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Central Excise - Case Laws
Showing 421 to 440 of 1430 Records
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2023 (9) TMI 1574
Partial rejection of rebate claims of the petitioners under Rule 18 of the Central Excise Rules, 2002 - availing of two exemption notifications for domestic and export clearance simultaneously - Section 142 of the CGST Act, 2017 - denial of claim of rebate on the ground that the payment of duty was at the will of the assessee as per the beneficial Notification for export of the goods - HELD THAT:- The export rebate is permissible as the petitioner has paid duty at the time of export, as final products manufactured by the petitioner were exempted from payment of duty by Notification No.29/2004- CE as amended by Notification No.58/2008-CE. However, the petitioner availed the benefit of concessional rate of duty under the Notification No.59/2008-CE, which exempted the goods manufactured by the petitioner at a concessional rate of duty and thereafter, the claim of rebate was made.
This Court, considering such issue, in the case of Arvind Limited [2014 (5) TMI 171 - GUJARAT HIGH COURT], has held that 'Admittedly, when the petitioner was given exemption from payment of whole of the duty and the petitioner if had paid duty at the time of exporting the goods, there is no reason why it should be denied the rebate claimed which otherwise the petitioner is found entitled to.'
The Hon’ble Supreme Court has affirmed the above judgement of this Court, by dismissing the Special Leave to Petition filed by the Union of India reported in [2017 (352) ELT A21 (SC) (2016 (3) TMI 1267 - SC ORDER)], wherein it is held that the benefit of export rebate could not be denied to the exporter who paid duty on the exported product despite same being fully exempted under Notification No.29/2004 as amended by Notification No.59/2008- CE.
The Hon’ble Apex Court, in the case of H.C.L. Limited vs. Collector of Customs, New Delhi [2001 (3) TMI 971 - SC ORDER], has held that as per the order of the Hon’ble Apex Court in Collector of Central Excise, Baroda vs. Indian Petro Chemicals [1996 (12) TMI 66 - SC ORDER], there are two exemption notifications that cover the goods in question and the assessee was entitled to the benefit of that exemption notification which gives him greater relief, regardless of the fact that notification is general in its terms and the other notification is more specific to the goods.
The impugned orders set aside by further directing the respondents to grant the petitioners the rebate, as claimed, after calculating interest, as may be applicable in accordance with law, within a period of 12 weeks from the date of receipt of the copy of this order - petition allowed.
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2023 (9) TMI 1554
Demand of differential Central Excise duty with interest and penalties - intermixing of SKO with MS/HSD during movement of these petroleum products though pipeline - quantification of duty of intermixed part of SKO and MS/HSD - demand solely based on CBEC Circular No. 636/27/2002-CX dated 22.04.2002 - it was held by CESTAT that 'The differential duty demand raised on interface quantity of SKO is clearly not sustainable' - HELD THAT:- There are no reason to interfere with these appeals - The appeals are accordingly dismissed.
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2023 (9) TMI 1552
Dismissal of appeal for non-payment of pre-deposit - HELD THAT:- Though at the time of passing the said order by the Commissioner (Appeals) the amended provision of Section 35 F was not in force. However, in the matters coming before the Tribunal related to pre-deposit after the amendment of Section 35 F, this Tribunal taking a lenient view allowing the admission of the appeal on pre-deposit of 10% as prescribed under amended Section 35 F. Therefore, since the appellant have already deposited 10% of the duty amount, the same is sufficient to hear the appeal on merit.
The impugned order is set aside. Appeal is allowed by way of remand to the Commissioner (Appeals) for passing a fresh order on merit.
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2023 (9) TMI 1488
Maintainability of appeal - non-fulfilment of mandatory compliance of Section 35F CEA - HELD THAT:- Admittedly, the said amount of duty stands paid to the extent @ Rs. 750 PMT. Apparently and admittedly the said amount is more than the amount of 7.5% of the amount as is required for pre-deposit in terms of Section 35F of the Central Excise Act.
As apparent from verification report, it has been verified by the department itself that the burden of said amount of duty has been borne by the appellant itself. Irrespective of the issue about the liability towards the impugned amount of duty, whether it was of the buyer of molasses i.e. the appellant or it was of the khandsari unit i.e. the manufacturer of molasses, the fact remains is that the requisite amount stands already deposited with the department. The amount of duty which stands already paid has been held to be as good as the amount of pre-deposit.
