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Central Excise - Case Laws
Showing 61 to 80 of 253 Records
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2016 (7) TMI 1115
Cenvat Credit - eligible input services - guest house services - charges paid by them for accommodation of their employees at the Guest House at Gurgaon managed by their Head Office - Held that:- The appellants have categorically asserted that their staff and executives associated with Bhiwadi Unit availed the room facilities at Gurgaon. These accommodation facilities are for official stay billed and paid by the appellant and forming part of their business expenditure. These are not for personal use of employees. - Credit allowed. - Decided in favor of assessee.
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2016 (7) TMI 1114
Refund - unjust enrichment - price revision after clearance of goods - their buyer M/S APCPDCL has reduced the basic prices subsequent to their clearances - Held that:- It is a fact that the Commissioner (Appeals) has not addressed the issue of unjust enrichment which the original authority had held as affecting the refund claim. We therefore find ourselves in agreement with the plea put forth by Revenue and remand both the appeals to the original authority for addressing whether the refund claims are hit by unjust enrichment. The revenue appeals are allowed by way of remand.
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2016 (7) TMI 1113
Refund - appellant preferred a refund claim of duty on the ground that for the clearance of BOPP film to M/s Ravi Foods Pvt. Ltd against invalidated DFIA they are not liable to pay any duty in terms of Notification No.44/2001-CE(NT) dated 26-06-2001. - Held that:- the contention of the appellant that even if they are not eligible under Notification No.44/2001 they could be given benefit of 43/2001 is therefore misconceived and unacceptable, since it is not the case of appellant that they had applied for benefit under 43/2001. - Decided against the assessee.
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2016 (7) TMI 1112
Cenvat Credit - assessee was reversing/paying an amount equal to 10% of the value of the exempted goods as provided under Rule 6 (3) (b) of CENVAT Credit Rules. Department was of the view that appellant was using HR plates exclusively for manufacture of exempted goods and therefore contravened Rule 6 (1) of CCR, 2004 by availing credit on HR plates which were used for making exempted goods only.
Held that:- The Tribunal held that law provides choice for pay amount as per Rule 6(3) (b) when assessee not able to maintain separate account. - Demand is not sustainable - The same is set aside. The appeal is allowed with consequential reliefs, if any.
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2016 (7) TMI 1111
Cenvat Credit - Capital goods - Pre-fabricated building materials - Held that:- The appellant herein has made manufacturing premises/shed using the 'pre engineered structures/ pre-fabricated building materials". As discussed above, as these goods fall within Chapter 94, in my view, the credit is not admissible - Credit not allowed - Decided against the assessee.
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2016 (7) TMI 1110
Demand of duty - (i) to recover duty on MRP based assessment on goods supplied to CSD canteens and Institutions, (ii) to deny CENVAT credit taken before receipt of goods and (iii) to recover Central Excise duty on certain invoices recovered from the appellant on which there were errors. - Held that:- In so far as serial number (i) of first para is concerned, we find that the issue of applicability of MRP based assessment to institutional sales has been contentious matter and there have been various judgements on either side. In the instant case no evidence has been adduced to show that the appellants were aware of their liability and had deliberately suppressed from the Revenue. In these circumstances no penalty can be imposed.
In so far as the serial number (ii) of first para is concerned, the appellant had reversed the said credit on their own and in the first adjudication order no penalty on this issue was imposed. Since the said order has not been challenged by the Revenue, no penalty can now be imposed on the appellant on this count. In fact the first adjudication order finalized the issue.
In so far as serial number (iii) of first para is concerned we find that all the invoices produced by the appellant show that they have invoice numbers printed by computer. In some of the invoices the serial number has also been printed by franking machine and in some others the same has been pre-printed. In all the invoices, whether pre-printed or machine printed there is computer generated identical numbers on the invoices. Furthermore, all the invoices clearly shows the duty has been paid in respect of those invoices. We find that the statements of the Director (Finance & Administration) and the Director (Operations) of the appellant do not contain any admission of clandestine clearance. The show-cause notice does not contain any allegation or evidence of clandestine clearance. In these circumstances, we cannot sustain the charge of clandestine clearance.
