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Central Excise - Case Laws
Showing 81 to 100 of 241 Records
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2015 (4) TMI 893
Classification of goods - Marketability of product - Whether sugar syrup made by the appellant for captive use in the manufacture of exempted biscuits is chargeable to Central Excise duty under sub-heading 17029090 of the Central Excise Tariff - Held that:- Since the sugar syrup is used in the manufacture of the exempted biscuits, the benefit of Notification No. 67/95-CE would not be available. In this regard, the contention of the appellant is that in terms of the proviso to Notification No. 67/95-CE, the full duty exemption to intermediate products being used for captive consumption is available if a manufacturer discharges the obligation under Rule 6 of the Cenvat Credit Rules. - In this case, it is now known as to whether the appellant throughout during the period of dispute, were manufacturing only exempted final product or alongwith the exempted final product were also manufacturing dutiable final product. The proviso to notification is applicable only in a situation where by using common Cenvat credit availed inputs, a manufacturer manufactures dutiable as well as exempted final product and in respect of the exempted final product, the obligation under Rule 6 of the Cenvat Credit Rules has been discharged.
For classification as sugar syrup blend in this sub-heading the product must contain 50% by weight of fructose sugar in dry state
There is no evidence to show that before seeking classification of the goods, in question, under sub-heading 17029090, the samples drawn from the goods had been got tested by the CRCL to confirm as to whether the fructose content of the goods, in question, in dry stage is 50% by weight. Just because the appellant during period till June 2008 were paying duty on the goods by classifying the same under sub-heading 17029090, it cannot be presumed that they had accepted that the goods, in question, conform to the description of sugar syrup blends of sub-heading 170290 for which the sugar syrup in dry stage must contain 50% by weight of fructose.
Marketability of the goods produced by a particular manufacturer cannot be presumed on the basis of the marketability of the similar goods in different condition being produced by another manufacturer, unless it shown that the two products are identical. In these cases, the Commissioner (Appeals) has held that the goods, in question, to be marketable only on the basis that the invert sugar syrup being manufactured by M/s Dhampur Speciality Sugars Ltd. is being sold to M/s Britannia Industries, M/s J.B. Mangaram Food Industries and M/s ITC Ltd. In our view this basis of holding that the goods, in question, are marketable is absolutely wrong, as it has been presumed that the sugar syrup being made by the appellants is identical to the invert sugar syrup being made by M/s Dhampur Speciality Sugars Ltd. for which there is no basis.
Neither there is any evidence to prove that the goods, in question, are classifiable under 17029090 nor there is any evidence to prove that the goods, in question, in form in which they come into existence in the appellant s factories, are marketable. We, therefore, hold that the impugned order is not sustainable. The same is set aside. - Decided in favour of assesees.
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2015 (4) TMI 892
Exemption under notification 6/01-CE - Only one unit in working condition - Availment of exemption in respect of closed unit - Held that:- Tribunal in the earlier order had held that during the period of dispute, i.e., during period from September, 2001 to 31st March, 2003, the factory of M/s. Shamli was not working and only the goods produced in the factory of M/s. Sikka were being shown to have been manufactured and cleared from the factory of M/s. Shamli. - it is the contention of the appellants that factory of M/s. Shamli was functioning during period of dispute and there is record of production. It has been pleaded that though there was no power connection in the factory of M/s. Shamli there were 2 DG Sets each of 380 KVA each and at the time of officer s visit on 24/4/2003 while one DG Set was in working condition and the other was under repairs. With regard to the purchase of diesel it has been pleaded that the diesel was being purchased from M/s. Dee Cay Traders and was being delivered at their premises under GRs and that in this regard Shri Vinit Kumar of M/s. Super Oils had confirmed the delivery of HSD at the appellant s premises on various occasions. It had been pleaded that the records regarding purchase of raw material and diesel had been recovered from the appellant s premises besides the record regarding payment made to the labour contractors and the details of the tax deducted at source in respect of the payment made to the labour contractors - Some crucial documents had neither been considered by the Commissioner at the stage of the adjudication nor had been considered by the Tribunal, it would be proper to remand this matter to the Commissioner for de-novo adjudication - Decided in favour of assessee.
