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Central Excise - Case Laws
Showing 141 to 160 of 317 Records
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2016 (8) TMI 755 - GAUHATI HIGH COURT
Condonation of delay - 84 days - Erroneous refund - Held that:- no one appeared on behalf of appellant, therefore, in the interest of justice, the Tribunal ought to have condoned the delay by imposing cost for the lapse on the part of appellant. Accordingly the impugned order passed by the Tribunal is set aside and the delay in filing the appeal is condoned, but on payment of cost of ₹ 2000/-. - Decided in favour of appellant
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2016 (8) TMI 754 - RAJASTHAN HIGH COURT
Cenvat credit - wrongly availed in contravention of Rule 3(4) of the Central Credit Rules, 2004 - assessee is said to have purchased Copper Wire in the invoices, manufacturer is shown as M/s Navneet Yarn Pvt. Ltd. and the description of the goods is shown as Copper Wire which is 99% of purity and admittedly it has been found during investigation that M/s Navneet Yarn Pvt. Ltd. is not at all a manufacturer of Copper Wire rather has been found to be a manufacturer of entirely different product namely; texturing of Polyster Yarn.
Held that:- When M/s Navneet Yarn Pvt. Ltd. from whom M/s. V.K. Enterprises purchased the goods and in turn sold to the assessee has been admittedly found to be a manufacturer of Polyster Yarn, an entirely different product and which has been proved on record by the Revenue on the basis of the investigations carried out and confronted the same to the appellant, in our view, all these are finding of fact based on the material on record found by all the three authorities who in unison have come to the conclusion that the Cenvat Credit was wrongly taken. Even if the seller is a registered dealer under Central Excise and an assessee under Sales Tax Laws, Income Tax Laws and other statutory laws and payment is by cheque, in our view, will not make any difference as long as on investigation it revealed that the goods purchased were not proved to the hilt and Revenue has made out a clear cut case of irregular availment of Cenvat Credit. Therefore, we find no infirmity or perversity in the order of the Tribunal so as to call for interference. - Decided against the appellant
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2016 (8) TMI 753 - CESTAT BANGALORE
Cenvat credit - emergence of saw dust and wood waste / scrap while manufacturing of wooden furniture - appellant submitted that the saw dust, waste and scrap of wood are not manufactured goods and they arise in the course of manufacture of dutiable final products and, therefore, Rule 6 of the Cenvat Credit Rules, 2004 are not applicable to waste products - Held that:- this issue is no longer res-integra and has been decided in favour of the appellant in a series of the judgments delivered by various judicial fora. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 752 - CESTAT BANGALORE
Cenvat credit - ineligible credit taken wrongly - took Cenvat credit on basic customs duty, CVD, cess on textile and education cess instead of taking only on the countervailing duty and education cess as per law - appellant reversed the credit amount alongwith interest on being pointed out by the audit before issuance of SCN - Held that:- the issue is no more res integra in view of the judgment of the Hon’ble Karnataka High Court in the case of CCE, ST, LTU Bangalore Vs. Bill Forge Pvt. Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT] and the decision of the Larger Bench in the case of JK Tyres & Industries Ltd. Vs. ACCE. It is a fact that the appellant has reversed the credit before utilization of the same and a small portion of the cenvat credit was utilized but the same was reversed along with interest before the issue of show-cause notice and in view of the judgment of this Tribunal in the case of Kumar Organics Product Ltd. Vs. CCE, Bangalore [2014 (12) TMI 273 - CESTAT BANGALORE], the appellant is not liable to pay interest as well as penalty. Therefore, by following the ratio of decisions cited supra, impugned order is not sustainable in law. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 751 - CESTAT BANGALORE
Whether the appellant is liable to reverse cenvat credit on capital goods when the capital goods are removed after being used for a period of about one year also - Held that:- the capital goods was imported on 14.03.2006 and was used for a year and then cleared on 10.04.2007 without payment of duty under the belief that there was no provision in the Cenvat Credit Rules 2004 to pay cenvat either in full or depreciated amount of cenvat during the relevant period. By respectfully following the ratio of the Karnataka High Court, in the case of CCE, Bangalore II Vs. Solectron Centum Electronics Ltd. [2014 (10) TMI 596 - KARNATAKA HIGH COURT], prior to amendment effected on 13.11.2007, the assessee is liable to pay duty on removal of used capital goods. Therefore, the impugned order do not sustain and is set aside.
