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Central Excise - Case Laws
Showing 321 to 340 of 470 Records
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2018 (3) TMI 451 - CESTAT MUMBAI
CENVAT credit - carry forward of credit - Rule 57 F (17) (b) of CER - Held that: - the credit was not carried forward by the Appellant by complying with Rule 57 F (17) (b) in year 1997. They did not challenge the lapse of such credit thereby accepting the compliance with the said Rule. It is only after 9 years that they availed credit suo moto which is bad in law. When the lapse of the credit was not challenged by them and they accepted the lapse of credit in that case they could not have taken suo moto credit. Therefore they are not entitled for the credit.
Interest on unutilized credit - Held that: - the Appellant has utilized the portion of credit which was availed in the year 2006. During the said period the Rule 14 provided for payment of interest in case where the credit was taken or utilized wrongly - appellant liable to pay interest.
Appeal dismissed - decided against appellant.
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2018 (3) TMI 450 - CESTAT NEW DELHI
Penalty u/s 11AC - Short payment of duty - change in classification of goods - payment of differential duty with interest on being pointed out - Held that: - the appellant had disclosed the payment of duty of 10.30% attributable to the product of Chapter 73259910. Thus, malafide cannot be attributed to the appellant, justifying the invocation of the provisions of Section 11 AC of the Act for imposition of equal amount of penalty - penalty cannot be sustained.
CENVAT credit - service tax paid on painting of the factory building & machinery - denial on the ground the construction of building or civil structure is falling under the Exclusion Clause contained in the definition of “input service” under Rule 2 (l) of the Rules - Held that: - the services were provided in relation to the painting of the factory building and plant & machinery, which are appropriately classifiable under category of “renovation or repair of the factory” contained in the Inclusive part of the definition of the “input service” - such service falls under the purview of the “input service” for the purpose of availment of cenvat credit - denial of credit and imposition of penalty not sustainable.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 449 - CESTAT NEW DELHI
Area based exemption - change of assessee - Benefit of N/N. 50/2003 CE dated 10/06/2003 - Revenue had taken the view that the entire premises was occupied by M/s Mahabir Steel Tubes was leased to M/s Wonder Fibromat Pvt. Ltd and the original unit was not functioning on the date when the same was taken over by the present appellant - Held that: - In the present case, both circumstances co-exist. The present appellant has purchased the unit from M/s Mahabir Steel Tubes and has also transferred the unit to a new site. The reason cited by the revenue for denying the benefit is that the unit was not functional at the original place before it was shifted. From the record available we notice that certain portion of the original factory continued to exist in the name of M/s Mahabir Steel Tubes on the date on which the unit was taken over and subsequently shifted.
The benefit of exemption will be available to the new unit provided they are able to satisfy the revenue authorities that it is the same machinery which has been shifted to the new premises. The relevant Chartered Engineer’s Certificate furnished by the appellant does not appear to have been considered and discussed by both the authorities below.
The matter remanded to the Original Authority for considering the observations as above and to pass de novo orders on the subject - appeal allowed by way of remand.
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2018 (3) TMI 448 - CESTAT NEW DELHI
100% EOU - Since, the appellant had availed Cenvat credit of the CVD amount as per the formula prescribed under N/N. 10/2008-C.E., dated 01.03.2008, the department has objected to such availment of credit and confirmed the adjudged demand - Held that: - the appellant cannot plead that the N/N. 48/2008-C.E.(N.T.), dated 05.12.2008, issued subsequently, providing the formula for Cenvat credit will be applicable with retrospective effect. Further, the said notification nowhere prescribed that the same will have the retrospective operation - the law is well settled that in absence of any express provision contained in notification, ordinarily it cannot be presumed that same is retrospective in nature - the formula prescribed in notification dated 05.12.2008 will be effective prospectively, from its date of publication in the Official Gazette.
Since the appellant has taken Cenvat credit due to wrong interpretation of the statutory provisions, it cannot be said that it had indulged into the activities of fraud, collusion etc. Therefore, the provisions of Rule 15 of the CCR 2004 cannot be invoked against the appellant for imposition of penalty.
Appeal allowed in part.
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2018 (3) TMI 447 - CESTAT KOLKATA
Clandestine removal - penalty u/s 11AC of the CEA 1944 - Held that: - It is well settled law that the judicial precedence would be applied in the context of each facts of the case. In the present case, the Assessee is not disputing the demand of duty on clandestine removal of the goods and therefore imposition of penalty u/s 11AC of the Central Excise Act is liable to be invoked - the imposition of penalty on the Assessee is required to be upheld.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 446 - CESTAT CHENNAI
CENVAT credit - Duty on depreciated value of capital goods removed - the department was of the view that the capital goods have been removed as such and that the assessee is liable to reverse the credit - Board Circular No.43/34/2002-CX dated 1.7.2002 as well as Circular No.495/16/1993 dated 26.5.1993 - Held that: - As per the Board’s Circular, during the relevant period, the assessees are liable to pay duty on the basis of the depreciated value of the capital goods removed on the credit availed capital goods - the Commissioner (Appeals) has given a very reasoned order by setting aside the confirmation of demand and directed the lower authority to requantify the duty on the basis of the depreciated value of the capital goods - appeal dismissed - decided against Revenue.
