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Central Excise - Case Laws
Showing 301 to 320 of 338 Records
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2017 (7) TMI 124 - CESTAT BANGALORE
Clandestine removal - it was alleged that appellants have cleared the goods without reversal / payment of the equivalent credit availed on the returned goods at the time of final clearances - Rule 16 of Central Excise Rules, 2002 - Held that: - reliance placed in the case of TOYOTA KIRLOSKAR MOTOR PVT. LTD. Versus COMMR. OF C. EX., LTU., BANGALORE [2007 (8) TMI 274 - CESTAT Bangalore], where it was held that Rule 16 can override Section 4 - the duty paid on transaction value is incorrect as the question of determination of transaction value arise only if the goods are subjected to any process amounting to manufacture and therefore they are required to pay an amount equal to the credit availed and not payment of duty as per transaction value - appeal dismissed - decided against appellant.
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2017 (7) TMI 123 - CESTAT MUMBAI
Clandestine removal - Propriety of commuting liability to duty on the shortage of goods without offsetting the excess found in stock and the resort to estimation in stock taking - Held that: - the impugned order has had to re-work the duty liability that had been arrived at by the original authority - number of contentions of the appellant pertaining to verification of lot numbers with apparent duplication in the inventory and subjecting specific records to ascertainment would establish the correctness of stock in hand had not been examined at the level of the original authority and the first appellate authority - computations require to be re-worked after detailed examination of the records - appeal allowed by way of remand.
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2017 (7) TMI 94 - BOMBAY HIGH COURT
MODVAT credit - wrong availment of credit - tin plates having thickness of more than 0.26 mm - it is the case of petitioner that in the absence of any independent finding that these inputs were found to be of thickness exceeding 0.24 mm., the demand made in respect of this amount is not sustainable - Held that: - As per Rule 173G, it was incumbent on the part of respondent no.1 to maintain accounts of production, manufacture, storage, delivery or disposal of goods including the material received for or consumed in the manufacture of excisable or other goods. The purpose of maintaining the accounts of raw material was obviously for checking of evasion of excise duty. Respondent no.1 was required to follow the procedure prescribed in the Rule for maintaining the accounts.
The thickness of the tin plates seems to have been deliberately kept ambiguous in Anx.'B2'. However, from Column No.5 of Anx.B2', it is clear that the tin plates having thickness ranging from 0.30 mm. to 0.49 mm. also were purchased by respondent no.1. It was, therefore, necessary for respondent no.1 to specifically classify and state the quantity of the tin plates, which were having thickness below 0.24 mm. as well as above 0.24 mm. The petitioner has rightly held that respondent no.1 has deliberately suppressed the said information. If that be so, respondent no.1 cannot be allowed to take benefit of its own wrong and it will have to be held that the tin plates described in Anx.'B2' were of thickness above 0.24 mm. and were not used by respondent no.1 for manufacturing oval tin cans.
Penalty - Rule 173Q of the Rules - Held that: - respondent no.1 has obtained MODVAT credit wrongly in the sum of ₹ 14,50,994/plus ₹ 23,87,575/having total of ₹ 38,38,569/. Consequently, in view of this Rule, respondent no.1 was liable to pay penalty as contemplated under this Rule.
Petition allowed - decided partly in favor of petitioner.
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2017 (7) TMI 93 - MADRAS HIGH COURT
SSI exemption - use of brand name - The Assessee's claim is that, since, its clearances were, always, below the sum of ₹ 30.00 lakhs, there is no need to register itself with the Central Excise Authorities - Whether the Tribunal is correct in dismissing the cross-objection filed by the appellant raising the question of limitation for the Revenue to make a demand? - Held that: - the limit of exempted clearances, increased, in this period, from ₹ 30.00 lakhs to ₹ 50.00 lakhs. The Assessee, therefore, in our view, was entitled to contend that there was no occasion, for it, to disclose the fact that the subject goods were being cleared under the brand name "Micro", (which was also the brand name used by another family/sister concern), since, it had no occasion to file a classification list.
Suppression of facts - there was a non-disclosure of information by the Assessee. The Assessee has taken a stand that, since, it was always below the monetary limit fixed for clearances qua SSI Units, it never had an occasion to make any disclosure via a classification list - Held that: - this cannot be construed as suppression of fact, within the meaning of Section 11A(1) of the 1944 Act. Mere non-disclosure of facts, in such like circumstances, cannot constitute suppression of facts. Given the way the Section is framed, the expression "suppression of fact", appears in the company of words and expressions, such as, fraud, collusion, wilful misstatement. Therefore, the expression "suppression of facts", has to take colour from the words whose company, it appears in. A mere non-disclosure of information, when there is no obligation in law to furnish the same, will not amount to, in our opinion, fraud or collusion or even, wilful misstatement and, hence, trigger the extended period of limitation.
