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Central Excise - Case Laws
Showing 121 to 140 of 277 Records
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2016 (1) TMI 818 - CESTAT CHENNAI
Erroneous availment of CENVAT credit in respect of maintenance of green belt to reduce pollution - Held that:- When appellant is manufacturer of cement and control of pollution in factory area is an indispensable necessity. Therefore, CENVAT credit on that count is allowed.
Outdoor catering service - disallowance of CENVAT credit against the appellant - Held that:- There is no finding by the Commissioner (Appeals) in the appeal that service of caterer was not utilized for the factory with a view to comply to the provisions of Factories Act. In such an event, when it did not rule out the utility of service to factory workers, disallowance is uncalled for.
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2016 (1) TMI 817 - CESTAT MUMBAI
Cenvat Credit of Service tax - whether the appellant has availed the Cenvat Credit of Service tax paid on the amount received by them from their employees for availing the services of canteen and whether extended period can be invoked for demand of such ineligible Cenvat Credit? - Held that:- The issue on merits as to eligibility to avail Cenvat Credit on the Service tax paid of the amount collected from their employees, the issue is now settled by the judgment of the Hon’ble High Court of Bombay in the case of Ultratach Cement-2010 (2010 (10) TMI 13 - BOMBAY HIGH COURT). Accordingly, on merits appellant has no case.
As regards limitation during the relevant period appellant herein had every reason to believe that they are eligible to avail Cenvat Credit of service tax paid on the amount paid for canteen services, to that extent demand which have been raised and confirmed by the lower authorities by invoking extended period is liable to be set aside, if any demand is within limitation from the date of show cause notice, it is upheld along with interest and appellant is directed to pay the same to the revenue. - Decided in favour of assessee.
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2016 (1) TMI 816 - CESTAT NEW DELHI
Disallowance of Cenvat credit - penalty imposed equal to the said credit amount - Held that:- In the absence of any dispute about the receipt of inputs under the cover of the invoices issued by the supplier carrying duty payment details, credit availed by the recipients cannot be denied. - Decided in favour of assessee.
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2016 (1) TMI 766 - CESTAT NEW DELHI
Allegation of fraudulent export of goods to Nepal - demanding duty and denial of cenvat credit along with interest and imposing penalty on both the appellants - Held that:- As per the condition IV of the said notification no. 45/2001-CE(NT) dated 26.06.2001 the goods were required to be presented before Nepalese custom office and who has to endorse the certificate of the goods received in Nepal and is required directly sent to the officer of the Custom in charge and it is the duty of the custom in charge to send the duplicate copy of invoice to central excise officer to comply the said condition, appellant have no role to play. It is the departmental internal correspondence to ascertain the fact that export is complete or not. For the lapses of the department, appellant cannot be held faulted. Therefore, duty cannot be demanded from the appellant.
With these observations, as find that appellant has been able to prove his case of export of the goods to Nepal. Therefore, no duty can be demanded from the appellant and Cenvat Credit cannot be denied. As duty cannot be demanded from the appellant penalties on both the appellants is not imposable. With these terms, impugned order is set aside. Appeals are allowed with consequential relief if any.
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2016 (1) TMI 765 - CESTAT NEW DELHI
Valuation - stock transfer - Differential duty on clearances to their Faridabad unit - comparable price - Held that:- The appellants are selling the gases to different set of buyers while comparing the price for valuation purposes, as already stated, it is necessary to have comparable volume and proximity of time and comparable class of buyers. Revenue's stand that the highest of value is a comparable price is not supported by the provisions of law. We find that while the value adopted is to be based on comparable value there is no sanction to take highest of the independent sale price for such purpose.
Accordingly, we hold that the price of gases sold to independent buyers of similar class should be considered for valuation of gases cleared by the appellants on stock transfer basis. The appellants’ claim that during the relevant period their sale to M/s. Saraswati Air Products will satisfy the criteria for comparable price in view of volume and class of buyers. We find that this claim merits consideration.
