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Central Excise - Case Laws
Showing 21 to 40 of 177 Records
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2012 (6) TMI 775
Denial of rebate claim - respondents had not filed Bill of Export with the claims - Held that:- in terms of Para (5) of Board’s Circular No. 29/2006-Cus., dated 27-12-2006, the supply from DTA to SEZ shall be eligible for claim of rebate under Rule 18 of Central Excise Rules, 2002 subject to fulfilment of conditions laid thereon - Rule 30 of SEZ Rules, 2006 prescribes for the procedure for procurements from the Domestic Tariff Area. As per sub-rule (1) of the said Rule 30 of SEZ Rules, 2006, DTA may supply the goods to SEZ, as in the case of exports, either under Bond or as duty paid goods under claim of rebate on the cover of ARE-1. - Customs Officer at SEZ has certified on the ARE-I that goods have been admitted in full in the SEZ. Therefore receipt of goods in SEZ is not disputed. The fundamental condition for granting rebate of duty paid on exported goods is that duty paid goods are exported. The said fact is not in dispute in this case. The substantial benefit of rebate claims cannot be denied for only lapse of not filing Bill of Export which is a procedural lapse of technical nature - Decision in the case of UOI v. Suksha International [1989 (1) TMI 316 - SUPREME COURT] - rebate claim is rightly held admissible in this case by Commissioner (Appeals). - Decided in favour of assessee.
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2012 (6) TMI 774
Denial of rebate claim - non-submission of some documents - failure to submit copies of relevant Bills of Export by the applicant - Commissioner (Appeals) allowed all the rebate claims on merit subject to factual verification by the original authority regarding genuineness of documents and endorsements on ARE-1 filed by party - Held that:- Commissioner (Appeals) has dealt with in details in respect of two Orders-in-Original and allowed the rebate to respondent. Government concurs with the findings of Commissioner (Appeals) and directs the original authority to allow the rebate claims after carrying out verification as mentioned in Order-in-Appeal in respect of said two rebate claims.
In terms of Para (5) of Board’s Circular No. 29/2006-Cus., dated 27-12-2006, the supply from DTA to SEZ shall be eligible for claim of rebate under Rule 18 of Central Excise Rules, 2002 subject to fulfilment of conditions laid thereon - In terms of sub-rule (5) of the Rule 30 of SEZ Rules, 2006, Bill of Export should be filed under the claim of drawback or DEPB, Though Bill of Export is required to be filed for making clearances to SEZ, yet the substantial benefit of rebate claim cannot be denied only for this lapse. Government further observes that Customs Officer of SEZ Unit has endorsed on ARE-1 that the goods have been duly received by them. As the duty paid nature of goods and supply the same to SEZ is not under dispute, the rebate on export of duty paid goods under Rule 18 of Central Excise Rules, 2008 is admissible, subject to verification from ARE-1 forms that goods were received in SEZ. Government also notes that, now, the applicant has now submitted copies of relevant BRCs which also proves that impugned goods were exported. - Decided against Revenue.
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2012 (6) TMI 771
Denial of input service credit - outward transportation service - Inclusion of transportation charges into the assessable, value and claimed input service credit of outward transportation service - Held that:- Clearances have been made by the appellant from the depot and as per the Section 4A of the Central Excise Act, 1944, the depot is the place of removal as the clearances have been made by the appellant from their depot and the same is place of removal. Therefore, the appellants are entitled for input service credit on GTA service upto the depot. - With regard to the denial of CENVAT credit of ₹ 10,354/-, I find that as per the Board's Circular No. 97/8/2007 dated 23.08.2007 the appellant is satisfied all the conditions as the sales are upto the place of buyer and the transportation charges have formed a part of the assessable value, the transportation risk has been borne by the appellant. Therefore, the appellant is entitled for input service credit on GTA service upto the place of removal i.e. place of buyer's door. The view is supported by the decision in the case of Palco Metals Ltd. vs. CCE - [2011 (8) TMI 88 - CESTAT, AHMEDABAD]. Therefore, on the whole, the appellants are entitled for input service credit in the facts of the case. - Decided in favour of assessee.
