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Central Excise - Case Laws
Showing 221 to 240 of 253 Records
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2016 (7) TMI 295 - CESTAT MUMBAI
Demand of duty of manufacturing of go-kart and parts thereof - classifiable under chapter sub-heading number 8703.90 or not - respondent / manufacturer contended that the product would be under chapter sub-heading number 95.08 as Fairground amusements - Held that:- It is undisputed that the go-kart manufactured by the respondent assessee is used for racing in go-kart racing - The specific notes to the heading therefore do not justify its classification under Heading 95.08. Therefore, as between the alternative classifications, once Heading 95.08 is excluded the other one 87.03, will apply - Decision of larger bench in the case of Leisureland Pvt. Ltd [1994 (1) TMI 152 - CEGAT, NEW DELHI] followed.
Demand of duty confirmed - However, since the issue is of interpretation and classification of the products, penalties imposed on the appellant waived - Decided in favor of revenue.
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2016 (7) TMI 294 - CESTAT BANGALORE
Cenvat Credit - input services - upto the place of removal - service tax paid on transportation and freight charges in respect of transportation of finished goods from the factory up to the customers' premises as well as to the port in case of export of final products. - The contention of the appellant is that if opportunity is given to him he can produce the documents which will help the learned Commissioner (Appeals) to arrive at the correct finding.
Held that:- The order set aside - matter remanded back to Commissioner (Appeals) with a direction to decide the appeal afresh after considering the evidence furnished by the appellant company. It is made clear that before deciding the case learned Commissioner (Appeals) is required to afford an opportunity of hearing to the appellant who will be free to submit all the documentary evidence in their possession in support of their case. - Decided in favor of assessee.
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2016 (7) TMI 293 - CESTAT BANGALORE
Restoration of appeal - appeal was dismissed for non-compliance of pre-deposit order - appellant wants to start manufacturing plywoods in full scale but the respondent would not allow them as duty and penalty are due to them. - it also submitted that appellant has a very good case on merits and there is every chance of succeeding in the appeal. - fter considering the submissions of both the parties and after going through the judgments cited above and also keeping in view the peculiar facts and circumstances of the present case, we are of the considered opinion that in the interest of justice, this application needs to be allowed and we allow the application subject to the payment of cost of ₹ 25,000/- to the respondent and further we direct the appellant to comply with the direction of predeposit of ₹ 30,00,000/-within a period of four weeks from the date of receipt of certified copy of this order. - Appeal to be restored subject to above conditions.
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2016 (7) TMI 292 - CESTAT CHANDIGARH
Clandestine removal of goods - demand of duty on the basis of turnover of their dealer - manufacturing or automobile parts - Commissioner (Appeals) oberved that clandestine removal of goods is on the basis of assumption and presumption, therefore, the demand of duty are not sustainable - Held that:- As it is clear from the facts of the case itself that M/s SVTC is not exclusively dealer of the appellant and exclusively selling goods manufactured by the respondent M/s JYL but purchasing of goods from local market and selling thereof and therefore, it cannot be said that all clearances made by M/s SVTC are of the goods manufactured by M/s JYL. There is no other evidence produced by Revenue to allege that M/s JYL is engaged in the activity of clearance of clandestine removal of goods by way of procuring excess input as consumption of electricity, transportation of goods etc. In the absence of any concrete evidence against M/s JYL, the duty cannot be demanded merely on the basis of turnover of their dealer.
No demand can sustain - Decided against the revenue.
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2016 (7) TMI 291 - CESTAT CHANDIGARH
Clandestine removal of goods - manufacture of zine ingots - It is the allegation that the entries made in the log sheet pertain to the manufacturing took place by the appellant and the same has not been entered in the RG-1 register. The appellant has explained that after manufacturing the goods, the goods are being tested and test reports are placed on records which show that after obtaining the test reports, the appellant is making the entries in the RG-1 register as the goods are ready for clearance.
Held that:- The Revenue has not controverted this fact. In that circumstance, without any positive evidence to show that the appellants have cleared the goods without payment of duty, the allegation is merely on the basis of assumption and presumption. As no positive evidence has been brought by the revenue to support its allegation that the goods cleared clandestinely without payment of duty is not sustainable. - Demand and penalty set aside - Decided in favor of assessee.
