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Central Excise - Case Laws
Showing 141 to 160 of 4798 Records
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2018 (12) TMI 935 - RAJASTHAN HIGH COURT
Pre-deposit - It is the case of the petitioner that due to financial constraints, it could not deposit the aforesaid amount of ₹ 25 lacs within the stipulated period - Held that:- This Court cannot lose sight of the fact that an appeal under Section 35G of the Act of 1944 lies against the order of the CESTAT before this Court and the petition under Article 226 of the Constitution of India is not proper remedy. The petitioner having filed an appeal before this Court against the earlier order dated 13.05.2005 of the Tribunal cannot circumvent such course or remedy.
The present writ petition laying challenge to the order passed by the CESTAT way back on 07.02.2012, is apparently a subterfuge to overcome the hurdle of limitation which stands expired six years ago - petition not maintainable and is dismissed.
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2018 (12) TMI 933 - MADRAS HIGH COURT
Condonation of delay of 25 days in filing appeal - appeal rejected only on the reason that the said appeal was filed beyond the period as prescribed under the relevant statute - Held that:- Since the first respondent has rejected the appeal only on the reason that the same was time barred, without expressing any view on the merits of the matter, the valuable statutory right of appeal provided to the petitioner cannot be denied on the simple reason that the said appeal was filed with meagre delay of 25 days.
This Court is inclined to set aside the impugned order and remit the matter back to the first respondent to consider the appeal and pass orders on the same in accordance with law - Appeal allowed by way of remand.
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2018 (12) TMI 932 - CESTAT HYDERABAD
CENVAT Credit - duty paying invoices - denial on the ground that the subject invoices are debit notes which are not eligible documents for availing CENVAT credit in terms of Rule 9(1) of CENVAT Credit Rules, 2004 - Held that:- The Hon’ble High Court of Rajasthan in the case of Bharati Hexacom Limited [2018 (6) TMI 435 - RAJASTHAN HIGH COURT] held that CENVAT credit can be availed on the basis of debit notes. This is a binding legal precedent, ratio of which applies to the present case.
Denial of credit also on the ground that the appellant had not submitted debit notes before him - Held that:- Copies of these debit notes have now been enclosed in the paper book submitted by the appellant which contains all the relevant details. The service tax amount has been indicated in pen in these four debit notes but that should not be a limitation for availing of CENVAT credit and there is no requirement in the CCR 2004 that all the details of the invoice should be printed on a computer. There is no allegation in the show cause notice that service tax has not been paid by the service provider - credit allowed.
Credit allowed - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 931 - CESTAT MUMBAI
Valuation - includibility of cost of ‘prototype’ in assessable value - the value assigned to the scrap arising from the conversion process that was retained by the appellant and the percentage of ‘scrap’ adopted - Held that:- It is not clear whether the prototype is subjected to testing within the factory of the appellant or elsewhere. Similarly, it is not ascertainable if the prototype is assembled in the premises of the appellant or at another location after clearance of the disassembled parts. In the absence of any such evidence, it is impossible to crystallise the leviability of duty, if at all.
It was in almost identical circumstance that the Tribunal held in Commissioner of Central Excise, Mumbai – II v. Jyoti Structures Ltd [2004 (5) TMI 358 - CESTAT, NEW DELHI] that ‘destruction testing’ erases the prototype out of existence and, thereby, of dutiability.
The various elements of the ascertained assessable value suffer from infirmities - To determine any deficit in the value adopted for assessment in comparison with the price declared as per the contract, the exercise requires to be carried out afresh in the light of our observations on these elements - matter remanded back to the original authority to re-determine the acceptability of the declared price for assessment and the duty liability, if any, arising from unaccounted value of these elements - appeal allowed by way of remand.
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2018 (12) TMI 930 - CESTAT CHENNAI
Extended period of limitation - misdeclaration of method of manufacture of NIVARON 90 - suppression of facts - whether the date of inspection by departmental officers at the unit of the appellant has any bearing in deciding the period of limitation when issuing SCNs in the proceedings initiated against the latter?
Held that:- The visit of the officers on 11.11.93 was only the starting point of the investigation. It cannot therefore be said that just because officers visited the premises of the appellant on 11.11.93, the department has automatically come to know about the alleged modus operandi as reflected in the SCN dt. 17.5.96. It is but evident that only after analysis and study of the documents seized under Mahazar on the date of visit, and subsequently has the department acquired reasonable belief that the appellant had, as indicated in para 3.0 of the SCN, filed wrong / false declarations; removed medicaments without payment of duty; no Central Excise Gate Passes were issued for removal of the excisable goods and no price lists were filed and no statutory accounts were maintained for the manufacture and clearance of goods.
