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Showing 301 to 320 of 380 Records
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2012 (1) TMI 125 - CESTAT AHMEDABAD
Valuation of goods - Whether the 50% of the amount of advertisement expenses reimbursed by the appellant to distributors/dealers is to be included in the transaction value of the final products or not - Held that:- dealers herein incurred the expenditure on the sales promotion to promote their interest also. Nothing is brought on record as to whether such direction was made on the part of the appellant and whether it was compulsory for the dealers to undertake sales promotions, measures or otherwise. In the absence of any such evidence, it has to be held that the said expenses were on the own free will of the distributors and dealers. If that be so, the expenses incurred by the dealers and repaid back to them by the assessee to the tune of 50% of the expenses, and inclusion thereof in the transaction value does not arise as such expenses are also in the interest of the distributor and the dealer of the final products manufactured and cleared by the assessee/appellant. - Following decision of Toyota Kirloskar Motors Ltd. - [2007 (6) TMI 77 - CESTAT, CHENNAI] and Reliance Industries Ltd. - [2006 (6) TMI 39 - Appellate Tribunal, Mumbai] - Decided in favour of assessee.
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2012 (1) TMI 124 - CESTAT NEW DELHI
Duty demand - forwarding charges - Held that:- Most of the period relevant for deciding the case falls after 1-3-2003, as per this rule cost of transportation from place of removal to place of delivery does not form part of value. If such charges are recovered on averaged basis cost as arrived at by accepted principles of accounting is allowed to be deducted. Even for previous periods C.B.E. & C. has clarified vide Circular dated 30-6-2002 that such charges on averaged basis could be excluded of ascertained properly - photocopies of bills of carriers, who had transported the goods from factory to the godown of the transporters agency to do the final leg of the transportation to the buyer’s premises. This is seen recorded in para 4(1) of the adjudication order dated 20-10-2005. This submission is rejected on the ground that invoice shows that the goods were delivered at the factory gate but still the appellants collected forwarding charges. There is no finding that the charges recovered as forwarding charges were for in excess of what was recovered. The decisions quoted by Revenue were given for the reason that the assessee did not produce evidence to show that “forwarding charges” were in fact transportation charges - Decided in favour of assessee.
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2012 (1) TMI 123 - CESTAT AHMEDABAD
Duty demand - Suppression of facts - Place of removal - Creation of dummy unit to evade duty - Under valuation of goods - Invocation of extended period of limitation - Penalty u/s 11AC - Burden of proof - SSI Exemption - Held that:- for the purpose of manufacture of Cell Pack on job work basis by the appellants M/s. Sysmex Transasia Bio-Medicals Ltd. which applied and obtained a loan licence No. DD162 issued by the Drugs Licensing Authority, Daman. The copies of the subject licence and manufacturing agreement dated 23-7-1998 between the appellants and M/s. Sysmex Transasia Bio-Medicals Ltd. and the certificate dated 7-6-2003 for renewal of loan licence were also produced. The appellants also submitted that M/s. Sysmex Transasia Bio-Medicals Ltd. were importing the basic raw material namely Cell Pack from M/s. Sysmex Corporation (Japan/Singapore) after clearing the same on payment of appropriate customs duty, the same was being supplied under cover of challans or such documents to the appellants for the manufacture of Cell Pack on job work basis. On completion of the manufacture of Cell Pack the appellants were returning the same to M/s. Sysmex Transasia Bio-Medicals Ltd. under the cover of central excise invoice.
The appellants were ultimately selling the goods from the godown at the prices ranging from Rs. 2100/- per unit to Rs. 3100/- per unit. They were filing regular monthly returns and maintaining records prescribed under the law. The facts being so and supported by several documents as a proof, it can be safely concluded that M/s. STBM cannot be a dummy unit - There is nothing on record to show that Cell Pack manufactured on job work out of the raw material supplied by M/s. Sysmex Transasia Bio-Medicals Ltd. were not dispatched to the premises Gala No. 5, Prithvi, Industrial Complex, Somnath, Nani, Daman. The copies of transport receipt showing excise invoices were produced by the appellants and they had paid transportation charges to the transporters.
For purpose of Section 4 concerned would be taken to be the related person if there is a reciprocity of interest between the assessee and such allegedly related person - The burden to prove that the goods in question were under-valued by the respondent lies on the Revenue which the Revenue has failed to discharge.
