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Central Excise - Case Laws
Showing 1 to 18 of 18 Records
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2020 (5) TMI 610
Maintainability of appeal - appropriate forum - applicability of notification No.13/2008-CE dated 01.03.2008 amending the notification No.108/95-CE dated 28.05.1995 - Section 35G or 35L of the Central Excise Act? - HELD THAT:- A conjoint reading of Section 35G and 35L, it could be seen that an appeal would lie to this Court against every order passed in an appeal by the appellate tribunal, if the case involves a substantial question of law. However, exception to this general rule is that an appeal would lie before the Hon’ble Apex Court and not before this Court against an order relating, amongst other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment.
The aforesaid authoritative principles by the Hon’ble Apex Court in the case of COMMISSIONER OF CUSTOMS, BANGALORE-1 VERSUS M/S MOTOROLA INDIA LTD. [2019 (9) TMI 229 - SUPREME COURT] where it was held that if order of the Appellate Tribunal would go beyond interse disputes between the parties and may effect large number of cases, such an issue would partake the character of one of ‘General public importance’. Comparative analysis of Section 35G and 35L of the Central Excise Act would indicate they are mutually exclusive. Therefore, dispute which would be in the domain of Section 35L cannot be held or presumed that it would incidentally fail with domain under Section 35G also. Parliament would not have envisaged of vesting overlapping of the jurisdiction.
The dispute does not restrict itself to inter party rights, but extends to class or category of assessees like the respondent herein, inasmuch as, interpretation of the notification dated 01.03.2008 is the subject matter of this appeal. Thus, issue as to whether the said notification would empower the revenue to deny the exemption provided under the notification dated 28.08.1995 is an issue which has to be determined by formulating substantial question of law framed in that regard and same has to be answered - the issue involved relates determination of excercisibility of the goods for the purposes of assessment by virtue of the clarificatory notification dated 01.03.2008.
An appeal under Section 35G before this Court would not be maintainable and appellant–revenue has to pursue its grievance by filing an appeal under Section 35L before the Hon’ble Apex Court - Appeal filed under Section 35G is held to be not maintainable and reserving liberty to the appellant to present this appeal before Hon’ble Apex Court under Section 35L - appeal dismissed.
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2020 (5) TMI 609
CENVAT Credit - input services - Garden maintenance - housekeeping within the factory premises - HELD THAT:- The issue regarding admissibility of CENVAT Credit in respect of garden maintenance is squarely covered by the decision of Tribunal in the case of M/S NHAVA SHEVA INTERNATIONAL CONTAINER TERMINAL PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIGAD [2017 (4) TMI 805 - CESTAT MUMBAI] where it was held that It is apparent that credit for the sewage treatment plant and for the garden maintenance cannot be denied as the same are statutory requirement for operating the Port - credit allowed.
House Keeping - HELD THAT:- The consent obtained from the Pollution Control Committee by the appellant is subject to the condition that the appellant shall maintain good housekeeping in the factory premises. Thus, maintenance of good housekeeping is requirement to run the factory. Hence, the credit on same count cannot be denied.
Penalty is set aside - Appeal allowed - decided in favor of appellant.
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2020 (5) TMI 587
Valuation - manufacture and clearance of physician samples - sale on principal to principal basis - applicability of Rule 4 of the Central Excise Valuation Rules, 2004 or Section 4(1)(a) of the Central Excise Act, 1944 - HELD THAT:- This Tribunal following the ratio laid down by Hon’ble Supreme Court in COMMR. OF CENTRAL EXCISE & CUSTOMS, SURAT VERSUS M/S SUN PHARMACEUTICALS INDS. LTD. & ORS. [2015 (12) TMI 670 - SUPREME COURT], observed in the case of M/S MEDISPRAY LABORATORIES PVT. LTD., M/S MEDITAB SPECIALITIES PVT. LTD., AND M/S OKASA PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, GOA [2017 (2) TMI 309 - CESTAT MUMBAI] where it was held that the physician samples manufactured and sold by Okasa Pvt. Ltd. to their principal, the transaction is on principal to principal basis. Therefore, whatever goods were sold by the appellant to their principal is correct transaction value in terms of Section 4.
Appeal allowed - decided in favor of appellant.