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2015 (4) TMI 891
Confiscation of seized goods and plant & machinery - Excess stock found lying in the factory - Demand of duty alongwith interest and penalty imposed on the basis of the pocket diary on Appellant No.1 - Fabricated evidence - Held that:- On perusal of the Panchnama, I find that there are some blanks in the panchnama. The investigating officers during cross examination deposed that the blanks were due to an oversight. - On being asked as to why 320 pcs were seized when as per diary there should be physical stock of 973 pcs and as per lot register, there should be 976 pcs, he stated that the seizure of that quantity of unaccounted goods were affected, which were available in the factory. Further, on being asked, on other issues, he stated that since considerable time has elapsed, he was unable to explain the exact reason, and he did not prepare the Annexure-A of the Panchnama. There is no dispute that some spaces in the Panchnama were left blank, which could not be explained by the investigating officers during the cross examination, appears to be a casual approach.
The Adjudicating Authority observed it might be mistakenly shown as 3 bales against 27 bales in the pocket diary. In some cases, it is observed that the name of the consigner or the party code was not mentioned in the lorry receipts but the other details of lorry receipts are tallied with the gate-pass book of the transporters. It is relied upon the grey register recovered from the transporters to corroborate the pocket diary. The appellant disputed grey register of the transporters and requested the cross examination of the transporters, which has not been allowed. - there were discrepancies in the pocket diary and grey register as well as the documents of the transporters cannot be accepted as the cross examination of the transporters was not allowed. It is also disputed the contents of Lorry Receipts recovered from the transporter in so far as out of 17 LRs not a single LR is in the name of the Appellants either as consignor or as consignee. Further as per the said LRs deliveries were made from Bhiwandi to Saroli and no consignment was delivered from/to the Appellants address. As regards Grey Register, the said register is maintained truck-wise by Moongipa Roadways P Ltd. Further in the said register, nowhere the Appellant name was mentioned.
None of the ingredients of sub rule (1) of 173(Q) of the said Rules would be applicable, and no Modvat Credit was availed by the appellant on the seized raw materials. So, confiscation of raw material and imposition of redemption fine would not sustained. The Tribunal in the case of Aishwarya Plast Exporters Pvt Ltd vs. Commissioner of Central Excise, Vadodara [2009 (4) TMI 653 - CESTAT, AHMEDABAD] held that excess raw material lying in factory premises, non-recording would not invite confiscation. So, the confiscation of the raw material, plant and machinery would not be sustained. - confiscation of seized goods, plant and machinery etc., and imposition of redemption fine and demand of duty alongwith interest and penalties on the appellant are not sustainable. Accordingly, the impugned orders are set aside. - Decided in favour of assessee.
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2015 (4) TMI 890
Cenvat credit of SAD - appellant was not liable to pay SAD - refund claim was rejected - appellant found that they are unable to utilise the amount in the EPCG licence as they were going to redeem the licence in a shorter period and therefore they have taken credit in the Cenvat account - Held that:- Appellant is entitled to avail the cenvat credit of SAD as evident from the Notification in 97/2004-CUS, which was also noted by the DGFT authority and after considering that they have availed this amount in their cenvat account, this amount was not reduced towards the value of export obligation. Thus, it is clearly evident that the applicant is eligible to avail the cenvat credit on merit. - Challan is not a document for the purpose of availment of the cenvat credit. It is also observed that the appellant could have taken the credit in the cenvat account on the basis of Bill of Entry. It is revealed from the record that the appellant paid the duty by challan on the basis of the Bill of Entry generated through EDI on 13.3.2006. It is observed that the appellant has shown the reference of the Challan in their cenvat account. In my considered view, the appellant could have mentioned the reference of Bill of Entry number in their cenvat account. The appellant is also eligible to avail credit on the basis of Challan under Rule 9 of the Cenvat Credit Rule 2004 as held by the Tribunal in the case of Essar Oil Ltd (2014 (2) TMI 766 - CESTAT AHMEDABAD). - when there is substantial compliance of law the benefit of cenvat credit cannot be denied on procedural lapse - Decided in favour of assessee.
