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Central Excise - Case Laws
Showing 121 to 140 of 253 Records
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2016 (7) TMI 868
Rebate / refund claim - The applicants contended that the declaration made on as ARE-I was clerical in nature and same may be condoned as a procedural mistake. - applicant failed to follow the procedure prescribed under the Notification No.21/2004-CE(NT) dated 06.09.2004 as declared by them at Sl.No.3(b) of the impugned ARE-I - Held that:- Once, it has been certified that exported goods have suffered duty at the time of removal, it can be logically implied that provisions of Notification 21/04-CE(NT) dated 06.09.04 and Notification 43/01-CE (NT) dated '26.062001 cannot be applied in such cases. There is no independent evidences on record to show that the applicant have exported the goods without payment of duty under ARE-2 or under Bond. Under such circumstances, Government finds force in contention of applicant that they have by mistake ticked in ARE-I form declaration and they have not availed benefit of Notification 21/04-CE(NT) dated 06.092004 and Notification 43/01-CE(NT) dated 26.06.2001. In this case, there is no dispute regarding export of duty paid goods.
Simply ticking a wrong declaration in ARE-I form cannot be a basis for rejecting the substantial benefit of rebate claim.
However since it is a matter of fact which requires verification in view of rival claims, therefore, the case is remanded back to the original authority to verify the claim of the applicant that they have not availed benefit of Notification 21/04CE(NT) dated 06109.2004 and Notification 43/01-CE (NT) dated 26.06.2001 and thereafter subject to the satisfaction of the Assistant/Deputy Commissioner the rebate claim may be disposed off accordingly. A reasonable opportunity of hearing may be given to concerned parties.
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2016 (7) TMI 867
Rebate / refund claim - applicant did not submit original and triplicate copy of the ARE-I. - applicant's rebate claim was initially sanctioned by the original authority. The department filed appeal before Commissioner (Appeals) contesting that there were certain discrepancies in documents submitted by the applicant. Commissioner (Appeals) allowed department's appeal. Now, the applicant has filed this Revision Application on grounds mentioned in para (4) above.
Held that:- Government finds that based on documentary evidence it needs to be verified whether the original (white) and triplicate (pink) copies of ARE-I were furnished with the rebate claim or not. If these are-found-to be available on record as having been furnished time-of-filing-the rebate claim and are in order, then the other issues as listed in para 2 above will also be examined for determining the admissibility of the rebate claim by the original authority. - Matter remanded back.
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2016 (7) TMI 866
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 claim for simultaneously claiming two benefits viz input credit and drawback claim, which are not admissible to them. - Commissioner (Appeals) allowed appeal holding that as the applicant availed only customs portion of drawback, rebate in 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 sent 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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2016 (7) TMI 865
Rebate / Refund claim - part of the claim rejected on the ground that applicant has not given any explanation for non-filing of Bill of Lading. - Held that:- the applicant relied on the various judgments regarding procedural relaxation on technical grounds. The point which needs to be emphasized is that when the applicant seeks rebate under Notification No. 19/2004-CE (NT) dated 06.09.2004, which prescribes compliance of certain conditions, the same cannot be ignored. While claiming the rebate under Rule 18 ibid, the applicant should have ensured strict compliance of the conditions attached to the said Notification.
As such, there is no merit in the plea of the applicant that the lapse on their part be considered as procedural lapse of a technical nature which may be condoned. - Claim of rightly rejected - Decided against the assessee.
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2016 (7) TMI 864
Clandestine removal of goods - Department has recovered photocopies of four invoices from some sources - recovery of loose sheets of papers - 26 nos. of Gate Pass Books were recovered by the Department - Held that:- it is imperative that the contents of photocopies should be compared with the contents of their respective originals. In absence of the original documents, the photocopies, not being even secondary evidence, are not admissible in evidence. No enquiries have been conducted by the Department at the buyer's end to verify as to whether they have purchased the goods covered under the alleged photocopy of invoices from the appellant. Therefore, demand of duty in such an eventuality will not sustain.
The onus to prove the involvement of the appellants in clandestine activity with the intent to evade payment of duty has not been satisfactorily discharged by the Revenue, justifying confirmation of the duty demand.
