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2015 (5) TMI 912 - PUNJAB & HARYANA HIGH COURT

Jai Pal Khanna and another Versus Deputy Commissioner, Central Excise, Department of Revenue, Ministry of Finance, Government of India, Amritsar

Dated: 25/02/2015

Criminal Misc. No.M-31420 of 2009

Request for quashing of criminal complaint - Carrying on the business without obtaining central excise registration - Clandestine removal of goods - Held that:- unless there is an actual evasion of excise duty, there is no offence attracting the aforesaid provisions made out against any person and as such, obviously not by the petitioners also as per the law laid down, in the Simplex-II case [2005 (3) TMI 117 - SUPREME COURT OF INDIA] - Of course, if registration is compulsory under any Rule, not brought to the notice of this Court even where the goods manufactured/produced/dealt in by a person are not subject to excise duty, then, at best, non-registration can be termed an irregularity, which fact has also not been pointed out by the learned counsel for the respondent, who was assisted by the 2nd respondent herself, as she had been summoned to Court, vide order dated 02.05.2014. - Obviously, if at all there is such an irregularity, and there is any fine imponable for the same, the respondents would be at liberty to impose the same, after following due procedure.

Revenue could not refute that with the basis for the criminal complaint having been actually removed, with the Apex Court having held that the goods manufactured by the firm of the petitioners are not exigible to Central Excise, the criminal complaint would no longer be maintainable. - complaint filed by the respondent before the learned Chief Judicial Magistrate, Amritsar, is quashed, along with all proceedings arising therefrom, including the orders of the learned trial Court, impugned in the present petition - Decided in favour of appellant.


2015 (5) TMI 911 - PUNJAB & HARYANA HIGH COURT

M/s K.K. Kohli & Brothers P Ltd., Faridabad Versus Union of India and others

Dated: 15/12/2014

Central Excise Appeal No.98 of 2013

Debarment orders - Utilization of wrongful credit - Imposition of penalty - Held that:- Appellant did not dispute before the CESTAT that their were defaults in payment of duty in respect of several fortnights and also did not dispute that they utilised credit in violation of debarment orders issued under the Central Excise Rules, namely, orders dated 31.01.2002 and 24.09.2002. Despite these admitted infractions and consequent violation of the rules, the Tribunal was charitable enough to allow credit to be adjusted towards duty at the time of clearance of final products on the premise that it would otherwise lead to the payment of double duty by the appellant. - Tribunal has even otherwise reduced the penalty to only ₹ 1 lac - Decided against assessee.


2015 (5) TMI 881 - PUNJAB & HARYANA HIGH COURT

Riba Textiles Limited Versus The Customs, Excise & Service Tax Appellate Tribunal, New Delhi and another

Dated: 21/04/2015

CEA No.62 of 2013 (O&M), CEA No.63 of 2013 (O&M), CEA No.64 of 2013 (O&M)

Denial of Exemption claim - 100% EOU - additional duty of excise under the Finance Act, 1999 - Scope of Notification No.22/2003 - Held that:- In the notification under section 5-A(1) of the Central Excise Act, 1944, the Government exempted the duty of excise leviable thereon under the provisions specified therein, namely, Central Excise Act, 1944, Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the Additional Duties of Excise (Textile and Textile Articles) Act, 1978. The intention was clearly to limit the exemption only in respect of the enactments specified in the notification. The Finance Act of 1999 was not one of them. - A plain reading of the notification itself makes it clear that the exemption was not to operate in respect of the additional excise duty levied under the Finance Act, 1999 - The Finance Act levying the additional excise duty was enacted only in the year 1999, i.e., after first notification of the year 1994. - Decided against assessee.


