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Central Excise - Case Laws
Showing 81 to 100 of 225 Records
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2015 (3) TMI 906 - GOVERNMENT OF INDIA
Denial of rebate claim - Failure to produce the copies of the BRCs - entire sale proceeds in respect of the some exported goods were not realized by the respondents within the period allowed under the FEMA, 1999 including any extension of such period - Held that:- The explanation given by respondents for short realization cannot be accepted since duty is required to be paid on transaction value of goods (exported) determined under Section 4 of Central Excise Act, 1944. Since the transaction value as shown in the BRCs was less than the value declared in ARE-1 form, the department has rightly held that respondent paid excess duty on such clearance. - Government notes that this issue has already been decided by GOI order passed in the case of CCE, Nagpur v. Sri Bhagirath Textiles Ltd. reported as [2005 (7) TMI 120 - GOVERNMENT OF INDIA].
It has been stipulated in the Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and the C.B.E. & C. Circular No. 510/06/2000-CX, dated 3-2-2000 that rebate of whole of duty paid on all excisable goods will be granted. Here also the whole duty of excise would mean the duty payable under the provision of Central Excise Act. Any amount paid in excess of duty liability on one’s own volition cannot be treated as duty. But it has to be treated simply a voluntary deposit with the Government which is required to be returned to the respondent in the manner in which it was paid as the said amount cannot be retained by Government without any authority of law. - Government set aside the impugned orders-in-appeal and restores the impugned orders-in-original. Government further observe that excess paid amount of duty in case of short realization of export sale proceeds may be returned to the respondent as recredit in their Cenvat credit account. - Decided in favour of assessee.
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2015 (3) TMI 905 - GOVERNMENT OF INDIA
Denial of rebate claim - Valuation of goods - Valuation as per section 4 or section 4A - Jurisdiction of GOVERNMENT OF INDIA - Held that:- there is no dispute with regard to export of goods and compliance of provisions of Rule 18 of Central Excise Rules, 2002 r/w Not. No. 19/2004-C.E. (N.T.), dated 6-9-2004. The conditions and procedure stipulated in Not. No. 19/2004-C.E. (N.T.) stands fully complied with and export of duty paid goods is also established. So, there is no violation of any statutory provisions relating to rebate claim as far as Rule 18 of Central Excise Rules, 2002 r/w Not. No. 19/2004-C.E. (N.T.), dated 6-9-2004 is concerned.
The rebate claims of ₹ 71,05,078/- was sanctioned whereas balance amount of ₹ 2,85,41,026/- was rejected by original authority which account for 80% of total rebate claim of ₹ 3,56,46,104/-. However, Commissioner (Appeals) has accepted the valuation of goods done under Section 4A and held that duty was correctly paid on the value determined under Section 4A. So, he allowed the full rebate claim. Since the 80% of duty paid is disputed on account of valuation dispute, the valuation issue is the major issue in this case. So, the impugned order cannot be called as only relating to rebate claim but it also relates to valuation dispute which is the major issue in this case matter. Government has no jurisdiction to pass order in respect of Order-in-Appeal relating to valuation issue in terms of Section 35EE r/w provision (i) (ii) of Section 35(b)(1) of Central Excise Act, 1944. The jurisdiction to decide valuation issue lies with the Hon’ble CESTAT. - Decided against Revenue.
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2015 (3) TMI 868 - CESTAT AHMEDABAD
Denial of CENVAT Credit - Cenvat Credit is available only to the person, to whom the goods have been sold by the manufacturer and not to any other person - Held that:- Rule 9 of Rules 2004 provides that cenvat credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of an invoice issued by a manufacturer of inputs or capital goods from his factory or depot or from the premises of the consignment agent of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer. Rule 3 of the said Rules 2004 provides a manufacturer shall be allowed to take credit the specified duty as mentioned therein, on any input received in the factory of manufacturer. In the present case, the appellant availed credit on the basis of invoice issued under Rule 9 of the said Rules. There is no dispute that the input received in the factory of the appellant. In any event, the manufacturer of input supplied the goods in DTA. Thus, there is no scope to use the documents by the overseas company. So, the denial of cenvat Credit is not justified.
Appellants name was mentioned in the invoices and the goods were delivered at the appellant s factory and the cenvat credit was availed on the basis of invoices as mentioned under Rule 9 of Rules 2004 and the input utilized in the manufacture of final product. There is no dispute that the entire consignment was received by the appellant. So, there is no reason to deny the cenvat credit to the appellant. Accordingly, the impugned order is set aside. - Decided in favour of assessee.