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2015 (4) TMI 857
Valuation - non inclusion of freight, insurance and unloading charges - Evasion of central excise duty - place of removal of finished goods was different from the factory gate - Held that:- Most of the orders placed with the respondent assessee were by the various Government authorities. One such order i.e. order dated 24.06.1996 placed by Kerala Water Authority is on record. On going through the terms and conditions of the said order, it becomes clear that the goods were to be delivered at the place of the buyer and it is only at that place where the acceptance of supplies was to be effected. Price of the goods was inclusive of cost of material, central excise duty, loading, transportation, transit risk and unloading charges etc. Even transit damage/breakage on the assessee account which would clearly imply that till the goods reach the destination, ownership in the goods remain with the supplier namely the assessee. As per the 'terms of payment' clause contained in the procurement order, 100% payment for the supplies was to be made by the purchaser after the receipt and verification of material. Thus, there was no money given earlier by the buyer to the assessee and the consideration was to pass on only after the receipt of the goods which was at the premises of the buyer. From the aforesaid, it would be manifest that the sale of goods did not take place at the factory gate of the assessee but at the place of the buyer on the delivery of the goods in question.
The clear intent of the purchase order was to transfer the property in goods to the buyer at the premises of the buyer when the goods are delivered and by virtue of Section 19 of Sale of Goods Act, the property in goods was transferred at that time only - CESTAT did not take into consideration all these aspects and allowed the appeal of the assessee by merely referring to the judgment in the case of Escorts JCB Ltd. [2002 (10) TMI 96 - SUPREME COURT OF INDIA] - Obviously the exact principle laid down in the judgment has not been appreciated by the CESTAT. - Decided in favour of Revenue.
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2015 (4) TMI 856
Valuation of goods - Inclusion of royalty amount - Manufacture of duplicate CD - Held that:- Section 4(1)(a) of the Central Excise Act will not apply for the simple reason that price is not the sole consideration for the sale as a master tape had to be handed over by the distributor/copyright holder to the appellant. Since Section 4(1)(b) applies, the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, would apply. - A reading of Rule 6 shows that the value of the goods referred to in the Rule shall be deemed to be the aggregate of the transaction value and the amount of money value of any additional consideration that may flow directly or indirectly from the buyer to the assessee. Both parties relied upon the explanation to further their case. Since the explanation is determinative of the present case, it is important to note that where the master tape is supplied by the distributor who is the copyright holder to the appellant, whether free of charge or at a reduced cost such master tape must be used in connection with the production and sale of goods by the assessee. What is clear from the present transaction is that the master tape contains within it music/picture in digital form. There is no doubt whatsoever that the music/picture supplied on the master tape ought to be valued and has been valued as additional consideration that flowed from the buyer to the assessee, and its value has been accepted at rupee one per CD.
Copyright value in the duplicate CD is not used in connection with the sale of such goods inasmuch as no part of the copyright which may have been passed on by the distributor to the assessee is used by the assessee in selling the duplicate CDs to the distributor who is himself the owner of the copyright. Clearly therefore on the assumption that the music/picture embedded in the master tape is inextricably bound with the copyright thereof, the copyright is not “used” by the appellant while selling the duplicate CDs to the distributor. The distributor having paid a lump sum royalty to the producer of the music, then sells, after the job work done by the appellant, the duplicate CDs in the market with the cost of the royalty loaded thereon.
Given the fact that no part of the royalty can be loaded on to the duplicate CDs produced by the appellant, the circular dated 19.2.2002 which deals with apportionment of royalty would have no application to the facts of the present case. In the circumstances, the impugned judgment is set aside - Decision in the case Associated Cement Companies Ltd. v. Commissioner of Customs [2001 (1) TMI 248 - Supreme court of India] distinguished - Decided in favour of assessee.
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2015 (4) TMI 855
Demand of interest - failure to pay fortnightly payment in terms of Rule 170G (1)(d) - absence of provision of law to raise interest - Held that:- Parliament, after taking note of this loophole has amended the law by inserting Section 11AA in the Central Excise Act, where it is provided that notwithstanding anything contained in the judgment, decree or order or directions of the Appellate Tribunal or any Court or in any other provisions of this Act or the Rules made there under, the person, who is liable to pay duty shall in addition to the duty be liable to pay interest at the rate specified in Sub-Section (2) where such payment is made voluntarily or after determination of the amount of duty under Section 11AA of the Act. Therefore, this provision is prospective in nature. It has no application to the period prior to 08.04.2011. The period which is the subject matter of this appeal is anterior to the amendment. During the said period, as rightly pointed out by the Tribunal, there was no provision of levying of interest on duty paid after determination of the dispute. - Decided against Revenue.
