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Central Excise - Case Laws
Showing 61 to 80 of 165 Records
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2013 (4) TMI 470
Waiver of pre-deposit of duty - applicant is a 100% EOU and clearing the goods to DTA availing the benefit of Notification No.30/2004-CE - Revenue contended that this Notification is not applicable in respect of 100% EOU. – Held that - Provisions of Notification No.23/2003-CE are applicable in respect of the goods cleared by 100% EOU to DTA and not the provisions of Notification No.30/2004-CEt. So is not a fit case for total waiver of pre-deposit of dues adjudged.
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2013 (4) TMI 469
Cenvat Cerdit - Wrong availment - payment of excise duty by the supplier wrongly - Penalty under Rule 15 read with Section 11AC - Held that :- in Pricol Ltd. v. CCE (2008 (11) TMI 574 - CESTAT, CHENNAI ) it was held that the buyer is entitled to credit of entire amount of duty paid by it towards supplies of liquid nitrogen gas.
There is no dispute about the fact that the appellant has taken CENVAT credit of the duty paid by them. Whether the duty is paid rightly or wrongly, is not the concern of the appellant who is only a recipient of the goods/service. So long as duty is paid either on the goods or the service, appellant is rightly entitled for the credit. This Tribunal in their own case for the previous period has allowed such credit.
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2013 (4) TMI 468
Claim of duty drawback on aggregates - adjudicating authority rejected the applicants claim for drawback of the duty on “aggregates” on the ground that the applicant was not liable to pay duty on the aggregates - Held that:- Section 5A(1A) would apply only in the case where the exemption from the whole of the duty is granted absolutely - When the notification grants exemption from the whole of the duty by stipulating the condition in the notification then such notification is not covered under Section 5A(1). i.e. unconditionally, no duty was payable on aggregate/part of tractors.
Interpretation of notification no. 6/2002 - sr. no. 296 - held that:- it is evident that the relevant entry provides for description of excisable goods and column No. (5) specified the condition, Sr. No. 296 of the said Notification No. 6/2002-C.E. provides “parts, used within the factory of production for manufacture of goods of heading 8701” in column No. (3) and Nil condition in column No. (5). Thus, all the parts used within the factory of production for manufacture of goods falling under 8701 attracts nil duty without any condition. The details mentioned in column (3) is not in the nature of condition but in the nature of how it is to be consumed.
The exemption is available to all goods captively consumed. Hence the exemption contained in the Notification being absolute/ unconditional - No refund or duty drawback - decided against the assessee.
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2013 (4) TMI 467
Valuation - Deductions on equalized basis - sale through depot - deductions from the invoice price on account of freight, local taxes, additional trade discounts etc on equalized basis - Held that:- it is not open to the adjudicating authority to deny the impugned deductions, claimed on equalised basis, since the order of the Tribunal dated 15-06-09 and the order of the Allahabad High Court dated 05-04-2011 were not appealed against - verify the correctness of the figures claimed by the appellants and not pass any order on the issue whether such deductions can be allowed.
Secondly we note that the appellant is a multi-locational, multi-products company with turnover of more than Rs. 4000 crores. The Appellants have produced certificate from a chartered accountant certifying the correctness of deductions claimed. If the adjudicating authority is not satisfied with the certificate he may cause verification as deemed necessary by him. - If the adjudicating authority is rejecting the certificate given by the chartered accountant the reasons why the certificate is factually not correct should be recorded. - Decided in favor of assessee.
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2013 (4) TMI 438
Duty exemption notification No.162/86 dt. 1.3.86 denied - Water tanker lorries cleared without payment of duty by availing exemption Notification - Commissioner confirmed the demand of duty as proposed in the Show Cause Notices - Held that:- In view of Board’s circular dated 13.1.1989 no hesitation to hold that, in the present case, the fabricated water tank, mounted on chassis would be considered as parts and components captively used for building on chassis of a motor vehicle and covered under Notification No.9/96-CE (NT) dt. 17.5.96 and exempted from duty for the period commencing from 28.2.1993 to 28.2.1994. Accordingly, set aside the order of the Commissioner (Appeals) and uphold the order of the original authority subject to demand of duty for the period 28.2.1993 to 28.2.1994 would be dropped. In favour of assessee.
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2013 (4) TMI 436
Admissibility of credit – Extended period of limitation – penalty u/s 11AC - Appellant has not contested the issue on merits that credit is not admissible. Appellants agitating that extended period cannot be invoked and penalties cannot be imposed in this case as contrary judgments on admissibility of Cenvat credit on disputed items were existing during the relevant period. - Held that - In this case ITC Ltd. vs. CCE, Salem [2013 (1) TMI 555] this is an issue of interpretation as to whether the assessees are entitled to credit or not therefore, extended period of limitation is not invocable in view of this observation, demand is restricted to the normal period of limitation as discussed above. So far as imposition of penalty upon the appellant is concerned, it is observed that the issue of admissibility of Cenvat credit on disputed items was subject matter of litigation and several decisions were in favour of the litigants. Under these circumstances, no penalty under Rule 15(2) of the Cenvat credit Rule, read with Sec. 11AC of the Central Excise Act, 1944, is attracted in the present proceedings.
