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Central Excise - High Court - Case Laws

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• 2022 (12) TMI 268
  
  Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- The matter involving somewhat similar issue(s) i.e., CEAC 5/2022 was closed by us, whereupon a proposal was made by revenue to the Central Board of Indirect Taxes and Customs [in short “Board”] to file a special leave petition (SLP). The Board, via its communication dated 19.10.2022, categorically indicated that an SLP should not be preferred, keeping in view, the monetary limit; however, the question of law could be kept open in terms of Section 35R of the Central Excise Act, 1944. Appeal closed.

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• 2022 (12) TMI 135
  
  Interest on refund claim - interest is to be granted from the expiry of three months from the date of fling of the initial refund claimed or from the date of the order of the authority finally granting refund? - section 11BB of CEA - HELD THAT:- The date of fling of application for refund before the Authority is not in dispute. Assuming that the Assistant Commissioner of Central Excise, in the present case, had proceeded to accept the claim of the Appellant for refund and proceeded to pass an Order in terms of Section 11B(2) of the Act, then in case the amount was not refunded despite such an Order, the Appellant would be entitled to interest on the delayed payment of the refund after the expiry of three months from the date of such an Order. Section 11B, therefore, does not at all envisage an application to be fled seeking refund. The on....... + More

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• 2022 (12) TMI 8
  
  Validity of order passed by Settlement Commission - it is alleged that the petitioners have not made full and true disclosure and have not cooperated in the proceedings conducted by it - HELD THAT:- Although, Mr Singla’s stand is that the provisions of Section 32F(5) of Central Excise Act 1944 will come to the aid of the respondents/revenue, that position is not correct. Once the Settlement Commission comes to a conclusion that there has been no true and fair disclosure of facts and the manner in which the liability has been derived, the Settlement Commission cannot then proceed to adjudicate the liability. This emerges upon a plain reading of Section 32E of Central Excise Act, 1944. Unless the twin conditions mentioned therein are fulfilled, the Settlement Commission cannot move further in the matter. The Settlement Commission is, ....... + More

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• 2022 (12) TMI 7
  
  Recovery of excise dues payable by the erstwhile owner of the land and property - restraint on petitioner from alienating the land in any manner - HELD THAT:- Supreme Court in Macson Marbles (P) Ltd. v. Union of India [2003 (11) TMI 71 - SUPREME COURT] and Union of India v. SICOM Limited [2008 (12) TMI 53 - SUPREME COURT] held that as far as dues of central excise are concerned, those are neither related to plant and machinery nor to the land and building. Thus, it did not arise out of the said properties. Dues of central excise became payable on the manufacturing of excisable items by the erstwhile owner. Therefore, the excise duties were in respect of those items which were produced and not the plant and machinery which were used for the purpose of manufacturing. This decision has been followed by this Court in Gopal Agarwal v. Commissi....... + More

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• 2022 (11) TMI 1145
  
  CENVAT Credit - capital goods installed by the Respondent for manufacturing of exempted goods - dutiability of the final produce on the date of receipt of capital goods irrespective of whether the exempted goods have been manufactured or not - Business Support Service - time limitation - HELD THAT:- The facts in the present case are not in dispute. Admittedly, the respondent/assessee had initially filed a declaration on 04.08.2006 to avail benefit of Notification No.49-50/2003-CE, dated 10.06.2003, area based exemption for manufacture of goods. However, the respondent/ assessee then filed another declaration on 29.06.2007 to the effect that it had let out the premises on lease to Hindustan Liver Limited for manufacture of intended goods. Time limitation - HELD THAT:- The Show Cause Notice dated 13.07.2010, was issued with regard to the ye....... + More

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• 2022 (11) TMI 1124
  
  Interest on delayed refund - time limitation - whether there exists any liability of the revenue to pay interest under Section 11BB of the Act and whether it commences from the date of expiry of three months from the date of receipt of application for refund or on the expiry of the said period from the date on which the order of refund is made? - Section 11BB of the Central Excise Act 1944 - HELD THAT:- The present controversy is squarely covered by the judgment of the Supreme Court in Ranbaxy Laboratories Ltd [2011 (10) TMI 16 - SUPREME COURT]. The language of Section 11BB is plain and unambiguous. It casts a duty on the respondents to pay the interest on delayed refunds, if refund is not made within three months from the date of receipt of application under Sub Section 1 of the relevant Section. Indisputably, the said application was fi....... + More

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• 2022 (11) TMI 1091
  
  CENVAT Credit - capital goods used in the factory (Power Plant of KMCL) meant for another company/assessee (NINL) for manufacture of final products which are different and distinct - Department contended that the CC Rules specifically mentioned that capital goods and inputs for the purposes of the said Rules should be used in or in relation to the manufacture of final products within the factory of production - HELD THAT:- The definition of Factory does not preclude the possibility of there being two or more premises which can be “segregated by public road, canal or railway line.” How the two premises are to be considered to be part of the same factory by the Commissioner of the Central Excise has been set out in the above instructions of the CBEC. It only shows that as long as the two portions are integrally connected and int....... + More

