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Central Excise - Case Laws

Showing 161 to 180 of 225 Records

• 2015 (3) TMI 333 - CESTAT CHENNAI
  

  Valuation of goods - non-inclusion of insurance and freight charges and other essential ingredients in the assessable value - Held that:- Commissioner (Appeals) reproduced the Chartered Accountant’s Certificate dated 14.09.2004 and the worksheet details of duty liability. It was prepared on rectification of audited balance sheet. Revenue had not refuted the Chartered Accountant’s Certificate and worksheet with any material in the grounds of appeal. The Ld. AR submitted that the original authority proceeded on the basis of the figures given by the Respondents but the Commissioner (Appeals) proceeded on the basis of the figures given by the Chartered Accountant. We find that the Commissioner (Appeals) findings are on the basis of the figures given by the Chartered Accountant with worksheet, which were not refuted by the Revenue and cannot be discarded without any cogent material. In view of the above discussion, we do not find any reason to interfere with the impugned order - Decided against Revenue.

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• 2015 (3) TMI 298 - CESTAT NEW DELHI
  

  CENVAT Credit - Whether welding electrodes used for repair and maintenance of the plant and machinery are eligible for cenvat credit or not - Held that:- issue stands decided in the appellant’s favour by the judgement of the Chhattisgarh High Court in the case of Ambuja Cements Eastern Ltd. Vs. CCE, Raipur reported in [2010 (4) TMI 429 - CHHAITISGARH HIGH COURT] and also by the judgement of the Hon’ble Rajasthan High Court in the case of Hindustan Zinc Ltd. Vs. Union of India reported in [2008 (7) TMI 55 - HIGH COURT RAJASTHAN]. There is also another judgement of the Hon’ble Karnataka High Court in the case of CCE Vs. Alfred Herbert (I) Ltd. reported in [2010 (4) TMI 424 - KARNATAKA HIGH COURT], wherein also the same view has been taken. In view of this, the impugned order is not sustainable. The same is set aside - Decided in favour of assesse.

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• 2015 (3) TMI 297 - CESTAT NEW DELHI
  

  CENVAT Credit - suppression of facts - house keeping & dry cleaning service, event management service and legal service - Held that:- Regarding event management service, appellants contended that in their own case vide [2015 (1) TMI 294 - CESTAT NEW DELHI] the credit in respect of taxies used for carrying their employees for the function in respect of which the event manager was engaged has been allowed. When credit of service tax paid on taxi service utilised for carrying their employees for the function has been allowed, the credit of service tax in respect of event management service engaged for the same function has to be allowed mutatis mutandis. It has been stated that the function was in relation to business as the outstanding employees working in the factory were honored by way of rewarding and entertaining them to encourage the employees in general for better performance; it was an annual day function which is organized every year. Thus the function does have relation to business of manufacture. The appellants cited the judgment of Karnataka High Court in case of Toyota Kirloskar Motor Ltd. v. CCE, LTU, Bangalore, [2011 (3) TMI 1373 - KARNATAKA HIGH COURT]. In the said judgment Hon’ble High Court of Karnataka has in effect held that organising such a function cannot be separated from business of manufacture of final product. That such credit is allowable is also evident from the Cestat judgment in case of Endurance Technologies Vs. CCE Aurangabad [2013 (8) TMI 601 - CESTAT MUMBAI] which allowed credit in respect of mandap keeper for the annual day function. Thus denial of credit in respect of event management service in this case cannot be sustained.

  As regards mandatory penalty, the adjudicating authority has stated that it is settled principle of law that in taxation matters mens rea is not an essential factor for imposition of penalty and therefore penalty is imposable under Rule 15 of Cenvat Credit Rules read with Section 11AC of Central Excise Act. This observation is obviously untenable because for Section 11AC ibid wilfull mis-statement/suppression has to be brought out and this necessarily involves mens rea. Indeed, the concerned Order-in-Original does not bring out as to how the appellants are guilty of wilfull mis-statement or suppression of facts. Thus the extended period is also not sustainably invokable in the case as a consequence the demand is also hit by time-bar and mandatory penalty also cannot be imposed. - Decided in favour of assesse.

