|
Advanced Search Options
Central Excise - Case Laws
Showing 81 to 100 of 268 Records
-
2014 (2) TMI 825
Waiver of demand for pre-deposit of interest confirmed under Section 11AB of the Central Excise Act, 1944 - Held that:- in the light of the decisions in the case of Eicher Demm vs. CCE-(2001 (9) TMI 192 - CEGAT, COURT NO. I, NEW DELHI) and W.S. Industries vs. CCCE- (2001 (12) TMI 112 - CEGAT, BANGALORE), the applicant has made out a case for 100% waiver of pre-deposit. Accordingly, I grant waiver of the requirement of pre-deposit of interest and stay recovery thereof during the pendency of the appeal - Stay granted.
-
2014 (2) TMI 824
Rejection of refund claim - Unjust enrichment - Duty under protest - Held that:- It is a case where duty has been paid under protest by the appellant on persuasion of the department on intermediate product. It is also an admitted fact that although duty has been paid under protest but the same has not been shown by the appellant in their account as receivable - appellant has not produced any evidence before this tribunal for remanding the matter to the lower authorities for reconsideration. Therefore, in the absence of any cogent evidence, the matter need not to be remanded. As the appellant has failed to produce any cogent evidence in support of their claim. I do not find any infirmity in the impugned order - Decided against assessee.
-
2014 (2) TMI 823
Availment of CENVAT Credit - Input Service Distributor - Violation of Rule 7 of Cenvat Credit Rules, 2004 - Denial of excess input service credit - Held that:- other units of input service distributor are exclusively engaged in the manufacture of exempted goods. But, ISD issued cenvat invoice on the basis percentage of overhead expenses to the total expenses. Thus, the total expenses would include expenses of other units engaged exclusively in the manufacture of exempted goods, which is in clear violation of the condition of Rule 7 (b) of Cenvat Credit Rules - prima facie there is violation of condition of Rule 7 of the said Rules. In our considered view, the adjudicating authority rightly proceeded on the basis that in this case, ISD should be distributed based on the template of sale revenue of individual unit, when other units are exclusively exempted unit.
Prima facie, there is no material available that the method of distribution of service tax credit was known to the department - The applicant failed to make out a prima facie case for waiver of predeposit of entire amount of duty along with interest and penalty - Conditional stay granted.
-
2014 (2) TMI 822
Interest demand - Reversal of CENVAT Credit under Rule 3(5) of the Cenvat Credit Rules, 2004 - CENVAT Credit taken on such inputs was not reversed at the time of removal of inputs as such, which resulted in short reversal of CENVAT Credit - Recovery of interest under Rule 14 of the Cenvat credit Rules, 2004 read with Circular No. 897/17/2009-CX dated 3.9.2009 - Held that:- provision of limitation are applicable to the recovery of interest - where the credit has not been utilized, the same would not attract the interest provisions - Following decision of Hindustan Insecticiedes Ltd. Vs. CCE, Ltu [2013 (8) TMI 225 - DELHI HIGH COURT], CCE & ST, Bangalore Vs. Bill Forge Pvt. Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT] whereas said decision was passed after considering the decision of Union of India Vs. Ind-Swift Laboratories Ltd. [2011 (2) TMI 6 - Supreme Court] - Decided in favour of assessee.
-
2014 (2) TMI 821
Remission of duty upon destruction of final product - Whether the manufacturer is required to reverse the Cenvat Credit on the inputs used in manufacturing such final product - Held that:- destruction of goods due to natural cause of accident, the inputs can be considered to have been put to intended use for manufacture of final product. Therefore, there is no requirement to reverse the credit of inputs which have gone into manufacture of final product - Following decision of Grasim Industries vs. CCE Indore [2006 (8) TMI 69 - CESTAT,NEW DELHI] and CCE Ahmedabad vs. Intas Pharmaceuticals Ltd. [2013 (4) TMI 532 - GUJARAT HIGH COURT] - Decided in favour of assessee.
-
2014 (2) TMI 820
Eligibility to CENVAT Credit - Whether the appellant would be eligible for Cenvat credit of service tax paid on the premium for Group Insurance Policy provided by the appellant to their workers - Interest under Rule 15 - Held that:- Cenvat credit in respect of Medical Insurance Policy provided by the Appellant to their employees is sought to be denied only on the ground that the same has no nexus with the manufacture of final product and is not an input service. In the show cause notice, there is no allegation that the medical insurance cover also includes the family members of the employees and for this reason the Cenvat credit would not be admissible - prima facie, it is not disputed that the entire cost of Medical Insurance Policy is included in the cost of production of the goods and for this reason also, the Cenvat credit would be admissible - appellant have a prima facie case in their favour. The requirement of pre-deposit of Cenvat credit demand, interest thereon and penalty , therefore, is waived for hearing of the appeal and recovery thereof is stayed till the disposal of the appeal - Stay granted.
