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Central Excise - Case Laws
Showing 81 to 100 of 3528 Records
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2016 (12) TMI 1443 - CESTAT MUMBAI
CENVAT credit - HR sheets, MS Angle, HR Plates, MS Flat, Channel Beams etc. - denial on the ground that the said goods do not qualify as capital goods in terms of the definition of capital goods given under Rule 2 of the Cenvat Credit Rules, 2004 - Held that: - the appellant has produced a C.A. certificate to assert that the said goods have been used for the inputs in the fabrication of Sand plant, Core sand plant, Mould handling system, Casting Cooling Conveyer etc. I have also gone through the contracts with certain parties in respect of installation of machines, the contracts involved certain fabrication work of structures to be done by the appellant - a Chartered Engineer's certificate has been given by the Chartered Engineer without going into the detail of the contracts.
The facts regarding quantum of use of inputs in the fabrication of the part components and accessories of the machines needs to be quantified and credit to that extent needs to be allowed - appeal allowed by way of remand.
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2016 (12) TMI 1442 - CESTAT MUMBAI
Benefit of N/N. 49/2008-CE(NT) - liquid cleaners - the goods were classifiable under Heading No.3402 but are not eligible for benefit of Notification, holding that there is a distinction between the descriptions appearing under the said Notification - Held that: - the issue is now squarely covered by the decision of the Tribunal in their own case Netway Home Products India P. Ltd. Versus Commr. of C. Ex., Bangalore-II [2016 (3) TMI 125 - CESTAT BANGALORE], where it was held that Sl. No. 40 does not cover organic surface active products, in liquid form and as such, their assessment to duty under Section 4A is not called for.
The classification and eligibility to the exemption Notification needs to be reconsidered in each and every case, is a fallacious argument which needs to be rejected outrightly, and it has to be reiterated that the judgment of the higher judicial forum has to be followed unless they are set aside - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1441 - GUJARAT HIGH COURT
SSI unit - wrongful availment of CENVAT credit - Rubber /Ebonite Roll - Held that: - Shri Chitan Dave appearing for the Department has filed an affidavit in the Civil Application to answer this contention of the petitioner. He has also produced xerox copy of the Registers of the concerned Department. Despite this position, the Court had called upon learned Advocate Shri Dave to personally verify the Registers and verify the claim made by the petitioner with regard to filing of the appeal before a wrong forum, to which Shri Dave states that he has personally verified the Inward Register maintained by the office where according to the petitioner the appeal was initially filed and has confirmed that such appeal was indeed filed before that authority. He therefore urges that he would not seriously object if the matter is remanded back to the stage of Commissioner (Appeals) - appeal allowed by way of remand.
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2016 (12) TMI 1388 - CESTAT MUMBAI
Classification of goods - Integrated Fixed Wireless Terminals CDMA-2000-1X (ETS 2288) - whether appellant is eligible to avail benefit of exemption notification no.6/2003-CE (Sr.no.264) for the CDMA WLL phones manufactured by them? - Held that: - the issue is no more res Integra. In the case of identically placed manufacturer from the same commissionerate, this bench in the case of Teracom pvt. Ltd. [2007 (10) TMI 47 - CESTAT, MUMBAI] going in to details as to how CDMA WLL and cellular phones functions, came to a conclusion that benefit of notification 6/2002-CE needs to be extended as the CDMA WLL phones function on cellular technology - The appellant assessee is eligible for benefit of exemption notification no. 6/2003-CE (sr.no.264) for the CDMA WLL phones cleared by them - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1387 - CESTAT ALLAHABAD
Valuation - the goods were sold for delivery at a place (the buyer’s premises) other than the place of removal (the factory gate) - whether the transportation charges to be included in assessable value or not? - Held that: - we find that freight have been charged separately and received separately. We also take notice that the buyers of the goods-State Electricity Board have issued purchase order specifying the price for the goods separately and also specifying the transportation cost on per Kilometer basis for the supply of goods. Accordingly, appellant have supplied and raised separate invoices for the price of goods and the transportation. Thus, it amounts to showing the cost of transport separately in the invoices - transport charges not includible in the value of the goods - appeal dismissed - decided against Revenue.
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2016 (12) TMI 1386 - CESTAT MUMBAI
CENVAT credit - forged invoices - time bar - Held that: - I find that there is no dispute that the Cenvat Credit availed by the appellant on the invoices were found to be fake. The appellant is duty bound to take reasonable steps while taking the Cenvat Credit. Therefore, the appellants are also responsible for availing the credit on the fake invoices - appeal dismissed - decided against appellant.
