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Central Excise - Case Laws

Showing 241 to 260 of 1051 Records

• 2015 (10) TMI 1843 - SUPREME COURT
  

  Classification of goods - Classification of "Woven fabrics of silk, silk-wool fabrics" - Classification under Chapter sub-heading 5111.29 or under Chapter sub-heading 5005.90/5005.20 - Held that:- The only objection raised by the Revenue is that when the issue was remitted back for re-determination it should have been open remand and should not have remarked that "Dry Weight Standards" should be applied and even in respect of that the matter should have been left open for the Adjudicating Authority to take a call thereof. This suggestion is accepted by the learned counsel for the assessee. We, therefore, modify the directions with the observations that on remand when the matter is to be re-determined by the Adjudicating Authority, it is an open remand and it would be permissible for the Adjudicating Authority to go into all the relevant issues in determining the classification. - Appeal disposed of.

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• 2015 (10) TMI 1842 - CESTAT CHENNAI
  

  Delay in payment of duty - payment of duty without utilizing the cenvat credit - Held that:- This being a small scale unit, the appellant assessee was paying excise duty on monthly basis as per Rule 173 G of CER, 1944 from 01.04.2000. SCN No. 692/2003 dated 16.06.2003 was issued based on the amendment to Rule 173G (I) (e) w.e.f. 11.02.2001, which was later substituted by Rule 8 of CER, 2001. It cannot be disputed that the provision of Rule 8(4) are pari materia with Rule 173 G (I) (e) and the non-obstantive clause was introduced by insertion of sub-rule 3A in Rule 8 of CER, 2002 only w.e.f. 31.03.2005, while the period in dispute in the present case is prior to that date. - condition contained in sub-rule (3A) of Rule 8 of CER, 2002 for payment of duty without utilizing the cenvat credit till an assessee pays the outstanding amount including interest is unconstitutional and that the subsequent proceedings initiated by the department for demanding tax was set at naught. - condition contained in Rule 8 (3A) of CER, 2002 for payment of duty without utilization of cenvat credit is contrary to the scheme of availment of cenvat credit under CCR and the said Rule 8 (3A) is arbitrary and violative of Article 14 of the Constitution. Accordingly, the Hon’ble High Court has struck down the Rule 8 (3A) as unconstitutional. The jurisdictional Hon’ble Madras High Court’s ruling is binding on the jurisdictional adjudicating authority and also binding on this Tribunal. - demand of duty under Rule 8 (3A) is unsustainable as the said Rule has been struck down by the Hon’ble High Courts [2015 (5) TMI 603 - MADRAS HIGH COURT] and the demand of duty and penalty imposed in the impugned order is liable to be set aside - Decided in favour of assessee.

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• 2015 (10) TMI 1841 - CESTAT AHMEDABAD
  

  Clandestine removal of goods - discrepancy in RG-1 register - semi finished goods - It is the case of the appellant that all goods mentioned in the Blender register do not became ripe for clearances till the blended dye sample is approved by the customer. That in case of non approval the batch prepared is not cleared. It is also the case of the appellant that a new batch is prepared as per the desired quality of the customer either by improving the earlier batch or otherwise and earlier entry made in the Blender Register is struck-off. - Held that:- that case of clandestine removal of S.O. Dyes by the main appellant is not sustainable as there is no evidence of clandestine removal of the goods calculated on the basis of entries made in the Blender register of the main appellant. - Decided in favour of assessee.

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• 2015 (10) TMI 1840 - CESTAT NEW DELHI
  

  Valuation - Related person - mutuality of interest - SSI exemption - Held that:- As held by the Hon'ble Apex Court in the case of Alembic Glass Industries Ltd. (2002 (4) TMI 75 - SUPREME COURT OF INDIA), merely having shareholding does not make them related persons. - loans has been repaid by M/s. SIPL in future. Moreover, goods sold to M/s. CF by M/s. SIPL at a gross profit of around 16-18% and the sale by M/s. SIPL to M/s. CF is negligible in the year 2001-02 i.e. 8.9%, in the year 2003-04 i.e. 3.20% except in the year 2002-03 i.e. 20.23%. But the gross profit during the impugned period ranges from 16% to 19% whereas the total gross profit of M/s. SIPL during the impugned period is around 18%. If at all, we presume that there is a mutuality of interest in that case also when the goods are sold by M/s. SIPL to M/s. CF on the price at which the goods have been sold to independent buyers, in that case the sale price by M/s. CF cannot be held as assessable value for M/s. SIPL. Therefore, we hold that demand of ₹ 4,84,076/- is not sustainable. Accordingly, same is set aside.

