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Central Excise - Case Laws
Showing 41 to 60 of 277 Records
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2016 (10) TMI 1083
Benefit of N/N. 99/93-C.E., dated 7-12-1993 - Foundry Grade Pig Iron - phosphorus content - The appellants contend that their product namely, ‘foundry grade pig iron’ is having phosphorous content of 0.2% and above; therefore, the same is entitled to the benefit of N/N. 99/93-C.Ex., dated 7-12-1993? - Held that: - Notification prescribes that ‘Foundry Grade Pig Iron’, falling under sub-heading No. 7201.00 of the First Schedule to the Central Excise Tariff Act, 1985, with a phosphorous content of 0.2% and above is exempted from the whole of the duty of Central Excise - The notification issued by the Central Government cannot be changed and misread by referring to some guidelines of the Circular issued by the Bureau of Indian Standards (BIS) to round off the test reports and read them to state that 0.15% and above is equal to 0.2% and above, which is the condition of the N/N. 99/93-C.E.
The argument of the appellants that once test results are in their favour, samples cannot be retested is also not a valid argument, when the Department had the intelligence of manipulation of test results and which was found to be true when the samples were sent to different laboratories for retesting and when in overwhelmingly large number of cases, the test results clearly indicated that the appellants’ unit was manufacturing low phosphorous grade pig iron, which is not entitled to the benefit of N/N. 99/93-C.E. as per the condition mentioned therein.
Time limitation - Held that: - it is on record that appellant were wilfully misstating and suppressing the facts and manipulating the test results with an intention to evade payment of Central Excise duty - Revenue can rightly issue the SCN, for the demand of the duty of Central Excise for the period of beyond one year.
Appeal dismissed - decided against appellant.
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2016 (10) TMI 1080
Refund of CENVAT credit - denial on the ground of unjust enrichment - Held that: - on plain reading of Sec. 11B 2(c), it is crystal clear that principle of unjust enrichment is not applicable for Cenvat credit refunds - refund allowed - appeal dismissed - decided against Revenue.
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2016 (10) TMI 1069
Classification of goods - whether diary whitener is classifiable under chapter heading 0401.13 or under chapter heading 0401.19 of the Central Excise Tariff? - benefit of N/N. 04/90 dated 20.3.1990 - Held that: - the chapter heading 0401.13 covers milk powder and skimmed powder specially prepared for feeding infant - Admittedly, the product involved is dairy whitener which constituents partially skimmed milk, therefore, the milk powder may be in any form i.e. full skimmed or partially skimmed powder. Therefore, the classification of the goods in question classifiable under chapter heading 0401.13 of CETA, 1985.
Whether the appellant is entitled for the benefit of Notification No.04/90 dated 20.3.1990 or not? - Held that: - N/N. 4/90-CE dated 30.3.1990 was superseded by N/N. 16/91-CE dated 25.7.1991, which exempted all goods under Tariff Sub Heading 0401.13. However, N/N. 16/91-CE was rescinded by N/N. 64/94-CE dt.1.3.1994. Therefore, the appellant is not entitled for the benefit of notification for the period 2.6.1998 to 17.7.1998.
Appeal dismissed - decided against appellant.
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2016 (10) TMI 1065
Valuation - whether the petroleum products cleared from warehouse to COCOO are to be valued in terms of Section 4(1)(b) of the Central Excise Act, 1944 read with Rule 7 of the Central Excise Valuation Rules? - Held that: - matter is squarely covered by the CESTAT, Bangalores decision in the case of CCE, Viskahapatnam vs. BPCL [2012 (12) TMI 471 - CESTAT, Bangalore], where it was held that it is immaterial as to whether the transaction value was based on APM or self-determined by OCM. Since in respect of transfers to COCO outlets, the price applicable to dealers at the "place of removal" (that is terminal points) has been adopted, the same is legal and proper - appeal disposed off.
