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Central Excise - Case Laws
Showing 181 to 200 of 225 Records
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2015 (3) TMI 209 - CESTAT CHENNAI
Waiver of pre deposit - Duty demand under Rule 8 of the Central Excise (Valuation) Rules, 2000 - Held that:-Provision of Rule 8 will not get attracted. Following decision of Advance Surfactants India Ltd. Vs. CCE, Mangalore [2011 (3) TMI 1380 - CESTAT, BANGALORE] - applicants have made out a strong prima facie case for waiver of entire amount of duty along with interest and penalty. Accordingly, we grant waiver of predeposit of duty along with interest and penalty and stay its recovery during the pendency of the appeals - Stay granted.
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2015 (3) TMI 208 - CESTAT NEW DELHI
Waiver of pre deposit - CENVAT Credit - Imposition of interest & penalty - Held that:- Authority has clearly recorded that the total Cenvat Credit in respect of common inputs services taken by them was not reversed and only an amount of ₹ 80,006/- was reversed by them. Further, the adjudicating authority has also observed that the reversal of Cenvat credit subsequently in this manner does not absolve them from the obligation under Rule 6(3) of the Cenvat Credit Rules, more so when the period involved in this case is outside the period for which a retrospective amendment was made to give relief to the assessee in such situation where for relatively small amount of Cenvat credit on common input/common inputs services, relatively large liabilities arose due to the operation of Rule 6(3) ibid. While detailed analysis of the appellants contentions is not warranted at the stage of deciding their stay application, prima facie, it is evident that the appellants had indeed taken Cenvat Credit of common input services. Therefore prima facie the impugned order does not seem to suffer from any legal infirmity. Thus, while the appellants have not been able to make out a good prima facie case to justify full waiver of pre-deposit, having regard to the appellants contention regarding non-invocability of the extended period, we are of the view that a pre-deposit of ₹ 75 lacs would meet the requirements of Section 35F of Central Excise Act, 1944. - Partial stay granted.
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2015 (3) TMI 207 - CESTAT MUMBAI
Penalty under Rule 26 - Whether penalty can be imposed under Rule 26 of the Central Excise Rules, 2002 on high-seas seller who has not dealt with the excisable goods - Held that:- Prima facie, the said Rule 26 of the Central Excise Rules, 2002, as it stood in 2003, did not provide for imposition of such penalty. Therefore, the appellant has made out a prima facie case for waiver. Accordingly, we grant waiver from pre-deposit of the penalty adjudged against the appellant and stay recovery thereof during the pendency of the appeal. - Stay granted.
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2015 (3) TMI 206 - CESTAT AHMEDABAD
Benefit of Notification No.24/2012-CE, dt.08.05.2012 - Levy of duty on the product TOW - TOW arises during the course of manufacture of Polyester Staple Fibre (PSF) and Polyester Staple Yarn (PSY) - Held that:- by Clause 103 of Finance (No.2) Bill 2014, it proposed by a retrospective amendment for exemption to TOW which comes into existence during the period 29.06.2010 to 07.05.2012 - Gazetted copy of the Finance Bill which has been produced and note the fact that by said Clause No.103 of the Bill it is rightly stated by ld.Counsel. We are informed Honble President of India was pleased to assent the Finance Act, 2014 and there is no change in said Clause No.102 and 103 of the Finance Bill, 2014. - As there is legislative intent to exempt TOW by a retrospective amendment and that the period involved in this case is covered by the retrospective amendment, we are of the view that the impugned order is liable to be set aside - Decided in favour of assessee.
