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Central Excise - Case Laws
Showing 1 to 20 of 4798 Records
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2018 (12) TMI 1988 - CESTAT ALLAHABAD
Leviable to Excise Duty or not - waste & scrap of paper arising during the course of manufacturing of cigarettes - HELD THAT:- The said issue came up before this Tribunal in appellant’s own case for the earlier period INTERNATIONAL TOBACCO CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, GHAZIABAD [2003 (10) TMI 171 - CESTAT, NEW DELHI] wherein this Tribunal held that the waste and scrap of paper arising during the course of manufacturing of cigarette is not a process of manufacture. Therefore, the said waste and scrap does not attract Central Excise duty. Therefore, following the precedent decision of the Tribunal in appellant’s own case, it is held that the appellant is not liable to pay duty on waste & scrap of paper arising during the manufacture of cigarettes.
The impugned order is set aside - the appeal is allowed.
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2018 (12) TMI 1983 - CESTAT CHANDIGARH
Rejection of refund on account of education and higher education cess - denial of Cenvat on account of value addition - denial of Cenvat credit on the input procured from EOU.
Rejection of refund on account of education and higher education cess - HELD THAT:- This issue is settled by Hon’ble Supreme Court in the case of M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT] which has subsequently followed by various decisions where it was held that The appellants were entitled to refund of Education Cess and Higher Education Cess which was paid along with excise duty once the excise duty itself was exempted from levy. Following the aforesaid judgement, the order passed by the ld. Commissioner (Appeals) is not sustainable in law.
Denial of Cenvat credit on the input procured from the EOU - HELD THAT:- This issue also stands settled in favour of appellant following the decision of coordinate bench of this Tribunal in the case of M/S METACLAD INDUSTRIES VERSUS CCE, MUMBAI-II [2012 (11) TMI 244 - CESTAT MUMBAI] where it was held that Under sub-section (1), an additional duty of customs is levied which is equal to the excise duty levied on like articles produced in India. Under sub-section (5), another additional duty of customs is levied at a rate not exceeding four per cent of the value of the imported article so as to counterbalance the sales tax/value added tax or any other charges on a like article on its sale, purchase or transportation in India. Both the levies are “additional duty of customs” and therefore, there is no warrant to restrict the scope of the term additional duty of customs occurring in the formula to only the additional duty leviable under sub-section (1) of section 3 and not to the additional duty leviable under sub section (5) thereof.
Rejection of refund claim on account of education cess and higher education cess - rejection of refund on value addition - HELD THAT:- The case of value addition is covered by the judgement of M/S RECKITT BENCKISER VERSUS UNION OF INDIA AND OTHERS [2010 (12) TMI 237 - JAMMU AND KASHMIR HIGH COURT] where it was held that Notification no. 19/2008 CE dated 27-3-2008 shall stand quashed. The petitioner-units shall continue to avail the benefit of exemption from payment of excise duty as provided in terms of the notification No.56/2002-CE dt. 14th of Nov’02. The respondent-State, however, shall be at liberty to take appropriate action in .accordance with the relevant rules against those unscrupulous manufacturers who are involved in illegal activities of alleged bogus production - This issue is also stands settled in favour of the appellant.
The order passed by the ld. Commissioner (Appeals) is not sustainable and, therefore the impugned order set aside - appeal allowed.
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2018 (12) TMI 1954 - CESTAT NEW DELHI
Valuation - cylinder holding charges, collected by the appellants who are manufacturers of gas, after a free period of retention of seven days - to be added in the assessable value of the gases or not, after 1.7.2000 when the provision of Section 4 were amended? - HELD THAT:- The similar issue came up before the Tribunal in the case of BOC INDIA LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, CHENNAI-I [2004 (1) TMI 246 - CESTAT, KOLKATA] wherein it was held that the said charges are not, in any way, related to or connected with the sale of the Gases. As such, the same cannot be said to be includible in the definition of the “transaction value‟, as is appearing in the provisions of Section 4(3)(d).
