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Central Excise - Case Laws
Showing 61 to 80 of 3528 Records
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2016 (12) TMI 1463 - CESTAT HYDERABAD
CENVAT credit - MS items under the category of capital goods - Held that: - the amount of ₹ 18,00,168/- has been utilised for pre-heater, staircase, coal mill building, platforms, silo, coal mill platform etc - The appellant is eligible for that part of the MS items which were used for fabrication and manufacture of capital goods / parts / components - credit allowed for this part.
The credit of ₹ 11,88,607/- availed by the appellant on MS items used for civil construction as well as temporary structures is not eligible for credit. The same is disallowed. The appellant has reversed the credit to the tune of ₹ 29,88,775/- even before the issuance of the show-cause notice - The irregular credit having been reversed prior to the utilisation, so, the appellant is not liable to pay interest
Appeal disposed off - decided partly in favor of appellant.
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2016 (12) TMI 1462 - CESTAT NEW DELHI
Clandestine removal - demand of duty with interest and penalty - denial of SSI exemption - value of clearances including clearances done clandestinely, exceeds the exemption limit - time limitation - Held that: - apart from the statement of managing director no other evidence has been brought by the revenue on record to show that the goods have been manufactured how the inputs for these goods have been procured and how these goods have been cleared i.e. mode of transportation. The authors of these loose slips have not been called for clarification of clandestine clearances of the goods. In the absence of such corroborative evidence demand is not sustainable against the main assessee - the charge of clandestine removal of goods against the main assessee is not sustainable. Therefore, the demand of duty along with interest and penalty on both the assessee is not imposable.
Extended period of limitation on charge of clandestine removal - Held that: - as the charge of clandestine removal has been set aside against the parties, therefore, revenues appeal deserves no merits and the ld. commissioner (A) has rightly allowed the benefit of limitation to the main assessee more over on merits.
Appeal dismissed - decided against Revenue.
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2016 (12) TMI 1461 - CESTAT NEW DELHI
Clandestine removal of finished products - 94.500 MT of M.S. Angles - Held that: - Since the Director has categorically admitted non-accountal of raw-material and clandestine removal of the finished goods and the statements has not been retracted before the Central Excise Officers, I am of the view that Central Excise duty alongwith interest and penalty confirmed against the appellant by the authorities below is proper and justified - since the entire duty alongwith interest is paid within one month from the date of receipt of the Adjudication Order, the benefit of reduced amount of penalty provided under Section 11AC of the Central Excise Act, 1944 should be available to the appellant - quantum of penalty reduced to 25% - appeal allowed - decided partly in favor of appellant.
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2016 (12) TMI 1460 - CESTAT NEW DELHI
CENVAT credit - whether the appellant is entitled to avail Cenvat Credit in respect of input services used in the mine area which is outside the factory premises or not? - Held that: - The said issue came up before the Hon’ble High Court of Bombay in the case of CCE Aurangabad Vs. Endurance Technology Pvt. Ltd. [2015 (6) TMI 82 - BOMBAY HIGH COURT] wherein it was held that Rule 3 and 4 provide that any input or capital goods received in the factory or any input service received by manufacture of final product would be susceptible to CENVAT credit. Rule does not say that input service received by a manufacturer must be received at the factory premises.
The appellant has received certain input services in their search and development unit, although the same is located outside the factory premises but these services are ultimately used for manufacturing of final product. Therefore, these services are in relation to manufacturing of their final product - credit allowed - appeal allowed in favor of appellant.
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2016 (12) TMI 1459 - PUNJAB & HARYANA HIGH COURT
Maintainability of appeal - Section 35G of the Central Excise Act, 1944 - issue involved is of rate of duty - Held that: - As the issue involved in the present appeals is pertaining to the rate of duty with reference to exemption under N/N. 1/93-CE dated 28.02.1993, we find that the present appeals are not maintainable before this Court - appeal not maintainable - liberty to the appellant to avail of its appropriate remedy - appeal dismissed - decided against appellant.
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2016 (12) TMI 1458 - CESTAT MUMBAI
Valuation - inspection charges - The inspection agency is deputed by the customer/government body. Payment for such inspection are paid by the customer directly to the inspecting agency. However, in few cases the payment of inspection charges was made by the respondent to the inspecting agency on behalf of the customer and subsequently such payment was collected as reimbursement - whether inspection charges to be included in assessable value?
