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Central Excise - Case Laws
Showing 301 to 320 of 412 Records
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2017 (9) TMI 449 - CESTAT ALLAHABAD
Manufacture - After receiving the items in their factory premises at Noida. They were repacking the sets, and putting a sticker of running SI. No., sticker bearing imprint "Manufactured & Marketed by MIT Corporation, Parwanoo" - It appeared to Revenue that the process of testing, labeling/relabeling and repacking etc. of the product amounts to deemed manufacture in terms of Section 2(f) (iii) of Central Excise Act, 1944 - Held that: - there is no evidence that the VCD/DVD players were imported by the respondent MIT Corporation, directly at Noida. There is no evidence that the goods transferred from Parwanoo, to Noida were not manufactured at Parwanoo. The allegation in the show cause notice that some goods were found in testing room where some stickers were not fixed is not sufficient evidence to establish that manufacturing was carried out on the goods seized at Noida, especially when there is contrary report of the investigation carried out at Parwanoo unit. The Department has failed to put forth even a single bill of entry to sustain its claim that there was direct import at Noida. Accordingly, the allegations leveled in the SCN are not proved against the respondents.
The evidence on record have been relied upon selectively in view of the statement of Shri Lalwani which is relied upon, who categorically stated that no activity other than inspection is carried out at Noida. It has to be treated as valid evidence in favor of the respondent as evidence in the whole has to be read and not relied on in part, which is suitable to Revenue.
Appeal dismissed - decided against Revenue.
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2017 (9) TMI 448 - CESTAT ALLAHABAD
CENVAT credit - capital goods - bars which were used in making pollution control equipments - gone into making of civil foundation - case of appellant is that part of the bars were used for making pollution control equipments and pollution control equipments were qualified to be treated as capital goods, and CENVAT credit is admissible - Held that: - the contention of the appellant is sustainable which relates to that part of the said bars which were used in making pollution control equipments as admissible for availment of Cenvat credit.
In so far as the part of the bars which gone into making of civil foundation, the said issued is covered by the ruling of Hon'ble High Court of Madras in the case of Commissioner of Central Excise, Tiruchirapalli Versus India Cements Ltd [2011 (8) TMI 399 - MADRAS HIGH COURT], where it was held that these items are not used for civil construction, but for the construction, which are absolutely necessary for establishing a manufacturing unit for cement - Cenvat credit on that part of the HSD Bars, TMT Bars & MS Bars is also admissible which have gone into making of civil foundation to erect capital goods in the present case.
Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 447 - CESTAT MUMBAI
CENVAT credit - duty paying invoices - whether CENVAT credits have been rightly denied to the appellant-assessee on the ground that they had taken CENVAT credit on the basis of Xerox copy of the original of the bills of entry, instead of the prescribed document, being the duplicate copy of the bill of entry? - Held that: - the appellant have received the imported raw material in question in their factory of production and also regarding the duty paid character of the same - in view of the fact that the appellant produced the original/duplicate copy and/or importers copy before the adjudicator already. Further, there is no finding that the duplicate copy of bills of entry, so produced were forced or concocted. Thus, for mere venial breach, the substantial benefit of CENVAT credit cannot be denied - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 446 - CESTAT HYDERABAD
Confiscation of capital goods - redemption fine - penalty - Rule 15 (2) of CCR, 2004 - it was alleged that appellant had availed excess credit on capital goods - Held that: - the appellant has availed the Cenvat credit third time which they are not supposed to do so, against the capital goods received by them, a fact evidenced once the appellant has reversed the said amount on 31.07.2008, on being pointed out by audit party, hence the reversal of Cenvat credit is rightly upheld - confiscation upheld - redemption fine seems to be on higher side and is reduced to ₹ 2.00 lakhs.
As regards the penalty imposed under provisions of Rule 15 (2) of CCR 2004, the said provision may not be applicable in the case in hand - the appellant had no intention to avail this Cenvat credit with intention to evade duty. The existence of intention to evade duty is primary requirement for invoking provisions of rule 15 (2) of CCR, 2004 - penalty set aside.
Appeal allowed - decided partly in favor of appellant.