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1950 - CESTAT NEW DELHI
Clandestine Removal - output as per the SAIL norm or not - public sector undertaking - HELD THAT:- In this case no investigation has been taken up by the department regarding the use of raw material, electricity, sale of the raw material, mode of transport etc. to sustain alleged clandestine removal and covered by the decision of RA CASTINGS PVT. LTD. VERSUS COMMISSIONER OF C. EX., MEERUT-I [2008 (6) TMI 197 - CESTAT NEW DELHI] and M/S. CONTINENTAL CEMENT COMPANY VERSUS UNION OF INDIA & OTHERS [2014 (9) TMI 243 - ALLAHABAD HIGH COURT].
It is also found that the show cause notice proposed to follow the output norm being obtained by the SAIL which is highly complex integrated plant having latest technology and infrastructure. It is not possible for the unit like appellant to have as same technology and infrastructure as available to the SAIL in this case and the production norm is treated to be identical. The department has not taken this much of the evidence into account by alleging the clandestine removal on the part of the appellant.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1934 - CESTAT KOLKATA
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- The amount involved in this case is below the monetary limit of ₹ 20 lakhs which has been notified vide instruction being F. No. 390/Misc./116/2017-JC dated 11/07/2018. The present case falls under exclusion Clause 3 (C) of the National Litigation Policy introduced vide Board’s Instruction dated 17.12.2015 which has been deleted vide Instruction F. No. 390/Misc./116/2017-JC dated 04.04.2018.
Accordingly, the appeal is dismissed under litigation policy.
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2018 (12) TMI 1922 - CESTAT ALLAHABAD
Interest on delayed refund - reversal of Cenvat credit on the inputs laying in stock work in progress - N/N. 23/2004-CE dated 09.07.2004 - HELD THAT:- In this case in pursuance to Notification No.23/2004-CE dated 09.07.2004 the tractors manufactured by the appellant became exempt from payment of duty. Therefore, appellant was directed to reverse the Cenvat credit through PLA for input laying in stock, work in progress and contained finished goods. Admittedly, at the time of availment of Cenvat credit the tractors are dutiable. Therefore, they were entitled to take Cenvat credit of inputs and capital goods.
The appellants are entitled to pay interest from the date of payment of deposit, till its realization - appeal allowed.
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2018 (12) TMI 1851 - CESTAT KOLKATA
CENVAT Credit - allegation that the assessee had availed/utilized inadmissible Cenvat Credit in contravention of Notification No.20/2007- CE dated 25/04/2007 - HELD THAT:- During the period in dispute, out of total Centvat Credit availed by the appellant, an amount of ₹ 75,15,568/- was pertaining to various input services for which the appellant assessee discharged Service Tax on 31/03/2014 as a recipient of Service under the Reverse Charge Mechanism (RCM) in terms of Rule 6 of the Service Tax Rules, 1994. The said credit was availed in the Cenvat Register in the month of April 2014.
The issue is no more res-entigra in view of the decision of the Tribunal in the case of VINAYAK INDUSTRIES VERSUS COMMISSIONER OF C. EX. & S.T., JAMMU & KASHMIR [2014 (3) TMI 1033 - CESTAT NEW DELHI] where it was held that credit is allowed.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1849 - CESTAT KOLKATA
CENVAT Credit - inputs/capital goods - welding electrodes - HELD THAT:- The issue is no more resintegra in view of the various decisions of the Tribunal and the Hon’ble High Courts. The decision of the Tribunal in the case of M/S. SINGHAL ENTERPRISES PRIVATE LIMITED VERSUS THE COMMISSIONER CUSTOMS & CENTRAL EXCISE, RAIPUR [2016 (9) TMI 682 - CESTAT NEW DELHI] where it was held that applying the “User Test” to the facts in hand, we have no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of ‘Capital Goods’ as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat Credit.
Appeal of Revenue dismissed.
