AI Drafter 
TaxTMI 
TaxTMI 
2022 (8) TMI 1249
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....ne hundred eleven only) [Rs. 1,89,79,356.00 as Сenvat duty and Rs. 1,91,755.00 as Education Cess) for the year 2002-03 (for March 2003) to 2006- 07 (upto January 2007) from M/s. Vansha Fragrances (Pvt.) Ltd. 13th Mile, Tamulikuchi, G.S. Road, Byrnihat, Meghalaya in terms of proviso to Section 11A of Central Excise Act, 1944. 4.2 I also order for appropriation of the amount of Rs.23,84,947.00 (Rupees twenty three lakhs eighty four thousand nine hundred forty seven only) [ Central Excise Duty Rs.21,96,608.00, Education Cess Rs.43,931.00] and Interest Rs.1,44,408.00 ] which is paid by the said TR. 6 Challan No. 01/06-07 dated 26.02.07 for the period from March '06 bk W section 11 of the Central Excise Act, 1944. 4.3 I also order for recovery of interest in terms of Section 11AB of the Act ibid from the said factory. 4.4 I also impose a penalty of Rs.2,14,11,650.00 (rupees two cores fourteen lakhs eleven thousands six hundred and fifty only) on M/s. Vansha Fragrances (Pvt.) Ltd. 13th Mile, Tamulikuchi, G.S. Road, Byrnihat, Meghalaya under Section 11AC of the Act ibid. 4.5 I also impose a penalty of Rs. 2,00,000/- (Rupees Two Lakhs) only eac....
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....t they were under the bonafide belief that the goods manufactured by them would not come under levy of Excise Duty. From record, it is seen that the appellant, who started manufacture of the products similar in 2003, did not approach the department with intimation of the same and did not take registration with the Jurisdictional Central Excise Authorities. Only in 2006, they appeared to have got in touch with the Central Excise Superintendent who issued clarification dated 28/02/2006 to the effect that they were not required to obtain Central Excise Registration. In these circumstances, we are of the view that the appellant cannot be absolved of the allegation of suppression. Consequently, we uphold the findings of the lower authority justifying the demand of Central Excise by invoking the extended period of time limit under Section 11A. 9. The other argument which is required to be considered is the submission that the appellant unit is situated in the North East Area where the benefit of exemption Notification No. 32/1999 dated 8/7/1999 was available to units set up in the area. However, it is not clear whether the appellant has claimed the benefit of such Notification b....
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....orrect to say that the entire quantum of the excise duty would be reimbursed to the manufacturer and the scheme was modified from time to time. According to the department, the excise duty component would be reimbursed upon deducting the cenvat credit already claimed. The department also says that at a subsequent stage, the extent of exemption granted was that the amount reimbursed would be only to the extent of the excise duty on the value added to the product in the course of the manufacture. 7. More importantly, the department points out that not every manufacturer in Meghalaya would be entitled to the exemption by way of reimbursement or otherwise. In such context, several notifications published by the Central Excise authorities have been relied upon to demonstrate that the initial scheme was restricted to certain areas of Assam and Tripura and, later, designated places in Meghalaya were also included. According to the department, the manufacturing unit of the appellant is not located within any area designated by the applicable notification for the appellant to claim exemption by way of reimbursement. 8. This aspect of the matter was not taken into considera....
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....rding of the applicable notification exempts a manufacturing unit as an SSI till such time it attains a turnover of Rs.1 crore. In the present case, the initial turnover in 2003-04 was extremely low and same picked up only in 2004- 05. In the event the appellant was entitled to exemption as claimed, it requires to be ascertained when the appellant's manufacturing unit exceeded the turnover of Rs.1 crore for the excise duty to be claimed only thereafter. 12. The three key aspects of the matter have not been addressed in the order of the Appellate Tribunal dated January 23, 2019 in the appeal arising out of the order-in-original of March 16, 2009. These issues cannot be conveniently addressed in the present proceedings which are conducted on summary basis on affidavit evidence. Further, as to whether a person is entitled to an exemption or not based on the geographical location of the manufacturing unit, is essentially question of fact that has to be ascertained. 13. Accordingly, the order impugned dated January 23, 2019 is set aside and the matter is remanded to the Appellate Tribunal with a request to render the opinion on the three key aspects indicated herein an....