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2015 (3) TMI 867 - CESTAT AHMEDABAD
Clandestine removal of goods - Shortage of goods found - Charges framed on the basis of statement of appellant no. 2 - Held that:- appellant No.1 had taken stand that Shri Hakim Thanawala is not concerned with the appellant firm. It seen from the show cause notice that Central Excise officers visited the appellant s premises on the basis of intelligence and thereafter how they accepted Shri Hakim Thanawala as Director of the Company when the appellant firm is registered with the Central Excise authorities as partnership firm. It is strange that the Central Excise officers visited the premises of the assessee and conducted stock verification and recorded the statement without verifying the identity of a person. There is no material available on record to establish that Shri Hakim Thanawala has any connection with the appellant firm. - it is the responsibility of the Revenue to identify the person while recording the statement. It is seen that no statement of any employee of the appellant firm was recorded. The Central Excise officers visited the premises of the appellant firm on 06.3.2007 and show cause notice was issued on 02.6.2009 and no verification was conducted or otherwise. Thus, the demand of duty on the basis of the stock statement and statement of a person, who has no relation with the Appellant firm, can not be sustained. - However, reduced penalty on the 2nd appellant is sustained. - Decided partly in favour of appellants.
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2015 (3) TMI 866 - MADRAS HIGH COURT
Clandestine removal of goods - non-recording of the lorry being put to use for weighment - Held that:- Tribunal on the statement drawn in the mahazar and other records on which we did not want to dwell further to come to a different conclusion. Nevertheless, before this Court, the appellant while seeking to consider the first question of law, has failed to bring to our attention the plea of the Department in the appeal filed before the Tribunal that non-production of the mahazar witness was not fatal to the case, by producing the memorandum of appeal filed by the Department before the Tribunal. - In the absence of any such material, there is no possibility for this Court to consider this issue at all. The next question is whether stock taking conducted on eye estimation is fatal to the case of the Department. We find that the order of the Tribunal is not on the basis of visual inspection, but based on mahazar records recording the shortage of goods, which has been done in the presence of the independent witnesses and such shortage was supported by the unretracted statement of Mr.Balaji, Manager of the assessee company. In this view of the matter, the non-recording of the correct quantity of goods in the statutory record, viz., RG.1 register maintained by the assessee establishes the case for demand of duty, more so in a case of statement accepting Central Excise violation. - Decided against assessee.
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2015 (3) TMI 865 - MADRAS HIGH COURT
Condonation of delay - Delay of 38/39 days in filing appeal - Held that:- Court is not inclined to agree with the finding of the Tribunal refusing to condone the delay of 38/39 days in filing the appeal. The reason for the delay has been explained by the appellant - From the explanation offered by the appellant, it is clear that a decision was taken by a Committee of Commissioners and, therefore, there is no scope for the concerned Commissioner to interdict and seek for earlier review by the Committee. The delay was not within the hands of the concerned Commissioner. The decisions of the Supreme Court in Collector, Land Acquisition Anantnag & Anr. - Vs MST Katiji & Ors. (1987 (2) TMI 61 - SUPREME Court) and State of Nagaland Vs LIPOK AO (2005 (4) TMI 321 - SUPREME COURT OF INDIA) relied on by the counsel for the appellant is squarely applicable to the facts of the present case as sufficient cause has been shown for condoning the delay. In the circumstances, without going into the questions of law raised, this Court is of the considered view that the order passed by the Tribunal is liable to be set aside. - Order of Tribunal is set aside - Decidedin favour of Revenue.