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2013 (4) TMI 435
Waiver of pre-deposit of duty/interest/penalty - violation of principles natural justice as the lower authorities did not give copies of the seized documents but granted personal hearing - Revenue submits that despite there being three opportunities given to appellant, he had sought an adjournment.
Held that - Since we are not happy with the conduct of the appellants, in order to ensure that the main appellant and other appellants appear before the adjudicating authority and cooperate in the proceedings, we direct the main appellant to deposit an amount of Rs. 5 lacs within four weeks from the date of receipt of certified copy of this order and produce evidence before the adjudicating authority. appeals are allowed by way of remand.
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2013 (4) TMI 434
Classification under Central Excise Tariff Act, 1985 - Demand of duty - The respondents paid duty at the spindle stage and also conducted pre-weaving process - The duty is on ad valorem basis should pay the duty on the value including all expenses incurred - Held that:- We find that sizing is not covered under any of the Notifications prevailing during the period of dispute in these appeals - Duty is liable to be paid on the value of sized yarn by the appellants during the relevant period. Similar view was taken by the Tribunal in the case of Mafatlal Industries Ltd. v. C.C.E.(2004 (6) TMI 429 - CESTAT, MUMBAI).
We accordingly, hold that duty on sized yarn falling under Chapters 52 and 55 of Tariff is payable at ad valorem rates - We set side the Orders-in-Appeal dropping the demand pertaining to the process of sizing. However, we uphold the Orders-in-Appeal dropping the demand on account of other processes - The matter is remanded back to the original authority
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2013 (4) TMI 433
100% EOU allowed to make DTA clearances - Duty paid under proviso to Section 3(1) of the Central Excise Act, 1944 read with duty exemption under Notification No. 2/95-C - Duty free import of the inputs had been made - Manufacture U/s 2(f) of the Central Excise Act - Held that:- If the process undertaken by the respondent does not amount to manufacture, the stand of the department would be correct and the respondent would be liable to pay customs duty in terms of Condition No. 7 of the Exemption Notification No. 53/97-Customs - But if the process undertaken by the respondent amounts to manufacture, they would be liable to pay Central Excise duty under proviso to Section 3(1) of the Central Excise Act, 1944 read with duty exemption Notification No. 2/95-C.E - However, for deciding as to whether the process undertaken by the respondent amounts to manufacture or not, this matter has to be remanded to the original adjudicating authority.
Condition No. 7 of the Notification No. 53/97-Cus., under which the duty free import of the inputs had been made, they would be required to pay customs duty on the inputs used in the manufacture of their finished products in an amount equal to the customs duty payable on the import of their finished products i.e. scrap
The impugned order is set aside and the matter is remanded to the original adjudicating authority for de novo decision on this issue - The appeal is allowed by way of remand - The cross objection filed by the Respondent also stands disposed off.
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2013 (4) TMI 432
100% EOU - DTA Clearance - who is liable to pay duty i.e. purchaser of the goods or 100% EOU - binding precedence of earlier decision - Held that:- in the appellants own case for subsequent period on the identical facts and issue [2008 (4) TMI 670 - CESTAT, Mumbai], this Tribunal has passed the order in favour of the appellants. Now the only question before us on today is that whether the order, passed by this Tribunal in appellants own case on identical facts and issues is binding on us or not?
In the case of Sant Lal Gupta & Ors. (2010 (10) TMI 194 - SUPREME COURT OF INDIA). The Hon’ble Apex Court has observed as under:- A coordinate bench cannot comment upon the discretion exercise or judgement rendered by another coordinate bench of the same court. The rule of precedent is binding for the reason that there is a desire to secure uniformity and certainty in law. Thus, in judicial administration precedents which enunciates rules of law form the foundation of the administration of justice under our system. Therefore, it has always been insisted that the decision of a coordinate bench must be followed.
We are bound to follow the precedent decision in these appeals - Accordingly, we find that both the issue in this case has been decided by this Tribunal earlier in appellants own case on similar facts and identical issues - Accordingly Central Excise duty need not be discharged by 100% EOU & entitled for the benefit of Notification 2/95. - Decided in favor of assessee.
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2013 (4) TMI 411
Penalty on employee - Held that:- Appellant though reporting directly to the management but was aware of the clandestine activities of the main unit and was also aware that the goods were clandestinely cleared on cash payments.