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2020 (5) TMI 521
CENVAT Credit - capital goods or not - structural items used for supporting the capital goods - HELD THAT:- From the definition of capital goods, it is clear that anything which can be called as component spare and accessory of the goods falling under Chapters 82, 84, 85 and 90 of the Excise Tariff Act shall also be called as capital goods - In the present case, it is the submission of the appellant that the MS Structure is neither fabricated nor has been erected post fabrication by the appellant, but it has been purchased from the manufacturer of the boiler, the capital good itself. The said broilers are used in manufacture of appellant's final product. It is emphasized that the boiler manufacturer himself is selling the structure, it being utmost necessary for the said boiler to be put to use.
The invoices as emphasized by the appellant (as placed on record) sufficiently supports the contention of the appellant. What stands excluded to be called as input is the structure which is fabricated out of the objects like MS Angles/Sheets/ Joints Fights, etc. The same is not true for the structure in the present case. Mere nomenclature of a part of the boiler as MS Structure is not sufficient to falsify the ‘User Test’ principle as was laid down by Hon'ble Apex Court in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS LTD. [2010 (7) TMI 12 - SUPREME COURT].
The issue involved herein is no more res integra. It rather stands decided in favour of appellant itself in another appeal. The appellant has otherwise proved the MS Structure to not to be fabricated by the appellant but to have been purchased as an integral part of his capital goods i.e. biomass boiler, required by appellant to manufacture its final product i. e. Soap - appeal allowed - decided in favor of appellant.
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2020 (5) TMI 505
Monetary amount involved in the appeal - prosecution of appeal - Circular bearing No.F.No390/Misc/163/2010-JC dated 17.08.2011 - whether such appeal filed by the revenue against order dated 08.08.2018, which involved the tax component of ₹ 1,81,754/- could not have been prosecuted or not?
HELD THAT:- By Circular dated 17th August 2011 referred herein, monetary limit fixed for the Appellate Tribunal to adjudicate the appeal had been restricted to ₹ 5 lac and above. The said monetary limit came to be enhanced upto ₹ 10 lac by Circular dated 17th December 2015. The Central Board of Excise & Customs by its extent Instruction F.No.390/Misc./163/2010-JC dated 1st January 2016 has clarified that Circular dated 17th December 2015, whereunder monetary limits for Appellate Tribunal, High Courts and Supreme Court entertaining the appeal has been fixed is to be understood as also applicable to all pending appeals before CESTAT and High Courts - an appeal which was pending as on the date of 1st January 2016, within monetary limit fixed under Circular dated 17th December 2015. Then such appeals were not maintainable before CESTAT.
This aspect having been noticed by Tribunal in the instant case could not have entertained the appeal by Revenue. It was required to be dismissed as monetary limit fixed was ₹ 10 lac and in the instant case, the quantum of refund, which was subject matter of appeal, was ₹ 1,81,754/-.
Appeal allowed - decided against Revenue.
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2020 (5) TMI 504
Classification - Clearance of 2nd lamp with the set of "Solar Power Generating System" or "Solar Photovoltaic Lantern" to M/s Aura Solar Products Pvt Ltd - Benefit of Exemption - Notification No 6/2002-CE - recovery of Central Excise duty with interest and penalty - HELD THAT:- The manner in which the goods were being cleared by the appellant was in a package comprising of two lanterns along with a solar photovoltaic panel. SPV Panel having capacity and provisions to charge both the lanterns simultaneously. The packaging and the manner of marketing the product also suggest that both the lamps in the package are marketed as solar lanterns. It is an admitted fact and a fact not in dispute that appellants do not sell the single lantern individually or separately. That being so revenue has no jurisdiction to vivisect the package and classify one lantern separately. The classification of the goods need to be determined in the form and manner in which the same is cleared and not by unbundling/ vivisecting the package into individual components to determine their classification.
While the goods in the form in which it is cleared was with the SPV Panel whereas the sample was without the SPV Panel. Further the opinion clearly states that the batteries of the lamp can be charged with the solar power normally but in emergency or non availability of solar power the same can be re-charged by using the normal power source with a suitable adapter. For classifying the one of two lamps in the package revenue has relied on the fact that it can be charged with the normal power supply using suitable adaptors. While doing so they ignore the fact that the technical opinion given by the IIT Professor clearly states that the normal mode of charging the batteries in the lamps will be solar power only - Further it is not even the case of revenue that the package was being cleared with a suitable adapter to charge the batteries using normal power supply.
