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Central Excise - Case Laws
Showing 121 to 140 of 80287 Records
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2024 (3) TMI 490
Method of valuation - section 4 or 4A of CEA - Packaged Drinking Water - SSI Exemption - Eligibility for abatement Notification No.2/2006, 14/2008 and 49/2008 - threshold exemption limit of Rs.150 lakhs of all the four units crossed - failure to account details of production and clearance in daily stock account - non-issuance of invoices - non-payment of duty - Demand alongwith interest and penalty - invocation of Extended period of limitation - HELD THAT:- The whole confusion has arisen for the reason that the Notification No.2/2006-CE (NT) [noticed in para 14 above] has mentioned the chapter heading in Col. 2 as CETH 22019090 as well as 22011010. As per the Tariff Act, Heading 22011010 applies to ‘Mineral Waters” and Heading 22019090 applies to ‘Packaged Drinking Water’. However, the description in column (3) of the notification is given as “Mineral Waters”. The department has therefore held that the ‘Packaged Drinking Water’ would fall within the category of ‘Mineral Water’.
A product has to be classified on the basis of Tariff Act and not on the basis of the notifications. The present notifications are Central Excise Notifications giving the details of abatement in regard to valuation of goods under Section 4A. Merely because the chapter heading, sub heading has been mentioned in Col. 2, the goods cannot be said to be assessed under Section 4A unless the goods also fall under the description given in Col.3. At the cost of repetition, in Column 3 of Notification No.2/2006, 14/2008 and 49/2008, the description of goods is given as ‘Mineral Water’ only. The process of manufacturing Mineral Water and Packaged Drinking Water is different. From the Circulars issued by the Board, it can be seen that when no minerals are added to the water, it cannot be classified as mineral water. So also, it is clarified by the Board that when the water is demineralized by reduction of minerals the same would form ‘artificial mineral water’.
The Packaged Drinking Water is entirely different product falling under separate chapter sub-heading. Further, the price of Packaged Drinking Water is less than the price applicable to Mineral Water. Again, BIS specification for Mineral Waters is different from that of Packaged Drinking Water. The appellant has been issued BIS certification for packaged drinking water as IS 14543.
The valuation of the product has to be based upon the classification of the product. When the classification unambiguously falls under 22019090 the valuation has to be on transaction value as per Section 4 of Central Excise Act, 1944. Merely because the abatement notification mentioned heading 22019090 in column (2) it cannot be said that the Packaged Drinking Water is included in the Mineral Waters. Interestingly, the department does not dispute the classification adopted by appellant for ‘packaged drinking water’. However, department construes that packaged drinking water is mineral water as per notifications 2/2006, 14/2008 and 49/2008. These notifications are issued under subsection (1) and (2) of Section 4A - The department is of the view that sub-heading 22019090 applicable to packaged drinking water when mentioned in column (2) of the notification, it is implied that packaged drinking water is to be included in the category of mineral water. This view cannot be endorsed with.
Taxation statutes cannot be interpreted on any presumptions or assumptions. In other words, there is no implied power of taxation. It has often been held by courts that subject goods is not to be taxed, unless the words of the statute unambiguously impose a tax. An ambiguity in a taxation provision is to be interpreted in favour of assesee.
In Notification 49/2008, the Sl.No.24 referred to ‘Mineral Water’ and Sl.No.25 to ‘Aerated Water’. As per amendment brought forth in Notification 49/2008 w.e.f. 1.3.2015, a new Sl.No.25A was added which referred to ‘all goods except mineral water and aerated water’. This makes it clear, that ‘drinking water’ was never intended to be specified as goods to which Section 4A would apply - the duty demand cannot sustain.
Time Limitation - Penalty - HELD THAT:- The issue is purely interpretational in nature. Further, there were earlier notices issued to the appellant on the very similar set of facts. In other similar matters, the department has set aside demand and taken the view that Packaged Drinking Water cannot be assessed under Section 4A of the Act ibid. For these reasons, the invocation of extended period cannot sustain. For the same reasons, the penalty imposed on the Executive Director of appellant-company is not warranted and requires to be set aside.
