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Central Excise - Case Laws
Showing 121 to 140 of 4718 Records
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2017 (12) TMI 1151 - CESTAT MUMBAI
CENVAT credit - inputs used by their sub-contractor in their factory for making various equipments - denial on the ground that the goods have been used by job workers and not by the appellant - Held that: - Rule 2 of the said Rules permits a manufacturer to take credit of specified duties paid on such capital goods received by the factory. It is apparent from the above Rules that there is no requirement for the manufacturer to purchase the said capital goods to avail cenvat credit. The only requirement is that he should receive the goods falling under the definition of capital goods in his factory. It is seen that the entire case is built on the assertion that the goods on which credit has been availed, whether invoice to job worker or the appellant, are used by the job worker for the erection of the plant/machinery/equipment specified in the show cause notice. It is apparent that there is no requirement under the Cenvat Credit Rules, 2002 for the manufacturer availing credit to himself purchase the goods.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1149 - CESTAT MUMBAI
CENVAT credit - whether the appellant is entitled for the cenvat credit on angles, channels, beams, nut-bolts, guides etc. used by them for fabrication of vertical storage structure, racks for storage of raw material and finished goods? - Held that: - This rack is used for storage of raw material and finished goods. The storage of goods in a manufacturing unit is very vital part for manufacture. Without storage system, material management is impossible and consequently it will adversely affect the entire manufacturing chain in the factory - since the steel items viz, angles, channels, beams etc used for making storage rack are used in or in relation to manufacture of final product, hence clearly eligible for cenvat credit.
The material used for storage system is eligible for cenvat credit - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1145 - CESTAT MUMBAI
Valuation - includibility - transportation/ freight charges - Held that: - even though it is not shown in the excise invoice but by raising the commercial invoice the freight amount has been separated from the total sale value, therefore irrespective of the fact that whether it is shown separately in the excise invoice or it is charged separately in the commercial invoice, it is one and the same thing - only due to non-inclusion of freight amount in the excise invoice the same cannot be included in the assessable value - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1133 - CESTAT CHENNAI
Intermediate goods - N/N. 67/95-CE dt. 16.03.95 - Department however took the view that duty is payable on intermediate products consumed captively in manufacture of the final products cleared without payment of duty to SEZ, since SEZ unit is not included in the condition for exemption - Held that: - the issue at hand is squarely covered by the case of M/s Ultratech Cements Ltd And Others Versus Commissioner of Central Excise And Service Tax, Tiruchirapalli And Others [2015 (10) TMI 1058 - CESTAT CHENNAI], which have unequivocally held that supplies made to SEZ / Developers by DTA unit are neither chargeable to Nil rate of duty nor exempt from payment of duty under exemption notification, hence they are not exempt goods for the purpose of Rule 2 (d) of Cenvat Credit Rules, 2004.
The appellants are very much entitled to the benefit of Notification No.67/95-CE in respect of intermediate goods used to manufacture final products which were supplied to a SEZ unit - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1092 - CESTAT CHENNAI
Clandestine removal - clearance of cone yarn under the guise of hank yarn clearances - evidence - cross eamination of witnesses - Held that: - the entire case of the Revenue was based upon the oral evidences in the form of statement of the buyers. He has observed that in as much as there is consistency in the said statements with regard to authenticity of the private records seized under mahazar on different date and details available therein, the same has to be given the status of evidence. It is well settled law that the statements can act as a corroborative evidence to the other independent evidences available on record and cannot by itself, be adopted as the sole evidence for holding against the assessee. In the present case, apart from the said evidences, the Revenue has failed to produce any other evidence to show that the appellant was clearing cone yarn under the guise of hank yarn and was indulging in any clandestine activities.
The Hon’ble Punjab & Haryana High Court in the case of Jindal Drugs Pvt. Ltd. Vs. Union of India [2016 (6) TMI 956 - PUNJAB & HARYANA HIGH COURT] have observed that the deponent of the statement are not only required to be produced for cross examination but examination in chief is also required to be undertaken by the adjudicating authority, in terms of the provisions of Section 9D(a) of the Central Excise Act. In the absence of the same, the statements have to be kept out of consideration and cannot be relied upon as an evidence. If that be so, the said statements cannot be considered to be an evidence and if taken out of the records, nothing survives for the Revenue to rely upon as an evidence - the demand of duty against M/s.Venus Cotton Mills Pvt. Ltd. along with imposition of penalty upon them is required to be set aside.