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....rance of Rs. 1.00 Crore and thereafter, the appellant will automatically switch over to normal clearance at normal rate of duty. This exemption under Notification has not been discussed in the impugned Final Order by the Hon'ble Tribunal which requires to be discussed allowing exemption to the appellants. Further, the Appellant has not manufactured "Soya Bari" using "Gulab Brand" prior to 1st December,2006. Hence, the appellant unit is eligible for claiming SSI exemption for the financial Year 2002-03, 2003-04 to the extent of maximum benefit of exemption allowed under the Notification No. 8/2003 CE, dated 01.03.2003 upto maximum of progressive clearance of Rs.1.00 Crore at Nil rate of duty in the financial year 2003-04. This aspect has not been considered by the Tribunal in its Final Order dated 01.03.2019 which required to be considered by the Hon'ble Tribunal. • For that the demand raised by the Ld. Commissioner, Central Excise, Shillong, invoking extended period of limitation and raising demand for the period from March, 2003 to January, 2007 is not sustainable in law. The impugned Order in-Original is liable to be set aside on the Grounds of limitation. It....
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.... appellants. The Goods "Soya Bari' has been classified by the department under CETH - 2106.10.00 attracting 16% Ad valorem w.e.f 1st of March 2005. However, the said demand is subjected to limitation u/s. 11A of the Central Excise Act, 1944 as applicability of extended period of limitation is applicable in the present case. There will be no demand of duty for the period from March, 2005 to November 2006 as the period is beyond limitation of one year. • For that the Appellants discharged their Central Excise Duty liability w.e.f 1st March, 2006 from the date of enforcement of exemption Notification No. 3/2006-CE, dated 01.03.2006 at 8% Ad valorem till January, 2007. Vide Notification No. 3/2006-CE, dated 01.03.2006 (Ref. SI.No.28, CETH - 2106 - Rate of Duty -8 %, Condition - No.] The Appellants are entitled to refund of whole of the duty paid under North East Area based exemption Notification No. 32/1999-CE, dated 08.07.1999. • For that the Appellants unit is located in the exempted area covered under Notification No. 32/99-CE, dated 8th July, 1999. Hon'ble Supreme Court in the case of Union of India Vs. V.V.F Ltd. and Others reported in 2020 (372) ELT.....
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....ule of interpretation goods which cannot be classified in accordance with the above rules shall be classified under the heading appropriate to the goods to which they are more akin. As per Rule 6 "for legal purpose, the classification of goods in the sub-heading of a heading shall be determined according to the terms of those sub-headings and any related sub-heading Notes and, mutatis mutandis, to the above rules, on the understanding that only sub-headings at the same level are comparable. For the purposes of this rule, the relative Section and Chapter Notes also apply, unless the context otherwise requires." In the present circumstances the product 'Soya Bari' was not specifically classified in the First Schedule to Central Excise Tariff Act,1985 upto 28.02.2006. Hence, no duty is payable by the Appellants classifying under a wrong Chapter Sub- Heading determined by the department which is not in accordance with Sec.2 of the Central Excise Tariff Act 1985. • For that the department has committed an error in classifying the goods 'Soya Bari' on the basis of the classification mentioned in the Exemption Notification No.3/2006 CE. dated 01.03.2006 as sho....
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....ct of unsettling the classification already made, unless the amendment is given retrospective affect either expressly or by necessary implication. A statement in the explanatory notes (not in the Bill itself or the Notes on Clause thereto) that the amendment was a clarificatory nature, cannot have the effect of making it retrospective. Hence, subsequent amendment of Tariff entry not to effect earlier classification and the demand raised by the department is not sustainable and the impugned Order in Original is liable to be set aside. • For that the department has classified the product 'Soya Bari' under the Tariff Entry 2108.99 for the period from March 2003 to February 2006 without considering the nature of the product. It is settled by the Apex Court in the case of Collector Vs. Krishna Carbon Paper Co., 1988 (37) ELT. 480 (SC), that where no definition of a Tariff Entry is provided in the statute itself, for ascertaining a correct meaning thereof, reference to dictionary meaning is not always a safe guide but it is apt to be a somewhat delusive. The correct guide is the trade meaning. The trade meaning is one which is prevalent in that particular trade where....
