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Central Excise - Case Laws
Showing 101 to 120 of 1051 Records
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2015 (10) TMI 2279 - BOMBAY HIGH COURT
Restoration of appeal - Appeal barred by limitation - Held that:- Joint Commissioner's order which was challenged is dated 1st April, 2007. That was challenged before the Commissioner (Appeals) Central Excise and Customs, Vapi. Before the Commissioner, the argument was that the appeal is not barred by limitation as the petitioner had no knowledge of the order of the Joint Commissioner. It was in winding up inasmuch as the BIFR had recommended in the month of November, 2006 / January 2007, that the petitioner be wound up. This recommendation / reference of the BIFR was treated as a suo moto petition for winding up by this Court and that is how the proceedings commenced and this Court eventually passed the order of winding up. It is during this time that it is stated that all the operations and activities at the factory came to a standstill. There was closure notice and the factory was closed. It is, therefore, impossible for the petitioner to have been aware of an order stated to be pasted on its factory gate. Once all operations were closed and the factory was not operating, then, the appeal filed before the Commissioner (Appeals) could not be said to be barred by limitation.
Once the earlier dismissal of the appeal on merits was exparte, then, the Tribunal could have, by some conditions being imposed, recalled the order and gave a chance to the appellant-petitioner to argue the appeal on its merits. We find that the above perfunctory manner of disposal of the appeal on two occasions and in the absence of the petitioner and its advocates does not sub-serve the larger interest of justice. It is, therefore, in the peculiar facts and circumstances of this case that we set aside the orders dated 29th May, 2009 and 11th April, 2014 and direct that the appeal of the petitioner be restored to the file of the Tribunal - Decided in favour of assessee.
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2015 (10) TMI 2277 - CHHATTISGARH HIGH COURT
Waiver of pre deposit - Undue hardship - Held that:- decision making process of the Tribunal with regard to waiver of pre-deposit suffers from procedural irregularity and is unsustainable in its present form. The orders dated 17-12-2013 and 21-4-2014 are set aside. Central Excise Appeal [2015 (10) TMI 1024 - CESTAT NEW DELHI] is restored to file on merits. The Tribunal shall hear the appellant on its application for waiver of pre-deposit afresh, preferably within a maximum period of four weeks from the date of receipt and or production of a copy of this order before the Tribunal by either party. - Stay granted.
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2015 (10) TMI 2276 - CESTAT NEW DELHI
CENVAT Credit - Whether the credit availed on H.R.Sheets of thickness less than 4 mm is admissible or not - Held that:- when the duty on HR sheets is not paid on the basis of thickness but on the basis of weight, the use of HR sheets of less than 4 mm thickness has no bearing on availing the credit. Revenue does not raise any discrepancy with regard to the weight of input used and weight of final product manufactured. Again, Revenue does not have any case that the HR sheets of less than 4 mm thickness procured by the appellant was diverted in any manner. The department has come to a conclusion without any basis that HR sheets of less than 4 mm thickness is not used by the appellant in manufacture of final products. It is immaterial whether the final product could be manufactured without actually using a particular input or not. What is actually material is whether the assessee has used the inputs in or in relation to manufacture of final products. I find that the assessee has been able to establish that they have used HR sheets less than 4 mm in the manufacture of final products by way of statement given by the managing director of the appellant and certificate issued by the chartered engineer. In view thereof, I hold that denial of credit on HR sheets less than 4 mm thickness is unjustified.
Whether the appellant is liable to pay duty on scrap generated at the job workers end. - Held that:- when the waste and scrap is generated at the job workers premises and inputs are supplied by the appellants then the duty liability is not to be fastened on the principal manufacturer. Similar view has been taken in Mukand Ltd. Vs .CCE, Belapur-[2015 (2) TMI 703 - CESTAT MUMBAI]. Following the ratio laid in the above judgements, I am of the view that the appellant is not liable to pay duty towards waste and scrap generated at the job worker s premises. - Decided in favour of assessee.
