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Central Excise - Case Laws
Showing 121 to 140 of 196 Records
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2014 (6) TMI 448 - CESTAT BANGALORE
Denial of refund claim - unjust enrichment - Central Excise duty on Biris - excess payment of duty despite the fact that duty was reduced - price inclusive of duty - uniform price - stability in price - sale and purcase between primary societies and central society - Held that:- appellants were not showing the duty separately in their invoices and it is their claim that prior to 1-3-2007 and after 31-7-2007 and also in between the price of biris remained same irrespective of the amount of duty paid mainly whether it is Rs. 8/- or Rs. 10/-. - Following decision of Union of India v. Mulder India (P) Ltd. [2006 (8) TMI 210 - HIGH COURT OF KARNATAKA AT BANGALORE] - Decided in favour of assessee.
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2014 (6) TMI 420 - CESTAT MUMBAI
Duty demand - Non putting MRP on export of biscuits - CENVAT Credit - credit on the biscuits manufactured and exported - Held that:- Law made in India applies to the whole of India or within the territory situated in India. They do not have extra territorial jurisdiction. This applies to Standards of Weights and Measures Act, 1976 and the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. Therefore, the requirement of affixing MRP is only meant for goods required to be sold in India and it has nothing to do with the goods exported. Therefore, any exemption given on the basis of MRP applies to goods sold in India and has no application whatsoever in respect of identical goods exported. The case laws cited by the appellants also confirm these facts. As held by the Hon'ble High Court of Bombay in Repro India Ltd. case (2007 (12) TMI 209 - BOMBAY HIGH COURT), even in respect of exempted goods, CENVAT credit can be availed on inputs/input services if such goods are exported. - Decided in favour of assessee.
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2014 (6) TMI 419 - PUNJAB & HARYANA HIGH COURT
Penalties on respondents-dealers - facilitated others in taking fraudulent CENVAT - paper transactions without actual movement of goods - The party was a manufacturer on paper - Held that:- This Court in Ashish Gupta and Vee Kay Enterprises’s cases [2011 (3) TMI 133 - PUNJAB AND HARYANA HIGH COURT] had held that Rule 26(2) of the Rules by virtue of which an assessee was held liable for penalty where invoices were issued without any movement of goods, was inserted by notification dated 1.3.2007 which was not applicable to alleged acts committed prior to the said date. Further, in view of the findings recorded by Commissioner (Appeals) to the effect that Rule 25(1) (b) of the Rules was not attracted to the facts of the present case, the aforesaid judgment does not advance the case of the revenue. However, the Commissioner (Appeals) and the Tribunal on facts deleted the penalty.
Revenue has filed appeals where no penalty was imposed on persons who issued invoices without delivery of the goods prior to amendment of sub rule (2) of Rule 26 of the Central Excise Rules, 2002. After considering the above question of law, it has been held that where a person merely arranges modvatable document to the manufacturer without actual delivery of goods, penalty could not be imposed under rule 209A. Rule 26(2) of Central Excise Rules, 2002 prior to amendment on 1.3.2007 is akin to Rule 209A. - Decided against Revenue.
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2014 (6) TMI 418 - CESTAT MUMBAI
CENVAT Credit - whether the appellant is eligible to take CENVAT credit of the service tax paid on input services availed at the job-worker's premises - Held that:- services were availed at the job-worker's premises in or in relation to the manufacture of excisable goods arising at the intermediate stage. There is also no dispute that the appellant has borne the incidence of such service tax taxation. If that be so, we do not understand how the appellant can be denied the benefit of inputs/input services tax credit. Input services defined in Rule 2(l) of the CENVAT Credit Rules, includes various services which are used in or in relation to the manufacture of dutiable final products whether directly or indirectly and the scope term is very wide as held by the Hon'ble Bombay High Court in the case of Coca Cola India Pvt. Ltd. (2009 (8) TMI 50 - BOMBAY HIGH COURT). Further, we observe that when the same services were availed in appellant's own factory premises, the adjudicating authority has granted them the benefit of CENVAT credit. If that be so, merely because the services were availed at job-worker's premises, there is no reason why the same should be denied. - Stay granted.
