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Central Excise - Case Laws
Showing 61 to 80 of 4797 Records
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2018 (12) TMI 1420 - CESTAT MUMBAI
Rectification of mistake - the order of the Tribunal records the date of hearing to be 13th December 2017, as it is in the application herein, but the date of decision is the same day whereas the ground of application indicates a different day - Held that:- There is material error in the application, it is not possible for us to accept that the application is in order. Moreover, it was open to Learned Counsel to have any mistakes rectified at the time of dictation of the order in Court. Failure to do so precludes a plea against deficiency in the findings of the said Tribunal.
Application for ROM rejected.
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2018 (12) TMI 1419 - CESTAT MUMBAI
Rectification of mistake - errors apparent on the face of record - section 35C(2) of Central Excise Act, 1944 - Held that:- The present applicant does not differ with, or controvert, any of the facts that were recorded in the order of the Tribunal. The appeals had been filed by Revenue against the order of the first appellate authority. The applicant herein had not filed any cross-objections in response to appeal of Revenue. For that reason, the respondent therein was denied the opportunity of raising issues that had have been within the consideration of the lower authorities.
The procedure of disposal of appeals cannot be converted into an appeal with fresh submissions on the part of the respondent therein.
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2018 (12) TMI 1418 - CESTAT MUMBAI
Demand of Interest and 50% penalty - payment of duty liability on being pointed out - clearance of manufactured excisable goods namely castings between the period from 10.03.2013 to 30.09.2013 - Rule 8 (3A) of the Central Excise Rules 2002 - Held that:- It is found even from the SCN that assessee has discharged the duty liability much before the issue of show-cause notice and GAR detail challan - Appellant was put to show-cause notice for imposition of penalty under Section 11AC of the Central Excise Act 1994. In para 22 of the order of the adjudicating authority, he noticed no suppression of fact and only found non compliance of Rule 8 of Central Excise Rules 2002 for which he gave his finding that there is default in payment of duty which renders the appellant liable for penalty under the provision of Rule 8 (3A) of the Central Excise Rules 2002 as the Rule itself specifies such penalty which is read with Section 11AC of the Act.
Penalty being a criminal remedy to set right a defaulter which is to be proved by the prosecution itself beyond all reasonable doubt, in the absence of any such finding regarding fraud, collusion, wilful misstatement or suppression of fact or contravention of the provisions of this Act or Rules penalty under Section 11AC is not attracted.
The order of the Commissioner (Appeals) imposing 50% penalty on the appellant for not discharging duty liability of ₹ 26,34,931/- along with applicable interest is hereby set aside - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1417 - CESTAT MUMBAI
Suo motu availment and utilisation of CENVAT credit - refusal of rebate claim - Rule 18 of Central Excise Rules read with Notification no. 19/2004-CE.(NT) dated 06.09.2004 - Held that:- Admittedly, N/N. 19/2012-CE(NT) dated 06.09.2004 provides for the procedure to be followed in claiming of rebate to central excise authorities or by electronic declaration where no time limit is prescribed. As found from the explanation to Section 11B of the Central Excise Act, refund includes rebate of duty of excise on excisable goods exported out of India and 11(1)(B) restricts such filing of refund before the expiry of one year from the relevant date and relevant date indicates, in the case of appellant, the date of shipment and not the date of payment of duty.
Cnsidering the fact that appellant had expressed its intention to the department, requested in writing to follow the procedure by way of recrediting cenvat credit account of the disputed account and did wait for one and half years as well as issued two remainders to the department and thereafter taken suo motu credit, it cannot be said that it had intention to contravene any of the provisions of rule or act for which it shall be penalised. It can be recorded as its erroneous understanding of procedural law by the appellant.
Penalty is set aside - rest of demand upheld - appeal allowed in part.
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2018 (12) TMI 1360 - CESTAT ALLAHABAD
Credit of cess paid on the counter veiling duty - Extended period of limitation - Held that:- Admittedly the credit was being availed by the assessee by reflecting the same in their statutory records. The said fact was also declared by the appellant in their returns filed with the Revenue. Mere non-payment of tax or wrong availment of credit by itself, cannot lead to be a mala fide intent on the part of the assessee - It is well settled law that for invocation of longer period, Revenue has to produce evidence on record that any suppression or mis-statement by assessee was with a mala fide intention.
In the present case, there was not even any suppression on the part of the assessee inasmuch as he was disclosing the fact of availment of credit to the Revenue - the demand is barred by limitation.
The demand of duty along with imposition of penalty is set aside except the part which may fall within the limitation period - appeal allowed in part.
