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Central Excise - Case Laws
Showing 41 to 60 of 247 Records
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2013 (9) TMI 998 - CESTAT MUMBAI
Benefit of Notification No. 30/2004-C.E., dated 9-7-2004 - Applicability of Rule 6(3) of the Cenvat Credit Rules, 2004 - Held that:- As per the show cause notice, in respect of the demand amounting to ₹ 2,50,81,937/- the cotton fabrics have been exported under bond and, therefore, in terms of Rule 6(6)(v) of Cenvat Credit Rules the demand is unsustainable. As regards the balance amount of ₹ 76,81,014/- wherein the cotton fabrics have been exported under claim for rebate of duty, it is seen that, at the material point of time, there were two rates of duty applicable to cotton fabrics - one a ‘nil’ rate prescribed under Notification No. 29/2004-C.E. as amended and the other ‘4% adv.’ prescribed under Notification No. 59/2008-C.E., dated 7-12-2008. Both these rates were unconditional rates. Therefore, it is not the case that the goods have been completely exempted. When two different Notifications prescribe two rates of duty, the assessee is at liberty to opt for whichever is beneficial to him. It is further on record that the assessee had consulted the department and as per the department’s advice, the assessee had opted for payment of duty @ 4% under claim for rebate in respect of exports in some cases. Therefore, it is not a situation where the duty credit on inputs were availed in respect of exempted goods and dutiable goods simultaneously. Hence the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004 is not applicable in the facts of the case - Decided in favour of assessee.
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2013 (9) TMI 997 - GOVERNMENT OF INDIA
Remission of duty - Goods damaged due to flood - Commissioner allowed remission - Held that:- Damaged finished goods and inputs are still lying in the factory. This fact is not disputed at all. However, original authority confirmed the duty demand in finished goods as well as inputs along with interest and penalty. Commissioner (Appeals) has set aside the demand of ₹ 1,27,655/- on finished goods since the same are removed from factory and directed the party to file remission application under Rule 21 of Central Excise Rules, 2002. - duty is chargeable under Section 3 of Central Excise Act, 1944 but the payment of duty is deferred till removal of goods from the factory under Rule 8 of Central Excise Rules, 2002. This fact is not disputed by department also. Finished goods are still lying in the factory. The loss of goods due to floods is established with available documentary evidences of insurance report and intimation given by party. - The loss of goods due to floods is by natural causes or by unavoidable accident and the damage of goods are claimed to be unfit for marketing and their remission of duty involved on such goods is to be considered under Rule 21 of Central Excise Rules, 2002 - reversal of input credit when remission granted on final product destroyed in fire/accident is not required. The ratio of said judgments is squarely application to this case. As such, the view taken by Commissioner (Appeals) cannot be faulted with. - No infirmity in impugned order - Decided against revenue.
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2013 (9) TMI 996 - GOVERNMENT OF INDIA
Denial of rebate claim - Non production of duplicate copy of invoice - Held that:- Rebate claim of duty paid on exported goods pertaining to two Central Excise Invoice Nos. 242 and 244 both dated 18-8-2009 was disallowed since applicant failed to submit duplicate copy of the invoice. Government notes that the export of duty paid goods is not disputed by the department in this case. As per Para 8.3 of Part I of Chapter 8 of C.B.E. & C. Excise Manual of Supplementary Instruction, one of the documents required to be enclosed with rebate claim is invoice issued under Rule 11 of Central Excise Rules, 2002. It does not specify that only duplicate copy of invoice is to be produced as notified in the Mumbai-III Committee Trade Notice No. 2/2006, dated 22-3-2006. In this case, applicant has submitted original invoice since duplicate copy is misplaced. This is only a procedural lapse which can be condoned. The substantial benefit of rebate claim cannot be denied for mere minor procedural lapses - Matter remanded back - Decided in favour of assessee.
