TaxTMI 
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2025 (10) TMI 610
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....otices, covering the period from July 2004 to November 2008, to M/s MEPL; 8 Show Cause Notices, covering the period December 2003 to 9.5.2008 to M/s FFC and two show cause Notices, covering the period march 2004 to July 2005, to M/s ULPL, were issued, seeking to deny refund by way of self-credit and seeking to deny CENVAT credit availed along with penalties, alleging that they passed on inadmissible CENVAT credit to other units; that they will fully included the element of freight which is admissible deduction and that they have paid duty again on the goods returned to avail undue credit, on the grounds that Hon'ble Supreme Court, in the case of Metlex (I) Pvt Ltd 2004 (165) ELT 129 (SC) held that laminating/metallising of duty paid film did not amount to manufacture. 2. M/s MEPL sent a representation to the Central Board of Excise & Customs drawing their attention to the process of manufacture undertaken by them; show cause notices issued to them; the judgment of the Supreme Court in the case of Metlex (I) Pvt Ltd Vs. Commissioner of Central Excise and the fact that there are many other manufacturers of the same product across the country who are paying central excise duty and ....
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....s, covering the period from Nov. 2007 to June 2008, were issued to M/s MEPL on the same ground. 2.3. On an Appeal by M/s MEPL, Commissioner (Appeals), vide order dated 22-06-2018, set aside the order dated 07-11-2008, passed by Assistant Commissioner, rejecting the refund; Commissioner (Appeals) held that the case of M/s. Metlex India (P) Ltd is not applicable as the facts are was distinguishable and decision of the Tribunal in the case of Markwell Paper Plast Pvt Ltd 2012 (285) ELT 76 (Tri-Del) and Paper Products Ltd 2014 (304) ELT 145 (Tri-Mum) are applicable as the process of manufacture undertaken by MEPL is identical to the process involved in the above two cases. The said OIA had been accepted by Revenue. As the grievance of M/s MEPL came to be redressed in terms of order dated 22-06-2018, passed by Commissioner (Appeal), Hon'ble J&K High Court disposed of the Writ Petition; writ petitions filed by M/s First Flexipack Corporation (FFC) and M/s Ultra Laminates (P) Ltd (ULPL) were adjourned and listed for hearing on 23-05-2023. Commissioner, CGST Jammu, vide impugned order dated 25-06-2024, -Original confirmed the duty demand and denied CENVAT credit apart from demanding int....
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....sion of Hon'ble Apex Court in the case of Metlex (I) Pvt Ltd; * The appellants had irregularly taken inadmissible refund/self-credit during the period July, 2004 to June, 2008 in contravention of provisions of the notification No. 56/2002-CE dated 14-11-2002, as amended; the appellants were not entitled to take any CENVAT credit, in terms of Rule 3 of CENVAT Credit Rules as the final product is not excisable; CENVAT credit is available only when 'manufacture' takes place. 3.1. In respect of M/s MEPL, the adjudicating authority confirms the denial of self-credit of Rs. 6,45,840/- on the ground that the goods were received back by the MEPL which were cleared earlier and sold again after repacking the same; MEPL has not given any evidence to counter the allegation in show cause notice that the goods were subjected to repacking only; as self-credit was taken on the manufactured goods while clearing them for the first time, self-credit of same is not permissible as the goods which were retuned were simply packed and re-cleared. However, Commissioner holds that the allegation, that cost of transportation was included in the assessable value, during the period June 2008 to Nov....