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2015 (3) TMI 864 - KARNATAKA HIGH COURT
Appointment of ex-departmental officers are Authorised Representatives before the CESTAT - Petition seeking to declare that Rule 9 of Customs (Appeals) Rules, 1982 is ultra vires Customs Act, 1962 and Rule 12 of Central Excise (Appeals) Rules, 2001 is ultra vires the Central Excise Act, 1944 - Held that:- submission of that under Section 33 of the Advocates' Act, 1961, it is only an advocate enrolled therein, unless permitted by any other law, is entitled to practice before any Court or authority and since neither Customs Act, 1962 nor the Central Excise Act, 1944 relaxes this requirement, Rule 9 of the Customs (Appeals) Rules, 1982 and Rule 12 of the Central Excise (Appeals) Rules, 2001 are ultra vires the two enactments, is but a specious plea. So also, the second submission that a person enrolled as an advocate is entitled to practice before any authority or Court, unless there is a law to the contrary, and therefore a person possessing a degree in law alone is entitled to appear as "Authorized Representative", is yet another specious plea. The aforesaid provision of both the statutes permit legal practitioners to appear before officers and Appellate Tribunal as "Authorized Representative" and therefore, petitioner cannot have any grievance. A person enrolled as an advocate under the Advocates' Act, 1961 is not ipso facto entitled to a right of audience in all Courts unless Section 30 of that Act is first brought into force. A right of an advocate brought on the roles to practice is, therefore, just what is conferred on him by Section 14(1 )( a) and (c) of the Bar Council's Act, 1926. We may notice that apart from Article 22(1) of the Constitution, no litigant has a fundamental right to be represented by a lawyer in any Court, since such a right is envisaged in an accused who is arrested and detained in custody. Reference may be made to the observations of three Judge Bench decision of the Apex Court in Lingappa Pochanna Appelwar & others v.s . State of Maharashtra & another [1984 (12) TMI 321 - SUPREME COURT], as also Paradip Port Trust, Pradip vs. Their Workmen [1976 (9) TMI 174 - SUPREME COURT].
Group 'A' on retirement or resignation after having served for not less than three years in any capacity, from appearing as an authorized representative, in any proceeding before a Central Excise Officer for a period of two years from the date retirement or resignation.. Thirdly, the possibility of bias or likelihood of bias must be shown to be present, while, what is canvassed is a mere suspicion of bias which could hardly be a foundation for further examination of the action. In the circumstances, Group 'A' officers on retirement or resignation from the department when appointed as special counsel to appear as authorized representative of the department, per se, cannot be said to be in real danger of bias, but characterized as only a probability or even a preponderance of probability of such a bias, hardly affecting the decision, muchless , adversely. Fourthly, in the absence of a challenge to the Rules over legislative competence, the Rules in question primarily based upon public perception and normal behaviour of an ordinary human being cannot be said to be ultra vires the provisions of both the Acts.
There can be no stress on appeals beings heard only on "Substantial Questions of Law", so as to draw a parallel to a proceeding before the National Tax Tribunal and deny persons set out in both the Rules in question, to represent as "Authorized Representatives" for the department. - there is always a presumption in favour of constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; it must be presumed that the legislature understands correctly, appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; and that the legislature is free to recognized degrees of harm and may confine its restrictions to those cases where the need is deemed to be clearest - Decided against Appellant.
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2015 (3) TMI 863 - GOVERNMENT OF INDIA
Denial of rebate claim - Denial on ground that amount paid on part of ARE-1 value over and above the FOB value is not the duty of Central Excise but is to be treated as "excess payment" - rebate in terms of Rule 18 of the Central Excise Rules, 2002, is the rebate of Central Excise Duty paid on the exported goods - Held that:- As per section 35 EE of Central Excise Act, 1944 Central Government on the application of any person aggrieved by any order passed under section 35 A where order is of the nature referred to in the first proviso to section 35B(1) annul or modify such order provided that Central Government in its discretion refuse to admit an application in respect of an order where amount of duty or fine or penalty determined by such order does not exceed five thousand rupees. In this case disputed rebate claim amount is only ₹ 3,624/- and therefore in view of provisions of first proviso to section 35EE(1), Government is not inclined to accept said revision application and rejects the same. - Decided against assessee.
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2015 (3) TMI 862 - GOVERNMENT OF INDIA
Denial of rebate claim - applicant a merchant-exporter has declared in impugned ARE-1 that they are availing benefit of 21/2004-C.E. (N.T.), dated 6-9-2004 and Notification 43/2001-C.E. (N.T.), dated 26-6-2001, however they failed to follow the mandatory provisions as required under Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 and Notification 43/2001-C.E. (N.T.), dated 26-6-2001 - Held that:- applicant prepared the ARE-1 under claim of rebate and paid applicable duty at the time of removal of goods. The original authority in rebate sanctioning orders have categorically held that applicants have exported the goods under claim of rebate under Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and also that range Superintendent confirmed the verification of duty payment. As such, the exported goods are duty paid goods. Once, it has been certified that exported goods have suffered duty at the time of removal, it can be logically implied that provisions of Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 and Notification 43/2001-C.E. (N.T.), dated 26-6-2001 cannot be applied in such cases. There is no independent evidences on record to show that the applicant have exported the goods without payment of duty under ARE-2 or under Bond.
