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Central Excise - Case Laws
Showing 361 to 380 of 80478 Records
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2024 (2) TMI 726 - CESTAT ALLAHABAD
Valuation - inclusion of insurance charges recovered in excess from the customers - HELD THAT:- The issue is not more res integra and has already been decided by the Hon’ble Supreme Court in the case of BARODA ELECTRIC METERS LTD. VERSUS COLLECTOR OF CENTRAL EXCISE [1997 (7) TMI 126 - SC ORDER], wherein the Hon’ble Supreme Court held the excess amount represents profit element. Once this is so, the same cannot be subjected to excise duty inasmuch as the duty is leviable on manufacture of goods and not on profit.
The impugned order set aside - appeal allowed.
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2024 (2) TMI 725 - CESTAT ALLAHABAD
Valuation of goods - manufacture of M.S. Fabricated Hot Dip Galvanized Steel Structures (Tower) - non-inclusion of freight chaged from their buyers in the transaction value in terms of Section 4(3)(d) of the Central Excise Act, 1944 - HELD THAT:- The price of goods depends upon the transaction value of goods and the element of freight has no bearing whatsoever on the value of goods. It is the case of the Department that the excess of transportation (Freight Element) of the excisable goods from the factory to the buyer’s premises was liable to be included in the assessable value of the goods for computation of duty. Further, in the delivery terms, it is mentioned freight at actual. Accordingly, the place of removal is the factory gate and not the premises of the buyers - the issue is no more res integra and is covered by the decision of this Bench in the case of M/S FLAKTWOODS ACS (INDIA) PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & S.T., NOIDA-II [2016 (9) TMI 1173 - CESTAT ALLAHABAD] where it was held that the, transfer of ownership takes place at the factory gate when the goods are delivered. Therefore, the ld. Commissioner have erred in holding that the goods manufactured and cleared by the appellant, shall not be valued under Section 4(1)(a) but under Section 4(1)(b).
As per Rule 5 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000- wherein excisable value of goods are sold in the circumstances specified in clause (a) of sub-section (1) of Section (4) of the Act, except the circumstances in which the excisable value of goods are sold for delivery at a place other than the place of removal, then the value of such excisable value shall be deemed to be the transaction value, excluding the cost of transportation from the place of removal up to the place of delivery of such excisable goods.
The Respondent had arranged for the transport of goods to buyer’s addresses and the freight charges were mentioned separately in the invoices. The goods after manufacturing in the plant of the Respondent were subject to pre-delivery inspection by the buyer and were ascertained in favour of the particular buyer before the delivery. In the invoices, the Respondent have charged sales tax and have reflected freight separately in most of the cases. The transfer of ownership takes place at the factory gate when the goods are delivered.
There are no reasons to interfere with the impugned Order-in-Appeal passed by the learned Commissioner (Appeals) and the same is sustained - appeal of Revenue dismissed.
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2024 (2) TMI 669 - CESTAT ALLAHABAD
Recovery of interest on the wrongly availed credit - penalty under Rule 15 of the Cenvat Credit Rules, 2004 - HELD THAT:- The issue involved in the present case is squarely covered by the decision of Hon’ble Supreme Court in the case of M/s Ind-Swift Laboratories Ltd. [2011 (2) TMI 6 - SUPREME COURT] following has been held Rule 14 specifically provides that where CENVAT credit has been taken or utilized wrongly or has been erroneously refunded, the same along with interest would be recovered from the manufacturer or the provider of the output service. The issue is as to whether the aforesaid word "OR" appearing in Rule 14, twice, could be read as "AND" by way of reading it down as has been done by the High Court. If the aforesaid provision is read as a whole we find no reason to read the word "OR" in between the expressions `taken' or `utilized wrongly' or `has been erroneously refunded' as the word "AND". On the happening of any of the three aforesaid circumstances such credit becomes recoverable along with interest.
It is quite evident that the N/N. 18/2012-CE (NT) clearly provides the date from which the word “or” has been substituted in Rule 14 of The CENVAT Credit Rules, 2004. It is unambiguously provided that the substitution is being made from 17th March 2012, and no retrospective effect has been given to the said amendment/ substitution - It is settled position in law that physical statute need to be interpreted in a literal sense on the basis of what have been stated in the law or statute. There is no room for indictment or according to any beneficial construction to the appellant/assessee.
