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Central Excise - Case Laws
Showing 81 to 100 of 315 Records
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2014 (3) TMI 792 - CESTAT NEW DELHI
Valuation of goods - manufacture of glass sheets - Inclusion of sound delivery charges - Held that:- We have examined the invoices issued in some of the cases, where no sound delivery charges stand raised and received by the appellants. As such the contract price being available at the factory gate and the sound delivery charges being optional in nature, we find no reasons to add the same in the assessable value of the goods - assessee has undertaken transport and insurance of the goods after their sale from the factory or depot, such charges cannot be included in the assessable value of the goods. We also find that the transit breakage is covered under the sound delivery charges and the same were in nature of insurance to breakage of the goods - sound delivery charges recovered by the appellants were not to be added to the assessable value, the bifurcation of the same into freight, insurance and transit breakage, by the Commissioner (Appeals) was not justified - Decided in favour of assessee.
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2014 (3) TMI 791 - CESTAT NEW DELHI
Penalty – Denial of Cenvat credit on Boomer Tattoo - manufacture of chewing gum/bubble gum - Earlier tribunal [2010 (2) TMI 443 - CESTAT NEW DELHI] has disallowed the credit as Tatoos/Printed Transfer were being supplied as complementary items not eligible for credit - demand with interest and penalty was confirmed. - In respect of penalty HC has remanded back the order for reconsideration – Held that:- If the credit was being availed by reflecting the same in the statutory records and proper ER-1 returns were being filed, it cannot be said that there was any suppressions on mis-statement with any malafide intent on the part of the assessee - issue involved in the present appeal is of legal interpretation of the provisions of Modvat Rules and is capable of interpretation in favour of the assessee also. As such the respondents cannot be faulted upon for availing the benefit of Modvat credit in respect of Tattoos so as to impose penalty upon them - no reason to impose any penalty on the respondents - denial of Modvat credit upheld, penalty is not required to be imposed - Decided partly in favour of Reveue.
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2014 (3) TMI 790 - CESTAT NEW DELHI
CENVAT Credit - avaling Credit while availing duty drawback - Benefit of Notification No. 29/2004-C.E - Penalty under Section 11AC of the Central Excise Act, 1944 read with Rule 15 of Cenvat Credit Rules, 2004 - Held that:- Credit taken in ER-I return of December 2005 for inputs received during Feb. and March 2005 is illegal for the reason that during the said period, the Appellants were required to maintain separate account of inputs used in the manufacture of dutiable products if they were to claim Cenvat credit. Further, it is also on record that the Appellants were claiming drawback and they could not have claimed drawback and Cenvat credit together. Having operated under a scheme where they had to forgo the Cenvat Credit Rules till November 2005, they are not entitled to take credit for input used in the previous period as opening balance in the return of December 2005. There is no affirmation that during 2005 they were maintaining separate accounts.
Rule 15 of the Cenvat Credit Rules, 2004 does not mandate that a penalty equal of the credit regularly taken has to be imposed. The Rule prescribes that penalty not exceeding such credit amount shall be imposed. Therefore, in the facts of the case, I am of the view that penalty of Rs. 90,000/- under Rule 15 of the Cenvat Credit Rules will be sufficient to meet the ends of justice in this case - Decided partly in favour of assessee.
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2014 (3) TMI 789 - CESTAT NEW DELHI
100% EOU - Determination of Rate of duty where goods have been manufactured wholly from the raw material produced or manufactured in India - Supplier has availed deemed export benefit in respect of this supplies under para 8.3 (a) & (b) of the EXIM Policy - DTA clearances of polyester or polyester cotton blended spun yarn made out of PSF - Exemption Notification No. 23/2003-C.E., dated 31-3-2003 - Held that:- the terms “imported goods” cannot be treated as synonymous with “goods not produced or manufactured in India”. The goods imported into India can be the ones which had been produced or manufactured in India. Moreover in this case, there is no dispute that the PSF supplied by M/s. Indo Rama to the Appellant Company had been manufactured by them.