The date of inspection of 11.11.1993 will not have any bearing for being considered as the relevant date for issue of SCN within the period of limitation.
The demand is not time-barred and the charge of suppression has been rightly held to have been proved by the authorities below - appeal dismissed.
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2018 (12) TMI 929 - CESTAT NEW DELHI
CENVAT Credit - input services - services received by appellant from their authorized service stations with regard to free after sale services and repairs etc. of warranty period - Held that:- The matter is no longer res-integra as this Tribunal in the case of Carrier Airconditioning & Refrigeration Ltd. vs. CCE, Gurgaon [2016 (3) TMI 124 - CESTAT NEW DELHI] has already held that services provided by the authorized representative/ service stations are on behalf of the manufacturer and the service tax paid on availment of such services by the manufacturer, they are entitled for Cenvat credit of such input services.
Thus, since the value of free after sale services and the warranty period repairs and maintenance are already included in the assessable value of the two wheelers, the service tax paid on availment of such input services by the manufacturer from their authorized representatives the appellant/assessee is entitled for credit of such input services.
CENVAT Credit - input services - service tax paid on the commission for procuring the advertisement services - Held that:- The activity of hiring of print media agent for ultimate purpose of advertising is very much part of advertising service and since the advertisement charges forms the part of assessable value of the appellants finished product any cost incurred and services availed in this regard form the part of assessable value and thus the appellant is entitled for credit of such input services - the appellant are legally entitled to avail input service credit of the service tax paid by them on the commission charged by the print media agent for advertising their advertisement material into various newspapers.
CENVAT Credit - input services - renting of infrastructural facilities from M/s Honda Siel Car Pvt. Ltd. - Held that:- Common facilities availed by the appellant on rent basis are in „relation to the manufacture of goods‟ and then on integral part of overall activity of manufacturing - also since the charges of rent/license fee paid by the appellant must have been included in the cost of the finished product manufactured by the appellant as per the provisions of Cenvat Credit Rules they are entitled for credit of service tax paid by them as the facilities were in relation to manufacturing of their finished product - the appellant has rightly availed Cenvat credit of service tax paid on rent of infrastructural facilities.
Extended period of limitation - Held that:- Since all the material facts have always been available with the Department and the appellant have been audited by the Department on the regular intervals during the period of demand, the necessary element for invoking the extended time period of 5 years for demanding reversal of the Cenvat credit are not available in the present case - demand is barred by period of limitation.
The penalties imposed under Rule 26 of the Cenvat Credit Rules on the appellants who are paid employees of the main appellant is not warranted.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 928 - CESTAT ALLAHABAD
Clandestine removal - the entries made in the private records when compared with the statutory records were found to be missing from the statutory records - Held that:- The entire case of the Revenue is based upon these records, without there being any further corroboration as regards the receipt of the raw material or the actual manufacturer of the boilers or the actual identification of the transporters and the buyers and evidences showing receipt of the same in cash from their customers. The allegation of clandestine removal are required to be established by producing sufficient evidences or at least evidences to the extent which inspires confidence in the Revenue’s allegations of clandestine removal.
Undervaluation - Held that:- The onus to prove is on the Revenue, who is alleging to the contrary. The said allegations were upheld on the basis of mere assumption and presumption. Further the appellants have also claimed the benefit of small scale exemption notification which the Commissioner (Appeals) has observed that though the clearances are well within the prescribed limit but the appellant have failed to give progressive value of clearances on various dates when different effective rates have to be applied for working out the duty liabilities.
Having held that there is no evidence of either clandestine removal or under valuation, there are no merits in the impugned orders - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 927 - CESTAT CHENNAI
Recovery of CENVAT Credit utilized on inputs and capital goods - It is the case of the Revenue that Sl. No. 90 of Notification 04/2006-CE being absolute in nature, the assessee ought to have availed the same and had no option to pay duty as per Sl. No. 91 of the above Notification - whether the disallowance of CENVAT Credit to the tune of ₹ 51,35,255/- and consequent demand of penalty under Rule 15(2) is justifiable?
