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Central Excise - Case Laws
Showing 121 to 140 of 278 Records
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2016 (9) TMI 835 - CESTAT MUMBAI
Imposition of penalty - entire duty liability with interest was discharged before issuance of show cause notice - Held that:- appellant has paid the differential duty and the interest thereof on 22.7.2002 on their own ascertainment which is not disputed as the adjudicating authority has appropriated the very same amount with interest. In our view, the provisions of Section 11(2B) of the Central Excise Act, 1944 will apply in full force and the lower authority should not have issued any show cause notice to the appellant. Therefore, we, while upholding the duty liability and interest thereof, set aside the penalty imposed by the lower authorities. - Appeal disposed of
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2016 (9) TMI 787 - ALLAHABAD HIGH COURT
Entitlement for interest - refund became due to petitioner after the matter was decided by Tribunal on 14.01.2000 - application submitted by petitioner on 08.03.2000 but for one or other reason, incorrect and illegal orders were passed by Revenue authority and could not defeat in even up to this Court - amount refunded only in 20.01.2006 - Held that:- respondents have retained huge money of petitioner without any authority of law and for their own fault are penalising the petitioner by denying due interest on the amount refundable to petitioner. Application for refund was filed by petitioner on 08.03.2000. Under Section 11 BB it is provided that if the authority is satisfied that an amount is to be refunded to Assessee but the same has not been refunded within three months from the date of filing of application, Assessee would be entitled for interest. Order passed by Revenue authority under Section 11B(2) for refund is not relevant for the purpose of attracting interest under Section 11BB but what is said that once refund is found admissible, Assessee if has not been refunded the amount within three months from the date of receipt of application under sub Section (1), he shall be paid interest. Meaning that there is no time limit prescribed for taking a decision about refund but that law makes it very clear that amount if not refunded within three months from the date of receipt of application, interest shall be payable. Even if an order has been passed much later on, for the purpose of interest it will relate back and Assessee would be entitled for interest after three months from the date he has filed application under Section 11B. - Decided partly in favour of petitioner
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2016 (9) TMI 786 - CALCUTTA HIGH COURT
Condonation of delay - in presentation of Memorandum of Review - 267 days - maintainability of review - Held that:- Law is set at rest that review is entertainable under Order 47 Rule 1 and clauses mentioned thereunder. From Bar effort was to convince that there was mistake on the part of the Counsel due to not pointing out the amended Section 35-F. But we hold that there is hardly any scope to equate the alleged mistake of Counsel in not pointing out any law with the “mistake” or “error” as meant within the provision under Order 47 Rule 1 of the Code. Moreover, the Court rightly applied the law as it was prevalent when the appeal was filed and considered the same. Therefore, the subsequent amendment would not be applicable as the order impugned was based on consent of the petitioner that their clients were ready and willing to deposit 50% of the duty i.e. to the tune of ₹ 35 lakhs within a period of eight weeks from date.
Moreover, on concession though opportunity to deposit ₹ 35 lakhs only was obtained on September 4, 2015, instead of its deposit, rather causing loss of revenue, has been utilising the said amount as their own under the garb of this application. Therefore, we fail to look eye to eye with the submission of appellant to accept his contention that there was any mistake or error apparent on the face of record, to entertain the review application, since the provision of amended Section 35-F was not placed. Rather since the penaltimate portion of the order under review had given opportunity of preferring appeal in lieu deposit of a portion of the sum of penalty to the tune of ₹ 35 lakhs on the basis of concession, the review application has got no merit. The impugned judgment therefore is held as beyond the scope of review.
Though the period of limitation has been explained by the applicant in their own manner but had there been meritorious grounds to entertain the review, in that event the Court could have thought otherwise for consideration of said application proposing condonation of such inordinate delay. In view of taking note of having no merit in the review application and since the judgment under review is found as beyond the scope of review for the reasons recorded above, the application for condonation of delay stands rejected. As a consequence thereof, the application for review also stands dismissed. - Decided against the appellant
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2016 (9) TMI 785 - MADRAS HIGH COURT
Validity of order of tribunal in remanding back the case to Superintendent - According to the appellant (revenue), the Tribunal, while remanding the matter, failed to consider the fact that the Superintendent was not the proper authority to finalise provisional assessment, under Rule 9(B) of the erstwhile Central Excise Rules, 1944 and that the Tribunal has not addressed the question, as to whether, an appeal against the Superintendent's letter is maintainable or not, in the absence of any challenge to the Assistant Commissioner's order.
