) TMI 1494 - CESTAT CHENNAI], the Tribunal held that the demand of duty in respect of semi-finished goods cannot sustain. The Tribunal followed the decision in the case of TIRUMALA SEUNG HAN TEXTILES LTD. VERSUS COMMR. OF C. EX. (A), HYDERABAD [2008 (9) TMI 252 - CESTAT BANGALORE] to set aside the demand.
The rejection of refund is without any legal or factual basis.
The appellants have also filed miscellaneous applications seeking consideration of the decision in the case of M/S. JUBILANT LIFE SCIENCES LIMITED VERSUS CCE, MEERUT-II [2013 (11) TMI 1213 - CESTAT NEW DELHI] and other decisions. There is no new plea put forward by the appellants and these applications are only a prayer for consideration of the application of the proposition of law laid down in these judgements. The same have already been considered.
Appeal allowed.
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2023 (3) TMI 798
Refund of differential duty paid post clearance of goods upon amended notification - enhancing rate of duty of Excise - Certain clearances were made on 12.11.2014 and 02.12.2014 during the course of the day but rates of duties were enhanced on those two dates vide Notification Nos. 22/2014-CE and 24/2014-CE respectively from its previous rate of duty applicable since 17.03.2012 as per Notification No. 12/2012-CE.
Appellant’s claim is that such notifications enhancing duties came to the knowledge of the Oil Industry very late in the evening and much after the clearance but to avoid any future complicacy, differential Excise duty basing on calculation at the higher rate as per the amended notifications were paid with a protest note.
HELD THAT:- Appellant had admitted therein that it had knowledge about such enhancement on the same day, though it came late in the evening subsequent to the clearance of goods made during the course of day upon rising of invoice with old rate of duties prevailing at the time of clearance. As could be further noticed from the order of the Adjudicating Authority and Commissioner (Appeals), there was no pleading made before them that the Notifications came on the next day of its issue and Appellant itself also came to know about the same through the RTI application reply received in 2019. Even this fact of publication of both the Notifications on the next day of its issue was not within the knowledge of the Appellant nor it had taken the same as additional ground of appeal though we have accepted the same as additional piece of evidence and taken the same on record as those are issued by the office of the Director of Publication which is a public authority for which RTI reply can be put in the category of public documents.
The submissions of learned Authorised Representative that the Notifications were issued and uploaded in the website of CBEC is acceptable for the reason that Appellant also admitted to have knowledge about such amended Notification that reached the Oil Industries in the late evening but going by sub-Section (5) of Section 5A, Issued for publication and completion of publication in the Gazette of India are pre-conditions before the same is offered for sale. Therefore, uploading in the website of the CBEC cannot alone attach enforceability to those Notifications.
By the time order was passed by the Commissioner (Appeals), except on issue of unjust enrichment which Appellant’s claimed to have crossed the bar in its refund application itself by annexing sample copies of the invoices with realisation of tax at the old rate, no illegality or irregularity could be noticeable therein but having regard to the fact that law on the issue has evolved and refined itself through judicial decisions and has become law of the land after the full Bench of the Hon'ble Supreme Court dealt the same exhaustively taking into account all judicial precedent vis-a-vis the provisions of Excise Act and Section 5A being peri materia to Section 14 and Section 25(4) of the Customs Act, we thought it expedient, just and proper to modify the order passed by the Commissioner (Appeals), so as to extend the benefits to the Appellant.
The order passed by the Commissioner of Central Excise (Appeals), Mumbai-II vide Order-in- Appeal No. PK/18 & 19/M-II/2016 dated 08.09.2016 observing that the Notification would be effective from the date of its issue is modified to the extent that the said Notifications would be effective from the date and time of its publication in its Official Gazette which were published on 13.11.2014 and 03.12.2014 respectively - appellant is entitled to the benefit of refund - appeal allowed.