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2015 (4) TMI 854
Valuation of goods - whether the cost of gunny bags in which the Sponge Iron is packed in the cases in which the goods are dispatched by rail is includible in the assessable value or not - Held that:- There is no dispute that all the sales are at the factory gate and in the cases where the goods are dispatched through trucks there is no special packing. Since the Sponge Iron is sold at the factory gate without being packed, it is marketable as such, in our view the cost of special packing in the cases of transportation through railways would not be includible in the assessable value of the goods and in this regard we are supported by the judgment of the Tribunal in the cases of Goyal M.G. Gases Pvt. Ltd. vs. CCE, Ghaziabad (2014 (8) TMI 657 - CESTAT NEW DELHI). In this judgment, the Tribunal has held that during the period prior to 01/7/200 and during the period w.e.f. 01/7/2000, the packing charges would not be includible in the assessable value of the goods if the goods are marketable, as such, without being packed. cost of packing of the Sponge Iron in the gunny bags would not be includible in the assessable value.
As regards, the charges for loading of the goods on to the trucks in the factory, the same would be includible in the assessable value and the duty demand on this account has to be upheld. - impugned order is upheld only to the extent of the duty demand on the loading expenses incurred inside the factory and the rest of the duty demand, interest thereon and equivalent penalty under Section 11AC is set aside. The duty demand, which has to be upheld, is to be quantified by the Commissioner - Decided in favour of assessee.
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2015 (4) TMI 853
Clandestine removal of goods - parallel invoices - Duty evasion - Malafide intention - Preponderance of evidence - Held that:- Municipality record being public record proved the questionable modus operandi of the respondent manufacturer showing movement of clandestinely removed goods. Recording of higher quantity of production after visit by investigation self speak suppression of production prior to search. Suppressed production cleared clandestinely was proved from blank and parallel invoices found by investigation. The dealers tabulated herein before having been found to be buyers of such goods, they supported case of Revenue. Plea of unrealiability of photocopies failed to sustain when signature of director of respondent company therein was found to be same as reported by Govt. document examiner. Blank copies of invoices found from invoice book show ill intention of respondent manufacturer in absence of any explanation therefor. Goods in the factory of respondent manufacturer was found during search to have been unaccounted.
It is settled law that Revenue need not prove its case with mathematical precision. Once the evidence gathered by investigation brings out preponderance of probability and nexus between the modus operandi of the respondent with the goods it dealt, and movement of goods from origin to destination is possible to be comprehended, it cannot be ruled out that circumstantial evidence equally play a role - it is not only the photocopy that was used against the respondents, there are other credible and cogent documentary evidence, circumstantial evidence including oral evidence as well as experts report went against the respondents for which stand of Revenue cannot be criticized. The best evidence when demonstrate the modus operandi beginning from finding of unaccounted goods in the factory till parking of clandestinely removed goods and also throw light on the intention behind suppression of production which was established and corroborated by recording of higher quantity after search, the respondents made futile exercise in their defence. - For the clear case of evasion based by cogent and credible evidence came to record, dealing with the other citations made by respondents is considered to be mere academic exercise - Decided in favour of Revenue.
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2015 (4) TMI 852
Area based exemption in Jammu and Kashmir - application for fixation of special rate of value addition - alue addition of 36% specified in the exemption notification - Benefit of Notification No. 56/02-CE as amended by Notifications No. 19/08-CE dated 27/3/08 and 34/08-CE dated 10/6/08 - Held that:- Jammu & Kashmir High Court in its judgment in the case of M/s Reckitt Benckiser [2010 (12) TMI 237 - JAMMU AND KASHMIR HIGH COURT] has quashed the amendments to the Notification No. 56/02-CE by Notification No. 19/08-CE dated 27/3/08 and 34/08-CE dated 10/6/08 and the effect of the judgment would be that the provisions restricting the benefit introduced in the Notification No. 56/02-CE by these notifications are no longer there. Therefore, in our view, this judgment of Hon ble Jammu & Kashmir High Court would be applicable to those assessees also who had opted for this exemption even after the amendment to the Notification No. 56/02-CE by Notification No. 19/08-CE dated 27/3/08 and 34/08-CE dated 10/6/08. Thus those assessees who have set up their units in the areas specified under Notification No. 56/02-CE on or after 06/2/10, have option either to avail Notification No. 56/02-CE or avail the Notification No. 1/2010-CE dated 06/2/10 and in case they opt for Notification No. 56/02-CE, the benefit available to them would not be restricted by Notification No. 19/08-CE dated 27/3/08 and 34/08-CE dated 10/6/08.
