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Central Excise - Case Laws
Showing 201 to 220 of 338 Records
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2017 (7) TMI 441 - CESTAT CHENNAI
SSI exemption - use of Brand name of others - It was alleged that they are using the emblem that is being used by M/s. Micro Labs, Hosur - N/N. 01/93 dated 01.03.1993 - Held that: - there is no allegation in the SCN that the emblem wave linesbelongs to Micro Labs and that the respondent has used it is correct. In fact, the allegation raised is only that the emblem embossed indicates a communication in the course of trade between such specified goods and Micro Labs who are using such emblem with or without as indication of the identified by using the emblem of Micro Labs who are not eligible for the grant of exemption under N/N. 1/93 dated 28.02.1993. Thus the allegation raised in the SCN does not make any sense - also, the department has not produced any evidence to show that the alleged trade mark belongs to Micro Labs.
The Hon’ble Apex Court in the case of Astra Pharmaceuticals [1994 (12) TMI 77 - SUPREME COURT OF INDIA] has made a distinction between house mark and product mark(trade name).
Appeal dismissed - decided against Revenue.
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2017 (7) TMI 440 - CESTAT CHENNAI
Valuation - job-work - whether the job worker is required to discharge duty liability on the basis of selling price of the principal manufacturer? - Held that: - issue regarding valuation of goods manufactured on job work basis is no more res integra and the law has been well settled in this regard by the Hon’ble Apex Court in the case of Ujjagar Prints [1988 (11) TMI 106 - SUPREME COURT OF INDIA], where it was held that the job worker is not required to discharge duty liability on the basis of selling price of the principal manufacturer. - the adjudicating authority has rightly dropped the allegation in this regard and the interference by the Commissioner (Appeals) by placing reliance on the N/N. 27/92 dated 09.10.1992 is misconceived -
Valuation - includibility - machine rental charges - Held that: - the issue settled by the judgment in the case of COMMISSIONER OF CENTRAL EXCISE, MUMBAI Versus PEPSICO INDIA HOLDINGS (P) LTD. [2009 (1) TMI 53 - SUPREME COURT] wherein it has been categorically held that the charges are not includible in the assessable value.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 439 - CESTAT CHENNAI
SSI exemption - order of amalgamation - whether SSI exemption granted therein can be extended till the date of judgment of the Hon’ble High Court when the order of amalgamation has been passed? - time limitation - Held that: - the Hon’ble High Court has given the specific date for amalgamation which is 01.04.1991. However, the scheme of amalgamation was approved by the Hon’ble High Court vide judgment dated 20.02.1992 only. On receiving the information appellants submitted the same to the department. However, the department has issued the SCN only on 27.07.1993 by invoking the extended period - Apart from alleging that the appellant is not eligible for SSI exemption after amalgamation of the two companies, there is no allegation of suppression of facts or mis-declaration - demand is barred by limitation - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 438 - CESTAT MUMBAI
100% EOU - waste - During the course of such manufacture of Absorbent Cotton, cotton waste was generated - it was alleged that the excess cotton waste generation took place - Held that: - There are grave inconsistencies on the vital fact, such as the Ld. Commissioner has not considered the raw material imported and indigenously procured, this aspect is very significant to decide the dutiability on the cotton wastes and droppings. Similarly, the various issues raised by the appellant in his submissions was not considered properly by the adjudicating authority - the entire matter requires relook on all the issues - appeal allowed by way of remand.
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2017 (7) TMI 437 - CESTAT HYDERABAD
Clandestine manufacture and removal - Sponge iron - natural justice - Held that: - the appellants were seeking the cross examination of various persons and the same having not been granted to them, the impugned order is unsustainable on this ground only - there is violation of principles of natural justice and the impugned order needs to be set aside - matter remitted back to the adjudicating authority to reconsider the issue afresh after following the provisions of Section 9D of the CEA, 1944 in respect of the witnesses of whom appellant had sought cross examination - appeal allowed by way of remand.
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2017 (7) TMI 436 - CESTAT CHENNAI
Benefit of N/N. 6/2002-CE dated -1.03.2002 - clearance of control panel and bus duct - Revenue is of the view that the control panel and bus duct has been cleared for the purpose of controlling and distribution of power and are not used for devise or for a system of non-conventional energy as mentioned in the notification - Held that: - The appellants have furnished the certificate issued by the Non-conventional Energy Development Corporation of AP Government, wherein it has stated that it is required for the power project of the said corporation. It is well clear from the certificate itself that the goods are intended to be used for non-conventional energy devise.
