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Central Excise - Case Laws

Showing 141 to 160 of 225 Records

• 2015 (3) TMI 425 - CESTAT BANGALORE
  

  Waiver of pre deposit - Benefit of exemption under Notification No.67/95-CE dated 16.3.1995 - Clearance of molasses for captive consumption - Reversal of CENVAT Credit - Held that:- Final order of this Tribunal relied upon by the learned counsel in respect of the very same appellant on the very same issue is applicable to the facts of this case and the fact that the commissioner for a subsequent period has also followed this decision would support the case of the appellant. Moreover the decision in the case of Jeypore Sugar Co. Ltd. (2012 (8) TMI 828 - CESTAT BANGALORE) is also applicable. In this view of the matter, the requirement of pre-deposit is waived and stay against recovery is granted during the pendency of appeal. - Stay granted.

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• 2015 (3) TMI 424 - CESTAT MUMBAI
  

  Denial of CENVAT Credit - Receipt of defective tubes - Tubes were returned to the supplier for repair but instead of repair of the said tubes, the supplier supplied fresh tubes without payment of duty - Held that:- Shri P.M. Narvekar, the Quality Control officer of the appellant have made a statement under Section 14 of the Central Excise Act, 1994 on 11.09.1993 confirming that they are receiving fresh manufactured “aluminium collapsible tubes” as replacement for the rejected tubes from M/s. Jyoti Record Manufacturing Co. Ltd. The statement of the Quality Control officer is relevant to decide the issue before me. The said statement confirmed the allegation alleged against the appellant as the said statement has not been retracted. Therefore, as per the decision of CC vs. D. Bhoormull [1974 (4) TMI 33 - SUPREME COURT OF INDIA] wherein it is held that what is admitted need not be proved; the statement of the Quality Control Officer is conclusive. - Decided against assessee.

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• 2015 (3) TMI 423 - CESTAT MUMBAI
  

  Denial of CENVAT Credit - failure to co-relate the pest control services with the manufacturing of final product - commission has been paid under Business Auxiliary Service - Held that:- Any service availed by a manufacturer of excisable goods, in the course of their business, is entitled for input service credit. Admittedly, in this case the commission has been paid by the appellant for procuring the inputs and the pest control has been done in their factory for cleanliness of the factory. In these circumstances, I hold that the appellant has availed these services in the course of their business of manufacturing of excisable goods. Therefore, the appellant is entitled for inputs service credit. Accordingly, the impugned order is set aside - Decided in favour of assesse.

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• 2015 (3) TMI 422 - CESTAT MUMBAI
  

  Denial of CENVAT Credit - penalty under Rule 13 of the CENVAT Credit Rules, 2002 - Held that:- Penalty under Rule 13 can be imposed on the person who is taking credit. In this case, the credit has been taken by M/s. Anthea Aromatics P. Ltd. and not by Shri Vincent Paul. Therefore, following the aforesaid decision, I hold that the penalty on Shri Vincent Paul is not sustainable - Coming to the penalty imposed on M/s. Anthea Aromatics P. Ltd. the show-cause notice alleges that assessee has intentionally/wrongly availed credit. When the department is also of the view that credit has taken wrongly then it cannot be held that it has been taken intentionally, as ‘intentionally' and ‘wrongly' are contrary terms. These terms cannot be applied concurrently. Therefore, the conclusion is drawn that the appellant has taken credit wrongly. Therefore, the penalty under Rule 13 (2) cannot be imposed. - Commissioner has observed that penalty under Rule 13(1) can be imposed on the appellant but he further observed that the appellant has not been able to make out a case for reduction of penalty. But he failed to discuss why the appellant has not made out a case for reduction of penalty. In this case, the appellant has apparently lost the refund admissible to them. Therefore, the appellant has made out a case for leniency in imposing penalty - Penalty reduced - Decided partly in favour of assesse.

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• 2015 (3) TMI 386 - CESTAT CHENNAI
  

  Denial of CENVAT Credit - credit availed on Tarpaulin - Held that:- During the material period, the appellant paid duty on Tarpaulin under chapter Heading 39 of ₹ 66,58,896/-. It is also seen from the impugned order, demand of duty would be under chapter 63 of ₹ 32,56,316/-. The adjudicating authority observed that the show cause notice is silent as to whether duty is leviable on double side coated fabrics captively consumed in final product classifiable under Chapter 39. The main contention of the learned advocate is that they have paid duty of ₹ 66,58,896/- and the total demand would be only ₹ 32,56,316/. Thus it is clearly evident that they have paid excess duty. There is no material available that any demand was raised on double side coated fabrics captively consumed in the final product. In view of that, we find that they paid duty of ₹ 66,58,896.00 against the demand of ₹ 32,56,316/- and therefore denial of modvat credit of ₹ 12,24,357/- is not justifiable. - Decided in favour of assessee.