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2016 (10) TMI 1058
CENVAT credit - welding electrodes - whether the appellants are eligible for credit on Welding Electrodes and Gases used for the repair and maintenance of plant/machinery during the period November, 2011 to June, 2012? - Held that: - in the case of Ramala Sahkari Chini Mills Ltd., [2016 (2) TMI 902 - SUPREME COURT], the Honorable Larger Bench of the Apex Court held that the word includes in the definition of inputs during the relevant period cannot be considered to have a restrictive meaning - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1052
Intermediary product - Chargeability/Marketability - impregnated special woven fabric arising during the manufacture of tubular bags - Held that: - the goods emerge during the continuous process of manufacture of tubular bags and have got a shelf life of only a few minutes. It is established that this intermediate product cannot be marketed; therefore, it cannot be called as ‘excisable goods’ - in K.E. Technical Textiles Pvt. Ltd. [2008 (10) TMI 122 - CESTAT, KOLKATA], it was held that the goods are not marketable, and therefore, are not excisable; no duty of Central Excise is leviable on the subject goods - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1047
Liability of interest - CENVAT Credit wrongly taken but reversed before utilization - Held that: - the appellant has produced the opening balance and closing balance of the credit account during the period February 2009 to September 2009 which evidences that the appellant had sufficient balance during the relevant time before reversal of the credit - The issue stands covered by the judgments laid in the case of CCE & ST, LTU, Bangalore V/s Bill Forge Pvt Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT], where it was held that once the entry was reversed, it is as if that the Cenvat credit was not available - the claim of interest by the revenue as well as the imposition of the penalty is unsustainable - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1036
CENVAT credit - duty paying documents - denial on the ground that debit note is not prescribed document for availing Cenvat credit and such debit notes do not bear the information required in terms of Rule 9 of CCR - Held that: - in various judgments it has been held that the Cenvat credit is admissible on the strength of debit note - reliance placed in the case of Godrej Consumer Products Ltd Vs. Commr. Of C. Ex. Indore [2010 (8) TMI 405 - CESTAT, NEW DELHI] - As regard the information to be mentioned on the debit notes, it is found that more or less all the information required to be mentioned in terms of Rule 9 of CCR appeared on the debit notes - credit allowed - decided in favor of appellant.
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2016 (10) TMI 1027
SSI exemption - Cenvat credit of duty availed on inputs and input services received by the appellant on or after 01/04/2008 - Held that: - such credits are availed in violation of Rule 6 (1) of CCR, 2004. The provisions of said rule clearly states that the Cenvat credit shall not be allowed on such quantity of input used in or in relation to manufacture of exempted goods. As such, the manufacturer is not eligible to avail any credit when they are manufacturing only exempted goods.
Reversal of credit availed on inputs, inputs contained in WIP and finished goods as on 01/04/08 as well as lapsing of balance of credit lying on the books of accounts of the appellants as on 01/04/200 - Held that: - The Honble High Court of Himachal Pradesh in Ranbaxy Laboratories Ltd. vs. CCE, Chandigarh reported in [2012 (4) TMI 369 - HIMACHAL PRADESH HIGH COURT] examined similar set of facts and held that though the final product may be exempt from payment of excise, the assessee cannot be asked to reverse the Modvat credit already taken by it - there is no justification to demand reversal of Cenvat credit already availed and also lying in books of accounts of the appellant.
No fresh credit can be taken from 01/04/2008 on any inputs as the appellants were manufacturing only exempted goods from that date and they are not covered by the credit scheme during that period.
Regarding imposition of penalty u/r 15 (1) of CCR, 2004, except for credits availed after 01/4/2008, the appellant is not liable to reverse/lapse the other credits duly taken, it is right and proper to reduce the penalty to ₹ 1 lakh on the appellant.
Appeal disposed off - decided partly in favor of assessee.
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2016 (10) TMI 1018
Reversal of CENVAT credit - clearance of capital goods after use and no removal as such - CENVAT credit taken on such capital goods is allowed on a graded scale w.e.f. 13.11.2007 - Held that: - Proposition of the appellant is correct on both counts as not cleared as such as well as Legislature has not intended the denial prior to 13.11.2007 - reliance placed in the case of Commissioner Central Excise Commissionerate Versus M/s Raghav Alloys Ltd. [2010 (4) TMI 294 - PUNJAB & HARYANA HIGH COURT], where on similar issue it was held that Insertion of proviso w.e.f. 13.11.2007 makes it clear that there is difference between machines cleared without putting into use and cleared after use - CENVAT credit allowed - appeal allowed - decided in favor of assessee.
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2016 (10) TMI 1017
Cum-duty benefit - the goods were claimed by the respondent-assessee during the relevant period without including the duty element, whether the assessee was not entitled to cum-duty benefit? - Held that: - The Tribunal, found on a reading of the provisions of Section 4(1) of the Central Excise Act and specially the explanation appended thereto that the assessee was entitled to cum-duty benefit. Since the taxes were paid by the respondent-assessee on the goods as per the explanation to Section 4(1), the assessee was entitled to cum-duty benefit - decided in favor of respondent-assessee - appeal dismissed.
