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Central Excise - Case Laws
Showing 81 to 94 of 94 Records
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2023 (3) TMI 293
CENVAT Credit - tubes and flaps - assessee was domestically clearing such tyres along with tubes and flaps by paying central excise duty on the value of the entire set packing, i.e. tyres, tubes and flaps - export of these items also took place - HELD THAT:- The decision of this Tribunal in BALKRISHNA INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., JAIPUR-I [2007 (6) TMI 85 - CESTAT, NEW DELHI] as well as of the High Court of Rajasthan in the case of M/S BALKRISHNA INDUSTRIES LTD. VERSUS UNION OF INDIA, ASSISTANT COMMISSIONER, CENTRAL EXCISE DIVISION, BHIWADI [2022 (2) TMI 558 - RAJASTHAN HIGH COURT] the assessee itself holding that CENVAT credit on duty paid tubes and flaps as accessories of manufactured tyres is admissible, is binding on us. Therefore, the issue having been held in favour of the assessee, the present appeal by the revenue needs to be dismissed and the order passed by the Adjudicating Authority is consequently upheld.
Appeal dismissed.
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2023 (3) TMI 292
Wrong invocation of extended period of limitation while issuing the show cause notice - appellant had been manufacturing and clearing Magnesium Sulphate, however, without payment of central excise duty despite that the said product was falling under Chapter heading No. 28332100, neither any duty was paid nor the clearance was declared with the department - HELD THAT:- Since the time of issuance of the show cause notice, the department has observed that there is not merely a failure of paymet of duty by the appellant while clearing the manufactured Magnesium Sulphate but there has no declaration about the said manufacture and the clearance thereof. The clearances have not been shown by the assessee in the monthly ER-1 returns. The adjudicating authority below has recorded the findings about invoking the extended the period in para 6.4 of the order under challenge with the specific mention that the product in question was not declared by the appellant in his statutory returns.
It is noted that the Learned counsel's arguments are that there is no evidence produced by the Department highlighting the alleged suppression of facts. In this context, it may be pertinent to point out that with the introduction of Self Removal Procedure, the Central Excise administration moved to a trust based tax administration for collection of the said indirect tax. Self assessment of goods and filing of returns are some of the initiatives wherein the Assessee assesses the goods himself and determines the duty and clears the goods - the appellant had failed to declare these goods in his returns and had failed to pay the duty. Therefore, the suppression charges alleged by the Department stand proved.
The plea of exemption under notification dated 17.03.2012 cannot be an act of bona fide belief, as the product manufactured by the appellant is not mentioned therein. Had there been no scrutiny of appellant’s record by the department, the fact of non-declaration by the appellant would not have came to notice.
The show cause notice is held to have rightly invoked the extended period of limitation - Appeal dismissed.
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2023 (3) TMI 232
CENVAT Credit - inputs in stock, in process or inputs contained in their final products and required to have been paid before effecting clearance under Notification No.60/2003- CE dated 29.07.2003 under Rule 12 of the Cenvat Credit Rules, 2002 - invocation of extended period of limitation u/s 11A(1) - HELD THAT:- The CENVAT credit had been taken by the respondent-department when the final products were exigible to duty. It was availed on inputs till the date of exemption vested in assessee. The respondent could not be divested of that credit as there was no statutory provision to do so. The right to avail credit is indefeasible and there cannot be stated to be any co-relation between the raw material and the final product; that is say, it is not as if the credit could be taken only on final product that was manufactured due to the particular raw material to which the credit was related. It is nobody's case that credit of duty on inputs was taken by the respondent illegally or irregularly.
The subsequent exemption of final products manufactured by the respondent from excise duty did not make the respondent assessee liable to reverse the cenvat credit availed as the same was given to it on the date when the final product was not exempted.
The respondent was certainly entitled to benefit of cenvat credit in the obtaining circumstances of the case and, therefore, the question of payment of any interest or penalty by the respondent or its officers did not arise. The substantial questions of law are answered accordingly in favour of the respondent and against the appellant.
Appeal dismissed.
