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Central Excise - Case Laws
Showing 241 to 260 of 278 Records
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2016 (9) TMI 131 - CESTAT, MUMBAI
Whether the appellant is required to pay differential Central Excise duty on the amount of transportation charges collected by debit notes - Held that:- it is the claim of the appellant that the transportation charges which are claimed by them by debit notes are actuals and on being informed by the customers while the findings recorded by the first appellate authority are not at all indicating that they have considered those submissions to arrive at a conclusion. It is also noticed that the first appellate authority in the impugned order has referred to some job conversion on behalf of SAIL and the valuation thereof. Therefore, the impugned order is totally in tangent to the issue which was raised before him. Hence, set aside. - Appeal allowed by way of remand
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2016 (9) TMI 130 - CESTAT CHANDIGARH
Whether the goods have been manufactured in the premises of M/s Uniroyal Pharmaceuticals Ltd. as job worker who has paid the duty at the time of clearance of the goods from the factory or not - Held that:- The issue has been examined by this Tribunal in the case of M/s Dolphine Laboratories vs. C.C.E., Ahmedabad – [2005 (3) TMI 222 - CESTAT, NEW DELHI] and Remidex Pharma Ltd. vs. C.C.E., Bangalore [2005 (7) TMI 249 - CESTAT, BANGALORE] wherein it has been held that loan licensee has supplied the raw materials to the job worker who manufacture the goods as per the specification of the loan licensee on getting processing charges, therefore, the manufacturer is the job worker who carries out entire manufacturing process in their factory. Therefore, the job worker is the manufacturer and required to pay duty at the value on which they have cleared the goods to loan licensee. It is also found that the said decision in the case of Remidex Pharma Ltd. (supra) has been affirmed by the Hon’ble Apex Court reported in [2006 (8) TMI 590 - SUPREME COURT]. As the issue has attained finality, therefore, we find no infirmity in the impugned order. - Decided against the Revenue
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2016 (9) TMI 129 - CESTAT CHANDIGARH
Revarsal of Cenvat credit - invokation of Rule 6(1) of the Cenvat Credit Rules, 2002 - appellant opted to avail exemption under Notification No. 30/2004-CE dated 9.7.2004 which provided exemption to the product manufactured by them - Cenvat credit availed on inputs lying in the stock, in process and contained in the final products, on the date of opting for exemption - Held that:- the Rule 9(2) of Cenvat Credit Rules, 2002 produced by the Revenue prescribed reversal of credit only in case where the exemption is based on value or quantity of clearances in a financial year. In the circumstance, we find that the decision of the larger bench of the Tribunals the case of Ashok Iron and Steel Fabricators [2002 (1) TMI 91 - CEGAT, NEW DELHI] is squarely, applicable to the instant case. Also it is found that the grounds of appeal do not contradict the averment made by the respondents before the Commissioner (Appeals). Therefore, if the respondent have used the inputs on which credit was taken only on dutiable finished goods, the question of invoking Rule 6 (1) does not arise. - Decided against the Revenue
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2016 (9) TMI 128 - CESTAT CHANDIGARH
Imposition of penalty - Rule 25 & 26 of Central Excise Rules 2001 - appellants manufacturing excisable goods not registered with the department - clearance of excisable goods without payment of duty which were ultimately exported - Held that:- as the issue is no longer res integra and decided by the Hon’ble High Court of Gujarat in the case of C.C.E & Cus. Vs. Saurashtra Cement Ltd. [2010 (9) TMI 422 - GUJARAT HIGH COURT] which was affirmed by the Hon’ble Apex Court in [2014 (1) TMI 264 - SUPREME COURT OF INDIA] and as observed by the authorities below that there was no intention to evade payment of duty on the part of the respondent, the provisions of Rule 25 of Central Excise Rules, 2001 are not invokable and as such the penalties are not imposable. - Decided against the Revenue
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2016 (9) TMI 127 - CESTAT NEW DELHI
Validity of Commissioner (A) order - Commissioner (Appeals) could have given a finding on merits based on available evidence but remanded the matter further to the Assistant Commissioner - non-compliance of remand direction of CESTAT - Held that:- the action of the Commissioner (Appeals) is fully unjustified and beyond the scope of remand directions given by the Tribunal. The impugned order expressed total helplessness in performing a judicial work. The Jurisdictional Authorities have contributed to such unfortunate situation. Without further dwelling upon the impropriety or the sustainability of the findings of the Commissioner (Appeals) it is necessary that the finding on the merit has to be arrived at in this case in the interest of justice. The inability of Commissioner (Appeals) to appreciate and implement the directions of the Tribunal in their remand order by itself should not lead to closure of all proceedings. Appreciating this position, I find the matter has to reach a finality by a fresh decision by the Jurisdictional Original Authority who will examine all evidences keeping in mind the remand order already passed by the Tribunal and pass a fresh order within two months of the receipt of the order. - Appeal allowed by way of remand
