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Central Excise - Case Laws
Showing 41 to 60 of 168 Records
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2016 (5) TMI 1121 - CESTAT AHMEDABAD
Conversion of DTA unit to an 100% EOU - whether CENVAT Credit lying in balance at the time of conversion can be availed and utilized by the 100% EOU? - Held that:- Appellant had availed CENVAT Credit as per CENVAT Credit Rules and it does not prohibit the domestic unit converted into an 100% EOU, availing and utilizing the CENVAT Credit lying in balance. Prior to amendment of Rule 17 of Central Excise Rules, 2002, an 100% EOU was not allowed to pay duty by utilizing the cenvat/modvat credit. This aspect has been deliberated in detailed in Sun Pharmaceuticals Indus. Ltd case (2009 (5) TMI 849 - CESTAT CHENNAI). Also see GTN Exports Ltd’s case [2008 (7) TMI 377 - CESTAT, CHENNAI ]
In view of the above consistent decisions of the Tribunal, we do not see any reason to record a different finding. Consequently, the impugned order is set aside and the appeal is allowed in favour of assessee
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2016 (5) TMI 1120 - CESTAT MUMBAI
Waiver of penalty imposed - Rule 26 of the Central Excise Rules, 2002 - Main noticee against whom duty, interest and penalty was proposed have paid duty, interest and 25% of penalty within one month from the date of show cause notice, therefore, the proceedings against the present appellant should also stands concluded along with the main assessee
Held that:- the duty liability has been discharged after the issuance of show cause notice. In my view, the benefits which are available to an assessee prior to issuance of show cause notice should also be extended after the issuance of show cause notice, if liability is discharged before the adjudication order. Be that as it may, the issue seems to be covered by the Division Bench decision of this Tribunal in the case of Sonam Clock Pvt. Limited & Others v. CCE, Rajkot – [2012 (10) TMI 78 - CESTAT, AHMEDABAD] (wherein I was one of the Member). I do not find any merits in the grounds raised by the Revenue that assessee may seek refund of the amount as that the entire order-in-original is set aside as the first appellate authority has considered the extension of benefits of Section 11A to the assessee only on the ground that he has paid the amount in full. If the assessee would not have paid this amount, this benefit would not have been extended to him. Therefore all the appellants are entitled for the immunity as per proviso to Section 11A (2) and accordingly they are entitled for the waiver of penalty imposed on them under Rule 26 of the Central Excise Rules, 2002. - Decided in favour of appellant
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2016 (5) TMI 1119 - CESTAT MUMBAI
Entitlement for Cenvat credit - M.S. Angles, M.S. Flat, CTD Bar, M.S. Sheet/Plate - goods used for supporting structure to civil construction work, hence cannot be considered as components, spares and accessories of Capital Goods as per definition of Capital goods specified under Rule 2(a)A of CCR, 2004. Also Cenvat credit was disallowed even for the period prior to amendment made on 7/7/2009 - Held that:- in view of the various judgments, it can be seen that the credit in respect of steel items used for fabrication of Cooling bed, Crane Gantry is allowable. On the similar line steel used for fabrication of other capital goods are also allowed.
On the issue of whether the amendment in Cenvat credit Rules of 7/7/2009 is retrospective or prospective the same has been distinguished by the judgment of Hon'ble Chhattisgarh High Court in the case of Scania Steels and Powers Ltd. v. Commissioner - [2011 (9) TMI 972 - CHHATTISGARH HIGH COURT] where in it was held that amendment made on 7/7/2009 in the definition of 'input' cannot be applied retrospectively. For this reason Vandana Global judgment of Larger bench reported in [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] stands distinguished. As regard the claim of the appellant on CTD bar, I am of the view that CTD bar invariably used for construction purpose, which cannot be allowed therefore the Cenvat credit is disallowed in respect of CTD bar. Hence, except CTD bar, all other steel material are admissible inputs and credit is allowed. - Decided partly in favour of appellant
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2016 (5) TMI 1118 - CESTAT MUMBAI
Refund claim - excess duty paid - procedure of provisional assessment not followed - Unjust enrichment - Held that:- the appellant admittedly filed the refund claim within one year. It is also not in dispute that the goods were supplied to the appellant's own unit, therefore the valuation provision of Rule 8 of the Central Excise Valuation Rules, 2000 applies. According to which, the price at the time of clearance of the goods is always provisional price. The final price can be ascertained only on the basis of CAS4, which can be prepared only after completion of the financial year and on availability of the actual data of various overheads, till that time whatever price on which the clearances are made is on estimation basis. In this process, if there is any shortfall in the duty, the same is required to be paid on finalization of valuation on the basis of CAS4. Similarly, if there is an excess payment over and above the final price on the basis of CAS4, the same shall be refunded to the appellant. I am therefore of the view that merely because the appellant have not followed the procedure of provisional assessment, the price at which the duty was paid at the time of clearance cannot be treated as final assessment. Therefore, for this reason refund of excess paid duty cannot be denied by relying on the various judgments.
