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Central Excise - Case Laws
Showing 181 to 200 of 260 Records
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2012 (12) TMI 347
Cenvat credit of excise duty paid on inputs - manufacture of sugar during crushing of sugarcane by-product/waste - bagasse emerges – alleged that since the appellant have not maintained separate account and inventory of the inputs used in or in relation to manufacture of dutiable final products - sugar and molasses and exempted final product - bagasse, in accordance with the provisions of Rule 6 (3) of Cenvat Credit Rules, 2004, they would be required to pay an amount equal to 8% of the sale value of bagasse – Held that:- Bagasse emerges in course of crushing of the sugarcane - crushing of sugarcane is necessary to extract cane sugar juice which in turn is processed for production of sugar and molasses. Bagasse is the waste product left after the crushing of sugarcane - no need to maintained separate accounts for the inputs for production of sugar and molasses (excisable item) and bagasse - Since Bagasse emerges at sugarcane crushing stage, there is no possibility of any input-chemicals etc. having been used at that stage – in favor of assessee
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2012 (12) TMI 346
Benefit of exemption under Notification No. 56/2002-C.E - AI claimed exemption under Notification No. 56/2002-C.E., dated 14-11-2002 as a unit situated in Jammu - As per this notification whatever duty is paid by AI through PLA is refunded to AI. Further the buyer of the product is able to take Cenvat credit of the duty paid by AI – alleged that such refunds were taken in respect of goods not manufactured in Jammu - Revenue is proposing to recover the refund amount both at the end of AI and at the end of the buyers shown in the invoices issued by AI – Held that:- Revenue’s argument that no processing was done in Jammu is not consistent with the observations recorded during the investigative visits. Arriving at the quantum of excise duty evasion done by the applicants requires much more” detailed hearing and examination of case records - demands confirmed at the supplier’s end and buyer’s end amounts to recovering the same amount twice once at the end of AI and again at the end of the buyers. A strict interpretation of the notification authorising refund and the Cenvat Credit Rules authorising taking of credit may result in such an outcome if the fraud made out by Revenue is held to be proved - waiver of pre-deposit allowed
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2012 (12) TMI 345
Application for rectification of mistakes – cenvat credit - plea of the appellant is that Whytheat - C Special, Fire Crete, Air Compressor, Spare Parts for Compressor, Air Cylinder, Spare Impeller, Grate Bar, Grate Plate, Fork Lifter Truck and Lifting Chain were the items covered by the definition of the term - capital goods – Held that:- Modvat credit in respect of the above-mentioned items was disallowed on the ground that Clauses (d) & (e) to Rule 57Q were inserted for the first time by Notification No. 11/1995-C.E. (N.T.), dated 16-3-1995 and being so, the same cannot be applied to this case - appeal is restored to its original number. The ROM is allowed.
