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Central Excise - Case Laws
Showing 41 to 60 of 188 Records
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2014 (10) TMI 726
Denial of rebate claim - non export of goods within 6 months - extension of time for export - Notification No.19/2004-CE (NT) dated 6th September, 2004 - Held that:- The application was filed with the Jurisdictional Deputy Commissioner of Central Excise/Assistant Commissioner of Central Excise much after six months, namely, 17th June, 2005 and extension was prayed for three months upto 31st October, 2005. The goods have been exported not relying upon any such extension but during the pendency of the application for extension. The precise date of export is 9th September, 2005. The Petitioners admitted their lapse and inability to produce the permission or grant of extension for further period of three months. - rebate claim has been rightly rejected by the Maritime Commissioner (Rebate) Central Excise, Mumbai-III by his order which has been impugned in the writ petition - Decided against assessee.
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2014 (10) TMI 725
SSI Exemption - Brand Name - assigning the brand name - Manufacturing of Nipple or complete feeding bottles - affixing/assembling of Nipple to other components/accessories bought out from outside or manufactured by others - Valuation - Brand Name - Held that:- In view of the judgment of the Supreme Court in Naveen Chemicals (1993 (9) TMI 107 - SUPREME COURT OF INDIA), we are of the view that the issue raised in the appeal has a direct and proximate relationship to the rate of duty within the meaning of Section 35-G and the issue as to whether the assessee was or was not entitled to the benefit of the exemption, cannot be decided in these proceedings. Hence, the appeal would not be maintainable on that ground. - Decided against Revenue.
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2014 (10) TMI 724
Power of tribunal to grant stay beyond the total period of 365 days - extension of stay granted earlier - extension order should be speaking or not - Held that:- even in a case where the period of 365 days has passed from the date of initial grant of stay but the appeal could not be disposed of for reasons not attributable to the appellant/ assessee (in whose favour the stay was granted); and where the Tribunal is satisfied that the appellant/ assessee was ready and willing for disposal of the appeal and/ or had not indulged in any protractive strategies, extension of stay could be granted (beyond the period of 365 days) by passing a speaking order disclosing the satisfaction of the Tribunal as to absence of any delay/ protractive stratagems by the appellant/ assessee resulting in non disposal of the appeal or that the appeal could not be disposed of on account of pendency of several appeals or other reasons attributable to the structure and context of the Tribunal or other appropriate reasons.
Appellant in whose favour an order of stay earlier granted stood vacated on expiry of 180 days or 365 days as the case may be, may present an application seeking extension of stay by pleading the necessary facts as would authorise the exercise of discretion by this Tribunal for grant of such extension. The Registry is directed to maintain a separate register to record data with respect to the appeals in which stay has been granted and other appeals where no stay is granted, so as to enable prioritised listing of appeals where stay has been granted, subject to infrastructure and organisational limitations of CESTAT - Following decision of Commissioner Versus Small Industries Development Bank of India [2014 (7) TMI 738 - GUJARAT HIGH COURT] and Commissioner of Central Excise Versus Disha Engineers [2014 (8) TMI 737 - GUJARAT HIGH COURT] - Matter remanded back - Decided in favour of assessee.
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2014 (10) TMI 723
Cenvat credit - allegation of non receipt of material - Held that:- no investigation had been taken by the Department at the end of the suppliers to ascertain the facts regarding delivery of goods. Moreover, the statutory records of the assessee concerned, shows receipt and consumption of goods. There was no statement of the supplier that the goods were not supplied to the assessee and were supplied to a third party. In light of the aforesaid facts, it cannot be said that the findings recorded by the Tribunal are in any manner erroneous. demands were based upon the statements of transporters or drivers of the trucks which were not corroborated by any evidence. Under the circumstances, the Tribunal was justified in holding that only on the basis of third party statements, such demand cannot be made. Moreover, as rightly pointed out by the Tribunal, no investigation has been conducted at consignors' place or at the place where the said goods are alleged to have been supplied. Under the circumstances, it cannot be said the Tribunal has committed any error in deleting the aforesaid demands.