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2016 (10) TMI 1008
Export of goods - jurisdiction of authority passing order - the decision in the case of M/s NVR Forgings Versus Union of India and others [2016 (5) TMI 7 - PUNJAB AND HARYANA HIGH COURT], contested - delay condoned - SLP dismissed.
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2016 (10) TMI 956
Delayed payment of central excise duty under Section 3A of the Central Excise Act, 1944 - Demand of Interest and penalty - Rules 96ZO, 96 ZP and 96 ZQ of the Central Excise Rules, 1994 - violative of Articles 14 and 19(1)(g) of the Constitution - Whether, mandatory quantum of penalty equal to the amount of duty prescribed under Rule 96ZO (3) (ii) of erstwhile Central Excise Rules, 1944, can be reduced? - Section 35-G of Central Excise Act, 1944 - Held that: - Reliance placed on the decision of case of Shree Bhagwati Steel Rolling Mills vs. Commissioner of Central Excise [2015 (11) TMI 1172 - SUPREME COURT] where it was held that when contrasted with the provisions of the Central Excise Act itself, the penalty provisions contained in Rules 96ZO, 96ZP and 96ZQ are both arbitrary and excessive. A penalty can only be levied by authority of statutory law, and Section 37 of the Act, as has been extracted above does not expressly authorise the Government to levy penalty higher than ₹ 5,000/-. Insofar as they impose a mandatory penalty equivalent to the amount of duty on the ground that these provisions are violative of Article 14, 19(1)(g) and are ultra vires the Central Excise Act.
The sole question of law in this appeal is answered against the department and in favor of the assessee - appeal dismissed.
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2016 (10) TMI 955
Whether in the light of the subsequent instructions issued by the Ministry, anything would survive in this appeal? - Held that: - the assessee had availed concessional rate of duty under Notification No.175/86. The assessee was not aware of the rates of excise duty taken in the tender and denied about awareness of preparation of tender papers on the basis of project report. The show cause notice itself alleges that the assessee has paid the central excise duty as per the manufacturing cost and that he has not compared the price with others. In the face of such an allegation in the show cause notice and when reliance is placed on a single piece of evidence, we do not think that in its further appellate jurisdiction this Court can enter into the domain of appreciation and appraisal of oral and documentary evidence. The documentary evidence having been appreciated and consistent with the case of the Revenue, there is no perversity in the order of the Tribunal. The appeal is, therefore, dismissed.
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2016 (10) TMI 954
Demand of duty - Compounded levy scheme - manufacture of stainless steel pattas/pattis - N/N. 34/2001-CE dated 28/6/2001 - failure to file the requisite declaration under the scheme - Held that: - The levy of excise duty stands only when goods are manufactured and cleared from the factory. In the absence of any evidence to show that any goods have been manufactured and cleared there can be no justification for demand of excise duty. In terms of the provisions of the notification which are in the nature of concession, in exceptional circumstances (such as the one in the present cases in which the declaration regarding the number of machines has not been filed) the manufacturer will be liable to pay duty on the entire production. However, Revenue has failed to undertake any serious investigation to establish the manufacture, if any of the stainless steel patta/pattis under the circumstances, I have no option but to set aside the demands and allow the appeals - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 953
Imposition of penalty - CENVAT credit reversed - structural items used for fabrication of support structures for capital goods such as overhead crane, wire drawing machinery etc - payment of duty with interest on demand - whether the imposition of penalty justified on the ground that wrongful CENVAT credit availed alleging suppression of facts and invoking the extended period of limitation? - Section 11A - Held that: - once the duty disputed is paid alongwith the interest payable under Section 11(AA), no show cause notice is to be served on the assessee, however, it is to be noted that this waiver of penalty is entitled only in those cases where there is no allegation of fraud, suppression or collusion. In the present case, I find that such allegations have been made in the show cause notice issued to the appellant. However, in the light of the fact that the availment of Cenvat credit on structural items has been in dispute for a long time, allegations of suppression cannot be made against the appellant. Under such circumstances, the benefit of waiver of penalty provided under Section 11A (2) is extendable to the appellant - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 952
Denial of CENVAT credit - demand of duty along with interest and penalty - Stainless Steel Pipes - entries in RG-1 register - Held that: - The appellant has brought in duty paid pipes and availed the Cenvat credit of the duty paid thereon. However, they appeared to have made a procedural mistake in making entry directly in RG-1 instead of making entry in RG-23 Pt. I. From the elaborate reconciliation chart produced by the appellant of which some sample entries have been verified by me, it is seen that the pipes imported are subjected to further processes such as drawing, annealing, heat treatment etc. the resultant pipes of different dimensions have also been cleared on payment of duty. It also prima facie appears that keeping in view the value addition at the hands of the appellant, the duty paid at this stage of the finished product is likely to have been more than the duty for which credit was taken. But to come to a definite conclusion, it would be necessary to go through in detail the reconciliation chart prepared elaborately by the appellant which indicates disposal of inputs bill of entrywise. For the purposes of carrying out the detailed verifications, I remand the case back to the original Adjudicating Authority. The appellant is directed to render all necessary help and explanation to enable smooth verification of the same. The original Adjudicating Authority will pass orders denovo after considering the claim of the appellant. The appeal is disposed of by way of remand.