-
2014 (2) TMI 819
Setting aside of penalty under Rule 209A of Central Excise Rules, 1994 for non confiscation of goods - demand of duty with interest and penalty was confirmed earlier - Held that:- nowhere in the show-cause notice nor in the adjudication order, proposal for confiscation of the impugned goods has been made. Without any proposal for confiscation, penalty under Rule 209A of the Central Excise Rules, 1944 is not imposable. - order of penalty set aside - Decided in favor of assessee.
-
2014 (2) TMI 818
Waiver of pre deposit - clandestine clearance of M.S. ingots - Imposition of equal penalty - Purchase the raw materials in the name of the Applicant No.(1) - Credit taken on purchases - Held that:- Applicant No.(1) has taken the Central Excise Registration for manufacture of excisable goods. They are also furnishing various returns to the Department in respect of excisable goods manufactured from their said registered premises. CENVAT Credit was also availed by them. We also find that on 12.06.2008, the Officers of Bolpur Headquarters (Anti-Evasion) took physical stock in the factory of the Applicant No.(1) and detected shortage of 1036.427 MT of M.S. Ingots. Shri Ashok admitted the shortage and clarified that some clearances were made by them without proper accounting and accepting the duty liability of such shortage quantity, he made an advance deposit of Rs.36.00 lakh in nine post-dated cheques. In these circumstances, they cannot take a plea that the duty liability in respect of clearances without payment of duty for the impugned period, they were not liable to pay the same - Applicants could not be able to make out a prima facie case for full waiver of the predeposit of the dues adjudged - Conditional stay granted.
-
2014 (2) TMI 817
Eligibility to CENVAT Credit - Assessee took Cenvat credit of duty paid on the capital goods used for setting up plant for generating electricity - about 87% of the electricity generated by the plant was sold to TNEB and only about 13% was used captively by the factory producing sugar and molasses - Therefore, Revenue denied CENVAT Credit - Held that:- order has not considered all the submissions made by the appellant with regard to eligibility of Cenvat Credit on capital goods and input services as specified in Rule 6 (4) and Rule 6(5) of the Cenvat Credit Rules. Therefore, we set aside the impugned order and remit the matter back to the adjudicating authority for fresh consideration, keeping all issues open - Decided in favour of assessee.
-
2014 (2) TMI 816
Waiver of predeposit of duty - Imposition of equal penalty u/s 11AC - Determination of assessable value of goods - Inclusion of freight value - Held that:- It is the claim of the Revenue that even though certain quantities of goods were sold on ex-works basis through railways but in fact, the same were delivered from the Branch Offices and hence, the railway freight charges incurred in transferring the goods from the factory to their Branch Offices, should be included in the value of such goods. On a preliminary analysis of the evidences adduced by both sides, prima-facie, we find that the customers take constructive delivery of the goods at their factory of the Applicant as is evident from the Internal Price Circular of the Applicant, which indicates two channels of sale; one from the factory gate and the other one from the stockyard of the Applicant.
Prima-facie, thus the Applicant could able to show that besides stockyard sales, there were also ex-works sale, but in relation to ex-works sales, the freight charges were incurredinitially by the Applicant in transferring the goods from the factory to a place other than the factory, where from their customer take delivery of the goods, but the freight charges were ultimately borne by the customer, which was a condition of sale.
Freight charges incurred on behalf of the buyers cannot be included in the assessable value of goods sold on Ex-works basis. In these circumstances, the Applicants are able to make out a prima-facie case for waiver of all dues adjudged, accordingly, pre-deposit of all dues adjudged is waived andits recovery stayed during pendency of the appeal - Stay granted.
-
2014 (2) TMI 777
Interest on delayed payment - Rule 20 of CER, 2002 - Warehousing provisions - Whether the appellants are required to pay interest on this delayed payment of duty or not - Held that:- there being no Circular issued by the Board, specifying any interest rate, as envisaged in Rule 20(2), the interest cannot be confirmed against them in terms of Section 11AB. The said Rule is a complete code in itself and provides facility for warehousing, subject to the condition including interest, specified by the Board. Inasmuch as the Board has only specified the recovery of duty of excise, no interest can be demanded from them - Matter remanded back - Decided in favour of assessee.
