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Central Excise - Case Laws
Showing 61 to 80 of 1051 Records
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2015 (10) TMI 2447 - CESTAT BANGALORE
Classification of Resin Bonded Bamboo Mats with Veneer in between - Classification under Chapter 4410.90 or under Chapter 4408.90 - Held that:- On going through the earlier order of the Tribunal we note that a clear finding stands given that in terms of Chapter Note 6 the goods would be classified properly under heading 4410. The Revenues contention is that the Chapter Note 6 relied upon by the assessee was not in existence during the period 1986-87 i.e. the period involved in the present appeal. The same came into existence w.e.f. 1997. As such it is their contention that the Tribunal relied upon a wrong Chapter Note. - Since order of Tribunal is not challenged - it becomes binding for the lower authorities to follow the Tribunals order - Decided against Revenue.
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2015 (10) TMI 2404 - ALLAHABAD HIGH COURT
MODVAT Credit - Availment on HSD - Held that:- Rule 57A was substituted by notification dated 01.03.1997, but thereuneder also we do not find any substantial alteration so as to exclude HSD from being treated as 'input' and to attract benefit of MODVAT credit. - Explanation to Rule 57A (Clause d), clearly takes within its ambit 'inputs' used for generating electricity which is used within the factory of production for manufacture of final products or for any other product. It is not the case of Revenue that HSD, used in the case in hand by assessee for generating electricity, is not used within the factory of production for manufacture of final products or HSD is not used in generation of such electricity. The exclusion clause, as it stood in explanation does not bring within its ambit HSD used for generation of electricity. - Decided in favour of assessee.
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2015 (10) TMI 2403 - CESTAT MUMBAI
Penalty under Rule 26 - fraudulent availment of CENVAT credit - Fraudulent rebate claim - Confiscation of goods - Held that:- so called merchant exporters or Rule 12B manufacturers have dealt with the goods inasmuch as they purchased the goods from market and in order to claim the rebate/or avail CENVAT credit they approached Muni Group of Companies and purchased certain invoices from them so as to fraudulently show as if the goods were purchased from Muni Group of Companies on the invoices of Muni Group and thereafter exported or used in processing. Thus, there are excisable goods which are purported to be cleared on the invoice of Muni Group. In all cases, the investigations have indicated that the goods were never transported from Muni Group of Companies to the appellants or to the port of export. Investigations revealed that the goods were lifted from some dealers in Surat, etc. Further, investigations indicate that some payments were made to Muni Group of Companies through account payee cheques. However, immediately, thereafter, Muni Group of Companies have issued cheques in the name of some other entities. These cheques were, in turn got discounted by the merchant exporter/appellants. In some cases, the amounts were paid by crossed bearer cheques to Muni Group of Companies. However, these cheques were, in reality, not deposited in the accounts of Muni Group of Companies, but were deposited either in the name of certain dealers or got discounted from various bill discounters/shroffs. In nutshell, the money which was purported to have been paid to Muni Group of Companies for purchase of material was not paid to them but either was taken back by the appellants-merchant exporters, or in some cases, some amount was paid to certain dealers in fabric.
Invoices of Muni Group of Companies and the goods purported to be covered by such invoices were dealt by the merchant exporter-appellants. There can be no doubt, that these goods are liable to confiscation under Rule 25(1)(d) of the Central Excise Act, 1994. In view of the above said position, there can be no doubt that penalty is imposable under Rule 26 on the merchant exporter/manufacturer under Rule 12B.
Goods procured from some other sources would be non-duty paid goods otherwise, there was no need for them to get the invoices from Muni Group of Companies. The findings recorded above in respect of merchant exporters equally be applicable in the case of Rule 12B manufacturers and, therefore, penalty is imposable. Thus, these are the cases of fraud wherein the appellants as also Muni Group of Companies were equally involved and would be equally benefitted by getting the money from the government exchequer, in the name of rebate even though in reality, no duty was paid in the scheme of the above fraud, it was fraudulently shown that the duty was paid and the appellants or Muni of Group of Companies would be able to get refund of the duty in the form of rebate which thereafter will be distributed among themselves.
