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- 2018 (12) TMI 494
SSI Exemption - use of Brand Name of other person - the appellant has used the brand name which is also used by the family members of the appellant - Held that:- The same brand name is used by authorized family members for conducting their respective business. Identical set of facts is decided in the case of Laxmi Industries vs. CCE, Rajkot [2013 (11) TMI 1418 - CESTAT AHMEDABAD], where it was held that SSI exemption is eligible to the firm wherein the partners are belonging to a same family. The appellant is using brand name which is also used by other family members cannot be said that the appellant is using the brand name of other persons - benefit of SSI Exemption is to be allowed - appeal allowed - decided in favor of appellant.
- 2018 (12) TMI 478
Classification of goods - rice bucket elevator - rice conveyor - the appellants were classifying these goods under heading No. 8437 as “machinery used in Milling Industry” where the tariff rate is nil - according to the department these goods are classifiable under heading No. 8428, as “other lifting, handling, loading or unloading machinery - whether the impugned goods are classifiable under CETH 8428 or under CETH 8437 of CETA? Held that:- The conveyors and elevators manufactured by the appellants are designed, specifically, for rice mills which has not been disputed by the adjudicating authority in the impugned order, wherein it has been observed by the adjudicating authority that “the goods in question are basically conveyors & elevators, which are used for the transportation of the rice in a rice mill from one stage to the another. T....... + More
- 2018 (11) TMI 1603
CENVAT Credit - place of removal - FOR destination sales - denial on the ground that place of removable is the factory gate and no cenvat credit is available to the assessee beyond the place of removal i.e. factory gate - Held that:- The appellants were owner of the goods till delivery of these goods to the buyers and the goods have been delivered to the buyer at buyer’s place which is not disputed by the Revenue. In that circumstances, place of removal is buyer’s place. As it has been decided that place of removal is buyer’s place, therefore, following the analogies of this Tribunal i.e. in the case of export the port of export has been held as place of removal of goods, it is held that any expenses incurred by the seller of the goods till the buyer place is entitled to avail cenvat credit. The appellants are entitled to avail cenvat cre....... + More
- 2018 (11) TMI 1514
Clandestine removal - reliance placed on the statement of the Director of Appellant - Section 9D of the Central Excise Act, 1944 - penalty - time limitation - Section 35 G of th Central Excise Act, 1944. Did the Tribunal act contrary to the law relying on the statement of the Director of Appellant to decide the appeal against the Appellant herein? - Is the procedure adopted by the Appellate Tribunal contrary to Section 9D of the Central Excise Act, 1944? - Held that:- The adjudicating officer as well as Customs, Excise and Service Tax Appellate Tribunal committed illegality in placing reliance upon the statement of Director Narayan Prasad Tekriwal which was recorded during investigation when his examination before the adjudicating authority in the proceedings instituted upon show cause notice was not recorded nor formation of an opinion t....... + More
- 2018 (11) TMI 1513
CENVAT Credit - waste - electricity sold by the appellant that was being generated from bagasse, a waste product of sugar manufacturing - invocation of Rule 6(3A) of Cenvat Credit Rules 2004 - Held that:- Admittedly electricity, though not found in tangible form, is classifiable under Tariff item no. 27160000 of Central Excise Tariff Act, 1985. But it is a non-excisable goods and the process of generation of electricity though a manufacturing process is dutiable if it is generated from mineral oils, bitumen substance, mineral waxes etc. and electricity generated from bagasse is not covered under Chapter 27 like electricity generated through solar power, hydro power, wind power etc. For post amendment period it can be said that the duty demand made against such sale of surplus electricity manufactured through waste product is not sustainable in law - appeal allowed - decided in favor of appellant.
