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Central Excise - Case Laws
Showing 41 to 60 of 189 Records
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2012 (8) TMI 859 - CESTAT BANGALORE
Waiver of pre deposit - CENVAT CRedit - Place of removal - CFA service - - Held that:- goods manufactured by the appellant were sold through the CFA. It is also not in dispute that the goods were physically conveyed by the appellant to the buyers through the premises of the CFA. If that be the case, the CFA’s premises would also qualify to be “place of removal” in terms of Section 4(3) of the Act. However, this finding is not enough to give relief to the appellant inasmuch as the definition of input service for the period from 1-4-2008 envisages transportation of goods upto the place of removal. In the instant case, CFA service was received by the appellant for supply of the goods from the CFA’s premises to the buyers (dealers). On this factual matrix, the appellant has not made out prima facie case - Conditional stay granted.
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2012 (8) TMI 858 - CESTAT AHMEDABAD
Duty demand - Penalty - Suppression of facts - Duty evasion - Held that:- in this case it cannot be said that there was mis-statement or suppression of fact with intention to evade duty. As regards limitation, the appellant is not claiming the same and has already paid the duty and is not challenging the demand for duty and interest also. The appellant is seeking only waiver of penalty on the ground that there was no intention to evade payment of duty or suppression of facts or make mis-statements. - Penalty set aside - Decided in favour of assessee.
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2012 (8) TMI 857 - CESTAT AHMEDABAD
CENVAT credit - Wrong availment of CENVAT Credit - Goods received from 100% EOU - Held that:- there is no dispute as regards the amount of cenvat credit wrongly taken but only penalty issue has to be decided. As submitted by the ld. C.A., this Tribunal in the decision of Welkin Polymers (P) Ltd. [2010 (1) TMI 465 - CESTAT NEW DELHI] has taken a view that in such cases it cannot be said that there was suppression or mis-statement on the part of the assessee to avail cenvat credit wrongly. Moreover as soon as the omission was pointed out, the appellants have voluntarily debited the cenvat credit with interest without waiting for any proceedings to be initiated - liability for the cenvat credit incorrectly availed is not being questioned and the confirmation is also not being challenged. In view of the above discussion, while upholding the confirmation of the demand for wrongly availed cenvat credit with interest, the penalty imposed on the appellant is set aside - Decided partly in favour of assessee.
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2012 (8) TMI 856 - CESTAT AHMEDABAD
CENVAT Credit - custom house agent and clearing and forwarding services - Held that:- reliance of the Commissioner (Appeals) on the decision of the Tribunal in the case of CCE Chennai Vs. Sports India Laboratories Ltd. [2009 (10) TMI 175 - CESTAT, CHENNAI] is appropriate. This Tribunal has taken the view that when the exports take place on FOB basis, the place of removal cannot be considered as factory gate since the possession of the goods does not get passed on to the buyer. Further, the CBEC circular No.97 dated 23.08.07 also supports the view as observed by the ld. Commissioner. Further, it is also not correct to say that the CHA service and C&F agency service have no nexus with the manufacture. There cannot be any manufacture if the goods are not sold and once the place of removal is held to be port, the services received up to that point have to be held as related manufacture only - Decided against Revenue.
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2012 (8) TMI 855 - CESTAT AHMEDABAD
Penalty - Enhancement of penalty - Wrong availment of Credit - Malafide intention - Held that:- penalty on the managing director need not be imposed when the assessee was penalized. Further it also cannot be said that Commissioner has not considered the gravity of the offence of the director. He has said that gravity of the offence of the director cannot be more than that of the company. Having regard to the decision of the Tribunal and the quantum of penalty imposed on the assessee and having regard to the fact that penalty, interest and duty was paid by the assessee promptly for which also the director can be said to be responsible and having regard to the facts and circumstances of the case, I consider that penalty on the director need not be enhanced - There is no indication that director received extra benefits from the company for availing the wrong benefit. In view of the fact that he has not received any extra benefit or personally did not benefit more than what he was entitled to because of wrong availment of credit, I consider that penalty of Rs.1,25,000/- confirmed in the impugned order is sufficient - Decided against Revenue.
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2012 (8) TMI 854 - CESTAT AHMEDABAD
Denial of refund claim - laims were originally rejected on the ground that they were received in the office of the refund sanctioning authority beyond the time limit prescribed under Notification No.41/07 - Commissioner allowed refund - Held that:- respondents entertained a bonafide belief that the claim has to be filed before the Assistant Commissioner in Mumbai since their head office was located in Mumbai. Moreover, during the relevant time the notification was still being implemented and respondents were new to the system. Further, I also find that his reliance on the decision of the Tribunal in the case of Rajdhani Impex Pvt. Ltd. [2007 (4) TMI 432 - CESTAT, MUMBAI] is relevant. In this decision it was held that a party when prosecutes the case before wrong forum under a bonafide belief, the period spend therein would be excluded for limitation. In view of the decision cited above and in the facts and circumstances of this case, I do not find that there is need to interfere with the impugned order - Decided against Revenue.
