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Central Excise - Case Laws
Showing 161 to 180 of 1051 Records
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2015 (10) TMI 2069 - CESTAT CHENNAI
Transfer of unutilized credit of SAD from one unit to other unit as per the provisions of Rule 10A - Held that:- impugned order has dealt the issue in detail and came to the conclusion and held that there is no dispute on the eligibility of transfer of unutilized credit under Rule 10A of CCR and held that the appellants complied the conditions of the notification. Only ground on which it was denied is that whether such transfer of credit can be only after 01.07.2012 i.e. at the beginning of the quarter as stipulated in the notification. We find that Rule 10A which is self-contained provision introduced for transfer of credit of AED (SAD) and it has prospective effect. Once it is came into effect from 01.04.2012, transfer of unutilized credit from one unit to other unit is automatically permissible and the Rule also specifies that such transfer should takes place at the end of the quarter, which is in our opinion has prospective effect and only permissible at the end of a quarter. In the present case, as seen from the records, unit-II which was defunct and the credit remained unutilized was correctly transferred on 31.05.2012, immediately after introduction of Rule on 01.04.2012, as they are eligible to transfer the same from 01.07.2012. Even though they have transferred the credit on 31.05.2012, they have not utilized the entire credit and only ₹ 2.5 Crores was utilized before 01.07.2012. The said Rule 10A came into effect from 01.04.2012 and the credit which was already accumulated and remained unutilized prior to the amendment rightly can be transferred after 01.04.2012. In view of the above, we hold that the appellants are eligible for transfer of unutilized credit from unit-II to Unit-I and the transfer of the credit done by the appellant is in conformity with the provisions of Rule 10A, which was specifically introduced only for this purpose relating transfer of unutilized credit availed on SAD (AED). - Decided in favour of assessee.
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2015 (10) TMI 2068 - CESTAT MUMBAI
Valuation of goods - Non inclusion of packing material - Held that:- special packing provided by them to the buyer is in the nature of secondary packing not includable in the assessable value. In order in appeal the Commissioner has observed that cost of all packing is includable in assessable value. - Since the nature of the special packing, claim to be secondary packing by the appellants, has not been disputed in the order in appeal, it has to be treated as secondary packing. - Since cost of secondary packing not ordinarily used and given specially at the request of customer, is not includible in the assessable value, the benefit of exclusion of the cost of special packing as a secondary packing has to be allowed to the appellant in terms of Section 4 of the Central Excise Act. - Decided in favour of assessee.
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2015 (10) TMI 2067 - CESTAT NEW DELHI
Clandestine removal of goods - Non maintenance of proper accounts - Held that:- he officers do not have a case that there was any irregularity in the accounts maintained by the appellants. According to appellants they paid the duty only because the officers assured them that there would be no action against them and that they could apply for refund. The facts presented by the case reveal that after making the appellants pay the duty, the payment of duty has been taken as the basis for issuing the Show Cause Notice. There is no iota of evidence to establish that the appellants had in any manner connived with VWPPL. Only because they had taken one consignment from VWPPL they have been put into the whole ordeal. The learned counsel for appellants submitted that the appellants have a good reputation and maintain records and pay duty. There has been no instance of allegations. That even though the amount involved may be small, it affects their reputation. These submissions do have substance. Further, the SCN is issued alleging evasion of duty and clandestine removal of goods. Whereas the order passed confirms the demand under wrongful availment of Cenvat Credit. Such an order at the outset in unsustainable. The first appellate authority ought to have considered these aspects without putting the appellant to further hardships of litigation. I find that the appellants have been able to establish a case in their favour. - Decided in favour of assessee.
