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Showing 321 to 340 of 1407 Records
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2015 (2) TMI 1092
Supply of goods to 100% EOU - failure to produce re-warehousing certificate in time - Held that:- As regard the demand of ₹ 38,732/- in respect of export of goods outside India this Tribunal has no jurisdiction to decide the appeal. Therefore I refrain from passing any order in respect of demand of ₹ 38,732/- on export of goods outside India. I therefore take up the appeal only to the extent whether demand of ₹ 43,810/- on the clearance of the goods to 100% EOU. From the facts of the case, it is observed that against clearance of the goods to 100% EOU i.e. M/s. Sun Pharma, appellant were in the possession of re-warehousing certificate, the same was signed by the authorized signatory of the EOU but same was not signed by the Jurisdictional Central Excise Officer of 100% EOU. This was observed in the order-in-original. The appellant subsequently obtained the signature of the jurisdictional officer of the 100% EOU and produced re-warehousing certificate before the Commissioner (Appeals). In such circumstances I do not find any reason for not accepting the re-warehousing certificate by the Commissioner (Appeals). There is no case of the Revenue that the goods cleared to 100% EOU were not supplied to 100% EOU and re-warehoused the same in the 100% EOU. The only dispute was non submission of re-warehousing certificate. In my view it is minor procedural lapse particularly in the case where supply and receipt of goods to 100% EOU is not under dispute. In my considered view goods have been received by 100% EOU and subsequently re-warehousing certificate has been submitted, merely because re-warehousing certificate not submitted in time the demand of duty can not be raised. - Decided in favour of assessee.
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2015 (2) TMI 1091
Waiver of pre deposit - Denial of exemption claim - Whether the appellant would be eligible for exemption under Notification No. 6/06-CE (Sl.No.39) which prescribes nil rate of duty for the motor vehicles for transport of goods (other than those specially designed for transportation of compressed and Liquefied Gasses) falling under heading 8704 of the tariff subject to condition that the vehicle has been manufactured out of chassis falling under heading 8706 on which the excise duty has been paid and the body builder has not taken cenvat credit of the duty paid on chassis or other inputs used in the manufacture of such vehicles, and also that the manufacturer of the vehicle is not the chassis manufacturer - Held that:- w.e.f. 2005 Chapter Note 5 has been introduced to Chapter 87 according to which, for the purpose of this chapter building of body or fabrication or mounting or fitting of the structure or equipment on the Chassis falling under heading 8706 shall amount to manufacture of motor vehicle. In view of this chapter note, which was introduced since 2005, the chassis with the body constructed by a body builder, would have to be classified as a motor vehicle and since in this case the vehicle manufactured are meant for transportation of goods the same would be classifiable under heading 8704. The judgment of Honble Punjab and Haryana in the case of Union of India vs. Darshan Singh Pavitar Singh (1989 (12) TMI 55 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH) pertains to the period when chapter note 5 was not there. - in the appellants own case in respect of another manufacturing unit, the Tribunal vide order No.54303/2014 dated 26.11.2014 has granted unconditional stay. In view of this, the requirement of pre-deposit of the duty demand, interest and penalty is waived for hearing of the appeal and recovery thereof stayed. - Stay granted.
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2015 (2) TMI 1090
Waiver of pre deposit - Duty demand - Related person - Valuation - Captive consumption - Held that:- Merely because the assessee and his buyers are interconnected undertakings in terms of section 2(g) of Monopolies and Restrictive Trade Practices Act, 1969, for the purpose of valuation, the two cannot be treated as related person and the transaction value cannot be rejected merely on this basis, that for rejecting the transaction value in such cases the conditions prescribed in Rule 10 of the Central Excise Valuation Rules have to be satisfied which are that - (a) all the sales of the excisable goods are to or through the interconnected undertaking; and (b) either the assessee or its buyer are the holding company or subsidiary company or they are also related in terms of clause 2nd, 3rd or 4th of section 4 (3)(b) and only when the above conditions are satisfied , the transaction value can be rejected and has to be determined in the manner prescribed in Rue 10. In this case according to the appellant, these conditions are not satisfied, but the commissioner (Appeals) in the impugned order has not examined this plea. - Matter remanded back - Decided in favour of assessee.
