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Central Excise - Case Laws
Showing 341 to 360 of 1430 Records
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2023 (10) TMI 803
CENVAT Credit - inputs and input services that have gone into the manufacture of prototype cars, manufactured and exported by the appellants for testing - duty not paid on the final goods exported - prototype motor vehicles manufactured and exported by the appellants are excisable goods or not - extended period of limitation.
Whether credit availed on inputs and input services that have gone into the manufacture of prototype cars, manufactured and exported by the appellants for testing, for the reason that duty has not been paid on the final goods exported? - HELD THAT:- The CENVAT credit is admissible to a manufacturer or producer of final products and the provider of taxable service when such inputs are received in the factory; CENVAT credit is not admissible on such quantity of inputs used in or in relation to the manufacture of exempted goods subject to some exceptions. One such exception is that there is no bar on availment of CENVAT credit when the goods are exported under bond.In the instant case, the Department attempts to argue that the motor vehicles sent abroad by the appellants for testing are not suffering any duty; no export proceeds are realized and hence, CENVAT credit is not applicable - the contention of the Department has no legal basis. As per the provisions of CENVAT credit under CCR, 2004, there is no such bar on availment of CENVAT credit when the goods are exported.
A conjoint reading of Rule 19 of CER and definition of ‘final products’ would make it clear that the argument that the export goods are not final products is not acceptable. Further, there is nothing in Rule 19 to say that in case of breach of conditions of the bond, CENVAT credit attributable to the export goods shall be disallowed. The Department was within its right to take whatever action on the appellants for not adhering to the conditions of the bond. It is not on record whether any such action has been initiated by the Department - for the reason that export proceeds are not realized, CENVAT credit,which is otherwise admissible, cannot be denied.
There is no provision under the Central Excise Rules or CENVAT Credit Rules to deny CENVAT credit just because the final products are destroyed during testing and for the reason that no export proceeds have been realized for such exports of prototypes - Hon’ble Supreme Court and the Tribunal has been consistent in holding that testing is integral to the activity of manufacture and CENVAT credit attributable to the inputs that have gone into the manufacture of said final products cannot be denied to the appellants.
Whether in the facts and circumstances of the case, extended period is invocable? - HELD THAT:- There is considerable force in the arguments of the appellants. Moreover, the Department themselves have decided the issue in favour of the appellants for the year 2014-15. Notwithstanding the fact that the said order has been appealed against, it goes to prove that the issue was not free of doubt and the appellants had reasons to entertain the view they had on the issue. As the issue involves interpretation of legal provisions, suppression etc. cannot be alleged and extended period cannot be invoked.
Both the appeals are allowed.
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2023 (10) TMI 802
Disallowance of CENVAT Credit - input services - GTA Services - place of removal - HELD THAT:- The issue in dispute is no longer res integra. The final decision on the entitlement of the CENVAT credit for the period prior to the amendment of rule 2(l) of CENVAT Credit Rules, 2004 has been set out by the Hon’ble Supreme Court in re Vasavadatta Cements Ltd, [2018 (3) TMI 993 - SUPREME COURT] though first decided by the Tribunal in ABB Ltd [2009 (5) TMI 48 - CESTAT, BANGALORE] and approved thereafter by the Hon’ble High Court of Karnataka in disposing off appeal of Revenue in [2011 (3) TMI 248 - KARNATAKA HIGH COURT], did not appear to have been followed by the adjudicating authority and probably on the premise that the matter was before the Hon’ble Supreme Court. With the finality accorded by the Hon’ble Supreme Court, the demand for the disputed period does not sustain.
Appeal allowed.
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2023 (10) TMI 801
Classification of goods - ARH-C Crude Oil (Residue Oil obtained from distillation of Water in the Raw material Comingled Crude Oil purchased by the Appellant) - to be classified under heading CETH 27090000 or under CETH 27101990? - HELD THAT:- The product ARH C Oil obtained from similar processing (Decantation & Dehydration/Distillation) by the Appellant from the bottom residue of 3 to 5% of their raw material comingled or condensate crude oil is not any new product identically, but crude oil only which merits classification under CETA Ch 27090000.
