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Central Excise - Case Laws

Showing 181 to 200 of 1051 Records

• 2015 (10) TMI 1979 - CESTAT KOLKATA
  

  Waiver of pre deposit - Clandestine removal of goods - Held that:- During visit of the Central Excise officers on 21/09/2005, 7 chits were found against which 85MT of cement was shown to have been cleared. Main appellant also paid the duty with respect to 85MT of Cement. It is further observed from para 5.30 of the Order-in-Original dated-10/01/2013 that certain invoices/challans issued by the main appellant were also recovered suggesting use of separate set of invoices for effecting clandestine removals. In addition to the above, Revenue has brought other corroboration on record the veracity of which has to be gone into detail which can be only done during the course of final hearing. Main appellant has not made out a prima facie case of complete waiver and is required to be put up to certain conditions. It is accordingly, ordered that main appellant should pre-deposit an amount of ₹ 20.00 Lakhs within a period of eight weeks - Partial stay granted.

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• 2015 (10) TMI 1978 - CESTAT KOLKATA
  

  Waiver of pre deposit - penalty imposed under Rule 15 (2) of the Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944 - demand of cenvat credit - Place of removal - Held that:- Prima-facie, we find that the dispute rests on the interpretation of the expression "place of removal", which is covered by the decision of the Larger Bench of this Tribunal in the case of Honest Bio-vet Pvt. Ltd. (2014 (11) TMI 579 - CESTAT AHMEDABAD). While deciding the case in the context of eligibility of remission from duty liability on destruction of the goods in port area - Applicant could able to make out a prima-facie case for total waiver of pre deposit of dues adjudged. Accordingly, the requirement of pre-deposit of all dues adjudged is waived and its recovery stayed during pendency of appeal - Stay granted.

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• 2015 (10) TMI 1977 - CESTAT AHMEDABAD
  

  Valuation - Determination of duty payable - Held that:- issue is no more res-integra, in view of the decision of the Larger Bench of the Tribunal in the case of Ispat Industries Ltd. vs. Commissioner of Central Excise, Raigad [2007 (2) TMI 5 - CESTAT, MUMBAI], which was followed by this Bench in the case of Jay Corporation vs. Commissioner of Central Excise & Service Tax, Daman [2014 (4) TMI 1080 - CESTAT AHMEDABAD]. - Rule 8 of valuation Rules provides the excisable goods are not sold by the assessee but are used for consumption by him or on his behalf in the production or manufacture of other articles, the value of such goods that are consumed shall be one hundred and ten per cent of the cost of production or manufacture of such goods. In the present case, the appellants sold the goods partly and therefore, Rule 8 as it stood during the relevant period would not be applicable. We have noticed that the Rule 8 of the valuation was amended, by Notification No. 14/2015-CE (NT) Dated 22.11.2013. - Impugned order is set aside - Decided in favour of assessee.

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• 2015 (10) TMI 1976 - CESTAT CHENNAI
  

  Denial of CENVAT Credit - input service - GTA - held that:- When the claim of the respondent was that it satisfies the requirement of the circular, it should have produced the document before learned Commissioner (Appeals) for examination. But that was not done. Therefore, that Authority has directed lower authority to verify relevant evidence for the period Apr.06 to Mar.07. Therefore, his order does not appear to be incorrect. Accordingly, subject to carrying out of the direction of the learned Commissioner (Appeals) his finding does not call for interference. - Decided against Revenue.

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• 2015 (10) TMI 1975 - CESTAT NEW DELHI
  

  Denial of CENVAT Credit - Duty levied on raw material - Imposition of penalty - Held that:- Decision in the case of CCE, Hyderabad vs. Deepthi Formulations Pvt.Ltd. [2013 (3) TMI 547 - CESTAT BANGALORE] followed - No infirmity in the impugned order that calls for interference - Decided against Revenue.