Invokation of extended period of limitation - Held that:- the ratios of the judgments states that when there are conflicting decisions of the Tribunal and also of the High Courts on a particular issue, the extended period is not invocable. Therefore following the ratio in the above cited judgments, I hold that the show-cause notice in this particular case is beyond limitation and the demand is time-barred. - Decided in favour of appellant
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2016 (8) TMI 750 - CESTAT BANGALORE
Cenvat credit - 100% EOU clears the goods to the appellant on payment of duty in terms of Notification No. 23/2003-CE dated 31.03.2003 - appellant availed credit of duties paid by the 100% EOU - Held that:- the issue whether the appellant is entitled to avail credit of the education cess and special additional duty is settled in favour of the appellant by the decisions of this Tribunal in the case of Emcure Pharmaceuticals Ltd. V. CCE, Pune [2008 (1) TMI 147 - CESTAT, MUMBAI] wherein the Tribunal allowed the appeal of the assessee by holding that the respondent can avail the cenvat credit of education cess of the goods supplied to them by 100% EOU and the restriction imposed under Rule 3(7)(a) is not applicable. Similar view is fortified by the decision of the Tribunal in the case of Shreya Pets Pvt. Ltd. Vs. CCE, Hyderabad IV reported in [2008 (9) TMI 351 - CESTAT, Bangalore] wherein the Tribunal by following the decision of Emcure Pharmaceuticals (supra) has held that the assessee is entitled to avail 100% credit of education cess on the goods supplied to them by a 100% EOU. The decision in the case of Emcure Pharmaceuticals was also followed by the Tribunal in the case of CCE, Daman Vs. PVN Fabrics [2012 (10) TMI 870 - CESTAT, AHMEDABAD] as also in the case of Jai Corporation Ltd. Vs. CCE, Vapi [2014 (11) TMI 706 - CESTAT AHMEDABAD].
Further it is found that on identical issue for the earlier period, in the appellant's own case, this Tribunal allowed the appeal relying on the decisions of the Tribunal cited supra. Therefore, by following the precedent in the above cases, the impugned order is set aside. - Decided in favour of appellant
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2016 (8) TMI 749 - CESTAT KOLKATA
Modvat credit - inputs used in the manufacture of their finished goods - no documents were supplied to the Appellant as directed by this Bench - Revenue contended that relied upon documents were given to the Appellant along with the show cause notice, therefore, no need of supplying the same to the Appellant again - Held that:- if Order dated 10.07.1998 passed by this Bench was not acceptable to the Revenue then the same could have been appealed against. Adjudicating authority was not correct in making his observations in Order-in-Original dated 30.12.2013, after more than fifteen years of the Order dated 10.07.1998 passed by this Bench, that the relied upon documents need not be provided again to the Appellant in spite of specific order passed by this Bench. Therefore, in the absence of supply of the documents, appeal filed by the Appellant is required to be allowed for not complying with the Order dated 10.07.1998 and for not fulfilling the principles of natural justice. - Decided in favour of appellant
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2016 (8) TMI 748 - CESTAT KOLKATA
Invokation of extended period of limitation - Section 11A(1) of the Central Excise Act 1944 - Clandestine removal of goods - availed area based exemption vide Notification No.32/99 dated 08.07.1999 granting 100% duty exemption - Held that:- the charges of clandestine removal are serious charges and in the absence of any evidence of removal/seizure of finished goods, it cannot be held a justifiable ground for confirmation of the act of clandestine production and removal. We also find that there was no proper stock taking and there is no evidence showing the manufacture of the goods and their clearances without payment of duty. Clandestine removal being a positive act, the burden of proving the same is on the Revenue and cannot be discharged on the basis of conjectures and assumptions. The appellant is also the beneficiary of the North East exemption vide Notification No.32/99-CE and it defies logic as to why appellant will indulge in clandestine manufacture and removal when they are entitled to cash refund of the duty paid through PLA.
