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Central Excise - Case Laws
Showing 41 to 60 of 4797 Records
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2018 (12) TMI 1531 - CESTAT MUMBAI
CENVAT Credit - capital goods or not - TMT Steel and PP Cement - credit reversed on being pointed out - demand of interest for delayed reversal of credit - imposition of penalty - Held that:- The fact is not under dispute that the disputed goods were used by the appellant in the fabrication of structure of capital goods namely sugar mill machinery, boiler house, power generation and power house, which are essential plants for ultimate manufacture of the final product - The period in dispute is from April 2006 to December 2007, which was covered under the un-amended definition of input (effective up to 7th July 2009).
Under such un-amended provisions of Rule 2 (k) of the rules, there were restrictions for not allowing the Cenvat benefit on those structural items - Since specific restrictions were brought into the definition clause only with effect from 7th July 2009, Cenvat benefit on such disputed goods cannot be denied for the period prior to such effective date.
Retrospective applicability of the definition of input contained in Rule 2 (k) of the Rules - Held that:- Though the Larger Bench of this Tribunal, in the case of Vandana Global Limited [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)], has upheld the views expressed by Revenue, but the Hon’ble Chhattisgarh High Court in the case of said appellant M/S VANDANA GLOBAL LIMITED AND OTHERS VERSUS COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, CENTRAL EXCISE [2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT] by relying on the Gujarat High Court judgment in the case of Mundra Ports & Special Economic Zone Ltd. [2015 (5) TMI 663 - GUJARAT HIGH COURT], has held that in absence of any specific mention about the retrospective application of the definition of input, the same should be considered as prospective in effect.
Credit cannot be denied - demand set aside - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1530 - CESTAT ALLAHABAD
Clandestine removal - reliability on statements - corroborative evidences - Held that:- Commissioner(Appeals) has admitted that there is no other corroborative evidence to establish clandestine removal except for the statement of Shri Rakesh Jhindal, who was Managing Director of the Manufacturing unit - Tribunal in the case of Rimjhim Ispat Ltd. and Others [2018 (8) TMI 477 - CESTAT ALLAHABAD] have held that only on the basis of statement clandestine removal cannot be established - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1529 - CESTAT AHMEDABAD
CENVAT Credit - shortage recorded on the basis of stock taking - whether the cenvat credit in respect of shortage recorded on the basis of stock taking done by the appellant themselves in their factory is required to be reversed or otherwise? - Held that:- The same issue in the appellant’s own case COMMISSIONER OF CENTRAL EXCISE, CUS. & S. TAX, RAIGAD VERSUS M/S. CASTROL INDIA LTD [2018 (3) TMI 763 - CESTAT MUMBAI] has been decided by this Tribunal whereby the demand raised on such theoretical shortage was set aside.
The impugned order is not sustainable - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1528 - CESTAT AHMEDABAD
CENVAT Credit - removal of capital goods after use - demand of reversal of cenvat credit availed at the time of receipt of the capital goods - Rule 3(5) of Cenvat Credit Rules, 2004 - Held that:- From the plain reading of Rule 3(5), it is clear that duty on removal of capital goods required to be paid only in two cases i.e. if the capital goods is cleared as such without putting to use and capital goods is cleared as waste and scrap - There is no provision under Rule 3(5) or in any other Rule to demand duty if capital goods are cleared after use, therefore by invoking Rule 3(5) duty demand on the removal of capital goods as such cannot be made.
Appellant is not required to pay duty on removal of capital goods as such - Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1527 - CESTAT MUMBAI
CENVAT Credit - service tax paid by job-worker - reverse charge mechanism - reopening of assessment at the end of service recipient - Held that:- It is not disputed that the job worker has paid the service tax. The credit of tax “paid” is available to the recipient and the law does not talk about the tax payable. As such, the job worker having paid the tax, whether payable or not, the appellant was entitled to the credit.
The assessment cannot be reopened at the recipient end as held by number of decisions of the Tribunal - reliance placed in the case of Ultratech Cement Ltd. [2010 (12) TMI 90 - CESTAT, MUMBAI].
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1479 - BOMBAY HIGH COURT
CENVAT Credit - input services - Group Insurance Health Policy - Real Estate Agent Service - Event Management Service.
Group Insurance Health Policy - Held that:- On a plain reading of the definition of input services in Rule 2(1) of CENVAT Credit Rules ,2010 as is in existence during the period from April, 2003 to March, 2011, the amounts paid to the Insurance Companies for Insurance of the employees is input service. This is particularly, so as there is no exclusion clause therein, as was provided by the amendment in April, 2011 - taking of Insurance for the employees used in providing output service as it enables the employee to work with a peace of mind - credit allowed.
