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Showing 361 to 380 of 1234 Records
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2012 (9) TMI 884 - CESTAT NEW DELHI
CENVAT Credit - Whether the appellant would be eligible for cenvat credit in respect of “Sari Guard” and “Mirror Assembly” cleared along with motor cycles - Held that:- “Sari Guard” is an essential safety component of a motor cycles. As regards the “Mirror Assembly” we are of the view of that the same is also a safety component of a motor cycle. As such, prima facie the said items are covered under the definition of ‘Accessories’ to the motorcycles and, therefore, they fall within the definition of ‘input’. That being the case, prima facie the appellant has rightly availed cenvat credit in respect of the excise duty paid on “Sari Guard” and “Mirror Assembly”. Thus we are of the opinion that appellant has been able to make out a prima facie case for waiver of the condition of pre-deposit of duty demand, interest and penalty - Stay granted.
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2012 (9) TMI 883 - CESTAT NEW DELHI
Duty demand - Abatement of duty - Held that:- In case of Pan Masala/Gutkha manufacturing units, the duty liability is required to be discharged under the provisions of Section 3A of the Central Excise Act, 1944 read with PMPM Rules, 2008. According to the provisions of Rule 7 of the PMPM Rules, duty payable by a unit for a particular month shall be calculated by application of the appropriate rate of duty specified in the Notification No. 42/2008-C.E., dated 1-7-2008 to the number of operating packing machine in the factory during the month. In terms of Rule 8 of the PMPM Rules, the number of operating packing machines during a month for the purpose of Rule 7 is to be taken as the maximum number of packing machines installed on any day during the month. However, under Rule 10 of the PMPM Rules, proportionate abatement of duty can be allowed for the period when the entire factory was closed and had not produced or cleared any goods, during a continuous period of 15 days or more, subject to the conditions as specified in this rule.
when during first period of closure, the unit was closed from 10-3-2010 to 1-4-2010 and during second period when it was closed from 8-4-2010 to 1-5-2010, the abatement for the entire period including for 1st April 2010 and 1st May 2010 has been correctly allowed. There is nothing in Rule 10 from which it can be concluded that the period of closure should be apportioned calendar monthwise and then it should be considered for abatement under Rule 10. In our view, the department’s interpretation of Rule 10 is totally incorrect - Decided against Revenue.
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2012 (9) TMI 882 - CESTAT KOLKATA
Waiver of pre deposit - penalty imposed under Rule 25 of Central Excise Rules, 2002 read with Section 11AC of Central Excise Act, 1944 - Held that:- expression “into” denotes “on-going”/”continous” meaning thereby the goods in question i.e. motor vehicles should not be withdrawn from the on-going project. Admittedly, the project is financed by United Nations. The goods are still into the project and are not withdrawn from the project, is also not in dispute. In these circumstances, the applicant is able to make out a prima facie case for total waiver of pre-deposit. Following the case of Tata Motors Ltd. v. CCE & ST, Jamshedpur [2012 (12) TMI 884 - CESTAT, Kolkata] on similar facts and circumstances of the case this Tribunal has granted unconditional stay - Stay granted.
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2012 (9) TMI 881 - CESTAT NEW DELHI
Denial of CENVAT Credit - Sale of factory - Held that:- ER-1 returns showing payment of duty on the final product was being regularly filed by the appellant. Revenue is silent on the payment of duty on the goods manufactured and reflected in the said ER-1. In my views, denial of credit alone without taking into consideration the fact that such credit was used by the appellant for payment of duty on their final product which were got manufactured at Bhiwadi on job work basis is neither just nor proper. The Revenue’s entire case is based upon the sale of factory on 2-11-2004. It may not be out of place to mention here that in spite of sale of factory, appellant continued to hold Central Excise licence for manufacture of goods, which was surrendered only on 31-5-2005. The said fact along with the fact of filing of ER-1 returns and payment of duty on the final product make the appellant entitle to the availment and consequential utilisation of Modvat credit. As such I find no reasons to deny the credit to the appellant - Decided in favour of assessee.