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2015 (10) TMI 2275 - CESTAT NEW DELHI
Availment of wrongful CENVAT Credit - Imposition of equivalent penalty - Held that:- Department has come to know about wrongful availment of credit on 2.1.2008. On pointing out the defect, the appellant reversed the credit. If the appellant was liable to pay interest the department ought to have informed the same to the appellant soon after receiving the letter informing the reversal of credit. - Department has no case that the invoices are bogus. No investigation at the end of supplier of machine was done. There may be many reasons for absence of the machines in the factory. If there was fraud it is for the department to establish the same. In a catena of judgements, the Supreme Court has clarified that when the fact is within the knowledge of the department, the extended period of limitation is not invokable. Again it is pointed out by the learned Counsel for the appellant, that the credit when reversed before utilization of the same would amount to not taking credit. Taking into consideration these facts and circumstances of the case, I do not find that department has been able to establish fraud, or suppression with intention to evade payment of duty so as to invoke extended period. I am of the view that the demand is barred by limitation. - Decided in favour of assessee.
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2015 (10) TMI 2274 - CESTAT NEW DELHI
Justification of appeals filed by the Revenue - Non imposition of penalty - Held that:- On perusal of the impugned order, penalty on all the respondents have already been imposed by the adjudicating authority and by filing these appeals against these respondents by the Revenue, no specific relief has been sought. I have also perused the order of the Committee of Commissioners advising to file appeal before this Tribunal and on perusal of the said Review order, I find that Committee of Commissioners has not proposed to file appeals against these respondents. Despite that, appeals have been filed against the respondents. I have also perused the appeal memorandum. There is no prayer in the appeal memos. Appeals filed by the Revenue seek no relief against these respondents. I do not understand why these appeals have been filed before this Tribunal when there is no proposal by the Committee of Commissioners to file these appeals before this Tribunal against the respondents nor any relief has been sought in the appeals against the respondents during the course of arguments. - Decided against Revenue.
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2015 (10) TMI 2273 - CESTAT NEW DELHI
Denial of CENVAT Credit - Welding electrodes - Held that:- issue is no longer res-integra and the Tribunal in Bajaj Hindustan Ltd. case (2013 (11) TMI 981 - CESTAT NEW DELHI) has discussed the judgements of various High Courts on the issue - The judgement laid in Sree Rayalaseema H-Strength Hypo Ltd. (2012 (11) TMI 255 - ANDHRA PRADESH HIGH COURT) relied by Revenue is distinguished in the said judgement. Applying the ratio laid in the above judgement in Bajaj Hindustan Ltd. case, I hold that denial of credit on welding electrodes and gas is unjustified. - Decided in favour of assessee.
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2015 (10) TMI 2272 - CESTAT MUMBAI
Denial of Carry forward of CENVAT Credit - Conversion of DTA to EOU - Held that:- It can be seen from the Rule 11(3) that it will apply only in the situation where final products are exempted. Undisputed fact is that the final products manufactured by appellant in EOU and cleared for export are not dutiable, but the very same final products when cleared into DTA becomes dutiable hence the provisions of Section 5A of the Central Excise Act, 1944 which are sought to be applied by the adjudicating authority and the learned D.R., will not apply as the said provision of Section 5A are in respect of the goods which are fully exempted from payment of duty. Holistic reading of the provisions of Rule 11(3) would indicate that it will apply only in the case when final products are totally exempted. This view has been held by this Tribunal in final order [2015 (10) TMI 844 - CESTAT MUMBAI] in the appellant s own case. - impugned order is unsustainable and liable to be set aside - Decided in favour of assessee.
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2015 (10) TMI 2271 - CESTAT MUMBAI
Valuation - Captive consumption - Invocation of extended period of limitation - Held that:- prices may vary from component to component but by very nature of casting the price will not vary so much. In any case, the grounds of appeal it is presumed without any supporting evidence that the casting which were sold to independent buyers were different from the castings captively consumed. Similarly, it is only the apprehension that the date of invoices for independent buyers is different from the date of invoice for captive consumption. Even if these dates are different the prices of casting will not vary on day to day basis but would be fairly stable. Revenue has not produced any evidence that the dates of the invoice produced before the Commissioner were so much different from the date of captive consumed goods that the prices are necessarily different. In the absence of these details, we do not find any merits in the contention of the appeal filed by the revenue and we agree with the finding of the Commissioner extracted above. Even on limitation, we find respondent has a very strong case. - Decided against Revenue.