If the appellant, however, opt for the Notification No. 1/2010-CE, the question of determination of special rate of value addition by the Commissioner would come. This rate has to be calculated on the basis of the formula prescribed in the Explanation to para 5 of the notification. In this regard, we do not find any mistake in para 17 of the order-in-original dated 31/5/12 passed by the Commissioner as the value addition has been determined as the difference between the sale value excluding excise, sales tax and other indirect taxes during 2011-12 (Rs. 1,05,11,690/-) and cost of raw material and packing material consumed (Rs. 32,30,184/-) - appellant s plea that the cost of raw material and packing material consumed is nil is not correct and the Commissioner has correctly determined the value addition for 2012-13 as 69.27%. If for 2013-14 the appellant opt for Notification 1/2010-CE and also opt for special rate of value addition, the same must be determined in terms of the above formula. - Matter remanded back - Decided in favour of assessee.
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2015 (4) TMI 851
Area based exemption - Manufacturing activity or not - Job work - Activity of winding the wire on the stator and thereafter were putting varnish on the wires wound on the stators, receipt of stamping rotors and electrical grade aluminum and also dies and making cast, machined and painted rotors, which were being sent back to the principal manufacturer - Held that:- duty would be chargeable on the goods being made by the appellant on job work basis only if, those goods are in fully finished condition and the same are being used by KEL as parts of fans without any further processing. But if, the items being cleared by the appellants are in the nature of semi finished goods which require further processing by KEL for being used as parts of the fans, the same cannot be treated as marketable and hence, excise duty would not be chargeable.
As regards, the question of limitation it is seen that so far as SE are concerned, there was correspondence between KEL and the Department with regard to sending of semi finished/ raw material to SE for certain job work and hence, it cannot be said that the Department was not aware of the activity of SE. Similarly, in respect of JMAPL, it is seen that during 2004, there was correspondence between them and the Department with regard to the nature of their activity and whether they are eligible for exemption under notification no. 50/03-CE and from this correspondence also it is clear that the Department was aware about the nature of their activity. In any case, when both JMAPL and SE could have availed the full duty exemption under notification no. 50/03-CE just by filing the declaration and they did not file the declaration for availing of this exemption under belief that there activity does not amount to manufacture, no malafide can be attributed to them.
In view of this, even if there is any duty demand confirmed against the appellant, the longer limitation under proviso to section 11A(i) would not be applicable and for the same reason, penalty under section 11AC would not be imposable. - Matter remanded back - Decided in favour of assessee.
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2015 (4) TMI 850
Validity of the amending Notification 19/08-CE dt.27.3.08 and Notification 34/08-CE dt.10.6.08 - Refund claim - whether the appellant would be eligible for full refund of duty paid through PLA in the manner specified in this notification or whether this benefit of notification is restricted to the duty payable on the value addition at the rate specified in the exemption notification or duty paid form PLA in the manner specified in this notification, whichever is lower - Held that:- High Court vide its order dated 12.4.2012 in respect of writ petition has ordered that --- implementation of the notification under challenge shall await the result of LPA as is pending judgement dated 23.12.2010 . In our view pending decision of LPA, the department cannot implement amending Notification 19/08-CE dt.27.3.08 and Notification 34/08-CE dt.10.6.08 which have been challenged by the appellant before the High Court. Therefore, appeal filed by the appellant against the Assistant Commissioner s order rejecting the refund claim, cannot be said to be premature. The Commissioner (Appeals) should have disposed of the appeals after decision of the LPA filed by the department against the High Court s judgement in the case of Reckitt Bencksier (India) Ltd. (2010 (12) TMI 237 - JAMMU AND KASHMIR HIGH COURT), and he should have kept the appeals pending till the decision of the LPA and he could not dismiss them as premature. - impugned order is set aside and the matter is remanded back to the Commissioner (Appeals) to decide the disputed refund claim of education cess and S&H cess in respect of the appellant s plea that they have not taken self-credit of education cess and S&H cess, therefore the question of its recovery does not arise. - Decided in favour of assessee.
