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Central Excise - Case Laws
Showing 41 to 60 of 338 Records
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2017 (7) TMI 1120 - CHHATTISGARH HIGH COURT
Fiscal removal of capital goods - whether fiscal removal amounts to removal? - Held that: - It is held, even on assimilation of facts that ‘removal’ in the case in hand does not include any fiscal removal of goods from one place to other - appeal dismissed.
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2017 (7) TMI 1119 - CESTAT ALLAHABAD
Abatement of duty - Rule 10 of the PMPM Rules, 2008 - the appellant was required to pay duty as if he was manufacturing the notified goods from three separate machines, whereas admittedly all the three RSP-different products were being manufactured from the same one packing machine.
Held that: - in view of the amendment by way of substitution of the first proviso to Rule 8 of PMPM Rules, 2008 which is retrospective in nature, we hold that the appellant is required to pay duty based on the notified products having the highest RSP/MSP - In view of the admitted fact that the appellant have paid the duty on the basis of MRP/RSP per pouch which is highest of the notified goods, we hold that the demand on this score ₹ 1,25,29,839/- under Section 11A(2) of the Central Excise Act, 1944 is not tenable and accordingly, the same is set aside along with the penalty imposed of ₹ 1,25,000/- under Rule 17 of the Pan Masala Packing Machine (Capacity Determination & Collection of duty) Rules, 2008.
Allowance of abatement - Held that: - only allegation of the Revenue for rejection of abatement is that the amount of admissible abatement have not been quantified by the Department and secondly the appellant had cleared Pan Samagri (a non-notified goods) during the period of closure and as such was not entitled for the abetment - Held that: - the assessee is entitled to abatement during the period of closure, if they have removed or cleared any non-notified goods during the period of closure - appellant is entitled to abatement for the period under dispute.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 1117 - BOMBAY HIGH COURT
CENVAT credit - input - welding electrodes used for repairs and maintenance of plant and machinery - Held that: - This Court in Lloyd Metals & Engineers Ltd. [2009 (11) TMI 313 - BOMBAY HIGH COURT] on principle held that material used for repairs and maintenance of capital goods cannot be considered to be an input under Cenvat Credit Rules, 2004 - We cannot depart from the view taken therein and the distinctions shown by Mr. Thakur does not warrant our ignoring the binding precedent and/or refering it to the Hon’ble the Chief Justice to constitute Larger Bench - the substantial question of law is answered in affirmative i.e. in favor of respondent-Revenue and against appellant-assessee.
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2017 (7) TMI 1112 - CHHATTISGARH HIGH COURT
CENVAT credit - inputs - Welding Electrode used for repair and maintenance purpose - Held that: - Welding Electrodes used in the manufacturing process are considered as inputs in the case of M/s. Singhal Enterprises Private Limited Versus The Commissioner Customs & Central Excise, Raipur [2016 (9) TMI 682 - CESTAT NEW DELHI] - credit allowed.
CENVAT credit - structural steel items used for construction of the Sponge Iron and Billet Plant which is immovable, being permanently embedded to earth - Held that: - issue covered in the case of M/s. Singhal Enterprises Private Limited Versus The Commissioner Customs & Central Excise, Raipur [2016 (9) TMI 682 - CESTAT NEW DELHI], where it was held that applying the “User Test” to the facts in hand, we have no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of ‘Capital Goods’ as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat Credit - credit allowed.
Appeal dismissed - decided against Revenue.
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2017 (7) TMI 1110 - CESTAT CHENNAI
Classification of goods - heavy duty starter motors for use in internal combustion engines - whether classifiable under chapter heading 8409.00 or under 8511.00 as Electrical Item? - Held that: - when the above product as a part if suitable for use solely and principally with a particular kind of machine, are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate, in terms of Section Note 2 (b) under Section XVI of the schedule to the Tariff Act which deals with chapter 84 and 85.
The above part namely Heavy duty Cranking Motor manufactured by the appellants as parts, suitable for use solely and principally with the I.C. Engines of Headings 8407.00 or 8408.00 have to be necessarily classified under sub-heading 8409.00 of the schedule to the Tariff Act.
Appeal dismissed - decided against Revenue.
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2017 (7) TMI 1108 - CESTAT ALLAHABAD
CENVAT credit - inputs - Cement have been used in laying foundation of new machinery - Held that: - Hon'ble Madras High Court in the case of ‘India Cement Ltd’ [2015 (3) TMI 661 - MADRAS HIGH COURT] has held that staging and supporting structures are essential part of the machinery, so as to run the same for manufacture of dutiable finished products - credit allowed.