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.... for the ends of justice. • For that the goods in question is not covered in the Schedule to the Central Excise Tariff Act, 1985, no duty is payable by the notice and they cannot be brought under the Central Excise net. Hence, from the above facts and circumstances of the case, there is no violation of the provisions of the Central Excise Rules, 2002 or Central Excise Rules, 1944. The contention of the ld. Commissioner, Central Excise, Shillong, is not sustainable in the eye of law and the impugned Order in Original is liable to be set aside. • For that the contention of the department as mentioned in paragraph 3 of the Show Cause Notice on carrying on production and clearance of "Soya Bari" under GULAB Brand by the Appellants from the commencement of Commercial production is a mere presumption having no concrete evidence and hence, not sustainable. In this context, it is submitted that the Appellants obtained the consent to use GULAB Brand from M/s. Vinita Soya Products, Guwahati on 1st December, 2006 and used to clear their product using GULAB Brand w.e.f 01.12.2006 and onwards as evident from letter of No objection Certificate dated 01.12.2006 which is ....
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....ertificate under C. No. I(30)5/Misc.Hansha/Byr-1/06 dated 13.09.2006 specifying that the product falling under Tariff Heading 23.04 and do not attract duty on this product and it is not required to obtain Central Excise Registration, Copy of the Certificate issued from the Range Office Byrnihat dated 13.09.2006 is enclosed and marked as Ext. - K for reference. Further, it is to mention here that the manufacturing premise is located under the Notified Area under N.E Exemption Notification No. 32/99 CE. dated 8th July, 1999 as amended by Notification No. 23/2000-CE, dated 29.03.2000 and is eligible for claiming exemption of the duty paid by way of refund for a period not exceeding 10 years and as such, there is no question of evasion of duty as alleged in the Show Cause Notice. The Appellants claimed their Refund under North East Area based exemption for the month of March, 2007 and April, 2007. Copy of the claim of Refund is Ext. - M for reference. The Ld. Commissioner, Central Excise, Shillong, has committed an error by upholding the allegations blindly and without applying her mind judiciously. Hence, the impugned Order- in-Original is liable to be set aside on this ground. ....
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....ems manufactured by them were not covered in the tariff, in view of the above. • The Adjudicating Authority has recorded detailed findings on the question of classification of the goods manufactured as well as the rate of duty chargeable under Section 4A of the Central Excise Act, during the period of dispute. • Appellant has claimed the benefit of the SSI only for the period 2002-2003 and 2003-2004. • The impugned order merits has no interference. 4.1 We have considered the impugned order along with submissions made in the appeal and during the course of arguments, in light of CESTAT Order No E D/75189-75191/2019 dated 23.01.2019 (Refer para 2.4 above) and the decisions of Hon'ble High Court of Meghalaya dated 08.02.2022 (refer para 2.5 and 2.6 above). 4.2 Hon'ble High Court has vide its order, remanded the matter to the tribunal for consideration of three aspects framed by them in their order. From the facts of the case and the order of the Hon'ble High Court it is quite evident that the issue in respect of classification of the goods namely 'Soya Bari' has attained finality with the order of CESTAT dated 23.09.2019 and the only issues....
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....hujia" etc. and that their product "Soya Bari" does not fit into this sub-heading since it is not fit for direct human consumption as an edible product such as "Bhujia and Namkeen" etc. as is understood in common parlance. They also have referred to the rules of interpretation in support of their contention that the classification of their products under 2108.99 made by the department is wrong and therefore they are not liable to pay any duty under that Sub-heading. I find that though the said assessee has referred to Chapter Note 10 which speaks only about the Sub-heading 2108.91 and 2108.99 but they have very consciously avoided Chapter Note 9 of the same Chapter 21 which reads as "Heading No. 21.08 inter alia includes (a) protein concentrates and textured protein substances ; (b).......(c).......upto (). Soya Bari is nothing but "protein concentrates" and/or "textured protein substance" as mentioned in the said Chapter Note 9 and therefore, is classifiable under 21.08 as "edible preparation, not elsewhere specified" and I find that it is appropriately classified under Sub heading No. 2108.99 as "other" attracting duty @ 16% Adv. I find that Chapter Note 9 as mentioned above unam....
