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Central Excise - Case Laws
Showing 81 to 100 of 375 Records
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2015 (11) TMI 1406
CENVAT Credit - whether the appellant is eligible for the benefit of CENVAT credit of ₹ 1,20,542/- for the period from October 2006 to November 2010 in respect of welding electrodes which were used for maintenance and repair of plant and machinery - Held that:- Since the Hon'ble Supreme Court [2010 (11) TMI 34 - SUPREME COURT OF INDIA] has referred the issue to the Larger Bench in view of the fact that there were contrary views earlier, the demand relating to extended period cannot be sustained. In this case, the show cause notice was issued on 23.12.2010 whereas the period for the demand relates to 1st October 2006 to November 2010. The entire demand is beyond the normal period of limitation and in view of the fact that there were several decisions in favour of the assessee during the period and matter has been referred to Larger Bench by the Hon'ble Supreme Court, the appellant succeeds on limitation itself. - Decided in favour of assessee.
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2015 (11) TMI 1405
Admissibility of cenvat credit - House Keeping and Gardening Services - Held that:- In view of the settled preposition of law, as per the relied upon judgments [2010 (1) TMI 301 - CESTAT, BANGALORE], [2011 (4) TMI 1122 - KARNATAKA HIGH COURT] & [2013 (6) TMI 618 - ITAT DELHI] cenvat credit of Housekeeping Service and Gardening Services is admissible to the appellant - Decided in favour of assessee.
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2015 (11) TMI 1404
Denial of CENVAT Credit - Capital goods - Improper documents - Held that:- Importer has filed declaration before the Revenue authorities that the goods entered in the bill of entry have been transferred to the appellant. Moreover, the invoice has been issued in favour of the appellant for transfer of the goods for the appellant. Therefore, I hold that the appellant has correctly taken the credit on the strength of document showing duty paying character of the goods. As the duty paid on the goods has not been disputed - Decided in favour of assessee.
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2015 (11) TMI 1345
Duty demand - MODVAT Credit - Adjustment of tax - Held that:- While issuing the demand notice, payment of ₹ 20,128/- through PLA as also modvat credit of ₹ 11,40,188/- has already been taken into consideration. The demand in respect of the said clearances amounting to ₹ 9,41,109/- has been arrived after extending the said benefit. Thus, we agree with the contention of the Revenue that this has resulted in the adjustment of the paid amount twice. We, therefore, order that the duty paid should be considered as ₹ 10,00,000/- + ₹ 6,10,337/- (Rs.17,50,525/- - ₹ 11,40,188/-) extending the said benefit, the net duty leviable will be ₹ 40,38,454.
Revenue contends that modvat credit against payment of CVD cannot be extended as the same had been disallowed by order-in-original dated 9.10.2011. We have seen the said order-in-original. In the said order-in-original, the Revenue has already proposed recovery of the said amount. The respondent-assessee has taken the credit of the said amount only once. We, therefore, do not see there is any adjustment of modvat credit against duty payable.
Entire ship does not consist of M.S. alone and the Commissioner has given a deduction of 10% towards erections and fitments for constructing ship, cabin crew etc. The Revenue is submitting that in the calculation, a benefit of 326.740 MT of firewood has already been given. Firewood and erection and fitments for constructing ships cabin crew etc. are different things. A lot of wood is used in the ship even for proper storage of the goods etc. In view of the said position, we do not find any merit in the contention of the Revenue to disallow 10% deduction towards erecting and fitment for constructing ship cabin crew etc. - penalty under Section 11AC has been imposed which is required to be equal to the duty imposed. Accordingly the penalty imposed under Section 11AC is also increased - Decided partly in favour of Revenue.
