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Central Excise - Case Laws

Showing 161 to 177 of 177 Records

• 2012 (6) TMI 99 - CESTAT, KOLKATA
  

  Condonation of delay - dismissal of appeal on ground of it being time-barred by Commissioner (Appeals) without giving opportunity of being heard to appellant - assessee contended that delay was caused due to time-limit prescribed for filing the appeal being given as three months from communication of order in the impugned order dated 17.09.2008 - assessee also contended late receipt of order on 26.09.08 - Held that:- Since Commissioner (Appeals) has not granted any opportunity of hearing to the Applicant, before dismissing the appeal, which is in violation of the principles of natural justice. The case is, therefore, remanded to the Commissioner (Appeals) to examine all the aspects and decide.

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• 2012 (6) TMI 98 - CESTAT, AHMEDABAD
  

  Availment of CENVAT Credit of service Tax paid on the GTA services - Held that:- Considering the law and the provisions regarding availment of CENVAT Credit and definition of input service as mentioned in CENVAT Credit Rules, 2004, it can be concluded that the judgment in the case of CCE Bangalore Vs. ABB Limited [2011 (3) TMI 248 (HC)]is correct and the appellant or the assessee could avail the CENVAT Credit of Service Tax paid on GTA services - against revenue.

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• 2012 (6) TMI 97 - CESTAT, NEW DELHI
  

  Duty on capital goods cleared as scrap - capital goods in respect of which Cenvat Credit had been availed - respondents in course of proceedings before the Asst. Commissioner had claimed that the capital goods were not cenvat credit availed goods but the Asstt. Commissioner did not accept this plea and held that the goods were cenvat credit availed. finding is without any reference to the records. Since whether or not the capital goods, in question, were cenvat credit availed is verifiable fact, the impugned order is set aside and the matter is remanded back to the original adjudicating authority for de novo adjudication. revenue's appeal is allowed by way of remand.

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• 2012 (6) TMI 73 - CESTAT, NEW DELHI
  

  Excisability - Manufacture - dispute regarding manufacturer - demand imposed in relation to fabrication of structural and other items of steel on ground that same were manufactured by the appellant in their factory whereas assessee contended that said goods were being fabricated by the contractors, it is the contractor who has to be held as manufacturer - Held that:- Merely because the appellants were supplying the raw material, exercising supervisory quality control over the goods, and that the said fabrication was being done by the contractors as per the specifications of the appellants, it cannot be made a ground for holding that it is the appellants who had fabricated the goods when the contractors have admitted having fabricated the goods for and on behalf of the appellants. If that be so, the appellant cannot be held as a manufacturer.

  There is nothing in the Revenue's case to show that the said goods were manufactured by them for clearance from the factory. On the contrary, statements of contractors revealed that the goods were meant for use in the factory itself. Accordingly, applicants are entitled to the benefit of Notification No.281/86 dtd. 24.04.86 and Notification No.217/86, dtd. 02.04.86

  It is well settled law that when during the relevant period, the decisions of higher appellate forum were in favour of the assessee or there were conflicting decisions, no suppression can be attributed to the assessee so as to invoke the longer period of limitation.

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• 2012 (6) TMI 72 - CESTAT, NEW DELHI
  

  Clandestine removal - whether the shortages detected by the officers on weight method, can be said to be on account of clandestine removal - Held that:- There are number of decisions laying down that shortage detected at the time of visit of officers cannot admittedly lead to the findings of clandestine removal in the absence of sufficient corroborative evidences. In view of the foregoing, impugned order is set aside and appeal of appellant is allowed with consequential relief

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• 2012 (6) TMI 71 - CESTAT, NEW DELHI
  

  Whether the welding electrodes used for repair and maintenance of the plant and machinery of the sugar mills are eligible for cenvat credit – Held that:- in the case of Hindustan Zinc Ltd. (2008 (7) TMI 55 (HC)) welding electrodes used for repair and maintenance of the plant and machinery are eligible for cenvat credit as inputs as well as capital goods. appeals are allowed.