Simply ticking a wrong declaration in ARE-1 form cannot be a basis for rejecting the substantial benefit of rebate claim. Under such circumstances, the rebate claims cannot be rejected for procedural lapses of wrong ticking. In catena of judgments, the Government of India has held that benefit of rebate claim cannot be denied for minor procedural infraction when substantial compliance of provisions of notification and rules is made by claimant. - Government finds that once the merits of rebate claims, found to be in favour of applicants, the sanction of same cannot be treated as erroneous and hence, no recovery is warranted. - Decided in favour of assessee.
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2015 (3) TMI 833 - GOVERNMENT OF INDIA
Denial of rebate claim - Assessee paid duty @10% instead of @ 4% under Notification No. 4/2006, dated 1-3-2006 - Revenue contends that assessee did this in order to provide higher amount of rebate for the merchant-exporter - Held that:- The plain reading of instructions issued by C.B.E. & C. regarding assessment of export goods, reveals that the export goods shall be assessed to duty in the same manner as the goods cleared for home consumption are assessed. Further the classification and rate of duty should be as stated in Schedule of Central Excise Tariff Act, 1985 read with any exemption notification and/or Central Excise Rules, 2002. These C.B.E. & C. Instructions clearly stipulate that applicable effective rate of duty will be as per the exemption notification. The said instruction is issued specifically with respect to sanctioning of rebate claim of duty paid on exported goods.
Duty was payable @ 4% on the export goods also and rebate cannot be granted on the duty paid in excess of effective rate prescribed in the Notification No. 4/2006-C.E., dated 1-3-2006 as amended, as stipulated in the above said C.B.E. & C. Instructions.
Respondent are clearing goods for home consumption on payment of duty @ 4% or 5% in terms of Notification No. 4/2006-C.E. as amended. The above said C.B.E. & C. Instructions state that export goods are to be assessed in the same manner as the goods for home consumption. So, respondent has to assess all goods whether cleared for export or home consumption in a same manner. He cannot assess export goods as higher rate of duty @ 10% and goods cleared for home consumption at lower rate of duty @ 4% or 5%. He has to choose any one notification and assess all clearance of goods in the same manner even if there are two effective rates of duty as per two notifications. In this case, the situation is different since Notification No. 2/2008-C.E. as amended prescribed duty at General Tariff rate of 10% whereas effective rate of duty is 4% or 5% vide Notification No. 4/2006-C.E. as amended. Even the Joint Secretary (TRU) C.B.E. & C. D.O. Letter, dated 29-2-2008 stipulated that rate of duty beneficial to assessee have to be extended. The said letter has not allowed payment of duty under both notifications. Assessee could have opted for one notification for all clearance even if it is considered as case of applicability of two notifications.
Government finds that the respondents are not eligible to claim of 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. 4/2006-C.E., dated 1-3-2006 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. 4/2006-C.E., dated 1-3-2006 as amended, on the transaction value of exported goods determined under Section 4 of Central Excise Act, 1944. The amount of duty paid in excess of duty payable at effective rate of 4% or 5% is to be treated as voluntary deposit made by manufacturer with the Government. The excess paid amount may be allowed to be re-credited in the Cenvat credit account of the manufacturer subject to compliance of the provisions of Section 12B of Central Excise Act, 1944. - Decided in favour of Revenue.
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2015 (3) TMI 826 - CESTAT MUMBAI
Duty demand - Carpentry work - appellant has manufactured various items of furniture without obtaining Central Excise registration and without payment of excise duty and without following any Central Excise procedure - Manufacturer or not - Bar of limitation - Held that:- appellant is not having control over the sub-contractor. Therefore, the appellant has clarified the test laid down by thisTribunal in the case of Shri Shankar Re-rolling Mills (1996 (8) TMI 229 - CEGAT, MUMBAI). However, other learned Judge has held that when the agreements were not produced during the investigation and the agreements produced before the Tribunal do not even speak anything about the scope of the work and the invoices produced very clearly indicate that the invoices are from labour contractor and are for carpentry labour charges, the appellant only can be considered as manufacturer. This will also be keeping in line with the practice for such industry.
