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Central Excise - Case Laws
Showing 301 to 315 of 315 Records
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2014 (3) TMI 45 - CESTAT MUMBAI
Utilization of accumulated credit of AED (T&TA) - whether accumulated credit of AED (T&TA) can be cross utilized for payment of duty relating to AED(GSI) and for payment of basic excise duty during January 2003 to May 2003. - Held that:- appellants could have utilised Cenvat credit of AED (T &TA) only towards payment of the same kind of duty of excise i.e., AED (T &TA) in terms of Rule 3(6)(b) of the Cenvat Credit Rules, 2001. - appellant's appeal in respect of cross-utilization of credit of AED(T&TA) for payment of AED(GSI) is rejected. The appellant is directed to pay the said amount in cash to Revenue. The appellant can take credit of the said amount of AED(T&TA) and can use it, if possible, for purpose allowed under the law.
The appellant will pay the total amount including payment in cash along with interest and penalty. The appellant will be free to take credit and utilize, if possible, and in accordance with law. - Decided against the appellant.
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2014 (3) TMI 44 - CESTAT AHMEDABAD
Valuation - Job Worker versus Related person - Manufacturing confectionary items on behalf of M/s. ITC Limited at their factory premises as a job worker. - whether valuation of the goods manufactured by the appellant for M/s ITC is required to be made under Rule 9 of the Central Excise Valuation (Determination of price of Excisable Goods) Rules, 2000 read with the provision of Sec. 4(3)(b)(iv) of the Central Excise Act 1944 by treating the appellant and M/s ITC as related persons. - Held that:- though mutuality of interest is not established but it has been correctly held by the adjudicating authority that the judgment of Hon’ble Supreme Court in the case of M/s Ujagar Prints (1988 (11) TMI 106 - SUPREME COURT OF INDIA) cannot be made applicable to the present proceedings because the present case is clearly distinguishable from the facts and the principles laid down by Apex Court for valuation of the goods in case of manufacture of goods on job work basis.
Appellant will be interested in getting work from M/s ITC as he is getting more financial gains from M/s ITC but it is not coming out anywhere in the case records as to have M/s ITC has financially gained from the appellant in the transactions. There is a clause in the agreement that M/s ITC at any time can get the work entrusted to the appellant, done from others. Therefore, the provisions of Rule 9 cannot be pressed into service in the present proceeding.
The valuation of goods is required to be decided by the adjudication authority under the provisions of Rule 11 of the Central Excise Valuation (Determination of Price of Excisable goods) Rules, 2000 applicable at the relevant time. - matter remanded back to decide accordingly.
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2014 (3) TMI 43 - CESTAT MUMBAI
Denial of Input service credit - Services utilized in the residential colonies - Qualification as input service as per sub-rule 2(l) of the Cenvat Credit Rules, 2004 - Invocation of extended period of limitation - Held that:- input service credit taken on the services provided in the residential colony is not available. Therefore, the issue is no more res integra. Accordingly, the demands are confirmed, but I find that the show cause notice has been issued by invoking extended period of limitation - demand for normal period of limitation is confirmed. Further, as the extended period is not invokable, therefore mandatory under Section 11AC is waived - Decided in favour of assessee.
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2014 (3) TMI 42 - SUPREME COURT
Valuation of goods - Demand of duty - Period of Limitation - Suppression of facts - Inclusion of sales tax collected in the assessable value of goods - Whether the assessee was entitled to claim deduction under Section 4(4)(d)(ii) of the Act in respect of full amount of sales tax payable at the rate of 2% - Held that:- assessee has claimed that there is difference between grant of incentive and extension of benefit of exemption, and the scheme, i.e., the “Rajasthan Sales Tax Incentive Scheme 1989” does not relate to exemption but incentive. To elaborate, the assessee, under the said Scheme, is permitted to retain 75% of the sales tax collected as incentive and is liable to pay 25% to the department. 75% of the amount retained has been treated as incentive by the State Government. It is pointed out that such retention of sales tax is a deemed payment of sales tax to the State exchequer and for the said purpose reliance is placed on Circular No. 378/11/98-CX dated 12.3.1998 issued by C.B.E.C.
