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Case Laws
Showing 321 to 340 of 1237 Records
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2014 (3) TMI 919
Waiver of pre-deposit of CENVAT Credit - Inputs destroyed during process of manufacture - though had issued the inputs for manufacture of finished goods, but the same were not used in the manufacture but had been lost/destroyed in the process. - Held that:- There is no allegation that the inputs as such were lost and hence no credit would be admissible on the same. On the issue of eligibility of CENVAT Credit, on inputs contained in the WIP material lost/damaged, prima facie, we find that this Tribunal in the case of Arvind International Ltd.’s case (2012 (12) TMI 264 - CESTAT, NEW DELHI) had taken a view that in respect of the inputs, contained in the work in process material, destroyed in fire, is eligible to CENVAT Credit. In view of the said decision, we are of the opinion that the Applicant could able to make out a prima facie case for total waiver of pre-deposit of dues adjudged - Stay granted.
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2014 (3) TMI 918
Maintainability of miscellaneous application as Appeal - Condonation of delay - Refund / Rebate of duty paid on goods supplied to SEZ - Earlier order passed by Court in [2013 (6) TMI 610 - CESTAT MUMBAI] - Difference of opinion - Majority order - The order of the lower appellate authority dated 02/05/2012 has not been challenged by the appellant and has thus become final. However, vide Miscellaneous application dated 22/08/2013, the appellant has sought for implementation of this Tribunal's order dated 26/05/2011 [2013 (6) TMI 610 - CESTAT MUMBAI].
Held that:- Miscellaneous application is not a substitute for an appeal as provided in law - There is no provision or procedure under the Central Excise Act to consider a miscellaneous application as an appeal and condone the delay suo motu even without knowing the reasons for delay. In the earlier order of the Tribunal, there are no findings in relation to rebate even though in the facts position, certain arguments of the appellant are mentioned. Moreover, clause (b) of first proviso to Section 35B(1) prohibits this Tribunal to entertain appeals relating to rebate claim - miscellaneous application is not maintainable as the same cannot be considered as an appeal as provided for in the law relying on the decision of Hon'ble Apex Court in the case of State of Punjab and Ors. Vs. Gurdev Singh, Ashok Kumar [1991 (8) TMI 328 - SUPREME COURT] - Matter sent back for necessary action - Decided against Appellant.
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2014 (3) TMI 917
Valuation - Whether the freight though charged in addition to the price of the goods and shown separately in the invoices, but charged on equalized basis is excludible from the assessable value - Held that:- Though the new Section in force w.e.f. 1-7-2000, does not have a provision specifically providing for exclusion of the cost of transportation from the place of removal to the place of delivery if the transaction value at the place of removal is not known, the cost of the transportation from the place of removal to the place of delivery has to be excluded as, as per the provisions of Section 4(1)(a), the transaction value has be for delivery of the goods at the time and place of removal. In fact for this reason only Rule 5 of the Central Excise (Valuation) Rules, 2000 specifically provides for exclusion of the cost of freight from the place of removal the place of delivery when it is charged from the customer in addition to the price and is mentioned separately in the invoices. The provisions of Rule 5 of the Valuation Rules, 2000 can thus, be said to be analogous to the provisions of sub-section (2) of Section 4, as it stood during period prior to 1-7-2000 - Decided in favour of assessee.
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2014 (3) TMI 916
Duty demand - Manufacturing of resin and using the same in exempted goods - Held that:- no duty is chargeable on resins and the first appellate authority in the appellant’s own case has set aside the demands confirmed by the adjudicating authority for a period which is subsequent to the period in the issue before us in these appeals, and there being an acceptance of the said order of the Commissioner (Appeals) in the appellant’s own case for the subsequent period, we do not find any reason to sustain the impugned order which is in appeal before us - Following decision of Moti Laminates Pvt. Ltd. - [1995 (2) TMI 67 - SUPREME COURT OF INDIA] - Decided in favour of assessee.