Suspicion however grave cannot replace proof and that the Revenue is not relieved altogether of burden of producing some credible evidence in respect of the facts in issue. In the case in hand, admittedly the Revenue has not brought any tangible evidence to discharge its burden of proof of clandestine removal of goods.
It is an admitted fact on record that the Department has not carried out any physical verification of alleged shortage in stock and the same was based on eye estimation only. Thus, in absence of actual physical weighment of stock of finished goods, the allegation of shortage, in my considered view, is not sustainable.
Demand set aside - Decided in favor of assessee.
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2016 (7) TMI 863
Claim of exemption from duty - supply of instrumental cables to Mega Thermal Power plant - otification No. 6/2006 CE dated 1.3.2006. - Held that:- We find that goods in question are classifiable under Chapter 85 of the Tariff. Under Central Excise Tariff there is no Heading 98.01 which exists in Customs Tariff only. Since the goods manufactured in India can not be classified under 98.01 of the Central Excise Tariff, denial of the exemption on the ground of non-fulfillment of condition of Project Import Regulation is not sustainable particularly when condition No. 86 of the Notification No. 21/2002, dated 1-3-2002 is fulfilled by them.
Appellants are eligible for exemption under Notification 6/2006, dated 1-3-2006 - Decided in favor of assessee.
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2016 (7) TMI 806
Rebate/ refund claim - export of goods - in one case the container number and seal numbers on various export documents were not tallying; in the other case the date of Mate Receipt was 0502.2009 and as per the endorsement of the Custom Officer, the goods had been exported on 05.02.2009 itself whereas the corresponding ARE-I was dated 28.02.2009 and the Shipping Bill was dated 26102.2009. The rebate claim was also rejected for non-submission of BRCs.
Held that:- Government notes that the applicant failed to give any plausible explanation with regard to above said discrepancies in container No. and Seal No. Further, no amendments have been made for correction of Seal No. and Container No. in relevant documents. As such, in absence of any such specific explanation, other submissions of the applicant fall flat to establish that goods cleared from factory have been actually exported.
s regards restricting the rebate to duty @5.15% and to duty paid on FOB value, Government finds that in catena of its judgments, it has been held that rebate is admissible only to the extent of duty paid at the effective rate of duty i.e. 4% in terms of Notification No.4/06-CE dated 01.03.2006 as amended, as applicable on the relevant date on the transaction value of exported goods determined under Section 4 of Central Excise Act, 1944. Ratio of said judgments will be applicable to this case also.
As regards the issue of date of Mates Receipt is concerned, the applicant contended that they have submitted fresh copy of the relevant Mate Receipt which shows the date as 05.02.3009, this aspect may be condoned. In this regard Government finds no merit in the plea of the applicant as nothing is placed on record to show that the fresh Mate's Receipt was produced before the concerned authorities and that suitable amendments were made in the relevant documents viz. ARE-I etc. Therefore, it is rightly held by the lower authorities that goods could not have been exported prior to clearance from factory and rebate is liable for rejection on this ground alone.
Revision application rejected - Decided against the revision applicant.
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2016 (7) TMI 805
Rebate / refund claim - Rule 18 - merchant export - it was revealed that there was no acknowledgement with regard to 'Let Export Order" by the Customs Authority except for an initial of Superintendent of Customs. Further it was also revealed that the ARE-I did not bear any certificate regarding self-sealing as provided under Clause 6 of Chapter 8 (Export under claim for Rebate) of Supplementary Instructions. It also did not contain the declaration to the effect as to who will claim the Duty Drawback i.e. whether by the manufacturer or by the Merchant Exporter.
Held that:- Government notes that the Commissioner (Appeals) has not taken into consideration the full facts of the case in as much as that whether the applicant has claimed drawback on customs portion and rebate on finished goods. Also there is no bar on availment of rebate on duty paid on exported finished goods w.r.t export made under DEPB Scheme. As such, reliance of the Commissioner (Appeals) on above said High Court is not applicable to the present case as the applicant has claimed to avail benefit of Drawback of Customs portion and rebate on finished goods.
