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- 2020 (4) TMI 199
Jurisdiction - power to issue SCN - Refund of unutilised CENVAT Credit - inclusion of sales to 100% EOUs - HELD THAT:- Both the Asst. Commissioner and Commissioner (Appeals) are fully competent to decide the show cause notice not only in terms of CENVAT Credit Rules 2004 but also in terms of the provisions of CGST Act 2017. At this stage, there are no inconsistency in the order of the first appellate authority inasmuch as he has followed the law as it applied during the relevant period - Also, the appellant has so far not been put to any disadvantage because the show cause notice proposing recovery of excess refund is yet to be adjudicated upon by the Asst. Commissioner. Appeal dismissed - decided against appellant.
- 2020 (4) TMI 198
CENVAT Credit - input services - outward transportation of finished goods from the factory to their buyer’s premises - April 2011 to June 2017 - HELD THAT:- Appellant has produced sample invoice / purchase orders to contend that they have paid Central Excise duty after including freight charges; that it is also argued by her that since the goods have been delivered at the buyer’s premises without collecting freight charges from the customer and the same is borne by the appellant, they are eligible for credit of service tax paid on the freight charges upto the buyer’s premises - To peruse the documents relating to the issue under consideration it is best to remit the case back to the adjudicating authority who shall look into the documents furnished by the appellant to determine the place of removal. If the appellant has ....... + More
- 2020 (4) TMI 197
Bar on utilization of Cenvat credit - Rule 8(3A) of Central Excise Rules (CER), 2002 - denial on the ground that they had not paid the duty in time and thereby forfeited their right to use Cenvat credit - HELD THAT:- A plain reading of Rule 8(3A) of CER, 2002, makes it clear that it applies to such cases where the assessee had defaulted in payment of excise duty beyond 30 days from the due date - This does not apply to the present case because in their case they have already paid as duty even before the audit whatever they declared as payable. The audit actually found that some additional amounts were payable over and above what was declared in their ER returns as duty. Rule 8(3A) does not apply to every case where the department, during the scrutiny of returns, during audit or during investigation finds any additional amount is payable a....... + More
- 2020 (4) TMI 196
Reversal of CENVAT Credit - actual consumption of inputs used for manufacture of dutiable goods or used for manufacture of exempted goods which are exported - non-maintenance of separate records - requirement to reverse 6% of the value of exempted goods - HELD THAT:- In this present case, the appellant is not taking any CENVAT credit at all on the invoices at the time of receipt of inputs. There is a specific input output co-relation for every batch of every drug known as consumption coefficient according to which the quantity of inputs which have gone into the manufacture of that particular batch of the particular drug can be ascertained. The appellant has been availing CENVAT credit only on the proportionate amount of inputs which are gone into manufacture of either dutiable goods or in the manufacture of exempted goods which are export....... + More
- 2020 (4) TMI 195
Valuation - allowability of deductions - main grievance of the revenue against the order of the first appellate authority is that the assessee has not submitted CA certificate along with necessary documents to prove that they have passed on the discounts claimed to the buyers - HELD THAT:- The Commissioner (Appeals) has allowed the discounts on the basis of the invoices, credit notes and equalised octroi/ entry taxes - On identical issue, this bench had upheld the order of the Commissioner (Appeals) for earlier periods in respect of the same respondents in COMMISSIONER OF CENTRAL TAX MEDCHAL - GST VERSUS ACE TYRES LTD., UNIT - II, EXEL RUBBER LTD. [2019 (11) TMI 377 - CESTAT HYDERABAD]. This decision has, so far not been overturned or set aside by any higher judicial forum. Therefore, the decision is binding on this bench. The miscellaneous application filed by the revenue is dismissed as infructuous and the impugned orders are upheld - Appeal dismissed - decided against Revenue.
- 2020 (4) TMI 194
CENVAT credit on inputs and input services used in manufacture - Activity amounted to manufacture - ‘roof bolts’ and ‘W straps’ prepared and cleared by the respondents for use in mines - Valuation - price variation clause - HELD THAT:- dispute whether the activity undertaken by the appellant amounts to manufacture or not the same has been settled by this Tribunal vide an order [2010 (2) TMI 395 - CESTAT, BANGALORE] The activity undertaken by the appellant amounts to manufacture, therefore, in terms of Rule 3 of CENVAT Credit Rules 2004, the appellant is entitled to take CENVAT credit on inputs and input services used in manufacturing of the said excisable goods. Admittedly, the said benefit has not been granted by the adjudicating authority - Further, the appellant has been able to produce the tender document as we....... + More
- 2020 (4) TMI 193
Imposition of penalty u/s 209A of the erstwhile Central Excise Rules 1944 in remand proceedings - case of appellant is that in remand proceedings against the main party, penalties on the appellants cannot be imposed - HELD THAT:- It is a fact on record that the adjudicating authority vide his order dated 29.10.2004 dropped the penalty proposed in the show-cause notice against the appellants. The order of dropping penalty was never challenged in any subsequent proceedings.. Therefore, in remand proceedings for third party, penalty cannot be imposed on the appellant. There are no merit in the order of imposing penalties on the appellant - appeal allowed - decided in favor of appellant.
