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Central Excise - Case Laws
Showing 281 to 300 of 338 Records
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2017 (7) TMI 189 - CESTAT MUMBAI
Benefit of N/N. 162/86 dated 1.3.1986 - chassis - Held that: - we are not able to express any opinion whether duty was paid or unpaid on chassis that was cleared and reached the premises of the appellant for FRP body building - Learned authority shall examine the same and also the input came to the premises of the appellant as well as the output that was cleared from its premises to ascertain the levy and test the fulfillment of the requirement of the chapter note and the tariff heading 8702 as well as mandate of the notification - appeal allowed by way of remand.
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2017 (7) TMI 188 - CESTAT MUMBAI
Refund of accumulated CENVAT credit - accumulation of credit due to variation of rate of duty between inputs and final product - denial on the ground that firstly refund under Rule 5 of Cenvat Credit Rules shall not be applicable in case the assessee claim rebate or drawback. Secondly, the Rule 5 is applicable only in case where the export is made under bond - Held that: - The accumulation of Cenvat Credit is not due to export of goods as the export of goods was made on payment of duty refund under Rule 5 of Cenvat Credit Rules, 2004 is admissible only when the accumulation is due to non-payment of duty on the export goods that means if the goods is cleared under bond then due to non-payment of duty the cenvat credit gets accumulated and the same is refunded under Rule 5, as per the input output ratio between the export goods and the input used, the Rule 5 provides the refund of accumulated credit only in case the export of goods made under bond and not in the case of export under rebate - Moreover, there is a condition in the notification under Rule 5 that the refund shall not be applicable when the assessee claims the rebate of duty drawback.
The refund was rightly denied to the appellant as the same is not governed by Rule 5 of CCR, 2004 - appeal dismissed - decided against appellant.
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2017 (7) TMI 187 - CESTAT MUMBAI
Valuation - goods cleared by EOU in DTA - Section 3(1) of the Central Excise Act, 1944 - related party - Held that: - At this stage, whether a buyer or seller is related or not, the adjudicating authority is in a better position to examine and decide the modus operandi of the buyer and seller - the proviso to Section 3 of the Central Excise Act having made specific provisions that the goods manufactured by DTA shall be treated as if the goods were manufactured abroad. That shall also be relevant. Therefore learned adjudicating authority shall determine the value in accordance with Section 14 of the Customs Act, 1962 with the assistance of Customs Valuation Rules, 1988 - appeal allowed by way of remand.
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2017 (7) TMI 166 - CESTAT CHANDIGARH
CENVAT credit - inputs - Sulphur Absorption Catalyst used for manufacture of non-dutiable goods - Rule 6 (1) of the CCR - separate account for the receipt, consumption and inventory of inputs meant for use in the manufacture of exempted goods not maintained - whether Sulphur which emerges as a result of the Desulphurisation of HSD is an exempted final product for which input namely Sulphur Absorption Catalyst has been used in its manufacture? - Held that: - Sulphur is a commercial product and sold in the market has not been rebutted by the appellant - Sulphur produced in the process of Desulphurisation is an excisable goods and is not only marketable but actually sold commercially by the appellant. Since it is chargeable to nil rate of duty in the Tariff, it is in the category of exempted goods - demand with interest upheld.
Extended period of limitation - penalty - Held that: - there has been no intimation to the Department before the investigations began - there was clear suppression of material facts by appellant for which extended period has been rightly upheld and penalty has been correctly imposed.
Appeal dismissed - decided against appellant.
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2017 (7) TMI 165 - CESTAT AHMEDABAD
100% EOU - Redemption fine - goods exported are not available for confiscation - Held that: - reliance placed in the case of Commissioner of Central Excise Customs and Service Tax Versus M/s Sanjari Twisters [2017 (4) TMI 219 - CESTAT AHMEDABAD], where it was held that as the goods were not available for confiscation, as the goods were already diverted/permitted to be warehoused without payment of duty, on furnishing the bond and the undertaking and thereafter, the respondent-Unit clandestinely and illicitly diverted the goods to the open market, the goods which otherwise were liable to be confiscated, in lieu of confiscation, redemption fine was imposable - the matter needs to be remanded to the Adjudicating Authority to ascertain the quantum of fine - appeal allowed by way of remand.
