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Central Excise - Case Laws
Showing 101 to 120 of 317 Records
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2016 (8) TMI 890 - CESTAT AHMEDABAD
Whether the value of goods bearing the brand name of another person manufactured in a rural area be included in the aggregate value of the clearances so as to extend the benefit of SSI exemption Notification No.9/2003-CE, dt.01.03.2003 - Held that:- undisputedly in the present case, the Appellant had manufactured the branded goods in rural area, hence, its value cannot be excluded in computation of aggregate value of clearance. Accordingly, we do not find any error in the reasoning of the learned Commissioner (Appeals) in computing the aggregate value of the clearances under Clause (3) of the said notification. - Decided against the appellant
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2016 (8) TMI 889 - CESTAT NEW DELHI
Classification - whether the appellants’ final product is required to be classified as Plant Growth Regulator falling under Tariff Sub-heading 3808.10, as contended by the Revenue or the same is required to be classified as Bio-fertilizer falling under Chapter Sub-heading No. 3808.20 of CETA, attracting nil rate of duty - Held that:- the Commissioner (Appeals) in the present impugned order has followed the earlier Order-in-appeal passed by him. Admittedly, the earlier Order-in-Appeal has not been challenged by the Revenue and stands accepted. In such a scenario no infirmity can be found in the present order of the Commissioner (Appeals) wherein he has simplicitor followed the earlier order on the classification. - Decided against the Revenue
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2016 (8) TMI 888 - CESTAT NEW DELHI
Cenvat credit - duty paid on various iron and steel articles like plates, rounds, sheets, bars, joist and angles etc. - goods used in fabrication of the capital goods as supporting structures - Held that:- the items in question were used in fabrication of the capital goods in which case even Larger Bench decision of Vandana Global Ltd. [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)], which allows the credit, does not stand rebutted or even challenged by the Revenue, the point also stand decided by recent decision of Gujarat High Court in the case of Mundra Ports & Special Economic Zone Ltd. vs. CCE & Cus [2015 (5) TMI 663 - GUJARAT HIGH COURT]. It stand observed in the said decision of the Hon'ble High Court that the decision of the Larger Bench in the case of Vandana Global Ltd. is not appropriate. - Decided against the Revenue
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2016 (8) TMI 887 - CESTAT NEW DELHI
Cenvat credit - benefit of Notification No. 1/93 - assessee was not registered with the Directorate of Industries of the Development Commissioner (SSI) as a small scale manufacturer - Held that:- even if the assessee claimed the benefit of clause 1 in the classification list, which was admittedly not available to them, the benefit of clause 2 of the notification cannot be denied to them. After availing the exemption in respect of first clearance of aggregate value of ₹ 10 lakh, the appellant started availing the cenvat credit of duty paid on the inputs and started paying full tariff rate on their final product. Such course of action adopted by the appellant cannot be faulted upon. Clause 2 clearly permits the assessee to do so. Therefore, credit cannot be denied. - Decided in favour of assessee
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2016 (8) TMI 886 - CESTAT AHMEDABAD
Condonation of delay - one year 10 months - Manager remained busy in re-allocation/shifting of their factory to Ambernath, Maharashtra - Held that:- it is found that even though the order was communicated to the appellant immediately two days after passing of the order, probably by hand delivery, and issues of similar nature of earlier period as claimed had been under litigation, the appellant failed to submit the appeal within the prescribed statutory period nor within a reasonable period, thereafter. The reason for delay in filing in the appeal as stated in the application as well as in the affidavit, cannot be accepted as sufficient cause warranting condonation of the inordinate delay inasmuch as the same is marred by gross negligent approach on the part of the applicant. Therefore, delay cannot be condoned. - Decided against the appellant
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2016 (8) TMI 885 - CESTAT NEW DELHI
