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Central Excise - Case Laws
Showing 341 to 360 of 388 Records
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2013 (12) TMI 221 - CESTAT NEW DELHI
Refund claim hit by bar of unjust enrichment or not - Clearance from the factory gate - Assessee contended that the factory gate sale price was available, thus there was no requirement of adopting depot sale price and demanding differential duty – Held that:- The deposit of duty by the appellant was in respect of number of clearances made from the factory gate and the amount was debited as a result of demand made by their jurisdictional central excise authorities - such deposit of amount was in the nature of deposit made after clearances and at the instructions of the Revenue, which has been held to be as not payable by the Tribunal - clearances had also been effected, there is no evidence on record that the appellant subsequently recovered the amount from their customers - the refund claim of is not hit by bar of unjust enrichment – order set aside – Decided in favour of Assessee.
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2013 (12) TMI 220 - CESTAT KOLKATA
Denial of the benefit of Notification No. 6/2006 – Classification of goods - Fabricated items supplied to mega power projects to be classified under Chapter heading 73.08 of CETA,1985 OR under CSH 98.01 of CTA,1975 – Waiver of pre-deposit – Held that:- Following RAMSARUP UTPADAK, UNIT-II Versus COMMR. OF C. EX., KOLKATTA-III [2012 (12) TMI 383 - CESTAT, KOLKATA] - Prima facie, TMT bars cleared to various mega power projects, even if falls under Chapter Heading 72 of Central Excise Tariff Act,1985 would be eligible to the benefit of Notification No. 6/2006 - the applicant could able to make out a prima facie case in their favour for waiver of pre-deposit of dues - Pre-deposits waived till the disposal – Stay granted.
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2013 (12) TMI 219 - CESTAT KOLKATA
Inclusion of transportation cost – Rails brought to the factory – Value incurred to be included in finished goods or not - Waiver of pre-deposit – Held that:- Once the value of ‘rails’ are not to be included in the value of the finished goods i.e. railway or tram way track material, manufactured out of such rails, the transportation cost for bringing the rails from Stockyard/Railway siding to the factory of applicants, cannot to be included in the value of finished goods - the applicants are able to make out a prima facie case for total waiver of amount – Pre-deposits waived till the disposal – Stay granted.
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2013 (12) TMI 218 - CESTAT NEW DELHI
Benefit of exemption Notification No. 119/66 - Revenue was of the view that the copper wire bars cannot be treated as virgin copper in crude form – Held that:- Both copper wire rods as well as copper wire bars are covered by Rule 56A for benefit of proforma credit and in respect of both, the rate of duty is at the specific rate at 3000 P.M.T., the benefit of proforma credit of the Additional Customs duty paid in respect of wire bars would be available for discharging duty in respect of wire rods - The entire case would be revenue neutral and the net duty liability of the appellant would be nil.
The appellants are not covered by the Section 11C notification - the basis for denying exemption under Notification No. 119/66-C.E., is that wire bars are not copper in crude form/virgin copper - Once it is accepted that copper wire bars were Additional Customs duty paid, the proforma credit of the duty under Rule 56A cannot be denied - once the proforma credit benefit is extended, the net duty liability of the appellants would become nil – order set aside – Decided in favour of Assessee.
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2013 (12) TMI 217 - CESTAT AHMEDABAD
Abetting and aiding clandestine removal – Goods manufactured and cleared from their factory – Waiver of Pre-deposit of Penalty under Rule 26 of Central Excise Rules, 2002 – Held that:- The statement of the appellant seems to be inappropriate Shri Mafatlal Harakchand Shah, has directed in a particular manner to remove the goods clandestinely - The defences taken needs to be gone into detail which can be done only at the time of final disposal of appeal - Prima-facie, the appellant has not made out prima facie case in their favour - Keeping in mind that the appellant is an individual and the unit M/s. Shriram Tubes Pvt. Limited is closed – appellant is directed to submit Rupees one lakh as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.
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2013 (12) TMI 216 - CESTAT NEW DELHI
Cenvat Credit - profit of receipt of inputs / raw material - Requisite form i.e; ST XXVI-A form not supplied to department – Held that:- Denial of credit on the basis of ST XXVI-A form issued by Sales Tax Department cannot be on the sole ground of non-production of such forms – COMMISSIONER OF C. EX., CHANDIGARH Versus HITKARI INDUSTRIES LTD. [2008 (2) TMI 124 - CESTAT, NEW DELHI] - the appellant had taken a categorical stand that the payments for such receipt of raw materials were made by cheque/draft and the Revenue has not made any inquiry from the supplier of the raw materials - the appellants having taken a categorical stand of payments having been made by cheque/draft, it was for the Revenue to prove otherwise - They have not even bothered to approach the supplier of the raw materials so as to find out the correct position - Revenue’s sole reliance on the absence of ST XXVI-A forms, as retrieved from the sales tax department is not justified.