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2012 (9) TMI 880 - CESTAT AHMEDABAD
Restoration of appeal - Held that:- Appellants had challenged our Stay Order before Hon'ble High Court of Gujarat, and their Lordships had not entertained the same and dismissed the Tax appeal. Since the appellant's challenge of our stay order has been dismissed by Hon'ble High Court, we feel that nothing survives as subsequent request made by the appellants does not help to further his case, as, in his case, our order stands upheld by higher judicial forum. We are fortified in our view by the judgment of the Hon'ble High Court of Delhi in the case of Commissioner of Customs vs. Lindt Exports & Ors. [2011 (9) TMI 609 - DELHI HIGH COURT], wherein identical facts were there and the Hon'ble High Court has set-aside the order of the Tribunal, vide which we had restored an appeal, on deposit of the amount which was ordered to be pre-deposited. In our considered view, the judgment of Hon'ble High Court of Delhi which was passed in the year 2012 being directly on the point as is in the facts of this case, hence, is directly applicable - Restoration denied.
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2012 (9) TMI 879 - CESTAT BANGALORE
Restoration of appeal - Non compliance of provisions of Section 35F - Held that:- appellant has paid an amount of Rs.75,000/- on 21/09/2012 in addition to the amount of Rs.50,000/- already paid and noted by the Commissioner(Appeals). The latest payment of Rs.75,000/- is evidenced by G.A.R.-7 receipt produced by the appellant. With this payment, the appellant has, admittedly, predeposited an amount of Rs.1.25 lakhs as against our direction for predeposit of Rs.1 lakh and, therefore, there can be no difficulty for the learned Commissioner (Appeals) to dispose of their appeal (against Order-in-Original) on merits - Therefore, matter remanded back - Decided in favour of assessee.
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2012 (9) TMI 878 - CESTAT NEW DELHI
Confiscation of goods - Imposition of redemption fine - Held that:- Revenue is silent about the respondent’s submission of the factory being closed for many days and the goods being in unpacked condition. Further, it is not the Revenue’s case that the respondent was required to pay any duty on the said goods. The assessee was admittedly a small scale unit availing the benefit of small scale exemption notification. In this scenario I am of the view that the change of excess goods cannot be pressed onto service for imposition of penalty. No infirmity can be found in the impugned order of Commissioner (Appeals) - Decided against Revenue.
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2012 (9) TMI 877 - CESTAT BANGALORE
Waiver of pre deposit - Denial of CENVAT Credit - Proviso to Notification No. 30/2004-C.E., dated 9-7-2004 read with Corrigendum No. 334/3/2004-TRU Part-1, dated 9-7-2004 - Held that:- appellant switched over to the exemption regime on 9-1-2006 and accordingly cleared their final products without payment of duty thereafter. The only condition attached to the exemption was embodied in the aforesaid proviso was to the effect that the exemption was not applicable to the goods in respect of which credit of duty on inputs had been taken under the provisions of the CENVAT Credit Rules 2002. It is not in dispute that the appellant did not avail CENVAT credit on inputs. The Notification did not bar the availment of CENVAT credit on capital goods - prima facie, the appellant has made out a strong case against the demand - Stay granted.
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2012 (9) TMI 876 - CESTAT NEW DELHI
Clandestine removal of goods - whether the statement accepting the shortages can be held to be a conclusive proof of actual shortages - Held that:- Tribunal in the case of Nilesh Steel & Alloys P. Ltd. reported as [2008 (3) TMI 572 - CESTAT, MUMBAI] has held that such shortages detected on eye estimation basis cannot be held to be conclusive proof of clandestine removal. To the same effect is the decision of the Tribunal in the case of UP Alloys P.Ltd. reported as [2007 (3) TMI 439 - CESTAT, NEW DELHI]. It was held that inasmuch as no actual weighment was done in respect of loose sponge iron lying in the factory, shortages cannot be held to be actual. By following the ratio of above decisions as also by observing that the charges of clandestine removal cannot be upheld on mere shortages - Decided in favour of assessee.