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2017 (9) TMI 445 - CESTAT HYDERABAD
Refund of unutilsed CENVAT credit - denial on the ground of time limitation and also on the ground that credit was availed for the period in question - Section 11B of Central Excise Act, 1944 - Held that: - The provisions of N/N. 27/2012-CE(NT), dt. 18 06 2012 mandates for filing of one refund claim by the manufacturer of goods within one year from the end of the quarter - An application for refund claim was filed on 30.08.2013 for the exports made by them during the period July to September 2012 and claimed the refund for the balance cenvat credit availed - the refund clam by the appellant is on 30.08.2013 is within the time for the quarter July to September 2012.
CENVAT credit - Held that: - there is no provision in Cenvat Credit Rules which indicate that cenvat credit has to be availed during the period when the assessee receive the services nor there is any limitation for availing cenvat credit during the relevant period in question - similar issue decided in the case of K Line Ship Management (India) Pvt. Ltd [2017 (7) TMI 412 - CESTAT MUMBAI], wherein it has been held that unless the assessee is issued a show cause notice for denial of cenvat credit availed under CCR, 2004, refund sanctioned cannot be credited to Cenvat credit during the relevant period in question.
Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 444 - CESTAT HYDERABAD
CENVAT credit - outward transportation of waste chemical - Held that: - From the audit report it is very clear that the audit team had under taken audit of CENVAT credit availed by the appellant in the case in hand means would includes the period wherein disputed CENVAT credit was availed i.e., May, 2010 to July, 2010. There is no audit objection raised on the point of availment of CENVAT credit of tax paid on outward transportation under GTA services - reliance placed in the decision in the case of COMMISSIONER OF CENTRAL EXCISE, BANGALORE-I Versus MTR FOODS LIMITED [2012 (10) TMI 165 - KARNATAKA HIGH COURT], where it was held that In the returns it is clearly mentioned that they availed credit under the aforesaid rules. The audit partly accepted the same - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 443 - CESTAT ALLAHABAD
Authenticity of records - whether figures available in the record of the supplier of NABB are more authentic as compared to the figures reported in RT-12 returns submitted to the Jurisdictional Range Superintendent? - Held that: - The responsibility of the Jurisdictional Range Superintendent was to assess the goods to Central Excise Duty and issue the assessment memorandum in respect of each RT-12. In those circumstances, it is not sustainable to hold that the appellants under reported the figures in the returns filed before the Range Superintendent and, therefore, the figures of the production available on the record of the supplier of NABB cannot be more authentic than the figures reflected in Statutory record like RG-1 and reported in Statutory returns like RT-12 - Revenue could not produce any evidence of procurement of all the raw materials for manufacture of the alleged quantity, clearance of alleged quantity, transportation of the same and receipt of monetary transactions of the same - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 432 - DELHI HIGH COURT
Collection of un-dated/post-dated cheques - Seizure/detention of goods - provisional attachment of property - Held that: - the conclusion in para 4.4 that "the responsibility of accepting undated cheques from the assessee cannot be fixed on any individual officer" since "they have acted in the best interest of Govt. revenue" being contrary to fact and law cannot therefore be accepted. Administering a mere 'warning' to the officers involved underplays the seriousness of the issue.
Learned counsel appearing for the CVC referred to Section 8 of the Central Vigilance Commission Act, 2003 (CVC Act) which delineates the functions and powers of the CVC. The Court directs that a copy of the affidavit be filed by the Revenue be served on the counsel for the CVC to examine if the report dated 25th May 2017 of the Superintendent (Vigilance) of the anti-evasion enclosed with it as Annexure A/2 discloses the commission of an offence which may be punishable under the Prevention of Corruption Act, 1988.
The Court requests the CVC to place before it, before the next date, a note on what possible regulatory framework can be put in place to strengthen the vigilance system in the Ministries and Departments of government concerned with collection of indirect taxes, with particular reference to excise duty, customs duty and service tax.
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2017 (9) TMI 416 - SC ORDER
Condonation of delay - Cement and clinker - whether the cement cleared by the appellant to the customers covered under serial No.1C of the N/N. 4/2006-CE dated 01.03.2006 read with Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and whether such consumers can be categorized as institutional or industrial consumer? - the decision in the case of Ambuja Cements Ltd. Versus C.C.E. Raipur [ 2017 (1) TMI 1130 - CESTAT NEW DELHI] contested - Held that: - delay condoned - petition admitted.