There is no documentary evidence on record to reveal that what was received by the manufacturer is reprocessed granules and not the virgin granules as reflected in the records - order set aside – Decided in favour of Assessee.
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2013 (12) TMI 173 - HIMACHAL PRADESH HIGH COURT
Maintainability of Reference made by CESTAT – Winding up proceedings - Held that:- The Reference, is not an appeal so as to fall within the exception contained u/s 446 (4) of the Companies Act - without obtaining leave of the Company Court, proceedings are not maintainable – Following Deutsche Bank Vs. S.P. Kala and another [1991 (1) TMI 364 - HIGH COURT OF BOMBAY] - If the suit that is already filed against the company along with other defendants, where particularly the company under liquidation is the principal defendant is under the control of the company court - it is difficult to see why such a suit where there are defendant other than the company under liquidation is not contemplated under sub-sections (2) and (3) of Section 446 of the Companies Act, particular when the company under liquidation is a principal defendant in such a suit and the plaintiff insist upon execution of its decree against the company under liquidation also - in appropriate cases, the company court can itself entertain and dispose of a suit in which there are defendants other than the company under liquidation.
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2013 (12) TMI 172 - CESTAT AHMEDABAD
Opportunity of being heard – Personal hearing notice not received – Adjudication made before filing reply – Held that:- There seems to be a tearing hurry on the part of the adjudicating authority to decide the issue even without waiting for reply from the main appellant as well as from the other appellant - this is a gross violation of principles of natural justice – there was nothing on record that the adjudicating authority had directed the appellants to file reply after the date mentioned in the show cause notice for filing reply - Matter remitted back to the adjudicating authority for proper adjudication after proper hearing – Decided in favour of Assessee.
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2013 (12) TMI 171 - CESTAT MUMBAI
Assessee manufacturer OR fabricator – Job Work - Held that:- From the work-orders, it is evident that the appellant has supplied all the raw materials and consumables for the fabrication of the racks and trolleys - They have also provided drawings and specifications and the work was carried out in appellant's own factory premises as per the instructions issued by the appellant - there was control over the activities of the fabricators by the appellant – Relying upon Maruti Udyog Ltd. vs. Collector of Central Excise, New Delhi [1998 (12) TMI 332 - CEGAT, NEW DELHI] - Thus, the appellant is the manufacturer and not the fabricators.
Eligibility to the benefit of Notification No. 67/95 - The racks and trolleys manufactured by the appellant is held to be classifiable under Heading 9403 of the Central Excise Tariff which is one of the inputs specified in the said Notification - the appellants are manufacturing goods falling under Chapter 51, 55 and 58 of the Central Excise Tariff - In the Notification only Chapter 55 is excluded but goods falling under Chapters 51 and 58 are notified final products - if racks and trolleys were used in or in relation to the manufacture of goods falling under Chapter 51 and 58, the appellant would be eligible for the benefit of the aforesaid Notification – Thus, the assessee is eligible for the benefit of exemption under Notification 67/95 - Decided in favour of Assessee.
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2013 (12) TMI 170 - CESTAT NEW DELHI
Review/Rectification of order – Stay application – processing of waste oil consisting of various types of oil like base oil, transformer oil, etc. - Held that:- When amendment to the tariff entry under Chapter 27 was made for no consideration of statute law, renders the decision to be per incuriam - The Chapter Note using the word ‘treatment’ has widened the scope of that entry to cover within its fold all process adopted to render that process to be manufacture.
Prima facie there is no balance of convenience in favour of appellant and the process of treatment adopted by appellant was manufacture - Following Apex Court decision in Oracle India Software Ltd. [2010 (1) TMI 9 - SUPREME COURT OF INDIA ] - the legislative entry and chapter note should be interpreted in a manner to achieve the object sought to be achieved by that note without defeating object - it is not possible to agree with the appellant that it requires dispensation of pre-deposit when interest of revenue cannot be sacrificed on the facts situation - The only benefit that can be extended to the appellant today is to allow some more weeks time to make deposit of 50% of the duty demand - Appellant is accordingly directed to make above deposit within another four weeks time from today to protect interest of Revenue - modification in stay order denied.
