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- 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 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 (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 (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 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 (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 (3) TMI 1427
Area based exemption - Liability towards National Calamity Contingent Duty (NCCD), Education Cess and Secondary & Higher Education Cess - manufacturing establishment which is exempted from payment of Central Excise Duty - appellant was apparently paying an automobile cess, but the NCCD, Education Cess and Secondary & Higher Education Cess were not being paid - Section 136 of the Finance Act, 2001. Held that:- Sections 91 & 93 of the Finance Act, 2004 introduced the Education Cess as a duty of excise calculated on the aggregate of all duties of excise. Sections 136 & 138 of the Finance Act of 2007 similarly imposed Secondary & Higher Education Cess, on the same pattern as the Education Cess - It is relevant to note that in terms of the show cause notice, the cesses were being so demanded on account of the fact that they....... + More
- 2019 (2) TMI 1488
CENVAT Credit - input services - services of Goods Transport Agency for transportation of cement - place of removal - demand was confirmed by the adjudicating authorities holding that the credit on GTA service is available as input service only up to place of removal after 01.04.2008 in terms of Rule 2 (l) of Cenvat Credit Rules, 2004 - issue under litigation - extended period of limitation - Held that:- The Appellants are clearing their goods on MRP basis in case of clearance from their depot/ stockists or to their customers and in case of sale to institutional consumers the goods are being cleared by them by applying valuation in terms of Section 4. The Appellant have annexed copies of excise invoice cum gate pass which shows that the prices are inclusive of freight and insurance and nothing extra has been charged. The goods are being c....... + More
- 2019 (2) TMI 1487
CENVAT Credit - service tax paid on outward transportation - place of removal - demand was confirmed by the adjudicating authority holding that the credit of GTA service is available on input service only up to place of removal after 01.04.2008 in terms of Rule 2 (I) of Cenvat Credit Rules, 2004 - issue under litigation - extended period of limitation - Held that:- The Appellant are clearing their goods on MRP basis in case of clearance from their depot/ stockists or to their customers and in case of sale to institutional consumers the goods are being cleared by them by adopting the valuation of the goods in terms of Section 4. The Appellants have annexed copies of excise invoice cum gate pass which shows that the prices are inclusive of freight and insurance and nothing extra has been charged. The goods are being cleared on FOR basis and....... + More
- 2019 (2) TMI 860
CENVAT credit - sale of surplus electrical energy to outside power distribution agency or supplied to its own colonies, generated at appellant’s factory premises w.e.f 1.3.2015 - applicability of Rule 6(3) of CENVAT Credit Rules, 2004 - Held that:- This issue has already been decided in favour of the appellant in appellant’s own case M/S. VENKATESHWARA POWER PROJECTS LTD., M/S. THE UGAR SUGAR WORKS LTD., M/S. EID PARRY (INDIA) LTD., M/S. SRI SRIVSGAR SUGAR & AGRO PRODUCTS LTD. VERSUS COMMISSIONER OF CENTRAL GOODS & SERVICE TAX [2018 (11) TMI 913 - CESTAT BANGALORE], where it was held that there cannot be a demand of 6% of the value of exempted electricity sold outside the factory in terms of Rule 6(3) (i) of CCR simply on the ground that the appellant has failed to maintain separate account on receipt of input or input services used in th....... + More
- 2019 (2) TMI 562
CENVAT credit - CENVAT credit involved input and input services related to that quantity of electricity sold to outside agencies - common inputs to the manufacture of dutiable goods as well as exempted goods - non-maintenance of separate records - Sub Rule 3(1) of Rule 6 of CENVAT Credit Rules - Held that:- Allahabad High Court in the case of Gularia Chini Mills [2013 (7) TMI 159 - ALLAHABAD HIGH COURT] has held that in the generation of electricity from bagasse, no other input or input service is used and therefore, the electrical energy is neither excisable under Section 2(d) of Central Excise Act, 1944 nor exempted goods and hence, Rule 6 is not applicable. The demand of 6% of the value of electricity sold to various companies is not sustainable in law - appeal allowed - decided in favor of appellant.
- 2019 (2) TMI 379
Clearance of by-product Bagasse - exempt goods - credit not reversed - Rule 6(3)(i) of the CENVAT Credit Rules, 2004 - Held that:- The issue of applicability of Rule 6(1) of CENVAT Credit Rules, 2004 to bagasse which emerges during the course of manufacture of sugar and molasses, has been settled taking note of the judgment of Hon'ble Supreme Court in the case of Union of India Vs. DSCL Sugar Ltd. [2015 (10) TMI 566 - SUPREME COURT], where it was held that Since it is not a manufacture, obviously Rule 6 of the Cenvat Rules, 2004, shall have no application - demand set aside - appeal allowed - decided in favor of appellant.
