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Central Excise - Case Laws
Showing 221 to 240 of 338 Records
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2017 (7) TMI 393 - CESTAT NEW DELHI
Maintainability of application - Unjust enrichment - rectification application - time limitation - Held that: - in the appeal by the Revenue against order of the Commissioner (Appeals) the issue relating to undue enrichment was not a point of dispute. We have perused the review order passed by the Committee of Commissioners as well as the appeal filed by Revenue. The issue of unjust enrichment is not a point discussed in these papers. The observation of the Tribunal in the impugned final order regarding unjust enrichment is not by way of decision on a point agitated in the appeal. It is a reiteration of findings recorded by the Commissioner (Appeals).
The present miscellaneous application is only with reference to unjust enrichment. The Revenue has categorically stated that they are not on the merit of the refund claim. As such, we cannot consider the impugned final order of the Tribunal as having some infirmity either by way of apparent error of record on fact or law, calling for a modification proceedings.
Application dismissed being not maintainable.
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2017 (7) TMI 392 - CESTAT MUMBAI
Clandestine removal - manufacture of mild steel drums on job work basis - The steel drums manufactured by the appellant is meant for use by the HPCL for packaging of their final product namely asphalt. Being adjacent factory, the appellant clears the finished goods through conveyor belt to HPCL - Held that: - the MRR is prepared on quantity of drums filled with asphalt due to which there was a mismatch and the same was pointed out by appellant. With this fact without any other tangible evidence merely on the basis of difference between the MRR and GP1 quantity, the charge of clandestine removal cannot be accepted. There is a force in the argument of the Ld. Counsel that when excise duty paid by the appellant is available to the HPCL as modvat credit, there is no gain or loss either to the appellant or to the HPCL. Therefore no purpose would have been served to the appellant and/or HPCL for clandestine transaction of the drums. The exercise of payment duty of by the appellant and taking credit by the HPCL is of revenue neutrality for this reason also the demand is not sustainable.
In case of revenue neutrality, demand is not sustainable.
The revenue could not establish, beyond doubt the charge of clandestine removal against the appellant. Therefore the demand of duty penalty and interest confirmed against the appellant is not sustainable - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 391 - CESTAT CHANDIGARH
Refund claim - the respondent availed excess cenvat credit and paid less duty - Revenue is of the view that the reversal of cenvat credit is not the payment of duty, therefore, they are not entitled for refund/re-credit of the same - Held that: - during the period January’ 2007 to May’ 2007, the respondent has availed excess cenvat credit and paid less duty. If they would have taken proper CENVAT credit during the said period, they were required to pay more duty through PLA and they are entitled for more refund/re-credit. But on their realization that they have taken excess credit which they paid through PLA, in that circumstances, on the principle of balance of equity, the respondent were entitled for refund of CENVAT credit paid through PLA - appeal dismissed - decided against Revenue.
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2017 (7) TMI 390 - CESTAT CHANDIGARH
Substantial increase in installed capacity - benefit of N/N. 56/2002-CE dated 14.11.2002 - The case of the Revenue is that as the respondent has invested the capital w.e.f. 03.04.2006, whereas on the said day, the labour employment was the same, as prior to 03.04.2006 and after 03.04.2006, therefore, they have not complied with the condition of the Notification - Held that: - the understanding of the notification by the Revenue is mis-placed - the General Manager Distt. Industries Centre has issued certificate certifying that the labour has been increased more than 25% from the base labour employed, therefore, the Ld. Commissioner (A) has rightly allowed the benefit of exemption N/N. 56/2002-CE dated 14.11.2002 - Nowhere in the Notification, there is a condition that the salary bill/provident fund are required to be increased failing which, the assessee is not entitled for benefit of exemption N/N. 56/2002-CE dated 14.11.2002 - appeal dismissed - decided against Revenue.
