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Central Excise - Case Laws

Showing 81 to 100 of 115 Records

• 2011 (10) TMI 189 - CESTAT, AHMEDABAD
  

  Admissibility of Credit on Input - Refund of accumulated credit - 100% EOU converted into DTA - refund claim rejected on the ground that finished product Peanut Butter was totally exempted from of duty - Held - when the duty was paid on input, the appellant was still a 100% EOU and because it was 100% EOU, the appellant was eligible for CENVAT Credit if duty was paid on packing material, input etc.

  Computation of period of limitation of one year - held that:- period of 1 year for the purpose of limitation under Section 11B of Central Excise Act, 1944 has to be counted from the date on which final conclusion is reached that the credit cannot be utilized.

  Condition of export under bond - Held that:- A 100% EOU has to export the goods under bond only, since if it is cleared to DTA unit, Peanut Butter attracted duty. - the condition that the goods should have been exported under bond is fulfilled. - Refund allowed.

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• 2011 (10) TMI 183 - CESTAT, BANGALORE
  

  Imposing Penalty - Assessee is an Exporter - Held - when no duty liability no penalty - omission with regard to LUT and ARE-1 are procedural lapse - when no allegation in show cause notice penalty cannot be imposed.

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• 2011 (10) TMI 165 - CESTAT, MUMBAI
  

  Allowability of Cenvat Credit when input goods have not been received in the factory premises- Transporter delivered the goods to buyers - Held that:-where goods have not reached the appellants premises and have been diverted in-between and, therefore, the credit taken by the appellants without actually receiving the goods is a clear case of fraud and thus credit cannot be allowed.

  Waiver of Pre Deposits of tax pending appeals - Held that:-Where no financial difficulty or hardship is pleaded by the appellants and the evidence available on record does not support the appellant's case, waiver cannot be given. Assessee also liable to pay interest outstanding.

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• 2011 (10) TMI 162 - CESTAT, MUMBAI
  

  Duty liability was discharged on provisional basis - assessee on their own discharged the differential duty liability, on the basis of data which they have supplied to the department for finalization of the assessment-The department is of the view that apart from duty respondents liable to pay interest on the delayed payment of duty under section 11AB - Commissioner (Appeals) set aside the order of the adjudicating authority demanding interest in terms of Rule 8(3) of the Central Excise Rules, 2002 with consequential relief.Held that:- In view of Commissioner of Central Excise, Mumbai vs. ITC Ld. where the assessee pays the differential duty before finalization of assessment on their own, it is only a pre-deposit of duty and not payment of duty, which can be done only after the determination of the duty liability by a proper officer. Such a pre-deposit does not in any way exhaust the interest liability on the assessee from the date on which the duty was required to be paid originally i.e at the time of clearance of the goods from the place of removal and the date on which the duty liability was ultimately discharged. Accordingly the matter was placed before divisional bench for consideration.

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• 2011 (10) TMI 145 - MADRAS HIGH COURT
  

  Default in payment of duty - payment of duty under rule 8(3A) - restriction on utilization of cenvat credit - scope of the expression 'duty' or 'duty of excise' - Held that:- Considering the fact that the first respondent had not considered the claim of the petitioner in the light of the provisions of law thus available, in fitness of things, this Court feels that the contention of the petitioner merits acceptance. Hence, the objection of the Revenue on the maintainability of the writ petition stands rejected. - matter restored for fresh consideration

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• 2011 (10) TMI 142 - CESTAT, MUMBAI
  

  Manufacturer of goods falling under Chapter 84 and 85 of the Central Excise Tariff Act and is a 100% ELU - accumulated CENVAT credit in their CENVAT account and the appellants filed refund claims in respect of such accumulated CENVAT credit - The lower adjudicating authority rejected their refund claim against which they preferred an appeal - should have nexus or integral connection with the manufacture of final products

  As regards maintenance and repair service, it is seen that the maintenance and repair has been undertaken in respect of the office equipment installed in the factory of the appellant and such services are definitely 'input service'

  clearing and forwarding agency service have been provided in connection with the export of goods and such services are in fact exempt from payment of service tax. In case service tax has been paid on such service, the assessee would be rightly entitled for refund

  Technical testing and analysis service availed in respect of the goods exported is an eligible input service without which the export of goods cannot take place, as the export of goods are subject to quality parameters. Hence it is an eligible input service

  As regards management consultancy service, the appellant submits that such services had been availed in respect of foreign exchange risk management and amalgamation and merger of the units of the assessee. These are all services relating to 'business activity' and as per the definition of input service, services in relation to 'business activity' are eligible input service.

