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Central Excise - Case Laws
Showing 41 to 60 of 1051 Records
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2015 (10) TMI 2526 - CESTAT ALLAHABAD
Cenvat credit - welding electrodes, channels, hot strip mill plate, angles, MS plate, TMT bars, GCGSC sheet et cetera - improper cenvat credit taken - reversal of cenvat credit on some items like girder, hot strip mill plate, TMT, GCGSC sheet, which were used in civil work prior to issue of SCN - other items were used for repairing purpose of old plant and machinery and not used as capital goods nor as inputs for manufacturing of capital goods in the factory - Held that:- it is found that, save and except the inputs which have been used in civil work and which was not disputed and reverse entry was passed during the course of investigation. The other goods have been utilised in the repair and maintenance of capital goods which are further used in the production of the excisable finished products. In view of the fact that no final product can be manufactured without the repair and maintenance and upkeep of the capital goods, the inputs required for the upkeep and maintenance are eligible inputs for Cenvat credit. - Decided in favour of appellant with consequential relief
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2015 (10) TMI 2525 - CESTAT MUMBAI
Eligibility to concessional rate of duty - Notification no. 8/2000 dated 1st March 2000, Notification no. 9/2001 dated 1st March 2001, Notification no. 9/2002 dated 1st March 2002 and Notification no. 9/2003 dated 1st March 2003 for the period from July 2000 to June 2003 - log used by the respondent was a trademark belonging to another person - Held that:- it is clear that there is an assignment of the brand name of ‘CMS’ under a deal for a fixed period. It is also clear that the products of the respondent are in no way connected to the products manufactured by the assignor of the brand name. Therefore, in view of the various settled position in law, the appellant is eligible for concessional rate of duty under various notifications. - Decided against the Revenue
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2015 (10) TMI 2523 - CESTAT NEW DELHI
Refund claim - Notification No. 51/94-C.E. (N.T.), dated 22-9-1994 and Notification No. 45/2001-C.E. (N.T.), dated 26-6-2001 - duty paid on export - payment is received in freely convertible currency and the procedure laid down is fulfilled - bond for clearance of goods under above notifications, not executed by the appellant - Held that:- Needless to say the condition to execute bond is incorporated in the notification to safeguard the revenue when the export is made without payment of duty. In the present case, the goods have been exported after payment of duty. The execution of bond, in such case, would be a futile exercise. The second condition of receiving payment in foreign currency is undeniably fulfilled by the appellant. Therefore, by applying the ratio of decision of Apex Court in the case of Share Medical Care v. Union of India [2007 (2) TMI 2 - SUPREME COURT OF INDIA], even if the assessee does not claim benefit under particular notification initially, he is not debarred from claiming such benefit at the later point of time. Hence, we are able to reach inescapable conclusion that the appellant is entitled for refund. - Decided in favour of appellant
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2015 (10) TMI 2522 - CESTAT, MUMBAI
Whether the impugned order has examined that dispute in the present matter in the light of the direction issued by this Tribunal - adjudicating authority has approved the action of the Board in amending the anomaly in the circular of 25th April 2005 by circular of 16th June 2005 and has invalidated the decision of the Larger Bench in re Eicher Tractors [2005 (9) TMI 340 - CESTAT, NEW DELHI] - Commissioner has not discharged the directions of the remand - Held that:- The Larger Bench was seized of the earlier decision of the Tribunal in re Eicher Tractors holding that fresh valuation at the time of removal would not be in conformity with the statute as the goods have already borne the burden of duty of excise. Further, the genesis of the reference to the Larger Bench was also a matter of consideration. Above all else was the factum of rescinding of the erstwhile Central Excise Rules, 1944 with effect from 1st July 2001 and subsequent notification of the CENVAT Credit Rules, 2002. Taking note of a clarification issued by the Central Board of Excise & Customs in circular no. 6/39/2000-CX-I dated 1st July 2002 for handling removal of inputs effected under erstwhile provisions by categorizing them for determining value under section 4 of Central Excise Act, 1944 and the subsequent clarification in circular no. 813/10/2005 dated 25th April 2005, the Larger Bench confirmed that the latter prevailed and continued to prevail, notwithstanding the circular of 16th June 2005, in view of the superceding nature of the clarification issued in April 2005. It was not open to the adjudicating Commissioner to go beyond the decision of the Larger Bench unless it was distinguishable. There is no finding by the Commissioner to that effect. he appellant had reversed the credit of duty taken or paid equivalent amount and was, thereby, in conformity with Rule 3(5) of CENVAT Credit Rules, 2004 as applicable to earlier clearances. This is in conformity with the ruling of the Larger Bench supra. - Decided in favour of appellant