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2015 (11) TMI 1344
Denial of refund claim - remission of duty - damaged / destroyed goods - Misdeclaration of value - Held that:- Before clearance of the goods and during the process of loading, one of the drums fell down as a result of which its content got damaged and as a result of this the consignment itself was not despatched and the same was dispatched subsequently under the invoice no. 1815 dated 31/3/2003. There is also no dispute at the time of clearance of the goods under invoice no. 1815 dated 31/3/2003 the duty had been paid once again. From this, it is clear that in respect of the second drum for which the appellant had not claimed any reimbursement from the insurance company the duty had been paid twice. In our view, the provision of Rule 16 of the Central Excise Rule, are not applicable as the goods had been damaged when the same were being loaded in the factory. In view of this, we hold that there is no infirmity in the Commissioner (appeals) order sanctioning the refund. - Decided in favor of assessee.
If prior to the period of supply, the rate at which the goods were to be supplied had been decided and the same was reduced only subsequently, the judgment of Apex Court in the case of MRF Limited Vs. CCE Madras [1997 (3) TMI 104 - SUPREME COURT OF INDIA] would be applicable and the respondent would not have eligible for refund. For ascertaining this factual position, the matter has to be remanded - while the Commissioner (appeals) s order in respect of the refund claims of ₹ 26,702/- and 1701/- is upheld his order in respect of the refund claims of ₹ 1,48,253 and 87,479/- is set aside and the matter is remanded to the original adjudicating authority for de-novo adjudication - Decided party in favour of Revenue.
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2015 (11) TMI 1343
Clandestine removal of goods (chocolates ) - Destruction of the sample - drawing samples, without payment of Central Excise duty for in-house testing of quality of the goods manufactured and without following any procedure under the Central Excise law, on hourly basis, daily for all the 3 shifts - Penalty u/s 11AC - Held that:- There is no finding of any misstatement and/or contumacious conduct and/or suppression of the records by the appellant-assessee. Further, I find that proper records have been maintained of the drawal of samples in the usual course of business. Only for the sake of absence of a column mentioning the date of destruction of the sample, without there being any finding as to clearance or sale of any sample products by the assessee, no adverse inference can be drawn based on presumptions and assumptions. In this view of the matter, I set aside the impugned order. - Decided in favour of assessee.
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2015 (11) TMI 1342
Duty demand - Failure to make payment of duty on due dates - violation of sub-rule 3A of Rule 8 of Central Excise Rules, 2002 - confiscation under the provisions of Rule 5 of the Central Excise Rules, 2002 - penalty be imposed under Rule 25/27 of the Central Excise Rules, 2002 - Held that:- penalty under Rule 25 can be imposed only on satisfaction of pre-condition, the condition laid down for the penalty under Section 11AC of the Act. As the return (TR-6) was filed, is recorded in the impugned order, the ingredients of Section 11AC are absent. Accordingly, I set aside the penalty imposed under Rule 25 of Central Excise Rules. However, the assessee will be liable to penalty under Rule 27 of the Act for an amount of ₹ 5000/-. Further, I hold that the SMB ruling in the case of Shivam Pressings (2015 (7) TMI 581 - CESTAT MUMBAI) as per incurium as the same has been passed ignoring the condition precedent contained in the Rule 25 itself. - Decided in favour of assessee.
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2015 (11) TMI 1341
Evasion of duty - unaccounted manufacture - clandestine clearances of Gutka - Confiscation of goods - Held that:- Appellant has not dealt with any excisable goods inasmuch as he has neither acquired possession of any excisable goods nor he is in any way concerned in transporting, removing, keeping, depositing, concealing, selling, or in any other manner dealing with excisable goods which he knew or had reason to believe are liable for confiscation. The Appellant’s alleged activity would at the most amount to abetment of duty evasion which as discussed above is not covered by Rule 26. Therefore, the penal provisions of Rule 26 are not attracted in the case of the appellant for his alleged act of fabrication of documents to give legal cover to illicit income of M/s. Shyam Traders. Rule 27 provides for penalty up to the maximum limit of ₹ 5000/- for breach of the Central excisable goods where no other penalty is prescribed. For invoking Rule 27 there must be a breach of Central Excise Rules and in the present case, the department has not spelled out as to which the provision of Central Excise Rules has been contravened by the appellant.
