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Case Laws
Showing 321 to 340 of 1251 Records
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2012 (12) TMI 933
Penalty - Clearance of scrap - Held that:- Clearance of scrap was on proper documents. There was no other charge on the part of the appellant to suppress the clearance of such scrap. As such, it could be a bonafide belief on their part that such scrap did not attract any duty. In these circumstances, by extending the benefit of doubt to them, I set aside the penalty imposed - Decided in favour of assessee.
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2012 (12) TMI 932
Denial of CENVAT Credit - Credit on MS Angles, channels etc. - Held that:- Assessee is not entitled for “input credit” on the above items as the same are not a part of capital goods - appellant has not made out a case for 100% waiver of pre-deposit - Following Vandana Global Ltd. vs CCE, Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - decision of Decided conditionally in favour of assessee.
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2012 (12) TMI 931
Recovery of excess credit taken - Interest - - Held that:- that this is a case of mistake rather than any action with intention to evade payment of duty especially in view of the fact that the credit taken was not utilized. Further I notice that the majority of instances happened in one month that is March 2009 when as per pleading they had some change in the staff. Therefore, I accept the pleading of the appellant for waiver of penalty - Decided in favour of assessee.
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2012 (12) TMI 930
Availment of CENVAT Credit - Non production of proper documents - Held that:- I am not in agreement with the contention of the appellant that the extended period of time should not be invoked in this case because they are required to exercise due care while taking the credit. As a prudent and experienced central excise assessee the appellant would have noticed the defects but still they chose to take credit without disclosing the defects to the department. I give the appellant an option to pay 25% of the penalty within 30 days of receipt of this order for final closure of the matter. If such payment is not made, the full amount of penalty will be payable after 30 days of the receipt of the order - Decided partly in favour of assessee.
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2012 (12) TMI 929
Penalty - Suppression of facts - Held that:- Revenue has not adduced any evidence to prove suppression on the part of the respondent and the allegation is based only on presumption. Revenue has also not made the main manufacturer a party to the adjudication proceedings. That being the case, I accept the contention of the respondent that there was no suppression on their part and consequently no penalty is imposable on the respondent in the facts and circumstances of the case - Decided against Revenue.
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2012 (12) TMI 928
Penalty - wrong availment of credit - whether these appellants are liable to pay penalty of Rupees one lakh each confirmed against them in the two Orders-in-Appeal - Held that:- no detailed investigation has been conducted as to which goods were sent with invoices to receiving unit via. Dealer. of course it can be argued that this is not necessary, but it would have made offence case against appellants stronger. In any case, taking into account the fact that the recipients have paid the cenvat credit wrongly availed with interest, I find it fair to take a lenient view as submitted by the ld. Counsel. Accordingly penalty is reduced to Rs.15,000/- from Rs.1 lakh on each of the appellants in each appeal - Decided partly in favour of assessee.
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2012 (12) TMI 927
Reversal of CENVAT Credit - appellant is sending inputs on Caustic Potash Pellets on which credit has been taken for conversion into Potash Pellets on job work basis to two job-workers - One Job worker returned 100% Credit whereas other returned only 90% - Held that:- In the case of Bharat Radiators Ltd. [2002 (3) TMI 685 - CEGAT, MUMBAI] it was held that weight of goods received back after processing from the job-worker reduced on account of processing cannot result in denial of credit. The facts in this case are covered by this decision. In the absence of any further investigation, the decision of the Tribunal cited above would cover the issue since the process loss is not shown as genuine. This is further confirmed by the fact that there is correspondence between the appellant and the job-worker that there is 10% process loss. In the absence of investigation and in view of the decision of the Tribunal which clearly is in appellant’s favour I have to hold that the appellants have made out a prima-facie case for waiver of pre-deposit of all dues - Stay granted.
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2012 (12) TMI 926
CENVAT CRedit - Whether the respondent is eligible for cenvat credit of service tax paid on services used exclusively for fulfilling various procedures/ requirements for export of goods - Held that:- there are several decisions of the Tribunal taking a view that in the case of FOB exports, the place of removal is the Port and therefore, credit of service tax paid on CHA Services/ Port services are admissible - Following decision of Meghachem Industries [2011 (4) TMI 221 - CESTAT, AHMEDABAD] and Fourrts (I) Laboratories [2009 (10) TMI 175 - CESTAT, CHENNAI] - Decided against Revenue.