As regards unjust enrichment, it is found that the assessee was under bonafide belief that their stand that since the recipient unit has not availed the Cenvat Credit, the incidence of duty has not been passed on therefore they have not produced any other evidence on this fact. I accept the request of the appellant that the factual aspect on non-passing of incidence of duty should be verified. Therefore the matter is remanded back to the adjudicating authority with a direction that the appellant may be given an opportunity to present their case along with documentary evidence to prove that incidence of excess duty paid has not been passed to any other person. - Appeal disposed of by way of remand
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2016 (5) TMI 1117 - CESTAT ALLAHABAD
Reversal of attributable credit on inputs and input services consumed for generation of electricity used in colony, guest house, bank, canteen etc. for non-manufacturing activity or pay an amount equal to 10% of sale price of such electricity sold to U.P.Power Corporation Ltd. - Held that:- as the appellant has already reversed the Cenvat Credit on input/input services attributable to generation of electricity sold to M/s U.P.Power Corporation Ltd. is sufficient in compliance to provisions of Rule 6 of the Cenvat Credit Rules, 2004, therefore, the appellant is not required to pay 10% of the value of electricity - the issue is no longer res-integra and the same is covered by the decision of SMB Bench of this Tribunal in the case of Bajaj Hindustan Ltd. Versus Commissioner of C. Ex. & S.T., Meerut-I [2015 (6) TMI 1011 - CESTAT NEW DELHI]. Therefore, by relying on the same, the impugned order is set aside. - Decided in favour of appellant
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2016 (5) TMI 1108 - DELHI HIGH COURT
Validity of demand raised invoking Extended period of limitation in the Second Show Cause notice - Second SCN was issued for the earlier period than which was covered by the first SCN - Held that:- Department was indeed aware of the fact that the Petitioner was clearing PAA, made from captively consumed BeCN cleared by paying nil duty and further that PAA was also being cleared upon payment of nil duty. The fact that it asked the Petitioner to reverse the MODVAT credit on inputs purchased from outside and the Petitioner complied, belies the Department's case to the contrary. Secondly, a comparison of the two SCNs shows that the second SCN for the extended earlier period 1st March 1986 till 31st December 1989 is a virtual repeat of the first SCN dated 19th February 1991 except for one paragraph extracted hereinbefore. This merely sets out the language of the proviso to Section 11 A (1) and makes no reference to material that was not already available with the Department when the first SCN was issued.
In such circumstances, the ratio of the decision in Nizam Sugar Factory [2006 (4) TMI 127 - SUPREME COURT OF INDIA] applies. - in the present case, the conditions for invoking the extended period of limitation in terms of the proviso to Section 11 A (1) of the CE Act were not fulfilled and that the demand raised in respect of the BeCN used in the manufacture of PAA for the extended period of 1st March 1986 till 31st December 1989 was barred by limitation. - Decided in favor of assessee.
