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Central Excise - Case Laws
Showing 81 to 100 of 106 Records
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2020 (2) TMI 306
Liability of excise duty - job-workers for manufacture of goods - HELD THAT:- The distinction between a manufacturer and an agent of the manufacturer and the liability to pay excise duty has not been investigated - the impugned order of the tribunal is set aside and it is directed it to rehear and redetermine the issue upon hearing the parties and by passing a reasoned order, preferably within four months of communication of this order - appeal allowed by way of remand.
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2020 (2) TMI 302
Recovery and demand of duty from the purchaser of goods in auction - auction by the official liquidator of the manufacturing company - Recovery u/s 11A(1) of the Central Excise Act, 1944 - provisions of Section 36A of the Central Excise Act, 1944 ignored - manufacturer of goods - time limitation - penalty - HELD THAT:- The Tribunal, after considering the submissions made on behalf of the respondent and considering the facts of the case, held that the assessee is neither a manufacturer of excisable goods nor purchased goods for purpose of manufacture of any product - In view of the finding of fact arrived at by the Tribunal holding that assessee is neither a manufacturer of excisable goods nor it has used purchased goods for manufacturing of other goods, no duty can be demanded under Section 11A(1) of the Act, 1994.
Appeal dismissed - decided against appellant.
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2020 (2) TMI 293
CENVAT credit - duty paying invoices - denial of credit on the ground that the invoices in respect of input services on which Cenvat Credit was availed, are bearing hand written numbers and in some of the invoices either Registration Number was not mentioned or the registration number was over written - HELD THAT:- The invoice should bear serial numbers, however, there is no mention in the rules that the invoice should bear Pre-printed Serial Numbers. Therefore, the invoice should be “Serially Numbered” irrespective, whether, it is hand written or Pre-printed. Therefore, the Learned Commissioners finding that the invoice should bear Pre-Printed Serial Numbers is not flowing - As regard non-mention of service tax registration or it is over written on the invoice the same is only procedural lapse, so long, there is no dispute regarding payment of service tax by the service provider. At the most, if the department has any doubt about the authenticity of the invoices due to the said discrepancies the department is free to carry out the verification of invoices at the service providers’ end to ensure that with reference to the invoices on which credit was availed, proper service tax was paid.
The Learned Commissioner proceeded to disallow the credit solely on the ground that the invoices do not bear the Pre-printed Serial Number and the Registration Number is not mention in the invoice or it is over written - merely for the for the said discrepancies cenvat credit cannot be denied as held in catena of judgments, some of which cited by the Learned Counsel, so long it is not under dispute that the service tax was paid by the service provider.
Since, Learned Commissioner has not given any finding on the submission of the appellant made in para (v) and (viii) of the impugned order, the matter needs to be re-considered only on the aspect that on the disputed invoices, the service providers have paid the service tax.
Appeal allowed by way of remand.
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2020 (2) TMI 290
CENVAT Credit - iron ore fines - Exempt goods or not - Whether the iron ore fines as cleared by the appellants can be considered as a separate excisable but exempted commodity?
HELD THAT:- In the present case, the finer iron ore/ the input as inevitably generated in the process of segregation is admittedly not usable in the klin for the purpose of manufacture of the final product i.e. the sponge iron. However, it is still the part of the input. The iron ore fines are therefore, held not to be the excisable commodity. The findings of original adjudicating authority are found to be correct. The findings of impugned order under challenge being contradictory to this effect are held liable to be set aside.
