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Central Excise - Case Laws
Showing 341 to 360 of 470 Records
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2018 (3) TMI 403 - CESTAT NEW DELHI
Clandestine removal - shortage of raw material - MS billets - Held that: - the production particulars for 21.1.2013 was not recorded in such statutory register, even though the Central Excise officers visited the factory on 24.1.2013. Thus, the provisions of clause (b) of sub-rule (1) of Rule 25 is violated/contravened by the appellant and as such, the excess found stock was liable for confiscation.
Considering the fact that there was no scope for entering the production particulars on 24.1.2013 in the statutory record on the said date and in view of the fact that the balance excess found stock was also available in the factory of the appellant, the quantum of redemption fine and penalty, in this case, can be reduced in the interest of justice.
Appeal allowed in part.
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2018 (3) TMI 402 - CESTAT NEW DELHI
CENVAT credit - it was alleged that appellant had wrongly passed on Cenvat credit to its buyer, without supplying the Cenvatable goods - natural justice - Held that: - though, the appellant has specifically requested for cross-examination of Shri E/51089/17-SM Vikas Gupta, whose statement has been relied on by the department for confirmation of the adjudged demand, but no such opportunity has been given to the appellant for such cross examination. Thus, it is a case of violation of the principles of natural justice - the matter should also be remanded to the original authority for affording opportunity of cross-examination of the witness Shri Vikas Gupta, authorised signatory of M/s Vikas Enterprises by the appellant - appeal allowed by way of remand.
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2018 (3) TMI 401 - CESTAT MUMBAI
Deduction on account of ‘interest on receivables’ - case of Revenue is that that the deduction on account of free replacement of breakages and interest on receivables is not admissible - Held that: - the invoices issued by the Appellant provides for 21 days credit. This period is to be reckoned for the purpose of deduction on account of interest on amount receivables for credit period as the Appellant were claiming/ borrowing funds from the bank - the deduction claimed by the Appellant has to be allowed - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 400 - CESTAT HYDERABAD
Levy of excise duty - distilled methanol cleared by appellant - Held that: - The adjudicating authority has only relied upon the statement of various buyers but has not considered the binding judgment of Hon’ble High Court of Andhra Pradesh in the case of CCE, Hyderabad-I vs. Aurobindo Pharma Limited [2010 (10) TMI 175 - ANDHRA PRADESH HIGH COURT], where it was held that the spent solvent is not a marketable product after process of manufacture.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 399 - CESTAT MUMBAI
Benefit of N/N. 4/2006 dated 01.03.2006 vide Sr. No.47 - The department’s case is that as per Sr. No.47 of 4/2006 and list 3 of Sr. No.58 the product covered under exemption is Natural Micronised Progesterone tablet whereas the appellants product consist of various ingredients, the product is not alone Natural Micronised Progesterone, accordingly, exemption is not available - Held that: - as per the exemption entry the drug and medicine both are exempted. Drug contains only one ingredient i.e. basic drug whereas any medicine which is manufactured out of a drug is invariably consist of other ingredients which is not in the form of excipient. Merely by adding the excipient, the medicine which has character of basic drug does not get altered. Therefore, only by adding excipient the exemption cannot be denied.
From the packing of the product it can be seen that the product sold is Natural Micronised Progesterone. Therefore even though it contains various other excipients, the medicine is clearly covered under Sr. No.58 of the list 3 of N/N. 21/2002-Cus. Therefore it is eligible for exemption N/N. 4/2006-CE.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 398 - CESTAT MUMBAI
Reversal of CENVAT credit - Rule 6 (3) (b) of CCR - it was alleged that M.S Coils/ HR sheets used for manufacture of such pipes were exclusively used for manufacture of exempted final products being of specific grade and were even separately stored hence could not be treated as common input used for manufacture of dutiable or exempted goods - Held that: - as far as demand of cenvat credit of ₹ 1,01,25,986/- is concerned the Appellant has already reversed the 8%/10% amount on the value of exempted goods in terms of Rule 6 (3). We find that even though the inputs has been exclusively used in exempted goods, the assessee cannot be forced not to pay the amount in terms of Rule 6 (3) and instead reverse the credit. Further it is to be seen that apart from said input i.e HR Coils and MS Plates the Appellant has used common inputs i.e welding electrodes, welding wires, flux, oxygen gas, grinding wheels etc. in manufacture of exempted goods and thus reversed the amount in terms of Rule 6 (3) (b). In such circumstances it cannot be said that all the inputs are for exclusive use in exempted final products. The Rule 6 (1) and Rule 6 (3) (b) both cannot be applied in case of such clearances.