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....nt premises of circumstances and law. The case laws cited refer to the rules of interpretations and/or the dictionary meaning or the common trade name etc. I find that these are all being followed in true terms of their letter and spirit of the case laws cited by the Department. Therefore, it is not necessary to separately deal with the case laws cited and they have as such no bearing on the instant case, in view of the specific provisions in the chapter note (No. 9) itself as discussed in the foregoing paragraphs. 3.2.3 The said factory has also contested that the Department has classified their product only after the issuance of Notification 3/2006 on 01.03.2006 and that prior to issuance of this notification, "Soya Bari" was not classifiable under any sub- heading or heading in the Central Excise Tariff Act, 1985. I find that this Exemption Notification mentions "Soya Bari" in bracket after the phrase "textured vegetable protein" which also leads to the only conclusion that this phrase "textured vegetable protein" as mentioned in Chapter Note 9 of Chapter 21 of the erstwhile schedule to the Central Excise Tariff Act in force during the period till 28.02.2005 as well as in sub....
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....ncluding Bills of Export wherein this brand name is mentioned. Shri Shiw Bhagwan Sharma, Managing Partner of both M/s Vansha Industries and M/s Vinita Soya Products in his statement dated 07.03.07 confirmed that the brand name "Gulab brand" belongs to M/s Vinita Soya Products. Shri Raju Pareek in his statement dated 26.02.2007 also confirmed that the said factory has been selling their products under the brand name Gulab brand. Shri Pawan Kumar Sharma in his statement dated 20.02.07 also has admitted that the said assessee has been using the brand name Gulab brand for marketing their products. He also confirmed that the brand name is registered in the name M/s Vinita Soya Products and that the said factory has been authorized to use the brand name free of cost. He also stated that though M/s Vansha Fragrances Pvt. Ltd. is having a separate legal entity, 2(two) Directors of the company are common to their partnership firm, M/s Vinita Soya Products. Moreover, they have one common trading firm in the name of Sharma and Sharma, located at Kayal Market, Fancy Bazar, Guwahati - 1 through which they sell the products of both the firms. 3.3.1 It is therefore apparent from the above stat....
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....e used the brand name "Gulab Brand" for marketing their products which belongs to M/s Vinita Soya Products. And therefore it is a point of law that they were not entitled for the SSI Exemption benefit. It is also on record that the said assessee did cross the clearance value of Rs. 4.79 crores during 2003-04 and by the conditions of threshold limit of clearance value, as laid down in the SSI Exemption, they were not entitled for the benefit from the next year i.e. 2004-05. However, I find that since the assessee was not entitled for the benefit of the said SSI Exemption for using the brand name belonging to another person which is one of the conditions of the SSI Exemption Scheme under the said Exemption Notifications, therefore, discussions on other conditions of the SSI Exemption Scheme like the threshold limit etc becomes redundant. 3.5 The assessee have contended that they have discharged the duty liability by depositing the excise duty of Rs.22,92,182.00 along with Education Cess of Rs.45,736.00 and Interest of Rs. 1,44,408.00 and that they have no other liability towards payment of Central Excise duty as no duty was payable during period till 28.02.06, as their products we....
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....ted 23.08.2006 from the said factory addressed to the Superintendent, Central Excise, Byrnihat, Meghalaya; the letter C No I (30) 5/ Misc/ Vansha/ Byr-!/06/776 dated 30.08.2006 from the Superintendent, Central Excise, Byrnihat Range -1, Meghalaya addressed to the said factory; the letter cum undertaking dated 04.09.2006 from the said factory to the Superintendent, Central Excise, Byrnihat Range -1, Meghalaya and the said Certificate C No I (30) 5/ Misc/ Vansha/ Byr-!/06/776 dated 13.09.2006, that the said factory has resorted to willful misstatement, suppression of facts and contravened the provisions of Central Excise Act, 1944 and the rules made thereunder with intent to evade payment of duty in as much as they suppressed the fact that they had given an undertaking before the Department vide their letter cum-under undertaking dated 04.09.2006 before obtaining the any further said certificate dated 13.09.2006. The undertaking given by the said factory reads as, "However we do hereby undertake that in case of any further clarification over the Excise Tariff you or we find it falling under Central Excise and attracting duty, we would immediately deposit the duty amount, as soon as i....
