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Central Excise - Case Laws
Showing 61 to 80 of 241 Records
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2015 (4) TMI 962 - SUPREME COURT
Restoration of appeal - Non deposit pre deposit ordered - Held that:- if we direct the Tribunal to accept the "pre-deposit amount" as deposited by the appellants and hear the appeal on merits, it will not cause any prejudice to either side - Tribunal directed to accept the "pre-deposit amount" paid by the appellants, which is in compliance with its earlier order and then decide the appeal on merits, in accordance with law and without reference to the period of limitation. - Decided in favour of assessee.
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2015 (4) TMI 961 - SUPREME COURT
Classification of manufacturing of floating pontoons which it describes as 'Pantoon with spuds' - Classification under 8905.00 or 8907.00 - Held that:- Tribunal was not agreeing with the order of the Commissioner, the order of the Tribunal should have been a speaking order dealing with the reasoning given by the Commissioner and stating as to why the said reasoning was faulty. - issue as to whether the product is marketable or not was not even raised by the respondent in reply to the show cause notice nor was it argued before the Commissioner and therefore on that ground the Tribunal could not have allowed the appeal. - matter remanded back - Decided in favour of Revenue.
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2015 (4) TMI 960 - CESTAT NEW DELHI
Denial of Cenvat Credit - Charges of availing Cenvat credit merely on the basis of invoices without physical receiving any material - Denial on the basis of statement of supplier - Held that:- From the statement of supplier, it is not coming out that during the period November, 2004 to April, 2005, the manufacturer supplier was not manufacturing the goods. The statement of supplier is vague. Moreover, the appellant was having supporting evidence in the form of check post endorsement, proof of sales tax payment and towards the goods, payment was made through account payee cheque. I also find that at the time of visit of the factory of the appellant, nothing incriminating have been found. If same would have been found, it would have been brought on record, as there is nothing on record, the question arises from where the goods were procured from the appellant for manufacturing excisable goods. When Revenue has alleged that they have not received the goods then duty cast on the revenue to brought on record from where the goods were procured. The allegation leveled against the appellant are only on the basis of statement of supplier. No cross examination of the supplier was afforded to the appellant for fair trial.
As investigation is deficient and no corroborative evidence have been produced by the Revenue on record, the same is the observation of this Tribunal, in the case of Rajan Engineering Works [2011 (7) TMI 626 - CESTAT, DELHI],therefore, I hold that appellant has rightly availed the Cenvat credit on the inputs on the strength of the invoices issued by KPIL. - Decided in favour of appellant.
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2015 (4) TMI 959 - CESTAT NEW DELHI
Cenvat Credit - Utilization of Cenvat Credit lying unutilized in their Cenvat Credit credit availed when goods were dutiable - later goods were exempted - after sometime (about 8 years) exemption was withdrawn - Held that:- The contention of the Ld. AR is that in the clearance of May 2004 the inputs were not same which was used in clearance of May 2004. Therefore, Cenvat Credit cannot be utilized is not acceptable at all as if anybody has procured input for say in the month of April and availed Cenvat Credit thereon. Thereafter, the said inputs are lying in their factory but inputs which were procured in the month of March have been used for the manufacturing of final product and same product has been cleared in the month of April itself, is the contention of the Ld. AR is accepted then the Cenvat Credit is not available for payment of duty by the assessee. This is not the scheme of the Government for availment of Cenvat Credit. Therefore, the argument is not acceptable. Further, I find that the issue whether the Cenvat Credit lying unutilized as on 22.07.1996 when the Vanaspati Oil was exempted from duty can be utilized for the payment of duty on Vanaspati Oil in the month of May 2004 when the duty was introduced is entitled or not, has examined by the Hon’ble High Court of Calcutta in the case of Rasoi Ltd.[2004 (6) TMI 46 - HIGH COURT AT CALCUTTA] in positive manner. Also the facts of case of Agarwal Industries Pvt. Ltd. [2005 (8) TMI 662 - CESTAT BANGALORE] are identical to this case.
Therefore, relying on the various decisions cited by the Ld. Counsel particularly in the case of Agarwal Industries Pvt. Ltd. [2005 (8) TMI 662 - CESTAT BANGALORE], I hold that appellant has correctly utilized Cenvat Credit lying unutilized as on 22.07.1996 for the clearance of May 2004. - Decided in favour of appellant.
