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Showing 421 to 440 of 2364 Records
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2018 (7) TMI 1946
Non-payment of Central Excise Duty - biscuits valuing upto ₹ 100/- per kg. - It is the case of the appellant that they were under the bonafide belief that biscuits in packages valued upto ₹ 100/- per kg. were exempted from payment of Central Excise duty - penalty - HELD THAT:- During the period from 01.04.2007 to 30.04.2007, the appellant had paid the duty on the value of the goods up to ₹ 100/- per kg.. But the fact remains that during that period, the exemption was up to the slab of ₹ 50/- per kg.. This resulted in lesser payment of duty.
However, appellant paid the entire amount of differential duty along with interest. Since the goods were cleared under Central Excise Invoices,there was no question of suppression of facts or willful mis-statement with an intent to evade the payment of duty. Thus, the penalty imposed under Section 11AC is not sustainable and the same is set aside.
Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1945
Reverse Charge mechanism - GTA Service - abatement of 75% in terms of N/N. 32/2004ST dated 03.12.2004 - HELD THAT:- The issue is decided in the case of M/S. INDIAN OIL CORPORATION LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BOLPUR AND CCE & ST, PATNA [2015 (1) TMI 1258 - CESTAT KOLKATA] , where it was held that the certificates given by the GTA on their letter-heads has been held to be sufficient and the department cannot insist that such certificate should be on each consignment note.
Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1944
Penalty u/s 114 of CA, 1962 - It is alleged that the appellant had abetted/colluded with the exporter, M/s Preetam Marketing Ltd., by contravening the provisions of the Customs Act, 1962 and also failed to discharge duty properly as laid down under the Customs Act, 1962 - HELD THAT:- The facts and circumstances of the present cases are squarely covered by the decision of the Tribunal in the case of Suvasis Banerjee & Others Vs. Commr. of Customs (Prev.), West Bengal [2016 (8) TMI 874 - CESTAT KOLKATA], where it was held that provisions of Sec 155(2) of the Customs Act 1962 were not complied with before initiating action against the appellants - penalty set aside - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1943
Issues: Application for withdrawal of appeal challenging Order-in-Appeal dated 28.07.2016 passed by Ld. Commissioner (Appeals) on grounds of remand and quantification of demand.
Analysis:
1. The appellant had filed an appeal challenging the Order-in-Appeal dated 28.07.2016 passed by the Ld. Commissioner (Appeals). The appellant contended that the Ld. Commissioner (Appeal) remanded the matter to the adjudicating authority for re-quantification of demand without considering their contention that part of the demand was covered by previous Show Cause Notices and part of it had already been paid by them. The appellant further mentioned that the Hon'ble CESTAT had previously held that since there was no quantification of duty and penalty amount and the matter was remanded to the adjudicating authority, the stay petition was rejected. The adjudicating authority, complying with the remand direction, upheld the demand, leading the appellant to file an appeal before the Ld. Commissioner (Appeal) who, in the second round of litigation, reduced the demand to Rs. 4,34,108/- along with interest and equivalent penalty under Section 78 of the Act. The Ld. Commissioner (Appeal) also appropriated the amount of Rs. 2,00,900/- deposited by the Appellant against the said demand.
2. The appellant accepted the Order-in-Appeal dated 28.07.2016 passed by the Ld. Commissioner (Appeal) and deposited the service tax, interest, and penalty accordingly. Consequently, the appellant submitted that the appeal filed before the Hon'ble Tribunal had become infructuous and requested permission to withdraw the appeal. Following the submissions made by the appellant, the appeal was dismissed as withdrawn.
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2018 (7) TMI 1942
Classification of services - site preparation services or mining services? - appellants entered into an agreement with M/s Bisra Stone Lime Company Ltd. on 13.11.2001 for the purposes of raising of limestone - HELD THAT:- The agreed composite rate as per the agreement between both the parties to the contract for all the activities done by the appellants and no separate break-up is available either in the contract or in the bills raised. In view of the facts on record, it cannot be said that the appellant is mainly undertaking site preparation and not the activities relating to mining of limestone is done. It can also not be said that the site preparation is the essential character of the composite services rendered by the appellants.
Service tax on “site preparation services” can be levied if there is a service contract simplicitor to that effect. However, once the contract is a composite contract for the entire activities from site formation to segregation to boulders then the same has to be charged as a separate service under the category of “mining services”, which was made chargeable to service tax w.e.f. 01.06.2007. Such operation under a composite contract cannot be treated as “site formation” before 01.06.2007.