On perusal of the assessment orders brought on record, it is quite clear that in pursuance of the Scheme 75% of the sales tax amount was credited to the account of the State Government as payment towards sales tax by the manufacturer. On a studied scrutiny of the scheme we have no scintilla of doubt that it is a pure and simple incentive scheme, regard being had to the language employed therein. In fact, by no stretch of imagination, it can be construed as a Scheme pertaining to exemption. Thus, analysed, though 25% of sales tax is paid to the State Government, the State Government instead of giving certain amount towards industrial incentive, grants incentive in the form of retention of 75% sales tax amount by the assessee. In a case of exemption, sales tax is neither collectable nor payable and if still an assessee collects any amount on the head of sales tax, that would become the price of the goods. Therefore, an incentive scheme of the present nature has to be treated on a different footing because the sales tax is collected and a part of it is retained by the assessee towards incentive which is subject to assessment under the local sales tax law and, as a matter of fact, assessments have been accordingly framed. In this factual backdrop, it has to be held that circular entitles an assessee to claim deduction towards sales tax from the assessable value.
Unless the sales tax is actually paid to the Sales Tax Department of the State Government, no benefit towards excise duty can be given under the concept of “transaction value” under Section 4(4)(d), for it is not excludible. As is seen from the facts, 25% of the sales tax collected has been paid to the State exchequer by way of deposit. The rest of the amount has been retained by the assessee. That has to be treated as the price of the goods under the basic fundamental conception of “transaction value” as substituted with effect from 1.7.2000. Therefore, the assessee is bound to pay the excise duty on the said sum after the amended provision had brought on the statute book.
Assessees in all the appeals are entitled to get the benefit of the circular dated 12.3.1998 which protects the industrial units availing incentive scheme as there is a conceptual book adjustment of the sales tax paid to the Department. But with effect from 1.7.2000 they shall only be entitled to the benefit of the amount “actually paid” to the Department, i.e., 25%. Needless to emphasise, the set off shall operate only in respect of the amount that has been paid on the raw material and inputs on which the sales tax/ purchase tax has been paid. That being the position the adjudication by the tribunal is not sustainable. Similarly the determination by the original adjudicating authority requiring the assessees to deposit or pay the whole amount and the consequential imposition of penalty also cannot be held to be defensible. Therefore, we allow the appeals in part, set aside the orders passed by the tribunal as well as by the original adjudicating authority and remit the matters to the respective tribunals to adjudicate as far as excise duty is concerned in accordance with the principles set out hereinabove - Decided partly in favour of Revenue.
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2014 (3) TMI 41 - SUPREME COURT
Recovery of refund already allowed - duty under protest - Directions given by Central Excise & Gold (Control) Appellate Tribunal and High Court of Bombay to refund the amount along with interest - Captive consumption - Unjust enrichment - Held that:- this case hardly involves any legal issue but we feel more concerned about the hard luck of the appellant, a manufacturer of PVC Coal Conveyor Belting made from imported Nylon Yarn.
Apparently, there was no issue of captive consumption in the instant case and yet the appellant was directed to file an undertaking as stated hereinabove in the order. Being in need of money, the appellant filed an undertaking under protest, though, in our opinion, it was not necessary for the Deputy Collector, Central Excise and Customs, Aurangabad to ask for such an undertaking. Be that as it may, the said order was not challenged by anybody and therefore, it attained finality.