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2012 (12) TMI 344
Assessable value – As per franchise agreement with M/s. Coca Cola Company, the appellants were required to buy NABB from M/s. Britco Food Company Ltd. - appellants were incurring expenditure on advertising, marketing and sale promotion of beverages - appellants received money from Britco Food Company Ltd. to compensate for expenses incurred on advertising, marketing and sale promotion and also as price support incentive –– Held that:- Prices stood reduced on account of concession given by M/s. Britco, supplier of concentrates (raw material), to the assessee - There is no evidence of flow back of any additional consideration from the buyers of aerated water (beverage) to the assessee - price uniformity was maintained. No favour for extra commercial reasons were shown to any of the buyers of aerated water. There is no evidence of any concession to any of the buyers. There is no evidence of existence of any favoured buyers - Rule 5 is not applicable - duty demand with interest and penalty set aside
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2012 (12) TMI 343
Whether machining and drilling of holes activity amounts to manufacture - rough forgings - Held that:- Goods received by TWGI are rough forgings classifiable under Heading 7326 - products which emerges after being subjected to machining and drilling of holes by TWGI are clearly identifiable as a part of excavators and can be directly used, as such, and the same are classifiable as part of the earth moving machinery under sub-heading 84314990 - processes undertaken by TWGI would amount to manufacture and, hence, attract Central Excise duty - TWGI never informed the department about their activity - penal provision of Rule 26 of Central Excise Rules, 2002 would be attracted
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2012 (12) TMI 342
Waiver of pre-deposit – classification - Jaljeera and Hazmi – Held that:- Any mixture of grinded spices packed in a packet can be termed as “packed masala” - Jaljeera and Hazmi are packed masala classifiable under Chapter 9 of Central Excise Tariff Act, 1985 particularly Entry No. 0903.10 - waiver of the condition of pre-deposit allowed
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2012 (12) TMI 341
Activity amounts to Manufacture or not - appellants are engaged in the manufacture of HT/LT Coils for transformers and also are engaged in repairing of transformers received from the electricity boards - transformer oil is subjected to the process of filtration under vacuum and heating and, thereafter, the same is used for filing in the cavities in the transformers as liquid insulator – Held that:- Appellant had subjected the transformer oil purchased by them to the process of filtration and heating to make it suitable for their own industrial use i.e. for repair of the transformers. The process undertaken by the appellant thus, does not amount to manufacture – in favor of assessee
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2012 (12) TMI 307
Confiscation of seized goods - confiscation of tractor - imposition of penalties - Appellant contended that shortages were on account of clearance of products without the cover of any documents - admitted clearance of 25000 Kgs. of final products without the cover of any document, interception of the same, statement of driver and Shri Rajendra Kumar Sharma, clandestine clearance - held that:- confirmation of demand of duty of Rs.4,00,087/- along with imposition of penalty of identical amount under Section 11 AC is required to be upheld - Lower authorities while imposing penalty to the extent of 100% of duty, have not extended any option to the appellant to pay the entire dues along with 25% of penalty within a period of 30 days from the date of passing of order, in which case penalty shall stand reduced to 25% in terms of proviso to Section 11AC. further in terms of Gujarat High Court decision in the case of CCE, Surat I vs. Harish Silk Mills [2010 (2) TMI 494 - GUJARAT HIGH COURT], such option can be given at the appellate stage - option to the appellant is extended and if they deposit entire dues along with 25% of penalty, within a period of 30 days from the receipt of present order, the penalty shall stand reduced to 25% - such option is now extended to appellant.
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2012 (12) TMI 306
Claim of Refund of Cenvat Credit - Surrender of Central Excise Registration - closure of factory - unutilised credit - held that:- Refund results in outflow from treasury, which needs sanction of law and an order of refund for such purpose is sine qua non - absence of express grant in statute does not imply ipso facto entitlement to refund - absence of express grant is an implied bar for refund. When right to refund does not accrue under law, claim thereof is inconceivable - answered negatively and in favour of Revenue since refund of unutilized credit is only permissible in case of export of goods and for no other reason whatsoever that may be
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2012 (12) TMI 305
Demand of duty – alleged that the transportation cost/freight charges from the place of removal to the place of delivery ought to have been included in the value of the goods for assessing the excise duty payable – Held that;- There is nothing on record to suggest that the respondent-assessee and the customer to whom the goods were sold were related parties - Rule 5 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 is not attracted - excess amount of freight collected by the assessee need not form part of assessable value - if the place of removal of goods is factory of the assessee then transport charges will not be included in the assessable value – appeal dismissed
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2012 (12) TMI 304
Demand of excise duty - manufacture - assembly of two or more products - manufacture of Razors and razor blades by way of assembling the components supplied by M/s. Gillette India Ltd. (GIL) – Gillette Shave Gel Tubes (GSG) obtained from GIL under a promotional scheme and marketed those combination packs discounted on MRP of Rs. 85 - combination packs consisting of five twin blade cartridge having MRP of Rs. 66/- and 60 gms. tube Gillette shaving gel tube with MRP of Rs. 49 - appellant paid duty on the basis of MRP of five twin blade cartridge mainly for the reason that Gillette shaving gel tube procured by the appellant firm from GIL were duty paid.
