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Central Excise - Case Laws
Showing 261 to 277 of 277 Records
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2016 (10) TMI 66
Reversal of cenvat credit - Rule 6(3) of Cenvat Credit Rules, 2004 - electricity generated out of Bagasse - consideration received by appellant for supply of electricity to the State Grid of Electricity - Held that:- the issue has been finally decided by the Hon'ble Supreme Court in the case of Union of India Vs. DSCL Sugar Ltd. [2015 (10) TMI 566 - SUPREME COURT] wherein the Hon'ble Supreme Court of India have held that Bagasse is only an agricultural waste and residue and there cannot be any Excise duty on Bagasse. The Hon'ble Supreme Court has further ruled that Cenvat credit in respect of electricity was denied only on the premises that Bagasse attracts Excise duty and consequently Rule 6 of Cenvat Credit is applicable and the Hon'ble Supreme Court has found such action to be erroneous. Therefore, by following the same the impugned orders are set aside. - Decided in favour of appellant
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2016 (10) TMI 65
Cenvat demand alongwith interest - Cenvat credit irregularly availed on Ethanol from April, 2011 to March, 2012 - Held that:- the issue is now fully covered in favour of the appellants. It is also noted that even in the case of Asian Colour Coated Ispat Ltd V/s CCE Delhi [2014 (9) TMI 974 - CESTAT NEW DELHI], where originally there was difference of opinion between two members of the Tribunal, as per majority decision it was held that CENVAT Credit cannot be denied to an assessee on the ground that manufacturer of final product was not required to pay duty by utilising the credit, as the activity at his end did not amount to manufacture. The said decision was later followed in Aurobindo Pharma Ltd V/s Commissioner of CE, Cus and ST Hyderabad-I [2015 (12) TMI 1399 - CESTAT BANGALORE]. Therefore, by relying on the Tribunal judgment in the case of Neuland Laboratories Ltd. Vs. CCE Hyderabad-I [2013 (11) TMI 1339 - CESTAT BANGALORE] which was appealed by Department before High Court and Hon'ble A.P. High Court had dismissed the same reported in [2015 (10) TMI 1036 - ANDHRA PRADESH HIGH COURT] and the same has attained finality upto Hon'ble Supreme court, it is seen that Commissioner (Appeals), in the appellant's own case, for different period July 2006 to May 2011, has allowed the appeals on identical issue. - Decided in favour of appellant
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2016 (10) TMI 64
Job-work - Demand alongwith interest and penalty - differential duty - revision of assessable value, in spite of increase in cost of raw materials - Held that:- it is seen that in the impugned order it has been held that the transactions between appellant and buyer is on principal to principal basis. The appellants contention that they are selling the paints on principal to principal basis and sale prices are arrived at after taking into account various cost of production for manufacturing the product was held as correct. The issue has been analysed by the Tribunal in their own case reported in [2010 (9) TMI 315 - CESTAT, BANGALORE] where it was categorically held that the conclusion of lower authority that the relationship between appellant and Sigma is that of job worker and principal manufacturer is incorrect. Therefore, by following the same, we hold that the demand is not sustainable. - Decided in favour of appellnat
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2016 (10) TMI 39
Classification - printed Sheets of paper/paper board - whether to be classified under CETH 4901.90/4911 99 90 as per respondent or under CETH 4819 by the Revenue - Held that:- the representative samples have been examined by the Commissioner (Appeals). He recorded that the sample sheets having printed logo of the contracting customers, are not perferated, groomed or cut to shape and size and therefore it could be said that this sheet to be used as printed cartons has to pass through more processes and this point has not been disputed by the Department. Therefore, we find no valid reason to interfere with the said order. - Decided against the Revenue
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2016 (10) TMI 38
Area based exemption - refund of duty paid - inclusion of freight from the factory gate to the place of delivery for payment of duty - contracts for goods are FOR destination - appellant is selling the goods at the factory gate but showing the sale as FOR destination and pay more duty, by including freight from the factory gate to the place of delivery, to get more refund under Notification No.32/99-CE - Held that:- the freight is included in the agreed upon prices but actual freight incurred is also known to the appellant and the buyer. That is why some of the buyers have a specific clause in purchase order that adjustment on account of freight charged and actually incurred has to be allowed by the appellant. If sale is FOR destination based then where is the requirement for such an adjustments/compensation.