At this stage the Test reports and the Explanatory notes (HSN) to CETA 27 are noted. It is found that the 1st test report issued by the Regional Laboratory of Central Excise & Customs, Vadodara dated 3-10-2006 as issued by Chemical Examiner Mr G P Sharma reports that “the sample is in the form of free flowing liquid. It is a mixture of mineral hydrocarbon oil, having flash point below 25 Degree Centigrade. It is obtained from bitumen mineral crude.” Thereafter the test report obtained by the DGCEI on their simultaneous investigation dated 28-9-2007 issued by the same laboratory but through its Senior Chemical Examiner (Grade I) Dr T A Sreenivasa Rao states that “the sample is in the form of dark coloured free flowing liquid. It is composed of crude mineral hydrocarbon oil.” - both the test reports obtained by the DGCEI as compared by them categorized the product ARH C Oil in the category of crude oil. We therefore find that the DGCEI in their file noting found the product to be composed of crude mineral hydrocarbon oil. Accordingly all the above 3 test reports i.e. 2 from the Central Excise Laboratory Vadodara and 1 from Caleb Brett found the samples to be clearly of Crude oil and not other petroleum product.
On detailed analysis, it is found that not only the explanatory note to Ch 2709 covers the appellant’s residue bottom oil to be same as crude oil but the Note to Ch 2710 only covers within its ambit products and preparations which by weight have more than 70 % of petroleum oil or oils from bituminous minerals. And in fact there is a clear exclusion to products below 70% of such weight content.
The product ARH C Oil (Residue bottom Oil) obtained by such processing of the comingled/condensate crude oil is nothing but Crude oil itself and not any new product which accordingly merits classification under Chapter 27090000 as classified by the Appellant and not under Chapter 27101990 as done by the Revenue.
The impugned order set aside - Appeal allowed.
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2023 (10) TMI 737
Classification of Liquid Crystal Devices (LCDs) - it was held by CESTAT that Decision given in case of M/s Secure Meters Ltd. Vs. CC, New Delhi [2015 (5) TMI 241 - SUPREME COURT] followed wherein "parts suitable for use solely or principally with LCD TV" were stated not to cover LCDs for LCD TVs as specifically as description of CTH 9013 covers LCDs by name and devotes a sub heading (90138010) exclusively for it.
HELD THAT:- Appeal dismissed.
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2023 (10) TMI 736
Violation of principles of natural justice - mandatory pre-show cause notice consultation was not held - invocation of extended period of limitation - Demand raised on the basis of Form-26AS supplied by the Income Tax department - HELD THAT:- Although summons were issued to the appellant and the appellant did not join the proceedings, therefore, the demand has been raised on the basis of Form-26AS. Admittedly, no investigation has been conducted in this case at the end of the appellant by the adjudicating authority. Being the appellant a registered service provider and filing their Service Tax returns, in that circumstances, the demand cannot be raised on the basis of Form-26AS obtained from the Income Tax Department. Further, the adjudication order has been passed ex parte.
Moreover, the show cause notice has been issued to the appellant by invoking extended period of limitation and some of the demand pertains to beyond five years and in this case, the demand has to be calculated in terms of Valuation Rules, 2006. The issue in this case is whether the appellant is eligible for the benefit of Notification No.30/2012-ST dated 20.06.2012 or not?
The extended period of limitation is not invocable. Moreover, on the basis of Form-26AS, no demand is sustainable against the appellant.
Appeal allowed.
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2023 (10) TMI 735
100% EOU - non-fulfilment of export obligation - import of capital goods availing benefit of Notification No.53/97 and domestically procuring capital goods availing Notification No.1/95-CE dated 04.01.1995 - relevant date for application of rate of duty for demanding duty foregone in case of imports and domestic procurement by the EOU - duty is payable on the depreciated value or not - levy of penalties u/s 112 and 114A of the Customs Act, 1962 - Applicability of interest in terms of Section 15 read with Section 68 of the Customs Act 1962.
