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Central Excise - Case Laws
Showing 41 to 60 of 4718 Records
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2017 (12) TMI 1431 - CESTAT ALLAHABAD
Clandestine removal - entire case of the Revenue is based upon the shortages of coloured tobacco detected at the time of their visit in the appellants’ factory - Held that: - It was not possible to convert 630 kgs coloured tobacco into marketable final product i.e. branded chewing tobacco and remove it within one day. It is settled law that he who asserts must prove his assertion by producing cogent evidence and/or producing witness. No evidence has been adduced to prove allegation of clandestine removal, therefore, even otherwise, the demand of duty and imposition of penalty are not justified.
Apart from the shortages, there is virtually no evidence on record to show the clandestine activities of the appellants - In the absence of any identification of the buyers, transporters, receipt of consideration etc., the findings of the clandestine activities cannot be upheld.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1430 - CESTAT ALLAHABAD
CENVAT credit - inputs not received - basic allegations in the Show Cause Notice was that M/s Arora Aromatics did not receive inputs on which they availed Cenvat credit basically on the contention of Revenue that M/s Ruchi Infotech System, Jammu did not have facility to manufacture the inputs received by M/s Arora Aromatics and that the goods did not move from Jammu & Kashmir to the appellants factory and therefore, Cenvat credit was not admissible.
Held that: - The present system of assessment in Central Excise is record based. The Officer assessing the duty is not required to be present when the goods are being manufactured to witness the process of manufacture. The adjudication is to be done on the basis of evidence produced before the Adjudicating Authority. As per Evidence Act evidence in totality is to be taken into consideration and therefore, finding recorded in the impugned Order by the Original Authority who passed the said Order dated 29/01/2010 is bad in law. The Original Authority did not understand the process either of assessments or of adjudication. Further the investigations were not undertaken to find out wherefrom the inputs were received by the appellant for the goods they manufactured and on which they paid duty and which were exported, if they had been received the inputs from M/s Ruchi Infotech System, Jammu or the other suppliers of inputs.
The Original Authority was pre-determined to adjudicate the matter in the manner in which he has decided the issue and he was not just and fair and did not discharge his duty as an independent adjudicator.
Demand set aside - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1429 - CESTAT ALLAHABAD
Refund claim - CBEC Board’s Circular No.120/01/2010-ST dated 19/01/2010 - Whether the Commissioner (Appeals) have rightly set aside the impugned Order-in-Original and remanded the matter back with the direction to consider the matter afresh on the basis of all the documents/information, by giving opportunity of hearing?
Held that: - CBEC Board’s Circular No.120/01/2010-ST dated 19/01/2010 categorically clarified that irrespective of when the credit was taken, the refund should be granted if otherwise in order - there is no error in the finding of the Learned Commissioner (Appeals) wherein he have directed the Adjudicating Authority to reconsider the refund claim in accordance with law, more particularly in view of Board Circular which have been issued subsequent to the passing of the Order-in-Original - appeal dismissed - decided against Revenue.
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2017 (12) TMI 1428 - CESTAT ALLAHABAD
100% EOU - CENVAT credit - whether Cenvat Credit taken by them can be disputed by the Revenue without issuing show cause notice under the provisions of Rule 14 of CCR, 2004 read with Section 73(i) of the Finance Act? - Held that: - the eligibility to Cenvat Credit cannot be challenged without issue of SCN under the CCR as the provisions of the FA read with CCR provide for an issue of SCN under Rule 14 of CCR, 2004 read with Section 73(i) of the Finance Act or Section 11 A of the Excise Act - In the instant appeals admittedly no SCN have been issued for disallowance of Cenvat Credit - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1375 - CESTAT CHENNAI
CENVAT credit - fake documents - it appeared to the department that assessee, DAPL had only procured cenvatable invoices without movement of goods and hence cenvat credit availed on the basis of those documents was inadmissible - non-existence of depot address shown in the invoices - Held that: - it is not the case that SAPL did not have any depot at all in Bangalore, only omission is that though they had changed their depot address, the invoices continued to reflect the earlier address - It is also not in dispute that DAPL had indicated in their books of account and inventory records that they had received the MS ingots against the invoices issued by DAPL.