2015 (5) TMI 837 - GUJARAT HIGH COURT

Premier Polyspin Pvt Ltd & 1 Versus Union of India & 2

Dated: 04/05/2015

Special Civil Application No. 4663 of 2015

Stay application - Mandatory pre deposit - Section 35F - Held that:- During the pendency of proceedings or after the order passed by the adjudicating authority, if the law is amended and a condition of pre-deposit is also amended in Section 35F of the Central Excise Act, the appellant would have to comply with the provisions as the amended provisions would apply to all the appeals which are filed after coming into force of the amended Act. - appeal of the appellant before the CESTAT would not be maintainable in absence of deposit of an amount equivalent to 7.5% of the confirmed amount of duty liability. The other aspect of the matter is that if the argument of the learned counsel for the petitioner is accepted then he is required to pre-deposit 100% of the excise duty levied on him as he has not filed any waiver application under the old provision before the Tribunal exempting him from making any pre-deposit. The Legislature has granted benefit to the assessees by fixing pre-deposit equivalent to 7.5% or 10% of the confirmed amount of duty liability as per the provisions of Section 35F of the Central Excise Act, 1944. Therefore, we do not find any illegality in the impugned order passed by the Tribunal. - Decided against Assessee.


2015 (5) TMI 772 - CESTAT BENGLALORE

R.K.S. Motor (P.) Ltd. Versus Commissioner of Central Excise, Customs & Service Tax, Hyderabad-II

Dated: 23/09/2014

Appeal No. ST/26881/2013-DB , Application No. ST/Stay/27213/2013

Condonation of delay - Delay of 29 days - Improper advice of legal counsel - Held that:- for the lapse of the advocate or because of the fact that counsel did not advise them suitably, the appellant should not suffer. Therefore we set aside the decision and condone the delay in filing the appeal and remand the matter to the learned Commissioner (Appeals) for considering the appeal afresh in accordance with law. Needless to say principles of natural justice will be observed while considering the matter afresh. - Delay condoned.


2015 (5) TMI 771 - CESTAT BANGALORE

Sagar Cements Ltd Versus Commissioner of Central Excise, Customs And Service Tax, Hyderabad

Dated: 18/09/2014

E/Stay/26008/2013 in E/25758/2013-DB

Waiver of pre deposit - Denial of CENVAT Credit - GTA Service - claim of the appellants is that the CENVAT Credit is taken in respect of cement wherein the appellants bore the freight and supplied the goods at the premises of customers on FOR destination basis - Held that:- Decision of the Hon ble Supreme Court [2002 (10) TMI 96 - SUPREME COURT OF INDIA] may not be applicable to the facts of this case since in that case, factory gate was admittedly the place of removal and there was no dispute about the place of removal. In the case of Madras Cements Ltd., the decision was rendered prior to the period 01/04/2008 and further it was held that prior to 01/04/2008 only credit was admissible. We are considering the period subsequent to 01/04/2008. However, in cases like this, it has to be taken note that the decisions have to be rendered on the basis of fact. On going through the invoices, we find that as claimed by the learned counsel, freight has been paid by them and further the sale is on MRP basis and duty has been arrived on the basis of MRP - appellant has made out a prima facie case in their favour. Accordingly, the requirement of predeposit is waived and stay against recovery is granted during the pendency of appeal. - Stay granted.


2015 (5) TMI 770 - CESTAT CHENNAI

M/s. Tansi Foundry Versus Commissioner of Central Excise, Salem

Dated: 16/09/2014

Appeal No. E/890/2003

Denial of SSI exemption - Notification No. 1/93-CE dated 28.02.1993 - appellants had not opted the benefit of exemption in respect of the goods under the sub-heading 7325.10 and paid full duty - Held that:- The appellant contended that they were not aware that the goods under heading No. 7325.10 was within the purview of the exemption Notification No. 1/93-CE w.e.f. 01.03.94. We find that there is no dispute that after amendment of the SSI exemption Notification No. 1/93 as amended by Notification No. 59/94, the simultaneous availment of modvat and SSI exemption by the manufacturer on different goods is not permissible. - Following decisions of CCE, Raipur Vs. National Cement Corporation [2013 (3) TMI 524 - CHHATTISGARH HIGH COURT], CCE, Ahmedabad Vs. Ramesh Food Products [2004 (11) TMI 103 - SUPREME COURT OF INDIA] and Kamani Foods Vs. Collector of CE, Patna [1994 (1) TMI 109 - CEGAT, NEW DELHI] - there is no merit in the appeal filed by the appellants. Accordingly, No reason to interfere with the impugned order - Decided against assessee.


