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Showing 501 to 520 of 2046 Records
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2018 (10) TMI 1549
Clandestine removal - shortage of raw material, finished goods and capital goods - appellant allegedly removed raw material and capital goods to their job worker which are their own unit and inputs were also removed to their godown outside the factory - demand also based on LRs.
Demand of ₹ 27,466/- on the shortage of finished goods - Held that:- This demand is based on the shortage found out during the physical stock verification by the officers in the presence of representative of the appellant - Since the shortage was not disputed at the time of punchnama and thereafter no explanation was made, demand confirmed on shortages of ₹ 27,466/- is sustainable - demand upheld.
Demand of ₹ 14,93,495/- on the raw material and capital goods seized on job workers premises as well as godown of the appellant - Held that:- If it is established on the basis of documents that the goods which were seized were brought back to the appellant’s factory and the same were used in the manufacture of final product which were cleared on payment of duty, then no demand shall exist. Consequently, no penalty will be imposable - this issue needs to be reconsidered on the basis of verification of the documents - matter on remand.
Demand of ₹ 13,28,814/- based on LRs - principles of natural justice - Held that:- Except the transporters’ LRs and statement, there is no other evidence. The LRs submitted by the transporters is a 3rd party document which can only be relied upon after cross examine the said transporters - In the present case it is not only a 3rd party evidence but even the appellant also disputed the same and requested for cross examination. In such a situation, it was necessary for the adjudicating authority to grant the cross examination. By not allowing the cross examination, there is a clear violation of principles of natural justice - matter requires reconsideration.
Appeal disposed off.
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2018 (10) TMI 1548
Clandestine removal - shortage of scrap - whole allegation is based only on ER-4 return - case of assessee is that it is a case of a bona fide clerical error which could have been verified with regard to the ER-1 returns - Held that:- There was no allegation by the Revenue that there was any such mistake or difference unearthed even in ER-1 returns. Unfortunately, there is also no finding on the appellant’s stand right from its reply to the Show Cause Notice that the appellant had furnished ER-1 returns for the year, Form-IV Register, chart reflecting purchase and usage of raw material/removal of raw material as such, etc., along with its replies to Show Cause Notice. The Revenue has not taken any supporting evidence to nail the assessee on the alleged difference in stock in ER-4 return which only points out that no further investigation was done in the interests of justice.
It is the settled position of law that the allegations/assumptions howsoever strong, cannot take the place of proof - The Revenue has only harped upon the difference in closing stock of raw material, but nothing prevented the Revenue from examining the balance-sheet for the year filed with the Income Tax Department vis-à-vis the appellant’s ledger account filed therewith or the revised ER-4 return.
The demand on the alleged difference cannot sustain - appeal allowed - decided in favor of appellant.
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2018 (10) TMI 1547
CENVAT Credit - input services - construction of warehouse within the factory premises - repair and maintenance of Automatic Dispensing Machines (ADM) installed at the dealer’s premises - It is the case of Revenue that the maintenance of these machines which are beyond the stage of manufacture and place of removal does not entitle the appellant to credit of service tax paid on maintenance of these machines - time limitation.
Construction of warehouse - Held that:- In this case the warehouse in question was built within the factory premises and I do not find any force in the argument of the Revenue that simply because the warehouse is not meant for manufacture the appellant is not entitled to the credit of service tax. The warehouse being prior to the place of removal, the service tax paid on construction of the same is available to the appellant the demand on this count therefore needs to be set aside - credit allowed.
Maintenance of ADMs - Held that:- These are used in relation to the business by the dealers of the appellant and not by the appellant himself. The manufacture and clearance of their products is complete the moment of the goods leave the factory or other place of removal. What happens thereafter is not part of the manufacture although it may be part of the business of the appellant - appellant is not entitled to the credit of service tax or the maintenance of ADMs at their dealers premises which are beyond the place of removal.
Time limitation - Held that:- The nexus between irregularly availed CENVAT credit on such input services and their intention to evade Central Excise duty is apparent from the face of the record - the extended period of limitation is invokable in this case.
Appeal allowed in part.
