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Central Excise - Case Laws
Showing 61 to 80 of 189 Records
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2012 (8) TMI 839
Duty demand - Penalty u/s 11A(1A) - Held that:- Provisions in the first proviso to Section 11A(2) covers the situation under consideration and for that reason no proceedings could have been continued against the respondents after the manufacturers complied with the provisions of Section 11A(1A) - Decided against Revenue.
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2012 (8) TMI 838
Cenvat credit - Revenue was of the view that the Organic Composite Solvent and Thinner not elsewhere specified, prepared paints could not be considered to be input used in the manufacture of biscuits - Held that:- this is not an item which is normally used as fuel and also considering the classification under which supplier of the goods had classified the goods, it is very obvious that the goods in question was not meant for use as fuel - Decided against assessee.
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2012 (8) TMI 837
Duty demand - appellant have not maintained separate account and inventory of the inputs used in or in relation to manufacture of dutiable final products - 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 Negi, 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 (8) TMI 836
Waiver of pre-deposit - Appellant is engaged in the manufacture of sugar from sugar cane and that, in the process of manufacture, bagasse is generated as waste - Held that:- The bagasse generated in the course of manufacture of sugar by the first unit was disposed of by sale for a consideration and, therefore, (it is argued) the commodity should be deemed to be marketable and hence excisable. Yet another submission made by the learned Superintendent (AR) is that bagasse figures by name in the 1st Schedule to the Central Excise Tariff Act and hence should be held to be excisable. Marketability is not the only criterion for determining excisability. In the first instance, the commodity should be a ‘manufactured product’ in terms of Section 2(f) of the Act. Bagasse is only a waste and not a product consciously manufactured by the appellant. The department has no case that bagasse was also included in the Registration Certificate issued to the appellant. As it was not a manufactured product, it could not be excisable and consequently could not be treated as ‘exempted goods’ for purposes of Rule 6(3) of the CENVAT Credit Rules, 2004. Mere mention of bagasse in the First Schedule to the Central Excise Tariff Act is also of no consequence. - Following decision of Shakumbari Sugar & Allied Industries Ltd. [2003 (9) TMI 268 - CESTAT, NEW DELHI] - Stay granted.
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2012 (8) TMI 835
Denial of CENVAT Credit - Rent-a-cab service - Penalty - Held that:- If any amount of service provided is recovered from the employees, to the extent amount recovered, the assessee is not entitled for input service credit. As the issue involved is interpretation of the provisions, therefore, penalty is not warranted in the instant case. Accordingly, penalty is waived. But the appellants are directed to contact the adjudicating authority for quantification of the amount which is deniable - Both adjudicating authority and the appellants shall calculate the amount deniable and thereafter the appellant shall pay the amount deniable alongwith interest - Decided partly in favour of assessee.
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2012 (8) TMI 834
CENVAT Credit - Whether the respondent was entitled, during the period of dispute, to CENVAT credit of the service tax paid on Group Health Insurance premium covered by the Group Health Insurance Policy by the respondent in respect of their employees - Held that:- In so far as Insurance coverage to the employees is concerned in the course of employment if the employees suffer injury or dies, there is a vicarious liability imposed on the employer to compensate the employee. If the employer employs its own transportation facility in order to cover the risk which also includes the risk of workers who are covered in that statutory establishment. He has to take the insurance policy without which the vehicle cannot go on the road. Under the Workmen’s Compensation Act he has to obtain the Insurance Policy covering the risk of the employees. The employees State Insurance Act takes care of the health of the employees also and casts an obligation on the employer to provide insurance services. Under these circumstances, this Group Insurance Health Policy though is also a welfare measure is an obligation which is cast under the Statute that the employer has to obey. Section 38 of the Employees State Insurance Act, 1948, mandates that subject to the provisions of the Act, all employees in factories or establishments to which this Act applies shall be insured in the manner provided by this Act. May be the employees also have to contribute but the employer is under an obligation to take an insurance policy and contribute his share. Therefore, the said Group Insurance Health Policy taken by the assessee is a service which would constitute an activity relating to business which is specifically included in the input service definition - Following decision of Commissioner of Central Excise Bangalore-111 vs. Stanzen Toyotetsu India (P) Ltd. [2011 (4) TMI 201 - KARNATAKA HIGH COURT ] - Decided against Revenue.
