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Central Excise - Case Laws
Showing 261 to 277 of 277 Records
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2016 (1) TMI 62
Duty demand - shortages in inputs received and goods which are part of work in progress - Held that:- They are contesting the findings of the Commissioner (Appeals) in paras 6.1 and 7 of the impugned order. We find that apart from arriving at contradictory findings regarding work-in-progress, the Commissioner (Appeals) failed to consider the explanation offered by the assessee about the accounting process and clearance of all production to 100% EOU. No cross verification on receiptient's end or analysis of accounting process as explained by assessee has been done by the lower authorities. The stock of work-in-progress keeps on changing during the manufacturing process from one stage to another. A combined examination of items in various stages of processing is required. No finding has been recorded on this as well as on the claim of certain destructive tests carried out by assessee - Commissioner (Appeals) held that no clandestine clearance of castings has been evidenced, he upheld demand of duty on castings without any reasoning. His finding that cenvat credit available on ingots is to be reversed is without any basis and, in any case, the final confirmation of demand of duty on castings using such finding is totally misplaced. - Decided in favour of assessee.
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2016 (1) TMI 61
Denial of CENVAT Credit - Capital goods - goods claimed to have been manufactured using these items are not capital goods, but structural items used for erection and installation of capital goods - Held that:- Onus whether the impugned items were inputs used for manufacture of final products is on the respondents/assessee - Revenue has not adduced any evidence to show that these items were used in making of structures embedded in the earth for support of machinery or the building. So also there is no case that it was used for construction of factory shed, or laying foundation. The Technical Certificate shows the quantity of these items used for making of storage tank for raw material, conveyor system, kiln cooler & chimney, Transfer Chutes, Intermediate Bin and Storage Tank for products. These goods are covered under Chapter 84 of the CETA 1985. The respondents have established that the steel items were not used for laying foundation or for building supporting structures and therefore the facts of the instant case, in my view, is outside the purview of application of the principle laid in Vandana Global Case (2010 (4) TMI 133 - CESTAT, NEW DELHI (LB) ). - Decided against Revenue.
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2016 (1) TMI 60
Denial of CENVAT Credit - Fraudulent credit - credit on invoices without actual receipt of goods - Held that:- Appellants company neither received the inputs nor cleared final products and the entire transactions were only on paper with an intention to pass on irregular modvat credit to their buyers. We find in the present case as the transactions are only on paper and as such, the credit availed without receipt of inputs and credit utilization without clearance of final products will only pass on the undue benefit or credit with reference to buyers from respondent for such fictitious clearance of final products who in turn could have availed cenvat credit. In other words, as the appellants admittedly have not manufactured any item relevant to the present case, the question of payment of such duty on final products does not arise. As such, the passover of credit by them to a third party becomes crucial for full compensation of revenue loss due to this illegal acts. In this situation, we find that the credit of duty utilized for purported clearance of final product by the appellants resulting in cenvat credit availment by buyers stands recovered at the buyers end as admitted by both the sides. The appellants in the written submissions submitted that the full amount of cenvat credit in the improper paper transactions stand recovered along with 25% of penalty in pursuance of stay order of the Tribunal. The plea of the appellants is that concessional penalty of 25% should be available to them as the full duty involved (irregular credit) stand recovered - appellants are eligible for reduced penalty of 25% in terms of proviso to section 11 AC - Appeal disposed of.
