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Central Excise - High Court - Case Laws

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• 2020 (9) TMI 789 - GUJARAT HIGH COURT
  
  Time limitation - Refund of CVD / Excise duty - case is yet to be decided even after 16 years lapsed - HELD THAT:- The impugned show cause notices are very interesting to read as it exhibits complete non-application of mind. The claim of the writ applicant put forward almost 16 years back is yet to be decided by the authority because, according to the respondents, the original record of the claim is not available. We fail to understand that if the claim of the writ applicant could not be looked into and decided by the authority for want of necessary materials, then the authority could have taken an appropriate decision one way or the other for passing an appropriate order. We fail to understand what was the good ground for the department to issue three show cause notices. The respondents are directed to decide the claim of the writ applic....... + More

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• 2020 (9) TMI 646 - MADRAS HIGH COURT
  
  Extended period of Limitation - suppression of relevant facts or not - Section 11A of Central Excise Act - valuation under Rule 8 of the Central Excise (Valuation) Rules 2000 - HELD THAT:- The extended period of limitation in the present case was not available to the Revenue Authorities and therefore, the Show Cause Notice issued to the Assessee on 19.8.2010 could not cover the period in question viz., 2007-2008 to 2009-2010 except to the extent of one year from the date of issuance of Show Cause Notice on 19.8.2010 and therefore, the learned Tribunal was justified in holding in favour of the Assessee to that extent. We fail to understand that when the Assessee had changed its method of valuation on the advice of the Department's Authority himself based on some Audit objection as indicated in the communication dated 17.1.2008, how by ....... + More

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• 2020 (9) TMI 303 - KERALA HIGH COURT
  
  Rectification of Mistake/Review of Order - non-compliance with the rules of natural justice - HELD THAT:- While it may be a fact that Ext.P5 communication was issued to the petitioner without hearing him on his Rectification of Mistake Application, that by itself may not justify an interference with Ext.P5 communication in these proceedings under Art.226 of the Constitution of India. A reading of Ext.P4 document clearly reveals that, although styled as a Rectification of Mistake Application, it is in effect an application seeking a review of Ext.P3 order of the Assistant Commissioner. Under the Statute in question, there is no express power of review conferred on the Assistant Commissioner. As a statutory authority, he cannot be seen as possessing any inherent power of review either. Ext.P5 communication of the Assistant Commissioner, tha....... + More

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• 2020 (9) TMI 257 - GUJARAT HIGH COURT
  
  Applicability of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 to the cases involving confiscation and redemption fine - Rejection of the declaration made by the petitioners by the Designated Committee formed under SVLDRS HELD THAT:- The Coordinate Bench of this Court has done analysis in detail of the provisions of the Scheme in para 6 to 9 of the order dated 24.12.2019 and has also discussed the frequently asked questions (FAQs) and flyers issued by the Central Board of Indirect Taxes as well as the letter dated 20.12.2019 in para-10 to 12 to form a prima-facie opinion that when the Board has issued FAQs, press notes and flyers stating that the scheme grants waiver of interest, fine and penalty, then the scheme would be relatable to redemption fine also, because there is no other fine which is contemplated under the Act coupled....... + More

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• 2020 (9) TMI 79 - MADRAS HIGH COURT
  
  Jurisdiction - appropriate forum - Striking down of Rule 96 ZQ of the Central Excise Rules - applicability if same in the facts of present case - HELD THAT:- We are not inclined to entertain these submissions unless such submissions have been first raised before the learned Tribunal and the same have been dealt with by the Tribunal in appropriate manner by reasoned order thereon. Though the learned counsel for the respondent Assessee also raised a plea before us that the Revenue stakes involved in the present case are below the prescribed monetary limit as per the latest litigation policy of Revenue Department, we are not inclined to consider the same at this stage. Appeal dismissed - decided against Revenue.

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• 2020 (9) TMI 6 - GAUHATI HIGH COURT
  
  Exemption of education cess & secondary and higher education cess - Area Based Exemption availed - whether in view of the exemption granted to the excise duty the petitioner would also be entitled to an exemption to the payment of education cess & secondary and higher education cess? HELD THAT:- By the order dated 13.02.2019 of the Assistant Commissioner, Excise, GST and Central Excise, certain amounts were sanctioned for being refunded to the petitioner and accordingly the refunds were given effect. Subsequent thereto, the Supreme Court in its pronouncement in Unicorn Industries vs. Union of India and others reports [2019 (12) TMI 286 - SUPREME COURT ] has held that In view of the subsequent judgment of the Supreme Court in Unicorn Industries (supra) the respondent authorities had issued the demand cum show cause notice dated 09........ + More

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• 2020 (8) TMI 738 - GAUHATI HIGH COURT
  
  Exemption on Education Cess and Secondary and Higher Education Cess - area based exemption availed - whether in view of the exemption granted to the excise duty the petitioner would also be entitled to an exemption to the payment of education cess & secondary and higher education cess? - HELD THAT:- The said question was decided by the Supreme Court in its pronouncement in M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT] wherein in paragraph 27 it was held that the appellants therein were entitled to refund of education cess and higher education cess which was paid along with the excise duty once the excise duty itself was exempted from levy. The demand cum show-cause notice dated 02.06.2020 is assailed in this writ petition on the ground that the condition precedent....... + More