-
2014 (2) TMI 775
Rejection of rebate claim - original and duplicate copy of ARE1 for the goods exported not submitted - original and duplicate copy of ARE1 lost in transit - photo copies of the requisite original and duplicate ARE1 of the goods submitted - Held that:- there are other decisions of the Government of India on identical fact situation, where the rebate claim has been disallowed. Nevertheless there must be an attempt to reconcile the differing views. Non consideration of the decision which appear to cover the petitioner's case does indicate a flaw in the decision making process warranting interfere in our writ jurisdiction - we quash and set aside the impugned order dated 7 September 2012 passed by the Government of India in revision under Section 35EE of the Act and restore the issue to the file of Government of India in revision for fresh disposal - Decided in favour of assessee.
-
2014 (2) TMI 774
Waiver of pre-deposit - Extended period of limitation - Excisability of structures - manufacturing aluminum sliding windows & aluminum doors - SSI exemption - Items were directly comes to the site where the structure was erected and glass was fixed - Applicant contended that aluminum assembly of Glazing Systems, the glazing is of glass which comes into existence at site and it is immovable property - The appellant also submitted that in any case credit to the extent of an amount of ₹ 28.42 lacs which they could have taken in respect of duty paid on the inputs but not taken as according to them the system was not excisable goods. - Tribunal ordered pre-deposit of ₹ 1.23 crores after granting benefit of extended period of limitation.
Held that:- During the hearing on a specific query we were informed that the amount of ₹ 28.42 lacs paid on inputs has not been taken as cenvat credit. This was to avail benefit of a composition scheme in respect of service tax payable on works contract has as one of its conditions not to take cenvat credit on inputs. Therefore, permitting the appellant to take cenvat credit would mean they are disentitled to the benefit of service tax composition scheme which has already been availed. Therefore, the credit of ₹ 28.42 lacs cannot at this stage be taken into consideration for the purposes of determining the amounts to be deposited for the purpose of pre deposit. All these issues would be gone into at the final hearing of the appeal.
No reason at this stage to interfere with the order of the Tribunal. - the time to deposit the further sum of ₹ 50 lacs as directed by the impugned order for the purpose of hearing the appellant's appeal on merits is extended - Decided partly in favour of assessee.
-
2014 (2) TMI 772
Power to levy penalty for violation of CENVAT Credit Rules - Challenge to the validity of rule 13(2) of CCR 2002 and Rule 15(2) of CCR, 2004 as ultra-virus to Central Excise Act, 1994 - Delegated legislation - appellant were using non duty paid scrap for manufacturing the final product - duty paying documents obtained for availing credit without receiving Inputs - Held that:- In terms of section 37(1) and 37(4) of the Central Excise Act, 1944, the rule making authority had ample powers not only for providing for mechanism for collection of CENVAT and matters connected therewith but also to provide for penalties for breach of payment of such duty.
We do not find that the rule making authority flows only from sub-section(1) of section 37 and can therefore, be stated to be general in nature without clothing the rule making authority with the power to levying penalty. As noticed section 11AC provides for penalty in case of unpaid duty by reason of fraud or collusion or any wilful mis-statement, etc., Such duty in terms of CENVAT Credit Rules, 2004, would be the central value added tax - we do not find any substance in the challenge raised by the petitioner to the rule 13(2) of the CENVAT Credit Rules, 2002 and rule 15(2) of the CENVAT Credit Rules, 2004 - Decided against Applicant.
-
2014 (2) TMI 771
Maintainability of appeal - Non appearance of parties - Notice not served - Notice returned as not known - Tribunal dismissed appeal assuming that they are not interested in pursuing this appeal - Held that:- notice which was remitted to the assessee was returned undelivered with remarks of postal authority as "Not Known". From this, the Tribunal inferred that the appellant has changed its address without an intimation to the Tribunal and consequently the appellant appeared to be not interested in pursuing the appeal. As a matter of fact, the order of the Tribunal, as was urged before the Court, was served on the same address. The provisions of Section 37C(1) of the Act were clearly not followed - there was no valid service upon the appellant - Since, on the admitted facts as they stand, it is clear that there was no valid service on the assessee, it is not necessary for the Court to relegate the assessee to the remedy provided under the Central Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 - Decided in favour of assessee.
-
2014 (2) TMI 770
Invocation of extended period of limitation - Section 11A (1) of the Central Excise Act, 1944 - Held that:- if a scrutiny had been made by the Range Officer of the ER-1 returns, that would have revealed that the assessee had cleared its MS tanks and radiators to the owning company for the manufacture of transformers. This indicated that there was no fraud, collusion, misstatement or suppression of facts. Besides, since the situation was revenue neutral, no intent to evade the payment of duty could be ascribed to the assessee. Once there was no intent to evade the payment of duty, the Tribunal was justified in coming to the conclusion that the extended period of limitation under the proviso to Section 11A (1) of the Act would not be attracted. Hence, no substantial question of law arises in the appeal - Decided against Revenue.
