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Central Excise - Case Laws
Showing 41 to 60 of 268 Records
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2014 (2) TMI 1051
100% EOU - Clearance of goods upto 50% of FOB value of the exports into Domestic Tariff Area (DTA) by availing concessional rate of duty under Notification No.23/2003-CE dated 31.3.2003 as amended - use of duty-free imported raw materials / inputs like rough granite blocks, multi-colour granites, abrasives, tin oxide powder for the manufacture of finished goods cleared in DTA - Held that:- the Commissioner observed the allegation of non-fulfillment of the condition of exemption under Sl. No.3A of the said Notification has not been contested by the applicant - applicant failed to make out a prima facie case for waiver of predeposit of entire amount of duty along with interest - Conditional stay granted.
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2014 (2) TMI 1050
Classification of goods - Reclassification of the products such as GOC and C-Pentane - Revenue relying upon the test report showing that boiling range of motor spirit and the product in question qualifies the same to be classifiable as motor spirit - Held that:- as per Chapter Note 4(a) of Chapter 27 of the Central Excise Tariff, “motor spirit” means any hydrocarbon oil (excluding crude mineral oil) which has its flash point below 25°C and which either by itself or in admixture with any other substance, is suitable for use as fuel in spark ignition engines. In the present case, there is no evidence on record produced by the Revenue either before the adjudicating authority or in the present appeal that the product in question is suitable for use as fuel in spark ignition engines. In the absence of such evidence, we find no infirmity in the impugned order - Decided against Revenue.
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2014 (2) TMI 1049
Valuation - Show cause Notice was issued on 06.09.1984 demanding duty in respect of recorded copies on the ground that M/s Gramophone Company of India Ltd are holding copyright of the programme recorded by the respondents - Respondents have no right to sell to any other party other than M/s GCIL - Therefore, Revenue held that Respondents are liable to pay duty on the price at which M/s GCIL is selling the tapes manufactured by the Respondents to their dealers - Held that:- In the Show Cause Notice, the allegation is that M/s GCIL are the manufacturers as per the provisions of Section 2(f) of the Central Excise Act. In a similar situation we find that the Tribunal in the case of Collector vs Music India Ltd (supra) held that the buyers price to their own sellers cannot be the basis for determination of assessable value at the hands of the assessee who undertakes the activity of recording the audio cassettes - in the Show cause Notice there is a specific averment that M/s GCIL is the manufacturer and the present Respondents are liable to pay duty on the price at which M/s GCIL is selling. In case M/s GCIL is to be treated as manufacturer then the Respondents are not liable to pay any duty - Decided against Revenue.
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2014 (2) TMI 1048
Exemption on the basis of 11C Notification No. 44/90-C.E. (N.T.), dated 1-11-1990 - Manufacturing of drugs - Held that:- Reading of 11C Notification makes clear that rifampicin and formation of rifampicin with Isoniazid (INH) are only eligible under the exemption Notification. Therefore, the drug montorip Capsule which is a formulation of 3 combination mainly Rifampicin + Pyrazinamide + Isoniazid shall not be eligible for exemption under the Notification in question - so far as Montomycin and Montex Forte is concerned, the appellant has already succeeded before adjudicating authority who followed 11C Notification and granted relief. In view of the clear mandate of 11C Notification appeal is dismissed insofar as montorip capsule is concerned - Decided against assessee.
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2014 (2) TMI 1012
Denial of CENVAT Credit - Clandestine removal of goods - After detailed investigation, the Revenue Officers on scrutiny of the records carne to a conclusion that the respondent had removed their finished goods clandestinely without payment of duty and they have availed ineligible Cenvat credit of the petrochemical products the quantity of which was short received in their factory premises - Imposition of equivalent penalty - Held that:- As regards the denial of the Cenvat credit to the respondent on the inputs which were received short, I find that the assessee in their appeal against the very same impugned order had contended that the confirmation of demand on this ground of even Rs. 38,250/- is incorrect. The said appeal was allowed by this Bench vide final order dated 4-5-2012 wherein the Bench has held that there is no case for upholding the order passed by the Commissioner (Appeals) for denial of Cenvat credit on the quantity of inputs which were received short. Conversely it would mean that the Bench has accepted the findings of the first appellate authority that the loss of the inputs being marginal, the Cenvat credit should not be denied to an assessee. Respectfully following the same; I hold that the Revenue’s appeal to the extent it challenges the appeal of the first appellate authority on this point of denial of Cenvat credit for short receipt of the inputs is liable to be rejected.
