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Central Excise - Case Laws
Showing 101 to 120 of 253 Records
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2016 (7) TMI 985
Cenvat Credit - Duty paying documents - invoices issued by the sister unit - Invoices do not contain all the prescribed particulars required in terms of Rule 9(2) of the Cenvat Credit Rules, 2004. - Held that:- In any case, there is no dispute about the duty paid nature of imported goods, which they have received and used in the factory for manufacture of final products. The case laws cited by the appellant support the view that credit would not be denied on the ground that the document does not contain all the particulars required to be contained under the rules, if the documents contain details of the payment of duty, description of the goods, assessable value, name and particulars of the factory of the receiver.
The Chartered Accountant’s Certificate obtained and furnished by the appellant to the Commissioner also convinces us of the fact that the total cenvat credit taken by both units did not exceed the CVD paid in respect of the bills of entries under which the supplier unit imported the goods. Accordingly, we have no hesitation in concluding that the appellant is entitled to cenvat credit and consequently we set-aside the impugned order. - Credit allowed - Decided in favor of assessee.
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2016 (7) TMI 984
SSI exemption - procedural conditions of Notification No.9/2003-CE, dt.01.03.2003, for the period March 2004 and April 2004 to June 2004 not fulfilled - Held that:- A plain reading of the said notification, particularly the condition in clause 2, it is clear that the assessee-manufacturer requires to exercise their option to avail exemption under this notification i.e. to pay duty at 60% of the normal rate of duty at the beginning of the financial year itself and the option once exercised, cannot be changed in the same financial year.
The said condition 2 cannot be designated as a mere procedural one and to avail the benefit of the Notification need not be fulfilled. - non-fulfillment of the said mandatory condition would dis-entitle the Appellant in availing the benefit of the SSI exemption notification no. 09/2003-CE dt.01.03.20003. However, we find that the Appellants had recorded all facts in their statutory records and the demand has been issued for the normal period. Thus, in our view, imposition of penalty of ₹ 1.00 lakh in the circumstances of the case, appears to be too harsh. - Decided partly in favor of assessee.
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2016 (7) TMI 983
Maintainability of writ petition - alternative appellate remedy - demands of excise duty and customs duty - petitioner submitted that, (i) the Commissioner acted without jurisdiction; (ii) Although the petitioner had responded to the show cause notice dated October 7, 2013 by submitting a detailed written reply, the Commissioner observed that the petitioner had failed to respond;The petitioner was not asked to show cause notice under section 114A of the 1962 Act and by imposing penalty thereunder, it was practically condemned unheard.
Held that:- The argument of Mr. Roy, insofar as the jurisdictional point based on notification dated September 16, 2014, prima facie appears to be sound. There is no stipulation in the notification dated September 16, 2014 that any show-cause notice issued prior thereto by a commissioner of a particular region shall be taken to its logical conclusion by such commissioner even though on and from the date of the notification, the jurisdiction of the commissioner might suffer a change. In order to encourage the Bench to go ahead and entertain the writ petition based on the point of error of jurisdiction, the petitioner was required to satisfy the Bench that the error of jurisdiction attributed to the Commissioner, Durgapur Commissionerate is clear, conspicuous and obtrusive. Unfortunately, in its pursuit to satisfy this Bench the petitioner has miserably failed and hence, no exception can be taken to the impugned order by reason of the plea raised by Mr. Sen at least at this stage.
It appears from paragraph 55 of the writ petition that presentation of this writ petition has been occasioned to avoid the pre-deposit that is required to be made by the petitioner in terms of section 35F of the 1994 Act. The petitioner ought not to be permitted to abandon the machinery for escaping payment as envisaged in the statute, and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when the remedy open to him by an appeal to the Appellate Tribunal is adequate and efficacious.
The writ petition is not entertained and stands dismissed, without costs.
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2016 (7) TMI 982
Rebate claim - export of less quantity of goods - natural loss of goods in transit - The applicant claimed that the difference in quantity cleared from the factory and that exported was due to loss of goods occurred on account of moisture content and transportation handling losses subsequent to clearance from factory. - Held that:- In this regard, Government notes that the applicant could not cite any applicable provisions, where such loss subsequent to clearance from the factory for the impugned goods is allowed under the relevant provisions of the Central Act and Rules thereof. In absence of any such provision for loss of goods on account of moisture loss and fixing of any percentage loss for the purpose, Government finds no ground to interfere with the order to hold as inadmissible the rebate of duty paid over and above actual quantity exported.
Further, Government notes that the applicant has failed to declare the moisture content in the goods at the point of taxation viz. the clearance from the factory of export. Hence the lower authorities have rightly observed that any such exercise to determine moisture loss or to argue that the difference in quantity is due to moisture loss is futile. In any case it is a fact on record that the goods have been short shipped for whatever reason and as per provision of law rebate of duty cannot be allowed on the quantity of goods which have not been exported. - Decided against the appliance.
