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Central Excise - Case Laws
Showing 141 to 160 of 253 Records
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2016 (7) TMI 768
MRP based duty - undervaluation - clearance from unit-I to unit-II - branded chewing tobacco - pouches, weighing 5 gms each - whether the multi-piece packs from the factory are intended for retail sale as claimed by the appellant and whether such goods intended for retail sale are required to be printed with Maximum Retail Price under the Standards of Weights & Measures (Packaged Commodities) Rules, 1977.
Held that:- Tax arbitrage is a reality that cannot be wished away or suppressed by executive action. It is a legitimate strategy that is bound to be adopted, if, as in the present instance, a minor tweaking of marketing practice will gain that financial advantage. It is the favourable valuation outcome that weighs with the assessee in complying with the prescription of the Standards of Weights and Measures (Packaged Commodity) Rules, 1977 and which cannot be resisted if otherwise compliant. Enforcement is the responsibility of officials of both Legal Metrology and the Central Excise at the retail sale point.
As long as consumer interest is served, higher revenue from the alternative valuation cannot be a determinant of proper valuation.
It is thus, unambiguously clear that the manner of retail packing - whether as a pouch of less than 10 gm/ 10 ml or as multi-piece packet is a marketing decision of the manufacturer. Being an ascertainable fact, the Tribunal has constantly held that affixing the retail selling price on the multi-piece packet is a clear indication of intent for retail sale. As long as such multi-piece packs are cleared from the factory with retail selling price, its compliance with Standards of Weights and Measures (Packaged Commodity) Rules, 1977 is not arguable. The lower authorities erred in brushing aside the clarification given by an official of Legal Metrology department without confirming the veracity of its contents at appropriate levels in that department.
Matter remand back to the original authority to ascertain from the relevant invoices if the goods have, indeed, been cleared as multi-piece packs with retail selling price affixed on them and to limit demand of differential duty only to the extent that the clearances not made in multi-piece packs or in multi-piece packs that do not bear the retail selling price. - Decided partly in favor of assessee.
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2016 (7) TMI 724
Production capacity based duty - Sec.3A of the Central Excise Act, 1944 - Held that:- R.5 of the Rules,1997 is neither in violation of Art.14 of the Constitution of India nor ultra vires to Sec.3A of the Act,1944. The parties will abide by the final outcome of the pending proceedings before the Apex Court and the petitioner, apart from validity of R.5 of the Rules,1997 which we too have held to be intra vires to Art.14 of of the Constitution of India, will be at liberty to contest the other issues before the Commissioner (Appeals) or the CESTAT, as the case may, if he so wishes and in these terms, the present writ petition stands disposed of.
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2016 (7) TMI 723
Restoration of appeal - appeal was dismissed in absence of fulfilling the condition to pre-deposit under section 35-F of the Act - Held that:- During pendency of the present appeal, appellant deposited entire amount of ₹ 5.50 lac towards pre-deposit, as stated by learned counsel for appellant. In view of aforesaid, we find that if the appellant has complied with the condition of pre-deposit though with delay in given circumstances, appeal needs to be restored. In the background aforesaid, impugned order is set aside and if appellant has already deposited the amount of ₹ 5.50 lac, the Tribunal is directed to hear and decide the appeal on merit after its restoration.
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2016 (7) TMI 722
Levy of penalty upon the appellant under Rule 173Q of the Central Excise Rules, 1944 for clandestine removal of the goods - Held that:- The removal of excisable goods were substantial looking to the further annexures annexed with the show cause notice issued by the respondent-Department and also looking to the Order-in-Original passed by the Commissioner of Central Excise in his order dated 17th October, 2005. Sizable amount of central excise duty was evaded and, hence, no error has been committed while passing the Order-in-Original by the Commissioner of Central Excise, Ranchi as well as by the CESTAT, Kolkata for imposing penalty of ₹ 2 Lakh upon each of the appellants. We see no reason to take any other view than what is taken by the CESTAT, Kolkata. So far as penalty of ₹ 35 Lakhs upon the company is concerned, the matter has already been remanded by the CESTAT, Kolkata. The amount of ₹ 2 Lakh per head of penalty is absolutely just and proper, looking to the nature of clandestine removal of the goods without payment of the duty. There is no substance in these Tax Appeals and, hence, the same are, hereby, dismissed.
