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Central Excise - Case Laws
Showing 81 to 100 of 4716 Records
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2017 (12) TMI 1276 - CESTAT ALLAHABAD
Whether ethyl alcohol and rectified spirit are two different commodities or one and the same commodity?
Held that: - Hon’ble Supreme Court in the case of State of Uttar Pradesh Vs M/s Modi Distillery and others [1995 (8) TMI 300 - SUPREME COURT] has held that ethyl alcohol and rectified spirit are one and the same - rectified spirit which is not used for human consumption is nothing but ethyl alcohol and is finding place in tariff item no. 22072000 - appeal dismissed - decided against Revenue.
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2017 (12) TMI 1272 - DELHI HIGH COURT
100% EOU - CENVAT credit - goods purchased from sister unit - whether the supplier being a sister concern had taken undue advantage of the benefit by charging duty which was paid by the respondent-assessee? - Held that: - this is not a case of an arm's length transaction as the supplier and the respondent-assessee were related to each other, but counsel for the Revenue has stated that they have not examined the said aspect whatsoever and it is not the pleaded case of the Revenue. The show cause notice and the order in original do not record that the supplier has taken undue benefit by asking the respondent-assessee to pay the duty. Even otherwise, the impugned order permits the Revenue to proceed in case of any wrongdoing in the case of the supplier.
The impugned order does not require any interference. Duty has been paid by the respondent-assessee to the supplier, hence they are entitled to benefit and refund on export - appeal dismissed - decided against appellant-Revenue.
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2017 (12) TMI 1268 - CESTAT CHENNAI
Manufacture - whether the process of "cropping" carried out by the appellant on the grey fabrics will attract mischief of Chapter Note 3 of Chapter 52 and Chapter Note 4 of Chapter 55 as "any other process" that shall amount to 'manufacture'?
Held that: - A closer examination at the indicative list of processes in the chapter notes would lead to the inescapable conclusion that, all those processes when subjected to woven fabrics of cotton/synthetic staple fibres bring about irreversible change in the characteristics of such fabrics and further, all these processes may also require treatment or intervention of chemicals to achieve the desired result - the term "any other process" will necessarily be of the same genre of processes which bring about permanent change in the characteristics of the fabrics. This is the doctrine of Noscitur A Socis, namely, that the meaning of doubtful word can be ascertained by reference to the meaning of words associated with that word - Applying the doctrine of Noscitur a sociis, it is held that "any other process" will necessarily have to be one like bleaching, mercerizing, shrink-proofing etc. resulting in permanent change in the characteristics of the fabrics and mostly involving use of a chemical agent. Per contra, "cropping" involves removal of fibres from surface of the fabrics, by cutting projecting fibres and yarn, the terms "cropping" and "shearing" are very often used interchangeably. The only apparent difference being that in shearing the fibres are cut in an angular manner on the surface of the fabric itself. Both these processes are intended to give a clean and smooth appearance to the fabric and to control pill formation. The cropping or for that matter, shearing processes cannot be considered as being of the same genre as bleaching, mercerizing, dyeing, printing etc.
The process of "cropping", which merely involves cutting away mechanically loose ends from the fabric to give a clean and smooth appearance will not fall within the ambit of "or any other process" for the purposes of Chapter Note 3 of Chapter 52 or Chapter Note 4 of Chapter 55 of the Schedule to the Central Excise Tariff Act, 1985 - any conclusion that the impugned cotton / synthetic grey fabrics subjected to "cropping" are "processed" fabrics requiring classification under CETA 5207.39 & 5208.39 (under 5207.29 and 5208.29 till 28-02-2001) and 5511.29, 5512.29 and 5513.29 respectively, is surely a misinterpretation and hence consequential demand of duty made by the adjudicating authority is not supported by law.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1249 - CESTAT MUMBAI
Interest on delayed refund - case of appellant is that they are entitled to interest for the period starting from three months after the date of filing refund claim to the date of sanctioned of the said refund claim - Held that: - in terms of Circular F. No.275/37/2000-CX dated 2-1-2002 , which is applicable retrospectively, the refund would have been due immediately after Commissioner(Appeals) set aside the demand in respect of which the said pre-deposit was sustainable i.e. on 6-5-1999. Appellant filed refund claim 4-9-2000 and are seeking interest from the period three months thereafter till the sanction of refund - appellant become entitled to refund immediately after the said demand was set aside by Commissioner(Appeals) - refund allowed - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1248 - CESTAT MUMBAI
Demand of duty and penalty - SCN was issued to the appellant on account of certain debit notes raised by the appellant to their dealers - Held that: - SCN contained list of debit notes issued to various dealers however it does not contains the exact nature of expenses. It is not understood as to how the Commissioner has quantified the demand in absence of said data - The appellant have also not cooperated with the Commissioner in giving prompt explanation.