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2017 (7) TMI 164 - CESTAT AHMEDABAD
CENVAT credit - denial on the ground that the handling of pipes by the appellant being beyond the place of removal, hence, credit availed on such handling charge, is not admissible - Held that: - the appellant are required to deliver the manufactured pipes at the mega power project site of the customer M/s CGPL and the handing charges are included in the price of the said pipes. Besides, it is the appellant who is required to undertake transportation of the said huge pipes and unload it at the customer's premises - the place of delivery ought to be considered as premises of the Customer.
The appellants are thus eligible to Cenvat Credit of the Service Tax paid on handling charges at the premises of the customer which was denied to them considering the place of removal as the factory gate - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 163 - CESTAT MUMBAI
Rebate of NCCD, AED and Education Cess - denial on the ground that the manufacturer located in the State of Jammu & Kashmir had taken Self Credit of the elements of NCCD, AED and Education Cess under the scheme of N/N. 56/2002-CE - jurisdiction - Held that: - Section 35B(1) Clause (b) excluded the appeals against orders relating to rebate of duty of excise. However, as regard interest on rebate there is no exclusion provided in the said Section, therefore this Tribunal has jurisdiction to decide the appeal on the issue of interest on delayed payment of rebate therefore the objection of the AR, in this regard is hereby rejected. As regard the issue raised by the Ld. AR that the single member bench cannot heard the present appeal as the issue of rate of duty is involved. On careful perusal of the entire case paper, I find that the issue involved in the present case is limited to the grant of interest on the refund which has already been sanctioned there is no issue of rate of duty or interpretation of N/N. 56/2002-CE is involved in the present case - the refund become payable only by virtue of Section 88 of the Finance Act, 2008 by which Rule 18 was amended before that there was no occasion to grant the rebate to the appellant, therefore there is no delay in sanction of the refund.
If there is a delay in sanction of refund/rebate in terms of Section 11BB, the interest is payable to the claimant after expiry of three months from the date of filing the refund application - In the present case the refund application was filed during the period February and April 2006 whereas the refund was sanctioned in June 2009. Therefore there is a delay after expiry of three months from the date of filing application, accordingly the appellant is entitled for the interest in terms of Section 11BB.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 162 - CESTAT MUMBAI
Price variation clause - refund of excess paid duty - rejection on the ground that whatever price was charged at the time of clearance the same cannot be varied for any reason - Held that: - in case of price variation clause on the basis of raw material cost the final price as per the raw material cost has to be taken as transaction value, therefore, the provisional price on which the goods are cleared from the factory and duty paid thereon is not the final price. Accordingly, if there is any excess payment between the value charged at the time of clearance and value finalised on the basis of price variation clause the excess paid duty, if any arise, is refundable. Since the excess paid duty is on the excess value, which is not the price paid or payable by the customer, the unjust enrichment is not applicable - refund allowed.
Liquidated damages - scope of SCN - Held that: - if there is a deduction in the price due to liquidated damages, that is not permitted to be deducted from the transaction value for the reason that the liquidated damages is part of the cost to respondent that has to be considered as their expenditure which will not affect the transaction value. However, since this issue has not been considered by the Commissioner (Appeals), the matter needs to be remanded to the Commissioner (Appeals) only for a limited purpose to decide the issue - matter on remand.
Appeal disposed off - part matter decided in favor of assessee and part matter on remand.
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2017 (7) TMI 161 - CESTAT MUMBAI
CENVAT credit - non-return of Capital goods sent to job-worker under the cover of challan issued u/r 4 (5) (a) of the CCR, 2004, within 180 days - Held that: - Even though no evidence is available on record to show that the period of 180 days is expired from the date of sending the capital goods to the job-worker, as per the challan produced by the learned Counsel, it is clear that when the appellants have paid the duty within 180 days from the date of issue of challan was not expired. In these circumstances, this particular matter needs to be re-verified - matter on remand.
Reversal of CENVAT credit - obsolete input - Held that: - since the input was subsequently removed from the factory as a scrap, the CENVAT Credit is required to be reversed.
