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Central Excise - Case Laws
Showing 21 to 40 of 277 Records
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2016 (10) TMI 1169
CENVAT credit - whether credit is admissible on welding electrodes used for repair and maintenance of capital goods? - Held that: - The issue stands covered by the decision of the Tribunal passed in the case of M/s India Cements Ltd. Vs Commissioner, CCE&ST, Hyderabad [2016 (6) TMI 1143 - CESTAT HYDERABAD], where it was held that credit on welding electrode used for repair and maintenance of capital goods is admissible - appeal allowed.
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2016 (10) TMI 1168
Levy of duty - packing of biris in aluminum foils with the aid of power - manufacture or not? - Held that: - The SCN has not brought the reason why such activity shall first amount to manufacture and then thereafter dutiable - The packing was not from bulk pack into retail pack in the present case. There was no adoption of any treatment made to render the goods marketable. Accordingly, activity of packing biris in aluminum foil shall not amount to manufacture which is only a post-manufacturing activity and shall not make it liable to higher rate of duty - appeal allowed.
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2016 (10) TMI 1167
Benefit of N/N. 21/2002-Cus., dated 1-3-2002 - demand was raised and confirmed u/s 11A of the CEA, 1944 - Held that: - Demand of duty is admittedly in respect of Customs duty and for violation of Customs provisions, the duty should have been proposed and confirmed under the provisions of Customs Act, 1962. Therefore, the demand confirmed under Section 11A of the Central Excise Act, 1944 will not sustain - appeal dismissed - decided against Revenue.
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2016 (10) TMI 1166
Rectification of mistake - the issue of inclusion of value of exports goods and value of resale of duty paid goods was not considered - Held that: - we observe that ld. Commissioner (Appeals) with proper application of mind dealt the issue very carefully and came to the conclusion that there is indeed resale of duty paid goods and exports clearances. Therefore the same is not includible in the threshold limit of ₹ 1 crore - ROM application allowed.
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2016 (10) TMI 1162
Manufacture - whether the appellant procuring duty paid Black Wire and subjecting it to process of galvanization & clear the same, does it amount to manufacture? - Held that: - prior to 1-3-2005, both plated or coated wire with zinc and un-plated wire were listed in Heading 7217 and subsequent to March 1, 2005 under the 8 digit Tariff, Black wire was listed under Heading 7217 10 10 and G.I. Wire under Heading 7217 20 10 - the process of galvanization simplicitor does not amount to manufacture and accordingly the whole SCN is misconceived, demanding Central Excise duty from the appellant - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1161
Valuation - manufacturers of Lamps covered under MRP based assessment - It appeared to Revenue that the goods were supplied to Government institutions and they were not meant for retail sale and therefore, assessment under Section 4A of the Central Excise Act, 1944 was inappropriate - Held that: - there are no allegations in the show cause notices that the consideration price received was more than the MRP declared on the packing or the abatement availed was more than allowed by notification in the Official Gazette - when all such requirements of sub-section (2) of Section 4 are fulfilled then valuation as per said sub-section (2) shall be equal to the sales price declared less the amount of abatement and there is no scope for invoking provisions of Section 4 of the Central Excise Act, 1944 for such assessment - SCN not sustainable - appeal allowed.
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2016 (10) TMI 1160
Unjust Enrichment - refund claim - whether unjust enrichment is applicable in case of refund of pre-deposit made u/s 35F of CEA, 1944? - Held that: - the Hon’ble Supreme Court in case of Sahakari Khand Udyog Mandal Ltd. [2005 (3) TMI 116 - SUPREME COURT OF INDIA] clearly held that in respect of all the refunds even not covered under Section 11B, unjust enrichment is applicable - even in case of refund of pre-deposit amount, the provisions of unjust enrichment is applicable.
The appellant shall be given sufficient opportunity of personal hearing and for submitting necessary documents to prove their case on the aspect of unjust enrichment - appeal allowed by way of refund.
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2016 (10) TMI 1159
Valuation - SKO (Superior Kerosene Oil) - includibility - reimbursements - impugned order has held that the amount reimbursed by the Oil Pool Account to the respondents and then in turn to Kochi Refineries Ltd. (KRL), the reimbursement component, cannot be added to the assessable value - whether differential amount (difference between subsidized price and total price paid for the goods namely SKO), received separately from Oil Pool Account by the respondents, M/s. IOC Ltd. and paid to the manufacturer of the subject goods, M/s. KRL, is part of the value of the goods under Section 4 of the Central Excise Act, 1944 and whether duty of Central Excise accordingly is chargeable for said differential amount or not?
