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Central Excise - Case Laws
Showing 21 to 40 of 277 Records
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2016 (1) TMI 1253
Denial of exemption claim - Customs Notification No. 42/96 dated 23.07.96 - the decision in the case of M/s Jain Irrigation Systems Ltd Versus Commissioner of Centra Excise, Coimbatore [2015 (10) TMI 1336 - CESTAT CHENNAI] contested - Held that: - The appeal, being sans merit, stands dismissed.
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2016 (1) TMI 1251
100% EOU - clandestine removal - supply of goods without issuance of invoice - confiscation - penalty - Held that: - once the CT 3 certificate was issued the duty liability if at all arises stands shifted to the recipient who has issued the CT3 certificate and the appellant s clearances are covered by CT 3 is not chargeable to duty. I find that there is indeed delay in obtaining the CT3 certificate but same can be considered as procedural lapse.
SCN issued on 29-5-2000, at that time sub Rule 173Q (2) was not in force and the saving clause which was brought is Section 38A is effective from 11-5-2001 therefore there was no machinery provisions of sub rule (2) of 173Q on the date of issue of SCN, therefore confiscation of land, building etc is illegal accordingly, redemption find of ₹ 1 lacs is hereby dropped - As regard the redemption fine of ₹ 89,206/- on the confiscation goods valued of ₹ 3,56,825/-, I find that goods valued at ₹ 1,40,819/- were seized at premises of M/s. Volent Textile Mills Ltd at that stage, the goods did not belong to appellant therefore redemption fine cannot be demanded from appellant, however some redemption fine is warranted. Taking into consideration value of the goods seized at premises of M/s. Volent Textile Mills Ltd and other aspect I reduce the redemption fine of ₹ 89,206/- to ₹ 40,000/-.
As regard the penalty of ₹ 4, 24, 373/- imposed under Section 11AC on the appellant, I find that since the duty liability was reduced as discussed above the said penalty shall also stands reduced to the duty stand confirmed as per the above discussion.
Appeal disposed off - decided partly in favor of appellant.
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2016 (1) TMI 1249
Imposition of penalty on company and director - whether imposition of penalty justified on the ground that respondent (M/s. Ganpati Ispat) paid the entire amount of duty demand along with interest and 25% of the mandatory equal penalty within 30 days of issuing the SCN - Section 11A(1A) of the Central Excise Act, 1944 - Held that: - As per the said section, once the payments as Section 11A(1A) ibid were made, no notice was required to be served and the proceedings in respect of other persons also were to be deemed to be concluded - the proceedings against the appellant were required to be deemed to be concluded with the payments made - appeal dismissed - decided against Revenue.
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2016 (1) TMI 1248
Imposition of penalty u/s 11AC of the Central Excise Act - confiscation - CENVAT credit - assessee opted for exemption from payment of Central Excise duty in terms of N/N. 8/2003 dated 01.03.2003. While opting to avail SSI exemption benefit as stipulated in the above notification, the assessee is required to reverse the CENVAT credit on inputs lying in stock and on inputs contained in finished and semi finished goods lying in stock - the reversal of credit is in dispute in the present case - Held that: - The appellant had been filing regular returns reflecting the credit availed by them. So also they intimated their intention to avail benefit of SSI exemption by filing letter to the Department dated 05.04.2003. It is also to be considered that the N/N. 8/2003 dated 01.03.2003 was a new notification during that period After filing letter opting for SSI exemption, the respondent has filed the quarterly returns on 17.07.2003 showing the reversal of credit of ₹ 3,500/-. This return was scrutinized by the department only in January, 2004 Meanwhile, the Anti-Evasion Wing conducted search in the premises of respondent. Thus search was before scrutiny of returns. The notice was issued to the appellant not on basis of the returns filed by the respondent. It is for this reason that Commissioner (Appeals) has observed that the department could have conducted scrutiny of the returns which disclosed the reversal of credit and called for details from the respondent. That the mistake ought to have been pointed out to the respondent even before search and SCN as the mistake is only a remedial mistake.
