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Central Excise - Case Laws
Showing 61 to 80 of 277 Records
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2016 (1) TMI 1131
Valuation - yarn falling under Heading Nos. 5203, 5204, 5504 and 5506 of the Central Excise Tariff Act, 1985 - captive consumption - comparable value - assessable value in terms of Rule 6(b)(1) of the Central Excise (Valuation) Rules - whether the yarn to be valued at comparable value or the assessable value after claiming deductions? - Held that: - the decision in the case of assessee's own case [2015 (3) TMI 1044 - SUPREME COURT] apply where it was held that the appellant shall be entitle to adjust the cost which is incurred and mentioned in process (v) and (vi) of the sales in selling cost. Since this benefit is wrongly denied to the appellant by all the authorities below, the case remanded back to the adjudicating authority
Matter on remand to the adjudicating authority for passing a denovo adjudication order within a period of 3 months after granting opportunity of personal hearing - permission granted to submit additional information to form basis for recalculation of the duty - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1111
Withholding of refund as allowed by the Central Excise (Appeals) - appellant submitted that no Revision Application or any other Petition by the revenue - Revenue submitted that the Revision Petition was sent within time to the address given in the preamble of the order passed by the Commissioner (Appeals) and, therefore, the contention that the 2nd respondent did not file any Revision before the 1st respondent is false and due to pendency of the Revision only the amount could not be paid and along with the Revision the Miscellaneous Application filed for early and out of turn hearing are pending, therefore, non payment of the amount is not due to any other reason and finally prayed to dismiss the Writ Petition. - The problem arouse due to change of address of revision authority
Held that:- No doubt, retention of huge amount would cause financial loss to the petitioners and at the same it will affect the Revenue of the Government. In such case, the Court has to strike a balance between the rights of both the parties and pass appropriate order by exercising jurisdiction under Article 226 of the Constitution of India.
To avoid loss to any one of the parties to this Writ Petition, we find that it is a fit case to direct the 1st respondent to dispose of the Appeal pending before them, as expeditiously as possible, in any event not later than two months from the date of receipt of a copy of this order, by exercising an equitable jurisdiction conferred on this Court under Article 226 of the Constitution.
Writ Petition disposed of.
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2016 (1) TMI 1099
Eligibility of Cenvat credit on outdoor catering - Held that:- It is not deniable that providing of the canteen service to the factory workers is a statutory obligation under section 46 of the Factories Act, 1948. Once the labour legislation as welfare measure provides such facility which is having intimate connection with the manufacture, such an object cannot be over ridded by fiscal statute. Therefore, appeal is allowed.
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2016 (1) TMI 1061
Manufacture and clandestine clearance of goods - MS rounds, bars etc. falling under chapter 7214.90 of CETA - hole issue of manufacture and clandestine removal of excisable goods appears to have emanated from the search of bill traders/agents premises - higher consumption of electricity - Held that:- Revenue failed to prove its case - No evidence has been established by Revenue to prove the clandestine manufacture and removal.
Therefore merely on the weighment slips from the weighbridge owner and statements and private worksheets of the Bill traders, it cannot be inferred that quantity shown in the weighment slips are actually received by the appellants used in the manufacture of goods and clandestinely as there is no evidence of any records brought out on receipt of the raw materials inside the factory or any evidence of clearance of finished goods from the factory or any documentary proof of receipt of the finished goods by the buyer having received the goods without cover of invoices or any payment particulars of sale and receipt of goods. No evidence advanced by Revenue to connect these weighment slips with either supplier / buyer or to the assessees or to the transporter or to sale proceeds etc. Therefore the burden of proof is on the Revenue to discharge onus and as already discussed in the preceeding paragraphs the revenue has not proved in this case.
Further, mere electricity consumption cannot be the only basis for determining duty liability.
The demand of central excise duty proposed in then SCN's on clandestine manufacturer and removal has been made only based on assumption and theoretical calculation without any corroborative evidence. - Central Excise duty demanded in the 3 SCNs on excisable goods clandestinely manufactured and cleared by the respondents is not sustainable. - Decided in favor of assessee.
