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Central Excise - Case Laws
Showing 101 to 120 of 225 Records
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2015 (3) TMI 780 - GOVERNMENT OF INDIA
Denial of rebate claim - merchant exporter - excess duty paid by the manufacturer supplier - Notification No. 19/2004-CE(NT) dated 06.09.2004 and Notification No. 4/2006-CE dated 01.03.2006 - original authority held that duty was required to be paid on exported goods at the effective rate of duty @ 4%/5% in terms of Notification No. 4/2006-CE dated 01.03.2006 as amended and sanctioned the rebate claims to the extent of duty payable @ 4%/5% - Simultaneous availment of benefit of two notifications - Commissioner (Appeals), modified the impugned Orders-in-Original and allowed the recredit in cenvat credit account of the amount rejected as rebate.
Held that:- There is no merit in the contentions of applicant that they are eligible to claim rebate of duty paid @10% i.e. General Tariff Rate of Duty ignoring the effective rate of duty @ 4% or 5% in terms of exemption notification No. 4/06-CE dated 1.03.06 as amended. As such Government is of considered view that rebate is admissible only to the extent of duty paid at the effective rate of duty i.e. 4% or 5% in terms of Notification No. 4/06-CE dated 1.03.06 as amended, as applicable on the relevant date on the transaction value of exported goods determined under section 4 of Central Excise Act, 1944. - Decided against the assessee.
Allowing the manufacturer to avail re-credit of the amount paid in excess - revenue contended that manufacturers have already recovered excess duty from its buyer M/s Cipla Ltd., Mumbai and allowing re-credit of excess paid amount in the cenvat credit account of manufacturer will lead to additional benefit to the manufacturer which will amount to unjust enrichment. - Held that:- The factual position is to be verified by the original authority from records. Government notes that in these cases claimant is a merchant exporter and duty on exported goods is paid by manufacturer. So, the re-credit of excess paid amount is to be allowed as ordered by Commissioner (Appeals),, only if the provisions of section 12B of Central Excise Act 1944 are complied with. - Decided in favor of Revenue.
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2015 (3) TMI 779 - GOVERNMENT OF INDIA
Denial of Rebate claims on reexport of capital goods as such - whether reversal of cenvat credit under rule 3(4)/ 3(5) of Cenvat Credit Rule 2004 on removal of inputs / capital goods as such is to be treated as payment of duty for the purpose of sanctioning rebate claim under rule 18 of CER 2002 read with Not. No. 19/04-CE(NT) dated 6.9.2004 - Held that:- an amount reversed under rule 3(4) / 3(5) of Cenvat Credit Rules 2004 on removal of inputs / capital goods as such payment of duty of excise for the purpose of sanctioning rebate claim under rule 18 of Central Excise Rules 2002 read with Not. No. 19/04-CE(NT) dated 6.9.2004 - that applicant has cleared the capital goods as such for export after payment of duty by way of reversal of cenvat credit under Rule 3(5) of Cenvat Credit Rules 2004. Therefore, the rebate claim is admissible to the applicant under Rule 18 of Central "Excise Rules 2002 read with Notification No.19/04-CE(NT) dated 6.9.04 subject to the condition that the provision of Notification No.19/04-CE(NT) dated 6.9.04 are complied and rebate claim is otherwise in order. - Following decision of Sterlite Industries Ltd. Raigarh [2011 (3) TMI 1556 - BOMBAY HIGH COURT] - Decided in favour of assessee.
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2015 (3) TMI 746 - GUJARAT HIGH COURT
Deemed credit denied to the re-rollers availing SSI Exemption - Benefit of Notification No.1/93-CE - Whether the re-rollers whose aggregate value of clearances in the current financial year had exceeded ₹ 75,00,000/- and who were paying full rate of central excise duty as applicable to re-rollers in respect of clearances exceeding ₹ 75,00,000/- in the current financial year, could still avail of the benefit of the Government of India Order - Held that:- From the heading of the notification it is clear that the benefit thereunder is available to S.S.I. units provided they have not exceeded clearances of rupees two crores in the preceding financial year. What is stated in the heading is provided under clause (3) of the notification which limits the entitlement to the benefit of the notification to S.S.I. units, the aggregate value of whose clearances have not exceeded rupees two hundred lakhs. In effect and substance, clause (3) of the notification provides for the eligibility criteria for getting the benefit of the said notification and accordingly provides that such S.S.I. units whose aggregate clearances in the preceding financial year have not exceeded two hundred lakhs shall be eligible to get the benefit of the said notification. Assigning a plain meaning to the language used in the Government Order dated 1st March, 1994, the rerollers who are eligible to get the benefit of the Notification No.1/93 and are availing exemption thereunder are eligible to get the benefit of deemed credit thereunder.