In spite of the search conducted in the premises and verification of records done by the Anti-Evasion Wing of the Department, no case has been alleged against the respondent that the respondent availed wrong credit or that the respondent availed irregular credit with intent to evade payment of duty. This can only point to the conclusion that the credit availed by the respondent and the returns filed are proper and do not contain any discrepancy.
Non-maintenance of input stock cannot be a criterion to conclude suppression when the stock can be arrived at by the quantity in process and by quantity of final products.
Penalty set aside - appeal dismissed - decided against Revenue.
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2016 (1) TMI 1246
CENVAT credit - non-existent dealer - adequate information not provided - investigation at the end of the appellant has been done after four and half years of the investigation started at the end of manufacturer/supplier and not even the factory of the appellant was searched - Held that: - as per the provision of Central Excise Act or the Rules, there is no duty cast on the appellant for verification of contents of manufacturer/supplier before procuring the goods as it has been given without credible evidence by the Revenue that the appellant has not received the goods - the credit cannot be denied to the appellant - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1245
CENVAT credit - Aluminium rolls/sheets - Aluminium Rolled High Tensile Steel sheets - whether Cenvat credit availed on Aluminium rolls/sheets and Aluminium Rolled High Tensile Steel sheets are eligible for credit as capital goods/components/spares/accessories? - Held that: - There is no dispute that these goods have not been used in the factory. The items have been used as insulation to pipes and tubes, so as to enable the distribution of steam effectively from boiler and would necessarily be an accessory by adding to the usefulness and effectiveness of the main equipment. In view thereof, the denial of credit is unjustified - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1243
SSI Exemption - Determination of turnover - manufacturing of D. G. Sets - whether Installation and commissioning is a different activity and shall not form part of assessable value - the decision in the case of M/s Sukalp Agencies Chinahat Lucknow Thro Its Proprietor Versus The Commissioner Of Central Excise [2013 (7) TMI 534 - ALLAHABAD HIGH COURT], contested - Held that: - SLP dismissed.
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2016 (1) TMI 1241
100% EOU - N/N. 52/2003-Cus. dated 31.3.2003 - The appellants have made use of aluminium ingots both imported as well as procured indigenously and sent them to job workers for converting the same into aluminium castings which were used in the further manufacture of automobile parts. During the course of production of automobile parts, aluminium scrap is generated - In respect of scrap generated beyond the norms of 6% in the impugned order customs as well as excise duty have been demanded in respect of quantum of ingots proportional to the excess quantum of scrap generated.
Whether such excess exemption is to be ignored or whether the duty is to be demanded on the portion of aluminium ingots lost in such excess wastage?
Held that: - the quantum of ingots which has been consumed towards wastage beyond the norm of 6% is to be considered as utilised beyond the scope of the permission for procurement of duty free inputs. However, since absolutely no evidence of diversion or suppression is on record, I find it difficult to sustain the charge of suppression and invoking the extended time limit for demand of such duty - All the demands are to be paid along with interest.
In the absence of any suppression, there is no justification for imposition of penalty and the same are set aside.
Appeal disposed off - decided partly in favor of appellant.
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2016 (1) TMI 1237
Imposition of penalty u/s 11AC of the Central Excise Act, 1944 - Held that: - even though the demand is for extended period but there appears to be no suppression of fact on the part of the appellant. The penalty u/s 11AC can only be imposed if the non payment of duty is by the reason of fraud, collusion, suppression of fact etc. The Ld. Commissioner (Appeals) has not gone into this aspect he has waived the penalty only relying on the judgment of M/s. Machino Montell (I) Ltd. [2004 (4) TMI 101 - CESTAT, NEW DELHI], prevailing at that time therefore the matter need to be remanded to the Commissioner (Appeals) for reconsideration of the case - appeal allowed by way of remand.
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2016 (1) TMI 1232
Recovery of interest - reversed CENVAT credit - goods destroyed and availed remission of duty whether in the facts and circumstances of the case, interest is applicable on the credit availed on the inputs, which were used in the manufacture of finished products, but later the finished goods were destructed being unusable, and remission of duty allowed on the finished goods? - interpretation of statute.