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2015 (4) TMI 958 - CESTAT AHMEDABAD
Denial of CENVAT Credit - manufacture of exempted final product - Held that:- Tribunal in the case of Ratnamani Metals & Tubes Limited (2012 (5) TMI 529 - CESTAT, AHMEDABAD) has held that cenvat credit was not permissible on inputs exclusively used in the manufacture of exempted goods. - Commissioner (Appeals) has set-aside the adjudication order on merits and therefore, the alternative submissions of Revenue neutrality and limitation were not considered. In my considered view, the impugned order is not sustainable on merits. But, the respondent should be given an opportunity to place their submissions on limitation and Revenue neutrality before the Commissioner (Appeals). - Matter remanded back - Decided in favour of Revenue.
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2015 (4) TMI 957 - CESTAT NEW DELHI
Confiscation of seized goods - Imposition of redemption fine and penalty - Held that:- On physical verification of the goods, they were contained 52 pallets and 85 cardboard cartons (duly packed containing Tractor parts and forgings etc.) which were lying unaccounted in the factory premises of the appellant and were in fully finished condition. The contention of the appellant that merely non accountal of the goods in the statutory records does not lead for confiscation of the goods, unless there is malafide intention on the part of the appellant is proved. In this case, if the preventive staff did not visit the factory premises of the appellant, these fully finished goods would have been cleared by the appellant clandestinely. Therefore, this clearly shows that these seized goods are ready to clear clandestinely without payment of duty. In these circumstances, I hold that the goods are liable for confiscation and consequently redemption fine and penalty are imposable. Further, I find that the goods were meant for export. In that situation, redemption fine and penalty are excessive and are harsh, therefore, reduced - Decided partly in favour of assessee.
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2015 (4) TMI 956 - CESTAT AHMEDABAD
Wrong availment of CENVAT Credit - Capital goods - Demand of interest and penalty - Held that:- Appellant reversed the credit on being pointed out by the audit party. It is further seen from the show cause notice that the appellant by letter dtd 17.1.2005 informed that they have inadvertently due to human/accounting mistake taken the credit and reversed the credit prior to utilising the same towards payment of central excise duty and therefore interest on reversal of excess credit is not sustainable. It is noticed that the Adjudicating authority had not disputed the fact of non-utilization of credit by the appellant. Credit taken but not utilized till reversal, could not compel the assessee to pay interest. So, the demand of interest on the unutilised cenvat credit cannot be sustained.
Amount of ₹ 74,00,000/- was availed by the appellant in a number of cases, while the input cenvat credit should have been taken only on the duty on the goods as mentioned in the invoice but instead of this, the credit was taken on the full value of the goods. In some cases, credit taken on the basis of Central Excise invoices or bills of entry is more than the amount of Central Excise duty/CVD mentioned in the Central Excise Invoices/bills of entry. Further, cenvat credit amounting to ₹ 28,00,000/- has been taken on cenvated capital goods/input some job work under Rule 4 of the cenvat credit rules, which had not sent back within the stipulated period, but still the cenvat credit had not been reversed. - amount ₹ 74,00,000/- and ₹ 28,00,000/- cannot be treated as a mere erroneous availment of credit. Hence imposition of penalty is warranted. However, considering the facts and circumstance of the case the quantum of penalty should be reduced. - Decided partly in favour of assessee.
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2015 (4) TMI 955 - CESTAT CHENNAI
Benefit of Notification No. 37/2000-CE dated 8.5.2000 - 100% EOU - Held that:- It appears from record that the owner of the quarry is the Government of Tamilnadu. The appellant was user of the same in accordance with agreement referred to above. Perusal of Rule 8A of Tamilnadu Minor Mineral Concession Rules, 1959 shows that grant of quarry lease is the domain of the State Government. In accordance with such Rule, the State has equal power to permit use thereof under any other arrangement for raising the output from the quarry. Since the quarry belongs to the State and appellant was user thereof, the goods procured without payment of excise duty used in quarrying granite and processing thereof for export is not disentitled to exemption benefit under the notification. Not owing lease has not debarred the appellant to quarry granite and process the same. If the condition of processing of procured granite from the quarry of the State under an agreement is fulfilled by the 100% EOU appellant, benefit of the notification is undeniable since any denial thereof would defeat the object thereof. - Decided in favour of assessee.
