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Central Excise - Case Laws
Showing 1 to 20 of 3528 Records
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2016 (12) TMI 1871
Finalization of provisional assessment - Non-issuance of show cause notice - Demand of duty with interest - HELD THAT:- it appears from the impugned order that there is no provision of issuance of show cause notice or granting any opportunity of personal hearing before the finalization of the provisional assessments. We also find that in Rule 9 B there is no provision of issuance of show cause notice or for granting any opportunity of personal hearing before the finalization of provisional assessment.
Needless to mention that Rule 9B is pertaining to provisional assessment. But before us the dispute is regarding finalization of the assessment. When it is so, it appears that the principle of natural justice has not been followed as per the doctrine of AUDI ALTERAM PARTEM.
The order set aside - Matter remanded back to the Commissioner (A) to pass fresh order on merit after providing a reasonable opportunity of hearing to the appellant. Fresh evidence, if need be, may be admitted as per law.
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2016 (12) TMI 1870
Levy of penalty u/s. 76 of FA - entire amount of Service Tax paid along with interest, for the delayed period before issuance of the show cause notice - HELD THAT:- It is observed that the Order-in-Revision was issued on 26-4-2010. The revision powers of the jurisdictional Commissioner were done away with as per the substituted Section 84 of the Finance Act, 2009 w.e.f. 19-8-2009. Order-in-Revision passed by the Commissioner after 19-8-2009 is thus without jurisdiction and is set aside.
Appeal allowed.
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2016 (12) TMI 1851
Levy of Education cess in addition to duty under the compounded levy scheme - HELD THAT:- The issue decided in the case of Commissioner Central Excise, Jaipur-II Vs. Shri Ram Steel Industries [2010 (7) TMI 416 - CESTAT, NEW DELHI] where it was held that education cess and higher education cess cannot be said to be part of the compounded levy determined under the compounded levy scheme in terms of Notification No. 34/2001-C.E., dated 28-6-2001 read with Rule 15 of the said Rules, and Education Cess to be levied on compounded levy.
Demand upheld - appeal allowed - decided in favor of Revenue.
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2016 (12) TMI 1850
Clandestine removal - PVC insulated wires armoured/unarmoured cables - retraction of statements - appellant produced different charts pointed out various mistakes in calculating the duty demand and the same has not been considered - principles of natural justice - HELD THAT:- It is the contention of the appellant that during the course of adjudication they produced various charts for calculation of demand duty and the same has not been considered by the adjudicating authority. In fact, those calculations given by the appellant are required to be considered by the adjudicating authority. Moreover, the defences raised by the appellant are to be considered by the adjudicating authority in true spirits and after considering the explanations and chart given by the appellant. As, the adjudicating authority was required to give due consideration of the records produced by the appellant but the same has not been given, in that circumstances, the impugned order deserves de-merits, therefore, the same is to be set aside.
The matter is remanded back to the adjudicating authority for consideration the grievance raised by the appellant - Appeal allowed by way of remand.
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2016 (12) TMI 1818
Refund claim - the Assistant Commissioner of Central Excise is personally present in court and he submits that under the refund order(s) passed by the him, due relief is granted to the manufacturer, in pursuant to the direction given by the Commissioner, Custom and Central Excise (Appeals) on 24.11.2014 and 25.03.2015, respectively - HELD THAT:- After noticing the facts from the Court’s order recorded on 24.11.2016, we find that the departmental authorizes has now discharged the responsibility under Section 11(BB) of the Central Excise Act. Thus, we order closure of the cases by ordering that the 02.12.2016 refund order be placed in the records of the concerned case.
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2016 (12) TMI 1776
Valuation - job-work - stock transfer basis - Rule 8 of Central Excise Valuation Rules, 2000 - HELD THAT:- The appellant supplied the bulk detergent powder to their job worker but at the same time they are selling the same product to independent buyers, i.e. Hindustan Lever Ltd. on principal to principal basis. In the transaction of job work, the valuation is governed by Rule 8 in a case where no sale price is available and entire transaction is under job work only.
However, in a case where the same goods is sold by the assessee on principal to principal basis then instead of valuation of Rule 8, the sale price to the independent buyer will apply.
