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- 2019 (9) TMI 886
Interest on unutilized reversed credit entry - HELD THAT:- The erstwhile Rule 14 of the Cenvat Credit Rules read as “taken or utilised”, which had been amended and substituted by the words “taken and utilised” - Such an amendment conveys the intent of the legislature and hence, substantive benefit cannot be denied to the appellant. Further, if credit has been taken but not utilised and is subsequently reversed, it leads to no consequence and results in a revenue neutral situation. The recovery of interest is untenable - appeal allowed - decided in favor of appellant.
- 2019 (9) TMI 885
CENVAT Credit - use of capital goods in the manufacturing of exempted goods - benefit of N/N. 30/2004-CE. availed - contention of the department is that since at the time of receipt of capital goods, the appellant was manufacturing exclusively exempted goods with the help of the said warping machine, they are barred from availing the Cenvat Credit on such capital goods - HELD THAT:- As per the facts of the present case, though the appellant received and installed the capital good in their running unit in August, 2015 but before completion of two years, in August, 2017 the capital good was used for manufacture of goods which were cleared on payment of duty, availing the exemption notification 29/2004-CE. Therefore, the capital goods were not used continuously for two years for manufacture of exclusively exempted goods. Since the amendment ....... + More
- 2019 (9) TMI 833
CENVAT Credit - inputs received from EOU - Rule 3(7)(a) of CCR 2004 - Department was of the view that the appellants have not complied with the provisions of Rule 3(7)(a) of CENVAT Credit Rules 2004 and availed excess credit besides wrongly availing credit of SAD - HELD THAT:- The excess credit on this account is only ₹ 2,28,722/- for the period April 2006 to March 2009 and ₹ 1,23,835 for the period April 2009 to February 2010 where the total credit availed for these periods is above ₹ 3 crores. Therefore the contention of the appellant that this was a mistake in calculation and that they were not aware of the revised formula prescribed in the Rules is acceptable - the demand raised for the extended period cannot sustain and requires to be set aside. Liability for Interest and penalty - HELD THAT:- The appellant is liabl....... + More
- 2019 (9) TMI 832
Interest on refund - duty paid on the inputs utilized in the manufacture of exported detergent - Section 11BB of CEA - HELD THAT:- The proviso to the said Section lays down that where the refund application stands made before the date on which the Finance Bill, 1995 receives the assent of the president and is not refunded within 3 months from such date, the appellant shall be paid interest under the said Section from the date immediately after three months from such date, till the date of refund of such amount - In terms of the said proviso, which applies to all the refund applications pending on the date of introduction of said Section 11BB, all such refund applications are supposed to be decided within a period of 3 months and if the amount is not refunded, the assessee shall be entitled to interest on the said refund, from the expiry o....... + More
- 2019 (9) TMI 831
Maintainability of appeal - non-prosecution of appeal - HELD THAT:- The appellants are not interested in pursuing the appeals. Accordingly, we dismiss the appeals for non-prosecution.
- 2019 (9) TMI 789
CENVAT Credit - input - iron ore - input service - royalty charges - appellant being bona fide purchaser of such iron ore has paid the royalty charges and service tax thereon as charged by the Monitoring Committee, Department of Mines & Geology in their tax invoices - HELD THAT:- The appellant has purchased the iron order from the Monitoring Committee, Department of Mines and Geology and has paid the royalty charges and service tax thereon separately as shown in the tax invoice issued by the Monitoring Committee and it is also not disputed that such input was used for manufacture of Sponge Iron by the appellant - further, once the appellant paid the service tax on the royalty charges, then he is entitled to take the CENVAT credit on the same and the CENVAT credit cannot be denied at the appellant’s end. Appeal allowed - decided in favor of appellant.