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2018 (10) TMI 1546
CENVAT Credit - input services - services used in their windmill situated at a site near Belgaum, which is at a distant place outside the factory - Held that:- This issue is settled in favour of the assessee by various decisions of the Tribunal - reliance placed in the case of CCE vs. V. S. Lignite Power Ltd. [2018 (4) TMI 1082 - CESTAT NEW DELHI], where it was held that the assessee-Respondents will be entitled to the credit of Service Tad paid on such mining and transportation upto the point of weigh bridge - appeal allowed - decided in favor of appellant.
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2018 (10) TMI 1545
Valuation - Precision Pipes/Tubes falling under Chapter 73 of the Central Excise Tariff Act - Revenue’s only grievance that such remanant pipes emerging at the depots end were of lesser value than the value of regular pipes and as such lesser duty should have been paid by the depots, in which case lesser credit would be available to the respondents - Held that:- Revenue is not denying the fact that the issue is covered by the earlier order of the Tribunal in the same assessee’s case but submits the view adopted by the Tribunal is not correct. The issue stands decided by the Tribunal by relying upon the earlier Hon’ble Supreme Court’s order. As long as the Tribunal’s order has not been set aside by the higher Appellate Forum, the same holds the field - impugned order upheld.
CENVAT Credit - welding electrodes - Held that:- The issue is covered by various decisions of the High Courts, where on similar issue, credit is allowed - credit allowed.
Appeal dismissed - decided against Revenue.
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2018 (10) TMI 1544
Area based expansion - substantial expansion or not - N/N. 50/03-CE dt.10.6.2003 - it appeared to the Revenue that there was no substantial expansion by increasing installed capacity by more than 25% - contention of the appellants is that there is no such requirement under clause (b) of para 2 of the said notification.
Held that:- We have perused the record and seen recommendation by the jurisdictional Range Superintendent and also report submitted by the team of the District Industries Centre that the installed capacity was increased by 31% - thus the condition of the notification was satisfied by the appellant.
Without going into the issue of limitation, it is held that the appellants were eligible for exemption under Notification No.50/03-CE dt.10.6.2003 for the period covered by the present appeals - appeal allowed - decided in favor of appellant.
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2018 (10) TMI 1543
CENVAT Credit - duty paying invoices - input services availed by their head office located at Kandivali, Mumbai, which was registered as ISD under Rule 4(A) of the Service Tax Rules.
Whether the invoices issued by the assessee’s head office, which is also registered as ISD, can be held to be eligible cenvatable invoices, even if the same relate to various services received at the head office and is not connected with the assessee’s manufacturing unit?
Held that:- The issue is no more res integra and stands settled by the Tribunal’s decision in the case of ECOF Industries Pvt. Ltd. vs. CCE, Bangalore [2009 (10) TMI 171 - CESTAT, BANGALORE], where it was held that the distribution of credit by input service distributor to a unit where the services were not availed, cannot be question in terms of Rule 7 of the Cenvat Credit Rules, 2004 - Admittedly, in the present case, the assessee’s final product is neither exempted nor the credit stands availed in excess of the tax paid.
Credit cannot be denied - appeal dismissed - decided against Revenue.
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2018 (10) TMI 1542
100% EOU - short payment of Additional Duty of Customs - the assessable value in respect of the goods cleared to their sister units was enhanced / re-determined - extended period of limitation - scope of SCN - Held that:- It is clear that in the earlier SCN dt. 22.10.2007 the department had not raised the allegation of extended period of limitation. It is only in the corrigendum issued to the said SCN that they have invoked proviso to Section 11AC of Central Excise Act 1994 for the period 1.3.2006 to 10.10.2006.
The Commissioner (Appeals) has therefore rightly concluded that as the dispute was already in the domain of the department, the of allegation of suppression cannot be fastened on the respondents.
The decision of the Commissioner (Appeals) in holding that the demand made in the SCN for the same period is hit by time-bar - Appeal is dismissed upholding the ground of limitation without going into merits.