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2014 (6) TMI 416 - CESTAT KOLKATA
Waiver of pre deposit - penalty under Rule 173Q - Discrepancy in RG-1 register - Held that:- The Applicant since beginning in their reply to the demand Notice have been claiming that the difference in the figures, has been due to clearance of goods for captive consumption. I also find that in the balance sheet against the said production figures, it has been mentioned by way of insertion of ‘notes’ that the said figures also include captive consumption, sample issues and sub-contracted items. No other corroborative evidences have been produced by the department in support of their claim that the goods were cleared clandestinely. Thus, prima facie the Applicant could able to reconcile the differences between the production figures shown in the RG-1 and in their balance sheet. In these circumstances, the Applicant could able to make out a prima facie case for total waiver of pre-deposit of dues adjudged - Stay granted.
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2014 (6) TMI 415 - CESTAT CHENNAI
Extension of stay granted - Cross appeal by revenue for vacation of stay order - Section 35C(2A) - Held that:- Hon’ble Supreme Court in the context of insertion of sub-section (2A) of Section 35C of the Act provided that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall on the expiry of that period, stand vacated, observed that sub-section which was introduced in terrorem cannot be construed as punishing the assessees for matters which may be completely beyond their control. In the present case, appeal was not disposed of within the stipulated period as specified in Section 35C and therefore vacating the stay order amounts to punishing the assessee. We find that the decision of the Hon’ble Supreme Court was not placed before the Tribunal while passing the Misc. Order dated 5-6-2012 and therefore the said order is not applicable in the present case - Extension of stay granted.
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2014 (6) TMI 414 - CESTAT CHENNAI
Default in payment of duty - violation of Rule 8(3A) - Utilization of cenvat credit during period of default - Clandestine removal of goods - Held that:- Clearances made by the applicant were not clandestine removals because the clearances were reported in the returns filed by applicant. The applicant was liable to pay duty in cash, when they were in default. Any payment made through Cenvat credit can be taken as proper discharge only when no bar as per Rule 8(3A) of Central Excise Rules, 2002 was operating. If payment was made through credit after they came out of defaulting period it would be acceptable as proper discharge. The payment prior to coming out of default cannot be refused for the reason that it was paid earlier but for the fact that interest has to be paid. Therefore, we order the applicant to calculate interest on clearances during the default period till Mar.09 to be calculated for each clearance from date of clearance to the end of defaulting period for payments made through Cenvat and deposit such amount as pre-deposit for admission of the appeal - Stay granted partly.
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2014 (6) TMI 388 - CESTAT AHMEDABAD
Confiscation of goods - Mens rea - Clandestine removal of goods - Penalty - Whether ‘mens-rea’ is a pre-condition for confiscation of unaccounted exciseable goods under Rule 173Q (a), (b), (c) of erstwhile Central Excise Rules, 1944 and present Rule 25 (a), (b), (c) of Central Excise Rules, 2002 - Held that:- element of mens rea is normally required to be shown for imposition of penalty. - Department has failed to prove the element of mens rea for imposition of penalty. It has been so held by the Commissioner as well as the Tribunal that no case was made out to impose penalty. The finding recorded that no case was made out for imposition of penalty is not shown in any manner to be perverse - if there is no intention or suggestive of intention to remove the goods clandestinely, the same cannot be confiscated - decided in favour of assessee.
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2014 (6) TMI 387 - CESTAT MUMBAI
Valuation of goods - s.4(1)(b) of CEA, 1944 - Rule 6 of Valuation Rules, 2000 - royalty/licence fee paid by Tata Sky to NDs for the download of the software by the appellant - Ehancement in valuation of goods - Revenue contends that STB manufactured and supplied by the appellant is sought to be enhanced in terms of the provisions of Rule 6 of the Central Excise Valuation Rules, 2000 - whether the cost of remote control supplied free of charge by the buyer can be added in the value of STBs supplied by the appellant to the buyer - Held that:- both the smart card (viewing card) and the software are an integral part of the STB manufactured and supplied by the appellant. From the statement of Sri. A.K. Mehrotra, Group Financial Controller, it is evident that the STB contains PCB boards and various electronic components which include integrated chips (IC). These ICs are first put on to the AP 600 programming machine from where the software is copied on to the IC and ICs are then fixed on the PCB board through surface mounting technology process. As per system integration agreement, the STB integration costs refer to the cost of development of the software, which is required to be supplied by the manufacturer. NDS assists the manufacturer to develop this software to be loaded on to the STB - subscriber access card is the key component of the conditional access system and it is an active security device of the STB and hence an integral part of the STB. Therefore, the cost of the same has to be included in the assessable value of the STB in terms of Rule 6 of the Central Excise Valuation Rules.