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2016 (9) TMI 126 - CESTAT BANGALORE
Refund / Rebate - Whether appropriation of rebate sanctioned in cash against the custom duty arrears in terms of Section 142(1) of the Customs Act 1962 is in order - As per Revenue, the appropriation is permitted in accordance with law whereas as per the appellants the appropriation of rebate of refund cannot be done against the customs duty arrears by invoking Section 142 of the Customs Act - Held that:- it is found that all the orders against which appropriation is made have been challenged by the appellant before this Tribunal and the stay has been granted by this Tribunal and they are pending for final disposal and the demand has not attained finality. Further it is a settled position of law as held in the various cases that the appropriation of refund amount towards duty demand pending in other cases which has not attained finality is not legal and proper. Therefore, the appropriation of refund claim against disputed pending custom appeals is not sustainable in law as the demands in those cases have not reached finality. - Decided in favour of appellant
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2016 (9) TMI 125 - CESTAT NEW DELHI
Cenvat credit - duty paid in respect of various iron and steel articles - used for construction of civil structures as supporting structurals - Held that:- in view of the decision of Larger Bench of Tribunal in the case of Vandana Global Ltd. Vs. CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] which was considered by the Hon'ble Gujarat High Court in the case of Mundra Ports & Special Economic Zone Ltd. [2015 (5) TMI 663 - GUJARAT HIGH COURT] and stands over-ruled observing that the amendment issued on 7.7.2009 cannot be held to be clarificatory amendment and as such, would be applicable only retrospectively. As such, without going into the factual aspect as to whether the iron and steel articles were used for construction or as supporting structurals, we are of the view that the same would be entitled to credit inasmuch as the period in the present appeal is before 7.7.2009.
Period of limitation - demand - Held that:- the lower authorities have invoked the extended period only on the sole ground that the appellant was aware of the fact that the credit is not admissible and still, they took the credit. We find no appreciable reasons for observing so. Admittedly, the credit was being availed after reflecting the inputs in the statutory RG-23-D Part I and Part-II records. The fact of availment of credit was also being reflected in the statutory returns being filed with the Revenue. Non-disclosure of a fact for which there is no column in the records or in the returns, does not ipso facto lead to the conclusion that such non-disclosure is with malafide intention, especially, when there is no legal obligation on the part of the assessee to disclose a particular fact. Therefore, in view of the abve mentioned decisions, no malafide can be attributed to the assessee and longer limitation period would not be available to the Revenue. - Decided in favour of appellant with consequential rerief
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2016 (9) TMI 93 - CESTAT MUMBAI
Valuation - Includability - in the assessable value of the goods i.e. monoliths/signages cleared from the factory - amounts collected by the respondent as charges towards erection, installation and commissioning charges and pre-delivery inspection charges - Held that:- the issue is now squarely covered by the judgment of the apex court in the case of Thermax Ltd. vs. CCE [1998 (4) TMI 134 - SUPREME COURT OF INDIA] wherein it was held that the installation and commissioning charges have to be treated as assessable value of the goods supplied by the appellants are not correct, so the installation and commissioning charges could not be included in the value of the goods. Therefore, in view of the same, the impugned order is correct and legal and does not suffer from any infirmity. - Decided against the Revenue
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2016 (9) TMI 92 - CESTAT MUMBAI
Classification - Is the product manufactured by the appellant is RMC (Ready mix concrete) or concrete mix and whether benefit of Notification No. 4/97 dated 01.03.1997 is available to the appellant in respect of the product manufactured by them - Held that:- the mix manufactured by the appellant is specially made for Mahindra & Mahindra and is manufactured with precision of a high standard and is delivered to the customer at his site. Thus prima facie it fulfills the criteria identified by the Hon’ble Supreme Court in its decision in the case of Larson & Toubro [2015 (10) TMI 612 - SUPREME COURT]. In the instant case the appellants are also adding plasticizers to improve the quality of the concrete. In view of above it is held that the product manufactured by the appellants is RMC and the appellants are not entitled under Notification No. 4/97 dated 01.03.1997.
