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Central Excise - Case Laws
Showing 61 to 80 of 168 Records
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2016 (5) TMI 1048 - CESTAT NEW DELHI
Demand of duty - equivalent to duty foregone on the inputs (diesel/furnace oil) procured availing benefit of Notification 22/03-CE dated 21.03.2003-CE thereof - Waste of sesame seeds cleared without payment of duty although the same resulted from use of diesel/furnace oil - sesame seeds among others are allowed clearance on payment of nil rate of duty vide Notification No.23/2003-CE dated 31.03.2003. This confirms that waste of sesame seeds is not a non-excisable item. As the above quoted proviso to para 6 of Notification 22/03-CE is applicable only when the articles are not excisable, the said proviso is not applicable to the impugned goods.
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2016 (5) TMI 1047 - CESTAT MUMBAI
Entitlement of Cenvat credit - Security services, Fettling Contract Services and Architectural Services - Services not received in the registered unit - Held that:- Cenvat Credit in respect of the input service cannot be denied merely for the reason that the services were received and used outside the registered premises. There is no prohibition for availing the Cenvat Credit in such cases, the Cenvat Credit on input service is admissible so long the services are used in or in relation to the manufacture of final product or for providing output service irrespective of the location where the services were received and used by applying the ratio of Tribunal decision in the case of M/s. Aurobindo Pharma Ltd. Vs. Commissioner of Central Excise, Chennai-III - [2015 (3) TMI 1186 - CESTAT, CHENNAI]. Therefore, the appellant is entitled for the Cenvat Credit in respect of Security Services, Fettling Contract Service & Architectural Services used outside the factory of the appellant in their own Hinjewadi & Wai unit. - Decided in favour of appellant
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2016 (5) TMI 1046 - CESTAT MUMBAI
Entitlement for Cenvat credit - debit notes issued by the service provider in respect of service - Ld. Commissioner raised some shortcomings in the debit notes denying the credit - Held that:- whatever informations required in terms of Rule 4A in the document, more or less all the informations are appearing in the debit notes, therefore the debit notes can be accepted for allowing Cenvat Credit. Therefore, this Tribunal has taken a consistent view that Cenvat credit can be allowed in the debit note if it contains the informations as required under Rule 4A of Service Tax Rule, 1994. The various decisions cited by the appellant are squarely applicable. - Decided in favour of appellant
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2016 (5) TMI 1045 - CESTAT ALLAHABAD
Extended period of limitation - Valuation - Inadmissibility of deduction of transportation charges on equalized basis - Rule 5 of Central Excise Valuation Rules, 2000 - Duty demanded alongwith penalty - Revenue contended that assessee did not disclose any vital facts to the Department that they were not including freight and insurance charges in the assessable value while making the delivery at FOR destination - Held that:- the respondent assessee have filed the paper book enclosing the two letters dated in 11.09.2001 and 30/11/2001 along with annexure for copies of purchase contracts. Therefore, I hold that the respondent assessee have sufficiently disclosed the facts to the Revenue. - Decided against the revenue
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2016 (5) TMI 1044 - CESTAT MUMBAI
Refund claim - excess duty paid as regards to abatement - refund claim sanctioned but credited to consumer welfare fund under the provisions of 11B(2) of Central Excise Act, 1944 - No evidence produced regarding unjust enrichment - Held that:- it is found that appellant had submitted detailed reply along with various documents and explanation of documents. In the Order-In-Original, the adjudicating authority credited the sanctioned refund amount to the consumer welfare fund only on the basis of judgments in cases of Beckon Electronics Pvt. Ltd Vs Commissioner of Central Excise, Rajkot [2004 (2) TMI 431 - CESTAT, MUMBAI] and CCE Mumbai Vs Allied Photographics India Ltd [2003 (11) TMI 91 - SUPREME COURT OF INDIA] whereas the Adjudicating authority did not whisper anything about the documents submitted by the appellant. This clearly shows that no verification in respect of unjust enrichment was carried out by the Adjudicating authority.Therefore, the impugned order is set aside and appeal is allowed by way of remand to the Adjudicating authority. The appellant shall produce all the documents necessary to verify that incidence of refund amount has not been passed on to any other person. - Appeal disposed of by way of remand
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2016 (5) TMI 1043 - CESTAT MUMBAI
Recovery of interest and imposition of penalty - Rule 25 and Section 11B respectively - Differential duty has already paid - Assessee have not followed the procedure of provisional assessment as laid down under Rule 7 of the Central Excise Rules, 2002 - No malafide intention as the assessee was discharging duty under Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules 2000.