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2016 (7) TMI 721
Tribunal granted the full waiver from pre-deposit without assigning any reason - revenue in appeal - prejudice to the interest of public revenue - Held that:- - The jurisdiction, which this Court exercises, under Section 35G of the Act, is only where a substantial question of law arises for consideration. While exercising jurisdiction under Section 35-G of the Act, this Court would not record a finding afresh on facts. The Tribunal was required in law to assign reasons why it considered it appropriate that the appeal should be heard without the requirement of pre-deposit; and to take into consideration undue hardship, if any, as also to safeguard the interests of Revenue. As the Tribunal has not assigned any reasons why it considered it appropriate to hear the appeal without any requirement of pre-deposit, the order under appeal is set aside. - Tribunal to re-decide the matter - Decided in favor of revenue.
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2016 (7) TMI 720
Demand of duty on account of either transferred losses or on failure to furnish re-warehousing certificate - business of refining of crude and marketing various petroleum products thereof. - Held that:- Government notes that the original authority and Commissioner (Appeals) has given detailed findings with regard to factual aspect of submission of re-warehousing certificate and observed that the same were not submitted by the applicant in the prescribed manner and also failed to account for the impugned goods. Such detailed factual findings have not been controverted in grounds of Revision Application by means of any factual submission, duly supported by any relevant documentary evidences. Under such circumstances, the conclusion of appellate authority, based on such incontrovertible factual observations requires to be acceded to. Government thus holds that the applicant has clearly failed to duly account for the impugned goods and to submit the prescribed proof of their receipt/re-warehousing despite several opportunities given to them in remand proceedings from time to time. - Revision application rejected - demand confirmed.
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2016 (7) TMI 719
Rebate/Refund claim - proper documents - applicant had submitted photocopies of clearance documents viz ARE-1 and Central Excise Invoice for sanction of rebate claim - Export of goods manufactured by third party - Held that:- Government notes that original copy of ARE-I and Excise invoice among other documents are essential documents for claiming rebate. Any non-submission of documents in the manner prescribed thus imparts a character of invalidity to the rebate claim. Also in the absence of the original copies of ARE-I duly endorsed by the Customs, the export of the same duty paid goods which were cleared from the factory cannot be established which is a fundamental Requirement for Sanctioning rebate under Rule 18 read with Notification 19/2004-CE(NT) dated 06.09.2004.
It is a settled issue that benefit under a conditional notification cannot be extended in case of non-fulfilment of conditions and/or non-compliance of procedure prescribed therein. - Claim was rightly rejected.
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2016 (7) TMI 718
Rebate/ Refund claim - merchant exporters - The duty was paid @ 10% under Notification No. 2/08-CE dated 01.03.2008, as amended. However, the rebate sanctioning authority, has held that the effective rate of duty on the export goods was 4% vide Notification No. 4/2006-CE dated 01.03.2006 as amended. Hence the claimant was eligible for rebate of duty @ 4% adv. paid on export goods. However the rebate claim was rejected on the grounds that in ARE-I No. 04/10-11 dated 29.052010 the chapter heading mentioned on the Central Excise Invoice, ARE-I and shipping bill was different.
Held that:- Government finds that there is no merit in the contentions of applicants that they are eligible to claim rebate of duty paid @10% i.e. General Tariff Rate of Duty ignoring the effective rate of duty @ 4% or 5% in terms of exemption Notification No. 4/06-CE dated 01.03.06 as amended. As such Government is of considered view that rebate is admissible only to the extent of duty paid at the effective rate of duty i.e. 4% or 5% in terms of Notification No. 4/06-CE dated 1.03.06 as amended, as applicable on the relevant date on the transaction value of exported goods determined under section 4 of Central Excise Act, 1944.
As regards the discrepancies in Chapter heading in ARE-I, Excise invoice viz-a-viz Shipping Bills, the applicant themselves admitted to have committed the mistake. They have further stated to have applied for amendment before custom authorities. However, even after more than 4 years of such application, the applicant could not submit any order of appropriate authority allowing the amendment. As such, the applicant's contentions on this ground cannot be accepted. Thus the lower authorities have rightly held that the discrepancy in description of the product exported on the shipping bill and corresponding excise invoice would mean that the impugned goods have not been exported by the assessee and hence the applicant is not entitled to rebate.
Decided against the applicant.
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2016 (7) TMI 656
Rabte / refund claim - Export of goods after 6 months from the date of clearance of goods from factory - violation to permission of Notification No.19/2004-CE(NT) dated 06.09.2004. - Held that:- The applicant has contended that the case laws relied upon by them vide their submission dated 15.04.2011 before the original authority has neither been analysed nor distinguished in the order. A perusal of the impugned Orders-in Original shows that in para 11, the adjudicating authority has given a specific finding that "the contention of the claimant as above is not acceptable in the present case since all the three case laws pertain to exports made under Bond or under other schemes and have little bearing on the facts of the assessee". Government finds nothing to the contrary has been placed on record to interfere with this observation of the original authority.
