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Central Excise - Case Laws
Showing 241 to 253 of 253 Records
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2016 (7) TMI 126 - MADRAS HIGH COURT
Cenvat credit on inputs / capital goods used in installing the Captive Power Plant and Captive Power Plant is a Turnkey project which was not excisable - violation of Rule 2(a)(A)(i) and (iii) of the cenvat credit rules - Held that:- The Tribunal has not considered the matter while allowing the appeal with reference to in allowing credit for the entire co-generation plant, without examining the eligibility of the individual items of capital goods for taking CENVAT Credit as per CCR 2004. The Tribunal has simply followed the earlier order passed by the Tribunal and granted relief without discussing the eligibility of individual items involved in the Appeal. Therefore, to meet the interest of justice, the Appeal has to be allowed and remanded to the CESTAT. - Decided in favor of Revenue.
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2016 (7) TMI 125 - RAJASTHAN HIGH COURT
Waiver of pre-deposit - validity of order directing 50% amount to be deposited - As per the amendment by the Finance Act, 2014 the pre-deposit is kept limited to 7.5% of the demand to maintain an appeal - scope of section 35F - Held that:- Taking into consideration the legislative intent in making amendment in the year 2014, we find that due to the condition of predeposit and discretion given to the Commissioner/ CESTAT to grant exemption, the hearing of the appeals has been delayed. To overcome with that difficulty, amendment was brought through the Finance Act, 2014. The condition of pre-deposit of 7.5% of the amount of duty without any provision for exemption has been provided. It is to avoid any litigation on the issue of pre-deposit so that hearing of the appeals can be expedited. Taking into consideration the aforesaid and the orders passed by this court in the cases referred above, we are of the opinion that the orders passed by the Commissioner/ CESTAT need interference.
Thus, taking into consideration the facts available on record, we are of the opinion that on deposit of 15% of the amount of duty or the penalty, as the case may be, appeals would be heard by the Commissioner/ CESTAT. The amount of 15% of the duty or the penalty, as the case may be, would be deposited within a period of one month from today. - Decided partly in favor of appellant.
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2016 (7) TMI 124 - ALLAHABAD HIGH COURT
Prosecution proceedings u/s 9/9AA of the Central Excise Act, 1944 - it was argued that the criminal prosecution in the present matter could also not go on for the reason that the departmental proceeding started against the revisionists to realize the fine/tax has been quashed. - Held that:- it is evident that the revisionists have not been exonerated from the penalty/tax liability etc. but the case was remitted back for fresh decision for fixing liability of each and every individual separately after giving opportunity of hearing to the revisionists.
The revisionists establishment/company have been registered, as required, under the Central Excise Act and they come under the purview of the said Act. In the present matter, the adjudication proceeding has not been finally determined in favour of the revisionists, criminal prosecution can go-on simultaneously with the adjudication proceeding. Thus, from the evidence available on record, no illegality, infirmity or impropriety is found in the impugned order and it cannot be said that no prima facie case is made out against the revisionists. The findings recorded by the concerned Magistrate in the impugned order does not require interference by this Court. There is no violation of any law or rule.
The revision lacks merits and is liable to be dismissed. - Decided against the petitioner.
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2016 (7) TMI 87 - CESTAT CHANDIGARH
Clandestine removal of goods - third parties made statement that he is purchasing the goods from the assessee and produced certain challans/katcha slips of the receipt of the goods. - Held that:- On perusal of the katcha slips/challnas, I find that these challanas / katcha slips have been issued by M/s Jagan Nath Chanan Ram and the name of receiver or to whom these have been issued has not been mentioned anywhere. In that circumstance, it cannot be said that the assessee has issued thes katcha slips/challnas unless and until the genuineness of these katch slips/challans is verified.
With regard to the statement of the assessee recorded during the course of investigation, I find that the statement has also been altered and the assessee in his statement separately has said that he is selling the goods against the invoices on payment of duty.
Merely making some deposit during the course of investigation on persuasion of the departmental officers does not corroborate that the assessee has cleared the goods clandestinely - Entire demand set aside - Decided in favor of assessee.