The impugned order is set aside - Appeal allowed.
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2024 (3) TMI 489
Reversal of CENVAT Credit - duty paying document - reversal sought on the ground that while WCMIL was not eligible to take Cenvat credit as the same was imported by M/s. Neo Metaliks Limited (NML) who had paid the CVD - it is alleged that invoice issued by WCMIL is not a proper document for availing the Cenvat credit - HELD THAT:- If the department had any dispute that WCMIL was not eligible to take Cenvat credit of the CVD paid by NML, it was for the Department to initiate action against WCMIL. From the appellant’s side, they have received the invoices from WCMIL and after finding that Excise Duty payments have been properly recorded in the invoices, they have taken the Cenvat credit. After converting the cooking coal to Metcoke, treating this activity not as a mere job work, but as a jobwork amounting to manufacture, they have paid the Excise Duty on the finished goods by way of PLA and RG-23A part-II as recorded by the Commissioner(Appeals).
There are no reason to interfere with the considered order passed by the Commissioner(Appeals) - appeal of Revenue dismissed.
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2024 (3) TMI 488
Liability to pay interest on the goods cleared to their sister unit in terms of proviso to Rule 9 read with Rule 8 of the Valuation Rules, 2000 - duty was levied @ 110% of the cost of production determined on the basis of annual CAS-4 certificates/guidelines of stock transferred goods in accordance with CBEC Circular No.692/08/2003-CX dated 13.02.2003 - Revenue Neutrality - HELD THAT:- The only argument that the Ld.Commissioner has been able to make out in his order is the proposition that “since the value of goods could not be determined at the time of clearance, the appellant could have opted for provisional assessment for delayed payment of duty, interest as automatic and is better considered as compensation”. For these findings, the Ld.Commissioner has relied upon the Hon’ble Supreme Court’s pronouncement in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS INTERNATIONAL AUTO LTD. [2010 (1) TMI 151 - SUPREME COURT].
At the outset it may be pointed out that the aforesaid two situations relied upon by the Ld.Commissioner(Appeals) do not cater to a situation of revenue neutrality and are concerned where price revision had happened and duty short paid was subsequently paid by way of supplementary invoices raised in favour of the customers to whom the goods were sold form the factory gate. There is marked difference with the scenarios and for this reason, the aforesaid Supreme Court’s decisions are not applicable to the facts of the present case.
It is not deniable that there ought to be an adjustment of excess duty paid against the cases of short payment of duty. However, the appellant is not seeking any such interference at this stage. It is a fact that ignoring duty paid in excess and only considering the duty that has been short paid would lead to an anomalous situation where it would tantamount to retention of undue tax by the Government in clear violation of the stipulation of Article 265 of the Constitution.
Revenue Neutrality - HELD THAT:- There are series of cases wherein it has been held that in a revenue neutral situation demand for duty does not arise - Reliance can be placed in the case of Hindalco Industries Ltd. v. CCE, Bhubaneswar-II [2023 (5) TMI 720 - CESTAT KOLKATA].
Further, even if the disputed amount of duty is paid by the appellant, question of saddling them with payment of interest clearly does not arise.
In the present matter, no case has been made out by the department - the order of the lower authority set aside - appeal allowed.
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2024 (3) TMI 453
CENVAT Credit - reversal of 6% of the value of the goods - adoption of hybrid option of post clearance availment of Ineligible CENVAT credit on inputs and payment of amount equal to 6% of the value of such exempted goods under rule 6(3) of the Credit Rules - benefit of the exemption Notification No. 30/2004-CE - HELD THAT:- Once the assessee has reversed the 6% of the value of the goods treating such goods as exempted as per the sub-rule (3D) of the rule 6 of the Rules, the condition of the Notification No. 30 of 2004 can be said to have been met and in such circumstances, the Tribunal has rightly allowed the appeal of the respondent-Assessee by quashing and setting aside the demand raised by the appellant.