The Department has brought nothing on record to show that the iron ore fines can be considered as exempted goods. Apparently and admittedly, there is no Notification of the Revenue granting exemption to this product. Thus, the embargo created in Rule 6 (3) (b) of CCR will not apply for removal of iron ore fines from the appellant’s factory. Confirmation of demand by Commissioner (Appeals) is therefore, held to be not proper and justified.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 288
Classification of goods - Nimbooz - fruit pulp or fruit juice based drink - packaged nimbu pani - whether classifiable under Chapter Sub-heading No. 2202 9020 of Central Excise Tariff Act, 1985 or under 2202 1020 of CETA - benefit of exemption under Sl. No. 24 of Notification No. 1/2011-CE dated 01.03.2011 - HELD THAT:- An identical issue has been decided by the Hon’ble Larger Bench in M/S BRINDAVAN BEVERAGES PRIVATE LIMITED, KRANTI KUMAR CHANDRAKAR, M/S PEPSICO INDIA HOLDINGS PRIVATE LIMITED VERSUS COMMISSIONER CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, HAPUR AND BAREILLY [2019 (10) TMI 762 - CESTAT ALLAHABAD (LB)] and in view thereof, the classification declared by the appellant under the Chapter sub-heading 2202 9020 is held to be correct and hence the Revenue is not justified in reclassifying ‘’Nimbooz’’ as ‘’Lemonade’’ under Chapter sub-Heading 2202 1020.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 283
Classification of goods - LIC forms, Inland Letter for LIC, Premium intimation letter of LIC, Bank Statement forms & stationeries for other purposes for LIC, Insurance, Banks, Government organization and other continuous stationary for various Government department - whether classified under Chapter Sub Heading No 4820 40 00 of the Central Excise Tariff Act, 1985 or otherwise? - circular No 1052/1/2017-CX dated 23rd February 2017.
HELD THAT:- In view of the clarification issued by CBEC, we do not find any merits in the impugned order holding the classification of the impugned goods under Chapter Heading 4820.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 186
Reversal of CENVAT Credit - contravention of provisions of Rule 16 of the Central Excise Rules, 2002 and Rule 2, 3(2), 4 of the Cenvat Credit Rules, 2004 read with section 2(f) of the Central Excise Act, 1944 - period of dispute from October 2012 to March 2013.
Whether the Appellant has already reversed the amount of ₹ 11,06,691/- as Cenvat credit or not by making an entry in the books of accounts on 30/06/2017 and thereby reducing the amount of Cenvat credit to be transferred in TRAN 1 form in GST? - HELD THAT:- The Appellant has done the said reversal in the books of accounts and has thereby not carried the said Cenvat credit into GST regime. Further, the GST regime has been introduced w.e.f. 01/07/2017. Thus, there is no further reversal required in the matter. Hence the demand to the extent of ₹ 11,06,691/- as confirmed by the learned Commissioner (Appeals) deserves to be set aside.
Demand of interest - HELD THAT:- The Appellant has asserted that it had sufficient credit balance in its account and also produced a Chartered Accountant certificate for the same. Based on the applicable provisions under Rule 14 of the CENVAT Credit Rules, as was in force during the period from April 2012 to March 2013, It is held that the Appellant is not required to pay any interest.
Thus, since the appellant had sufficient credit balances, in any case, there would be no loss of Revenue to the exchequer. Therefore, the imposition of interest in the present proceedings cannot sustain and hence, the same is set aside.
Appeal disposed off.
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2020 (2) TMI 185
CENVAT Credit - duty paying invoices - duty paid invoices issued by registered dealers namely, M/s. Pranav Metal Mart, Nadiad without receipt of goods covered in the said invoices - penalty - HELD THAT:- Though the DGCEI has conducted thorough investigation but that is related to the transportation of goods from Delhi to the registered dealer i.e. M/s. Pranav Metal Mart, Nadiad. Even in the said investigation the only evidence found was that the truck by which the goods were transported from Delhi to Nadiad were carrying some other goods. However, otherwise the movement of vehicle from Delhi to Nadiad is not much in dispute. The appellant have purchased the goods from M/s. Pranav Metal Mart, Nadiad.
As regard transaction between the said registered dealer and the present appellant, no discrepancy was found. The investigation did not enquire anything from the appellant and they have not disputed the receipt of goods in their factory, recording the same in the books of accounts and excise records. The use of such goods and the manufacture of final product out of the said input and clearances thereof on payment of duty is not disputed. Entire case was based on the investigation between Delhi importers and the registered dealer i.e. M/s. Pranav Metal Mart - there are no sufficient, tangible and cogent evidences gathered to establish that the appellant have not received the inputs in their factory and fraudulently availed the Cenvat Credit only on the basis of invoice therefore, there are no basis for denial of Cenvat Credit to the appellant.