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2015 (10) TMI 2270 - CESTAT MUMBAI
Valuation - Non inclusion of cost of loading/handling charges and insurance at the rate of 8% (under the Employees State Insurance Scheme) incurred on the sale of such scrap - Held that:- Issue is settled by the Larger Bench of this Tribunal in the case of Supreme Petrochem Ltd. (2009 (6) TMI 51 - CESTAT, MUMBAI). We have also gone through the show-cause notice as also a copy of the audit objection/ audit memo. From these documents we are unable to understand the basis of taking an amount of ₹ 1300/MT over and above the invoice price. While the expenditure incurred on loading of the goods may be included in the assessable value but anything beyond that would not be includable for pre 01.07.2000. In the present case, we find that the barring 2-3 vouchers wherever a paltry sum of few hundreds rupees for certain labours, there is no evidence whatsoever for an expenditure of ₹ 1300/MT. We are unable to appreciate how a contribution @ 8% which is under Employees State Insurance Scheme will be includable in the assessable value. Similarly, in respect of their own transfer it is not clear how a figure of ₹ 2000/MT has been arrived at. - demand has been issued without proper price analysis or investigation - Impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 2269 - CESTAT KOLKATA
Waiver of pre deposit - revenue contended that applicant was not a manufacturer of the goods supplied to the power corporations but got it manufactured from various job workers. - Imposition of penalty - Held that:- Issues involved in the present case are more or less comparable to the facts and circumstances involved in M/s. S.A. Enterprise case (2015 (10) TMI 1349 - CESTAT KOLKATA). In these circumstances, considering that the applicant had deposited ₹ 5.00 laks during adjudication, the offer to deposit further ₹ 20.00 Lakhs seems to be reasonable at this stage. Consequently, the appellant (1) M/s. Ceebuild Co. Pvt. Ltd. is directed to deposit ₹ 20.00 Lakhs within a period of eight weeks and report compliance on 26/10/2015. On deposit of the said amount, balance dues adjudged against M/s. Ceebuild Co. Pvt. Ltd. and all dues adjudged against Sanjiv Kabra are waived and its recovery stayed during the pendency of the appeals - partial Stay granted.
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2015 (10) TMI 2268 - CESTAT MUMBAI
Classification of goods - Classification under 8485.90 or under 8413.90 - Base frames - Held that:- 8485 covers certain parts which are used in a wide variety of machine but are not included by specific names under Chapter 84 in other headings (e.g. ball bearing). Moreover, the said explanatory notes specifically include ‘base plates’ under 8485. Base plates by very nature would also include base frame and thus would be covered by 8485.90. Base plates and base frames are designed keeping in view the machine or mechanical appliances to be mounted on it. As discussed earlier the base frame is not an integral part of the pump, it is only an accessories to the pump. Even the appellant sells the pump without base frame, as also with base frame. Whenever he is selling along with base frame, its price is separately charged. Keeping in view the above facts in our considered view, the base frame would be classifiable under 8485 and not 8413, irrespective of the fact that such base frames are designed for specific model of the pumps. - Decided against assessee.
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2015 (10) TMI 2267 - CESTAT MUMBAI
Duty demand - Classification of good - Classification under Heading 2710.90 or under Heading 2710.13 - Captive consumption - Held that:- Both the Revenue as also the assessee in their grounds of appeal have urged that the Commissioner (Appeals) should have decided himself instead of remanding the matter. Revenue s contention is that the main terms of remand is to get the goods retested, but the goods are not being manufactured any more and, therefore, neither the sample can be drawn nor the goods can be retested. On the other hand, the assessee feels that based upon the available information, the matter is in their favour. Keeping in view the fact that the samples of the goods are not available and it is not possible to retest the goods but the only solution left is to decide the case based upon whatever evidences are available on record. Since the Commissioner (Appeals) has not examined all the evidences particularly the test reports of the assessee themselves, statements made by various personnel of the assessee and other related evidences, we consider it appropriate that we set aside the order of the Commissioner (Appeals) and remand the matter to the Commissioner (Appeals) to re-adjudicate the matter based upon the evidences already available and which form part of the show cause notice. - Matter remanded back - Decided in favour of assessee.
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2015 (10) TMI 2266 - CESTAT MUMBAI
Penalty u/s 11AC - valuation - inclusion of cost of moulds - Interest u/s 11AB - Held that:- Period involved in the present case is from 1996 to 2000 and under the old Central Excise Valuation Rules there was no specific mention of adding the proportionate cost of moulds. It is true that this Tribunal vide the order in the case of Flex Industries Ltd. (1997 (1) TMI 173 - CEGAT, NEW DELHI) has held that the said cost would be includible. However, that by itself does not imply that any manufacturer who was not including the said proportionate cost was doing so with the wilful intention to evade payment of duty and each case has to be considered in the facts and circumstances of that case. In the present case, we note that some time in 2001 the respondent realized their mistake and they did take remedial measures and they themselves approached Godrej Appliances Ltd. and got details such as certificate from the Chartered Accountant etc. and thereafter computed the differential duty.
