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Central Excise - Case Laws
Showing 1 to 20 of 2859 Records
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2014 (12) TMI 1406
Admissibility of appeal - utilization of CENVAT Credit - HELD THAT:- The tax appeal is admitted for consideration of following substantial question of law:
Whether Hon’ble Tribunal committed error in setting aside the demand of Central Excise duty in respect of utilization of Cenvat credit of Basic Excise duty for discharge of Education Cess payable on finished goods for the period June, 2009 to October, 2009 during which the assessee was availing the benefits of area based exemption under Notification No. 39/2001-C.E., dated 31-7-2001?
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2014 (12) TMI 1381
Valuation - demand of differential duty u/s 4A of Central Excise Act, 1944 - petition was dismissed as there is no amount which is required to be stayed as per the provisions of Section 35F of Central Excise Act, 1944 - HELD THAT:- The issue involved in this case is regarding the demand of differential Central Excise duty under the provisions of Section 4A of Central Excise Act, 1944 as it applies to the period in question.
An identical issue has been decided by this Bench in the case of M/S ACME CERAMICS AND OTHERS VERSUS CCE RAJKOT [2014 (3) TMI 164 - CESTAT AHMEDABAD] where it was held that prior to 01.03.2008, in the absence of any provisions for re-determining the RSP, in the form of prescribed rules, the Revenue authorities cannot re-determine the RSP under any of the provisions available to them. It has to be noted that there is no contrary view which has been taken by the Tribunal.
There are no reason to deviate from such a view already taken - appeal dismissed - decided against Revenue.
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2014 (12) TMI 1344
Non-appreciation of Extended period of limitation - no reasonable care taken as required under rule 7(2) of the Cenvat Credit Rules, 2002 - credit denied for inputs purchased from Itisha Aluchem Industries - demand of cenvat credit, interest and penalties - HELD THAT:- Tax Appeal is Admitted for consideration of the substantial questions of law.
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2014 (12) TMI 1329
Legality of the impugned N/N. 17/2008 dated 27.3.2008 and N/N. 31/2008 dated 10.6.2008 - benefit of complete exemption of Central Excise Duty for a period of 10 years from the date of commercial production as granted vide Central Excise N/N. 32/1999 and N/N. 20/2007 by restricting the excise duty refund to a particular percentage of the total duty payable.
Held that:- All the industries set up pursuant to the policy of 1997 and 2007 shall continue to enjoy the benefits of full exemption as per the policy and the notifications - Petition allowed.
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2014 (12) TMI 1322
Unjust Enrichment - Held that:- Revenue failed to demonstrate how the duty liability if any has been passed on to the consumer without being borne by the respondent. Therefore, Revenue's appeal fails for no evidence on record - appeal dismissed - decided against Revenue.
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2014 (12) TMI 1319
Evidences - there is no other evidence to support the revenue allegation despite of the fact that evidence produced by the department regarding signatures of the persons who prepared and signed parallel invoices were found to be similar to that appearing on the genuine invoices - Held that: - the findings recorded by the Appellate Authority and the Tribunal, are essentially finding of fact recorded on appreciation of documents brought on record and the statements recorded in the proceedings, which do not raise question of law much less any substantial question of law, to be decided in this appeal - appeal dismissed.
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2014 (12) TMI 1318
SSI Exemption - valuation - Value of cartons supplied by the appellants to the exporter was not being included in the total value of the clearances, for the purpose of SSI exemption benefit - Held that: - An identical question was considered in the case of Universal Packaging v. CCE, Mumbai-V [2010 (9) TMI 561 - CESTAT, MUMBAI] and it was held that carton/packaging material cleared to exporter, who used the same for packaging of exported material, which was admittedly exported in terms of Rule 19(1) of Central Excise Rules, 2002, has to be held as clearances for export and value of the same is not required to be added in the value of home clearances - appeal allowed - decided in favor of appellant.
