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Case Laws
Showing 361 to 380 of 1515 Records
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2016 (1) TMI 1155
Denial of CENVAT credit - provider of output service - utilisation of services of other dealer for labour cost in servicing of vehicles sold by appellant - Rule 2(1) of CENVAT Credit Rules, 2004 - Held that: - there can be no doubt that appellant renders authorized service station service and business auxiliary service on behalf of M/s Maruti Udyog Ltd. It is therefore, a provider of output service. In the course of discharge of this output service which includes free servicing, it is quite probable that the servicing may be delegated to another dealer. That it was performed elsewhere does not alter the factum of usage of another service-provider for supplying a service contracted to be provided to a recipient in which the recipient of service is not obliged to meet the costs. Such costs met by appellant are expenditure towards service procured to provide an output service - the decision in the case of Coca Cola India Pvt Ltd v. Commissioner of Central Excise, Pune-III [2009 (8) TMI 50 - BOMBAY HIGH COURT] relied upon where it was held that the appellant is entitled to claim CENVAT credit of tax paid on invoices raised by co-dealers - credit allowed - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1154
Denial of CENVAT credit - air travel agents service - reliance placed in the decision of the case of Semco Electrical P. Ltd. [2009 (12) TMI 143 - CESTAT, MUMBAI] where it was held that the appellant was entitled to the Cenvat Credit availed on the services which were used in relation to the manufacture of final product or used in relation to the business activity and in the instant case the service used by the appellant were in relation to the business activity. Thus, the appellant were entitled to refund of service tax - Held that: - The above decision of the Tribunal applies to the facts of the case. In view of the above cited decision, the impugned order is liable to be set aside - appeal allowed - credit allowed - decided in favor of appellant.
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2016 (1) TMI 1153
Demand - Classification - Povidone Iodine IP/USP - Penalty - Period of limitation - Held that: - Chemical Examiner report is stating that the product is chemically modified polymer; appellant did not challenge the Chemical Examiner’s report - the product which is imported is classified under chapter no. 39, same product manufactured in India also merits to be classified under chapter 39 only and not under chapter 29 as claimed by appellant.
when the appellant had field classification list seeking the classification of the products in a particular chapter i.e. chapter no. 29, on the basis of earlier approved classification list, revenue authorities cannot allege suppression or mis-statement with the intention to evade duty, in as much, when an assessee has followed the earlier classification lists as were approved by the department and discharged duty, in our view, show cause notice dated 12-01-1999 is time barred for demanding differential duty for the period May, 1995 to October 1997, as there is no dispute that the appellant had filed the classification lists to the authorities.
Show cause notice dated 12.01.1999 is blatantly time barred, as during the relevant period show cause notice has to be issued within 6 month for demand of duty with the limitation period, for invoking the extended period, there has to be a positive evidence of misstatement and suppression of the facts - Appeal allowed.
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2016 (1) TMI 1152
Refund - Notification No. 6/2002 dated 6.9.2002 - Held that: - certificate from the Development Commissioner, Gulbarga, which certified that the above said pipes are used actually for delivery of water from source to the plant and from there to the storage facility - Commissioner (Appeals) in so far as it claims that the certificate does not specify where the pipes are used, are incorrect and therefore, on merits the appellants are entitled to the benefit of Notification - A copy of the letter has also been provided where it is seen that the duty amount has not been paid by Maloo Construction to the appellant - Appeal allowed.
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2016 (1) TMI 1151
Transitional provision - Cenvat credit - Demand - Rule 11(1) of the Cenvat Credit Rules, 2004 - Notification 23/2004-CE - Penalty - Held that: - the service tax credit of ₹ 32,820/- which was lying unutilized in their cenvat account, as per Rule 11(1) of the Cenvat Credit Rules, 2004 as also Notification No.23/2004-CE, they are allowed to utilize the same and accordingly the appellant has utilized the same in accordance with these rules and there is no illegality in the availment of cenvat credit lying unutilized in their account before 10.9.2004 - Appeal allowed.