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• 2012 (6) TMI 70 - CESTAT, NEW DELHI
  

  Whether the appellant is eligible for availment of Cenvat credit on welding electrodes which is used by them for repair and maintenance of plant and machinery – Held that:- Cenvat credit can be availed on welding electrodes which are used for maintenance of plant and machinery. in the case of Vikram Cement (2009 (7) TMI 217 (Tri)). appeal is allowed

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• 2012 (6) TMI 51 - CESTAT, NEW DELHI
  

  Cenvat credit – by-product – input used for manufacture of dutiable and exempted final product – assessee was paying 10% of the value of the exempted final product at the time of clearance from the factory – Held that:- when the by-product, residual and waste & scrap is arising in the course of manufacture of main product, regularly and continuously and the same being sold in the open market, the intention of the manufacturer to manufacture and sell not only the main product but also the subsidiary product, cannot be considered as erroneous. It is his submission that the process of manufacture of by-product which arises is a continuous one and is continuously sold in the market. It is his submission that the provisions of Rule 11(3) of CENVAT Credit Rules, 2004 is not at all applicable as the appellants have followed the provisions of Rule 6(3) of CENVAT Credit Rules, 2004. It is his submission that the provisions of Rule 11(3) of CENVAT Credit Rules, 2004 will be applicable to a case where the manufacturer is manufacturing "a final product", which is exempted from payment of duty. It is his submission that the appellant being a manufacturer of more than one final product and discharging duty liability on other final products and only one final product being exempted, Rule 11(3) cannot be made applicable. provisions of Rule 6(2) and Rule 6(3) read together will cover the case of the assessee inasmuch as the appellant has claimed that they have reversed an amount as indicated in the provisions of Rule 6(3) of CENVAT Credit Rules, 2004. in the case of Bharat Petroleum Corpn. Ltd. (1992 (2) TMI 250 (SC)) would cover the issue in favour of the assessee. order is set aside and the appeal is allowed

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• 2012 (6) TMI 49 - CESTAT, MUMBAI
  

  Eligibility of the exemption Notification No.30/98 dated 1.3.1998 - Revenue demanded duty on the ground that the said product contained Niacinamide which is a vitamin B compound and therapeutically active ingredient in addition to Dexamethazone held to be not eligible for the exemption under the Notification – Held that:- The contents of Niacinamide are reported to be 20 mg per ml whereas the Prophylactic dose as per British Pharmacopoeia has to be between 5 mg to 30 mg per kg of body weight – as per these standards, the equivalent Niacinamide contents in Curadex would work out to be 20 times less than the recommended dose of Niacinamide as per BP - the exemption on such product under Notification could not be denied to the Appellants – in favour of assessee

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• 2012 (6) TMI 48 - CESTAT, MUMBAI
  

  Duty demand on the ground that paper cess is to be taken into consideration while calculating the amount of education cess and higher education cess - appeal dismissed on the ground as there is a delay of 20 days in filing the appeal and no sufficient reason has been explained - assessee contested that in the forwarding letter of the adjudication order, it is stated that the appeal can be filed within 90 days from the receipt of the order - Held that:- In the forwarding letter it was specifically mentioned that appeal can be filed within 90 days from the receipt of the order, hence finding merit in the contention of the applicants pre-deposit of the dues is waived for hearing of the appeal - the issue is covered against the Revenue in the case of CCE vs. Sahakari Khand Udyog Mandali Ltd. [2010 (3) TMI 718 (HC)] - matter is remanded to the Commissioner (Appeals) to decide the appeal on merits without asking for any pre-deposit - in favour of assessee.

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• 2012 (6) TMI 44 - CESTAT, MUMBAI
  

  Stay applications - allegation against the appellant company is that during the period of dispute i.e. from 01.04.2005 to 31.03.2006, they used common inputs viz. packing materials in or in relation to the manufacture of excisable goods as well as exempted goods without maintaining separate records - no reasons have been given for rejecting the appellant's plea that there was no manufacturing activity in respect of the goods which according to the department are exempted goods and while according to the appellant is only a trading activity – Held that:- original adjudicating authority must give a clear finding as whether the goods which are alleged to be exempted goods are the outcome of a process which amount to manufacture. The appeals are allowed by way of remand, Stay applications also stands disposed of

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• 2012 (6) TMI 27 - CESTAT, AHMEDABAD
  