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2016 (1) TMI 59
Cenvat Credit - input used for manufacture of capital goods to be used captive - Exemption under Notification No. 67/1995-CE dated 16/03/1995 - steel structures which are emerging are not capital goods - CENVAT Credit - Held that:- All the frames are essential 'accessory' of that machine with which it is installed. The third group is consist of chimney and flue duct. Chimney is used for emission of fumes and gases and flue duct is used for holding transferring gases for their emission through chimney. They are essential 'accessories' in the respondent plant. Therefore, all the 'impugned goods' as mentioned above are covered in the scope of term 'accessories' in the definition of capital goods at clause (ii) of Rule 2 (b) of the Cenvat Rules because they are specifically designed, fabricated/manufactured as per specific technical requirements and they are technological necessity of the plant for the manufacture of Iron and steel products in respondent's factory and they are essentially required for running the plant and machinery. Since no evidence has been adduced to establish that these goods have not been used in the factory of manufacturer and therefore the respondent has complied with the condition of Rule 2 (b) of Cenvat Rules that "such goods should be used in the factory of the manufacturer of final product"
It is not possible to compare Steel Support Structures of Conveyors to Crane Girder, Crane Column in as much as the later items are very much part or accessories necessary for functioning of the Crane, Mere allegation that impugned goods are used in foundation or construction platform is not sufficient to deny the benefit in view of specific and categorical findings of both the lower Authorities. - Decided against Revenue.
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2016 (1) TMI 58
Availment of Cenvat Credit of service tax - GTA Service - Held that:- provision of Rule-3 of Cenvat Credit Rules, 2004, read with Rule-9 of Cenvat Credit Rules were sought to be applied for denying to the Cenvat Credit on the ground that TR-6 challan is not a proper document for availing Cenvat Credit - authoritative judicial pronouncement (unreported) of the Jurisdictional High Court on the same issue, in favour of the assessees, we hold that the impugned order cannot be found faulty. - Decided against Revenue.
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2016 (1) TMI 57
Confiscation of goods where the duty has been set aside on the ground of period of limitation - Held that:- if the entire duty liability has been set aside, confiscation of the goods which are seized from the appellant's premises, does not stand good any more. In view of the fact that demand of duty, holding that the goods were manufactured and liable to duty, has been set aside and as the said order is not unconnected from the impugned order, nothing survives for holding that the goods are liable to confiscation. - Decided in favor of assessee.
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2016 (1) TMI 56
Review Petition against the order [2015 (5) TMI 447 - SUPREME COURT] - We find no error much less apparent in the order impugned. The review petition is, accordingly, dismissed. - In that case, while upholding the demand, levy of penalty was set aside.
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2016 (1) TMI 21
Distribution of Cenvat Credit of input services received at Head office - Input Service Distributor (ISD) - credit exclusive related to one unit (which exempted) and distributed to other unit - Held that:- In terms of Rule 7(b), the service tax attributable to service used in a unit 'exclusively' engaged in the manufacture of exempted goods is not available. The expression 'exclusively' appearing in the said Rule relates to the unit and not to the service tax. The unit has to be exclusively engaged in the manufacture of exempted goods meaning thereby that if service tax stands utilized in a unit which is manufacturing exempted as also dutiable goods, the said Rule will have no application. The expression "exclusively" is not associated with the word "service tax" as suggested by the learned advocate.
The credit of service tax in respect of services used in the said Rudrapur unit is not available to the appellant's ISD. The order of the lower authorities to that extent, disallowing proportionate credit is upheld.
Levy of penalty for wrong utilization of credit - Rule 15(3) of the CENVAT Credit Rules - Held that:- The period involved in the present appeals is April 2006 to April 2010. - The said Rule provided maximum penalty of ₹ 2000/-
While confirming the demand of credit, penalty reduced - Decided partly in favor of assessee.
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2016 (1) TMI 20
Method of valuation - Transaction value u/s 4 or MRP based value u/s 4A - manufacture and clearance of chocolates falling under chapter sub-heading 1801.00 individually weighing 3.9 gms and 14 gms. in separate pet jars for sale. - Held that:- the issue is now squarely covered by the judgment of the Tribunal in the case of Swan Sweets Pvt. Ltd. [2006 (1) TMI 269 - CESTAT, MUMBAI] wherein two appeals of the very same assessee were also allowed. - putting the individually small pieces into big jar would not make them liable to duty subject to MRP based duty. - Decided in favor of assessee.