Penalty on merchant exporters is allowed or dismissed on the basis of their involvement in fraudulent transaction. - Appeal disposed of.
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2015 (10) TMI 2402 - CESTAT MUMBAI
Valuation of goods - Undervaluation of goods - Job works - conversion of DTA unit into EOU unit - Benefit of notification 23/2003 - Held that:- During investigations of contract between one party and the respondents was recovered. In terms of the contract with M/s Sulakhi Limited it is clear that it is valid for 10 years from 1 may 2003 as per clause 2.1 and 11.2 of the agreement. It prescribes in paragraph 4 that the material supplied by the respondents to the processor would be the property of the respondent, proper records of the raw materials will be made and reported to the respondents by the processes. It described in paragraph 4 and 5 that the product will be of a particular specification, failing which the processor has to pay damages. The agreement also fixes the processing charges for the job. There was however, no such agreement recovered in respect of M/s Sahastra and M/s Sangadeep. During the examination of various employees of the respondent and one of the processors following has emerged.
From the statements recorded it is apparent that the price at which spent goods were being cleared from the respondent s premises was linked to the price at which the processed goods were to be sold back to the respondents. This is clear from the statements recorded and from the terms of the contract. In the circumstances it cannot be said that the price negotiated between the respondent and the processors was price determined on an arm s length. The price of spent goods was directly linked to the price of the processed goods received back from the Processor. There may or may not have been a written contract between the parties to the contract but there was a clear understanding. Therefore in addition to the sale by the respondents to the processor not being an international transaction, it was also not at arm s length. - The Commissioner has failed to appreciate that the transaction in case of a DTA sale is a local transaction price whereas in case of clearance of an EOU unit the assessable value should be the price in the course of International trade.
Having arrived at the conclusion that the domestic transaction value is to be accepted as the assessable value, due consideration has not been given to the arguments regarding alternate method of valuation in case the domestic transaction value is not accepted as assessable value. The respondents have raised many issues, like using common processing charges for calculations, regarding the method adopted in the show cause notice which have not been answered in the order of Commissioner as he has accepted the domestic sale price as the assessable value. - Cenvat credit rules limit the amount of credit available in respect of duty paid by EOU and therefore credit of entire duty is not available to the processor and hence it is not the revenue neutral situation. From the above it is clear that it is not a case of revenue neutral situation and Commissioners observation regarding with any neutrality is misplaced.
Extended period has been invoked on account of recovery of the contract between the respondents and one of the processor’s in the year 2008. The said agreement was not in the knowledge of the revenue and the terms of transaction between the respondents and the processor’s were not in the knowledge of the Department and were not declared to the Department. I find that the terms between the respondents and it processor’s are of extreme importance in determining the assessable value and therefore non-consideration and nondisclosure of the said terms amounts to misdeclaration and suppression. - impugned order is set aside and the matter is remanded to adjudicating authority for ascertainment of the assessable value after giving due consideration to the arguments of the respondent in this regard. - Decided in favour of assessee.
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2015 (10) TMI 2401 - CESTAT MUMBAI
CENVAT Credit - credit of input services distributed by the Input Service Distributor - Jurisdiction - appellant submitted that show cause notice should have been issued to ISD located at Thane and not to them (unit availing credit). - Held that:- Distinction between the location of ISD and that of a manufacturing unit itself is immaterial. Credit is finally availed and utilised by the manufacturing unit. What learned counsel is trying to say is that show cause notice should be issued to head as hand has acted as per the direction of head. In our view, as rightly pointed out by learned AR, cause of action stands with availment and utilization of credit at the manufacturing unit. Of course, ISD and manufacturing unit are integrally connected, and both of them unitedly has to resolve the issue with the department. - Decided against the assessee.
Input service distributor is not providing either any service or manufacturing any goods. There is no requirement of assessment or self-assessment. Input service distributor is only receiving the invoices of service tax paid which in turn are being distributed to different manufacturing units/service providing units. ISD per se does not value, classify or decide the rate of duty relating to the services so received. Therefore there is no question of his assessing such services. All that he does is distributing the same.
