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Central Excise - Case Laws

Showing 121 to 140 of 225 Records

• 2013 (8) TMI 388
  

  Removal of goods under Rule 4(6) of the Cenvat Credit Rules, 2004 - Sale of goods from the premises of Job worker - permission denied - Respondent manufactures copper anode, copper cathode etc. at their Tuticorin factory - They sought permission from the Deputy Commissioner of Central Excise, Tuticorin Division for removal of copper anode to their units at Silvassa , Chinchpada and Pipara under Rule 4 (6) of Cenvat Credit Rules, 2004 for converting it to cathodes or copper wire – Held that:- Anode is both final product as well as intermediate product at their factory at Tuticorin . It is final product when it is cleared on payment of duty. It is intermediate product when it is further used in the manufacture of cathode or wire rods. Once the goods are recognized to be intermediate product there is no reason to deny the benefit Rule 4 (6) of Cenvat Credit Rules, 2004. That is what was advised to the respondent by CBEC. That is what is decided by Tribunal in very many decisions given in the context of erstwhile rule 57 F( 4) which provision was replaced by Rule 4 (6) in the new Rules – Reliance is placed upon the decision in the case of Eveready Industries Ltd. Vs. CCE - 2004 (8) TMI 302 - CESTAT, BANGALORE ] and Tega India Ltd Vs. CCE – [ 1999 (6) TMI 109 - CEGAT, CALCUTTA].- Decided in favor of Assessee.

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• 2013 (8) TMI 387
  

  Exemption Notification No. 30/94-C.E. - Commissioner rejected exemption - Held that:- there is no requirement that separate account or inventory of the inputs meant for exempted and dutiable finished products must be maintained. There is no allegation in the show cause notice that the appellant have taken cenvat credit even in respect of inputs which were used in the manufacture of exempted final products - there is no justification for denying the exemption Notification No. 30/94-C.E. to the appellant during the period of dispute and as such the duty demand against the appellant does not appear to be sustainable - Following decision of CHANDRAPUR MAGNET WIRES (P) LTD. Versus COLLECTOR OF C. EXCISE, NAGPUR [1995 (12) TMI 72 - SUPREME COURT OF INDIA] - Decided in favour of assessee.

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• 2013 (8) TMI 386
  

  Short paid duty - undervaluation of goods - Commissioner confirmed demand - Held that:- show cause notices were issued on the ground that the Appellant undervalued their goods in comparison with the assessable value of the goods cleared to others under the Appellant's own name, 'Yule Shakti', whereas the learned Commissioner confirmed the demand on the ground that the Appellant did not submit a copy of the Agreement. However, the learned Commissioner at Para 8(xvi) of his Order, has recorded that a copy of the Agreement dated 11.6.1982 entered into between the Appellant and M/s. Goodyear, was submitted. Surprisingly, he has not given any finding in regard to the copy of the Agreement produced by the Appellant - It is well-settled principle that the already approved Price Lists cannot be re-opened retrospectively. So far as invoking the extended period is concerned, the Department is required to show that the assessee had suppressed the material facts from the Department - Department could not show that the appellant had suppressed the material facts from the Department - demand-cum-show cause notices are hit by limitation of time and therefore, the impugned Order does not survive - Decided in favour of assessee.

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• 2013 (8) TMI 385
  

  Confiscation of Raw material under Rule 15 of the CCR, 2004 – Held that:- Under Rule 15 of the Cenvat Credit Rules, the inputs can be confiscated only if wrong Cenvat credit has been availed in respect of the same - There is no finding that the appellant have availed Cenvat credit wrongly in respect of the metalized film and plastic granules – Therefore, just for non-accountal of the plastic granules and metalized film as per the provisions of Rule 9(5) of the Cenvat Credit Rules, the same could not be confiscated under Rule 15 and the confiscation order passed is not sustainable.

  Confiscation of Plastic film, an intermediate product for captive consumption – Held that:- Appellant admittedly were maintaining its account in the RG-1 register by treating the same as goods manufactured, though for captive consumption - To the extent the stock of plastic film was not accounted for in the RG-1 register, the same would be liable for confiscation. However, looking to the nature of the contravention, the quantum of redemption fine and penalty on the appellant on this count is higher side. Accordingly, the redemption fine is reduced to Rs. 50,000/- and penalty imposed on the appellant-company is reduced to Rs. 20,000/-.

  Penalty under Rule 26 of the Central Excise Rules, 2002 – Held that:- Impugned order does not give any finding as to how the provisions of Rule 26 are attracted in the case Shri Umesh Kumar Agarwal, Director as this Rule is applicable in respect of person who knowingly deals with the excisable goods which he knew or had reason to believe are liable for confiscation – Decided in favor of Assessee.