HELD THAT:- As per Condition No.5(6)(i) of Notification No.53/97-Cus., duty foregone on the capital goods is payable if it is not shown to the satisfaction of Assistant/ Deputy Commissioner of Customs that the said capital goods have not been installed in the factory within one year of import or within such period that may be extended, not exceeding five years, on sufficient cause being shown - In the instant case, it is not the case of the Department that the capital goods have not been installed in the factory before the expiry of stipulated period. Therefore, in terms of Condition No.5, duty has to be demanded as if the said capital goods have been removed from the warehouse or the EOU. As the capital goods are not removed from the EOU, the relevant date for the same would be the day of de-bonding or say the date of deemed removal.
Hon’ble Apex Court in the case of KESORAM RAYON VERSUS COLLECTOR OF CUSTOMS, CALCUTTA [1996 (8) TMI 109 - SUPREME COURT] held that the valuation in respect of imported capital goods would be the date on which warehousing period or extended period comes to an end. Tribunal in the case of INTERNATIONAL KNITTING LTD. VERSUS COMMISSIONER OF C. EX., MUMBAI [2012 (11) TMI 443 - CESTAT, MUMBAI] following the Hon’ble Apex Court’s decision in the case of Kesoram Rayon held that the rate prevailing on the date of deemed removal is relevant for valuation of capital goods.
Duty is payable on the depreciated value or not - HELD THAT:- The appellants also argued that learned Commissioner has demanded the entire duty whereas it has been consistently held by the Tribunal that in case of part fulfillment of export obligation,proportionate duty is to be demanded - it is found that Tribunal in the case of M/S MOONLIGHT EXIM (P) LTD. VERSUS CCE, JAIPUR [2016 (11) TMI 676 - CESTAT NEW DELHI] held that the appellants are entitled proportionate benefit of exports made against which foreign exchange was realized; CBEC Circular No.29/2003-Cus. dated 03.04.2003 also supports this view.
Applicability of interest in terms of Section 15 read with Section 68 of the Customs Act 1962 - HELD THAT:- In the case of INTERNATIONAL KNITTING LTD. VERSUS COMMISSIONER OF C. EX., MUMBAI [2012 (11) TMI 443 - CESTAT, MUMBAI], the Tribunal held that though the place may be warehouse at the time of deposit of goods but it may not be so at the time of removal of goods from that place and interest is payablein terms of Section 61 with Section 2(44) of the Customs Act, the goods are liable to interest on the delayed payment of duty.
Confiscation of goods - imposition of redemption fine and penalty - HELD THAT:- Tribunal has been consistently holding that in such circumstances, penalty cannot be imposed on EOUs for failure to achieve positive NFE. Tribunal in the case of Moonlight Exim (P) Ltd. has held that penalty is not imposable.
A conjoint reading of the relevant provisions relating to warehousing under Customs Act, 1962 and the Notifications issued and the ratio of the judgments in the cases discussed, it is found that while duty at the rate prevalent on the date of deemed removalof capital goods is payable; the appellants are entitled to the benefit to the extent of exports made by them even though they have not achieved positive NFE. However, the provisions do not seem to give any immunity as regards the payment of interest is concerned.
The matter should go back to the adjudicating authority to calculate the duty liability of the appellants - the appeal is allowed by way of remand to the Adjudicating Authority.
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2023 (10) TMI 734
Violation of principles of natural justice - opportunity to analyse or counter the findings of the Deputy Director (Cost) not provided - Valuation of goods removed to sister concerns - to be valued on the basis of cost plus 10%,in terms of Rule 8 of Central Excise (Valuation) Rules, 2000 or not - time limitation - revenue neutrality - HELD THAT:- The report of the Deputy Director (Cost) was not provided to the appellants; the working papers on the basis of which the Deputy Director (Cost) has arrived at the figures are also not given; the same are not even explained in the show-cause notice - This is a serious case of violation of principles of natural justice as the appellants have been denied an opportunity to analyse or counter the findings of the Deputy Director (Cost).