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2016 (5) TMI 1075 - MADRAS HIGH COURT
Eligibility of refund of 4% Special Additional Duty (SAD) - Notification No.102/2007-Cus, dated 14.09.2007, as amended by Notification No.93/2008 dated 1.8.2008 - Sale of goods - Refund rejected as the petitioner has not paid VAT/CST on the said goods - Appeal is pending before CESTAT - Held that:- the first respondent is directed to dispose of the appeals preferred by the petitioner as early as possible, preferably within a period of four months from the date of receipt of a copy of this order as petitioner is put to financial hardship and because of the competitive market, the non-grant of refund would affect the business of the petitioner. - Petition disposed of
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2016 (5) TMI 1074 - GAUHATI HIGH COURT
Revoking the area based exemption - North Eastern India region - Jarda scented tobacco/pan masala containing tobacco - Validity of the Notification No. 11/2007-CE dated 1-3-2007 - notification taking away the benefits allowed to the appellant-firm under the Notifications No. 32/1999-CE and 33/1999-CE both bearing dated 8-7-1999 - applicability of doctrine of promissory estoppel - Held that:- The impugned Notification No. 11/2007-CE is hit by the doctrine of promissory estoppel for the following reasons:
(a) By the North East Industrial Policy, 1997 implemented by the Notifications No. 32-1999-CE and No. 33-1999-CE, a promise was held out by the respondent authorities that excise and additional excise exemptions would be given to those investors who started production of identified goods for a period of ten years;
(b) The appellant believed that the promise was true and, if acted upon, would be entitled to a refund of excise duty, and had, therefore, acted upon such promise; and
(c) While acting upon such promise, the appellant altered its position by investing sixty-nine crores of rupees in land, buildings, plants and machineries, office equipments, vehicles and stocks.
(d) The authority issuing the Notifications Nos. 11/04-CE and 28/04-CE acted within the scope of his authority.
(e) The impugned Notification No. 11/07-CE is ultra vires Section 5A of the Excise Act and is, therefore, not operative; there is thus no difficulty in invoking the doctrine of promissory estoppel.
Detail averments were made by the respondent authorities as to the effect that between 25-8-2003 and 21-1-2004, which is known as the pre-escrow account period, the appellant was shown to have invested an amount of rupees one hundred crores out of which only rupees 34 crores was certified by the Investment Appraisal Committee by way of investment in plants and machineries and social infrastructure project, whereas the balance remained un-invested which was subsequently appropriated by the respondent authorities. The respondents also point out that the Commissioner had initiated recovery measures against the appellant by issuing demand notices under Section 11A of the Excise Act for the period of 25-8-2003 to 8-7-2004 as it defaulted in paying back duty to the public exchequer on its own. It is further pointed out by the respondents that during the period from 25-8-2003 to 8-7-2004, the appellant availed of duty exemption to the order of ₹96,61,11,858/- which required it to invest the equivalent amount. It was also required to produce investment certificates for the said amount, but it produced the investment certificate only to the tune of rupees thirty-four crores. According to the respondents, the balance amount of rupees sixty-three crores not so invested in the manner specified in the notification is required to be deposited back with the public exchequer. Instead, the appellant resorted to litigations causing inordinate delay to the respondents in recovering public money.
In our opinion, these specific averments made by the respondent authorities have not received satisfactory response from the appellant despite establishing a case of promissory estoppel thereby creating hurdle to its case for complete relief from this Court. No copies of the judgments relied upon by it are also annexed to the writ petition or the memo of appeal. In this view of the matter, the Investment Appraisal Committee shall have to take a call on these issues again. Be that as it may, the impugned judgment is not sustainable in law, and is, therefore, liable to be set aside.
Thus the impugned judgment dated 10-12-2010 passed by the learned Single Judge is, accordingly, set aside.Consequently, the impugned Notification No. 11/2007-CE dated 1-3-2007 is hereby quashed.
The Investment Appraisal Committee is, therefore, directed to give an opportunity of hearing to the appellant to prove that it has actually invested ₹96,61,11,858/- in the specified items for availing of the benefits made available under the Notifications No. 8/04-CE and 28/04-CE dated 21-1-2004 and dated9-7-2004 respectively within a period of two months.If the appellant can prove that it has actually invested ₹ 96,61,11,858/- or less, the Committee shall issue an Investment Certificate to that effect whereupon the respondent authorities shall refund to the appellant so much of the excise duty, which may become due to it, within a period of three months thereafter.
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2016 (5) TMI 1073 - MADRAS HIGH COURT
Whether the input procured solely for the purpose of export by the assessee is entitled to CENVAT Credit when the goods were subjected only to testing and packing - Held that:- the facts of the case show that before the goods were handed over to KTTM, the assessee had undertaken a series of processes. Steel scrap, pig iron and chemicals are received as inputs by the assessee and castings are manufactured. It is only after such a manufacturing activity is undertaken, the goods are sent to one job worker for machinisation. That job worker sends the machinised goods to KTTM Ltd. Therefore, the question of law raised by the Department proceeds to a wrong presumption that the assessee had done nothing except testing and packing. Therefore, the question of law is thoroughly misconceived as it does not arise out of the facts of the case. The questions of law raised in other appeal also proceed on the premise that whatever has been done before the goods are received from the KTTM Ltd., have to be completely forgotten.
