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Central Excise - Case Laws
Showing 81 to 100 of 188 Records
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2014 (10) TMI 480
Waiver of pre deposit - Extension of stay order - Held that:- Tribunal has noted that a waiver of pre-deposit and unconditional stay on the realisation of the adjudicated liability was granted by the Tribunal since a prima facie case was found in favour of the assessee. The Tribunal has also observed that the appeal has not been disposed of only on account of the pendency of several older appeals and not on account of any delay on the part of the assessee. ends of justice would be met if the Tribunal is requested to dispose of the appeal expeditiously and preferably within a period of six months from today. The waiver of pre-deposit will continue to remain valid for a period of six months from today. - Following decision of Commissioner, Customs And Central Excise Versus M/s JP. Transformers [2013 (10) TMI 1194 - ALLAHABAD HIGH COURT] - Decided against Revenue.
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2014 (10) TMI 479
CENVAT Credit - Not payment of duty and cess with stipulated time of 30days - Held that:- The petitioner admittedly does not dispute the fact that they have defaulted in payment beyond 30 days. In such circumstances, action initiated by the respondent cannot be faulted with. However, it is stated that the assessee has given the statement to the investigating officer on 07.03.2014, which is contrary to the contention now raised before this Court in this writ petition. Therefore, the respondent would justify the action that based on the assessee's demand alone, they have initiated action. As pointed out earlier, there is no discretion vested with the authority to allow the petitioner to avail Cenvat credit till they clear dues. Once they clear dues, admittedly, the benefit is accrued to the petitioner, if there is no other legal impediment for doing so - Decided against assessee.
At this juncture, learned Senior Counsel for the petitioner submitted that already ₹ 77 lakhs has been recovered from the petitioner and therefore, the petitioner may be given an opportunity to approach the respondent with the request to pay the remaining amount in installments or by granting reasonable time and in the meantime, no coercive steps should be initiated against the petitioner. - while dismissing the appeal, liberty granted to the petitioner to submit its representation to the 2nd respondent within a period of 10 days from the date of receipt of a copy of this order, requesting for time by duly indicating as to what date the balance amount will be paid.
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2014 (10) TMI 476
Reversal of CENVAT Credit - The short question for consideration is the factor "P" mentioned in sub-rule (3A) of Rule 6. Should it be the value of common input services credit as contended by the appellant or should it be the value of total Cenvat credit taken on input services. - Held that:- From a reading of the Rule 6(3A), three factors are required for determination of the Cenvat Credit attributable to exempted goods and exempted services. The first factor is "M" which denotes the total value of exempted services provided plus the total of exempted goods manufactured. The second factor is "N" which denotes the total value of taxable and exempted services provided plus the total value of dutiable and exempted goods manufactured and the third factor is "P" which denotes the total Cenvat Credit taken on input services during the financial year. It should be noted that "P" denotes the total Cenvat Credit taken on input services during the financial year and not the total of the Cenvat Credit taken on common input services. This is also evident from other two factors, namely, "M", "N" which provides for taking into account, the total of the value of services provided and the total value of goods manufactured. The same principle applies in the case of determination of provisional credit required to be reversed every month.
If the appellant had chosen not to avail Cenvat Credit on common input services, the liability would have been only ₹ 2.07 crore and inasmuch as the appellant has already reversed an amount of ₹ 62 lakhs (approximately), we direct the appellant to make a pre deposit of ₹ 1.40 crore within a period of eight weeks and report compliance by 18/09/2014. On such compliance, pre deposit of the balance of dues adjudged against the appellant shall stand waived and recovery thereof stayed during the pendency of the appeal - Partial stay granted.