Penalties also set aside.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 184
CENVAT Credit - duty paying invoices - the service tax paid voluntarily without raising any supplementary invoices - Rule 9(1) (bb) of Cenvat Credit Rules, 2004 - revenue neutrality - extended period of limitation - HELD THAT:- The provisions of Rule 9(1)(bb) of the Cenvat Credit Rules, 2004 is not applicable to the facts of the case as the appellant has not availed credit on supplementary invoices but on the basis of delayed payment of service tax and the same cannot be the basis to deny the credit by invoking the provisions of Rule 9(1)(bb). Further the delayed payment of service tax voluntarily does not amount to suppression of fact with intent to evade payment of tax and hence denial of credit by invoking Rule 9(1)(bb) is not tenable in law.
Revenue Neutrality - HELD THAT:- The entire exercise of payment of service tax and availment of credit has resulted into revenue neutral situation - further, once the payment of service tax and availment of credit resulted in revenue neutral situation, then the exception created by Rule 9(1) (bb) of Cenvat Credit Rules is not applicable to the facts of the present case.
Extended period of limitation - HELD THAT:- Once the appellant has paid the service tax voluntarily and informed the Department accordingly, then denial of credit on the ground of suppression of fact by invoking longer period of limitation cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 183
CENVAT credit - exempt goods/by-product - Bagasse/Pressmud - period April, 2009 to October, 2010 - applicability of rule 6 of CCR - HELD THAT:- The issue of applicability of Rule 6(1) of CENVAT Credit Rules, 2004 to bagasse/pressmud which emerges during the course of manufacture of sugar and molasses, has been settled taking note of the judgment of Hon'ble Supreme Court in the case of UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT] in favour of the assessee.
Appeal allowed - decided in favor of assessee.
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2020 (2) TMI 182
Valuation - MRP based value u/s 4A or transaction value u/s 4 - shampoo sold in sachets - HELD THAT:- The goods in question itself is not required to affix MRP as per Rule 34(b) of Legal Metrology Act / Rules. The Tribunal in the case of Sarvotham Care Ltd. [2013 (4) TMI 505 - CESTAT BANGALORE] had analysed a similar issue and has held that The goods in the form of liquid packed in sachets though may be sold in numbers, it cannot be said that they are not being sold by weight or volume as each sachet contains pre-determined quantity of the liquid by weight as well as by volume.
The valuation done by the appellant under section 4 of the Central Excise Act, 1944 is correct. Therefore the demand made by the department under section 4A therefore cannot sustain - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 181
CENVAT Credit - duty paying invoices - fake invoices issued by non-existing suppliers - benefit of N/N. 34/2003-C.E vis-à-vis circular no. 703/19/2003-CX dt. 25-3-2003 - admissibility of appeal for hearing - monetary amount involved in the appeal - HELD THAT:- For duty demand of ₹ 25,544/- appellant had gone to the Hon’ble High Court as its appeal was not admitted for hearing because of operation of Section 35B that provides monetary limit to file appeal before the CESTAT. So primarily on point of law, this appeal is admitted for hearing in the CESTAT and factual aspect on which the issue of original appellant M/s. Accelerate Synthetic Pvt. Ltd. had gone for re-adjudication is un-related to this instant appeal as genuiness of the invoices received and availement of Cenvat Credit by M/s. Accelerate Synthetics Pvt. Ltd. would be determined in that re-adjudication process.
Going by the text of N/N. 34/2003-C.E, under para 1 (2)(a) it has been clearly mentioned that first or second stage dealer may, at his option, remove such goods after undertaking activities such as packing, repacking etc. on payment of amount equivalent to duty of excise, which is levyable on such goods, it can avail Cenvat Credit on the same. Therefore, the appellant may also exercise his option not to remove such goods but payment of equivalent duty on such goods was a pre-condition which is under dispute because the first dealer is i.e. original supplier of appellant has been prosecuted for non-payment of duty and availement of Cenvat Credit which was subsequently passed on to the appellant by the supplier. This being the factual scenario, it is on the supplier of appellant on whom duty liability is to be determined since the credit has been passed on to the appellant by supplier after all payments had been made by the appellant.