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2016 (1) TMI 1060
100% EOU - diversion of duty free material - Notification No.52/2003-Cus, dated 31.03.2003 - Whether non-accountal in statutory records but accountal in gate register and Form IV, etc. could be considered as due compliance for accountal of duty free receipts of goods and not liable to imposition of redemption fine and penalty - third member decision.
Held that:- As the entire Show Cause Notice is predicated upon the appellant having violated the said Rule 7(b), jurisprudentially Show Cause Notice is not sustainable and the lower authorities have travelled somewhat beyond the Show Cause Notice by involving condition 3(b) of Notification No.52/2003-Cus, which is not permitted for them to do.
As has been brought out, the goods had arrived just a few days before the visit of the central excise officers, and re-warehousing was not complete and therefore the appellant's contention that the goods were not entered in the re-warehousing register as re-warehousing had not been completed is not unreasonable. However, it comes out that the goods were not only entered in the gate register as noted by the ld. Member (Technical) but also entered in the raw-material register.
In addition, the goods were actually duly found in the factory and it is not a case that there was any shortage noticed. It is also to be noted that these goods are imported only after a certificate authorising their import is given by a central excise officer and thus, the central excise officers are in the know of the duty free imports authorised by them for the 100% EOU.
Impugned order is set aside and the appeal is allowed with consequential relief to the appellant. - Decided in favor of assessee.
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2016 (1) TMI 1059
Cenvat Credit - eligible inputs - rails and other track materials, namely, sleepers, paints and crossings etc. - Revenue contended that the goods in question do not merit inclusion in the category of ‘inputs’ as the same do not go into the mainstream of the process of manufacture either directly or indirectly, nor included in the list of goods mentioned in the definition of Rule 2(g) of CENVAT Credit Rules, 2002.
Held that:- Since the department has accepted the admissibility of CENVAT Credit on rails and railway track materials involving the same assesse i.e. M/s SAIL, for subsequent period under the CCR,2004 and identical issue is also involved in M/s Tata Steel's case, therefore, adopting the principle of certainty & consistency in tax matters, in our view, the Appellants are eligible to credit on rails and railway track materials. Consequently, the discussion on the applicability of the said judgment to the present CENVAT Credit Rules, 2004 and other contentions raised in these Appeals would become more of academic in nature rather than resolving the dispute, hence not resorted to. - Credit allowed - Decided in favor of assessee.
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2016 (1) TMI 1058
Dutiability and classification of Polyester Sewing Thread - Held that:- The Polyester Sewing Thread is distinctly known in the market and the yarn purchased by the appellant apparently cannot be marketed or used as the Sewing Thread. The Original Authority held that “the only processes adopted by the assessee are dyeing and rewinding of the yarn on cones. Obviously this is not manufactured”. How appellants came to the conclusion that the process does not amount to manufacture is not clear.
The learned Commissioner (Appeals) while setting aside the order-in-original has categorically observed that a commercially different commodity that is Sewing Thread came into existence by applying the process of dyeing and rewinding of multifold or cabled yarn. We find that there is no material now before us to arrive at a different conclusion. We also find that the issue of dutiability of Sewing Thread was examined and clarified by the Board vide Circular No. 168/2/96-CX., dated 23-1-1996. The Board clarified that the argument that there was a definition of Sewing Thread for all the headings except Heading No. 55.04 for the tariff is not really relevant so far as the dutiability of Sewing Thread is concerned. The dutiability does not arise by virtue of the fact the definition of Sewing Thread was provided for in certain headings, but by virtue of the fact that the process of making Sewing Thread out of single thread/yarn is basically a process of manufacture under Section 2(f). In view of the above discussion, we find that there is no ground to interfere with the findings of the learned Commissioner (Appeals) and accordingly we dismiss the appeal. - Decided against the assessee.
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2016 (1) TMI 1057
Refund of unutilised Cenvat credit - refund claim denied on the ground that in terms of Rule 11(2) of Cenvat Credit Rules, 2004, unutilised credit would lapse on closure of the unit - Held that:- Admittedly, in the present case the appellant has closed its unit and filed ER return claiming refund of unutilised Cenvat credit which he is entitled to as per Rule 5 of the Cenvat Credit Rules, 2004. The rejection of refund claim by the ld. Commissioner is on account of misinterpretation of the rules governing the refund. The ER return submitted by the appellant along with refund application is sufficient to grant refund to the appellant. The judgments cited at the bar by the ld. counsel for the appellant are fully applicable in the facts and circumstances of this case.