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2015 (4) TMI 933 - PUNJAB & HARYANA HIGH COURT
Denial of Cenvat credit - Contravention of Rule 57 AB, 57 AC and 57 AE of the Central Excise Rules, 1944 - Availment of Cenvat credit without receiving goods - Held that:- The respondent, unearthed a fraudulent availing of MODVAT/CENVAT credit based upon fraudulent GR receipts and other documents issued by Shri R.K.Gupta, Proprietor of R.K.Enterprises. The respondent recovered fraudulent stamps, documents, GR receipts, books and other material from the premises of Shri R.K.Gupta, who thereafter made a statement admitting to the bogus transactions. It would also be appropriate to point out that Shri R.K.Gupta did not possess any manufacturing facility or any godown from where he could supply goods. The appellant has admittedly availed CENVAT credit on goods received from Shri R.K.Gupta.
It was held by tribunal that "there is no dispute about the fact that GRs under which the goods had been dispatched by the registered dealer M/s R.K.Enterprises are bogus and had been fabricated by him. In fact, the owner of one of the truck which was used for transportation of the goods covered under invoice No.241 & 258 in her statement has clearly stated that she is not aware of the transportation of any goods of M/s R.K.Enterprises.” I also find that appellant has not challenged this order of the Tribunal. Commissioner (Appeal) has held that burden of proof that goods were received and used for manufacture of final product lies on the appellant and same has not been discharged by them. In view of the fact that the order of the Tribunal was not challenged and also the fact that appellant did not prove receipt and use of the goods in the manufacture of find products, there is no infirmity in the order passed by the Commissioner (Appeal). Accordingly I uphold the order in appeal and reject the appeal of the appellant.”
The appellant having failed to prove to the satisfaction of the authorities receipt and consumption of goods received from Shri R.K.Gupta, we have no hesitation in holding that no question of law much less the question of law framed by the appellant arises for adjudication. - Decided against the assessee.
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2015 (4) TMI 932 - CESTAT NEW DELHI
Clearance of Aviation Turbine Fuel from Unregistered export warehouse - Amended Notification No. 47/01-CE (NT) dated 26/6/01 allows removal of petroleum products without payment of duty for export warehousing - Held that:- The appellant have a warehouse for storage of various petroleum products including ATF at Shakur Basti. Beside this, BPCL and HPCL also have similar warehouses at Shakur Basti for the purpose of export. During period prior to 06/9/04, non-duty paid petroleum products including Aviation Turbine Fuel were being received in these warehouses and while the Aviation Turbine Fuel was being supplied as export under bond under Rule 19 to Foreign going aircrafts, other petroleum products were being cleared on payment of duty. During the period prior to 6/9/04 Notification No. 46/01-CE dated 26/6/01 permitted clearances of any excisable goods by a manufacturer without payment of duty to a bonded warehouse for export there from there under Rule 19 subject to condition that the warehouse is located at the approved station and the same has been approved by the Commissioner. This notification issued under Rule 20 (1) of the Central Excise Rules, 2001 was applicable to all excisable goods including the petroleum products and the same is still in force and has not been amended. Notification No. 47/01-CE (NT)dated 26/6/01 also issued under Rule 20 (1) of the Central Excise Rules, 2001 permitted removal of only certain excisable goods mentioned in the table annexed to this notification, without payment of duty to a bonded warehouse or from one bonded warehouse to another bonded warehouse.