All the goods supplied by M/s. Motabhai Iron & Steel were accompanied by documents evidencing payment of duty. The representative of M/s. Motabhai Iron & Steel had nowhere admitted that the assessee was issued only invoices and that there was no delivery of goods to the assessee. Besides, all the payments that were made to M/s. Motabhai Iron & Steel were made through bank drafts. The Tribunal has also noted that, in all, demand was made in respect of 44 consignments. However, it was only in respect of two transporters, who had transported merely three consignments that the alleged discrepancy had been pointed out, whereas, in case of other transporters, no discrepancy has been found. In the light of the aforesaid findings recorded by the Tribunal, it cannot be said that there is any error in the conclusion arrived at by the Tribunal while deleting the demand - Decided against Revenue.
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2014 (10) TMI 722
MODVAT Credit - Capital goods - Wrongful availment of credit - Goods used by the appellant was for manufacture of a platform - Held that:- The invoices reveal that the appellant had purchased checkered plates, packing plates, sheets, sections, staging materials, which were classified by the supplier as items falling under Chapter 84 as sugar mill machinery parts - These items are appropriately classifiable either under Chapter 72 as checkered plates, sections, etc. or under Chapter 73 as stagging material, if subjected to various processes, which go to the erection of shed and erected structures. The appellant admits that these plates, sheets, sections, etc. were used in the factory for the purpose of constructing platform for use of the running of machinery. By no stretch of imagination these items could be considered as sugar mill machinery or its components, spares or accessories classifiable under Chapter Heading 84. These items are not capital goods given against Sl.Nos.1 to 4 nor are components, spares and accessories, which are used as capital goods of Sl. Nos.1 to 4 of the table annexed to Rule 57-Q of the Rules. It is quite evident that the goods received by the appellant was used for construction of a platform which are used by mechanics for checking the running of the machines or used for supporting the equipments.
Goods used by the appellant was for manufacture of a platform, which was used for raising a civil structure and by no stretch of imagination, could it be considered as a sugar mill machinery or a plant or component, spares or accessories classifiable under Chapter Heading 84. We are of the opinion, that these items cannot be specified as capital goods under Rule 57-Q of the Rules and, consequently, we hold that the appellant had wrongly availed the credit - Decided against assessee.
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2014 (10) TMI 721
Maintainability of revision application before the revisional authority - matter related to rebate of duty of excise on goods exported or on excisable material used in the manufacture of goods which are exported - scope of section section 35EE - Held that:- A bare perusal of sub-section (1) of section 35EE shows that the Central Government may, on the application of any person aggrieved by any order passed under section 35A where the order is of the nature referred to in first proviso to sub-section (1) of section 35B, annul or modify such order. The argument before the revisional authority was that the Petitioner before us may be person aggrieved but since the order passed is in the nature stipulated by the proviso to sub-section (1) of section 35B, the revision application does not lie.
However, the revisional authority while upholding the objection lost sight of sub-section (1a) of section 35EE and that empowers the Commissioner of Central Excise to prefer an application to the Central Government for revision of the order passed under section 35A. Sub-section (1A) of section 35EE has been brought in the statute book with effect from 11th May, 1999. That does not proceed to indicate that a specific order under section 35A could only be revised and not otherwise. Section 35EE(1a) permits invocation of the revisional power of the Central Government, in case the order is passed by the Commissioner (Appeals) and on the satisfaction or opinion of the Commissioner of Central Excise that the said order is not legal or appropriate. It is in these terms that the present application was filed. In these circumstances, the objection could not have been raised as to the maintainability of the revision application.
The revision application is maintainable and could not have been dismissed for want of jurisdiction in the Central Government. The impugned order is therefore quashed and set aside and the revision application filed by the Petitioner is restored to the file and the same be decided afresh on merits and in accordance with law. - Matter Restored - Decided in favour of Revenue.
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2014 (10) TMI 720
Duty evasion - Clandestine removal of goods - Reversal of MODVAT Credit - Held that:- during the period of 21.04.1999 to 26.08.1999, the appellants did job work of 1,29,430 kgs. of inputs used for the manufacture of fabric, bags and wastage for a particular period. The total weight of input used must be equal to the weight of finished product manufactured including wastage and that there is no process loss. The most vital evidence in the instant case is the job work done by the party for different customers from time to time.