Thus, the goods in the form and manner in which they are cleared for sale to consumers are nothing but "Solar Power Generating System" or "Solar Photovoltaic Lantern" and the exemption claimed by the appellants in respect of same under Sl No 237 of Notification No 6/2002-CE as amended (Sl No 18 of List 9) as claimed by them is admissible to the whole package. The vivisection of the package to classify a part of such package and deny exemption in respect of one lamp out of the is neither justified nor having any basis in law.
Appeal allowed - decided in favor of appellant.
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2020 (5) TMI 503
Valuation - inclusion of amount of sales tax paid by the appellant in the form of VAT 37B Challan in the assessable value - HELD THAT:- The matter is already been decided by this 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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2020 (5) TMI 472
Refund of CENVAT Credit - while entertaining the refund claim of the appellant, various adjustments were required to be done against various demand and rebate claim filed by the appellant - HELD THAT:- While entertaining the refund claim, the adjudicating authority has observed that refund claim of ₹ 4,97,809/- has been withdrawn by the appellant being inadmissible. But, no finding has been given by the adjudicating authority, how this calculation has been arrived at. In view of this, the adjudicating authority is required to provide the details of admissible refund claim sought by the appellant of ₹ 4,97,809/-. Therefore, the impugned order qua rejecting the refund claim of ₹ 4,97,809/- on the ground that the same is not admissible and withdrawn is set aside and the matter is remanded back to the Adjudicating Authority. The adjudicating authority is required to give details of the admissible and not admissible refund alongwith co-relation sheet.
The appellant is directed to produce the order of this Tribunal before the concerned Assistant Commissioner who within a period of seven days of receipt of this order shall quantify the actual amount of refund - appeal allowed by way of remand.
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2020 (5) TMI 448
Supply of bus chassis to Delhi Metro Railway Corporation (DMRC) - benefit of N/N. 6/2006-CE dated 01.03.2006 - HELD THAT:- The Hon’ble High Court in M/S. AZAD COACH PVT. LTD. VERSUS DELHI METRO RAIL CORPORATION LTD. & ANR [2019 (4) TMI 1863 - DELHI HIGH COURT] and Supreme Court in M/S. AZAD COACH PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE JAIPUR [2019 (12) TMI 1303 - SC ORDER] have directed that as the matter relating to valuation for the levy of duty on such bus supplied to the appellant by Tata Motors and finally to DMRC through Tata Motors, the appellant is also entitled for similar exemption under Notification No. 6/2006. Accordingly, the Hon’ble High Court read with order of Hon’ble Supreme Court referred to in above have directed this Tribunal for re-quantification of the value of duty payable in the light of exemption now available for the transaction under dispute.
The final order stands modified and the matter is remanded to the original adjudicating authority for re-quantification of duty liability considering the exemption now available to the appellant as per exemption Notification No. 06/2006 CE. - appeal allowed by way of remand.
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2020 (5) TMI 392
Remand of the case - Coordinate Bench of this Court [in which Dr.Vineet Kothari, J. was one of the Member] in the case of THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, COIMBATORE. VERSUS PRICOL LIMITED, CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, SOUTH ZONAL BENCH CHENNAI [2019 (8) TMI 759 - MADRAS HIGH COURT] had also upheld the remand of the matter to the Tribunal - HELD THAT:- Since the matter already stands remanded back to the First Appellate Authority by the order of the learned Tribunal, we are not inclined to make any observations on the merits of the case and the parties are directed to raise their rival contentions before the First Appellate Authority - the First Appellate Authority will decide the case in accordance with law - Appeal disposed off.
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2020 (5) TMI 317
CENVAT Credit - capital goods - cement, rebar coils, TMT bars and MS rebar utilized in foundation of machinery, machinery foundation, recovery foundation, ESP foundation, storage tanks etc. - HELD THAT:- So far storage tank is concerned, this is a specific item of capital goods mentioned in Rule 2 (a)(A)(vii) of CENVAT Credit Rules, 2004.
Other items of iron and steel - HELD THAT:- These items are admittedly utilized in the foundation and erection of machinery, the issue stands settled in favour of the appellant by ruling of Hon’ble Madras High Court in the case of M/S. INDIA CEMENTS LTD. VERSUS THE CUSTOM, EXCISE AND SERVICE TAX & THE COMMISSIONER OF CENTRAL EXCISE, [2015 (3) TMI 661 - MADRAS HIGH COURT] and also by the Hon’ble Gujarat High Court in the case of MUNDRA PORTS AND SPECIAL ECONOMIC ZONE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & CUSTOMS [2015 (5) TMI 663 - GUJARAT HIGH COURT].