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2013 (9) TMI 995 - GOVERNMENT OF INDIA
Denial of the benefits of condonation of transit losses - Held that:- From wordings of circular, it is unambigously clear that facility of removal of petroleum products without payment of duty from factory of production to export warehousing continues to be available vide Notification No. 46/2001-C.E. (N.T.), dated 26-6-2001. The said circular has specifically stated that no storage losses in export warehouses will be allowed. - refinery shall be liable to discharge the duty on the quantity cleared from factory itself and there will be no question of any abatement with regard to any losses subsequent to removal from refinery. This clarification pertains to clearance of goods on payment of duty. However, in case goods are cleared under bond without payment of duty, the same clarifiction will also apply since there is no explicit mention of allowing transit losses for such clearances. As per said circular storage losses in export warehouse are not permitted, and therefore there is no reason to allow transit loss in the absence of any explicit provision. - Decision in the case of ONGC [2013 (6) TMI 683 - GOVERNMENT OF INDIA] followed. - Decided in favour of Revenue.
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2013 (9) TMI 994 - GOVERNMENT OF INDIA
Denial of rebate claim - goods were not exported directly from factory - some cases has not been mentioned correctly - goods were cleared without payment of duty under Bond - goods were exported after expiry of 6 months from the date of removal - triplicate copies of ARE-1 were not submitted - Held that:- The procedure laid down in Circular dated 30-1-1997 is not followed by the applicant though in written reply filed by ACCE (Rebate), Raigad, they had claimed to have followed the said procedure. The Jurisdictional Central Excise authorities were not informed about the said export and the goods were cleared for export from godown without supervision/examination by Central Excise Officers, who had to verify the identity of goods and their duty paid character. In such a situation, it cannot be proved that the duty paid goods cleared from factory have actually been exported.
As regard claim where proper rebate sanctioning authority is not mentioned on ARE-1 and other claim where the export is stated to be done under bond without payment of duty on the forwarding letter, the condition of the said procedural lapses are of no help since goods are not exported directly from factory or warehouse and said rebate claim also not admissible
Condition of export of goods within six months from their clearances from factory is a mandatory condition of the Notification No. 19/2004-C.E. (N.T.) and non-compliance of the same renders the rebate claims inadmissible. Applicant has failed to submit any permission granted by Commissioner of Central Excise for extension of said six months period. As such the said rebate claim is rightly rejected.
Triplicate copies of ARE-1 is required to verify duty paid nature of the goods. Commissioner (A) observed that the applicant did not adduce any evidence to prove that triplicate copies of ARE-1 were given to jurisdictional excise officer of the manufacturer for onward submission to the rebate sanctioning authority and in the absence of the same, duty paid on the goods could not be verified. Government is in agreement with findings of Commissioner (Appeals) in this regard. - No infirmity in orders of Commissioner (A) - Decided against assessee.
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2013 (9) TMI 993 - GOVERNMENT OF INDIA
Denial of rebate claim - Reversal of CENVAT Credit - Non payment of excise duty - Held that:- The fundamental condition for determining admissibility of rebate claim is that duty paid excisable goods are exported. In this, case equal amount of Cenvat credit was reversed under Rule 16(2) and said reversal of Cenvat credit cannot be treated as payment of duty for the purpose of Rule 18 of Central Excise Rules, 2002. Since, duty paid excisable goods are not exported in this case, the rebate claim is rightly held inadmissible by original authority as well as appellate authority. - imported goods have been re-exported. So the provision of Section 74 of Customs Act, 1962 are applicable and drawback claim was required to be claimed in terms of the provisions of Section 74 which applicant failed to comply and avail. Adjudicating Authority has also noticed that applicant has shown value in ARE-1 Nos. 1 & 2, dated 1-4-2010 as ₹ 3,08,01,500/- but in the Shipping Bill No. 8338872, dated 9-4-2010, the invoice value was shown as ₹ 1,15,16,681/-. Also the rate of duty applied on the said ARE-1 varied from 10.3% to 16.48% to 14.42% whereas he had reversed the equal amount of Cenvat credit under Rule 16(2) - decided against assessee.