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2023 (3) TMI 797
Demand of differential duty - valuation of the packaging materials manufactured in the Chennai Unit of the appellant - adjustment of excess duty paid against duty short paid on finalization of provisional assessment against the appellant - HELD THAT:- The legal issues dealt with in the impugned order have already been decided by this Tribunal, for the earlier period in M/S. ITC LIMITED VERSUS THE COMMISSIONER OF CENTRAL EXCISE [2023 (3) TMI 730 - CESTAT CHENNAI], as pointed out by learned counsel for the appellant, where it was held that Larger Bench in M/S ITC LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CHENNAI [2016 (4) TMI 280 - CESTAT CHENNAI] answered the reference, holding that the decision of the Chennai Bench of the CESTAT rendered in Final Order No. 542/2010 dated 11.05.2010 in the Revenue’s appeal against M/s. Eveready Industries Ltd. [2011 (4) TMI 141 - CESTAT, CHENNAI] and the subsequent decision of the same Regional Bench as reported in CCE, CHENNAI VERSUS M/S. EVEREADY INDUSTRIES (I) LTD. [2011 (4) TMI 141 - CESTAT, CHENNAI] represent the correct position in law - The findings of the Larger Bench are The percentage of loading on such cost of production, mandated by provisions of Rule 8 for remittance of excise duty by the Bhadrachalam unit cannot not however be considered as comprised in the cost of the raw material consumed for manufacture of packaging material and thus constituting the cost of production at the Chennai unit.
It has not been brought to our notice that the said Final Order, which pertains to the past period, has been either varied, modified or set aside as of date. Hence, there are no reason to deviate from the same for demands pertaining to the subsequent period.
Appeal allowed.
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2023 (3) TMI 736
Refund of CENVAT credit post GST era - corresponding debit to the CENVAT credit account - impossibility compliance with the conditions of Notification No.27/2012 - Export of goods - Excluding the period spent to pursue the claim at wrong forum - Section 142(3) of GST Act, 2017 - HELD THAT:- This order is patently erroneous on several grounds. Firstly, the eligibility of the petitioner to refund on a substantive basis has itself, never been questioned. The denial is based solely on a technical basis - That apart, the fact that Notification No.27/12 has been held to propound an incorrect condition by this Court as well as by the CESTAT ought to have merited consideration with the authority. Instead he does not advert to this aspect of the matter at all.
The impugned order is wholly incorrect in law and is liable to be set aside - Petition allowed.
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2023 (3) TMI 735
Valuation of goods - freight charged separately in the sale invoices of excisable goods is includible in the assessable value of such excisable goods or not - goods are to be delivered at buyer’s premises from the factory of the appellant on FOR destination basis - place of removal - HELD THAT:- There is no dispute in the fact that the appellant have cleared the goods from their factory and delivered at the buyer’s premises. In the invoice the freight was charged separately when the sell invoice was issued from the factory at the time of clearances of goods. The factory gate is the place of removal. Merely because the appellant is under obligation to deliver the goods at the buyer’s premises, the place of removal which is a factory gate cannot be extended and buyer’s premises cannot be made as place of removal.
This issue has been considered by this Tribunal in the case of SAVITA OIL TECHNOLOGIES LTD. VERSUS C.C.E. & S.T. DAMAN [2022 (7) TMI 138 - CESTAT AHMEDABAD], wherein the reliance was placed on the Hon’ble Supreme Court judgment in the case of COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR VERSUS M/S ISPAT INDUSTRIES LTD. [2015 (10) TMI 613 - SUPREME COURT]. The tribunal in Savita Oil Technologies held that buyer’s premises cannot, in law, be a “place of removal” under Section 4. In this matrix of facts, the decision of Commissioner holding buyer’s premises as “place of removal” cannot be upheld.
Thus, the freight cannot be included in the assessable value in the facts of the present case. Consequently, no demand of duty on freight would sustain - appeal allowed.
