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Central Excise - Tribunal - Case Laws
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- 2021 (7) TMI 953 - CESTAT NEW DELHI
Refund of unutilised Cenvat Credit in cash - Credit lying in the books of accounts at the time of closure of factory being 28.6.2017 - non-submission of reliable supporting documents related to refund claim - applicability of Rule 5 of CCR, 2004 - HELD THAT:- Reliance placed in the case of UNION OF INDIA VERSUS SLOVAK INDIA TRADING CO. PVT. LTD. [2006 (7) TMI 9 - KARNATAKA HIGH COURT] holding that the appellant is entitled to refund of the amount of Cenvat Credit lying in their Cenvat Credit account on closure of business - further it is held that the appellant is entitled to interest as per Rules, as per section 11BB of Central Excise Act, i.e. three months after the date of application till the date of grant of refund. Appeal allowed - decided in favor of appellant.
- 2021 (7) TMI 951 - CESTAT AHMEDABAD
Jurisdiction for passing adjudication order - duty/tax involved in the present case exceeds ₹ 2 crore - Circular No. 1049/37/2016-CX dated 29-Sep-2016 - HELD THAT:- Very same issue was decided in M/S PALAK DESIGNER DIAMOND JEWLLERY VERSUS UNION OF INDIA [2019 (8) TMI 714 - GUJARAT HIGH COURT] - The issue involved in the said judgment was whether the Order-In-Original in respect of the Central Excise matter passed by Joint Commissioner is legal and correct or since the amount involved is more than ₹ 2 Crores the competent authority to issue the Show Cause Notice and pass the adjudication order should be Commissioner, and it was held that it cannot be said that the Joint Commissioner had no jurisdiction to issue the Show Cause Notice and adjudicate the same. Following this principle in the present case also when there is a clear....... + More
- 2021 (7) TMI 908 - CESTAT MUMBAI
CENVAT Credit - inputs or not - menthol oil/flakes - Jurisdiction of supplier - sanctity of promulgation of such geographically delimited harbours of privilege - HELD THAT:- From the record of proceedings, it is found that the several independent arguments for setting aside the demand of duties, and the imposition of detriments, was disregarded by the adjudicating authority on the assurance of the finding of lateral jurisdiction on goods not having been supplied - It would, therefore, appear that the adjudicating authority was influenced entirely by the finding of non-manufacture on the part of the supplying units by the coordinate statutory functionary which ceases, owing to nullification by the coordinate bench of the Tribunal, to sustain the impugned order in the absence of any other limb. In the circumstances of these facts as well as....... + More
- 2021 (7) TMI 891 - CESTAT HYDERABAD
Clandestine Removal - reliability of statements - sufficiency of evidence or not - cross-examination of statements - persons failed to stand the earlier statements - principle of preponderance of probability - difference of opinion - Majority Decision - HELD THAT:- The two types of standards of proof applied in proceedings are ‘proof beyond reasonable doubt’ and ‘proof of preponderance of probability. The appreciation of evidence in either of these types of standards of proof differs depending on the facts involved. In a serious case such as evasion of duty by fraud, the degree of appreciation of evidence has to be higher than in a case of allegation of mere delay in payment of duty though in both cases the evidence has to be appreciated on the preponderance of probability. In adjudication proceedings, there may be facto....... + More
- 2021 (7) TMI 851 - CESTAT CHENNAI
Reversal of CENVAT Credit - spent wash and press mud - waste/exempt goods - common inputs used in manufacture/clearance of spent wash and press mud in terms of Rule 6(2) and Rule 6(3) of Cenvat Credit Rules, 2004 - HELD THAT:- The very same issue was considered by the Tribunal in the appellant’s own case M/S. BANNARI AMMAN SUGARS LTD. VERSUS THE COMMISSIONER OF G.S.T. & CENTRAL EXCISE, SALEM COMMISSIONERATE [2018 (11) TMI 1449 - CESTAT CHENNAI] where it was held that press mud does not fit into the definition of “exempted goods”, as defined under 2(d) of CCR because it is not an excisable good; nor can it be termed as a final product because it is not manufactured or produced from input or using input service. The demand cannot sustain and requires to be set aside - Appeal allowed - decided in favor of appellant.
