TaxTMI 
TaxTMI 
2018 (12) TMI 551
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.... No.6/2006-CE, the goods should also be exempted under Customs Notification No.21/2002-Cus. by fulfilling the conditions imposed thereon inter alia, condition 32 (b) (i) viz. production of a certificate from a duly authorized officer of the Director General of Hydro Carbons in the Ministry of Petroleum and Natural Gas, Government of India and that neither the appellant nor the sub contractor had produced such a certificate. Hence show cause notice dt. 08.08.2008 was issued to the appellants inter alia demanding duty of Rs. 86,00,028/- with interest and also imposition of penalty under Rule 25 of Central Excise Rules, 2002. In the first stage of adjudication, Commissioner vide order dt.19.02.2009 confirmed the demand of duty and interest proposed in the said SCN and also imposed penalty of Rs. 1,00,000/-. In appeal filed by the appellant, the Tribunal vide a Final Order No.866-867/2012 dt. 23.7.2012 held as follows : "13. The present dispute is arising basically because of the fact that excise duty exemption has been provided with reference to exemption for customs duty and the conditions that are appearing in the customs notification has not been adapted to suit claiming excise du....
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....adaption of condition prescribed in a customs notification. This case involves a substantial right of the appellant to claim an exemption intended for import substitution at competitive prices we are of the view that the exemption cannot be denied for the reason that the certificate is produced later. We have not verified the certificates in detail. We are remitting the matter to the adjudicating authority to cause verification whether the certificate produced later meet the requirement of the notification. .... .... 19. So we uphold the demand in respect of supplies made to M/s.Oil India Ltd and Jindal Power Ltd. along with appropriate interest. The appellant is given an option to pay the penalty equal to 25% of the duty demand within 30 days of receipt of this order. If payment is not made accordingly the penalty equal to duty demand becomes payable. However, following the decision of Gujarat High Court in the case of CCE Vs Harish Silk Mills Pvt.Ltd. - 2010 (255) ELT 393 (Guj.), we give an option to pay 25% of the duty involved as penalty within 30 days of receipt of this order because such option was not extended by the adjudicating authority. If payment is not made within su....
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....tioned the refund claim. On appeal by the department, Commissioner (Appeals) vide order 26.4.2016 found that the appellants had not fulfilled the conditions laid down in Notification No.21/2002-Cus. and hence rendered themselves ineligible for grant of exemption under notification No.6/2006-CE. For these reasons, Commissioner held that refund sanctioned by the original authority is erroneous and should be recovered according to provisions of law and allowed the department's appeal. Hence Appeal No.E/41454/2016. 3. When the matter came up for hearing, on behalf of the appellants Ld. Advocate Shri Sujit Ghosh made oral and written submission which can be broadly summarized as under: i) In the impugned order No.6/2014 dt. 28.05.2014 (impugned order for Appeal E/41979/2014) as also order No.14/2014 dt. 30.06.2014 (impugned order for Appeal E/42143/2014) the Commissioner has gone beyond the parameters for de novo adjudication as directed by the CESTAT vide Final Order No.866-867/2012 dt. 23.07.2012. The Commissioner, while admitting that the directions of the CESTAT in their remand order were limited only to the verification of certificates, went on to hold that for satisfying the con....
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....ever have been denied. Copious documentary evidence in the form of affidavit, undertaking as also project authority certificates (which is a statutory document under the FTP to facilitate grant of deemed export benefits to the present supplies made to oil exploration projects) were submitted by the Appellant to demonstrate end use. Regrettably the Ld. Commissioner instead of appreciating the substance of the documentary evidence proving end use has rejected them on irrelevant grounds. iv) In any case, in light of the decision of the Hon'ble Bombay High Court in the case of CCE Nashik v. Kent Introls, 2016 (331) ELT 77 (Bom.) upholding the decision of CESTAT Mumbai in the case of Commissioner of Central Excise, Nashik v. Kent Introl Pvt. Ltd., 2014 (301) ELT 84 (Tri. Mumbai), the excise exemption is only predicated on the condition that the supplies are to be made under ICB and other conditions as mentioned, being applicable to importers and not domestic manufacturers were not required to be satisfied. The relevant portion has been reproduced hereunder: "With the assistance of learned counsel, we have perused the memo of appeal and all annexures thereto including the relevant noti....
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....Since the conditions have not been satisfied, by implication, the appellants cannot claim benefit under Central Excise Notification No.6/2006-CE. 4.2 It is important to ascertain whether other relevant conditions are also looked into apart from verification of the invoices under the goods were cleared. The adjudicating authority has found that the affidavit and undertaking have been produced by appellant at a much later date after clearances have taken place. 5. Heard both sides and have gone through facts. 6.1 In the previous round of litigation before this very Tribunal, vide Final Order No.866-867/2012 dt. 23.7.2012, while upholding the demands in respect of supplies made to Oil India and Jindal Power Ltd. along with appropriate interest, had passed the following orders in respect of clearances made to supplies made to Reliance Industries Ltd. The relevant portion of the order is as under: 16. In the facts of this case there is a justifiable reason to hold so because there can be some doubt about the time of production of certificate for excisable goods because the condition comes through adaption of condition prescribed in a customs notification. This case involves a substa....
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.... that status of appellant as sub-contractor has not been made clearly beyond doubt. We are unable to fathom how this conclusion has been arrived, since perusal of the Project Authority Certificate issued by Reliance Industries to the contractor, clearly depicts that M/s. Audco India Ltd. (as the appellant then was called) is a sub-contractor. 6.5 It is also noted that while not disputing the genuineness of the certificates submitted by the appellants, the lower authority has raised frivolous objections in respect of the Essentiality Certificate eg. that they are not addressed to the authorities concerned, that it is not titled as "Essentiality Certificate"; that relevant notification number and conditions thereof have not been cited; that period of validity of documents have not been specified and so on. The lower authority has even termed these discrepancies as "incurable defects". 6.6 While in para 5.3, the adjudicating authority concedes that the main question to be determined is eligibility of Essentiality Certificate that has been produced by appellant subsequent to their clearances, however, we find that the lower authority has chosen to examine whether condition No.32 of C....