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Central Excise - Appellate Tribunal - Case Laws

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• 2022 (10) TMI 93
  
  Levy of penalty - Applicability of ration of decision made in the case of co-noticee - SSI Exemption - Clubbing of clearances - dummy units - Split Air conditioners - all such different entities are being owned by same person or not - documents which were obtained fraudulently by suppressing the facts or not - Confiscation - HELD THAT:- The Appellant 2 and Appellant 3 admitted to their role in the alleged activities for evading the central excise duty they also admitted the fact that they were collecting the duty @ 30 % on the value of goods supplied to their Customers as Central Excise Duty as per the contract, but were not paying the same to government account. Hence, there are no hesitation in holding that the both Shri Shrikant Shiwadkar and Shri Jayant Shiwadkar were in complete knowledge of the things in relation to clearance of the....... + More

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• 2022 (10) TMI 56
  
  Scope of SCN - time limitation - Disallowance of transitional Modvat credit - Levy of penalty upheld - invocation of extended period of limitation to deny Modvat credit for contravention of provisions of Rules 57H(1)(b), 57G, 173G and 173B of the Central Excise Rules, 1944 - suppression of facts or not - HELD THAT:- The Ld. Joint Commissioner has observed that the assessee has suppressed the fact of availing the benefit of SSI exemption under Notification No. 1/93-CE by not paying the duty on finished goods during the period in dispute i.e. 1994-95, which allegation was not made in the SCN dated 02.04.1996 and, therefore, the proceedings have travelled clearly beyond the scope of allegations made in the SCN which cannot be legally sustained. The main reason that has been assigned to disallow the credit in the impugned order is that the Ap....... + More

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• 2022 (10) TMI 7
  
  CENVAT Credit - capital goods - Welding Electrodes - case of appellant is that welding electrodes are used for fabricating Steel Formers (size: Diameter 1100mm & Height 2350mm with 16mm rods as Spiders inside) which are consumed in its induction furnace - levy of penalty - HELD THAT:- In view of the decision of the Hon’ble Calcutta High Court in CCE., KOLKATA-IV VERSUS HINDUSTAN ENGINEERING & INDUSTRIES LTD. [2010 (12) TMI 393 - CALCUTTA HIGH COURT], which is the jurisdictional High Court of this Bench, and particularly in the absence of any contrary decision holding the field, the issue regarding admissibility of Cenvat Credit on Welding Electrodes has to be decided in favour of the appellant, as the same being no longer res integra. Levy of penalty - HELD THAT:- In light of the undisputed fact that the Appellant was regula....... + More

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• 2022 (9) TMI 1338
  
  Clandestine Removal - Gutkha - period involved in the show cause notice is from December 2007 to 04.08.2008 - demand of duty alongwith levying penalty on Partner - HELD THAT:- It is not in dispute that the search was conducted on 04.08.2008. At that time the unamended rule 17(2), which had come into force on 01.07.20008, was operating. The amended rule 17(2) came into force on 20.10.2008 and there is nothing in the amended Rules that may show that they shall apply retrospectively w.e.f. 01.07.2008. The contention of the learned authorised representative appearing for the department that merely because the amended rule 17(2) states that such machine shall be deemed to have been in operation since 01.07.2008 it would mean that the amended rule 17(2) shall apply retrospectively from 01.07.2008 cannot be accepted The amended rule 17(2) would ....... + More

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• 2022 (9) TMI 1337
  
  CENVAT Credit - inputs (used in the Cement manufacturing process) or not - Welding Electrodes and Dissolved Acetylene Gas (D.A. Gas) - period from April, 2013 to June, 2017 - HELD THAT:- The adjudicating authority had observed that Welding Electrodes and D.A. Gas were used in the cement manufacturing plant of the Appellant for the purpose of repair and maintenance of its plant and machinery. This being observation of the adjudicating authority there is no denial of the fact that plant and machinery which were being used for manufacturing of final product were being kept in usable with condition periodic repair and maintenance, in which these two components were being used. Hence, both Welding Electrodes and D.A. Gas are required for smooth process of manufacturing, for which definition of input provided under Rule 2(k)(i) is squarely appl....... + More