In view of the facts and circumstances enumerated, set aside the impugned order and direct the respondent to grant refund within a period of two months from the receipt of the certified copy of the order. - Decided in favour of assessee.
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2016 (1) TMI 1056
Rectification of mistake - Eligibility for Cenvat Credit on insurance services and taxi services provided for staff and employees and also services of repair and maintenance of vehicle - Held that:- There was no dispute whether the services were availed for staff and employees. Needless to say that no evidence has to be adduced for facts which are not in dispute. It apparently appears that the Tribunal has erred in recording a finding of fact. Rule 2 (l) does not say that the services availed in order to be eligible for credit should be services under statutory obligation.
In this regard cannot agree with the submissions of the learned DR that the appellant in effect is seeking review of the Final Order and that there is no error apparent on the face of record. The error pointed out by the appellant, strikes on mere looking of the records and the Final Order. It does not require any long drawn process of arguments. Whether the mistake is apparent or not depends on the facts and circumstances of each case. The error pointed out by the appellants is manifest on the face of records and for the same, the decision relied by the DR is not applicable to the facts herein. The Tribunal being the ultimate fact finding forum, a patent error on finding of fact which has formed the basis of the decision in the appeal does call for rectification. It is also pointed out that the issue of limitation though raised was not considered at all.The ROM application is allowed accordingly.
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2016 (1) TMI 1055
Gas filing activity - Demand on duty - whether the activity undertaken by the appellant amounts to manufacture? - marketability - Held that:- As seen that in the case of Shivam Industries (2012 (12) TMI 341 - CESTAT, NEW DELHI) this Tribunal has observed that the adoption of any other treatment rendered the product marketable to the consumer. Admittedly, in this case the consumers are Vanaspati manufacturers who are industrial users or manufacturers. Therefore, the same will not term as consumer.
In fact, they are the processors of the goods. In the case in hand, as the buyer are not consumer as per Chapter Note 9 of Chapter 28 of CETA, 1985. Further, we also hold that the gas is already marketable in its original form and the activity undertaken by the appellant does not render the gas marketable which is already marketable. Therefore, we hold that the activity undertaken by the appellant does not amount to manufacture. Consequently, the appellant are not liable to pay duty. - Decided in favour of assessee.
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2016 (1) TMI 1054
Recovery of transport charges separately by way of debit notes - whether amount to declaring transport charges separately or not? - Held that:- In view of the admitted fact that the appellant assessee have recovered transport charges by separate transport bills/debit notes, which is of even date as the date of invoice and all other details given in the debit notes like, place of delivery, name of the party, name of the goods, quantity etc. can be correlated to the excise invoice, we hold that the same is to be read together with Excise invoice and in the facts, we hold that the assessee have separately displayed the transport charges. In this view of the matter, learned Commissioner (Appeals) has erred in holding that the transport charges are includible in the transaction value. We further hold that the includability of transport charges arise only in the case when transport charges are included in the sale of the goods. Accordingly, we allow the appeal with consequential benefit. The impugned order is set aside.
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2016 (1) TMI 1041
Modvat credit was taken in the manufacture of household goods which were cleared under Notification 4/97 - appeal against the decision of tribunal in [2004 (6) TMI 566 - CESTAT, MUMBAI] - None appears for the appellant(s). - The civil appeals are dismissed for non-prosecution.
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2016 (1) TMI 1040
Manufacture - whether the tarpaulin made-ups which are prepared after cutting and stitching the tarpaulin fabric and fixing the eye-lets would involve the process of manufacture - Revenue appeal against the decision of tribunal in [2005 (1) TMI 8 - CESTAT, CHENNAI] - appeals are squarely covered by the Judgment of this Court in Commissioner of C. Ex., Chennai-II v. Tarpaulin International reported in [2010 (8) TMI 2 - SUPREME COURT] - These appeals are, accordingly, dismissed.
