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Central Excise - Case Laws
Showing 361 to 380 of 412 Records
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2017 (9) TMI 220 - CESTAT MUMBAI
CENVAT credit - inputs - duty paying documents - it was alleged that the inputs brought by them into their factory on the strength of certain documents issued by the registered dealers were not the same on which the Central Excise duty was originally paid - Held that: - the quality and description of the goods have been admitted to be different in the statement given by the Director of the company. The said statement has not been retracted. In these circumstances, even without relying upon the statement of the dealer and their agents, charges are proved against the appellants and thus statement of dealers and agent become irrelevant - this was not a case which required cross-examination. The Directors themselves admitted the guilt. So, almost all allegations stood proved - appeal dismissed - decided against appellant.
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2017 (9) TMI 219 - CESTAT AHMEDABAD
CENVAT credit - duty paying documents - whether the appellants are entitled to CENVAT credit availed on the debit notes relating to reimbursement of expenses? - Held that: - though said services availed by M/s Laffans Petrochemicals Ltd. in terms of Logistics Agreement, the same can not be made cenvatable in as much as M/s Laffans Petrochemicals Ltd. quoting their own Service Tax Registration No. along with particulars of service tax & Invoice Nos. of respective service providers cannot be considered as valid duty paying document in terms of provisions of Rulem9(1) of Cenvat Credit Rules, 2004 - service tax amount shown in the debit notes representing reimbursable expenses is inadmissible to credit - appeal dismissed - decided against appellant.
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2017 (9) TMI 218 - CESTAT CHANDIGARH
Valuation - job-work - Rule 4(5)(a) of the CCR - liability of principal manufacturer or job-worker - Held that: - the respondent were working in terms of the provisions of Rule 4(5)(a) of the Cenvat Credit Rules which allows the job worker to clear the final product to the principal manufacturer, without payment of duty, subject to following the requisite procedure. In such a situation it is the liability of principal manufacture to pay the duty - There is no allegation that the principal manufacturers have not discharged the duty burden - job-worker not liable to pay - appeal dismissed - decided against Revenue.
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2017 (9) TMI 217 - CESTAT CHANDIGARH
Deemed export - Clearances to 100% EOU - recovery of CENVAT credit - non-maintenance of separate set of books for exempted and dutiable goods - Held that: - the goods supplied against CT-1 to EOU are specified in exception to Rule 6(6) itself - the benefit of Rule 6(6) of Cenvat Credit Rules, 2004 is allowed to the appellant in respect of the goods exported under LUT and CT-1. In respect of the sales to the domestic tariff area, the appellant would be entitled to adjustment of duty paid against the reversal of Cenvat Credit on inputs used in manufacture of exempted products - In respect of exports against rebate, the matter is remanded back to the adjudicating authority to verify whether the rebate claimed has been returned back by cash by the appellant and if so, the amount paid back in cash be adjusted against 10% of value of exempted goods.
Goods cleared for export - mode of export - Held that: - neither in their submissions before the Ld. Commissioner (Appeals) nor elsewhere is it mentioned whether the export was against LUT/CT-1/rebate, hence, these facts needs to be verified by the adjudicating authority - matter is remanded back to the adjudicating authority for verification as to the mode of export (whether under CT-1/LUT/rebate) and to pass a fresh order in accordance with law.
Appeal allowed by way of remand.
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2017 (9) TMI 216 - CESTAT AHMEDABAD
Clandestine removal - Confiscation of goods - Held that: - Though, Ld. Commissioner (Appeals) has dropped the demand of duty, interest and penalty for the period prior to 01.03.2008, however, directed confiscation of the goods seized which were cleared from the factory prior to 01.03.2008, and found in the premise of the trader and seized under the reasonable belief that appropriate duty has not been paid on the said goods. The said confiscation and personal penalty on the trader, in my opinion is erroneous and cannot be sustained - since the total demand of duty has been reduced from 30,31,383/- to ₹ 4,93,093/-, appellant are entitled to discharge 25% of the penalty equal to the duty, subject to the fulfilment of conditions laid down under section 11AC of CEA 1944 - appeal allowed - decided partly in favor of appellant.
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2017 (9) TMI 215 - CESTAT MUMBAI
SSI exemption - N/N. 8/2003-CE dt.01.02.2003 - excess payment made by appellant of ₹ 89,700/- - penalty - Held that: - against the total demand of ₹ 6,50,962/- the adjudicating authority appropriated ₹ 89,700/- paid through cash and remaining amount of ₹ 5,61,262/- was appropriated, which was debited in Part-II thus there is excess reversal of ₹ 89,700/- for this amount the Commissioner (Appeals) has already granted the relief, that appellant to seek redressal before the appropriate authority - no further relief is due to the appellant on this account.
