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Central Excise - Case Laws
Showing 41 to 60 of 277 Records
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2016 (1) TMI 1180
CENVAT credit - structural items treating them as capital goods - Held that: - it is seen that department has not issued any show-cause notice proposing to deny the credit taken on MS items. The appellants reversed the credit pursuant to a letter issued by Range Officer. The same was reversed under protest and thereafter they filed a refund claim. A show-cause notice was then issued proposing to reject the refund claim. It is seen that appellants did not file any reply to this show-cause notice, explaining the use of MS items. The adjudicating authority is seen to have passed the order-in-original that credit is not admissible basing on available records. In such a situation, I am of the view that it is a fit case for remand. The appellant is to be given a chance to file reply and substantiate their contention that credit has been rightly availed on the MS items - appeal allowed by way of remand.
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2016 (1) TMI 1179
CENVAT credit - MS ingots - Held that: - In the case of India Cements Ltd Vs CESTAT, Chennai [2015 (3) TMI 661 - MADRAS HIGH COURT] the Hon’ble High Court has considered the issue and held that credit is admissible on MS items used for fabrication/erection of capital goods. Applying the ratio laid in the said judgment and on appreciation of the facts I am of the view that the impugned order does not call for any interference - appeal dismissed - decided against Revenue.
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2016 (1) TMI 1167
CENVAT credit - recovery of credit availed on MS plates, Channels, Joists, Beams, Angles, HR Coils, etc. as capital goods, alongwith interest and penalty - lack of sufficient documentary evidence that the impugned items were used in fabrication of capital goods/accessories/ parts/components - Held that: - A Chartered Engineer’s Certificate though produced before both the authorities has not been considered at all. The said expert has given details regarding the manner and use of the impugned items. Further, the fact of purchase of these items and their receipt in factory is not disputed. Revenue does not have a case that such purchased items were diverted by the appellant in any manner. On such score, I am able to safely infer basing on the certificate issued by the Chartered Engineer and photographs that the impugned items were used for fabrication of capital goods/components/parts/accessories - reliance placed on the decision of the case of Rajasthan Spinning and Weaving Mills Ltd. [2010 (7) TMI 12 - SUPREME COURT OF INDIA] where on similar issue it was held that credit is admissible.
Appeal allowed - credit allowed - decided in favor of appellant.
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2016 (1) TMI 1166
Clandestine removal of goods - M.S. Angles and M.S. Channels etc., falling under Chapter 72 of the Central Excise Tariff Act, 1985 - Held that: - the submissions of the appellant regarding burning loss has not been taken into consideration. Further, no plausible or credible evidence has been brought on record to prove that the goods have been clandestinely removed. I find from the statement recorded from the Authorized Officer Sh. J.P. Agarwal that nowhere he has stated that the goods have been clandestinely removed from the factory. Since the Department has not properly investigated into the matter in arriving at the conclusion that the discrepancy has resulted in removal of goods clandestinely from the factory, I am of the view that confirmation of duty demand, confiscation of goods and imposition of penalty by the authorities below are not justified. Therefore, the impugned order is set aside and the appeal is allowed in favor of the appellant.
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2016 (1) TMI 1165
Refund claim - Period of limitation - Held that:- On perusal of the records, find that the appellant, by letter dated 3-10-2007, which is received by the department on 9-10-2007, informed that they have debited the amount of ₹ 84,434/- under protest vide PLA Entry Serial No. 47, dated 3-10-2007. Thus, it is clearly evident that the appellant paid the amount under protest. It is also noted that the appellant categorically mentioned in the PLA that the amount is debited under protest. So, the findings of the lower authorities that the demand is barred by limitation cannot be accepted. The other aspect of this case is that the appellant by letter dated 21-7-2008 filed the refund claim and on 17-2-2011 they submitted the said refund claim in form ‘R’ at the instance of officers. So, the initial claim of refund was filed within the stipulated period. - Decided in favour of assessee.
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2016 (1) TMI 1164
Clandestine removal - the decision in the case of MAN INDUSTRIES INDIA LTD. Versus COMMISSIONER OF CENTRAL EXCISE, INDORE [2013 (5) TMI 677 - CESTAT NEW DELHI] contested - Held that: - We find no reason to interfere with the impugned judgment - The appeal is accordingly dismissed.