Modvat credit - Job-work - raw materials sent out to the premises of job worker for conversion into aluminium wire and PVC compound - suppression of exact quantity of input used - an unreasonable amount of invisible loss at the hands of the job worker while conversion of PVC resin into PVC compound has been claimed - Held that:- the observation of excess process loss is supported by testing of a few samples of finished products. There is no justification for taking such percentage across the board for all products in the light of the contention of the appellant that they manufacture different types of goods and the process loss may vary depending upon the design of the product and even the reasons. There is nothing on record to substantiate clandestine clearance of finished products or even diversion of inputs without using the same in the manufacture of the finished products. Therefore, demand is unsustainable. - Decided in favour of appellant
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2016 (8) TMI 884 - CESTAT, MUMBAI
Invokation of extended period of limitation - Revarsal of Cenvat credit - Steel Structure material - bonafide belief that capital goods credit can be availed on structural - goods were received classifiable under Chapter 84 - no dispute regarding use of the said goods within the factory of manufacture - Held that:- the decisions cited by Revenue are in case where the inputs have been received classifiable under Chapter 72/73 of the Central Excise Tariff. The said chapters are not specifically included in the definition of capital goods. Moreover, it is found that the Commissioner (Appeals) has, in his order, recognized that this was an issue of interpretation. In such circumstances, when different Benches of Tribunal has different view and the matter was referred to the Larger Bench, it cannot be held that there was any mala fide involved in taking of credit. In such circumstances, extended period cannot be invoked. - Decided in favour of appellant
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2016 (8) TMI 883 - CESTAT, MUMBAI
Maintainability - Demand of interest and imposition of penalty under Section 11AC - Whether Section 35F require payment of any pre-deposit in case of interest or not - Held that:- Section 35F specifically lays down that pre-deposit under Section 35F is required when penalty has been disputed. In the instant case, there is a specific dispute of penalty, therefore, provisions of Section 35F have to be invoked. - Decided against the appellant
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2016 (8) TMI 882 - CESTAT CHENNAI
Cenvat credit - service tax paid on various input services - recovery of credits wrongly taken along with interest and imposition of penalty under Rule 15(1) of CCR 2004 - Held that:- the law has recognized that in case of Banking Company, it is neither possible nor practical for the said company to provide an invoice for the charges it levies and vide Notfn No.30/2004-ST dt. 22.09.2004, it has been provided that a banking company or a financial institution including a non-banking financial company, or any other body corporate or commercial concern, providing service to a customer, in relation to banking and other financial services, an invoice, a bill or, as the case may be, challan shall include any document, by whatever name called, whether or not serially numbered, and whether or not containing address of the person receiving taxable service but containing other information in such documents as required under this sub-rule. In view of the amendment brought vide circular , the appellant had rightly availed credit on the basis of the certificate issued by the Bank - Decided partly in favour of appellant
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2016 (8) TMI 881 - CESTAT NEW DELHI
Cenvat credit - availed input services credit without payment of value of input service and service tax on such service to the provider of services - violation of Sub Rule (7) of Rule 4 of Cenvat Credit Rules 2004 - Held that:- we have perused certain sample entries of verification made by original authority with reference to date of payment of value for service / service tax to the provider of services. It is very clear that at least in respect of some of the bills the respondent have availed and even utilized credit before the service tax was paid by them by cheque. In terms of the above legal position it is necessary for the respondent to establish with documentary evidence that they have availed Cenvat Credit on input services after the date on which they made payment of value for such services and also service tax has been paid to the provider of services before that date. This obligation has clearly been stipulated under Sub Rule (6) of Rule 9. Accordingly, we find that it is necessary to establish the payment of value as well as tax before availing the credit by supporting documentary evidence, as we have seen at least a few instances of availing credit before actual payment. The case has to go back to the original authority for verification of all entries to arrive at a proper decision about the eligibility of respondent for this credit. If the credits are availed prior to payment then necessarily the question of interest liability is to be examined, if otherwise, the credit become eligible on a later date (after payment of tax). - Appeal allowed by way of remand
