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Central Excise - Case Laws
Showing 141 to 160 of 1051 Records
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2015 (10) TMI 2141 - CESTAT NEW DELHI
Confiscation of goods - Excess stock found which was not recorded in RG-1 Register - foremost contention of the appellant is that the goods confiscated were not finished goods - search was conducted as on 10/3/2011 - Imposition of redemption fine and penalty - Held that:- The fact of recovery of unaccounted finished goods and raw material and the fact that the RG-1 Register was updated only till 28/2/2011 together with the fact of recovery of loose papers containing accounts of clearance of finished goods, purchase of raw materials, together with the statements given are sufficient materials to arrive at a prima facie conclusion or reasonable belief that the goods are liable for confiscation. It is also contented that the respondents have not recorded that there is reasonable belief to confiscate the goods. - there was enough material to affirm a prima facie case for confiscation. Shri Deepak Maini in his statement has stated that the officers on the reasonable belief that the excisable goods have been manufactured and stored with an intention to remove the same clandestinely and without payment of duty seized the finished goods as mentioned in Annexure-B. The statement given by Shri Neeraj Khattar is also in similar lines admitting the discovery of unaccounted finished goods and raw material. On such score, the contention of the appellant that there was no reasonable belief for confiscation is unacceptable.
The instant case is not a situation where there is mere non-accountal of finished goods. If the finished goods were not accounted in the register, the appellant should be able to give a plausible explanation for such non-accounting. In Pepsi Foods Vs. CCE-Chandigarh, (2001 (11) TMI 118 - CEGAT, NEW DELHI), the non-accountal was sufficiently explained by the assessee. The Tribunal therein observed that Rule 173Q cannot take in an accounting failure simplicitor and held in favour of the assessee. Failure to account goods or raw material may be due to different reasons. There may be instances where the person incharge of accounts is on leave or change of management etc. which may be valid reason for not updating the register. In the present case, the appellant has not been able to give any explanation for not updating the Register. - Further, entries of clearances of finished goods were found in loose papers. From the totality of facts and evidence presented by the case, the intention to evade payment of duty can be safely inferred.
Contention of the appellant that there is no intention to evade the payment of duty is not tenable. The judgment rendered in Bhillai Conductors (P) Ltd. (2000 (1) TMI 105 - CEGAT, NEW DELHI) is thus distinguishable on facts. Therefore, I hold that the confiscation of goods and imposition of penalty is sustainable. - However, redemption fine and penalty is reduced - Decided partly in favour of assessee.
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2015 (10) TMI 2140 - CESTAT NEW DELHI
Duty demand - Clandestine removal of goods - pages / records seized during search - onus to prove - Held that:- Merely on the basis of these papers allegedly containing the production and dispatch and in absence of any corroborative evidence or statement of any employee/ director of Appellant company accepting such clandestine removal, it cannot be concluded that M/s SUPTL has removed these goods without payment of duty. I also find that no evidence has been shown that these goods were cleared to some person and how such alleged clandestine removal has been suppressed. Further I find that Shri Sunil Gandhi in his statement dt. 21.11.2006 refused those papers to be pertaining to any accounting. I am thus of the view that duty demand of ₹ 1,91,552/- is not sustainable. - charges of clandestine removal based merely note books maintained by the workers and other private accounts not sustainable unless supported by corroborative evidence with regard to purchase of raw material, manufacture of final goods, flow back of money or any seizure of statements from purchasers. - Decision in the case of M/s T.G.L.Poshak Corporation (2001 (9) TMI 683 - CEGAT, CHENNAI), followed.
Only for the reason that M/s Arhat an unregistered unit issued few invoices under same serial number cannot be interpreted to the extent that the goods manufactured by M/s SUTPL were cleared under the invoice of M/s Arhat. No modus operandi has been brought on record. Further as regard second portion of demand that in the sheet prepared on the basis of papers allegedly containing details of raw material, production and dispatch wherever remarks no invoice issued was given are clearance of goods manufactured by SUTPL by M/s Arhat, I find that in absence of any evidence of any of the units, the allegation cannot sustain. There are no evidence that any of the units has forged their documents to show that the goods were manufactured by M/s Arhat. Thus it is only a farfetched assumption without any evidence and cannot be accepted.