The adjudicating authority has denied the benefit merely holding that the control panel and bus ducts cannot produce energy independently and therefore, is not eligible for the benefit of exemption under N/N. 6/2002. The Commissioner Appeals has rightly analyzed that if this interpretation is to be accepted then the benefit of notification can be claimed only by those manufacturers who are capable of manufacturing the entire non-conventional energy system by themselves. This would not be practically or logically possible that the word device producing energy is not to be interpreted in such a manner to deny the benefit.
Appeal dismissed - decided against Revenue.
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2017 (7) TMI 435 - CESTAT CHENNAI
CENVAT credit - credit availed on common inputs used for dutiable as well as exempted goods - Windmill Tower - Held that: - The appellants in the present case though have reversed the proportionate credit along with 8% of labour charges, it is contended by the department that they have to reverse 8% of value of exempted goods after including the value of free supply items. In view thereof, we find that it is fit to remand the issue to the adjudicating authority to consider whether the appellants have reversed credit as required under Rule 57CC - matter on remand.
Valuation - includibility - charges to the tune of ₹ 59 lakhs in respect of System Engineering charges in the value of Coal Ship Loader - Held that: - this issue requires to be remanded for verification of the appellant's claim that the design element in the manufacture of Ship Loader has already been included for payment of duty. The charges for the System Engineering amounting to ₹ 59.00 lakhs sought to be included by Revenue relates to aspects such as Port layout, Jetty position etc. We are of the view that the appellants should be given an opportunity to produce documents to establish their claim - matter on remand.
Appeal allowed by way of remand.
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2017 (7) TMI 406 - CESTAT CHENNAI
Valuation - clearance of manufactured computers after pre-loadingh with Application Software - misdeclaration of value - Department took the view that appellant actually preloaded the software into the computer and cleared the same; that they had made a wilful misstatement that they were deducting from the value of (of the computers) the actual cost of software; that however they had deducted more than such actual cost with the intent to evade duty of excise on the computers - time limitation - Held that: - the period between the appellant's letter dt. 25-08-2000 (referred to in the SCN) or for that matter, the date of recording of statement from Shri Ravishankar namely, on 20-06-2001, and issue of SCN is well beyond normal period of limitation. We are unable to fathom the reasoning for this inexplicable delay on the part of the department to initiate adjudication proceedings, especially when no new material or facts have been unearthed by them other than the said letter of the statement. Such delay cannot sought to be covered up by invoking suppression when there was no suppression, or while invoking misstatement, of which also we do not find any evidence. This being so, the proceedings initiated against the appellant are clearly hit by limitation and the appellant will succeed on this ground alone - the impugned order will have to be set aside on the ground of limitation proceedings being hit by limitation.
On merits also, Deduction of software cost has to be on the basis of amount equivalent to market prices of the comparable product, that the cost of operating software was not the cost of CD alone but other costs such as royalty, warranty, after-sales service etc. are to be taken into account, that the intrinsic value of software is to be calculated by taking into account not only the purchase price but other costs, and that department charged that appellant overstated the value of software in undervalue the computer do not stand on firm ground.
Reliance was placed in the case of Birla Corporation Ltd. Vs CCE [2005 (7) TMI 104 - SUPREME COURT OF INDIA].
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 405 - CESTAT CHANDIGARH
CENVAT credit - fake invoices - the office/godown premises for which registration was granted to M/s.S.K.Garg & Sons was not in control/possession/ under rent by the dealer at the material time and they had issued invoices without having any known office or godown to store the excisable goods - Held that: - there was fraud committed right from the day the dealer applied for his registration and false transactions were made repeatedly & systematically to defraud Revenue - the appellant had purchased 28 consignments of plates and bars from the dealer directly and one consignment from second stage dealer. The appellant did not produce any evidence as to when the goods were purchased by the dealer to ascertain whether the storage of the goods required or not and the Commissioner (Appeals) rightly held that the appellant failed to substantiate that the goods purportedly sold to the appellants by the dealers directly to second stage dealer were from stock on which duty has been paid.