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2016 (8) TMI 880 - CESTAT HYDERABAD
Demand alongwith interest and penalty - sale of free samples to pharmaceutical companies - appellants had determined the value of physician samples under Section 4(1)(a) and adopted a notional transaction value for payment of duty under Section 4 rather than partly assessed under Section 4A on the basis of MRP and partly assessed under Section 4 on the basis of transaction value under Circular No.625/16/2002-CX dt. 28/02/2002 - Held that:- the issue is squarely covered vide the Final Order passed by Tribunal in appellants' own case for different/subsequent period. The appellant also submitted that the issue is covered by the judgment laid in CC Vs. Sidmak Laboratories (India) Ltd. [2008 (9) TMI 360 - CESTAT, AHMEDABAD] which was also upheld by the Hon'ble Supreme Court [2009 (7) TMI 1233 - SUPREME COURT]. By applying the dictum of judgments, the demand is unsustainable. - Decided in favour of assessee with consequential relief
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2016 (8) TMI 879 - CESTAT NEW DELHI
Imposition of penalty - Rule 25 of the Central Excise Rules, 2002 - cleared SS Pipes and Tubes to other units without payment of duty against letter of invalidation of EPCG licence issued by DGFT - cleared finished goods to 100% EOUs also under CT-3 certificate - paid full duty liability alongwith interest much before issuance of SCN - Held that:- no malafide could be attributed in the present case against the appellant. They have intimated the non-duty paid clearances in all the three instances to the Jurisdictional officer. These clearances were indicated in the ER-1 though under the wrong category. The fact that full duty amount alongwith interest has been paid well before the issue of notice and the notice was issued covering the normal period only will go to show that the penalty in the present case may not be warranted. In fact the case could have been closed under the provisions of sub-Section (2B) of Section 11A of Central Excise Act, 1944. - Decided in favour of appellant
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2016 (8) TMI 878 - CESTAT NEW DELHI
Eligibility - concessional rate of duty under notification No. 10/03 dated 1.3.03 - disposable plastic syringe and disposable hypodermic needles cleared separately - syringes and needles are for specific function and are complementary to each other, hence, when presented separately should be considered as parts of medical appliances - Held that:- the only ground on which the concession was sought to be denied by the Revenue is that syringes or the needles cannot work independently. However, we are in agreement with the original authority regarding specific classification of the syringes and needles as instruments and appliances used in medical science. The syringe with or without needle and needle for different uses have been classified separately. There is no separate classification of parts and accessories of these items in the said Chapter. - Decided against the Revenue
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2016 (8) TMI 846 - CESTAT HYDERABAD
Cenvat credit - various input services - whether the captive mines of appellants can be considered as integrated with the main factory premises - Held that:- none of the input services on which credit has been availed by the appellant are excluded or barred by the provisions of the said Rule 2(l) as amended w.e.f. 01-03-2011. I also find that the said input services are very much in the nature of services directly or indirectly required in relation to the manufacturing /production activities carried out by the appellant at the impugned mine. In the circumstances, I hold that the disputed credits amounting to ₹ 83,823/- availed by the appellants on the aforesaid input services are eligible and correct in law.
It is further held that appellants are eligible to avail the following disputed credits namely mining related work, Mines Garage Attendants works, Concrete pavement at Bulk Loading Area, Lab Modification work and Electrical Maintenance charges at other places amounting to ₹ 1,27,283/- and are ineligible to avail credit on Formation of New Gravel road for the reason that the said road has been laid outside the perimeter of the captive mines and hence cannot be considered as service in relation to manufacture of final products etc. in the factory. Regarding Conveyor Extension, shed extending work at Packing Plant and wagon loading, Borewell works, Providing Drain in railway siding, these are services in relation to construction or execution of works contract of the building or a civil structure or a part thereof or laying of foundation or making of structure for support of capital goods, hence they will be disbarred by the exclusion provision of the said Rule 2(l), as applicable during the relevant period. Therefore, these services found as ineligible for the purpose of the said Rule 2(l) amount to ₹ 1,01,645/-.