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....tion No 8/2002-CE and 8/2003-CE, at para 4, reproduced below, it is evident that the benefit of exemption shall not be admissible in respect of the goods manufactured and cleared under the brand name owned by some other person: "2. The exemption contained in this notification shall apply subject to the following conditions, namely: - ........... vii) the aggregate value of clearances of all excisable goods for home consumption by a manufacturer from one or more factories, or from a factory by one or more manufacturers, does not exceed rupees three hundred lakhs in the preceding financial year 4. The exemption contained in this notification shall not apply to specified goods bearing a brand name or trade name, whether registered or not, of another person, except in the following cases: ....... Explanation,- For the purposes of this notification,- (A) "brand name" or "trade name" means a brand name or a trade name, whether registered or not, that is to say, a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection....
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....f the said factory during the financial year 2003-04, 2004-05, 2005-06 exceeded Rs 3 crore, it appears that the said factory was not eligible for SSI exemption benefit under Notification No 8/2002-CE dated 01.03.2002 and Notification No 8/2003-CE dated 01.03.2003 and had contravened the provisions of Rules 4,5.6.8.9,11 and 12 of Central Excise Rules, 2002, in as much as they started production and cleared the goods in question, using the brand name of another person, without obtaining Central excise Registration and without payment of Central Excise Duty to the tune of Rs 2,11,75,964.00 and Education Cess Rs 2,35,686.00 total amount being Rs 2,14,11,650.00 (rupees two cores fourteen lakhs eleven thousands six hundred and fifty only) for the period March 03, 2003-04, 2004-05, 2005-06 and 2006-07 (upto January 2007) and also they have suppressed the material facts from the Central Excise Department." 4.7 From the facts as recorded in the Show Cause Notice and the adjudication order it is quite evident that the benefit of SSI exemption has been denied to the appellant not only for the reason that they were clearing the goods under the brand name "Gulab Brand' but also for the reaso....
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....d not in its wisdom, go as far as Section 290(2) of the English Act. Section 178A in terms applies to "gold, gold manufacture, diamonds and other precious stones, cigarettes and cosmetics'. With regard to these specified goods if seized under this Act in the reasonable belief that they are smuggled goods, the burden of proof that they are not such goods shall be on the person from whose possession, they are seized. But with regard to any other goods, the rule in sub- section (1) of Section 178A would not apply unless the Central Government had specifically applied the same by notification in the Official Gazette. It is common ground that at the material time, no such notification applying the Section to the categories of the goods in question had been issued. In respect of such goods the provisions of the Evidence Act and the Code of Criminal Procedure, do not, in terms, govern the onus of proof in proceeding under Section 167(8) of the Act. In conducting these penal proceedings, therefore, the Collector of Customs is to be guided by the basic canons of criminal jurisprudence and natural justice. 30. It cannot be disputed that in proceedings for imposing penalties under clause (....
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....th the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in `Law if Evidence' (12th Edn. Article 320, page 291), the "presumption of innocence is, no doubt, presumptio juris : but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property,' though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. 43. If we may so with great respect, it is proper to read into the above observations more than what the context and the peculiar facts of that case demanded. While it is true that in criminal....
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....f innocence in his favour. Amba Lal's case thus stands on its own facts." 4.8 In the case of Ramchandra Rexins Pvt Ltd [2013 (295) ELT 116 (T-Bang)] following has been held: 7.2 In a case of clandestine activity involving suppression of production and clandestine removal, it is not expected that such evasion has to be established by the Department in a mathematical precision. After all, a person indulging in clandestine activity takes sufficient precaution to hide/destroy the evidence. The evidence available shall be those left in spite of the best care taken by the persons involved in such clandestine activity. In such a situation, the entire facts and circumstances of the case have to be looked into and a decision has to be arrived at on the yardstick of 'preponderance of probability' and not on the yardstick of 'beyond reasonable doubt', as the decision is being rendered in quasi-judicial proceedings. 4.9 Thus we conclude that on the first issue i.e. in respect of denial of the benefit of SSI Exemption, for the reason that Appellant 1, was manufacturing and clearing the goods under the brand name 'Gulab Brand', the impugned order cannot be faulted with. 4.10 Since th....