The clearance value exceeded because it was arrived at by adopting the value at which the appellants have sold their packs from depot instead of adopting the value on which they sold to M/s. STBM. The value of clearances of diagnostic reagents and demokits as well as the value of packing charges and forwarding charges have also been added to the value of clearance. However, the contention of the appellant is that they have not collected any duty from their customers in respect of clearances made by them by availing the benefit of SSI exemption - unless it is proved otherwise, the value of clearances as contended by the appellants has to be considered. Since there is no evidence to prove otherwise the contention of the Revenue remains unsubstantiated and the SSI exemption is rightly available to the appellants.
There was no suppression or misstatement of facts with an intention to evade payment of duty nor there was any evidence either documentary or otherwise comingforth to support the case of Revenue - Following decision of Union of India & Ors. v. Atic Industries Ltd. [1984 (6) TMI 51 - SUPREME COURT OF INDIA] - Decided in favour of assessee.
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2012 (1) TMI 122 - CESTAT MUMBAI
Waiver of pre-deposit of duty, interest and penalty - Bar of limitation - Held that:- Section 9 of the General Clauses Act, provides that for commencement and limitation of time, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word “from” and for the purpose of including the last in the series and days to use the “to”. The provisions of Section 35 of the Central Excise Act provides that appeal is to be filed within 60 days from the date of communication of the adjudication order. In view of the above provisions, we find that the limitation starts from 21-8-2010. Hence, the impugned order passed by the Commissioner (Appeals) dismissing the appeal as time-barred is not sustainable. Hence, set aside the impugned order and the matter is remanded to the Commissioner (Appeals) after waiving the pre-deposit of dues - Decided in favour of assessee.
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2012 (1) TMI 121 - CESTAT MUMBAI
Waiver of pre-deposit of duty - Classification of bulker under 87042319 or 87079000 - Denial of benefit of Notification No. 6/2006-C.E. - Held that:- as per the product literature produced by the applicant semi-trailer mounted bulk transporter where the bulkers is fixed on chassis without any prime mover. This bulker can be attached to prime mover which is called “horse” as the bulker is not attached with prime mover hence prima facie is classifiable under Heading 87079000 of the Tariff as other bodies for motor vehicles. Therefore, we find no merit in the contention of the applicant in respect of semi-trailer mounted bulk transporter. - In support of other bulkers when the prime mover is fixed with bulker we find the same are prima facie classifiable under chapter sub-heading 8704 of the Tariff as claims by applicants - during the period in dispute applicant cleared 4 numbers of Bulkers without prime mover and duty comes to Rs. 5 lakhs on these bulkers - Conditional stay granted.
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2012 (1) TMI 120 - CESTAT NEW DELHI
Duty demand - Held that:- The fixed assets of M/s. Jain Biscuits Industries Ltd. were purchased by the appellant on 19-4-2001. By this time, the old Central Excise Rules, 1944 had been rescinded and new Central Excise Rules, 2001 had been notified vide Notification No. 9/2001-C.E. (N.T.), dated 1-3-2001. We notice that the decision in the case of Macson Marbles Pvt. Ltd. (2003 (11) TMI 71 - SUPREME COURT OF INDIA) relied upon by Revenue, was given with reference to Rule 230(2) of Central Excise Rules, 1944. Further, it was a case where department proceeded to attach plant and machinery which belonged earlier to the defaulter. Nothing is coming out from case records that any attachment of plant, machinery or excisable goods has been done in this case.
The effect of the impugned order of the lower authority is to hold the appellants liable to pay revenue arrears of M/s. Jain Biscuits Industries Pvt. Ltd. without examining the issue whether the appellant is a successor in business of M/s. Jain Biscuits Industries Pvt. Ltd. and without attaching any property mentioned in the said provision. Further there is the issue that a legal provision brought into statute in 2004 cannot apply to a transaction done on 19-4-2001 - Decided in favour of assessee.
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2012 (1) TMI 119 - CESTAT KOLKATA
Denial of CENVAT Credit - Credit taken on inputs of different types of M.S. scraps and sponge iron, from April, 2001 to March, 2003 without bringing the inputs to the factory - Held that:- Undisputedly the case is built on the premise that the respondent could not discharge the onus as per sub-rule (4) of Rule 7 to show that the inputs were seized in the factory - Cenvat credit is available when the inputs are used for the manufacture of such products and that the manufacturer of final product shall maintain proper records. The burden of proof regarding the admissibility of Cenvat credit shall lie on the manufacturer taking such credit - It is against the settled principle that in the matter of adjudication, the power cannot be delegated to subordinate officers and the adjudicating authority should himself give his findings in the case to be adjudicated - Further deciding the case by relying upon on conclusion arrived at by Supdt., Anti-evasion amounts to non application of mind. In these circumstances the ld. Commissioner’s order is set aside and the case is remanded to the ld. Commissioner for deciding the matter afresh - Decided in favour of Revenue.