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2014 (12) TMI 1293
Penalty u/r 26 of the CER, 2002 - clandestine removal of goods - duty paying invoices - Held that: - As the proceedings against M/s. Jawala Steel Corpn. against whom the allegations of clandestine removal of goods is there and same has not been adjudicated by the adjudicating authority therefore, imposing penalty against the appellants before me is pre-mature - matter remanded back to the adjudicating authority to adjudicate these matters also along with the cases of M/s. Jawala Steel Corpn. - appeal allowed by way of remand.
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2014 (12) TMI 1279
Consideration of representation - Manufacture - petitioner requests that while considering the representation, the decisions of the Supreme Court in Hyderabad Industries Ltd. vs. Union of India [1999 (5) TMI 29 - SUPREME COURT OF INDIA] and Commissioner of Central Excise and Customs, Bhubneshwar-I vs. Tata Iron and Steel Co. Ltd [2003 (4) TMI 104 - SUPREME COURT OF INDIA] be also considered - no further directions are necessary in this writ petition - petition disposed off.
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2014 (12) TMI 1269
Waiver of pre-deposit - Cenvat credit - ‘input services’ ‘inputs’ or capital goods - Penalty - The undisputed facts are that the appellant manufacture panmasala in retail pouches of different MRPs in respect of which duty liability is being discharged under Section 3A of the Central Excise Act, 1944 read with PMPM Rules, 2008 - Held that: - From a perusal of this Rule 15 of PMPM Rules, 2008, it is clear that it is a non obstante provision prohibiting taking of Cenvat credit of any Central Excise Duty paid on any input and capital goods or service tax paid on any input service used for manufacture of notified goods and also requiring that the duty on notified goods shall be paid in cash - The prohibition in Rule 15 of PMPM Rules is not in respect of ‘‘input service’’ as defined in Rule 2(l) of Cenvat Credit Rules, 2004, but is in respect of input services used for manufacture of the notified goods.
Moreover, prima facie, there appears to be merit in the appellant’s plea that such retail pouches and 100 gm tins of pan masala are used by different section of consumers and advertisement for 100 gm. tins cannot be treated as having promoted the sale of retail pan masala pouches - Stay application allowed - decided in favor of the assessee.
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2014 (12) TMI 1267
Maintainability of appeal - appeals have been filed without obtaining proper authorization u/s 35B(2) of the Central Excise Act, 1944 - Held that: - On going through the authorization I find that the Committee of Commissioners consist of two Commissioners and this authorization has been signed by only one Commissioner. Therefore, the authorization signed by the Commissioners is defective - appeals dismissed as defective and non-maintainable.
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2014 (12) TMI 1259
Maintainability of appeal - both the Commissioners have signed the notesheet on different dates, but no date has been mentioned in the authorization - On going through the Review order, it is found that there are two different dates, therefore, it cannot be considered that both the Commissioners have signed the Review order on 5-7-2013 - reliance placed on the decision of the case of CST v. L.R. Sharma [2014 (4) TMI 403 - DELHI HIGH COURT] by the learned AR - Held that: - authorization is undated and the case law relied upon by the learned AR is not relevant to the facts of the present case as in those cases the authorization was granted on two dates but in this case, no date has been mentioned in the authorization. Therefore, as held by this Tribunal in the case of Paswara Papers Ltd. [2013 (12) TMI 1136 - CESTAT NEW DELHI] wherein it has been observed that part of the authorization is yet to be dated therefore such authorization is not being acceptable to law. Admittedly, the authorization is not dated. In these circumstances, relying on the decision of Paswara Papers, I hold that authorization is not proper. - the appeal is not maintainable.
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2014 (12) TMI 1258
Demand of CENVAT credit - imposition of interest and penalty - clearance of imported/indigenous batteries as warranty replacements without payment of duty and without expunging the Cenvat credit amount availed by the petitioner - Held that: - It is settled legal principle that, the scope of interference of the order passed by the Settlement Commissioner is circumscribed, considering the scheme of Act and the power vested with the Commission so as to bring about a resolution to the dispute in a proper manner thereby balancing the interest of the assessee and protecting the interest of the Revenue. Bearing that legal principle in mind, if the impugned order is examined, the Settlement Commission has given elaborate reasons to justify their stand with regard to the demand of duty. With regard to the fixation of amount to be remitted to have the benefit of settlement, this Court cannot make a roving enquiry into the factual issues which has been dealt with by the Commission after taking note of the submission of the petitioner as well as the report submitted by the Revenue. Therefore, the findings rendered by the Commission directing the petitioner to pay the Central Excise duty at ₹ 37,80,089/- is confirmed.
