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Central Excise - High Court - Case Laws
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- 2021 (2) TMI 1123 - GUJARAT HIGH COURT
Refund of Education Cess and Secondary & Higher Secondary Education Cess - benefit under N/N. 39/2001-CE dated 31.7.2001 availed - period from January-2007 to May-2007 - HELD THAT:- The judicial discipline also would require to give effect to the order of the higher appellate authorities and not to once again initiate the actions of recovering the very refund claim, which has been given to the petitioner after a long drawn battle. Issue Notice for final disposal, returnable on 8.3.2021. Interim relief in terms of paragraph 18.B. is granted, till the returnable date. Learned Central Government Standing Counsel, Mr.Parth Divyeshvar waives service of Notice for and on behalf of the respondent No.1.
- 2021 (2) TMI 1114 - BOMBAY HIGH COURT
Permission for withdrawal of appeal - amount involved in the appeal is below the prescribed monetary limit - HELD THAT:- Appeal is disposed of as withdrawn.
- 2021 (2) TMI 1104 - MADRAS HIGH COURT
Validity of Direction of the Tribunal to issue fresh SCN - demand beyond the scope of original SCN - power of Tribunal in making certain observations with regard to the validity of the CENVAT Credit Rules, 2004 qua the provisions of Section 37 of the Act - validity of proceeding to direct the original authority to issue a show cause notice to the appellant/assessee as regards its very entitlement for CENVAT credit - HELD THAT:- The Tribunal appears to have suo motu taken up for consideration as to whether credit of service tax paid or payable on taxable service is allowable. The Tribunal suo motu proceeded to refer to Section 37(2), Section 11AB of the Act and made certain observations, which are in the nature of conclusive observations. The learned counsel for the assessee had argued that the assessee had been put on notice only regardin....... + More
- 2021 (2) TMI 1102 - GUJARAT HIGH COURT
Principles of Natural Justice - serious grievance on the part of the petitioner is that not only there has been no specific order passed by the concerned authority denying the opportunity of cross examination to the petitioner, it has chosen to decide both the show cause notices in a common order, which has been passed on dated 4.9.2020 without even availing opportunity of hearing - HELD THAT:- So far as insistence on the part of the petitioner for personal hearing is concerned, the Court is not inclined to entertain that plea as the virtual hearing is being conducted right from the time the lock-down had been effected, even in those matters which are quite contested and one of them is the present matter also. So far as the request of cross examination made by the petitioner dated 19.8.2020 is concerned, we notice that in the Order-in-Ori....... + More
- 2021 (2) TMI 1044 - MADRAS HIGH COURT
Refund of tax amount paid - Amount paid under protest - applicability of time limitation - It is the case of the petitioner that by oversight it had not paid duty on goods captively consumed and had also wrongly availed Input Tax Credit, MODVAT Credit under the provisions of the Central Excise Rules, 1944 - HELD THAT:- Excess after adjustment of cumulative tax liability has to be refunded back. Question of invoking the limitation prescribed under Section 11B of the Central Excise act, 1944 is misplaced as the amount paid pending investigation are nothing but the amount paid “under protest” as has been held by the Hon’able Supreme Court in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT]. Thus, the observation of the first respondent Settlement Commission that the petitioner was required t....... + More
- 2021 (2) TMI 974 - KARNATAKA HIGH COURT
Refund claim - Period of limitation - Relevant Date - Finalization of provisional assessment - It is contended that, the time limit of one year to claim refund will apply from the date of finalization of order of assessment by the Assistant Commissioner of Central Excise. Therefore, the Tribunal erred in considering the finalization of prices between the appellant and the oil companies as the relevant date for claiming refund as per Section 11B of the Act - Whether CESTAT having considered the assessment as provisional, has erred in equating the date of finalization of price by customers to finalization of assessment? - HELD THAT:- Admittedly, the application for refund made by the appellant on 24.08.2006 was rejected by the Assistant Commissioner by an order dated 24.05.2007. Being aggrieved by the order of the Assistant Commissioner, th....... + More
- 2021 (2) TMI 922 - JHARKHAND HIGH COURT
Refund of excess amount of excise duty paid - appeal has been rejected by the learned CESTAT on the sole ground that petitioner had not been able to produce the clearance certificate from the Committee on Disputes (COD) - HELD THAT:- The learned CESTAT proceeded on an erroneous understanding that the appeal instituted by the appellant could not be entertained since the COD permission had not been obtained. Learned Tribunal gave a liberty to the appellant to seek restoration of the appeal after obtaining the COD permission. However, that requirement has been done away with by virtue of the judgment rendered by the Apex Court. The reasoning of the learned Tribunal in dismissing the appeal does not exist. The matter is remitted to the learned CESTAT for hearing the appeal on merits - Petition allowed by way of remand.