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.... 145 (Tri-Mum), by distinguishing the judgement of Metlex (I) Pvt Ltd (supra), and holding that the process(s) undertaken by them amounts to manufacture; the said order has been accepted by Revenue. He submits that the Tribunal held, in the case of Markwell Paper Plast Pvt Ltd, that department having accepted the excise duty on the final product cannot deny CENVAT credit on the inputs used for the manufacture of the final product on such a technical plea and that the same is against the principles of equity and Justice. 6. Learned Counsel submits that the above decision of the Delhi Bench of the Tribunal involved four parties; Revenue preferred appeal against M/s. Markwell Paper Plast Pvt Ltd before Allahabad High Court and preferred appeal against M/s Sheetal Mercantile (P) Ltd and M/s. Chawla Packaging before Delhi High Court. Delhi High Court upheld the order of the Tribunal in the cases of M/s. Sheetal Mercantile (P) Ltd and in the case of Chawla Packaging before the Delhi High Court and in the case of Markwell Paper Plast Pvt Ltd before the Allahabad High Court. The Delhi High Court upheld the order of the Tribunal in the case of M/s. Sheetal Mercantile (P) Ltd 2015 (315) E....
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.... into packaging material. He submits that this distinguishing and vital aspect of the matter has been deliberately glossed over by the adjudicating authority. 8. Learned Counsel submits that CBEC, vide circular No. 93/75/86CX.3 dated 9-10-1986, clarified, on the basis of the judgement of the Supreme Court in the case of Empire Industries 1985 (20) ELT 179 (SC), that lacquered/ laminated or metallised plastic films manufactured from duty paid bare films would be liable to excise duty, notwithstanding the fact that such lacquered/ metallised or laminated films fall under the same sub-heading of CETA and that Chapter 39 being covered by Modvat Scheme, the benefit of Modvat in respect of duty paid on bare films would be available towards payment of duty on lacquered/metallised or laminated film. He submits that the Adjudicating Authority wrongly holds that the circular had become irrelevant subsequent to the judgement of the Supreme Court in the case of Metlex (India) Ltd; it is pertinent to note that CBEC has not withdrawn the said circular. He submits that department did not cancel the registration, even though there was a proposal for cancellation or revocation of the registratio....
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....AT credit; department cannot take a different stand in the same case subsequent to a conscious decision to accept a contrary view; such a policy would lead to confusion and places the assessee in a jeopardy. He relies on * Reliance Jio Infocomm Ltd (2023) 3 Centax 96 (Tri-Bom). * Birla Corporation Ltd MANU/SC/2519/2005. * Bigen Industries Ltd 2006 (197) ELT 305 (SC). * Jayaswalas Neco Ltd 2006 (195) ELT 142 (SC). * Surcoat Paints (P) Ltd 2008 (232) ELT 4 (SC). 10. Learned Counsel submits that the adjudicating authority relied upon 21 judgments which according to him followed Hon'ble Supreme Court's judgment in the case of Metlex (India) Pvt Ltd (Supra); the cases are in no way are applicable to the facts of the present case; adjudicating authority has not applied the ratio of the judgement of Metlex (India) Pvt Ltd itself correctly as explained above. He relies on Islamic Academy of Education and others MANU/SC/0580/2003 and Ispat Industries Ltd 2006 (202) ELT 561 (SC). 11. Learned Counsel submits that the adjudicating authority, in addition to the alleged inadmissible refund/self-credit taken, also confirmed the alleged wrongly av....
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.... * Creative Enterprises 2009 (235) ELT 785 (Guj) upheld by the Apex Court 2009 (243) ELT A120 (SC). * Ajinkya Enterprises 2013 (294) ELT 203 (Bom). * Gravita Metals 2020 (372) ELT 172 (Tri. - Chan) * Shivali Udyog (I) Ltd 2006 (204) ELT 94 (Tri.-Del) * Coca-Cola India Pvt Ltd 2007 (213) ELT 490 (SC) * Narayan Polyplast 2005 (179) ELT 20 (SC). 12. Learned Counsel submits that the adjudicating authority has rejected the self-credit of Rs. 6,45,840/- on the goods which were returned, re-manufactured and re-sold after payment of appropriate central excise duty; the appellants took credit in terms of Rule 16(1) of the Central Excise Rules, 2002, when the goods were brought to factory for being re-made, refined, re-conditioned or for any other reason; the appellants having remanufactured and cleared the goods again on payment of duty, are duly entitled for availing refund under the provisions of Notification No. 56/2002-CE dated 14-11-2002. The appellants rely on Order-in-Appeal dated 27-02-2013, passed on identical issue; the order attained finality as the department did not challenge the same before the Tribunal; further, the Tribunal in ....