Department has adopted the best possible method i.e. bale weighment charts which means that the average weighment was done on the actual basis and not with hypothetical basis on purchase order etc. From the record, it also appears that the appellants claimed to have consumed 11,134 kgs. of fabrics for packing purposes but their claim had been rightly not accepted by the adjudicating authority. They never informed about this fact to the department, even no entry in this regard was made by them in the statutory records. They also did not pay the duty/reverse the Modvat Credit for this purpose. In fact, they wanted to take advantage on their own fault by not maintaining the record for captive consumption properly. Their record showed that they had no balance of fabrics after 13.8.1998. Whatever fabrics was manufactured till 13.8.1998, they consumed the same in the manufacture of cement/fertilizers bags, during the period 1.8.1998 to 13.8.1998. Similarly, on 17.08.1998, 5000 fertilizer bags were found in excess of the recorded balance and again on 19.3.1999, excess stock of 3899.8 kgs. fabric, 37,739 cement bags and 1,550 kgs. of wastage were found. This circumstance is enough to adversely reflect on the working of the appellants.
Appellant has manufactured and removed the goods without payment of duty as per the details given in the order of authorities below. The circumstances goes long way coupled with other materials are sufficient to prove that there had been unaccounted production and removal of the goods in clandestine manner by the appellant during the period in question without payment of duty. When it is so, then we find no reason to interfere with the impugned order passed by the Tribunal. Hence, the same is hereby sustained - Decided against assessee.
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2014 (10) TMI 718
CENVAT Credit - Debit notes - Credit on ethyl alcohol - Captive consumption - Held that:- Debit notes raised every month by the appellant to the Superintendent of Division III of Nasik that the molasses used in manufacture of ethyl alcohol was systematically reversed every month either from RG-23 account or from PLA account and intimated to the department. We have seen the copies of the debit notes. One debit note No. 90/03-04 dated 07.06.2003 bears the stamp of Inspector of the Range. In any case the authenticity of the debit notes has not contested by the Revenue. It is seen from the documents submitted in the appeal that Superintendent Range I had directed the appellant to reverse proportionate credit as per the provisions of then Rule 57CC of the Central Excise Rules which provided for the procedure of payment of duty on inputs used in the manufacture of exempted as well as dutiable final products. On this basis, the appellant was reversing the credit on molasses every month and intimating the department by means of the debit notes. The total amount of duty of ₹ 83,95,165/- on quantity of 16790.330 MT's of molasses has admittedly been paid. Therefore, the demand of duty on molasses used in the manufacture of exempted ethyl alcohol is not sustainable - Decided in favour of assessee.
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2014 (10) TMI 681
Attachment of the movable and immovable properties - priority over the rights - Preference to Banking company or Central Excise Department - Failure to pay amount due - Held that:- if the contention on behalf of the petitioner is accepted, in that case, Section 11(E) of the Central Excise Act, by which, there would be a statutory first charge over the properties of the defaulter in favour of the Central Government with respect to their excise dues would become redundant and / or nugatory. Under the circumstances, contention on behalf of the petitioner that despite Section 11(E) of the Act their right to recover dues of the borrower / mortgagee in exercise of powers under Section 29 of the SFC Act, cannot be accepted. - Decided against the appellant.
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2014 (10) TMI 680
Manufacture - whether conversion of HR Coils into CR Sheets/Strips amounts to manufacture or not - Held that:- Heading 72.08 and 72.09 of the Central Excise Tariff are based on the HSN heading 72.08 and 72.09 respectively and similarly heading 72.11 of the Central Excise Tariff is based on the same heading - 7211 of the HSN. Explanatory Notes to HSN heading 72.09 readwith Explanatory Notes Part IV B to Chapter 72 make a clear distinction between the cold rolled products and hot rolled products. According to the HSN Explanatory Notes to 72.09, the Cold rolled products of this heading because of their special properties - better surface finish, better aptitude to cold forming, stricter tolerance higher mechanical strength and generally reduced thickness are in general used for purposes different from those of their hot rolled counter parts and that cold rolled products are used in particular in the manufacture of automobile bodies, metal furniture, domestic appliances and for producing angles, shapes, sections by a cold process and that they are easy to coat by tin plating, electro plating, varnishing, enameling and coating by plastic etc. Thus it is clear that not only the cold rolled products and hot rolled products have different characteristics, but they have different uses and different commercial identity. Therefore, we hold that cold rolling of HR Coils results in emergence of a new product with distinct and different commercial identity, characteristics and uses and therefore this process would amount to manufacture. In view of this, we uphold the Commissioner’s finding on this point.