  M/s. K S Enterprises is a sub contractor and who has got manufactured this aluminum windows in question by purchasing their own raw material and at site. M/s. K S Enterprises has issued invoices to M/s. SIPL to that extent M/s. K S Enterprises, has also filed an affidavit stating that the goods have been manufactured by them and they are not paying duty as they are enjoying SSI Exemption limit. Both the lower authorities has not given credence to the affidavit filed by Shri Kultar Singh, proprietor of M/s. K S Enterprises. In fact, no contrary evidence have been produced by the Revenue, to support that the goods have been manufactured by M/s. SIPL. In fact, duty is payable on manufactured goods not on traded goods. The affidavit is having evidential value if not proved contrary. Therefore, it is held that aluminum windows were manufactured by M/s. K S Enterprises who was enjoying SSI Exemption and M/s. SIPL is only trader for said goods. Therefore, duty cannot be demanded from M/s. SIPL. - Decided in favour of assessee.

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• 2015 (10) TMI 1839 - CESTAT NEW DELHI
  

  Area based exemption - Classification of goods - products namely Gulabari, Keora Water and Shilajit Capsules - appellants were paying duty on these products either by utilizing Cenvat credit or by cash and claimed the same as refund of the amount paid through PLA - Exemption under Notification No. 56/2002-CE. - Held that:- In the absence of specification or definition as to what constitutes a Rose Water or a Keora Water, commercially accepted parlance has to be considered. It is not in dispute that the products labels clearly carry the name as Rose Water and Keora Water and the lower authorities conclusion for not considering them under the specific heading is not legal and tenable. These products cannot be considered as aqueous solutions of essential oils under heading 3301 as that heading deals with essential oils, products of essential oils and aqueous distillates and solutions of essential oils. Further, as per the Rules of interpretation when there is a specific heading by the very same name of the product these products cannot be put under generic heading of aqueous solution. As such, we find that these products which are emerging as manufactured items are rightly classifiable under heading 33030020 and 33030030. It is also necessary to mention here that the Department cannot take two different views in respect of same product manufactured by the same person in two different units. - present view in respect of Jammu unit is intended only to deny the benefit under Notification No. 56/2002-CE without much legal basis.

  Regarding classification of Shilajit Capsules - On careful consideration of the observations of the lower authority and the submissions of the appellant, we find that though the Department claimed that Shilajit Capsules are generic Ayurvedic medicine as per the formula/ingredients mentioned in Authoritative Ayurvedic text, no documentary support to the effect that the product cleared by the appellant is as per any such text has been put forth before us. The appellant produced registration of this Shilajit Capsules with the Drug Controller and in absence of any contrary evidence by the Department as mentioned above, it is clear that the Ayurvedic medicine cleared by the appellant is manufactured PP medicine and not of generic nature. - Decided in favour of assessee.

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• 2015 (10) TMI 1838 - CESTAT AHMEDABAD
  

  Admissibility of Cenvat Credit - Capital goods - Held that:- Items like MS Plates, Beams, Channels, Angles etc., when used in the repair of the capital goods would be eligible for cenvat credit but the same item when used in the making of support structures will not be eligible to Cenvat Credit. - items are only used for maintenance and repairs of their capital goods and not for making supporting structures. Reliance placed by the Learned Consultant on the list of items, duly verified by the jurisdictional Central Excise officers also do not throw any light as to where the items like MS Plates, Angles, Channels, TMT Bars etc are used. The matter is, therefore, required to be remanded back to the Adjudicating Authority to ascertain the use of these items and decide the same in view of the law laid down by CESTAT and the Supreme Court in the relied upon cases by both sides. Appellant is at liberty to produce the documents/chartered engineers certificate to the adjudicating authority to the effect that the inputs for which Cenvat Credit is claimed are used only in the maintenance and repair of the capital goods. Needless to say that the Adjudicating Authority shall give an opportunity of personal hearing to the appellant before deciding the case in the remand proceedings.

  So far as imposition of equivalent penalty upon the appellant is concerned, it is observed that the issue of taking of Cenvat Credit on the impugned items was the subject matter of interpretation and has been answered by the courts as late as 2011. Therefore, no penalty under Rule 15(2) of the Cenvat Credit Rules read with Section 11AC of the Central Excise 1944 is attracted as the period involved in the present proceedings is from 2005-2010. - Decided in favour of assessee.