However, keeping in mind that during the impugned period there did exist some lack of clarity on the eligibility or otherwise of credits relating to civil works etc and also noting that the appellant had filed ER-I returns all along, the penalty imposed under Section 11 AC of Central Excise Act read with Rule 15 of Cenvat Credit Rules, 2004, and the penalty imposed under Rule 25 of the Central Excise Rules, 2002, imposed by the adjudicating authority and upheld by the Commissioner (Appeals) cannot be sustained and will require to be set aside. - Appeal disposed of
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2016 (8) TMI 845 - CESTAT NEW DELHI
Whether an appeal would lie against the decision rejecting the request for cross examination - Held that:- by following the judgement of the Hon'ble Delhi High Court in the case of J & K Cigarettes v CCE [2009 (8) TMI 64 - DELHI HIGH COURT] and Tribunal's decision in the case of Swiber Offshore Construction Pvt Ltd v CC [2013 (11) TMI 1232 - CESTAT AHMEDABAD] where it was held that it is always open to the affected party to challenge the invocation of provisions of Section 9D of the Act in a particular case by filing statutory appeal, which provides for judicial review, I am of the view that an appeal is maintainable against the decision rejecting cross examination. Even as per the provisions of Section 35B of the Act read with the definition of adjudicating authority', this Tribunal has the power to entertain an appeal against the decision rejecting cross-examination.
The issues raised by the appellant, in its letter dated 18.2.2016 and argued before this Tribunal about the contention of the appellant regarding Section 9D of the Act and the manner in which it is to operate and, therefore, seeks to be provided the records of the examination-in-chief of the witnesses whose statements are referred to in the Show Cause Notice dated 11.05.2011 issued to the appellant, so that the appellant could, if necessary, seeks cross-examination of the said witnesses are no longer res-integra and stands decided by a number of authorities, most recently by Hon'ble Punjab and Harayana High High Court in Ambika International & others v UOI [2016 (6) TMI 919 - PUNJAB AND HARYANA HIGH COURT].
Therefore, in view of the above unequivocal expression of law as contained in a plethora of judicial authorities, the present appeal is allowed by setting aside the decision as communicated to the appellant by the impugned letter dated 18.03.2016, and the matter is remanded to the Principal Commissioner with a direction to adjudicate the Show Cause Notice strictly by complying with the mandate of Section 9D of the Act, in accordance with the directions contained in the judgment of Hon'ble High Court of Punjab & Haryana in Ambika International (supra). - Appeal disposed of
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2016 (8) TMI 844 - CESTAT NEW DELHI
Valuation - physician samples - regular trade packs are being cleared on payment of duty in terms of section 4A of the Central Excise Act. Also selling of physical samples, not marked with any MRP to M/s. Sanat Products who is further distributing the same free of cost - appellants have paid duty on the transaction value of the said samples whereas Revenue is of the view that same have to be assessed on pro rata basis by taking into consideration the MRP of the regular trade packs - Held that:- the issue is no more res integra and stand settled in favour of the assessee by Hon’ble Supreme Court decision in the case of CCE, Surat vs. Sun Pharmaceuticals Indus Ltd. [2015 (12) TMI 670 - SUPREME COURT]. It stand held that in the absence of any allegation of price at which the samples were being sold by the assessee to the distributor, the value of said samples has to be sale price of the goods. The fact that distributor further distributed the sample free of cost is irreverent to determine the value of physician samples. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 843 - CESTAT NEW DELHI
Cenvat credit - duty paid on various items like lining plates, HRCS lifters, coolers, etc. used in the Clinker and Hammer, etc. - used for replacement, repair and maintenance of their Clinker and other machines - Held that:- the issue is no more res integra and stands decided by various High Courts where some of the decisions were upheld by Supreme Court where it was held that repairs and maintenance of plant and machinery is an activity without which smooth manufacturing is not possible. Commercially, manufacturing activity is not possible with malfunctioning machines, and leaking tanks, pipes and tubes. Therefore, the activity of repair and maintenance of plant and machinery is an activity which has direct nexus with manufacture of final products and the goods used in this activity would be eligible for Cenvat Credit. Therefore, the assessee is eligible for Cenvat credit. - Decided in favour of assessee with consequential relief
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2016 (8) TMI 842 - CESTAT KOLKATA
Reversal of input credit - inputs used in the manufacture of finished goods - destroyed in fire - Held that:- in view of the decision of larger bench in the case of Grasim Industries vs.-Commr. Of Central Excise, Indore [2006 (8) TMI 69 - CESTAT,NEW DELHI] wherein it was held that in respect of goods which were lost or destroyed by natural cause or by natural accident, does not provide any condition regarding reversal of credit taken in respect of inputs used on such goods, the First Appellate Authority was not correct in holding that cenvat credit with respect to inputs used in the manufacture of finished goods, destroyed in fire, is required to be reversed. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 841 - CESTAT KOLKATA
Notification No.32/99-CE dated 08.07.1999 - eligibility for benefit - carrying out more than 25% expansion in the installed capacity of plywood production as prescribed in the exemption notification - no increase in the installed & licenced capacity in the old wood based industries of Nagaland after 30.10.2002 - Held that:- in view of the clarification dated 15.10.2009 discussed by the Adjudicating authority it cannot be said that no expansion in the installed capacity could be enhanced by the Respondent. There could be various stages by which installed capacities could be enhanced by the appellant so long as it remains within the licenced capacity decided by State Forest department in the light of Supreme Court s judgement dated 15.01.1998. There is also no requirement under Notification No.32/99-CE dated 08.07.1999 that licensed capacity fixed by State forest department has to be taken into consideration while allowing expansion and that appellant should in one go install all machinery required to cater to the licensed capacity sanctioned.
