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Central Excise - Case Laws
Showing 41 to 60 of 3528 Records
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2016 (12) TMI 1615 - CESTAT KOLKATA
Clandestine manufacture - evidence - Held that: - the appellant had raised several issues for difference between the SION and actual production depending on the factors as quality of raw-materials, the industry practices, etc.. The allegation of clandestine removal is required to be established by proof of positive evidence - In the present case, the department merely proceeded on the basis of SION, without examining the facts of the case, which are required to be examined by the Adjudicating Authority in the interest of justice - the matter is remanded to the Adjudicating Authority to decide the case - appeal allowed by way of remand.
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2016 (12) TMI 1595 - CESTAT, HYDERABAD
Maintainability of appeal - Held that: - as the party Appeal No.20412/2015 filed against the very same Order-in-Appeal was already disposed by this Tribunal vide Final Order No.31040/2016, dated 14-10-2016, the appeal filed by the department is infructuous and is dismissed - decided against Department.
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2016 (12) TMI 1582 - MADRAS HIGH COURT
Condonation of delay - no satisfactory reason has been adduced by the appellant - The reason cited for the delay is that while initially there was no scope for appeal by virtue of the judgment of the Supreme Court in J.K.Udaipur Udyog, [2002 (8) TMI 162 - CEGAT, NEW DELHI], the reversal of the judgment by the Full Bench gave hope to the Appellant to file further appeals - Held that: - The judgment of the Supreme Court was delivered on 16.1.2006 and the appeals were filed on 25.11.2006. However, in the facts and circumstances of the matter, we take a lenient view and condone the delay of 25 months and 14 days upon payment of costs of ₹ 5,000/- in each case, to the Tamilnadu Mediation and Conciliation Centre, High Court, Chennai - delay condoned - decided in favor of assessee.
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2016 (12) TMI 1581 - MADRAS HIGH COURT
CENVAT credit - catering services - denial on the ground that the same is not used in or in relation to the manufacture of the finished excisable goods in its factory - Held that: - the issue stands decided in favor of assessee in the case of The Commissioner of Central Excise v. M/s. Borg Warner Morse Tec Murugappa Pvt Ltd [2015 (4) TMI 254 - MADRAS HIGH COURT], where similar issue was raised - It is made clear that the cost of food borne by the worker should not be taken into consideration for the purpose of grant of credit of service tax - appeal allowed - decided in favor of assessee.
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2016 (12) TMI 1577 - CESTAT, MUMBAI
Scope of SCN - the Commissioner (Appeals) in the impugned order alleged clandestine removal whereas in the SCN no such allegation was raised - imposition of penalty u/s 11AC, as there was no suppression of facts - Held that: - at this stage, the appellant cannot raise any issue as regard the confirmation of demand and invoking the provision of Section 11AC - since the proposal of penalty u/s 11AC and imposition of penalty u/s 11AC was not disputed then the penalty u/s 11AC has to be equal to duty confirmed - appeal dismissed - decided against appellant.
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2016 (12) TMI 1568 - CESTAT, BANGALORE
CENVAT credit - beams - sheets - channels - plates - Held that: - The adjudicating authority on its previous visit to the factory on 10.10.2013 has only seen the invoices and the photographs but has not fully examined the usage of the specific items of material - this case needs to be remanded back to the original authority to verify the actual use of the items alleged to have been stated by the appellant to have been used in the fabrication which is used for production of the paper - appeal allowed by way of remand.
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2016 (12) TMI 1523 - CESTAT BANGALORE
Refund - Cenvat credit - Rule 5 of CENVAT Credit Rules (CCR) 2004 - NNo.27/2012-CE - Held that: - The adjudicating authority has reached to a categorical finding of nexus between the input service and the manufacture of excisable goods by the appellant. Learned counsel further submitted that all the services have been held to be input service by various decisions of the Tribunal and the High Court and in support of his submission - Appeal allowed - decided in favor of the assessee.
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2016 (12) TMI 1522 - CESTAT AHMEDABAD
Cenvat credit - Input services - Pnelaty - Rule 15(2) of CCR, 2004 - Time limitation - I find force in the contention of the Ld. Advocate for the appellant in as much as on the very same issue of the eligibility of Cenvat Credit on security services, audit had raised objection in the year 2008 (Copy of the letter enclosed at Page No 97 and 98 of Appeal Memorandum). Therefore, it cannot be said that the appellant had suppressed the facts in availing the credit on such Input Services from the knowledge of the department - Appeal partly allowed.