Thus, no question of law, much less any substantial questions of law, arises from the impugned order passed by the Tribunal - appeal dismissed.
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2024 (3) TMI 452
Order for provisional assessment on quarterly basis and on the basis of CAS-4 certificate for a particular quarter - presumptive order - HELD THAT:- There is a loss to understand how learned Commissioner (Appeals) has come to a conclusion that the said observations were on the basis of fact because there is no supporting data available either in the orders ordering provisional assessment nor is it available anywhere in the order passed by Commissioner (Appeals).
The impugned order is a presumptive order - impugned order is set aside - appeal allowed.
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2024 (3) TMI 451
Levy of penalty under Rule 26 of Central Excise Rules, 2002 - failure to register with Central Excise - failure to maintain any record - failure to file returns - failure to make payment of central excise duty on inlay cards - HELD THAT:- The explanation in N/N. 83/94-CE dated 11.04.1994 states that for the purpose of the said notification, the expression ‘job work’ means processing of or working upon raw materials or semi-finished goods supplied to the job worker so as to complete a part or whole of the process resulting in the manufacture or finishing of an article or for operation which is essential for the aforesaid process. M/s. Leo Pack was a job worker to whom raw materials were supplied by M/s. MEC Engineers for cutting the PVC rigid roll into smaller pieces and piercing the same to make it ready for display of jewellery and, therefore, we are satisfied that the activities carried out by M/s. Leo Pack was job work. The said Notification No. 83/94-CE which exempts the goods manufactured in a factory at job work from the whole of the duty of excise leviable thereon provided that the procedures set out in the said notification and in Notification No.84/94-CE are complied with.
M/s. Leo Pack was job worker for M/s. MEC Engineers and M/s. Leo Pack was not required to pay central excise duty on the job work - the impugned order is not sustainable insofar as the same relates to confirmation of demand and imposition of penalty on M/s. Leo Pack.
Appeal allowed.
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2024 (3) TMI 450
Reversal of CENVAT Credit - commission amount paid to commission agent - Business Auxiliary Service or not - Extended period of limitation - HELD THAT:- The issue is no more res integra. This Bench in PRINCIPAL COMMISSIONER OF CENTRAL EXCISE, KOLKATA – IV VERSUS M/S. HIMADRI SPECIALITY CHEMICAL LIMITED [2022 (9) TMI 1213 - CALCUTTA HIGH COURT] has held the issue relating to eligibility of credit on commission agent services is no longer res-integra inasmuch as this Tribunal in M/S ESSAR STEEL INDIA LTD. VERSUS COMMISSIONER OF C. EX. & SERVICE TAX, SURAT-I [2016 (4) TMI 232 - CESTAT AHMEDABAD], as also relied by the appellant, has held that the above amendment would be applicable retrospectively and would cover cases for the past period also.
Extended period of limitation - HELD THAT:- The Department was in full knowledge of the transactions made by the Appellant by May 2014 itself. Therefore, the Department had no reason to delay the issue of Show Cause Notice by another two and half year. The Department has not made out any case of suppression on the part of the Appellant except for relying on the COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD – II VERSUS M/S CADILA HEALTH CARE LTD. [2013 (1) TMI 304 - GUJARAT HIGH COURT] relied by the Hon’ble Gujarat High Court. Therefore, the confirmed demand is not sustainable even on account of limitation.
Appeal allowed.
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2024 (3) TMI 449
Levy of interest under Section 11AB of the Central Excise Act, 1944 on supplementary invoices by invoking extended period of limitation - appellant has availed irregular cenvat credit as well as failed to pay the duty on certain goods on certain instances - HELD THAT:- The said issue has been dealt by this Tribunal in the case of CCE VERSUS TVS WHIRLPOOL LTD. [1999 (10) TMI 701 - SC ORDER] wherein it has been held that it is only a reasonable time that the period of limitation that applies to a claim for the principal amount should also apply to the claim for interest thereon and further in the case of HINDUSTAN INSECTICIEDES LTD. VERSUS COMMISSIONER CENTRAL EXCISE, LTU [2013 (8) TMI 225 - DELHI HIGH COURT], again the said issue was examined by the Hon’ble Delhi High Court wherein the Hon’ble High Court has held A reading of the aforesaid paragraph would show that in the said case notice of payment for interest was issued after four years and it was held that it was beyond a reasonable period and the department could recover the amount from the Assessing Officer, who had not taken steps for four years and not from the respondent-assessee therein. The finding of the Supreme Court on interpreting the applicable Act was that no limitation period was prescribed, therefore, proceedings for recovery could be initiated within a reasonable time.