Notification No.32/99-CE dated 08.07.1999 - eligibility for benefit - Chartered Engineer vide his report dated 17.05.2005 has not taken veneer production into consideration while arriving at more than 25% expansion in installed capacity - Held that:- Adjudicating Authority further justified the expansion by not only based on a Chartered Engineer s Certificate dated 17.05.2005, but also relied upon a report of National Institute of Technology Agartala (A Central Government Institute). Certification given by two experts cannot be brushed aside without taking any other opinion of an expert as held by various judicial pronouncements relied upon by the Respondent. No evidence has been brought on records in the review order that any other expert s opinion was taken by the Department to counter the expert opinions obtained by the Respondent. In the absence of any such expert opinion obtained by the department it cannot be appreciated that quantity of veneer production should also be taken into consideration while determining the expansion undertaken. CBEC also while issuing a clarification under F.No.354/08/98-TRU dated 09.07.1999 opined that in case of doubt the Central Excise Officers may consult department of Industries of State Govt. for the purpose of 25% expansion in installed capacity, etc.
Notification No.32/99-CE dated 08.07.1999 - eligibility for benefit - Adjudicating authority has not enquired into the efficiency of the transformer and whether transformer of 1250 KVA will give 100% output - original ground plan showing list of plant & machineries before expansion carried out, could have been called by the Adjudicating authority - Held that:- it has not been amplified by the department as to how these verifications could have helped in establishing that more than 25% expansion in installed capacity has not been done. At the same time these suspicions and a separate expert contrary opinion could have been raised by the department to review the order dated 07.06.2005 passed by the jurisdictional DC, CEx, Jorhat allowing the benefit of Notification No.32/99-CE dated 08.07.1999. In the absence of Review of order dated 07.06.2005 the same has become final on admissibility of this exemption to the Respondent. - Decided against the Revenue
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2016 (8) TMI 840 - CESTAT HYDERABAD
Cenvat credit - MS Channels, MS Angles, Plates, Rounds, Beams etc. - used in fabrication of supporting structures to Capital Goods during the period from 2007-08 to 2008-09 - Whether amendment of Explanation 2 to Rule 2(k) of CCR inserted vide Notification No. 16/2009-CE dt. 07/07/2009 will have retrospective effect - Held that:- it is clear from the Explanation 2 to Rule 2(k) that nowhere in the amendment, nothing has been explicitly stated or clarified that the amendment will have retrospective effect. The doctrine of fairness is also an important requisite in giving retrospective effect to amendments. In case, benefits were extended and availed as permitted in earlier law, it would be unfair to snatch them away simply by insertion of an amendment to that effect. An amendment which seeks to lend further clarity to an existing statutory provision can definitely be retrospective if so unequivocally stated so in the body of the amendment or in the statement purpose by the legislature, however such amendment can only throw more light on a existing provision but should not extinguish the rights availed of before the amendment.
Period of limitation - Held that:- I do not find any infirmity in the finding of Commissioner(Appeals) that in view of similar demand issued to the same respondent on identical issue for earlier period, which has been decided in their favour, the law of limitation will hit the issue of impugned demand. This is a correct interpretation of law and is supported by a plethora of judgments of various courts. - Decided against the Revenue
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