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2012 (6) TMI 758
Remission of duty - loss of molasses due to leakage - Held that:- After the accident, was reported to the Department, the officials from the Commissionerate visited the factory of the appellant. There is nothing on the record that the excise team on inspection found some mischief or reported that the accident was not genuine. Thus, there is no dispute regarding the loss of molasses. As regards, the plea that the accident was avoidable it is sufficed to say that every accident is on account of lack of precaution on the part of the personnel responsible for avoiding such incident. Nobody deliberately would indulge in an exercise which may result in huge loss. Therefore, we are of the view that interpreting Rule 21 of the Central Excise Rules, the authorities are required to be liberal otherwise restrictive construction to Rule 21 would make it inoperable and redundant. In our aforesaid view, we are supported by the judgment of Hon’ble Rajasthan High Court in the matter of Union of India v. Hindustan Zinc Ltd. (2008 (10) TMI 63 - HIGH COURT RAJASTHAN). Commissioner ought to have allowed the remission of excise duty particularly when there is no evidence to show any mala fide intention to evade the excise duty - Decided in favour of assessee.
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2012 (6) TMI 757
Availment of CENVAT Credit - Non maintenance of separate accounts - Held that:- Bagasse emerges in course of crushing of the sugarcane. It may be noted that crushing of sugarcane is necessary to extract canesugar juice which in turn is processed for production of sugar and molasses. Bagasse is the waste product left after the crushing of sugarcane. Therefore, by no stretch of imagination it can be said that the assessee possibly could have maintained separate accounts for the inputs for production of sugar and molasses (excisable item) and bagasse. Thus, in our considered view, the amendment in Finance Act, cited by Shri Sanjay Jain, AR and the Board’s Circular would not make any difference in the facts and circumstances of the case. Moreover, neither the show cause notice nor the impugned order-in-appeal mentions as to which common Cenvat credit availed inputs have been used in manufacture of sugar and molasses (dutiable final product) and bagasse (exempted final product. Since Bagasse emerges at sugarcane crushing stage, there is no possibility of any inputs-chemicals, etc., having been used at that stage - Decided in favour of assessee.
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2012 (6) TMI 756
Availment of Cenvat credit - penalty imposed under Rule 13 of Cenvat Credit Rules - Held that:- provisions of Rule 13 of Cenvat Credit Rules, 2002 was applicable only to the person who availed Cenvat credit and penalty under the said rule cannot be imposed on the Director of company which availed Cenvat credit wrongly - Decided in favour of assessee.
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2012 (6) TMI 755
Penalty u/s 11A(1A) - Whether after conclusion of proceedings against an assessee under Section 11A(1A), a separate proceeding imposing penalty on the Director of the company can survive - clandestine manufacture and clearance of excisable goods - Held that:- The provisions in the first proviso to Section 11A(2) is very clear that if the proceeding against an assessee is concluded under Section 11A(1), further proceedings against any other person to whom notice was served under sub-section (1) of Section 11A also are to be treated as closed - Decided against Revenue.
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2012 (6) TMI 754
Rejection of a claim for refund of duty - Unjust enrichment - Held that:- refund claim was filed on 17.3.2008 and the same was of the excess duty paid for the period from May 2006 to January 2007. The claim was clearly barred by limitation. Further, there is nothing on record to indicate that any meaningful attempt was made by the assessee to rebut the statutory presumption of unjust enrichment. The grounds of this appeal are sketchy and hardly constitute any valid challenge to the appellate Commissioner’s order - Decided against assessee.
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2012 (6) TMI 753
Availment of CENVAT Credit - Revenue denied credit on the ground that the exported material is otherwise duty-free - Held that:- It is the undisputed policy of the Government not to burden the export goods with domestic taxes as has been noted in various decisions of the Tribunal. The reasons are obvious. We do not want to make domestically produced goods, when exported to foreign market, to become uncompetitive. Secondly, no country wants to export the domestic taxes meant to be levied on domestic consumption of goods and services. Each country either exempts such taxes in respect of export goods, including taxes relating to inputs used in the export goods, or there are alternative schemes for providing rebate, drawback of duties suffered by export goods. India is no exception as we also have similar schemes. There are also schemes making available duty-free goods and services for export production - allowing of input duty credit would free the export goods from domestic taxes. Hence, the impugned order is set aside - Decided in favour of assessee.
