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Central Excise - Case Laws
Showing 21 to 40 of 1430 Records
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2023 (12) TMI 1140
Maintainability of appeal - availability of alternative remedy - Recovery of the Drawback sanctioned u/r 18 of Duty Drawback Rules, 2017 - levy of penalty u/s 17 of the Customs Act, 1962 - HELD THAT:- Undisputedly, the issue involved in the present case is in relation to the goods imported as baggage - From the Section 129A(1) of the Customs Act, 1962 it is evident that the appeal in the present case against the order of Commissioner (Appeals) would not lie before this Tribunal. Accordingly, this appeal is not maintainable before this Tribunal.
Appeal is dismissed as non maintainable - Appellant may pursue the appellate remedy as provided in law.
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2023 (12) TMI 1139
CENVAT Credit - input services - Catering Service, House Keeping services, Interior Decoration services and Garden Maintenance services used in the manufacturing plant - services such as Catering Service, House Keeping services, Interior decoration services and Garden maintenance service, Construction Service, Repair and maintenance service etc used in guest house and Employee Township - HELD THAT:- The definition of “input service” read as a whole makes it clear that the said definition not only covers services, which are used directly or indirectly in or in relation to the manufacture of final product, but also includes other services, which are integrally connected with the business of the manufacturer. Thus, the definition of 'input service' has a wide ambit and extends to all services used in relation to the business / activities relating to business.
In the instant case, the housekeeping services, catering services and interior decoration services are availed at the plant/factory and hence denial of the credit in respect of the said services is not justified.
Housekeeping services - HELD THAT:- These services are very necessary and vital for keeping the factory in good condition. Hence the expenses incurred towards housekeeping services qualify as ‘input service’ under CENVAT credit Rules, 2004 - reliance can be placed in the case of COMMISSIONER OF CENTRAL EXCISE, DELHI-III VERSUS M/S PRICOL LTD. [2015 (12) TMI 1486 - CESTAT NEW DELHI] and BALKRISHNA INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., AURANGABAD [2010 (3) TMI 375 - CESTAT, MUMBAI].
Catering services - HELD THAT:- The factory of the Appellant is in the remote area and thus the Appellant had to supply food to the workers. Therefore, the service of catering as availed by Appellant is in relation to manufacturing activity, since without food it will not be possible for the employees to work in the factory - reliance can be placed in CCE, NAGPUR VERSUS ULTRATECH CEMENT LTD., [2010 (10) TMI 13 - BOMBAY HIGH COURT].
Interior decoration services - HELD THAT:- The appellant has incurred expense towards interior decoration of various office buildings & canteen within the factory premise which is essential for smooth carrying of day to day business activities. Thus, such expenses incurred by the company also qualify as ‘input service’ under CENVAT credit Rules, 2004.
Garden maintenance services - HELD THAT:- In the instant case the Appellant had availed services for maintenance of garden which is essential for the proper functioning and efficiency of a factory, and hence they are eligible for credit as input services - reliance can be placed in BALKRISHNA INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., AURANGABAD [2010 (3) TMI 375 - CESTAT, MUMBAI].
Manpower services - HELD THAT:- In the instant case the Appellant had availed services for manpower service which is essential for the cleaning, organizing canteen of workers, work related to dispensary within the factory to provide instant medical treatment to the worker when required etc. Thus, these activities certainly have nexus with the business of manufacture - reliance can be placed in M/S. JAYPEE SIDHI CEMENT PLANT VERSUS CCE, BHOPAL [2014 (10) TMI 90 - CESTAT NEW DELHI].
Thus, the impugned order denying the Cenvat credit availed on the 'input services' Catering Service, House Keeping services, Interior Decoration services and Garden Maintenance services used in the manufacturing plant, is not sustainable.
Cenvat credit availed on the input services used in relation to the guest house and township situated within the factory premises - HELD THAT:- The Appellant incurred the expenses on account of construction of guest house and township for their employees within the premise of the plant. Due to location of the plant, they are under statutory obligation to provide a colony to the workers of the factory, to maintain the continuity of activity of manufacturing. Thus, having colony within the factory premise became indispensable. Similarly, to accommodate business delegates, consultants who used to visit time to time for verification and inspection of the plant, the guest house facility became necessary - the Cenvat availed by the Appellant were not related to any services acquired for its employees’ personal use, instead those were availed by the Appellant for proper functioning of the factory.
