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Central Excise - Case Laws
Showing 41 to 60 of 315 Records
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2014 (3) TMI 913 - CESTAT BANGALORE
Classification of goods - printed paper boards (wrappers) - Whether to classify the subject goods under SH 4901.90 ‘as products of printing industry’ as claimed by the assessee or under SH 4823.90 as claimed by the revenue - Held that:- Precedent case has classified similar products of different manufacturers as ‘products of printing industry’ under SH 4901.90. The products so classified include printed PVC films, printed polyethylene coated paper etc. This Bench in the said case held that the printing activity was essential rather than incidental. This view was taken after examining the relevant tariff entries and Section Note (Note-2 to Section 11 of the CETA Schedule) - Decided against Revenue.
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2014 (3) TMI 912 - CESTAT NEW DELHI
Reversal of Cenvat credit - Denial on the ground that the activity of wire drawing does not amount to manufacture - Held that:- demand of duty which has been confirmed by the adjudicating authority and set aside by the learned Commissioner (Appeals) is in respect of Cenvat credit availed by the assessee-respondent on the inputs used for drawing of wire. It is also not disputed that the final product cleared by the respondent-assessee is on payment of appropriate duty during the relevant period. We find that the learned Commissioner (Appeals) has correctly come to the conclusion that the disallowment of Cenvat credit is not in accordance with the law for more than one reason. First of all, the duty discharged by the appellant on the final product, will in a way amount to reversal of Cenvat credit taken and the ratio of the order of the Tribunal in the case of Venus Wire Industries cited supra, will squarely apply in this case. Secondly the CBEC Circular dated 26-7-2006 also talks about regularisation of credits availed on inputs and duty paid on wires drawn by a retrospective amendments. We find that para 4.4 of the said CBEC Circular will apply in this case - Decided against Revenue.
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2014 (3) TMI 911 - CESTAT NEW DELHI
CENVAT Credit - Whether M.S. Plates, M.S. Angles & Joist, HR sheets etc. used in the factory by the appellant for repair and maintenance of the plants and machinery for replacement of worn out parts or for fabrication of structures and machinery used in production of sugar and molasses are eligible for Cenvat credit as inputs or capital goods - Held that:- There is no mention in this statement that the structures referred to are the supporting structures for the machinery. When these items are used for fabrication of various machinery or their parts, the same would be covered by the definition of ‘input’ and would be eligible for Cenvat credit. When these items are used for repair and maintenance of plant and machinery, the Cenvat credit would be admissible in respect of these, in view of judgment of Hon’ble Rajasthan High Court in the case of Union of India v. Hindustan Zinc Ltd. (2006 (5) TMI 44 - HIGH COURT RAJASTHAN), and of the Tribunal in the case of CCE, Salem v. India Cements Ltd. (2005 (11) TMI 348 - CESTAT, CHENNAI) wherein it has been held that M.S./S.S. Plates used for repair and maintenance of the machinery, which is used for manufacture of final product would be eligible for Cenvat credit. - Decided in favour of assessee.
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2014 (3) TMI 910 - CESTAT MUMBAI
Valuation of goods - Textile articles - Job Work - Inclusion of traders profit, Octroi duty transportation charges, loading/unloading charges of fabrics and marketing expenses and interest - Held that:- as per C.B.E. & C. Circular No. 619/10/2002-CX., dated 19-2-2002, the traders profit is not includible in the assessable value. The departmental officers are bound by board circular. Therefore, the demand of Rs. 0.94 for addition of traders profit is not sustainable. If at all the demand of transportation, loading/unloading charges and manufacturing expenses are to be taken into account to arrive assessable value, the respondent has already included Rs. 0.75 per metre in the assessable value after adopting the formula as laid down by the Apex Court in the case of Ujagar Prints [1988 (11) TMI 106 - SUPREME COURT OF INDIA] that is cost of raw material + Job charges. Therefore, the charges made in the show-cause notice are not sustainable - Decided against Revenue.
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2014 (3) TMI 909 - CESTAT KOLKATA
Waiver of pre-deposit - recovery of the amount which has been refunded to the appellant under the Notification No. 32/99, as amended from time to time - Held that:- it is not in dispute that the appellant had correctly followed the conditions of Notification No. 32/99, as amended from time to time. We find that the said Notification provides exemption from duty on the goods specified in First Schedule and Second Schedule of the Central Excise Tariff Act, 1985 cleared from the Unit located in notified areas in the North-East Zone. We find that prima facie, the appellant has made out a case in their favour and that the view is fortified by judgments of Hon’ble High Court. The show cause notice in this case is issued to the appellant under Section 11A of the Central Excise Act, 1944. As correctly pointed out by the learned Counsel, this has been not accepted as a correct position of law by the Hon’ble High Court of Gauhati in the case of C.C.E., Shillong v. Jellalpore Tea Estate (2011 (3) TMI 11 - GAUHATI HIGH COURT ). In view of the foregoing, we are of the considered view that the appellant has made out a prima facie case for waiver of the pre-deposit of the amounts involved - Stay granted.