Role of ISD is very different than that of a registered dealer and it is because of this reason that there is a separate return in case of a registered dealer which is not so in case of ISD. In case of ISD, the normal service tax return has a column for the distribution of credit of service tax and that is sufficient to ensure that the distributed service tax is not more than that shown in the invoices. - All that input service distributor is to certify in clause (b) that they have distributed cenvat credit correctly. Based upon the heading given in the return which is a common heading for service provider as well as input service distributor, it cannot be claimed that input service distributor is making self assessment and that self assessment is required to be challenged. No rule provides for assessment/self-assessment by ISD. In view of the said position, we find that the claim of the learned counsel is required to be out rightly rejected and we accordingly do so.
In case of availment of cenvat credit the primary responsibility that the credit has been correctly taken, is on the manufacturer or availer of cenvat credit as per Rule 9(5) and 9(6). Rule 9(5) very clearly provides that the burden or proof regarding admissibility of the cenvat credit shall lie upon the manufacturer or provider of output service taking such credit. In view of this position, we have no hesitation in holding that the extended period of limitation has been correctly invoked. We also note the judgment of hon’ble Madras High Court in the case of F.L. Smidth Pvt. Ltd. (2014 (12) TMI 699 - MADRAS HIGH COURT). - Demand with penalty confirmed - Decided against assessee.
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2015 (10) TMI 2400 - CESTAT MUMBAI
Manufacturing activity or not - preparation of cutlery pack for airlines - they put a card showing their name on the cutlery pack so that it is known to the passengers that the catering is by them - items like dal, rice, curry, etc. which are separately packed. - In addition to these items, appellants also bought other items like butter, jam, pickles, etc. manufactured by other manufacturers which are excise duty-paid, if applicable. They put such items on the tray, along with bread, etc. and these are handed over to the airlines in the aircraft. In the aircraft, the heated items are also put in such trays and served to the passengers. - Invocation of extended period of limitation.
Held that:- just because particular goods are classifiable under a particular heading, it will not automatically mean that the activities carried out by an appellant amounts to manufacture. It is for the Revenue to prove that the activity carried out by the appellant amount to manufacture and it satisfies the criteria prescribed by the hon ble Supreme Court, viz. new name, character and use. In our view, adjudicating authority has not given any findings on this issue.
Extended period of limitation - Held that:- the appellants were registered with the department either for payment of excise duty or for payment of service tax. Some of the appellants were manufacturing cake pastries, chocolates and were regularly paying excise duty. Further, it is very well known that the appellants are engaged in providing catering services to the various airlines. In fact, catering to the airline is their main business. Moreover, no such caterer was paying excise duty on meals. In these facts, it is difficult to say that there was suppression of facts or willful misstatement of facts or intention to evade duty.
Whether goods are branded goods - Held that:- Passengers understand that the catering is being done by the appellants. Thus, the meals get connected with the appellants and, therefore, in our considered view, the goods being supplied are branded goods and we find that, almost identical situation existed in the case of Australian Food India (P) Ltd. (2013 (1) TMI 330 - SUPREME COURT) decided by the hon’ble Supreme Court -
For the first issue whether the activity amounts to manufacture or not, we would have normally remanded the matter to the Commissioner for examining the same and give his finding. In the facts and circumstances of the case, in our view, the extended period of limitation is not invokable, we therefore do not consider it necessary to remand the matter to the Commissioner on the issue of manufacture. - demands are beyond the normal period of limitation - Decided in favour of assessee.