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2015 (3) TMI 205 - CESTAT KOLKATA
Waiver of pre deposit - CENVAT Credit - Held that:- Prima facie, ongoing through the invoices enclosed with the Appeal Memorandum, it is found that basic requirement of availing the CENVAT Credit has been complied with. I do not see any discrepancy at this stage, in the said invoices. In the result, the Applicant could able to make out a prima facie case for total waiver of the dues adjudged against them. Accordingly, predeposit of the dues adjudged is waived and its recovery stayed during the pendency of the Appeal - Stay granted
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2015 (3) TMI 204 - CESTAT NEW DELHI
Exemption under Notification No. 67/95-CE - Manufacture of clinker - Captive consumption - Held that:- Both the sides agreed that the issue involved in this case stands decided against the appellant by the Tribunal judgment in the case of Associated Cement Co. Ltd. vs. CCE, Chandigarh reported in [2006 (3) TMI 615 - CESTAT, NEW DELHI], wherein the Tribunal has held that when the cement unit is availing of area based exemption Notification No. 50/03-CE and clinker is captively used for manufacture of cement, the same would not be eligible for exemption under Notification No. 67/95-CE. The clinker is not eligible for exemption under Notification No. 50/03-CE as it is in the negative list of the exemption. In view of this, there is no infirmity in the impugned order - Decided against assessee.
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2015 (3) TMI 203 - CESTAT CHENNAI
Waiver of pre deposit - Black Sand (Dross) cleared by the appellant without payment of duty - Held that:- Appellant is a manufacture of Iron and Aluminium Castings. It is a fact that for manufacture of moulds, natural sand is used for preparation of sand-moulds which is mixed with resin or other materials to hold the sand mould together. After the castings are manufactured, the sand, which is burnt become black which is cleared as a waste. The Burnt Sand is sold for consideration and also is used for various other user industries. It is noticed that this very Bench in the case of Madras Aluminium Co. Ltd. Vs CCE Salem reported in [2005 (4) TMI 233 - CESTAT, CHENNAI] allowed the appeal on similar issue. Therefore, the appellant has prima facie made out a case for total waiver of predeposit and stay of its recovery. Accordingly, we waive the predeposit of duty along with interest and penalty and stay recovery thereof till disposal of the appeals - Stay granted.
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2015 (3) TMI 202 - CESTAT NEW DELHI
Area based exemption - Refund - Benefits under exemption Notification No. 56/2002-CE dated 14.11.2002 - refund of central excise duty of the said amount remitted, in excess of the duty liability, by including the value of outward freight incurred on fungicides, herbicides, insecticides, PGR etc. manufactured by it - Inclusion of ineligible freight - Additional Commissioner dropped the proceedings by recording the finding that purchase orders do not mention freight separately from the purchase value; these orders were on FOR basis; and in particular, there was no evidence to establish that the value of freight was charged separately from buyers of the final products manufactured by the assessee.
Held that:- Following decision of Hard Castle Petrofer Pvt. Ltd. vs. C.C.E. & S.T. [2014 (4) TMI 336 - CESTAT NEW DELHI], Ultimate Flexipack Lted. Vs. C.C.E.& S.T., J & K [2014 (4) TMI 654 - CESTAT NEW DELHI] and First Flexipack Corporation vs. C.C.E. & S.T., J & K [2014 (12) TMI 839 - CESTAT NEW DELHI] - where an assessee was required to pay duty on FOR price which would include the element of freight from the factory gate to the customers premises, the provisions of Section 4(3)(c) would apply, to identify the place of removal as the place of delivery to the customers place on FOR price of the transaction. - Excise duty remitted by the assessee was in accordance with law and legally entitled to refund of such duty remitted, under provisions of Notification No.56/2002-CE. The primary order passed by the Additional Commissioner is therefore impeccable and the impugned order passed by the ld. Commissioner (Appeals) is flawed and unsustainable - Decided in favour of assesse.
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2015 (3) TMI 174 - CESTAT NEW DELHI
Reversal of CENVAT Credit - Credit mistakenly taken by head office - Held that:- Goods were received by the appellant directly whereas the credit was wrongly availed by the Head office and the said mistake was subsequently rectified by issuance of reverse invoices on the basis of which the present appellant took credit, I also note that the credit was availed in March 97 and was duly reflected by the appellant in their Return filed for the said period. The Show Cause Notice stands issued on 04.02.2002 i.e. beyond the normal period of limitation. The appellant has also filed the reconciliation statement on record and the Revenue is not disputing the fact of the goods having reached the Gurgaon Factory directly. In such a scenario, the non-following of the procedure by itself cannot be held to be a ground for denial of credit. Accordingly, I set aside the impugned order on merits as also on limitation - Decided in favour of assesse.