- 2019 (2) TMI 81
CENVAT Credit - input services - Outward Goods Transportation Service (from factory to customers, from railway siding to godown and from godown to customers) - October, 2011 to March, 2012 - place of removal - Held that:- In view of the amended definition of “input service” w.e.f. 01.03.2008 as also in the light of judgment of the Supreme Court in Ultra Tech Cement Ltd. [2018 (2) TMI 117 - SUPREME COURT OF INDIA], judgment of the Tribunal cannot be sustained in law and the demand is liable to be revived. However, the present matter deserves to be remanded to the Tribunal to consider the question of penalty. The matter is remanded back to the Tribunal for consideration of the question of penalty to decide the same after hearing both the parties in accordance with law - Petition allowed by way of remand.
- 2019 (1) TMI 1100
Clandestine manufacture and removal - manufacture of Gutkha out of short found raw materials and clandestine clearance of the same - validity of statements recorded during the investigation - the entire case is based on presumption that alleged shortage of one raw material, was the evidence to establish clandestine removal and evasion of duty - Held that:- The revenue’s case is based on statements and revenue’s grounds are an attempt to establish as to how such statements are reliable for setting aside the impugned order. However, as recorded by the Original Adjudicating Authority many statements have been retracted and transporters have stated that they have never transported the goods manufactured by respondent - Further, revenue could not establish as to from where other raw materials were procured. Further, revenue could not establish actual manufacturer of Gutkha alleged to have been clandestinely removed - appeal dismissed - decided against Revenue.
- 2019 (1) TMI 174
Classification of goods - Mixed Fuel Oil - Revenue is seeking to classify the product as motor spirit under heading 2710.99 (prior to 31.03.2005) and under tariff Heading 2710 19 90 (after 31.03.2005) - Held that:- The definition of motor spirit essentially remains the same prior to and after 01.03.2005. Earlier the specific requirements of ‘motor spirit’ were part of the heading 2710 but after 1.3.05 the same were incorporated in supplementary note (a) to Chapter 27 - To qualify for the phrase ‘suitable of use as motor spirit’ the product needs to be tested in admixture with anything other than ‘mineral oil’ - In the instant case, letter of the Superintendent (prev.) dated 20.04.2006 suggests that the product has been tested in admixture with motor gasoline in the ratio of 10% V/V. The said letter of t....... + More
- 2018 (12) TMI 1649
CENVAT Credit - Whether the explanations entered in Rule 6(3) w.e.f. 01st March, 2015 would have the effect of the assessee being under a legal obligation to pay duty on the non-excisable goods bagasse and press mud? - HELD THAT:- It was observed that inasmuch as according to Supreme Court’s decision in the case of Union of India v. DSCL Sugar Ltd. [2015 (10) TMI 566 - SUPREME COURT], bagasse has been held to be an agricultural waste or residue, there could be no manufacturing activity. The press mud has also been held to be a waste and not a manufactured product. As such the amendment made in the provisions of Rule 6 would not have any effect to the facts and circumstances of the present case. Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- It stands clarified by the learned A.R. appearing for the R....... + More
- 2018 (12) TMI 478
Classification of goods - rice bucket elevator - rice conveyor - the appellants were classifying these goods under heading No. 8437 as “machinery used in Milling Industry” where the tariff rate is nil - according to the department these goods are classifiable under heading No. 8428, as “other lifting, handling, loading or unloading machinery - whether the impugned goods are classifiable under CETH 8428 or under CETH 8437 of CETA? Held that:- The conveyors and elevators manufactured by the appellants are designed, specifically, for rice mills which has not been disputed by the adjudicating authority in the impugned order, wherein it has been observed by the adjudicating authority that “the goods in question are basically conveyors & elevators, which are used for the transportation of the rice in a rice mill from one stage to the another. T....... + More
- 2018 (11) TMI 1514
Clandestine removal - reliance placed on the statement of the Director of Appellant - Section 9D of the Central Excise Act, 1944 - penalty - time limitation - Section 35 G of th Central Excise Act, 1944. Did the Tribunal act contrary to the law relying on the statement of the Director of Appellant to decide the appeal against the Appellant herein? - Is the procedure adopted by the Appellate Tribunal contrary to Section 9D of the Central Excise Act, 1944? - Held that:- The adjudicating officer as well as Customs, Excise and Service Tax Appellate Tribunal committed illegality in placing reliance upon the statement of Director Narayan Prasad Tekriwal which was recorded during investigation when his examination before the adjudicating authority in the proceedings instituted upon show cause notice was not recorded nor formation of an opinion t....... + More
- 2018 (11) TMI 1019
CENVAT Credit - time limitation - it was alleged that appellant had wrongly availed credit to the tune of ₹ 21,35,493/- beyond the time limit of six months / one year in contravention of Rule 4(1) of CENVAT Credit Rules, 2004 - Held that:- The assessee has to avail credit on the invoices within a period of six months /one year from the date of issue of the invoices / documents - In the present case, it is seen that all the invoices are issued even prior to 11.7.2014. The department has issued the show cause notice on the wrong interpretation of the provisions that credit has been availed by the appellant after 11.7.2014. The amended provision has no retrospective effect. Demand cannot sustain - appeal allowed - decided in favor of appellant.