Tax Management India. Com
Law and Practice : Digital eBook
Research is most exciting & rewarding

Case Laws Acts Notifications Circulars Classification Forms Manuals Articles News D. Forum Highlights Notes

Home

Case Laws

Home Case Index All Cases Central Excise 2017 2017 2017 (9) Central Excise - 2017 (9) This

Law
Court
Citation	- -
Landmark
Order by

Advanced Search Options

Central Excise - Case Laws

Showing 281 to 300 of 412 Records

2017 (9) TMI 548 - CESTAT MUMBAI

Penalty u/r 26 of the CEA, 2002 in the capacity of Authorized Signatory of main noticee - case of appellant is that once the appellant has paid the entire Central Excise duty along with interest and 25% penalty of the said duty within 30 days receipt of the SCN, under proviso to sub Section 2 of Section 11A of the CEA, all proceedings stand concluded - Held that: - The case of the appellant is squarely covered by the decision of Hon'ble High Court of Punjab & Haryana in the case of COMMISSIONER OF C. EX., CHANDIGARH-I Versus VIKAS GARG [2011 (10) TMI 554 - Punjab and Haryana High Court], where it was held that Once the proceedings against the firm stand concluded, penalty proceedings against partners of the firm cannot continue as Rule 26 of the Rules is not an independent provision but has to be read with Section 11A of the Act - appeal allowed - decided in favor of appellant.
2017 (9) TMI 547 - CESTAT NEW DELHI

CENVAT credit - process amounting to manufacture or not? - manufacture of profiles, shapes and sections of various machines /machineries - Revenue was of the view that the process undertaken in the factory by the appellant simply changes the form or size of the inputs–plates, sheets etc. The finished product as well as inputs remain classified under the same CEH and accordingly, they were of the view that the processes do not amount to manufacture and consequently, the cenvat credit availed by the appellant on the inputs were improper - Held that: - It is evident on perusal of some of the photographs of these products that processes undertaken in the factory do result in new and distinct products and such process can be considered as process of manufacture, even if the inputs as well as final products are classifiable in the same CTH - Once it is held that process amounts to manufacture, there can be no justification to deny cenvat credit on the inputs.
In any case, it is settled position of law that even if the activity undertaken does not amount to manufacture, when duty is levied, the credit cannot be denied by upholding that there is no manufacture.
Credit allowed - appeal allowed - decided in favor of appellant.
2017 (9) TMI 546 - CESTAT NEW DELHI

Clandestine manufacture and removal - melting scrap and M.S. Ingots used in the manufacture of M.S. Steel ingots, rolled bars and rods, falling under Chapter 72 of the Central Excise Tariff Act, 1985 - Though, pursuant to the direction of the Tribunal, the original authority had called the witnesses for cross-examination, but they did not tender themselves for the same - principles of Natural Justice - Held that: - the Department has not made any serious efforts to ensure the presence of the witnesses. Since the witnesses did not appear for cross-examination, the original authority should have given a clear finding regarding application of provisions of Section 9 D (1) in the present proceedings. In this context, the law is well settled that admissibility of evidence is required to be followed in the adjudication proceedings, wherein the adjudicating authority is required to examine the witnesses and thereafter, to form the opinion about the admissibility of statements tender by them - In the present case, since the Adjudicating Authority did not observe the mandates of Section 9 D of the Central Excise Act, 1944, which is mandatory in nature, in our considered view, reliance cannot be placed on the statements of various witnesses alone, to frame the charges against the appellant for confirmation of the adjudged demand.
The evidences available in the present case are not sufficient enough to establish a case of clandestine manufacture and clearance on the part of the main appellant company - appeal allowed - decided in favor of appellant.
2017 (9) TMI 545 - CESTAT ALLAHABAD