In the Order-in-Original, the adjudicating authority has admitted that as far as the role of buyers is concerned, there is little evidence from the buyers’ end to corroborate that the goods despatched were not under the proper duty paying documents and also noted that Revenue would not bring corroborative evidences to substantiate their case. If these are the findings of the adjudicating authority as to there being no corroborative evidences, then, the Revenue has failed to bring home charges against the respondent, as has been correctly held by the first appellate authority as per the findings reproduced hereinabove. I find that the first appellate authority has correctly come to the conclusion that there is no evidence of clandestine removal of the goods by the respondent herein. In view of this, the Revenue’s appeal against the main assessee fails. Since the Revenue’s appeal against the main assessee fails, the consequent appeals of setting aside of the penalties on other two individuals also fail - Decided against Revenue.
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2014 (2) TMI 1011
Duty demand - Revenue imposed duty since no excise duty is paid on final product, namely, cement, the applicant had to pay 10% of the value of cement, as per the provisions of Rule 6 of the CENVAT Credit Rules, 2004, especially because supplies to SEZ developer was not mentioned in the clause 6(6) of CENVAT Credit Rules 2004 at the relevant time - Held that:- where the benefit was extended for clearances to 100% EOU or FTZ by amending Rule 57C, wherein, the Tribunal had held that said notification can have only prospective effect and not retrospective effect - benefit has to be extended for the earlier period also. Besides, the applicant has a very strong case on time bar also. Considering all these aspects, we order that the appeal may be admitted without any pre-deposit - Stay granted.
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2014 (2) TMI 1010
Waiver of pre deposit - Availment of CENVAT Credit - manufacture of computers system and is also engaged in the trading - input services i.e Management, maintenance and repair service, software services - Held that:- In respect of the credit attributable to the trading activity, we do not find any merit in the submissions of the learned counsel for the applicant because the applicant should not have taken or at least reversed it on his own. There is no submission that they have made any reversal either at Bangalore or Pondicherry. The matter under consideration is credit taken at Pondicherry. So it is appropriate that the portion attributable to trading is ordered to be reversed immediately. Therefore, we order the applicant to make a pre-deposit of Rs.1.7 crores in respect of Appeal - Conditional stay granted.
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2014 (2) TMI 1009
Waiver of pre-deposit - Classification of the product “Gronimix Neem Blended Organic Manure” - fertilizer - Classification under CETA 3101 00 99 or CETA 3808 99 10 - Held that:- literature/pamphlet available in para 85.1 of the adjudicating order dated 21-2-2013 as to what nutrient/nutrients are provided by the product manufactured/marketed by the appellants. On the contrary one of the features of the product mentioned in the pamphlet is that “Application of Gronimix with ‘N’ containing fertilizers regulates the release of nitrogen for longer time and increases the effect of fertilizers”. This feature only seems to suggest that release of Nitrogen (N) from a fertilizer is also regulated by the product manufactured by the appellant. Under the heading ‘Effectiveness’ of the pamphlet contained in para 85.1 of the adjudication order dated 21-2-2013 also the product has been advertised to control Nemotodes, termites and soil borne pests which have been appropriately interpreted by the adjudicating authority in paras 89.1 & 89.2 of the adjudication order. Appellants have, therefore not made out a prima facie case for complete waiver of the dues and are required to be put to certain conditions - Conditional stay granted.
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2014 (2) TMI 1008
Waiver of penalty - short payment was due to error of interpretation of exemption Notification No. 15/2002, dated 1-3-2002 - Payment of Short duty - Held that:- spell of contravention is only 5 months from the date of implementation of notification. There is no observation that the appellant deliberately caused loss to revenue except an assumption that there was intentional short-payment. As soon as the respondent came to understand right interpretation it made good loss of revenue. For this short spell of breach, it may not be construed that there was deliberate breach of knowable law. At the infancy stage of implementation of notification, arise of difficulties may not be ruled out. Finding no contumacious conduct of the respondent, granting waiver of penalty by ld. Commissioner (A) appears to be justified. Therefore, there shall be no interference to his order - Decided against Revenue.
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2014 (2) TMI 1007
Denial of remission of duty - destruction of goods - Appellant’s both factories were flooded by water due to heavy rains and flood in Daman Ganga River in August, 2004 - Application was unanswered by the office of the Commissioner of Central Excise or the office of the Assistant Commissioner of Central Excise having jurisdiction over the appellant’s factory - Held that:- the appellant having informed the authorities about the quality of the goods which needs to be destroyed, as being unfit for human consumption, it was for the lower authorities to respond to such a letter received from the appellant and also the remission application. - The lower authorities have not even bothered to call for any details or give any response to the appellant on the remission application. - The appellant had taken all the possible actions from his side to keep the departmeat informed about the requirement of remission of the duty and also of the destruction of the goods.