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2012 (12) TMI 925
Waiver of pre-deposit - Held that:- appellant has shifted focus from excisability, classification etc. to limitation for the present purpose. We have to consider this issue at this stage. The statement of the Microbiologist has been perused and the same indicates that mineral water was manufactured by the appellant by a process involving several stages, viz, treatment with chlorine gas, filtration, blending, reverse osmosis, treatment with UV light etc. This statement of the expert was only corroborated by a senior functionary of the Company. Note 2 to Chapter 22 of the Tariff Schedule is, prima facie, applicable to the facts of this case and, therefore, there is no escape from the fact that the appellant was manufacturing mineral water chargeable to duty of excise under the appropriate sub-heading of Heading 2201. Apparently, the manufacturing process was not disclosed by the appellant voluntarily to the department at any stage. The internal auditors of the department visited the factory and gathered the information in May 2009. The show cause notice in this case was issued in 2010 invoking, apparently rightly so, the extended period of limitation under the proviso to Section 11 A (1) of the Central Excise Act. The plea of bona fide belief is itself untenable, inasmuch as the law prevailing during the material period clearly required payment of duty of excise on the appellant's product and also required addition of clearances of the exempted product (ready mixed concrete) to the clearances of mineral water for the purpose of the SSI exemption notification as amended. The appellant cannot plead ignorance of law. Prima facie , therefore, the demand is not time.-barred - Conditional stay granted.
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2012 (12) TMI 924
Denial of CENVAT Credit - Credit taken on invalid invoices - Held that:- Cenvat credit, in question, has been taken on the basis of four invoices issued by M/s. Karanveer Singh & Brother in March, 2008 in respect of the services provided by them during the period of June, 2005 till Feb., 2008. Prima facie, the contention of the department that the invoices in question, having been issued after 14 days from the date of providing taxable services are not valid for cenvat credit, does not appear to be correct as these invoices have to be treated as supplementary invoices and the cenvat credit could be denied only when the non-payment of service tax by the service provider was due to fraud, suppression of facts, intentional contravention of the rules with intent to evade payment of service tax. However, since the service tax demand itself against the service provider was dropped by the original adjudicating authority and that order of the original adjudicating authority was upheld by the Commissioner (Appeals), the department's allegation that non-payment of service tax by M/s. Karanveer Singh was due to fraud, wilful mis-statement, intentional contravention of rules is prima facie not sustainable. The only ground on which the cenvat credit could be denied to the appellant is that after dropping of the service tax demand the service provider has taken its refund, but this is not the contention of the department. In view of this, I am of the prima facie view that the Appellant have strong prima facie case - Stay granted.
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2012 (12) TMI 923
Denial of CENVAT credit - Validity of documents on which Credit was taken - Held that:- impugned order passed by the Commissioner (Appeals) clearly states that the goods, in question, had been imported by M/s. Siemens Ltd. and subsequently, the same were sold to SVACPL, who in turn have sold them to the appellant thereby passing on the cenvat credit to the tune of Rs.5,72,286/-. Thus, this is case where the it is not disputed that M/s. Siemens Ltd. were registered as a dealer and subsequently after taking over of the business of Automotive division of the Siemens Ltd. by SVACPL, SVACPL also obtained registration as a registered dealer. When it is not disputed that the goods, in question, on which the cenvat credit had been taken by the appellant, had been sold to M/s. SVACPL, who, in turn, sold the same to the appellant, it would not be correct to deny the cenvat credit when both the M/s. Siemens Ltd. and M/s. SVACPL were registered as dealers. SVACPL can be treated as second stage dealer and the invoice issued by them would be valid document for cenvat credit. I also find that in identical case of M/s. Venus Stampings Pvt. Ltd. (2006 (7) TMI 65 - CESTAT,NEW DELHI) when the business of one registered dealer is taken over by another registered dealer along with stock of goods, the invoices issued by that registered dealer who had taken over the business along with the stock, would be valid document for cenvat credit - Decided in favour of assessee.
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2012 (12) TMI 922
Reversal of CENVAT Credit - whether the appellants are required to reverse actual amount of Modvat/Cenvat credit availed on the Molasses used for manufacture of rectified spirit consumed by them in their liquor manufacturing section for manufacture of Indian Made Liquor (IML) or can the appellants reverse 8% of the value of rectified spirit as provided under Rule 57CC - Held that:- Any intermediate product can be an intermediate product for the purpose of manufacture of IMFL but by itself it is final product also. Rectified spirit is sold in the market. Thus it is an excisable product falling under chapter sub heading 2204.90. IMFL is non-excisable product. Rule 57CC speaks of final product as exempt or chargeable to nil rate of duty. Thus it will cover only excisable product and not non-excisable product. Hence, we hold that IMFL is not a final product in the instant case. We are therefore left only with the rectified spirit. Rectified spirit is an excisable product as it is classifiable under Chapter 22. Thus both the words "Exempt from the whole of duty of excise or chargeable to nil rate of duty" will be applicable to rectified spirit. Rectified spirit is also cleared as rectified spirit and therefore, an amount of 8% of the price shall be reversible. We accordingly hold that 8% of the sale price of extra neutral alcohol and rectified spirit which are chargeable to nil rate of duty while removing from the factory shall be debitable and hence is sustainable in law - Following decision of COMMISSIONER OF C. EX., LUCKNOW Versus KESAR ENTERPRISES LTD.[2000 (8) TMI 175 - CEGAT, NEW DELHI] - Decided in favour of assessee.
