- 2018 (7) TMI 1279
CENVAT Credit - duty paying documents - Supplementary Invoices - Rule 9 (1) (b) of the Cenvat Credit Rules 2004 - Held that:- In an identical set of facts in the case of Birla Corporation Ltd. V/s Commissioner [2018 (7) TMI 1264 - CESTAT NEW DELHI], Tribunal allowed the Cenvat Credit holding that there cannot be suppression of fact when the issue of liability of payment of Excise duty at the end of the coal companies was a debatable issue which is pending adjudication in the Apex Court - appeal allowed.
- 2018 (7) TMI 1264
CENVAT Credit - duty paying documents - supplementary invoices - Held that:- There is no element of fraud and suppression on the part of the appellant. The issue herein is recurring in nature - the appellant is entitled to take CENVAT credit on the supplementary invoices in question - Appeal allowed - decided in favor of appellant.
- 2018 (7) TMI 994
Excisability - SSI Exemption - Appellants, engaged in the business of running Hotels throughout the country, also operate a small bakery within the premises of the Hotel at Bangalore wherein Pastries, Cakes, Biscuits, Cookies, Chocolates and Confectionary are made for consumption in the Hotel and also for sale from the sales counter of the pastry shop, located in the Hotel premises itself - whether the Bakery items manufactured and sold by the appellants are excisable? - whether the value of exempted goods can be taken into account for the purposes of arriving at the exemption claimed vide N/N. 8/2003-CE? - Extended period of Limitation. Held that:- It appears that the appellants are attempting to create a confusion between ‘nil’ rate of duty and excisability of goods. There is no ambiguity in the wordings of the Notification - the depart....... + More
- 2018 (7) TMI 850
Transitional provisions - CENVAT Credit - requirement of reversal of credit while opting exemption - Department took the view that even this cenvat credit balance amount should lapse in view of the provisions of Rule 11 (3) (ii) of Cenvat Credit Rules, 2004 Held that:- Sub-rule (3) (i) ibid will apply when the assessee opts for an exemption from the whole of duty of excise leviable under a notification issued under Section 5A of the Central Excise Act, 1944. Sub-rule (3) (ii) ibid will be attracted only to those assessees who are confronted with absolute exemption in respect of final product/s manufactured by them, in which case the entire balance of cenvat credit lying in his account shall lapse and the same shall not be allowed to be utilized for payment of duty for home consumption or for export - in sub rule 3 (i) ibid, the assessee h....... + More
- 2018 (7) TMI 688
CENVAT Credit - input services - rent-a-cab service - the ground on which the credit has been disallowed is that the said services are primarily used for personal use or consumption of the employees - Held that:- If the motor vehicle is designed to carry passengers and is registered in the name of the service provider, for being used for providing output service of transportation of passengers or for renting of vehicle, then the said motor vehicle will fall within the definition of ‘capital goods’. So if the motor vehicle is registered in the name of the service provider and used to render the services of rent-a-cab service, the said services would qualify as input services. In the present case, the department has not alleged that the motor vehicles are not registered in the name of the service provider. In fact, there is no allegation th....... + More
- 2018 (7) TMI 611
CENVAT Credit - input services - Director Sitting Fees - premium for product liability insurance - Revenue claims that the insurance is post manufacturing activity - Held that:- The risk covers the defects with the product. In such cases, when there are defects to the product, the appellant / manufacturer will have to recall the product and thereby incur huge financial loss. The insurance is for covering the financial loss of the appellant / manufacturer and it cannot be considered as a post-manufacturing activity - This cannot be said to be a post-manufacturing activity for the reason that such insurance policies addresses the financial risks of the manufacturer - denial of credit unjustified. Director Sitting Fees - Held that:- It is the duty of the director to attend the meetings and therefore the service tax paid on such fees is eligible for credit - credit allowed. Appeal allowed - decided in favor of appellant.