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2017 (7) TMI 389 - CESTAT CHANDIGARH
Substantial increase in installed capacity - N/N. 56/2002-CE dated 14.11.2002 - Revenue is of the view that a certificate has not been issued by the General Manager, Distt. Industries Centre, therefore, they are not entitled to avail benefit of exemption N/N. 56/2002 ibid - Held that: - the certificate has been issued by the General Manager, Distt. Industries Centre in terms of para 3(b) (ii) of the N/N. 56/2002 ibid and only clarification to that certificate has been clarified by the Assistant Labour Commissioner. In that circumstance, it cannot be said that the respondent has not produced necessary certificate issued by the General Manager, Distt. Industries Centre, therefore, the Ld. Commissioner (A) has rightly allowed the benefit of exemption N/N. 56/2002 ibid to the respondent - appeal dismissed - decided against Revenue.
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2017 (7) TMI 388 - CESTAT NEW DELHI
Applicability of provisions of Section 11A(2B) of the Act - in respect of a few invoices the appellant while clearing the goods, under CETH 8535, have not followed the MRP based assessment in terms of Section 4A of the Act - differential duty paid before issuance of SCN - Held that: - Section 11A(2B) provides for closure of proceedings without issue of notice where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer before service of notice on him.
There is no evidence on record to sustain the allegation of wilful misstatement, fraud or intention to evade payment of duty. Apparently, the longer period of short payment alone was considered as reason enough for non-closure of case under Section 11A(2B). This much has been recorded by the lower authorities also. We find the short payment spread over longer period by itself will not bar the closure of case, without SCN.
While upholding the payment of differential duty alongwith interest by the appellant, the penal proceedings against the appellant are found to be untenable - appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 387 - CESTAT NEW DELHI
CENVAT credit - service availed in relation to disposal of waste - services for raising the height of tailing dam - Rule 2(1) of the CCR - Held that: - the appellant/assessee cannot operate their business or manufacturing facility of dutiable / excisable goods without compliance with the directions given by State Pollution Control Board to minimise the pollution under the relevant Pollution Control laws. Compliance with the directions of the State Pollution Control Board if not done by the appellant industry, may result in prosecution of the appellant company and its key personnel under the various Pollution Control laws for violation - the cenvat credit received on the services for raising the height of tailing dam and maintenance service for pipeline work of tailing dam, used for disposal of industrial waste and polluted water in compliance with Environmental laws is an input service within the meaning of Rule 2(1) of Cenvat Credit Rules, 2004 used by the manufacturer indirectly in or in relation to the manufacture of final products and clearance of final products from the place of removal - credit allowed.
Similarly, the cenvat credit on services procured for construction of secured land fill and jerofix storage pond, which are used for disposal of industrial waste and polluted water in compliance with Environmental laws is an input service received by the manufacturer indirectly in relation to the manufacture of final products - credit allowed.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 386 - CESTAT NEW DELHI
CENVAT credit - services of maintenance of tyres used in various HEMM - denial on account of nexus - Held that: - It is an admitted fact that such heavy earth moving machineries were used for mining and procurement of ore which was further used/ subjected to process of beneficiation, for obtaining the dutiable metal, being zinc, etc. Accordingly, the said input service qualifies for credit under Rule 2(l) of the CCR, 2004 - the issue is squarely covered vide final order of this Tribunal in the appellant’s own case Hindustan Zinc Ltd. Versus CCE, Jaipur-II [2013 (11) TMI 944 - CESTAT NEW DELHI] - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 385 - CESTAT CHANDIGARH
Penalty - duty paying invoices - the allegation against the appellant is that Shri Vishal Arora is arranging cenvatable invoices without the goods from M/s. Aarcee Ispat Udyog Limited for Shri Pawan Goyal, a commission agent and supplied the goods to the buyers - Held that: - in the case of M/s. Aarcee Ispat Udyog Limited the charge of issue of cenvatable invoices without supply of goods has been exonerated and penalty has been dropped by Commissioner (Appeals) itself. In that circumstance, charge against the appellant is not sustainable - penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 384 - CESTAT MUMBAI
CENVAT credit - steel items were used for making steel structure for erection installation of plant and machinery - Held that: - since the goods in question were excluded explicitly w.e.f. 7-7-2009 in the definition of input that itself shows that prior to the amendment the same was included in the definition of input - CENVAT credit in respect of HR sheet and M.S Plates etc is admissible to the appellant - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 382 - CESTAT MUMBAI
Input - appellant have cleared the input as such on payment of duty which was short as compared to CENVAT credit availed thereon - Held that: - it was a case where the interest was demanded under Rule 14 which prescribed demand of interest in case of wrong credit taken or utilized wrongly whereas in the present case the demand was confirmed u/s 11A.