By amending Notification No. 17/04-CE (NT) dated 04/9/04 Sl. No. 1 of the table to the Notification No. 47/01-CE (NT) was deleted as a result of which w.e.f. 06/9/04 the petroleum products manufactured by refinery could no longer be cleared without payment of duty to a bonded warehouses. However, as mentioned above, Notification No. 46/01-CE (NT) still continued and has not been amended in any manner. In other words w.e.f. 06/9/04, while the oil refineries could no longer clear the petroleum products without payment of duty to a bonded warehouses for storage there, they could still clear the petroleum products for the purpose of export to a bonded warehouse for export from that warehouse. It is for this reason that the Board vide Circular No. 798/31/04-CX dated 08/9/04 clarified that while the facility of removal of petroleum products without payment of duty from a Refinery to a bonded warehouse or from one bonded warehouse to another bonded warehouse has been withdrawn w.e.f. 06/9/04 vide Notification No. 17/04-CE (NT) dated 04/9/04, the facility of removal of petroleum products without payment of duty for export warehousing continues to be available under Notification No. 46/01-CE (NT). This position was reiterated again in the Board s Circular No. 804/1/2005-CX. dated 04/1/05 and in this Circular the Board also clarified that for the purpose of exports, separate storage of the duty paid and non-duty paid petroleum products is not required subject to condition that tank wise account is maintained about the receipt and discharge of duty paid and non-duty paid petroleum products.
The only objection of the Department in this case is that the Shakur Basti Warehouse is not approved by the Commissioner and separate registration as intermediate warehouse has not been obtained. In our view this objection is without any basis, as we find that immediately after amendment to Notification No. 47/01-CE (NT) by Notification dated 04/9/04, the appellant under their letter dated 13/9/04 addressed to the Commissioner and had requested for converting the existing bonded warehouse at Shakur Basti as export warehouse under Rule 20 for export of ATF and in response to this Circular, the Department had clarified that since they are already holding a Central Excise registration No. AAAC 116814XM001 with the Division, the same registration number would be used for intermediate export warehouse for export clearances. Thus this letter clearly shows that the required registration as intermediate export warehouse has already been granted to the Shakur Basti Warehouse. In view of this, the allegation in the show cause notice that Indian Oil Corporation, Shakur Basti, New Delhi is not a registered export warehouse and therefore is not entitled to receive duty free ATF from IOC s Refinery at Panipat is absolutely without any basis. In view of this, we hold that the impugned order is not sustainable. - Decided in favour of appellant.
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2015 (4) TMI 931 - CESTAT NEW DELHI
Rerolling process of the hot roll flat bars - Classification of process as hot rolling or cold rolling - Manufacturing activity or not - Held that:- Merely on the basis on the types of customers who were buying the products or the statements of the suppliers of the rolling stands that the rolls supplied by them were suitable for cold rolling, it cannot be concluded that the product of the appellant was a cold roll product. In terms of the HSN explanatory notes, if a hot rolled product has been subjected to very light cold rolling process known as skin pass or pinch pass without significant reduction of thickness, the process does not result in change of the character of the finished product as hot roll product. In this case, the stand of the appellant from the very beginning has been that there has not been any significant change in thickness. No evidence has been produce that this claim of the appellant is not correct.
The judgment of the tribunal in the case of BharatBhai B. Gala vs CCE Ahmadabad [2007 (6) TMI 11 - CESTAT,AHMEDABAD]cited by the Ld. DR is not applicable to the facts of this case, as the dispute in this case is as to whether the process undertaken by the appellant is process of hot rolling or cold rolling and this point has to be decided on the basis of the criteria prescribed in this regard in the HSN explanatory notes. No tests have been done to establish as to whether the Appellant s final product has the characteristics of cold rolled product. In view of this, we hold that the impugned order is not sustainable. - Decided in favour of appellant.
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2015 (4) TMI 930 - CESTAT AHMEDABAD
Benefit of SSI exemption Notification No 9/2003-CE dtd 1.3.2003 - assessee cleared their products Zip Fasteners bearing brand name of MIG, GVM and TLR belonging to M/s Madura Coats Pvt Ltd to their own central depot - Held that:- Assessee manufactured and cleared Zip fasteners with sliders bearing the brand /trade name MIG, GUN, TLR belonging to Madura Coats Pvt Ltd. - it is clearly evident from the record that the appellant cleared Zip fasteners with sliders, which were bearing the brand /trade name of Madura Coats Pvt Ltd. Para 4 of SSI exemption notification No 9/2003 provides that the exemption contained in this notification shall not apply to the specified goods bearing a brand name or trade name, whether registered or not, of another person. So, it is to be considered as to whether the goods were cleared by the assessee bearing any brand name of other person. - in the earlier SSI exemption Notification No. 175/86, 1/93 it was specifically mentioned where a manufacturer affixes the specified goods with a brand name , which are absent in the present SSI exemption notification. Admittedly, the assessee had cleared the specified goods bearing brand name of other person. - case of Kohinoor Plastics Ltd (2005 (8) TMI 115 - SUPREME COURT OF INDIA) would squarely apply in the present case. Therefore, we do not find any merit in the submissions of the Ld Advocate. - There is no material available of suppression of facts with intent to evade payment of duty. So, the Commissioner (Appeals) rightly set aside the penalty. - there is no reason to interfere the order of the Commissioner (Appeals) - Decided against Revenue.