It is also settled law that interest is a statutory/ contractual liability for the wrongly taken credit or is equivalent to the time value of the money/credit. It is an absolute liability as has been held by the courts in the various decisions for the same no person could claim the benefit and claim that interest as provided by the statute could not have been recovered as has been held the same is barred by limitation. It was for the appellant to have paid the interest along with the reversal of the excess credit taken. It is also observed that during the period of dispute section 11A did not provided, for recovery of interest and hence was not applicable. The recovery of interest was made in terms of Section 11AB/ 11AA which did not provided for any limitation.
As the demand made within the period of five years for recovery it is upheld, there are no merits in the submissions made for not imposition of the penalties imposed under Rule 15, in view of the decision of the Hon’ble Apex Court in the case of Rajasthan Spinning and Weaving Mills Ltd [2009 (5) TMI 15 - SUPREME COURT].
There are no merits in the appeal filed by the appellant - appeal dismissed.
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2024 (2) TMI 668 - CESTAT CHANDIGARH
Entitlement for interest on the refund sanctioned - change of opinion of the Court in a subsequent matter of another party would give any leverage to the appellants to re-open the decision which has attained finality or not.
Appellants argues that interest is a natural corollary of the refund granted and the rights of the appellants cannot be taken away for the reason that the Hon’ble Apex Court has overturned the decision in M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT] vide their decision in the case of M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA & OTHERS [2019 (12) TMI 286 - SUPREME COURT].
HELD THAT:- It is found that consequent to the passing of judgment by the Hon’ble Supreme Court in the case of M/s Unicorn Industries, the Department has raised a number of demands on the refunds already granted to various assessees; Hon’ble High Court of Jammu & Kashmir in the case of COMMISSIONER OF CGST AND COMMISSIONER OF CENTRAL EXCISE, J&K, JAMMU VERSUS NARBADA INDUSTRIAL BARI BRAHMANA JAMMU [2021 (10) TMI 1426 - JAMMU & KASHMIR AND LADAKH HIGH COURT], has held that the change of opinion of the Court in a subsequent matter of another party would not give any leverage to the appellants to re-open the decision which has attained finality.
If the Department is barred from raising demands for the refunds already granted, the appellants also cannot seek interest on the refunds already granted. It is further found that CBEC clarified vide Circular No.682/73/2002-CX dated 19.11.2002 that the provisions of Section 11B of the Central Excise Act, 1944 are not applicable in the case of Exemption Notifications No.56/2002 and No. 57/2002 both dated 14.11.2002. The findings of the learned Commissioner (Appeals) that the mechanism of refund has been put in place in order to operationalize the exemption contained in the notifications and to the extent, refunds arising out of these notifications cannot be considered to be refunds under Section 11B of the Central Excise Act, 1944, is agreed upon.
The appellants have not made out any case for grant of interest - Appeal rejected.
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2024 (2) TMI 667 - CESTAT MUMBAI
Denial of CENVAT Credit - services provided to the employee for transportation to and fro the workplace by bus, provision for canteen services, Mathadi services - denial on the ground that there was no statutory requirement/obligation to provide those services - HELD THAT:- On renovation of executive toilets and housekeeping of administrative building, the denial was on account of the fact that those were not used by the workmen nor having any nexus to the manufacture of final product and on denial of professional fee as well as maintenance of canteen building, no reason is assigned by the leaned Commissioner. This being the observation of the Commissioner on record, it is apparently cleared that he has accepted only the core work including laborious activities undertaken during the production process and excluded all other ancillary and incidental activities that go with the manufacturing process and form its integral part.
Be that as it may, when all these services are specifically held by this Tribunal and confirmed by the Appellate Courts like Hon'ble High Courts and Hon'ble Supreme Court to be valid inputs for the purpose of manufacture, there is no reason for us to depart from the judicial precedent set by this Tribunal when they themselves are integral part of manufacture process for which these services availed by the Appellant can be said to be valid input services against which credit are admissible.
The order passed by the Commissioner of Central Excise, Thane-II is hereby set aside - Appeal allowed.