Reliance can be placed in the case of COMMISSIONER OF CUS. & C. EX., HYDERABAD-III VERSUS ITC LIMITED [2011 (11) TMI 516 - ANDHRA PRADESH HIGH COURT] - The Appellant is eligible for the Cenvat credit availed on the input services such as Catering Service, House Keeping services, Interior decoration services and Garden maintenance service, Construction Service, Repair and maintenance service etc used in guest house and Employee Township situated within the factory premises. Accordingly, the impugned order denying such credit to the Appellant is not sustainable.
The Appellant is eligible for the Cenvat credit availed on the 'input services' which are disputed in this appeal - the demand confirmed in the impugned order is set aside. Since the demand itself is not sustainable, the question of charging interest and imposing penalty does not arise - Appeal allowed.
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2023 (12) TMI 1107
Adjustment of excess amount deposited by the petitioner towards the amount demanded - SVLDR provide for adjustment or not - Circular No. 1074/07/2019-CX dated 12.12.2019 - HELD THAT:- The finding of the writ court is that SVLDR was introduced to provide amnesty and resolution of disputes by making mutual adjustment with regard to the disputed pre-deposit made by the petitioner. It is further held that merely because the assessee has to file a separate declaration for each period, in the absence of a specific bar or prohibition for consolidating or clubbing two cases and making mutual adjustment, it cannot be said that mutual adjustment in respect of the very same assessee in relation to same subject matter or commodity for the two different periods is impermissible.
The petitioner has not claimed refund. Merely for the reason that SVLDR does not provide for adjustment, in view of circular issued by the department, adjustment is permitted. It is to be noted that declarant is always one person and the declarations are for different periods. So any money deposited by a declarant in respect of demand for one period can be adjusted in respect of demand for another period.
There are no infirmity in the impugned order. Hence writ appeal is dismissed.
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2023 (12) TMI 1106
Clandestine removal - Acoustic Enclosures - manufacture and clearance without payment of duty or the said goods were manufactured on job-work basis by other manufacturers and cleared to the customers directly - relevant period i.e. 01/04/2000 to 04/06/2002 - HELD THAT:- The Revenue could be able to establish that even though the appellant claimed to have manufactured the acoustic enclosures on job work basis from M/s. SBN Engineering Works and M/s. Steel Engineering works, in fact the same were manufactured in their premises during the relevant period and cleared without payment of duty. The claim of the evidence from the stage of procurement of raw-materials, receipt in the factory, manufacture using their labour force adduced by the Department in the demand notice and confirmed in the impugned order by learned Commissioner (Appeals), the owner shifts to the appellant to establish that the goods acoustic enclosures manufactured on job-work basis.
It is found that the submissions advanced by the appellant are of general in nature and devoid of rebuttal of evidences brought on record indicating procurement of raw materials, processing of the same in the factory premises, stock of the glass wool etc. used in the manufacture of acoustic enclosures found in their factory, low conversion charges reflected in the invoice of job-worker etc. overwhelmingly indicate that the acoustic enclosures were manufactured and cleared without payment of duty from their factory.
The appeal of the appellant is rejected and order of the Commissioner(Appeals) is upheld.
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2023 (12) TMI 1105
Wrongful availment of SSI Exemption - use of brand name ‘BASANT’ owned by another person - ‘BASANT’ is the name inherited by both BMW and the appellant - whether the use of the brand name ‘BASANT-KS’ by suffixing the letters ‘KS’ (abbreviation for Kanwarjit Singh, Partner of the appellant firm) to the inherited name ‘BASANT’ is entirely fortuitous and is not a case of use of brand name belonging to the other person?
HELD THAT:- On an identical issue regarding the brand name ‘BASANT’ this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE & ST, LUDHIANA VERSUS M/S. BASANT PRESSES (INDIA) [2017 (6) TMI 805 - CESTAT CHANDIGARH] had held that the trademark BASANT was being used by BMW and the same even if used by M/s Basant Presses (India), they were still eligible for SSI exemption.
