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Central Excise - Case Laws
Showing 61 to 80 of 546 Records
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2018 (2) TMI 1561 - CESTAT ALLAHABAD
Clandestine manufacture and removal - plastic disposable glasses - it was revealed that the electricity consumption in the appellant s factory was dis-proportionate to the production of the goods recorded in books - Held that: - the department has filed the appeal only on the ground of excess electricity consumption - this issue is no more res-integra. By now it is the settled law that excise duty cannot be demanded on the basis of excess electricity consumption.
The decision of Hon’ble Allahabad High Court in the case of R.A. Castings [2010 (9) TMI 669 - ALLAHABAD HIGH COURT], relied upon where in Hon’ble High Court has held- Mere electricity consumption cannot be the only basis for determining duty liability.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1560 - CESTAT NEW DELHI
100% EOU - Refund of unutilized CENVAT credit - Rule 5 of the CCR 2004 - denial for the reason that the claims have been filed beyond the period of one year prescribed in Section 11B of the CEA 1944 - Held that: - Even though the notification has made Section 11B applicable, the refund in terms of Rule 5 is different from a claim for rebate on duty paid on excisable goods exported out of India - Refund under Rule 5 is for refund of Cenvat credit accumulated due to export of goods under bond. This refund depends not only upon the accumulated Cenvat credit due to exports, but also the inability of the manufacturer to use it for payment of duty of domestic clearances.
It has been held by the Honorable High Court of Karnataka in the case of mPortal India Wireless Solutions P. Ltd. vs. CST, Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT] that the limitations under Section 11B does not apply for refund of accumulation of Cenvat credit.
The appellants will be eligible for refund as claimed by them, if otherwise eligible without being hit by the limitations under Section 11B - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1559 - CESTAT NEW DELHI
Manufacture - business and trading of perforated sheets and wire netting - Department came to the conclusion that the activity of perforation of flat rolled steel sheets procured from the open market would amount to manufacture in terms of Section 2(f) of the CEA 1944 - Held that: - the Hon’ble Allahabad High Court in the case of Agra Metal Perforators vs. Commissioner, Sales Tax [1980 (7) TMI 242 - ALLAHABAD HIGH COURT] has expressed the clear opinion that after perforation, the iron sheet emerges as a different commercial commodity - the activity of perforation of flat rolled steel sheets does amount to manufacture.
Extended period of limitation - Held that: - there can be no justification for invoking the extended period of limitation under Section 4A for demand of such duty - demand restricted to normal period.
Appeal allowed in part.
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2018 (2) TMI 1558 - MADHYA PRADESH HIGH COURT
CENVAT credit - denied mainly on the basis of certain irregularities alleged with reference to transportation and non-existence of evidence for transportation of duty paid inputs to the premises of the respondent - Held that: - On due consideration of the material evidence which has come on record the Tribunal came to the conclusion that no case is made out to reverse the findings recorded by the Commissioner and upheld the order and dismissed the appeal - appeal dismissed - decided against Revenue.
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2018 (2) TMI 1557 - CESTAT NEW DELHI
Clandestine manufacture and removal - shortage of raw material and finished goods - allegation on the basis of entries made in the records maintained by M/s. Amit Steels - whether charges of clandestine clearance can be upheld based upon the said unverified statement of Shri Narendra Agarwal?
Held that: - Admittedly, his cross examination has not been done and the appellant has not been able to verify the correctness of the same. The name of the company as reflected in the records of M/s. Amit Steels was ‘Shree Balaji Maharaj’ and not the present appellant. It is only the basis of said statement of Shri Narendra Agarwal that the Revenue has proceeded against the appellant.
It is well settled law that allegation of clandestine removal are required to be discharged by the Revenue by producing sufficient, positive and cogent evidence. There is nothing in the present impugned order of the lower authorities indicating any procurement of excess raw material, conversion of the same into final product and clearance of the same without payment of duty. The statement of the transporter recorded by the officers has also not given any details of the clearances made from the assessee factory except to state in a wide manner that he was engaged in transportation of goods. No customers have been identified and there is no evidence of payment of any consideration for such clearances.