While there was failure on the part of the appellant to proper defence of their matter, the impugned order also does not give any justification for quantification of duty - appeal allowed by way of remand for de novo decision.
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2017 (12) TMI 1247 - CESTAT MUMBAI
CENVAT credit - Naptha - case of the department is that in terms of provisions of Rule 6(1) of CCR, Cenvat credit on duty paid on the Naphtha is not admissible to them as the same is used in the manufacture of exempted final products, viz. Fertilisers - Held that: - Ld. Counsel has raised the issue of quantification dispute of the Cenvat credit on Naphtha on the basis that other than the Naphtha some other fuel such as natural gas, furnace oil were used. Accordingly, quantum of Naphtha against total generation of steam will stand reduced, however this being matter of fact, has to be verified - matter may be sent to the adjudicating authority for verification of the re-quantification done by the appellant.
Penalty u/r 15 of CCR - Held that: - It is admitted that appellant have availed wrong credit as provision of Rule 6(1) is very explicit and there is no confusion that the Cenvat credit in respect of input used in the exempted goods is not available - there is clear contravention of the Rule 6(1) - penalty upheld.
Appeal allowed in part by way of remand.
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2017 (12) TMI 1246 - CESTAT MUMBAI
Valuation - related party transaction - comparable goods sold to the independent customer - Rule 6(b)(ii) of Central Excise Valuation Rules, 1975 - Held that: - the Tribunal has categorically directed that valuation of the goods is required to be done in term of Rule 6(b)(ii) of Central Excise Valuation Rules, 1975 and on the basis of the principles enunciated as per CAS-4. This order attained finality and no challenge was made either by the Revenue or by the Assessee - It is observed that the adjudicating authority has revalued the goods on the basis of cost sheet as per CAS-4 therefore the Adjudicating authority has scrupulously followed the direction given by the Tribunal. In this position neither Revenue nor the assessee should be aggrieved by the impugned order - appeal dismissed - decided against appellant.
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2017 (12) TMI 1245 - CESTAT MUMBAI
Demand of differential duty due to wrong calculation - intent to evade - extended period of limitation - Held that: - the differential duty demand was raised only due to difference in calculation for value as per CAS-4. This is not a case of clearance without payment of duty. The issue involved is only a calculation on value therefore it cannot be said that the appellant had any malafide intention with intent to evade payment of duty - the demand for the extended period, penalty and interest corresponding to the said demand is set aside - adjudicating authority is free to recalculate the duty if any arise for the normal period and recover for forthwith - appeal allowed by way of remand.
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2017 (12) TMI 1244 - CESTAT MUMBAI
Penalty u/s 11AC - penalty not taking part in adjudication by adjudicating authority - Held that: - neither any discussion was made by the Commissioner on this issue nor any decision was given in the impugned order therefore issue of penalty has not been adjudicated by the adjudicating authority. In this scenario matter needs to be remanded to the adjudicating authority for passing a fresh order on the issue of penalty proposed u/s 11AC read with Rule 25 of Central Excise (No.1) Rules, 2001/Central Excise Rules, 2002 and Rule 173Q of the erstwhile Central Excise Rules, 1944 - appeal allowed by way of remand.