There was allegation of clearance of finished goods without payment of duty as well as availing CENVAT Credit fraudulently on the basis of bogus invoices procured from Registered Central Excise without physically receiving any raw material against these company and in this case, Shri Sanjay Vimal Bhai Deora was sought to be penalized under Rule 26 for being concerned in clearance of the goods without payment of duty. But in the present case, the appellant Shri V.K. Tulsian, Chartered Accountant had absolutely no role in illicit clearance of the gutka without payment of duty by M/s. Shyam Traders. - Imposing penalty of ₹ 50 lakh on the appellant is not sustainable. The same is set aside - Decided in favour of assessee.
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2015 (11) TMI 1340
Imposition of penalty u/s 11AC - differential duty was paid suo motu as pointed out by the Audit Team without disputing liability - Clearance of goods to sister concern much prior to issue of show-cause notice - Clearance of goods in unpacked condition - malafide intention - Section 11A(2B) - Held that:- Goods were cleared by the appellant which was input for the consignee sister concern therefore the valuation was governed by Rule 8 of Central Excise Valuation Rules, 2000 which provides the valuation i.e. 110% of cost of manufacturing. The goods were cleared in July, 2007 and the appellant has calculated the cost of manufacturing on the basis of data for the financial year, 2006-2007 which is the correct procedure. However the appellant was supposed pay the differential duty if it arise due to enhancement of the cost on actual basis which cannot be worked out before completion of the financial year 2007-2008. In such procedure the appellant can pay the differential duty only some- where-in September - October, 2009 when the Balance Sheet is audited and annual report is submitted to the Income Tax department. In the present case the audit was conducted in the months of September - October, 2009 and on pointing out the discrepancy of valuation, the appellant suo moto paid the duty along with interest.
Case of the appellant is squarely covered by Section 11A(2B), according to which the appellant should not have been issued any show-cause notice, as a result no penalty could have been imposed. I also agree with the learned Counsel of the appellant that show-cause notice has not alleged that the omission and commission of the appellant falls under the 4 corner of the ingredients of provision to Section 11A such as suppression of fact, mis-declaration, fraud, collusion, etc. with intent to evade payment of duty. - Decided in favour of assessee.
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2015 (11) TMI 1339
Claiming area based exemption after availing full duty exemption under SSI exemption Notification No. 8/03-CE - Initially Assessee had not opted for Notification No. 50/03-CE - appellant crossed the SSI exemption limit on 3/11/09 and immediately thereafter, they started availing of full duty exemption under 50/03-CE. However, there is no dispute that at that stage, the appellant did not file any declaration or submitted any intimation to the Department, and that they have started availing of this exemption without filing the declaration - whether the benefit of this notification would be available only w.e.f. 28/6/10 or would be available from 04/11/09 - Held that:- In view of the Circular of the Board, we hold that the basis for denying the exemption on the ground that the declaration was filed after 31/3/10, is not correct.
Exemption would be available only from the date from which the declaration is filed and, therefore, the exemption cannot be extended for the period prior to filing of this declaration. Moreover, the condition of filing declaration is designed to prevent the misuse of the exemption notification and to enable the Jurisdictional Assessing Officer to examine as to whether the assessee is eligible for benefit of this exemption notification or not. Therefore, the filing of this declaration cannot be said to be a pure procedural or technical requirement. It is well settled law that when a notification subject to some condition and that condition has been put to prevent the misuse of the exemption notification, non fulfilling of that condition cannot be treated as a mere procedural or mere technical violation and would result in denial of exemption. - exemption Notification No. 50/03-CE would be available to the appellant only w.e.f. 28/06/2010 and not for the period prior to 28/06/2010. The appeal is thus partly allowed. - Decided partly in favour of assessee.