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2012 (8) TMI 853 - CESTAT AHMEDABAD
CENVAT Credit - cenvat credit in respect of High Pressure gauge, Electric Machine Pump, RTD sensor, Thermo Couple, P.H. Electrode, Carbon filled bush, Branded Gland packing and Gland packing - Held that:- In respect of carbon filled bush and PH electrode, both are parts of machineries and get consumed when the machineries are used and therefore have been held as consumables. Just because they have to be frequently replaced, it cannot be said that they are in the nature of capital goods. Further, it also cannot be said that just because after some time they are required to be replaced, they cease to be part/accessory of the machine. Under these circumstances, the credit is to be allowed on carbon filled bush and PH electrode. As regards branded gland packing and gland packing, these items have been used to arrest leakages in pumps, heat exchangers and compressors - leakage is plugged the products used for plugging the leakage and ensured that the leakage does not occur in the machine/wall whatever it is. In reality they become part and parcel of the machine and so long as they are intact the leakage does not happen. In view of the above, the credit is rightly available on these items - Decided against Revenue.
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2012 (8) TMI 852 - CESTAT NEW DELHI
Waiver of pre deposit - CENVAT Credit demand - Held that:- appellant admittedly have used 20% to 40% of fresh plastic along with plastic waste and scrap for manufacture of PVC/PE granules and in respect of duty paid fresh plastic used as input, they have availed Cenvat credit. The appellant have paid the duty on the final product to the extent possible by availing Cenvat credit and have paid the balance amount of duty through PLA whose self-credit has been taken in terms of Notification No. 56/2002-C.E. According to the Department their product is fully and unconditionally exempt from duty under Notification No. 4/2006-C.E. (Sl. No. 78) as their final products have been manufactured mainly out of plastic waste and scrap. If this plea of the Department is accepted, the appellant’s duty liability would be nil. By availing exemption Notification No. 56/2002-C.E., the appellant have got refund by way of self-credit of the duty which had been paid by them through PLA. Thus so far as the appellant are concerned, this is a revenue neutral situation, as irrespective of whether the appellant availed Notification No. 56/2002-C.E. or Notification No. 4/2006-C.E. (Sl. No. 78) their net duty liability would be nil - Stay granted.
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2012 (8) TMI 851 - CESTAT NEW DELHI
Denial of CENVAT Credit - Revenue contends that appellant’s unit is not eligible for Cenvat credit in respect of paints, as the same is not an input for manufacture of parts of towers - Held that:- appellant’s head office is registered as provider of taxable service and they are paying service tax on the charges for erection and installation of towers which also involving painting of the same. Hence, paint received by them can be treated as inputs for providing taxable service, and the appellant would be eligible for Cenvat credit in respect of the same which could be utilized for payment of service tax. Thus, even if cenvat credit in respect of paint is denied to the appellant’s manufacturing unit, the same would be available to the head office registered as service provider for payment of service tax as erection and installation service. Prima facie, we also find substance in the plea of the appellant that the duty on parts of tower had been paid on the value which included the value of paints. In view of this, we are of the view that the appellant have a strong prima facie case in their favour and hence requirement of pre-deposit of demand of Cenvat credit demand and interest thereon and penalty is waived for hearing of the appeal and recovery thereof is stayed till disposal of the appeal - Stay granted.
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2012 (8) TMI 850 - CESTAT NEW DELHI
CENVAT Credit - import of N-Butyl acetate and selling the same - Whether this activity is trading activity or not - Held that:- appellant after importing N-Butyl acetate in bulk and cleared the same in smaller packs after repacking as such in view of Chapter Note 10 of Chapter 29 the activity carried out by the appellant amounts to manufacture. As such the appellant has rightly cleared the goods on payment of excise duty and availed the Cenvat credit on CVD paid by him. In the alternative, it is contended that even if the plea of the department is accepted that the activity carried out by the appellant did not amount to manufacture the department after having accepted the excise duty is not justified in denying the Cenvat credit on the inputs i.e. N-Butyl acetate. Thus, it is submitted that appellant has a strong prima facie case to justify the waiver of condition of pre-deposit of duty, so far as Cenvat credit in relation to N-Butyl acetate is concerned - Conditional stay granted.
