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Central Excise - Case Laws
Showing 21 to 40 of 1051 Records
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2015 (10) TMI 2613
Remission of duty - Rule 21 of CER, 2002 - imposition of penalty u/r 25 of CER, 2002 - storage loss - destruction of molasses - rejection on the ground that the bursting of the tank was neither due to natural reasons nor unavoidable accident - applicability of Board Circular F. No. 261/15CC/1/80-CX 8, dated 6-2-1982 - Held that: - Government notes that penalty shall be imposed on a manufacturer if he removes goods in contravention of the provisions of the Central Excise Rules and Notifications issued thereunder - In the present case it is an uncontested fact that provisions of Rules 4, 6 & 8 ibid have been violated by the applicant.
The duty is payable on the loss of goods but the same has not been paid. The applicant was liable to take all reasonable steps to safeguard Government revenue involved in the impugned goods and were liable to pay duty on the same which they failed to do. Therefore, provisions of Rules 4, 6 & 8 have been contravened and penalty has been rightly imposed by the original adjudicating authority.
Demand of duty, interest and penalty upheld - revision disposed off - decided against assessee.
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2015 (10) TMI 2609
Valuation - large cooling towers cleared from their factory in knocked down condition and installed at site - appellant's claim that such a large cooling tower cannot come into existence at their factory, hence the parts/components which were manufactured and cleared from the factory are only leviable to duty and not the entire cooling tower comprising both manufactured and bought out items.
Held that: - for earlier period this Tribunal after considering all aspects of the case has directed the applicant to deposit 50% of the duty and proportionate interest pending disposal of the appeal - keeping in view the present trend in the light of amended section 35F of Central Excise act, 1944, in our opinion, it is appropriate to direct the applicant No.1 to deposit 7.50% of the total duty confirmed - appeal disposed off - decided partly in favor of appellant.
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2015 (10) TMI 2594
CENVAT credit - outward transportation of the goods from the appellant's factory to the buyer - denial on the ground that the place of removal in the appellant's case is the factory gate - Held that: - dispute relates to the factual position and requires verification and examination of documents, I deem it fit to set aside the impugned order and remand the matter to the original adjudicating authority for fresh decision - matter on remand - appeal disposed off.
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2015 (10) TMI 2591
Cenvat credit - Interest - Penalty - there are clear evidence that the appellants had been fraudulently taking cenvat credit on the basis of the invoices, against which no goods were received by them - It is noticed that the various suppliers of input confirmed that they had not supplied any defective type or grade "D" material to the appellant - Appeal dismissed.
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2015 (10) TMI 2590
Penalty - Time limitation - Reversal of cenvat credit - Held that: - It is an admitted fact that irregularly availed cenvat credit and subsequently reversal thereof is not attributable to any fraud, collusion, misstatement with intent to evade payment of duty. In such an eventuality, the Department was required to issue the SCN within a period of one year from the relevant date i.e. reversal of cenvat credit -
The Hon’ble Supreme Court in the case of T.V.S. Whirlpool [1999 (10) TMI 701 - SUPREME COURT OF INDIA] have held that period of limitation is not only applicable for the claim of the Principal amount, but has also applicable to the claim of interest thereon - appeal allowed - decided in favor of appellant.
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2015 (10) TMI 2589
Denial of CENVAT credit - repair and maintenance service during warranty period - Held that: - The issue has been settled by this Tribunal in the case of Commissioner of Central Excise, Vadodara II Vs. Danke Products [2009 (7) TMI 137 - CESTAT, AHMEDABAD] wherein it has been held that repair and maintenance of transformers during warranty period is an activity of relating to sale of goods. Therefore, relying on the decision of the Tribunal in the case of Danke Products, I hold that the appellant is entitled for input service credit on repair charges paid to the dealers by the appellant as the same is an activity relating to sale of goods by the appellant - appeal allowed - decided in favor of appellant-assessee.
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2015 (10) TMI 2586
CENVAT credit - 100% EOU - manufacture of Polypropylene Multi Filament Yarn, falling under Chapter 54 of the First Schedule to the Central Excise Tariff Act, 1985 - Rule 3 (7)(a) of the Cenvat Credit Rules, 2004 - Held that: - N/N.23/2003-CE dated 31.02.2003 permits the EOU Units for payment of Central Excise Duty equivalent to the special additional duty leviable under Section 3 (5) of the Customs Tariff Act, 1975. The payment of duty under the prescribed rate is subject to fulfilment of condition that the goods supplied to the units in DTA are not exempt from payment of tax levied by the State Government.