AR for respondent submits that admittedly this is a case of repacking twin blade cartridge as also the shaving gel tube in a combination pack and altering the retail sale price (MRP). As such the combination packs falls within the deemed definition of manufacture under Section 2(f)(iii) - held that:- Above argument is of no avail to the respondent for the reason that Section 2(f)(iii) was introduced in the Central Excise Act, 1944 by way of amendment w.e.f. 1-3-2003, and the instant case relates to the period earlier to the amendment i.e. October and November 2003 as such deeming definition provided under Section 2(f)(iii) is not applicable to the present case.
The activity of the appellant in packing the twin blade cartridge as also Gillette shaving gel tube in a combination pack and selling it at a discounted MRP of Rs. 85/- does not amount to manufacture. As no mere product has come into being the combination product does not attract incidence of excise duty. Admittedly, the appellant has paid duty on Gillette shaving gel tube while procuring them from GIL and he has paid excise duty on MRP of the twin blade cartridges while clearing the combination pack. - Demand and penalty set aside - decided in favor of assessee.
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2012 (12) TMI 303
Condonation of delay – delay of 261 days – Held that:- Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few - no proper explanation offered by the Department for the delay except mentioning of various dates Department failed to give any acceptable and cogent reasons sufficient to condone such a huge delay - application for condonation of delay is dismissed
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2012 (12) TMI 302
Clandestine removal – loss of molasses in the storage tank - Revenue says that loss cannot abnormally occurred for one period while loss claimed for a larger period appears to be within the range of 2% - submission of Revenue is that the losses occurring in different circumstances envisaged by Section 35B calls for consideration by the jurisdiction of Revisional authority – Held that:- Tribunal is conferred with power of Civil Court only to a limited extent as is enacted in Section 129C(7) and (8) of the Customs Act, 1962 - Tribunal has no power to act as Civil Court beyond its jurisdiction - if the appellant so chooses to seek the revisional jurisdiction, it may do so and if there is a delay in seeking remedy before that jurisdiction, it may file application for condonation of delay, which may be considered by that authority in accordance with law - stay application dismissed.
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2012 (12) TMI 300
Waiver of pre-deposit - Cenvat credit - appellants are manufacturers of GI pipes. They had obtained steel sheets and constructed one tank in which zinc can be melted and used in the process of galvanizing – Held that:- Inputs are covered by provision of Rule 2(k) of Cenvat Credit Rules, 2004 – pre-deposit waived
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2012 (12) TMI 299
Cenvat credit – alleged that appellant wrongly availed cenvat credit – Held that:- Appellant is not disputing the improper/ineligible Cenvat credit availed - reversed the amount of Cenvat credit - appellant is allowed to pay 25% of the amount of the ineligible Cenvat credit which has been reversed by him as penalty under Section 11AC subject to the condition that he pays the amount of interest on irregularly availed Cenvat credit and also the 25% of the amount as penalty
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2012 (12) TMI 298
Classification – waste - peelings of potatoes – manufacturing of potato chips - According to assessee, the waste which has been generated in the manufacturing process falls within the Entry No. 23080000 of Chapter 23 relating to vegetable materials and vegetable waste, vegetable residues and by-products and this item is not subject to excise duty.