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2018 (3) TMI 445 - CESTAT CHENNAI
Amendment of cause title - The department is shown in the appeal with jurisdiction of Commissioner of Service Tax, Chennai, whereas now the same has been changed as The Commissioner of GST and Central Excise, Chennai South Commissionerate, MHU Complex, 692, Anna Salai, Nandanam, Chennai-600035 - Held that: - the prayer for amendment of the cause title as also the address for communication of the department needs to be amended in accordance with the change of address/jurisdiction of the department - application allowed.
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2018 (3) TMI 444 - CESTAT CHENNAI
Change of cause title - change from Commissioner of Central Excise, Chennai – II to the principal Commissioner of GST and Central Excise, Chennai North Commissionerate consequent upon the introduction of GST and the resultant change in the jurisdiction - Held that: - the miscellaneous applications for change of cause title allowed - application allowed.
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2018 (3) TMI 443 - CESTAT CHENNAI
CENVAT credit - it was alleged that assessee has not reversed the credit when the capital goods / inputs were transferred from API unit to the Formulation Unit - violation of Rule 3(5) of CCR - Held that: - taking into consideration, the subsequent event that both the units have merged into one single unit, the remanding the matter for reconsideration by the authorities below would be a futile exercise - the whole situation is revenue neutral one - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 442 - CESTAT CHENNAI
Amendment of cause title - The department is shown in the appeal with jurisdiction of commissioner of Central Excise, Puducherry, whereas now the same has been changed as The Commissioner of GST and Central Excise, No.1, Williams Road, Cantonment, Trichy – 620 001 - Held that: - the prayer for amendment of the cause title as also the address for communication of the department needs to be amended in accordance with the change of address/jurisdiction of the department - application allowed.
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2018 (3) TMI 441 - CESTAT CHENNAI
Penalty u/s 11AC - CENVAT credit - it was alleged that the appellant had transferred the capital goods/inputs without raising invoices and without reversing the credit - Rule 3(5) of CCR 2004 - Held that: - The credit was reversed even prior to the visit by the officers. The double credit availed was reversed immediately on being pointed out. Taking the facts into consideration, the facts do not disclose any intention on the part of the appellant to evade payment of duty. Therefore, the imposition of penalty is unjustified and requires to be set aside - appeal allowed in part.
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2018 (3) TMI 440 - CESTAT CHENNAI
Benefit of N/N. 4/2006 and 4/2007 - Cement - The department was of the view that appellants have to discharge the duty on the clearances of cement for own use or for such buyers will not fall under the category of institutional consumers - Held that: - The issue whether assessee / respondent is eligible for concessional rate of duty under Notification No.4/2006 is settled by the decision in the case of ACC Ltd. Vs. Commissioner of Central Excise, Coimbatore [2017 (8) TMI 1168 - CESTAT CHENNAI], where it was held that the provisions applicable to packages intended for retail sale in Chapter II of the said rules, will not apply to the clearances of cement by the appellant to its Industrial or Institutional consumers. - appeal dismissed - decided against Revenue.
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2018 (3) TMI 411 - TELANGANA & ANDHRA PRADESH HIGH COURT
Evasion of tax - prosecution case is that A4 and A5 having obtained permission from the Deputy Commissioner, Central Excise, Guntur for destruction of two autoconers, indeed, did not do so, but they, with the conspiracy of A1 to A3, fabricated record of destruction in their premises and sold the two autoconers to M/s.SJSML for ₹ 50 lakhs - Whether there are merits in this Criminal Petition to quash the proceedings in C.C.No.29 of 2006?
Held that: - civil and criminal proceedings can be initiated simultaneously and judgment in one proceeding will not have impact on the other - In the case on hand also, merely because CESTAT held that A4 and A5 need not pay the tax as claimed before the Commissioner, Customs and Central Excise, Guntur and approved by him, the criminal proceedings cannot be quashed.
The CESTAT observed as if it was not in dispute that machinery was dismantled under the supervision of the Central Excise Range Officers and cleared from the factory as scrap. When the foundation for case of the Department was that two autoconers were not destructed despite obtaining permission, it is quite astounding as to how the CESTAT observed that the destruction of two autoconers was not in dispute. Therefore, though the order of the CESTAT attained finality on civil side, still criminal proceedings against fraud and cheating can be independently established by the prosecution.
Petition dismissed - decided against petitioner.