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• 2015 (10) TMI 1837 - CESTAT AHMEDABAD
  

  Levy of Penalty under Rule 26 on co-noticee - Adjudicating authority dropped the proceedings initiated by the Show Cause Notice dt.25.01.2012 against the main noticee - Held that:- Person (main noticee) had paid the duty and interest and informed the Department by letter dt.08.02.2011. Thereafter, the impugned Show Cause Notice dt.25.01.2012 was issued to the main noticee and the Appellants herein. The Adjudicating authority had dropped the proceedings initiated in the Show Cause Notice, extending the benefit under Section 11A (2B) of the said Act. - proceedings initiated under the Show Cause Notice dt.25.01.2012, has been dropped by the Adjudicating authority by invoking Section 11A(2B) of the Act, the imposition of penalty against the Appellant herein cannot be sustained. Section 11A(2B) categorically provides that no notice under sub-section (1) of Section 11A shall be served where the duty and interest paid by the person. Hence, imposition of penalty on the co-noticee cannot be sustained for the reason that the notice issued under Section 11A(1) cannot be served.

  Penalty on the Appellant was imposed under Rule 26 of Central Excise Rules, 2002. Rule 26 of the said Rules provides any person who acquires possession of, or is in any concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any manner deals with any excisable goods which he knows are liable to confiscation under the Act or Rules, shall be liable to penalty. In the present case, there is no demand of duty and confiscation of goods and therefore, the imposition of penalty on the Appellant is not warranted. - Decided in favour of appellant.

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• 2015 (10) TMI 1836 - CESTAT BANGALORE
  

  Classification of Burnt Lime - Raw lime stone is burnt along with coal in a vertical shaft kiln. - whether Burnt Lime manufactured by the respondent is classifiable as Calcium Oxide under CTH 2505.00 or not - Held that:- In the Tariff description, it is not specified ‘Burnt Lime’. Lime includes Burnt Lime also. In fact, it includes all types of limes. It is to be noted that Tariff heading as it reads now does not have specific heading for Burnt Lime, Calcium Hydroxide, etc. - What is covered by Chapter 28.25 is Calcium Oxide which of 98% purity or more. Admittedly in this case, the purity of the burnt lime is 70 to 75% only. Therefore, in view of the Board s Circular as well as HSN Explanatory Note, the product manufactured by the respondent has to be classified under CTH 25.05 only.

  From the raw materials used, the process employed or the parameters of the resultant product show that the Burnt Lime manufactured by the respondent is not classifiable under CETH 28.25. Hon’ble Supreme Court has already held in the case of Commissioner of Central Excise, Shillong vs. Wood Craft Products Ltd. [1995 (3) TMI 93 - SUPREME COURT OF INDIA] that HSN Explanatory Note can be used as a guide to resolve dispute relating to tariff classification and in this case, HSN Explanatory Notes as well as Board’s Circular clearly support the stand taken by the respondent. Moreover, lime is specifically mentioned under Chapter heading 28.25 and lime is general description and therefore, it can be said to cover ‘Burnt Lime’. - impugned order does not require any interference - Decided against Revenue.

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• 2015 (10) TMI 1835 - CESTAT NEW DELHI
  

  Reversal of credit for use of inputs in generation of electricity - Imposition of penalty - Rule 15(2) of the Cenvat Credit Rules, 2004 - Captive consumption - Bagasse - Held that:- There was justification for the appellant to entertain the belief that it was outside the purview of Rule 6 and there was no requirement for reversal the cenvat credit. However, once the cenvat credit has been reversed along with interest, there was no requirement for the Central Excise department to proceed further for imposition of penalty, especially by invoking the provisions of Rule 15(2) of the Rules, which, in clear and unambiguous terms provides that in case of fraud, collusion, or wilful mis-statement, or suppression of facts with intent to evade payment of duty, the said provision can be invoked and not otherwise. The record reveals that suppression, misstatement etc., cannot be alleged against the appellant, since a genuine belief regarding non-maintenance of separate accounts was entertained by it.

  Admittedly, non-reversal of cenvat credit in the present case is not attributable to any fraud, collusion, mis-statement etc., and accordingly, provisions of Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 cannot be invoked for imposition of penalty on the appellant. - there was no justification for invoking the provisions of Rule 15(2) of the rules for imposition of penalty in the impugned order. - Therefore, the impugned order is set aside - Decided in favour of assessee.

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• 2015 (10) TMI 1834 - CESTAT NEW DELHI
  

  Refund claim - Unjust enrichment - Held that:- Cenvat credit which was adjusted against the confirmed duty demand was in excess of the amount which was required to be adjusted towards payment of duty. We further find that the appellant is simply seeking restoration of credit which had been adjusted in excess. In the facts and circumstances of the case, we are of the view that restoration of Cenvat credit in the account of the appellant will only restore the position to the extent of credit which was not required to be adjusted. Thus, when viewed from the angle of continuous utilization of credit, we find that unjust enrichment is not invokable. - Decided in favour of assessee.