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2012 (8) TMI 849 - CESTAT BANGALORE
Demand of differential duty - Bar of limitation - Held that:- The raw materials supplied by M/s Telco were received by the appellant under Rule 57F(3) challans which clearly indicated that the raw materials had been cleared for job work under the said Rule. The appellant accordingly followed the job work procedure by manufacturing the intended product by making use of raw materials supplied by M/s Telco as well as inputs procured by the appellant themselves, and supplying the product to M/s Telco on payment of duty. The invoice issued in connection with the clearance of the job worked goods clearly indicated the amount of duty paid by the appellant on the cost of their own inputs plus job work charges including margin of profit. The job-worked goods were, in turn, used by M/s Telco in the manufacture of excisable products which were cleared on payment of appropriate duty - formidable case found for the appellant on the ground of limitation. There is no evidence of the appellant having suppressed material facts with intent to evade payment of appropriate duty of excise on the job-worked goods - Decided in favour of assessee.
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2012 (8) TMI 848 - CESTAT BANGALORE
Availment of CENVAT Credit - Distribution of credit - Held that:- prima facie the utilization of the services of management consultant services for the purpose of selling one of the divisions of the appellant-assessee for the purpose of raising finance should be treated as ‘input service’ and therefore, the credit may be admissible and that distribution of the said credit to the appellant’s manufacturing unit in Bangalore is validly done. In view of the above, the demand raised and penalties imposed, prima facie, are not justified - Stay granted.
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2012 (8) TMI 847 - CESTAT NEW DELHI
Waiver of condition of pre-deposit of penalty - Multi Track Pan Masala Making Machine No. PK 90 GHP - Penalty has been imposed on the appellant on the ground that he abetted evasion of excise duty by wrongly describing the machine in the invoice as ‘Simplex single track Pan Masala packing machine’ - Held that:- it is apparent that the case of the appellant is not covered under clause (1) of Rule 26 as he has not dealt with excisable goods in any manner whatsoever. He has only supplied the packing machine. Coming to clause (2) of Rule 26, under this clause, prima facie the case of the appellant is not covered because neither there is any evidence that the appellant issued the invoices which according to the Department wrongly described the packing machine nor is there any evidence that the aforesaid wrong description in the invoices was given by the issuing clerk on the instruction of the appellant who is Director of the company. Further, ld. Jt. CDR has failed to point out any evidence which may show that the appellant in any manner entered into conspiracy with the main assessee M/s Dharampal Satyapal Ltd. or he has abetted the making of wrong invoices or evasion of excise duty. Thus we are of the view that appellant has a strong prima facie case which calls for waiver of the condition of pre-deposit of penalty for hearing of the appeal - Stay granted.
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2012 (8) TMI 846 - CESTAT BANGALORE
Registration certificate - Inclusion of other premises within the scope of same certificate - Scope of order of Commissioner - Judicial or Quasi Judicial - Commissioner rejected request for grant of single registration in respect of existing premises - Commissioner (Appeals) allowed appeal - Held that:- any person or class of persons who may not require registration may be specified by the Board by notification. Further, the rule provides that the registration under Section 6 shall be subject to such conditions, safeguards and procedures as may be prescribed by the Board by notification. In this context, the provisions of Chapter 2 of CBEC’s Excise Manual of Supplementary Instructions, 2005 become relevant. - Commissioner is the proper officer to deal with an application for common registration and that he shall take into account all the relevant factors while dealing with such an application.
This would, in turn indicate the applicant requires to be heard so that he/they would get an opportunity to place before the Commissioner all those factors which according to him/them are relevant to the application for registration. However, as per the above instructions, the burden is on the Commissioner to decide ultimately the relevance of all the factors and then to reckon them in the context of dealing with the registration application. The instruction explicitly says that the Commissioner has to decide the issue case by case. This procedure has all the trappings of a quasi-judicial process and the outcome of such process would necessarily be a quasi-judicial order.
Having found the process of consideration of a registration application under Rule 9 by the Commissioner concerned to be of quasi-judicial character, we have to hold that the decision communicated to the respondent in the letter dt. 05/11/2009 of the Deputy Commissioner (Tech.) is quasi-judicial in character. The decision communicated to the respondent was that of the Commissioner concerned and, therefore, it was not appealable to the Commissioner (Appeals). The objection raised by the Department in the present appeal is perfectly valid - Decided in favour of Revenue.
