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Central Excise - High Court - Case Laws

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• 2022 (6) TMI 1212
  
  Extended period of Limitation - suppression of facts or not - details of trading was available in the Balance Sheet of the respondent during the relevant period and that there was much confusion during the relevant period as to whether credit could be availed in respect of trading activities and the issue was in litigation leading to perversity - mere availability of details of trading in Balance Sheet is sufficient to drop the demand for extended period on the ground that there was no suppression, or not - attributing the prior knowledge of trading activity of the respondent ignoring the fact that the respondent produced the Balance Sheet only during the investigation and not prior to that. HELD THAT:- Undisputed facts of the case are, as recorded in paragraph 6 of the show cause notice, it was issued based on the balance sheet for the y....... + More

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• 2022 (6) TMI 1133
  
  Recovery of dues - priority over of the dues - Whether in the absence of any provisions providing for First Charge in relation to Central Excise dues in the Central Excise Act, 1944, the dues of the Excise department would have priority over the dues of the Secured Creditors or not? - HELD THAT:- The petitioner-Bank is having first charge over the property belongs to the respondent No.3 and prays for deciding the matter in the light of the law laid down by Hon'ble Apex Court in the case of PUNJAB NATIONAL BANK VERSUS UNION OF INDIA & ORS. [2022 (2) TMI 1171 - SUPREME COURT], where it was held that the provisions contained in the SARFAESI Act, 2002, even after insertion of Section 11E in the Central Excise Act, 1944 w.e.f. 08.04.2011, will have an overriding effect on the provisions of the Act of 1944. In view of the aforesaid judg....... + More

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• 2022 (6) TMI 978
  
  Refund of Service tax - service tax invoices subsequently cancelled by issuing credit notes to the customers which had the effect that payment of service tax on such cancelled invoices were not required as per law - parties renegotiated the invoices issued under the Finance Act, 1994 and the Appellant had issued a credit note which annulled/cancelled the invoices issued and the denial of refund of the stated amount would be in violation of the Statutory Provisions - amount of tax paid under Finance Act, 1994 due to renegotiation of invoice with the service receiver and having given a credit note of the payment made, the tax so paid should have to be refunded to the appellant - HELD THAT:- In MADRAS PORT TRUST VERSUS HYMANSHU INTERNATIONAL [1979 (1) TMI 105 - SUPREME COURT], it is held that it is high time that the Government and Public Au....... + More

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• 2022 (6) TMI 962
  
  Levy of excise duty and NCCD under the Central Excise Act, 1944 - levy and collection of National Calamity Contingency Duty (NCCD for short) on tobacco and tobacco products - Whether after coming into force of Constitutional 101st Amendment Act, w.e.f 01.07.2017, the levy of Basic Excise Duty and levy of NCCD which is a duty of excise on tobacco and tobacco products is constitutionally valid? - simultaneous levy of GST under Article 246-A and levy of basic excise duty and NCCD under Article 246 qua tobacco and tobacco products - Excise duty has been levied on a separate and distinct aspect namely manufacture of tobacco products or not? - levy of NCCD as surcharge on tobacco products - levy of excise duty on tobacco and tobacco products is violative of Article 14 of Constitution of India or not? HELD THAT:- It is a well settled rule of sta....... + More

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• 2022 (6) TMI 709
  
  Removal of scraps - authorized removal or not - permission under Rule 57F (2) of the Excise Rules for reprocessing of inputs required from the applicant authorities before removal of various types of scraped cables and lead scraps for reprocessing to the factory of job workers or not - loss which waste and scrape of copper arising during reprocessing has to be returned to the factor or not - extension of time if loss not returned within 60 days - suppression and willful mistake or not - invocation of extended period of limitation - HELD THAT:- The order passed by the Tribunal was just and proper and does not call for any interference. Extended period of limitation - HELD THAT:- To invoke the power under Section 11A that is to invoke the extended period of limitation there should be a clear finding of willful mis-statement or suppression o....... + More

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• 2022 (6) TMI 708
  
  Interest on delayed refund - Extended Period of limitation - refund having been made beyond the period of three months from the date of filing of application for refund - Section 6 of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 and section 11BB of the Central Excise Act, 1944 - HELD THAT:- From bare perusal of Section 6 of the 2020 Act, it is evident that the time limit as and where prescribed in the provisions of Central Excise Act, 1944 is deemed to be extended without any exception. Thus, the time limit prescribed in Section 11BB of the Central Excise Act is deemed to be extended by Section 6 of the 2020 Act. As such, in view of the overriding effect of Section 6 of the 2020 Act, the time limit of three months prescribed for grant of refund u/s 11BB also stands extended till 30th September, 20....... + More

