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Central Excise - Case Laws
Showing 81 to 100 of 168 Records
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2016 (5) TMI 897 - CESTAT KOLKATA
Imposition of penalty - Cenvat credit wrongly taken - M.S. Angle, M.S. Channel, G.C. Sheet and Welding Electrodes are used for making support structures for the capital goods - Held that:- there were conflicting judgments regarding admissibility of Cenvat Credit on such items before Larger Bench delivered judgments in the case of Vandana Global Ltd. Vs. CCEx., Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)]. When conflicting judgments with respect to an issue were available then it cannot be said that appellant had malafide intention to fraudulently take inadmissible credit. Accordingly, penalty imposed by the adjudicating authority, and upheld by the first appellate authority, is set aside.
Classification - Copper Bonded Grounding Rods - Held that:- product manufactured by the appellant has undergone specific processes to make the same usable solely and principally for lightning arrester system. Reliance placed by the appellant on the drawback schedule published by the Department and export made by other appellants is not of any help because it is not coming out of the list of other exporters whether any specific processes were also undertaken by those exporters on the “Copper Bonded Grounding Rods” exported. Accordingly, it is held that classification of the goods manufactured by the appellant will be CETH 8538.00 as parts of lightning arrester.
Period of limitation - Demand and imposition of penalty - appellant has exported the entire quantity of “Copper Bonded Grounding Rods” manufactured and would have been entitled to 100% rebate of duty paid on the finished goods - Held that:- there was no reason for the appellant to deliberately mis-declare the classification under CETH 7215.00. Thus, it cannot be said that appellant had any intention to evade payment of Central Excise duty. Demand is, therefore, required to be restricted within the period of one year from the date of issue of show cause notice and penalty imposed upon the appellant under Section 11AC is required to be set aside. - Decided partly in favour of appellant
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2016 (5) TMI 896 - CESTAT KOLKATA
Whether amounts paid under Rule 6(3)(b) of the CENVAT Credit Rules, 2004 can be demanded under Section 11D of the Central Excise Act, 1944 when such amounts paid by the appellant are reimbursed by the Indian Railways Board - Held that:- in view of the decision of Larger Bench in the case of Unison Metals Ltd. Vs. CCE, Ahmedabad -I [2006 (10) TMI 171 - CESTAT, NEW DELHI] which was accepted by the Department as per CBEC Circular No. 870/8/2008-CX dated 16/05/2008, under Section 11D of the Central Excise Act, 1944 with respect to amounts reimbursed to the appellant, equivalent to the payments made under Rule 6 (3) (b) of the CENVAT Credit Rules, is not justified. - Decided in favour of appellant
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2016 (5) TMI 895 - CESTAT KOLKATA
Rejection of refund claim - duty was paid twice, once from cash and again from cenvat credit - Whether suo-motu credit of ₹ 3,46,820/ taken by the appellant on 28/2/2011 was legally correct or appellant was required to file a refund claim under Sec 11B ibid - Held that:- by relying on the decision of Larger Bench of the CESTAT in the case of BDH Industries Ltd. Vs. CCE (Appeals) Mumbai-I [2008 (7) TMI 78 - CESTAT MUMBAI] whose decision was taken by relying upon the ratio laid by Supreme Court in the case of Mafatlal Industries Ltd Vs UOI [1996 (12) TMI 50 - SUPREME COURT OF INDIA], suo-motu credit of duty paid excess / twice can not be taken & a refund claim was required to be filed. However, as the issue was disputable & conflicting views were expressed by the court's penalty imposed upon the appellant is not justified and is set aside.