Just because M/s. Indo Rama availed deemed export benefits under para 8.3(a) & 8.3(b) of the EXIM Policy in respect of PSF manufactured and supplied by them to the Appellant Company, the PSF supplied to the Appellant Company will not cease to be manufactured in India. There is no provision in the notification that the goods received as deemed exports are to be treated as “goods not produced or manufactured in India” - Appellant have a strong prima facie case in their favour and the requirement of pre-deposit will cause undue hardship - Stay granted.
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2014 (3) TMI 788 - CESTAT NEW DELHI
Duty demand - Shortage in stock - Allegation of clandestine removal on the basis of admission before Income Tax Authority - Commissioner set aside demand and penalty - Held that:- apart from surrendering of income to the Income Tax department, there is no iota of evidence to suggest that such excess income was on account of clandestine manufacture activity of the respondents. Even there is no such admission on the said ground by any of the assessee’s authorized representative. In such scenario, we find no reason to hold that surrendered income was on account of clandestine manufacturing activity - Tribunal in the case of Ravi Foods Pvt. Ltd. v. C.C.E., Hyderabad - [2010 (12) TMI 290 - CESTAT, BANGALORE] and C.C.E., Ludhiana v. Mayfair Resorts - [2011 (3) TMI 175 - PUNJAB AND HARYANA HIGH COURT ] has held that admission by assessee to Income Tax department as regards undisclosed/suppressed sales turnover cannot be held to be on account of clandestine removal of their final products, in the absence of any other corroborative evidence - Decided against Revenue.
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2014 (3) TMI 787 - CESTAT CHENNAI
Classification of goods - Classification under 8479 or 8448 - (1) Wire mounting equipment: (2) Roll-O-Dress - lickering mounting machine; and (3) Flat mounting machine. - Held that:- All the three machines would fall for classification under Tariff Heading 84.79 as ‘machines having independent functions’. As regards the machine at S.No. 3, the Tribunal has held [2004 (6) TMI 363 - CESTAT, CHENNAI] will fall for classification as ‘a machine having an independent function of replacing worn out card clothing on carding cylinder’, classifiable under Heading 84.79. The other machines also have ‘independent/individual function’ and are thus classifiable under Chapter Heading 8479.00. We, therefore, set aside the finding of the Commissioner (Appeals) that the ‘machines do not have any’ independent functions but are textile machinery used in the carding room and cannot be used separately, and, therefore, merit classification under Chapter Heading 8448.00 - all machines in dispute are to be classified under Chapter Heading 8479.00 - Decided in favour of Revenue.
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2014 (3) TMI 786 - CESTAT BANGALORE
Waiver of pre-deposit - Cenvat Credit on inputs supplied free of cost - MRP Based valuation u/s 4A - whether the assessee is eligible to avail Cenvat credit of the duty paid on the film roll which are cleared by the assessee along with the camera pack of the camera on which duty liability discharged based on Section 4A - Held that:- accessories of the final product cleared with the final product are considered as input. There is no dispute that the films which are cleared along with final product by the appellant in the combination pack are duty paid. It is also seen from the order-in-original that the ld. Commissioner has recorded in his findings that the films are accessories to the camera. We find that, prima-facie, appellant has made out a case for waiver of pre-deposit of amounts involved. Applications for waiver of pre-deposit of the amounts involved are allowed and recovery thereof stayed till the disposal of the appeals - Stay granted.
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2014 (3) TMI 785 - CESTAT KOLKATA
Duty demand - Availment of CENVAT Credit - there was no duty paying documents in the name of the registered dealers in respect of the inputs supplied to the appellants - Held that:- As there is no duty paying documents with the registered dealers showing payment of duty on the inputs which was supplied to the appellants and the appellants availed credit on the strength of invoices issued by the dealers, I find that the appellants failed to show the inputs received by the appellants and have suffered duty, therefore, the demand is rightly made. The impugned order confirming the demand is upheld - However, penalty reduced - Decided partly in favour of assessee.
