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Central Excise - Case Laws
Showing 381 to 400 of 470 Records
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2018 (3) TMI 322 - CESTAT MUMBAI
CENVAT credit - rule 6(3) of CENVAT Credit Rules, 2004 - Held that: - the credit of duty had not been taken on inputs/input services used for exempt product and, therefore, they were in full accord with rule 6(1) of CCR, 2004; the prescriptions in rule 6(3) of CCR, 2004 are, therefore, not required to be complied by the appellant. However, as the two lower authorities had not ascertained the veracity of the claim that credit had been reversed, the matter needs to be decided afresh - appeal allowed by way of remand.
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2018 (3) TMI 321 - CESTAT MUMBAI
CENVAT credit - job-work - supply of tangible goods - Held that: - The goods in question are crane, diesel generator sets and other equipments for movement of heavy articles. These are essential in manufacturing process and there is no allegation in the show cause notice that these were put to use at a place other than that of job-worker. It is inconceivable that the job-worker may find a use for these equipments in any other manufacture. The definition of “input service” in rule 2(l) of CENVAT Credit Rules, 2004 is of sufficient latitude to allow service used directly or indirectly in relation to manufacture of final products.
There is no ground to deny CENVAT credit on this particular service under CCR 2004 - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 267 - CESTAT NEW DELHI
Demand of Differential duty - N/N. 06/2006-CE dated 01.03.2006 - Department was of the view that in respect of 160 duty paid chassis on which body was built by Unit-II, duty was required to be paid by Unit-II on the entire value of chassis + body built thereon at the time of returning the same to Unit-I.
Held that: - The unit which has received the duty paid chassis from M/s Tata Motors has availed the Cenvat Credit of such duty paid before sending the same to other unit for body building. After getting the body built by the other unit and return of the same, the first unit has paid the duty on value including that of the chassis. The excise duty demand has been raised on the second unit where the body has been built - Since the second unit has not taken the credit of duty paid on the chassis, the second unit is allowed to discharge the duty without including the value of chassis. It is found that such duty has already been paid. Consequently, the demand for differential duty raised against the two units cannot be sustained.
The differential duty raised in the course of audit objection has already been paid by both the units but Revenue has raised the issue that such duty has been paid after delay and hence interest is required to be paid - demand set aside - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 266 - CESTAT NEW DELHI
CENVAT credit - Department was of the view that since no Excise Duty was required to be paid on such dies on transfer to Unit-II, the Cenvat Credit availed was irregular - Held that: - there is no dispute about the payment of duty by M/s Tata Motors Ltd., which has been availed as Cenvat Credit as by Unit-II. There was no legal requirement on the part of M/s Tata Motors Ltd. to pay the CVD but the same has been paid. It is a settled law that receiver of the goods is eligible to take credit of duty paid and the correctness of the assessment and payability of the duty by the supplier of the goods cannot be opened by the Central Excise Authorities at the end of the recipient of the goods.
Similar issue came up before Hon’ble Supreme Court in the case of CCE V/s MDS Switchgear Ltd. [2008 (8) TMI 37 - SUPREME COURT], where it was held that CER entitled the receipt manufacturer to avail credit of the duty paid by the supplier, so quantum of duty already determined by the jurisdictional officers of the supplier unit cannot be challenged by revenue in charge of recipient unit.
Transfer of dies from Unit-II to Unit-I on payment of duty - Held that: - there is no dispute that Unit-II has paid duty while transferring the dies to Unit-I. Admittedly, these dies have been sent for repairs and are not in the nature of capital goods for Unit-I. But Rule 16 of the Central Excise Rules, 2002 provides for return of goods to the factory for repair, remaking etc. Hence the credit cannot be disallowed only for the reason that the dies are not the capital goods for Unit-I.
The appellant has submitted various documents such as material receipt notes on the part of Unit-I, purchase order details of proportion including evidence for payment of Service Tax on the transportation etc. These evidences have been ignored by the adjudicating authority. In any case the credit availed by Unit-II stands reversed when the dies were returned to Unit-II after carrying out repairs by reversal of the Cenvat Credit. Since the credit availed already stood reversed no demand can be raised against the Unit-I for repayment of the credit availed all over again.