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• 2015 (3) TMI 385 - CESTAT AHMEDABAD
  

  Valuation of goods - Appellant is also taking CENVAT Credit of the valves used in the maintenance & repairs - whether appellant is required to add the value of the valve supplied during repairs & maintenance of the gas cylinders - Held that:- After perusal of the representative invoices produced by the Ld.Advocate it is not coming out whether VAT is paid on the sale of valves as claimed by the appellant. Even if it is accepted that while providing the services there is sale of valves the same will amount to clearing of inputs as such on which CENVAT Credit is required to be reversed at the time of clearance as per CENVAT Credit Rules 2004. As the factum of payment of VAT/Sales Tax is not coming out of the copies of invoices relied upon by the appellant, the matter is required to be remanded to the adjudicating authority for such verification. Appellant is required to produce all the records before the adjudicating authority that VAT/Sales Tax is paid on the valves sold to the customers during the course of providing services. - Matter remanded back - Decided in favour of assesse.

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• 2015 (3) TMI 384 - CESTAT CHENNAI
  

  Waiver of pre deposit - valuation - sale to related parties - mutuality of interest - Held that:- There is no dispute that the applicant cleared the goods to the related persons. It is seen that there is a wide difference in prices for rods of similar strength and width as could be evident from the sale invoices of the transaction with the above two dealers and the sale invoice for the transaction made on the same days to the other buyers. It has been observed that the applicant has not placed evidence that they have sold the excisable good to unrelated buyers at lower value at which they sold the goods to the two dealers. In the case of Jai Balaji Jyoti Steel Ltd. Vs. CCE - [2014 (8) TMI 749 - CESTAT KOLKATA] whereby unconditional stay was granted in an identical situation. Tribunal granted stay on the ground that merely because there is a common director between the assessee and the other two units. It is observed that there is no material available that there is mutuality of interest between the two parties. In the present case, there is evidence placed by the Revenue that the transaction price between the assessee and the two dealers are much lower than the transaction value of other buyers. So, the case law relied upon by the applicant would not be applicable in the present case. - there is mutuality of interest on the basis of evidence placed by the Revenue that the transaction value of the two dealers is much lower than the transaction value of other buyers and therefore the applicant failed to make out a prima facie case for waiver of predeposit of entire dues. The learned consultant has not pleaded any financial hardship. - Partial stay granted.

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• 2015 (3) TMI 383 - CESTAT KOLKATA
  

  CENVAT Credit - absence of any machinery provisions in the Act or the Rules for the recovery - Rule 57CC - Held that:- Appellants have made an offer to reverse the actual modvat credit taken on the inputs which have been used in the manufacture of exempted product in terms of Rule 57C. It is seen that they have also deposited an amount of ₹ 35,000/- towards such reversal. Keeping in view the Tribunal's decision and the appellants offer to reverse the credit, we set aside the impugned order and remand the matter to the original adjudicating authority for quantification of the actual modvat credit availed by the appellants on the inputs used in the manufacture of exempted product. Penalty of ₹ 25,000/- imposed upon the appellants is also set aside - Decided in favour of assesse.

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• 2015 (3) TMI 382 - CESTAT MUMBAI
  

  Manufacturing activity or not - activity of cutting the plastic films and sheets into required shape as per customer's requirement - Held that:- The activity undertaken by the appellant is cutting of plastic sheets/films purchased from the market into required shapes and sizes such as annular foam ring, rounds and squares as required by the customers. Merely cutting a sheet or film into required shape of size does not result in bringing into existence any new product and therefore, there is merit in the contention of the respondent that the activity undertaken by them did not amount to "manufacture". The lower appellate authority has also come to the same conclusion. - No infirmity in the order passed by the lower appellate authority - Decided against Revenue.

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• 2015 (3) TMI 381 - CESTAT MUMBAI
  

  Refund claim - Wrong classification of goods - Demand of differential duty - Unjust enrichment - Payment of duty under protest - Held that:- The fact that the respondent has paid the differential duty under protest after clearance of the goods, these are not in dispute. The case law relied by the ld. AR are not relevant to the facts of the case as in Maharashtra Cylinder Ltd. (2003 (8) TMI 96 - CESTAT, MUMBAI) there was a price variation in the agreement. In the case of Gujarat State Fertilizers & Chem. Ltd. (2004 (1) TMI 143 - CESTAT, NEW DELHI), the duty was paid at the time of clearance of the goods. But in this case, the duty in dispute has been paid after the clearance of the goods. Further, facts of the case are very much similar to the case of Easter Industries Ltd (1999 (8) TMI 915 - CEGAT, NEW DELHI), wherein the Tribunal held that the duty has been paid by making debit entry is made subsequent to the clearance of the goods to the effects that the incidence of duty has not been passed on the buyers. Therefore, I do not find any infirmity in the impugned order, same is upheld as revenue has not produced any evidence on record that duty incidence has been passed on to the buyers. - Decided against Revenue.