Provision whereby the benefit of notification No.1/93 is limited to the aggregate value of clearances of specified goods to the extent of rupees seventy five lakhs relates to the extent of benefit that can be claimed under the said notification. However, the same is not an eligibility criteria for availing of the benefit of the said notification. A reroller who avails of the benefit of Notification No.1/93 is by dint of such fact eligible for the benefit of deemed credit under the Order dated 1st March, 1994 and the benefit under the said order is not qualified by the limit provided for availment of the benefit of Notification No.1/93. The decision of the Tribunal in the case of Digambar Foundary v. Commissioner of Central Excise (supra), whereby it is held that the eligibility to avail of the benefit under the order would be only to the extent the clearances do not exceed ₹ 75,00,000/-, is, therefore, an incorrect interpretation of the Order dated 1st March, 1994 as well as the Notification No.1/93. - Tribunal was not justified in holding that the benefit of deemed credit available under Order TS/36/94--TRU dated 1st March, 1994 passed by the Central Government in exercise of powers conferred under rule 57G(2) of the erstwhile Central Excise Rules, 1994 could be denied to the re-rollers whose value of clearances have crossed ₹ 75,00,000/- in a particular financial year for the purposes of exemption Notification No.1/93 on the ground that such re-rollers could not be said to be availing of exemption under the Notification No.1/93 dated 28-2-1993.
Respondent M/s Sonthalia Steel Re-Rolling Mills had availed the benefit of deemed modvat credit of ₹ 5,74,098/- on 24th December, 1995 for input lying in stock, after the Notification:TS/36/94-TRU dated 1st March, 1994 came to be rescinded vide Notification:TS/8/95-Tru.-CE (NT) dated 16th March, 1995 whereby the Central Government in exercise of powers under the second proviso to sub-rule (2) of rule 57G of the rules rescinded the order dated 1st March, 1994 with effect from 1st April, 1995. Thus, to the extent M/s Sonthalia Steel Re-Rolling Mills had availed the benefit of the order dated 1st March, 1994 after it came to be rescinded with effect from 1st April, 1995, it was not entitled to such benefit. - Decided partly in favour of assessee.
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2015 (3) TMI 737 - MADRAS HIGH COURT
Evasion of duty - Ignorance of law - Imposition of penalty u/s 11AC - Held that:- There is a specific finding by the Commissioner that only due to ignorance of law, the assessee has not paid the duty. It is trite law that ignorance of law cannot be a ground to avoid tax liability and to allow the appeal. There is yet another factor involved in the present case, viz., IOC being a public sector undertaking, as has been admitted by the Tribunal, is under excise control for generations. IOC has supplied goods in bulk and, therefore, show cause notice has also been issued on them. Therefore, IOC should have been well aware of the change in circumstances. In such circumstances, it should be expected that the assessee was aware of the position through IOC. Further, the assessee having an unit at Bombay, would have been aware of the changes in the law and, therefore, it cannot come before this Court and seek indulgence on the ground of ignorance of law.
IOC, which is a public sector undertaking and admittedly coming under the Excise Control for generations, as observed by the Tribunal, should have, at the time of supply of bulk goods, informed the assessee that on repacking, duty liability has to be discharged. In this case, correct information was not disclosed to escape payment of duty. - The statement recorded from the persons and the finding of the Commissioner in the earlier and later orders clearly show that it is a case where proviso to Section 11A could be invoked.
Taking note of the specific provision of Section 11AC where there is a specific mandate that the assessee shall be liable to pay penalty, the mere payment of duty even after the show cause notice is not a ground to waive penalty. Hence, the Tribunal is not justified in deleting the penalty imposed under Section 11AC of the Central Excise Act. Such a mandate under the Statute cannot be given a go-by by the Tribunal. - penalty imposed under Section 11AC is justified. Since this Court has held that the duty demand and the penalty are justified due to suppression of materials by the assessee, the consequential payment of interest on delayed payment of duty stands attracted automatically and the Revenue is justified in invoking Section 11AB directing payment of interest. - Decided in favour of Revenue.