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....dated 01.03.2006 was issued attracting Central Excise Duty @ 8% ad valorem. Classifying Soya bari under CETH 2106.10.00. 23.08.2006 The Appellant approached the superintendent of Central Excise, Byrnihat Range, seeking clarification on tariff Classification of Soya Chunk. 13.09.2006 The Superintendent of Central Excise, Byrnihat Range, clarified and classified Soya Bari under Tariff sub-heading 23.04 attracting Nil rate of Duty. 20.02.2007/ 23.02.2007 & 10.08.2007 The Anti-Evasion Unit of Central Excise, Guwahati, conducted investigation in premises of M/s. Vineeta Soya Products and Written Statements were recorded by the investigating officials. 07.04.2008 Notice to Show Cause was issued by the Commissioner of Central Excise, Shillong, demanding Central Excise Duty amounting to Rs. 2,14,11,650/- and proposed Penalty and interest. Vide C.No. V-CH- 21/1/ADJ/2008/7094-100 dated 07.04.2008. 02.06.2008 Appellant submitted Defense Reply defending their case and requested the id. Adjudicating Authority to drop the Demand proceedings against them. 4.....
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....ng doubt about the view to be taken. The Tribunal apparently has not considered these aspects correctly. Contrary to the factual position, the CEGAT has held that no plea was taken about there being no intention to evade payment of duty as the same was to be reimbursed by the buyer. In fact such a plea was clearly taken. The factual scenario clearly goes to show that there was scope for entertaining doubt, and taking a particular stand which rules out application of Section 11A of the Act. 12. As far as fraud and collusion are concerned, it is evident that the intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualified by the word 'wilful', preceding the words "mis-statement or suppression of facts' which means with intent to evade duty. The next set of words 'contravention of any of the provisions of this Act or Rules' are again qualified by the immediately following words 'with intent to evade payment of duty.' Therefore, there cannot be suppression or mis-statement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11A. Mis- statement ....
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....ent shall not affect the amount of excise duty already refunded, meaning thereby, the cases in which the excise duty is already refunded prior to the subsequent notifications/industrial policies impugned before the respective High Court, they are not to be reopened. However, it is further CLARIFIED that the pending refund applications shall be decided as per the subsequent notifications/industrial policies which were impugned before the respective High Courts and they shall be decided in accordance with the law and on merits and as per the subsequent notifications/industrial policies impugned before the respective High Courts. All these appeals stand disposed of accordingly. NO COSTS." 4.13 Now we take for consideration the above arguments. Commissioner has in the impugned order in para 3.7 considered the issue of limitation and have concluded that extended period of limitation can be invoked for making this demand. Appellants contention is that they were under the bonafide belief that their goods manufactured by them were classifiable under 23.04, and attracted Nil rate of duty till the issuance of Notification No 3/2006 classifying the said goods under 21061000 and attracting ....
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....e duty paid on the goods cleared by the units located in the specified areas of North Eastern States, subject to certain conditions and following the specified procedure. The relevant text of the said notification is reproduced below: "In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub- section (3) of section 3 of the Additional Duties of Excise (Textile and Textile Articles) Act, 1978 (40 of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) other than - (i) goods falling under Chapter 24 of the said First Schedule, manufactured by any unit; and (ii) goods manufactured by (a) Numaligarh Refineries Limited (NRL) or; (b) Bongaigaon Refinery and Petrochemicals Limited (BRPL) or; (c) Indian Oil Corporation, Guwahati or; (d) Assam Oil Division, Indian Oil Corporation, Digboi, and cleared f....