In any allegation that raw material has not been received and there was only paper transaction of invoices for availing cenvat credit, the absence or for that matter, shortage, of raw material in the factory premises is relevant fact to corroborate and support any such allegation. No shortage of inputs is alleged at the time of visit of officers. At the same time, there is also no dispute that DAPL were, in fact, manufacturing and clearing angles and channels after conversion of the MS ingots on payment of duty. When this is so, there has to be some source of supply of raw material.
Apart from these unfounded evidences and uncorroborated facts which are the main basis of the SCN, the department has also, to a large extent, relied upon the statements of manufacturers of the appellants - none of these persons whose statements were recorded have been cross examined.
The department has not been able to satisfactorily establish the allegations made in the SCN - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1374 - CESTAT CHENNAI
Refund claim - Valuation - finalization of provisional assessment - Held that: - Today, when the matter came up for hearing, on behalf of the appellant, Ld. Advocate Shri M. Karthikeyan submitted that the said order passed by Tribunal granting refund to M/s.Grasim Industries is sub-judice before the Hon'ble Apex Court in the appeal filed by the department - the matter requires to be remanded to the Commissioner (Appeals) to await the judgement of the Hon'ble Apex Court in the matter of appeal filed by department against the Tribunal's order cited supra and then to decide the issue thereupon on merits - appeal allowed by way of remand.
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2017 (12) TMI 1373 - CESTAT CHENNAI
SSI Exemption - clubbing of clearances - dummy unit - it was alleged that SSI exemption benefit availed was ineligible to the appellant and that the value of clearances of appellants should be clubbed with that of CHFE - Held that: - From the initial adjudication proceedings and upto the proceedings which culminated in the impugned order, appellants have maintained that CHFE was actually existing and had provided documents like registration under the Companies Act as also with the Sales Tax and Income Tax Departments - non-issue of SCN to a dummy unit will undermine the entire proceedings - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1372 - CESTAT CHENNAI
CENVAT credit - input service - Department took the view that appellants have availed ineligible input service credit of tax paid attributable to non-manufacturing activities mainly in respect of sales commission and other input services like, advertisement charges, audit fees, bank charges, cleaning charges etc. - Held that: - It is very common that part of the manufacture is given to the job worker on the basis of design and drawing supplied, as in this case. Job workers are not responsible for the marketing or sales of the goods, that has to be looked after by the appellants only. Hence input services like sales commission etc. are very much eligible input services in terms of Rule 2(l) of CCR during the period under dispute - there cannot be any denial of input service credits availed by the appellant - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1371 - CESTAT ALLAHABAD
Clandestine removal - It appeared that the appellant had been supplying laminated sheets of 3mm thickness to Railways and the quantity supplied was much in excess to that, which were shown to have been manufactured in the factory - it was also alleged that some supplies were made to Railways, were not covered by gate pass issued from factory - rejection of cross-examination - Held that: - the appellant was prevented due to sufficient reasons and genuine reasons from making a proper representation at the adjudication proceedings, as they were not having access to their own records at the relevant time, which were lying under seizure or possession of PICUP - also, sufficient reasons have not been assigned for denial of cross examination.
Matter remanded back to the file of the adjudicating authority with directions to pass a reasoned order, after hearing the appellant, including providing of opportunity to cross-examine the witnesses necessary in support of their contentions - appeal allowed by way of remand.
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2017 (12) TMI 1370 - CESTAT NEW DELHI
Extended period of limitation - penalty - Clandestine removal - Valuation u/s 4A of CEA - Held that: - The authorities below have upheld and appropriate duty paid by resorting to invocation of the extended time limit provided in Section 11A. Whenever demand is confirmed on the basis of such allegations, the penalty payable under Section 11AC becomes automatically payable - reliance placed in the case of M/s Rajasthan Spinning and Weaving Mills Ltd. [2009 (5) TMI 15 - SUPREME COURT OF INDIA], where it was held that Once the conditions specified u/s 11AC of the Central Excise Act are satisfied, penalty becomes mandatory and there is no scope of discretionary power - the duty demand with interest as well as the penalty imposed on the assessee are upheld.