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2015 (3) TMI 735 - MADRAS HIGH COURT
Denial of refund claim - Unjust enrichment - Held that:- as is evident from the records, it is not a case of refund of duty. It is a pre-deposit made under protest at the time of investigation, as has been recorded in the original proceedings itself. In this regard, it has to be noticed it has been the consistent view taken by the Courts that any amount, that is deposited during the pendency of adjudication proceedings or investigation is in the nature of deposit made under protest and, therefore, the principles of unjust enrichment does not apply. - Refund allowed - Decided against the revenue.
Whether the Tribunal was justified in holding that without a show cause notice issued under Section 11-A, there could be no recovery consequent to proceedings initiated under Section 35-E of the Act - Held that:- In the impugned order passed by the Tribunal, however, the judgment in Asian Paints (supra) was distinguished by the Tribunal on the ground that the said decision did not deal with the issue as to whether a notice under Section 11A of the Central Excise Act is mandatory for the purpose of proceeding for recovery and, thereby, on the facts of the present case, it was held to be not applicable. On a perusal of the above decision, as also the impugned order of the Tribunal, this Court is of the considered view that the distinction as drawn by the Tribunal distinguishing the said judgment with the facts of the present case is fully justified and does not warrant any interference, since the issue that arise in the case on hand is whether issuance of show cause notice is mandatory under Section 11A of the Act.
On a careful reading of Section 11-A, it is clear that the said section mandates the issuance of a show cause notice, prior to passing an order, asking the person to show cause as to why duty, which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, shall not be paid. From a perusal of the documents available on record, as also the order of the Tribunal, it is clear that no such notice, as mandated under Section 11A, was issued for recovery of the duty on the ground of erroneous refund. This view is further fortified by the decision of the Supreme Court in the case of Collector Vs Re-rolling Mills (1997 (7) TMI 124 - SUPREME COURT OF INDIA).
Further, the Board's Circular No.423/56/98-CX dated 22.9.1998 also stresses the need for the concerned Departments to issue timely demands through show cause notices within six months period as contemplated under Section 11A of the Act. This in itself shows that the show cause notice, as provided under Section 11A of the Act is mandatory in nature and the same has to be adhered to before proceeding further in the matter. Further, as has been observed by the Tribunal, circulars issued by the Board are binding on the Departmental authorities. Therefore, In the absence of any such show cause notice, which is mandatory, the Department cannot seek recovery of the amount. - Decided against Revenue.
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2015 (3) TMI 734 - GUJARAT HIGH COURT
Invocation of extended period of limitation - Suppression of facts - Whether or not period of five years provided under proviso to Section 11A(i) can bar the demand of Central Excise duty when the clearance are affected by reason of willful mis-statement and suppression of facts and in contravention of the provisions of the Act and Rules - Held that:- Inspection was carried out by the Officers of the appellants on 16.91996. The first show-cause notice was issued on 14.3.1997 and the second showcause notice was issued on 20.4.1998 and the third show-cause notice was issued on 27.3.2001. It is true that the show-cause notices were issued with regard to part of the transactions for different periods, but on the basis of the same inspection made on 16.9.1996. Once the earlier show-cause notices were issued with regard to the same inspection, then the averment of the department cannot be accepted that they have discovered suppression, fraud etc. subsequently. Everything was within the knowledge of the department from the date of inspection and from the Panchnama made by them on 16.9.1996. Therefore, in view of the peculiar facts and circumstances of the case, the extended period of five years was not available to the department. - Decided against Revenue.
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2015 (3) TMI 733 - GUJARAT HIGH COURT
Excisability of the respondent's product “custom pack” - Whether in the facts and circumstances of the case, the process carried out by the assessee will amount to manufacture or not - Held that:- The appellant has placed reliance on the decision of the Apex Court in the case of FEDDERS LLLOYD CORPORATION LTD. VS. COMMISIONER OF CENTRAL EXCISE, MUMBAI reported in [2007 (12) TMI 8 - SUPREME COURT OF INDIA] wherein the definition of the word `manufacture' as laid down in Section 2(f) of the Central Excise Act has been considered and the law laid down by the Apex Court is clear that process will result in alteration or change in the fact leading to production of a commercially new article as a manufacture. In the instant case, the Tribunal has recorded its finding of fact that the product is only `pack' and no new product is manufactured by the respondent assessee and therefore no excise duty could be levied. Therefore, the decision of the Apex Court is no help to the appellant as only packaging of product is being done of the goods which are manufactured by the assessee. - No merit in appeal - Decided against Revenue.