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2015 (10) TMI 2066 - CESTAT CHENNAI
Admissibility of cenvat credit - Various services - Held that:- In regard to the outdoor catering, the Hon’ble High Court of Madras in the case of M/s. Turbo Energy Ltd. (2015 (3) TMI 632 - MADRAS HIGH COURT), in various CMAs allowed the assessees CMA and rejected the Revenue miscellaneous petitions and held that the outdoor catering service is eligible for cenvat credit. In regard to the Xerox machine and subscription charge, insurance charges, etc., we find that all these are related to the manufacture of final products, the Hon’ble Allahabad High Court in the case of HCL Technologies (2014 (11) TMI 663 - ALLAHABAD HIGH COURT), dismissed the revenue appeal and upheld the Tribunal order allowing the subscription of magazines. In the present case, the appellants have subscribed to the Indian Institute of Welding, Kolkata. This Tribunal in the case of Axles India Ltd. (2015 (1) TMI 505 - CESTAT CHENNAI), wherein the issue inclusive definition of Rule 2 (l) of CCR and relied various High Court decisions and rejected the Revenue appeal. By following the ratio referred above, we hold that the appellants are eligible for cenvat credit for all the services. Accordingly, the impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 2065 - CESTAT NEW DELHI
Valuation - Inclusion of amount of sales tax retained - Held that:- During the relevant period there was CBEC Circular dated 30.06.2000 which provides that any amount of concession on sales tax retained by the respondent is not required to be added in the assessable value and there are certain judicial pronouncements of this Tribunal holding the same view in the case of Kinetic Engineering Ltd. (2012 (6) TMI 168 - CESTAT, MUMBAI) and Life Long India Pvt. Ltd. Vs. CCE Delhi-[2012 (3) TMI 349 - CESTAT NEW DELHI]. As there were view taken by the CBEC Circular and this Tribunal in favour of the respondent which has been negated by the Hon'ble Apex Court in the decision cited before us today. In these circumstances, we hold that extended period of limitation is not invokable. Consequently, demand pertaining to the extended period of limitation which is sought to be demanded from the respondent are set aside. Consequently, the penalties on the respondents are not imposable. - Matter remanded back - Decided in favour of assessee.
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2015 (10) TMI 2064 - CESTAT AHMEDABAD
Valuation of goods - whether the amortized value of Tonner/Cylinder supplied to the respondent free of charge by the customer for filling the Liquid Chlorine manufactured by the respondent, is to be included in assessable value of goods Liquid Chorine cleared by the respondent to the customers. - Held that:- Commissioner (Appeals), in the impugned order had observed that the respondent while clearing Liquid chlorine manufactured by them to their customers in the tonners/cylinders supplied by the later and there is no allegations/findings that the conditions laid down under Section 4(1)(a) of the Central Excise Act 1944 had not been satisfied. Hence, that the ground taken by the Revenue in the appeal can not be sustained. The revenue also not placed any material on such allegations before the Tribunal. - Tribunal in the case of M/s Grasim Industries Ltd (2003 (12) TMI 101 - CESTAT, NEW DELHI) had referred the decision of the Hon’ble Supreme Court in the case of M/s Grasim Industries Ltd [2009 (7) TMI 155 - SUPREME COURT OF INDIA] . In the case of TCP Ltd (2007 (7) TMI 199 - CESTAT, CHENNAI) the issue involved is the inclusion of the packing charges in the assessable value of the cylinder supplied by the buyers, which is similar to in the present appeal. - No reason to interfere the orders of the Commissioner (Appeals). - Decided against Revenue.
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2015 (10) TMI 2063 - CESTAT CHENNAI
Availment of Cenvat credit - capital goods not installed in the appellants premises but installed at other units doing Job work - No intimation, No permission from the department - Held that:- Lower Authority has relied on the Supreme Court's decision in the case of M/s. Vikram Cements [2006 (2) TMI 1 - Supreme court]. There is no dispute on the fact that the respondents were discharged the central excise duty on the finished goods which were cleared by the main unit. The impugned order clearly brought out the fact that both the units were carrying out the job work and no finished goods were cleared from the unregistered units. The Hon'ble High Court in the case of HabasitIakoka Pvt. Ltd. (2011 (2) TMI 1345 - MADRAS HIGH COURT) on identical issue allowed cenvat credit on the capital goods installed in unregistered premises and used in the manufacture of the final product. - Ratio of the above decision squarely applicable to the present case as the capital goods were installed in the adjacent unregistered premises and used for job work of main unit and finished goods were cleared from the respondent's main unit on payment of duty. By respectfully following the decision of the Hon'ble High Court above, I do not find any infirmity in the order of the Commissioner (Appeals) in allowing the credit on the capital goods. Accordingly, the impugned order upheld - Decided against Revenue.
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2015 (10) TMI 1993 - CESTAT KOLKATA
Denial of refund claim - subsequent revision in the price after removal of goods - sale of petrol and diesel, to Oil marketing Companies (OMCs) - whether the Appellants are entitled to the refund of excess duty paid during the period from April, 2003 to January, 2004 - reduction of freight charges from the transaction value - Held that:- Department itself has gone on a wrong premise from the very beginning, inasmuch as it was considered that the difference in the transaction values was on account of the freight charges between the factory gate and the place of delivery of the goods by the respondents. Both Revenue as well as the respondent have not disputed the fact of sale of the petroleum products were under the Multilateral Product Sale-Purchase Agreement dated 31st March, 2002.
