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Central Excise - Case Laws
Showing 361 to 375 of 375 Records
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2015 (11) TMI 89 - CESTAT MUMBAI
Denial of CENVAT Credit - credit was availed such as Steel Plates, Foundation Bolt, HR Steel Coils, M.S. Angles, C.R. Sheets, Aluminum Coils & Aluminum Sheets used in the fabrication and erection of storage tanks - Capital goods - Held that:- Steel materials were used for fabrication and erection of storage tank within the factory of the appellant. The said storage tanks are undisputedly used for the storage of input finished goods and chemicals plant which is further used in the manufacture of the final product. In the chemical plant the storage tank is vital part of the entire plant and machinery. Therefore, in my view storage tank are capital goods. - Cenvat credit in respect of input used in fabrication and erection of storage tank is admissible. As regard the Cenvat credit availed by the appellant in respect of aluminium sheets/coils etc. for insulation of pipes and tubes installed in the appellant factory, I find that in the chemical plant tubes and pipes are integral part of the entire plant. The pipes and tubes are compulsory for the purpose of maintaining temperature insulation and for such insulation the aluminium coils and sheets are used, therefore aluminium coils and sheets are used in plant and the credit should be allowed on such material.
Cenvat Credit on the same item i.e. Aluminium sheets/coils used for insulation for the purpose of cooling system, has been allowed. Following the ratio of the above judgments, I am of the view that appellant is entitle for the Cenvat credit in respect of aluminium coils/sheets etc. used for insulation of pipes and tubes in the plant of the appellant. - The foundation bolt admittedly classified by the supplier under Chapter 84 as spare parts. In the definition of capital goods provided under the Cenvat Credit Rules certain chapter has been specified. One of the chapters is chapter 84, and should be used in the factory of the appellant. Since foundation bolt is classified under Chapter 84 and admittedly used in the factory of the appellant, this is sufficient to qualify the item as capital goods in term of definition of capital goods. Therefore the Cenvat credit on the foundation bolt is clearly admissible.
Appellant have clearly expressed their intention and activity related to availment of Cenvat Credit on the items in question. With this information, the Revenue was at their own liberty to question the admissibility of Cenvat credit. I am of the view that the informations provided by the appellant are more than sufficient for the Revenue, that if at all they are of the view that the Cenvat credit is not admissible they could have extended their investigation and could have issued show cause notice well within the normal period of one year. In failing to do so, the suppression of facts cannot be alleged on the Appellant. - demand of Cenvat Credit is not sustainable on merit as well as on limitation. The impugned order is set aside - Decided in favour of assessee.
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2015 (11) TMI 88 - CESTAT MUMBAI
Denial of refund claim - Unjust enrichment - Bar of limitation - Duty paid under protest - Held that:- Refund which was rejected on the ground of unjust enrichment by the original authority vide order dated 13/9/1989 has been allowed by setting aside the Order-in-Original. It is undisputed that after this order in appeal dated 24/4/1990, the Revenue has not filed any appeal against the said order dated 24/4/1990 therefore same attained finality. Thereafter by way of another show cause notice the Asstt. Commissioner again raised point of unjust enrichment and the same was adjudicated against assessee and Commissioner (Appeals) upheld the same vide impugned order. - proceedings is absolutely non est and infructuous for the reason that once the issue has been settled by the Commissioner (Appeals) without challenging the same, Rvenue could not again raised the same issue by way of another show cause notice and deciding the same contrarily by taking U-turn.
The Asstt. Commissioner and Ld. Commissioner (Appeals) in the subsequent proceedings held that the provision of unjust enrichment is applicable in the case pertaining to the period before the enactment of provision of unjust enrichment and that the refund is sanctioned subsequent to the enactment. Even though contention of the Ld. Asstt. Commissioner is taken as correct but this contention could have been raised not by issuing fresh show cause notice but by way of appeal against the earlier order (dated 24/4/1999) of the Commissioner (Appeals). Since the department failed to file an appeal against the said order, the order dated 24/4/1999 passed by the Commissioner (Appeals) has attained finality and all the proceedings subsequent to that by way of another show cause and adjudication and appeal become non-est and therefore the order dated 24/4/1999 shall prevail by which it was held that unjust enrichment is not applicable. In view of this position the refund claim rejected on the ground of unjust enrichment in the impugned order is not sustainable. - impugned order rejecting claim on the ground of unjust enrichment as well as limitation is not sustainable, hence, the same is set aside. - Decided in favour of assessee.