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2012 (1) TMI 118 - CESTAT BANGALORE
Waiver of pre deposit - Denial of CENVAT Credit - Renting of immovable property - Held that:- prima facie case found for the appellant against the denial of Cenvat credit on renting of immovable property service, in view of the Hon’ble High Court’s judgment in the case of CCE v. Stanzen Toyotetsu India (P) Ltd. - [2011 (4) TMI 201 - KARNATAKA HIGH COURT]. Prima facie, the findings recorded by the High Court in paragraph 10 of its judgment are in support of the appellant who claims that the registered premises were used in relation to activities relating to their business. Having obtained the above registration with the department, the appellant is entitled to receive taxable services and distribute credit of service tax paid thereon to their manufacturing units. Prima facie, as the registered premises were used in relation to activities relating to the business of manufacture of excisable goods, Cenvat credit of service tax paid on the taxable service of renting of such premises, is prima facie admissible - Stay granted.
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2012 (1) TMI 117 - CESTAT NEW DELHI
Duty demand - SSI exemption under Notification No. 8/2002-C.E., dated 1-3-2002 and 8/2003 as amended. Exemption Notification No. 8/2003-C.E. was amended vide Notification No. 30/2003-C.E., dated 1-4-2003 - Penalty under Section 11AC - Held that:- considering the sequence of events, the clarification dated 6-8-2003 issued by C.B.E. & C. and prompt payment of duty and interest on 21-8-2003, we are of the view that this is a case where there was no intention on the part of the Appellants to evade payment of duty and provisions of Section 11AC of the Central Excise Act would not apply in this case. This is a case which would get covered by provisions of Section 11A(2B) of the Central Excise Act, therefore we set aside the penalty imposed - Decided partly in favour of assessee.
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2012 (1) TMI 116 - CESTAT MUMBAI
Waiver of pre-deposit of duty - Denial of CENVAT Credit - Board’s Circular No. 345/2/2000-TRU, dated 29-8-2000 - Held that:- Board has clarified vide Circular dated 29-8-2000 that there is no bar for a manufacturer to remove the inputs and capital goods for export under bond. In view of the above Circular, we find that the applicant has a strong prima facie case in their favour, therefore the pre-deposit of duty and interest is waived and recovery of the same is stayed during the pendency of the appeal - Stay granted.
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2012 (1) TMI 115 - CESTAT MUMBAI
Waiver of pre-deposit of duty - Excisability of press mud – cenvat credit for exempted and non exempted products – Held that:- Following decision of CCE, Tirunelveli v. Dharani Sugars & Chemicals Ltd. reported in [2008 (8) TMI 618 - CESTAT, CHENNAI] and in the case of CCE, Visakhapatnam v. Sri Sarvarya Sugars Ltd. reported in [2009 (7) TMI 670 - CESTAT, BANGALORE] held that admixture of two waste materials is also a waste material. In view of the above decisions, we find that the applicant has a strong prima facie case in their favour, therefore the pre-deposit of duty and interest is waived and recovery of the same is stayed during the pendency of the appeal - Stay granted.
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2012 (1) TMI 114 - CESTAT AHMEDABAD
Availment of CENVAT Credit - Amalgamation of companies - Held that:- there is no dispute as regards amalgamation of M/s. Eusa Pigments Pvt. Limited, located at Plot No. 6105, 6107 and 6111, GIDC to M/s. Heubach Colours Pvt. Limited situated at Plot No. 6105, 6107 and 6111, GIDC, Ankleshwar. It seems that the appellant has transferred the credit to the same Company situated at the different plots. In the absence of any dispute as regards the amalgamation of the companies, provisions of Rule 10 of Cenvat Credit Rules, 2004 would clearly apply and the appellant’s factory at Heubach Colour Pvt. Limited at Plot No. 6105, 6107 and 6111, GIDC, Ankleshwar is eligible to avail Cenvat credit. In view of this, to meet the ends of justice, we direct the appellants to reverse the Cenvat credit taken at Heubach Colours Pvt. Limited located at Plot No. 9003-9010, Phase-IV, GIDC Ankleshwar and permit them to take the credit of the same amount in Heubach Colour Pvt. Limited located at Plot No. 6105, 6107 and 6111, GIDC, Ankleshwar. - Decided partly in favour of assessee.