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• 2015 (3) TMI 380 - CESTAT MUMBAI
  

  Denial of input credit - denial on the premise that the process of repairing, reconditioning etc. cannot be treated as manufacturing activities - Denial of input service credit - service availed beyond the place of removal - Held that:- It is not disputed that the Rubber Conveyor Belts in question have been cleared by the appellant on payment of duty. Therefore, the duty paid at the time of clearance amounts to reversal of CENVAT Credit on inputs cleared "as such" or the activity of repairing, reconditioning etc. does not amounts to manufacture as per the decision in the case of Ajinkya Enterprises (2012 (7) TMI 141 - BOMBAY HIGH COURT). Therefore, I hold that the appellants are entitled to avail input credit on the Rubber Conveyor Belts in question. Further, I hold that in case of export, the place of removal is the port from where the goods have been exported. Therefore, the appellants are entitled to take input service credit on the CHA service. Accordingly, I hold that the appellants are entitled to take credit on input service in question. - Decided in favour of assesse.

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• 2015 (3) TMI 379 - CESTAT NEW DELHI
  

  Denial of CENVAT Credit - Held that:- There is no dispute about the fact that the manufacturers of the inputs raised the cenvatable invoices, giving all the details, including duty payment particulars. The inputs were received by the appellants, who took the credit based upon the declaration made by the manufacturer. The question which arise as to when the manufacturer has given wrong declaration as regards duty payments in the invoices raised by them, whether the credit can be denied to the input recipient or the Revenue's remedy lies at the manufacturer end for the demand of duty. - issue is no more res integra and stands settled by the Board Circular No.766/82/2003-CX, dated 15.12.2003 as also by various decisions of the Tribunal [2006 (11) TMI 494 - CESTAT, MUMBAI] laying down that in such scenario, the input recipient cannot be denied the credit.

  Demand is hit by bar of limitation. Admittedly, the appellants had taken the credit by reflecting the same in their records. When the invoices received by them are showing duty payment, the input recipient cannot be expected to know that the manufacturer has not actually discharged the duty burden. Accordingly, I hold that the demand is also barred by limitation. - Impugned order is set aside - Decided in favour of assessee.

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• 2015 (3) TMI 378 - CESTAT MUMBAI
  

  Imposition of duty on manufacture of shawls - Held that:- In the present case, the shawls have been woven directly from the yarn in running length and dividing lines have been provided between shawls so that, they can be cut, packed and marketed. There is no evidence of any fabric having emerged at the intermediate stage. Therefore, the ratio of the decision in the case of Amristar Swadeshi Woollen Mills (2004 (3) TMI 624 - CESTAT, NEW DELHI) would squarely apply. - Decided in favour of assessee.

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• 2015 (3) TMI 340 - CESTAT MUMBAI
  

  Waiver of pre-deposit of duty, interest and penalties - benefit of Notification No. 23/2003-CE and 52/2003 Cus both dated 31.03.2003 - Held that:- Rule 17 clearly stated that for payment of duty on clearance of any goods the applicant being 100% EOU could utilize CENVAT Credit account. Therefore, prima facie the applicant has made out a case for waiver of the requirement of pre-deposit of Central Excise and Customs duty, interest and penalties. Accordingly, we grant waiver of the pre-deposit of the entire amounts adjudged in the impugned order and stay recovery thereof during the pendency of the appeals. - Stay granted.

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• 2015 (3) TMI 339 - CESTAT CHENNAI
  

  Waiver of pre deposit - Denial of CENVAT Credit - GTA service - Inclusion of freight charges in basic price - Held that:- Applicant produced Invoice copy No.S001448, dated 09.08.2011 raised on KSCSC, Ernakulam and in the body of the invoice, it has been mentioned as ‘Total assessable value including transport charges’. The Adjudicating authority also examined the Purchase Order No.9991, dated 19.07.2011 produced by the assessee, which includes the basic price [excluding VAT per quintal]. The Board Circular stipulates that the freight charges were an integral part of the price of the goods. The Adjudicating authority rejected the contention of the applicant on the ground that they have not produced the Tender copy. Prima facie, we find from the invoice and purchase order that the freight was included in the value. The applicant has made out a strong prima facie case for waiver of the pre-deposit of entire amount. Accordingly, pre-deposit of duty along with interest is waived till disposal of the appeal. - Stay granted.

