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Central Excise - Case Laws
Showing 1 to 20 of 241 Records
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2015 (4) TMI 1352
CENVAT Credit - denial of credit on the ground that they have received only the invoices without the receipt of inputs in question - circumstantial evidences - third party evidences - corroborative evidences or not - HELD THAT:- The entire case of the Revenue is based upon the investigations conducted at the end of the manufacturing unit of M/s. Aggarwal Steel Rolling Mills & Metal Industries. Admittedly, the said manufacturer was also clearing the scrap or the defective goods, etc. to some extent. There is nothing on record to show that the goods were not actually received by the present appellant, which stands duly reflected by them in their RG-23 Part A register and stand utilised by them in the manufacture of their final product. Further, as seen from the impugned order of the Commissioner (Appeals), he has observed that there is circumstantial evidence available on record to indicate that the defective rounds produced by the manufacturer were not scrap. Such circumstantial evidence referred to by the Commissioner (Appeals) is the fact that the original manufacturing unit has shown more clearance of defective rounds than the prime quality rounds.
There is otherwise no evidence to show that such excess cleared defective rounds were received by the present appellant. They may have received defective goods/scrap, which was admittedly defective and was capable of melting in the furnace. In the absence of any evidence to the contrary, it is found that the denial of Cenvat credit on the basis of the investigations conducted at the third party end cannot be adopted as the sole basis for denial of credit.
Appeal allowed - decided in favor of appellant.
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2015 (4) TMI 1315
CENVAT Credit - shortages of raw material/finished goods found short at the time of investigation - HELD THAT:- At the time of visit, shortage of finished goods as well as raw material was found. Infact in the case of raw material, shortage is more than 20% and if method of weighment devised by the appellant is taken into consideration then the shortage is 20%. There may be variation from 5% to 10% or like percentage but cannot be such a huge variation in counting the stock on average basis. Therefore, contention of the learned counsel that weighment has been done on average basis is not acceptable. In these circumstances, for the shortage of raw material, appellant is required to reverse the Cenvat credit availed thereof.
Finished goods - HELD THAT:- The shortages worked out is less than 9% which may be due to average methods suggested by the appellant during the course of physical verification of the goods of 250 MT and as per Panchnama also, the weighment has been on the basis of average weight of bundle of each size. Therefore, variation may occur due to the weighment done on average basis.
Penalty on shortage of raw material - HELD THAT:- The penalty attributable to shortage of raw material is on high side as appellant has paid the duty at the time of investigation itself. Therefore, penalty is reduced to 25% of the duty confirmed on raw material found short.
Appeal disposed off.
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2015 (4) TMI 1314
Classification of goods - terminal box - PSTB Arrangement Tri-furcating box - neutral terminal box and sealing box - classifiable under Heading 8501 or under Heading 8403 - HELD THAT:- Headings 8535 and 8536 covers “electrical apparatus for switching or protecting electric circuit or for making connections to or in electric circuits”. Heading 8537 covers “Board, panels, consoles, desks, cabinets, and other basis equipped with two or more apparatus of Heading 8535 or 8536 for electric control or distribution of electricity - the goods, in question, are used for providing support to the cables and segregation of the cables and also providing the space for filling the insulating material to avoid short circuits and that these items are meant for use with electric motors.
Since, there is no evidence produced to refute this contention, there is no merit in the Revenue’s appeal - appeal dismissed.
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2015 (4) TMI 1297
Rectification of Mistake - error apparent on the face of record - Valuation of goods - extended period of limitation - HELD THAT:- On the time bar issue and invocation of extended period, it is observed that this Bench has given detailed findings in Para 7 of the order dated 24-7-2014, after perusal of records which also included the judgments relived upon by the appellant in Para 2 of the order dated 24-7-2014, passed by this Bench. The time bar aspect and invocation of extended period is a mixed question of Law and facts which has to be seen with respect to the facts of each case - There does not seem to be any mistake apparent from the case records with respect to this aspect and ROM filed on this account needs rejection.
Valuation of goods - HELD THAT:- It is observed from Paras 37, 38 and 38.1 of the Order-in-Original No. 18/Commissioner/2010, dated 8-4-2010 - 27-4-2010, that adjudicating authority has given detailed findings as to why the data furnished by the appellant is not acceptable. The order passed by the adjudicating authority on this aspect is well reasoned, feasible and legal and is upheld.