Held that: - As per Section 4, any amount which is paid or payable on behalf of the goods will form the transaction value. In the present case, as per the contract, the respondent is not under obligation to undertake the inspection and bear the expenses thereof. As regards the inspection it is a contract between the inspection agency and the customer and the payment transactions invariably made between both of them. Therefore, in few cases, whatever payment was borne by the respondent, for the inspection, the same was collected from the customer as reimbursements which cannot form part of transaction value as the subject amount is not paid or payable on account of sale of goods.
Reliance placed in the case of Commissioner of Central Excise, Raipur v. Bhaskar Ispat Pvt. Ltd. [2004 (3) TMI 102 - CESTAT, NEW DELHI], where it was held that cost of additional testing conducted at customer s request and borne by the customer is not includible in the assessable value of the goods.
The inspection charges is not includable in the assessable value - appeal dismissed - decided against Revenue.
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2016 (12) TMI 1457 - CESTAT NEW DELHI
Recovery of interest and penalty - revision of prices of manufactured goods - duty not paid on revised prices - on pointing out duty was paid - time bar - whether, extended period of limitation in terms of the Proviso to Section 11A ibid can be invoked for recovery of interest on delayed payment of principle amount; and penalty can be imposed where there is no element of suppression, fraud, misstatement etc, with intent to evade payment of duty? - Held that: - this Tribunal in the case of Emco Ltd. [2012 (4) TMI 609 - BOMBAY HIGH COURT], has held that period of limitation not only applies to the principle amount but also the same applies for recovery of interest - interest liability confirmed in the impugned order will not stand for judicial scrutiny.
Imposition of penalty u/r 25 read with Section 11AC of the Central Excise Act - Held that: - the authorities below have not specifically brought on record any evidence regarding the malafides on the part of the appellant to defraud the Government Revenue. Since Rule 25 ibid is subject to the provisions of Section 11AC ibid, which clearly provides that in case of fraud, collusion, willful misstatement, suppression of facts, equal amount of penalty shall be imposed, and in absence of any specific findings to that effect by the authorities below, I am of the view that penalty imposed in the adjudication order and confirmed in the impugned order is not sustained in the eyes of law.
Demand of interest and penalty set aside - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1456 - CESTAT ALLAHABAD
Misdeclaration of value - Interest - Penalty - Rule 6 of the Valuation Rules, 2000 - Held that: - it is an admitted case of revenue that the appellant have not brought the bought out items in their factory of manufacture and it is further admitted fact that the control panels are not cleared along with bought out items from the factory of manufacture - Under the facts and circumstances that the appellant have placed the orders on third-party vendors for supply of the bought out items directed to their customers and have paid the applicable sales tax/VAT, the same does not attract levy of excise duty - It is an admitted fact that the bought out items have never entered the factory premises of the appellant so as to become part of the manufactured control panel nor the same have been cleared along with the control panels - Appeal allowed - decided in favor of the assessee.
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2016 (12) TMI 1455 - CESTAT MUMBAI
CENVAT credit - input service distributor - denial on the ground that ISD could avail credit only in respect of input services received at its own address - Held that: - I find that the Pune marketing office of the appellant is registered as ISD and it was availing credit of various services availed by marketing office located at Aurangabad, Ahmednagar, Jalgaon, Nasik, Beed etc - It can be seen that sales promotion, marketing research are specifically covered in the inclusive part of the definition of input. In these circumstances, the credit availed by the appellant in the various offices would qualify as input service.
Whether the credit can be availed if the documents are not addressed to the ISD but to its offices not registered as ISD? - Held that: - I find that the input services received by the respondent are entitled to be taken credit. It is not restricted to the input services received by the respondent at their factory. Input services received by the appellant at its Head Office or other offices are also eligible for credit and the facility of ISD has been granted to facility taking of such credit.
Reliance was placed in the decision of the case of Doshion Ltd. [2012 (10) TMI 952 - CESTAT AHMEDABAD], where it was held that The omission to take registration as an Input Service Distributor can at best be considered as procedural irregularity, credit available.
Credit allowed - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1454 - CESTAT BANGALORE
SSI exemption - use of brand name and the logo belonging to K. Dhandapani and Co., who were claimed to be traders and not manufacturers, by appellant - Held that: - the appellants have used the brand name and the logo belonging to K. Dhandapani and Co. and they have not declared the same in their classification and therefore they have concealed the factual information from the department and therefore they are not entitle to SSI exemption.
Imposition of penalty - as per the provisions of law if the interest and penalty is deposited within 30 days from the date of the order then the proceedings shall stand concluded and the appellant is not required to pay the equal penalty - the appellant has deposited 14,17,640.28 before the issue of show-cause notice and the same was appropriated by the Order-in-Original and the learned Additional Commissioner has given them the opportunity to deposit the penalty of 25% along with interest within 30 days and the appellant has deposited the same within the stipulated period and therefore penalty not imposed.