- 2021 (7) TMI 850 - CESTAT CHENNAI
Rejection of Refund claim in cash of differential duty - SCN was not issued - principles of natural justice - Section 142 (3) of the C.G.S.T. Act, 2017 - 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 done”. The fundamental principle has ....... + More
- 2021 (7) TMI 811 - CESTAT KOLKATA
CENVAT Credit - common input services on trading activity / traded goods - non-maintenance of separate accounts under Rule 6(2) of Cenvat Credit Rules - non-filing of declaration as contemplated in Rule 6 (3A) - suppression of facts or not - extended period of limitation - HELD THAT:- The Tribunal in the case of Dalmia Bharat Sugar & Industries Ltd., vs. CCE [2017 (10) TMI 1027 - CESTAT NEW DELHI] has followed the decision in the case of Mercedes Benz India Pvt Ltd [2015 (8) TMI 24 - CESTAT MUMBAI], wherein it was observed that the Commissioner is not justified in insisting that appellant reverse cenvat credit in terms of Rule 6(3)(i) of Cenvat Credit Rules. The claim of the appellant is that they have already reversed on proportionate basis, the cenvat credit along with interest amount payable in terms of Rule 6(3A). However, the Dep....... + More
- 2021 (7) TMI 766 - CESTAT CHENNAI
Utilization of CENVAT Credit on Education Cess and Secondary & Higher Education Cess, for payment of Excise duty - period post amendment of Cenvat Credit Rules w.e.f. 01.03.2015 - penalty - HELD THAT:- The decision by the Hon’ble Delhi High Court in CELLULAR OPERATORS ASSOCIATION OF INDIA AND OTHERS VERSUS UNION OF INDIA AND ANOTHER [2018 (2) TMI 1264 - DELHI HIGH COURT] has analysed the issue whether Education Cess and Secondary & Higher Education Cess can be utilized for payment of service tax / excise duty after the introduction of amendments in Rules 3 (7) (b) of Cenvat Credit Rules,2004 by Notification No.12/2015-CE (NT) dt. 30.04.2015 - The demand raised under the SCN for recovery of the wrongly availed cenvat credit is legal and proper. Penalty - HELD THAT:- Taking into consideration that the issue is of interpretatio....... + More
- 2021 (7) TMI 705 - CESTAT CHANDIGARH
CENVAT Credit - credit denied on the premise as per N/N. 02/14-CE (N.T.) dt.20.1.2014, the appellant was not entitled to credit prior to the N/N. 01/10-CE dt.6.2.2010 - extended period of limitation - HELD THAT:- Reliance placed in the case of DHARMPAL SATYAPAL LTD. VERSUS COMMISSIONER OF C. EX., NOIDA [2016 (9) TMI 1389 - CESTAT ALLAHABAD], the appellant is entitled to take credit on the inputs. Similarly placed assessee was allowed the credit although against those orders, the appeals have been filed by the Revenue before the Commissioner (Appeals), in that circumstance, when the Revenue is having divergent views on the issue, the extended period of limitation is not applicable - Admittedly, in this case, the SCN has been issued by invoking the extended period of limitation, therefore, the denial of credit is barred by limitation. Appeal allowed - decided in favor of appellant.