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2024 (2) TMI 666 - CESTAT MUMBAI
Taxability - Excisable goods or not - waste and scrap namely paper/paper boards, corrugated boxes, aluminium foils etc., arose during manufacturing of cigarettes - HELD THAT:- Section 2(d) provides the definition of excisable goods and its explanation on “goods” includes any article, material or substance which is capable of being bought or sold for a consideration and such goods shall be deemed to be marketable but the starting lines of the Central Excise Act, 1944 says that “the Act is passed to consolidate and amend the law relating to Central Duties of Excise as it was expedient to consolidate and amend the law relating to Central Duty of Excise on goods manufactured or produced in certain parts of India” - Taking both the provisions together, it has been consistently held by the Court of law that to levy duty of Excise, both manufacturing and marketability conditions are required to be fulfilled and the same view continues even after proviso is introduced in Section 2(d).
It has also been consistently held even by the Hon'ble Supreme Court that waste and scrap, in West Coast Industrial Gases Ltd. (Res.) [2003 (4) TMI 110 - SUPREME COURT] and also in respect of bagasse and other waste products, DSCL Sugar Ltd. case [2015 (10) TMI 566 - SUPREME COURT] are not excisable articles on which duty liability can be fastened.
The following order in order to maintain consistency and predictability to the order passed by this Tribunal and to carry forward the judicial precedent set by it - Appeal allowed.
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2024 (2) TMI 665 - CESTAT MUMBAI
Refund of the excess amount that was subsequently refused to be paid to the Appellant by the Refund Sanctioning Authority - Finalization of provisional assessment - Sale through C & F Agents/Depot/Consignment agent - Appellant failed to discharge the burden of Unjust Enrichment - HELD THAT:- The refundable amount accrued in favour of the Appellant was on account of duty paid by it while making temporary clearance from the depot under Rule 7 and the duty actually received from the customers at the time of sale and clearance of goods to them. There is no dispute that the actual discount or sale at a lesser price was not extended to the customers since, the Assistant Commissioner has noted in his findings at Para 5 that Superintendent had verified the reports and statements concerning clearance of goods at the factory gate and at the C & F Agents and submitted his report that discounts were actually passed on by the C & F Agents to the dealers, as indicated in their invoices. This being so, the entire amount of excess payment of duty can be considered as borne by the Appellant alone, since duties from the customers/ dealers were actually realized at C & F Agents end and paid to the department.
In such fulfilment of the procedural requirement there would be hardly any scope that Appellant would be able to collect duty element separately from its customers & dealers to compensate the duties paid by it at the ex-clearance from the factory gate. It is apparently keeping these provisions in mind, the provision of refund of differential duty after financial assessment is codified in Rule 7 itself, in which Department would have refunded the amount on its own without any refund application being filed under Section 11(B) of the Central Excise Act, 1944 and burden of examination of passing/non-passing of duly element would have been done by itself.
Having regard to the fact that this is a case where refund should have been granted immediately upon final assessment, the following order is passed - Appeal allowed.
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2024 (2) TMI 614 - CESTAT CHANDIGARH
Classification of goods - scrap-veg-refuse - classifiable under Chapter Heading 23080000 as vegetable waste as claimed by the Appellant or potato starch classifiable under Chapter Heading 1108 as claimed by the Department? - HELD THAT:- The HSN explanatory notes clearly provide that the potato starch falling under Chapter Heading 1108 shall be physically in white powdered form, however, in the present case, the ‘scrap-veg-refuse’ is physically in the form of a wet paste. It is seen that the only reason for upholding demand against the Appellant No.1 is on the basis that the said ‘scrap-veg-refuse’ has starch contents in it. Here, it is noted that just because the product has some starch contents does not qualify it as potato starch classifiable under Chapter Heading 1108. It has been held by the Tribunal in the cases cited supra that mere presence of certain elements of starch in the residue or scrap does not take it out of the purview of a waste or residue and the Department has to bring sufficient evidence to establish that the said product is not residue or waste.
The impugned goods is not a manufactured product as per Section 3(1) of the Central Excise Act, 1944, which mandates that excisable goods must come into existence as a result of manufacturing process so as to attract the levy of excise duty; whereas in the present case, ‘scrap-veg-refuse’ came into existence pursuant to process of recycling of waste water, undertaken only to reuse the reusable water content in the waste water - further, test report of Central Revenue Control Laboratory produced by the Revenue, is not conclusive as it only states that the sample tested positive for starch without going into the details of the composition of the sample and has not given any conclusive proof.