- 2021 (2) TMI 910 - GUJARAT HIGH COURT
Principles of Natural Justice - after long 15 years of the remand by the Appellate Tribunal, respondent No.2 scheduled personal hearing of the show cause notice - petitioners not put to notice of transfer of call book at any juncture in the interregnum is permissible under the law - grievance on the part of the petitioner is that the inordinate delay of 15 years in purported adjudication of the said show cause notice in the post remand period of the order of the appellate Tribunal is ex facie without jurisdiction, without authority of law and in clear breach of the principles of natural justice and such action is liable to be set aside on the various grounds raised before this Court. HELD THAT:- In the case of SIDDHI VINAYAK SYNTEX PVT LTD. VERSUS VERSUS UNION OF INDIA & 2 [2017 (3) TMI 1534 - GUJARAT HIGH COURT], this Court extensive....... + More
- 2021 (2) TMI 844 - GUJARAT HIGH COURT
Seeking for restitution of amount deposited by petitioner - petitioner had voluntarily deposited the amount only with a view to avoiding the amount of interest, penalty etc. - HELD THAT:- There is no quarrel to the proposition that if any payment is made by the assessee, as a condition precedent for hearing an appeal, the same does not bear the character of duty, but has the character only of security deposit and the same is required to be refunded the day appeal is disposed of by the authorities inasmuch as, the parties are put back to the situation of a show cause notice against the assessee being adjudicated by the authority. Therefore, the deposit made during the course of investigation and before the issuance of the show-cause notice or for hearing of the appeal, the assessee is entitled for the refund in the event of the appeal bein....... + More
- 2021 (2) TMI 828 - GAUHATI HIGH COURT
Interest on delayed refund of Central Excise duty paid - Whether interdepartmental communication or departmental circulars in respect of an interpretation of a statutory provision will have any effect even when the interpretation sought to be projected is in conflict and/or contrary to law declared by the jurisdictional High Court? - N/N. 33/99 dated 08-07-1999. Notification No. 33/99 dated 08-07-1999 - HELD THAT:- It is seen that once the judicial pronouncement is made by the High Court or by the Supreme Court, unless the same is subsequently interfered with by judicial means, the same will have a binding effect on all Subordinate Authorities including the quasi judicial authorities like the respondent in the present case. Unless the respondent Department come up in any appeal and seek to reagitate the issues already decided by this Cour....... + More
- 2021 (2) TMI 809 - BOMBAY HIGH COURT
Recovery of MODVAT Credit - Capital goods or not - H.R. Plates/Coils - used in construction of platform for Conveyor Gallaries - whether can be regarded as machine, machinery, plant, equipments apparatus, tools, or appliances or their components spare parts and accessories specified at Explanation I (a), (b) or any other goods specified at Explanation 1(c) or 1(d) or 1(e) to Rule 57-Q or not? - immovable property being a non excisable goods attached to earth or not - penalty under Rule 173Q of erstwhile Central Excise Rule 1944. HELD THAT:- The Division Bench of this Court in M/S MANIKGARH CEMENT (A DIVISION OF CENTURY TEXTILES & INDUSTRIES LIMITED) VERSUS THE COMMISSIONER OF CUSTOMS & CENTRAL EXCISE [2017 (8) TMI 829 - BOMBAY HIGH COURT] found that the Authority had not rendered a factual finding as to the manner of use of manufa....... + More
- 2021 (2) TMI 806 - MADRAS HIGH COURT
Imposition of penalty u/r 25 of CER - Second stage Dealer - Violation in respect of issuing Invoice - whether, the first respondent is correct in holding that the appellant has not contested the commission of fraud when all along the appellant is contesting and participating in the proceedings - scope of the adjudication order - HELD THAT:- Rule 25 of Central Excise Rules would clearly stand attracted to the case on hand. Rule 25 deals with 'confiscation and penalty'. Sub-Rule (1) states that subject to the provisions of Section 11AC of the Act, if any producer, manufacturer, registered person of a warehouse or a registered dealer (a) removes any excisable goods in contravention of any of the provisions of the rules or the notifications issued under the rules or (d) contravenes any of the provisions of the rules or the notificatio....... + More
- 2021 (2) TMI 662 - BOMBAY HIGH COURT
CENVAT Credit - Deposit Insurance and Credit Guarantee Corporation for insuring the deposits of the customers - HELD THAT:- The issue is decided in the case of BANK OF MAHARASHTRA, BANK OF BARODA (FORMERLY KNOWN AS DENA BANK) , BANK OF BARODA, UNION BANK OF INDIA, STATE BANK OF INDIA VERSUS COMMISSIONER, CGST & CX, PUNE-II, COMMISSIONER OF SERVICE TAX-I AND IV, MUMBAI, COMMISSIONER OF CENTRAL EXCISE [2020 (10) TMI 300 - BOMBAY HIGH COURT] where it was held that the credit is allowed. Appeal is remanded back to the CESTAT for fresh decision in conformity with the decision rendered by the Larger Bench - appeal allowed by way of remand.