There are no reason to differ from the findings that appellant cannot denied of being heard on merits in any appeal where more than 7.5% of the amount required for pre-deposit has already been recovered by the department though not from the appellant, but from its khandsari unit. Resultantly, it is held that since the amount of pre-deposit stands already paid, there is no such defect.
Registry is, therefore, directed to register the appeal and to list the same in due course.
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2023 (9) TMI 1403
CENVAT Credit - input service distribution - assessee availed cenvat credit of service tax paid on invoices issued by ABMCPL - It was observed that ABMCPL was merely distributing credit despite not being an input service distributor and hence cenvat credit is not available to the assessee since it was a violation of provisions of Rule 2 (l),Rule 7 and Rule 9 of the Cenvat Credit Rules, 2004.
HELD THAT:- It is found that the assessee’s own case for the earlier period, this issue came up before this Tribunal in M/S. HINDALCO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II [2023 (6) TMI 457 - CESTAT KOLKATA] and this Tribunal has observed the services rendered by the ABMCPL is rightly classifiable under the category of ‘Business Support Service’ and ABMCPL has rightly paid Service Tax under the said category. The service tax paid by ABMCPL has been rightly distributed to their group companies, including Appellant.”
As the issue has already been decided in favour of the assessee, therefore, the service rendered by ABMCPL is rightly classifiable under the category of BSS and ABMCPL has rightly paid the service tax under the said category and the service tax paid by ABMCPL has rightly been distributed to their group companies including the assessee - the assessee is entitled to take the cenvat credit on the services distributed by ABMCPL.
The appeals filed by the assessee are allowed and the appeal filed by the Revenue is dismissed.
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2023 (9) TMI 1373
Method of Valuation - Related party transaction - Sale to inter-connected undertakings for the period prior to 01.03.2013 - applicability of rule 11 of the Valuation Rules read with rule 4 and rule 2 (b) - case of the Revenue is that the duty should have been paid on the price at which the appellant had sold the goods to independent buyers in the greatest aggregate quantity.
HELD THAT:- In the impugned order, and the OIO the value was determined as per Rule 11 read with Rule 4. We find that Rule 11 can be applied only when the situation is not covered by any of the previous valuation rules. It is undisputed that the appellant and JSPL and JPL are related persons. Therefore, it must be examined if they can be covered by Rule 10 (a) or Rule 10(b) - If the appellant and JSPL an JPL were related persons only because they were interconnected undertakings and they were not also related in any of the other three ways [clauses (i) (ii) or (iv) of clause (b) of sub-section (iii) of Section 4] or the appellant and JSPL or JPL are the holding or subsidiary companies of each other, then valuation should be done as if they are not related persons.
In this case, there is no allegation or evidence that JSPL and JPL are connected to the appellant in any of the other three ways. There is no allegation that the appellant is either the holding or the subsidiary company of either JSPL or JPL. The only allegation is that they are associated companies and hence they are interconnected undertakings. It has also been alleged that JPL is the subsidiary of the JSPL, i.e., one of the buyers is the subsidiary of another buyer. Therefore, this case falls squarely under section 10 (a) of the Valuation Rules and duty was required to be paid as if the appellant and JSPL and JPL were not related persons, i.e., on the transaction value.
The demand of duty under Rule 11 of Valuation Rules cannot, therefore, be sustained and needs to be set aside - impugned order set aside - appeal allowed.
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2023 (9) TMI 1372
Clandestine Removal - Applicability of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - failure to file declaration under rule 6 of Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - suppression of installed machinery - scope for any mitigating circumstances to be considered for levy under any other provision of law or to be left out of assessment or not - presumption of having commenced production on the appointed date - Recovery alongwith interest and penalties - HELD THAT:- The claim of the appellant that licence for manufacture of ‘gutkha’ had not been obtained appears to have been overlooked even though it should have been possible to have this aspect verified. Sadly, that did not happen. It was improper on the part of the adjudicating authority to assume to the contrary and to presume that either the administration of the state government was lax or that the appellant had operated outside the law with not a whiff of illegal activity coming to the public eye. No inquiry was taken up to ascertain destination of ‘impugned product’, if any, had been manufactured from deployment of machine intended for manufacture of licenced product.
