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Case Laws
Showing 441 to 460 of 1861 Records
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2018 (6) TMI 1422
Refund in cash - payment of excise duty under protest - respondent no longer undertakes any activity requiring payment of excise duty - Held that:- In view of the fact that respondent no longer undertakes any activity requiring payment of excise duty, therefore the Tribunal took a view that no useful purpose would be served by allowing recrediting into the Modvat credit account - appeal dismissed.
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2018 (6) TMI 1421
Clandestine removal - MS Ingots - third party evidences - whether the Principal Commissioner vide its impugned order dated 28.12.2017 is justified in confirming the demand of Central Excise duty of ₹ 4,65,570/- along with interest and penalty in respect of clandestine removal of 154.580 mt of M.S. Ingots recovered from the appellant M/s. Sairam Steels Pvt. Ltd., Raigarh (CG) of which the appellant-Pawan Kuram Agarwal is Director?
Held that:- In the impugned order nowhere it has been discussed as to how the demand to duty of ₹ 4,65,570/- is sustainable in the absence of any clinching evidence of clandestine manufacture and removal of the goods and also in view of the fact that the said amount is already included in the duty demand of ₹ 6,38,05, 258/-which has been dropped in the impugned order by the ld. Principal Commissioner. There is absolutely no evidence on record to show that the appellant has cleared 154.580 MT of M.S. Ingots. The entire demand is based upon the records recovered from Sh. S.K. Pansari proprietor of M/s. Monu Steel.
The law as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence on any corroborative evidence, is well settled. Only on the basis of statement of third party no demand could be made.
The penalty imposed on the Sh. Pawan Kumar Agarwal, Director is also set aside.
Appeal allowed - decided in favor of appellant.
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2018 (6) TMI 1420
CENVAT credit - Rule 6(3) of CCR 2004 - Job-work - whether the respondents are required to pay an amount under Rule 6(3) of CCRR 2004 in the fact that the respondents are working as job worker under N/N. 214/86-CE dated 25.03.1986? - Held that:- As per 3rd Proviso to Rule 3(1), Even though the goods manufactured under Notification 214/86- CE, the CENVAT Credit in respect of inputs used in the said goods is admissible. Therefore, Rule 6(3) shall not apply in the present case.
Reliance placed in the case of STERLITE INDUSTRIES (I) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE [2004 (12) TMI 108 - CESTAT, MUMBAI], where it was held that Modvat credit of duty paid on the inputs used in the manufacture of final product cleared without payment of duty for further utilisation in the manufacture of final product, which are cleared on payment of duty by the principal manufacturer, would not be hit by provision of Rule 57C.
Appeal dismissed - decided against Revenue.
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2018 (6) TMI 1419
Principles of natural justice - case of appellant is that he has no idea whether any such challans have been produced before the adjudicating authority or not but he requested that since the adjudicating authority has not dealt with the challans, therefore, this matter may be remanded to the adjudicating authority for denovo adjudication - Held that:- It is fit and appropriate, in the interest of justice, to set aside the impugned order and remand the matter to the adjudicating authority for denovo adjudication - appeal allowed by way of remand.
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2018 (6) TMI 1418
Clandestine removal - principles of natural justice - Held that:- In this case, after repeated request of the appellant, no cross examination of Shri S K Panari was granted to the appellant, which is in gross violation of principles of natural justice - demand against the appellants on account of removal of goods is not sustainable - appeal allowed - decided in favor of appellant.
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2018 (6) TMI 1417
Valuation of Paper Board - case of appellant is that value of paper board for the purpose of quantification should be fixed at ₹ 12 per kg. - Held that:- SCN in para 15.1 to 15.5 has elaborately gone into the raison d’etre for adopting the value of ₹ 13 per kg. The very same invoices had been produced before the lower appellate authority who, in Para 13 of the impugned order has noted that they were invoices beyond the period of dispute. The plea of the appellant on this score is therefore found to be specious, and is therefore rejected.
Cum-duty benefit - case of appellant is that as the appellant company had not collected any duty amount from UPC, the demand of differential duty may also be re-determined by extending “cum duty benefit” - Held that:- This is a case where the entire transactions were done clandestinely, right from the getting raw materials, to the production and the clearances all of which were sought to be kept away from the eye of the department - there cannot be any mitigation of the tax liability by grant of cum duty benefit.