Appeal disposed off - decided partly in favor of appellant.
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2016 (12) TMI 1453 - CESTAT MUMBAI
Valuation - Ethion Technical - clearance of goods to sister concern - captive consumption - duty to be paid in value by considering the cost of production and profit margin as held by Revenue is correct or the duty paid by appellant on transaction value is justified? - whether the assessable value which has been considered by the appellants for the clearances made to their sister concern is correct or otherwise and whether the demand is untenable due to the revenue neutrality of the issue involved or otherwise? - extended period of limitation.
Held that: - It is undisputed that the product in question is cleared to their own sister concern and the sister concern is eligible to avail the cenvat credit of the duty paid by the appellant. If that be so, there cannot be any mens-rea attached to the clearances made by the appellants to the sister concern and discharge of duty by adopting a particular assessable value. The law is fairly settled on this issue inasmuch that if the clearances are made to their own sister concern and if other unit is eligible to avail cenvat credit, there cannot be any intent to evade central excise duty - In view of the revenue neutral situation, in the facts and circumstances of this case, it is held that the demand and the interest liability is unsustainable in respect of the product in question Ethion Technical.
As regards the penalty imposed by the adjudicating authority, we are of the view that appellant could have entertained a bone fide belief that they have to discharge the duty liability of the goods cleared to their sister concern, on the value of the clearances made to independent buyers - Since the issue is of interpretation, we find that there is no necessity to visit the appellant’s with penalty for the duty liability discharged by them as recorded hereinabove - penalty set aside.
Appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1452 - CESTAT MUMBAI
Duty on intermediate goods - Phosphoric Acid - manufacture of Sodium Tripoly Phosphate (STPP) and cleared without payment of duty under N/N. 49/94-CE(NT) dt. 22.9.1994 - demand of duty on intermediate product on the ground that the final product is exempted from whole of the duty of excise - Held that: - the appellant have cleared the final product against CT-2 certificate issued by the buyer of the goods in terms of N/N. 49/94-CE (NT). As per this notification the goods supplied by the appellant is meant for use in the export goods - from the conditions of notification it is clear that the goods supplied by the appellant is meant for use in the export goods. Moreover the supplies under N/N. 49/94-CE(NT) is against the advance licence to the holder of the advance licence. This supplies are also treated as deemed export in terms of Export and Import Policy. For all this reasons the supplies made by the appellant under bond which is meant for use in the export goods cannot be treated at par with the non duty paid goods or exempted goods.
The final product supplied by the appellant against CT-2 certificate cannot be treated as nil duty or exempted goods. In such a case the intermediate goods will be entitled for N/N. 67/95-CE, hence the demand on the intermediate product i.e. phosphoric acid is not tenable - appeal allowed - decided in favor of appellant-assessee.
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2016 (12) TMI 1451 - CESTAT MUMBAI
Valuation - value of duty paid on chassis to be included in assessable value or not? - benefit of exemption N/N. 6/2003 dated 01/03/2003 and N/N. 241/86 dated 03/04/86 - Held that: - there is no substantial difference between the language of two notifications and therefore, the decision of the Tribunal in the case of Rubi Coach Builders Ltd. [1998 (11) TMI 309 - CEGAT, NEW DELHI], relied upon in the impugned order and the clarification issued by CBEC vide Circular No.350/3/86-TRU dated 10/12/86 is equally applicable to the instant case - it was held in the case of Rubi Coach Builders Ltd. that duty of excise paid on chassis was excludible from the assessable value of the motor vehicle if Modvat credit was not availed on the chassis - duty of excise paid on chassis is excludible - appeal rejected - decided against Revenue.
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2016 (12) TMI 1450 - CESTAT NEW DELHI
Cenvat credit - Penalty - Held that: - In the case of C.C.E., Jaipur sv. Rajasthan Spinning & Weaving Mills [2010 (7) TMI 12 - SUPREME COURT OF INDIA] wherein it was held that Applying the "user test" on the facts in hand, we have no hesitation in holding that the steel plates and M.S. Channels, used in the fabrication of chimney would fall within the ambit of "capital goods" as contemplated in Rule 57Q - Appeal allowed.
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2016 (12) TMI 1449 - CESTAT BANGALORE
Cenvat credit - Business Auxiliary Service, Consultancy Engineering, IT enabled services - Held that: - the impugned order is not sustainable in law as the same has been passed without appreciating the definition of input services as contained in Rule 2(l) of CCR, 2004 and also without considering the judgments passed by higher judicial fora holding these services as input services - the impugned order is not sustainable in law and all the services on which Commissioner (A) has rejected the refund fall in the definition of input services - Decided in favor of the assessee.