Held that: - the respondents, M/s. IOCL have replaced the manufacturer, and are the assessee for the purpose of Central Excise payment. When the respondents have taken the position of an assessee in place of the manufacturer, it is not an acceptable argument on behalf of the assessee that transaction value in their case is only the subsidized price, when it is on record and it is the fact that the assessee received additional consideration (differential price) from the Oil Pool Account for the ‘same goods’, the goods in questions and they paid the same to the manufacturer, who is M/s. Kochi Refineries Ltd. (KRL) - It is again made clear that the additional consideration/differential price being received from Oil Pool Account is to be treated as price-cum-duty paid on behalf of the buyer and it is being received by the assessee, who is M/s. IOCL, who in turn reimburse the manufacturer, KRL by its payment to KRL - the duty of Central Excise is chargeable for the additional consideration (reimbursement) received and paid to the manufacturer, KRL by the assessee IOCL.
Extended period of limitation - Held that: - From the facts on record, it cannot be proved that the respondents wilfully suppressed the facts from the Department with intention to evade payment of duty of Central Excise though the Department in the show cause notice has invoked the extended period clause citing the proviso to Section 11A of the Central Excise Act, 1944. When there is no sufficient evidence on record to prove wilful suppression, misstatement, etc., with intention to evade payment of duty on the part of the respondents, the demand of the duty can be sustained only for the clearances made during the period of one year prior to the date of show cause notice - extended period cannot be invoked.
For the period of one year, quantification of liability of duty along with interest and imposition of penalty as per law is also required to be decided, when the duty of Central Excise has not been paid on the differential price which includes the duty payable on the subject goods. For this limited purpose of re-quantification of duty and interest, and for imposition of penalty in case of the duty not paid during the period of one year, the matter is remanded to the original adjudicating authority - appeal allowed by way of remand.
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2016 (10) TMI 1158
CENVAT credit - input service - sub-contract - services were rendered by other service providers appointed by the CHA - Held that: - If these invoices issued by the service provider can be correlated and matched with the consolidated invoices issued by the CHA substantive benefit of input service credit cannot be denied to the appellant - matter remanded to the original adjudicating authority for the limited purpose of checking whether there is correlation between the invoices issued by the sub-contractors/service providers appointed by the CHA and the consolidated invoices issued by the CHA to the appellant - appeal allowed by way of remand.
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2016 (10) TMI 1156
CENVAT credit - It is the grievance of the appellant that the Tribunal’s order and directions have not been implemented and the same demand have been repeated again by the impugned order, even after complete verification of facts and details having been made by the Assistant Commissioner in his verification report, which has accepted the appellant’s pleas and submissions as well as records and documents as correct, but still the respondent has chosen to confirm the entire demand again - Held that: - the entire case of the revenue confirming the impugned demand by denying Cenvat Credit is unsustainable, both on facts and in law. Nothing is brought on record by the revenue to prove that the assessee did not receive duty paid inputs and/or it did not utilise the same for manufacture of finished excisable goods cleared on payment of duty. The existence of commercial arrangement between the appellant and JMCIPL is only to carry out the commercial activities for the purpose of business of the company in the light of the need for financing control, sales, marketing and allied activities to run the business and in no way, does it disentitle the manufacturer of excisable goods i.e. ICI India Limited (presently Akzo Nobel Ltd.) to Cenvat Credit of the duty paid on inputs and capital goods.
The law is well settled that the revenue cannot pass orders arbitrarily and cannot deny the credit or raise demand merely based on assumptions and presumptions. When facts on records are verified and found to be contrary to the allegations made in the notice, the demand as per notice cannot be confirmed again.
Appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1151
Classification of goods - whether the goods that come out of the printing industry shall fall under Tariff sub-heading 4901 90 or 4821 00? - Held that: - bare perusal of the entry 4901 90 shows that the goods that come out of appellant’s place of manufacture was a printing product, which is broadly covered under the phrase “and other products of the printing industry - product came out of the printing industry cannot fall under the Tariff sub-heading 4821 00 but shall fall under sub-heading 4901 90 - appeal allowed.
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2016 (10) TMI 1143
National Calamity Contingent Duty (NCCD) - who is liable to pay NCCD-Job worker or Principal manufacturer? - Held that: - Central Excise Law being a value addition law, there was an higher amount of NCCD collected by Revenue from the hands of the principal manufacturer with the value addition of job worked goods - also, When principal duty liability was not realisable from the job worker in terms of notification benefit, realizing NCCD alone from the job worker is inconceivable since the department opted postponement of realization of excise duty till payment thereof by the principal manufacturer.
Principal manufacturer is liable to pay - appeal dismissed - decided against Revenue.
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2016 (10) TMI 1140
CENVAT credit - input service - Auction service - Insurance service - Outdoor catering service - Rent a cab service - Outward transportation factory to consumer - Held that: - all the services in question are eligible for Cenvat credit under Rule 3(1) of Cenvat Credit Rules, 2004, as held in various decisions - It is made clear that auction service involving credit of ₹ 2163/- is also eligible for Cenvat credit as this is concerned with the activities relating to business and in the light of the contents of the definition of input service given in Rule 2(l) of CCR.