- 2018 (11) TMI 1019
CENVAT Credit - time limitation - it was alleged that appellant had wrongly availed credit to the tune of ₹ 21,35,493/- beyond the time limit of six months / one year in contravention of Rule 4(1) of CENVAT Credit Rules, 2004 - Held that:- The assessee has to avail credit on the invoices within a period of six months /one year from the date of issue of the invoices / documents - In the present case, it is seen that all the invoices are issued even prior to 11.7.2014. The department has issued the show cause notice on the wrong interpretation of the provisions that credit has been availed by the appellant after 11.7.2014. The amended provision has no retrospective effect. Demand cannot sustain - appeal allowed - decided in favor of appellant.
- 2018 (11) TMI 913
CENVAT Credit - part of electricity used for captive consumption - demand equal to 6% of the sale value of the electricity sold during the period from March 2015 to December 2015 - Held that:- The issue is no more res integra and has been settled by the decision of the Allahabad High Court in the case of Gularia Chini Mills [2013 (7) TMI 159 - ALLAHABAD HIGH COURT], wherein it has been held that there cannot be a demand of 6% of the value of exempted electricity sold outside the factory in terms of Rule 6(3) (i) of CCR simply on the ground that the appellant has failed to maintain separate account on receipt of input or input services used in the manufacture of dutiable goods, namely, Sugar and exempted goods, namely, electricity. The demand of 6% of the value of electricity sold to various companies is not sustainable in law - appeal allowed - decided in favor of appellant.
- 2018 (11) TMI 830
Recovery of erroneous refund - it was alleged that appellants had not the manufactured the goods and issued cenvatable invoices enabling to their buyers to avail inadmissible cenvat credit - the sole allegation against the appellant is based on the investigation conducted by Commissioner of Central Excise, Merrut, and as per the investigation, it is alleged that farmers from whom the inputs were purchased were non-existence. Held that:- The investigation was not conducted at the end of the appellants and whole case has been based on the investigation conducted at Commissioner Central Excise, Merrut-II. Without investigation, it cannot be held that the appellants were not manufacturer of the finished goods during the impugned period. Moreover, the entries of vehicles at the toll barriers also certified that the movements of raw material an....... + More
- 2018 (10) TMI 1468
CENVAT Credit - inputs/capital goods - steel structural items - Rule 2(a) and 2(k) of Cenvat Credit Rules, 2004 - Held that:- The appellant’s case is squarely covered by the Division Bench of this Tribunal in the case of Singhal Enterprises Pvt. Ltd. Vs. CCE, Raipur [2016 (9) TMI 682 - CESTAT NEW DELHI] wherein it has been held that if the steel items such as MS Angles, Channels, TMT Bar etc. are used in fabrication of support structures for various capital goods - credit allowed - appeal allowed - decided in favor of appellant.
- 2018 (10) TMI 1465
Reversal of CENVAT Credit - credit attributable to inputs and input services used in the manufacture of Bagasse and sold outside the factory - Rule 6 of Cenvat Credit Rules 2004 - Held that:- Both the authorities have held that in spite of the Explanation being attached to Rule 6 w.e.f. 01.03.2015 still the appellants are not liable to reverse 6% of the value of Bagasse sold - further, there is no manufacture involved in the process of bagasse which is a waste product - Appeal dismissed - decided against Revenue.
