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Central Excise - Case Laws
Showing 21 to 40 of 168 Records
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2016 (5) TMI 1242 - CESTAT NEW DELHI
Denial of refund - Unjust enrichment - Held that:- The Commissioner (Appeals) in the impugned order held that the Original Authority is bound to follow the earlier appellate order, which allowed the adjustment of excess with short payment during the finalization of provisional assessment. On this issue, the impugned order cannot be faulted as such adjustment of duty on finalization of provisional assessment is held to be legally valid by the Tribunal in Hindustan Zinc Ltd. [2015 (11) TMI 953 - CESTAT NEW DELHI (LB)]. The Tribunal followed the decision of the Hon’ble Karnataka High Court in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. Vs. CCE,LTU, Bangalore [2011 (10) TMI 201 - KARNATAKA HIGH COURT]. Considering the ratio followed by the Tribunal, no merit found in the present appeal filed by revenue. - Decided against the revenue
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2016 (5) TMI 1241 - CESTAT NEW DELHI
SSI Exemption - wrong valuation - Tread rubber cleared by the appellant was not valued at the rate of 115% (or 110% with effect from 05.07.2003) of the cost of production and when so done, the appellants exceeded the SSI exemption limit prescribed under Notification No.8/2003-CE, dated 01.03.2003 - Willful mis-statement or suppression of facts. - Period of limitation - Demand of duty alongwith interest and imposition of penalty -
Held that:- in the case of Uniworth Textiles Ltd. Vs. CCE, Raipur [2013 (1) TMI 616 - SUPREME COURT] it was held that mere non-payment of duties is not equivalent to collusion or wilful mis-statement or suppression of facts, otherwise there would be no situation for which ordinary limitation period would apply. Inadvertent non-payment is to be met within the normal limitation period and the burden is on Revenue to prove allegations of wilful mis-statement. The onus is not on the assessee to prove its bona fides. In the case of Chemphar Drugs Liniments [1989 (2) TMI 116 - SUPREME COURT OF INDIA], the Supreme Court held that some positive other than mere inaction or failure on the part of the assessee or conscious or deliberate withholding of information when assessee knew otherwise, is required before it is saddled with the liability the extended period. In the case of Continental Foundation Joint Venture [2007 (8) TMI 11 - SUPREME COURT OF INDIA], Supreme Court went to the extent of ruling that mere omission to give correct information is not suppression of facts unless it was deliberate and that an incorrect statement cannot be equated with wilful mis-statement. In the case of Vivek Re-rolling Mills Vs. Collector [1995 (8) TMI 317 - SUPREME COURT], Supreme Court held that extended period is not invokable when assessee had reason to believe that its goods were exempted. Bombay High Court in the case of CC Vs. Star Entertainment [2015 (2) TMI 1050 - BOMBAY HIGH COURT] in effect held that extended period is not invokable in the case of unclear or doubtful legal position.
In view of the above, the allegation of wilful mis-statement or suppression of facts cannot be sustained. It is found that the Show Cause Notice was issued on 22.03.2006 where the demand pertains to the period 2001-02 to 2003-04 and therefore the entire demand is beyond normal period of one year. We may point out that the Notification No.8/2003-CE, dated 01.03.2003 cited in the Show Cause Notice was effective from 01.04.2003 while part of the demand pertains to the period prior to the date of issuance of the said Notification. However, we need not dwell upon this point as the entire demand has been held to be time barred. By following the judgment of High Court of Allahabad in the case of CCEST Vs. Monsanto Manufacturer Pvt. Ltd. [2014 (4) TMI 505 - ALLAHABAD HIGH COURT], once the demand is held to be time barred there is no occasion for the Tribunal to enquire into the merits and such act of Tribunal was outside of its jurisdiction. Therefore, we refrain from discussing the merits of the case. - Decided in favour of appellant
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2016 (5) TMI 1240 - CESTAT KOLKATA
Admissibility - Cenvat Credit of GTA Services availed by the Appellant from the factory gate to their godown/depots - Held that:- the goods are sold from the godowns/depots of the Appellant and no sales are effected at the factory gate. Reliance placed by the department on the wording of Notification No.20/2007-CE dated 25.04.2007, to the effect that place of removal and point of clearance will be the factory gate of the Appellant, is mis-placed and is not the correct appreciation of law made by the First Appellate Authority. In the light of definition of input service given in Rule 2(l) of CCR read with the definition of place of removal , as defined in Section 4(2)(c) of the Central Excise Act, it is held that input service credit of the services availed upto the place of removal is admissible and in the present Appeals filed by the Appellant the place of removal will be godown/depots from where goods are sold and not the factory gate. - Decided in favour of appellant
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2016 (5) TMI 1239 - CESTAT CHENNAI
Eligibility of Cenvat credit - received material from HMIL and had paid duty which was indicated in the invoice - took credit based on the proper invoice issued by HMIL - HMIL paid the said duty and the goods were cleared under the cover of the said invoice - Held that:- the appellant’s contention is that there is nothing on record to show that the assessment of HMIL has been questioned by their jurisdictional officers, it would not be proper for any other officer to comment on the said payment has not been stated to be wrong or an erroneous proposition of law by the Revenue and therefore accepted. Therefore, by applying the decision of Hon'ble Supreme Court in the case of CCE Vs. MDS Switchgear Ltd. [2008 (8) TMI 37 - SUPREME COURT], the impugned order is liable to be set aside.
