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Central Excise - Case Laws
Showing 1 to 20 of 302 Records
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2014 (1) TMI 1923
Waste/scrap - breakage of bottles, in the normal course of trade or not - HELD THAT:- Learned Counsel explains that breakage of bottles in the course of normal trade is within the breakage limit prescribed by the Board - Such aspect was considered by the Tribunal and resolved the dispute in favour of assessee. That was confirmed by the Hon’ble High Court of Calcutta in the case of PEPSICO INDIA HOLDINGS PVT. LTD. VERSUS COMMR. OF C. EX., KOLKATA-III [2008 (9) TMI 827 - CESTAT, KOLKATA].
There are nothing contrary on record to appreciate that the breakage claim was unreasonable - appeal allowed.
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2014 (1) TMI 1901
CENVAT Credit - pet coke sold to customer - denial on the ground that credit could not have been taken without receiving the inputs in the factory - interest - penalty - HELD THAT:- In this case, admittedly the inputs were not received in the factory but credit was taken. Therefore, credit was not admissible and should be reversed. However when invoices were raised subsequently, the appellants have reversed the credit and therefore seeking reversal again would mean payment of duty twice on the same goods. The law does not require reversal of the Cenvat credit taken twice by an assessee even if there was a procedural omission on their part. That being the position, the appellant has made out a prima facie case for waiver of the Cenvat Credit amount demanded from them
Liability of Interest - HELD THAT:- Since the reversal of the credit made at the time of clearance which is in reality not a clearance actually amounts to reversal of credit, interest liability automatically arose and has to be discharged.
Penalty - HELD THAT:- The law also does not permit raising of invoice on inputs which have not been received in the factory at all. Appellants have done so. Thus the appellants have neither done justice to their own system which they have adopted for accounting nor have they followed the law which is required to be followed in such cases. That being the position, in my opinion, penalty is required to be imposed even though penalty under Section 11AC could not be imposed.
The waiver of pre-deposit of Cenvat credit demanded and penalty imposed is granted and stay against recovery is ordered during the pendency of appeal.
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2014 (1) TMI 1871
Whether the investment made by the assessee are in terms of the notifications 32/99-CE, 33/99-CE, 8/2004 and 28/2004 r/w Section 72 of the Finance Act, 2011?- HELD THAT:- There is no reason to interfere with the impugned order - The Investment Appraisal Committee shall conclude its work within three months from today and shall give its findings. If the findings of the Investment Appraisal Committee are against the concerned units, which have been given the incentive, the amount of incentive so given shall be recovered within six months thereafter in accordance with law - SLP disposed off.
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2014 (1) TMI 1865
Commercial coaching or training centre – u/s 65(27) – Notification No.33/2011-ST - Whether Flying Training Institutes providing training for obtaining Commercial Pilot License (CPL) and Aircraft Engineering Institutes for obtaining Basic Aircraft Maintenance Engineering License (BAMEL) come in the category of coaching centers as laid down in Section 65(27) of the Finance Act, 1994 and therefore assessable to service tax or not?
HELD THAT:- No substantial question of law is emerging from the impugned order.
The appeal is dismissed at the admission stage.
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2014 (1) TMI 1859
Restoration of appeal - appeal was dismissed for want of prosecution - grievance of the appellant before the Tribunal was that the appeal reached hearing after a lapse of eight years. Unit premises, from February 16, 2002, were closed. In these circumstances, they prayed that the appeal be restored to file - Held that:- The restoration application has also been dismissed and we find that from both orders, no substantial question of law arises within the meaning of section 35G of the Central Excise Act, 1944. When the appellant engaged an advocate and even the advocate did not bother to follow up the matter for eight long years and when it reached hearing, none was present, we do not see how the Tribunal can be faulted for dismissing the appeal for non-prosecution - appeal cannot be restored - appeal dismissed.
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2014 (1) TMI 1832
Applicability of Rule 6(3) of CENVAT Credit Rules - Sulphuric Acid has been cleared by the appellant to the fertilizer manufacturers which is exempt - only ground in appeal is that exempted goods include goods attracting ‘nil’ rate of duty and the Notification No.4/2006 specifies ‘nil’ rate in respect of Sulphuric Acid cleared to fertilizer manufacturers.
Held that: - the issue is squarely covered by the decision of the Tribunal in the case of Dharamsi Morarji Chemical Co. Ltd. Vs. CCE, Raigad [2010 (3) TMI 561 - CESTAT MUMBAI] wherein it was held that in respect of Sulphuric Acid cleared to fertilizer manufacturer under the same Notification and under the same conditions, assessee need not have to maintain separate accounts and has not to pay amount specified under Rule 6(3) of CENVAT Credit Rules - appeal dismissed - decided against Revenue.
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2014 (1) TMI 1831
Refund claim - Held that: - Revenue has no case, in this case also the same view has to be taken since this is a consequence of the earlier decision of the Commissioner(Appeals) - appeal dismissed - decided against Revenue.