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• 2013 (8) TMI 384
  

  Clandestine removal of finished goods i.e. Transformer – Held that:- In the Panchnama itself it has been recorded that when Shri Dubey of the respondent company was asked about the 10 missing transformers, he explained that the same have been put in the oven, but the oven was not opened at that time as it was not feasible to do so - Shri Ravi Dubey of the appellant company in his statement dated 12-9-1997 recorded under Section 14 of Central Excise Act, 1944 has made the statement that the 10 transformers had been put in the oven for reovening. Just because there was no entry in the RG-1 register regarding transfer of 10 transformers from the bonded store room to the manufacturing section of the factory for reovening and when this fact was told to the officers at that time but still they did not verify, it cannot be concluded that there was unexplained shortage of 10 transformers - Duty demand on the 10 transformers set aside.

  Shortage of input 30.745 M.T. of BP sheets and 29.65 M.T. of CRGO electrical steel sheets – Cenvat credit taken on the inputs – Held that:- These shortages had not been detected by comparing their stock available in the factory at the time of officer’s visit on 12-9-1997 with the stock as reflected in RG-23A Pt. I register - In respect of BP sheets Investigating officers added the quantity issued for manufacturing during period from 1-9-1997 to 12-9-1997 to the stock of BP sheets as reflected in RG-23A Pt. I register and, thereafter, compared this total with the stock of BP sheets lying in store room as well as in the factory in various stages of processing - The shortage in respect of CRGO sheets has also been determined in the same manner - In ascertaining the stock of cenvated inputs in this manner the officers have not taken into account certain quantity which was available in the factory and certain quantity which has been used in the manufacture of finished goods - Department has not been able to prove that there was actual shortage of BP sheets and CRGO sheets as alleged in the show cause notice – Decided against the Revenue.

  Clandestine removal of 14.124 M.T. of wires and strips in respect of which Cenvat credit had been taken – Held that:- Allegation is based on the presumptive consumption of this item by the department and as such there is no evidence regarding any removal of this item without payment of duty – Revenue allegation is based on the presumption of total quantity supposed to have been consumed on the basis of GTP specifications - Consumption is not always according to the GTP specifications and can be higher also – Cenvat Credit demand dropped – Decided against the Revenue.

  Illicit removal without payment of duty of 9 M.T. of cenvated wires and strips which is shown to have been destroyed in fire in 1994 and 1995 - Appellant’s claim is that this large quantity of wires and strips was contained in the newly made as well as repaired transformers which had been totally destroyed in fire accidents in the factory in 1994 and 1995 – Held that:- Neither the respondent had reported about any fire accident during this period nor any claim for remission of duty on the transformers claimed to have been lost in fire have been made - In this case neither there is any evidence of loss of finished goods due to fire nor any claim for remission of duty on the finished goods lost in fire has been made - The respondent, therefore, would be liable to pay duty equal to the amount of Cenvat credit availed on 9,000 kg. of wires and strips - The respondent would also be liable for penalty under Rule 57-I(4) for taking this wrong Cenvat credit – Decided in favor of Revenue.

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• 2013 (8) TMI 383
  

  Confiscation of goods under Rules 25 of the CER, 2002 – Held that:- Under Rule 25 of the Central Excise Rules, 2002, the goods are liable to be confiscated subject to the provisions of Section 11AC of the Central Excise Act, 1944. Therefore, to confiscate the goods under Rule 25, ingredient of Section 11AC of the Act are required i.e. fraud, collusion, wilful mis-statement and suppression of fact or contravention of Rule/Act with an intent to evade payment of duty - Inputs procured by the appellants have been duly entered in Form-4 Register - These goods are not entered in RG-I Register, but it cannot be said that by merely not entering in RG-I Register, there was any intention to evade duty by the appellants - The goods are not liable for confiscation in the facts and circumstances of the case. As the goods are not liable for confiscation, therefore, redemption fine is not imposable, but as the appellants are not maintaining the statutory record properly, therefore, they should be penalized for not maintaining the record properly. To penalize for non-maintaining of proper record, Rule 27 is the proper Rule to impose penalty on the appellants – Penalty of Rs. 5000/- imposed on the appellants.