Appeal allowed decided in favor of appellant.
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2018 (7) TMI 1941
Works contract services - interior contracting work on the basis of specific job/work orders awarded by its clients - composition scheme - HELD THAT:- The Appellant is duly registered as a works contractor under the VAT laws and discharged VAT on the gross receipts as evident from Quarterly Sales Tax Returns and the VAT Assessment Orders for the relevant period.
The work orders enclosed by the Appellant as part of the Paper Book and the bills raised against them proves it beyond any element of doubt that these were indivisible composite work orders involving Therefore, in essence a composite works contract involving supply of both goods and services could not be vivisected for imposition supply of both goods and services. The Appellant intended to seek registration as a works contract service provider only, as evident from the application for STC Code filed alongwith the application for registration on 30 May 2007 coupled with the fact that even after the grant of registration under CICS, the Appellant was discharging service tax at the rate of 2% under the works contract composition scheme for payment of tax rules - no negative inferences can be drawn from the fact that registration was initially granted to the Appellant under the taxable category “Commercial or Industrial Construction Services.
it is well settled that there is estoppel in law and the person cannot be saddled with a statutory liability which was never there on account of an inadvertent mistake committed by such person. We observe that the levy of VAT and service tax are mutually exclusive - thus, service tax cannot be demanded on the value of the works contract which has already suffered VAT.
Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1940
CENVAT Credit - capital goods - denial on the ground that the capital goods in question, being oxygen plant, were leased to the appellant by Praxair India Ltd. - contravention of Rule 4(3) of the Cenvat Credit Rules, 2002 - HELD THAT:- The appellant acquired the possession of the equipments under lease agreement and that operation and maintenance of the said plant by Praxair was on payment of agreed lease rent and operation and maintenance charges by the appellant to it are clear. The documents on record also evidence that the oxygen produced at the said plant was solely and exclusively captively used in the factory by the appellant for manufacture of dutiable final products.
The issue is no longer res integra. It has been held that ownership is irrelevant for the purpose of availing CENVAT Credit under the Cenvat Credit Rules.
Hon’ble Bombay High Court in the case of CCE Vs. Modernova Plastyles Pvt. Ltd.,[2015 (6) TMI 154 - BOMBAY HIGH COURT] held that for taking credit of duty paid on capital goods (moulds) it would not be necessary that capital goods shall be owned by the assessee or those shall be acquired by finance from financing agency and denial of credit based on such ground is unsustainable.
The appellant had correctly availed cenvat credit in respect of the duty paid on the capital goods involved and their entitlement to such CENVAT Credit cannot be denied - Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1939
Demand of Interest u/r 14 read with Section 11AB of the Central Excise Act - excess credit availed was suo moto detected and reversed by Appellant even prior to utilization - HELD THAT:- Larger Bench of the Tribunal in the case of J.K. TYRE & INDUSTRIES LTD. VERSUS ASST. COMMR. OF C. EX., MYSORE [2016 (11) TMI 911 - CESTAT BANGALORE] held that on account of wrong availment of cenvat credit, interest is not payable, if reversed before utilization.
The demand of interest on unutilized CENVAT Credit cannot be sustained - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1938
Clandestine removal - clearance of prime quality goods in the garb of second grade and defective quality - time limitation - HELD THAT:- The Commisssionerate has been re-organised by bifurcation of Shillong Commissionerate. We find that the files have been transferred to Dibrugarh Commissionerate. There is a possibility that some files might have been misplaced during such transfer - no purpose will be served by going into the dispute as to whether all relevant documents have been provided to the Appellant or not.
Upon consideration of the submissions made, we are inclined to grant a final opportunity to the Appellant to file reply to the Show Cause Notice in the interest of justice - Appeal disposed off.
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2018 (7) TMI 1937
Valuation - inter unit transfer of the goods - applicability of Rule 8 of the Valuation Rule or under any provision of Section 4 (a) of the Act - HELD THAT:- In the case of ISPAT INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., RAIGAD [2007 (2) TMI 5 - CESTAT, MUMBAI], it was held that the Rule 8 of the Central Excise Valuation Rule is applicable only in case where the entire production is being transfer to their sister units.
There is no sale to the independent buyers. Where there is the sale to the independent buyers the Valuation is required to be confirmed under the provisions of the Section 4 (a) of the Central Excise Act and not under valuation Rule.