The rejection of the remission applications by the adjudicating authority in these cases is not in consonance with the law and are unsustainable. - Following decision of assessee's own previous case [2008 (4) TMI 636 - CESTAT, AHMEDABAD] - Decided in favour of assessee.
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2014 (2) TMI 1006
Waiver of pre deposit - Availment of CENVAT Credit on inputs - Captive consumption u/ntf 67/95 - Exemption vide Notification No. 6/2006-C.E., dated 1-3-2006 - availing exemption on Final Products as supply to International Competitive Bidding (ICB) Project - Held that:- assessees prima facie were not required to discharge the obligation prescribed under Rule 6 of Cenvat Credit Rules, 2001 as they were covered by Clause (vii) of Rule 6(6), which stipulates that the provisions relating to payment of 10% or 5% as the case may be were not required to be followed as the goods were supplied against I.C.B. in terms of Notification No. 6/2002 or 6/2006 and therefore, exempted from levy of duty of customs and additional duty as per Clause (vii) of Rule 6(6) of the Cenvat Credit Rules. The assessees therefore, have made out a prima facie case on merits and we therefore dispense with pre-deposit of duty, interest and penalty and stay recovery thereof pending the appeal. - Following its earlier decision in [2012 (10) TMI 105 - CESTAT, CHENNAI] - Stay granted.
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2014 (2) TMI 970
Availment of CENVAT Credit - Penalty u/s 11AC - Interest u/s 11AB - Held that:- appellant discharged excise duty liability on the activity of repacking and this payment of duty by the appellant was not challenged by the Revenue. Revenue's contention is that the activity does not amount to manufacture and therefore, the appellant is not eligible for the credit of the CVD paid on the input materials - Even if the appellant had not discharged any excise duty liability, they could have claimed drawback of the Customs and Excise duty paid on the input materials. Therefore, there is no incentive for the appellant to undertake repacking activity and discharge duty liability with an intention to gain any undue benefit - Therefore, we are of the prima facie view that the appellant has made out a case in their favour for grant of stay and accordingly we grant unconditional waiver from pre-deposit of the dues adjudged against the appellant and stay recovery thereof during the pendency of the appeal - Stay granted.
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2014 (2) TMI 969
Valuation - determination of cost of prodcution - Incorrect CAS-4 figures - Held that:- Adjudication order that the applicant withdrew their application seeking provisional assessment and assured that after finalization of annual accounts they will produce details of cost construction. It is also seen from the adjudication order that the applicant had not furnished the documents as assured by them. We also notice that Deputy Director (Cost) opined that Cost/Unit shown against Sl.No.20 with particulars "cost of production of goods disposed” should be taken for determination of cost of production for levy of duty in terms of Rule 8 of the “Valuation Rules”. We find that the duty was demanded on the basis of the opinion given by the Deputy Director (Cost), who is also an authority on this issue. In view of that, the applicant failed to make out a prima facie case for waiver of pre-deposit of the entire amount of tax - Conditional stay granted.
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2014 (2) TMI 968
Valuation - Deduction of breakage allowance from assessable value in terms of sales policy - Held that:- Any allowance in speculation is not permissible in law. Therefore, ld. Authority below have rightly pointed out that an imaginary deduction was claimed by the appellant. Such observation of the appellate authority does not require intervention - Decided in favour of assessee.
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2014 (2) TMI 967
Demand of differential duty - Shortage in stock - Held that:- there is a shortage of 11.8 tones of finished goods in the factory premises when the officers visited the said premises. Today also, there is no dispute as to the shortage of finished goods as the appellant herein is only claiming that the shortage is not worked out correctly and they are unable to ascertain the correct shortage since the Revenue has not given the calculation sheet which was drawn at the time of stock taking. In my considered view, the shortage was sought to be explained by the Manager and the Director of the company by giving an explanation that over a period of time there could be shortage due to the sizing of all the ingots manufactured by them. To my knowledge, even such an explanation could have been accounted for only few kgs but could not be considered valid for entire shortage which has been noticed.
Shortage which is detected by the department is of the finished goods manufactured by the appellant. I also note that the appellants have never challenged the shortages. On the background of such a factual matrix, I find that there is no corroborative evidence adduced by the Revenue either in form of any statement of the purchaser or a transporter or the statement of the director or the general manager as to the allegation of removal of these goods which were found short. Since there is no allegation of clandestine removal, but there is a shortage of finished goods. I hold that the appellants are liable to pay the excise duty on the said finished goods shortages which is noticed by the authorities during the stock verification.
