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Central Excise - Case Laws
Showing 81 to 100 of 4797 Records
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2018 (12) TMI 1235 - CESTAT CHANDIGARH
CENVAT Credit - inputs - credit denied on the ground that the said goods in question cannot be the inputs for the appellant M/s. Tharaj to manufacture their final products - Held that:- No investigation was conducted at the end of the transporter by the Revenue to prove that the goods have not been received by the appellant in their factory. Moreover, no investigation was conducted to prove that these inputs have been diverted by the appellant M/s.Tharaj in the market and procured bazaar scrap from the open market. As the Revenue has not come with any evidence on record to show that the goods have been substituted by bazaar scrap, the allegation against appellant is not sustainable.
As the Revenue has failed to bring on record any cogent evidence in support of their allegation, therefore, the allegation that the goods in question cannot be the inputs for the appellant M/s.Tharaj for manufacture of their final product is not sustainable - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1234 - CESTAT CHANDIGARH
Recovery of Refund claim - area based exemption under N/N. 56/2002-CE dated 14.11.2002 availed - demand on the grounds that the farmers are non existence ensuring non supply of raw material by commission agents to J&K based units and absence of evidence of power by the appellant - Held that:- The commission agents never supplied inputs to the appellant and the appellant did not manufacture the goods. Consequently, they have not sold the goods and it was alleged that the appellant has not manufactured the goods at all.
The investigation was not conducted at the end of the appellants and whole case has been based on the investigation conducted at Commissioner Central Excise, Merrut-II. Without investigation, it cannot be held that the appellants were not manufacturer of the finished goods during the impugned period. Moreover, the entries of vehicles at the toll barriers also certified that the movements of raw material and finished goods - the allegation is only on the basis of the assumption and presumption, therefore, it cannot be held that the appellants had not manufactured the goods during the impugned period.
The appellants are manufacturers during the impugned period and paid the duty on the goods manufactured by them, therefore, duty on account of erroneous refund cannot be demanded on the allegation that the appellants were not manufacturers - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1180 - MADRAS HIGH COURT
Condonation of the delay of 1553 days in filing the appeal - whether the appellant had shown sufficient cause for not having preferred any appeal before the Tribunal within the period of limitation? - Held that:- the assessee was not correctly advised that they would not be in a position to contest the merits of the matter before the Authority under the VCES. Therefore, the application filed under the VCES was rejected by order dated 15.11.2013 on the technical ground with regard to issuance of notice. - Before the Tribunal, it appears that the assessee was questioned as to whether they had challenged the order dated 27.8.2013, to which, the assessee explained that they pursued the matter under the VCES as they were advised to do so. Not convinced with the explanation, the Tribunal dismissed the appeal by order dated 25.10.2017.
The facts clearly show that the reason for the delay has been explained, the explanation offered is reasonable and convincing - thus, the appellant had shown sufficient cause in not being able to prefer the appeal within the period of limitation.
The delay in filing the appeal should be condoned - decided in favor of assessee.
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2018 (12) TMI 1179 - MADRAS HIGH COURT
Principles of natural justice - infraction of Rule 23 of the CESTAT Rules - whether the veracity of the receipt of fly ash from outside sources to the extent claimed by the assessee was correct or not? - Held that:- Sub-Rule (1) of Rule 23 of the CESTAT Rules states that the parties to the appeal shall not be entitled to produce any additional evidence either oral or documentary. But, if the Tribunal is of the opinion that any documents should be produced or any witness should be examined or any affidavit should be filed to enable it to pass orders or for any sufficient cause or if the Adjudicating Authority or Appellate or Revisional Authority has decided the case without giving sufficient opportunity to a party to adduce evidence, the Tribunal may, for reasons to be recorded, allow such documents to be produced or witnesses to be examined or affidavit to be filed.
The Tribunal was justified in remanding the matter to the Adjudicating Authority to consider the evidence, which may be produced by the assessee.
The substantial questions of law are answered against the Revenue and in favour of the assessee.
