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Central Excise - Case Laws
Showing 21 to 40 of 268 Records
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2014 (2) TMI 1185
Denial of CENVAT Credit - Bogus invoices - Availment of credit without actual receipt of goods - Held that:- Appellant has reflected three different figures, 80990 MTs in form 3CD which is a statutory return under the income-tax law, being the total quantity of Cenvatable inputs and non-cenvatable inputs received, 92,427 MTs in the RG-23A Part I register for the quantity of cenvatable inputs received and 78,408 MTs in the daily stock statement, which is a statutory register prescribed for receipt of raw materials. In view of the variations in the receipts, the appellant was directed, during the course of hearing on 25-9-2013, to produce copy of the balance sheet and schedules showing the details of inventory held for the year 1995-96, so as to resolve the difference among the three figures reflected in the three different accounts maintained by the appellant. The appellant has produced a copy of balance sheet and the schedule. However, the said document does not reflect the opening balance, receipt and the closing balance of the raw material, but merely indicates the quantity of raw material consumed during the year. Thus, this document is of no use in ascertaining the receipt of raw materials, during 1995-96.
As per the daily stock statement register, the quantity of receipt of raw materials during the year 1995-96 is found to be 78,408 MTs. Further, from the statement of Shri Pattanshetti, Assistant Manager (Stores) of the appellant firm, it is evident that the receipt of goods were entered as soon as they were received and the consumption of the goods were also recorded on a daily basis. If the appellant had followed this procedure as admitted by them, there is no reason to disbelieve the figures reflected in the daily stock statement maintained by the appellant. Therefore, we hold that for excise purposes reliance placed by the adjudicating authority on the figures reflected in the daily stock statement register cannot be faulted at all. - On the basis of these evidences available, we have no hesitation to conclude that the quantity of raw material received by the appellant during 1995-96 was only 78,408 MTs. and therefore, the appellant could have taken credit only on this quantity. Accordingly, we hold that the adjudicating authority has correctly confirmed the demand - However, some portion of demand is not sustainable - Penalty imposed is alsoo reduced - Decided partly in favour of assessee.
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2014 (2) TMI 1180
Reversal of CENVAT Credit - Non maintenance of separate accounts - Penalty u/s 11AC - held that:- issue has already been settled by the Tribunal s decision in favour of the assessee in the case of Majalgaon SSK Ltd. (2012 (7) TMI 880 - CESTAT MUMBAI), I find that the issue is no longer res integra - Decided in favour of assessee.
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2014 (2) TMI 1179
Classification Coconut oil in small packing of 200ml and less – Chapter 33 OR Chapter 15 of Central Excise Tariff Act – Supreme Court after condoning the delay dismissed the appeal filed the Revenue against the decision of Tribunal [2013 (12) TMI 392 - CESTAT MUMBAI ] finding no merit in the appeal wherein it was held that Edible Coconut Oil packed and sold in the packing of capacity of 200ml and less is classifiable under Chapter Heading 15 of the Central Excise Tariff and not under Chapter 33 of the Tariff - The edible Coconut oil who packed in the packing of more than 200ml the same is classifiable under Chapter 15 of Excise Tariff – Relying upon AISWARYA INDUSTRIES Versus COMMISSIONER OF C. EX., PONDICHERRY [2008 (7) TMI 771 - CESTAT, CHENNAI] - When the same edible oil is packed in the packing of 200ml or less cannot be considered as preparation for use on hair in the absence of any evidence that the composition of both types of oils are different.
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2014 (2) TMI 1177
Validity of Tribunal's order [2012 (8) TMI 902 - CESTAT NEW DELHI] - Obiter dicta - Held that:- It would be apposite to refer to the order of the Tribunal dated 28-8-2012, which would show that the Tribunal has dismissed the appeal of the assessee without giving any cogent and convincing reasons - Therefore, the order dated 28-8-2012, does not satisfy the requirements as enunciated by the Apex Court in M/s. Kranti Associates Pvt. Ltd. and Another v. Sh. Masood Ahmed Khan and Others [2010 (9) TMI 886 - SUPREME COURT OF INDIA] - Therefore, matter is remanded to the Tribunal to decide afresh after affording an opportunity of hearing to the parties in accordance with law - Decided in favour of assessee.
