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Central Excise - Case Laws
Showing 21 to 40 of 225 Records
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2013 (8) TMI 899
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... ... ..... e appellant whereas the remaining duty amount can be adjusted from the Cenvat Credit Account. The order passed by this Court on 23.01.2013 does not preclude the appellant to seek adjustment of the amount of which benefit can be taken by the appellant. Therefore, we dispose of the present application with liberty to seek adjustment of any duty amount along with interest payable to it in accordance with law. CM disposed of.
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2013 (8) TMI 898
Waiver of pre deposit - Non complaince with pre deposit order - whether in view of non-compliance of the order of pre-deposit, the Tribunal could have dismissed the appeals itself.
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2013 (8) TMI 896
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... ... ..... 2 with the jurisdictional Asstt./Dy. Commissioner for allotment of STC code number and only after allotment of STC number, the appellant could file the refund claim in prescribed Form A-I. In this case, the appellant, admittedly, neither filed Form A-2 nor has he been allotted STC code number, which, in my view, is mandatory before filing the refund claim. In view of this, I hold that the refund claim has been correctly rejected. Though at the stage of original adjudication proceedings, the show cause notice was not issued and hearing was not granted, in my view since the appellant’s unit was not eligible to apply for refund claim without filing declaration in form A-2, non-issue of show cause notice and non-grant of personal hearing does not vitiate the proceedings before the Adjudicating Authority. In any case, the appellant have been heard by the Commissioner (Appeals). In view of the above, I do not find any infirmity in the impugned order. The appeal is dismissed.
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2013 (8) TMI 891
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... ... ..... nsel who appeared requested for adjournment on behalf of the advocate on record. However, without granting the adjournment as prayed on behalf of the petitioner, the CESTAT proceeded further and passed the impugned order on merits. Thus, it is apparent that the impugned order came to be passed without hearing the petitioner. Having regard to the nature of the controversy involved and moreover heavy amounts were directed to be remitted as pre-deposit, in our considered opinion it would be appropriate to provide an opportunity of personal hearing to the petitioner. 4. Accordingly, the impugned order is hereby set aside and the Writ Petition is disposed of with a direction that a fresh order shall be passed by the CESTAT after giving an opportunity of being heard to the petitioner. 5. The Writ Petition is accordingly disposed of at the stage of admission. No costs. 6. Consequently, Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.
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2013 (8) TMI 889
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... ... ..... mukh Iron Ore Co., cited supra, also held that in cases involving Central PSUs, where the CoD had declined permission prior to 17-2-2011 when the Apex Court pronounced its judgment in the case of Electronics Corporation of India Ltd., either party cannot pursue the appeals and prior to 17-2-2011 such appellants are bound to obtain clearance from the CoD as per the judgment recalled by the Electronics Corporation of India Ltd. judgment. 4.4 As regards the reliance placed by the appellant on the Calcutta High Court decision in the case of Steel Authority of India Ltd., the facts of the case did not deal with the situation where the application to the CoD had already been rejected. It dealt with a situation where the CoD clearance was not produced. Therefore, the facts are different and distinguishable. 5. In view of the above, we do not find any merit in the application for restoration of appeal. Accordingly the same is dismissed. (Operative part pronounced in Court)
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2013 (8) TMI 888
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... ... ..... .T. 6 (S.C.). 7. On a perusal of the above judgment, we find that even in the above case before the Supreme Court which was rendered on 27th February, 2002, the assessee was given a notice by the Authorities while withdrawing the exemption and demanding excise duty. 8. Though various grounds are raised in the petition to assail the impugned order on merits, it is not necessary to refer to and/or examine the grounds. The petition deserves to be allowed on the ground that the impugned order is passed without giving any show cause notice or opportunity of hearing to the petitioner. 9. Hence without going into the merits of controversies between the parties, we allow the writ petition and set aside the impugned order dated 1st May, 2013. It would be open to the Authorities to issue show cause notice to the petitioner and thereafter take decision about availability of Notification No. 167/71-C.E., dated 11th September, 1971 to the petitioner in accordance with law.