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2012 (8) TMI 845 - CESTAT AHMEDABAD
waiver of pre-deposit of penalty - Eligibility of benefit of Serial No. 90/93 of the Notification No. 4/2006-C.E., dated 1-3-2006 - Held that:- Appellant has availed the benefit of Serial No. 93 of the notification, which talks about discharge of duty liability at the rate of 8% on the paper and paper boards manufactured by the appellant. It is undisputed that the appellant is covered under serial No. 93. At the same time, Revenue’s case is that the appellant is required to avail benefit of Sl. No. 90 of the said notification, as the said entry talks about exemption to first clearance of 3500 MT of paper and paper board. On perusal of the said notification, we are of the considered view that appellant cannot be, prima facie, denied to benefit of discharging reduced rate of excise duty as per Sl. No. 93 of the Notification No. 4/2006-C.E. - appellant has made out a prima facie case for waiver of pre-deposit of amounts involved. Accordingly, the application for the waiver of pre-deposit of penalty amount involved is allowed and recovery thereof stayed till the disposal of appeal - Stay granted.
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2012 (8) TMI 844 - CESTAT KOLKATA
Waiver of deposit of MODVAT Credit - Deemed credit - Discharge of burden of proof - Held that:- this is a case of deemed Credit, and the benefit can be denied only under the exceptional categories. Prima facie, we find that the Department could not show that the Applicant’s case falls under the exceptional categories. Further, the Department challenged to deny the benefit to the Applicant on the ground that the inputs are exempted vide Notification No. 182/84-C.E., as amended. The aforesaid Notification is conditional Notification and not unconditional, therefore, the onus would continue to lie on the Department to show that the inputs in this case are clearly recognizable as non-duty paid. We find that the Department could not produce any document showing that the goods were charged to nil rate of duty or had been cleared without payment of duty or were exempt. On the other hand, proceedings were initiated against the Applicant on the ground that the Applicant could not produce any tangible evidence in their support, that the goods are clearly non-duty paid. The Department’s case rests only on the ground that the Notification No. 182/94, as amended, has not been complied with - Stay granted.
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2012 (8) TMI 843 - CESTAT NEW DELHI
Refund claim - No provisional assessment during the period of dispute - Held that:- though the supplies to MP State Electricity Board had been made during the period of dispute against a contract with price variation clause, there was no provisional assessment. It is settled law that when there is no provisional assessment and the duty is paid on the goods in terms of the price quoted in the invoices at the time of clearance from factory, subsequent reduction of price cannot be the basis for claim under refund of duty. In this case other than a letter issued by an official of MP State Electricity Board, no evidence has been produced by the respondent in support of their claim that the price had been revised downward before the clearances of the goods, in question. In view of this, the impugned order is not correct - Decided in favour of Revenue.
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2012 (8) TMI 842 - CESTAT MUMBAI
Denial of refund claim - Unjust enrichment - Held that:- The provisions of unjust enrichment does not apply if the refund pertains to credit of duty on excisable goods used as inputs in the manufacture of goods which are exported. In the instant case there is no dispute on this point. Therefore, the lower appellate authority is completely wrong when she says the provisions of unjust enrichment are attracted. Reliance placed on Mafatlal Inds. case by the lower appellate authority is also incorrect inasmuch as the said decision pertains to a situation where the provisions of unjust enrichment would apply. When Section 11B providing for grant of refund of excise duty specifically provides that in certain specified situations, the provisions of unjust enrichment shall not apply, the law has to be interpreted and enforced accordingly - Following decision of Asst. Comm. v. Indo Nippon [2002 (8) TMI 834 - SUPREME COURT OF INDIA] - Decided in favour of assessee.
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2012 (8) TMI 841 - CESTAT NEW DELHI
Waiver of condition of pre-deposit of Excise duty - benefit of Notification No. 30/2004-C.E., dated 9-7-2004 - Manufacturing of tents - Held that:- On perusal of Notification No. 30/2004-C.E., we find that this notification nowhere says that benefit of exemption in relation to articles of textile would be available to the extent of the textile material used in manufacture of such articles. Therefore, prima facie we find merit in the submissions made by the ld. Counsel for the appellant and there is a prima facie case in favour of the appellant accordingly we allow the stay application and recovery pursuant to the impugned order is also stayed till the disposal of the appeal - Stay granted.
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2012 (8) TMI 840 - CESTAT NEW DELHI
Cenvat Credit – Capital Goods – Mines if captive mines so as to constitute one integrated unit with concerned cement factory, Cenvat/Modvat credit available - Held that:- There is no dispute about the fact that Maihar Cement as also Maihar Cement Unit No. 2 are two units of the same parent company, i.e., M/s. Century Textile & Industries Ltd. and do not have the status of independent legal persons. It is also clarified by the ld. Advocate that though accounting of the two units is separate but a common balance sheet is being prepared. As such the mines which were allotted to Maihar Cement at the time of its incorporation and subsequently allowed to be used by the second entity, i.e., Maihar Cement Unit No. 2 has to be treated as captive mines for both the units - as the mines in question are not supplying to factory of other assessees - Following decision of the case of Madras Cement [2010 (7) TMI 179 - SUPREME COURT] - Decided in favour of assessee.
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