There is no evidence of clandestine production. There is no evidence to suggest that appellant had used available machines to manufacture ‘gutkha’ during the disputed period. The impugned order is silent about the state of affairs that prevailed prior to the Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 coming to force or any valid reason to suspect that appellant was manufacturing the product. The presumption owing to which the Rules were said to be applicable is not acceptable and the collection of tax on such assumptions is unthinkable.
The appeal is allowed.
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2023 (9) TMI 1371
Recovery of excess refund sanctioned to the assessee in the initial month where the Cenvat credit was not fully utilized - HELD THAT:- The similar issue has been dealt with by this Tribunal in the case of M/s Singla Cables [2015 (2) TMI 381 - CESTAT NEW DELHI], wherein this Tribunal has recorded overall there was no excess availment of exemption under Notification No. 56/2002-CE, as the excess quantum of refund under Notification No. 56/2002-CE during February 2006 to April 2006, was neutralized by lesser quantum of refund under this notification during December 2006.
The refund claim of the appellants for the subsequent period, could not be rejected on the ground that the appellant has taken excess refund for the period prior to 22.12.2002, therefore, no demand is sustainable against the appellant as demanded in view of the letter dated 03.06.2003 by the Deputy Commissioner and the refund for the period August, 2006 to October, 2006 were not required to be appropriated.
Appeal allowed.
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2023 (9) TMI 1370
Compounded Levy Scheme - Abatement of duty - appellant availed abatement of duty for the days the machine was sealed and not in operation - HELD THAT:- The appellant have followed the procedure for taking abatement of duty provided under Rule 10 of “Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008”.
From the plain reading of the Rule 10 it is clear that the abatement is available to the appellant on following the condition laid therein. As per the condition the appellant has to intimate the jurisdictional officer in advance regarding sealing and de-sealing of the machines. In the present case there is no dispute that the intimation was given well in advance and the Jurisdictional Range Superintendent has de-sealed and re-sealed the machine and the machine was operated only during that period - In the present case, the appellant is eligible for abatement in principle and under no circumstances the full duty can be demanded for the period of abatement when the machine was not in operation. This issue has been considered in various judgments.
In the case of THE COMMISSIONER VERSUS M/S THAKKAR TOBACCO PRODUCTS P. LTD. [2015 (11) TMI 319 - GUJARAT HIGH COURT] the Hon’ble Gujarat High Court considered the same issue, where it was held that When the rules do not provide for the manner in which duty is required to be abated, nor do they provide that abatement shall be by an order of the Commissioner or any authority, but nonetheless provide for abatement of duty and the extent of entitlement to such abatement, no fault can be found in the approach of the assessee in suo motu taking the benefit of such abatement.
In the case of COMMISSIONER OF CENTRAL EXCISE, DELHI-I VERSUS SHAKTI FRAGRANCES PVT. LTD. UNIT-II [2015 (10) TMI 1040 - DELHI HIGH COURT], the Hon’ble Delhi high Court also considered the similar issue where it was held that On a collective reading of Rules 9 and 10 of the PMPM Rules, the Court is of the view that the failure to make the payment of duty on fifth day of every month cannot result in depriving the assessee of the pro rata abatement of duty which he is in any way entitled to since admittedly in the present case there has been a closure of the factory from 14th to 31st August, 2012 and an abatement order has also been passed on 28th August, 2012. However, the assessee would be liable to pay the interest for the period of late deposit of duty.
The demand is not sustainable. Accordingly, the impugned order is set aside. Appeal is allowed.
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2023 (9) TMI 1280
Adjudication of SCN - HELD THAT:- The SLP disposed holding that Considering the fact that both the show cause notices - one dated 1-3-2016 issue by the Directorate General of Central Excise Intelligence, Delhi Zonal Unit and the subsequent show cause notice dated 23-10-2017 issued by the Commissioner, Central Goods and Services Tax Commissionerate, Alwar were on the same subject-matter, the High Court is justified in passing the impugned judgment and order and directing that both the notices to be adjudicated and heard together by one authority.
The present special leave petition is disposed of.