-
2014 (2) TMI 769
Disllowance of CENVAT Credit - Cenvat Credit on input services availed by the Job Worker availing exemption under Notf. No. 214/ 86-CE dated 25.03.1986 - Held that:- credit availed by the job worker cannot be denied where inputs were used in the manufacture of goods which were cleared without payment of duty under Notification No. 214/ 86-CE - appellants were entitled to Modvat credit of duty paid on inputs procured on their own account & used in the manufacture of job-worked goods exempted under notification number 214/ 86 CE.
CENVAT Credit of input services was admissible to the job worker clearing goods to principal manufacturer under notification number 214/ 86 CE. In view of the above, we hold that the provisions of Rule 6(1) of the CENVAT Credit Rules, 2004 cannot be invoked for denying CENVAT Credit of input services used by the appellant factory for manufacture of job-worked goods under Notf. No. 214/ 86 CE - job work activity of the appellant is amounting to manufacture and is not one of providing any ‘service’. The appellant factory cannot be both a ‘manufacturer’ and a ‘service provider’ at the same time in relation to a particular activity. It is settled proposition in central excise matters that a job worker is a ‘manufacturer’ and hence the appellant factory cannot be treated as a service provider rendering exempted/ non-taxable service for the manufacturing activity - Decided in favour of assessee.
-
2014 (2) TMI 768
Valuation of goods - inclusion of bought-out item - Whether the value of bought-out LCC (Line Circuit Card) supplied separately as traded goods, along with the EPABX systems, is includible in the assessable value of the EPABX systems for the purpose of charging central excise duty - Held that:- EPABX systems were sold without LCCs thereby proving that the EPABX without LCCs was fully manufactured goods and that the supply of LCCs (bought out item) was optional depending upon the requirement of the customers. The LCC is not fitted into the EPABX system at the time of clearance from the appellant s factory, but the same is supplied separately from their trading unit situated within separately demarcated premises.
In the case of National Radio and Electronics Co. Limited Vs. Collector of Central Excise, Bombay [1995 (1) TMI 158 - CEGAT, NEW DELHI] it was held that, if the bought out items are only optional and if there are instances where the item manufactured by the assessee was supplied without these bought out items as contended on behalf of the party then the value of such items is to be excluded.
Further following the decision of Webel Telecommunications (I) Limited Vs. Collector of Central Excise, Calcutta (1987 (10) TMI 151 - CEGAT, NEW DELHI) and Diamond Clock Manufacturing Co. Limited Vs. CCE, Pune (1987 (12) TMI 159 - CEGAT, NEW DELHI), Decided in favor of assessee.
-
2014 (2) TMI 767
Rectification for Mistake - case law relied upon by the learned Counsel was not considered - Held that:- In para 7 of the order it is clearly mentioned that we have gone through various case laws cited by the appellants. Hence, the argument “while passing the order the Bench has not considered the case laws relied upon by the appellant” is not correct - Rectification denied.
-
2014 (2) TMI 766
CENVAT Credit - Duty paying document - Additional CVD paid on TR-6 Challan being differential duty - Held that:- A combined reading of Rule 11 (3), Rule 11 (7) of Central Excise Rules 2002 and Rule 9 (a)(ii) of the CENVAT Credit Rules, 2004 will convey that in case of sale of imported goods by a first stage dealer or second stage dealer also the credit is admissible on the basis of such a sale invoice. A similar situation will exist for supplementary invoice issued by a first stage dealer/second stage dealer under Rule 9 (1) (b) of CENVAT Credit Rules, 2004. The word ‘Challan’ and ‘any other similar document’ evidencing payment of additional CVD, mentioned in Explanation to Rule 9 (1)(B), will thus mean those situations where duty is paid under a ‘challan’ by an importer/dealer of imported goods who has sold the cenvatable goods.
In the present facts and conditions of the case, it has to be held that payment of differential duty was paid as a result of re-assessments with respect to imported capital goods as per law laid down by Delhi CESTAT in the case of Birla Jute Manufacturing Co. Ltd Vs CC Calcutta (1983 (8) TMI 253 - CEGAT, NEW DELHI). In Para-7 of this judgment, inter alia, it was held that refund claims and demands under Section 27 & Section 28 of the Customs Act, 1962 do involve re-assessment of the duty originally assessed.
When additional duty is paid under re-assessment or on being pointed out by the Revenue then the credit of such duty paid will be admissible as CENVAT Credit to the appellant under Rule 9(1)(c) of the CENVAT Credit Rules, 2004. In view of the above settled position of law, the credit was rightly availed by the appellant and accordingly the appeal filed by the appellant is required to be allowed. Once on merits the issue is decided in favour of the appellant, there is no question of imposing penalty and confiscation of capital goods as adjudicated by the lower authority - Decided in favour of assessee.
........
|