Penalty - Held that: - It is also observed that the appellants have paid the duty along with interest. In these circumstances, there is no reason to impose penalty commensurate to the CENVAT amount in respect of written off quantity of inputs - Penalty set aside.
Appeal allowed - decided partly in favor of assessee, partly against assessee and part matter on remand.
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2017 (7) TMI 160 - CESTAT MUMBAI
Clandestine removal - Impregnated, Coated and Laminated fabrics falling under Chapter 59 of the CETA - job-work - the demand in the present case has been made upon the note book seized from the security person Shri Shukla and chits seized from M/s SRS Synthetics - Held that: - The facts of clearance of goods from M/s G.P Textiles to M/s SRS Synthetics are absolutely apparent. Even during the visit of the officers to the premises of M/s SRS Synthetics the consignment of laminated fabrics cleared clandestinely by M/s G. P Textiles was received by M/s SRS Synthetic. Also the same is corroborated by the transport memos and records as well as statements of transporters. The identity of SRS Synthetics as dummy concern floated by Shri Arun Poddar, Proprietor of M/s G.P textiles has been accepted by Shri Arun Poddar and their employee Shri Hemant Shah who was shown as proprietor of M/s SRS Synthetics - the Appellant has disputed the demand on ground of duplication of values or on the ground that the value of goods further cleared by M/s SRS Synthetics has also been included for the purpose of making demand. Thus though I hold that the charges against M/s G.P. Textiles stands proved but the adjudicating authority shall re-quantify the demands in as much as it relates to duplication of demand, inclusion of value of goods from M/s SRS Synthetics since the demand on same already stands confirmed from M/s G.P Textiles - demand upheld.
Demand upon assumption that M/s Gaurishankar Textiles during the period January’ 2001 to July’ 2001 has supplied grey fabrics to them which was not accounted by them - Held that: - possibility of clandestine clearance of laminated fabric processed out of such jobwork goods cannot be ruled out. It is especially in case when the evidence of clandestine clearances has been found from the factory and M/s SRS Synthetic. Thus looking to the overall modus operandi adopted by the Appellant for getting the fabric manufactured on jobwork without any document and clearances made through dummy concern M/s SRS Synthetics, it is clear that the Appellant has used such jobwork fabric in manufacture of laminated/ impregnated fabric and the same was removed without payment of duty. I therefore do not find any lacuna in the order of the adjudicating authority and hold that the demand is sustainable - demand upheld.
Demand made on the basis of cash received by M/s Weave Tex which was not accounted by M/s G.P Textiles in their records - Held that: - the Appellant has nowhere stated about disposal of fabrics received after jobwork from M/s Weave Tex. Since their account nowhere shows the process adopted by them in respect of such goods coupled with the fact that the fabric was used by them in manufacture of coated/ impregnated fabric, it is absolutely clear that the fabric was used in manufacture of their final product i.e coated/ impregnated fabric which was clandestinely removed. I therefore do not find any reason to interfere with the impugned order and hold that the demand is sustainable - Also the goods found short in the factory of M/s G.P. Textiles were due to the reason of clandestine removal and hence the demand is sustainable. For the same reason the goods seized from premises of M/s S.R.S Synthetics having been cleared from M/s G.P. Textiles are also liable to be confiscated - demand upheld - confiscation upheld.
Penalty - Held that: - since the duty demand is sustainable and the instant case is of clandestine removal against M/s G.P. Textiles, hence the penalty under Section 11AC is also applicable against them - As regard penalty under Rule 27 and Rule 25 I find that the same are also justified for the above reason. Further the goods seized from the premises of M/s SRS Synthetics being removed clandestinely and non duty paid are liable for confiscation and therefore I uphold the confiscation - penalty and confiscation upheld.