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2014 (10) TMI 448
Non fulfillment of export obligation - transfer of LOP - STPI unit - Jurisdiction of Commissioner of Central Excise to issue show cause notice - The petitioner attempts to project the show cause notice as one that has been issued without jurisdiction, by contending that once the transfer of the letter of permission is permitted by the Software Technology Parks of India, the Commissioner of Central Excise would not have jurisdiction to proceed against the petitioner. - Held that:- A careful look at the above circular would show that the circular deals with an entirely different contingency. Whenever a unit fails to achieve the target fixed (non fulfillment of export obligation), after a block of five years, the Development Commissioner would take a final decision within a period of six months after the expiry of five years. Based upon the said final decision, the Customs/Central Excise Authorities have to take action for recovery of duty. circular has no application to cases of this nature. In this case, we are not concerned with the shortfall in the achievement of target. We are concerned with serious allegations made in the show cause notice. Therefore, what applies to a genuine exporter under the circular bearing No.12/2008, cannot be used as a shield by the petitioner. Hence, the first writ petition challenging the show case notice is liable to be dismissed.
There is one more reason as to why the first writ petition deserves to be dismissed. The show cause notice impugned therein is dated 18.4.2011. The petitioner kept on dillydallying for a period of more than a year seeking time to submit objections. It is only in August 2012, after a gap of about 16 months of dillydallying, that the petitioner came up with the first writ petition. Therefore, there are no bona fides in the challenge made by the petitioner to the show cause notice.
The first respondent issued the impugned show cause notice to the petitioner as well as the transferees. In the event of the first respondent fixing the responsibility jointly and severally upon all of them, the petitioner can always proceed against the transferees in accordance with the terms and conditions of the contract that they have with the transferees. Since the exemption was granted only to the petitioner on condition that the petitioner fulfills an export obligation, the petitioner cannot turn around and say that the transferees are the beneficiaries of the exemption and that the responsibility to fulfill export obligation should be fixed only upon the transferees. - Decided against assessee.
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2014 (10) TMI 447
Waiver of pre deposit - Interest under section 11AB - Penalty under Rule 173Q(1) - Whether, under the facts and circumstances of the case, the CESTAT was justified in directing to deposit interest liability for the period 14-5-2003 (when Section 11DD came into force) till the day demand of differential amount was paid - Held that:- provisional assessment was made on account of the disputed classification of the product. The relevant date in cases where duty of excise is provisionally assessed is the date of adjustment of duty after the final assessment. As a result Section 11A comes into reckoning only after the final assessment has taken place. If the Central Excise Officer concludes that duty has been short levied, the officer is empowered to take proceedings under section 11A within limitation after issuing show cause notice. Final assessment is a condition precedent for invocation of section 11A.
Clearance was made on the basis of provisional assessment. This being undisputed position, there is no justification in directing pre-deposit of the interest amount from the day Section 11DD came into effect till payment of differential duty especially in view of the fact that section 35-F of the Central Excise Act does not provide for pre-deposit of the interest demand prior to 11th May, 2007. The impugned order dated 7th October, 2013 is, therefore, uncalled for. Perusal of the impugned order reveals that the tribunal has proceeded on the basis that the order in original relates to assessment during the relevant period. proceeds to record that the appellant did collect duty liability at enhanced rate applicable to tariff item 14F even though they were discharging the duty liability only at the lower rate applicable to Tariff Item 68.
That the appellant wanted to enjoy the benefit of duty collected at the higher rate from the customers without remitting the same to the exchequer and therefore the Appellant was liable to discharge interest liability on the duty amount, the tribunal therefore arrived at the prima facie conclusion that the Appellant has not made out a case for the complete waiver of dues adjudged against them and directed the Appellant to remit the interest liability from 14th May, 2003 till the date of which duty liability was discharged. - Partial stay grated.
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2014 (10) TMI 446
Refund of Terminal Excise duty – Non speaking order - Petitioner, a 100% EOU receiving goods from units in DTA – duty paid by DTA not claimed as CENVAT credit but the petitioner seeking refund of the TED paid by the DTA – claim rejected by DGFT authorities by a letter citing Circular No.16(RE-2012/2009-14) dated 15.3.2013 issued by the Director of Foreign Trade clarifying that no refund of TED should be provided by RAs of DGFT / Office of Development Commissioners, because such supplies are ab initio exempted from payment of excise duty – Held that:- Communication of the nature relied upon cannot be termed as an order dealing with and disposing of a refund application - Minimal request of the petitioner for a personal hearing and a speaking order dealing with all the contentions and objections could have been fulfilled had the respondents complied with the same - once the petitioner is given an opportunity of personal hearing and raising all contentions, then, a speaking order assigning reasons can be passed by the respondents dealing with them - It could not be that a cryptic communication satisfies the requirement of a proper and speaking order being passed - fresh order to be passed expeditiously as possible within a period of 8 weeks - Petition disposed of.
