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Central Excise - Case Laws
Showing 121 to 140 of 317 Records
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2016 (8) TMI 839 - CESTAT NEW DELHI
Valuation - determination of assessable value u/s 4 by deducting permissible deductions from the wholesale price - Held that:- Revenue's contention that the assessee did not raise the point earlier that the expenses under various heads furnished were provisional is factually incorrect as we have already recorded that the assessee had clearly stated in its letter that the deductions under various heads were on provisional basis and the actual expenditure can be ascertainable only after finalisation of accounts. It is a fact that even as per the show cause notice expenses on account of transportation, container services and trade discounts were held to be deductible and accordingly provisional figures relating to these heads were allowed to be deducted in the show cause notice itself.
In the wake of the fact that the actual figure of the total expenses under the aforesaid three heads held to be deductible from the wholesale price is ₹ 9558556/- which is far more than the total deductions claimed for the year 1994-1995 (viz. ₹ 58982962/- axiomatically no demand would survive after allowing deduction of the actual expenses relating to the said permissible three heads. Consequently we need not go into the merits of disallowing the expenses incurred under other various heads for the purpose of deciding whether the impugned demand is sustainable.
As regards the contention of Revenue that by adopting the actual figures for deduction, the Commissioner has gone beyond the remand order dated 21.4.2011 of CESTAT, we have perused the CESTAT order and we are unable to fathom from the CESTAT's remand order as to how adopting the actual figures of permissible expenses for arriving at the assessable value is in disharmony therewith while at the same time doing so is in harmony with the order of the Supreme Court dated 15.5.2015. - Decided in favour of assessee
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2016 (8) TMI 838 - 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 06.06.2016 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 16.02.2012 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 03.06.2016, 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 837 - 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 05.04.2016 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 06.07.2012 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 20.05.2016, 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 836 - 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 24.05.2016 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 16.02.2012 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 Haryana 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 03.06.2016, 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 835 - CESTAT ALLAHABAD
Demand - recovery of Cenvat credit on capital goods, Central excise duty alongwith interest and penalty and a short levy - credit was taken prior to receipt of input into the factory - Held that:- it is found that the CBEC Circular 645/36/2002-CX., dated 16.7.2002 provided that if the capital good are written off before use then the Cenvat credit availed has to be reversed. In the present case, there were no allegation that the capital goods were not used at all nor there were allegations that the Capital goods were removed from factory. We, therefore, hold that the Original Order demanding Cenvat credit, interest thereon and penalty equal to the same is not sustainable. Also there are no allegation that the inputs were not at all received in to the factory. Therefore, the demand of Cenvat credit and interest thereon and penalty equal to same is not sustainable. In respect of short levy, it is found that no evidence has been produced to establish that additional consideration was received by appellants. The levy required as per transaction value was discharged. Therefore, original order is not sustainable to extent of confirmation of Central Excise duty, interest thereon and penalty equal to the same. - Decided in favour of assessee with consequential relief
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2016 (8) TMI 834 - CESTAT NEW DELHI
Imposition of penalty - rule 15(1) of cenvat credit rules,2004 - Held that: - for supply of goods by the appellant to M/s DMRC the provisions of Rule 6(6)(vii) do not have any application. The appellant was required to pay an amount equal to 5% of the value of the goods supplied to DMRC, within the stipulated time frame which admittedly has not been done. Since the Provisions contained in the Cenvat Credit Rules, 2004 in the present case has been contravened / violated, the appellant is exposed to the Penal consequences provided under Rule 15 of the Rules. However, considering the overall facts and circumstances of the case, it was found that penalty imposed by the lower authorities in the higher side. Thus, in the interest of justice, the penalty reduced to ₹ 10,000 - impugned order modified - decided partly in favor of appellant.
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2016 (8) TMI 790 - MADHYA PRADESH HIGH COURT
Rejection of cross objections as time barred - Whether the learned Tribunal was justified in dismissing the appeal of the appellant on account of delay in filing of appeal before the respondents as the order in original passed by the Additional Commissioner (Appeals) was never delivered to the appellant - appellant has been providing space for installing the hoardings to the advertising agency and charged advertisement tax for the same - Held that:- admittedly copy of the order was sent to the appellant by speed post. Section 27 of General Clauses Act provides that presumption of service would be raised when document is delivered by registered post. So far as the speed post is concerned, the provision has been made in the Central Excise Act, 1944, however, no such corresponding amendment was made in the General Clauses Act. Resultantly, no presumption can be raised in respect of document sent by speed post. However, under Section 114 of Evidence Act, such presumption can be raised against the appellant that when the order was sent to them by speed post, it would have been reached in ordinary coarse of nature, and therefore, burden lies on the appellant to prove that speed post sent by the respondents was not delivered to them as provided for by sub Section 2 of Section 37-C of the Act. When no such evidence is produced by the appellant, it may be presumed that the speed post must have reached the office of the appellant in due course.