Pre-loaded operating systems software in the Hard Disk Drive of the laptop forms an integral part of the laptop and therefore, the cost of such pre-loaded software forms part of the value of the laptop - cost of software which has been loaded on to the flash memory which in turn has been soldered onto the PCB of the STB forms an integral part of the STB and therefore, the value of the STB shall include the value of such software also. In these circumstances, we uphold the confirmation of duty demand against the appellant by including the value of remote control, smart card and software in the value of STB. Consequently, the appellant shall also be liable to interest on the said duty demand confirmed. - Decided against the assessee.
Penalty under Rule 25 of the Central Excise Rules - whether the penalty should be imposed equal to the duty sought to be evaded or not - Held that:- No doubt, the assessee did not declare or reveal to the department the cost of items supplied free by the buyer and the non-inclusion of cost of such free supply in the assessable value of the STB manufactured and cleared by them. The appellant also did not inform or declare to the department the existence of various agreements relating to the design, manufacture and supply of the STB which could have supported its contention that it did not have any intention to evade payment of duty. Since the issue entailed interpretation of the provisions relating to valuation, in our considered view, imposition of penalty equal to the duty is not warranted. A penalty of (say) 5% of the differential duty demanded would suffice for contravention of the statutory provisions - Decided partly in favour of assessee.
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2014 (6) TMI 386 - CESTAT BANGALORE
CENVAT credit on Capital goods - credit of additional customs duty - composite block making plant - shot blasting machine - Since CENVAT Credit was not admissible Assessee revered the credit - Refund claim filed for take back the credit - Revenue entertained a view that appellant was not eligible for CENVAT credit in respect of shot blasting machine which was part of the block making plant but was exclusively used for finishing the pavers manufactured by the appellants. The pavers manufactured by the appellants were exempt from payment of duty if more than 25% of furnace slag was used and the appellant was availing this benefit from March 2008 - Held that:- even though the machine is part and parcel of block making plant, its utility is basically for finishing pavers only. Therefore, it cannot be said that Department was wrong in entertaining a view that CENVAT credit in respect of shot blasting machine and the eligibility for the same can be considered separately. - Decided against the assessee.
Regarding subsequent use in dutiable goods - Held that:- Appellant took the credit in September 2008 whereas the clearance of dutiable product started from March 2009. - at best, they can be asked to pay the interest which is applicable for the period from September 2008 to March 2009 when they started to manufacture goods which suffered duty. - Otherwise, the issue is covered by the decision of Hon’ble High Court of Gujarat in the case of CCE&C, Vadodara-II Vs. Gujarat Propack [2008 (9) TMI 170 - GUJARAT HIGH COURT] - assessee allowed to take back the credit - Decided partly in favor of assessee.
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2014 (6) TMI 385 - CESTAT NEW DELHI
Duty demand - CENVAT Credit - whether the service of procuring sales orders of cement through commission agents i.e. business auxiliary services being received by them is covered by definition of ‘input service’ or not - Held that:- while there is a direct judgement of Hon’ble Punjab & Harayana High Court in the case of Ambika Overseas (2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT), which is in favour of the appellant, there is another judgement of the Hon’ble Gujarat High Court in the case of Cadila Health Care Ltd. (2013 (1) TMI 304 - GUJARAT HIGH COURT), wherein in para 5.2, a contrary view has been taken and in that judgement, Hon’ble Gujarat High Court after discussing in detail, has held that the service of commission agent for procuring sales orders is neither covered by the expression ‘sales promotion’ nor by the expression ‘activities relating to business’. Hon’ble High Court in this judgement has observed that the term, ‘activities relating to business’ in the definition of ‘input service’ has to be interpreted on the basis of the activities mentioned after the words ‘such as’ following this expression and that the activities covered by this expression must be similar to the activities which are mentioned as illustrative activities and on this basis, Hon’ble High Court has given a finding that procuring sales orders through commission agents is not an activity, which is similar to the activities mentioned as illustration of the ‘activities relating to business’.