In the present case, it is a fact on record that the goods were supplied by M/s. Reliance Industries Ltd. a 100% EOU Unit to the appellant on payment of Central Sales Tax (CST) levied and collected under the Sales Tax Statute. Since, supply of goods from M/s. RIL to the appellant has suffered payment of CST, in my opinion, the appellant falls under the purview of Sl.No.1 of Notification dated 31.02.2003. Thus, the formula prescribed in Rule 3 (7) (a) of the Cenvat Credit Rules, containing the stipulation for taking of cenvat credit will have no application and the appellant will be entitled for the full cenvat credit of Central Excise duty paid and reflected by the EOU unit in its invoices. I also find that condition No.2 itemized in the Notification dated 31.02.2003 is subject to observance of the procedures laid down in Clause (a), (d), (e) and (g) of paragraph 6.8 in the Foreign Trade Policy- 2004-09. However, in the present case, since the supplier M/s. Reliance Industries Ltd. has opted for payment of duty under the conditions itemized in clause (h) in the FTP (supra), the case squarely falls under Sl.No.1 in the said Notification, for which the embargo/restriction created in the Rule 3 (7) (a) of the cenvat credit rule will have no application.
I am of the considered opinion that the impugned order is not legally sustainable. Therefore, the same is set aside and the appeal is allowed in favour of the appellant.
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2015 (10) TMI 2585
Manufacture - Acetic Anhydride - hazardous chemical - The repacking of the said goods from the bulk packs, to retail packs - Held that: - we hold that the appellant is not engaged in repacking from bulk packs to retail packs. Neither the appellant is packing the goods in retail packs and neither adopting any of the treatment to retail sale to the consumer. As such, we hold that the provisions of Note 11 of Chapter 29 of CETA, 1985, are not attracted. we also hold that under the facts and circumstances, there is no concealment of facts, contumacious conduct et cetera on the part of the appellants and as such extended period of limitation is not attracted in this case. Accordingly, the impugned orders are set aside - appeal allowed - decided in favor of appellant-assessee.
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2015 (10) TMI 2584
Denial of cenvat credit alongwith interest and imposition of penalty - Dises - Held that: - The appellants had taken 100% cenvat credit on Dises instead of 50% of cenvat credit in the same financial year and the balance 50% of cenvat credit are to be taken in any financial year, subsequent to the financial year in which the capital goods are received - the demand of cenvat credit alongwith interest on this issue is justified.
Denial of cenvat credit on plastic crates/ bins used for outward transportation of the final product - Held that: - The appellant contended that the value of plastic crates/bins cleared alongwith the final products, was included in the value of the final product. Hence, there is no reason to deny the cenvat credit on this issue.
Demand of interest on payment of the differential duty on supplementary invoices raised due to enhancement of the Assessable value with retrospective effect on the excisable goods manufactured and cleared by the appellant - Held that: - I find that this issue is decided by the Hon’ble Supreme Court in the case of CCE, Pune vs. SKF India Ltd., [2009 (7) TMI 6 - SUPREME COURT], where it was held that it is to be noted that the assessee was able to demand from its customers the balance of the higher prices by virtue of retrospective revision of the prices. It, therefore, follows that at the time of sale the goods carried a higher value and those were cleared on short payment of duty. The differential duty was paid only later when the assessee issued supplementary invoices to its customers demanding the balance amounts. Seen thus it was clearly a case of short payment of duty though indeed completely unintended and without any element of deceit etc. The payment of differential duty thus clearly came under sub-section (2B) of section 11A and attracted levy of interest under section 11AB of the Act.
The impugned order is modified in so far as demand of cenvat credit alongwith interest is set aside. As the issues involved are interpretation of the provisions of law, penalty is set aside. The appeal field by the appellant is partly allowed - decided partly in favor of assessee.
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2015 (10) TMI 2571
100% EOU - export of Pan Masala, Gutkha and Tobacco across the globe - production to be sold or released in the local market in India - exemption from operation of the Plastic Wastes (Management and Handling) Rules 2011 - Held that: - It is evident that a Writ Petition under Article 32 of the Constitution filed by Baba Global Ltd. has been finally disposed of by permitting the 100% export of Pan Masala, Gutkha and Tobacco in multilayered plastic sachet; and in Harsh International interim orders have been passed exempting the Writ Petitioner from the operation of the said 2011 Rules - Petitioner No. 1 shall be exempted from the operation of the Plastic Wastes (Management and Handling) Rules, 2011
During the pendency of the present proceedings, the Petitioner shall stand exempted from the operation of the 2011 Rules on the understanding that it shall strictly abide by all the terms contained in the Undertaking furnished by it in terms of its Affidavit dated 28th July, 2015
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2015 (10) TMI 2570
Stay application - duty demand - appellant filed the present appeal contending that subsequent to the order of the Tribunal dated 21st April, 2014, the financial status of the appellant company has deteriorated and that it has become a sick industry and alternatively the appellant may be permitted to comply with the pre-deposit of the order of the Tribunal by utilizing the CENVAT credit that is availabl - Held that:- Upon considering, we find that even though these assertions were raised by the appellant in their written submissions, which has been treated by the Tribunal as a Misc. application, no consideration on these aspects have been indicated by the Tribunal in the impugned order.
