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Central Excise - Case Laws
Showing 121 to 140 of 546 Records
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2018 (2) TMI 1316 - GUJARAT HIGH COURT
Interpretation of statute - suo moto re-credit - Whether in the facts and circumstances of the case and law, the Hon'ble Tribunal has committed substantial error of law in allowing the Appeal of the Respondent and in interpreting provision of Sec. 11 B of Central Excise Act 1944, by allowing to the Respondent to avail suomotu recredit of cenvat, by acknowledging it as only adjustment of books of entry?
Held that: - this was not the case of the assessee suomotu availing recredit but a case of mere correction of incorrectly made entries on the very same day - issue is completely factual - appeal dismissed.
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2018 (2) TMI 1315 - GUJARAT HIGH COURT
Whether the penalty under Rule 15(2) Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 which is mandatory in nature can be waived by the CESTAT?
Held that: - the Tribunal noted that there were different views of the High Court on the issue of taxability itself - The judgement of the Tribunal seems to be suggesting that the issue itself was not free from doubt. In any case, there is no establishment of allegations of willful fraud on the part of the assessee.
Appeal dismissed.
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2018 (2) TMI 1314 - CESTAT NEW DELHI
Time limitation - CENVAT credit - construction services - suppression or mis-statement with a malafide intention on the part of the assessee - Held that: - Revenue is not disputing the fact of reflection of the credit in the ER-1 returns filed by the assessee. Admittedly, when the returns are reflecting the credit, this leads to inevitable fact that the credit stands reflected in the Cenvat credit account i.e. RG-23A Part II also.
The ld. AR fairly agreed that there is no column in ER-1 return to give the break up of various input services, thus casting no obligation on the part of the assessee to give the details of the input service in which such credit stands availed. Such details would be available in RG 23A Part I & Part II accounts being maintained by the appellant and the Revenue is within it powers and jurisdiction to seek such information as regards the input service, if in doubt. The appellant cannot be held guilty of any mala fide suppression or mis-statement.
Demand barred by limitation - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1313 - CESTAT CHANDIGARH
CENVAT credit - final products cleared for home consumption as well as for export without payment of duty - denial on the ground they had availed Cenvat credit on the capital goods which were exclusively used in the manufacture of exempted goods during the said period - Held that: - it is fact on record that the appellant had also cleared the goods on payment of duty under N/N. 29/2004-CE with effect from 18.06.2005. Hence, there is no fault in the finding of the ld. Commissioner (Appeals) that capital goods were used for manufacture of exempted and duty paid goods.
In the identical circumstances, in the appellant s own case [2011 (1) TMI 491 - PUNJAB & HARYANA HIGH COURT ], the Hon'ble Punjab & Haryana High Court has held that it cannot be said that the capital goods, in question, had been used exclusively for the manufacture of fully exempted finished products. Under sub-rule (4) of Rule 6 of Cenvat Credit Rules, 2004, capital goods cenvat credit is inadmissible only in respect of those capital goods which are exclusively used in the manufacture of exempted goods.
Demand set aside - appeal dismissed - decided against Revenue.
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2018 (2) TMI 1312 - CESTAT AHMEDABAD
CENVAT credit - by-product - inputs used in the manufacture of dutiable goods and exempted goods - non-maintenance of separate records - case od appellant is that by-products which emerge during the course of manufacture of finished goods cannot be subjected to Rule 6(3) of CCR 2004 - Held that: - As far as applicability of Rule 6(3) to the by-product, the issue is covered by the judgment of Hon’ble Gujarat High Court in the case of Sterling Gelatine s case [2010 (9) TMI 857 - GUJARAT HIGH COURT], where it was held that when no input is specifically used for the purpose of manufacturing Di-Calcium Phosphate, there would be no question of maintaining separate accounts for receipt, consumption and inventory of input - demand set aside - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1311 - CESTAT AHMEDABAD
Clandestine removal - finished goods - entire case of the Revenue is on the findings of the lower authorities that two duplicating note books were found which contained information regarding clandestine removal of the goods - Held that: - the two purchasers at the end of the statements itself have stated that they have not received any goods without duty paid documents from the appellant. It seems that the First Appellate Authority has not considered these important/vital evidence that the purchasers statements cannot be relied upon, on the face two purchasers retracted the statements while, two of them denying receipts of goods without documents.
The appellant had produced a Chartered Engineer Certificate indicating the production capacity and the details which indicated that the appellant s factory could not have produced the kind of goods allegedly removed clandestinely, during the period in question - the charge of clandestine removal is very serious in nature, and the claim of the appellant s counsel nothing corroborative is brought on record as to unusual consumption of utilities and unaccounted purchase of raw materials, is correct.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1310 - CESTAT AHMEDABAD
Clandestine removal - demand based upon the two chit books recovered during the visit of the officers to main appellant s factory premises - Held that: - the Adjudicating Authority has totally misconstrued the provisions of the law and the law as settled by the various decisions of the Tribunal as to confirmation of the demands on clandestine removal. It is now settled law, clandestine removal is a very serious allegation and needs to be corroborated with solid evidence.
