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Central Excise - Case Laws
Showing 21 to 40 of 375 Records
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2015 (11) TMI 1660
Shortage of finished goods and raw material - case of appellant is that the shortage quantity were not removed from the factory and were available in the factory during the course of stock taking. Thus, in absence of removal of goods, confirmation of the duty demand is not proper and appropriate - Held that: - total weight found during the course of stock taking by the Central Excise officials was in the higher side than those recorded by the appellant in its daily stock account. Since the goods were found in excess in comparison to the available balance in the books of accounts, it cannot be said that there were shortage in the finished goods and raw materials, which were removed by the appellant without payment of duty, in clandestine manner - mere non-maintenance of record by the appellant cannot be a defensible ground for confirmation of the duty demand, alleging that the goods have been clandestinely removed from the factory - appeal allowed - decided in favor of assessee.
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2015 (11) TMI 1659
Valuation - includibility - Royalty - royalty being a tax or not - the case of petitioner is that royalty is covered by the words “other taxes” as used in Section 4(3)(d) of the Act of 1944 and, therefore, royalty is not a part and parcel of “transaction value” and, therefore, no excise duty is leviable upon the royalty paid by these petitioners - Held that: - There is a contract between the parties i.e. the petitioners and the respondents-Companies. These petitioners have participated in “Spot E-auction Scheme” for the purchase of coal. The terms and conditions of “Spot e-Auction Scheme 2007” is binding to the parties to this agreement and looking to Clause 4.4 thereof, these petitioners are bound to make payment of statutory levies, surface transportation charges, sizing/beneficiation charges taxes, cess, royalty, stowing excise duty (SED) and other charges. Thus, the contract between the parties is not a statutory contract, but, it is a contract of commercial in nature.
The traders-petitioners of coal shall make payment of differential excise duty to the respondents-Coal companies which is wholly owned, managed and controlled by the Central Government. Whenever such type of issues are referred to Larger Bench before the Courts and if the amount of tax is involved which is to be recovered by the Central Government companies or the Government companies by the traders, these differential excise duty is bound to be paid by the traders to the Government companies, even during pendency of the issue, before the Larger Bench so that there may not be any difficulty by the Government or for the Governmental companies for recovery of the differential sovereign dues. Otherwise, if, later on, the matter is decided against the traders or petitioners or private parties, it will be extremely difficult for the Government or by the Government Companies to recover the differential excise duty or sovereign dues. The companies, private or public, may be wound up, but, the Central Government and the instrumentalities of the Central Government will not be wound up. The amount of sovereign dues paid by the companies, public or private, is absolutely safe with the Central Government or with the Governmental companies.
Keeping in mind this equilibrium and looking to Clause 4.4 and 11.12 of the terms and conditions of “Spot e-Auction Scheme 2007” and also looking to the fact that the transaction between these petitioners and the respondents-Coal companies is not a statutory contract, but, it is purely a commercial transaction, we, hereby, direct the petitioners-Companies to make payment of differential excise duty to the respondents-Coal companies - petition disposed off - decided against petitoner-assessee.
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2015 (11) TMI 1657
CENVAT credit - other than ABS of H-140 grade - Held that: - It is well settled that evidence would prevail over and above the statement. In any event, the Investigating Officials had not taken any Technical Expert opinion as to whether Helmets may be manufactured out of other than ABS of Grade H-140. The appellant produced ISI specifications in their support. Hence, Cenvat credit should not be denied merely on the basis of statement, ignoring the evidence available on record - credit allowed - appeal allowed - decided in favor of appellant.
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2015 (11) TMI 1656
Rebate - can rebate be claimed for second time? - Held that: - the issue involved in the petition for writ is no more res integra in light of law laid down, by Hon’ble Apex Court in the case of M/s. Spentax Industries Ltd. [2015 (10) TMI 774 - SUPREME COURT], where it was held that If the Central Government itself is of the opinion that the rebate is to be allowed on both the forms of excise duties the government is bound thereby and the rule in-question has to interpreted in accord with this understanding of the rule maker itself - petition allowed - decided in favor of petitioner.