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2023 (9) TMI 1279
Levy of Excise Duty - Process amounting to manufacture or not - addition or blending of Multi-Functional Additives with Motor Spirit (MS) and duty paid High Speed Diesel (HSD) - HELD THAT:- The Tribunal had followed its previous rulings as well as this Court’s judgments on such issue, which had broadly held that unless the essential characteristic of the article of emerging product changed, the mere blending or addition of something in such articles leading to negligible or inconsequential changes, would not result in manufacture of or the emergence of a new product, as long as its usage remains the same. It is also a matter of record that the product emerging after blending confirms to the same specifications as in the case of old one. It is also pointed out that this issue has been decided against the revenue recently in Commissioner of Trade Tax v. M/s. Kumar Paints and Mill Stores Through its Proprietor [2023 (3) TMI 943 - SUPREME COURT].
This Court is of the opinion that the appeals have to fail - Appeal dismissed.
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2023 (9) TMI 1278
Valuation of physician samples - replica of dutiable goods are removed from factory for free distribution to medical practitioners with the cost thereof implicitly included in the valuation of the goods or not - HELD THAT:- The findings are not tenable for its lack of clarity on the transactions that were sought to be brought within the tax net. It also cannot be seen how goods cleared to principal manufacturer from raw materials supplied by them can take recourse to rule 4 of Central Excise (Determination of Price of Excisable Goods) Rules, 2000, as held by the first appellate authority, when rule 8 is specific to such a situation. It would also appear to us that rule 4 of Central Excise (Determination of Price of Excisable Goods) Rules, 2000 is applicable when, as held in CADILA PHARMACEUTICALS LTD. VERSUS COMMR. OF C. EX., AHMEDABAD-II [2008 (9) TMI 98 - CESTAT AHEMDABAD], no sale occurs at the time of removal warranting recourse to price at which goods are sold at the nearest time of removal.
The facts and circumstances of each removal and the nature of the transaction with the recipient of such clearances will determine the specific provision in Central Excise (Determination of Price of Excisable Goods) Rules, 2000 that must be applied. It would be in the fitness of things for such detailed scrutiny to be undertaken by the original authority.
The impugned order is modified and the terms of remand to the original authority altered accordingly.
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2023 (9) TMI 1277
CENVAT Credit - iron ore pellets purchased by the appellant - availment of cenvat credit on the iron ore pellets and utilization of such credit for payment of duty on its final product - HELD THAT:- Although the appellant has taken cenvat credit on iron ore pellets, it has been held that the product of iron ore pellets is exempted from payment of duty and the said goods were used by the appellant for manufacturing process and the manufactured goods have been sold on payment of duty . Therefore, the demand of duty on such iron ore pellets shall be demanded reversal of cenvat credit as held by this Tribunal in the case of AJINKYA ENTERPRISES VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-III [2013 (6) TMI 610 - CESTAT MUMBAI], which has been affirmed by the Hon’ble Bombay High Court in THE COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS AJINKYA ENTERPRISES [2012 (7) TMI 141 - BOMBAY HIGH COURT], wherein the Hon’ble High Court of Bombay has held 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.
Further, the supplier of the goods has paid the duty on iron ore pellets and the same has been accepted by the respondent, therefore, being a manufacturer of excisable goods, the appellant is entitled to cenvat credit of duty paid by the appellant and it has not been questioned to the supplier of the goods that the product is exempted from payment of duty and the Revenue has accepted the duty payment. In that circumstances, the appellant is entitled to take cenvat credit as held by the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE & CUSTOMS VERSUS MDS SWITCHGEAR LTD. [2008 (8) TMI 37 - SUPREME COURT].
The appellant has correctly taken the cenvat credit - the impugned order is not sustainable on the eyes of law and the same is set aside - Appeal allowed.
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2023 (9) TMI 1252
Refund of Service Tax - refund claim was filed beyond the time limit prescribed under Section 11B of the Central Excise Act, 1944 - HELD THAT:- Similar is the view which has been taken by the Bombay High Court in Parijat Construction vs. Commissioner of Central Excise, Nashik [2017 (10) TMI 659 - BOMBAY HIGH COURT]. It would thus appear that High Courts across the board have taken a consistent view that where once it is found that the assessee was not liable to be subjected to a service tax, it would not be bound by the limitation as prescribed under Section 11B of the Act.