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2016 (1) TMI 1150
Appeal monetary limit - Held that: - In terms of Government Litigation Policy Vide F. No. 390/MISC/163/2010/JC dated 17.08.2011 Revenue is not supposed to file appeal against order of the Commissioner (Appeals) if amount involved is less than ₹ 5 Lakhs - the present appeal involving amount ₹ 1,78,445/-, which is less than threshold limit of ₹ 5 lakhs - Appeal dismissed.
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2016 (1) TMI 1149
Maintainability of appeal - monetary limit for filing appeal - as per Government Litigation Policy Vide F. No. 390/MISC/163/2010/JC dated 17.08.2011 Revenue is not supposed to file appeal against order of the Commissioner (Appeals) if amount involved is less than ₹ 5 Lakhs - whether the monetory limit prescribed under circular shall also be applicable in the appeal which is filed prior to issuance of aforesaid litigation of policy?
Held that: - The Hon’ble High Court of Karnataka judgment in the case of Commissioner of C.Ex. Bangalore-III V/s Presscom Products [2011 (3) TMI 726 - KARNATAKA HIGH COURT] and Hon’ble High Court Gujarat judgments- Commissioner of C.Ex. & Cus., Surat-I V/s Shreenath Fabrics [2012 (8) TMI 865 - GUJARAT HIGH COURT] and Commissioner of C.Ex. & Cus., Vadodara-I V/s Pharmanza Herbal Pvt. Ltd. [2014 (9) TMI 330 - GUJARAT HIGH COURT] has held that the monitory limit prescribed under circular shall also be applicable in the appeal which is filed prior to issuance of aforesaid litigation of policy - the present appeal involving amount ₹ 51,529/-, which is less than threshold limit of ₹ 5 lakhs not maintainable - appeal dismissed - decided against Revenue.
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2016 (1) TMI 1148
Remission of duty - Reversal of Cenvat credit - loss by storm - Registration surrendered online - Held that: - the revenue have not disputed the event of storm on 17/4/11. Secondly, the loss by storm have been surveyed by National Insurance Company through their surveyors and thus the details of loss have been verified and are unavailable on record - the remission claim under Rule 21 cannot be rejected only on the ground that the appellant have approached the revenue after much delay of about 20 months
The revenue had some information about disturbance by storm in the appellant's unit, resulting into disruption of production et cetera - the revenue had some information about disturbance by storm in the appellant's unit, resulting into disruption of production et cetera - Appeal allowed by way of remand.
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2016 (1) TMI 1147
Confiscation - Re-export - Penalty - Held that: - the medicines had a residual shelf life that was below the threshold prescribed in the proviso to Rule 31 of Drugs and Cosmetics Rules, 1945 - the goods have already been sent out of the country and that the goods did meet the norms at the time of shipment - Appeal allowed
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2016 (1) TMI 1146
Valuation(Customs) - Enhancement of value - Confiscation and penalty - Curative Petitions - relevant documents - no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra v. Ashok Hurra & Another, [2002 (4) TMI 889 - SUPREME COURT] - the Curative Petitions dismissed.
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2016 (1) TMI 1145
Maintainability - Whether the writ petition is maintainable - Offices of the writ petitioner is situated in Orissa and major part of the cause of action arose outside the jurisdiction of the Calcutta High Court - Apex dismissed the petition against the order passed in the case of Commissioner of Central Excise, Customs & Service Tax, Bhubaneshwar-I Versus M/s. Vedanta Aluminium Limited & Ors. [2016 (4) TMI 932 - CALCUTTA HIGH COURT] - petition dismissed.
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2016 (1) TMI 1144
Jurisdiction of the DRI - Propriety of the Central Board of Excise and Customs to issue a notification to deliberately negate the effect of a considered judgment of the Supreme Court - Held that: - it is no longer open to the petitioners to challenge any aspect of the impugned show cause notice of June 3, 2015, at least prior to issuing a reply thereto. The matters sought to be urged herein were or ought to have urged in course of the previous petition and to the extent they were not urged or not covered by the order dated October 6, 2015 cannot be reopened at this stage - petition dismissed - decided against petitioner.
