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Central Excise - Case Laws
Showing 81 to 100 of 196 Records
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2014 (6) TMI 620
Demand of duty - Incomplete RG-1 Register - shortage of physical stock of final product - Seizure of goods - Held that:- red diary seized has not been challenged; its recovery has not been challenged; the original adjudicating authority had made specific observations about parallel invoices and at least in the case of one customer viz. M/s. Prakash Tyre Works, Kolhapur, there is no challenge to the observation that there were parallel invoices; other specific instances brought out by the original adjudicating authority have also not been challenged. The above facts brought out would show that neither side has been able to show as to what exactly is the quantum of clandestine removal. The assessee should have submitted a statement showing the exact quantity in the red diary which was shown as cleared as per statutory records and arrived at the quantum of differential duty which they have not done.
Department also in spite of the statement of Shri Mustafa Khan that certain portion of the red diary have been cleared on payment of duty and further he was not admitting the entire clearances in red diary as clandestine removal, no efforts have been made to quantify the exact quantum of tread rubber cleared without payment of duty. In such a situation, both sides have failed to make out a case in their favour in accordance with their submissions - It will be unfair on my part to either uphold the entire demand or to adjourn the matter for further quantification in view of the fact that the case relates to the year 1995-96 and the matter is coming before this Tribunal for second time. Under these circumstances, keeping the total amount involved for consideration and the facts as discussed above, in my opinion, it would be appropriate if the assessee is required to pay the duty on the quantity found short at the time of visit of the officers - Decided partly against assessee.
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2014 (6) TMI 619
Denial of benefit of notification - Whether the state Electricity Board can be termed as State Government - notification no. 74/93–CE, dated 20.02.93 - Held that:- State Electricity Board cannot be considered to be a Government or its Department and mere ownership of 100 % capital by State Government will not make the Electricity Board at par with the State Government. Accordingly, the benefit of Notification No. 74/93 – CE is not available to the Electricity Board. - Following decision of Asstt. Engineer (Civil) V/s. CCE, Raipur reported as [2008 (9) TMI 105 - CESTAT NEW DELHI] - Decided against assessee.
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2014 (6) TMI 618
Duty demand - Difference in loss - appellant is receiving lubricating oil from M/s. IOBL, Kolkata either on payment of duty or without payment of duty under bond - assessee were repacking the same into small packs to be sold in the market under their own brand and style - Held that:- Admittedly the duty is being demanded in respect of difference on account of loss or shortage which was allowed under Standards Weights and Measures (Packaged Commodities) Rules, 1977 as also in terms of Input-Output Norms declared under Exim Policy 2002-2007. There is no evidence on record to show that such shortage/wastage was used by the appellant in the manufacture of final products and stands cleared by the appellant without payment of duty - Decided against Revenue.
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2014 (6) TMI 617
Waiver of dues - Denial of CENVAT Credit - Revenue contends that credit availed without receiving inputs - Held that:- authorized signatory M/s. Dhuleva Trading Corporation admitted that the goods were supplied and only proprietor of M/s. Nakoda Trading Coprn. has denied the supply of the inputs. The applicants availed credit in respect of the input received from M/s Nakoda Trading Corpn. to the extent of approximately Rs. 60 lakhs. In these circumstances, the offer made by the applicant is sufficient for hearing of the appeal - stay granted partly.
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2014 (6) TMI 616
Waiver of pre deposit - CENVAT Credit - manufacturing of Capital goods - use of M.S. Angles, Channels, M.S. Flats, Plates, M.S. Bar, CTD Bars, Joist, Beams, Coils Welding Electrodes, LPG Gas, Oxygen Gas, etc. for fabrication and erection of supporting structures required for mounting of machines, erection of heds etc. - Held that:- appellant’s plea is that these items were used for fabrication of various items of capital goods or their components and accessories. However, in support of this claim, the appellant have not produced any evidence, as neither the fabrication of the capital goods nor components or accessories have been specifically intimated by the appellant to the jurisdictional central excise officers nor the fabrication of various items of capital goods and their components and accessories was declared in the ER-I return. - Cenvat credit in respect of these items would be admissible only if there is conclusive evidence that these items had been used for fabrication of capital goods and their components, parts and accessories. But prima facie, such evidence in this case is lacking. Therefore, we are of the prima facie view that the items were not eligible for cenvat credit either as inputs or as capital goods. - this is not case for total waiver - stay granted partly.