The confirmation of demand on clandestine removal on solely a single statement of authorised signatory is totally incorrect and the main appellant s were seeking cross examination of this gentlemen which were not offered to. The law is settled on this point as to if no cross examination is granted in respect of a person them the statement cannot be considered as of any evidentiary value.
Penalty on the director - Held that: - in entire proceedings the Adjudicating Authority has not pointed out, any role that could be attributable to the Shri Rajkishore Chaturvedi for visiting him with penalty of ₹ 10 lakhs under Rule 209A of the Central Excise Rules, 1944. As the entire demand raised against the main appellant is set aside, no penalty can be imposed on the director - penalty set aside.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1309 - CESTAT CHENNAI
Consulting Engineer Service - reverse charge mechanism - non-payment of service tax for the period May 2008 to February 2009 - Held that: - The Hon ble High Court of Karnataka in the case of Commissioner of Central Excise Vs. Adecco Flexione Workforce Solutions Ltd. [2011 (9) TMI 114 - KARNATAKA HIGH COURT] has held that issue of SCN when entire amount along with interest stands paid is incorrect and bad in law - penalty set aside.
CENVAT credit - it was alleged that CENVAT credit availed twice on the same Bill of Entry - Held that: - The credit having not reversed and also having taken again for the second time points out that there is some adverted mistake on the part of the appellant - penalty upheld - however, benefit of reduced penalty of 25% granted.
Non-payment of service tax under reverse charge mechanism for the period March 2009 to May 2009 - penalty - Held that: - taking into consideration that there was only delay in discharging the liability of service tax, we are of the view that the penalty on this issue requires to be set aside - penalty set aside.
Appeal allowed in part.
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2018 (2) TMI 1308 - CESTAT CHENNAI
Refund claim - duty paid on raw materials sent to job workers - time limitation - section 11B of the CEA 1944 - Held that: - The claim filed beyond the period of limitation cannot be overcome by making a refund claim appear to be an application for restoration of CENVAT credit - The credit having been reversed and the appellant having issued sales invoice retrospectively, amending their accounts so as to include the excise duty in the sales invoices, this contention of the appellant that the sale has not taken place does not find favor with us - appeal dismissed - decided against appellant.
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2018 (2) TMI 1307 - CESTAT AHMEDABAD
Transferring of entire CENVAT credit- closure of one unit - penalty u/r 15(1) of the CCR 2004 - denial of credit and imposition of penalty on the ground that they had taken the said credit without permission of the Central Excise officer in terms of Rule 10 of the CENVAT Credit Rules - Held that: - rule 10 has been examined by the Tribunal in the case of Hewlett Packard [2006 (11) TMI 76 - CESTAT,BANGALORE], wherein it has been clearly held that no prior permission is needed. In the said case, it has been held that as long as the importer has been accounted to the satisfaction of the department, the credit is transferable - credit cannot be denied.
Credit in unit-III - Revenue view is that the credit in unit-III is doubtful in view of the fact that the appellant had opted for Notification No. 30/2004-CE and hence were required to reverse the credit in their account - Held that: - The said matter would be a different issue, which needs to be dealt with separately. This is not relevant in the present proceeding as the present proceeding relates to credit that was available in unit-III at the material time and if transfer of that credit was admissible or not.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1306 - CESTAT HYDERABAD
Demand of differential duty - penalty u/s 11AC - Cement - N/N. 4/2007-CE dated 01.03.2007 (as amended) - denial on the ground that clearances are to Andhra Pradesh State Housing Corporation and other construction builders is not covered under the said Notification and since their RSP is printed, which is not required to be printed, will fall under Clause 1C of the said Notification instead of Clause-1A - identical issue decided in the case of COMMISSIONER OF C. EX., HYDERABAD-III Versus SAGAR CEMENTS LTD. [2010 (4) TMI 418 - CESTAT, BANGALORE], where it was held that the requirement of not printing of the retail sale price is not applicable to the respondents, as the goods are sold to APSHCL by indicating the price at which it was contracted on each bag. It is also on record that there was no case of the Revenue that the respondents were not required to declare the retail sale price on the supplied bags - appellant eligible to clear the cement under Clause-1A.
Penalty u/s 11AC - Held that: - as the Bench on merits itself allowed the appeals of Penna Cement Industries Ltd, nothing survives in the appeal filed by the Revenue.
Appeal allowed - decided in favor of appellant-assessee.
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2018 (2) TMI 1305 - CESTAT NEW DELHI
Valuation - furniture with ‘Nilkamal’ brand name - principal–job worker arrangement - Revenue held that the value of branded furniture by the appellant supplied to M/s.Nilkamal Ltd. should be in terms of Rule 10A of Central Excise Valuation Rules, 2000 - Held that: - On careful perusal of the MOU, we note that same cannot be considered as arrangement for job work - The fact M/s. Nilkamal has sold the said furniture with much higher price and hence Rule 10A of Central Excise Valuation Rules, 2000, apply to manufacture of the appellant is not tenable. The goods sold by M/s. Neelkamal is on the higher price as it includes expenses like storage, advertisement and sales after the goods were received from the appellant. Hence, the difference between the sale price of the appellant and sale price of Neelkamal by itself will not justify the inference of job work arrangement.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1304 - CESTAT NEW DELHI
SSI Exemption - use of brand name of others - usage of brand name of client in the manufacture of plastic containers - N/N. 8/03 CE - Held that: - Admitted fact is that brand name is for such packing material only.
