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Central Excise - Case Laws
Showing 241 to 260 of 317 Records
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2016 (8) TMI 386 - CESTAT ALLAHABAD
Cenvat credit - Recovery - wrong availment on rectified spirit - Whether ethyl alcohol and rectified spirit are two different commodities or one and the same commodity - Held that:- the ISI specifications had divided ethyl alcohol into several kinds of alcohol. Beverages and industrial alcohols were clearly and differently treated. Rectified spirit for industrial process was defined as spirit purified by distillation having a strength of not less than 95% by volume of ethyl alcohol. Therefore, it is very clear from the observation of Hon'ble Supreme Court that ethyl alcohol and rectification spirit are one and the same. Hence,the rectified spirit which is not used for human consumption is nothing but ethyl alcohol and is finding place in tariff item no. 22072000. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 385 - CESTAT MUMBAI
Refund - Rule 5 of Cenvat Credit Rules 2004 read with Notification No. 4&5/2006-CE(NT) dated 14.3.200 - Export of goods partly under claim of rebate/partly under bond or UT-1 - Held that:- in view of the clear provision of Rule 5 read with the Notification issued thereunder, the refund is admissible only on the goods exported under bond and to the extent of duty paid on the input which is used in the export goods. In the show cause notice as well as in the adjudication order it is clearly mentioned that 85% to 90% of the exports were made under bond/undertaking and under claim of rebate. However, the adjudicating authority as well as the Commissioner (Appeals) rejected the claim treating the entire export under claim of rebate, which is not correct. As regard the goods exported under bond, the appellant is entitled for the refund, however the refund related to the export made under claim of rebate is not admissible. - Appeal disposed of by way of remand
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2016 (8) TMI 384 - MADRAS HIGH COURT
Whether the Tribunal failed to appreciate the law that the omission of Section 3A of the Central Excise Act, 1944 is an Amendment to the Central Excise Act, 1944 and is saved by Section 6A of the General Clauses Act, 1897 - Held that:- by applying the decision of Hon'ble Supreme Court in the case of M/s.Shree Bhagwati Steel Rolling Mills vs. Commissioner of Central Excise & Anr. [2015 (11) TMI 1172 - SUPREME COURT], upholding compounded levy scheme, striking down the notification as invalid and inoperative, should be treated as a nullity. Therefore, the answer is affirmative and requires to be adjudicated afresh, by the Tribunal. - Matter remanded back
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2016 (8) TMI 383 - CESTAT BANGALORE
Reversal of Cenvat credit - Contravention of Rule 6(1) & 6(2) of CENVAT Credit Rules 2004 - clearance of upholstery furniture to SEZ developer after availing credit on inputs and without payment of duty, in the nature of export - non-maintainance of separate accounts of receipt, consumption and inventory of inputs - Held that:- in the light of the decisions by the Tribunal and the Hon’ble High Court of A.P in the case of Sujana Metal Products Ltd [2015 (3) TMI 781 - ANDHRA PRADESH HIGH COURT] and also the decisions of Hon’ble Chhattisgarh High Court in the case of UOI Vs Steel Authority of India Ltd [2013 (5) TMI 460 - CHATTISGARH HIGH COURT] and Hon’ble High Court of Karnataka in the case of CCE Vs Fosroc Chemicals (India) Pvt Ltd [2014 (9) TMI 633 - KARNATAKA HIGH COURT], the amendment to Rule 6(6) to include SEZ developer with effect from 31.12.2008 has retrospective effect from 2004 onwards and therefore no reversal of credit in respect of inputs used in the manufacture of goods supplied to SEZ developer is required under law. - Decided in favour of appellant
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2016 (8) TMI 382 - CESTAT NEW DELHI
Validity of impugned order - Violation of principle of natural justice - Order passed in the absence of appellants - absence of relied upon and resumed documents (RUD) - Held that:- the impugned order stand passed in the absence of the appellants as such without observing as to who is at fault, the assessee or the Revenue, we deem it fit to set aside the impugned order and remand all the matters to the original Adjudicating Authority for de-novo consideration. Needless to say that the appellant would be provided with the production/dispatch register, delivery challan and delivery advices. - Appeal disposed of by way of remand
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2016 (8) TMI 381 - CESTAT CHENNAI
