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- 2019 (11) TMI 1197
Interest on delayed refund - time limitation for calculation of refund amount - appellant claims interest on delayed refund i.e. from the date of deposit till payment thereof - Section 35FF of the Central Excise Act, 1944 - section 243 Income Tax Act, 1961 - HELD THAT:- On-going through the provisions of both Income Tax Act, 1961 and Central Excise Act, 1944, the interest on delayed refund is payable after expiry of 3 months from the date of granting refund or from the date of communication of order of the appellate authority, which are pari-materia. The decision of Hon‟ble Apex Court in the case of SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (1) TMI 55 - SUPREME COURT] is law of land, in terms of Article 14 of the Constitution of India which is to be followed, wherein the Hon‟ble Apex Court has ans....... + More
- 2019 (11) TMI 673
Scope of SCN - Manufacturing activity taking place or not - Respondent manufactured Foots Oil, Pressed Wax, Pressed Paraffin Wax without observing the mandatory procedure and clearing Excise Duty - demand of Central Excise duty under the extended proviso to Section 11A of the said Act - interest under Section 11 AB of the said Act - recovery of duty - scope of SCN. HELD THAT:- Section 11A deals with various facets including non-levy and non-payment of excise duty and contemplates issuance of a show cause notice by the Central Excise Officer requiring the “person chargeable with duty” to show cause why “he should not pay the amount specified in the notice.” In terms of sub-section 10 of said Section 11A, the concerned person has to be afforded opportunity of being heard and after considering his representation, if a....... + More
- 2019 (10) TMI 212
CENVAT credit - input services - GTA service - place of removal - HELD THAT:- The Board has clarified in their circular dated 8.6.2018 that when the transaction / sale is on FOR basis, the place of removal would be the buyer’s premises. Therefore, it is necessary to determine the place of removal to consider the eligibility of credit of service tax paid on freight charges upto the buyer’s premises. For this purpose, it is fit to remand the matter to the adjudicating authority who shall look into the issue of eligibility of credit on GTA service after determining the place of removal - appeal allowed by way of remand.
- 2019 (8) TMI 527
Clandestine removal - bogus transaction - allegations are framed on the basis of assumption and presumption and unauthenticated private records/Loose Sheets - tangible, cogent, affirmative corroborative evidence or not - HELD THAT:- The department has failed to conclusively prove that the said traders were bogus. We find considerable force in the contentions of the Ld. Advocate for the Appellants that the levy under the Central Excise Act,1944, is on manufacture of excisable goods and in the instant case there is no evidence of manufacture of the impugned goods. Rather, in the investigation by DGCEI, Chennai, Kochi the consigner/buyer have categorically stated that they have purchased impugned goods from Sri Pankaj who is Director of M/s Puja TMT Plant P.Ltd., which is engaged in manufacture of TMT Bars. Further, in the show cause, it is ....... + More
- 2019 (7) TMI 625
CENVAT Credit - input/input services - outward freight incurred for transportation of finished goods to the customer’s premises - period from July, 2015 to November, 2016 - Department was of the view that the place of removal being the factory gate, the appellants are not eligible for the credit - HELD THAT:- In the present case, the appellants have incurred the freight charges and has included the freight charges in assessable value on which excise duty has been discharged. This being so, the ownership of the goods remain with the appellant till it reaches the buyer’s premises and the conditions for F.O.R. sale as elucidated in the case of M/s. Roofit Industries [2015 (4) TMI 857 - SUPREME COURT] stands discharged by the appellant - In the present case, as the freight charges have been included in the assessable value on whic....... + More
- 2019 (7) TMI 567
Utilization of CENVAT Credit - utilization of credit for payment of tax on input services, even when Rule 3(4)(e) of Cenvat Credit Rules, 2004 was very much in existence - period prior to 20.06.2012 - import of service under reverse charge basis under section 66A of the Finance Act of 1994 - HELD THAT:- The restriction provided in Rule 5 of the above rules is that the taxable service received from outside India shall not be treated as output services for availment of tax paid on any input services. However, there is no bar to utilizing of cenvat credit already availed to discharge service tax obligation on the import of services on reverse charge basis - This view is further supported by the fact that on 20th June, 2012 the Cenvat Credit Rules, 2004 were amended so as to introduce an explanation which bars utilization of cenvat credit to meet oblilgation of tax on output service on reverse charge basis. No substantial questions of law arise in the present facts - appeal dismissed.
