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Central Excise - Case Laws
Showing 201 to 220 of 260 Records
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2012 (12) TMI 264
Cenvat credit demand along with interest and penalty - Cenvat credit - inputs in process destroyed in fire – Held that:- If the WIP has reached the stage, when it can be considered as manufactured goods, in that case, the same treatment as applicable to finished goods - if the activity carried out on the WIP goods cannot be considered as amounting to manufacture, in that case, the said goods should be considered as input and the treatment for reversal of credit applicable to input would be applicable - no dispute about the fact that the insurance claim received by the appellant in respect of loss of the work-in-process inputs does not include the element of Central Excise duty - Cenvat credit demand along with interest and penalty set aside
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2012 (12) TMI 263
Demand of differential duty - Confiscation of seized goods – alleged that Stereo Cassette Players received from Delhi without cover of invoices and without payment of duty which were not accounted for in the statutory records by the respondents – Held that:- Revenue is not contesting the fact that confiscation of the goods seized in the hands of current respondent or in the hands of suppliers of the goods in Delhi. Since the goods have held to be not liable for confiscation - demand of differential duty not sustainable
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2012 (12) TMI 262
Duty demands – limitation - appellants had purchased DEPB scrips obtained by M/s. Shree Krishna Impex – alleged that the DEPB scrips were obtained by M/s. Shree Krishna Impex by over valuing the goods and therefore, correct value in the DEPB was not reflected and therefore the imports made by the appellants against such licenses have to be treated as non-duty paid – Held that:- DGFT has yet to decide whether the value declared for the purpose of obtaining DEPB scrips is correct or not and they have also not taken action to reduce the value of DEPB scrips or to cancel the same - action taken by the Revenue seems to me pre-mature - matter remanded - Waiver of pre-deposit allowed
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2012 (12) TMI 261
Denial of cenvat credit on iron and steel structure - Modvat credit on various items which were used for fabricating items like vacuum tank, syrup extraction receiver, stationary flange juice guard etc. – alleged that appellant failed to establish that these items were used as parts and accessories of the goods falling under specific heading – Credit is not available on goods which are used for erecting the machine or constructing any foundation or supporting structures basically because these items become immovable property - admissibility of the claims are decided having regard to the issue whether the items are used in erecting machinery or are part and accessories of the machinery and the decision in respect of each item as declared by the appellant - held that:- all items can be considered to be parts and accessories of “Machinery for Sugar Manufacture” falling under Heading 8438.30
An observation - I give my findings based on information available on record and taking declaration to be correct. This may lead to some inaccuracies but in the facts and circumstances such inaccuracies are inevitable. Such inaccuracies could have been avoided if the lower authorities were willing to inspect the items and record their findings on use each item which was not done. If I remit this matter for de-novo consideration, going by past experience, the authorities below are most likely to keep writing about case laws without verifying actual use and waste the time of the Tribunal again on this matter involving a small amount. So such a course of action is not warranted.
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2012 (12) TMI 260
Cenvat credit – alleged that appellants had not reversed the cenvat credit on the inputs so shown as written off in their balance sheet – Held that:- It is not Revenue’s case that the inputs were cleared from the factory. Merely because the same were written off in the books of account and the value shown as nil, by itself, cannot be considered to amounting to removal of the inputs from the factory premises in the absence of any evidence to that effect - inputs were still in their possession. Revenue has not rebutted the above submission of the appellant and there is no allegation or finding that the inputs stand cleared from the factory - Cenvat Credit Rules, 2004 were amended on 16-5-2005 -
The question whether this new provision will apply for inputs written off prior to 16-5-2005 was examined by the Mumbai High Court in the case of CCE v. Hindalco Industries Ltd. - [ 2011 (6) TMI 662 - BOMBAY HIGH COURT] and held that the provisions cannot be invoked in such a situation.