As regard the penalty imposed under Section 11AC, I am in the agreement with submission of the Ld. AR that after crossing the limit of ₹ 1.50 Crores. The appellant have not taken the reasonable steps for registering themselves and discharging the excise duty. Even though the appellant have been issuing invoices but the details of clearances were not known to the department as neither any registration was obtained nor any periodical returns were filed to the department. Accordingly, there is a clear suppression of fact on the part of the appellant therefore the penalty under Section 11AC was legally imposed by the lower authority which cannot be interfered.
Appeal dismissed - decided against appellant.
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2017 (9) TMI 214 - CESTAT CHANDIGARH
Withdrawal of appeal - Manufacture - CENVAT credit - Held that: - when the Revenue wants to add the value of all the bought out items into whole value of the plant on which they asked duty, the assessee is entitled to take cenvat credit of duty paid on the bought out items. If the same is taken into consideration, the duty liability works out of ₹ 59,227,511/- whereas, the cenvat credit is available to the assessee is ₹ 62,790,745/- which is more than the duty demand. In that circumstance, we note that as it is a Revenue neutral situation - assessee’s appeal is dismissed as withdrawn and the Revenue’s appeal is dismissed on merits.
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2017 (9) TMI 213 - CESTAT NEW DELHI
Demand of duty - Goods supplied to defence installation through National Co-operative Consumer Federation of India Ltd. (NCCF), Jammu - case of appellant is that the appellant was not engaged in the manufacturing of the goods. There was no machinery in the so called factory. He submitted that the goods were manufactured by Shri Ravi Gupta, M/s. Gee Industries, who supplied the impugned goods to NCCF, so they were not required to pay the duty - Held that: - After perusal of the record, it appears that the goods were supplied to the defense establishment through the NCCF. The Director of the NCCF in his statement clearly stated that he had visited the factory and saw the manufacturing activity before placing the order to the appellant. The appellant has supplied the goods to NCCF as a manufacturer, and not as a trader. Payment was received through pay cheques and bills were raised as a manufacturer - It is seen from the NCCF record, that the appellant had manufacturing facilities during the relevant time and they had supplied the impugned goods, Ld. DR had already submitted that in due course the factory was dismantled and machinery loss sold.
At the relevant time, the appellant was engaged in manufacturing of the impugned goods which were supplied to the NCCF as a manufacturer - demand upheld - appeal dismissed - decided against appellant.
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2017 (9) TMI 212 - CESTAT CHANDIGARH
Valuation - related party transaction - part of production was cleared to the independent wholesale parties and only a part was being sold to the alleged related person - applicability of Rule 9 of the Valuation Rules - Held that: - The Larger Bench of the Tribunal in the case of Ispat Industries Ltd. [2007 (2) TMI 5 - CESTAT, MUMBAI] has held that Rule 9 of the Valuation Rules would require an assessee to adopt assessable value equivalent to 115% only where the entire production i.e. 100% is being sold to the related parties - In the present case, there is neither any allegation nor any finding in the impugned order by the authorities below that the appellant was clearing their entire 100% production to the said alleged related persons.
Extended period of limitation - demand for the period 2001-02 was being raised in 2005 - penalties - Held that: - The impugned order has nowhere alleged or given a finding that the appellant was not filing the statutory returns or was not disclosing the said fact to the Revenue or were not maintaining the statutory records. In such a scenario, no malafide can be attributed to the appellant so as to justify invokation of longer period of limitation and penalties.
Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 211 - CESTAT AHMEDABAD
CENVAT credit - input services used for dutiable as well as exempt service - whether the appellant are required to pay 6% of value of the Marble Lumps sold after screening the input marble powder, as they had availed credit on various input services that were used in the manufacture of Calcium Carbonate? - Held that: - Undisputedly the process carried out by the appellant in their factory is that the appellants bring Marble Lumps/ powder etc., subjected it to its process of screening and unsalable marbles were sold, whereas the marble powder, which are to be used in the process of manufacture are accordingly used in the factory. Such an activity, cannot be considered as a trading activity and an exempted service - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 210 - CESTAT NEW DELHI
CENVAT credit - input service - transportation service - place of removal - whether the service of transportation upto the customer's doorstep i.e. "FOR destination" sales where the entire cost of freight is paid and borne by the manufacturer, would be "input service" within the meaning of Rule 2(1) of the CC Rules, 2004? - Held that: - the identical issue has come up before the Tribunal in the case of RCL Cement Limited Vs. CCE, Shillong [2016 (9) TMI 45 - CESTAT KOLKATA], where it was held that credit of service tax paid on the outward freight during the relevant period was correctly taken by the appellant - the claim of cenvat credit on outward freight of the appellants is allowed - appeal dismissed - decided against Revenue.
