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Central Excise - Case Laws

Showing 241 to 260 of 260 Records

• 2012 (12) TMI 102
  

  CENVAT credit on outdoor catering service – Held that:- When the assessee provides outdoor canteen facilities because of a statutory obligation imposed on him under Section 46 of the Factories Act, it becomes a condition of service as far as the employees are concerned. He has paid the service tax on outdoor canteen services - cost incurred in rendering such service will be included in the cost of production - credit of service tax would be allowable to a manufacturer even in cases where the cost of the food is borne by the worker – matter remanded to original authority in de novo proceedings to ascertain whether respondent employed more than 250 workers during the material period - it is found that the relevant conditions have been satisfied by the respondent, they would be entitled to the CENVAT credit in

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• 2012 (12) TMI 101
  

  Demand - fraud - attachment of the property - department's request for continuance of attachment and directed the appellant to deposit an amount of Rs.6 crores - appellant's submission that the attachment of the property by the Revenue should be ordered to be released so as to enable him to dispose the same and deposit Rs.6 crores as directed by the Tribunal – Held that:- Difference of opinion between members regarding following issues - Whether it is justified to revoke the notice of attachment in respect of all the four items of properties at this stage when the stay order has not taken effect at all - Whether in the facts and circumstances of the case it will be better to order release of properties only to the extent necessary to raise Rs. Six crores at this stage - Whether it will be appropriate to allow the Revenue to take action to realize Rs. 6 crores by completing the process of attachment and sale of such property - matter referred to larger bench.

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• 2012 (12) TMI 100
  

  SSI Exemption - value of clearance – appellant were also manufacturing medicines under the brand-name of others for which they were paying duty without availing benefit under the above notification – alleged that exemption could not be availed on any clearance beyond the value limit of Rs. One crore, even if the first clearances included duty paid clearance – Held that:- with the reference of case of K.N. Chari Rubber Plastics (2001 (4) TMI 157 - CEGAT, CHENNAI ) - exemption for small scale units allowed – in favor of assessee

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• 2012 (12) TMI 99
  

  Whether goods procured duty free from DTA by a DTA unit for manufacture of finished goods when cleared to a unit in SEZ shall amount to export – Held that:- Clarification issued by Board vide Circular No. 29/2006-Cus., dated 27-12-2006 clarifying that section 2(m) of SEZ Act, 2005 envisages that supply of goods or providing services, from DTA to a SEZ unit or SEZ developer shall constitute export - supply of goods to buyers who had further supplied the same to SEZ have to be held as eligible exempted clearances in terms of Rule 19(2) read with Notification No. 43/2001-C.E. (N.T.) – in favor of assessee

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• 2012 (12) TMI 98
  

  Denial of exemption under Notification No. 5/99-C.E. - alleged that required certificate was not produced at the time of clearance the appellants were not eligible for the exemption - manufacture of Cotton and Synthetic yarn - sale to National Handloom Development Corporation Lucknow – Held that:- Condition involved in this case is of a type where compliance after clearance of goods cannot be fatal to the claim - whether the certificates produced cover the quantities issued, whether it is issued by the proper authority etc. have not been verified by the lower authorities - matter remanded to the lower authority

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• 2012 (12) TMI 97
  

  Refund – export - adjudicating authority after going through refund claims and all the relevant documents has sanctioned the refund claims to the appellants holding that the assessee is eligible for refund to the extent of ratio of export turnover to the total turnover - appeals filed by the Revenue were decided by the Commissioner (Appeals) vide impugned Order-in-Appeal holding that the excess refund sanctioned to the assessee are liable to be rejected and recovered from them – Held that:- Commissioner (Appeals) has given finding only in those cases where excess refund was granted to the assessee on the basis of proportionate credit and he has not considered the cases where less refund were sanctioned to the assessee, though the appeals were filed by the Revenue in respect of all 16 Orders-in-Original - matter remanded back to the original adjudicating authority to examine and decide the refund claims on the basis of actual use of inputs gone into the manufacture of final product exported under bond or under letter of undertaking month-wise

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• 2012 (12) TMI 96
  

  Communication of orders to parties – Held that:- Communication of the order to authorised agent of a person is sufficient communication. Thus when the order was passed by the Tribunal on 22nd July, 2010 in presence of counsel of the appellant, the order shall also be deemed to be communicated on the same date and the submission of the appellant that unless the order is received by the appellant in person, the order shall not be treated to be communicated to the appellant, cannot be accepted - appeal is dismissed

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• 2012 (12) TMI 48
  

  Writ petition against the stay order directed the assessee to depsoit 50% of demand - section 35F - held that:- In the present case, merely because the appellate authority has for one period taken a view in favour of the assessee, it cannot be binding on the Commissioner as prima facie case for grant of stay, as it is evident from the narration of facts that in respect of two different periods, the issue is before the Appellate Tribunal, one appeal by the assessee petitioner and the other by the Department. The original authority on two instances has held against the petitioner assessee.

