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Showing 481 to 500 of 1903 Records
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2015 (11) TMI 1423
Penalty u/s 78 - Commercial Construction service - Notification No. 1/2006 ST dated 1/3/2006 - Held that:- Since on the issue on merit there were conflicting views and finally issue was decided by the Larger Bench of this Tribunal there is reasonable cause of non-payment of service tax on the abatement amount. Therefore in my considered view Ld. Commissioner (Appeals) has rightly waived the penalty under Section 78 invoking Section 80 of Finance Act, 1944 - Commissioner(Appeals) has correctly invoked Section 80 and waived the penalty of Section 78 - Decided against Revenue.
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2015 (11) TMI 1422
Denial of input service credit - discrepancy in the document on the strength of which Cenvat Credit - Rule 9(2) of Cenvat Credit Rules, 2004 - Appellants has taken Cenvat Credit on the documents which are not correct documents under Cenvat Credit Rules, 2004 - Held that:- as per rule 9(2) of Cenvat Credit Rules, appellant is not entitled to take Cenvat Credit on the strength of these facts - in the case of Music Broadcast Pvt. Ltd., Cenvat credit is sought to be denied by the learned Commissioner (Appeals) on the premise that appellant was not registered at the time of issuance of invoices, I find that said issue has been dealt by the Tribunal in the case of Imagination technologies India P. Ltd [2011 (4) TMI 406 - CESTAT, MUMBAI] - following the precedent decision of this Tribunal, although the appellant was not registered with the service tax department during the relevant time it has availed the services, the appellant is entitled to take Cenvat credit. - neither in the show cause notice nor in the impugned order, it has been disputed that appellant has not availed inputs service and has not paid service tax. - appellant is entitled to take Cenvat credit - Decided in favour of assessee.
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2015 (11) TMI 1421
Interest on delayed refund - Held that:- Interest on delayed refund is payable under section 11BB of the Central Excise Act, 1944 on expiry of the period of three months from the date of receipt of application under section 11BB ibid and not from the date of order of refund or appellate order allowing such refund. - Supreme Court is the law of land and the same is to be followed by all the Courts of India as per Article 141 of Constitution of India, which provides that the law declared by Supreme Court shall be binding on all courts within the territory of India. Thus, following the decision of the Hon ble Supreme Court in the case of Ranbaxy Laboratories (2011 (10) TMI 16 - Supreme Court of India ), I hold that appellant is entitled to claim the interest for the period after three months from 2.8.2006 till 5.12.2012 - Decided in favour of assessee.
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2015 (11) TMI 1420
Services of Erection, Commissioning and Installation Services - Denial of benefit of Notification No.45/2010 ST dt. 20.07.2010 - Held that:- Assessee-Appellant were undisputedly engaged in providing service relating to transmission and distribution of electricity. The claim of the Appellant-assessee is that by virtue of Notification No.45/2010 ST dt. 20.07.2010, no service tax is required to be paid by them for the period in dispute which is prior to 21.06.2010. - Notification has been interpreted by this Tribunal in the case of M.P.Power Transmission Co. Ltd. (2011 (2) TMI 982 - CESTAT, NEW DELHI ) and later in the case of Noida Power Co.Ltd. Vs. Commissioner of C.Ex. Noida [2013 (8) TMI 746 - CESTAT NEW DELHI] and the issue was decided in favour of the assessees - Besides, in view of the clarification issued by the Board, the Appellant are eligible to the benefit of the said Notification. In the result, the impugned Order is set aside - Decided in favour of assessee.
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2015 (11) TMI 1419
Denial of refund claim - Notification No. 17/2009 ST dated 7/7/2009 - Commission Agent Services - Held that:- Commissioner(Appeals) has relied upon the Board Circular No. 1320/01/2010 ST dated 19-01-2010, which is squarely applicable in the present case. - As per the said Circular refund otherwise admissible under Rule 5 of Cenvat Credit Rules, 2004. There is no dispute regarding nexus between services and export made by respondent. I therefore do not find any infirmity in the impugned order. - Decided against Revenue.