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2016 (7) TMI 290 - CESTAT BANGALORE
Claim of exemption of Notification No.108/95-CE dated 28.8.1995 as amended - goods supplied to the projects funded/financed by the United Nations or an international organisation and approved by Government of India. - Revenue’s main argument is that in the case of 196 Hydraulic Excavators, new condition that the goods required for the projects are not to be withdrawn after the execution of the project (as made applicable by the amendment Notification No.13/2008-CE dated 1.3.2008 to the original Notification No.108/95-CE has not been fulfilled.
Held that:- Considering the findings that there has been no suppression on the part of the appellants and in view of the decisions of the judicial fora quoted above, we hold that amendment to the original Notification No.108/95-CE dated 28.8.1995 made by Notification No.13/2008-CE dated 1.3.2008 would have prospective operation and the demand against the appellants can be sustained only for one year period which is within the period of limitation and the penalty imposed by the impugned order deserves to be set aside. - Decided partly in favor of appellant.
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2016 (7) TMI 289 - CESTAT CHANDIGARH
Cenvat Credit - Demand of reversal of credit on removal of waste - appellant was removing wastes of their cenvatable invoices like laminates, shipper carton, duplex, perform (water bottles) hydrogenated vegetable fats and wastes of their noodles without recording the same in the statutory records and on the strength of an invoice book and without discharging duty liability thereon. - Held that:- appellant is not required to reverse the credit taken on the inputs contained in waste and scrap during the impugned period - Decided in favor of assessee.
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2016 (7) TMI 234 - CALCUTTA HIGH COURT
Waiver of pre-deposit - Demand of duty - clandestine removal of goods - Maintainability of writ petition - alternative appellant remedy - Despite there being an appellate remedy under Section 35B of the Act, the petitioners claim that the appeal would not be efficacious in view of the statutory pre-deposit that is required to be made and that, in any event, the challenge is primarily on the ground of the breach of the principles of natural justice. - Appellant had misrepresented himself before its customers as manufacturer.
Held that:- The object of the present exercise is not to dissect the order or tear it to shreds. The Commissioner has otherwise exercised his jurisdiction with consummate aplomb; except that he may have slipped on prejudice. It is only to point out that when a citizen is charged with having done something wrong and some material is provided by such citizen to disabuse the authority of its impression, such evidence has first to be discredited upon a cogent discussion thereon before the original suspicion of wrongdoing is exalted to a final finding. It is such exercise which has been missed in the impugned order. It is for such reason that the decision-making process cannot stand the scrutiny in this extraordinary jurisdiction of overall superintendence.
That does not mean that these petitioners are paragons of virtue. It is evident from the material obtained by the department from respectable organisations, including government companies and private sector undertakings, that the petitioners held themselves out of as manufacturers of the electrical and transmission goods that the petitioners sold to such purchasers.
It was incumbent on the Commissioner to have otherwise come to a cogent finding that the petitioners could be regarded as manufacturers within the meaning of the said Act and found liable to pay the duty. That the petitioners may have misrepresented to their purchasers as to their status may not have been the only relevant consideration for the Commissioner.
However, to the extent it is evident from even the submission of the petitioners as recorded in the order impugned that the petitioners may have represented themselves as manufacturers to their purchasers, it is necessary that the petitioners be put on terms and required to make a deposit for the matter to be considered afresh by the concerned Commissioner.
Petitioner directed to deposit a sum of ₹ 50 lakh (against the demand of ₹ 11 crore) with the department within four weeks from date. - Decided partly in favor of petitioner.
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2016 (7) TMI 233 - GOVERNMENT OF INDIA
Demand of duty on export of goods without payment of duty - export of Linear Alkyl Benzene (LAB) under UT-I for export under the provision of Rule 19 of Central Excise Rules, 2002 - it was noticed that 7.921 M.T. of LAB were short shipped/not exported by the applicants. - Condonation of delay in filing revision application due the reason the applicant was pursing the matter with the wrong forum - Held that:- As such after excluding time elapse before Tribunal, the applicant filed the Revisional Application in 49 days. As such the Applicant has been filed within the stipulated period. Government now proceeds to examine the case on merits.
Commissioner (Appeals) has held the applicant to be ineligible for the benefit of Circular No. 292/8/97-CX dated 24.01.1997 holding the said Circular to be applicable to NGL only. On perusal of the above Circular, it is crystal clear that the benefit is only admissible to the Natural Gasoline Liquid (NGL) and not for any other commodity. The Board after considering the nature of loss being occurred specifically in NGL has prescribed the percentage for the particular item only. Admittedly, the goods manufactured and cleared by the assessee is not NGL and as such they are not eligible for the benefit of the above circular, as rightly held by the Commissioner (Appeals). - Demand confirmed - Decided against the assessee.