In certain cases insurance of goods is borne by the buyers. It has also not been brought on record by the appellant as to where sales tax is paid. The onus is on the appellant to establish the point of sale with documentary evidences to stake claim for exemption and refund under Notification No.32/99-CE. Inspite of the specific directions from the bench appellant has not been able to bring on record that ownership of the goods, till their delivery at the doorsteps of the buyers, lies with them and that insurance of goods in transit is borne by the appellant. Hence, the appellant is not able to establish that the sales/clearances effected by them are on FOR destination basis. - Decided against the appellant
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2016 (10) TMI 37
100% EOU - Refund claim - Rule 5 of Cenvat Credit Rules, 2004 - export of goods under bond - goods viz., Photovoltaic Solar modules, panels and cells manufactured were exempted under Notification No. 06/2006-CE dated 01-03-2006 as amended by Notification No. 12/2012-CE dated 17-03-2012 - Held that:- in view of the finding by the Original Authority that at the time of clearance of the goods in domestic tariff area duty foregone on the inputs equal in amount to that leviable on inputs used in the manufacture of such goods cleared in DTA is payable at the time of clearance of said goods. Therefore it cannot be held that the goods manufactured by the appellants are exempted when they are cleared in domestic tariff area. Therefore, we hold that they were entitled to avail the Cenvat credit and since the Cenvat credit is also not recovered under Rule 14 of Cenvat Credit Rules and is available in balance in the books of accounts the same is admissible to be refunded under Rule 5 of Cenvat Credit Rules, 2004. - Decided in favour of appellant
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2016 (10) TMI 36
Classification - parts/components of crushing machinery as claimed by appellant or parts of bridge scrapper as asserted by revenue - whether to be classified under CTH 8474.00 as per appellant or under CTH 8431/8483 as per revenue - appellant contended that it is for Department to establish a particular classification and they are guided by the advice of the buyer to classify these products under a particular CTH - Held that:- Heading 8431 deals with parts suitable for use solely or principally with the machinery or Heading No.84.25 to 84.30. Heading 84.29 specifically includes “scrapers" and Heading 84.28 specifically includes "conveyers". We have examined the description of the products, which is as per the appellant's own documents. The description specifically mentions like rollers table for bridge scrapper, gangway platform and ladders for bridge scrapper, rake car for bridge, travel carriage for bridge scrapper, parts of bridge scraper. When the products are described in such explicit terms, we are not able to appreciate the claim of the appellant that these impugned goods should not be categorized as parts of such machinery. The appellant's claim based on their buyer's advice is not supported by any material evidence. Based on the description of the products, we have no hesitation to hold that the lower authorities are correct in classifying the same under the respective headings. - Decided against the appellant
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2016 (10) TMI 35
Classification - Link Cartridge Metallic Belt 0 whether to be classified under Chapter Heading 73.20 as per Commissioner (A) or under 93.06 as per Revenue - Held that:- the impugned goods are used as packing material and not as part of the ammunition, and the Section Note and HSN Notes under Chapter 73, and when the subject product viz., Link Cartridge Metallic Belt is still being classified under Chapter Heading 73.02 as per the information in Addl. Commissioner LTU's letter dated 18.5.2016. Revenue s stand does not seem to be justified. Therefore, we do not feel convinced to interfere with the impugned order which decides the classification as Chapter 73.20. - Decided against the Revenue
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2016 (10) TMI 34
100% EOU - Cenvat credit - High Speed Diesel - appellants vide Circular No. 799/32/2004 CX dated 23.09.2004 procured HSD on payment of duty and availed CENVAT Credit - appellant argued that facility of Cenvat Credit was extended to EOUs w.e.f. 06.09.2004 vide Notificaiton No. 18/2004-CE(NT) dated 06.09.2004 which amended Rule 17 of the Central Excise Rules, 2002 to enable EOUs to pay duty on clearances made to DTA by utilizing Cenvat Credit. Also Notification No. 22/2003 dated 31.03.2003 provided that specified goods when brought into an EOU from the DTA in connection with manufacture of articles, shall be exempt from the whole of the duty of excise leviable thereon.
