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Central Excise - Case Laws
Showing 1 to 20 of 315 Records
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2014 (3) TMI 1087
CENVAT Credit - input - Furnace Oil used for generating steam for manufacturing Cakes and Pastries - demand barred by time limitation - Held that: - the respondent informed to the department on 07.01.2003 through a letter that they are opting for CENVAT credit facility on furnace oil which in turn used for the manufacture of excisable as well as non-excisable items. When these facts are in the knowledge of the department, SCN dated 16.06.2005 for the period January 2003 to May 2004 is barred by limitation as there is no suppression of facts on the part of the respondent - appeal dismissed - decided against Revenue.
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2014 (3) TMI 1084
CENVAT credit - manufacture of cement - denial on the ground that the inputs were exempted under N/N. 6/2006-C.E., dated 1-3-2006 and the manufacture, of the same should not have paid the duty on the said part - Held that: - Cenvat credit of duty “paid” is available to the recipient of the inputs. The assessment done at the input supplier end cannot be re-opened at the input recipient end - credit allowed - decided in favor of assessee.
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2014 (3) TMI 1078
Application to settle the case before settlement commission - Clandestine removal - MS Ingots - contravention of provisions of Rules 4, 6, 8, 10, 11 and 12 of the CER, 1944 read with Sections 91 and 93 of the FA, 2001 and Sections 136 and 138 of the FA, 2007 - applicability of the provisions of Section 32-O(1)(i) - whether the application of the co-applicant can be settled when the main applicant is not eligible to come before the Settlement Commission? - Held that: - The provisions of Section 32-O(1)(i) are clear. The bar against filing of subsequent application under Section 32-O(1)(i) is attracted in this case to make the application of the applicant liable to dismissal. The Bench has no jurisdiction to entertain such an application as it is barred by Section 32-O(1)(i) of the Central Excise Act, 1944 and is liable to dismissal, without going into the merits of the case. The application of the co-applicant cannot be settled when the main applicant is not eligible to come before the Settlement Commission. In terms of Section 32-O(1)(i) of the Central Excise Act, 1944, without going into the merits of the case, both the applications are outrightly rejected and dismissed - decided against applicant.
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2014 (3) TMI 1067
Assessable value in case of job-worker - the decision in the case of CCE, Pondicherry Versus Ravishankar Industries Pvt. Ltd. [2013 (8) TMI 152 - CESTAT CHENNAI] contested - Held that: - civil appeals are dismissed - However, the question of law is kept open.
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2014 (3) TMI 1066
Recovery notices - attaching the bank accounts - Held that:- Apart from the fact that the petitioner-company was not put on notice by the Revenue prior to the attachment of its bank accounts under the individual recovery notices dated 5-3-2014 addressed to the banks, the said action is directly in the teeth of the direction of this Court in Writ Petition [2013 (3) TMI 717 - ANDHRA PRADESH HIGH COURT] whereby, the Revenue was restrained from initiating coercive steps for recovery of the amounts due under the order-in-original dated 28-6-2011 till the disposal of the stay application by the CESTAT, Bangalore.
It is not in dispute that the stay application is still pending disposal. Therefore, notwithstanding the liberty given by the CESTAT under its order dated 18-12-2013, the Revenue could not have resorted to any coercive steps without first seeking the leave of this Court by way of modification of the order passed in [2013 (3) TMI 717 - ANDHRA PRADESH HIGH COURT]. The impugned recovery notices dated 5-3-2014 are thus wholly unsustainable and are accordingly set aside. The petitioner-company shall proceed with the hearing of the stay application on 27-3-2014 before the CESTAT without seeking further adjournment.
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2014 (3) TMI 1061
The grievance of the petitioner is that this demand has been raised despite the fact that no Committee has been constituted to decide whether the assessee has, in fact, complied with the terms of the notifications issued by the Central Government under Section 72 of the Finance Act, 2011. - Held that:- In view of the fact that the decision of this Court asking the Investment Appraisal Committee to verify the claims of the investors has been upheld by the Apex Court, the impugned demand notices shall be kept in abeyance till the Investment Appraisal Committee give its report. In case, the committee find that any of the investments claimed by the petitioners are entitled to the benefits, then obviously fresh notices will have to be issued.