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• 2015 (3) TMI 296 - CESTAT MUMBAI
  

  Levy of duty as per Section 4 or Section 4A - Classification of goods - Held that:- Examiner's report is not in dispute which clearly classified the product as "Other Mastics". Although the product in question is covered under Ch.3214, is "Other Mastics" but "Other Mastics" have been excluded for levy of duty as per Section 4A of Central Excise Act, 1944. Therefore, both the lower authorities have rightly held that the duty on the product is to be leviable as per Section 4 of the Act i.e. on transaction value. - No infirmity in the impugned order and the same is upheld - Decided against Revenue.

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• 2015 (3) TMI 295 - CESTAT MUMBAI
  

  Levy of Central Excise duty on the DTA clearances - Held that:- Section 3 of the Central Excise Act provides that the duties of excise which shall be levied and collected on any excisable goods manufactured by a 100% EOU shall be an amount equal to aggregate of the duties of Customs which would be leviable on like goods produced or manufactured outside India and if imported into India. Therefore, the law is very clear. What is charged on domestic clearances by 100% EOU is duty of excise. In this case the goods namely cut flowers are non-excisable. The judgments cited by the Commissioner support this obvious interpretation of Section 3. Revenue's appeals on the ground that the Notification provides otherwise is not acceptable because a Notification cannot override the basic provision of law for charging duty. Revenue's reference to Cosco Blossoms Pvt. Ltd. (2003 (12) TMI 114 - CESTAT, NEW DELHI) to justify the duty can be demanded on imported inputs is totally mis-placed and uncalled for because what was demanded in the show-cause notice is Central Excise duty. - Decided against Revenue.

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• 2015 (3) TMI 294 - CESTAT MUMBAI
  

  CENVAT Credit - whether courier services, clearing and forwarding services, cargo-movers services and housekeeping services are input services as per the definition of input service vide Rule 2(l) of CENVAT credit Rules, 2004 - Held that:- all the four services in question are input services relating to the manufacturing activity of the appellant. The impugned order is set aside - Following decision of Commissioner of Central Excise Vs. Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT] - Decided in favour of assesse.

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• 2015 (3) TMI 293 - CESTAT MUMBAI
  

  Waiver of pre deposit - Denial of CENVAT Credit - Cenvat Credit balance transferred from the 100% EOU at the time of conversion into DTA unit - Held that:- After conversion of 100% EOU to DTA unit the appellant has transferred capital goods, input, work in progress and finished goods on payment of duty. Therefore, the appellants are entitled to take Cenvat Credit in DTA unit which was lying unutilized with the books of accounts of 100% EOU unit, which has been allowed by the Hon'ble Madras High Court in the case of CESTAT (2008 (7) TMI 116 - HIGH COURT MADRAS). In these terms, we set aside the impugned order and allow the appeal with consequential relief if any - Decided in favour of assesse.

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• 2015 (3) TMI 292 - CESTAT CHENNAI
  

  Waiver of pre deposit - Demand of interest - wrong availment of CENVAT credit - Held that:- Considering the Hon’ble Supreme Court’s decisions in the case of Ind-Swift Laboratories Ltd. (2011 (2) TMI 6 - Supreme Court) and the Hon’ble Madras High Court’s decision in the case of Sundaram Fasteners Ltd. (2014 (2) TMI 551 - MADRAS HIGH COURT), the appellants are prima facie has not made out a case for full waiver of interest. Regarding the contention of the learned counsel for the appellants on the issue of time-bar, the same will be examined at the time of final hearing. It is also seen from the impugned order, the appellant has admitted that if at all any interest liability arises, it should be for the period from July 2007 to November 2007 and the amount of interest is approximately ₹ 1.20 lakhs - Partial stay granted.

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• 2015 (3) TMI 291 - CESTAT CHENNAI
  

  Rectification of mistake - Revenue raised a preliminary objection insofar as the application for rectification of mistake of Final Orderwere filed beyond the stipulated period of six months as provided under Section 35C(2) of the Central Excise Act, 1944 - Held that:- Sub-section (2) of Section 35C of the Central Excise Act, 1944 provides that the appellate Tribunal may, at any time, within six months from the date of the order, with a view to rectify any mistake apparent on the record, amend any order by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Central Excise or the party. There is no dispute that the present ROM applications were filed beyond six months as provided under Section 35C(2) of the Act. We find that there is no provision for condonation of delay in filing ROM applications under Section 35C(2).