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2015 (3) TMI 732 - GUJARAT HIGH COURT
Availment of deemed credit - deemed credit on Iron and Steel Re-rollable materials @ ₹ 920 PMT - Whether the Tribunal is correct in extending the deemed credit benefit to a unit availing Notification No.1/93-CE dated 28.2.1993, even after crossing the value of clearances of their goods of ₹ 75 lakhs and when they are paying full rate of duty after crossing the exemption limit - Held that:- this court has affirmed the view taken by the Tribunal at Madras [1996 (3) TMI 262 - CEGAT, MADRAS] - The result is that the respondent assessee was entitled to the benefit of deemed credit benefit in pursuance of the notification dated 28.2.1993. - Decided against Revenue.
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2015 (3) TMI 699 - BOMBAY HIGH COURT
Availment of CENVAT Credit - Where the assessee has cleared the manufactured goods for export on payment of excise duty at 20% by debiting the Modvat Credit Account and subsequently obtained rebate of the said duty paid under Rule 12 of the Central Excise Rules, 1944 and later on if it is found that the correct duty payable was 10%, whether the excise authorities can claim cash payment of the excess duty debited to the Cenvat Credit Account - Held that:- The notification dated 1st March, 1994, itself clarifies that there is a partial exemption to specified goods falling under Chapters 28, 29 and 30 of the Central Excise Tariff Act, 1985. A copy of this Notification dated 1st March, 1994 (Notification No.6 /94- C.E .) denotes that serial no.6 are bulk drugs on which 10% Adv. duty can be paid. There are no conditions attached and appearing in the table. - exemption as partially granted by this notification was available in both the cases namely clearance for home consumption and for export. If the Assessee in this case has paid duty at the tariff rate namely 20% and not availed of the exemption under the subject notification, and subsequently sought refund of the duty paid over and above 10%, or has made payment from the accumulated amount or the credit accumulated in his Modvat account, the Tribunal found that he could not have been denied the relief.
Show cause cum demand notice itself was without any authority and jurisdiction. No demand could have been raised in the present circumstances and such a finding is essentially emanating from the purported factual position. The finding of fact, therefore, really raises no substantial question of law. We find that the Tribunal's reasoning and particularly in paragraph no.4 , does not warrant our interference because, the Tribunal's view is a possible and plausible one. It is consistent with the factual materials on record. Hence, it is neither perverse nor vitiated by any error of law apparent on the face of record. There is no prohibition in law for the course adopted by the Assessee that we must sustain the impugned order. - Decided against Revenue.
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2015 (3) TMI 694 - MADRAS HIGH COURT
Denial of CENVAT Credit - Capital goods - Removal of capital goods as such - Whether the Honourable CESTAT was correct in holding that 'Capital Goods removed as such' would mean without putting the machinery to any use - Held that:- Following decision of Commissioner of Central Excise, Salem Vs M/s.Rogini Mills Ltd. [2010 (10) TMI 424 - MADRAS HIGH COURT] - Decided against Revenue.
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2015 (3) TMI 693 - BOMBAY HIGH COURT
Denial of MODVAT Credit - Classification of goods - whether products of the respondent assessee are proprietary classifiable as patent or proprietary medicaments for they are solely generic drugs therefore, classifiable as such - Held that:- Tribunal could not have disposed of the assessee's appeal, even in his absence, without considering the issue as to whether the products are classifiable as patent or proprietary medicaments or medicines other than proprietary and generic name. It is only then the issue whether the Modvat credit is admissible, if the final product attracts Nil duty could have been determined by the Tribunal. In the circumstances, the Tribunal's order does not deal with the entire controversy as projected by the parties. It was the bounden duty of the Tribunal to apply its mind to some vital and basic issues. The Tribunal's approach therefore, is clearly faulty and as a result, it failed to perform its duty as last fact finding authority. Then, its order does not satisfy the requirement in law. - Matter remanded back - Decided in favour of Revenue.
