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Central Excise - Case Laws
Showing 21 to 40 of 4798 Records
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2018 (12) TMI 1771 - CESTAT KOLKATA
Manufacturer of goods - manufacture and supply of Railway Wagon and Bogie components falling under Chapter 72, 73 and 86 of the Central Excise, Tariff Act, 1985 - whether the assessee is to be considered as the manufacturer of the goods supplied by them to Electricity Boards/Railway Wagon manufacturers?
HELD THAT:- Admittedly, goods have been got manufactured by various job workers by payment of job charges and supply of raw materials. After receipt of goods from the job workers, the mandatory inspection by third party Agency has been carried out at the assessee’s premises before supply of the goods to the customers. Further the assesses have represented themselves as manufacturer of the goods before their customers. In these circumstances, the question for decision is whether the assessees are liable to be considered as manufacturer and liable to payment of Excise Duty - Revenue has justified the view that the assessee is the manufacturer with the argument that inspection is an important process without completion of which, the goods do not become marketable, since they cannot be supplied to the customers. The definition of the term “Manufacture” in section 2 (f) includes any process which is ancillary or incidental to the completion of the manufactured product.
Revenue has sought to sustain the view that the assessee is the manufacturer with the submission that they have engaged the job workers, supplied the raw material and supervised the activities there and hence, are to be considered as the manufacturer. Even though, the idea is attractive, it does not merit acceptance. The transformation of the raw material into the final product has been done by the job worker at his premises and hence, the job worker alone is to be considered as the manufacturer and the liability to payment of Excise Duty would be upon him.
The assessees cannot be considered as manufacturers of the goods supplied to Railway Wagon manufacturers as well as Electricity Boards. The respective job workers who have manufactured the goods will be liable to payment of Excise Duty. In this view, there are no infirmity in the order passed by the Commissioner dated 30/11/2012 and hence, it is sustained and all the revenue appeals are rejected.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1760 - UTTARAKHAND HIGH COURT
Permission for withdrawal of appeal - the appellant seeks permission to withdraw the appeal as the appellant intends to pursue a rectification application filed by him.
HELD THAT:- The appeal is dismissed as withdrawn.
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2018 (12) TMI 1755 - CESTAT MUMBAI
Valuation - Chloropyriphos 20 - Hamla - clearance of goods to independent buyers and to toll packers for further conversion - adoption of Rule 8 of the Valuation Rules, 2000 for computation of the additional duty, correct or not - case of appellant is that the provisions of Rule 8 ibid cannot be applied for determination of the transaction value, when the same were sold to the independent buyers - HELD THAT:- By placing reliance upon the Larger Bench judgment in the case of Ispat Industries Ltd. Vs. CCE, Raigad [2007 (2) TMI 5 - CESTAT, MUMBAI], this Bench of the Tribunal has held that the method of valuation adopted by the appellant is correct.
There are no merits in the impugned order passed by the learned Commissioner (Appeals) - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1750 - CESTAT MUMBAI
Benefit of N/N. 214/86 dated 25.03.1986 - Wrongful availment of exemption benefit - parts of boilers were cleared from the factory by describing the same as “Boilers in parts” - N/N. 3/2001 dated 01.03.2001 and 6/2002 dated 01.03.2002 - extended period of limitation - HELD THAT:- The show cause notice dated 27.06.2005 issued to the appellant in the present case had enclosed the annexure, mentioning the details of projects executed by the appellant. On examination of the earlier show cause notice dated 30.03.2005, we find that the same projects were also involved therein, for whom the appellant had executed the assigned job. Since, the adjudication order passed in confirming the proposed duty demand in the said notice dated 30.03.2005 was set aside by the Tribunal, it cannot be said that the department is justified in invoking the extended period of limitation for confirmation of the adjudged demands in the present case.
The charges of suppression, wilful misstatement etc., cannot be levelled against the appellant, justifying issuance of show cause notice beyond the normal period provided under Section 11A ibid.
The impugned order upholding confirmation of the adjudged demand beyond the normal period of limitation cannot be sustained - the appeal is allowed in favour of the appellant on the ground of limitation alone.
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2018 (12) TMI 1729 - SC ORDER
Waiver of pre-deposit - Vires of Section 35F of The Central Excise Act, 1944 - requirement of pre-deposit for entertaining appeal - inherent power of Tribunal to waive off pre-deposit in exceptional cases - it was held in the case that There would be no escape from pre-deposit as the Tribunal lacks the power to entertain the appeal without it - HELD THAT:- The impugned order is upheld.
SLP dismissed.