There is no justification for demanding repayment of Cenvat Credit all over again by taking the view that the credit availed was irregular - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 265 - CESTAT CHANDIGARH
100% EOU - the waste generated during the manufacturing process of cotton blended yarn is cleared without payment of duty - demand of duty on the waste generated in Part-II of the unit by classifying under Chapter 55 of the Central Excise Tariff Act - Held that: - identical issue decided in appellant own case Winsome Yarns Ltd. Versus CCE Chandigarh [2017 (3) TMI 364 - CESTAT CHANDIGARH], where it was held that as predominating factor is of cotton waste, and waste is classifiable under Chapter 52 of cotton yarn manufactured in question, the duty cannot be demanded - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 264 - CESTAT CHENNAI
Classification of goods - Building Blocks, solid and hollow pavers made of cement/concrete - whether classified under CTH 68101190 or under CTH 68109990? - benefit of N/N. 10/2003 dated 1.3.2003 - Held that: - the classification of the impugned products manufactured by the respondent has been held to be under 68101190 against the classification alleged by the department to be under 68109990 - identical issue decided in respondent own case AEON’S CONSTRUCTION PRODUCTS LTD. Versus COMMISSIONER OF C. EX., CHENNAI [2009 (6) TMI 247 - CESTAT, CHENNAI], where it was held that the assessees are entitled to the benefit of concessional rate of duty under the relevant Notifications as rightly held by the lower appellate authority - appeal dismissed - decided against Revenue.
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2018 (3) TMI 263 - CESTAT CHANDIGARH
CENVAT credit - demand on the ground that the appellants were required to file a statement of utilization of credit, payment of duty and taking of credit by 15th day of subsequent month, which were not filed - N/N. 01/2010-CE dated 6.2.2010 - Held that: - As per the said Notification, Condition 5 (d) stipulates that the appellant is required to file a statement of the total duty payable as well as the duty paid by utilization of Cenvat credit or otherwise and the credit taken on or before 15th of the subsequent month - Admittedly, the appellant did not comply with the condition of the notification.
Hon’ble Apex Court in the case of Mangalore Chemicals & Fertilizers Ltd. [1991 (8) TMI 83 - SUPREME COURT OF INDIA] has held that Condition 5(d) of Notification No.01/2010-CE dated 6.2.2010 is similar to other notifications which are in the manner of procedure to be followed by the appellant wherein the appellant is required to file certain documents before a particular date. If such documents are filed with a delay, in that circumstance, it is only a procedural lapse on the part of the appellant, the benefit of notification cannot be to the appellant.
Condition 5 (d) of N/N. 01/2010-CE dated 6.2.2010 is procedural in nature and for complying with the said condition with a delay cannot be fatal to the appellant - the self credit taken by the appellant cannot be denied.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 262 - CESTAT CHANDIGARH
Penalty u/r 26 of the CER 2002 - short payment of duty - Held that: - control of manufacture quality, raw material, storage, packing proves that manufacturer is M/s Nitin Pharmaceuticals Pvt. Ltd and not the appellant. If that is the case, therefore, without coming out any instance of involvement of the appellant for short payment of duty by M/s Nitin Pharmaceuticals Pvt. Ltd., the observation made by the Ld. Commissioner (A) in paragraph 9 of the impugned order is contrary to the facts of the case.
Penalty not imposable - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 261 - CESTAT CHENNAI
CENVAT Credit - only plea put forward by the ld. counsel is that the adjudicating authority may be directed to verify the CENVAT documents and may be given benefit of the CENVAT credit in case the appellant produce documents - Held that: - In Vikash J. Shah Vs. Commissioner (Appeals) Coimbatore [2016 (2) TMI 442 - MADRAS HIGH COURT], the Honble High Court observed that the benefit of CENVAT credit ought to be given to the appellant - We direct the adjudicating authority to consider the claim of the appellant for CENVAT credit on production of documents. The said verification shall be completed within a period of three months from the date of receipt of this order.
Penalty on M/s. Sri Amman Allied and Steel Industries - Held that: - Taking into consideration of the fact that equal penalty under section 11AC has been imposed and also that a penalty under Rule 26 cannot be imposed upon a company, we find that the said penalty requires to be set aside.
Matter remanded to verify the plea of appellant regarding benefit of CENVAT credit - appeal allowed by way of remand.
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2018 (3) TMI 260 - CESTAT CHENNAI
Clandestine removal - excess of finished goods - shortage of goods - evidence obtained from computer floppies opened using unauthenticated software - Held that: - the Tribunal had clarified that Revenue has no right to use any files opened with unauthenticated software in the remand proceedings. In the denovo proceedings, the Commissioner has therefore excluded the evidence obtained from the filed opened with unauthenticated software. As seen above, in the impugned order it is discussed in detail the reason for dropping duty demand of ₹ 7,60,79,469/-. Therefore, we do not find any merit in the appeal filed by the department in E/401/2009 requesting to interfere with the dropping of the said demand of duty.
Penalty - Held that: - there is no evidence that the co-noticees have directly indulged in clandestine production of clearance of excisable goods. Further that when separate penalties have been imposed on SUAS for the very same offence, there is no need to impose penalty for the same offence under Rule 26 of Central Excise Rules, 2002.