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2012 (9) TMI 875 - CESTAT BANGALORE
Compilation of documents - Whether the security offered by the appellant in the form of deposit of title deeds pertaining to the landed property would subserve the revenue’s interest in terms of Section 35F of the Central Excise Act - Held that:- security in any form whatsoever offered by the appellant should be one enforceable against the appellant in the event of their losing their appeal. A bank guarantee is, indisputably, one such enforceable security - The deponent, who has verified and filed the appeal, should categorically undertake that he has no objection to the respondent enforcing this security against the appellant in the event of the latter losing the case. We, therefore, expect the deponent to file such undertaking in unequivocal terms within a reasonable time. They shall file this undertaking with the respondent so as to enable him in due course to enforce the security which is being furnished in the form of title deeds by the appellant, in the event of the appellant losing this appeal. The appellant shall do this without any delay, at any rate before 27-9-2012, and report compliance to this Bench on 27-9-2012. The counsel for the appellant shall permit the learned Special Consultant for the respondent to peruse the relevant documents in the meanwhile - Decided in favour of assessee.
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2012 (9) TMI 874 - CESTAT NEW DELHI
Benefit of small scale exemption notification - Instead of availing the captive exemption Notification No. 10/96-C.E., the respondent’s availed the benefit of credit on the raw material used for the manufactured polyjars and paid duty on the polyjars, took credit of the said duty and utilized it for further payment of duty on the final product - Held that:- Admittedly, in terms of Notification No. 9/2002-C.E., polyjars is one of the specified items in the Annexure to the said notification. As such, the appellant was within his rights to opt for any one of the two notifications. The benefit of captive consumption Notification No. 10/1996-C.E. cannot be thrusted upon the assessee. The period involved in the present case is around 2002 and there are number of judgments laying down that when there is an exemption Notification, the assessee cannot be compelled to avail the same and he has an option to avail or to pay duty on the goods manufactured by them - Decided against Revenue.
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2012 (9) TMI 873 - CESTAT NEW DELHI
Duty demand - Benefit of Exemption Notification No. 67/95-C.E. - Violation of Conditions - Held that:- In this case none of the conditions of Notification are satisfied, as the exempt goods have simply been cleared into Domestic Tariff Area, by availing full duty exemption - Another plea of the appellants is that even if the duty is charged on the dyed yarn, the same would be admissible as Cenvat credit as dyed yarn was used for manufacture of cotton rugs which had been exported out of India. We do not agree with this plea of the Appellants, as this plea would be acceptable only when the exports of final products had been made under bond in terms of the provisions of the Rule 19 of Central Excise Rules, 2002. In this case the cotton rugs have been cleared into Domestic Tariff area by availing full duty exemption and it is not the claim of the Appellants that the same had been exported under bond directly from the factory. The goods initially cleared from the factory for home consumption and thereafter exported out of India cannot be equated with the goods exported directly from the factory under bond in terms of provision of Rule 19 of Central Excise Rules. In view of this, the Appellant’s plea that if the duty is charged on dyed cotton yarn its Cenvat credit would be available to the Appellant, which would be refundable to them under Rule 5 of the Cenvat Credit Rules, is not acceptable -
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2012 (9) TMI 872 - CESTAT MUMBAI
Duty demand - Shortage in inputs - During investigation of premises of Assessee on persuasion of the department, the Assessee paid a sum of Rs. 3,67,500 - After investigation was complete, the respondent filed a refund claim - Commissioner (Appeals) held that shortage found in the factory at the time of investigation are none other than process loss and sanctioned refund claim - Held that:- The variations in shortage have not been properly investigated by the Revenue. There is no evidence to substantiate that these raw materials had been cleared clandestinely. On the contrary there appears force in Appellants’ contention that there was processing loss during the manufacturing of final product. Further the appellants invited the attention towards photocopy of the relevant pages of Encyclopaedia of polymers Science and Engineering (Vol. 4). In support of their contention that polypropylene was susceptible to losses, degradation when subjected to heating. Thus cent percent recovery of Polypropylene was not possible in making P.P. Films therefrom. In any case the percentage loss of raw material consumption has been of the order of 0.415%, 0.223% and 1.057% in the year 1993-94, 1994-95 & 1995-96 respectively. The total percentage loss in the three financial years has been only 0.612% i.e. even less than 1% which is quite insignificant.