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2016 (12) TMI 1385 - CESTAT MUMBAI
Valuation - freight and insurance charges - adding to assessable value the freight and insurance charges recovered - Section 4 (3) (c) of Central Excise Act, 1944 - place of removal - if the 'sale' has taken place at factory gate of at the premises of buyers and consequently if the value of freight and transit insurance from factory gate to the premises of the buyer needs to be included in the assessable value or not?
Held that: - after 1/7/2000 there was no provision for considering any place, other than factory or any other place or premises of production or manufacture of the excisable goods or a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty, as 'place of removal'. In these circumstances there is no ease for considering any other place like the Depot or place of Consignment agent etc as 'place of removal' after 1/7/2000 - the appeals so far as they relates to period after 1/7/2000 have to be allowed.
However prior to 1/7/2000 the definition of 'place of removal' included 'a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory' as possible place of removal. Thus it was possible to consider any place other that factory or a ware house (where goods are permitted to be stored without payment of duty) as 'place of removal'.
Hon Supreme Court in the case of ISPAT INDUSTRIES LTD [2015 (10) TMI 613 - SUPREME COURT] has observed that 'the buyer's premises in law, be “a place of removal" under the said Section'. This categorical observation leaves no scope for any interpretation. The allegation that the buyers premises are the place of removal cannot, therefore, be sustained in view of these observations - appeal which relates to period prior to 1/7/2000 dismissed.
Appeal disposed off - decided partly in favor of assessee.
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2016 (12) TMI 1384 - MADRAS HIGH COURT
Whether the Appellate Tribunal was justified in sustaining the penalty on the husband of the dormant partner, while sustaining the penalty on the Partnership Firm? - Though his wife is the partner, for all practical purposes, he was acting on her behalf as the partner.
Held that: - The said issue is no longer res integra, in the light of the Full Bench judgment rendered by Bombay High Court in the case of M/s Amritlakshmi Machines Work, Mr. N.K. Bramchari, Managing Partner, M/s. Amritlakshmi Machine Works Versus Commissioner of Customs (Import) [2016 (2) TMI 57 - BOMBAY HIGH COURT], where it was held that Simultaneous penalties can be imposed on the firm and the partners under the Act and more particularly under Section 112(a) of the Act. However as the Act itself stipulates, the same would be subject to the parties proving that the contravention has taken place without their knowledge or despite exercise of all due diligence to prevent such contravention.
The first portion of Section 112(a) of the Act is only to make person of first degree in relation to the act or omission strictly liable. Persons who are not directly involved in the act or omission to act, which has led the goods becoming liable for confiscation cannot be made liable unless some knowledge is attributed to them - penalty can be imposed on dormant partner as well as on the firm.
Appeal disposed off - decided in favor of revenue.
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2016 (12) TMI 1383 - MADRAS HIGH COURT
CENVAT credit - tour operator service - rent a cab service - denial on the ground that tour operator and rent a cab services do not fall within the ambit of definition 'input services' specified under Rule 2(1) of the Cenvat Credit Rules, 2004 - Held that: - The scope of definition to the word includes has to be given a wider meaning and not a restricted meaning. The word includes denote in relation to manufacture or clearance of final products or in relation to providing an output service .All input services relating to 'activities relating to business' are eligible for service tax credit due to use of word 'such as' in the definition - availing of such services are necessary to the manufacture and transporting the workers to and fro from the factory is included under input services, in relation to the manufacture of excisable goods - credit allowed - appeal allowed - decided in favor of appellant-assessee.
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2016 (12) TMI 1382 - CESTAT MUMBAI
Benefit of exemption N/N. 06/2002-CE dated 01.03.2002 - Climbers - Thriller Range - denial on the ground that the goods not fall under the category of sports goods - Held that: - the products in question are Climbers and Thriller which are used for children's play & games and are installed in playground & gardens. As far as for small children, these are sports equipment for their play - The lower authorities have contended that the sports which are played nationally and internationally only are the sports and play of the children in garden and playground, are not sports which is not agreed. For every age there are different type of plays & games, small children's sports is the games and plays which they play in the garden with the use of these equipment, therefore these are the sports activity for the children
The equipment used in children's playground are falling under the classification of sports goods falling under Chapter 9506 as per Bureau of Indian Standards. Therefore there is no doubt that the product in question that being equipment used in children's playground are sports goods.
Benefit of notification available - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1381 - CESTAT AHMEDABAD
End use of product - polyester texturised yarn - 100% EOU - goods detained on the belief that the same were diverted to open market instead of being sent to M/s RTPL, a 100% EOU for its use - whether confiscation of the goods seized by the Department and imposition of penalty on the Appellant are proper or otherwise? - Held that: - even though the goods were cleared against AR-3As, but instead of its further use by M/s RTPL, diverted on its way - the Appellants are required to pay the duty involved - it is not necessary always to prove mens rea on the part of the Appellant, also the Appellant has not disputed their liability of duty on the goods cleared by them from the factory against AR-3As which ultimately had not reached the destination, where these goods were to be used by M/s RTPL, In these circumstances, there is contravention of the provisions of the Central Excise Act and rules made there under - confiscation and penalty directed under Rule 9(2) read with Rule 209(1) of erstwhile Central Excise Rules 1944, are sustainable.