Held that:- Legislature in the statutes has used the expression, 'personal hearing', 'opportunity of being heard', or 'consider the representation' etc. Right if any under an Act to be decided, by the competent authority, may or may not, require an opportunity of being heard. It depends upon the nature of the right. Infringement and consequence thereof, may require the court to interpret a provision and to arrive at a conclusion as to whether an opportunity of being heard or personal hearing, should be provided and read into a provision. Reading of Rule 6(b)(i) of the Central Excise (Valuation) Rules, 1975, in our considered view does not mandate the Jurisdictional Superintendent, Central Excise to provide an opportunity of hearing, for computation of duty to be paid by an assessee. In the light of the discussion and various decisions, we are of the considered view that the directions of the Tribunal, to the Jurisdictional Range officer to provide an opportunity of hearing, is not in accordance with the scheme of the Act and the rules framed thereunder, and hence the directions are liable to be set aside and accordingly set aside.
Whether the directions issued by the Tribunal to the Jurisdictional Superintendent to consider the submission of the assessee, in the light of the decision in Dai Ichi Karkaria Ltd. vs. Collector of Central Excise, Pune, reported in [1996 (1) TMI 179 - CEGAT, NEW DELHI] has to be followed or not - Held that:- in the case on hand, provisional assessment has been directed to be finalised as per the order-in-original dated 22.05.1998 passed by the Assistant Commissioner of Central Excise, Central Excise Division, Cuddalore. Dai Ichi Karkaria's case has been decided on 11.08.1999. Perusal of the order-in-original dated 22.05.1998 does not indicate, any reference to the above said judgment. As observed earlier, there was no challenge to the order-in-original and therefore, when the appeal was filed against the letter of the Superintendent of Central Excise, Range 1, Cuddalore directing the respondent/assessee to pay the differential duty of ₹ 1,14,29,086/-, the appellate authority has rejected the same, stating that the assessment had attained finality. The Appellate authority has passed the order on 12.06.2013, by which time, the Hon'ble court in Collector of Central Excise, Pune vs. Dai Ichi Karkaria Ltd reported in [1999 (8) TMI 920 - SUPREME COURT OF INDIA] has approved the decision of the Tribunal.
Therefore, the range jurisdictional officer is bound to take note of the decision of the Hon'ble Apex Court and compute the value of excisable goods under assessment. We make it clear that while doing so, the jurisdictional officer is under no obligation in law to provide an opportunity of hearing to the assessee. He is required to only compute the value and the differential duty, as per the rule and decision of the Hon'ble Apex Court.
Whether the appeal filed against the Superintendent's letter O.C.No.1251/98 dated 20.11.1998 issued in pursuance of and in execution of the Assistant Commissioner's Order-in-Original No.30/1998 dated 22.5.1998 is maintainable in view of the Hon'ble Supreme Court judgments in the case of Flock India Pvt. Ltd. reported in [2000 (8) TMI 88 - SUPREME COURT OF INDIA] and Priya Blue Industries Ltd., reported in [2004 (9) TMI 105 - SUPREME COURT OF INDIA] - Held that:- it is the decision of the Range Jurisdictional Superintendent, in arriving at the value of the excisable goods, under assessment and differential duty, if any, paid by the assessee, which is put to challenge, by way of an appeal. Adjudicating authority has directed the Superintendent to report compliance. But even before the Adjudicating authority could pass a final order, the assessee has filed the appeal, against the letter of the Superintendent. Valuation has to be done, only in accordance with Rule 6(2) of the Central Excise Valuation Rules, 2004 and the judgment of the Hon'ble Apex Court Dai Ichi Karkaria's case (supra).