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2016 (7) TMI 86 - CESTAT NEW DELHI
Grey fabric manufactured to the job worker - whether is required to be treated as intermediate products so as to invoke provision of Rule 16(B) - Held that:- In the case of M/s. Valentino Syntex Pvt. Ltd. Vs. CCE Jaipur [2008 (2) TMI 806 - CESTAT, NEW DELHI ] while considering an identical issue, it was held that the grey fabric manufactured by the assessee out of duty paid yarn and cleared to the job worker for further processing and subsequently received and cleared on payment of duty are required to be extended the benefit of Rule 16(B) of Central Excise Rules by considering the same as intermediate goods.
Also as the permission granted by the Commissioner in terms of Rule 16 (B) on 17.12.04 has not been withdrawn by him and was still in existence, Revenue cannot take a stand against the said permission. The duty paid by the job worker was available as credit to the appellant who was in a position to utilise the same for payment of duty on the final product. Inasmuch as the appellant has admittedly paid the duty on the grey fabrics which have come back to them from the job worker, we fully agree with the learned advocate that entire exercise was only a paper exercise leading to a revenue neutral position.- Decided in favour of assessee
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2016 (7) TMI 85 - CESTAT NEW DELHI
Excise duty on waste and scrap - Revenue's allegation that the scrap has arisen during the manufacture of final product and stand clandestinely removed by the appellant is primarily based upon the said statement by the authorised signatory - Held that:- Having gone through the said statement, we find that the same is not categorical statement accepting dutiable waste and iron scrap cleared clandestinely under the said recovered slip. He has nowhere clearly admitted that the same is generated during the course of manufacture of the final product and stands cleared by them clandestinely. The said statement, as per the settled law cannot be made the sole basis for confirming the allegations of clandestine removal. The Revenue has not made any further investigation to find out as to when the said goods were cleared and to whom it was cleared. There is nothing on record to show that who is the ultimate buyer of the same. In the absence of such an evidence to corroborate the Revenue’s stand, upholding of the same is not called for.
Also the appellant has taken a stand that the dutiable waste generated in their factory stands cleared on payment of duty by way of issuing of invoices. No efforts have been made by the Revenue to find out the quantum cleared by the appellant on payment of duty and to make any suggestion or allegation that the scrap generated was excess in quantity then the duty paid by them. In such a scenario, we find no merit in the Revenues stand. - Decided in favour of assessee
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2016 (7) TMI 84 - CESTAT CHANDIGARH
Raw materials/inputs found in excess at the time of search - confiscation and consequently redemption fine and penalty - Held that:- As the issue has been settled that the inputs found in excess are not liable for confiscation, therefore, hold that the inputs are not liable for confiscation.
As the appellant was not maintaining proper account of their inputs, therefore, the penalty is imposable in view of the decision of this Tribunal in the case of Unimark Remedies Ltd. (2005 (6) TMI 197 - CESTAT, MUMBAI ). In the circumstances, impose penalty of ₹ 5,000/- (Rupees Five Thousand) on the appellant for non accounting of raw materials in the statutory records.
With regard to the imposition of penalty on the partner Shri Naresh Joshi, hold that as penalty on the main appellant i.e.M/s Mahadev Steel Industries has already been imposed, therefore, no penalty is warranted on Shri Naresh Joshi.
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2016 (7) TMI 83 - CESTAT CHANDIGARH
Cash refund - duty remained unutilized in their cenvat credit account at the time of closure of the factory under Rule 5 of Cenvat Credit Rules, 2004 - Held that:- The appellant is entitled to claim cash refund of unutilized amount of credit lying in their cenvat credit account at the time of closure of their factory on 31.10.2010 under Rule 5 of Cenvat Credit Rules, 2004 as relying on case of Union of India vs. Slovak Trading Co. Pvt. Ltd. (2006 (7) TMI 9 - KARNATAKA HIGH COURT ) wherein held that the respondent is entitled to get refund lying unutilized in their Cenvat credit account on the closure of their factory - Decided in favour of assessee .
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2016 (7) TMI 82 - CESTAT NEW DELHI
Penalty imposed on the misc. provisions of Rule 27 of CER 2002 and Rule 15 (A) of CCR, 2004 - manual filing of returns and accepted by the department - Held that:- The appellant has a valid point in their argument that the department has been accepting their manual returns and after 5 years, issued notice for imposing penalties for not filing returns by electronic mode
While electronic filing will facilitate easy monitoring and proper record keeping, it was expected when the scheme was introduced, the assessee be guided by the Department for complying with the new requirement. The appellants have been filing manual returns. It is an admitted fact that the main monthly returns used for assessment has been filed by them electronically. Further, when the scheme of E-filing was introduced in respect of other returns in 2011/2012, no penalty can be imposed for the period prior to that for cases to failure to file electronically. Also take note that no irregularity or short payment of duty is connected to any of these returns.