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2015 (11) TMI 1418
Condonation of delay - delay of 291 days - Held that:- The medical certificate when discloses that the appellant was under treatment from 1.2.2013 that does not reveal after 23.11.2012 whether the appellant had any knowledge before his treatment started. It is also curious to notice that 21 days before expiry of the period of filing of the appeal the appellant was under treatment. Added to this, it is further noticeable that when the appellant was discharged from the hospital on 15.8.2013, there were no steps taken by him till 11.12.2013 which was the date of filing of appeal. - The cause stated in the application does not appeal to common sense when there were no steps taken before or after expiry of the limitation. The wide gap of four months from the date of discharge from treatment till date of filing of the appeal does not satisfy the reason of delay. In such circumstances, the plea of loss of the impugned order for a temporary period and discovery thereof after a span of time is untenable. Tribunal has experienced frequently the plea of leaving of an employee soon after an impugned order is received by a litigant and sudden discovery thereof after some time to seek delay condonation. - Condonation denied.
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2015 (11) TMI 1417
Levy of Penalty u/s 76, 77 & 78 - Assessee did not declare the facts in their ST-3 returns nor paid the service tax - whether in applying the provisions of Section 78 proviso, the amount of service tax to be considered for calculation of 25% of penalty should exclude the service tax paid before issue of show cause notice - Held that:- The appellant was aware of the obligations under the Service Tax law because initially he had taken registration from the department but had surrendered the same in April 2008 on the belief that the gross receipts were less than the registration limit. This plea cannot be a bonaflde belief because it has come on record that during the year 2007-08 he had realized an amount of ₹ 19,90,000/-. The mistaken belief now expressed by him, therefore, has no basis. - The receipts for the years 2007-08 and 2008-09 were recovered from him in the form of computerized sheets to which there is no denial. - Decided against assessee.
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2015 (11) TMI 1416
Waiver of pre deposit - mandatory pe-deposit - Scientific or Technical services - Penalty u/s 77 & 78 - Held that:- Appellants are the manufacturer of 'Bulk Drugs and formulations falling under chapter heading 29 and 30 of the first schedule to teh CETA, 1985. They have entered into an agreement with their Principal Company Actavis Elizabeth LLC, USA for development of new products. Once the contract is approved, the commercial production of new products would be carried out by the appellants in India. Therefore, prima facie, the appellants are not made out a case for waiver of pre-deposit. In this regard, the Hon'ble High Court of Rajasthan (2015 (6) TMI 110 - RAJASTHAN HIGH COURT) held that the amendment of Section 35F of Central Excise Act, 1944 for mandatory deposit of 7.5% or 10% applies for the earlier period prior to 06.08.2014. In view of the above, the appellant is directed to make pre-deposit of an amount - Partial stay granted.
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2015 (11) TMI 1415
Denial of refund claim - use of Technical Testing Services in export of goods - Held that:- there is no doubt that the said service was used in relation to exported goods and such testing was required to be done as per the written agreement with the buyers and also the said service is duly covered under Notification No.41/2007-ST, dated 06.10.2007 and therefore we fail to comprehend the ground on which the Revenue considered this amount of refund to be inadmissible.
As regards the refund of ₹ 87331, we find that the invoices have been raised by Mumbai Port trust which clearly show the amount of service tax therein and the name of the respondent is also duly mentioned therein. Port services are specifically covered under Notification No.41/2007-ST, dated 06.10.2007. The judgement of CESTAT in the case of Velji P & Sons (2007 (8) TMI 35 - CESTAT, AHMEDABAD) is of no help to Revenue when the invoices themselves have been issued by Mumbai Port Trust and show the amount of service tax therein because the said judgement nowhere states that the refund of service tax paid under Port Services is not admissible as per Notification No,41/2007-ST. No infirmity in the impugned order - Decided against Revenue.
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2015 (11) TMI 1414
Claim of exemption on clearance of product known as "Crane Gutkha" which is containing chewing Tobacco - Whether branded or not - Benefit of Exemption Notification No. 08/2001 CE dated 01.03.2001 - Held that:- the goods of the assessee are preparations containing chewing Tobacco. Thus, the only question is as to whether branded or unbranded preparations in order to qualify for exemption under the aforesaid Notification, the assessee has to prove that goods are unbranded. We have already pointed out above that the assessee is selling these goods under the brand name "Crane Gutkha". However, the contention of the learned counsel for the assessee is that since this is the home brand name that brand name belongs to the assessee itself which has to be treated as unbranded. This contention proceeds on the premise that the branded goods belonging to third party only would be treated as branded and insofar as goods sold under brand name belonging to the assessee are concerned, they have to be treated as unbranded. This contention is clearly misconceived and untenable. - judgment of the Tribunal is unsustainable in law and is liable to be set aside. Thus, holding that the assessee is not entitled to any exemption under the aforesaid Notification - Decided in favour of Revenue.