The issue has been resolved by the decision of Larger Bench of the Tribunal which has been confirmed by the Supreme Court, and therefore, is binding on the Adjudicating Authority. This aspect has not been considered ignorantly by the Adjudicating Authority.
Penalty - HELD THAT:- The assessee has paid the duty only on the account of fact the payment of duty by the first unit is available as the Cenvat Credit to the other unit and emerging into the Revenue Neutral situation. In such a case there is no scope of payment of any imposition of any penalty under Section 11AC of the Act or interest under 11AB of the Act.
Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1936
Levy of penalty u/s 272A(2)(k) - late filing of the quarterly returns - introduction of E-TDS filing - as explained before the CIT (A) that the accounting staff of the assessee were not conversant with the newly introduced procedures and that is the reason why the delay occurred which was rejected - HELD THAT:- CIT (A) acknowledged the fact that in the F.Y. 2005-06 filing of e-TDS return was introduced and there was a change from filing annual returns to quarterly return. In respect of the first quarter also there occurred some delay. It is, therefore, clear that with the introduction of the e-TDS return filing and change from the filing of annual returns to quarterly returns the delay was caused.
There is nothing unacceptable in the explanation of the assessee that the cause of delay was the non-acquaintance of the staff with the newly introduced procedures. The violation in this respect is a venial breach of law and does not attract penalty proceedings in the very first year of introduction of the new procedures. We, therefore, delete the addition. - Decided in favour of assessee.
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2018 (7) TMI 1935
Valuation - allowability of trade discounts - HELD THAT:- The Hon’ble Supreme Court in M/S. PUROLATOR INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI – III [2015 (8) TMI 1014 - SUPREME COURT] has held that cash and volume discounts stipulated in agreement between assessee and buyers known at or prior to clearance of the goods is to be deducted from sale price in order to arrive at value of excisable goods and that there is no change in the legal position after amendment of Sec.4 of C.Ex Act - the appellant has rightly availed abatement of the discounts involved and the Commissioner has erred in disallowing the same - the demand of duty and interest confirmed and penalties imposed upon the appellant are unsustainable.
Whether the discounts were known to the Department as well as to the buyers before removal of finished goods? - HELD THAT:- It is recorded by the Commissioner himself in the order that the discount and the nature of discounts had been duly disclosed by the appellant to all concerned including the department and the price declarations containing the respective percentage of such discounts, have also been duly filed. It is also seen that abatements have been claimed by the appellant in respect of each of the discounts - issue decided in favor of appellant.
Whether such discounts were actually passed on to customers/buyers - HELD THAT:- From the said invoices/bills we also find that the appellant during the relevant period, had claimed discounts of exactly the quantities thereof passed on to the customers. The finding in the impugned order that the appellant had claimed abatement of ₹ 4,04,77,213.47 which had not been passed on the customer is therefore unsustainable.
Time Limitation - HELD THAT:- Since we have decided the appeal is favor of the appellant on merit, we have not gone into the aspect of limitation.
Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1934
CENVAT Credit - inputs received from their sister concern on stock transfer basis - denial of credit on the ground that the assessee has not purchased inputs - period April, 2000 to June, 2001 and October, 2001 to February, 2003 - HELD THAT:- There is no dispute that the inputs were received by the assessee in their factory. The duty paid nature of these inputs and documentary proof evidencing payment of duty are also not in dispute. Receipt of inputs by way of purchase is not a necessary condition for availment of credit - Credit cannot be denied - appeal dismissed - decided against Revenue.
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2018 (7) TMI 1933
Valuation - inclusion of value of the materials supplied by the Indian Railways free of cost in assessable value - period of dispute is from 01.8.1986 to 22.2.1987 - HELD THAT:- The department in respect of the Appellant’s Agarpara Works, had decided an identical issue where it was categorically recorded in para 3 that ‘Since the duty liability of the wagon vendors will ultimately devolve on the Ministry of Railways on the contractual provisions, Ministry of Railways have taken up the matter for settlement of the issue with the Ministry of Finance directly, and accordingly made payment of 96 crores towards duty liability in respect of wagon manufactured for them by various wagon manufacturers.
There is no reason for the department to take a contrary view in respect of another unit of the appellant on a similar issue, even after acknowledging that the SCN that gave rise to the present proceeding covered in the negotiation between the Ministry of Railways and Department of Revenue.