Claim rejected - Decided against the applicant.
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2016 (7) TMI 655
Rebate / refund claim - applicant exported the goods procured from the manufacturer and filed rebate claim - original authority rejected the rebate claims filed by the applicant on the ground that the declaration given at Sr.No.3(a)(b) & (c) is incomplete. - Held that:- Commissioner (Appeals) has given detailed findings with regard to factual aspect of each AREs-1 and observed that there has been mismatch in details given in AREs-1 and Shipping Bill with regard to quantum of duty/quantity of goods. Such detailed factual findings have not been controverted in grounds of Revision Application by means of any factual submission, duly supported by any relevant documentary evidences. Under such circumstances, the conclusion of appellate authority, based on such incontrovertible factual observation required to be acceded to. - Revision application dismissed - Decided against the applicant.
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2016 (7) TMI 654
Extended period of limitation - Levy of penalty - Cenvat Credit - input services - nexus with manufacturing activity - service tax paid on Travel Services relating to transport of their employees though transport of employees - Held that:- the appellant’s action of taking cenvat credit even on the part amount, which was recovered from the employees in case of facility of travel to and fro, is only a bonafide action; no malafides cannot be attached to the said action of taking cenvat credit.
In the present appeal period involved is from 2005-06 to 2009-10. When the certainty for the principle that 'cenvat credit is not to be allowed in case of service tax paid on the component of the payment made by the employees for input service of travel' was decided by Hon'ble Bombay High Court by its pronouncement dated 25.10.2010 in the case of CCE, Nagpur Vs. Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT], it cannot be held that the appellant had willfully suppressed the fact of irregular cenvat credit in case of input service of traveling. It is, therefore, right to conclude that the subject demand and recovery would be legally unauthorized beyond the normal period of one year from the relevant date.
The case is remanded to the original adjudicating authority, who will freshly adjudicate and arrive at the revised liability of 'disallowed' cenvat credit along with liability of interest for the normal period of one year after following the observations and the conclusions made by the Tribunal in above paras. - Decided in favor of assessee.
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2016 (7) TMI 653
Claim of refund after surrender of registration certificate - un-utilized cenvat credit - export of goods - Held that:- there is no express prohibition in terms of Rule 5 - refund allowed - Decided in favor of assessee.
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2016 (7) TMI 652
Eligibility of notification No. 7/2003 exempting articles of apparel or clothing if manufactured or got manufactured for personal use not intended for sale - assessee pleaded that the Commissioner (Appeals) having decided availability of exemption notification, in their favour, should have set aside the order in original in its totality instead of remanding the matter back to him for verification - Held that:- After having gone through the impugned order of the Commissioner (Appeals), we find that the matter stand remanded by him for examining and verifying the factual position which in our view is necessary to extend the benefit of notification. It is only in particular circumstances, the exemption is available to the assessee and fact that wherever they have claimed the exemption for manufactured garments which are meant for individual use or not are essential for extending benefit of such notification. As such, we do not find any infirmity in the views of appellate authority and accordingly, direct the adjudicating authority to do the verification in terms of the directions as contained in the order of Commissioner (Appeals). In the foregoing discussion, the appeal is rejected.
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2016 (7) TMI 651
Refund claim - valuation - price escalation - Held that:- As decided in assessee's own case refund can be granted to the assessee in a situation where the assessments were not made provisional but the price of excisable goods was reduced downward after clearance of the goods as per price variation clause which was in existence in the contract under which goods were being cleared and the buyers adjusted the amount, from the sale prices to be paid on the goods subsequently sold. As such, find that the issue stands decided in favour of the assessee on merits.