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2015 (10) TMI 2399 - CESTAT CHENNAI
Demand of differential duty - valuation - whether the amount received as bonus by the appellant-assessee from its buyers for the performance of converter bricks/refractory bricks would be included in the assessable value of the refractory bricks sold by the appellant-assessee - Held that:- Refractory bricks were sold by the appellant-assessee based upon the terms and conditions as envisaged in the purchase orders. In the purchase order it is specifically stipulated for performance guaranteed bonus which indicated that the appellant-assessee should stand guarantee for the number of heat per set as per the agreements and bonus shall be awarded if the life achieved is above guaranteed heats and there is a penalty clause also that if the refractory bricks do not sustain the guaranteed heats then penalty would be recovered from the appellant-assessee. We find that the issue is no longer res integra as this Tribunal in the cases of MPR Refractories Ltd. Vs. CCE, Hyderabad (2009 (4) TMI 829 - CESTAT BANGALORE), CCE, Chennai Vs. VRW Refractories (2008 (7) TMI 647 - CESTAT, CHENNAI), Jalan Refractories (P) Ltd. Vs. CCE, Jaipur (2000 (9) TMI 192 - CEGAT, CHENNAI) and Indian Telehpone Industries Vs. CCE, Cochin (2004 (8) TMI 210 - CESTAT, BANGALORE), has consistently held that subsequent dealings between the assessee and the buyer on account of performance or otherwise of the goods is not of any concern in regard to the sale price of the goods at the time of removal. We are, therefore, of the opinion that there is no justification for treating the bonus amount as part of the price of the goods and demanding duty on the basis of bonus received from the buyers for better performance of the bricks was not includible in the assessable value of the refractory bricks. - Impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 2398 - CESTAT BANGALORE
Manufacture - captive consumption - Department contends that the UDMH manufactured by the appellant and used for mixing with HH in the ratio of 75:25 has to be treated as an intermediary product and since it has been used in the manufacture of an exempted final product, the benefit of exemption notification No.67/95 is not available - Held that:- Admittedly UH25 is manufactured by mixing 75% of UDMH and 25% of HH in mixing container and thereafter thoroughly stirred for 90 minutes to meet the required density and specifications. According to the decision of the Hon ble Supreme Court, to call a process as manufacture it should result in emergence of a new product with distinct name, character and use. In this case there is no doubt that ISRO has given a new name UH25. The question that arises is whether it has attained a different character and is for a different use. As regards use, there is no dispute that both UDMH and HH25 are used for the same purpose viz., as a rocket propellant or fuel.
In the absence of any evidence to show that there is a change in the character of the product and use of the product, we cannot say that Department has been able to show that a new product, as per the definition of manufacture laid down by the Hon’ble Supreme Court, has emerged. In such a situation, when by mixing UDMH and HH a new product is not emerging, it cannot be said that UDMH has been captively consumed in the manufacture of a product which is exempted and therefore duty liability has to be discharged on UDMH manufactured by the appellants and used within the factory. - appellants have been able to show that there is no manufacture and no new product is emerging by mixing UDMH and HH and therefore the stand taken by the Revenue and the impugned order are not sustainable. - Decided in favour of assessee.
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2015 (10) TMI 2397 - CESTAT NEW DELHI
CENVAT Credit - use of Capital goods in different premises - Suppression of facts - Held that:- The appellant shifted the machine to another premises near to the factory and returned the same within 180 days. The movement of machine as well as semi finished material from the factory and finished material from the rented premises are by challans. According to the appellant, the shifting was done only due to paucity of space, and that no job work was done. The Counsel for appellant submitted that the movement of goods on challans were done as for job work though no job work was done. - appellant has taken semi finished goods outside their factory premises for completion of manufacturing process due to shortage of space in the factory, and the finishing work of stitching and packing is being done by the appellant without hiring or engaging another person for doing the said work. That as no job worker is involved the provisions of Rule (5) of Cenvat Credit Rules do not apply. - The fact that machine was used in a premises near to the factory is not disputed. So also it was used for connected process of manufacture. The process in these premises was carried out by the appellant themselves. The machine was used by appellants for the production of final products. Thus the activity of appellants in using the machine (capital goods) can be said to be part of its manufacturing activities of final products in its registered factory premises. There is no justification for denying credit. - there is no suppression of facts on the part of the appellant as he intimated the department about removal of machine by proper documents, I am of the view that the cenvat credit cannot be denied to the appellant. - Decided in favour of assessee.