Whether it is in the form of a letter or an order of the competent authority, which is put to challenge on the facts and circumstances of the case, what is required to be considered is whether, it affects the interests of the assessee. It cannot be said that the assessee would not be prejudiced, if valuation is not done as per the decision of the Hon'ble Apex Court. Admittedly, the judgment of the Hon'ble Supreme Court, was not placed before the authorities. Adjudicating authority has directed the Superintendent to finalise the RTI2 assessment and report compliance. Perusal of the letter dated 20.11.1998, also shows that after computation, the Superintendent has marked a copy of the same to the adjudicating authority. In ordinary circumstances, this court would hold that an appeal against the letter of the Superintendent is not maintainable, in the light of Flock India Pvt Ltd.'s case (supra) But inasmuch the assessment has been directed to be finalised as per the directions of the adjudicating authority, we are not inclined to accept the contentions of the appellant, on the third question of law. We make it clear that this judgment shall not be treated as a precedent. - Appeal disposed of
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2016 (9) TMI 784 - PUNJAB AND HARYANA HIGH COURT
Invocation of extended period of limitation - Valuation - inclusion of concession of sales tax retained by the assessee - the judgment of Hon'ble the Supreme Court in case of Maruti Suzuki India Ltd. vs. CCE Delhi,[2014 (9) TMI 229 - SUPREME COURT] is referred to - Held that: - CBEC Circular dated 30.06.2000 provides that any amount of concession on sales tax retained by the respondent is not required to be added in the assessable value. The decision in the case of Life Long India Pvt. Ltd. vs. CCE Delhi, [2012 (3) TMI 349 - CESTAT NEW DELHI] is relied upon.
Assessee cannot be said to be at fault. No substantial question of law arises - extended period of limitation was not available - appeal dismissed - decided against appellant.
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2016 (9) TMI 783 - CESTAT MUMBAI
Invokation of extended period of limitation - sustained by the Commissioner - appellant had admitted before the Commissioner that the items were not at all its inputs but on record the same were declared as inputs - mala fide intention when took the credit - products in question and impugned items were both exported under Bond - Held that:- the order of the Tribunal dated 4.10.2002 clearly records that the claim of the appellant that they took the stand that they did in the reply to the notice, as a result of coercion of the departmental authorities is patently absurd. The said order also records that it is impossible to believe that the appellant's reply, was drafted by an advocate and dictated by any officer of the department. It is found that the defence of the appellant is largely based on the fact that there was no revenue loss as the goods were exported and the fact that even if the credit was taken on spares, it was possible to export the same and avail refund of the duty paid in terms of Rule 57F of the Modvat Credit Rules.
It can be seen that in the scheme of the Modvat, there is an intention to neutralize the tax suffered on the inputs cleared as such for export. Thus, with respect to goods exported by the appellant, it can be stated that the intention of the Government was to allow the credit of such inputs. Moreover the export sealing of these goods was done by Revenue and therefore they cannot say that they were not aware of it. Thus, suppression cannot be alleged in these circumstances. Therefore, the extended period cannot be invoked in these circumstances. - Decided in favour of appellant
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2016 (9) TMI 782 - CESTAT MUMBAI
Valuation - CNG - inclusion of services charges paid to private parties (PP) in the transaction valuation - whether price charged for sale of CNG to OMCs can be considered as transaction value for the purpose of payment of duty under Section 4(1)(a) of CEA - manufacture of Compressed Natural Gas from Natural Gas and distribution thereof and have integrated infrastructure for the same - all parameters like ownership of equipment, manner of production, product, RSP, etc. remaining the same - Held that:- the Appellants are paying VAT on its sales price to OMCs and OMCs are also paying VAT on their sales price to their customers. This clearly evidences that the AR's arguments that sale is not taking place between Appellants and OMCs and also it is a paper transaction is incorrect and not supported by any evidence on record. Hence, the transaction between them is sale/purchase transaction and VAT/sales tax has been paid at both ends the same cannot be considered as service contracts.
The Appellants’ contention that OMCs, being bulk buyers, have been given higher discount also needs to be accepted in the absence of any allegation/ substantiation of mutuality of interest between Appellants and OMCs, as both are independent entities. We also find that there is a distinct difference in the transactions of the Appellants with PPs, wherein MGL supply CNG through the outlets owned and operated by PPs and CNG is directly supplied by PPs to the ultimate consumers/vehicles users from their outlets for and on behalf of MGL, under the invoices/bills/cash memos of MGL and the price charged in those bills/invoices/cash memos are the retail sales price or maximum recommended price determined by MGL, from time to time.