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2015 (4) TMI 816
Valuation of goods - Captive consumption - Misdeclaration of value of goods - Non inclusion of value of administrative overheads, bonus, gratuity, interest, conversion charges and depreciation charges in the assessable value of the yarn - Held that:- While issuing the clarification as to how the Gross Profit, i.e., profit before depreciation and taxation or 'Profit before tax' or any other profit has to be arrived at, it is also clarified that for the purposes of calculation of value of goods captively consumed under Rule 6(b)(ii) of Central Excise (Valuation) Rules, 1975, certain steps are to be taken. - The clarification, pertains to calculation of value of goods captively consumed under Rule 6(b)(ii). It is this Rule which is undoubtedly applicable in the present case. Thus, for the first time, only in October, 1996, it was clarified that the cost of material, labour cost and overheads including administrative cost, advertising expenses, depreciation, interest, etc., would be included in the cost of production. The period with which we are concerned is prior to October, 1996, i.e., April, 1994 to September, 1996. It, therefore, cannot be said that the respondents-companies made intentional misdeclaration with the purpose to avoid payment of correct excise duty. We thus, find that the CESTAT was right in holding that extended period of limitation would not be applicable in the present case. - Decided against Revenue.
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2015 (4) TMI 815
Denial of benefit of Notification No.10/97 CE dated 1.3.1997 - Non fulfillment of conditions of notification - equipments supplied to research institutions or universities, etc. for research purposes as well as non commercial research purposes. - Held that:- respondents, intends to rely upon some material, which she submits has been downloaded from the web sites of the IITs, Universities, etc. to whom the goods were supplied, in order to demonstrate that the goods supplied were meant for research. Since this material was not produced before the commissioner, he did not have any occasion to verify the same or to consider the effect thereof. We are, thus, of the opinion that it would be appropriate to remand the case back to the adjudicating authority to discuss the aforesaid issue in the light of the material that is sought to be produced by the respondents - Matter remanded back - Decided in favour of Revenue.
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2015 (4) TMI 814
Withdrawal of exemption notification in the North Eastern Region from goods under Chapter 21.06 (Pan Masala) and Chapter 24 (tobacco and tobacco substitutes), including cigarettes chewing tobacco etc. - Principle of promissory estoppel - Held that:- After the filing of this appeal, certain subsequent events have taken place and as a result thereof, the issue is not even required to be adjudicated upon in the present appeal. It so happened that vide Section 154 contained in Finance Act, 2003, the withdrawal of the benefit was effected from retrospective effect. Validity of Section 154 was considered by this Court in R.C. Tobacco Pvt. Ltd. And Anr. vs. Union of India and Another [2005 (9) TMI 80 - SUPREME COURT OF INDIA]. This Court has upheld the constitutional validity of the aforesaid provision. The effect thereof would be that the respondent would not be entitled to any such benefit by virtue of Section 154 of the Finance Act, 2003, and the impugned judgment of the High Court loses its validity on the aforesaid ground. - Decided in favour of Revenue.
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2015 (4) TMI 813
Waiver of pre deposit - Constitutional validity of Amendment to Section 35F of the Central Excise Act, 1944 prescribing statutory pre-deposit of 7.5% / 10% and Circular No. 984/08/2014-CX - Held that:- on the date of initiation of proceedings the right to appeal also accrues on that date, as appeal is in continuation of the original proceedings. In other words, on the date of initiation of lis the aforesaid amendment was not in force. However, during the pendency of this matter the aforesaid amendment is made. - The petitioner can very well approach the appellate authority with an application for waiver of pre-deposit. The appellate authority for the time being without insisting upon pre-deposit as per the amended provision, shall consider such application in accordance with law. This order will be effected provided the petitioner prefers an appeal within fifteen days from the date of receipt of a copy of this order and make such application. In case of failure this interim order will stand vacated. - Decided conditionally in favour of assessee.
