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Central Excise - Case Laws
Showing 41 to 60 of 260 Records
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2012 (12) TMI 941
CENVAT Credit - whether construction of residential colony near the factory as also of cleaning services obtained for the residential colony and guest house would be cenvatable input services or not - Held that:- Following decision of CCE vs. ITC [2011 (11) TMI 516 - ANDHRA PRADESH HIGH COURT] - Decided in favour of assessee.
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2012 (12) TMI 940
Denial of CENVAT Credit - Whether Ring Rim is eligible for Cenvat credit either as capital goods or as input - Held that:- Ring Rim which is a rubber item classifiable under Chapter 40 of the Central Excise Tariff, is an essential item for testing of the tyre and that it is also not disputed that every tyre prior to its clearance is required to be subjected to inflated dimension test for which Ring Rim is used. In view of this, I am of the prima facie view that Ring Rim is an item which is required in or in relation to the manufacture of rubber tyre, as a tyre without being tested cannot be marketed. In my prima facie view, the expression “in or in relation to the manufacture of final product, whether directly, or indirectly, whether contained in final product or not,” in the definition of ‘input’ is very wide and would cover, in addition to the items which are directly used in the manufacture of final product, the items which are indirectly used - impugned order denying the Cenvat credit in respect of this item is not correct and as such the appellant have prima facie case in their favour. The requirement of pre-deposit of Cenvat credit demand, interest and penalty is, therefore, waived for hearing of the appeal and recovery thereof is stayed till the disposal of the appeal - Stay granted.
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2012 (12) TMI 939
Availability of cenvat credit - Welding electrodes used in fabrication and installation of capital goods - Bar of limitation - Held that:- show cause notice stand issued on 13.8.08 in respect of credit availed during the period January, 2006 to October 2006. The credit was availed by the appellant by reflecting it in their statutory records and they were filing requisite quarterly returns. It is result of audit objection that show cause notice stand issued by invoking the longer period of limitation. In the absence of any malafide on the part of the appellant, such extended period of limitation cannot be invoked. As such, the demand is barred by limitation - Decided in favour of assessee.
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2012 (12) TMI 938
Refund claim - Denial of Refund claim - Held that:- I have found no challenge to any of the factual findings recorded by the Commissioner (Appeals). As the refund claim was allowed on the basis of the aforesaid findings of the Commissioner (Appeals), his decision has got to be sustained for want of challenge to the factual findings - Decided against Revenue.
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2012 (12) TMI 937
Denial of CENVAT Credit - Input received in the name of other company - Held that:- this is a case where Rule 9(2) of Cenvat Credit Rules could have been and should have been applied. In this case actually objection of the Revenue is that invoice was not in the name of the unit, but Head Office. It is not the name of the receiver of service, but address of the receiver should be there in the invoice, is one of the requirements which is compulsory under Rule 9(2). Since there is no dispute that services were received in the unit where credit has been utilized and the Commissioner (A) has satisfied by verifying the same and this is not under challenge by the Revenue, credit has been correctly taken. Even otherwise in the decision cited by the ld. Counsel, this Tribunal has taken the view that credit can be transferred by Head Office to the unit - Following decision of Tribunal in the case of Modern Petrofils [2010 (7) TMI 319 - CESTAT, AHMEDABAD] and Samita Conductors Ltd. [2012 (11) TMI 432 - CESTAT, AHMEDABAD] - Decided against Revenue.
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2012 (12) TMI 936
Denail of CENVAT Credit - Duty demand - Bar of limitation - Held that:- there were two views during the relevant period and therefore there is no ground for invocation of extended period for denying cenvat credit. Since in this case the entire period covered by show-cause notice is beyond one year, extended period cannot be invoked, and therefore, the appellants succeed on limitation - Decided in favour of assessee.
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2012 (12) TMI 935
Denial of refund claim - Adjustment of refund against demands due - Held that:- Proceedings against the show-cause notice dated 24-5-2010 are still pending and the demand confirmed against the appellant have not obtained finality. Further by an order dated 21-9-2011, the demands confirmed against the appellant in proceeding of the show-cause notice dated 24-5-2010 has been stayed on furnishing of Bank Guarantee of Rs. 2 Crores. In these circumstances, I am of the view that when the demands against the appellant has not attained finality, the Revenue cannot adjust the amount sanctioned against these demands - Decided in favour of assessee.
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2012 (12) TMI 934
Denial of CENVAT Credit - Revenue contends that appellant is a job worker and not paying duty at the time of clearance of their finished goods, therefore, they are not entitled for input credit on the procured inputs for the job work activity - Held that:- It has been clearly stated by the appellant that once the processed goods were cleared by the appellant to the manufacturer after following the procedure under Rule 4(5)(a) of CENVAT Credit Rules, 2004, the principal manufacturer carried out certain process on the job work goods and the same were cleared on payment of duty. This fact has not been controverted by the Revenue in the impugned orders. No enquiry has been made to principal manufacturer whether principal manufacturer has discharged the duty liability or not. Therefore, the impugned order is not sustainable and the same is set aside and the matter is remanded back to the adjudicating authority - If principal manufacturer has discharged the duty liability then the appellant is entitled for CENVAT credit - Decided in favour of assessee.