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2018 (10) TMI 1541
Benefit of N/N. 67/95-CE dt. 16.06.95 - Supply of industrial valves to Mega Power Projects - demand of Excise duty under N/N. 12/2012-CE dt. 17.03.2012 as amended - Held that:- The matter id covered by the decision in the case of Bharat Aluminium Co.Ltd. Vs CCE Raipur [2017 (4) TMI 276 - CESTAT NEW DELHI], where it was held that The exclusion made under sub-clause (vii) of sub-rule (6) of Rule 6 of CCR, 2004 read with proviso to N/N. 67/95 makes it clear that the exemption for captive consumption of intermediate products has been correctly claimed by the appellant in the present case - appeal allowed - decided in favor of appellant.
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2018 (10) TMI 1540
CENVAT Credit - inputs/input services used for dutiable and exempted service - Rule 6(2) of CCR, 2004 - Held that:- Rule 6 gives three options to the appellant to reverse the credit and it is the option of the assessee to choose any option which is beneficial to him if he is unable to maintain separate books of accounts and demanding 6% of the value of exempted goods and services is not sustainable in law.
The appellant has given the calculation in the ground of appeal that as per the appellant, the total amount credit to be reversed proportionately comes to ₹ 49,647/- which he has already reversed and therefore, the demand of 6% on the value of exempted services is not tenable.
This needs to be remanded back to the original authority to verify whether the appellant has reversed the proportionate credit as claimed by him as per Rule 6(3A) of the CCR, 2004 - appeal allowed by way of remand.
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2018 (10) TMI 1539
Benefit of exemption N/N. 10/97-CE, dated 01.03.1997 denied - invocation of extended period of limitation - Essentiality Certificate not issued by Registrar - Clearances made for non-research of dual purpose - Purpose not mentioned in the certificate - No evidence that the Institutions are registered with DSIR.
Held that:- The original authority has taken a broader view of the intent of the exemption notification No. 10/97 and allowed the benefit of notification while admitting that some documents as required under notification such as Registration Certificate of DSIR or the specific purpose for which equipment is supposed to be used were missing.
In view of the law laid down by Hon’ble Apex Court in the case of Dilip Kumar & Company [2018 (7) TMI 1826 - SUPREME COURT OF INDIA], the entitlement of the exemption notification has to be examined and strictly consider with reference to each of the clearances which requires detailed examination of the documents - this is a fit case to be remitted back to the original authority for reexamination in the light of the laws laid down by Hon’ble Apex Court in the case of Dilip Kumar & Company and Others - appeal allowed by way of remand.
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2018 (10) TMI 1538
Valuation - Ingots and Billets/ Non alloys steel Hot-re-rolled products - Changed parameters - re-quantification of demand - Rule 4 of Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 - Held that:- Except for the re-quantification as directed by the Tribunal, nothing was open either for the Assistant Commissioner or the Commissioner (Appeals) to deviate from the directions given by the Tribunal. The lower authorities have relied on the decision of Hon'ble Supreme Court in the case of Doaba Steel Rolling Mills [2011 (7) TMI 10 - SUPREME COURT OF INDIA]. In this regard, we find that the decision in the case of Doaba Steel Rolling Mills cannot be made applicable in the present case when the Tribunal’s order in the appellant’s own case has attained finality as the department has not challenged the said order. Therefore, even though there is contrary view taken by the Hon'ble Supreme Court, the same will not apply in the present case.
Whereas, in the present case itself, the order was passed and therefore, ratio of the decision of Hon'ble Supreme Court is not applicable in the facts of the present case. The only right course of action on the part of the Revenue was to challenge the Tribunal order and if the Revenue chose not to challenge the said order then that order attained finality and it cannot automatically be set-aside on the basis of adverse order in some other party’s case.
Both the lower authorities have gravely erred in not following the Tribunal’s directions for re-quantification of duty on the basis of changed parameters, in terms of Rule 4 of Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 - the Assistant Commissioner is directed to re-quantify the demand in terms of Tribunal’s order - appeal allowed by way of remand.
