Live issues in Litigation

By Vijay Kumar

WE bring you some live issues which are at various stages of litigation. Perhaps the CBEC can try to bring some clarity on these issues and avoid wasteful litigation. Budget may be a good time for this.

1. Requirement of reversing Cenvat Credit availed on the inputs while allowing the remission of Central Excise Duty on the damaged goods.

2. Simultaneous availment of SSI exemption and credit on inputs used in manufacture of branded goods.

3. The issue involved is regarding interest on suo-moto credit taken by the party of excess duty paid by them. The correct option according to the Department was for them was to apply for refund of duty.

4. Whether the Commission paid to the Commission Agent by an EOU is includable in the assessable value of DTA sale by the EOU for the purpose of levy of duty on such supplies.

5. Availing Cenvat Credit on zerox copies of bill of entry and invoices.

6. Whether the credit of Service Tax taken at the time of purchase of inputs is required to be reversed with the amount of Excise duty at the time of clearance of inputs as such without being used in the manufacture of final product?

7. Admissibility of Cenvat Credit of additional customs duty discharged through DEPB credit.

8. The department enforced Bank Guarantee of the party for the recovery of duty liability; however the departmental order was struck down in CESTAT. The amount was refunded to the party. The issue pertains to the admissibility of claim of the party for interest on the amount so refunded by the department.

9. The Tribunal offered the assessee an option to deposit the amount of interest and penalty within 30 days of its order to avail the benefit of reduced penalty of 25%, even while the quantum of penalty was not redetermined by the tribunal.

10. Should the department bear the expenses of the accused to attend prosecution case?

11. Whether Service Tax on the overseas commission on account of service rendered by the foreign based commission agent is not leviable on the recipient of service w.e.f.1.1.05 in the light of Rule 2(1)(d)(iv) of the Service Tax Rules, 1944 which were framed by the Central Govt. in exercise of the power conferred u/s 94 (1)&(2) of the Finance Act,1994

12. Whether Cenvat credit is admissible on molasses contained in rectified spirit which is an exempted product.

13. Admissibility of Cenvat Credit on steel and cement used in the construction of storage tank in the factory premises. Department's contention was that storage tank wasn't movable and thus not excisable. Therefore, cement and steel used for civil construction of tank was not admissible.

14. Whether Education Cesses levied and collected under Section 91 of Finance Act, 2004 can be considered as a duty of excise for the purpose of grant of refund in cash or by way of self credit under Notification No. 56/2002-CE dated 14.11.2002 (as amended) as the said notification grants exemption only to the specified goods from (a) Basic Excise Duty, (b) Additional duties of Excise leviable under Sub-Section (3) of Section 3 of the Additional Duty of Excise (Goods of Special Importance) Act, 1957 (58) of 1957) and (c) The Additional Duties of Excise (Textile and Textile Articles) Act, 1978 leviable under Sub-Section (3) of Section 3 of the said Act, mentioned in the said notification.

15.

a. Whether the confessional statement recorded by the Authority of Directors, authorized signatory, admitting the guilt of clandestine removable of goods can be held not to be the basis for deciding aspect of clandestine removal of goods by the assessee.

b. Whether tribunal erred in not appreciating the aspect that statement recorded under Section 14 of the Central Excise Act, 1944 are admissible and binding to party.

These are some of the issues on which there are orders favourable to the assesses, but which the CBEC would like to take to the Supreme Court, but could not because of monetary limitation. We will bring you some more such issues soon.