Thus looking to the extent of involvement of the appellant it cannot be said that he was only a paid employee and getting instructions from his superiors on day to day small matters. However, taking into consideration the fact that the main offender in this case has gone away with 25% of penalty payment under Section 11AC, therefore it is felt that a penalty of Rs.25,000/- will meet the ends of justice to be imposed upon the appellant under Rule 26 of the Central Excise Rules. Appeal of the appellant accordingly is allowed.
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2013 (4) TMI 410
Eligibility for cenvat credit - welding electrodes used for repair and maintenance of plant and machinery - Held that:- As decided in Ambuja Cements Eastern Ltd., (2010 (4) TMI 429 - CHHAITISGARH HIGH COURT), Hindustan Zinc Ltd. (2008 (7) TMI 55 - HIGH COURT RAJASTHAN), CCE, Bangalore-I vs. Alfred Herbert (India) Ltd. [2010 (4) TMI 424 - KARNATAKA HIGH COURT] since without repair and maintenance, manufacturing operations, though theoretically possible, are not commercially feasible, the same has to be treated as an activity having nexus with manufacture and hence any inputs used for repair and maintenance would be eligible for cenvat credit. - order denying the cenvat credit is not sustainable.
Rent a cab service availed for transportation of their employees from the residence to the factory and back - Held that:- Decided in favour of the appellant as relying on Stanzen Toyotetsu India Pvt. Ltd. [2011 (4) TMI 201 - KARNATAKA HIGH COURT), CCE, Bangalore vs. Bell Ceramics Ltd. [2011 (9) TMI 792 - KARNATAKA HIGH COURT].
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2013 (4) TMI 409
Cenvat credit denied - paints and thinners - Held that:- Paints and thinners undisputedly have been used for applying on the various machinery. The paint is specifically covered by the definition of input as given in Rule 2(k) of the Cenvat Credit Rules, 2004 and, therefore, the impugned order denying cenvat credit is not sustainable.
Welding electrodes - Held that:- The welding electrodes can be used either for fabrication of new machinery or its part or for repair and maintenance. While in the first case, the same would be eligible for cenvat credit as input in the second case the same would be eligible for cenvat credit in the case of Ambuja Cements Eastern Ltd., (2010 (4) TMI 429 - CHHAITISGARH HIGH COURT ) and Hindustan Zinc Ltd. (2008 (7) TMI 55 - HIGH COURT RAJASTHAN) - impugned order denying the cenvat credit is not sustainable.
H.R. Coil, M.S. Girder, G.C. Sheets, M.S. Channels, shape and section etc. - Held that:- The appellants plea with regard to evidence given in respect of use of these items has not been considered at all and simply a finding has been that these items are generally used for making of supporting structures for machinery and therefore would not be eligible for cenvat credit in view of the judgment of Vandana Global Ltd. vs. CCE, Raipur (2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)). In cases, where the steel items, in question, have been used for fabrication of sugar mill machinery or its part, the same would be eligible for cenvat credit as input. Thus before rejecting the appellant’s claim in this regard this evidence must be carefully examined for which this matter would have to be remanded to the original adjudicating authority.
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2013 (4) TMI 408
Cenvat credit for the services obtained at site where undertaking installation works disallowed - Held that:- It is evident from the Order in Appeal that with respect of certain service tax credit, appellants have been allowed to take credit as per the findings. With respect to remaining entries, appellant could not establish that the contracts include commissioning and installation charges in the contracted value. It is also observed from one contract dated 23/06/2006 entered by the appellant with AKUMS Drugs & Pharmaceuticals Ltd., that freight and transit insurance are required to be paid extra.
In view of such contracts entered into by the appellants with their service providers, it cannot be said that in all the situations, installation and erection, transit insurance, freight have been included as a complete package for considering the contracts to be turn-key project. All these details are required to be gone into to establish that the contracts are only on turn-key basis in order to hold that the goods are sold as turn-key project and that sale is extended to the installation site. If all the elements of cost of installation and erection, transit insurance, freight etc. are included in the contracted value, then as per Circular No.97/8/2007-ST dated 23/08/2007 issued by CBEC, the point of sale will be the installation site and service tax credit will be admissible to the appellant for the services obtained from other service providers at the installation site. Thus the order passed by the Commissioner (A) under OIA set aside and the matter is remanded to the original adjudicating authority for deciding the issue afresh after giving a personal hearing to the appellant. The appeal is allowed by way of remand.
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2013 (4) TMI 407
Reduction of penalty - Held that:- As the goods clandestinely removed are not available for confiscation, but the appellant had the knowledge of clandestine activity being undertaken. However, looking to the facts and circumstances of the case, a penalty of Rs.30,000/- will meet the ends of justice and accordingly penalty of Rs.60,000/- imposed upon the appellant is reduced to Rs.30,000/-.