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2015 (10) TMI 2396 - CESTAT NEW DELHI
Determination of correct assessable value - Inclusion of commission paid and discounts given - Whether for the period prior to 1.7.2000 when the price on which the goods are generally sold is the correct assessable value or not - Held that:- As the issue has been settled by Hon ble Apex Court in the decision of Elgi Equipments Ltd. (2007 (8) TMI 20 - SUPREME COURT OF INDIA), therefore we hold that price at which goods have been ultimately sold to M/s. PDV shall be the assessable value. In these terms, demands for the period January, 1986 to August, 1987 as confirmed by way of impugned order is set aside. Further, we hold that for the period September, 1987 to November, 1988, the price at which the M/s. RMPL sold the goods to M/s. PDV is the assessable value. In these terms, we have decided the assessable value. As there were no malafide on the part of M/s. RFI for short payment of duty, the penalty is not imposable. - in this case, penalty of ₹ 25,000/- has been imposed on M/s. RMPL. As M/s. RMPL is an artificial person and in the facts of circumstances of the case, malafides against M/s. RMPL are not stand proved as they have conceded that the price at which M/s. RMPL sold the goods to M/s. PDV is the correct assessable value. - Decided in favour of assessee.
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2015 (10) TMI 2395 - CESTAT BANGALORE
CENVAT Credit - appellant was maintaining a common cenvatable register in respect of the inputs used in the manufacture of PD pumps as also in the manufacture of spare parts - spare parts manufactured by them were being cleared on payment of duty by utilizing the CENVAT credit - held that:- there is no dispute on the factual position. Admittedly during the period in question the appellant availed the credit in respect of common inputs used in the manufacture of dutiable as also exempted final product. They initially reversed the CENVAT credit relatable to the inputs used in the manufacture of the exempted final product but subsequently they reversed the entire credit, even the one which was relatable to the inputs used in the manufacture of spare parts. - Impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 2354 - CESTAT AHMEDABAD
Duty demand - Clandestine removal and manufacture of goods - Allegation based predominantly on the basis of 62 reconstructed copies of delivery challans-cum-proforma invoices - held that:- Reconstructed challans were not recovered from the premises of any of the appellants. First Appellate authority in his order has also observed that nearly 20 of these reconstructed documents are fake or incorrect and accordingly dropped demand of ₹ 10,69,486/- out of total demand. Further, first Appellate Authority carried out detailed inspection during the proceedings before him and observed in Para 5.4.2 of the OIA dt 29.7.2011 that standing alone these documents have no evidentiary value as these are not found at the factory or recovered during the search. Regarding admissibility of documents whose origin is not disclosed it has been held by CESTAT, Delhi, in the case of Pan Parag India Ltd vs CCE [2012 (6) TMI 100 - CESTAT, NEW DELHI] that documents whose origin is not known cannot be relied upon for establishing a case. Once the author of the documents is uncertain or documents are unsigned then the same cannot be put to test and scrutiny of an aggrieved person. Cross examination of the person who created these documents cannot be allowed to the appellants, as the source has no been identified.
It has also not been brought on record as to from where main appellant procured the raw-material for manufacture of clandestinely cleared goods as held by Allahabad High Court in the case of Continental Cement Co Vs UOI [2014 (9) TMI 243 - ALLAHABAD HIGH COURT]. No Confirmatory statements of the buyers are available to corroborate the authenticity of 62 reconstructed documents and the supply of finished goods contained therein. All such persons have stated that they have not received any goods against the reconstructed invoices. - 62 reconstructed challans-cum-proforma invoices cannot be relied upon for fixing the case of clandestine manufacture and clearance of finished goods against the appellants. No variation in the stock of raw-materials/finished goods was noticed in the factory of the main appellant during the search. No finished goods and cash have been seized anywhere in transit or in the premises of the buyers who disowned having received any such goods.