2015 (5) TMI 769 - CESTAT CHENNAI

M/s. CARESS INDUSTRIES PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, SALEM

Dated: 11/02/2015

E/41190/2014

Waiver of pre deposit - Classification of goods - Held that:- Prima facie, it appears that the contents of the goods do not substantially contain nitrogen and phosphates. To call the goods as fertilizers, these ingredients substantially dominate. Therefore, appellant is directed to deposit ₹ 10,00,000 - Partial stay granted.


2015 (5) TMI 738 - CESTAT CHENNAI

Commissioner of Central Excise, Chennai -II Versus M/s. Rawf Re-Rollers

Dated: 25/09/2014

E/509, 510 & 512/2002

Clandestine removal of goods - evasion of duty - Held that:- department had demanded excise duty on MS. Rounds, alleging that the respondents have clandestinely removed the goods by relying on the oral statements and without any corroborative evidence either from the respondents premises or from the Customer, Trader's documents etc. Therefore, we find that the Commissioner (Appeals) has discussed issues at length and has given a detailed order while setting aside the order of the adjudicating authority. By respectfully following the Hon'ble High Court judgment [2008 (9) TMI 603 - PATNA HIGH COURT ], we hold that there is no infirmity in the impugned order. - Decided against Revenue.


2015 (5) TMI 737 - CESTAT BANGALORE

Ultratech Cement Ltd Versus Commissioner of Central Excise, Service Tax And Customs, Bangalore-II

Dated: 20/11/2014

E/Stay/26173/2013, E/25876/2013-DB

Waiver of pre deposit - Denial of CENVAT Credit - Credit availed in respect of Storage Sylos - Held that:- appellant may have a case for the benefit of CENVAT credit in respect of steel and cement in view of the decision of the Hon'ble High Court of Karnataka referred to above. As regards the Packing Plant, the appellants have already deposited the entire amount of CENVAT Credit with interest. Treating this as sufficient, the requirement of predeposit of balance dues is waived and stay against recovery is granted during the pendency of appeal. - Stay granted.


2015 (5) TMI 736 - CESTAT BANGALORE

Commissioner of Central Excise, Bangalore-I Versus M/s. Wipro Gemedicals Systems Pvt Ltd

Dated: 14/11/2014

E/CROSS/46/2008, E/499/2007-SM

Duty demand u/s 11D - Whether provisions of Section 11D of Central Excise Act, 1944 would apply to the impugned goods, which were cleared at nil rate of duty after the respondent-assessee reversed 8% of total price of such goods cleared during the period from 1.3.2003 to 31.5.2004 - Held that:- However, after decision of Larger Bench of the Tribunal in the case of Unison Metals Ltd. (2006 (10) TMI 171 - CESTAT, NEW DELHI), the Board has examined the circular and clarified that in the case of payment made under erstwhile Rule 57CC(1) corresponding to Rule 6(3) of Cenvat Credit Rules, 2004, Section 11D of the Act is not applicable since the amount of 8% or 10% has already been paid to the Revenue and no amount is retained by the assessee. It was also stated by the Board that this decision has been accepted. At this stage, learned A.R. submitted that the customers might have taken credit of duty paid. However, there is no evidence to show such is the case and this is not a ground also and this cannot be a ground even after the Board's Circular. In view of above, appeal filed by the Revenue is devoid of merits and is rejected - Decided against Revenue.


2015 (5) TMI 735 - CESTAT BANGALORE

Sri Chakra Cements Ltd Versus Commissioner of Customs, Central Excise And Service Tax, Guntur

Dated: 07/11/2014

E/Stay/22535/2014, E/22263/2014-SM

Eligibility of the appellant for CENVAT credit on MS Angles, Beams, Sheets, etc. - Held that:- Whether the items used for maintenance and repair credit can be given or not is highly debatable, requires detail consideration of the actual usage. At this stage I consider that appellant need not deposit any amount to hear the appeal. Accordingly the requirement of pre-deposit is waived and stay against recovery is granted during the pendency of appeal. - Stay granted.