Demand of ₹ 64,40,555/- made on the ground that they have used common inputs and hence liable to pay 8%/10% amount in terms of Rule 6 (3) (b) eventhough they have maintained the separate account and the proportionate credit was reversed by them at the time of clearance - Held that: - where the Appellant has reversed the proportionate credit and has also maintained separate accounts of inputs used in such exempted goods, they cannot be forced to pay the amount in terms of Rule 6 (3) (b). It is apparent from the record that the major item i.e MS Plates and HR sheets account was separately maintained and in case of common inputs the credits were proportionately reversed. Further in terms of retrospective amendment to rule 6 of the Cenvat Credit Rules by Section 73 of the Finance Act, 2010 as long as the assessee reverses the proportionate cenvat credit, the same is considered as sufficient compliance with Rule 6 - demand not sustainable.
Demand u/s 11D - Held that: - the show cause notice has nowhere alleged that the said amount has been represented as excise duty by the Appellant. Hence the Board Circular No.599/36/2001-CE dt. 12.11.2001 is not applicable - demand not sustainable.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 397 - CESTAT MUMBAI
Reversal of CENVAT credit - job-work - case of Revenue is that as the said jobwork is exempted in terms of N/N. 214/86 hence the Appellant are liable for reversal of 8/10% amount of the value of jobwork goods i.e. exempted goods in terms of Rule 6 (3) of CCR - Held that: - the issue settled in the case of STERLITE INDUSTRIES (I) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, PUNE [2004 (12) TMI 108 - CESTAT, MUMBAI], where it was held that Modvat credit of duty paid on the inputs used in the manufacture of final product cleared without payment of duty for further utilisation in the manufacture of final product, which are cleared on payment of duty by the principal manufacturer, would not be hit by provision of Rule 57C.
The issue involved stands settled in favour of assessee as credit is available on the inputs used in jobwork activity undertaken in terms of N/N. 214/86-CE - demand set aside.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 396 - CESTAT MUMBAI
Refund of duty paid by their job worker on physician’s sample - Section 4A of the CEA - Held that: - the issue is no more res integra. Hon’ble Apex Court in the case of Sun Pharmaceutical Inds. Ltd. [2008 (9) TMI 992 - CESTAT AHMEDABAD], where it was held that lower assessable value of sample packs does not hold any merit to allege undervaluation with an intent to evade Central Excise duty and calculation of value of sample packs on pro rata basis is not supported by law.
Matter is remanded to the original adjudicating authority to decide following the decision of the Hon'ble Apex Court in Sun Pharmaceutical Inds. Ltd. - appeal allowed by way of remand.
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2018 (3) TMI 395 - CESTAT MUMBAI
Valuation of intermediate product - Proteolysed Liver Extract and Pharma Reptone - Demands were raised against the Appellant by issue of show cause notices on the ground that as per section 4, the value of the goods shall be based on the value of the comparable goods or cost of production, if any - Held that: - the same goods are being purchased by the Appellant from five different manufacturers. The Appellant for the purpose of valuation of such captively consumed goods has made the invoices of all such manufactures as basis, we do not find any reason not to accept such prices of other manufacturer as comparable goods prices - matter remanded back to the adjudicating authority to verify the facts once again and to pass a reasoned order by valuing the goods in terms of Rule 6 (b) (i) of Valuation Rules and to make such adjustments as appear to be reasonable - appeal allowed by way of remand.
