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Central Excise - High Court - Case Laws
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- 2019 (11) TMI 672
Levy of penalty - Whether learned Commissioner, in the facts and circumstances of the case, was right in exercising his discretion, which otherwise is not contemplated, for not imposing penalty as stipulated under section 11AC of the Central Excise Act despite he has held liability under section 11A of the Act? - reasons for upholding the order of the learned Commissioner not assigned - Principles of natural justice. HELD THAT:- On a plain reading of the provisions of section 11AC of the Act, it is evident that the condition precedent for invoking the said provision is that there should be fraud, collusion or any mis-statement or suppression of facts or contravention of any of the provisions of the Act or the rules made thereunder with intent to evade payment of duty - In the facts of the present case, in the light of the concurrent findi....... + More
- 2019 (11) TMI 658
Rejection of part refund claim - refund claim in respect of two different periods - While in one case, the second respondent has chosen to partly accept and partly reject the claim, in the other case, he totally rejected the claim - opportunity of personal hearing - principles of Natural Justice - HELD THAT:- It is an admitted fact that in both the cases, the second respondent, before passing the impugned orders, not heard the petitioner. As rightly pointed out by the learned counsel for the petitioner, if the authority chooses to reject the refund claim either in part or whole, he should put the petitioner on notice and seek for explanation and decide the matter thereafter on providing an opportunity of personal hearing as well. The scope of affording an opportunity of personal hearing was considered in similar refund claim matter in the....... + More
- 2019 (11) TMI 612
Time Limitation - It is the specific case of the appellant/assessee that the entire demand is barred by limitation and therefore, the demand is not sustainable in law - Whether in the facts and circumstances of the case, the Tribunal is right in confirming the demand when the demand itself is barred by limitation? - HELD THAT:- The Tribunal did not make any such observation with regard to the limitation point while confirming the order passed by the Commissioner (Appeals). In fact, the assessee is to be partially blamed because, none appeared for the assessee before the Tribunal, when the case was heard - the point relating to limitation being a mixed question of law and fact, should also to be allowed to be agitated by the assessee before the original authority. Whether the Tribunal is right in holding that there was no such submission p....... + More
- 2019 (11) TMI 611
Reliability of statements - it was contended that the reliance placed upon Production Manager’s statement was unwarranted because firstly, the statement was a subject matter of a previous SCN which had not culminated in final adjudication as such and secondly, the statement was subsequently retracted and lastly, the latter statement was in fact relied upon in the SCN which resulted in an adjudication - HELD THAT:- The statement made by Sh. Shivji Gupta, this Court is of the opinion that the CESTAT’s appreciation of facts on this score are sound and do not call for interference. What is most important and was correctly noticed by the CESTAT is that the statement of 2008 has not resulted in any adverse order on the SCN which culminated immediately thereafter. The present adjudication proceeding is the result of a subsequent SCN ....... + More
- 2019 (11) TMI 560
Principles of Natural Justice - cross-objection was rejected - reversal of CENVAT credit - electricity weld out to sister concern and also excess power generated and made over to the AVVNL - HELD THAT:- This Court is of the opinion that CESTAT correctly noticed the appellant’s grievance that it was sought to be penalized in respect of an assumed wrong doing even though according to it the credit had been reversed at the appropriate stage, in respect of an electricity weld out to AVVNL. The Court is of the opinion that the assessee’s cross-objections have to be heard afresh and decided on its merits. The impugned order is therefore set aside to that extent and the matter is remitted to the CESTAT which shall issue fresh notice and hear the parties - appeal allwoed by way of remand.