- 2018 (7) TMI 522
CENVAT Credit - credit on retained amount - from each of the progressive bills raised by the contractors during the execution of the contract, the respondents used to deduct certain percentage as retention amount and made the balance payment to the contractors - whether CENVAT Credit is allowed on this retained amount - Rule 4(7) of CCR 2004 - Circular No. 122/3/2010-ST dated 30.4.2010 - Held that:- There is no dispute regarding the fact that though the respondent retained a part of the value of services, however, no part of the service tax reflected in the invoices was ever retained by the Respondent. Respondent has paid the service tax on entire invoice value - The credit of full service tax paid by the service provider in respect of services provided would be available even if amount payable to the service provider has been withheld so....... + More
- 2018 (7) TMI 521
Clandestine removal - raw-material as well as of the finished goods - tangible evidences not present - Held that:- There is a plethora of judgments to hold that to stand upon the charges as that of clandestine removal, there has to be some clinching evidence and the demand cannot be confirmed based on presumptions and assumptions. In the present case the allegations against the appellants have been levelled on the basis of some documents recovered from the premises of M/s. PIL. There is nothing on record which may show any effort of the Department that the recovered documents ever got tallied from the documents available with the appellants - Apparently or admittedly, there is no raid conducted in the premises of the appellant nor any documents got recovered from their premises. It is also evident on record that appellants were not given ....... + More
- 2018 (6) TMI 1484
Clandestine removal - demand based on third party evidences - the entire case of the Revenue is based upon the records recovered from M/s Monu Steels and based upon the statement of the representative of M/s Monu Steels as also the appellant’s Director - Held that:- The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established - the findings of clandestine removal cannot be upheld based upon the third party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods. Demand set aside - appeal allowed - decided in favor of appellant.
- 2018 (6) TMI 1483
Clandestine removal - demand based on consumption of electricity - absence of corroborative evidences - Held that:- There is no evidence produced by the Revenue to show that the appellants were indulging in clandestine activities. No efforts have been made by the Revenue to show that the entries in the records of M/s. Manu Steels related to actual transportation and supply of raw material to the appellant - demand not sustainable - appeal allowed - decided in favor of appellant.
- 2018 (6) TMI 1142
Manufacture - conversion of tissue papers, C-fold tissue, M-fold tissue, paper napkin/serviette of different sizes, toilet roll, kitchen roll, JRT roll and HRT roll etc. from jumbo rolls of paper - whether the activity carried out by the appellant in their factory amounts to manufacture? - Held that:- There is no doubt that the final products of the appellant are perceived in the market place as different from the jumbo rolls which are raw materials. No doubt both the jumbo rolls and final products such as napkins are made of the same tissue paper. But there is no doubt that the transformation of jumbo rolls into either toilet rolls/ kitchen rolls or in the form paper napkins bring out a distinctive and different use in the article. Evidently, the resultant products are perceived differently in the market - The process undertaken by the a....... + More
- 2018 (6) TMI 985
Valuation - physician sample - MRP Based valuation or not? - Held that:- The assessable value of physician sample which are manufactured on job work basis for others who may be distributing the same free of cost, has to be done on the basis of value arrived at in terms of decision of Hon’ble Apex Court in the case of Ujagar Prints [1989 (1) TMI 124 - SUPREME COURT OF INDIA], where it was held that demand cannot be raised on the basis of MRP on such medicine - Demand on the basis of MRP cannot be sustained - appeal allowed - decided in favor of appellant.
- 2018 (6) TMI 435
CENVAT credit - duty paying documents - improper document (Debit notes) - Documents do not carry necessary details - Whether Central CENVAT Credit can be allowed on the basis of a document which does not carry required details as are provided under Rule 9(1) of CCR 2004? - Held that:- All the particulars as required under Rule 9(2) of Cenvat Credit Rules are undisputedly appearing on the debit note. Therefore the debit note is at par with the documents prescribed under Rule 9(1) of Cenvat Credit Rules 2004. The ratio of judgement in the case of Emmes Metals Pvt. Ltd. vs. Commissioner of Central Excise [2016 (5) TMI 1046 - CESTAT MUMBAI], is squarely applicable in the present case, where it was held that whatever informations required in terms of Rule 4A in the document, more or less all the informations are appearing in the debit notes, t....... + More
- 2018 (6) TMI 174
Refund of excess Excise duty paid - unjust enrichment - finalization of provisional assessment - Section 11B of the Central Excise Act - Revenue has argued that even in the case of provisional assessment finalization, refund can be granted only subject to the test of unjust enrichment. Held that:- An identical issue came up before the Tribunal in the case of Indian Telephone Industries [2016 (11) TMI 14 - CESTAT BANGALORE] where it was held that adjustments at the time of finalization of provisional assessments would be permissible without putting the excess duty paid to the test of unjust enrichment - refund allowed - appeal dismissed - decided against Revenue.