It has been mutually agreed that in case of sale from North Eastern Region, the basic price be reduced by an amount equivalent to the notional freight, which in our opinion, does not refer to incurring of actual freight. It is evident that the Respondent had initially paid the duty on the basic price without deducting the notional freight element from the price, but after realization of the mistake, filed the refund claim. We do not find any reason to dis-agree with the conclusion arrived at by the ld. Commissioner (Appeals). Accordingly, the Respondent in principle are entitled to the refund claim. - Decided in favor of assessee.
The issue of correctness or otherwise of the transaction value determined on the basis of the said Agreements, which is neither raised in the demand notice nor in the grounds of appeal, cannot be re-opened at this stage, which would otherwise result into traveling beyond the scope of the show-cause notice as held by the Hon'ble Supreme Court in the case of Champdany Industries Ltd. [2009 (9) TMI 7 - SUPREME COURT OF INDIA]. - Decided in favor of assessee.
Both sides agree that it is necessary to ascertain the fact whether initial transaction value was higher and subsequent transaction value after deducting the notional freight, applying clause 5.4 of the agreement, became lower before allowing the said claim to the respondent. - For the limited purposes of verification of this fact, in our opinion, it is prudent to remand the case to the adjudicating authority, who shall ascertain the said facts after taking into consideration all the evidences on record and the evidences that would be produced by both sides. Needless to mention, a reasonable opportunity of hearing be granted to the Respondent-assessee - Matter remanded back - Decided partly Revenue.
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2015 (10) TMI 1992 - CESTAT MUMBAI
Valuation of goods - Inclusion of cost of copyrights - manufacturing of recorded audio and video compact discs (RCDs) / production of duplicate CDs - assessee is in no position to manufacture RCDs without the DAT/master supplied by the music companies / merchant manufactures and that they are in no position to sell such RCDs to any other person/company, since all copy rights are vested with the particular music company / merchant manufacturer - Held that:- In the case of KRCD (I) Pvt. Ltd. Vs. CCE,Mumbai [2015 (4) TMI 856 - SUPREME COURT], it is held that royalty payable for such music/picture cannot extend to art work that is necessary for the production of duplicate CDs, as no part of it is in fact taken into account by either the distributor who is the copyright holder or the appellant in the job work done by the appellant. - Central Excise Valuation (Determination of Price of Excisable Goods) Rules of 2000, go to show that the value of goodwill contained in a brand name would not form part of the assessable value of goods that are produced and sold only to the owner of the goodwill - Following the same, Decided in favour of assessee.
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2015 (10) TMI 1991 - CESTAT NEW DELHI
MRP based Valuation u/s 4A or transaction value u/s 4 - whether the goods supplied to the distributor in wholesale packages are liable to be assessed under section 4(A) of the Central Excise Act 1944 or not - Held that:- As per the definition of multi piece packages and the definition of wholesale packages, we find that sub clause 2(x) of the standard of Weight and Measures (Package Commodities) Rule 1977 is applicable to the facts of this case, as the fasteners are sold by the appellant to wholesaler in bulk enabling the wholesaler to sell distribute or deliver such fastener to the consumer in smaller quantity.
As per Rule 29 of the said rules the appellant were not required to affix MRP on the product which were cleared as wholesale packages, therefore, the provisions of the SWM (PC) Rules are not applicable to the facts of this case which is squarely covered by the guidelines issued by the Hon'ble Apex Court in the case of Jayanti Food Processing (P) Ltd. (2007 (8) TMI 3 - Supreme Court). In these circumstances, we hold that appellant has correctly valued their goods sold to the wholesaler in wholesale packages and valued as per section 4 of the Central Excise Act 1944 i.e. transaction value - Decided in favour of assessee.
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2015 (10) TMI 1990 - CESTAT NEW DELHI
Valuation of goods - Captive consumption - duty to be levied on the basis of 110% of the cost of production - Determination of assessable value - Clearances of de-natured rectified spirit - Held that:- prima facie, the expenses on account of salaries and wages, direct expenses, depreciation, works over heads and administrative over heads are to be absorbed in cost on the basis of the normal capacity utilization, as in the present case the actual production was much lower than the production based on the normal capacity utilization and prima facie, this is what the appellant had done. However, we find that there are considerable expenses each year on utilities which in terms of the para 5.9 of the CS Format guidelines are to be treated as variable over heads and the cost of variable over heads is to be absorbed in costing based on the actual captive utilization while this is the cost of utilities have been absorbed by the appellant on the basis of normal capacity utilization which prima facie is not correct and on this point, the department has a case.
Therefore, out of the total duty demand confirmed by the Commissioner in our prima facie view, at least, the duty demand based on the absorption of cost of utilities in the costing may be upheld. As regards, the plea of the Appellant regarding Revenue, the neutrality, prima facie we are not convinced with this plea. In view of the above discussion we are of the view that this is not the case for total waiver. - Partial stay granted.