With regard to the levy of penalty on the first applicant/petitioner and the demand of interest, it is seen that the Settlement Commission did not give a specific finding that the conduct of the applicant/petitioner is contumacious or wilful with an intention to evade the duty. In fact, the Settlement Commission observed that the department’s case has been proved by applying the yardstick of possibility and probability and not because of the availability of adequate evidence. If such is the case, obviously, there is no reason to levy penalty of ₹ 2 lakhs on the first, applicant/petitioner nor to levy interest.
Petition disposed off - decided partly in favor of petitioner.
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2014 (12) TMI 1254
Direction to appellant to deposit 50% duty confirmed against them - Held that:- the issue is contentious and arguable and the appellant has made an offer to deposit 7.5% of the duty confirmed against them in terms of the subsequent amendment to the provisions of Section 35 F, which are effective from 6.8.2014. We find the above offer to be reasonable, just and fair. We accordingly direct the applicant to deposit 7.5% of the duty demand within a period of 8 weeks. - Stay petition disposed of
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2014 (12) TMI 1253
Invokation of extended period of limitation - Cenvat credit - various iron and steel items - used as supporting structurals for fabrication of capital goods - Held that:- demand is clearly barred by limitation. Identical issues stand decided by the Tribunal in number of decisions and it stand held that inasmuch as law was declared subsequently, no malafide can be attributed to the appellant for the purpose of alleging suppression and for invoking the longer period of limitation. As the entire demand is barred by limitation, the impugned order is set aside. - Decided in favour of appellant
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2014 (12) TMI 1239
Availment of Cenvat credit on angles, beams, channels etc. as capital goods - Held that:- The show cause notice is issued in the month of October, 2011, demanding to recover Cenvat credit which was lastly taken on 31-8-2009, is definitely time barred as it is undisputed that the appellant has been filing the regular returns with the authorities and were availing the Cenvat credit on the angles, beams, channels etc. There is also no dispute as to the duty paid nature of the goods.
Ld. Counsel was correct in bringing to our notice that the judgment of Hon’ble High Court of Gujarat in the case of N.R. Agarwal Industries (2014 (5) TMI 603 - GUJARAT HIGH COURT) squarely covers the issue in favour of the appellant.
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2014 (12) TMI 1233
Penalty u/s 11AC - High Court dismissed the appeal filed by the Assessee against the decision of Tribunal [2014 (3) TMI 914 - CESTAT NEW DELHI] as withdrawn without prejudice to the right of the appellant to file an appropriate application reported in [2015 (1) TMI 843 - PUNJAB AND HARYANA HIGH COURT] - High Court do not find any reason to recall its order dated 24-9-2013. Therefore, dismissed this recall order application by providing the applucant a liberty to seek his remedy in accordance with law. - Application dismissed
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2014 (12) TMI 1223
Imposition of penalties - Section 112 of the Customs Act, 1962 or Rule 26/ Rule 209A of the Central Excise Rules - Personal hearing conducted by one commissioner and order passed by another in Shri Puneet Rungta - Held that:- the practice followed in the case of Shri Puneet Rungta is against the principal of natural justice in view of the settled proposition of law as per various case laws relied upon by this appellant. Accordingly, OIO passed by the Adjudicating authority and the case of Shri Puneet Rungta is remanded to the Adjudicating authority to decide the matter afresh in de-novo adjudication, after affording him an opportunity of personal hearing. In respect of remaining appeals matter is more or less similar to the case of Shri T.S. Makkar vs. CCE, Surat [2012 (10) TMI 981 - CESTAT AHMEDABAD]. As the appellant has not dealt with or transported the goods in any manner. Nor it was established that appellant was aware of the forged/ fake nature of license, then no penalties are invokable under Section 112(b)ibid and or Rule 209A of the erstwhile Central Excise Rules. - Decided in favour of appellant
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2014 (12) TMI 1220
