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Central Excise - Case Laws
Showing 81 to 100 of 3806 Records
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2015 (12) TMI 1311 - CESTAT MUMBAI
Valuation - whether the assessable value as adopted by the appellant based upon cost of production for discharge of duty liability on the goods cleared from their own unit is correct or the said duty liability needs to be discharged on the value which has been adopted by the appellant for the independent buyers - Held that:- Intermediate products cleared from the appellant factory are consumed by their own unit in Lote Parshuram for manufacturing of final product on which duty liability is discharged. Also undisputed is that the unit of the appellant at Lote Parshuram has availed the CENVAT Credit of the duty paid on the goods cleared from the factory - there was no reason to mis-declare the assessable value of the goods cleared to their own unit. The appellant was correct in stating that any duty liability discharged on the goods cleared to their own unit is eligible for CENVAT Credit by the unit at Lote Parshuram and there could not be any reason to mis-declare the price - impugned order to the extent it confirms the demand raised beyond the period of limitation is liable to be set aside and we do so. The demands raised within the period of limitation are liable to be confirmed with interest and we do so. Since the issue is of interpretation of law, penalty is not warranted on the appellant and accordingly, the penalty is set aside. - Decided in favour of assessee.
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2015 (12) TMI 1310 - CESTAT AHMEDABAD
CENVAT Credit - Penalty u/s 11AC - whether the imposition of penalty of equal amount of Cenvat Credit under Rule 15(2) of the Rules and Section 11AC of the Act is warranted - Held that:- There was a balance in the Cenvat account, more than the amount as demanded. It is clear that the appellant themselves filed the revise return to regularize the amount. Thus, there is no material available of suppression of fact with intent to evade payment of duty under the Section11AC of the Act. It is consistently viewed by the Tribunal that to impose penalty under Section 11AC of the Act, it is required to establish the short levy of duty would arise by reasons of fraud, collusion or any wilful mis-statement or suppression of fact with intent to evade payment of duty - impugned order is modified in so far as the demand of Cenvat Credit/duty alongwith interest is upheld. The penalty imposed under Rule 15(2) of the Cenvat Credit Rules read with Section 11AC of the Act, is set aside - Decided in favour of assessee.
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2015 (12) TMI 1309 - CESTAT AHMEDABAD
Denial of CENVAT credit - Construction Service and Sponsorship Services - nexus with output service - Held that:- Appellant was registered with the Service Tax authorities having Registration No AADCC6772BST003. The Learned Advocate placed the copy of the Service Tax Registration certificate. The appellant also drew the attention of the invoices issued by them as Service Provider indicating the Service Tax Code Number. It is evident from the record that the appellant was registered with the Service Tax authorities. - appellant placed the Service Tax registration certificate as well as the Service Tax Code Number as mentioned in the invoices before the lower authorities. Hence, there was no reason to remand the matter. In any event, there is no need to say that if the documents filed by the appellants are not legal, the appellant would be deprived from the benefit of this order. - Impugned order cannot sustained - Decided in favour of assessee.
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2015 (12) TMI 1308 - CESTAT AHMEDABAD
Transfer of CENVAT Credit from service tax to central excise - Rule 14 of Cenvat Credit Rules 2004 read with proviso to Section 11A(1) of the Central Excise Act 1944 - respondents have taken Service Tax Credit in their ST3 return and transferred the said amount to ER1 return and utilized the same for payment of Excise duty but, the respondent had not debited the said amount from the said ST3 return - Held that:- Appellant had taken credit of Service Tax of the said amount in their ER1 return for the month of November and December 2005. It has been alleged in the show cause notice that the respondent had wrongly availed the credit of the said amount in their ER1 return which is recoverable under Rule 14 of Rules 2004, which provides recovery of Cenvat Credit wrongly taken or erroneously refunded, where the Cenvat Credit has been taken and utilized wrongly or has been erroneously refunded, the same alongwith interest shall be recovered from the manufacture or the provider of the output service. By Interim Order No 226/2015 dtd 1.5.2005 the Tribunal directed the Learned Authorised Representative of the Revenue to place the verification report dtd 7.4.2010 as mentioned in the impugned order, before the Bench.