Invocation of extended period of limitation - Held that:- in the show cause notice there is no allegation against the appellant that the appellant has not paid the duty by way of willful misstatement or suppression of facts or having mala fide intention not to pay central excise duty in contravention of the provisions of the Central Excise Act/Rules. In these circumstances, again we hold that, as held by HMM Ltd. (supra), the extended period is not invokable, hence the demands raised in the show cause notice are barred by limitation. - Decided in favour of assessee.
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2015 (3) TMI 825 - CESTAT AHMEDABAD
Clandestine removal of goods - Clearance of goods without issuance of bills - Excess stock found lying in the factory - Confiscation of seized goods - Release of goods on issuance of bank guarantee - Held that:- entire case was made out on the basis of statements of the buyers and the computer printout. Commissioner (Appeals) already held that the evidentiary value of the statements is weak. It is also noted that the statements of the 30 persons were mostly similarly pre-drafted. The investigating officers failed to comply with the conditions of Section 36B of the Act in respect of relying upon this computer print out. There is no adequate material available on record to establish the clandestine removal of goods. Therefore, the demand of duty solely on the basis of these materials cannot be sustained. Hence, as the clearance value was within the SSI exemption, the confiscation of the goods cannot be sustained. So, the imposition of penalties are not warranted. - demand of duty along with interest and penalties on the appellants cannot be sustained. Accordingly, the impugned orders are set aside - Decided in favour of assessee.
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2015 (3) TMI 824 - GOVERNMENT OF INDIA
Denial of rebate claim - Goods fully exempted - Duty for which the rebate claims were filed had been paid out of Cenvat credit availed by the processors on the strength of bogus/fake invoices - Applicant failed to prove the genuineness of the duty payment and veracity of the input stage credit taken by the processors - Held that:- DGCEI investigated the case and issued show cause notice dated 15.12.10 wherein they categorically stated that the said five suppliers were non-existent; that the processors availed cenvat credit on the basis of bogus invoices issued in the name of said five bogus suppliers; that the facts of the case clearly proves culpability of the merchant exporter; and that payment of duty from such fraudulently availed cenvat credit cannot be treated as payment of duty for granting rebate under Rule 18 of Central Excise Rules 2002. Adjudicating authority-has recorded in his-findings that in this case applicant had-shown on paper to have procured the grey fabrics from bogus grey suppliers and passed on the fake - cenvat credit by endorsing such fake invoices to the processors. As such there is nexus between. applicant and manufacturer. The applicant had facilitated the wrong availment of cenvat credit by showing purchase/supply of grey fabrics on his account from the non-existent grey suppliers. Under such circumstances, the applicant was party to said fraudulent availrnent of cenvat credit & then payment of duty fraudulently from such credit, on exported goods. As such, applicant was party to said fraudulent availement of cenvat credit and the transaction between - manufacturer and exporter was not bonafide.
Contentions of the applicant that duty was paid on exported goods by issuing invoices under Rule 11 of Central Excise Rules 2002, and foreign remittances towards export sale proceeds were received, do not help them in making them entitled for rebate claim since the said goods were cleared for export by fraudulent payment of duty from wrongly availed cenvat credit as discussed in above para. The said fraudulent payment of duty are only debit entries on paper and no actual duty was paid and applicant was found party to said fraud. - As such, exported goods cannot be treated as duty paid goods: Since-the fundamental-condition of-payment of duty on exported goods is not satisfied the rebate claim were-rightly held inadmissible in these cases. - impugned orders require no interference.
As regard genuineness of duty payment certificates, the original authority has observed that genuineness of duty payment and verification of input stage credit of raw material (i.e. grey fabric) is not on record in any of the rebate claims filed by the merchant exporter as the same are lost by department. The applicant in this regard stated that they submitted before the, Commissioner (Appeals) that duty payment certificates were verified by the jurisdictional excise officers and were sent to rebate sanctioning authority and that though, the said certificates were found missing in the file of department, the duty payment can be verified from monthly return filed in the range office. Government notes that original authority has not stated that duty payment certificates (DPC) were not submitted by the applicant. The SCN dated 15.12:11 issued for rejection of Said claim has also not pointed out anything about non-submission of said DPCs. The adjudicating authority has simply stated that DPC are not available in rebate claim files. - In this case department has admitted- that the duty payment certificate submitted by applicant were missing from their office. In such a situation the claimant cannot be penalized by rejecting the rebate claims for lapses on the part of department. The original authority could have got the verification of duty payment done from jurisdictional Central Excise Range afresh rather than rejecting the claim. Government therefore directs the original authority to consider the said claim for sanction after getting the duty payment particulars verified by the jurisdictional range superintendent. - Decided in favour of assessee.