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2014 (3) TMI 1054
Reversal of Cenvat Credit - common inputs - Whether Rule 6(3)(b) is mandatory where separate inventory was not maintained - Reversal of credit @8% as per the Rule 6(3)(b) or proportionate reversal of the credit - manufacturing of dutiable and exempted products - Held that:- where the credit taken has been reversed on inputs utilised in manufacturing of the final exempted product stand deleted in the account of the assessee, it cannot be said that the assessee has taken credit for the duty paid on the inputs utilised in the manufacture of the final product, which is exempted - No demand - decided against the revenue.
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2014 (3) TMI 1053
Waiver of predeposit of MODVAT along with interest - Held that:- Commissioner (Appeals) on earlier occasion remanded the matter to the adjudicating authority for verification of the original copies of the invoices but the applicant failed to produce the original copies for verification. A plea was taken by the applicant before the Commissioner (Appeals) that on earlier occasion they produced the original copies of invoices before the Commissioner (Appeals) which is negated by the Commissioner (Appeals) in the impugned order with detailed finding. Prima facie, the applicant failed to produce the original invoices. The learned counsel submittion that they have placed the duplicate copies of invoices which was not considered by the lower authorities would be looked into at the time of hearing the appeals at length. In view of that the applicant is directed to make predeposit of ₹ 3,00,000/- (Rupees three lakhs only) within a period of six weeks and report compliance on 23.5.2014. Upon such deposit, predeposit of the balance dues stands waived and recovery thereof stayed during the pendency of the appeals.
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2014 (3) TMI 1051
Whether the figure mentioned in the impugned order is correct or not - while quantifying the amount of waiver of pre-deposit, the learned Tribunal has taken a mistaken and incorrect figure - Held that:- to make the amount of deposit in a round figure, it would be ₹ 3 crores instead of ₹ 3.4 crores. Therefore, learned Tribunal has rightly exercised its discretion in asking to make the deposit. - Appeal disposed of
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2014 (3) TMI 1049
Demand of duty and imposition of penalty - Failed to produce original and duplicate copies of AREs-1 duly endorsed by the customs as a proof of export - Export consignment cleared for which proof of exemption was not allegedly submitted in time and excisable goods were removed without payment of duty under cover of invalid letter of undertaking (LUT) - Held that:- insistence on the proof of exports is understood. However, the insistence on production of ARE’s and terming it as a primary one has not been supported in law. Mr. Shah is therefore justified in criticizing the revisional authority on the ground that the authority was oblivious of execution of other documents and particularly in respect of the clearance of goods under bond/LUT. If there is adequate proof of exports then, non-production of ARE-1 would not result in the allegations being proved and the demand being confirmed. There is no question of penalty being imposed in such a case as well and without verification of the records. The penalty could have been imposed had there been absolutely no record or no proof of any export. The approach of the revisional authority therefore, is not in conformity with law as laid down in UM Cables Limited v. Union of India [2013 (5) TMI 459 - BOMBAY HIGH COURT].
In the present case, the fundamental issue has not been examined and the order suffers from a patent error. It is also suffering from clear perversity and in not referring to the contents of the documents which are forming part of the two letters. If the two letters they point towards Bill of Lading and equally the commercial invoice, shipping bill. Mr. Shah would urge that the confirmation of payment by buyers is on record. Then, the Revisional authority should have expressed an opinion thereon and whether that has any impact on the claim made by the Department. That having not done, the Revisional authority failed to exercise its jurisdiction vested in it in law. The Revisional order deserves to be quashed and set aside. - Decided in favour of petitioner by restoring revision application
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2014 (3) TMI 1047
Suppression of production of ingots by showing burning loss - Held that:- Allegations for clandestine removal cannot be upheld on the basis of excess wastage/loss - Decided against revenue.