The impugned order denying the benefit of SSI exemption is not sustainable in law - Appeal allowed.
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2023 (12) TMI 1104
Valuation - includability of the sales tax concession retained by the Appellant in the assessable value for the purpose of levy of Central Excise duty - 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, it is held 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 - the demand for the normal period is to be computed by taking the amount collected as cum-duty.
Extended period of limitation - penalty - HELD THAT:- It is observed that 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, 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 - Further, Board has issued Circular No. 1063/2/2018- CX dated 16.02.2018, clarifying acceptance of some of the orders passed by the Hon’ble Supreme Court, High Courts etc, wherein no review petition has been filed - In the said clarification, the order passes by the Hon’ble Supreme Court in the case of Super Synotex has also been included and it has been categorically stated that extended period not invocable in such cases. In the present case, we observe 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, the extended period not invocable in this case and for the same reason penalty under Section 11AC of the CEA, 1944 also not imposable.
Appeal allowed in part.
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2023 (12) TMI 1103
Exemption under N/N. 67/95-CE - Clearances of acetylene gas for captive consumption - benefit denied merely on the ground that the acetylene gas is not used in the repair and maintenance of machinery directly, rather the same is being used via intermediate products - HELD 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 30 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 Jayaswal Neco Limited v. Commissioner of Central Excise, Raipur [2015 (4) TMI 569 - SUPREME COURT] held It is clear from the above that 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 30 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 - appeal allowed.
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2023 (12) TMI 1064
Denial of benefit under N/N. 29/2004-CE and N/N. 30/2004-CE both dated 09.07.2004 - Denial on the ground of availment of CENVAT Credit - whether the appellants can avail both the notifications and as to whether CENVAT credit is available under such circumstances? - HELD THAT:- The very same issues have been deliberated by the Tribunal in number of cases - it is found that this Bench in the case of SHRIJEE LIFESTYLE PVT. LTD. VERSUS COMMISSIONER OF C. EX., THANE [2013 (9) TMI 998 - CESTAT MUMBAI] has held it is not a situation where the duty credit on inputs were availed in respect of exempted goods and dutiable goods simultaneously. Hence the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004 is not applicable in the facts of the case.
The Tribunal in the case of Winsome Yarns Ltd. [2015 (9) TMI 459 - CESTAT NEW DELHI] has held When an assessee does not avail of input duty credit, he has option to pay 4% duty under Notification No. 29/2004-C.E. and also the option to clear his goods at nil rate of duty under Notification No. 30/2004-C.E. and when two exemption Notifications are available to an assessee, he can always opt for the Notification which is most beneficial for him and in this regard the Department cannot force the assessee to avail a particular exemption Notification. Looked at from this point of view, the Department’s stand is incorrect.
There are no infirmity in the simultaneous availment of benefit under both the Notifications No. 29/2004 and 30/2004 and the credit on capital goods by the appellants - appeal allowed.
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2023 (12) TMI 1063
Disallowance of CENVAT Credit alongwith interest and penalties - denial of credit on the sole ground that no service has been rendered by the contractors to the Appellant and the amount paid by the Appellant is in the nature of reimbursement of capital investment and not towards the provision of any service - extended period of limitation - HELD THAT:- The ground under which the Cenvat credit availed by the Appellant was denied, cannot be agreed upon - It is a settled proposition of law that Cenvat credit cannot be denied to service recipient when payment of service tax is not disputed by the department at the service provider’s end.
In the case of M/S. HINDALCO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, ROURKELA [2023 (12) TMI 117 - CESTAT KOLKATA], this Tribunal has held that Without challenging the assessment, the department cannot question the Cenvat credit passed on by ABMCPL to the Appellant - By relying on the decision, it is held that the denial of Cenvat credit amounting to Rs. 183,36,81,368/-in this case vide the impugned order is not sustainable. Since the demand of recovery of Cenvat credit is not sustainable, the question of demanding interest and imposing penalty does not arise.