Jurisdiction - power of Commissioner (Appeals) to re-adjudicate - Valuation - freight charges - inspection charges - includibility - Held that: - the grounds raised by Revenue before this Tribunal are that the Commissioner (Appeals) does not have power to adjudicate. It means that the relief sought by them before Learned Commissioner in their opinion was in contravention of the provisions of law. There are contradictions in the grounds raised by Revenue before Learned Commissioner (Appeals) and before this Tribunal. If the grounds of appeal by Revenue before this Tribunal are accepted then the appeal filed before Learned Commissioner (Appeals) become infructuous - the relief sought by them before Learned Commissioner in their opinion was in contravention of the provisions of law. There are contradictions in the grounds raised by Revenue before Learned Commissioner (Appeals) and before this Tribunal - order dated 03/11/2005 passed by original authority will become operational - appeal disposed off.
2017 (9) TMI 544 - CESTAT NEW DELHI

Benefit of N/N. 65/95 C.E. - case of Revenue is that certificate in case of certain invoices was not issued by the competent authority. It was issued by the officer in the Rank of the Captain of the Indian Navy, who was also the controller of the procurement - Held that: - identical issue has come up before the Tribunal in the case of CCE, Raigad V/s Wartsila (l) Pvt Ltd. [2016 (3) TMI 662 - CESTAT MUMBAI], where it was held that there is no dispute that the goods supplied to Mazgaon Dock for manufacture of Indian Navy warship, therefore in our considered view there is no need that the goods should be supplied to Indian Navy only - In the present case, supplies were admittedly made to M/s Mazgaon Dock and not to Indian Navy - the appellant will be entitled to the benefit of exemption as per the N/N. 64/95.
As regard demand under Rule 6(3)(b), the assessee have admittedly reversed the cenvat credit in respect of inputs used in exempted goods at the time of clearance of such exempted goods which tantamount to non-availment of credit.
Appeal allowed - decided in favor of appellant.
2017 (9) TMI 543 - CESTAT MUMBAI

Penalty u/r 26 - Clandestine removal - Shortage of goods - penalty imposed on mere belief and not on corroborative evidences - Held that: - the adjudicating authority in the denovo adjudication confirmed demand of ₹ 42 lacs but since the appeal of M/s. Sunrise Zinc Ltd stand dismissed as on date, demand of Rs, 42 Lacs stands upheld.
As regard the role of Shri. Pankaj Jaju, he was actively involved in the entire operation being Executive Director of M/s. Sunrise Zinc Ltd. - It is also found that though the Ld. Counsel has submitted that while imposing penalty charge of belief of confiscation of the goods is not made by the adjudicating authority. However in the findings given in para 51.4, it is clearly held that Shri. Pankaj Jaju knows and had reason to believe that goods were liable to confiscation therefore he was liable for penalty under Rule 26.
As regard the penalties on the other persons i.e. Victor Industries, Crown Indystries Unique Trading Corporation and Suman Bardia, they are not related to the company who has indulged in the clandestine removal i.e. M/s. Sunrise Zink Ltd. However they were involved in dealing with the goods which were cleared clandestinely therefore their involvement in not direct but indirect involvement was very much established.
The penalty imposed on the appellants are excessive which deserve to be reduced considering the nature of the case and their role. Since the duty should not have been confirmed to the tune of ₹ 42 Lacs, the penalty commensurate to the said amount is also not proper. The penalty on Shri Pankaj Jaju reduced from ₹ 25 lacs to ₹ 4 Lacs and on other appellants i.e. Unique Trading Corporation penalty of ₹ 2 lacs to ₹ 25,000/- In respect of Victor Industries, Crown Industries and Suman Bardia, penalty of ₹ 15,000/- reduced to ₹ 10,000/-.
Appeal allowed - decided partly in favor of appellant.
2017 (9) TMI 542 - CESTAT MUMBAI

Option of reduced Penalty - First proviso to Section 11AC - whether the option of reduced penalty of 25% as provided under First proviso to Section 11AC can be extended to the appellant when adjudicating authority has not given option in writing in the adjudication? - Held that: - The issue is no longer res-integra as Hon'ble Supreme Court in case of R.A. Shaikh paper Mill Pvt Ltd [2016 (4) TMI 1076 - SUPREME COURT], held that option of 25% penalty provided under first proviso to Section 11AC should be given in writing by the adjudicating authority, particularly following board circular No. 208/07/2008-CX-6 dated 22-5-2008 - since the adjudicating authority has not granted option of reduced penalty of 25%, the same can be extended at this stage, the option of reduced penalty of 25% is allowed subject to condition that appellant make dues of payment of duty, interest and 25% penalty within one month from date of this order - appeal allowed - decided partly in favor of appellant.
2017 (9) TMI 504 - GUJARAT HIGH COURT