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....processes undertaken by them do not amount to manufacture, by filing individual writ petitions before Hon'ble Jammu & Kashmir High Court; writ petition OWP No. 399/08 was filed by M/s FFC; On 01-05-2023, the Government counsel stated that the grievance of the petitioners stood redressed in terms of order dated 22-06-2018 passed by Commissioner (Appeals); in view of the submissions advanced by the Government counsel, in the case of M/s MEPL, which is equally applicable to the case of FFC as the process of manufacture of MEPL and FFC are identical. He submits that the High Court clearly gave two directions to the adjudicating authority; firstly, that he shall consider the reply to the show cause notice filed by M/s FFC & M/s ULPL and secondly, the matter shall be decided purely on merit without being influenced by circular of CBEC dated 07-11-2007; by giving direction to the adjudicating authority, not to be influenced by the CBEC circular, and by implication the Supreme Court judgment in Metlex case; adjudicating authority unfortunately did not follow both the directions of the High Court; he did not consider the replies to the show cause notice in proper perspective and relied upon....
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....he judgments and passed the impugned speaking orders after granting personal hearing and following the principles of natural justice. He submits that it is incorrect to say that the impugned orders did not consider the OIA dated 22-06-2018 in the case of M/s. Montage Enterprises Pvt Ltd. (MEPL), which has not been challenged by the department; the AA has found that the said OIA dated 22.06.2018 was passed without taking cognizance of the decision of Hon'ble Apex Court in the case of M/s. Metlex (I) Pvt Ltd; the OIA incorrectly relied on the cases of Markwell Paper Plast Pvt Ltd, Paper Products Ltd (supra); the decision in Markwell Paper Plast ignored the specific verdict regarding non-emergence of a new product after lamination of plastic films; further, the case of Laminated Packaging (P) Ltd relied upon in Markwell case was about lamination of kraft paper, thus, distinguishable facts and circumstances; in the case in hand, there is no printing of bare or metallized or laminated plastic film, making it distinguishable from the case of Markwell Paper; in Paper Products Ltd the issue involved was manufacture of packing materials. He submits that in the following cases tribunal follo....
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....of the judgment of SC in case of Metlex India Pvt Ltd; M/s MEPL were also specifically written a letter dated 11.09.2007 by the Director CBEC, asking them to stop the payment of Central excise duty on the said final products as it did not amount to manufacture under Section 2(f) of CE Act 1944; MEPL accordingly discontinued payment of CE duty for the period from 21.09.2007 to 21.11.2007; they suo moto started paying duty again from 22.11.2007 onwards. 20. Learned Special Counsel submits, on the allegation that though the department had proposed revocation of Central Excise registration but no proceedings were initiated to cancel the same; that the end product-flexible plastic laminates is a commercially new and different commodity which has a different name, character and use and on their reliance on J.G. Glass Industries 1998 (97) ELT 5 (SC) and other cases and Board Tariff Advice No. 40/82, dated 15.07.1982, that each process involved in production of the said final product in their factory and the resultant product would decide whether the same is yielding into a new article with distinctive name, character and use; it was held by Hon'ble Supreme Court that the processes of l....
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.... the plea based on change of tariff heading from the input stage to final stage was dealt by the adjudicating authority by relying on Markfed Vanaspati 2003 (153) ELT 491 (SC) and Steel Strips 2003 (154) ELT 336 (SC) wherein it was held that mere change in tariff heading does not amount to manufacture; Even in case of Metlex India, it was held that the tariff entry makes no distinction between ordinary film and film which is lacquered or metallized or laminated. He further relies on Tech Industries 2003 (155) ELT 209 (SC), Rishabh Velveleen 1999 (114) ELT 839 (T) and Fitrite Packers vs CCE 2006 (203) ELT 452 (T). He submits that various cases were relied upon by the appellants. He submits that the ratio of any decision must be understood in the background of the facts of the case; Commissioner has rightly rejected the reliance as the ratio was not applicable on facts. 23. Learned Special Counsel submits on the plea of Revenue neutrality that his ground was not raised before the Commissioner and hence, the same is not tenable before the Tribunal being an additional ground; moreover, Revenue neutrality is no ground for regularising the refund or set off illegally claimed in contra....