However, the redemption fine and penalty imposed are excessive under the circumstances of the case. Consequently, considering the fact that the Appellant is a registered unit, the appropriation of entire Bank Guarantee amounting to ₹ 4,10,799/- on confiscation of goods is modified by reducing the fine to ₹ 1.00/- and penalty to ₹ 4.00 lakhs to meet the ends of justice - Further nothing has been brought on record by the Revenue to show that the Appellant is a habitual offender, warranting harsh action of confiscation of plants and machinery, confiscation of plants and machinery is set aside.
Appeal allowed - decided partly in favor of appellant.
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2016 (12) TMI 1380 - CESTAT BANGALORE
CENVAT credit - Security agency service received at the residence of the senior personnel of the appellant - training services - incineration services - denial on the ground that the same have been availed after the manufacture of the goods and all the services have no nexus with the manufacturing activity or with the provisions of any output service - Held that: - training and coaching services very much fall in the definition of input service as contained in Rule 2(l) of CENVAT Credit Rules and the said activity is directly and substantially related with the business of the appellant. In the absence of which, it will be difficult for the appellant to promote his business. Further, the incineration service is also an input service as the appellant is under a statutory obligation to dispose of the waste, failing which, he would attract penal consequences - on both the services, the appellant is entitled to CENVAT credit - credit on training services and incineration services allowed.
As regard to the security agency service, the learned counsel for the appellant did not press for CENVAT credit as the said security was provided at the residence of senior officer and the same has nothing to do with the manufacturing process - denial of CENVAT credit on security agency service upheld.
Appeal allowed - decided partly in favor of assessee.
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2016 (12) TMI 1379 - CESTAT MUMBAI
Reversal of credit - Subrule (3A) (a) of Rule 6 of Cenvat Credit Rules, 2004 - Rule 6(3)(ii) - whether the appellant is reqiured to reverse CENVAT credit availed under Rule 6(3)(ii), as claimed by the Revenue? - Held that: - as per amended Rule 6(3) (i) & (ii) read with subrule (3A), the option is available to the assessee whether to pay 10% of the value of the exempted goods or to pay equivalent Cenvat credit attributable to the input used in the exempted goods. The department has no say that which option has to be availed by the assessee.
In the present case the appellant have opted for payment of proportionate Cenvat credit in terms of Rule 6(3)(ii) of Cenvat Credit Rules, 2004, which in my considered view is not incorrect. At the most if any lapse is there that is, appellant have not given written option to the department. In my view it is only a procedural lapse and for such procedural lapse, appellant cannot be fastened with demand of 10% of the exempted goods - the payment made by the appellant themselves equivalent to the Cenvat credit attributable to the input used for the exempted goods is in order. therefore no further demand could have been made from the appellant.
Appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1378 - CESTAT MUMBAI
CENVAT credit - irregular availment - credit on invoices form certain dealer without receiving the goods - Held that: - On the identical facts and under same investigation in many other cases, demands were confirmed. On comparison with these cases disposed of by this Tribunal in particular Amar Ispat Pvt Ltd [2015 (11) TMI 373 - CESTAT MUMBAI], the facts, evidences and modus operandi of the appellants as well as in case of Amar Ispat Pvt Ltd are same therefore this case also can be decided only on the basis of decisions in above referred case - This Tribunal in case of Amar Ispat Pvt Ltd has considered all common facts and evidences and came to conclusion that it was case of fraudulent passing of Cenvat credit without receipt of input by the beneficiary - In the case of Amar Ispat Pvt Ltd decision important fact has been established that all the invoices issued by M/s. Jindal Iron & Steel Co. Ltd were issued in respect of scrap and addressed to the MITC Rolling Mills Pvt Ltd but goods were delivered to Viramgam based parties, are fake and without receipt and supply of the material. Thus appellant have availed fraudulent Cenvat credit.
The appellant have availed Cenvat credit fraudulently without receipt of the goods - appeal dismissed - decided against assessee.
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2016 (12) TMI 1377 - CESTAT MUMBAI
CENVAT credit - structural items such as M.S. structures, Plate, Flat, Angles, Channels, Bars and beam etc - penalty - denail of credit placing reliance in the case of Vandana Global Ltd Vs Commissioner of C.Ex. Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)], where Hon’ble Larger Bench has taken a view that even prior to 7/7/2009 when the explanation 2 of Rule 2(k) was inserted in the Cenvat credit Rules, 2004, it is clarificatory nature and had retrospective effect. As per the said amendment structural steel was explicitly excluded from the definition of input.