Hon’ble Allahabad High Court in the case of CCE vs Meenakshi Castings [2011 (8) TMI 896 - ALLAHABAD HIGH COURT] has held that shortages of finished stock, without evidence of clandestine removal could not lead to inference of evasion of duty, and no penalty is imposable.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1556 - CESTAT NEW DELHI
CENVAT credit - appellant removed various types of scrap generated from the old and used capital goods which were mainly in the nature of damaged parts of the structures of capital goods - Revenue by entertaining a view that as the appellant had availed Cenvat credit on the said capital goods, they were required to pay an amount equal to the duty leviable on the transaction value of such scrap, in terms of the provisions of Rule 3(5A) of the CCR 2004.
Held that: - the entire Rule 3 of CCR 2004 relates to the availment of Cenvat credit on capital goods and the clearance of capital goods subsequently, either as such or in the shape of waste and scrap. As such sub rule 5A would also take its colour from the preceding rules which are relatable to the clearance of capital goods on which credit has been availed - Independent and solo reading of Rule 5A without appreciating the context in which the same is appearing, as has been done by the authorities below, is not in accordance with the principles of interpretation of law. The said sub rule 5A has to be interpreted by applying the principles of noncitur-a-sociis and cannot be picked up independently.
The said sub-rule refers to the clearance of capital goods as waste and scrap and not the parts of the capital goods. In such a scenario, even the strict application of sub rule 5A is not called for.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1555 - CESTAT CHANDIGARH
CENVAT credit - SCN has been issued on the ground that the appellants have availed irregular Cenvat credit on the basis of invoices issued by the first stage dealer M/s Regal Metal and Ferro Alloys, Karampura, Delhi - Held that: - the dealer supplied the different material to the Noticee on which the amount of duty had not been paid. When the duty had not been paid on the said material, the recipient of the goods i.e. Noticee was not allowed to take CENVAT Credit is respect of the goods on which no duty was paid. Thus, it is found that the Noticee had indulged in the wrong availment of CENVAT Credit with the connivance of the dealer for the different goods on which no duty was paid by the manufacturer/supplier.
Extended period of limitation - Held that: - the appellants had clearly suppressed the facts, which came to light only during the investigation - Once there is element of suppression, the Department is well within its powers to issue a show cause notice within 5 years of the relevant date i.e. filing of return of March, 2007 - extended period of limitation has been correctly applied.
Appeal dismissed - decided against Appellant.
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2018 (2) TMI 1554 - CESTAT ALLAHABAD
SSI exemption - assignment of Brand name - whether a Trade Mark/Brand Name can be assigned for a meagre consideration of ₹ 3,000/- cash? - Held that: - Hon’ble Supreme Court of India in the case of Commissioner of Central Excise, Goa Versus Primella Sanitary Products [2005 (4) TMI 70 - SUPREME COURT OF INDIA], has held that the person who has right over Trade Mark, can assign the right of Trade Mark to another person through a deed of assignment for any amount of consideration.
With effect from 01/04/2004 appellants were entitled for benefit of N/N. 08/2003-CE - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1553 - CESTAT NEW DELHI
Excess of raw material and finished goods - confiscation of excess goods - Held that: - out of total quantity of 13680 kg of finished goods it was alleged that 84 kg is found in excess. But how these goods were weighed and worksheet has not been provided to the appellant. In that circumstance, being a negligible quantity of excess found goods cannot be held liable for confiscation.
Revenue sought to confiscate the raw material found excess in the factory premises of the appellant. As per Rule 25 of Central Excise Rules, 2002, the excisable goods are liable for confiscation. Excisable goods are the goods which are manufactured by the appellant. Admittedly, the raw material has not been manufactured by the appellant - confiscation not permitted.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1552 - CESTAT MUMBAI
Penalty u/r 15(2) of CCR 2004 - claim of appellant is that erroneous utilization of credit was inadvertent and without deliberate motive which would foreclose the invoking of extended period of limitation for recovery - Held that: - No evidence has been placed on record by the appellant that the ingredients for invoking of section 11AC were not in existence - the lower authorities had no option but to impose a penalty as a direct consequence of duty - appeal dismissed - decided against appellant.
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2018 (2) TMI 1551 - CESTAT MUMBAI
Penalty u/r 15(2) of the CENVAT Credit Rules 2004 - reduction of penalty to 25% as prescribed in the said rule - Held that: - CENVAT credit wrongly availed along with the interest thereon had been made good before the adjudication proceedings were completed, thus entitling the assessee to reduced penalty in the order of the original authority - There has been a glaring lapse on the part of the original authority in not recording the option of reduced penalty in the adjudication order.