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2012 (12) TMI 933
Penalty - Clearance of scrap - Held that:- Clearance of scrap was on proper documents. There was no other charge on the part of the appellant to suppress the clearance of such scrap. As such, it could be a bonafide belief on their part that such scrap did not attract any duty. In these circumstances, by extending the benefit of doubt to them, I set aside the penalty imposed - Decided in favour of assessee.
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2012 (12) TMI 932
Denial of CENVAT Credit - Credit on MS Angles, channels etc. - Held that:- Assessee is not entitled for “input credit” on the above items as the same are not a part of capital goods - appellant has not made out a case for 100% waiver of pre-deposit - Following Vandana Global Ltd. vs CCE, Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - decision of Decided conditionally in favour of assessee.
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2012 (12) TMI 931
Recovery of excess credit taken - Interest - - Held that:- that this is a case of mistake rather than any action with intention to evade payment of duty especially in view of the fact that the credit taken was not utilized. Further I notice that the majority of instances happened in one month that is March 2009 when as per pleading they had some change in the staff. Therefore, I accept the pleading of the appellant for waiver of penalty - Decided in favour of assessee.
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2012 (12) TMI 930
Availment of CENVAT Credit - Non production of proper documents - Held that:- I am not in agreement with the contention of the appellant that the extended period of time should not be invoked in this case because they are required to exercise due care while taking the credit. As a prudent and experienced central excise assessee the appellant would have noticed the defects but still they chose to take credit without disclosing the defects to the department. I give the appellant an option to pay 25% of the penalty within 30 days of receipt of this order for final closure of the matter. If such payment is not made, the full amount of penalty will be payable after 30 days of the receipt of the order - Decided partly in favour of assessee.
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2012 (12) TMI 929
Penalty - Suppression of facts - Held that:- Revenue has not adduced any evidence to prove suppression on the part of the respondent and the allegation is based only on presumption. Revenue has also not made the main manufacturer a party to the adjudication proceedings. That being the case, I accept the contention of the respondent that there was no suppression on their part and consequently no penalty is imposable on the respondent in the facts and circumstances of the case - Decided against Revenue.
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2012 (12) TMI 928
Penalty - wrong availment of credit - whether these appellants are liable to pay penalty of Rupees one lakh each confirmed against them in the two Orders-in-Appeal - Held that:- no detailed investigation has been conducted as to which goods were sent with invoices to receiving unit via. Dealer. of course it can be argued that this is not necessary, but it would have made offence case against appellants stronger. In any case, taking into account the fact that the recipients have paid the cenvat credit wrongly availed with interest, I find it fair to take a lenient view as submitted by the ld. Counsel. Accordingly penalty is reduced to Rs.15,000/- from Rs.1 lakh on each of the appellants in each appeal - Decided partly in favour of assessee.
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2012 (12) TMI 927
Reversal of CENVAT Credit - appellant is sending inputs on Caustic Potash Pellets on which credit has been taken for conversion into Potash Pellets on job work basis to two job-workers - One Job worker returned 100% Credit whereas other returned only 90% - Held that:- In the case of Bharat Radiators Ltd. [2002 (3) TMI 685 - CEGAT, MUMBAI] it was held that weight of goods received back after processing from the job-worker reduced on account of processing cannot result in denial of credit. The facts in this case are covered by this decision. In the absence of any further investigation, the decision of the Tribunal cited above would cover the issue since the process loss is not shown as genuine. This is further confirmed by the fact that there is correspondence between the appellant and the job-worker that there is 10% process loss. In the absence of investigation and in view of the decision of the Tribunal which clearly is in appellant’s favour I have to hold that the appellants have made out a prima-facie case for waiver of pre-deposit of all dues - Stay granted.
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2012 (12) TMI 926
CENVAT CRedit - Whether the respondent is eligible for cenvat credit of service tax paid on services used exclusively for fulfilling various procedures/ requirements for export of goods - Held that:- there are several decisions of the Tribunal taking a view that in the case of FOB exports, the place of removal is the Port and therefore, credit of service tax paid on CHA Services/ Port services are admissible - Following decision of Meghachem Industries [2011 (4) TMI 221 - CESTAT, AHMEDABAD] and Fourrts (I) Laboratories [2009 (10) TMI 175 - CESTAT, CHENNAI] - Decided against Revenue.