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2014 (3) TMI 1046
Negligence and complete lack of devotion to duty - applicability of Rule-9 of the CCS(Pension) Rules, 1972 - Held that:- From perusal of provision of Rule-9 as well as findings of the disciplinary authority, it is clear that the applicant has been found guilty on the ground of negligence and complete lack of devotion to duty. Thus, the allegation of the applicant that the grounds taken in his report were not considered by the disciplinary authority while imposing the punishment is not valid as the disciplinary authority while coming into conclusion has elaborately discussed the IO's report, disagreement note as well as contention of the applicant.
As this Tribunal cannot sit as a appellate forum on the fact findings of the disciplinary authority , we cannot interfere with the findings of the disciplinary authority as per decision of Hon'ble Apex Court in the case of Nand Kishore Prasad Vs. State of Bihar reported in (1978 (4) TMI 235 - SUPREME COURT) wherein it is held that standard of proof required in disciplinary proceeding is preponderance of probability and not proof beyond reasonable doubt as in a criminal case. In the instant case, the disciplinary authority while coming into conclusion has given his reasoning and raised reasonable doubt and thereafter come into conclusion that though there may not be any ulterior motive but there is clear negligence and devotion of duty on the part of the applicant. Thus, the findings of the disciplinary authority cannot be termed as perverse. Accordingly, we do not find any reason to interfere with the decision of the Disciplinary Authority.
With regard to interest on the amount of gratuity, leave encashment and commutation of pension, which was due at the time of retirement, we are of the opinion that as per Rule-9 , the President reserves the right of withholding pension or gratuity or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part , if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service. As in the instant case, the President has only imposed penalty of 30% of monthly pension for five years under Rule-9, but no adverse order was passed with regard to gratuity, leave encashment etc., we hold that the gratuity and leave encashment are due from the date the applicant was allowed to superannuate and if any payment is made thereafter is liable for interest. Thus, the applicant is entitled for 8% interest on the due amount of gratuity and leave encashment from the date of superannuation till the date of final payment. However, interest of commutation of pension is not admissible as it has to be calculated on the basis of final order.
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2014 (3) TMI 1042
Rebate claims rejected - admissibility of rebate claim - Held that:- The lower authorities have rightly held that it was not possible to confirm the payment of duty in these cases. The fundamental requirement for determining admissibility of rebate claim is that export of duty paid goods is proved beyond doubt. In this case the duty paid nature of goods is not proved and therefore rebate claim are rightly held inadmissible to the applicants under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. Government does not find any infirmity in the impugned orders-in-appeal and therefore upholds the same. - Decided against assessee
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2014 (3) TMI 1041
Rebate claim rejected - Held that:- Exported goods cannot be correlated with the duty paid goods cleared from factory of manufacture. The applicant contended that they have cleared certain quantity of goods for home clearances and remaining quantity for exports. However, the applicant failed to submit a detailed co-relation chart duly supported by documentary evidences showing that quantity of goods cleared for home consumption and export. They have also failed to submit the legible copies of ARE-1, shipping bill, bill of lading, CB Invoice, commercial invoice application filed by CCE, Bangalore seeking extension of time to export goods, and permission granted by CCE, Bangalore though they had promised to furnish the same in a week’s time. Further, the enclosure of verification report of Range Superintendent of Taloja Range is not properly signed by authorized signatory. The stock verification report enclosure having detail of stock is also not signed by Central Excise Superintendent. Under such circumstances, Government finds that the applicant has failed to establish that the duty paid goods cleared from factory of manufacturer were have actually been exported in impugned case. In view of above, Government concurs with detailed findings of Commissioner (Appeals) and hence, finds no reason to interfere with the same.