Government further observes that another contention of the applicant is that original authority as well as appellate authority have erred while giving their findings that the ARE-I did not bear any certificate regarding self-sealing. They have claimed that the said export goods have been made by the applicant themselves under the examination and sealing of Range Superintendent and Inspector while referring to the ARE-I. In this regard, Government observes that under such circumstances, being a matter of fact, the claim of the applicant for the purposed correlation of duty paid goods with the goods exported needs to be verified on the basis of original documents. - Matter remanded back.
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2016 (7) TMI 804
Rebate / refund claim - Rebate claim on the basis of supplementary invoices - Period of limitation - Rule 18 - The applicant filed rebate claims and the same were sanctioned - Subsequently, because of contractual obligation the applicant received additional amounts due to cost variance from their importers i.e. M/S. RHI AG Vienna and their other affiliated group companies, on which the applicant paid the differential duty with interest. Subsequent to payment of differential duty, the applicant filed two rebate claims.
Held that:- In remand proceedings, the original authority has held that during the material period of export of subject excisable goods that is from 21.03.2002 to 31.012008 on which impugned rebate was claimed, the applicant were only a manufacturing unit in DTA and not 100% EOU and as such, ratio of Government of India order No. 418/2011-CX dated 27.04.2011 is not applicable to this case and the rebate of ₹ 4,36,053/- is in order. In respect of the claim for ₹ 24,04,012 /- only the rebate of ₹ 18,70,080/- was sanctioned and ₹ 5,33,92/- was rejected as time barred.
Government further notes that the applicant is challenging only rejection of ₹ 5,33,932/- in this Revision Application. This issue has already been settled in first round of Revisionary Proceedings vide Government of India Revision Order No. 455-456/11-CX dated 03105.2011. The said Revision Order dated 03.05.2011 has not been reported by the applicant to have challenged before any higher judicial forum. As such, the said Revision Order dated 03.05.2011 has attained its finality. As such, rebate claim of ₹ 5,33,932/- which was held inadmissible as time barred, also attained finality. This issue, which has already attained finality, cannot be raised in this second round of Revisionary Proceedings as the issue is no longer res-integra. The whole case, therefore, becomes infructous and as such, Revision Application cannot be entertained at this stage.
Revision application rejected - Decided against the applicant.
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2016 (7) TMI 803
Rebate / refund claim - input stage credit - inputs used in the manufacture of their export goods - claim was rejected on the grounds that the applicant has manufactured and exported the finished goods before filing the requisite declaration under the said notification and failed to fulfil the condition of the Notification No. 21/2004 -CE(NT) dated 06.09.2004.
Held that:- While claiming the rebate under such Notification No.21/2004-NT dated 06.092004 the applicant should have ensured strict compliance of the conditions attached to the Notification No.21/2004-NT dated 06.09.2004. - Government finds that there is no provisions under Rule 18 of Central Excise Rules 2002 for condonation of non-compliance with the conditions and procedure laid down in the Notification allowing rebate under said Rule. In view of the above discussions, Government finds that the applicant failed to fulfill the above mandatory condition of the said provisions and the condition being mandatory the same is required to be followed by the applicant particularly when the applicant is the beneficiary in the claim of rebate.
Revision application rejected - Decided against the applicant.
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2016 (7) TMI 802
Condonation of delay - Rebate / refund claim - proof of export of goods - discrepancy in ARE-I from - applicant contended that, the customs authorities while signing certificate on triplicate of ARE-I against Part-B inadvertently endorsed wrong shipping bill no. 1044599 which was subsequently was got corrected as no. 1045171 bearing the dated signatures of the customs officers on such corrections made by them dated 07.01.2010.
Held that:- Government finds no merit in the contention of the applicant regarding filing of appeal before the wrong forum due to incorrect advise of their Counsel, as the notes of guidance of the impugned Order-in-Appeal clearly mentions where appeal would lie in such cases. Also the applicant has failed to place on record any evidence of having filed an appeal in CESTAT or copy of direction from CESTAT. Government, therefore cannot consider exclusion of time spent before CESTAT for purpose of condonation of delay in filing Revision Application.
Government observes that despite specific directions, applicant failed to file Revision Application promptly and the above reason for delay appears to be very vague, unclear and an afterthought. Under such circumstances, Government is of considered opinion that the applicant has clearly failed to show sufficient cause which prevented them from filing Revision Application within the prescribed time limit under Section 35 EE. As such, the applicant's application of condonation of delay is liable for rejection in view of aforesaid discussion.