There is no steps were taken by the appellant to satisfy themselves about the identity and address of the dealer M/s.S.k.Garg & Sons and thus they failed to discharge statutory burden under Rules 7(2), 7(4) and 9(5) of the CCR, 2002 - it is very clear that it was the case of fraudulent availment of credit on the basis of fake invoices.
Appeal dismissed - decided against appellant.
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2017 (7) TMI 404 - CESTAT CHANDIGARH
Excess goods manufactured - Surrender of income - Held that: - As the duty has been demanded from the appellant without adducing any evidence by the Revenue that the appellant has manufactured excess goods. The duty can be demanded on the manufactured goods only and not other activities. Therefore, in the absence of any evidence of excess manufactured goods, demand against the appellant is not sustainable - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 403 - CESTAT CHENNAI
Clandestine removal - AMSM was indulging in removing cotton yarn in the guise of hank yarn - time limitation - case of appellant is that that since two show cause notices were issued on identical set of facts, evidences, allegations, the subsequent show cause notice raising a demand of ₹ 32,73,025/- is barred by limitation - Held that: - the basis for demand of duty in the first show cause notice and the second show cause notice is entirely different. The department has relied upon 59 documents for issuance of the second show cause notice whereas in the first show cause notice they have relied upon 25 documents as stated earlier. All these would go to show that both the show cause notices are entirely different.
We do take note of the argument put forward by the learned AR that there was a time limit prescribed under section 110 of Customs Act, 1962 for issuance of show cause notice proposing for confiscation of the goods when the goods have been seized. Thus, the first show cause notice appears to have been issued by the department to comply with this statutory time limit and confining the proposal for confiscation, imposition of fine, penalty and duty demand to such allegation only. Though the date of recording of statements may be before issuance of first show cause notice (6.6.2002), we have to consider the fact that department would require more time for investigation, follow-up action, formulation of allegations based on such statements and invoices for issuing of the second show cause notice raising the allegation of clandestine removal of goods and duty demand on this count. Considering the voluminous nature of evidences, we do hold that the issuance of the second show cause notice dated 7.5.2004 is legal and proper and not hit by limitation.
Appeal dismissed - decided against appellant.
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2017 (7) TMI 402 - CESTAT CHANDIGARH
Clandestine removal - shortage of finished goods - excess of raw material and work in progress - Held that: - the quantity of 5885 Kg cannot be weighed in one go, the goods has to be weighed in parts and there should be a weighment sheet of weighment (if done physically). As the evidence of physical weighment is missing, in that circumstances, it is concluded that the goods has been weighed is only eye estimation basis. On the basis of the eye estimation, the allegation of clandestine removal of goods or excess found of goods is not sustainable - appeal dismissed - decided against Revenue.
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2017 (7) TMI 401 - CESTAT MUMBAI
Clandestine removal - extra filling of material in the tubes - Held that: - learned adjudicating authority has given detailed findings considering all aspects in the process of manufacturing, probability of variations in the quantity shown in the Laboratory records and Excise records and come to the conclusion that there is no case of removal of goods without payment of duty.
he adjudicating authority has taken too much pain for concluding that there is no case of evasion of duty on the ground that the difference between the lab reports and Excise reports is not due to excess production and clearance of production without payment of duty but due to manner of process of manufacturing. The adjudicating authority also come to a conclusion that there is no independent evidence put forth by the department to establish any clandestine removal - Even the department accepts the different of production recorded in Excise records and Lab records but did not adduce any evidence that there is excess production and the same was cleared without payment of duty. In absence of any evidence on clandestine removal even if there is a difference between the two records of the appellants the clandestine removal cannot be concluded only on that basis - demand set aside.
As regards the other 3 appeals bearing No. E/202/08, E/203/08 and No. E/762/08 these are related to refund claim of the duty paid by the appellant on the difference of quantity of Excise records and Lab records. Therefore the refund is consequential to the demand case which was decided in E/201/08 and E/167/09. All the 3 appeals deserve to be remanded to the adjudicating authority for reprocessing the refund.
Appeal allowed in part - part matter on remand.
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2017 (7) TMI 400 - CESTAT ALLAHABAD
CENVAT credit - M.S. Rounds, Structure Parts, Shrinkomp, G.I. Structures, etc - Explanation to Rule 2(k) of CCR - Held that: - the items in dispute are either components of capital goods or inputs which have been used in manufacture of capital goods which are further used in the factory of the appellant for manufacture of dutiable goods like sugar and molasses etc - the appellant is entitled to CENVAT Credit on the items in dispute - appeal allowed - credit allowed - decided in favor of appellant.