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2015 (10) TMI 2521 - CESTAT ALLAHABAD
Cenvat credit - Service tax paid on transport charges for transportation of cement from the factory to the premises of the buyers - appellant were paying duty on basis of retail sale price preprinted on the cement bags as per notification number 4/2006-CE - goods are sold on FOR basis on the door step of the buyer - Held that:- in the facts of this case, “the place of delivery of goods” is the customer’s premises and the freight is borne by the appellant manufacturer. The “place of removal” has to be held at the customer’s premises This position has been clarified by CBEC in the Circular No. ST/137/85/2007-CX-4 dated 23/8/2007. Even after the amendment in the definition of input services with effect from 1/4/2008 replacing the words “from the place of removal” by “up to the place of removal” the place of removal gets extended up to the buyer’s premises in the case of FOR-destination sales and as such, the said amendment does not make any difference, where the sales are on FOR-destination basis. In the case of destination sale, the ownership and property is transferred when the manufacturer delivered the goods to the buyer at his premises. Accordingly, I hold that Cenvat Credit of service tax is available to the appellant on outward transport for FOR Sales made to the buyers. - Decided in favour of appellant with consequential relief
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2015 (10) TMI 2520 - CESTAT ALLAHABAD
Cenvat credit - Violation of provisions of Cenvat credit rules read with rule 2(iii) of Notification No. 8/2003 - Appellant took credit prior to 18/11/2009, date from which SSI exemption limit has been exceeded - Held that:- the appellant have only taken and not utilized the Cenvat credit prior to 18/11/09, when it started paying tax on the clearances, I hold that it is only a venial breach of the provisions. In such circumstances the substantial benefit should not be denied to the appellant. Accordingly this issue is decided in favour of the appellant and the appellant is held entitled to the Cenvat credit so availed. However, as the appellant have made venial breach of the provisions, the penalty of ₹ 5000/- imposed under Rule 27 is confirmed. - Decided partly in favour of assessee
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2015 (10) TMI 2518 - CESTAT ALLAHABAD
Variation of actual stock of sugar and baggase with the records – Held that:– variation tolerable as there is bound to be some error in the stock taking as the element of estimation is present – appeal allowed for this issue
Baggase and press mud not excisable - extended period of limitation not invokable on scrap sold – proper invoices issued,all records maintained – on sale of scrap normal period of duty imposed – duty on tin deleted – penalty imposed set aside – appeal allowed in part.
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2015 (10) TMI 2516 - CESTAT ALLAHABAD
Cenvat credit availed on inputs utilised in the fabrication of tools and dies denied - Held that:- It is an admitted fact that the appellant have utilised the inputs in question falling under Chapter 72 of the CET Act in the fabrication of tools and dies which have been further utilised in the main factory for manufacture of goods which have been cleared on payment of duty. Further as find that moulds and dies, have been defined as capital goods in Rule 2(A)(iv) of the Cenvat Credit Rules, 2004. Accordingly, allow the appeal with consequential benefits if any.
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2015 (10) TMI 2508 - CESTAT MUMBAI
Reversal of Cenvat Credit on inputs lying in stock - Conversion of DTA unit to 100% EOU - Deemed removal of inputs - Held that:- dispute has arisen from the morphing of the manufacturing operation as an Export Oriented Unit. - An infrequent occurrence, it is even more rare for such an occurrence to be accompanied by transfer of raw materials in this manner. That, probably, is one of the reasons for the absence of any reference to such a contingency in the CENVAT Credit Rules, 2002. It is more likely that it was not perceived as having an impact at all on revenue. The transformation does not alter the works undertaken in the unit. Nor is the statutory jurisdiction altered. Eligibility for CENVAT Credit remains unchanged except that, as an Export Oriented Unit, duty-free procurement is an alternative.