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• 2015 (10) TMI 1974 - CESTAT BANGALORE
  

  Denial of CENVAT Credit - Manufacture - Held that:- when the CENVAT credit availed on the inputs stand utilized for payment of duty on the final product, there would be no requirement of reversal of the said credit even if the activity undertaken by the assessee does not amount to manufacture. By following the decision [2014 (9) TMI 974 - CESTAT NEW DELHI], we set aside the impugned order - Decided in favour of assessee.

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• 2015 (10) TMI 1973 - CESTAT BANGALORE
  

  Denial of excess availed CENVAT Credit - discrepancy happened is on account of placement of decimal in the figures of duty reflected in the invoices - Imposition of penalty - Held that:- Admittedly penalty is to be imposed in case an assessee acts with malafide intention and in a deliberate and contemptuous conduct. No doubt appellant had taken excess credit but the explanation offered by them is that this is on account of inadvertent mistake on the part of clerk responsible for maintaining records inasmuch as the same has occurred on account of change of place of the decimal in the figures of the credit. The appellants have paid interest to the extent of ₹ 3,81,412/-; which is penal in character. The observations of Commissioner (Appeals) that if not pointed out by the audit, the same would have gone unnoticed, do not attribute to the allegation of malafide to the appellant. In the absence of any evidence to show that there was malafide on the part of the assessee, I find that there is no justification for imposition of penalty upon the assessee. - Decided in favour of assessee.

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• 2015 (10) TMI 1972 - CESTAT AHMEDABAD
  

  Duty demand - failure to discharge the monthly payment of duty for the months March 2012 to June 2012 - Contravened the provisions of Rule 8 (3A) of Central Excise Rules 2002 - Held that:- Gujarat High Court in the case of Indsur Global Ltd Vs Union of India [2014 (12) TMI 585 - GUJARAT HIGH COURT] held that Rule 8 (3A) of Central Excise Rules 2002 is unconstitutional. - Impugned order is set aside - Decided in favour of assessee.

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• 2015 (10) TMI 1971 - CESTAT AHMEDABAD
  

  Denial of CENVAT Credit - whether Cenvat credit is admissible for bought out items like; Nuts, Bolts and Washer cleared along with the finished excisable goods i.e. tower parts which are used for erection of non-excisable Towers at site outside the factory premises of the appellant; under Cenvat Credit Rules, 2004 - Held that:- The attitude of the appellants indicate that they are not interested in pursuing their case by not being present during hearings fixed for the purpose. On merits it is observed that items on which credit has been availed have not been established to be used either in or in relation to the manufacturing activities in the factory of the appellant. The items claimed to be inputs do not satisfy the definition of ‘inputs’ given under Rule 2 of the Cenvat Credit Rules, 2004. On merits order passed by the first appellate authority are correct and is required to be upheld. - appeals filed by the appellant are dismissed on merits as well as for non-prosecution - Decided against assessee.

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• 2015 (10) TMI 1970 - CESTAT NEW DELHI
  

  Denial of CENVAT Credit - 100% EOU - DTA Clearances - procurement of goods duty free under Notification No. 1/95-C.E., dated 1-3-1995/Notification No. 22/2003-C.E., dated 31-3-2005 - Held that:- C.B.E. & C. Circulars do not have the legal force of statutory Rules or Notifications nor can they alter the scope thereof. It is seen that as per Rule 3 of the Cenvat Credit Rules, 100% EOUs are fully eligible to take Cenvat credit of duty paid on inputs used in or in relation to the manufacture of final products because this rule does not make any exception as regards 100% EOUs. Notification No. 18/2004-C.E. (N.T.), dated 6-9-2004 did not in any way affect the eligibility of the EOU for taking Cenvat credit; it only allowed them the facility to pay duty either by debit to the PLA or by debit to the Cenvat credit account. Prior to 6-9-2004, the EOUs could only pay duty through the PLA, Thus, the eligibility of EOUs for taking Cenvat credit of duty paid on the inputs received is in no way related to the issuance of Notification No. 18/2004-C.E. (N.T.). - it does not necessarily mean that an EOU has to either procure all their goods duty free or procure all their goods on payment of duty. The sentence “Some EOU’s have to procure their raw materials on payment of duty also” contained in the said para makes it clear that EOUs can procure their raw material either duty free or on payment of duty. Be that as it may, the legal position is clear that the 100% EOU’s are eligible to take Cenvat credit of duty paid on the raw material procured by them for use in or in relation to the manufacture of their final product. Seen in this light the Board circular stating that the EOU’s have been allowed to avail Cenvat credit can only mean that now they can utilise the same. - Decided in favour of assessee.