We find in the present case the demands were issued based on scrutinizing of periodical monthly returns filed by the appellants. On advice by departmental officers the appellants paid the differential/additional duty on 5.10.99 well before the adjudication. Certificates under Rule 57E were also issued to them for availing credit. We find in these circumstances imposition of penalties equal to duty difference demanded is not justifiable and accordingly, we set aside the same.
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2016 (1) TMI 764 - CESTAT NEW DELHI
CENVAT Credit on GTA services - Disallowance of credit on service tax paid on GTA Services in respect of outward transportation services - Held that:- Undisputedly the transactions are FOR destination and the value of the goods include cost of transportation upto destination plus insurance. The Board has issued a Circular No. 97/6/2007-ST dated 23.8.2007, wherein it is clarified that the GTA service availed for outward transportation of the goods from the factory/depot to the customer's premises would be treated as 'input service' only when the place of removal of the goods is the customer's premises or in other words the sale transaction is on FOR destination basis. Thus as per the clarification, if assessable value of the goods on which duty is paid is the FOR destination price, the credit on the service tax paid on freight upto buyer's door step would be admissible.
The Hon'ble High Court in the case of CCE Vs. Parth Poly Wooven (P) Ltd, (2011 (4) TMI 975 - GUJARAT HIGH COURT ) has categorically held that the outward transport service used by the manufacturers for transportation of finished goods from the place of removal upto the premises of the purchaser is covered within the definition of 'input service' provided in Rule 2(1) of the Cenvat Credit Rules, 2004. - Decided in favour of assessee.
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2016 (1) TMI 763 - CESTAT NEW DELHI
Demand of differential duty on account of non-inclusion of AED (T&TA) in the cost of Grey Fabrics for excise purposes - inclusion of AED (T&TA) in the cost of Grey Fabric is sent for job work when the same is available as credit to the appellant - Held that:- It is clear that in the case under consideration of CCE, Pune vs. Dai Ichi Karkaria Ltd [1999 (8) TMI 920 - SUPREME COURT OF INDIA] the assessee can utilize the credit taken to pay excise duty on the finished product, as such, the Hon’ble Apex Court observed in such situation the duty which was already credited and which can be used for discharging duty on final product need not be included in the cost. In the present case we find the appellant though availed the credit as permissible by the law, cannot utilize the same as the finished product Grey Fabric is not liable to AED (T&TA). As such, the said duty paid on inputs will become cost to the appellant, which cannot be passed on by way of utilization of the said credit for discharging the duty on finished product. This much is clear from appellant’s own treatment of the said credit as expenditure in the balance sheet for the year 2003-2004. Their not showing the said duty as expenditure in the next year will not affect the fact the AED paid has to be observed as a cost in view of the fact that they are not able to utilize the same - Decided against assessee.
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2016 (1) TMI 762 - CESTAT NEW DELHI
Classification - manufacture - change in the scope of tariff entries - iron and steel structures like trusses, columns, staircase, windows and section etc. - These steel structures are commonly known as component parts of building/ shed. - Held that:- We find that there is a change in the scope of tariff entries in respect of the impugned goods pre and post 1.3.1988. The CETH 73.08 effective from 1.3.88 clearly covers structures and parts of structures like bridges, towers, roofs, doors and windows of iron and steel, plates, rods, angles, sheds, sections etc. prepared for use in structure of iron and steel. Thus, the clear and specific classification of the impugned items were available with effect from 1.3.1988. Prior to that date, the classification was sought to be made under 7308 90 : as ‘Misc’ ‘other articles of iron and steels’.
Similar issue came into consideration before this Tribunal in Elecon Engineering Co. Ltd. (2005 (5) TMI 168 - CESTAT, NEW DELHI ) relying on decision in the case of Aruna Industries [1986 (5) TMI 169 - CEGAT, NEW DELHI] and in Wainganga Sahkari S Karkhana Ltd. [2002 (4) TMI 55 - SUPREME COURT OF INDIA], later confirmed by the Hon’ble Supreme Court in [2002 (4) TMI 55 - SUPREME COURT OF INDIA] and Hon’ble Bombay High Court decision in Sunflag Iron and Steel Co. Ltd. [2001 (2) TMI 147 - HIGH COURT OF JUDICATURE AT BOMBAY], held that these goods are not excisable. - Decided in favour of assessee.