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2012 (12) TMI 921
SSI exemption - Limit to SSI Exemption - Revenue contends that respondent are not a separate manufacturer inasmuch as they are a division of the main manufacturer M/s. Premium Suitings (P) Ltd., UPSIDC Industrial Area, Jainpur, Kanpur and as such the aggregate value of the clearances of all excisable goods for home consumption from one or more factories of the respondent during the previous financial year were in excess of the threshold limit - Held that:- The benefit of SSI exemption is available to a manufacturer manufacturing the specified goods only if the clearances of all excisable goods manufactured by that manufacturer in one or more factories and cleared for home consumption during the previous financial year is within the specified threshold limit, which during the period of dispute was Rs. 3,00,00,000/- (Rupees Three crores). In this case, it is undisputed that the respondent i.e. chemical division of M/s. Premium Suitings (P) Ltd. is part and parcel of the main manufacturer engaged in manufacture of textiles and, therefore, the respondent unit i.e. chemical division of M/s. Premium Suitings (P) Ltd. cannot be looked at in isolation for the purpose of determining its eligibility for SSI exemption and for this purpose, the clearances for home consumption of all excisable goods of the respondent unit have to be clubbed with the clearances of excisable goods manufactured by other factories of the respondent-company during the previous financial year and on that basis, the respondent would not be eligible for SSI exemption. We, therefore, hold that the impugned order extending the benefit of SSI exemption to the respondent unit is contrary to the provisions of law and is not sustainable - Decided in favour of Revenue.
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2012 (12) TMI 920
Valuation of goods - Determination of assessable value on the basis of their MRP - Penalty u/s 11AC - Held that:- all the items which are being cleared in combination pack are notified under Section 4A for assessment of the duty on the basis of their MRP. There is also no dispute that each of the items in the combination pack was individually packed and while the individual items of the combination pack were not carrying individual MRP on them, there was MRP for the combination. There is also no dispute that the combination packs were not further packed in a bigger pack and according to the Appellant were being delivered together tied by a ribbon. The point of dispute is that as to whether in respect of clearances of such “combination packs”, duty liability is to be determined in respect of each item in the combination on the basis of its individual MRP or duty is to be calculated by treating the combination as one item on the basis of its combined MRP.
There is one more reason as to why the combined MRP of the combo pack can not be the basis for determining the assessable value under Section 4A. Rule 15 of the SWM Rules refers to the “combination pack” of dissimilar items which are actually packed in a bigger pack on which MRP is required to be declared. In this case, admittedly the combination packs of Referigerator with water purifiers, Refrigerators with washing machines or CTVs with VCD players are not actually packed in a bigger package. The “combination packs” in this case have to be treated as combination sales as a marketing strategy under which on purchase of two items refrigerator with washing machines, refrigerator with water purifier or CTVs with VCD players, the price charged is less than their individual MRP. Such combination sales, in our view, cannot be treated as “combination pack” or packaged commodity as understood in SWM Rules and have to be treated as sale of individually packed items at a combined price - Decided against assessee.
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2012 (12) TMI 919
Benefit of Notification No. 29/96-C.E. (N.T.), dated 3-9-1996 - Whether during the period of dispute, common central excise registration had been correctly granted to the appellant or not - Held that:- Manual of Supplementary Instructions, separate registration is required in respect of separate premises of the same manufacturer except in the cases where two or more premises are actually part of the same factory [where process are interlinked but are separated by public road, canal or railway line] and that the fact that the two premises are part of the same factory to be decided by the Commissioner based on the factors such as the product being manufactured in one premises being substantially used in the other premises for manufacture of final products, large number of raw materials being common, common electricity supply, common labour force, common administration/work management, common sales tax registration and assessment, common income tax assessment etc. In this case, the bulk of the yarn manufactured in the yarn unit is used in the fabric unit for manufacture of fabrics.
It is also not denied that the electricity supply of the two units is common and the sales tax assessment and administration is also common. Beside this, we also find that the appellant have one single registration under the Factories Act and Pollution Control Act and that other statutory authorities like ESI, PF etc. In view of this, we hold that the two units of the appellant company have to be treated as one factory and hence common registration certificate has been correctly granted to them. Since, during the period of dispute, they had already been issued a common registration, they have to be treated as composite mill and, hence, the benefit of Notification No. 22/96-C.E., dated 23-7-1996 for the purpose of duty exemption in respect of yarn cleared by the yarn division to fabric division and the benefit of Notification No. 29/96-C.E. (N.T.), dated 3-9-1996 for the purpose of Modvat credit to fabric division had been correctly availed and, as such, the demands for duty and Modvat credit against the appellant company are not sustainable - Decided in favour of assessee.