Light fitting - Held that: - the same are also essential inputs for the purpose of manufacture of dutiable finished goods as no production can take place in darkness. Admittedly such light fitting are used in the factory of production - credit allowed.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 1107 - CESTAT MUMBAI
CENVAT credit - CHA services availed for export of goods - repair and maintenance service of the vehicles in the name of the company - Held that: - identical issue decided in appellant own case Rathi Dye Chem Pvt. Ltd. Versus Commissioner of Central Excise, Belapur [2016 (11) TMI 1085 - CESTAT MUMBAI], where it was held that the credit of service tax paid on the vehicles belonging to the company and used by the Managing Director cannot be denied - credit allowed - appeal allowed.
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2017 (7) TMI 1072 - CESTAT BANGALORE
Levy of excise duty - goods cleared to SEZ developer - whether the appellant is required to discharge the Central Excise duty on the inputs which were consumed for manufacture of goods cleared to SEZ unit developers by availing exemption under N/N. 50/2008? - Held that: - the issue is squarely settled by the Hon’ble High Court of Karnataka in the case of Fosroc Chemicals (India) Pvt. Ltd. [2014 (9) TMI 633 - KARNATAKA HIGH COURT], where it was held that clearances made to SEZ unit developers are equal clearances made to SEZ units and there is no need for reversal of 10% of the value - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 1034 - CESTAT AHMEDABAD
Valuation - includibility - insurance charges(part of cost of transportation) - The Appellant claims that it is not includible in the value being post removal expenses viz. transportation, whereas, revenue claims it as breakage allowance/compensation, hence, part of the value of the goods - whether the amount equal to 7% of the value of the goods, collected as insurance charge under the head Cost of Transportation from the dealers/buyers is includible in the assessable value and chargeable to duty? - Held that: - A simple reading of the General terms of sale reveals that the appellant though claimed that all of their sales are on ex-factory basis, but there are two category of buyers as per the said sales agreement; namely, buyers who take delivery of the goods at the factory gate and the second category of buyers who opt for delivery at their place which should be undertaken by the appellants - in the present case, the appellants on receiving extra amount @7% of the total value undertook to deliver the goods breakage free, and compensate the buyer for breakages by issuing credit notes, therefore, such sale ought to be considered not a sale on ex-factory basis but on FOR basis even though the Cost Transportation is not included in the price but shown separately in the invoice. Besides, the condition stipulated in clause (3) General Terms of Sale looses its significance of the delivery of possession at the factory gate, when the Appellant compensated the buyers for loss/breakages during transit to later premises by issuing credit notes.
In our opinion, the issue is squarely covered by the decision of the Hon’ble Supreme Court in the case of Surya Roshni Ltd. (2000 (9) TMI 71 - SUPREME COURT OF INDIA]. - Decided against the assessee.
Extended period of limitation - Whether the demand issued for the period from 01.02.1999 to 30.9.2004 is barred by limitation as the demand notice was issued on 26.2.2004? - Held that: - Once the facts are within the knowledge of the Department, being always in dispute, hence the allegation that they had suppressed the facts from the knowledge of the Department, cannot be acceptable.
On the issue relating to the differential duty on the quantum of discount not passed to the customers, the ld. Advocate for the appellants claimed that during the said period, though they have claimed a total discount of ₹ 21,60,72,896/- but in fact they have passed more discount to their buyers amounting to ₹ 23,23,77,024/-hence, duty demanded on this count is unsustainable in law - the matter is remanded to the adjudicating authority for determination of the said issue.
Penalty - Section 11AC of CEA, 1944 - Held that: - since the issue relates to interpretation of valuation provision and duty has been confirmed for the normal period, in our view, imposition of penalty equal to the duty under Section 11AC of CEA, 1944 is unwarranted and unjustified.
Appeal allowed in part and part matter on remand.
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2017 (7) TMI 1033 - CESTAT HYDERABAD
Refund of excess amount paid - time limitation - Section 11B of Central Excise Act, 1944 - whether the refund claim filed by the appellant for refund of excess amount paid in terms of Rule 6(3)(b) of the CENVAT Credit Rules, 2004 is to be considered by applying the provisions of Section 11B of the Central Excise Act, 1944 and whether such refund claim is admissible?
Held that: - Provisions of Section 11B of the Central Excise Act, 1944 clearly indicate as to what is "relevant date". By applying the said meaning of "relevant date", in the case in hand, the relevant date for claiming the refund of any excess amount paid could be the date on which the appellant has debited the amount of 10% of the value of the exempted goods cleared from his factory which was 31.03.2009 and the refund claim has been filed with the office of the Assistant Commissioner, Central Excise on 27.06.2011. Provisions of Section 11B do not permit for filing the refund claim of any amount beyond the period of one year if the same are not paid "under protest". In the case in hand, appellant has not paid the amount for which refund claim has been preferred, “under protest”. On this ground itself, I find that the impugned order is correct and legal and does not suffer from any infirmity - appeal dismissed - decided against appellant.