Extended period of Limitation - HELD THAT:- The impugned order has confirmed the demand without any conclusive evidence towards any suppression, misstatement, fraud, collusion, etc. with the intent to evade payment of service tax on part of the Appellant. Further, the Appellant being a PSU, there exists a presumption of bona fide and no allegation of suppression of facts with intent to evade payment of tax can be levelled against them without any concrete evidence - It is also observed that the factum of availment of CENVAT credit was duly reflected in the periodical returns filed by the Appellant. Therefore, the demand confirmed vide the impugned O-I-O by invoking the extended period of limitation cannot be sustained - the demands confirmed in the impugned order are liable to be set aside on the ground of limitation also.
The impugned order is set aside on merit as well as on limitation - the appeal filed by the Appellant is allowed.
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2023 (12) TMI 1062
CENVAT Credit - eligibility to avail credit on input services relating to captive mines, which is distributed to the Appellant vide ISD invoices - HELD THAT:- It is found that both the mines as well as the manufacturing unit belongs to one legal entity i.e. SAIL, which is engaged in manufacture of Steel. The subject mines are set up primarily to serve as captive mines to manufacturing units of SAIL and thus bears an integral link to steel plants - it is observed that the input services like security service, mining service, transportation etc used by the captive mines bears a direct nexus with Appellant’s units manufacturing final products i.e. Steel. Hence, such services are very well covered within the scope of the definition of ‘input services’. Rule 3 of CCR does not mandate that for the purpose of availment of credit on input services, such services should be received within the premises where manufacture of final product takes places but only provides that services should be used in or in relation to the manufacture of final products.
Thus, the Appellant is entitled to avail credit of service tax paid on input services received at the mines, which serves as an intermediate product for manufacture of final product i.e. steel items.
Thus, the Appellant is eligible to avail CENVAT Credit of input services relating to captive mines, which is distributed to the Appellant vide ISD invoices - the demand of reversal of Cenvat credit along with interest and penalty confirmed vide the impugned order dated 30.09.2019, is not sustainable - appeal allowed.
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2023 (12) TMI 1061
Reversal of CENVAT Credit - Appellants have availed Cenvat Credit both for dutiable and exempted goods - separate Cenvat Credit records and status were not maintained - with effect from 01/03/2011, the supplies to Railways brought under the concessional rate of 1%/2% Excise Duty subject to the condition that no Cenvat Credit is availed - Extended period of Limitation - HELD THAT:- The Supreme Court in the case of CHANDRAPUR MAGNET WIRES (P) LTD. VERSUS COLLECTOR OF C. EXCISE, NAGPUR [1995 (12) TMI 72 - SUPREME COURT] has held that if the Cenvat Credit taken is reversed, the same would amount to non-availment of Cenvat Credit.
As per the factual details available and seen from the records, it is found that the Department itself does not dispute after proper verification by the Superintendent that the Appellant has maintained separate accounts and has not availed the Cenvat Credit to the extent of Rs. 2,69,26,825/- and they have availed Cenvat of Rs. 54,46,566/- only in respect of three or four common inputs - there are no justification for confirmed demand of Rs. 35,39,80,370/- for the period 2009-10 to 28/02/2011. For the same reason, the confirmed demand of Rs. 49,43,41,259/- for the period 01/03/2011 to May 2013 is not legally sustainable.
However, verification is required to be done about the Cenvat Credit taken for the common inputs to the extent of Rs. 54,46,566/-, a figure which is being agreed to by the both sides - it is directed that the Adjudicating Authority to apply the procedure prescribed under Rule 6 of CCR, 2004, for proportionate reversal of Cenvat Credit. For arriving at this figure, Gross Total Credit available, total credit taken, credit taken for common inputs, total turnover, exempted turnover etc. are required to be considered as per the CCR Rules, 2004.
Extended period of limitation - Appellant submits that there is total absence of suppression on their part and prays that the confirmed demand towards the extended period is required to be set aside - HELD THAT:- There are considerable force in this argument since the Appellants have been filing the Returns regularly and non-availment of Cenvat of over Rs. 2.69 Crores as claimed was found to be correct by the Superintendent on 18.06.2018, after the Show Cause Notice was issued. Therefore, it is held that the any confirmed demand for the extended period is not sustainable and such demand on account of time bar is set aside.
Matter remanded to the Adjudicating Authority for the limited purpose of quantifying the Cenvat Credit to be reversed on account of common inputs for the normal period only after excluding the demand for the extended period - appeal allowed by way of remand.
