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Central Excise - Case Laws
Showing 141 to 160 of 412 Records
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2017 (9) TMI 1184 - MADRAS HIGH COURT
Demand - Imposition of penalty - Compounded Levy Scheme - CTD bars, falling under Chapter heading 72 of the Central Excise Tariff Act, 1985 - Held that: - similar issue decided in the case of The Commissioner of Central Excise, Chennai-II, Chennai Versus M/s. Arun Vyapar Udyog Ltd. [2016 (11) TMI 191 - MADRAS HIGH COURT], where it was held that Penalty, as such, cannot be imposed, in the light of the decision of the Hon'ble Supreme Court in Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise[2015 (11) TMI 1172 - SUPREME COURT], wherein, the issue, which came up for consideration before the Hon'ble Supreme Court, was to the correctness of the judgments of High Courts, which struck down Rules 96ZO, 96 ZP and 96 ZQ of the Central Excise Rules, 1994, relating to penalty, as ultra vires of a parent Act and violative of Articles 14 and 19(1)(g) of the Constitution of India - appeal dismissed.
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2017 (9) TMI 1183 - CESTAT CHANDIGARH
Clearance of Waste and Scrap - Rule 57-S(2)(c) - scrap and waste has arisen out of the cenvatable capital goods - Held that: - The demand stands confirmed by Commissioner (Appeals), in terms of the provisions of Rule 57-S (2) (c), It is noted that such provision was deleted from the statute with effect from 01.04.2000. As such, as rightly contended by the ld. advocate, the demand for the period post 01.04.2000 cannot be confirmed.
As, for the period prior to 01.04.2000, by appreciating the nature of the waste and scrap, as detailed in the annexure to the show cause notice, we note that the same is not scrap of capital goods. The provisions of Rule 57S (2)(c) get invoked only when the capital goods themselves are removed as waste and scrap and does not govern the waste and scrap arisen during the course of maintenance, replacement or repair of the capital goods. As such, in our views, the Commissioner (Appeals) has proceeded on wrong footing.
Appeal restored to Order-in-Original - matter on remand.
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2017 (9) TMI 1182 - CESTAT ALLAHABAD
Clandestine removal - waste - wastage/loss of molasses - Rule 21 Central Excise Rules, 2002 - principles of natural justice - Held that: - the Show Cause Notice have been issued under the misconception i.e. removal of excisable goods without payment of duty, whereas in fact the appellant had marked in the return, as wastage. As the OIO was passed ex-parte, the appellant did not have opportunity to lead evidence in order to satisfy the storage/natural/pilferage loss.
The loss as claimed by the appellant is stated to be less than 2% of the total quantity of molasses handled by them during the said sugar season. Taking notice of the facts and the circulars of the CBEC as well as the State Authorities under the relevant state laws, wherein a shortage up to 2% in the case of molasses is considered normal, it is fit and proper to allow this appeal by way of remand to the learned Commissioner to re-examine the matter of loss - Appeal allowed by way of remand.
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2017 (9) TMI 1181 - CESTAT CHANDIGARH
Clandestine removal - fake invoices without supplying the goods - Held that: - the proceedings in relation to SCN by DGCEI against M/s Jwala Steel Corporation (JSC) are still pending for adjudication. Since the proceedings against M/s. Jawala Steel Corporation, purported supplier of the goods and issuer of fake invoices, against whom allegations of clandestine removal of goods are pending adjudication, the proceedings cannot be initiated against the appellant who issued Cenvatable invoices on strength of invoices of M/s JSC - matter remanded back to the adjudicating authority to adjudicate the case subsequent to the adjudication in the matter of M/s. Jawala Steel Corporation - appeal allowed by way of remand.