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2017 (12) TMI 1240 - CESTAT ALLAHABAD
CENVAT credit - duty paying documents - it was alleged that the invoices, accompanying the inputs and the Cenvat showed therein is doubtful and/or fraudulent - Held that: - the issue is squarely covered by the decision in the case of The Commissioner of Central Excise Customs & Service Tax Versus M/s. Juhi Alloys Ltd., Anil Kumar Shukla [2014 (1) TMI 1475 - ALLAHABAD HIGH COURT] - Similar to the facts of Juhi Alloys Ltd., appellant M/s RSIL have also lead evidence of usage of road permits (under sales tax law) i.e. for transportation of goods. The road permits are pre-authenticated documents issued by the Trade Tax Department and assessee is required to maintain proper records of their usage. The appellant also filed road permit issued by to M/s M. K. Steels Pvt. Ltd for transport of MS Ingots in question. Further, the appellants have lead evidence that payment for the purchase of the input was made by cheque.
It was held in the case of Juhi Alloys Ltd that The assessee, was found to have duly acted with all reasonable diligence in its dealings with the first stage dealer, and the credit was allowed - following the same, credit allowed - appeal allowed - decided in favor of Revenue.
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2017 (12) TMI 1239 - CESTAT ALLAHABAD
CENVAT credit - SAD @4% paid/reversed by M/s HSCIL and the credit was availed by the appellants - supplementary invoices - Sub-section (2B) of Section 11A of Central Excise Act, 1944 - Held that: - provisions of Sub-section (2B) of Section 11A of Central Excise Act, 1944 are applicable since the explanation 1 below the said Sub-section is not invokable in the present case for the reason that Revenue could not establish that there was intention to pay less amount as compared to required amount because the whole exercise was revenue neutral - also, the question of imposition of penalty on said alleged violation does not arise - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1237 - BOMBAY HIGH COURT
Whether in the facts and circumstances of the case and in law respondent no. 3 was required to serve a copy of the impugned order dated 9th January, 2015 upon the Official Liquidator, High Court, Bombay?
Held that: - in view of the fact that the order was not served on the company and on account of closure of the company as recorded above, there was no justification in proceeding to pass the impugned orders. On behalf of the Revenue, Mr. Bangur, learned counsel for the Revenue has not been able to demonstrate as to how the case of the appellant is incorrect. Admittedly, the company was closed at the relevant time and there was proper service of the impugned orders upon the appellant.
The CESTAT dismissed the appeals and concluded that the mode of service by affixing a copy of the order on the factory gate was within the purview of Section 37C of the Act on the basis that this was not disputed by the appellant - Delay in filing the appeals is condoned and the Central Excise Appeals are remanded to the Commissioner of Central Excise (Appeals) for fresh consideration on merits and in accordance with law
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2017 (12) TMI 1234 - BOMBAY HIGH COURT
Whether the Tribunal was right in holding that the provisions of Rule 57AC (2)(b) are applicable to deny the credit of balance of the 50 percent of duty paid on the said capital goods in the next financial year 2001-02 when there is no such provision in Rule 57A (2)(C)?
Held that: - In this case, the Apex Court observed that Rule 57AC does not restrict grant of credit in a given financial year. Further, it was observed that whereas 50% of the credit can be taken in one financial year, the balance may be availed in subsequent years, subject to the condition that the capital goods are still in possession and use of manufacturer of the final products in the subsequent year - In the circumstances, the ultimate view taken by the Appellate Tribunal in the present case of confirming the demand of 50% credit availed by the appellant in the year 2001-02 cannot be faulted with, as admittedly, the capital goods were not used from December 2000 onwards.
Appeal dismissed - decided against appellant.
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2017 (12) TMI 1231 - BOMBAY HIGH COURT
CENVAT/MODVAT credit - capital goods acquired on lease - Whether the Modvat Credit availed by M/s. Ispat Industries Ltd., on capital goods acquired by them on lease in terms of Rule 57(R)(3) of Central Excise Rules, 1944 can be availed prior to reimbursing the leasing company for the Excise Duty component or the same can be availed only after reimbursing the leasing company for the excise duty portion?