The amount of credit shown against the invoices issued by the service provider listed in the statement attached has been verified and original invoices found to be correct. The Commissioner (Appeals) passed the order on the basis of the said report - It is clear from the record that the credit of the Service Tax taken by the respondent is correct as per the report dtd 7.4.2010 of the Asstt. Commissioner, Central Excise, which was not disputed in the grounds of appeal. Thus, there is no scope to recover the said amount which was taken correctly under Rule 14 of the Rules, 2004. - Decided against Revenue.
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2015 (12) TMI 1307 - CESTAT AHMEDABAD
Denial of CENVAT Credit - appellant availed the Cenvat Credit on Grey Fabrics against the endorsed invoices - Invocation of extended period of limitation - Held that:- Rule 9 of the Cenvat Rules prescribed the documents for availment of the Cenvat Credit - On perusal of the Rule 9 of the Cenvat Credit Rules, it is clear that the Cenvat Credit cannot be allowed on the endorsed invoice. So, the appellant is not entitled to avail cenvat Credit on the basis of the endorsed invoices for the period of December 2004 to July 2006. Further, the appellant is a job worker. They received the Gray fabrics from the merchant/dealer for processing. With effect from 1.3.2003, the Central Excise Simplified Textile Scheme was implemented on the textile and garment sector. According to the said scheme, the merchant/supplier of the grey fabrics has deemed to be as manufacturer and permitted him (Merchant) to pay duty on processed fabrics manufactured as purchaser on job charges. There was an option that the merchant/supplier may discharge duty through the processor (job worker) and permitted the processor to avail credit on invoices in the name of the merchant endorsed by such merchants. The said scheme was withdrawn with effect from 10.9.2004. To sum up, the job worker is not entitled to avail cenvat credit after 10.9.2004 on endorsed invoices. - Central Excise audit officers during the verification of the records detected the irregular availment of the Cenvat Credit. Hence the extended period of limitation involved. - Decided against assessee.
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2015 (12) TMI 1306 - CESTAT MUMBAI
Confiscation of goods - finished goods found short in stock - whether on depositing the entire duty, interest and 25% of the penalty within 25 days of the show cause notice, all the proceedings against the appellant get concluded or not - Held that:- Once the appellant has deposited the entire duty along with 25% of the penalty amount within 30 days of the issuance of show cause notice, the entire proceedings against the appellant stand concluded. In this case there is no dispute with regard to deposit of duty and penalty within the stipulated period. In this view of the matter, the redemption fine imposed on the appellant is totally unwarranted and in contravention of the provisions as contained in Section 11A(2). Therefore, I set aside the redemption fine - Decided in favour of assessee.
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2015 (12) TMI 1305 - CESTAT BANGALORE
Denial of cenvat credit to manufacturing activity on the ground that assessee is availing the benefit of composition scheme under works contract to pay service tax - Revenue was of the view that inasmuch as the manufacturing unit of the appellant and the service providing unit of the appellant is one and the same, the manufacturing unit having availed the credit of duty paid on the steel plates used in the manufacture of pipes, which stand utilized by them for payment of excise duty on the pipes, would amount to as if the service providing unit has availed the CENVAT credit.
Held that:- No objection was ever raised by the Revenues at the time of collection of duty of excise from their manufacturing unit located at Gowdavalli. It is only when the service provider located at an altogether different unit opted for composition scheme, the Revenue's objection in respect of their manufacturing unit at Gowdavalli was raised.
Both the roles of the assessee are separately defined roles covered by different fields of law. i.e. one by the excise law and the other by the service tax law. Mixing up of the two cannot be appreciated. There is no prohibition under the law for one person to be a manufacturer as also a service provider. The activity of providing service starts from procurement of pipes, where the activity of manufacture of pipes ends. As such we find no justifiable and valid reasons to deny the CENVAT credit of duty paid on the inputs used in the manufacture of pipes manufactured by the appellant as a manufacturer. Accordingly, the impugned order is set aside - Decided in favour of assessee.