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2014 (3) TMI 784 - CESTAT BANGALORE
Cenvat Credit - Classification - Inputs or capital goods - 100% credit at once - whether Lithographic Plates and Thermostar are to be treated as inputs or capital goods - Held that:- what was input prior to introduction of definition of capital goods and Modvat credit for capital goods does not become capital goods once the definition of capital goods is given and credit is made available for capital goods also. Further, I take note of the fact that as and when a printing order is received, the printer has to take a plate, expose and develops the material on that plate and then proceed to print the matter. That being the position, the Lithographic plate, chemical etc. used for printing would all become inputs for the offset printing process and we cannot say that Lithographic plate alone would not be input just because the same can be used repeatedly.
Just like other inputs, the Lithographic plate also is relevant only for a particular job which the printer undertakes and the job may be repetitive but the fact remains that the plate cannot be used for any other purpose. Moreover, the printers charges for cost of Lithographic plate, exposure and development cost used by them separately. In any case, the cost of the Lithographic plate exposed and developed is recovered from the person for whom offset printing job is undertaken. All these factors would go to show that a Lithographic plate used by the appellant is an input for a particular offset printing job and that may be repetitive but cannot be said that like a capital goods Lithographic plate is used repeatedly. - Therefore, Lithographic plate cannot be considered as capital goods - Decided in favour of assessee.
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2014 (3) TMI 783 - CESTAT NEW DELHI
Duty demand - Destruction of goods by fire - Suppression of facts - Held that:- The DG sets stands utilized for the intended purpose in the Karnataka unit for about five years and transferred to their Imlai unit and installed on 3-6-2002 and was being used in the Imlai unit when the fire on 8-11-2003 destroyed substantial parts of the capital goods. The claim of the applicant was that the scrap generated out of whatever destroyed has been cleared on payment of duty and whatever was reparable has been got repaired and received back in terms of Rule 4(5)(a). In the given facts and circumstances of the case, prima facie, it cannot be treated as a case of removal of capital goods as such and the amount received by the applicants from the insurance company cannot be treated as if sale proceeds of capital goods cleared as such and therefore, payment of duty or reversal of credit on the capital goods so destroyed, may not arise - Stay granted.
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2014 (3) TMI 755 - BOMBAY HIGH COURT
Interest of refund - Delay in refund - Whether in view of the aforesaid legal position CESTAT is correct in law in allowing the interest on delayed refund u/s.11BB of the Central Excise Act, 1944 - Held that:- Explanation to Section 11BB of the Act provides that where any order of refund is made by the Commissioner (Appeals) or the Appellate Tribunal or any Court, the order passed by such Appellate Authority or Court shall be deemed to be an order passed under subsection 2 of Section 11B of the Act for the purpose of this Section. It is, therefore, clear that the appellate order allowing the refund of duty relates back to the order of the original authority and therefore by virtue of substantive Section 11BB of the Act, interest on the refund amount has to be paid from the date immediately after three months from the date of receipt of the application to the original authority till the refund of such duty - No substantial question of law arises - Decided against Revenue.
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2014 (3) TMI 754 - BOMBAY HIGH COURT
Denial of refund claim - Unjust enrichment - Whether the refund of duty deposited during investigation is hit by the doctrine of unjust enrichment - Held that:- there are concurrent findings of fact by the Commissioner (Appeals) & the Tribunal that that the respondent assessee has paid the Central Excise Duty of ₹ 54,339/and ₹ 39,483/, after clearance of the excisable goods. Moreover, this payment of duty was on insistence of Anti Evasion Branch of the Central Excise Department. Thus, it was held that the burden of duty was not passed on to its customers - no substantial question of law arises from the impugned order of the Tribunal - Decided against Revenue.