Invokation of extended period of limitation - Held that:- the decision of the Hon’ble Supreme Court in the case of Continental Foundation Jt. Venture [2007 (8) TMI 11 - SUPREME COURT OF INDIA] is squarely on this issue. Therefore, as the period as well as the issue involved is roughly the same. Relying upon the above said decision of the Hon’ble Supreme Court we hold that the extended period of limitation cannot be invoked in this case. - Decided in favour of appellant
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2016 (9) TMI 91 - CESTAT MUMBAI
Cenvat credit - Catering Services’ and ‘Tour Operator’ (Bus) services - part of an amount was recovered from the employees - Held that:- the issue is no longer res integra as the judgements in the case of M/s. Ultratech Cement [2010 (10) TMI 13 - BOMBAY HIGH COURT ], wherein it was held that once the Service Tax is borne by the ultimate consumers of the service, namely, the worker, the manufacturer cannot take credit of that part of the service tax, which is borne by the consumer, M/s Castrol India Ltd. [2015 (9) TMI 1335 - CESTAT MUMBAI] and Cema Electric Lighting Products India P. Ltd. [2013 (4) TMI 328 - CESTAT AHMEDABAD] have held in favour of Revenue. The argument that there is no restriction in the Cenvat Credit Rules, 2004 does not come to the rescue of the appellant as the law is already settled. Since they have taken inadmissible credit, the penalty under Rule 15(1) of Cenvat Credit Rules, 2004 which does not require the presence of mens rea is also upheld. - Decided against the appellant
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2016 (9) TMI 90 - CESTAT MUMBAI
Valuation - demand - for the period January 1997 to September 1997 - fire detection & alarm system installed at various sites - purchased/procured various items/components like photo electronic smoke detectors, thermal detectors, addressable monitor modules fault isolator modules, fire alarm panel, repeater panels, electronic hooters etc - Held that:- the issue is squarely covered by the judgements of this Tribunal in the case of Zicom Electronics Security Systems Ltd. [2006 (6) TMI 57 - CESTAT,MUMBAI] and Datamatics Information Tech Ltd. [2005 (7) TMI 168 - CESTAT, MUMBAI]. In these two cases, the Tribunal was considering whether procurement of components of burglar, fire alarm systems and CCTV systems and installing the same at the site of the customer value is to includible or not in the value of manufactured goods and it was held in favour of the assessee. Nothing was brought to our notice that these judgements are upturned by any higher judicial forum. Similarly procured products or components are used in the current appeal and installed at the site of the customer, the ratio will apply and we hold on merits the appeal succeeds, as in essence the demand of duty is on the presumption that fire alarm system is manufactured for value taken is of bought-out items.
Invokation of extended period of limitation - Held that:- we find that the earlier orders of the Commissioners of Central Excise, Pune I and III, in an identical issue and in respect of very same assessee were not contested is the claim. Nothing was brought to our notice that these orders are contested in higher judicial fora. Therefore, since the demand for the earlier period (by invoking extended period) was dropped by two Commissioners of Central Excise, as adjudicating authority, the current show-cause notice which is invoking the extended period for the demand of duty is unsustainable on limitation also. - Decided in favour of appellant
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2016 (9) TMI 89 - CESTAT CHENNAI
Cenvat Credit - Whether the asbestos sheet is covered under the ambit of capital goods or not - Held that:- the adjudicating authority in his findings clearly brought out what are capital goods and came to the conclusion that Asbestos sheets are not capital goods and the credit so availed on these items is recoverable. Further he has invoked extended period for suppression of facts with an intent to evade payment of duty and hence penalised them under Rule 15 (2) of CCR, 2004. I totally agree with the order passed by the First Appellate Authority and it is also a fact that there has been a specific exclusion in the definition of capital goods. The ld. Commissioner (A) is therefore right in holding that if the inputs were to include every product which is somehow related to the premises where the manufacturing process goes on, then there may not be a need to provide a definition of the term capital goods and therefore, the acceptance of the contention of the assessee would render the definition of the term “capital goods” to be redundant as well as the provisions relating to extending the benefit of Cenvat credit to the capital goods.