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• 2015 (10) TMI 1969 - CESTAT NEW DELHI
  

  Benefit of Notification No. 85/95-C.E., dated 18-5-1995 - Held that:- Supreme Court in the case of Markfed Vanaspati & Allied Indus. (2003 (4) TMI 98 - SUPREME COURT OF INDIA) has held that spent earth remained earth even after the processing and therefore no duty is leviable on spent earth. It is also seen that in the case of Maheshwari Solvent Extraction Ltd. (2013 (7) TMI 51 - CESTAT MUMBAI), the Hon’ble CESTAT held that impurities consisting of gums, waxes and fatty acids are eligible for the benefit of Notification No. 89/95-CE. Similarly, in the case of CCE, Hyderabad v. Shree Siddhi Vinayaka Agro Extractions P. Ltd. - [2009 (8) TMI 1138 - CESTAT BANGALORE]. the Hon’ble CESTAT held that soap stock and wax emerging during process of manufacture of vegetable refined oil is waste and not a by-product and is therefore, eligible for the benefit of Notification No. 89/95. - issue is no longer res integra - Decided in favour of assessee.

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• 2015 (10) TMI 1968 - CESTAT NEW DELHI
  

  Recovery of interest - whether interest is recoverable with reference to the date of clearance of goods in cases where as a result of price escalation clause the prices are revised upward subsequent to the date of clearance of the respective goods - held that:- merely because the differential amount of duty is ascertained subsequent to the date of clearance, the due date of payment of duty never stands changed or extended and it would always relate to the date of removal of goods. Further, the Hon’ble Court held that the expression FOR under Rule 7(4) of Central Excise Rules, 2002 refers to the month for which the amount is determined pursuant to the finalisation of price and hence interest liability would commence from the month succeeding the day on which the duty was due and payable in relation to the goods cleared. The Hon’ble Supreme Court in that case followed its earlier decision in the case of SKF India Limited - [2009 (7) TMI 6 - SUPREME COURT ]. As regards the judgment of Karnataka High Court in the case of BHEL (2010 (4) TMI 439 - KARNATAKA HIGH COURT ), it is to state that Hon’ble Bombay High Court in case of Gammon India Limited v. Commissioner of Customs & Excise, Nagpur - [2013 (6) TMI 559 - BOMBAY HIGH COURT] has held that dismissal of SLP against the said Karnataka High Court judgment in case of BHEL (supra) was not sufficient to ignore the binding Supreme Court judgment in the case of SKF India Limited (supra) endorsed again by the Supreme Court in the case of International Auto Limited (2010 (1) TMI 151 - SUPREME COURT OF INDIA). While following the judgment of the Hon’ble Supreme Court in the case of SKF India Limited and International Auto Limited (supra) Bombay High Court clearly held that the judgment of Karnataka High Court does not reflect the good law in this regard as the SLP against that order was not dismissed by Supreme Court on merit. - Decided against assessee.