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2012 (1) TMI 113 - CESTAT MUMBAI
Waiver of pre-deposit of duty - Classification of goods - spike-guard - Classification under Tariff Heading 8536 or 8537 - Held that:- item in question is a device which is used for multiple uses from a single plug-point for distribution of electricity - As this device spike-guard consists of plug and multiple electric points including switches therefore it cannot be classifiable under Tariff Heading 8536 of Central Excise Tariff - prima facie the spike-guard is classifiable under Tariff Heading 8537 of the Central Excise Tariff. In these circumstances, we find that the amount already deposited is sufficient for hearing of the appeal. Pre-deposit of the remaining duty, interest and penalty is waived and recovery thereof stayed during the pendency of the appeal - Stay granted.
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2012 (1) TMI 112 - CESTAT AHMEDABAD
Waiver of pre deposit - Defaulter company tranferred to assessee by M/s. Gujarat Industrial Investment Corporation Limited – Department directed petitioner to clear outstanding excise dues of defaulter company - Held that:- there is need to examine the terms of the contract, conditions of sale, decisions relied upon by the appellant in the light of statutory provisions in the Central Excise Act relating to recovery, which requires detailed hearing and since the issue involved is legal and prima-facie the issue seems to be covered by the decisions of the Hon’ble High Court of Punjab & Haryana in the case of T.C. Spinners Pvt. Limited [2008 (9) TMI 475 - PUNJAB AND HARYANA HIGH COURT] - I consider it appropriate that the requirement of pre-deposit is to be waived and stay has to be granted against recovery during the pendency of appeal in this case - Stay granted.
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2012 (1) TMI 111 - CESTAT NEW DELHI
Waiver of pre deposit - Denial of refund claim - Unjust enrichment - Held that:- duty for the entire month of April, 2010 had been paid in the beginning of month - 5th April, 2010 at the rate of duty in force at that time. The rate of duty was reduced only w.e.f. 13-4-2010. In view of this, we are of prima facie view that in respect of clearances w.e.f. 13th April, 2010 the appellant could not have recovered duty at the higher rate from their customers. We find that the Tribunal in its judgments in cases of Shri Rajendra Rolling Mills v. C.C.E., Ahmedabad reported in [2004 (2) TMI 138 - CESTAT, MUMBAI] and C.C.E., Mumbai-V v. Shree Ram Textile reported in [2005 (9) TMI 154 - CESTAT, MUMBAI] has held that the provision of Section 11B are not applicable for refund of excess duty paid under compounded levy scheme. We, therefore, of prima facie view that in this case the refund claim is not hit by principle of unjust enrichment. The requirement of pre-deposit of Cenvat credit demand and interest is, therefore, waived for hearing of the appeal and recovery thereof is stayed till the disposal of the appeal - Stay granted.
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2012 (1) TMI 110 - CESTAT BANGALORE
Denial of CENVAT credit - GTA Service - Held that:- assessee claimed support, inter alia, from the Tribunal’s Larger Bench decision in ABB Ltd. vs. Commissioner: [2009 (5) TMI 48 - CESTAT, BANGALORE] wherein CENVAT credit on GTA service used in the aforesaid manner by a manufacturer of final product was held to be admissible to them for a period prior to 1.4.2008, the date on which Rule 2(l) of the CENVAT Credit Rules was amended to substitute the word upto for the word from occurring immediately before the phrase place of removal - transportation of final products from factory to the premises of buyers was also covered by the expression from the place of removal used in the text of the definition of input service under Rule 2 (l) prior to its amendment. As the period of dispute in this case is prior to 1.4.2008, the appellant can legitimately claim the benefit of the High Court’s judgment - Decided in favour of assessee.
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2012 (1) TMI 109 - CESTAT AHMEDABAD
Denial of CENVAT Credit - Held that:- It can be seen from the above that Rule 15(2) of Cenvat Credit Rules, 2004 provides that where Cenvat Credit has been wrongly taken and there is suppression/fraud/collusion/mis-declaration with intention to evade duty, the manufacturer shall be liable to pay penalty under Section 11AC of the Act. Similarly, Rule 26 of Central Excise Rules, 2002 is applicable only when a person deals with the goods which he knows that are liable to confiscation or issues invoices without supplying the goods for facilitating the availment of Cenvat credit. None of the provision covers a situation like this wherein the manufacturer is a Private Limited company and the person on whom the penalty is imposed is the Director of the company. As submitted by the appellant, the Director is not covered by the relevant rules and therefore penalty imposed on the Director cannot be sustained and accordingly set aside - Decided in favour of assessee.