2015 (5) TMI 734 - CESTAT NEW DELHI

M/s Monu Steels Ltd, M/s Nibi Steels Ltd, Lal Bahadur Yadav Versus Commissioner of Central Excise And Service Tax, Raipur

Dated: 29/09/2014

E/Stay/58011, 58498, 58499/2013, E/57418, 57893, 57894/2013

Clandestine removal of goods - Clearance of goods without payment of excise duty and invoices - Held that:- Similar issue has come up in several other cases of similar nature like in the case of RA Castings Pvt. Ltd. Vs. CCE, Meerut-I [2008 (6) TMI 197 - CESTAT NEW DELHI] and [2010 (9) TMI 669 - ALLAHABAD HIGH COURT] and [2011 (1) TMI 1302 - Supreme Court of India] and in the case of Bhavani Shankar Castings Ltd. Vs. CCE Jallandhar [2009 (2) TMI 632 - CESTAT, NEW DELHI] [2009 (11) TMI 676 - KARNATAKA HIGH COURT] where it has been held the demand can not be sustained merely on the basis of allegation of high consumption of electricity in the absence of any other evidence to substantiate unaccounted production and clandestine removal. The ratio of these judgments are prima facie applicable to the present case. It is however seen that there is this evidence in the form diary entries referred to above atleast to the extent of 395 MT of steel having been removed clandestinely. The duty on this quantity of steel comes to about ₹ 11 lacs. In the case on M/s. Monu Steels, they have in effect admitted that they were indulging in facilitating clandestine clearances from M/s. Nibi Steels and also admitted that 395 MT of MS Ingots were received from M/s. Nibi Steels without invoices. - Partial stay granted.


2015 (5) TMI 701 - SUPREME COURT

Commnr. of Central Excise, Jaipur Versus M/s. Dabur India Ltd.

Dated: 12/05/2015

Civil Appeal No. 4483 of 2005

Classification - Caldhan suspension, Livfit Vet and Ayucal premix - Animal feed supplements or Veterinary medicament - Classification under sub heading no.2302.00 or sub heading no.3003.39 - Held that:- There are several reasons given by the Tribunal in classifying these products as animal feed supplements. One important reason in support which is noted by the Tribunal is that the Department's own laboratory, namely, CRCL has opined that livfit Vet is not described in authoritative books for Aurvedic medicines and it can be considered animal feed supplement. Insofar as Ayucal premix is concerned, here again, CRCL has opined that it should be animal feed supplement. Thus, insofar as these two products are concerned, Government's own laboratory has classified them as animal feed supplement and not veterinary medicament.

Insofar as Caldhan suspension is concerned, the CRCL could not give any opinion either way. Because of this reason the Tribunal went into the certificates which were produced by the assessee from other experts. These certificates demonstrate that none of these products are medicament. No doubt, Indian Veterinary Research Institute (IVRI) has opined otherwise. However, as against that there is an opinion of Dr. Mahesh Kumar, Associate Professor of G.B.Pant University of Agriculture and Technology, stating that Caldhan can be recognized as a tonic or food supplement only which provides low levels of calcium or phosphate to the animals and thereby helps in maintaining tenacity of muscles. It is also stated by him that Caldhan cannot be used for therapy of milk fever as it provides not only 325 mg calcium per 20 ml whereas for the therapeutic management of milk fever, a minimum of 100-150 g calcium should be given intravenously as 20-30% solution. Pertinently even on the printed labels for this product, it mentioned "not for medicinal use". Otherwise also we find that insofar as this product, namely, Caldhan suspension is concerned, the Revenue effect is only ₹ 16,000/- for the period in question and statement was made at the Bar by Mr. Lakshmikumar, Advocate, that the assessee has stopped the production of this product. - Decided against the revenue.


2015 (5) TMI 700 - SUPREME COURT

Commissioner of Central Excise Versus M/s. Amritlal Chemaux Ltd.