  As regards GTA service in respect of which CENVAT credit has been availed, it is seen that in the instant case, the said service pertain to import of inputs and capital goods. There cannot be any doubt regarding such services being 'input service' as defined in Rule 2(l) of the CENVAT Credit Rule

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• 2011 (10) TMI 141 - CESTAT, AHMEDABAD
  

  Miscellaneous application for early hearing of the appeal and by mistake the same has been numbered as stay petition - Commissioner (Appeals) has passed an order directing the adjudicating authority to allow the provisional assessment after execution of bond and bank guarantee,also noticed that provisional assessments were to be finalised as per the writ petition filed before the Hon'ble Delhi High Court - Held that matter needs to be finalised by the adjudicating authority, after considering the directions given by the Hon'ble High Court in their judgment - appeal is allowed by way of remanding the matter to the adjudicating authority, who shall decide the matter afresh, in accordance with law

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• 2011 (10) TMI 135 - CESTAT, AHMEDABAD
  

  Manufacture of excisable goods viz. Polyethylene Jelly Filled Cables falling under Chapter 8544 of Customs Excise Tariff Act, 1985 - various kinds of waste and scrap are generated which are disposed of to various buyers on the basis of bids received on tender notice - cleared the scrap without payment of duty to these buyers - Commissioner (Appeals) dt.18.09.2002, holding that waste and scrap are not excisable. hence, the respondents filed a refund claim - against which the Revenue is in appeal - respondents have produced Chartered Accountant's certificate, but the Chartered Accountant's certificate did not specify the records to come to the conclusion that duty has not been collected - Held that Waste and scrap was not liable to duty when it was cleared and original adjudicating authority's observation that the duty amount was not indicated separately is irrelevant - The appellant had produced Chartered Accountant's certificate.This could have been verified - Hence, appeal of revenue disposed off.

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• 2011 (10) TMI 134 - CESTAT, AHMEDABAD
  

  Interest is payable on differential duty accrued and paid through supplementary invoices raised subsequent to the actual despatch, due to price variation/ escalation Clause in the contract/ purchase order - Held that extended period was not invoked in the show cause notice and demand for interest was beyond the period of one year as prescribed under Section 11A of the Central Excise Act, 1944 - appeal filed by the Revenue is rejected

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• 2011 (10) TMI 133 - CESTAT, AHMEDABAD
  

  Denial of CENVAT Credit - appellant did not have original invoices/endorsed original invoices - Assesse contended that factory has been closed since long time and with great difficulty, they have been able to find out another 4 invoices and requests that the matter may be remanded - Held that since the appellant has been producing invoices in piecemeal, at some stage, the production of invoices should stop - matter is remanded to original adjudicating authority, who shall consider these documents and allow the CENVAT Credit, if it is admissible

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• 2011 (10) TMI 132 - CESTAT, AHMEDABAD
  

  Manufacture of sugar confectionary - Department has taken a view that the goods have to be assessed on the basis of MRP and not under Section 4 of Central Excise Act, 1944. Ld. - Hon'ble Supreme Court in Makson Confectionery Pvt. Ltd. (2010 -TMI - 77501 - SUPREME COURT) has upheld the decision of the Tribunal and has taken a view that the Toffee/Candy weighing less than 10 gms sold in packages of 100/200 in wholesale pack to be re-opened and sold in retail have to be assessed under Section 4 of Central Excise Act, 1944 only and not under Section 4A - appeal filed by the Revenue has no merits and accordingly rejected.

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• 2011 (10) TMI 126 - CESTAT, AHMEDABAD
  

  Cenvat credit on fake invoices - demand of duty along with interest and imposed penalty - As in the case of Bhagwati Silk Mills & Ors [2011 -TMI - 203593 - CESTAT, AHMEDABAD ] Tribunal had allowed the appeals by way of remand with specific direction to the adjudicating authority to reconsider the issue afresh - Hence, Impugned order is set-aside and appeal is allowed by way of remand - adjudicating authority will follow the principles of natural justice before coming to a conclusion

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• 2011 (10) TMI 124 - CESTAT, AHMEDABAD
  

  Adjudicating authority has not considered the issue in proper perspective, as regards limitation - assessee's appeals are allowed by way of remand, this matter may also be sent back to the adjudicating authority - remanded back to the adjudicating authority to reconsider the issue afresh following the principle of natural justice - Hence Appeal allowed by way of remand.

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• 2011 (10) TMI 121 - CESTAT, AHMEDABAD
  

  Fraudulently availing modvat credi - invoices issued by the registered dealers, wherein description of inputs is mentioned as SS Coils - Revenue contended that respondents were showing in their records consumption of the superior quality of stainless steel, whereas they were actually using the inferior quality, thereby they are ineligible for taking cenvat credit - As decided in the case Sunrise Structurals & Engg. Limited[2002 (6) TMI 136 - CEGAT, MUMBAI] - evidence required to substantiate the grave allegation of substitution of such large quantity of material has to be more convincing and direct in nature - denial of cross examination has resulted in the violation of principles of natural justice to the manufacturer - Hence appeal of revenue is rejected accordingly.