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• 2020 (8) TMI 737 - MADRAS HIGH COURT
  
  Refusal to accept the surrender of the petitioner's Central Excise Registration Certificate - stand taken by the department is that since there is an enforceable demand against the petitioner's company and there is no provision in the Central Excise Act to accept the surrender, the petitioner's request should not be granted - HELD THAT:- It is admitted that there are no enforceable dues as against the petitioner herein and as such, the respondents may not be justified in refusing the acceptance of the surrender of the petitioner's Central Excise Registration Certificate on the ground that there were demands pending. Even otherwise, it is brought to the notice of this Court that the appeal before CESTAT was closed on 09.12.2017 and the further appeal before the Hon'ble Supreme Court was also disposed of on 08.07.2019. A....... + More

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• 2020 (8) TMI 694 - MADRAS HIGH COURT
  
  Prosecution of accused - separate identity of Company/Firm and its owner - contention of the petitioner is that as per Section 9AA of the Central Excise Act, it is mandatory requirement to implead the company/firm as an accused - evasion of excise duty - HELD THAT:- A1 firm had been represented by A2, who was the Managing partner, till his death. After his death, the entire confusion arouse. Though this petitioner is no way affected by summoning Ms. Saradha Subhas to be a representative for M/s. Print Wraps firm/A1, the petitioner opposed the petition in Crl.M.P.No.2158/2011 and the trial Court dismissed the same by order dated 20.06.2013. This Court, by order dated 29.09.2011 in CRL.R.C.No.1256/2003 observed that there is no impediment in proceeding further in the trial under Section 305(3) Cr.P.C. As per Section 63 of Cr.P.C., how summo....... + More

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• 2020 (8) TMI 608 - GAUHATI HIGH COURT
  
  Exemption from education cess & secondary and higher education cess - area based exemption availed - whether in view of the exemption granted to the excise duty the petitioner would also be entitled to an exemption to the payment of education cess & secondary and higher education cess? - HELD THAT:- The said question was decided by the Supreme Court in its pronouncement in SRD Nutrients Pvt. Ltd. Vs. Commissioner of Central Excise, Guwahati [2017 (11) TMI 655 - SUPREME COURT] wherein it was held that the appellants therein were entitled to refund of education cess and higher education cess which was paid along with the excise duty once the excise duty itself was exempted from levy. The demand cum show-cause notice dated 09.06.2020 is assailed in this writ petition on the ground that the condition precedent to invoke the power unde....... + More

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• 2020 (8) TMI 294 - UTTARAKHAND HIGH COURT
  
  Waiver of pre-deposit - undue hardship to make the deposit - Section 35F of the Central Excise Act, 1944 - HELD THAT:- As per Section 35F of CEA, there was no compulsion for payment of the pre-deposit at the relevant point of time. The provision prescribed that, if the appellant was to make out a case of undue hardship, pre-deposit could be waived keeping in mind the interest of the Revenue. Undisputedly, the assessee has stopped production from the year 2013. Ever since then, there is neither production, nor generation of any income. In the absence of any income being generated, we are of the view that it would cause undue hardship if the appellant is directed to make the pre-deposit. Therefore, the same constitutes a hardship to the appellant. Payment of 7½% of the duty demanded - HELD THAT:- This would roughly work out to be abo....... + More

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• 2020 (8) TMI 293 - GAUHATI HIGH COURT
  
  Exemption of Education Cess & Secondary and Higher Education Cess - whether in view of the exemption granted to the excise duty the petitioner would also be entitled to an exemption to the payment of Education Cess & Secondary and Higher Education Cess? - HELD THAT:- The said question was decided by the Supreme Court inits pronouncement in SRD Nutrients Pvt. Ltd. Vs. Commissioner of Central Excise, Guwahati [2017 (11) TMI 655 - SUPREME COURT ] wherein in paragraph 27 of the said judgment it was held that the appellants therein were entitled to refund of education cess and higher education cess which was paid along withthe excise duty once the excise duty itself was exempted from levy. In view of the subsequent judgment of the Supreme Court in Unicorn Industries [2019 (12) TMI 286 - SUPREME COURT ] the respondent authorities had is....... + More

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• 2020 (8) TMI 292 - KARNATAKA HIGH COURT
  
  Applicability of instructions F.No.390/Misc/116/2017-JC dated 22.08.2019 to pending appeals - monetary limit fixed for filing appeals - HELD THAT:- The Instructions having been made applicable to pending appeals also. In light of the monetary limit having been fixed by the Department indicating that, where the value of subject matter in dispute being less than One Crore, such appeals cannot be prosecuted and in view of the fact that said issues having attained finality before this Court, entertaining of these appeals would be in violation of conditions stipulated under the Instructions F.No.390/Misc/116/2017-JC dated 22.08.2019, issued by Central Board of Indirect Taxes and Customs. Appeal dismissed as not maintainable.