Penalty on Managing Director - Held that: - as we have set aside the penalty on the manufacturing unit, the penalty imposed upon the Managing Director is also set aside.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1091 - CESTAT NEW DELHI
Adjustment of excess paid duty with short paid duty - Intermediate goods - Appellant clears SSFA Noodles to its sister concerns located in tax exempted areas, who use such SSFA noodles in the manufacture of toilet soaps, which are cleared without payment of duty by availing area based exemption - Department was of the view that appellant will not be entitled to adjustment between short paid duty and excess paid duty, since no provisional assessments have been ordered in respect of the assessee.
Held that: - The goods have been cleared by the appellant to their own sister unit located in tax exempted areas. Consequently, the appellant is require to pay excise duty on goods so cleared. The basis of valuation is also required to be done in terms of Rule 8 of the Central Excise Valuation Rules, 2000 following the Cost Accountant Standards (CAS-4). It is not in dispute that valuation has been done properly as per CAS-4. However, such valuation has been done on the basis of CAS-4 certificate prepared on the basis of annual cost of production. The appellant has paid duty on a month to month basis on the basis of the cost of the goods for the previous month. When the valuation is finalised on an annual basis, there has been short payment of duty in some months as well as excess payment in other months. The appellant has already paid the excess duty wherever the value as per CAS-4 is more than the value adopted for payment of duty, but after adjusting the excess paid duty in other months. Such adjustment has not been permitted by the adjudicating authority even in the denovo adjudication.
An identical issue has been considered by the Tribunal in the case of Essar Steel India [2016 (9) TMI 1175 - CESTAT NEW DELHI], in which the Tribunal held that duty paid in excess in certain months has been availed as credit by sister unit hence, cannot be adjusted towards short payment also not tenable.
The appellant has claimed that they have already paid the short paid duty payable after deducting adjusting the excess. The adjudicating authority is directed to verify the same and recover only the differential, if any, after such adjustment.
Appeal allowed by way of remand.
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2017 (12) TMI 1090 - CESTAT MUMBAI
CENVAT credit - Rule 3(4A)(a) of the CCR, 2002 - credit is reversed while clearing the goods on commercial invoice - Held that: - Legislature has provided the rule keeping all the factors in mind. Any interpretation which makes part of the text of law for otios cannot be considered a proper interpretation - the interpretation that reversing the credit amounts to not taking credit at all would make proviso to Rule 3(4A)(a) of Cenvat Credit Rules, 2002 otios. In these circumstances such interpretation cannot be accepted.
Revenue neutrality - Held that: - Once the option to pay tax on the transaction value for certain goods is allowed it is possible that goods may be sold at a loss and therefore duty paid in respect of such goods can be less than the credit taken by the appellant. The proviso to the sub rule has been introduced to take care of such situation. It is possible for a dealer to misuse the rule by making the sale of loss making goods against the Cenvatable invoice and profit making goods by reversal of credit. In those circumstances there will be revenue loss.
Appeal dismissed - decided against appellant.
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2017 (12) TMI 1089 - CESTAT MUMBAI
Valuation - includibility - financial charge for release of payment immediately - case of department is that 1.9% discount given by appellant to Tata Motors Ltd. towards compensation of financial charges charged by their bankers for obtaining payment immediately is not a discount but an additional consideration received by the appellant - Held that: - this discount is nothing but prompt payment discount - the appellant have admittedly passed on this discount to the buyer Tata Motors Ltd. in their invoice for clearance of goods. 1.9% expenses incurred by Tata Motors Ltd. is an arrangement between them and the banker. The appellant have extended this discount since they have received the prompt payment instead of waiting for 89 days. Therefore the discount extended by the appellant cannot be part and parcel of the assessable value and the deduction on that account is admissible under Section 4(1)(a).
The discount of 1.9% cannot be included in the assessable value - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1088 - CESTAT MUMBAI
Penalties - CENVAT credit - fictitious supplier - job-work - Held that: - the supplier on record did not exist and that appellant had availed credit on receipt of goods that were not supported by documents prescribed as evidence of payment of duty - At the same time, while the invoices may have been found to fake, there is no evidence that goods have not been received or that they have in anyway infringed the law to render them liable for confiscation. The appellant has also made good the credit wrongly availed. Their contention that there is no evidence of any attempt on their part to evade duty cannot be disregarded - Penalties set aside - appeal allowed.