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2015 (12) TMI 1304 - CESTAT CHENNAI
Transfer of cenvat credit lying unutilized in the accounts of M/s. SPL Polymers Ltd amalgamated with the respondents M/s. Supreme Petrochem, Ltd. - Imposition of interest and penalty - Held that:- It is not the case of transfer of capital goods and inputs from one company to another. But, it is an amalgamation of M/s. SPL Polymers Ltd. with M/s. Supreme Petrochem Ltd., which have become one entity on amalgamation. The new entity is entitled to Cenvat credit which was lying unutilized in the accounts of the amalgamating company ie., SPL Polymers Limited. - The ratio of the above order squarely applies to the present case and in the present case there is no involvement of any transfer. Further, the Hon’ble High Court of Madras in the case of CCE, Pondicherry Vs. Cestat (2008 (7) TMI 383 - MADRAS HIGH COURT ) has upheld this Tribunal’s order and rejected the Revenue’s appeal. - appellants are eligible for Cenvat credit. I do not find any infirmity in the impugned order. - Decided against Revenue.
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2015 (12) TMI 1267 - GUJARAT HIGH COURT
Claim of exemption - Washing natural clay - use / non use of acid - sale of the product under trade name "Bleach-9” - activated clay/activated earth - Maintainability of petition - Alternate remedy - breach of principles of natural justice - Opportunity of cross examination not granted - Conflicting chemical test reports of different chemical examiners - Held that:- directions relate to sending the matter for the opinion of the Chief Chemist, therefore, one of the important factors in the ultimate outcome of these proceedings would be the report of the Chief Chemist. The record further reveals that the report of the Chief Chemist is adverse to the petitioner. It is further the case of the petitioner that the material furnished by it has not been considered at the time of preparing such report. Under the circumstances, it cannot be said that the petitioner was not justified in seeking to cross-examine the Chief Chemist, which opportunity has been denied by the adjudicating authority under the specious plea that the petitioner does not want to pay the excise duty. - The petitioner also requested for a personal hearing before taking any final decision in the matter. However, the adjudicating authority has proceeded to adjudicate the show-cause notice without affording any opportunity to cross-examine the Chief Chemist as well as without affording any further opportunity of hearing. Therefore, there is a clear case of breach of principles of natural justice, under the circumstances, the contention that the petition should not be entertained on the ground of availability of an alternative remedy under the statute, does not merit acceptance.
While opinion of the Chief Chemist has been called for pursuant to the directions issued by the Commissioner (Appeals), the true purport of the directions issued by the Commissioner (Appeals) has not been conveyed to the Chief Chemist. Under the circumstances, the Chief Chemist has not applied his mind to the matter in the light of the directions issued by the Commissioner (Appeals). The adjudicating authority, having regard to the directions issued by the Commissioner (Appeals) was required to furnish the operative part of the order passed by the Commissioner (Appeals) to the extent of the directions issued by him as well as the supporting documents, namely, the two reports of the different chemical examiners of the same laboratory as well as the documents furnished by the petitioner to the adjudicating authority in support of its case namely, the reports of IIT, Bombay, Vaibhav Enviro Consultant, Ahmedabad etc. were also required to be forwarded to the Chief Chemist. While from the affidavit-in-reply as well as the impugned order, it appears that the said documents have been forwarded to the Chief Chemist, however, in the absence of the specific directions issued by the Commissioner (Appeals) being brought to the notice of the Chief Chemist, the report does not appear to have been prepared keeping the said parameters in mind.
With a view to bring finality to the proceedings, the matter is once again required to be referred to the adjudicating authority to ensure that the matter is once again referred to the Chief Chemist together with the directions issued by the Commissioner (Appeals) and the supporting documents as referred to hereinabove, for a fresh opinion on the question as to whether on the parameters contained in the two reports of the Chemical Examiner, Vadodara, it could be said that Bleach-9 is activated earth. The Chief Chemist would also be required to keep in mind the documents/reports furnished by the petitioner in support of its claim. Upon such report being furnished, a copy thereof is required to be furnished to the petitioner and in case the report is adverse to the petitioner, the petitioner shall be entitled to an opportunity of cross-examining the Chief Chemist. Thereafter, it is only after affording a reasonable opportunity of hearing to the petitioner that the final order may be passed by the adjudicating authority. - Decided in favour of assessee.