It was observed by the Appellate Authority that cross-objection was not filed within 45 days of the notice received by them. According to provisions of Order 41 Rule 22 of CPC, cross objections should be filed after receiving notice of appeal within 30 days. However, in the Act, no such time period is prescribed. Time fixed by the learned Appellate Authority was fixed by him and there was no statutory provisions against this time period fixed by him and accordingly, when the authorized representative appeared before the Appellate Authority on 26.11.2010 and he was granted time by the authority to file cross-objections within one week, which was filed on 03.12.2010, and which were taken on record, it cannot be said that cross objections filed by the appellant was not filed in time and were time barred. Accordingly, in considered opinion of this Court, the Appellate Authority and the learned appellate Tribunal erred while taking the cross objections also as time barred. Hence, this appeal is partly allowed in respect of cross objections filed by the appellant and dismissed in respect of appeal filed by the appellant. - Appeal disposed of
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2016 (8) TMI 789 - CESTAT NEW DELHI
Valuation - cast articles cleared to independent buyers as well as other interconnected parties, at the same assessable value - Held that:- the Larger Bench of the Tribunal in the case of Ispat Industries Ltd. vs. CCE [2007 (2) TMI 5 - CESTAT, MUMBAI] has observed that where the goods are sold to related persons as well as to independent buyers, the transaction value charged to the independent buyers shall apply in the case of supply of goods to the related person also. The said decision stand followed in the recent judgment of the Tribunal in the case of Handy Wires Pvt. Ltd. vs. Commissioner of Central Excise, Nagpur [2015 (11) TMI 1241 - CESTAT MUMBAI]. Examining an identical situation, the Tribunal observed that the goods sold to interconnected undertaking have to be assessed to duty at the same value at which the said goods are sold to independent whole sale buyers. - Decided against the Revenue
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2016 (8) TMI 788 - CESTAT NEW DELHI
Captive consumption - whether transfer of the moulds to appellant’s other unit violate the condition in the Notification No. 67/95-CE dated 16.03.1995 to the effect that the moulds enjoy the exemption as long as they are used within the factory of manufacture - Held that:- the condition specified in the notification is not violated inasmuch as the factory itself has moved to Noida and since the mould in question continues to be used within the factory it cannot be said that the moulds have been cleared out of the factory. The fact also remains that in case duty is paid on the moulds on its transfer to Noida, such duty will be available as cenvat credit to the recipient factory inasmuch as the original and the destination factory belong to the same manufacturer and in fact since the former merged with the later, the whole exercise will lead to the revenue neutral situation and no useful purpose will be served while charging duty for such clearances. - Decided in favour of appellant
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2016 (8) TMI 787 - CESTAT CHANDIGARH
Cenvat credit - received only invoices without the receipt of inputs in question - clearance of defective CTD bars and rods by showing them as scrap which amounted to almost 80% of the production - Held that:- there is nothing on record to show that the goods were not actually received by the present appellant, which stands duly reflected by them in their RG-23 Part A register and stand utilized by them in the manufacture of their final product. Further, as seen from the impugned order of the Commissioner (Appeals), he has observed that there is circumstantial evidence available on record to indicate that the defective rounds produced by the manufacturer were not scrap. Such circumstantial evidence referred to by the Commissioner (Appeals) is the fact that the original manufacturing unit has shown more clearance of defective rounds than the prime quality rounds. There is otherwise no evidence to show that such excess cleared defective rounds were received by the present appellant. They may have received defective goods/ scrap, which was admittedly defective and was capable of melting in the furnace. In the absence of any evidence to the contrary, it is found that the denial of Cenvat Credit on the basis of investigations conducted at the third party end cannot be adopted as the sole basis for denial of credit. - Decided in favour of appellant