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• 2022 (9) TMI 1336
  
  CENVAT Credit - capital goods or not - square rail - input services - insurance premium on motor vehicles owned by the Appellant - violation of Rule 16 of Central Excise Rules, 2002 read with Rule 9 of Cenvat Credit Rules, 2004 - duty paying invoices - suppression of facts or not - extended period of limitation - penalty. Denial of credit of 50% amounting to Rs.17,650/-, which has been used for construction of support structures for movement of cranes - HELD THAT:- The issue is no more res integra and is squarely covered by the decision of the Tribunal in the case of EURO CONTAINERS VERSUS COMMISSIONER OF C. EX., CHANDIGARH-I [2013 (9) TMI 1089 - CESTAT NEW DELHI] where reliance has been placed on Tribunal in the case of Mastech Technologies Pvt. Ltd. v. CCE, Jaipur-I [2013 (5) TMI 241 - CESTAT NEW DELHI], where it was held that the steel....... + More

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• 2022 (9) TMI 1293
  
  CENVAT Credit - input services - Repair and maintenance of factory/ office premises/plant and machinery - GTS Services - credit availed on the strength of invoices for freight for receipt of input/ fuel, issued by the supplier / trader - HELD THAT:- Admittedly appellant have received the construction service towards repair and maintenance carried out in the factory premises. The repair and maintenance have been specifically provided as input service in the in the inclusive clause of the definition, which provides for credit with regard to services received for repair of a factory or office relating to such factory. Further, this issue is squarely covered by the precedent order of this Tribunal in appellant’s own case M/S. BALKRISHNA INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL GOODS & SERVICE TAX AND CENTRAL EXCISE, ALWAR. [20....... + More

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• 2022 (9) TMI 1283
  
  Recovery of the irregularly availed Cenvat credit alongwith interest and penalty - appellant paid excess service tax on inward freight under the category of “Transport of Goods by road in a goods carriage", and subsequently availed excess Cenvat credit on input services - HELD THAT:- From the impugned order and the arguments as recorded the fact of payment of service tax is not in dispute. Once the fact of payment of service tax is not disputed the CENVAT Credit availed by the appellant which is equal to the tax paid cannot be disputed. In the case of THE COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS AJINKYA ENTERPRISES [2012 (7) TMI 141 - BOMBAY HIGH COURT], the Hon'ble High Court of Mumbai held that during the relevant period, that is, during the period from 2nd March 2005 to 31st December 2005, it could not be said that th....... + More

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• 2022 (9) TMI 1282
  
  CENVAT Credit - input services have been used in or in relation to the manufacture of the said dutiable final products as well as exempted goods - non-maintenance of separate records - period from July, 2010 to March, 2014 - requirement to pay an amount equal to 5% (effective up to 16.03.2012) and 6% (w.e.f.17.03.2012) of the value of exempted goods or not - HELD THAT:- This Tribunal in the case of M/S PHILIPS CARBON BLACK LTD., M/S PROMODE KUMBHAKAR VERSUS CCEX & SERVICE TAX, DURGAPUR AND CGST & EXCISE, BOLPUR VERSUS M/S PHILIPS CARBON BLACK LTD. [2020 (1) TMI 530 - CESTAT KOLKATA] had held that non-compliance of the procedure prescribed under Rule 6(3A) of the Cenvat Credit Rules, 2004 does not result in loss of substantive right of the assessee to avail the option of reversing proportional credit and such non-compliance is at b....... + More

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• 2022 (9) TMI 1281
  
  Reduction in the amount of refund, which was in the nature of predeposit - whether interest have been rightly allowed under Section 35FF of the Act? - principles of unjust enrichment - time limitation - HELD THAT:- A Division Bench of this Tribunal in the case of Parle Agro Ltd [2021 (5) TMI 870 - CESTAT ALLAHABAD], under similar facts and circumstances, have held that interest is payable also on the amount paid during investigation/audit as well as the amount of pre-deposit and further such interest is payable @ of 12% per annum, following the ruling of Hon'ble Supreme Court in the case of SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (1) TMI 55 - SUPREME COURT]. Hon'ble Madras High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE, COIMBATORE VERSUS M/S. PRICOL LTD., THE CUSTOMS, EXCISE & SERV....... + More

