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Central Excise - Case Laws
Showing 1 to 20 of 193 Records
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2015 (6) TMI 1220 - CESTAT BANGALORE
Refund of CENVAT Credit in cash - credit already utilized for payment of Central Excise duty - HELD THAT:- Cenvat credit originally used by them for payment of duty is liable to be restored in their Cenvat account, once the appellant has subsequently paid the duty in cash. The accumulated Cenvat credit cannot be allowed to a manufacturer, on the closure of their factory inasmuch as there is no provision for refund of such unutilized accumulated credit, in the Cenvat credit Rules. Accumulative reading of the said rules leads to conclude that the credit so availed by an assessee can be used for payment of duty or the final product. It is not a case where such credit was available to the appellant for utilization.
As such in the absence of any provision for refund of such accumulated credit, the refund of such credit cannot be allowed in cash - Appeal dismissed - decided against appellant.
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2015 (6) TMI 1219 - CESTAT MUMBAI
CENVAT Credit - all points raised by appellants were not considered by by first appellate authority - principles of natural justice - HELD THAT:- It is to be seen that the first appellate authority has not considered any of the points raised by the appellants in its correct perspective and has not recorded any findings in the impugned order.
These appeals need reconsideration in the hands of the first appellate authority - the appeals are allowed by way of remand to the first appellate authority, with a direction to restore the appeals to their original number and dispose them of by a reasoned order, after following the principles of natural Justice.
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2015 (6) TMI 1218 - CESTAT, NEW DELHI
Penalty u/r 27 of CER - non-renewal of letter of undertaking - allegation that the requirements under Notification No. 42/2001-C.E.(N.T.) dated 26.06.2001 not complied with - scope of SCN - HELD THAT:- Undisputedly the Notification No. 42/2001-CE(NT) dated 26.06.2001 does not state that the LUT has to be renewed every twelve months. The notification says that “the manufacturer-exporter may furnish a letter of undertaking in the form specified in Annexure II in lieu of a bond”. In para 3.4 of Chapter 7 of CBEC’s Central Excise Manual of Supplementary Instructions, 2005 it is seen stated that the “Letter of undertaking shall be valid only for a period of twelve months”. Needless to say that instructions are issued by the Board to bring uniformity in administration of law.
The appellant here in has submitted the triplicate and quadruplicate copies of the relevant ARE-I. In such circumstances when proof of export is on record the failure if any, to comply with such instruction which is not in accordance with the Notification No. 42/2001-CE(NT) dated 26.06.2001 cannot be held to be procedural lapse. The purpose sought to be achieved by such instruction is to establish the genuineness of export of goods. When the proof of export is on record otherwise, to give undue reliance upon the instruction is not called for.
The imposition of penalty is otherwise also unwarranted for the reason that the show cause notice does not mention of levy of penalty under Rule 27 of Central Excise Rules, 2002 - Appeal allowed - decided in favor of appellant.
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2015 (6) TMI 1212 - GUJARAT HIGH COURT
Maintainability of appeal - Territorial Jurisdiction - HELD THAT:- The appellant assessee has its manufacturing Unit located within the Union Territory of Daman. In view of clause (b) of Section 36 of the Central Excise Act, 1944, which contains definition of the term “High Court” in relation to Union Territory of Daman & Diu and Dadra & Nagar Haveli, the jurisdiction would be of High Court of Bombay. In that view of the matter, this Tax Appeal is not maintainable before the Gujarat High Court and Gujarat High Court does not have any territorial jurisdiction over the matters decided with regard to Union Territory of Daman & Diu and Dadra & Nagar Haveli irrespective of the fact that the Tribunal is situated at Gujarat.
This Tax Appeal is dismissed for want of territorial jurisdiction with a liberty to the appellant to seek his remedy in appropriate forum.
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2015 (6) TMI 1162 - CESTAT BANGALORE
Refund of accumulated CENVAT Credit - Rule 5 of CENVAT Credit Rules 2004 - Revenue entertained a view that since the final product of the appellant is exempted, they are not entitled to the refund of the unutilized credit - Held that:- The issue is no more res integra and stands settled by the Hon’ble Bombay High Court’s decision in the case of Repro India Ltd Vs UOI [2007 (12) TMI 209 - BOMBAY HIGH COURT], where it was held that in such case where goods are exported, direction by revenue to the petitioner to pay 10% of sale price of exempted goods u/r 6(3)(b) is not justified - appeal allowed - decided in favor of appellant.