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2013 (9) TMI 992 - GOVERNMENT OF INDIA
Violation of conditions of Bond, CT-I certificate - Exporter procured goods without payment of duty for export under bond under Rule 19 of Central Excise Rules, 2002 on the basis of CT-I certificate No. 1/09-10, dated 5-8-2009 - Held that:- Respondent party has not complied with the conditions of bond B-I as well as CT-I certificate which has authorized him to procure said goods without payment of duty. Exporter was under legal obligation to comply with the conditions of bond and CT-I certificate which he failed to comply. Moreover, Assistant Commissioner of Central Excise (Rebate), Raigarh has issued CT-I certificate for export of goods through port falling in his jurisdiction since in terms of C.B.E. & C. Circular No. 770/3/2004-CX, dated 9-1-2004 and Notification No. 80/2003-C.E. (N.T.), dated 29-10-2003 he was Maritime Commissioner in the Nhava Sheva Port. Government therefore is of the view that demand was rightly confirmed by original authority for exporter’s failure to comply with the conditions of bond, CT-I certificate and Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001 as amended vide Notification No. 80/2003-C.E. (N.T.), dated 29-10-2003. The Commissioner (Appeals) has not given any finding on the said grounds of confirmation of demand by Assistant Commissioner of Central Excise. As such Commissioner (Appeals) has erred in setting aside the said order. - Decided in favour of Revenue.
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2013 (9) TMI 990 - CESTAT NEW DELHI
Impleading of petitioner - Held that:- There is no authorization of the appellant company, authorizing Sh. Ritesh Kumar Goel to file this appeal. In terms of Rule 8(3) of Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 “Every memorandum of appeal/application/Cross-objection shall be signed and verified by the appellant/applicant/respondent or the Principal Officer duly authorised to sign Memorandum of appeal/application/Cross-objection. The appellant/applicant/ respondent or the Consultant or Advocate retained by them shall certify as true the documents produced before the Tribunal.” In this case the appeal memo in respect of the appeal by the appellant company is signed by Sh. Ritesh Kumar Goel as director of the appellant company. However, as mentioned above, the Commissioner’s report shows that he is not the director and as per the affidavit of the applicant no authorization was given by him as Director to Sh. Ritesh Kumar Goel to file appeal on behalf of the company. Sh. Ritesh Kumar Goel who has signed this appeal as Director has, thus, wrongly represented himself as Director. Since the appeal, Stay application and COD application have not been filed by a person who is authorised by the Board of Directors of the appellant company in this regard, the same cannot be entertained in view of the provisions of Rule 8(3) of the CESTAT Procedure Rules, 1982 - Decided against Petitioner.
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2013 (9) TMI 939 - ALLAHABAD HIGH COURT
Cenvat Credit - Duty under Protest – Refund of Duty- waste bagasse emerged - Applicability of Rule 6 for production of exempted and non-dutiable goods – Held that:- Following Balrampur Chini Mills Ltd. vs. Union of India and others [2013 (1) TMI 525 - ALLAHABAD HIGH COURT] - Bagasse is a waste product and no more duty will be imposed over it - Bagasse and 'press mud' are not final products of the manufacturer – Bagasse is classified under sub-heading 2303 20 00 of Central Excise Tariff Act.
In the notice, it has been mentioned that as per Rule 6 of the CENVAT Credit is availed on the inputs which are used in the manufacture of both dutiable and final products, then an amount equal to 10% (upto 6th July, 2009) or 5% (w.e.f. 7.7.2009) of the sale value of exempted final products is required to be paid - Therefore, neither the penalty nor the interest can be charged from the petitioners, in view of the fact that the petitioners are not liable to duty either by payment or by reversal in respect of bagasse sold by the petitioner - As the petitioners have paid the entire duty and interest under protest, the entire deposited amount shall returned to them – Decided in favour of Assessee.