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2016 (1) TMI 734 - CESTAT NEW DELHI
Entitlement to exemption under Notification No. 6/2000-CE, 3/2001-CE and 6/2002 -CE denied - Revenue contended that that both the units of the respondents are located on the same plot. - Held that:- The scope of exemption hitherto available to paper mills after clubbing the clearance from more than one factory of a manufacturer as now being extended to allow the exemption to each factory separately. The original authority also relied on the Central Excise registration given to these units separately for different products.
After such detailed examination, the lower authorities concluded that the exemption of Central Excise duty on specific quantity of paper and paper board manufactured by unit 1 and 2 of the respondents during the impugned period was admissible for them separately.
After careful consideration of the finding of the original authority we find no reason to interfere with the same as all the points raised in appeal have been discussed and decided by the original authority. We fully agree with the finding of the adjudicating authority for the reasons stated above. Accordingly, we dismiss the appeals filed by the Revenue.
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2016 (1) TMI 733 - CESTAT NEW DELHI
Refund claim - whether the respondent has passed the bar of unjust enrichment as held by Commissioner (Appeals) ? - Held that:- The appellants paid duty under protest and burden of duty passed on to the buyers at the time of issuance of invoices. The buyers also took cenvat credit thereof and have not reversed the credit while issuing debit notes to the respondent.As these facts are not in dispute by mere issuing debit notes, the respondent is not able to discharge the burden of unjust enrichment.
In this case, it is an admitted fact that the buyer has not debited cenvat credit along with the amount of duty in dispute as claimed by the respondent as a refund. In the circumstances, relying on the decision in the case of Oriental Textile Processing Co. (P) Ltd. (2012 (5) TMI 247 - CESTAT, NEW DELHI ), we hold that the ld. Commissioner (Appeals) is in error in holding that the respondent has passed unjust enrichment. Therefore, the impugned order is set aside - Decided in favour of revenue
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2016 (1) TMI 732 - CESTAT MUMBAI
Determination of value - determination of cost of production of goods manufactured by another unit - cars manufactured by assesse for their own use - extended period of limitation invoked - whether details about the cost of production etc. were not made available to the department? - Held that:- As in this case the cars cleared have not been utilized for further manufacture of goods but were used by the officials of the company in connection with the business. In our view, Rule 8 is not directly applicable and it would be more appropriate to determine the value under Rule 11 read with Rule 4 and the assessee has paid the duty correctly. We also find that the Larger Bench of this Tribunal in the case of Ispat Industries Ltd. (2007 (2) TMI 5 - CESTAT, MUMBAI ) supports the contention of the assessee. We also find force in the contention of the assessee that extended period is not invokable. We do not find any justifiable ground in the show cause notice so as to invoke the extended period. Even the learned Commissioner (Appeals) has dropped the penalty keeping in view the issue involved is interpretation of law. In our view, in the facts and circumstances of the case, invoking the extended period of limitation is not justified. - Decided in favour of assessee.
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2016 (1) TMI 731 - CESTAT NEW DELHI
Undervaluation of assessable value - invoking extended period of limitation proposing recovery of duty on the ground that such bailing charges are includable in the assessable value - Held that:- In this case the show cause notice has been issued by invoking extended period of limitation and some period in the show cause notice falls during the extended period of limitation. As it is an issue of interpretation of valuation rules and appellant has shown in the invoices itself that they are receiving bailing charges which are only for the additional/special packing sought by the buyer. Therefore, mala fides against the appellant stands unproved. In these circumstances, we hold that the extended period of limitation is not invocable. Consequently, penalties are also not imposable.