Dated: 05/05/2015

Civil Appeal No. 1092 of 2005, Civil Appeal Nos.9784 -9785 of 2013, Civil Appeal Nos.2088 -2089 of 2014

Manufacturing process or not - Repacking and / or labelling - Products purchased in bulk quantities in bulk packing & thereafter process is undertaken - dyes & dye bases, napthols & fast bases, and chrome pigments - Held that:- It is clear from the plain language of the Chapter Notes which use both the expression 'or' as well as 'and' at different places. Thus, by using the two expressions, the intention of the legislature is manifest that insofar as the process of label or relabeling of containers is concerned, it would amount to manufacture only if the other condition, viz., repacking from bulk to retail pack is also satisfied. The aforesaid view gains credence from other fact, i.e., where the second process is treated as manufacture, viz., "adoption of any other treatment to render the product marketable to the consumer", the expression 'any other treatment' and that too, with intention to render it marketable clearly shows that insofar first part is concerned, both the conditions have to be satisfied.

Insofar as the napthols & fast bases is concerned, even from the order of the Commissioner, it becomes clear that though there was repacking and even relabeling, the repacking of bulk was not into retail packing as the goods after repacking were supplied to industrial consumers on wholesale basis. It is specifically stated so by the assessee which fact is not denied by the Commissioner.Therefore, both the conditions mentioned in the Chapter Notes are not satisfied.Insofar as the chrome pigments are concerned, the assessee only obliterated the name which was appearing on containers and the name of the assessee along with the logo is stenciled on such container that may amount to relabeling. However, the process of repacking was not undertaken at all by the assessee. Thus, here also both the eligibility conditions which are to be fulfilled have not been satisfied. - Decided against the revenue.


2015 (5) TMI 699 - CESTAT NEW DELHI

M/s Balkrishna Industries Ltd., Shri Pawan Batra Versus Commissioner of Central Excise And Service Tax, Jaipur

Dated: 30/12/2014

E/Stay/53108, 53152/2014, 53206-53207/2014-EX (DB), Appeals Nos. E/52781, 52803 and 52846-52847/2012-EX (DB)

Waiver of pre deposit - Denial of CENVAT Credit - Inputs used for job work - Held that:- When there is no physical removal of the cenvated inputs, there is no requirement to reverse the credit under Rule 3(5) of the Cenvat Credit Rules, the appellant have strong prima facie case in their favour. In view of this, amount of ₹ 2.01 crores already paid by the appellant is, in our view, sufficient for hearing of their appeal.

As regards Shri Pawan Batra, DGM is concerned, we are of the prima facie view that in the circumstances of this case, there does not appeal to be any justification for imposition of penalty on him under Rule 26 of the Central Excise Rules, 2002. Hence, the requirement of pre-deposit of penalty by Shri Pawan Batra, DGM for hearing of their appeal is waived.

Credit had been taken by Bhiwadi Unit on the basis of the supplementary invoices issued by the Chopanki Unit while non-reversal of this credit by the Chopanki Unit was deliberate - Held that:- Following decision of Karnataka Soaps & Detergents Ltd. - [2005 (6) TMI 182 - CESTAT, BANGALORE] it is held that Rule 9(1)(b) is not-applicable in case of inter-unit transfer, the appellant have a prima facie case in their favour and as such, the requirement of pre-deposit of cenvat credit demand, interest and penalty is waived for hearing of their appeal and recovery thereof is stayed.

Credit has been taken by the Bhiwadi Unit on the basis of the certain invoices regarding use of the cenvated inputs by Chopanki unit in the job work for Bhiwandi unit which the Chopanki Unit was not required to pay any amount under Rule 3(5) - Held that:- Following decision of MDS Switchgears Ltd. [2008 (8) TMI 37 - SUPREME COURT] - Stay granted.


2015 (5) TMI 698 - CESTAT NEW DELHI

M/s Goyal Auto Products Pvt Ltd, Shri Raghubir Dayal Goyal, Shri Rahul Goyal Versus Commissioner of Central Excise, Delhi-I

Dated: 03/03/2015

Excise Appeal No. 56987-56990 of 2013-(SM)

Penalty u/s 11AC - Clandestine removal of goods - Held that:- Penalty under section 11AC of the Act is not imposable as in this case as duty demand has already been dropped by the learned Commissioner (Appeals). Further, I find that currency seized is the amount withdrawn from the bank which is not the sale proceed of the goods. Nobody will keep the amount recovered from the clandestinely removed goods in bank, therefore amount seized was not the sale proceeds of the goods which have been cleared clandestinely. In these circumstances, seizure of Indian currency is not correct. Consequently the same cannot be confiscated. In these circumstances, the confiscation of the Indian currency is set aside. Further, I find that for the goods seized at their business premises valued at ₹ 20,27,870/-, the redemption fine was imposed of only ₹ 25,000/- whereas the goods valued at ₹ 91,58,842/-, the redemption fine imposed is ₹ 300,000/- which is highly excessive - Decided partly in favour of assessee.


