|
Advanced Search Options
Central Excise - Case Laws
Showing 181 to 200 of 253 Records
-
2016 (7) TMI 498 - CESTAT MUMBAI
Claim of refund of unutilized cenvat credit - clearances made to International competitive bidding (ICB) - Adjudicating authority has rejected the said refund claim on the ground that the assessee respondent has filed a single claim for the period January 2014 to December 2014, while notification number 27/2012 stipulates for filing of quarterly refund claims under Rule 5 of Cenvat Credit Rules; also rejected the refund claim on the ground that shipping bill which is a document indicated as per rule for evidencing export, duly certified was also not produced.
Held that:- the show cause notice did not require the respondent assessee to show cause for rejection of the claim on the ground that clearances made to International competitive bidding cannot be considered as exports. In the absence of such allegation, revenue cannot take this as a ground for setting aside the impugned order.
Notification number 27/2012 contemplates for filing of refund claims of unutilised Cenvat credit quarterly, but it does not bar an assessee from filing refund claim for the entire period which may be more than a quarter. In the absence of any explicit bar, refund claims, if otherwise eligible, cannot be rejected on the ground that they are not filed quarterly.
Refund allowed - Decided in favor of assessee.
-
2016 (7) TMI 497 - CESTAT CHENNAI
Cenvat Credit on capital goods - capital equipments were installed for the purpose of generation of electricity by heat energy recovery which is exhausted by the three natural gas fired generator sets already working. - The case of the Revenue is that these capital goods are becoming part of the existing generator sets which belong to another legal entity (M/s. OPG Energy Pvt. Ltd.) and hence credit on such capital goods is not available to the appellant.
Held that:- the department has not disputed the duty-paid nature of the capital goods, discharge of duty by the appellant, usage of capital goods for generation of electricity and consumption of such electricity by the appellant in the manufacture of dutiable final products. - Credit cannot be denied - Decided in favor of assessee.
-
2016 (7) TMI 496 - GUJARAT HIGH COURT
Delay in filing an appeal before Commissioner (Appeals) - Determination of period of limitation - Held that:- the petitioner had challenged the order-in-original dated 29.08.2013 which came to be corrected and amended by virtue of corrigendum issued by the competent authority on 29.11.2013. It was only then that the period of limitation would start to run against the petitioner.
The conclusion of the Commissioner that the petitioner's appeal was beyond such total period of 90 days is not borne out from the record. Counting from the date of corrigendum 29.11.2013, the petitioner's appeal which was filed on 17.02.2014 was well within the period of 180 days and, in other words, beyond the statutory period of 60 days for filing appeal. Petitioner's appeal was belated barely about 19 days. The explanation rendered by the petitioner was perfectly valid and delay ought to have been condoned.
In the result, the petition is allowed. Impugned order dated 18.11.2015 passed by the Tribunal as well as dated 20.06.2014 passed by the Commissioner are set aside. The petitioner's appeal is restored to the Commissioner (Appeals) after condoning delay. - Decided in favor of petitioner.
-
2016 (7) TMI 495 - CESTAT NEW DELHI
Clandestine removal of manufactured M.S. Ingots - confiscation - redemption fine and penalty - Held that:- While there is a basis to proceed with further investigation to establish clandestine manufacture and clearance, the case is not complete as no element of evidence has been unearthened which can even indirectly indicate clandestine manufacture and clearance thereafter without payment of duty on M.S. Channels. Even the quantum of un-accounted clearance of M.S. Channels is arrived at by derivative calculation based on comparable figures for a particular month.
Ld. Commissioner (Appeals) observed that the admitted facts need not be proved. Here, it has to be noted that there is no admission by the appellants regarding procurement, manufacture or clearance of any excisable items. Applying an admission of third party to demand duty from the appellant without any corroboration of manufacture and clearance will not be legally justifiable. In fact, the impugned orders admit that the Department was not in a position to investigate the case at the buyers end of the appellants as details were not disclosed by the appellants. Since the appellants are denying any such clearance, it is for the Department to adduce evidence of clandestine manufacture and clearance.
The evidences alleged are not sufficient enough to sustain the case of the Department and accordingly, the impugned orders are not sustainable. - Demand set aside - Decided in favor of appellant.
