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Central Excise - Case Laws
Showing 141 to 160 of 225 Records
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2013 (8) TMI 310 - CESTAT NEW DELHI
Penalty under Section 11AC of the Central Excise Act – Allegation of fraud not mentioned in the Show-Cause Notice – Held that:- Fraud, collusion and any other such ingredient has not been mentioned either in the show cause notice or in the order in original. In the absence of which it is difficult to sustain the penalty equal to duty amount in the present case – Decided against the Revenue.
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2013 (8) TMI 309 - CESTAT NEW DELHI
Cenvat credit in respect of input services namely, errection, commissioning and installation, man-power recruitment and civil construction, used in the employees staff colony, canteen and residence of the Executive Director of the Company - These services were not used directly or indirectly in the manufacture of final products and as such, are not eligible to be classified as ‘input services’ as defined in 2(l) of the Cenvat Credit Rules – Held that:- As per the decision in the case of CCE, Hyderabad vs. M/s. ITC Ltd. reported in [2011 (11) TMI 516 - ANDHRA PRADESH HIGH COURT] , services which are crucial for maintaining staff colony such as lawn mowing, garbage cleaning, maintenance of swimming pool, collection of household garbage, harvest cutting, weeding etc. necessarily had to be considered as ‘input services’ falling within the ambit of Rule 2(l) of the Cenvat credit Rules, 2004 - Disputed services in the present case are not mentioned in the services in the list of activities mentioned in the Andhra Pradesh decision - Hon’ble High Court of Gujarat in the case of M/s. Cadila Healthcare Ltd [2013 (1) TMI 304 - GUJARAT HIGH COURT]., the activities related to business will cover only, in its ambit the activities which are mentioned in Rule 2(l) of the Cenvat Credit Rules which follow the words ‘such as’ – In the present case activities/ services are not covered in any of the services mentioned after the word ‘such as’ – Cenvat Credit not allowed – Decided against the Assessee.
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2013 (8) TMI 308 - CESTAT NEW DELHI
Cenvat Credit/ Modvat Credit on M.S. Sheets and on electrodes - Appellant are engaged in manufacture of V.P. Sugar and Molasses falling under Central Excise Chapter Heading 17.01 and 17.03 of the Central Excise Tariff – Show cause notice issued on the ground that neither M.S.Sheets nor electrodes qualify for as capital goods/inputs under Rule 2(a) of the Cenvat Credit Rule – Held that:- Goods were used in repair and maintenance of the machinery in the factory – Further, relying on the judgment in the case of Ambuja Cements Eastern Ltd [2010 (4) TMI 429 - CHHAITISGARH HIGH COURT], Cenvat Credit is admissible if inputs are used in manufacture of parts and components of the capital goods and also in repairs and maintenance of the capital goods within the factory. Similar decision has been passed in the case of Hindustan Zinc Ltd.[2006 (5) TMI 44 - HIGH COURT RAJASTHAN] - Decided in favor of Assessee.
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2013 (8) TMI 307 - CESTAT NEW DELHI
Limitation - Respondents are engaged in manufacture of CTD Bar, MS Angle, MS Channel, MS Round, MS Square etc - Sale of Roll scrap, a capital goods are cleared as, waste and scrap assessee is required to pay duty on transaction value under Rule 3 (5A) of the Cenvat Credit Rules - A Show Cause Notice dated 23.03.2009 was issued to the respondents demanding duty – Held that:- Audit team visited M/s. Ramesh Industries, Raipur a sister concerned of the Appellant unit and they had knowledge of this facts right from the date of Audit in M/s. Ramesh industries, Raipur i.e. from 2006, but the department failed to make any investigation against appellants unit – Appeal of revenue rejected – Decided against the Revenue.
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2013 (8) TMI 306 - CESTAT NEW DELHI
Cenvat Credit of Service Tax paid on input service in respect of dismantling/handling of unusable material and its transportation - Manufacturing activity undertaken by the appellants comprises of making of concentrate by purification of ores. Entire purification process involves handling of abrasive, corrosive materials and acids which lead to corrosion of metallic and others surfaces which are to be removed periodically from the main machines and are to be replaced with new ones. Appellant has given contract for Dismantling, Sorting and transportation of such scraps from underground area, surface area and mill area to Central Store, wherefrom it is auctioned – Held that:- Activities are basically in relation to repair or renovation of machinery and pipes and are specifically covered under definition of input service – Therefore, appellants are eligible for taking credit in respect of these services – Decided in favor of Assessee.
