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Requisite Checks for Appeals - RespondentInheritance Tax row - A golden opportunity to end 32-years long Policy Paralysis on DTCThe Heat is on: Preserving Earth's Climate in the Face of Global WarmingVAT - Timeline for frefund must be followed mandatorily while recovering dues under Delhi VAT Act: SCIndia, Australia to work closely for collaborative projectsCX - All the information was available to department in 2003 itself, therefore, SCN issued four years after gathering information is not sustainable and is highly barred by limitation: HCPowerful voices of amazing women leaders resonated at UN HqsCX - Clearance to sister concern for captive consumption - Department cannot compel assessee to perpetuate the illegality and in such circumstances the whole exercise was revenue neutral: HC75 International visitors from 23 countries arrive to watch world's largest elections unfoldCentre asks States to improve organ donation frequencyCus - Revenue involved in the appeal filed by Commissioner is far below the threshold monetary limit fixed by the CBEC, therefore, department cannot proceed with this appeal - Appeal stands disposed of: HCPM says NO to religion-based reservationCus - Export of non-basmati rice - Since the objective of Central Government in imposing ban with immediate effect was to avert a food crisis in the country, a strict compliance of exemption conditions would further the said intent of the Notification(s): HCAdani Port to develop port in PhilippinesCX - Appellant should not be left without an opportunity to put-forth his case on merits, particularly, when matter was decided during period of Covid-19 pandemic and also appellant contends that no opportunity of virtual hearing was granted by adjudicating authority: HCKiller floods - 228 killed in Kenya + 78 in BrazilI-T - Grant of registration u/s 12A can't be denied by invoking Sec 13(1)(b), as provisions of section 13 would be attracted only at time of assessment and not at time of grant of registration: ITATFlight cancellation case: Qantas accepts USD 66 mn penaltyI-T- Joint ownership in two residential properties at the time of sale of the original asset does not disentitle the assessee to claim of deduction under section 54F of the Act: ITATIsrael shuts down Al Jazeera; seizes broadcast equipmentI-T - If assessee was prevented from production of evidences because of its non-availability or delay in its retrieval coupled with ongoing several reassessment, assessee should be allowed to adduce additional evidence: ITATIndia to wait for Canadian Police inputs on arrest of men accused of killing Sikh separatist: JaishankarI-T- If assessee is otherwise found eligible, CIT(E) should grant provisional approval to assessee under Clause (iii) to First Proviso to section 80G(5): ITATLabour Party candidate Sadiq Khan wins record third term as London MayorI-T - Donation made to trust which is otherwise not approved during relevant period as per CBDT Circular, is not eligible for deduction u/s 35(1): ITATGovt scraps ban on export of onionI-T- Assessee could have filed application in Form No.10AB on or before 30.09.2022, which assessee failed to do : ITATUS Nurse convicted of killing 17 patients - 700 yrs of jail-term awardedI-T- AO erred in making addition for completed/non abated assessment as no incriminating material found during course of search :ITAT
 
CX - Respondents were extended benefit of CENVAT after denying benefit of Notfn. 67/95 - it cannot be said that Revenue have gone beyond allegations levelled in SCN & therefore, orders are required to be set aside: CESTAT

By TIOL News Service

MUMBAI, SEPT 11, 2014: THE respondents are having two units and are manufacturers of White Zinc Oxide. Till August 1998, Respondent No.2 used to do certain processes and clear the same to the Respondent No.1 on payment of Central Excise duty. Respondent No. 1 took the credit of the duty paid and carried out further processes and cleared the same on payment of duty.

Vide letter dated 20.7.1998, the CCE, Pune-II pointed out to the respondents that two units cannot be treated as separate identities for the purpose of Central Excise Law as well as the Cost Accountant's reports and, therefore, the transaction between two units are to be considered as two wings of the same factory. On this basis the Respondent No.2 filed two classification declarations and claimed the benefit of Notification No. 67/95-CE for clearances between two units and cleared the goods without payment of duty.

Reneging on its advise the department issued a SCN on 30.11.2000 & sought to deny the benefit of Notification No. 67/95-CE on the premise that the respondents are registered as two separate legal entities with Companies Act, Income Tax Department, Factory Act and Sales Tax. Duty was also demanded along with a proposal for imposition of penalty and interest.

The adjudicating authority held that the respondents are two separate units and are not entitled to avail the benefit of Notification No. 67/95-CE and confirmed the demand of duty along with interest but dropped the penalties. It was further held that the duty paid on the clearance would be entitled as CENVAT Credit to the other unit.

Unimpressed with this dole out, the Revenue challenged the order before the Commissioner (Appeals) on the ground that the adjudicating authority had no power to hold that on payment of duty by one unit the latter is entitled to take CENVAT Credit as it is not alleged in the show cause notice.

Since Commissioner (Appeals) concurred with the adjudication order, Revenue is before the CESTAT and submits that both the lower authorities have gone beyond the allegations leveled in the SCN and, therefore, the orders are required to be set aside . (Usually it is the other way around! )

The Bench observed -

++ On perusal of the record, we find that in defence of the allegation made in the show cause, the respondents have prayed that if it is held that the respondents are two separate units, in that case, if duty is paid by one unit the same is entitled as CENVAT Credit to the another unit.

++ As the respondent had made this defence in the replies to the show cause notice, the adjudicating authority agreed with this contention of the respondents and passed the order holding that they are entitled to take CENVAT Credit of duty paid by the another unit. The same view has been affirmed by the Ld. Commissioner (Appeals).

Affirming the view taken by the lower authorities & holding that there is no infirmity in the o-in-a, the Bench upheld the order and dismissed the Revenue appeals.

In passing : Was this a frivolous appeal? 

(See 2014-TIOL-1725-CESTAT-MUM)


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