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- 2021 (4) TMI 514 - CESTAT CHENNAI
Refund of input tax credit - input service or not - consent fees paid to Tamil Nadu Pollution Control Board (TNPCB) under reverse charge mechanism - requirement of issuance of SCN u/s 11B of CEA - HELD THAT:- The Order-in-Original has been passed undoubtedly without the issuance of Show Cause Notice. The Commissioner (Appeals) in the impugned Order has also observed that one Shri P. Veera Kumar appeared before the Adjudicating Authority, but however, both the authorities below are silent as to whether the said person, who is alleged to have been heard, was well-versed with the law and the change in law and whether the said person was authorized by the appellant-company to argue before the authorities. It is the basic tenet of our Constitution that “justice should not only be done, but should manifestly and undoubtedly be seen to be ....... + More
- 2021 (4) TMI 513 - CESTAT CHANDIGARH
Levy of penalty - CENVAT Credit - goods not supplied only invoices were moved - allegation is that goods were never transported and the goods never crossed the Shambhu Border - Lack of investigation on the part of Revenue - HELD THAT:- In this case, it is a fact on record that during the course of investigation, no shortage or excess of the goods were found in the premises of both the appellants. In that circumstance, duty cast on the Revenue to ascertain the fact if the appellant no.1 has not received the goods, then from where, they procured the goods and used the same for manufacturing of dutiable goods which have been cleared on payment of duty. Further, it was also the duty of the Revenue to find out where M/s Mas Equipments Pvt Ltd has cleared the goods without payment of duty. This is lacking in the investigation which gives benefi....... + More
- 2021 (4) TMI 512 - CESTAT AHMEDABAD
Quantification of CENVAT Credit reversed - common Input/Input Services used in exempted goods/exempted services and dutiable goods/taxable services - revenue has issued Show Cause Notices on the monthly reversal as well as on the yearly reversal, while appellant is calculating the amount on provisional basis month wise and also final payment on the completion of the financial year - Rule 6(3) of CCR - HELD THAT:- There is indeed serious error in calculation of the amount to be paid under Rule 6(3). As regard the terms “total Cenvat Credit” to be considered for the formula as provided under Rule 6 (3A) - It also appears that there is a duplication of demand in as much as Show Cause Notice issued on monthly reversal as well as on yearly reversal. The Adjudicating Authority has also not properly considered the “total Cenvat....... + More
- 2021 (4) TMI 496 - CESTAT NEW DELHI
Clandestine manufacture and removal - copper wire ingots - entire documents on which the demand has been confirmed, recovered from the factory premises of M/s Kaycee Electricals and from the residential premises of its Partners - corroborative evidences or not - third party evidences - HELD THAT:- Apparently and admittedly, no search was conducted in premises of any of the present appellants. No physical verification of the stock of present appellants was conducted. Both the show cause notices, the initial order-in-original and the impugned order under challenge are based merely upon the loose parchies and other handwritten documents as was recovered from the premises of M/s Kaycee Electricals and also on the basis of statements of the Supervisor as well as Partner that too of M/s Kaycee Electricals itself. The entire evidence is therefor....... + More
- 2021 (4) TMI 425 - CESTAT AHMEDABAD
CENVAT Credit - input services - Air Travel Agent service - Club or Association service - Event Management service - Fashion Designing service - Franchise Service - Interior Decorator service - Outdoor Catering service - Rail Travel Agent service - Renting on immovable property service - Rent-a-cab Operator service - Tour Operator service - Travel Agent Services - credit denied on the ground that no evidence was produced by the appellant to prove that the services was availed by the appellant and also on the ground that there is no nexus between the services with the manufacture and clearance of the goods or for their business activity. HELD THAT:- All the services per se are prima facie input services held in various judgments, however, the admissibility of Cenvat credit on these services can be decided on the basis that whether the serv....... + More
- 2021 (4) TMI 400 - CESTAT NEW DELHI