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2015 (3) TMI 692 - MADRAS HIGH COURT
Maintainability of appeal - Held that:- Section 35G of the Central Excise Act, 1944 provides that an appeal on the issue relating to rate of duty of excise or value of goods for purposes of assessment would not lie before this Court - Court in the case of The Commissioner of Central Excise, Chennai - II V. Vadapalani Press and another reported in [2015 (1) TMI 318 - MADRAS HIGH COURT], while dealing with the objection raised by the assessee as to the maintainability of the appeal, after following the above-said decision of the Supreme Court in Navin Chemicals Manufacturing & Trading Co. Ltd. - Vs Collector of Customs (1993 (9) TMI 107 - SUPREME COURT OF INDIA), and that of the Gujarat High Court in the case of in Commissioner of Central Excise v. JBF Industries Ltd., [2010 (12) TMI 437 - GUJARAT HIGH COURT], held that appeal is not maintainable. - while this Court is not inclined to deal with the matter, while disposing off the present appeal as not maintainable, is inclined to grant liberty to the appellant/Revenue to pursue the matter in accordance with law, if so advised. - Appeal not maintainable.
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2015 (3) TMI 691 - PATNA HIGH COURT
Evasion of central excise duty by removing finished product i.e. Non-Alloy Steel Ingots without issuing statutory invoice and without payment of central excise duty - Held that:- In the scheme of the Central Excise Act and the rules made thereunder, a manufacturer can remove the finished goods from the premises, only after payment of the central excise duty. Since the prepayment of excise duty for each consignment may lead to some hardship, the facility of payment of excise duty, periodically, is extended to the manufacturers. Wherever such facility is extended, the manufacturer can remove the goods without prior payment, but the excise duty payable thereon must be remitted at certain intervals. Secondly, the Central Government has created the facility of adjustment of duty on raw-materials and other components that go to the process of manufacture, against the duty payable on the finished product, at their level. This would, inter alia, lessen the burden of payment of excise duty.
Through Rule 12 CCC of the 2002 Rules, the Central Government enabled the concerned assessing authority to place restriction as to the facility of making deferred payment of central excise duty, in case it is noticed that the manufacturer is resorting to evasion of duty or other unlawful activities. Similarly, if a manufacturer is said to be resorting to such acts and omissions, the authority is also conferred the power to place restriction on the utilization of CENVAT credit facility for a specified period, as provided in Rule 12 EEE of the Rules. The petitioner is unable to convince this Court that the rules, referred to above, are contrary to any specific provisions of Central Excise Act or for that matter the Constitution of India. Except taking a vague, general and espacious plea, no specific grounds are urged nor any precedent cited. - The judgments rendered by the Delhi High Court in Vinay Wires and Poly Products Pvt. Ltd. Vs. Member (Central Excise), Central Board of Excise and Customs, New Delhi [2010 (1) TMI 30 - DELHI HIGH COURT ], and Gujarat High court in Vishal Engineering Vs. Union of India & Ors. [2011 (7) TMI 1090 - GUJARAT HIGH COURT] are in cases where the parties are said to have been denied the opportunity of being heard. This, however, is a case where the petitioner persistently refused to participate in the proceedings. - Decided against Assessee.
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2015 (3) TMI 661 - MADRAS HIGH COURT
Denial of CENVAT Credit - credit on MS Rod Sheets, M.S.Chennel, M.S.Plates, Flats etc. used in the fabrication of fly ash hooper, fly ash bin, fly ash handling system & kiln brick laying work to bold refractories - Held that:- there is no change in the circumstance and this Court had already considered the issue and held that the decision reported in [2011 (8) TMI 4 - SUPREME COURT OF INDIA ] (Saraswati Sugar Mills V. Comissioner of Central Excise, Delhi - III) is distinguishable on facts. This Court applied the principles laid down in the decision reported in [2010 (7) TMI 12 - SUPREME COURT OF INDIA] (Commissioner of Central Excise Jaipur V. Rajasthan Spinning & Weaving Mills Ltd.) and held that the Tribunal was justified in allowing the assessee's contention in respect of the very same assessee. - Decided in favour of assessee.
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2015 (3) TMI 660 - MADRAS HIGH COURT
Denial of refund claim - Refund claim of accumulated CENVAT Credit - Claim barred by limitation - Duty drawback claim - Tribunal, by following the decision of the Madhya Pradesh High court in the case of STI India Ltd. V. CCE reported in [2008 (10) TMI 246 - HIGH COURT OF MADHYA PRADESH AT INDORE] dismissed the appeal holding that the limitation prescribed under the provisions of Section 11B of the Central Excise Act will not apply to the case - whether the refund claim is filed within the period prescribed under Section 11B of the Central Excise Act - Held that:- In exercise of the powers conferred by rule 5 of CENVAT Credit Rules, 2002, the Central Government hereby directs that refund of CENVAT credit of specified duty allowed in respect of inputs used in or in relation to the manufacture of final products which are cleared for export under bond may be allowed subject to the safeguards, conditions and limitations, set out in the notification No.11/2002-C.E.(N.T.).