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2023 (3) TMI 231
Utilisation of CENVAT credit amounting towards payment of BED and SED on the final products - Rule 3 (7)(b) of the CENVAT Credit Rules, 2004 - HELD THAT:- In the facts of the present case, no substantial question of law arises for consideration as with respect to this very assessment, show cause notice has already been dropped by this Court on 25.01.2007 in CEA No. 140-2006 and even SLP filed against this order has also been dismissed.
Appeal dismissed.
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2023 (3) TMI 230
Recovery of irregularly availed Cenvat Credit - ISD invoices did not contain the requisite details as required in terms of Rule 4A of Service Tax Rules, 1994 - No input services covered in the said ISD invoices were received by the appellant unit - credit transferred amount included a portion of credit transferred back by M/s. Pricol Ltd., Plant-I to Pricol ISD Registrant which was subsequently redistributed by the ISD registrant to the appellant unit and such credit is not permissible to be transferred by the ISD to the appellant in terms of Rule 7 of CCR, 2004.
HELD THAT:- The Hon’ble Tribunal in COMMISSIONER OF CENTRAL EXCISE, SALEM VERSUS PRICOL LTD. [2012 (9) TMI 866 - CESTAT CHENNAI] have already decided that input service credit when distributed by the ISD, cannot be held as inadmissible on the pretext that such invoices did not contain all the particulars as required in terms of Rule 4A of CCR, 2004, when it was possible for the department to verify all the input service invoices on the basis of which the credit has been accumulated by ISD.
It is seen that the proceedings initiated against M/s. Pricol Limited, Plant-I, Coimbatore, on the issue of retransfer of ISD credit to M/s. Pricol Ltd., ISD was finalized by this Hon’ble Tribunal in M/S. PRICOL LTD. (PLANT I) , M/S. PRICOL LTD. VERSUS THE COMMISSIONER OF G.S.T. & CENTRAL EXCISE, COIMBATORE COMMISSIONERATE [2019 (2) TMI 25 - CESTAT CHENNAI] where it was held that it is evident that M/s. Pricol Ltd., Plant-I has only returned/reversed the exact quantum of Credit that was transferred to it in the first place by the M/s. Pricol Ltd., ISD. Such return/reversal has not enlarged the quantum of Credit that has been availed nor has there been any financial injury caused to the exchequer. This is then only a revenue neutral situation.
Appeal allowed - decided in favour of appellant.
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2023 (3) TMI 172
Refund of central excise duty - Service Air Trolley (SAT 300) supplied to Indian Air Force - It is the case of the appellant that though the invoices mentioned central excise duty on the goods supplied, they have not collected the duty from the buyer as the goods are exempted from central excise duty - Refund rejected on the ground of unjust enrichment.
HELD THAT:- Undisputedly, the appellants have mentioned the excise duty in the invoices. Then presumption envisaged in Section 12 B of the Central Excise Act, 1944 is attracted. However, this presumption is a rebuttable one. It is for the appellant to establish that they have not collected the duty from the buyer. Appellant has furnished a certificate from the buyer to show that price in the supply order is without including the excise duty. The appellant has now produced Certificate issued by the Chartered Accountant along with relevant Financial Statement, to establish that the incidence of duty has not been passed on to the buyer. However, these documents require verification as these were not presented before the authorities below.
The matter requires to be remanded to the original authority, who shall consider the issue of refund afresh on the basis of the documents including the CA certificate and the audited financial statement produced by the appellant. The appellant shall be given an opportunity of personal hearing.
Appeal allowed by way of remand.
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2023 (3) TMI 171
Taxability - liable to central excise duty or taxable under the provisions of the service tax for providing works contract service - activities of the fabrication/manufacture including installation (at premises of customer) of Retail Visual Identity (RVI) under contract by the appellant - Suppression of facts or not - extended period of limitation - HELD THAT:- After the goods are inspected by the Oil Companies or its nominated agencies, the appellant undertakes fabrication, wherein they do cutting, sizing, etc., as per measurements taken at the retail outlets. Partially fabricated frames in un-finished condition and other cut materials etc. are then transported to the site, where final adjustments are made at site by cutting, re-working, etc. Frames are finally fabricated and fixed (piece by piece) with the help of the angles and brackets fixed to the building facia, column, etc. Barring a few small signages, various elements of RVI upon final fabrication/erection at site like Canopy facia, building facia, monolith, etc are practically immovable. These cannot be removed without cannibalizing, only few smaller signages including Arches and spreaders (direction signs) are made in the factory.