Held that: - SubRule (3) basically provides that the credit of the specified duty paid on the capital goods shall be allowed to a manufacturer if the capital goods are acquired by the manufacturer on lease, hirepurchase or loan agreement, from a financing company subject to following the procedure provided in clauses (i) to (iv) in SubRule 3. The basic entitlement to avail credit is laid down in SubRule 3. Clauses (i) to (iv) lay down the procedure for availing of a credit. Subclause (b) of clause (ii) incorporates a requirement of producing a certificate from the financing company to the effect that the duty specified on such capital goods has been paid by the said manufacturer to such financing company prior to payment of first lease rental installment, or first hirepurchase installment or first installment of repayment of loan, as the case may be, along with a copy of the agreement entered into with the said financing company - The difference in SubRule (3) of erstwhile Rule 57R and SubRule (3) of Rule 57AC is crystal clear from the plain reading of both the SubRules. The procedure which is provided under SubRule (3) of Rule 57R is not provided in the amended provision.
From the date of conversion, the procedure which is required to be followed as per subclause (b) of clause (ii) of Rule 57R(3) will not apply. As far as SBI is concerned, the admitted position which is recorded in paragraph 2.1 of the impugned order is that the excise duty was reimbursed under Rule 57R(3) and in particular SubRule (3) thereof. The finding recorded on the basis of admitted position is that there was no contravention. In paragraph 2.1, the Appellate Tribunal, after considering 57R(3) has rightly observed that the said provision does not contain any stipulation to the effect that credit on capital goods acquired on lease can be availed only after reimbursement of the excise duty component to the financing company. The clauses (i) to (iv) of SubRule (2) of Rule 57R provide for procedure and not a condition precedent. The finding of fact recorded is that till the date of conversion into NonConvertible Debentures, no installment was paid towards repayment to IFCI. A letter of IFCI placed on record shows that only interest was paid - As regards the impugned order subject matter of Appeal No.173 of 2008 is concerned, the same is dated 10th September 2017. By that time, the order dated 24th July 2006 was passed by the Appellate Tribunal on the Appeal preferred by Respondent assessee and on that ground, the Appeal has been dismissed.
Appeal dismissed - decided against Revenue.
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2017 (12) TMI 1230 - BOMBAY HIGH COURT
Whether the amount demanded by the Superintendent of Central Excise as duty of Central Excise by a mere letter DD2 without issuance of Show Cause Notice under Section 11A (1) of the Central Excise Act, 1944 and without determination of the Central Excise duty due under Section 11A (2) of the Central Excise Act, 1944 and without granting any opportunity of being heard in the matter is an amount which can be recovered as Government dues under Section 142 of the Customs Act, 1962 as Central Excise duty due to the Government?
Held that: - under Section 142 of the Customs Act, there is a provision authorising authorities under the Customs Act to deduct any sum payable by any person under the Customs Act while ordering payment of any amount under the provisions of the said Act - Perusal of the impugned order of CESTAT shows that the said Tribunal was impressed by the order of dismissal of Writ Petition filed by the Appellant for challenging demand made by the said letter DD2. The CESTAT has not decided the contentions raised by the Appellant on merits. CESTAT has held that as Writ Petition has been dismissed it cannot go into question of legality of the demand made by the said letter DD2. According to us, the said approach of CESTAT is completely erroneous.
There is no option but to set aside the impugned judgment and order and to remand the Appeals to the CESTAT for deciding the same on merits - matter restored.
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2017 (12) TMI 1229 - ALLAHABAD HIGH COURT
Refund claim - period prior to the registration of the respondent - Held that: - The Court herein held that the refund would not be denied to the assessee merely on the basis of non-registration of the premises. This Court in the above decision also held that under the Rules it is not a condition precedent that input service has to be received at registered premises only of the out put service provider. Therefore, merely for the reason that the premises is not registered, that can not be a ground to deny the benefit of CENVAT Credit - appeal dismissed - decided against Revenue.