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2016 (1) TMI 19
Cenvat Credit - Eligible input services - nexus with manufacturing activity - input services like, CHA service, Advertising Agency's service, Chartered Accountant's service, Photography Services, Maintenance or Repair service, Stock Broking services, Technical Inspection & Repair service, Stock Broking services, Technical Inspection & Certification Services - Held that:- this bench in the respondent's own case [2015 (11) TMI 100 - CESTAT MUMBAI] had held that any services which are considered for pricing of final product, CENVAT Credit should be allowed. - appeal filed by the Revenue is devoid of merits - Decided in favor of assessee.
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2016 (1) TMI 18
Cenvat Credit - Eligible input services - nexus with manufacturing activity - input services such as canteen, construction, courier, vehicle insurance, mobile bill and security services and other services rendered at their units at Chennai, Assam and Uttarkhand - Held that:- Cenvat credit on construction and maintenance service and outdoor catering/canteen service, prior to the amendment made to the definitions to input services under Rule 2(l) of the Cenvat Credit Rules, 2004 w.e.f. 01-04-2011, is an eligible input service. The demand being held as ineligible cenvat credit of service tax and the penalty imposed is liable to be set aside. - Decided in favor of assessee.
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2016 (1) TMI 17
Maintainability of appeal before the tribunal - whether in terms of clause (b) of proviso to section 35B(1) of the Central Excise Act, appeals against orders relating to rebate on goods supplied to SEZ, will lie to the Appellate Tribunal - Held that:- In the case of Hindustan Petroleum Corpn. Ltd. vs. Commissioner of C.Ex, Mumbai [2013 (12) TMI 1133 - CESTAT MUMBAI] the Tribunal held that appeal against orders on refund in respect of goods supplied to SEZ are not maintainable under proviso (c) to section 35(1) of the Central Excise Act. In the case of Tata Consultancy Services Ltd. vs. Commr. of C.Ex. & S.T (LTU), Mumbai [2012 (8) TMI 500 - CESTAT, MUMBAI] an appeal regarding refund in respect of services supplied to SEZ was entertained by the Tribunal. Also in Commissioner vs. Shree PLA Pvt. Ltd. [2010 (3) TMI 995 - CESTAT BANGALORE] Tribunal decided on appeal relating to 'exports' from DTA to SEZ. In Rohit Poly Product Pvt. Ltd. [2013 (2) TMI 57 - GOVERNMENT OF INDIA] and in Indo Amines Ltd. [2013 (3) TMI 142 - GOVERNMENT OF INDIA] the Joint Secretary (RA) passed Orders-in-appeals against orders-in-appeal in matters relating to rebate on supplies from DTA to SEZ.
Reading proviso (b) to section 35B to mean that it includes cases relating to goods supplied from DTA to SEZ is only an inevitable corollary to holding that such supplies may be treated as export. While doing so the legal fiction is not being extended beyond the purpose for which it was created. We hold so because there does not appear to be any intent to treat such deemed exports differently for the purpose of proviso (b) to section 35(1) (sic) of the Act. - in respect of rebate on goods supplied from DTA to SEZ within India, the appeals would not lie to the Appellate Tribunal under clause (b) of proviso to Section 35(1) of the Central Excise Act.
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2016 (1) TMI 16
Exemption claim - Captive consumption - Cenvat/Modvat Credit - Held that:- No good ground to interfere with the judgment(s) and order(s) passed by the Tribunal [2007 (6) TMI 471 - CESTAT, CHENNAI]. - Decided against Revenue.