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2017 (9) TMI 209 - CESTAT CHANDIGARH
Refund - Valuation - includibility - freight - area based exemption - N/N. 56/02-CE dt.14.11.2002 - whether the inclusion of outward freight in assessable value for purposes of section 4 of Central Excise Act, 1944 is in accordance with law? - Held that: - the purchase orders placed on record are on FOR destination basis - The period involved is after 14.5.2003 when the definition of “place of removal” was amended to reintroduce the concept of extended place of removal in Section 4(3) (c) (iii) of the Act. That being so, the place of removal in this case is the premises of the buyers and outward freight has therefore been rightly included in the assessable value - similar issue decided in the case of Krishi Rasayan Exports (P.) Ltd. Versus Commissioner of Central Excise, Jammu & Kashmir [2015 (3) TMI 202 - CESTAT NEW DELHI], where it was held that where an assessee was required to pay duty on FOR price which would include the element of freight from the factory gate to the customers' premises, the provisions of Section 4(3)(c) would apply, to identify the place of removal as the place of delivery to the customer's place on FOR price of the transaction - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 208 - CESTAT MUMBAI
Service of order - Section 37C of the Central Excise Act, 1944 - Appellant's serious grievance is that the order alleged to have been served on the appellant was not delivered to it which has caused delay in filing appeal before the learned Commissioner (Appeals) - Held that: - Record reveals that the date on which the appeal came to the Commissioner (Appeals) has not been recorded by him. In absence of the date on which appeal was filed, computation of period of limitation is not possible - Law is specific that an order can be issued by Registered Post with acknowledgement due to the person or to its authorized person. Ld. Commissioner (Appeals) has verified the status of the Registered Post sent by the adjudicating authority and found that the same was served on 04.01.2008 as per the letter dated 23.06.2008 of Sr. Superintendent of Post Offices.
We find difficulty as to ascertain whether the envelope containing order carried the address properly. That needs verification - the learned Commissioner (Appeals) shall consider the date of filing of the appeal for computing the limitation - appeal allowed by way of remand.
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2017 (9) TMI 207 - CESTAT MUMBAI
Valuation - includibility - transportation, laying, joining, testing charges - place of removal - When the respondent claimed deduction relating to transportation, laying, joining, testing charges from the invoice value received from the main contractor, revenue did not allow deduction thereof but alleged undervaluation of the pipes - Held that: - When the notice issued by the authority below has brought clearly the facts of the contract and also place of removal where the respondent carried out certain activity over the goods cleared from the factory, there is no scope for the respondent to claim deduction since transfer of property of the goods did not pass at the factory gate but transfer thereof occurred after value addition made thereto at the site - appeal allowed - decided in favor of Revenue.
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2017 (9) TMI 206 - CESTAT AHMEDABAD
CENVAT credit - input service - appellants are manufacturer of excisable goods and utilized the Courier Services in sending the Samples, Documents and Finished Goods to their customers - whether the appellants are eligible to CENVAT credit of the Service Tax paid on Courier Services? - Held that: - It cannot be denied that Courier Service involves a host of uses relating to the activity of manufacture and sale of goods. For example, the documents relating to technical expert's opinion, sample testing report, sending of samples, machine catalogue etc., are received and dispatched by utilizing the services of Courier and it cannot be said that these are de hors of the activities of manufacturing business - Tribunal in the case of Long Meditech Ltd [2016 (7) TMI 468 - CESTAT CHANDIGARH] opined that credit avail on Service Tax paid on Courier Serves is eligible to Cenvat Credit.
CENVAT credit - Rent-a-cab services - Held that: - The credit of the service tax paid on rent-a-cab for the said purpose has been held to be admissible by the Hon’ble Gujarat High Court, in the case of Principal Commissioner vs Essar Oil Ltd [
2015 (12) TMI 1062 - GUJARAT HIGH COURT] - credit allowed.
Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 205 - CESTAT NEW DELHI
CENVAT credit - Place of removal - various input services - scope of Rule 2 (l) of Cenvat Credit Rules, 2004 - Rent - Common Area Maintenance Charges and Amenities Charges - Freight & Cartage - Postage & Courier - Security - Legal & Professional - Advertisement - Insurance - Software & Website maintenance and development - Commission charges - Service provided by Commission Agents from State of J&K - Input Service Distributor - the main point of dispute in these appeals is the determination of ‘place of removal’ of excisable goods - Held that: - The main appellant-assessee categorically stated that they transfer their goods to their warehouses from where they further transport them to the retail outlets or warehouses of their commission agents, from where the goods were sold. Hence, it was pleaded that place of removal in terms of Section 4 of Central Excise Act 1044 should be retail outlet/warehouses of commission agents. The goods remain in their ownership, till the time of sale from these retail outlets owned by them or up to the warehouses of commission agents, as the case may be. Freight also is paid by the main appellant-assessee up to the retail outlets/commission agents warehouses. We note that the original adjudicating authority fell in error in arriving at the correct factual position regarding ‘place of removal.’