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2016 (7) TMI 232 - GOVERNMENT OF INDIA
Rebate / refund claim on export of goods - non-realization of foreign exchange - exporter has not submitted (BRCs) in respect of export clearances - Commissioner (Appeals) observed that submission of BRCs have not been envisaged as precondition for grant of rebate under Notification No. 19/2004-CE(NT) dated 06.09.2004 read with Rule 18 of the Central Excise Rules, 2002.
Held that:- It is a fact on record that the stipulated period of one year for the realization of export proceeds had been exceeded much before issue of the show cause notices. The question of submission of BRC would not arise when rebate is filed and sanctioned within one year of the date of export. However, in a scenario as in the present case were pending the sanction of rebate, the Bank Remittance Certificate had become due, it cannot be held that rebate ought to be sanctioned as it is not a prescribed document at the time of filing of rebate. It is also a fact on record that till date the respondent has failed to submit the BRCs to the department. Though it is claimed by them before the Revisionary Authority that remittance has been received by them partially, no evidence has been produced to that effect.
It is a universally known principle that one of the main reasons any export incentive including rebate is allowed is to encourage export- generated foreign exchange earnings for the country. From a harmonious reading of Rule 18 of Central Excise Rules, Notification No. 19/2004-CE(NT) dated 06.09.2004, relevant provisions of Foreign Exchange Management Act, Foreign Trade Policy and RBI guidelines as applicable, it can be concluded that exports are entitled for rebate benefit only if export realization is received, which has not happened in the present case.
Rebate / refund claim cannot be granted - Decided in favor of revenue.
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2016 (7) TMI 231 - GOVERNMENT OF INDIA
Loss of goods during manufacturing - Procedure of Remission of duty not followed - Rule 21 of Central Excise Rules, 2002 - Cenvat Credit on inputs - On scrutiny of ER-I returns for the month of April 2009 to March2010, it has been observed that the respondent has shown some quantity of Denatured Rectified Spirit as process loss after production of the finished goods. The respondent has not mentioned any reason for this process loss in their ER-I return.
Held that:- Government observes that the respondent has suo moto claimed remission without fulfilling the conditions laid down under Rule 21 of Central Excise Rules, 2002 and obtaining permission from the Commissioner. - in the case of Commissioner of Customs & Central Excise Vs M/S U.P. State Sugar Corporation Ltd, the Hon'ble High Court of judicature at Allahabad [2015 (5) TMI 944 - ALLAHABAD HIGH COURT] has held that, "if in the facts of the case, the assesse claims remission from excise duty of goods said to have been lost in natural course, within the permissible limit, as per the circulars, he has to follow the procedure prescribed under Ru/e 21 of the Rules. Only after an order is made granting remission in respect of the goods so lost due to natural circumstances, he could be exempted from payment of excise duty"
Remission of duty on storage losses cannot be claimed by the respondent even when no remission application has been filed by them and it is established to the satisfaction of the competent authority that such loss is due to circumstances referred to in Rule 21 ibid. - Demand confirmed - Decided in favor of revenue.
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2016 (7) TMI 230 - GOVERNMENT OF INDIA
Rebate of duty of input stage on export of goods - Rule 18 - excisable goods were cleared for export by them in respect of ARE-2, without obtaining prior permission of the Assistant Commissioner of Central Excise to the effect in terms of Notification No. 21/2004CE(NT) dated 06.092004 - Held that:- The applicant cannot claim the input rebate as a matter of right when he has failed to follow the provisions of Notification No. 21/2004-CE(NT) without giving explanation for any valid reasons for not filing the declaration. In this case applicant has not admitted the occurrence of any unintentional procedural lapse and rather termed the demand of such declaration as illegal and bad in law.
The condition is of such a nature that the declaration has to be filed and verification of the input output ratio is to be carried out prior to export of goods because once the goods are exported no such verification could be possible to ascertain the correctness.
Government, therefore, holds that non fulfilling the statutory conditions laid down under the impugned Notification and not following the basic procedure of export as discussed above, cannot be treated as just a minor or technical procedural lapse for the purpose of availing the benefit of rebate on the impugned goods. As such there is no force in the plea of the applicant that this lapse should be considered as a procedural lapse of technical nature which is condonable in terms of case laws cited by applicant. - Rebate claim denied - Decided against the assessee.