Shortage of 1145.35 M.T. of HR Coils - Held that:- from the correspondence between the appellant and M/s HSC it is also seen that in December 2000, the appellant had asked M/s HSC to return the quantity without any job work and according to the appellant, the coils in respect of which the Cenvat credit had been taken, have been sold on payment of duty under the invoices issued under Rule 57AB. The Commissioner while confirming the demand on the entire quantity of 1145.35 M.T. of HR Coils had not considered, the appellant s plea that out of 1145.35 M.T. of HR Coils, 1106.34 M.T. of HR Coils had been sold as such under invoices issued under Rule 57AB and the balance quantity had been taken up by them for processing into CR Sheets/Strips. When the appellant have produced the invoices issued under Rule 57AB regarding sale of the HR Coils on payment of duty, this claim has to be examined which could be done by ascertaining as to whether the Cenvat credit availed in respect of the 1106.34 M.T. of HR Coils out of 1145.35 M.T. of Coil received from SAIL had been reversed. If duty on 1106.34 M.T. of HR Coils equal to the Cenvat credit availed had been paid, the same cannot be demanded again. This aspect has not been examined in the impugned order. Similarly, the Appellant s claim that about 39 M.T. of HR Coils had been taken up for processing had also not been examined. In view of this, the demand of duty on 1145.35 M.T. Cenvat credit availed HR Coils would have to be set aside and the matter would have to be remanded to Commissioner for denovo adjudication.
Suppression of production - clandestine removal of goods - Held that:- The appellant’s contention that the difference regarding quantity of the CR Sheets produced recorded in the two registers may due to calculation mistake is a vague explanation and on this point we agree with the Commissioner’s finding that the difference of 18.87 M.T. had been clandestinely removed without payment of duty. Therefore, the duty demand on this quantity also has to be upheld.
Duty demand on clandestine removal of 800.263 M.T. of CR Sheets (570.833 M.T. + 18.870 M.T. + 22.22 M.T. + 66.64 M.T. + 121.7 M.T.) and duty demand of 4.296 of HR/CR Scrap, alongwith interest on this duty under Section 11AB and penalty on the Appellant company under Section 11AC equal to the duty demand, is upheld. However, the duty demand on 42.425 M.T. of Silicon Electrical Steel and Cenvat credit demand on alleged shortage of 1145.335 M.T. of HR Coils is set aside and the matter is remanded to the Commissioner for denovo adjudication after considering the explanation given by the appellant - Decided partly in favour of assessee.
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2014 (10) TMI 679
Disallowance of CENVAT Credit - outward transportation charges - invocation of the extended period of limitation - Place of removal - Held that:- there is no provision in the Central Excise Act, 1944 or its rules or in any Circular issued by the Board, that where Duty is charged on a specified rate, the place of removal would invariably be the factory gate. The place of removal would depend upon the specific transaction in issue and where the removal is pursuant to sales on FOR basis, with the risk in the goods manufactured being borne by the manufacturer till delivery to the customer at its premises and where the composite value of sales include the value of freight involved in delivery at the customer s premises, the place of removal would not be at the factory gate, but at the customer’s premises, held the High Court.
The certificates issued by assessee’s customers to this effect and adverted to in paragraphs H.13 of the impugned order, the conclusion is irrestible that sales by the assessee were on FOR basis and therefore the assessee had legitimately availed Cenvat credit on the service tax paid on the freight charges borne for its FOR sales. - Following decision of Ultratech Cement Ltd. vs. CCE, Raipur reported in [2014 (8) TMI 788 - CHHATTISGARH HIGH COURT] - Decided in favour of Assessee.
Adjudication and drafting of adjudication orders requires training; and incompetent departmental adjudication ill serves the interests of the State. Apart from accentuating the appellate docket load, such casual orders contribute to faith deficit in the process of departmental education and imperils the due process of law. The appropriate authorities may consider this pathology writ large in departmental adjudication. For this purpose, we direct that a copy of this judgment be marked to the Board of Central Excise and Customs and to the Secretary (Revenue), Ministry of Finance, Department of Revenue, for consideration.
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2014 (10) TMI 678
Denial of refund claim - Unjust enrichment - Held that:- Commissioner (Appeals) has recorded in favour of the respondent assessee, that it has collected the duty of excise as per the commercial invoice and have not collected the higher duty as indicated in the excise invoice. Further, the appellate authority has considered the C.A. certificate which also categorically indicated that the assessee has not passed on the burden of duty/differential duty to its customers and had also relied on ruling of the Tribunal in the case of Commissioner of Central Excise Vs. Shethia Audio Pvt. Ltd. - [2003 (2) TMI 133 - CEGAT, MUMBAI]. Further, I hold that ruling relied upon by the Revenue are not applicable in the facts and circumstances of the case. The main ground of the Revenue is that the learned Commissioner (Appeals) has allowed the appeal of the respondent assessee taking notice that the prices have remained the same before and during the period in dispute. It is not the case as evident on perusal of the impugned appellate order. Thus, I uphold the appellate order and dismiss the appeal of the Revenue. The respondent assessee will be entitled to refund with interest, if any - Decided against Revenue.