The impugned orders are not sustainable in law and therefore, are set aside - Once, the demand itself is set aside, the question of interest and penalties on the Appellant No.1 and Appellant No.2 does not arise - appeal allowed.
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2024 (2) TMI 613 - CESTAT NEW DELHI
CENVAT Credit - duty paying documents - existence of cause of action or not - credit availed on the strength of supplementary invoices issued by the supplier as per Rule 9(1) (b) of the CENVAT Credit Rules, 2004 - fraud, collusion or wilful misstatement or suppression of facts or not - HELD THAT:- The entire cause of action against the appellant herein being that the supplementary invoices were issued by NEI in respect of the duty short paid by reason of fraud, collusion, wilful misstatement or suppression of facts. Once the order against NEI has been set aside by this Tribunal, nothing survives to support the allegations in the SCN, the Order in Original or the impugned order in this appeal.
The impugned order, therefore, needs to be set aside as the cause of action no longer exists and the appellant had correctly availed CENVAT credit on the strength of the supplementary invoices issued by NEI.
The impugned order is, accordingly, set aside - Appeal allowed.
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2024 (2) TMI 612 - CESTAT KOLKATA
Interest on delayed Refund - Interpretation of the term “relevant date,” - Relevant date, whether having a bearing with the date of the order, permitting the refund or the date of filing of the application - HELD THAT:- Section 11 BB, does not talk or uses the phraseology “relevant date,” what it alone speaks is “the date of receipt of application under subsection (1)” of Section 11B. The term relevant date is made use of in Section 11B and that too, in the context of the limitation for making of such an application for filing of a refund claim and provides for a series of situations like export of goods, goods returned for certain specified reasons, etc. or even situations not pertaining directly to manufacturers, provisional payments of duty, judicial ruling and the like. The usage of the term “relevant date” therefore, does not have any impact with reference to the date of proclamation of the admissibility of the refund claim. It is therefore obvious that what clause (ec) of Section 11B refers to, is only to enhance the limitation period, to a case where the duty becomes payable as a result of an order of the court or a direction from the appellate authority - there are no merit in the said interpretation of the learned Commissioner (Appeals).
The Hon’ble Gujarat High Court in the case of Kamakshi Tradexim (India) Pvt. Ltd. Vs. Union of India [2017 (4) TMI 223 - GUJARAT HIGH COURT]. clearly held that the liability of the department to pay interest in terms of Section 11BB, of the Central Excise Act commences from date of expiry of three months from the date of receipt of application for refund under Section 11B(i) of the act ibid - It is found that appellant is entitled to payment of interest, three months from the date of the refund application made by them.
The appeal filed by the assessee/appellant is allowed, who shall be entitled for payment of interest three months from the date of refund applications - the order of the lower authority is set aside - Appeal allowed.
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2024 (2) TMI 563 - CESTAT AHMEDABAD
Levy of penalty - Suppression of facts or not - appellant have paid the amount of proportionate credit of input and input services attributed to the exempted goods or not - non-following the procedure as laid down under Rule 6 (3) (1)/(2)/3A of Cenvat Credit Rules, 2004 nor reversal of any credit utilized for manufacture of exempted goods - HELD THAT:- The fact regarding manufacture and clearance of dutiable as well as exempted goods and availment of credit on the entire input and input services commonly used for manufacture of dutiable and exempted goods is very well on record and known to the department. Accordingly, there is no suppression of fact on the part of the appellant. Hence, the entire demand is prima-facie time bar. However, the appellant have admittedly paid the amount of Rs. 60,15,116/- and they are only contesting the penalty.
Though the demand is prima facie time bar but since the appellant have admittedly paid and not contesting such payment, the demand to the extent of Rs. 60,15,116/- is upheld and payment made thereof by the appellant is maintained. However, the appellant is not liable for any penalty.
The penalty is set aside. Needless to say that since the appellant have paid the amount of 60,15,116/- which is proportionate Cenvat credit attributed to the exempted goods belatedly, they are liable to pay the interest till the date of reversal - Appeal allowed in part.