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.... in this notification is not applicable to some of the goods produced by a manufacturer, such refund shall not exceed the amount of duty paid less the amount of the CENVAT Credit availed of, in respect of the duty paid on the inputs used in or in relation to the manufacture of goods cleared under this notification. (c) If there is likely to be any delay in the verification, the Assistant Commissioner or Deputy Commissioner of Central Excise, as the case may be, shall refund the amount on provisional basis by the 15th of the next month to the month under consideration, and thereafter may adjust the amount of refund by such amount as may be necessary in the subsequent refunds admissible to the manufacturer. 2A. Notwithstanding anything contained in paragraph 2, - (a) the manufacturer at his own option, may take credit of the amount of duty paid during the month under consideration, other than by way of utilisation of CENVAT credit under the CENVAT Credit Rules, 2002, in his account current, maintained in terms of Part V of the Excise Manual of Supplementary Instruction issued by the Central Board of Excise and Customs. Such amount credited in the account current may be utili....
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.... manufacturer is less than the amount of refund determined, the manufacturer shall be eligible to take credit of the balance amount; (f) in case the manufacturer fails to comply with the provisions of clause (a) to (e), he shall forfeit the option, to take credit of the amount of duty during the month under consideration, other than by way of utilisation of CENVAT credit under the CENVAT Credit Rules, 2002, in his account current on his own, as provided for in clauses (a) and (c); (g) the amount of the credit availed irregularly or availed of in excess of the amount determined correctly refundable under clause (e) and not reversed by the manufacturer within the period specified in that clause, shall be recoverable as if it is a recovery of duty of excise erroneously refunded. In case such irregular or excess credit is utilised for payment of excise duty on clearances of excisable goods, the said goods should be considered to have been cleared without payment of duty to the extent of utilisation of such irregular or excess credit. Explanation. - For the purposes of this notification, duty paid, by utilisation of the amount credited in the account current, shall be tak....
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.... in the case of M/s. International Auto Products (P) Ltd. (supra) and endorse the proposition that once an assessee has chosen to pay duty, he has to take all the consequences of payment of duty." This decision was followed by the tribunal in the case of Autolite (India) Ltd [2002 (146) E.L.T. 345 (Tri. - Del.)], which has been upheld by the Hon'ble Apex Court as reported at [2003 (154) E.L.T. A169 (S.C.)]. Further in case of Kitply Industries Ltd. [2011 (267) ELT 289 (SC)], Hon'ble Supreme Court again took the note of this decision and observed as follows: 2. Our attention is drawn to the impugned judgment and order passed by CEGAT, West Regional Bench at Mumbai on 29-9- 2000. By the said judgment, the two-judges Bench of the Tribunal, after referring to the Larger Bench decision in the case of Jay Yushin Ltd. v. Commissioner of Central Excise, New Delhi, 2000 (119) E.L.T. 718 held that the finding of the Commissioner that Revenue neutrality is not established by the appellants is factually incorrect and, therefore, the order of the Commissioner is required to be set aside. By the said order, the Tribunal held that since it is a case resulting in Revenue neutral situation, t....
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....bject to excise duty or attracted nil rate of duty or were exempt from payment of duty. It is settled law that the bonafide belief is not the blind belief and need to be established before that plea can be taken. In case of Bharat Bijlee Ltd [2014 (314) E.L.T. 74 (Tri.- Mumbai)] tribunal has observed as follows: "5.15 The argument of the bona fide belief raised by the appellant does not seem to be convincing. If the appellant is claiming bona fide belief, it is for them to establish that they were entitled to hold such a belief based on interpretation of law as pronounced by any judicial fora. In the case before us we do not find any reason for entertaining such a belief nor any judicial pronouncement to hold such belief has been cited before us. Bona fide belief is not blind belief. In the case of Andhra Pradesh Electricity Board [1984 (16) E.L.T. 579 (Tri.)], this Tribunal held that bona fide belief does not mean blind belief or a self-opinionated belief. It would imply a belief which has been reached after a sincere attempt to understand the issue and examining it reasonably. Similarly, in the case of Inter Scape [2006 (198) E.L.T. 275 (Tri.)] this Tribunal held that belief c....
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....ed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. ........................................................................ "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.' Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.' Therefore, the argument of the appellant that in view of....