There is nothing on record to indicate that the appellant assessee had infact manufactured the final products out of the inputs on the basis of input-output ratio. As such, in the light of various decisions relied upon by the appellant, and in the absence of any concrete evidence of clandestine manufacture/removal of the goods, the impugned order is not sustainable. - Decided in favour of appellant
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2016 (8) TMI 747 - CESTAT NEW DELHI
Cross utilization of credit wrongly - AED(ST) alongwith interest and penalty - appellant received semi finished fabrics from its sister unit under cover of invoices - duty paid was shown to be 16% basic excise duty but the appellant on its own apportioned it in two parts and 50% was taken as credit under basic excise duty and the remaining 50% was taken as credit under AED (ST) in terms of Notification No. 17/2000-CE dated 01.03.2000.
Held that:- it is a fact that the notification was issued on 01.03.2000 and prescribed an aggregate duty of 16% ad valorem and possibly for that reason the invoices issued in the month of March 2000 itself showed the aggregate duty of 16% ad valorem and were stamped with stamp showing apportionment as per the said notification. It has to be taken into consideration that the Notification was issued on 01.03.2000 and was being applied immediately thereafter in the same month when it may still have been in the process of being figured out as to how be depict the aggregate duty @ 16% ad valorem in the excise invoices.
One also cannot lose sight of the fact that the appellant did not stand to gain in any way whatsoever by doing such apportionment because it was not as if the BED credit would have lapsed if the entire duty shown in the invoices was taken as BED Credit because it was paying BED in cash to the tune of Crores of rupees after utilizing cenvat credit. Thus, it is not a case where the appellant could have gained any advantage whatsoever by apportioning the duty equally between BED & AED(ST) for taking cenvat credit. In any case, the action of the appellant was in conformity with the legal requirement prescribed under Notification 17/2000-CE. Once credit under AED(ST) of 50% of the duty shown in the invoices is upheld, the demand does not survive and as a consequence nor would interest and penalties. - Decided in favour of appellant*--
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2016 (8) TMI 746 - CESTAT NEW DELHI
Interest liability for differential Central Excise duty without issuance of show cause notice - Rule 7(4) of the Central Excise Rules, 2002 - supply of pre-stressed railway sleepers to Indian railways at the Provisional Price, which was finalised subsequently - Held that:- Sub-rule (4) of Rule 7 mandates that the assessee shall be liable to pay interest on any amount payable, consequent upon passing of order of final assessment sub-rule (3) of the said rule. Thus, it is apparent that the interest liability is automatic, if the differential duty, as a result of finalisation of assessment, is paid subsequently. Further Rule 7 of the Central Excise Rules, 2002, no where specifies that for payment of interest, show cause notice has to be issued by the Department. Hence, there is no requirement of issuance of any specific show cause notice for recovery of the interest amount. In the present case since the adjudication order has clearly provided that the interest is required to be paid in terms of Rule 7(4) of the rules, we do not find any infirmity in the said order and also in the impugned order passed by ld. Commissioner (Appeals). - Decided against the appellant
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2016 (8) TMI 708 - SUPREME COURT
Valuation - captive consumption of goods - whether Rule 6(b)(ii) as per appellant or Rule 6(b)(i) as per Revenue of the Central Excise (Valuation) Rules, 1975 would be applicable - period in question is October, 1997, to June, 2000 - Held that:- the Revenue took into consideration sales made by the assessee to its customer and passed orders on that basis. However, it transpires that sale of goods to the said Goan company by the assessee was only up to June, 1997. Thereafter, no supplies were made and, therefore, for the period in question, the price on which the sales were made to Goan company could not have been the basis. The Tribunal, on the other hand, found that during this period, there was a solitary sale transaction which was at ₹ 100 per k.g. in December, 1997. In these circumstances, since that was the only comparable price available with the Tribunal, we find nothing wrong in adopting that solitary sale as the basis for arriving at the valuation for the period in question as well. - Decided against the appellant
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2016 (8) TMI 707 - SC ORDER
Liquidation of company - company do not have any money for payment - respondent submitted that even if this appeal is allowed and the Excise Department is held entitled to recover the amount, it would not be in a position to recover any amount - Apex Court for the aforesaid reason dismissed the appeal without going into the merits of the case.