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2015 (11) TMI 1338
Refund claim u/r 5 of unutilized Cenvat Credit - respondent is not satisfying the clause 2(h) of Notification 27/12-CE(NT) dated 18.06.2012 - Held that:- None of the findings of the Commissioner (Appeals) mentioned above has been disputed except stating that condition under clause 2(h) is mandatory. In my view the finding of the Commissioner that the appellant has debited the amount in the Cenvat credit account on 01.07.2003 i.e. on the date of filing of the refund claim satisfied the said condition. The fact that the details of the same have not been reflected in the ER-2 or in the application filed will not make any difference. In any case, all the information was provided to the Revenue before the decision of the case and there is no possibility of any manipulation etc. - infirmity in the order passed by the Commissioner (Appeals) - Decided against Revenue.
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2015 (11) TMI 1337
Benefit of Notification No.30/2004-CE - Reversal of CENVAT Credit - Non fulfillment of condition of notification - Held that:- Appellants have fulfilled the conditions of the notification and therefore, they are eligible for the benefit of the said notification. Any violation of sub-rule (3) of Rule 11 of the CENVAT Credit Rules 2004 should invite necessary action under Rule 14 & 15 of CENVAT Credit Rules 2004 only and cannot be extended to the extent of denying the benefit of the substantial notification for that mere reason. We therefore, do not find force in the findings of the Adjudicating authority in this respect in the impugned order. The same cannot be sustained. - Impugned order is set aside - Decided in favour of assessee.
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2015 (11) TMI 1336
Reversal of CENVAT Credit - Notification No.30/2004-CE, dt.09.07.2004 - Held that:- Appellant opted for the benefit of Notification No.30/2004-CE on 01.08.2005. They reversed the credit on the inputs lying in stock, and also cleared the finished goods in stock on payment of duty. Therefore, they had met with the conditions of notification on the date of opting for the benefit of notification. They did not take any fresh credit on the inputs received subsequent to the said date. These facts are not disputed. The bone of contention is regarding the excess credit the appellant had in their account on 01.08.2005. There were no instructions or legal requirement to expunge (lapse) the said excess credit on 01.08.2005. However, by introduction of sub-rule (3) of Rule 11 of the CENVAT Credit Rules 2004 on 01.03.2007, such provisions to lapse , such excess credit was introduced. - Appellants have fulfilled the conditions of the notification and therefore, they are eligible for the benefit of the said notification. Any violation of sub-rule (3) of Rule 11 of the CENVAT Credit Rules 2004 should invite necessary action under Rule 14 & 15 of CENVAT Credit Rules 2004 only and cannot be extended to the extent of denying the benefit of the substantial notification for that mere reason. We therefore, do not find force in the findings of the Adjudicating authority in this respect in the impugned order. The same cannot be sustained. - Impugned order is set aside - Decided in favour of assessee.
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2015 (11) TMI 1335
Rectification of mistake - Held that:- Tribunal had given the detailed finding for nonapplicability of the case laws as cited by the Appellant. It has also followed the decision of the Larger Bench of the Tribunal in the case of Spenta International Ltd (2007 (8) TMI 25 - CESTAT, MUMBAI) - Tribunal, after considering the facts of the case, had come to a conclusion that the Applicant used the capital goods for manufacturing the exempted finished goods. This is supported by the statement of Shri Nalin Desai, Chief Manager of the Applicant. - factual dispute on use of capital goods and non-consideration of the case laws as relied upon by the Applicant and follow the decision of the Larger Bench of the Tribunal, are debatable issues and therefore, it cannot be a mistake apparent on the face of records. It is well settled that the Tribunal is not empowered to review/recall its earlier order and substituting the same by a different order. - No merit in appeal filed - Decided against Assessee.