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2015 (11) TMI 1413
Manufacture - dutiability of the intermediary product 'Clinker' - captive consumption - whether the product "Clinker" is covered by the Exemption Notification No. 67/1995 - Held that:- Clinker is used as input for production of Cement and Cement is exempted from the excise duty. Therefore, by virtue of this proviso insofar as Clinker is concerned, Exemption Notification would not apply. However, the matter does not end here inasmuch as the proviso itself is not applicable under certain circumstances as mentioned therein, viz., in respect of those goods which are cleared under six circumstances. We are concerned here with clause (vi) which states that if goods are cleared by a manufacturer of dutiable and exempted final products after discharging the obligation prescribed in Rule 6 of the CENVAT Credit Rules, 2001, then proviso would not apply.
The case set up by the appellant therefore, was that since the exempted goods ('Cement') is cleared by the appellant who is a manufacturer of (a) 'dutiable final products' ('Clinker') and (b) 'exempted final products' ('Cement') after discharging the "obligation" prescribed in Rule 6 of the CENVAT Credit Rules, 2001, clause (vi) of the notification applies.
Applicability of Rule 6 of Cenvat Credit Rules - Held that:- As per the CESTAT, Rule 6 applies only if some final product is partly exempt and partly dutiable. However, we do not find any such restriction in Rule 6 which contemplates the situation where a manufacturer produces (a) final products which are chargeable to duty, as well as (b) exempted goods. The Rule does not provide that the same final product should be partly dutiable and partly exempted. On the contrary, this Rule relates to taking of CENVAT Credit in respect of 'inputs'.
Reversal of Cenvat Credit - Rule 6 is not applicable as such in its totality since taking of CENVAT credit is not in issue in these cases. On the other hand, relevance of this Rule is only to the extent of 'obligation' contained in the said Rule which is to be discharged. A plain reading of clause (vi) of the notification would show that it only contemplates a situation where 'a manufacturer manufactures both dutiable as well as exempt final products'. There may be different final products manufactured by the same manufacturer. The final products may be made out of the same product or out of different products. Clause (vi) does not contemplate that the manufacturer should manufacture only 'one final product' or that if he manufactures only one product that product itself should be both dutiable and exempted. The basis adopted by the CESTAT that the 'same final product' should be partly dutiable and partly exempt, is neither a requirement of clause (vi) nor a requirement of Rule 6. - Impugned order is set aside - Decided in favour of assessee.
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2015 (11) TMI 1412
Rate of duty - Valuation of goods - applicability of Notification No.14/2002-CE dated 01.03.2002 - Held that:- in the light of the provisions of section 35G read with section 35L of the Central Excise Act, 1944 these appeals are not maintainable before this court - Decided against Revenue.
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2015 (11) TMI 1411
Clandestine removal - documents recovered broker of final product of assessee - statement recorded from broker was retracted and broker could not be produced for cross-examination by the assessee - High Court dismissed the appeal filed by Revenue against the decision of Tribunal [2010 (3) TMI 700 - CESTAT, BANGALORE]; wherein tribunal held that statement could not be used to find evasion. High Court dismissed the appeal by holding that Court has dismissed an appeal previously. Hence, this appeal is also dismissed.
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2015 (11) TMI 1410
Imposition of penalty - contravention of the provisions of Rule 8(3) of the Central Excise Rules, 2002 by not paying the duty by due date as specified under Rule 8(1) of the Central Excise Rules, 2002 - whether the default committed by the respondent under Rule 8 warrants penalty under Rule 25 as held by the Additional Commissioner, or Rule 27 as held by the Commissioner (Appeals) - Held that:- In view of the law cited by the learned Commissioner (Appeals) in his order, I am of the considered opinion that the default committed by the appellant is not such so as to attract penalty under Section 11AC and Rule 25 of the Central Excise Rules, 2002. Further, the penalty imposed on the respondent under Rule 25 is perfectly in accordance with law and I uphold the decision of the Commissioner (Appeals) - Decided against Revenue.
