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Central Excise - Case Laws
Showing 121 to 140 of 412 Records
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2017 (9) TMI 1312 - CESTAT KOLKATA
CENVAT credit - job-worked material - Rule 3(1) of the Central Excise Rules - Held that: - the adjudicating authority has discussed the statement of the appellant, case laws. But, it has not discussed the facts of the case as based on the records of the transaction under the provisions of erstwhile Central Excise Rules and present Central Excise Rules, as contended by the appellant - it is required to examine the facts of the case on the basis of the records and thereafter the applicability of law and case law could be decided - appeal allowed by way of remand.
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2017 (9) TMI 1311 - CESTAT KOLKATA
Penalty u/r 26 - case of appellant is that appellant being the eldest daughter of the Managing Director, had no other option but to sign all the documents of the Company including the Central Excise related documents - Held that: - In the statement of facts, it is mentioned that the concerned employees of the Company not only cheated her by mis-using their position, the Company also had to suffer embezzlement resulting in considerable financial loss as well as loss of reputation - the Adjudicating Authority had already penalized the Company by imposition of penalty under Section 11AC of the Central Excise Act, 1944. There is no material available on record to show that the appellant had conscious knowledge of the alleged irregularity. Therefore, the imposition of penalty on the appellant is not justified - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1310 - CESTAT KOLKATA
Credit of CVD - duty paying invoices - Respondent failed to produce the original/duplicate/triplicate copies of the Bill of Entry amounting to Countervailing Duty credit of ₹ 17,28,847/- - Held that: - It is contended by the Revenue in their appeal that the respondent had not produced any evidence before the Adjudicating Authority to prove that the inputs were actually received in the factory of the respondent - the Revenue had not disputed the above finding categorically. Hence, the appeal of the Revenue on this issue is without any substance.
CENVAT credit - P.P. Woven Sacks which is similar to the final product manufactured by the Respondent - Held that: - there is no bar to avail Cenvat Credit on receipt of the duty paying goods under Rule 16(2) of the Rules, 2002. Therefore, there is no force in the grounds of appeal of the Revenue on this issue.
Appeal dismissed - decided against Revenue.
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2017 (9) TMI 1309 - CESTAT KOLKATA
Waste and scrap arising in the course of manufacture of exempted goods - N/N. 89/95-CE dated-18/5/1995 - manufacture of Wagons - Held that: - the appellants are manufacturing dutiable as well as exempted railway wagons - It is clear from the wording of N/N. 89/95-CE that the exemption does not apply if the goods cleared from the factory are exempted goods and dutiable goods - Since in this case, the factory is producing both type of goods, the benefit of exemption is not available to the appellant.
Penalty - Held that: - appellant were repeatedly told by the Department, still they were not maintaining any record nor following any excise procedures. The appellant’s plea that the issue involves interpretation of Notification is not correct as the wording of the notification is clear and unambiguous - penalty rightly imposed.
Appeal dismissed - decided against appellant.
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2017 (9) TMI 1256 - SC ORDER
Condonation of delay - Maintainability of appeal - project import - the decision in the case of Commissioner of Central Excise and Service Tax Versus Kei Industries Limited [2017 (4) TMI 942 - RAJASTHAN HIGH COURT] contested - Held that: - delay condoned - leave granted.
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2017 (9) TMI 1255 - PUNJAB & HARYANA HIGH COURT
Offence under Section 9 of CEA - framing of charge - case of petitioners is that once order of Commissioner Central Excise dated 28.7.2001 was set aside in appeal by Appellate Tribunal vide order dated 6.11.2003, the complaint which was based primarily on the order of demand dated 28.7.2001 could not be sustained since the genesis of the complaint had disappeared - Held that: - there is no ground to accept the petition and quash the complaint besides ancillary proceedings.