Cenvat credit - Whether the appellants are eligible for taking Cenvat credit of 100% on Capital goods in the first year itself - Held that:- since the appellants have taken 100% Cenvat credit in the first year itself, whereas in terms of Rule 4(2) of Cenvat Credit Rules, 2004, they were required to avail 50% of the credit in the first year and balance 50% in the subsequent financial year (s). However, the fact that they availed the entire 100% credit in the first year will not make balance 50% as non-available to the appellant. In the case law relied upon by the Ld. Advocate, CCE Vs. Indian Oil Corporation Ltd., the Hon’ble Gujarat High Court has dealt the issue in favour of the appellant assessee. It interpreted Rule 4(2) of CCR, 2004, that it is not necessary that the capital goods be put to actual use for the manufacture of final product, only such goods should be in possession and use of the manufacturer of a final product. Rule envisages availability of Cenvat credit to a manufacturer on receipt of capital goods once the goods are received and as long as such goods are in possession and use of the manufacturer of final product. Appeal allowed by way of remand
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2016 (8) TMI 380 - CESTAT, MUMBAI
Valuation - Clearance of goods on job work basis - no evidence provided that the goods cleared on job work basis are not the same as the goods cleared otherwise - Appellant paid duty in terms of the decision of Hon'ble Apex Court in the case of Ujagar Prints Ltd. Vs. Union of India & others [1989 (1) TMI 124 - SUPREME COURT OF INDIA] - Held that:- valuation is not an exact science. Some amount of guess work exists in valuation. Therefore, different methods are prescribed by Valuation Rules. These rules are prescribed in order to find out the actual realization which realization constitutes the basis of assessable value. At the same time one must keep in mind that different methods prescribed have to converge to a common valuation. Thus the correct method of ascertainment of value would be the method prescribed by the Hon'ble Apex Court in the case of Ujagar Prints Ltd. In view of the above the assessment done by the appellants is correct and as per law. - Decided in favour of assessee
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2016 (8) TMI 379 - CESTAT CHENNAI
Existence of two SCNs - Invokation of extended period of limitation - Demand of differential duty - non-inclusion of warranty charges in the assessable value of goods - Held that:- it is pertinent to see that the Two SCNs cannot be issued on the same issue and by invoking the extended period in both SCNs and second SCN becomes infructuous. There is no provision to confirm the demand in both SCNs. He cannot rely on both the SCNs one for confirming the demand and the other SCN for imposing personal penalties. - Appeal allowed by way of remand
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2016 (8) TMI 350 - CESTAT ALLAHABAD
Rectification of mistake - 3 issues raised but only two were decided - Issue not decided was demand of SAD on value of goods transferred from appellant's EOU Unit to different C&F agents in different states - sales tax paid at the time of sale - Appellant submitted that no SAD was payable - Held that:- it is evident from the record that though the appellant had raised the issue that no SAD is payable on goods stock transferred to other states, however, no finding with respect to this was recorded in the Final order dated 20.07.2015. Further, there is no dispute on merit regarding admissibility of this claim of the Appellant as the Department has already accepted the correctness of the same in its comments/ verification report. therefore, the applications for rectification of mistake filed by the appellant have to be allowed. - ROM allowed
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2016 (8) TMI 349 - CESTAT NEW DELHI
Cenvat credit - availability - duty paid on various iron and steel items used for fabrication of capital goods - Held that:- the issue stand covered by the recent decision of Hon'ble High Court of Gujarat in the case of Mundra Ports & Special Economic Zone Ltd. vs. CCE & Cus [2015 (5) TMI 663 - GUJARAT HIGH COURT] and by the precedent decision of same assessee's case. Therefore, in any case, even if the said items are held to be used as supporting structures, the cenvat credit cannot be denied. - Decided against the revenue
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2016 (8) TMI 348 - CESTAT BANGALORE
Demand - Default in monthly payment of duty which was paid belatedly - Contravention of provisions of Rule 8(3A) of Central Excise Rules 2002 - Held that:- the issue is no more res integra and stands settled in favour of the appellant. By following the law laid down by the Honb'le High Court of Gujarat in the case of Indsur Global Ltd. Vs. Union of India [2014 (12) TMI 585 - GUJARAT HIGH COURT], which was subsequently followed by the same High Court in the case of Shreeji Surface Coatings Pvt. Ltd. Vs. Union of India [2014 (12) TMI 656 - GUJARAT HIGH COURT] and thereafter followed by the Madras High Court in the case of A.R. Metallurgicals P Ltd. Vs. CESTAT, Chennai [2015 (5) TMI 661 - MADRAS HIGH COURT] and also followed by the Tribunal in the case of Neesa Infrastructure Ltd. Vs. CCE and Om Shakthi Hydraulics Pvt. Ltd. Vs. CCE, Bangalore-II [2016 (5) TMI 838 - CESTAT BANGALORE], the impugned order is unsustainable in law and set aside. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 347 - CESTAT NEW DELHI
Demand - Clearance of waste and scrap - Availment of Cenvat credit without payment of duty - Demand confirmed by various authorities below on the ground that the waste and scrap has arisen from mechanical working of metal and hence, properly classifiable under Chapter Heading 7204.90 and therefore, liable to payment of duty.