Refund of unutilised CENVAT credit - export of services - Rule 5 of CCR, 2004 - Held that: - the refund u/r 5 would be available when any input or input service is used in manufacture of any final product or letter of undertaking or use in the intermediate product cleared for export, or used in providing output service which is exported. If this conditions are satisfied, refund of CENVAT would be available subject to other conditions mentioned in the rules - Admittedly, the CENVAT does not relate to any input or input service used in any final product or used in intermediate product cleared for export or used in providing output service which is exported - appeal dismissed - decided against appellant.
2017 (9) TMI 503 - GUJARAT HIGH COURT

Penalty u/r 25 of CER, 2002 - default of payment u/r 8(3A) of CER, 2002 - Held that: - Rule 25 prescribes confiscation of goods upon breach of the conditions set out therein and penalty not exceeding the duties on excisable goods in respect of which such contravention is deducted or ₹ 5000/- whichever is greater - In the present case, the Tribunal emphasized on the facts that soon upon being informed about the breach, the assessee had paid the entire duty with interest - penalty set aside - appeal dismissed - decided against Revenue.
2017 (9) TMI 502 - CESTAT CHENNAI

Classification of goods - "process oil / speciality oil" cleared by the appellant - appellants classified the said goods under Heading 2710.50 during the material time and cleared the same on payment of duty. The Revenue entertained a view that the said product would merit classification under heading 2707.90 - whether or not the appellants are engaged in an activity which will amount to "manufacture" of a new excisable product in terms of Section 2 (f) of the Central Excise Act, 1944? - Held that: - It is not necessary that to categorise a process as manufacturing process that there should be necessarily a chemical change. Blending or compounding one mineral oil with another mineral oil can certainly result in a new product known in the market for specific use - In the present case, the product is known specifically in the tyre industry and it is a speciality oil known differently than the raw material which is nothing but furfural extracts - the processes undertaking by the appellant satisfy the criteria for "manufacture" attracting excise duty.
Classification of goods - circular dt. 13.2.1989 - Held that: - The appellant's claim that Heading 2713 is not applicable to the impugned goods as the product is not oils obtained of distillation of high temperature coal tar, we note that said tariff heading covers similar products in which weight of aromatic constituents exceeds that of non-aromatic constituents. We are in agreement with the reasons elaborated in the circular dt. 13.2.1989 of the Board and note that appellant did not bring out by way any technical literature/support to contest the said finding. Accordingly, we uphold the classification adopted by the lower authorities - goods classified correctly under CTH 2707.90.
Time limitation - Held that: - there can be no question of suppression, wilful misstatement etc. for invoking extended period of limitation for demand. In any case, no such allegation or evidence was recorded in the SCNs - the original authority should re-quantify the duty liability after consideration of the demands which are issued within normal period - matter on remand.
Interest on differential duty - Held that: - Board vide master circular dated 10.3.2017 also states that the interest needs to be demanded and recovered following due process of demand and adjudication. As such interest liability without due notice and adjudication is not sustainable.
Regarding the claim of appellant for MODVAT credit on inputs, the present proceedings are for only differential duty and hence this aspect is not for consideration.
Appeal dismissed - decided against appellant.
2017 (9) TMI 501 - CESTAT MUMBAI

CENVAT credit - input services - Since the issue regarding the availability of Cenvat Credit on the said service was not taken up before the original adjudicating authority, the Revenue has contended that it is not open to take up the said issue before the appellate forums - Held that: - a SCN was issued on the ground that the said disputed services are not input service. The appellants have not addressed the said issue before the original adjudicating authority. However, it does not preclude them to raising the issue before the appellate forum. In their reply to the original adjudicating authority, the appellants have not specifically conceded that the credit is not admissible to them - matter needs to be remanded to the original adjudicating authority to examine the issue on merits - appeal allowed by way of remand.
2017 (9) TMI 500 - CESTAT HYDERABAD