Real manufacturer - Duty demand - whether the goods under dispute did not bear the brand name “Deep”? - penalty imposed - Held that:- The main appellant was registered with the Directorate of Industry right from 1985. Similarly, Deep Metal Works was also registered with the Directorate of Industry with effect from 13-3-1990. We have also gone through the various invoices under dispute. All the invoices very clearly state the main appellant as the manufacturer of stainless steel articles. We also note that Shri Prakash Nahar has very clearly admitted in his statement that both the units are manufacturing cutlery items and he is looking after the day-to-day work of both the units. There has been no averment on his part that the main appellant, i.e. Deep Engineering Works, was a trading unit or was getting the goods manufactured from Deep Metal Works. We observe that such a stand has been taken by the main appellant only after the issuance of show cause notice. Even in reply to the show cause notice, though they have taken such a stand, they were not able to prove anything about the procurement of either the finished products or the raw material and related payment details from anyone. Under the circumstances, we are of the considered view that the main appellant is one of the manufacturing unit and has manufactured the goods under dispute, as has been claimed by them even, in the declaration filed by them as also in the various statements of Shri Prakash Nahar who was looking after both the units
The learned Counsel for the main appellant has argued that the goods were not seized by the visiting Excise officer. This itself proves that the finished goods did not bear any brand name. We are not convinced with this argument. First of all, the duty is not demanded in respect of the finished goods found during the visit of the officers but on their past declarations. Further, there is no indication whatsoever that the goods were not bearing the brand name. On the contrary, the statement recorded on that very day clearly indicates that the goods of both the units bear the brand name “Deep”. Under the circumstances, we reject the said contention of the appellant. We also note that the fact that the goods manufactured by the main appellant bear the brand name of other person was not disclosed to the department and this is a clear-cut suppression of facts. In fact the appellant has not even taken the Central Excise registration with the department. In such a situation, in our view, extended period of limitation would be clearly applicable. Once the goods are bearing the brand name of other person, the main appellant was not entitled for the SSI exemption and it was their duty to take the Central Excise registration and pay the duty. It is also stated that the sole proprietorship business firm is not a sui juris and it cannot be a party any proceedings. We note that the declaration was filed in the name of Deep Engineering Works and the notice was issued in the same name. The main appellant has replied and participated in the proceedings till date and under the circumstances, we do not find any force in the argument of the main appellant.
As far as the role of Shri Bharat Shah is concerned, it is clear from the details that he was aware that the goods are bearing the brand name and was therefore liable to pay duty and the goods were also confiscable, but as the goods had been cleared long back, the same could not have been confiscated. The penalty imposed under Rule 209A of the Central Excise Rules is in order.
We also find that Shri Prakash Nahar has been looking after both the units’ day-to-day activities and even during investigation he has agreed to pay the duty, but still he has not paid the duty. Undoubtedly, he has dealt with the goods in respect of which the demand has been raised. He was aware that the goods are bearing the brand name of other company and the penalty has been correctly imposed under Rule 209A on appellant No. 3.
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2014 (12) TMI 1216
Input service credit on construction services of dormitory - denial of claim on the premises that same does not qualify as input service as per rule 2/N of the Cenvat Credit Rules, 2004 - Held that:- It is alleged in the show cause notice that the dormitory is located outside factory premises but the appellant in reply to the show cause notice has clearly mentioned that this dormitory is constructed within factory premises and the said fact has not been contradicted by the Adjudicating Authority or the first appellate authority.
In these circumstances, it is held that dormitory is located within the factory and same can be verified by the department on visiting the factory premises. As the dormitory is located within the factory and the use of the dormitory is for the technicians / engineers for their stay in the factory itself which is required for maintenance of plant and machinery and these technicians / engineers should be available immediately as the factory is located in a remote area. Therefore, hold that the construction of dormitory for this purpose of stay of technicians / engineers is integrally connected with the manufacturing activity of the appellant. Therefore, the credit is available as that service has been availed in the business of manufacturing activity. In these circumstances hold that as construction of dormitory is an integral part of the manufacturing activity of the appellant, the appellant is entitled to take Cenvat Credit on construction services. - Decided in favour of assessee
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