In the show cause notice it is nowhere coming as to from which place these documents were seized. No panchnama has been relied upon in the show cause notice. Further it is not known as to who is the author of such documents. I find from the stock statement that nowhere the statement shows as to which concern such statement belong. It is alleged that stock statement belong to M/s G.M.Trading company. However I find that the officers did not investigated about such stock statement from M/s G.M.Trading Co. Although the statement of Shri G.M. Mathur was recorded, however no question were asked to him regarding such statement. He was only asked question regarding sales register to which he refused. In absence of any corroboration of the said stock statement with the records of the M/s SUTPL and any other corroborative evidence, I am of the view that the demand cannot survive.
Revenue did not bring any corroborative evidence such as excess receipt of raw material, employment of labour, receipt of goods by any consignee, transportation of goods to the buyers, receipt of sales proceedings by M/s Sunultra which can support the case of the revenue. Further Shri Sunil Gandhi or any employee of M/s SUTPL was neither questioned about removal of goods without payment of duty neither they accepted any clandestine removal - demand and penalty against M/s SUTPL is not sustainable. I further hold that penalty against Shri Sunil Gandhi and Shri Girish Mathur is also not sustainable. In view of my observations and findings, I thus set aside the impugned order - Decided in favour of assessee.
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2015 (10) TMI 2139 - CESTAT MUMBAI
Demand of duty on goods manufactured by the Job worker - Assessee received goods under Notification No.214/86 and not returned the same - Held that:- On perusal of the Notification No.214/86, it is seen that para 2 of the said notification clearly lays down that it shall be the responsibility of the supplier of goods to ensure that the goods are used in the manner specified in the notification. The liability in respect of the goods produced out of, such inputs would be of the recipient of the goods. Thus if only duty has to be demanded on material sent for job work it has to be demanded from the supplier. Similarly, if any duty has to be demanded on products manufactured out of these materials it has to be demanded from the recipient of the goods, i.e. the job-worker. To that extent it is clear that in terms of Notification No.214/86, the liability of payment of duty would fall within the suppler of the goods and not on the recipient. - Notification No.214/86 clearly determines the liability of the sender and that of the receiver of the goods. - show-cause notice itself issued wrongly to the recipient of the goods instead of the supplier of the goods. Learned AR further argued that since the appellant have paid the duty they have assumed the liability and therefore, they cannot escape the responsibility of paying interest and penalty. Reliance on the decision of the Hon ble High Court of Madras in the case of Alstom T&D India Ltd., (2015 (6) TMI 300 - MADRAS HIGH COURT) is misplaced in so far as in that case, the liability of the appellant themselves was no doubt. In this case the liability itself does not exist. In this case, since there was no liability to pay duty, the liability to pay interest and penalty cannot arise. - Decided in favour of assessee.
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2015 (10) TMI 2138 - CESTAT NEW DELHI
Denial of CENVAT Credit - revenue came to the finding that since they have no facility to manufacture HDPE/PP Sacks at Pangaon they are not entitled for the credit of duty on inputs. - Held that:- Appellant made certain factual points which could not be considered by the lower Authority as no personal hearing could be conducted in spite of opportunities given to the appellant. Though the appellant pleads that they had compelling reasons for non-appearance the Original Authority is bound by the provisions of Section 33A and as such proceeded to adjudicate the case without a personal hearing. However, the fact remains that certain details which have direct bearing on the finding of the Original Authority ought to be considered for a fair decision. It is an admitted fact that the purchase of main raw material HDPE/PP Granules the movement of Granules and semi-finished/finished products like HDPE Woven Fabric and Printed Sacks are duly accounted for in statutory records by the appellant. Now the denial of credit is solely dependent on lack of capacity in the appellant unit to cut, print and to make the final HDPE Woven Sacks out of Woven fabric. Further, it is also seen that the appellants have questioned to the factual correctness of the findings of the learned Commissioner in para 4.3 (d) of the order.
Correct appreciation of the factual position is required to arrive at the proper decision. The various accounts maintained by the appellant are to be cross-checked with the allegations made in the show cause notice. Apparently this could not have been done as the original order was passed ex-parte. As mentioned earlier the appellant did not avail the opportunity of personal hearing given by the Original Authority resulting in the present situation. However, in the interest of justice and to arrive at a fair decision we find that the matter has to be remanded back to the Original Authority to decide the case afresh. - Matter remanded back - Decided in favour of assessee.