In a true sense, the customers/ vehicle users at the outlets of PPs are buying CNG from MGL, through the PPs. The privity of contract is between MGL and those buyers and those sales are directly recorded in the Books of Account of MGL and not in the Books of PPs, as there is no sale and purchase of CNG by PPs and PPs act only as an agent of MGL on commission basis. The entire sales proceeds are remitted by PPs to MGL on daily basis. The contracts between MGL and PPs are that of “principal” and “agent” as the PPs are merely service providers and not buyers of CNG from MGL. Their obligation under the contracts is merely to provide assistance for supply/sale of CNG to the vehicles by MGL. For acting as an agent of MGL, PPs get specified service charges on “per kg” basis of the CNG sold by them on behalf MGL. Since the PPs are acting as agents of MGL for supply of CNG, PPs consider their activity as Business Auxiliary Service and pay service tax on the commission received from MGL. We find that sale of CNG by the Appellants to OMCs is on principal to principal basis, which is clear from various terms/covenants of the agreements between MGL and OMCs and MGL shall not be liable for any of the acts of omission/commission of OMCs.
It is also found that when CNG is supplied by MGL through PPs, there is no sale between MGL and PPs, as the sale takes place between MGL and the ultimate customers/vehicle users and the PPs act as agents of MGL; that the PPs were/are issuing cash memos/invoices/bills of MGL, when they supply CNG to customers/vehicle owners; that the PPs are acting as agents of MGL, for which they get specified service charges and the PPs are paying service tax on such amount; that, in contrast, as far as OMCs are concerned, sale of CNG takes place between MGL and OMCs at OMCs outlets and OMCs issue their cash memos/bills/invoices to their customers/vehicle owners and MGL do not have any role to play in such transactions; that commission paid to PPs was ₹ 1.20/kg, ₹ 1.74/kg, ₹ 1.90/kg and ₹ 2.45/kg during different periods, whereas discount given to OMCs was ₹ 1.20/kg, ₹ 1.40/kg, ₹ 2.42/kg, ₹ 2.62/kg and ₹ 2.74/kg during different periods. Therefore, we are of the view that the Appellants’ case is squarely covered under new Section 4(1)(a) of CEA which essentially permit different transaction values, unlike normal sales price existed prior to 1.7.2000, which has also been explained by CBEC, vide its Circular No.354/81/2000-TRU dated 30.06.2000. Therefore, since the Appellants have a strong case on merits itself and are allowing the appeals on merits, we are not discussing the alternate propositions like non-applicability of extended period, etc. The penalties imposed on the Appellants are also not sustainable. - Decided in favour of appellant
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2016 (9) TMI 781 - CESTAT HYDERABAD
Cenvat credit - invoices issued by M/s PPPL as Input Service Distributor (ISD) - appellants are engaged in manufacture of “PARLE” brand sugar boiled confectionary and were clearing their entire production to M/s PPPL - Held that:- the Rule 7 of CCR, 2004 clearly states that the input service distributor may distribute the CENVAT Credit in respect of service tax paid on the input service to its manufacturing units or units providing output service. The question is whether the appellant can be considered as a manufacturing unit of M/s PPPL. The crux of the first submission put forward by appellant is that the appellant would fall under the category of manufacturing unit of M/s PPPL as provided in Rule 7, CCR, 2004. It is the case of the appellant that as the appellant is manufacturing on behalf of M/s PPPL and under the scheme provided in notification no. 36/2001-CE (NT) dated 26.06.2001 the appellant has to be considered as manufacturing unit of M/s PPPL. However, this issue stands settled against the appellant in the case of Sunbell Alloys Com of India Ltd, Machsons Pvt Ltd., Vs CCE & C, Belapur [2014 (2) TMI 297 - CESTAT MUMBAI]. By following the same, I am able to conclude that appellant cannot be considered as a manufacturing unit of input service distributor, M/s PPPL, for the purpose of availing CENVAT Credit on input invoices issued by M/s PPPL.
The second contention raised by the appellant is that the amendment brought forth to Rule 7 with effect from 01.04.2016 being a ‘substitution’ has to be applied retrospectively. At the outset, it has to be stated that there is nothing in the amendment which says that the amendment is to apply retrospectively. The amendment does not appear to be clarificatory or for correcting any obvious mistake or for removing any discrimination between same class. Therefore, the judgments cited by the learned counsel for appellant in my view does not assist the appellant. As already stated since the amendment brought forth with effect from 01.04.2016 does not state that it is to apply retrospectively, I am able to conclude without any hesitation that the amendment is to apply prospectively only. From the foregoing I hold that the appellants are not eligible to avail CENVAT Credit on the input invoices distributed by ISD, M/s PPPL.