Held that:- the assessable value of their goods is to be determined under Rule 8 of the Central Excise Valuation Rules, 2000, according to which the valuation has to be done on the basis of 110% of the cost of production and the cost of production can be derived on the basis of CAS4. The CAS4 can be made only after completion of the financial year when the Balance Sheet is finalized. In such a situation, it cannot be expected from the assessee to deposit the correct duty at the time of clearance of the goods. There is no dispute that the assessee have been clearing the goods on payment of duty and they were supposed to pay the differential duty on the basis of the CAS4. The assessee have without contesting the duty liability, paid the duty which has been confirmed and appropriated in the adjudication order. The duty was confirmed under Section 11A of the Act. As per Section 11AB when the duty is determined under Section 11A interest is required to be paid consequently under Section 11AB. Therefore in the present case also the assessee is liable to pay the interest.
As regards penalty, this is not the case of clandestine removal or intentional avoidance of payment of duty. The differential duty arises only for the reason that as per the valuation under Rule 8 of the Rule the final value of the goods cannot be determined at the time of clearance. Therefore, the lower authority has rightly dropped the penalty and the same is maintained. - Appeals dismissed
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2016 (5) TMI 997 - CESTAT KOLKATA
Recovery of interest - excess inadmissible Cenvat Credit inappropriately taken was reversed as soon as issue brought to the notice. Also no interest is payable as Cenvat Credit Rules prevalent at the relevant time never prescribed payment of interest - Held that:- it was observed by the department that Appellant has taken credit on Ingot Moulds in the very first year to the extent of 100% when as per Rule-4 of the Cenvat Credit Rules credit was required to be taken in the first year to the extent of 50% of the total credit admissible on capital goods. Appellant paid the excess credit taken but argued that remaining credit of 50% was admissible to them in the next financial year. It is correct that Appellant was eligible to take 50% Cenvat Credit on Ingot Moulds in the next financial year but taking of 100% credit in the very first year was improper in view of the Cenvat Credit Rules. Appellant has utilized credit of ₹ 1,44,669/- in the very first year which was paid on being pointed out by the department. Appellant has, therefore, utilized the amount of ₹ 1,44,669/- from the date of taking Cenvat Credit till it was reversed/paid. This act of utilizing this amount without the authority of law, will attract interest of ₹ 6,759/- as calculated by the Adjudicating Authority.
Imposition of penalty - Rule 15(1) of the Cenvat Credit Rules, 2004 - Held that:- for violation of the Cenvat Credit Rules and taking excess credit in violation of Cenvat Credit provisions a penalty of ₹ 2000/- imposed upon the Appellant is justified and appropriate. - Decided against the appellant
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2016 (5) TMI 996 - CESTAT NEW DELHI
Recovery of Cenvat credit - sponge iron not used in the manufacture of final product as they were lost in fire - received amounts through insurance claim against loss due to fire - Held that:- no evidence or verification has been discussed to support the case of denial of Cenvat credit by the Revenue. As per the statutory records of raw materials and as per claim of the appellant the said raw materials have been used for intended purpose. The compensation of insurance company is for damage to the quality of the raw material. Though the appellant did not produce any documentary evidence to substantiate such claim it is also a fact that Revenue did not produce any evidence of total loss of the said raw materials except referring to the claim and payment with reference to insurance. In the absence of categorical assertion of total loss with evidence, the statutory records maintained by the appellant are to be relied upon. The impugned order is not sustainable and set aside. - Decided in favour of appellant
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2016 (5) TMI 995 - CESTAT KOLKATA