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2015 (10) TMI 2137 - CESTAT NEW DELHI
Demand of differential duty - Whether or not the appellants are liable for differential duty on account of not following the provisions of Section 4 (1) (a) in respect of goods cleared by them - Held that:- Provisions as they existed during the relevant period for the purpose of valuation clearly state that the value shall be deemed to be normal price during the course of wholesale trade. The presumption made by the lower authority that depots are meant for wholesale trade and hence depot prices will be taken as normal price is neither factually nor legally tenable. The appellant strongly contended that the sale of one or two products at a time to the ultimate customer is nothing but retail sale and cannot be taken for Central Excise assessment purposes. - No infirmity in impugned order - Decided in favour of assessee.
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2015 (10) TMI 2136 - CESTAT BANGALORE
Demand of differential duty - Refund claim - Finalization of provisional assessment - Held that:- The respondent viz. M/s. Vikrant Tyres Ltd. (now M/s. J.K. Tyres & Industries Ltd.) in letter Ref. No.C.Ex./09/PA2000-01 dt. 20/12/2012 addressed to the Superintendent of Central Excise, Metagalli West Range, Mysore has stated that they had cleared the goods to 10 depots from out of 14 depots and their assessments were finalized for the depots to which goods were cleared during that year; the said fact was mentioned in the Order-in-Appeal No.88/2004. The respondent further argues that the doctrine of unjust enrichment is not applicable to provisional assessment cases, when they are finalized and when any refund is due to the assessee. The respondent refers to the Board’s Circular No.744/60/2003-CX dt. 11/09/2003 mentioning that the Department’s appeal on the said issue was dismissed by the Hon’ble Supreme Court in the case of CCE, Chennai Vs. T.V.S. Suzuki Ltd. [2003 (8) TMI 42 - SUPREME COURT OF INDIA]. - Decided against Revenue.
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2015 (10) TMI 2135 - CESTAT KOLKATA
Denial of CENVAT Credit - Capital goods - Held that:- Consultant for the Respondent has now placed a Chartered Engineer Certificate dated 18th March, 2015, wherein it is stated that the cenvat credit availed on capital goods by the Respondent in February, 2008 relating to their non-sheet metal division, which was not sold to M/s Caparo. In these circumstances, I am of the view that the said Certificate needs to be scrutinized by the adjudicating authority. Both sides agree that the matter may be remanded to the adjudicating authority for scrutiny of the said Certificate. In the result, the impugned order is set aside and the matter is remanded to the adjudicating authority about the admissibility of cenvat credit of ₹ 11,77,897/- on the capital goods availed in the month of February, 2008 in the light of the above certificate. After examination of the eligibility of the cenvat credit, the adjudicating authority would decide the other issues raised by the Revenue in their Appeal. - Appeal disposed of.
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2015 (10) TMI 2134 - CESTAT NEW DELHI
Marketability - making of cream within their factory by mixing ingredients like sugar, Vanaspati, milk powder, flavour etc. to be used in the Manufacture of cream biscuits under Parle brand name on job works bases - Captive consumption - Exemption under Notification No. 67/1995-CE - Held that:- In respect of the impugned goods it is necessary for the Department to establish the marketability (not necessarily actual sale of the very same goods made by the appellant). - No test has been carried out regarding the shelf-life, the capability of storage, the availability of market for such goods and evidence to the effect that such similar products are known in the market for trading. The reasoning of the learned Commissioner (Appeals) that the job charges for manufacture of cream of mass production and ultimately for biscuits has been separately fixed by the principal manufacturer (M/s Parle) itself proves that sugar cream is different goods and separately available at the price fixed is mis-leading.
The fact that the job charges are fixed separately for cream/biscuits by itself does not establish the marketability of the product which are wholly consumed in the manufacture of cream biscuits as per the specifications provided by the principal manufacturer. - to charge excise levy on the cream captively consumed it is necessary to support the contention of the marketability of the product with evidence which may include the details of shelf-life, general availability of market for such product, market inquiry etc - matter remanded back - Decided in favour of assessee.