Decided partly in favor of assessee.
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2016 (7) TMI 1109
Impact of subsequent decision of Apex Court on the matter already concluded - Cenvat Credit - capital goods used in the mines - Held that:- it was held by the Hon’ble Supreme Court that after the proceedings had attained finality and have not been challenged before the higher authorities, the benefit cannot be extended to that particular assessee in view of a subsequent decision by the Supreme Court. Otherwise also we find that the issue is no more res integra. In the absence of fact of filing the appeal against Commissioner’s order denying the credit, it has to be held that the Commissioner’s order attained the finality. In such circumstances, the benefit of any subsequent decision of higher forum, cannot be extended inasmuch as the assessee has not kept the proceedings alive during the in between period so as to infuse life into the same. The proceedings having become dead, cannot be made alive subsequently. - Decided in favor of revenue.
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2016 (7) TMI 1108
Central Excise duty demand - penalties imposed - duty has been worked out on the basis of clearances computed on the basis of entries in various documents recovered during the investigation - Held that:- The statement of the Director of the appellant assessee was never retracted and is indeed supported by the documentary evidences collected during the investigation. In the case of K.I. Pavuney vs Astt. Collector Cochin [1997 (2) TMI 97 - SUPREME COURT OF INDIA] held that confessional statement, if found voluntary can form the sole bases for conviction. Needless to say that for conviction the level of evidence required is to meet the yardstick of proof beyond reasonable doubt while in quasi judicial proceedings it is to meet the yardstick of “preponderance of probability” only.
However, there is force in the contention of the appellant that during the period when evasion took place Section 11AC ibid had not been enacted and therefore, penalty under Section 11AC cannot be imposed. We find that Section 11AC came in force on 28.09.1996 while period involved in this case falls within 1994-1995. Therefore, penlaty under Section 11AC of the Central Excise Act, 1944 is not attracted in this case.
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2016 (7) TMI 1107
Removal of goods as such - Demand of duty under Rule 3 (5) and Rule 3(5A) of Cenvat Credit Rules, 2004 - Held that:- The provisions of rule 3 (5A) read with Rule 3 (5) are not applicable in view of the categorical assertion of the appellant that no Cenvat credit was availed, which fact is further corroborated by the memorandum of purchase of 1997. Also hold that the extended period of limitation is not invokable as no case of any suppression or misconduct is made out on the part of the appellant. Thus, the appeal is allowed with consequential benefits in accordance with law.
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2016 (7) TMI 1106
Cenvat Credit on returned goods - activity of bringing the cement from Mattampally unit to the appellant unit - claim denied on the goods as not inputs but finished goods - Held that:- Manufacturer can take credit of duty paid on the goods by treating them as inputs. It is seen from the above rule that if goods are brought for any other reason also, the manufacturer is entitled to take credit as if the goods are inputs. The learned counsel for appellant submitted that the appellant unit had railway sliding tracks and this is the reason that the cement was brought from Mattampally unit to the appellant unit and marked with ISI mark and dispatched to the buyer. The contention of Revenue is that the goods being cement/finished product, the credit is not admissible. Rule 16 does not require remanufacturing of goods or that goods should undergo any process after being brought to the factory and before being removed. The goods if brought for being re-made, refined, reconditioned or for any other reason , the rule would apply. Thus, do not find that there is contravention of any of the provisions of Cenvat Credit Rule, 2004. The activity falls within the ambit of Rule 16 of Central Excise Rules, 2002. On such score, the demand of interest and imposition of penalty is unsustainable - Decided in favour of assessee.
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2016 (7) TMI 1105
Wrongful use of Cenvat credit - voluntary payment of interest - Refund of the amount encashed through bank guarantee - Held that:- As find that the orders of Settlement Commission has not been challenged by the Revenue and therefore, has become final. The Settlement Commission in its second order has clearly ordered that the interest of ₹ 1,46,827/- payable against the wrongful credit of ₹ 17,31,711/- to be adjusted against the excess duty paid by the appellant to ₹ 2,13,678/-. In these circumstances, the revenue has not the authority to encash the bank guarantee. However, it is seen that the amount of ₹ 44,443/- was paid against the earlier order of the Settlement Commission in which there was no such direction.
