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Central Excise - Case Laws
Showing 261 to 280 of 1430 Records
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2023 (11) TMI 60
Pre-deposit - Requirement of mandatory pre-deposit u/s 35-F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 - financial hardship involved in such compliance - HELD THAT:- A perusal of the application would go on to show that the merits of the case had been addressed as to the liability of the petitioner to pay service tax as in the application there has been no such averment made regarding the undue hardship which would be caused to the petitioner which the Tribunal could have decided upon regarding dispensing with the liability subject to certain conditions. The amount mentioned in the application itself is Rs. 10,08,243/- and bare averment has been made that it would lead to great financial hardship to the appellant-firm which has already raised loans to the extent of Rs. 12,49,76,747/- which are outstanding.
Keeping in view the earlier decision of this Court in M/S G.D. GOENKA WORLD INSTITUTE, SANJAY AGGARWAL, M/S IL& FS RAIL LIMITED, M/S AUTO DYNAMIC CORPORATION, M/S OCEANIC CONSULTANTS PRIVATE LIMITED, M/S G.D. GOENKA WORLD INSTITUTE (UNIT OF GDG EDUCATION TRUST) , TARUN MONGA AND M/S SWIFT FUNDAMENTAL RESEARCH AND EDUCATION SOCIETY VERSUS UNION OF INDIA AND OTHERS AND COMMISSIONER OF CENTRAL EXCISE COMMISSIONERATE, LUDHIANA AND ANOTHER [2018 (11) TMI 522 - PUNJAB AND HARYANA HIGH COURT], the Tribunal was well justified in insisting for the mandatory pre-deposit as required under Section 35-F of the Act. It was for the petitioner who had to put-forth his case in the application in a detailed manner as to how undue hardship would be caused to him.
The present writ petition warrants no interference under Article 226 of the Constitution of India and the same is hereby dismissed in limine.
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2023 (11) TMI 59
Reversal of CENVAT Credit - manufacture and clearance of Hemophilus Vaccine which is duty free - Rule 6(3) of CCR, 2004 - Appellants or M/s Panheber are manufacturers of the vaccine or not - HELD THAT:- The Drug Controller has categorically clarified vide Letter dated 06.04.2017 that M/s Panacea Biotec Pvt. Ltd. and M/s Panheber Biotec Pvt. Ltd. were issued different drug manufacturing licences for separate modules in the year 2008 and that M/s Panheber Biotec Pvt. Ltd. has been renamed as M/s Panera Biotec Pvt. Ltd. registered with the same address. We find that there is an Agreement dated 10th July, 2008 between the appellant and M/s PanEra Biotec Pvt. Ltd. and the same is named “Agreement for providing manufacturing facility, utilities and services of employees”. Similarly, the books of accounts of M/s Panheber Biotec Pvt. Ltd. indicates that they have taken various assets situated at Lalru, Punjab on operating lease agreements from its associate M/s Panacea Biotec Pvt. Ltd. (the appellant); these are generally non-cancellable and are renewable by mutual consent on mutually agreed terms. The books of accounts do indicate that lease amounts have been paid to the appellant.
Learned Commissioner has relied upon the fact that there are not records maintained by M/s Panheber and that the records maintained by the appellant do have the entries for the manufacture of the said vaccine - It is also not on record whether any communication or correspondence was made with the Drug Authorities to ascertain the claims of M/s Panheber and the appellants. Drug manufacturing being closely monitored by various agencies and subject to various controls cannot happen in a secretive manner. It is on record that various authorities, national and international, have visited the facility where M/s Panheber have manufactured the vaccines. Under the circumstances, the claim of the appellants cannot be simply brushed aside saying that they might have contravened Drug Laws and that it was a flimsy stand taken by the appellants.
The Department having not negated the claims of the appellant that it was not the appellants who have manufactured impugned exempted product i.e the Hemophilus Flu Vaccine. Therefore, there are no case made by the Department to invoke the provisions of Rule 6(3) of the CCR, 2004.