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2015 (2) TMI 1089
Denial of SSI Exemption - exemption notification no. 8/03CE - Captive consumption - whether the aggregate value of the appellants clearances for home consumption during 2008-09 was ₹ 3,36,81,178/- as claimed by them or had exceeded ₹ 4 crore and was valued at ₹ 4,16,75,078/- has held by the Additional Commissioner - Held that:- departments calculations regarding the aggregate value of clearances for home consumption during 2008-09 are based on Deputy Commissioners report dated 19/2/2013. The hearing in this case had been held on 13/01/2013. The Deputy Commissioners report dated 19/2/2013 which has been relied upon by the Additional Commissioner, has, thus, not been supplied to the appellant which would amount to violation of the principles of natural justice. The difference between the value of clearances as per the appellant and the value of the clearances as per the department, appears to be on account of the number of items which are covered for valuation under section 4A and this dispute can be resolved only when the basis of the calculation as per the Deputy Commissioners report is disclosed to the appellant. Accordingly, the impugned order is set aside and the matter is remanded to the Original Adjudicating Authority for de-novo adjudication - Decided in favour of assessee.
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2015 (2) TMI 1088
Valuation of goods - Whether or not value of the drawings and designs supplied by the Customers of the appellant are to be included in the assessable value of the goods manufactured by the appellant - Held that:- First date of hearing had been fixed on 26/2/2014 and had been intimated under the Department’s letter dated 6/2/2014 under which the relied upon documents had been supplied. Thereafter under letter no. V (Ch84) 15-373/ADC/Bhi-II/2012/ADJ/3283 dated 28/2/2014 the appellant was informed that the hearing is adjourned to 12/3/3014. However, on the same day, another letter bearing no. V(Ch84)15-373/ADC/BhI-I/2012/ADJ/3314 dated 28/2/2014 was issued to the appellant informing him that the personal hearing has been adjourned to 20/3/2014. The implication of the second letter would be that hearing earlier fixed on 12/3/2014 has been adjourned to 20/3/2014 and hence, the date of hearing fixed on 12/3/2014 cannot be taken as the opportunity for personal hearing and as such the appellant has given only two opportunities for personal hearing on 26/2/2014 and thereafter on 20/3/2014 and as per the mandatory provisions they should have been given at least, one more opportunity for hearing. The appellant had requested for adjournment for hearing for April, 2014 on account of sickness of their Director, but the same was not acceded to. In our view, this decision of the Commissioner is not correct and as such the order has been passed without giving adequate opportunity for personal hearing of the appellant. In view of this, the impugned order is set aside - Decided in favour of assessee.
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2015 (2) TMI 1087
Valuation - Determination of assessable value - Inclusion of value of drawings - Held that:- Since in this case the goods being manufactured by the appellant are custom made and as per the requirements of each customer, for determining the value of the goods manufactured for a particular customer, the price of the goods supplied to other customers cannot be applied. In these circumstances, we are of the view that in the cases where the goods were manufactured by using the drawings supplied by the customers, the value of the drawings would have to be included in the assessable value of the goods. However, in this regard, the Commissioner has adopted value of the drawing as 10 per cent of the value and the goods for which he has not given any justification. On the other hand, the appellant's plea is that in the cases where the drawings and designs have been supplied by the customer, their cost is 0.1% of the value of the goods and in this regard, they rely upon the Chartered Engineer's Certificate. While cost of drawings and designs as 10% of the value of the goods adopted by the department is arbitrary, unreasonable and without any basis and same cannot be accepted, the Commissioner while rejecting the value claimed by the appellant based on the chartered engineering certificate has to give reasons for the same. - Impugned order is set aside - Matter remanded back - Decided in favour of assessee.
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2015 (2) TMI 1086
Duty demand - Clearance of goods without payment of duty - Non maintenance of proper documents - Held that:- Appellants director has admitted clearance of the goods without payment of duty without accounting any records and from the statement or details provided from him, no further investigation could have been carried out. In view of the said position, in the facts and circumstances of the case, the demand is upheld. As far as the contention of the ld. counsel about the cross examination is concerned, in view of the Supreme Court decision in Surjeet Singh Chhabra (supra), the contention is rejected. As far as the limitation is concerned, the place was searched on 24.09.2003 and the show-cause notice has been issued on 28.12.2007 which is within five years and therefore, keeping in view the clandestine nature of the clearance the proviso to Section 11A would be applicable. However, as far as penalty is concerned, we find that in the investigation further details have not been investigated and under the circumstances, penalty imposed under Section 11AC is set aside. - Decided in favour of assessee.