It is found from the original authority's order that he is not able to ascertain the correct amount of credit taken by HMIL and the correct amount which is required to be reversed by HMIL, when that is the position, it is not known as to how he can come to a conclusion that the appellant is not eligible to take credit of the amount mentioned in the invoice. As rightly pointed out by the appellant that the jurisdictional officers of HMIL have not disputed the duty paid and the alleged excess payment has not been granted as refund. Therefore, both the lower authorities have erred in denying the credit to the appellant.
Period of limitation - Invokation of proviso to Section 11A(1) of the Central Excise Act, 1944 - appellant availed the credit based on the duty amount paid by HMI as mentioned in the invoice - Held that:- when there is no dispute with regard to the payment of duty by HMIL, the same cannot be denied to the appellant. The instant case pertains to a situation where there is an excess payment of duty. Extended period can be invoked only when there is an intentional failure to pay duty which is not the case here. The appeal succeeds on limitation also as no credit in excess of the amount mentioned in the invoice was taken by them. - Decided in favour of appellant
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2016 (5) TMI 1216 - RAJASTHAN HIGH COURT
Seeking direction for grant of Excise Registration Certificate from date of application - Default in payment of excise duty and interest by erstwhile owner - Attachment of property - Held that:- petitioner has already withdrawn his application and is further willing to pay the amount of interest if he is granted liberty of making payment in twenty four installments. The application is pending consideration with the authority concerned. Therefore, we direct the authority to appropriately consider and decide the application made by the petitioner for payment of interest in twenty four installments. It would be expected from the authority concerned that if nothing adverse exist, the prayer made may be accepted. In that case and on payment of interest, the authority would further consider for Excise Registration Certificate from the date of application. It is however made clear that if the prayer for payment of interest in installments is accepted, the authority would obviously be at liberty to calculate the interest of the intervening period over the amount of interest and thereupon to make installments. - Petition disposed of
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2016 (5) TMI 1215 - HIMACHAL PRADESH HIGH COURT
Imposition of penalty - Delay in payment of duty - Whether penalty imposable under Rule 27 or under Rule 25 of the Central Excise Rules, 2002 - Held that:- in view of the judgment made by the High Court of Gujarat in the case of Commissioner of C. Ex. & Customs versus Saurashtra Cement Ltd. [2010 (9) TMI 422 - GUJARAT HIGH COURT], the penalty could not be levied under Rule 25 of the Rules. - Appeal disposed of
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2016 (5) TMI 1214 - GUJARAT HIGH COURT
Monetary limit for entertaining an appeal - High Court limit is ₹ 15,00,000/- - Demand is less than ₹ 15,00,000/- - Held that:- the appeal is disposed of as the amount involved in the present case is less than the monetary limit prescribed for preferring an appeal before the High Court. However, in case there is any error in the computation of the demand involved or if for any reason, the instruction is not applicable, it would be open for the appellant to seek revival of the appeal. - Appeal disposed of
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2016 (5) TMI 1213 - CESTAT BANGALORE
Whether the order of refund sanctioned by the JAC is in accordance with Rule 5 of Cenvat Credit Rules 2004 read with Notification No. 5/2006 dated 14.03.2006 and whether the Order-in-Appeal has traversed beyond the grounds of appeal authorized in the review order of the Commissioner of Central Excise under Section 35E(2) of the Act and finally whether for recovery of an erroneous refund, the department is required to issue a show-cause notice under Section 11A or not - Held that:- the Assistant Commissioner has sanctioned the refund claims after satisfying himself with regard to the conditions as contained in the Notification 5/2006 dated 14.03.2006 and there is no infirmity in the orders granting refund whereas the Commissioner (Appeals) has wrongly observed that the original authority has failed to bring on record in the impugned order whether the input/input services are used in relation to the manufacture of exported goods. Therefore, the appellants have furnished all the relevant documents to the satisfaction of the sanctioning authority and the sanctioning authority in all the refund orders has clearly held that the appellants have fulfilled all the conditions stipulated in the Notification No. 5/2006 dated 14.03.2006 and there are no legally sustainable ground on which the validly sanctioned refund orders should be set aside and therefore the findings returned by the Commissioner (Appeals) on merit are set aside. it is also found that the impugned order is beyond the grounds on which the permission was granted to prefer an appeal in the review order which is not permitted by law.