So far as contention raised at Para 2(iii) is concerned, it is observed from Para 35 of the Order-in-Original passed by the adjudicating authority that Brass Rods are classifiable under Tariff Heading 7407 21 20 of the Central Excise Tariff Act, 1985. Further as par Clause (xxiv)(A)(C) of the Annexure to Notification No. 8/2003-C.E., dated 1-3-2003 Tariff Headings 7407 21 20 has not been excluded from the list of specified goods exempted under Notification No. 8/2003-Central Excise. Therefore, this is a mistake apparent from the face of facts available on record and appellant will be eligible to exemption to Brass Rods falling under Tariff Heading 7407 21 20 when used captively. ROM on this aspect is allowed.
Adjudicating authority will re-quantify the demand after allowing benefit of exemption to the Brass Rods falling under Tariff Heading 7407 21 20 - ROM application allowed in part.
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2015 (4) TMI 1294
CENVAT credit - all units merged at a later date - failure to comply with the mandatory conditions for availing CENVAT credit - HELD THAT:- The application admitted on substantial questions of law.
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2015 (4) TMI 1252
Scope of SCN - opportunity of being heard - principles of natural justice - Held that:- The case set up in the writ petition was entirely different from the one which is sought to be projected before us at the time of arguments which cannot be permitted - the High Court while allowing the appeal of respondent No. 1 and dismissing the writ petition of the appellant had given an opportunity to the Learned Counsel to file civil suit. Civil Suit was in fact filed but the same was dismissed some time in the year 2011 - appeal dismissed.
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2015 (4) TMI 1241
Rectification of mistake/Recalling of Final Order Nos. A/11715-11727/2013, dated 9-12-2013 - case of assessee is that the Department has to justify for recalling or rectification of mistake of the Final Order - Held that:- The Tribunal had not given the detail findings in the Final Order dated 9-12-2013 as both sides in agreement that the decision of the Hon’ble Gujarat High Court in the case of Prayagraj Dyeing & Printing Mills Pvt. Ltd. [2013 (5) TMI 705 - GUJARAT HIGH COURT] is in favour of the assessee. The Hon’ble High Court observed that the Court cannot proceed to hear the appeal filed by the Revenue as the Tribunal has not given analysis and opinion of the facts of the case.
The Final Order dated 9-12-2013 is required to be recalled for recording details analysis of the facts and the laws of the case.
ROM application allowed.
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2015 (4) TMI 1240
Penalty u/r 25 of CER, 2002 - the difference in quantity was presumed by the preventive team and it was held that as the appellant has not reversed the credit attributable to shortages, therefore, it was presumed that the difference in quantity would have been cleared clandestinely - Held that:- As per SCN, penalties proposed to be imposed on the basis of assumption and presumptions that appellant would have been issued the duty paid invoices without supplying the goods to unknown buyers is the allegation against the appellant which is only on the basis of assumption and presumption and for imposing penalties under Rule 25 mens rea is required - Penalty set aside - appeal allowed - decided in favor of appellant.
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2015 (4) TMI 1228
CENVAT credit - inputs not received and sent directly to job-worker - Held that: - when the final product of the appellant was decided to be manufactured on job work basis by the job worker, the input need not come to the factory of the appellant and in any case it has to be supplied to the job worker - the appellant is legally entitled for the CENVAT credit. The movement of input for job work is governed by Rule 4(5)(a) of the Cenvat Credit Rules, 2002. Under this provision, no statutory procedure was prescribed.
As regards direct supply of input from the supplier to the job worker, this Tribunal in various judgments held that even if the input is supplied directly from supplier to the job worker, the Cenvat credit cannot be denied.
Appeal allowed - decided in favor of appellant.