Held that:- This Bench had occasion to decide a similar issue, in the case of M/s. Sripathi Paper & Boards Vs. C.C.E. & S.T., Tirunelveli [2018 (9) TMI 891 - CESTAT CHENNAI], where it was held that A bare reading of Sl.No. 90 of the Notification, it is found that the same is controlled by the condition No. 10. While the rate of duty on the goods described at Sl.No. 90 are ‘nil’ ie., exempted, the goods at Sl.No. 91 are taxed at 4%; Sl.No. 90 is controlled by condition No. 10 whereas Sl.No. 91 is controlled by condition No. 11.
The absolute exemption Notification, N/N. 29/2004-CE dated 09.07.2004 as amended by Notification No. 58/2008-CE dated 07.12.2008 and another Notification No. 59/2008-CE dated 07.12.2008, referred to emanates is mandatorily required to be availed by the assessee, whereas, the exemption Notification No. 04/2006 in the case on hand, provides two options with different duty liabilities and different conditionalities. The said Notification thus is an optional one in the hands of the assessee and is not an absolute exemption Notification.
Appeal dismissed - decided against Revenue.
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2018 (12) TMI 926 - CESTAT ALLAHABAD
CENVAT Credit - duty paying invoices - invoices issued by M/s Abhay Kumar Awasthi did not reflect the name of the appellant - extended period of limitation - Held that:- Though the Lower Authorities have observed that the appellants have not proved beyond doubt the receipt of the services but appreciating the assessee’s stand that the same stand reflected in their books of account and there being no objection to that effect in the show cause notice, it has to be held that appellant was entitled to avail said credit.
Time Limitation - Held that:- The demand is barred by limitation inasmuch as the appellants were regularly filing returns and were reflecting the said credit in which case demand raised beyond the normal period has to be held as barred by limitation - demand set aside.
Demand of Interest - Held that:- As the said interest is in respect of the differential duty paid by the appellant in respect of price escalation and in terms of various decisions is required to be paid. However, as per the settled law the limitation aspect would be applicable to the interest demand also - the invoice date on which differential duty was paid by the assessee is not available, it is deemed fit to remand the said aspect to the Original Adjudicating Authority for deciding on the limitation.
Penalty - Held that:- The payment of interest on the differential duty being a technical issue when all the aspects were known to the Revenue, no mala fide can be attributed to them so as to invoke penal provisions - penalty set aside.
Appeal allowed by way of remand.
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2018 (12) TMI 925 - CESTAT CHENNAI
Reversal of CENVAT Credit - Rule 6(3) of the CENVAT Credit Rules - It is the case of the Revenue that the appellant had contravened Rule 6(3) of the CENVAT Credit Rules, 2004 in as much as they had not discharged the liability of payment of 10% of the value of exempted goods cleared to the SEZ Developers - Held that:- In the case of Fosroc Chemicals (India) Pvt. Ltd. [2014 (9) TMI 633 - KARNATAKA HIGH COURT], it is found that the Hon’ble jurisdictional High Court after considering the rival contentions as well as the decisions of various judicial fora, has held that the amendment to Rule 6 vide N/N. 50/2008 dated 31.12.2008 shall have retrospective effect.
The impugned demand is unsustainable - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 924 - CESTAT CHENNAI
CENVAT Credit - MS Sheets used exclusively in the manufacture of exempted PCC pipes - benefit of adjustment of the amount reversed by them - Held that:- The appellant is liable to reverse the CENVAT Credit, however, the amount of ₹ 21,48,550/- already paid by them being over and above the amount of Credit disallowed, the same is required to be adjusted from the amount already reversed as above. Therefore, we deem it fit to remand the matter for the limited purpose of re-quantification of demand on this issue alone after giving adjustment of the amount already reversed by the appellant - there being no suppression of facts, penalty set aside - matter on remand.
Classification of goods - MS Specials/Flanges and Tees cleared as pipes falling under Chapter Heading 7305 - Department has alleged that the same are pipe fittings falling under Chapter Heading 7307 - Short payment of duty - appellant had cleared a dutiable final product upon payment as per Rule 6(3)(b) - N/N. 23/2004-CE (NT) dated 10.09.2004 - Held that:- Appellant has conceded the same and the respective demands have already been paid by the assessee.
Penalties - Held that:- There is no whisper of any allegation of suppression of facts with intention to evade payment of duty or invocation of any provision pertaining to extended period in the Show Cause Notice - there is no positive evidence to indicate suppression of facts with intention to evade payment of duty and thus the ingredients for invocation of extended period are not present in the case on hand - Penalties set aside.