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2012 (8) TMI 833
CENVAT Credit - whether the assessee could take CENVAT credit of sugar cess paid under the Sugar Cess Act 1982 - Held that:- Sugar Cess did not assume the character of central excise duty to warrant levy of education cess thereon. This decision of the Hon’ble Gujarat High Court was rendered on 11/3/2010 i.e. more than two years ago. The department’s appeal against the Tribunal’s decision in the case of Shri Renuka Sugars Ltd. [2007 (8) TMI 147 - CESTAT, BANGALORE] had been filed in the Hon’ble High Court of Karnataka on 19/2/2008 i.e. more than four years ago. Apparently, the department’s stay application is pending before the Hon’ble High Court of Karnataka for over four years, but it did not occur to the department that the above decision of the Hon’ble Gujarat High Court supported their case pending with the Hon’ble Karnataka High Court. In these circumstances, I do not think that anything has affected the operation of the Tribunal’s order in Shri Renuka Sugars case - Decided in favour of assessee.
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2012 (8) TMI 832
Waiver of pre-deposit of interest demanded on differential duty paid - Held that:- Even though the demand pertains to the year 2007-08, but the differential duty has been paid by the applicant only in January 2009, therefore cause of action arose in January 2009 only and demand of interest by way of show-cause notice has been made within one year from January 2009. Therefore the case laws cited by the learned consultant are not relevant to the facts of this case. In view of these observations, the applicants have not made out a case for 100% waiver of pre-deposit - Decided against assessee.
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2012 (8) TMI 831
Duty demand - Exemption under Notification No. 31/93-C.E., dated 28-2-1993 - Held that:- preventive department of Central Excise drew three samples each from different lots of 210 deniers yarn purportedly manufactured by the appellant. It is also not in dispute that looking into the variance in respect of test report pertaining to three different samples on request of appellant second set of samples were sent for chemical analysis. From the record it is evident that the Chemical Analyst instead of sending test report of second set of samples informed the Department that second test report was at variance with the first report and requested for sending of third set of samples for analysis. It is not explained as to why the test report pertaining to second set of test report was not sent by the Chemical Examiner and why adjudicating authority did not insist on calling for the test report.
In the absence of second test report pertaining to second set of samples we are at a loss to make out whether or not as per the second analysis the samples confirmed to the specification of 210 denier yarn with the tolerance limit of +/- 4% and was exempt from payment of excise duty under Notification No. 31/93-C.E., dated 28-2-1993. It is obvious that the Department has withheld the second test, therefore, we are inclined to draw an adverse presumption against the Department that had the second test report been produced it would have gone against the Department. Further there is no explanation as to why the third set of sample did not reach the Chemical Examiner - No receipt from the office of Chemical Analyst is made available on record nor is there any evidence to show that the third set of test report was actually dispatched to the office of Chemical Analyst - Decided in favour of assessee.
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2012 (8) TMI 830
Waiver of pre deposit - Classification of goods - Classification under Heading 8705 or under Chapter 73 - benefit under exemption Notification No. 6/2006-C.E. (Sl. No. 87) - Held that:- chassis on which the telescopic tower is fitted is duty paid and that the appellant have also paid the duty on the value of telescopic tower mounted by them. Prima facie we are of the view that mobile telescopic tower would be correctly classifiable under Heading 8705 as special purpose motor vehicle and not under Chapter 73 and if this is so, the same being manufactured out of duty paid chassis and duty paid telescopic tower would be eligible for exemption under Notification No. 6/2006-C.E., dated 1-3-2006 (Sl. No. 50). The appellant thus have a strong prima facie in their favour and hence the requirement of pre-deposit of duty demand, interest and penalty is waived for hearing the appeal and recovery thereof is stayed till disposal of the appeal - Stay granted.
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2012 (8) TMI 829
Waiver of pre-deposit of the penalty - Penalty under Rule 26 - Held that:- appellant has been charged and adjudicating authority has found that the appellant had issued only invoices for the materials and has not actually cleared the finished goods to the recipient i.e. M/s. Nisha Industries. We find that on 07.08.12 appeal of M/s. Nisha Industries came up before us and in that case also, the first appellate authority had dismissed the appeal for non-compliance. While hearing and disposing the appeal, we had directed M/s. Nisha Industries to deposit some amount and go before the first appellate authority - Conditional stay granted.