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2014 (2) TMI 1155
Denial of CENVAT Credit - Capital goods - whether various iron and steel items like MS Plate, HR Plate, MS channel, angles, etc. are entitled to avail the benefit of CENVAT credit of duty paid on the same - Held that:- if such goods are used for supporting structurals, they will not be entitled to CENVAT credit, but if the same are used for fabrication of machines installed in the factory, the benefit of CENVAT credit would be available. - Commissioner (Appeals) has, after considering the documentary evidence before him, given a categorical finding that such items have been used for making equipments and parts of rolling mills. He has also examined Schematic Diagram of Rolling Mill & Layout of Rolling Mill with regard to the uses of these items in the factory of the production. As such, he has held that in as much as the items in question were used for fabrication of the machines, the respondents are entitled to the CENVAT credit - Decided against Revenue.
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2014 (2) TMI 1101
Denial of refund claim of predeposit - Clearance of goods in excess of the limit prescribed - Exemption Notification No.08/2003-CE dated 01.03.2003 - Section 11A(2B) - exteneded period of limitation - Held that:- revenue department’s argument stems from its understanding that the refund claim was not tenable in view of Section 11A(2B) and that the demand could have been made during the extended period by virtue of Section 11A without issuing a notice. However, a careful reading of the appeal grounds would indicate that the plea of the assessee was that the facts found were not such so as to indicate fraud or misrepresentation as to attract the main provisions of Section 11A. Viewed from that perspective, there is no infirmity with the findings of the orders of the Tribunal. No substantial question of law arises - Decided against Revenue.
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2014 (2) TMI 1100
Waiver of pre-deposit of duty and penalty - Held that:- since the Additional Commissioner Central Excise has adjudicated upon the issue of liability, at this stage there is no occasion to doubt it particularly by this Court where the issue is not for decision on merit. Therefore, in safeguard of the interest of the Revenue, we are of the view that the learned Tribunal has rightly exercised its discretionary power which does not require interference of this Court - Petitioner is permitted to make pre deposit in installments - Decided partly in favour of assessee.
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2014 (2) TMI 1099
Cenvat Credit - Use of capital goods to manufacture exempted goods - Demand u/s 11A - Extended period of limitation - Held that:- Machine which was installed in the factory was used both for manufacture of exempted goods as well as dutiable goods. Dutiable goods were manufactured since October, 2006 which fact has been noted in Paragraph No. 8 of the judgment of the Tribunal. The Tribunal had denied the benefit on the pretext that " the certificate of the manufacturer relied upon by the appellant also confirms that the plant is usable for manufacture of aerated waters only after modification" - The manufacture had certified that machine is designed to handle carbonated/aerated soft drinks by software changes and minor adjustments. The certificate never said that the object can be achieved only after modification. The certificate did not use the word 'modification' which has crept in the order of the Tribunal. More so, before us now the appellant has filed certificate dated 25.09.2009 which indicates that no modification in the machine can be done in India since it is manufactured at Germany and imported in India - Thus, the appeal is allowed by setting aside the judgment of the Tribunal dated 01.05.2008 and the matter is remitted back to the Tribunal to decide the appeal afresh in accordance with law taking into consideration the certificate dated 25.09.2009 - Decided in favour of assessee
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2014 (2) TMI 1098
Penalty u/s 11AC read with Rule 25(1) - Suppression of facts - Willful misstatement or fraud or evasion of duty - Held that:- The Commissioner came to the finding that there was no willful misstatement or fraud or any contravention or any evasion of duty nor was there any suppression of fact. The aforesaid view of the Commissioner was upheld by the learned Tribunal. The question whether there has been any willful misstatement or fraud or any contravention or any evasion of duty or there is any suppression of fact are essentially questions of fact. These questions are concluded by the views expressed by the learned Tribunal. There is no question of law involved in this appeal - Decided against Revenue.
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2014 (2) TMI 1097
Whether in the facts and circumstances of the case there can be a deemed service of the order on the appellant merely because it was sent under registered cover and no acknowledgment was received more so than there was a specific rebuttal in the form of affidavit filed by the appellant - Denial of CENVAT Credit - Held that:- since the appellant was heard through its representative by the Commissioner (Appeals) after which the appellate order was passed on 23 November 2009, the appellant ought to have checked up with the office of the Commissioner (Appeals), if the order was not received. This in our view, begs the question of when the order of the Commissioner (Appeals) was communicated. Once the legislature has stipulated that the period of limitation under Section 35B (3) commences only upon the communication of the order which is sought to be appealed against, the Tribunal ought to have applied its mind to precisely when the order under appeal was communicated.
Tribunal was not justified in dismissing the appeal. Moreover, if an appeal is not filed within the period of three months, the Tribunal has the power to condone the delay under Sub section 5 of Section 35B if sufficient cause is shown. The question of condonation would of course, arise only, when the Tribunal comes to the conclusion that the appeal was not filed within three months from the date of communication of the order. - appropriate order to pass in the appeal is to quash and set aside the order of the Tribunal dated 24 September 2013 and to restore the proceedings back to the Tribunal for consideration afresh - Decided in favour of assessee.