Appeal allowed in part - part matter on remand.
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2018 (12) TMI 923 - CESTAT CHENNAI
CENVAT Credit - inputs - bought out items - certain items which are brought into the factory by the appellant and cleared along with the final product which was exported to Vietnam - Held that:- The very same issue has been analyzed in the case of KCP Ltd. [2018 (12) TMI 845 - CESTAT CHENNAI] and the Tribunal has held that the credit to be eligible - credit allowed - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 922 - CESTAT NEW DELHI
Interest on delayed refund - relevant date - whether the date of refund application as required in Section 11B of the Customs Act has to be the date of application on which it has been filed or it has to be the date on which the deficiencies in the application got corrected?
Held that:- When even read with Section 11BB of Central Excise Act that for the payment of interest after three months from the date of receipt of refund application, the applicant shall be entitled for the interest at the rate as prescribed. The provision is nowhere expressing about “application” to be called so only in case it is supported by the requisite documents - The law has been settled that the fiscal legislation has to be construed strictly and one has to look merely at what is said in the relevant provision.
It is also apparent from record that the deficiency, whatever, noticed in the application was informed to the applicant after 15 days. It is Department’s acknowledged case that the application was filed on 15.03.2017 and the copy of the Final Order was asked from the applicant vide the Department’s letter dated 30.03.2017 - the statute is not making any distinction in the date of receipt of application from that of the receipt of the application complete in all respect. The explanation as relied upon by Commissioner (Appeals) of some Custom Refund Regulations cannot supersede the statute and the mandate thereof in the Section 11B and 11BB of the Central Excise Act, 1944.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 921 - CESTAT BANGALORE
100% EOU - Irregular CENVAT Credit - it was alleged that appellant had availed excess credit of ₹ 3,123/0 compared to Annexure-10 Registry, utilized an amount of ₹ 11,088/- without availability of credit - Held that:- The appellant is a 100% EOU and as and when the audit pointed out the irregular availment of credit, the appellant reversed the same along with interest and also paid 25% of the penalty as directed by the original authority.
The department has not brought any evidence on record to show that the appellant have suppressed the material fact with intent to evade payment of duty. As and when it was brought to their notice, they reversed the same.
The impugned order imposing the penalties is not sustainable and the same is set aside - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 920 - CESTAT CHANDIGARH
Rectification of mistake - contention of the Ld. Counsel for the applicant is that the matter was heard on 03.11.2016 and order was reserved - Held that:- Some of the contentions have not been considered by this Tribunal while passing the final order. In that circumstance, there is a mistake apparent on record which is required to be rectified - ROM Application allowed.
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2018 (12) TMI 856 - CESTAT NEW DELHI
CENVAT Credit of the inputs lying in their stock - SSI benefit availed - credit availed after crossing of threshold limit of SSI Exemption - applicability of Rule 3 (2) of Cenvat Credit Rules, 2004 and Rule 4 (1) of CCR 2004 - Held that:- Both these Rules cannot be applied simultaneously - Rule 3 (2) prescribes the eligibility to avail cenvat credit as soon as the unit crosses threshold limit and rule 4 (1) prescribes particular condition for the availment of that credit. If a condition under rule 4 specifically disallows cenvat credit on a particular goods or service, the cenvat credit cannot be allowed under rule 3 of the Cenvat Credit Rules, 2004.
Though the appellant has taken a plea that Rule 3 (2) of CCR, 2004 has been provided with the sole intention of law that the goods which have become dutiable after the exemption seized to exist, then naturally to avoid cascading effect of duty suffered on inputs involved on such goods, such benefit of cenvat credit is to be given to the manufacturer and any provision of law putting a limitation thereto shall not be applicable simultaneously to this provision.
The appellate authority has rightly denied the availment of cenvat credit to the appellant for such of its stock. The invoices were beyond a period of six months of appellant crossing the threshold limit of SSI exemption - appeal dismissed - decided against appellant.