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2015 (11) TMI 1650
Clandestine removal - semi-finished gelatine - natural justice - Held that: - no iota of evidence brought by Revenue to prove clandestine removal of semi-finished gelatine by the assessee from its factory - since semi-finished gelatine are not saleable in the market, the charges against the assessee cannot be sustained that the same were removed from the factory in clandestine manner, without payment of central excise duty - also, the submissions of the assessee that there is no shortage of semi-finished gelatine have not been dealt with by the authorities below - demand set aside - appeal allowed - decided in favor of appellant.
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2015 (11) TMI 1647
CENVAT credit - Maintenance of canteen - renting of cycle stand - Held that: - So far as catering is concerned, such service was availed to discharge an obligation under the Factories Act. Therefore, there shall not be denial of CENVAT credit in respect of service tax paid to avail the catering service for the factory - So far as rental of the cycle stand is concerned, that in no way establishes the nexus between output manufactured or service provided by the appellant - appeal allowed - decided partly in favor of appellant.
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2015 (11) TMI 1645
100% EOU - debonding - DTA sales made by the appellant against advance DTA permission - Concessional rate of duty under N/N. 23/2003-CE (Sl. No. 2) - the decision in the case of M/s. Bony Polymers (P) Ltd. Versus CCE, Delhi-III [2015 (8) TMI 299 - CESTAT NEW DELHI] contested - Held that: - the appeal, being devoid of any merit, deserves to be dismissed and is dismissed accordingly.
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2015 (11) TMI 1644
Condonation of delay of 18 days - power of High Court to condone the delay - Held that: - Reference Application was filed in the year 2000. It so happened that by Act No. 33/2009, sub-section (2A) was inserted retrospectively w.e.f. 1-7-2003 and its provision gives specific power to the High Court to condone the delay. May be the day on which the impugned order was passed by the High Court, there was no such provision but after the insertion of the aforesaid specification retrospectively, it has to be deemed that this provision was in existence in the year 2000 when the Reference Application was filed as well as on 17-1-2007 when the impugned order was passed - delay condoned - appeal restored.
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2015 (11) TMI 1641
Abatement - N/N. 11/2011-C.E. (N.T.), dated 27-2-2010 - denial on the ground that the production activity was stopped on 13-9-2011 and clearances were made on 17-9-2011, which is after 4 days of the commencement of the closure of the factory - Held that: - the Commissioner (Appeals) has set aside the adjudication order and allowed the appeal in favor of the respondent, holding that the respondent herein has substantially complied with the requirement of the aforementioned notification and that non-filing of intimation with the Department within time is a procedural lapse, for which the substantive right conferred in the statute cannot be whittled down - respondent shall be eligible for the abatement benefit provided under the statute since the substantive part of the notification has been duly complied with - appeal dismissed - decided against Revenue.
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2015 (11) TMI 1640
CENVAT credit - a part of the consideration has been remitted to the appellant by the supplier of inputs due to substandard inputs - whether Cenvat credit is required to be reduced on account of certain reimbursement made by the supplier of the inputs being damaged/sub-standard inputs - Held that: - there is no evidence on record that inputs, on which credit has been taken, are not used in the manufacture of finished goods except a bald statement existing in the SCN - reliance placed in the case of Creative Polypack Ltd. v. CCE, Kolkata-II [2007 (7) TMI 268 - CESTAT, KOLKATA], where it was held that there was no question of reversing Cenvat Credit on the amounts of Debit Notes - appeal allowed - decided in favor of appellant.
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2015 (11) TMI 1617
Denial of CENVAT credit - construction of a drain in an around the factory, so that water may not enter into the factory premises - denial of credit on the ground that construction of such Drain (Nallah) was for the sake of preventing water from entering the factory premises, and thus, the same has no nexus with the manufacture or sale of final product.