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2012 (8) TMI 828
Waiver of pre deposit - Notification No. 67/95 - Clearance of molasses - Held that:- The Commissioner has categorically held that the appellants have exercised the option under Rule 6(3A) of the CENVAT Credit Rules. It is the case of the appellant that the credit attributable to the exempted products is only Rs. 1,78,261/- which has been reversed periodically at the end of every month. We prima facie agree with the views of the learned advocate that in view of the option having been exercised under Rule 6(3A) of the CENVAT Credit Rules, 2004, the appellant should be extended the benefit of the Notification No. 67/95. Therefore, we hold that the appellants have made out a strong case for waiver of the dues as per the impugned order - Stay granted.
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2012 (8) TMI 827
Condonation of delay - Delay of 2 years - Delay due to non communication of dismissal of appeal - Held that:- It is claimed by the appellant that Shri Sunil Kumar Agrawal due to personal difficulty could not communicate the order of dismissal of appeal to the appellant. We are not satisfied with the aforesaid explanation. From the record it is evident that the appeal has been filed after a delay of almost 2 years. It is highly improbable that during this period of 2 years the appellant was not in contact with his authorized representative Shri Sunil Kumar Agrawal.
The appellant has placed on record a copy of Order-in-Appeal No. 111/RPR-I/2010, dated 25-3-2010 in his own case. In the aforesaid order, the Commissioner (Appeals) has recorded that Shri Sunil Agrawal, Consultant of the appellant appeared for personal hearing on 25-2-2010. From this it is evident that even after passing of the impugned order in December 2009 Shri Sunil Agrawal, C.A. continued to represent the appellant in excise matter. Therefore, it is highly improbable that Sunil Agrawal would not have communicated the dismissal of appeal to the appellant. Further though the explanation given for delay is that due to personal difficulty Shri Sunil Kumar, Chartered Accountant could not communicate the impugned order to the appellant, affidavit of Shri Sunil Kumar Agrawal has not been filed to support this averment - The appellant has been grossly negligent in this matter - Condonation denied.
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2012 (8) TMI 826
Penalty under Rule 26 - Confiscation of goods - Held that:- Penalty imposed on the appellant under Rule 26 of the Central Excise Rules, 2002 is unwarranted for more than one reason. Firstly, the appellant herein in his statement before the authorities has categorically stated that he is SSI manufacturer of goods and does not avail Cenvat credit of duty paid on raw materials. It is also on record that the appellant herein had procured formaldehyde from M/s. Windson Chemical Industries only on the ground that the input supplier had quoted rates lower than the market rates. There is no dispute as to the receipts of the goods in the factory premises of the current appellant. In my considered view, if an assessee is procuring a material which is quoted lower than a market rate, it is indeed a business decision made by him to avail the benefit of lower rate of the inputs. This cannot be faulted inasmuch as there being a categorical admission of the appellant as to the receipt of the material and payments thereto made in cheque as well as in cash.
In the absence of any such contrary evidence, in my considered view, the penalty imposed on the appellant is unwarranted. Secondly, I find that the show cause notice in this case seeks to impose penalty on M/s. Pragati Polymers which is a partnership firm while the adjudicating authority has imposed penalty on the current appellant Shri V.N. Patel, who is a partner of the said Pragati Polymers, in the entire show cause notice, there is no whisper or allegation as to the current appellant being put on notice that penalty is sought to be imposed on him and he should give reply for the same. In the absence of any such show cause notice to the appellant, the imposition of the penalty on the appellant is non est, as there being no show cause notice issued to the appellant as an individual - Decided in favour of assessee.
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2012 (8) TMI 825
Duty demand - Whether duty of excise was leviable on Oxygen, Nitrogen and Argon gases vented out to the atmosphere during the periods of disputes - Held that:- respondent was constrained, by the technology adopted by them for continuous manufacture of the gases, to allow some volume of the three gases to escape into the air to prevent damage of the pipeline due to accumulation of high pressure that might arise in the event of the consumers inability to ensure steady consumption of the gases supplied by the respondent. After noting this factual situation unique to the manufacture of gaseous products like Oxygen, Nitrogen and Argon, this Bench, in the respondent’s own case, held against leviability of excise duty on the gases which were vented out to the atmosphere.
gases which were vented out in the atmosphere are exempted from excise duty. The show cause notice admits the facts of venting out of the gases in the air. The Revenue has not produced any evidence that the appellants have collected any consideration of price for the gases which have been vented out in the atmosphere. The appellants have established that they have not received any consideration for the gases which have been vented out in the air. The Revenue is bound by the Board’s Circular as held by the Apex Court in the case of Dhiren Chemical Industries [2001 (12) TMI 3 - SUPREME COURT OF INDIA] - Decided against Revenue.