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2015 (11) TMI 1334
Excess material found during search in the premises of Job worker - appellant has not recorded the excess goods in their statutory records - contravention of the provisions of Rule 15 of Cenvat Credit Rules, 2004 read with Rule 25 of the Central Excise Rules, 2002 - Confiscation of goods - Imposition of redemption fine and penalties - Held that:- On plain reading of the said Rule, the Rule is applicable when the assessee takes Cenvat Credit on inputs/ capital goods. The facts of the case are such that the appellants have not taken cenvat credit on inputs. Therefore, Rule 15 of the Cenvat Credit Rules, 2004 is not applicable to the facts of the case as appellant have not taken any cenvat credit either wrongly or in contravention of the provisions of any Rule. Therefore, I hold that goods in question are not to be held liable for confiscation under Rule 15 of the Cenvat Credit Rules, 2004. - provisions of Rule 25 are attracted if there is violation of provisions of section 11AC of the Central Excise Act, 1944.
Provisions of Rule 25 of Central Excise Rules 2002 cannot be invoked for confiscation of the goods in the subject matter as held by this Tribunal in the case of BMW Steels Ltd. (2010 (10) TMI 885 - CESTAT, NEW DELHI) and in the case of Sadashiv Ispat Ltd. (2010 (1) TMI 500 - PUNJAB & HARYANA HIGH COURT). Therefore, I hold that the provisions of Rule 15 of Cenvat Credit Rules, 2004 and Rule 25 of Central Excise Rules, 2002 are not applicable to the facts of cases in hand, consequently, the confiscation of the goods in question is set aside, hence no redemption fine and penalty are imposable on the appellants - Decided in favour of assessee.
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2015 (11) TMI 1248
Denial of SSI exemption benefit under Notifications No.16/97-CE, dt.01.04.97, 8/98-CE, dt.02.06.1998, 8/99-CE, dt.28.02.1999 and 8/2000-CE, dt.01.03.2000 - Held that:- Central Excise officers visited the Appellant s factory on 22.08.2000 and resumed the files containing invoices, Note Books and also recorded the statements of the employees and Directors of the Appellant Company. The Central Excise officers also visited several transport companies and recovered the L.Rs. and Dispatch Registers and recorded the statements of the employees of the transport companies. The Appellants deposited the amount of ₹ 75,000.00 at the instance of the Central Excise officers. Subsequently, the Appellants filed refund claim of ₹ 75,000.00. - it appears that the Central Excise officers prepared the statements of the clearance of the goods on the basis of dispatch registers and the L.Rs. recovered from the office of Transport Companies and recorded the statements of the employees of the transport companies. The Appellants requested the Adjudicating authority to supply the copy of documents recovered from the premises of transporters as referred in the annexures to the Show Cause Notice and the cross examination of the employees of transporters, which was rejected. The Commissioner (Appeals), by earlier order dt.14.12.2005, remanded the matter to the Adjudicating authority for denovo Adjudication order.
Despite the order of the Commissioner (Appeals) in 2005, the Adjudicating authority had not supplied the relied upon document as recovered from the premises of the third party and also denied the opportunity of cross examination. By the impugned order, Commissioner (Appeals) proceeded on the basis of the statements of the employees of the Appellant, who was maintaining Note Book. But, the said Note Book is not the basis of demand of duty. So, there is no material on record, on the basis of which, it could justify the clandestine removal of goods. So, the demand of duty alongwith interest and imposition of penalty cannot be sustained. - impugned order is set aside - Decided in favour of assessee.