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2014 (3) TMI 915
Denial of CENVAT Credit - Clearance of goods by 100% EOU - Credit to receiver of goods - Revenue contended that Cenvat credit of Customs duty paid is not available to the receiver of the goods, the availment of credit by appellants is against the provisions of the law. - Held that:- In terms of provission of Section 3 of Central Excise Act, 1944, a 100% EOU, when clearing the goods in DTA is required to clear the same on payment of Excise duty. The measure of such duty shall be equal to the amount of Customs duty which would be leviable under Customs Act, 1962 or in any other law for the time being imposed on like goods produced or manufactured, outside India if imported into India. As such what is required to be paid by a 100% EOU is Central Excise duty and not Customs duty - invoices show payment of Central Excise duty and Education Cess on Excise duty. As such admittedly the supplier of the goods has paid Central Excise duty. If the duty paid by the supplier is the Central Excise duty, the appellants is admittedly entitled to the benefit of Cenvat credit of the same - Decided in favour of assessee.
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2014 (3) TMI 914
Recall and rectification of order - Quantum of penalty - High Court and Supreme Court have dismissed the reference application - Held that:- Once the provisions of Section 11AC are held to be invocable against the appellants, the Tribunal has no jurisdiction to reduce the penalty. In the facts of the present case, we find that the Tribunal vide its earlier order dated 11-10-2000 has held the appellants liable to penalty in terms of provisions of Section 11AC. The said order of the Tribunal stands confirmed by the Hon’ble High Court and subsequently by the Hon’ble Supreme Court - Once the provisions of Section 11AC has been held to be applicable in the appellants’ case, calling for imposition of penalty upon them, such penalty has to be to the extent of 100% of the duty amount. As such by following the Apex Court’s judgment in the case of Rajasthan Spinning & Weaving Mills as also in the case of Dharamendra Textiles, we enhance the penalty equivalent to the duty confirmed against the appellants - Decided against assessee.
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2014 (3) TMI 913
Classification of goods - printed paper boards (wrappers) - Whether to classify the subject goods under SH 4901.90 ‘as products of printing industry’ as claimed by the assessee or under SH 4823.90 as claimed by the revenue - Held that:- Precedent case has classified similar products of different manufacturers as ‘products of printing industry’ under SH 4901.90. The products so classified include printed PVC films, printed polyethylene coated paper etc. This Bench in the said case held that the printing activity was essential rather than incidental. This view was taken after examining the relevant tariff entries and Section Note (Note-2 to Section 11 of the CETA Schedule) - Decided against Revenue.
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2014 (3) TMI 912
Reversal of Cenvat credit - Denial on the ground that the activity of wire drawing does not amount to manufacture - Held that:- demand of duty which has been confirmed by the adjudicating authority and set aside by the learned Commissioner (Appeals) is in respect of Cenvat credit availed by the assessee-respondent on the inputs used for drawing of wire. It is also not disputed that the final product cleared by the respondent-assessee is on payment of appropriate duty during the relevant period. We find that the learned Commissioner (Appeals) has correctly come to the conclusion that the disallowment of Cenvat credit is not in accordance with the law for more than one reason. First of all, the duty discharged by the appellant on the final product, will in a way amount to reversal of Cenvat credit taken and the ratio of the order of the Tribunal in the case of Venus Wire Industries cited supra, will squarely apply in this case. Secondly the CBEC Circular dated 26-7-2006 also talks about regularisation of credits availed on inputs and duty paid on wires drawn by a retrospective amendments. We find that para 4.4 of the said CBEC Circular will apply in this case - Decided against Revenue.
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2014 (3) TMI 911
CENVAT Credit - Whether M.S. Plates, M.S. Angles & Joist, HR sheets etc. used in the factory by the appellant for repair and maintenance of the plants and machinery for replacement of worn out parts or for fabrication of structures and machinery used in production of sugar and molasses are eligible for Cenvat credit as inputs or capital goods - Held that:- There is no mention in this statement that the structures referred to are the supporting structures for the machinery. When these items are used for fabrication of various machinery or their parts, the same would be covered by the definition of ‘input’ and would be eligible for Cenvat credit. When these items are used for repair and maintenance of plant and machinery, the Cenvat credit would be admissible in respect of these, in view of judgment of Hon’ble Rajasthan High Court in the case of Union of India v. Hindustan Zinc Ltd. (2006 (5) TMI 44 - HIGH COURT RAJASTHAN), and of the Tribunal in the case of CCE, Salem v. India Cements Ltd. (2005 (11) TMI 348 - CESTAT, CHENNAI) wherein it has been held that M.S./S.S. Plates used for repair and maintenance of the machinery, which is used for manufacture of final product would be eligible for Cenvat credit. - Decided in favour of assessee.