CENVAT Credit - input services - Membership of Club Service - Health Insurance Service - credit denied holding that both the services are specifically excluded from the definition of input service, as stands amended, w.e.f. 1 July 2012 - extended period of limitation - HELD THAT:- Both these services are neither for the personal use of the appellant nor for consumption of any one employee, but for the welfare of the employee at large. Tribunal Hyderabad in the case of M/S HYDUS TECHNOLOGIES INDIA PVT LTD. VERSUS CCE, C & ST, HYDERABAD-II [2017 (2) TMI 538 - CESTAT HYDERABAD] has held that the group gratuity scheme for employees is a service for the welfare of the employees at large services stated in clause (c) in the input service definition are held to be excluded only when such services are used primarily for personal use or consum....... + More
- 2021 (4) TMI 391 - CESTAT BANGALORE
CENVAT Credit - GTA Services - Freight charges - goods cleared from the factory gate to the place of buyer - place of removal - HELD THAT:- On an identical issue, this Tribunal in the case of BHARAT FRITZ WERNER LTD. VERSUS COMMISSIONER OF CENTRAL TAX, BANGALORE NORTH WEST COMMISSIONERATE [2019 (11) TMI 1050 - CESTAT BANGALORE] has remanded the case back to the original authority to pass a fresh order after examining various documents for the disputed period. The case remanded back to the original authority to pass a fresh order after examining the various documents for the disputed period in the light of the Circular issued by the Board dated 08/06/2018 - appeal allowed by way of remand.
- 2021 (4) TMI 384 - CESTAT NEW DELHI
CENVAT Credit - inputs/capital goods - corrugated profile sheets - prefabricated modular - cealing panel/wall panel/PVC conduits/wall to ceiling coving/wall to wall coving/single doors/double doors/locks etc., - these were used for creating ‘Clean Room’ and Clean room is required for maintaining temperature control and ‘RH’ control - HELD THAT:- Admittedly, the appellant have used the disputed inputs for fabrication of clean room, which is essential for manufacture of their dutiable goods, as such clean room is necessary for maintaining proper temperature and hygiene as well as keeping the RH factor in control, and without it manufacture of dutiable medicines is not possible - Further, under Rule 2(k) of CCR, inputs means, “all goods used in the factory of the manufacturer of final products”. The appellant is entitled to cenvat credit on the items in dispute as inputs - Appeal allowed - decided in favor of appellant.
- 2021 (4) TMI 382 - CESTAT NEW DELHI
Clandestine procurement and removal - MS ingots - TMT Bars, flats, challans etc. - shoratge of goods - M.T. M.S. Ingots - MT TMT Bar - MT Sponge Iron - challenge mainly based on reliance upon third party evidence - evidentiary value of the third party evidence - HELD THAT:- There is no other evidence or document in the form of stock verification of the raw-material of the appellant and the material supplied to M/s. PIL nor any evidence about usage of any transportation by the appellants for transporting the alleged quantity of raw-material to M/s.PIL. In absence thereof the documents recovered from M/s.PIL cannot be held against the appellant. It is well settled law that there has to be some concrete evidence which would show clandestine manufacture of goods, as was reiterated by Tribunal, Delhi in the case of C.C.E. & S.T. -RAIPUR VE....... + More
- 2021 (4) TMI 347 - CESTAT NEW DELHI
Suppression of production and clandestine removal - bars/ rods - MS Ingots - entire case is on the basis of wrong allegation based upon the documents recovered from third party - HELD THAT:- The documents recovered from the premises, based whereupon the show cause notice was issued, admittedly are in the form of loose parchies and in the form of hand written ledger book that too those got recovered from the premises of SSSRM. There appears no corroborative evidence to support those loose & handwritten documents. Nor any evidence to connect them to the alleged guilt of the appellant. The statement of appellant, Smt. Sunita Devi, was recovered in June, 2005. There appears no acknowledgement on her part about she being involved in the alleged collusion with SSSRM for the alleged clandestine removal except for the raw material to have bee....... + More
- 2021 (4) TMI 346 - CESTAT BANGALORE
CENVAT Credit - input services - outward transportation of goods from the factory/bulk terminal/depot to their customer’s premises - place of removal - case of Revenue is that the ‘place of removal’ will always be factory gate and the assessee is not entitled to cenvat credit on GTA up to the buyer’s premises - HELD THAT:- On an identical issue, this Tribunal in the case of BHARAT FRITZ WERNER LTD. VERSUS COMMISSIONER OF CENTRAL TAX, BANGALORE NORTH WEST COMMISSIONERATE [2019 (11) TMI 1050 - CESTAT BANGALORE] has remanded the case back to the original authority to pass a fresh order after examining various documents for the disputed period. The case remanded back to the original authority to pass a fresh order after examining the various documents for the disputed period - appeal allowed by way of remand.