Invokation of extended period of limitation - Imposition of penalty - appellant contended that the SCN dated 21.02.2012 for the period August, 2005 to June, 2011 is time barred. So also in Appeal No. 27022/2013, some part in the period involved (July 2001 to May 2012) would fall beyond the normal period - Held that:- it is seen from the document/authorization filed by the appellant before the Jurisdictional Superintendent that the appellant had disclosed their intention to avail CENVAT Credit of central excise duty and service tax distributed by M/s PPPL. Further, it is seen that the relied upon documents for issue of the SCNs are nothing but the ER-1 returns, the letters issued by appellant to the department and authorization letter dated 15.09.2001. In such circumstances it cannot be said that the appellant has suppressed facts with intention to evade payment of duty. The department has failed to establish that there is willfull suppression with intent to evade payment of duty. Moreover, the issue has seen agitated before the Tribunal in many cases and therefore is an interpretational one. On such score I am of the view that the extended period is not invokable and that there is no ground for imposing penalty. - Decided partly in favour of appellant
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2016 (9) TMI 780 - CESTAT HYDERABAD
100% EOU - the goods should have produced or manufactured in 100% EOU wholly form the raw materials produced or manufactured in India - Classification - whether epoxy resin should be treated as consumables as per appellant or as a raw material as per Department which forms part of the final product - Held that:- the imported Epoxy resin only adds gloss and smoothness and fills up on the surface orifices. It is not disputed that the granite slabs is complete and ready for its intended use even without the use of Epoxy resin and that the latter only facilitates better visual appearance. Therefore, the said Epoxy resin cannot be considered as raw material in the facts of the instant case followed by the various decisions of Tribunal. - Decided against the Revenue
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2016 (9) TMI 735 - CESTAT NEW DELHI
Levy of penalty - no challenge to the confirmation of demand of duty or confiscation of the seized goods - unaccounted stock - The godown search revealed presence of the lamination goods, including inner pouch and outer packing with the brand name of the Kuber Group of Companies - The godown keeper the could not produce any documents to show the stock of the goods in the godown - Held that:- as per proviso to Section 11AC if an assessee pays 25% of the penalty within a period of 30 days from the imposition of penalties, the penalty shall stand reduced to the said amount.
Though the order of the Adjudicating Authority imposing penalty under Rule 25 cannot be faulted with though in normal circumstances penalty is required to be imposed in terms of Section 11AC, in which case the benefit of reduced penalty would have been available to the appellant, the said factor can be taken into consideration for reducing the penalty imposed under Rule 25. It already stand observed that Rule 25 does not require imposition of penalty to the extent of 100%. Further as a lot of time gap has passed between the date of passing of the order till date and the appellant had not deposited any penalty amount till date, I, by taking the interest factors into account reduce the penalty imposed upon M/s Jenith Laminators Pvt. Ltd. to 50% of the penalty imposed upon them.
As regards penalty imposed on the Directors, it is seen that Director in his statement has admitted removal of the goods from its factory to godown, without payment of duty, and as such, he is also liable to penalty. - Penalty on director also reduced to 50%
Decided partly in favor of assessee.
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2016 (9) TMI 734 - CESTAT KOLKATA
Cenvat Credit - eligible input - steel and bent - EOT Crane and Gratings - inputs or capital goods - Held that:- when structures like rollers, pulleys and guide rails are essentially required for the functioning of crane then the same have to be treated as an accessory of the machines for which Cenvat Credit under Cenvat Credit Rules is admissible.
So far as Cenvat Credit on Gratings used for operating the furnace is concerned, it is observed that such platforms are essential for operating the machines used in the manufacture of finished goods. In the case of Rosa Sugar Works v. Commissioner of Central Excise, Lucknow (2005 (10) TMI 304 - CESTAT, NEW DELHI), CESTAT Delhi has held that ladders and gratings used for reaching different platforms of the machines, used for processing or procuring finished goods, are eligible to Modvat Credit under Rule 57A of the Central Excise Rules, 1944.