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2023 (3) TMI 730
Valuation - inclusion in the assessable value or not - IDSC/ICNC debit note raised by Bhadrachalam Unit - component of cost of raw materials of the appellant or not - unabsorbed overheads due to idle capacity - HELD THAT:- The Larger Bench in M/S ITC LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CHENNAI [2016 (4) TMI 280 - CESTAT CHENNAI] answered the reference, holding that the decision of the Chennai Bench of the CESTAT rendered in Final Order No. 542/2010 dated 11.05.2010 in the Revenue’s appeal against M/s. Eveready Industries Ltd. [2011 (4) TMI 141 - CESTAT, CHENNAI] and the subsequent decision of the same Regional Bench as reported in CCE, CHENNAI VERSUS M/S. EVEREADY INDUSTRIES (I) LTD. [2011 (4) TMI 141 - CESTAT, CHENNAI] represent the correct position in law.
The findings of the Larger Bench are The percentage of loading on such cost of production, mandated by provisions of Rule 8 for remittance of excise duty by the Bhadrachalam unit cannot not however be considered as comprised in the cost of the raw material consumed for manufacture of packaging material and thus constituting the cost of production at the Chennai unit.
Applying the dictum laid by the Larger Bench in M/S ITC LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CHENNAI [2016 (4) TMI 280 - CESTAT CHENNAI], it is held that the demand, interest and penalties cannot sustain and requires to be set aside - The issues are therefore answered in favour of the assessee.
Appeal disposed off.
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2023 (3) TMI 691
Sanctionability of refund - rejection to the effect that certificate as envisaged in the corresponding Customs Notification No. 21/2002 dated 01.03.2002 was required to be produced and further, that as duties were charged in the supply invoices, the claim would be hit by unjust enrichment.
Whether the respondent is required to produce a certificate from a duly authorized officer of the Directorate General of Hydrocarbons, as prescribed under Customs Notification No. 21/2002-Cus.?
HELD THAT:- On scrutiny of the entire records in the appeal and on the basis of very submissions made, it is very clear that the shutdown valves were supplied to M/s. ONGC on payment of duty. Though initially, the area of operation was informed as Non-Petroleum Exploration Licence / Mining Lease, subsequently the area of operation was changed to Petroleum Exploration Licence / Mining Lease.
The issue is squarely covered by the decision rendered by the Hon’ble West Zonal Bench of the CESTAT at Mumbai in KENT INTROL PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2014 (2) TMI 633 - CESTAT MUMBAI] where it was held that the appellant has satisfied condition No.19 of the Excise Notification which stipulates that the goods are exempt from duties of Customs leviable under the First Schedule to the Customs Tariff and the Additional Duty leviable under Section 3 of the Customs Tariff Act when imported into India. As regards the condition No. 29 referred to in Notification No. 21/2002, those conditions have been stipulated to be complied by the importers of goods and do not apply to domestic manufacturers.
On going through the evidences given regarding granting of lease to M/s. ONGC vide Letter No. 12012/17/2010-ONG-II issued by the Ministry of Petroleum & Natural Gas, Government of India and the Project Authority Certificate No. MR/MH/MM/HTP/48/08-09/Y18AC09001 dated 24.09.2010 for the supply of various shutdown valves by the respondent and also M/s. ONGC’s letter dated 02.03.2012 informing that as the Central Excise duty on the shutdown valves was not payable as the supplies were meant for Petroleum Exploration Leased / Mining Leased areas where licences had been renewed after 01.04.1999 in view of Central Excise Notification No. 06/2006-C.E., the Central Excise duty paid by the appellant was not reimbursed to them. They have also intimated that they would not have any objection to the appellant claiming refund for the Central Excise duty already paid.
The appeal filed by the Revenue cannot sustain and so, rejected.