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2014 (6) TMI 586
Availment of input service credit paid on commission - Trading services - extended period of limitation - Held that:- appellant availed input service credit on commission for procurement of orders. On perusal of the impugned order, it is seen that the input service credit in respect of manufacturing activity, service tax on commission was allowed. Credit was denied in respect of that portion of service tax relating to the commission paid on the trading goods. The definition of ‘input service’ under Rule 2(l) of the CENVAT Credit Rules means any service used by a manufacturer whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products. In the present case, there is no dispute that the appellant availed credit on commission in respect of trading goods, which are not in or in relation to the manufacture of final products and therefore there are not eligible to avail credit on the commission paid on trading goods. - credit was rightly denied - Decided against the assesssee.
Appellant had not disclosed the availment of input service credit on commission in respect of trading activities. These facts came to the knowledge of the Department only on verification of the documents such as contract agreements, commission agreements etc. So there is no merit in the submission of the learned counsel on limitation - Decided against assessee.
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2014 (6) TMI 585
Waiver of pre deposit - Penalty u/s 11AC - Whether the goods are liable to be assessed under Section 4 or 4A of the Central Excise Rules, 1944, a debatable issue - Held that:- Applicants had submitted that the differential duty applying the value under Section 4 of Central Excise Act, 1944, has been worked out to Rs.52.72 lakhs and the computation of demand by the ld.Adjudicating Authority has been disputed. At this stage, we find that the offer made by the ld.Advocate for the Applicant, seems to be reasonable - Conditional stay granted.
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2014 (6) TMI 584
CENVAT Credit - Credit on strength of debit notes - duty paying documents - Held that:- Rule 4A of Service Tax Rules, 1944 provides that the taxable service to be provided or credit to be distributed on invoices, bill, challan. It has also prescribed that such invoices, bill or challan or as the case may be, shall be serially numbered and shall contain the name, address and the registration number of such person and other informations as specified therein. It appears that the debit notes placed by the learned counsel and that the debit notes issued by the service provider had fulfilled all the conditions as prescribed under Rule 4A (1) of the Service Tax Rules, 1944. - there is no reason to deny the credit on the basis of the debit notes subject to verification of the documents placed by the learned counsel. - matter remanded back - Decided in favour of assessee.
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2014 (6) TMI 583
CENVAT Credit - whether an assessee is eligible to avail CENVAT Credit of an amount paid as Service Tax by a service provider in respect of installation and erection, maintenance or any other services rendered at wind mills, which are located away from the factory premises and the electricity generated out of such wind mills is consumed at the factory premises after such power is to put through the common grid - Held that:- there being contrary views expressed as regards the availment of CENVAT Credit of Service Tax paid on the services rendered by a service provider at wind mill farms which is situated away from the factory premises, this matter needs to be sorted out by a Larger Bench. - Matter referred to larger bench.
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2014 (6) TMI 582
Waiver of pre-deposit - CENVAT Credit as distributed by input service distributor (ISD) - reversal of credit towards exempted products - Held that:- there is no dispute as to the fact that appellant is availing Cenvat credit of the Service Tax paid on the input services distributed by their Head Office as Input Service Distributor. It is also undisputed that the appellant is utilising the ISD service tax credit for discharge of Central Excise duty on the goods manufactured and cleared by them. It is seen from the records that the appellant has claimed that they have reversed the amount which is attributable to the input services which go into manufacturing of exempted products, as per the provisions of Rule 6(3) of Cenvat Credit Rules, 2004. We also find from the certificate issued by the Chartered Accountant that it is so. At this juncture, though the appellant could have intimated the departmental authority regarding the option of reversal of input services which are attributable to the exempted goods but having reversed the same, we find that appellant has made out a prima facie case for the waiver of pre-deposit of amount which are confirmed against the main appellant on the ground that they are liable to pay 5% of the value of the exempted goods cleared from their factory premises - Stay granted.
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2014 (6) TMI 581
Waiver of pre-deposit of duty - Affixing of retail price on goods - cosmetic products - Revenue contends that applicants are affixing retail sale price on the goods imported which amounts to manufacture therefore the appellants are liable to pay Central Excise duty. - Held that:- There is no evidence on record to show that applicants undertaking any activity which amounts to manufacture as applicants were not labelling or relabelling of packages nor affixing any retail sale price after the clearance from the customs. The retail sale price is affixed before the clearance of the goods from the customs area as per the requirement by the Notification No. 44(RE-2000)/1997-2002, dated 24-11-2000 and paid the CVD duty as per the retail price fixed on the goods. In view of this, we find that the applicants had made out a strong case in their favour. The pre-deposit of dues are waived and recovery of the same is stayed during the pendency of the appeal - Stay granted.