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2012 (12) TMI 259
Refund - Cenvat credit of input services - processing of frozen shrimp and frozen fish – export – Held that:- Frozen shrimps and frozen fish are attracting no duty or rather ‘nil’ rate of duty and, therefore, need not be cleared on execution of any bond as there is no duty liability. As there is no duty liability and the appellants are undisputedly manufacturing only “exempted goods” (‘nil’ rated goods) during the disputed period the bar prescribed in terms of Rule 6(1) of the CENVAT Credit Rules shall apply - as the appellants are processing only exempted products and since the bar under Rule 6(1) of the CENVAT Credit Rules shall apply, the question of their executing a bond envisaged under Rule 5 of CENVAT Credit Rules does not arise - Decided against the assessee.
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2012 (12) TMI 258
Refund claim - unutilized Cenvat credit of Additional Excise Duty – Held that:- the appellant seeks cash refund of unutilised AED (T & TA)) credit i.e. credit to personal ledger account (PCA) on the ground that the same has been accumulated on account of wrong instruction of the Department refraining them from utilising this credit for payment of AED (GSI) and thereby compelling them to pay the AED (GSI) leviable on their final products through PLA. However, since undisputedly on account of taking over of the unit by M/s. Harshit Textile Pvt. Ltd., the unutilized AED (T &TA) credit has been transferred in favour of M/s. Harshit Textiles Pvt. Ltd., there is no question of refund of this credit to the appellant. Their plea for cash refund of this credit to M/s. Harshit Textiles cannot be entertained as no such request has been made by M/s. Harshit Textiles before the lower authorities. - in favour of Revenue
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2012 (12) TMI 228
Cenvat Credit - rent-a-cab services - transportation of workers/employees from their factory to homes and back - for sending sick employees to hospital - for transporting children of employees/workers to school/tuition centres and back - Input Service - Cenvat credit demand, Interest and Penalty - nexus with manufacture of Goods - held that:- service of rent-a-cab service availed for bringing employees to the factory and dropping them back home is covered by the definition of Input Service and appellant had rightly claimed Cenvat Credit.
Decision in C.C.E., Bangalore vs. Stanzen Toyotetsu India (P) Ltd. [2011 (4) TMI 201 - KARNATAKA HIGH COURT] and C.C.E., Bangalore III vs. T.G. Kirloska Automoiive Pvt. Ltd [2011 (4) TMI 206 - KARNATAKA HIGH COURT]; that also judgment of Hon’ble Punjab & Haryana High Court in the case of C.C.E., Chandigarh I vs. M/s Federal Mogul Goetze (India) Ltd [2011 (9) TMI 120 - PUNJAB AND HARYANA HIGH COURT] is followed.
cenvat credit in relation to the ambulance services - held that:- Factory owner is under legal obligation to ensure basic medical facility for the welfare of the employees who may suffer from injury in accident or may suddenly fall sick. In the instant case, hiring of ambulance for carrying sick employees to the hospital for treatment is extension of the aforesaid legal obligation of the assessee - health of the workers in a factory has direct relation to its output - service tax paid on ambulance service i.e rent-a-cab service for ambulance, by the appellant in respect of welfare of employees has nexus with the production of final product - Com has fallen in error in disallowing aforesaid cenvat credit to the appellant.
Cenvat credit for transportation of employees children to schools/tuition centres - is a welfare activity which is not covered by the definition of Input Service - cenvat credit demand of Rs.62,435/- is upheld along with interest, rest of cenvat credit demand is set aside. Since the issue involved in this appeal relates to interpretation of the provisions of Cenvat Credit Rules, penalty of Rs.10,000/- imposed on the appellant is also waived.
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2012 (12) TMI 227
Disallowance of Cenvat credit - Recovery of Cenvat credit with Interest and Penalty - inputs/capital goods and services utilised by the appellant in the research and development centre had no direct or indirect nexus with the manufacture of final product(Department) - appellant seeking waiver of condition of duty demand, interest and penalty - held that:- Appellant who is manufacturer of motor vehicles is required to submit prototype of the vehicle for test by agency specified under the rules before starting actual production of motor vehicle for sale. Therefore, any charge incurred in research and development unit would fall within the definition of Input service, capital goods or input service for the purpose of availing cenvat credit - impugned order is not sustainable as nexus with manufacture is established and thus this is a fit case for grant of waiver of duty demand, interest and penalty pending appeal - after waiving the conditions ofi pre-deposit, impugned order is set aside and remand the matter back to the Commissioner concerned for de novo adjudication in the light of the Motor Vehicles Rules, 1989 after giving opportunity of being heard to the party as the above plea has been raised for the first time before the Tribunal in the interest of justice - Appeal is decided accordingly.