- 2018 (10) TMI 1367
CENVAT Credit - time limit of invoices raised - the invoices, on the basis of which the credit was availed, was older than six months - N/N. 21/2014-CE(NT) dated 11.07.2014 made effective w.e.f. 01.09.2014. CENVAT Credit - capital goods - availment of credit of 50% of the balanced credit required to be availed in the subsequent financial year - Held that:- Even though there is no such amendment in Rule 4 for availing the Cenvat credit of duty paid on the capital goods within a period of six months, the same stands denied by Commissioner (Appeals) even after observing that there is no such requirement of law - there is no justification for denial of credit - credit allowed. Whether the demand is barred by limitation? - Held that:- The entire credit was availed by the appellant by reflecting the same in their Cenvat credit records. As such,....... + More
- 2018 (10) TMI 1153
CENVAT credit - During the course of manufacture of dutiable Sugar & Molasses, “Bagasse” emerges as a waste/by-product, which was being cleared by the Appellant at ‘Nil’ rate of duty - non-maintenance of separate records for the dutiable product and exempted product as required under Rule 6(2) of the CENVAT Credit Rules, 2004, nor followed the procedural under Rule 6(3A) of the CENVAT Credit Rules, 2004 - Circular No. 1027/15/2016-CX dated 25.04.2016. Held that:- The Hon'ble Supreme Court’s decision in the matter of DSCL Sugar Ltd. [2015 (10) TMI 566 - SUPREME COURT] has clearly laid down that bagasse is agricultural waste of sugarcane and the waste and residue of agricultural products, during the process of manufacture of goods cannot be said to be result of any process. There is no manufacturing process involved in Bagasse’s production........ + More
- 2018 (10) TMI 1151
CENVAT Credit - by-product/waste - bagasse & press-mud arising out of manufacture of V P Sugar & molasses - Rule 6 (3) of CCR - whether the impugned waste invites the payment of excise duty in accordance of Rule 6 (3) of CCR, 2004? Held that:- The Hon’ble Apex Court in the case of Union of India vs. DSCL Sugar Ltd [2015 (10) TMI 566 - SUPREME COURT] has held that products like bagasse and press-mud do not qualify the definition of Section 2F of CEA and as such are not being a manufacture. These are only an agricultural waste and residue which itself is not the result of any process and in the absence of manufacture, there cannot be any excise duty. The Hon’ble Apex Court further clarified that since it is not a manufacture, Rule 6 of the Cenvat Credit Rules shall have no application. This rule was amended w.e.f. 01.03.2015 - however, sinc....... + More
- 2018 (10) TMI 966
CENVAT Credit - common input/capital goods/input services used dutiable product and exempted product - “Bagasse” emerges as a waste/by-product, which was being cleared by the Appellant at ‘Nil’ rate of duty in the course of manufacture of dutiable Sugar & Molasses - recovery u/r 14 of CENVAT Credit Rules, 2004 read with Section 11A(1) of the Central Excise Act, 1944 - penalty u/r 15(1) of CENVAT Credit Rules, 2004. Held that:- The Hon'ble Supreme Court decision in the matter of DSCL Sugar Ltd. [2015 (10) TMI 566 - SUPREME COURT] has clearly laid down that bagasse is agricultural waste of sugarcane and waste and residue of agricultural products, during the process of manufacture of goods cannot be said to be result of any process. There is no manufacturing process involved in Bagasse’s production. “Bagasse” is not ‘goods’ but merely a waste or by-product, therefore Rule 6 of CENVAT Credit Rules, 2004 is not applicable in the present case. Appeal allowed - decided in favor of appellant.
- 2018 (10) TMI 877
Demand of duty refunded in cash - area based exemption under N/N. 56/2002-CE dated 14.11.2002 - adjudicating authority has confirmed demand on the grounds that the farmers are non existence ensuring non supply of raw material by commission agents to J&K based units and absence of evidence of power by the appellant and no manufacture and sale taking place - Held that:- The check post movement of trucks which were carrying inputs as well as finished goods were found entered - also, the appellant has produced the evidence of the entry of all the transport vehicles i.e. trucks which have entered in the state of Punjab and have left the state of Punjab, as the same has been certified by the Punjab Sales Tax Department having entries of entry and exit all the vehicles, therefore, it cannot be said that the raw material/finished goods have never....... + More
- 2018 (10) TMI 530
CENVAT Credit - input services - place of removal - Outward GTA service - Extended period of Limitation - Held that:- Supreme Court in the case of Ultra tech Cement Ltd [2018 (2) TMI 117 - SUPREME COURT OF INDI] on the issue of ‘Place of Removal’ as well as on the eligibility of the Cenvat credit on outward GTA prescribed some guide lines for field formation for deciding the case of cenvat credit on outward GTA. Since the issue involved is mixed question of law and facts, the facts first to be verified that whether the GTA service in each case is up to the place of removal or beyond place of removal. Therefore, without verifying these facts any judgment of Supreme Court cannot be applied in straight away - matter needs to be remitted back to the adjudicating authority who shall decide the matter fresh - appeal allowed by way of remand.