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• 2022 (11) TMI 860
  
  Seeking refund of amount paid under threat or duress in pursuance of an investigation - authority to receive the payment when no ascertainment of the duties has been made by the Central Excise Officer - HELD THAT:- It is no doubt true that the scope of interference to a show-cause notice by a writ Court exercising its power under Article 226 of the Constitution of India, is very limited, barring few exceptions, like lack of jurisdiction or abuse of process of law, etc. In the instant case, there is a major flaw, which dispossess the jurisdiction of the respondent in proceeding further with the show-cause notice - The Bench had further held that in order to invoke sub-section 3 of Section 11(A), the Excise Officer should form an opinion and that the respondents have issued a show-cause notice after the order of the learned Single Judge, wh....... + More

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• 2022 (11) TMI 796
  
  Seeking recall of the order - appeal closed on the ground that the tax effect was below the threshold limit prescribed in the instruction dated 22.08.2019 issued by the Central Board of Indirect Taxes and Customs - HELD THAT:- The Board, in its communication dated 19.10.2022 has indicated, that an SLP should not be filed, having regard to the monetary limit, keeping the question of law open in terms of Section 35R of the Central Excise Act, 1944. Since the Board has declined to file an SLP, surely, this application for recall cannot lie - we are not inclined to entertain the recall application. Application dismissed.

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• 2022 (11) TMI 795
  
  Restoration of appeal - non-compliance of the pre-deposit of duty within the period stipulated by the Tribunal - HELD THAT:- There is no dispute with regard to the facts of this case and hence, it will be more appropriate to directly go into the issue that is involved in these appeals. The appeals filed by the appellant against the order passed by the Commissioner of Central Excise (Appeals) Madurai, before the Tribunal was accompanied by an application seeking for dispensing with the predeposit of the duty amount - Admittedly, the condition imposed by the Tribunal was not complied with and hence, a final order was passed by the Tribunal on 09.08.2007 dismissing the appeals. The Tribunal is a creature of the Statute. Hence, the Tribunal can act only in exercise of such power and jurisdiction as is conferred under the Central Excise Act. O....... + More

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• 2022 (11) TMI 794
  
  CENVAT Credit - benefit under Section 73 of the Finance Act 2010 without paying 24% interest per annum from the due date as contemplated under Section 73(2) of the Finance Act, 2010 - proviso to Rule 6(7) of the CENVAT Credit Rules 2004 - whether the subsequent amendment that was brought into force in the year 2010 and was given retrospective effect, can be put against the assessee? - HELD THAT:- There is no dispute with regard to the fact that the respondent had reversed the credit with interest by availing of the option provided under Section 73(2) of the Finance Act, 2010, on 01.08.2007, even before the issuance of show cause notice. Reliance can be placed in the case of COMMISSIONER OF CENTRAL EXCISE, CHENNAI-II VERSUS ICMC CORPORATION LTD. [2014 (1) TMI 1646 - MADRAS HIGH COURT] where it was held that Considering the fact that the as....... + More

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• 2022 (11) TMI 645
  
  Seeking revival of SCN - circular dated 26.05.2003 - HELD THAT:- Although, Ms Kavita Jha, in fairness, does not dispute that such a circular exists and the procedure encapsulated therein is in vogue, it was incumbent on the respondents to inform the petitioner/notice as to why the show cause notice was not being adjudicated. The assessees need to arrange their affairs and prepare themselves for bearing the burden of the financial liability that may befall them - there is no explanation as to why, after January 2017, no steps were taken to adjudicate the subject show cause notice. The matter needs examination - issue notice.

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• 2022 (11) TMI 632
  
  Clandestine removal - Sir Brand Gutkha and Pan Masala - requirement of corroboration from any other independent evidence of the retracted confessional statement - demand of duty based on the third party documents supported by corroborative statements, justified or not - entire evidence on record and statements of the witnesses and concerned persons, ignored - statements recorded under provisions of Section 14 of CE Act by the officers of the Department can be taken as proof of the statutory violations by the respondents or not - confiscation - redemption fine. Whether any substantial question of law arises for consideration in this appeal so as to admit it for examination within the scope of sub-section (3) and (4) of Section 35-G? - HELD THAT:- There is no dispute with regard to the factual findings recorded by the CESTAT that all person....... + More

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• 2022 (11) TMI 436
  
  Clandestine removal - suppression of acquisition - acquittal of the accused - Sections 9(1)(b) and 9(1)(bb) read with Section 9-AA of Central Excise Act and also violation of Central Excise Rules, 1944 - HELD THAT:- CESTAT had decided the issue, ultimately it has reduced the penalties and when the amounts payable are concerned, Accused No.1-Company is liable to pay Rs. 17,74,021/- towards BED and Rs.1,98,848/- towards AED totaling to Rs. 19,72,869/-. Ex.D6 which is a confidential circular enhancing the monetary limit for launching prosecutions to Rs.25 lakhs is not disputed. The said enhancement of monetary limit was prospective in nature and squarely applicable to the benefit of the appellant in the present facts and circumstances. The Hon’ble Supreme Court in the case of Radhakrishna Nagesh v. State of Andhra Pradesh [2012 (12) TM....... + More