The matter remanded back to the said authority for re-determination of the scope and limit of invoking the penal provisions - Appeal allowed by way of remand.
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2018 (2) TMI 1550 - CESTAT MUMBAI
Refund claim - interest charged on the tax paid prior to the commencement of five year period of limitation - Held that: - Interest is a burden that accrues to ineligible utilisation of amounts that otherwise should have been at disposal of the public exchequer. Undoubtedly, no tax or duty is recoverable for the period that lies beyond the limitation prescribed in the statute and such tax not being recoverable, interest burden thereon should not lie even if the tax by sheer mischance, ended up in the funds of the Government of India - the appellant has closed the doors to his claim of refund of interest on ground of equity - appeal dismissed - decided against appellant.
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2018 (2) TMI 1549 - CESTAT NEW DELHI
Benefit of N/N. 41/11 dated 18.11.2011 - denial on the ground that M/s Jindal Power Ltd. had allotted a space by crossing road for manufacturing the pipes exclusively for M/s Jindal Power Ltd. which was considered as a separate site by Department - Held that: - it appears that the Circular No. 456/22/99-CX dated 18.05.1999 issued by the Department prescribes that separate off road site will also be considered as the same included any premises made available to the manufacturer of the goods falling under Heading No. 68.07 and sub-heading 7308.50 of the Schedule to the Central Excise Tariff Act, 1985 - benefit to be allowed - appeal allowed - decided in favor of assessee-appellant.
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2018 (2) TMI 1507 - CHHATTISGARH HIGH COURT
CENVAT credit - place of removal of the goods - Job work - whether the principal and job worker are independent legal entities - the Revenue appears to have been insisting that the contract documents as between M/s Parle Biscuits Private Limited and the respondent were not made available for adjudication before the departmental authorities or the Tribunal.
Held that:- the fact of the matter remains that levy and sufferance of duty, taxes etc. are fiscal liabilities that add on, on the basis of the different transactions. Therefore, even if M/s Parle Biscuits Private Limited had a standard form contract, the decision rendered by the Tribunal in relation to a party who had or has transactions with that establishment could not have been applied without affirmatively holding that the particular transaction which forms the foundation and the substratum of a subsequent case is selfsame.
The ends of justice require the Tribunal to reconsider the appeal filed before it by the respondent and which has given rise to the order dated 25.08.2015 which is challenged by the Revenue in this appeal - appeal disposed off.
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2018 (2) TMI 1496 - BOMBAY HIGH COURT
Validity of Remand order - issue pending before Larger Bench - taxability service under the taxing entry “Cargo Handling Services“.
Held that: - the issue pending for decision of the Larger Bench is involved in all these appeals and the Tribunal, therefore, could not have remanded the matter back to the Adjudicating Authority, but should have waited for decision of the Larger Bench. The order impugned cannot, therefore, be sustained and it will have to be quashed.
The common order dt.7.4.2017 which is impugned in all these appeals remanding the matter to the Adjucating Authority, passed by the Tribunal is hereby quashed and set aside. The matter is remitted back to the Custom, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai to wait for the decision of the Larger Bench on the issue involved.
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2018 (2) TMI 1495 - CESTAT HYDERABAD
Valuation - sale of petroleum products through dealers - appellant retains the benefit of discount/commission offered to the dealers - whether the appellant needs to be saddled with the additional duty liability in resection of the in petroleum products cleared to company owned and company operated (COCO) outlets during the period April 2002 to September 2004?
Held that: - It is undisputed that when the goods are cleared to outlets operated by the dealers, the assessable value is worked out by deducting the discounts/commission offered to the dealers - the appellant had discharged more excise duty on the clearances to and from COCO outlet, wherein the assessable value is more than the assessable value of the petroleum products cleared to dealers (certified by Chartered Accountants), which implies that the commission which has been extended to dealers has been included in the value.
It can be assumed that the retention of dealers commission as challenged by the Revenue is already taken care of while discharging the duty liability on the higher assessable value on petroleum goods cleared to and from COCO outlets and cannot have effect of the exchequer, it can be seen that net excise duty paid on the net petroleum products cleared to COCO outlets is more than the duty paid on tine clearances to dealers outlets.