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2013 (9) TMI 937 - ALLAHABAD HIGH COURT
MODVAT Claim on the portion of Furnace Oil/LDO used for generation of electricity supplied to other units - Interpretation of Rules - Held that:- It was well-settled that tax law should be interpreted in conformity with the normal commercial practice - Therefore, the manner of use should be accepted as to economical, efficient and convenient manner of use. A contrary interpretation would lead to frustrating the purpose of law in granting exemption/Modvat credit - Relying upon In SRF Ltd. versus Commissioner of Central Excise, Chennai [2005 (7) TMI 215 - CESTAT, CHENNAI] and Mahabir Jute Mills Ltd. versus Commissioner of C. Ex., Allahabad [2006 (2) TMI 591 - CESTAT, NEW DELHI ].
The learned counsel produced various orders passed by the different Tribunals and they all do support the impugned order of the Tribunal - The learned counsel for the appellant could not refer any statutory regulation or rule to take a different view of the matter - It was logical that if two units were being run at one place, producing two different items and the electricity was supplied to both of them by a common generator, the Modvat facility shall be available to both the manufacturing units, unless statutorily provided otherwise - It was neither expedient nor desirable unless provided otherwise statutorily to have separate electricity generating sets for different manufacturing units - The approach of the Tribunal was pragmatic and in the interest of efficiency and economy – there was no error in allowing Modvat Credit on Furnace Oil and other eligible inputs used in the generation of electricity – Decided against the revenue.
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2013 (9) TMI 936 - DELHI HIGH COURT
Validity of Circular dated 27th July, 1995 - process amount of manufacture or not - manufacturer of electro thermo appliances used for domestic purposes, had diluted imported insecticides under sub-heading 3808.10 of the Central Excise Tariff Act, 1985, to make them marketable. In this process, solvent, perfume and stabilising agents etc. were added. - revenue contended that the process is amounting to manufacture - Whether the circular was legal and valid as it specifically seeks to override and disputes ratio and declares decision of the Tribunal in the case of Markfed Agro Chemicals v. Collector of Central Excise. Chandigarh, [1993 (9) TMI 192 - CEGAT, NEW DELHI] as an incorrect and a wrong decision – Held that:- We need not examine this issue in great depth and deal as similar contention was raised and answered by a Single Judge of this Court in Kissan Chemicals v. Union of India [1996 (5) TMI 91 - HIGH COURT OF DELHI AT DELHI ] - The Board could not have issued the circular for rendering a decision of the Tribunal as irrelevant and nugatory - It was observed that issuance of the circular by the Board in the present facts was not an appropriate remedy - The remedy actually was to challenge and question the ratio in appropriate proceedings.
The petitioner had drawn attention to the judgment of the Supreme Court in Union of India v. Pesticides Manufacturing & Formulators Association of India [2002 (10) TMI 95 - SUPREME COURT OF INDIA] - wherein post-amendment of the tariff, the same issue was examined and it was held that amendments to Chapter 38 in 1996 and 1997 had not resulted in any difference in classification of bulk pesticides and insecticides etc. - The writ petition was allowed and the circular was quashed as well as the show cause notice issued to the petitioner - Decided inf favour of Assessee.
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2013 (9) TMI 935 - PUNJAB AND HARYANA HIGH COURT
Violation of principle of natural justice - Held that:- negligence or collusion by officers, enjoined with duty to collect taxes, detect evasion and/or to impose penalties etc., cannot be a ground to allow a delinquent to go scot-free. Where an order discloses violation of principles of natural justice, it is incumbent, while setting aside such an order, to remand the matter instead of allowing a defaulting party to go scot-free. The appellate authority as well as the Tribunal, while holding that principles of natural justice have been violated, should have remanded the matter to the Adjudicating Officer after serving all relevant documents upon the respondent to decide the matter afresh - order passed by the Adjudicating Officer is vitiated for violation of principles of natural justice, however, order passed by the Tribunal is modified by directing that the matter shall be taken up by the Adjudicating Officer from the stage of issuance of show cause and after furnishing all relevant documents to the respondent and granting adequate opportunity to present its defence - Decided partly in favour of Revenue.
