|
Advanced Search Options
Central Excise - Case Laws
Showing 21 to 40 of 317 Records
-
2016 (8) TMI 1213
CENVAT credit - input services - repair of staff quarters, lighting works, water works, construction of wagon loading platform, works at loading shed, retreading of dumper tyres, garage maintenance, road cleaning, survey work of mines, mud cleaning works, railway sliding works, maintenance at cement units. etc. - denial on account of nexus - Held that: - in a plethora of judgments, the Tribunal as well as several High Courts have held that almost all activities related to business of manufacture would be covered by the definition of input service during the period prior to 01-04-2011 - credit allowed - appeal dismissed - decided against Revenue.
-
2016 (8) TMI 1189
CENVAT credit - various input services - Held that: - the various input services on which CENVAT credit has been denied has been allowed by various decisions of the Tribunal and the High Courts - the services relate to the business of the appellant and also fall within the definition of input services as contained in Section 2(l) - appeal allowed - decided in favor of assessee.
-
2016 (8) TMI 1142
The controversy is squarely covered by the judgment M/s. Garden Silk Mills Limited v. The Union of India & Others [2016 (7) TMI 1021 - BOMBAY HIGH COURT] - the Deputy Commissioner was in complete error in not following and applying these binding judgments of this Court. They have not been followed and applied on the specious plea that the Revenue has carried the matter in the Hon’ble Supreme Court of India and it is pending therein - We do not approve of such a stand of the Revenue/respondents for the simple reason that a matter being pending in the Hon’ble Supreme Court does not mean the binding effect of this Court’s order is lost or wiped out. We are, therefore, of the clear view that the Deputy Commissioner of Service Tax-II (Refund), Mumbai/respondent No. 3 to this writ petition, was in total error in refusing to abide by the binding judgment and order of this Court - petition allowed.
-
2016 (8) TMI 1127
Denial of CENVAT credit on capital goods - tyres and dumpers - “capital goods” in terms of Rule 2(a) of Cenvat Credit Rules, 2004 - whether denial of cenvat credit on the ground that tyres and dumpers are not capital goods justified? - Held that: - the decision in the case of MADRAS CEMENTS LTD. Versus COMMISSIONER OF C. EX., CHENNAI [2010 (7) TMI 179 - SUPREME COURT] relied upon where it was held that capital goods used in captive mines are eligible for Cenvat Credit.
The respondent manufacturer is having their own captive mine which constitute one integrated unit. The factory of manufacturer should, by extension, mean the captive mine of the manufacturer from where the ores are sourced. The material handling equipments are for moving the raw material which are integrally connected with the manufacture of the final product.
The Board vide Circular dated 2.12.1996 clarified that all parts, components, accessories which are to be used with capital goods and classifiable under any Chapter heading are eligible for Modvat Credit. It is to be noted that the application of scope of capital goods are not different from the erstwhile Modvat Rules in the present Cenvat Credit Rules, 2004.
The decision in the case of MALABAR CEMENTS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, COCHIN [2001 (12) TMI 737 - CEGAT, BANGALORE] where the Tribunal allowed the cenvat credit on dumpers as capital goods under erstwhile Rule 57Q [similar to Rule 2(a) of Cenvat Credit Rules, 2004].
CENVAT credit allowed on tyres and dumpers - appeal rejected - decided against Revenue.
-
2016 (8) TMI 1113
Cenvat credit - duty paid goods cleared on their own invoices received back due to defect/rejection - Cenvat credit took on the returned goods for reprocessing during 14/7/2001 to 31/3/2005 on the strength of their own invoices - procedure laid down under Rule 173H of CER, 1944 read with Rule 16 of CER, 2002 viz., non-maintainance of separate account for returned goods, no proper documents evidencing payment of duty on rejected goods and no permission was taken from the department before bringing such goods into their factory has not been followed.
Rule 16 of Central Excise Rules, 2002 provides that on the duty paid goods brought in the factory, the assessee can avail the Cenvat Credit as if there is receipt of input. Rule does not prohibit taking credit on the assessee’s own invoices. The appellant's own invoice in present case is duty paid invoice therefore whether the invoice is of appellant's own or issued by person returns the goods back, it is one and the same. It is immaterial who has issued invoice but important is whether invoice is duty paid invoice. Therefore irrespective of fact whether the invoices are of appellant or otherwise if duty paid goods is brought in the factory of the assessee credit can be allowed.