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2016 (1) TMI 1143
Confiscation of goods with an option to pay redemption fine and redeem the goods - imposition of penalty Prohibited goods - wide band zinc coated steel - permission to import subject to fulfillment of certain conditions - galvanized steel sheets - Bureau of Indian Standards - conformity of the imports with standards prescribed for domestic industry - Held that: - there is no conceivable threat to public safety by allowing the goods into the country. The goods, though violative of the Foreign Trade Policy, are not prohibited for import. All that is required to render them compliant is the BIS mark or possession of prescribed certification. Such goods have been allowed to be imported on exemption granted by the Bureau. Therefore, the contravention could have been overcome by certification of the manufacturer abroad or by obtaining of exemption. The advantage vis-`-vis similar importers or manufacturers in India is merely the benefit of cost.
In the normal process of adjudication of offences, confiscation for contraventions is visited with imposition of fines that seek to negate the unfair cost advantage subject to there being no potential harm to the safety and security of the citizenry, the economy or the State. Confiscation and redemption, thereby, legitimize the contravention in imports and render the goods to be licit. It confers legitimacy even where, and particularly when, the statutorily prescribed approving agencies are not empowered to approve retrospectively. Imposition of conditions, such as re-export, does not sit well with such regularization through the adjudication process. Failure on the part of the importer to exercise the option of redemption would place the burden of disposal on the Central Government which cannot re-export the goods and would have to sell only within India subject to the restrictions in the Order supra; there is no justification to accord a harsher treatment after redemption of the goods. Allowing redemption subject to re-export is not warranted, is unnecessary and is not logically sound.
Impugned order is modified to the extent of setting aside the condition of re-export upon redemption. Appeal is accordingly disposed off by allowing redemption on payment of fine without any conditions whatsoever.
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2016 (1) TMI 1142
Denial of CENVAT credit - MS Round, MS Pipe/Plate/Beam/Channel falling under Chapter 72/73 - SSI exemption availed - whether denial of CENVAT credit justified on the ground that these are not capital goods and credit as inputs for them is not available as the appellants are availing SSI exemption? - Held that: - The admitted facts of the case are that the MS Rounds and other MS products on which credit was availed by the appellant were used in the manufacture/fabrication of moulds by/on behalf of the appellant. The said moulds are admittedly used by the appellant in their manufacturing process. Given this factual position and applying the “user test” in terms of Hon’ble Supreme Court’s decision in CCE, Jaipur v. Rajasthan Spinning & Weaving Mills Ltd. [2010 (7) TMI 12 - SUPREME COURT OF INDIA], the appellants are eligible for Cenvat credit on these items - denial of credit not justified - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1141
Demand of interest for leviability of duty for full period - availing of abatement by its own - manufacture of tobacco - Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010 - operation discontinued and again stared after some time - whether demand of interest valid on the ground that the appellants availed abatement on their own? Had the appellants followed the proper procedure, the full amount as confirmed in the original order would have been paid and later, abatement would have been granted as per the actual dates of operation - Held that: - The reason given for confirming the interest is that the due date for payment of duty in terms of the above mentioned Rules is 5th of same month. The same is stipulated in Rule 9. The 3rd proviso to Rule 9 gives an exception that in case of increase in the number of operating machines in the factory during the month on account of addition or installation of packing machines, the differential duty amount, if any, shall be paid by the 5th day of the following month.
During the period in which the due date falls, there is no manufacturing operation by the appellant. Hence, it follows that no duty could be determined and paid by them by 5th of the same month. The machines were unsealed and allowed for operation much later and such situation will be covered by the 3rd proviso of Rule 9 - decision in the case of Trimurti Fragrance Pvt. Ltd. Versus Commissioner of Central Excise, Delhi-II [2016 (2) TMI 718 - CESTAT NEW DELHI] relied upon.