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2016 (7) TMI 981
Condonation of delay in filing revision application - Availing duty drawback while getting rabte/ refund of duty paid on export of goods - Applicants submit that the exporters are eligible for "Duty Drawback" on inputs used in the manufacture of export goods if the same is covered in the Customs & Central Excise Duty Drawback Rules 1995 at the rate prescribed in the drawback schedule. They are also eligible for "Rebate of duty paid on the final products" as these are the two sets of incentives covered under Rule 18 of Central Excise Rules 2002. - Held that:- Government observes that the original authority sanctioned the rebate claims. The department filed appeal before Commissioner (Appeals) on the ground that as the applicant has availed drawback, allowing rebate would amount to double benefit. Commissioner (Appeals) allowed the department's appeal. Now, the applicant has filed this Revision Application on grounds mentioned in para (4) above.
The applicant has erred in its contention that as they had posted the application on the last day of the stipulated 3 months period, no condonation of delay is required. The applicant has also failed to give any documentary evidences to justify that there were sufficient cause, which prevented them from filing Revision Application in stipulated time in support of their claim for the delay in filing of the Revision Application. - Revision application rejected - Decided against the applicant.
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2016 (7) TMI 898
Cenvat Credit / Modvata Credit - purchase of tray casting as capital goods - Held that:- Once it is not in dispute that the petitioner is entitled to the benefit of the modvat credit on the eligible capital goods, namely, tray casting in the present case, as was clarified even by the department by issuing circular No. 276/110/96-TRU dated 2.12.1996, the denial thereof to the petitioner is totally illegal. Even if the petitioner had failed to refer to the circular at the time of hearing of the appeal before the Tribunal, in fact, it was the duty of the department itself to have taken care of the circular and not indulge any party in unnecessary litigation, as even the facts suggest that very initiation of the proceedings against the petitioner to deny the benefit of modvat credit was after the circular had already been issued, which entitled the petitioner to the benefit of modvat credit. - the writ petition is allowed.
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2016 (7) TMI 897
Clandestine removal of goods - tribunal had set aside the demand - Held that:- it is evident that the Tribunal has discussed the evidence on record in detail and has based its conclusions upon findings of fact recorded by it upon appreciation of the evidence on record. Having regard to the evidence which has come on record as discussed hereinabove, in the opinion of this court, it is not possible to state that the findings recorded by the Tribunal are in any manner contrary to the record of the case. Though the learned counsel for the appellant have assailed the impugned order on various grounds, they have not been in a position to dislodge the findings of fact recorded by the Tribunal after appreciating the evidence on record.
Under the circumstances, the view adopted by the Tribunal being a plausible view and the impugned order passed by the Tribunal being in consonance with the evidence on record, it cannot be said that the findings recorded by the Tribunal are in any manner perverse. It, therefore, follows that in the absence of any perversity in the findings of fact recorded by the Tribunal on an appreciation of the evidence on record, even if on the same set of facts, it was possible for this court to take another view, the same would not give rise to a question of law, much less, a substantial question of law, warranting interference. - Decided against the revenue.
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2016 (7) TMI 896
Extended period of limitation - Suppression of facts - Demand based on subsequent department audit - Cenvat Credit - input services - credit of service tax availed on construction service of staff quarters, school building and hospital building during 2008-09 to 2010-2011 - Nexus with manufacturing activity - Held that:- Even if it is so, if the appellant take credit, which is disputable, that by itself, will not form basis for invoking fraud, etc. Further, two different audits have been conducted. Initially, certain service tax credits for the year 2008-09 were sought to be denied. Thereafter, based on another audit report, further service tax credits were sought to be denied which covered the said period also. The earlier demand was on the maintenance of these buildings whereas the latter demand was on construction of these buildings.
The credits taken by the appellants were reflected in the statutory records. If such credits were not available in the records, the question of their being pointed out by the audit does not arise. Further, ld. Commissioner (Appeals) examined the question of time bar with reference to time period between the knowledge of the department and issue of demand and held that knowledge of the department is not relevant to decide the relevant date. As mentioned earlier, the demand for the period 2008-2009 to 2010-2011 has been issued on 10.12.2012.On this basic fact, which is not disputed, the time bar has to be applied. No tenable reason has been recorded by the lower authorities for invoking extended period of demand in this case.
In the present case, the appellant availed credits under the belief that these are rightly eligible to them. No element of fraud or suppression or mis-statement could be brought out by the Revenue in the present case. - Demand set aside - Decided in favor of assessee.