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2015 (4) TMI 929 - CESTAT NEW DELHI
Rejection of rebate claim - Pan Masala Packing Machines - Abatement claim on pro rata basis - Held that:- From the language of Rule 10 it is clear that for claiming abatement under Rule 10, there must be total stoppage of the machines which have to be sealed in such a manner that same cannot be operated and besides this, there should be no clearances of any specified goods during the period of stoppage of production for which abatement has been claimed. From the objectives of notifying the goods for assessment and collection of duty based on capacity of production, as mentioned in Section 3A(1) of the Central Excise Act, 1944 and from perusal of the Rules framed under Section 3A(1), it is clear that these rules Shave been framed keeping in view the widespread duty evasion by Pan masala/Gutka manufacturers and the provisions of various rules of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 including Rule 10 thereof must be seen in this background.
The interpretation of Rule 10 sought by the appellant would be not only against the provisions of this rule but would also be against the smooth functioning of the system of collection of duty from Gutka/Pan masala units, as envisaged under these Rules. It appears that it is not the case of the appellant that during the period of abatement, there was total stoppage of production and clearances. - There is very much clear that there should be complete stoppage of the machine which is not in the matter in hand. Therefore, I find that both the lower authorities have concluded correctly that the appellant has not satisfied the condition of the grant of abatement as production in the factory of the notified goods was in operation. Therefore, I hold that the appellant is not entitled for abatement. - Decided against assessee.
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2015 (4) TMI 928 - CESTAT AHMEDABAD
Denial of CENVAT Credit - Bogus invoices - Held that:- Both the authorities below failed to appreciate that the Department had not provided the relied upon documents. On perusal of the Adjudication order, I find that the Adjudicating authority observed that appellants were directed to collect the copies of the relied upon documents from DGCEI office. - Adjudicating authority directed the appellants to collect the documents from DGCEI office, who has not supplied the documents to them, as contended by the respondents. But, the Commissioner (Appeals) observed that the documents were supplied with the show cause notice, which is totally mis-conceived, inconsistent and contradicting. The ld.Advocate Shri S.J. Vyas fairly submit that they could not file the reply to the show cause notice as the documents were not supplied to them. I agree with the submissions of the learned Advocate that if the Department fails to supply the relied upon documents, it is difficult to file the reply to the show cause notice and therefore, the impugned orders are not sustainable on this ground alone. - Matter remanded back - Decided in favour of assessee.
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2015 (4) TMI 927 - CESTAT MUMBAI
SSI exemption - Use of old shareholder's brand name - penalty under Section 11AC - interest under Section 11AB - Held that:- Whole basis of the case that the brand name in question were earlier used by same company under different management and thereafter due to change of management the brand name should have been transferred and in absence of that it cannot be said that brand name belong to the respondent. As far as this basis of demand, we completely disagree with the Revenue that admittedly there is no change in the identity of the company, it is only a change of management. Change of management does not make in change of identity of the company. As regard private limited company it is the company who holds the identity and not share holders, therefore company remained intact irrespective of change of share holders. - In this position if the brand name were owned and used by the same company under the old management there is no need of transfer of brand name from old management to new management because brand name is not owned by the management but it is owned by the company only. - when brand names belong to company how it could be transferred from earlier shareholder to present shareholder. This finding of the Ld. Adjudicating authority is absurd and beyond common sense. In view of our discussion we are of the considered view that the order of the Ld. Commissioner (Appeals) is proper and legal which does not require any interference, therefore the same is upheld - Decided against Revenue.