Excise duty is fastened on goods and not on the status of the manufacturer; payment of duty and availment of credit of duty so paid is in relation to goods. As long as the goods on which CENVAT Credit has been taken are used in production, revenue is not jeopardized. Instead of procuring goods without payment of duty, the respondent has used already duty neutralized goods for manufacture of export goods. Had the CENVAT Credit been reversed by the erstwhile unit before the conversion, the newly minted Export Oriented Unit would be entitled to avail CENVAT Credit of like amount. These circumstances of revenue neutrality are a clear pointer to the rationale for redundancy of a specific provision for such an event in the CENVAT Credit Rules. - Demand is not sustainable - Decided against the revenue.
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2015 (10) TMI 2491 - CESTAT AHMEDABAD
Demand of duty on the goods transferred to their sister units/ own units by adopting assessable value under Rule 8 of the Valuation Rules, 2000 on CAS 4 certificate - Held that:- We find from the impugned order that Shri Yadagiri R. Avadhoot, Manager-cum-Authorised Signatory of the appellant Company, in his statement dated 24.02.2014 stated that they have cleared the goods to the independent buyers also they have transferred the goods on payment of duty to their sister units on the transaction value of the independent buyer. It is seen that the appellant also placed the decision of the Larger Bench before the adjudicating authority which is duly recorded in the adjudication order. But, the adjudicating authority had not given any finding on the facts and law of the case. So, it is difficult to proceed in the matter as there is no clarity in the findings of the adjudicating authority. We are of the considered view that the matter is required to be remanded back to the adjudicating authority to decide afresh. At this stage, the learned Advocate submits that the part of the demand is after the amendment of Rule 8 of the Valuation Rules and therefore, they are liable to pay duty after the amendment. As we are remanding the matter to the adjudicating authority, he will consider the submission of the learned Advocate.
In view of the above discussions, we set-aside the impugned order. The matter is remanded to the adjudicating authority to decide afresh after considering the facts and law of the case including the decision of Tribunal in the appellants own case. Both the appeals are allowed by way of remand. Applications for early hearing are dismissed as infructuous.
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2015 (10) TMI 2480 - CESTAT NEW DELHI
Entitlement to avail Cenvat Credit on cable tray - treatment to accessory to the capital goods - cable tray procured by the appellant for holding the cable in their factory for manufacturing of cement - Held that:- The cable tray is an accessory which holds the cable and in case of a fault through the cable tray the damage portion of the cable can be found out and same can be repaired. Without this cable tray smooth functioning of the plant is not possible. In these circumstances, thus hold that these cable tray are used to hold the cable for power distribution system.
In these circumstances, the appellant is entitled to take Cenvat Credit on cable trays being an accessory to the capital goods. - Decided in favour of assessee
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2015 (10) TMI 2456 - PUNJAB & HARYANA HIGH COURT
Duty demand u/s 11AB - Whether the appellant is liable to pay interest under Section 11AB of the Act or interest liability is to be determined in terms of clause (v) of Section 88(4) of the Finance Act, 2004 as incorporated by Section 124 of the Finance Act, 2005 - Held that:- Section 88(1) of the 2004 Act retrospectively amended Rule 3(6) of the 2002 Rules providing that AED (GSI) Credit accrued prior to 1.4.2000 could not be used for payment of BED and SED. However, sub-section (4) of Section 88 thereof provided for recovery of AED (GSI) Credit prior to 1.4.2000 which was availed for payment of BED and SED - Section 11A of the Act provides for recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. Section 11AB of the Act as it existed at the relevant time mandates payment of interest on delayed payment of duty.
The relevant date specified in the provision as 10.9.2004 is for the purpose of determining the period of limitation for issuing show cause notice for recovery under Section 11A of the Act and not for levy of interest under Section 11AB of the Act. The appellant had wrongly utilized AED (GSI) Credit pertaining to period prior to 1.4.2000 in 2003 immediately after amendment to Rule 3(6) of 2002 Rules. Thus, the interest liability under Section 11AB of the Act would commence from 1st day of the following month when wrong utilization had taken place till the payment of wrongly utilized credit. - The relevant clause (v) of sub-section (5) thereof stipulates that interest on the amount of credit utilized for paying CENVAT duty shall be @ 13% per annum for the period beginning on and from the day when each time the amount of credit was utilized and ending on 10.9.2004. Though subsection (5) added to Section 88 of 2004 Act starts with non obstante clause and would have an overriding effect on sub-section (4) of Section 88 of 2004 Act, nonetheless it would apply only to those cases where the wrongly utilized AED (GSI) Credit still remains outstanding on the date of the coming into force of Finance Act, 2005. - No substantial question of law arises - Decided against assessee.