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2014 (3) TMI 908 - CESTAT NEW DELHI
Availment of CENVAT Credit - Cenvat credit was availed on the basis of 27 TR-6 challans under which the appellant’s head office at Mumbai had paid the service tax as service recipient on behalf of the Malanpur unit - Held that:- GTA service in respect of which Cenvat credit had been taken, had been availed by the Malanpur unit of the appellant and since for the payment of service tax on GTA service, centralized registration had been taken by their head office at Mumbai, the service tax had been paid by the head office and on the basis of the TR-6 challans/taxpayer’s counterfoils, the Malanpur unit had availed the Cenvat credit.
Since, the head office of the appellant had opted for centralized registration for payment of service tax and had paid the service tax under TR-6 challans in respect of the GTA service received by Malanpur unit and the Malanpur unit had taken Cenvat credit only in respect of the service tax paid by the head office, on the GTA service received by the Malanpur plant, the issue of invoice by the head office as input service distributor allocating credit to the Malanpur unit would be only technical necessity. We are, therefore, of prima facie view that in absence of such invoices, it would not be correct to deny the Cenvat credit. The requirement of pre-deposit of Cenvat credit demand, interest and penalty is, therefore, waived for hearing of this appeal and the recovery thereof is stayed, till the disposal of the appeal - Stay granted.
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2014 (3) TMI 907 - CESTAT AHMEDABAD
CENVAT Credit - Security services - Held that:- security services are engaged by the respondent in respect of movement of finished goods from factory premises to the port in container. It is also undisputed that such security services were engaged by the appellant due to various incidences of theft of export cargo, at the time of movement of containers is port. On this factual matrix, I find that the security services engaged by the appellant would be required in order to safe-guard the business interest and will be covered under the provisions of Rule 2(l) of CENVAT Credit Rules, 2004 which defines the input services - in respect of export goods, the place of removal is considered as port and if that be so, any expenses or tax till the goods reach the place of export, the benefit of CENVAT Credit has to be extended to the respondent - respondent has made out a case for availment of credit of such Service Tax paid on the security services - Decided against Revenue.
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2014 (3) TMI 880 - PUNJAB & HARYANA HIGH COURT
Waiver of pre deposit - Whether in facts & circumstances of the present case the Appellate Tribunal is correct in directing the Appellant to deposit ₹ 40 lacs as a pre-condition to hear the matter on merits when the entire issue is covered by the ruling of coordinate bench in Appellant's own case for the previous period - Held that:- Appellant has been required to predeposit ₹ 40 lacs on demand of duty and penalty of ₹ 3 crores which is about 13.33% which cannot be said to be unreasonable. Even otherwise, from the argument of the learned counsel for the appellant, it would emerge that on combined liability of two periods of ₹ 8 crores, the appellant would be depositing ₹ 50 lacs only which cannot be held to be excessive in any manner. The quantum required to be pre-deposited would vary if the total demand increases - no substantial question of law arises - However, time period to make pre deposit extended - Decided partly in favour of assessee.
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2014 (3) TMI 879 - CESTAT NEW DELHI
Denial of CENVAT Credit - Denial on the ground that the invoices are in the name of their head office - Commissioner (Appeals) held that the respondents would be entitled to the credit of commission paid to the sole selling agents, where the paper was excisable - However, demand of which the respondents had already reversed was upheld - Held that:- no infirmity can be found in the order of the Commissioner (Appeals). However, as regards the contention of the Revenue is that admittedly CENVAT credit of Rs.5,52,226/- stands denied to the respondents, who have also not challenged the same, penalty to the extent of 100% should have been imposed. As such, the prayer to enhance the penalty.
Entire credit was taken by the respondent on statutory record and they were filing the returns to the Department. In as much as the issue involved is of legal interpretation, no mala fide can be attributed to the respondents so as to impose 100% penalty upon them. In my views, even imposition of penalty of Rs.10,000/- is not called for, but in as much as the respondents have not challenged the said order, by way of filing a separate appeal, the same cannot be set aside - Decided against Revenue.