Held that: - I do not find any stipulated therein, requiring the assessee to reverse the interest on the amount of CENVAT credit availed on the inputs that were used in manufacture of finished goods allowed to be destroyed after permitting remission of duty under Rule 21 of Central Excise Rules, 2002. It is settled principle of law that the taxing statute to be read as it is without addition or subtraction of the words to cull out the meaning - reliance placed in the case of M/s. Greatship (India) Ltd. Versus Commissioner of Service Tax, Oil and Natural Gas Company Ltd. [2015 (4) TMI 1006 - BOMBAY HIGH COURT], where it was held that It is equally settled that a taxing statute is required to be strictly construed. Common sense approach, equity, logic, ethics and morality have no role to play while interpreting the taxing statute.
Appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1212
Cement and clinker - CENVAT credit - welding electrodes - whether CENVAT credit is admissible in respect of welding electrodes and gases used for repair and maintenance of plant and machinery? - Held that: - In Kisan Co-Operative Sugar Factory Ltd. Vs. CCE, Meerut-I, [2013 (8) TMI 98 - CESTAT NEW DELHI] relying upon the judgment of Hon’ble Chhattisgarh High Court in case of Ambuja Cement Eastern Ltd. [2010 (4) TMI 429 - CHHAITISGARH HIGH COURT ], it has been held that welding electrodes used for repair and maintenance of plant and machinery eligible for Cenvat Credit.
It was observed therein that in Sree Rayalseema Hi Strength Hypo Ltd., [2012 (11) TMI 255 - ANDHRA PRADESH HIGH COURT] the Honble Court has not considered the point as to whether manufacturing operations was commercially feasible without regular repair and maintenance of the plant and machinery by using welding electrodes - the impugned order is not sustainable - credit allowed - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1210
Validity of N/N. 11/2007-C.E., dated 1-3-2007 - restoration of N/N. 8/2004-C.E., dated 21-1-2004 - appellant engaged in manufacture of jarda scented tobacco falling under Tariff Item No. 2403.99.30 or 2403.99.10 of the First Schedule to the Central Excise Tariff Act, 1985 - the petitioner No. 1 commenced the commercial production on 8-8-2000 and the petitioner No. 2 commenced the commercial production on 24-12-1997 and as such, in terms of the N/N. 69/2003-C.E., dated 25-8-2003 read with Notification Nos. 32/99-C.E. and 33/99-C.E., dated 8-7-1999 - whether the petitioners are entitled to have the benefits irrespective of the lapse in issuing the notification in terms of the NEIP, 1997?
Whether the impugned notification dated 1-3-2007, Annexure-L to the writ petition is hit by promissory estoppel by restraining premature withdrawal of the benefits? - Held that: - The promissory estoppel basically prevents a party to a contract from acting in a certain way because it was promised not to act in that way and the other party to the contract relied on that promise and acted upon it. The licence is fundamentally, when is accepted, a contract though its execution might flow from any statutory power. The doctrine therefore applies even to the licence agreement.
In view of the saving clause as engrafted in NEIIPP, 2007, as the petitioners’ units have commenced commercial production on or before 31-12-2007 will continue to get benefits/incentives under NEIP, 1997 in terms of the N/N. 8/2004-C.E., dated 21-1-2004 subject to the notification dated 25-4-2007. For deposit, the petitioner would get relaxation for purpose of counting limitation in terms of N/N. 28/2004-C.E., dated 9-1-2004. The limitation would start from this day for compliance of the modality as laid down in the N/N. 8/2004-C.E., dated 21-1-2004 and 28/2004-C.E., dated 9-7-2004. This court, however, has not made any observation consciously as to the petitioners’ entitlement under the scheme. The competent authority would decide the same.