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2018 (12) TMI 1846 - CESTAT KOLKATA
Payment of duty on the quantum of petroleum products lost in transit - Levy of penalty on both the Refinery as well as the Raxaul Depot - Department noticed that there was transit loss in the movement of petroleum products from Barauni to Raxaul - HELD THAT:- The transit loss had happened in the movement of the petroleum products from their Refinery situated at Barauni to the warehouse situated at Raxaul. Keeping in view the nature of the goods which are volatile, some transit loss is inevitable. The question therefore to be decided is whether such transit loss can be condoned or the appellant should make good by payment of duty on such goods lost.
The Board had issued a circular as early as 30/10/1985 in which it has been clarified that transit loss upto 1% was permissible.
The Adjudicating Authority had declined to grant the benefit of the circular citing the reason that the Warehousing Provision for petroleum products has since been withdrawn and the circular is applicable only for some other situations - the demand in respect of such transit loss which is not in excess of 1% may be condoned, in view of the circular of the Board dated 30/10/1985. It is the claim of the appellant that wherever transit losses were more than 1% they have already discharged the duty liability.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1845 - CESTAT KOLKATA
Grant of Erroneous Refund - benefit of N/N. 33/99-CE dated8/7/1999 - case of refund is that changes in working capacity would not lead to change in installed capacity of the factory and strongly argued that the installed capacity of the factory remained unchanged and hence the assessee was not eligible to the exemption for the purposes of Notification No. 32/99 dated-8/7/1999. - HELD THAT:- Once the actual expansion of installed capacity is established, it cannot be denied merely on the ground that the alteration /addition was done without obtaining the prior approval of Chief Inspector of factories. It is also observed that the Refund Sanctioning Authority had taken into account the Verification Report dated 28/09/2006 of the Range Supdt. and had himself conducted spot verification alongwith the Divisional staff. In the order dated 28/09/2006, the Refund Sanctioning Authority has recorded itemwise /sectionwise increase/addition /alteration. The eligibility order itself states that there was no increase in Rolling/Dryer Section of Power loom. There was increase in Withering Section by 14.95% due to installation of Nine Troughs and 18.3% in CTC Section due to modification of CTC machine by installing Kaizem machines replacing old Master machines and 171% increase in Fermenting Section owing to increase in Floor area by 4547 sq. Ft.
The Department’s contention of production activity without obtaining the valid Industrial License has no merit - the substantial benefits can not be denied on extraneous grounds.
There are no infirmity in the order impugned and the same is hereby sustained - appeal dismissed.
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2018 (12) TMI 1842 - CESTAT ALLAHABAD
Classification of goods - Potato Flakes - classified under Chapter 1105 20 00 or under Chapter 20 of the Central Excise Tariff Act, 1985? - HELD THAT:- The appeal dismissed as in-fructuous - However, it is made clear that the settlement of dispute on the classification in favour of the assessee would be equally applicable to the present two appeals which have been dismissed for technical reasons of having become in-fructuous.
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2018 (12) TMI 1799 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
Rebate claim - time limitation - it is contended that Commissioner (Appeals) has erred by holding the rebate claims within limitation period and by not taking into account the Explanations (B) (ec) to Section 11B of the Central Excise Act, 1944 - HELD THAT:- The Government does not have any doubt that respondent had originally filed the rebate claims in time in the months of March & April 2011 and the same were substantially allowed earlier by the Assistant Commissioner and remaining amount was sanctioned subsequently by the Commissioner (Appeals) vide his order dated 24-10-2011. Thus, the net effect of the orders of the Assistant Commissioner dated 29-7-2011 and the Order-in-Appeal dated 24-10-2011 was that all rebate claims filed by the respondent in the months of March & April 2011 were found admissible and accordingly the Assistant Commissioner was bound to sanction the rebate claims of ₹ 6,83,727/- soon after having received the Order-in-Appeal. But he not only failed in complying the Order-in-Appeal but also aggravated the whole matter by issuing the deficiency memo for rejection of their rebate claims on the ground that the respondent had filed rebate claims after more than one year and thereby the rebate claims were hit by time limitation.