The denial of availment of Cenvat Credit on the ground that no physical movement of goods had taken place is also not in conformity to the procedure meant to be followed by the deemed textile manufactures - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 180
Valuation - inclusion of amortization cost of the mould in the manufacturing cost of the finished goods viz. articles of plastic - whether the amortization cost of the moulds be added @ 0.66% as observed by the learned Commissioner (Appeals) or @ 1.75% to cost of manufacture of plastic articles? - HELD THAT:- The said amortization percentage has been arrived at based on the Chartered Accountatn’s certificate and no contrary evidence has been placed by the Revenue to rebut the said finding of the learned Commissioner (Appeals). Also, the amount involved in the present appeal if calculated taking the revised amortization cost of mould @ 1.75% would definitely be less than ₹ 50.00 lakhs, hence covered by the Litigation Policy Circular dated 22.08.2019.
Appeal dismissed - decided against Revenue.
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2020 (2) TMI 179
Interest on delayed refund - grant of interest denied on the ground that Hon’ble CESTAT allowed the appeal of the appellant on the altogether new point and ground which was not existing at the time of rejection of the refund - Section 11BB of the Central Excise Act, 1944 - HELD THAT:- Admittedly the refund claim was filed on 29/12/2011 and the same was rejected by the original authority on 27/03/2012 and the appeal against the said order was also rejected by the Commissioner(Appeals) vide order dt. 17/10/2012. Further the Tribunal vide its Final order dt. 12/01/2018 has allowed the appeal of the appellant and in pursuance to the Final order, the original authority sanctioned the refund vide order dt. 02/08/2018 but did not grant interest which was demanded by the appellant for delay in sanctioning the refund.
Further, the only ground on which the interest has been denied by the original authority and upheld by the appellant authority is that the CESTAT has allowed the appeal on altogether different ground which was not existing at the time of rejection of refund claim. Further, the appellant has raised the ground of closure of business before the Commissioner(Appeals) and also agitated the same at the time of personal hearing on 09/07/2012 itself and this fact is clearly recorded by the Commissioner(Appeals) in his order dt. 17/10/2012 in para 3 which is reproduced. Once the appellant has taken the ground of closure of factory in the year 2012 itself before the Commissioner(Appeals), then thereafter the adjudicating authority holding that the Tribunal has allowed the appeal on altogether new ground is not sustainable in law.
The impugned order is not sustainable in law and the same is set aside by allowing the appeal of the appellant - The original authority will quantify the interest after the expiry of 3 months from the date of filing of the refund claim till the interest is finally sanctioned - appeal allowed by way of remand.
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2020 (2) TMI 174
CENVAT Credit- input services - “renting of immovable property” outside the manufacturing unit - place of removal - HELD THAT:- The Commissioner (Appeals) had rejected appellants appeal on the ground that sale of goods that had taken place from the immovable property taken on rent was situated away from the place of removal. Further appellant had acknowledged to have registered as an ISD. Therefore, availing total credit on renting services in the factory was not convincing as the rented premises were used for marketing and sale of goods manufactured in both the units of appellant’s factory.
Also, appellant had replied to the query of the respondent department concerning its registration as ISD in which case, as an input service distributor, it had the discretion to distribute the inputs but the Commissioner (Appeals) had not believed its reply by observing that appellant was using the rented premises for sale of goods and marketing of products being manufactured in two units of Appellant and such issue of ISD registration was not agitated in the show cause notice. What is more important is that the Commissioner had accepted the Appellant’s contention that appellant was using the rented premises for “marketing” purposes which is in conformity to Rule 2(l) of Cenvat Credit Rules that clearly covers “advertisement or sales promotion” within the definition of input services. Therefore, appellant is eligible to avail the credits and its specific non-reflection in ER-1, could be due to non-availability of such specific narration in the format meant for filing of ER-1 returns itself.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 173
CENVAT Credit - duty paying invoices - credit denied on the sole ground that the invoices issued by the service provider are not in the name of the appellant but in the name of the principle manufacturer - HELD THAT:- The proviso to Rule 9(2) states that credit shall not to be denied on the ground of lack of documents if the particulars with respect to details of service tax payable, description of taxable service, assessable value, service tax registration number of the person issuing invoice and his address which otherwise are available on record. The provision extends power to the authorities to allow the credit in case these details are available in the documents submitted - The documents produced clarifies that all the requisite details as mentioned in the proviso to sub rule 2 of Rule 9 ( as mentioned above ) were made available to the Department while availing the credit by the appellant. In such circumstances, the denial of credit for the sole reason that the invoices issued by the service provider were not in the name of the appellant who was the availing credit is not justifiable.