Rule 2 (l) of Cenvat Credit Rules, 2004 was amended w.e.f. 1.4.2011 and by this amendment, the expression ‘activities related to business’ in the inclusive portion of the definition of ‘input service’ was excluded. However, the expression ‘advertisement or sales promotion’ was retained. The Board vide Circular No.943/4/2011-CX dated 29.4.2011 (S.No.5 of the Table) in respect of the question ‘Is the credit of Business Auxiliary Service (BAS) on account of sales commission now disallowed after the deletion of expression ‘activities related to business’ clarified as under The definition of ‘input service’ allows all credit on services used for clearance of final products upto the place of removal. Moreover, activity of sale promotion is specifically allowed and on many occasions, the remuneration for the same is linked to actual sale. Reading the provision harmoniously, it is clarified that credit is admissible on the services of sale of dutiable goods on commission basis - service of commission agents (Business Auxiliary Service) is covered by the term ‘advertisement or sales promotion’. In my view, there is nothing in this circular which is contrary to the provisions of law and hence the same would be binding on the Departmental officers. Thus, in view of this circular also, though it is in respect of definition of ‘input service’ during period w.e.f. 1.4.2011, commission agents service would be cenvatable as the term ‘advertisement and sale promotion’ was there in the definition of input service even during period prior to 1.4.2011 - Decided in favour of assessee.
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2014 (6) TMI 384 - CESTAT NEW DELHI
Duty demand - Unaccounted receipts - Shortage in stock - Recovery of loose slips - Held that:- The duty demand of Rs. 2,83,703/- based on allegation of unaccounted receipt of 77.755 MTs of MS angles from S.S.Steel and their use in unaccounted manufacture and clearance of MS angles, the unaccounted receipt of this quantity of MS ingots mentioned in the paper slip had been accepted by Sh. Ranka in his statement. His subsequently plea that out of 77.755 MT of MS angles, 47.715 MT of ingots had actually received from M/s. Aggarwal Steel and is duly accounted for in Form-IV Register has been examined by the Commissioner (Appeals) and he has held that this plea is not acceptable on the ground that the value of the two consignments are different. - Thus the 77.755 MT of MS ingots mentioned in the paper slip as received from S.S.Steel had not been accounted for and hence duty demand of Rs, 2,82,703/- on the finished goods made out of these unaccounted ingots has been correctly upheld.
The loose paper slips, in question, containing details of clearance of finished goods on 30.06.08 and details of receipt of MS ingots from S.S. Steel have been recovered from the factory premises of the appellant. Therefore in term of the provision of Sec 36A of the Central Excise Act, 1944, there shall be presumption about the truth of the contents of these paper slips and the burden is on the appellant to prove that their contents are false. In this case, Sh. Ranka, in his statement by explaining the entries in the paper slips has accepted the correctness of their contents. Therefore, there is no reason for discarding this evidence for the purpose of proving the allegation of duty evasion against the appellant - Once on the basis of the documents recovered from a manufacturer’s premises, unaccounted purchase of any of the principal raw-material or unaccounted sale of finished goods is clear, a presumption can be made of unaccounted manufacture and clearance of the finished goods without payment of duty and unless the manufacturer produces cogent and concrete evidence in his defense, the allegation of clandestine clearances of finished goods would be treated as proved and duty demand on this basis can be confirmed - duty demand and the penalty has been correctly upheld. - Decided against assessee.