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2014 (10) TMI 677
Denial of refund claim of unutilized CENVAT Credit - Refund on closure of factory - The main contention of the learned Counsel of the appellants is that Rule 5 allows refund in cases where for any reason adjustment of accumulated credit is not possible against duty on final products cleared for home consumption. The closure of their factory is well covered by the phrase “for any reason” - Doctrine of merger of appeal - Held that:- Important part of Rule 5 is that it allows refund of unutilized CENVAT Credit subject to such safeguards, conditions and limitations as may be specified by the Central Government by Notification. It is seen that the Central Govt. has issued Notification 5/2006 dated 14.03.2006 which prescribes the conditions and limitations for availing the refund. The basis of determining the refund amount is the export clearances of the final products as mentioned in the appendix to the Notification. The Notification provides for submission of documents such as shipping bills etc. If the appellants' contentions were accepted it would mean that the reference to conditions and limitations in Rule 5 is to no effect and such conditions specified in Rule 5 read with Notification 5/2006 are superfluous. Rule 5 clearly states that refund shall be allowed subject to such conditions as may be specified. In the present case the conditions are not fulfilled. Therefore, refund in such cases of closure of factory is not provided under the statute. - Decided against the assessee.
If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. with due respect to High Court's observation in the matter in the case of the appellants, and after detailed analysis, have come to the conclusion that the refund claim does not have sanction of law - Decided against assessee.
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2014 (10) TMI 676
Waiver of pre deposit - Denial of Cenvat credit - various input services - scope of the term "activities relating to business" - Held that:- Disputed services indicated should merit consideration as 'input service', since those services are used in relation to the business of manufacture of final product by the appellant. However, I find from the impugned order that the Cenvat credit has been denied on some of the taxable services for non-submission of documents, substantiating the eligibility for taking credit. Therefore, considering the fact that the appellant had not properly presented its case even in two rounds of litigation before the adjudicating authority, I direct the appellant to make a pre-deposit - Thereafter, the adjudicating authority shall decide the matter of eligibility of Cenvat credit on the disputed services upon verification of the relevant documents after providing opportunity of hearing to the appellant - Decided partly in favour of assessee.
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2014 (10) TMI 675
Simultaneous availment of exemption Notification and CENVAT Credit - Notification No. 46/2003-CE dated 17/05/2003 - Held that:- Notification No. 46/2003-CE dated 17/05/2003 grants exemption from National Calamity Contingent Duty (NCCD) on goods falling under 54.02, if they are manufactured from goods falling under same heading 54.02. The purpose of exemption is that there is no double levy of duty (NCCD) on goods falling under 54.02 both at the stage of POY as well as at the stage of texturised yarn and the duty liability has to be discharged only once, either at the stage of POY or at the stage of texturised yarn. Therefore, once the exemption is availed, the question of taking any credit once again on the POY captively consumed and utilizing the same elsewhere would not arise. Though there is no one to one co-relation required between the input and output, explanation to sub-rule (7) makes it abundantly clear that if there is a conflict between the provisions of this rule and provisions of notification, the provisions of notification shall prevail.
Simultaneous availment of duty exemption and benefit of cenvat credit militates against the very object of NCCD levy and would lead to huge leakages in revenue. Therefore, the impugned order is not sustainable in law. Accordingly we set aside the same and hold that the appellant is liable to reverse the credit taken along with interest thereon as correctly held in the adjudicating authority's order. However, since the issue relates to interpretation of law, imposition of penalty is not warranted. Accordingly, we set aside the penalty imposed - Decided partly in favour of Revenue.
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2014 (10) TMI 639
CENVAT Credit - Whether Cenvat Credit attributable to the quantity of Inputs (Molasses) used in, or in relation to manufacture of exempted final product (Rectified Spirit, attracting nil rate of duty and which was reported as wastage / storage loss) should not be reversed as per provisions of para (a)(i) of Sub-Rule 3 of Rule 6 of CENVAT Credit Rules, 2004 - Held that:- Rectified spirit, as we have already noted, is not dutiable being assessable at NIL rate, which, by the CENVAT Credit Rules, is exempted. Being exempt the final product, respondent could not possibly have claimed CENVAT credit in respect of the same.