Amount of duty paid by the appellant had never been passed over to the purchasers and the said fact has been duly recorded by the Deputy Collector, Central Excise and Customs, Aurangabad in his order dated 5th April, 1995. The said order has attained finality as nobody challenged the said order. An undertaking, though strictly not required to be given, was given by the appellant as demanded under the aforestated order dated 5th April, 1995 and ultimately the amount had been refunded to the appellant. In our opinion, there is no question of demanding the said amount again, especially when the facts which had been disputed by the Revenue before the Tribunal had already been admitted in the proceedings which had been initiated by the Deputy Collector, Central Excise and Customs, Aurangabad in his order dated 5th April, 1995 - Decided in favour of assessee with costs.
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2014 (3) TMI 10 - DELHI HIGH COURT
Endorsement of gate passes - Whether endorsed gate passes were valid documents in terms of Rule 57G of the Central Excise Rules, 1944 - Held that:- It is evident from the above that the Central Board of Excise and Customs has issued Circular No. 600/37/2001-CX on 19.11.2001 accepting the decisions of Moosa Hazi Patrawala P. Ltd. v. CCE (1996 (1) TMI 220 - CEGAT, BOMBAY) which in turn was decided along with Gujarat Medicraft Pvt. Ltd. (2000 (11) TMI 1210 - GUJARAT HIGH COURT) In view of this development, the reference is answered in favour of the assessee and against the revenue.
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2014 (3) TMI 9 - BOMBAY HIGH COURT
Principle of natural justice - passing an order nine months after the conclusion of hearing - Duty demand under Section 11A(2) - Equivalent penalty has also been imposed under Section 173Q(bb) of the Central Excise Rules, 1944 - Held that:- authorities under the Act are obliged to dispose of proceedings before them as expeditiously as possible after the conclusion of the hearing. This alone would ensure that all the submissions made by a party are considered in the order passed and ensure that the litigant also has a satisfaction of noting that all his submissions have been considered and an appropriate order has been passed. It is most important that the litigant must have complete confidence in the process of litigation and that this confidence would be shaken if there is excessive delay between the conclusion of the hearing and delivery of judgment.
Delay by the Adjudicating Authority in rendering its order nine months after the conclusion of the hearing has caused prejudice to the Petitioner as it has not considered the evidence produced in respect of return of goods within 180 days - we set aside the impugned order dated 31 July 2013 and direct the Additional Commissioner of Central Excise and Customs to pass a fresh order after granting the Petitioner an opportunity of personal hearing - Decided in favour of assessee.
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2014 (3) TMI 8 - SUPREME COURT
Reversal of CENVAT Credit - removal of goods against CT-3 certificate without payment of duty - High Court relied on decision of MANAKSIA LTD. Versus COMMISSIONER OF C. EX., KOLKATA-IV [2007 (5) TMI 93 - CESTAT, KOLKATA] and has not recorded any reason - Held that:- said order had been overruled by a larger Bench of the Tribunal in "Lakshmi Automatic Loom Works Ltd. Vs. Commissioner of Central Excise, Trichy [2008 (10) TMI 57 - CESTAT CHENNAI] - Unfortunately, the above aspect of the matter had not been brought to the notice of the High Court when the High Court had passed the impugned order - In the above circumstances, we quash and set aside the order passed by the High Court and remand the matter to the High Court with a request to the High Court to decide the matter afresh, preferably within four months from the date of receipt of this order by hearing the concerned advocates afresh, without giving any undue adjournments to either of the parties - Decided in favour of Revenue.
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2014 (3) TMI 7 - CESTAT AHMEDABAD
Default in making Central Excise duty payment - Penalty under Rule 25 of the Central Excise Rules, 2002 - Default under Rule 8 - Held that:- there was no intention on the part of the respondent assessee to evade any payment of duty. It is only because of stringent financial condition, that the duty could not be paid in time and as soon as liquidity was available, duty was paid along with interest. The Tribunal has, therefore, rightly come to the conclusion that penalty could not be levied under Rule 25 of the Rules and for the alleged default, the penalty was restricted to Rs. 5,000/- in each matter under Rule 27 of the Rules - Following decision of Commissioner of Central Excise and Customs Vs. Saurashtra Cement Ltd. [2010 (9) TMI 422 - GUJARAT HIGH COURT] and Siyaram Packaging Pvt. Ltd. Vs. CCE, Daman [2013 (4) TMI 382 - CESTAT AHMEDABAD] - Decided partly in favour of assessee.