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2014 (2) TMI 1096
Denial of CENVAT Credit - Supplier of input has wrongly paid duty - Whether activity of appellant amounts to manufacture - Held that:- credit cannot be denied on the ground that activity undertaken by the supplier of input did not amount to manufacture. In these circumstances, as the supplier of input is not party to the present proceeding and the assessment cannot be reopened at the recipient end - Following decision of C.C.E., Delhi-III v. Neel Metal Products Ltd. [2009 (1) TMI 155 - PUNJAB & HARYANA HIGH COURT] - Decided in favour of assessee.
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2014 (2) TMI 1094
SSI Exemption - Clubbing of clearance - two units held by husband and wife separately - Clandestine Removal - Held that:- Held that:- adjudicating authority has nowhere referred to any mutuality of interest between the units of husband and units owned by wife. He has observed that lack of mutuality of interest or financial flow back can be only one of the important consideration but cannot be made sole basis for arriving at the decision. Merely because the two owners of the units were husband and wife and the profits earned by them came into same household, does not mean that clearances of all the units is required to be clubbed.
All the units were separately registered with income tax as also sales tax authorities. Their locations of business were at separate places. In fact one of the unit was located in Delhi itself. There was no financial inter-twining and all the units were working with their own independent financial resources. There is no evidence on record to show that there was any mutuality of interest between the units except for the fact that Shri Pradeep Khanna was sometimes looking after the affairs of the units belonging to his wife which, as already discussed by us, cannot be made the basis for clubbing the clearances of the units owned by husband and wife. - Benefit of SSI exemption allowed - Decided in favor of assessee.
Clandestine Removal - Air-Conditioners / Compressors - sale through dealers - accounting entries of the dealers considered - realizations of unaccounted money - Held that:- When there are dealers appointed by the manufacturers with appropriate price margins who are engaged in such trading activity, an OEM could not have indulged in parallel sales of such large number of compressors because of the market forces and if they indulge in such activity it would have come to the notice of the manufacturer and the representative of the manufacturer testifies that no such trading had come to their notice. So this claim of trading in compressors is a very weak defence.
Contention of the appellant that the case is made on assumptions and surmises is not acceptable. Every case is to be decided based on inference to be drawn by a prudent judge from the evidence available. - In a clandestine activity, it is not possible to unearth every piece of evidence and such standard of proof is not required for proving evasion of tax. - Revenue has proved their case in respect of 606 air-conditioners held to be cleared without payment of duty by the appellant - demand of duty and penalty confirmed - Decided against the assessee.
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2014 (2) TMI 1093
Duty demand - Availment of Cenvat credit on “RAILS” falling under Chapter 73 of CETA - Held that:- appellant availed Cenvat credit on Rails as capital goods. The appellants are engaged in the manufacture of Fish Plates, etc. They have to send the material in the furnace and hot rolled fish plates come after moving on the Rails. Therefore the rolls are the components of the capital goods and they rightly fall under the purview of capital goods. The Department could not produce any evidence that these rolls are used for structural or for installation purposes. Therefore, they are eligible for Cenvat credit. The appellant have paid the interest on the 50% of the Cenvat credit availed by them as they were not entitled for full 100% of Cenvat credit - Decided in favour of assessee.
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2014 (2) TMI 1092
Collection of Excise duty from the customers, on account of fluctuation in rates of the petroleum products on the stocks lying at various depots - Demand u/s 11D - assessee being only a “dealer” and not a “manufacturer” - Held That:- It is clear that the petroleum products being marketed by the appellant depot had been manufactured by various oil companies. We also find that the provisions of Section 11D are applicable only to the person liable to pay the duty who in respect of any goods sold has collected from his customers an amount in excess of duty assessed and paid on the goods. This provision obviously would not be applicable to a dealer who sells the duty paid goods purchased from other manufacturers. The appellant, a HPCL Depot were admittedly selling duty paid petroleum products purchased from different oil companies. Therefore, the provisions of Section 11D are not applicable to the appellant - Decided in favour of assessee.