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....CCR 2002/2004; Adjudicating Authority was conscious and did not impose penalty under Rule 15, for the period July 2004 to December 2006; wrong quoting of the provisions, in the operative portion of the Order, is a mere typographical error, which could no way vitiate the proceedings. 26. Learned Special Counsel rebuts the submission of the appellants on the demand of interest and submits that as the demand is sustainable on merit, the interest liability in terms of section 11AA or 11AB of CE Act, 1944 get automatically attracted. On the issue of denial of CENVAT credit on the goods retuned for repair etc, which were claimed to have been re-made and cleared on payment of duty that Adjudicating Authority categorically recorded that the appellants had failed to give any evidence to counter the allegations; as the goods were subjected to re-packing only, the said request was rejected correctly. Regarding the submission of M/s FFC and M/s ULPL that the show Cause Notices, issued for the periods December 2003 to January 2005 and March 2004 to January 2005, respectively are time-barred, Learned Special Counsel submits that Adjudicating Authority has dealt with this contention in the res....
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.... Synthetics Ltd. v. Union of India, 1981 (8) ELT 328 (Del) * AGV Alfab Ltd Vs CCE Delhi-II 2011 (270) ELT 331 (Del) * Swaraj Mazda Ltd Vs CCE Chandigarh 1995 (77) ELT 505 (SC) * GSFC Ltd Vs CCE Vadodara 2014 (312) ELT 139 (TAhmd) 27.3. He submits that the cases cited by the appellants involve distinguishable facts and circumstances and hence, are not squarely applicable to the case on hand. He analyses each case and submits as follows. * in the case of Tikitar Industries 2012 (277) ELT 149 (SC) all the three OIA were passed on the same date 16.05.1997 and probably for this reason Apex court upheld holding the orders of the Tribunal on merit. * cases of Sambhaji Vs Gangabai & Mangalore Chemicals & Fertilizers Ltd relate to interpretation of statute and exemption; * the cases of Pearl Insulations Pvt Ltd and Dynaspede Integrated Systems Ltd deal with the benefit of exemption notification visà-vis conditions; * the case of Kamlakshi Finance Corporation Ltd - 1991 (55) ELT 433 (SC) about principles of judicial discipline, which has not been flouted in this case, as the Commissioner has followed the law laid down b....
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....held that the incidence of taxation, is entirely removed from whether, when and to what extent, Parliament chooses to recover the amount. In view of this, the case of Coca-Cola India Pvt Ltd, relied upon by the appellants gets distinguished by the ratio of Northern Operating Systems; the case of Narayan Polyplast 2005 (179) ELT 20 (SC) was held to be merely technical and without any revenue implication and thus, not applicable to the instant case. Counsel for the appellants Reply to departments submissions 30. Shri K. K. Anand, Learned Counsel for the appellants submitted a written reply, dated 27.08.2025, in reply to the arguments advanced by the Learned Special Counsel, for the Revenue, during course of the hearing on 23.07.2025 and written submissions. He submits that Special Counsel's averment that Commissioner (Appeal) passed the order, dated 22.06.2018, without taking cognizance of the decision of the Apex Court in the case of Metlex India Private Limited is incorrect; Special Counsel ignored the fact that the said decision was distinguished by tribunal in more than one case and 3 High Courts have upheld the same; he also ignored the fact that J&K High Court disposed of....