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2015 (10) TMI 2133 - CESTAT AHMEDABAD
Denial of CENVAT Credit - Credit on Coated Pipes (capital goods) used as replacements in a pipeline used for transportation of natural gas from Gail s take off point to Appellant s factory for the manufacture of finished goods - Held that:- From the case law relied upon by the first appellate authority and the Learned Advocate during the course of hearing, it is observed that there were divergent views expressed on the issue. However, CESTAT Ahmedabad in the case of Torrent Pharmaceuticals Ltd. vs Commissioner of Central Excise & Service Tax, Ahmedabad-III (2014 (8) TMI 87 - CESTAT AHMEDABAD) vide order dated 04.07.2014 held the credit of pipes from bringing water from a far of source to the factory for use in or relation to the manufacture of finished excisable goods as admissible. - Decision in the case of Birla Corporation Ltd vs Commissioner of Central Excise [2005 (7) TMI 104 - SUPREME COURT OF INDIA] followed - Decided in favor of assessee.
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2015 (10) TMI 2080 - CESTAT NEW DELHI
Denial of abatement claim - Closure of production - Pan Masala Packing Machines - whether the assessee/appellant has intimated the Assistant Commissioner three days prior to the closure of production - Held that:- There is no dispute that the Fax No. belongs to the concerned Central Excise office to which intimation has to be sent. When the officers have gone to the premises of the factory on 3.09.2013 itself to seal the machines, they had no case that they had received the intimation only on 3.09.2013 and not on 30.08.2013. Surprisingly, the primary adjudicating authority has categorically held that intimation dated 30.08.2013 was received. Rule 10 does not provide the manner in which the intimation has to be send. The Commissioner (Appeals) has no definite case that the intimation was not received. Looking at the Transaction Report, he assumes that the intimation has not been received as it is not clear from its status as to whether the fax is successfully transmitted or not. These conclusions are merely based on assumptions and presumptions. The Fax report along with statement of Panchnama and the totality of facts establish that appellant has given the intimation on 30.08.2013. When the appellant has given intimation three days prior to the date of closure, the denial of refund/abatement is unjustified. The same has to be allowed. - Decided in favour of assessee.
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2015 (10) TMI 2079 - CESTAT AHMEDABAD
100% EOU - diversion of the duty free raw material in the open market without payment of duty - Penalty under Rule 26 - Held that:- Adjudicating authority had fixed personal hearing on different dates 06.02.2007, 20.02.2007 & 27.02.2007. At the request of the learned Advocate of the Appellant the personal hearing was again fixed on 21.03.2007, 24.04.2007 and 14.05.2007. So, sufficient opportunities of hearing were allowed to present their case. There is no violation of principles of natural justice. That the Adjudicating authority proceeded on the basis of documents and corroborative evidences found at the residence of the Appellant and imposed penalty on the basis of these documents. It is seen from the records that Shri Pawan Kumar Bansal, Partner of the firm is directly involved in selling of the duty free material in the market. There is a force in the submission of the learned Advocate that penalty cannot be imposed on both partnership firm and the partner. - considering the submission of learned Advocate that the Appellant is a mere broker, the quantum of penalty is excessive. In our considered view, as the penalty was imposed on the partner, and therefore, the imposition of penalty on the firm is not warranted. - Penalty imposed is reduced - Decided partly in favour of assessee.
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2015 (10) TMI 2078 - CESTAT MUMBAI
Denial of Input credit - Non maintenance of separate accounts - Held that:- Requirement of Rule 6(3), wherein on assessee does not maintain separate records of inputs consumed in the manufacture of duty paid and exempted output, the assessee is required either pay an amount at the fixed percentage (10%/6%) of value of the exempted goods/services or pay an amount as determined under sub-rule (3A). Sub-rule (3A) provides for reversal of proportionate amount attributable to the inputs consumed in the manufacture and clearance of goods without payment of duty. Further sub-rule (3A) provides for filing of an intimation by the assessee giving details as-the name, address, registration number, number of manufactured goods, date from which the option under the clause is exercised or proposed to be exercised, description of dutiable and exempted output and Cenvat Credit of inputs and input services lying in the balance as on date as exercising the option.