Appeal dismissed - decided against appellant.
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2018 (6) TMI 1416
Reversal of CENVAT Credit - Rule 3 (5) of CCR, 2004 - the main plank of the revenue is that the goods removed to EOU have been removed as such since the mixing of gases does not amount to manufacture and hence it requires reversal of credit - Held that:- The goods even if cleared as such to 100% EOU against CT – 3 certificate does not invite any reversal as removals are deemed export - Reliance placed in the case of THE COMMISSIONER OF CENTRAL EXCISE, BANGALORE-II VERSUS M/S SOLECTRON CENTUM ELECTRONICS LTD. [2014 (10) TMI 596 - KARNATAKA HIGH COURT] - appellant not liable to reverse any credit in terms of Rule 3 (5) of CCR, 2004 - appeal allowed - decided in favor of appellant.
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2018 (6) TMI 1415
Method of Valuation - Section 4 or Section 4A of CEA - Appellant defaced and removed brand name “MILTON” from insulated wares and sold them as loose articles in bulk - Held that:- There is no dispute about the facts that the goods were sold in loose form after defacing / removing the brand name of Milton from such insulated wares. The appellants as per the conditions of NOC issued by M/s. Milton had removed all the brand name/ logo/ marking and packing which could identify the product with M/s Milton. In such case the appellant was not liable to clear the goods by affixing MRP as the same were not in packed form and the requirement under SWMA, 1976 was not applicable to the appellant.
Valuation u/s 4 of CEA is applicable - appeal allowed - decided in favor of appellant.
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2018 (6) TMI 1414
CENVAT Credit - input services - GTA Services - whether in case of clearance under Section 4A, the Depot can be considered as a ‘place of removal’? - Held that:- CBEC vide letter No.137/3/200-CX dt. 2.2.2006, inter alia had clarified that in case of depot sales of goods, the credit of service tax paid on the transportation of goods up to such depot would be eligible, irrespective of the fact, whether the goods were chargeable to excise duty at specific rates or ad valorem rates on the basis of valuation under section 4 or 4A of the Central Excise Act - there should not be any doubt that eligible services availed upto the depot /RDCs by the appellant in this case would be eligible for availment of input service credit - There should not be any doubt that eligible services availed upto the depot /RDCs by the appellant in this case would be eligible for availment of input service credit.
GTA services availed beyond the RDCs - Held that:- There are two different situations, one before 1.4.2008 and after that date, by virtue of amendment vide clause (ii) of Rule 2(l) by Notification No.10/2008-CE (NT) dt. 1.4.2008. By this amendment, the phrase “from the place of removal” was substituted “up to the place of removal”. The issue of whether the assessees are eligible for service tax credit in respect of the GTA services beyond place of removal has been mired in litigation for quite some time.
The appellants will be eligible for input service credit in respect of GTA services availed beyond their RDCs but only upto 31.3.2008. For all services availed on or after 1.4.2008, they then by consequence cannot avail input service credit on such GTA services - the input services which have been disputed except for GTA beyond the RDCs are very much eligible services for the purpose of Rule 2(l), whether before 1.4.2011 or after that date.
Penalty - Held that:- Issues relating to eligibility of cenvat credit of many of these input services were a matter of litigation. Hence the matter has to be considered as one of interpretation - penalties set aside.
Appeal disposed off.
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2018 (6) TMI 1413
CENVAT Credit - input services - capital goods - Marine Insurance services - Air Travel Agent’s services - capital goods cleared without being used as such - extended period of limitation - Held that:- This appeal can be disposed of only on the ground of limitation.
SCN is issued on 17.05.2016 for the various transactions on availment of CENVAT credit during the period May, 2013 to March, 2015. It is undisputed that the appellants were regular in filing the monthly returns with the authorities.