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2024 (2) TMI 562 - CESTAT ALLAHABAD
Recovery of short paid service tax alongwith interest and penalty - Maintenance or Repair Service and Erection, Commissioning & Installation Services - wrong availment of abatement under the category of Erection, Commissioning and Installation Services and Construction Services in respect of Commercial or Industrial Buildings and Civil Structures - wrong availment of Cenvat credit on improper invoices which were not addressed to their registered account - penalty.
Short payment of service tax under the head of Maintenance or Repair Service and Erection, Commissioning & Installation Services - HELD THAT:- The issue involved in the present case is only vis-à-vis production of the documents showing the receipt/non-receipt of the amount against which the demand of Rs.4,44,939/- has been made - the said documents also not found to be available in the appeal file - one opportunity granted to the appellant to produce all these documents before the Original Authority for consideration and if satisfied that any part of the amount against which service tax has been demand, have not been received by the appellant to allow him the benefit of the same - matter on remand.
Short payment of service tax to the tune of Rs.1,20,094/- by way of wrong availment of abatement under the category of Erection, Commissioning and Installation Services and Construction Services in respect of Commercial or Industrial Buildings and Civil Structures - HELD THAT:- As the appellant failed to establish that claim for exemption under the notification no 1/2006-ST, the demand made by denying abatement for determination of taxable value for the levy of service cannot be faulted with - demand upheld.
Short payment of service tax to the tune of Rs.69,864/- by way of wrong availment of Cenvat credit on improper invoices which were not addressed to their registered account - HELD THAT:- The issue in this regard is no longer res integra and the Tribunal/Courts have decided that for claiming the benefit of input services, it is not necessary that invoices be addressed to the registered premises of the appellant - reliance can be placed in mPortal India Wireless Solutions P. Ltd. [2011 (9) TMI 450 - KARNATAKA HIGH COURT] - there are no merits in the impugned order seeking to deny the Cenvat credit on this ground.
Penalty - HELD THAT:- Penalties imposed on the appellant need to be re-determined by the Original Authority on the basis of his findings on the issues for which the matter is remanded back to the Original Authority.
Appeal is partly allowed - part matter on remand.
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2024 (2) TMI 561 - CESTAT CHANDIGARH
Refund of Education Cess and S&H Education Cess paid through PLA - appeal rejected on account of non deposit of mandatory pre-deposit - HELD THAT:- The Parallel proceedings for recovery of the self-credit/refund erroneously taken by the appellant in respect of Education Cess and S&H Education Cess during the overlapping period, were adjudicated by the original authority as well as by the appellate authorities of the department and appellant was asked to deposit an amount of Rs. 22,69,936/-. Thereafter, the CESTAT vide its Final Order [2018 (10) TMI 2020 - CESTAT CHANDIGARH] held that the appellant is entitled to take the refund of Education Cess and S&H Education Cess in view of the judgment of the Hon’ble Supreme Court in the case of SRD Nutrients Pvt. Ltd. [2017 (11) TMI 655 - SUPREME COURT] - It is also found that pursuant to CESTAT’s Order dated 25.10.2010, the appellant duly applied for refund of the amount so deposited and was granted by the original authority vide its order dated 11.03.2019 wherein the Original authority has also observed that the appellant is entitled for refund of Education Cess and S&H Education Cess and by following the decisions of the CESTAT, the Original authority has rightly granted the refund.
The High Court has stated that the decision in SRD Nutrients (P) Limited [2017 (11) TMI 655 - SUPREME COURT] had attained finality and was binding on the parties thereto. Therefore, the subsequent decision of this Court overruling SRD Nutrients (P) Limited in the case of M/s Unicorn Industries [2019 (12) TMI 286 - SUPREME COURT] cannot have a bearing on past decisions which had attained finality although they had followed SRD Nutrients (P) Limited, which was subsequently overruled in M/s Unicorn Industries. Otherwise a pandora's box would be opened and there would be no end to litigation, which is against public policy.
In view of the above, the appellant is entitled to the refund of Education Cess and S&H Education Cess and the said order has been complied with by the Revenue.