The Assistant Commissioner did not have any legal basis for rejection of the respondent’s rebate claims for second time by ignoring the Order-in-Appeal and by invoking above mentioned Explanation in Section 11B which is not relevant in the present context. The rebate claims allowed by the Commissioner (Appeals) clearly related to rebate claims filed by the respondent well in time and the same could not be considered as having arisen out of the Commissioner (Appeals)’s order as is envisaged in Explanation B (ec) in Section 11B. The refund claim covered under the Explanation are apparently those which were not claimed on the basis of existing evidences of excess payment of duty and covers only those claims where excess payment of duty is established subsequently by virtue of the order of the Court or any other appellate authority while settling dispute regarding classification of goods, valuation of the goods or rate of duty etc. for which the refund claim is filed by the claimant later on the basis of such Court’s or appellate authority’s order. But in the instant case the rebate of duty has not arisen due to any such situation and rebate of duties had been claimed on account of export of duty paid goods for which rebate claims had already been filed in time and the Commissioner (Appeals) had restored even the rejected claims. Hence, the respondent was not required to file the rebate claims for ₹ 6,83,627/- again after Commissioner (Appeals) had issued his order in 2011 and the same was sanctionable as per earlier Order-in-Appeal.
The Government does not have any hesitation in saying that the Revision Application is frivolous and not maintainable - revision rejected.
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2018 (12) TMI 1793 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
Rebate of Central Excise duty paid on exported goods - sale proceeds received was lower than what was declared in the ARE-Is, the Maritime Commissioner reduced the rebate claims proportionately - Rule 18 of Central Excise Rules, 2002, read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 - HELD THAT:- The Government has examined the matter and it is observed that the rebate of duty is sought to be linked with the realization of foreign currency from the overseas buyer and not to the actual duty amount paid by the applicant on the exported goods. But no authentic reason is given by the lower authority in his Order for reducing the amount of rebate of duty in the above discussed situation on the basis of actual realization. In revision application also no legal authority has been cited to support the case that rebate claims can be reduced in the above stated circumstance.
In Rule 18 of Central Excise Rules, 2002 and Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 also, which are governing provisions for rebate of duty, it is nowhere stipulated that rebate of duty will be sanctioned by taking into account the amount of export proceeds realized by the exporter. Even Excise Manual of Supplementary Instruction, 2005 does not mention any such condition. In fact the realization of export proceeds itself is not a pre-condition for sanctioning of rebate of duty and, therefore, lesser realization of export proceeds cannot be a criterion for reducing the rebate claim.
Thus, the Government does not agree with the contentions of the applicant that the Commissioner (Appeals) has committed an error by allowing the appeal of the respondent and by allowing the rebate of duty to the respondent for full duty paid on exported goods - revision dismissed.
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2018 (12) TMI 1792 - CESTAT KOLKATA
Refund of Central Excise Duty - Area Based Exemption - benefit of N/N. 33/1999-C.E., dated 8-7-1999 (as amended) - HELD THAT:- The issue has been decided in favour of the respondent at the level of the Commissioner (Appeals) vide his order dated 25-1-2005. This order also has been accepted by the jurisdictional Commissioner without challenging it further - The sanction of refund by the Assistant Commissioner is only a consequence to the decision of the Commissioner (Appeals) dated 25-1-2005. Without challenging the decision by the Commissioner (Appeals), we find no justification for challenging the grant of such refund through the present appeal.
Appeal dismissed - decided against Revenue.
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2018 (12) TMI 1789 - CESTAT MUMBAI
Clandestine removal - man-made fabrics/other fabrics - opportunity for cross-examination denied - HELD THAT:- As the proceedings arise out of a remand order, we are obliged to ensure that the directions of the Tribunal had been complied with. It would also appear that the entire case having been built on records that were recovered from the possession of persons other than the appellant and the allegations pertain to clandestine production and removal, the veracity of the documents as well as corroboration by those who were examined during the investigation is essential for determination of the outcome of the appeal.
Though the adjudicating authority has recorded of lack of diligence on the part of the appellant herein in taking advantage of the opportunity for cross-examination, it is amply clear that the directions of the Tribunal have not been complied with. It would, therefore, be improper on our part to evaluate the findings of an adjudicating authority which has failed to implement the orders of the Tribunal in the light of the deficiencies pointed out by Learned Counsel.