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2013 (9) TMI 934 - BOMBAY HIGH COURT
Order of Pre-deposit – Credit Availed on Inputs - Whether the CESTAT was justified in directing the appellant to make pre-deposit on the prima facie opinion that the credit availed on inputs used in construction of supporting structure which is embedded to the earth is not available to the assessee – Held that:- Prior to the amendment of Explanation 2 to Rule 2(k) of the CENVAT Credit Rules, 2004 - this Court in the case of Commissioner of Central Excise v. Ispat Industries Limited [2010 (4) TMI 169 - BOMBAY HIGH COURT ] - credit of duty paid on angels, channel and plates, etc. which are used in the construction of supporting structure would be available - the amendment to Explanation (2) to Rule 2(k) of the Cenvat Credit Rules, 2004 by notification dated 7th July, 2009 is retrospective in nature, the issue is debatable - In any event, dispute in the present case relates to the period prior to 7th July, 2009 - it is a fit case to hear the matter on merits without insisting on any pre-deposit - the order of CESTAT was quashed and set aside and the CESTAT was directed to hear the appeal on merits without insisting on any pre-deposit.
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2013 (9) TMI 933 - ALLAHABAD HIGH COURT
Bar of Limitation – Clandestine Removal of Goods - Extended period - Valuation - A show cause notice beyond the period of limitation was issued on the ground of clandestine removal of goods – Held that:- Following Sheffield Appliances v. CCE, Kolkata [2003 (3) TMI 373 - CEGAT, NEW DELHI ] - The Tribunal has recorded the findings that the department (the Commissioner himself) was aware of the marketing pattern of the company as the earlier decision was rendered in the case of company belonging to the same group - The show cause notice in that case was also issued on the same ground namely that manufacturing company and marketing company were related persons and that sale price to the related marketing company could not have constituted correct assessable value.
On the ground of limitation to be sufficient and held that the demand beyond the normal period under Section 11A of the Central Excise Act is barred by limitation - The penalty on the appellant as well as its directors and officials was not found sustainable - The department is dealing with the same group of companies and thus the finding that it was aware of the marketing pattern is a finding of fact, which does not call for interference – there was no illegality in the findings recorded by the Tribunal, that in the circumstances the demand beyond the normal period under Section 11A, was barred by limitation – Decided against Petitioner.
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2013 (9) TMI 932 - ALLAHABAD HIGH COURT
MODVAT Credit - Whether MODVAT Credit can be availed by the assessee on the basis of certificate issued by superintendent preventive – Held that:- The Tribunal had not committed any error in allowing the credit, as it has recorded the findings that the glass shells were not going to any customer but were to be shifted to a location outside the factory - Non-generation of invoice was the only deficiency in the whole transaction, but this does not erase the duty-paid character of the glass shells, which were received from outside the factory - The re-entry of these glass shells in the factory for use in the manufacture of final product has to be held as entry of duty-paid inputs and the credit cannot be disallowed.
Levy of penalty - Whether the finding of facts for clandestine removal of goods recorded by adjudicating authority and the same has been upheld upto CEGAT can be overlooked in subsequent proceedings – Held that:- In the order awarding penalty, there is no such finding that the goods were brought from outside the factory, without payment of duty - It was only because of reversal of entry on duty-paid goods, the penalty was imposed. An affidavit has been filed enclosing certificate of Superintendent (Preventive), verifying that the glass shells were stored outside the factory due to shortage of space in the factory premises - The penalty order could not be a ground, for not allowing Modvat Credit on the finished goods - The grounds raised in the appeal do not raise any substantial questions of law to be considered in the appeal.