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2018 (12) TMI 855 - CESTAT NEW DELHI
Levy of penalty under Rule 25 - 100% EOU - clandestine removal - Dimethy phosphonate - penalty - Held that:- The Noticee is doing only contract research and manufacturing service (CRAMS) wherein they manufacture fluorine molecules through R&D for the customers. The said fluorine molecules is used in specialized advanced pharmaceuticals by the client (like Pflizer, vertex, Noverts Gilead etc in USA) i.e. used into the manufacturing of their Active Pharmaceuticals ingredients (API) which they were developing at their end to get it parented and which they would launch in next 3.8 years time for the trade. Thus, Noticee manufactures the goods under contract which will be used by the clients for their R&D purpose. Thus, goods manufactured by the Noticee is manufactured under contract and are special purpose goods and thus are of no use to other customers - as per the contract Noticee cannot share the chemistry developed/manufactured/sell these product developed to any other customer. Therefore, there is no possibility of clandestine removal.
The goods which were there in stock were manufactured for the purpose of export under the contract which establish the fact that goods were not meant to be removed clandestinely with intent to evade duty. Therefore, the charges of suppressing with intent to clear the same clandestinely are not sustainable. There is otherwise no evidence on record to prove any intention of clandestine clearance. Above all there is no evidence on record to prove any intention of clandestine clearance - penalty set aside.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 854 - CESTAT CHANDIGARH
Classification of goods - rice bucket elevator - rice conveyor - the appellants were classifying these goods under heading No. 8437 as “machinery used in Milling Industry” where the tariff rate is nil - according to the department these goods are classifiable under heading No. 8428, as “other lifting, handling, loading or unloading machinery - whether the impugned goods are classifiable under CETH 8428 or under CETH 8437 of CETA?
Held that:- An identical issue decided in the case of Alpsco Graintech Pvt Ltd & Ors vs. CCE & ST-Chandigarh [2018 (12) TMI 478 - CESTAT CHANDIGARH], where this Tribunal has examined the issue and held on merit classification on the items in question under chapter heading No. 8437 of Central Excise Tariff Act, 1985.
The conveyors and elevators specifically manufactured as the part of rice milling machinery alongwith other machinery of rice by the appellant merit classification under chapter heading No. 8437 of CETA, 1985 - demand of duty against the appellant alongwith interest is not sustainable - penalty not imposable.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 853 - CESTAT KOLKATA
Demand of Interest - Distribution of credit of service tax paid - reverse charge mechanism - input service distribution - Rule 7A of the Cenvat Credit Rules - Held that:- The appellant had taken credit but not utilized the same and reversed the same prior to the issuance of the show cause notice. The Adjudicating Authority following the Board’s Circular dated 03.09.2009 observed that interest is payable even when credit has not been utilized.
Larger Bench of the Tribunal in the case of J.K.Tyre & Industries Ltd. v. Asst. Commr. of C.Ex., Mysore [2016 (11) TMI 911 - CESTAT BANGALORE] held that wrong availment of Cenvat Credit, interest is not payable, if reversed before utilization - the demand of interest on unutilised Cenvat Credit, cannot be sustained - penalty sustained as was imposed for contravention of the Rules.
CENVAT Credit - GTA Services - Held that:- The issue is no more resintegra in view of the recent decision of the Hon’ble Supreme Court in the case of Commissioner of Central Excise, Belgaum vs. Vasavadatta Cements Ltd. [2018 (3) TMI 993 - SUPREME COURT], where it was held that It has to be from the place of removal upto a certain point. Therefore, tax paid on the transportation of the final product from the place of removal upto the first point, whether it is depot or the customer, has to be allowed.
The demand of cenvat credit is set aside - The demand of interest is also set aside - penalty imposed under Rule 15(3) of the Cenvat Credit Rules, 2004 is upheld.
Appeal allowed in part.
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2018 (12) TMI 852 - CESTAT CHANDIGARH
Classification of goods - rice bucket elevator - rice conveyor - whether classified under heading No. 8437 as “machinery used in Milling Industry” where the tariff rate is nil or are classified under heading No. 8428, as “other lifting, handling, loading or unloading machinery (for example Lifts, escalators, conveyors, Teleferice)?
Held that:- An identical issue came up before this Tribunal in the case of Alpsco Graintech Pvt Ltd & Ors vs. CCE & ST-Chandigarh [2018 (12) TMI 478 - CESTAT CHANDIGARH], where it was held that the entire machinery is classifiable under heading 8437 which is for machinery used in milling industry and it is not disputed that these elevators and conveyors being manufactured by the appellants were not used for milling industry.
The conveyors and elevators specifically manufactured as the part of rice milling machinery alongwith other machinery of rice by the appellants merit classification under chapter heading No. 8437 of CETA, 1985.
The demand of duty against the appellant alongwith interest is not sustainable - penalty also set aside - appeal allowed - decided in favor of appellant.
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