Matter remanded back to the original authority for a fresh determination after completion of the cross-examination of the persons whose statements had been recorded - appeal allowed by way of remand.
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2018 (12) TMI 1784 - CESTAT NEW DELHI
Marketability/excisability - Copper slag - requirement for accounting in terms of Rule 10 of Central Excise Rules - Confiscation - penalty - HELD THAT:- Revenue has not established that copper slag is marketable and further they have not identified the tariff entry or sub heading under which copper slag is dutiable. Thus, this finding of the adjudicating authority are vague and misconceived - appellant was not required to maintain the entry of copper slag as required under Rule 10 of the Central Excise Rules, 2002 - Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1783 - CESTAT KOLKATA
Valuation - inclusion of transportation cost in the assessable value - place of removal - period 2004-05 - Section 4 ibid as well as Rule 5 of the Central Excise (Valuation) Rules, 2000 - HELD THAT:- Explanation 2 to the Rule 5 makes it clear that the cost of Transportation from the factory to the place of removal, where the factory is not the place of removal, shall not be excluded for the purpose of determining the value of excisable goods. To apply the above Rule, it is required to determine which is the place of removal whether it is the factory gate or the buyer’s premises.
Hon’ble Supreme Court in the case of COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. [2015 (4) TMI 857 - SUPREME COURT] where the Hon’ble Supreme Court has considered an identical question in a case where the purchase order was to transfer the property of goods to the buyer at the premises of the buyer.
After carefully considering the terms of the purchase orders, it is noted that in terms of such purchase orders, the transfer of property in the goods, is taking place at the premises of the buyers and as such by virtue of Section 19 of the Sale of Goods Act, 1930, the sale takes place at that time. Accordingly, the place of removal is considered as the buyer’s premises under the given circumstances. Consequently, as per Explanation 2 to Rule 5 ibid, cost of transportation is to be included.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1782 - CESTAT KOLKATA
CENVAT credit - duty paying invoices - Supplementary invoices issued by M/s. HLL at the time of payment of differential duty - periods April 2001 to March 2002 and June 2002 to March 2003 - Rule 7 (1)(b) of the Cenvat Credits, 2002 - HELD THAT:- In the Tribunal’s decision in the case of KARNATAKA SOAPS & DETERGENTS LTD. VERSUS CCE., MYSORE/BANGALORE [2005 (6) TMI 182 - CESTAT, BANGALORE], the Tribunal has taken the view that the ban on taking credit of supplementary invoices operate only in the case of sale. In the case of Stock Transfer, prohibition under Rule 7 (1)(b) of Cenvat Credit Rules held as not applicable - The Tribunal’s decision in the case has also been upheld by the Hon’ble Karnataka High Court in KARNATAKA SOAPS AND DETERGENTS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE [2010 (2) TMI 524 - KARNATAKA HIGH COURT].
Appeal dismissed - decided against Revenue.
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2018 (12) TMI 1781 - CESTAT NEW DELHI
Valuation - inclusion of reimbursed subsidy amount admissible under the Scheme towards the payment VAT on future sale, in assessable value - HELD THAT:- The same issue has been decided by this Hon’ble Tribunal in case of SHREE CEMENT LTD. SHREE JAIPUR CEMENT LTD. VERSUS CCE, ALWAR [2018 (1) TMI 915 - CESTAT NEW DELHI] where it was held that There is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1776 - CESTAT NEW DELHI
Valuation - inclusion of reimbursed subsidy amount admissible under the Scheme towards the payment VAT on future sale, in assessable value - HELD THAT:- The same issue has been decided by this Hon’ble Tribunal in case of SHREE CEMENT LTD. SHREE JAIPUR CEMENT LTD. VERSUS CCE, ALWAR [2018 (1) TMI 915 - CESTAT NEW DELHI] where it was held that There is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans.
Appeal dismissed - decided against Revenue.
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