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2012 (12) TMI 918
Valuation of goods - Determination of assessable value of goods - Place of removal of goods - Held that:- about 17% of the sales were to independent buyers, at the factory gate and it is not the allegation of the department that those were not genuine sales and that the price was not the correct price. Therefore, the factory gate price to independent buyer would be the assessable value even in the cases under dispute, where the appellant had arranged the transportation of the goods and in addition to the factory gate price have charged freight, charges at equalised rates from the buyers. In our view even if the amount charged by the appellant towards freight at equalised rate is more than the amount of expenses incurred on freight the differential freight would not be includible in the assessable value so long as it is not the case of the department that the sale price for delivery of the goods at the factory gate to independent buyers is not the correct price or that the same had been artificially depressed and the freight expenses has been artificially inflated. The “additional consideration” which is includible in the assessable value of the goods is the consideration for the goods being sold, which is in addition to the declared sale price.
Any amount being received by a manufacturer from the buyer of the goods cannot be termed as “additional consideration” and added to the value of the goods it must be shown that it is sale of the goods, not for some other transaction. Thus if the amount being received by the Assessee is for some service like transportation, transit insurance etc. being provided to the buyer after clearance of the goods from the place of removal, that amount would not be includible on the assessable value. The burden is on the Department to prove that the price at the place of removal had been depressed and the balance price is flowing as additional consideration by inflating transportation/insurance charges.
So far as the period prior to 28-9-1996 is concerned, the price for the delivery at the factory gate would be applicable even in the cases where the appellant after clearance of the goods from the factory had arranged the delivery to the customers, as there is no allegation that the in 17% sales where the goods had been sold to independent buyers for delivery at the factory gate, the price is not the correct price and had been artificially depressed - As regards, the period w.e.f. 28-9-1996, in respect of this period, it is not the department’s case that the sales were not at the factory gate but at buyer’s premises on FOR destination basis. Once, the department accepts that the sales were at the factory gate and the price for sale at the factory gate is available, there would be no justification to reject the same and take recourse to Central Excise Valuation Rules and add the differential between the freight amount charged at equalised rate and actual freight expenses to the factory gate price - Following decision of Baroda Electric Meters Ltd. v. C.C.E. [1997 (7) TMI 126 - SUPREME COURT OF INDIA] - Decided in favour of assessee.
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2012 (12) TMI 917
Valuation of physician’s sample of medicines, - Held that:- Just because the actual transaction value is higher than MRP/abatement, proceedings cannot be initiated for recovery of duty. Since the issue is covered by the decision of the Tribunal in the case of CADILA PHARMACEUTICALS LTD. Versus COMMR. OF C. EX., AHMEDABAD-II [2008 (9) TMI 98 - CESTAT AHEMDABAD] - Decided in favour of assessee.
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2012 (12) TMI 916
Wrong availment of CENVAT Credit - Shortage of goods - Invoices not in the name of company - Held that:- shortage is admittedly because of removal on cash basis and wrong availment of Cenvat credit took place and the company could not produce evidence showing inputs. As regards wrong availment of cenvat credit in respect of 100% EOU, it can be said that the same is technical in nature, in view of the fact that there have been such similar instances before this Tribunal earlier. Therefore, it cannot be said that the appellant Co. is an exceptional one. Having regard to the fact that there is no evidence of clandestine removal other than shortage and the fact that the statement of director was not fully inculpatory, leniency as regards quantum of penalty is warranted. Accordingly, penalty imposed on the director is reduced - Decided partly in favour of assessee.
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2012 (12) TMI 915
Denial of refund claim - Place of removal - whether refund of service tax paid on CHA service in respect of export of goods is admissible or not - Held that:- In terms of Board Circular dated 23/08/2007 relied upon by the Commissioner (A) as well as decisions of this Tribunal, in the case of export of goods, place of removal has to be considered as port of export - Decided against Revenue.
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2012 (12) TMI 914
Waiver of predeposit - Denial of CENVAT Credit - Invocation of extended period of limitation - Held that:- none of the show-cause notices allege misuse of input services by any of the manufacturing units of the company. It is not in dispute that the input services received by the appellant-company under cover of valid invoices issued by the service providers were shared by the four manufacturing units. It is not in dispute that any amount of CENVAT credit in excess of what was mentioned in the relevant invoices was not taken by any of the units. The only irregularity found by the Department is that the Head Office of the company did not have ISD registration and did not issue invoices to the manufacturing units to enable them to avail CENVAT credit - Decided in favour of assessee.
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9911796707