Only for the reason of non-filing or delayed filing of intimation under sub-rule (3A), as assessee cannot be required to pay the fix percentage by way of reversal under Rule 6(3), where the assessee have paid the amount by way of reversal which amounts to substantial compliance. It is further admitted fact that the assessee has intimated the fact of reversal by making categorical mention in the ER-1 returns. I hold that the appellant had made substantial compliance of sub-rule (3A) of Rule 6 of Cenvat Credit Rules. - Decided in favour of assessee.
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2015 (10) TMI 2077 - CESTAT MUMBAI
Denial of CENVAT Credit - Held that:- With effect from 18.08.2000 the appellants could not have utilised the Cenvat credit available for the subsequent period for payment of duty of the earlier period. - In the case of Hindalco Industries Ltd. (2013 (12) TMI 698 - CESTAT MUMBAI), we find that the payment related to the fortnight i.e. 1.08.2000 to 15.08.2000 i.e. the fortnight was for the period prior to the amendment of the Rule 57AB, which is not the case here. The present case is relating to payment of duty relating to fortnight after the said Notification. - Appellant is required to pay the amount confirmed in the original order in cash. Appellant will however, be free to take credit of the equal amount in their records for future clearances. Keeping in view the overall facts of the case, penalty imposed under Rule 173C(1) is set aside - Decided partly in favour of assessee.
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2015 (10) TMI 2076 - CESTAT MUMBAI
Rectification of mistake - Appeal dismissed as below the monetary limit - Held that:- It is very clear from the provision of Section 35B - that any of the amount i.e. either duty, or penalty or fine involved in a particular case is less than ₹ 50,000/- can be disposed of as per the discretion provided under proviso to Section 35B(1). - there is no stage prescribed under the law for exercising the discretion by the Tribunal for disposing of the appeal in terms of proviso to Section 35B(1) - though the amount is less than threshold limit provided in the law but appeal was entertained on merit. However these judgments do not become precedence, the discretionary power provided in proviso under Section 35B(1) can be exercised by the bench depending upon the facts and circumstances of the case. In view of my above discussion, I do not find any apparent mistake in the order - Decided against assessee.
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2015 (10) TMI 2075 - CESTAT MUMBAI
Duty demand - EOU clearances - Appellants were required to pay duty on clearance from the warehouses at the time of such clearance from the warehouse - Held that:- Regarding the clearance of goods to EOU from the warehouse it is seen that the issue is squarely covered by the decision of Tribunal in the appellants own case (2007 (10) TMI 513 - CESTAT, CHENNAI). In the said decision it has been held that clearances to EOU availing full exemption can be made from stock available in the warehouses even after withdrawal of facility under rule 20. The decision cited by the learned AR in case of IBP (2009 (5) TMI 279 - CESTAT, KOLKATA) also supports the view in so much as duty liability is concerned the same arises on the due date of payment of duty as per rule 8 of Central Excise rules, on the 5th of the next month. Relying on the decision of Tribunal in the case of IOL (2007 (10) TMI 513 - CESTAT, CHENNAI) the appeal is allowed in respect of clearances made to EOU availing full exemption from duty.
Regarding the interest on duty paid on clearance of goods from the warehouse in subsequent months, it is noticed that both, the decision cited by the revenue and as well as appellants, support the appellants case. In both the decision is it has been held that the clearances from the warehouses after withdrawal of the facility under the Rule 20 will be governed in terms of the rule 8 of Central Excise rules, in so much as the same will be payable on the 5th of next month. Once it is recognised that the duty liability after withdrawal of the benefit of Rule 20 will be governed by the Central Excise rules as a clearance from warehouse, in terms of Rule 8 of Central Excise rules, the question of payment of interest does not arise. Moreover of Central Excise rules only permitted clearance from the factory to the warehouse without payment of duty. After withdrawal of the facility, the clearance from the factory to the warehouse without payment of duty can be stopped. It does not change the treatment which has to be given to the goods already cleared in terms said rules and lying in the warehouse. Those goods will continue to be governed by the terms under which the same were cleared from the factory. - Decide din favour of assessee.