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2015 (10) TMI 2455 - PUNJAB & HARYANA HIGH COURT
Constitutional validity of Rule 8(3A) of the 2002 Rules - Disallowance of the benefit of adjustment of CENVAT credit lying unutilised in its account by issuing show cause notices - Held that:- Rule 8(3A) of the 2002 Rules to the extent it contains the words 'without utilizing the CENVAT Credit' is held to be arbitrary and unreasonable and is struck down. In other words, the unamended Rule 8(3A) of 2002 Rules whereby the benefit of CENVAT Credit for all the period till the actual payment was made, stands disallowed in the event of a minor default also is arbitrary and unreasonable.
It may further be noticed that the respondents had themselves realized the unreasonableness of the provisions of Rule 8 (3A) of 2002 Rules and had withdrawn the words 'without utilizing the benefit of CENVAT Credit' and had amended the same w.e.f 11.7.2014 by incorporation that now a penalty shall be imposed at the rate of 1% of the defaulted amount for each month or part thereof calculated from the due date. - Decision in the case of Indsur Global Limited & Precision Fasteners Limited's cases (2014 (12) TMI 585 - GUJARAT HIGH COURT) and Malladi Drugs and Pharmaceuticals Limited's case (2015 (5) TMI 603 - MADRAS HIGH COURT) followed - matter remanded back - Decided in favour of assessee.
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2015 (10) TMI 2454 - UTTARAKHAND HIGH COURT
Denial of CENVAT Credit - Inappropriate documents - Held that:- Tribunal pointed out that the appellant has not shown any other challan, on the basis whereof that credit could be claimed and, in particular, before the amendment was made in Rule 9(1)(e) of the Cenvat Credit Rules, 2004. In the grounds of appeal, appellant has not indicated, which challan could be stated to be appropriate challan to obtain such credit. - Decided against Revenue.
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2015 (10) TMI 2453 - CESTAT MUMBAI
CENVAT Credit - Whether appellant is required to debit an amount of Cenvat Credit proportional to the utilisation of steam in non-productive use in canteen and laundry or otherwise - Held that:- Cenvat Credit on furnace oil is eligible to be availed by the appellant as they are utilising the steam produced by using furnace oil for manufacturing of final products in factory premises. It is also undisputed that some part of the steam is utilised in canteen and laundry. - Requirement of a canteen in the factory is statutorily mandated in the factories act, the cleaning of the utensils in the canteen for providing hygienic food cannot be disputed by any one. Again, using of clean uniform in the course of manufacturing of final products cannot also be disputed as unwanted expenses. On this factual matrix, we find that the steam which is used in the factory premises is in a way related to manufacturing of final products. - In the said case of Indo Rama(2007 (7) TMI 315 - HIGH COURT OF JUDICATURE AT BOMBAY) their Lordships were considering the use of electricity generated in the factory and the above observations were made while denying the proportionate Cenvat Credit on the fuel used in that portion of electricity which is used for lighting the residential quarters. We find that the said observations will apply in the case in hand as it is undisputed that the canteen services and the laundry service is used within the factory and in a way related to manufacturing activity - impugned orders are unsustainable and liable to be set aside and - Decided in favour of assessee.
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2015 (10) TMI 2452 - CESTAT NEW DELHI
Disallowance of CENVAT Credit - credit on the quantity of input/coal which was short due to washing of coal in Coal Washery - Held that:- Washing of coal is an indispensable process for using the coal in the manufacture of Sponge Iron. The objection raised is that only lesser quantity of coal after wash is received in the factory and proportionate credit on such loss cannot be allowed to the appellant. The loss of coal during the process of washing is inevitable and the shortage caused is not in the hands of the appellant - Undeniably the quantity of 2,182,910 MT of coal was short due to washing loss which occurred at the job worker s end during the process of coal washing. The Board s Circular No. 267/136/87-CX-8, dated 15.1.1988 is with regard to somewhat similar loss of material as waste which occurs during the process of manufacture. The Board has clarified that credit cannot be denied on the ground that part of inputs is contained in the slag and other invisible losses. In Bharat Radiators Ltd case (2002 (3) TMI 685 - CEGAT, MUMBAI) it was held that denial of credit on burning loss was not sustainable. Since the issue stands settled by the above judgments, following the dictum laid in the above judgments I hold that the denial of credit is unjustified. - Decided in favour of assessee.
