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Central Excise - Case Laws
Showing 81 to 100 of 546 Records
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2018 (2) TMI 1490 - CESTAT MUMBAI
Valuation - includibility - quantity discount at various rates - It was alleged that appellant has not passed the quantity discount claimed by them completely to the buyers - Held that: - ample opportunities were given and the appellant failed to substantiate their claim - It is seen that in the earlier proceedings before the Tribunal they had not raised this issue and they have admitted their liability and therefore, it is not open to them to raise this issue in this proceeding.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 1489 - CESTAT MUMBAI
Valuation - deduction of freight and insurance on average basis - place of removal - Held that: - at the material time depot was not included in the definition of place of removal, consequently, duty was required to be paid on the value at the factory gate. In these circumstances, cost of transportation and transit insurance cannot be included in the assessable value as a matter of principle - reliance placed in the case of UNION OF INDIA & ORS. ETC., ETC. Versus BOMBAY TYRE INTERNATIONAL LTD. ETC., ETC. [1983 (10) TMI 51 - SUPREME COURT OF INDIA] - decided in favor of appellant.
Demand on the ground of change in rate of duty - Held that: - on this issue, the impugned order does not give any findings - impugned order is set aside in respect of second issue and the matter is remanded to the Commissioner (Appeals) to give findings - matter on remand.
Appeal allowed in part and part matter on remand.
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2018 (2) TMI 1488 - CESTAT MUMBAI
Refund claim - excise duty paid in excess - price variation clause - case of appellant is that their claim was not examined properly - Held that: - There is no doubt that the appellant was to receive, as consideration, a lesser amount than that on which the duties were initially computed and paid and the contract price had not been registered with the jurisdictional authorities to acquire sanctity from which no deviations could be permitted; that was but a provision in the commercial agreement which is not germane to the general provisions of valuation, viz., the transaction value - On a perusal of the orders of the lower authorities, it is seen that no attempt has been made to ascertain the veracity of the claim of the appellant that a duty higher than that mandated by law had been paid. Such an ascertainment would require an exercise akin to assessment. The records do not bespeak of such.
An application for refund is not to be discarded by reference to any one infirmity but is required to be examined in its entirety for determination if the duties not sanctioned by law has been collected and to remedy any breach thereof - the refund claim restored to the original authority to examine all aspects after giving an opportunity to the appellant - appeal restored.
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2018 (2) TMI 1487 - CESTAT MUMBAI
CENVAT credit - common input services for all divisions - whether the appellant are entitled for the CENVAT credit on common input services namely gardening, canteen, premises maintenance, housekeeping, fire protection etc. for all divisions situated in the premises at Kanjur Marg? - Held that: - except outdoor catering services, all other services are used in or in relation to the running of the factory which is engaged for production of final product, therefore services received are admissible for inputs credit - there is no dispute, it is common amenities such as gardening, canteen, premises maintenance, housekeeping, fire protection etc. which are commonly used for all the divisions located in the premises of the appellant’s factory. Therefore it is evident that the entire service was not used by the appellant themselves but part of the services was attributed to other divisions.
Even as per Rule 7 of CENVAT Credit Rule, if the common services are related to various units of one company the same should be distributed as per turnover of individual unit. On this analogy also though the appellant are entitled for the CENVAT credit but not for the whole of the credit but only to the extent it is attributed to the turnover of the appellant’s unit - it needs to be re-quantified in accordance with the turnover of the appellant’s unit vis-a-vis total turnover of all the units - matter on remand.
Outdoor catering services - Held that: - the outdoor catering service is provided for the personal consumption of the employees. As per the exclusion clause in the definition of ‘input service’ the outdoor catering service used for personal consumption of the employee is clearly excluded therefore the appellant is not entitled for CENVAT credit in respect of outdoor catering services - credit not allowed.
Partly decided against appellant and part matter on remand.