The prosecution has been launched against the accused for committing an offences under Sections 9 and 9AA of the Act for the reason that chenille yarn was found in the factory premises of the accused without any record being maintained in that regard, rather it was wrongly described as cotton yarn. The complaint is based upon such allegations. When charge was framed against the accused by Chief Judicial Magistrate, Panipat, these very contentions had been raised there but were rejected by learned Chief Judicial Magistrate and accused was served with charge-sheet. They had filed a representation against the order framing charge but again were unsuccessful as their revision petition was dismissed by learned Additional Sessions Judge vide order dated 7.8.2014 giving detailed reasoning citing case law and observing that adjudication proceedings and criminal proceedings are independent and can go on simultaneously and finding in adjudication proceedings is not binding on criminal proceedings.
The order passed by the Commissioner is a relevant piece of evidence to support the contentions in the complaint but besides that there is other evidence also both oral as well as documentary as it comes out from the perusal of the complaint. Therefore, no ground is made out to accept the petition and to quash the complaint and subsequent ancillary proceedings.
Petition dismissed - decided against petitioner.
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2017 (9) TMI 1254 - DELHI HIGH COURT
Interpretation of statute - ‘case’ within the meaning of Section 31 (c) of the CEA - application under Section 32E filed by petitioner - Settlement Commission rejected the application filed by the Petitioner on the ground that the matters stood adjudicated and hence the Petitioner’s application was no longer in respect of a ‘case’ within the meaning of Section 31 (c) of the CEA - whether the Settlement Commission was right in rejecting the applications filed by the Petitioners, filed before it on the ground that there was no `case' pending in terms of Section 31 (c) of the Central Excise Act, 1944?
Held that: - an application under Section 32E has to be made ‘before adjudication’ - It is clear from a conjoint reading of Sections 31 (c) and 32E of the CEA, that if any proceeding is pending before the adjudicating authority on the date on which the application under Section 32E is filed, the said application would be maintainable, subject to the fulfilment of the other requirements under Section 32E of the CEA.
In the present case, there is no dispute as to the date of the order passed by the adjudicating authority. The date of the order is 7th December, 2016, though, the date appearing on the order itself is 2nd December, 2016 - There is no cavil to the conclusion that the date of the order in the present case is 7th December, 2016 and the date of the filing of the application before the Settlement Commission is 5th December, 2016. Thus, on the date when the application came to be filed before the Settlement Commission, the proceeding was pending before the adjudicating authority. In the circumstances, the Settlement Commission was in error in holding that the application before it was not maintainable.
The applications of the Petitioners are held to be maintainable - petition allowed - decided in favor of petitioner.
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2017 (9) TMI 1253 - CESTAT KOLKATA
Valuation - related party transaction - High Tensile Stranded Iron & Steel Wires - some excisable goods are also sold to independent buyers at the same rate - department is of the view that in respect of sales of goods to related persons, the same cannot be assessed on the price sold to independent buyers, but will need to be charged to duty at the rates determined on the basis of cost of production on which profit margin is added - Held that: - Rule 8 & 9 comes into play when goods are sold by an assessee only through related person and not when goods are sold both to related persons and independent buyers - similar issue decided in the case of ISPAT INDUSTRIES LTD. Versus COMMISSIONER OF C. EX., RAIGAD [2007 (2) TMI 5 - CESTAT, MUMBAI], where it was held that provisions of Rule 8 would apply only in case where its entire production production of a particular commodity is captively consumed - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1252 - CESTAT KOLKATA
CENVAT credit - input services - Customs House Agent (CHA) service - Port Services - Steamer Agent Services - denial on the ground that the services were used outside the factory premises not being in relation to manufacture of their finished goods and therefore, did not qualify as an input service? - Held that: - There is no dispute of the fact that the goods have been exported. In such cases the place of removal is the port where the exports are loaded on to the vessel - Hon’ble High Court of Gujarat in the case of Inductotherm India Pvt. Ltd [2014 (3) TMI 921 - GUJARAT HIGH COURT] has granted the credit of CENVAT Credit for Cargo Handling Services used for clearance of final product from the port for export.