Penalty u/r 26 on Sh Sanjay Bhatia, Director of the assessee - Held that: - penalty imposed on Sh Sanjay Bhatia, Director of the assessee under Rule 26 of the Central Excise Rules, 2002 is not justified and is set-aside.
Appeal allowed in part.
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2017 (12) TMI 1369 - CESTAT NEW DELHI
Valuation - MRP based valuation u/s 4A - branded and unbranded readymade garments (RMG) falling under sub-heading 6204 69 90 of Central Excise Tariff Act, 1985 - Confiscation on the ground of failure to affix MRP on the branded readymade garments - Held that: - Only such goods can be notified under Section 4A in relation to which the retail sale price is required to be declared on the package under the provisions of Legal Metrology Act, 2009. The goods which are covered for assessment u/s 4A have been notified by the Government from time to time under N/N. 49/2008 CENT dated 24-12-2008(as amended) - on a perusal of this notification it is seen that readymade garments are not specified in the said notification leading to the conclusion that at the relevant time, these goods were not covered under Section 4A - confiscation set aside.
The duty is liable to be paid on the subjected goods by considering assessable value of such branded goods at the rate of 60 per cent of the retail sale prices in terms of the Tariff Value fixed by the Government as per N/N. 8/2001/CE(NT) dated 1-3-2001 as amended by N/N. 20/2001 dated 30-4-2001 - Since, the goods have been manufactured during the period when duty was liable to be paid on RMG with brand name, the duty demand amounting to ₹ 2,25,371 raised by the lower authorities under Section 11A of the Central Excise Duty Act, 1944 are to be upheld - The penalty imposed on M/s Om Sai Garments as well as M/s Om Sai Traders are also upheld.
The penalty on Shri Rajiv Khera imposed under Rule 26 is set aside since penalty already stands imposed on the firm.
Appeal allowed in part.
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2017 (12) TMI 1368 - CESTAT NEW DELHI
Clandestine removal - 249.90 MT of ingot - submission of the appellant is that the demand cannot be confirmed on the appellant only on the basis of 3rd party documents - Held that: - it is clear that the entire quantum of ingots figuring in the records of M/s. Allianz have been admitted to have been received in the premises in the appellant. It is settled position of law what is admitted is not required to be proved with mathematical precision.
The penalty of ₹ 10 lakh imposed on Sunil Bansal, Director under Rule 26 is on the higher side, Penalty reduced to 50% - appeal allowed in part.
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2017 (12) TMI 1367 - CESTAT NEW DELHI
Levy of penalty - duty demand with interest paid before issuance of SCN - Held that: - duty is paid before the issuance of SCN, so, penalty under Section 11AC of the Central Excise Act 1944 and Rule 25 of Central Excise Rules cannot be imposed - reliance placed in the case of CCE, Rohtak vs. S.B. Packaging Ltd. [2007 (3) TMI 194 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH], where it was held that Penalty equivalent to disputed duty amount under Section 11 AC of Central Excise Act,1944 is not leviable where disputed duty amount is deposited prior to issue of SCN - penalty set aside - duty sustained - appeal allowed in part.
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2017 (12) TMI 1366 - CESTAT NEW DELHI
CENVAT credit - sulphuric acid, a by-product - Sulphuric acid which was supplied to the fertilizer unit, no duty was paid and exemption was claimed as per N/N. 8/96 dated 23/07/1996; N/N. 6/2002 dated 01/03/2002; and N/N. 4/2006 dated 01/03/2006; N/N. 12/2012 dated 17.03.2012 - demand of 5%,6%,8%,10% of the value of Sulphuric Acid u/r 57CC of the CER, 1944 and Rule 6(3) of the CCR, 2004 - Held that: - identical issue decided in the appellant own case Union of India & Others Versus M/s. Hindustan Zinc Ltd. [2014 (5) TMI 253 - SUPREME COURT], where it was held that the requirements of 57CC were fully met in the way in which the Respondent was maintaining records and inventory and the mischief of recovery of 8% under Rule 57 CC on exempted sulphuric acid is not attracted - appeal dismissed - decided against Revenue.