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2012 (1) TMI 108 - CESTAT AHMEDABAD
Duty demand - Assessee engaged in the manufacture of computers and was selling them in the name of M/s. Com Trade Agency and he was receiving the bills, receipts and quotations in the name of M/s. Com Trade Agency using the blank letter heads found in the office belonging to M/s. Com Trade Agency - Held that:- Commissioner (Appeals) has recorded a finding that the cheque book of M/s. Com Trade Agency was recovered from the premises of appellant when the same does not find mention in the panchnama at all. Therefore, there is no basis for this finding. Further, no investigation has been carried out with the bank to find out who had opened account in the name of M/s. Com Trade Agency and who operated this account, especially in view of the fact that both the statements of Shri Rajesh Manglani were retracted.
Signatures will obviously not tally with the actual signature of Shri Rajesh Manglani, which he has put in the statement etc. Findings of both the lower authorities are not clear as to which signature tallies with which and there is no clarity as to who issued the bills in the name of M/s. Com Trade Agency. In this case also, the efforts made by the officers in recording statement of the buyers would have been of great help if the buyers were to say that they had dealt with M/s. Siddhi Computers or Shri Rajesh Manglani. None of 6 buyers whose statements have been recorded have stated that they had dealt with Shri Rajesh Manglani or they had purchased the computers from M/s. Siddhi Computers. All of them have admitted that they purchased computers from M/s. Com Trade Agency. These statements, in reality, go totally against the case of the Department since the finding is that the M/s. Com Trade Agency was a dummy unit, whereas the buyers are saying that they have purchased the computers from M/s. Com Trade Agency. There is no evidence of any efforts having been made to trace Shri Harish Soni, either by the Department or by the party - Department has not been able to make out a case against the appellant as regards manufacture of computers and clearance of the same - Decided in favour of assessee.
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2012 (1) TMI 107 - CESTAT NEW DELHI
Waiver of pre deposit - Assesse manufacturer of wiring harness which are classifiable under heading 8544 30 30 - Held that:- Explanation to Section 2(d) is to the effect that excisable goods would include any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable. As such, it is clear that said explanation relates to marketability aspect of the product - in any case waste and scrap arising in the appellants factory would not prima facie get covered under 8548 90 00 but may prima facie get covered under Heading 7404 00 12. Inasmuch as the show cause notice proposes classification of the waste and scrap under Heading 8548 90 00 with which we prima facie do not agree, we find that the appellants have earned their stay - Stay granted.
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2012 (1) TMI 106 - CESTAT BANGALORE
Duty demand - Recovery of the credit in under Rule 14 of the CENVAT Credit Rules, 2004 read with the proviso to Section 11A(1) of the Central Excise Act - Bar of limitation - Held that:- Rule 3(5) provides that inputs or capital goods, on which CENVAT credit has been taken, can be removed as such from the factory of the manufacturer of the final products on payment of an amount equal to the credit availed thereon. Such removal is required to be made under an invoice referred to in Rule 9 of the Central Excise Rules, 2002. If these provisions are carefully perused, it would become clear that the removal of goods envisaged is a removal for good just like the removal of an excisable final product. A case of removal of input or capital goods to a job worker for further processing, testing, repair, re-conditioning or any other purpose is governed by Rule 4(5)(a) of the CENVAT Credit Rules, 2004.
If the job-worked goods are not received back in the factory of the manufacturer of final product within such period, the manufacturer of final product shall pay an amount equivalent to the CENVAT credit attributable to the input or capital goods, by debiting the amount in the CENVAT account or otherwise. Rule 4(5)(a) allows CENVAT credit on the input to be taken by the manufacturer of final product before removal of the input to the job worker. It was this right which was exercised by the present appellant and the same is not assailable - manufacturer of final product is entitled not only to avail credit on the input supplied to their job worker but also to take credit of the duty paid on the intermediate product by the job worker - Following decision of VENLON POLYESTER FILM LTD. Versus COMMR. OF C. EX., BANGALORE-III [2007 (9) TMI 354 - HIGH COURT OF KARNATAKA] - Decided in favour of assessee.
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