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2018 (2) TMI 1486 - CESTAT MUMBAI
CENVAT credit - premium paid on insurance policies - Held that: - The decision of the Hon’ble High Court in Commissioner of Central Excise & Service Tax, LTU, Bangalore v. Micro Labs Ltd 2011 (6) TMI 115 - KARNATAKA HIGH COURTdid examine the eligibility of tax paid the premium for availment of credit and held that merely because these services are not expressly mentioned in the definition of input service it cannot be said that they do not constitute input service and the assessees are not entitled to the benefit of CENVAT credit - appellant is entitled to credit of tax paid on insurance services to the extent that it pertains to its employees - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1485 - CESTAT MUMBAI
CENVAT credit - input services - catering service - quality audit - garden maintenance - testing of samples - Held that: - The credit in dispute on testing services is a mere ₹ 143 and that on catering services is a meagre ₹ 384.
Quality audit - Held that: - Quality audit is not intended to protect the intellectual property of the concentrate used in manufacture of beverages but has a direct bearing on the product served to the customer; it is, therefore, an inextricable part of the manufacturing process - credit allowed.
Garden maintenance - Held that: - The decision of the Hon’ble High Court of Karnataka in Commissioner of Central Excise, Bangalore - II v. Millipore India Pvt Ltd [2011 (4) TMI 1122 - KARNATAKA HIGH COURT] would sustain that claim to credit of tax paid on use of garden maintenance service - credit allowed.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1484 - CESTAT MUMBAI
SEZ unit - Refund of service tax paid - denial on the ground that the amount claimed had been availed as CENVAT credit by the appellant and that this availment had been suppressed in the documents accompanying the claim - Held that: - It is seen from the records that appellant had filed the claims between May 2014 and November 2014. The appellant had reversed the CENVAT credit so claimed only October 2014 - the decision of the Hon’ble Supreme Court in Comnr. of Central Excise & Customs Versus M/s. Precot Meridian Ltd. [2015 (11) TMI 323 - SUPREME COURT], where it was held that even if the MODVAT credit was utilised but, thereafter, refunded, it would amount to not utilising the said MODVAT credit.
Appellant entitled to the refund subject to verification of reversal - appeal allowed by way of remand.
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2018 (2) TMI 1455 - BOMBAY HIGH COURT
Benefit of exemption - actual user condition - Whether benefit of N/N. 6/2002-CE as amended or N/N. 6/2006-CE read with N/N. 21/2002-Cus dated 1st March, 2002 which was available to “naphtha” used in the manufacture of “fertilizer”, is available to the respondent for that quantity of “naphtha” which was manufactured and cleared by it to M/s. Rashtriya Chemicals and Fertilizers Ltd availing the benefits under the said notifications, but admittedly, not used by RCF in the manufacture of “fertilizers”?
Whether the CESTAT was correct in holding that Central Excise Duty can be demanded from a person other than manufacturer of the excisable goods in a situation where the goods are locally procured under N/N. 6/2002-CE or 6/2006-CE, the liability to pay the duty would be that of the user manufacturer who in the present case is RCF?
Held that: - It is common ground that the naptha was supplied by the respondent-assessee by resort to the international competitive bidding process. The naptha brought for this supply was claimed to be exempted by the assessee. The tribunal noted that naphtha is exempt from payment of excise duty if supplied against international competitive bidding and used in the manufacture of fertilizers - The tribunal came to the conclusion that the notifications read together would reveal that in the present case, the naphtha supplied against competitive bidding was not entirely consumed for the manufacture of fertilizers by the RCF. In the present case, for such failure, the manufacturer, where the goods were intended to be used is required to pay differential duty. If the user and manufacturer are one and the same, there is no difficulty. The tribunal gave an illustration, as can be found completely consistent with the case at hand. If the importer of the goods is 'A' but the goods are to be used in the factory of 'B', then, in such situation also, though the goods may be imported by 'A' but the liability to pay the differential duty in the event of failure to use the goods is on 'B'.