Period of limitation - Whether “relevant date” for the purpose of calculating period of limitation under Sec 11B of the Central Excise Act 1944 should be calculated from 16/3/2012 (the date appellant paid the amount at the instance of the department) or 31/1/2011 when duty was paid twice by the appellant - Held that:- by respectfully following the ratio laid down by the CESTAT Ahmedabad in the case of Neptune Industries Ltd Vs CCE Ahmedabad [2011 (12) TMI 368 - CESTAT, AHMEDABAD] and Raj Petro Specialties P. Ltd Vs CCE Vapi [2009 (5) TMI 603 - CESTAT, AHMEDABAD], it is held that 'relevant date' for filing the refund claim in the existing facts will be 16/3/2012 and accordingly refund claim was not time barred. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 894 - CESTAT CHANDIGARH
Denied cenvat credit on the evidence as no entry of vehicle no. at ICC, the statement of transporter/suppliers and the expert opinion of NISST - Availed cenvat credit on Bura scrap and furnace oil without actual receipt in their factory premises - Held that:- merely, the vehicles in question were not entered at ICC does not dis-entitle to the appellant to avail cenvat credit on the inputs in question. As the appellant has produced the certificate issued by Excise & Taxation Officer of Punjab certifying that these goods have been received in their factory, therefore, the cenvat credit cannot be denied.
The revenue has also relied on the various statements of supplier/transporters and also relied on the statement of Parveen Kumar Garg of M/s LOT initially made on 25.02.2005. This same was retracted by him on from next date 26.02.2005 which was despatched on 28.02.2005 thereafter, various summons have been issued to Sh. Praveen Kumar Garg but Sh. Praveen Kumar Garg never appeared nor the cross examination of Sh. Praveen Kumar Garg was granted in that circumstances, statement of Sh. Praveen Kumar Garg have no evidentially value in the light of the decision in the case of CCE, Delhi-I Vs. M/s Vishnu & Co. Pvt. Ltd. [2015 (12) TMI 593 - DELHI HIGH COURT]. Some kachaa ledger was also recovered from Sh. Praveen Kumar Garg, the same cannot be relied upon as evidence in the matter as these records have been recovered from third party whose cross examination has not granted to prove the truth, therefore these Kucha Ledger is not admissible as evidence.
It is found that revenue has relied on the opinion obtained from the NISST to the extent that furnace oil is not required for the appellant for operation of their furnace or induction furnace. In fact the person gave the opinion have never visited the factory premises to the appellant and made a general statement. On the other hand, the appellant has produced the certificate issued by the chartered Engineer who has physically visited the factory and stated that furnace oil is required for the running of induction furnace of the appellant. The said chartered engineer was not cross examined by the revenue, on the contrary, he affirmed the contents of the certificate issued by him therefore the said certificate is having evidential value. In the absence of any contrary evidence produced by the revenue, the certificate issued by the chartered engineer who has visited the factory is admissible. Further, I find that during the course of investigation the furnace oil was found in stock of the appellant. The allegation of the revenue that the furnace oil is not required for manufacturing by the appellant but the same was available in the factory premises of the appellant, in that circumstances, the revenue is failed to prove their case by cogent evidence to show that the furnace oil has not required by the appellant. - Decided against the revenue
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2016 (5) TMI 840 - CESTAT MUMBAI
Imposition of penalty - Rule 15(2) of CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944 - Improper Non-reversal of CENVAT credit attributable to the inputs gone into manufacturing of exempted goods - having been paid the amount as per the provisions of Rule 6 along with interest there was no need for visiting the appellant with penalty.
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2016 (5) TMI 839 - CESTAT AHMEDABAD
Demand of short paid duty - Unit closed from January 1998 to March 1998 - Discharged duty under Section 3A of Central Excise Act, 1944 read with Rule 96ZP of erstwhile Central Excise Rules, 1944 - Held that:- since the applicant exercised their option to discharge duty under Rule 96ZP(3), therefore, the period of closure of factory/non-production in our view is immaterial. Therefore, by following the Judgment of Hon'ble Supreme Court in the case of Commissioner of C.Ex. & Customs Vs. Venus Castings Pvt. Ltd. [2000 (4) TMI 37 - SUPREME COURT OF INDIA], wherein it has been laid down that the assessee when exercises option to follow either of the procedures, cannot switch over to the one, beneficial to him, in the same financial year. Therefore, the duty short paid has been rightly confirmed by the Ld. Commissioner and to this extent the order is upheld.