Coming to the alternate submission that Rule 6 provides for the situations where a manufacturer manufactures dutiable as well as exempted products and avails CENVAT credit on all the inputs/ input services/ capital goods and that the options given under Rule 6(3) of CCR, 2004 cannot be enforced, it is found that as submitted by the learned Counsel for the appellants that Hon’ble High Court of Telangana has clearly interpreted the provisions in favour of the appellants. The findings of the Hon’ble High Court are clear that Rule 6 does not provide any mechanism for recovery of the said “10% amount” and that the Department is free to invoke Rule 14 of CCR, 2004 to demand wrongly availed credit, if any - the issue stands decided in favour of the appellants on the alternate submissions also.
Appeal allowed.
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2023 (11) TMI 58
Reversal of CENVAT Credit as per provisions of Rule 3 (5) of Cenvat Credit Rules, 2004 - clearance of transformer oil ‘as such’ along with final product - HELD THAT:- From the flow chart produced by the learned counsel for the respondent, it is evident that the transfer oil purchased by them has been used for inspection and testing during the process of manufacture. The adjudicating authority in para-12 has considered the use of transformer oil in the inspection and testing stage of manufacture of transformer - While dispatching the transformer, required quantity of transformer oil is filled and the balance required quantity is cleared in barrels along with transformer.
On perusal of the impugned order, it is found that the reason for holding that the credit need not be reversed is not merely because the value of inputs (transformer oil) has been included in the assessable value but also upon the fact that the transformer oil is used in the process of manufacture for inspection and testing of transformers and not cleared ‘as such’.
The transformer oil purchased by the respondent was used inside the factory in the process of manufacture and only for convenience has been transported in barrels along with finished product. The transformer oil is not cleared ‘as such’ - there are no grounds to interfere with the impugned order. The same is sustained.
The appeal filed by the Department is dismissed.
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2023 (11) TMI 57
CENVAT Credit - CVD of 2% paid on imported steam coal - Rule 3 of CCR 2004 - HELD THAT:- The issue is whether the appellant is eligible to take the CENVAT Credit of 2% CVD paid on imported steam coal vide notification 12/2012 Cus. dated 17/3/2012. The issue has been considered by the Tribunal in the case of M/S. TAMIL NADU NEWSPRINT & PAPERS LIMITED VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, TIRUCHIRAPPALLI [2021 (10) TMI 13 - CESTAT CHENNAI] where it was held that the adjudicating authority has committed a legal error while denying the benefit of reduced CVD on imported coal while placing reliance upon the Excise notification for manufacture of coal. Order is therefore, held not sustainable and accordingly, is hereby set aside.
The demand cannot sustain and requires to be set aside. The impugned order is set aside. The appeal is allowed.
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2023 (11) TMI 56
Demand of duty by denying the benefit of exemption - Capital goods for specific use - Clearance of hydraulic excavators to contractors/construction companies - violation of Notification No.108/95 CE dated 28.08.1995 - goods withdrawn from the project or not - HELD THAT:- Regarding scope of denovo adjudication, while remanding the matter to adjudication authority, this Tribunal has not considered the plea of appellant that they have not removed the goods before completion of the project and only held that “demand against the appellant can be sustained only for one year period which is within the period of limitation” - Hence considering the issue whether the appellant violated the condition of exemption notification by removing the goods before completion of the project cannot be considered beyond the scope of remand order.
There are strong force in the submissions made by the appellant that the goods supplied during the relevant period by availing the exemption notification whether withdrawn from the project has to be examined and only if it is removed before completion of the project, the benefit of notification can be denied. Merely based on presumption that few of the hydraulic excavators procured from appellant have been withdrawn from the project, few are in the process of being withdrawn and others to be withdrawn once the project is completed, no finding can be made to deny the benefit of ibid notification - There is no averment in SCN or impugned order regarding date of sale, date of removal of the goods and date of completion of the project to ascertain whether the goods were removed from the project prior to completion of the project for one year where duty confirmed.
Hence in the absence of any evidence regarding removal of the goods before completion of the project, the benefit of the notification cannot be denied and the demand against the appellant is unsustainable - appeal allowed.
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2023 (11) TMI 55
Levy of Excise Duty - packaging charges being part of the value but no duty was paid claiming it as freight charges - recovery of CENVAT Credit on rejected/returned goods - demand of differential duty availed on inputs used in the manufacture of Aluminium Foils.