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2015 (4) TMI 926 - CESTAT MUMBAI
Valuation of goods - manufacture of acetylene gas - appellant also manufacture the same product on job-work goods, arrived at the assessable value on the basis of sale price provided by their principal, M/s. BOC Ltd. and discharged the excise liability on the said value - Revenue contends that sale price of the goods manufactured and sold by the appellant to the independent buyer (other than job worker) should be applied for the purpose of valuation of job-work goods also - Held that:- The appellant is manufacturing acetylene gas on job-work basis where the principal M/s. BOC Ltd. is supplying the inputs. The appellant is paying excise duty on the sale-price at which the goods is sold by their principal, M/s. BOC Ltd. As regards the valuation of job-work goods, it is settled by the hon'ble Supreme Court in the case of Ujagar Prints (1988 (11) TMI 106 - SUPREME COURT OF INDIA) that the valuation of job-work goods should be arrived at by taking the cost of raw material plus job-charges including profit of the job-worker. In the present case, the appellant is applying the sale value of the principal and it is not under dispute that the said value is lower than the value computed in terms of hon'ble apex Court judgment in Ujagar Prints (1988 (11) TMI 106 - SUPREME COURT OF INDIA). So long as this factual position is not in dispute, we find that adoption of the value by the appellant is absolutely legal and correct. - Decided in favour of assessee.
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2015 (4) TMI 897 - CESTAT NEW DELHI
Demand of differential duty - Valuation of goods - inclusion of freight and transit insurance in the assessable value - Sale on FOR destination basis - Held that:- The appellant have certain quantum of sale on FOR destination basis in respect of which they have paid duty on FOR destination price which included the element of freight and transit insurance. - In the non- FOR sales, the appellant, on the request of the customers arranged the transportation of the goods and while in some cases, they have paid freight which was recovered from the customer, in other cases, part of freight was paid by the appellant and balance was paid by the customer and part of the freight paid was recovered from the customer and in some cases the entire freight was paid by the customers. The appellant, in all such cases, have taken general insurance policy against the loss of the goods despatched by them to the customers during the transit and proportionate amount of premium is charged by the appellant from their customers as transit insurance.
However, on perusal of some of the invoices issued by the appellant which have been placed on record, it is seen that each invoice mentions that though the appellant take every care for packing and forwarding, but they do not accept liability for any loss, breakage or shortage of the goods once, the goods have left the units and that the goods are always despatched at the buyers risk. This fact is not disputed by the department. The department also does not dispute that in case of loss of the goods or damage to the goods during transit, it is the customers who get survey conducted and on the basis of survey report sent by the customers to the appellant, the appellant claim compensation amount from the insurance company for the goods lost/damaged during transit and thereafter pass on the same to the customers. - every invoice mention that the goods have been despatched at the buyer s risk and that the appellant do not accept any responsibility for loss or damage or shortage of the goods after the goods left from the works. The department also does not dispute that in case of loss of goods during transit it is customer who gets the survey done and on the basis of survey report, the appellant receive compensation for the loss of the goods from the insurance company but the entire compensation is passed on to the buyers without retaining any part of the same.
Even though the appellant have taken transit insurance policy of the goods in their name, they cannot be treated as owner of the goods during transit. We find that the Tribunal in the case of Associated Strips Ltd. (2002 (3) TMI 96 - CEGAT, COURT NO. I, NEW DELHI) has held that merely because at the instance of the buyer, the assessee has taken transit insurance it does not indicate that the ownership of the goods remained with the assessee during transit. - in view of section 23 and 39 of the Sale of Goods Act, 1930, the goods would be treated as delivered to the buyer and property of possession of the goods and passed on to the buyer when the goods have been handed over to the transporter and that the assessee arranging for transit insurance would nowhere lead to inference that the assesse had retained the ownership of the goods during transit until delivery of the goods at the buyer s premises. - impugned order is not sustainable - Decided in favour of assessee.