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2015 (3) TMI 173 - CESTAT AHMEDABAD
Demand of differential duty - Classification of goods - Held that:- Court in previous order has held that the classification of the product manufactured by the appellant would fall under Chapter 54 of Central Excise Tariff Act, 1985 and rejected the claim of the appellant that it would fall under Chapter 56 of Central Excise Tariff Act, 1985. We do not find any merit in the appeal filed by the appellant as regards the issue of classification and following our order dt.29.05.2009 uphold the impugned order which classify the product manufactured by the appellant under Chapter 54.
Penalty of ₹ 1 lakh imposed by the adjudicating authority on the appellant under Rule 25 of Central Excise Rules 1944 is unwarranted and the same is accordingly set aside for the reason that appellant is still disputing the classification before Apex Court - appeal filed by the appellant is rejected on the point of classification and allowed on the point of penalty imposed - Decided partly in favour of assessee.
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2015 (3) TMI 172 - CESTAT CHENNAI
Condonation of delay - Last day of filing appeal was public holiday - Held that:- expiry of prescribed period for filing appeal on a day, when the court is closed, the next working day would be treated as the last date of the limitation. In the present case, the appeal should have been filed before Commissioner (Appeals) on 15.11.2013 which was a holiday and the appellant on the next working day i.e. on 18.11.2013 filed the appeal. In our considered view, the appellant filed the appeal before Commissioner (Appeals) within the condonable period of extended period of limitation under Section 35 (1) of the Central Excise Act, 1944. Hence the Commissioner (Appeals) is empowered to condone the period of limitation with his discretionary powers. Accordingly, we set aside the impugned order and the matter is remanded back to the Commissioner (Appeals) to decide application of the condonation of delay in filing the appeals on merit in accordance with law - Delay condoned.
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2015 (3) TMI 171 - CESTAT NEW DELHI
Waiver of pre deposit - Classification of goods - Classification of Backhoe under Chapter Heading 84322990 or under 84.31 - Held that:- The picture of Backhoe given by the appellants conforms to the claims made on their website regarding its use. As per the appellants website, Backhoe can be very efficiently used in the excavation of soil, foundation for building, trenches for pipeline and cable laying, to handle garbage, widening of rural roads. Indeed in the website agricultural, horticultural or allied activities do not even find a mention in the list of areas where Backhoe can be efficiently used. Tariff heading (84.32) covers agricultural, horticultural or forestry machinery for soil preparation or cultivation; lawn or sports ground rollers On the other hand, we find that the order-in-original as well as the order-in-appeal have discussed as to why the impugned goods do not merit classification under Tariff heading 84.32. - this much is prima facie evident that impugned goods do not merit classification under 84.32 and hence are not eligible for the nil rate of duty. Accordingly, we are of the view that the appellants have not made out a case for waiver of pre-deposit - Partial stay granted.
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2015 (3) TMI 170 - CESTAT CHENNAI
SSI exemption under Notification No. 8/2003-CE (NT) dated 1.3.2003 - Use of other person's brand name - Held that:- Brand name 'Elac' was registered in the name of M/s. K.N. Industries. The applicant filed an application to the Trademark Authority for registration of the brand name 'Elac Excel'. The learned counsel submitted that the brand name 'Elac' and 'Elac Excel' referred are different and therefore demand of duty is not justifiable. He relied upon the decision of the Hon'ble Madras High Court. The adjudicating authority observed that the brand name 'Elac Excel' is akin to 'Elac' belonging to M/s. K.N. Industries and therefore they are not eligible to avail SSI exemption.
Dispute relates to brand name 'Elac Excel' which is similar to 'Elac' which will be decided at the time of hearing the appeals at length. However, there is some force in the submission of the learned counsel for the applicant that there is a difference between the two brand names 'Elac' and 'Elac Excel'. Hence, the applicant failed to make out a strong prima facie case for waiver of predeposit of entire dues. At this stage, the learned counsel submits that the applicants are eligible for CENVAT credit of ₹ 30,93,454/- and undertakes not to utilize the CENVAT credit till the disposal of the appeals. In view of that, we direct the applicant to file an undertaking within one month from the date of the receipt of the order to the jurisdictional Deputy Commissioner of Central Excise that the CENVAT credit amount of ₹ 30,93,454/- will not be utilized till the disposal of the appeals. Upon such undertaking, predeposit of the balance dues stands waived and recovery thereof stayed during the pendency of the appeals. - Stay granted.