Held that:- the confirmation of demand has been done by travelling beyond the grounds made in the show cause notice and hence cannot be upheld on account of violation of principle of natural justice. The appellant has contended that the waste and scrap has arisen during repair and maintenance work of the capital goods. Some portion of the scrap has also arisen on account of dismantling old and used machinery. It is also well settled that scrap arisen in such cases will not be liable to payment of excise duty as has been held by this Tribunal in many cases. - Decided in favour of appellant
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2016 (8) TMI 346 - CESTAT NEW DELHI
Demand - Revarsal of Cenvat credit under Rule 3(5) of the Cenvat Credit Rules, 2004 - Reorganization of part of assets of DTA into 100% EOU - Capital goods in which Cenvat credit was availed in the original DTA unit was segregated as part of the two EOUs - Held that:- Rule 3(5) of the Cenvat Credit Rules contemplates payment of an amount equal to the credit availed in respect of inputs and capital goods when such goods are removed as such from the factory. The thrust of the appellant’s argument is that the removal contemplated in the above Rule is the physical removal, of the inputs or capital goods on which credit is taken, from the factory of the manufacturer. In the present case in as much as the inputs and capital goods were not removed physically from the factory, the mischief of Rule 3(5) will not be invited. Also the issue is no longer res-integra in as much as identical issue has been considered time and again and decided in favour of the appellants by this Tribunal. Hence, in as much as EOUs are entitled to take as well as utilize Cenvat credit on inputs as well as capital goods, for payment of duty on the DTA clearances, the demand of duty made in the impugned order, if paid, will be available as Cenvat credit to the 100% EOUs. - Decided in favour of appellant
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2016 (8) TMI 345 - CESTAT NEW DELHI
Excisability - Aluminium Dross and Skimming - arose during course of manufacture of aluminium - Held that:- the issue is no longer res-integra and decided by the Tribunal in respondent's own case which squarely settled the matter in favour of the respondent where it was held that as per Apex Court judgment in the case of Union of India v. Indian Aluminium Co. Ltd., the dross and skimming of Aluminium are neither goods nor marketable commodities and, hence, are not liable to Excise duty. - Decided against the Revenue
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2016 (8) TMI 344 - CESTAT ALLAHABAD
Production capacity based duty - Quantum - Pan Masala - denial of pro-rata benefit of duty due to failure to pay duty in time - closure of factory for the part of month - Held that:- the issue is covered in favour of appellant in the earlier order of Tribunal in Shri Flavours Pvt. Ltd. vs. CCE Delhi-IV [2014 (4) TMI 417 - CESTAT NEW DELHI]. Therefore, by following the decision of Hon'ble Delhi High Court in the case of CCE Vs. Shakti Fragrances Pvt. Ltd. [2015 (10) TMI 1040 - DELHI HIGH COURT], the failure to make the payment of duty on fifth day of every month cannot result in depriving the assessee of the pro rata abatement of duty which he is in any way entitled to. Hence, the impugned order is set aside and the appellant is required to pay duty on pro-rata basis for 12 working days. - Decided in favour of assessee.