This is not a case where the assessee is attempting to claim CENVAT Credit twice over. Whatever credit was claimed by them before they sent it to KTTM Ltd., was actually reversed. Therefore, the credit was still available for the assessee to take. The Tribunal was therefore, right in this regard in holding that testing and packing were part of a series of steps undertaken by the assessee for the manufacture of the goods. - Decided against the revenue
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2016 (5) TMI 1072 - CESTAT NEW DELHI
Un-sustainability of the charge of clandestine removal of excisable goods against the respondent - Held that:- While statements given before the excise officers are admissible evidence, the contents of such statements should clearly bring out the nature of offence with specific details which can be cross verified also. In the present case specific details and such cross verification and corroboration is lacking. Mere payment of some amount during investigation by itself cannot be held as admission of duty evasion which has to be decided based on material evidence collected during investigation. Perusal of the detailed opinion given by the hand writing expert brings out the fact that detailed reasoning has been given by the expert and the opinion cannot be brushed aside lightly.
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2016 (5) TMI 1071 - CESTAT KOLKATA
Valuation - Goods manufactured by M/s.TCIL on job-work basis for M/s.TISCO - Whether valuation of goods manufactured on job-work basis are required to be done @ 115% of the cost of manufacture of FHCR Coil under Rule 8 of the Central Excise Valuation Rules during the period 01.07.2000 to 09.02.2001 - Held that:- job-worker M/s.TCIL is not a sister concern of M/s.TISCO and the goods manufactured by the job-worker are not used captively by him or on his behalf (job-worker's behalf) in the production or manufacture of other articles. In view of the observations and the settled proposition of law duty on manufacture by job-worker M/s. TCIL cannot be demanded @115% of the cost of manufacture for the said period, under Rule 8 of the Central Excise Valuation Rules.
Whether demand of ₹ 17.00 Lakhs (approx.) calculated by the Adjudicating authority by taking the yield percentage as 92% was correct - Held that:- as per the conversion agreement between M/s.TCIL and M/s.TISCO minimum yield has been considered to be 92% but at the same time the contract also mentions it clearly that yield shall be calculated on actual basis. Appellant has brought on record the documents conveying that yield during the relevant period of demand varies from 94.86% to 95.42%. Accordingly quantification of demand, if any, has to be done by taking into consideration the percentage of actual yield during the period under consideration. However, such a quantification is required to be done by the Adjudicating authority for which this aspect is required to be remanded back to the Adjudicating authority for quantification purpose only.
Whether outward freight incurred by M/s.TCIL on transporting finished goods from the factory is required to be included in the assessable value - Held that:- Adjudicating authority has observed that Appellant M/s.TCIL has not given the required data as to how much freight shown in his books of account pertain to inward freight on raw materials and how much pertain to outward freight on the finished products. On merits it is held that outward freight incurred by the Appellant from the place of removal is not required to be added to the assessable value of the goods manufactured on job-work basis which are cleared on payment of duty from the factory gate of the job-worker. However, the quantum of such outward freight incurred by the Appellant is required to be substantiated by the relevant record maintained by the Appellant and also supported by a Cost Accountant's Certificate. For this quantification also the matter is required to be remanded back to the Adjudicating authority for quantifying the demand, if any, based on Cost Accountant's Certificate to be produced by the Appellant before the Adjudicating authority.
Imposition of penalties - Held that:- it is observed that Appellant M/s.TCIL was aware of the fact that cost of raw materials supplied by M/s.TISCO was on a higher side. M/s.TCIL took up the matter with M/s.TISCO regarding calculating duty liability based on higher value of raw materials supplied. This correspondence regarding payment of duty at higher cost of raw material supplied with M/s.TISCO was also initiated only after department started investigating into the matter. At that stage Appellant M/s.TCIL was required to approach the department as soon as they realized higher cost of raw material supplied. Accordingly penalty is required to be imposed upon the Appellant only under Rule 173Q of the Central Excise Rules, 1944. Bench is of the considered view that excess duty, if any, paid by the Appellant would be admissible as Cenvat Credit to M/s.TISCO, therefore, there cannot be any intention to evade payment of duty for attracting imposition of penalty under Section 11AC as held by CESTAT Delhi in the case of Agarwal Pharmaceuticals vs. Commissioner of C.Ex., Delhi-I [2001 (11) TMI 162 - CEGAT, NEW DELHI].