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2018 (3) TMI 394 - CESTAT MUMBAI
Classification of goods - Stitch Bonded Fabrics of Glass falling - whether classified under CETH 70199090 or otherwise? - Held that: - waste and scrap of glass is covered under Tariff items 7001 and the nature of scrap in the appellant’s case since does not fall under first two sub-heading will fall under 7001 00 90 as other waste and scrap of glass. There is no dispute that the trimmings and end cut is waste and scrap and technical/chemical characteristics of the material content is undisputedly glass, therefore, there is no doubt that the goods in question is waste and scrap of glass and correctly classifiable under Tariff items 7001 0090.
The goods i.e. trimmings and end cuts arise during the course of manufacture of Stitch Bonded Fabrics of Glass is correctly classifiable as waste and scrap of glass under Tariff items 7001 0090 - appeal dismissed - decided against appellant.
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2018 (3) TMI 393 - CESTAT MUMBAI
SSI exemption - use of Brand name - N/N. 8/2003-CE dt. 01.03.2001 - Held that: - Ultimately the logo of the Appellant was held to be deceptively similar and they were restrained from using said logo which debars them claiming any ownership of said logo ab-initio. Even the application for registration was not filed by the Appellant company but by one of the directors in their individual capacity and hence the Appellant never showed or exercise their ownership upon said logo. Even if the goods were supplied by the Appellant to OEM manufacturer then too they are not entitled to claim any benefit of the exemption notification in question - the Appellant Unit is not eligible for the benefit under exemption notification in question and are liable for duty.
Personal penalties imposed upon Shri Kishore M. Vasant and Shri A. K. Agarwal - Held that: - issue involved is one of interpretation of notification - it cannot be said these persons were involved in intentional duty evasion - penalties set aside.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 392 - CESTAT MUMBAI
SSI Exemption - N/N. 8/2003-CE - since there is no one-to-one co-relation between the inputs and final products under Modvat scheme, hence it is not possible to allow the manufacturer to simultaneously avail modvat on some products and avail exemption on some other products under small scale exemption scheme - Held that: - Hon’ble Supreme Court judgment in the case of Nebulae Health Care Ltd [2015 (11) TMI 95 - SUPREME COURT], wherein it was held that if Cenvat credit is availed in respect of goods manufactured for others and not on goods manufactured on own account and once excise duty is paid on the goods manufactured for others the SSI unit is entitled to avail benefit of SSI exemption on the goods manufactured on own account.
Once the assessee is maintaining separate records and is not availing availing credit on inputs used for the production of goods, which are cleared under N/N. 8/2003-CE dt. 1.3.2003, they are eligible to claim exemption under the said notification.
The Appellant is eligible for the benefit of SSI exemption and the demands are not sustainable - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 350 - KERALA HIGH COURT
Validity of assessment order - main activity, according to the petitioner, is the supply and installation of goods purchased from the vendor by integrating such goods to the need of such customer - Held that: - The power of the Commissioner would depend upon the factual situation. In that sense, without adverting to the factual situation, the Commissioner could not have exercised the power. That means the Commissioner had erred in exercising the jurisdiction to pass such order - this Court can invoke the power under Article 226 of the Constitution to set right such jurisdictional error committed in the decision making process. Therefore, the impugned order is set aside leaving it for reconsideration - appeal allowed by way of remand.
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2018 (3) TMI 349 - CESTAT MUMBAI
Valuation - whether the price prevailing for sale at depot immediately prior to the clearance from the factory gate was to be adopted or the price prevailing at the depot at the point of time nearest to the time of clearance from the factory gate was to be adopted for the purpose of assessment? - Circular No. 643/34/2002-CX dt. 1.7.2002 - Held that: - the words used in a clarification are the nearest date when clearances of the goods were affected from the depot or other place should be taken into consideration - Similarly in the Circular dt. 30.6.2000, in the example for clearance of goods from factory on 5.7.2000 the price of sale at depot on 1.7.2000 was adopted. It is apparent that the CBEC wishes to adopt the price which is available at the time of clearance from the factory. The other interpretation sought by Revenue would perforce make all the clearances from the factory provisional and assessable price at the time of clearance from factory sale would always remain indeterminate - interpretation adopted by the appellant appears to be proper.