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• 2022 (11) TMI 44
  
  Remission of duty - Tobacco - Pan Masala - goods lying without any use since 2004 - goods are unfit for consumption or not - Rule 21 of the Central Excise Rules, 2002 - HELD THAT:- As admittedly the goods being tobacco and pan masala are not fit for consumption since 2004 as they are lying without any use, the following interim order is passed in the interest of justice: (i) The petitioner shall furnish the bank guarantee of Rs. 3 Crore of any nationalized bank in favour of respondent-the Principal Commissioner, Central GST and Central Excise, Vadodara-I within a period of four weeks from today. (ii) On furnishing such bank guarantee by the petitioner, without prejudice to the rights and contentions of both the sides, the respondent shall permit the petitioner to destruct the goods in question. Stand over to 24.11.2022.

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• 2022 (11) TMI 43
  
  Marketability - different iron and steel items such as plates, angles, channels, beams etc. - turnkey project - HELD THAT:- In the instant case, what was being marketed therein are cement concrete poles, which have been manufactured, therefore, it was held thereon that the marketability of the article does not depend on the number of purchasers nor is a market confined to the territorial limits of the country. What the department would have to show is that the goods that are being manufactured by the petitioner are goods that are capable of being sold in the open market or to any purchaser. Only going by the theoretical reference that goods are marketable is not sufficient. The nature and extent of the goods requires to be defined in order to show that any one in the open market can purchase the same. In the instant case, there is no disp....... + More

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• 2022 (10) TMI 1007
  
  Demand of duty - levy of 100% penalty upon the appellant - manufacture of aluminium ingots and die castings falling under Chapter 76 of the Central Excise Tariff Act 1985 - Section 35G of the Central Excise Act, 1944 - HELD THAT:- As per averments on record appellant purchases from first stage dealer and second stage dealer and credit is availed on the basis of invoices issued by both the first stage dealer as also second stage dealer. Apparently, the Directorate General of Central Excise Intelligence conducted an investigation against M/s Bhagwati Trading Company (first Stage dealer) and M/s Jagdamba Metal Store (second stage dealer). On the basis of such investigation an opinion was formed that the first stage dealer and second stage dealer have passed cenvat credit to the appellant without actual delivery of the goods. Accordingly a sh....... + More

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• 2022 (10) TMI 1006
  
  Interpretation of statute - interpretation of mandatory time limit to file refund claim prescribed in clause (e) of the Para 3(III) of the Notification No.12/2013-ST dated 01.07.2013 issued by the Government of India, Ministry of Finance, Department of Revenue - right to hold and interpret that the mandatory condition of the Notification that the SEZ unit shall submit only one claim of refund for every quarter, can also include refund claim pertaining to invoices of previous quarters as well, i.e. consolidated invoices of period from August 2013 to October 2017, which is a a complete misreading of clause (f) of Para III of Notification No.12/2013- ST dated 01.07.2013. HELD THAT:- This court is of the view that the appeal deserves Admission on the substantial questions of law - Application disposed off.

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• 2022 (10) TMI 922
  
  Settlement Application filed by the appellant under Section 32 L of the Central Excise Act, 1944 dismissed - alleged non-cooperation by the appellant - HELD THAT:- Neither parties have questioned the 1st Report (legality). Admittedly, the 1st Report was made at the request of the appellant herein to the Respondent Commission to investigate the production capacity of the Plant pursuant to the order of this Court whereby, the order of the Settlement Commission dated 18.05.2011 rejecting the application on the ground of non-disclosure of true facts and non-cooperation was set aside. We intend to make it clear that we are not testing the legality of the 1st Report as neither parties to the Writ appeal have challenged the same and also the Report is stated to be made pursuant to and on the basis of the orders of this Court. Legality of the 2nd....... + More

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• 2022 (10) TMI 500
  
  Levy of excise duty or NCCD - tobacco and tobacco products - levy under which act after transition to GST regime - grant of exemption by way of N/N. 11/2017 dated 30.06.2017 - HELD THAT:- The levy of excise duty on tobacco and tobacco products is a matter of public policy and this Court in exercise of writ jurisdiction would not interfere with the same. The CGST itself contemplates levy of excise duty upon tobacco and tobacco products apart from they being taxed under the provisions of CGST. There is no error in the same. Thus, the respondents are entitled to levy CGST as well as excise duty on tobacco and tobacco products. Whether when excise duty is exempted, can NCCD be leviable under the provisions of Section 136 of the Finance Act, 2001? - HELD THAT:- NCCD is a surcharge of the excise duty. The case of the petitioners is that, when e....... + More

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