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....nt; the said OIA was accepted by the very same officer, the Adjudicating Authority himself, in the capacity of administrative commissioner. 31. Learned Counsel for the appellants submits that the Special Counsel contends wrongly that Hon'ble J&K High Court orders passed in the cases of MEPL, FFC and ULPL, stating that the same was not maintainable at SCN stage dated 01.05.2023, passed in the case of has no consequence at this stage and the verdict of the Supreme Court in Metlex holds good. Learned Counsel submits that the above submissions are wholly unsustainable as the orders passed by the Hon'ble J & K High Court were misread; as far as MEPL is concerned they had challenged the letter dated 27.11.2007 issued by the office of Superintendent of CE Range -II Jammu, directing MEPL not to pay Central Excise Duty; Hon'ble High Court vide interim order, dated 29.12.2007, had allowed MEPL to pay Central Excise Duty; M/s ULPL and M/s FFC challenged the CBEC Circular dated 07.11.2007, in which it was directed to decide all the pending cases in light of the judgment of the Hon'ble SC in the case of Metlex India Pvt Ltd; 31.1. He submits that during the pendency of the Writ Petitions,....
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.... some judgments, Special Counsel sought to distinguish the cases, in an inappropriate and in a legally not acceptable manner; for example, Special Counsel's distinguishing Bigen Industries Ltd. 2006 (197) ELT 308 (SC) is incorrect as October 2007 is common to both impugned order and the OIA. 33. Learned Counsel for the appellants submits that the Special Counsel has advanced a submission that there is no application of res-judicata or estoppel in taxation matters and relied upon a number of cases. In this regard he has placed reliance on the following judgments and according to him the department can depart from their earlier views in relation to Central Excise, Tariff entries and process of manufacture (i) If the facts are different or further and fresh facts are brought on record; or (ii) if the process of manufacture has changed (this was a central excise case); or (iii if the relevant entries in the Tariff have undergone a modification; or (iv) if, subsequent to the earlier decision, there has been a pronouncement of a High Court or the Supreme which necessitates reconsideration of the issue the earlier adjudication order was not reviewed by the department could not per se p....
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....icating Authority has followed the law laid down by the Supreme Court in the case of Metlex India as against the OIA passed by a equal rank officer, is wholly flawed; Adjudicating Authority was required to follow the law laid down by Tribunal and upheld by High Courts in the cases of M/s MPPPL and M/s PPL and more so as the Commissioner (Appeals), in his order dated 22.06.2018, followed the decision of the Tribunal and the department had accepted the order of the Commissioner (Appeals) 34. Learned Counsel submits that Learned Special Counsel did not rebut their submissions on admissibility of the CENVAT Credit; the Adjudicating Authority has denied the CENVAT Credit to all the three appellants on the ground that the processes undertaken by them did not amount to manufacture; in the cases of M/s MPPPL and M/s PPL, which they relied upon, Tribunal did not only hold that the processes undertaken by the parties therein amounted to manufacture but also allowed CENVAT Credit to the parties; these cases being on identical facts should be followed. 35. Heard both sides and perused the Records of the case. The issues before us to decide in the instant case are (i). Whether th....
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....aminates, are undertaken; the finished goods are used as a packaging material in the various industries such as pan masala, gutkha and fast moving consumer goods (FMCG) such as tea, coffee, namkeen, sweet, food products, rice, ghee, oil, milk, pulses etc; the appellants manufacture packaging material, especially on the orders from these industries; therefore, one layer is of printed lamination which contains brand name of a particular customer with the details of that particular product. 36.1. We find that the impugned orders reject the claim of the appellants on the allegation that the processes did not amount to manufacture as held by Hon'ble Supreme Court in the cases of Metlex (India) Private Ltd. The Assistant Commissioner, vide order in Original dated 7.11.2008, while rejecting the refund, claimed by, i.e. M/s Montage Enterprises(P) Ltd (one of the appellants herein), finds as follows. 3. I have carefully gone through the case records. I note that the verification/eligibility report was called for from jurisdictional Range Officer, who vide its report C. No.GL-6(58)J/RII/MEPL/Refd/06/1812 dated 26/10/2007 has confirmed that the scrutiny of the documents and the ma....