Imposition of penalty - Rule 25 (1) (a) and (d) of Central Excise Rules, 2002 - Availed value based SSI exemption under Notification No. 8/2003-CE dated 1/3/2003 - Appellant deposited entire amount of short levy alongwith interest as soon as mistake was pointed out - Held that:- there is nothing on record to suggest as to why appellant was under the impression that SSI benefit under Notification No. 8/2003-CE was admissible to them during the financial year 2009-2010. Only the appellant was aware that value of clearances during the financial year 2008 & 2009 have crossed ₹ 4.00 crores and that appellant is not eligible to SSI exemption during 2009-10. By not discharging the appropriate Central Excise duty, the Central Excise Rules have been violated as per the penal provisions contained in Rule 25 (1) (a) & (d) of the Central Excise Rules, 1944. The conduct of the appellant by not resorting to payment of Central Excise duty during the relevant period indicates intent to evade Central Excise duty which could have escaped had it not been detected by departmental officers. Therefore, the provisions contained in Section 11A (2B) of the Central Excise Rules, 1944, applicable at the relevant time were not applicable to the case of the appellant. At the same time it is observed that penalty imposed by the lower authorities is not equivalent to the 100% of the duty sought to be evaded by the appellant. Penalty imposed is roughly 25% of the duty sought to be evaded and is justified. - Decided against the appellant
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2016 (5) TMI 994 - CESTAT NEW DELHI
Confiscation in lieu of redemption fine and imposition of penalty - raw material, semi-finished goods and finished goods available inside the premises, not fully accounted for - Small scale unit involved only in drawing of copper wire, claiming small scale exemption under Notification No. 8/2003-CE dated 01/3/2003 - Held that:- before seizure it is necessary to have a prima facie opinion regarding dutiable nature of the goods. The appellant was not registered with the Department. The point of their liability to Central Excise duty has not yet been established. Further, it is not clear as to which of the private records recovered were scrutinized and compared with the physical stock of various goods seized after the search of the premises. As such, it would appeared that the confiscation of the goods without even ascertaining the dutiable nature of the goods is not sustainable. Since the penalty followed on such confiscation, the same also cannot be sustained. - Decided in favour of appellant
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2016 (5) TMI 993 - CESTAT NEW DELHI
Correctness of confirmation of recovery of an amount as duty - Rule 3(5A) of Cenvat Credit Rules, 2004 - Waste and scrap of Iron and Steel cleared - Scrap items have emerged during the miscellaneous construction activity inside the factory and on these items credit was never taken as capital goods - Held that:- I find that to counter the categorical assertion of the appellant that these scrap materials were not connected to any capital goods on which credit has been availed no enquiry or finding has been recorded by the lower Authorities. To apply above-mentioned Rule, it is necessary to give a finding that the capital goods on which the credit was availed are cleared as waste and scrap. Such assertion with supporting evidence is not available in the impugned order. Accordingly the same could not be sustainable. - Decided in favour of appellant
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2016 (5) TMI 992 - CESTAT MUMBAI
Extended period of limitation - Demand of consequential duty and imposition of penalty - Denial of discount - Non-compliance of prescribed condition of Notification No. 245/83 - Appellant while claiming the discount of the price list have withheld vital information in as much as they have not submitted the documents showing the medicines has been specified in the DPCO 1987 and not declared at the footnote of the price list that the medicines figured in DPCO - Held that:- Member (J) found that there is no suppression of the fact on the part of the appellant in as much as they have correctly declared all the details required in their price lists. Therefore it was only normal period of one year available to the department to re-open the approval of price list which the department failed to do so and therefore entire demand raised for the extended period is time barred.
Member (T) held that in absence of evidence to substantiate the claim that the prices are approved under DPCO, the assertion made on the price list submitted to revenue under Central Excise Law amounts to mis-declaration with intent to fraudulently avail the exemption. Therefore, the extended period of limitation has been rightly invoked.
Difference of opinion - The Registry is directed to put up the file before the Hon'ble President to resolve the issue, by reference to a third Member.
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2016 (5) TMI 991 - CESTAT KOLKATA
Valuation with respect to deductions/additions of Bank charges, Interest in Excess of CSD, Advertisement & Sales Promotion, Below the line expenses (BTL) & interest on Trading and quantification of duty - Cigarettes and smoking mixture - assessments were kept provisional due to pending post manufacturing expenses (PME) - excess recovery of amounts by wholesale Dealers a part of which was also reaching the appellant.