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2012 (12) TMI 925
Waiver of pre-deposit - Held that:- appellant has shifted focus from excisability, classification etc. to limitation for the present purpose. We have to consider this issue at this stage. The statement of the Microbiologist has been perused and the same indicates that mineral water was manufactured by the appellant by a process involving several stages, viz, treatment with chlorine gas, filtration, blending, reverse osmosis, treatment with UV light etc. This statement of the expert was only corroborated by a senior functionary of the Company. Note 2 to Chapter 22 of the Tariff Schedule is, prima facie, applicable to the facts of this case and, therefore, there is no escape from the fact that the appellant was manufacturing mineral water chargeable to duty of excise under the appropriate sub-heading of Heading 2201. Apparently, the manufacturing process was not disclosed by the appellant voluntarily to the department at any stage. The internal auditors of the department visited the factory and gathered the information in May 2009. The show cause notice in this case was issued in 2010 invoking, apparently rightly so, the extended period of limitation under the proviso to Section 11 A (1) of the Central Excise Act. The plea of bona fide belief is itself untenable, inasmuch as the law prevailing during the material period clearly required payment of duty of excise on the appellant's product and also required addition of clearances of the exempted product (ready mixed concrete) to the clearances of mineral water for the purpose of the SSI exemption notification as amended. The appellant cannot plead ignorance of law. Prima facie , therefore, the demand is not time.-barred - Conditional stay granted.
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2012 (12) TMI 924
Denial of CENVAT Credit - Credit taken on invalid invoices - Held that:- Cenvat credit, in question, has been taken on the basis of four invoices issued by M/s. Karanveer Singh & Brother in March, 2008 in respect of the services provided by them during the period of June, 2005 till Feb., 2008. Prima facie, the contention of the department that the invoices in question, having been issued after 14 days from the date of providing taxable services are not valid for cenvat credit, does not appear to be correct as these invoices have to be treated as supplementary invoices and the cenvat credit could be denied only when the non-payment of service tax by the service provider was due to fraud, suppression of facts, intentional contravention of the rules with intent to evade payment of service tax. However, since the service tax demand itself against the service provider was dropped by the original adjudicating authority and that order of the original adjudicating authority was upheld by the Commissioner (Appeals), the department's allegation that non-payment of service tax by M/s. Karanveer Singh was due to fraud, wilful mis-statement, intentional contravention of rules is prima facie not sustainable. The only ground on which the cenvat credit could be denied to the appellant is that after dropping of the service tax demand the service provider has taken its refund, but this is not the contention of the department. In view of this, I am of the prima facie view that the Appellant have strong prima facie case - Stay granted.
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2012 (12) TMI 923
Denial of CENVAT credit - Validity of documents on which Credit was taken - Held that:- impugned order passed by the Commissioner (Appeals) clearly states that the goods, in question, had been imported by M/s. Siemens Ltd. and subsequently, the same were sold to SVACPL, who in turn have sold them to the appellant thereby passing on the cenvat credit to the tune of Rs.5,72,286/-. Thus, this is case where the it is not disputed that M/s. Siemens Ltd. were registered as a dealer and subsequently after taking over of the business of Automotive division of the Siemens Ltd. by SVACPL, SVACPL also obtained registration as a registered dealer. When it is not disputed that the goods, in question, on which the cenvat credit had been taken by the appellant, had been sold to M/s. SVACPL, who, in turn, sold the same to the appellant, it would not be correct to deny the cenvat credit when both the M/s. Siemens Ltd. and M/s. SVACPL were registered as dealers. SVACPL can be treated as second stage dealer and the invoice issued by them would be valid document for cenvat credit. I also find that in identical case of M/s. Venus Stampings Pvt. Ltd. (2006 (7) TMI 65 - CESTAT,NEW DELHI) when the business of one registered dealer is taken over by another registered dealer along with stock of goods, the invoices issued by that registered dealer who had taken over the business along with the stock, would be valid document for cenvat credit - Decided in favour of assessee.
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2012 (12) TMI 922
Reversal of CENVAT Credit - whether the appellants are required to reverse actual amount of Modvat/Cenvat credit availed on the Molasses used for manufacture of rectified spirit consumed by them in their liquor manufacturing section for manufacture of Indian Made Liquor (IML) or can the appellants reverse 8% of the value of rectified spirit as provided under Rule 57CC - Held that:- Any intermediate product can be an intermediate product for the purpose of manufacture of IMFL but by itself it is final product also. Rectified spirit is sold in the market. Thus it is an excisable product falling under chapter sub heading 2204.90. IMFL is non-excisable product. Rule 57CC speaks of final product as exempt or chargeable to nil rate of duty. Thus it will cover only excisable product and not non-excisable product. Hence, we hold that IMFL is not a final product in the instant case. We are therefore left only with the rectified spirit. Rectified spirit is an excisable product as it is classifiable under Chapter 22. Thus both the words "Exempt from the whole of duty of excise or chargeable to nil rate of duty" will be applicable to rectified spirit. Rectified spirit is also cleared as rectified spirit and therefore, an amount of 8% of the price shall be reversible. We accordingly hold that 8% of the sale price of extra neutral alcohol and rectified spirit which are chargeable to nil rate of duty while removing from the factory shall be debitable and hence is sustainable in law - Following decision of COMMISSIONER OF C. EX., LUCKNOW Versus KESAR ENTERPRISES LTD.[2000 (8) TMI 175 - CEGAT, NEW DELHI] - Decided in favour of assessee.
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