- 2019 (9) TMI 747
CENVAT Credit - input services - outdoor catering services availed at the factory - HELD THAT:- On perusal of the Larger Bench decision in the case of M/S. WIPRO LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE BANGALORE-III. [2018 (4) TMI 149 - CESTAT BANGALORE], it is observed that credit has been held to be not available on outdoor catering on the ground that food is always for personal consumption - In the present facts of case, it cannot be said that the facility obtained for catering services is for a particular employee or group of employees but for all the employees working in the factory which is located in a remote location, the fact which is not in dispute. Hon’ble Madras High Court in its decision dated 31.08.2017 in the case of COMMISSIONER OF CENTRAL EXCISE, COIMBATORE VERSUS M/S. PRICOL, UNIT-I, COIMBATORE AND THE CUSTO....... + More
- 2019 (9) TMI 746
Valuation - whether the discount passed by the respondent @0.70 per kg to BEST during the relevant period June 2009 to April 2010 is admissible or be added to the value as an additional consideration for the CNG sold? - HELD THAT:- The revenue disputed the correctness of the said discount only after the agreement dated 12.05.2008 was executed allowing the respondent to sale CNG to outside vehicles - the second agreement dated 12th May 2008 is a separate transaction between the respondent and BEST for allowing outside vehicles to fill CNG at various filling stations installed by the respondent in the premises of BEST on payment of certain fees by the respondent to BEST. No investigation has been conducted by the revenue to establish the allegation that the discount offered by the respondent to BEST was in lieu of all infrastructural facili....... + More
- 2019 (9) TMI 745
Clandestine removal - Recovery of duty short paid - manufacture and clearance of MTs ingots - HELD THAT:- It is not in dispute that the quantity of ingots manufactured and cleared without payment of duty has been determined solely on the basis of technical report/opinion of Dr.N.K.Batra - The said issue need not detain us any longer as the issue of demand of duty based on electric consumption, taking note of Dr.N.K. Batra’s report, is no more res integra being considered and settled by Hon’ble Jharkhand High Court in the case of Balashri Metals Pvt. Ltd [2016 (10) TMI 872 - JHARKHAND HIGH COURT] and later followed in Om Shanti Steel & Castings Pvt. Ltd. [2016 (12) TMI 93 - JHARKHAND HIGH COURT]. In the said judgment it is observed that merely on the basis of Dr.N.K. Batra’s report, demand of duty alleging clandestine....... + More
- 2019 (9) TMI 704
Classification of goods - Light Diesel Oil (LDO) - the entire case is based on the opinion of the chemical examiner based on the internal test report of the appellants - Revenue neutrality - HELD THAT:- For the purpose of classification of the goods under the heading 2910 1940 as LDO, the product needs to answer to the definition of LDO appearing in para (f) of the supplementary notes to Chapter 27 Central Excise Tariff Act, 1985. While the IS parameters for LDO were changed in 2008, the said definition was not amended by Revenue. Post 2008 IS 1460:2000 apply solely to HDO and for the purpose of LDO, a different IS was introduced, namely IS-15770:2008. It is seen that the Revenue has not drawn any samples and has relied on the internal reports of the appellants to arrive at the conclusion that the product SRGO answers to the parameters pr....... + More
- 2019 (9) TMI 703
SSI Exemption - clubbing of clearances - request for cross-examination denied - section 9D of the Central Excise Act - HELD THAT:- A perusal of the SCN shows that reliance have been placed on the statements of these persons. These statements were recorded in the year 1988/1989. In absence of examination/cross examination no reliance can be placed on these statements. It is seen that case of the Revenue on account of clandestine clearance on the basis of documents which show difference between bank statements and RG-I register is also subject to interpretation given by Shri H.R. Patel in his statements. Shri H.R. Patel was also not examined/ cross examined. In the above facts and circumstances, the assertion of the appellant that long delay of 13-14 years and failure to conduct cross examination of various persons on whose statements Reven....... + More
- 2019 (9) TMI 702
Condonation of delay of 218 days in filing appeal - power of Commissioner (Appeals) to condone delay - Section 35 of CEA - HELD THAT:- The Commissioner (Appeals) has no power to condone the delay beyond the period of one month then the period of 60 days from the date of the order appeal against. The delay herein was much more than the said period of 30 days. The application in hand is not sustainable for the said reason and also for the reason that in filing the appeal before this Tribunal, there has been a delay of more than a month and the reason mentioned in the application for the said delay not appears to be sufficient cause specifically in the absence of any medical records for the purpose - Application dismissed.
- 2019 (9) TMI 701
CENVAT credit - time limit availing credit - sub-rule (7) of Rule 4 of Cenvat Credit Rules - HELD THAT:- It is not in dispute that when the credit was taken i.e. on 28.02.2015, proviso to sub rule (7) of Rule 4 of CCR provided that such credit could not have been availed. - proviso restricting the credit within 6 months will apply from the date 1.9.2014 for the availment of cenvat credit after that date. The rule was clear and there was no ambiguity in the Rule. The rule changed with effect from 01/03/2015 and the words ‘six months’ were changed to ‘one year’. - The amendment so made to the said proviso would have prospective effect. Consequently, the credit would not be admissible to the appellant since the duty was paid during the period 02.04.2014-31.08.2014 and credit was availed on 28.02.2015. Time limitation ....... + More
- 2019 (9) TMI 669
CENVAT credit - items which were cleared by the appellant as scrap or as un-used items or partially used items - case of appellant is that these goods are generated out of the items procured prior to March 1994 and therefore there is no question of reversal of Cenvat credit - applicability of Rule 3(5A) of Cenvat Credit Rules, 2004 - HELD THAT:- Rule 3(5A) applies on capital goods on which credit has been taken and which are cleared as waste and scrap. The product has to be first been received as capital goods and on which the credit has been availed. Before invoking Rule 3(5A) of the Cenvat Credit Rules, 2004, it is necessary for the Revenue to establish that items of capital goods are cleared as waste and scrap and on which the appellant has availed Cenvat credit. The defense of the appellant throughout is that they have not availed Cen....... + More
- 2019 (9) TMI 668
CENVAT Credit - Partial writing off of inputs - reversal u/r 3(5B) of CCR - HELD THAT:- It is an admitted fact that the appellant has partially written off the value of certain inputs and has not fully written off. Further, as per the provisions of Rule 3(5B), the appellant is required to reverse the CENVAT credit if he has written off fully the value of inputs whereas in this case, the appellant has not fully written off - Further, in the case of partial writting off, the provision has been incorporated with effect from 1.4.2011 whereas in the present case, the period involved is prior to this date, therefore, this amendment is not applicable in the appellant’s case - demand set aside - appeal allowed - decided in favor of appellant.