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2016 (7) TMI 229 - GOVERNMENT OF INDIA
Rebate claim of duty paid on exported goods under Rule 18 of the Central Excise Rules, 2002 - applicant failed to follow procedure of self sealing as provided in para 3(a)(xi) of the Notification No. 19/2004-CE(NT) dated 06.09.2004 and failed to submit triplicate and quadruplicate ARE-I to range Superintendent vide Order-in-Original No.22/10-11/ACC Rebate/Raigad dated 07.0412010.
Held that:- if goods are cleared from a factory for export under claim for rebate it has to be under the cover of an ARE-I duly certified for purpose of identity of goods either by the Superintendent/lnspector or the person from the factory as the case may be. This duly verified/certified ARE-I is then certified by the Customs after due verification/examination that goods have been exported. Government notes that the verification on ARE-I prior to clearance from factory and thereafter by the Customs at the time of export helps to establish that the goods which were cleared from the factory are the same which are exported and without having followed the procedure as described in the Notification it cannot be established that goods which were cleared from factory were the ones actually exported or goods exported cannot be correlated with goods cleared from factory.
Government notes that it is an undisputed fact on record that in the present case the goods have been cleared by the applicant from the factory of the manufacturer on invoices only between 19.04.2007 to 23.04.2007 and dispatched to JNPT Container Terminal for stuffing. They had prepared the ARE-I only on 24.04.2007 subsequent to clearance from the factory after the complete consignment was received at JNPT.
Not following the basic procedure of export cannot be treated as a minor procedural lapse for the purpose of availing benefit of rebate of duty on impugned export goods. As such, there is no merit in the plea of the applicant that the lapse on their part be considered as procedural laps of a technical nature which may be condoned. - Rebate claim denied. - Decided against the assessee.
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2016 (7) TMI 228 - GOVERNMENT OF INDIA
Recovery of Rebate/ refund granted earlier - input stage rebate under Rule 18 had been granted to the respondent based on input output declaration which was subsequently found to be incorrect - respondent had mis-declared that the waste obtained would not be reprocessed/recycled further to obtain menthol which led to wrong fixation of the input output norm 1.250 kg DMO 1.000 kg menthol by the Division Office which effect was required to be fixed as 1:1 as the respondent was recycling/reprocessing the mother liquor and other wastes to obtain further menthol.
Held that:- the Commissioner (Appeals) has erred in holding that revenue has also not appealed against the fixation of norms dated 19.08.2009. He has overlooked the fact that the respondent suppressed the fact of recycling/reprocessing of the mother liquor and other wastes to obtain further menthol from the department since 2008 and mis-declared which led to wrong fixation of the input output norm which were subsequently correctly re-fixed as 1:1 to which the respondent had agreed vide letter dated 17.02.2011. Thereafter, the rebate sanctioned on the basis of the earlier fixation of norms has been appealed against. Thus the order of appellate authority is not proper as it did not take into consideration the mis-representation of facts by the respondent to avail excess monetary benefit and subsequent re-fixing of input output norms.
Commissioner (Appeals) has passed the impugned Order-in-Appeal without taking into consideration the admission statement of Shri Ram Ashish Yadav, Deputy Manager (Production) who was in charge of production of the unit and Shri Vinod Rana, Deputy Manager (Commercial) under whose supervision record of production and clearance was maintained, dated 09.02.2011 recorded under Section 14 of the Central Excise Act, 1944 as these were not placed before him. He has also ignored the fact that the respondent vide letter dated 17.02.2011 had voluntarily agreed to re-fixing of norms.
Matter remanded back to Commissioner (Appeals) for fresh consideration - Decided in favor of revenue.
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2016 (7) TMI 153 - CESTAT CHANDIGARH
Cenvat Credit - availing credit without receipt of goods - It was also alleged in the show cause notice that the appellant had diverted the said inputs with the help of transporters and utilized the cenvat credit - Held that:- Admittedly non relied upon documents have supplied after final hearing of the case. In the circumstances, the impugned order has been passed in gross violation of principles of natural justice. - Further, the adjudicating authority has not given an opportunity of cross examination of witness.
Order set aside - matter remanded back to the adjudicating authority - The adjudicating authority shall be at liberty if so desire to re-adjudicate the matter after following the procedure laid down under section 9D of the Act as discussed above, and following the principles of natural justice. - Decided in favor of assessee.