When admittedly duty paid molasses have been used for the manufacture of rectified spirit for which a formula has been deployed by the authorities; we can proceed on the basis that a particular quantity of duty paid molasses is used for the manufacture of the final product, which, because it is not dutiable, respondent becomes disentitled to claim CENVAT credit on the same. In such circumstances, the direction, which is impugned by the respondent, namely, to reverse the credit and imposition of the penalty and the interest for the failure to do so, cannot be complained of. Merely because it is not cleared for the reason that it cannot be cleared does not mean that the manufacture did not take place. The credit standing to the account of duty paid molasses used for the purpose of producing the non-dutiable final product necessarily must be proportionately reduced. The danger of the party using it for other purposes as highlighted by the Commissioner cannot be overlooked by us - Decided in favour of Revenue.
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2014 (10) TMI 637
CENVAT Credit - Capital goods or Inputs - items falling under Chapter 73 - Held that:- Rule 57 of the Central Excise Rules deals with credit of duty paid on the excisable goods used as inputs. Rule 57Q relates to credit of duty paid on capital goods used by the manufacturer of specified goods. The Tribunal had relied on assessee's own case reported in Madras Aluminium Co. Ltd. (2000 (12) TMI 607 - CEGAT, CHENNAI). The said order deals only with 57A of the Central Excise Rules, where many of the inputs were considered for credit. Therefore, the Tribunal is correct in holding that the inputs are used directly or indirectly for the manufacture of final product as per Rule 57A of the Central Excise Rules during the relevant period. assessee is entitled for credit for the above said items - Decided against Revenue.
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2014 (10) TMI 636
Imposition of penalty - compounded levy scheme - Failure to remit duty within prescribed time limit - Tribunal set aside penalty - Held that:- Any law or stipulation prescribing a period of limitation to do or not to do a thing after the expiry of period so stipulated has the consequence of creation and destruction of rights and, therefore, must be specifically enacted and prescribed therefor. It is not for the Courts to import any specific period of limitation by implication, where there is really none, though Courts may always hold when any such exercise of power had the effect of disturbing rights of a citizen that it should be exercised within a reasonable period. The period of five years has been held to be reasonable period for initiating penalty proceedings. Tribunal had rightly upheld the order of Commissioner (Appeals) deleting the penalty on the ground that the proceedings for the same were initiated after 5 years from the relevant date. Accordingly, no substantial question of law arises. - Following decision of Raghuvar (India) Ltd.'s case [2000 (5) TMI 40 - SUPREME COURT OF INDIA] - Accordingly, no substantial question of law arises. - Decided against Revenue.
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2014 (10) TMI 635
Classification of the product “Cheeselings” - appellant classified the same as ready to eat packaged foods not falling under the category of “Namkeen” - Penalty under Rule 25 of the CER, 2002 - CENVAT Credit - Held that:- appellant is not allowed to take the CENVAT credit, they are required to discharge duty @2% ad valorem and the duty liability would be approx ₹ 25.46 lakhs. If the appellant is allowed to take the CENVAT credit, the duty liability would be 6% ad valorem and the appellant would be eligible take CENVAT credit of ₹ 56 lakhs then the duty liability would be approx. ₹ 23.46 lakhs - partial stay granted.
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2014 (10) TMI 634
Denial of refund claim - Unjust enrichment - Held that:- Appellant is a job worker who is engaged in the activity of processing of unprocessed fabrics. For processing, the appellant is manufacturing printing paste on which he is not paying duty on their job charges. Only on persuasion of the department, the appellant paid duty on the activity of manufacturing of printing paste which used in their job work activity, under protest. Later-on it was held that the activity of manufacturing of printing paste does not amounts to manufacture therefore, duty is not payable at all. In the circumstance, when the goods are duty-free therefore, the provisions of Central Excise Act, 1944 are not applicable as held by the Hon'ble High Court of Bombay in the case of Biochem Pharmaceuticals (2006 (1) TMI 272 - CESTAT, MUMBAI). When the provisions of Central Excise are not applicable in that case bar of unjust enrichment is also not applicable. Therefore, relying on the decision of Biochem Pharmaceuticals (supra), I hold that in this case bar of unjust enrichment is not applicable - Decided in favour of assessee.
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