As regard the contention of the show cause notice as well as adjudication order that the procedure has not been followed, on going through the aforesaid Rule 16, I find that no procedure is prescribed for taking credit on the returned goods, therefore only requirement is duty paid goods should be brought in the factory and same should be recorded in their books and at the time of re-issue of such repaired/reprocessed goods proper duty has to be paid therefore no procedure such as making application or taking permission is required for compliance of Rule 16. Therefore, in my view Cenvat credit availed on the returned goods is allowable. - Decided in favour of appellant
-
2016 (8) TMI 1112
Whether exemption extended under Notifications 28/2010-CE and 29/2010-CE are applicable only with regard to Clean Energy Cess levied on coal as contended by department or whether the said exemption will also be applicable with regard to Central Excise Duty levied on coal as contended by the appellant - quantity of Coal removed during periods under Section 11A of the Central Excise Act, 1944 on payment of 5% Excise Duty.
Held that:- we find ourselves in agreement with the submission of the Revenue that Section 83(5) of Finance Act, 2010 clearly lays down that Clean Energy Cess shall be in addition to any Cess or Duty leviable on the goods specified in the Tenth Schedule or under any other law for the time being in force, which shows that Clean Energy Cess is only one of the duties of Excise leviable on coal, limited to the said Tenth Schedule. Hence, an exemption from E. Cess and S.H.E. Cess on Clean Energy Cess does not mean exemption from E. Cess and S.H.E. Cess on Central Excise Duty. Substance is also find in the argument that since Basic Excise Duty on coal was introduced only w.e.f 2011, it is incongruous that a notification issued in 2010 can exempt E. Cess and S.H.E. Cess on Basic Excise Duty, for the simple reason that E. Cess and S.H.E. Cess has to be calculated on the aggregate of Central Excise Duty.
The Government found it necessary to issue a separate Notification No. 17/2015-CE to rescind erstwhile Notification No. 28 and 29/2010-CE, in our opinion, vindicates the conclusion that the impugned exemption from E. Cess and S.H.E. Cess was initially available only to Clean Energy Cess, w.e.f. 22.06.2010, and that E. Cess and S.H.E. Cess was very much imposable on Central Excise Duty till the amending Notification 14 & 15/2015-CE dated 01.03.2015. Even the CBEC had clarified vide Circular 354/42/2014-TRU 22nd September, 2015 that the exemption from Education Cess and S.H.E. Cess under Notifications No. 28/2010-CE and 29/2010-CE both dated 22.06.2010 (prior to 01.03.2015), is applicable only in respect of Clean Energy Cess leviable on Coal under Tenth schedule to Finance Act, 2010, hence Education Cess and S.H.E. Cess shall be leviable on Excise Duty on Coal.
The exemption of E. Cess and S.H.E. Cess vide Notifications No.28/2010-Central Excise and No. 29/2010Central Excise, both dated 22nd June, 2010, also meant that the Notification simultaneously exempted E. Cess and S.H.E. Cess on duty of excise. If this was the case, there would have been no need for the Government to issue, after four years, Notification No. 15/2015-CentraI Excise dated 1st March, 2015 specifically exempting duty of excise from E. Cess and S.H.E. Cess, on all excisable goods. Only because all excisable goods now stood exempted from E. Cess and S.H.E. Cess w.e.f 1st March 2015, there arose the necessity for the Government to issue Notification No. 17/2015-Central Excise dated 1st March, 2015 rescinding Notifications No. 28/2010-Central Excise and No. 29/2010-Central Excise, which had already exempted the levy of Education Cess and Secondary & Higher Education Cess on the Clean Energy Cess leviable on coal much earlier on 22nd June, 2010. Therefore, we have no difficulty in concluding that exemption from E. Cess and S.H.E. Cess under Notifications No. 28 and 29/2010 both dated 22.06.2010 is applicable only with respect to Clean Energy Cess levied under the Finance Act, 2010, but will not be applicable with respect to Central Excise duty levied on coal w.e.f 01.03.2011. - Decided against the appellant
-
2016 (8) TMI 1111
Unjust enrichment - Refund claim - amount deposited by them on the direction of the higher judicial forum for hearing and disposing of the appeal filed by the appellant in respect of a period beyond limitation - Held that:- the judgment of the Hon’ble Delhi High Court in the case of Commissioner of Customs (I&G) v. Ericsson India Pvt. Ltd. [2013 (11) TMI 448 - DELHI HIGH COURT] very clearly lays down the law indicates that the amount deposited after the clearance of the goods, question of unjust enrichment does not arise. Therefore, both the lower authorities have erred in coming to a conclusion that the refund claim is hit by bar of unjust enrichment. Even the reliance by the Revenue as to the applicability of the unjust enrichment to captive consumption is correct in the circumstances in which it was delivered but in the present case, the facts are totally different, the amount was deposited by the appellant on the direction of the appellate authorities. Therefore, the impugned order is unsustainable and liable to be set aside. - Decided in favour of appellant with consequential relief
