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Case Laws
Showing 481 to 500 of 1764 Records
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2016 (11) TMI 1286
Refund claim - duty on Sub-Standard Kraft Paper mistakenly - ignorance of Notification No. 217/86-CE dated 01.031986 - time bar - whether unjust enrichment will be applicable to the refund of the duty finalized after 25.06.1999 but pertaining to the period prior to 25.06.1999? - Held that: - The issue whether unjust enrichment will be applicable to the refund of the duty finalized after 25.06.1999 but pertaining to the period prior to 25.06.1999 was held to be in favour of the assessee by the Larger Bench of Tribunal in the case of Panasonic Battery India Company Limited [2013 (9) TMI 652 - CESTAT AHMEDABAD], where it was held that the doctrine of unjust enrichment will, therefore, not be attracted to the refunds pertaining to the finalization of provisional assessments for period prior to 25/06/1999 when the linking proviso under Rules 9B(5) of Central Excise Rules 2004 was not existing. The linking provision under proviso to Rule 9B(5) was made by an amendment with effect from 25.06.1999 and will be applicable only w.e.f. 25.06.1999 - the refund cannot be credited to the Consumer Welfare Fund enrichment. The impugned order is set aside and I hold that the appellant is eligible for sanction of refund - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1285
CENVAT credit - job-work - capital goods - CENVAT credit on depreciation on the duty part of the value of capital goods - Held that: - The provision of Rule 4(4) of Cenvat Credit Rules, 2004 does not bar the assessee form taking cenvat credit on capital goods in the subsequent year after availing benefit of depreciation under IT Act in the year of receipt of capital gods. The respondent has earned credit of ₹ 17,07,038/- in the year of receipt of capital goods. He would be eligible for credit of 50% in the same year and the balance 50% can be availed in the subsequent year. In that case, the contention of department that the respondent can avail only 50% of the balance of ₹ 12,32,337/- in the subsequent year, lacks legal basis - CENVAT credit allowed - decided in favor of respondent-assessee.
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2016 (11) TMI 1284
Reversal of CENVAT credit - Rule 3(5B) of the Cenvat Credit Rules, 2004 - availing credit without paying duty to the supplier - amount booked as extraordinary income - Held that: - The appellants having decided not to make payment to the vendors, for whatever reason that may be, it is equal to a situation of writing off the inputs especially when they have accounted the amount as ‘extra-ordinary income’. This income amount includes the duty portion of the goods also. Therefore, appellant ought to have reversed the credit along with interest as they have not paid the duty on the goods. The facts reveal that the appellant have attempted to avail credit without paying duty in the guise of accounting the same as ‘extra ordinary income’. The availment of credit without paying duty on the goods has resulted in a situation of loss of revenue. The facts of the case present an isolated situation and the contention of the appellant that writing off of the dues to the vendor is not the same as writing off of inputs and that Rule 3(5B) is not applicable is not tenable.
Circular No.877/15/2008-CX dated 17-11-2008 regarding reversal of Cenvat credit in the case of trade discount, and therefore, is not at all applicable. Be that as it may, the circular clarifies that by way of discount if price is reduced and consequently duty is also reduced, the reduced excise duty only will be available as credit. In the present case, the appellant not having paid the duty, the credit cannot be availed at all.
Appeal dismissed - decided against appellant.
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2016 (11) TMI 1283
Manufacture – excisibility of waste, scrap and parings of paper and paperboard arising during manufacture of empty boxes with use that paper and paperboard - Held that: - We find that the appellant is not engaged in the manufacture of any paper or paper board. These items were their inputs procured after payment of Cenvat Credit duty. These inputs were put to intended use in appellant s factory. In such a situation this is not tenable to hold that appellant was engaged in the manufacture of waste and scrap of paper. We note the similar dispute was before the Tribunal in the case of WIMCO Ltd. vs CCE Lucknow [2008 (7) TMI 108 - CESTAT NEW DELHI], where it was held that These scrap/waste/paring also cannot be considered as intermediate product or by product during the course of manufacture of any excisable goods - scrap of paper cannot be considered as a product different from the paper - Mere mentioning in the tariff is not sufficient to attract excise levy.
Appeal allowed - decided in favor of appellant-assessee.
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2016 (11) TMI 1282
Refund claim - reversal of cenvat credit wrongly - whether the appellant is required to reverse the CENVAT credit availed on inputs and input services attributable to LPG cleared by availing exemption under Notification No. 4/2006-CE dated 01.03.2006 during the period May, 2007 to April, 2008 or other wise? - Held that: - the contention of the appellant cannot be acceptable as there is a specific mention of reversal of CENVAT credit attributable to inputs and input services under Rule 6 (3)(a)(viii) of CCR, 2004 where the Appellants fail to maintain separate records. Reading the definition of the ‘exempted goods’ prescribed at Rule 2(d) of the said CCR Rules,2004 and the said provisions it cannot be said that LPG exempted or chargeable to NIL rate of duty are not required to reverse proportionate CENVAT credit on the inputs attributable to the exempted product. In the present case, the appellant are well aware of the quantum of CENVAT credit on inputs and input services used in our in relation of LPG used for domestic purpose and accordingly reversed the same periodically as per the said Rules - refund not allowed - appeal rejected - decided against appellant-assessee.