Held that:- it is observed from the case records that issues of valuation dispute relating to Bank charges, Interest in Excess of CSD, Advertisement & Sales Promotion, Below the line expenses (BTL) & interest on Trading have been decided by Jurisdictional Adjudicating authorities at Bangalore, Parel, Saharanpur & Kidderpore factories in the light of ratio laid down by Apex Court . It is submitted by the Advocate of the appellant that orders passed by the above adjudicating authorities have been accepted by the department on these deductions/additions and also the method of quantification. This fact can be verified by Adjudicating authority of Munger factory and if what is stated by the Learned Advocate of the appellant is found to be true then the same ratio laid by other jurisdictional adjudicating authorities has to be followed by AC/DC in charge of Munger factory, including the method of quantification of differential duty. This bench has not made any observations on the merits of the case. The same has to be decided by the Adjudicating authority on the basis of orders passed by adjudicating authorities at Bangalore, Parel, Saharanpur and Kidderpore factory and also the ratio laid by Apex Court on these deductions. - Appeals allowed by way of remand
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2016 (5) TMI 990 - MADRAS HIGH COURT
Ineligibility for availment of Cenvat credit and imposition of penalty - Goods sent to the job-worker without payment of duty - not received back before the expiry of 180 days therefore paid duty - Held that:- there is no dispute that the amount paid by the manufacturer on capital goods sent to the job worker, was duty. As a consequence, a recipient of the goods was entitled to avail the duty paid as credit. However, the entitlement under Rule 4(5)(a) is restricted only to a period of 180 days. Since the job worker did not return it within the period stipulated, the manufacturer reversed the Cenvat credit and raised revised invoices upon the job worker and the Tribunal thought there was nothing wrong. The fact remains that duty has been paid and the Cenvat Credit is claimed only once. Therefore, the twin components that are required to be satisfied are satisfied in this case. Hence, nothing found wrong with the order of the Tribunal. - Decided against the revenue
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2016 (5) TMI 940 - CESTAT NEW DELHI
Refund claim - made by debit entry in their RG-23A Pt. I - Duty deposited under protest - Held that:- the Revenue has nowhere given any details as to how the decisions relied upon by the Commissioner (Appeals), which involve the same legal issue, are not applicable to the facts of the case. As regards the Tribunal decision in the case of CCE, Aurangabad vs. BCL Forgings Ltd. [2005 (7) TMI 231 - CESTAT, MUMBAI], which stands relied upon by Commissioner (Appeals), it has been contended that the Department has not accepted the said decision and has filed an appeal before the Hon’ble High Court of Mumbai. However, the Revenue has not been able to brought to our notice any decision of the Hon’ble Mumbai High Court setting aside the said decision of the Tribunal. Similarly, in case of the Hon’ble Gujarat High Court decision in the case of Shree Ram Food Industries vs. Union of India [2002 (9) TMI 646 - GUJARAT HIGH COURT], the Revenue has contended that the said decision is not applicable in as much as in the present case the respondents have voluntarily paid the duty.
Apart from finding that the decisions relied upon by the Commissioner (Appeals) are fully applicable to the facts of the case, it is found that his observations and findings that the debit entry was countersigned by Superintendent (Preventive) and the show cause notice itself mentions that the debit was made on pursuance of the officers of the Central Excise Division, nowhere stands countered or rebutted by the Revenue. Commissioner (Appeals) order is upheld - Decided against the revenue
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2016 (5) TMI 939 - CESTAT MUMBAI
Period of limitation - Refund claim - paid excess duty on the removal of input - formal refund application was filed by the appellant after one year from payment of the excess duty - Held that:- the appellant right from 15.6.2009 was continuously making the correspondence with the department regarding the refund of the re-credit of the same amount of ₹ 96,122/-. Therefore, the legitimate claim of refund stand made on 15.6.2009 itself even though the formal refund application was filed subsequently, therefore the refund cannot be rejected on the ground of time bar. Since, the lower authority has rejected the refund on time bar alone he has not verified the aspect of unjust enrichment, I, therefore remand the matter to the original adjudicating authority to decide the refund in accordance with law but the same cannot be rejected on time bar. However, the matters relates to two appeals No. E/141/12 and E/86808/13 being interconnected should also be reconsidered by the original authority.