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2015 (10) TMI 1989 - CESTAT MUMBAI
Valuation - Inclusion of cost of advertising - held that:- There has to be written agreement with an enforcement clause to enforce the legal right to insist on advertisement under the agreement. In the absence of any such agreement with such a clause then in that event, the advertisement expenses incurred by the dealers on their own account cannot be added to the account of the assessee. - It is clear that what has been held is that unless purchase and distribution of such material by dealers is mandatory, the value of the same can not be added. Further more the transaction value will only contain the amounts collected in connection with sale of excisable goods. Every amount collected by the manufacturer from the buyer is not includible. Revenue has not been able to establish from fact that the amounts collected were in connection with sale of excisable goods. The respondents have clearly stated that the diaries and calendars are made and supplied at the request of dealers and it is not mandatory since only few dealers are buying these things - Decided against Revenue.
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2015 (10) TMI 1988 - CESTAT AHMEDABAD
SSI Exemption - clearance of the goods, bearing in the brand name of the loan licensees - Clubbing of clearances - Held that:- assessee paid the duty on the goods bearing brand name of the loan licensees. - Duty paid on the branded goods is more than duty now being demanded, should neutralize entire demand required to be verified and matter was remanded. - In the case of Pharmanza (India) (2009 (1) TMI 556 - CESTAT, AHMEDABAD), the Tribunal dropped the demand for the extended period of limitation on the identical situation. Hence, we do not find any merit in the appeal filed by the Revenue. As there is no suppression of fact, penalty imposed under Section 11 AC cannot be sustained. - Matter remanded back - Decided in favour of Revenue.
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2015 (10) TMI 1987 - CESTAT MUMBAI
CENVAT Credit - duty paid documents - CVD paid on capital goods - Job work - manufacture of exempted goods using capital goods by the Job worker - Held that:- On merits itself, the demands are not sustainable. It is not under dispute that the goods were imported and CVD was paid. The respondent-assessee has produced the triplicate copy of the bill of entry at the time of taking the credit. It is only after the audit was done that the said copy was not available. We also note that installation certificate was issued by the Superintendent after visiting the factory and seeing the bill of entry etc. Under the circumstances, the view taken by the Commissioner is correct. Similarly, we find that no case has been made by the Revenue that the respondent has used the machine exclusively for the manufacture of exempted goods. The respondent was manufacturing the goods on job work basis, which were not exempt but were dutiable and duty was paid by their customer. In any case, we find that the said machines were removed from their Aurangabad plant on reversal of the entire amount of the cenvat credit taken on the capital goods and in view of the fact that the entire amount of cenvat credit was reversed only later on, nothing survives in the matter - Decided against Revenue.
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2015 (10) TMI 1986 - CESTAT MUMBAI
Manufacture of aluminium circles as intermediate product - marketability of aluminium circles - Manufacturer of aluminium utensils as finished goods - Benefit of Notification No.6/2000-Sr.No.206 - Confiscation of goods - Imposition of redemption fine and penalty - Held that:- It is not under dispute that the appellant themselves were purchasing such aluminium circles from the market. This itself shows that the goods are marketable. We, therefore, do not find any strength in the submissions of the appellant that the goods produced are not marketable. - Demand confirmed invoking extended period of limitation with penalty u/s 11AC - Amount of redemption fine reduced - Penalty on the partner of the firm reduced - Decided partly in favour of assessee.
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2015 (10) TMI 1985 - CESTAT NEW DELHI
Remission of duty - Goods destroyed in fire accident - Non intimation to the Department within 24 hrs - Appellant failed to take necessary steps to avoid fire accident - Appellant has not produced the evidence whether they have availed the duty element in the claim from Insurance company or not - Held that:- fire continued from 17th to 18th April 2002. Only on 19th April 2002 appellant could have intimated to the Department but inadvertently they failed to intimate the Department. As 20th and 21st April were holidays, therefore, appellant could intimate to the Department only on 22.04.2002. Not giving intimation on 19th April will not be fetal for claim of remission of duty when it is the fact on record that fire took place in the premises of the appellant. Therefore, claim of remission of duty cannot be denied on this ground.
In the fire accident the factory building, capital goods and all excisable goods have been lost. No prudent men would invite fire accident to avoid payment of excise duty. It is a fact on record that fire accident took place due to short circuit in electric wire. The, short circuit in electric wire is not in the hand of a man who could avoid such accident. Therefore, it cannot be the reason that appellant failed to take necessary steps to avoid fire accident. Therefore, on this ground also claim of remission of duty cannot be denied.