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2017 (12) TMI 1087 - CESTAT NEW DELHI
Valuation - inclusion of cost of motor vehicles chassis - appellants paid sales tax / VAT on the body building charges only and not on the motor vehicles manufactured and cleared by them - Department is of the that the valuation should be taken under Rule 10A of the Valuation Rules, 2000 - Held that: - issue decided in the appellant own case Kamal Coach Works Pvt. Ltd. Versus C.C.E., Jaipur [2017 (1) TMI 533 - CESTAT NEW DELHI], where it was held that similar issue has come up before the Tribunal in the case of Audi Automobiles vs. C.C.E., Indore [2009 (5) TMI 426 - CESTAT, NEW DELHI], where the condition of interest and demand of duty was sustained and penalty was set aside and was held that the said firms had cleared the goods in relation to the body fabricating and mounting on the chassis which were supplied to the said firms free of cost by the manufacturer of chassis. Being so, the activity for the purpose of valuation would squarely fall under Rule 10A and not under Rule 6.
Penalty - Held that: - it appears on higher side - keeping in mind the doctrine of equity and justice, we modify the impugned order and reduce the penalty to 50%.
Appeal allowed in part.
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2017 (12) TMI 1086 - CESTAT ALLAHABAD
Clandestine removal - the stocks of finished goods as well as raw materials were not entered in the record up-to-date - Section 11AC of the CEA, 1944 - Held that: - undisputed facts are that the records of finished goods and records of raw materials, including inputs was not maintained from 18/08/2013 to 04/09/2013. It is undisputed fact that finished goods valued at ₹ 30,87,050/- were available in the factory which were not entered into RG-1 register and raw materials valued at ₹ 40,33,338/- were available in the factory which were unaccounted for - It is very clear from the provisions of Rule 25 that provisions of said Rule are subject to provisions of Section 11AC of the CEA, 1944. In the SCN or during the whole proceedings Revenue has not established that provisions of Section 11AC were applicable in the present case.
Appeal dismissed - decided against Revenue.
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2017 (12) TMI 1085 - CESTAT MUMBAI
CENVAT credit - removal of capital goods to sister units - Rule 4(5) (a) of CCR - Held that: - once the capital goods is cleared under Rule 4(5)(a), the same was supposed to be returned back within 180 days. If the assessee is not in a position to bring it back within 180 days, they are supposed to reverse the cenvat credit availed on such capital goods - In the facts of the present case, the removal of capital goods were taken place under Rule 4(5) (a) for the year 13.10.2006 and 4.4.2007. However the same was not returned back within 180 days, the Cenvat credit was required to be reversed, hence the appellants are failed to do so - appeal dismissed - decided against appellant.
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2017 (12) TMI 1084 - CESTAT ALLAHABAD
Jurisdiction of adjudicating authority - goods manufactured in the state where the adjudicating authority had no jurisdiction - Held that: - it is established beyond doubt that the goods in question were duty paid and not manufactured by respondent and since the said goods were duty paid and not manufactured within the jurisdiction of Adjudicating Authority. He had no jurisdiction to deal with them and, therefore, the order passed by learned Commissioner (Appeals) is sustainable.
The goods in question were duty paid and they were manufactured by manufacturers in Maharashtra, Karnataka and Uttar Pradesh and they were not manufactured by the respondent. Further, since duty of Central Excise was discharged, they were no more excisable goods. Therefore, the Adjudicating Authority did not have any jurisdiction over them.
Appeal dismissed - decided against Revenue.
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2017 (12) TMI 1083 - CESTAT NEW DELHI
Refund claim - goods cleared after payment of duty, was subsequently banned - Held that: - it is an admitted fact that the goods were cleared after paying the excise duty. The goods were meant exclusively for the purpose of export. Due to legal ban as per the directions of the Hon’ble Supreme Court everybody becomes helpless and finally the goods have become non-marketable. The assessee-Respondents have suffered a loss due to the ban. The Commissioner (Appeals) has rightly order to refund the claim of the duty which was paid by the assessee-Respondents - appeal dismissed - decided against Revenue.
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2017 (12) TMI 1082 - CESTAT ALLAHABAD
CENVAT credit - proportionate Cenvat credit on account of exempted services - liability on interest - Electric Generating Set - Held that: - it has not been disputed that the appellant had sufficient balance in their Cenvat register, which amount was subsequently reversed, on being objected by the audit. Further it has been provided by way of amendment vide N/N. 18/2012-CE (NT) dated 17/03/2012 that no interest is chargeable upon subsequent reversal of the credit, if the assessee is able to demonstrate that they had not utilized the credit. The period of dispute in the present appeals is 2011-12 and 2012-13 - under the provisions of the amended Rule 14 of CCR, 2014 the same shall have retrospective effect and under the admitted fact that they have not applied the credit. I hold that they are not liable to pay interest.