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2012 (6) TMI 752
Cenvat Credit- whether Cenvat Credit could be denied to the assessee on the ground that the weight of the input recorded on receipt in the premises of the manufacturer of the final products showed a shortage compared to the weight recorded in the relevant invoice? Held that- tolerance in respect of hygroscopic, volatile and such other cargo have also to be allowed as per industry norms excluding, however, unreasonable and exorbitant claims. Similarly, minor variations arising due to weighment by different machine will also have to be ignored if such variations are within tolerance limit - Finding no mala fide reason attributable to the appellant - Decided in favour of assessee.
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2012 (6) TMI 751
Denial of CENVAT Credit - Excess demand of CENVAT Credit - Held that:- demand of CENVAT credit is highly disproportionate to value of raw materials mentioned in the annexure to the show-cause notice. The demand has been made nearly after four years after the flood has been happened in October 2005. A claim settled by the Insurance Company confirms the occurrence of flood. Therefore, we do not prima facie find valid reason to uphold the demand as per the impugned order. In view of the above, there shall be waiver of pre-deposit of dues as per the impugned order and stay of recovery thereof till disposal of the appeal - Stay granted.
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2012 (6) TMI 750
Waiver of the pre-deposit - Availment of ineligible cenvat credit - Assessee drawing wires from wire rods - Held that:- Board’s circular dated 16.02.01 during the material period was holding that the activity of drawing wire would amount to manufacture cannot be disregarded by the lower authorities and can be said that during the material period appellant was manufacturing the final products. It is a settled law that Board’s circular is binding on the lower authorities and adjudicating authority, in our considered view, has erred in coming to a conclusion that the appellant is not eligible for the cenvat credit of the duty paid on inputs. We also note that the CBEC vide circular dated 29.05.03 has withdrawn the said circular which would leave the period after 29.05.03 in the category of the drawing of wire would not amount to manufacture. We find that by retrospective amendment this was rectified holding that wire drawing units during the period 29.5.03 to 08.7.04 (both days inclusive) it has cleared the final products i.e. drawn wire on payment of duty, at appropriate rate, then the amount paid on such goods shall be allowed as cenvat credit to the recipient of the said drawn wire. The corollary of this retrospective amendment would be that the appellant herein if has discharged the duty liability, then he is eligible to avail the cenvat credit during the material period - Following decision of COLLECTOR OF CENTRAL EXCISE Versus TECHNOWELD INDUSTRIES [2003 (3) TMI 123 - SUPREME COURT OF INDIA] - Decided in favour of assessee.
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2012 (6) TMI 749
Denial of CENVAT Credit - Loss of documents - Equivalent penalty - Held that:- original documents were lost in transit by the truck driver who was transporting the goods and the truck driver, on noticing the loss, filed a FIR with the Police Station and documentary evidence are available to this effect. When the original documents are lost, the only recourse that was available to the appellant was to get a copy of the same from the supplier and take credit on the basis thereon. The appellant requested the Assistant Commissioner to grant permission for taking credit. However, the jurisdictional authorities rejected the request of the appellant. This is a case of pure and simple harassment to the assessee. If the Assistant Commissioner wanted verification of the duty payment, he could have taken up the matter with the jurisdictional authorities at the supplier's end inasmuch as the details of the invoices are available. Instead of doing that, the appellant was served with a show cause notice leading to avoidable adjudication.
Powers of adjudication are given to quasi judicial authorities to sub-serve justice and not to deny them. In the instant case justice has been completely denied to the appellant. Further, the demand was also barred by time inasmuch as the notice has been issued beyond the normal period. The lower appellate authority, without even understanding the basic facts of the case directed the appellant to pre-deposit the entire amount which was not deposited and which resulted in dismissal of the appeal - Decided in favour of assessee.
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2012 (6) TMI 748
CENVAT Credit - Held that:- landscaping of factory garden will fall within the concept of modernisation, renovation, repair etc. of office premises. Further, the credit rating of industry is dependent on how the factory is maintained inside and outside the premises and environmental law expects employer to keep factory without contravention thereof and the concept of social responsibility and statutory obligation of employer to maintain their factory in eco-friendly manner is also relevant. Therefore, these services are activities relating to business of manufacturer of excisable goods and held that the assessee is entitled to take credit of service tax paid on such services - Following decision of Commissioner of Central Excise, Bangalore vs. Millipore India Pvt. Limited [2011 (4) TMI 1122 - KARNATAKA HIGH COURT] - Decided against Revenue.