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2014 (6) TMI 383 - CESTAT KOLKATA
Demand of differential duty - Classification of goods - manufacture of Rolls, Pusher, Ejector, Speed Increaser, Roller Table, Cold Shear, Pinch Roll etc. and also parts of Rolling Mills. - Chapter Sub-heading 8455.10 or under Chapter Sub-heading 8455.90 of CETA, 1985 - Bar of limitation - It is alleged that the Appellant did not declare the manufactured goods as ‘parts’, but cleared the same declaring as ‘for use’ in the Rolling mills - Held that:- Appellants has not seriously disputed the classification of the aforesaid items under Chapter Sub-heading 8455.90 as ‘parts’, before us. Thus, following the decision of this Tribunal in Simplex Engg.& Foundry’s case (2004 (8) TMI 296 - CESTAT, NEW DELHI), we hold that the items in dispute merit classification under Chapter sub-heading 8455.90. - Decided against the assessee.
Extended period of limitation - Held that:- There is no dispute that the declaration had been filed under Rule 173B of the erstwhile Central Excise Rules, 1944, and duly acknowledged by the Department. But, no action had been initiated against the Appellants for recovery of the differential duty due to wrong classification of the items mentioned in the said declaration within normal period as prescribed under Section 11A of Central Excise Act, 1944.
There is no merit in the allegation of the Department that lesser duty had been paid by the Appellant resorting to suppression or mis-declaration of facts. - Following decision of Tata Iron & Steel Co. Ltd. Vs. Union of India & Others reported in [1988 (5) TMI 39 - SUPREME COURT OF INDIA] - demand beyond the normal period of limitation is not sustainable - Decided in favour of assessee.
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2014 (6) TMI 382 - CESTAT NEW DELHI (LB)
Clandestine removal of goods - presumption - proof by identification of handwriting or signature - evidential value of opinion of the Govt. handwriting expert - manufacture of ‘Shimla’ & ‘Vansh’ brand Gutkha, Pan Masala & Mouth Freshner which is sold in retail pouches - majority order - Held that:- opinion of handwriting expert is a weak evidence which should be taken with caution and is not reliable unless supported by other independent evidence.
The allegation against the Respondent Company is sought to be proved by the opinion of the handwriting expert Sh. C.T. Sarwate, as Sh. Arvind Gupta of M/s. Hans Travels has not named Sh. Subhash Joshi and Sh. A.C. Upadhyay, the employees of the Respondent, as the persons who had taken delivery of the consignments of outer pouches in his presence and had signed the delivery sheets and neither anyone familiar with their signatures has identified the signature on the luggage delivery sheets nor they have accepted the signature on the luggage delivery sheets as their signatures. For testing the correctness of the opinion of Sh. Sarwate, his cross examination was necessary, as other handwriting expert Sh. A.N.Ganorkar has given a contrary opinion and both Sh. Subhash Joshi and Sh. A.C.Upadhyay have stated that signatures on the documents of M/s. Hans Travels are not their signatures. But cross examination of Sh. Sarwate was not possible on account of his death. Therefore, the opinion of Sh. C.T.Sarwate, by itself, has no evidentiary value and in view of the judgments of Apex Court, and various high courts, mentioned above it not even admissible as evidence.
The allegation of un-accounted receipt of outer pouches for packing of retail pouches of Gutkha, Pan Masala and Mouth Freshner cannot be upheld, the presumption of un-accounted manufacture of retail pouches of Gutkha, Pan Masala and Mouth Freshner and their clearance without payment of duty, cannot be made and as such, the duty demand against the Respondent cannot be upheld.
The Commissioner has dropped the duty demand only on the ground that merely on the basis of alleged receipt of outer pouches for packing retail pouches of Gutkha, Pan Masala & Mouth Freshner without any other evidence regarding procurement of other raw-materials like plastic lamination for retail pouches, Supari, Kattha, Tobacco etc. the duty demand is not sustainable. - for making such a presumption of fact under Section 114 of the Indian Evidence Act, which would shift the burden of proof to the assessee, there must be cogent and concrete evidence of the fact of un-accounted receipt of any one or more of the principal raw-materials or evidence of un-accounted consumption of the principal raw-materials which admittedly had been received.