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2013 (8) TMI 880
Recall of order - Constitutional validity of Rule 5 of the Hot-Rolling Steel Mills Annual Capacity Determination Rules, 1997 - Held that:- In terms of order in Devta Steel Rolling Mills Versus Com. of central Excise, Chandigarh [2015 (7) TMI 135 - SUPREME COURT], previous order in assessee's case [2015 (7) TMI 314 - SUPREME COURT] is recalled - Decided against assessee.
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2013 (8) TMI 878
Validity of Tribunal's order - Whether the Tribunal is justified to reverse the findings of lower authorities regarding imposition of penalty on respondent(second-stage dealer) for passing Cenvat credit on the basis of invoices issued by first-stage dealer when the first stage dealer who supplied the goods to second-stage dealer himself admitted that he has done the paper transactions only - Held that:- Absence of enquiry against the respondent or further verification of statement made by Shri Sachin Aggarvanshi, the respondent has been wrongly penalised. The Tribunal has also held that the revenue did not conduct any further enquiry from any transporter or actual manufacturer of goods to verify whether goods were not received by the respondent or that Shri Sachin Aggarvanshi’s statement applies to the respondent’s goods. This apart, the learned Tribunal has also held that the respondent was not associated with the enquiry conducted against Shri Sachin Aggarvanshi. - findings recorded by the Tribunal do not suffer from any error of fact, jurisdiction or of law that would invite interference. The revenue was required to hold an independent enquiry against the respondent and only, thereafter, could an order be passed imposing penalty. The fundamental errors pointed out by the Tribunal are sufficient to hold against the revenue - Decided against Revenue.
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2013 (8) TMI 877
Transfer of unutilized Cenvat credit - Demerger of companies - Held that:- If the factory is transferred on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of the factory with the specific provision for transfer of liabilities of such factory, then, the transferor will be allowed to transfer the Cenvat credit lying unutilized to the transferee company. - In the present case the factory has been transferred to appellant and if the factory is transferred on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of the factory with the specific provision for transfer of liabilities of such factory, then, the transferor will be allowed to transfer the Cenvat credit lying unutilized to the transferee company. there is a change in ownership and the appellant has taken over the liabilities of the transferor. From a plain reading of the provisions of the Cenvat Credit Rules, it is absolutely clear that the appellant is rightly entitled for the transfer of Cenvat credit as held by both the adjudicating and appellate authorities. - Tribunal held that the transferor can transfer the credit lying unutilized in its books of accounts to the transferee company on account of change in ownership of the factory. Therefore, we do not find any infirmity in the order passed by the lower authorities. - Decided against Revenue.
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2013 (8) TMI 874
Denial of CENVAT Credit - whether the appellant are eligible for Cenvat credit of Central Excise duty paid on the steel balls & cylpebs used in grinding mill for grinding clinkers into cement and rods & hammer used in Hammer Mills - Held that:- As regards the grinding media balls and cylpebs, there is no dispute that the same are used as grinding media in grinding mill for grinding cement clincker into cement. In terms of the Board’s Circular dated 1-4-2010, the grinding media balls are to be considered as components of the capital goods for the purpose of Cenvat credit. In view of this, I hold that the grinding media balls and cylpebs, etc. used as grinding media in the grinding mills are capital goods and would be eligible for Cenvat credit.
As regards the rods and hammers, since undisputedly, the same are used in the hammer mills, where the limestones are crushed, the same have to be considered as part of the hammer mill and would be covered by the definition of capital goods and hence, would be eligible for Cenvat credit. - Decided in favour of assessee.
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2013 (8) TMI 873
Condonation of delay - Delay of 128 days - Review of order - Change of heart - Held that:- As per Sec. 35B(5) of the Central Excise Act, 1944 CESTAT can condone the delay in admitting an appeal after the relevant period specified in sub-section (3) or (4) of Sec. 35B, if it is satisfied that there was a sufficient cause for not presenting the appeal within prescribed period. - appellant has not shown a sufficient cause for condonation of delay in filing the appeal. It has also been rightly observed by Hon’ble Gujarat High Court as per order dated 20-3-2013 in the present proceedings that the legal issues raised by the Revenue alone cannot form the sole basis for condonation of delay in the absence of any explanation whatsoever. A change in the opinion by the same Committee of Commissioners, on reconsideration, cannot be considered as a reasonable cause for seeking condonation, when such a reconsideration itself is not legally correct. Accordingly we find no reason to condone the delay of 128 days in filing the appeal - Condonation denied.