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2014 (3) TMI 878 - CESTAT MUMBAI
Denial of refund claim - Unjust enrichment - Refund sanctioned by the Commissioner (Appeals) - Held that:- appellants have produced letters from their customers who have certified that they have paid the CVD amount calculated @ ₹ 30 per Sq Meter and not @ 16% Adv. In this situation the tribunal decision relied upon by the appellants in the case of Alstom Ltd. vs. CCE Allahabad - [2004 (4) TMI 127 - CESTAT, NEW DELHI] is relevant. In the said decision the Tribunal held that bar of unjust enrichment is not applicable when buyers never paid the duty amount. I therefore find that the appellants have produced sufficient documentary evidence to show that the incidence of duty has not been passed onto the customers. Also the adjudicating authority has mentioned about the accounting treatment given to duty paid on expenditure and not as receivable and observed that hence there is chance of it being passed on indirectly. - Commissioner (Appeals) has examined the issue of bar of unjust enrichment on basis of evidence therefore, I hold that the respondent has passed of unjust enrichment as they have not passed the duty burden on the customers - Decided against Revenue.
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2014 (3) TMI 877 - CESTAT NEW DELHI
Evasion of duty - Movement of the goods covered by parallel invoices - Held that:- The manner how transactions have been made proved oblique motive and connivance of the buyer respondent. The respondent was one of the beneficiary of clandestinely removed goods by manufacturer. Secrecy hides conspiracy and ill design of committer comes to see the light when that is unearthed. An offender voluntarily reveals secrecy rarely. But generally that is demonstrated by governing facts and attendant circumstances of the case. The goods escaping duty from the end of the manufacturer causing evasion is bound to escape in the hands of buyer being unaccounted. If evasion is permitted to perpetuate that shall be bonus to evaders and economy shall be shacked. Therefore, adjudication sustains in so far as levy of penalty on the respondent is concerned - Decided in favour of Revenue.
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2014 (3) TMI 876 - CESTAT NEW DELHI
Availment of CENVAT Credit - Erection, installation, and commissioning service - Held that:- As regards, the service for civil work relating to setting up of the factory, we find that during the period of dispute, the definition of input service, as given in Rule 2 (l) of Cenvat Credit Rules, specifically included "services used in relation to setting up, modernization, renovation or repair of a factory, premises of provider of output service or an office related to such premises or factory".
The above expression is very vide and would cover all the services relating not only to erection, installation, commissioning of the plant and machinery, but also the services used in relation to construction of the office premises within the factory. services, in question, are covered by the definition of input service. Since, the factory has been set up for manufacture of final products - automobiles components, the service, in question, has to be treated as an input services used in or in relation to manufacture of final product - the auto components and would be eligible for Cenvat credit - Decided in favour of assessee.
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2014 (3) TMI 875 - CESTAT NEW DELHI
Duty demand - Date of clearance of goods - Lecithin was exempted till 28-2-2006 and became dutiable from 1-3-2006 with issuance Notification No. 21/2006, dated 1-3-2006, vide which earlier exemption Notification No. 115/75, dated 30-4-1975 was rescinded - Appellant sold Lecithin in February, 2006 by way of commercial invoice - However, it was actually cleared by them in the month of June and July, 2006 - Held that:- rate of duty applicable to the excisable goods shall be the rate in force on the date when such goods are removed from the factory. Inasmuch as admittedly the said goods were removed from the factory in the month of June and July, 2006 when they attract duty, we are of the view that confirmation of demand of duty against the appellant is in accordance with law. Mere fact that the sales invoices were raised in February, 2006, when the goods were exempted, but no removal took place, by itself cannot be held to be shifting the date of removal to February, 2006. In terms of said Rule, it is the date of actual and physical removal of goods from the factory which has to be taken into consideration. As such, we find no possible ground to interfere in the order of the authorities below - Penalty set aside - Decided partly in favour of assessee.
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2014 (3) TMI 874 - CESTAT NEW DELHI
Denial of Modvat credit - vehicle nos. mentioned in the invoices issued by TISCO are registered as scooters, tractors and motorcycles which were not capable to transport quantum of such huge scrap shown in the respective invoice - Commissioner (Appeals) set aside demand - Held that:- there is no dispute about the correctness of the invoices issued by TISCO for their stockyard. Further the invoices issued by the dealers showing movement of the goods from their place to the respondent are also not being disputed. The only dispute is about the correct vehicle nos. mentioned in the invoices issued by TISCO. Revenue has also not disputed about receipt of the inputs of the appellant. In the absence of any allegation as regards the invoices issued by the dealers showing movement of the inputs from his place to the assessee’s factory, I am of the view that the discrepancy, if any, in the invoices issued by the TISCO stockyard will not result in denial of credit to the respondents - Decided against Revenue.