Demand of Rs. 24,586/- on packaging charges being part of the value but no duty was paid claiming it as freight charges - HELD THAT:- Analyzing the evidences, the adjudicating authority after scrutiny of the relevant invoices placed on record, recorded the findings that even though the appellant have claimed that these are transport charges and not handling charges, however, supporting transport receipt has not been produced. Since no evidence has been produced by the appellant before the lower authorities nor before this Tribunal, thus, duty of Rs. 24,586/- payable on packaging charges is confirmed.
Regarding the CENVAT Credit of Rs. 44,469/- on rejected/returned goods - appellant failed to produce the evidences ie. proper account of receipt and disposal of the same - HELD THAT:- The appellant had not enclosed any evidences in this regard, thus it is clear that they had not maintained proper records of receipt goods, processes carried out and disposal of the said goods under Rule 16 of CER,2002 on which credit availed; hence, the said demand is also confirmed.
Recovery of differential duty as equivalent to CENVAT Credit involved on the inputs on the ground that the processes undertaken by the appellant do not result in to manufacture - HELD THAT:- The processes carried out by the Appellant on the Aluminum Foils received in the factory are described as foil wash and thereafter subjected to nitro cellulose and then slit into different sizes as per requirements of customers. It is not a simple process of merely cutting the foils into different sizes but other processes are involved which would definitely satisfy the definition of manufacture pertaining Section 2(f) of Central Excise Act, 1944. Besides, the appellant have been discharging duty on finished goods treating the said process as manufacture - Hon’ble Bombay High Court in the case of Commissioner of Central Excise, Pune-III Vs. Ajinkya Enterprises [2012 (7) TMI 141 - BOMBAY HIGH COURT] held that in the present case, the assessment on decoiled HR/CR coils cleared from the factory of the assessee on payment of duty has neither been reversed nor it is held that the assessee is entitled to refund of duty paid at the time of clearing the decoiled HR/CR coils.
The demands of Rs.24,586/- and Rs.44,469/- with interest are confirmed and the demand of Rs.2,30,887/- is set aside. The impugned order is modified to that extent and the appeal is partly allowed to that extent.
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2023 (11) TMI 12
Reversal of CENVAT Credit - manufacture of dutiable as well as exempted medicaments - eligibility of the cenvat credit should be considered as on the date of receipt of the service or on taking the credit in the books - HELD THAT:- It is a settled law that the eligibility of the cenvat credit has to be considered as on the date of receipt of the services for the reason that the moment appellant received the service along with invoices on that date the cenvat credit stand accrued to the appellant.
As per the excel sheet submitted by the appellant in respect of all the invoices related to the credit of Rs. 1,58,66,384/-, it is observed that all the invoices are pertaining to the period prior to 01.04.2011. As it is opined that the eligibility of the credit to be considered as on date of receipt of service but in the present case the Adjudicating Authority has not examined the actual date of receipt of service. Therefore, for this limited purpose matter needs to be remanded back to the Adjudicating Authority.
The Adjudicating Authority opinion that only for the reason that the credit was availed after 01.04.2011 when Rule 6(5) was omitted, the appellant are not eligible for cenvat credit on 16 services as prescribed in the said Rule cannot be agreed. Even though the Rule 6 (5) was omitted from 01.04.2011, if it is proved that services were received prior to 01.04.2011, the credit taken after 01.04.2011 shall be admissible to the appellant.
The appeal allowed by way of remand to the Adjudicating Authority.
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2023 (11) TMI 11
Excisability - spent solvent (DMF) arising during course of manufacturing of dutiable “Sucralose” - reversal of CENVAT Credit as per the provisions of Rule 3 (5A) of the CENVAT Credit Rules, 2004 - clearance of waste and scrap arising out of items on which CENVAT Credit was not availed at the time or purchase and on items which were packing material of inputs which were used in the manufacture of dutiable goods - Personal penalties imposed under Rule 26 of Central Excise Rules, 2002.