Delay not condoned - Revision application rejected.
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2016 (7) TMI 801
Cenvat Credit / MODVAT Credit - capital goods - diverting the steel items for non-manufacturing operations like fabrication, maintenance of structures, etc., and in manufacture of goods exempted from duty. - Held that:- Undeniably steel pipes are an essential/integral part of T.G. set without which the T.G. set cannot be put into use. T.G. sets would fall under the category of capital goods as 'generating sets' are expressly mentioned in the definition. - Credit allowed - Decided against the revenue.
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2016 (7) TMI 800
Valuation - bifurcation between the value of the goods into (i) CPU and (ii) HDD and there by discharging payment of central excise duty only on the former without taking into account value of the latter. - The main defence raised by assessee against the allegations is that separate invoices were issued for the bought out items which were not manufactured by them, but were only supplied by them to customers. They did not avail Modvat credit on bought out items.
Held that:- Most of the judgments placed before us by the appellant are regarding the issue whether the software is includable in the assessable value. The issue in the case being entirely different we do not consider it necessary to discuss them. At the cost of repetition, it has to be stated that the appellant was clearing computer system/a whole unit as is seen from the illustration in the show cause notice. Though appellants contend that peripherals were bought out items assembled in the factory, and then cleared as a computer unit, there is no iota of evidence to establish how the items from their trading premises was transferred to manufacturing premises. So also, there is no satisfactory explanation for insisting upon the customers to place split orders on two premises.
Demand of duty confirmed - however penalty reduced. - Decided partly in favor of assessee.
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2016 (7) TMI 799
Manufacture - fabricated structure - classification - fabricated structures like purlins, monorails, beams, girders, columns, bracings, platforms, cable ends, etc. - Held that:- the steel structures were undeniably fabricated at site, by assembling them piece by piece, the structure came into existence as they were erected at site and as correctly held by adjudicating authority, the structures fabricated are fixed to the earth. - Demand set aside. - Decided against the revenue.
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2016 (7) TMI 798
Cenvat / Modvat Credit - Manufacturing of dutiable and exempted goods - maintenance of separate records - it was observed by the Central Excise Officers that they availed modvat credit in respect of inputs namely 'cullet' and 'other waste of glass' falling under Tariff Item No. 7001.10 and used the same in the manufacture of final products which were chargeable to duty and other final products which were not chargeable to duty. They did not maintain separate accounts in respect of the said inputs used in the manufacture of dutiable goods and exempted goods, as envisaged under sub-rule (9) or rule 57CC of the erstwhile Central Excise Rules, 1944.
Held that:- the appellant had reversed the proportionate Cenvat credit on taxable input during the relevant period within the spirit of Rule 57CCC as introduced with retrospective effect vide the Finance Act, 2010. We further hold that the Id. Commissioner have erred in disbelieving the Certificate of Chartered Accountant which was based on the data and facts contained in the SCN dated 23/9/98 which, after verification, had been accepted by the Revenue in the subsequent order of adjudication. Thus, we hold that there was nothing much left for the Id. Commissioner to examine the same and except arithmetical accuracy of the amount reversed and interest if any, paid. Accordingly, we allow the appeal on merits. - Decided in favor of assessee.
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2016 (7) TMI 797
Denail of Cenvat Credit - whether bought out items are inputs - Held that:- Since the boiler is the final product of the manufacturer, every component within it and every input that goes into the component manufactured in the factory would an input in so far as CENVAT Credit Rules, 2004 is concerned. It is certainly not a tenable claim that Revenue can distinguish between an input of an input and an input itself when there is no dispute that the components manufactured from inputs and the components that are inputs have gone into the final products; nor can Revenue presume to enter the commercial arena and dictate the manufacturing policy of an industry. In the context of the decision of the Tribunal in the appellant's own case cited supra which we respectfully follow, we find that the 'bought-out' items are also inputs for the purpose of taking credit in accordance with the definition in rule 2(k)(i) as it stood then.