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2016 (12) TMI 1448 - CESTAT MUMBAI
Refund - Notification No. 51/2003-CEX (NT) dated 06.08.2003 - Held that: - The ratio of Hon'ble Tribunal's order in the case of M/s. Silwester Textiles Vs CCE [2003 (5) TMI 305 - CESTAT, MUMBAI] is applicable in this case.. Moreover, the Section 11C(2) of CEA '44 provides that refund application should be filed within six month from the date of issue of Notification. The respondent has filed refund application within six months from issue of Section 11C notification dated 06.06.2003 and even otherwise also refund claim could be treated under Notfn. No. 84/03 - CE (NT) dated 31.12.03. Thus, there is no time bar in present refund claim if looked into above angle also - Appeal dismissed - decided in favor of the assessee.
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2016 (12) TMI 1447 - RAJASTHAN HIGH COURT
Rebate - Rule 18 of the Central Excise Rules, 2002 - Time limitation - Held that: - In the case in hand it is not in dispute that the shipping bill itself was delivered to the petitioner after a lapse of one year and the petitioner after having the same filed the application to have rebate at earliest - In absence of shipping bill it would have not been possible for the claimant to make an application in accordance with law to claim the rebate as per Rule 18 of the Rules of 2002. In view of it, we are of considered opinion that no justification was available with the respondents to reject the claim application without examining its merits.
So far as the interpretation of Section 11-B of the Act of 1944 is concerned, no doubt that the golden principle of interpretation, at the first instance, is always required to be applied while interpreting a statute, but in relation to the provision in question it would be appropriate to notice that it mentions the ‘date relevant’ and further that a claim application can be filed by placing relevant documents alongwith it, as such, the provision is not conveying the simple meaning, as learned counsel appearing on behalf of the respondents want to put forth - decided in favor of the assessee by way of remand.
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2016 (12) TMI 1446 - MADRAS HIGH COURT
Evasion of duty - Underbilling - Penalty - Whether the Appellate Tribunal was justified in sustaining the penalty on the partner and partnership Firm simultaneously under Central Excise Act, 1944? - Held that: - In the case of Textoplast Industries and Anr. Versus Addl. Commissioner of Custom [2011 (7) TMI 402 - Bombay High Court], it has been held that for the purpose of imposing penalty, the adjudicating authority under Customs Act, 1962 may in an appropriate case impose a penalty both upon a partnership Firm as well as on the partners and whether the facts and circumstances of a case warrant imposition of penalty both on the Firm and its partners should be decided on the facts of each case.
In the considered opinion of the Court, in the light of the above cited judgments, penalty on the partner as well as the partnership Firm can be simultaneously imposed and of course, imposition of penalty both on the Firm and its partners, depends upon the facts of each case - Appeal dismissed.
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2016 (12) TMI 1445 - CESTAT HYDERABAD
Cenvat credit on raw material - NNo.214/86-CE - Interest - Penalty - Held that: - It is the case of appellant that mentioning the notification number was due to mistake and as the invoices specifies the excise duty, the mention of notification number is not of much relevance. It is also not disputed that appellant has not filed an undertaking complying with the condition laid in the Notification No.214/86 so as to avail the exemption - The job worker has paid duty in the instant case and the appellant has availed credit on the said duty - Decided in favor of the assessee.
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2016 (12) TMI 1444 - CESTAT MUMBAI
Reversal of CENVAT credit - Interest - Penalty - Held that: - conclusion arrived at by the Commissioner (Appeals) that the invoice No.s147, 148 & 151 dated 16/10/97 are not for reversal of duty on the pipes but are for some different products is fair and justified.
As regards the demand for reversal of credit on capital goods - Held that: - the certificate of the Chartered Accountant is not based on the visit of the CA to the factory but it is based on the books of accounts and the balance sheet. The credit cannot be allowed simply on the basis of the entry made in the books of accounts without actual receipt of the goods. The appellants have failed to produce any evidence to establish the said capital goods are available in the factory.
As regards the demand of scrap of ₹ 36,867/- I find that defence of the appellant is that there is no calculation given by the revenue as to how they are arrived at the quantity. The revenue has relied largely on a submission by the appellant during earlier adjudication to assert that there has been some generation of scrap and admission of duty. I find that without any evidence, the demand of duty on scrap cannot be sustained - Appeal partly allowed.
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