Cenvat Credit with respect to EOT Crane and Gratings availed by the Appellant is available. However, Cenvat Credit with respect to steel and bent items is not agitated by the Appellant and is held to be inadmissible. - Decided partly in favor of assessee.
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2016 (9) TMI 733 - CESTAT HYDERABAD
Cenvat Credit - bogus and fictitious invoices - allegation of non-receipt of imported goods into the factory premises - retraction of statement - import of scrap for manufacturing of M.S.Ingots & Cast iron rough castings - Held that:- Two different adjudicating authorities, one at the original stage and the second in de-novo proceedings ordered by the Tribunal, have concurred with the facts and allegations in the show cause notice and have inter-alia confirmed recovery of the Cenvat credit found thereto to have been taken irregularly. In the second round of litigation, the Tribunal had remanded the matter back to the Commissioner (Appeals) for the reason that authority had not recorded any reasons for his conclusion that 'the impugned order is upheld and the appeal is dismissed. In the impugned order resulting out of such de-novo proceedings, it is seen that the Commissioner (Appeals), out of the nineteen paras of his order, devotes a mere three paras to analyze and arrive at the conclusion reached, which in itself throws doubt on whether he has sufficiently applied his mind in the matter.
It is further seen that the raison detre for setting aside of the order of original authority is the finding of the Commissioner (Appeals) that he "is inclined to agree with the appellants" with regard to the various apparent discrepancies pointed out by the latter. I do not thus find any independent application of mind by the Commissioner (Appeals). He has not weighed or analyzed the correctness of the contentions of the assessee, but only discovered an inclination to agree with them. "Inclinations to agree" with the submissions of the assessee cannot take the place of reasoned adjudication of issues that the Commissioner (Appeals), in the capacity of a quasi judicial authority is mandated to do.
On the other hand, I find that the Department, in the grounds of appeal filed by them, have ably countered and demolished the presumptions which the Commissioner (Appeals) relied upon while setting aside the adjudication order of the original authority.
In the cases of this nature involving illicit availment of Cenvat credit through false documents, the department is against heavy odds to unearth every stone of meticulously executed deception and innovative modus operandi. - Order of Commissioner (Appeals) cannot sustain - Demand confirmed - Decided in favor of revenue.
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2016 (9) TMI 732 - CESTAT HYDERABAD
Levy of penalty - validity of order of commissioner (appeals) in reducing the penalty - wrong availing of ineligible Cenvat Credit - improper duty paying documents - credit was reversed with interest at the instance of audit party - Held that:- When the said appellate authority is satisfied that it is a clear case of suppression of material facts, he cannot then go beyond the intention of the legislature in Explanation 1 to Section 11A (2B) ibid, and will necessarily have to uphold imposition of penalty equal to duty as mandated for such situations in Section 11AC ibid. The action of the Commissioner (Appeals) reducing the penalty under Rule 15 read with Section 11AC ibid for the period April .2009 to February 2011, trangresses the legal provisions as applicable during that period. Hence that portion of the impugned order reducing the penalty amount of ₹ 31,11,108/- to ₹ 22,14,085/- for the period April, 2009 to February, 2011 is set aside and the order of adjudicating authority imposing penalty equal to duty demanded will stand restored. - levy of penalty restored - Decided in favor of revenue.
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2016 (9) TMI 731 - CESTAT MUMBAI
Valuation - interconnected / related parties - allegation of evasion of duty of excise by undervaluation where goods are sold through related persons - Held that:- there is nothing on record to show that PSML had interest in the business of KBX. PSML had no interest in the business of KBX but for selling of the products to them. The loans advanced by KBX to PSML were also on an interest which was higher than the bank rate, the fact undisputed in the proceedings before the lower authorities; moulds which have been given by KBX to PSML cannot be a reason to state that they had interest in the business of each other. - Demand set aside - Decided against the revenue.
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2016 (9) TMI 730 - CESTAT CHANDIGARH
Generation of waste during manufacturing process - allegation of clandestine removal of goods - It was submitted by the respondent that there was nominal burning loss of 1.15% and 1.19% during the said period. - Held that:- The whole investigation/ audit remained faulty and the show cause notices were issued to both the respondents in the wake to allege the respondent no.1 has cleared the goods clandestinely. In the show cause notice it was not considered that when the respondent no.1 has cleared waste and scrap on payment of duty therefore, on such quantity of waste and Scrap, further, duty was not required to be demanded.