  Rule 41 of the CESTAT (Procedure) Rules, 1982 provides that the Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. Rule 41 of the said Rules, 1982 has not permitted the Tribunal to rectify the mistake in Final Order. The power of the Tribunal under Rule 41 of the said Rules, 1982 is basically to implement the Tribunal s order, to meet the ends of justice, which is not applicable in the present case. - Superintendent of Central Excise by the said letter stated that the interest liability is automatic and the interest is liable to be paid even if the interest is not demanded in the show-cause notice. Thus, the payment of interest has no relation with the impugned order, which would be applicable as per law of the interest provisions. - Rectification denied.

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• 2015 (3) TMI 290 - CESTAT CHENNAI
  

  Waiver of pre deposit - CENVAT Credit - Whether at the time of converting from 100% EOU to DTA, the applicant is eligible to avail the accumulated cenvat credit lying unutilized in 100% EOU to their DTA unit - Held that:- Following the Tribunal's decision (2011 (3) TMI 632 - CESTAT, BANGALORE), we waive the predeposit of entire amount of duty along with interest and penalty and stay its recovery till disposal of the appeal - Stay granted.

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• 2015 (3) TMI 256 - CESTAT AHMEDABAD
  

  Waiver of pre-deposit - whether the appellant is liable to pay Central Excise duty of ₹ 1,12,369/- demanded under Section 11A of the Central Excise Act, 1944.with interest and imposition of penalty under Rule 25 of the Central Excise Rules, 2002, for mis-classification of Modified Tamarind Kernel Powder (hereinafter referred to as MTKP) - Held that:- order of the lower authorities as regards the classification of the excisable product MTKP is correct to the extent that it falls under chapter 1302.3900 as has been decided by the Tribunal in assessee's own previous case [2012 (7) TMI 748 - CESTAT, NEW DELHI]. To that extent, appeal filed by the appellant is liable to be rejected and we do so.

  As regards the demand of duty for the goods which were cleared from the factory premises, we find that Revenue has no case inasmuch as it is undisputed by both the lower authorities that quantity of 16000 Kgs stand exported and the documentary evidence has been accepted as to the export of such goods. It is settled law that in case the goods are finished and exported, the question of demand of duty does not arise. To that extent the impugned order confirming demand of duty and interest thereof is unsustainable and liable to be set-aside and we do so. - Since there is no duty liability that can be fastened on the appellant, we do not find any reason for visiting the appellant with any penalty, more so under Rule 25 of the Central Excise Rules, 2002. To that extent the impugned order is liable to be set-aside. - Decided partly in favour of assessee.

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• 2015 (3) TMI 255 - CESTAT NEW DELHI
  

  Mandatory equivalent penalty - Suppression of facts - Excisability of ‘sludge’ and ‘pulper waste and refuge’ - Held that:- Following decision of assessee's own previous case [2014 (4) TMI 416 - CESTAT NEW DELHI] - Decided in favour of assesse.

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• 2015 (3) TMI 254 - CESTAT NEW DELHI
  

  Waiver of pre deposit - appellants were receiving certain motor parts from one of their suppliers namely M/s. Spicer India Ltd., Pantangar on which duty was payable by the appellants on further clearance - Held that:- It is seen that the report received from the Central Excise Authority mentioned earlier does not disclose on what evidence the report is based. On the other hand, the appellants have contended that the said supplier in Uttarakhand supplied the goods in packed condition with MRP affixed thereon. The appellants have produced a written document signed by the appellants and the said supplier (i.e M/s. Spicer India Ltd.) which clearly laid down the procedure for Uttarakhand vendors for supplying goods to the appellants. As per the said document M/s. Spicer India Ltd. are required to supply the goods in packed condition with proper MRP affixed thereon. Seen in this context, the appellant’s contention that the basis on which the report from the Central Excise officer of Uttarakhand is made is not disclosed assumes significance with regard to its inadmissibility as an evidence of any value. - appellants have been able to make out a good case for waiver of pre-deposit. We accordingly waive the pre-deposit and stay the recovery of the impugned duty, interest and penalty during the pendency of the appeal. - Stay granted.

