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Central Excise - Case Laws
Showing 61 to 80 of 268 Records
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2014 (2) TMI 922
100% EOU - Demand of SAD on account of clearance to other units located in DTA by way of stock transfer - Benefit of exemption from levy of SAD leviable under Section 3(3) of the Customs Tariff Act 1975 - Interest u/s 11AB - Held that:- it is admitted position that the goods are not exempted from the Sales tax in the DTA to which they have been cleared from EOU unit of the appellant. Thus, we hold that the appellant is entitled to the benefit of exemption from levy of SAD leviable under Section 3(3) of the Customs Tariff Act 1975 in view of the specific exemption granted under Notification NO. 23/2003-CE, as amended - Decided in favour of assessee.
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2014 (2) TMI 921
Valuation of goods - Whether one normal price will have to be worked out for all depots or different normal prices for different depots may be accepted for assessment purposes - Held that:- From the instructions issued by the Board in 1996 and 2000, it is absolutely clear that when the goods are sold not at the factory but form a depot, the value to be taken is the value prevalent at the depot at the time of removal and if the value is not available at the time of removal, at the nearest point of time. The Board Circular also clarifies that when the goods are sold from different depots what is to be taken is only the value at a particular depot from where the goods are ultimately going to be sold and not the values prevalent at other depots.
It is abundantly clear that except for the change that "normal value" is replaced by "transaction value" there is no material difference in the method of valuation under the old section 4 and new section4 and also the valuation Rules made thereunder. The new section 4 introduced form 01/07/2000 envisages that the value has to be determined for each removal of excisable goods. In other words, the new Section 4 envisages the possibility of the goods being sold at different values to different places and to different customers and each of such values were acceptable for the purpose of assessment of duty, so long as the other conditions prescribed therein are satisfied.
On a given day, then there would be only one value irrespective of the fact that the goods are removed from different refineries and sold from different different depots. Such an interpretation of law, in our view defeats the purpose and object of new Section 4 which to levy excise duty on transaction value for each removal. Further Rule 7 of the Valuation Rules, 2000 also envisages that where the goods are sold by the assessee at the time and place of removal but are transferred to depot/other premises from where the excisable goods are to be sold after their clearance from the place of removal and where the assessee and buyer of the goods are not related and price is the sole consideration for sale, then the value shall be the normal transaction value such goods sold from such other place at or about the same time, and where such goods are not sold at or about some time at the time nearest to the time of removal of goods assessment. The expressions of "such goods" and "such other place" are significant "such goods" refers to goods of the same kind and quality and such other place means the place from which the goods would be ultimately sold on removal from the factory.
if the goods are to be sold after removal from the factory at Mumbai through the depot at Ahmedabad, it is the price prevailing at Ahmedabad at that particular time which would be relevant for the purpose of determination of assessable value for the goods cleared at Mumbai factory at a given date. If we take the value of the aggregate quantity of goods from all the depots throughout the country, the expression "such other place" loses its meaning and significance. It is a settled position of law that while interpreting no word should be rendered redundant or surplus. If the view taken by the adjudicating authority is accepted, it would result in an absurd situation as it would render the word "such goods" and "such other places" redundant - Following decision of Brakes India Ltd. vs. CCE, Chennai [2005 (1) TMI 211 - CESTAT, CHENNAI] - Decided in favour of assessee.
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2014 (2) TMI 920
Denial of Cenvat credit – ISD - Services can be treated as ‘input services' under Rule 2(l) of CENVAT Credit Rules, 2004 OR not - Nexus between services rendered in Corporate Office and RDCs with the manufacturing activity - Waiver of Pre-deposit – Held that:- The services were rendered at the applicant's Corporate Office as Regional Distribution Centers (RDC) - Merely because the input service tax is paid at a particular unit and the benefit is sought to be availed at another unit, the same is not prohibited under law - The contention of the ineligibility of credit on the input service credit on transportation from depot to retail outlets by the revenue holds ground - Following decision of asessee's own previous case [2013 (12) TMI 923 - CESTAT CHENNAI], stay was granted on all the items of services except in respect of tax relating to ‘transportation of goods’ from RDCs to retail outlets. - Conditional stay granted.