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2015 (11) TMI 1247
Denial of benefit of captive consumption Notification No.67/95-CE dt. 16-3-1995 - denial of exemption only on the ground that Sulphuric Acid (H2SO4) is a final product cleared at 'Nil' rate and held that since oxygen is captively used in the manufacture of Copper Anode (dutiable) and Sulphuric Acid (exempted) they are not eligible for Notfn 67/95 - Held that:- Sulphuric acid is cleared as by-product as explained in the preceding paragraphs and the final product is only copper anode and not sulphuric acid. The waste gas which emerges out out of process of purification of copper concentrate in Sulphur Dioxide which is further converted into Sulphur Trioxide which is absorbed in Sulphuric Acid to form Oleum. This Oleum is dissolved in water to get purest form of Sulphuric Acid. It is pertinent to state that under the Environment (Protection) Rules, 1986 vide sub-rule (2) of Schedule I and as per Sl.No.21 of the Schedule I of the Environment Rules, it is mandatory for the appellant to prevent emission of oxides of sulphur in Smelter and Convertor of copper and it stipulates that waste gases are to be utilized in the manufacture of Sulphuric Acid so as to prevent emission of Sulphur Dioxide. - as per Notfn 67/95, both input oxygen and the final products are rightly covered in the Table of the Notification. Proviso (vi) of the notification stipulates that this notification is applicable provided appellant complied with Rule (6) of CCR 2001. The only condition is that Sub-Rule (2) of Rule 6 of CCR is required to be complied with. In the present case, as per sub-rule (2), appellant manufactured oxygen used in the manufacture of excisable product and they had no obligation to maintain separate accounts for oxygen used in the manufacture of Sulphuric Acid. It is established that appellant did not use oxygen produced in the manufacture of Sulphuric Acid. Accordingly, conditions of Notfn 67/95 are complied.
Following the Apex Court decision in the case of UOI Vs Hindustan Zinc Ltd. (2005 (2) TMI 119 - SUPREME COURT OF INDIA), we hold that appellants are eligible for benefit of Notfn 67/95 and the duty demand on the quantity of oxygen so used in the manufacture of sulphuric acid, is liable to be set aside. - Decided in favour of assessee.
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2015 (11) TMI 1246
Waiver of pre deposit - Whether the products, in question, Tinidazole Intravenous Infusion (Tinipidi), Metroidazole Sodium Chloride Injection, Metronidazole Injection with Dextrose, Ciprofloxacin Injection with Dextrose,Ciprofloxacin Injection with Sodium Chloride, and Mannitol Injection, all of which contain antibiotics in saline or glucose medium and other medicaments and are meant for Intravenous infusion are covered for duty exemption by the entry no.56 of the notification no.3/2001-CE dated 1.3.2001 which covered, Intravenous Fluids which are used for sugar, electrolyte and fluid replenishment
Held that:- Irrespective of the evidence of Dr. Vivek Sullere, w.e.f. 1.3.2001 the duty exemption would be restricted only to those Intravenous Fluids, which are used for sugar, electrolyte and fluid replenishment and the same would not be available to those Intravenous Fluids, which are meant for some other purposes. It is well settled law that the exemption notifications have to be construed strictly and this was one of the observations in the Apex Court’s judgement dated 31.03.2009 while remanding the matter to the Tribunal. Thus, it cannot be said that the appellant have prima facie case in their favour.
The undue hardship is determined on the basis as to whether the assessee has prima facie case in his favour and if so, to what extent. The Revenue s interest have to be safeguarded keeping in view the factors which are in favour of the Revenue. At this stage, ld. Counsel for the Appellant pleaded that the appellant in their stay application have also pleaded financial hardships as on account of their inability to re-pay the bank debts, their case was referred to Corporate Debt Reconstructing Cell of the Banks which have formulated re-habilitation package. He also pleaded that this factor may also be taken into account while considering the stay application. However, irrespective of the plea of financial hardships, since the issue involved in this case stands decided by the Tribunal against the Appellant in its judgement in case of Ives Drugs (India) Ltd. , Venus Remedies Ltd. & Ors. (2010 (10) TMI 649 - CESTAT, NEW DELHI) and this judgement has been upheld by Hon’ble Punjab & Haryana High Courts, this is not a case for total unconditional waiver from the requirement of pre-deposit and the Appellant have to be put to certain conditions of pre-deposit to safeguard the interests of the Revenue. - Partial stay granted.