Demand of duty, Cenvat credit and penalty - Appellant have suo moto taken the recredit for which the refund claim was also filed - Held that:- the matters relates to two appeals No. E/141/12 and E/86808/13 being interconnected should also be reconsidered by the original authority. Therefore both these appeals are also remanded to the adjudicating authority for deciding afresh on the basis of the decision taken on the refund matter. If the refund is sanctioned the demand and penalty in appeal No. E/141/2012 will not survive. Consequently, the appropriation of the said amount done from sanctioned refund claim shall also not be maintainable. - Appeal disposed of by way of remand
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2016 (5) TMI 938 - CESTAT NEW DELHI
Valuation - Sale through dealers - short payment of central excise duty by adopting much lower price than the stipulated by the legal provisions for sale of goods to two of their dealers - Revenue contended that two dealers, who supplied items to UPRNN have realized much more amount than what they paid to the main respondent (the manufacturer). Also there are certain instances of receipt of payment directly by main respondent from UPRNN and such receipt being much higher than the price at which the goods were subjected to tax - Held that:- in the absence of any extra commercial relationship between the dealers and the main respondent, there can be no reason to allege undervaluation on this ground alone. Also it has been stated that the direct payments were as per the advice of the two dealers and by itself will not establish under-valuation of the goods. Therefore, we find no verification on method of transactions have been made at UPRNN side to link -up the possible dealings of the main respondent directly with UPRNN and to establish the role of SJT and SJE being mere dummies in these transactions and there is nothing on record warranting interference with the said findings. - Decided against the revenue
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2016 (5) TMI 937 - CESTAT AHMEDABAD
Entitlement of Cenvat credit - Returned goods - Rule 16 - Respondent neither maintained separate records nor could establish that the same were processed and returned to the same customer or sold to others - Held that:- the Respondent recorded receipt of the goods which is not disputed by the Department. Also they manufactured final product which is recorded in RG 1 register. Therefore, there is no reason to deny the CENVAT Credit. - Decided against the revenue
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2016 (5) TMI 936 - CESTAT NEW DELHI
Denial of claim for exemption on electric cables were supplied for river water pump house at project for drawing water from Godavari river - Notification No. 3/2004-CE dated 8.1.2004 - Revenue submitted that the Vemagiri Power Generation Ltd. was set up for the generation of power which is not entitled for said exemption - Held that:- the electric cables were supplied for river water pump house at project for drawing water from Godavari river. The water is treated and used for the purpose of power generation. The required certificate from Collector, Godavari Distt. has been submitted. Setting up of water supply plant is for the intended purpose covered by the terms of the notification. The explanation only shows the inclusive scope of the water supply plants. Therefore, the impugned order passed after detailed examination of all the relevant points, can not be faulted. - Decided against the revenue
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2016 (5) TMI 898 - CESTAT AHMEDABAD
Demand of differential duty - Incorrect determination of assessable value of finished goods - failed to include the cost of drawing and design charges in the assessable value of the Seamless Rings - Appellant contended that after this Tribunal remanded the matter to the adjudicating authority they had filed a refund clai seeking refund of the duty deposited pursuant to this Tribunal's Order in disposing their stay application.
Held that:- pursuant to this Tribunal's Order refund has been allowed by the Asst. Commissioner, albeit a pre-deposit refund, but, on scrutiny of the fact relating to drawing and design charges attributable to machined and unmachined rings. It is found that the Assistant Commissioner's order sanctioning refund on the same issue was not before either of the authorities below; thus, we are of the opinion that the matter be remanded to the Adjudicating authority for reconsideration of all issues afresh taking into consideration all the evidences placed by the Appellant before the Assistant Commissioner while claiming the refund, the evidences now produced before this Tribunal, and the evidences that would be produced during the course of denovo proceeding. - Appeal allowed by way of remand
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