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2017 (9) TMI 1180 - CESTAT CHENNAI
Clandestine removal - specific plastic compounds known as "fillers" - Revenue entertained a view that non-duty paid "fillers" were supplied by the present appellant M/s. Premium Poly Links and the entries made in the ledger under the name of M/s. Premium Poly Links relates to the present appellant - Held that: - the Revenue's case is solely based upon the ledger recovered from KPI's premises. Admittedly, the appellant is supplying "fillers" to M/s. KPI. However, the said ledger is captioned as "Premium Poly Links", whereas, the appellant's name is "Premium Poly Alloys". Not only that, the entries in the said ledger describes the goods as C40, T10, C Bages or T Bags, whereas, the goods are being described by appellant in various invoices as "Premium Fab 715", "PS 503" etc.
It is well settled law that the allegation of clandestine removal are required to BE supported by production of sufficient evidences to establish the clandestine manufacture and clearance. Admittedly, no such evidence stand produced, Further, during the visit of the officers in the appellant's factory neither any unaccounted raw material nor final product was found nor any incriminating documents recovered. No doubt, that Revenue is not expected to prove its case by mathematical precision by establishing and proving each and every link but some evidence indicating such clandestine activities is required to be adduced by them. Demands cannot be confirmed on the basis of entries made in the records of third person.
The confirmation of demand of duty on the company cannot be upheld. For the same reasons, penalty imposed upon the appellant as well as upon the General Manager is required to be set aside - Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1179 - CESTAT CHENNAI
Clandestine removal - SSI exemption - N/N. 9/2003 dated 01.03.2003 - Held that: - the appellant had followed a modus operandi of issuing double set of invoices for clearing the goods without discharge of duty liability even after reaching the exemption limit of one crore - It is not the case where on account of imposition of duty liability on otherwise exempted product, viz., corrugated boxes, the appellant had been in some confusion with respect to duty liability and for which reason the present differential duty liability has arisen - The aspect of extending cenvat credit benefit was considered and rejected with cogent reasons by the authorities below - appeal dismissed - decided against appellant.
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2017 (9) TMI 1178 - CESTAT CHENNAI
Valuation - unprocessed cotton fabrics, cleared to sister unit - Rule 8 of Central Excise (Valuation) Rules, 2000 - revenue neutral situation - Held that: - the goods are cleared to the sister unit and the appellant is eligible for credit on the duty paid, the entire exercise is a revenue neutral situation - This being the case, even if the appellant is directed to pay duty, other sister unit would be eligible for the credit.
In the case of Jay Yuhshin Ltd. [2000 (7) TMI 105 - CEGAT, COURT NO. I, NEW DELHI], in a similar situation, the Larger Bench of the Tribunal has held that when there is revenue neutrality, the demand of duty is unsustainable.
Demand set aside - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1177 - CESTAT CHENNAI
Valuation - abatement - Discount to wholesalers for damages suffered during transit - department entertained a view that such discount on account of damages to goods cannot be deducted from the assessable value - Held that: - since the discounts have been disclosed in the price list, they are deemed to be known to the trade/wholesale buyer prior to the removal of goods - Merely because the appellants did not produce any written agreement, it cannot be said that the trade discount is not known to the buyer at the time of removal of goods. Such discounts are usually given under mutual understanding between parties - appellants are eligible for deduction of trade discount for damaged goods - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1176 - CESTAT CHENNAI
Classification of goods - Herbal Sheekakai Powder and Herbal Reetha Powder - classified under CTH 3003.39 of CETA, 1985 as an ayurvedic proprietary medicine attracting duty of 10% or under CTH 3305.90 as cosmetic preparations? - Held that: - there is no evidence put forward by the respondent that the impugned products are sold in the market as medicines. Further, it is also seen that the said products are advertised in TV as well as other media as preparations used on the hair and also understood by public as toiletry requisite only - further, the product does not have any property of curing disease.
The Supreme Court in the recent judgment in the case of Commissioner of Central Excise, Mumbai Vs. CIENS Laboratories, Mumbai [2013 (8) TMI 467 - SUPREME COURT] has held that for an ayurvedic medicine to be classified under Chapter 30 has to pass the test whether it is for cure of any disease. If the same is only meant for care, then such product would not fall under medicament.