Held that: - The maintenance and cleanliness of the factory is a statutory requirement, and a manufacturer is under the obligation to comply with the statutory provisions contained in the Factories Act. It is contended that the expenses incurred by the appellant for the input service has been taken as a component of cost for determination of the cost of production for levy of Central Excise duty. The period involved is from July to October 2009, when the un-amended provisions of the input service definition was in vogue, which provides activities relating to business is a constituent for entitling consideration as input service.
The Tribunal in the case of Mawana Sugars Ltd. [2014 (12) TMI 1139 - CESTAT NEW DELHI] allowed the appeal on the identical situation.
Appeal allowed - credit allowed - decided in favor of assessee.
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2015 (11) TMI 1616
Denial of CENVAT credit - service tax paid to consultant - manufacture of Lead and Zinc Ores - denial on the ground that said services cannot be considered as input service, since there is no nexus between the services and the goods manufactured by the appellants - Held that: - In the inclusive part of definition of input service, it has been provided that “activities relating to business” should also be qualified as a service for the purpose of availment of cenvat credit. In interpreting the expression “activities in relation to business”, the Hon’ble Bombay High Court in the case of Ultratech Cement [2010 (10) TMI 13 - BOMBAY HIGH COURT] have held that definition of input service postulate activities which are integrally connected with the business of the assessee; that if the activity is not integrally connected with the business of the manufacture of final products, the service should not qualify to be an input service under Rule 2 (l) of the Cenvat Credit Rules, 2004 - In the present case, it is an admitted fact that laying of railway lines between the factory and the nearest railway siding is a necessity of the business of the appellants. Without laying the railway lines/track material, the goods cannot smoothly be transported to their Smelter Division. Further, the expenditure incurred for both the category of consultancy services have been taken into consideration as part of the manufacturing cost of the finished goods for the purpose of determination of the assessable value. Therefore, in view of the principle decided by the Hon’ble Bombay High Court in the case of Ultratech Cement, I am of the view that the service tax paid on the Consultancy services shall be eligible for cenvat benefit to the appellants.
Appeal allowed - credit allowed - decided in favor of appellant-assessee.
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2015 (11) TMI 1615
Demand u/r 8(3A) of the Central Excise Rules, 2002 read with Section 11A of the Central Excise Act, 1944 - due payment of duty - Held that: - I find that the embargo created in Rule 8(3A) ibid has the application, in the eventuality, where the assessee defaults in payment of duty within prescribed period and the same is discharged beyond the period of 30 days from the due date of payment. In the present case, since the duty liability for the month of September 2011 was deposited on 18.10.2011 with the designated bank and the interest for 13 days was also paid by the appellant subsequently, in my opinion, the situation is governed under sub-rule (3) and not under sub-rule (3A) of Rule 8 ibid. It is not in dispute that the bank account of the appellant has been credited with ₹ 7,21,000/- on 18.10.2011. Transferring the amount from the bank account to the Current Account at a later date due to ignorance on the part of the dealing assistant cannot be a defensible ground for confirmation of the demand under sub-rule (3A) ibid, especially in view of the fact that the appellant had paid the interest amount for delayed payment of duty - appeal allowed - decided in favor of appellant.
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2015 (11) TMI 1614
Demand - clandestine removal - Held that: - I find that the Revenue failed to place any evidence on record against the findings of Commissioner (Appeals). Hence, I do not find any reason to interfere with the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is dismissed.
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2015 (11) TMI 1613
Demand of credit with interest and penalty - MODVAT credit - depreciation - whether simultaneously CENVAT credit and depreciation availed? - Held that: - The lower appellate authority observed that the appellant had claimed the depreciation on the value of the capital goods, which represent the modvat credit. I find that the Chartered Accountant’s Certificate would clearly show that the appellant is not claiming depreciation in respect of Central Excise Duty or countervailing duty paid on the capital goods. The Department has not refuted the Chartered Accountant’s Certificate by any material. Hence, I am of the view that there is no reason to deny the modvat/cenvat benefit - appeal allowed - decided in favor of assessee-appellant.