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2018 (12) TMI 1178 - CESTAT HYDERABAD
Clandestine removal - bazar scrap - the entire case of the Revenue and the Adjudicating Authority while holding against the main appellant is on statements recorded of individuals, it is also recorded that corroborative evidence documentation on which defence for availing CENVAT credit was not produced - Held that:- The Adjudicating Authority has not brought on record in the findings portion, how he has come to a conclusion that there were purchases of bazar scrap and the same was unaccounted; there is nothing on record to indicate the investigation was taken up with scrap dealers - there seems to be no evidence in any form to indicate purchases of unaccounted bazar scrap.
Registration number of vehicle mentioned - Held that:- The document indicated was of a Bajaj pulsar motor cycle, the Lorry/Trailer Numbers are specifically mentioned does indicate so, it is not proved beyond doubt that the vehicle number of Bajaj Pulsar was mentioned intentionally on behest of main appellant. Further it can be noticed that the main appellant was taking a consistent stand before the lower authorities they had religiously recorded the receipts and consumption of imported goods in the statutory of books and cleared manufactured products on payment of appropriate duty. The details as given by main appellants in form of RG-23A part I&II, RGI etc., are not controverted by the Adjudicating Authority in the findings (which are reproduced herein above) but pleas were dismissed by recording that the main appellant had not produced evidence of receipt of materials in their factory.
The main appellant’s contention that they had manufactured final products and cleared the same during the period in question remains uncontroverted.
As regards the RG-23 part I& II and statutory books - Held that:- This position is unchallenged, it can be noted that same were maintained and produced before audit parties during scrutiny of records, on various dates for the period in question. If that be so and there being no adverse observation in the various audit report, as to there may be a case of non-receipt of inputs, entire case of the revenue is based on the statements will fall under its own weight as during cross examination the individuals have denied to have made the statements, which would mean that there is lack of cogent evidences. On this ground itself the entire demand fails.
CENVAT Credit - CVD paid on the Bills of entry was availed without receipt of inputs - Held that:- The individuals who were handling business activity of the main appellant i.e., Shri PR Bhandari, Shri U.M. Bhandari, Shri Virendra and Shri Surendra Bhandari, had not given any statement which is inculpatory in nature to indicate CENVAT credit was availed without receipt of any materials. In the absence of any corroborative evidences, it has to be held that the Revenue has not been able to prove that CENVAT credit of the CVD paid on the Bills of entry was availed without receipt of inputs.
Demands confirmed on letter written by Concor Corporation that there was receipt of imported goods at Turbhe and transported to place other than Hyderabad - main appellant had been seeking cross examination of the officials, which was declined by the Adjudicating Authority - Held that:- It is settled law that no reliance can be placed on a document which is not tested in cross examination if specifically sought. At the same time, the Adjudicating Authority should be extended an opportunity to consider the plea of cross examination of the individuals from Concor Corporation - appeal allowed by way of remand.
Penalties also cannot be sustained.
Appeal disposed off.
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2018 (12) TMI 1177 - CESTAT HYDERABAD
CENVAT Credit - input services - parcel services which were utilised for exports beyond the place of removal - Held that:- Identical issue came up before the Bench of the Tribunal in the case of CCE vs. Imperial Auto Industries [2017 (4) TMI 1048 - CESTAT CHANDIGARH], where it was held that credit on courier and transportation charges to the respondent for transportation of the goods to the foreign buyer premises allowed - credit allowed - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1176 - CESTAT HYDERABAD
Refund of unutilized CENVAT Credit - inputs/capital goods - manufacture of Rectified Spirit/Denatured Spirit and Fusel Oil - rule 5 of CCR - Held that:- Identical issue came up before Hon’ble High Court of Rajasthan in the case of Welcure Drugs & Pharmaceuticals Limited [2018 (8) TMI 1169 - RAJASTHAN HIGH COURT] wherein their Lordships after analysing all the decisions on the issue and considering the provisions of Rule 5 of CENVAT credit Rules 2004 has held that Tribunal is fully justified in ordering refund particularly in the light of the closure of the factory and in the light or the assessee coming out of the Modvat Scheme.
Refund allowed - appeal dismissed - decided against Revenue.
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2018 (12) TMI 1175 - CESTAT AHMEDABAD
Liability of excise duty - Goods removed by EOU to domestic tariff area without obtaining permission from the Development Commissioner - Held that:- The duty liability for the period prior to the amendment of the section 3 of the Central Excise Act, 1944 with effect from 11/05/2001, the duty liability on goods not specifically allowed by the Development Commissioner to be cleared to the DTA, would arise under section 3(1) of the Central Excise Act, 1944 and not under the proviso to section 3(1) of the Central Excise Act, 1944 - appeal dismissed - decided against Revenue.