- 2021 (4) TMI 122 - CESTAT NEW DELHI
CENVAT Credit - sale of discarded scrap, i.e. used empty drums and empty bags - applicability of Rule 6 (3) of Cenvat Credit Rules, 2004 - HELD THAT:- The perusal of Rule 6(3) makes it abundantly clear that Rule 6(3) is applicable only to the manufacturers that too those who manufacture two classes of the goods i.e. non-exempted and exempted goods. Apparently and admittedly the appellant herein is manufacturing only one kind of goods which is PP woven fabric. Admittedly the empty polythene bags of raw-material and the empty drums of power oil as have been cleared by the appellant, irrespective for consideration, are not the goods manufactured by the appellants. There has been an amendment in the Rule w.e.f. 01.03.2015 by virtue of Notification 06/2015 and the following explanation has been inserted - irrespective of the said amendment, sc....... + More
- 2021 (4) TMI 117 - CESTAT BANGALORE
100% EOU - Refund of unutilized Cenvat credit availed on inputs/input services - export of goods - appellant had not physically exported their goods but cleared the same to another EOU - physical export or not - HELD THAT:- In the present case, the appellant is a 100% EOU, which has admittedly supplied the goods to another EOU and filed refund claims under Rule 5 read with Notification No.27/2012 dt. 18/06/2012. Further it is found that the goods were supplied by the appellant to another EOU after coming into force of the amendment in Rule 5. Further I find that with the insertion of clause (1A) in Explanation 1 to Rule 5 came into force vide Notification No.6/2015-CE(NT) dt. 01/03/2015 whereby export goods means any goods which are to be taken out of India to a place outside India, which means that there has to be a physical export and t....... + More
- 2021 (3) TMI 1186 - CESTAT CHENNAI
Refund of amount paid in excess - rejection on the ground of time limitation - assessee was entitled to seek refund in the year 2006, but the assessee had chosen to seek refund only in the year 2019 - explanation B (ea) to Section 11 B of the Central Excise Act, 1944 - HELD THAT:- There are no hesitations in holding that the appellant’s rightful request for refund dated 21.12.2006 which is very much on the record of the Revenue has not at all had been acted upon or rather ignored deliberately and nowhere do I find any denial by the Revenue as to its existence. Hence, I do not subscribe to the reasons given in the impugned order which has only upheld the Order-in-Original for rejecting the refund claim. I also find that the above refund claim of the appellant is very much in order, within the prescribed time and therefore, the impugned order deserves to be set aside. Appeal allowed - decided in favor of appellant.