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2015 (11) TMI 87 - CESTAT MUMBAI
Interest liability - Provisional assessment - Held that:- Appellant had paid the entire differential duty before the finalisation of the provisional assessment sought. There is no dispute that the provisional assessment were finalised by the authorities on 27.08.2012, after almost two months when the appellant paid the differential duty arising out of such finalisation and there is no difference in duty paid. I find that the first appellate authority has not considered this vital fact in his order and also on the provisions of Section 7(4). The said rules specifically states that the interest liability arises on the assessee consequent to the order of final assessment as per sub-rule (3). In the case in hand, when the amount is already discharged and on final assessment there are no dues from the appellant, liability of interest does not arise. - issue is now settled by the Hon'ble High Court in CEAT Ltd. [2015 (2) TMI 794 - BOMBAY HIGH COURT] as well as earlier decision holding that interest is not payable if assessee pays the duty before finalisation, I find the impugned order is unsustainable and liable to be set aside - Decided in favour of assessee.
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2015 (11) TMI 86 - CESTAT MUMBAI
Availment of CENVAT Credit - returned goods - Activity amounts to Manufacture or not - held that:- From the reading Rule 16, it is very clear that taking the status of supplier, even if it is presumed that the activity of supplier is not of manufacture but by virtue of above Rule 16, he was permitted to receive the duty paid goods and taken credit and in case the said duty paid goods after under going the process can be cleared on payment of duty i.e. in case of non-manufacture of activity, equal amount of Cenvat credit to be paid and in case of manufacture duty, transaction value to be paid in terms of Section 4 and as per explanation given in the said rule, duty so paid, that means in case of manufacture or non manufacturing activity, the recipient is entitle for availing the Cenvat credit on such duty. In view of the said provisions, it is absolutely clear that even if the activity of supply is not amount to manufacture but he has paid the said duty is available as Cenvat credit to the appellant. In view of my above discussion, I am of the view that the appellant is legally entitle for Cenvat credit in respect of laminated film received by them for packaging purpose. Therefore impugned order is set aside - Decided in favour of assessee.
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2015 (11) TMI 85 - CESTAT NEW DELHI
Manufacture - digital local telephone exchange - Whether assembly, installation and commissioning of switching system along with power plant, inverter etc. would amount to manufacture - Held that:- In view of the decision of Assessee's own previous case [2015 (6) TMI 401 - CESTAT NEW DELHI]; activity undertaken by the appellant does not amount to manufacture. Consequently, appellant are not required to pay duty. In these circumstances, we set aside the impugned order - Decided in favour of assessee.
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2015 (11) TMI 45 - CESTAT KOLKATA
Single registration in central excise - two separate units at a distance of 221 km - Held that:- Merely because the exempted iron ore concentrate manufactured at a separate plant and transported through pipe line for exclusive use in the manufacture of iron oxide pellets, to another factory situated 221 kms away would not make the two factories as one and the same. In our opinion also, the transfer of raw materials i.e. iron ore concentrate in slurry form through pipe line from Barbil factory to Jajpur Pellet factory cannot be construed that the Barbil plant is a captive plant of the Jajpur factory and entitled to a single Registration.
CENVAT Credit - captive consumption - whether the appellant s Jajpur Unit engaged in the manufacture of Iron oxide pellets, a dutiable product, are eligible to avail CENVAT Credit on inputs, capital goods and input services used in or in relation to manufacture of iron ore concentrate at their Barbil Plant, which were ultimately be transferred to their manufacturing unit at Jajpur for manufacture of the said dutiable pellets falling under Chapter 26 of CETA, 1985 - Exemption under Notification No. 4/06-CE dated 1/03/2006 - Held that:- Out of iron ore fines(uneven sizes) iron ore concentrates in slurry form are manufactured and transported/cleared through pipelines to their pellet plant. The said iron ore concentrate became chargeable to duty w.e.f 01.03.2011. Therefore, it cannot be said that the inputs were directly used by bringing the same from the mines to the pellet plant at Jajpur. On the other hand, in the benefication plant the Iron Ore fines are converted into Iron ore concentrates in slurry form. In our opinion, therefore, the ratio laid down in Vikram Cement s case is not applicable to the facts of the present case.