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2017 (7) TMI 1032 - CESTAT BANGALORE
CENVAT credit - separate accounts for exempted as well as taxable goods - Natural justice - Held that: - the issue involved in the present case is no more res integra and has been settled in favor of the appellant by the decision in the case of Sujana Metal Products Vs. CCE [2011 (9) TMI 724 - CESTAT, BANGALORE], wherein the Division Bench has come to the conclusion that supplies made to SEZ from DTA are deemed exports and assessee is entitled to the benefit of CENVAT credit and is not required to maintain separate account for dutiable and non-dutiable goods - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 1031 - CESTAT BANGALORE
Liability of interest - Rule 14 of the CCR, 2004 - irregular cenvat credit was reversed immediately on being pointed out - Held that: - the issue involved in the present case is no more res integra and has been settled in favour of the assessee by the decision of the Hon'ble Karnataka High Court in the case of Bill Forge Pvt. Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT], where it was held that if the credit availed is not utilized there is no liability to pay interest - appeal dismissed - decided against Revenue.
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2017 (7) TMI 1030 - CESTAT MUMBAI
Refund claim - rejection on the ground that the appellants have filed refund claim after one year from the date of shipment (date of export) therefore, in terms of Section 11B the refund is time bar as the same were filed after one year from the date of export - Held that: - the fact is not under dispute that all the refund claims were filed within one year from the end of the quarter, for which the refund pertains - Rule 5 read with N/N. 5/2006 thus provides that refund should be filed on quarterly basis only after completion of the particular quarter. Therefore, the refund cannot be filed before completion of the quarter - in the facts of the present case, since all the refund were filed within one year from the date immediately after completion of a quarter, even as per the provisions of 11B the refund claims are within time limit. For this reason the refund is not liable to be rejected on time bar - appeal dismissed - decided against Revenue.
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2017 (7) TMI 1029 - CESTAT BANGALORE
CENVAT credit - separate set of accounts for dutiable as well as exempt goods - case of Revenue is that when separate maintenance account for receipt, consumption and inventory of inputs which are common to dutiable as well as exempted goods has not been maintained in terms of Rule 6(2), the appellants will have to pay the amount equal to 8% or 10% of the sale price of the exempted final products cleared from the factory either for home consumption or for export.
Held that: - the demand is not sustainable as the proportionate credit is already reversed by the appellant and the same is allowed with retrospective effect - reliance placed in the case of M/s Bhusan Power & Steel Ltd. Versus Commissioner of Central Excise & Customs, BBSR II [2013 (11) TMI 843 - CESTAT KOLKATA] - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 1028 - CESTAT MUMBAI
100% EOU - Refund claim - input services - Interior Decorator service - Courier Service - Banking and Financial Service - Air Travel Agent Service - Rent-a-cab service - denial on the ground of nexus - Held that: - the appellant being a 100% EOU and on the undisputed fact that during the relevant quarter i.e. January 2007 to March 2007 entire manufactured goods have been exported, there is no need of any co-relation to be established. The co-relation is required only when the part manufactured goods is exported and part is cleared in the domestic market - all the services were held as admissible input service and cenvat credit is admissible - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 1027 - CESTAT ALLAHABAD
Clandestine manufacture and removal - undervaluation - shortages and excesses of raw material and finished goods - Held that: - the learned Commissioner has erred in his findings based on the submissions and admission made by the appellant-RPIL before Settlement Commission, which are wholly against Section 32 E(1) of the Act. The learned Commissioner has also erred in relying on the case made out by the investigation, in view of the glaring fact that Shri. S.G. Gupta has stated that the said private record contains entries relating to RPIL-appellant, Premier Polyfilm Ltd. and his personal affairs. No effort was made by investigation in segregating entries with respect to particular company and/or the appellant leading to erroneous conclusion by declaring all the transactions recorded in the said diary/private ledgers as attributable to appellant RPIL. Further, Shri. S.G. Gupta has categorically stated that no clearance have been made by RPIL without issuance of invoice. Further, during entire investigation or even till the adjudication, no person other than Shri S.G. Gupta had admitted the case of clandestine removal or under valuation by RPIL.
There is no evidence produced to establish that there has been flow back of any funds to establish under valuation and therefore under valuation is also not established in the present case. Therefore, while setting aside the demand of duty raised on account of clandestine removal or under valuation, we also set aside the impugned order. As regard confiscation, we found that the Panchnama does not refer to any method of verification of stock, which was otherwise not possible in such a short span of time. Further, the show cause notice referred to statements of Shri Dwarika Dhish Sharma and Shri S.G. Gupta on the spot in this regard whereas no such statement was produced or found on record (RUD). The goods were very well in the factory and not even a single roll was found kept outside or in concealed manner or loaded on vehicle for removal without duty. Mere holding of the explanation as afterthought was not sufficient to confiscate the goods.