Penalty u/s 14 & 15(1) of CER, 2004 - reversal of CENVAT credit - rendering of taxable as well as exempt services - N/N. 82/84 CE dated 31.03.1984 - Held that: - similar issue decided in the case of DHARAMSI MORARJI CHEMICAL CO. LTD. Versus COMMR. OF C. EX., RAIGAD [2010 (3) TMI 561 - CESTAT MUMBAI], where the very same rule 6 of Cenvat Credit Rules was invoked, where the Bench has held that the provisions of Rules are not attracted in case in hand where CT-3 certificate has been issued - credit allowed - appeal allowed - decided in favor of appellant.
2017 (9) TMI 499 - CESTAT ALLAHABAD

CENVAT credit - duty paying invoices - fake invoices - no movement of goods took place - Held that: - the issue is squarely covered by the said ruling of High Court of Allahabad in the case of Commissioner of Central Excise, Customs & Service Tax Versus Juhi Alloys [2014 (1) TMI 1475 - ALLAHABAD HIGH COURT], where the assessee was found to have duly acted with all reasonable diligence in its dealings with the first stage dealer, and credit was allowed.
The transactions in respect of inputs in dispute were reflected in the books of account and therefore, the above stated ruling of Hon'ble High Court of Allahabad is squarely applicable in the present case - appeal allowed - decided in favor of appellant.
2017 (9) TMI 498 - CESTAT ALLAHABAD

CENVAT credit - whether sou moto reversal of CENVAT credit amounts to non-availment of CENVAT credit? - Held that: - the Hon’ble Supreme Court in the case of Chandrapur Magnet Wires (P) Ltd. Versus Collector of Central Excise, Nagpur [1995 (12) TMI 72 - SUPREME COURT OF INDIA], has ruled that if Cenvat credit is availed and the same is reversed before utilization of the same then it will amount as if Cenvat credit was not availed - Cenvat credit was reversed on 01/03/2011 and therefore, the said Cenvat credit of ₹ 31,31,991/- was not availed by the respondent as on 02/03/2011 - appeal dismissed - decided against Revenue.
2017 (9) TMI 497 - CESTAT ALLAHABAD

CENVAT credit - 4 Cranes along with parts of handling equipments installed in 1996, which were released by IDBI bank - time limitation - Section 11A of Central Excise Act, 1944 - the demand has been raised by the Department after four and half years after receiving the intimation under Rule 57 T - fraudulent invoices - suppression of facts - Held that: - it is settled law that for availing Modvat credit, there are two prerequisites. The first, being acquisition of capital assets on payment of duty along with proper duty paying document and secondly the receipt of the particular capital goods in the factory of production - at the time of inspection, revenue found the presence of the 4 EOT cranes in the factory of respondents M/s ATV and also found the relevant invoices issued by the supplier namely M/s VEL. Further, the cranes were inspected and finalised by IDBI Bank Ltd. and in such case of bank finance as per the facts on record, the cranes were inspected by the authorized representative of the bank, prior to purchase and also after purchase and the receipt in the factory of the respondent M/s ATV and only on such conformation the bank could release the amount of finance to the supplier.
The entire allegation of revenue is based on flow back of money to ATV. The said allegation is misconceived in as much as admittedly the 4 cranes in questions were leased by IDBI Bank and the ownership of the same vests with IDBI bank only. There is no finding that the bank have been involved in fraud in collusion with the company M/s ATV and its Directors/Managers. Further, the allegations are vague in absence of enquiry made against M/s VEL and no collusion with intent to defraud, established by the revenue. The whole allegation of the revenue is presumptive and hypothetical. M/s IDBI Bank has collected rental, interest, compensatory finance charges, costs and differences and other dues from respondent M/s ATV under the Lease Agreement, which has not been disbelieved by the Department.
The Order-in-Original is bad and rightly set aside by the learned Commissioner (Appeals) on the finding that denial of cross examination, including examination of the persons, whose statements are relied upon by revenue in the course of adjudication proceedings, is violation of the provisions of Section 9D of the Act and as such the findings in the Order-in-Original are vitiated - there being no fraud established, the invocation of extended period of limitation is also untenable and the show cause notice is unsustainable.
Appeal dismissed - decided against Revenue.
2017 (9) TMI 496 - CESTAT ALLAHABAD