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2012 (12) TMI 226
Calculation of entitlement of DTA sale - 100% EOU - Exim Policy - whether deemed export is equivalent to physical export - held that:- Tribunal in its impugned order held that once Development Commissioner giving permission to the appellant, a 100% EOU, to sell goods in DTA up to a specified value. Revenue cannot go beyond the permission and dispute it holding that for fixing the limit only physical exports and not deemed exports should have been taken into account - no merit in the appeal filed by the Revenue and accordingly, reject the same.
Decision in GINNI INTERNATIONAL LTD. Versus COMMISSIONER OF C. EX., JAIPUR [2001 (9) TMI 165 - CEGAT, COURT NO. IV, NEW DELHI] followed.
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2012 (12) TMI 225
Cenvat credit – appellants received goods along with invoices on which they have taken input duty credit - alleged that goods were purchased from the market and that there were no duty paying documents evidencing payment of duty to the Central Excise Department – Held that:- They cannot be given duty credit, if the supplier from whom they have purchased the goods has not paid the duty to the Central Excise Department in the first place - If the appellants have been given invoices showing payment of duty without the supplier having paid the duty, there are legal recourses available to the appellants to obtain compensation from the supplier. There is no reason why the Central Excise Department should compensate them because they had entered into transactions which someone who has duped them by giving them such invoices on which credit cannot be taken by them - appellants directed to pre-deposit equal to 50%
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2012 (12) TMI 224
Unaccounted goods – seizure – Held that:- Non-accountal of excisable goods produced by a manufacturer in the prescribed RG-I register is contravention of the provisions of Rule 10 of the Central Excise Rules, which attracts confiscation of the unaccounted goods and penalty on the manufacturer under Rule 25(1)(b) ibid. Therefore, the unaccounted goods under seizure have been correctly ordered to be confiscated and penalties have been correctly imposed on the appellant company and its Directors. However, looking to the fact that appellant company had gone to the Settlement Commission and have discharged the duty liability as determined by the Settlement Commission, the redemption fine is reduced
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2012 (12) TMI 223
Refund claim - goods cleared to 100% EOU - unjust enrichment – Held that:- Certificate given by the buyer of the respondent that no excise duty was paid by them to the respondent - as the respondent was entitled to clear the goods without payment of duty and it was only on account of delay in permission on the part of the department - Merely because the duty element stands reflected in the excise invoices, by itself, cannot be the basis to hold that such excise duty was recovered by them from their customer, who is 100% EOU and such, is not liable to pay excise duty - respondent cannot be called upon to establish by other evidence that the said duty has not been passed on to their buyer – refund allowed
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2012 (12) TMI 222
Penalty whether mandatory - Section 11AC or Rule 25 - intention to evade payment of duty – Held that:- A mandatory penalty equal to the duty (neither more nor less), short paid or not paid or erroneously refunded is payable if such non-payment or short payment or erroneous refund was due to fraud, collusion, wilful misstatement or suppression of facts etc. under Section 11AC. - Rule 25(1) does not envisage mandatory penalty equal to duty, the rule only provides penalty upto duty payable on such contravening goods or Rs. 2,000/- whichever is higher. However, from the above it does not follow that provisions of Rule 25(1) would not apply in case the ingredients of fraud, wilful mis-statement or suppression etc. are not present. Otherwise the provisions of Rule 25(1) would be rendered otiose.