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• 2015 (10) TMI 1967 - CESTAT MUMBAI
  

  Denial of CENVAT Credit - Various service - Held that:- Services involved in the present case are already held by the Hon'ble Gujarat High Court(2010 (5) TMI 483 - GUJARAT HIGH COURT ), to be eligible for CENVAT credit in respect of the goods exported by the assessee and the Hon'ble Gujarat High Court has confirmed the CESTAT order passed by the Ahmedabad Bench in that case. In the case of Export of goods 'port' is the 'place of removal'. Following the decision of the Hon'ble Gujarat High Court, I allow the appeal with consequential benefits. - in spite of stay order granted by this Tribunal, the Deputy Commissioner of Central Excise & Customs, Alibagh Division, Raigad has adjusted the total duty amount plus penalty plus interest involved in the aforesaid appeal against the appellant's duly sanctioned rebate claim for export of goods. - concerned authority directed to refund the adjusted amount with interest, as per Rules - Decided in favour of assessee.

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• 2015 (10) TMI 1966 - CESTAT NEW DELHI
  

  Denial of CENVAT Credit - Capital goods - Held that:- Revenue has filed this appeal basically on the ground that the said decision of CESTAT in the case of CCE, Trichy v. India Cements Ltd., (2004 (5) TMI 441 - CESTAT, CHENNAI) does not hold good as the said decision has already been stayed by Hon’ble Madras High Court vide its orders dated 6-4-2005 (Interim Stay) and 20-9-2005 (stay made absolute) in the matter of C.M.A. No. 392-395/2005 [2011 (8) TMI 399 - MADRAS HIGH COURT ] (filed by CCE, Trichy against the Tribunal’s order in question. - decision of the Tribunal in the case of CCE, Trichy v. India Cements Ltd., (supra) had only been stayed and not been set aside by any competent Court. In any case, that case of CCE, Trichy v. India Cements Ltd., has since been decided Hon’ble Madras High Court upholding the Tribunal’s decision. Consequently the very basis of the Revenue’s appeal collapses. - Decided against Revenue.

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• 2015 (10) TMI 1965 - CESTAT NEW DELHI
  

  Waiver of pre deposit - Classification of goods - Held that:-Canopies ‘manufactured’ by the appellants have no walls or windows and therefore would not fall under Chapter heading 94.06. As the impugned demand has been confirmed classifying the canopies under the said heading, we allow the stay petition, waive the pre-deposit of the impugned duty, fine and penalties and stay their recoveries during the pendency of the appeals. - Stay granted.

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• 2015 (10) TMI 1964 - CESTAT NEW DELHI
  

  Exemption under notification no.10/96-CE dated 23.07.1996 - Held that:- The benefit of the said notification is being denied to the appellant on the sole ground that their final product is Animal Feed Supplement and as such, the notification will not apply to them - At this prima facie stage, we find that the issue is covered by the Larger Bench s decision in the case of Tetragon Chemie (P) Ltd. Vs. CCE, Bangalore reported in [1998 (9) TMI 390 - CEGAT, NEW DELHI] upheld by the Hon ble Supreme Court in the case of CCE, Bangalore Vs. Tetragon Chemie (P) Ltd reported in [2001 (7) TMI 127 - SUPREME COURT OF INDIA]. We also take note of the other identical decisions of the Tribunal and are of the view that the appellant has good prima facie case on merits. - Stay granted.

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• 2015 (10) TMI 1963 - CESTAT KOLKATA
  

  Waiver of pre deposit - penalty imposed under Rule 18 of the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determinations And Collection of Duty) Rules, 2010 read with Section 11AC of Central Excise Act, 1944 - Held that:- as the Notification and also the Board’s Circular dated 24-1-2014 are specific, therefore, it would be difficult to appreciate that if a single track machine is capable of producing the quantify of goods that could be manufactured by a double track machine, therefore, the single track machine be treated as double track machine, for the purpose of determination of rate of duty under the said Rules. In the result, the Applicant could able to make out a prima facie case for total waiver of pre-deposit of dues adjudged. Consequently all dues adjudged is waived and its recovery stayed during pendency of the Appeal. - Stay granted.