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2017 (7) TMI 399 - CESTAT CHANDIGARH
CENVAT credit - duty paying invoices - it was alleged that documents did not have the requisite information as required under Rule 4A of the Service Tax Rules and there was no indication whether the distributed credit is in respect of duty paying unit or the exempted unit - Held that: - It was reported that the invoices issued by service providers on the basis of which M/s Dabur India Ltd. had taken the impugned credit and distributed to their unit at Baddi contained the details/information i.e. name & address of service provider, service tax registration number, invoice/bill number & date, name of service, value of taxable service and service tax paid/payable etc and no other discrepancy has been noticed except the following discrepancies relating to invoices of M/s Thakur ji Sons, wherein it was found that the service tax registration number is mentioned on invoices as Applied For instead of PAN based registration number. On the invoices of 18 others services providers, the discrepancy was that Service Tax registration number mentioned in invoices was not PAN based registration number. We find that these are remediable defects and denial of input credit on that basis may not be justified - Since there are technical discrepancies in relation to 18 out of 29 advertisers as brought out by the aforesaid verification report, the matter is remanded to the original adjudicating authority for fresh decision - matter on remand.
CENVAT credit - Broadcasting services - advertising services - Held that: - the Dabur India Ltd. Kaushambi is the recipient of two services, namely, the service from the advertising agencies like DADBUR and broadcasting agency service by the broadcasters. The invoices of broadcasters are telescoped into the invoice of advertiser indicating service tax paid by them. The bills by the broadcasters are raised on the appellant. The amount charged by the broadcasters does not form part of the taxable value of the services provided by the advertising agency. The Service Tax charged by the advertising agency is on the commission it charges, which is mentioned in the invoices issued to M/s Dabur India Ltd. Kaushambi. We find merit in the contention of the appellant that the Broadcasting and advertisement have been done on behalf of the appellant and they have borne the incidence of Service Tax, the credit cannot be denied.
Appeal allowed in part and part matter on remand.
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2017 (7) TMI 398 - CESTAT KOLKATA
Clandestine removal - Held that: - the assessee produced the statements by way of reconciliation of the documents and DSA, which were not refuted by the Revenue in their grounds of appeal - the said case laws cited by Revenue are not applicable in the facts and circumstances of the present case - appeal dismissed - decided against Revenue.
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2017 (7) TMI 397 - CESTAT CHENNAI
CENVAT credit - input services - services provided by Transenergy to the appellants under sub-lease agreement - Held that: - disputed services were provided by Transenergy to the appellants under sub-lease agreement wherein it had been agreed upon that the former shall provide these services either directly or by engaging third party service provider - the services provided by Transenergy to the appellants whether directly or through a third party service provider cannot be disallowed, so long as they are found to be eligible input services for the purpose of Rule 2 (l) of Cenvat Credit Rules, 2004.
CENVAT credit - duty paying invoices - denial on the ground that invoices in particular that they do not indicate any specific service provided by Transenergy to the appellants and that there is no clarity on whether the services otherwise provided on common basis, to all the manufacturers in the sub-leased area, have been properly apportioned - Held that: - at least some of the services, though are eligible services for the purpose of availment of cenvat credit, it is not possible to permit the same in view of the defects found in the invoices - considering the Ld. Advocate s submission that these defects can be cured at this stage and that they have the exact apportioned figures in respect of each service provided to them by Transenergy, on the basis of authenticated documents given by the latter and also certified by Cost Accountant, the interests of justice would be best served if the appellants are given another opportunity to satisfy the adjudicating authority on this aspect.
Appeal allowed by way of remand.
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2017 (7) TMI 396 - CESTAT CHENNAI
CENVAT credit - duty paying invoices - job-work - department took the view that no service was rendered by BIL, hence, availment of credit of service tax component reflected in those invoices was incorrect - Held that: - the activity performed by BIL for monitoring of production activities of the appellants cannot by any stretch of imagination be considered as an input service in or in relation to the manufacture of final products of the appellants. At the most, the billing made by BIL to the appellants can be termed as an arrangement for passing on of the costs - even in the invoices dated 28.12.2013 of BIL submitted by the Ld. Advocate during the hearing, while under the head description of service it has been mentioned as BSS however the said invoices also clearly indicates MPLS cost 2013-14-III Qtr. This aspect also shows that the whole exercise was only for the benefit of BIL and that billing was only an exercise to shift part of the MPLS cost to the appellants - appeal dismissed - decided against appellant.