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2023 (12) TMI 1060
Irregular availment of CENVAT Credit - imported goods - cleared as such as the said tools neither inputs nor capital goods used in or in relation to the manufacture of their final products - process not amounting to manufacture - HELD THAT:- In the present case, the appellants are engaged in the manufacture of various high precision tools, and also import certain parts used as inputs. The tools were customised and sold by the appellant on payment of appropriate duty of excise on its transaction value, which was more than the credit availed on the inputs. The Revenue disputed the processes undertaken on the imported items alleging the same do not result into manufacture of a new item different from the inputs; hence the activity undertaken by the appellant is purely in the nature of trading; therefore, cenvat credit availed on the inputs cannot be admissible.
This issue is no more res integra as it has already been settled by various decisions as cited by the learned counsel for the appellant. In THE COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS AJINKYA ENTERPRISES [2012 (7) TMI 141 - BOMBAY HIGH COURT], the Bombay High Court taking note of the arguments of the Revenue, more or less in the same line observed once the duty on final products has been accepted by the department, CENVAT credit availed need not be reversed even if the activity docs not amount to manufacture.
There are no merit in the impugned order. Consequently, the impugned order is set aside - appeal allowed.
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2023 (12) TMI 1059
Valuation - addition of scrap value to the assessable value, at which Appellant job worker had cleared the intermediate product to the input supplier cum Principal manufacturer - demand alongwith interest and penalty - HELD THAT:- Order already passed in the Appellant’s own case for its earlier period VISHNU KUMAR RATANLALJI OZA VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR AND M/S. VINAR ISPAT LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2023 (2) TMI 1232 - CESTAT MUMBAI] holding that money value of the scrap retained by the Appellant does not represent additional consideration for the Appellant and it is not liable to be included in the assessable value of the job worked goods, being cleared on payment of duty to the manufacturer. There is no substantial change of law in the meantime except inclusion of Rule 10(A) which CBEC have clarified vide its Circular dated 31.03.2010 that once goods manufactured by job workers are not sold by the Principal Manufacturer but are consumed by the Principal manufacturer, Provision of Rule 8 of Valuation Rules, 2000 that provides for determination of value on the basis of 110% of the cost of production is required to be adopted, besides the facts that ever since the judgment of P.R. Rolling Mills passed way back in 2010 [2009 (3) TMI 444 - CESTAT, BANGALORE], it has been consistently held by the Judicial Authorities that additional scrap value would not determine the final assessable value.
The order passed by the Commissioner (Appeals) is set aside - appeal allowed.
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2023 (12) TMI 1058
Levy of Central Excise Duty - resin powder reflected in the monthly returns of Allied Resins - resin powder clandestinely cleared - under valuation of stock transferred goods - penalty under Section 11AC of the Central Excise Act, 1944 - penalty under rule 26 Of Central Excise Rules, 2002 read with Section 9(1) of the Central Excise Act, 1944.
Confirmation of duty demand of Rs.61,24,002/- including Education Cess and SHE Cess, relating to unaccounted manufacture and clearance of U F Resin Powder, to Rampur Unit of Allied Resins - HELD THAT:- There is no evidence to substantiate the allegation of clandestine clearance and there is no question of the Appellant being required to pay any duty in respect of the said quantity. Thus, we hold that the demand of duty from the Appellant on the said quantity again is not sustainable. Accordingly, the demand confirmed in the impugned order on this count is liable to be set aside.
Confirmation of duty demand of Rs.22,99,672/- including Education Cess and SHE Cess, relating to clandestinely cleared goods not accounted for in physical stock verification - HELD THAT:- On going through the reconciliation statement submitted by the Appellant, the net shortage of 36.13 MT arrived at by the Appellant is satisfied. Accordingly, the Appellant is liable to pay duty of Rs. 3,02,176/- along with interest on the shortage of 36.13 MT, as worked out by them.
Confirmation of duty demand of Rs. 1,50,540/- relating to under valuation of stock transferred goods - HELD THAT:- The Appellant has not disputed this liability. Accordingly, the confirmation of this demand is upheld.