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2016 (1) TMI 15
Denial of SSI Exemption - use of brand name on the packing material - Department felt that as the printed cartons with brand name of others are not sold in the market as such these could not be treated as "branded goods" and as such the value of these clearances cannot be excluded in the aggregate value of clearances to arrive at SSI limit - whether or not the value of printed cartons and skin packagings with the brand name of others are to be added in the aggregate value to arrive at SSI exemption in terms of Notification No. 8/2002-CE - Held that:- Supreme Court in the case of Kohinoor Elastics (P.) Ltd. (2005 (8) TMI 115 - SUPREME COURT OF INDIA) overruled the full bench judgment of this Tribunal in the case of Prakash Industries v. CCE [2000 (5) TMI 59 - CEGAT, COURT NO. III, NEW DELHI. The Hon'ble Supreme Court in both the cases cited (supra) held that once the brand/trade name is used in the course of trade of the manufacturer, which is indicating a connection between the goods - manufactured by him and the person using the brand/trade name, the exemption is lost. It was held that in any case, it cannot be forgotten that the customer wants his brand/trade name affixed on the product not for his own knowledge or interest. The customer is getting the brand or trade name affixed because he wants the ultimate customer to know that there is a connection between the product and him. The reasoning of the Hon'ble Supreme Court [2005 (8) TMI 115 - SUPREME COURT OF INDIA] is squarely applicable to the branded cartons involved in the present case.
Incidentally it may be noted an amendment has been carried out in the said Notification to deny the exclusion under the category of brand name for products like printed cartons etc. w.e.f. 01/09/2008 only. Considering the above legal position and the Hon'ble Supreme Court's decisions, we find the order by the lower authorities is not sustainable and the same is set aside - Decided in favour of assessee.
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2016 (1) TMI 14
Claim of refund or suo-moto re-credit - Reversal of excess Cenvat credit wrongly - Held that:- It is a peculiar case where the appellant himself has reversed excess Cenvat credit which they want to take re-credit. For this excess reversal of Cenvat credit, only the account books/statutory records are the documents to be verified by the authorities below. This fact has not been disputed, therefore, we hold that appellant is entitled to take refund/re-credit of the excess amount Cenvat credit reversed by them. - refund claim filed by the appellant are allowed which will regularize the suo-moto Cenvat credit taken by the appellant. - Decided in favour of assessee.
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2016 (1) TMI 13
Adjustment of claim of refund with the outstanding dues - The appellant's grievance is that inasmuch as the subsequent orders confirming demands were either appealed against or there was time to file appeals - Held that:- The status of the other appeals is not known. Otherwise, I agree with the learned advocate that such refunds have to be treated separately and should not be adjusted against the pending demands. Inasmuch the matter is almost five to six years old and the orders against which the refunds were adjusted against the demands might have been set aside by the higher appellate forum, I set aside the present impugned order and remand the matter to original adjudicating authority for de novo decision after ascertaining the status of the confirmed demands.
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2016 (1) TMI 12
Clandestine manufacture and clearance of various articles of copper and copper alloys - Finished goods daily stock register (RG-1) was not complete - the officers found copper winding wire scrap lying in gunny bags as also in loose and lump condition in the factory. As the appellant could not explain the source of procurement of the said scrap, which is raw material for the appellant, the same was seized under panchnama - Held that:- The entire case of the Revenue is based upon the initial statements recorded at the time of visit of the officers. It is well settled law that such statements, though, form part of the evidence, have to be taken with a pinch of salt and require further corroboration. The Revenue cannot rest its case on the sole basis of the statements without taking into account the surrounding circumstances. As such in the absence of any reference by the said deponents, to the fact of passing of quality control test about a week ago and in the absence of any admission that the same were not entered with any malafide intention to remove them clandestinely.
Regarding source of scrap - the assessee have produced invoices of two persons showing the sale of the scrap on the previous night of the visit of the officers. No enquiries stand made by the Revenue from the said two suppliers of scrap. If the scrap has been received in the factory on the previous day, late night, it cannot be expected to be entered in the records by the next day early morning.
Confiscation of the final products and imposition of penalties upon the assessee is neither justified nor warranted - Decided in favor of assessee.
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