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2015 (3) TMI 169 - CESTAT MUMBAI
Denial of CENVAT Credit - Trading activity - Held that:- Appellant had availed credit of service tax paid on the services which are used for trading activity. As per the Cenvat Credit Rules, the credit of service tax is available to the manufacturer or provider of output service if such services are used for manufacture or providing output service. In the present case, the appellants are undertaking the trading activity which is neither a manufacturing activity not output service. The Tribunal in the case of Mercedes Benz India Pvt. Ltd. (2014 (4) TMI 12 - CESTAT MUMBAI) upheld the confirmation of demand and imposition of penalties which were made on the same grounds. In these circumstances, I find no infirmity in the impugned order - Decided against assesse.
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2015 (3) TMI 168 - CESTAT MUMBAI
Penalty u/s 11AC - Suppression of value of goods - Intention to evade duty - Held that:- appellant has not disclosed the fact regarding consideration amount received in respect of cleaning of raw material. As this expenditure is on the cleaning of raw material which is further used in the manufacture of goods hence it will become part of the assessable value of the goods cleared on payment of appropriate duty. As this fact was not brought to the notice of the Revenue we therefore find no infirmity in the impugned order. - Decided against assessee.
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2015 (3) TMI 167 - CESTAT CHENNAI
Application for modification of stay order - Undervaluation of the goods - applicant sold the goods to their two dealers, who are related persons, much lower than the price of the unrelated persons on the same day - Held that:- The documents placed by the applicants with the Miscellaneous Application cannot be a basis for modification of the stay order. The balance sheet submitted by the applicant would show huge profit. It is pleaded in the instant application that there is outstanding trade creditors of over ₹ 2.90 Crores whereas the receivables amount to over ₹ 34 Crores. It is also pleaded that the applicant has outstanding loans of over ₹ 49.65 Crores. It is seen from the Balance Sheet that the applicant earned net profit of ₹ 27627962.52. The Ld. Advocate relied upon the decision of the Tribunal in the case of Reliable Poly FIB (I) Ltd. Vs. CCE, Surat [2004 (4) TMI 397 - CESTAT, MUMBAI]. He has also placed the decision of the Tribunal in the case of Indotex Machinery Works Vs. Asst. Collector of CE & Others [1986 (1) TMI 114 - HIGH COURT OF JUDICATURE AT MADRAS], whereby it has been held that stay refused once does not operate as res judicata if party renew request for stay by placing necessary material for justification of the interim relief earlier refused. In the present case, we find that the documents placed by the applicant are new evidences, which were not placed before the Commissioner during the adjudication proceedings at any point of time. So, such evidences cannot be accepted in the Application for Modification of the stay order. - However, time period of making pre deposit is extended - Decided partly in favour of assessee.
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2015 (3) TMI 166 - CESTAT NEW DELHI
Duty demand - Levy of 4% SAD on clearance of goods from 100% EOU to sister concern in DTA - Audit party took an objection to non-payment of SAD on the ground that clearance made to their sister concern would fall under the category of ‘exempted from payment of sales tax’ hence they are liable to pay SAD - Interpretation of benefits of Notification No. 23/2003-cus - Held that:- Following decision of Micro Inks Vs. CCE & ST, Daman [2014 (2) TMI 207 - CESTAT AHMEDABAD] - demand of SAD on such inter unit transfers is set aside - Decided in favour of assessee.
