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2015 (12) TMI 1207 - MEGHALAYA HIGH COURT

2015 (12) TMI 1207 - MEGHALAYA HIGH COURT - TMI - Refund claim - fixation of Special Rate in respect of its product, namely, Ferro Silicon for the year 2011-12 representing the actual value addition - notification No. 17/2008 CE dated 27.3.2008 (as amended vide Notification No. 31/2008 CE dated 10.06.2008) - reduction of entitlement from 100% to 39% - Non production of relevant documents - Held that:- Union of India, could not point out anything further except what is provided in the affidavit-i .....

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red to be given by the quasi judicial authority within a period of 4 (four) weeks from the date of receipt of a copy of this order - Impugned order is set aside - Decided in favour of assessee. - WP (C) No. 39 of 2015 - Dated:- 26-5-2015 - Uma Nath Singh, CJ And T. Nandakumar Singh, JJ. For Petitioner : Mr N Das Gupta, Adv For the Respondents : Mr R Deb Nath, CGC JUDGMENT ( UN Singh, CJ ) We have heard learned counsel for parties and perused the pleadings of the writ petition. 2. The petitioner .....

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sent the actual value addition of its product Ferro Silicon for the financial year 2011-12 in terms of Para 2.1 of the Notification No. 17/2008- Central Excise dated 27.03.2008, as amended by the Notification No. 31/2008-Central Excise dated 10.06.2008. It is the case of the petitioner that the claim for fixation of Special Rate in respect of its product, namely, Ferro Silicon for the year 2011-12 representing the actual value addition was submitted to respondent No.1 way back on 29.09.2011 and .....

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missioner of Central Excise, Shillong, within a stipulated period of three months from the date of receipt of the application. In the instant case, the Original Application was filed on 29.09.2011. The Balance Sheets and other related certificates were submitted on 01.11.2011. The said documents were admittedly received in the office of respondent No. 1 on 14.11.2011. Therefore, as per aforesaid provisions of law, respondent No. 1 was under obligation to decide the claim on or before 14.02.2012. .....

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s no question of payment of excise duty at the time of purchase of raw materials. Therefore, there was no credit available on that count. It is also the submission of learned counsel, that when the goods after production were to be moved as finished goods, the petitioner company had paid 100% excise duty. However, as per the notification of 2008, only a claim of 39% exemption was maintainable. Thus, when the company made an application with certificate of statutory auditor in favour of its claim .....

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ansaction periodically to the local Excise Officer and therefore, the Commissioner was required to take decision on that basis, instead of demanding fresh documents. Learned counsel for the petitioner, also referred to para 9 of the petition to argue that the company has already supplied essential documents required for verification of the certificate and balance sheet by the Customs and Central Excise authority. The said para states as under: That there is no provision of law which requires tha .....

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production, Central Excise Invoices sale and removal of the excisable commodity were always made available to the Department by the petitioner on a monthly basis mandatorily. Sale value, value of raw materials consumed, opening and closing stock were already available with the Respondent Authorities as mentioned above. Learned counsel for the respondent on the other hand, referred to para 12 of the affidavit-in-opposition on behalf of respondents No. 1, 2 & 3. The said paragraph is also repr .....

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of private records are as below: (i) The fact that the rules do no prescribe statutory records‟ shall not be construed that no records has to be maintained. Every assessee shall maintain private records. (ii) The rules which requires certain records to be maintained, are self contained and they specify the minimum information that an assessee MUST enter in his record; (iii) Every assessee shall on demand make available to the Range officer duly empowered by the Government of India/Commiss .....

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e information available in the audited Balance Sheet is consolidated and as such detailed cross checking could not be made for fixation of special rate which is a mandatory requirement. Hence, details breakup like Raw materials/Packing materials Ledgers/invoices/register, Freight Ledger, Sale Invoices, Transit Insurance etc. which is available with the petitioner only is mandatory for taking into consideration for fixation of special rate. As stated by the petitioner that statutory records namel .....

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ntity of production and quantity of opening & closing stock is reflected there, but no entry of value which is necessary for fixation of special rate. In RG-23 only Cenvatable raw materials is available, in fixation of special rate both Cenvatable and non-cenvatable raw materials is necessary. The petitioner is trying to mislead this Hon‟ble Court on furnishing wrong information and it is stated that Central Excise invoices reflecting sale and removal of the excisable commodity are not .....

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e fact that all required information such as sale value, value of raw materials, opening and closing stock etc were all along available with the Range Office as the same were mandatorily submitted by the petitioner to the Central Excise Range Office on a monthly basis without fail. Neither there is any statutory provision nor are there any departmental instructions in force for maintenance and/or production of private records to the Central Excise Authority. This is an glaring example of failure .....

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on could not be caused by the Department whereas para 4 of the impugned Order dated 24.12.2014 clearly mentions that the verification was done by the Shillong Central Excise Division and also submitted report to the competent authority. (iii) That it is transpired from para 6 of the impugned order of the Respondent No. 1 dated 24.12.2014, that the respondent Authority have started making correspondence in the matter after more than 3 years when the petitioner‟s factory, being not finally v .....

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