Even though, the Hon’ble High Court has held that in the Cargo Handling service, the same ratio will be applicable to calculate free service which are in dispute before us since, all of them have been rendered in the port for export of goods.
Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1251 - CESTAT KOLKATA
CENVAT credit - fake invoices - Held that: - it is clearly established that no goods accompanied invoices by those two dealers M/s BSC and Steel Centre. Consequently, the CENVAT Credit availed by MCU on the basis of such invoices are irregular and needs to be disallowed - similar issue of fraudulent CENVAT Credit availment on the invoices issued by first stage dealers came up before the Mumbai Bench of the Tribunal in the case of Bhagwati Steel Casts Ltd. Vs. CCE, Nasik [2013 (1) TMI 123 - CESTAT MUMBAI] in which Tribunal, vide three Member Bench decision. upheld the order and disallowed the CENVAT Credit on the basis of dealer's invoices which were accompanied by consignment notes in which vehicle numbers were found to be incapable of transporting goods - recovery of CENVAT Credit along with interest as well as penalty of ₹ 1,16,03,673/- imposed against MCU, are upheld.
Since penalty has been imposed on M/s. Bhagwati Steel Centre, we feel no separate penalty is required to be imposed on Shri Bimal Kr. Kheria, partner of M/s Bhagwati Steel Centre.
Appeal allowed - decided partly in favor of appellant.
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2017 (9) TMI 1250 - CESTAT CHENNAI
Manufacture - process of cutting of waste plastic container - raw material / packing material - some of plastic containers were found to have defects, breakage, leakage etc. As such plastic containers can no longer be used for the intended purpose, the appellant cleared them as waste - Held that: - The appellant has cut the broken / defective containers because these bore the brand name. By such cutting of waste plastic containers no new product with a new name emerges. Such plastic containers before and after cutting are nothing but waste / scrap. It is correct that appellant has no intention to manufacture waste and is registered for manufacture of packaged drinking water - similar issue decided in the case of M/s. Pepsico India Holdings (P) Ltd. Versus CCE- Meerut-II [2015 (10) TMI 1133 - CESTAT NEW DELHI], where in similar situation it was held that manufacture does not take place.
The demand is not sustainable - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1249 - CESTAT KOLKATA
CENVAT credit - duty paying invoices - It has been alleged that the assessee availed CENVAT Credit on the basis of parallel set of invoices or trader s invoices and JVAT 304 P forms - clandestine removal - Held that: - the entire demand of duty was raised on the basis of the records recovered from the premises of M/s Bharat Alloys Pvt. Ltd. - But the revenue in their grounds of appeal had not placed any evidence corroborative with the records of the assessee. It is well settled that the charge of clandestine removal cannot be established on the basis of the documents recovered from the premises of the third partly, unless, it is corroborative with the record of the assessee.
Penalties on partners - Held that: - the Commissioner (Appeals) already imposed penalty of equal amount of duty on the assessee. Further, the Adjudicating Authority had not categorically discussed the role of the partners for imposition of penalty. Therefore, the Commissioner (Appeals) rightly set aside the penalties on the partners.
Appeal dismissed - decided against Revenue.
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2017 (9) TMI 1248 - CESTAT CHENNAI
CENVAT credit - manufacture of taxable as well as exempt goods - non-maintenance of separate records - Rule 6 (3) (a) of CCR, 2004 - case of appellant is that they have reversed more than the credit than what ought to have been paid by them as per Rule 6 (3) (a) of CCR, 2004, therefore nothing further is required to be paid by them in terms of reversal of cenvat credit.