As regards the penalties imposed on the individuals who are General Manager and Director of the appellant-assessee, I find that there is no reason for visiting them with penalty under Rule 26 of the Central Excise Rules, 2002 inasmuch as, there is no evidence of there being a clandestine removal of the finished goods nor there is any role attributed to the individuals/appellant in the shortages which was noticed during the stock taking by the authorities. In the absence of any such evidences, I am of the view that the penalties imposed on these individuals unsustainable and are liable to be set aside - Decided partly in favour of assessee.
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2014 (2) TMI 966
Levy of interest - Deemed manufacture - refined oil - Period of dispute - Held that:- in Finance Bill, 2005 refining was specifically brought into the scope of Chapter 15 - In the bill it was stated that the said note shall be effective from 1-3-86 and ending 28-2-2005 - Examination of the provision enacted by the 2005 Finance Bill shows that clearances of refined oil made by the appellant for the period 17-12-2004 to 12-1-2005 was dutiable which is claimed to have suffered duty on 2-3-2005. Till the position is made clear by Finance Bill, 2005, Assessees were not in a position to determine their liability - Therefore let the dispute come to an end without levy of interest as has been held by learned Commissioner (Appeals) - Decided against Revenue.
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2014 (2) TMI 965
Waiver of predeposit of duty - captive consumption - Cement cleared to units in Special Economic Zone (SEZ) without payment of excise duty - Applicants had also claimed exemption on clinker captively consumed in manufacture of cement as per Notification No.67/95-CE dated 16.3.1995 - Exemption denied - Held that:- demand has been confirmed on clinker manufactured as an intermediate product in the course of manufacture of cement which has been cleared to units in SEZ, for the reason that as per the proviso to Notification No. 67/95-CEd dated 16.3.95 the benefit of captive consumption exemption is not available to inputs used in or in relation to the manufacture of final products which are exempt from whole of the duty of excise or additional duty of excise leviable thereon or chargeable to nil rate of duty thereon other than those cleared - prima facie proviso to Notification No.67/95-CE is not attracted against the assessee - Following decision of Dalmia (Bharat) Cements Ltd. Vs. CCE [2008 (10) TMI 466 - CESTAT, CHENNAI] - Stay granted.
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2014 (2) TMI 964
Disallowance of CENVAT Credit - Non production of ST-XXVI-A forms during the course of investigation - Certain quantity and value of goods did not reach factory of respondent for which Cenvat credit was to be disallowed - Held that:- Nothing has come out from the adjudication order that the extent of goods which entered the State of Himachal Pradesh has gone elsewhere without reaching to the factory of the respondent. In absence of cogent evidence by Revenue to prove the diversion of goods after that reached the State of Himachal Pradesh, the order of learned Adjudicating Authority granting relief to the extent of Rs. 21,35,577/- cannot be disbelieved - Decided against Revenue.
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2014 (2) TMI 963
Imposition of penalty - penalty on signatory - Appeal dismissed for non-compliance to the stay order - Held that:- Appellant was dealt with as authorised signatory in Para 1.5 thereof. The allegation therein shows that there was failure to make entry of certain transactions by this appellant. That adjudication order does not show role of the present appellant causing prejudice to revenue. Learned Adjudicating Authority simply basing on an affidavit held that the appellant had a criminal intention. Unless cogent evidence is brought to record to say that retraction in affidavit is untruthful and the appellant was instrumental to create fake documents, role of the appellant cannot be appreciated. For lack of examination and corroborative evidence proving the retraction was under influence, but there were fake documents proposition of penalty of Rs. 60,000/- on the appellant is not possible to be sustained - Decided in favour of assessee.
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2014 (2) TMI 923
Waiver of pre-deposit - Valuation - Manufacture of wagons for Indian Railways - Inclusion of Free supplies - Rule 6 of valuation Rules - Held that:- It is difficult to appreciate that M/s. Burn Standard Company, who are engaged in the manufacture of railway wagons, could not appreciate the new provisions prescribed under Section 4 of the CEA, 1944 and the Rules made thereunder, introduced from 01.07.2000. On a query from the Bench, whether the Applicant had approached the Department for any clarification regarding the includibility of the value of free issue materials in the assessable value of wagons, after introduction of the Transaction Value regime, the ld. Advocate expressed his inability to answer the same, as nothing is borne out from the record available with him. - Applicant could not able to make out a prima-facie case for total waiver of predeposit of the dues adjudged. - Stay granted partly.
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