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2016 (11) TMI 1281
CENVAT credit - forged invoices - Held that: - On going through the observation made by this Tribunal, the matter was remanded back to the adjudicating authority for de novo adjudication on the issue. There was no specific direction to the appellants to prove that they have received the goods. In that, circumstance, the argument advanced by the learned AR is not tenable. Further, I find that the statements of the appellants have not been controverted by any cogent evidence. In that circumstance, statements made by the appellants have evidentiary value. Moreover, the crucial statement of the transporter has not been recorded. In these circumstances, if the statement of the transporter would have been recorded the truth may come out to adjudicate the case. In the absence of such crucial; evidence, the benefit of doubt goes in favour of the appellants. In these circumstances, I hold that the credit cannot be denied to manufacture/buyers. Consequently, no penalty is imposable on all the appellants - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1280
Demand - credit availed on capital goods and welding electrodes - time bar - Held that: - proper description of the inputs and capital goods along with the Tariff Heading have been given. Further the nature of input whether raw material, component, packing material, catalyst etc. have also been given. Simultaneously the utilisation of input for particular capital goods have also been specifically given. Having considered the rival contentions I find that no case of non-declaration or mis-declaration is made out on the part of the appellant. I further find that there is no specific allegation of the revenue as to what detail was lacking which the appellant did not furnish to the revenue. The findings of the lowers Courts holding suppression of facts in regard to material which was used, while filing declaration is perverse, as is evident from the facts on record. Under these facts and circumstances I hold that the appellant had made adequate declarations in the prescribed returns at the time of taking credit and accordingly the extended period of limitation is not invokable. In this view of the matter the demand in dispute being wholly attributable to the extended period is set aside. Accordingly the impugned order is set aside and the appeal is allowed. The appellant should be entitled to consequential benefits, if any, in accordance with law.
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2016 (11) TMI 1279
CENVAT credit - bogus registered dealers - Held that: - the department sought to deny Cenvat Credit to the appellants on the basis of fact that the registered dealer from whom the goods have been procured by the appellants found to be non-existent. It is not the case of the Department hat appellants have not received the goods. In fact, no investigation has been conducted at the end of the appellants to ascertain they have received the goods or not. Revenue has not made any investigation at the end of the manufacturer supplier of the goods. No investigation was conducted at the transporter of the goods or at the premises of the appellants to reveal the truth. No cross examination of the registered dealer was granted to the appellants to reveal the truth. In these circumstances, Cenvat Credit cannot be denied to the appellants on the basis of deficient investigation - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1278
Levy of excise duty - activity of packing/repacking of auto parts - Held that: - I find that as the appellant has claimed that on 31.5.2006, there was inventory of stock of finished goods the same was required to be considered by the adjudicating authority and if the same is excluded from the total turnover of the impugned period, in that circumstance, the turnover fall below the threshold limit of SSI exemption of Notification No.8/03-CE, the appellant is not liable to pay duty. These facts are required to be verified by the adjudicating authority. Therefore, the matter is remanded back to the adjudicating authority to verify the facts as discussed above, on the basis of the documents produced by the appellant. Other issues are kept open for both sides to be agitated before the adjudicating authority - appeal disposed off by way of remand.
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2016 (11) TMI 1277
Doctrine of merger of appeals - scope of the word "accordingly" used in the order of the Apex Court - appellant contended that, When Revenue failed to succeed before apex court against final order of Tribunal, that order merged in the order of Apex court. Present appeal being a consequence of the final order of Tribunal, there is nothing more to be contested by Revenue today. - Pre-deposit - Held that: - the word "accordingly" used in that order is with reference to the matters covered against Revenue. Hence, Revenue cannot plead today that the merits of the order passed by the Tribunal has not received scrutiny of the apex court. - the order of the Tribunal having merged in the dismissal order of the apex court, this Bench has no jurisdiction to touch the merits of the case again and there is no further scope for Revenue to reopen its case. Accordingly the miscellaneous application is rejected and Appeal of the appellant is allowed.
At this juncture, it is submitted on behalf of Revenue that it may be granted opportunity to realize its dues. It may be stated that there is no bar in law to take appropriate action under law, if that is not otherwise barred.