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2014 (1) TMI 1814
Application for framing additional substantial questions of law - What is the effect of omission of Rules 96ZO and 96 ZP with effect from 01.03.2001 alongwith omission of Section 3A of the Act by the Finance Act,2001 w.e.f. 11.05.2001 on the pending proceedings out of which this appeal arises? - In the absence of any saving clause provided in the Finance Act, 2001 while omitting Section 3A of the Act and Rules 96ZO and 96ZP, whether it will have any effect on the pending proceedings and if so, in what manner? - misc. application is allowed and additional substantial questions of law are framed.
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2014 (1) TMI 1810
100% EOU - Refund claim - whether the respondent is eligible for refund of accumulated CENVAT credit arising because of deemed exports made to 100% EOUs within India? - Held that: - the issue is squarely covered by the decision of the Hon’ble High Court of Gujarat in the case of CCE Vs Shilpa Copper Wire Industries [2010 (2) TMI 711 - GUJARAT HIGH COURT], where it was held that the deemed exports have to be treated at par with physical exports for granting refunds of accumulated credit under N/N. 5/2006 - appeal dismissed - decided against Revenue.
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2014 (1) TMI 1804
CENVAT credit - scope of SCN - Held that: - Since the SCN did not consider or did not state that the services were received by an unit providing exempted service or manufacturing exempted goods; or the credit was in excess of the service tax amount paid, the credit could not have been denied on any other ground - appeal allowed - decided in favor of appellant.
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2014 (1) TMI 1796
CENVAT credit - welding electrodes used for fabrication and repair and maintenance of the machinery, various iron and steel items like shapes and MS flats, HR flats, SS flats and asbestos sheets - Held that: - welding electrodes used for repair and maintenance are admissible Cenvatable goods - reliance placed in the case of M/s. Nangganj Sihori Sugar Co. Ltd. Versus Commissioner of Central Excise, Lucknow [2011 (7) TMI 623 - CESTAT, DELHI], where it was held that Cenvat credit can be availed on welding electrodes which are used for maintenance of plant and machinery.
As regards asbestos jointing sheets, the Tribunal in the case of Birla Corporation Ltd. [2011 (7) TMI 993 - CESTAT, NEW DELHI] has held that said sheets to be admissible cenvatable inputs.
The matter needs to be remanded for verification of the use of various iron and steel articles - appeal allowed by way of remand.
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2014 (1) TMI 1792
Refund claim - CENVAT credit - benefit of N/N. 6/2002-CE dt. 1.3.2002 - contention of the appellant is that as the credit has been rightly availed and rightly utilized on payment of duty. Therefore, the reversal of credit availed on inputs is not to be reversed at the time of availing exemption notification, therefore filed refund claim - appeal was rejected on the ground that the appellants required to reverse the credit of duty paid on inputs contained in the finished products lying in stock on the date appellant opted for exemption notification - Held that: - The Honble Punjab and Haryana High Court in the case of CCE Vs. HMT (TD) Ltd. [2010 (4) TMI 1036 - PUNJAB AND HARYANA HIGH COURT] held in favor of the manufacturer - the matter requires reconsideration by the adjudicating authority afresh - appeal allowed by way of remand.
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2014 (1) TMI 1785
Levy of duty - Some of the corrugated boxes which were damaged during the process of packing of the final products were cleared as scrap without payment of duty during the period from April, 2004 to February, 2005 - whether duty can be demanded on these damaged boxes - Held that: - In any case the duty on inputs damaged during the process of manufacture cannot be demanded since it is nobody’s case that the same are products manufactured by the appellant - appeal allowed - decided in favor of appellant.
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2014 (1) TMI 1783
CENVAT credit - crates and glass bottles - forged invoices - Held that: - As the said goods were required by the present respondents, their sister concern sent the same to the present respondents along with the invoice after re-writing their name. There is no dispute that the inputs were received by the respondents and used in the manufacture of the final product - credit allowed - appeal rejected - decided against Revenue.
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2014 (1) TMI 1778
Clearance made by one 100% EOU to another 100% EOU - whether the respondent is eligible for refund of accumulated CENVAT credit arising because of deemed exports made to 100% EOUs within India? - Held that: - the issue is squarely covered by the decision of the Hon’ble High Court of Gujarat in the case of CCE Vs Shilpa Copper Wire Industries [2010 (2) TMI 711 - GUJARAT HIGH COURT], where it was held that the deemed exports have to be treated at par with physical exports for granting refunds of accumulated credit under N/N. 5/2006 - appeal rejected - decided in favor of respondent.