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2016 (1) TMI 1162
Denial of common registration - manufacture of lead ingots - Whether appellant are eligible to a common Central Excise registration for their two units situated across a road? - Held that: - finished product of Unit-I of the appellant is the starting point of manufacturing in Unit-II. It cannot be said that processes of both the units-I & II of the appellant are not inter-connected especially when appellant has a common sales tax registration, files common income tax returns etc. Accordingly, appellant has a case for common Central Excise registration and adjudicating authority has not interpreted the procedure in its right spirit when some procedural accommodation is prescribed and there is no risk to the Revenue. Appeal filed by the appellant to that extent is required to be allowed - reliance placed on the decision of the case of Rajhans Pressings Pvt. Ltd. v. Commissioner of Central Excise, Delhi-IV [2011 (4) TMI 1046 - CESTAT, NEW DELHI].
Whether appellant was required to discharge duty on Lead Ingot manufactured in Unit-I when sent to its Unit-II across the road? - Held that: - once appellant’s appeal on common registration is admissible then both the units are treated as one assessee and no duty on intermediate stages are required to be paid when duty is paid on the end products - the duty paid by Unit-I of the appellant would have been eligible established as Cenvat Credit to Unit-II of the appellant.
Appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1160
Claim of refund filed under Rule 5 of Cenvat Credit Rules, 2005 consequent to supply of goods to SEZ unit - Held that:- As seen from the letter F. NO. 9/SEZ/181/2006/659, dated 10-2-2006 issued by the Development Commissioner to M/s. Oil Field Warehouse Services Pvt. Ltd. while extending all the facilities and entitlements admissible to a unit in SEZ, it clearly mentions the authorized operations as rendering services such as (i) logistics & related services, (ii) maintenance and repair of equipment and (iii) supply of personnel. Further as per Rule 18(5) of SEZ Rules, 2006, “The Units in Free Trade and Warehousing Zones or units in Free Trade and Warehousing Zone set up in other Special Economic Zone, shall be allowed to hold the goods on account of the foreign supplier for dispatches as per the owner’s instructions and shall be allowed for trading with or without labelling, packing or repacking without any processing”. Further, the appellants have brought to my notice Notification No. S.O.1846(E), dated 27-10-2006 issued by the Ministry of Commerce and Industry listing warehousing and commercial operations as authorized operations. Hence, hold that the clearances made by the respondents to M/s. Oil Field Warehouse Services Pvt. Ltd., a unit in SEZ would constitute exports and are for the authorized operations as laid down in the SEZ Act.
Commissioner (Appeals) correctly upheld the order of original authority sanctioning claim of refund filed under Rule 5 of Cenvat Credit Rules, 2005 consequent to supply of goods to SEZ unit.
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2016 (1) TMI 1154
Denial of CENVAT credit - air travel agents service - reliance placed in the decision of the case of Semco Electrical P. Ltd. [2009 (12) TMI 143 - CESTAT, MUMBAI] where it was held that the appellant was entitled to the Cenvat Credit availed on the services which were used in relation to the manufacture of final product or used in relation to the business activity and in the instant case the service used by the appellant were in relation to the business activity. Thus, the appellant were entitled to refund of service tax - Held that: - The above decision of the Tribunal applies to the facts of the case. In view of the above cited decision, the impugned order is liable to be set aside - appeal allowed - credit allowed - decided in favor of appellant.
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2016 (1) TMI 1153
Demand - Classification - Povidone Iodine IP/USP - Penalty - Period of limitation - Held that: - Chemical Examiner report is stating that the product is chemically modified polymer; appellant did not challenge the Chemical Examiner’s report - the product which is imported is classified under chapter no. 39, same product manufactured in India also merits to be classified under chapter 39 only and not under chapter 29 as claimed by appellant.
when the appellant had field classification list seeking the classification of the products in a particular chapter i.e. chapter no. 29, on the basis of earlier approved classification list, revenue authorities cannot allege suppression or mis-statement with the intention to evade duty, in as much, when an assessee has followed the earlier classification lists as were approved by the department and discharged duty, in our view, show cause notice dated 12-01-1999 is time barred for demanding differential duty for the period May, 1995 to October 1997, as there is no dispute that the appellant had filed the classification lists to the authorities.
Show cause notice dated 12.01.1999 is blatantly time barred, as during the relevant period show cause notice has to be issued within 6 month for demand of duty with the limitation period, for invoking the extended period, there has to be a positive evidence of misstatement and suppression of the facts - Appeal allowed.