Imposition of penalty and recovery of interest - Held that:- in view of the judgment of Hon'ble Supreme Court in the case of Shree Bhagwati Steel Rolling Mills Vs.CCE [2015 (11) TMI 1172 - SUPREME COURT], penalty and interest under Rule 96ZP ibid cannot be sustained. - Appeal disposed of
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2016 (5) TMI 838 - CESTAT BANGALORE
Demand of duty and interest thereon - Contravention of provisions of Rule 8(3A) - Duty paid through Cenvat credit - Held that:- by following the judgment of Hon'ble High Court of Gujarat in the case of Indsur Global Ltd. Vs. Union of India [2014 (12) TMI 585 - GUJARAT HIGH COURT] where it was held that the Rule 8(3A) is unconstitutional and shall be rendered invalid. Therefore, the impugned order is not sustainable and set aside.
Imposition of penalty - Rule 25 of the Central Excise Rules - Held that:- the penalty can only be imposed on the appellant under Rule 27 of the Central Excise Rules and accordingly I impose a penalty of ₹ 5,000/- (Rupees Five Thousand only) on the appellant for violation of the procedures contained in the Rules. - Decided partly in favour of appellant
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2016 (5) TMI 837 - CESTAT CHENNAI
Job-work - Eligibility of refund claim - Availability of Cenvat credit - Moulds not used in appellant’s factory - Ground of rejection of refund claim is beyond the scope of SCN - Appellant submitted that the SCN is faulty in as much as the applicable rule in this case is 4(5)(b) of Cenvat Credit Rules, 2004 wherein there is no condition of receiving back the moulds within 180 days. The show cause notice wrongly applied rule 4(5)(a).
Held that:- there can be no doubt that the spirit behind the CENVAT scheme which is a beneficial one, would be lost, if a statutory benefit is denied by wrong interpretation of certain procedural provisions which permit the facility so long as the item in question are treated either as inputs or as capital goods. Therefore, the denial of credit is clearly an error. Since the moulds in question are admittedly used by the job workers to whom the appellant had send the same by following the procedure prescribed under the CENVAT Credit Rules, denial of refund of reversed credit is not in order. Therefore, by following the judgment of Hon'ble Bombay High Court as upheld by Hon'ble Supreme Court in the case of CCE, Nagpur vs. Indorama Textiles Limited [2009 (10) TMI 571 - BOMBAY HIGH COURT] and the Tribunal ruling in CCE & C, Daman, VAPI vs. Guala Closures (I) Private Limited [2009 (1) TMI 564 - CESTAT, AHMEDABAD], there is no condition under Rule 4(5) (b) of Cenvat Credit Rules that moulds sent by the respondents has to be brought back within 180 days and failure to do so would render the respondents liable to reverse the Cenvat credit availed on the same. The part of the order rejecting the refund claim is set aside with consequential relief. - Decided in favour of appellant
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2016 (5) TMI 836 - CESTAT MUMBAI
Whether the refund claim can be sanctioned without availability of proof of payment in the shape of Original TR 6 Challan - Appellant paid duty which was acknowledged by the department - Held that:- it is observer that the departmental authority have not verified from their accounts department that whether the payment has been credited in the government account or otherwise, therefore without carrying out such exercise merely in absence of original TR 6 Challan refund cannot be rejected. There are various means of ascertaining the fact of payment of duty i.e. transaction shown in the bank account of the appellant, in the account of government treasury, booking of such deposit in the books of accounts of the appellant etc. From these evidence also it can be ascertained whether the amount of excise duty has actually been credited in the government account or otherwise but no such verification or efforts has done to find out the fact on the basis of above method was carried out therefore only for want of Original TR 6 Challan rejection of the refund claim is not proper. For this reason matter needs to be remanded to the original adjudicating authority to verify payment of duty.