Real Estate Agent Service - Held that:- The services of a Real Estate Agent is obtained by the Respondent. This for the purpose of allotting accommodation to its employees when posted at a particular station - This services would be covered by the definition of input services under Rule 2(1) of the CENVAT Credit Rules. These services enable the Respondent to keep its personnel available to provide services at a particular station. Thus, it has a nexus to the output services being provided by the Respondent - Credit allowed.
Event Management Service - Held that:- These events are held/ organized by the Respondent to target people with high net worth so as to attract/ retain them as their constituents. Thus, these services are in the nature of sales promotion service and would eonomine fall within the inclusive part of definition of input service provided in Rule 2(1) of Cenvat Rules - credit allowed.
Appeal dismissed - decided against Revenue.
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2018 (12) TMI 1478 - CESTAT BANGALORE
CENVAT Credit - inputs/capital goods - M.S. Angles, Joists, Channels, M.S. Plates/sheets, etc. used for fabrication of supporting structures for the equipments - time limitation - Held that:- The appellants have proved that they have used these impugned items for support of capital goods which is essential for use of capital goods - Since the impugned items have been used for supporting structure of the machinery, therefore, the appellants are entitled to CENVAT credit on the same.
Time Limitation - Held that:- The entire demand is also barred by limitation because the period in dispute is June 2006 to November 2008 whereas the show-cause notice has been issued on 6.4.2011 - no mala fide can be attributed to the assessee and longer period of limitation would not be available to the department.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1477 - CESTAT BANGALORE
CENVAT Credit - input services - construction services - alteration and extension of railway track - locomotive engine servicing charges - Held that:- The issue involved in the present case is covered by the Division Bench decision of this Tribunal in the case of Jaypee Rewa Plant [2018 (9) TMI 633 - CESTAT NEW DELHI], where it was held that the railway track laid by the Appellant (which connects the railway siding outside the factory with the siding inside the factory) shall have to be treated to have satisfied the condition of ‘used in the factory’ and credit is allowed.
The impugned order denying the CENVAT credit on the railway sidings or alterations of sidings and extension of siding is not sustainable - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1476 - CESTAT BANGALORE
CENVAT Credit - input services - Engineering Designs and Drawings for civil and structural works in respect of Special Alumina Expansion Project services - Held that:- In view of the Purchase Order and the various invoices issued by DCPL (Development Consultants Private Limited, Kolkata), it is found that the service provided by them are not construction service and are not covered under exclusion clause of Rule 2(l) of the Cenvat Credit Rules which only excluded specific services relating to construction service or works contract service when used in or in relation to construction of a building or a civil structure or a part thereof.
The services rendered by DCPL is only relating to Drawing or Design and Consulting Engineer’s Services whereas the construction services have been rendered by some other person and the DCPL are not concerned with the construction activity at all - further, the definition of ‘input service’ is very wide and includes inputs used in or in relation to the manufacturing activity.
Credit cannot be denied - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1475 - CESTAT MUMBAI
SSI Exemption - benefit of N/N. 8/2003-CE dated 01.03.2003 - availing of simultaneous of benefit under N/N. 8/2003 CE and CENVAT Credit in respect of the goods cleared on payment of duty - whether simultaneous availment of CENVAT Credit in respect of the inputs used in manufacture of dutiable final products viz Branded Goods and SSI exemption under N/N. 8/2003=CE dated 01.03.2003 as amended is permissible or not? - Difference of opinion.
Held that:- There is a difference of opinion - the difference of opinion is on the point: Whether the appeal has to be rejected as held by Learned Member (Technical) or the same has to be allowed as held by Learned Member (Judicial)?
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2018 (12) TMI 1474 - CESTAT MUMBAI
Refund of excess amount of duty paid - goods were cleared to their depots on stock transfer basis - Section 4(1)(a) of the Central Excise Act, 1944 - extended period of limitation - whether the duty short paid by the appellant amounting to ₹ 6,44,517/- during the period from July 2005 to March 2005 would be adjusted against the refund of ₹ 10,79,333/- claimed by the appellant for excess amount of duty paid? - Held that:- The adjudicating authority has categorically held that the self assessment undertaken by the appellant was on provisional basis. Also, from the records, particularly the letter dated June 2001 and the ER-1 returns filed from time to time to the department, the appellant has categorically claimed that their assessment was provisional and no communication was addressed by the Revenue denying the said facility of assessment on provisional basis.