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2024 (2) TMI 560 - CESTAT BANGALORE
Classification of goods - PP FIBC bags - to be classified under Chapter Heading 3923 2990 or under 6305 3200? - undervaluation with an intention to evade payment of duty - period from February 2009 to July 2009 - HELD THAT:- With regard to classification, this Bench has already taken a view in the case of M/s. Big Bags Inda (P) Ltd. [2023 (6) TMI 1361 - CESTAT BANGALORE] wherein it has been clearly held that items PP FIBC bags are rightly classifiable under Chapter 6305 3200.
The demand of Rs.83,96,616/- along with interest and penalty is set aside - appellant has not disputed the issue of undervaluation and therefore, the demand of Rs.1,80,403/- along with interest and penalty is upheld.
Appeal allowed in part.
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2024 (2) TMI 499 - CESTAT CHANDIGARH
Determination/calculation of deduction - deduction on equalized basis - price declaration in terms of Rule 173C of erstwhile Central Excise Rules, 1944 - HELD THAT:- This Bench of the Tribunal and also the Principal Bench, New Delhi have decided the issue in favour of the appellants in their own case. Commissioner (Appeals) vide OIA dated 26.11.2015 has relied upon CBEC Circular, No. 20/90-CX-1 dated 20.08.1990, which clarified that Assessees who intend to deduct equalized sales taxes, octroi etc. from the cum duty price may be permitted to do so on the condition that such deductions are substantiated, from time to time, on the basis of information available in records regarding the actual amounts paid as taxes, octroi, etc. As long as the assessable values claimed are correct and are not manipulated in order to avoid duty, it is felt that the assessing authorities may allow deductions on account of sales tax, octroi etc.
The Hon’ble Apex Court in the case of Grasim Industries Ltd. [2018 (5) TMI 915 - SUPREME COURT] has validated the above circular even in the new valuation regime and observed the measure of the levy contemplated in Section 4 of the Act will not be controlled by the nature of the levy. So long a reasonable nexus is discernible between the measure and the nature of the levy both Section 3 and 4 would operate in their respective fields.
Both the appeals are allowed.
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2024 (2) TMI 498 - CESTAT HYDERABAD
100% EOU - method of valuation - applicability of section 4A of the Central Excise Act (CEA) 1944 - removal (of instant coffee) to institution or not - clearance of excisable goods only in bulk/pouches or tins to their C&F agents, who in turn sell the same in bulk to institutions for consumption or for use in other products - time limitation - intent to evade - HELD THAT:- This is a case where depending on the nature of packet size, the applicability of Sec 4A would have to be determined. If the sale is to the institution directly, Sec 4A would not be applicable. However, when the sale is through C&F agent, the question is whether it could be covered within the ambit of Sec 4A or otherwise. From the submissions made, it is obvious that C&F agents were only acting as freight and forwarder and the goods were all along meant for institutional buyers only. Therefore, this transaction could be considered in the nature of institutional sale in terms of explanation to the Rules. There is nothing contrary on record to prove that these goods were not meant for institutional buyers or there was any resale by such buyers. Therefore, the goods would be covered under the exemption. Similarly, for packet sizes of less than 10gm also Sec 4A would not be applicable.
For small packets cleared in bulk, in a packed condition, the Appellants have relied on the judgment of COMMISSIONER OF CENTRAL EXCISE, RAJKOT VERSUS M/S MAKSON CONFECTIONERY PVT. LTD. [2010 (9) TMI 10 - SUPREME COURT], whereby the Hon’ble Supreme Court upheld the decision of the Tribunal holding that a package containing about 100 or more individual pieces of an article like éclairs brand chocolate, each weighing 5.5gm, would qualify for exemption under Rule 34 of Standards of Weights & Measures (Packaged Commodities) Rules. Therefore, relying on this ratio, even if the instant coffee of pouches less than 10gm were cleared in bulk and not meant for retail sale, it would be exempted under Rule 34 and therefore, will not attract Sec 4A of Central Excise Act 1944.
Time Limitation - no intent to evade - HELD THAT:- The element of intention to evade is clearly missing. It is evidently a case of interpretation where they were under the impression that despite having C&F agents involved in transaction to the institutional buyers, they were still not covered within the ambit of Sec 4A. Therefore, in the facts of the case, the department has not been able to establish the grounds for which extended period can be invoked.