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2013 (8) TMI 305 - CESTAT CHENNAI
Waiver of pre-deposit - cenvat credit - duty paying documents - M/s. Praveen Foundry Pvt. Ltd. (Applicant No.1) is a manufacturer of castings of automobiles. They purchased MS scrap and SS scrap from registered dealers and used in the manufacture of castings. Original authority confirmed the demand of duty and imposed penalty of equal amount along with interest on the ground that they received MS scrap but the duty paying documents were showing the goods as MS channels and angles, rods, rounds etc – Held that:- Applicant No.2, Shri A. Radhakrishnan, M.D. of Applicant No.1 company in his statement dated 24.9.2008 categorically stated the details regarding process of receiving M.S. scrap, Lab test, storage and use in the manufacturing of finished goods. In the context of the present case, he stated that they received virgin materials and treated them as scrap. Prima facie, it is difficult to accept that a prudent business would use virgin material as scrap and such statement is contrary to the statements of dealers and this virgin materials usually cannot be used in melting scrap in the Furnace. We find that Rule 9 (5) of Cenvat Credit Rules, 2004 provides that the burden of proof regarding admissibility of the Cenvat credit shall lie upon the manufacturer taking such credit. It is apparent from the evidences, namely statements, process of manufacture etc. that the applicant received non-duty paid M.S. scrap, S.S. scrap in the guise of MS & HR plates, MS Wire coil, MS Round coils etc. from various registered dealers and availed cenvat credit, which is not permissible under Cenvat Credit Rules - Prima facie, the applicant failed to discharge the burden of proof that they received duty paid MS scrap, SS scrap on the basis of Central Excise invoices - Applicant No.1 is directed to deposit Rs.13,00,000/-(Rupees Thirteen lakhs only) within 6 weeks - Upon such deposit, predeposit balance duty along with interest and penalty on the applicant-company as well as penalty on its Managing Director (Applicant No.2) shall stand waived.
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2013 (8) TMI 304 - CESTAT NEW DELHI
Cenvat Credit of service tax paid on ‘Outdoor catering Service’ - Respondent unit having more than 250 workers in their factory providing canteen facility to the workers and staff of the factory - Held that: - Cenvat Credit would be inadmissible only to the extent the charges for canteen facility are recovered by the Respondent from employees and to the extent the charges are not recovered from the employees, they would be eligible for Cenvat Credit relying upon the decision in the cases of CCE Nagpur Vs. Ultratech Cement Limited reported in [2010 (10) TMI 13 - BOMBAY HIGH COURT] and also in the case of Commissioner of Central Excise, Ahmedabad-I Vs. Ferromatik Milacron India Ltd. reported in [2010 (4) TMI 649 - GUJARAT HIGH COURT] – Also, number of workers in the respondent’s factory is more than 250 and, therefore, in term of the provisions of factories Act, the appellant are required to provide canteen facility to the workers.
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2013 (8) TMI 303 - CESTAT AHMEDABAD
Waiver of pre-deposit under section 35F of the Central Excise Act - Appellant did not file any stay petition before the Commissioner (Appeals) – Held that:- Appellant had neither deposited the amount confirmed nor filed stay petition before the Commissioner (Appeals). Therefore, the Commissioner (Appeals) has rightly rejected their appeal for non-compliance of the provisions of Section 35 – Decided against the Assessee.
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2013 (8) TMI 302 - CESTAT AHMEDABAD
National Litigation Policy framed by the Central Board of Excise and Customs – Amount involved in litigation – Held that:- As per the National Litigation Policy framed by the Central Board of Excise and Customs, department is required not to file any appeal before the Tribunal in cases where the duty involved is less than Rs. Five lakhs - In the present appeals the duty involved, is nominal and much less than the limit of Rs. Five lakhs – Appeal not maintainable – Decided against the Revenue.
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2013 (8) TMI 301 - CESTAT NEW DELHI
Cenvat Credit – setting of paint shop - items were used in the factory for fabrication and erection of paint shop, which being fixed to the earth structure, is not excisable – Held that:- Objection by the department is absurd, as for permitting capital goods Cenvat credit, what has to be seen is as to whether the goods fall in the Chapters specified in the definition of capital goods or are the items specifically mentioned in the definition of capital goods and secondly whether those goods were used in the factory. The purpose for which the goods were used and whether after use the goods became part of plant and machinery fixed to/embedded to the earth is not relevant - Cenvat credit cannot be denied – Decided in favor of Assessee.
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2013 (8) TMI 270 - ALLAHABAD HIGH COURT
Exemption of not printing MRP as per provisions of Rule 26 of LMPC Rules - Petitioner no.1 is a partnership firm engaged in manufacturing of 'Branded Chewing Tobacco'. The petitioner no.2 is the partner of petitioner no.1 firm - Exemption given under Rule 26 of the LMPC Rules (earlier Rule 34 of SWMPC Rules) to the manufacturers for sale of goods in net weight of less than ten grams or 10 milliliter are exempted from declaring maximum retail price – Held that:- The provisions of Rule required it to print the weight of finished goods on each packing of such goods to be sold or atleast print that the goods content are less than 10 grams in the packets to be sold. In the absence of mentioning the weight of goods contained in every packet, it could not be known at any time that the contents of goods in a particular packet are more or less than exemption limit – Show cause notice has not been given with any bias as the petitioner failed to cooperate in the enquiry and that the investigation/ enquiry is still pending. The petitioner also did not give details for giving effective reply of the facts, which the petitioner treats as jurisdictional facts and on which the exemption is claimed - Writ petition in the absence of the petitioner's cooperation in leading evidence on which he was claiming exemption, is not maintainable.