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2014 (2) TMI 1057
Manufacture of aluminium utensils - SSI Exemption or concessional rate of duty vide Notification No. 10/2002 - Captive consumption - Sometimes utensils are directly made from the sheets or some times sheets are further cut into circles which are used in the manufacture of utensils. Some of the articles like handles to be attached to the utensils are made by the casting process - Held that:- duty was being paid on the circles which are captively consumed as they were clearing the utensils free of duty. If the lower authorities comes to a finding that benefit of notification is not available to the appellant and the utensils are leviable to duty, the circles would become exempt on account of captively consumption Notification No. 67/95. The duty already paid on the same would be adjusted against the duty required to be paid by the appellant - issue involved is complex interpretation of law and no mala fide can be attributed to the appellant to impose penalty upon them. We accordingly, set aside the penalty. For the same reason, demand beyond the normal period of limitation would also not to be sustainable - matter is being remanded to the original adjudicating authority for de novo decision for the normal period of limitation - Decided in favour of assessee.
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2014 (2) TMI 1056
Denial of CENVAT Credit - duty paying documents - delay in availing credit - Department has denied the CENVAT credit to the appellants on the ground that the bills of entry are in the names of ABB Ltd. and original of which are not available - Held that:- Rule 9(1)(a)(ii) that any invoice issued for importer is admissible documents for CENVAT credit. In the present case, the appellants are having importer’s invoices showing the amount of duty on which they are seeking CENVAT credit. I, therefore, find no reason in denying the CENVAT credit to the appellants on the basis of the importer invoices. As regards second ground of denying credit on ground of delay in taking credit, there is no time-frame mentioned in the CENVAT Credit Rules in availing the CENVAT credit. Therefore, there is no reason to reject the CENVAT credit on the ground of time also - Decided in favour of assessee.
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2014 (2) TMI 1055
Availment of CENVAT Credit - Whether the radio active material (californlum - 252) used in fast lab analyzer is a eligible capital goods or not - Held that:- appellants had pleaded before the adjudicating authority that the item in question is a component of Fastlab Analyzer, and in fact without this component the said analyzer cannot function at all. The appellants had also submitted the brochure of the Fastlab Analyzer, published by the manufacturer, which clearly shows the impugned item, namely “One to three Cf252 neutron sources” as a component of the Fastlab Analyzer, and in the sketch the location of the same has also been indicated very clearly. The adjudicating authority has not contradicted above submissions of the appellants in the impugned order.
Therefore, Without going into the dispute as to whether the said item can be considered as capital goods, same would be in any case covered by the inputs definition and would be admissible for the credit - Decided against Revenue.
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2014 (2) TMI 1054
Benefit of SSI exemption - brand name of others - extended period of limitation - Held that:- Though the earlier show cause notice was in respect of seizure of goods, seized on the date of visit of officers, but we note that during the relevant period, use of brand name of others on goods different than the one manufactured by the brand name owner was held to be permissible by various decisions of Tribunal. Even if we accept the Revenue’s contention that the said brand name belonged to reputed manufacturer, they have not shown anything to establish that the said brand names were being used by their owners in respect of Transmission rubber belting. As various decisions during the relevant period had laid down that use of brand name of others, in respect of different goods would not bar claim of small scale exemption, we are of the view that no suppression can be attributable to the assessee - Decided against Revenue.
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2014 (2) TMI 1053
Denial of cenvat credit - Availment of cenvat credit distributed by head office as inputs service distributor - Held that:- Adjudication order seems to have been passed in a hurry without considering the submissions made by the appellants herein in their letter dated 18.01.13. Since we are of the view that the impugned order is passed in violation of principles of natural justice, we allow the stay petitions filed and take up the appeals themselves for disposal - appellant herein had filed a written submission on 18.01.13 raising various grounds in their defence on merits as well as on limitation. Obviously, the impugned order which was passed on 27.12.12 could not have considered these written submission given by the appellants in their defence. To that extent, we are of the view that the impugned order is unsustainable as it has been crossed in a violation of principles of natural justice - Matter remanded back - Decided in favour of assessee.
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2014 (2) TMI 1052
Disallowance of MODVAT Credit - Credit on hydraulic jack, ammonia paper and parts of locomotive - Held that:- in respect of hydraulic jack which is an item supplied with power transformers. It is used for lifting of the transformer tank, in order to move it on rails for changing oil in the event of short circuit fault. It is necessarily supplied against each order for transformer - assessee is entitled to avail the Modvat credit, in respect of excise duty paid on kits. In Daewoo Motors India Ltd. [2000 (6) TMI 96 - CEGAT, COURT NO. I, NEW DELHI] this Tribunal was considering whether the value of tool kits is to be incorporated in the assessable value of the motor vehicle - No infirmity in the order-in-appeal passed by the Commissioner of Central Excise (Appeals) - Following decision of BAJAJ AUTO LIMITED Versus COLLECTOR OF CENTRAL EXCISE, PUNE [1996 (10) TMI 117 - CEGAT, NEW DELHI] - Decided against Revenue.
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