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2016 (11) TMI 1276
CENVAT credit - recovery - Subsection 1 of Section 11A of Central Excise Act, 1944 - Held that: - the packing of sugar into 1 & 5 kgs pack is done in the factory premises. The goods when brought into such packing division are again entered into RG-I Register and subsequently packed into 1 & 5 kgs packs. The clearance of such goods from factory on payment of a specific rate of duty. The packing material on which Cenvat Credit was availed were used for packing of goods into 1 & 5 kgs. pack within the premises of factory.
The ratio of the ruling of Hon’ble High Court of Chhattisgarh in the case of Advani Oerlikon Ltd. [2012 (12) TMI 266 - CHATTISGARH HIGH COURT] is squarely applicable in the present case where it was held that the item “Hot Melt Unit”was admittedly used by the assessee while packing their finished goods – “welding electrodes”. Since packing is held to be one of the essential components of the manufacturing process of the finished goods and being in the nature of incidental or/and ancillary to the main manufacturing activity, the assessee in this case was rightly held entitled to claim Modvat credit on the item- “Hot Melt Unit” treating the same as capital goods under the Rule 57Q ibid for claiming benefit.
The packing is activity incidental or/and ancillary to the main manufacturing activity. Therefore, Cenvat Credit of duty paid on inputs used for packing sugar in 1kg & 5 kg packs is admissible to the appellant - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1275
Valuation - short-payment or recovery of differential duty - Altec Expectorant 100 ml - principal-to-principal sale - Held that: - he appellant has discharged duty liability by arriving at the assessable value wherein the appellant has considered cost of raw materials, packing material, cost of conversion charges and the profit margin. It is the case of Revenue that this price is very low considering the fact that M/s Lyka Hetero Healthcare Ltd has sold these products at a very high price - during the period in question, April 2002 to January 2003, P&P medicaments were not covered under the regime of Section 4A of the Central Excise Act, 1944 and the duty liability was to be discharged under the provisions of Section 4 of the Central Excise Act, 1944, which mandated the determination of the assessable value after ascertaining the normal price. Secondly, there is no dispute that the appellant is manufacturing “Altec Expectorant 100 ml” on an agreement entered with M/s Lyka Hetero Healthcare Ltd. During the period in question, there is also a factual matrix recorded that the discharge of the duty liability by the appellant is on the raw material + packing material + conversion charges and the margin of profit. This formula for discharge of duty liability is for goods manufactured on principal-to-principal agreement, is a settled law by the apex Court in the case of Ujagar Prints [1989 (1) TMI 124 - SUPREME COURT OF INDIA]. We find that the entire issue stands covered by the judgment of the apex Court in the case of Ujagar Prints. There is no dispute that the appellant has discharged duty liability based upon the formula as has been settled by the apex Court in the case of job-work manufacturer - appeal allowed.
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2016 (11) TMI 1274
Classification of goods - Cetraben Cream - whether classified as medicament or as cosmetics? - Held that: - the said product would merit classification under chapter 30 by recording that the ingredients used in the manufacturing of the product are mentioned in different pharmacopoeia and letters of medical practitioners based in India and abroad indicate the product in question is a medicament - appeal allowed.
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2016 (11) TMI 1273
Denial of CENVAT credit - angles, channels, joist, beam etc - Held that: - in the present appeal, the emphasis by Revenue that only immovable structure emerges after fabrication is misplaced. Most of the capital goods are to be held in place for their operation. It is no ones case that products which are to put in place firmly for further operation will automatically become immovable property. No such sweeping assertion can be made without examining the nature of machinery or structure or in the manner of installment. We find no evidence in the present appeal to arrive at contrary view against the findings of the lower authorities - appeal dismissed - decided against Revenue.
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2016 (11) TMI 1272
Unjust enrichment - refund of credit which was reversed under protest during dispute - Held that: - I find that the original dispute raised by the department is that the admissibility of Cenvat credit in respect of packing material. Due to the dispute, appellant reversed the Cenvat credit. Tribunal. Accordingly, amount reversed was claimed as a refund. I find that this is not a case of refund of excise duty paid on final product whereas originally it is an amount of Cenvat credit which was reversed under protest and on succeeding, the appellant claimed refund. In my considered view, even there is no need of filing refund claim in case of succeeding in a matter of dispute on Cenvat credit. In the present case, even if the amount is towards reversal of Cenvat credit but it is as good as availment of fresh Cenvat credit therefore unjust enrichment is not applicable for availment of Cenvat credit. In the present case also refund of Cenvat credit need not to be under gone the test of unjust enrichment.
Appeal allowed - decided in favor of appellant-assessee.