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2015 (2) TMI 1085
Refund - Duty was paid under Compounded levy scheme - whether the appellant has passed on the burden of excise duty to their customers - unjust enrichment - Held that:- It is an admitted fact that appellant was not indicating the excise duty separately in the invoice and the invoice were indicating the cum duty price. The appellant has not been able to produce any accounting document such as balance sheet etc. to prove that the said amount has been paid by them separately and is being considered as receivables even now. In the absence of any evidence the claim of the appellant that they have not passed on the burden of duty to the consumer is a bald statement and cannot be accepted. - Decided against Assessee.
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2015 (2) TMI 1084
Transfer pricing adjustment - additional evidence provided by the assessee not admitted - Held that:- DRP has not followed the directions of the Tribunal. The evidence filed by the assessee before it should have been taken on record as per section 144(C) (6) (c) of the Act and it goes into the root of the matter and are necessary for adjudication of the appeal. In these circumstances, we are of the considered opinion that the additional evidence provided by the assessee should be admitted.
In the result, we admit these additional evidences. As these evidences have to be considered on merit, we set aside the matter to the file of the AO for fresh adjudication, after obtaining a report from TPO. The TPO shall pass an order De-novo, after providing adequate opportunity to the assessee. - Decided in favour of assessee for statistical purposes.
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2015 (2) TMI 1083
Penalty u/s 112(a) on courier agency - Failure to inform that the goods are second hand - Confiscation of goods - Held that:- Appellant is absent, inspite of several opportunities given, and accordingly the appeal is being disposed of after hearing the Ld. AR and perusing the records. This Tribunal finds no case of mis-declaration by the courier, as it is evident on the face of the document the invoice and courier shipment airway bill that the import in question is made for repairs and thereafter for sending back. These documents are annexed to the bill of entry at the time of clearance. As such the authorities below are in error in holding that a case of mis-declaration and suppression is made out against the appellant courier agency. Further SO2 Analyser is a capital goods under para 9.12 of FTP, which includes ‘instrument for testing, research, quality on pollution control' - Courier agency is entitled to refund of pre-deposit made during the investigation or pending of proceedings. - Decided in favour of appellant.
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2015 (2) TMI 1082
Denial of refund claim - Notification No. 102/2007-Cus dated 14.9.2007 - SAD - Held that:- It is seen that the documents placed by the Respondent before the Commissioner (Appeals) were not properly examined by the adjudicating authority. In view of that, the impugned orders are set-aside and the matter is remanded to the adjudicating authority to examine the documents. Learned Advocate is directed to cooperate with the adjudicating authority in de-novo adjudication. Needless to say that the adjudicating authority shall give proper opportunity of hearing before decision. - Decided against Revenue.
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2015 (2) TMI 1081
STP Unit - assessee had imported certain items in excess of those assessed in the respective Bills of Entry - Confiscation of goods - Imposition of redemption fine and penalty - Notification No.52/2003-Customs - Held that:- TP unit (respondent) was at liberty to obtain a procurement certificate and there was no need for the respondent to indulge in any fraud. He has also observed that there was a mix-up at the supplier’s end and respondent was not aware of the excess goods. I also agree with the view taken by the learned Commissioner (A) that the respondent had paid the duty and interest. Under the circumstances, it would be appropriate to take a lenient view and set aside the penalty and redemption fine. Accordingly, I do not find any merit in the appeal filed by the Revenue - Decided against Revenue.
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2015 (2) TMI 1080
Denial of refund claim - Rule 5 of CENVAT Credit Rule - no nexus between the final product manufactured and the input services - Bar of limitation - Held that:- The original authority had rejected a portion of the claim on the ground that the time limit under Section 11B is applicable and refund would be admissible only in respect of claims attributable to services on which tax was paid after 12.6.2006. Both sides agree that all the issues have been dealt with in Interim Order No.79-152/2014 dated 29.8.2014 passed by this Tribunal in the case of Apotex Research Pvt. Ltd. & Ors. vs. CCE and also agreed that the matter has to be remanded to the original authority to examine the refund claim and calculate the admissible amount and pay the same in the light of the decision of the Tribunal rendered supra. Therefore the impugned order is set aside and the matter is remanded to the original authority - Decided in favour of Revenue.