-
2016 (7) TMI 494 - CESTAT NEW DELHI
Valuation - sale of manufactured manmade fiber and yarn through depot - inclusion of freight - Held that:- The Original Authority is fixated at adding the cost of transportation from factory to depot at rates equivalent to the equalized freight charged by the appellant from depot to the customer. He has disregarded the submission made by the appellant before him that the cost of transportation from factory to depot already stands included in the price. Without undertaking verification of the claim and bringing any other material on record to disapprove the claim of the Assessee, he has gone ahead and loaded the value without any basis. In the remand proceedings, this Tribunal specifically directed him to exclude the cost of transportation from the depot to the customer out of the amounts already confirmed in the original proceedings. Instead of complying with the directions, he has gone ahead and confirmed the same amount of duty considering the same as the cost of transportation from factory to depot.
Original Authority has travelled beyond the terms of remand and such an order passed by him cannot be upheld. - Demand set aside - Decided in favor of appellant.
-
2016 (7) TMI 493 - CESTAT NEW DELHI
Excise duty liability - char /dolochar emerging in the manufacturing process of sponge iron as a residue / refuse - Held that:- We find that the issue is no more res integra Union of India vs. Ahmedabad Electricity Company Ltd. [ 2003 (10) TMI 47 - SUPREME COURT OF INDIA] has set aside the demand on char /dolochar. - Decided in favour of assessee.
-
2016 (7) TMI 492 - CESTAT AHMEDABAD
Rectification of mistake (ROM) - issue involved is a refund matter - Revenue argued that there is no mistake apparent on the subject order of the Tribunal dated 30.12.2015. He submits that the applicant is trying to reopen the issue to have a rehearing of the matter which will amount to review of the order of the Tribunal, which is not permitted by the law.
Held that:- the issue has a chequered history and has passed through many rounds of litigation. We find that the applicants are seeking re-appreciation of the evidences and findings of the Tribunal on facts and law, which would amount to review of its own order which is not permitted by law. - the ROM application cannot be sustained. - Decided against the appellant.
-
2016 (7) TMI 491 - CESTAT HYDERABAD
Extended period of limitation invoked - Disallowance of credit on service tax paid on input services for the period February, 2008 to June 2009 - main contention raised by appellant/Revenue is that the Commissioner(Appeals) has no powers to accept or consider additional evidence and delete the disallowance - Held that:- The evidence produced by the respondents before the Commissioner(Appeals) is nothing but originals of the invoices/bills of which photocopies were already produced before original authority. The Revenue has no case that there was discrepancy in the photocopies or originals produced. So also there is no dispute that service tax was paid and accounted for as per the invoices. Rule 5 of the Central Excise Rules 2001 referred by appellant/Revenue deals with production of additional evidence before Commissioner(Appeals). Sub-clause (4) of the said rule states that nothing contained in this rule shall affect the power of Commissioner(Appeals) to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal . Needless to say, this rule gives necessary powers to accept and consider additional evidence. The Commissioner(Appeals) being a fact finding authority, is competent to peruse, verify and appreciate evidence adduced by parties. Therefore, no merits in the contention raised by Revenue. - Decided against revenue
-
2016 (7) TMI 490 - CESTAT HYDERABAD
Denial of credit on welding electrodes used for repair and maintenance - appellants are manufacturers of cement and cement clinker and are availing credit on inputs and capital goods - Held that:- Relying upon the judgments laid in Bhushan Steel Ltd (2015 (10) TMI 1370 - CESTAT NEW DELHI) and Kisan Cooperative Sugar Factory Ltd (2013 (8) TMI 98 - CESTAT NEW DELHI ), hold that credit is admissible. Welding electrodes used for repair and maintenance of plant and machinery eligible for Cenvat Credit - Decided in favour of assessee
-
2016 (7) TMI 489 - CESTAT NEW DELHI
Classification - manufacture of calendar/panchang - whether or not the impugned publications are more appropriately categorized as calendars (CETH 4910) or as panchang or almanac (CETH 4901) - Held that:- We find that calendars are specifically covered by name under C.E.T.H. 4910. We have perused the 'Panchang' published by the appellants. The ld. Counsel claimed that it contained almost 99 types of information covering a wide range of subjects. He submitted a list of such information. While we take note that the distinction between a calendar and almanac is not categorical and perfect, certain salient features and the actual nature of the publication will indicate the basic use. Firstly, we find that the impugned publication is named and marketed as Panchang. Less than 50% of the page space displays the date sequence of the calendar month. The page contains many details of auspicious times, grihasthithi Rashiphal other information of planetary position etc.