- 2019 (7) TMI 458
SSI Exemption - non-inclusion of value of goods which was manufactured by them on job work basis on behalf of the various principals - crossing of threshold exemption - non-filing of declaration/ undertaking under N/N. 214/86-CE. by the suppliers - Extended period of limitation - Penalty - HELD THAT:- As per the decision of THERMAX BABCOCK AND WILCOX LTD., THERMAX LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-I [2017 (12) TMI 266 - CESTAT MUMBAI] the liability to pay duty in respect of goods produced on job work basis lies with the appellant being manufacturer of goods. However, since the issue regarding liability of duty on manufacturer vis a vis principal was referred to Larger Bench of Tribunal in case of Thermax Babcock & Wilcox Ltd. extended period of limitation cannot be invoked in view of the decision of Tribunal in case of ....... + More
- 2019 (7) TMI 325
CENVAT credit - input services - Outward Transportation of Goods up to the buyer’s premises - sale on FOR basis - place of removal - Department was of the view that the place of removal can only be the factory gate - HELD THAT:- It is not necessary that there should be a separate contract for supply of goods. The parties can agree to the terms and conditions of the sale in the purchase orders itself. This becomes a concluded contract when the offer is accepted by the supplier/buyer. Therefore, when the purchase orders itself show that the condition for sale is FOR basis, the observations made by the authorities below that the appellant has failed to produce any evidence/contract establishing that they have borne the freight charges, insurance, etc., is without any factual basis and unacceptable. Further, in the present case, letters....... + More
- 2019 (7) TMI 150
CENVAT Credit - input services - product liability insurance - post-sales/post-manufacturing service or not? - HELD THAT:- The product liability insurance is availed by the appellant for covering the risk of any manufacturing defect arising out of the finished products cleared by them. When the defects are found and put forward only after use of the vehicle by the purchaser of the vehicle, in such cases, the automobile manufacturer has to compensate / satisfy the claim of the customer which is thereafter reimbursed by the appellant. In such cases to cover the risk of such payment, appellant has to avail product liability insurance. Indeed, this insurance is directly connected with the manufacturing activity of the appellant and is also an input service used in relation to the manufacture of the finished products. The denial of credit is unjustified - appeal allowed - decided in favor of appellant.
- 2019 (6) TMI 820
Cash refund - unutilized CENVAT credit on inputs - clause (c) to the proviso to section 11B(2) of the Central Excise Act, 1944 - Section 11B of the said Act of 1944 - time limitation - vires of declaration of law under Article 141 of the Constitution of India - HELD THAT:- Section 11B(1) clearly says that a person claiming refund has to make an application for refund of such duty before the expiry of the period prescribed and in such form and manner. The application has to be accompanied by such documentary or other evidence as the applicant may furnish to establish that the amount of duty of excise, in relation to which such refund is claimed, was collected from or paid by him and incidence of such duty had not been passed by him to any other person. The later provision enabling the claiming of refund is now worded differently. We have r....... + More
- 2019 (6) TMI 186
CENVAT Credit - Bagasse & Press-mud - Rule 6(3) of the Cenvat Credit Rules, 2004 - period covered is from 01st March, 2015 to July, 2015 - HELD THAT:- It was held in appellant’s own case in Hon’ble Supreme Court’s decision in the case of UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT] that Press-mud & Bagasse are not arising out of manufacturing activity and the same are agriculture Waste & Residue. Appeal allowed - decided in favor of appellant.
- 2019 (6) TMI 67
CENVAT Credit - input services in the nature of the employee benefit - life insurance of employees - period July 2013 to March 2017 - extended period of limitation - penalty - HELD THAT:- The period involved in the present case is after the amendment in the definition of ‘input service’. The definition of ‘input service’ post amendment contained exclusion clause and the exclusion clause was effective from 01.04.2011 and clause (C) of the said exclusion specifically excluded the services provided in relation to Life Insurance and Health Insurance. These services prior to 01.04.2011 have been held to be covered by the definition of ‘input service’. In fact the need for exclusion would arise only when the services are otherwise covered by the definition. The Legislature in its wisdom has excluded certain s....... + More
- 2019 (6) TMI 9
CENVAT Credit - input services - outward GTA service - Circular No. 1065/4/2018-CX dated 08.06.2018 - HELD THAT:- For allowing the cenvat credit on GTA, certain factual aspects to be verified such as whether the sale is on FOR basis, whether the freight is integral part of the sale price, whether the excise duty paid on the value inclusive of freight amount etc. - the matter needs to be re-considered by the adjudicating authority - appeal allowed by way of remand.