As regard penalty upon M/s Weave Tex and its partner Shri Yogesh Kabaria, I find that they have contested the penalty mainly on the ground that the grey fabrics is exempted from duty whether the same is manufactured on own account or on jobwork - Held that: - I find that the transactions between M/s Weave Tex and M/s G.P Textiles stands recorded in books and bank passbook of M/s Weave Tex. Further there is no ground to hold that the processed goods shall be used for manufacture of goods which shall be cleared without payment of duty. Also they have in no way handled the dutiable goods. They were not even involved in clandestine transaction in any way. In such case the ingredient of Section 26 does not get attracted to them. I therefore hold that they are not liable for penalty under Rule 209A of erstwhile Central Excise Rules.1944 or Rule 26 of Central Excise Rules,2002. I therefore set aside the penalty imposed upon M/s Weave Tex and its partner Shri Yogesh Kabaria.
Appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 159 - CESTAT MUMBAI
Penalty - credit was reversed before issuance of SCN - shortages of goods - Held that: - Failure to reverse the credit gave direct monetary benefit to the appellant and ambiguous provision, no other conclusion can be reached except that the same was done with intention to give undue benefits. In these circumstances, penalty imposed on account of non-reversal of credit is upheld.
Imposition of penalty on Directors - Held that: - while investigations were on, statement of Shri Sukumar N Shah, Managing Director was recorded wherein he personally explained the entire process. It was obvious that he was aware that all the activities at the material time. In these circumstances, his involvement in the evasion of duty cannot be ignored - penalty on director is upheld.
Appeal dismissed - decided against appellant.
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2017 (7) TMI 158 - CESTAT ALLAHABAD
CENVAT credit - outward transportation of Service Tax paid on their finished goods for sale on FOR destination basis - Held that: - The admitted facts on record are that the appellant was supplying goods, on FOR destination basis, had taken out insurance for transit and that the sales price included the freight element - the ruling of the larger Bench of this Tribunal in the case of ABB LTD. Versus COMMISSIONER OF C. EX. & ST., BANGALORE [2009 (5) TMI 48 - CESTAT, BANGALORE], squarely covers the issue in favor of the appellant, where it was held that services availed by a manufacturer for outward transportation of final products from the place of removal be treated as an input service in terms of Rule 2(1)(ii) of the CENVAT Credit Rules, 2004 and thereby enabling the manufacturer to take credit of the service tax paid on the value of such services - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 157 - CESTAT MUMBAI
100% EOU - burning loss - difference between the permissible burning loss of 7.5% and actual burning loss of 15% - demand - Held that: - It is not the case of revenue that due to burning loss, any quantity of either brass scrap or processed rods has been diverted somewhere else instead of bringing to the factory by the appellant. For such situation, whether there is burning loss of 7.5% or even 15% that alone cannot be reason to demand the duty.
The entire demand worked out by taking the difference of SION norms provided in the Foreign Trade Policy is not correct - As far as SION is concerned it provides with the theoretical input output norms that too for the purpose of import and export of the goods. Even when the imports are allowed as per the SION norms the actual consumption of the input in the export goods is always variable as compared to the ratio provided under the SION norms. Therefore there is always difference between the input output norms given in SION and the actual input output ratio in the physical manufacture of the goods. Therefore the SION norms cannot be applied in the facts of the present case.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 156 - CESTAT MUMBAI
SSI exemption - clubbing of clearances - dummy units - long delay in completion of adjudication - Held that: - Whatever the reason may be from either side for the delay caused to complete the readjudication which arose out of the show cause notice issued on 17.2.1999, it is high time for the appellants not to resort to further dilatory tactics but to submit for hearing on 20th June 2017 before learned adjudicating authority. From the date of initiation of the proceedings in the show cause notice, 18 years have been expired. The demand sustained in adjudication would certainly cause injury to both sides. Therefore to reduce the litigation, endeavour should be made by the appellant without seeking adjournment on 20th June 2017 - appeal allowed by way of remand.
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2017 (7) TMI 155 - CESTAT ALLAHABAD
Waste and scrap - rejected pieces of insulated wire - It appeared to Revenue that the waste and scrap of Electrical Wires was classifiable under Tariff Item No. 85489000 - classification - Held that: - original authority rightly held that waste and scrap of insulated electrical wires does not fall under Tariff Item No. 85489000 - for subsequent period waste and scrap cannot be classified under Tariff Item No. 85489000 - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 129 - JHARKHAND HIGH COURT
Maintainability of appeal - In the waiver application, stay has been granted without any order of deposition of the amount, for which, order-in-original has been passed by the Commissioner, Central Excise & Service Tax, Jamshedpur - Held that: - we see no reason to entertain this Tax Appeal - Nonetheless, looking to the fact that Excise Appeal has been preferred by Respondent No.1, against the order-in-original passed by the Commissioner, Central Excise & Service Tax, Jamshedpur. The said appeal is of the year 2013 and hence, we, hereby, direct the Central Excise and Service Tax Appellate Tribunal(CESTAT), Kolkata to decide Appeal No. E/71365/2013-DB as early as possible and practicable - appeal disposed off.