Therefore, I do not consider it appropriate to record a finding on this point once the appellant is succeeding on merit and therefore I do not think it appropriate to decide this issue in this case when the appellant is otherwise entitled to the relief on merit and therefore I hold that the impugned orders are unsustainable in law and are set aside. - Decided in favour of appellant
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2016 (5) TMI 1205 - CESTAT CHENNAI
Eligibility of Cenvat credit - Debit notes raised for claiming reimbursement of rack handling charges, wagon handling charges and port railway usage charges and service tax thereon paid by them - Held that:- by respectfully following the decision of Hon'ble Apex Court in the case of Indian Farmers Fertilizer Coop Ltd. Vs CCE Ahmedabad [1996 (7) TMI 141 - SUPREME COURT OF INDIA] and also by relying on the decision of Tribunal in the case of Shree Cement Ltd. Vs CCE Jaipur [2013 (3) TMI 79 - CESTAT NEW DELHI], the appellant is eligible for Cenvat credit. - Decided in favour of appellant
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2016 (5) TMI 1204 - CESTAT MUMBAI
Entitlement for Nil rate of duty in terms of Notification No.180/88-CE dt. 13.5.1988 - Aluminium products manufactured out of waste and scrap of Aluminium purchased from open market - Held that:- the waste and scrap was procured from open market and not from any particular manufacturer. The goods procured from open market cannot be related to a particular manufacturer. It cannot be presumed that the said waste and scrap has originated without payment of duty. Therefore, it has to be accepted that the waste and scrap used by the appellant for manufacture of their final product is duty paid accordingly, the condition of notification No. 180/88-CE stand fulfilled. Therefore the appellant is entitled for the said exemption notification by applying the decision of Tribunal in the case of Baroda Ferro Alloys & Ind. Ltd. Vs. Commissioner of C. Ex., Vadodara [1999 (11) TMI 385 - CEGAT, MUMBAI]. - Decided in favour of appellant
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2016 (5) TMI 1203 - SC ORDER
Whether summons issued by the respondent-authority is devoid of any merit and substance - Right to be accompanied by the lawyers - Petitioner is neither a Director nor a post holder in M/s Netshelter Marketing Limited - High Court did not find any reason to entertain the writ petition mainly for the various facts and reasons and therefore dismissed with a cost to deposit reported in [2016 (5) TMI 1156 - JHARKHAND HIGH COURT] - Apex Court dismissed the special leave petition
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2016 (5) TMI 1201 - MADHYA PRADESH HIGH COURT
Validity of order passed by the Settlement Commission - Violation of principles of natural justice - Calculation filed at the back of the petitioner and no opportunity granted to the petitioner to explain the same - Held that:- by considering the fact that no opportunity has been granted to the petitioner and therefore, the prayer is allowed the Settlement Commission is directed to consider the additional submissions of the petitioner filed on 22.12.2014 and after granting opportunity of hearing to the petitioner, pass an appropriate order within a period of two months from the date of filing of certified copy of the order. - Petition disposed of
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2016 (5) TMI 1200 - CESTAT NEW DELHI
Demand of Central Excise duty - confiscation of seized MS Pipes from two different premises; for imposition of penalties under the various provisions of Central Excise Rules, 1944 - correctness of the conclusion drawn by the Original Authority on the duty liability of the main appellant - Held that:- It is apparent that the admission of the main appellant to the limited duty liability, as mentioned and the rejection of their application for settlement of the case has been the main reason for confirmation the whole demand against the main appellant. We find that the Original Authority has to record the various evidences alongwith the reason for admitting such evidences after giving due consideration to the appellant’s plea. When the appellants made request specifically in writing for cross examination of the persons whose statements have been relied upon, the Original Authority's finding on such request has to be recorded. We find the request for cross examination itself has not been recorded. While admittedly non-payment of duty exist in this case, the quantification of non-paid duty has to be arrived at by analyzing the evidences and taking into account the defence submission alongwith their plea for cross examination as sought for by the appellant.
