TaxTMI 
TaxTMI 
2023 (6) TMI 236
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..... 3. While deciding the Department Appeals, the Hon'ble High Court has taken up the following substantial questions of law for consideration (i) Whether the Learned Tribunal without going into the merits of the case and without even seeing the documents was right in simply passing the order on the basis of the ratio laid down in the decision of the Tribunal in Jai Raj Ispat Limited Vs. Commissioner of Central Excise, Hyderabad-IV? (ii) Whether the Learned Tribunal failed to appreciate that the judgment relied upon while passing the said order is on the classification of 'Mis-rolls' which is not identical in the respondent case?" (iii) Why credit of CENVAT duty amounting to Rs. 90,05,802/- only Education Cess Amount to Rs.1,79,937/- only and Secondary & Higher Secondary Cess amounting to Rs.90,128/- only should not be disallowed and recovered from then under Rule 14 of the CENVAT Credit Rules 2004 read with erstwhile proviso to Section 11A and/or present Section 11A(5) of the Central Excise Act, 1944 ? (iv) Why interest at the appropriate rate should not be charged and paid by them under Rule 14 of the CENVAT Credit Rules, 2004 read with erstwhile Section 11AB and/or ....
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.... As directed by the Hon'ble High Court, before going into the merits of the case, the correct classification of the inputs purchased by the Appellant is to be determined. It is observed that the Appellants have purchased TMT Cuttings (more than one meter), MRM Roll Spoils, Cobble Cuttings, finished TMT Bar Rolls Spoils etc from M/s SAIL, IISCO, Burnpur and some other manufacturers on payment of Central Excise duty. The said manufacturers classified the above goods under tariff item No. 72044100 of the Central Excise Tariff Act. We observe that the classification of the goods done by the supplier's end cannot be changed by the receiver. In the case of Jai Raj Ispat Vs Commissioner of Central Excise, Hyderabad IV, the issue is related to classification of misrolls which are directly used by small re-rolling mills. The said 'misrolls' have been classified under the sub heading 7207.90 of CETA. We observe that the goods received by the Appellants does not have the description 'mis-rolls' in the invoices. Hence, the goods received are correctly classifiable under the sub heading 72044100, as classified by the suppliers. However, we observe that for the purpose of eligibility of CE....
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....10, proposing disallowance of CENVAT credit amounting to Rs 92.75.862 7. Both the Notices were adjudicated by Commissioner vide Orders-in- Original dated 02/03/2015 and 13/02/2017(impugned Orders), confirming the above said demands made in the said Notices along with interest and imposing penalty equal to the irregular credit availed under section 11 AC of the Central Excise Act, 1994. On appeal, Tribunal passed orders vide Final Order No. 75683/2018 dated 22.03.2018 and Final Order No.FO/72447/2019 dated 27.03.2019. Aggrieved against the above said Tribunal Orders, Department filed Appeals under Section 35G of the Central Excise Act, 1944 before the Hon'ble High Court at Calcutta . The Hon'ble High Court has disposed both these Appeals vide Order dated 08.08.2022 and remanded the matter to the Tribunal to consider the cases afresh. Accordingly, the Appellant is before us again for deciding the appeals afresh. 8. In their submissions the Appellant stated that, (i) They have purchased TMT Cuttings (more than one meter), MRM Roll Spoils, Cobble Cuttings, finished TMT Bar Rolls Spoils etc from M/s SAIL, IISCO, Burnpur on payment of Central Excise duty and in few cases from o....
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....isallowed and recovered from them under Rule 14 of the said Credit Rules read with erstwhile proviso to Section 11A ( present Section 11A(5) of the said Act. Issuing another Notice on the basis of allegation of suppression of fact with intent to evade payment of duty, on the same issue is barred by limitation. In support of this argument they relied on the decision of the Hon'ble Apex Court in the case of Nizam Sugar Factory Vs. collector of Central Excise A.P. [2006 (197) ELT 465 (S.C.)] holding the following :- Demand-Limitation Suppression of facts- All relevant facts in knowledge of authorities when first show cause notice issued While issuing second and third show cause notices, same similar facts could not be taken as suppression of facts on part of assessee as these facts already in knowledge of authorities- No suppression of facts on part of assessee appellant- Demands and penalty dropped Section 11A and 11AC of Central Excise Act, 1944: 10. They also relied on the decision of the Hon'ble High Court in the case of Gujarat Ambuja Exports Ltd., Vs. U.O.I. [2011(269) E.L.T. 159 (Guj.)] wherein it has been held that since all the facts were already known to the departm....
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....edit Rules 2004, any manufacturer can avail credit of duty paid on any goods (excepting light diesel oil, high speed diesel oil and motor spirit) treating the same as 'input' if those goods are used in or in relation to manufacture of their final products. Thus for the purpose of availment of credit on such items, it has to be established that the same were used in the manufacture of final products. Rule 3(1) of the Cenvat Credit Rules, 2004 clearly states that a manufacturer or producer of final products and a provider of output service shall be allowed to take credit of the duty paid on eligible inputs or services. It means that cenvat credit can be availed by manufacturer or producer of final products who uses the inputs in or in relation to manufacture of final products. 15. Rule 2(k)(i) of the Cenvat Credit Rules, 2004 which defines 'iputs' for manufacturer states that these should be 'used in the factory'. In the instant case, there is no evidence brought on record to show that the impugned goods purchased by the Appellant from IISCO and other manufacturers on payment of duty has not been used in the factory. Only an allegation has been made without any evidence that the scr....