The Audit reports submitted by the Learned Counsel are for period January, 2013 to December, 2013 audited during the period 26.01.2014 and 28.01.2014 and audit reports for January, 2014 to December, 2014 audited on 06.01.2015 - 21.01.2015. The said audit reports did not indicate any of the allegations made in the present show cause notice. It is also seen from the said show cause notice dated 17.05.2016, the basis for issuance of show cause notice is the audit report of the CAG - It is settled law in the case of Commissioner of Central Excise, Bangalore Vs. MTR Foods Ltd., [2012 (10) TMI 165 - KARNATAKA HIGH COURT] wherein, Hon’ble High Court of Karnataka has specifically held that once returns were regularly filed and no objections raised about same in first audit by Revenue Officers and during second audit, objections raised about same, and the said returns indicated availment of CENVAT Credit Rules, the audit party accepted the same, and it is not proper to invoke the extended period.
The impugned order is set aside only on the ground of limitation - appeal allowed - decided in favor of appellant.
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2018 (6) TMI 1412
Clearance of pipes for supply of water - the pipes are used for distribution of water beyond the first storage facility - Violation of condition of notification - Benefit of N/N. 06/2002- CE as amended by N/N. 47/2002- CE - case of Revenue is that the pipes which are cleared by the respondent are used not only for the pipes for delivery of water from its source to the water treatment / supply plant and further also - Held that:- The facts in this case are not disputed i.e. respondent clears pipes availing benefit of N/N. 06/2002 - CE as amended by N/N. 47/2002 -CE; the pipes are undisputedly used for distribution of water from the storage point - reliance placed in the case of CCE., C. & ST. (A-III), HYDERABAD VERSUS IVRCL INFRASTRUCTURES & PROJECTS LTD. [2008 (12) TMI 198 - CESTAT, BANGALORE], where it was held that the Notification merely talks about the storage facilities and there is no restriction that the water should be delivered only to the first storage point - benefit cannot be denied - appeal dismissed - decided against Revenue.
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2018 (6) TMI 1411
CENVAT Credit - capital goods - Balance 50% credit taken in 2011-12 on MS items - Held that:- As far as the amount of ₹ 4,73,808/- is concerned this is the second instalment of 50% of the capital goods credit of the amount already allowed by this Bench in the case of M/S MARUTI ISPAT & ENERGY PVT. LTD. VERSUS THE COMMISSIONER C. CE & ST, GUNTUR [2016 (12) TMI 659 - CESTAT HYDERABAD] - credit allowed.
Fresh credits on MS items and other items used for fabrication/ repairs - Held that:- In the case of M/S MARUTI ISPAT & ENERGY PVT. LTD. VERSUS THE COMMISSIONER C. CE & ST, GUNTUR [2016 (12) TMI 659 - CESTAT HYDERABAD], credit was allowed on MS Channels, MS Beams, MS Joists, HR Coils, HR Plates, Woven wire mesh etc., which are used in fabrication of capital goods - credit allowed.
CENVAT credit - input services - services rendered by the architects - Held that:- It is clearly excluded in view of the definition of input service under Section 2(l) after 01.04.2011 - credit not allowed.
The amount of interest and penalty get modified accordingly.
Appeal allowed in part.
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2018 (6) TMI 1410
Refund of Education Cess on counter veiling duty - rejection on the ground of limitation and also on the ground of unjust enrichment - Held that:- In the case in hand, the authorities have not returned or rejected the refund claims filed by the appellant which was within time - the refund claim stands filed within one year of the amount paid wrongly, supporting documents were filed beyond the period of one year does not make the refund claim hit by limitation - refund cannot be rejected on this ground.
Unjust enrichment - Held that:- The appellant had filed the refund claim when he had already passed on the amount to his suppliers by raising a bill - It is also undisputed that the credit notes were issued on 10.07.2014 when the Revenue Authorities sought documentary evidence from appellant for processing the refund claims - the findings of the lower authorities on this point are correct - refund rightly rejected on this ground.
Appeal dismissed - decided against appellant.
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2018 (6) TMI 1409
Specified goods supplied to specified institutions - Benefit of N/N. 10/1997- CE dated 01.03.1997 - Whether the appellant is entitled to benefit of the N/N. 10/1997 for the goods cleared by them or not and whether interest is imposable on the duty and whether penalty can be imposed on the appellant? - Held that:- It is not in dispute steel doors with frames were supplied and the buyer is a public funded research institution. It is also not in dispute that one of the conditions of the notification is that the institution must be registered with the DSIR Government of India and such certificate was not produced during the adjudication or appeal or even during the current proceedings - Also, the description of the goods do not match. Also, the condition of the institute being registered that DSIR was also not fulfilled - the demand is sustainable and interest thereon is payable.