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• 2022 (9) TMI 1280
  
  CENVAT Credit - duty paying documents - case of Revenue is that the invoices of GMIPL are not valid documents for taking credit as they do not pay the service tax after taking credit of the tax paid by the broadcaster - suppression of facts or not - extended period of limitation - HELD THAT:- From the perusal of the invoices issued by the broadcaster, it is quite evident that the name of the appellant appears on each and every invoice of the service provider as recipient of the service. That being so the credit taken by the appellant on the basis of the invoices issued by the broadcaster cannot be denied as the invoices clearly show the recipient of service as appellant. Further now the appellants have received these services through M/s Group M Media India Pvt. Ltd., who have enclosed the invoices of the broadcaster alongwith their invoi....... + More

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• 2022 (9) TMI 1279
  
  Clandestine removal - Ingots - demands of duty made on account of alleged production based on the number of heats and alleged clandestine removal based on parallel invoices - demand based on the private production records of the appellant - demand based on the 12 parallel invoices recovered from the appellant’s office. Demand based on the number of heats of manufacture every day and the average quantity of MS Ingots produced per heat - HELD THAT:- According to the appellant itself the cross-section of the ingots is 3.5 inches X 4.5 inches. If the total volume of the ingots per inch is converted into cubic centimeters and the weight of 1.96 kg. per inch is considered, the density of the MS Steel ingots produced by the appellant is consistently around 7.59 gms. per cubic centimeter which is consistent with the density of the mild stee....... + More

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• 2022 (9) TMI 1278
  
  Grant of interest on the amount deposited during investigation which has subsequently been ordered to be refunded - interest at the rate of 6 per cent under the notification dated 21.08.2014 issued under section 35FF of the Central Excise Act, 1944 - HELD THAT:- The Allahabad High Court in Pace Marketing Specialties v/s Commissioner of Central Excise [2011 (8) TMI 796 - ALLAHABAD HIGH COURT] while granting interest at the rate of 12 per cent had relied upon the decision of the Supreme Court in SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (1) TMI 55 - SUPREME COURT] - the view taken by the Allahabad in Pace Marketing is followed by the Division Bench of the Tribunal in M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, NOIDA (VICE-VERSA) [2021 (5) TMI 870 - CESTAT ALLAHABAD]. The appe....... + More

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• 2022 (9) TMI 1277
  
  Area Based Exemption - activity of the appellant of making nail polish from base liquer and colour solution - process amounting to manufacture or not - eligibility of Notification dated 10.06.2003 - HELD THAT:- The issue involved in this appeal was considered and decided by a Division Bench of the Tribunal in GS PHARMABUTORS PVT. LTD. (UNIT-II) VERSUS ADDITIONAL DIRECTOR GENERAL, (ADJUDICATION) [2022 (2) TMI 615 - CESTAT NEW DELHI]. It was held that the appellant was entitled to the benefit of the area based notification dated 10.06.2003. The appellant, therefore, for all the reasons stated in the aforesaid Division Bench decision of the Tribunal in GS Pharmabutors, would be entitled to the benefit of the area based exemption Notification dated 10.06.2003 - Appeal allowed - decided in favor of appellant.

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• 2022 (9) TMI 1276
  
  CENVAT Credit - duty paying documents - Revenue was of the view that availment of Cenvat credit on the basis of order-in-original was not proper as per Rules 3 & 9 of the Cenvat Credit Rules - HELD THAT:- In the present case the appellant has not paid any excise duty for which they are required to make claim for refund of duty. It is the case where certain credit taken by them was sought to be denied and during the course of the proceedings for denial of such Cenvat Credit, the appellant reversed the entire credit sought to be disallowed to them. Subsequently major portion of such credit has been allowed to them. If Revenue had any objection to the order-in-original they should have preferred an appeal before the appropriate authority. By way of issuing second show cause notice they could not have denied the benefit granted to the appellant in the first round of proceedings. Appeal allowed.