Appeal allowed - decided in favor of appellant.
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2020 (5) TMI 223
Refund of excess duty paid for the month of April, 2012 - compounded levy scheme - HELD THAT:- Through the order of the Adjudicating Authority dated 01.04.2019 and entertaining various refund claims of the appellant but have no whisper of any word about the refund claim for the month of April, 2012 wherein refund claim of excess duty of ₹ 9,50,000/-, Machine No. 2 was sealed for the period 16.04.2012 to 30.04.2012, which shows the negligence on the part of the Adjudicating Authority for not entertaining the refund claim despite the direction of the Tribunal vide order dated 10.10.2017.
The Adjudicating Authority is directed to entertain the refund claim for the month of April, 2012 within a period of seven days from the receipt of this order and pass the order in accordance with law, if it is held that the appellant is entitled for the refund of excess duty, the same shall be paid alongwith interest - Appeal disposed off.
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2020 (5) TMI 199
Excisability/dutiability/marketibility - by-product - captive consumption - Carbon dioxide generated during the process of fermentation of beer, and used inhouse for carbonation of beer - HELD THAT:- The issue herein is squarely covered by the precedent decision of Division Bench of this Tribunal in the appellant’s own case COMMISSIONER OF CENTRAL EXCISE-LUDHIANA VERSUS M/S UNITED BREWERIES LTD. [2015 (6) TMI 262 - CESTAT NEW DELHI] where it was held that just because, the respondent were purchasing carbondioxide from other suppliers, it cannot be presumed that the carbondioxide generated in their unit was of the same character and properties as the gas being purchased from outside and hence, would be marketable.
Appeal allowed - decided in favor of appellant.
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2020 (5) TMI 150
CENVAT Credit - input services - exempt services or not - denial for the reason that the activity of machining operations is an exempted service as per Notification No.25/2012-ST dt. 20.06.2012 (Sl.No.30) - HELD THAT:- When the semi finished gods are received by the job worker under challans as per Rule 4 (5) (a), it can be understood that the activity undertaken by the appellant is also part of the manufacturing activity. In other words, the job worker manufactures on behalf of the principal manufacturer. The notification No.214/86 helps to decide as to who has to pay Central Excise duty on the finished goods when manufacturing activity is carried out using job work facility.
Since the appellants are doing part of the manufacturing activity, it cannot be said that the activity undertaken by them is service which is exempted under Notification No.25/2012-ST. Even if the process carried out by the appellant does not amount to ‘manufacture’, when N/N. 214/86 comes into application it has to be understood that the job worker is undertaking part of the manufacturing activity on behalf of the principal manufacturer.
The Tribunal in the case of M/S. SHREE ORGANO CHEMICALS AHMEDABAD P. LTD VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, AHMEDABAD [2019 (2) TMI 852 - CESTAT AHMEDABAD] had occasion to consider a similar situation and has held that the credit availed in respect of job work activities would be eligible to the assessee.
Credit allowed - appeal allowed - decided in favor of appellant.
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2020 (5) TMI 95
CENVAT Credit - exempt goods - denial of CENVAT Credit on capital goods on the ground that the amendment to Rule 6(4) does not have retrospective effect - HELD THAT:- As per the submissions made by Appellant before the Adjudicating Authority, they have paid duty in the month of April 2017 and June 2017. The Adjudicating Authority has decided on the interpretation of amendment and no verification was done as regards the payment of duty.
If on verification if it is found that appellant have cleared goods on payment of duty, from the date of taking credit they will be entitled for Cenvat credit, subject to condition that dutiable goods should be cleared within two years from the date of commencement of production of goods or installation of such capital goods, as the case may be.
The matter is remanded to the Adjudicating Authority to decide the matter afresh - Appeal allowed by way of remand.
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2020 (5) TMI 63
Classification of goods - car matting - classified within Chapter 57 of the First Schedule to the Central Excise Tariff Act, 1985 under the heading “Carpets and Other Textile Floor Coverings” or they would be classified under Chapter 87 thereof, which relates to “Vehicles other than Railway or Tramway Rolling-Stock and Parts and Accessories Thereof”?