HELD THAT:- So far as the dutiability of the spent solvent is concerned same has already been decided by Hon’ble Apex Court in decision of COMMISSIONER VERSUS AUROBINDO PHARMA LTD. [2011 (5) TMI 925 - SC ORDER], the Hon’ble Supreme Court’s decisions has endorsed the findings given by Hon’ble Andra pradesh High Court in case of above mentioned party’s case in COMMISSIONER OF C. EX., HYDERABAD-I VERSUS AUROBINDO PHARMA LTD. [2010 (10) TMI 175 - ANDHRA PRADESH HIGH COURT] where it was held that the department accepted the assessee’s contention that at the relevant period the spent solvent is not a marketable product after process of manufacture.
Thus, the waste solvents is not dutiable and therefore the demand of Central Excise duty amounting to Rs. 2,02,242/- is not sustainable.
Dutiability of the waste scrap cleared by the appellant - HELD THAT:- The department has not produced any evidence to contradict the submissions which have been made by the appellants that the waste and scrap which have been cleared without payment of duty has arisen from the materials on which CENVAT Credit has not been availed by the appellant - Similarly for the waste of drums and packaging material which have been cleared without payment of duty. It is found that matter is no longer res integra as Hon’ble Supreme Court in case of COMMISSIONER OF CENTRAL EXCISE VERSUS WEST COAST INDUSTRIAL GASES LTD. [2003 (4) TMI 110 - SUPREME COURT] has already decided the matter holding that waste in form of drums/ barrels in which the raw material has been received by the manufacturer could not be treated as waste arising out of processing of the inputs for which the credit has been taken and therefore no duty can be demanded on the same.
Personal penalties imposed under Rule 26 of Central Excise Rules, 2002 - HELD THAT:- Since the issue on merit is being decided in favour of the appellant as in the foregoing paras the cause of penalizing the appellants get extinguished automatically and therefore we hold that no penalty is imposable on the appellants. Accordingly the appeals are allowed.
The demand on the above mentioned two issues are not maintainable and therefore impugned order set aside - appeal allowed.
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2023 (11) TMI 10
Recovery of CENVAT Credit alongwith interest and penalty - availing credit without actually supplying the goods - proper procedure under Section 9D of CEA followed or not while recording statements of various persons - HELD THAT:- Evidently, the statements will be relevant under certain circumstances and these are given in clauses (a) and (b) of sub-section (1). There is no assertion by either side that the circumstances indicated in (a) existed in the case. It leaves us with (b) which requires the court or the adjudicating authority to first examine the person who made the statement and form an opinion that having regard to the circumstances of the case, the statement should be admitted in evidence - all the statements are not relevant to the proceedings.
It has been held in a catena of judgments including M/S JINDAL DRUGS PVT. LTD. AND ANOTHER VERSUS UNION OF INDIA AND ANOTHER [2016 (6) TMI 956 - PUNJAB & HARYANA HIGH COURT] that section 9D is a mandatory provision and if the procedure prescribed therein is not followed, statements cannot be used as evidence in the proceedings under Central Excise Act.
Therefore, the 35 statements relied upon in the SCN are not relevant and hence also not admissible.
Once the registration is issued by the department, the buyer of goods can procure goods from such a registered trader and take credit on the strength of such invoices. The case of the Revenue is that the traders and the manufacturers never existed but they issued Cenvatable invoices only on paper and had not supplied duty paid scrap at all and they could have supplied bazar scrap (post consumer scrap) against such invoices - As per the SCN, the manufacturers and traders did not exist and for that reason Cenvat credit taken by the assessee needed to be reversed but the manufacturers and traders also existed at the addresses indicated therein and they were asked as to why penalties should not be imposed on them - according to the impugned order, while these entities did not exist at all and for that reason, Cenvat credit is inadmissible on the basis of the second stage dealer’s invoices issued on the basis of the invoices issued by these manufacturers and first stage dealers on the one hand, they did exist and had been served the SCN and notices of personal hearing but such opportunities were not availed.
The appellant, as the buyer, cannot be expected to investigate if the departmental officers had issued the registrations correctly or not and take business decisions accordingly. The appellant is also neither required nor is competent to launch an investigation to see if the registered dealer who was issuing to him an invoice had, in fact, maintained the records properly and that he had procured the goods from a first stage dealer who existed at his address and further that first stage dealer had, in fact, procured the goods from a manufacturer and that such manufacturer (who is registered with the department) existed, manufactured the goods, accounted for them properly and issued a correct CENVATABLE invoice to the first stage dealer.