We, accordingly, dispose of the appeal directing the appellant to make a fresh application bringing these facts before the Tribunal within four weeks from today. If such an application is filed for modification of the order of the Tribunal dated 21st April, 2014, the same shall be dealt with and appropriate orders would be passed within four weeks thereafter after giving an opportunity of hearing to the appellant.
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2015 (10) TMI 2568
CENVAT credit on capital goods - Rule 6(4), with effect from 01.3.2003 - Notification No.8/2002-CE dated 1.3.2002 - Rule 57Q of erstwhile Central Excise Rules, 1944 - The first negative that is used in Rule 6(4) is that no CENVAT Credit shall be allowed on capital goods which are used exclusively in the manufacture of exempted goods. What follows the first part of the Rule 6(4) is the second negative, in the sense that the ineligibility to claim CENVAT Credit stipulated in the first part of Rule 6(4) is negatived or offset by what follows - What is clearly decipherable from the use of the expression "final product" and the definition of the expression "final product" is that the Rules do not make a distinction between a main product and a by-product - There is no dispute about the fact that these three products, namely soap stock, acid oil and wax were dutiable even on the date on which the appellant received the capital goods, namely April 2002 to March 2003 - to interpret Rule 4(2)(a) in a manner that will benefit a person, who receives the capital goods on the date, on which, the goods to be manufactured were dutiable, despite the same goods becoming exempted goods on the next day, but to deprive the benefit to a person, who manufactures dutiable goods on the basis of the capital goods received in a particular financial year, would not be a proper interpretation to the Rules - Decided in favor of the assessee.
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2015 (10) TMI 2565
Cenvat credit - Penalty - Held that: - the disputed goods have been used by the appellant for repair, maintenance and fabrication of the machines/ machineries installed in the plant - From the purchase requisition slips available in the file that the appellant had clearly mentioned the requirement of the disputed goods for the intended purpose i.e. for repair and maintenance of various machines, namely, kiln, Clinker stock pipes etc - ven assuming that the disputed goods cannot be considered as capital goods, still I am of the view that the same shall be considered as input for the purpose of taking cenvat credit in view of the unambiguous definition of input contained in Rule 2(k) of the Cenvat Credit Rules - Decided in favor of the assessee.
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2015 (10) TMI 2562
Denial of Cenvat credit - Rule 3 of the Cenvat Credit Rules - Held that: - Since the supplier of bright bar are duly registered with the Central Excise Department and discharged appropriate duty liability on the said goods, in my opinion, cenvat benefit cannot be denied to the recipient manufacturer, the appellant in the present case - Decided in favor of the assessee.
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2015 (10) TMI 2549
Clearance of goods without payment of duty - invoices supplied to buyer without supplying the goods enabling the buyers to avail Cenvat credit on the strength of invoices - availing of CENVAT credit fraudulently - SSI exemption - whether demand of interest u/s 11AB of the Act justified? - Held that: - during the impugned period, provision of Section 11AB of the Act were not in force which were introduced with effect from 28-9-1996 and the period involved is prior to that date. Therefore, the demand of interest confirmed against the appellant is set aside as there was no provision to demand interest during the relevant time.
Imposition of penalty u/r 173Q of the Erstwhile Rules - Held that: - I have gone through the provisions of Rule 173Q wherein for certain contravention by the assessee, the goods are to be held liable for confiscation and thereafter penalties are imposable. I have gone through the impugned order wherein the goods are not held liable for confiscation and penalty have been imposed on the appellant. Further, I find that no specific clause of Rule 173Q has been mentioned in the impugned order to impose penalty on the appellant. Therefore, relying on the decision of Hon’ble Apex Court in the case of AMRIT FOODS Versus COMMISSIONER OF CENTRAL EXCISE, UP. [2005 (10) TMI 96 - SUPREME COURT OF INDIA], I hold that penalty under Rule 173Q of the Rules is not imposable on the appellant.
Demand of interest and penalty not sustainable - appeal allowed - decided in favor of appellant.
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2015 (10) TMI 2547
Demand of duty with interest - related person - laundry soap - whether the duty be levied and exemption notification withdrawn on the ground that the director of M/s. Washwell Soap (P) Ltd. is relative of the proprietor of the appellants and they are related person - Held that: - Both concerns are owned by close family relations. Shri Devilal Somani, proprietor of Devilal Kutir Soap, his wife and his father Shri Ladu Ram Somani are directors of M/s.Washwell Soap Pvt.Ltd. It is seen stated that Shri Devilal Somani had relinquished the directorship of M/s. Washwell Soap (P) Ltd. on 1.6.1999. Be that as it may, there is no evidence placed to bring out any mutuality of interest between two concerns to treat them as related persons.