The Tribunal, in our opinion, wrongly rejected the cross objections filed by the Assessee on the issue of limitation.
Since, the extended period of limitation is not applicable, the Revenue would also not be entitled to levy penalty under Section 11AC of the 1944 Act, save and except, demand duty, for a period of of six (6) months, prior to the date of SCN.
Appeal allowed - decided in favor of assessee.
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2017 (7) TMI 92 - ALLAHABAD HIGH COURT
Penalty u/r 96-ZO of the Central Excise Rules, 1944 - Whether the tribunal in reducing the penalty amount is justified in maintaining the penalty of ₹ 1,00,000/- in exercise of power under Rule 96-ZO of the Central Excise Rules, 1994? - Held that: - Rule 96-ZO of the Rules provides for imposing of penalty equal to the outstanding amount of duty or ₹ 5,000/- whichever is greater. The aforesaid rule has been declared to be ultra vires insofar as it postulates to impose penalty equal to the amount outstanding vide Shree Bhagwati Steel Rolling Mills vs. Commissioner of Central Excise [2015 (11) TMI 1172 - SUPREME COURT] - In view of the fact that the upper limit of imposing penalty equal to the amount outstanding has been declared to be ultra vires, a penalty of minimum of ₹ 5000/- or some reasonable higher amount alone can be imposed.
The reduction of penalty even to Rs.One lac is unjustified more particularly as there is no material or basis to justify imposition of Rs.One lac as penalty - penalty is liable to be reduced to ₹ 5,000/- - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 91 - CESTAT AHMEDABAD
CENVAT credit - job-work - capital goods transferred to job-worker's premises - whether the CENVAT credit availed on the capital goods sent to their sister unit for job work and not received back within 180 days from the date of removal is recoverable or otherwise? - Rule 4(5)(a) of CCR - Held that: - Rule 4(5)(a) makes it crystal clear that the capital goods removed from the appellant's factory should be received back within 180 days and if not received, the appellant is required to reverse the credit availed on such capital goods. The said Rule also provides to take re-credit on the capital goods when received after 180 days from the initial date of removal - In the present case, even though the capital goods were cleared earlier but no evidence has been adduced by the appellant that the same were received within 180 days or thereafter. In these circumstances, the confirmation of demand is sustainable - penalty under Rule 15(2) of CENVAT Credit Rules, 2004 read with Section 11AC of CEA, 1944 cannot be sustained, as it is a revenue neutral situation - appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 90 - CESTAT AHMEDABAD
CENVAT credit - duty paying invoices - attested copy of bill of entry - Held that: - after the assessee lost the relevant copy of bill of entry for necessary for availing CENVAT credit, they obtained attested copy of bill of entry from the Customs authority. I find that there is no dispute on the issue of receipt of the goods mentioned under said bill of entry in the factory of the assessee and also its use - credit availed on the duty paid as mentioned in the attested copy of Bill of Entry is admissible to them.
Reliance was placed in the case of COMMISSIONER OF C. EX. & CUS., VADODARA-II Versus STEELCO GUJARAT LTD. [2010 (2) TMI 307 - GUJARAT HIGH COURT], where it was held that mere zerox copy by itself should not be made the basis of allowing the credit but where the assessee has made efforts to get the said xerox copy attested by the Range Superintendent of the supplier's end and has established beyond doubt that the duty stands paid on the goods and the goods stand received by him, denial of credit on this procedural irregularity would not be justified.
The copy of the report be handed over to the assessee-appellant for providing an opportunity to rebut the observations in the said report - appeal allowed by way of remand.
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2017 (7) TMI 89 - CESTAT MUMBAI
Abatement - closure of factory - whether for allowing the abatement under Rule 10 of Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010, the closure of the factory should be in a particular month or if 15 days spill over to the next month, the abatement is available to the assessee or not? - Held that: - Rule 10 of the Rules, 2010 states that it provides the abatement if the production is closed for continuous period of 15 days.
In the present case, the factory was closed from 21.01.2011 to 04.02.2011 i.e. for 15 days. In Rule 10, there is no mention that the 15 days closure should be in a particular month. In the absence of such a mention, the revenue cannot import any extraneous words in the rule and interpret that the closure should be in a particular month. The only requirement is the closure should be for a continuous period of 15 days, whether it spills over in the next month or in a particular month.
Appeal dismissed - decided against Revenue.