- 2019 (5) TMI 1653
CENVAT credit - inputs/input services used in the manufacture of excisable as well as exempted goods including non-excisable goods - Bagasse and Press Mud - period from 1st March 2015 to 31st March 2016 - sub-rule (1) of Rule 6 of Cenvat Credit Rules, 2004 - HELD THAT:- The issue is covered by precedent decision in respondent’s own case M/S BAJAJ HINDUSTHAN SUGAR LIMITED VERSUS COMMISSIONER, CENTRAL EXCISE & CGST, (NOIDA, U.P.) [2019 (6) TMI 186 - CESTAT ALLAHABAD] where it was held that Press Mud and Bagasse are not arising out of manufacturing activity and the same are agricultural waste and residue and therefore the said Final Order is applicable in the present case. Credit need not be reversed - appeal dismissed - decided against Revenue.
- 2019 (5) TMI 972
Reversal of CENVAT Credit - Bagasse (non-excisable goods) - reversal of credit of input and input services - Rule 6 of the CENVAT Credit Rules, 2004 - amendment in CENVAT Credit Rules dated 01/03/2015 - Circular No.1027/15/2016-CX dated 25/04/2016 - HELD THAT:- Circular dated 25/04/2016 treats Bagasse as an exempted good for the purpose of reversal of credit of input in terms of rule 6 of the CENVAT Credit Rules 2004. The competent authority deciding the claim of the petitioner consequent to the Show Cause Notice, would be bound by the departmental Circular dated 25/04/2016 and he would not have the liberty of disagreeing with the circular issued by Central Board of Excise and Customs. In this view of the matter it would not be efficacious to relegate the petitioner before the competent authority and, there is no hesitation in holding tha....... + More
- 2019 (5) TMI 657
Interest on differential duty - price escalation clause - Whether interest is payable on the differential excise duty with retrospective effect that become payable on the basis of escalation clause under Section 11AB of the Central Excise Act, 1944? - Whether the decision in SKF case [2009 (7) TMI 6 - SUPREME COURT] and also in International Auto [2010 (1) TMI 151 - SUPREME COURT] lay down the correct law having regard to the decision of this Court in MRF case [1997 (3) TMI 104 - SUPREME COURT] which was in fact rendered by a Bench of three Judges. HELD THAT:- The scheme of the Central Excise Act and the Rules are a separate code. Section 11A is a provision for recovery. If there is a non-levy, non-payment, short-levy or short-payment, the same becomes recoverable under Section 11A. If there is any of the four contingencies referred to in....... + More
- 2019 (5) TMI 451
CENVAT Credit - input services - freight for outward transportation of goods upto buyer’s premises - HELD THAT:- It is necessary to determine the place of removal to consider the eligibility of credit of service tax paid on freight charges upto the buyer’s premises. The present appeal is also being remanded to the appellate authority with the same directions as aforesaid, for de novo adjudication - Appeal allowed by way of remand.
- 2019 (4) TMI 725
CENVAT Credit - input services - Outward Transportation of Goods upto buyer’s premises - Held that:- This very Bench relied upon by the Ld. Advocate in MS ASHOK LEYLAND LTD. VERSUS COMMISSIONER OF GST&CE (SALEM) [2019 (4) TMI 641 - CESTAT CHENNAI] wherein the matters have been remanded to the adjudicating authority to decide the matter afresh in view of the judgments of M/s. Ultra Tech Cements Ltd., M/s. Roofit Industries Ltd. [2015 (4) TMI 857 - SUPREME COURT] and Board’s Circular dated 08.06.2018. Appeal allowed by way of remand.
- 2019 (4) TMI 635
CENVAT Credit - input services - place of removal - Outward Transportation of Goods (GTA Services) upto the buyer’s premises - main grounds raised by the appellants is that the Board’s circular dated 08.06.2018 has clarified with respect to what is to be the place of removal - Held that:- On a perusal of the Circular, it is found that the general principles concerning place of removal as elucidated by the Apex Court in the case of Commissioner of Customs & Central Excise, Nagpur Vs M/s. Ispat Industries Ltd., [2015 (10) TMI 613 - SUPREME COURT] have been brought out. The judgment in COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. [2015 (4) TMI 857 - SUPREME COURT] basically concerns itself with includibility of certain costs incurred the delivery of the goods at the buyer’s point, whereas, on the oth....... + More
- 2019 (4) TMI 587
Valuation - inclusion of Dharmada Charges (Charitable donation received from the customers) in the assessable value - Held that:- The receipts on account of Dharmada were voluntary, earmarked for charity and in fact credited as such. Though the payment as Dharmada has been found to be voluntary, it would make no difference to the true character and nature of the receipts even if there were found to be paid compulsorily because the purchaser, purchased the goods out of their own volition. The purchase of the goods is the occasion and not consideration for the Dharmada paid by the customer. When an amount is paid as Dharmada along with the sale price of goods, such payment is not made in consideration of the transfer of goods. Such payment is meant for charity and is received and held in trust by the seller. If such amounts are meant to be ....... + More