Appellants have been declaring such losses of raw material in the manufacturing process in their annual declarations filed in 3CD Forms to the Income Tax authorities during the years earlier to and after to the subject years. No demand of modvat credit involved on such loss of raw material consumption has since been raised by the department in respect of 3CD Form submitted by the Appellants in the years subsequent to the subject years. This point also goes in the Appellants’ favour. The Appellants have also explained the aspect of processing loss as deposed in the affidavit sworn on 25-9-2001 of Shri I.R. Balanagendran, the Executive (RND) of the Appellants. Attention is also invited attention towards the Board’s Circulars/letters dated 17-10-1986 and 15-1-1988 wherein the admissibility of modvat credit on the melting loss/Slag etc. has been clarified. In view of these Circulars it can be safely inferred that the credit of duty on inputs cannot be denied on the ground that the part of the input was contained in the waste and scrap which might even exempted from excise duty. Therefore, no modvat credit could have been disallowed to the appellants if the said credit was attributable to the inputs lost in the manufacturing process - Decided against Revenue.
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2012 (9) TMI 871 - CESTAT BANGALORE
Duty demand - Whether, for the period from April 1995 to March 1999, they are liable to pay duty of Rs.31,25,625/- on aluminium scrap which was generated during the process of manufacture of their final product and subsequently used by M/s. Bharath Foundry and Engineering Works (BFEW for short) in the manufacture of ingots in the assessee’s factory - Held that:- billets/ingots were cleared on payment of duty and, if that be so, the input viz., aluminium scrap generated in the course of manufacture of final products in the factory was not chargeable to duty of excise by virtue of Notification No.67/95-CE dated 16.3.95. In this context, it is pertinent to note that the appellant had filed a classification list in respect of aluminium scrap classifying it under sub-heading 7602.00 both for home consumption and for captive consumption, a fact clearly acknowledged in the Commissioner’s order. That classification list also claimed the benefit of the above notification.
appellant has also made out a formidable case against the demand of duty on the ground of limitation. The impugned demand is for the period from April 1995 to March 1999 and the same was raised in show-cause notice issued on 26.4.2000. The show-cause notice invoked the proviso to subsection (1) of Section 11A of the Central Excise Act but did not allege fraud, collusion or suppression of facts and the like. The notice alleged that certain provisions of the Central Excise Rules were contravened by the assessee, but even in this context, no intent to evade payment of duty was attributed to the assessee. In other words, the show-cause notice did not allege any of the ingredients of the proviso to Section 11A(1) of the Act. It appears, the department could not allege anything of the above sort against the assessee who was forthright in declaring aluminium scrap as one of the products in the classification list effective from 16.3.1995 and claiming the benefit of Notification No.67/95-CE in respect of captive consumption of the scrap - Decided in favour of assessee.
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2012 (9) TMI 870 - CESTAT NEW DELHI
Remission of duty - Destruction of raw material/packing material during flood on 3-8-2004 - Whether the appellant is required to reverse the Cenvat credit availed on the inputs which were also destroyed in the said flood - Held that:- reversal of credit in respect of the inputs which were lying in the appellants’ factory unutilised and got destroyed in the fire, it is seen that the said inputs were admittedly neither used in the manufacture of the final product, nor even issued for the manufacture. They were lying as such in the appellants’ premises. The Modvat credit on the inputs is available only when the inputs are used in or in relation to the manufacture of the final product. In the present case they cannot even be said to have been used in relation to the manufacture of the final product, or can be said to have been destroyed during the manufacture of the final product, inasmuch as the same were admittedly not even issued for the manufacture.