Job-work - goods sent to job-worker for processing and received back - case of Revenue is that Central Excise duty should have been paid by them before the goods were sent for job work - Held that: - it is an admitted fact that the goods on which Central Excise duty amounting to ₹ 48,07,703/- was demanded were the goods on which appropriate Central Excise duty was paid before clearance from the factory after being received from the job workers - through the said SCN dated 25/09/2009 Revenue has raised the demand of Central Excise duty on the goods which have already suffered Central Excise duty. Such type of demand of Central Excise duty on the goods on which Central Excise duty was already paid is not provided for in Central Excise Act, 1944. Therefore, the SCN is not sustainable - appeal allowed - decided in favor of appellant.
2017 (9) TMI 453 - BOMBAY HIGH COURT

Recovery of duty u/s 11D - sugar incentive scheme - revenue contended that, appellant had collected the amount of ₹ 85/- per quintal, however, had deposited ₹ 52/- per quintal with the Central Government - Interpretation of Statute - It is the case of the appellant that the said sugar incentive scheme was commenced by the Government of India in terms of provisions of section 3 of the Essential Commodities Act, 1955 with an object to encourage indigenous sugar production and to achieve the target envisaged, whereby the said incentives under the said scheme was partly based on higher percentage of free sale sugar quota and partly on excise duty concession/exemptions pursuant to the provisions of section 5-A of the said Act read with Rule 8(2) of the Central Excise Rules, 1944 by issuance of notifications dated 27th April, 1983 to enable the new sugar factories to repay the advances and loans out of the additional funds generated out the benefits of those sugar incentive scheme - Whether the Tribunal committed error while interpreting and construing the provisions of Section 11-D of C.E.A., 1944, while ignoring the interpretation and construction of provisions of Section 5-A of C.E.A., 1944, granting exemption from duty of excise to the Appellant / Assessee which is required to be construed liberally while upholding the impugned order passed by the respondent Authority?
Held that: - It is not in dispute that when the Government of India, Ministry of Food and Civil Supplies, had issued the said incentive scheme on 4th November, 1987 for new sugar factories and expansion projects, Section 11-D of the Central Excise and Salt Act, 1944 was not introduced by the Central Government. The Constitutional validity of Section 11-D of the Central Excise and Salt Act, 1944 has been already upheld by the Supreme Court.
It is held that the incentive scheme is nothing but the executive instructions of the Ministry of Food and Civil Supplies and thus it could not override the provisions of Section 11-D of the Central Excise and Salt Act, 1944, enacted by the Parliament - The learned Collector of Central Excise and Customs has rendered a finding that it was established that the excess amount was recovered and retained by all the assessees including the appellant herein representing the duty of excise as an incentive under the incentive scheme dated 4th November, 1987 illegally and thus the appellant was liable to pay the said amount as demanded in the show cause notices issued by the authority.
A perusal of the appeal memo filed by the appellant in this appeal indicates that no ground is raised by the appellant contending that though the appellant had produced the relevant documents to show that the appellant had not retained any amount out of the amount recovered as duty from its customers including the rebate, the Collector of Central Excise and Customs as well as the said Tribunal have not considered such documents. In our view, the Collector of Central Excise and Customs has, after granting sufficient opportunity to the appellant, dealt with all the issues and fact as well as law and has rightly upheld the demand raised in the show cause notices issued by the authority.
Insofar as the submission of the learned counsel for the appellant that there was no opportunity to engage an Advocate was granted by the learned Collector of Central Excise and Customs is concerned, this submission of the learned counsel is ex-facie contrary to the averments made in paragraph no.8 of the appeal memo filed by the appellant before the said Tribunal, in which it has been admitted that the said Collector of Central Excise and Customs had heard the appellant through their Advocate in those six show cause notices. A perusal of the order passed by the learned Collector of Central Excise and Customs and more particularly paragraph no.4 of the said order also clearly records that a personal hearing was given to the appellant through its Advocate Shri K.P. Joshi.
The appellant did not file any proceedings for enforcement of the said incentive scheme before any Court of law. Be that as it may, in our view, the learned Collector of Central Excise and Customs has rightly held that no such incentive scheme, which was in the nature of executive instructions had in any event was subject to further notification to be issued by the Government could be given effect to while considering the provisions of Section 11-D of the Central Excise and Customs Act - even otherwise in view of the non obstante clause provided in Section 11-D of the Central Excise and Salt Act, 1944, which was introduced later in point of time, the said provision will prevail over the provisions of the Essential Commodities Act, 1955, having similar non obstante provision in Section 6.
Appeal dismissed - decided in favor of Revenue.
2017 (9) TMI 452 - ALLAHABAD HIGH COURT