- 2020 (4) TMI 178
Refund of Interest on interest and penalty component deposited earlier - denial on the ground that Section 11BB of the Central Excise Act, 1944 allows interest only on refund of duty - HELD THAT:- It is not in dispute that the appellant had deposited the duty for ₹ 33,32,327/- i.e. the entire amount of duty, interest and penalty confirmed against the appellant by the original adjudicating authority. The appellant chose to deposit ₹ 5.00 lakhs initially before the Commissioner (Appeals) and later before the CESTAT, the remaining amount in compliance with Section 35F of the Central Excise Act, 1944 - On a plain reading of the provision of Section 35FF, it is clear that the appellant was required to deposit entire amount of duty, interest and penalty while pursuing their appeal before the first appellate authority or CESTAT. Sect....... + More
- 2020 (4) TMI 144
CENVAT Credit - inputs/capital goods - HR Plates/MS Plates/ Cheq. Plates etc. - denial on the ground that the said goods were used for supporting of structures and as such, cannot be considered as either inputs or capital goods for availment of the Cenvat Credit - HELD THAT:- The period in dispute is from 01.09.2011 to 31.08.2012. This Bench of the Tribunal, in the case of the appellant itself, on the similar set of facts, for the period 01.09.2012 to 31.07.2013 in M/S JSW STEEL COATED PRODUCTS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2019 (2) TMI 6 - CESTAT MUMBAI] has allowed the cenvat benefit on the disputed goods. The issue arising out of the present dispute is no more open for any debate, there are no merits in the order passed by the Ld. Commissioner (Appeals) in upholding rejection of CENVAT benefit of the appellant - appeal allowed - decided in favor of appellant.
- 2020 (4) TMI 73
Extended period of limitation - imposition of penalty - Non inclusion of value of Hummali/ Tulaicharges in the assessable value - Non inclusion of amount charged on the basis of debit notes in the assessable value - Cenvat credit of Customs Education cess and Customs Secondary & Higher Education Cess - Cenvat Credit on outward freight - Cenvat Credit on invoice after six months of the issue of invoice. Cenvat credit - freight from the factory to the buyers premises for F.O.R. supply - HELD THAT:- The issue has been settled only by the Apex Court judgement in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] wherein it has been held that the cenvat credit on outward freight from the place of removal was not admissible - though the demand alongwith interest is sustainable on this....... + More
- 2020 (4) TMI 72
CENVAT Credit - input services - GTA service - Manpower service - legal service received by the appellant - period January, 2016 to September, 2016 - HELD THAT:- The appellant company admittedly is having only one factory and their Head Office is located at Delhi, having a common registration under centralised registration scheme. There is no question involved of distribution and thus, the appellant is not required to be registered as an ISD for its Head Office - Admittedly, services of GTA and Manpower Supply Agency Service have been received only for the sake of accounting at Head Office, there can be no disallowance. In view of the common registration number under the centralised registration scheme, the impugned order is not maintainable and also suffers from mistake of facts and mistake of law. Appeal allowed - decided in favor of appellant.
- 2020 (4) TMI 71
CENVAT Credit - duty paying invoices - invoices issued but service tax on such invoices not discharged - Rule 9(1)(bb) of Cenvat credit Rules, 2004 - HELD THAT:- Undisputed facts is that though the service provider at the time of issuing of invoices did not pay the service tax but subsequently they discharged the service tax and no proceeding was initiated against the service provider, the entire matter was closed. Since, there is no SCN issued to the service provider nor any adjudication order was passed, it cannot be said that there is suppression of facts on the part of the service provider. The suppression of facts needs to be established only by way of issuing the SCN invoking proviso to Section 73 (1) and thereafter, by the adjudication if the suppression of facts is established. In the present case no such exercise was carried out,....... + More
- 2020 (4) TMI 40
CENVAT credit - waste and scrap - plastic drums - sale of plastic drums as waste and scrap - Commissioner (Appeals) placed reliance on Board’s Circular No. 1027/15/2016-CX. dated 25.4.2016 which treats Bagasse as an exempted good for the purpose of reversal of credit of input in terms of rule 6 of the CENVAT Credit Rules 2004. - HELD THAT:- The Board’s Circular No. 1027/15/2016-CX. dated 25.4.2016, strongly relied upon by the Commissioner (Appeals) stands declared ultra virus in the case of M/S BALRAMPUR CHINI MILLS LTD. THROUGH ITS GENERAL MANAGER VERSUS UNION OF INDIA, MINISTRY OF FINANCE DEPARTMENT OF REVENUE [2019 (5) TMI 972 - ALLAHABAD HIGH COURT], where it was held that In absence of Bagasse being a manufactured final product, the obligation of reversal of CENVAT Credit under Rule (1) of the CENVAT Credit Rules, 2004 is not attracted - As such, nothing survives in the Revenue’s decision. Appeal allowed - decided in favor of appellant.