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2014 (1) TMI 1743
Waiver of pre-deposit - Demand of duty - formation of different units and operating with the common object or contributory factors - Held that:- taking into consideration the financial difficulties, we do appreciate that the appellant may be deprived of process of hearing if undue hardship is cause to them. But no merit found in the plea of financial hardship because the interest of Revenue on the other-hand shall suffer if there is no direction for pre-deposit. Not only we appreciate that there shall be no hardship to the appellants by our interim order but also no undue hardship is expected to be caused to appellant. Public interest demands direction for pre-deposit is essential to safeguard interest of justice without causing irreparable injury to either side. Therefore, the appellant is directed to deposit ₹ 50,00,000/- (Rupees fifty lakhs) in 10 equal monthly instalments of 5 Lakhs each to be payable by 25th of each month and first instalment shall commence from February, 2014.
So far as stay application of Shri Ashok Kumar is concerned, we direct that the said appellant shall deposit ₹ 5,00,000/- in 3 instalments of ₹ 2,00,000/- each by 25th February and 25th March. The cost instalment of ₹ 1,00,000/- is to be deposited 25th April.
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2014 (1) TMI 1731
Application for stay as well as waiver of pre-deposit - ITAT directing the petitioner to deposit 25% of the duty demanded within 8 weeks from that date - Held that:- On perusal of the provisions contained under Rule 21 of the Central Excise Rules, 2002, this Court finds that the consideration for the said application is different and, therefore, the said order cannot be linked to the order passed on confirmation of the demand. Furthermore the consideration for application seeking waiver of the pre-condition deposit is well recognized, as in such case the authorities must record their satisfaction relating to the undue hardship and while doing so shall also take into account the interest of the revenues.
The aforesaid satisfaction should be arrived independently and on the basis of the materials available with the record or produced before the Tribunal, if permissible under the procedural law. The Tribunal’s finding is solely based on rejection of an application for remission of duty and this Court does not find that there has been any recording to the satisfaction relating to the undue hardship as well as the interest of revenue.
This Court, therefore, finds that the Tribunal has proceeded to decide the matter extraneously without recording any satisfaction relating to the existence of a prima facie case, irreparable loss and injury, balance of convenience and inconvenience and undue hardship, which are some of the illustrative ingredients for consideration of the said application.The order impugned is, therefore, quashed and set aside and the matter is remitted back to the Tribunal for its re-consideration.
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2014 (1) TMI 1722
Waiver of predeposit of duty along with interest and penalty - Held that:- Commissioner (Appeals) has given a detailed finding and it appears that personal hearing was granted and nobody appeared on behalf the applicant. The issue of cross examination could be examined only at the time of appeal hearing. In view of that, the applicant is directed to make predeposit of an amount of ₹ 1,00,000/- (Rupees One lakh) within eight weeks. Upon such deposit, predeposit of balance amount of duty alongwith interest and penalty is waived and its recovery thereof stayed till the disposal of the appeal. The compliance is to be reported on 14.03.2014.
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2014 (1) TMI 1712
Remission of duty payable on finished goods and Cenvat credit availed on inputs - Held that:- It is not only the department which has found negligence on the part of the appellants but also the fire department which is nodal department to consider the circumstances under which such accidents take place and come to a conclusion. Therefore the order of Deputy Chief Inspector of Factories dated 19-5-2006 is important. Further on going through the records it is also found that the police went ahead with prosecution of three persons which finally ended in the acquittal of the persons since the witnesses produced by the prosecution did not support their case and there was no other evidence. This shows that police also felt that accident was avoidable. The fact that police prosecuted three persons would show that police treated the fire as not at all an accident which is much more serious than the accident being avoidable or happened because of negligence. The circumstances are peculiar in this case wherein police and fire department both have entertained the same views as the Commissioner. In fact their views are more disadvantageous than the view of the Commissioner. Hence, find that the rejection of the application for remission cannot be found fault with. Under these circumstances the appeal has no merits and is rejected.
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2014 (1) TMI 1711
Benefit of Notification No. 67/95 denied - Denial of remission of duty - extended period of limitation - Held that:- As in the show cause notice there is no indication of denial of remission but simply a demand for duty. It is not indicated as to how the goods have to be treated as removed from the factory. Secondly in the present Central Excise Rules when duty paid goods are received back into the factory and the process amounts to manufacture, Cenvat credit can be availed and such credit can be utilized for payment of duty on the goods which are manufactured after reprocessing. In the case of piston, once they are melted, in the normal process pistons would be manufactured again and such manufactured piston would be cleared.
Therefore in terms of Rule 16 also even if the pistons were taken back for processing after removal the appellants would be perfectly well within his rights to take back the credit of duty paid by the assessee at the time of removal and utilise the same for payment of duty on the finished goods. Therefore there is considerable force in the argument advanced by the learned counsel that the benefit of Notification No. 67/95 would be available in this case. Thus the situation here is comparable to the provisions of Rule 16 and since the goods have not been removed on payment of duty, benefit of Notification No. 67/95 would be applicable. Under these circumstances, the extended period for demanding duty should not have been invoked at all in view of the fact that there can be two views on the statutory provisions themselves as discussed above. When there is a question of interpretation, extended period would not have been invoked. On merits also, find no case for demanding the duty, interest and imposition of penalty - Decided in favour of assessee
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