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2012 (6) TMI 747
Duty demand - Reversal of CENVAT Credit - Held that:- in the case of Bajaj Tempo Limited [2014 (3) TMI 132 - CESTAT MUMBAI] whereby the Tribunal followed the decision of the Larger Bench in the case of Commissioner of Central Excise, Vadodara v. Asia Brown Boveri Ltd. reported in [2000 (7) TMI 110 - CEGAT, NEW DELHI] and in the case of Commissioner of Central Excise, Coimbatore v. American Auto Service reported in [1995 (6) TMI 33 - CEGAT, MADRAS] and held that in case of inputs were cleared as such the credit availed is to be reversed - in case the inputs were cleared as such the manufacturer is to reverse the credit availed - Decided in favour of assessee.
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2012 (6) TMI 746
Duty demand - Whether the respondent should be asked to pay duty of excise on carton waste, crown waste, glass scrap, crate scrap, pet-bottle scrap, PVC cans and plastic crowns which were cleared by them under commercial invoices without payment of duty during the period from April, 1997 to November, 2001 - Held that:- Adjudicating authority examined the very excisability of the above materials and held in favour of the assessee by relying on the Hon’ble Supreme Court’s decision in CCE vs. West Coast Industrial Gases Ltd. [2003 (4) TMI 110 - SUPREME COURT OF INDIA] wherein it was held that no duty was payable on used/waste containers cleared from factory by a manufacturer after availing MODVAT/CENVAT credit. In the present appeal, the appellant has not stated any reason why the Hon’ble Supreme Court’s decision is not applicable to the facts of the present case. The Tribunal’s decision in the case of Nestle (I) Ltd. (2002 (11) TMI 424 - CEGAT, NEW DELHI) cited by the Superintendent(AR) is of no support to the appellant inasmuch as, in that case, it was not in dispute that Rule 57F(18)(a) was applicable. In the instant case, this Rule was not invoked in the show-cause notices and hence the assessee did not have any occasion to consider the applicability of the rule - Decided against Revenue.
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2012 (6) TMI 745
Duty demand - Non-compliance with the provisions of Section 35F of the Central Excise Act, 1944 - Fuel supplied by the Applicant was furnace oil and was used in the MSQ Plant and later capitalized - Held that:- Commissioner (Appeals) has not decided the appeal on its merits. Therefore, learned Commissioner (Appeals) is directed to decide the case on its merits without insisting for any pre-deposit. All issues are kept open. Needless to say that a reasonable opportunity of hearing may be granted to the Appellant. The Appeal is allowed by way of remand - Decided in favour of assessee.
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2012 (6) TMI 744
Condonation of delay - Held that:- First appellate authority should have condoned the delay in filing appeal and dispose of the stay petition and appeal on merits as it is settled law that if there is condonation prescribed in the rules, it should be viewed in a broader perspective. In our considered view the reasoning given by the appellant before the first appellate authority in not filing the appeal in time, seems to be justifiable reasons and all the more so, when the appellant has already preferred appeals in an identical issue and stay has been granted by this Tribunal - Delay condoned.
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2012 (6) TMI 743
CENVAT Credit - GTA Services - Held that:- Following decision of Commissioner of C. Ex. & S.T., LTU, Bangalore vs. ABB Limited [2011 (3) TMI 248 - KARNATAKA HIGH COURT] - Decided against Revenue.
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2012 (6) TMI 742
Entitlement to registration certificate as per Rule 9 of the Central Excise Rules, 2002 - Revenue contends that respondent is not entitled for more than one registration in the same campus - Held that:- According to Rule 9 of Central Excise Rules, 2002, different activities carried out by an assessee which are recognised under the law can be registered separately. There is nothing on record to show any mala fide in the approach of the respondent to disagree to the conclusion of the learned Commissioner (Appeals). Accordingly, there is no infirmity in the order passed by the Commissioner (Appeals) - Decided against Revenue.
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