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2014 (3) TMI 910
Valuation of goods - Textile articles - Job Work - Inclusion of traders profit, Octroi duty transportation charges, loading/unloading charges of fabrics and marketing expenses and interest - Held that:- as per C.B.E. & C. Circular No. 619/10/2002-CX., dated 19-2-2002, the traders profit is not includible in the assessable value. The departmental officers are bound by board circular. Therefore, the demand of Rs. 0.94 for addition of traders profit is not sustainable. If at all the demand of transportation, loading/unloading charges and manufacturing expenses are to be taken into account to arrive assessable value, the respondent has already included Rs. 0.75 per metre in the assessable value after adopting the formula as laid down by the Apex Court in the case of Ujagar Prints [1988 (11) TMI 106 - SUPREME COURT OF INDIA] that is cost of raw material + Job charges. Therefore, the charges made in the show-cause notice are not sustainable - Decided against Revenue.
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2014 (3) TMI 909
Waiver of pre-deposit - recovery of the amount which has been refunded to the appellant under the Notification No. 32/99, as amended from time to time - Held that:- it is not in dispute that the appellant had correctly followed the conditions of Notification No. 32/99, as amended from time to time. We find that the said Notification provides exemption from duty on the goods specified in First Schedule and Second Schedule of the Central Excise Tariff Act, 1985 cleared from the Unit located in notified areas in the North-East Zone. We find that prima facie, the appellant has made out a case in their favour and that the view is fortified by judgments of Hon’ble High Court. The show cause notice in this case is issued to the appellant under Section 11A of the Central Excise Act, 1944. As correctly pointed out by the learned Counsel, this has been not accepted as a correct position of law by the Hon’ble High Court of Gauhati in the case of C.C.E., Shillong v. Jellalpore Tea Estate (2011 (3) TMI 11 - GAUHATI HIGH COURT ). In view of the foregoing, we are of the considered view that the appellant has made out a prima facie case for waiver of the pre-deposit of the amounts involved - Stay granted.
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2014 (3) TMI 908
Availment of CENVAT Credit - Cenvat credit was availed on the basis of 27 TR-6 challans under which the appellant’s head office at Mumbai had paid the service tax as service recipient on behalf of the Malanpur unit - Held that:- GTA service in respect of which Cenvat credit had been taken, had been availed by the Malanpur unit of the appellant and since for the payment of service tax on GTA service, centralized registration had been taken by their head office at Mumbai, the service tax had been paid by the head office and on the basis of the TR-6 challans/taxpayer’s counterfoils, the Malanpur unit had availed the Cenvat credit.
Since, the head office of the appellant had opted for centralized registration for payment of service tax and had paid the service tax under TR-6 challans in respect of the GTA service received by Malanpur unit and the Malanpur unit had taken Cenvat credit only in respect of the service tax paid by the head office, on the GTA service received by the Malanpur plant, the issue of invoice by the head office as input service distributor allocating credit to the Malanpur unit would be only technical necessity. We are, therefore, of prima facie view that in absence of such invoices, it would not be correct to deny the Cenvat credit. The requirement of pre-deposit of Cenvat credit demand, interest and penalty is, therefore, waived for hearing of this appeal and the recovery thereof is stayed, till the disposal of the appeal - Stay granted.
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2014 (3) TMI 907
CENVAT Credit - Security services - Held that:- security services are engaged by the respondent in respect of movement of finished goods from factory premises to the port in container. It is also undisputed that such security services were engaged by the appellant due to various incidences of theft of export cargo, at the time of movement of containers is port. On this factual matrix, I find that the security services engaged by the appellant would be required in order to safe-guard the business interest and will be covered under the provisions of Rule 2(l) of CENVAT Credit Rules, 2004 which defines the input services - in respect of export goods, the place of removal is considered as port and if that be so, any expenses or tax till the goods reach the place of export, the benefit of CENVAT Credit has to be extended to the respondent - respondent has made out a case for availment of credit of such Service Tax paid on the security services - Decided against Revenue.