-
2016 (8) TMI 1110
Cenvat credit - welding electrodes - they are general purpose items used in various work shops of the appellant and, as such, has no connection with their manufacturing activity - Held that:- the issue has been settled in favour of the Assessee in various judicial pronouncement which are being followed by the Tribunal. By applying the decision of Tribunal in the case of Lafage India Pvt. Ltd. vs. CCE, Raipur [2016 (8) TMI 1012 - CESTAT NEW DELHI] and in the case of Mangalam Cement Ltd. vs. CCE, Jaipur - I [2016 (8) TMI 593 - CESTAT NEW DELHI] by following the decision of Hon’ble Chhattisgarh High Court in Ambuja Cements Eastern Ltd. vs. CCE, Raipur [2010 (4) TMI 429 - CHHAITISGARH HIGH COURT], i find no merit in the denial of credit on these welding electrodes, so the impugned order is not sustainable on this issue.
Cenvat credit - light fittings - these high-bay lighting systems were mounted on civil structures to illuminate the factory premises - Held that:- the admitted fact is that they are classified under the eligible Chapter Heading (Chapter 84, 85 and 9405) of the Tariff and are used by the manufacturer in the factory of manufacture. The items are light structures, lamps, high mast light, tubes/glass and fixtures. The eligibility for credit is thus satisfied. I find no substance in the reasoning of the Original Authority regarding light fittings becoming part of civil structure. I find this by itself is not a ground for denial of credit. Admittedly the various light fittings and fixtures were brought into the factory after duty payment and were installed for the intended purposes. To call these items as immovable property is without basis. These goods are used within the building premises, mills and shops to enhance illumination. This enables round the clock operation of the assessee. - Decided in favour of appellant
-
2016 (8) TMI 1109
Refund claim - period of limitation - duty paid under protest - appellant stated that the credit on certain services are at the moment under judicial scrutiny and keeping in mind the instructions of the Revenue they had reversed the credit - Revenue argued that letter of protest has been written to Superintendent of Customs and not to Superintendent of Excise - Held that:- I find that the letters dated 26/03/2008 and 03/07/2009 were addressed to the Superintendent of Excise & Customs and to the Commissioner of Central Excise, respectively. I find that the letters are in the nature of protest though the word protest has not been mentioned in the said letters. In these circumstances, I hold that reversal has made protest and the limitation clause cannot be invoked against the appellant. - Decided in favour of appellant
-
2016 (8) TMI 1108
Cenvat credit - Special denatured spirit received from M/s.Hanil Era Textile Ltd. - M/s.Hanil Era Textile Ltd. had fraudulently taken excess Cenvat Credit by showing more Cenvat Credit than available as per law, as a closing balance at the end of the month of July 2008 and used the same to pay duty for clearance of special denatured sprit to the appellant - Held that:- there is no evidence produced to assert that the appellants knew that the supplier of goods had wrongly availed Cenvat Credit. The decision of the Tribunal in the case of RS Industries Vs. CCE, New Delhi [2002 (11) TMI 169 - CEGAT, NEW DELHI] squarely covers the issue in this case, therefore, by relying on the same, Cenvat credit is not allowed. - Decided in favour of Revenue
-
2016 (8) TMI 1107
Whether the entire consideration received by the manufacturing unit in respect of goods cleared clandestinely has to be treated as cum-duty price and the duty required to be paid by them needs to be re-quantified - Clendestine removal - Held that:- in view of the decision of Hon'ble supreme Court in the case of Amrit Agro Industries Ltd. vs. CCE [2007 (3) TMI 14 - SUPREME COURT OF INDIA], the department itself accepted that the normal price includes the duty element and as such the entire consideration has to be considered as inclusive of excise duty. Therefore the demand confirmed against the appellant is required to be recomputed by taking the entire value of the goods as being cum-duty. For the said purpose the matter is being remitted to the adjudicating authority for doing the needful.