Held that:- it is found that the definition of an input given in Rule 2(k) of CENVAT Credit Rules, 2004 cannot restrict the entitlement, when they are taking CENVAT credit in terms of Notification No.22/2003 dated 31.3.2003. More so, when the decisions of the Tribunal viz., Hindustan Unilever Ltd. vs. CCE, Bhavnagar [2009 (7) TMI 605 - CESTAT, AHMEDABAD] and CCE vs. Jagmini Micro Knit Pvt. Ltd. [2008 (11) TMI 169 - CESTAT, NEW DELHI] make it clear that appellants as an EOU can claim CENVAT credit for the duty paid on HSD oil used as fuel and when they are eligible to avail the benefit of the said Notification. Therefore, the Revenue's contention that in terms of definition of input given in Rule 2(k) of CENVAT Credit Rules, 2004 the appellants are not entitled to claim CENVAT credit, cannot be accepted, when the Notification No.22/2003 dated 31.3.2003 makes an EOU entitled to claim CENVAT credit on the procurement of HSD used as fuel. - Decided in favour of appellant
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2016 (10) TMI 33
Demand and imposition of penalty - contravention of the various rules with intention of evading Excise duty - manufacture of ducts classifiable under sub-heading No. 7304.10 of the Central Excise Tariff Act, 1985 - Held that:- in view of the decision of the Hon'ble Supreme Court in the appellant's own case reported in [2006 (4) TMI 526 - SUPREME COURT], we are of the considered opinion that the issue is squarely covered in favour of the appellants. Therefore, we hold that the impugned orders are not sustainable in law and the same are set aside. When the demands are not sustainable and the same are set aside, the penalty imposed on Shri V. Seshadri, Chief Executive Officer of the appellant's firm is also set aside. - Appeal disposed of
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2016 (10) TMI 32
Reversal of Cenvat credit - Whether the appellant is liable to reverse the proportionate CENVAT Credit taken on service tax paid in respect of GTA service utilized for transportation of sugar cane on the ground that a portion of GTA service involved is attributable to sugar cane used for manufacture of bagasse which is in turn is used for generation of electricity - Held that:- the issue involved is no more res integra in terms of the decision of Hon'ble Allahabad High Court in the case of Balrampur Chini Mills Ltd Vs UOI [2013 (1) TMI 525 - ALLAHABAD HIGH COURT] wherein the Board Circular No. 904/24/2009-CX dated 28/10/2009 requiring reversal of credit or payment of amount in terms of Rule 6 stands quashed. Therefore, by following the same, the impugned order is set aside. - Decided in favour of appellant
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2016 (10) TMI 31
Recovery of Cenvat credit - Cenvat Credit availed on various input services - input service invoices were in the name of their Head Office, at Mumbai, which was not registered as an Input Service distributor - Held that:- except on the ground that relevant input service invoices were not in the name of their Vapi but in the name of Head Office, and the Head Office was not registered as an Input Service Distributor, the Cenvat Credit availed on such invoices even though the services were utilised in or in relation to the manufacture of excisable goods at their Vapi unit, had been denied. I find that the issue is covered by the decision of Hon’ble Gujarat High Court in the case of CCE Vs Dashion Ltd [2016 (2) TMI 183 - GUJARAT HIGH COURT]. Therefore, in view of the same, the impugned order is set aside. - Decided in favour of appellant
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2016 (10) TMI 30
SSI Exemption - Whether or not appellant can change it s option under clause 2 (i) of Notification No. 9/03-CE dated 1/3/2003 in the same financial year - appellant initially filed declaration in April, 2004 where exemption under Notification No. 91/03-CE was availed and Central Excise duty was paid @ 9.6% and subsequently appellant vide letter dated 1/9/2004 intimated the Department that they will be paying full rate of duty @16% - Held that:- in view of the provisions contained in clause 2(i) of exemption under Notification No. 9/03-CE, option exercised once cannot be changed by the appellant in the same financial year. This issue has been decided in the case of Canara Poly Pack Ltd. Vs. Commr. of C.Ex., Bangalore-III [2007 (9) TMI 286 - HIGH COURT OF KARNATAKA AT BANGALORE] by Hon’ble Karnataka High Court where it has been held that option once exercised shall not be withdrawn by the manufacturer during the remaining part of the same financial year. Therefore, in this case option exercised in April, 2004 by the appellant will continue to hold good for the entire financial year. Appellant was not entitled to change such option exercised once and start paying duty at full rate. Therefore, observations made by first appellate authority in Order-in-Appeal to deny exemption for the entire financial year is ex facie wrong and is set aside. In such cases of interpretational disputes, Bench is of the considered opinion that no penalty proposed in the show cause notice is imposable.
Recovery of Cenvat credit - improper utilisation of CENVAT Credit - clearances of goods when 16% rate was wrongly paid by the appellant - Held that:- this aspect will only be decided by the adjudicating authority in remand proceedings as directed by the first appellate authority. - Appeal partly allowed and partly remanded back
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2016 (10) TMI 29
Clandestine removal of goods - Demand raised unjustly - processed fabrics dispatched in the name of M/s/Jayalakshmi Printing Mills were entered in the Central Excise Record on payment of duty, the processed fabrics dispatched in the name of M/s/Bharath Printing Mills - material facts and evidence not examined - Held that:- the order of the Adjudicating Commissioner shows that he has not applied his mind when he writes "without going too much into the identity of M/s.Jayalakshmi Printing Mills, Erode and M/s.Bharath Printing Mills, Erode he shall try to evaluate whether the quantities of processed fabrics specified in the show cause notice were manufactured and removed without payment of duty or not", that demonstrates that he had prejudged mind to reach to his decision without testing the evidence on record. The order has been passed superficially. The Authority records status of two noticees i.e. Jayalakshmi Printing Mills and Bharath Printing Mills as partnership firms and there was proximity between the two. But, he suddenly came to the conclusion that he has no difficulty to hold that M/s. Jayalakshmi Printing Mills was engaged in illicit manufacture of processed fabrics in the premises of M/s.Bharath Printing Mills and removed that without payment of duty also. He has brushed aside the documents gathered by investigation and failed to test evidentiary value thereof.