The extended period of limitation is not invokable for the facts and circumstances of the case as the appellant has paid the duty on the supplementary invoices during the period 2008-09 and the same shown in their records and audit was also conducted during the period from 15.11.2009 to 03.12.2009.
The extended period of limitation is not invokable. Consequently , the demand of interest on supplementary invoices is barred by limitation.
The impugned order quo demanding interest on the duty paid on supplementary invoices set aside - appeal allowed.
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2024 (3) TMI 448
Recovery of CENVAT Credit alongwith interest and penalty - Process amounting to manufacture or not - Appellants are importing copper coated wires and they were carrying out processes like cutting, rewinding, branding, testing and repacking on the same - HELD THAT:- The issue is no more res integra. The Mumbai Tribunal in M/S. GEE LTD. AND S.M. AGARWAL VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE-I [2022 (10) TMI 957 - CESTAT MUMBAI] in the appellant’s own case has followed the judgement of Hon’ble Bombay High Court in the case of Commissioner of Central Excise, Pune-III vs. Ajinkya Enterprises and has held the demand made seeking to recover the Cenvat credit from the appellants which is in respect of the processed goods actually cleared by them on payment of central excise duty has to be set aside.
The demand set aside - appeal allowed.
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2024 (3) TMI 447
Clandestine removal - failure to declare the manufactured quantity - reliance placed on consumption norms worked out by Dr. Batra of IIT, Kanpur - main ground taken by the Revenue was that the electricity consumption as worked out by Dr.Batra, of IIT, Kanpur does not match with the output shown by the Appellant - Extended period of limitation - HELD THAT:- From the Order-in-Original para 9.2 it is seen that the Adjudicating authority has relied on the report of Dr.Batra of IIT, Kanpur to come to a conclusion that excess quantity has been manufactured and cleared without payment of excise duty. There is nothing to indicate in the Show Cause Notice and the Order-in-Original that the Department has brought in any corollary evidence to the effect that the Appellants have procured raw materials on cash basis or cleared the goods on cash basis and no private records have been seized nor any investigation has been taken up on this ground.
In the case of COMMISSIONER OF C. EX., MEERUT-I VERSUS RA CASTINGS PVT. LTD. [2010 (9) TMI 669 - ALLAHABAD HIGH COURT], the Hon’ble Allahabad High Court has held we are of the view that the findings of the Tribunal are based on the material on record and they cannot be said to be without any material and perverse. We find that the Revenue has invoked the proviso to Section 11A(1) of the Act but no case has been made out in the show cause notices or in the adjudication order that there were any mis-statement, suppression of fact or fraud on the part of the respondents. No substantial question of law arises from the order of the Tribunal.
The facts in the present case are similar and hence, the ratio of the decision is squarely applicable. Therefore, following these decisions, the confirmed demand is not sustainable on merits. Accordingly, the Appeal allowed on merits.
Extended period of limitation - HELD THAT:- There are force in the Appellant’s argument that the Department has not come out with any evidence towards suppression so as to invoke the extended period provisions. Therefore, the confirmed demand for the extended period is liable to be set aside on account of limitation. Accordingly, the confirmed demand for the extended period is set aside on account of limitation also.
The Appeal is allowed both on merits as well as on limitation.