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2014 (10) TMI 445
Challenge to levy of interest - finalization of provisionsal assessment - differential duty - period from June 1996 to February 2000 - Notification No.68/63-CE dated 4th May, 1963 - Liability for interest - Petitioners contend that circular of 21st June, 2001 clarifies that the interest is chargeable under Rule 7 only when the provisional assessment is finalised after 1st July, 2001. In the present case, the Petitioners contend that for the period April 1998 to June 2001 being prior to 1st July, 2001, no interest is payable. - Held that:- Petitioner has retained money owing to the Respondents without authority of law and engaged the Respondents in a series of litigations. They then filed Civil Appeals before the Supreme Court which were disposed of on 16th October, 2012 with liberty to file Review Petition. The Review Petition was filed on 19th October, 2012. The review petition came to be dismissed on 27th November, 2012. The Petitioners did not stop there. They then filed a curative petition on or about 2nd January, 2013 which came to be dismissed on 20th February, 2013. Thus, at every opportunity the Petitioners sought to defeat the Revenue's right to amount of duty and there is no reason for the Petitioners to be excused from paying interest. - it is matter of record that the demand for interest in the present case does not emanate purely from the statute but from negotiated demand for instalments pursuant to the final order of the Hon’ble Supreme Court fixing liability to pay the principal amount. Had the Petitioners paid the entire sum as on the date of the order of the Supreme Court they may have been in position to contend in the facts of the present case that no interest is liable to be paid. However, we clarify that this observation is made specifically in the facts and circumstances of the present case and not to be considered as precedent of any kind.
Liability to pay interest being reiterated in the acceptance of the proposal for instalments and the Petitioners having acted upon the same, the Petitioners are bound to pay interest at the rate of 18% per annum from the date of the order of the Supreme Court dated 29th August, 2012 till the date of realisation as demanded pursuant to Notification No.5/2011 Central Excise (NT) dated 1st March, 2011 read with CBEC circular No.208/42/96-CX dated 2nd May, 1996. While computing the interest the Respondents shall consider whether or not the payments were made towards principal sum and following the rules of appropriation of payments in this behalf by crediting the instalments to principal amounts and charging interest on the balance amount after each instalments was paid and appropriated and arriving at interest amount of the liability - Decided against assessee.
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2014 (10) TMI 444
Denial of CENVAT Credit - Job work - credit availed by the Job worker on capital goods - contravention of Cenvat Credit Rules, 2001 - held that:- Cenvat credit cannot be denied on capital goods used in the manufacture of exempt intermediate products exempt from payment of duty, which are used captively in the manufacture of finished goods chargeable to duty. Cenvat credit is permissible to a job worker or even to a manufacturer at intermediate stage in respect of inputs like lubricants, soaps, chemical etc. where on final products, duty is admittedly paid. The Court held that the object of Cenvat credit is to avoid cascading effect of duty.
SEIITL only manufactured the chassis, which is only a part of a TV. It is not a finished product and is only an intermediary product. We also find that SEIITL supplied intermediary product to SEIL, which manufactured the TV and paid duty on it. Consequently, it was entitled to avail Cenvat Credit in order to prevent the cascading effect, if duty was levied. We are of the opinion that SEIITL, which was the job worker was entitled to duty paid on inputs and used in the manufacture of intermediary product. Consequently, for the reasons stated aforesaid, the appeal fails and is dismissed. - Decided against Revenue.