Consequently, the Appellants are not eligible to avail credit at their Pellet plant at Jajpur on the duty paid on the inputs , Capital goods and input services which are used in or in relation to the manufacture of Iron Ore concentrates at the benefication plant at Barbil.
However, we find force in the contention of the ld. Advocate that in procuring the iron ore concentrate in slurry form through pipe line from their Barbil plant to Jajpur plant, the services used, fall within the scope of input services being specifically covered under the inclusive part of the definition of input service as prescribed at Rule 2(l) of Cenvat Credit Rules, 2004, hence, eligible to cenvat credit at their Jajpur Plant.
Extended period of limitation - CENVAT credit had been availed at Jajpur factory, on an interpretation of the relevant provisions of the CENVAT Credit Rules and principle of law laid down by the Hon ble Supreme Court in Vikram Cement s case & other cases and also the demand notice is issued for the normal period without invoking suppression, mis-statement etc., therefore, in these circumstances penal provision, in our view is not attracted.
Regarding levy of interest for availing the credit we find that a new plea has been raised by the Appellant, whereby it is claimed that they have availed the CENVAT credit at Jajpur plant in their books of accounts only on theoretical basis; actual production of iron ore concentrate(which become dutiable from 01.03.2011) at Barbil plant commenced from 06.06.2013. In our opinion these facts need to be scrutinized and thereafter the applicability of interest provision be accordingly decided in the light of the principles of law settled in this regard. - Appeal disposed of.
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2015 (11) TMI 44 - CESTAT CHENNAI
MODVAT Credit - Rule 57Q - Capital goods - Held that:- Tribunal had directed in its order to compute the irregular MODVAT credit availed. This implies that the MODVAT credit relating to input as well as capital goods is to be ascertained in accordance with law for right application of law. - adjudicating authority is directed to afford reasonable opportunity of hearing to the appellant within three months from the receipt of this order for segregation of the input credit and capital goods credit if any availed verifiable from statutory record and verify the concerned declarations filed in that regard before the jurisdictional authority. If such detailed exercise is done, the authority may precisely work out the respective credits for applicability of the law distinctly appearing in two different Rules i.e., Rule 57I and Rule 57S of the Central Excise Rules, 1944.
Penal provisions in Rule 57I through sub-rule (4) and in Rule 57U through sub-rule (5), were incorporated after 23.6.1996. This being the cut-off date there shall be no penalty for the period prior to that date is leviable in the course of re-adjudication under Rule 57I and Rule 57U respectively. If any other penal provision is attracted, appellant is entitled to reasonable opportunity of defense before imposition if any.
When neither there was any plea in this regard before the Tribunal nor there was decision by the Apex Court on that aspect. Therefore subscribing to the view advanced by the appellant is not possible at this stage after the order of Tribunal merged in the order of Apex Court. Accordingly, time bar plea is rejected.
Appellant pleaded that it is entitled to rebate. But such plea fails when the inputs were not used in manufacture but were exported as traded goods and even unpacking the same but dispatched as was received from suppliers. - Matter remanded back - Appeal disposed of.
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2015 (11) TMI 43 - CESTAT NEW DELHI
Duty demand u/s 11D - Denial of Cenvat Credit - activity of repacking from bulk to retail pack of refined edible oil - payment of duty in terms of the notification no. 37/03-CE dated 30.04.2003 - Held that:- Notification gives option of either paying duty of ₹ 1/- per kg. or claiming exemption of nil rate of duty on the goods which are refined edible oils and if they are packed into unit containers. It is also seen that Entry Nos. 244(B) and (C) do not have any condition and are also not mutually exclusive. It is a settled law that when there are two views possible on a Notification, the view which is more beneficial to the assessee has to be applied. In this case, the appellant felt that payment/discharge of duty of ₹ 1/- per kg. on the unit containers of refined edible oil manufactured by them would be more advantageous to him and has chosen to do so.
When the Notification itself gives two options, the choice of the appellant to choose an option which is beneficial to him cannot be faulted with. - as it is seen that entry no. 244 (B) & (C) do not have any condition and are also not mutually exclusive. It is settled law that when there are two views possible on notification, the view which is more beneficial to the assessee is to be applied. In this case appellant feels that payment at discharge of duty at ₹ 1 per kg of unit container of refined edible oil manufactured by them would be more advantageous to them and has chosen to pay them. With notification itself give 2 options. Choice of the appellant to chose an option which is more beneficial to them cannot be faulted with.