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....ellants are engaged in lamination and slitting/cutting only; both these processes do not amount to manufacture; as per M/s Metlex (India) (P) Ltd (Supra) and the clarification, dated 11.09.2007, issued by CBEC, lamination does not amount to manufacture and as per S.R. Foils Ltd 2001(138) ELT 719(Tri-Del) slitting/cutting jumbo rolls of aluminum foil into smaller rolls followed by rewinding on card board core and repacking does not amount to manufacture. We find that the impugned orders did not analyse the processes undertaken by the appellants therein in the case of M/s Meltex (India) (P) Ltd (Supra) and have not made any attempts to compare the same with the processes involved in the impugned cases. 36.3. We find that the Revenue mainly depends on the decision of Hon'ble Apex Court in the case of M/s Metlex (I) Pvt Ltd (Supra). We find that that Supreme Court observed, in that case, as follows. 15. In this case the Appellants purchase duty paid film. They merely laminate or metallize it. The product is a film to start with and remains a film after process of lamination or metallization. Thus, there is no new distinct product which has come into existence and it would h....
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....er chemical: This fact is not refuted by the department. Thus, it is clear that the appellant after purchasing the bare polyester/metalized film on payment of duty, first subjects that film to printing as per the requirement of the customer and thereafter those films are laminated either in to two layers or three layers. In our considered view the aforesaid process changes the character of the bare polyester film (inputs) in terms of its user as also the thickness and lamination. Therefore, this process falls within the definition of manufacture as defined under Section 24) of the Central Excise Act, 1944. In our aforesaid view we are supported by the judgment of the Supreme Court in the matter of Laminated Packaging: (P) Ltd. (supra) wherein the Supreme Court has held that polyethylene laminated kraft paper. produced out of lamination on duty paid kraft paper with polyethylene amounts to manufacture." .................................. (b) The above decision of CESTAT has been followed in 2014 (304) E.L.T. 145 (Tri. - Mumbai) CESTAT, West Zonal Bench, Mumbai in case of Paper Products Ltd Versus Commissioner of Central Excise, Mumbai-III Final Order No. A....
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....21. This fact is not refuted by the department. Thus, it is clear that the appellant after purchasing the bare polyester/metallised film on payment of duty, first subject that film to printing as per the requirement of the customer and thereafter those films are laminated either in two layers or three layers. In our considered view the aforesaid process changes the character of the bare polyester film (inputs) in terms of its user as also the thickness and lamination. Therefore, this process falls within the definition of manufacture as defined under Section 2(f) of the Central Excise Act, 1944. In our aforesaid view we are supported by the judgment of the Supreme Court in the matter of Laminated Packaging (P) Ltd. (supra) wherein the Supreme Court has held that polyethylene laminated kraft paper produced out of lamination on duty paid kraft paper with polyethylene amounts to manufacture. The relevant observations of Supreme Court are reproduced thus :- "4. After this impugned Act was passed, the same was challenged before the Bombay High Court by several writ petitions. Writ Petition No. 623 of 1979 along with others were disposed of by the Bombay High Court by judgment d....
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....ot think any substantial question of law arises for consideration. Perhaps the appellant should be satisfied with the reasoning. 36.7. We find that Hon'ble Allahabad High Court, while deciding the Revenue appeal in respect of Principal Bench's Order in Markwell Paper Plast P Ltd 2018 (9) G.S.T.L. 176 (All) held that the impugned order of the CESTAT has the stamp of approval of the Delhi High Court and there is no new ground of attack in this appeal. Once the very impugned order has been affirmed by another High Court, we do not find any reason to interfere with the same in this appeal. 37. We find from the above, that the Principal Bench, in the above cases, has distinguished the decision of the apex Court in the case of Metlex. The Bench finds that though the Supreme Court has observed that mere lamination or metallization of a film does not bring about a new distinct product, as such said process cannot be termed as manufacture, Hon'ble Supreme Court was referring to the plea of the department urging for remand of the case back for decision whether or not there was manufacture; in that context Hon'ble Apex Court held that the onus was on the department to prove by cogent ev....