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2015 (11) TMI 1409
SSI exemption benefit under Notification No.8/2001, 8/2002 and 8/2003 - clearance of the goods on their own account and paid duty in respect of clearance of the goods bearing brand name of the loan licensee - Invocation of extended period of limitation - Held that:- Appellant had disclosed the location of the factory, clearance of goods on payment of duty separately in the ER-1 return. In any event, the Appellant cleared the goods bearing brand name of the loan licensee and declared in their ER-1 return. So, the Department was aware of the location of the factory in the rural area. Thus, there is no suppression of facts with intent to evade payment of duty. We also find that the decision of the Tribunal in the case of Pharmanza (India) (2009 (1) TMI 556 - CESTAT, AHMEDABAD) is squarely applicable in the present case. - demand of duty for the extended period of limitation cannot be sustained and the Adjudicating authority rightly dropped the demand for the extended period of limitation. The demand of duty with interest for the normal period of limitation is upheld. - Adjudicating authority directed to requantify the demand for the normal period of limitation as contended by the Assessee - Appeal disposed of.
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2015 (11) TMI 1408
Reversal of CENVAT Credit - GTA service - Whether the appellant is required to reverse credit availed on GTA services on HR coils cleared as per Rule 3(5) of Cenvat Credit Rules, 2004 - Held that:- Decision of the Tribunal in the case of Lacto Cosmetics (Vapi) Pvt.Ltd. (2012 (12) TMI 642 - CESTAT AHMEDABAD ) as well as the decision of Punjab & Haryana High Court in the case of CCE, Chandigarh-I vs.Punjab Steels (2010 (7) TMI 252 - PUNJAB AND HARYANA HIGH COURT). The decision of the Tribunal in the case of Lacto Cosmetics (Vapi) Pvt.Ltd. is per incuriam and is not applicable to the facts of this case. With these terms, the appellant is not required to reverse credit on GTA services as per Rule 3(5) of Cenvat Credit Rules, 2004. Accordingly, the impugned order is set aside - Decided in favour of assessee.
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2015 (11) TMI 1407
CENVAT Credit - Relevant documents - whether respondent is entitled to take Cenvat credit on the strength of the attested copy of Bill of Entry or not - Held that:- There is no dispute that duty has been paid by the respondent themselves and goods have been received by them. Therefore, Cenvat Credit cannot be denied to the appellant. Moreover if there is no dispute on the bills of entry same can be verified from the Revenue’s record. - infirmity with the impugned order. Same is upheld - Decided against Revenue.
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2015 (11) TMI 1406
CENVAT Credit - whether the appellant is eligible for the benefit of CENVAT credit of ₹ 1,20,542/- for the period from October 2006 to November 2010 in respect of welding electrodes which were used for maintenance and repair of plant and machinery - Held that:- Since the Hon'ble Supreme Court [2010 (11) TMI 34 - SUPREME COURT OF INDIA] has referred the issue to the Larger Bench in view of the fact that there were contrary views earlier, the demand relating to extended period cannot be sustained. In this case, the show cause notice was issued on 23.12.2010 whereas the period for the demand relates to 1st October 2006 to November 2010. The entire demand is beyond the normal period of limitation and in view of the fact that there were several decisions in favour of the assessee during the period and matter has been referred to Larger Bench by the Hon'ble Supreme Court, the appellant succeeds on limitation itself. - Decided in favour of assessee.
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2015 (11) TMI 1405
Admissibility of cenvat credit - House Keeping and Gardening Services - Held that:- In view of the settled preposition of law, as per the relied upon judgments [2010 (1) TMI 301 - CESTAT, BANGALORE], [2011 (4) TMI 1122 - KARNATAKA HIGH COURT] & [2013 (6) TMI 618 - ITAT DELHI] cenvat credit of Housekeeping Service and Gardening Services is admissible to the appellant - Decided in favour of assessee.
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2015 (11) TMI 1404
Denial of CENVAT Credit - Capital goods - Improper documents - Held that:- Importer has filed declaration before the Revenue authorities that the goods entered in the bill of entry have been transferred to the appellant. Moreover, the invoice has been issued in favour of the appellant for transfer of the goods for the appellant. Therefore, I hold that the appellant has correctly taken the credit on the strength of document showing duty paying character of the goods. As the duty paid on the goods has not been disputed - Decided in favour of assessee.
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