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2017 (9) TMI 415 - SC ORDER
Denial of the benefit of N/N. 6/2006, dated 1-3-2006 - anchor rings and load spreading plates - the decision in the case of Rakhoh Enterprises Versus Commissioner of Central Excise, Pune [2016 (11) TMI 1207 - CESTAT MUMBAI] contested - Held that: - In deciding the issue of entitlement of the respondent – Assessee to the benefit of exemption under the Notification in question (No.6/2006 dated 1st March, 2006) the Tribunal has relied upon the decision of a larger Bench. The said decision of the larger Bench is not under challenge - present appeal dismissed.
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2017 (9) TMI 414 - CESTAT MUMBAI
Utilization of CENVAT credit suo moto - payment of disputed duty through PLA along with interest - Revenue was of the view that the appellants should have filed refund claim under Section 11B and should not have taken Cenvat Credit suo moto - Held that: - reliance placed in the case of The Commissioner of Central Excise, Mumbai-III Versus M/s CEAT Ltd. [2013 (7) TMI 568 - BOMBAY HIGH COURT], where it was held that the debits were held to be of no consequence when the assessee was required to pay duty initially discharged using AED (GSI) credit - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 413 - CESTAT KOLKATA
Manufacture - clearances made in cascades - case of Revenue is that the goods are cleared from the factory of the assessee-Respondents in the form of Compressed Natural Gas (CNG) in cascades. In terms of Note 5 to Chapter No. 27, the Natural Gas which is compressed for use as a fuel or for any other purpose shall amount to manufacture and, therefore, the assessee-Respondents are required to pay duty on such CNG - Held that: - even though the Natural Gas is transported to the customers premises in compressed form, such process of compression has been done for the purposes of transportation only. Such process cannot be considered as a process of manufacture, since the goods are sold not as CNG but as Natural Gas - demand set aside - appeal dismissed - decided against Revenue.
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2017 (9) TMI 412 - CESTAT MUMBAI
CENVAT credit - rental of premises taken for business, which have not been included in the registration certificate of the appellant for the period 2008-09 and 2009-10 - Held that: - the said premises have been used for business and also subsequently, included in the Registration certificate - matter remanded to the adjudicating authority to allow the CENVAT credit subject to satisfaction that the premises in question have been included in the GST Registration certificate of the appellant.
Penalty - Held that: - the transaction is recorded in the books of accounts ordinarily maintained by the appellant. It is case of only a venial breach of the provisions - penalty set aside.
Appeal allowed by way of remand.
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2017 (9) TMI 411 - CESTAT MUMBAI
CENVAT credit - freight - place of removal - whether CENVAT credit have been rightly disallowed on the inputs (freight output) service for transporting and forwarding of the goods beyond their place of removal, for being exported out of India? - whether the place of removal is the factory gate of the appellant or the port of loading? - Held that: - the SCN have been issued on the basic charge that the place of removal under the facts and circumstances is factory gate and not the port of export or the load port - I find the said allegation to be not sustainable in the facts and circumstances under the scheme of the Act and the Rules and also particularly in view of the ruling of Hon'ble Gujarat High Court in the case of Dynamic Industries Ltd. [2014 (8) TMI 713 - GUJARAT HIGH COURT], where it was held that in the case of export, the place of removal is the port of loading.
It is clear that the appellant is obligated to deliver the export goods upto the place of foreign buyer, therefore, in India, the place of removal is the port of export.
Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 409 - CESTAT MUMBAI
Liability of interest - amount paid by appellant prior to the finalization of provisional assessment - Held that: - issue is covered by the decision in the case of CEAT Limited Versus The Commissioner of Central Excise & Customs, Nashik [2015 (2) TMI 794 - BOMBAY HIGH COURT], where it was held that The liability to pay interest arises on any amount payable to Central Government and consequent to order for final assessment under Rule 7 subrule (3). The liability to pay interest on any amount payable to Central Government consequent to order for final assessment is not a situation to be found in the present case - the demand of interest cannot be sustained - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 408 - CESTAT ALLAHABAD
Classification of goods - Potato flakes or Aloo Mash - whether classified under CTH 11052000 or under CTH 20052000? - demand of differential duty - revenue contended that, the appellants appeared to be manufacturing Aloo Mash and preservative were also added - Held that: - Revenue could not establish that statement of original authority in Para-31 of impugned Order-in-Original that a sample of Aloo Mash manufactured by appellant was sent for chemical examination was recorded on the basis of facts - on going through the submissions made by the appellant before the original authority the process of manufacture stated at Para-28 of the Order-in-Original, the meaning of Mash submitted by the Learned Counsel for appellant and chapter notes of Chapter 20 and the processes which are covered under Chapter 7, 8 and 11, the subject goods have been admittedly subjected to the process of flaking and there is no process carried out to form a mash of potatoes in the factory of the appellant - the subject goods are classifiable under Tariff Item No. 11052000 - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 407 - CESTAT HYDERABAD
CENVAT credit - penalty - rejected inputs - credit availed on xerox copies of invoice - case of appellant is that the unit is closed and he may not be able to produce original invoice for availment of CENVAT credit - Held that: - Availment of CENVAT credit on the xerox copy of the invoice seems to be totally irregular and appellant is not able to explain the situation which led to availment of CENVAT credit on the xerox copies of invoices - Keeping in mind that there are no detailed finding as to erroneous availment of CENVAT credit on the rejected inputs and how it has to be attended to, the equivalent amount of penalty imposed by the lower authorities seems to be excessive - penalty is reduced to ₹ 1,00,000/-.
Non-payment of central excise duty on the goods manufactured and cleared under job work - it is the claim of the appellant that they were functioning under the provisions of N/N. 214/86 that mandates that the recipient of goods is the manufacturer, on whom the duty liability arises - penalty - Held that: - learned counsel is not able to produce the declaration under Notification No. 214/86, which has to be filed along with acceptance of the job work with the jurisdictional authorities. In the absence of any such declaration, in my view the penalty imposed by the lower authority seems to be correct - penalty upheld.
Penalty u/r 25 - Held that: - there being contravention of the provisions of CER, 2002, imposing penalty under Rule 25 is correct, however, keeping in mind the factual submissions that the appellant's unit is closed, the ends of natural justice will be met if the penalty imposed for this issue of contravention of Central Excise Rules 2002 is reduced to ₹ 75,000/-.
Appeal allowed - decided partly in favor of appellant.
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2017 (9) TMI 406 - CESTAT ALLAHABAD
Rebate claim - export of goods - reverse charge mechanism - rejection of rebate on the ground that the said case does not come under the purview of the provisions of Export of Service Rules, 2005 nor under Rule 18 of Central Excise Rules, 2004 - Held that: - there is no dispute that the said amount of ₹ 8,84,750/- was paid by the appellant as Service Tax on the input service and they were eligible for availment of Cenvat credit of the same. Therefore, it is apparent that they were eligible for refund of said claim of ₹ 8,84,750/- under Rule 5 of CCR, 2004 and that the defects in the said application dated 23/08/2007 which continued even through the written submission dated 25/01/2008 cannot debar the appellant from the substantial benefit allowed by the law - rebate allowed - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 405 - CESTAT MUMBAI
Principles of Natural Justice - Valuation - appellant has repeatedly failed to appear before that authority and lead proper evidence - Held that: - Looking to the attitude of the appellant by repeated absence to place evidence before the authority as well as explain the reasons of the deduction claimed, appeal of the assessee is liable to be dismissed - this order has been passed in the absence of appellant. But the facts and circumstances narrated by the adjudicating authority, demonstrate that this appeal is an abuse of process of law for the dilatory tactics followed by the appellant - appeal dismissed - decided against appellant.
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2017 (9) TMI 355 - CESTAT KOLKATA
Refund claim - claim submitted by the buyer / purchase of goods and not by the manufacturer - developer/co-developer of SEZ - jurisdiction - Held that: - an identical issue has come up before this Tribunal in the assessee-Appellants own case M/s Adani Power Limited vs CCE, Bhubaneswar [2017 (7) TMI 891 - CESTAT KOLKATA], where it was held that the appellant, who had paid the Excise duty to the manufactuer, had the locus-standi, to file the application claiming the refund of duty - matter remanded to the jurisdictional authority to examine the claim and pass the order along with the earlier order, which is still pending, but by providing a reasonable opportunity to the assessee-Appellants - appeal allowed by way of remand.
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