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2017 (7) TMI 88 - CESTAT NEW DELHI
MODVAT credit - Rule 57(1) of erstwhile CCR - Investigations were carried out in the factory premises of the suppliers and it was detected by the Central Excise officers that those suppliers did not have the manufacturing facilities for the last two years - Held that: - the fact of issuance of gate passes by the suppliers and receipt of the same by the appellant were known to the department during the relevant period - the SCN was issued after a lapse of almost three years from the relevant date, is barred by limitation - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 87 - CESTAT NEW DELHI
Clandestine removal - DMT Melter Heat Exchanger - Sub Rule (5) of Rule 3 of CCR, 2004 - Held that: - it is not a case that the appellant had suppressed the fact regarding removal of capital goods, with the intention to evade payment of Central Excise Duty. Since, as a registered assessee, the appellant has complied with the requirement of the Central Excise statute on removal of used capital goods from the factory, the charges of suppression, misstatement etc. cannot be alleged, justifying invocation of the extended period of limitation, for issuance of SCN - demand barred by time limitation - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 86 - CESTAT NEW DELHI
CENVAT credit - M.S. Channels, beams, joys, round, sheets, angles, plates, rails, sheets, squares and coils etc. - denial on the ground that the same are not confirming to the definition of either inputs or capital goods, as defined in the CCR, 2004 - Held that: - the Commissioner (Appeals) has acknowledged receipt of the Chartered Engineer’s Certificate produced by the appellant. However, the contents of the Certificate regarding use of the disputed goods for fabrication/manufacture of the capital goods and their components, described therein were not considered while passing the impugned order - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 60 - CESTAT BANGALORE
CENVAT credit - Water Treatment Expenses - duty paying invoices - Rule 9 of CCR - Held that: - the impugned order denying the cenvat credit on Company Secretary Service, Water Treatment Service and Xerox Machine Service is not sustainable in law in view of the decisions cited by the appellant in the case of M/s Arm Embedded Technologies Pvt Ltd Versus Commissioner of Central Excise, Customs and Service Tax [2016 (7) TMI 1207 - CESTAT BANGALORE], where it was held that the impugned services are eligible input services - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 59 - CESTAT NEW DELHI
SSI exemption - use of brand name of others - Held that: - Clause 6 of this agreement deals with Trade Mark and Logo. It states that J.V. Company will be entitled to use the Trade Mark and Logo of the Germany Company. We do not find any provision of assignment of the said Trade Mark to the assessee-Appellants. As such, we find no merit in the submissions made by the assessee-Appellants regarding their eligibility for SSI exemption - appeal dismissed - decided against appellant.
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2017 (7) TMI 58 - CESTAT CHANDIGARH
Input service credit - insurance of vehicle i.e. cars - construction service for making labour colony quarters - Revenue is of the view that the car is being used by the Director of the appellant's company and residential quarters have been constructed for the welfare of the labours/workers, therefore, the same do not qualify as input service as per Rule 2(l) of the CCR, 2004 - Held that: - as the factory of the appellant is located in the remote area and the appellant has provided the residential facility to their workers who are working in their factory, in that circumstances, the appellant is entitled to avail cenvat credit on construction services for residential colony.
Insurance of vehicle i.e. cars - Held that: - the car has been owned by the appellant and being used in their factory, in that circumstance, relying on the decision of this Tribunal in the case of Technical Associates ltd. [2015 (12) TMI 544 - CESTAT NEW DELHI], the appellant is entitled to avail cenvat credit on insurance charges for car.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 57 - CESTAT BANGALORE
CENVAT credit - tour operator service - denial on account of nexus - Rule 15(3) of CCR, 2004 - Held that: - the appellants have lawfully availed credit on input service of tour operator service for transportation of employees from and to the factory as well as for company official to visit the suppliers premises - reliance was placed in the case of THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, MANGALORE Versus M/s MANGALORE REFINERY AND PETROCHEMICALS LTD. [2016 (1) TMI 481 - KARNATAKA HIGH COURT] - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 56 - CESTAT BANGALORE
CENVAT credit - job-work - whether the appellants were eligible to avail CENVAT credit on inputs and input services used in the manufacture of job work goods and use the said credit for clearance of goods manufactured at a later stage? - Held that: - MODVAT credit of duty paid on inputs used in the manufacture of final products cleared without payment of duty for further utilization in the manufacture of final products which are cleared on payment of duty by the principle manufacturer would not be hit by provisions of Rule 57C - reliance was placed in teh case of STERLITE INDUSTRIES (I) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, PUNE [2004 (12) TMI 108 - CESTAT, MUMBAI] - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 55 - CESTAT NEW DELHI
Manufacture - appellants received flats and angles of iron and steel supplied by M/s ABB Ltd. After cutting to size the said flats and angles and drilling holes therein, the said products were joined by using nuts, bolts and washers before returning the same to the principal namely M/s ABB Ltd. - whether the said process amounts to manufacture or not? - Held that: - The products, in question, as cleared by the appellants are specifically identifiable and classifiable under a tariff heading under Chapter 73. The raw materials are of general nature falling under Chapter 72. As such, we have no reason to interfere with the findings of the lower authorities, that the process amounts to manufacture - demand upheld.