Further, ongoing through the show-cause notice, it is found that no reasonable justification has been given to invoke the Valuation Rules except for making a bland averment that the appellants are clearing goods to their sister concerns at a lower price. The variation in the quality and thickness of the goods supplied to the sister concerns has not been distinctly brought out; no chemical analysis of the products has been made. The prices of goods cleared to their sister concern are shown to have been less compared to their clearances of comparable goods to independent buyers, the Department has not made any case for taking recourse to CVR, 2000.
In the present matter it has not been disputed by the Revenue that almost 60% of the goods manufactured by the appellant are sold to the buyers who are not related and the price is the sole consideration. It clearly shows that the value of the goods at the place and time of removal is available and that price should be adopted for the purpose of ascertaining the assessable value of the goods which are used captively by Unit-I and Unit-II of the appellants.
The impugned order is not sustainable - the issue of limitation or revenue neutrality not examined as appeal survives on merits - appeal allowed.
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2023 (10) TMI 733
Valuation of motor vehicles manufactured by the job worker on the duty paid chassis supplied by the Appellant.
Whether in relation to the body-built vehicles manufactured and cleared on payment of duty, on landed cost of chassis plus job-work charges, by the body-builder on the chassis supplied by the Appellant, differential excise duty can be demanded from the Appellant by adopting the final price at which the body-built vehicle is sold by the Appellant from RSOs as assessable value for the period prior to 01.04.2007?
HELD THAT:- The issue is no more res integra as in the Appellant own case, viz. TATA ENGINEERING AND LOCOMOTIVE COMPANY LTD. AND ANOTHER VERSUS UNION OF INDIA AND OTHERS [1988 (2) TMI 72 - PATNA HIGH COURT (RANCHI BENCH), RANCHI], the Hon’ble Patna High Court has held that the Appellant who merely supplies the chassis to body-builder and receives the body-built vehicle from the body-builder, is not the manufacturer of the body-built vehicle, even though the Appellant supervises the quality of such body-built vehicles before clearance by body-builder. The Hon’ble High Court held the body builders only to be the actual manufacturers. This judgment has been affirmed by the Hon’ble Apex Court in U.O.I. VERSUS TATA ENGG. & LOCOMOTIVE CO. LTD. [1996 (1) TMI 435 - SC ORDER].
Thus, the job-worker is the actual manufacturer and not the raw-material supplier. In the present case, the activity of building body on the chassis amounts to the manufacture of motor vehicles, in terms of the Chapter Note 5 of Chapter 87 of the Central Excise Tariff Act. Accordingly, the body builder has rightly paid excise duty at the time of clearance of bodybuilt vehicle to the RSO. Thus, the demand of duty from the Appellant is not sustainable and therefore, the duty confirmed in the impugned order is set aside.
Appeal allowed.
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2023 (10) TMI 732
Reversal of CENVAT Credit of inputs gone into generation - Remission of duty applied - destruction of Gelatin Mass Waste - bio-hazardous/waste product or not - HELD THAT:- This Tribunal in their own case [2009 (3) TMI 370 - CESTAT, BANGALORE] considering the Circular issued by the Board held in their favour observing that demand for reversal of CENVAT credit on the waste product is unsustainable in law. The said view has been later upheld by the Hon’ble Karnataka High Court [2011 (4) TMI 212 - KARNATAKA HIGH COURT].
In view of the aforesaid principle of law settled by the Hon’ble High Court and later upheld by the Hon’ble Supreme Court [2012 (1) TMI 187 - SC ORDER] by dismissing the appeal filed by the Revenue; there are no merit in the impugned order.
The impugned order is set aside and appeal is allowed.
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2023 (10) TMI 731
Refund of excise duty paid erroneously - rejection of refund claim holding that there was no requirement of payment of duty in view of specific bar provided under Section 5A(1A) of Central Excise Act, 1944 - HELD THAT:- It is not in dispute that the appellant supplied the goods to a project of BHEL, supply of which enjoyed exemption under Notification No. 06/2006-CE dated 01.03.2006. Further, it is not in dispute that the appellant erroneously paid duty of exercise amounting to Rs. 55,02,800/- in respect of goods supplied to BHEL and did not charge the exercise duty from its customers. When the appellant realized that he has paid excess duty thereafter he filed the refund application under Section 11B of the Central Excise Act. Refund was rejected mainly on the ground that he has not challenged the self-assessment in appeal and without challenging the self-assessment refund claim is not maintainable. It is also not in dispute that the refund claim has been filed within the period of limitation as prescribed under the provision of Section 11B.