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2016 (8) TMI 343 - CESTAT ALLAHABAD
Cenvat credit - Entitlement - Steel goods - Held that:- by relying on the finding of Hon'ble Madras High Court in the case of India Cements Ltd. Vs. Cestat [2015 (3) TMI 661 - MADRAS HIGH COURT] and Hon'ble Gujarat High Court in the case of Mundra Port & Special Economic Zone Ltd. Vs. CCE [2015 (5) TMI 663 - GUJARAT HIGH COURT], Shape & Section, angles, M.S. Plates/rounds, beams, rails etc. and also welding electrodes used in fabrication/construction of capital goods including structural support, etc. for the period Feb/ 2007 to June/2009 are entitled to Cenvat credit.
Limitation - Demand - Invokation of extended period of limitation - Held that:- as their are existed contrary judgements of this Tribunal, extended period of limitation is not invokable. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 295 - CESTAT BANGALORE
Cenvat Credit - payment of duty where processing is not amounting to manufacture - they had cleared the fabrics cut to required sizes - payment of duty which was not less than cenvat credit taken on the fabrics - whether amount to reversal of credit or not - Held that:- the case is squarely covered by various judgments of the Tribunal. The demand raised by the Revenue does not survive because the credit taken by the appellant was reversed by paying duty at the time of clearance of the goods. That the items were not input is also not of much consequence inasmuch as the appellant could have also dealt with these items as a trader and the cenvat provisions would allow the same treatment. Further since the equal amount of credit has been paid at the time of removal of these goods, the requirement of law of reversing credit at the time of clearance of inputs as such remain satisfied. therefore, the demand and penalties are set aside. - Decided in favour of appellant with consequential relief.
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2016 (8) TMI 294 - CESTAT AHMEDABAD
Cenvat credit - eligibility - duty paid inputs procured indigenously and used in the manufacture of finished goods by the loan licence - export of goods by the principal manufacturer, against DFIA - trade notice issued by the DGFT bearing No.02/AM 07 dt.02.02.2007 - withdrawal of restriction on availing cenvat credit under FTP - whether in the nature of retrospective or prospective - Held that:- it is found from the impugned order of the learned Commissioner (Appeals) that at the time of passing of the said order, the retrospective amendment was not available before him.
Besides, except referring to the interim Trade Notices issued by DGFT, detailed analysis of relevant facts and the issues raised by the Appellant in their grounds of Appeal had not been addressed by the Ld. Commissioner(Appeals) leading to a cryptic Order. Therefore, in the interest of justice, the case needs to be remanded to the learned Commissioner (Appeals) to consider the arguments on record in detail and also the retrospective amendment to the notification and provisions of Foreign Trade Policy, while deciding the issue afresh on merit. - Appeal allowed by way of remand
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2016 (8) TMI 293 - CESTAT BANGALORE
Refund of unutilized Cenvat credit - closure of factory - due to suffering heavy losses, the appellants stopped their production - surrender of registration certificate - Held that:- in view of the decision of Hon'ble High Court of Karnataka in the case of Union of India V. Slovak Trading Co. Pvt. Ltd. [2006 (7) TMI 9 - KARNATAKA HIGH COURT] which was affirmed by Supreme Court in [2007 (1) TMI 556 - SUPREME COURT], there is no express prohibition in terms of Rule 5. Also the Tribunal is fully justified in ordering refund partly in the light of the closure of the factory and in the light of the assessee coming out of modvat scheme. Therefore, the refund cannot be denied. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 291 - CESTAT KOLKATA
Who is liable to pay duty - conversion of proprietorship to partnership firm and then from partnership firm into company - the offence was committed when the unit was existing as a proprietorship - Whether of predecessor or of present appellant - Held that:- as per assignment of Business agreement, entered between M/s. Laxmi Electronics (Partnership concern) and M/s. Laxmi Electrovision Private Limited (the present appellant), the entire business of M/s. Laxmi Electrovision was taken over by the appellant including liabilities. The words morefully described in Schedule A has to be understood as, including the liabilities specified in Schedule A to this agreement but cannot be limited to only those liabilities. Further all the registrations, licenses of the earlier manufacturers, including machinery stand transferred to the present appellant. Therefore, the present appellant cannot argue that any offence committed by their predecessors cannot be a charge on them.
Liability gets fixed on a person who takes responsibility to obtain central excise licence/Registration. - In the present case there is no evidence on record that a new Central Excise licence/Registration was obtained by the present appellant. On the contrary transfer of licence/Registrations to the successor are also transferred which will legally mean the responsibilities/liabilities casted under Central Excise licence/Registration also gets transferred to the present appellant. - Decided against the appellant
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