So far as imposition of penalties upon Appellant M/s.TISCO, Shri B.Muthuraman, MD and Shri M.K.Jha, Dy.Controller of Accounts of M/s.TCIL is concerned, it is observed that Shri B.Muthuraman, MD and Shri M.K.Jha, Dy.Controller of Accounts were the employees of M/s.TISCO and M/s.TCIL and were not to gain financially on account of short payment for which credit was also admissible. Similarly M/s.TISCO has not dealt directly with the manufacture and clearance of goods on which duty has been demanded. Accordingly, it is held that no penalty is imposable upon Appellants M/s.TISCO, Shri B.Muthuraman and Shri M.K.Jha. - Appeals allowed by way of remand
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2016 (5) TMI 1070 - CESTAT MUMBAI
Reversal of Cenvat Credit availed on the capital goods and removed subsequently after use - Cenvat Credit of the Central Excise duty paid on the capital goods and used the same in the factory premises - Held that:- Till the law was amended as on 13-11-2007 in respect of used capital goods, there was no liability to pay duty. In fact, this is evident from the fact that in Cenvat Credit Rules, 2004, the proviso was added making the position clear which was not there in the earlier orders. The proviso was added by a Notification No. 39/2007 dated 13-11-2007. therefore, prior to 13-11-2007, there was no duty payable in respect of capital goods which was used before it is removed. In that view of the matter, second question of law is answered in favour of the assessee and against the Revenue. See Solectron Centum Electronics [2014 (10) TMI 596 - KARNATAKA HIGH COURT ]
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2016 (5) TMI 1069 - CESTAT NEW DELHI
Demand of excise duty only on the basis of certain private records maintained by the transporters - Clandestine removal of MS Ingots - Held that:- it is apparent that the presumptive conclusion in the impugned order that wherever invoice details were not available the clearances were clandestine removals without payment of duty by the appellant are based solely on private record maintained by transporters cannot be the basis for demanding Central Excise duty from the manufacturer. As forcefully contended by the appellant it is not clear as to why no verification was attempted for corroboration either with the appellant's records of premises and/or with the buyers of such ingots. The whole investigation in the case refers to only single source of evidence namely the transporters record confirming by the proprietors of such transport companies without any sort of corroboration from any other source.
It is seen that in the present case there is not even an enquiry to bring out any collaboration so that the evidence can point out preponderance of probability of such possible clandestine removal by the appellant. This is not a case of various evidences if not conclusively establishing, at least pointing out a serious probability of clandestine removal of excisable goods. As already noted that the Departmental enquiry did not even cross the preliminary stage and stopped with recovery of private documents from the transporter to conclude the allegation of clandestine removal by the appellant. Reference has been made to various cases. Hence, the impugned order cannot be sustained and is set aside. - Decided in favour of appellant
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2016 (5) TMI 1068 - CESTAT CHENNAI
Eligibility to take credit of service tax on the freight expenses incurred towards export outward transportation of goods manufactured - recovery of the credit availed on input services such as outward freight - Held that:- By following the ruling of this Tribunal in the case of Hyundai Motors [2016 (1) TMI 519 - CESTAT CHENNAI], to hold that the appellants are eligible for credit.
By also following the ruling of this Tribunal in the case pertaining to M/s Lucas TVS Limited cited [2016 (4) TMI 189 - CESTAT CHENNAI], the credit availed by the appellant on outward transportation of export of goods is eligible. In view of the settled legal position and in view of the above case laws and the Circular, it is of the view that Port is to be construed as the "place of removal" for the purpose of exports. As regards customs house agent service and wharfage charges, the same are eligible for cenvat credit in view of the nexus in existence between the goods manufactured and the services under dispute which are essential for export, the same is qualified for credit. Having decided that the place of removal is the Port, hold that the appellants are eligible for cenvat credit on GTA, CHA and wharfage charges. Since credit is held to be eligible for the appellants, levy of penalty is also set aside. - Decided in favour of assessee
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2016 (5) TMI 1067 - CESTAT MUMBAI
Confiscation in lieu of redemption fine - Rule 25 of the Central Excise Rules - Default in payment of duty on due date during the period 2009-10 - Appellant suo moto calculated the short paid duty and discharged the same without pointed out by the department alongwith interest and intimated to the department - Held that:- as per the said act of the appellant no show cause notice should have been issued for any demand for the reason that after payment of duty and their declaration in their letter no short payment of duty exist. Therefore, as per the provisions of Section 11A(2B), it is very clear that if duty and interest is paid on the ascertainment by the assessee the case should be concluded and no show cause notice should be issued. As per the given fact of the case, we do not see any reason why the appellant's case is not covered under the provisions of Section 11A(2B).