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2016 (7) TMI 895
Cenvat Credit - eligible input services - Insurance on Plant & Machinery - Courier Services - Royalty Charges - Credit taken on ISD invoices - Held that:- The period of dispute is post April 2011 and it is relevant to state that the words "procurement of inputs, accounting, auditing, financing" were a pact of definition of "input service". Without courier, it is not possible for the invoices to be despatched from one place to another. The denial of credit on the courier service is therefore erroneous and is accordingly set aside.
Cenvat credit on the input services on the amount paid towards Royalty charges as eligible for credit and is used by the manufacturer is in or in relation to the manufacture of the final products.
Credit taken on ISD invoices - The marketing office work towards the objectives such as revenue generation, cost reduction or risk mitigation of the units engaged in the manufacture and clearance of the final products. - There is no finding nor an allegation that these conditions stand violated and accordingly, the credit taken by them is in order.
Credit allowed - Decided in favor of assessee.
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2016 (7) TMI 894
Claim of refund - duty was paid under protest or not - unjust enrichment - amount was not recovered from the customers - Held that:- in view of the Chartered Accountant Certificate, payment of duty under protest, reflection of excess duty as receivable in the balance sheet and the certificates of the buyers are conclusive factors to examine the scope of the unjust enrichment and the Revenue having not rebutted the said evidence - Refund allowed - Decided against the revenue.
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2016 (7) TMI 893
Refund claim of excess duty paid - unjust enrichment - manufacture of Cement and Clinker - By Notification No. 12/2012.CE dated 17-03-2012, the rate of duty for cement other than those cleared in packaged form (ie. loose cement was enhanced from 10% to 12%. - Later, a corrigendum to Notification No. 12/2012 was issued as F. No 334/1/2012-TRU dated 22-03-2012 by which proviso was inserted to Sl.No.52. Thus, the rate of duty payable on Sale to Industrial & Institutional Consumers became 12%, same as that of loose cement and not 12% Adv. + ₹ 120/- per Mt. Specific rate. - Pursuant to the Corrigendum, appellant filed refund claim for the excess duty paid.
Held that:- after issuance of corrigendum the excess duty, paid lacks the colour of duty and is merely a deposit - the excess paid is only an amount deposited by appellant, not being duty is not hit by doctrine of unjust enrichment. - appellant is eligible for refund. The appeal is allowed with consequential reliefs, if any. - Decided in favor of assessee.
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2016 (7) TMI 892
Claiming SSI exemption through creating dummy units - clubbing of clearance of different units - Held that:- it is clear that the Commissioner has taken into account all the allegations and contentions and arrived at a conclusion that M/s Andhra Poly Pack is an independent unit and their clearances cannot be Clubbed with that of respondent herein. We have to agree that there is no evidence to establish any mutuality of interest between the two units. - No demand - Decided against the revenue.
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2016 (7) TMI 891
Validity of Confiscation of material under Rule 25 of CER when the appellant is paying duty under Section 3A of the Central Excise Act, read with Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008. - Held that:- The appellant was obligated to explain the licit source of purchase of the packing materials lying in stock. It is evident that the appellant have not made any attempt to explain before the Courts below nor have filed any such explanation before this Tribunal. In this view of the matter, I uphold the order of confiscation of the packing material. So far redemption fine is concerned, I reduce the same to the amount of duty evaded at ₹ 1,42,984/-. As the appellant have himself not removed the excisable goods from the factory of manufacture, I hold that no penalties are leviable under Rule 25 of Central Excise Rules 2002. So far the penalty imposed by Id. Commissioner under Rule 26 of Central Excise Rules, 2002, is concerned, I set aside the same as the same have been imposed without any notice to the appellant and/or opportunity of hearing. - Decided partly in favor of assessee.
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2016 (7) TMI 890
Power of commissioner (appeals) to enhance the penalty - the power of the first Appellate Authority, in Revenue matter, were power of enhancement, is also vested in the Appellate Authority, the powers are coterminous with the adjudicating authority. In other words, what the adjudicating authority can do or could have done, can be done by the Id.Commissioner (Appeals). - Accordingly, we are not in agreement to the Id. Single Member's observation, that no higher penalty could have been imposed by the Id. Commissioner (Appeals), in the appeals filed by the assessee, which were both filed heard and disposed of prior to the filing of the appeals by the Revenue. - there is no error in the orders of the Id.Commissioner (Appeals) - Decided against the revenue.
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2016 (7) TMI 889
Recovery of tax dues of the defaulter - Liability of the auction purchaser of the assets - Held that:- the erstwhile owner, Hans Pharmaceuticals & Chemicals, had not sold the unit directly to the appellant. It was the ‘pickup’ which auction sold the unit in exercise of their statuary power under Section 29 and 30 of the State Finance Corporation Act. Accordingly I allow the appeal and I also quash the notice dated 24/8/2004, issued by the range Superintendent, Jhansi. The appellant will be entitled to refund of the amount of ₹ 10 lakhs (Rupees Ten Lakhs) deposited under the Interim Order of the Honourable High Court. Thus the appeal is allowed with consequential benefits. - Decided in favor of appellant.