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2018 (12) TMI 1174 - CESTAT AHMEDABAD
Refund of Education Cess and Secondary & Higher Education Cess paid from PLA - area based exemption under notification 39/01-CE dated 31/07/2001, availed - Held that:- Issue decided in the case of SRD Nutrients Pvt. Ltd. Vs. CCE [2017 (11) TMI 655 - SUPREME COURT OF INDIA] - appellant is entitled for the refund of Education Cess and Secondary & Higher Education Cess under N/N. 39/01-CE - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1173 - CESTAT MUMBAI
Penalty - CENVAT Credit - common input services for both manufacturing and trading activities - no separate accountal of utilization - rule 6 of CENVAT Credit Rules, 2004 - Held that:- In view of the consistent stand of the Tribunal on the test of evidence for pre-supposing intent to evade duty, the circumstances pertaining to impugned availment of credit of tax paid on input services used for exempted activities, such as trading, in the various decisions cited by Learned Counsel and the specific circumstances in which the High Courts and Hon’ble Supreme Court has enforced the penal provisions, we set aside the penalty imposed in the impugned order - appeal allowed.
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2018 (12) TMI 1172 - CESTAT MUMBAI
CENVAT Credit - duty paid on inputs - captively consumed ‘sugar syrup’ - intermediate goods - Held that:- The contention of the appellant that ‘sugar syrup’ produced by them does not meet these requirements, owing to less than adequate ‘fructose’ content, is backed by a test report which is not controverted by the lower authorities - The finding of ‘sugar syrup’ having shelf-life and, thereby, becoming excisable is not founded on a proper appreciation of the impugned product.
In the absence of any test report to contradict the ‘fructose’ content in the ‘sugar syrup’ produced by the appellant, it is not sufficient reasons found to consider the impugned goods to be excisable within the meaning of section 2(d) of Central Excise Act, 1944 - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1171 - CESTAT MUMBAI
Rectification by way of corrigendum - circular no. 502/68/99-CX dated 16th December 1999 - Held that:- The demand of duty that has been confirmed is limited to the period from 16th December 1998 to 31st December 1998 with the remaining demand not confirmed. All that corrigendum has done is to clarify that conclusion instead of leaving it to inference owing to a specific reference in the operative portion of the impugned order.
As the impugned order has rendered a finding on non-leviability of the duty for the period from January 1999 to January 2000 which is the subject-matter of show cause notice dated 28th April 2000, it cannot be said that the corrigendum was anything more than correction of mere clerical mistake - appeal dismissed - decided against Revenue.
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2018 (12) TMI 1170 - CESTAT MUMBAI
CENVAT Credit - inputs utilised in by-products/waste products - circular no. B-4/7/2000-TRU dated 3 April 2000 - Held that:- There was no cause to examine the applicability of circular no. B-4/7/2000-TRU dated 3 April 2000 in which Central Board of Excise & Customs has negated the scope for invoking exclusion from eligibility for CENVAT credit merely because the inputs had been utilised in waste or by-products.
As the show cause notices in the impugned proceedings, except for the one pertaining to September 1998, had sought to invoke the demands by disputing the claim of the assessee that ‘lean gas’ is a by-product, it was incumbent upon the original authority to examine that as a prerequisite for determination of liability - the validity of the claim of central excise authorities that liability should be confirmed.
The original authority is directed to examine the scope of the applicability of the exclusion from rule 6 of CENVAT Credit Rules, 2002 on the ‘lean gas’ claimed to be a by-product in the manufacturing process of the respondent - appeal allowed by way of remand.
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2018 (12) TMI 1169 - CESTAT MUMBAI
Refund of reversed CENVAT credit - time limitation - unjust enrichment - Held that:- The payment was made lastly in February, 2011 without protest and refund claim was filed on 22.06.2017. But such payment being made at the insistence of the Department cannot be considered as time barred and provisions of Section 11B are not applicable in the present case - However, he has not dealt with Section 11B explanation (EC) whereby the period of one year should be computed from the date of judgment decree, order or direction of the Appellate Tribunal. This being not challenged before the Commissioner, no finding is required in this aspect that refund was filed within the prescribed period of limitation.