Imposition of penalty on proprietor - Rule 26 of the Central Excise Rules, 2002 - Appellant contended that inasmuch as penalty already stands imposed upon the proprietary unit, the imposition of separate penalty upon the Proprietor is not called for - Held that:- by following the decision of Tribunal in the case of Royal Springs vs. CCE, New Delhi-I [2002 (4) TMI 547 - CEGAT, NEW DELHI], the penalty imposed upon the Prop. was set-aside, the said decision stands confirmed by the Hon'ble Supreme Court in Commissioner vs. Royal Springs [2002 (10) TMI 788 - SUPREME COURT]. The issue is well settled and does not require the support of any further decisions. Therefore, the imposition of penalty upon Sh. Kewal Krishan Ajimal, Prop. of M/s Vishavakarma Hydraulic Works is set aside. - Appeals disposed of
-
2016 (8) TMI 1106
Demand - fraudulent Cenvat credit availed on the invoices issued by M/s. Ispat Industries Ltd - Held that:- On going through decisions of this Tribunal in cases of Amar Ispat Pvt Ltd Vs. Commissioner of Central Excise Thane-I, it is found that facts, of other cases, evidences and modus operandi are more or less same in these decisions therefore the ratio of the various decisions of Tribunal are squarely applicable in the present case. Therefore it is established that the appellant have availed Cenvat credit fraudulently without receipt of the goods. - Decided against the appellant
-
2016 (8) TMI 1105
Refund claim - unutilized credit lying in the Cenvat account due to closure of the factory - Cenvat got accumulated due to exemption under Notification No. 30/2004-CE dated 9.7.2004 and the goods have been cleared for export - Held that:- this issue has been considered by various High Court’s judgments as well as two Larger Bench decisions of this Tribunal. It is found that the Ld. Commissioner (Appeals) in the impugned order has not dealt with any of such judgments. Therefore the matter need reconsideration in the light of the judgments of Larger Bench in the case of Gauri Plasticulture (P) Ltd. Vs. Commissioner of Central Excise, Indore [2006 (8) TMI 225 - CESTAT, MUMBAI], Steel Strips Vs. Commissioner of C.Ex., Ludhiana [2011 (5) TMI 111 - CESTAT, NEW DELHI] and Karnataka High Court judgment in the case of Union of India Vs. Slovak India Trading Co. Pvt. Ltd. [2006 (7) TMI 9 - KARNATAKA HIGH COURT]. - Appeal allowed by way of remand
-
2016 (8) TMI 1104
Cenvat credit - fraudulently availed on the dealers’ invoices without receipt of the inputs covered therein - appellant submitted that the goods were purchased, received and used in the appellant's factory as per the various records maintained by them and the goods covered by the invoices were received by the appellants - Held that:- that the department’s whole case is based on transporter’s statement and statement of loading clerk who stated that the goods were not transported to Pune but to Nagpur. I find that mere statement is not sufficient to establish charge of fraudulent cenvat credit. Whether the goods were physically received or otherwise by the appellants is a positive act, which must be proved with tangible evidence beyond any doubtand not with circumstantial evidences.