This would also appear to appeal to reason since undisputedly and in terms of Article 265 of the Constitution, the Union can only levy a tax which is authorized by law. Since it is conceded before us that the respondent was not liable to pay any service tax, it would be wholly unjust to permit the Union to retain monies which were not liable to be collected or were authorized by law.
This only leaves to deal with the issue of unjust enrichment. It is noted that the Order-in-Original dated 24 July 2020 while dealing with the aforesaid aspect has held in favour of the assessee solely on the ground that since service tax was not liable to be deposited, the question of unjust enrichment would not be applicable. As noted, the Appellate Authority in appeal against this order did not deal with the issue of unjust enrichment in its order dated 26 March 2021. However, prior to the passing of the CESTAT’s impugned order dated 09 January 2020, when the matter reached the desk of the Appellate Authority against the Adjudicating Authority’s order dated 17 October 2014, it was noted that the assessee had not submitted any documentary evidence to establish that the incidence of tax had not been passed on.
CESTAT, however, has completely failed to allude to this aspect of the matter. In view of the above, while its decision is liable to be upheld, the assessee would be obliged to place adequate material before the concerned Assessing Authority, establishing that the incidence of service tax was not passed on. This since the issue of unjust enrichment and the burden so placed on the assessee is found in the principal provision of Section 11B of the Act itself.
It was informed at the conclusion of the hearing that the refund has already been granted along with interest. In that view of the matter, let appropriate material be placed for the consideration and satisfaction of the competent Assessing Authority by the respondent.
Appeal of Revenue dismissed.
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2023 (9) TMI 1251
Maintainability of appeal - non prosecution in terms of Rule 20 of CESTAT Procedure Rules, 1982 - adjourning the matter beyond three times - HELD THAT:- Today the judiciary and the justice delivery system is facing acute problem of delay which ultimately affects the right of the litigant to access to justice and the speedy trial. Arrears are mounting because of such delay and dilatory tactics and asking repeated adjournments by the advocates and mechanically and in routine manner granted by the courts. It cannot be disputed that due to delay in access to justice and not getting the timely justice it may shaken the trust and confidence of the litigants in the justice delivery system. Many a times, the task of adjournments is used to kill Justice. Repeated adjournments break the back of the litigants.
Any effort which weakens the system and shake the faith of the common man in the justice dispensation has to be discouraged. Therefore the courts shall not grant the adjournments in routine manner and mechanically and shall not be a party to cause for delay in dispensing the justice. The courts have to be diligence and take timely action in order to usher in efficient justice dispensation system and maintain faith in rule of law - also whenever the trial courts refused to grant unnecessary adjournments many a times they are accused of being strict and they may face displeasure of the Bar.
In the present case ten times adjournments were given between 2015 to 2019 and twice the orders were passed granting time for cross examination as a last chance and that too at one point of time even a cost was also imposed and even thereafter also when lastly the High Court passed an order with extending the time it was specifically mentioned that no further time shall be extended and/or granted still the petitioner – defendant never availed of the liberty and the grace shown. In fact it can be said that the petitioner – defendant misused the liberty and the grace shown by the court. It is reported that as such now even the main suit has been disposed of.
There are no justification for adjourning the matter beyond three times which is the maximum number statutorily provided - Appeals are dismissed for non prosecution in terms of Rule 20 of CESTAT Procedure Rules, 1982.
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2023 (9) TMI 1190
Condonation of delay in filing revision application - Exclusion time spend for pursuing the appeal before CESTAT (wrong forum) - Time limitation - time barred order as filed beyond period prescribed under the statute - convincing reason or not - HELD THAT:- Undisputedly, a revision application against an order passed under the provisions of the Act, 1944, by the appellate authority can be filed within 3 months from the date of communication of the order to the applicant and as per proviso to Section 35EE (2), if the Central Government is satisfied that the applicant was prevented by any sufficient cause for presenting the revision application within the period of 3 months, it may allow the same to be presented within a further period of 3 months. Meaning thereby that as per provision of Section 35EE, a revision application could not be entertained beyond the maximum period of 6 months from the date of communication to the applicant of the order challenged. However, it may be mentioned that the well settled proposition of law that even if a statute imposes embargo upon power of an authority to condone the delay by providing a specific period up to which such delay can be condoned, nonetheless, the time spent by the applicant in prosecuting wrong proceedings which are bonafide with due diligence can be excluded while computing the period of limitation, cannot be ignored.