  SSI Exemption - Simultaneous availment of benefit of Notification No.8/99-CE, dt.28.2.99 and Notification No.10/99-CE, dt.28.2.99, on the clearances of excisable goods i.e. air conditioning and Hi-Fi systems - Held that:- The issue is squarely covered by the various decisions of this Tribunal and more specifically by this very Bench in the case of Dhanraj Industries Vs. CCE Vapi [2011 (4) TMI 397 (Tri)]in favour of the appellants and therefore for calculating the first clearances which are exempt, there is no need to take clearances under another notification into consideration and the restriction in para 3 of Notification No. 10/99 is not applicable and the Notification No. 8/99 also has a similar condition - there is only one decision which is in favour of the Revenue which happens to be the earliest decision whereas there are many decisions on the issue which are in favour of the appellant which have taken the right view so not to consider it a fit case for referring the matter to the Larger Bench - in favour of the assessee

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• 2012 (6) TMI 26 - CESTAT, NEW DELHI
  

  Cenvat credit claim on the goods like H.R. Sheets, M.S. Angles, M.S. Channel, M.S. Beam and M.S. Plate - Held that:- Following the ratio of decision in Vandana Global Ltd. vs. CCE, Raipur[2010 (4) TMI 133 (Tri)],Saraswati Sugar Mills vs. CCE, Delhi-III[2011 (8) TMI 4 (SC)] wherein it is held that cement and steel items used for laying 'foundation' and for building 'supporting structures' cannot be treated either as inputs for capital goods or as inputs in relation to the final products and therefore, no credit of duty paid on the same can be allowed under the CENVAT Credit Rules for the impugned period - remanded to the adjudicating authority to decide the issue in the light of aforesaid decisions.

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• 2012 (6) TMI 24 - CESTAT, NEW DELHI
  

  Extended period of limitation – Revenue neutrality - respondents are clearing certain inputs as such to their sister unit raising invoices and charging duty on assessable value – Held that:- extended period is not invokable. show-cause notice has been issued on 6.2.2008 for the period June, 2005 to October, 2006 by invoking extended period of limitation is not correct as the respondents are regularly filing. R I Return showing clearance of inputs as such on assessable value. in the case of Jay Yuhshin Ltd. (2000 (7) TMI 105 (Tri)) if the assessee himself has to bear the tax liability, there is a situation of revenue neutrality. Appeal filed by the Revenue is dismissed.

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• 2012 (6) TMI 3 - CESTAT, AHMEDABAD
  

  Stay Petition for waiver of pre-deposit, interest thereof and penalty – Revenue stated that the appellant had been unable to produce Project Authority Certificate (PAC) and also that the 2 PACs were having same number, hence duplication - Held that:- On perusal of the papers produced by the assesse, indicate that PAC certificates were available with them today for justifying their claim of clearance and as regards duplication of the PAC number, the concerned Project authority has given a certificate giving the reasoning for duplication of same number - this kind of exercise of factual verification of PACs to the clearances made by the appellant needs to be done by the adjudicating authority so the matter needs to be re-considered – in favour of assessee.

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• 2012 (6) TMI 2 - CESTAT, MUMBAI
  

  Denial of Cenvat credit – respondent availed CENVAT credit on inputs and capital goods used in the manufacture of dutiable as well as exempted final products - proceedings were initiated against them for recovery of CENVAT Credit availed on services utilized in the manufacture of goods on job work basis which were cleared under the Notification No. 214/86-CE as amended and the lower adjudicating authority – Held that:- in the case of Escorts Limited. The learned Counsel appearing for the appellant is not able to point out any reason not to follow the decision of the Supreme Court. No question of law arises in this appeal. Appeals of revenue dismissed.

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• 2012 (6) TMI 1 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
  

  Revision application - rebate claim - On scrutiny of the rebate claim it was observed that they had not submitted the original and duplicate copies of ARE-1 required to be filed as para 8.3 (iii) and 8.4 of Chapter 8 of the C.B.E.C. Central Excise Manual and Supplementary Instructions and also that no documents in respect of final proof of export of goods and also showing the relevant date were submitted. On those grounds the rebate claim was rejected – Held that:- photocopies cannot be received as secondary evidence in terms of Section 63 of the Act and they ought not to have been received since the documents in question were admittedly photocopies, there was no possibility of the documents being compared with the originals. Government, therefore holds that non-preparation of statutory document of ARE-1 and not following the basic procedure of export goods as discussed above, cannot be treated as just a minor/technical procedural lapse for the purpose of granting rebate of duty on the materials used in the manufacture of impugned exported goods, no infirmity in the impugned order-in-appeal, revision application is rejected

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