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2015 (12) TMI 1266 - GUJARAT HIGH COURT
Supply of goods to SEZ units by DTA suppliers - deemed export - procedure not followed - Rebate to of CVD paid claimed under Rule 18 of the Central Excise Rules, 2002 on the strength of disclaimer certificate by the suppliers in favour of the Petitioner - Held that:- In case of the petitioner, the goods in respect of which rebate is sought under the notification are raw materials which have been imported from foreign countries or procured locally from local manufacturer. The claim for rebate has been lodged on the goods received by the supplier on payment of duties including CVD. It is the case of the petitioner that the dealers have imported the goods and paid all duties including CVD, which is equivalent to the central excise duties as if the goods are manufactured in India. However, as rightly contended by the learned Standing Counsel for the respondents, the Countervailing Duty paid at the time of import of goods is a duty equal to the central excise duty leviable on such goods if manufactured in India. Such duty is levied to offset the disadvantage to like Indian goods due to high excise duty on their inputs and to provide a level playing field to indigenous goods which have to bear various internal taxes. However, such duty is not an excise duty.
It is by now well settled that in a taxing statute there is no scope of any intendment and the same has to be construed in terms of the language employed in the statute and that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the rules and the notification.
Procedure laid in the notification dated 06.09.2004 provides for sealing of the goods and examination at the place of the despatch. Undisputedly, in the case of the present petitioner, no such procedure has been followed. Moreover, the notification defines duty for the purpose of the notification to mean the excise duty collected under the enactments stated therein. Undisputedly, the duties paid by the petitioner in relation to the goods in question do not fall within the enactments stipulated in the notification. Clearly therefore, the petitioner has failed to satisfy the basic requirements for availing of the benefits under the notification. - petitioner is not entitled to any declaration to the effect that it is eligible for getting the rebate claim as sought for in the petition - Decided in favour of Revenue.
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2015 (12) TMI 1265 - PUNJAB & HARYANA HIGH COURT
Search and Seizure of goods - Discrepancy in RG-1 Register - clandestine manufacture and clearance of fabrics - Held that:- Assessee's dyeing master Shri Harbans Lal during the course of adjudication had accepted that the entries made in the diary belonged to him and were relating to his business transactions. The Tribunal further observed that the Commissioner (Appeals) also took into consideration the retraction made by the appellant by way of sending telegram and that the appellants have no capacity to manufacture such a huge quantity of poly fabrics. The Tribunal by merely observing that the learned Advocate for the assessee had placed on record the number of decisions laying down that entries made in the private note book read with statement cannot be held to be evidence to conclude against the assessee, rejected the appeal of the revenue. The charges of clandestine activities are required to be adjudicated by appreciating the factual matrix and by giving sufficient and cogent reasons. A perusal of the order of the Tribunal more particularly para 7 thereof shows that no legally justified reasons have been recorded for rejecting the appeal of the revenue. The Tribunal being a final fact finding authority was required to deal with all aspects of facts and also law and then record its conclusions based thereon. - Decided in favour of Revenue.
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2015 (12) TMI 1264 - CESTAT KOLKATA
Duty demand - Clandestine removal of goods - whether 34,174 pieces of inserts used by Railways were manufactured and cleared by the respondent clandestinely without payment of duty - Held that:- entire basis of allegation by the Revenue rests on the discrepancy in the production figures between the private register called as insert register and the statutory RG-1 register. Explaining the discrepancy as recorded by the ld.Commissioner(Appeals) in the impugned order, the Director of the respondent in his statement dated 23.10.2008 categorically stated that the private insert register is maintained at foundry level and it records the production at foundry level and cannot be considered as quantity manufactured and ready for dispatch as recorded in their RG-I register.