Proposal in the show cause notice was for imposition of penalty for contravention of Rule 4 and Rule 8 ibid, under Section 11AC read with Rule 25(1) - there is no suppression of facts before the Department of wilful mis-statement or fraud or evasion of duty - this is not a case where the penal provisions can be upheld or that where the penalty can be imposed - provisions of Section 11AC are para-materia to the provisions of Rule 25(1)(d) so far as the contravention of any of the provisions of Rules with intent to evade payment of duty is concerned - penalty is not imposable under Rule 25 – in favor of assessee
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2012 (12) TMI 221
Cenvat credit - service tax paid on the insurance on vehicle, finished goods, cash in transit and insurance on cash box – Held that:- insurance service may be indirectly connected to the manufacturing or other activity but that may be in relation to manufacture or various other business activities enumerated in Rule 2(l) of Cenvat Credit Rules, 2004. This establishes the dependability of input to the output. Unless the vehicle is used otherwise than serving the purpose of manufacture or providing of service, the insurance paid to cover risk should not go out of consideration to grant Cenvat credit - considering inevitability of insurance to make the assessee risk free for carrying out its manufacturing operation and other activities related thereto or to the services relating to inclusive aspects under Rule 2(l) cenvat credit allowed
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2012 (12) TMI 220
Admissibility of cenvat credit - cenvat credit demand in respect of MS angles, Channels, CTD bars, sheets etc. used for fabrication and erection of supporting structures of the machinery, this credit has been taken during Nov. 1994 - August 1995 period – Held that:- With effect from 16-3-1995 goods of chapter 73 were not mentioned in the new definition. The eligibility of capital goods modvat credit of M.S. angles, channels, sections, CTD bars etc. used for fabricating and erecting supporting structures for machinery has to be examined on the basis of definition of “capital goods” - portion of the impugned order disallowing Modvat credit in respect of MS Angles, Channels, Sections, bars, etc. used for supporting structures for machinery for the period prior to 16-3-1995, is set aside and the portion of the order disallowing the Modvat credit in respect of these items for the period w.e.f 16-3-1995 is upheld - appeal partly allowed
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2012 (12) TMI 219
Disallowance of credit - discharge of additional customs duty from DEPB account - Notification No. 96/04-Cus. was issued on 17-9-2004 – Held that:- In absence of specific provision of law, there cannot be any artificial construction of law, that can be made to make law unworkable - when the bona fide of the appellant is not doubted and law was under confusion stage authority cannot proceed against the appellant to disallow Cenvat credit - appellant was also in dark to ascertain the proper position of law, in view of travel of the litigations from 2002 to 2010 from Tribunal to High Court. Therefore, noticing no mala fide, the appellant also succeeds on limitation - appeal is allowed partly
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2012 (12) TMI 180
Valuation of wast and scrap - cost + 15% - CAS 4 - Rules 8 and 9 - Respondent cleared to other units of theirs - waste and scrap of cast iron generated in the course of manufacture of textile manufacture on payment of duty on assessable value of Rs.3/- per kg - Revenue demanding differential duty of Rs.1,35,718/- and interest thereon and also proposing a penalty as respondent should have paid duty on assessable value estimated at 115% of the cost of production of the goods - held that:- As respondent has paid an amount of Rs.1,59,900/- as differential duty on the waste and scrap in question after the impugned order was passed - respondent further submits thus without verifying any of these facts the department now has gone on appeal demanding a lower amount than what is accepted by the appellants - no valuation issue survives for a decision on the particular facts of this case - appeal is therefore dismissed.
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2012 (12) TMI 179
Waiver of pre-deposit - SSI Exemption - whether the applicant is required to reverse the CENVAT credit in respect of inputs lying in stock – Held that:- Show-cause notice was issued under Rule 14 of the CENVAT Credit Rules 2004 read with Section 11A of CEA, 1944 and show-cause notice was confirmed by the Original Authority under Rule 14 of the CCR 2004 - Commissioner (Appeals) in para 11 of the Order-in-Appeal has given a finding that Rule 14 is not applicable in the present case - assessee while opting for SSI exemption is not required to reverse the CENVAT credit - pre-depoist is waived
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2012 (12) TMI 177
GTA service on outward transportation - admissibility of Cenvat Credit – Held that:- Cenvat credit on GTA service from the factory to the port of export would be available - appellants are rightly entitled for the Cenvat credit of the service tax paid on GTA service utilised for transportation of the export goods from the factory to the port of shipment
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