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2013 (8) TMI 871
Clandestine removal of goods - Suppression of facts - Penalty u/s 11AC - Penalty on Directors of Company - Held that:- it is evident that the appellant had suppressed production of the plastic pipes manufactured by the appellant in their statutory accounts and had cleared these goods without payment of Central Excise duty and without issue of invoices. - the goods appearing in the private records were manufactured by the appellant-firm but were not accounted for in the RG-1 register - This statement of the sole distributor also corroborates the clandestine removal of the goods by the appellant-firm. Therefore, the argument of the appellant that there is no evidence to corroborate the suppression of production and clandestine removal of goods is not correct and has to be rejected - appellant has admitted clearly, suppression of production and clearance of excisable goods without payment of duty. Therefore, the onus shifts to the appellant to prove the contrary which the appellant has not discharged at all. The private records maintained by the appellant giving details of production and clearance of the goods is a corroborative evidence and entries made therein have been corroborated by the statements of Shri Vijay Makhija, Managing Director of the appellant-firm and by the statement of Shri Anil Budhawani, partner of the sole distributor-firm - finding of the adjudicating authority with respect to clandestine production and removal of goods cannot be faulted at all. Accordingly, we uphold the demand of duty of ₹ 18,57,661/- along with interest thereon. Since the appellant has resorted to suppression of facts, penalty under Section 11AC is clearly attracted. - Decided against assessee.
Penalty on Shri Vijay Makhija, Managing Director of the appellant-firm is reduced from ₹ 5 lakhs to ₹ 2 lakhs - However, Penalties on Smt. Hema Makhija and Shri Arjun Mulchandani are set aside - Decided partly in favour of appellant.
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2013 (8) TMI 847
Penalty u/s 11AC - Held that:- in case of confirmation of demand of duty on the allegations of suppression, etc, the authorities have no discretion to impose less penalty and the penalty is required to be enhanced to 100% of the duty confirmed - original adjudicating authority had imposed penalty of Rs.96,211/- on Unit No. II, which is almost 25% of the duty confirmed against the assessee - Decided in favour of Revenue.
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2013 (8) TMI 846
Valuation - Inclusion of Installation and commissioning charges - Held that:- contract entered between the appellant and M/s BSNL is relatable to two separate activities one for supply of the goods and the other for installation. The activity of installation and commissioning could have been got done by M/s BSNL from an independent third person. Merely because the said activity is being undertaken by the supplier of the goods does not mean that the consideration for the same has to be added in the assessable value of the goods. In any case, the appellant has already discharged their service tax liability in respect of the said consideration, in which case the same cannot be taxed to Central Excise duty - Following decision of Ericsson India Pvt. Ltd. vs. CCE, Pondicherry [2007 (2) TMI 26 - CESTAT, CHENNAI] - Decided in favour of assessee.
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2013 (8) TMI 845
Cenvat Credit - Authorities denied benefit in respect of MS fabricated structure - Held that:- such credit availed by the appellant was being reflected in their monthly returns as there is no allegation to the contrary. As such, where the demand for the period February 2001 to April 2001 having been raised by show cause notice dated 26/6/02 is barred by limitation - Following decision of Vandana Global Ltd. vs. CCE, Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - Decided in favour of assessee.
