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Central Excise - Case Laws

Showing 401 to 412 of 412 Records

• 2017 (9) TMI 24 - ALLAHABAD HIGH COURT
  

  Stay/waiver of the pre-deposit - Section 35F of the Central Excise Act, 1944 - Whether the CESTAT is justified in rejecting the stay/waiver application of the appellant to waive the condition of pre-deposit of the entire disputed amount of the duty for entertaining the appeal under Section 35F of the Act? - Held that: - deposit of the duty demanded under the impugned order or the penalty levied is a condition precedent for adjudicating the appeal but the said condition in a given case may be waived by the Appellate Tribunal - The second proviso to Section 35F of the Act, as amended, is very clear and it specifically excludes the appeals already filed and pending before the Appellate Authority from the applicability of the amended provisions of Section 35F of the Act - In view of the second proviso to the Section 35F of the Act would not apply to appeals which were filed prior to the enforcement of the amending Act and were pending on the date of its enforcement.

  There is no dispute to the fact that the appeal before the Tribunal was filed on 9.1.2014 much before Section 35F of the Act was amended and enforced. Therefore, the appeal filed by the appellant is to be governed by the un-amended provisions of Section 35F of the Act, which provides for the deposit of the entire disputed amount. Since the petitioner has not deposited the same, his appeal could not be heard on merits - t no case for any ground of stay/waiver of the deposit of the disputed amount is made out as the Revenue has a strong prima facie case in his favour meaning thereby that the chances of the success of the appellant in appeal are weak - appeal dismissed - decided against appellant.

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• 2017 (9) TMI 23 - GUJARAT HIGH COURT
  

  Penalty u/s 11AC - Whether the penalty under Section 11AC which is mandatory in nature can be reduced or waived by the Hon'ble CESTAT? - Held that: - This provision provides for a penalty wherein duty of excise has not been levied, paid or short paid or erroneously rejected by reasons of fraud, collusion or any willful misstatement or suppression of facts, or contravention of any of the provisions of the Act or rules with intent to evade payment of duty. In such a case person liable to pay duty shall also be liable to pay a penalty equal to duty so determined.

  Penalty was mandatory and the Tribunal did not have discretion to reduce the amount as held by the Supreme Court in case of Dharamendra Textile Processors [2008 (9) TMI 52 - SUPREME COURT] - appeal allowed - decided in favor of appellant-Revenue.

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• 2017 (9) TMI 22 - CESTAT CHENNAI
  

  Cenvat Credit - Cement as inputs - Benefit of N/N. 67/95-CE dated 16.3.1995 - department was of the view that the cement has been utilized for construction activities and therefore is not utilized in or in relation to the manufacture of final products - whether the cement used for setting up of the new plant and machinery installed by the appellant can be considered as an input? - Held that: - the definition of input says that input means goods used in or in relation to manufacture of final products or for any other purpose within the factory of production, whether or not it is contained in the final product. This being so, the demand raised is without basis - demand set aside - appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 21 - CESTAT CHENNAI
  

  Refund of eligible abatement of quantity discounts - department was of the view that the appellants are not eligible to claim any abatement as quantity discounts from the sales effected at the depot and a show cause notice was issued proposing to reject the refund claim - Held that: - issue whether appellants are eligible for such quantity discount has been settled by the Larger Bench of the Tribunal in the case of India Laboratories Pvt. Ltd. [2007 (5) TMI 19 - CESTAT,AHMEDABAD], where it was held that Quantity discount not available on goods contained in Multi-pack - demand upheld - appeal dismissed - decided against appellant.

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• 2017 (9) TMI 20 - CESTAT CHENNAI
  

  Validity of SCN - differential duty with interest paid on being pointed out - penalty - job-work - Held that: - after being pointed out by the audit, the appellants have paid the duty along with interest. In such a case, the show cause notice ought not to have issued - So also the intention to evade payment of duty cannot be alleged when the job worker / vendors/ HLL is eligible to take CENVAT credit on the duty paid. Thus, the situation would give rise to revenue neutral - penalty set aside - duty with interest paid is upheld - appeal allowed - decided partly in favor of appellant.

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• 2017 (9) TMI 19 - CESTAT ALLAHABAD
  

  CENVAT credit - structural items like Angles, H.R. Sheets, Shapes and Sections, Channels, H.R. Plates, etc - case of Revenue is that according to the Budget 2009-10 exclusion of Cement, Angles, Channels, Centrally Twisted Deformed Bass (CTD) or Thermo Mechanically Treated Bar (TMT), etc. were excluded from definition of Rule 2(k) of the Cenvat Credit Rules, 2004 - Held that: - the Order-in-Appeal dated 31/03/2015 was decided relying on the decision of Larger Bench of this Tribunal in the case of Vandana Global Limited [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)], where it was held that the clarificatory amendment made to Explanation 2 to Rule 2(k) in 2009 has to be held to be retrospectively applicable, is not sustainable - credit allowed - demand set aside - appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 18 - CESTAT BANGALORE
  

  CENVAT credit - input services - depository/demat charges - membership/subscription charges - Input Service Distributor (ISD) invoices issued based on the invoices addressed to other units - Held that: - reliance palced in the case of M/s. Bharat Fritz Werner Ltd. Vs. CCE [2011 (2) TMI 1276 - CESTAT, BANGALORE] wherein it has been held that CENVAT credit on service tax on operating Demat Account for the business purpose is permissible - Further, membership/subscription charges have already been allowed by this Tribunal in the appellant's own case BAL PHARMA LTD. Versus COMMR. OF C. EX., CUS. & ST., BANGALORE-I [2014 (10) TMI 564 - CESTAT BANGALORE] - all the services are covered under the ‘input service’ definition - appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 17 - CESTAT MUMBAI
  