Appellant is required to reverse the Cenvat credit in respect of inputs/packing material, which were lying ‘as such’ in the factory and got destroyed in that condition without being issued for further work. As such by following the Tribunal’s decision in the case of Biopac India Corpn. [2007 (11) TMI 213 - CESTAT AHMEDABAD] as also in the case of Golden Polymex and Paras Foam Industries referred (2003 (4) TMI 191 - CEGAT, KOLKATA) - Decided against assessee.
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2012 (9) TMI 869 - CESTAT BANGALORE
Denial of CENVAT credit - Goods Transport Agency Service - Intrepretation of input service - Held that:- outward transportation of goods from the factory (place of removal) was very much within the scope of the definition of input service given under Rule 2(l) as this rule stood prior to 01/04/2008. The period of dispute in the present case is also prior to 01/04/2008 - Following decision of Commissioner vs. ABB Ltd. [2011 (3) TMI 248 - KARNATAKA HIGH COURT] - Decided in favour of assessee.
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2012 (9) TMI 868 - CESTAT BANGALORE
Valuation - Whether turnover tax and interest on receivables were liable to be included in the assessable value of the goods cleared by the assessee during the period from July 1998 to September 1999 - Held that:- Following decision of assessee's own previous case [2007 (6) TMI 45 - CESTAT,CHENNAI] - Decided against Revenue.
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2012 (9) TMI 867 - CESTAT NEW DELHI
Condotionation of delay - Held that:- The expression ‘sufficient cause’ stands interpreted by various decisions of the judicial as also quasi judicial forums. The same has to be understood and applied for a reasonable, pragmatic, practical and liberal manner, depending upon the facts in each case. I am aware that the said expression ‘sufficient cause’ is required to be interpreted in such a manner so as to advance substantial justice. At the same time liberal attitude is not to be adopted in case where the delays are deliberate acts, want of bona fide or negligence on the part of the appellant. A law of limitation cannot be held redundant, by allowing the concessions, without appreciating the reasons for such delays. The appellants reason itself shows that the proprietor was advised rest for the period of 15 days. There is no explanation forthcoming on record as to why even after the said period of 15 days was over, the appeal could not be filed within a reasonable period and it took a period of further six months for the appellant to file the appeal. I find no justifiable reason to condone the delay - Condonation denied.
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2012 (9) TMI 866 - CESTAT CHENNAI
CENVAT CRedit - as per Rule 4A(2) of the Service Tax Rules, 1994, the name, address and registration number of the person providing input service and the serial number and date of invoice, bill, or as the case may be, challan issued under sub-rule (1) were not mentioned in the invoices of input service distributor - Held that:- during the course of adjudication, the respondents have provided all such details as annexure to the invoice before the adjudicating authority. As the whole record of annexure is very bulky, same was not filed along with the returns filed by the respondents. But in future, the respondent has undertaken that along with invoice of input service distributor, they will file annexure showing details of registration number of input service provider etc. as required under Rule 4A (2) of Service Tax Rules, 1994 - No infirmity in impugned order - Decided against Revenue.
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2012 (9) TMI 865 - CESTAT BANGALORE
Waiver of pre deposit - Benefit of Notification No. 214/86-C.E., dated 25-3-1986 - CENVAT Credit - Held that:- Considering the fervent plea of financial hardships raised by the learned counsel albeit without documentary evidence, we take the view that the amount of Rs. 15 lakhs deposited by the assessee-appellant would suffice the purpose of Section 35 of the Central Excise Act. However, in the absence of plea of financial hardships by other appellants, we are inclined to direct reasonable pre-deposits - Conditional pre deposit granted.
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