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2015 (11) TMI 1245
Denial of SSI Exemption - Use of other's brand name - Seizure of goods - Imposition of redemption fine and penalty - Held that:- Appellant were manufacturing the brake linings using brand name-TVS and Rane and also brake linings using their brand or other brands which are not owned by any particular person or unbranded brake linings. The Commissioner in the impugned order has denied SSI Exemption in respect of only brake linings cleared under the brand names-TVS and Rane. However, the value of the goods whether sold under the brand name TVS and Rane or sold under other brand names or sold without any brand has not been determined on the basis of the price declared in the invoices. In this regard, the Commissioner in respect of the brake linings bearing brand name TVS and Rane has adopted the price at which the brand name owners were selling the same goods and the value of the goods of other brand or unbranded goods has been determined on the basis of the quotations given by the three traders M/s. Masu International, M/s. Serbestos Auto International and M/s. Minocha Metals (P) ltd.
It is not the department s case against the appellant that the appellant had any agreement with TVS and Rane for manufacture of brake linings as per their standards and specifications and could use their brand name. The appellant were obviously using the brand name TVS and Rane on certain brake linings manufactured by them unauthorisedly and thus, the brake linings with the brand name TVS and Rane cleared by them have to be treated as duplicate brake linings. In view of these circumstances, in our view, there is no justification to value these brake linings at the price at which such brake linings were being sold by the brand name owners.
The actual production of RPM has been determined on the basis of three registers recovered from the premises of RPM. The department, however, based on the statement of Shri Pradeep Kumar Goel and his factory Supervisor Shri Satender Kumar has taken the stand that this production has been recorded in the terms of sets, each set being of eight brake linings, while the appellants stand is that the production in these registers is not in sets but the numbers mentioned are the number of brake linings not of the sets of brake linings. There is nothing in the registers from which it can be inferred that the production recorded therein is in terms of sets. Though initially Shri Pradeep Kumar Goel had given the statement that the production recorded is in sets, this statement has been retracted by him. Though Shri Satender Kumar, Supervisor working in the RPM s factory had stated that the production has been recorded in sets., in our view without his cross-examination, his statement cannot be accepted at face value when his statement is not corroborated by any other evidence. - Production recorded in the three registers recovered from the premises of RPM is in terms of sets of brake linings is not sustainable and accordingly, the production recorded in these registers is to be treated as production of that many brake linings not of the sets of brake linings - Impugned order is set aside and the matter is remanded to Commissioner for re-quantification of the duty liability in terms of our observations in this order - Decided in favour of assessee.
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2015 (11) TMI 1244
Denial of Cenvat Crredit - Bogus invoices - Issue of invoices without actual receipt of goods - Held that:- M/s. Agarwal Metal Co. / Works is a manufacturer of brass strips/ circles and supplying the same to the Registered dealers, namely, M/s. AMCo. & AMCorpn. against duty paid invoices. Thereafter, these AMCo. & AMCorpn. are supplying the goods to manufacturer buyers and description was shown in the invoices as brass sheets instead of brass circles / strips. Apart from this evidence, no other corroborative evidence has been produced by the Revenue to allege that manufacturer buyers have received the invoices only but have not received the goods against these invoices. No investigation has been done at the end of transporter or check post to ascertain the facts against the impugned invoices, the manufacturer buyers had received goods or not. Moreover, no other corroborative evidence has been produced by the Revenue from where these goods i.e. brass sheets procured by manufacturer buyers. In the absence of any corroborative evidence, the Cenvat credit to manufacturer buyer cannot be denied.
Cenvat credit cannot be denied to manufacturer buyers. Further, in the case of Delhi Control Service this Tribunal (2013 (8) TMI 921 - CESTAT NEW DELHI) has taken the same view. With these observations, the orders of denial of Cenvat credit to manufacturer buyers and consequently demand of duty along with interest are not sustainable. Therefore, the penalties on manufacturer buyers are not imposable. As in some cases, some amount has been paid by M/s. AMCo. & AMCorpn. during the course of investigation, that amount cannot be claimed by manufacturer buyer / M/s. AMCo. & AMCorpn. as refund, consequent to this order. As demand of duty against manufacturer buyers is not sustainable, consequently, penalties on manufacturer buyers cannot be imposed. - Decided in favour of assessee.
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