The question is not of local procurement and the tribunal found, therefore, that M/s. HPCL, at the time of clearance, has satisfied both the pre-conditions, namely, the goods were supplied against international competitive bidding and for the manufacture of fertilizers. The actual use of the goods is post clearance condition and which is required to be fulfilled by the buyer/user, which is the RCF. Hence, the assessee cannot be expected to ensure the precise use of the goods by M/s. RCF.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 1453 - CESTAT HYDERABAD
Refund claim - price variation clause - Since the discharge of Central Excise Duty is based on the price variation clause the appellant sought permission for provisional assessment for payment of Central Excise Duty Said provision assessments were finalized and refund arose - rejection of refund on the ground of unjust enrichment - Held that: - there is no dispute as to the facts the first appellate authorities order in all these appeals in Order-ln-Appeal 30/06/2008 held in favour of appellant on merits has not been challenged by the revenue before higher Judical fora. Hence, on merits in all these appeals appellant entitled to refund of the excess duty paid due the deductions towards non achievement of GPF and we hold so.
The ratio of the decision of the Hon'ble High Court Gujarat-Accra Pac (I) Pvt Ltd [2013 (2) TMI 795 - GUJARAT HIGH COURT] would apply, wherein it was held that once an Issue is decided and against which no further proceedings are carried then such decision IS bending of all parties.
Unjust enrichment - Held that: - Singareni Collieries Company Ltd (SCCL) is a Government of India undertaking - from the certificate submitted to lower authorities it is indicated that appellant had not passed on the incident of Central Excise Duty to the recipient of the goods hence it has to be held that the appellant has passed hurdle of unjust enrichment in the cases in hand and should given the refund of amount paid excess.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1442 - GUJARAT HIGH COURT
Rate of duty - effective date of correction through corrigendum notification - Corrigenda issued by the Government of India dated 15th January 1997 and 21st September 2000 - original amendments were made through Budget in September 1996 by the Parliament, which eventually became the Finance Act of 1996.
Held that: - We do not have for a moment any doubt that all along what was presented before the Parliament, after the amendment in the Finance Bill and what was accepted by the Parliament was the prescription of basic rate of duty at 12% for unprocessed as well as processed fabric. The affidavits filed by the responsible officers of the Union of India need not be doubted. We have therefore no reason to believe that the budgetary proposals did not carry such amendment or that the Parliament did not accept such proposals; as is stated before us - Inevitable conclusion therefore one would reach is that the Finance Act, 1996 revised the rate of basic duty for unprocessed and processed fabric @ 12% ad valorem. Correspondingly, the structure of additional Nil rate of duty for unprocessed fabric was maintained and additional duty @ 8% for the processed fabric was prescribed.
The contention that corrigendum dated 21st September 2000 must relate back to the original publication of rate of duty and that in any case the Parliament has power to make law with retrospective effect cannot be accepted. Firstly, the corrigendum is in the nature of a publication required since the original publication carried a wrong figure. The corrigendum is not a piece of legislation. The question of retrospective effect of such correction cannot be equated with exercise of the power of the Parliament to make a law with retrospective effect.
In case of Union of India v. Ganesh Das Bhojraj [2000 (2) TMI 89 - SUPREME Court], it was observed that the exemption notification would take effect as soon as it is published in the Government Gazette. Publication in the Government Gazette is recognized as an established practice of bringing a rule or subordinate legislation to the notice of the persons concerned. It was observed that thereafter individual notices to members of public would not be necessary and the interested persons can acquaint himself with the contents of the notification published in the Gazette.
Petition allowed.
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2018 (2) TMI 1441 - BOMBAY HIGH COURT
Whether Hon'ble Tribunal i.e. Respondent no.2 has erred by not appreciating legal position that in case of unreported compliance of stay order before Hon'ble Tribunal appeal merits restoration of appeal?
Held that: - we are unable to understand the approach of the Tribunal. Eventually, Tribunals are set up to render substantial justice and not to defeat just and bonafide claims by hyper technical approach. Somehow or the other, we find that a file clearance drive which the Revenue adopts on its administrative side has taken over the Tribunal members. The Tribunals are discharging quasi judicial functions. In fact, it is more a judicial power and when it has to adjudicate the Appeals on merits and in accordance with law, it is suppose to give parties an opportunity to argue their cases on merits particularly once the Tribunal is satisfied that the parties i.e. the assessee has acted bonafide. There is no gross negligence and utter callousness in this case. True, it is that there was a lapse and which was of reporting compliance to the Tribunal.