Whether the N/N. 69/2003-C.E., dated 25-8-2003, Annexure-H to the writ petition has been completely eclipsed by the N/N. 8/2004-C.E., dated 21-1-2004, Annexure-I to the writ petition? - Held that: - no relief in terms of the said notification dated 25-8-2003 can be granted to the petitioner. On a comparative study of those notifications, this court finds that the notification dated 25-8-2003 has for all purposes merged with the notification dated 21-1-2004. The fundamental provisions made in the notification dated 25-8-2003 have not been debased by the notification dated 21-1-2004. The notification dated 21-1-2004 has expanded the benefit further but with certain restrictive conditions. The petitioners have not challenged the said notification dated 21-1-2004. As corollary thereof, this court is of the view that there had been no eclipse - the petitioner would continue to get the benefit in terms of the promise re-extended by Para 2 of the Office Memorandum dated 1-4-2007 Annexure-K to the writ petition for the remaining period in terms of NEIP, 1997.
Whether there is any misuse of process or public interest element justifying the withdrawal of benefits as granted by the NEIP, 1997 by virtue of the notification dated 1-3-2007, Annexure-L to the writ petition? - Held that: - As this has been held that the respondents have failed to show that the petitioner has misused the incentives or taken undue advantage, the said notification dated 1-3-2007 is hit by the promissory estoppel. In this regard it would be apposite to say that the dispute as to whether the petitioner would be entitled to get duty exemption on certification of investment in the social sector in terms of the notifications dated 21-1-2004 and 9-7-2004 is to be verified by the Investment Appraisal Committee (IAC) and on their certification only the exemption can be availed. Hence, absence of “proper investment” as alleged, cannot be termed as misuse or undue advantage - The cumulative effect is that the notification dated 1-3-2007, Annexure-L to the writ petition, cannot be sustained and accordingly the same is set aside.
Petition allowed - decided in favor of petitioner.
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2016 (1) TMI 1208
Maintainability of appeal - till date the representation has not been addressed to by the Chief Commissioner or the Principle Commissioner hence they have filed this appeal before this Tribunal - whether an appeal lies before this tribunal or otherwise? - Held that: - On plain reading of Section 129A of the Customs Act, 1962, we find that as the order has been passed by the Commissioner of Customs as an adjudicating authority is also defined under Section2(1) of Customs Act,1962 which means an authority competent to pass any order or decision under this Act. It is very clear from the reading of the regulations that they were enacted under the powers of Section 157 of the Customs Act, 1962 for furtherance of activity under the Said Act - this appeal lies before this Tribunal - appeal maintained - decided in favor of appellant.
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2016 (1) TMI 1203
CENVAT credit - MS items - Held that: - The appellant has produced the Chartered Engineer Certificate photographs and other documents to show that MS items were used for installation, erection of plant and machinery/spares/parts/components of capital goods - The issue is settled in the decision laid in Mundra Ports and SEZ Ltd. [2015 (3) TMI 661 - MADRAS HIGH COURT] wherein it was held that credit is admissible on MS items used for support structure of capital goods/components/ parts - credit allowed - appeal allowed - decided in favor of assessee.
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2016 (1) TMI 1202
CENVAT credit - denial of credit on M.S. Items used for manufacturing capital goods - Held that: - reliance placed in the case of CCE, Jaipur Vs Rajasthan Spinning and Weaving Mills Ltd. [2010 (7) TMI 12 - SUPREME COURT OF INDIA] and India Cements Ltd Vs CESTAT Chennai [2015 (3) TMI 661 - MADRAS HIGH COURT] held that the assessee was entitled for credit on the MS Items used for fabrication of capital goods/accessories/parts and structural supports to plant and machinery - the disallowance of credit is not justifiable - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1197
Remission of duty - whether the fire which occurred in the appellant’s premises, which originally started in the adjoining factory and later on spread to his factory, was an unavoidable accident and can be said to have occured due to the reasons beyond control of the appellant and, whether the appellant is entitled to the remission, as claimed by him? - Held that: - the learned Commissioner have erred in holding that the fire accident was avoidable and was due to negligence and carelessness on the part of the appellant. In view of the categorical finding of Chief Fire Fighting Officer, it is an unambiguous conclusion that the fire started in the adjoining factory of M/s. Jandial Shoe Factory thereafter spread to the adjoining factory of Golden Eagle Shoe and from their pursuant to caving in of the roof the fire spread to the appellant’s factory and immediately engulfed the whole factory. We have further found that the appellant had given timely notice to the Excise Authorities and hence, no case of negligence is made out against him which could have prevented the Excise Authorities in verifying the accident and/or loss.