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• 2015 (10) TMI 1962 - CESTAT MUMBAI
  

  Benefit of Notification No. 101/66 - principal ingredients is less than 5% - Letter dated 3-2-1986 was issued to the appellant to deny the benefit of the said notification and thereafter another letter was issued on 21-5-1986 clarifying that the final decision will be taken at the time of adjudication of the case. The Revenue has proceeded on the premise that as the letter dated 21-5-1986 have not been challenged by the appellant; hence not entitled for the benefit of the said notification although the test reports are in their favour - Held that:- As per letter dated 21-5-1986, which itself states that the final decision will be taken at the time of adjudication of the case. It means the issue is to be decided during the course of adjudication. Therefore, the appellants were not required to challenge the said order/letter and while adjudicating the case adjudicating authority has considered the fact that principal ingredients is less than 5%. Therefore, the appellants are entitled for benefit of Notification No. 101/66 ibid which has not been controverted by the Revenue in their appeal. The ld. Commissioner (Appeals) in the impugned order has not appreciated these facts, therefore, we do not find any merit in the impugned order same is set aside - Decided in favour of assessee.

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• 2015 (10) TMI 1961 - CESTAT NEW DELHI
  

  Denial of CENVAT Credit - Invoices not in the name of assessee - Held that:- While the appellant during April 2009 and May 2009 have availed the Cenvat credit, in question, on the basis of invoices issued by M/s. M.R. Builders, Ludhiana, the invoices are in the name of M/s. R.I. Agri Engineers Pvt. Ltd., Village Bhama Kalan, Machhiwara and not in the name of the appellant i.e. M/s. AMA India Enterprises (P) Limited, Machhiwara Road, Bhama Kalan, Machhiwara. It is seen that the appellant under their letter dated 9-4-2009 addressed to the Assistant Commissioner had intimated about change of their name from M/s. R.I. Agri Engineers Pvt. Ltd. to M/s. AMA India Enterprises (P) Ltd. Beside this, there is also a letter dated 18-2-2010 of Superintendent (Technical) addressed to the appellant company - M/s. AMA India Enterprises (P) Ltd., informing them that they have been granted the permission under Rule 10 of the Cenvat Credit Rules, 2004 to transfer the Cenvat credit in balance in the name of old unit to their new unit. This leaves no doubt that M/s. AMA India Enterprises (P) Ltd., and M/s. R.I. Agri Engineers Pvt. Ltd. are one and the same and M/s. AMA India Enterprises (P) Ltd.” is the new name of “M/s. R.I. Agri Engineers Pvt. Ltd.” In view of this, the denial of Cenvat credit to the appellant is incorrect - Decided in favour of assessee.

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• 2015 (10) TMI 1960 - CESTAT NEW DELHI
  

  Imposition of penalty - Non submission of ER-1 returns electronically - Held that:- There is no dispute that since April, 2010 onwards in terms of the provisions of Central Excise Rules, monthly ER-1 returns were required to be filed electronically and accordingly failure to file electronically would attract penalty under Rule 27. There is no dispute that throughout during April, 2010 to December, 2010 period, the monthly returns were filed manually in time, but due to systems problem, the appellant could not file the returns electronically. From the observations of the Commissioner (Appeals) in Para 5 of the order, it is clear that there was some systems error which was rectified only in January, 2011. Thus, it is clear that non-filing of ER-1 returns electronically during April, 2010 to December, 2010 was due to systems error which was rectified in January, 2011 and therefore for this period, the appellant cannot be blamed for not filing the ER-1 returns electronically. - throughout during the period from April, 2010 to December, 2010, the returns had been filed manually and in time and just because the returns for this period could not be filed electronically in time due to systems error and were filed electronically only in July, 2011, it would not be correct to impose penalty on them under Rule 27. In view of this, the impugned order is not sustainable. The same is set aside - Decided in favour of assessee.

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