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2013 (8) TMI 844
Activity Manufacture or Not - Assesse was importing Chassis from their Principals in Japan - The Assesse was taking the credit of CVD and SAD - A Show Cause Notice was issued to the assesse for denial of the Cenvat Credit availed and utilized by them during the period - revenue contended that there was no factory at the premises and it was only a parking slot/warehouse/godown - Whether the activity was being carried out by the assesse will amount to manufacture - Held that:- Activities undertaken by the assesse will not amount to manufacture - assesse cannot be considered as a manufacturer and therefore not eligible to take the Cenvat Credit under Rule 3 of Cenvat Credit Rules 2004 - The activities undertaken by the assesse alone will not constitute manufacturing the vehicle, the final product - These activities were very minor in nature and would not entitle the assesses to be considered as manufacturer of motor vehicle - These activities may be needed to satisfy the requirements of Central Motor Vehicles Act or some other law but that will not amount to manufacture for excise purpose.
Activities carried out by them was inspection of the same and fixing of some parts, if required and thereafter sending it to the job worker who undertakes the body building activities - The goods received form job workers were vehicles - Again inspection was carried out by the assesse and certain parts like kits etc. were fixed in order to comply with the Central Motor Vehicles Acts and Rules thereof.
CENVAT credit - Interest and Penalty – Whether Cenvat Credit can be demanded when they have utilized the same for payment of duty on final products – Held that:-There was no dispute that the duty on the final product had been paid by the assesses by utilizing the Cenvat Credit being demanded and department had not disputed payment of duty on vehicles - ASHOK ENTERPRISES Versus COMMISSIONER OF CENTRAL EXCISE, CHENNAI [2007 (11) TMI 67 - CESTAT, CHENNAI] - The Cenvat Credit availed cannot be demanded in spite of the fact that the activity undertaken by the appellant does not amount to manufacture – appeal allowed.
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2013 (8) TMI 843
Reversal of Cenvat Credit in case inputs are destroyed in an accident - Appellant is engaged in the manufacture of excisable goods falling under Chapter 29 and 30 of the first schedule to the Central Excise Tariff Act, 1985 - On 7.5.07, a fire broke out in the bulk drug plant of the appellant which resulted in the destruction of the stock lying therein, to the tune of around Rs.25 crores. The fact of fire incident was immediately brought to the notice of their jurisdictional Central Excise authorities by way of writing a letter to them on 8.5.07 - On scrutiny of the fire insurance claim filed by the appellant with M/so. United India Insurance Company, it was found that the total stock of loss was shown as Rs.25,11,70,548/- - The audit entertained a view that all the goods destroyed in the fire as such and not were inputs issued for the work in progress, the appellants are required to reverse the credit – Held that:- Relying upon the decisions in the various cases s.a. Commissioner of Central Excise and Customs, Pune vs. Spectra Speciality [2008 (5) TMI 209 - CESTAT MUMBAI ] as upheld by the Hon’ble Supreme Court ; Commissioner of Central Excise Chennai vs. Indchem Electronics [ 2002(9)TMI 195 – CEGAT, CHENNAI, it has been held that where inputs were actually issued and thereafter destroyed in fire accident, there is no requirement of reversal of Cenvat credit.
The factual position, as disputed by the Revenue, is required to be ascertained - The Revenue is contending that it was actually the inputs which were destroyed, the appellants stand is that it was the work-in-progress, which was destroyed in the fire - Appellant, right from their first letter onwards, in all their communications addressed to the Revenue, have repeatedly submitted that the fire broke out in the bulk drug unit of the appellant, which unit is located in the manufacturing section. Inasmuch as the bulk drug manufacturing section of the plant is away from the stores, where the inputs were stored, the said fact itself establishes that the inputs had been issued for manufacturing and were work in progress - Manufacturing unit, where drugs are being manufactured is separate from the stores, formulation unit, solvent storage etc. There is a dividing road between the bulk drug manufacturing section and the store meant for storing inputs which is around 20 feet wide road. If that be so, it has to be concluded that goods which are destroyed in the fire in the bulk drug manufacturing section were the goods which have already left the inputs store and as such, same cannot be considered to be inputs destroyed as such, so as to call for reversal of Cenvat credit – Appeal allowed – Decided in favor of Assessee.