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2018 (12) TMI 1359 - CESTAT ALLAHABAD
Valuation - manufacture of Gutkha pouches - Department was of the view that since, on the same machine, in addition to the Panmasala pouches of RSP of ₹ 3, the pouches of the RSP of ₹ 2 were also manufactured, first proviso to Rule 8 of the PMPM Rules would become applicable - Held that:- The undisputed facts are that during each of the four months - August 2009, September, 2009, October, 2009 and November, 2009, the appellant in Form -I declaration for that month filed by them in terms of Rule 6 of the PMPM Rules, had clearly declared that they would be using one packing machine for manufacture of the retail pouches of panmasala and that machine would be used for manufacture of the retail pouches of ₹ 2 as well as ₹ 3 RSP.
The first proviso to Rule 8 becomes applicable when on an existing packing machine, the manufacturer commences manufacture of the “goods of a new RSP” during that month and in such a situation, this has to be treated as an addition in the number of operating packing machines for the month or in other words, that machine would have to be treated as two machines. The dispute is as to what is a "new retail sale price". The new retail sale price would mean the retail sale price which had not been declared in respect of that machine in the Form-I declaration.
Identical issue decided in the case of M/S. KAY PAN SUNGANDH (P) LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2017 (4) TMI 982 - CESTAT NEW DELHI], where it was held that Rule provides that if the manufacturer commences manufacturing of the goods of a new retail sale price during the month on an existing machine, it shall be deemed to be an addition in the number of operating packing machine for the month.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1300 - BOMBAY HIGH COURT
Input tax distribution - intellectual property rights and I.T. software services were to he used by all the units of the respondent and not restricted only to the Pune unit - It is the case of the Revenue that the respondent-assessee should have distributed the tax credit to the various units situated across the country and should not have availed CENVAT credit only at Pune - Held that:- Both provisions give an option to the assessee concerned whether to distribute input services tax available to it amongst its other manufacturing units which are providing output services. This is evident from the use of word “may distribute the CENVAT credit” is found in Rule 7 both prior and also post 2012. Thus, from the reading of the Rules, the option was available to the assessee whether to distribute the CENVAT credit or not - on plain reading of Rule 7 as existing both pre and post amendment 2012 covering period involved in these proceedings, the respondent - assessee was entitled to utilize the CENVAT credit available at its Pune unit.
The Tribunal, on facts found that the entire exercise would be revenue neutral. This is so as the distribution of Cenvat Credit to the various units would result lesser service tax being paid by cash on their activity of coating as they would have utilized the cenvat credit available for distribution - the question of law as proposed does not give rise to any substantial question of law as the entire exercise would be revenue neutral - appeal dismissed.
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2018 (12) TMI 1292 - BOMBAY HIGH COURT
Restoration of appeal - appeal was dismissed for non-deposit of the statutory amount - Section 35F of the Central Excise Act, 1944 r/w Section 83 of the Act - Held that:- Where an appeal is dismissed for non-deposit and such deposit if made within a reasonable time of dismissal then, the appellate authority should exercise its inherent power to recall the order of dismissal and hear the petitioner's application on merits. This is a procedural review and not a review on merits of the case - Therefore, even in the absence of such power of recall being provided in the statute, every quasi judcial authority has inherent powers to exercise this power of recall in its inherent jurisdiction in the interest of justice.
The appeal of the petitioner is restored to the file of respondent no.2 – Commissioner (Appeals).
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2018 (12) TMI 1291 - BOMBAY HIGH COURT
Revenue appeal - Monetary limit - Recovery of CENVAT Credit - Can the department without pointing out applicability of any of the exceptions in circular dated 11th July, 2018 of CBIC, continue to press the appeal on merits? - Held that:- As is well known by way of its policy for reduction of litigation, the Central Board of Direct Taxes i.e. CBDT and CBIC have been issuing circulars from time to time instructing the department not to file and in some cases if so filed, not to press appeals before Higher Authorities, Tribunal, High Court or Supreme Court as the case may be unless the tax effect involved is higher than the minimum threshhold respectively prescribed in such circulars - In the present case, we are governed by the latest circular of CBIC dated 11th July, 2018.
Circular is issued in exercise of powers under Section 35R of the Central Excise Act, 1944, which pertains to appeal not to be filed in certain cases. Subsection (1) of Section 35R provides that the Central Board of Excise and Customs may from time to time issue orders or instructions or directions fixing such monetary limits as it may deem fit for the purposes of regulating the filing of the appeal, applications, revision or reference by the Central Excise Officers under the provisions of Chapter VIA of the Central Excise Act, pertaining to appeals. Thus, this circular has a statutory force.