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2013 (12) TMI 169 - CESTAT AHMEDABAD
Confiscation of goods under Rule 25 of CE Rules 2002 – Whether confiscation can be ordered when goods are already cleared and have to be treated as clandestinely removed only because of default and delay in payment of duty - Held that:- Confiscation of goods would mean that propriety of the goods shall rest with the Government and therefore if goods for confiscation are not available, redemption fine in lieu of confiscation cannot be imposed – Following Shiv Kripa Ispat Put. Lid V/s C.C.E., Nasik [2009 (1) TMI 124 - CESTAT MUMBAI] - fine was not imposable when goods were allowed to be cleared - there was not any merit in the appeal and accordingly reject the same - if the fine is paid, the goods have to be returned - it is nobody's case that if the respondent pays redemption fine the goods will be returned by the Revenue - if the goods have been seized and released provisionally after execution of bond confiscation order can be made and fine can be imposed but not otherwise –the order operating the confiscation and the redemption fine imposed in lieu of confiscation is unsustainable – Decided in favour of Assessee.
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2013 (12) TMI 168 - CESTAT BANGALORE
Refund claim u/s 11B of the Central Excise Act – Claim time barred - Held that:- The refund claim filed by the respondent on 28/10/2010 is beyond one year from the date of pronouncement of the Final Order of the Tribunal - The statute does not provide for condonation of any delay, however marginal it may be - The law made by the Parliament is supreme and has to be given full effect to – Following Dena Snuff (P) Ltd. Vs. CCE, Chandigarh [2003 (9) TMI 84 - SUPREME COURT OF INDIA] - The protest is irrelevant inasmuch as the refund claim filed by the respondent is consequential to a Final Order passed by the Tribunal and there is a specific definition of ‘relevant date’ in factual situation wherein the period of limitation should run from the date of such Final Order - This mandate of law is irresistible and no amount of protest can help the claimant to get over it – Order set aside – Decided in favour of Revenue.
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2013 (12) TMI 167 - CESTAT AHMEDABAD
Penalty u/s 11AC r.w. Rule 15 of the Cenvat Credit Rules, 2004 - transfer of capital goods to other unit without reversing cenvat credit – Held that:- The entire case can be decided on the question of revenue neutrality - it is not disputed that the capital goods on which credit was availed was transferred/cleared for the purpose of doing job work to the appellant’s own unit - there is no dispute as two of the units being the same i.e. M/s. Patel Alloys (Steel) (P) Ltd. - if the appellant’s other units have taken the credit of the capital goods and subsequently reversed the same and credit has been taken - this itself would prove that the appellant’s other units were registered with Central Excise Authority - the entire issue is revenue neutral - the ground of revenue neutral is a strong ground for setting aside any penalty imposed on the appellant as there cannot be any intention to evade duty - Penalty u/s 11AC read with provisions of Rule 15 of the Cenvat Credit Rules, 2004 directed to be waived – Decided in favour of Assessee.
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2013 (12) TMI 166 - CESTAT NEW DELHI
Activity amounting to manufacture or not - Manufacture of Aluminium door and window frames – Held that:- The appellants were undertaking the identical activities at Noida also and no demand stands raised by the excise authorities at Noida till date - This fact itself can be considered to be sufficient for the appellant to entertain a reasonable belief that the activity undertaken by them does not amount to manufacture so as to attract duty of excise - the appellant has no regular factory and the fabrication activities were being done at site of the customers – there was bonafide belief on the part of the assessee as regards non-excisability of the product - Revenue has not produced on record any positive evidence reflecting upon the malafide of the assessee – Thus, Demand beyond the period of limitation would not be sustainable.
Benefit of Exempted Clearance for SSI Exemption – Held that:- The matter needs to go back for re-quantification of the demand - Such re-quantification would be done, after excluding the value of Aluminium curtain walls as also after considering the fact that the benefit of initial clearance of Rs.50 Lakhs having been not extended to the assessee in respect of their Delhi activities on account of non-manufacturing of curtain walls, the same has to be extended.
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2013 (12) TMI 165 - CESTAT NEW DELHI
Nexus between freight and Assessable value - whether the deduction of equalized freight is required to be restricted to the actual freight incurred and the excess amount so collected has to be added to the assessable value – Held that:- Following Baroda Electric Meters Limited Vs. CCE [1997 (7) TMI 126 - SUPREME COURT OF INDIA] - Excess recovery of freight than the actual expenses on account of freight cannot be said to have any nexus with the value of the excisable goods.
Laffa Charges to be included in the value of Assessable value - Whether the Laffa charges collected from the customers which are for the purpose of avoiding of the glass shifted during transit by placing wooden baton in between the two sheets are required to be added in the assessable value or not, where the goods are delivered at the buyer’s premises – Held that:- The expenditure incurred on this account cannot form part of the value, as it is not a part of primary packing – Relying upon Window Glass Ltd. Vs. CCE [1988 (10) TMI 154 - CEGAT, NEW DELHI] - Deduction on account of Jam packing charges allowed - blocking of loose space between the two glass sheets is transportation essentiality and is more in the nature of the transportation charges - The same cannot be held to be a regular packing of the goods so as to add the value of the same in the assessable value – there was no infirmity in the order – Decided against Revenue.