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2015 (2) TMI 1079
Maintainability of appeal - Bar of limitation - Held that:- impugned order of Commissioner (A) was received by the appellant on 30.4.2005 and the normal period for filing the appeal there against expired on or around 30.7.2005. Appeal stands filed on 29.8.2006 without there being any explanation for such delayed filing of appeal. There is no COD application on record. Accordingly, we are of the view that appeal is barred by limitation - Decided against assessee.
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2015 (2) TMI 1078
Refund of Special Additional Duty - sale invoices issued by them did not bear the endorsement ‘no credit of additional duty of customs levied under sub-section (5) of Section 3 of Customs Tariff Act 1975 shall be admissible - Held that:- Issue is no more res integra and stands decided in favour of the assessee by the Larger Bench decision of the Tribunal in the case of Chowgule & Company Pvt. Ltd. Vs. CCE [2014 (8) TMI 214 - CESTAT MUMBAI (LB)]. There are other decisions also laying down that even if said endorsement has not been made in the invoices, which also do not reflect the SAD element, the benefit of the notification cannot be denied to them, on the said sole ground - I set aside the impugned orders - Decided in favour of assessee.
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2015 (2) TMI 1077
Duty demand - Clandestine removal of goods - Held that:- Charges of clandestine removal are required to be proved by the Revenue by production of sufficient, positive and tangible evidence. The same cannot be confirmed on the basis of doubts and assumptions and presumptions. It is seen that the Revenue has mainly relied upon the entries made in seized Register. It is not disputed that the said Register was not being maintained by the respondent in the ordinary course of their business but was a private Register being maintained by the respondent s employee Shri Nayak. The first obligation on the part of the Revenue was to examine Shri Nayak and record his statement, seeking clarifications in respect of the entries. For the reasons best known to the Revenue officers, this has not been done. - The adjudicating authority had, in compliance with the said directions of the Tribunal, issued summons to various deponents of the statements, who did not appear for the same. As such, he has proceeded to examine the said statements. The adjudicating authority has recorded that the said statements of the holder of bank account, counting clerk, despatch clerk and contractor, etc., are not inculpatory in nature inasmuch as neither of the statements of the said deponents have admitted any misdeed on the part of the company. Statement of Shri Ashok Mittal, Managing Director of the Company has also not accepted the fact of clandestine removal of the goods.
Companies are in no way connected with the assessee company and there is nothing on record to show that they were fictitious firms and the consideration for sale of the goods by the said firms travelled to the assessee. The adjudicating authority has examined the said plea of the assessee and has categorically recorded that the goods cleared under their invoices were rib bars of 8 mm and 25 mm whereas the goods being manufactured by them were from 10 - 20 mm and they do not have machinery to manufacture the said goods. In the absence of any evidence to rebut the findings of the Commissioner, I find no reasons to interfere in the same - In the absence of any other evidence to show that the high power consumption was on account of excess manufacture of goods, he has come to a finding that there is not even preponderance of probabilities as regards the excess manufacture of the goods. - Decided against Revenue.
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2015 (2) TMI 1076
Waiver of pre deposit - CENVAT Credit - Manufacture - appellant were clearing M.S. Profiles on payment of duty and were availing cenvat credit of central excise duty paid on M.S. Sheets - Held that:- Tribunal in the two orders in the cases of Sanjay Industrial Corporation (2003 (3) TMI 170 - CEGAT, MUMBAI) and Pioneer Profile Industries (2005 (12) TMI 420 - CESTAT, NEW DELHI) has held that the process of profile cutting of M.S. Plates and M.S. Sheets as per the design and drawings of the customer to make M.S. Profiles, Circles, Angles, etc. amounts to manufacture. Moreover, even if the Departments contention that the process undertaken by the appellant does not amount to manufacture is accepted, since admittedly the appellant have cleared the M.S. Profiles on payment of duty and the duty paid is more than the cenvat credit availed, the cenvat credit allegedly wrongly taken stands reversed and hence, there is absolutely no justification for demanding the allegedly wrongly taken cenvat credit once again. Rule 3(5) of the Cenvat Credit Rules, 2005 permits the clearance of the inputs as such on payment of an amount equal to the cenvat credit availed and if the Departments stand that the process does not amount to manufacture is accepted, the appellants activity would amount to clearing the cenvat credit availed inputs as such on payment of an amount which admittedly is not less than the cenvat credit availed. In view of the above, the impugned order is not correct and the appellant have strong case in their favour. Hence, the requirement of pre-deposit of duty demand, interest and penalty is waived for hearing of the appeals and recovery thereof is stayed - Stay granted.