Considering the above we are constrained to observe that the impugned order in the present form cannot be sustained and has to be set aside. We do so accordingly. The case is remanded back to the Original Authority for a fresh decision keeping in view the observations made above. The appellants shall be given due opportunity to present their case and thereafter the Original Authority may decide the case as expeditiously as possible.
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2016 (5) TMI 1199 - CESTAT CHENNAI
Imposition of penalty - Rule 25 of the Central Excise Rules, 2002 and Rule 15(1) of CENVAT Credit Rules, 2004 for non-compliance of Rule 8,12 of Central Excise Rules, 2002 - Held that:- with regard to imposition of penalty under Rule 25 of Central Excise Rules, 2002 it is found that the Appellant has paid the tax along with interest even before the issuance of show cause notice and that there has been delay only in payment of duty by the Appellant and not default in payment of duty as alleged. The Appellant have admitted their duty liability in the ER-1 returns but have not paid the duty due to late receipt of money from their customers which have not been disputed by the revenue. Therefore, by applying the decision of Gujarat High Court in the case of Commissioner of Central Excise & Customs vs. Saurashtra Cements Ltd. [2010 (9) TMI 422 - GUJARAT HIGH COURT] which was affirmed by Hon'ble Supreme Court reported in [2014 (1) TMI 264 - SUPREME COURT OF INDIA], the penalty imposed under Rule 25 ibid is set aside.
With regard to imposition of penalty under Rule 15(1) of CENVAT Credit Rules, 2004, it is found that the same has arisen out of the fact that the Appellant had violated Rule 8(3A) of Central Excise Rules, 2002 as regards payment of duty. I find that the law is settled as regards demand of duty/credit restriction on account of Rule 8(3A) of Central Excise Rules, 2002. Since Rule 8(3A) of Central Excise Rules, 2002 has been held constitutionally invalid; I find no other reason as to why CENVAT Credit should not be used for payment of duty. Hence the penalty levied under Rule 15(1) of CENVAT Credit Rules, 2004 is also liable to be set aside. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 1198 - CESTAT NEW DELHI
Demand of duty - Capacitors cleared by BCEPL without payment of duty under the cover of challans and documents in the name of BCPL - Held that:- on careful consideration of the evidences as analyzed by the Commissioner (Appeals), it is clear that the clearances of excisable goods from the premises of BCEPL could not be attributed to the old stock of capacitors purported to have been cleared in 1994 to the Indore Office of BCPL. There are sufficient evidences to support the conclusion of the lower authorities. Further, the inconsistencies in the pleas made by BCEPL, tends to support the case of non-duty paid clearances.
Period of limitation - Demand of modvat credit - inputs not utilized in the manufacture of final product - Held that:- it is seen that BCEPL have opted out of modvat scheme to avail exemption at the end of financial year 1998-99. Due intimation has been given to the Department. In the impugned order, the demand of modvat credit was set aside on the ground of time bar. It is a fact that the allegation of inputs having not been used in the manufacture of final product before opting out of modvat scheme has been based on the modvat accounts, RG-I and other records maintained by the BCEPL. As pointed out in the impugned order, there is no allegation of clandestine removal of goods on which credits were availed. I agree with the findings of the ld. Commissioner (Appeals) on this issue of demand being hit by time bar.