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2018 (12) TMI 1728 - MADRAS HIGH COURT
Clandestine removal - unaccounted production - Imposition of penalty - non-granting of cum-duty excise benefit to the petitioner - application to Settlement Commission - Section 32F of the Central Excise Act 1944 - HELD THAT:- The petitioner has accepted and voluntarily made the payment towards pass liability to conduct of suppression of production, escaping central excise duty and un accounted raw materials which has also been clandestinely removed to various byers which had escaped the excise duty. The petitioner cannot expect to grant the cum duty benefit while calculating the duty payable by him - Actually, no duty has been included while the petitioner was removing the MS Billets to various customers who purchase from him. In such cases, there cannot be any question of detection of duty where no duty has been actually included in the wholesale price, the Settlement Commission has ordered for rejection for grant of cum duty benefit cannot be interfered with.
Section 32K empowers the Settlement Commission to grant immunity from prosecution and imposed penalty on the assessee who make application under Section 32E before the Settlement Commission for adjudication of the escape excise duty or evasion of excise duty - In the present case, the petitioner who are the manufacturers of MS Billets suppressed 680.987 Mts Billets found un accounted and in excess of the production records shall be lapped with penalty - The petitioner has clandestinely removed the Billets to various of his buyers thereby escaping from the excise duty.
The Settlement Commission exercising its powers under Section 32K of Central Excise Act 1944, imposed the penalty of ₹ 14,00,000 as penalty while granting immunity over the said penalty amount to the petitioner to the gravity offense committed by the petitioner’s company suppressing 680.987 Millets procurement of raw materials and removing the same to various buyers thereby escaping from the duty payable by the petitioner is a very serious offense and the Settlement Commission has imposed 10% of the settled duty as penalty against the petitioner.
This Court do not find any infirmity in such levy of the penalty as against the petitioner and the petitioner cannot claim exemption from the penalty and the Settlement Commission has imposed penalty only after perusing the documents that were seized during the search operation conducted at the petitioner premises factory and sufficient materials and proof were established by the department before the Settlement Commission.
Petition dismissed.
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2018 (12) TMI 1727 - GUJARAT HIGH COURT
Condonation of delay in filing appeal - though the show cause notice is issued in the year 2004 and the response/reply to the same was filed by the petitioners in the year 2005, it has not been adjudicated upon for pretty long 13 years - Short payment of Central Excise Duty - DTA clearances of waste and rejects of fabrics - demand of short paid duty with interest and penalty - HELD THAT:- Since inordinate delay in adjudication proceedings pursuant to the show cause notice for nearly about 14 years is unreasonable, without any explanation, without there being any fault on the part of the petitioners.
Petition allowed.
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2018 (12) TMI 1689 - SC ORDER
100% EOU - valuation of malt manufactured by the assessee and cleared back to the principal manufacturer - job-work - captive consumption - HELD THAT:- There is no ground to interfere - appeal dismissed.
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2018 (12) TMI 1649 - CESTAT ALLAHABAD
CENVAT Credit - Whether the explanations entered in Rule 6(3) w.e.f. 01st March, 2015 would have the effect of the assessee being under a legal obligation to pay duty on the non-excisable goods bagasse and press mud? - HELD THAT:- It was observed that inasmuch as according to Supreme Court’s decision in the case of Union of India v. DSCL Sugar Ltd. [2015 (10) TMI 566 - SUPREME COURT], bagasse has been held to be an agricultural waste or residue, there could be no manufacturing activity. The press mud has also been held to be a waste and not a manufactured product. As such the amendment made in the provisions of Rule 6 would not have any effect to the facts and circumstances of the present case.
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- It stands clarified by the learned A.R. appearing for the Revenue that the amount of duty involved for the month of March, 2015, which is being contested by the Revenue is less than ₹ 20.00 Lakhs - Revenue’s appeal is also required to be dismissed on the basis of Litigation Policy.
Appeal dismissed - decided against appellant.
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2018 (12) TMI 1641 - CESTAT CHANDIGARH
Demand of Interest and penalty - reversal of wrongly availed CENVAT Credit - demand of interest and to impose penalty on the appellant without any appropriation of the cenvat credit amount reversed by the appellant - HELD THAT:- In the case of PUNJAB NATIONAL BANK VERSUS CCE & ST, CHANDIGARH [2017 (1) TMI 1582 - CESTAT CHANDIGARH] the issue came before this Tribunal that without any appropriation of demand, interest cannot be demanded and penalty cannot be imposed and this Tribunal after going through the facts of that case, held that Admittedly, in this case the SCN has not been issued to the appellant to demand of interest only and to impose penalty. As no demand of service tax has sought to be confirmed by way of show cause notice against the appellant, interest and penalty cannot be demanded.