The Tribunal should have noted that not only the lapse is cured, but the amounts are deposited after the warrant of attachment was levied. Thus, even recovery by coercive means once resorted, resulted in substantial part of the revenue being secured. After this, there was no occasion for the Tribunal to adopt an approach which defeats justice.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1440 - CESTAT NEW DELHI
SSI Exemption - crossing of threshold limit - suppression of value - Department has received the information that the assessee-Appellants have already exhausted the SSI limit of ₹ 1 crore, but are preparing the bills/vouchers by showing the lower value by 25 to 50% - Held that: - the sole case of the Department is based on the information generated from the computer - The assessee-Appellants have not maintained any register for the raw material and the finished stock. Hence, the actual production cannot be verified. It proves that they have kept the production within the prescribed limit of SSI Exemption by showing the lower value on the vouchers or sometimes selling the goods without any vouchers - demand upheld - appeal dismissed - decided against appellant.
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2018 (2) TMI 1439 - CESTAT CHENNAI
Classification of goods - textile fabric combined with PU foam as textile fabric laminated with polyurethane foam - whether classified under CETH 5903 of CETA or under Chapter 39? - benefit of N/N. 29/2004-CE dated 9.7.2004 as amended by N/N. 10/2005-CE dated 1.3.2005? - Held that: - It is stated in the Circular dated 13.12.1995 that the process of manufacturing PVC leather cloth involves coating of a paste of plastic material (PVC) on one side of the base fabric. In this case, the plastic is not combined with the textile but is coated on textile fabric to form final product. Textile fabrics does not act as reinforcing material. Such fabrics are used for upholstery and can take sharp bends without cracking. After analyzing the applicability of Chapter Note 2(a) of Chapter 59, Section Note 1(d) of Section XI as well as Chapter Note 2(k) under Chapter 29 together with the HSN Notes, the Board has concluded that the product PVC leather cloth also known as rexine cloth has to be correctly classified under Chapter 59.03 of CETA, 1985.
The SCN alleges that the respondent clears PU foam sheets and polyester granules (for laminating the PU foam) to their job workers who convert the granules into yarn and knit the yarn into fabrics and use it to laminate the PU form sheets. In fact, the respondent clears PU foam to their job workers who cut the same into the required size and laminate the PU foam on textile fabric. The respondent does not send any polyester granules to the job worker. After lamination the product cleared from the job worker is called as textile fabric laminated with PU foam and not PU material laminated for textile as contended in the SCN.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1438 - CESTAT CHENNAI
Extended period of limitation - It is appellant's case that department was put to knowledge about manufacture on job work basis - Held that: - apart from the raw materials supplied by M/s CPSML which were delivered through challans and accounted, the appellant was receiving raw materials from other sources like M/s Parthiv Spinning Mills without invoices which was unaccounted. Investigation revealed that appellant procured raw material in different names and this unaccounted raw material was used to clear finished product clandestinely without payment on duty.
The mahazar establishes that there were discrepancies in the registers maintained for stock of raw material, stock of finished product. Physical verification of stock showed shortage of both.
The appellant is guilty of suppression of facts with intent to evade payment of duty. The ingredients of the proviso to section 11AC is strongly established - the extended period has been rightly invoked - appeal dismissed - decided against appellant.
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2018 (2) TMI 1437 - CESTAT CHENNAI
Clandestine removal - MS Ingots, CTD/TMT Bars and mis-rolls - Held that: - Department officers visited the premises in December. The investigation continued for another two years as seen from statement of Sh.M.Seetharama Reddy which was recorded on 15.12.2005 and again on 25.4.2006. Still, the department has not made any investigation as to whether respondent had procured excess unaccounted inputs, or details of suppliers who have supplied unaccounted inputs/raw material for alleged unaccounted manufacture of finished products.