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2016 (8) TMI 706 - SUPREME COURT
Enlargement of scope of remand - entitlement of appellant to claim exemption even under Clause (e) of Notification dated 10.09.2004 - Held that:- we see no reason to decline that limited prayer and dispose of the appeal enlarging the scope of remand. We accordingly allow this appeal but only in part and to the extent that while the Tribunal shall examine whether the appellant is entitled to exemption in terms of Clause (d) of the notification mentioned above, it shall not be prevented from examining the applicability of Clause (e) relied upon by the appellant nor shall the impugned order prevent the appellant from claiming exemption in terms of clause (e) of the notification. - Apex Court allowed the appeal
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2016 (8) TMI 705 - BOMBAY HIGH COURT
Validity of settlement order - petitioner cleared the finished goods from the factory with cover of statutory invoice and without payment of duty - failed to maintain proper accounts of finished goods manufactured and cleared from its factory premises - petitioners have paid duty as demanded in the show cause notice i.e. more than amount which has been settled by the Settlement Commissioner.
Held that:- Settlement Commissioner had conducted enquiry on 02-12-2014 and, thereafter, granted ten days more time to make further submissions, if any. Perusal of impugned order, it is manifest that revenue subsequently relied on letters dated 08-12-2014, 13-12-2014, 27-01-2015 and 05-02-2015. These letters were much subsequent to the date of hearing conducted by Settlement Commissioner. The copies of said letters/documents were also never provided to the petitioners. The petitioners had filed specific application seeking documents. Provisions of Section 32-J of the Excise Act clearly entitles the applicant to provide certified copies of any such report or part thereof.
Considering the above, the said letters appear to have been read while passing the impugned order without giving copies of the same to the petitioners and also without bringing it to the knowledge of petitioners. Such an order is certainly not in consonance with the cardinal principles of natural justice, also considering the fact that petitioners have paid duty as demanded, we are inclined to exercise our discretion. Therefor, the impugned order is quashed and set aside. The Settlement Commissioner shall decide said proceedings afresh after giving opportunity to the petitioners to put forth their case so also furnish certified copies of the relevant letters/documents to the petitioners. - Petition disposed of
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2016 (8) TMI 704 - MADRAS HIGH COURT
Demand - manufacture of Rubber lined Steel Tanks/Pipes - Section 2(f) of the Central Excise Act, 1944 - Held that:- in the Assessee's own case the Tribunal held that the very same process was not manufacturing. The said order passed by the Tribunal has become final. Subsequently, in another appeal came up for consideration before the CESTAT in Final Order No.692 of 2005 dated 28.04.2005, in which the Tribunal after taking into consideration the decision of the Hon'ble Supreme Court in Tega India Ltd., Vs. Commissioner of Central Excise, Calcutta-II [2004 (2) TMI 61 - SUPREME COURT OF INDIA], and the earlier order passed by the CESTAT, held that the issue is already covered by the decision of the Tribunal and the Hon'ble Supreme Court and there is no manufacture involved in the present case. - Decided in favour of assessee
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2016 (8) TMI 703 - BOMBAY HIGH COURT
Demand of duty, interest and penalty - export of goods without payment of duty under letter of undertaking - failure to submit a proof of export within a period of six months - Held that:- the authorities, after undertaking the process of adjudication under Section 11AF of the Central Excise Act, imposed penalty as the petitioners failed to pay the interest also. It is disclosed that CENVAT credit is taken by the petitioners after furnishing the proof of export. There is no dispute between the parties that the duty has been debited correctly and the authenticity of the export is established and proof of export has been accepted by the Department. No provision is pointed out which lays down the consequences of imposition of penalty and interest on non submission of proof of export. - Decided in favour of appellant