- 2021 (7) TMI 682 - CESTAT KOLKATA
CENVAT Credit - duty paying documents - denial on the ground that the appellant company has availed CENVAT credit on the strength of fake invoices without actually receiving the goods in violation of the CENVAT Credit Rules, 2004 - demand based on statements made by the manufacturers and the Excise dealers - rejection of request for cross-examination of the persons whose statements have been relied upon - HELD THAT:- The entire proceedings have been initiated on the basis of statements made by the manufacturers and the Excise dealers which have been solely relied to conclude that the appellant has not received the goods. The appellants in the course of adjudication have been consistently demanding cross-examination of the witnesses whose statements have been heavily relied upon by the Department. The appellants have pleaded that the goods....... + More
- 2021 (7) TMI 662 - CESTAT AHMEDABAD
CENVAT Credit - input services - outward GTA services - sale of goods on FOR basis - price is inclusive of freight - HELD THAT:- The facts and documents related there to submitted by the learned Counsel shows that sale of goods is on FOR basis, the freight was paid and born in bond by the appellant. Sale price is inclusive of freight on which excise duty was charged. Similar issue decided in appellant's own case BANCO PRODUCTS INDIA LTD VERSUS C.C.E. & S.T. -VADODARA-I [2021 (3) TMI 507 - CESTAT AHMEDABAD] where it was held that the invoices clearly mentioned a condition that the sale is on FOR basis and risk upto the destination is covered. It is also not the case of the department that outward transit insurance was paid by the consignee. In this case it is clear that the sale is on FOR basis and sale invoices itself is a kind of....... + More
- 2021 (7) TMI 655 - CESTAT AHMEDABAD
Wrong Circular was mentioned - Board Circular No. 97/8/2007-ST was wrongly mentioned whereas the correct circular No. is 1065/4/2018-CX dated 08.06.2018 which needs to be corrected - HELD THAT:- There is an apparent error in mentioning the circular no. in para 4 of the order. Accordingly in place of Circular No. 97/8/2007-ST, Circular No. 1065/4/2018-CX dated 08.06.2018 is corrected and read accordingly. The error pointed out by the applicant stands corrected. ROM application allowed.
- 2021 (7) TMI 635 - CESTAT KOLKATA
CENVAT Credit - freight component in relation to transport of goods from non-taxable territory to India - as per the lower authorities the said service was exempted from levy of Service Tax during the period when such import of goods took place - appellant was not liable to pay the tax, but he paid erroneously - reverse charge mechanism - penalty - HELD THAT:- It is an admitted fact that the first Appellant was not liable to pay Service Tax on the transportation of goods by vessel services. However, the tax was paid and accordingly the Appellant had availed Cenvat credit of the same. The issue above is no longer res integra in view of the judgment of the Hon’ble Madras High court in the case of THE COMMISSIONER OF CENTRAL EXCISE, AND SERVICE TAX LARGE TAXPAYER UNIT VERSUS M/S TAMILNADU PETROPRODUCTS LTD, THE CUSTOMS EXCISE AND SERVI....... + More
- 2021 (7) TMI 632 - CESTAT AHMEDABAD
100% EOU - demand of excise duty on the raw grade oil - LOP, raw oil (not allowed for export) - demand on the ground that the respondent have wrongly availed benefit of Serial No. 20 of the Notification No. 23/2003-CE since raw oil cannot be considered as a mere waste even though it may be of no use to the Respondent but it is a main raw material used for manufacture of refined oil. Can the said raw oil be treated as if manufacture in a DTA Unit and can be cleared under exemption N/N. 4/2005-CE dated 01.03.2005 and predecessor N/N. 6/2002-CE dated 30.04.2003 as amended by N/N. 37/2003-CE dated 30.04.2003 which is applicable to a DTA Unit? HELD THAT:- From the remand order of the tribunal, this tribunal has given clear direction to the Learned adjudicating Commissioner that he shall consider the clearance of raw oil as if cleared by DTA un....... + More
- 2021 (7) TMI 611 - CESTAT BANGALORE
Refund of excess Excise Duty paid - erroneous adoption of higher price - denial on the ground that appellant has failed to prove payment of excess duty - documentary evidences not considered - violation of principles of natural justice - HELD THAT:- The appellant filed refund claim of the excess duty paid along with various documents in support of his claim but both the authorities have not examined the documents and the statements submitted by the appellant in support of their claim so much so the Chartered Accountant Certificate issued by the CA of the appellant as well as of the M/s Welspun Corp. Ltd have not been considered - The impugned order has simply observed that the appellant has failed to prove the payment of excess duty without considering the plethora of documentary evidences on record, the CA Certificate produced on record ....... + More
- 2021 (7) TMI 551 - CESTAT AHMEDABAD
CENVAT Credit - input services - Air Travel Services - Train Services - Courier Services - HELD THAT:- The issue of Cenvat Credit on Air Travel Services, Train Services and Courier Services has been settled in various judgments - reliance can be placed in the case of SEMCO ELECTRICAL (P.) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE [2009 (12) TMI 143 - CESTAT, MUMBAI] and JAYPEE REWA PLANT VERSUS COMMISSIONER OF C. EX., BHOPAL [2009 (7) TMI 488 - CESTAT, NEW DELHI]. Courier Agency Services - HELD THAT:- Reliance can be placed in the case of M/S. NANA UDYOG VERSUS COMMISSIONER OF CENTRAL EXCISE & ST., SURAT [2015 (2) TMI 433 - CESTAT AHMEDABAD] where it was held that CENVAT credit of service tax paid on Courier Services is admissible to the appellant. Credit allowed - appeal allowed - decided in favor of appellant.