The revenue has raised the objection that in view of the judgment of the Hon’ble Apex Court in the case of COLLECTOR OF CENTRAL EXCISE, KANPUR VERSUS FLOCK (INDIA) PVT. LTD. [2000 (8) TMI 88 - SUPREME COURT] unless the self-assessment is altered by way of an appeal, refund claim is not maintainable - On going through the judgment of the Hon’ble Apex Court in the case of Flock India Pvt. Ltd., it is found that in that case there was a classification dispute and the classification filed by the assessee was changed by the Assistant Commissioner of Central Excise leading to levy of higher duty of exercise.
It is found that even the case of Hon’ble Apex Court of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT] is also not applicable in the facts of the present case because the said case was under provision of Customs Act, 1962 where the provisions are different from that of Excise Act and service tax.
The impugned order is not sustainable in law and the same is set aside - Appeal allowed.
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2023 (10) TMI 730
Crossing of SSI Exemption - use of brand name of others - HELD THAT:- As the very basis of the finding of non-eligibility by the original authority, endorsed in the impugned order, has thus been discarded by the Tribunal and it is not the case of the central excise authorities that the appellant had crossed the exemption threshold, nothing remains of the demand.
The impugned order is set aside and appeal allowed.
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2023 (10) TMI 729
Denial of retention of credit - supplying excess production to the Tamil Nadu Electricity Board (TNEB) - generation of electricity and steam in the coal fired 50 MW ‘captive power plant’ installed for consumption in the factory.
It is common ground that the entire production of steam and bulk of electricity were utilized in manufacture of various excisable goods.
HELD THAT:- The reviewing authority has placed emphasis in rule 2 of CENVAT Credit Rules, 2004 even though the proposal was for reversal of proportional credit by recourse to rule 6 of CENVAT Credit Rules, 2004 which is the mechanism restrictedly applicable to taking of credit correctly in terms of rule 3 therein read with rule 2(l) but to be retained subject to subsequent usage only. For denial of retention of credit after such licit availment, the provisions of rule 6 of CENVAT Credit Rules, 2004 would alone be applicable. The appellant has not been able to demonstrate, by reference to the proportionate reversal mechanism therein, that the activity of the respondent herein is susceptible to such denial.
The appeal is without merit and is dismissed.
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2023 (10) TMI 728
Demand of Central Excise Duty and Clean Energy Cess - requirement to pay duty at the time of removal by the transferor Area - period March 2011-12 to 2014-15 - revenue neutrality - HELD THAT:- It is fact on record that the Appellant has cleared the goods from their unit without payment of duty to their sister unit and the said sister unit cleared the said coals on payment of duty. Although it is a situation of revenue neutrality, but the appellant was monthly required to pay duty at the time of clearance from the transferor unit, otherwise, the Central Excise Act will become redundant - At the time of clearance of goods, the Appellants was liable to pay duty.
Extended period of limitation - HELD THAT:- When the fact of clearance of coals from the transferor unit without payment of duty was in the knowledge of the respondent as various correspondences were made during the impugned period and the show-cause notice has been issued to the Appellant by invoking extended period of limitation, in that circumstances, the whole of the demand is barred by limitation. Accordingly, on limitation, the Appellant succeeds.
On merit Appellant is liable to pay duty, but on limitation, the show-cause notice fails. Accordingly, the demand confirmed in the impugned order is not sustainable - appeal filed by the Appellant is allowed.