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2016 (12) TMI 1521 - CESTAT AHMEDABAD
Reversal of Cenvat credit on CVD - Rule 26 of Central Excise Rules, 2002 - Interest - Penalty - the Appellants are eligible to avail credit on the inputs which were brought to the factory with intention to use in the manufacture of finished goods but soon after they came to know that the inputs could not be used and required to be destroyed, they should have reversed the credit voluntarily under intimation to the department. Having continued to retain the credit after destruction of the same till being pointed out by the department, in my opinion, cannot be construed as a bonafide act. - Levy of interest and penalty confirmed.
In the absence of any valid reason and specific evidence against the employee Shri K.D. Dholakia, penalty imposed on him is set-aside - Decided against the assessee.
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2016 (12) TMI 1520 - CESTAT AHMEDABAD
Refund - Classification of Di-calcium Phosphate - Held that: - I find from the records viz. letter dt. 20.07.2006 that the said amount has been claimed as paid by debiting the CENVAT credut amount towards discharge of duty on disputed product Di-calcium Phosphate which was later classified as an exempted product - Whereas, in the letter dated 20.07.2006, the appellant had categorically submitted that the credit of ₹ 10,96,976/- involved in the raw materials/inputs used in the manufacture Di-calcium Phosphate has been debited by them while computing the refund amount - Appeal allowed by way of remand.
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2016 (12) TMI 1519 - CESTAT MUMBAI
Imposition of penalty u/r 25 of the Central Excise Rules 2002 - The appellants have defaulted monthly payment of excise duty on due date in respect of the clearance of their final product for more than one month - demand on the ground that during the default period the duty should have been paid on consignment basis and also from PLA and not by utilizing the cenvat credit - Held that: - The only lapse on the part of the appellants was they were supposed to pay duty through PLA on consignment basis. In this fact, it cannot be said that the appellants had any intention to evade payment of duty as each and every consignment was undisputedly cleared on the invoices issued under Rule 11 of Central Excise Rules, 2002 - Since the appellants have paid the duty even from cenvat account and the department has accepted the said payment for the reason that the said payment of duty, therefore the only lapse at present is that the appellants have not paid the duty on consignment basis but on monthly basis. For this lapse in my considered view, the penalty under Rule 25(1) (a) cannot be imposed.
However there is no doubt that the appellants have contravened the provision inasmuch as they have paid duty on monthly basis as against requirement of payment of duty on consignment basis. Therefore they are liable for penalties but not under Rule 25(1) (a) but under Rule 27 of the Central Excise Rules. As per my above discussion, I reduce the penalties from ₹ 1lakh each to ₹ 5,000/- each.
Appeal disposed off - decided partly in favor of appellant.
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2016 (12) TMI 1518 - CESTAT MUMBAI
Valuation - manufacture of Air Conditioners/Refrigeration equipment and supplying the same on self basis at site and undertaking the job of erection and installation of such Air Conditioners/Refrigeration - whether the freight charges to be included in the assessable value? - most appropriate method in the case is Rule 8 - Held that: - On a plain reading of Rule 8 it is clear that the value should be 115% of the cost of manufacture of the product. The provision does not provide to add any elements over and above the 115% of the cost manufacture. Therefore addition of freight charges in the value of 115% is without authority of law - freight charges is not includible in value adopted by the respondent - appeal dismissed - decided against Revenue.
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2016 (12) TMI 1517 - CESTAT NEW DELHI
Valuation - Cash discounts - scope of ambit - whether the cash discount realized back by the appellants through debit notes is chargeable to central excise duty? - Held that: - what has to be seen in order to arrive at the correct value of excisable goods under Section 4 is such value at the time of removal, and this being so under both the old Section and the new Section, cash discount has to be allowed as has been held in Union of India v. Bombay Tyre International Limited [1983 (11) TMI 70 - SUPREME COURT OF INDIA] - there will be no need to add back the discounts to the assessable value, even if the same are subsequently recovered - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1516 - CESTAT NEW DELHI
CENVAT credit - advertisement service - denial on the ground that such service has no nexus with the output service provided by the appellant namely, authorized service station service - Held that: - Since the service tax paid on the disputed service is in relation to the business activities of the appellant, in my view, cenvat credit cannot be denied on the ground that the same is not conforming to the definition of input service - appeal allowed - credit allowed - decided in favor of appellant.
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2016 (12) TMI 1515 - CESTAT BANGALORE
Imposition of penalty - belated payment of duty - Rule 8(3) of the Central Excise Rules, 2002 - whether the respondent is liable to pay penalty under Rule 25 of the Central Excise Rules 2002 for non-payment/delayed payment of interest under Rule 8(3) of the Central Excise Rules 2002? - Held that: - Rule 25 stipulates penalty subject to provisions of Section 11AC Central Excise Act, 1944. In other words for imposing penalty under Rule 25, the short payment must be due to the reasons of fraud, collusion or any willful mis-statement or suppression of facts with an intent to evade payment of duty. As no allegations with respect to suppression of facts are made in the show-cause notice issued to the respondents, penalty under Rule 25 cannot be imposed in this case - appeal rejected - decided against Revenue.