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2016 (7) TMI 888
Demand of duty - Pan Masala Packing Machines (Capacity Determination Collection of Duty) Rules, 2008 - period from 05.06.2012 to 29.06.2012 - Held that:- the duty for the period 28.06.2012 to 30.06.2012 was payable by 05.07.2012 in terms of 3rd proviso to Rule9 of the said Rules. In the circumstances, there is no delayed payment of duty and consequently no liability to pay interest as the assessee in this case paid the duty of ₹ 3,60,000/- on 29.06.2012 for the period 28.06.2012 to 30.06.2012 and also no penalty is levied either as there was no delay in discharge of appropriate duty. - demand set aside - Decided in favor of assessee.
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2016 (7) TMI 887
MRP Based duty u/s 4A or transaction value u/s 4 - bulk supply of malted milk food, malted food and malt extract powder etc. - sale of rejected lot to other customer - Held that:- the issue is no longer res-integra, as the revenue have accepted that in case of bulk sale made by the appellant, without affixing MRP to the institutional customers and sale of rejected lot to other customer on as is where is basis the provisions of Standards of Weight & Measurements Act, 1976 or the Legal Metrology (Packaged Commodities) Rules, 2011, are not applicable and accordingly, the appellants have rightly assessed the duty under the provisions of Section 4 of the Act in case of clearance to institutional consumer in bulk sale packages not meant for retail sale. - Decided in favor of assessee.
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2016 (7) TMI 871
Review petition against the order [2015 (9) TMI 356 - SUPREME COURT] - Clandestine manufacturing and removal of goods - dummy job work units - fictitious invoices showing much lower quantities/value than the actual - Held that:- On the aforesaid basis, normal order could have been to remand the case back to the Commissioner. However, immediately after the afore quoted portion, this Court did not do so only on the ground that the tax effect was minimal. In this review petition, the review petitioner/assessee has successfully demonstrated that the tax effect is not minimal. In fact, it is in the neighbourhood of ₹ 27 lacs and with interest and penalty the amount may be much large.
Having regard to the above, we allow this review petition to the limited extent by substituting the last two paragraphs of the order with the following paragraph:
“The appeals are allowed except that only for the limited purpose of deducting the job work got done from outside parties from total clearances and for redetermining the liabilities on that basis, the matter is remanded back to the Commissioner of Central Excise, Rajkot. This exercise may be completed within a period of six months after affording proper opportunity to the respondent.”
The review petition is disposed of in the aforestated terms.
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2016 (7) TMI 870
Demand of duty - seeking permission to cross-examine two of the persons from whom statements have been recorded, which appears to be the basis for issuance of the show cause notice dated 02.01.2007 - violation of principles of natural justice - whether the authority could have proceeded to adjudicate the matter and pass the final order, without acceding to the request made by the petitioners for cross-examination of two of the persons, from whom statements were recorded by the department.
Held that:- rom paragraph No.8 of the impugned order it is seen that the officer has proceeded to adjudicate the matter by recording that the Consultant, who appeared on behalf of the petitioners, had not pressed for cross-examination of the other witnesses. This according to the petitioners is factually an incorrect statement, as the petitioners wanted to cross-examine those two witnesses, since the quantification made in the show cause notice was on the basis of the statements recorded from those witnesses.
The writ petitions are allowed and the impugned order is set aside and the matter is remanded to the respondent for fresh consideration and fresh adjudication shall be made by a different officer, as observed supra and while doing so, the statements recorded from V.Kumaraswamy and S.Padmanabhan shall be eschewed. The petitioners shall appear before the adjudicating authority and co-operate in the adjudicating proceedings by advancing oral and written submissions.
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2016 (7) TMI 869
Condonation of delay - department has filed these revision application 4 days after initial stipulated three months period - Rebate / refund claim - export of goods - the original authority rejected the rebate in toto, on the ground that the applicant claimed simultaneous benefit of rebate and drawback which is not admissible. - Commissioner (Appeals) allowed the appeal by holding that as the respondent availed only Customs portion of drawback, rebate claim is admissible to them.
Held that:- Government finds that the applicant in their application for condonation of delay has in a general manner mentioned that the delay in filing is due to postal delay even though application was serf by speed post and over burdening of their review section as reason for delay in filing the Revision Application. The applicant has failed to give any documentary evidences in support of their claim for the delay in filing of appeal. Under such circumstances, Government is of the considered opinion that onus to show cause for not filing application is on the applicant who has failed to show sufficient cause that prevented him from filing Revision Application within stipulated period of three months. The Revision Application has been made contrary to the provisions of Section 35EE (2) and is, therefore, liable for rejection.
Decided against the revenue.
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