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2015 (11) TMI 1599
Refund claim for refund of duty paid on goods cleared for in-house testing for the period 1998 onwards - Held that:- In the monthly returns, the respondents have indicated the duty payment made by them on account of testing of tyres and tubes in the test area (of their factory) in each month and from this it can be inferred that no documents have been issued for clearance of such tyres. That therefore, testing has been carried out within the factory premises only. There is no allegation that respondents made clearances without payment of duty for testing. In the impugned order the Commissioner (Appeals) has allowed only the amount which is not barred by limitation. In such score, taking into consideration the facts, evidence and submissions made, we are of the view that there is no infirmity in the order passed by the Commissioner (Appeals).
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2015 (11) TMI 1595
Shortages in the physical stock of the finished goods/raw materials - imposition of penalty - Held that: - the appellant company are entitled to pay 25% of the penalty imposed under section 11AC of CEA,1944 subject to fulfilment of condition laid down there in. I also find force in the contention of the ld.Advocate that there is no direct evidence against the Director Shri Vijay Kumar Jalan, on his involvement relating to the discrepancies in the stock noticed, and no finding against him discussing his role in the said shortages in stock had been recorded by the authorities below. Accordingly, the personal penalty imposed on the Director deserves to be set aside. In view of above, the impugned Order is modified and the appellant company s appeal is partly allowed to the above extent and the appeal filed by the Director Shri Vijay Kumar Jalan is allowed. Appeals disposed off.
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2015 (11) TMI 1593
Differential duty along with interest and for imposition of penalty - duty on the transaction value - Held that:- It is the admitted fact that respondent is not a manufacturer of the inputs. Consequently, the respondent is not liable to pay duty on the transaction value. As per Cenvat Credit Rules, 2004 the respondent is required to reverse the Cenvat credit availed on the inputs at the time of clearance of such inputs as such. Admittedly, in this case, the respondent has cleared the inputs as such. Therefore, the only liability of the respondent is that whatever credit they have availed on these inputs, the respondent is required to reverse the same. The respondent has already reversed the said Cenvat credit. Therefore, the impugned proceedings against the respondent were not warranted. In these circumstances, we do not find any infirmity in the impugned order, the same is upheld. - Decided in favour of assessee
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2015 (11) TMI 1591
Demand - Penalty - Renewal of LUT - Notification No. 42/2001-C.E. (N.T.), dated 26.06.2001 - Held that: - the said notification, it has been specified that the manufacturer-exporter may furnish the letter of undertaking in the form specified in Annexure-II in lieu bond. Nowhere in said notification, there is any mention that the LUT has to be renewed every year by the manufacturer-exporter - the instructions contained in the Excise Manual of Supplementary Instructions cannot over right the provisions of the said notification - Decided in favor of the assessee.
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2015 (11) TMI 1588
Denial of CENVAT credit - job worker/ service provider on crossing charges of iron ore undertaken in its factory - whether the denial justified on the ground that the quantity of iron ore actually sent from the factory to the job worker were not received after its crossing by the job worker - Held that: - Sub-rule (1) of Rule 3 is enabling provision, which entitles a manufacturer to take cenvat credit on input, capital goods and input services received by the manufacturer of final product. In case of input service, the requirement is that the same has to be received by the manufacturer of final product. Since, with regard to the taxable service, no provisions exist in the statute that the services have to be received in the factory of the manufacturer, I am of the opinion that cenvat credit can only be taken on the actual amount of service tax paid by the service provider, which in the present case is the job worker.
The service being not tangible, it is not ascertainable as to how much service is attributable to the goods actually received in the factory after completion of the job work process.
Service tax paid on the job charges is available to the appellant and the cenvat credit is not required to be reversed, in the eventuality, where lesser quantity of goods received in the factory after completion of the job work activity - appeal allowed - decided in favor of appellant.
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