  It is to be noted that exemption is not a matter of right. The petitioner assessee has to satisfy the conditions of the Notification and that is denied by the Department on more than one occasion by adjudicating on facts and in law. The issue is still at large before the Appellate Tribunal.

  This court finds that the order under challenge is neither unreasonable nor it would cause undue hardship on the petitioner. Therefore, the order under challenge is a balanced order taking note of the assessee's claim as well as the interest of the Department and it is in accordance with Section 35F of the Central Excise Act. - writ petition dismissed - decided against assessee.

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• 2012 (12) TMI 47
  

  Waiver of Pre-deposit of duty, Interest and Penalty - goods were cleared without payment of duty stating the intended clearance for Export - held that:- In absence of Notification granting exemption to the good cleared to the unit availing EPCG benefit, the applicants had not made out a case for waiver of duty - applicants are directed to deposit the entire duty amount within a period of six weeks. On deposit of the duty amount, pre-deposit of interest and penalty is waived and recovery thereof is stayed during the pendency of the appeal.

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• 2012 (12) TMI 46
  

  Availability of Cenvat credit on the welding electrodes used in maintenance and repair of the Machinery - Following the decision of court in case of [Vandana Global Ltd. Versus CCE 2010 (4) TMI 133 - CESTAT, NEW DELHI] held that:- If Steel items are used in the manufacture of capital goods, they are required to be held as admissible cenvatable items. It is the Revenue's contention in the memo of appeal that as the steel items were used in repair and maintenance of parts and accessories of plant and machinery and for replacement of worn out parts. Even if that be so, the said items have to be held as used in fabrication of capital goods - no infirmity in the finding of Com(A)- appellant s appeal is allowed and Revenue s appeal is rejected.

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• 2012 (12) TMI 45
  

  Demand – shortage of scrap – manufacturer sent the goods for job-work. After the completion of job-work the goods and scrap is returned to the appellant – alleged that they have cleared the aluminium and brass scrap on the ground that the appellant has mixed the case and sold at a lesser value – Held that:- They received and keep stock of scrap in a contention can be mixed manner under the head of iron and steel scrap. Their accepted because the scraps in question are highly valued in comparison to iron and steel scrap. It is not feasible that these are treated in such a cheap manner by business people. Separate customers and separate foundries exist to deal with scraps of separate metals. Further, the stock taking report shows that the different scraps were found and weighed separately. Hence receipt in mixed condition, keeping stock in mixed condition under the head of iron and steel scrap etc are afterthought only - department could not produce any evidence in respect of lesser value of scrap and the whole case is based on assumption and presumption. No investigation whatsoever has been carried out from the purchasers - appeal is allowed

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• 2012 (12) TMI 44
  

  Classification of printing plate processor and parts – alleged that adjudicating Commissioner took note of the oral submissions made at the time of personal hearing before her, and has accepted the alternative classification under Heading 8442 prayed for by the appellants themselves – Held that:- Same classification is proper as the legal text under the heading covers machinery, apparatus and equipments for making plates. Parts also technically get classified under the same heading as ordered by the adjudicating Commissioner - goods are classifiable under Heading 8442 and the duty demand would have to be reworked out accordingly

  As regards the issue of small scale exemption - extended period of limitation - Held that:- Non-declaration of use of other’s brand name despite having knowledge about the same, amounts to suppression - in regard to the demand relating to non-availability of small scale exemption, the extended period of limitation is applicable on the ground of suppression - matter remanded for the limited purpose of re-quantifying the duty demand in this regard to the original authority - penalty imposed under Rule 173Q

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• 2012 (12) TMI 43
  

  Demand of duty – denial of benefit – demand raised and confirmed in respect of destroyed cigarettes – alleged that appellant showed excess destruction in the quality control laboratory so as to avoid small amount of duty – Held that:- Cigarettes meant for quality control test are not liable to duty. It is also on record that cigarettes being sent to the laboratory are being recorded in the statutory records. Mere non maintenance of the destroyed quantity of cigarettes in the laboratory when the appellants are claiming that 100% destructions were made cannot be made the ground for denial of the benefit - demand set aside

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• 2012 (12) TMI 42
  

  ROA application – Held that:- In the case of ECIL (S.C.) did away with the requirement of the Committee’s permission - earlier judgments of the Apex Court introducing the requirement of the Committee’s permission for PSUs came to be recalled - appeal is restored

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• 2012 (12) TMI 41
  

  Chargeability of interest - differential amount paid for inputs removed as such - reversal of equal amount of credit, done before issue of show cause notice on being pointed out – Held that:- This is not a case of wrong availment of credit - payment of differential amount under Rule 3(4) of the Cenvat Credit Rules, 2002, there appears to be no provision of charging of interest nor is the Ld. DR able to show any such provision - no interest is chargeable

  Penal liability – Held that:- Case would be covered under the provision of Rule 13(1) of Cenvat Credit Rules, 2002 as there is a contravention of Rule 3(4) in as much as the entire amount of credit as required under the amended provision was not reversed initially. For such contravention which was not on account of fraud, mis-statement, collusion etc. penalty reduced