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• 2022 (6) TMI 379
  
  CENVAT Credit - capital goods procured and installed by the assessee for the purpose of manufacture of the said goods which are exempted from payment of duty - interpretation of Rule 6(4) of the CENVAT Credit Rules, 2004 - HELD THAT:- On perusal of Rule 6(4) of CENVAT Credit Rules, 2004 which is absolutely clear that if capital goods are used for manufacture of dutiable goods within a period of two years from the date of commencement of commercial production or from the date of installation as per proviso, the same will be entitled for CENVAT Credit. It is relevant to consider that in light of Section 37 of the Act of 1944, the CENVAT Credit Rules, 2004, are framed with the beneficiary intention and to give exclusive effect of duty paid under the VAT regime of Taxation. The legislature in its wisdom has exclusively specified in Rule 6(4)....... + More

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• 2022 (6) TMI 302
  
  Validity of SCN issued - Power of trial court to accept the challenge the validity of SCN - Prosecution proceedings against the accused - applicability of time limitation - imposition of cost upon the Central Excise Officer - monitory decree alongwith the interest - acquittal of the accused - suit for permanent injunction for restraining the defendants from taking action against him. Validity of SCN - plaintiff has challenged the show cause notice issued under the Act on the grounds that it was issued after lapse of 6 months and it is time barred - HELD THAT:- In the present case, it is admitted fact that notice has been issued to the plaintiff after six months. It is also admitted facts that against the said notice, the plaintiff ha approached the authority by way of appeal and even thereafter by way of revision, challenging the said not....... + More

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• 2022 (6) TMI 175
  
  Rebate claim - duty paid on the exported finished goods - All Industry Rates of Draw back - Non availment of benefit of Cenvat credit or the benefit of rebate of duty paid on the materials used in the manufacture of export products - Rule 18 of the Central Excise Rules, 2002 r/w Notification 19/2004-CE(N.T.), dated 06.09.2004 - HELD THAT:- It is the assertive stand of the appellants that they have not availed double benefit as alleged by the respondent authorities all along - According to the appellants, the N/N. 68/2011-Cus. (N.T.) dated 22.09.2011 would clearly go to show the double benefit only, where drawback of duty paid on inputs/input services and rebate of duty paid on inputs under Rule 18 of CER, 2002 are simultaneously availed. However, the appellants have not availed any rebate of duty paid on inputs/input services and therefor....... + More

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• 2022 (6) TMI 5
  
  Rejection of rebate claim - denial of rebate on the ground of discrepancy in the export documents - HELD THAT:- Refund of input tax credit on exports made under bond/LUT under Rule 5 of the Central Tax Credit Rules, 2004 and rebate under Rule 18 of the Central Excise Rules, 2002 is an export incentive given apart from the export incentive in the form of duty drawback under Section 75 of the Customs Act, 1962 r/w Customs, Excise and Service Tax Drawback Rules, 1995 as replaced by 2017 Rules apart from various export incentive that are given to an exporter under the provisions of the Foreign Trade Policy. The order of the original authority after remand confirmed that the petitioner had indeed exported goods and therefore, the petitioner would be entitled for rebate. However, the portion of the rebate has been rejected on the ground that th....... + More

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• 2022 (5) TMI 1395
  
  Refund of excess paid Swachh Bharat Cess and Krishi Kalyan Cess paid in excess alongwith excess Service Tax paid, alongwith interest - Jurisdiction - Reopening of assessment - HELD THAT:- Considering the fact that assessment had already been carried out by the adjudicating authority via order dated 03.01.2019 and that the remand order of the appellate authority was confined two only two aspects, which is noticed that, there was no occasion for the adjudicating authority to pass a fresh assessment order reopening the entire assessment. In this case, since the amounts and period involved are not in dispute and because the adjudicating authority has not furnished an acceptable reason as to why the amount paid towards tax and cess i.e., Rs.36,27,615/- [Rs.36,94,642/- less Rs.67,027/] is not refunded, we are inclined to allow the writ petition....... + More

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• 2022 (5) TMI 1361
  
  Maintainability of appeal - Monetary limit for filing appeal by Revenue - proper jurisdiction - Recovery of refund already granted - Whether the assessee is liable to return the Education Cess and Secondary & Higher Education Cess on the changed view of law as subsequently laid down by the Full Bench of the Supreme Court in M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA & OTHERS [2019 (12) TMI 286 - SUPREME COURT], over ruling M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT], on the basis of which the aforesaid Cess was refunded to the assessee? HELD THAT:- In an appeal filed by the Commissioner of Central Excise before the High Court of Sikkim u/s 35G of the Act in relation to refund of Education Cess and the Secondary & Higher Education Cess the value involv....... + More

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• 2022 (5) TMI 1248
  
  Constitutional validity of amendment in the Area Based exemption - Denial of benefit of exemption - exclusion of a particular khasra in the Excise Notification - Benefit of N/N. 50/2003 CE dated 10.06.2003 - waiver of pre-deposit - HELD THAT:- It is apparent from the record that the Court has proceeded to take a view that, even if there is a mistake in not including certain khasra numbers, the Court would be encroaching on the policy matters, if it was to be persuaded to issue a direction to include specified khasra numbers. It is apparent from the prayer clause of the writ petition that the petitioner says that exclusion of a particular khasra in the Excise Notification No. 50/2003-CE dated 10.06.2003 is merely procedural, still, it touches upon the policy of the State Government and, hence, should not be rightly interfered by the Court exercising review jurisdiction under Article 226 of the Constitution of India. The writ petition stands dismissed.