There was no requirement for the Appellants to follow Sec 4A for determining the duty for the payment of Central Excise Duty on the goods cleared to DTA - the Impugned Order set aside - appeal allowed.
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2024 (2) TMI 497 - CESTAT AHMEDABAD
Levy of personal penalty on the director under Rule 26 of CER - short payment of duty - appellant is a co-noticee and the main noticee i.e. Company M/s. Span Nihon Kohden Diagnostics Private Limited has settled their case under SVLDR Scheme - HELD THAT:- The penalty on the appellant being the director of the company was imposed under Rule 26 of Central Excise Rules, 2002 in connection with the case of short payment of duty by M/s. Span Nihon Kohden Diagnostics Private Limited. It is found that the case against the main notice i.e., the company is related to valuation of the goods. The allegation against the company is that the company has not paid the duty correctly and the goods were sold to the related person.
The issue of valuation is based on the strict interpretation of Section 4 of the Central Excise Act and the rules made thereunder. However, the appellant under a belief that since the goods are sold, duty is paid on the transaction value, for the clearance of goods proper invoices were raised, therefore, there is no suppression of fact on the part of the appellant’s company. The case is based on only interpretation of valuation provision of Central Excise. Therefore, it cannot be said that the director of the company has any mala fide intention. In this fact, the personal penalty on the director is not correct and legal.
The penalty under Rule 26 is set aside and appeal is allowed.
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2024 (2) TMI 496 - CESTAT AHMEDABAD
Levy of special additional duty (SAD) - DTA clearance from 100% EOU when the goods were cleared as a stock transfer to their own unit - case of the department is that since the appellant have cleared their goods to their own unit, they have not paid the VAT/Sales Tax which was construed by the department as exempted from VAT/Sales Tax - Applicability of exemption N/N. 23/2003-CE dated 31.03.2003 (Sr. No. 1) - HELD THAT:- The Tribunal in various decisions has taken a consistent view that the stock transfer from EOU to their other unit is not falling under category of sale. The said supplier will not be treated as exempted from payment of VAT/ Service Tax. Therefore, there is no violation of condition of Notification 23/2003-CE - reliance can be placed in Micro Inks [2014 (2) TMI 207 - CESTAT AHMEDABAD], VVF Ltd. [2014 (2) TMI 922 - CESTAT MUMBAI] and Sti Industries [2014 (12) TMI 1130 - CESTAT AHMEDABAD].
The demand of SAD confirmed by the adjudicating authority is not sustainable - Hence, the impugned order is set aside - Appeals are allowed.
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2024 (2) TMI 436 - SC ORDER
Condonation of gross delay of 334 days in filing this appeal - Sufficient reason for delay or not - Appeal against the order of CESTAT in M/S. KAY BOUVET ENGINEERING PVT. LTD. AND NIRAJ CHANDRA VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-II [2022 (11) TMI 1444 - CESTAT MUMBAI] setting aside the demand raised on the ground of Undervaluation, Clandestine removal etc. - HELD THAT:- The reasons cited for condonation of delay are not sufficient in law so as to condone the delay - In the circumstances, the application seeking condonation of delay is dismissed.
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2024 (2) TMI 435 - CESTAT AHMEDABAD
Valuation - inclusion of value of free material supplied by the principal manufacturer for the purpose of job work by the respondent on behalf of the supplier of the material or not - HELD THAT:- On the close scrutiny of the order it is found that the learned Adjudicating Authority has assumed that the principal manufacturer has discharged the duty on the total value of the finished product cleared by the principal manufacturer. However, no verification in this regard was made by the Adjudicating Authority.
Since the INTERNATIONAL AUTO LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BIHAR [2005 (3) TMI 132 - SUPREME COURT] case is solely based on the fact that the principal manufacturer has adjusted the duty while clearing the final product but in absence of said fact on record in the present case, reliance placed on International Auto Ltd only would not be proper.
Accordingly, for applying the ratio of International Auto Ltd the fact needs to be verified that whether the principal manufacturer has paid the duty on the total value of the final product including the value of the material supplied by the principal manufacturer to the job worker in the present case. Therefore, the matter needs to be remanded back to the Adjudicating Authority for passing a fresh order.
Appeal is allowed by way of remand to the Adjudicating Authority.
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