Extended period of limitation - Held that: - when the raw materials are supplied by principal/buyer they have not paid Central Excise duty for claimed to have paid service tax. In such situation, the appellants had knowledge and applied different reasoning to follow different tax liabilities for the same processes - extended period rightly invoked.
Appeal dismissed - decided against appellant.
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2017 (7) TMI 54 - CESTAT NEW DELHI
100% EOU - manufacture - combed cotton /sliver falling under heading 52.03 of the Central Excise Tariff - Department was of the view that the appellant is required to pay duty on such goods in terms of S.No.4 of N/N. 23/2003 dated 31.3.2003. The appellant resisted the move by arguing that goods cleared in DTA will be liable to payment of Customs duty only when they are subjected to process of manufacture within the meaning of “manufacture” as defined under section 2(f) of the Central Excise Act, 1944 - whetehr the combed cotton/sliver derived from cotton fabric amounts to manufacture - Held that: - The Board’s letter has clarified that EOU scheme covers even those activities which may not be strictly considered as manufacture under section 2(f) of the Central Excise Act. Hence, it has been further clarified that exemption under notification No.1/95-CE will also be applicable to a 100% EOU.
In the present case, the process of making cotton sliver from fibre, may not amount to manufacture as per section 2(f). But the appellant has been permitted to produce the same and export. As per the 100% EOU scheme, if such goods are cleared into DTA, Customs duty will be payable with benefit of N/N. 23/2003.
Appeal dismissed - decided against appellant.
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2017 (7) TMI 53 - CESTAT NEW DELHI
Confiscation - penalty - goods were not entered in the specified Register RG-1 - Held that: - the involvement of the appellant in contravention of the provisions of law of Central Excise has been found - looking to the facts that the goods were lying in the factory premises only for which RG-1 register was not produced, the penalty is reduced to Rs. one lakh only.
Seizure of goods - the invoices were produced on 30th June 2010, i.e. after two days of seizure, but those invoices were not examined by the Revenue - Held that: - those invoices were not examined by the Revenue, neither at the level of original adjudicating authority nor at the appellate stage. Therefore, the impugned order in the case of appellant M/s Aarkaylite Electricals is hereby set aside and the matter is remanded to the original adjudicating authority, who shall examine the invoices/documents produced by the appellant and after giving opportunity of personal hearing - appeal allowed by way of remand.
Penalty on Shri R.K. Gupta, who is working only as a part time Clerk cum Accountant at a remuneration of ₹ 1000 per month with M/s Prakash Switchgear - The department’s stand is that Shri R.K. Gupta has dealt with excise records and abetted the assessee appellant, M/s Prakash Switchgear in suppression of facts with intent to evade payment of duty of Central Excise - Held that: - the fact that Shri R.K. Gupta had taken RG-1 register, itself shows that he is equally responsible for contravention of Central Excise law. From the records and submissions of both the sides, there is no dispute that he is a part time employee, who is working on a small remuneration of ₹ 1000/- a month; therefore, taking a lenient view, the penalty imposed on him of ₹ 1 lakhs is reduced to ₹ 1000/- only.
Appeal allowed - decided partly in favor of appellant and part matter on remand.
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2017 (7) TMI 52 - CESTAT NEW DELHI
CENVAT credit - dumpers and locomotive - manufacturer of Cement - Held that: - reliance was placed in the case of COLLECTOR OF CENTRAL EXCISE Versus RAJASTHAN STATE CHEMICAL WORKS [1991 (9) TMI 73 - SUPREME COURT OF INDIA], where it was held that dumpers tippers which are used within the factory will be entitled to Cenvat credit as capital goods - credit allowed.
CENVAT credit - locomotives - Held that: - reliance placed in the case of Commissioner of Central Excise, Customs & Service Tax, BBSR-I Versus M/s. Bhusan Steel Ltd. [2012 (10) TMI 306 - CESTAT, KOLKATA], where it was held that diesel locomotive used to carry molten metals in torpedo ladle car in the process of manufacturing of iron and steel products in the integrated steel plant, having railway siding within the factory premises and laid down lines within the factory connecting one plant to another plant for movement of raw material, semi-finished and finished goods, Cenvat credit of duty paid on the diesel locomotive is admissible in terms of Rule 3 of Cenvat Credit Rules, 2004 - credit allowed.
Appeal allowed - decided in favor of appellant.
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