- 2019 (11) TMI 559
CENVAT Credit - input - cement used as an input to stabilize hazardous waste generated in the manufacture of its final products zinc and lead - period of April 2013 to September 2013 - HELD THAT:- The interpretation of the CESTAT of the expression “input” as covering all goods used in a factory by a manufacturer of any final product - as evident from the words “final product”, re-enforces the intention of rule making authority to expand the definition and provide the benefit of input credit even to the processes which are not intrinsically covered or do not have a direct link with the manufacture of the final product. This aspect assumes significance in the present case since the input is used to stabilize a by-product, a hazardous waste, which is not permitted to be handled and transported without stabilizing, und....... + More
- 2019 (11) TMI 558
Captive Consumption - manufacture of non-excisable goods - Exemption under N/N. 67/95-C.E., dated 16-3-1995 - by-product - carbon dioxide generated as a by-product in the manufacture of alcoholic liquor - petitioner uses the said carbon dioxide in the further manufacturing process to produce alcoholic liquor for human consumption (beer) - it is also alleged that SCN issued without jurisdiction - HELD THAT:- While it is trite that this Court would not normally entertain a Writ Petition impugning a show cause notice issued under a taxing statute, the exceptional cases in which this Court would interfere would include instances where the statutory authority is seen transgressing the limits of its jurisdiction while issuing a show cause notice. The contention of the Learned Senior Counsel for the petitioner being that the show cause notice is....... + More
- 2019 (11) TMI 557
International Competitive Bidding - benefit of deemed exports under Notification No. 1(FT)/DEA/2010 dated 5th May, 2010 - only ground raised for rejecting the claim for exemption from terminal excise duty is that the petitioner did not comply with the conditions of the Customs Notification. HELD THAT:- Once the petitioner complies with the requirements of the Notification issued in terms of Rule 19 of the Central Excise Rules, 2002, then his entitlement for the benefit of exemption from terminal excise duty has to be recognized in accordance with the provisions of Chapter 8 of the Foreign Trade Policy read with the Central Excise Rules - Ext.P8 communication, to the extent it denies the benefit of exemption from terminal excise duty to the petitioner, for removal of the two transformers, cannot be legally sustained. The petitioner is entitled for exemption from terminal excise duty in respect of the supplies of the two transformers - Petition allowed.
- 2019 (11) TMI 415
Provisional assessment of clearances made - Circular No.26/89 dated 24.04.1989 and Circular No.13/90-CX-6 dated 25.05.1990 issued by CBEC - time limitation - HELD THAT:- The appeal is admitted on substantial questions of law. List this appeal for hearing on 11th December, 2019.
- 2019 (11) TMI 414
Permission for withdrawal of appeal - monetary limits - SSI exemption - dummy firm - cross-examination of persons - no documentary evidence of purchase from a legitimate source - non-examination of statement of a person, Late Sh.Ashok Kumar, Assistant Manager of Truck Union of Samana, who is dead - seizure of excess stock - HELD THAT:- It is averred in the application that Central Board of Indirect Taxes and Customs has issued instruction dated 22.8.2019 and revised the monetary limits for filing appeal before this Court to ₹ 1.00 Crore and the said instructions are applicable to pending appeal. It is further averred that office of Commissioner of Central Goods and Service Tax, Mohali has sent instruction to the effect that personal penalty involved in the appeal being ₹ 80, 23, 000/- is below prescribed threshold limit and as such prayer for withdrawal of the appeal. Appeal dismissed as withdrawn.
- 2019 (11) TMI 308
Discard of documents relied upon by the Enforcement Authorities - Clandestine removal - Gutkha - no material evidence found in support of allegation - Whether CESTAT had committed an error in discarding the documents relied upon by the Enforcement Authorities and in that regard whether such decision is contrary to the provisions as contained in Section 36(B) of the Act? HELD THAT:- It is evident that the Tribunal has found that the Commissioner has found clandestine clearance of gutkha by the assessee involving duty of 4.60 crores on the basis of copies of railway receipts as well as the material retrieved from the computer seized from the premises of M/s. Dwaraka Mai Associates viz., the dealer of the assessee - From perusal of the record maintained by the dealer of the assessee, the Commissioner has held that the daily sales of Hira bra....... + More
- 2019 (11) TMI 244
Interest on Refund - Section 11BB of the Central Excise Act, 1944 - time limitation - respondent contended that interest was paid within three (03) months from the date of order passed by the Tribunal, thus department is not liable to pay interest - HELD THAT:- As per Section 11BB of the Central Excise Act, 1944, if duty is not refunded within three (03) months from the date of application, applicant is entitled to interest. In the present matter, refund application was filed on 03.09.2009 which was rejected and the petitioner unsuccessfully assailed said order before Commissioner (A). The petitioner filed further appeal before the Tribunal which vide order dated 21.02.2018 (Annexure P-3) allowed appeal of the petitioner and accordingly, the respondent sanctioned refund on 27.09.2018. Hon'ble Supreme Court in the case Ranbaxy Laborato....... + More
- 2019 (11) TMI 123