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2016 (1) TMI 730 - CESTAT NEW DELHI
Penalty under Section 11AC - procedural lapse - written off of inputs as obsolete in their books of account and did not reverse Cenvat credit pertaining to them - Held that:- In this case although at the time of writing off as obsolete of inputs in question, the appellant was required to reverse the Cenvat Credit as per Rule 3(5)(b) of the Cenvat Credit Rules, 2004. But later on, these inputs have been used by the appellant in manufacturing of final product and these inputs were lying in their factory itself. In these circumstances, hold it is a situation of revenue neutrality and appellant has not gained anything by writing off these inputs as obsolete. In these circumstances, hold that it was only the procedural lapse on the part of the appellant. Therefore, mandatory penalty under Section 11AC is not imposable. But for procedural lapse by the appellant, penalty under Rule 27 of the Cenvat Credit Rules, 2002 is imposable. Therefore, impose a penalty under Rule 27 of the Cenvat Credit Rules, 2002 to the extent of ₹ 5,000/-.
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2016 (1) TMI 699 - CESTAT MUMBAI
Valuation of the goods for which job work was undertaken - determining the cost of an excisable product - whether the Central Excise duty paid on inputs needs to be included in the costing of the final product for arriving at the assessable value or otherwise? - Held that:- The issue is now settled by the Supreme Court in the case of Daiichi Karkaria (1999 (8) TMI 920 - SUPREME COURT OF INDIA) wherein held that the Central Excise duty paid on the inputs need not be included for arriving at the costing of final product as the availment of Cenvat credit neutralizes the impact of the duty on costing of the finished products. Following the judgement, we hold that the basic allegation of non-inclusion of Central Excise duty paid on inputs needs to be included for costing of finished goods has no locus standi accordingly, on merits we hold that appeal needs to be allowed.
The differential duty payable shall be paid by the appellants along with interest and the differential duty will be calculated on the basis of the law settled by the Apex Court as cited hereinabove.
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2016 (1) TMI 698 - CESTAT NEW DELHI
Valuation - Non-inclusion of freight collected separately, not shown in the invoice, to be added in the assessable value - addition to assessable value - Held that:- The demand of short levy was confirmed on the first issue only on the ground that the freight charges were not mentioned in the invoices and as such the assessee is liable to pay tax on this amount. We find no legal basis for such assertion. The fact that the place of removal is ex-factory as asserted by the appellant has not been disproved by adducing any evidence by the Revenue. That the appellants had arrangement for delivery of goods to the buyer after their clearance from the factory has nothing to do with the assessable value of the goods unless it is established that place of removal for valuation purpose is the delivery point at the buyer's premises. No such evidence is forthcoming in this case. - Decided in favour of assessee
Certain amount collected, in excess of actual freight, from the buyers to be added in the assessable value - Held that:- The appellants collected certain amount towards freight from their buyers, but actually spent less amount towards such freight. The Revenue added this excess amount in the assessable value. We find that when the goods are delivered ex-factory and the place of removal is factory gate, the freight element has no bearing on the valuation of the product. The freight amount not being shown in the invoice or some additional income has come to the appellant from freight charges cannot be the reason to add extra amounts in the invoice meant for ex-factory delivery of goods. There should be clear evidence that the invoice price for the goods for delivery at the factory gate is not reflecting the correct value and certain extra consideration is accruing to the appellant. No such evidence has been discussed in the impugned orders. Thus in the absence of evidence such addition to the value is not legal tenable. - Decided in favour of assessee
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2016 (1) TMI 697 - CESTAT NEW DELHI
Valuation of goods - Inclusion of cylinder rental charges, testing charges in assessable value - transaction value - Held that:- The issue was decided in Goyal M.G. Gases Pvt. Ltd. vs. CCE, Ghaziabad [2014 (8) TMI 657 - CESTAT NEW DELHI] wherein held in the cases where the gases were supplied in the cylinders brought by the customers, it is not disputed that the gases, in question, were marketable as such in as much as a substantial quantity of the gases was being supplied in tankers as well as through pipe line and also in the cylinders brought by the customers and as such, the packing of the gases into cylinders is not necessary for making the gas marketable. In view of this factual matrix, the ratio of the Tribunal's decision in the case of CCE vs. Grasim Industries Ltd.[2003 (12) TMI 101 - CESTAT, NEW DELHI ] would be applicable to this case and these charges would not be includible in the assessable value - Decided in favour of assessee.