The appellant is entitled to take CENVAT credit on the bought-out parts used in the installation of boilers. We notice that some of the boilers have been erected at the Special Economic Zone at Jamnagar while others have been exported from India. Considering the decision of the Tribunal in re Flat Products Equipments (I) Ltd (supra) the demand of credit cannot survive.
Credit allowed - Decided against the revenue.
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2016 (7) TMI 772
Claim of rebate/ refund - export of goods - ARE-Is, did not have a certification of the Central Excise Officer that the export goods were sealed with Central Excise seal before the Officers. - The ARE-Is also did not bear a declaration of the exporter that the consignment has been packed and sealed in his presence by the seal, indicating that the goods claimed to have been cleared for export, had been cleared from the factory without any sealing. - Held that:- Government observes that any export clearance, intended to be made for claiming duty rebate, will be subject to Rule 18 ibid read with Notification No.19/2004-CE (NT) dated 06.09.2004. ARE-I is the principle document under the said notification that establishes that the applicant has either followed the procedure for sealing of goods and examination of goods at place of dispatch either by Central Excise Officer or by self-sealing. If the clearances have been made without following the procedure described above, it cannot be established that goods which were cleared from factory were the ones actually exported or that goods exported cannot be correlated with goods cleared from the factory.
Leniencies in the sealing procedure could lead to possible fraud of claiming an alternatively available benefit which may lead to additional/double benefits. Therefore, Government notes that requirement and procedure of sealing either by Central Excise Officers or by self sealing is both a statutory condition and mandatory in substance for removal of goods for exports under claim for rebate of duty in the present case the applicant has admittedly failed to comply with the provisions by neither following the provision for scaling of goods at place of dispatch under excise supervision nor the self sealing procedure. - Claim rejected - Decided against the applicant.
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2016 (7) TMI 771
Manufacture - Demand of differential duty - appellants have taken CENVAT credit on the bars/strips and paid duty on the said final products @16% ad valorem till 28-02-2004 and @ 8% ad valorem from 01-03-2004 to 30-06-2004. However they stopped paying duty from July 2004 onwards and sought to classify the said final products under CETH 7206.90 of the Tariff on the contention that the processes carried out by them do not amount to manufacture. The department however entertained the view that the said final products correctly fall under Chapter heading 7308 of the Tariff and not under Chapter 72 and hence a show cause notice dated 08-04-2005 was issued to the appellant proposing demand of differential duty for the period March 2004 to June 2004
Held that:- process undertaken by the respondents do not amount to manufacture as the MS rods, plates, angles etc. remain the same even after the process have been carried out. Therefore, there is no new manufacturing process involved. - Demand set aside.
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2016 (7) TMI 770
Valuation - cash discount - short payment of duty - it was observed that the assessable value shown in the Central Excise invoice was 4% less than the assessable value shown in the commercial invoices for the same goods - Held that:- Though the appellants have taken a categorical stand before the authorities below that the complete reconciliation was being made by them at the end of manufacturer, during the period involved in the present appeal, and wherever the cash discounts offers were not availed by the customers, they were paying duty, we, at this point of time, are of the view that reconciliation has become the secondary issue in view of the legal issue having been settled in favour of the assessee.
If the cash discounts offered by the appellant, are required to be considered and the assessable value has to be recalculated based upon such offers of discounts, in terms of the Supreme Court decision, the present demand of duty on the ground that such cash discounts do not stand availed by the appellants’ customers in most of the cases, falls to the ground. - Demand set aside.
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2016 (7) TMI 769
Cenvat Credit on capital goods - boilers and Water Treatment Plant (WTP) not installed within the factory premises of appellant but in the neighbouring unit - Held that:- Undeniably the WTP is an essential part of the manufacturing process undertaken by appellants. Further the definition of factory as contained in Section 2(e) of CEA, 1944 does not anywhere use the word 'registered premises'. Registration of the premises is only a procedure for application of the Act in practice. The WTP in the GAIPL premises is transferred to the appellant by lease agreement and appellant is paying rent. Non-registration of the premises, in which the WTP is situated in the appellant's name or adding it to the appellant's factory premises at the most can only be a procedural lapse, which can be cured. In view thereof, I hold that credit on WTP is admissible. - Credit allowed
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