The respondent B. Tej Enterprises paid the duty suo motu without any enquiries or any objection from the department. This conduct of the respondent clearly indicates that there was no intention leave alone wilful intention to evade payment of duty. Under the circumstances, in our considered view, this is not a case of imposition of penalty under Section 11AC or imposition of interest under the old Section 11AB (which again requires fraud, collusion, wilful misstatement, suppression of facts etc. with intention to evade duty). We do not find any case for imposition of penalty under Rule 209A also either on second respondent or third respondent. - The issue involved in the present case is relating to penalty under Section 11AC which depends on the facts and circumstances of the case and we do not consider it necessary to discuss each of the case laws quoted by both the sides. Similar is the position about interest under old Section 11AB - Decided against Revenue.
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2015 (10) TMI 2265 - CESTAT MUMBAI
Reversal of CENVAT Credit - Clearance of empty glass bottles on commercial invoices - Held that:- Observation of the original authority that the bottles were unused is without any supporting evidence and we also observe that in the findings itself the original authority has mentioned the explanation of the appellant that the glass bottles were old, unusable or broken or brand name was scratched etc. Thus the finding of the original authority is without any basis. We also find that the Commissioner (Appeals) in his findings has only stated that the bottles were not unusable. Whatever the reason may be, there are no evidences that the bottles sold were unused bottles and in our view, the criteria prescribed under Rule 57F(1) is satisfied i.e. the inputs have been used in the manufacture of final products. Since the bottles have been used in the manufacture of final products, we do not find any reason to demand the cenvat credit availed on such glass bottles. In the result, the demand is not sustainable. - Decided in favour of assessee.
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2015 (10) TMI 2264 - CESTAT NEW DELHI
Denial of exemption claim - manufacture of capital goods (generating sets) at site for manufacturing of finished goods - whether the appellant is entitled to benefit of notification No. 67/95 ibid or not - Held that:- Revenue has not disputed that impugned goods i.e. ASRS is falling under CTH 84.26 which is specified in the definition of capital goods. - As the issue is no longer res integra in the light of decision of the Hon'ble Apex Court in the case of Triveni Engineering & Indus. Ltd.(2000 (9) TMI 1049 - SUPREME COURT), therefore, we hold that appellant is entitled for the benefit of Notification No. 67/95 CE dated 16.3.1995. Therefore, the appellants are not required to pay duty on the impugned goods. Consequently, impugned order is set aside. - Decided in favour of assessee.
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2015 (10) TMI 2210 - CESTAT NEW DELHI
Reversal of CENVAT Credit - Whether the appellant is required to reverse the cenvat credit on account of discounts awarded to the appellant after clearance of the goods on payment of duty by the supplier or not - Held that:- Whatever duty has been paid by the supplier, credit of the same has been taken by the appellant. Further, from the facts, it is also clear that the supplier of the goods have not claimed the refund of the excess duty paid by the supplier on account of reducing the excess value of the goods in question on whom the appellant has taken the cenvat credit, therefore, the CBEC Circular No.877/15/2008-CX dated 17.11.2008 clarifies that situation - as the supplier of the goods i.e. M/s. Tata Steels Ltd. has not claimed any refund of the excess duty paid by them, in that circumstance, the appellant has correctly taken the cenvat credit. With these observations, we do not find any merit in the impugned order. The same is set aside - Decided in favour of assessee.
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2015 (10) TMI 2209 - CESTAT NEW DELHI
Denial of CENVAT Credit - appellant never manufactured/cleared any MTC - variation of description of goods and their value stated in the Bill of Entry and the invoices - Held that:- It is seen from records that appellants have explained in their reply to the show cause notice that the inputs imported were stock transferred under proper invoices to their sister concern at Palwal Unit. Department has no case that appellant's Palwal Unit is not manufacturing/clearing MTC. So, also there is no case that these inputs were diverted or alienated in any manner. I find that authorities below ought to have accepted the explanation offered by appellant which was supported by documents of stock transfer.