Invokation of extended period of limitation - Held that:- the contention of the appellant that the credit was availed in Oct 2011 and the notice demanding recovery of credit was issued on 3.6.2014; that the availment of credit was reflected duly in ER 1 returns and that the cenvat credit were regularly scrutinised by audit officials has nowhere been contested to be wrong by the revenue. It is also to be borne in mind that the appellant mill is managed by the Govt. of Tamilnadu. Therefore, the invocation of extended period is unsustainable. - Decided in favour of appellant
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2016 (9) TMI 88 - CESTAT MUMBAI
Demand of duty - clearance of waste solvent in the guise of bio-manure - amount has been appropriated against sanctioned rebate claim of the other appeals - Held that:- the taxability / dutiability of the waste solvent has been decided in favour of the assessee in CCE v. Aurobindo Pharma [2016 (8) TMI 1017 - CESTAT ALLAHABAD]. Hon'ble High Court of Andhra Pradesh has in a speaking order categorically recorded that waste solvent that arises during the course of manufacturing of bulk drugs are not dutiable. Therefore, the impugned orders wherein the demand of duty is confirmed are unsustainable and liable to be set aside.
Since the impugned orders wherein the demand of duty liability has been set aside, appeals No. E/89375/13 and E/85614/15 consequently needs to be allowed and rebate amount appropriated against pending demand of appeals are to be held as incorrect. - Decided in favour of appellant with consequential relief
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2016 (9) TMI 87 - CESTAT MUMBAI
Imposition of penalty - appellant contend that it is purely a matter of interpretation - Cenvat Credit in respect of construction services for the construction of guest house, staff quarters, flooring work at colony, septic tank of security barracks, club house, bank building, hawankund shed, temple etc. - Held that:- in this matter I observe that there are various contradictory judgments of Tribunals on the similar issue and Cenvat credit on services received in residential complex/colony is allowed in number of cases by Tribunal. It is purely a matter of interpretation of statute and hence no penalty is imposable in the instant case.
Invokation of extended period of limitation - Demand - Cenvat credit - construction services for the construction of guest house, staff quarters, flooring work at colony, septic tank of security barracks, club house, bank building, hawankund shed, temple etc. - relation to manufacture of final product - Held that:- it is found that during the relevant period the appellant have been regularly submitting all the cenvatable invoices along with their monthly ER-1 return, as evident from the covering letter of monthly ER-1 return. The Ld. Commissioner (Appeals) admitted that on the issue of Cenvat Credit on construction services, there were contradictory judgments and the issue involved is purely the matter of interpretation of statute. This finding of the Ld. Commissioner has not been challenged by the Revenue, therefore it attained finality. With this finding also suppression of fact cannot be alleged on the appellant. For this reason also the extended period of demand could not have been invoked. Therefore, in the present case, for the demand of period July 2005 to January 2008, the show cause notice was issue on 8.12.2009 is clearly time bar. Since the entire demand is not sustainable on the ground of time bar itself, I do not feel necessary to deal with merit of the issue on admissibility of Cenvat Credit. Hence the impugned order is set aside. - Decided in favour of appellant
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2016 (9) TMI 86 - CESTAT AHMEDABAD
Excisability - Press-mud - arose during the process of manufacture of excisable goods i.e. Sugar, and sold on consideration - Held that:- the issue is squarely covered by the decision of the Hon'ble Supreme Court in the case of UOI vs. DSCL Sugar Limited [2015 (10) TMI 566 - SUPREME COURT] read with the decision of the Hon'ble Allahabad High Court in the case of CCE, Lucknow vs. Kisan Sahakari Chini Mills Limited [2013 (10) TMI 1197 - ALLAHABAD HIGH COURT]. - Decided in favour of appellant
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2016 (9) TMI 85 - CESTAT HYDERABAD
Cenvat credit - 'MS Flats', 'MS Sheets', 'MS Bolt' and 'MS Plate Chequered' used in the manufacturing unit - Held that:- the issue is no longer res integra and has been settled in favour by a plethora of judgments, including that of CCE & C, Visakhapatnam Vs Rastriya Ispat Nigam Ltd., [2011 (4) TMI 1098 - ANDHRA PRADESH HIGH COURT] where the Hon'ble High Court inter-alia held that credit on steel sheets used in repair and maintainance of capital goods is eligible for credit. Even this very Bench, in the case of CCE & ST, Visakhapatnam vs HPCL [2016 (6) TMI 606 - CESTAT HYDERABAD] and also in the case of Orient Cements Vs CCE & ST, Hyderabad-I has also echoed this view and held that credit of duty on MS items (HR plates/sheets) used for repair and maintainence is admissible. Therefore, by following the ratio laid down in the aforesaid judgments, the appeal is allowed in toto. - Decided in favour of appellant with consequential relief
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2016 (9) TMI 84 - CESTAT MUMBAI
Duty liability - molasses manufactured locally (indigenously) which are consumed in the manufacturing of rectified sprit which is exempted/non-excisable product - Held that:- the appellant has no case as the molasses which are manufactured in the sugar factory are undisputedly consumed for the manufacturing of rectified sprit/alcohol which is non-excisable product. The benefit of Notification No. 67/95 as amended will not be applicable in the case in hand as it requires the final product should be dutiable which in this case is not so; though the part of the rectified sprit is denatured and Central Excise duty is discharged on it.