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• 2011 (10) TMI 120 - CESTAT, BANGALORE
  

  Manufacture of industrial explosives - used to draw samples and department demanded duty, education cess etc. on the samples drawn and tested in the laboratory - also demanded penalty u/s 11AC of the Central Excise Act - As decided in the case CCE, Nagpur Vs. Economic Explosives Ltd.[2007 -TMI - 2617 - CESTAT, MUMBAI] that Rule 141 of the Explosives Rules 1983 framed under the Explosives Act imposed a ban on sale/delivery to any person of any explosive that had deteriorated or was defective - as the goods were removed for in-house testing and proper accounts were maintained no payment of duty was necessary - impugned order is set aside - Appeal is allowed.

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• 2011 (10) TMI 119 - CESTAT, BANGALORE
  

  100% EOU opted for conversion to EPCG scheme - granted EPCG licence on 30.03.2007 - original authority confirmed demand of duty along with interest and imposed penalties - Held that Commissioner (Appeals) has not decided the case on merits - stay order and the final order have been passed by the Commissioner (Appeals) without hearing the applicants - Held that no opinion expressed on merits of case - Appeal allowed by way of remand - Stay petition disposed off.

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• 2011 (10) TMI 100 - CESTAT, NEW DELHI
  

  Rule 16(1) of Central Excise - when the goods come back from the buyer - appellant has not taken Cenvat credit in the present case. Therefore, taking shelter of Rule 16(3) of Central Excise Rules, 2002, the authority cannot impose excise duty demand - issue involved missed question of the fact and question of law under Rule 16 - Adjudication order does not disclose any questionable conduct of the appellant causing any loss of revenue - Therefore, with the consent of both sides both stay application and appeal is disposed by this common order. Pre-deposit is waived - Adjudication nowhere disclosed what was the difficulty of the appellant to fall under Sub-rule (3) of Rule16 appellant is governed by Rule 16(1) of Central Excise Rules, 2002 - Appeal allowed

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• 2011 (10) TMI 99 - CESTAT, NEW DELHI
  

  Denial of Cenvat credit - disallowance of Cenvat credit was that of non-production of original invoice - Without making any independent examination of the whole chain of transactions the appellant was denied Cenvat credit - Held that dispute being on a very limited point Both sides agree to dispose off appeal and stay - all the relevant documents should be verified by the department from the record of BSNL and also test averments of the Appellant - if the capital goods has arrived and was installed and no duplicate claim was made on the self same capital goods, the appellant should not be denied Cenvat credit - Appeal allowed by remand

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• 2011 (10) TMI 96 - CESTAT, NEW DELHI
  

  Cenvat credit - Respondent contended that vehicle number entered in the invoice do not match with the vehicles in which the goods were supplied. Therefore, it was found that the invoices are bogus - demand was confirmed by both the lower authorities alongwith interest and penalties - Appelant contended that As the godown of the supplier is situated at some other place from the place which the invoices has been prepared, the vehicle numbers has been entered in the invoices as submitted by the transporter themselves - Held that as vehicle Nos. do not match the invoices and the vehicles are of such a nature which cannot transport the impugned goods, therefore, the merit of the case is to be seen by the Commissioner (Appeals) while dealing the issue - duty of the Tribunal to protect interest of Revenue also. In these circumstances, the applicant to make a pre-deposit - matter remanded back.

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• 2011 (10) TMI 94 - CESTAT, AHMEDABAD
  

  Clandestine removal of goods - fake invoices - confirmation of demand on the basis of statement - Held that:- there is nothing on record as to unrecorded purchases or consumption of various other raw material in the manufacture of Frit, there is also nothing on record to indicate that the appellant had purchased the Quartz, Feldspar, Zinc, Borax Powder, Calcium and Dolomite and without accounting them used for the manufacture of Frit for clandestine removal. There is also nothing on record nor there is any statement of the suppliers of other raw materials, which would indicate that the appellant had received unaccounted raw material from the suppliers of these raw materials. There is a solitary evidence in the form of statement of supplier of one of the raw material i.e. Borax Powder, who indicated that the appellant had procured Borax Powder and not accounted the same in his record; and the said entries and information were deduced from the documents of the premises of Shri Anil Jadav and whose evidence has been discarded for having not been produced for cross examination; in the absence of any other tangible evidence to show that the appellant had been procuring the other major raw materials required for manufacture of Frit without recording in books of accounts, we are unable to accept the contentions of the ld.AR appearing for the Revenue and the findings of the adjudicating authority, that there was clandestine manufacture and clearance of the finished goods.

  In the absence of any tangible evidence which would indicate that there was clandestine manufacture and clearance of the goods from the factory premises of M/s VTPL, in the peculiar facts and circumstances of this case, we hold that the impugned order which confirms the demand on the appellant M/s VTPL and imposes penalty on them is not sustainable and is liable to be set aside and we do so. - Decided in favor of assessee.

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