Levy of penalty of Rs.85,74,214/- on the Appellant under Section 11AC, of the Central Excise Act, 1944 - HELD THAT:- The duty of Rs. 3,02,176/- along with interest has been confirmed on the shortage of 36.13 MT, which the Appellant agrees to pay. It is observed that this shortage has been arrived at by taking the yield of UF Resin Powder produced as 55% of the weight of liquid resin consumed. As there is no evidence available on record to establish clandestine clearance of this quantity of U F Resin Powder, penalty under Section 11AC not imposable on this demand. Also, the demand of duty Rs. 1,50,540/- is related to under valuation of stock transferred goods. The Appellant has not disputed this liability. However, the issue being technical in nature, the intention to evade payment of duty cannot be attributed to this demand. Accordingly, no penalty imposable on this demand.
Levy of penalty of Rs.1,00,000/- on Shri. R K Vijay, CEO under rule 26 Of Central Excise Rules, 2002 read with Section 9(1) of the Central Excise Act, 1944 - HELD THAT:- The allegation of suppression with intent to evade payment of duty has not been substantiated in this case. Also, the department has not brought in any evidence to highlight the role of Appellant No.2 in the commission of the alleged offence. Accordingly, the penalty imposed on him under rule 26 read with section 9(1) of the Central excise act, is not sustainable.
Appeal disposed off.
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2023 (12) TMI 1057
Clandestine removal - demand of differential duty based on difference in the quantity mentioned on the railway receipts and central excise invoices prepared by the Respondent - HELD THAT;- It is observed that there is no evidence brought on record by the department to allege that there has been excess production. There is no evidence available on record regarding excess receipt of corresponding raw materials or there has been excess electricity consumption or other similar variations to establish clandestine manufacture and removal of goods. Thus, it is observed that the demand raised by the department is based merely on assumptions only.
It is observed that the department has not brought in any evidence on record to substantiate the allegation of clandestine clearance. Accordingly, the demand of duty calculated by the department only on the basis of the excess quantity mentioned in the railway receipts, is not sustainable. Thus, there are no infirmity in the OIO passed by the Ld. Commissioner. Accordingly the OIO dated 28.03.2013 passed by the Ld. Commissioner is upheld.
The impugned order passed by the adjudicating authority upheld - appeal of Revenue dismissed.
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2023 (12) TMI 1002
Recovery of Central Excise Duty alongwith interest and penalty - Onus to prove - conditions imposed in N/Ns. 4/97-CE, 5/98-CE, 5/99-CE, 6/00-CE were satisfied or not - failure to discharge the onus of proving that the two conditions mentioned in the said Notifications, namely, that the goods in question had to be sold to the apex bodies by the respondent and that a certificate should be issued from the said apex bodies to the respondent at the time of the clearance of goods that the said goods were going to be used only on handloom had been satisfied - whether or not the role of the apex bodies was in the nature of selling or commission agents and not that of direct purchasers of the said goods from the Respondent.
HELD THAT:- It is undisputed that the respondent/assessee is a co-operative spinning mill which manufactured the yarn in question. The two co-noticees namely Tantuja and Tantusree are also apex handloom co-operative societies of the State Government who purchased yarn and also gave certificate that the yarn is going to be used only on handlooms. The respondent/assessee received payments from the aforesaid two purchasers namely Tantuja and Tantusree, by account payee cheques. The inference drawn by the adjudicating authority to deny exemption under the relevant exemption notification, that delivery of yarn was given by the respondent/assessee to persons other than Tantuja and Tantusree, is neither based on any material or evidence nor the inference so drawn can be said to be a valid exercise of power by the adjudicating authority - on admitted facts of the case, it is found that the respondent/assessee has fully complied with the conditions of the relevant exemption notification. Therefore, the Tribunal has correctly and lawfully set aside the adjudication order and allowed the appeal of the respondent/assessee.
Undisputedly, the yarn in question has been purchased by the co-noticees namely Tantuja and Tantusree, which both are registered apex handloom co-operative societies, who made payment to the respondent/assessee (yarn manufacturing co-operative society) through cheque drawn by them on their own bank accounts. They have also issued a certificate to the effect that the yarn is going to be used only on handlooms. Thus, all the conditions of the exemption notification in question were satisfied by the respondent/assessee. Therefore, the respondent/assessee was entitled for exemption and the Tribunal has lawfully and correctly allowed the appeal of the respondent/assessee holding the transactions in question to be exempt from Central Excise Duty.