Reliance placed in the case of EI. DU PONT INDIA PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, CHENNAI [2004 (10) TMI 481 - CESTAT, NEW DELHI], where it was held that Once the normal transaction value of the impugned goods sold from other place at or about the same time is ascertainable, there is no need to determine the assessable value on the basis of price at which the goods may be sold subsequent to the time of removal of goods.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 348 - CESTAT MUMBAI
Classification of goods - spent catalyst - whether classified under CETH 2620.00 of the CETA, 1985 or otherwise? - Held that: - it has been consistent view of Apex Court that spent catalysts cannot be considered to be a result of manufacturing process and thus there cannot be any liability under Central Excise on spent catalysts - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 347 - CESTAT KOLKATA
Clandestine removal - sub-contract - Held that: - In the present application for additional evidence, the appellant had not produced any documents or witnesses to be examined or affidavits and therefore such application is without any substance. The appellant in their Memo of Appeal contested the demand of ₹ 1,96,181.00. The goods were supplied by one invoice to the consignment on payment of Central Excise duty and the same Invoice no. was used showing another consignee s name where no goods were supplied and the said Invoice was used for the purpose of managing Bank Loan from the Indian Bank, Durgapur Brach, which was duly acknowledged by the Bank.
Admittedly, the appellant maintained parallel Invoice so the onus lies with the assessee to establish that the second set of Invoice was not used for clearance. It cannot be shifted on the department by stating that the Officers had not enquired the matter - the appellant paid the duty before issuance of the SCN partly. So, they are entitled to avail the option to pay penalty of 25% of duty as per proviso to Section 11AC of the CEA 1944.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 346 - CESTAT CHENNAI
Extended period of limitation - SCN was issued proposing to demand duty alleging that these cannot be considered as scrap of accessories and that duty has to be paid considering the goods to be capital goods and also allowing depreciation - Held that: - The original authority has taken note of the Chartered Engineer s certificate and observing that the goods have been procured duty free under cover of CT3 certificates has dropped the proceedings upholding the payment of duty to the tune of ₹ 31,701/- and interest thereof. It is to be mentioned that the impugned goods were procured under CT3 certificate and the department was in full knowledge about such procurement as well as the exit of the appellant from EOU scheme. Therefore, the show cause notice issued invoking extended period alleging suppression of facts cannot sustain.
The appellant has made out good case on limitation - demand is time barred - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 345 - CESTAT HYDERABAD
Refund claim - whether refund could be rejected based on the Education Cess and Secondary & Higher Education Cess has already been collected from their customers - time limitation - unjust enrichment - Held that: - if the amounts which is required to be paid as reversal for the exempted goods cleared is in itself has not a duty but an amount, the question of levy of Education Cess would not arise.
The undisputed fact is the amount paid by respondent being an amount and does not amount to duty, the provisions of Section 11B of the Central Excise Act, 1944, would not get attracted to such refund claims, and the bar of unjust enrichment will not apply, as the said provisions of Section 11B of Central Excise Act, will apply to refund is a duty.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 344 - CESTAT HYDERABAD
CENVAT credit - items like angles, channels, joists, TMT bars, mill plates etc. - denial on the ground that these items are not capital goods nor components in machineries and therefore are not covered under the definition of inputs - Held that: - issue covered by the decision in the case of M/s. Singhal Enterprises Private Limited Versus The Commissioner Customs & Central Excise, Raipur [2016 (9) TMI 682 - CESTAT NEW DELHI], where it was held that applying the “User Test” to the facts in hand, we have no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of ‘Capital Goods’ as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat Credit - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 343 - CESTAT HYDERABAD
Manufacture - goods processed/manufactured by the appellants out of the free issue of input materials received from their customers and galvanisation of the manufactured goods received by them from their customers and after the required processes the goods were returned to the customers form whom the input goods were received - Held that: - identical issue decided in the case of M/s Krishna Saa Fabs Pvt. Ltd. Versus CC & CE, Tirupati [2016 (7) TMI 771 - CESTAT HYDERABAD], where it was held that process undertaken by the respondents do not amount to manufacture as the MS rods, plates, angles etc. remain the same even after the process have been carried out. Therefore, there is no new manufacturing process involved.
Appeal dismissed - decided against Revenue.
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