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• 2015 (3) TMI 253 - CESTAT NEW DELHI
  

  Waiver of pre deposit - Inclusion of value of the free supplied item i.e. stack in the value of the final product - Held that:- Admittedly stack are being supplied by the principal M/s. Leroy Somer India Pvt. Ltd. at Noida under the job work Challan, issued under Rule 4(5) of the Cenvat Credit Rules. After fixing the stacks in the Bodies of the Industrial Alternators, the goods are being returned to the principal, who further uses the same in the manufacturer of their final product and the duty is being paid by the principal manufacturer on the full value. The provisions of Rule 4(5) of the Cenvat Credit Rules 2004 allows movement of the goods on job work basis, under the job work Challan. As such, at this prima facie stage, we are of the view that the appellant has a good case in its favour so as to allow the stay petition unconditionally. - Stay granted.

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• 2015 (3) TMI 252 - CESTAT AHMEDABAD
  

  Discharge of SAD on the goods cleared to D.T.A - Levy of 4% SAD on clearance of goods from 100% EOU - Held that:- The appellants are export oriented unit and are eligible clear goods to DTA on payment of appropriate duty. In the case in hand, it is undisputed that appellants had discharged appropriate Central Excise duty on the goods cleared to their sister unit located in D.T.A. They had not discharged SAD on the premise that transactions between sister unit cannot be considered as sale transaction. demand on the ground that the assessee has not paid Service Tax would require the assessee to pay SAD, has been negatived - Following decision of M/s Micro Inks Ltd vs CCE&ST, Daman [2014 (2) TMI 207 - CESTAT AHMEDABAD] - Decided in favour of assessee.

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• 2015 (3) TMI 251 - CESTAT NEW DELHI
  

  Difference between export and deemed export - Held that:- There is no law to advance such proposition. Ld. Commissioner (Appeals) in para-11 of his order has given his reasoning stating that he has not found deemed export and export to be different - Decided against Revenue.

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• 2015 (3) TMI 250 - CESTAT CHENNAI
  

  Waiver of pre-deposit of tax - excisability of spent solvent/sludge - Held that:- Following decision of CCE, Chennai Vs. Tamil Nadu Petro Products Ltd. [2007 (7) TMI 460 - CESTAT, CHENNAI] - After considering the duty amount and we waive the pre-deposit of duty along with interest and penalty and stay its recovery till the disposal of the appeal - Stay granted.

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• 2015 (3) TMI 249 - CESTAT MUMBAI
  

  Waiver of pre-deposit of duty interest and penalty - clandestine removal of goods - there is excess electricity consumption - Held that:- when the examination has been conducted in the factory of the applicant, and duty has been arrived at during the impugned period on the basis of electricity consumption, production has been made by the applicant and same has been cleared without payment of duty. In these circumstances, applicant has failed to make out a case for 100% waiver of pre-deposit. Accordingly, I direct the applicant to pay 50% of the duty within eight weeks and report compliance on 09.06.2014. On such compliance, balance amount of duty, interest and penalty shall remain waived during the pendency of the appeal. - Partial stay granted.

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• 2015 (3) TMI 248 - CESTAT BANGALORE
  

  SSI Exemption - Exemption on plastic bottles - Held that:- Counsel submits that vide Notification No. 10/2013-CE(NT) dated 2.8.2013, retrospective exemption has been provided for clearances of plastic containers and plastic bottles meant for use as packing material by the person whose brand name such goods bear for the clearances from 10/06/2003 to 26/02/2010 and the period in the present dispute is covered by the Notification. Further she also submits that in the case of Ajay Plastics vide [2015 (1) TMI 295 - CESTAT BANGALORE] this Tribunal had considered the same issue and allowed the appeal finally while considering the stay application itself - Decided in favour of assesse.

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• 2015 (3) TMI 247 - CESTAT BANGALORE
  

  Determination of value to be adopted for payment of duty on petroleum products sold through COCO (Company Operated and Company Owned) - Revenue has taken a view that provisions of Rule 7 of Central Excise (Valuation) Rules, 2000 would be attracted - Held that:- Following decision of CCE, Visakhapatnam vs. BPCL: [2012 (12) TMI 471 - CESTAT, Bangalore] and BPCL vs. CCE, Chennai [2009 (9) TMI 845 - CESTAT CHENNAI] - Decided in favour of assesse.

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