Products to fall under CTH 3305.90 - Appeal allowed - decided in favor of Revenue.
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2017 (9) TMI 1175 - CESTAT CHENNAI
N/N. 89/95-CE dated 16.5.1995 - clearance of scrap without payment of duty - Department entertained a view that the scrap cleared without payment of duty under N/N. 89/95 is not eligible for the respondent for the reason that the said notification grants exemption to the scrap only when such scrap arises during the course of manufacture or exempted goods - Held that: - since the manufactured goods are exempted goods, the benefit of Notification No.89 of 1995 dated 18.5.1995 would be applicable - appeal dismissed - decided against Revenue.
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2017 (9) TMI 1174 - CESTAT CHENNAI
Valuation - washing machine - includibility - extended warranty service charges - Held that: - the respondents have been able to establish that the three year extended warranty period is only optional service contract with the customer and not a compulsory one. This being so, the same is not includible in the assessable value - the duty demand is less than ₹ 10 lakhs. Therefore, the appeal is not maintainable on monetary limits also - appeal dismissed - decided against Revenue.
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2017 (9) TMI 1173 - CESTAT CHENNAI
Valuation - whether the assessable value is to be calculated as done by the appellants (unit at Pondicherry) or at the higher rate cleared by the Pallavaram Unit as spares? - Held that: - the show cause notice is issued against Pondicherry unit and not against the Pallavaram unit. Moreover, the alleged sales at Pallavaram is admittedly only 2% of the clearances made from Pondicherry unit and the balance 98% is captively consumed. The case of department is that for this balance 98% also the price of the sale of 2% should be adopted which in our opinion does not make any sense - the submission of the Appellant that the Pallavaram Unit while captively consuming in production 98% of the pumps supplied by the Appellant had sold the impugned items as replacement spares meet certain emergency requirements and had paid duty in respect of such removals on their selling price should have been positively taken into consideration by the Learned Adjudicating Authority, which has not been done - appeal dismissed - decided against Revenue.
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2017 (9) TMI 1172 - CESTAT CHANDIGARH
Demand of interest - suo moto payment of differential duty - case of Revenue is that since it was a case of delayed payment of the duty, the interest was payable by the appellant - extended period of limitation - Held that: - the Department has issued a SCN dt. 13.08.2010 for interest on the differential duty paid voluntarily by the appellant on their own. Differential duty was paid on 10.07.2007. The SCN has been issued beyond the period of limitation. However, the extended period has not been invoked in the SCN nor is there any allegation in that regard. In the SCN, penalty has also been proposed but again there is no basis given for imposition of penalty in the SCN.
Hon’ble High Court of Delhi in the case of Kwality Ice Cream Company Vs. UOI [2012 (1) TMI 88 - Delhi High Court] that the period of limitation that applies to a claim for the principal amount should also apply to the claim of interest thereon.
In this case too, the extended period has not been invoked in the SCN and the entire demand is beyond the period of limitation - demand of interest not sustainable - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1118 - CESTAT NEW DELHI
Clandestine removal of goods - evidences - Held that: - the kachha parchies recovered from Sh. Maurya are not reliable evidence produced by the Revenue. Therefore, the demand against the appellant on account of clandestine removal of goods is not sustainable in the absence of any corroborative evidence to support in the absence of excess production, excess receipt of raw material, production capacity and transportation of goods - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1117 - CESTAT NEW DELHI
Reduction of penalty imposed under Rule 15 of Cenvat Credit Rules, 2004 - CENVAT credit on inputs denied - Held that: - the maximum penalty can be imposed equivalent to the duty but minimum penalty is discretion of the adjudicating authority - In the facts and circumstances of this case, the penalty imposed on the appellant equivalent to duty is on higher side - penalty reduced to ₹ 50,000/- - appeal allowed - decided n favor of appellant.