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2016 (1) TMI 696 - CESTAT NEW DELHI
Deduction of discounts from all the clearances - determination of assessable value under Section 4 of the Central Excise Act, 1944 - appellant is deducting cash discounts from the transaction value on the clearances made from their factory to all the customers irrespective of the fact that the customers are not paying the amount in time and the cash discount has not been passed - Held that:- As relying on Purolator India case [2015 (8) TMI 1014 - SUPREME COURT ] it is held that the appellants are entitled for claiming deduction of cash discount from the transaction value on the clearances made from the factory to all the customers. - Decided in favour of assessee
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2016 (1) TMI 695 - CESTAT MUMBAI
Reversal of CENVAT credit - calculation of interest - amount of CENVAT credit attributable to inputs used in the exempted goods - Held that:- The appellant has already reversed ₹ 1,90,160.91 which is attributable to the inputs used for manufacture of goods cleared under exemption. Provisions of Rule 6(3) are applicable in this case and the assessee having deposited an amount of ₹ 2,43,600/- on the direction of the Tribunal, they can be extended the benefit provisions of Rule 6(3), regarding the procedure rule followed or opt to reverse the CENVAT Credit attributable to CENVAT Credit. This Tribunal in the case of Mercedes Benz India Ltd. [2015 (8) TMI 24 - CESTAT MUMBAI] has held that these are procedures and non-compliance can be at the most procedural lapse.
Thus the proposition is accepted that the amount to be reversed is an amount of CENVAT Credit attributable to the inputs consumed in the manufacture of finished goods, accordingly allow the appeal filed by the appellant to that extent and hold that the lower authority shall work out the interest payable on amount of ₹ 1,90,160.91 and adjust the amount of CENVAT Credit to the already paid of ₹ 2,43,600/- and interest thereof, from the deposit already made by the appellant on the direction of the Tribunal and if any interest is recoverable the same be recovered from the appellant. As regards the penalty, it is held that in the facts and circumstances of the case the same is set aside.
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2016 (1) TMI 694 - CESTAT NEW DELHI
Demand of interest - appellants cleared the goods without payment of duty - retrospectivity of liability - Held that:- The activity of producing refined edible oil was held to be not a process of manufacture by the Hon'ble Supreme Court in the case of M/s. Shyam Oil Cake Ltd (2004 (11) TMI 109 - SUPREME COURT OF INDIA ). Thereafter a new Chapter Note was inserted in Chapter 15 of CETA, 1985 vide Financial Bill, 2005 inserted on 28.02.2005 making the duty payable w.e.f. 1.3.2003. While brining forth the amendment, it provided for regularizing the duty already paid. The appellants discharged their duty liability on 13.05.2005.
The argument on behalf of the Revenue that as the liability to pay duty is made retrospective, the respondents are liable to pay interest from 1.3.2003 onwards does not appear to be attractive. The liability to pay interest arises only when the amount becomes due. The amount falls due only after the insertion of the amendment. The respondents discharged their liability within the time limit. Though the product is made dutiable w.e.f. 1.3.2003, there was no liability to pay duty on that date, as the amendment occurred only on 28.02.2005. In our considered opinion, in the present case, there is no liability to pay interest. Also see Pushti Refineries (P) Ltd. Vs. CCE & ST, Bangalore [2014 (10) TMI 273 - CESTAT BANGALORE ] - Decided in favour of assessee.
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2016 (1) TMI 691 - CESTAT MUMBAI
Penalty u/s 11AC - suppression or mis-declaration as alleged by revenue - whether there was intention to evade duty? - Held that:- As find that the show-cause notice does not highlight any grounds indicating suppression or mis-declaration. The statement of the Chief Executive Officer of the company also does not indicate any reasons for invoking suppression/mis-declaration. The Chief Executive Officer has stated that it was an error on their part. On the same being pointed out they have paid duty and interest. There was no evidence of any suppression or mis-declaration brought out in the proceedings. In the instant case, the appellant could not have gained monetarily as it is not in dispute that credit was available to the sister unit in respect of the duty paid by the appellant.
There is no intention to evade duty apparent in the facts and circumstances of this case. Thus, no penalty can be imposed invoking Section 11AC of the Central Excise Act - Decided in favour of assessee
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