Held that: - It is consistently agreed upon in the SCNs that the appellants had reversed such credit, however, while considering the input credit for reversal, the notices had omitted to consider input service credit reversed, and hence, the credit actually reversed by the appellants has not been calculated correctly. Now the Ld. Advocate avers that the appellant has reversed much more than that required to be reversed by them in the impugned period under Rule 6 (3) (a) of the Rules - such an averment would require to be verified - for the limited purpose for causing verifying the claim of the appellant that the entire quantum of Cenvat credit required to be reversed as indeed been reversed, the matter is remanded for denovo adjudication.
Penalty u/r 15 of CCR - Held that: - Rule 15 of the said Rules contains provisions for confiscation and penalty in cases where Cenvat credit in respect of input or capital goods or input services has been taken or utilized wrongly - During the impugned period, provision for imposition of penalty equal to the wrongly taken or used cenvat credit was applicable when such credit was taken or utilized wrongly by reason of fraud, collusion, or willful mis-statement or suppression of facts or contravention of concerned statutory provisions with intent to evade payment of service tax - There is no allegation of suppression or fraud, collusion, willful mis-statement either in the SCNs or in the impugned orders - penalties set aside.
Appeal allowed by way of remand.
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2017 (9) TMI 1247 - CESTAT CHENNAI
Classification of goods - whether the printed computer stationary/manifold Business Forms are to be classified under Chapter Heading 4820.00 attracting 4% duty adv. from 01.03.2002 to 28.02.2003 or under Chapter Heading 4901. 90 attracting NIL rate of duty as contended by the appellant?
Held that: - The Ld. Counsel has produced before us the sample copies of the manifold business forms pertaining to Table II which is under dispute. One such item is the cash certificate/fixed deposit certificate printed for a Bank. The others are Bill for Telecom, Tuticorin District, Tax invoice for S.P. Hotel &Towers, Receipt for LIC, Inland letter form for submitting voting particulars for Rane Brake Lining Ltd. etc. We are convinced that these are customized maniform business forms and cannot be sold in open market - The co-ordinate Bench of the Tribunal in the case of Data Processing Forms Pvt. Ltd. Vs. CCE, Ahmedabad [2011 (9) TMI 921 - CESTAT AHMEDABAD] had occasion to analyse a similar issue, where, The printed products scanned and made part of the judgement are identical in character to those placed before us. The Tribunal has observed that merely because some details are to be filled in, such customized forms cannot be excluded from Chapter 49.
The products listed in Table II merit classification under Chapter 49. It is seen that the Commissioner (Appeals) has accepted the contention of appellant and classified items like A4 sheets, advertisement and job card under Chapter 49 - when the impugned items are classified under CETH 49 would attract NIL duty and then the appellant would be well within the SSI exemption limit. The demand is therefore unsustainable - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1246 - CESTAT KOLKATA
Write off of value of inputs - Rule 3 (5B) of the Cenvat Credit Rules, 2004 - case of Revenue is that appellant had written off the value of inputs at the time of annual stock taking, but did not reverse the amount of CENVAT credit for the period 31.12.2004 and for the year 2005-06 on the said inputs - Held that: - Rule 3 (5B) was inserted in the statute by N/N. 26/2007-CE(NT) dated 11.05.2007 - The present case relates to the period 2005-06, prior to the insertion of Rule 3 (5B) in the statute.
The Hon’ble Gujarat High Court in the case of Commissioner of Central Excise Vs. Ingersoll Rand (India) Ltd. [2013 (2) TMI 32 - GUJARAT HIGH COURT] observed that there was no authority of the reversal of MODVAT Credit in cases which are covered prior to introduction of Rule 3 (5B) of Cenvat Credit Rules, 2004.
Appeal dismissed - decided against Revenue.
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2017 (9) TMI 1245 - CESTAT BANGALORE
Refund claim - Rule 5 of CCR, 2004 - time limitation u/s 11B of the CEA, 1944 - case of Revenue is that refunds were rejected as the appellants have failed to furnish the documents in support of their claims - Held that: - appeals are required to be remanded back to the original authority for verification of the documents which may be produced by the appellants in support of their claim for refund - It is expected from the appellant to render proper assistance to the original authority for verification of the documents as the documents are voluminous in nature - appeal allowed by way of remand.