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2014 (6) TMI 553
Waiver of pre deposit - area based exemption - non filing of declaration / application exercising the option to avail the exemption - Notification No.50/2003-CE dated 10.6.2003 - Held that:- Requirement of exercising the option and providing specified and mandated particulars, enjoined by Notification No.76/2003-CE, is intended to keep the Government informed of and to place on record relevant particulars enjoined by the Notification to be conditions precedent for availment of exemption benefits thereunder provided. It is in the nature of mandatory stipulation to ensure that there is no escapement or leakage of Excise Duty. This requirement is therefore prima facie mandatory and not discretionary. - This view flows from the decision of the Constitution Bench in Hari Chand Shri Gopal (2010 (11) TMI 13 - SUPREME COURT OF INDIA).
Amount of duty demand with interest directed to be pre-deposited - stay granted in respect of penalty only - stay granted partly.
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2014 (6) TMI 552
Cenvat Credit - procurement of fabric from dealer - fraudulent activity - whether the appellant is to be saddled with demand of the Cenvat Credit availed by them on the invoices which were issued by the processors while availing Cenvat Credit on the invoices which were issued by fabric manufactures who were non-existing during the relevant period - Held that:- processors had availed Cenvat Credit on the invoices of fabric manufacturers who were non-existing and passed on the same to the appellant. At the outset, we find that there is no dispute as to the fact that the appellant had filed monthly returns for the period May 2004 to February 2005 with the authorities. The contentions of the Ld. Departmental Representative that the appellant was aware that the fabric manufacturers were non-existence or fake is not borne out from any of the records available before us in as much as, there is no statement recorded of the proprietor of the appellant or any employee. It is also seen from the impugned order that the appellant herein had sought cross examination of the persons who had signed the invoices issued by the fabric manufacturer to these six processors and a claim was made that the said manufacturers are still in existence. This vital submission was not followed up by the lower authorities, in order to establish that the appellant had knowledge of non-existence of these six processors - Demand is also barred by limitation. - Matter remanded back - Decided in favour of assessee.
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2014 (6) TMI 551
Confiscation of goods - Penalty - Whether the seized goods, which was kept at the first floor of the registered premises, is liable to confiscation on the findings that the same was cleared from the appellant factory, with a malafide intention to subsequently clear the same in a clandestine manner - Held that:- Appellant had taken a categorically stand before the authorities below that the material was temporarily shifted to first floor as the registered premises were being painted on account of the marriage ceremony in the family. The statutory records could not be produced on the visit of the officer inasmuch as they were also shifted by the concerned person, who had already left for Kolkata. The said person was called by the appellant and the records were produced by them on the very next day which stands rejected by the authorities below as an after thought - confiscation of the goods and imposition of penalty on both the appellant is not called for. However, I find that as the appellant have transferred the goods to the first floor without the permission of the officers which is a procedural and technical laps, the same requires imposition of token penalty, in terms of provision of Rule 27, which provides a maximum penalty of ₹ 5,000/-. Accordingly penalty on M/s. Vikram Prasad Vinod Kumar is reduced to ₹ 5,000 - Penalty reduced - Confiscation of goods set aside - Decided Partly in favour of assessee.
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2014 (6) TMI 550
CENVAT Credit - inputs like angle, beams etc. - Manufacturing of capital goods such as Roller Table, Furnace, Weigh Bridge and Cooling Bed - Reversal of CENVAT Credit - Held that:- these inputs have been used by the respondents for manufacturing capital goods and same has been explained by the respondents in reply to the show cause notice. That fact remains uncontroverted. Therefore, the said fact has been admitted. If that fact is admitted, there is no question of denial of input credit. - Decided against Revenue.
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2014 (6) TMI 549
Waiver of pre-deposit of penalty - Penalty under Rule 25 of the Central Excise Rules, 2002 - penalty on purchaser of goods - Held that:- adjudicating authority has not imposed any penalty under Rule 26 but has imposed penalty under Rule 25 of the Central Excise Rules, 2002. On bare reading of the provisions of Rule 25 of the Central Excise Rules, 2002 we find that penalty can be imposed under the specific rule on producer, manufacturer and registered persons and not on the purchaser who has placed an order for supply of goods. In view of the foregoing, we find that the appellant has made out a prima facie strong case for waiver of the pre-deposit of the amounts involved - Stay granted.