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2023 (3) TMI 690
Maintainability of the appeal - validity of review order was signed separately by the two members of the Committee of Commissioners - It is submitted that the review order is bad as there is no formation of opinion in terms of section 35B(2) of CEA - CENVAT Credit - passing on the CENVAT Credit to manufacturing units of M.S. Ingots (either directly or through second stage dealers) on the basis of Central excise invoices issued by some non- existing/existing manufacturers - Opportunity of cross-examination not granted - principles of natural justice - HELD THAT:- Though at the time of the hearing of the appeal the counsel for the respondent had chosen not to argue this point, however we would like to briefly address this issue as the same stands concluded by the decision of the Larger Bench of the Delhi High Court in COMMISSIONER OF SERVICE TAX VERSUS JAPAN AIRLINES INTERNATIONAL CO. LTD. [2015 (7) TMI 824 - DELHI HIGH COURT]. The issue raised therein was identical and the Court concluded that the decision rendered by the Committee of Commissioner is an administrative function and, therefore, a meeting or a consultation is not mandatory so long as each member of the Committee has the requisite material placed before him. It was further observed that the Tribunal while acting as an appellate authority has no jurisdiction to strike down a decision taken by the Committee of Commissioners on the administrative side and the only requirement is to ensure that there is a decision of the Committee of Commissioners to institute an appeal - The objection taken by the respondent in this regard is unsustainable and needs to be rejected.
The relied upon documents in the show cause notice are mainly the statements of the manufacturers and dealers including the Director and General Manager of the assessee company which were recorded during the course of investigation - during the adjudication proceedings the assessee requested for cross examination of the persons who made these statements, however, the same was rejected by the adjudicating authority as according to him no evidence has been used against the assessee behind their back as the Director and the General Manager was given ample opportunity to examine the evidences corroborated by the statements recorded by the DGCEI and it is only after perusing the statements placed before them that they gave their testimony and further admitted the facts of wrongly availing the CENVAT credit. In fact they reversed the CENVAT credit of Rs 2,03,000/- and also assured to pay the remaining amount towards the CENVAT credit. The adjudicating authority, therefore concluded that principles of natural justice have been satisfied.
In the decision of High Court of Gujarat in COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD - II VERSUS GUJARAT CYPROMET LTD. [2013 (7) TMI 245 - GUJARAT HIGH COURT] the revenue had challenged the order of the Tribunal remanding the matter back to the adjudicating authority as no opportunity of cross examination was granted.
Thus, in the interest of justice it would be appropriate to remand the matter before the adjudicating authority to grant necessary opportunity in compliance with the provisions of Section 9D of CEA to the respondent to cross examine the witnesses relied upon by the revenue - appeal disposed of by way of remand to the original authority.
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2023 (3) TMI 689
Non-payment of Central Excise duty by debiting from the account - contravention of Rule 8(3A) of the Central Excise Rules, 2002 read with Section 11AB of the Central Excise Act, 1944 - HELD THAT:- The issue is no more res integra and is squarely covered by the judgement of the Hon’ble Calcutta High Court in the case of M/S. GOYAL MG GASES PVT. LTD VERSUS UNION OF INDIA & OTHERS [2017 (8) TMI 1515 - CALCUTTA HIGH COURT], wherein it is categorically held that when Rule 8 (3A) is declared ultra vires by the different High Courts then the Revenue cannot take a different stand contrary to the said judgements. The Hon’ble Court further declared Rule 8(3A) as invalid which is not stayed by the Hon’ble Supreme Court.
The Hon’ble Gujarat High Court in the case of INDSUR GLOBAL LTD. VERSUS UNION OF INDIA & 2 [2014 (12) TMI 585 - GUJARAT HIGH COURT] has declared the words “without utilizing Cenvat Credit” under Rule 8(3A) as ultra vires which means that the assessee can discharge duty by utilizing Cenvat Credit which is what exactly has been done in the instant case by the Appellant.
The demand in the instant case has been raised for contravention of Rule 8(3A) ibid restricting utilization of Cenvat credit during the period of default which provision has been declared ultra vires/invalid by Court, hence the demand cannot be sustained and the Appeal, thus, succeed on this count.
Appeal allowed.
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