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....bears the details of the product, the manufacturer etc and the thus the laminated sheet becomes roll of packaging material, which is further slit and cut to desired sizes. What emerges in the impugned cases is not just a laminated film but a packaging material there too of a particular customer/ manufacturer, on whose orders the same were manufactured. The end product does not remain a mere laminated film. A definite, distinct new product emerges as a result of the processes undertaken by the appellants. The new product has a distinct name, character and use in comparison with the raw-material which is laminated/metallised sheet. Moreover, the new product that emerges, that is the packaging material, is not only different from the raw material used, unlike in the case of Metlex, but also it ceases to be a laminate for general use and can only be used by the particular customer/manufacturer, who ordered for the same. That being the case, we are of the considered opinion that the facts of the impugned case being different, the ratio of judgment of Supreme Court in Metlex (I) Pvt Ltd is not applicable. Further, we find that Hon'ble Supreme Court of India, in the case of CCE, Bangalore....
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....ating India Pvt. Limited Vs. CCE Ahmedabad 2008 (228) ELT 122 (T-Ahm) (iv). Universal Enterprises 2014 (310) ELT 789 (T-Mum) (v). Anil Dang Vs. CCE Vapi 2007 (213) ELT 29 (T-LB) and (vi). S.R. Tissue Pvt Ltd. 2005 (186) ELT 385 (SC). Learned Counsel for the appellants submits that the these are not applicable as they are distinguishable on facts; judgments listed at serial no (ii),(iii), and (v) were rendered prior to the judgments rendered in the case of MPPPL and PPL; judgment mentioned at serial no 1(i) & (iv) the law laid down in the case of MPPPL was not brought to the notice of the Hon'ble Bench. We find that the department took quite opposite stand, in different cases, on the same issue. In some cases, they pleaded that the processes involved amounted to manufacture. In some cases, it submits that they did not amount to manufacture. Thus, we find that the decision of the Tribunal in M/s Markwell and M/s Paper products has attained finality being approved by the High Courts and not being appealed against by Revenue. Moreover, Learned Commissioner (Appeals), vide order dated 22-062018, in respect of one of the appellants themselves, decided the issue in favour of the appell....
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....e mark for India, the adjudicating authority as well as the Commissioner (Appeals) erred in denying the benefit of the notification under consideration. This apart, the earlier decision of the Tribunal in Bigen Industries (supra) between the parties on the same facts for the period from 12th August, 1989 to 25th August, 1989 having attained finality, as the Revenue did not file any further appeal, the Revenue is precluded from taking a different stand in the present appeals as per law laid down by this Court in a catena of cases. [See Collector of Central Excise, Pune v. Tata Engineering & Locomotives Co. Ltd. reported in (2003) 11 SCC 193; Berger Paints India Limited v. Commissioner of Income Tax, Calcutta reported in (2004) 12 SCC 42; Birla Corporation Limited v. Commissioner of Central Excise reported in (2005) 6 SCC 95 = 2005 (186) E.L.T. 266 (S.C.); and Jayaswals Neco Limited v. Commissioner of Central Excise, Nagpur reported in 2006 (195) E.L.T. 142 (S.C.)] 44. Though, it has been generally accepted that the principles of Res judicata or Estoppel are not applicable to taxation matters, the application should be with a proper reasoning and if the circumstances so demand. De....
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....taken by the appellants. Learned Special Counsel for the Revenue contends that the Commissioner (Appeals) order relates to October 2007 and the impugned order involves a totally different period and therefore this decision cannot be applied. We find that the submission is factually incorrect. We find that the period involved in the Commissioner (Appeals) order is subsumed in the impugned order. We also find that the argument of the learned Special Counsel that in the present case the Adjudicating Authority has followed the law laid down by the Supreme Court in the case of Metlex India as against the OIA passed by an equal rank officer, is not correct. We find that Adjudicating Authority was required to follow the law laid down by Tribunal, in the cases of M/s MPPPL and M/s PPL, which was upheld by three High Courts and more so as the Commissioner (Appeals), in his order dated 22.06.2018, followed the decision of the Tribunal and the department had accepted the order of the Commissioner (Appeals). 47. Further, the issue of classification or excisability of goods has to be uniform and cannot depend upon a particular period unless there is a change in law. Therefore, we find merit ....