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2024 (3) TMI 446
CENVAT Credit - inputs used in such Railway tracks - nexus with manufacturing and clearing activities or not - HELD THAT:- Hon’ble Chhattisgarh High Court in the case of PR. COMMR. OF CUS. & C. EX., RAIPUR VERSUS STEEL AUTHORITY OF INDIA LTD [2018 (2) TMI 2007 - CHHATTISGARH HIGH COURT], has held After hearing Learned Counsel for the parties, we are not able to persuade ourselves to take any different view of the matter than the one which has been taken by this Court in the matter of AMBUJA CEMENTS EASTERN LTD. VERSUS COMMISSIONER OF C. EX., RAIPUR [2010 (4) TMI 429 - CHHAITISGARH HIGH COURT] where Welding Electrode has already been considered to be input for allowing CENVAT Credit.
Appeal filed by Revenue dismissed.
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2024 (3) TMI 402
Process amounting to manufacture or not - benefit availed on Henko Stain Champion’ Detergent Powder cleared from the factory on payment of duty in cash - Denial of benefit of N/N.21/2007-CE dated 25.04.2007 on the ground that goods which have been subjected to packing or repacking only and is not subject to any other process amounting to manufacture - Invocation of Extended period of Limitation - HELD THAT:- At the time of filing of the refund claim by the appellant in terms of Notification No.32/99-CE dated 08.07.1999, the refund claims were sanctioned by passing a speaking order during the period from 25.04.2007 to 31.01.2008. In that circumstances, a showcause notice issued to the appellant by invoking extended period of limitation on 15.03.2012, is not sustainable as held by the decision of the Hon’ble Jammu & Kashmir High Court in the case of COMMISSIONER OF CENTRAL GST AND CENTRAL EXCISE VERSUS KRISHI RASAYAN EXPORTS PVT. LTD. [2023 (7) TMI 661 - JAMMU AND KASHMIR AND LADAKH HIGH COURT], wherein the Hon’ble High Court has held The revenue, if it is of the opinion that the Adjudicating Authority has made an erroneous refund in favour of assessee to which it was not otherwise eligible, can avail the remedy of filing appeal or revision under the Act. So long as the orders stand as having attained finality, the same cannot be tampered with by the Adjudicating Authority by launching collateral proceedings purportedly under Section 11A of the Act.
As this case also, the demand has been raised against the appellant by invoking extended period of limitation whereas initially, the refund claims were sanctioned to the appellant by passing a speaking order, therefore, the extended period of limitation is not invokable. Accordingly, the impugned demand is set aside.
Appeal allowed.
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2024 (3) TMI 401
Area Based Exemption - Rejection of application for special rate of value addition at the rate of 73% - payment of excise duty through PLA after utilizing the CENVAT credit available as per N/N. 20/2007-CE dated 25.04.2007 - HELD THAT:- From formulae prescribed in N/N. 20/2008-CE dated 27.03.2008, it is clear that for fixation of special valuation rate, the actual cost of raw materials is to be considered only not the notional value. In that circumstances, as the Adjudicating Authority has considered the notional cost of raw materials, which is not correct, therefore, the impugned order is set aside.
The impugned order set aside - Appeal allowed.
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2024 (3) TMI 342
Scope of SCN - no demand for penalty - Default in making the payment beyond thirty days from the due date of payment - bar to utilize the CENVAT Credit account for payment of duty - Rule 8(3A) of the Central Excise Rules, 2002 - HELD THAT:- It is found that in the Show Cause Notice, there is no proposal to impose penalty of Rs.7,43,28,193/-. The Show Cause Notice has not even demanded the said amount as duty from the respondent.
The appeal filed by the Revenue is not maintainable before this Tribunal since the appeal has been filed in a cyclostyled manner without appreciating the facts of the case and without examining the impugned order.
The appeal filed by the Revenue is dismissed.
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2024 (3) TMI 341
Valuation - Exclusion of trade discount that was contracted for supply to stations of Thane Municipal Transport (TMT) from assessable value - to be included as additional consideration or not - HELD THAT:- The contractual arrangement includes facilitation of the appellant by their customer and that it is the appellant who has foregone consideration to the extent of ‘trade discount’ which the lower authorities have convinced themselves to be costs of such facilitation. In thus loading this cost to the assessable value, the original authority has failed to determine the value thereof by reference to Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 which is essential for validity in law.