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2015 (6) TMI 1159 - CESTAT BANGALORE
Adjustment of sanctioned refund against the demand confirmed - case of appellant is that such adjustment of the refund against pending demands have been held to be bad by various decisions of the Tribunal - Held that:- After sanctioning refund claim, the same was adjusted against the demand confirmed vide Order-in-Original No.01/2006 dated 27.2.2006. The said order of the Commissioner was impugned by the appellant before the Tribunal and even during the relevant period, when the refund was sanctioned, appeal was pending before the Tribunal - The said Final Order of the Commissioner being Order-in-Original No.1/2006 dated 27.2.2006 already stands set aside by the Tribunal vide its Final Order No.22046/2014 dated 13.11.2014 and the matter stands remanded to the original adjudicating authority.
The quantum of refund involved in the present appeal and already sanctioned on merits is required to be given to the appellant in cash - appeal allowed by way of remand.
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2015 (6) TMI 1148 - UTTARAKHAND HIGH COURT
Principles of Natural Justice - the complaint of the appellant was that the third respondent, who was the Adjudicating Officer, is not supplying the copies of various documents, which were being relied on by him - Held that: - We are not impressed by the pleas taken by the appellant as we have already noticed in view of the fact that the adjudicatory order has already been passed, necessarily the appellant will have to challenge it before the statutory Authority. That the appellant would have to deposit the amount, is an obligation attached to the filing of the appeal - appeal dismissed - decided against appellant.
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2015 (6) TMI 1139 - CESTAT NEW DELHI
Re-credit of CENVAT credit reversed erroneously - principles of unjust enrichment - job-work - Held that: - Reversal of cenvat credit and taking of such re-credit is only book entries and the appellant demonstrated with the help of documentary evidence that the amount actually reversed was taken as re-credit. In this case, the embargo created in Rule 6 ibid will not have any application inasmuch as the job worked goods removed from the factory of the appellant were used by the principal manufacturer for manufacture of excisable goods, on which appropriate central excise duty liability has been discharged - The larger benches of this Tribunal in the case of Sterlite Industries (I) Ltd. [2004 (12) TMI 108 - CESTAT, MUMBAI] has held that the provisions of Rule 57 C of erstwhile Central Excise Rules, 1994 (Parimateria to Rule 6 ibid) will not apply to the job worked goods, for further utilization in the manufacture of final product, which are cleared on payment of duty by the principal manufacture - appeal allowed - decided in favor of appellant.
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2015 (6) TMI 1135 - CESTAT NEW DELHI
Appropriation/Adjustment of the rebate amount towards the Government dues - Section 11 of the Central Excise Act, 1944 - whether, the rebate amount can be adjusted/appropriated for the Central Excise duty liability, which is under contest and the issue is sub judice before the Appellate Authority? - Held that: - the case in hand is squarely covered by the decision of the Bangalore Bench of this Tribunal in the case of Voltas Ltd. v. Commissioner of Central Excise, Hyderabad-II [2006 (5) TMI 232 - CESTAT, BANGALORE], where it was held that Section 11 should be involved only when the demands have reached finality and should not be invoked even at the initial stage - the authorities below are not justified in adjusting/appropriating the amount of rebate towards the demand confirmed in the adjudication order - appeal allowed - decided in favor of appellant.
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2015 (6) TMI 1125 - CESTAT, BANGALORE
Waste/by-product - Bagasse - excisability - reversal of CENVAT credit on GTA service - Held that: - reliance placed in the case of Balrampur Chini Mills Ltd. Vs. UOI [2013 (1) TMI 525 - ALLAHABAD HIGH COURT] where it was held that even after the amendment in Section 2(d), bagasse cannot be held to be an excisable item inasmuch as the same does not pass the test of manufacture, as defined in Section 2(f) of Central Excise Act - appeal allowed - decided in favor of appellant.
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2015 (6) TMI 1111 - GOVERNMENT OF INDIA
Rebate claim - denial on the ground that the merchant exporter have availed drawback of duty in respect of the goods for which the manufacturer has claimed the rebate of Central Excise duty paid at the time of clearance and hence, claims of rebate would result in double benefit - Held that: - The provisions of Rule 18 of Central Excise Rules, 2002 are interpreted by Hon’ble High Court of Bombay at Nagpur Bench, in the case of CCE, Nagpur v. Indorama Textiles Ltd., [2006 (5) TMI 8 - HIGH COURT OF JUDICATURE (BOMBAY)] wherein it was held that rebate provided in Rule 18 of Central Excise Rule, 2002 is only on duty paid on one of the stages i.e. either on excisable goods or on materials used in manufacture or processing of such goods. Hence, assessee is not entitled to claim rebate of duty paid at both stages simultaneously i.e. duty paid at input stage as well as finished goods stage.