As in this case also there is no appropriation of the demand on account of denial of cenvat credit, in that circumstances, the demand of interest and penalty imposed on the appellant are not sustainable - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1624 - CESTAT ALLAHABAD
CENVAT Credit - input services - construction of residential colony in remote area - period November 2009 to March 2010 - Held that:- All the input services in question incurred for the upkeep and maintenance of the colony is an essential business expenditure and accordingly, Cenvat Credit is allowable under the provisions of Rule 2(l) of the Cenvat credit rules, 2004 - credit allowed - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1579 - MADRAS HIGH COURT
Waiver of mandatory penalty imposable under Rule 15 of the CENVAT Credit Rules, 2004 and/or Section 11AC of the Central Excise Act, 1944 - the issue of quantum of wrong availment of CENVAT credit and differential duty demandable is remanded for determination by the Adjudicating Authority - extended period of limitation - Held that:- The letters produced by the learned Standing Counsel for the appellant dated 17.8.2018 and 29.10.2018 are placed on record. This civil miscellaneous appeal is dismissed as withdrawn and the substantial questions of law raised in this appeal are left open - liberty is granted to the Revenue to make a mention to this Court to restore the appeal to be heard and decided on merits.
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2018 (12) TMI 1577 - CESTAT ALLAHABAD
Interest on delayed refund - Relevant dates - amount was paid under protest - demand of interest for the period between date of deposit under protest till the date of sanctioning of the refund - Held that:- The amount paid by the appellant was under protest during the course of investigation itself. Therefore, the said amount is not paid towards duty and was a deposit by the appellant under protest.
As held by the Hon’ble High Court of Madras in the case of Ucal Fuel Systems Ltd. [2011 (9) TMI 903 - MADRAS HIGH COURT] the provisions of section 11BB of Central Excise Act is not applicable as the amount in question was not paid towards duty, but only by way of deposit during investigation.
The learned Commissioner(Appeals) has rightly sanctioned the refund of interest to the respondent from the date of deposit till the date of refund - appeal dismissed - decided against Revenue.
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2018 (12) TMI 1576 - CESTAT ALLAHABAD
Validity of SCN - Classification of the product - Hajmola Candy - prospective applicability of reclassification - whether the show cause notice dated 10.10.2005 can be issued to the appellant for the period September 2004 to August 2005 or not? - Held that:- Similar issue came up before the Hon’ble High Court of Bombay in the case of Eco Valley Farms & Foods Ltd. [2013 (1) TMI 51 - BOMBAY HIGH COURT] wherein the Hon’ble High Court has held that the re-classification will operate only prospectively from the date of issuance of show cause notice and no demand for the earlier period can be raised.
In the present case, Revenue themselves has accepted the merit classification under chapter heading 1704.90 as sugar confectionary, in that circumstances, the show cause notice cannot be issued for the earlier period and the show cause notice can be issued for prospective period.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1575 - CESTAT ALLAHABAD
Clandestine manufacture and removal - failure on the part of Revenue to establish manufacture of goods in respect of which demand was raised - Held that:- There is no evidence brought forwarded by revenue to establish manufacture - Through the impugned show cause notice Central Excise duty is demanded and the duty of excise is on the activity of manufacture. We note that unless the manufacture is established Central Excise duty cannot be demanded.
The case of revenue is that since the transactions of trading cannot be establish, the entire sales value is treated as value of clearance of goods manufactured by the appellants. We find the same to be pure presumption.
Tribunal in the case of M/s Arya Fibres Pvt. Ltd. [2013 (11) TMI 626 - CESTAT AHMEDABAD] has held that there are certain fundamental criteria to establish clandestine manufacture and removal.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1574 - CESTAT NEW DELHI
CENVAT Credit - by-product - spent sulphuric acid - Rule 6(3) of the Cenvat Credit Rules - Held that:- The explanation inserted in Rule 6(1) w.e.f. 01.03.15 is to the effect that - “for the purpose of this Rule, exempted goods or final products as defined in Clauses (d) and (h) of Rule 2 shall include non excisable goods cleared for construction from a factory.” The said explanation came to be interpreted by the Tribunal in the case of Kichha Sugar Company Ltd. Vs. CCE [2018 (10) TMI 1151 - CESTAT NEW DELHI] and it was held that placing reliance in the case of Union of India vs. DSCL Sugar Ltd [2015 (10) TMI 566 - SUPREME COURT] has held that products like bagasse and press-mud do not qualify the definition of Section 2F of CEA and as such are not being a manufacture. These are only an agricultural waste and residue which itself is not the result of any process and in the absence of manufacture, there cannot be any excise duty.