CENVAT credit - Electric Generating Set - Held that: - It is admitted fact that there is no stay granted by the Hon'ble Gujarat High Court against the order of the Tribunal. In this view of the matter, I find no merits in the appeal of the revenue.
Appeal allowed - decided in favor of appellant-assessee.
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2017 (12) TMI 1081 - CESTAT ALLAHABAD
Clandestine removal - pig iron - evidences - penalty - Held that: - the allegation appears to be presumptive, as the investigating officers have not stated a single instance, the name of the party etc. to whom Pig Iron was sold by the appellant, M/s Goyal. The allegation of sending of consignment of pig iron by M/s Apparent Iron & Steel Pvt. Ltd. Goa, is also presumptive - Mr. Onkar Nath Goyal had retracted his statement recorded on 09th March, 2005 and the same cannot be weighted for imposition of penalty.
Confession cannot form of levy of Excise duty, much less retracted statements.
Penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1080 - CESTAT MUMBAI
CENVAT credit - input services - Intellectual Property Services - Repair and Maintenance (Civil Work) services - Membership Subscription Charges - Telephone Services - Insurance services - Development Charges - freight charges - denial on account of nexus - Held that: - When analysis is made to the scope of Rule 2(l) of the Cenvat Credit Rules, 2004, that demonstrates the legal position as contended by appellant stated herein before. Appellant says that documents were available on record and those were ignored by learned Commissioner (Appeals) without calling the record from learned adjudicating authority, is nothing untrue. He did not assign any reason to reject integral connection of input services to the manufacture. Therefore in absence of reasoning in the order and also for the lack of verification of record, appellant should not suffer - Ld. adjudicating authority shall re-examine as to whether the freight charges paid were in terms of contract for delivery at the destination following guidelines given by the Board Circular aforesaid and pass appropriate order.
Appeal allowed in part by way of remand.
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2017 (12) TMI 1079 - CESTAT ALLAHABAD
Liability of interest - whether the appellant is liable to pay interest for alleged late payment of duty under the fact that the packing machines were lying uninstalled and had been reinstalled after 5th of June and the duty for the month of June had been paid on 24th June, 2015, under the provisions of Chewing Tobacco & Unmanufactured Tobacco Packing Machines (Capacity Determination & Collection of Duty) Rules, 2010?
Held that: - the appellant is not liable to pay any interest for deposit of duty on 24/06/2015, under the admitted fact that the machine was uninstalled/closed from 1st June, 2015 to 19th June, 2015, and under such facts, it amounts to addition of a machine and the due date for payment of duty is 5th of the next month - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1078 - CESTAT ALLAHABAD
Nature of transaction - service or goods - transfer of rights and privilege of export of sugar quota - whether the transaction being, transfer of rights and privilege of export of sugar quota by the respondent assessee on receipt of consideration, whether the same is a service or transaction in goods?
Held that: - the transaction in question regarding sale of rights and privilege of export of sugar quota is sale of goods and no service is involved - reliance placed in the case of Vikas Sales Corporation and Another Versus Commissioner of Commercial Taxes and Another [1996 (5) TMI 363 - SUPREME COURT OF INDIA], where it was held that DEPB has an intrinsic value that makes it a market commodity. Therefore, DEPB, like REP licence qualifies as goods within the meaning of the sales tax laws of Delhi, Kerala and Mumbai and its sale is exigible to tax.
Appeal dismissed - decided against Revenue.
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2017 (12) TMI 1077 - CESTAT ALLAHABAD
Valuation - includibility - R & D expenditure - contention of Revenue was that the said t expenses on R & D should be considered u/r 8 of Central Excise Valuation Rules, 2000 and should be added with 15% as required under the said Rule - Held that: - Pre-condition in said Rule 8 is that it is applicable when the goods are not sold but consumed captively - SCN dated 30.11.2005 nowhere established that the goods were not sold but they were cleared on stock transfer basis without involvement of sale. There was no case of invocation of Rule 8 of Central Excise Valuation Rules, 2000 - penalties also not warranted - appeal allowed.
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