We find on perusal, that the impugned items marketed as 'Panchang' is not a simple calendar but essentially a publication containing large number of various information not incidental only to sequence of dates alone. The predominant features are details of Tithi, Nakshatra, Vara Yoga and Karana which are linked to the dates in a calendar month. After careful evaluation of the facts and nature of impugned publication we find that the impugned items can not be categorized as calendars and classified under C.E.T.H. 4910. The findings of the lower authorities are not sustainable. As such, the appeals are allowed in favour of assessee
-
2016 (7) TMI 488 - CESTAT NEW DELHI
Recovery of wrongly availed cenvat credit on the goods transport agency service utilized for outward transportation of goods which is beyond the place of removal i.e. factory gate - Held that:- As find from available records that the cenvat credit taken irregularly has not been utilized for payment of Central Excise Duty on removal of the finished goods. Thus, there is no loss of Revenue, and as such, interest demand for late reversal of cenvat credit is not proper. In this context, the Honble Karnataka High Court in an identical set of facts in the case of Bill Forge (2011 (4) TMI 969 - KARNATAKA HIGH COURT ) have held that the assessee have not taken or utilized the credit but only availed wrong credit in their account book and on pointing out the mistake, since the assessee reversed the entry, it cannot be said that any benefit of such wrong entry was taken, and thus, the interest is not payable.
Interest cannot be demanded from the appellant, since the credit taken has not been utilized for payment of Central Excise duty.
-
2016 (7) TMI 487 - CESTAT ALLAHABAD
Disallowance of MODVAT credit - carbon copy of the bill of entry produced - Held that:- No justification for the Commissioner (Appeals) to have come to a conclusion that the document against which the credit was taken was a carbon copy. It would appear that the first appellate authority refers to copy of the bill of entry in which the entries are found to have been imprinted using carbon interleaves that was the practice in the customs during the period referred to. The original and duplicate copies of the bill of entry are retained in the Customs House for its own closure transactions and the importer is in custody of the triplicate and quadruplicate copies. Since these were, by nature, carbon imprints and the original remains with the Customs House, there is no reason to deny the credit taken on a triplicate copy of the bill of entry when the connected provision in the MODVAT rules refers merely to ‘bill of entry’. Thus, disallowance is without any basis and is set aside.
Appellant has paid the amount of duties held as liable on account of erection, commissioning and installation charges. These were paid before issuance of the show cause notice. Accordingly, we find no reason for invoking the penal provisions and imposition thereof. We therefore, modify the impugned order to the extent of dropping the penalties and setting aside the disallowance of MODVAT credit. - Decided in favour of assessee
-
2016 (7) TMI 470 - CESTAT CHANDIGARH
Valuation of - deduction of discount offered from the depot / from the stockiests and sub stockiests - claim was rejected on the ground that the respondents failed to supplied the true and correct figures of TOD passed on to their buyers in respect of clearances effected from their factory. - Commissioner (Appeals) allowed the claim - Held that:- Since the Commissioner (Appeals) has given specific finding to the effect that he has found respondents have actually passed on the benefit of turnover discount to the eligible stockiest and sub-stockiests by raising credit notes. We find that there is no evidence whatsoever in the grounds of appeals to substantiate the challenge made to specific averments made by the Commissioner (Appeals). - Decided against the revenue.
-
2016 (7) TMI 469 - CESTAT CHANDIGARH
Refund of cenvat credit of accumulated on account of duty of AED (T & TA) paid on inputs - since there was no AED (T & TA) on the finished goods the said credit got accumulated - Rule 5 of the Cenvat Credit Rules - Held that:- As per rule 3 of the said rules, CENVAT Credit of AED (T&TA) can be taken even though the manner of utilization of such credit is restricted in terms of sub rule (7). Therefore, such unutilized accumulated credit of AED (T&TA) can be claimed as refund under rule 5 of the CENVAT Credit Rules, 2004 on export of goods. - Refund allowed.
-
2016 (7) TMI 468 - CESTAT CHANDIGARH
Entitlement to avail cenvat credit on input services - nexus with manufacturing activity - Held that:- Warehouse has been used by the appellant for storage of raw material and finished goods which is a registered place for removal goods. In the circumstances, storage of goods is an integral part of manufacturing, therefore appellant is entitled to availe cenvat credit on these services.
Project for Modification/ Modernisation Services, find that these services are none other than a renovation of the factory premises which is covered by the Rule 2(I) of Cenvat Credit Rules, 2004. Therefore, hold that the appellant is entitled to avail cenvat credit for project for Modification/Modernisation Services.
Horticulture services,find that the appellant is compulsory required to maintain a garden in their factory to pollution control norms. Therefore, the horticulture services are directly related to the manufacturing activity by the appellant as without maintaining the garden, the appellant cannot run their factory. Therefore, hold that the appellant is entitled to avail cenvat credit for horticulture services.