It was the duty of the Adjudicating Authority to ascertain whether there were two distinct and independent units existed and what was their liability on the basis of investigation result and evidence on record. It is necessity of law that an assessee should not be unjustly be dealt under law. There should be cogent and credible evidence in support of each material fact and decision. But that was not tested by the Commissioner. It is relevant to mention that in the SCN, the notice issuing authority noticed that M/s.Jayalakshmi Printing Mills had processed and cleared cotton fabrics to M/s.Bharath Printing Mills directly and through M/s.Senthilandavar Calendering Mills and M/s.Sri Devi Felt Calender without accounting the transactions in the statutory records and without payment of Central Excise duty. But all such facts were not tested.
Therefore, the manner in which the impugned order has been passed, that calls for direction to the Adjudicating Authority to redo the adjudication examining the controversy in the SCN and considering the material facts, evidence, law and previous directions of Tribunal as well as the defence plea, granting fair opportunity of hearing to the appellant. It is made clear to him that his order should confine to the allegations in SCN without any superficial approach to pass order since the impugned order has been passed superficially wasting public time and public money. - Appeal allowed by way of remand
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2016 (10) TMI 28
Manufacture - Nature of activity - iron /steel articles subjected to various processes like cutting, bending, punching and making holes - proprietor admitted that articles are manufactured by them - invoices clearly state that the goods supplied after cutting and drilling etc. resulting in emergence of completely different products - Held that:- it is found that the impugned order is specific and categorical on the factual issue. There is no material evidence to contradict the factual finding by the lower authority that activity can not be treated as manufacturing and no excise duty is leviable on it. - Decided against the Revenue
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2016 (10) TMI 27
Cenvat credit - dumpers - used in the factory as a material handling equipment for transportation of basic raw material (lime stone) to the crusher hopper for crushing - Held that:- by following the decisions of the Hon'ble Supreme Court in the case of Vikram Cement vs. CCE, Indore [2006 (2) TMI 1 - Supreme court] and in Madras Cements Ltd. vs. CCE, Chennai [2010 (7) TMI 179 - SUPREME COURT] wherein it was held that capital goods used as material handling equipments for moving the raw material are integrally connected to the manufacture of final products and, as such are eligible for credit, the impugned order is set aside. - Decided in favour of appellant
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2016 (10) TMI 26
Demand - failure to pay duty - Held that:- since the Respondents have not disputed the liability to pay Duty, there was no necessity for the Tribunal to examine the correctness of the adjudication in that regard.
Imposition of penalty - Rule 209A of the Rules - there was no evidence brought forth to link Shri N.Ramachandran, for the alleged violations - Held that:- Rule 209A of the Rules, has specifically required that any person, who deals with any Excisable goods which he knows or has reason to believe are liable to confiscation under the Act or Rules made thereunder, shall be liable to a penalty not exceeding three times the value of such goods or ₹ 5,000/- whichever is greater, if he is in any way concerned in transporting, removing or depositing, keeping, concealing, selling or purchasing or in any other manner deals with such goods. Therefore, it is essential that there must be evidence brought on record linking the role of the individual to any of these offending acts in which event alone the penalty contemplated by Rule 209A of the Rules, can be imposed. Since there was no material to link Shri N.Ramachandran, with any such acts enumerated under Rule 209A of the Rules, the penalty imposed against him under Rule 209A of the Rules, is liable to be set at naught and that was the reason why the Tribunal has rightly set aside that portion of the Order in Original passed by the adjudicating Authority.
Imposition of penalty - Rule 173Q of the Rules - Tribunal has reduced the penalty from ₹ 1,00,000/- to ₹ 50,000/- - Held that:- the discretion has not been exercised on sound lines and hence the Tribunal has reduced the penalty from ₹ 1,00,000/- to that of ₹ 50,000/-, though the Tribunal ought to have given the necessary reasons for it to substitute the quantum of penalty. But however, we cannot ignore the fact that the Order-in- Original does not speak of the liability of the goods for confiscation itself, at the first place. It is therefore, obvious that instead of remitting the matter to the Adjudicating Authority for consider afresh, even with regard to the penalty that is liable to be imposed under Rule 173Q of the Rules and furthermore with a view to shorten the litigation between the parties, the Tribunal has reduced the penalty from ₹ 1,00,000/- to ₹ 50,000/- and the Respondent/Manufacturer has not called in question that part of the order of the Tribunal and he has accepted it. Therefore, we see no reason to interfere with the order passed by the Tribunal. - Decided against the Revenue
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