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2015 (4) TMI 1224
Valuation - Compounded Levy Scheme - the appellant made a request for re-determining their duty liability under section 3A (4) on the basis of their actual production - Held that: - the reason given by the Commissioner for determining assessee's duty liability under section 3A (4) is not correct, as when the appellant had made a request for re-determining their duty liability for the period of dispute on the basis of actual production and there is such a provision in sub-section (4) of Section 3A, the Commissioner should have considered their request for the same - the matter is remanded to the Commissioner for re-determining the appellant's duty liability on the basis of actual production in terms of sub-section (4) to section 3A of the Central Excise Act - appeal allowed by way of remand.
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2015 (4) TMI 1223
Issue notice relating to direction no. (ii) and direction no. (viii) to the extent it relates to direction no. (ii) of the impugned order dated 29.01.2015 - Renotify on 07.09.2015.
In the meanwhile, there shall be stay of demand of the amount by way of service tax amounting to ₹ 100,05,78,705/- and the equivalent amount of penalty which form the subject matter.
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2015 (4) TMI 1220
Refund claim - time limitation - Section 11(B) of the CEA 1994 - Held that: - limitation issue has been dealt with before the adjudicating authority during adjudication and it was held that refund claim is not held by bar of limitation.
Scope of SCN - CENVAT credit - Rule 3(5)(b) of CCR, 2004 - Held that: - there is no issue in the SCN whether appellant is required to reverse Cenvat credit or not - Moreover, SCN itself clarify as per Rule 3(5)(b) of Cenvat credit Rules 2004 if the input or capital goods have been written off before use then the provision of said rules is applicable - provision under Rule 3(5)(b) of CCR, 2004 are not applicable to the facts of this case. Both the lower authorities have gone beyond the scope of the SCN.
Appeal allowed - decided in favor of appellant.
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2015 (4) TMI 1188
Presence of appellant in the office of Senior Intelligence Officer, Directorate General of Central Excise Intelligence, Indore - Held that: - learned counsel for the appellant, on instructions given by the appellant, states that he will appear before the Senior Intelligence Officer on 20-4-2015 at 11.00 AM. Under the circumstances, it is not necessary to proceed with the first charge.
Submission of false evidence before Directorate General of Central Excise Intelligence, Indore - Held that: - we have gone through the letter dated 29-12-2009 and find that it does not contain any statement which can prima facie be said to be false. All that it states is that the appellant was not looking after the day-to-day affairs of the company relating to duty drawback. These are looked after by Mr. P.K. Vyas, Executive Director of the Company and if any statement is required to be made in this regard, Mr. P.K. Vyas may be summoned and his statement will be equally binding on the Company. Having gone through this letter, we do not find any reason which can even remotely suggest that the second charge can be substantiated.
Appeal allowed - appellant are directed to be present before the concerned Senior Intelligence Officer on 20-4-2015 at 11.00 AM.
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2015 (4) TMI 1187
CENVAT Credit - entitlement of duty drawback - audit team noted that the petitioner had wrongly availed of CENVAT credit of the Excise duty, contrary to Rule 3(5) of the CENVAT Credit Rules, 2004, as the goods were temporarily imported capital goods, meant to be re-exported - Claim of drawback claim was rejected on the ground of period of limitation - the decision in the case of M/s. Vishal Beverages Pvt. Ltd. Versus Union of India And Another [2014 (8) TMI 255 - DELHI HIGH COURT] contested, where it was held that The petitioner cannot be allowed a drawback on the Excise duty as that would tantamount to allowing it to profit from its unjustly derived benefit of the CENVAT credit till May 2012 - Held that: - the decision in the above case upheld - appeal dismissed.
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2015 (4) TMI 1170
Maintainability of appeal - Monetary limit in filing appeal - the decision in the case of COMMISSIONER OF C. EX., CHANDIGARH Versus NEW SANDHU METAL WORKS [2004 (4) TMI 110 - CESTAT, NEW DELHI] contested - Held that: - Since there is nominal tax effect in the present appeals, we refuse to entertain these appeals - appeal dismissed - decided against appellant.
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2015 (4) TMI 1169
CENVAT credit - inputs written off subsequently - whether the respondents are liable to reverse the credit availed in respect of inputs which stand subsequently written off? - period involved is April 1999 to December 2000 - Held that: - the provisions of Rule 3(5)(b) of Cenvat Credit Rules were introduced subsequently in the year 2008 and cannot be held to be retrospectively applicable - reliance placed in the case of BHEL v. CCE [2002 (2) TMI 1322 - CESTAT BANGALORE], where it was held that when the inputs are available in the factory, Cenvat credit cannot be demanded - credit allowed - appeal dismissed - decided against Revenue.