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2014 (2) TMI 919
Rectification of mistake - while the show cause notice proposes to deny CENVAT credit on the ground that the invoices were issued in the name of the head office whereas the credit is taken at the factory - Held that:- The order does not propose anything which is not sanctioned by the statute. Credit can be availed on receipt of services and services so received are utilized in relation to the manufacture of final products. The order merely makes obvious this position. Therefore, I do not find any mistake in the impugned order - Decided against assessee.
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2014 (2) TMI 918
Rectification of mistake - Tribunal in the said order has observed that waste and scrap sold by the appellant has arisen out of capital goods on which no credit was availed by them and as such, there was no requirement of payment of any duty on the said waste and scrap - Held that:- Revenue in the present application has introduced a letter dated 14-6-2006 written by the Superintendent (Demand) to Superintendent (Review) wherein the list of all the capital goods/inputs on which the appellant has taken the credit stand enclosed. We note that show cause notice in the present case was issued on 24-4-2002 and the Order-in-Original was passed on 13-1-2004. Thereafter the Order-in-Appeal was also passed on 26-5-2005. As such, it is clear that the said letter dated 14-6-2006, which is now being sought to be relied upon by the Revenue, was never the part of either the show cause notice or the adjudication order or the first appellate authority’s order. Further, the said letter was not produced before the Tribunal at the time of disposal of the appeal. As such, the Revenue’s endeavour to introduce the said letter in the records of the present case cannot be appreciated. Further, when the said letter was not placed before the Tribunal and accordingly was not considered, it cannot be said that there is any mistake on the part of the Tribunal requesting rectification of final order - Decided against revenue.
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2014 (2) TMI 917
Rectification - Corrigendum replacing the entire findings - Held that:- adjudicating authority becomes functus officio, as soon as he passes the Order-in-Original and corrigendum, if any, at the most can be for correcting the factual errors. It is an admitted fact by both sides that the corrigendum issued by the Commissioner of Central Excise, Surat-I has replaced the entire findings of the Order-in-Original Nos. 31-35/demand/2012, it is so; the same seems to be inconsistent with law - At the same time to meet ends of justice; as requested by both sides, we direct the adjudicating authority to reconsider the issue afresh after following the principle of natural justice - Decided in favour of assessee.
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2014 (2) TMI 916
100% EOU - Clearance of non-duty paid goods to DTA - Extended period of limitation - Imposition of interest and penalty - Appellants were working under Notification 1/95-CE dated 1.4.1995 and procuring the raw material without payment of duty on the condition that the same is used in the manufacture of goods exported - Held that:- statutory records maintained by the appellants show the use of the raw material procured without payment of duty for intended use. However, the detailed investigation was conducted from various transporters as well as buyers, which shows that in fact the raw material which was procured without payment of duty was cleared clandestinely to DTA. The documents prepared by the appellants were found to be fake and ultimately in the year 2006, the evidence collected was put to the proprietors and they admitted the clandestine clearance of the goods without payment of duty and thereafter the show cause notices were issued within five years hence the ratio of the above decisions relied upon by the Revenue are fully applicable on the facts of the present case. As the appellants are not disputing the demands on merits before the adjudicating authority nor in the present appeals, therefore we find no merit in the contention of the appellants that the demands are time barred - Decided against assessee.
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2014 (2) TMI 915
Waiver of pre-deposit - Denial of benefit of CENVAT credit of additional customs duty - Disallowance of on the ground of violation of condition of Notification No. 32/2005-Cus., dated 8-4-2005 regarding installation of capital goods - The lower authorities have denied the CENVAT credit on the ground that there was no extension of periods granted by the appropriate officer for installation of the capital goods - Held that:- violation, if at all, is of Notification issued under the Customs Act, relatable to the import of the capital goods. As such, denial of CENVAT credit by the Excise authorities on the said ground is not appropriate. We are informed by the ld. Advocate that no action stands taken by the Commissioner alleging any violation and the consequent denial of the benefit of the Customs notification.
Certificate showing installation of the capital goods in the appellant factory stands given by the Central Excise authority on 28-9-2008. Even if there is no express extension of the period of 6 months, grant of such certificate within the extended period reflects upon the deemed extension - drawback also stands availed by the importer. It is only a doubt expressed by them and we are of the view that such doubt so expressed was a verifiable fact and the authorities were within their rights to verify the same - stay granted.