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2014 (3) TMI 873 - CESTAT CHENNAI
Eligibility to credit in respect of the impugned goods such as MS angles, channels etc. - Inputs or Capital goods - Held that:- appellants have claimed that they have used the impugned goods for manufacturing ‘sand plant’, which in turn is used for making ‘sand moulds’, which in turn is further used for manufacturing various castings. If the sand plant can be considered as machinery and capital goods, the appellants would have been entitled to input duty credit in respect of the impugned goods utilized for making a sand plant. However, there is a categorical finding by the original authority in his order that the sand plant is embedded to earth and is immovable and as such the same cannot either be considered as goods or as capital goods. Hence, the claim of the appellants for Cenvat credit has been rejected. The reasoning given by the original authority is sound and the same requires no interference - However penalty is waived - Decided partly in favour of assessee.
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2014 (3) TMI 872 - CESTAT NEW DELHI
Benefit of Notification No. 34/97 in terms of DEPB scrip - Procurement of DEPB scrip on the strength of forged/substituted shipping bills - Held that:- Admittedly the export had taken place when the DEPB scrip were not cancelled by the DGFT and were still valid in the eyes of law. There is also no finding of any aiding and abating Beni Export by the appellant. The portion of the order of the adjudicating authority dropping the proposal to impose penalty does not stand appealed against by the Revenue - demand, having been raised by invoking the longer period of limitation is not sustainable. The same is accordingly set aside - Decided in favour of assessee.
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2014 (3) TMI 871 - CESTAT NEW DELHI
Waiver of pre deposit - Interpretation of Section 93 of the Finance Act, 2004 - Assessee contends that cement cess and dolomite cess have been levied not by the Ministry of Finance (Department of Revenue) but by the Ministry of Industrial Development and Ministry of Labour respectively. Therefore said amount of cess could not have been added to the aggregate amount for the purpose of calculation of education cess - Held that:- on prima facie reading of Section 93 we find that there is merit in the submission made by the learned Counsel for the appellant. Accordingly, we hold that it is a fit case for waiver of the condition of pre-deposit of duty, interest and penalty - Stay granted.
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2014 (3) TMI 870 - CESTAT NEW DELHI
Shortage of stock - physical verification of goods - Held that:- No doubt preponderance of probability may come to the rescue of revenue but to take shelter of such principle there should be circumstantial evidence and precision in the inquiry demonstrating the real criteria adopted for determining the shortage. No conclusion should flow on mere surmises or assumption or presumption. Whim and capies being alien to justice, the present impugned order has no leg to stand - Decided in favour of assessee.
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2014 (3) TMI 869 - CESTAT AHMEDABAD
Penalty - Commissioner reduced penalty - Availment of CENAVT Credit - Held that:- show cause notice demanding recovery of cenvat credit was issued under Rule 12 of Cenvat Credit Rules read with Section 11A of the Central Excise Act. The penalty under Rule 15(1) provides that any person taking cenvat credit in respect of inputs or capital goods wrongly or in contravention of any of the provisions of the rules will be liable to penalty not existing the duty on the excisable goods of which any contravention has been committed or Rs. 10,000/- (Rs. 2,000/-) w.e.f. 11-5-07 whichever is greater. Therefore the quantum of penalty leviable will be up to the duty on the excisable goods involved or Rs. 10,000/- or (Rs. 2,000/-) whichever is greater. I find that as per the Order-in-Original the penalty has been imposed under Rule 13(2) [now Rule 15(2)] of Cenvat Credit Rules, 2004 read with Section 11AC of the Act. Rule 15(2) is para materia with the erstwhile Rule 57-I(4) of the Modvat Scheme. Even if a harmonious reading of Rule 15(1) and 15(2) of Rules the contention of the respondent that the penalty cannot be less than the excise duty involved will not find any support legally - Decided against Revenue.
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2014 (3) TMI 868 - CESTAT CHENNAI
Disallowance of CENVAT Credit - Simultaneous claim of depreciation under the provisions of the Income-tax Act - Held that:- entire amount of Rs. 5,16,024/- availed as credit was reduced by the assessees from the cost of fixed assets for the purpose of claiming depreciation under the Income-tax Act, 1961 - Rs. 4,16,528/- was reduced from the cost of fixed assets in the year ending 31st March, 2004 and a sum of Rs. 99,496/- was reduced for the purpose of claiming depreciation in the year ending 31st March, 2006 - assessees are entitled to credit of Rs. 1,33,578/-, set aside the impugned order denying credit and imposing penalty, and allow the appeal of the assessees with consequential relief, if any, due to the assessees in accordance with law - Decided against Revenue.
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