The reasonable precautions which the appellant or any other assessee is expected to take is placing orders on a registered manufacturer or dealer and receiving goods along with a Cenvatable invoice indicating all required details. The assessee is not required to launch an investigation. At any rate, as discussed above, Revenue itself was ambiguous about the existence of these units from the time they were registered until and including when the impugned order was issued - there are no grounds to deny Cenvat credit to the assessee. Consequently, the penalties imposed on Drolia and Choudhary also cannot be sustained.
The impugned order is set aside - Appeal allowed.
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2023 (11) TMI 9
Levy of penalty - Evasion of central excise - wrongful claiming of SSI exemption - abetting M/s. Micro Spares to show separate clearances of goods on paper as units having a separate legal entity - HELD THAT:- It was found that the main noticee M/s. Micro Spares has already settled the matter under SVLDR Scheme and were issued Form SVLDRS – IV dated 15.6.2020 (discharge certificate for full and final settlement of tax dues). Based on the said certificate, the appeal filed by M/s. Micro Spares was dismissed as settled under SVLDR Scheme.
This is a case in which the main noticee has settled the dispute under the SVLDRS Scheme and the issue cannot now been re-opened and examined on merits. Further the co-noticees who were subjected to penalties only, have not filed a declaration under the SVLDRS Scheme before the scheme’s closure. Having not done so, their appeal continues to lie before this Tribunal pending disposal. Considering the facts and circumstances of the cases, the discharge given to the main noticee and the clarification given by CBIC regarding co-noticees under the SVLDR Scheme, 2019, it is felt that a reduction in penalty would serve the ends of justice.
The impugned order is modified with respect to the appellants and reduce the penalty to Rs.50,000/- (Rupees fifty thousand) each only - appeal allowed in part.
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2023 (11) TMI 8
Invocation of provisions of Section 11AC of the Central Excise Act to impose equivalent penalty on the appellant - Valuation of goods - Heat Exchangers - related parties or not - Applicability of Transaction value' under Section 4(1)(a) of CEA - HELD THAT:- HELD THAT:- In the present case the period involved is prior to 29.08.2012 the date of judgment of the Hon’ble Apex Court in COMMISSIONER OF CENTRAL EXCISE, MUMBAI VERSUS M/S FIAT INDIA PVT LTD & ANR [2012 (8) TMI 791 - SUPREME COURT] and in accordance with the Board’s circular, extended period of limitation could not have been invoked in the present case. If that is so the penalties under Section 11 AC could not have been imposed on the appellant. In view of the decision of Hon’ble Supreme Court in the case of UNION OF INDIA VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS AND COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE VERSUS M/S. LANCO INDUSTRIES LTD. [2009 (5) TMI 15 - SUPREME COURT]. Accordingly, the penalty is imposed under Section 11AC are set aside.
The appellant have themselves on the basis of their own assessment, paid the duty, which might have been available as credit to the OEM manufacturers. Accordingly, the merits of the duty already paid and confirmed by the impugned order, not dealt upon. In the show cause notice was not to be issued in the present case - In case of M/S. STEEL AUTHORITY OF INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2019 (5) TMI 657 - SUPREME COURT] a three judges bench of Hon’ble Supreme Court observed The assessee volunteered and made payment in October 2006. We find merit in the finding by the authority that this is a case where therefore the payment made by the assessee is to be treated as one falling under Section 11A(2)(b). This meant also that there was no need for determination of the duty within the meaning of Section 11A(2)(a) or issuance of notice under Section 11A.
Following the decision, no penalty proceedings in terms of Section 11AC could have been initiated against the appellant and the same needs to be set aside.
Appeal allowed in part.