  CENVAT credit - input/capital goods - welding electrodes used in the factory for fabrication - Held that: - welding electrodes are playing important part in the manufacturing process of the respondent-assessee, therefore, welding electrodes are eligible for CENVAT credit as input as per Rule 2(k) of CCR, 2004 - reliance placed in the case of AMBUJA CEMENTS EASTERN LTD. Versus COMMISSIONER OF C. EX., RAIPUR [2010 (4) TMI 429 - CHHAITISGARH HIGH COURT], where it was held that welding electrodes used in repair and maintenance of plant and machinery are inputs as defined under Rule 2(g) defined in the rule, and thus entitled for cenvat credit - credit allowed - appeal dismissed - decided against Revenue.

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• 2017 (9) TMI 16 - CESTAT NEW DELHI
  

  Intermediate product - captive consumption - N/N. 50/2003-CE dated 10/06/2003 - resins manufactured by the appellants are consumed captively - excisability/marketability - Held that: - the Tribunal, Allahabad Bench have dealt with the very same issue for the earlier period in the appellant’s own case vide final order No.70520 of 2017 dated 19/05/2017, where it was held that learned Commissioner have erred in holding that the appellant’s goods are also capable of being bought and sold without any chemical composition comparison alongwith competitive shelf life study - appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 15 - CESTAT CHENNAI
  

  Clandestine removal - cotton cone yarn of various counts - Revenue entertained a view that the said manufacturing unit must be raising the invoices but have not accounted the same in the statutory records - Held that: - It is for the Revenue to prove by production of tangible evidence that the appellant had been indulging in clandestine activities. Needless to observe that such corroboration cannot be by mathematical precision but should be atleast to an extent so as to inspire confidence even in the theory of preponderance of probabilities - In the present case, apart from the entries in the yarn broker's diary and the transporter's records, there is virtually no evidence establishing manufacture of such a huge quantity of yarn, their clearance etc - demand set aside - appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 14 - CESTAT NEW DELHI
  

  SSI exemption - N/N. 9/2003 dated 01/03/2003 - switchover from discharging normal excise duty to small scale exemption - the appellants were discharging Central Excise duty for the year 2004-2005 in terms of N/N. 9/2003 dated 01/03/2003. The said notification was rescinded w.e.f. 01/04/2005. During the financial year 2005-2006, for the period 01/04/2005 to 31/08/2005, the appellants had paid duty on the goods. However, the appellants started availing exemption under N/N. 8/2003-CE from 01/09/2005 to 31/03/2006 and surrendered the Central Excise registration - case of Revenue is that when the appellant continued to pay duty at the normal rate even in the new financial year 2005-2006, they cannot switch over to the SSI exemption in the middle of the year.

  Held that: - Evidently, the appellants did not opt for availing exemption available to small scale industries in terms of Notification 8/2003. We are not convinced by the argument of the appellant that they have never given in writing their option not to avail exemption under this notification. Clearly, the appellants paid duty at the normal tariff rate for 5 months from 01/04/2005 without opting for SSI exemption under Notification 8/2003. It is clear that they have specifically opted not to avail the exemption during this period. Their plea that they have not filed written option in this regard will not help their case. Their failure to file a written letter cannot add to the benefit of the appellant. Their payment of duty upto 31/08/2005 clearly shows that they have not opted for exemption under the said notification. As such, they cannot switch over to SSI exemption, as per their choice, in the middle of the year.

  The appellants pleaded for recalculation of duty demand considering the gross receipt as cum duty value. We hold that the same can be done on submission of evidence by the appellants to the effect that they have not indicated in their sales invoice or collected Central Excise duty separately - The eligibility of Cenvat credit on various inputs claimed to have been used during the period for clearance of final products can also be verified by the Jurisdictional Authority - appeal allowed by way of remand.

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• 2017 (9) TMI 13 - CESTAT NEW DELHI
  

  Sub-contract - the main appellant paid service tax on the work executed by them as a sub-contractor to the second appellant - fabrication of CW liners, pipes and bends, in terms of work order dated 15.07.2009 - whether the main appellant is required to pay Central Excise Duty on manufacture of pipes? - Held that: - On careful consideration of various provisions of the said work order, we find that the main appellant cannot be considered as a labour contractor, simply providing labourers for certain work. It is clear that they have undertaken various fabrication work in terms of work order in their own account using the material supplied by the main contractor - we uphold the findings of the original authority regarding the duty liability of the main appellant with reference to manufacture of pipes and bends.

  Time limitation - Held that: - the main appellant has undertaken manufacture of excisable goods and are liable to pay duty. The demand for an extended period is sustainable. However, the quantification of duty demand as well as the correctness of finding regarding confiscation and consequent redemption fine has to be re-examined by the original authority.

  Penalty u/r 26 of CE Rules, 2002 - Held that: - we note that the second appellant is a limited company. In various decisions, the tribunal has held that penalty under Rule 26 can be imposed only on individuals and not on companies - the order has been passed exparte and the appellant had claimed that due opportunity has not been provided to them to defend their case. In fact they claimed that they have filed reply to the SCN 24.12.2011 which was not considered. The original authority is required to decide the case of penalty, afresh.

  Appeal decided against appellant in part and part matter on remand - Appeal allowed by way of remand.

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