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2017 (12) TMI 1224 - CESTAT NEW DELHI
Clandestine removal - 2031.421 MT of Sponge Iron - It is pleaded that at the time of visit of the officers to the factory on 04.09.2008, though the stock of finished goods. i.e. Sponge Iron has been checked, no discrepancy were found; that the Department's case is based mainly on the quantity of Iron Ore fed into the kiln, as determined from the entries in the production log registers and the assumption that the Sponge Iron yield of the plant is uniform @ 61% - Held that: - during the course of search proceedings, at the appellant's factory, the department has recovered various documents related to the manufacture of sponge iron i.e. production log register in which the details of feeding of raw material had been recorded. We find that there is no dispute about the fact that such records are recovered from the factory as well as the contents. On the basis of such production log register, the adjudicating authority has determined the total quantum of raw materials which have been used in the manufacture of sponge iron. On the basis of the statements recorded from Production Manager of the appellant, it has been inferred that the normal yield of sponge iron in the manufacturing process is in the range of 57% to 61% of the ore fed into the kiln. Taking the yield to be 61%, the Revenue has estimated the production and demanded duty on the same after deducting the quantity already accounted.
During the course of search of the factory, the department has recovered several documents such as transporters bills, consignment receipt, weighment slips etc. showing receipt of sponge iron despatched from the appellant”s factory as well as records in loose sheets showing the despatch of the finished product to various customers. In some of these cases Central Excise invoices were found to have been issued but in many other cases no Central Excise invoices have been issued indicating, that a large number of consignments have been cleared without payment of duty. On the basis of these incriminating documents recovered by the Department, it is evident that large scale evasion of duty has been done by the appellant.
Opportunity of cross-examination - section 9D of the Central Excise Act, 1944 - Held that: - For satisfying the requirements prescribed in Section 9D ibid, an opportunity for examination and cross examination of witnesses may be extended through an effective hearing to all connected parties. Additional evidence may also be admitted as per law.
The impugned order needs to be set aside and matter remanded to the adjudicating authority - appeal allowed by way of remand.
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2017 (12) TMI 1223 - CESTAT NEW DELHI
Penalty - 100% EOU - CVD and SAD paid wrongly by utilising credit, which was ought to be paid in cash - Held that: - the Machining Division has wrongly paid the CVD as well as SAD by making use of cenvat credit - In terms of Rule 3(4) of the CCR, 2004, Cenvat Credit cannot be utilised for payment of such customs duties. Consequently, there is no infirmity in the view taken by the adjudicating authority that such duty payment is required to be made only through cash and not allowed to be done by making use of cenvat credit - penalty upheld.
Cenvat credit by the Foundry Division of the total duty paid by the Machining Division - Held that: - Cenvat credit was taken wrongly by the Foundry Division since such duty was paid using the cenvat credit account by the machining division and cannot be considered to be payment of duty. The cenvat credit also has been taken on the basis of non prescribed duty paying documents - reversal of such cenvat credit taken alongwith interest and levy of penalties upheld.
Appeal dismissed - decided against appellant.
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2017 (12) TMI 1222 - CESTAT NEW DELHI
CENAVT credit - input services - Engineering Service, Business Auxiliary Service etc. from foreign based service provider - reverse charge mechanism - Held that: - Section 66A of the Finance Act, 1994 was brought into the statute w.e.f. 18.04.2006. After the inclusion of such Section service tax became liable to be paid on specified services received from outside India. But the dispute is of the period prior to this date.
The appellant has paid the service tax on reverse charge basis even for the period prior to 18.04.2006. But such service tax paid cannot loose the colour of tax only because the service tax on reverse charge basis has been held to be payable only w.e.f. 18.04.2006 - Having paid the service tax, the appellant is entitled to cenvat credit thereof since there is no dispute that such services, otherwise satisfy the norm of input service. The fact of payment of service tax is not in dispute and hence, there is no reason to disallow the cenvat credit of such service tax.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1215 - CESTAT CHENNAI
Intermediate goods - benefit of N/N. 67/95 - clearance of intermediate products viz. Acetic Acid, Ethyl Acetate and Anhydride cleared by the appellants to a unit situated in the SEZ without payment of duty in terms of Rule 30 of SEZ Rules, 2005 - Held that: - the issue is no longer res integra and has been settled in favour of the appellant in their own case Trichy Distilleries & Chemicals Ltd. Versus Commissioner of Central Excise, Trichy [2017 (12) TMI 1133 - CESTAT CHENNAI], where it was held that the appellants are very much entitled to the benefit of N/N. 67/95-CE in respect of intermediate goods used to manufacture final products which were supplied to a SEZ unit - appeal allowed - decided in favor of appellant.
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