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2023 (10) TMI 727
Realization of 8%/10% amounts to receipt of Excise Duty - Requirement to remit the same to the Department - clearance of both dutiable and exempted goods from their factory premises - non-maintenance of separate records for inputs - HELD THAT:- The issue is no more res integra. The Larger Bench of the Tribunal in the case of UNISON METALS LTD. VERSUS COMMISSIONER OF C. EX., AHMEDABAD-I [2006 (10) TMI 171 - CESTAT, NEW DELHI] has held The scheme of the law is that manufacturers shall not collect amounts falsely representing them as central excise duty and retain them, thus, unjustly, benefiting themselves. In the present cases, (irrespective of whether the 8% payments were duty or not) since the 8% amount remain already paid to the revenue, and no amount is retained by the assessee, Section 11D has no application.
After the Larger Bench’s decision, the Board has issued Circular No.870/8/2008-CX dated 16.05.2008, wherein it has been clarified that the CENVAT credit of the said amount of 8% or 10% cannot be taken by the buyer since such payment is not a payment of duty in terms of rule 3(1) of the CENVAT Credit Rules, 2004. Therefore, the said 10% amount should be shown in the invoice as “10% amount paid under Rule 6 of the CENVAT Credit Rules, 2004”.
The impugned order is set aside - appeal allowed.
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2023 (10) TMI 726
Refund of Excise Duty paid under protest - refund is barred by time limitation or not - HELD THAT:- The appellant had paid the duty on the behest of the audit objection which itself is a payment of duty under protest. Moreover, the appellant have also clearly mentioned in their TR-6 challan that the payment of duty is under protest. The appellant have also submitted a letter declaring that such payment of duty is under protest. In this position limitation provided under section 11B is not applicable for refunding the Excise Duty.
Merely by filing the appeal, appellant’s refund cannot be with held which has been clarified by the Central Board of Excise Customs in various circulars from time to time, that unless until stay is obtained from the Higher Court the refund cannot be kept pending. Therefore, on both the counts, the appellant is entitled for refund.
Appeal allowed.
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2023 (10) TMI 725
Recovery of dues - instant appeal filed in 2011 is a claim which existed prior to approval date and stands extinguished by virtue of Resolution Plan - HELD THAT:- Taking note of the fact that the NCLT has approved the resolution plan in the insolvency proceedings in regard to the company, the appeal does not survive any more. The appeal is disposed of accordingly as dismissed.
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2023 (10) TMI 677
Reversal of cenvat credit on certain amounts written off by the vendor - Rule 3(5B) of Cenvat Credit Rules, 2004 - HELD THAT:- The credit is required to be reversed only in the circumstances when inputs or capital goods on which credit has been taken is written off fully or partially - In the instant case, the appellant have vehemently asserted that the goods have been used in the manufacture of final products. This assertion was also made before the lower authorities as well as in the present appeal. No evidence has been produced by Revenue to show that the said goods were not used in the manufacture of final product. In this background the Rule 3(5B) itself cannot be invoked for recovery of cenvat credit. The primary condition for invoking Rule 3(5B) is non use of inputs/ capital goods on which credit has been taken. The instant case is only of non-payment / waiver of the price which the appellant were require to pay to the vendor.
It is apparent that the recovery provisions for amount recoverable under Rule 3(5B) was introduced only w.e.f. 01.03.2013. The present dispute is for the period prior to the said date. In these circumstances, notification of Rule 14 to recover these amounts is doubtful.
There are no merit in the impugned order. The same is set aside and appeal is allowed.
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2023 (10) TMI 676
Reversal of CENVAT Credit - Trading activity - exempt services - services under the head of Management Consultancy Service received by a foreign person - HELD THAT:- It is seen that the management consultancy service is covered under sub clause (r) of Clause 105 of Section 65 of the Finance Act and therefore, included within the mischief of Rule 6(5) of Cenvat Credit Rules, 2004. A perusal of the impugned order shows that the Commissioner has relied on certain decisions of Tribunal holding that the trading activity is neither an output service nor a manufactured product liable to central excise duty, therefore, cenvat credit availed in respect of Trading Activity can be denied.
Since rule 6(5) of the Cenvat Credit Rules, 2004 excludes the credit availed on Management Consultancy Service from the application of Rule 6(1), 6(2) and 6(3) of the Cenvat Credit Rules, 2004, no reversal of cenvat credit is required.