The application in Form A along with the proof of due exportation and the relevant extracts of the records maintained under the said rules or the deemed credit register maintained in respect of textile fabrics, as the case may be, in original are lodged with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 - Section 11B, prescribes the limitation date and the Notification 11 of 2002 dated 1.3.2002, which the Department failed to enclose in the typed set of papers and in all fairness produced before this Court by the counsel for the first respondent, it is clear that refund application should be filed before the expiry of the period specified in Section 11B of the Central Excise Act. - Here is a case, where the claim for refund is filed after a period of one year and hence, the same is clearly hit by the provisions of Section 11B of the Central Excise Act read with Notification No.11 of 2002 dated 01.03.2002 - Decided in favour of Revenue.
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2015 (3) TMI 659 - BOMBAY HIGH COURT
Cross Utilization of CENVAT Credit - utilisation of AED (T&TA) - Demand of interest and penalty - contravention of the provisions of Rule 3(6)(b) read with Notification No. 24/99CE( NT) dated 1st March, 2000 - wrong utilization of Additional Duty of Excise (T&TA) for the payment of Basic Excise Duty and AED (GOSI) - Malafide intention of evasion of duty - Held that:- any cross utilisation or cross availment is not permissible. Appellant would rely upon the words “the Cenvat Credit may be utilised for payment of any duty of excise on any final products” separated by further word 'or' “for payment of duty on inputs or capital goods themselves if the further condition stipulated thereunder is satisfied”. The words “any duty of excise on any final products” cannot be read in such a manner as to enable cross utilisation. This subrule does not support the argument of Appellant that in payment of additional duties under the 1957 Act, the credit thereof can be obtained so as to enable payment of duty of excise specified under the 1978 Act. Appellant's argument, as already held above, fails to take note of the fact that one is the additional duty on goods of special importance, whereas later on is only additional duty on textiles and textile articles.
Independent of this order, the Appellant has addressed us extensively on the construction/interpretation of the Rule 57AB. Once we are not in agreement with the Appellant, then, any further reference to these Rules or decisions of the Tribunal is unnecessary. We also need not enter into the controversy as to whether the Tribunal erred in not following or applying its decision in the case of Reliance Industries Limited and Ors. [2002 (7) TMI 168 - CEGAT, MUMBAI] while deciding the Appeals by the impugned order. Once our independent satisfaction enables us to reach the conclusion as above, then, we are not required to go into this question any further. The inputs and the final product dealt with by 1957 Act and the 1978 Act are not one and the same. This aspect is clear if note is taken of the nature of the goods specified in the Schedules to these Acts. As the title indicates one category is of goods of special importance whereas the other is textiles and textile articles. The fact that these goods are separately and distinctly classified in the Schedules to these Acts and equally in the Central Excise Tariff is enough to reject the submissions of the Appellant.
There is no substance in the argument that between 1st March, 2002 to 9th September, 2004 the credit of AED(T&TA) can be used for payment of any of the specified duty referred to in SubRule (1) of Rule 3. Further, the nonobstante clause appearing in Rule 3(6) is so worded because the entitlement to credit is spelt out in Rule 3(1). Thereafter, Rules 3(2) and 3(3) sets out the mode and manner of availment thereof. It is clarified by Rule 3(3) that Cenvat Credit may be utilised for payment of any duty of excise on any final products or for payment of duty on inputs or capital goods even if the inputs are removed as such or after being partially procured or such capital goods are removed in that State. Hence, Rule 3(6) contains the nonobstante clause and read as above. It does not mean recourse to Rule 3(3) is permissible for cross utilisation.
In fact subsection (3) of section 3 of Additional Duties of Excise (Goods of Special Importance) Act, 1957 was substituted by section 63(a) of the Finance Act, 1994. That clearly states that the provisions of Central Excise Act, 1944 (1 of 1944) and the Rules made thereunder including those relating to refunds, exemptions from duty, offences and penalties, shall, so far as may be apply, in relation to the levy and collection of the additional duties as they apply in relation to the levy and collection of the duties of excise on the goods specified in subsection (1).