Demand of duty alongwith interest and imposition of penalty - Utilization of Cenvat credit - Held that:- the issue has been settled by the Hon’ble Gujarat High Court judgment in case of Indsur Global Ltd Vs. Union of India [2014 (12) TMI 585 - GUJARAT HIGH COURT], wherein provision of bar of utilization of Cenvat credit in certain circumstances has been held ultravirus, accordingly the appellant is free for utilization of the Cenvat credit even during the default period of payment of duty. However, provision of consignment wise payment of duty still exist, therefore, to this extent there is non compliance of provisions, as a result appellant is require to pay interest from the date of clearance till date of payment of duty and not from the due date of monthly payment of duty. Therefore the appellant is required to pay the interest which is to be calculated from the date of clearance of the goods till the date of payment of duty.
Since the appellant admittedly paid duty alongwith interest subject to correctness thereof, there was no need to issue notice for demand of such duty and appropriation thereof, consequently no penalty is imposable on the appellant. Consequential confiscation of the goods is also set aside. Decided partly in favour of appellant
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2016 (5) TMI 1066 - CESTAT CHENNAI
Demand of duty alongwith interest - Re-classification of certain mis-classified lubricating oils and denial of exemption notification - No SCN issued for demanding excise duty under Section 11 A of Central Excise Act - Held that:- the SCN is vague and issued for re-classification of the goods and no demand was raised. Whereas, under Section 11 A, it is mandatory for any recovery of duty not paid or short paid. There shall be a SCN demanding the recovery of duty under Section 11 A. Here, under no stretch of imagination, the alleged SCN can be construed as SCN issued under Section 11 A as the said SCN was primarily issued for re-classifying and denying exemption notification as per the classification list filed by the appellant under the erstwhile Rules. The adjudicating authority proposed to change the classification and denying exemption, there should be a clear demand issued under Section 11 A. Whereas, in the present case, neither SCN says so, on the contrary, the adjudicating authority after re-classifying the goods and denying exemption, straightaway confirmed the demand under Section 11 A. Therefore, by respectfully, following the Apex Court decisions in the case of Metal Forgings Vs. UOI [2002 (11) TMI 90 - SUPREME COURT OF INDIA] and in the case of Gujarat Machinery Manufactures Ltd. Vs. CCE, Baroda [1996 (9) TMI 121 - SUPREME COURT OF INDIA], we find there is no demand in the SCN issued under Section 11 A for recovery or any short levy of duty on account of re-classification. The demand is not sustainable and is set aside. - Decided in favour of appellant
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2016 (5) TMI 1065 - CESTAT MUMBAI
Classification - Whether the product “Super Micro Binder 20” would be appropriately classified under Chapter Heading 3906 or 3911 and whether product “Triton AE” is correctly classifiable under Heading 3911 as claimed by the appellant or 3906 as claimed by the Revenue - Held that:- it is found that the product which answers to the description of Acquous Polymer in primary form are covered under heading 3906. Also the Dy. Chief Chemist’s report, categorically states that the product Super Micro Binder 20 is a resin based on Acrylic Monomers. If the product of the appellant is based on Acrylic Monomers, the product merits classification under 3906.90, as there is technically no difference in respect of acrylic monomer or acrylic polymer. Our finding is based upon a published literature which indicated that a polymer can be made up of thousands of monomer. Hence, acrylic polymer which are covered under Heading 3906 are nothing but acrylic monomer linked up by a process called polymerization.