Moreover, the issue was considered by the Tribunal in their own case [2016 (9) TMI 782 - CESTAT MUMBAI] on sale effected to ‘oil marketing companies (OMC)’ and it was held that appellants’ case is squarely covered under new Section 4(1)(a) of CEA which essentially permit different transaction values, unlike normal sales price existed prior to 1-7-2000, which has also been explained by C.B.E. & C., vide its Circular No. 354/81/2000-TRU, dated 30-6-2000 in Para 5.
The reliance placed by Learned Authorized Representative on the decision in re re Bharat Petroleum Corporation Ltd [2009 (6) TMI 166 - CESTAT, MUMBAI] does not advance the case of Revenue inasmuch as the two transactions therein were held to be akin to barter. Here, it is alleged that money value of the facilities, treated as equivalent to ‘trade discount’, be added back to the transaction value. These fall under different provisions of the Rules supra and the lower authorities have not amplified the lack, and remedy, which was sought to be invoked.
The impugned order lacks validity and must be set aside - Appeal allowed.
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2024 (3) TMI 280
Evasion of duty- demand confirmed on the ground that units floated and controlled by two persons and materials and capital goods exchanged and cash seized - the Tribunal has remanded the matter to the Adjudicating Authority - HELD THAT:- The finding by Tribunal is just and proper and appropriate, having regard to the reasons assigned for the same.
As far as the aspects on which the remand has been made, it is found that the Adjudicating Authority would now have to reconsider the said aspects in accordance with law and in light of the observations made by the Tribunal in the impugned order.
Appeal dismissed.
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2024 (3) TMI 279
100% EOU - benefit under Notification No. 2/95 – C.E. dated 04.01.1995 availed - failure to achieve a positive NFEP - invocation of extended period of limitation - HELD THAT:- The Appellant is a 100% EOU engaged in the manufacture of excisable goods and has availed benefit under Notification No. 2/95 – C.E. dated 04.01.1995 which provides exemption on 50% of the export goods allowed to be sold in DTA upon fulfillment of terms as provided under EXIM Policy. The entire demand for custom duty has been raised out of the Audit Objections by the Audit conduct by the CERA Officials in 2008 for the transactions pertaining to the time period October 2000 – December 2000. It cannot be denied that the Department had sufficient time to conduct investigations pertaining to the issues raised before the lapse of ten years for that is for the time period for which the show cause notice has been issued.
It is further noted that the lower authorities have only relied on B-17 Bond executed by the Appellants to invoke larger period of limitation thereby going beyond the scope of issues raised in the Show cause Notice that the Department was unable to provide cogent reason to invoke the same. The fact that the adjudicating authority has dropped the penalty as proposed in the Show Cause Notice shows that the demand is patently time barred and there in no evidence on record to establish suppression of facts or malafide intention to evade duty. Therefore the entire demand in this case is time barred as for the period of October 2000 – December 2000 show cause notice was issued on 15.02.2010 which is not only beyond normal limitation but also that the Department has incorrectly invoked extended period of limitation without adducing evidence or cogent reason in support of their claim.
The demand is barred by limitation - the impugned order set aside - appeal allowed.
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2024 (3) TMI 278
Clandestine removal of goods - wrongful availment of Cenvat Credit - demand on the basis of statements recorded of the Appellants - corroboration of tangible evidence or not - appellant submits that demand confirmed by the Department is an extrapolated figure based on the calculation of production by taking the standard production per batch and simply that by the number of batches appearing in the Finished product analysis Dilatometer Register.