Appellant has produced the document on record that insurance company has not sanctioned the amount of duty as claim of insurance to the appellant. In these circumstances, it cannot be said that appellant has received duty element in their insurance claim. Therefore, on this ground also claim of remission of duty cannot be denied. - appellant is entitled for claim of remission of duty. Consequently, demand of duty along with interest cannot be confirmed against the appellant and consequently, penalty is not imposable - Decided in favour of assessee.
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2015 (10) TMI 1984 - CESTAT MUMBAI
Reversal of Cenvat / Modvat Credit - Removal of Capital goods after use - Transfer of credit - Penalty under Rule 25 of the CER 2002 - Held that:- Rule 3 (5) of the Cenvat Credit Rules, 2004 provides for the reversal of Cenvat Credit only when the goods are removed as such . In the facts of the case as admitted, the goods have been used for about 10 years. Thus, the goods are not removed as such , no credit is required to be reversed. Further, in the second proviso to Rule 3 (5), wherein it was provided that 2.5% allowance of the credit taken, is to be given for each quarter of use. Under the facts and circumstances, the appellant is held to be entitled to 100% rebate on this count also - Decided in favour of assessee.
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2015 (10) TMI 1983 - CESTAT AHMEDABAD
Area based exemption - refund of duty paid in cash - revenue contended that cenvat credit availed on GTA service was not available and therefore to be reduced from refund claim - Benefit of Notification No. 39/2001-CE dated 31.07.2001 - Held that:- Benefit of exemption notification would be extended on the condition that manufacturer first utilise the whole of credit available to them and pays only balance amount by cash, which is refundable. In the instant case, according to the adjudicating authority, the Respondent is not eligible to utilise the CENVAT credit for payment of GTA services for outward transportation services. We find, this issue is no more res-integra in view of the decision of the Hon'ble Gujarat High Court in the case of CCE & Cus. vs. Parle Products Pvt. Limited [2010 (6) TMI 228 - Gujarat HIGH COURT]. The other issue is that the adjudicating authority disallowed CENVAT credit utilised for outward transportation. No proceeding was initiated against the denied cenvat credit and Commissioner (Appeals) observed that the exemption notification would apply only in respect of utilisation of the CENVAT credit. It is further observed that if at all, there is a case of wrong utilisation of CENVAT credit, right course of action would have been initiation of proceedings under the provisions of Central Excise Act, 1944 read with Cenvat Credit Rules, 2004. There is no dispute that, no proceeding was initiated for deduction of CENVAT credit, therefore, benefit of the exemption notification can not be denied. - No reason to interfere the order of the Commissioner (Appeals). - Decided in favour of assessee.
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2015 (10) TMI 1982 - CESTAT AHMEDABAD
Area based exemption - Refund claim of duty paid in cash - Commissioner (Appeals) excluded the reversal of CENVAT credit on inputs, cleared as such, which is part of the notification. - Held that:- Refund is eligible on the specified goods appeared in annexure to the said notification, cleared from a unit located in Kutch district of Gujarat from so much of the duty of excise or the additional duty of excise, as the case may be leviable thereon, as is equivalent to the amount of duty paid by the manufacturer of goods other than the amount of duty paid by the utilising CENVAT credit under Cenvat Credit Rules, 2001. We find that refund of duty would be related to the specified goods cleared by the manufacturer. The Commissioner (Appeals) observed that value of the inputs cleared as such cannot be clubbed value of excisable goods manufactured and cleared by the assessee for arriving at the aggregate value of clearance for extending the benefit of exemption notification. We find that on plain reading of notification, there is no indication that value of the inputs cleared as such would be included in the aggregate value of clearance for the purpose of availing the benefit of exemption notification. - there is no reason to interfere the order of Commissioner (Appeals). - Decided against Revenue.
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2015 (10) TMI 1980 - CESTAT KOLKATA
Utilization of CENVAT Credit - GTA Service - Imposition of penalty - Held that:- Soon after being pointed out by the CERA audit, the appellant had discharged the Service Tax on GTA services availed through TR-6 challan and also the interest on such amount of service tax. On going through the orders of the adjudicating authority as well as the ld. Commissioner (Appeals), I do not find any reasoning/ observation whereby it could be inferred that the appellant had deliberately defied the provisions of law in discharging the service tax. On the other hand, now it is a settled position of law that the liability for payment of service tax towards GTA service under the relevant provisions could be discharged from the CENVAT Credit account. In the result, imposition of penalty on the Appellant is devoid of merit, accordingly the order impugned to the extent of imposition of penalty is set aside. - Decided in favour of assessee.
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