Once the matter is settled and duly accepted by the Department, there is no reason for the same Department though a different office to take a contrary view so far as the present demand of ₹ 15,99,482 for the period 23.02.1987 to 14.04.1987 is concerned. However, the appellants have not filed any Chartered Accountant’s Certificate to substantiate their claim - the MODVAT credit is allowed subject to verification by the Adjudicating Authority.
Appeal allowed by way of remand.
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2018 (7) TMI 1932
Irregular credit of customs duty paid through DFCE Certificate - introduction of DFCE scheme to accelerate growth in exports by rewarding star export houses - HELD THAT:- There is no dispute with regard to the amount of additional duty and education cess paid on the inputs. There is also no dispute regarding the receipt of the goods in the factory of the appellant and used in or in relation to the manufacture of final products, which were subsequently cleared on payment of Excise Duty. Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, provided that the Central Government may, from time to time, formulate and announce by Notification in the Official Gazette, the export and import policy and may also in the like manner, amend that policy. (upto above corrected) .
The Central Government by appropriate notification formulate and announce the exim policy 2002-07 and amend the same. Para 3.7.2.1 of the policy provided for DPC scheme and it was amended by notification No. 6(RE)/05/04-09 dated 4.6.2005, whereby Note-8 was inserted, which provided that additional customs duty / excise duty paid in cash or through debit under the DFCE entitlement certificate, would be adjusted as Cenvat credit as per rules framed by the Department of Revenue. The Department of Revenue, by its circular dated 13,10.2006 clarified that Additional Customs Duties paid through debit in certificate issued under DFCE can be availed of as Cenvat credit. The relevant exim policy has a force of law and Adjudicating Authority should have considered the same before holding that Cenvat credit has to be availed and utilized on this strength of notification issued by CBEC.
The Notification dated 17.11.2005 amending the basic Notification 53/2003 is a classificatory Notification and should be applied from the date of DGFT Notification.
Shortage of goods - It is the case of the appellants i.e. the shortage was due to difference arising on account of weighment on different weigh bridges - HELD THAT:- Such percentage of shortage is not made the goods having different calibrations.
Penalty u/s 11AC read with Rule 15 of the Cenvat Credit Rules, 2004 and Rule 25 of the Central Excise Rules, 2002 - HELD THAT:- There is no ingredient of mis- statement, suppression of facts etc., with an intent to evade payment of duty. Accordingly, no penalty is imposable under section 11AC read with Rule 15 of the Cenvat Credit Rules, 2004 and Rule 25 of the Central Excise Rules, 2002. The Cenvat credit of additional customs duty paid under TP Scheme from the date of its operationalization is allowed.
Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1931
CENVAT Credit - Process amounting to manufacture or not - Whether Cenvat credit availed by NIPL on the inputs sent to TGS, which were used in the manufacture of final products, was available to NIPL? - HELD THAT:- In the instant case there is no dispute that structural fabrication was carried out on the goods supplied by TGS at the site of NIPL - Such structural fabrication, as held in the case of Mahindra & Mahindra Vs. CCE [2005 (11) TMI 103 - CESTAT, NEW DELHI] by the Larger Bench of this Tribunal amounts to “manufacture” within the meaning of Section 2(f) and Section 3 of the Central Excise Act.
It is not in dispute that the kiln and cooler in question are capital goods, used in the manufacture of final product, namely, sponge iron. The raw material on which NIPL has availed Cenvat credit are inputs, used in the manufacture of the capital goods - Even otherwise, as per Rule 2(k) of the CCR, inputs include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer. Therefore, NIPL was eligible to avail the disputed Cenvat credit.
Liability of payment of duty on TGS on the manufacture of the said capital goods - Job-work - HELD THAT:- It is an admitted fact that NIPL, being the principal manufacturer in the instant case, had undertaken to discharge the duty liability harnessed on TGS by way of a declaration made before the jurisdictional Central Excise officer as per Notification No. 214/86-CE - Since, there is no allegation or finding to the effect that the principal manufacturer in the instant case had not complied with any condition of the said notification, the benefit of the Notification was available to them. Therefore, TGS was not liable to discharge duty on the goods manufactured by them - Since, the liability of payment of duty on NIPL is not the subject matter of the Show Cause Notice in the instant case, we refrain from making any observation to that extent.
Penalty - HELD THAT:- Since the demands against NIPL and TGS are liable to be dropped, the penalty imposed on Shri R.K. Agrawal cannot sustain.
Appeal dismissed - decided against Revenue.