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2014 (2) TMI 914
Rejection of miscellaneous application seeking certified copy of Order-in-Appeal - Held that:- First appellate authority vide Order-in-Appeal No. CCEA-SRT-II/SSP-97/u/s 35A(3) (Misc. Order), dated 21-11-2012, has passed an order under the provisions of Section 35A rejecting the miscellaneous application filed by the assessee for providing him certified copy of Order-in-Appeal dated 26-2-2007. Suffice to say that the first appellate authority had no business to pass an appealable order on miscellaneous application filed for supplying an assessee a certified copy of Order-in-Appeal, we hold that the impugned order is non est and needs to be disposed as such. Be that as it may, we find that the appellant herein is asking only a certified copy of the Order-in-Appeal passed by first appellate authority on 26-2-2007, which in our considered view, needs to be given to the assessee. We are also surprised with the attitude of the assessee to file a miscellaneous application, when he could have got a copy of the Order-in-Appeal dated 26-2-2007 by filing a RTI application.
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2014 (2) TMI 877
Rejection of refund claim - subsequent fluctuation in the prices - issuance of credit notes - Unjust enrichment under section 11B of the Central Excise Act - Held that:- subsequent reduction in prices by passing on higher discounts to the customers after the clearance of the goods cannot alter the excise duty liability of the appellant M/s Videocon - Once the assessee has cleared the goods on the classification and price indicated by him at the time of the removal of the goods from the factory gate, the assessee becomes liable to payment of duty on that date and time and subsequent reduction in prices for whatever reason cannot be a matter of concern to the Central Excise Department as the liability to payment of excise duty was concerned. This is the view which was taken by the Tribunal in the case of Indo Hacks Ltd. v. Collector of Central Excise, Hyderabad - [1985 (2) TMI 137 - CEGAT, NEW DELHI] and it seems to us that the Tribunal's view that the duty is chargeable at the rate and price when the commodity is cleared at the factory gate and not on the price reduced at a subsequent date is unexceptionable. Besides as rightly observed by the Tribunal the subsequent fluctuation in the prices of the commodity can have no relevance whatsoever so far as the liability to pay excise duty is concerned - Decided against assessee.
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2014 (2) TMI 876
Whether the respondents herein is entitled for the benefit of Notification No.115/75-CE dtd 30.4.1975 as amended for exemption of the product "soap" manufactured by them - respondent herein is the manufacturer and is manufacturing vanaspati and refined edible oil in "a composite mill" and under takes "oil milling and solvent extraction" in their factory prior to refining - Held that:- all the products manufactured by the assessee in one of the industries specified in the schedule of the notification are eligible for exemption. As already recorded herein above, there is no dispute that the respondent falls under the category of "oil mill and solvent extraction industry". If it be so, benefit of the above said notification will be extendable to the respondent herein. We find that the adjudicating authority has correctly done so by relying upon the decisions of this Tribunal. The said decisions are already cited herein above, in the submissions made by the learned advocate. We find that the revenue is not able to bring on record any contrary evidence to indicate that respondent is not an oil milling and solvent extraction unit. The entire exercise of the revenue in this appeal seems to be that the respondents is not "oil milling and solvent extraction unit", they were also manufacturing soap which is not a bye-product but a final product and does not fit into the activity of oil milling or solvent extraction.
Notification as reproduced verbatim does not specify the requirement of the final products being related to the industry which are covered in the schedule of the said notification. Another point argued by the revenue is that during the relevant period appellant had not manufactured any item in the oil milling and solvent extraction unit, hence not eligible for the benefit of notification, seems to be flimsy and baseless argument, as said notification does not indicate that the assessee needs to continuously manufacture the goods to avail the benefit of exemption granted by notification No.115/75-CE - Decided against Revenue.
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2014 (2) TMI 875
Denial of CENVAT Credit - Penalty under Rule 15(1) of CENVAT Credit Rules, 2004 and Rule 15(2) of the said Rules read with Section 11AC of the Central Excise Act - Enhancement in penalty - Held that:- appellant issued the purchase order for purchasing the CI scrap. They received the CI scrap accompanied with invoices indicated as CI scrap. Rule 9(3) of the CENVAT Credit Rules as it stood at the material period provides that the manufacturer of excisable goods taking CENVAT credit on inputs shall take reasonable steps to ensure that the input or capital goods in respect of which he has taken the CENVAT credit on which the appropriate duty of excise as indicated in the documents accompanying the goods has been paid. The Explanation to Rule 9(3) of the said Rules provides that the manufacturer shall be deemed to have been taken reasonable steps if he satisfies himself about the identity and address of the manufacturer or supplier as the goods may be showing the documents evidencing payment of excise duty either from his personal knowledge or on the basis of the certificate given by a person.