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2023 (11) TMI 7
Clandestine removal - Chhakkdo Rickshaw - evasion of payment of Central Excise Duties by suppressing their production - penalty under Rule 26 of the Central Excise Rules, 2002 for certain omissions and commissions will laid to evasion of Central Excise duty - HELD THAT:- The appellant was having a registration with Automotive Research Association of India (ARAI-Pune) for production of vehicles in name of his firm namely Hakikat Auto Industries, Rajkot- Bhavnagar Highway Road, Chanvand, Amreli. He was also aware that manufacturer of the “Chhakkdo Rickshaw” cannot get their product registered with the RTO without ARAI certificate/registration. The appellant have facilitated registration of the “Chhakkdo Rickshaw” manufactured by M/s Shree Rajshakti Automobiles, Ahmedabad by providing his ARAI registration and thus facilitating sale and sale of “Chhakkdo Rickshaw” which was cleared without payment of Central Excise Duty.
From the facts of the matter and as per the provision of the Rule 26 of the Central Excise Rules, 2002, it can easily be inferred that the appellant though may not have physically handle the transportation, sale, purchase of “Chhakkdo Rickshaw” which was cleared without payment of the duty. However, he was fully aware that same are getting cleared without proper invoices and the manufactures of the “Chhakkdo Rickshaw” were not having required ARAI registration - The appellant has conscientious by provider his ARAI registration to the manufacturer/ buyers of non-duty paid Rickshaw for getting the same registered with RTO. Thus he has dealt with non-duty offending good in “any other manner”. Thus, he has facilitated the clearance of excisable goods without the payment of duty which ultimately resulted into evasion of the Central Excise Duty by manufacturer of “Chhakkdo Rickshaw”.
The appeal is without any merit and is set aside - appeal dismissed.
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2023 (11) TMI 6
Penalty u/r 26 of the Central Excise Rules, 2002 - appellant was Director during relevant period - denial of benefit of exemption notification for Magnesium Sulphate which was being manufactured by the main appellant firm - HELD THAT:- Since the demand of the duty has already been settled under SVLDRS Scheme and there is no cause for imposition of penalty under Rule 26 of the Central Excise Rules, 2002 on the director of the company who has been a paid employee and issue of the demand was primarily of interpretation of the exemption notification.
The decision in case of SHRI V.K. AGGARWAL AND SHRI J.K. AGGARWAL VERSUS COMMISSIONER OF CENTRAL TAX, CGST AND CENTRAL EXCISE, NEW DELHI [2023 (9) TMI 178 - CESTAT NEW DELHI] followed where it was held that The judgements so referred clearly says that when the demand of duty has been settled under SVLDR Scheme, the imposition of penalty would fail on simple ground that if the appellants had applied under the said scheme, they would have paid 'nil' duty, in view of the relief available to them under Section 124(1)(b) of the Finance Act.
Appeal allowed.
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2023 (11) TMI 5
Recovery of duties of central excise - validity of order beyond the direction in the remand proceedings - activity of ‘manufacture’ in accordance with note 6 in section XVI of schedule to Central Excise Tariff Act, 1985 on ‘welding machines’ imported - exemptions available to ‘small scale industrial (SSI) units’ in terms of notification no. 8/2003-CE dated 1st March 2003 - HELD THAT:- The impugned order, insofar as it relates to the first issue contributing to substantial portion of the demand, contains frequent reference to the order that had been set aside by the Tribunal with a direction to be remanded afresh. It does not bear elaboration that it is beyond the scope of remand proceedings before an adjudicating authority to refer to an order that had ceased to exist by order of appellate authority and thus strictly barred from either relying on findings therein or drawing upon assertions therein in denovo proceedings. Further, the order now impugned before us appears to be replete with defence of findings in the order that had been set aside by the Tribunal.
This is not the intent of a remand by the Tribunal and exemplifies a casual disregard for the nicety of adjudication proceedings and lack of diligence in complying with the orders of appellate authority. Such an order is not amenable to appellate resolutions for those reasons.
Matter remanded back to the original authority to undertake fresh proceedings and issue an order that ultimately reflects the application of known law to establish facts by the adjudicating authority in office - appeal allowed by way of remand.