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• 2015 (10) TMI 1833 - CESTAT NEW DELHI
  

  Denial of CENVAT Credit - Bogus invoices - Invoices received without actual receipt of goods - Held that:- No statement of the supplier with regard to the appellant have been recorded to say that supplier has not supplied goods to the appellant but supplied only invoices. Further no other investigation has been conducted with regard to the appellant by physical taking the stock etc., recording the statement of the supplier or the appellant themselves. In these circumstances, relying on the decision of the Hon’ble High Court of Punjab and Haryana in the case of Talson Mills Store I hold that demand is not sustainable as the High Court has found that revenue is required to hold an independent enquiry against the appellant and only thereafter could an order be passed. - Decided in favour of assessee.

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• 2015 (10) TMI 1832 - CESTAT NEW DELHI
  

  Denial of exemption claim - Classification of goods - Held that:- For availing the exemption Notification Nos. 49/2003-C.E. and 50/2003-C.E., filing of the declaration in prescribed format to Assistant/Deputy Commissioner, with a copy to the Superintendent of Central Excise is mandatory and as the exemption is applicable only from the date of filing of the declaration, in our view, this condition for availing the exemption has been substantially complied with by sending the declaration to the jurisdictional Superintendent of Central Excise about which there is no dispute. The jurisdictional Superintendent could have passed to the Assistant Commissioner’s office and just because the copy of the declaration was not sent by the assessee to the jurisdictional Assistant Commissioner/Dy. Commissioner, the exemption cannot be denied.

  As regards the second objection that the Tariff Heading mentioned in the declaration is 8517 50 30 while there is no such Tariff heading, in our view this is a clerical mistake as there is no dispute about the description and nature of the product being manufactured and on the basis of the description, the product would be classifiable as “Data Processing Machine” under Heading No. 8474 which are covered by the exemption Notification No. 49 - 50/2003-C.E. Just on account of some clerical mistake in mentioning of the sub-heading, the benefit of the exemption notification cannot be denied. - Decided in favour of assessee.

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• 2015 (10) TMI 1831 - CESTAT AHMEDABAD
  

  Denial of CENVAT Credit - Held that:- The appellants are discharging duty on monthly basis under Rule 8 of Central Excise Rules, 2002. There was a delay in discharging of duty on monthly basis. The appellant paid duty partly from CENVAT account during the defaulted period. By the impugned order, the Adjudicating Authority disallowed the utilization of the amount from CENVAT account during the period from 05.07.2010 to 29.09.2010 in terms of provisions of Rule 8(3A) of Central Excise Rules, 2002 and confirmed the demand of duty along with interest and imposed penalty for not paying the amount by cash from PLA. We find that the Hon’ble Gujarat High Court in the case of Indsur Global Ltd Vs Union of India - [2014 (12) TMI 585 - GUJARAT HIGH COURT] held that the portion “without utilizing the CENVAT Credit” of sub-rule (3A) of Rule 8 of Central Excise Rules, 2002, shall be rendered invalid.” - impugned order is not sustainable. The impugned order is set aside - Decided in favour of assessee.

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• 2015 (10) TMI 1830 - CESTAT AHMEDABAD
  

  Duty demand - CENVAT Credit - Demand of interest - Held that:- appellants were discharging duty on monthly basis under Rule 8 of Central Excise Rules, 2002. There was a delay in discharging of duty on monthly basis. The appellant paid duty partly from CENVAT account during the defaulted period. By the impugned order, the Adjudicating Authority disallowed the utilization of the amount from CENVAT account during the period from 05.07.2010 to 29.09.2010 in terms of provisions of Rule 8(3A) of Central Excise Rules, 2002 and confirmed the demand of duty along with interest and imposed penalty for not paying the amount by cash from PLA. - In view of the decision of Hon’ble Gujarat High Court [2014 (12) TMI 585 - GUJARAT HIGH COURT], we find that the impugned order is not sustainable. The impugned order is set aside - Decided in favour of assessee.