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2015 (10) TMI 2074 - CESTAT AHMEDABAD
Manufacture - Marketability - process of colour fixation by applying Sodium Silicate - cotton fabric - Denial of exemption claim - Notification No 6/2000-CE dtd 1.3.2000 - held that:- Authorised Representative submitted that the process would not mere colour fixation and it would be dyeing of the fabric. But, the certificate issued by the ATIRA, would supported the case of appellant. We have also noticed that the appellant disputed marketability of the product. The Learned Authorised Representative for the Revenue also countered the application for additional evidences filed the appellant by producing the evidences in the nature of invoices of the other units. Hence, in our considered view, the Adjudicating authority should examine the matter on merit as well as marketability on the basis of the evidences produced both sides. - Matter remanded back - Decided in favour of assessee.
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2015 (10) TMI 2073 - CESTAT AHMEDABAD
Reversal of CENVAT Credit - removal of inputs as such - determination of amount to be reversed - transaction value - Held that:- Show cause notice was issued for the extended period of limitation.There are various Board Circulars on this issue, which was decided by the Larger Bench of the Tribunal in the case M/s Eicher Tractors (2005 (9) TMI 340 - CESTAT, NEW DELHI), as distinguished in the decision of M/s National Engg India Ltd Vs CCE Jaipur I - [2010 (4) TMI 674 - CESTAT, NEW DELHI]. Recently, the Tribunal in the case of M/s Panasonic AVC Networks India Co Ltd (2013 (11) TMI 980 - CESTAT NEW DELHI) passed order on the identical issue following the decision of the Larger Bench which was upheld by the Hon’ble High Court. Thus, the appellant acted on bonafide belief and the demand of duty alongwith interest for the extended period of limitation cannot be invoked. The Learned Advocate submits that the entire demand is barred by limitation. - Impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 2072 - CESTAT NEW DELHI
Denial of CENVAT Credit - Manufacture of capital goods - Held that:- Tribunal failed to appreciate this contention and disallowed the credit. Presently, the credit is claimed as inputs used for manufacturing capital goods and not as capital goods. - CENVAT Scheme is a beneficial legislation and should be given as wider meaning as possible. Inputs mean anything, i.e., put into the stream of manufacture. In the instant case, the contention of appellant is that the Sections, Shapes, Channels, Angles were used for fabrication of moulds. That moulds being specifically mentioned in the definition of capital goods, these items which were used for manufacture of moulds are eligible for credit. It is also the case of appellant that TMT Bar was used for stirring the metal and by its use becomes a constituent of the final product. The requirement of stirring rod in the process of manufacture is undeniable. To establish their contention, the appellants have produced a Chartered Engineer Certificate along with photographs showing the steps of manufacture/fabrication of moulds. This certificate explains the use of the impugned items in manufacture of moulds and also use of such moulds in the appellants industry. - as already stated moulds being specified as capital goods, the inputs used for manufacture of capital goods are eligible for credit. - Decided in favour of assessee.
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2015 (10) TMI 2071 - CESTAT MUMBAI
Valuation - Inclusion of amount recovered by such debit notes - Determination of assessable value - Held that:- Tribunal has directed that it will be appropriate for the adjudicating authority to re-examine the matter in terms of Rule 6 and give an appropriate finding and the matter was remanded for the said purpose. We find from the impugned order that it is not disputed that there was no sale of goods between the Thane unit and Ennore unit. It is also noted in the order that the goods AE-1 and AE-2 were not sold to any independent buyer. Under the circumstances, in our view, the only method to find out the value will be based upon cost of production. We find in the present case the appellant has submitted some certificates during the adjudication. However, these have not been examined by the Commissioner or by the costing expert i.e. Assistant Director (Cost) with reference to the relevant circulars of the Board available at that point of time. - Impugned order set aside - matter remanded back - Decided in favour of assessee.
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2015 (10) TMI 2070 - CESTAT MUMBAI
Valuation - Determination of assessable value - Inclusion of expenditure in developing the art work and plate making charges - Held that:- As explained by the ld. counsel for the appellant that normally they are not charging their customers separately for the art work and development of plates, as these are essential part of printing process and the expenditure done on the items gets included in the charges they collect from their customer for printing or for manufacture of final products. We also note that the art work and development of plate is not being done by themselves but by some other person. If such plates or art work is not being used then we do not find any reason to include the expenditure so made in the assessable value. - Decided in favour of assessee.
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