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2014 (3) TMI 6 - CESTAT MUMBAI
Availment of CENVAT Credit - Whether the assesee is entitled to take CENVAT credit on the inputs which have been used for trial run/testing of the capital goods - Held that:- Following decision of Flex Engg. Ltd. Versus Commissioner of Central Excise [2012 (1) TMI 17 - Supreme Court of India] - therefore respondents are entitled to take CENVAT credit on the inputs which have been used for trial/testing of the goods - Decided against Revenue.
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2014 (3) TMI 5 - CESTAT MUMBAI
Imposition of penalty - Denial of CENVAT Credit - Credit in respect of the service tax paid on CHA services, Telephone charges, Insurance charges and repairs and maintenance of factory, courier services and motor vehicle repair charges - Held that:- The credit in respect of CHA services, Telephone charges, Insurance charges, repair and maintenance of factory and courier services is allowed. In respect of repair of motor vehicles I find no infirmity in the impugned order where the same has been disallowed as there is no nexus between the services and the activity of manufacture - demand denying credit on CHA service, telephone service, insurance charges, repair and maintenance of factory and courier service is set aside and consequently the penalties are also set aside. The demand with interest and consequential penalty in respect of denial of credit on repair of motor vehicles is upheld - Decided partly in favour of assessee.
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2014 (3) TMI 4 - CESTAT MUMBAI
Denial of Input service credit - Held that:- As it is a case of availment of input service credit on the services of housekeeping, courier, freight and forwarding service, which have been availed by the appellant and same has been transferred to various division, which actually availed the services in question. Therefore, I hold that the appellant are entitled to availed CENVAT Credit on the input service except the services availed by Emco Energy Ltd. to the tune of Rs. 1134 - appellant are directed to reverse the same and are liable to equal penalty - Decided partly in favour of assessee.
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2014 (3) TMI 3 - CESTAT MUMBAI
Valuation of goods - Valuation of physician samples - Valuation u/s 4 as transaction value or u/s 4A as MRP - Held that:- it is admitted fact in the cases in hand that these physician samples were cleared by the appellant on principle to principle basis on a transaction value, which was admissible at the time of clearance of the physician samples, than the transaction value is to be determined as per Section 4 (1) (a) of the Act - Following decision in the case of Themis Laboratories Pvt. Ltd. [2011 (2) TMI 713 - CESTAT, MUMBAI] - Decided in favour of assessee.
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2014 (3) TMI 2 - CESTAT MUMBAI
Denial of CENVAT Credit - Credit taken on the endorsed invoices - Held that:- Credit was taken on the basis of invoices endorsed by a whole sale dealer wherein in this case the facts are totally different as invoice has been issued on unit No.1 which is a sister unit and the goods have been transferred to Unit NO. 2 therefore the first unit endorsed the invoices of their Unit No.2. In the case of Coimbatore Murugan Mills (2003 (3) TMI 227 - CEGAT, CHENNAI) this Tribunal held that if there is transfer of goods between the same appellant in different units, credit can be taken on the basis of endorsed invoices. In this term, I hold that the appellants are entitled to take credit - Decided in favour of assessee.
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2014 (3) TMI 1 - CESTAT MUMBAI
Demand of interest - Cenvat Credit on capital goods when finished goods exempted later - Interest for the intervening period - Capital Goods cleared later - Held that:- when the capital goods were procured by the appellant they were entitled to take credit and product was dutiable. Although the product became duty free on 09.07.2004 but there was no bar for capital goods to reverse the credit on said date and thus capital goods have been cleared on payment of duty. As there is no duty liability on 09.07.2004, the appellants were not required to pay interest for the intervening period - Decided in favour of assessee.
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