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• 2015 (10) TMI 1829 - CESTAT AHMEDABAD
  

  Duty demand - CENVAT Credit - Demand of interest - Held that:- Appellants were engaged in the manufacture of Meter Gauge classifiable under Chapter 73 & 84 of Central Excise Tariff Act, 1985. The appellants were discharging duty on monthly basis under Rule 8 of Central Excise Rules, 2002. There was a delay in discharging of duty on monthly basis. The appellant paid duty partly from CENVAT account during the defaulted period. By the impugned order, the Adjudicating Authority disallowed the utilization of the amount from CENVAT account during the period from 05.07.2010 to 29.09.2010 in terms of provisions of Rule 8(3A) of Central Excise Rules, 2002 and confirmed the demand of duty along with interest and penalty partly for not paying the amount by cash from PLA. - portion “without utilizing the CENVAT Credit” of sub-rule (3A) of Rule 8 of Central Excise Rules, 2002, shall be rendered invalid.” - In view of the decision of Hon’ble Gujarat High Court [2014 (12) TMI 585 - GUJARAT HIGH COURT], we find that the impugned order is not sustainable. The impugned order is set aside - Decided in favour of assessee.

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• 2015 (10) TMI 1828 - CESTAT AHMEDABAD
  

  Duty demand - procedure as prescribed under Rule 6 of the Cenvat Credit Rules, 2002 not followed - Held that:- issue involved is covered by the amendment by Finance Act, 2010. In view of that, we set-aside the impugned order and appeal is allowed with consequential relief. - Decided in favour of assessee.

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• 2015 (10) TMI 1827 - CESTAT BANGALORE
  

  Exemption Notification No.48/2008-CE dated 2.9.2008 - clearances made for flood victims subject to fulfillment of certain conditions - Non maintenance of separate accounts - Held that:- Appellant was not availing the exemption regularly. The exemption in question, which is solely meant for flood victims, was availed in respect of one clearance only. In such a scenario, no assessee would keep separate cenvatable accounts in terms of Rule 6. On being pointed out by the Revenue, the appellant forgone their claim to the exemption notification and paid duty accordingly. Merely because the appellant did not pay the duty at the time of clearance, in my views, should not be adopted as a reason for confirmation of demand in terms of Rule 6(3) of CCR. The only consequence of non-payment of duty at the time of clearance of the goods would be confirmation of interest from that date till the date of payment of duty. Learned counsel agrees to pay such interest. - Impugned order is set aside - Decided in favour of assessee.

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• 2015 (10) TMI 1826 - CESTAT AHMEDABAD
  

  Condonation of delay - Bar of limitation - Held that:- It is seen that the Clause (b) of Section 37C (1) of the Act provides that any decision or the order passed under this Act shall be served by tendering the order or by sending by Registered Post with Acknowledgement Due. In the present case, it is seen that the Panchnama dated 05.06.2008 that Central Excise officers tendered the order in person at the factory premises of the appellant company. But, the security informed that the factory is closed down. So, the said officer affixed a copy of the order at the factory gate, which is within the purview of the service of order or decision, order under Section 37C of Central Excise Act 1944. I find that this fact was not disputed by the applicant. - Supreme Court in the case of M/s Singh Enterprises Vs CCE Jamshedpur - [2007 (12) TMI 11 - SUPREME COURT OF INDIA] held that the Commissioner (Appeals) is not empowered to condone the delay beyond the prescribed period of limitation. - Decided against assessee.

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• 2015 (10) TMI 1824 - CESTAT AHMEDABAD
  

  Denial of CENVAT Credit - duty paying documents - Held that:- The main grievance of the Revenue is that the Bill of Entry was in the name of M/s. J.J. Polyplast, Daman who had surrendered the registration on 01.6.2005 and they have not issued the invoices. On perusal of the findings of the Commissioner (Appeals) as mentioned above, I find that there is no dispute that the Respondent availed CENVAT credit on the basis of the invoices issued by M/s. J.J. Polyplast, Bhiwandi a sister unit of M/s. J.J. Polyplast, Daman who was a registered during the material time. The Commissioner (Appeals) has clearly recorded that there is no dispute as regards the receipt and utilisation of the inputs in the final product. It is also seen that the Respondent has availed credit on the basis of proper Central Excise invoices and therefore, there is no reason to deny the CENVAT credit to the Respondent. - No reason to interfere with the order of Commissioner (Appeals) - Decided against Revenue.

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• 2015 (10) TMI 1823 - CESTAT AHMEDABAD
  

  Denial of CENVAT Credit - Invalid documents - Held that:- When the Tribunal categorically directed the Commissioner (Appeals) to verify the fact of taking credit on the basis of valid documents, then it is the duty of the Commissioner (Appeals) to verify the documents himself and he should not proceed on the basis of findings of the Adjudicating authority and upheld the Adjudication order dt.17.02.1999. - Commissioner (Appeals) to verify the fact of taking credit on the basis of valid documents as directed by the Tribunal in earlier order dt.21.09.2005. He would also consider the submissions of the appellant, in respect of imposition of penalty. The Commissioner (Appeals) is directed to decide the appeal as expeditiously as possible. - Matter remanded back - Decided in favour of assessee.

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