2015 (5) TMI 697 - CESTAT NEW DELHI

Prakash Industries Ltd Versus Commissioner of Central Excise And Service Tax, Indore

Dated: 10/02/2015

Excise Misc Application Nos.E/M/54418 & 54534/2014, Excise Appeal No. E/58737/2013-Ex[DB]

Stay application - Waiver of pre deposit - Doctrine of merger of order - Held that:- Tribunal's order [2015 (5) TMI 568 - CESTAT NEW DELHI] directing the appellant to deposit an amount of ₹ 12.00 Crores within a period of four weeks had been upheld by Hon'ble Chattisgarh High Court [2015 (5) TMI 567 - CHHATTISGARH HIGH COURT] and an SLP against the Hon'ble High Court's order had been filed. The Apex Court while dismissing the SLP [2015 (5) TMI 601 - SUPREME COURT] had directed that the amount to be deposited within a period of four weeks from the date of the order. In view of this position, we are of the view that it is the Judgement of Hon'ble Delhi High Court in the case of CCE vs. Lindt Exports reported in [2011 (9) TMI 609 - DELHI HIGH COURT ] which would be applicable and as such the Tribunal has no jurisdiction to modify its order dated 03.06.2014, which in our view, stands merged with the judgment of Hon'ble Chattisgarh High Court, Hon'ble Allahabad High Court in a recent judgement dated 12.11.2014 in case of Kissan Gramudyog Sansthan vs. CCE, Kanpur reported in [Kissan Gramudyog Sansthan] has held that once the appeal against Tribunal's stay order under Section 35F of the Central Excise Act, 1944 is dismissed by a High Court, the Tribunal's stay order mergers with the High Courts order and the Tribunal cannot modify its stay order and extend the period of pre-deposit. - Decided against assessee.


2015 (5) TMI 664 - MADRAS HIGH COURT

Carboline India Pvt. Ltd. Versus The Coimmissioner of Central Excise Chennai - II

Dated: 30/04/2015

Civil Miscellaneous Appeal No.532 of 2015 & M.P.No.1 of 2015

Waiver of pre deposit - CENVAT Credit - whether the appellant is entitled for the benefit of cenvat credit on the service tax paid by the appellant - Held that:- Following decision of ABB Limited Vs. CCE [2011 (3) TMI 248 - KARNATAKA HIGH COURT] it is held that Tribunal was not justified in ordering the pre-deposit in the manner stated in its order - Partial stay granted.


2015 (5) TMI 663 - GUJARAT HIGH COURT

Mundra Ports And Special Economic Zone Limited Versus Commissioner of Central Excise & Customs

Dated: 29/04/2015

Tax Appeal No. 15 of 2009

Denial of CENVAT Credit - cement and steel - Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in rejecting the claim of the assessee in light of the provisions of Rule 2(k) of the Cenvat Credit Rules, 2004 - Held that:- jetty was constructed and input credit was claimed on cement and steel. The definition of Rule 2(k) was applicable and Explanation 2 did not provide that cement and steel would not be eligible for input credit. - The appellant is neither having any factory nor he is manufacturer. The appellant is a service provider of port - plain reading of the definition of Rule 2(k) would demonstrate that all the goods used in relation to manufacturer of final product or for any other purpose used by a provider of taxable service for providing an output service are eligible for CENVAT credit. It is not in dispute that the appellant is a taxable service provider on port under the category of port services. Therefore, the appellant was entitled for input credit and the decision of the Division Bench of the Andhra Pradesh High Court [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT] squarely applies to the facts of the case - Decided in favour of assessee.


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