Period of limitation - Refund claim - Duty deposited as pre-deposit at the stage of appeal - Held that:- it is settled legal position that refund will arise only when issue of demand is settled. Since the demand had been confirmed by the Adjudicating authority, unless and until the said demand is set aside either by the Commissioner(Appeals) or Tribunal as the case may be, refund does not become mature. Even if, appellant files refund within the one year from the date of payment, the same is either be rejected on the ground of pre-mature or the same shall be kept pending, therefore there was no purpose of filing refund claim within the one year from the date of payment of duty. In fact duty of ₹ 49 Crores paid as pre-deposit and the same became refundable only after demand is dropped. In the present case the demand is dropped vide adjudication order dated 16/7/2007 and the refund claim was filed on 17/10/2007 i.e. well within the stipulated period from the date of Tribunal order. Therefore, the issue of time bar is in favour of the appellant in view of the judgment of Hon’ble Supreme Court in case of West Coast Paper Mills Ltd [2004 (2) TMI 680 - SUPREME COURT OF INDIA], therefore the demand is not time bar.
Refund claim - Unjust enrichment - Held that:- duty paid much later than the clearance of the goods i.e. after issuance of show cause notice, therefore it is clear that the incidence of duty was at least not passed on to the customer, to whom the goods were supplied in respect of which duty of ₹ 49 Crores paid by the appellant. Also Revenue could not produce any evidence that the amount of ₹ 49 Crores was recovered by the appellant either from the customers, to whom goods were sold or from any other persons. There is force in the argument of the appellant that in case the price are fixed by the government as per APM, unjust enrichment is not applicable as the duty paid or payable does not influence price fixed by the government. C.A. also has given the certificate to this effect that incidence of duty paid by the appellant has not been passed on to any other persons. Though C.A. certificate alone cannot be basis of proof that there is no unjust enrichment, but in the present case C.A. certificate coupled with fact that duty paid by the appellant appears to not have been collected and the price is fixed by the government as per APM, it prima facie appears that incidence of duty was not passed on by the appellant. However it is observed that lower authority has not properly verified the above aspect therefore the same needs to be re-verified. - Appeal disposed of by way of remand
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2016 (5) TMI 835 - CESTAT MUMBAI
Eligibility for Cenvat credit on inputs - Wire rod - Conversion of wire rod into Copper Coated CO2 Mig Welding Wire - Whether a process of drawing of the wire and amounts to manufacture or not - Held that:- as per Rule 16 of the Central Excise Rules, 2002, it is clear that the assesee is entitle to avail Cenvat credit on the duty paid goods even though the said duty paid goods does not undergo manufacturing process. The only condition is that if the duty paid goods is cleared after process which amounts to manufacture, the assesee is required to pay duty on the transaction value and if the goods are cleared without manufacturing process the duty which required to be paid is equal to the Cenvat credit availed. Rule 16 also holds the duty paid goods as inputs therefore the Cenvat credit is admissible. As per various judgments also it can be seen that the Credit was regularized in case of wire drawing units as per the amendment made in Rule 16 of Central Excise Rules. Even in the absence of specific amendment in respect to the wire drawing unit, the credit was otherwise admissible as per unamended Rule 16 of Central Excise Rules, 2002. - Decided against the revenue
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2016 (5) TMI 834 - RAJASTHAN HIGH COURT
Service of notice - Whether the CESTAT is justified in accepting that the order dated 21.12.2010 was adequately served upon the appellant - no evidence adduced as to whether the post was ever tendered or affixed in the manner provided under sub-section (1) of Section 37 C of the Central Excise Act, 1944 - Held that:- it is obligatory upon the Tribunal to satisfy itself about delivery or tendering of the notice before presuming that the notice was served as per sub-section (2) of Section 37 C of the Act of 1944. No such prima facie satisfaction has been recorded by the Tribunal. - Appeal allowed by way of remand
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2016 (5) TMI 781 - CESTAT KOLKATA
Admissibility of Cenvat credit - Job-work - GTA service tax paid when goods are manufactured by the job worker and cleared on payment of duty from the factory premises of job worker - Cenvat credit taken by the Respondent for the freight paid by them upto the factory premises of job worker while sending raw materials and also freight charges paid by Respondent from the job workers to the Depots of the Respondent while sending finished goods.