Merely on the basis of the fact that there was no production of Shimla 2-in-1 Pan Masala during Sept.01 to Dec.01 and during this period only 21,800 outer pouches for Shimla Gutkha had been used, it cannot be presumed that 52,800 outer pouches for Shimla Gutkha and 16000 outer pouches for 2-in-1 Shimla Pan Masala had been used in the manufacture of un-accounted Shimla Gutkha and Shimla 2-in-1 Pan Masala, which had been cleared clandestinely without payment of duty, as their consumption for accounted production during August 2001 has not been ruled out. - Decided against Revenue.
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2014 (6) TMI 345 - SUPREME COURT
Goods supplied to Indian Navy - consumption on board vessel - End User Certificate - Valid or not - Notification No. 64/95-CE - Held that:- Subject goods were supplied by the respondent as stores for consumption on board vessel of the India Navy cannot be said to be legally flawed. END USER Certificate is not applicable only for the purpose of Clause 21 of Exemption Notification 64/95 Central Excise and not in respect of Clause 3. The End User Certificate leaves no manner of doubt that the subject goods were purchased by Material Organisation exclusively for the consumption on board warships of the Indian Navy. This satisfies the twin requirement of Clause 3. - Decided against Revenue.
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2014 (6) TMI 344 - KERALA HIGH COURT
Waiver of pre deposit - Alternate remedy - Maintainability of appeal - Held that:- Proper remedy of the petitioner is to avail the statutory remedy by way of appeal and as such, this writ petition is not maintainable - petitioner is granted a further period of 'six' weeks from the date of receipt of a copy of the judgment to effect the pre-deposit, as ordered by the appellate Forum, upon which the appeal preferred by the petitioner shall be considered and entertained on merits. The recovery proceedings shall be kept in abeyance till such time - Decided conditionally in favour of assessee.
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2014 (6) TMI 343 - CESTAT AHMEDABAD
Refund of accumulated unutilized Cenvat Credit - closure of the factory - surrender of central excise registration - Held that:- the refund of the appellant does not fall under any of the rules and that there are no express or implicit provisions in the Central Excise Act and Cenvat Credit Rules for grant of refund of Cenvat Credit balance lying unutilized at the time of closure of the unit. - The findings of the first appellate authority is in variance of law as has been settled by the Hon’ble High Court of Karnataka in the case of Union of India Vs. Slovak India Trading Co. Pvt. Ltd. [2006 (7) TMI 9 - HIGH COURT OF KARNATAKA (BANGALORE)] wherein it was held that, "There is no express prohibition in terms of Rule 5. Even otherwise, it refers to a manufacturer as we see from Rule 5 itself. Admittedly, in the case on hand, there is no manufacture in the light of closure of the Company. Therefore, Rule 5 is not available for the purpose of rejection". - This decision was followed by the Honble High Court of Bombay in the case of CCE, Nasik Vs. Jain Vanguard Polybutylene Ltd. (2009 (6) TMI 790 - CESTAT, MUMBAI)
Judgment of the Hon’ble High Court of Karnataka in the case of Union of India Vs. Slovak India Trading Co. Pvt. Ltd. (supra) was cited before the Larger Bench and it was taken note of, but no reasonings have been recorded as to why the said judgment of the Hon’ble High Court of Karnataka was not applicable in the similar / identical situations. In my view, the judgments of the Hon’ble High Court of Bombay and Karnataka will have to be followed by the Tribunal in an identical / similar situation. In the case in hand, I find that the issue involved is identical to the issue which was before the Hon’ble High Court of Bombay and Karnataka. - Decided in favour of assessee.
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2014 (6) TMI 342 - CESTAT MUMBAI
Classification of goods - classification of ‘Alovit Cream’ consisting of ‘Aloe extract 10% w/w, Tocopheryl Acetate I.P. 0.5% w/w and Moisturising cream base, manufactured by the appellant, M/s. Ciens Laboratories i.e. whether under CETH 3003.10 as ‘P or P Medicines’ or under CETH 3304 as ‘Skin Care Products’ - Held that:- From the technical literature available on the subject matter by way of ‘Martindale - The Complete Drug Reference’, U.S. Pharmacopeia, the expert opinion tendered by Shri M.K. Pradhan, it is seen that ‘aloe extracts’ has therapeutic properties and has been used in various treatments especially in ayurvedic and homeopathic treatments for treatment of skin disorders such as psoriasis, eczema, hyperpigmentation, etc. The product literature and product packing clearly indicates that ‘Alovit Cream’ is for use in treatment of skin diseases mentioned above and the product has to be used after consultation with the Doctor.