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2017 (12) TMI 1365 - CESTAT ALLAHABAD
CENVAT credit - intermediate goods - generation of electricity - reversal of attributable credit on the inputs and input services consumed for generation of electricity used in colony, guest house, bank, canteen et cetera for non-manufacturing activity or pay an amount equal to 10% of sale price of such electricity sold to U.P.Power Corporation Ltd. - Held that: - But on query from the bench, whether the revenue have filed further appeal in respect of the aforementioned ruling of this Tribunal, the ld. A.R. stated that he is not aware about the same. The ld. Counsel for the appellant submits that till date, they have not received any notice in respect of any appeal filed by revenue before Higher Court - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1308 - CESTAT NEW DELHI
CENVAT credit - denial on the premise that the appellant is a job worker and working under N/N. 214/86-CE dated 25/03/1986 as they are not required to pay duty on the goods manufactured by them on job work basis, therefore, in terms of Rule 6 (1) of CCR, 2004, credit not allowed - Held that: - It is admitted fact that the goods manufactured by the appellant are not exempted goods, but being a job worker, the appellant is not required to pay duty therefore it cannot be said the goods manufactured by the appellant are exempted goods - Cenvat credit cannot be denied to the appellant in terms of Rule 6 (1) of CCR, 2004 - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1307 - CESTAT NEW DELHI
Remission of duty - Rule 21 of the CER, 2002 - defective PSC sleepers - Held that: - It is not the case of the Revenue that the appellants had removed the defective PSC sleepers in as it is condition out of the factory, without payment of Central Excise duty - since the appellants entered the entire manufacturing particulars in the RG-1 register, the demand cannot be fastened on the sole ground that the procedures laid down in Rule 21 of the Rules have not been followed by the appellants.
Since, the defective PSC sleepers, in question, were not removed from the factory, and were sold as waste scrap on payment of appropriate duty, the duty demand confirmed in the impugned orders cannot be sustained for recovery.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1306 - CESTAT NEW DELHI
CENVAT credit - locomotive - denial on the ground that locomotive is not falling under the definition of capital goods - Held that: - Since locomotive in this case is considered as an input for the purpose of availment of Cenvat benefit, the Department cannot deny such benefit on the ground that locomotive is not defined as capital goods under the cenvat statue - Since the Department has not disputed the duty paid character of the subject goods i.e. locomotive and its receipt and utilization within the factory premises of the appellant, Cenvat credit cannot be denied on the procedural ground that taking of such credit under capital goods is not proper and justified - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1305 - CESTAT NEW DELHI
SSI exemption - works contract service - The fixtures assembled at the site were considered by the department as the manufactured goods and accordingly, the value of such fixtures were added to the assessable value of the furniture sold from the factory and the benefit of SSI Notification dated 01/03/2003 was denied to the appellant company - Held that: - the fixtures erected at the customer’s site cannot be considered as loose furniture, for the purpose of levy of Central Excise duty. Thus, the value of such fixtures cannot be included in the assessable value of loose furniture for the purpose of computation of the SSI threshold limit - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1304 - CESTAT NEW DELHI
Benefit of reduced penalty u/s 11AC - denial on the ground that the appellant did not pay the interest amount under Section 11AB of the Central Excise Act, 1944 attributable to the late payment of the duty amount - SSI exemption - Held that: - Since, the period covered under the dispute relates to the period prior to the substitution of new Section 11AB of the Act, the provisions of such amended rule will not be applicable in the case of the appellant herein. Therefore, the appellant should get the benefit of payment of reduced amount of penalty of 25% in terms of Section 11AC ibid - appeal allowed - decided in favor of appellant.
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