Encashment of bank guarantee by the Revenue is contrary to the orders of the Settlement Commission dated 09/07/2008 and needs to be refunded to the appellant.
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2016 (7) TMI 1104
Deemed production of Gutkha - whether the deemed production of Gutkha, in respect of the period March, 2012, is to be determined on the basis of the number of operating packing machines in the factory of the appellant, or on the basis of the speed of the machines declared by the appellant? - Held that:- Rule 5 of the said Rules fixes the deemed quantity manufactured, by use of one packing machine, with retail sale price printed on the pouch. The above provisions read with the C.B.E.C. Circular dated 24.01.2004 makes the position clear that the relevant factor to be considered for determination of production, is the number of operating machines installed in the factory during the month and the retail sale price printed on the pouches and not on the basis of actual production. It is clear from the above Circular of C.B.E.C. that number of packing machines, operating during the month, is the only relevant factor which forms the basis for determination of deemed production and the duty liability, in terms of Rule 5 of the Capacity Determination Rules, 2008; and not any other factor such as, speed of the machines etc. The impugned orders, adopting the declared speed of the machines as the basis and consequently determination of the deemed quantity of production, are not correct and hence not sustainable under the law.
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2016 (7) TMI 1103
Mis-classification of unglazed ceramic tiles under Chapter Heading 6906 10 00 - Held that:- It is found that there is no case in respect of Revenue's stand as it have not been able to counter the report of Chemical Examine, Madras, which has supported that item in question is unglazed tile deserving classification under Heading 6905 00. It has also been noted in the Order-in-Original itself that Department had written to Accountant General and this objection was settled between the Department and the Office of the Accountant General. Consequently, there are no substantial reasons to classify the item in question viz., unglazed ceramic tiles in any other Chapter Heading other than 6905 00.
Consequently, Department’s stand that classification for the item has to be under Chapter Heading 6906 of Central Excise Tariff Act does not stand any merit. - Decided in favour of assessee.
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2016 (7) TMI 1102
Disallowance of credit on input services - whether fabrication services having been availed outside the factory are not eligible for credit as they do not qualify as input services? - Held that:- By bringing in the amendment vide Notification No.10/2008 dt. 01/03/2008 to the definition of input services w.e.f. 01/04/2008 a radical change was introduced expanding the clearances of final products upto the place of removal. Further in the case of Endurance Technology (P) Ltd. (2015 (6) TMI 82 - BOMBAY HIGH COURT ), the Hon’ble High Court of Bombay has categorically held that no such restriction is imposed.
The arguments advanced by Revenue regarding fabrication services are untenable. All the other services for which the credit has been denied have been held to be eligible input services in a catena of judgments cited supra as these services would get covered under the activities relating to business. Denial of credit is unjustifiable - Decided in favour of assessee.
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2016 (7) TMI 1101
Cenvat credit - M.S. Angle, M.S. Channels, CTD Bars, Joists, Flats, Plates, HR Coils, Fish Plates, Aluminium Sheets in coils, oxygen gas, welding electrodes etc. used for fabrication of supporting structure of the capital goods - Held that:- Appellant is entitled to avail Cenvat Credit on the disputed inputs viz.,M.S. Angle, MS Channels, CTD Bars, Joists, Flats, Plates, HR Coils, Fish Plates, Aluminium Sheets in Coils, etc. for fabrication of components and accessories viz., Klin, Cooler or Material Handling Systems within the factory premises as capital goods/components/accessories of capital goods for the manufacture of Sponge Iron in the Appellants manufactory in as much as the test of usage and utility as envisaged in the aforesaid decisions would be the only relevant factory for determining the admissibility of Cenvat credit. Since the Appellant have demonstrated the use of disputed inputs for fabricating the aforesaid capital goods to aid the process of manufacture of Sponge Iron for the purpose of availment of Cenvat Credit, the Order impugned passed by the lower authority is clearly not sustainable on merits.