The stand of the department is that the aforesaid peelings of potatoes and waste in the shape of paste is nothing but starch, therefore, it falls within the entry under Chapter Heading No. 11081300, which is subject to excise duty at the rate of 40% of the sale price
These appeals raise serious issue of classification i.e. whether the goods in question is starch classifiable under Tariff Entry 1108 13 00 or vegetable waste classifiable under Tariff Entry 2308 00 00. - good prima facie case - pre-deposit waived
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2012 (12) TMI 297
Demand – manufacture of cotton and polyester spun yarn - no Cenvat credit of excise duty paid on polyester fibres has been taken - Cenvat credit has admittedly been taken on packing materials for packing of yarn for export, the services of foreign commission agents and GTA services from the factory to the port and according to the appellant, this Cenvat credit has been taken only in respect of the goods which after payment of duty has been exported out of India – Held that:- According to the department, the appellant had also availed Cenvat credit in respect of the dyes and chemicals, which have been used in the manufacture of dutiable final products as well as waste - appellant on the other hand, deny having used any such duty paid dies or chemicals and having availed Cenvat credit - matter remanded for de novo adjudication
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2012 (12) TMI 267
Availment of Cenvat credit - Membership of club tourism service and mandap keeper services - Input service - nexus with Manufacture - held that:- payment for club membership is allowable as business expenditure inasmuch as club membership is used for convening business meetings and to facilitate vital decisions making, exclusively cordial ambience is essential for creating calm, composed, peaceful and tranquil mind set of the clients and the customers - relatable activities of the business. Hence, the same are covered under the definition of input services - Service Tax paid on the same is available as Cenvat Credit to the appellant.
Mandap Keeper services - held that:- Employees of appellants company were on strike during the relevant period and mandap keeper services were availed for safeguarding the materials lying in the open yard and to provide accommodation under the tent for the employees during the strike period - mandap keeper services were availed by the appellant in connection with their business activity though it was one time expenditure incurred on housing the striking employees and safeguarding the material lying in the open by the workers during strike - fact that it was one time expenditure will not change the fact that said services were availed in connection with the business activities - same are available as credit to the appellant - impugned order is set aside appeal is allowed.
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2012 (12) TMI 266
Hot Melt Unit - Capital Goods - Rule 57-Q - held that:- Marketability is an essential criterion for determining the liability of goods to excise duty and the process of rendering goods to market is a manufacture - end products manufactured by the respondents cannot be marketed without proper packing and therefore the modvat credit on the impugned machine used for packing of such goods is admissible as capital goods under Rule 57-Q." - The denial of the credit for this reason therefore cannot be sustained".
In the present case "Hot Melt Unit" was admittedly used by the assessee while packing their finished goods - "welding electrodes". Since packing is held to be one of the essential components of the manufacturing process of the finished goods and being in the nature of incidental or/and ancillary to the main manufacturing activity, the assessee in this case was rightly held entitled to claim modvat credit on the item - "Hot Melt Unit" treating the same as capital goods under the Rule 57-Q ibid for claiming benefit - issue sought to be urged by the applicant (revenue) no longer remains resintegra - no referable question of law arises in the case - reference application fails and is accordingly dismissed.
Decision in EASTEND PAPER INDUSTRIES Versus COLLECTOR OF C. EX., CALCUTTA [1989 (8) TMI 81 - SUPREME COURT OF INDIA] and Dharampal Satyapal v. Commissioner of Central Excise, Delhi- I, New Delhi [2005 (4) TMI 66 - SUPREME COURT OF INDIA] followed.
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2012 (12) TMI 265
Eligibility for Cenvat credit - nexus with the manufacture of final products – input service - manufacture sugar and molasses - services of the insurance of - plant and machinery including breakdown of machinery, company’s vehicles, employees in respect of medical claim (Medi-claim), stock of finished goods (sugar) and molasses (by product) kept in the factory, cash in safe and transit; and finished goods (sugar) in transit - According to Department services have no nexus with the manufacture of final products – Held that:- Any prudent businessman in manufacturing business would insure his plant and machinery, goods in storage, cash in transit and goods in transit if his sales are on FOR destination basis - services are integrally connected with the manufacturing business of an assessee and the same have to be treated as “activities relating to business” and hence covered by the definition of input service - appellant plead that the lower authorities decided the case against them without giving them opportunity to produce these documents - Since these documents go to the root of the matter, the miscellaneous application filed by the appellant for admitting this additional evidence is allowed - appellant’s claim regarding Cenvat credit can be examined with regard to these documents only by the original adjudicating authority, tine matter has to be remanded to the original adjudicating authority
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