As regard demand of duty on account of shortage during stock verification, we set aside the same also on the basis of observation made above. We also set aside the confiscation and we hold that the penalties as imposed under Rule 26 are erroneous. As regards under valuation, it is observed that but for the entries in the records of Shri S.G. Gupta, no other evidence is adduced by the Department. None of the customers or even any other employee of RPIL had accepted the same. Here again it is observed that when the personal records of Shri S.G. Gupta were having information mainly of PPL, no case otherwise could be made against the appellant, as no incriminating document or corroborating evidence of whatsoever nature was brought on record against RPIL. We also fail to understand as to why Department did not make enquiry against PPL in spite of having such information at the beginning of their investigation. Therefore, we hold that the department has miserably failed to make out case against the appellant. It is a well settled law that the charge of clandestine removal and under valuation being serious charge, the department is required to produce corroborative evidence, which the department has failed in the instant case. Accordingly, we allow all the appeals.
The penalty under Rule 26 is not warranted against all co-appellants in view of there being no proposal of confiscation in the relevant show cause notice, apart from our findings given above that no case of demand of duty and penalty is otherwise made out.
Appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 987 - MADHYA PRADESH HIGH COURT
Natural justice - opportunity to the noticee to cross examine the witnesses - rehearing of case - error apparent on the face of record - Held that: - the Apex Court has held that rehearing of a case can be done on account of some mistake or an error apparent on the face of the record or for any other sufficient reason - In the present case, there is no error apparent on the face of the record and the petitioner in fact under the guise of review is challenging the order passed by this Court, which is under review.
The Apex Court in the case of State of West Bengal and Ors. Vs. Kamal Sengupta and Anr. [2008 (6) TMI 578 - Supreme Court Of India], has held that a mistake or an error apparent on the face of the record means a mistake or an error which is prima-facie visible and does not require any detail examination - In the present case the petitioner has not been able to point out any error apparent on the face of the record, on the contrary this Court has decided the case on merits.
The scope of review has held that re-appreciation of evidence and rehearing of case without there being any error apparent on the face of the record is not permissible in light of provisions as contained U/s 114 and Order 47 Rule 1 of Code of Civil Procedure, 1908.
Petition dismissed - decided against petitioner.
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2017 (7) TMI 986 - CESTAT KOLKATA
Principles of Natural Justice - maintainability of appeal - non-appearance of appellant before ld. Commissioner (Appeals) - Held that: - in spite of various opportunities of personal hearing given by the first appellate authority, the appellant did not appear before him. Accordingly, the appellate authority has proceeded to decide the appeal without observing the principle of natural justice. I also find that no documents were filed before him. Under the circumstances, I set aside the impugned order and remand the matter to the ld.Commissioner (Appeals) for re-consideration of the case on merit - appeal allowed by way of remand.
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2017 (7) TMI 985 - CESTAT KOLKATA
CENVAT credit - input credit distribution - job-work - the Service Tax credit taken by Howrah unit on the basis ISD Invoice/Challan issued by the head office (Service Distributor) has been denied under Rule 7(b) of the Cenvat Credit Rules as the goods manufactured by the Bhadreawar unit were exempted vide N/N. 8/2005-ST dated 01.03.2005 - Held that: - Rule 4(5)(a) provides that Cenvat Credit on inputs shall be allowed even if any inputs as such or after being partially processed are sent to a job worker and after re-processing therefrom are received back by the manufacturer within the stipulated period - Thus, it is clear that the processed material of the Bhadreshwar Unit has been sent back to the Howrah unit who used it in the manufacture of the final product and cleared on payment of duty. It cannot be said that the Bhadreshwar Unit is exclusively engaged in manufacture of the exempted goods - Rule 7(b) of CCR debarred the distribution of credit of Service Tax attributable to Service Tax used by one or more units exclusively engaged in the manufacture of exempted goods or providing of exempted services shall not be distributed.
Rule 4(5)(a) has not given any exemption from the levy of duty on the job-worked material. Therefore, the findings of the lower authorities cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 984 - CESTAT CHENNAI
100% EOU - refund claim - commission given to foreign agent - denial on the ground that the credit taken on the service tax paid on the commission paid to foreign agent does not qualify to be an 'input service as per the definition - Held that: - The commission paid to foreign agent is necessarily an activity related to business of manufacture. The inclusive part of the definition is very wide since it does not exclude any specific category of service related to business. With effect from 1.4.2011 these words 'activities related to business was deleted from the definition. The period involved in the present case is prior to 1.4.2011 - The appellant has explained in reply to SCN that being an exporter appellant has to find source of foreign buyers for which they have to engage foreign agents to whom the commission is paid. As a 100% EOU it is required to achieve positive net foreign exchange for which they have to ensure constant foreign market for their products - denial of credit is unjustified - appeal allowed - decided in favor of appellant.
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