Revenue have failed to identify the state or form in which the goods are removed from the factory and whether these are in marketable stage. We further find that the statement of the officers of the Oil Companies is not reliable, as the same is contrary to the documentary evidence being work order, inspection reports, etc. on record, forming part of the relied upon documents. The schedule of rates forming part of the work order mentions fabrication with prescribed materials as per drawings and specifications, fixed securely to existing canopycolumns by welding, etc. at site. ACM panel fixing - to ensure the joint gaps are uniform. Thus, from the work order, partial fabrication at site including welding etc. is evident - Revenue failed to establish that the partially fabricated goods removed from the factory were in marketable state. The whole case is made out on the basis of assumptions and presumptions. No inspection has been made by the Revenue at the factory premises of the appellant/assessee.
Admittedly the appellant have maintained proper books of accounts and had taken registration under the Service Tax Provisions for discharge of their tax liability and have accordingly discharged the service tax payable under the head “Works Contract Service” on the gross value under Compounding Scheme. Thus, Revenue had full knowledge of the activities of the appellant.
Extended period of limitation - HELD THAT:- On the activity of the appellant, central excise duty is not attracted, as the partially fabricated frames etc. removed from the works of the appellant are not in a marketable stage. It is also found that Revenue have failed to value the various elements of RVI or goods in the state, they are cleared from the factory and have grossly erred in charging the duty on the gross value of the work contract. It is also found that it has been clarified by the Oil Companies subsequently (after remand) that RVI elements are fabricated at site as per specific measurements and requirements. After installation, the RVI elements cannot be dismantled without cannibalizing and they become as integral part of the building facia, etc.
The impugned order is also bad as it was not proposed in the show cause notice to classify under CTH 8310 of CETA. Under the facts and circumstances, the extended period of limitation is also not applicable - Appeal allowed.
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2023 (3) TMI 170
Grant of proper interest on the amount refunded, which was deposited during investigation - HELD THAT:- The issue herein is squarely covered on all four by the precedent ruling of Division Bench of this Tribunal in M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, NOIDA (VICE-VERSA) [2021 (5) TMI 870 - CESTAT ALLAHABAD] which has also been confirmed by Punjab & Haryana High Court in COMMISSIONER OF CENTRAL EXCISE, PANCHKULA VERSUS M/S RIBA TEXTILES LIMITED [2022 (3) TMI 693 - PUNJAB & HARYANA HIGH COURT].
It was held in the above-stated cases that interest on refund of amount deposited during investigation or deposited during pendency of appeal is allowable under Section 35EE of the Act and has to be paid from the date of deposit till the date of refund.
The appellant is entitled to interest on the refundable amount of Rs. 22,84,270/- from the date of deposit (27.10.2010) till the date of refund being 05.02.2021, @ 12% per annum - Appeal allowed.
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2023 (3) TMI 169
CENVAT Credit - capital goods - MS Angles, Beams, Plates, channels etc. - HELD THAT:- It is found from the show-cause notice dated 21.04.2014 that the wordings “M/s CEAT Ltd. are using such capital goods i.e. MS Angles, Beams, Plates, Channels” indicates that the said goods were treated as capital goods by Revenue while issuing show-cause notice.
Hon’ble High Court of Gujarat in the case of MUNDRA PORTS AND SPECIAL ECONOMIC ZONE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & CUSTOMS [2015 (5) TMI 663 - GUJARAT HIGH COURT] has held that judgment of Larger Bench of the Tribunal in the case of VANDANA GLOBAL LTD. VERSUS CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] was not a good law.
By following the observation of Hon’ble High Court of Gujarat in the case of Mundra Port, the appellant are allowed to avail CENVAT Credit in respect of the goods in the present proceedings - appeal allowed.