Commonness of the directors or even one or two directors being relatives of the director/partner of other concern cannot make the two as related persons unless there is evidence of mutuality of interest of two concerns, or interest of one in the business of the other.
There is no categorical statement in the declaration that they are related persons. Moreover, the department has not carried out any investigation to ascertain whether there is mutuality of interest - the demand of duty, interest and penalties are unsustainable - appeal allowed - decided in favor of appellant.
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2015 (10) TMI 2542
CENVAT credit of NCCD - manufacture of chewing tobacco, falling under Chapter sub-heading No.2404.41 of the Central Excise Tariff Act, 1985 - unbranded chewing tobacco purchased from M/s.United Tobacco Co., who availed the benefit of SSI exemption, who on bonafide belief did not pay NCCD. Therefore, the Central Excise Duty not charged in the invoices issued to the appellant - NCCD duty paid on demand by supplier and issued supplementary invoice to the appellant. The appellant took cenvat credit of NCCD in its books, which were denied by the Department on the ground that the supplier M/s.United Tobacco Co. was not registered manufacturer, and as such, taking of cenvat credit on the basis of the invoices issued by the unregistered manufacturer is not in conformity with the cenvat statute - whether, the credit can be denied on the ground that the supplier M/s. United Tobacco Co. at the time of supply of goods was not registered with the Central Excise Department, admitting the fact and the position that the NCCD was paid by the supplier, after getting itself registered with the Central Excise Department.?
Held that: - Rule 3 of the Cenvat Credit Rules, 2001 permits a manufacturer to take cenvat credit of various duties paid on the inputs and capital goods received in the factory. In clause (v) of Rule 3, it has been specified that National Calamity Contingent Duty (NCCD) leviable under Section 136 of the Finance Act, 2001 is permitted for availment of cenvat credit. Further, Rule 7 of the said rules prescribed the documents based on which cenvat credit can be taken by the manufacturer. In sub-rule (2) of Rule 7 of the said Rules, supplementary invoice has been recognized as the valid document for taking Cenvat credit.
The decision in the case of Jayashree Aluminium & Alloys vs. CCE, Chennai [2012 (10) TMI 36 - CESTAT, CHENNAI] relied upon where it was held that if the condition regarding receipt and utilization and the duty paid character of the goods are not in dispute, the credit cannot be denied on the ground that the supplier of the goods was not registered with the Central Excise Authorities at the time of supply of goods.
Credit cannot be denied - appeal allowed - decided in favor of appellant.
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2015 (10) TMI 2539
Denial of CENVAT credit on input - demand of duty with interest - imposition of penalty - pig iron - registration certificate of the dealer has been cancelled on 19.02.2008 with retrospective effect - dealer found to be non existent - Held that: - Cenvat Credit cannot be denied to the appellant on the basis of deficient investigation.
No investigation was conducted at the end of the appellant to ascertain they have received the goods or not. Revenue has not made any investigation at the end of the manufacturer supplier of the goods. No investigation was conducted at the transporter of the goods or at the premises of the appellant to reveal the truth. No cross examination of the registered dealer was granted to the appellant to reveal the truth.
CENVAT credit cannot be denied - appeal allowed - decided in favor of appellant.
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2015 (10) TMI 2531
Refund claim - unjust enrichment - excess Central Excise duty has been wrongly paid by appellant - appellant was required to deposit Central Excise Duty at the rate of 5%, whereas due to inadvertence, excess duty of ₹ 10% was deposited into the Government Account - Held that:- it is found from the available records that upon verification of the Balance-Sheet and the annual accounts, the practicing Chartered Accountant vide Certificate dated 14.09.2012 has certified that the incidence of excess paid Central Excise Duty has not been passed on to any other person and the same has been borne by the appellant. Therefore, the refund claim cannot be rejected on the ground of doctrine of unjust enrichment. - Decided in favour of appellant with consequential relief
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2015 (10) TMI 2529
Cenvat credit - conference charges - nexus with the manufacture of final product - Held that:- the disputed services on which the cenvat credit has been taken by the appellant are relating to the business activity which is evident from the documents available in the record. Further the services availed by the appellant are relating to sales promotion activities which fall under the definition of input service contained in Rule 2(l) of the Cenvat Credit Rules. It is found that this Bench of the Tribunal in the case of Ultratech Cement Ltd. vs CCE Jaipur-I [2015 (11) TMI 607 - CESTAT NEW DELHI], in an identical set of facts has allowed the cenvat benefit on the disputed services. Therefore, in view of the same the impugned order denying the benefit of cenvat credit is not legal and proper, and thus, the same is set aside. - Decided in favour of appellant
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