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• 2022 (9) TMI 1275
  
  Eligibility for concessional rate of duty in terms of Notification No. 6/2011-CE dated 01.03.2011 - Perforated Nickel Cylinders (Screen) - HELD THAT:- The very same issue has been decided by this Tribunal in STOVEC INDUSTRIES LTD VERSUS C.C.E. -AHMEDABAD-I [2021 (12) TMI 240 - CESTAT AHMEDABAD] where it was held that the appellant has classified the impugned goods under CTH 844250 which includes “Plates,cylinders and other printing components;”. The appellant is entitles for benefit of Sno. 41 in list 2 of notification no. 06/2011-CE dated 01/03/2011. The appellant are entitled for the exemption Notification 6/2011-CE dated 01.03.2011 and subsequent exemption under Notification No. 12/2012-CE dated 17.03.2012 - Appeal allowed - decided in favor of appellant.

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• 2022 (9) TMI 1211
  
  Reversal of CENVAT Credit - breakage of glass beverage bottles - recovery of excise duty in respect of these breakages treating them as finished goods beverages, along with interest and penalty - HELD THAT:- The present case is not in respect of the loss of goods during storage or transportation but is case of the demand of the duty in respect of the breakages of glass bottles during storage and handling. Further the issue is with regards to applicability of the Circulars of 1971 and 1975 to determine whether the breakages was within the prescribed limit. Since the issue in our view is not covered by the above provision of the section 35 B of the Central Excise Act, 1944 the objection raised by the authorized representative cannot be sustained. The reliance placed by the Commissioner (Appeal) on the Circular dated 09.07.2010 to decide the....... + More

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• 2022 (9) TMI 1210
  
  Clandestine removal - MS Ingots - shortage of 623.275 M.T. of Ingots - statements were made voluntary or it was made under threat - reliability of panchnamas - pen drive is admissible evidence or not - mandatory procedure prescribed under section 36B, followed or not - HELD THAT:- When the statutory procedure was not followed, the pen drive is not admissible in evidence. Reliability of panchnamas - Stand taken is that Panch witnesses were not residents of the area and, therefore, the Panchnama itself was not proper - HELD THAT:- On a specific enquiry from the bench as to whether this issue was raised before the Original Authority in the reply to the show cause notice or during personal hearing, learned Counsel for the appellant showed us the reply dated 15.05.2018 to the show cause notice filed by the appellants before the Commissioner. T....... + More

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• 2022 (9) TMI 1122
  
  Refund of unutilized/accumulative Cenvat credit - inputs used in manufacture of goods exported under bond to a SEZ unit - quarter of April 2008 to June 2008 - Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 05/2006 dated 14.03.2006 - HELD THAT:- There is no denial to the fact that the assessee/respondent has cleared its final product to SEZ unit i.e. from DTA to SEZ and accordingly, the transaction in question admittedly was export of finally manufactured goods. The impugned refund claim along with the connected documents for the Quarter April 2008 to June 2008 was filed within the time limit of one year stipulated under Section 11B of Central Excise Act, 1944 - Since the refund claim pertains to the refund of Cenvat credit, the same was out of the bar unjust enrichment in terms of para C of provision to Section 11B(2) of C....... + More

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• 2022 (9) TMI 1121
  
  Disallowance of input service credit - group mediclaim policy - personal accident policy - time limitation - HELD THAT:- The issue in respect of the admissibility of cenvat credit in respect of group mediclaim policy and personal accident policy is no longer res integra for the period prior to the amendments made in April 2011 to the Cenvat Credit Rules. Admittedly in this case the entire period of dispute is prior to April 2011. The Commissioner (Appeals) should not have denied Cenvat Credit in respect of group mediclaim policy and personal accident policy to the extent it pertains to the employee only. However, the case law cited above although say that the benefit should not be admissible to that part of the service which is in respect of the family members of the employees, as the breakup of the part which is in respect of the employe....... + More

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