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2016 (1) TMI 1152
Refund - Notification No. 6/2002 dated 6.9.2002 - Held that: - certificate from the Development Commissioner, Gulbarga, which certified that the above said pipes are used actually for delivery of water from source to the plant and from there to the storage facility - Commissioner (Appeals) in so far as it claims that the certificate does not specify where the pipes are used, are incorrect and therefore, on merits the appellants are entitled to the benefit of Notification - A copy of the letter has also been provided where it is seen that the duty amount has not been paid by Maloo Construction to the appellant - Appeal allowed.
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2016 (1) TMI 1151
Transitional provision - Cenvat credit - Demand - Rule 11(1) of the Cenvat Credit Rules, 2004 - Notification 23/2004-CE - Penalty - Held that: - the service tax credit of ₹ 32,820/- which was lying unutilized in their cenvat account, as per Rule 11(1) of the Cenvat Credit Rules, 2004 as also Notification No.23/2004-CE, they are allowed to utilize the same and accordingly the appellant has utilized the same in accordance with these rules and there is no illegality in the availment of cenvat credit lying unutilized in their account before 10.9.2004 - Appeal allowed.
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2016 (1) TMI 1150
Appeal monetary limit - Held that: - In terms of Government Litigation Policy Vide F. No. 390/MISC/163/2010/JC dated 17.08.2011 Revenue is not supposed to file appeal against order of the Commissioner (Appeals) if amount involved is less than ₹ 5 Lakhs - the present appeal involving amount ₹ 1,78,445/-, which is less than threshold limit of ₹ 5 lakhs - Appeal dismissed.
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2016 (1) TMI 1149
Maintainability of appeal - monetary limit for filing appeal - as per Government Litigation Policy Vide F. No. 390/MISC/163/2010/JC dated 17.08.2011 Revenue is not supposed to file appeal against order of the Commissioner (Appeals) if amount involved is less than ₹ 5 Lakhs - whether the monetory limit prescribed under circular shall also be applicable in the appeal which is filed prior to issuance of aforesaid litigation of policy?
Held that: - The Hon’ble High Court of Karnataka judgment in the case of Commissioner of C.Ex. Bangalore-III V/s Presscom Products [2011 (3) TMI 726 - KARNATAKA HIGH COURT] and Hon’ble High Court Gujarat judgments- Commissioner of C.Ex. & Cus., Surat-I V/s Shreenath Fabrics [2012 (8) TMI 865 - GUJARAT HIGH COURT] and Commissioner of C.Ex. & Cus., Vadodara-I V/s Pharmanza Herbal Pvt. Ltd. [2014 (9) TMI 330 - GUJARAT HIGH COURT] has held that the monitory limit prescribed under circular shall also be applicable in the appeal which is filed prior to issuance of aforesaid litigation of policy - the present appeal involving amount ₹ 51,529/-, which is less than threshold limit of ₹ 5 lakhs not maintainable - appeal dismissed - decided against Revenue.
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2016 (1) TMI 1148
Remission of duty - Reversal of Cenvat credit - loss by storm - Registration surrendered online - Held that: - the revenue have not disputed the event of storm on 17/4/11. Secondly, the loss by storm have been surveyed by National Insurance Company through their surveyors and thus the details of loss have been verified and are unavailable on record - the remission claim under Rule 21 cannot be rejected only on the ground that the appellant have approached the revenue after much delay of about 20 months
The revenue had some information about disturbance by storm in the appellant's unit, resulting into disruption of production et cetera - the revenue had some information about disturbance by storm in the appellant's unit, resulting into disruption of production et cetera - Appeal allowed by way of remand.
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2016 (1) TMI 1145
Maintainability - Whether the writ petition is maintainable - Offices of the writ petitioner is situated in Orissa and major part of the cause of action arose outside the jurisdiction of the Calcutta High Court - Apex dismissed the petition against the order passed in the case of Commissioner of Central Excise, Customs & Service Tax, Bhubaneshwar-I Versus M/s. Vedanta Aluminium Limited & Ors. [2016 (4) TMI 932 - CALCUTTA HIGH COURT] - petition dismissed.