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2023 (11) TMI 4
CENVAT Credit - removal of 'moulds' as such or deployment with the vendors / job workers - removal of ‘epoxy moulds’ to manufacturer of ‘parts of automobile’ seats as such - permissibility of such transfers without reversal of CENVAT credit prior to such incorporation - rule 3(5) of CENVAT Credit Rules, 2004 - HELD THAT:- It is found that rule 9(3) of CENVAT Credit Rules, 2004, relating to inputs or capital goods removed ‘as such’ requires issue of invoice referred to in rule 9 of CENVAT Credit Rules, 2004 which does not apply to the present facts inasmuch as ‘moulds’ are not sold to the vendors. The removal of such moulds to ‘job-worker’ admittedly governed by rule 4(5) of CENVAT Credit Rules, 2004, permits retention of credit for a time and reversal upon completion of deadline till such time when the goods are not returned to the principal manufacturer - the submission cannot be accepted that the incorporation of 2010 to cover removal to another manufacturer or job-worker is not clarificatory in nature especially as rule 4(5)(a) of CENVAT Credit Rules, 2004, intended for such clearance to the job-worker, finds mention again in rule 4(5)(b) to cover situations of such not being returned to the principal manufacturer.
The impugned order set aside - matter remanded back to the original authority for fresh determination on ascertainment of facts relating to the transactions - appeal disposed off by way of remand.
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2023 (10) TMI 1517
100% Export Oriented Unit (EOU) - benefit of exemption notifications for the clearance of Linear Alkyl Benzene Sulphuric Acid and clearance of Spent Sulphuric Acid to fertilizer companies - N/N. 2/2008-CE dated 01.03.2008 and N/N. 4/2006-CE dated 01.03.2006 - HELD THAT:- The said issue has been decided by this Tribunal in their own case M/S A.R. STANCHEM PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA III [2023 (10) TMI 1297 - CESTAT KOLKATA], wherein this Tribunal has observed that the appellant is entitled to the benefits of Notification No.2/2008-CE and Notification No.04/2006-CE.
Conclusion - The appellant has correctly paid their duty liability and is entitled to the exemptions under Notification No. 2/2008-CE and Notification No. 4/2006-CE.
Appeal allowed.
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2023 (10) TMI 1499
Clandestine removal - demand confirmed mainly on the basis of the consumption of gas required for manufacture of the final product - case is mainly based on statement of various persons - right to cross-examine the statements - principles of natural justice - HELD THAT:- The appellant in the reply raised specific issue that certain documents relied upon/non relied upon were not provided to the appellant. The appellant also requested for cross examination of the witnesses whose statements were heavily relied upon to confirm the charge of clandestine removal and consequential demand of Excise duty. It os found from the entire adjudication order the Adjudicating Authority has not given any heed to the request of the appellant in as much as they have specifically asked to provided relied upon/ Non relied upon documents and cross examination of the witnesses. The case is mainly based on statements of various persons.
It is statutory mandate in terms of Section 35D of the Central Excise Act, 1944 that the Adjudicating Authority that it is incumbent upon the Adjudicating Authority to examine/cross examine the witnesses before accepting the statements of those witnesses as evidence for adjudication of the case. In the present case even despite retraction by the witnesses the adjudicating authority has not granted the cross examination of the witnesses. In this fact the entire order of the Adjudicating Authority based on mainly statements of the various persons, without allowing cross examination, is not sustainable.
The adjudicating authority must allow the cross examination of the witnesses and also provide the documents required by the appellant, if not earlier provided. The adjudicating authority has gravely erred in violating the principles of natural justice. Therefore, the order without following the principle of natural justice cannot be sustained as held by the Apex Court in number of judgments.
Conclusion - The adjudicating authority has gravely erred in violating the principles of natural justice. Therefore, the order without following the principle of natural justice cannot be sustained.
Matter to the Adjudicating authority for passing a fresh de-novo order - appeal allowed by way of remand.
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2023 (10) TMI 1457
Eligibility of exemption Notification No. 03/2005 as superseded by N/N. 12/2012 in respect of hot rolled Patta Patti - Imposition of penalty on the partner of the firm.
Eligibility of exemption N/N. 03/2005 as superseded by N/N. 12/2012 in respect of hot rolled Patta Patti - HELD THAT:- From the Notification particularly the Sr. No. 203 which provides the exemption to Pattas and Pattis subject to any process other than cold rolling which means if the Patta or Patti are cleared which has not undergone the process of cold rolling , the same goods are covered under exemption Sr. No 203 subject to falling under Chapter heading 7219 or 7220.