Interest u/s 11AB - Held that: - Once the demand of short payment of duty confirmed u/s 11A, interest u/s 11AB will inevitable get invoked therefore, the demand of interest is sustainable.
Penalty - Held that: - demand is within the normal period and there is no intention of evasion of duty therefore penalty u/s 11 AC is not proper - penalty imposed under Section 11AC set aside.
Appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 381 - CESTAT MUMBAI
CENVAT credit - credit availed suo moto without following refund process as prescribed under Section 11B - Held that: - suo moto credit taken by the appellant is not against the amount which was paid as duty whereas suo moto credit is taken against debit of cenvat credit due to inadvertent, which is excess to the already debited the duty amount in the previous month therefore second time debit made by the appellant is not duty which only happened due to inadvertent mistake of the appellant. Accordingly, no process of Section 11B is required for claiming refund. The appellant has rightly rectified mistake on their own by taking suo moto credit - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 380 - CESTAT MUMBAI
100% EOU - benefit of N/N. 1/95-CE dated 4-1-1995 - appellant procured some input under N/N. 1/95-CE dated 4-1-1995 and the same was used in the manufacture of goods on job work basis on the material supplied by M/s Tata Iron & Steel Co. Ltd (M/s. TISCO) and cleared the processed goods on payment of duty to M/s. TISCO - case of the department is that the clearances made to M/s. TISCO is not sale therefore the same is not permissible under DTA sale by an 100% EOU - Held that: - in the respondent's own case, the tribunal has decided the matter in favor of the respondent which was reported as Universal Ferro & Allied Chelnicals Ltd Vs. Commr. of C. Ex. Nagpur [2005 (10) TMI 539 - CESTAT MUMBAI], where it was held that The benefit of clearance at the rates applicable under N/N. 8/97 in this case as claimed by the appellants cannot be denied as there is no finding or an allegation of use of any duty free imported raw material having been utilized in the manufacture of Silicon Manganese by the appellants - appeal dismissed - decided against Revenue.
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2017 (7) TMI 340 - DELHI HIGH COURT
Pre-deposit - the present writ petitions have been filed praying that this Court should direct the CESTAT to accept the entire amount of pre-deposit made by each of the Petitioners, notwithstanding the earlier withdrawal, and hear the appeals of the Petitioners on merits - Held that: - there has been a chronic delay in making pre-deposits far beyond the time granted by the Court - the Court is not inclined to grant any further indulgence to the Petitioners - petition dismissed - decided against petitioner.
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2017 (7) TMI 339 - CALCUTTA HIGH COURT
Principles of Natural Justice - copies of documents relied upon by prosecution not made available - procedure prescribed under the notification issued in respect of Excise Rule 12 CCC - It is alleged that, the petitioner had availed of CENVAT Credit on the strength of invoices which are doubtful - Held that: - an opportunity of hearing to a delinquent would encompass within its wake the materials sought to be relied upon against him in the proceeding to be made over to him so that the delinquent is in a position to make an effective representation on the charges levelled against him - The impugned order stands vitiated by the non-adherence of the principles of natural justice. A post facto so called compliance thereof will not cure the proceedings which stands already vitiated - petition allowed - decided in favor of petitioner.
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2017 (7) TMI 338 - MADRAS HIGH COURT
Refund claim of excess duty paid - valuation of Physician's sample - Board Circular dated 01-07-2007 - where it is well settled that the Board circular would be applicable only prospectively, whether the 1st respondent was correct in directing the authority to follow the Board circular dated 13.02.2003 for the past period? - Held that: - the assessable value of the Physician's sample can only be based on the actual cost of production to the assessee. The assessable value, as indicated in the 2002 circular, is 115% of the cost of production. The Tribunal having come to this conclusion, in our opinion ought not to have taken recourse to the 2003 circular - the Tribunal quite clearly, seeks to apply the 2003 circular which adverts to the CAS-4 methodology. Furthermore, as it appears, the Tribunal only to obtain more clarity qua the ascertainment of cost of production has remanded the matter to the Adjudicating Authority - appeal allowed by way of remand.