With regard to oxygen gas and welding electrode, the ld. Commissioner (Appeals) has allowed the Cenvat credit to the respondent by placing reliance on the judgment of Hon'ble Rajasthan High Court in the case of Hindustan Zinc Ltd. -Vs.- Union of India, (2008 (7) TMI 55 - HIGH COURT RAJASTHAN) and the decision of Mangalore Refinery & Petrochem Ltd., (2007 (7) TMI 166 - CESTAT, BANGALORE). - Decided in favour of assessee.
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2016 (7) TMI 1075
Manufacturing activity or not - fabric cut into Dhoties - process like cutting to short length, stitching ends, ironing, folding and packing resulting in enhancement the value of product - Held that:- The Tribunal in the impugned judgment has arrived at a finding that after receiving the product from job worker, at whose end excise duty is duly paid, the assessee simply cuts them into Dhotis and, therefore, in terms of Rule 12(B) read with Circular No. 557/53/2000-CX dated 03.11.2000, it will continue to be classifiable as fabric under Chapter 52/54/55 and such a process undertaken by the appellant does not amount to manufacture. - Order of tribunal held as correct - Decided against the revenue.
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2016 (7) TMI 1074
Lapsing of credit of duty lying unutilised with the manufacturer from a specified date. - Held that:- It appears that in their wisdom, the Central Government sought to balance the rationalisation of duty structure and provide flexibility in the use of credit by lapsing the accumulated credit which was admittedly a product of the earlier duty structure.
Viewed from the aforesaid perspective, we are unable to hold that the making of Rule 57F(4A) was so irrational or unreasonable as to fall foul of the Constitution of India. As to how, a fiscal legislation is to be framed is not an area where any interference under Article 226 is warranted. Scope of judicial review in respect of fiscal legislation is limited to the extent of determining whether it is outside the legislative competence of the legislature to enact such legislation and/or whether such enactment is so unreasonable and irrational so as to violate the rights guaranteed under the Constitution.
In the present case, we are unable to accept that the legislative policy in aid of which Rule 57F(4A) was made, is irrational or unreasonable. - Decided against the assessee.
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2016 (7) TMI 1073
Cenvat credit on welding rods/electrodes and asbestos sheets - scope of definition of 'inputs', as contemplated by Rule 2(k) of Cenvat Credit Rules, 2004 - Held that:- the term 'inputs', is wide enough to cover all the goods, except the goods specifically mentioned in the definition, inputs used in or in relation to the manufacture of the final product, whether directly or indirectly or whether it contained the final products or not. Judicial pronouncements extracted supra, makes it abundantly clear that welding electrodes used for repair and maintenance of machineries, in relation to manufacture of the final product, namely sugar, is eligible for Cenvat credit. - Decided in favor of assessee.
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2016 (7) TMI 1072
Cenvat Credit - eligible input services - service tax paid on 'loading charges' for loading the goods from their godown into their customer's vehicles - Held that:- based on the definition of place of removal, the premises of C&F agent would be treated as 'place of removal' and hence the goods which are being sold from C&F Agent's premises, would be the 'place of removal'. Therefore, the availment of credit of both loading as well as delivery charges are in order and therefore the impugned order is liable to be set aside. - Decided in favor of assessee.
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2016 (7) TMI 1071
Levy of penalty u/s 11AC - malafide intention or not - dispute were related to Classification - manufacture of car Air-conditioning machine and their parts - manufactured products are cleared along with the bought out items in a kit packing. The bought out items are sold as such without any value addition. - Held that:- the appellants have made suitable declarations at the time of changes made during Budget 2000 and that the change in declaration was also made on 01.07.2000 to the effect that the duty would be deposited by them @ 32% for the clearances made by them.
In the present case since the Appellant on their own has filed the declaration and had communications with the department. In these circumstances, the question of suppression of facts coupled with intention to evade payment of duty does not arise and accordingly the imposition of penalty u/s.11AC is unsustainable. - No penalty - Decided in favor of assessee.
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