Limitation – Held that:- Demand having been raised after a period of around two years from the date of incidence of fire and consequent destruction of goods is hopelessly barred by limitation. Revenue is not disputing that the fact of fire was intimated to them on the next date. The Revenue s stand that inspite of repeated reminders, the appellant did not provide the detailed list of the destroyed goods and as such, invocation of extended period is justified cannot be appreciated. The jurisdictional Central Excise authorities are expected to visit the factory of the assessee within a period of 24 hours in case of any report of fire incident and are required to assess the losses. Though we note that the appellant had been responding to all the communications of the Revenue, but presuming that they were not, the Revenue was within their right and power to issue summons to the appellants to call for such details or to visit their factory to find the exact losses – Show-cause barred by limitation – Decided in favor of Assessee.
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2013 (8) TMI 842
SSI Exemption - Use of brand name of others -manufacture of threaded screw made of iron and steel, commonly known as wood screws falling under Heading 7318.10 of the Schedule to the Central Excise Tariff Act, 1985 - Held that:- There was no positive and tangible evidence to hold against the appellant - The entire case of the Revenue was based upon the surmises and conjectures - And it was not justifiable to confirm the demand or to impose penalty upon the appellant on the basis of assumption and presumption - Merely because the full address of the buyers in respect of cash sales were not given in the invoices, thus not making it possible for Revenue to conduct inquiries at their end, by itself cannot be held to be a strong evidence to hold that all those clearances were with the brand name of ‘needle fold’.
Prima facie a credit invoice to a person who cannot be located or to a person who denied receipt of the goods was more incriminating than goods sold on cash basis where the address of the buyer was found to be wrong - It was also not clear from which entries from which annexures were picked up to arrive at the value on which demand was upheld – Decided in favour of Assessee.
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2013 (8) TMI 841
Entitlement for MODVAT Credit - Appellant was manufacturer of Diodes and Transistors classifiable under sub-heading 8541.00 of Central Excise Tariff Act, 1985 – The Department was of the view that 90,000 pieces of “Diodes Cell Type un-marked” (imported) involving Cenvat credit were finished product and not entitled to avail modvat credit in respect of those pieces - Held that:- Cenvat credit was rightly availed by the respondent - The jurisdictional adjudicating authority had looked into the process the imported semi-finished diodes were subjected to make them marketable to conclude that the process amounts to manufacture of the finished product and it also amounts to value addition to the semi-finished diodes - There were no contravention of provisions of Rules 51A, 57G, 57F(1), 173(1) and 173G of Central Excise Rules, 1944.
The diodes seized by the department were per se not marketable and respondent after processing those semi-finished diodes used to clear the same on payment of excise duty - it was evident that the adjudicating authority had looked into the process to which imported semi-finished diodes were subjected to before marketing the same came to the conclusion that the aforesaid process amount to manufacture as defined under Section 2(f) of Central Excise Act, 1944 - Only fact which was established from the test report was that diode action was observed in the sample at the time of testing - The report does not answer the question as to whether or not the sample could have been used as diodes in electronic equipment nor it answer that the assessee was to required the subject ‘imported semi-finished diodes’ to further process to convert into the value added finished product - the test report in the absence of any other evidence was of no avail to the Department as such order cannot be sustained – Decided against Revenue.
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2013 (8) TMI 840
CENVAT credit on Capital Goods taken on lease from Corporate Ispat Alloys Ltd. (CIAL) - Rule 4(3) of the Cenvat Credit Rules, 2004 - Stay - Held that:- Prima facie the availment of capital goods Cenvat credit in the case by the appellant was not correct, as the words "financing company" in Rule 4(3) of Cenvat Credit Rules cannot be read "as any person".
Bar of Limitation – Held that:- Prima facie there was no intimation in this regard to the department - In any case, the point of fact can be examined in detail only at the time of final hearing - while AIL and CIAL had intimated the leasing of their plant and machinery to the appellant and also the payment of amount equal to the Cenvat credit availed by issue of invoices, it was not known as to whether the availment of Cenvat credit by the appellant on the basis of invoices issued by AIL and CIAL was specifically intimated to the department.
Appellant directed to to deposit an amount of Rs.6 Crores - stay granted partly.
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