- 2021 (7) TMI 457 - CESTAT BANGALORE
CENVAT Credit - failure to distribute credit on certain common input services and transition to GST - violation of Rule 7 of CENVAT Credit Rules, 2004 - denial of substantive right on the ground of procedural irregularity - extended period of limitation - revenue neutrality - HELD THAT:- In the present case, the learned Commissioner has confirmed the demand of CENVAT credit on the grounds that the appellant has failed to distribute the credit to its various units regarding common input service. The defence of the appellant that after the implementation of GST with effect from 01.07.2017, the appellants have taken single registration for all the 9 units working in the State of Karnataka in terms of Section 25 of the CGST Act, 2017. Further, it is found that the unutilized credit from ER-1 Returns and ST-3 Returns were transferred to Form G....... + More
- 2021 (7) TMI 370 - CESTAT CHENNAI
Refund of excess amount of Duty and interest paid - principles of unjust enrichment - direction to credit to Consumer Welfare Fund on the ground that the appellant had not proved that the incidence of Duty had not been passed on to the customers - HELD THAT:- The minimum/initial burden of proof stands discharged by the appellant upon production of documents in their support and its own undertaking. In the absence of any findings to the contrary, the onus shifts to the Revenue and the Revenue has miserably failed to discharge its onus. Therefore, the presumption as to the preponderance of probabilities is heavily stacked against the Revenue. Law has prescribed Accounting Standards that is required to be followed consistently. Books of Accounts are therefore to be maintained accordingly and, of course, following a consistent method of accou....... + More
- 2021 (7) TMI 327 - CESTAT NEW DELHI
Clandestine Removal - M.S. Billets - pig iron - difference in the declared stock and physical stock beyond tolerance limit - corroborative evidence to allege that the apparent shortage is due to clandestine removal, present or not - HELD THAT:- The method of stock verification adopted by the Revenue in this case (during inspection) is not correct and free from error. Further, such stock taking is not provided under the scheme of the Central Excise Act read with the Rules. Further, it is found that the appellant has given cogent explanation for the apparent shortage, which has not been found wrong by the court below. Further, such apparent shortage is less than 1% in case of M.S. Billets and about 3% in case of Pig Iron, which is within the tolerance limit in this type of industry - Save and Except the bald allegation made by the Revenue o....... + More
- 2021 (7) TMI 300 - CESTAT BANGALORE
CENVAT Credit - inputs - plastic household buckets - kitchen containers - to be considered as inputs or not, as they were neither used in the factory for the manufacture of final products nor were they accessories to their final products? - inclusion of value of buckets and other plastic containers in the value of soap (final product) - HELD THAT:- In clause (ii) of Rule 2(k) of CCR, the expression “any goods” is emphasized and this expression has a wide scope and coverage and there are no restriction that the goods covered under the expression need to be part of final product which are subjected to manufacture or they need to be accessories etc. The sole criteria for the goods coming under the said expression “any goods” should be the one that the value of these goods should be included in the value of the final p....... + More