- 2021 (3) TMI 1116 - CESTAT BANGALORE
CENVAT Credit - input services - Erection, Commissioning and installation (crane Services) - Event Management Services - Management, Maintenance and Repair service - Auctioneer Service - Outdoor Catering service. Erection, Commissioning and installation (crane Services) - denial on the ground that the Credit availment does not relate to Erection, Commissioning and Installation of any specific capital goods - February 2013 - December 2015 - HELD THAT:- The appellants have availed the impugned services and use it in relation to manufacture and the appellant has been able to establish sufficient nexus with the manufacturing activity as far as cranes services are concerned which the Department has misunderstood as erection, commissioning and installation service - this service of hiring of crane has been held to be Input Service in a manufact....... + More
- 2021 (3) TMI 1115 - CESTAT AHMEDABAD
CENVAT Credit - input services - Outward Transportation Service for clearance of Excisable Goods by the appellant - HELD THAT:- From the invoice it can be seen that freight amount of ₹ 45,000 was charged by the appellant to their customers separately, the said amount of the freight was also not included in the assessable value - This fact is further fortified from the bifurcation of the Sale value given in the contract of TAMIL NADU LIVESTOCK DEVELOPMENT AGENCY - From the contract also it is clear that the freight is not included in the assessable value however, the same was separately charged to the customers. This is a very important aspect to decide the admissibility of the credit. It is clear that though the freight was included in the total invoice value however the same was not included in the assessable value of the excisable....... + More
- 2021 (3) TMI 1059 - CESTAT BANGALORE
CENVAT Credit - input services - activity of construction of road and storm water drain/civil work at tanker parking facility - denial on the ground that the same are not integral part of the manufacturing activity of the appellant - HELD THAT:- The period involved in the present case was prior to 1.4.2011 when the definition of input service had wide ambit as it included the words “activities relating to business”. Further, the words “activities relating to business” includes all the services which are commercially required for the purpose of carrying on business of manufacture or provider of output service because in the absence of these services it is difficult for the appellant to carry on his business activities. This issue has been considered by the Tribunal in the case of M/S. RAYMOND UCO DENIM PVT LTD VERSU....... + More
- 2021 (3) TMI 938 - CESTAT CHENNAI
Rejection of refund - Pre-deposit or receivable - principles of unjust enrichment - appellant had only furnished a Chartered Accountant certificate which is not a conclusive proof - HELD THAT:- There remains no doubt that any payment made during investigation would partake the character of pre-deposit, for which unjust enrichment would not apply. But a perusal of the impugned order i.e., the Order of the Commissioner (Appeals) dated 14.10.2019 makes it clear that the rejection of refund is upheld for want of verification from the appellant’s books as to the treatment given in subsequent years, as pointed out by the Learned Representative for the Revenue. On the one hand, the appellant claims that the amount paid is to be treated as pre-deposit for which unjust enrichment would not apply, but, on the other hand, fails to furnish the ....... + More
- 2021 (3) TMI 885 - CESTAT CHENNAI
Refund of Unutilised Credit in cash - section 142(6) of CGST Act, 2017 - applicability of Section 11B of CEA or Rule 5 of the CCR, 2004 - HELD THAT:- In the case on hand, the submissions of the Learned Advocate, both verbal as also in the synopsis filed on 05.03.2021 (paragraph 10), coupled with the refund claimed through various letters, only indicate that the appellant is essentially claiming refund under Section 142(6) of the C.G.S.T. Act, per se - To decide the issue of refund under said section, CESTAT is not having jurisdiction since it pertains to examination and interpretation of a claim under the C.G.S.T. Act and to decide the eligibility or otherwise of the claimant under the C.G.S.T. Act. It, however, appears that the appellant has an arguable case for refund under Central Excise Act, but since the claim is clearly under CGST Act, 2017 the jurisdiction over which is not vested with CESTAT, the present appeal is dismissed for want of jurisdiction.
- 2021 (3) TMI 884 - CESTAT CHENNAI
Refund claim - amount paid during the investigation - whether tantamounts to deposit under protest? - applicability of Section 11B of the Central Excise Act, 1944 - HELD THAT:- The undisputed fact that remains is that the refund is claimed as a consequence of CESTAT’s Final Order in AAR AAR METAL REFINERY VERSUS COMMISSIONER OF CENTRAL EXCISE, CHENNAI [2017 (8) TMI 1047 - CESTAT CHENNAI] and hence, it is not a normal refund claim. The legislature in its wisdom has inserted (ec) under Explanation (B) to Section 11B with effect from 11.05.2007 with a purpose, thereby carving out an exception from a normal refund claim. This according to me is in the nature of a special provision and hence, any claims made as a consequence of Appellate Order/(s) will have to pass through the rigours of (ec) ibid. When a specific provision is available ....... + More