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2016 (8) TMI 786 - CESTAT NEW DELHI
Excisability - Dolochar - Dolochar arises as a combination of Iron Ore, Dolomite and unburnt pieces of coal during the process of manufacture of Sponge Iron - Held that:- the issue is no longer res-integra, as is decided by the Hon'ble Supreme Court in the favour of appellant in the case of Union of India vs. Ahmedabad Electricity Company Ltd. [2003 (10) TMI 47 - SUPREME COURT OF INDIA] which has been followed by the Tribunal in the case of H.E.G. Ltd. vs. CCE, Raipur. - Decided in favour of appellant
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2016 (8) TMI 785 - CESTAT NEW DELHI
Cenvat credit - availed CENVAT credit on capital goods and services received by them during the period 01/04/2005 to 28th of February 2006 - asbestos cement sheets were chargeable to nil rate of duty up to 28/02/2006 but w.e.f. 1st of March 2006 the goods became chargeable to duty at the rate of 8% - Held that:- there is no doubt that at the time of receipt of capital goods, the final products of the appellant were chargeable to nil rate of duty and therefore these capital goods fall within the purview of sub rule 4 of rule 6 and hence not entitled to Cenvat credit. The only weak argument advanced by the appellant is that the credit has been taken in the same financial year in which their final products became dutiable. We find that this is not a valid reason to permit such credits. By applying the decision of Larger Bench of this Tribunal in the case of Spenta International Ltd versus Commissioner of Central Excise, Thane [2007 (8) TMI 25 - CESTAT, MUMBAI], since on the date of receipt of capital goods, the final products were chargeable to nil rate of duty, the appellant becomes in-eligible for availing the credit of duty paid on the capital goods. - Decided against the assessee.
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2016 (8) TMI 784 - CALCUTTA HIGH COURT
Whether in the earlier proceedings penalty was imposed on the appellants for concealment of particulars of their duty liability - clandestine despatch of finished goods without payment of duty - habitual in committing offence - Held that:- it is clear from the admission of the appellant no.2 in 2010 proceedings that there was concealment of particulars of duty liability which, by order dated 4th January, 2011 passed under section 32F(5), led to the imposition of penalty for concealment of duty liability of the order dated 27th August, 2014. Since it is evident from the order dated 4th January, 2011 that penalty was imposed on the appellants for concealment of particulars of their duty liability which had been taken note of and discussed exhaustively in the order dated 27th August, 2014 passed by the Commission, we are of the view that the learned Single Judge was justified in holding that “ An element of mens rea was fastened to this petitioner company upon the order of the Settlement Commission being passed on January, 4, 2011.” In this regard it is noteworthy that the “Explanation” to section 32-O(1)(i), inserted by Finance (No.2) Act, 2014, laying down that “concealment of particulars of duty liability relates to any such concealment made from the Central Excise Officer” is in aid to and is evidently in consonance with the provisions contained in section 32-E(1) which provides “An assessee may, in respect of a case relating to him, make an application, before adjudication, to the Settlement Commission to have the case settled, in such form and in such manner as may be prescribed and containing a full and true disclosure of his duty liability which has not been disclosed before the Central Excise Officer having jurisdiction,….”