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• 2013 (8) TMI 351
  

  Excess stock of finished goods and raw-materials on stock taking – Held that:- Excess in the stock of aluminium ingots is 0.592 M.T. in the total stock of about 87 M.T. would work out to about 0.7%. Similarly, the excess in the stock of aluminium scrap is 11.554 M.T. out of total stock of about 870 M.T. which would work out 1.33% - Excess of this magnitude, looking to the total quantity of aluminium ingots and scrap cannot be treated as a real excess, as the same could be due to genuine mistakes on the part of the assessee or their workers in recording the weight of ingots and scrap and, as such, no malafide intention can be attributed to the excess of this magnitude – Reliance can also be place upon the judgment in the case of Hindustan Steel Ltd. vs. CCE reported in 1969 (8) TMI 31 - SUPREME Court, wherein it is held that for imposition of penalty under Rule 173 (1) (a) and 173Q (1) (b) of Central Excise Rules, 1944 there must be intention to evade the payment of duty – Decided in favor of Assessee.

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• 2013 (8) TMI 350
  

  Cenvat credit of service tax paid on the services of commission agents abroad received by them for procuring export orders – Held that:- The service received by the respondent is Business Auxiliary Service which as its names suggests the same is in relation to the manufacturing business of the appellant and, hence, the same would be covered by the expression activities relating to business. Moreover during the period of dispute the definition of input service specifically covered the sales promotion and, procuring sales order is nothing but sales promotion – Also, relying upon the judgment in the case of Cadila Healthcare Ltd. vs. CCE, Ahmedabad [2009 (8) TMI 172 - CESTAT, AHMEDABAD] and CCE, Vapi vs. Nikamal Crates & Bins. [ 2010 (2) TMI 232 - CESTAT, AHMEDABAD], Cenvat Credit is allowed.

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• 2013 (8) TMI 349
  

  Compounded levy - Determination of date of payment - Commissioner held date of payment will be the date when the cheque was presented - Held that:- cheque presented by the appellant to the bank on or before last date of the month is treatable as the date of discharging duty for the second fortnight under the compounded levy scheme. It is observed that the penalty imposed by the adjudicating authority on the appellant is not is not sustainable as the cheque presented to the bank by the appellant was not dishonoured - Following decision of INDIA CEMENTS LTD. Versus COMMISSIONER OF C. EX., HYDERABAD [2002 (1) TMI 242 - CEGAT, BANGALORE] - Decided against Revenue.

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• 2013 (8) TMI 348
  

  Benefit of the Small Scale Industries exemption Notification - Commissioner granted benefit - Held that:- manufacturer is not entitled for the benefit of SSI exemption who have the goods manufactured and who is not Indian or the brand name who is not a manufacturer in India - Following decision of NAMTECH SYSTEMS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, NEW DELHI [1999 (12) TMI 145 - CEGAT, NEW DELHI] and Fristam Pumps (I) Pvt Ltd vs CCE [2003 (3) TMI 481 - CEGAT, MUMBAI] - Decided in favour of Revenue.

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• 2013 (8) TMI 347
  

  Marketability of carbon dioxide - Commissioner held gas not marketable as that was not being capable of bought and sold - Held that:- appellant itself has testified that the shortage of carbon dioxide was met from purchase of such goods made from the market - gas is normally filled in cylinders and bought and sold - Following decision of ARTOS BREWERIES LTD. Versus COMMISSIONER OF CENTRAL EXCISE, GUNTUR [1996 (5) TMI 265 - CEGAT, MADRAS] - Decided in favour of Revenue.

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• 2013 (8) TMI 346
  

  Denial of Cenvat Credit on steel items such as MS plates, flats, pipes, sheets, rods, etc – Held that:- Adjudicating authority appears to have rightly relied on the apex court’s judgment in Saraswati Sugar Mills case [2011 (8) TMI 4 - SUPREME COURT OF INDIA ] wherein it was clearly held that a structural support to any capital goods could not be considered as a part or component of such capital goods - prima facie view that CENVAT credit cannot be claimed by the appellant on the structural steel items used in the fabrication of structural support to raw mill, silo, packing plant, etc. and, therefore, the Commissioner s decision to deny CENVAT credit cannot be faulted – Decided against the Assessee.

  Stay application – Waiver of pre-deposit – Held that:- Entire demand being within the normal period of limitation, and there being no plea of financial hardships, the appellant directed to pre-deposit an amount of Rs.33,00,000/- (Rupees thirty three lakhs only) being the CENVAT credit prima facie deniable to them. They shall pre-deposit this amount within six weeks – Decided against the Assessee.

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• 2013 (8) TMI 345
  

  Cenvat Credit - Common input - Held that:- common input was used for manufacture of dutiable and exempted goods - if proportionate credit is reversed, assessee shall not be directed to deposit a percentage of sale prices - appellant had enjoyed credit for one year at the cost of Exchequer. Therefore, penalty to that extent shall be paid - Decided in favour of Revenue.