HELD THAT:- The Department has not adduced any evidence in support of their claims. The Department has relied on the theoretical calculation of production and multiplying such assumed standard with no. of batches so appearing in the FDADR Register furthermore relying on some ‘chits’ apparently indicating proportion of raw material to be used for production process and drawn inference that the Appellants are removing goods in a clandestine manner. Clandestine removal of goods is a serious allegation and the reliance of Department on such incorporeal data to support their claim is perverse. Furthermore, no evidence has been brought on record to show any excess procurement of raw material for the alleged differential production by the Appellants. Corroborative evidence such as evidence of other inputs required for manufacture, transportation, details of buyers etc. have not been provided by the Department.
The Tribunal took note of the decision in KAMAL BIRI FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, MEERUT [1997 (7) TMI 593 - CEGAT, NEW DELHI] wherein view has been taken that the allegations of clandestine removal of the goods will not stand established when based on the entries made by the assessee’s employee in a diary or on the basis of third party’s record in the absence of any corroborative evidence.
Similar stance has been taken by this Tribunal in the case of M/S AMBICA ORGANICS, SHRI ANIL KUMAR GUPTA, SHRI VINOD KUMAR GUPTA VERSUS COMMISSIONER, CENTRAL EXCISE & CUSTOMS, SURAT-I [2015 (3) TMI 825 - CESTAT AHMEDABAD] wherein it was held that statements relied on to establish clandestine removal of goods should hold evidentiary value and with no adequate material available on record, clandestine removal of goods cannot be established.
Thus, the existence of corroborative evidence is essential in order to establish clandestine removal of goods and the same cannot be merely based on assumptions and presumptions. In the present case the Department has not adduced such well-fortified evidence that strengthen the claims of the Department.
CENVAT Credit - ground for denying Cenvat Credit has been made without recording any statement of the Appellant’s staff/directors and without adducing corroborative documentary evidence pertaining to non - utilization of imported Zir Flour - HELD THAT:- There is no dispute as regards import of material for which credit was taken, took place and goods reached the job worker at their premises for which transportation charges were paid, bills were raised by the job workers post which goods were received by the Appellant at their premises. It is observed that it is apparent on record that the Cenvat Credit availed by the Appellant was post such receipt from the job worker. There is no material on record to show that the goods were not utilized as inputs therefore there is no wrongful availment of Cenvat Credit when the records of the Appellant reflect due compliance towards all requirements as prescribed under the Cenvat Credit Rules, 2004 for availing such Credit.
Under the present facts and circumstances there is no merit in the claim of the Department towards clandestine removal of goods and wrongful availment of Cenvat Credit - the impugned order is set aside - appeal allowed.
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2024 (3) TMI 277
CENVAT Credit - input services or not - warranty free services - HELD THAT:- The identical issue in the appellant's own case has been considered at length by this Tribunal and thereafter, this Tribunal has allowed the appeals of the appellant - Reliance can be placed in the case of JCB INDIA LTD. VERSUS CCE- DELHI-IV [2023 (5) TMI 133 - CESTAT CHANDIGARH] where it was held that The appellant has correctly availed cenvat credit on the amount of service tax paid for the services provided by the dealers to the customers on behalf of the appellant for fulfilling the warranty obligations of the appellant.
The impugned orders are not sustainable in law and therefore set aside - appeal allowed.
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2024 (3) TMI 276
Clandestine Removal - process loss - yield of 79% on deployment of 228584 kgs of raw materials in 2006-07 for production of 146295 kgs of finished product leaving 48002 kgs unexplained - recovery alongwith penalty - HELD THAT:- The appellant had deployed various raw materials in different proportions for manufacture of finished goods. The lower authorities, without considering the material mix and reaction loss of each separately, have merely presumed that weight of raw materials should be found to match that of finished goods and that, in the event of gap if any, the difference should be explained.
There are no provision in Central Excise Act, 1944 that authorises duty recovery in such circumstances. There is no allegation of clandestine removal in the show cause notice let alone any evidence thereon. Even if such gap was ascertained, and explanation not found acceptable, this could, at best, be used to corroborate alleged illicit removal which is not alleged here. Effectively, duty is sought to be collected on what be alleged to be inefficiency which the statute does not envisage.
There are no reason to sustain the demand, interest and penalty - the impugned order set aside - appeal allowed.
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