Appeal dismissed - decided against appellant.
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2018 (3) TMI 259 - CESTAT MUMBAI
SSI exemption - clubbing of clearances - dummy units - use of common brand name - Held that: - SCN has raised separate demands against both the Respondents thus accepting the separate entity of both the firms. Clubbing of value clearance of the firms without disclosing which of the units is principal and which of the units is dummy is not sustainable as when the clearances are sought to be clubbed it has to be shown as which entity does not have separate existence and hence its clearances are to be clubbed to the clearances of principal unit.
The SCN also alleged that since both the units are manufacturing goods with a common brand name (Gaylord), they are not entitled for the benefit of value based SSI exemption N/N. 8/2003-C dt 1.3.2003 - it is found that the name Gaylord is not a registered brand name of any of the units. Further none of the units has claimed the ownership on such name. In such case when the word Gaylord is part of their name, it cannot be said that the Respondents are manufacturing goods under a brand name of another person.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 258 - CESTAT NEW DELHI
Classification of goods - “green houses” in ready to assemble condition - whether classified under CTH 9406 or under CTH 8424? - Held that: - The tariff entry 9406 00 11 covers the green houses in ready to assemble sets. It stands established that the supply which has been made is for green houses in ready to assemble condition. Such goods are specifically covered under the above tariff heading - the goods cleared by the appellant are classifiable under 9406 00 11 as green houses in ready to assemble sets and liable for payment of excise duty during the period under dispute. Such Central Excise duty is required to be paid on the entire value of the green houses i.e. including the value of both the components fabricated in the factory as well as those procured from outside. However, the appellant will be entitled to the benefit of cenvat credit on goods procured from outside subject to verification of such entitlement on the basis of documents to be produced by the appellant.
It is also fairly well settled that the total consideration received is to be considered as cum duty price and such benefit will be entitled to the appellant.
The demand for Central Excise duty under 9406 made in the impugned order is upheld but with the modification that the appellant will be entitled to CENVAT credit subject to the verification of documents - appeal allowed in part.
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2018 (3) TMI 257 - CESTAT NEW DELHI
Valuation of the cars manufactured and sold - acceptance of transaction value - Section 4 (1) (a) of the Central Excise Act, 1944 - Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000.
Held that: - The main elements to satisfy transaction value in terms of Section 4 (1) (a) are that such value should be for delivery at the time and place of removal; between unrelated parties and price being the sole consideration for sale and the same had not been influenced by any other consideration - The fact of the present case are that the Revenue proceeded against the appellant only on the ground that the price is not the sole consideration for sale of cars by the appellant during the material time. There is no allegation that the appellant and the buyers of the car are related persons or any consideration in money terms or non-money terms were received directly or indirectly by the appellant from such buyers.
The appellant was centrally registered with large tax payer unit (LTU) during the relevant time. As such, the production clearance of the appellant in all their units should have been considered in a holistic manner - there were glaring omissions in noting certain factual details by the Original Authority. Some of the crucial submissions on facts made by the appellant were not even discussed. These are with reference to escalation in the cost due to various factors beyond the control of the appellant and also sale of same model of cars both in profit as well as in loss in the same financial year. Similarly, we also note that the appellant’s plea regarding various decisions of the Apex court on valuation and provisions of Section 4 (1) (a) were also not examined with required analysis. The appellant strongly contested the finding with specific reference to amendment to Section 4 (1) w.e.f. 14/05/2003 readwith provisions of Rule 6 and the valuation rules. This also requires clear finding.
Erosion of capital - Held that: - net worth of the company is different from the capital of the company. There was no reduction in the share capital of the appellant during the material period. We note that the finding by the lower authority on erosion of capital appears to be not based on Standard accounting and commercial principles.
Extended period of limitation - Held that: - there is no reason to invoke allegation of suppression, mis- representation with an intention to evade payment of duty on the part of the appellant/assessee. There is no case for such allegation - extended period not invocabe.
Appeal allowed in part.
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2018 (3) TMI 256 - CESTAT NEW DELHI
Classification of goods - motor vehicles as well as chassis fitted with engine which is also cleared at times by the appellant - motor vehicles have been described as “tipper” which have been claimed to be meant for off-road use and hence classifiable under 8704 2390. However, Revenue of the view that such vehicles are meant for off- road use and hence are to be described as “dumpers” for off-road use which are classifiable under 870410.
Held that: - The Central Excise Tariff is based on the HSN Harmonised System Nomenclature. The HSN explanatory notes can serve as a useful guide in deciding the classification of the goods under the First Schedule to the Central Excise Tariff Act, 1985.