Whether in view of the order dated 27th August, 2014, rejecting the application for settlement, the settlement proceedings stood abated under section 32F(1) and if so, whether the appellants are entitled to have their case adjudicated before the appropriate authority - Held that:- it is evident that by order dated 27th August, 2014 the Commission had rejected that application for settlement for lack of jurisdiction. Hence, on 27th August, 2014, under Section 32F(1) the proceedings stood abated. Since the appellants cannot be without a remedy, the show cause notice dated 6th February, 2014 has to be adjudicated under the Act. Hence, the appeal is dismissed. The judgement of the learned Single Judge is hereby affirmed. Accordingly, no order is passed on the application and the same is disposed of. However, since the proceedings before the Commission have abated, as submitted on behalf of the appellants, they are at liberty to pursue the adjudication proceedings before the appropriate authority by filing reply to the show cause notice dated 6th February, 2014. If reply is filed, the adjudicatory authority shall proceed expeditiously in accordance with law after complying with the principles of natural justice. - Decided against the appellant
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2016 (8) TMI 783 - CESTAT CHANDIGARH
Demand of duty alongwth interest and penalty - Reversal of Cenvat credit - Zinc Ash under Rule 3(5) of the Cenvat Credit Rules, 2004 - Held that:- the respondent has never imported Zinc Ash and the Zinc Ash has emerged during the course of processing of Zinc Skimmings, therefore, the provisions of Rule 3(5) of the Cenvat Credit Rules, 2004 are not applicable to the facts of this case as the respondent has not cleared Zinc Skimmings as such. Further, the Ld. Commissioner (A) in the impugned order has observed that the respondent has taken the cenvat credit only on the metallic part taken out from the Zinc Skimmings after process and no cenvat credit has been taken attributable to Zinc Ash. In these circumstances, there is no case of the revenue to attract Rule 3(5) of the Cenvat Credit Rules, 2004. - Decided against the Revenue
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2016 (8) TMI 782 - CESTAT NEW DELHI
SSI Notification No. 9/99-CE - entitlement for benefit - use of brand name of foreign manufacturer - Held that:- as it is seen that, the benefit of small scale exemption notification stands extended to an assessee, where he was using the brand name of foreign manufacturer, which was assigned to the Indian manufacturer under an agreement. Inasmuch as the issue is decided by the Supreme Court in the case of Commissioner of Central Excise , Bangalore Vs. Otto Bilz (India) Pvt. Ltd. [2015 (10) TMI 2149 - SUPREME COURT], no merits found in the present appeal of the Revenue. - Decided against the Revenue
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2016 (8) TMI 781 - CESTAT CHANDIGARH
Demand - 10% of value of job work goods - Rule 6(3) of the Cenvat Credit Rules, 2004 - non-maintenance of separate account for dutiable as well as exempted goods - Held that:- it is an admitted fact that the job work goods manufactured by the respondent are dutiable goods. The respondent is manufacturing only and only dutiable goods, therefore, the question of invoking the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004 does not arise at all. - Decided against the Revenue
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2016 (8) TMI 780 - CESTAT NEW DELHI
Demand - duty short paid - excess paid duty did not adjusted by the Revenue - Held that:- the issue is no longer res-integra. It is well settled that at the time of finalization of provisional assessment that the excess paid duty can be adjusted towards the duty short paid. Therefore, to arrive at final duty liability, adjustment of excess duty paid to the short payment have to be made. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 779 - CESTAT NEW DELHI
Valuation - adoption of higher value of goods - Commission not included in the assessable value - Held that:- it is found that the identical dispute was the subject matter in that case and it was held that even though duty was required to be paid on the goods exported, rebate of equal amount was available to the assessee so as reaching the revenue neutral situation. In such a scenario, the confirmation of duty was set aside. - Decided in favour of appellant
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2016 (8) TMI 778 - CESTAT HYDERABAD
Demand - recovery of credit availed - irregularly availed 100% CENVAT Credit in the same year on capital goods viz: Ingot moulds, Forged Rolls & Metal Rolls for the period 2005-06, 2006-07 & 2007-08 - Held that:- the appellant is eligible to avail 50% credit in the subsequent year. In such case, there is no revenue loss and the availment of 100% credit in the same year of purchase is only a procedural lapse. The appellant has already paid the interest and penalty which in my opinion would suffice as compensation for the procedural lapse committed by them. In the present case there is no finding that appellant resorted to any contumacious conduct of reversal of irregular credit, on pointing out by department and had later on availing the same in the subsequent financial year. Further, as the appellant was eligible to avail the balance 50% in subsequent year, it cannot be said that there was any dishonest intention. The appellant prays to restore the adjudicating authority's order dated 29.10.2009. Taking into account the evidence and the fact that appellant has paid the interest and penalty, I am of the view that the demand/recovery of credit availed is not sustainable. - Decided in favour of assessee
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2016 (8) TMI 756 - CESTAT NEW DELHI
Classification - activated carbon fabrics - whether to be classified under heading 5911 as "Textile products and articles , for technical use as per appellant or under 3802 as 'activated carbon' as per Revenue - Held that:- inasmuch as the goods continued to remain a fabric, it merits classification under section XI of Central Excise Tariff Act dealing with textile and textile articles. Hence, appropriate classification will be under Chapter 59 dealing with impregnated, coated, covered or laminated textile fabric; textile articles of a kind suitable for industrial use. From the reported use of the product, it is found that it is covered by Note 7 to Chapter 59 which attracts textile fabrics of a kind use for technical purposes falling under 5911. - Decided in favour of appellant
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