CENVAT Credit - common input, input services used in dutiable goods (sugar and molasses) as well as exempted goods (bagasse and electricity) - Rule 6 (3A) of the Cenvat Credit Rules - N/N. 23/2004-CE (NT), dated 10th September, 2004. Is the CESTAT correct in holding that as electricity is not excisable, Rules 6(2) & (3) of the CENVAT Credit Rules, 2004 are not applicable and consequently input credit is admissible in the facts and circumstances of the case? HELD THAT:- The point on which the learned Tribunal has decided the appeal is a point of law, i.e., the excisability, or otherwise, of electricity. It is required to be decided on the basis of the prevalent statutory position, as reflected in the Act, read with the Tariff and the law laid down on the point, and is not dependent on adjudication of any disputed question of fact. Stat....... + More
- 2019 (11) TMI 122
Clandestine removal - SS Ingots - cross examination of the witnesses - production capacity of respondents - matching of actual production with electricity consumption and fuel consumption - Section 35H of the Central Excise Act, 1944 - HELD THAT:- It appears that there are allegations about production capacity of the respondent. As per Department - appellant, production capacity of the respondent of SS Ingots is 13,580 MT per annum whereas as per respondent and the evidences led by the respondent with the help of Engineer Certificate dated 1st July, 2008 the production capacity of the respondent of SS Ingots is 1963 MT per annum. There are allegations and counter allegations about the DG Set transformers and the crucible furnaces. Be that as it may, the fact remains that the order passed by the CESTAT is on appreciation of the evidences o....... + More
- 2019 (11) TMI 16
Benefit of abatement for non-production - whether the assessee could on their own calculate excise duty and set off the same against the duty payable in the next month? - HELD THAT:- The statue, that is proviso to Sub-section (2) of Section 3A itself provides for abatement where a factory producing notified goods did not produce the same during any continuous period of 15 days or more, the duty calculated on the proportionate basis shall be abated in respect of such period, if the manufacturer of such goods fulfills such condition as may be prescribed. In the present case as the assessee having complied the statutory requirement, is entitled to the benefit claimed by him. Once the Department has issued circular holding that assessee is entitled to abatement of duty, in the event of closure of factory for continuous period of 15 days or mo....... + More
- 2019 (11) TMI 15
Permission for withdrawal of application - monetary amount involved in the appeal - denial of CENVAT credit - HELD THAT:- It is averred in the application that Central Board of Indirect Taxes and Customs has issued instruction dated 22.8.2019 and revised the monetary limits for filing appeal before this Court to ₹ 1.00 Crore and the said instructions are applicable to pending appeal. It is further averred that office of Commissioner of Central Goods and Service Tax, Rohtak has sent instruction to the effect that personal penalty involved in the appeal being ₹ 5 lacs is below prescribed threshold limit and as such prayer for withdrawal of the appeal. Application dismissed as withdrawn.
- 2019 (11) TMI 14
Permission for withdrawal of appeal - monetary amount involved in the appeal - CENVAT Credit - HELD THAT:- It is averred in the application that Central Board of Indirect Taxes and Customs has issued instruction dated 22.8.2019 and revised the monetary limits for filing appeal before this Court to ₹ 1.00 Crore and the said instructions are applicable to pending appeal - It is further averred that office of Commissioner of Central Goods and Service Tax, Rohtak has sent instruction to the effect that duty involved in the appeal being ₹ 66, 30, 293/- is below prescribed threshold limit and as such prayer for withdrawal of the appeal. Application dismissed as withdrawn.
- 2019 (11) TMI 13
Permission for withdrawal of appeal - monetary limit involved in the appeal - Clandestine removal - HELD THAT:- It is averred in the application that Central Board of Indirect Taxes and Customs has issued instruction dated 22.8.2019 and revised the monetary limits for filing appeal before this Court to ₹ 1.00 Crore and the said instructions are applicable to pending appeal. It is further averred that office of Commissioner of Central Goods and Service Tax, Mohali has sent instruction to the effect that personal penalty involved in the appeal being ₹ 10, 95, 000/- is below prescribed threshold limit and as such prayer for withdrawal of the appeal. Application dismissed as withdrawn.
- 2019 (11) TMI 12
Permission for withdrawal of appeal - monetary limit involved in the appeal - HELD THAT:- It is averred in the application that Central Board of Indirect Taxes and Customs has issued instruction dated 22.8.2019 and revised the monetary limits for filing appeal before this Court to ₹ 1.00 Crore and the said instructions are applicable to pending appeal. It is further averred that office of Commissioner of Central Goods and Service Tax, Mohali has sent instruction to the effect that personal penalty involved in the appeal being ₹ 86, 63, 000/- is below prescribed threshold limit and as such prayer for withdrawal of the appeal. Application dismissed as withdrawn.
- 2019 (10) TMI 1217
Prayer to withdraw the appeal - monetary amount involved in the appeal - Maintainability of appeal - time limitation - HELD THAT:- Vide instructions dated 22.8.2019, the Central Board of Indirect Taxes and Customs has prescribed the monetary limits for filing the prosecuting appeals in the Hon'ble High Court at ₹ 1 crore and above - It is further stated therein that vide email dated 25.9.2019, counsel has instructions to withdraw the present appeal, since the duty amount involved in the present appeal is ₹ 90, 99, 392/- - The application is supported by an affidavit of the counsel for the appellant. Application dismissed as withdrawn.
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