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2018 (7) TMI 1930
Valuation - ‘SURF’ and ‘SUNLIGHT’ branded Bulk Detergent Powder - stock transfer to job-workers for packing into smaller consumer packs - included of ‘cost of service’ in assessable value - HELD THAT:- The issue is no more resintegra in view of the decision of the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS CADBURY INDIA LTD. [2006 (8) TMI 2 - SUPREME COURT OF INDIA] . The Hon’ble Supreme Court has held that cost of production of captively consumed goods to be determined strictly in accordance with CAS-4, as laid down by the Institute of Cost and Accounts of India.
In the present case the assessee was following the practice of collecting cost of Power, Water, Furnace Oil, HSD under the nomenclature ‘cost of service’. Subsequently with introduction of CAS-4 vide CBEC Circular dated 13.02.2003, the cost of production was arrived at in accordance with CAS-4 formerly and there was no occasion for addition to any other service expenses.
Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1929
Valuation - Fly Ash - wrongful availment of concessional rate of duty - benefit of N/N. 57/95 dated 16 March 1995 - extended period of limitation - HELD THAT:- The department was all along fully aware of the clearances of concessional rate of duty on the basis of the certificates from the competent authority, addressed to the Jurisdictional Superintendent, besides the reflection of the excise invoices and the reporting of such clearances in RT-12 returns. It is well settled by the decision of the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, MUMBAI VERSUS M/S. BLUE STAR LTD. [2015 (3) TMI 628 - SUPREME COURT] that when the full facts are known to the department, extended period cannot be invoked.
The benefit of the concession for the broken period of 2 June 1998 to 21 September 1998 cannot be denied in view of the decision of the Tribunal in BHARAT TEXTILES & PROOFING INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., CHENNAI [2010 (3) TMI 613 - CESTAT, CHENNAI] as well as M/S. SAM TURBO INDUSTRIES LTD. VERSUS CCE, COIMBATORE [2011 (4) TMI 158 - CESTAT, CHENNAI] on identical facts involving the same concession notification as involved in the appeal herein.
Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1928
Valuation - captive consumption - Rule 8 of the Central Excise Valuation Rules (Determination of price of excisable goods), 2000 - revenue neutrality - HELD THAT:- Although the valuation adopted by the appellant is not correct in view of the decision of Hon’ble Tribunal in the case of ISPAT INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., RAIGAD [2007 (2) TMI 5 - CESTAT, MUMBAI] but it is fact that the adjudicating authority has not considered the issue of revenue neutrality - It has been held number of decisions where there is revenue neutrality situation there is no justification in issuing a confirming the demand as the whole exercise will be only academic one.
The demand is required to be reconsidered and appropriate order is required to be passed considering the above judgement - Appeal allowed by way of remand.
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2018 (7) TMI 1927
CENVAT Credit - credit denied on the ground that goods had not been manufactured and cleared from the factory of Ishaan Technologies Private Limited - Rule 7(1) of the Cenvat Credit Rules, 2002 - HELD THAT:- The instant proceeding is a consequence of investigation initiated by DGCEI authorities against Ishaan Technologies Private Limited, Byrnihat, Meghalaya and simultaneously against all the units of Manaksia Limited, including the appellant and its associates/sister concerns and that on the basis of the evidences on record, similar show cause notice was issued to the Kutch unit of Manaksia Ltd. at Gujarat alleging wrong availment of cenvat credit - Hon'ble Gujarat High Court in the case of Commissioner of Excise and Customs Vs. Manaksia Limited [2010 (4) TMI 1046 - GUJARAT HIGH COURT] has held that even if the alternator may have been manufactured at Delhi as contended by the revenue, as long as the duty liability of such alternator had been discharged by the supplier, entitlement of the respondent company to avail of CENVAT credit in respect of the duty paid on the capital goods in question cannot be disputed.
In the instant case also there is no dispute that the subject machineries were received at the appellant’s factory at Barjora, Bankura, West Bengal. It is also not disputed that the duty on the said machineries stands paid by Ishaan Technologies Private Limited and that the goods were received under the cover of Central Excise invoices issued by the said company. It is also not the case of the Revenue that the appellant had availed higher credit than the duty actually paid as reflected in the duty paying documents. In such circumstances, as held by the Hon'ble Gujarat High Court, the requirement of Rule 7(1) of the Cenvat Credit Rules, 2002 stands duly satisfied - the appellant’s entitlement to avail Cenvat credit in respect of the duty paid on the subject goods is legal and valid and cannot be denied.
Appeal allowed - decided in favor of appellant.
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