Thus, it stands clarified that the other conditions for availing cenvat credit were fulfilled by the appellant who admittedly had paid the service tax. There remains no more requirement of invoice to be in his name only, Hence order under challenge is held unreasonable passed ignoring the intent of Rule 9 CCR, 2004. Otherwise also, the availability of Cenvat Credit is a substantial relief. The same cannot be denied merely on the ground of procedural lapse.
Credit allowed - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 140
CENVAT Credit - by-products/exempt goods - Bagasse, press mud generated during the course of manufacture of sugar, molasses - manufacture of taxable as well as exempt goods - Board’s Circular No.1027/15/2016-CX, dt.25.04.2016 - applicability of Rule 6 of CCR - HELD THAT:- The issue is covered by the judgment of this Tribunal in series of cases and also the recent judgment of Hon'ble Allahabad High Court in the case of M/S BALRAMPUR CHINI MILLS LTD. THROUGH ITS GENERAL MANAGER VERSUS UNION OF INDIA, MINISTRY OF FINANCE DEPARTMENT OF REVENUE [2019 (5) TMI 972 - ALLAHABAD HIGH COURT] Where quashing the Board’s Circular for the period after issuance of Notification No.06/2015-CE(NT), dt.01.03.2015, Hon'ble High Court observed that Rule 6 of the CENVAT Credit Rules would have no application for reversal of CENVAT Credit in relation to Bagasse.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 139
CENVAT credit - exempt goods/by-product - Bagasse/Pressmud - period April, 2009 to October, 2010 - applicability of rule 6 of CCR - HELD THAT:- The issue of applicability of Rule 6(1) of CENVAT Credit Rules, 2004 to bagasse/pressmud which emerges during the course of manufacture of sugar and molasses, has been settled taking note of the judgment of Hon'ble Supreme Court in the case of UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT] in favour of the assessee.
Appeal allowed - decided in favor of assessee.
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2020 (2) TMI 136
SSI exemption - clubbing of clearances - dummy unit or not - mutual financial dependence over other unit or not - HELD THAT:- The Department has failed to discharge its burden for proving the financial dependence of M/s.Siddharth Plastoware upon the appellant. They have also failed to prove the final product of two of the units to be common. Thus, M/s.Siddharth Plastoware is wrongly confirmed to be the dummy of the appellant by the adjudicating authority below. Resultantly, the clubbing of clearances of two is not sustainable. There is no denial of the Department that individually their clearances are less than 1.5 Crores. Benefit of S.S.I. Exemption, therefore, cannot be denied to them - Otherwise also both the industries fall within the rural area, as is apparent from address that they lie in Khasra No.29 & 30.
Penalty - HELD THAT:- Since demand in question is held unsustainable and that the confirmation thereof has been set aside, there can be no sustainability of the penalty upon Shri Harphool Singh Jhuria the appellant. The amount of ₹ 25 Lakhs as was debited from the appellant’s account due to en-cashing of one of the three cheques issued by the appellant has therefore, to be refunded back to the appellant.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 36
CENVAT credit - denial for want of duty paying documents - scope of SCN - HELD THAT:- There is no denial about the receipt of the inputs/raw-material by the respondent-assessee in their factory from their another unit at Haridwar for those inputs/raw-material to be used in the manufacture of dutiable final product by the assessee-respondent. There is also no denial to the facts that liability towards Excise Duty on such final product has already been discharged by the appellant. Apparently and admittedly, under Rule 9 (1) an invoice and Bill of Entry are valid documents based on which a manufacturer of final product can avail credit.
The allegation of the show cause notice are pointing merely a procedural lapse - Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. A procedural prescription is the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. The endorsed invoice otherwise qualify the intent of the legislature in terms of proviso to Rule 9 (2) of CCR.
Appeal dismissed - decided against appellant.
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