The High Court of Bombay while discussing MP. STEEL CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE [2015 (4) TMI 849 - SUPREME COURT] had observed that the principles of Section 14 of the Limitation Act, which were based on advancing the cause of justice would apply to exclude time taken in prosecuting proceedings which were bonafide and with due diligence pursued, which ultimately ended without a decision on the merits of the case.
It is not in dispute that against the order dated 14.02.2003, the petitioner had filed appeal before the Tribunal within time. This appeal remained pending till 08.03.2004 and it was only then on that day that it was held to be not maintainable. No decision had been taken on merits by the Tribunal. The Tribunal had specifically observed that the period which was spent by the petitioner in pursuing the appeal may not be counted for the purpose of delay in filing the revision petition. Along with the revision application, the petitioner had filed an application for condoning the delay in filing the said application before respondent No. 1. The respondent No. 1 however, dismissed the revision application without passing any order on application for condonation of delay and by holding that the revision was time barred and that no convincing reason had been given by the petitioner for pursuing the matter before the Tribunal. The respondent No. 1 revisional authority completely ignored the time spent by the petitioner before the Tribunal.
The entire issue from the angle that the petitioner had not only bonafidely file its appeal before the forum which lacked jurisdiction but pursued the same under a bonafide belief, the order dated 23.09.2004 as passed by respondent No. 1 is quashed being not sustainable and the file of the revision application restored to respondent No. 1-Joint Secretary (Revision) Government of India, (revisional authority), New Delhi for deciding the application for condonation of delay as well as the revision in accordance with law.
Petition allowed.
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2023 (9) TMI 1189
CENVAT Credit - imported scrap - denial of inputs on the ground that the destination mentioned in the DLRs was Bhiwandi, the said imported inputs were diverted to local markets and sold in cash and that the imported inputs so diverted were substituted with bazaar (local) non-duty paid scrap - penalty - HELD THAT:- This Tribunal in various cases has held that since there is not even an iota of evidence of disposal of the goods at Bhiwandi/ Navi Mumbai, there being not even a single buyer of the goods who is identified and there being no evidence of receipt of any cash against such alleged disposal, the Cenvat Credit cannot be denied merely on the ground that the destination mentioned in the DLRs/ MLRs of the transporter, Pankaj Shipping and Transport Co was Bhiwandi/ Navi Mumbai.
This Tribunal has further held that in the absence of any evidence of procurement of the scrap from alternate source/ bazaar scrap, it cannot be assumed that the imported duty paid scrap was substituted with local non-duty paid bazaar Scrap and the Cenvat Credit of the duty paid on the imported scrap cannot be denied.
Reliance can be placed in M/S SUNLAND ALLOYS, PRAVIN KUMAR A RANKA, SHIVRAJ SINGHAL VERSUS C.C.E. & S.T. -VAPI [2015 (10) TMI 1104 - CESTAT AHMEDABAD] and M/S SUNLAND METAL RECYCLING INDUSTRIES, SHRI SURENDRA P. KACHHARA VERSUS COMMISSIONERS OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX-VAPI [2016 (2) TMI 534 - CESTAT AHMEDABAD].
In the instant case, it can be observed that at the time of search of the factory on 1-12-2006 no bazaar scrap was found in the factory, there is absolutely no evidence of procurement of local non-duty paid bazaar scrap for substitution of the imported duty paid scrap. In fact, Rajeshwar R. Dubey has in his Statement dated 29-11-2007 stated that the Appellants were not purchasing any Scrap from the local market. There is not a single buyer identified to whom the imported duty paid scrap was allegedly sold and there is no evidence whatever of any cash received by the Appellant for such alleged sale. In that view, it is impossible to hold that there is diversion of 842 M.Tons worth Rs. 5 crores without even a single buyer being identified and without any evidence of receipt of cash payment by the Appellant of such a large amount; all the imported duty paid inputs have been duly accounted for in RG 23 A Register and the final products have been manufactured and cleared on payment of duty.