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2016 (12) TMI 1514 - CESTAT HYDERABAD
Refund claim - excise duty paid wrongly - unjust enrichment - Held that: - Under Section 12B of Central Excise Act, 1944 when the invoice is raised including the excise duty a presumption is raised that the incidence of duty is passed on. But this presumption is a rebuttable one. When the invoice was mistakenly raised including the duty and when excise duty was not collected, there is no question of the burden of duty being passed on.
The appellant paid excise duty wrongly, and the same though included in invoice has not been collected from BHEL. The entry was made debiting the excise duty without actually collecting the excise duty - BHEL has categorically stated that they have not paid the excise duty raised in the invoice which establishes that the duty burden has not been passed on - refund is not hit by unjust enrichment - appellant is eligible for refund - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1513 - CESTAT BANGALORE
Cement and clinker - Reversal of CENVAT credit - Rule 3(5B) of Cenvat Credit Rules - Held that: - the parties below have not examined the documentary evidence. The appellant has also produced these documents in the present appeal also. But in the impugned order, the learned Commissioner (Appeals) has observed that the appellants have not produced any documentary evidence to prove that the provision is made only for partial value of goods for write off. In view of this finding returned by the Commissioner, I am of the opinion that this case needs to be remanded back to the learned Commissioner with a direction to consider the documents and the worksheets and the policy of the company with regard to partial write off - appeal allowed by way of remand.
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2016 (12) TMI 1512 - CESTAT AHMEDABAD
Pre-deposit - Section 35F of the Central Excise Act,1944 - interpretation of statute - Held that: - I find that the wordings employed therein are as clear as daylight. In clause (iii) it is unambiguously prescribed that any person aggrieved by a decision or order referred to Clause (b) of sub- Section (1) of Sec. 35B of Central Excise Act, unless deposits 10% of the duty/penalty or duty and penalty, as the case may be, the appeal shall not be entertained. I do not find any reason to read the said provision in any other manner, so as to come to the conclusion that the Appellant is required to deposit 2.5% and not 10% as prescribed under the said provision, in view of the settled principle of statutory interpretation.
Appeal dismissed - decided against appellant.
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2016 (12) TMI 1511 - CESTAT AHMEDABAD
Attachment of property - factory premises was leased to M/s Siddhnath Exports, an 100% EOU, for the period from 27.03.2000 to 26.03.2006. Since M/s Siddhnath Exports defaulted in payment of confirmed excise duty and penalty amounting to ₹ 4,59,00,617/-, the recovery proceeding of the said amount was initiated from the Appellants - the recovery notice was issued to the Appellant on 11.10.2005 along with M/s Siddhnath Exports for recovery of the outstanding dues under Section 142(1)(c)(ii) of Customs Act, 1962. It is not in dispute that under registered lease deed executed on 27.03.1999, the Appellants had leased their factory, building and plant and machinery to M/s Siddhnath Exports for a period of six years commencing from 27th March 2000, and till 26th March 2006 and stipulated that in any case, the factory was not to be vacated till the export obligation was discharged. However, the said lessee M/s Siddhnath Exports has left their premises before completion of export obligations and expiry of lease period of six years.
Held that: - I find that on the very same issue, the Tribunal has discussed in detail, the legality of the recovery of the outstanding dues from the lessor when the lessee, an 100% EOU, vacated the premises before fulfillment of the export obligations in Rajabali Ismail Rajbara case[2014 (3) TMI 483 - CESTAT AHMEDABAD (LB)] and by majority held that recovery cannot be made from the Lessor by attachment of the property - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1510 - CESTAT AHMEDABAD
Pre-deposit - Section 35F of the Central Excise Act,1944 - interpretation of statute - Held that: - I find that the wordings employed therein are as clear as daylight. In clause (iii) it is unambiguously prescribed that any person aggrieved by a decision or order referred to Clause (b) of sub- Section (1) of Sec. 35B of Central Excise Act, unless deposits 10% of the duty/penalty or duty and penalty, as the case may be, the appeal shall not be entertained. I do not find any reason to read the said provision in any other manner, so as to come to the conclusion that the Appellant is required to deposit 2.5% and not 10% as prescribed under the said provision, in view of the settled principle of statutory interpretation.
Appeal dismissed - decided against appellant.
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