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2018 (10) TMI 1537
CENVAT Credit - fake invoices - only paper transactions, no receipt of goods - denial of opportunity to cross-examine - principles of natural justice - Held that:- The department tried to establish that the appellant have not received the goods and they have only received the invoices on the basis of which the credit was availed. To establish the said charges, the statements of various persons were recorded and cross-examination of the said persons has been sought by the appellants. The Adjudicating Authority rejected the request of cross-examination, at the same time he relied upon all the statements for adjudicating the show cause notice.
In terms of Section 9D of the Central Excise Act, 1944, if the Adjudicating Authority wants to rely upon any statement, it is incumbent upon him to test the witness before relying upon the statement - In the present case, it is more necessary when the appellants themselves have asked for cross-examination of the witnesses.
The matter is remanded to the Adjudicating Authority for passing a fresh order after granting cross-examination of witnesses as requested by the appellants - appeal allowed by way of remand.
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2018 (10) TMI 1536
Penalty - irregular availment of credit - reversal with interest on being pointed out - extended period of limitation - Held that:- The appellants have availed the CENVAT credit wrongly but the same was reversed along with interest after being pointed out by the audit party - Once the appellant has reversed the credit along with interest before the issuance of show-cause notice, then as per Section 11A(2), the Department should not have issued the show-cause notice.
Further, Department has not brought any material on record to show that there was suppression of fact with intent to evade duty.
Penalty not sustainable - appeal allowed - decided in favor of appellant.
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2018 (10) TMI 1535
Penalty u/r 15(2) of CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 - CENVAT credit on Customs Education Cess and Customs Secondary Education Cess - reversal with interest on being pointed out - Held that:- The department has not been able to bring any material on record to show that the appellant has a mala fide intention to take the CENVAT credit wrongly - The department vide its Board Circular No.137/46/2015-ST dated 18.8.2015 wherein also the Board has clarified that in cases not involving fraud, suppression of facts, etc., if the assessee pays the tax along with interest either within 30 days from the date of issuance of show-cause notice or before the issue of show-cause notice, then in such cases, proceedings shall be deemed to be concluded.
Penalty not imposable - appeal allowed - decided in favor of appellant.
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2018 (10) TMI 1534
CENVAT Credit - inputs procured from 100% EOU - Payment of education cess/ higher education cess third time - credit paid by the appellant on education cess/ higher education cess sought to be denied on the ground that the supplier of goods was not required to pay duty on the said goods - Held that:- Similar issue came up before this Tribunal in the case of Polypack Industries vs. CCE, Belgaum [2013 (8) TMI 956 - CESTAT BANGALORE], wherein it has been held that third time cess which is payable according to the department on the ground that what is required to pay by 100% EOU is Excise duty and total Excise duty arising only after the calculation of equal amount of custom duty. If third time education cess is considered as levy of the total excise duty, therefore credit is admissible to the appellant.
The appellant is entitle to avail the Cenvat credit on third time education cess paid by them on inputs procured from 100% EOU - appeal allowed - decided in favor of appellant.
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2018 (10) TMI 1533
CENVAT Credit - fake invoices - Cenvatable invoices of non-ferrous materials to the manufacturers without delivery of the goods - Held that:- The Department is not supposed to establish a fact with mathematical presumption as has been impressed upon by the adjudicating authority below but simultaneously the onus to falsify the document of the appellant still rests upon the Department and the adjudication cannot be decided merely based on the presumptions - In the given circumstances where the documents as produced by the appellant showing that they have received goods in the factory which were duly accounted in the books of accounts have not been rebutted. There seems no reason for holding that the unaccounted credit has been availed by the appellant.
Time limitation - Held that:- Once there is no evidence for the alleged availment of irregular credit, per contra the evidence reflects the regular purchase of goods under proper invoices with the payment of appropriate amount of Central Excise Duty, there remains no genuine and legal basis for holding the alleged suppression or mis-representation of the facts on the part of the appellant that too with an intention to evade payment of duty - The show cause notice is therefore held to be barred by time and the penalty imposition based on the said ground is also held not sustainable.
Appeal allowed - decided in favor of appellant.
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2018 (10) TMI 1532
SSI Exemption - dummy unit - Clubbing of clearances - Department made out a case that M/s. Ganesh Enterprises is owned by proprietor Shri Yogesh Chandradutt Dhariyal and therefore, M/s. Ganesh Enterprises is not entitled for SSI exemption - issue can be solved on the basis of classification of product itself.