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2017 (7) TMI 128 - CESTAT MUMBAI
Refund claim - benefit of N/N. 108/95 - denial on account of the certificate produced by the appellant is in respect of buses whereas the appellant is manufacturing chassis - Held that: - From the certificate it is apparent that it is in respect of both viz. manufacture of chassis and body building activities done by specified body builders. In terms of the said certificate, the benefit has to be extended to chassis as well. This view is further fortified by the fact that the appellant has been permitted to clear chassis, other than 179 chassis cleared during this period, after availing exemption under N/N. 108/95 - The issue regarding unjust enrichment has not been examined by the lower authorities. The doubt regarding correlation between the goods cleared and buses supplied to BEST has not been dealt by the Commissioner (Appeals).
The appeal is allowed so far as it relates to eligibility of notification to the clearance of 179 chassis cleared by the appellant - in respect of the issue of unjust enrichment and correlation, the matter is remanded to the original adjudicating authority - appeal allowed by way of remand.
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2017 (7) TMI 127 - CESTAT MUMBAI
Refund of excess paid duty - appellant cleared their final product through depot, accordingly the prices were not known at the time of clearance from the factory - Held that: - The Ld. Commissioner (Appeals) despite detailed verification was done by the original authority and also which is based on the report from the Range Superintendent, given finding that the sale invoice and relevant records were not verified which is absolutely incorrect on the face of the finding in the adjudication order - it is settled that in case of sale of the goods through depot after stock transfer when the value from the depot is charged than the value at which the excess duty was paid at the time of clearance from the factory there is not question of unjust enrichment.
The Commissioner (Appeals) has not explicitly remanded the matter to the original authority for re-consideration even if it is presumed that the request of the Revenue for remand of the matter was allowed by the Commissioner (Appeals) it is open for the assessee to challenge the finding of the impugned order, therefore the appeal is very much maintainable before this Tribunal.
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2017 (7) TMI 126 - CESTAT MUMBAI
Refund of excess paid duty - denial on the ground that the appellant should have adopted the provisional assessment in terms of Rule 7. In failure to opt for the provisional assessment whatever duty was paid at the time of clearance is the correct duty and the same cannot be claimed as refund - unjust enrichment - Held that: - since the appellants have cleared the goods to their sister concern, it does not involve sale, therefore the question of passing of either the value of goods or the duty paid thereon does not arise. Therefore firstly no incidence of any duty was passed on to their sister concern - The contention of the revenue that since the duty was based on sale value of their sister concern is absolutely incorrect for the reason that there is no sale to the sister concern. There is no question of passing of any element either value or duty to the sister concern. Moreover, the recipient unit being in Roorki availing the area based exemption also do not claim the cenvat credit. In view of this fact, the excess paid duty is refundable to the appellants - appeal allowed by way of refund.
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2017 (7) TMI 125 - CESTAT BANGALORE
Clandestine removal - safety gears (helmets) - quantum of redemption fine - penalty - Held that: - the original authority has imposed the redemption fine of ₹ 3,24,592/- whereas the duty involved on the goods were to the tune of ₹ 2,11,530/- which according to me is on a higher side and therefore, I reduce the redemption fine to the extent of ₹ 1,00,000/-.
Penalty - Held that: - since the appellants have paid the duty before the issue of show-cause notice, therefore, he was entitled to avail the benefit of reduced penalty of 25% of the duty under Section 11AC of the Central Excise Act but this benefit has not been given by both the authorities and therefore, I grant the benefit of Section 11AC and held that appellant is entitled to the availment of reduced penalty of 25%.
Appeal allowed - decided partly in favor of appellant.
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