Appeal dismissed - decided against Revenue.
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2016 (12) TMI 1762
CENVAT Credit - input services - service tax paid to avail the advertisement services - Broadcasting Agency services was rendered - denial of credit on the ground of nexus - Held that:- What that is intention of the law is to tax the provision of service. The service provided being identified and relatable to the appellant, there should not be denial of Cenvat credit of the service tax paid on advertisement service availed by it having nexus to its business - credit allowed - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1753
Excisability - waste - Bagasse - Held that:- The questions of law have been answered by Hon’ble Apex Court in the case of Union of India v. DSCL Sugar Ltd. [2015 (10) TMI 566 - SUPREME COURT] conclusively holding that bagasse is not an excisable item and it is only an agricultural waste, which emerges during process of sugar - the questions of law are answered in favour of the assessee and against the department.
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2016 (12) TMI 1744
CENVAT credit - godowns hired at different places - place of removal - Held that:- It does not appeal to common sense how CENVAT credit is impermissible when storage of the goods was made in hired godowns. That has direct nexus to the manufacturer to remove congestion in the factory. Therefore such integral connection does not call for denial of the Cenvat credit of the service tax paid on rent paid to avail godown facility - Credit allowed - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1736
MODVAT/CENVAT Credit - inputs used partially in the manufacture of duty paid goods as well as partly in exempted goods - demand of reversal of an amount of 8% of the value of limestone cleared to Unit-II - Held that:- The entire MODVAT credit availed by the appellant on the duty paid explosives utilised for mining of limestone has been reversed alongwith interest - once the MODVAT credit availed has been reversed, it should be considered as not availed ab initio - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1716
Benefit of Concessional rate of duty - N/N. 4/2006-CE dated 1.3.2006 as amended - appellant has exported cement in 50 kgs. bag - denial of concession on the ground that no MRP was mentioned nor any parameter mentioned in the Standards of Weights & Measures (Packaged Commodity) Rules, 1977 was fulfilled - Held that: - The Tribunal in the case of Jaypee Bela & Rewa Plant vs. C.C.E., Bhopal [2016 (12) TMI 531 - CESTAT NEW DELHI] has observed that where retail sale price was not required to be cleared other than package form would be entitled to the benefit of the N/N. 4/2006-CE - appeallant are allowed the benefit of notification - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1714
CENVAT credit - inputs - Cement, MS CTD Bars, MS Rounds, TMT, Plates MS Angles, MS Channels, Beams and Rails etc. used by the Assessee for manufacture of machines/machineries installed in the factory - Held that: - the issue decided in the case of Commr. of C. Ex., Cus. & S.T., Bilaspur Versus Ambuja Cement Eastern Ltd. [2016 (12) TMI 1680 - CHHATTISGARH HIGH COURT], where it was held that It is not disputed that the inputs like M.S. Angles, M.S. Plates, M.S. Joists and Channels were used for manufacturing of certain essential parts of the factory which are capital goods and since they are essential parts of the factory, they satisfy the twin tests of being capital goods as well as the user test, thus entitled for credit - credit allowed - appeal dismissed - decided against Revenue.
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2016 (12) TMI 1707
CENVAT crdit - duty paying documents - it was found that M/s. M.K. Steels Pvt. Ltd. has issued the same invoices in number of cases from Kolkata - Held that: - issue is squarely covered by the decision in the case of The Commissioner of Central Excise Customs & Service Tax Versus M/s. Juhi Alloys Ltd., Anil Kumar Shukla [2014 (1) TMI 1475 - ALLAHABAD HIGH COURT], where it was held that The goods where demonstrated to have travelled to the premises of the assesee under the cover of Form 31 issued by the Trade Tax Department, and the ledger account as well as the statutory records establish the receipt of the goods. In such a situation, It would be impractical to require the assessee to go behind the records maintained by the first stage dealer - credit allowed - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1705
CENVAT credit - inputs - scrap - penalty - Held that: - Revenue had not established with sufficient evidences that the appellants have not received cenvatable inputs in their factory. It appears that appellants have purchased both cenvatable and non-cenvatable scrap, as has been stated in the statement recorded under Section 14 of the Director, that they are mainly concerned with receipt of scrap and they take credit on the basis of duty indicated there in the invoices and they are not much concerned with consistency of the scrap.