No investigation has been done in order to refute the claim of the main appellant, by recording the statement of transporter or the supplier of trader from whom the goods have been claimed to be purchased from JBMC. It is a well established law that documentary evidence will prevail over an oral evidence especially in these proceedings where cross examination of such witness is not provided. - documentary evidence of DXN having emphatically held out through their marketing agency (Daehsan) and the latter s stockists/distributors before the general public that their products viz. RG & GL capsules were strictly herbal food supplements and recommended as drugs stands unrebutted and overrides an oral evidence to the contra given by any Daehsan functionary or stockist/distributor in cross-examination. It is trite law that documentary evidence would prevail over oral evidence. - Decided in favour of assessee.
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2015 (10) TMI 2353 - CESTAT BANGALORE
Refund claim - CENVAT Credit - denial of Cenvat credit refund on the ground that supply of goods from one 100% EOU to another 100% EOU will not be considered as 'physical export' - whether, the time limit prescribed in Section 11B of the Act would be applicable for refund of accumulated Cenvat credit in terms of Rule 5 of the Rules: and, supply of goods between two EOUs, which is recognized as 'deemed export' under the FTP, would be considered as 'physical export'. for the purpose of getting the benefit of refund under Rule 5 of the said rules.
Held that:- In exercise of the powers conferred by Rule 5 of the Rules, the Central Government vide Notification No. 5/2006-C.E.(N.T.) dated 14.3.2006 prescribed the conditions/limitations for claiming refund of service tax by a manufacturer. In Appendix No. 6 of the said notification, it has been provided that refund application in Form A is to be filed with the jurisdictional Central Excise authorities before the expiry of period specified in Section 11B of the Central Excise Act, 1994 - The term 'relevant date' has neither been defined in Rule 5 of the Rules nor in the notification issued there under. Further, the said term defined in Section 11B of the Act is not compatible with the situation envisaged in the aforesaid rule. Therefore, there was ambiguity in interpreting the importance/significance of the term 'relevant date' in context with the said rule. The Hon'ble High Court of Madras in the case of GTN Engineering (2011 (8) TMI 960 - MADRAS HIGH COURT), upon analysis of the provisions of Rule 5 of the Rules, Notification dated 14.03.2006 and Section 11B of the Act, have held that the date on which the export of the goods was made and for such goods, refund of Cenvat credit is claimed, should be construed as the relevant date for the purpose of Rule 5 of the Cenvat Credit Rules.
Finding recorded in the impugned order that physical export is not to be equated with deemed export and thus, the appellant is not entitled for refund of Cenvat credit in terms of Rule 5 of Rules, in my considered opinion, is not legal and proper, in view of the judgment of Hon'ble Gujarat High Court in the case of Shilpa Copper (2010 (2) TMI 711 - GUJARAT HIGH COURT ). - impugned order so far as to the rejection of refund claim on the ground of being time barred under Section 11B of the Act is sustained. The rejection of refund claim on the ground that supply of goods between two EOUs, is not eligible for refund being a 'deemed export' is set aside - Decided partly in favour of assessee.
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2015 (10) TMI 2352 - CESTAT MUMBAI
Benefit of concessional rate of duty under notification 8/99 dated to 8.2.99 - Non production of clarification on whose basis exemption claimed - Held that:- so far as availability of exemption is concerned the matter is settled by the decision of Hon ble Supreme Court in case of Modi rubber Limited (1986 (8) TMI 60 - SUPREME COURT OF INDIA) in favour of the revenue. We also find that so far as invocation of provisions relating to penalty are concerned the law has been laid down by Hon ble Supreme Court in case of Orient fabrics (2003 (11) TMI 75 - SUPREME COURT OF INDIA) against the revenue. In view above we uphold the demand of duty and set aside the imposition of penalty. - The 2nd appeal deals with adjustment of the above demand and penalty against a sanctioned refund. In view of the vacation of penalty the appellant s succeed in their appeal insofar as adjustment of penalty against the sanction of refund is concerned. They ve become entitled to refund of the penalty amount adjusted earlier. - Appeal disposed of.