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2015 (3) TMI 823 - GOVERNMENT OF INDIA
Denial of rebate claim - rebate claims were sanctioned of duty paid on value which was more than transaction value - Held that:- Rebate of duty paid on transaction value of goods determined under section 4 of Central Excise Act 1944 is admissible under rule 18 of Central Excise Rules 2002 read with Not. No. 19/04-CE(NT) dated 6.9.2004, Government had reiterated the findings of GOI [2005 (7) TMI 120 - GOVERNMENT OF INDIA] in the case of M/s Bhagirath Textiles wherein it was held that exporter is not liable to pay duty on CIF value of goods but duty is to be paid on transaction value determined under Section 4. - there cannot be any strict statutory relied upon citation which can be taken as guiding precedents because each one of above citation have different background of factual merits pertaining to manufacturers manufacturing goods of different sub-headings following different set of Notifications, choosing different beneficial schemes and changing thereof in between a given financial year thereby leading to arise of different question of law.
Difference in AREs-1 value and FOB value given in the Shipping Bill is due to the difference in calculations only and the same cannot be attributed to freight & Insurance charges. Applicant has claimed that difference in ARE 1/FOB value is due to difference in foreign exchange rates adopted in the case of ARE-1 & Shipping Bills. In this regard Government observes that CBEC has clarified in Circular No. 510/06/2000-Cx dated 3.02.2000 that there is no question of requantifying the amount of rebate by applying some other rate of exchange prevalent of subsequent the date on which the duty was paid. From this, it is quite clear that the rebate amount need not be changed if the difference in both values is due to difference in exchange rate subject to condition that value represents transaction value - Commissioner (Appeals) has erred in setting aside the sanction of entire rebate claims. As such, the sanction of impugned rebate claim excluding the disputed amount of ₹ 55661/- and ₹ 1975/- is upheld and impugned orders-in-original are restored to this extent. The impugned order-in-appeal is also modified to this extent. The matter is required to be remanded back to original authority to decide afresh the rebate claims to the extent of disputed amounts of ₹ 55661/- and ₹ 1975/- only. - Decided in favour of appellants.
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2015 (3) TMI 822 - GOVERNMENT OF INDIA
Sanction of partial rebate claim - applicant exporter has cleared export goods on payment of duty (BED) (a) 10% in terms of Notification No. 2/2008-C.E., dated 1-3-2008 as amended, whereas they were clearing goods for home consumption on payment of duty (BED) @ 4% in terms of Notification No. 4/2006-C.E., dated 1-3-2006 as amended - original authority sanctioned the rebate claims to the extent of duty paid @ 4% and allowed recredit of balance amount in their Cenvat credit account - Held that:- both the Notifications prescribed effective rates of duty. Notification No. 30/2004-C.E. prescribed nil rate of duty provided manufacturer does not avail Cenvat credit on inputs. This clarification does not say that duty can be paid at tariff rate when the exemption notification is existing. Simultaneously availment of these notifications is allowed in the said circular as they pertain to different situation like whether he is availing Cenvat credit or not. This circular is of no help to the applicant as in their case there are no two conditional notifications prescribing two effective rates. Moreover, there is no such circular issued in case of pharmaceutical products pertaining to Notification in question allowing their simultaneous availment. The other Circular No. 937/27/2010-CX., dated 26-11-2010 is not applicable as in the instant case there is no applicability of provisions of Section 5A(1A) of Central Excise Act, 1944.
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%. Government is of the considered view that lower authorities are legally right in holding that duty was payable @ 4% in terms of exemption Notification No. 4/2006-C.E., dated 1-3-2006 as amended and rebate is admissible only to the extent of duty paid at the effective rate of duty i.e. 4% in terms of Notification No. 4/2006-C.E., dated 1-3-2006. Government observes that original authority and appellate authority have rightly restricted the rebate claim to the extent of dut2y paid @ 4% (BED) in terms of Notification No. 4/2006-C.E., dated 1-3-2006. The amount of duty paid in excess of duty payable at effective rate of 4% as per Notification No. 4/2006-C.E. is to be treated as voluntary deposit made by applicant with the Government - Decided against assessee.