Limitation – Held that:- Party have willingly, suppressed all the facts and mis-interpreted the provisions of exemption in their favour, to pay less duty on the clearance of their products - Party have willfully suppressed the material facts of non-mentioning the weight on every packet which they were required to print as per the provisions of S.W.M.P.C. Rules/L.M.P.C. Rules, in case they want to seek exemption from printing M.R.P. and accordingly they have paid less amount of duty hence the provisions of Section 11A, as amended, for extended period, are clearly invokable in this case and accordingly the provisions of Section 11AC are also invokable – Decided against the Assessee.
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2013 (8) TMI 269 - ALLAHABAD HIGH COURT
Limitation period for issue of recovery notice under section 11D of the Central Excise Act, 1944 - Respondent mill is engaged in the manufacture and clearance of made up textile articles and processed textile - Respondent has charged and collected the Central Excise Duty in respect of supply of certain 'towels hand white' ,but has failed to deposit the Central Excise Duty - The period for which the duty has not been paid on the goods i.e. hand towels is April, 1996 to June, 1996. The show-cause notice is dated 6th of March, 2003 and was served on 3rd of February, 2004, beyond the maximum prescribed period of limitation under section 11A of the Central Excise Act, 1944 – Held that:- Section-11A is very widely worded and provides for recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. All possible eventuality of loss of revenue to the Central Government is comprehended therein - Taking that it is a case of recovery of duty either not levied or not paid even though the prescribed period of limitation in such cases is five years from the relevant date - The show-cause notice was issued and served beyond the extended period of five years, the action of the appellant is clearly barred by time. Section 11A covers the field of any duty of excise not levied or not paid or has been short levied or short paid etc - It is section 11A which is attracted and not section 11D of the Act – Decided against the Revenue.
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2013 (8) TMI 268 - GUJARAT HIGH COURT
Interest on refund under section 11BB of the Central Excise Act - Application for refund was filed by the petitioner on March 29, 2000 - The amount claimed as refund being the duty paid and continued to lie as pre-deposit - Tribunal decided in favour of the present appellants on September 3, 2001, and also further held that payment of interest would start running from September 3, 2001 – Held that:- Any delay having been occasioned in refunding the amount beyond the period of thee months, would attract interest - The refund of amount considered as predeposit would be at par with the refund of duty and the interest would be payable on such pre-deposit, relying upon the judgment of the Apex Court in the case of Commissioner of Central Excise Vs. I.T.C. Limited [2004(12)TMI 90 – SUPREME COURT OF INDIA] - The refund of amount of Rs.20 Lacs had been made on February 4, 2004. Thus, there has been a delay of considerable period in returning the amount after the Appellate Tribunal held in favour of the appellants assessee. The interest on the pre-deposit is, therefore, required to be given - The claim was not barred by period prescribed under sub-section (1) of Section 11B of the Central Excise Act - Held to be entitled to the interest on the delayed refund of amount of Rs.20 Lacs for the period from September 3, 2001 to February 4, 2004 – Decided in favor of Assessee.
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2013 (8) TMI 267 - CESTAT CHENNAI
Waiver of pre-deposit - Clandestine Removal of goods – Held that:- Allegation regarding clandestine removal is based only on the Sales Manager Report (SMR) and not corroborated by evidences showing clandestine manufacture and clearance. The sharing of budget expenditure for advertisement does not provide any better evidence – Relying upon the decision in the case of CCE Meerut Vs Moon Beverages Ltd. - 2002 (150) ELT 976 (Tri.-Del.).- Decided in favor of Assessee.
SSI exemption – Using the brand name of others - Wrong availment of SSI exemption for goods using brand name Bisleri Club Soda - Brand name was owned by M/s. Parle (Exports) Ltd. (PEL, for short) and not AMPL – Held that:- Relying upon the decision in the case of CCE Bangalore Vs Brindavan Beverages (P) Ltd [ 2007 (6) TMI 4 - SUPREME COURT OF INDIA] has held that in such circumstances, extended period of time cannot be invoked against the assessee for invoking any demand because the arrangement between PEL and AMPL was not known to the assessee therein
SSI exemption – Using the brand name of others - Wrong availment of SSI exemption for goods using brand name CITRA – Held that:- Relying upon the decision in the case of CCE Bangalore Vs Brindavan Beverages (P) Ltd [ 2007 (6) TMI 4 - SUPREME COURT OF INDIA], it is held that applicant was not aware of the arrangement between LFFPL and PEL and suppression cannot be alleged against them - Deposit of Rs.10 lakhs already made by applicant in this matter which is sufficient for admission of the appeal.