Apart from private records and statements there is no material to establish clandestine clearance of goods. Clandestine clearance being a very serious charge, the department is duty bound to establish the same with reliable evidence.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1436 - CESTAT CHENNAI
Clandestine removal - case of Revenue is that the respondents have maintained two sets of invoices in order to remove finished products without payment of duty - Held that: - It is brought out from records that other than four numbers of invoices, no other double set of invoices were unearthed during the investigation. The statement of the buyers whose name is mentioned in the double set of invoices were recorded by the department. All of them have stated that they have no idea about such invoices and that they have received only duty paid goods. The department has not ventured to verify and find out whether the quantity covered in the alleged second set of invoices were actually raised in the factory of the recipients - the department has not conducted any investigation for unaccounted raw material for the huge clandestine clearance alleged against the respondent. So also there is no evidence for flow back of funds.
The entire case is built on mere suspicions of officers without any documentary evidence.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1435 - CESTAT HYDERABAD
Valuation - Appellant contested the show cause notice on the ground that the entire stock at the warehousing terminal at Ghatkesar Secunderabad was cleared from the terminal on payment of duty, while Revenue's case they should have discharged the duty liability i.e. 06.09.2004, on price prevailing on that day - Held that: - identical issue decided in respondent own case HINDUSTAN PETROLEUM CORPORATION LTD. Versus CCE., VISAKHAPATNAM [2010 (4) TMI 951 - CESTAT BANGALORE], where it was held that If the Revenue authorities of all over India are accepting the fact that the transaction value of the petroleum goods consequent to withdrawal of the warehousing facility has to be on the transaction value on the date of clearance, we do not find any reason for non-application of the said procedure in this case.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1434 - CESTAT NEW DELHI
Clandestine removal - Zinc - shortage of raw material - Held that: - zinc was lying in the tank which is raw material - In the impugned order, there is no reference regarding the zinc which was lying in the tank. During the course of argument, it is submitted that six months before the computation of the raw material was also made where the element of the zinc was considered. When it is so, then we set aside the impugned order in this regard and remand the matter to the original authority to decide the shortage of the raw material - matter on remand.
Valuation - includibility - value of bought out items - Held that: - identical issue has come up before the Tribunal in the case of Bharat Sanchar Nigam Ltd. Vs. CCE, Raipur [2018 (2) TMI 1384 - CESTAT NEW DELHI], where it was held that the towers were used by the assessee-appellants for only transmission of the signals without carrying out any further business activity, amount not includible - decided in favor of appellant.
Decided partly in favor of appellant and part matter on remand.
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2018 (2) TMI 1433 - CESTAT CHENNAI
CENVAT credit - input services credit in respect of premises, which is being leased out - The department was of the view that appellant has not used the input services, on which credit was availed, in or in relation to the manufacture of their finished products - Held that: - The input credit whether availed on capital goods, inputs or input services is accounted in a common pool of credit. While utilising credit it is not necessary that there should be one to one correlation - the Cenvat Credit Rules does not prohibit the credit availed on capital goods to be utilized to discharge duty on finished products or for payment of service tax. So also the credit availed on payment of service tax can be utilized for discharge of central excise duty.
The Tribunal in the case of Nvaratna S.G. Highway Prop. Pvt Ltd. [2012 (7) TMI 316 - CESTAT, AHMEDABAD] held that without construction of mall / building the renting of immovable property services cannot be provided and therefore construction service is an eligible service for credit for providing output service of Renting of immovable property.
The disallowance of input service credit is unjustified - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1404 - CALCUTTA HIGH COURT
Order under Section 14AA of the Central Excise Act, 1944 - case of the petitioner/assessee company is that the order does not provide reasons enough to support the formation of belief by the respondent No.1 that the utilisation/availing of the credit duty by the petitioner/assessee company falls under any of the conditions stipulated by Section 14AA(1)(a) and (b) thereof - Held that: - identical issue decided in the case of [1976 (3) TMI 1 - SUPREME Court], where it was held that majority of the learned judges in the High Court, in out opinion, were not in error in holding that the said material could not have led to the formation of the belief that the income of the assessee-respondent had escaped assessment because of his failure or omission to disclose fully and truly all material facts.
This Court finds that the respondent No.1 has applied his mind to the record, heard and considered the facts presented in defence of the petitioner/assessee - petition dismissed.
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