The applicant could not substantiate their claim that the merchant exporter has availed only Customs portion of drawback by means of any valid documentary evidences. Hence, it can be implied that the applicant has availed both Customs as well as Central Excise portion of drawback. Under such circumstances, allowing rebate would amount to double benefit, which cannot be held admissible.
Revision application rejected - decided against applicant.
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2015 (6) TMI 1110 - GOVERNMENT OF INDIA
Recovery - duty drawback granted earlier - recovery on the ground that applicant failed to produce the evidence for realization of export proceeds in respect of impugned exported goods for which they were allowed drawback within the period allowed under Foreign Exchange Management Act, 1999 including any extensions of such period granted by the RBI - Held that: - it is a statutory requirement under relevant sections that export proceeds need to be realized within the time-limit provided thereunder viz. 6 months in this case subject to any extension allowed by RBI. As discussed above, the applicant has failed to fulfill their statutory obligations. Therefore, the order for recovery of drawback claim along with interest & penalty cannot be faulted with - revision application rejected - decided against applicant.
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2015 (6) TMI 1105 - CESTAT NEW DELHI
CENVAT credit - extension of capacity of production - whether the appellant is entitled to avail Cenvat credit on capital goods procured during the period when their product was dutiable or not? - Held that: - The relevant date for deciding the credit eligibility is date of procurement of capital goods. Admittedly, on the date when capital goods were procured their final product was dutiable - As on the date on which the capital goods were procured, the final product was dutiable, therefore,the appellant has correctly taken the Cenvat credit on capital goods and they are not required to reverse the same - appeal allowed - decided in favor of appellant.
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2015 (6) TMI 1082 - CESTAT NEW DELHI
Shortage of stock during investigation - Penalty under Rule 25 - Held that: - the Central Excise duty attributable to the shortage quantity of the finished goods has been paid by the appellant on the basis of its own ascertainment and nothing further is payable on account of duty or interest - The statement recorded from the appellant that due to storage problem, the finished goods were kept outside the factory was not refuted either by the preventive officers or the adjudicating authority - Decided in favor of the assessee.
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2015 (6) TMI 1080 - CESTAT NEW DELHI
Denial of CENVAT credit - Mandap Keeper service - service used to organize the meeting and events for promotion of their product such as launch of new vehicle, business meets, conference etc - inclusive in the definition of input service under the head 'sales promotion activities' - Held that: - on perusal of invoices raised by Hotel Maratha, Mumbai to the appellants and also the internal approval note of the appellant, indicating the purpose for which the payment has been made it is found that for launching a new swift desire car, the said expenditure has been incurred by the appellant, which is nothing but the sales promotion activities of their product, which falls under the inclusive part of the definition of input service - CENVAT credit allowed on mandap-keeper service.
Convention service - CENVAT credit denied on the ground that the conference, workshops and seminars etc., are of general nature which are not related to the automobile industry - Held that: - in the invoices, the description of service has been mentioned as "delegate fees for two participants three day VIP Programme on Vehicle Dynamics and Hardware Loop from 4.4.2012". Further, in the invoice dated 22.3.2011, the said service provider has described the service as 'Proficiency Improvement Programme on REACH registration, devaluation, authorization and registration of chemicals - obligation for automotive industry from 7th to 8th June, 2010". Perusal of the invoices makes the position clear that the services indicated therein are confirming to the taxable service i.e. Coaching and Training, which is specifically finding place in the definition of input service for the purpose of taking the CENVAT credit - CENVAT credit allowed on convention service.
Appeal allowed - decided in favor of appellant.
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2015 (6) TMI 1077 - CESTAT NEW DELHI
Cenvat credit - whether cenvat credit can be taken by the appellant for the capital goods relates to some other plant, which was not operational at the material time and that the Cenvat Credit attributable to the capital goods of such other plant (Ethanol Plant) can be used for removal of sugar and molasses from the factory of the appellant - Held that:- the plant facilities, such as sugar molasses and Ethanol are situated within the same factory premises of the appellant and the factory as a whole has been registered under the Central Excise statute. Since the above final products are subjected to levy of central excise duty, the inputs and capital goods used/utilized for manufacture of the final product will be eligible for cenvat credit. Rule 3 of the Cenvat Credit Rules only specifies that the duty paid capital goods received in the factory of manufacture of final product will be eligible for availment of cenvat credit. There is no restriction contained in the said Rule that the capital goods used in the factory under construction situated within the common factory shall not be eligible for cenvat credit. Further, sub-rule (4) of Rule 3 of Cenvat Credit Rules permits the manufacturer to utilize cenvat credit on payment of duty of excise on any final product manufactured by him.