The adjudicating authority had proceeded to deny exemption to the respondent/assessee merely on the basis of surmises and presumptions and alleged intendment. In our view and as per well-settled principles in a taxation statute, there is no room for any intendment and that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification - Nothing is required to be read into nor should anything be implied other than essential inference while considering a taxation statute or exemption notification.
What the adjudicating authority attempted to do is that it attempted to read something which was either factually not existing or which was not provided by the exemption notification. It attempted to add words by drawing its own inference on the basis of presumption that the yarn in question could have been sold by the respondent/assessee not to the aforesaid apex handloom co-operative societies but to some other persons - Since the respondent/assessee has fulfilled all the conditions, therefore, it became entitled for exemption and the exemption could not have been denied.
There are no manifest error of law in the impugned order of the tribunal. The appellant has completely failed to make out any case for interference with the impugned order - substantial questions of law framed are answered in favour of the assessee and against the respondent.
There are no merit in this appeal - appeal dismissed.
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2023 (12) TMI 1001
Application seeking restoration of appeal - non-prosecution of the case - seeking change in the cause title - non-inclusion of value of the said moulds, dies charged to respective buyers of the forgings separately in the assessable value - Availment of CENVAT Credit.
Application seeking restoration of appeal - non-prosecution of the case - seeking change in the cause title - HELD THAT:- For the mistake of the counsel in not intimating the Tribunal about the change of name and address on merger with M/s. Kems Forgings Limited, the appellant cannot be penalised - Considering the submissions of the appellant supported by affidavit filed by the Managing Director of the company, in the interest of justice, the miscellaneous application seeking restoration of the appeal dismissed earlier for non-prosecution vide order dt. 20.08.2019 is allowed and the said order is recalled and appeal is restored to its original number. Also, the miscellaneous application seeking change of cause title from M/s. Sree Lakshmi Forge & Engineers Ltd., to M/s. Kems Forgings Ltd. on the basis of the certificate issued by the Registrar of Companies dated 14.07.2011 is allowed and the appellant’s cause title is changed from M/s. Sree Lakshmi Forge & Engineers Ltd., to M/s. Kems Forgings Ltd. Registry is directed to make necessary changes regarding cause title and address in the records as well as database.
Short payment of duty - non-inclusion of value of the said moulds, dies charged to respective buyers of the forgings separately in the assessable value - Section 4 of the Central Excise Act, 1944 - HELD THAT:- Initially, in the demand notice, the entire cost of the dies / jig fixtures proposed to be included assuming that the same have been used in the manufacture of forgings and its cost has been recovered from the customers. However, no evidence has been placed in this regard in spite of two rounds of litigation before the adjudicating authority. The learned Commissioner (Appeals) has now erred in remanding the matter to examine the issue of inclusion of the amortised cost of dies in the value of the forgings without analysing the evidence on the allegation of receipt of additional cost of the dies / blocks or inserts by showing separately in the invoice without payment of duty - the cost/value of the inserts, which are fixed with the blocks of the appellant and exhausted during the course of manufacture of forgings cannot be included as no evidence has been placed on record indicating that the same are recovered separately along with the value of the forgings. Thus, the finding of the learned Commissioner (Appeals) remanding the matter to add the amortised cost of the dies / blocks to the transaction value of forgings is erroneous; hence cannot be sustained.
Availment of CENVAT Credit - HELD THAT:- The invoices were raised on their account and the materials were shipped to the appellant and have been received as indicated in their material receipt register (pages 52 to 59 of the appeal paper book), the relevant transport receipts from the supplier M/s. Mahindra Intertrade Ltd. A/c of Sree Lakshmi Industrial Forge & Engineers Limited have been placed. The said goods are duly accounted for in their stock register. They have cleared the said goods later and necessary invoices are raised for clearance the goods ‘as such’ in favour of M/s. Southern Steel & Forgings Ltd. The receipt and corresponding clearance invoices in respect of M/s. Southern Steel & Forgings Ltd. are enclosed with the appeal (pages 32 to 51); hence it is sufficient to accept that the materials were received and utilized in the premises of the appellant - there are no reason to deny the cenvat credit on the basis of the aforesaid documents and to remand the matter to the original authority to examine the evidences enclosed, when the same had not been examined in the two rounds of adjudication before the original authority.