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2013 (9) TMI 931 - GUJARAT HIGH COURT
Condonation of Delay – Delay of 425 days - Held that:- The reasons for delay were spelt out in the application more particularly - the delay in filing restoration application occasioned unintentionally and failure to remove the office objection could be said to be inadvertent can be fully relied - The main Tax Appeal was, therefore, dismissed even before it could be considered for admission by the Court - there was no question of other side appearing in the matter - The other side was not given any notice and appeal was dismissed at the stage of removal of office objection – Decided in favour of Assessee - Delay condoned.
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2013 (9) TMI 930 - BOMBAY HIGH COURT
Time-barred Appeal – Condonation of delay - Held that:- Following Raj Chemicals v. Union of India [2012 (3) TMI 307 - BOMBAY HIGH COURT] - where the appeal filed against the order-in-original was dismissed as time-barred, the court in exercise of writ jurisdiction can neither direct the Appellate Authority to condone the delay nor interfere with the order passed by the Adjudicating Authority – there was no reason to entertain this writ petition.
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2013 (9) TMI 929 - BOMBAY HIGH COURT
Rebate Claim - Proof of export - Rule 18 - Whether the Joint Secretary to the Government of India by his order was justified in holding that the assessee was entitled to the rebate claim – Held that:- The certificate issued by the Additional Commissioner (Export) established the co-relation between the duty paid documents and the goods exported by the petitioner - Correctness of the above certificate was not disputed by the Revenue - no fault can be found with the decision of the Joint Secretary to the Government of India in allowing the rebate claim of the respondents – there was no merit in the appeal.
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2013 (9) TMI 912 - GUJARAT HIGH COURT
CENVAT Credit on GTA services - upto the place of removal - scope of the terms 'means and includes' - Rule 2(l) of CCR - Services of Outward Transportation of Goods – Rule 2(1) of CENVAT credit Rules - Whether CESTAT was right in holding that the credit of service tax in respect of service tax paid on services of outward transportation of goods beyond place of removal in the office is admissible by overlooking the statutory provisions of Rule 2 (1) of CENVAT Credit Rules, 2004 which does not cover these services in the definition of input service for the purpose of allowing Cenvat Credit thereon and ignoring various decisions as referred - Held that:- Following Commissioner of Central Excise & Customs vs. Parth Poly Wooven Private Limited [2011 (4) TMI 975 - GUJARAT HIGH COURT] - Main body of the definition of term ‘input service’ is wide and expansive and covers variety of services utilized by the manufacturer - By no stretch of imagination can it be stated that outward transportation service would not be a service used by the manufacturer for clearance of final products from the place of removal.
Outward transportation would be an input service as covered in the expression ‘means’ part of the definition, it would be difficult to exclude such service on the basis of any interpretation that may be offered of the later portion of the definition which is couched in the expression ‘includes’ - the expression ‘includes’ cannot be used to oust any activity from the main body of the definition if it is otherwise covered by the expression ‘means’ - the expression ‘includes’ followed by ‘means’ in any definition is generally understood to be expanding the definition of the term to make it exhaustive, but in no manner can the expression ‘includes’ be utilized to limit the scope of definition provided in the main body of the definition - This was also not the intention of the Legislature. - Decided against the revenue.
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2013 (9) TMI 911 - KARNATAKA HIGH COURT
Challenge against Pre-deposit - There was nothing wrong in the conditional order passed by the Tribunal - Therefore, the question of interference with the conditional order does not arise - However, as the appellant has filed the two appeals, it would be appropriate to set aside the order dismissing the appeal for non-compliance of the conditional order to make deposit as ordered by the Tribunal - On such deposit, the appeal shall be restored to its original file and the Tribunal shall hear the appeal on merits and in accordance with law – Decided against Assessee.
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