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2015 (3) TMI 821 - GOVERNMENT OF INDIA
Sanction of partial rebate claim - applicant had been paying duty @ 4% for the goods cleared for home consumption they were required to pay at the same rate on the export goods also - Instead of paying duty @ 4% for export clearances, they paid duty @ 10% - Assistant Commissioner sanctioned cash rebate of duty paid @ 4% on the FOB/ARE-1 value whichever is lower and remaining amount was sanctioned by way of credit in their Cenvat account under Rule 18 of the Central Excise Rules, 2002 read with Section 11B of the Central Excise Act, 1944 - Held that:- applicants were availing Notification No. 4/2006-C.E., as amended till Feb., 2010 in respect of all clearances made both for home consumption as well as for exports by paying duty @ 4% only. All the rebate claims were being sanctioned accordingly. From March/April, 2010 onwards applicants started paying duty @ 10% in terms of Notification No. 2/2008-C.E. as amended on export goods and claimed rebates of duty paid at higher rate. Applicants apparently opted to pay duty on export clearances at higher rate so as to encash the accumulated Cenvat credit through the said rebate claims.
In this case, both the Notifications prescribed effective rates of duty. Notification No. 30/2004-C.E. prescribed nil rate of duty provided manufacturer does not avail Cenvat credit on inputs. This clarification does not say that duty can be paid at tariff rate when the exemption notification is existing. Simultaneously availment of these notifications is allowed in the said circular as they pertain to different situation like whether he is availing Cenvat credit or not. This circular is of no help to the applicant as in their case there are no two conditional notifications prescribing two effective rates. Moreover, there is no such circular issued in case of pharmaceutical products pertaining to Notification in question allowing their simultaneous availment. The other Circular No. 937/27/2010-CX, dated 26-11-2010 is not applicable as in the instant case there is no applicability of provisions of Section 5A(1A) of Central Excise Act, 1944.
Place of removal may be factory/warehouse, a depot, premise of a consignment agent or any other place of removal from where the excisable goods are to be sold for delivery at place of removal. The meaning of words “any other place” read with definition of “sale”, cannot be construed to have meaning of any place outside geographical limits of India. The reason of such conclusion is that as per Section 1 of Central Excise Act, 1944, the Act is applicable within the territorial jurisdiction of whole of India and the said transaction value deals with value of excisable goods produced/manufactured within this country. Government observes that once the place of removal is decided within the geographical limit of the country, it cannot be beyond the port of loading of the export goods. It can be either factory, warehouse or port of export and expenses of freight/insurance incurred up to place of removal form part of assessable value. Under such circumstances, the place of removal is the port of export if sale takes place at the port of export.
Original authority and appellate authority have rightly sanctioned the rebate claim to the extent of duty paid at effective rate of duty @ 4% in terms of Notification No. 4/2006-C.E., dated 1-3-2006 as amended, on the transaction value determined in these cases in terms of Section 4 of Central Excise Act, 1944. The amount of duty paid in excess of duty payable at effective rate of 4% as per Notification No. 4/2006-C.E., as amended on the transaction value of exported goods, is to be treated as voluntary deposit made by applicant with the Government. - excess paid amount is to be returned/adjusted in Cenvat credit account of assessee. Moreover Government cannot retain the said amount paid without any authority of law. Therefore, the lower authorities have rightly allowed the re-credit of said excess paid amount of duty in their Cenvat credit account. - no infirmity in the impugned orders and therefore upholds the same. - Following decision of M/s. Belapur Sugar and Allied Industries Ltd. v. CCE [1999 (4) TMI 79 - SUPREME COURT OF INDIA] and M/s. Nahar Industrial Enterprises Ltd. v. UOI [2008 (9) TMI 176 - PUNJAB AND HARYANA HIGH COURT] - Decided against assessee.