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2016 (11) TMI 1271
Detention of consignment - re-rollable scrap - the weight of the consignment was shown as 96.750 MTs of heavy melting scrap whereas it was found as 106.200 MTs - Held that: - on examination part of the consignment was found re-rollable scrap but the appellant has placed an order for supply of Heavy Melting Scrap and the certificate of origin also certifies the same. The appellant has actual used the said goods as Heavy Melt Scrap. Without any contrary evidence on record, I hold that goods are not liable for confiscation on this ground. Further, I find the charge of mis-declaration of weight. I find that as during the examination goods were found in excess to the declared weight, therefore, the goods are rightly held liable for confiscation by the lower authorities. Therefore, I do agree with the impugned order that on account of excess weight, the goods are liable for confiscation. As the goods impugned are not restricted goods therefore, they can be released on payment of redemption fine and penalty. Further, I find that the redemption fine & penalty imposed on the appellant highly excessive and the goods cannot be held liable for confiscation on the change of mis declaration of description, I reduce the redemption fine to ₹ 40,000/- and penalty to ₹ 15,000/- - appeal allowed - decided partly in favor of assessee.
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2016 (11) TMI 1270
Valuation - enhancement of value - Rule 6 of the Customs Valuation Rules, 1988 - Indonesia Copra Expeller Cake - The importer has totally imported 4000 MTs of Copra Expeller Cake. Out of this, quantity of 3000 tonnes have been imported at US $ 146 per MT whereas the balance 1000 MTs has been imported at a higher value of US $ 165 per MT. Revenue has enhanced the value of that portion of the imported cargo to the extent of 3000 MTs to US $ 165 per MT from US $ 146 which is the price paid for the balance 1000 MT - Whether enhancement of value justified? - Held that: - the Revenue authorities have enhanced the value without giving proper justification for rejecting the transaction values. The enhancement of values ordered by the lower authorities appears to be in the nature of arbitrary and triggered by the fact that some goods stand imported by the importer in the same vessel at different prices. We are of the view that the fact that both the consignments had different prices and have been imported in the same vessel can be no valid reason for disregarding the transaction value. In any case, Revenue has not brought any other documentary evidence to say that the transaction value is to be doubted. The Hon’ble Supreme Court s decision in the case of EICHER TRACTORS LTD. Versus COMMISSIONER OF CUSTOMS, MUMBAI [2000 (11) TMI 139 - SUPREME COURT OF INDIA] support our stand. The impugned order cannot be sustained in the light of Section 14 of the Customs Act, read with Customs Valuation Rules - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1269
Confiscation of imported ship - Import of ship in violation of ITC provisions - the appellant vide letter dated 20.09.2004 requested the revenue to allow the said vessel to be scrapped and broken, and sought permission to file a bill of entry for this purpose. Since Marmagoa port, where the bill of entry was filed, was not designated port for braking up of ships, the revenue rejected the application for such conversion and adjudged the issue as per ITC provisions - Held that: - Proviso to the said section clearly indicates that the importer can waive the show-cause notice. In the instant case the importer has waived the show-cause notice, therefore, it is not necessary that a show-cause notice be issued before confiscation.
It is seen that the motor tanker imported by appellants is powered by 2000BHP engine. In this circumstance, it cannot be said that the said motor tanker is not navigable. In the instant case the engine have been found not in working condition therefore, appellant had obtained a permission to tow the tanker from Marmagoa to Alang - It can be seen from the definition that the term “vessel” includes any ship, boat, sailing vessel or other description of vessel used in navigation. Motor tanker would be covered in the definition of vessel - appeal dismissed - decided against appellant.
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2016 (11) TMI 1268
Rejection of refund claim - time bar - Held that: - any refund application beyond period specified under Section 11B of the Central Excise Act could not be entertained unless the refund was as a consequence of declaration of a provision as unconstitutional - the refund claim filed by the appellant is time-barred - appeal dismissed - decided against appellant.
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2016 (11) TMI 1267
Confiscation of imported goods - imported goods are parts of second hand machine therefore it requires licence for import and clearance of the same - Held that: - I find that purchase order in comparison with the invoices of both the consignment, it clearly established that it is one consignment of second hand machine which has been ordered by the importer and imported accordingly. Even though the part of the second hand machine were imported at JNPT, Nahva Sheva and part imported at New Customs House, Mumbai Port that will not make both the consignment as separate consignment. In terms of Interpretation Rule 2(a), if complete machine is presented unassembled or disassembled, it has to be classified under classification of particular machine and not as parts. In the present case even though the second hand machine has been imported and cleared from two different ports but both consignments put together comprises of one second hand machine which in my view covered in this Rule 2(a) of General Rules for Interpretations therefore the present consignment has to be classified under classification of machine and not as a part, if it is so then no licence is required for clearance of such goods - irrespective of fact that both the consignment were imported on different port at different time will not change the classification of a whole machine. As per my above discussion, I am of the view that consignment in the present appeal is nothing but part and parcel of the machine as a whole and could not be classified and assessed as independent part hence no licence is required, accordingly confiscation is set aside.
Appeal allowed - decided in favor of appellant-importer.
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