The features highlighted by the appellant include limited speed as well as special earthmoving tyres. When we look at the specifications of the trucks manufactured by both the appellants, we note that such trucks are capable of maximum speed in the range of 70 to 85 km per hr. The type of wheels/ tyres which are used in the appellant’s vehicles are also of the type used on highways and not off-road tyres - such vehicles manufactured by the appellant are meant to carry loads and capable of off-loading but the same are not machines exclusively meant for off-road use.
The motor vehicles manufactured by the appellants do not fall in the category of dumpers designed for off-highway use under 8704 10. They are classifiable, as claimed by the appellant under 8704 2390 as tipper trucks likewise the classification of chassis also will fall under 87060042 and not under 87060043 as claimed by the Department.
Demand of differential duty - case of Revenue is that MFTPL has exported chassis fitted with engines but they paid Excise duty only @ 10% under claim of rebate whereas the applicable Excise duty during the relevant time was 10% plus specific Excise duty @ ₹ 10,000/- per chassis - Held that: - There is no dispute that the goods have been exported during the period June, 2008 to February, 2011. Admittedly, there is a short payment of duty by the appellant. However, the fact remains that if the differential duty is paid by the appellant the same will also be available to them as rebate since the goods have been exported - there is no justification for demand of duty which is set aside alongwith the interest and penalties.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 255 - CESTAT NEW DELHI
Applicability of Section 11AC (1)(d) of CEA - case of appellant is that said provision nowhere further applies to adjudicate the matter relatable to confiscations etc - Held that: - the conclusion of proceedings in terms of sub section (d) is provided in respect of cases mentioned in sub-section (c). Sub-section (c) relates to the evasion of duty by reason of fraud or collusion. As such it has to be held that in cases of fraud conclusion etc., the entire proceedings would get finally concluded on an assessee depositing the dues as mentioned in sub-section (d), thus not permitted further adjudication relatable to the confiscation of the goods on the vehicle etc.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 254 - CESTAT NEW DELHI
Clandestine removal - opportunity of cross-examination not provided - Held that: - clandestine removal is a very serious charge which requires corroborative evidence. In the instant case, the 10 buyers who have made the statement were not cross examined by the appellant though summons were issued. Prima facie this is a violation of the principles of natural justice especially when the statements were extended to all the 120 buyers.
Matter remanded to the original authority to provide the opportunity of cross examination - appeal allowed by way of remand.
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2018 (3) TMI 253 - CESTAT CHENNAI
100% EOU - Scope of SCN - main defence put forward by the ld. counsel is that no separate SCN has been issued to the alleged dummy unit and therefore the same vitiates the entire proceedings - Held that: - the demand cannot sustain as the department has not issued SCN to the alleged dummy unit proposing to club the clearances of the same with the appellant herein - even the copy of the Order-in-Original has not been served upon the alleged dummy unit - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 252 - CESTAT CHENNAI
N/N. 22/2003-CE - Department took the view that the exemption benefit of these notifications would only be availed in respect of goods manufactured by an assessee whereas it appeared that the impugned goods were only imported or otherwise locally procured by the appellants and supplied as such to the EOUs - Held that: - the very same goods, which are cleared by the appellant to the EOU or towards supply of ICB, when such goods are cleared to the DTA, the department has accepted the payment of duty made by the appellant on the transaction value and on such DTA clearances have not demanded debit of the corresponding amount of CENVAT credit availed in respect of those good. This fact has been taken note of by the subsequent appellate orders produced by the ld. Consultant.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 251 - CESTAT MUMBAI
Valuation - physician samples - rule 8 of Central Excise (Determination of Price of Excisable Goods) Rules, 2000 - Held that: - Undoubtedly, in the impugned proceedings there has been no attempt to suggest that the valuation of the samples should be in compliance with section 4A of Central Excise Act, 1944 - in the absence of demand arising from implementation of the MRP-based assessment of samples, the authority drawn therefrom in the show cause notice leading to the present proceedings fails.
As samples have to be valued under section 4 of Central Excise Act, 1944 which was recast in 2000, with corresponding changes in the valuation rules and in accordance with which rule 8 of Central Excise (Determination of Price of Excisable Goods) Rules, 2000 was made applicable-a position which remains unchanged even after the coverage under MRP-based assessment for commercial goods to samples, the basis of the show cause notice for revising the valuation method will not sustain.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 250 - CESTAT NEW DELHI
CENVAT credit - Revenue entertained a view that out of the total invoices issued by M/s Subhash Steels, two invoices were issued without actually supplying the material reflected therein - Held that: - admittedly the appellants have recorded the receipt of the raw materials in their Cenvat credit accounts and have shown the utilisation of the said raw material in the manufacture of the final product - appeal allowed - decided in favor of appellant.
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