Held that: - much water has been flown on the issue as various High courts have either distinguished or overruled, the view taken by the Hon’ble Larger Bench in case of Vandana Global Ltd hence it is no more good law - reliance placed in the decision of the case of Chemplast Sanmar Ltd [2014 (9) TMI 535 - MADRAS HIGH COURT], where it was held that Cenvat credit is admissible on the structural steel, therefore Larger Bench decision in case of Vandana Global Ltd clearly stands distinguished, the entire foundation of the impugned order gets demolished - Cenvat credit is admissible on structural steel in light of the above referred judgments - the limitation aspect ignored - since credit allowed, penalty set aside.
Credit allowed - appeal allowed - decided in favor of assessee.
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2016 (12) TMI 1376 - CESTAT MUMBAI
Refund claim u/r 5 - assessee opted to avail full exemption by filing N/N.30/2004-CE dated 09/07/2004 w.e.f. 16/03/2005. At the time of opting out, the appellant had credit of AED (TTA) of ₹ 14,73,718/- to their credit - refund claim filed placing reliance on the case of Slovak India Trading Co. Pvt. Ltd. [2006 (7) TMI 9 - KARNATAKA HIGH COURT] where it was observed that Rule 5 of the Cenvat Credit Rules, 2002 does not expressly prescribed refund of unutilized credit where there was no manufacture in the light of closure of factory.
Held that: - in terms of the decision of larger bench, which has been given after examining the Decision of Hon’ble High court in case of Slovak, the respondents are not entitled to refund of accumulated credit lying in their accounts unless they are able to show that they are fulfilling the conditions prescribed u/r 5 of the Cenvat Credit Rules and the notification issued there under. The respondents have not done so - respondent not eligible for refund - appeal allowed - decided in favor of Revenue.
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2016 (12) TMI 1375 - CESTAT MUMBAI
CENVAT credit - H.R. Coils, M.S. Channels, Beams, Joists, hot rolled sheets, H.R. Sheet Coils - credit denied placing reliance on the judgment in case of Vandana Global Ltd Vs Commissioner of C.Ex. Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)], where Hon’ble Larger Bench has taken a view that even prior to 7/7/2009 when the explanation 2 of Rule 2(k) was inserted in the Cenvat credit Rules, 2004, it is clarificatory nature and had retrospective effect. As per the said amendment structural steel was explicitly excluded from the definition of input.
Held that: - much water has been flown on the issue as various High courts have either distinguished or overruled, the view taken by the Hon’ble Larger Bench in case of Vandana Global Ltd hence it is no more good law - reliance placed in the decision of the case of Chemplast Sanmar Ltd [2014 (9) TMI 535 - MADRAS HIGH COURT], where it was held that Cenvat credit is admissible on the structural steel, therefore Larger Bench decision in case of Vandana Global Ltd clearly stands distinguished, the entire foundation of the impugned order gets demolished - Cenvat credit is admissible on structural steel in light of the above referred judgments - the limitation aspect ignored.
Credit allowed - appeal allowed - decided in favor of assessee.
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2016 (12) TMI 1374 - MADRAS HIGH COURT
Waiver of penalty u/s 11AC of the Central Excise Act - no deliberate intention - failure to discharge duty, on account of confusion - Held that: - for the penalty to be imposed, the alleged suppression of fact must necessarily be coupled with intent to evade payment of duty - MS plates and MS angles have been used as accessories of other equipments to make such equipments to be used more effectively. When once the audit has raised an objection on the ground that MS plates and MS angles fall under chapter 72 of the Tariff Act, but not under chapters 82, 84,85 or 90, the respondent has reversed the credit availed. The respondent has reversed it, no doubt, on its own, because of unavailability of adequate quantity of Bauxite. Be that as it may. It has also paid the interest for the delayed part of reversing the credit - there is no willful intent to evade duty and hence the question of invoking the penalty under section 11AC would not arise - appeal dismissed - decided against Revenue.
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2016 (12) TMI 1326 - CESTAT MUMBAI
Rectification of Mistake - Held that: - The Bench while passing the final order dated 19.08.2015 has considered the entire issue in its proper perspective. In paragraph 8 the Bench has come to a conclusion and has recorded that the base frame is not an integral part of the pump, it is only an accessory to the pump - Application is rejected.
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2016 (12) TMI 1325 - CESTAT ALLAHABAD
Refund - Provisional assessment - Held that: - the proceedings of Provisional Assessment under Rule 7 of the Central Excise Rules, 2002 had not been completed in terms of the direction as contained in the finalisation Order where direction is given to the Range Officers to finally assess the monthly returns and determine the tax liability of the appellant - Appeal allowed - decided in favor of the assessee.
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