Unjust enrichment - Held that:- It can be noticed that referring to the Balance Sheet of 2005-06 & 2006-07 and for the financial year of 2015-16 & 2016-17 the Adjudicating Authority has given his findings at para 27 that the appellant had not shown the amount of refund claim of ₹ 1,66,600/- as receivable amount in their Balance Sheet and the Chartered Accountant has not certified that the said amount has been shown in the Balance Sheet to be ‘receivable’. Therefore while holding that doctrine of unjust enrichment is applicable to all the cases of refund irrespective of the amount as refund of duty or otherwise - learned Commissioner (Appeals) has accepted the Chartered Accountant certificate as a piece of evidence to the extent that incidence of tax has not been passed on directly to any other person and in respect of indirect passing of such incidence of duty, his logic was that the amount has been booked as expenditure in the books of account and not as receivable that would clearly establish that the amount has been absorbed in the costing of final products. This finding appears to be erroneous.
There is no hesitation to hold that rejection of refund claim of the appellant, which it is entitled to get by virtue as the order of this Tribunal, on the ground of unjust enrichment without any iota of proof of such unjust enrichment is erroneous and is not infirmity to the law - appeal allowed.
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2018 (12) TMI 1168 - CESTAT NEW DELHI
Imposition of oil cess and National Calamity Contingent Duty (NCCD), education cess(EC), secondary and higher secondary education cess(SHE) - “Condensate” which emerges out during the processing of natural gas in their gas plant - Held that:- The oil cess in terms of Section 15 of OIDA, is required to be collected as duty of excise as per the rate the specified item in the schedule. As per the Act the provision of Central Excise and Salt Act, 1944 and Rules made there under, including those relating to refunds and exemption from duty, cess, as far as may be, applied in relation to levy and collection of duty of excise leviable under this Section and for this the provision of that Act shall have affect as if that Act provided for the levy of duty of Excise on all items specified in the schedule.
It is evident that “condensate” is obtained and received from natural gas processing plant as a by-product where the manufacturing of the aforesaid “condensate” was never intended, thus this question of classification and payment of cess in the form of duty of excise is not leviable although the Adjudicating Authority has referred to Section 2 (f) and 2 (d) of Central Excise Act to claim of imposition of oil cess on the “condensate” as a manufactured product.
Time limitation - Held that:- In this case the Show Cause Notice is issued under the provisions of Section 11A(1) of the Act thus the demand is time barred as no extended period of limitation has been invoked in the Show Cause Notice dated 25.3.2015. The Show Cause Notice invoked the provisions of Section 11 A(1) of Central Excise Act, 1944 read with Section 15 of Oil Industries Development Act - the demand is time barred.
The oil cess is not leviable on the “condensate” and under OIDA either on merits or also on limitation - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1167 - CESTAT CHENNAI
CENVAT Credit - input services - Rent-a-Cab Services - Water Treatment - Gardening Service - period pre and post 01.04.2011.
Rent-a-Cab services - Held that:- For the post amendment period i.e. after 01.04.2011, the above definition was amended to specifically exclude Rent-a-Cab Service, and includes services which are ‚used by a manufacturer, whether directly or indirectly, in or in relation to manufacture of final product and clearance of final products up to the place of removal‛ - Commissioner (Appeals) has rightly disallowed the Credit on Rent-a-Cab Services for the period from December 2011 to October 2012 and the same does not call for any interference - Demand on Rent-a-Cab Service for the period from April 2008 to March 2009 is set aside - Demand on Rent-a-Cab Service for the period from December 2011 to October 2012 is upheld with interest thereon.
Water Treatment Service - Held that:- The same is utilized by the appellant as per the guidelines or norms of PCB according to which establishment of Effluent Treatment Plant in the factory is a statutory requirement for the treatment of polluted water - credit allowed.
Garden Maintenance Services - Held that:- The same is required as per the guidelines of the PCB for the purpose of a better work atmosphere - credit cannot be denied.
Appeal allowed in part.