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2015 (10) TMI 2351 - CESTAT NEW DELHI
Duty demand - Clandestine removal of goods - Demand on the basis of electricity consumption - Held that:- Admittedly the search was conducted in the factory premises of the assessee on 30.3.2007 and certain records were seized which pertained for the period January, 2007 to March, 2007. The departmental officers without doing any other exercise, compared the clearance during that period for electricity consumption and made the basis to determine the manufacturing capacity of the plant and concluded that M/s. Satguru has cleared 18000 MT of cement without payment of duty in that period. Consequently, for the impugned period on the basis of the formula for manufacture of 1 MT of cement, how much electricity is consumed the whole demand is proposed. Infact in assessee s own case for the earlier period, this Tribunal vide Order No.52006 52008/2015 dated 25.06.2015, this Tribunal has held that demand on the basis of electricity consumption is not sustainable - demand on the basis of electricity consumption to manufacturer the cement for whole of the period is not sustainable. We further found that during the course of investigation, certain documents were resumed and on the basis of those documents, electricity consumption was derived, the same was made basis of demand which is set aside. - only basis for the demand of duty is electricity consumption but no comments have been made by the adjudicating authority to demand on the basis of documents seized during the course of investigation - Matter remanded back - Decided in favour of Revenue.
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2015 (10) TMI 2350 - CESTAT NEW DELHI
Imposition of penalty - Penalty on co-noticees - if the main noticee discharges the duty liability alongwith interest and 25% penalty, whether the proceedings would come to an end in regard to other co-notices also - Held that:- in Abir Steel Rolling Mills case [2013 (7) TMI 405 - CESTAT NEW DELHI], the Tribunal has taken the view that if the proceedings have been concluded against the main notice, as provided in these provisions then no further proceedings can be continued against co-noticees. - The interpretation by the Tribunal of the words "such person" and "other persons" made in Abir Steel Rolling Mills case is more agreeable to me. The Tribunal in that case, has not only considered that when the proceedings against the manufacturer/assessee stand concluded on payment of disputed amount of duty plus interest and 25% of the duty as penalty, there would be no sense in continuing the proceedings for imposition of penalty under Rule 26 against other persons like traders who had purchased the goods, transporters who had transported the goods cleared by manufacturer/assessee, the directors/employees of the manufacturer/assessee company. The Tribunal has discussed the category of persons that would fall into the group 'other persons'. Further the Board's Circular No. 831/08/06-EX dated 26.7.2006 has also been considered. I concur with the ratio laid in Abir Steel Rolling Mills case, which is squarely applicable to the instant case, the facts in issue being similar. - penalty imposed on the appellants is unsustainable. The same is set aside - Decided in favour of assessee.
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2015 (10) TMI 2349 - CESTAT MUMBAI
Manufacture - converting H.R. Coils/strips into C.R. Strips - whether the activity undertaken by the appellants amounts to manufacture or not as per Section 2(f) of the Central Excise Act, 1944 - Held that:- On the basis of the records available, the ld. Commissioner has not given independent finding thereon, who is at liberty to examine the relevant records and thereafter to arrive at a decision whether the activities undertaken by the appellant amounts to manufacture or not. - Commissioner has made an observation that the appellant has not provided co-relation of the entries in diaryA-38. Therefore, the co-relation statement cannot be relied upon. On the contrary, the contention of the ld. Counsel is that he has supplied the co-relation statement and corresponding invoices to the adjudicating authority but the same has not been considered, this fact is to be examined by the adjudicating authority. - As the impugned order has not complied with the directions of the Hon'ble Apex Court, moreover, have also not examined the co-relation of the diary A-38 with the corresponding invoices, therefore, the matter needs examination at the end of the adjudicating authority. Therefore, we set aside the impugned order and remand the matter back to the adjudicating authority - Decided in favour of assessee.