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2018 (3) TMI 410 - CESTAT NEW DELHI
CENVAT credit - trading activity undertaken by the appellant - demand of 6% of trading activity - Held that: - learned Commissioner (Appeals) failed to understand that there is no trading services, there is only trading activity as per the provisions of Finance Act also, the activity of trading is termed as an exempted service but there is no trading service - appellant has taken cenvat credit and not claimed the refund thereof. Therefore, it would be only a revenue neutral situation, the appellant is not required to pay 6% of the value of trading activity.
Extended period of limitation - Held that: - the goods have been exported by the appellant under ARE 1 document and the same was in the knowledge of department - extended period not invocable.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 409 - CESTAT CHANDIGARH
Refund of education/ higher education cess - Revenue entertained a view that such cess is not refundable as no exemption is provided for the same - appellant enjoyed area based exemption under N/N. 56/2002-CE dated 14/11/2002 - Held that: - reliance placed in the case of M/s. SRD Nutrients Private Limited Versus Commissioner of Central Excise Guwahati [2017 (11) TMI 655 - SUPREME COURT OF INDIA], where it was held that appellants were entitled to refund of Education Cess and Higher Education Cess which was paid along with excise duty once the excise duty itself was exempted from levy - decided in favor of appellant.
Valuation of excisable goods - outward freight up to the place of delivery of their finished goods - includibility - Held that: - the appellant have not produced anything on record which would show that they had cleared the goods from the factory gate to a warehouse, any other premises, a depot, consignment agents premises etc. from where such excisable goods were sold. Admittedly, the goods sold by the appellant delivered at the buyers premises will not make the place of removal as buyers premises - there is no justification for the appellant to consider the assessable value with inclusion of freight element after the goods were sold/removed from the factory - decided against appellant.
Appeal allowed in part.
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2018 (3) TMI 408 - CESTAT MUMBAI
Refund claim - unjust enrichment - Held that: - since the documents were not before the Commissioner (Appeals) and, therefore, the Commissioner (Appeals) has not examined these documents. Further, the appellant has produced these documents before me, but the same has not been examined by the original authority - this case needs to be remanded back to the original authority to examine afresh various documents viz. balance sheet and the certificate issued by the Chartered Accountant and then decide the refund claim of the appellant - appeal allowed by way of remand.
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2018 (3) TMI 407 - CESTAT HYDERABAD
EOU - demand of interest - N/N. 52/2003-CUS and 22/2003-CE - imported raw materials on which duty has been foregone and material utilised for manufacturing of finished goods - Held that: - even if the Revenue Authorities demand the interest liability, on the raw-materials which were imported and used, the amount paid excess by the respondent would suffice for the demand of the interest, if any - It can be noticed that any excess payment can be adjusted towards the duty of payable by a person is contemplated and it would mean including the interest also and in this case there cannot be any recovery of interest - interest not warranted - appeal allowed in part.
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2018 (3) TMI 406 - CESTAT HYDERABAD
Demand of excise duty - goods cleared as spent solvents - It is the case of the Revenue in the SCN as confirmed by the Lower Authorities that the spent solvents which are distilled and purified in the appellant s premises are manufactured products and liable for excise duty - Held that: - the issue is no more res integra, the decision of Jurisdictional High Court of Andhra Pradesh in the case of COMMISSIONER OF C. EX., HYDERABAD-I Versus AUROBINDO PHARMA LTD. [2010 (10) TMI 175 - ANDHRA PRADESH HIGH COURT] has come to a conclusion which is in favour of the assessee. It was held in the case that the spent solvent is not a marketable product after process of manufacture.
The law is settled which is in favour of the appellant i.e. spent solvents are not to be excisable.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 405 - CESTAT HYDERABAD
CENVAT credit - common inputs/input services for taxable as well as exempt goods - demand of an amount equivalent to 8% or 10% of the value of the exempted goods - Held that: - the Adjudicating Authority has diligently gone through the entire case records and held in favour of respondent with which we concur - We find no reason to interfere in such a reasoned order given by the Adjudicating Authority as Revenue has not contradicted the findings effectively and hold that the impugned order is correct and legal and does not require any interference - appeal dismissed - decided against Revenue.
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2018 (3) TMI 404 - CESTAT HYDERABAD
Recovery of duty alongwith interest - Advance licenses - Held that: - It is also seen from the records that the Ministry of Commerce and Industry by letter No. 8/EOU/495/Prop/2005/5060 dated 27.10.2005 had informed the respondent herein that exports effected prior to 1.4.2000 needs no regularisation; and by letter 8/EOU-495/Prop/2005/5060 dated 27.10.2005 had informed the respondent herein that exports effected prior to 1.4.2000 needs no regularisation; and by letter 8/EOU/495/VSEZ/2006/4887 dated 14.08.2006 regularised the exports made post 1.4.2000 by the respondent from the third parties - the learned Commissioner was correct to hold that the proceedings initiated by the show-cause notice needs to be dropped - appeal dismissed - decided against Revenue.
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