Held that:- premises of job worker is the “place of removal” and not the depot of the principal manufacturer, therefore, Cenvat credit of service tax paid by the Respondent upto the place of removal will be admissible. At the same time, service tax paid by the Respondent for transportation of goods from the job workers premises (place of removal) to the Depots of the Respondent has to be treated as services availed beyond the place of removal as there cannot be two manufacturers and two place of removals for the same goods.
Demand - Invokation of extended period of limitation - Rule-14 of CCR, 2004 read with proviso to section 11A(1) of the Central Excise Act, 1944 - Held that:- the matter is of interpretation of provisions of CCR, when a part of the service tax credit has been held to be admissible to the Respondent, therefore, extended period of 5 years cannot be invoked and demand has to be restricted to the normal period of limitation with respect to CENVAT Credit availed by the Respondent for transportation services availed from the factory premises of the job worker to the depot of the Respondents. Also the penalty imposed upon the Respondent under Rule 15(2) of CCR, 2004 read with Section 11AC ibid is not substantiable and is set aside. - Decided partly in favour of revenue
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2016 (5) TMI 780 - CESTAT MUMBAI
Demand of duty and imposition of penalties - under Notification No. 175/86 CE dt 01.03.86 - Clubbing of clearances of appellant with other company - Appellant contended that they have separate factory with machinery and set up and there is no mutuality of interest between them and M/s NTB International and the facts relied upon for confirmation of demands in previous period no more exists - Held that:- once the Appellant concern is alleged to be dummy concern/ fragment of M/s NTB International in that case the demand should not have been proposed against the appellant as in the eyes of the revenue the Appellant has got no independent existence. Thus it is found that the impugned orders suffers from serious infirmity on this count. Once the independent existence of a concern is denied and is held to be dummy concern, in that case the duty could not have been demanded from Appellant which is illegal.
In the instant appeals, in the remand proceedings the demand has again been confirmed against the Appellant whose independent existence has been denied by the revenue. This confirmation of demand against the Appellant itself recognizes their independent existence and thus the demand made by holding the same to be part of M/s NTB international is illegal and not sustainable.
While remanding the earlier show cause notice the Tribunal had directed the adjudicating authority to examine the basis of clubbing for an earlier period. However the adjudicating authority without examining the basis of clearances again confirmed the demand which shows that no fresh enquiries were made to determine as to how the Appellant is connected with M/s NTB and whether the facts show the mutuality of interest between the two. Since the demand was confirmed without examining the actual facts which can lead to clubbing of Appellant with M/s NTB international, we hold that on account of this count also, the demand is not sustainable.
As the Appellant is a partnership firm and M/s NTB international is a Private Ltd. Company and therefore they cannot be clubbed. The adjudicating authority has not considered any of these aspects and confirmed the demand against the Appellant firm by clubbing it with M/s NTB International which is illegal. Therefore, on this ground also the demand against the Appellant is not sustainable.
Therefore, demand against the appellant are not sustainable and are set aside. Also since the demand itself is not sustainable, we hold that the revenues appeal towards imposition of penalty against M/s Polybelt is also not sustainable. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 779 - CESTAT NEW DELHI
Demand of duty - Seizure of 143 M.T. of calcite powder - Classifiable under C.T.H. 3824.90 leviable Central Excise to duty at the rate of 16% ad-valorem - Held that:- it has evident that the Commissioner (Appeals) has noted that the appellant is not seriously disputing the fact that the manufacturing process of their product involved apart from crushing, grinding other process as well such as roasting. The appellant contended that it did not do any roasting at all. The Commissioner (A)’s observation does not dispute that the appellant disputed the same though Commissioner (A) did not regard it to have been seriously disputed. So long as the roasting was disputed, the Commissioner (A) was not justified in assuming that there was roasting without corroborative evidence which doesn’t exist. Resultantly the impugned order becomes devoid of the adequate basis to sustain the classification under CTH 3824.90.