In view of the fact that the assessee is not contesting strongly the reversal of duty made by them, the appellant is entitled to deduct the demand of ₹ 16,18,834/- from the subsequent demand of ₹ 25,57,554/- and they are liable to only the balance demand of ₹ 9,38,720/- in the circumstances.
Confiscation - penalty - Held that: - in view of the fact that the appellants had reversed the duty in the course of investigation and the whole finding of lower authority is on assumption and presumption, the confiscation and penalty set aside.
Appeal allowed in part.
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2016 (12) TMI 1693
Principles of Natural Justice - penalty u/r 26(2) of CER 2002 - Held that: - Revenue has been able to prove that the appellants were engaged in the activity of issuance of fake invoices without movement of the goods - as the appellants are involved in the matter by way of issuance of fake invoices, therefore, the provisions of Rule 26(2) of CER 2002 are attracted to the facts of this case - penalty rightly imposed - appeal dismissed - decided against appellant.
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2016 (12) TMI 1692
Whether the Soap Stock arising in the course of manufacture of ‘Vanaspati’ was the goods manufactured by oil plant of the appellant to enjoy exemption benefit under N/N. 115/75-C.E., dated 30-4-1975?
Held that: - Revenue did not rule out that ‘Vanaspati’ manufactured by a “oil mill” is also eligible to get exemption under the aforesaid notification - also, manufacture of soap stock was not ruled out by Revenue nor disputed that the same was marketable.
Exemption allowed - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1691
Manufacture - installing all items of Computer and connecting them by cord - whether the process amounting to manufacture? - Held that: - After receiving at the customer’s end while installing the cable of the monitor and key board need to be connect with the CPU. This activity does not amount to manufacture as whole computer is already manufactured items by way of assemble of various components and in the manufactured condition, it is bought and sold by the appellant.
There is no activity carried out by the appellant which amounts to manufacture of some new and distinct product - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1690
Dutiability - sludge generated in the course of manufacture - whether what that came out in the course of manufacture of principal goods whether shall amount to manufacture? - Held that: - reliance placed in the case of UNION OF INDIA Versus DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT], where it was held that it is not in dispute that Bagasse is only an agricultural waste and residue, which itself is not the result of any process. Therefore, it cannot be treated as falling within the definition of Section 2(f) of the Act and the absence of manufacture, there cannot be any excise duty.
Revenue raised the plea that the sludge generated was capable of being marketed stating that the waste generated was sold. It may be stated that amendment to the Section 2(d) of the Central Excise Act, 1944 was made with effect from 10-5-2008 to bring the capability of the goods being marketable to satisfy the twin test - But present case is prior to this amendment to law. The law came into force at a later stage does not fasten the appellant to the liability.
Appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1686
Valuation - certain goods cleared on stock transfer basis - Revenue entertained the view that the value of the two bought out items also need to be included for payment of excise duty - Held that: - excise duty can be charged only on the goods manufactured. The same is to be charged on the assessable value of the goods cleared from the factory - There is no dispute that lightening arrestor as well as insulator are bought out items which has been supplied from the head office along with goods manufactured in the respondent’s factory - It is nobody’s case that such deduction for bought out items is not to be extended - appeal dismissed - decided against Revenue.
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2016 (12) TMI 1684
Valuation - manufacture of single yarn which is captively used for manufacture of double or multi-fold yarn which are consumed for captive use or cleared as such - Revenue included duty-paid on the single yarn in the cost of the double yarn and also 10% notional profit for arriving at the value of double or multi fold yarn - Held that: - As regard inclusion of 10% notional profit, we find that there is no statutory provision to include a fixed amount of notional profit in the value of the captively consumed goods. The notional profit can only be added if there is a profit as per the books of accounts of the assessee. In the present case, it is admitted fact that, as per cost auditor’s report, the appellant is bearing losses. Therefore, there is no question of adding 10% notional profit in the value of doubled yarn.
Since the duty has to be re-quantified, the matter needs remand to the original authority - appeal allowed by way of remand.
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