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2015 (2) TMI 1075
Differential Duty demand - Determination of assessable value - exemption under notification no.50/03-CE dated 10.06.2003 - Department determined the assessable value on the basis of annual cost of production based on CAS-4 format and compared the same with the assessable value adopted for each month and in whichever month, lesser value had been adopted resulting in lesser payment of duty, differential duty has been demanded - Held that:- Appellant were also determining the cost of production for the entire financial year in CAS-4 format and if the assessable value determined on the basis of this cost of production was more than the assessable value adopted during certain months resulting in lesser payment of duty, they were paying the differential duty after adjusting the extra payment of duty, if any, during the other months. It is contention of the appellant that if the payment of duty made by the appellant on their own is taken into account, there would be no duty demand. - appellant have taken specific plea that they were preparing annual CAS-4 certificate and were paying the duty on shortfall, if any, after adjusting the excess duty paid by them in some of the months. There is no finding on the above plea of the appellant. If the appellant have actually paid the differential amount of duty, the same would lead to a situation where no duty liability would arise against the assessee. In view of this, this matter has also to be remanded to the Commissioner with the same directions. - matter remanded back - Decided in favour of assessee.
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2015 (2) TMI 1074
Denial of Input credit - credit on the items namely Steel/ Mill Plates & HR Sheets, Jointing Sheets, V Belt, Centrifugal Screen as well as paints & welding electrodes on the premise that these are used in fabrication of capital goods. - Held that:- Usage of these items includes staging supporting structures and factory for general maintenance, roofing purpose and used in erection of capital stock admittedly the usage of these items which have been recorded by the Ld. Commissioner (A) in the impugned order are not in nature of usage of fabrication of capital goods. Therefore, the Cenvat Credit on these items namely HR sheets PMP plate different sheet and steel plate is not admissible to the respondent. Consequently the respondent is directed to reverse the said Cenvat Credit along with interest. As the issue is of deciding whether they are admissible to the Cenvat Credit on these items was in dispute during the relevant period. - However, penalty is not imposable - Decided partly in favour of Revenue.
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2015 (2) TMI 1073
Deduction on account of bad debts written off - Held that:- It is pertinent to mention that the admissibility of deduction u/s 36(1)(vii) is coupled with the fulfillment of the condition as given in section 36(2). The later provision provides that no such deduction shall be allowed unless such debt or part thereof has been taken into account in computing the income of the assessee of the previous year in which the amount of such debt or part thereof is written off or of an earlier previous year, etc. A conjoint reading of section 36(1)(vii) and section 36(2) makes it abundantly clear that any amount of bad debt written off during the year can be allowed as deduction provided such debt or part thereof was taken into account in computing the income of the assessee for this year or an earlier year. Unless such debt is taken into consideration in the computation of total income, there can be no question of allowing deduction on its becoming irrecoverable or on a mere write off. As necessary facts of this issue are not available and the ld. CIT(A) has simply accepted the assessee's claim without going into the deductibility of this amount as per law in terms of above discussion, we set aside the impugned order and remit the matter to the file of AO for deciding this issue afresh in conformity with our above observations. Needless to say, the assessee will extend full co-operation to the AO by submitting the details called for and will be entitled to a reasonable opportunity of being heard in such fresh proceedings. - Decided in favour of revenue for statistical purposes.
Addition on account of provision for contractor and provision for suppliers - CIT(A) deleted the addition - Held that:- CIT(A) deleted the addition without going into the merits of its deductibility in the first instance. He simply mentioned in the impugned order that the assessee had shown that the provisional balances were specifically adjusted against the bills of sub-contractors. In contrast to that, we observe from the assessment order that the assessee did not furnish any details and anything about the otherwise deductibility of such provisions. Further, there is no elaborate discussion about these vital aspects in the impugned order. We, therefore, set aside the impugned order on this issue and remit the matter to the file of AO for a fresh determination of the same as per law, after allowing a reasonable opportunity of being heard to the assessee.- Decided in favour of revenue for statistical purposes.
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