Government finds that rebate of central excise duty is a beneficial legislation and the same is subjected to fulfilment of certain condition. Government finds support from the observations of Hon’ble Supreme Court in the case of M/s. ITC Ltd. v. CCE reported as [2004 (9) TMI 103 - SUPREME COURT OF INDIA ], and M/s. Paper Products v. CCE reported as [1999 (8) TMI 70 - SUPREME COURT OF INDIA ] that the simple and plain meaning of the wordings of statute are to be strictly adhered to. - Decided against assessee
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2014 (3) TMI 1040
Rebate claim rejected - Held that:- Government notes that as per provisions of Rule 18 of Central Excise Rules, 2002 and Notification No. 19/2004-C.E. (N.T.), dated 6-7-2004 where any goods exported, the rebate of duty paid on excisable goods shall be granted subject to such conditions or limitation specified on the notification. In terms of condition (a) of said Notification, dated 6-9-2004 excisable goods shall be exported after payment of duty directly from a factory or warehouse except as otherwise permitted by C.B.E. & C. The Central Board of Excise and customs vide Circular No. 294/10/97-CX, dated 30-1-1997 relaxed the condition of direct export of goods from factory subject to compliance of procedure prescribed therein. The harmonious reading of these statutory provisions makes it clear that rebate shall be granted when excisable goods are exported after payment of duty. In this case it is on records that goods were exported without payment of duty. The fundamental condition for granting rebate claim is that duty paid goods are exported. In this case, this condition is not satisfied and therefore, rebate claim cannot be held admissible. Commissioner (Appeals) has erred in considering the adjustment of duty before filing of rebate claim as compliance of condition No. 2(a) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 r/w provision of Rule 18 of Central Excise Rules, 2002. In view of above said statutory position the said rebate claims of ₹ 91,34,616/- pertaining to ARE-1 Nos. 29/2009-10 and 30/2009-10 both, dated 17-3-2010 are not admissible to the respondents. - Decided against assessee
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2014 (3) TMI 1039
Pre-deposit of duty - interest and addition penalty of identical amount stands imposed - invoking the longer period of limitation - whether printing and lamination on plastic film amounts to manufacture? - Held that:- The activity of printing and plastic coating does not amount to manufacture. During the course of arguments, it is asked from the learned D.R. regarding the use of plain poly films rolls. The query was answered that the same can be used as packing material. In this case, as per the learned AR there is no change in the use of goods after printing and lamination. Therefore, the issue whether the activity of printing and lamination amounts to manufacture or not is to be considered at the time of final hearing as there was contrary decisions. I do agree with the contention of the learned Advocate that when there are contrary decisions on the issue, whether the activity of printing/lamination amounts to manufacture or not, relying on the decision of this Tribunal in the case of Maharashtra Seamless stay is to be granted. Therefore, the applicant has made out a case of waiver of pre-deposit but as learned Counsel for the applicant at the time of hearing their stay application before the referral Bench has offered for making further deposit of ₹ 20 lakhs in addition to ₹ 40 lakhs already deposited, therefore, I agree with the view of learned Member (Judicial) directing the applicant to make pre-deposit of ₹ 20 lakhs
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2014 (3) TMI 1034
CENVAT Credit disallowed - CREDIT availed on Goods Transport Agency output services for the period May, 2005 to March, 06 which the appellant had availed after taking 75% abatement under Notification No. 32/2004-ST read with Notification No. 12/2003-ST as amended - taking of credit on the TR-6 challan - Held that:- We hold that the appellant have rightly availed CENVAT Credit being an amount paid towards Goods Transport Agency service. We further hold that the appellant is entitled to CENVAT Credit taken on the basis of TR-6 challan, which is a notified documents for availing credit and being a procedural issue, will apply retrospectively. We further hold that the input service like Courier service, Xerox service and rent-a-cab operator service are input services in relation to business of the appellant as a manufacturer and service provider and as such the appellant has rightly availed the CENVAT Credit on the input. Thus, the impugned order is set aside. The appeal is allowed with consequential benefit.
The appellant has admittedly paid 50% of the impugned demand by way of pre-deposit. As such we direct the adjudicating authority to refund the amount within a period of two months from production of a copy of this order with interest as per rule. - Decided in favour of assessee
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2014 (3) TMI 1033
Demand of erroneous refund - pre-deposit of duty demand, interest and penalty - Held that:- On going through the Chart given in Para 7 of the show cause notice regarding month-wise percentage of duty payment through PLA, it is seen that though during most of the months, the same has been varying from 38% to 41%, in some months - March, 2011, June, 2011 and March, 2012, the same was 2% and 0%. Prima facie, from this data, it is clear that even if during certain months, lesser amount of duty was paid through Cenvat credit resulting in higher payment of duty through PLA and higher quantum of exemption, in subsequent months, it got compensated by much higher percentage of duty payment through cenvat credit varying from 98% to 100% and during those months, the appellant have availed almost negligible exemption. In view of this, this has to be treated as revenue neutral case and as such, there is merit in the appellant’s plea that there was no intention to avail higher quantum of exemption. As regards, duty demand of ₹ 18,18,507/- on the value of the corrugated boxes applied by M/s. Vishal Industries free of charges, we are of prima facie view that since tin containers were marketable as such, the cost of corrugated boxes supplied by M/s. Vishal Industries would not be includible in the assessable value. Thus, on both the counts, M/s. Vinayak Industries have prima facie case in their favour.