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2017 (9) TMI 1116 - CESTAT NEW DELHI
Reversal of CENVAT credit - capital goods destroyed in fire - Rule 3(5) of Cenvat Credit Rules - Held that: - if capital goods or inputs have been removed as such, then the only option is that assessee is required to reversed the Cenvat credit availed on these goods.
If capital goods are put in use, in that case, provision of Rule 3(5) of Cenvat Credit Rules, 2004 are not applicable - Admittedly, in the case in hand, capital goods were in use by the appellant and after use have been destroyed in fire.
CENVAT credit not required to be reversed - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1115 - CESTAT KOLKATA
Classification of goods - ready mix concrete - whether such goods manufactured at the site may be called as Concrete Mix, which is exempted under N/N. 04/97-CE dated 01.03.1997 or will be classifiable under Ready Mix Concrete under Central Excise Tariff Sub-heading No.38245010, which will attract Central Excise duty? - Held that: - the goods in question will need to be determined either as ready mix concrete or concrete mix on the basis whether the same has been especially made with precision and of high standard and as per the particular needs to the customer and delivery to the customer at his site. To facilitate such determination, we set aside the impugned order and remand the matter to the original authority for such re-determination - If after such re-consideration, refund arises, the same can be paid subject to unjust enrichment - appeal allowed by way of remand.
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2017 (9) TMI 1114 - CESTAT KOLKATA
Refund claim - time limitation - Service of notice - Notice sent by the Tribunal, presumably has been served as it has not been returned - Held that: - identical issue has come in the case of Vernerpur Tea Estate Vs. Commr. of Central Excise & Service Tax, Shillong [2016 (4) TMI 17 - CESTAT KOLKATA], where it was held that on cumulative reading of various provisions of Notification No. 33/99-CE, we are of the considered opinion that refund claims, filed after more than 5 to 6 years of such duty payment, are clearly time barred - appeal allowed - decided in favor of Revenue.
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2017 (9) TMI 1113 - CESTAT AHMEDABAD
CENVAT credit - capital goods - whether the appellants are eligible to avail CENVAT credit on the duty paid on angles, channels, beams, girders plats, sheets, coils, bars, cements etc. used for fabrication of structures for machinery, factory, roads etc. during the period January 2009 to December, 2009? - Held that: - cement has been utilized for building road and other purposes and therefore, not eligible to credit.
As far as admissibility of CENVAT credit on the duty paid inputs viz. angles, channels, beams etc. used in the fabrication of machinery, in principle, the same is admissible as per the judgment of the Tribunal in the case of Singhal Enterprises Pvt. Ltd. vs. C.Cus. & C. Ex., Raipur [2016 (9) TMI 682 - CESTAT NEW DELHI], where it was held that applying the “User Test” to the facts in hand, we have no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of ‘Capital Goods’ as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat Credit - However, from the record it is not clear the exact quantity of angles, channels, beams etc. that were used in the fabrication of machinery and structure of capital goods, hence to ascertain the said factual position, the matter is remanded to the adjudicating authority for scrutiny of the claim of the Appellant.
Appeal allowed by way of remand.
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2017 (9) TMI 1112 - CESTAT NEW DELHI
Sale of scrap - waste material - wooden scrap/ plastic scrap - oily cotton canvas scrap - SS Steel - MS aluminium scrap - Held that: - the matter is covered by the Tribunal’s decision in the appellant’s own case M/s JB Mangharam Foods Pvt. Ltd. Versus C.C.E. Indore [2017 (1) TMI 283 - CESTAT NEW DELHI] - no duty liability can be sustained in case of waste material, wooden scrap/ plastic scrap oily cotton canvas scrap, the details of which are given in the table annexed with the appellant’s reply to the Show Cause Notice.
In case of the duty liability on SS Steel, MS, aluminium scrap, the matter is remanded to the original adjudicating authority to verify the fact that no Cenvat credit on the machinery or iron and steel removed as scrap were taken by the appellant and thereafter decide the matter afresh after giving opportunity of personal hearing to the appellant.
Appeal allowed in part and part matter on remand.
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