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2014 (3) TMI 753 - CESTAT KOLKATA
Condonation of delay - Held that:- matter of litigation where certain proceedings are going on before different authorities, it was required to keep the relevant records in a manner to locate them without loss of any time. Moreover, once the appellant came to know on 23rd September, 2012 from the Superintendent that their appeal has been dismissed, they were at liberty to approach the Department and ask for a copy of the records available if any, with the Department so as to enable them to file the appeal as early as possible but I do not find any such attempt made by the appellant. They had not addressed even any letter to the Department to hand over a copy of the order-in-Appeal. I do not find that the reasons given for the delay in this case are the sufficient cause. Though delay is stated to be due to unavoidable circumstances and genuine difficulties, the appellant did not show a diligence and commitment in prosecuting the matter in time. - Condonation denied.
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2014 (3) TMI 752 - CESTAT MUMBAI
Extension of Stay order - Jurisdictional Superintendent has issued a letter dated 11.11.2013 directing the appellant to make payment of the interest and penalty on the ground that in view of the amended provisions of section 35C of the Central Excise Act, 1944, the total period of stay can be only 365 days and not beyond - Held that:- appellant has already paid the duty amount and stay is in respect of only interest and penal liability. In these circumstances, the department is restrained from proceeding with any coercive measures for recovery of the dues adjudged against the appellant - Decided in favour of assessee.
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2014 (3) TMI 751 - CESTAT MUMBAI
Denial of Cenvat Credit - Bill of entry was endorsed in favour of the Thane unit by the Pitampur unit - Validity of endorsed of bill of entry - Held that:- there is no dispute that the imported consignments has not suffered CVD or the said consignment has not been received at the appellant's premises at Thane. The only dispute is that the bill of entry was endorsed by the Pitampur unit to the Thane unit, since the foreign supplier had indicated the addressed of the Pitampur unit in the relevant documents. Since bill of entry is a specified document, on the strength of which the Cenvat Credit can be availed, an endorsed bill of entry is also an equally valid document for availing credit. By endorsement only the name of the consignee is changed - credit can be availed on the strength of endorsed bill of entry also - Following the decision of Eupec-Welspun Pipe Coatings India Ltd. case [2009 (12) TMI 561 - GUJARAT HIGH COURT] - Decided in favour of assessee.
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2014 (3) TMI 750 - CESTAT MUMBAI
Supply of good under ICB for mega power project - Sub-contractor - Project authority certificate - Denial of benefit of Notification No. 06/2006-CE dated 01/03/2006 - Penalty under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002 - Held that:- In the annexure to the certificate, the appellant's name figures as a sub-contractor for supply of EOT Cranes. Therefore, the condition that the goods should be supplied against International Competitive Bidding procedure is clearly satisfied.
Vide Notification No. 12/2012-Cus, goods falling under CTH 9801 is exempt if the same is supplied for any Mega Power Project of capacity of 1000 MW or more subject to a certification by the Joint Secretary to the Government of India in the Ministry of Power. The said certificate is available on record and it is clearly stated that BARH Super Thermal Power Project has a capacity of 1000 MW or more and satisfies all other requirements for grant of exemption. Therefore, we are satisfied that the appellant has complied with the terms and conditions of the exemption notification - Decided in favour of assessee.
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2014 (3) TMI 749 - CESTAT BANGALORE
Clearance of goods at concessional rate of duty - SSI Exemption - Notification No. 09/2003-C.E. dated 01.3.2003 - Held that:- appellants when they received the order for implementation of turn key projects had intimated the department and submitted the cost structure to the department. The assessable value of the transformers was determined as per CAS-4 by a qualified Chartered Accountant and this was submitted on 31.7.2004 to the officer in respect of his letter dated 22.4.2004. Nevertheless, show-cause notice was issued on 12.8.2005 invoking suppression and mis-declaration and proposing to revise the assessable value and demand of differential duty with interest and imposition of penalty as above. We find that what the department has done is to add the freight element from the factory gate to the sites in respect of transformers by invoking Rule 7 read with Rule 11 of the Central Excise Valuation Rules and also calculate the assessable value on the basis of transformer oil requirement indicated in the contract and adopt the one whichever is higher. There is no finding or evidence to show that actual quantum of oil used was higher than what was indicated in the CAS-4 and why the Chartered Accountant’s certificate cannot be accepted.