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2017 (9) TMI 1244 - CESTAT BANGALORE
CENVAT credit - non-maintenance of separate records - Rule 6(3A) of the CENVAT Credit Rules - Held that: - there is no dispute as to the fact that the appellant had reversed the proportionate CENVAT credit attributable to inputs and input services utilized for manufacturing and clearing of exempted goods; that they have not informed the Revenue authorities at the beginning of the year i.e., 2008-09 as to the intention to reverse the proportionate CENVAT credit as per Rule 6(3A) of the CENVAT Credit Rules, 2004.
Since there is no denial that the appellant had reversed the proportionate CENVAT credit in time as provider, the ratio of the Division Bench of the Tribunal in the case of Cranes and Structural [2016 (8) TMI 387 - CESTAT BANGALORE], will squarely apply to the case in hand, wherein it has been held that provisions of Rule 6(3A) are procedural in nature and if they are compiled subsequently within the time, should be held as compliance of the provisions of CENVAT Credit Rules.
Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1187 - GUJARAT HIGH COURT
CENVAT credit - inputs - time limitation - Held that: - the assessee had never raised the contention of unreasonable delay in raising the demand before the adjudicating authority or even before the first appellate authority in precise form. The statute does not envisage any period of limitation - What is reasonable period is always a question of fact to be gathered on the basis of relevant facts and circumstances brought on record. Even the assessee had not brought any relevant facts on record before the adjudicating and appellate authority. A mere contention before the Tribunal at the second appellate stage would not be permitted - appeal dismissed.
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2017 (9) TMI 1186 - JAMMU & KASHMIR HIGH COURT
Validity of SCN - Whether the Tribunal has erred in holding that non-invocation of a proviso appended to Notification in the show cause notice issued by the department, which was otherwise covered by Rule 9 and 49 of the Central Excise Rules, 1944 invoked in the show cause notice, can be a ground for dismissal of the said show cause notice? - Held that: - Admittedly, under the trade notice No. 112/94-CE dated 15.12.1994, the duty liability could have been discharged by the assessee at single yarn off spindle stage. However, subsequently by issuance of notification dated 18.05.1995, the aforesaid exemption which was granted to the assessee was withdrawn. In other words, from 18.05.1995 onwards, the assessee was required to discharge the duty liability only after doubling multi-folding of the yarn at the time of clearance - the show cause notices were invalid merely on the ground that in the show cause notices, no specific mention has been made to the proviso added to the notification dated 18.05.1995.
It is evident that the aforesaid show cause notice gives the sufficient particulars with regard to the basis on which the demand of duty, penalty and interest was being made by the Revenue. It is pertinent to mention here that the assessee did not raise the issue with regard to vagueness of the show cause notices either before the Adjudicating Authority or before the Appellate Authority. The aforesaid contention has been raised for the first time in the objections which have been filed in this appeal. Therefore, the assessee cannot be allowed to raise a new plea for the first time in this appeal.
Appeal allowed - decided in favor of Revenue.
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2017 (9) TMI 1185 - MADRAS HIGH COURT
Clandestine manufacture and removal - no evidentary value - it has been claimed that entire demand is based on mere assumptions and presumptions without a concrete proof to substantiate the same - Held that: - issues raised before CESTAT, Madras have not been properly adverted, as required - reliance placed in the case of H.V.P.N.L. Versus Mahavir [2000 (9) TMI 1063 - SUPREME COURT], where it was held that the appellate forum is bound to refer to the pleadings of the case, submissions of the counsel, necessary points for consideration, discuss the evidence, and then to dispose of the matter by giving valid reasons - matter is remitted to the CESTAT, with a direction to consider the pleadings, grounds of appeal raised and pass orders, in accordance with law - appeal allowed by way of remand.
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