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• 2013 (8) TMI 344
  

  Valuation (Central Excise) - Sale to related parties - Demand of differential duty - Penalty u/s 11AC - Commissioner upheld penalty - Held that:- the provision in the Valuation Rules, with regard to sale to related persons, is an exception to the general rule. That exception is applicable only when the manufacturer so arranges that goods are not sold except to or through related person. In the present case, goods are being sold to unrelated parties also. To such a case, the exception does not apply. In any case, the price to the related person cannot be called a non-commercial price since the same was higher than the price to unrelated parties - Following decision of ULTRA REFRIGERATORS PVT. LTD. Versus COMMISSIONER OF C. EX., DELHI-IV[2004 (4) TMI 167 - CESTAT, NEW DELHI] and Birdi Steels Vs. CCE[2004 (10) TMI 145 - CESTAT, NEW DELHI] - Decided in favour of assessee.

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• 2013 (8) TMI 343
  

  Service tax credit - CHA services on export of goods and courier - Commissioner (A) held that such a credit is not admissible as the services are availed after the place of removal - Held that:- in case of FoB contracts the place of removal is the port from where exports have been made - Following decision of CCE, Nagpur Versus Ultratech Cement Ltd., [2010 (10) TMI 13 - BOMBAY HIGH COURT] - Decided in favour of assessee.

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• 2013 (8) TMI 342
  

  Cenvat credit on sugar cess - whether the cenvat credit of sugar cess is admissible to the appellants - Held that:- the Cess Act and the Sugar Development Fund Act both have been brought on the statute book simultaneously on the same day and operate as a consolidated scheme and the provisions of both the Acts have to be read together. On such conjoint reading, it is apparent that a plain reading by itself would indicate that the sugar cess levied and collected cannot be equated with duty of central excise and therefore, cannot be treated to be part and parcel of the amount on which education cess has to be calculated - Following decision of COMMISSIONER Versus SAHAKARI KHAND UDYOG MANDLI LTD.[2010 (3) TMI 718 - GUJARAT HIGH COURT] - Decided against Assessee.

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• 2013 (8) TMI 314
  

  Clandestine Removal - Appellants are manufacturer of Black Steel Pipes and GI Pipes - During the course of physical verification 768 No. (29.500 MT) of Steel Pipes and Tubes were found short by the Preventive officers in the stock of finished goods – Statement of Shri Narendra Singh, Factory Manager was recorded under Section 14 of the Central Excise Act, 1994 in which he admitted the above shortage of 768 Nos. weighing 29.500 MT in the finished good - Appellants challenging the Order in Appeal on the ground that shortage was based on eye estimation and there was not physical verification – Held that:- Numbers are mentioned in the Annexure to Panchnama and therefore it is wrong to say that shortage is based on eye estimation. Moreover Shri Narendra Singh Factory Manager had admitted the shortage in the pipes as in his the statement - Shortage of the goods in the factory which is no explained by the factory manager - Concluded that goods were removed without payment of Central Excise duty – Decided against the Assessee.

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• 2013 (8) TMI 313
  

  Cenvat credit - Welding Electrodes - Commissioner disallowed cenvat credit - Held that:- Welding Electrodes used for repair and maintenance of plant and machinery are eligible for cenvat credit - Following decision of AMBUJA CEMENTS EASTERN LTD. Versus COMMISSIONER OF C. EX., RAIPUR [2010 (4) TMI 429 - CHHAITISGARH HIGH COURT] and UNION OF INDIA Versus HINDUSTAN ZINC LTD. [2006 (5) TMI 44 - HIGH COURT RAJASTHAN] - Decided in favour of assessee.

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• 2013 (8) TMI 312
  

  Waiver of pre-deposit – Period of limitation – Held that:- Credit was availed for the year 2004 and the show cause notice was issued in 2010, i.e. after five years - the applicant, has a strong case on the ground of limitation – Waiver of pre-deposit allowed – Decided in favor of Assessee.

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• 2013 (8) TMI 311
  

  Waiver of pre-deposit – Held that:- Applicant was availing the credit in respect of capital goods, without mentioning items in the monthly returns. In view of the facts and circumstances of the case, the applicant has not made out a case for total waiver of duty. The applicant is directed to deposit an amount of Rs.4 lakhs (Rupees Four lakhs only) within a period of six weeks.

  Cenvat credit in respect of S.S. sheets, Plates, Joists, Channels, Coils, M.S. Angles, H.R. Coils, M.S. Plates, Flanges etc - Items are used in fabrication of storage tank and also in respect of supporting structure and platforms – Held that:- The use of individual items in the manufacture of capital goods will be gone into detail at the time of regular hearing.

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