The Tribunal has held in respect of similar products in the appellant's own case reported in [2001 (4) TMI 358 - CEGAT, MUMBAI], that similar product containing copolymer resins were held merit classification under chapter Heading 3906.90. The said order was affirmed by the Apex Court Therefore, we do not find any difference in the products in question before us as against the product which is classified under CETH 3906.90 by our order dated 30-4-2001. Since the classification of the product “Super Micro Binder 20” is upheld under Chapter Heading 3906.90, the quantification of the demand would be recalculated by the lower authorities in accordance with the findings recorded in this order. The entire issue being of classification dispute, in our view, there is no necessity to impose any penalty on the appellant. - Appeals disposed of
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2016 (5) TMI 1064 - CESTAT MUMBAI
Allowability of refund claim - motor vehicles sold as taxis- partial exemption allowed by notification no. 6/2006-CE dated 1st March 2016 - conditions of the exemption notification had been complied with except that the taxis were registered for a limited period of five years - Held that:- in view of the decision of Tribunal in the case of Maruti Udyog Ltd. v. Collector of Central Excise New Delhi [1998 (8) TMI 399 - CEGAT, NEW DELHI] which has been upheld by the Hon'ble Supreme Court reported in [1999 (7) TMI 661 - SUPREME COURT], concessional rate of duty is subject to 'registration for use solely as taxi' without any reference to the period of registration; it was, therefore, improper on the part of the lower authorities to insist upon a tenure that is not expressly stated there. The lower authorities should have borne this in mind considering that all other conditions stipulated for eligibility of the concessional rate have been complied with. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 1050 - CESTAT NEW DELHI
Whether grey fabric manufactured by the appellants and sent by them to the job worker is required to be treated as intermediate products so as to invoke provision of rule 16(B) - Held that:- the issue is no more res integra. By following the decision of Tribunal in the case of M/s. Valentino Syntex Pvt. Ltd. Vs. CCE Jaipur [2008 (2) TMI 806 - CESTAT, NEW DELHI], the grey fabric manufactured by the assessee out of duty paid yarn and cleared to the job worker for further processing and subsequently received and cleared on payment of duty are required to be extended the benefit of Rule 16(B) of Central Excise Rules by considering the same as intermediate goods. The said decision stands subsequently followed by the Tribunal in the case of Sangam Spinners Vs. CCE Jaipur [2015 (11) TMI 1029 - CESTAT NEW DELHI]. - Decided in favour of appellant
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2016 (5) TMI 1049 - CESTAT KOLKATA
Eligibility of Cenvat credit of NCCD - paid on input panmasala received by the appellant from the suppliers who availed the benefit of Notification No. 27/2001-CE dated-11/5/2001 - Rule 3(1)(v) of the CENVAT Credit Rules - Held that:- the contention raised by the appellant, that NCCD duty credit utilized by debiting the CENVAT Credit account, cannot be denied for units not availing area based exemption, is acceptable as these amounts are not hit by the CENVAT Credit Rules. The amount of such NCCD Credit rejected, if any is required to be quantified by the Adjudicating authority and the same will be admissible to the appellant.
Invokation of extended period - Rule 14 of the Cenvat credit Rules, read with Section 11A of the Central Excise Act, 1944 - NCCD credit taken by appellant was duly reflected in their periodical returns filed with the department alongwith a list of raw materials supplied with their address and registration numbers - Held that:- as it is observed from the ER-1 return copies for the month of March, 2002, March, 2003 and March, 2004 that appellant has indicated the NCCD CENVAT Credit taken by the appellant. Appellant has also given a list of all the input materials and their registration numbers. It is also observed from the covering letters filing ER-1 returns that even photo copies of Cenvatable invoices were also submitted to the department by the appellant. Therefore, five year’s extended period of demand cannot be invoked against the appellant. However, the entire demand is not time barred as the period of demand is 11/5/2001 to 31/3/2006 and the show cause notice is issued on 10/08/2006. The CENVAT credit taken within the normal period of limitation is not admissible to the appellant and is required to be paid alongwith appropriate interest under Section 11AB of the Central Excise Act, 1944.
Imposition of penalty - Held that:- the issue involved in the present appeal was a case of interpretational dispute. All the relevant facts and provisions of CENVAT Credit Rules were known to the department also. Periodical audits of the appellant’s unit were also done by the Internal Audit parties of the department. If department could not raise doubts about the admissibility of credit then Appellant cannot be held responsible for taking a deliberately wrong credit for imposing penalty. Accordingly, it is held that penalty under Rule 15 of the CENVAT Credit Rules, 2004 cannot be imposed and is set aside. - Appeal disposed of
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