On the unjust enrichment angle, we find that in the instances before us, the customers have refused the payment of the price escalation invoices raised by the appellants. From this, it is evident that the appellants have not recovered the duty incidence from their customers. - Decided in favour of assessee
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2016 (7) TMI 650
Supply of goods against ICB - Eligibility of exemption under Notification No. 6/2006-CE dated 01.03.2006 r/w amended Notification No. 46/2008-CE dated 14.08.2008 treating that the goods supplied are for setting up of ultra mega power project - need to Maintain separate accounts when common inputs are used in manufacture of both dutiable and exempted goods - Held that:- On perusal of records it is seen that competant authority has issued certificate that the goods are exempt from duty as per Notification No.46/2008 dated 14.08.2008. This Notification says that the goods are exempted from duties of customs leviable under First Schedule of Customs Tariff Act, 1975 and additional duty leviable under Section 3 of the CTA when imported into India. When goods manufactured in India are supplied against ICB, such goods would be eligible for full duty exemption as per this notification. This point has been clarified by the Co-ordinate Bench of Tribunal in the case of Bharat Heavy Electricals Ltd., case (2015 (7) TMI 225 - CESTAT NEW DELHI). Commissioner (Appeals) has erred in holding that the provision of Rule 6(6)(vii) is applicable only w.e.f. 27.02.2010. Also see Areva T & D India Ltd. [2014 (3) TMI 703 - CESTAT CHENNAI ] - Decided in favour of assessee
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2016 (7) TMI 636
Recovery of refund claim - whether refund already granted by the adjudicating authority can be recovered by issuing a show cause notice, without filing appeal challenging the order of adjudicating authority sanctioning the refund? - Held that:- When no appeal was filed against order under Section 11B, the department cannot take recourse to Section 11 A. See Commissioner of Customs & Central Excise Vs Panyam Cements & Mineral Industries Ltd (2016 (4) TMI 688 - MADRAS HIGH COURT) - Decided in favour of assessee.
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2016 (7) TMI 635
Applicability of notification no.108/95 granting exemption to the goods manufactured by the assessee who have supplied to projects approved by Government of India and financed by World Bank or any other international organization - Held that:- Both the sides agree that the issue is no more res integra and stands settled by various decisions of the Tribunal. Reference is made to the Tribunals decision in the case of Commissioner of Customs and Central Excise Kanpur vs. Jyoti Capsules(2009 (10) TMI 746 - CESTAT NEW DELHI) as also to a latest decision in the case of Commissioner of Central Excise Jaipur Vs Mahindra & Mahindra (2015 (9) TMI 1145 - CESTAT NEW DELHI). It was held that the supplies made for the project financed by International Development Association would earn the exemption in terms of notification no. 108/95-CE.
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2016 (7) TMI 634
Manufacture - eligibility of notification Notification no. 23/2003-CE dated 31.02.2003 - concessional rate of duty - both the authorities have held that the activity of the appellant does not amount to manufacture - duty of excise demand - Held that:- Though the ld. Advocate for the appellant have contested that the activity adopted by them amounts to manufacture in terms of the law declared by the Tribunal in the case of Unitech International Ltd. Vs. UOI (2012 (10) TMI 499 - CESTAT, AHMEDABAD ), but we are of the view that if even if as per the stand adopted by the Revenue, as regards the activity not amounting to manufacture is accepted by us, we really fail to understand as to how the duty of excise can be confirmed against the appellant. Admittedly, excise duty is leviable on goods manufactured and if there is no manufacturing activity involved, as held by the lower authorities, for the purpose of denying the benefit of exemption notification, how the excise duty can be confirmed by applying the full rate of the same value of activity. Even as per the Revenue there is no manufacture and if that be so, no excise duty demand can stay.
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2016 (7) TMI 633
Claim of refund - valuation - whether refund of VAT and interest received from the banks are not liable to be tax as duty of excise - refund claim was rejected on the ground that the duty was not paid under protest - Held that:- It is an admitted fact of this miscellaneous income by way of refund of VAT and interest received from the banks, the appellant is not liable to pay duty as these are not manufactured items and the assessee liable to be paid duty on the goods manufactured by them. As observed that the appellant was not required to pay duty, therefore, on pointing out by the audit team, any amount paid by the appellant shall be deposit made by them with the department although, the same has not paid under protest. In these circumstances, it is held that the amount paid by the appellant is not the duty and is only deposit. The revenue has no right to retain the said amount with them therefore, the appellant is entitled for refund claim to the amount deposit by them with the department. - Decided in favour of assessee.
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2016 (7) TMI 632
Input service credit denied on Courier services and record keeping charges service - period of December’ 2013 to November’ 2014 - Held that:- The appellant has explained the uses of courier services for procurement for small engineering items, raw material, testing equipment. As the usage has not been contravened by tangible evidence by the revenue. In that circumstances the courier services have been availed by the appellant are related to the manufacturing activity therefore the appellant has rightly availed the cenvat credit on courier services charges. With these observations, the cenvat credit availed by the appellant is allowed by setting aside the impugned order for taking the cenvat credit on courier services charges.
With regard to record keeping charges find that these records are the part of accounting and auditing to the appellant and accounting or auditing service forms the part of Rule 2(I) of cenvat credit Rules, 2004. Therefore, the record keeping charges are entitled as input service in the facts and circumstances of the case. Therefore, cenvat credit to the appellant on record keeping charges allowed - Decided in favour of assessee.
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