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2015 (3) TMI 784 - SUPREME COURT
Demand of differential duty - clearance of goods after processing but as such - reversal of credit - activity is amount to manufacture or not - purchase of bumpers, grills, etc., on which the process of Electro Deposition anti-rust so that the shelf life of the said bumpers, grills, etc., would be generally increased) - Held that:- Appellants purchase inputs, avail MODVAT Credit of duty paid thereon subject them to the process of E.D. Coating and remove the same on payment of duty equivalent to the amount of MODVAT Credit availed by them initially at the time of receipt of the inputs. It is thus apparent that the inputs are removed from the factory after undertaking the process of E.D. Coating. In view of this the ratio of the decision of the Larger Bench in the case of Commissioner of Central Excise, Vadodra v. Aisa Brown Boveri Ltd., 2000 (120) ELT 228 is not applicable as the facts are different in as much as the inputs were cleared as such in the said matter. It has been emphasized by the learned counsel for the appellants that words "as such" were not mentioned in Rule 57-F at the relevant time. In our view the absence of these words does not make any difference as Rule 57-F of the Central Excise Rules deals with the "Manner of Utilization of Inputs and the Credit".
It is clear that bumpers and grills are most certainly of commercial use in themselves whether the process of ED coating is applied or not. Importantly, this Court laid down that value addition without any change in name, character or end use of goods cannot possibly constitute criteria to decide as to what is manufacture. - Court would be adding words to Rule 57F(1) to the effect that value additions made to inputs covered by sub-rule (ii) would also suffer duty even if there is no manufacture. Second, sub-rule (3) and (3A) apply to an entirely different factual scenario, as has been conceded by learned counsel for Revenue, and it is only after all the conditions under the said sub-rules are met that duty attributable to inputs contained in partially processed inputs would then become dutiable - Impugned order set aside - Decided in favour of assessee.
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2015 (3) TMI 783 - GUJARAT HIGH COURT
Maintainability of appeal - Monetary limit - Refund claim - Claim for accumulated CENVAT Credit - Whether the Tribunal has committed error in granting claim of cash refund of unused accumulated deemed credit contrary to the provisions of Rule 57A of the Central Excise Rules, 1944 and Notification No. 85/87- CE dated 1st March, 1987 - Held that:- It is not disputed by the appellant's counsel that the amount to be refunded is less than ₹ 2 lakh and in view of the Circulars issued by the Department which have been considered in COMMR. OF C. EX. & CUS., VADODARA-I VS. PHARMANZA HERBAL PVT. LTD. reported in [2014 (9) TMI 330 - GUJARAT HIGH COURT] and Commissioner of C. Ex. & Customs Vs. Stovec Industries Ltd. reported in [2013 (1) TMI 72 - GUJARAT HIGH COURT], the Tax Appeal below amount of ₹ 2 lakh is not maintainable. Even though the appeal was filed prior to issuance of the Circulars in the year 2010, the Circulars would apply even to the pending appeal. - Appeal not maintainable.
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2015 (3) TMI 782 - HIMACHAL PRADESH HIGH COURT
SSI Exemption - benefit of exemption under Notifications Nos.175/86-C.E. and 1/93-C.E. dated 1.3.1986 and 28.2.1993 - Whether a party is entitled to the benefit of exemption under Notifications Nos.175/86-C.E. and 1/93-C.E. dated 1.3.1986 and 28.2.1993, respectively, for the clearance of their product(s) manufactured under the brand name of another company not entitled to SSI exemption - Held that:- A plain reading of the Section 23(1) of The Trade Marks Act, 1999 would disclose that once the registration of the trade mark under the said Act is granted, it takes effect from the date of making of the application for the registration. The certificate of registration issued to the appellants clearly discloses that the application was filed on 01.05.1992. In fact, the certificate itself reads that the appellants have been registered under the Act in relation to the trade mark for telephone (basic and cordless) as of the date of 01.05.1992. Obviously, therefore, the authorities below erred in denying the benefit under the said notification w.e.f. 01.05.1992 to the appellants and order in that regard cannot be sustained. - The appellants are entitled for the benefit under the Notification Nos.175/86- CE dated 01.03.1986 and 1/93-CE dated 28.02.1993 w.e.f. 01.05.1992 onwards. - Decided against Revenue.
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2015 (3) TMI 781 - ANDHRA PRADESH HIGH COURT
Cenvat Credit - Supply to SEZ - Amendment to rule 6 - whether retrospective or prospective - Held that:- Following decision of Commissioner of Central Excise & Customs, Raipur vs. M/s. Steel Authority of India Ltd., Bhilai Steel Plant, Bhilai reported in [2013 (5) TMI 460 - CHATTISGARH HIGH COURT] - Decided against Revenue.
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