Demand of interest fails - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1140
MRP values - enhancement in value - different MRP values to two different bills of entries - the values being $ 6 and $ 7.5 - when the declared value is $ 6 in one bill of entry, is there any necessity to create anomaly to the other unless there is any cogent evidence to the contrary? - Held that: - Once the declared value in one bill of entry is acceptable, there is no warrant in law to penalise the appellant adopting a different MRP for the other Bill of entry when goods are same and import took place at the same time. So far as the redemption fine is concerned, when one bill of entries was agreed to be enhanced to $ 6, the other declared value at $ 4.5 definitely is suppression of the assessable value. Therefore, the redemption fine imposed does not call for interference.
Penalty of ₹ 20,000/- imposed - appeal allowed - decided partly in favor of appellant.
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2016 (1) TMI 1139
Refund of amounts made to the NPPA - Tribunal held that the refund of amounts made to the NPPA is an amount which is hit by explanation 1 to Section 37 of the Act? - Held that:- As the explanation 1 to Section 37 of the Act was not in the statute book during the relevant Assessment Year.
Registry is directed to communicate a copy of this order to the Tribunal. This would enable the Tribunal to keep the papers and proceedings relating to the present appeal available, to be produced when sought for by the Court.
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2016 (1) TMI 1138
Denial of benefit of exemption Notification No. 64/95-C.E., dated 16-3-1995 against its Sl. No. 21 - goods supplied for use in construction of warships of Indian Navy - certificate from the Competent Authority of Indian Navy - the decision in the case of Leader Engineering Works v. CCEX [2006 (2) TMI 193 - SUPREME COURT OF INDIA] referred - Held that: - Hon’ble Apex Court in the case of Leader Engineering Works was considering the goods which were supplied as stores for consumption on board of ship and they were supplied to ship builders and the entry considered was against Sl. No. 3 of the subject notification. Therefore, the facts in the case of Leader Engineering Works are definitely different than the facts on record of these appeals and the case not applicable.
Circuit breakers and other electrical goods were distinctly supplied for use in construction of warship of Indian Navy only. In this regard, the appellant has got the certificate from the Competent Authority namely Rear Admiral of Indian Navy which is the second condition of the Notification against Sl. No. 21. In this Notification, it is nowhere mentioned that goods were to be directly supplied to Indian Navy. When the goods are being supplied to MDL which was using them for construction of warships of Indian Navy, it is very clear that conditions of the Notification against Sl. No. 21 have been complied with and the subject goods are entitled to the benefit of subject notification namely 64/95-C.E., dated 16-3-1995 - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1137
Valuation - rejection of transaction value - the appellant's own case [2009 (10) TMI 733 - CESTAT MUMBAI] referred - Held that: - for the like quantity, the imports made by the same appellant, the value was in dispute which is decided by this bench as cited in the appellant's case. The bench has come to a conclusion that declared value in the appellant’s case needs to be accepted as the quantity imported in that case was 40 metric tonnes which is similar to the quantity imported in this appeal.
The first appellate authority in remand proceedings has recorded that from the details of contemporaneous imports during the relevant period, the price declared by the appellants was the lowest price at the same time there are no details indicated in the impugned order as to the quantity of the goods imported and from the country where the said goods originated. In the absence of any such details, it cannot be held that the contemporaneous values being higher, the transaction value needs to be rejected - transaction value declared by the appellants is correct - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1136
Right to information - public interest litigation - the appellate authority submits except forwarding copy of the representation given to the Excellency Governor of West Bengal no pertinent materials have been furnished in accordance with the procedure - Held that:- To the extent of section 4(1)(b) there is an obligation on the respondent authorities to put it on the website the details contained in sub-Section (b) of Section 4(1). It is also pertinent to mention that if such website is not available, it is open to the applicant to make an application seeking specific details and not a general application. If such information which is required to be maintained in registers and official records is asked, the authorities are bound to furnish such information. If information is not furnished then an appeal can also be filed under the enactment in accordance with the procedure.
In the view of the matter, we dispose of the writ petition directing the petitioner to approach the authorities concerned in proper application seeking definite details and not an abstract application. We also make it clear that respondent authorities are under an obligation so far as the Section 4(1)(b) to create a website and furnish the details as envisaged under Section 4(1)(b) of the Act within the time frame.
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