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2015 (10) TMI 2348 - CESTAT MUMBAI
Refund of duty paid earlier on export of goods - Exemption of Basic Excise Duty in terms of Notification No. 6/2002-CE as amended by Notification No. 23/2004-CE dated 8.7.2004 - original adjudicating authority rejected the refund claims on the grounds that the appellants were not eligible for availing CENVAT Credit for inputs used in the final product in terms of Rule 6(1) of the Cenvat Credit Rules - held that:- Issue in the case of Jolly Board Ltd. (2014 (3) TMI 124 - CESTAT MUMBAI) is different than the issue in the present appeal. Further, I find that the learned Commissioner (Appeals) has admitted that no tax was payable when the tractor was cleared in the DTA for testing purpose and the same could have been done by adopting the process of Rule 4(5)(a) of the Cenvat Credit Rules. Accordingly, even when the tax is paid under mistake by way of reversal of CENVAT Credit, the same becomes refundable on the subsequent export of the goods by the assessee. Hence, in view of the fact that the same tractors were admittedly brought back in the factory of the appellant and after testing etc. were cleared for export under Bond and by virtue of Rule 6(6)(v) of Cenvat Credit Rules the provisions of sub-rule (i), (ii), (iii) & (iv) of Rule 6 are inapplicable. Accordingly, the amounted deposited become refundable - Impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 2347 - CESTAT MUMBAI
Benefit of reduced penalty - whether the Commissioner after holding the respondents guilty of committing violations of exemption notifications could have imposed penalty lesser than that provided in 114A of the Customs Act and 11AC of the Central Excise Act - Held that:- period in dispute in this case pertains to November 1990 to February 1996. It is also not in dispute that the provisions of 114A of the Customs Act, 1962 and 11AC of the Excise Act, 1944 came into force with effect from 20/09/1996. Further both these provisions have not been specifically made applicable retrospectively. The judgements cited by the learned AR in the case of Pothys Cotton Products (P) Ltd. (2014 (12) TMI 690 - MADRAS HIGH COURT) and KRM International Ltd. (2014 (8) TMI 11 - MADRAS HIGH COURT) are not applicable in the facts and circumstances of the case as the period involved in this case is from November 1990 to February 1996, when the provisions of Sections 114A and 11AC of the Customs Act were not in force. Both the penalty provisions are applicable prospectively and not retrospectively as held by the Tribunal in the case of Lakshi Packaging (P) Ltd. (1997 (4) TMI 216 - CEGAT, MADRAS). - there is no merit in the Revenue s appeal - Decided against Revenue.
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2015 (10) TMI 2346 - CESTAT NEW DELHI
Claim of ownership of confiscated goods - appellant is claiming to be the owner of plant and machinery confiscated in the impugned order on the basis of the litigation between RIL and the appellant which was decided in arbitration on 14.03.2012, consequent to the arbitration proceedings, the appellant claims to be owner of the plant and machinery - Held that:- The respondent are claiming that said plant and machinery has been confiscated and there ownership rest with Government of India. Although this Tribunal has powers to entertain the appeals against the order passed by Commissioner of Central Excise / Commissioner (A) under Central Excise Act but this Tribunal has no jurisdiction to decide the ownership of the goods. Moreover, in the impugned order only plant and machinery owned by M/s. RIL has been confiscated. If appellant is claiming to be the owner of said plant and machinery it is a dispute of civil in nature and this Tribunal is not the proper forum to seek remedy for that. Moreover, it is the claim of the appellant in their written submission that they have approached to the respondent on 30.09.2011 first time to seek the permission of removal of its plant and machinery it is also a claim of the appellant that they were not knowing that any departmental proceedings are pending against RIL by issuance of the show cause notice dated 20.03.2000 which was adjudicated vide order dated 20.03.2007. When the proceedings of the respondent against M/s. RIL were not known to the appellant, question arises how the appellant came to know about the confiscation of the plant and machinery. Further, the appellant has written to the respondent to seek permission on 30.09.2011 why the appellant had not brought this fact in the knowledge of the Arbitrator. This act of the appellant creates doubts on the bonafides of the appellant. Therefore, the appellant has not come with clear hands. - Decided against assessee.
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