As regards, M/s. Vishal Industries, penalty has been imposed on them under Rule 26(1) of the Central Excise Rules under which penalty is imposable on a person, who deals with the excisable goods in the manner specified in this Rule knowing that the same were liable for confiscation. In this case, none of the offences to which Rule 26(1) of the Rules applies, had been committed by M/s. Vishal Industries. Therefore, we are of the prima facie view that imposition of penalty on them under Rule 26(1) of the Central Excise Rules, 2004 was not called for and as such, M/s. Vishal Industries also have strong prima facie case in their favour.
In view of the above discussion, the requirement of pre-deposit of duty demand, interest and penalty by M/s. Vishal Industries and the requirement of pre-deposit of penalty by M/s. Vishal Industries is waived for hearing of their appeals and recovery thereof is stayed till the disposal of the appeals. Stay applications are allowed.
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2014 (3) TMI 1002
Denial of refund claim - Petitioner Company had made a request for clearance of the consignment as “returned consignment” without payment of Customs Duty, the Customs Authority insisted on treating the consignment as “fresh import” - application for rebate had initially been returned to the petitioners under cover of a letter dated 26th August, 2011, whereas customs duty was paid on 6th September, 2011 - Held that:- Petitioners claimed exemption under notification No. 94/96 CUS dated 16th December, 1996. For availing benefit of the said notification, the Assistant Commissioner had to be satisfied that the goods which were imported were the same goods that had earlier been exported and further the importer had paid customs duty equal to the export benefit availed at the time of export of the concerned goods. - Since export of goods had been made along with claim for rebate of Cenvat duty of ₹ 92,391/-, and the importer could not prove that rebate had not been granted by the Central Excise authorities, the amount along with interest was charged as customs duty. The goods were released on payment of such customs duty - May be, at the material time the petitioners could not prove non-receipt of the claim for rebate and there was urgency in clearance of goods for which the petitioner paid the amount of the rebate claimed. Such payment was obviously made in the expectation that the petitioner would get the claim. If the claim had not been disbursed, there could be no question of realization of customs duty and customs duty, if realized would necessarily have to be refunded.
Imported consignment was assessed at nil customs duty, accepting the contention of the petitioners that the same articles had been sent back. However, the amount of the refund claimed was realized by the customs authorities before allowing clearance of the consignment. May be, the petitioners were themselves negligent in not drawing the attention of the customs authorities to the return of their claim application. Perhaps, the petitioner should have objected to the realization of the amount refund of refund claimed, on the ground that the claim application had been returned. - If no customs duty was in fact payable by the petitioners, but duty realized on the premises that the petitioners had claimed rebate, the respondent customs authorities would be obliged to refund the amount realized through mistake on being satisfied that no rebate of Central Excise duty had actually been allowed. - refund amount shall positively be released within two months from the date of communication of this judgment and order. - Decided in favour of assessee.
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2014 (3) TMI 990
Waiver of pre deposit - Quantum of pre deposit - Held that:- appellants have not been heard on merits as the appellants could not comply with the requirement of ₹ 15 lacs as a pre-deposit as directed by the Commissioner (Appeals) and upheld by the Tribunal in the present case. According to the learned counsel, the amount of ₹ 15 lacs could not be deposited due to financial constraints and was also excessive. - sum of ₹ 8 lacs be deposited as a condition precedent for hearing of the appeal by the Commissioner (Appeals) which would meet the ends of justice. - Decided partly in favour of assessee.
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