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2018 (12) TMI 1166 - CESTAT ALLAHABAD
Valuation - inclusion of hundi charges collected by the appellant from their customers in assessable value - Held that:- Tribunal in the case of Collector of Central Excise vs. Shree Bhawani Cotton Mills & Industries Ltd. [1985 (1) TMI 214 - CEGAT, NEW DELHI] has held that bank commission and hundi commission and interest payable to the bank in the account of the customers cannot be included in the assessable value - demand set aside.
CENVAT Credit - various input services - Held that:- The services are held to be eligible for credit as decided in various decisions - credit of all services allowed except vehicle repair & maintenance and Internet charges.
Appeal allowed in part.
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2018 (12) TMI 1165 - CESTAT CHANDIGARH
Recovery of cash refund (erroneous refund) - area based exemption under N/N. 56/2002-CE dated 14.11.2002 availed - Held that:- Similar issue has been dealt by this Tribunal in the case of S.B. Aromatics vs. CCE & ST, Jammu & Kashmir [2018 (11) TMI 830 - CESTAT CHANDIGARH], where it was held that duty on account of erroneous refund cannot be demanded on the allegation that the appellant was not a manufacturer - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1164 - CESTAT KOLKATA
CENVAT Credit - inputs in the form of HR/CR Coils and sheets - Held that:- Such inputs were used by the appellants in the fabrication of body on the chassis supplied by M/s Tata Motors and other customers. For fabrication of body, the supplier, M/s Tata Motors, had supplied the design and drawing to the appellants. This also contained a bill of materials required for the fabrication of such body - The investigation led to the conclusion that the appellants have shown consumption of materials in excess of materials as per bill of materials supplied by Tata Motors. This became the basis for the prima-facie conclusion of Revenue that the appellant has shown as consumed more materials than what was required for fabrication of chassis.
Whether the Department is justified in ordering reversal of cenvat credit for inputs to the tune 1685.696 MT? - Held that:- As per the Scheme of the Cenvat Credit Rules, 2004, the credit on inputs is eligible in respect of goods used in the factory of the manufacturer of final product. It is not in dispute that the HR/CR sheets are inputs, which are required in the fabrication of body in the appellant’s factory. The credit also have been availed on the basis of invoices for which the payments have been made through proper Banking Channels.
The investigation undertaken at the supplier’s end, has not brought on record any solid evidence to establish that the inputs were never received in the appellants’ factory. It is nobody’s case that any part of the inputs have been diverted clandestinely outside without use in the factory for manufacture. In view of the above, it cannot be concluded that the appellant has irregularly availed credit on inputs without use of the same in the manufacture.
Two invoices for a total quantity of about 76 MT - Held that:- The credit for the same has since been reversed inasmuch as the material has been received/returned.
Revenue is not justified in ordering reversal of cenvat credit - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1163 - CESTAT KOLKATA
Valuation - cement - clearances to Deputy Commissioner, Singhbhum, Jamshedpur in 50 kg bags on which RSP of ₹ 189 was fixed - N/N. 4/2006-CE dated 01.03.2006 - Held that:- Even though RSP has been embossed on such bags, it is obvious that such clearances do not fall in the category of retail sale, but are in the nature of sale to institutional customers - Notification No.4/2006 specifically provides that clearances made in those cases where RSPs were not required to be declared under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 are to be charged to duty at the rate as in the case of goods cleared in other than packaged form. Such goods are chargeable @400 per MT in terms of Sl. No.1C of the Notification ibid - there is no justification to charge excise duty @₹ 600 per MT (tariff rate) - the differential duty demand restricted to the difference between ₹ 400 per MT (as per 1C) and ₹ 350 per MT (as per 1A).
Cement to retail customers in 50 kg bags on which RSP was fixed - Held that:- There is no justification for charging excise duty at tariff rate in view of the fact that different RSPs have been affixed only for clearances to different areas. But there is only one RSP on a single package and there was no case of two or more RSPs printed on any single package. Consequently the mischief of Explanation –III of the Notification will not be incurred. Since duty is already paid @12% of the RSP, the demand for differential duty made in the impugned order is set aside, in respect of clearances to retail customers.
Penalty - Held that:- The issue of the present case is a question of interpretation of the Notification No.4/2006. It cannot be said that the appellant had any malafide intention and hence there is no justification for imposition of any penalty - penalty set aside.
Appeal allowed in part.
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