Accordingly, on the basis of assumption and presumption it was alleged that respondent no.2 has not received the goods. Accordingly, I find that whole investigation is faulty and the show cause notices were issued to the respondent without producing any evidence on records. - Demand set aside - Decided in favor of asssessee.
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2016 (9) TMI 729 - CESTAT CHENNAI
Refund of unutilized Cenvat Credit - eligible input services - export of taxable services - Technical Inspection and Certification Service - Renting of Immovable Property & Security service - Air Travel Agent - Held that:- Technical Inspection services play significant role in the export of services and hence, the credit availed by appellant is very much in order and consequently appellant would be very much eligible for the refund.
Rent has been paid for maintenance of sales office which has a direct nexus with the output service provided by the appellants and hence are eligible for the credit.
As long as the Travel Agency Service is not received for personal benefit of any employee but meant for travel of office personnel, credit is not deniable. This service is in connection with production, planning, marketing etc.
Credit allowed - Decided in favor of assessee.
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2016 (9) TMI 728 - CESTAT AHMEDABAD
Reversal of Cenvat Credit - sale of plant and machinery (capital goods) - contravention of the Rule 3(5) of Cenvat Credit Rule 2004 - Held that:- the impugned order is set aside and the matter is remanded to the Adjudicating Authority to re-determine quantum of Cenvat Credit by taking into consideration the depreciation allowed under the relevant rules as laid down in Navodhaya Plastic Industries Ltd.'s case (2013 (12) TMI 82 - CESTAT CHENNAI). - Decided partly in favor of assessee.
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2016 (9) TMI 727 - CESTAT MUMBAI
SSI exemption - use of Brand Name belong to the assessee or not - similar “Brand Name” - Held that:- It is visible clearly and seen by the naked eye that the “Brand Name”; which is registered in the appellant’s name definitely is different than the Trade Mark registered in the name of M/s Navin Bharat Industries Pvt. Ltd. On this point and merits itself, we find that the impugned order is unsustainable and liable to be set aside and we do so; as there being no dispute that appellant is using only the Trade Mark assigned their products.
The reliance placed by the learned Departmental Representative in the case of Rukmani Pakkwell Traders (2004 (2) TMI 69 - SUPREME COURT OF INDIA), will not carry their case any further, in as much as in that case; the registration was Brand in the name of more than one person. Registration with the Trade Mark Authority of the “Brand Name” in this case as reproduced herein is in the name of appellant. Accordingly when the “Brand Name” is in the name of appellant benefit of SSI exemption in accordance with law needs to be extended to appellant.
Benefit of exemption allowed - Decided in favor of assessee.
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2016 (9) TMI 684 - CESTAT NEW DELHI
Cenvat Credit - pre-mature credit on input services - credit availed before making payment - Scope of Rule 4(7) of Cenvat Credit Rules, 2004 - Held that:- Merely because the respondent have made an entry in their records prior to the date when the credit became due to them, would not result in denial of the credit. Similarly, if the credit has not been utilized by them prior to the said date of admissibility; no demand of interest can be made against them and no penalty can be imposed.
Cenvat credit being a substantial benefit cannot be disallowed on the technicalities. - Decision in the case of CCE, Surat II vs. White En-All Pvt. Ltd [2003 (10) TMI 533 - CESTAT, MUMBAI] followed - Decided in favor of assessee.
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2016 (9) TMI 683 - CESTAT NEW DELHI
Classification - woven goods - It was contended that, all these goods are actually labels/labels tapes bearing lace like ornamental designs/images and were manufactured by the similar process of weaving along with other labels of various designs falling under CETH No. 58.07 attracting nil rate of duty. - goods falling under Chapter Heading 58.04 or CETH No. 58.07 - Held that:- Considering the Explanatory Notes of Chapter Heading 5804, when the subject goods cannot be classified as lace under this Chapter, other classification in alternative in the present proceedings is Chapter Heading 5807. Therefore, only choice for the classification now in the present proceedings is Chapter Heading 5807 as the Revenue has not pleaded any other classification i.e. in lieu of Chapter Heading 5804 other than 5807. We accordingly hold that the goods presently deserve classification under Chapter Heading 5807 of Central Excise Tariff. - Matter remanded back for quantification of duty, if any. - Decided partly in favor of assessee.
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