Demand upheld - penalty not warranted - appeal allowed in part.
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2018 (2) TMI 1494 - CESTAT HYDERABAD
Classification of goods - Pulihora Paste - Biryani Masala Paste - respondent have classified the said products under Chapters 9 and Chapter 20 respectively of the Central Excise Act, 1985 claiming benefit of "nil" rate of duty - Revenue sought to classify the said products under chapter 21 as mixed condiments and seasoning liable to Central Excise Duty at the applicable rate - Held that: - as regards 'Pulihora Paste', the First Appellate Authority has recorded that The essential character of these "Spices" viz., aromatic, flavouring and seasoning etc., would definitely form part of the resultant product "Pulihora Paste”. It is understood that "Pulihora Paste " is not a ready to eat product but it has to be added with cooked rice, fried in hot edible oil, ground/cashew nuts if desired. Such a functional use of the impugned product is exclusively for rendering "Pulihora" the food preparation with aromatic, flavouring or seasoning properties - classified under chapter 9.
Biryani Masala Paste - Held that: - the judgment of the Tribunal in the case of Narendrakumar & Co., [2008 (6) TMI 621 - CESTAT MUMBAI], squarely covers the issue in favor, where it was held that 'Biryani Masala Paste' would not fall under Chapter 20 it will fall under Chapter 9 and the respondents have claimed same under Chapter 20 the effect being that product 'Biryani Masala Paste' is attracting "nil" rate of duty in both Chapters - decided in favor of assessee.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1493 - CESTAT MUMBAI
CENVAT credit - credit availed without receipt of material - appellant claims that the entire case is based on third party documents - Held that: - the case is booked on the basis of statements of the transporter, first stage dealer and auction bidder. None of these statements have been retracted. All these statements contain admission that the transactions between the appellant and GAA were fictitious and paper transactions and no goods were indeed received under these transactions. In any case the data suggests in these the goods were sold by GAA to the appellant at much below the purchase price. No dealer can do the same on a regular basis i.e. to buy goods at a higher price and sell it cheaper. The appellant has claimed that in respect of goods directly purchased from IIL and UGSL, there is no evidence.
It is apparent that the goods directly purchased by the appellant from IIL and UGSL also moved to Gujarat instead of the appellant’s premises. In these circumstances, there is a clear evidence that the goods shown to be purchased by the appellant have indeed not reached the appellant’s premises and the appellant was a part of the conspiracy to buy invoices in order to avail illegal cenvat credit.
Confiscation - Redemption Fine - Held that: - it is clear that no goods were seized and thus the question of confiscation does not arise - redemption fine also not justified.
Appeal allowed in part.
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2018 (2) TMI 1492 - CESTAT HYDERABAD
Refund of unutilized CENVAT credit - Rule 5 of the CCR 2004 - It is the case of the Revenue that when the CENVAT credit itself is not available, the question of availing the same and claiming refund under Rule 5 does not arise - Held that: - the concurrent findings as recorded by both the lower authorities seems to be in consonance with the law as it is the avowed policy of Govt of India that the exports should not be burdened with taxes, specifically when there is no dispute as to the services rendered and utilized for the exported consignments, non-sanctioning of the refund claims of the service tax paid would add to the value of export consignments.
The sanction of the refund claim by the adjudicating authority in this case, is itself an acceptance of the fact that these documents are eligible for availment of CENVAT credit.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1491 - CESTAT MUMBAI
Refund claim - benefit of N/N. 64/95-CE dated 06/03/95 - unjust enrichment - Held that: - the appellants have relied on the letter of the BPCL by the Assistant Commissioner of Central Excise, Chembur, where he has stated that the appellant should have claimed the refund as the goods were supplied from the IOCL installation. They have also relied on the certificate issued by the BPCL where it has been stated that the transaction payment between BPCL and IOC in respect of said disputed refund have been settled in fully and final - They have also referred on the letter addressed to Assistant Commissioner, Chembur, wherein they have informed that duty amount between the IOC and BPCL in respect of said amount has been settled.
It cannot be said that burden of duty was not passed on to IOCL - appeal allowed - decided in favor of appellant.
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