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2016 (10) TMI 951
Clandestine removal of goods - shortage of goods - non-alloy steel ingots - cenvatable scrap - raw material - confiscation of currency - imposition of penalty - Held that: - it is clear that the law is well-settled that, in cases of clandestine manufacture and clearance, certain fundamental criteria have to be established by Revenue which mainly are the following : (i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions; (ii) Evidence in support thereof should be of: (a) Raw materials, in excess of that contained as per the statutory records; (b) Instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty; (c) Discovery of such finished goods outside the factory; (d) Instances of sale of such goods to identified parties; (e) Receipt of sale proceeds, whether by cheque or by cash, of such goods by the manufacturers or persons authorized by him; (f) Use of electricity far in excess of what is necessary for manufacture of goods otherwise manufactured and validly cleared on payment of duty; (g) Statements of buyers with some details of illicit manufacture and clearance; (h) Proof of actual transportation of goods, cleared without payment of duty; (i) Links between the documents recovered during the search and activities being carried on in the factory of production; etc - nothing has been brought on record with corroborative evidence to allege clandestine removal against the appellant.
Confiscation of currency - The seized currency during the course of investigation cannot be confiscated without proving that the said seized currency is the sale proceeds of excisable goods cleared clandestinely. Therefore, we hold that absolute confiscation of the seized currency of ₹ 47,00,000/- is not sustainable accordingly, the confiscation is set aside and the Adjudicating Authority is directed to release the said amount immediately to the appellants.
The demands against the appellants not sustainable - penalty on all the appellants not sustainable - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 950
Refund claim - Ayurvedic Medicaments(Pain Balm) - undue enrichment - Section 11B of the Act - rejection of refund mainly on the ground that the appellant had not provided any documentary proof to show that the provisional assessments for the earlier period 1985-1991 and have not provided the invoices for the period from March 1994 to April 1995 - Held that: - refund arising out of the finalization of provisional assessments during the period February 1985 to April 1995 need not pass the test of unjust enrichment as the amendment to Sub-rule 5 of Rule 9B came into force only w.e.f.25-06-1999. In the event, we are of the view that appellants are eligible for the refund of ₹ 2,86,39117/- for the period 3/85 to 4/91 and 3/94 to 4/95 as prayed for in their appeal - refund allowed - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 949
Dis-allowance of benefit of exemption notification at concessional rate - removal of cement - denial on the ground the RSP was printed on the bags even though it was not required to be printed - Notification No.4/2006-CE, dated 01-03-2006 as amended. - the decision in the case of COMMISSIONER OF C. EX., HYDERABAD-III Versus SAGAR CEMENTS LTD. [2010 (4) TMI 418 - CESTAT, BANGALORE] referred - Held that: - the issue is squarely covered by the case and the decision of the case apply where it was held that requirement of not printing of retail sale price not applicable to the respondent as goods sold to Andhra Pradesh State Housing Corporation Ltd. By indicating the price at which it was contracted. No case of revenue that respondent not required to declare the retail sale price on the supplied bags. Cement bags manufactured by the respondent not out of the purview of Standards of Weights and Measure (packed Commodities) Rules, 1977, as they were required to declare the RSP on the product. Authorities under the Standards of Weights and Measures Act, informed all the respondents for mandatory declaration of retail sale price.
Appeal dismissed - decided against Revenue.
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