There is no discrepancy in the reasoning of the ld. Commissioner(Appeals) in rejecting the allegation of clandestine removal of 34,174 pieces due to the difference in the figures in the insert Register and RG-1 Register(DSA) and consequently short payment of duty. Before this forum also the Revenue could not produce any substantial evidence to contradict the aforesaid finding of the Ld. Commissioner(Appeals). In these circumstances, I do not find merit in the appeal of the Revenue - Decided against Revenue.
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2015 (12) TMI 1263 - CESTAT CHENNAI
Availment of CENVAT Credit - welding electrodes - Held that:- Tribunal allowed cenvat credit on welding electrodes used in or in relation to the manufacture of finished goods. By respectfully following the High Court’s decision (2006 (6) TMI 114 - MADRAS HIGH COURT ), I hold that the assessee is eligible for availing cenvat credit on welding electrodes used in or in relation to the manufacture of finished products. - Revenue relying on the Vikram Cement Vs. CCE, Indore (2009 (7) TMI 217 - CESTAT, NEW DELHI), is not relevant in view of the jurisdictional High Court of Madras decision and other Hon’ble High Court orders as discussed above, I am of the view that the impugned order, is not sustainable - Decided in favour of assessee.
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2015 (12) TMI 1262 - CESTAT CHENNAI
Denial of CENVAT Credit - input services - 100% EOU - Renting of Immovable Property services - Adjudicating authority has denied the benefit only on the ground that the rented premises Unit-II and Unit-III were located at different places than that of the registered premises - Held that:- Unit I, Unit-II and Unit-III share same legal entity, production processes and interlinked. Raw materials have been sent to Unit-II and Unit-III by Unit-I but for production of intermediate products and the intermediate products are received back by Unit-I for the manufacture of final products. Unit-II and Unit-III are exclusively producing the goods only for Unit-I. Without processing at Unit-II and Unit-III, final products cannot be manufactured at Unit-I. Therefore, renting of immovable property service is having direct nexus in the manufacture of goods at Unit-I. Rule 2 (1) of CCR, 2004, clearly mentions that service utilized in or in relation to manufacture of final products is eligible as input services. Hence, the benefit of cenvat credit on input services cannot be denied to the appellants. In view of the foregoing, I find that the appellant has made out the case in their favour and the impugned order is liable to be set aside - Decided in favour of assessee.
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2015 (12) TMI 1261 - CESTAT NEW DELHI
Duty demand - Clandestine removal of goods - demand on alleged shortage/ excess quantity of finished goods and inputs - Held that:- Even the excess found stock of finished goods i.e. quoted Duplex boards were laying in the factory at the time of visit of the Preventive Officers. It is also not the case of the Department that the shortage quantity of goods has been removed from the factory clandestinely, in view of the fact that neither in the SCN nor in the orders passed by the lower authorities, there is any mention to that effect. Hence in absence of any tangible evidence that the goods have been removed clandestinely by the appellant, I agree with the submissions of the Ld. Advocate that non-maintenance of proper records by the factory supervisor of the appellant has resulted in shortage/ excess in the stock of the goods. However considering the fact that the appellant has not maintained proper records, which is statutorily required to be maintained, I am of the view that the appellant is liable to pay the redemption fine and the penalty imposed by the authorities below. However considering the gravity of the case, I am of the view that the ends of justice will be met if the penalty imposed under Rule 25 of the Central Excise Rules is reduced to ₹ 20,000/- and penalty imposed under Rule 15 of the Cenvat Credit Rules is reduced to ₹ 25,000 - redemption fine can also be reduced to ₹ 67,441/- i.e. equal to the Central Excise duty payable on removal of impugned goods. - Decided partly in favour of asseessee.
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2015 (12) TMI 1260 - CESTAT KOLKATA
Demand of differential duty - Clandestine clearance of goods - Held that:- Allegation of clandestine removal rests on the discrepancy in the figures of OB & CB of Stock mentioned in the monthly ER-1 Returns relating to manufacture and production of only three items, namely, (i) Duraphos Rustokik etc. (ii) Phoschem Phosbond etc. & (iii) Phoschem Phosbond etc.. There is no difference between the OB and CB in DSA for June & July, 2010 and also for August & September, 2010. It is their claim that due to inadvertence, while filing ER-1 Returns, CB & OB have not matched for the said periods. - there is no discrepancy noticed by the Department in the Daily Stock Accounts in recording the OB & CB of Stock in relation to the said items. However, while recording the figures in ER-1 Returns, there could be possibility of writing, error in entering the data relating to OB and CB of the said items due to switching over from manual system of maintenance of records to computerized system. - Besides, except the said errors in recording the CB & OB in the respective ER-1 Returns, the Department has not adduced any other evidence in support of clandestine removal. In the result, the impugned order is set aside - Decided in favour of assessee.