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2016 (8) TMI 702 - MADRAS HIGH COURT
Condonation of delay - 190 days - Order in Original was received by Mr.P.Babu, who is an employee of M/s.Hometech Services P. Ltd and Mr.P.Babu misplaced the Order in December 2012. No one was in the company to guide the management to file an appeal - Held that:- it is true that the appellant ought have been more vigilant. The fault of the employee cannot be a reason normally for the condonation of the delay. But, considering the fact, according to the appellant, that the business is already closed, we are of the view that the some leniency can be shown. - Appeal allowed
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2016 (8) TMI 701 - KERALA HIGH COURT
Dismissal of restoration application by the CESTAT - non-compliance with the directions contained in the stay order - Held that:- the appellant had not taken due steps to prosecute the appeal after it was dismissed for default, such situation was also during the period while the company was before the BIFR. As of now, the company has been given a revival package as approved by BIFR. This means that every little opportunity and support that could be extended to the company to make it revive have to be permitted to flow through whatever system that it can take in. We, therefore, are of the view that the learned Tribunal, on the totality of the facts and circumstances of the case, ought to have considered the case as one where imposition of costs would have been sufficient to grant restoration of the appeal to file, particularly when the condition imposed, that is to say, deposit of ₹ 10,00,000/- was also complied with. - Decided in favour of appellant
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2016 (8) TMI 700 - GUJARAT HIGH COURT
Refund of rebate - in the form of cash rather than reversal of Cenvat credit - Petitioner unit has discontinued its manufacturing activity and that therefore, the Cenvat credit is of no further use - Held that:- the petitioner had not made any detailed submissions bringing it to the notice of the authorities special grounds why as an exception to the normal rule of refund of rebate in form of reversal of Cenvat credit, the same should be paid in cash. Had the petitioner built case of delay on part of the Department in deciding the rebate application, due to which in the meantime, the petitioner unit having closed down, the cash refund was justified, we would have examined the case further on light of the submissions of the Counsel for the petitioner that Rule 5B of the Cenvat Credit Rules, 2004, though does not specifically provide for it, also does not prohibit it. Decided against the petitioner
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2016 (8) TMI 699 - CESTAT NEW DELHI
Cenvat credit - service tax paid on rent-a-cab service - rent-a-cab service are employed for logistical purposes of employees of the factory of the assessee - period in dispute is January 2011 to June 2012 - Held that:- as regards the cenvat credit for the period January 2011 to 31.3.2011, it is found that the issue is fairly settled in favour of the appellant in the case of Kakinada Seaports Ltd. v. C.C.E. & ST & Cus., Visakhapatnam II - [2015 (11) TMI 51 - CESTAT BANGALORE] which stands confirmed by Hon’ble Karanataka High Court in the case of C.C.E., Bangalore v. Stanzen Toyotetsu india (P) Ltd. - [2011 (4) TMI 201 - KARNATAKA HIGH COURT ]; John Deere India Pvt. Ltd. v. C.C.E., Pune III - [2015 (9) TMI 261 - CESTAT MUMBAI]. Therefore, the cenvat credit availed on service tax paid for the period January 2011 to 31.3.2011 is eligible to be availed as cenvat credit.
As regards the cenvat credit on the service tax paid on the rent-a-cab for the period from 1.1.2011 it is found that the provisions of Rule 2(l)(B) of Cenvat Credit Rules , 2004, excludes the category of rent-a-cab for availment of cenvat credit. Therefore, in view of an unambiguous provisions,it is found that the appellant is not eligible to avail cenvat credit for the period subsequent to 1.4.2011. The said amount is to be recovered from the appellant along with interest.
Imposition of penalty - Held that:- it is found that the said penalty is upheld has not reversed the cenvat credit which he has improperly availed; as the provisions of Rule 2(l) were effective from 1.4.2001 and they should not have availed the cenvat credit of the service tax paid on the rent-a-cab service. - Appeal disposed of
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