There is no merit in the observation of the learned Commissioner (Appeals) that the assessment was since not provisional, therefore, the appellant is not entitled to adjust the duty short paid against the amount excess paid during the particular period of assessment - the appellant is entitled to adjust the duty short paid during the relevant period with that of excess paid - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1473 - CESTAT MUMBAI
Demand of duty short paid - extended period of limitation - appellants did not follow the proper procedure as per Central Excise Rules, 2002 and retained/ destroyed the sample without payment of appropriate Central Excise duty leviable on these samples and thereby short paid the duty to that extent - Section 11A(1) of the Central Excise Act, 1944 - Held that:- The issue involved in the matter is squarely covered by the decision of larger bench of Tribunal in case of Dabur India Ltd, [2005 (2) TMI 166 - CESTAT, NEW DELHI], where larger bench has considered all the arguments and ruled in the favour of assessee holding that no duty is required to be paid in respect of such samples drawn for quality control purpose.
Since we are deciding the appeal on merits itself we are not considering the other grounds taken by the appellant in their appeal and during arguments.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1472 - CESTAT MUMBAI
EOU - clearance of final products in domestic tariff area, without payment of duty - benefit of N/N. 30/2004-CE, dated 9.07.2004 - recovery of short paid duty - difference of opinion.
Held that:- There is a difference of opinion - the point of difference is: Whether the appeal has to be rejected on merits as held by Hon'ble Member(Technical) or the matter has to be referred to larger Bench as observed by Hon'ble Member(Judicial)?
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2018 (12) TMI 1471 - CESTAT MUMBAI
Refund of MODVAT Credit - refund rejected on the ground of time limitation - Whether the Commissioner (Appeals) was right in rejecting the refund claim on merits also when the Assistant Commissioner has not done so? - difference of opinion.
Held that:- There is a difference of opinion - the difference of opinion is on the point: Whether the appeal has to be rejected in toto as held by the learned Member (Technical) or the matter has to be remanded to the original adjudicating authority for fresh decision as observed by the learned Member (Judicial).
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2018 (12) TMI 1470 - CESTAT MUMBAI
Valuation - includibility - inclusion of automobile cess in their input value - demand of duty short paid - CENVAT Credit - extended period of limitation.
Held that:- The issue is squarely covered by the decision of Apex Court in case of Daichi Karkaria [1999 (8) TMI 920 - SUPREME COURT OF INDIA], where it was held that In determining the cost of an excisable product covered by the Modvat scheme under Section 4(1)(b) of the Act read with Rule 6 of the Valuation Rules the excise duty paid on raw material also covered by the Modvat scheme is not to be included.
The issue in the present case is not in respect of manner of collection of automobile cess but is in respect of the admissibility of Cenvat Credit on the said automobile cess. Automobile cess is a cess collected by the department of labour in the Ministry of Industries and is levied under Industries (development and Regulation), Act, 1951 read with Automobile Cess Rules, 1984 - Since automobile is not Cenvatable, in view of the decision of the Apex Court in case of Dai Ichi Karkaria, the same needs to be added for determining the assessable value of the finished goods cleared by the appellant.
CENVAT Credit - automobile cess - Held that:- In terms of Rule 3 of the Credit Rules, a manufacturer is entitled to avail Cenvat credit only of excise duty as mentioned under the Excise Act, specified additional duties and also of education cess, national calamity contingency duty, etc. Cenvat credit is also available on all of the above duties paid during the time of import. However, the cess levied under various other acts, though collected as in manner similar to excise duty in the respective acts, is not in the list of duties eligible for Cenvat credit - None of the authorities cited by the appellant have stated in respect of admissibility of CENVAT Credit in respect of the automobile cess. Thus the submission of the appellant in this respect is not tenable.
Time Limitation - Held that:- The issue of inclusion of the taxes and fees which were not Cenvatable has been decided by the Apex Court in case of Dai Ichi Karkaria in the year 1999. After the said decision, there can be no justification for non inclusion of the same in assessable value. Appellant cannot claim that they were under bonafide belief that the said automobile cess was not includable after the decision of the Apex Court - Further all these details were not made available to the department while filling the returns. Hence there was suppression of material facts from the revenue with the intention to evade, accordingly demand of duty short paid by invoking extended period of limitation cannot be faulted in the present case - thus, extended period of limitation has been correctly invoked for demanding the duty short paid.