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2015 (10) TMI 2451 - CESTAT AHMEDABAD
Waiver of pre deposit - Section 35F - Mandatory pre deposit - Held that:- Appeal and stay application were not pending before the Tribunal prior to the amendment of Section 35F of the Act. It is also noted that in the present case, the impugned order was passed after amendment. The only stand of the Learned Counsel of the applicant is that the Show Cause Notice was issued prior to amendment and therefore, they are not covered by the amended section the 35F of the Act. - there is a clear direction of the legislature that the Tribunal shall not entertain any appeal unless the appellant has deposited the amount as specified therein in respect of appeal filed after amendment. In our considered view, the applicant is required to furnish the evidence of the mandatory deposit as required under amended section 35F of the Act. - merit in the application filed by the applicant. However, considering the facts and circumstances of the case, we direct the applicant to furnish proof of mandatory as required under Section 35F as amended by the Act, within two weeks from today to the Registry of this Tribunal. Otherwise, the Registry is directed to return the appeal as the Tribunal has no power to entertain the appeal. - in view of the amendment of the Section 35F of the Act, the Stay application is not maintainable. - Decided against assessee.
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2015 (10) TMI 2450 - CESTAT CHENNAI
Reversal of CENVAT Credit - Exemption of duty on such pipes in terms of Notification No.6/2002 - Appellant contended that notification does not require any reversal of Cenvat credit on the inputs or work-in-progress or finished goods lying in stock on the date on which exemption was granted. - Held that:- It has not availed any exemption either on value-based or quantity-based criteria for clearance in a financial year. Therefore, this rules out applicability of Rule 9 (2) of Cenvat Credit Rules, 2002. Once the applicability of Rule 9 (2) is ruled out, there is no further case of Revenue and if unutilised credit is on record under Rule 9 (1) prior to 04.04.2002 and remaining unutilised, there is a modality prescribed by law for utilisation. The modality prescribed by Rule 9 (2) only. Once Rule 9 (2) of Cenvat Credit Rules, 2002 is not applicable even Rule 9 (1) has no significance.
Notification did not prescribe any value-based or quantity-based exemption. There is no case of Revenue to the contrary. Therefore, Rule (2) of Rule 9 of Cenvat Credit Rules, 2004 is not applicable - If Cenvat credit is taken validy, which is not disputed by the department, in absence of one-to-one relationship between input or output or output service, there cannot be exercise of power by executive to ask the assessee to revert such Cenvat credit. Following this ratio, the order of authority below is set aside - Decided in favour of assessee.
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2015 (10) TMI 2449 - CESTAT AHMEDABAD
Fraudulent Availment of CENVAT Credit - Bogus invoices - Held that:- Appellant M/s. Mansi Industries is also party in the case of M/s. Akik Dyechem & Others (2013 (9) TMI 415 - CESTAT AHMEDABAD). The present proceeding is related with investigation in the case of M/s. Akik Dyechem & Others (supra). In that case, the investigation taken up by the Revenue revealed that the premises registered for manufacture of Aluminium Ingots did not have any electricity connection, only one manually operated furnace which was also being operated by a different person during the period from 1997 onwards. The Tribunal upheld the adjudication order. In the present case, we find that the proprietor of M/s. Itisha Alu-Chem Industries had admitted that they have issued invoices to the appellant to facilitate for availment of CENVAT credit. It is clearly evident that the invoices were fake and therefore, the appellant is not eligible to avail credit on the fake invoices. - appellant is given option to pay penalty 25% of the duty alongwith entire amount of duty and interest within 30 days from the date of communication of the order - Decided partly in favour of assessee.
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2015 (10) TMI 2448 - CESTAT AHMEDABAD
Penalty u/s 11AC - Undervaluation of goods - Held that:- As the penalty was imposed under Section 11AC of the Act, we do not find that there is any requirement of impose penalty under Rule 173Q of the erstwhile Central Excise Rules. So, the contention of the learned Authorised Representative on this issue cannot be accepted. The assessee should be allowed to pay penalty 25% of the duty alongwith entire amount of duty and interest, within 30days from the communication of this order under Section 11AC. - appeals filed by the Revenue are allowed to the extent the penalty imposed under Section 11AC is enhanced to equal amount of duty. The assessees are entitled to pay the penalty 25% of the duty alongwith entire amount of duty and interest within 30 days from the date of communication of this order - Decided partly in favour of assessee.
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