Demand of modvat credit - wires and cables cleared under various challans - Held that:- the findings of the ld. Commissioner (Appeals) is that these cables and wires have been cleared by BCEPL in connection with installation work for MPEB, at various places. It is an admitted fact that these cables and wires are required for such installation. In the absence of evidences on record to the contrary, there is nothing to indicate that BCEPL have collected amount over and above the invoices raised to MPEB and as such, the demand on wires and cables could not be sustained. I agree with the findings of the ld. Commissioner (Appeals) in this regard.
Reduction of penalty by Commissioner (Appeals) - Section 11 AC of the Act - Held that:- ld. Commissioner (Appeals) examined the applicability of Section 11 AC introduced on 28.09.96. Considering the application of legal provisions during the material time and also considering the findings on duty liability as well as the period involved in such liability, the Commissioner (Appeals) had examined and given his findings in the impugned order. There is no infirmity in the said findings. Similarly, regarding penalties on BCEPL and Shri Ajit Bhandari, the impugned order requires no modification in view of the above analysis and findings. The impugned order is upheld - Appeals dismissed
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2016 (5) TMI 1197 - CESTAT MUMBAI
Entitlement for availment of Cenvat credit - receipt of duty paid goods i.e. Oil Slump Body, Cylinder Head & Rover Cylinder - availed Cenvat credit thereon - reissue the same on payment of duty or for export - no manufacturing activity has been undertaken - Held that:- the assesee is entitle to avail Cenvat credit on the duty paid goods even though the said duty paid goods does not undergo manufacturing process. The only condition is that if the duty paid goods is cleared after process which amounts to manufacture, the assesee is required to pay duty on the transaction value and if the goods are cleared without manufacturing process the duty which required to be paid is equal to the Cenvat credit availed. Rule 16 also holds the duty paid goods as inputs therefore the Cenvat credit is admissible.
Entitlement for availment of Cenvat credit - Inward GTA service - goods on which credit was allegedly wrongly taken is not input service - Held that:- the goods are inputs in terms of Rule 16, therefore, the inward transportation of such goods shall be undoubtedly qualified as input service, even as per the interpretation drawn by the Ld. Commissioner, therefore the credit on inward GTA service in respect of transportation of the goods namely Oil Slump Body, Cylinder Head & Rover Cylinder is also admissible. Since we are of the view that Cenvat credit in respect of the goods is admissible in terms of Rule 16 and consequently Cenvat credit is admissible on GTA service, we are not going into other issues raised by the Ld. Counsel. The impugned order is set aside. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 1196 - CESTAT ALLAHABAD
Clandestine removal of goods - Shortage of quantity of MS ingots and MS bar - Demand of duty and imposition of penalty - Section 11 AC of the Act - Contravention of provisions of rules 4, 6, 8, 10, and 11 of the CER 2002 - Held that:- it is found that there is discrepancy in the manner of stock taking. Such manner of stocktaking can give only an estimation and an approximate result. Based on such an approximate calculation which is in the nature of eye estimation, no adverse inference can be drawn against the appellant. It is further evident that the statement recorded of the director on 19/6/08 was recorded in the dead of the night and as such no reliance can be placed on any admissions made in such a statement which can not be said to be freely given. It also indicates the high handedness adopted by the inspection team during the course of inspection and recording of statement. I further hold that deposit of tax does not amount to admission on the part of the appellant. The appellant have neither shown or admitted clearance in the subsequent returns and nor have admitted any clandestine removal categorically. On being questioned, pointedly for the alleged shortage it was stated by the Director, the production figures are reported by the person who is not much educated and as such there are discrepancies due to inadvertence. It further found that revenue have not brought any incidence or corroboration as to clandestine removal of the finished goods. Therefore, the impugned order is set aside. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 1124 - CESTAT KOLKATA
Valuation - additions / deductions from the assessable value u/s 4 - Quantification of duty liability - whether appellant has correctly calculated duty liability of ₹ 6,35,26,796/- based on remittances made to Joint Plant Committee (JPC) or the duty liability should be ₹ 11,17,74,702/- as calculated by the Adjudicating authority? - Held that:- As per the procedure prescribed all the member Steel Plants, including the present appellant were required to remit JPC levies to the Joint Plant Committee. Under this factual matrix department was not right in asking the appellant to provide certain information on production & clearances made or to calculate JPC levies from the figures available in the periodical RT-12 returns filed with the department.