Demand of Interest and penalty - Held that:- Demand for interest is natural consequence of the delay in payment of the duty from the due date. Since the duty as determined under Section 11A(2) has been short paid on the due date, demand for interest under Section 11AB cannot be faulted with - Since we have held that necessary ingredients to invoke extended period of limitation are present in the case, penalty under Section 11AC read with rule 25 of the Central Excise Rules, 2002 justified - interest and penalty upheld.
The benefit of proviso to Section 11AC extended to them for discharging the liabilities adjudged against them in respect of duties, interest and penalty.
Appeal allowed in part.
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2018 (12) TMI 1469 - CESTAT MUMBAI
Valuation - scrap - Appellants have worked out the waste generated as 0.2% department contended it to be 1% - demand of duty on excess quantity - Held that:- This is unique case where the revenue has issue the notice claiming that the total waste generated, is much higher than the waste as claimed o be generated by the assessee. It is not the case of the department that total of finished products and waste generated is not in accordance with the raw material received and consumed by them. In case if there was any difference, then why should duty not be demanded on the finished good.
Appellants have in fact paid the duty on the waste as actual cleared by them. When they have paid the duty on the waste cleared by them, and range officer has determined that actual waste generated was only 0.027%, then where is question of any further demand being made by arriving at imaginary percentage of waste generation as 1% or 0.137% - Appellants have themselves, classified and paid the duty on the waste cleared by them. The goods cleared by them were actually marketed or sold by them and they have paid duty on the actual transaction value in respect of these sale. Once having accepted that the goods were marketed by them the appellants could have not claimed in any subsequent proceedings that department has not established the marketability of the said goods or classification of the same.
Since the appellants have paid the duty on the actual quantum and the value of clearances there cannot be any further demand on the basis of imaginary or hypothetical figures - Further with effect from 1st July 2000, with the introduction of transaction value concept in Section 4 of the Central Excise Act, 1944, duty has to be determined on the basis of actual transaction value and not on the basis of any “contemporaneous value” as has been held by the Commissioner (Appeal).
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1424 - SC ORDER
Rebate claim - export related benefits - rule 16 of CER - manufacture of biscuits - Held that:- There are no ground to interfere with the impugned order(s) - SLP dismissed.
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2018 (12) TMI 1423 - GUJARAT HIGH COURT
Rebate claim - rejection on the ground that the EOUs do not have option to pay duty and thereafter claim rebate of duty paid - revenue neutrality - Held that:- Issue Notice returnable on 27th December, 2018. By way of ad-interim relief, the respondents are restrained from making any coercive recovery against the petitioner pursuant to the impugned order.
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2018 (12) TMI 1422 - MADRAS HIGH COURT
Lapse of credit in case of exempted goods - Review of order - Section 35 EE of the Central Excise Act, 1944 - rebate claim - alleged erroneous refund of rebate of taxes on the duty paid export goods in terms of Rule 18 of the Central Excise Rules, 2004 - Held that:- Unless it is demonstrated or held that the effect of the Notification No.10/2007 CE-NT dated 01.03.2007 is retrospective in character which does not assert so, the availing of lying cenvat credit, while choosing to avail exemption, for payment of duty on export goods against claim of rebate of duty under Rule 18 of the Central Excise Rules, 2002, is in accordance with law, until the introduction of Rule 11(3) of Cenvat Credit Rules on 01.03.2007 - It may be noted that the sanction and payment of the alleged rebate claims pertain to payment of duty by availing cenvat credit during the period 10.06.2007 to 31.07.2007. When the amendment was made on 01.07.2017, the petitioner was already availing exemption. It is to be noted that the provision apply only in transitional situation when the assessee opts to stop payment of duty and avail exemption.
The question of reversal does not arise. In effect, the amendment to Cenvat Credit Rules, 2004 by the insertion of Rule 11 (3) will operate only on tax paying assessees who opt to avail exemption on or after 01.07.2007 - the impugned Orders in Review 06.03.2013 are liable to be set aside - Petition allowed.
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2018 (12) TMI 1421 - BOMBAY HIGH COURT
Maintainability of appeal - Section 35B (1) of the Central Excise Act, 1944 - Whether the CESTAT was justified in holding that the Communication dated 18.03.2015 from the Superintendent is NOT Decision or Order? - Held that:- The impugned order of the Tribunal has on perusal of the letter dated 18th March, 2018 received by the Superintendent of Central Excise held that it does not decide any lis for the purpose of holding it to be an appealable order. This finding is a possible view on facts and circumstances of the case and cannot be said to be perverse.
The question proposed does not give rise to any substantial question of law - appeal dismissed.
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