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Central Excise - Tribunal - Case Laws
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- 2019 (11) TMI 897
Interest on refund - Time limitation - reversal of CENVAT Credit by coercion - calculation of interest after the expiry of three months from the date of receipt of application under Section 11B (1) of the Central Excise Act i.e. 10/10/2017 - HELD THAT:- The Department in fact compelled the appellant to reverse the credit in spite of stay in his favour though the appellant informed the Department that they have got the extension of stay but they could not produce the copy of the stay in time and therefore the Department coerced the appellant to reverse the credit. Further, in the present case the deposit made by the appellant was totally unauthorized because the CESTAT has given him complete waiver - Further it has been consistently held by the Tribunal that if the amount is not voluntarily paid by the assessee and later on the case is dec....... + More
- 2019 (11) TMI 831
Valuation - includibility of insurance and freight in assessable value - It was observed by the Revenue the amount collected by the appellant was in excess of the amount Freight, paid by the appellant to the transporter. Similarly insurance was connected in some cases where there was no corresponding payment to any Insurance Company. HELD THAT:- The decision of the Hon’ble Apex Court in case of COMMISSIONER OF CENTRAL EXCISE, NOIDA VERSUS M/S. ACCURATE METERS LTD. [2009 (3) TMI 1 - SUPREME COURT] is specifically covers the issue at hand - The Hon’ble Apex Court in the said case has held that Tribunal were correct in their view that the amount claimed by way of transportation charges and insurance cannot be considered for determining the value of the electric meters supplied. Appeal allowed - decided in favor of appellant.
- 2019 (11) TMI 830
Abatement of duty - closure of factory - Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010 - the appellant claimed abatement for the month of April 2015 inasmuch as the duty was deposited for the said period. However, for the next month i.e. May 2015 he did not deposit the duty for the period of closure till 15.05.2015 and claimed abatement himself. HELD THAT:- There is no dispute about the fact that the factory was continuously closed from 18.04.2015 to 15.05.2015. In such a scenarios, the assessee was entitled to the abatement of duty for the month of April 2015 as also May 2015 depending upon the closure period. The artificial bifurcation done by the Commissioner (Appeals) for April 2015 and May 2015 separately thus holding the period of closure in April was only 13 ....... + More
- 2019 (11) TMI 829
Valuation - job-work - manufacture of Plastic jerry can and pet bottles - case of the department is that the principal manufacturer are using the job worker manufactured goods in the manufacture of exempted goods, therefore, the job worker being a manufacturer are required to pay excise duty - extended period of limitation - HELD THAT:- In the case of THERMAX BABCOCK AND WILCOX LTD., THERMAX LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-I [2017 (12) TMI 266 - CESTAT MUMBAI], Division Bench of Mumbai Tribunal referred the matter to Larger Bench and then only the Larger Bench has held that in case of job worker when the procedure under Notification No. 214/86- CE is not followed and the principal manufacturer is not discharging the excise duty on their final product, job worker is required to pay excise duty. Therefore the appellants hav....... + More
- 2019 (11) TMI 782
CENVAT Credit - duty paying documents - Whether on the basis of documents recovered and various statements recorded during the investigation, the cenvat credit can be denied to the furnace units who has taken cenvat credit on the strength of the invoices issued by the scrap dealers, namely, M/s SST, M/s SMM and M/s YT? - imposition of penalties. HELD THAT:- The documents recovered from the bag which was found are photocopies and no original documents have been placed on record. Further, we find that that pen drive resumed from the godown of M/s SST on 27.11.2012 did not contain any incriminating documents. Moreover, the rolling mills who are alleged to be received goods without cover of invoice were not made part to the show cause notice. Reliability on statements - denial of cross-examination - HELD THAT:- During the cross examination, S....... + More
- 2019 (11) TMI 781
CENVAT Credit - Styrene Monomer and Acrylonitrite - Target Plus Scheme - credit was challenged by the Revenue on the ground that since Target Plus scheme is discontinued with effect from 01.04.2006, benefit of such scheme was not available - HELD THAT:- Revenue has essentially related the observation that since the Target Plus scheme was abolished, the certificates issued during the currency of the said scheme cannot be used thereafter. It is seen that utilization of certificates issued under Target Plus scheme is a matter which falls under the jurisdiction of Customs Authority and not under Central Excise authorities. The Customs authorities have allowed the certificates issued under Target Plus scheme and no demand of duty has been raised by the customs authorities in respect of such imports. Notification No. 73/2006-Cus has been issued....... + More
- 2019 (11) TMI 780
CENVAT Credit - duty paying documents - validity of documents on the basis of which the appellant has availed Cenvat credit - Rule 9 of the Cenvat Credit Rules reads with Rule 4A of the Service Tax Rules, 1994 - HELD THAT:- As is seen from the provisions of Rule 4A itself provides that in case of banking services invoice shall include any document by what so ever name called whether or not serial numbered or whether or not containing address of the person receiving taxable services. In the absence of any dispute of the tax paid and utilization of the said service we find that Commissioner (Appeals) has rightly allowed the credit to the respondent - there are no merits in the Revenue’s appeal - appeal dismissed - decided against Revenue.