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• 2020 (8) TMI 225 - MADRAS HIGH COURT
  
  Compliance with the clarification issued by the Central Board of Excise and Customs on 10.11.2014 bearing reference in F.No.6/03/2013/CX.1 - levy of excise duty on Fixed Facility Charges (FFC) and Minimum Take or Pay Charges (MTOP) - CENVAT Credit on purchase of Gas - HELD THAT:- The 1st, 2nd, and the 4th respondent being officers under the Central Board of Excise and Customs are bound by its clarification dated 10.11.2014 bearing reference F.No.6/03/2013/CX.1. They cannot act contrary to the clarification issued by the Central Board of Excise and Customs particularly in the light of the fact that the clarification has been given pursuant to directions of the Bombay High Court - Even otherwise, if the Minimum Take or Pay Charges (MTOP charges) and the proportionate Fixed Facility Charges (FFC) were built into the transaction value of the ....... + More

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• 2020 (8) TMI 138 - MADRAS HIGH COURT
  
  Effect of amendment in the notification - Scope of the term "Substitute" - Refund of Cenvat credit - time limitation - relevant date for filing refund claim - one year from the relevant date and the relevant date would be the date of receipt of payment in convertible foreign exchange with regard to the export - whether the reckoning of the relevant period brought about through the notification No.14/16 dated 01.03.2016 by substitution would be prospective or retrospective in nature? HELD THAT:- Originally, Notification No.27/12 dated 18.06.2012 prescribed the procedure for filing the refund claims, by which, the claimant was required to file the application before the expiry of period specified in Section 11B of the Central Excise Act. Clause 3(b) of the Notification No.27/12 dated 18.06.2012 came to be “substituted”....... + More

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• 2020 (8) TMI 110 - JHARKHAND HIGH COURT
  
  Maintainability of appeal - non-compliance of pre-deposit under section 35F of Central Excise Act, 1944 - HELD THAT:- The petitioners have not been able to make out any exceptional grounds of undue hardship for waiver of mandatory pre-deposit under section 35-F of C.E.A, 1944, as amended with effect from 06th August 2014 in exercise of writ jurisdiction. Petition dismissed.

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• 2020 (8) TMI 57 - MADRAS HIGH COURT
  
  Jurisdiction - power to remand the case to authority for fresh adjudication after taking additional evidence - CENVAT Credit - credit for the same services allowed for previous years/period - input services - Manpower, Fabrication & Erection services - WCT SERTX services - Repairs & Maintenance service - interpretation of definition of input services - initiation of Recovery Proceedings on completely wrong implication of law - HELD THAT:- The assessee having lost the opportunities before the three authorities below, namely the Assessing Authority, the Commissioner of Central Excise (Appeals) as well as Tribunal, all of them being fact finding body and who could have allowed such evidence to be brought on record by the assessee to examine the claim of CENVAT Credit of the assessee on merits, the only submission which has impressed ....... + More

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• 2020 (7) TMI 699 - MADRAS HIGH COURT
  
  Maintainability of application - availability of alternative remedy - Principle sof natural justice - opportunity to cross examine 50 witnesses not granted, whom the appellant/assessee intended to cross examine during the course of assessment proceedings before the learned Commissioner - HELD THAT:- Since the learned single Judge has only relegated the appellant to the effective alternative remedy, we are inclined to examine the details of the merits of the contentions raised by the learned counsel for the Assessee as to whether opportunity to cross examine the witnesses was required to be given in the present case or not or whether sufficient opportunity was already given to the Assessee or not. We cannot appreciate short circuiting the normal procedure of appellate forums to be availed by the Assessee in such cases. Merely because there....... + More

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• 2020 (7) TMI 652 - GUJARAT HIGH COURT
  
  Principles of unjust enrichment - Refund alongwith interest - Assistant Commissioner passed order holding that the petitioner was although entitled for refund, but directed that the said amount may be credited in the account of the “Consumer Welfare Fund” instead of crediting it in the account of the petitioner - HELD THAT:- The presence of the Assistant Commissioner is directed, who had passed the order not refunding the amount to the petitioner, but on the insistence of Mr. Bhatt that better sense may prevail on the officers and amount would be fully paid to the petitioner within 24 hours, we adjourn this matter for day after tomorrow i.e. 29.07.2020. We further provide that the interest of 6% would be payable up to the date when the amount was credited in the account of the Consumer Welfare Fund. However, after that date th....... + More

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• 2020 (7) TMI 637 - GAUHATI HIGH COURT
  
  Refund of Excise Duty - Area Based Exemption - It is the case of the petitioner that there was an application of the petitioner dated 27.05.2008 claiming that under the notification in force, the petitioner is entitled to an exemption/refund from excise duty up to 65% and thereafter several other applications were submitted to the department by the petitioner on the same claim but in respect of other assessment years - HELD THAT:- The respondents are directed in the Excise Department to give a consideration to on the applications of the petitioner and pass reasoned orders on the same. The requirement of passing the reasoned order be done within a period of three months from the date of receipt of a certified copy of this order. Further, till such consideration are made and the reasoned orders passed, the authorities in the Excise department shall not encash the bank guarantee given by the petitioner in respect of 100% of the excise duty paid by them. Petition disposed off.

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