Invokation of extended period of limitation - Held that:- from the records available it is found that the appellant had kept Revenue authorities informed about the manufacturing activity of molasses and consumption thereof for the manufacturing of rectified sprit and availment of benefit of Notification No. 67/95 as amended. Therefore, the show-cause notice dated 03.01.2001 invoking extended period for demanding duty on molasses for the period in question is blatantly hit by limitation as there was no suppression or misstatement or collusion alleged in the show-cause notice as also no allegation of intention to evade duty on such molasses. - Decided in fvaour of appellant
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2016 (9) TMI 83 - CESTAT HYDERABAD
Refund claim - cess collected under the Agricultural and Processed Food Products Export Cess Act, 1985 which was repealed w.e.f. 01-06-2006 - amount paid under protest - unjust enrichment - FOB value was inclusive of cess and that its incidence had been passed on - Held that:- by following the dictum laid by the Hon'ble High Court in the Asia Pacific Commodities Ltd Vs Asst. Commissioner of Customs, Kakinada-I [2012 (11) TMI 919 - ANDHRA PRADESH HIGH COURT] wherein it was held that the refund of cess is not hit by the bar of unjust enrichment, the facts and issue being identical, we hold that refund of cess is not hit by unjust enrichment and the appellant is eligible for refund. - Decided in favour of appellant
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2016 (9) TMI 82 - CESTAT MUMBAI
Duty liability - parts captively utilised for manufacture of power driven pumps - appellant classified the parts under sub-heading 8413.00 and claimed exemption under Notification 236/86 - parts cleared on payment of 15% duty liability - on scrutiny it was observed that these parts are finished goods themselves i.e. “shaft” and merit classification under sub-Heading 8483.00 attracting duty @ 20% - Held that:- it is found that the identical issue in the case of EIMCO Elecon (India) Ltd. [2008 (11) TMI 492 - CESTAT, AHMEDABAD] this Tribunal has held that classification of modified parts to suit machinery will be classifiable under special Heading of the CETA, 1985. It is also found that the similar issue of classification of pumps - parts and accessories of power driven pumps (such as shaft, worm wheel, nut washer, gasket, valves, bearing etc.) are classifiable in their respective Heading from 84.80 to 84.84 of CETA, 1985 is finding recording on merits by the Bench in the case of Swelore Engg. P. Ltd. [2000 (2) TMI 141 - CEGAT, COURT NO. II, NEW DELHI] which are directly applicable in the case in hand. Therefore, in view of the foregoing and authoritative judicial pronouncements, the impugned order is upheld. - Decided against the appellant
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2016 (9) TMI 81 - CESTAT CHENNAI
Waiver of penalty - imposed under Section 78 of the Finance Act, 1994 - invokation of extended period of limitation - service tax payment for the month of February 2007 was paid in the year 2011 - Held that:- it is found that appellant duly discharged the entire tax liability along with interest as appropriated in the adjudication order. The invocation of longer period is invoked only in respect of short payment of tax pertaining to the month of February 2007. The plea of bonafide of appellant merits consideration when the entire tax liability along with interest stands discharged. Therefore, the quantum of penalty imposed under Section 78 is reduced to 25% - Decided partly in favour of appellant
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