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• 2022 (5) TMI 1247
  
  Condonation of delay in filing appeal - Amount billed gross shown in ST-3 return arising suppression of material facts - extended period of limitation - HELD THAT:- The respondent/assessee is a cooperative society and was issued with show cause notice alleging contravention of the provisions of Sections 66, 67 and 68 of the Finance Act, 1994 read with Rules 5 and 6 of the Service Tax Rules, 1994 on the ground that they have failed to pay service tax on the amount indicated on the value of the taxable services under the category of “Man Power Recruitment or Supply Agency Service” classifiable under sub Section 105(k) of Section 65 of the Finance Act. The show cause notice was not issued solely at the instance of the department but the department was directed to issue the notice on account of audit objection which has been raise....... + More

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• 2022 (5) TMI 1246
  
  Validity of revival notices - revival notices challenged on the ground that after issuance of original show cause notices, no intimation whatsoever was given to them regarding the status thereof or that the same had been consigned to the Call Book - HELD THAT:- It is an admitted position that the original show cause notices were issued to the petitioners between the years 2007 and 2012. There is no denial on part of the respondents that the decision to send assessment proceedings sought to be taken under these show cause notices to the Call Book was never communicated to the petitioners. The revival notices were issued out of the blue in the years 2020 and 2021. Immediately on receiving the revival notices, the petitioners forwarded letters to the respondent Assistant Commissioner, CGST seeking reasons for sending the cases to the Call Bo....... + More

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• 2022 (5) TMI 1118
  
  Condonation of delay of 411 days in filing appeal - HELD THAT:- The delay ought to be condoned, as the appeal cannot be subjected to a different treatment - the delay is condoned.

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• 2022 (5) TMI 1117
  
  Clandestine manufacture and removal of tobacco/gutkha without payment of central excise duty and education cess - HELD THAT:- A coordinate bench of this Court in PRABHAT ZARDA FACTORY CO., K.N. MEHROTRA, PURUSHOTTAM KUMAR ARYA VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI [2018 (5) TMI 1670 - DELHI HIGH COURT] where it was held that In the present case, the impugned order on all aspects and contentions merely reproduces the order-in-original, without specifically and independently examining and dealing with diverse contentions. Reference and independent and exhaustive elucidation of the factual contentions raised by the appellants and consideration of legal issues based upon the said contentions is conspicuously lacking and missing. The impugned order suffers on this account. The substantial questions of law are answered in favour of the appellants and against the respondent with an order of remand to the Tribunal for fresh decision - appeal allowed.

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• 2022 (5) TMI 1041
  
  Area Bases Exemption - fixation of special rate representing the actual value addition - Recovery of refund / reversal of credit received by the petitioner as per the interim order - Later Hon'ble SC has upheld the validity of withdrawal of area based exemption - principles of promissory estoppel - effect of judgment of the Supreme Court in the case of V.V. F. Ltd. [2020 (4) TMI 669 - SUPREME COURT] and its effect of the said judgment on the amendment made by the Notification No. 38/2008-CE dated 10/6/2008 - HELD THAT:- In the instant judgment, this Court had explained the scope and ambit of Paragraph 3(1) as was inserted by the Notification No. 38/2008-CE. In terms with the said provision, the manufacturer shall have the option not to avail the rates specified in the table and apply to the Commissioner of Central Excise or the Commis....... + More

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• 2022 (5) TMI 1040
  
  Permission for withdrawal of appeal - Input Tax Credit - GTA Services - applicability of case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] without verifying the fact that the sale are made on FOR basis - place of removal - HELD THAT:- When the matters were taken up for consideration, the learned counsel appearing for the appellant sought permission of this Court to withdraw these civil miscellaneous appeals and also made an endorsement to that effect. In view of submission and endorsement made by the learned counsel for the appellant, these civil miscellaneous appeals are dismissed as withdrawn.

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• 2022 (5) TMI 866
  
  Condonation of delay of 1433 days in filing appeal before the tribunal - Tribunal condoned the delay in revenue appeal - error of law - error apparent on the face of record or not - Revenue submitted that no error not to speak of any error of law could be said to have been committed by the Tribunal in passing the impugned order condoning the delay of 1433 days - HELD THAT:- In the case of Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam [1958 (2) TMI 37 - SUPREME COURT], the Supreme Court laid down what the expression "error apparent on the face of the record" connotes. The jurisdiction of the High Court on certiorari may be invoked if it is only an error of law apparent on the face of the record and not every error either of law or fact which can be corrected by a superior court in the exercise of its sta....... + More

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