What is required to be added to the assessable value is the JPC levies remitted to the JPC. If there was any short payment of JPC levies then JPC could have asked the appellant to remit the same but department can not calculate a figure to add to the assessable value on their own based on RT-12 returns. Appellant has calculated on amount of ₹ 6,35,26,796/- based on remittances made to JPC based on certain receipts issued by JPC without supported by a chartered / cost accountant certificate. It is also observed from Para- 5 of Stay order passed by this bench that department had ample powers under the statute to Summon & Call for necessary documents and that in the absence of any documentary evidence, higher demand is prima facia not sustainable. At the same time appellant should have produced either a certificate from JPC to the effect as to how much JPC levies was remitted by the appellant during the relevant period or produce a chartered / cost accountant certificate indicating the basis of calculating duty liability of ₹ 6,35,26,796/-. For this purpose alone the matter is remanded back to the adjudicating authority as demand of ₹ 11, 17, 74,702/- calculated by the department is not sustainable. Needles to say that an opportunity of personal hearing should be extended to the appellant to substantiate their claim based on documents / certificate suggested above as to how much JPC levies have been remitted to JPC during the relevant period.
Appeal filed by the appellant is allowed by way of remand to the Adjudicating authority for deciding the issue of quantification of demand in the light of observations made above.
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2016 (5) TMI 1123 - CESTAT NEW DELHI
Period of limitation - extended period of limitation - whether no willful misstatement/ suppression of facts and therefore the extended period was not invokable and the SCN was issued beyond the normal period of one year? - Held that:- Supreme Court in the case of Continental Foundation (2007 (8) TMI 11 - SUPREME COURT OF INDIA ) has observed that when there was scope for entertaining a bonafide doubt the extended period of limitation was not available. At this juncture, it is pertinent to mention that the suppression of facts/ willful misstatement is a combined question of facts and law, and therefore, precedential value of various judgments on this issue has to be determined in the context of the facts of each case. In case of CCE Vs. Chemphar Drugs Liniments [1989 (2) TMI 116 - SUPREME COURT OF INDIA ], the Supreme Court held that “something positive other than mere inaction or failure on the assessee’s part or conscious withholding of information when assessee knew otherwise is required for invoking extended period”. In the light of the foregoing analysis, the allegation of willful misstatement/ suppression of facts is not sustainable against the respondent. Consequently, we hold that the Commissioner was justified in dropping the impugned demand as time barred. - Decided in favour of assessee.
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2016 (5) TMI 1122 - CESTAT ALLAHABAD
Cenvat credit on purchase of raw material - sponge iron being the raw material/inputs purchased from registered dealer - goods received on endorsed invoices - goods were sold in transit - Held that:- From a perusal of the invoices in question, it is find that the so-called certificate (invoices) as mentioned in the Order-in-Original, in the invoices, has been mis-conceived by the adjudicating authority as a certificate by the appellant. In fact, it is certified by the seller of inputs - M/s Chachan Metals Pvt. Ltd., Shamli dated 18/9/2007, certifying that the goods covered by the invoice where received directly from factory/Depot/consignment agent located at Ramchandrapur, Orissa. As find that the adjudicating authority misread the document by interpreting it as this certificate is given by the appellant leading to the illogical conclusion drawn. Thus, find that the impugned orders suffer with mistake of fact and accordingly, the same is fit to be set aside. Further it is the admitted case of Revenue that M/s Chachan Metals Pvt. Ltd., Shamli, received the goods along with the endorsed invoices, which is a normal trade practice where goods are resold during transit. That there is nothing wrong in diverting the goods in transit by the same Company, that is M/s Chachan Metals Pvt. Ltd., Kanpur to their own office at Shamli. Further, find that it is an admitted fact that the revenue have accepted the taking of credit by M/s Chachan Metals Pvt. Ltd., Shamli. Accordingly, allow the appeal in favour of assessee.
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