Entry at SI. No. 244 (C) of the notification is not applicable. Therefore, in the light of above cited decisions in the case of Sariba Agro Ltd. (2009 (2) TMI 297 - CESTAT, BANGALORE) we hold that appellant has rightly claimed entry 244 (B) of the notification no. 37/03-CE dated 30.04.2003 and chose to pay duty at the rate of ₹ 1 per Kg. In these circumstances, Cenvat Credit cannot be denaied to the appellant and appellant is availing Cenvat Credit and Paying duty on their final product. Therefore, provisions of section 11D are not applicable to the facts of this case. - Impugned order is set aside - Decided in favour of assessee.
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2015 (11) TMI 42 - CESTAT MUMBAI
Valuation of goods - Inflation in value of export goods - Levy of excess credit - Held that:- Commissioner (Appeals) in her order has observed that in case of Ujagar Prints, the processed goods were returned to the suppliers of the raw materials. In those cases the buyers had not done any processes in job workers premises. In this case the goods were directly cleared from the job workers premises for export and no processes were done by exporters in job-workers premises. It was therefore, necessary to clear the goods at export price which the processors has done. On this ground, she has differentiated the facts from those of Ujagar Prints.- there is no merits in the appeals filed by the Revenue - Decision in the case of Steel Authority of India Ltd., Vs. CCE, Raipur [2005 (3) TMI 377 - CESTAT, NEW DELHI] - Decided against Revenue.
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2015 (11) TMI 41 - CESTAT MUMBAI
Rejection of permission to remove the goods for further processing under Rule 16C of the Central Excise Rules, 2002 - respondent denied the permission on the grounds that the case of the appellant was not found a deserving case as is prescribed under the Board s Circular No.844/2/CX dated 31/01/2007 - violation of the prescribed procedure and conditions of Rule 16C as well as Rule 12AA - Held that:- Appellant has been granted the permission under Rule 16C of the Rules to remove the goods without payment of duty for carrying out certain processes not amounting to manufacture from the financial year 2011-12 till 2014-15. The only ground for refusal to grant permission for the year 2015-16 as mentioned in the impugned order is that the appellant s case was not found to be a deserving case for grant of extension. Further the impugned order does not mention any specific reasons as to how the appellant is not found deserving for grant of permission under Rule 16C of the Rules. Revenue has also failed to prove that the appellant has committed any violation of the terms and conditions and procedure prescribed by the learned Commissioner while granting the permission. In view of these circumstances, we hold that denial of permission under Rule 16C is not legally sustainable. - Impugned order is set aside - Decided in favour of assessee.
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2015 (11) TMI 40 - CESTAT NEW DELHI
Evasion of duty - Penalty under Rule 26 for abetment - Held that:- Rule 26 speaks about imposition of penalty in the case where a person has knowledge or reason to believe that the goods are liable for confiscation. There are no documents or record to establish that the appellant had knowledge that M/s.B.S.Enterprises was evading duty. M/s.B.S.Enterprises sold goods to M/s.G & D Incorporation from where the appellants procured the products. Some of the G&D brand footwears were above ₹ 250/- and were excisable goods. The Commissioner (Appeals) has vaguely concluded that the appellant has abetted the omission and commission of act in contravention of provision of Central Excise Act and has proceeded to impose penalty. The participation of the appellant firm is not established by cogent evidence. There is no evidence to link the appellant firm with the clandestine activities of M/s.B.S.Enterprises. Penalty was imposed upon the partner Shri Virender Kumar which was paid by him. Shri Virender Kumar did not file appeal. - evidence placed and the judicial decisions, the penalty of ₹ 80,000/- imposed on the appellant under Rule 26 is unsustainable and the same is set aside. Taking into consideration, the argument of the learned counsel for appellant that after abatement the duty liability of the seized goods would only come to ₹ 21,365/-, the levy of redemption fine of ₹ 80,000/- in my view, is on the higher side - Decided partly in favour of assessee.