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• 2012 (12) TMI 40
  

  Whether CENVAT credit of the service tax paid on certain services viz. rent-a-cab service, outdoor catering service, telephone service was admissible – Held that:- Credit in question is admissible to them inasmuch as all the said services were availed in relation to the business of manufacturing the final product - definition of input was not restricted to services used in or in relation to manufacture of final products but the same also extended to all services used in relation to the business of manufacture of final products - appeal is allowed in so far as rent-a-cab service and telephone service are concerned

  Regarding outdoor catering service – Held that:- Where a manufacturer avails outdoor catering service in compliance with the mandatory requirement under Section 46 of the Factories Act, it can be said to have been availed in relation to the business of manufacturing the final product. Section 46 of the Factories Act makes it obligatory for the manufacturer to maintain a canteen for their employees in the factory where the number of employees is 250 or more - cost of outdoor catering service to be included in the cost of production of the final product - admissibility of CENVAT credit on outdoor catering service shall be reexamined by the original authority - admissibility of CENVAT credit on outdoor catering service shall be reexamined by the original authority

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• 2012 (12) TMI 39
  

  100% EOU – demand of duty of Excise on certain capital goods which were claimed to have been transferred to another 100% EOU but found not to have been accounted for by the appellant - demand of duty is in respect of the capital goods mentioned in Annexures - II and III to the show-cause notice – Held that:- Many of the capital goods mentioned in the two annexures are covered by re-warehousing certificates issued by the proper officer having jurisdiction over the recipient unit M/s. Agro Dutch Industries Ltd. In respect of some other goods, the appellant has claimed that these goods were used, over a period of time, in the manufacture of larger equipments and that such larger equipments were re-warehoused in the recipient unit - there is no reference whatsoever to any specific re-warehousing certificates or other documents produced by the appellant. It just contains an account of the manner in which a 100% EOU must maintain the records - adjudicating authority should have endavoured to ascertain whether the assessee could reconcile the capital goods mentioned in Annexures - II and III to the show-cause notice with the re-warehousing certificates and other documents produced by them. This exercise, it appears, was not even attempted – matter remanded to Commissioner

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• 2012 (12) TMI 30
  

  Cenvat credit on input services - disallowance as the services have no nexus with excisable goods manufactured - Held that:- The matter of invoices in the names of "Valco Aluminium Extrusion" and "Vishnu Associates Ltd." the assessee submits that "Valco Aluminium Extrusion" is the brand name of their product and "Valco Industries Ltd." is the registered name of the company. So some of the service providers used their brand name to refer to the company and that is the reason why such name appears on the invoices in some cases. They also point out that their unit at Chandigarh was earlier known as "Vishnu Associates Ltd." before their name was changed to "Valco Industries Ltd". A few service provides had issued bills in their earlier name. There is no other company by name. "Vishnu Industries Ltd." and the services in question was received by them and utilized. So considering provisions of the proviso to Rule 9(2) of Cevant Credit Rules, 2004 there is no justification in denying the credit.

  Security services for the factory at Chandigarh - Held that:- No reason to deny Cenvat credit on this however, the submission of fact made by the Counsel in this regard needs verification. In respect of mobile phones also, the credit is to be extended based on precedent decisions though such credit should be apportioned as would relate to dutiable products following the principles laid down under Rule 6 of Cenvat Credit Rules.

  Service tax relating to insurance service for the vehicles in the name of the Directors - Held that:- It is necessary to verify the factual submissions regarding the fact that vehicles were figuring as assets in the balance sheet of the company and its expenditure was being met by the company. Also it is necessary to apportion the Cenvat credit on this item between the value of dutiable goods and value of exempted products manufactured by the appellants following the principles laid down under Rule 6 of Cenvat Credit Rules 2006.

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• 2012 (12) TMI 29
  

  Cenvat credit on aluminium sheets, flush partition, plush door, ceiling - denial as the items are neither inputs used in the manufacture nor capital goods - Held that:- The case relied by assessee are distinguishable from the facts of the present case and also the Manager of the applicant's unit has already admitted in this case that the items are not covered under the definition of capital goods under Rule 2 of the Cenvat Credit Rules.

  The applicant has not able to make out a strong prima facie case in their favour. Order to pre-deposit of 25% of the duty within a period of eight weeks and compliance is to be reported.

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• 2012 (12) TMI 27
  

  Waiver of Pre deposit of Duty u/s 35F – Transaction value versus MRP based value - Assessee manufacture insecticides on job works basis – Held that:- . Rule 2A(a) provides exemption from printing MRP on the packages more than 25 kgs. Admittedly, in this case, the packages cleared by the appellant were of 25 kgs. and not more than 25 kgs., as such, Rule 2A does not help the appellant.

  Regarding industrial use - held that:- Purchasing concern was admittedly involved in trading and did not put the goods to industrial use. - prima facie against the assessee - Therefore 50% of duty demand is waived.

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