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2013 (8) TMI 266 - CESTAT AHMEDABAD
Waiver of pre-deposit – clandestine removal – Held that:- Following the judgment of Hon'ble High Court of Gujarat in the identical case of Belgium Glass and Ceramics………………….., it is directed to assessee to deposit an amount which is equivalent to 8% of the total duty confirmed by the adjudicating authority - Amount is short to the tune of Rs. 8 Lakhs, as the appellant is required to deposit approximately Rs. 26 Lakhs and they have deposited only Rs. 18 Lakhs. Accordingly, appellant is directed to further deposit an amount of Rs. 8,00,000/- (Rupees eight lakhs only) within a period of eight weeks.
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2013 (8) TMI 265 - CESTAT CHENNAI
Waiver of pre-deposit – Stay application - Exemption under notification No.108/95-CE dt. 28.8.1995 is not available when goods are supplied to contractors executing approved projects – Held that:- Objection of the Revenue that exemption is not available when goods are supplied to contractors executing approved projects is not sustainable in view of the decision of the Hon. Madras High Court in the case of CCE Vs. Caterpillar India Pvt Ltd-[2013 (7) TMI 244].
Benefit of Notification No.108/95-CE dt. 28.8.1995 - Explanation 2 added to Notification 108/95-CE by Notification No. 13/2008-CE dt. 1.3.2008 – Held that:- Demand can be confirmed only based on a specific finding that the goods were removed outside the project and not based on a probability that goods can be removed out of the project because the exemption is not with reference to the nature of goods - Explanation 2 is only to the effect that exemption is available to goods which are not withdrawn from the project by the supplier or contractor - Appeal is admitted without any pre-deposit.
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2013 (8) TMI 264 - CESTAT NEW DELHI
Clandestine Removal of goods - During the physical verification of the goods in the factory by the Central Excise officers on 22nd December 2007 shortage of M.S. bars of 131.600 MTs was noticed – Held that:- Shortage was admitted by shri Ashish Sharma in his statement dated 22.12.2007. He admitted that due to holiday on 21.12.2007 no invoice should be made to show clearance made on 22.12.2007. Since the goods were cleared without payment of duty these clearances are to be treated as clandestine removal of the goods – Decided against the Assessee.
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2013 (8) TMI 263 - CESTAT NEW DELHI
Cenvat credit of excise duty paid on welding electrodes is admissible to the assesse as Cenvat Credit – Relying upon the decision of Chhattisgarh High Court in case of Ambuja Cement Eastern Ltd. Vs. CCE [2010 (4) TMI 429 - CHHAITISGARH HIGH COURT], and the judgement of Hon’ble High Court of Karnataka High Court in case of Alfred Herbert (India) Ltd.[ 2010 (4) TMI 424 - KARNATAKA HIGH COURT], it has been held that the Cenvat credit in the duty paid on the welding electrodes is admissible to the assessee – Decided in favor of Assessee.
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2013 (8) TMI 232 - CESTAT AHMEDABAD
Cenvat Credit - Input services - Commission paid to the foreign agents - whether the manufacturer is entitled for credit in respect of credit of Service Tax paid on commission agents service. – Held that:- Hon'ble High Court of Gujarat in the case of Cadila Healthcare Ltd. [2013 (1) TMI 304 - GUJARAT HIGH COURT] (Guj.), held in favour of the Revenue - Court is unable to concur with the contrary view taken by the Punjab and Haryana High Court in Commissioner of Central Excise, Ludhiana v. Ambika Overseas [2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT] – Decided against the Assessee.
Limitation - Held that:- In the case of Cadila Healthcare Ltd., the decision of the Tribunal was in favour of the manufacturer, therefore, it can not be presumed any suppression of fact – Merit in the contention of the applicant that the demand by invoking extended period of limitation is not sustainable.
Held that:- Applicants are directed to deposit an amount of Rs.1 Crore (Rupees One Crore only) within a period of eight weeks – Subject to compliance of pre-deposit, stay granted.
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2013 (8) TMI 231 - CESTAT AHMEDABAD
Penalty increased by First Appellate Authority on the appeal filed by Assessee – Held that:- The first appellate authority has not issued any show cause notice to the appellant for enhancement of the penalty, despite there being statutory provisions in Section 35A of Central Excise Act, 1944. To that extent, the impugned order of the first appellate authority is inconsistent with the provisions of Central Excise Act, 1944 and is unsustainable on that ground itself - The enhancement of penalty by the first appellate authority without issuing show cause notice to the appellant is held as unsustainable - Decided in favor of Assessee
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