Consequently, another remand to verify the cenvat credit documents would not yield any fruitful result - the impugned order is set aside - appeal allowed.
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2023 (12) TMI 1000
CENVAT Credit - inputs - capital goods - structural steel items (plates falling under Chapters 69, 72, 73, 84 and 85) as part of modernization of the plant as well as their existing unit - Ld. Commissioner has denied the credit on the 'plates' mainly on the ground that they fall under Chapter 72 of the Central Excise Tariff, which are excluded from the definition of 'Capital goods' - HELD THAT:- In the impugned order credit has been denied on many items which are classifiable under Chapter 84 and 85 also. They fall under the definition of ‘capital goods’ under Rule 2(a) of the CCR, 2004 and hence they are entitled for the credit as 'Capital goods'.
Remaining credit availed on goods falling under Chapters 72, 73 and 74 - HELD THAT:- The impugned order has erroneously held that the ‘plates’ are used in factory shed, construction of building foundation etc. and dismissed the CE certificate furnished by the Appellant. The CE certificate certifies the end use of such plates by the Appellant viz. plates were used as components, parts or accessories of Kiln, Milling Machine, Coke Oven Gas, Pollution Control Equipment, Storage Tank, Kiln, etc. - the adjudicating authority has not given any valid reason for rejecting the CE certificate. Further, in this case the plates were not used as building materials for constructing factory shed, etc. They are used in construction of machinery, which are capital goods. Therefore, the credit on such plates cannot be denied.
The impugned order has relied upon Notification No. 16/2009-CE (NT) dated 7.7.2009 which amended explanation 2 to Rule 2(k) of the CCR, 2004 to specifically exclude angles, channels, TMT bards used for construction of factory and laying of foundation or making of structures for support of capital goods - the 'plates' are inputs for the capital goods and hence they are eligible for the credit availed on the 'plates' as 'inputs' - the demand confirmed in the impugned order is not sustainable. Since the demand 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 999
Area based exemption - exemption Notification No. 01/10-CE dated 06.02.2010 - substantial expansion - expansion of capacity or modernization and diversification or not - HELD THAT:- The purpose stipulated in para 8(b)(i) of expansion of capacity means expansion of capacity of the existing product or diversification from the existing product. Further, it is found that the Commissioner (Appeals) in para 7(i) has observed that exemption notification has to be interpreted by taking into consideration, the language of the notification which has to be given its due effect. If the tax payer falls within the plain terms of the exemption, it cannot be denied its benefit by calling any aid a supposed intention of the exempting authority. There are catena of judgments that the reading of the Notification cannot be done in the manner, so as to give a narrow and restricted meaning. It is well settled that the interpretation of the Notification should not be done in such a way as to make the notification otiose or nugatory.
There are no infirmity in the impugned order - appeal of Revenue dismissed.
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2023 (12) TMI 998
Exemption from payment of duty under N/N. 22/2003 dated 31.03.2003 - goods cleared to 100% EOU - inputs cleared as such - period June 2010 to September 2010 - HELD THAT:- For a different period, the Tribunal in M/s. Ajinomoto India Pvt. Ltd. Versus CCE, Chennai-IV
[2018 (7) TMI 85 - CESTAT CHENNAI] had remanded the matter to verify whether any consignment was cleared as such by the appellant.
On perusal of the records, there are no sufficient clarity as to whether the procured goods entirely have been re-packed and re-labelled. Needless to say in the said activities are carried out then it amounts to manufacture. The Ld. Counsel has submitted that they would be able to furnish documents to establish their contention with regard to re-packing and re-labelling of the goods. As the issue in the appellant’s own case has been considered favourably by the authorities below for several consignments, the matter requires to be remanded to the adjudicating authority who is directed to consider the contention of the appellant that their activity amounts to manufacture and verify the same.
The impugned order is set aside - the appeal is allowed by way of remand.
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