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2015 (11) TMI 39 - CESTAT AHMEDABAD
Denial of refund claim - Export of goods to Nepal - Availability of alternate benefits - Held that:- As per the facts available on record there are two procedures for export of goods to Nepal. One is prescribed under Notification No. 20/2004-CE(NT) on payment of duty and the second is prescribed under Notification No. 45/2001-CE(NT) under Bond without payment of duty. Both the notifications are conditional notifications subject to fulfilling certain procedures and conditions Appellant opted to pay duty under Notification No. 20/2004-CE(NT). - There is no provision for normal rebate of duty paid on excisable goods under Section 11B of the Central Excise Act, when goods are exported to Nepal in view of Notification No. 20/2004-CE(NT) and accordingly there is no scope for a third alternative with the appellant seeking refund under Section 11B of the Central Excise Act 1994 by fitting the shipping bills filed and assessments completed. Appellant has also not challenged the assessment made in the shipping bills. It is also not the case of the appellant that it was prevented from opting benefit under Nofification No. 45/2001-CE(NT). - order passed by the first appellate authority is legally correct and there is no reason to interfere with order - Decided against assessee.
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2015 (11) TMI 38 - CESTAT AHMEDABAD
CENVAT Credit - Job works - Held that:- There is no dispute on the facts that the appellant received the fabrics under the cover of Central Excise Challans issued under Rule 57F(4) of the erstwhile Central Excise Rules and corresponding Rule of Central Excise Rules, 2012. The appellant after due process of fabrics returned the goods to the raw-material supplier, who used in the manufacture of finished products and cleared on payment of duty. - In such cases, duty liability is required to be discharged by manufacturer and not by the job worker. Accordingly, the job worker is not eligible to avail credit in such situation. Duty on inputs used in the manufacture of final products cleared without payment of duty for further utilisation in manufacture of final product, which were cleared on payment of duty by principal manufacturer, on job work basis not hit by provisions of Rule 57F of erstwhile Rule. Rule 57F(4) of the erstwhile Rule corresponding to Rule 4 (5)(a) of the Cenvat Credit Rule 2002, permits the manufacturer to clear the goods to job worker without payment of duty for processing. There is no dispute that the job-work materials were used in manufacture of finished goods by the principal manufacturer, who cleared the goods on payment of duty. Thus, it is the case of Revenue neutral in so far as the payment of duty by the job-worker will enable the principal manufacturer to avail cenvat credit. Hence we find that the order passed by the Adjudicating authority is legal and proper. - Decided in favour of assessee.
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2015 (11) TMI 37 - CESTAT NEW DELHI
Duty demand - extended period of limitation - whether or not the appellant is liable to pay 10% of value of electricity wheeled out of their factory during the relevant period - Held that:- On perusal of the case details it is clear that the matter regarding the status of electricity whether the same is excisable, exempted is a matter of dispute and has been subject matter of various rulings by CESTAT, Hon’ble High Courts and Hon’ble Supreme Court. In the appellant’s own case earlier proceedings were initiated on the same grounds and adjudications were done. In 2006 same issue was taken up in audit and there were correspondence discussing the eligibility of Cenvat credit. Hence, we find that the allegation of willful suppression with intention to evade is not sustainable in the present case and the show cause notice-cum-demand issued on 12/11/2009 is hit by time bar beyond the normal period. It is seen from the impugned order that from October 2008 to June 2009 (covered by first show cause notice dated 12/11/2009) and during July 2009 to December 2009 (covered by second show cause notice dated 18/03/2010) and for the period January 2010 to June 2010 (covered by third show cause notice dated 03/02/2011), the appellant have reversed Cenvat credit attributable to input services used in relation to manufacture of electricity cleared outside. - show cause notice dated 12/11/2009 is hit by time bar beyond the normal period - Decided in favour of assessee.
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2015 (11) TMI 36 - CESTAT NEW DELHI
Denial of CENVAT Credit - credit on various items like MS sheets, plates,joist, channel etc. used for the purpose of manufacture / installation of molasses tanks, boiler etc - adjudicating authority denied the cenvat credit on the ground that items are neither capital goods nor inputs - Held that:- items are used for fabrication of capital goods, namely, shape and sections, plates, hot strips, PMP Plate, Angles, and Channels, Hot Strip Mill Plate, Joints Skelp etc. - appellant is entitled to take Cenvat credit on these inputs as inputs of capital goods. Same has taken the support of CBEC Circular No. 964/07/2012 CX dated 2.4.2012. In these terms, I hold that appellant is entitled to take Cenvat Credit on the items in question. Consequently, appellant is not required to reverse the cenvat credit. In these terms, I set aside the impugned order - Decided in favour of assessee.
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