Demand of reversal do not sustain - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1573 - CESTAT ALLAHABAD
Classification of the product - Ground Natural Calcium Carbonate - whether classifiable under chapter heading 25.30 of Central Excise Tariff Act, 1985 or are classified under chapter heading 2836 of Central Excise Act? - Held that:- On going through the test report, it is found that the product namely “Ground Natural Calcium Carbonate” is altogether different from “Precipitated Calcium Carbonate”, therefore, in the light of the decision of the Tribunal in the case of Shakshi Makfin [2015 (12) TMI 1638 - CESTAT CHANDIGARH], the product in question having merit classification under chapter heading 25.30 of Central Excise Tariff Act, 1985.
The appellant has correctly classified the “Ground Natural Calcium Carbonate” under chapter heading 25.30 of Central Excise Tariff Act, 1985 as Revenue has failed to produce any corroborative evidence in support of their classification - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1534 - MADRAS HIGH COURT
Price escalation clause - liability of excise duty on upward revision of rates - Section 11 D of Central Excise Act - petroleum products - sale of High Speed Diesel and Motor Spirit - Held that:- Whenever, there is upward revision of rates, the amount is collected from the customers, by the Depots. The additional amount recovered, has to be considered, as extra excise duty, which is liable to be paid under Section 11 D of the Act - The appellant cannot be permitted to pay duty, on the rates, prevailing on the date of stock transfer, ignoring the upward revision of rates, which is the price, at which the products to be sold, to the customer.
Arguments of the appellant that they have no control over the Depots, is no answer to avoid the demand, because, it is the duty of the appellant to maintain the records of the amounts received from the Depots, from the sale of High Speed Diesel and Motor Spirit - Amount that are received from the Depots would include the excise duty, collected by the Depots, at the revised rate. The calculation are accounted, against the appellant. Therefore, the appellant alone is liable to pay the differential excise duty, recovered, in terms of Section 11 D of the Central Excise Act.
Appellant, is the consignor of the goods, and the goods are removed from the terminal of the appellant to the depots only on stock transfer. They being the consignors, are responsible, for accounting to the authorities, for payment of excise duty. Admittedly, there is no sale between the terminal and depots. It is therefore, it is the responsibility of the consignor, to produce the sale record on stock transfer of goods, and pay the excess amount of excise duty collected due to upward revision of rates.
Demand upheld - appeal dismissed - decided against appellant.
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2018 (12) TMI 1533 - GUJARAT HIGH COURT
Jurisdiction - power of Joint Commissioner to issue SCN under the provisions of the Central Excise Act, 1944 - Preparation of Draft Audit Report - Held that:- Issue Notice, returnable on 26th December 2018.
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2018 (12) TMI 1532 - CESTAT CHENNAI
Manufacture or not - appellants were purchasing parts, components and assemblies as spares for these vehicles in bulk and selling them after repacking and relabeling in retail / bulk pack from their spare parts division - MRP based assessment as required under Section 4A (2) of Central Excise Act, 1944 not followed - opportunity to cross-examine not given - reliability on statements - section 9D of the Excise Act.
Held that:- There was no justifiable reason for non-conduct of the verification process when the appellant’s manufacturing premises were still in Hosur. Such laches will therefore not only preclude the Revenue from wriggling out of responsibility for conduct of the verification process, but at the same time put a question on the stand of the department that activity of appellant only amounted to „manufacture‟, which issue per se had been remanded by the Tribunal for de novo verification - Even more surprising however, is the adjudicating authority’s outright refusal to grant cross-examination in spite of the clear remand instructions of the Tribunal.
Principles of natural justice - opportunity to cross-examine - Held that:- The necessity of strictly complying with the provisions of Section 9D of the Central Excise Act, 1944, including the requirement for grant of cross examination, has been consistently reiterated by higher appellate forums - the directions of the Tribunal in the earlier final order dt. 16.11.2009 has not been complied with and has only been followed in the breach. In consequence, appellants surely have been denied natural justice and opportunity to establish their credentials and case.
The proceedings which have seen two rounds of litigation had commenced by way of issue of first SCN No.29/2008 dt. 10.4.2008. More than a decade has passed by, without any sign of resolution of the allegations raised by the department. The opportunity given for causing verification of the activity of the appellants was frittered away only due to quasi-judicial lethargy. The directions for granting cross examination was also not honoured - we find no purpose would serve by once again causing remand of the matter to the adjudicating authority.
The impugned order cannot then sustain and will have to be set aside - appeal allowed - decided in favor of appellant.
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