The impugned order cannot be sustained. The appeal is allowed.
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2023 (10) TMI 675
Reversal of CENVAT Credit - denial on the grounds that the moulds and dyes were not purchased by the appellants but were simply supplied by the OEMs along with the credit thereof - Opportunity of being heard not provided - Violation of the principles of natural justice - HELD THAT:- The appellants not being the owners of the goods cannot avail credit.We find that the requirement for availing CENVAT credit on inputs and capital goods is that the same should have been received in the factory and that the credit availableshall be of the duties specified therein and barring the exclusions mentioned therein in the Rules and following the conditions mentioned therein. It is found that there is no condition, whatsoever, that the capital goods should necessarily be purchased or owned by the assessee. The stress of the Rules is on the use of inputs and capital goods rather than the ownership. It is on record that the appellants have reversed the credit availed, whenever such moulds and dyes have been returned back to the OEMs, in terms of Rule 5 of CENVAT Credit Rules.
The crux of the argument of the Department is that the appellants have not purchased the capital goods and as such are not the owners of the capital goods and hence, the credit availed by them is incorrect - there is no provision in the CENVAT Credit Rules prescribing that the ownership of capital goods is a precondition for availing CENVAT credit - the appellants have satisfied the conditions required for availment of CENVAT credit under the Rules and as such, the credit cannot be denied for the reason that they have not purchased the capital goods and hence are not owners of the said capital goods.
Violation of the principles of natural justice - Opportunity of being heard not provided - HELD THAT:- The appellants have demonstrated that opportunity of being heard has not been given to them even though; they have approached the office of the Commissioner on the dates on which personal hearing was fixed. There are no cognizance of the Letter dated 13.10.2011 has been taken by the Adjudicating Authority. There is nothing on record to show whether that letter has been replied or otherwise. The learned Counsel for the appellants also submits that the show-cause notice is time-barred. Considering the facts of the case and particularly, the fact that the appellants have been filing ER-1 Returns regularly, there is merit in the argument of the learned Counsel for the appellant - as the appellant has a strong case on merits, there is no need to go into the issue of limitation.
The impugned order is set aside and the appeal is allowed.
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2023 (10) TMI 674
Exemption benefit of N/N. 15/2010 – CE dated 27.02.2010 denied - inability to to produce the amendment certificate.
Denial of exemption on the ground that the appellant have violated the condition of Notification No 15/2010-CE in as much as the address of the Superintendent/ Assistant Commissioner/ Deputy Commissioner was wrongly mentioned as Changodhar whereas the good were supplied from their Odhav unit.
HELD THAT:- It can be seen that in the certificate the address of Superintendent/ Assistant Commissioner /Deputy Commissioner of Central excise was wrongly mentioned as Changodhar, Ahmedabad under which the appellant unit does not fall, however, the certificate was issued in favour of the Appellant’s Odhav Unit which can be seen from the annexure which is the part of the certificate in column 1 against the name and address of the manufacturer. In the same annexure the name and the address of the project for which goods have been supplied to the project is also mentioned. The said annexure bears the seal and signature of the project i.e. Waa Solar India Pvt Ltd as well as the appellant’s Odhav Unit. These details clearly show that the goods were supplied by the appellant’s Odhav Unit to the concern project.
From the invoices it can be seen that the invoice was raised by the appellant’s Odhav unit and the concerned project name was clearly given as Waa Solar India Pvt Ltd. With the given details, it is absolutely clear and beyond any doubt that the goods were supplied by the appellant’s Odhav unit to the concerned project for which the certificate was issued. Therefore, the condition of the notification is clearly fulfilled and the address of the Superintendent/ Assistant Commissioner/Deputy Commissioner given in the certificate was inadvertently mentioned. Only on that basis, the fact that the Certificate was indeed issued in favour of the Appellant’s Odhav unit for supply of goods by the Odhav unit to the Project Waa Solar India Pvt Ltd I not in dispute.
Therefore, merely for the small error in the certificate, the benefit of Notification No 15/210-CE cannot be denied. Therefore, the impugned order is not sustainable - appeal allowed.
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