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.... we are of the view that no writ lies against the show-cause notice, more particularly, when the petitioner has already responded to the show-cause notice by submitting his reply to it. The apprehension of the petitioner that the Assessing Authority may not adjudicate their reply to show cause notice on merits in view of the circular of C.B.E.C. dated 07.11.2007 can be taken care of by providing that the Assessing Authority which is seized of the matter shall consider the reply to the show-cause notice submitted by the petitioner along with all evidences, documentary or otherwise, purely on merits without being influenced by the circular of C.B.E.C, dated 07.11.2007. Ordered accordingly. 49. On going through the orders, it is clear the writ petition filed by M/s Montage Enterprises was disposed of on the basis of the assurance given by the Revenue Counsel that the grievance of the appellant is redressed by passing the order by Commissioner (Appeals) on 22-6-2018. It is clear that the Hon'ble Court was given to understand that the grievance of the appellant stands redressed and there is nothing against the appellant. On the contrary, the adjudicating authority has not followed th....
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....er than the amount of duty paid by utilization of CENVAT credit under the CENVAT Credit Rules, 2002, to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, by the 7th day of the next month in which the duty has been paid (b). The Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, after such verification, as may be deemed necessary, shall refund the amount of duty paid, other than the amount of duty paid by utilization of CENVAT credit under the CENVAT Credit Rules, 2002, during the month under consideration to the manufacturer by the 15th day of the next month. Provided that in cases, where the exemption contained 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 of Central Excise or the Deputy Commissioner of Cen....
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....h was followed by the Principal Bench of this Tribunal in the case of M/s Kalyan Toll Infrastructure vide final order, dated 29.04.2024, in ST/51625/2018 (Del.). 53. We find that J&K High Court, while interpreting the applicability of Section 11A vis-a-vis the very same Notification 56/2002, held in the case of Krishi Rasayan Exports Pvt Ltd, in CEA No. 06/2018, has taken a similar Stand. Hon'ble high Court held that The refund of excise duty claimed by an assessee and sanctioned by the competent Authority vide its order under Notification No. 56 of 2002-CE which order has attained finality as not having been challenged before any appellate or revisional authority under the Excise Act cannot be termed as 'erroneous refund' and recovered by resorting to Section 11A of the Act. Hon'ble J&K court followed the decision of Hon'ble High Court of Guwahati in the case of Jellalpore Tea Estate2011 (268) E.L.T. 14 (Gau.). Hon'ble High Court of Guwahati was dealing with a similar Notification No. 33/99-CE, issued for North-Eastern Areas of the Country, held that: 12. ................... A bare reading of Section 11A of the Act indicates that power can be exercised....
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....nt of time during the proceedings. Thus, the question raised at (iv) of Para 35, as above, is answered in the negative. 56. Now we proceed to discuss the questions at (v) and (vi) of Para 35, as above, as to whether the appellants are eligible to take CENVAT Credit and as to whether M/s MEPL were right in availing self-credit on goods, retuned by Customers, which were re-made and cleared on payment of duty again. We find that the learned Counsel for the appellants submits that the appellants were paying duty and were filing statutory monthly returns; no objection was ever taken by the department at any stage; therefore, once the department collected the central excise duty subsequently, they cannot turn around and contend or that the appellants were not entitled to avail/utilise CENVAT credit. He relies on various case laws. We also find that the learned counsel submits as regards the self-credit of Rs. 6,45,840, availed on the goods which were returned, re-manufactured and re-sold after payment of appropriate central excise duty, that Rule 16(1) of the Central Excise Rules, 2002provides for such return; the appellants having remanufactured and cleared the goods again on payment....