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2014 (10) TMI 443
Valuation of goods - Inclusion of assessable value of the Air Brake equipment manufactured and cleared by assessee for Railways - Held that:- Appellant manufactured certain Air Brake Equipments and cleared the same from their factory to Integrated Coach Factory, Chennai of the Railways. Pipes and pipe fittings of the Air Brake systems were bought from the outside and supplied separately to the ICF, Chennai and thereafter the goods manufactured and cleared by the appellant along with bought out pipes and pipe fittings were installed in the Railways Coaches as Air Brake Systems. In our view since what had been manufactured and cleared by the appellant was Air Brake Equipment and this is not a case of where bought out items had been brought to the factory for use in the manufacture of the final products, the value of bought out items would not be includible in the assessable value. Similarly the installation of the Air Brake equipment has nothing to do with the manufacture of the equipments and hence the charges for the same are not includible in the assessable value of the Air Brake equipment - Decided in favour of assessee.
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2014 (10) TMI 442
CENVAT Credit - finished goods become exempted subsequent to availing credit - Held that:- obligation on the part of the assessee to reverse the credit is only in that case where he opts for exemption from the duty based upon a Notification relatable to value or quantum of the clearances. Inasmuch in the present case, the appellants’ final product became unconditionally exempt and the exemption was not dependent upon the value or quantum of clearance in a financial year, it has to be held that the said Rule 9(2) is not applicable. In fact, I find that the provisions were subsequently changed in the new CENVAT Credit Rules, 2002, with the introduction of Rule 11(3), with effect from 1-3-2007. In terms of the said Rule 11(3)(ii), where the final product become exempted absolutely under Section 5A of the Act, the quantum of CENVAT credit lying in his balance credit shall lapse and shall not be available for utilisation for payment of duty on any other product whether cleared for home consumption or for export - The said mandate of law was effective with effect from 1-3-2007, i.e., after the period involved in the present appeals. - Decided in favour of assessee.
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2014 (10) TMI 441
Classification of micronutrient fertilizers - Classification under CETH 31 or under CETH 3808 - Held that:- The Junior Scientist had stated that micronutrients such as Iron, Copper, etc. are known as trace elements and are essential for plant growth in small amounts only. If these elements are made available in minor quantities, they regulate the formation of hormones etc. in the plants which in turn alter life process of the plant so as to accellerate growth, enhance yield and improve quality. Thus they internally contribute to regulate the plant growth. We cannot say that this supports the case of the Department. Moreover, in the pouches in which the products are sold, it is stated “All these micronutrients play a very significant role in physiological growth and biochemical process of crop/plants”. This label also does not support the case of the Revenue since it does not say that the products are plant growth regulators. In fact it supports the case of the appellant that is a mixture of micronutrients. Learned AR also relied upon the decision of this Tribunal in the case of Karnataka Agro Chemicals v. CCE, Bangalore [2012 (11) TMI 865 - CESTAT, BANGALORE]. However, in that case the product contained Urea, Calcium Nitrate, Potassium Nitrate, Zinc Sulphate, Magnesium Sulphate, Manganese Sulphate, Ferrous Sulphate, Copper Sulphate, Borax, Boric acid and others. The products are not comparable.
The sum and substance of the above observations is that the issue involved is classification of the product which requires a detailed study - appellant has been able to make out a case that the products cannot be called as plant growth regulators. Under these circumstances, the requirement of pre-deposit against the appellant-company of the entire dues is waived and stay against recovery is granted - Stay granted.
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2014 (10) TMI 410
Waiver of pre deposit - Transfer of cases - it was submitted that, if this Court desires a uniform decision to be rendered by the Tribunal, then all cases pending at Hyderabad, Bangalore and adjacent areas be transferred to CESTAT, Bangalore. - Held that:- list of cases that has been given by Mr. Radhakrishnan which are pending at Bangalore be adjudicated along with other cases pending at CESTAT Hyderabad and other places, we think that all the cases should be heard by a Full Bench, presided over by the President CESTAT so that in the ultimate eventuate, uniform order is passed. Assessee directed to make pre deposit - On such deposition being made, the appeals which have been dismissed shall be revived and be transferred to the CESTAT at Bangalore for appropriate adjudication in accordance with law.