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2023 (3) TMI 126
CENVAT Credit - after sale service provided during warranty period of the sale of the goods manufactured by the respondent - service provided during warranty period is after removal of the goods from the factory is provided in or in relation to the manufacture of excisable goods or not - HELD THAT:- The service on which the respondent have taken the cenvat credit is provided in the nature of Repair & Maintenance of the excisable goods i.e. pumps sold by the respondent during the warranty period. It is also observed that the policy of free servicing during warranty period is not under dispute. The respondent is not collecting the service charges from the customer which is the service during the warranty period is provided free of cost therefore, the cost of such service stand included in the transaction value of the excisable goods sold by the respondent.
Rule 2(l) particularly in the inclusion clause covers the ‘activities relating to business’ therefore, the said service during warranty period also clearly falls under the category of ‘activities relating to business’. This identical issue has been considered by this tribunal in the case of Leroy Somer India Pvt. Ltd [2015 (10) TMI 1025 - CESTAT NEW DELHI] wherein, the tribunal has held that appellant is entitled to take Cenvat credit on repairs and maintenance provided by services provider during the period of warranty on behalf of the appellant.
Thus, the respondent are entitle for the cenvat credit on the service of Repair & Maintenance during warranty period accordingly, the impugned order is upheld - Revenue’s appeal is dismissed.
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2023 (3) TMI 125
Revocation of registration under Central Excise - allegation of on-existent manufacturing facility to operate as a central excise assessee and claim benefits arising therefrom. - Import of goods against the Entitlement for Duty free entitlement credit certificate (DFECC) - absence of factory address in the bills of entry - N/N. 53/2003-Cus dated 1st April 2003 - HELD THAT:- We may, at the outset, decline to have anything to do with propriety of import, or adherence to obligations devolving, under ‘duty free entitlement credit certificate (DFECC)’ scheme in the Foreign Trade Policy (FTP), operationalized through notification no. 53/2003-Cus dated 1st April 2003, as the lack of jurisdiction with the lower authorities precludes our jurisdictional competence too. There is no evidence of proceedings having been initiated under Customs Act, 1962
It is no less surprising that the exercise of revocation has been undertaken by the tax authorities for recovery of credit, taken under CENVAT Credit Rules, 2004, of duty discharged by the appellant at the time of import and utilised towards partial discharge of duty liability arising on clearance of goods; it does not appear to us that there is sound logic in appellant choosing to discharge duty liabilities, at different stages, on goods that were ultimately to be exported and to be unduly benefited from the exchequer when all that was sought to be reimbursed were the very same duties that were eligible to be neutralised upon exports.
Revocation of registration, not provided for in Central Excise Rules, 2002 and only in exercise of power of Central Board of Excise & Customs (CBEC) to specify conditions, safeguards and procedure in rule 9(3) of Central Excise Rules, 2002, can be triggered only within the rigour therein and with discharge of duty liability certainly not being breach of Act or Rules, the revocation upheld by the first appellate authority is not valid in law. Duty on final product having been discharged by the appellant, and not excluded, by any stretch, from the definition of manufacture applied to the ‘taxable event’ in section 3 of Central Excise Act, 1944, denial of CENVAT credit by the original authority in the order impugned here, as held in COMMISSIONER VERSUS CREATIVE ENTERPRISES [2009 (7) TMI 1206 - SC ORDER], does not have sanction of law.
Appeal allowed.
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2023 (3) TMI 63
CENVAT Credit - traded goods - exempt goods or not - cenvat credit was availed on the common input service attributed to the dutiable goods as well as exempted service (trading activity) - appellant was admittedly reversing the proportionate credit attributed to the trading activity along with interest - applicability of Rule 6(3) of CCR - HELD THAT:- The facts of the present case is that though initially the appellant have taken the cenvat credit on the common input service which were used for manufacture of dutiable goods as well in relation to exempted service i.e. trading activity, however, on pointing out by the department, the appellant have calculated the proportionate credit in respect of common input service attributed to the trading activity and paid the same along with interest. After payment of such proportionate credit, the situation became as if no cenvat credit was taken in respect of common input service attributed to the trading activity as held by the Hon’ble Supreme Court in the case of CHANDRAPUR MAGNET WIRES (P) LTD. VERSUS COLLECTOR OF C. EXCISE, NAGPUR [1995 (12) TMI 72 - SUPREME COURT].