Dealer is registered under Central Excise Rules and they are in existence in their address. There is no material available that the CENVAT invoices accompanied with goods are not genuine. So, in my considered opinion, the appellant had satisfied the conditions as provided under Rule 9(3) of the said Rules. Hence, there is no reason to deny the credit on the appellant. The dispute raised by the Revenue of value of the goods, cannot be reason for denial of CENVAT credit subject to fulfillment of condition of CENVAT Credit Rules. Apart from that, the transaction of the goods at a lower price is within the domain of buyer and seller - impugned order is modified insofar as the demand of duty along with interest and penalty imposed on the appellant are set aside - Decided in favour of assessee.
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2014 (2) TMI 874
Waiver of pre-deposit of duty - Penalty u/s 11AC and Rule 26 of Central Excise Rules, 2002 - Demand of differential duty - Reliability of documents - Held that:- Applicant company is manufacture and clearance of Silico Manganese from their factory for the period from 2005 to November, 2007 clandestinely without payment of appropriate duty - data was maintained in ‘Tally’ accounting package and de-coded by the officers after getting necessary Password and user I.D. from the computer operator Shri Ajay Kr. Behara. In the said Pendrive, the data related to account information, inventory information, accounting choice, inventory vouchers, profit and loss account, stock scenario, ratio analysis, sales register, purchase register, zonal register were maintained.
Directors has meticulously analyzed the data contained in the said Pendrive vis-`-vis the statutory records maintained by the Applicant in the daily stock register and arrived at a finding that the sales which were not reflected in the DSA had been removed without payment of duty from the factory. The Directors cannot absolve themselves totally against such clearances - Applicant has failed to make out a prima facie case for total waiver of pre-deposit of dues adjudged against them - Conditional stay granted.
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2014 (2) TMI 873
Waiver of pre-deposit - Cenvat credit on the service tax paid on the input services - Notification No. 8/2005-ST, dated 1.3.2005- Whether Cenvat Credit of service tax paid by a job-worker on the taxable service received by the respondent is liable to be denied to the latter on the ground that the job worker was not liable to pay the tax by virtue of exemption Notification No. 8/2005-ST, dated 1.3.2005 - Held that:- issue involved in this case is squarely covered by the decision of Federal Mogul TPR India Ltd. vs. CCE Bangalore - [2010 (5) TMI 350 - CESTAT, BANGALORE] and CCE v. Laxmi Metal Pressing Works Pvt. Ltd. - [2009 (10) TMI 181 - CESTAT, MUMBAI] therefore, the assessee has made out a case for 100% waiver of pre-deposit of all dues adjudged against them. Accordingly, I grant waiver of the requirement of pre-deposit of duty, interest and penalty and stay recovery thereof during the pendency of the appeals - Stay granted.
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2014 (2) TMI 872
Availment of CENVAT Credit - Whether the appellant is entitled to take CENVAT credit on welding electrodes which has been used in the repair and maintenance of inputs which has gone into manufacturing of final product - Held that:- Following decision in Supreme Court in thecase of Union of India vs. Hindustan Zinc Ltd. - [2006 (11) TMI 551 - SUPREME COURT OF INDIA] it is held that the assessee is entitled to avail input credit on welding electrodes which has been used for repair and maintenance of plant and machinery - Decided in favour of assessee.
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2014 (2) TMI 871
Disallowance of input credit availed - Fixed Facility Charges - Adjudicating authority concluded and in our prima-facie view erroneously, that facilitation charges are not in respect of any identifiable commodity consumed in the manufacture of the final product - Held that:- This view is prima facie not sustainable. In this view of the matter, we grant waiver of pre-deposit in full and stay all further proceedings pursuant to the impugned adjudication order pending disposal of appeal - Stay granted.