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2014 (10) TMI 409
100% EOU - Disallowance of the credit of Education Cess and Secondary & Higher Secondary Cess as per the formula prescribed in Rule 3(7)of CENVAT Credit Rules, 2004 - Power of the commissioner of central excise (Appeals) to remand the matter – appellants submits Commissioner does not have power to remand after amendment to Section 35A(3) of Central Excise Act, 1944 and therefore seeks remand the matter to Commissioner to hear the matter afresh and decide the issue in respect of remand - held that:- issue already stands settled as per this Bench decision in the case of Bacha Motors (P) Ltd Vs. CST Ahmedabad [2010 (1) TMI 472 - KARNATAKA HIGH COURT]. On merits of restriction of CENVAT Credit as per Rule 3(7)(a) of CENVAT Credit Rules, 2004, it is observed from the opening sentence of Rule 3(7)(a) that the provision will be applicable to the inputs or capital goods produced or manufactured by a 100% EOU. In the instant case, as borne out from the facts argued the disputed goods were not produced or manufactured by the appellant's 100% EOU. Otherwise also, CENVAT Credit of cesses have been held to be admissible as per the case laws relied upon by the appellant - Decided against Revenue.
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2014 (10) TMI 408
Remission of duty - Goods destroyed in fire - Held that:- Whatever objections were raised by the Commissioner for denial of remission, stands duly met by the appellant. There is no dispute about the fact of fire as also about the fact of destruction of the goods. In fact the appellant has been prompt to call fire brigade immediately, inspite of taking first measured in trying to extinguish fire by way of fire extinguisher and pouring water etc. Further intimation about fire accident and loss of goods stands made by the appellant on the very next day itself. The extent of damage of goods also stands verified by Superintendent. In the wake of above admitted factual position, denial of remission of duty on mere technical ground i.e. being some difference in the occurrence of fire timing and in calling fire brigade are of no relevance. Further, I find that the appellant’s claim from insurance company stands settled in their favour, by National Consumer Forum. appellants are entitled to remission of duty subject to the condition that the duty element has not been claimed from the insurance company - Decided conditionally in favour of assessee.
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2014 (10) TMI 407
SSI exemption - brand name of others - market leader’s name is symbolically impressed on the cover and wrapper of the drug - Held that:- The product of the appellant appears to have no marketability with association of the name of market leader being printed on the wrapper and cover (container) of the medicine cleared by the appellant. Therefore, brand name of the market leader brings out distinction to deny SSI exemption to the appellant. - On perusal of the wrapper of capsule, it is noticed that first three letters of drug resembles with the first three letters of market leader appealing to commons sense that the drug has inherent intimacy with the marketer demonstrating object thereof between the two. The container of the product exhibited to us carries symbol and name of market leader M/s. Infra Drugs and Chemicals which is a Division of a marketer of M/s. Oyster Lab Ltd. - Following decision of Nivaram Pharma Pvt. Ltd. [2004 (10) TMI 18 - HIGH COURT OF JUDICATURE (MADRAS)] - Decided against assessee.
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2014 (10) TMI 406
Denial of refund claim - Commissioner (Appeals) has rejected the refund claim by upholding the order of adjudicating authority on the ground that said deposit cannot be held to be pre-deposit inasmuch as the same was adjusted against sanctioned refund claim - Held that:- When it is the department itself, who adjusted the sanctioned refund claim against the penalty amount, due to be paid by the assessee, it has to be treated as pre-deposit, which are subject to outcome of final order of the appellate authority. Revenue cannot take the benefit of its own actions i.e. first adjusting the outstanding dues against the sanctioned claims and then to say that same were not pre-deposits - As regards the reliance on provisions of Section 11B(ec), it is seen that same was introduced with effect from 11-5-2007, as such, would not be applicable to the refunds arising out of the order dated 17-2-2006. In any case, I find that the same does not apply to the refund of penalty as held by the Tribunal in the case of CCE, Mumbai v. Fibre Foils Ltd. [2000 (7) TMI 437 - CEGAT, MUMBAI] laying down that in any case the limitation provided in terms of Section 11B applies to refund of duty and not refund of penalty - Decided in favour of assessee.