- 2019 (11) TMI 721
SSI Exemption - Clubbing of clearances of six units - benefit of N/N. 08/03-CE dt.1.3.2003 - Dummy units - whether M/s. Premier Castings (M/s.PC), M/s. Castech Industries (M/s.CTI) and M/s.Dynocast Industries (M/s.DCI) are non existing and are dummy units of M/s. MWF? - HELD THAT:- The claim of the appellants is that the Revenue has relied upon the inculpatory statements which were retracted. The claim of the revenue is that retraction have not reached to the office of Commissioner, therefore the retraction cannot be acceptable. But we find that some of the witnesses were called for cross examination, during the course of investigation and while drawing panchnama at the time of visit, these firms were found non existing as they were closed earlier and no sale were effected in the name of firms which itself shows that the firms were alread....... + More
- 2019 (11) TMI 671
Benefit of exemption under N/N. 6/2003 - Procedural lapse - relevant date for calculation of benefit of notification - from which date KPCL is entitled to the exemption notification? - principles of unjust enrichment - HELD THAT:- KPCL filed an application for availing the benefit of Notification on 04/03/2003 itself but the Department wanted certain clarification as to whether the validity of the certificate issued as per Section 44 of the Indian Electricity Act, 1948 is still valid and the same was also verified vide letter dt. 24/04/2003 and 09/05/2003 - also except for this clarification, there is no dispute regarding the eligibility and other conditions to be satisfied by the appellant. Once the clarification was given by KPCL and finally edibility certificate was issued, the said certificate relates to the date of application i.e. 0....... + More
- 2019 (11) TMI 670
Interest on delayed refund - Section 11BB of the Central Excise Act - relevant time for calculation of interest - HELD THAT:- In the impugned order, no reasons have been given for not granting interest on the delayed refund. Further, it is found that admittedly, there is a delay in disbursal of the refund amount in the present case. Further, notwithstanding the fact that the sanctioned refund is merely belatedly paid but instead, first adjusted against some other demand and then later on disbursed to the assessee. Further, even the Board has clarified vide various circulars that the interest becomes payable after the expiry of a period of three months from the date of receipt of the application under sub-section 1 of Section 11BB of the Act. The original authority is directed to quantify the interest for the period after the expiry of 3 months from the date of filing the refund application till the amount is paid - appeal allowed - decided in favor of appellant.
- 2019 (11) TMI 669
Valuation - related party transaction - applicability of section 4 (1) (b) of Central Excise Act, 1944 read with Central Excise Valuation Rules, 2000 - short payment of duty - Scope of SCN - HELD THAT:- The show cause notice has been issued to the appellant on the basis of cost data that the appellant is selling the goods below the cost price, therefore, the selling price cannot be the assessable value of the goods in question. The appellant is located in the State of Jammu and Kashmir taking self credit/ refund of duty paid in cash. The duty paid in cash is an incentive to the appellant and if the same is taken into account then the appellant has earned the profit on the goods sold. In fact, cash incentive was given by way of duty paid in cash has been shared with their buyers. Therefore, the appellant earned profit on the goods sold by ....... + More
- 2019 (11) TMI 668
Rate of Interest on Refund of duty paid - Section 11B (1) of Central Excise Act, 1944 - Revenue has taken a stand that there has already been a notification No. 67/2003 dated 12.09.2003 by which the rate of interest has been fixed at 6% - however, the section records the range for rate of interest i.e. from 5% to 30% but section itself specifies that the rate within such range as for the time being fixed by the Central Government by notification in the official gadget - HELD THAT:- In section 11BB, to clarify the rate of interest in the range of 5% to 30%, the statute itself has empowered the Central Government to fix any rate of interest for the time being by way of a notification. This clarifies that once there is a notification of Central Government fixing 6% as the rate of interest same has to be followed as having power of statute. T....... + More
- 2019 (11) TMI 610
Reversal of CENVAT Credit - writing off the value of inputs - Rule 3(5B) of Cenvat Credit Rules - HELD THAT:- Rule 3(5B) of CCR observe that the said Rule has come into existence vide Notification No. 16/2009 dated 07.07.2009 which stands substituted w.e.f. 01.03.2011 by virtue of N/N. 3/11. This perusal makes it clear that the inputs/capital goods as were produced in or before the year 2002 when the production activity of the appellant came to an end there was no provision to writing off the value of such inputs and capital goods or the reversal of cenvat credit could not be taken on such goods prior 01.03.2011. Apparently and admittedly the written off qua stores and spares was made in the year 2012 with the reversal of cenvat credit, thereof, i.e. prior the aforesaid Notification of March, 2013. Hence, it becomes clear that Department ....... + More
- 2019 (11) TMI 556
Captive Consumption - the appellant was using cement within their factory without payment of duty - Denial of exemption under Notification No. 67/95-CE dated 16th March 1995 - Demand for the reasons given therein the appellant’s claim that exemption in terms of Notification No. 67/95-CE was incorrect and therefore sought to recover the same along with applicable interest and penalty - HELD THAT:- The ‘capital goods’ or ‘goods’ as the case may be, are granted exemption from duty if the same are manufactured in a factory and used “within the factory of production in or in relation to manufacture of final products”. It is therefore clear that it is not necessary that cement in the case on hand is required to be necessarily used in the manufacture, it is also sufficient if cement is used ‘in relation’ to the manufacture of final product. The denial is incorrect and cannot be sustained - Appeal allowed - decided in favor of appellant.