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2014 (2) TMI 870
Availment of CENVAT Credit - appellant had taken cenvat credit of service tax paid on telephone services, courier services and insurance services for insurance of the company's employees & vehicles - Held that:- As regards the mobile telephone services, the same is in respect of the landline phone installed in the factory and phone provided to the appellant company to their employees. Obviously, no manufacturer would provide mobile phones to his employees purely for their personal use. Mobile phones are provided by a company to its employees for the company's work. Therefore, just because some calls may have been made by the employees for their person work, it cannot be presumed that mobile phones have been used by the employers for their personal work only - telephone services availed in respect of the mobile phones supplied to their employees are admissible for cenvat credit. In view of this, the impugned order disallowing the cenvat credit in respect of telephone services is not sustainable - insurance is the requirement of Section 38 of the Employees State Insurance Act, 1948 mandating that all the employees be insured in the manner provided in this Act. In view of this, it has to be held that providing of insurance cover to the employees for compliance with the provisions of Employees State Insurance Act, 1948 has to be treated as service used in or in relation to the manufacture of final product - As regards the insurance of the company's vehicles, since the vehicles have been used for the company's work, the same would also have to be treated as covered by "input service" would be eligible for cenvat credit - Decided in favour of assessee.
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2014 (2) TMI 869
Waiver of pre deposit - Imposition of interest, penalty under Rule 15(2) of CENVAT Credit Rules, 2002 read with Section 11AC and penalty under Rule 26(2) of CENVAT Credit Rules, 2002 - Held that:- It transpires that though the show cause notice is directing the current appellants to show cause as to why a penalty should not be imposed upon them under Rule 26 (2) of Central Excise Rules, 2002, we find that the adjudicating authority has not imposed any individual penalties on the two appellants before us. Be that as it may, on a specific query from the Bench as to the provision for recovery of interest, penalties which are imposed on a proprietor/ concern, from others, it was informed that there is no such provision for recovery. On the face of it, we find that the amounts which are confirmed against M/s Aaishwarya International as dues, at the utmost, can be recovered from the proprietor of M/s Aaishwarya International and not from individuals who are, prima facie, in no way connected with the activities of such firms. In our view, the appellants herein have made out a prima facie case for waiver of pre-deposit of the amounts attributable to them by the adjudicating authority in his Order-in-Original - Applications for waiver of pre-deposit of amounts involved are allowed and recovery thereof stayed till the disposal of appeals - Stay granted.
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2014 (2) TMI 868
Availment of CENVAT Credit on capital goods - Exemption on export goods - Benefit of Notification No. 30/2004-C.E., dated 9-7-2004 - Held that:- Export goods are not exempted goods. In the present case, the appellant has exported the readymade garments manufactured by them. Only in respect of DTA clearance, the appellant chose to avail the exemption. As regards the export goods, they did not avail of the exemption. Therefore, the availment of capital goods credit cannot be said to be for exclusive manufacture of “exempted goods”. Therefore, the appellant was rightly entitled to Cenvat credit duty of excise duty paid on the capital goods used in the manufacture of export goods. Coming to the utilization of the said credit, the appellant has utilised said credit for payment of duty on hangers and zippers which were procured duty free in terms of the Notification No. 43/2001.
Appellant was liable to discharge duty liability on the zippers and hangers in terms of Rule 6 of the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001. Rule 6 provides two options. One option is to clear the goods on payment of duty. The other option is to clear the goods without payment of duty to the manufacturer of hangers and zippers who shall add the same to his non-duty paid stock and dealt with accordingly. The appellant chose to first option. There is no bar in the said Rules, which bars the appellant in clearing the goods on payment of duty. Therefore, the appellant has discharged the duty on the hangers and zippers in accordance with law. In view of the above, the impugned order is not sustainable in law - Decided in favour of assessee.
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2014 (2) TMI 852
Waiver of pre deposit - Demand of Special Additional Duty - Reversal of the CENVAT credit - Held that:- Prima facie, the appellants have made out a case inasmuch as it has not been specifically held by the adjudicating authority that the price shown in the domestic sale invoices produced by the assessee did not incorporate therein the element of SAD. The adverse findings recorded against the assessee appear to be consequential to lack of correlation and are not based on to total rebuttal of the assessee’s contention. In this view of the matter, we take into account the consistent claim of the appellants to have paid more duty than the sum total of CVD and SAD paid on the imported goods, at the time of domestic sale clearances - Hence there will be waiver and stay as prayed for - Stay granted.
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