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2013 (12) TMI 164 - CESTAT NEW DELHI
Refund claim rejected – Unjust enrichment - Reconditioning amounts to manufacture or not – Held that:- No cost of the reconditioned drums stands charged by the appellant from their customers at the time of clearance of the reconditioned drums - If that be so, it has to be hold that no duty stands charged by them from their customers - Even if the appellant would not have discharged duty liability on the said reconditioned drums, under protest, at the insistence of the Revenue, their agreement of Full Service Maintenance with their customers would have remained the same - the appellant’s have not recovered the amounts of duties from their customers so as to attract the unjust enrichment principles - Decided in favour of Assessee.
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2013 (12) TMI 115 - CESTAT KOLKATA
Availment of benefit of CENVAT Credit on capital goods - Depreciation u/s 32 of the Income Tax Act, 1961 – Documents not produced to adjudicatory authority - Waiver of Pre-deposit – Held that:- The Appellant have recently procured a Certificate from the Income Tax Authority, wherein it certified that the Appellant had not availed depreciation on the capital goods - the Certificate now produced had not been produced earlier before the Adjudicating Authority for scrutiny and consideration – the case is remitted back to the Adjudicating Authority to consider all issues afresh – Decided in favour of Assessee.
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2013 (12) TMI 114 - CESTAT BANGALORE
Inclusion of cost of pre delivery inspection (PDI) and free after sales services to assessable value of the vehicles sold - Held that:- Following M/s. Tata Motors Ltd. Versus Union of India & Others [2012 (9) TMI 244 - BOMBAY HIGH COURT] - As and when the car is removed out of the factory, Excise duty is payable - The assessable value has to be determined u/s 4(1)(a) of the central excise act as amended - the assesses and the dealers were not related to each other and the price was the sole consideration – Thus, the value to be taken up for the purposes of Excise duty is the transaction value.
A dealer is required to carry out Pre Delivery Inspection as well as said services in regard to a car which is sold to a customer - a dealer is required to pay an amount to the assessee towards the cost of the car and a dealer cannot charge more than the amount specified by the assessee - The difference between the price so fixed by the assessee and the price paid by the dealer constitutes what is called as dealer’s margin - A dealer has to spend money to conduct PDI as well as render said services - the dealer is required to perform PDI as well as said services as a part of the dealer’s responsibility cast on him as per the dealership agreement.
In all cases where the expenses incurred towards PDI and said services are solely borne by the dealer and the manufacturer have nothing to do with the said expenses then adding those expenses in the assessable value would be contrary to the provisions of Section 4(1)(a) r/w Section 4(3)(d) of the Central excise Act - Revenue have not been able to place on record any material to show that the amount incurred towards PDI and said services can fall within the definition of the transaction value - Thus as per Section 4(3)(d) of the Central Excise Act, 1944 the PDI and free after sales services charges can be included in the transaction value only when they are charged by the assessee to the buyer – Decided against Revenue.
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2013 (12) TMI 113 - CESTAT BANGALORE
Denial of cenvat credit – No contrary evidence with the revenue to substantiate the claim - Assessee followed first in first out method for clearance of goods –– Held that:- The officers had visited and verified the stock for the purpose of availment of CENVAT credit - During such visit if they could not and did not verify whether there was any stock received from other than manufacturers and result was availment of CENVAT credit on the quantity declared, demand for CENVAT credit availed attributing a portion of the same to the traders cannot be sustained unless backed by investigation and evidence - in this case, the investigation conducted has strengthened the case of the appellants since in the statements the concerned representatives have stated that the appellants were following the practice of storing goods received from manufacturers and traders separately and using them separately and at the time when verification was conducted only raw materials received from manufacturers was taken into account - In the absence of any contrary evidence unearthed during investigation other than arithmetical calculations, the order cannot be sustained – Decided in favour of Assessee.
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2013 (12) TMI 112 - CESTAT NEW DELHI
SSI Exemption - Clubbing of value of clearances under Notification No.9/2001 – Held that:- There was absence of investment by the Karta therein on behalf of the HUF - There was no investment of the fund by Mohali Chandigarh for day-today carrying on the business by two Mohali units except that there was sharing of infrastructure and using of common utilities as well as availing service of manpower - There is nothing on record to show that late Shri Avdesh Garg was controller of these two Mohali units making the proprietors thereof as well as partner of M/s Suchita Steels, Mohali dummy - Nothing is on record to show that late Avdesh Garg was the financial controller as well as beneficiary of the three units - In absence of inextricable link between Avdesh Garg showing his vested interest in Mohali units, so also no pecuniary interest of Chandigarh unit in two Mohali units was proved - the adjudication cannot be approved – Decided against Revenue.
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