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2014 (3) TMI 906
Liability to pay tax and interest - Demand of interest for not depositing the tax within deferred – Held that:- While taking over the possession of the Assessee`s unit by the M/s Universal Dairy Products Private Limited, the petitioner's unit was actually closed down on 23.12.2002 - The Commissioner u/s 8(2-A) & 4-A of the Act r/w Rule 43 under U.P. Trade Tax Rules, 1948 allowed the deferment in place of exemption in tax on the manufactured products during 31.10.1996 to 22.12.2002 with direction to deposit the admitted tax in terms of Rule 43(4) (b) within three months from 23.12.2002, the day on which the unit was closed down - It was also mentioned in the order itself that on account of closure of business on 23.12.2002, the facility of deferment automatically comes to an end and tax amount ought to have deposited.
The Assessing Authority has already granted the benefit of deferment of all the previous years till the date of closure of the unit and only asked the interest after three months from the date of closure of the unit till the date of actual deposit of tax by the petitioner - the petitioner is liable to pay tax after closure of the unit in terms of Rule 43(4) along with interest – There is no illegality, infirmity or jurisdictional error in asking the petitioner for the payment of interest by the impugned orders and the recovery sought to be made cannot be said to be against the provisions of the Act or the Rules made thereunder – No merits – Petition dismissed – Decided against Assessee.
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2014 (3) TMI 905
Eligibility for exemption of tax – Scheme for exemption from payment of sales tax notified u/s 4(2) of the Rajasthan Sales Tax Act, 1954 - Interpretation of Statute – Principle of harmonious construction - Intention and object of the legislation – Specific versus general provision - Held that:- Judgment in Gobind Sugar Mills Ltd. Versus State of Bihar and Others [1999 (8) TMI 761 - SUPREME COURT OF INDIA], Reserve Bank of India versus Peerless General Finance & Investment Co. Ltd. ors. and Vice [1987 (1) TMI 452 - SUPREME COURT] and JK. Cotton Spinning & Weaving Mills Co. Ltd. versus State of Up. [1960 (12) TMI 77 - SUPREME COURT] followed – If in a Statutory Rule or Statutory Notification, there are two expressions used, one in General Terms and the other in special words, under the rules of interpretation, it has to be understood that the special words were not meant to be included in the general expression.
“The rule is, that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.” - Specific governs the general is not an absolute rule but is merely a strong indication of statutory meaning that can be overcome by textual indications that point in the other direction - This rule is particularly applicable where the legislature has enacted comprehensive scheme and has deliberately targeted specific problems with specific solutions - A subject specific provision relating to a specific, defined and descriptable subject is regarded as an exception to and would prevail over a general provision relating to a broad subject.
The item 1E is subject specific provision introduced by an amendment in 1996 - The amendment removed “new cement industries” from the non-eligible Annexure-B and placed it into Annexure-C amongst the eligible industries - It classified the cement units for eligibility of tax exemption into three categories: small, medium and large - The said categories are comprehensive whereby small and medium cement units have been prescribed to have maximum Fixed Capital Investments (FCIs) of ₹ 60/- lakhs and ₹ 5/- crores, respectively and large to be over the FCI of ₹ 5/- crores - The maximum ceiling for large cement units has been purposefully left open and thereby reflects that the intention clearly is to provide for an all-inclusive provision for new cement units so as to avoid any ambiguity in determination of appropriate provision for applicability to new cement units to seek exemption -What is specific has to be seen in contradistinction with the other items/entries - The provision more specific than the other on the same subject would prevail - Here it is subject specific item and therefore as against items 1, 4, 6 and 7, which deal with units of all industries and not only cement, item 1E restricted to only cement units would be a specific and special entry and thus would override the general provision.
The introduction of the subject specific entry vide amendment into general scheme of exemption speaks volumes in respect of intention of the legislature to restrict the benefit to cement industries as available only under Item 1E, which categorically classified them into three as per their FCI - The specific entries being mutually exclusive have been placed so systematically arranged and classified in the Scheme - The construction of provisions must not be divorced from the object of introduction of subject specific provision while retaining other generalized provision that now specifically exclude the new cement industries, which could otherwise fall into its ambit, lest such interpretation would be not ab absurdo (i.e., interpretation avoiding absurd results) - The Company would only be eligible for grant of exemption under Item 1E as a large new cement unit in accordance with its FCI being above ₹ 5/- crores - The judgment and order passed by the High Court set aside and the appeals of the Revenue allowed – Decided against Assessee.