Courier service has been used by the appellant for various correspondences made with suppliers of the goods, without these correspondences, the appellant cannot do their business. Therefore, the courier service is an integral part of their activity, therefore, the appellant is entitled to avail cenvat credit for Courier service.
Transportation service has been used by the appellant for marketing /sales, which is directly related to the manufacturing activity. Therefore, appellant is entitled to avail cenvat credit on Transportation service. - Decided in favour of assessee
-
2016 (7) TMI 435 - PUNJAB & HARYANA HIGH COURT
Bail application - Prosecution proceedings - offence punishable under Section 9 and 9AA of Central Excise Act, 1944 - Petitioner was arrested u/s 13 - evasion of customs duty / CVD on import - violation of provisions of conditional exemption notifications.
Held that:- the petitioner was arrested by the Inspector and he was produced before the Learned CJM by an Inspector, namely, Mr. Dhiraj Surangi. The Central Excise Officers have power to arrest under Section 13 of the 1944 Act and after arrest, Department is bound to follow procedure prescribed under the said Act. Power to arrest is independent from disposal of person arrested.
As per the relevant Notification No. 9/99-CE (N.T) dated 10.02.1999/11.05.1999 issued under the 1944 Act concededly governing the issue, only Superintendent can forward arrested person to custody of Magistrate. - Therefore the petitioner not being presented before the learned Magistrate by an authorized officer, at least a strong case for grant of bail would be made out.
Learned counsel for the respondent-Department has argued that it is an economic offence and no leniency should be shown. The counsel has ignored the fact that matter is pending for last more 5 years and nothing new had occurred in Jan’2016 which prompted the department to take harsh action of arrest. Further, it is an economic offence where separate Assessment/Adjudication proceedings are going on. It is not a case of mass level cheating, as involved in the cited and relied case, where except criminal trial no effective remedy was available. In the present case, if the department succeeds in adjudication, the department shall have all rights to recover the dues. So, the contention of Department is repelled.
Bail granted on furnishing of bail bond of ₹ 5 lacs with two sureties of equal amount.
-
2016 (7) TMI 434 - GOVERNMENT OF INDIA
Claim of rebate/ refund - input stage rebate - export of goods - The adjudicating authority rejected all the rebate claims of the respondent holding that they failed to get the input output ratio approved in respect of Menthol Crystals as required under Notification No. 21/2004-CE(NT) dated 06109.2004 and rebate claim were not admissible to them as they had failed to fulfill the conditions of Notification ibid. - Commissioner (Appeals) allowed the rebate.
Held that:- it is clear that the respondent was not given any permission for manufacture and export of menthol crystals under claim for import duty rebate as they has never applied for fixation of input output ratio in respect of Menthol Crystals. The input output ratio for menthol crystals was applied for vide declaration dated 28.06.2010 and thereafter approved vide letter dated 31.01.2011.
Government finds as untenable the presumption of Commissioner (Appeals) that as same ratio has been fixed first for menthol and then for menthol crystals, the norms for crystals can be said to have been fixed at the same time as that for menthol. Menthol and menthol crystals are two distinct products classifiable under distinct tariff headings viz 2906 and 3003 respectively as held in the impugned Order-in-Original. It is an uncontested fact that both items not only fall under different headings but the process of manufacture is also different as menthol is in liquid form and menthol crystals are in crystal form. The respondent was therefore, required to file different declaration and get separate approvals for the norms for each product sought to be exported for each product sought to be exported in terms of Notification No. 21/2004-CE(NT) dated 06.09.2004 read with para 2 of part V of Chapter 8 to CBEC Supplementary Instructions Manual.
Para 2 of the said Notification clearly states that the correctness of the ratio of the input output ratio shall be verified before the commencement of the export of the said goods but in the present case, the respondent exported the goods before the verification of input output ratio as well as fixation of the input output norms. Thus they had failed to satisfy the condition of the Notification ibid. - Claim of rebate denied - Decided against the assessee and in favor of revenue.
-
2016 (7) TMI 433 - GOVERNMENT OF INDIA
Claim of rebate/refund - export of goods from DTA unit to SEZ units - initially applicant cleared excisable goods without payment of duty under UT-I Bond to the SEZ Unit - However, it was found that the applicants have subsequently paid the duty on the said clearances through CENVAT account by making consolidated debit entry at the end of the respective months of clearances and claimed rebate of duty paid on such clearances. - Department rejected the claim on the ground that the applicants have not fulfilled the conditions and limitations prescribed under Notification No.19/2004-CE(N.T) dated 06.09.2004 issued under Rule 18 in respect of clearances to SEZ under the said ARE -Is as the excisable goods were originally cleared without payment of duty under Bond.