Demand of duty - Willful misstatement/suppression of facts - Held that:- willful misstatement/ suppression of fact has been upheld by the Commissioner (Appeals) essentially on the ground that the appellant did not take registration and clear the goods without payment of duty. In case of CCE vs. Chemphar Drugs Liniments [1989 (2) TMI 116 - SUPREME COURT OF INDIA], the Supreme Court held that something positive other than mere inaction or failure on the assessee's part or conscious withholding of information when assessee knew otherwise is required for invoking extended period. In the case of Continental Foundation Joint Venture Vs CCE, Chandigarh-I [2007 (216) ELT 177 (SC)2007 (8) TMI 11 - SUPREME COURT OF INDIA], the Supreme Court went to the extent of saying that any incorrect statement by itself cannot be equated with willful mis-statement. Therefore, in the light of these judicial pronouncements, we are of the view that the allegation of willful misstatement / suppression of facts is also not sustainable in the present case. Consequently demand pertaining to the period beyond the normal period of one year will also be hit by time bar. - Decided in favour of appellant
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2016 (5) TMI 778 - CESTAT CHANDIGARH
Demand of duty alongwith interest and imposition of penalty - Fraudulent availment of modvat credit on GP sheet which was neither an input nor it was used for the manufacture of OE parts - No positive evidence on record for diversion of the goods GP sheets and procurement of HR/CR sheets - Held that:- this Tribunal on identical issue in the case of Silence Auto vs. CCE, Chandigarh [2014 (6) TMI 306 - CESTAT NEW DELHI], wherein this Tribunal has held that the adjudications are made against the appellants on the basis of surmises and conjectures without any corroborative evidence and in the facts and circumstances of the case the demand is not sustainable. Therefore, by following the same, the credit on GP sheets cannot be denied to the appellants without corroborative evidence. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 777 - CESTAT CHANDIGARH
Clandestine removal of manufactured goods - Demand of duty along with interest and penalty - Evasion of duty - Kachcha slips recovered during investigation which were not signed at all - Some exculpatory and some inculpatory statements were recorded - Denial of cross examination of persons whose statements are inculpatory - Appellant submitted that while manufacturing MS ingots, the appellant consumed electricity 900 to 1000 units for manufacture of 1 MT MS ingots whereas the allegation of clandestine clearance of the goods is considered less than the electricity consumption worked out to 490 units per MT which is not possible in any circumstance.
Held that:- in the absence of any corroborative evidence towards clandestine manufacture and clearance of the finished goods by the appellant. Moreover without verifying the activity of trading undertaken by the appellants on the basis of eye estimation of stock, the demand confirmed in the impugned order are not sustainable. Therefore, the impugned order is set aside. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 746 - CESTAT ALLAHABAD
Demand of duty and imposition of penalty - Rule 25 of CCR read with section 11 AC of the Act - Restriction on utilisation of Cenvat credit as provided under Rule 8 (3A) of CER - Held that:- the issue is no longer res integra as it is evident that Hon'ble Gujarat High Court in the case of Indsur Global Limited Vs. Union of India [2014 (12) TMI 585 - GUJARAT HIGH COURT], the portion of the Rule "without utilising the Cenvat credit" of sub Rule 3(A) of Rule 8 of Central Excise Rules, 2002 as invalid and ultra-vies under article 14 & 19 (1)(g) of the Constitution of India. Therefore, by following the same, the appellant succeeded. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 745 - CESTAT NEW DELHI
Period of limitation - Job-work basis - Demand of excise duty - carrying out the process of lamination on job work basis on the material supplied by Bus Body Builders - Held that:- the period involved in the show cause notice is 1991-92 to March 1995 whereas the show cause notice was issued on 31.7.1996 accordingly entire demand is beyond one year of normal period. On perusal of the records and submissions,it is found that for the purpose of movement of goods from bus body builders to the respondent, manufacture of goods on job work basis , return of goods back to bus body builders and use thereof in the bus body buildings were undertaken in terms of Rule 57F(2) and/or Notification No. 214/86-CE dt. 25.3.1986. In this regard, the bus body builders filed intimation along with undertaking to the Central Excise Authority of job worker. The material was supplied under the cover of Annexure II challan. The said Annexure II challan was pre-authenticated by the Central Excise authorities of the jurisdiction of bus body builders. In the classification list also whereby notification No. 214/86-CE dt. 25.3.1986 was clearly declared.