Rejection of quantum of loss is also erroneous and no reasons have been given for the same. In case of fire where everything is lost, the loss is to be estimated on the basis of some parameters and on past records.
The appellant is held to be entitled to remission claim - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1188
Valuation - physician samples - contravention of provisions of section 4 of the Central Excise Act r/w rule 4 of the Central Excise Valuation (Determination of Excisable Goods) Rules, 2000 - Held that: - It is noticed that duty demand of ₹ 9,17,616/- has already been paid by the assessee almost 10 months before issuance of show cause notice. Since the duty demand together with interest was paid before issuance of show cause notice and, since it was observed by both the authorities below that there was no intention on the part of the assessee to evade duty, the decision rendered by the Commissioner (Appeal) as well as CESTAT directing waiver of penalty under section 11AC of the Central Excise Act, 1944, does not appear to be erroneous. It has been observed that imposition of penalty under section 11AC of the Act is warranted only when there is fraud, collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or rules made thereunder with an intention to evade payment of duty. Since these circumstances do not exist in the instant matter, imposition of penalty worked out under section 11AC of the Act was not justified and has been rightly waived. Apart from that, as per the instructions issued by the Central Board of Excise and Customs on 17.12.2015, in respect of providing mandatory limit for filing appeal by the department before CESTAT, High Court or the Supreme Court, the threshold limit prescribed in that behalf should have been applied and the instant appeal ought not to have been presented by the revenue. Even otherwise, on consideration of merits of contentions also, no interference is called for in the appeal - appeal dismissed - decided against Revenue.
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2016 (1) TMI 1187
Cement and clinker - irregular availment of CENVAT credit on welding electrodes used for repair of pre-heater, kiln, crusher and cilos and other machinery - Held that: - reliance placed on the decision of the case of Kisan Cooperative Sugar Factory Ltd Vs CCE. Meerut 1 [2013 (8) TMI 98 - CESTAT NEW DELHI], where it was held that welding electrodes used for repair and maintenance of plant and machinery eligible for Cenvat Credit - CENVAT credit allowed - appeal allowed - decided in favor of appellant-assessee.
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2016 (1) TMI 1186
Remission of duty - Lost in fire - Demand - Rule 49 of CER, 1944 read with Rule 21 of CER, 2002 - Held that: - The conditions which has been prescribed for remission of duty, are natural causes, or unavoidable accident and the product becoming unfit for human consumption or marketing. The ld. Commissioner have also erred in holding that electric short circuit in his view cannot be said to be a natural cause. Under the facts that all the records of the appellant had been destroyed in fire, the ld. Commissioner and have erred in observing that in the intimations given to the Revenue recording the fact of fire and loss given on 24-05-1999 and 07-02-2000 without any supporting or statutory records to the satisfaction of the Revenue Officer - Appeal allowed - decided in favor of the assessee.
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2016 (1) TMI 1183
Without prejudice to the other submission made in the appeals, it is submitted that the applicant has not recovered and duty from the customers. Therefore, the sale price of the resultant materials should be treated as cum duty price - Explanation to Section 4 of the Central Excise Act - Circular DOF No. 384/1/2003-TRU dated 28.2.2003 - Held that: - It is pertinent to note that the Hon'ble Supreme Court in the case of CCE vs. Dempo Engineering Works Ltd. [2015 (4) TMI 961 - SUPREME COURT], held that Tribunal was not agreeing with the order of the Commissioner, the order of the Tribunal should have been a speaking order dealing with the reasoning given by the Commissioner and stating as to why the said reasoning was faulty. - issue as to whether the product is marketable or not was not even raised by the respondent in reply to the show cause notice nor was it argued before the Commissioner and therefore on that ground the Tribunal could not have allowed the appeal.
We find that the judgment of the Hon'ble Supreme Court cited above is applicable in the facts of the present case and in our considered opinion, the new ground which the applicant is seeking to raise cannot be raised at this stage as the ground is not purely legal in nature. Consequently, we do not find any merit in the applications moved by the applicant/appellant and we dismiss the same.
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