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2015 (4) TMI 812
SSI Exemption - Clandestine removal - The appellants are engaged in manufacture and trading of excisable goods - Statements of some suppliers - Invocation Section 9D - Held that:- While the allegation of duty evasion against the appellant is based on the statements of suppliers, admittedly their cross examination has not been allowed. If the adjudicator wants to invoke clause (a) of Section 9D(1), a finding has to be given that the situations mentioned in this clause exist after hearing the appellant. In this case admittedly neither a finding has been given after hearing the appellant that the witness whose statements are sought to be relied upon by the Department in support of the allegation of duty evasion against the assessee are either dead, or cannot be found, or are incapable of giving evidence, or are being kept out of way by the adverse party, or their presence cannot be obtained without an amount of delay, or expense which is unreasonable nor the witnesses who are available, have been made available for cross examination which, in our view, is necessary. - Impugned order is set aside and the matter is remanded to the Commissioner for De novo adjudication in accordance with our observations in this order. - Decided in favour of assessee.
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2015 (4) TMI 811
Demand of differential duty - Classification under heading 730290 or under heading 3810 - Rate of duty - 18% or 15% - Held that:- Department s allegation that during the period from June 1998 to February 1999, the appellant while paying duty to the Department @ 15% in respect of clearances of Thermit portion had recovered from customer railways @ 18% is based only on one tender document dated 27/5/98 to M/s IRCON wherein the rate of duty applicable in respect of supplies of Thermit portion is mentioned as 18%. However, it is seen that the M/s IRCON s letter accepting the tender does not mention the rate of duty and from some of the invoices issued to Railways during this period, which have been placed on record, it is seen that while the rate of duty is mentioned 18%, the duty actually shown in the invoices has been calculated @ 15%. In a number of other invoices though the pre-printed rate of duty is mentioned as 18%, but the same has been cancelled and modified as 15% and accordingly the duty had been charged @ 15% only. In our view, merely on the basis of the DRM, Ajmer s letter, the copy of which was not supplied to the appellant, it is not correct for the Department to conclude that during the period of dispute the appellant had recovered duty from railways @ 18%. - Matter remanded back - Decided in favour of assessee.
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2015 (4) TMI 810
100% EOU - Concessional rate of duty - Notification No. 23/2003-CE dated 31/3/2003 - DTA Clearances - Held that:- It is clear that for the purpose of DTA sale of by-product, specific permission is not required. If LOP in respect of by-products is obtained, it is sufficient requirement for sale of by-product in DTA as envisaged in Para IV. Sale of by-products is permitted under clarification issued on 19/8/1992. On going through the LOP, we observed that the LOP was issued in respect of by-product namely Hydrochloric Acid. Therefore, in terms of clarification, it provides that the sale of such by-product in the DTA may be made if such sale is permitted in the letter of permission (LOP)/letter of intent (LOI). Accordingly, a separate and specific permission is not warranted. - concessional Notification No. 23/2003 CE could not have been denied to the appellant only for the reason that they have not obtained the specific permission for sale of by-product under DTA. However, the appellant is required to comply with other conditions of policy and notification such as the total sale in DTA should not exceed 50% of FOB value of export clearance, achievement of positive NFE etc. We therefore remand the matter to the original adjudicating authority with the direction that the benefit of Notification No. 23/2003-CE should not be denied for want of specific permission. - Matter remanded back - Decided in favour of assessee.
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2015 (4) TMI 809
Waiver of pre deposit - Denial of CENVAT Credit - Non Maintenance of separate accounts - Penalty u/s 78 - Held that:- The appellant had used certain common input services in or in relation to providing of taxable and exempted service. Since they had not maintained separate accounts and inventory of the input services meant for taxable and exempted service, the department invoking Rule 6(3)(i) has demanded an amount equal to 8%/6% of the value of the exempted services i.e. 8%/6% of the rent received from letting out of the immovable property for residential purposes. However, during the period of dispute, in this case, Rule 6(3) had been amended w.e.f. 1.3.2008 to provide an additional option to a manufacturer / output service provider to reverse the credit attributable to the inputs/input services used in or in relation to the manufacture of exempted final products /provisions of exempted services. In this case, there is no dispute that the appellant have already revered the cenvat credit of ₹ 74,177/- along with interest of ₹ 18,730/- attributable to the input services used in or in relation to providing the exempted service. - In view of this, the impugned order confirming the demand of ₹ 78,57,162/- from the appellants under Rule 6(3) (i) of the Cenvat Credit Rules, 2004 along with interest and imposing penalty of equal amount is prima facie incorrect, more so, in view of the judgment of the Karnataka High Court in the case of CCE, Mangalore Vs. Kudremukh Iron & Steel Co. Ltd. (2011 (4) TMI 950 - KARNATAKA HIGH COURT ) - Stay granted.
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