In the present case, the department does not point out that the monetary limit is higher than one prescribed by CBIC in its circular dated 11th July, 2018 or that the case falls within any of the exceptions provided in the circular dated 17th August, 2011. The letter of the Assistant Commissioner, Raigad to the counsel for the department only conveys that it is wholly discretionary within the powers of the Commissioner whether to withdraw certain appeal or not - If the tax effect is less than the monetary limit prescribed, the department can pursue the appeal only it falls in any of the exceptions; not otherwise. This would give rise to wholly arbitrary application of the Government policy which is simply not permissible in law. Excepting the stand of the department would permit the authorities to withdraw appeals against one assessee, whereas without citing any reasons, pursue the appeal against the another assessee situated identically as the former.
The appeal is dismissed as involving low tax effect.
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2018 (12) TMI 1290 - BOMBAY HIGH COURT
Aggrieved party - Whether in the facts and circumstances of the case and in law, the CESTAT was correct in dismissing the appeal filed by the Appellant on the ground that the Appellant is not aggrieved party but it is IIMT which is the aggrieved party when the Appellant is running the institute (IIMT) as part of its trust activities?
Held that:- Once the matter was sent back by the Commissioner (Appeals) and thereafter the OrderinOriginal was passed on 14.02.2014, then, the merits of both orders are before the Tribunal. The Tribunal refrains from going into the merits of the matter and rests its finding on a technical issue of maintainability. When the Tribunal was aware that it's bounden duty was to scrutinize the orders brought before it on merits and adjudicate the issue of taxibility, then, it should not have indulged itself and wasted its time on such technical matters which do not go to the root of the case at all.
Both appeals are restored to the file of the Tribunal for adjudication on merits and in accordance with law - appeal allowed.
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2018 (12) TMI 1289 - CESTAT HYDERABAD
Rectification of mistake - Held that:- The mistake that is sought to be corrected is in Paragraph 5 - The application for rectification of mistake is disposed off.
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2018 (12) TMI 1288 - CESTAT BANGALORE
CENVAT Credit - applicability of Rule 6 of CCR - Manufacture of electricity - case of appellant is that electricity being non-excisable goods is not exempted goods and therefore the provisions of Rule 6 of CCR are not applicable - Held that:- Electricity, though listed in the Tariff, but is not excisable goods - further, electricity is not an exempted goods and there is no manufacture of exempted goods in the present case and therefore the demand under Rule 6(1), (2) and (3) of CCR are not applicable.
Board has also clarified the issue vide instruction dt. 23/12/2013 wherein it has been opined that in the case of manufacture of non-excisable goods, Rule 6 would not attract - also, in the case of UOI Vs. DSCL Sugar Ltd. [2015 (10) TMI 566 - SUPREME COURT], the Hon'ble Supreme Court has held that Bagasse is not excisable goods, there being no manufacturing process, hence Rule 6 of CCR is not applicable.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1287 - CESTAT BANGALORE
CENVAT Credit - demand of 6% of the value of exempted goods supplied to the subsidiary of BARC - demand confirmed in the absence of certificate required to be produced by the appellant to show that he has actually reversed the CENVAT credit relating to the manufacture of exempted goods which were sold to the subsidiary of BARC - Held that:- Since the appellant has produced the certificate which was not there before the Commissioner (Appeals), I remand the case back to the original authority to consider the said certificate to find out the reversal of CENVAT credit attributable to the manufacture of exempted goods - appeal allowed by way of remand.
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2018 (12) TMI 1286 - CESTAT HYDERABAD
Rectification of Mistake - Held that:- The figures mentioned in the above reproduced para seem to be incorrect after going through the Order-in-Original in the case in hand - here is an error apparent on the face of the record, which is rectified - application for ROM allowed.
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2018 (12) TMI 1241 - MADRAS HIGH COURT
Restoration of appeal - praying for restoration of appeal was made with a delay of about 5 years - non compliance with the condition of pre-deposit - Held that:- If the legal position wipes out substantial liability or entire liability, as, according to the appellant, construction of residential complex by a builder was subjected to service tax only from 01.7.2010, this vital point has to be considered by the Tribunal and if this plea is acceptable, it goes without saying that the appellant made out a strong prima facie case. Hence, we are constrained to interfere with the impugned order, however, subject to a condition.
The appellant had already pre-deposited ₹ 7 lakhs. If the appellant complies with this condition within the time stipulated by us in this judgment, then the two miscellaneous applications shall stand automatically restored to the file of the Tribunal and the Tribunal shall take a fresh decision in both the applications and more particularly in the application for modification of the stay order - appeal allowed.