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2014 (10) TMI 378
Denial of refund claim - short supply of goods - As the appellant failed to supply the specified quantity during a specified period, therefore, the payments were deducted by M/s. U.P. Power Corporation - appellant has not received full payment against the invoice raised for the clearance of the transformers - Held that:- Clause of deduction of price was known prior to clearance of the goods. As appellant could not fulfill the terms of the agreement, therefore the buyer was entitled to deduct the amount from the invoice price. In these circumstances, whatever amount they have received less from the buyer, they are entitled to take refund of the duty component involved in the deducted amount. In these circumstances, relying on the decision of CCE vs. Victory Electricals Ltd. [2013 (12) TMI 81 - CESTAT CHENNAI], I hold that appellant are entitled for refund claim - Decided in favour of assessee.
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2014 (10) TMI 377
Levy of duty on quality control samples - preserved samples - samples consumed during testing of the medicines by the assessee - Held that:- Bombay High Court in CCE, Belapur Vs. RPG Life Sciences Ltd., - [2010 (12) TMI 52 - BOMBAY HIGH COURT] held that excise duty is not demandable when goods are not cleared from the factory premises but consumed during testing. Similarly in the case of CCE, Chandigarh Vs. Dabur India Ltd. – [2005 (2) TMI 166 - CESTAT, NEW DELHI], a Larger Bench of this Tribunal held that control samples retained in factory is not liable to duty if proper account is maintained. The said decision was also upheld by the Hon'ble High Court of Himachal Pradesh at Shimla in the case of Dabur India Ltd. – [2010 (5) TMI 590 - HIMACHAL PRADESH HIGH COURT] wherein it was held that the samples of product, preserved/retained for period of investigation of complaints cannot be said to be consumed or utilized as such or for manufacture of other commodity and they cannot be deemed to have been removed from the place of manufacture and hence, they are not liable to excise duty - Decided against Revenue.
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2014 (10) TMI 376
Classification of goods - Whether goods manufactured by appellant such as Pre-printed computer stationery, PIN Mailer stationery, Airway Bill stationery, ATM Roll stationery etc. fall under Note 14 to Chapter 48 introduced in the Finance Bill, 2012, or Chapter 49 of the CETA, 1985 as product of printing industry - Held that:- PIN Mailer consist the details of the Bank and the terms and condition for use of such PIN Mailer in internet / mobile banking. On these PIN Mailers, the password / PIN number is printed apart from the name of the account holder. Therefore, the product clearly falls within the scope of Note 14 to Chapter 48. Therefore, for the period w.e.f. 29.5.2012 to November, 2012, prima facie, the products manufactured by the appellant would merit classification under Chapter 48 and liable to duty accordingly. An identical matter had come up before this Bench in the case of Alpha Carbonless Paper Manufacturing Co. Pvt. Ltd. reported in [2014 (2) TMI 589 - CESTAT MUMBAI] and this Tribunal held that after amendment to 48 by Chapter Note 14, the ATM Rolls would merit classification under Chapter 48 and prior to amendment the product was classifiable under Chapter Heading 49. In the present case, the period involved is partly after the amendment, for the period 29.5.2012 to November, 2012. Therefore, the appellant has not made out a prima facie case for complete waiver of pre-deposit. No financial hardship is pleaded - Partial stay granted.
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2014 (10) TMI 375
Waiver of pre deposit - Cenvat credit - Receipt of rejected goods - prescribed records - Held that:- according to Rule 16 any rejected goods on which duty has been paid can be brought back to the premises of a manufacturer for any reason and by following the procedure prescribed therein. What is required to be shown is that the goods have been accounted for. Now there are no prescribed statutory records in Central Excise law except for daily stock account the proforma of which is prescribed and is statutorily required to be maintained. Therefore an assessee is free to maintain records which according to him are required and sufficient for the purpose for which he maintains the records. In this case it is not the case of the department that the records maintained are not sufficient but it is their case that the procedure prescribed in the trade notice has not been followed. Under these circumstances I consider that appellant has made out a prima facie case for waiver and accordingly there shall be waiver of pre-deposit of the entire amount of dues and stay against recovery of the same during the pendency of appeal - Stay granted.
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