The Revenue presumed that the services should be in or in relation to manufacture of ready-made garments, whereas Rule 2(l) clearly talks about services used by manufacturers, whether directly or indirectly in or in relation to the manufacture of final products and clearance of final products up to the place of removal. A plain reading of the said statutory provision will indicate that the presumption of the Revenue is not sustainable.
Registration of the main appellant assessee as ISD - Held that: - On examination of provision of Rule 2(m) of the Cenvat Credit Rules, 2004, the Commissioner (Appeals) clearly recorded that, a manufacturer who wants to avail benefit of Service Tax should get registered himself as service provider and then he will be able to account for all the input Service Tax paid in the headquarters and distribute the same to various units. After examining the provisions of Rule 7 of Cenvat Credit Rules, the Commissioner (Appeals) concluded that as the manufacturer was having various retail outlets and office besides the factory for manufacture, in order to utilise the credit of input service got registered with the department as ISD.
CENVAT credit - duty paying invoices - debit notes - Held that: - the appellant-assessee issued challans under Rule 4A of Service Tax Rule, 1994 which contain all the required details. Even in case certain particulars were found missing in the relevant documents, we note that substantial benefit of Cenvat credit cannot be denied on this ground - mention of wrong address of the Service Tax Department on the documents is not a bar to avail the credit.
Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 153 - ALLAHABAD HIGH COURT
CENVAT credit - duty paying documents - Rule 9 of the CCR, 2004 - Held that: - No material has been placed before us to indicate that the original invoices or the copies thereafter were placed on record before the Assessing Officer - the CESTAT is justified in remanding the matter with regard to the admissibility of the Cenvat Credit to the assessee to be reconsidered and decided by the Assessing Officer on the verification of the documents.
Penalty u/r 15(2) of the Rules read with Section 11-AC of the Central Excise Act, 1944 - Held that: - the CESTAT has manifestly erred in setting aside the order of penalty which infact ought to have been left open for decision of the adjudicating authority while deciding the issue of CENVAT credit.
Appeal allowed - decided partly in favor of Revenue.
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2017 (9) TMI 152 - CESTAT CHANDIGARH
Manufacture - conversion of granules into moulding powder - penalty - Held that: - the question of whether the powdering of Low Density Polyethylene (LDPE) and High Density Polyethylene (HDPE) granules into moulding powder would amount to manufacture went for determination right up to before the Hon’ble Supreme Court when it was determined by the Hon’ble Apex Court that as a consequence of new definition of manufacture in terms of Section 2(f), the activity which otherwise do not amount to manufacture, can now be termed as manufacture and thus liable to duty. This was with reference to Chapter Note 6(b) of Chapter 39 of the Central Excise Tariff Act, 1995 - the penalty not leviable - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 151 - CESTAT CHANDIGARH
Benefit of N/N. 84/94 - Change of opinion - Revenue entertained a view that since M/s. Maccas Automotive was not a manufacturing unit but was a trading unit, they were not entitled to the benefit of the notification - Held that: - A manufacturing unit, who is in business, proceeds on the basis of documents produced before him and cannot be held to be a legal expert so as to come to a conclusion, on his own that the benefit of notification was not available to M/s. Maccas Automotive, being a trading firm, especially when an undertaking was produced before them and no objection was ever raised by the Revenue, prior to the period in question - Admittedly, the Assistant Commissioner is more knowledgeable about the legal position and having granted the permission to a trading unit to follow the procedure of exemption notification in question, the duty liability cannot be subsequently fastened on the manufacturing unit, who had acted according to the documents produced before him - such subsequent change in the opinion of the Revenue, resulting in confirmation of demand against the manufacturing unit or confiscation of the goods or imposition of penalties, cannot be appreciated - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 150 - CESTAT AHMEDABAD
CENVAT credit - whether the appellants are eligible to avail cenvat credit on the duty paid viz; Structural Steel/ MS Beam, Base Plate, base Frame, Structure for creel loading system, Lighting Protection Mat etc. claimed to have been used as structures for capital goods? - Held that: - similar issue decided 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.
However, the Appellant should establish the said use by adducing evidences. In the result, the matter is remanded to the adjudicating authority to examine the claim of the appellant on the eligibility of credit on the aforesaid items - appeal allowed by way of remand.
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