Held that:- Reliance placed in the coordinate bench of this Tribunal in the case of Dhariyal Chemicals [2014 (8) TMI 81 - CESTAT AHMEDABAD].
From the above decision, it is observed that the product of the appellant is identical to the product involved in above judgment of the Tribunal - As per the department itself, M/s. Ganesh Enterprises and M/s. Dhariyal Chemicals belong to one person i.e. Shri Yogesh Chandradutt Dhariyal. In the show cause notice also, it is admitted that the product of M/s. Dhariyal Chemicals and M/s. Ganesh Enterprises is identical. It is also observed that the ingredients used for manufacture of product by both the units are the same and resultant product is also the same. Therefore, in view of the judgment of this Tribunal in the case of Dhariyal Chemicals the product in the appellant’s case is also clearly classifiable under Chapter heading 47 which attracts nil rate of duty. Therefore, there is no need to go to the question of limit of SSI exemption.
Since, the department’s proposal is to club the clearances of M/s. Dhariyal Chemicals and M/s. Ganesh Enterprises, but the clearances of M/s. Dhariyal Chemicals has been held as nil rated under Chapter heading 47, therefore, the same needs to be deducted from the aggregate value of M/s. Dhariyal Chemicals and M/s. Ganesh Enterprises. The yearly turn-over of M/s. Ganesh Enterprise is well within the limit of ₹ 1.5 Crores, therefore, even if it is assumed that the product of M/s. Ganesh Enterprises is dutiable, but when the products of M/s. Dhariyal Chemicals is not dutiable, the clearances of M/s. Ganesh Enterprise is eligible for SSI Exemption Notification No. 8/2003-Central Excise.
Appeal allowed - decided in favor of appellant.
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2018 (10) TMI 1531
Principles of natural justice - appellant filed an appeal before the Commissioner (Appeals) contending that they had not been provided with the "working paper" enclosed with the show cause notice - Violation of Rule 7 of Valuation Rules, 2000, read with Rule 4 of Central Excise Rules, 2002 - Held that:- From a perusal of the order dated 15 December, 2008 passed by the Assistant Commissioner, Central Excise, Division-I, Allahabad that there is no statement that a copy of Annexure-A which was said to have been enclosed with the show cause notice was actually served upon appellant. The order merely mentions that despite personal hearing fixed for 14 February, 2008, 21 February, 2008 and 27 February, 2008, the party did not appear and nor did it substantiate its claim by providing any chart. The Commissioner (Appeals) has also not recorded any finding that Annexure-A was supplied to the appellant.
The order passed by the Commissioner (Appeals) on 24 September, 2007 requiring the department to supply the working sheet was therefore, not complied with. The impugned orders dated 23 August 2011 and 15 December 2008, therefore, cannot be sustained and deserve to be set aside - appeal allowed.
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2018 (10) TMI 1530
Clandestine manufacture and removal - MS Ingots - excess consumption of electricity - Held that:- The initial demand of ₹ 14,39,38,470/- has already been dropped to the major extent of ₹ 13,62,85,928/- qua excess consumption of electricity, relying upon the decision of Hon’ble Apex Court in the case of RA Castings Pvt. Ltd. [2011 (1) TMI 1302 - SUPREME COURT OF INDIA] - similar issue is no more res-integra as stand already been decided in favour of assessee.
Case of the Revenue based upon the records recovered from M/s Monu Steels M/s. Kailash Traders etc. - Held that:- Mr.S.K. Pansari during his cross-examiantion also didn’t deny this fact rather admitted that all the recovered documents were written by Mr. Bal Mukund. Department has failed to obtain any document, as direct evidence, to corroborate the said recovered record. The same also finds mention in the order under challenge - the Revenue has not made any other enquiries and has solely relied upon the entries made in the record of M/s Monu Steels. Similarly for the record from M/s. Kailash Traders as far as the raw material is concerned, Department couldn’t have any other corroborative piece of evidence.
The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established.
Appeal allowed - decided in favor of appellant.
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