The jurisdictional excise authority of the body builders despite knowing that the bus body building is exempted, pre-authenticated the Annexure II challans. Therefore entire facts related to the bus body builders and the movement of goods and manufactured of goods under job work was very much in the knowledge of Central Excise authorities of both the jurisdiction therefore we do not see any suppression of fact on the part either of bus body builder or of respondent. Therefore the Commissioner has rightly held the demand as time bar. - Decided against the revenue
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2016 (5) TMI 744 - CESTAT KOLKATA
Eligibility of Cenvat credit - Invoices in which serial numbers are hand-written and not pre-printed - Revenue contended that pre-printed serial numbers on the invoices is a mandatory requirement and hand-written serial numbers will not be acceptable - Held that:- as per Rule 11(2) of the Central Excise Rules, 2002, it is not mandatory that the invoices issued under Central Excise Rules, 2002 should be pre-printed. At the same time it is also observed that under Rule 9(2) of the Cenvat Credit Rules, 2004, Cenvat Credit shall not be denied on the grounds that any of the documents mentioned in sub-rule 1 does not contain all the particulars required to be contained under these Rules. In case there is any discrepancy then the same can be verified from the jurisdictional Central Excise Officer, having jurisdiction over the supplier of the inputs, to ensure that the appropriate Central Excise duty has been paid on inputs.
In the light of the above observations, under the provisions of existing Central Excise Rules 11(2) it is not mandatory to have pre-printed invoices. It is not the case of the Revenue that the duty-paid inputs have not been received by the Appellant and further not utilized in the manufacture of the finished goods. It is now a well settled legal proposition that minor procedural lapses cannot be made the basis for denying Cenvat Credit. Accordingly Cenvat Credit on the basis of invoices having hand-written serial numbers cannot be denied to the Appellant.
Demand and imposition of penalty - Rule 15 of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 - Plastic crates - Appellant argued that no Education Cess was payable when plastic crates and glass bottles were received for the first time on payment of duty for which credit was taken - Held that:- once a stand was taken by the Appellant before the adjudicating authority then it has to be established by the Revenue that Cenvat Credit of Education Cess in fact was taken by the Appellant. By applying the ratio laid down by the Apex Court in the case of Commissioner of Customs vs. Auto Ignition Ltd. [2008 (4) TMI 43 - SUPREME COURT], once an assesse takes a stand that Modvat credit with respect to inputs is not availed, then onus is shifted to the Revenue to establish that credit is taken by an assessee. Accordingly the demand of is not sustainable. - Decided in favour of appellant
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2016 (5) TMI 743 - CESTAT KOLKATA
Job worker - Eligibility of Cenvat credit - Inputs directly purchased and used in the manufacture of goods under job-work - Cleared goods without payment of duty as per the provisions contained in Notification No.214/86-CE - Held that:- by following the various case laws, the Cenvat Credit to the job-worker, on inputs directly purchased and used in the manufacture of finished/intermediate goods, will be admissible even if duty is discharged by the principal manufacturer. - Decided in favour of appellant
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