Merely because the language of subsection (3) of section 3 of both Acts has undergone some change does not mean that interest is not leviable and recoverable. In fact, the provisions of Central Excise Act, 1944 and the Rules made thereunder including those relating to refunds, exemption from duty, offences and penalties, shall, so far as may be, apply in relation to levy and collection of the additional duties of excise on the goods specified in section 3(1). Such broad and wide stipulation would definitely include interest.
There is no justification for imposition of the penalties. Merely because the orders have been challenged and right up to this Court does not mean penalties were imposable. The Penalties on the Appellant in each of these Appeals are therefore set aside. - Decided partly in favour of assessee.
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2015 (3) TMI 658 - DELHI HIGH COURT
Denial of refund claim - deposit under protest - Whether Customs, Excise and Service Tax Appellate Tribunal was right in holding that the refund claimed by the appellant was governed by provisions of Section 11B of the Central Excise Act, 1944 and was barred by limitation - Held that:- The occasion for the Commissioner (Appeals) to go into the matter was because the Assistant Commissioner, i.e., the authority of the first instance who adjudicated on the refund claim did not consider it necessary to address the question whether the refund application was made within time. It was apparently assumed that the show cause notice culminated in the Order in Original on 23.6.2004 and the refund application was made within six months if it were to be reckoned from that date. In a sense, there was an assumption that the application was within the stipulated time and that the second proviso did not come into play. On appeal, however, the Commissioner went into the materials and rendered the finding of fact. That finding of fact has not been upset by the CESTAT. The assessee/appellant’s attempt to have that order rectified in miscellaneous proceedings too was unsuccessful, as is evident from the further order dated 4.8.2010 of the CESTAT. In these circumstances, this Court is of the opinion that in fact no question of law arises in the facts of this case. - Decided against assessee.
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2015 (3) TMI 657 - BOMBAY HIGH COURT
Cenvat Credit - denial of cenvat credit on the ground that activity undertaking by the assessee not amount to manufacture - process of printing and laminating the bare polyester / metalised film - whether an individual and distinct product has come into existence - manufacturing of packaging material falling under Chapter 39 and other final products, falling under Chapters 47, 48, 74, 76 and 84 of the Central Excise Tariff Act, 1985 - Held that:- In the facts and circumstances peculiar to the Assessee , it was held by the Tribunal that the matter does not fall within the tests which are laid down by the Hon'ble Supreme Court in the case of Metlex (I) Pvt. Ltd. (2004 (2) TMI 387 - SUPREME COURT OF INDIA). That Judgment is clearly distinguishable. Once such is the exercise undertaken by the Tribunal, then, no substantial question of law arises for our determination and consideration in this Appeal. The Appeal is devoid of merits. We are surprised that such an Appeal has been brought by the Revenue . For, once it is the Assessee who admits that what he is doing is manufacture of goods and products which are sold and marketable and known to the market as such. In the circumstances a clear rethink is necessary when blindly some ratio of a Judgment of the Hon'ble Supreme Court and dehors the factual position is relied upon to file frivolous Appeals. - Decided against Revenue.
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2015 (3) TMI 656 - MADRAS HIGH COURT
Maintainability of appeal - SSI exemption - Notification No.8 of 2010 - Use of other person's brand name - Held that:- Court in the case of The Commissioner of Central Excise, Chennai - II V. Vadapalani Press and another [2015 (1) TMI 318 - MADRAS HIGH COURT] while dealing with the objection raised by the assessee as to the maintainability of the appeal, after following the above-said decision of the Supreme Court in Navin Chemicals Manufacturing & Trading Co. Ltd. - Vs Collector of Customs (1993 (9) TMI 107 - SUPREME COURT OF INDIA), and that of the Gujarat High Court in the case of in Commissioner of Central Excise v. JBF Industries Ltd., [2010 (12) TMI 437 - GUJARAT HIGH COURT], held that appeal is not maintainable. - Court is not inclined to deal with the matter, while disposing off the present appeal as not maintainable, is inclined to grant liberty to the appellant/Revenue to pursue the matter in accordance with law, if so advised. - Decide against Revenue.
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2015 (3) TMI 629 - SC ORDER
Rectification of mistake - Held that:- CEGAT has dismissed the application with the observations that the issue raised in the rectification application was not argued at the time of hearing of the main case. This aspect could not be disputed by the learned senior counsel appearing for the Department. - No error in impugned order - Rectification denied.
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