Since, the DRI has withdrawn all the records, the Appellants cannot be expected to produce documents showing transport of the imported scrap to the Appellants’ factory - On identical facts in the case of Sunland Metal Recycling Industries and Ors v CCE, Vapi, this Tribunal has held that where DRI had just prior to investigations by DGCEI taken away all records pertaining to the import of scrap, the manufacturer cannot be expected to produce documents showing transport and receipt of the goods in the factory. Further, since none of the deponents of the Statements recorded by DGCEI have been examined in the adjudication proceedings, as required by Section 9D of the Central Excise Act 1944, the same cannot be considered as evidence.
Thus, the revenue could not establish that the appellant have not received the input in their factory, hence the demand of Cenvat credit in the present case is not sustainable. Consequently the penalties are also not sustainable.
Appeal allowed.
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2023 (9) TMI 1188
Reversal of proportionate Cenvat credit - inputs used and attributed to Sulphuric Acid cleared under exemption Notification No. 4/2006-CE dated 01.03.2006 (Sr. No. 32) on nil rate of duty - HELD THAT:- As per the definition of exempted goods in Rule 2(D)(d)of Cenvat Credit Rules, 2004, the exempted goods is not only the exempted by notification but also the goods bear a ‘nil’ rate of duty also. Therefore, in our prima facie view the Rule 6(3) is applicable, even in a case of kind of this case. However, in one of the judgments in the case of DHARAMSI MORARJI CHEMICAL CO. LTD. VERSUS COMMR. OF C. EX., RAIGAD [2010 (3) TMI 561 - CESTAT MUMBAI] the revenue’s appeal is pending before the Hon’ble Supreme Court. Therefore, it will be in the interest of justice that this matter maybe finally decided only after the Hon’ble Apex Court delivers its judgment in Dharamsi Morarji chemical Co. Ltd. Accordingly, the impugned order set aside and the matter remanded to the Adjudicating Authority for passing a fresh order after the decision of the Hon’ble Supreme Court in the case Dharamsi Morarji chemical Co. Ltd.
Appeal is disposed of by way of remand to the Adjudicating Authority.
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2023 (9) TMI 1137
Seeking permission for withdrawal of SLP - HELD THAT:- The special leave petitions are dismissed as withdrawn, with liberty to file a review before the High Court. Liberty is also granted to the petitioner(s) to challenge the impugned order, in case the decision in the review petition is adverse to the petitioner(s).
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2023 (9) TMI 1136
Reversal of CENVAT Credit - formula applied by the appellant for reversing the proportionate credit availed on common input services used in production of the exempted product (electricity) is correct or not - Department is of the view that the amount to be reversed has to be calculated by taking the entire credit (total credit) availed by the appellant - HELD THAT:- The very same issue was analysed by the Tribunal in the case of M/S. TOSHIBA JSW POWER SYSTEMS PRIVATE LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2023 (6) TMI 543 - CESTAT CHENNAI] where it was held that “Total Cenvat Credit” for the purpose of formula under Rule 6(3A) is only total Cenvat credit of common input service and will not include the Cenvat credit on input/input service exclusively used for the manufacture of dutiable goods. If the interpretation of the Revenue is accepted, then the Cenvat credit of part of input service even though used in the manufacture of dutiable goods, shall stand disallowed, which is not provided under any of the Rule of Cenvat Credit Rules, 2004.
Similar view was taken by the Tribunal in the case of AAVANTIKA GAS LTD VERSUS COMMISSIONER, CGST- INDORE [2023 (1) TMI 505 - CESTAT NEW DELHI]. After appreciating the facts and following the decisions as above, we are of the considered view that the proportionate credit reversed by the appellant originally is correct and therefore the amount reversed as per direction of the audit team on 20.7.2013 is excess reversal made by the appellant. The appellant is therefore eligible for recredit of the amount of Rs.65,24, 669/-.
There is no request to pay interest from the date of reversal in the reply to Show Cause Notice. The adjudication has also considered the issue of reversal of credit as per direction of audit team - it is not necessary to consider the eligibility of interest in this appeal.
The appellant is eligible to avail re-credit / refund. The impugned order is set aside - appeal allowed.
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9911796707