On a close reading of Rule 3 and Rule 4 of the said rules, it transpires that no restrictions have been imposed that where the plant in a factory is not operational, the cenvat credit taken on the capital goods installed in the said plant will not be eligible for cenvat credit and the credit so taken shall not be eligible for utilization towards the other excisable goods manufactured and cleared from the said factory. Since no restrictions have been imposed in the cenvat credit rules for not taking the cenvat credit on the capital goods installed in the factory, where final goods have been manufactured by the appellant, the denial of cenvat credit is not justified. - Decided in favour of appellant
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2015 (6) TMI 1074 - CESTAT NEW DELHI
Cenvat credit - availed cenvat credit on transport of goods by road service and utilized the same for payment of service tax attributable to the output service - credit denied on the ground that the appellant was availing credit of service tax on freight incurred for inward transportation of vehicles to be sold from the show room, which was not a taxable service - nexus between input services and output service - Held that:- in view of the judgment of Hon'ble Andhra Pradesh High Court in the case of Commissione Vs. Shariff Motors [2013 (12) TMI 1476 - ANDHRA PRADESH HIGH COURT], the impugned order is set aside. - Decided in favour of appellant
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2015 (6) TMI 1072 - CESTAT NEW DELHI
Imposition of penalty - Rule 25 of the Central Excise Rules, 2002 - non-availability of daily stock account in the factory - records not maintained - Held that:- it is seen that there is no allegation of clandestine removal of goods from the factory by the appellant. The only allegation leveled against the appellant by the authorities below is that daily stock account as provided under Rule 10 of the Central Excise Rules, 2002 has not been maintained by the appellant. Since the goods have not been removed from the factory and in view of the fact that the stock accounts have been maintained, which at the material time, was available with the Chartered Accountant of the appellant company, the allegation leveled against the assessee, justifying confiscation of goods and imposition of penalty are not legal and proper supported by the judgment of Hon'ble High Court in the case of CCE vs Saurasthra Cement Ltd, [2010 (9) TMI 422 - GUJARAT HIGH COURT] and Supreme Industries Ltd. vs CESTAT, New Delhi, [2007 (5) TMI 25 - HIGH COURT,MADHYA PRADESH] that in absence of fraud, collusion, suppression with intent to evade payment of duty, penalty cannot be imposed under Rule 25 ibid. Therefore, confiscation of goods and imposition of penalty under Rule 25 of the Central Excise Rules, 2002, read with Section 11 AC of the Central Excise Act, 1944, are not in conformity with the statutory provisions. - Decided in favour of appellant
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2015 (6) TMI 1069 - CESTAT NEW DELHI
Refund claim - availed Cenvat credit of Central Excise duty paid on lubricants used in the dumpers, treating the same as inputs - immediately reversed the Cenvat credit on objected by the Internal Audit Wing of Central Excise Department - Held that:- the scope of input is very wide and the definition clearly provides all goods used in the factory of the manufacturer/producer shall be considered as ‘input’ for the purpose of taking Cenvat credit. I find that lubricant is not itemized in the excluded category of goods, for which the definition of input has created the embargo for not extending the Cenvat benefit. Therefore, I am of the considered view that Central Excise duty paid by the appellant on the input i.e. lubricant will be eligible for Cenvat credit. - Decided in favour of appellant
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2015 (6) TMI 1065 - CESTAT, BANGALORE
Benefit of service tax paid on GTA Services - availed by them for outward transportation of their final products from the factory gate to their customer's premises - major part of demand involved in the demand is prior to 01.04.2008 - Held that:- the issue for the prior period stands decided by the Hon'ble High Court of Karnataka in the case of Commr. of C.Ex. & S.T., LTU, Bangalore Vs. ABB Ltd. [2011 (3) TMI 248 - KARNATAKA HIGH COURT] vide which Larger Bench decision of the Tribunal was upheld. Therefore, in view of the same the period prior to 01.04.2008 would not attract any demand and the matter is remanded to the original adjudicating authority for examining the appellant's claim that their sales were on FOR basis. - Appeals allowed by way of remand
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