- 2018 (10) TMI 10
CENVAT credit - Clean Energy Cess paid on imported / indigenous coal, Lignite - Demand of Interest and penalty - Held that:- Clean Energy Cess contains the reference to the provision of Central Excise Act, 1944 and even if the CCRs, 2004 do not specifically mention in Section 3 but still the appellants are entitled to CENVAT credit because the Cess has been paid as duty of excise and the same has been levied under Section 83 of the Finance Act, 2010. Sugar Cess levied under Sugar Cess Act, 1982 is similar to Clean Energy Cess levied under Section 83 of the Finance Act, 2010 and therefore the ratio laid down by the Hon'ble High Court of Karnataka in the case of Sri Renuka Sugars Ltd. [2014 (1) TMI 1469 - KARNATAKA HIGH COURT] is squarely applicable in the facts and circumstances of the case, because the Clean Energy Cess has been levied an....... + More
- 2018 (9) TMI 1582
Violation / breach of Rule 8(3A) of the Central Excise Rules, 2002 - vires of Rule 8(3A) of the Central Excise Rules, 2002 - Whether the Tribunal committed substantial error of law by allowing Respondent's appeal without examining the case on merit in spite of charge made out in the notice emphasizing contravention of the provisions of Rule 8(3A) of Central Excise Rules, 2002? - Held that:- Once the provision has been declared ultra vires by any High Court then one has to proceed on the basis that the provision which has been declared as unconstitutional is non-existant. Therefore, unless a contrary decision is given by any other competent Court, the Tribunal in the state has to proceed with the decision of the other High Court as it is the law of land and binding upon it. When a provision has been declared unconstitutional by a Court....... + More
- 2018 (9) TMI 1479
CENVAT credit - inputs/capital goods - HD Steel, Steel Cogs/TIS Cogs, TMT Rod & Bar, MS Plate, MS Pipes, MS nut, Telescopic Steel Props, Steel Sleepers, etc. - Held that:- The impugned goods have been duly used in or in relation to the manufacture/production of HD Steel, Steel Cogs/TIS Cogs, TMT Rod & Bar, MS Plate, MS Pipes, MS nut, Telescopic Steel Props, Steel Sleepers, etc., without which it would not be possible to undertake mining activities. Since the disputed goods are not falling under the excluded category of goods specified in the definition of inputs, Cenvat credit can be extended to those goods as per the broad definition of “inputs” contained in Rule 2(k) of the Cenvat Credit Rules, 2004 - credit allowed. CENVAT Credit - duty paying documents - credit denied on the documents issued by appellant’s other unit, namely, M/s. SEC....... + More
- 2018 (9) TMI 982
CENVAT Credit - Common inputs used in dutiable as well as exempted goods - non-maintenance of separate record - Rule 6 of the Cenvat credit Rules, 2004 - Held that:- The appellant has reversed the proportionate credit as per Rules 6 (3A) (ii) along with interest and informed the Department vide letter dated 25.02.2012 and 24.05.2012, further it is found that once the appellant has reverse the proportionate Cenvat credit availed on common input services attributable to exempted goods then it is not required to pay 10% or 5% as the case may be as demanded by the Revenue. The appellant’s case is squarely covered by the decision of Structural Engineers Vs. C.C.E Bangalore-I [2016 (8) TMI 387 - CESTAT BANGALORE], where it was held that In view of subsequent compliance with the provisions of Rule 6(3) (ii) of CCR, with the payment of credit req....... + More