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2016 (1) TMI 1142
Denial of CENVAT credit - MS Round, MS Pipe/Plate/Beam/Channel falling under Chapter 72/73 - SSI exemption availed - whether denial of CENVAT credit justified on the ground that these are not capital goods and credit as inputs for them is not available as the appellants are availing SSI exemption? - Held that: - The admitted facts of the case are that the MS Rounds and other MS products on which credit was availed by the appellant were used in the manufacture/fabrication of moulds by/on behalf of the appellant. The said moulds are admittedly used by the appellant in their manufacturing process. Given this factual position and applying the “user test” in terms of Hon’ble Supreme Court’s decision in CCE, Jaipur v. Rajasthan Spinning & Weaving Mills Ltd. [2010 (7) TMI 12 - SUPREME COURT OF INDIA], the appellants are eligible for Cenvat credit on these items - denial of credit not justified - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1141
Demand of interest for leviability of duty for full period - availing of abatement by its own - manufacture of tobacco - Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010 - operation discontinued and again stared after some time - whether demand of interest valid on the ground that the appellants availed abatement on their own? Had the appellants followed the proper procedure, the full amount as confirmed in the original order would have been paid and later, abatement would have been granted as per the actual dates of operation - Held that: - The reason given for confirming the interest is that the due date for payment of duty in terms of the above mentioned Rules is 5th of same month. The same is stipulated in Rule 9. The 3rd proviso to Rule 9 gives an exception that in case of increase in the number of operating machines in the factory during the month on account of addition or installation of packing machines, the differential duty amount, if any, shall be paid by the 5th day of the following month.
During the period in which the due date falls, there is no manufacturing operation by the appellant. Hence, it follows that no duty could be determined and paid by them by 5th of the same month. The machines were unsealed and allowed for operation much later and such situation will be covered by the 3rd proviso of Rule 9 - decision in the case of Trimurti Fragrance Pvt. Ltd. Versus Commissioner of Central Excise, Delhi-II [2016 (2) TMI 718 - CESTAT NEW DELHI] relied upon.
Demand of interest fails - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1138
Denial of benefit of exemption Notification No. 64/95-C.E., dated 16-3-1995 against its Sl. No. 21 - goods supplied for use in construction of warships of Indian Navy - certificate from the Competent Authority of Indian Navy - the decision in the case of Leader Engineering Works v. CCEX [2006 (2) TMI 193 - SUPREME COURT OF INDIA] referred - Held that: - Hon’ble Apex Court in the case of Leader Engineering Works was considering the goods which were supplied as stores for consumption on board of ship and they were supplied to ship builders and the entry considered was against Sl. No. 3 of the subject notification. Therefore, the facts in the case of Leader Engineering Works are definitely different than the facts on record of these appeals and the case not applicable.
Circuit breakers and other electrical goods were distinctly supplied for use in construction of warship of Indian Navy only. In this regard, the appellant has got the certificate from the Competent Authority namely Rear Admiral of Indian Navy which is the second condition of the Notification against Sl. No. 21. In this Notification, it is nowhere mentioned that goods were to be directly supplied to Indian Navy. When the goods are being supplied to MDL which was using them for construction of warships of Indian Navy, it is very clear that conditions of the Notification against Sl. No. 21 have been complied with and the subject goods are entitled to the benefit of subject notification namely 64/95-C.E., dated 16-3-1995 - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1135
Invokation of extended period of limitation - Demand and imposition of penalty - differential duty - inclusion of element of 'bonus and gratuity' in the cost of the product -appellant supplying their goods to sister concern unit on the valuation arrived at through Cost Construction Method on the basis of Cost Accountant’s Certificate - Held that:- it is found that the appellant have been filing their price declaration in form annexure II(b) alongwith necessary certificate of costing for the product declared in their declaration. They have categorically stated method of costing. They also declared that at the end of the year, after finalization of the cost, differential duty shall be paid. With these facts whether certain element, which were escaped to be included in the cost or otherwise could have been detected by the department on the basis of declaration and costing certificate. Moreover, the allegation of non inclusion of certain element in the cost is not based on the any evidence or documents. It is also observed in the show cause notice that there is no specific allegation of suppression of facts or mis-declaration for invoking extended period under proviso to Section 11A. Therefore demand for extended period is not sustainable. Since duty demand itself is not sustainable, penalty is also not imposable. In absence of suppression of facts on the part of the appellant impugned order is set aside. Duty for the normal period, paid by the appellant alognwith interest is maintained. - Decided in favour of appellant
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