In the present case the goods in question is hot rolled Patta or Patti falling under Chapter 72201290. The hot rolled Pattas and Pattis are undisputedly does not undergo the process of cold rolling therefore, irrespective of any other process carried out to manufacture HR Pattas and Pattis , the exemption is clearly admissible to such goods.
From the clarification, Central Excise Tariff Conference by the Central Board of Excise and Customs by Instruction F. No. 96/85/2015-CX.I dated 07.12.2015, it was made absolutely clear that all the process prior to cold rolling stage is eligible for exemption from duty under Sr. No. 203 of Notification No. 12/2012 dated 17.03.2012.
In the present case the Hot Rolling process is admittedly the process which is taken place prior to the process of cold rolling, therefore, in view of the clarification, the Hot Rolled Pattas and Pattis are clearly covered under the Notification No 12/.2012- CE dated 17.03.2012 under Sr. No. 203.
Imposition of separate penalty on the partner - HELD THAT:- Where there is a case against the partnership firm, no separate penalty on the partner cannot be imposed for the reason that the partnership firm is consisting of partners, therefore, imposing separate penalty on the partners will be double jeopardy on the same partner. This has been settled by the Hon’ble Gujarat High Court that separate penalty on the partner cannot be imposed in case of PRAVIN N. SHAH VERSUS CESTAT [2012 (7) TMI 850 - GUJARAT HIGH COURT]. Moreover, since the appellant firm is eligible for exemption notification, there is no question of penalty.
The appellant are legally eligible for exemption Notification No. 12/2012- CE (203) and consequential demand of excise duty cannot be sustained - the impugned orders are set aside - Appeal allowed.
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2023 (10) TMI 1438
Valuation of sugar confectionery falling under chapter heading under 1704.90 and 1804.90 being manufactured by the appellant - individual piece weighing less than 10 grams per piece and the same are packed in 500 grams - whether such product is liable to be valued on MRP basis under Section 4A or under Section 4 of Central Excise Act, 1944? - HELD THAT:- Under the identical facts in the appellant’s own case SWAN SWEETS PVT. LTD. VERSUS COMMISSIONER OF C. EX., RAJKOT [2006 (1) TMI 269 - CESTAT, MUMBAI] it was held that wholesale pack of 500 grams to 1 kg is not retail pack and therefore taking the weight of individual piece of confectionery which is less than 10 grams will not be governed under Section 4A.
The issue is no longer res- integra, therefore, the impugned order is not sustainable, hence, the same is set aside - Appeal allowed.
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2023 (10) TMI 1390
Jurisdiction - Powers of the Revenue Department to resume inquiry into the show cause cum demand notices issued in the matters of proposed reversal under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A of the Central Excise Act, 1944, after lapse of more than 10 years - HELD THAT:- Since the proposed action regarding reversal was contemplated, the provisions of Section 11A of the Central Excise Act, 1944 are sought to be invoked for raising the demand and recovery. The provision of Section 11A inter alia provides for a period of limitation within which the notices are supposed to be issued to make the recoveries and provides that the action of recovery has to be initiated within six months/2 years from the date of notice depending upon the facts whether it is a case falling under Sub-Section 1 or Sub-Section 2 respectively. It is, therefore, abundantly clear that contrary to this statutory time limit, the respondents have now revived the inquiries after more than a decade and the action would apparently be illegal.
In respect of similar proceedings under the service tax matters under Section 73 of the Finance Act, coordinate benches of this Court in the matters of Reliance Transport and Travel Pvt. Ltd. [2022 (3) TMI 1169 - BOMBAY HIGH COURT], ATA Freight Line (I) Pvt. Ltd. [2022 (3) TMI 1162 - BOMBAY HIGH COURT] and Coventry Estate Pvt. Ltd. [2023 (8) TMI 352 - BOMBAY HIGH COURT], the actions initiated after prolonged period have been struck down.
The impugned actions of reviving the inquiries which were in cold storage for more than a decade are clearly contrary to the law and is liable to be struck down - Petition allowed.
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