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2015 (4) TMI 896 - CESTAT MUMBAI
Benefit of exemption Notification No. 15/2005-CE dated 02.05.2005 - Sale of Cocoa shells - Exciseability of by product - Held that:- cocoa shells arise during the manufacturing process of cocoa butter and cocoa powder. The appellant is not manufacturing cocoa shells it is arisen unavoidably during the process of manufacturing cocoa butter and cocoa powder. Therefore the cocoa shells is nothing but by-product or waste. This shows that Rule 6(2) of CENVAT Credit Rule and payment of 10% provided therein is not applicable. This issue is squarely covered by the Hon'ble Supreme Court judgement in the case of Rallis India (2008 (12) TMI 46 - HIGH COURT BOMBAY) and also Hindustan Zinc Ltd. - [2014 (5) TMI 253 - SUPREME COURT]. - lower authority has wrongly confirmed the demand of 10% in terms of rule 6(2) of the CENVAT Credit Rules, 2004. Therefore, the impugned order is set aside - Decided in favour of assessee.
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2015 (4) TMI 895 - CESTAT NEW DELHI
Demand of differential duty - Suppression of value of goods - Inclusion of cost of cement coating and epoxy coating - Held that:- Cement coating had been got done by the appellant on job work basis through some job workers and the duty demand in respect of the value of cement coating has been dropped by the Commissioner himself and as such there is no dispute in respect of the same. - However, according to the appellant the epoxy coating had also been done through M/s Vipul Colour Coating outside the factory and hence, the value of this coating is not includible in the assessable value. However, on this point we find that Sh. K. G. Mantri, General Manager (Commercial) of the appellant company is his statement dated 16.02.2002 on being specifically asked, has stated that Cenvat Credit of the material used for coating was being availed by them. - value of the epoxy coating would be includable in the assessable value of the pipes, irrespective of whether the coating is done inside the factory or outside the factory. However, the Commissioner in the impugned order has not gone into this point for which, in our view, this matter would have to be remanded.
If the appellant had availed cenvat credit in respect of the coating material and did not include the value of the coating in the assessable value of the pipes and this fact was not specifically intimated to the Department, it would amount to suppression of the relevant facts from the Department and extended period under proviso to section 11A(1) would be invokable. - Matter remanded back.
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2015 (4) TMI 894 - CESTAT NEW DELHI
Exemption under notification no. 6/2000-CE dated 01.03.2000, 3/2001-CE dated 01.03.2001, 6/2002-CE dated 01.03.2002 - whether the appellant for availing the exemption under notification no. 6/2000-CE, 3/2001-CE and 6/2002-CE were using fly ash to the extent of 25% or more in the manufacture of ACC pipes/ couplers - Denial of cross examination request - Held that:- Appellant in this regard were maintaining the records as prescribed in the exemption notification and were also filing a monthly return along with ER-1 returns. However, on this point the dispute is that these records were not been properly maintained as according to the Department some of the important columns regarding total quantity of finished products, total quantity of fly ash used and percentage of the fly ash in the finished products were being left blank. - It is seen that in April, 2003, the appellant premises had been visited by the Jurisdictional Central Excise Officers for checking the use of fly ash and at that time no irregularity had been found. In view of these circumstances, we are of the view that the appellants request for cross examination of Shri Darpan Jain of M/s Kaka Roadlines, Sh. Chandmal Kumawat of M/s Kumawat Industris the fly ash supplier and Sh Kailash Sharma of Shubham Fly Ash Products and M/s Nirmala Fly Ash Industries is genuine.
It is also seen that in terms of section 9D(2) of Central Excise Act, 1944, the provision of sub section(I) shall, so far as may be, apply in relation to any proceeding under this act other than proceeding before the court as they apply in relation to proceedings before the court. Under section 9D(1) in course of prosecution proceedings, for offences under the Central Excise Act, 1944, the statement of a person can be used against an assessee only when the person who has made the statement is examined as a witness in that case before the court and the court is of the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. - In terms of sub section (2) of section 9D, the provisions of sub-section (1) have to be applied, as far as possible for adjudication proceedings also. Therefore, when the Department s case against an assessee is mainly based on statements given by some persons and those statements are not corroborated by some other independent evidence, and contradict each other, for using those statements, against the assessee for proving the charge of duty evasion against their, their cross examination would be necessary. - Matter remanded back - Decided in favour of assessee.
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