HELD THAT:- Three cases have been decided by the Tribunal in COLLECTOR OF C. EX., BOMBAY-II VERSUS STERLING INDIA [1999 (7) TMI 704 - CEGAT, NEW DELHI], COLLECTOR OF CENTRAL EXCISE VERSUS SWARAJ MAZDA [1993 (7) TMI 186 - CEGAT, NEW DELHI], and JYOTI CARPET INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR-I [2001 (4) TMI 316 - CEGAT, NEW DELHI] which obviously has no precedent value for us - We however, discussed these cases only for the purpose of ascertaining as to whether the revenue authorities had been treating car mats as a subject head under sub-heading 8708, on proper analysis of competing claim of the assessees to include them in sub-heading 5703. We do not find so from these decisions of the Tribunal.
There are authorities in which it has been held that the popular meaning among consumers would be a major factor for interpretation of dispute relating to classification - This principle has been laid down in the cases of PLASMAC MACHINE MFG. CO. PVT. LTD. VERSUS COLLECTOR OF CENTRAL EXCISE [1990 (11) TMI 142 - SUPREME COURT] and DABUR (INDIA) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, JAMSHEDPUR [2005 (4) TMI 57 - SUPREME COURT] - In the case of Dabur India Ltd, it was held that In classifying a product the scientific and technical meaning is not to be resorted to. The product must be classifiable according to the popular meaning attached to it by those using the product.
Emphasis on technical meaning has been highlighted in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS M/S WOCKHARDT LIFE SCIENCES LTD [2012 (3) TMI 40 - SUPREME COURT] for resolving classification related disputes of goods. In this case, it has been held that a commodity cannot be classified in a residuary entry if there is a specific entry, even if the specific entry requires the product to be understood in a technical sense.
“The common parlance test”, “marketability test”, “popular meaning test” are all tools for interpretation to arrive at a decision on proper classification of a tariff entry. These tests, however, would be required to be applied if a particular tariff entry is capable of being classified in more than one heads. So far as subject-dispute is concerned, we have already referred to Chapter note 1 of Chapter 57. This note stipulates that carpets and other floor coverings would mean floor coverings in which textile materials serve as the exposed surface of the Article when in use. This feature of the car mats has not really been rejected by the revenue authorities as untrue in the order of the Commissioner, before whom assertion to that effect was made by the respondent - Chapter 87 of the Central Excise Tariff of India does not contain car mats as an independent tariff entry. We have reproduced earlier the various parts and accessories listed against tariff entry 8708. All of them are mechanical components, and revenue want car mats to be included under the residuary sub-head “other” in the same list. The HSN Explanatory Notes dealing with interpretation of the rules specifically exclude “tufted textile carpets, identifiable for use in motor cars” from 87.08 and place them under heading 57.03.
The main argument of the appellant is that because the car mats are made specifically for cars and are used also in cars, they should be identified as parts and accessories. But if we go by that logic, textile carpets could not have been excluded from Parts and Accessories. We have referred to such exclusion in the preceding paragraph. It has also been urged on behalf of the revenue that these items are not commonly identified as carpets but are different products. The Tribunal on detailed analysis on various entries, Rules and Notes have found they fit the description of goods under chapter heading 570390.90. We accept this finding of the Tribunal.
Once the subject goods are found to come within the ambit of that sub-heading, for the sole reason that they are exclusively made for cars and not for “home use” (in broad terms), those goods cannot be transplanted to the residual entry against the heading 8708 - As the subject-goods come under the chapter-heading 570390.90, and the other entry under the same Chapter forming the subject of dispute in the second order of the Commissioner, there is no necessity to import the “common parlance” test or any other similar device of construction for identifying the position of these goods against the relevant tariff entries.
Appeal dismissed.
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2020 (5) TMI 62
Maintainability of appeal - non-prosecution of the case - HELD THAT:- Office objections to be removed within a period of two weeks, failing which, the concerned matter shall stand dismissed for non-prosecution.
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2020 (5) TMI 61
Stay of impugned order during pendency of the appeal - impleadment as a respondent - SSI Exemption - clubbing of clearances - HELD THAT:- The court is of the view that a prima facie case has been made out for grant of exparte interim relief.
Issue Notice, returnable on 29th January, 2020 - By way of ad-interim relief, the operation of the impugned order M/S JOLLY ELECTRICAL INDUSTRIES AND NILESH V SHAH VERSUS C.C.E. & S.T. VADODARA-II [2019 (10) TMI 95 - CESTAT AHMEDABAD] is hereby stayed.
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