Penalty - Held that:- There were reasonable grounds for the appellant to be under the bonafide belief that they were eligible to avail the exemption notification - penalty set aside.
Appeal allowed in part.
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2018 (6) TMI 1408
Reversal of CENVAT Credit - benefit of N/N. 82/84 is availed - denial of benefit on the ground that the benefit of N/N. 82/84 is availed and exemption granted, appellant having availed CENVAT credit on common input services is required to reverse an amount equivalent to 6% of the value of the goods - Held that:- Identical issue decided in appellant own case INOX AIR PRODUCTS PVT. LTD. VERSUS CCE & ST VISAKHAPATNAM [2017 (9) TMI 500 - CESTAT HYDERABAD], where reliance was placed in the case of DHARAMSI MORARJI CHEMICAL CO. LTD. Versus COMMR. OF C. EX., RAIGAD [2010 (3) TMI 561 - CESTAT MUMBAI], where the very same rule 6 of Cenvat Credit Rules was invoked, where the Bench has held that the provisions of Rules are not attracted in case in hand where CT-3 certificate has been issued - reversal of CENVAT Credit not required - appeal allowed - decided in favor of appellant.
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2018 (6) TMI 1407
CENVAT credit - input services - food provided to the workers outsourced by the appellant - whether or not the credit of service tax on outdoor catering services should be allowed in view of the statutory requirement under the Factories Act? - Held that:- Tribunal being a creation of law, has no power to amend, enlarge, restrict or otherwise modify the Act or Rules. This position does not change even if the appellant has an obligation under the Factories Act or any other law and Tribunal cannot enlarge the scope of CENVAT Credit Rules.
The matter should be referred to Hon'ble President for constituting a Larger Bench to resolve the issue - matter referred to Larger Bench.
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2018 (6) TMI 1406
Classification of goods - aloe vera juice - whether aloe vera juice is covered by the expression "processed or preserved vegetable"? - the decision in the case of THE COMMISSIONER, COMMERCIAL TAX, U.P. LUCKNOW VERSUS S/S FOREVER LIVING IMPORTS (I) PVT. LTD. [2017 (9) TMI 1303 - ALLAHABAD HIGH COURT] contested - Held that:- The decision in the above case upheld - SLP dismissed.
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2018 (6) TMI 1405
Imposition of Penalty - discrepancy between e-Sugam and the Invoice with respect to value and quantity of goods - Held that:- The impugned order does not give rise to any question of law requiring consideration by this Court and the explanation furnished by the assessee appears to be plausible and the Tribunal cannot be said to have committed any error or perversity in accepting the same and setting aside the penalty in question - revision petition dismissed.
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2018 (6) TMI 1404
Principles of Natural Justice - cancellation of registration of premises - KVAT Act, 2003 - main grievance of the petitioner in the present writ petition is that the impugned order was passed by the respondent without giving notice and opportunity of hearing to the petitioner and hence the same is violative of principles of natural justice - Held that:- The notice was not at all served to the petitioner as contemplated under the provisions of Section 39(1) of the KVAT Act and no opportunity was given to the petitioner either to produce books of accounts or for the hearing. The impugned order clearly depicts that the proposition notice was returned un-served by the postal authorities with remarks that “No such firm in this address”. If it is so, the authorities ought to have proceeded to apply the provisions of Rule 176 of the Karnataka Value Added Tax Rules, 2005 to serve the petitioner and the same has not been done.
Though in the impugned order both office and residential addresses are given, the material does not depict that petitioner has been served either in the residential address or in office address and on that ground itself, the impugned order has to be quashed.
Petition allowed.
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2018 (6) TMI 1403
Issuance of ‘C’ declaration form - KVAT Act, 2003 - non-speaking order - Held that:- The material on record clearly depicts though the Commissioner of Commercial Taxes on 12.05.2008 (Annexure-G) issued clarification, still the first respondent without considering the Section 15(5)(a) of KVAT Act, 2003 has proceeded to pass the one line impugned order which is not a speaking order without reference to the clarification issued by the Commissioner for Commercial Taxes. Therefore, same cannot be sustained - petition allowed.
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