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2016 (1) TMI 1039
SSI Exemption - Brand name - Revenue appeal against the decision of tribunal in [2005 (7) TMI 405 - CESTAT, MUMBAI] - As the tax effect is negligible, we are not inclined to entertain this appeal. - Appeal dismissed
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2016 (1) TMI 1038
Medicament - Cenvat/Modvat - Word and Phrases - appeal against the decision of tribunal in [2005 (8) TMI 507 - CESTAT, MUMBAI] - Nobody appears on behalf of the appellant. Same was the position on the earlier dates as well. - The appeal stands dismissed for non-prosecution.
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2016 (1) TMI 1037
Clubbing of clearances for the purpose of SSI Exemption - Company controlled by family members - Dummy units - appeal against the decision of tribunal in [2013 (11) TMI 1019 - CESTAT NEW DELHI] - we do not see any good ground to interfere with the judgment(s) and order(s) passed by the Customs, Excise and Service Tax Appellate Tribunal. Accordingly, the Civil Appeals are dismissed.
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2016 (1) TMI 1036
Manufacture - process of sterilization of medical equipments - change in the character of the final product - Revenue appeal against the decision of tribunal in [2004 (7) TMI 228 - CESTAT, NEW DELHI] - matter is squarely covered by a recent judgment of this Court in ‘M/s. Servo-Med Industries Pvt. Ltd. v. Commissioner of Central Excise, Mumbai’ [2015 (5) TMI 292 - SUPREME COURT] - Appeal dismissed.
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2016 (1) TMI 1035
Classification of parboiling and drying plant and machinery - appeal against the decision of tribunal in [2005 (7) TMI 649 - CESTAT MUMBAI] - tax effect in the present case is negligible. Accordingly, the civil appeal is dismissed on this ground alone.
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2016 (1) TMI 1012
Benefit of Exemption Notf No. 182/87-CE dt 10/7/87 denied - manufacturing of Coal Tubs in the mines. - demand confirmed - Held that:- Appellant is a public sector undertaking and it is not ethical on their part now to agitate the time bar aspect afresh after conceding the same before us in the earlier proceedings. Reliance by the appellant on the Apex Court’s case law in the case of Union of India Vs Madhumilan syntax Ltd (2006 (2) TMI 170 - SUPREME COURT OF INDIA ) is misplaced because the order passed by the Apex court was as a result of a writ petition against an order of the lower authorities without affording any opportunity to the assessee. In the present case before us the concession was given after the adjudicating authority decided the case after following the principles of natural justice and the case was argued at length before this bench before remand order dt 1/5/2000 was passed. Therefore, the ratio laid by Hon’ble Apex Court is not applicable to the present factual matrix when appellant is a Public Sector undertaking and principles of natural justice have not been violated earlier. In view of the above observations appeal filed by the appellant on the grounds of limitations again, when not even agitated before the Adjudicating authority in remand proceedings, can not be entertained & is required to be dismissed.
So for as imposition of penalty upon the appellant is concerned in this case it is a case of imposing penalty under Rule- 9 (2), read with Rule-173 Q, of the erstwhile Central Excise Rules 1944. Appellant being a large company did not bother to check whether duty liability got attracted during the relevant period. It is now a well understood legal proposition that ignorance of law is no excuse. However, looking to the facts on record and appellant being a Public Sector Undertaking we are of the opinion that penalty of ₹ 10 lakh, imposed upon the appellant, is excessive we accordingly reduce this penalty from ₹ 10, lakh to ₹ 10,000/- (Ten thousand only)
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2016 (1) TMI 1011
Cenvat credit lying unutilized in stock on 1.3.2003 denied - appellant has availed credit after a gap of one year - Held that:- As per Rule 3(1) of Cenvat Credit Rules, 2002 the appellant is entitled to Cenvat credit on the inputs in question which were either available in stock or in process or were contained in the final product lying in stock as on 1-3-2003, Thus, viewing the problem from any angle the appellant is entitled to claim Cenvat credit under Rule 3 of Cenvat Credit Rules, 2002. Accordingly, the issue is decided in favour of the Appellant.
Reasonable time for availing the credit - Held that:- There is no time limit prescribed under Cenvat Credit Rules, 2002 during the impugned period, therefore the appellant is entitled to take credit. Decided in favour of the appellants.
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