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2014 (3) TMI 904
Demand of service tax - Mandap Keeper and Convention Service - Held that:- Considering the fact that, in appellant's own case, for the previous period, this Tribunal has granted unconditional waiver from pre-deposit of the service tax liability on room charges and also considering the decision of this tribunal in the case of Rambagh Palace Hotels Pvt. Ltd. (2013 (12) TMI 556 - CESTAT NEW DELHI), the appellant has made out a prima facie case for grant of stay. Accordingly, we grant waiver from pre-deposit of the adjudicated liability and stay recovery thereof during the pendency of the appeal - Stay granted.
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2014 (3) TMI 903
Classification of service - Video production agency service - Invocation of extended period of limitation - appellant contended that it has sub-contracted all the services and acted merely as interface between Discovery Asia INC, USA; and video content providers in India - Held that:- With regard to classification of the service provided, we are prima facie of the view that since under the agreement between the Discovery Asia and the petitioner, the obligation of dubbing, editing and executing all necessary acts to customize Discovery Asia programmes in accordance with its directions is that of the petitioner; the rendition of this service is the essence of this contractual obligation; and the outsourcing of this service to third party content providers amounts only to sub-contracting its obligation under the contract. Therefore there appears no escape from the liability to tax for having provided the video production agency service in relation to the video tape production under Section 65(105)(zi) - the case is evenly balanced, both on the classification of the taxable service aspect and on validity of invoking the extended period of limitation - Condition stay granted.
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2014 (3) TMI 902
Waiver of pre-deposit of tax - Membership of Club or Association Service - Mandap Keeper Service - Held that:- Applicant has made out a prima facie case for waiver of pre-deposit in respect of the demand of service tax on the fees paid by members to a "Club or Association" - prima facie, the applicant is liable to pay tax on the "Mandap Keeper Service" used by outsiders. The applicant already paid a sum of Rs.1,11,638/-. Accordingly, we direct the applicant to deposit a further amount of Rs.1,00,000 within a period of six weeks from today - Conditional stay granted.
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2014 (3) TMI 901
Waiver of pre deposit - Manpower Recruitment and Supply Agency Service - Held that:- Commissioner had given a detailed finding that there is no employer employee relationship between the applicant-company and the Japanese company. We have perused the clauses as reproduced in the adjudication order. In the present case, we find that M/s. NSK Ltd. Japan has supplied their employees and rendered service in the joint venture company who is the applicant and both are separate company under the Act. So, the submission of the learned counsel that there is no relation of service provider and client in the joint venture company would be examined after going through the agreement in detail at the time of appeal hearing. The decision of the Hon’ble Supreme Court in the case of Eli Lilly & Co. (2009 (3) TMI 33 - SUPREME COURT ) is in the context of deduction of tax at source under the Income Tax Act. Prima facie, we find that there is a categorical observation of the Commissioner that the applicant paid the amount to M/s. NSK Ltd. Japan for the service rendered by its employees. Hence the applicant failed to make out a prima facie case for waiver of entire amount of tax and penalty along with interest - Conditional stay granted.
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2014 (3) TMI 900
Enforceability of contract - Transportation through the Tiger Reserve - Lifting and transportation of the iron ore fines – Violation u/s 38(v) of the Wildlife (Protection) Act, 1972 as amended in 2006 – Held that:- On March 31, 2010, the PCCF (Wildlife) & Chief Wildlife Warden, Bangalore, specifically stated to the appellant that Bhadra Wildlife Sanctuary was declared as a Tiger Reserve and was required to be maintained as ‘inviolate’ for tiger population, therefore, transportation through the said Tiger Reserve u/s 38(v) of the Wildlife (Protection) Act, 1972 as amended in 2006 was refused - The contract of lifting and transport the iron ore fines became unenforceable and further, the contract is also hit by Section 38(v) - Thus, the object of the contract is forbidden by law - Hence, the contract is unlawful and cannot be given effect to – No need to interfere the High Court order - No merit in the appeal, and the same is dismissed – Decided against appellants.
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