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2017 (7) TMI 395 - CESTAT ALLAHABAD
Refund claim - finalization of provisional assessment - refund rejected on the ground of unjust enrichment and issue of limitation - Held that: - the Original Authority and Appellate Authority did not have advantage of said certificate for appreciation of transactions between the appellant and their customers - The certification of the transactions between the appellant and their customers is essential for understanding as to whether in the practice of accounting as stated in the said certificate dated 04/04/2017 is there any chance of higher duty incidence getting passed on to the customer and appellant be in a position to pay less excise duty to the exchequer and get enriched by the difference between the two through refund - matter remanded with a direction to re-examine the issue of unjust enrichment and decide the matter afresh on merit - appeal allowed by way of remand.
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2017 (7) TMI 394 - CESTAT NEW DELHI
EPCG scheme - rate of duty on the capital goods/ spares pares procured indigenously - The case of the Revenue is that there is no specific Central Excise notification which provides exemption from payment of duty when cleared to unit availing EPCG scheme. The capital goods / spares parts which were originally procured duty free in terms of N/N. 22/2003-CE dated 31.03.2003 while setting up of EOU, would have to be debonded in terms of para 8(1) of the said Notification - Held that: - Para 8 of the said Notification stipulates that no such clearance or debonding of capital goods under EPCG Scheme of Chapter 5 of Foreign Trade Policy shall be allowed if the user industry has not fulfilled the positive NFE criteria at the time of clearance or debonding in terms of para 6.18 (d) of the Foreign Trade Policy. Thereafter, the procedure for such clearance and method of calculation of depreciation are mentioned in the said Notification - Admittedly, in the present case, the appellant-assessee are entitled for debonding as they have achieved positive NFE. Accordingly, debonding was permissible in terms of the said Notification. It is to be noted that Notification No.22/2003-CE is for providing exemption to goods brought into EOU. This Notification does not provide any exemption to the capital goods, spare parts etc. for supply under EPCG Scheme. We are in agreement with the original authority regarding absence of any exemption Notification covering the situation as explained above, to support the claim of the appellant-assessee for an exemption from Central Excise duty.
The rates applicable to any goods should have a clear legislative provision by way of rate in the tariff or by a supporting exemption notification - no specific exemption Notification could be cited by the appellant-assessee to claim exemption for the capital gods which are being debonded to avail EPCG Scheme. In such situation, we are not able to accept the claim of the appellant-assessee.
The appellant –assessee emphasised that the demand is not tenable as there is Revenue neutral situation resulting no addition to the Government revenue. We find that the concept of Revenue neutrality cannot be considered as a bar for non confirmation of tax dues, otherwise payable by the appellant –assessee. If that be so, then in many of the cases the appellant themselves can choose whether to pay duty on goods or services, when the credit is available; or to pay duty only on final product. Such discretion is not vested with tax payer.
The rate of duty on the depreciated value should be on the date of debonding under EPCG Scheme. We note that when the debonding is done in terms of Notification No.22/2003-CE, then the rates of depreciation as prescribed in the Notification has been correctly applied.
Valuation - Capital goods - includibility - fire control system, water storage tank etc. - Held that: - the items like cord can, fire control system, water storage tank etc. will fall within the scope of “capital goods” as understood in the trade parlance. Accordingly, the original authority allowed depreciation applicable to capital goods and dropped the demand for differential duty on this account. We are in agreement with the reasons recorded by the impugned order.
EPCG scheme - the spare parts and accessories procured from domestic sources and also imported - eligibility - Held that: - On analysis of the authorisation as well as nature of items as recorded in the impugned order, we are in agreement with the findings of the original authority regarding the eligibility of these items under EPCG Scheme. In the present appeal, the Revenue could not bring out any substantial issue either in fact or in law to interfere with the finding of the original authority.
Penalty u/r 25 - Held that: - It is clearly recorded that the appellant-assessee have not breached any of the provisions of Rule 25 of Central Excise Rules, 2004 as they have not removed the excisable goods in contravention of any of the Rules - penalty set aside.
Appeal allowed - decided partly in favor of appellant.
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