Scope of SCN - Whether the Customs Excise & Service Tax Appellate Tribunal, New Delhi was right in taking a contrary view in two identical cases covered by same show cause notice? - Held that: - the language of notice in the case of Commissioner of Central Excise, Kanpur Vs. Sarada Steel Industries Pvt. Limited [2010 (7) TMI 596 - CESTAT, NEW DELHI] and that of respondent is same. Therefore Tribunal was not justified in taking a view otherwise than what has already been taken in Commissioner of Central Excise, Kanpur Vs. Sarada Steel Industries Pvt. Limited, without referring matter to larger Bench - issue decided in favor of appellant and against Assessee.
Whether Rule 25 of the Central Excise Rules 2002 is self contained as the same is already subject to provisions of Section 11 AC of the Central Excise Act, 1944? - Held that: - it is subject to provision of Section 11AC of Act, 1944, mere non- mention of Section in a particular order or notice by itself will not render the same bad, if otherwise all ingredients are satisfied - matter remanded to Tribunal to restore the appeal.
Appeal allowed - decided partly in favor of Revenue and part matter on remand.
2017 (9) TMI 451 - CESTAT MUMBAI

CENVAT credit - revenue argued that the appellants are not involved in the manufacturing activities - Held that: - it is a fact that the appellants have availed Cenvat Credit and paid the Central Excise duty and exported goods and also claimed rebate on the exported goods. Revenue has not challenged the payment of duty on the exported goods and also not challenged sanction of rebate claims sanctioned to the appellants. In these circumstances, the decision of the Tribunal in the case of Hino Motors Sales India Pvt. Ltd. [2013 (8) TMI 844 - CESTAT MUMBAI] becomes relevant, where it was held that The Cenvat Credit availed cannot be demanded in spite of the fact that the activity undertaken by the appellant does not amount to manufacture.
In the present case there is no dispute that the duty on the final product has been paid by the appellants by utilizing the Cenvat credit being demanded and department has not disputed payment of duty on vehicles, the Cenvat credit availed cannot be demanded in spite of the fact that the activity undertaken by the appellant does not amount to manufacture.
Appeal dismissed - decided against Revenue.
2017 (9) TMI 450 - CESTAT ALLAHABAD

Remission of duty - Rule 21 of CER, 2002 - due to the bursting of outlet valve of Tank No.2 on 08/04/2008 58365.56 Qtls of Molasses was lying in the open surface on sandy soil around the tank - Held that: - Rule 21 of the CER, 2002 provides for remission of duty where the goods have been lost or destroyed by natural causes or by unavoidable accident or are claimed by the manufacture as unfit for consumption or for marketing, at any time before removal - reliance placed in the case of U. P. State Sugar Corporation Ltd. [2012 (6) TMI 758 - CESTAT NEW DELHI] wherein it was held that nobody deliberately would indulge in an exercise which may result in huge loss and that the view while interpreting Rule 21 of the CER, 2002 the authorities are required to be liberal and that the restrictive construction to Rule 21 would make it inoperable and redundant - the present case is fit for remission of duty under Rule 21 of the Central Excise Rules, 2002 - appeal allowed - decided in favor of appellant.