- 2019 (11) TMI 555
CENVAT Credit - credit denied on the ground that the appellants have received only invoices and not the goods as per the statement of one Sh. Amit Gupta who was investigated by DGCEI - HELD THAT:- Revenue has failed to prove that if the said inputs have not been received in their factory, then from where the inputs have been replaced by the appellants against those invoices - also M/s Prime Metalloys Pvt Ltd have specifically mentioned that they have supplied the goods to the appellant. In the absence of any contrary evidence to the above facts, the Cenvat credit cannot be denied to the appellant - the investigation conducted by the DGCEI in this case is not proper and having various infirmities, the benefit of doubt goes to the favour of the appellants - Cenvat credit cannot be denied to the appellant. Penalty - HELD THAT:- As Cenvat cre....... + More
- 2019 (11) TMI 554
Method of Valuation - applicability of Rule 4 of the Central Excise Valuation Rules, 2004 or Section 4(1)(a) of the Central Excise Act, 1944? - Valuation - physician samples cleared by the appellant - sale of such samples on principal to principal basis to customers - clearance of physician samples manufactured on job work basis (loan licensee) to the principal manufacturer - appellants are determining the value of the medicaments sold to their customers by adopting the transaction value under Section 4(1)(a) of the Central Excise Act, 1944 when the goods were sold, but when it was manufactured on job work basis (loan licensee) valued the same by taking the cost of production + 10% as provided in Rule 8 of the Central Excise Valuation Rules, 2000. Revenue disputed the method of valuation and alleging that the physician samples cleared by ....... + More
- 2019 (11) TMI 536
CENVAT Credit - input services - Guest House - period October 2009 to March 2015 - denial on the ground that the guest house maintained by the appellant which has been taken on rent is not an input service - HELD THAT:- As contended by the appellant, the guest house has been used by the foreign technicians who used to visit their factory for technical assistance which ultimately resulted in production of their final goods, in that circumstances, the stay of technicians is used for manufacturing activity and the same is eligible as input service in terms of Rule 2(l) of CCR, 2004. Credit allowed - appeal allowed - decided in favor of appellant.
- 2019 (11) TMI 490
CENVAT Credit - duty paying documents - Registration of units - whether the appellant is entitled to the Cenvat credit in the Visakhapatnam unit in respect of the services rendered in their Visakhapatnam unit on which the service tax was paid by their Hyderabad unit and the challan mentioned the name and details of Hyderabad unit only? - Goods Transport Agency (GTA) services - reverse charge mechanism. HELD THAT:- During the relevant period, although the service recipient was their Visakhapatnam unit, the service tax was paid by their unit in Hyderabad and therefore, the challan also indicates the details of registration of Hyderabad unit. In this factual matrix, despite Hyderabad unit of appellant, instead of Visakhapatnam unit, paying service tax on the GTA services and the challan also giving details of Hyderabad unit, there is no disp....... + More
- 2019 (11) TMI 489
CENVAT credit - electricity generated and sold by the appellant sugar manufacturing company from its waste product called bagasse - addition of Explanation 1 to Rule 6(1) of CENVAT Credit Rules, 2004 w.e.f. 01.03.2015 - HELD THAT:- Admittedly electricity, though not found in tangible form, is classifiable under Tariff item no. 27160000 of Central Excise Tariff Act, 1985. But it is a non-excisable goods and the process of generation of electricity though a manufacturing process is dutiable if it is generated from mineral oils, bitumen substance, mineral waxes etc. and electricity generated from bagasse is not covered under Chapter 27 like electricity generated through solar power, hydro power, wind power etc. As has been held by Hon'ble Allahabad High Court in GULARIA CHINI MILLS AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2013 (7) TM....... + More
- 2019 (11) TMI 488
Refund of excess duty paid - rejection of refund on the ground of time limitation - original refund application was filed within time but it was returned for deficiencies and is resubmitted by the assessee after rectifying the defects - whether the original date should be considered or the date of the final submission for purpose of reckoning limitation under Section 11B? - HELD THAT:- This issue is no longer res integra and it has been decided by the Hon’ble High Court of Delhi in the case of COMMISSIONER OF C. EX., DELHI-I VERSUS ARYA EXPORTS AND INDUSTRIES [2005 (4) TMI 90 - HIGH COURT OF DELHI] as well as by the Hon’ble High Court of Gujarat in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS AIA ENGINEERING LTD. [2010 (9) TMI 555 - GUJARAT HIGH COURT] that the date of the original application should be considered. Thus, ....... + More