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• 2015 (3) TMI 338 - CESTAT NEW DELHI
  

  Denial of CENVAT Credit - GTA Service - Place of buyer - Place of removal - Held that:- Commissioner (Appeal) relied on Board Circular No.97/8/07-ST dated 23.08.2007 dealing with the claim of Cenvat credit on GTA service availed by the assessee in respect of delivery of the goods with the condition of FOR destination. Upon examination of certain conditions, he came to the conclusion that the goods were delivered at the place of buyer carrying ownership of the goods with the manufacturer till the place of the buyer. Thus, the goods were removed at the place of buyer, not elsewhere. To this conclusion, there is no rebuttable evidence brought out by the Revenue in its appeal - when the property of goods was all along lying with the assessee and that was divested only at the place of buyer, it cannot be said that place of removal was other than the place of the buyer, where delivery of the goods occurred. In such a situation the Circular binds the Department to allow the appropriate Cenvat credit. - Decided against Revenue.

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• 2015 (3) TMI 337 - CESTAT CHENNAI
  

  Waiver of pre deposit - Denial of CENVAT credit - name and address of their marketing office is not included in the ISD registration certificate at the time of filing for registration - Held that:- Prima facie, the issue relates to availment of credit based on the distribution of credit by the ISD distributor. Considering the decision of the Hon’ble High Court of Karnataka (2014 (5) TMI 640 - Karnataka High Court) and the decision of the Tribunal, prima facie, the case merits waiver of predeposit. Accordingly, I grant waiver of predeposit of dues and stay its recovery during the pendency of the appeal - Stay granted.

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• 2015 (3) TMI 336 - CESTAT BANGALORE
  

  CENVAT Credit - garden maintenance, outdoor catering service and maintenance and repair of factory - Held that:- garden is maintained as per statutory requirement of the Government of Karnataka; State Pollution Control Board has directed them to maintain the garden on 23/12/2010 and the water coming out of effluent water treatment plant was required to use for gardening purposes is correct. I also find that as submitted by the learned counsel, the claim for CENVAT credit is supported by the decision in the case of Brakes India Ltd. [2010 (1) TMI 301 - CESTAT, BANGALORE].

  As regards outdoor catering service, the learned counsel submits that providing food to the employees was a statutory obligation and therefore the same is admissible and reliance on the decision in the case of Suzuki Powertrain India Ltd. [2010 (4) TMI 742 - CESTAT, NEW DELHI] is also appropriate.

  As regards maintenance service, the case of the appellant is that the services were used in relation to maintenance and repair of factory and office related to factory. She produced one of the invoices and ongoing through the invoice, I find that the claim of the learned counsel is correct. In view of the above, the appellant is able to make out a case on merits for eligibility of CENVAT credit - Decided in favour of assesse.

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• 2015 (3) TMI 335 - CESTAT KOLKATA
  

  Waiver of pre-deposit of duty - Removal of finished goods viz. Alluminium wires from their factory without payment of duty, against various kachha challans - Applicant had disputed that the quantity reflected in the kachha challans were raw material received by them from respective raw material suppliers, for the purpose of job-work which they carried out in their premises - Held that:- issues rest on evidences adduced by both sides. Also, at this stage we find that the earlier statements of the witnesses relied in the show cause notice, on cross-examination, did not conform to the earlier statements. However, also the statements of late Mr. Om Prakash Saraf and Debabrata Das are on record, whose retraction whether valid or otherwise needs to be scrutinized and examined. In these circumstances, considering the financial hardship expressed by the applicant at this stage, the offer made by the Sr. Advocate seems to be reasonable. Consequently, we direct the applicant to deposit ₹ 10.00 Lakh within eight weeks from today and on deposit of the said amount, the balance dues adjudged against M/s. Saraf Metal Works and total dues against Ms. Sumitra Saraf adjudged is waived and its recovery stayed during the pendency of the appeal. - Partial stay granted.

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• 2015 (3) TMI 334 - CESTAT NEW DELHI
  

  Condonation of delay - Receipt of order by Manager - Assessee contends that impugned order was also sent to the Manager of the appellant company and he is not disputing the receipt or non-receipt of the same and as such is presumed to have been received the same. If that be so, there is reasonable presumption that appellant must have received the impugned order. As such he prays that inasmuch as there is huge delay, the appeal could not be maintained. - Held that:- High Court in the case of Amidev Agro Care Pvt. Ltd. vs. Union of India reported in [2012 (6) TMI 304 - BOMBAY HIGH COURT] has held that sending of order by speed post is not sufficient compliance to the provisions of Section 33 C(1)(a) of CEA, 1944 and the order is required to be sent by registered A.D. post. Admittedly, in the present case, the order was sent by Revenue by speed post and there is no conclusive evidence on record to show that the same stands received by the assessee. In such arena of dispute on receipt of impugned order, the ratio laid down by the Hon'ble Bombay High Court would apply. As such, we accept the appellant's contention that he came to know about passing of the order only when the Revenue approached them for recovery under the cover of their letter dated 28.3.2012. Thereafter, the appellant immediately procured the order and filed the appeal within time. - there is no mala fide on the part of the assessee, not to file appeal within time - Delay condoned.

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