Held that:- As such there is no force in the plea of the applicant that the lapse should be considered as a procedural one which is condonable in nature. As such, as the applicant did not follow the requirements of the Notification No.19/2004-CE(NT), the rebate claims are rightly held inadmissible.
The applicant has also alternatively requested for re credit of cenvat credit. In this regard, Government notes that re credit is allowed in the cases where the exporter was not required to pay duty at the time of export, however, he pays the same. Such amount paid by the exporter in his own volition cannot be retained by the Government and it is required to be paid back in the form it has been paid. In this case, the applicant was not required to pay duty and hence, the duty was rightly not paid. The duty was paid subsequently at the end of the month on consolidated basis and such duty cannot be treated at par with duty not payable at the time of export and as such, does not qualify for availing of re credit. As such, applicant's request for allowing re credit is not tenable.
Application rejected - Decided against the applicant.
-
2016 (7) TMI 432 - GOVERNMENT OF INDIA
Claim of rebate/ refund - export of goods on payment of duty through third party - Certain amount of rebate claim was rejected on the ground that the relevant export documents are not matching as far as declaration of name of exporter is concerned which is a contravention of Rule 18 of Central Excise Rules, 2002 read with notification No. 19/2004-CE(NT) dated 06.09.2004. - the name of exporter is declared/mentioned as M/S. Govardhan Poly Plast Pvt. Ltd. on each of the ARE-Is and its corresponding shipping bills, mate receipts and commercial invoices, whereas, corresponding Bills of lading indicate the name of M/S. Ispa Exim Pvt. Ltd., as exporter/shipper of the goods. As such, there is mismatch in the name of exporter.
Held that:- There is no finding of lower authorities that the duty paid goods have not been exported. In terms of Board's Circular 120/95-cus dated 23.11.1995 and 30.12.2005 dated 12.07.2005 as referred to in impugned Order-in-Original the BRC, GR declaration, export order and invoice should also be to the name of the third party exporter. As such, the merits of the rebate claims need to be re-examined after taking into consideration the documents referred to above. - Order set aside - Matter remanded back for fresh decision.
-
2016 (7) TMI 431 - GOVERNMENT OF INDIA
Claim of rebate/refund - Procedure of A.R.E.-1 followed instead of A.R.E-2 as contended by the department - exported the goods on payment of duty - Rule 18 of Central Excise Rule, 2002 read with Notification No. 19/2004-CE(NT) dated 06.0912004 - Department found that, goods were exported by availing benefit under Notification No. 21/2004-CE(NT) dated 06.09.2004 and Notification No, 43/2001-CE(NT) dated 26.06.2001 as certified by them at Sr. No. 3(b) & (c) of the ARE-I. - According to the department, Under the Notification No. 21/2004-CE(NT) dated 06.09.2004, it is mandatory to clear the goods for export in form ARE-2 and file the rebate claims with the jurisdictional Assistant / Deputy Commissioner. It is also, mandatory to clear goods for export under Bond / Letter of undertaking under Notification Nor. 43/2001-CE(NT) dated 26.062001.
Held that:- There is no independent evidences on record to show that the applicant have exported the goods without payment of duty under ARE-2 or under Bond. Under such circumstances, Government finds force in contention of applicant that they have by mistake ticked in ARE-I form declaration and they have not availed benefit of Notification 21/04-CE(NT) dated 0609.2004 and Notification 43/01-CE(NT) dated 26.062001. In this case, there is no dispute regarding export of duty paid goods. Simply ticking a wrong declaration in ARE-I form cannot be a basis for rejecting the substantial benefit of rebate claim. Under such circumstances, the rebate claims cannot be rejected for procedural lapses of wrong ticking. In catena of judgments, the Government of India has held that benefit of rebate claim cannot be denied for minor procedural infraction when substantial compliance of provisions of notification and rules is made by claimant.
However since it is a matter of fact which requires verification in view of rival claims, therefore, the case is remanded back to the original authority to verify the claim of the applicant that they have not availed benefit of Notification 21/04-CE(NT) dated 06.092004 and Notification 43/01-CE (NT) dated 2606.2001 and thereafter subject to the satisfaction of the - Decided partly in favor of assessee by way of remand.
....
|