In the invoices, being stock transfer, the sale value included all taxes and 10% margin of profit. That therefore, the assessable value in the Bill of Entry is less than the sale value shown in the invoice. A comparable table showing the value in Bill of Entry and value in sale invoice is given. - allegation that value of inputs in invoices did not match with that in Bill of Entry, is baseless. The other allegation is that the inputs stated in these documents did not match description-wise. In the Bill of Entry, the description is given as "gear box". In the sale invoice it is described as a slew gear box, Hoist gear box. Again in Bill of Entry, the description is slewing Ring whereas in the invoice, the description is slew Ring, S-Ring CBE-1200. I cannot agree with the contention of the Respondents that these are major discrepancies on which the benefit of credit can be denied. I do not find any markable variation in the description of inputs in these documents. - No wilful mis-statement or suppression with intention to evade duty is established against the appellants. In such circumstances the extended period is not invokable. The demand is therefore time barred. - Decided in favour of assessee.
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2015 (10) TMI 2208 - CESTAT AHMEDABAD
Cenvat Credit - No dutiable input used in clearance of Exempted finished goods - Whether appellant is required to pay amounts at a particular rate on the value of exempted goods (Bio Feed) cleared by the appellants under provisions of Rule 6 of the Cenvat Credit Rules, 2004 - Held that:- As per the argument made by the appellant Bio Feed is made from the waste generated in the manufacturing of products like Calcium Gluconate, Enzymes, Flavours, which are cleared on payment of duty. No evidence has been produced by the Revenue that duty paid inputs are directly used in the manufacture of exempted byproduct Bio Feed. In the absence of any such corroborative evidence, duty paid inputs used by the appellant will be deemed to have been used in the manufacture of dutiable goods Calcium Gluconate, Enzymes, Flavours etc., manufactured by the appellant and cleared on payment of duty. Accordingly, it is held that the present appeal is covered by the ratio laid down by Supreme Court in the case of Union of India vs Hindustan Zinc Ltd. (2014 (5) TMI 253 - SUPREME COURT) and order dated 09.01.2013 passed by Gujarat High Court in the case of Commissioner of Central Excise & Customs, vs Anil Products Ltd.(2013 (10) TMI 798 - GUJARAT HIGH COURT ). - Decided in favour of assessee.
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2015 (10) TMI 2207 - CESTAT NEW DELHI
CENVAT Credit - Whether Cenvat Credit lying in their Cenvat Credit account lapse as per Rule 571-1(7) ibid on 01.03.2000 that when their product became exempted under notification no. 7/2000 dated 01.03.2000 or not - Held that:- On plain reading of the said Rule if goods are exempted under notification based on value of clearance in financial year, in that case as per Rule 57H(7) the Cenvat Credit lying in their Cenvat Credit account shall lapse. But in the case in hand, the final product of the appellant became exempted under notification no.07/2000 dated 01.03.2000 wholly and same is not on the basis of the value or quantity of clearance by the appellant. Therefore, we hold that provisions of Rule 57H(7) ibid are not applicable to the facts of the case. Therefore, Cenvat Credit of ₹ 5,67,97,164/- shall not lapse - Consequently, the demand will also no sustain. - Decided in favour of assessee.
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2015 (10) TMI 2206 - CESTAT BANGALORE
Denial of remission of duty - Appellants were storing molasses in the steel tanks erected - Puncture of the drain nipple - Held that:- There is no dispute about the bursting of the drain nipple attached to the storage tank and the consequent loss of molasses. The only issue required to be decided is to whether such rupture could have been avoided by the appellant or not. The drain nipple had bursted due to the high static pressure exerted on it by the stored molasses resulting in loss of the molasses. Needless to say that all accidents occur on account of lack of precautions of the personnel responsible for avoiding such incidents and nobody indulges in such accidents purposely. If such a strict measure is adopted, there would be no accident at all. It may be that the appellant were thinking of changing the nipple and before the same could be done, it led to the accident. As is famous saying Nobody invites accident. If such a restrictive construction is made applicable to the provisions of Rule 21 of CENVAT Credit Rules, the same would make the said rule inoperable and redundant. No assessee would cause loss of its own final product for the reason of not paying the excise duty. As such, I am of the view that as long as the accident is not deliberate and there is no mala fide on the part of the assessee to make the accident occur resulting in loss of the goods, the assessee would be entitled to the remission of duty in terms of the provisions of Rule 21. As such, I am of the view that the appellant is entitled to the remission of duty. - Decided in favour of assessee.
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