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2018 (12) TMI 1240 - MADRAS HIGH COURT
Condonation of delay in filing appeal - Time Limitation - service of order - Section 37C of the Central Excise Act, 1944 - Held that:- Tribunal could have examined the matter on merits. Since very often, several appeals are filed before this Court by the Department with delay of more than 300 days. In case, the delay in presenting the papers also is more than 200 days, yet the Court exercises its discretion and condone the delay, so that the parties can agitate the matter on merits and a decision can be taken on the questions of law raised - Law of limitation is founded on principles of public policy so as to attach penalty to a proceeding. Limitation is not intended to destroy the rights of parties. No prudent man would purposely lodge an appeal belatedly, unless and until the person has some mala fide intention to do so.
The substantial question of law is answered in favour of the assessee - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1239 - KARNATAKA HIGH COURT
Monetary limit involved in the appeal - notification - F No.390/Misc./116/2017.JC dated: 11.07.2018 - Held that:- The present appeal is not maintainable now due to the tax effect involved in the present case being less than the prescribed monetary limit of ₹ 50,00,000/- and that the present case does not fall under the exception category of Notification dated 17.08.2011 referred in paragraph No.4 of the aforesaid Instructions dated 11.7.2018. Therefore, present appeal may permitted to be dismissed as withdrawn/ not pressed.
The appeal filed by Revenue is dismissed as withdrawn/not pressed.
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2018 (12) TMI 1238 - CESTAT NEW DELHI
CENVAT Credit - input service distribution - sub-rule (d) of Rule 7 of Cenvat Credit Rule, 2004 - Held that:- Since it is an undisputed fact that the appellant’s head office is situated at Delhi and their factory at Bhiwadi and that head office is designated as Input Service Distributor (ISD), also there is no dispute on availment of cenvat credit at ISD level, it is observed that the services on which cenvat credit is denied are covered by various decisions.
The amount of cenvat credit as has been denied by the adjudicating authority merely for want of documents is not sustainable in view of the settled proposition of issue - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1237 - CESTAT NEW DELHI
Clandestine removal - Goa 1000 Gutkha - appellants were given inspection of all the documents relating to the case, and an inference is drawn on the basis of these letters, ignoring the letters and submissions of the appellant and without providing copies of these 3 letters - principles of natural justice - Held that:- No evidence of clandestine manufacture and or removal of gutkha from the appellant’s factory at Jodhpur has been adduced in the notice. Though Appellants factory at Jodhpur was searched on the very first day of the investigations, no evidence of clandestine manufacture and or removal, or any excess shortage of any raw material (except a very negligible variation) or finished goods were noticed. No evidence whatsoever was found, showing unaccounted transportation of goods from the Jodhpur factory of the appellant.
In the entire investigation no evidence of clandestine manufacture or removal of Gutkha or unaccounted receipt of any raw material /packing material in the appellant’s factory required for clandestine manufacture & sale of Gutkha could be brought to light except the recovery of certain documents from the office of Raj Group of companies in Thane allegedly showing procurement of raw materials. Even these evidences recovered from one Mr. Suresh B. Jajra, during corss-examination were revealed to be pertaining to M/s. Royal Marwad, Ahmedabad and Meenakshi Foods Pvt. Ltd. other franchisees engaged in the manufacture of Goa 1000 Gutkha.
Revenue have not corroborated its allegations with sufficient reliable evidence - the allegations in the show cause notice are based more on assumptions and presumptions, having no legs to stand - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1236 - CESTAT HYDERABAD
CENVAT Credit - duty paying invoices - invoices issued beyond the six months from the date of invoice - sub-rule (1) of rule 9 of the CENVAT Credit Rules - Held that:- What is required is that that the appellant has to take credit within six months and the fact that they have taken credit within six months only gets reflected in their ER-1 returns. Otherwise, the department has no way of knowing whether they have taken credit within six months - credit has to be taken within a period of six months and the fact that they have taken credit has to be reflected in their ER-1 returns. Otherwise, the entire rule has no meaning and the department has no means of verifying whether the credit was taken as per the Rules.
Whether the relevant date for effect of the Notification placing the time limit is the date of invoice or the date on which credit has been taken? - Held that:- The date of the invoice has to be after 01.09.2014 for limitation of six months to apply - In this case since invoices in question were issued prior to 01.09.2014, credit is admissible on this ground alone.
Appeal dismissed - decided against appellant.
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