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2012 (8) TMI 824
CENVAT Credit - Courier services - Held that:- Commissioner (Appeals) while passing the order has discussed the rules relating to input service and has relied upon the decision of the Tribunal wherein it was held that credit of service tax paid on courier services utilised for dispatch of documents/samples/goods to customers is admissible - Commissioner’s reliance on those decisions is appropriate and no evidence has been produced by the Revenue to show that the courier services were not used for the purpose for which the respondents have claimed to have been used - Following decision of CCE Raipur Vs. HEG Ltd. [2009 (7) TMI 562 - CESTAT, NEW DELHI], Rohit Surfuctants Pvt. Ltd. Vs. CCE [2008 (12) TMI 202 - CESTAT, NEW DELHI], CCE Vs. Deloitte Tax Services India Pvt. Ltd. [2008 (3) TMI 35 - CESTAT, BANGALORE] and Cadila Healthcare Ltd. Vs. CCE [2009 (8) TMI 172 - CESTAT, AHMEDABAD] - Decided against Revenue.
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2012 (8) TMI 823
CENVAT Credit - Custom House Agent services - Revenue contends that wrong availment of CENVAT Credit was there since this service does not fall under input service - Held that:- in case of exports of goods on F.O.B. basis, load port has to be considered as place of removal and therefore credit is admissible. Since Commissioner (Appeals) has relied upon the decision of this Tribunal and no contrary decision of a higher forum has been produced before me for differing with the decisions of the Tribunal relied upon by the Commissioner - Following decisions of CCE Vs. Adani Pharmachem Pvt. Ltd. [2008 (7) TMI 102 - CESTAT AHMEDABAD], CCE Rajkot Vs. Rolex Rings Pvt. Ltd. [2008 (2) TMI 770 - CESTAT, AHMEDABAD] and CCE Vs. Vhamundi Textiles (Silk Mills) Ltd. [2010 (4) TMI 450 - CESTAT, BANGALORE] - Decided against Revenue.
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2012 (8) TMI 822
Waiver of pre-deposit of Cenvat credit - Cenvat/Modvat Inputs and capital goods used in mines - Held that:- undisputedly, the mines are 100% captive mines which are allotted to the applicant for production of coal and iron ore. The coal extracted/produced are ultimately used in or in relation to the manufacture of finished products at their factory at Gamharia. Similarly, the iron ores extracted/produced at their mines at Bokna are used in the manufacture of finished products. It is also not in dispute that the applicant availed proportionate credit of the Service Tax to the extent the iron ores of the sizes between 5 mm to 18 mm are brought to their Gamharia factory from Bokna mines and used in or in relation to the manufacture of the final products. We also find, on a plain reading of the definition of ‘input service’, prescribed at Rule 2(l) of Cenvat Credit Rules, 2004, that procurement of inputs is specifically included in the list of services mentioned under the said definition. Besides, we also find that the input services used in the production of coal and iron ore at the respective mines, are not in dispute. Since these coal ores are ultimately used in the factory of Gamharia in the manufacture of finished products, the Cenvat credit on the same cannot be denied. - applicant are able to make out a prima facie case for total waiver of pre-deposit of duty and penalty - Stay granted.
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2012 (8) TMI 821
Maintainability of appeal - Authorization under law - Improper authorization order of committee of commissioner - Date not mentioned - Section 35B - Held that:- First page and signature of members of committee not dated as required under law - Not clear whether decision of committee finally took place - Appeal not maintainable.
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2012 (8) TMI 820
Waiver of pre deposit - Benefit of exemption of Notification No. 44/2001 - Held that:- appellant herein is eligible to avail benefit of exemption of Notification No. 44/2001 for the clearances made to advance authorisation order holder. In this case, the appellant has discharged the duty liability on the goods - there is no logic in the show cause notice as to the demand of the differential duty from the appellant as said show cause notice invokes the extended period time limitation only on the ground that appellant have availed of benefit of notification but has also paid the duty. It is also not very clear how the value of goods that has been imported by the advance licence holder can be considered for the value of the goods cleared from the appellant’s premises under the Central Excise Act and more specifically Section 4. In our considered view, as the goods are cleared by the appellant from his factory, the issue comes under Section 4 of the Central Excise Act, wherein the appellant is required to discharge duty on transaction value. There is no evidence to indicate that the said value is incorrect or there is any flow back. We find that appellants have made out a prima facie case for the waiver of pre-deposit of the amounts involved. - Stay granted.
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