- 2018 (5) TMI 1669
Penalty u/s 11AC - entire payment of disputed tax was paid by the appellant on or before passing of the order-in-original - Held that:- It is accepted and admitted that the appellant herein did not pay the penalty imposed u/s 11AC of the Central Excise Act. Mere payment of differential duty, i.e. duty on the goods S.S. ingots found short by 4510 kg and S.S. flats found in the premises of M/s Shree Shyam Cutter and M/s Shree Ganesh Cutter would not matter once the conditions for imposition of penalty under Section 11AC was satisfied - the payment of duty, whether made before or after issuing of SCN, is not determinative and a relevant factor for deciding whether or not penalty should be imposed under Section 11AC of the Excise Act. This issue is to be decided having regard to the satisfaction or non-satisfaction of the conditions stipulate....... + More
- 2018 (5) TMI 1665
Reversal of Cenvat Credit - electricity generated from by-products, i.e. bagass - electricity generated is partly used for the manufacturing process within the factory and partly sold out to Maharashtra State Electricity Distribution Co. Ltd. (MSEDCL) - The case of the department is that the electricity sold out to the electricity company is liable to payment of 6% amount in terms of Rule 6 (3) (i) of CCR 2004. Held that:- Though electricity can be considered as exempted goods as non-excisable but the facts of the present case is that the electricity is generated from by-products, i.e. bagass, which is neither a dutiable goods nor liable for payment of 6% in terms of Hon’ble Supreme Court judgement in the case of DSCL Sugar Ltd. [2015 (10) TMI 566 - SUPREME COURT]. Rule 6 (3) (i) is applicable only when a common input, on which cannot ava....... + More
- 2018 (5) TMI 1454
CENVAT credit - input services - outward transportation during the period April, 2011 to March, 2016 - Board vide Circular No. 97/8/2007-ST dated 23.8.2007 - Held that: - during the relevant period, there was a clarification of Board vide Circular No. 97/8/2007-ST dated 23.8.2007, according to which the credit on outward transportation was allowed, subject to conditions imposed - As per the facts of the present case, the sale is undisputedly on FOR basis as transportation charges is included in the assessable value of the goods, which is seen from the purchase order. Since it is on FOR basis the risk upto the place of removal was borne by the purchaser. Therefore, looking all the three criteria required by Board, the place of removal is at buyer’s place. Therefore, in terms of the circular, appellant was very much entitled for the CENVAT ....... + More
- 2018 (5) TMI 1412
Clandestine removal - M.S. Ingots - whether the principal Commissioner in its impugned order in original dated 11.01.2018 is justified in confirming the demand of Central Excise duty of ₹ 2,56,803./- alongwith interest and penalty, in respect of clandestine removal of 80.695 the MT of M.S Ingots recovered from the appellant? - Held that: - In the impugned order nowhere it has been discussed as to how the demand of duty of ₹ 2,56,803/- is sustainable in the absence of any clinching evidence of clandestine manufacture and removal of the goods - There is absolute no evidence on record to show that the appellant-Ms. Ashok Ispat Udyog had cleared 80.695 MT of MS ingots and entire demand is purely based upon the statement of Sh. S.K. Pansari Prop. of M/s. Monu Steel. Only on the basis of statement of third person no demand could be made - penalty on Director also set aside. Appeal allowed - decided in favor of appellant.
- 2018 (5) TMI 1346
Recovery of excess refund allowed - Section 11A of Central Excise Act - Held that: - without challenging the said refund claim in appeal, show cause notice cannot be issued under Section 11A of the Act - reliance placed in the case of COMMISSIONER OF CENTRAL EXCISE, VERSUS M/S. JELLALPORE TEA ESTATE [2011 (3) TMI 11 - GAUHATI HIGH COURT] - demand against assessee not sustainable - appeal allowed - decided in favor of assessee.
- 2018 (5) TMI 1339
Demand of interest - default in the payment of duty beyond thirty days from the due date - utilization of CENVAT credit in payment of duty - Held that: - the payment of excise duty by utilizing the cenvat credit is not violative of Rule 8(3A) of the Central Excise Rules, 2002 - appeal dismissed - decided against Revenue.