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2016 (7) TMI 152 - CESTAT MUMBAI
Classification of FOIL - PVC foils versus PVC films - heading 3920.11 and 3920.12 read with chapter notes - rate of duty / benefit of exemption - respondent / assessee argued that the films is generic and foils is species thereof, he argued that all foils would be covered in the description of films - Revenue asserted that the impugned product which was classified and sold by the assessee as foils is totally different from films thereby the exemption under Sr. No. 35 of Table of Notification No. 53/88 and under Sr. No. 30 of the table of the Notification No. 14/92 is not available.
Held that:- The entire argument of the revenue is based on the fact that for some period the product has been described as Foil in the invoices. On the basis of this fact, it was argued that in commercial parlance the product is known as foil. It is not a correct conclusion reached on any reasonable basis. It is noticed that the same invoice also describes the product as PVC Films. If revenue wanted to distinguish Film from Foil they have to first describe the attributes of both Film and Foils. It is undisputed that the product in question answers to the definition of Films given in the Chapter Notes. In absence of any definition of Foil, it is not reasonable to assert that the product, which does answers to the description of Film, is a Foil.
Revenue has not given any definition of the term Foil. The invoices describe the product both as Foil and Film at different places during certain period and as Film only for the rest of the period. The sole ground of the revenue that invoices for a part of the period described the product as both Foil and Film, is not sufficient to discharge the burden. - Decided against the revenue.
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2016 (7) TMI 151 - CESTAT CHENNAI
Clandestine removal of goods - manufacture of Cotton yarn falling under Chapter 52 - for the period from 01.01.1999 to 17.09.1999 - whether the appellant herein had indulged in the manufacture of dutiable cotton yarn in cones without accounting the same in the statutory records and clearing the said cotton yarn in cones clandestinely without payment of duty and without recording the said transactions in the statutory records.
Held that:- This is not just a case where there is a demand arisen on account of difference between the private records and the RG.1 registers but as per the record that there has also been corroboration with the shortages noticed in the raw material account. In the instant case, there have been confessional statements although there has been a retraction of the said statements. It is to be noted that retractions, as rightly observed by the lower authorities were merely an after-thought and if the case of the department is just based on the retracted statements, the appellant could possibly have a reasonable case to contest but in the instant case, there have been confessional statements, private registers and those private registers also substantially matched with the shortages.
All these factors cumulatively would show that the conclusion arrived at by the authorities cannot be faulted with. While it is true that the burden to prove clandestine removal is on the department, it cannot be expected of the department to prove the same with mathematical accuracy and precision as clandestine removal is a suruptious activity and in such type of cases, direct evidence would very rarely be forthcoming which would prove a case beyond all reasonable doubts. - Demand confirmed - Decided against the assessee.
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2016 (7) TMI 150 - CESTAT NEW DELHI
Cenvat Credit of service tax paid on GTA services - outward transportation of goods - Held that:- the place of removal is to be considered as the buyer’s premises and, hence, this gets covered within the definition of input service under Rule 2 (l), since the outward transportation service is used by the manufacturer for clearance of the products up to the place of removal. Consequently the Cenvat credit will be allowable as input service. - Decision in the case of CCE, Kolkata IV vs. Vesuvious India Ltd. [2013 (12) TMI 1025 - CALCUTTA HIGH COURT] distinguished - Decided in favor of assessee.
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2016 (7) TMI 149 - SUPREME COURT
Restoration of appeal before the Tribunal - CESTAT dismissed the appeal for non prosecution - due to inadvertance the counsel for the assessee could not remain present before the Customs, Excise & Service Tax Appellate Tribunal - SC restored the appeal before the tribunal subject to the condition that entire amount of duty as demanded shall be pre-deposited.
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2016 (7) TMI 127 - MADRAS HIGH COURT
Clandestine removal of goods - violation of principles of natural justice in not permitting the appellant to cross examine the persons from whom statements were recorded - Held that:- After going through the impugned order made in appeal No.E/40772/2014 dated 02.11.2015 of the CESTAT, Chennai, we find that the plea regarding violation of principles of natural justice, in not permitting the appellant to cross examine the persons from whom statements were recorded / witnesses, has not been dealt with and answered, by the tribunal.
When a specific plea regarding violation of principles of natural justice is raised, CESTAT, Chennai, is bound to record a specific finding, which is conspicuously absent.
CESTAT, Chennai, directed to pass appropriate orders only on the specific aforesaid issue - Decided partly in favor of appellant.
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