In Rule 6(3) from the different options provided to the assessee in addition to 6/7% payment an option for proportionate reversal of the credit is also provided. This tribunal time and again taken a view that whether option is availed in advance or later stage it is prerogative to the assesse to choose any one of the option - Therefore, merely because the appellant at the relevant time did not opt for any of the option, revenue cannot impose upon the appellant a particular option i.e. payment of 6/7% of the value of the goods/service.
Therefore, once it is admitted fact that the appellant have reversed the cenvat credit in respect of common inpout service attributed to the trading activity and also paid the interest thereon at the relevant time, no demand of 6/7% of the value of the trading activity will sustain - Appeal allowed.
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2023 (3) TMI 62
Seeking condonation of delay of 9 years and 11 days in filing the appeal - Area based exemption - effect of N/N. 17/2008-CE dated 27.03.2008 - HELD THAT:- In similar circumstances in the appellant’s own case vide Interim Order No.71/2021 dated 23.08.2021, this Tribunal condoned the delay in filing the appeal before the Tribunal. Following the precedent decision in the appellant’s own case, the delay of 9 years and 11 days in filing the appeal is condoned.
Registry is directed to list appeal for final hearing in due course.
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2023 (3) TMI 7
Reversal of proportionate input tax credit - whole quantity of inputs used in the manufacture of dutiable as well as exempted products - non-maintenance of separate records - requirement to pay an amount equal to 8% of the price of the exempted goods, charged by it for sale of exempted goods at the time of their clearance from its factory as per Rule 57CC (1) of the Rules, 1944.
HELD THAT:- The Rules, 1944 were subsequently amended vide Section 69 of the Act, 2010 and Rule 57 CCC was inserted. As per Section 69 sub-Section 1 of the Act, 2010, the Rules, 1944 shall stand amended and shall be deemed to have been amended retrospectively, in the manner specified in Column (3) of the Fourth Schedule, on and from and up to the corresponding date specified in column (4) of that Schedule. As per sub-Section 2, where a person opts to pay the amount in accordance with provisions of Rules, 1944 as amended by Sub-Section (1), he shall pay the amount along with interest specified thereunder and make an application to the Commissioner of Central Excise along with documentary evidence and a certificate from a Chartered Accountant certifying the amount of input credit attributable to the inputs used in or in relation to the manufacture of the final products, which are exempted from whole of the duty of excise leviable thereon or chargeable to nil rate of duty, within a period of six months from the date on which the Finance Bill, 2010 receives the assent of the President.
The respondent was admittedly maintaining a common inventory/account of receipt and use of the said common inputs. The dispute related to maintenance of separate accounts and inventory of the inputs meant for exempted final products as well as dutiable final products. The respondent reversed the modvat credit amounting to Rs.4,51,574/- on proportionate basis in respect of the inputs used in the manufacture of exempted final products and also paid interest @24% per annum on the amount of reversed credit during the pendency of the appeal pending before the Tribunal earlier. By way of amendment in the Act, 2010, the Rules, 1944 were amended and Rule 57 CCC was inserted for reversal of actual credit by the manufacturer availing the credit of specified duty in respect of inputs used for manufacture of final product, which was chargeable to duty or chargeable to nil rate of duty by payment of amount equivalent to amount of credit attributable to inputs used in the manufacture of such final products.
Undoubtedly, the respondent herein had not moved any application while opting to reverse the proportionate credit within six months of enactment of Finance Bill, 2010 along with documentary evidence and certificate from Chartered Accountant as required under Rule 57 CCC of the Rules. However, since all this happened during the pendency of the proceedings while the respondent had been still prosecuting its remedies, therefore, it cannot be stated that the respondent had not complied with the requirement of scheme of retrospective amendment of Section 69 (2) of the Act, 2010. As such, the learned Tribunal had rightly set aside the demand of the appellant of tax of 8% of value of exempted goods.
Appeal dismissed.
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