- 2019 (9) TMI 644
Clandestine removal - finished goods cleared without recording such clearance in their Daily Stock Register - demand based on allegation of shortage of goods - principles of natural justice - HELD THAT:- The reasons assigned for proposing the duty demand were the shortage of goods found during physical verification on 10.01.2011 and that the details of such goods were not reflected in the ER-1 returns filed during the impugned period from 28.02.2010 to 10.01.2011. It is found that the said physical verification was carried out as per the request of the Appellant to verify the destroyed goods and grant permission to restart production. In the Adjudication order, no finding has been given by the Asstt. Commissioner about the various correspondences exchanged between the Appellant and the Department though the table containing sequence of ev....... + More
- 2019 (9) TMI 643
100% EOU - Clandestine removal - diversion of goods to DTA instead of EOU - penalty u/r 25 of Central Excise Rules, 2002 - HELD THAT:- As per facts of the case, it is not case of clandestine removal as the appellant have cleared goods initially which was meant for another EOU and clearances was made ARE-3 against CT-3 certificate. It is only due to the cancellation of the order, the appellant was compelled to divert the goods to DTA for which necessary permission was obtained from the Deputy Commissioner, therefore, there is no malafide intention on the part of the appellant. Penalty cannot be upheld - appeal dismissed - decided against Revenue.
- 2019 (9) TMI 642
Rejection of refund claim - unjust enrichment - duty discharged @ 16% instead of 9.6% due to oversight for the period from July 2002 to December 2002 - N/N. 9/2002-CE dated 1.3.2002 - rebuttal of presumption - section 12B of CEA - HELD THAT:- Undisputedly, the appellant had shown the duty amount in the invoice issued to the customers. Thereafter, on realizing the mistake of excess payment of duty, they have issued credit notes to the customers so as to adjust the excess payment made by them. This adjustment is rebutted in the balance sheet in the form of receivables. Thus, it is very much clear from the accounts as well as the documents that the appellant has rebutted the presumption envisaged under section 12B of Central Excise Act. The rejection of the refund claim on the ground that it is hit by unjust enrichment therefore cannot sustain - Refund allowed - appeal allowed - decided in favor of appellant.
- 2019 (9) TMI 578
Refund claim - relevant date - CENVAT Credit reversed in excess of what was required to be reversed - common inputs used for both dutiable and exempted goods - Rule 6(3A) of CCR, 2004 - HELD THAT:- Rule 6(3A), Clause (f) which is applicable in the present case, there is no time limit provided for claiming the credit. Further, the relevant date as provided in Section 11B of the Central Excise Act is also to be counted from the date of adjustment of duty after the final assessment which is specially provided in Clause (eb) of Section 11B. Further, in the present case, the final adjustment happens on 30.11.2017 and that is the relevant date for the purpose of reckoning the period of limitation as provided in Section 11B and if that date i.e., 30.11.2017 is taken, then the refund claim filed on 4.7.2018 is within the period of limitation. Bot....... + More
- 2019 (9) TMI 577
Refund of the excess duty paid - provisional assessment - doctrine of unjust enrichment - Section 11B read with Section 12B of the Central Excise Act, 1944 - HELD THAT:- The appellant’s own case M/S TVS MOTOR COMPANY LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE& SERVICE TAX MYSORE [2017 (6) TMI 163 - CESTAT BANGALORE], this Tribunal has held that any appeal against the sanctioning of refund order, the Revenue cannot recover erroneously sanctioned refund by parallel proceedings by issue of SCN. The Division Bench of this Tribunal in the case of C.C.,C.E. & S. T- MYSORE VERSUS JK TYRE & INDUSTRIES LTD., VIKRANT TYRES LTD. [2018 (6) TMI 174 - CESTAT BANGALORE] has held that the test of unjust enrichment does not apply to the cases of provisional assessment. Refund allowed - appeal allowed - decided in favor of Appellant.