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2015 (3) TMI 130 - ALLAHABAD HIGH COURT
Denial of MODVAT Credit - Rejection of the assessee's application for the permission can be granted to store the goods outside the godown - Held that:- Manufacture shall not take credit after six months of the date of issue of any document. The assessee applied for permission to store the inputs used outside the factory permission. This application was rejected subject to the condition that the assessee could bring in the goods in smaller lots and take credit on the receipt of the last and final lot. Based on this direction, the assessee brought the goods in smaller lots spaced over a period of time and the last and final lot apparently was brought after the expiry of six months - when certain goods based on the invoice was received during the period of six months but the last and final lot was received after the period of six months, we are of the opinion that Rule 57D(6) now Rule 57G(2) of the Rules being procedural in nature does not dis-entitle the claim of the assessee for claiming Modvat credit. In the absence of any deliberate delay, coupled with the fact that the transaction executed by the assessee, being a bonafide one and, based on the direction of the Superintendent, Central Excise dated 8th February, 1995, the assessee, in the instant case, was entitled for Modvat credit. The Trade Notice No.67 of 1996 clarifies such peculiar circumstances - applicant-assessee was entitled to the Modvat credit based on the letter of the Superintendent, Central Excise Range, Hapur dated 8th February, 1995 - Decided in favour of assessee.
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2015 (3) TMI 129 - CESTAT MUMBAI
Availment of CENVAT Credit - Penalty u/s 11AC - Suppression of facts - benefit under Section 11A(2B) - Held that:- Admittedly there is no contumacious conduct or fraud on part of the appellant and further the appellant has paid the duty with interest under intimation before the issue of show-cause notice. As they have deposited the tax and interest in question on 17.12.2009, whereas the show-cause notice was issued on 27.4.2011 i.e. after more than 18 months of such deposit and intimation given by the appellant. Thus, I hold that the appellant is entitled to the benefit under sub-section 2B of Section 11A of the Central Excise Act. Thus, the appeal is allowed in favour of the appellant and impugned order is set aside. - Decided in favour of assessee.
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2015 (3) TMI 128 - CESTAT NEW DELHI
Clubbing of clearances - Imposition of penalty - Seizure of goods - Held that:- impugned order has fully taken into accounts the facts like unity of control, financial flow back, absence of manufacturing facility at M/s. CPMPL, common employees and office, and rent-free space given to M/s. CPMPL and after a detailed discussion supported by judicial pronouncements has clearly established the sustainability of the allegation that clearances of two units are to be clubbed as M/s. CPMPL was merely a dummy unit of M/s. CE. The adjudicating authority also established on sustainable basis that the brand name ‘Chirag’ did not belong to the appellants but actually belonged to others who have been mentioned by name in the impugned order. Mr. Praveen Parashar s application to get the said brand name registered in his name had not been approved. That the brand name happens to be the same as the name of a son in the family does not make the brand name belong to them. As M/s. CPMPL is found to be a dummy unit, the seizure and subsequent confiscation is also clearly sustainable as has been brought out by the adjudicating authority.
As regards penalty on Mr. Praveen Parasher, it is seen that he is the proprietor of M/s. CE and therefore, as penalty on M/s. CE has been imposed, separate penalty on Mr. Praveen Parasher is not warranted. But in the present case, Mr. Praveen Parasher was the main person and was the master mind behind the whole modus operandi (beyond his role as proprietor) as has been clearly brought out in the impugned order. Therefore penalty on him is not only attracted but also warranted. Ms. Hemlata Parasher as Director of Mr. CPMPL knowingly participated in the entire modus operandi and she as Director allowed M/s. CPMPL to knowingly and willingly provide cover by pretending to be a SSI manufacturer though they did not have any infrastructure for doing so. So liability of Ms. Hemlate Parasher to penalty is not questionable.
Adjudicating authority should have dealt with the appellants contention that the value of the traded goods and the goods exported are not includible for the purpose of computation of the impugned demand. Therefore, with the consent of the ld. AR, we waive the pre-deposit, set aside the impugned order and remand the case for de novo adjudication only for the limited purpose that the appellants contention that the value of the traded goods and the goods exported needs to be excluded for the purpose of computing the impinged demand should be considered with a view to (re) computing the demand and also penalties to the extent they (i.e. penalties) get impugned upon by the (re) computation of s demand. - Decided partly in favour of assessee.
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