The certificates issued by various Skin Specialists also clearly indicates that ‘Alovit Cream’ is prescribed as a drug for treatment of skin diseases. The licence issued by the Drug Control authorities also shows that the product is a drug. In the light of these evidences submitted by the appellant, it is clear that the product merits classification as ‘P or P’ medicine under CETH 3003.10. As against these evidences adduced by the appellant, the Revenue has not made any attempt, either to counter these evidences or to canvas their classification under CETH 3304 that the product is predominantly used as skin care product - no evidence was led by the appellants in those cases to establish that the products manufactured by them were medicines. In the case before us, there are specific and compelling evidences by way of technical literature, expert opinion, Doctor’s certificates and product literature adduced by the appellant in support of their contention that the product manufactured by them is a medicine - Decided in favour of assessee.
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2014 (6) TMI 341 - CESTAT NEW DELHI
Valuation of goods - reimbursement of part of advertisement expenses - difference between transit insurance recovered from buyers and insurance paid - interest paid to financial institutions against bill discount - Turnover tax - Writing off calls for reversal of Cenvat credit of the entire amount - Cenvat credit on First-aid Kit - held that:- Relevancy of such cost to manufacture was not brought out by Revenue. Therefore, it is not possible to hold that such expenses shall be integral part of cost of manufacture. Accordingly the facts and circumstances of the case read with Para 4 of adjudication order clearly brings out that publicity and advertisement was borne by the dealer at his choice to promote sale that does not mean that assessable value shall be hiked by the extent of reimbursement of part of above expenditure.
Cost which makes the goods movable from factory is to only form part of the assessable value of goods cleared. Therefore, excess if any remains after payment of transit insurance is beyond scope of Central Excise Act, 1944 to be included in assessable value which may be subject matter of Income-Tax.
Wherever a seller finds working capital crunch, financing facility is extended by bankers to accommodate the seller to realise their price on presentation of the bill. Wherever the seller is able to realise sale price on spot such facility is not resorted to. Therefore, addition of interest paid on bill discounting shall result in anamoly and arbitrary taxation for which such expenditure needs to be excluded from assessable value.
Adjudication finding does not show whether there was discrepancy between average tax incidence paid and actual tax liability payable was examined by the authorities below. So also the modus operandi followed by the appellant was not examined to find out the truth. Therefore, making finding by Tribunal at this stage is premature. Hence, this aspect is remanded to the learned Adjudicating Authority. - Decided in favour of assessee.
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2014 (6) TMI 340 - CESTAT NEW DELHI (LB)
Duty demand - determination of quantities of quantity of paper and paper products - whether the weight of wrapper (packing paper and paper board) shall be taken into account to determine the quantity cleared in a financial year - Denial of Exemption under Notification 6/2001-CE (S. No. 86) dated 01-03-2001 and Notification 06/2002-CE (S. No.86) dated 01-03-2002 - Difference of opinion - Majority order - Held that:- appellants have not disclosed gross weight and net weight in respect of each packet of the paper in any of the documents occasioning clearance during material period. Normally when a container contains contents, the gross weight and net weight are exhibited on the container. In the present reference weight of contents and container was not exhibited conspicuously. Weights and Measures Act has adopted the rationale of gross weight and net weight for cons umer protection and declaration of MRP. This is to save the consumer from exploitation.
When the appellants did not challenge manufacture of the wrapper by them and those were cleared and were excisable and to be accounted for, appellant should have come out with clean hands to prove the weight of wrappers cleared. But they have chosen a way to avoid such disclosure - duty stand confirmed along with confirmation of interest against the respondents. However, penalty is reduced to 25% of duty if the duty confirmed is deposited within 30 days of receipt of final order - Decided partly in favour of assessee.
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