Reliance placed in the case of Madras Cement Ltd. Vs. Additional Commissioner of Central Excise, Bangalore [2015 (7) TMI 1001 - KARNATAKA HIGH COURT], CCE, Bangalore Vs. Stanzen Toyotetsu India (P) Ltd. [2011 (4) TMI 201 - KARNATAKA HIGH COURT] and CCE, Nagpur Vs. Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT].
Appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1137
Valuation - items cleared to sister unit - case of the Revenue is that the value of Central Excise duty should have been done under Rule 4 and not under Rule 8 of Valuation Rules, 2000? - Held that: - in the present case, the goods were sold to independent buyers as well as cleared to sister unit.
Rule 8 of Central Excise Valuation Rules, 2000 were substituted vide N/N. 14/2013-CE (NT) : dated 22.11.2013. The scope of the new Rule vis-à-vis the old rule was explained in the Board Circular dated 25.11.2013. It was clarified that the new provision was introduced which clearly state their application irrespective of whether the whole or a part of clearances of manufactured goods are covered by the circumstances given in the said rule.
Appeal dismissed - decided against Revenue.
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2016 (10) TMI 1136
Valuation - includibility - value of chassis supplied free of cost by the telecom company - classification of goods - Benefit of N/N. 6/2006-CE dated 01/03/2006 - Held that: - the classification was not the subject matter agitated in the SCN, in effect, without getting the product properly classified, the proceeding to fix correct duty liability will be improper - Admittedly, the classification of the product requires re-examination.
The original authority is in error to hold that Mobile Telescopic Tower cannot be classified under Chapter 87. We note that the whole final product as cleared by the appellant (MTT mounted vehicle) is considered for valuation but for classification, the original authority is considering only the MTT. This is not legally tenable.
Appeal allowed by way of remand.
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2016 (10) TMI 1130
Valuation - job-work - related concern - depression to the assessable value - Held that: - The order appears to have been passed by learned Commissioner (Appeals) only on presumption without any objective analysis of the valuation of job worked goods made by the assessee for KRVP - In absence of any cogent evidence to establish object of the parties to depress the assessable value, it is not possible to agree with the finding of the learned Commissioner (Appeals), who only passed his order on suspicion particularly on the premise of commonality of the directors - decided in favor of appellant.
Even though Revenue says that both the authorities below committed error in law, nothing is demonstrated before us to show the manner how job worked goods were valued by assessee to the detriment of justice. There is also no material on record to show that investigation made any sample test of value of transactions to establish that there was depression to the value of the job worked goods.
Appeal allowed - decided in favor of appellant-assessee.
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2016 (10) TMI 1121
MODVAT/CENVAT credit - irregular availment - cross utilization of MODVAT against duty paid invoices - Held that: - The finding in the impugned order the credit of ₹ 88,182/- is purported on the basis of invalid document appears to be unfounded. There is no dispute against procurement of materials against duty paying invoice No.21538 dated 28.04.1996 which needs to be verified as a valid document.
Matter is remanded to the adjudicating authority for verification of the records and to pass order in accordance with law - appeal allowed by way of remand.
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2016 (10) TMI 1120
Validity of Ex-parte stay order - Held that: - Perusal of the records shows that they have not complied with the directions of the Tribunal regarding deposit of 50% of the duty confirmed and also 50% of the penalty imposed on the appellant. Instead of complying with the directions of the Tribunal, they have simply moved an application for setting aside the ex parte decision - In view of non-compliance of the Stay Order, all the appeals are dismissed.
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2016 (10) TMI 1091
CENVAT credit - duty paying invoices - In one of the invoice credit was taken on Xerox copy of the invoice - Serial Number of the invoices either not printed or hand written - Held that: - The allegation made by the Revenue is of procedural nature and for such procedural lapse substantial benefit of Cenvat credit cannot be denied as the duty payment under invoice, receipt of input and use thereof has not been disputed - In the appellant’s own case PEPSICO INDIA HOLDING P LTD Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI-II [2012 (7) TMI 53 - CESTAT, MUMBAI], on the similar issue this Tribunal held that as per Rule 11 of Cenvat Credit Rules, 2002 Cenvat credit can be availed on the strength of invoice which shall be serially numbered, there is no requirement in the rule that invoice should have printed serially numbered, accordingly Cenvat credit was allowed.
As regard the credit taken on Xerox copy of invoices, the issue is covered by judgment of Hon’ble Gujarat High Court in case of Steelco Gujarat Ltd. [2010 (2) TMI 307 - GUJARAT HIGH COURT], where it was held that denial of credit on this procedural irregularity would not be justified - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1090
Penalty - Rule 96ZQ(5)(ii) of the Central Excise Rules, 1944 - Held that: - The penalty levied under Rule 96ZQ(5)(ii) of the Central Excise Rules, 1944 cannot survive once the Rule itself has been struck down by the Hon’ble Supreme Court of India. It is conceded, therefore, that the Revenue’s appeal would have to be dismissed - decided against Revenue.
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