Important statutory aspects regarding limitation as well as reasons for inclusion of elements of cost have not been given and hence cannot be sustained. In these circumstances, we find that the Revenue has not made out a case for increasing the assessable value on the ground of suppression, mis-declaration or on merits - Decided in favour of assessee.
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2014 (3) TMI 748 - CESTAT BANGALORE
Reversal of CENVAT Credit availed on service tax when inputs are removed as such - Whether the appellant is required to reverse CENVAT credit of service tax paid on CHA service and commission agent service attributable to the imported products which were sold ‘as such’ by the appellant as replacement for worn out parts in the market - Held that:- when the Cenvat availed inputs or capital goods are removed from the factory of the assessee as such, sub rule 3(5) provides for recovery of the amount of the Cenvat credit availed in respect of such inputs or capital goods and there is no provision to reverse the credit of service tax availed in respect of such goods or capital goods. Following the judgment of the Tribunal in the case of Chitrakoot Steel & Power Ltd. Vs. CCE, Chennai [2007 (11) TMI 135 - CESTAT, CHENNAI], I hold that the impugned order is not sustainable - Decided in favour of assessee.
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2014 (3) TMI 747 - CESTAT BANGALORE
Denial of refund claim - Bar of limitation - The consignee viz., PWD, Government of Karnataka was not aware of, nor they indicated in the purchase order that they would be eligible for the duty exemption benefit in terms of Notification No.108/95-CE dated 20.8.1995. - Whether they can claim the refund of Central Excise duty remitted by them but not paid by PWD though the bill was raised including Central Excise duty - If the refund of duty is to be claimed, can it be claimed by them or it has to be claimed by the consignee. - Held that:- appellant failed to show anywhere in the correspondences made by the appellant to the department that there was a specific request to sanction refund of the amount paid.
It has to be noted that as early as 3.3.2006, PWD had written to Deputy Commissioner stating that they would not be paying the amount to the appellant and there was a delay in producing the certificate. The proper course for the appellant to follow was to file an appeal against the decision communicated to them by the Assistant Commissioner on 24.11.2005 stating that since they have not fulfilled the conditions under Notification No.108/95 they are not eligible for the refund.
This was a decision communicated to the appellant, which could have been challenged and they did not do so. As early as 3.3.2006 PWD made it clear that they would not be paying the amount. A request by the third party or a customer to the department requiring the department to reimburse the amount of duty paid cannot be considered as refund claim at all - there is not even a single line stating that ‘I may please be granted refund of Central Excise duty’. Under these circumstances the rejection of refund on the ground of limitation by the lower authorities cannot be faulted with - Decided against assessee.
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2014 (3) TMI 746 - CESTAT BANGALORE
Duty demand - Contravention of provisions of Rule 8(3A) of Central Excise Rules, 2002 - Utilization of Cenvat credit during 8/06 to 2/07 without clearing outstanding amount including interest - Held that:- Wordings in the Rule such as duty for each consignment at the time of removal without utilising the Cenvat credit refers to clearances of goods to be made during suspension period and not to the clearances already made in the past. Therefore I find that restriction imposed in the rule not to utilise Cenvat credit is applicable to clearances to be made during suspension period and it is not applicable to payment of outstanding amount of duty relating to past clearances - As rightly observed by the Commissioner (A), the provisions of Section 8(3)(A) are not attracted in respect of the amounts payable during the default period but the consignment-wise payment of duty and non-utilisation of CENVAT credit are applicable only in respect of clearances which are made during the period default continues - Decided against Revenue.
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