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2017 (7) TMI 337 - CESTAT CHENNAI
100% EOU - clandestine removal of raw materials from JDL-EOU to JDL-DTA, without any approval from concerned authorities - Held that: - from the SCN itself, it clearly emerges that the goods so found removed from JDL-EOU were very much located and detained in JDL-DTA unit. In the circumstances, taking note of the fact that both the units are adjacent to each other under a common management, the averment that removal of goods had only been necessitated due to destruction caused in one unit due to Tsunami, should not be summarily rejected.
The only infraction that comes up is that appellants have removed the goods without any prior permission or for that matter, any post-facto permission. But given the facts that the goods removed to the adjacent unit have been found available, even such infraction would only have to be considered as a procedural lapse which should not be given the colour of clandestine removal with intent of evading duty. When the impugned goods not found at the EOU unit have, however, been subsequently found in their adjacent DTA unit, there cannot be any demand of customs duty on such goods.
Penalty u/s 11AC - Held that: - Imposition of equal penalty u/s 11AC ibid on JDL-EOU and confiscation of the detained goods valued at ₹ 3,01,98,135/- will also, in consequence, not sustain.
Penalty u/r 25 - Held that: - Penalty of ₹ 15 lakhs imposed u/r 25 of CER on JDL-EOU is therefore, unnecessary and excessive - what that has happened is a procedural violation for which, in our considered opinion, imposition of such huge penalty is an overkill. We therefore hold that interest of justice for such a procedural lapse would be best served by limiting the penalty to ₹ 25,000/-.
Penalty u/r 26 - Held that: - there is no justification for imposition of penalty of ₹ 1 lakh on JDL-DTA u/r 26 ibid since the adjacent unit was only used to store the goods temporarily. It is also pertinent to note that JDL-DTA has not been issued a SCN. This penalty against JDL-DTA is therefore set aside.
Appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 336 - CESTAT NEW DELHI
SSI exemption - dummy units - Revenue entertained a view that Kores had floated many units in order to improperly avail small scale exemption - N/N. 8/2003-CE - Held that: - The thrust of the Revenue’s appeals against the findings of the Original Authority is revolving around the financial and managerial controls alleged to have been exercised by Kores on these small scale units - the notice issued to demand Central Excise duty should clearly identify the person from whom such duty is being demanded. There can be no demand invoking the concept of jointly and severally. The plea of the Revenue is that notices were issued to the dummy units in order to satisfy the principals of natural justice. In such case, the notices are to be restricted, if at all, only to penal proceedings as no duty can be demanded from such purported dummy units.
The rural SSI units were engaged in packing of staple pins with Kores brand. This was evidenced even during the searches conducted by the officers, in two of the such units. The Original Authority also found that while the demand was raised against the rural units, no such demand was made from urban units in the proceedings.
Appeal dismissed - decided against Revenue.
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2017 (7) TMI 335 - CESTAT CHANDIGARH
CENVAT credit - input services - Call Centre Services received by the appellant after clearance of goods for sale promotion - Held that: - the services provided by Call Centres are in nature of sale promotion, as the services of sale promotion is covered under Rule 2(l) of the Cenvat Credit Rules, 2004, therefore, the Ld. Commissioner (A) has rightly allowed cenvat credit on the services received from the call centres as sale promotion services.
Scrap cleared without payment of duty - time limitation - Held that: - the generation of scrap in the factory of the respondent was well with the knowledge of the Revenue. In that circumstances, the extended period of limitation is not invokable and the Ld. Commissioner (A) has rightly dropped the demand on scrap which is beyond normal period of limitation.
Appeal dismissed - decided against Revenue.
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2017 (7) TMI 334 - CESTAT CHANDIGARH
Reversal of CENVAT credit - the appellant reversed the cenvat credit on capital goods on depreciated value as per Rule 3(5A) of the CCR, 2004 - Revenue is of the view that the appellant is entitled to avail cenvat credit upto 50 % of the value of capital goods, therefore, for the intervening period the appellant is required to reverse more cenvat credit at the time of clearance of the capital goods - Held that: - The appellant has rightly reversed the cenvat credit on appropriate value of the capital goods. - The interpretation made by the Revenue is only on assumption and presumption which is not sustainable in the eyes of law. - demand set aside - decided in favor of appellant.
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