- 2021 (2) TMI 661 - PATNA HIGH COURT
Maintainability of petition - availability of an equally alternative remedy stipulated under the Statute - violation of principles of natural justice or not - HELD THAT:- The petitioners have failed to establish how the order passed is in "total" violation of the principles of natural justice. What prejudice, much less serious in nature, stands caused on account of non-examination of the witnesses, is also not born out from the material on record or demonstrated. The assessing authority has found the petitioners and concerns associated with them, dealing in the product i.e. production/trade of cigarettes, which are excisable under the Act. On 13th December 2013, a raid was conducted, inter alia, at the petitioner's premises, and got recovered huge stocks of more than two crores of cigarette sticks. The petitioners were arres....... + More
- 2021 (2) TMI 655 - MADRAS HIGH COURT
SEZ unit - Eligibility of HSD/fuel for exemption from Central Excise Duty - Rule 27 of Central Excise Rules - HELD THAT:- In the present case, Fuel/HSD is used to run the capital equipment deployed directly in the manufacturing process. No exemption is sought for fuel used in running of vehicles/other equipment not connected with the eligible activity. The capital equipment deployed have a direct nexus with the manufacturing process as, in their absence, the equipment cannot be run and there would, consequently, be no manufacture/eligible activity. HSD/fuel is thus consumed in the running of the capital equipment which is intrinsic to the process of manufacture itself. The respondent has itself accepted this position as exemption is granted with demur to fuel/HSD used in running vehicles owned by the petitioner and denied only to leased e....... + More
- 2021 (2) TMI 495 - MADRAS HIGH COURT
CENVAT credit availed and distributed by the respondent prior to getting registered as an input service Distributor - penalty under erstwhile Rule 15(4) of the CENVAT Credit Rules, 2004 - CHA Services - services availed after the goods has been cleared from the place of removal. CENVAT credit availed and distributed by the respondent prior to getting registered as an input service Distributor under the Act - penalty under erstwhile Rule 15(4) of the CENVAT Credit Rules, 2004 - HELD THAT:- The issue has already been decided in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS DASHION LTD [2016 (2) TMI 183 - GUJARAT HIGH COURT] where it was held that It is true that the Government had framed Rules of 2005 for registration of input service distributors, who would have to make application to the jurisdictional Superintendent of Central Excise....... + More
- 2021 (2) TMI 493 - BOMBAY HIGH COURT
Clandestine Removal - applicability of principle of “beyond reasonable doubt” or on the principle of “preponderance of probability” - cross examination of co-Noticees - absence of cross examination of the co-Noticees - the documentary evidence itself lost its relevance, especially when none of the statements had been retracted by the tenderers - ignoring vital evidences presented by the Department - Penalty. HELD THAT:- The Tribunal found that there were serious lacunae in the investigation and analyzed those lacunae in respect of each of the demand. The largest demand was of ₹ 83.09 Lakh and the evidence in respect of the said demand was 136 LRs and daily book register and there was no evidence that so produced that could be relied upon. The investigation was not carried out at the end of the actual transpor....... + More
- 2021 (2) TMI 490 - MADRAS HIGH COURT
Deletion of penalty - validity of ignoring the explanation 1 appended to Sec.11AC for deleting mandatory penalty on respondent - whether assuming “bonafides”ignoring the categorical finding by the authorities below that the conduct of the respondent amounts to “suppression”? - applicability of decisions reported in COMMR. OF C. EX., BANGALORE-I VERSUS GENEVA FINE PUNCH ENCLOSURES LTD. [2011 (1) TMI 746 - KARNATAKA HIGH COURT] and PANASONIC AVC NETWORKS INDIA CO. LTD. VERSUS COMMR. OF C. EX., MEERUT-II [2010 (8) TMI 765 - CESTAT, NEW DELHI]. HELD THAT:- Section 11AC of the Act deals with penalty for short levy or nonlevy of duty in certain cases and the amount of penalty for such non-levy or short levy or non-payment or short payment or erroneous refund is in terms of Clauses (a) to (e) of the said provision. If we ....... + More
- 2021 (2) TMI 408 - BOMBAY HIGH COURT
Entitlement of the appellant to credit of additional duty of customs, education cess, secondary and higher education cess and special duty of customs paid on polyurethane resin for payment of CENVAT duty - Process amounting to manufacture or not - HELD THAT:- Since the related appeal is of the year 2013, it would be just and proper to hear the appeal at an early date. Moreover, though the show cause notices may be post the decision of CESTAT which is being examined in the related appeal, those draw sustenance from the reasons recorded in the order of the CESTAT which is the subject matter of the related appeal. It would be in the interest of justice if the show cause notices are not proceeded further till we decide the related appeal - Application disposed off.
- 2021 (2) TMI 388 - CALCUTTA HIGH COURT
Special Audit u/s 14AA - Principles of Natural Justice - primary grievance of the petitioner is that the impugned proceedings have been initiated without giving the petitioner an opportunity of hearing - Special audit in cases where credit of duty availed or utilised is not within the normal limits - Section 14AA of the Central Excise Act - HELD THAT:- The legislative intent and object of introducing Section 14AA of the Act was to scrutinize cases of abnormally high availment of MODVAT credit. This section seeks to prevent misuse of MODVAT credit by providing for cost auditing of accounts. Under this section, the Commissioner of Central Excise is the cornerstone on which the whole scheme of cost audit is balanced. If the Commissioner is satisfied that credit has been availed on excisable goods by a manufacturer which is beyond the normal ....... + More
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