It is clear that bar of use of brand name will not apply in case the packing material which bear the brand name of another person who uses the said packing material either himself or by on behalf of himself - In the present case, brand is of packing materials itself and not the content thereof. Accordingly, we find that exclusion made by the amendment is not relevant to the present case.
Following the normal consistent practice of imposing redemption fine of around 15% of value of confiscated goods, we find the redemption fine can be reduced to around ₹ 1,00,000/- - appeal allowed in part.
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2018 (2) TMI 1303 - CESTAT NEW DELHI
Applicability of Rule 6(3) (i) of Cenvat Credit Rules, 2004 - Sulphuric Acid, a by-product, emerged during the course of manufacture of dutiable Zinc and Lead - clearance of taxable as well as exempt goods - Held that: - identical issue decided in appellant own case Union of India & Others Versus M/s. Hindustan Zinc Ltd. [2014 (5) TMI 253 - SUPREME COURT], where it was held that the Sulphuric Acid, which has emerged as a technical necessity, which is a by-product, cannot attract the provisions of the said Rule, as the same are applicable only to the “final products”.
Generation of sulphur dioxide gas, during the course of manufacture of Zinc and Lead, is a technical necessity and no input service has been used exclusively or commonly in such process. This much is very clear from the verification report.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1302 - CESTAT AHMEDABAD
Rebate - whether the Appellants are entitled to take credit of the rebate amount rejected by the adjudicating authority? - Held that: - After rejection of part of the rebate claim of ₹ 3,29,849/-, the Appellant had not filed Appeal before the ld. Commissioner (Appeals), when in the order of the adjudicating authority, no direction for taking recredit of the rejected amount has been specified - there is no merit in the appeal - appeal dismissed.
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2018 (2) TMI 1301 - CESTAT CHENNAI
Benefit of N/N. 64/95 dt. 16.3.1995 - 'Semi-Trailer' cleared to Liquid Propulsion System Centre (LPSC), Department of Space, ISRO - Department took the view that the semi-trailer is not a system or sub-system by itself, that it has not been certified as meant for use in a launch vehicle project - Held that: - identical issue decided in the case of P.L. Haulwel Trailers Vs CCE Chennai [2002 (1) TMI 160 - CEGAT, CHENNAI], where it was held that Any apparatus or equipment or accessories and spare parts of scientific and technical instruments are also covered in the notification. So long as the apparatus and equipment required for using along with the scientific and technical instruments the benefit cannot be denied.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1300 - CESTAT CHENNAI
Penalties u/s 11AC and Rule 173Q - inclusion of installation charges in assessable value - brand name - Held that: - Considering the magnitude of the dispute and also that this is a second round of litigation, the penalty imposed u/s 11AC will be suffice to meet ends of justice in this case - penalty u/r 173Q is set aside - appeal allowed in part.
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2018 (2) TMI 1299 - CESTAT AHMEDABAD
Clandestine removal - excess stock of finished goods - non-accountal of finished goods - Held that: - Merely non-accountal of the finished goods in the RG-1 register pending chemical analysis or the analytical report is not up to the mark would not lead to an inference that the same were kept to be cleared clandestinely and confiscation of the excess stock attributing clearance without payment of duty - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1246 - CESTAT NEW DELHI
Refund of duty paid - refund claim was rejected by the authorities below on the ground that this Tribunal has considered the issue of imposition of penalty and observed that confirmation of the demand along with interest is to be appropriated in terms of Section 11A (2B) of the Act - Held that: - the amount paid during the course of investigation by the appellant along with interest has been appropriated by this Tribunal. In that circumstances, the refund claims are not maintainable. Therefore, the authorities below has rightly rejected the refund claims of the appellant - appeal dismissed - decided against appellant.
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2018 (2) TMI 1245 - CESTAT NEW DELHI
CENVAT credit - denial on the ground that M/s Sulabh Impex Incorporation has not supplied the goods to the appellant - Held that: - in this case, no investigation was conducted at the end of the appellant to verify the stocks. Moreover, Revenue failed to establish the fact that from where the raw material were purchased by the appellant if the goods in question has not been received by the appellant. Further, the appellant was due diligent while receiving the goods as there was no discrepancy in the invoice and the same has not been alleged by the Revenue.
During the course of investigation, the appellant themselves has made a statement that they have received the goods and same has been used in manufacture of final product. Thereafter, no further investigation was conducted by the Revenue to establish the fact the appellant has not received the goods. In that circumstances, benefit of doubt goes in favour of the appellant.
Appeal allowed - decided in favor of appellant.
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