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2013 (4) TMI 406
Cenvat credit admissibility on the basis of invoice on which serial number is hand-written - Held that:- There is no dispute that the inputs were duty paid and duly received by the appellant and used in the manufacture of excisable goods. If there was any discrepancy, the same could have been verified from the suppliers end by the jurisdictional Central Excise officers. The appellant has got such a certificate from the supplier of the inputs with a certification of the jurisdictional Superintendent confirming that the invoices stated in the letter dated 10/10/2011 of the supplier are checked from the records. This argument was taken up by the appellant before the original adjudicating authority, but no findings were given by the lower authority as to why verification made by the jurisdictional Central Excise authority of the supplier cannot be accepted.
The judgment of the Commissioner, Central Excise vs. Chandra Laxmi Tempered Glass Co. Pvt. Ltd. [2008 (7) TMI 257 - HIMACHAL PRADESH HIGH COURT], relied upon by the A.R. is not applicable because the same was pronounced with respect to Rule 57G of the earlier Central Excise Rules, 1944 when there was a specific obligation under Rules 52A to have serially printed invoices. It is once again emphasized that substantial benefit cannot be denied to the assessee on the basis of procedural irregularity when under the new Central Excise Rule 11, there is no obligation of printed serial number on the invoices. Accordingly, the appeal of the appellant is allowed.
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2013 (4) TMI 385
Belated return - Held that:- The appellant herein had received the Order-in-Original on 16.01.2011 and he should have filed the appeals by 16.03.2011 and along with applications for condonation of delay by 16.04.2011. It transpires from the records that these appeals are filed on 28.05.2011 before the first appellate authority.
The first appellate authority has correctly dismissed the appeals as barred by limitation as per the provisions of Section 35 of the Central Excise Act, 1944. No interfere in such an order required.
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2013 (4) TMI 384
Cenvat credit on GTA services - Whether the supply made by the appellants is on FOR destination basis and whether the freight element and insurance has been included in the overall price - Held that:- Since all the purchase orders of the appellants are not available, the same are required to be verified with the conditions of the purchase order and those prescribed by CBEC under circular No.97/8/2007-ST dated 23.08.07. The case is therefore remanded back to Commissioner (Appeals) for necessary verification for deciding the admissibility of cenvat credit in remand proceedings.
Service tax credit admissibility relating to maintenance of garden - Held that:- Appellant has made out a strong case because as per the Gujarat Pollution Control Board permission dated 16.03.06 the appellant was required to maintain a garden which is therefore an obligation under the relevant pollution control law and cenvat credit with respect to the services used for maintaining the garden will be admissible and is accordingly allowed.
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2013 (4) TMI 383
Cenvat credit on Outward Freight Services denied - non admissibility under Rule 2(l) of Cenvat Credit Rules, 2004 as the same are beyond the place of removal - demand for the period November 2005 to March 2008 as evident from SCN - Held that:- As decided in Commissioner of Central Excise & Service Tax, LTU, Bangalore vs. ABB Limited [2011 (3) TMI 248 - KARNATAKA HIGH COURT] and Commissioner of Central Excise & Customs vs. Parth Poly Wooven Pvt. Limited [2012 (25) STR 4 (Guj.)2011 (4) TMI 975 - GUJARAT HIGH COURT], wherein it has been held that up to 01.4.2008, due to the prevailing definition, cenvat credit on outward freight service was admissible. In favour of assessee.
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2013 (4) TMI 382
Non discharge of the duty liability for the month of December 2007 to February 2008 - default as per Rule 8(3A) of the Central Excise Rules, 2002 - contested by appellant No.1 that penalty under Rule 25 of the Central Excise Rules not to be imposed - Held that:- The appellant has paid the entire defaulted amount in cash along with interest. Therefore no penalty can be imposed upon the appellant No.1 under Rule 25 of the Central Excise Rules, 2002.
The only penalty which could have been invoked is under Rule 27 of the Central Excise Rules because appellant No.1 has contravened the provisions of Central Excise Rules for making the payments from cenvat credit when they were required to make the payments in cash for each consignment. It is seen from the show cause notice dated 25.11.10 that no penalty under Rule 27 of the Central Excise Rules has been proposed against appellant No.1. Accordingly, the penalties that Rs.9,96,740/- imposed against appellant No.1 is required to be set aside.
So far as imposition of penalties upon appellant No.2 and 3 are concerned, it is seen that the goods were cleared on payment of duty but instead of making the payment in cash the payments were made from cenvat credit. Therefore the goods were cleared on payment of duty and the same was duly reflected in the returns filed by the appellant No.1. Thus it cannot be held that there was any malafide intention on the part of appellant No.2 and 3 to evade payment of duty. The only default in this case was utilising cenvat credit and there is an interest loss to the Revenue from the date of utilisation of cenvat credit till the demand of duty in cash which has been made good by making the payments in cash - all the three appeals filed by the appellants are allowed.
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