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2014 (6) TMI 548
Denial of CENVAT Credit - whether the service tax paid on commission agent services is available as Cenvat credit to the appellants by treating the same as input services in terms of Rule 2(l) of Cenvat Credit Rules, 2004 - Held that:- Circular No. 943/4/2011-CX., dated 29-4-2011 issued by the Board clarifies that even after the deletion of expression “activities related to business” from the definition of input services, the credit of Service Tax paid on the sales promotion activities and on the services of sales of dutiable goods on commission basis would be admissible as credit. It is the contention of the learned advocate that even after the “activities related to business” stand deleted from the definition of inputs credit, as per the Board’s Circular, the Service Tax paid on commission agent services would be available. However, he clarifies that period involved in the present case is prior to the amendment to the definition of input services - Following decision of C.C.E., Ludhiana v. Abhishek Industries Ltd. as reported in [2007 (10) TMI 583 - CESTAT NEW DELHI] - Decided in favour of assessee.
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2014 (6) TMI 547
Valuation of goods - sale to related parties - Valuation in terms of Rules 8 and 10 of Valuation Rules - Held that:- appellants are also selling the ingots to independent buyers. The price at which the goods are being sold to the so called related units is either at par or more than the price at which goods are sold to independent buyers. We note that the provision of Rules 8 and 10 of Valuation Rules are applicable when the entire production is being sold to the related persons. Inasmuch as the price at which ingots are also being sold to independent wholesale buyers is available, the same is required to be adopted for the purpose of sale to the so-called related persons. As such, on this ground itself, we are of the view that the appellant has a prima facie case in its favour so as to dispense with the condition of pre-deposit of duty and penalty - Stay granted.
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2014 (6) TMI 520
Jurisdiction of court - Whether High Court of Delhi have the jurisdiction to entertain the appeal of the Revenue - Condonation of delay - Held that:- against an earlier order in the case of the respondent-assessee, the Revenue has preferred an appeal before the Madras High Court - Court is not inclined to issue notice in the application for condonation of delay as this Court does not have jurisdiction to entertain the appeal. It will be open to the appellant to file an appeal before the High Court having jurisdiction - Decided against Revenue.
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2014 (6) TMI 519
Demand of interest on delayed payment of additional duty on TEA - additional duty of excise payable under Section 157(1) of the Finance Act 2003 - applicability of provision of Central Excise Act, 1994 toward demand of interest - Held that:- there is no substantive provision contained in the Finance Act 2003 to charge/levy interest on delayed payment of additional excise duty payable under Section 157(1) - liability to pay additional duty of excise on tea is created for the first time by Section 157(1) of the Finance Act 2003. However, the Finance Act of 2003 does not contain any substantive provision to charge/levy interest from the assessee in case if payment of additional duty of excise is not made or made late. So far as Section 157(3) is concerned , it does not mention the word “interest” but only mentions the words “imposition of penalty, refund and exemption”. In other words, by virtue of Section 157(3), only provisions relating to “imposition of penalty, refund and exemption” from Central Excise Act are made applicable to Finance Act, 2003.
This, therefore, clearly suggests that so far as levy of additional duty of excise on tea is concerned, no provision is made applicable to the levy relating to payment of interest for its delayed / short / non-payment. To put it differently, firstly, there is no provision made to levy/ charge interest in the Finance Act, 2003: secondly, substantive provision relating to levy/ charging of interest from Central Excise Act is not made applicable to Finance Act, 2003 and thirdly, by virtue of Section 157(3), only provisions relating to penalty, refund and exemption contained in Central Excise Act are made applicable to Finance Act, 2003.
Revenue may have power to charge interest from the assessee for non-payment/ short payment/ delayed payment of “excise duty” on the excisable goods but there is a distinction between “ additional duty of excise” and “ excise duty”. The former is paid under the Finance Act 2003 whereas the later is paid under the Central Excise Act. Since the Finance Act, 2003, does not contain any substantive provision to charge interest, a fortiorari - no demand for interest could be raised for non-payment/ short payment/ delayed payment of additional excise duty under the Finance Act, 2003. Such is not the case of non-payment /short payment /delayed payment of “excise duty” because it is paid under the Central Excise Act which contains a specific substantive provision to charge the interest. If the intention of legislature was to levy interest also on non-payment/short payment of “additional duty of excise” then, it would have made separate specific substantive provision in the Finance Act, 2003 itself. However, it was not done.
Impugned demand raised by respondent is without jurisdiction as it was issued by the department without there being any substantive provision to levy/charge interest in the Finance Act, 2003. It is therefore not legally sustainable and has to be quashed. - Following decisions of J.K.Synthetics Ltd Vs CTO [1994 (5) TMI 233 - SUPREME COURT] and India Carbon Ltd vs State of Assam [1997 (7) TMI 566 - SUPREME COURT OF INDIA] - Decided in favour of assessee.
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