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2015 (4) TMI 1163
Pre-deposit - maintainability of petition - the decision in the case of Wisdom Guards Private Limited Versus The Commissioner, Central Excise, Jaipur-II, & Anr. [2015 (1) TMI 1331 - RAJASTHAN HIGH COURT] contested - Held that: - Another four weeks' time is granted finally to comply ith the order and directions issued by the Tribunal - petition allowed - decided in favor of petitioner.
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2015 (4) TMI 1158
CENVAT credit - fake invoices - denial on the ground that the appellant have taken the Cenvat credit on the strength of invoices without receiving the goods - Held that: - no corroborative evidence have been produced by the Revenue from where the appellant procured the goods, if goods were supplied to the appellant along with invoices. No stock taking was done at the end of the appellant. Therefore, without any supportive evidence Cenvat credit merely on the statement of M/s. Gupta and on the allegation of transporting vehicle cannot transport such goods, Cenvat credit cannot be denied - credit allowed - appeal allowed - decided in favor of appellant.
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2015 (4) TMI 1152
Offence punishable u/s 120B, 420, 467, 468, 471 and 511 of Indian Penal Code and u/s 15 of the Prevention of Corruption Act, 1988 - principle of vicarious liability - It is alleged in the FIR that said Shri Macwana intentionally and willfully concealed the fact that the unit had not commenced the commercial production in order to cause undue pecuniary advantage to the unit for availing the refund of the duty.
Held that: - From the record, it appears that the petitioner is the Managing Director of the company. The company passed a resolution in its Board Meeting and decided to apply for getting excise benefit as per Notification dated 31.07.2001 and therefore the company submitted an application on 24.12.2005. However, from the record, it appears that before the registration of the FIR, an application seeking withdrawal of the benefit, which was sought under Notification dated 31.07.2001, was submitted by the company and therefore the company has not received any wrongful gain on the basis of its earlier application dated 24.12.2005 and therefore no pecuniary loss is caused to the Department. Thus, the ingredients of the alleged offence punishable u/s. 420 of IPC are not attracted.
It is also clear from the record and more particularly from the order dated 19.09.2008 passed by the Chief Commissioner, Central Excise that when the Central Excise Department had initiated the proceedings under Section 9 of the Central Excise Act against the company and its officers with regard to the similar set of allegations made in the impugned FIR, the department compounded the offence and therefore the allegations made in the proceedings initiated under Central Excise Act have come to an end. Thus, when the company and its officers including the petitioner have compounded the offence, initiation of proceedings under the provisions of IPC for the same type of allegations cannot be permitted. There cannot be two different prosecutions for the same incident and petitioner cannot be prosecuted twice for the same offence even in different proceedings.
Since there is no specific allegation in the FIR or in the chargesheet against the petitioner and merely because the petitioner was the Managing Director of the company, he has been implicated in the offence, the petitioner cannot be made vicariously liable for the act and/or omission on the part of the company for the offence punishable under the provisions of the IPC.
The impugned FIR being RC20( A)/2008 – GNR and all proceedings initiated pursuant thereto are nothing but a gross abuse of the process of the Court and therefore in the interest of justice, the same are required to be quashed and set aside - petition allowed - decided in favor of petitioner.
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2015 (4) TMI 1148
Recovery - Rebate sanctioned - export of P&P medicaments - Held that: - the present demands by the Commissioner are consequential demands raised by the Revenue for recovery of the rebate claims already sanctioned, in the light of acceptance of Revenue appeals by Commissioner(Appeals) and revisionary authority. As the said two orders passed by Commissioner(Appeals) as also by the revisionary authority stand set aside by the Hon’ble Delhi High Court, the consequential demands raised by the Revenue no longer survive. We also take note of the specific order of the Hon’ble High Court of Delhi setting aside the consequential demands. As such, it is safe to conclude that the impugned order has become non est, in the light of the Hon’ble High Court of Delhi’s order. The same is accordingly set aside and appeal is allowed.
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