Considering the above factual and legal position, find that while there is an admitted violation on the part of the appellant regarding mode of filing these returns, it will be proper and justifiable to restrict the penalties to ₹ 5,000/- each in terms of Rule 27 of Central Excise Rules, 2002 and Rule 15(A) of Cenvat Credit Rules, 2004. The appeal is disposed of in the above terms.
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2016 (7) TMI 81 - CESTAT AHMEDABAD
Eligibility to the benefit of Notification No. 8/2003-CE dated 01.3.2003 - Held that:- The condition (iii) of Para 2 of the said Notification is very specific and the reason/cause behind its non-fulfilment, in our opinion, is irrelevant. Accordingly, we do not see any reason to interfere with the findings of the learned Commissioner (Appeals) confirming the duty and setting aside the penalty imposed as the appellant have simultaneously availed the exemption under Notification No. 08/2003-CE as well as CENVAT credit scheme which is not permissible as rightly held by the lower authority.
The plea of appellant that they have not availed credit of duty paid on inputs up to 29.10.2006 used in the manufacture of any specified/ non-specified goods is not acceptable as the appellant himself committed that they have utilised the credit during transitional period. Further, the appellant has not put on record that they have maintained a separate stock which remains unutilised up to the aggregate value of first clearance of Rs. One crore during the financial year 2006-07 as argued. - Decided against assessee
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2016 (7) TMI 80 - CESTAT MUMBAI
Demand of duty on sugar syrup consumed captively for manufacture of exempted finished goods - test of marketability - Held that:- We find that the test report clearly states that the samples contained less than 65% sugar. The test report does not indicate the date on which the test was conducted or if the samples are deteriorated or not. In view of that the basic ground on which the Commissioner (Appeals) has based his order are found to be misplaced. We find that the Circular No. 780/13/2004-CX dated 12/03/2004 rightly points out that what is relevant is the test of marketability and not the sugar contents in the syrup. We find that there is no evident whatsoever of the test of marketability in the proceedings anywhere. - Decided in favour of assessee
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2016 (7) TMI 79 - CESTAT CHENNAI
Denial of Cenvat credit on Tour Operators Service used for bringing staff to the factory - Held that:- This Tribunal in the assessee s own case for the prior period has allowed the assessee s appeal. Also find that the adjudicating authority in his findings has discussed the entire issue in detail and discussed the interpretation of the term activities relating to business and held that the input services availed by the appellant assessee for tour operator s service on which cenvat credit has been claimed is in relation to the manufacture of the final products.
By respectfully following the ratio laid down by the Hon’ble High Court of Bombay in the case of CCE, Nagpur Vs. Ultratech Cement Ltd. Reported in (2010 (10) TMI 13 - BOMBAY HIGH COURT ) and the decision of this Tribunal, the impugned order is set aside. - Decided in favour of assessee
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2016 (7) TMI 78 - CESTAT MUMBAI
Duty liability on samples drawn for testing within the factory premises - Revenue contented that the Supplementary Instructions of the Central Board of Excise and Customs has laid down procedure for drawal and accounting of samples for testing which apparently insists upon payment of excise duty - FAA set aside the duty demand - Held that:- Samples that are retained in the factory of production for prescribed periods as well as those that are subject to test within the factory are not, in effect, removed from the factory and it would appear that these should not be liable to excise duty at that stage. It would appear that the adjudicating authority has been over-zealous in interpreting the treatment to be accorded to removals to be applicable to all samples whether retained in the factory or taken outside. We have no doubt in our minds that drawing of samples and removal of samples are two different events and it is only the latter that requires discharge of duty liability.
Samples that are drawn and retained are, by and large, reintroduced subsequently in the production process and thus metamorphosised as finished goods that are removed on payment of duty. Even if the samples were to lose their identity and characteristics during the testing, the cost of such samples would, in the normal course, be absorbed in the cost of production of finished goods that would ultimately be charged to duty. There is, therefore, no logic in concluding that there is loss of revenue on account of drawal of samples to the extent that such samples are retained or tested within the factory of production. - Decided against revenue
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