- 2020 (4) TMI 39
Refund of closing balance of PLA - bar on utilization of deposits in PLA - whether the balance lying in the assessee’s PLA, which became non-usable with effect from 1 July, 2017 with the introduction of GST regime, is required to be refunded to them or not? HELD THAT:- Admittedly, in the present case such deposits are made by the appellant for utilization in future. In case the same could not be used on account of introduction of GST and there being no transitional provision for transfer of such PLA deposit, the same would be refundable to the appellant. The lower authorities have taken the deposit of the same as the relevant date and since the application stands filed after a period of one year from the date of deposit, they have rejected the same on the ground of limitation. Apart from the fact that limitation provisions are not a....... + More
- 2020 (4) TMI 38
Levy of Excise Duty - delivery charges of the liquid gas - denial of Cenavt credit availed on ISD invoices - HELD THAT:- The Commissioner, in the impugned order, has decided that the inclusion of delivery charges in the assessable value of service in favour of the appellant. The computation of the Cenvat credit in respect of five services, which is disputed need to be re-quantified by the adjudicating authority on the basis of available documents required for such credit. For claim of benefit of the proportionate Cenvat credit, same is required to be looked into afresh in terms of their eligibility and calculation. The matter is remanded to the adjudicating authority to re-compute the demand after hearing the appellant within three months from the receipt of the order.
- 2020 (4) TMI 5
Prohibition on institution of suits or continuation of pending suits or proceedings against the Corporate Debtor - HELD THAT:- Ld. NCLT has specifically prohibited for institution of fresh suits or continuation of pending suits or proceedings in the judicial forum including the Tribunal. In view of the fact that the petition filed by the petitioner, the appellants herein, was admitted by the Ld. NCLT, we are of the considered opinion that the present appeals filed by the appellants cannot be proceeded further till final decision on the issue is rendered by Ld. NCLT - matter adjourned sine die.
- 2020 (3) TMI 1184
Valuation - 3MM Stranded Ply wire - related party transaction - applicability of Section 4 (1) (b) of CEA, 1944 - to be valued at 110% of the cost of production of such goods as per CAS-4 as envisaged in Rule 10 (a) read with Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 or not? - HELD THAT:- The authorities below have concluded that valuation under Section 4 (1) (b) has to be adopted and not the transaction value mainly on account of the fact that the six units are inter-connected undertakings. However, from the Order-in-Original or the impugned order there is no discussion how the buyers are related persons. As per Rule 10 (a) of the Valuation Rules only if the buyers and seller are related in the manner specified under the sub-clause (ii), (iii), (iv) of Clause-(b) of Sub-section (3) of ....... + More
- 2020 (3) TMI 1181
Imposition of penalty - irregularly availed CENVAT Credit - credit availed on the same invoice twice in the month of June 2014 - It is contended that, they had no intention to evade payment of Cenvat credit and they had already reversed the amounts on being pointed out by the department - HELD THAT:- There are no doubt that the appellant had wrongly availed Cenvat credit twice in the same invoice. It is not the case where one could have a doubt about the admissibility of such Cenvat credit. Evidently, nobody can legitimately claim Cenvat credit twice on one invoice. Similarly, with respect to the capital goods removed after use, they have reversed inadequate amount of Cenvat credit which remains undisputed. The intention is self evident and the violation of Act and Rules are undisputed - Appeal dismissed - decided against appellant.
- 2020 (3) TMI 1096
Recovery of dues - sick company - Wrongful adjustment of sanctioned refund - demand of interest - relevant period starting from 19 March, 2017 (expiry of three months from the date of the order dated 20 December, 2016 passed by the Tribunal) till the date of payment of refund amount or not - HELD THAT:- It is not possible to accept this submission of the learned Authorized Representative of the Department. As noticed by the Commissioner (Appeals), the dues pertaining to the orders dated 18 October 2001 and 23 February 2001 confirming the demands, were not disclosed by the Department or the earlier management to the BIFR and the same were not considered in the scheme sanctioned by BIFR. The BIFR had also by order dated 22 May, 2002 protected the management from recovery of dues which were not disclosed by the old management or not provided....... + More
- 2020 (3) TMI 1052
CENVAT Credit - duty paying invoices - rejection for the reason that invoices of input service bear handwritten serial number - HELD THAT:- In the appellant’s own earlier case a show cause notice F.no. V(CH.70) 3-31/DEM/10- 11 dated 30/05/2011 was issued on the same issue that whether the appellant is entitled for Cenvat Credit on the invoice issued by the service provider which bears handwritten serial number. That case was travelled up to this Tribunal in appeal no. E/11069/2015. This Tribunal in KRUPA TRADING COMPANY VERSUS C.C.E & S.T. -VALSAD [2020 (2) TMI 293 - CESTAT AHMEDABAD] decided the matter in appellant’s favour. The reason for denial of the Cenvat Credit in the above decision of the Tribunal and in the present case is absolutely identical. Appeal allowed - decided in favor of appellant.