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2015 (12) TMI 1259 - CESTAT MUMBAI
Valuation of the goods cleared in DTA - Held that:- Decisions in these cases were based upon the Tribunal's decision in the case of Morarjee Brembana Ltd. vs. Commissioner of Central Excise, Nagpur [2003 (2) TMI 100 - CEGAT, MUMBAI]. The department has also filed Civil Appeal against the said order of the Tribunal before the honble Supreme Court. The Honble Supreme Court vide order [2015 (4) TMI 354 - SUPREME COURT] has decided the appeal of Morarjee Brembana Ltd. In the same order, the honble Supreme Court has dismissed the Revenue's appeals filed in their own case. - Decided against Assessee.
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2015 (12) TMI 1258 - CESTAT NEW DELHI
Recovery of duty - Imposition of penalty - Held that:- Since, the amount of duty along with interest has been paid by the appellant on its own ascertainment and over and above such amount, no further amount towards Central Excise duty or interest was payable, there was no necessity for issuance of SCN, or for adjudication of the matter in view of the provisions of Section 11A(2B) of the Central Excise Act, 1944. As per the statutory mandates, upon payment of duty amount the issue has to be statistically closed for all practical purposes. Thus, I am of the view that issuance of SCN and adjudication of the matter in imposing the penalty under Central Excise Rules was not justified in the circumstances of the case. Further, in absence of suppression, misstatement, collusions etc., penal provisions contained in Rule 25 of the Central Excise Rules, 2002 cannot be invoked, justifying imposition of penalty. It is an admitted fact on record that the authorities below have not specifically observed that non-payment of duty within the prescribed time limit is attributable to the ingredients mentioned in the said rule. Thus, I am of the view that imposition of penalty under Rule 25 is not legal and proper. - there is no substance in the impugned order, justifying imposition of penalty - Decided in favour of assessee.
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2015 (12) TMI 1257 - CESTAT BANGALORE
Imposition of penalty - Clandestine removal of goods - Held that:- Appellant, it is seen that he was the General Manager of the Company w.e.f 2.6.1995. The clandestine removal findings against the main company are for the period from 1.1.1995 to 3.8.1995 i.e., during the period when he was not in the services of the company. On going through the findings of the Commissioner for imposition of penalty upon him, it is seen that the penalty stand imposed on the sole ground that he was the General Manager of the company and as such, was responsible for production and clearance of the goods without payment of duty. Apart from the above observations made by the adjudicating authority there is no evidence, at all, to show that the said appellant was in any way connected with the clandestine activities of the manufacturing unit. Merely because he was the General Manager for a limited period, cannot make him liable to penalty under Rule 209A unless there is evidence to show that such clandestine activity was being carried out with his knowledge and consent and under his instructions. - Decided in favour of appellant.
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2015 (12) TMI 1256 - CESTAT BANGALORE
Reversal of proportionate CENVAT Credit - clearance of exempted final products - Held that:- The impugned order of Commissioner (A) dropping the penalty does not stand challenged by the Revenue and as such has attained finality. Inasmuch as the appellate authority has observed that there is no mala fide on the part of the assessee, I find that invocation of longer period is not justified on the said ground itself. It is well settled law the circumstances for invocation of longer period and for imposition of penalties on an assessee are identical. Once the bona fide of the appellants are not being doubted for the purpose of imposition of penalty, the same cannot be doubted for the purpose of invocation of longer period. As such, I agree with the learned advocate that extended period cannot be invoked against them. On this ground itself I set aside the impugned order - Decided in favour of assessee.
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