In the present case charge of non receipt of goods was made against the appellant. The director in his statement categorically stated that they have received the goods covered under the sale invoices of dealers, the entries of such receipts were made in the stock account i.e. Form IV register and also in the accounts purchase ledger, the payments of the said purchases were made through cheques. This statement of the director could not be negated by the department. The charge of non-receipt of goods is only on the statements of transporter and loading clerk of the weigh bridge. The said statements can only be relied upon only if the same is corroborated by independent and cogent evidence, which department failed to adduce. Moreover, when this sole evidence was relied upon, which is contradictory to the statement given by the director of the appellants. In such case the department must have allowed the cross examination of the transporter, which department failed to do. Therefore statements of third person without cross examination and without support of corroborative evidence can not be used against the appellants. Hence, the order passed by the adjudicating authority is legal and proper and the impugned order is unsustainable. - Decided in favour of appellant
-
2016 (8) TMI 1103
Liability of interest and penalty - Suo moto abatement - regularized by the Commissioner though at later stage but the grant of abatement should be considered deemed to have been granted when the appellant has suo moto taken the abatement - Held that:- the appellant had taken the suo moto abatement by paying less duty to that extent towards the closure of the factory from 15.7.1999 to 23.7.1999 but for the same period the Commissioner vide order had allowed abatement. In this peculiar fact I am of the view that the abatement suo moto taken by the appellant was knowingly allowed by the Commissioner. Therefore the suo moto abatement has been regularized by the Commissioner’s order. The abatement stand granted from the date of suo moto abatement taken by the appellant. I therefore do not see any reason why the interest is payable, consequently penalty is also not imposable. Therefore, the interest and penalty is set aside. - Decided partly in favour of assessee
-
2016 (8) TMI 1102
Demand of duty - Rule 8(3A) of Central Excise Rules, 2002 - Held that:- we find that the Tribunal by following the judgements of the Hon'ble Gujarat and Hon'ble Madras High Courts held that demand of duty under Rule 8(3A) is unsustainable. Both the Hon'ble Gujarat High Court and Madras High Court have held that condition contained in Rule 8 (3A) of Central Excise Rules 2002 for payment of duty "without utilisation of cenvat credit" is contrary to the scheme of availment of cenvat credit under CCR and the said Rule 8(3A) is arbitrary and violative of Article 14 of the Constitution. Accordingly, the Hon'ble High Court has struck down the Rule 8(3A) as unconstitutional. Therefore, in view of the same, the impugned order is set aside. - Decided in favour of appellant with consequential relief
-
2016 (8) TMI 1101
Condonation of delay - 1802 days - appellant is a Government department and had to seek prior approval from the higher authorities and the matter was also under consideration by the Ministry of Home Affairs, so the appeal could not be filed within the stipulated time. Also were under the impression that the appeal filed against OIO No. 8/2011 dated 25.02.2011 would cover the issue involved in the present impugned order and hence, did not file a separate appeal against the impugned order.
Held that:- by following the decision of Tribunal in their own case [2013 (11) TMI 100 - CESTAT MUMBAI] wherein the Mumbai Bench of the Tribunal being satisfied with the very same reason and condoned the delay of 826 days, delay is condoned in this appeal also. - Decided in favour of appellant
-
2016 (8) TMI 1100
Refund claim - acumulated Cenvat credit due to closure of factory - Rule 5 of CENVAT Credit Rules, 2004 - Held that:- it is found that in the various judgements, Courts have held that accumulated credit on account of closure of factory can be claimed as refund under Rule 5. Therefore, in view of the above, refund under Rule 5 is admissible for accumulated credit on account of closure of factory. - Decided in favour of appellant with consequential relief
-
2016 (8) TMI 1099
Demand of differential duty - duty short paid by showing the lower prices to their products which were cleared to few buyers than the prices they have charged to other buyers - Held that:- we find that the first appellate authority has not considered the fundamental / factual matrix as to that during the period in question; different prices could be charged to different class of buyers. In order to appreciate the factual matrix, we deem it fit to set aside the impugned order and remand the matter back to the first appellate authority to reconsider the issue afresh after following the principles of natural justice. - Appeal allowed by way of remand
-
2016 (8) TMI 1071
Refund claim - excise duty paid on additional discounts and turnover discounts - eligibility for deduction from the wholesale price for determination of value under Section 4 of the Central Excises & Salt Act, 1944 - Held that:- this Court by its judgment dated 11.03.1997 in Addison & Co. Ltd. Vs. Collector of Central Excise, Madras Vs. Collector of Central Excise, Madras [1997 (3) TMI 98 - SUPREME COURT OF INDIA] held that the turnover discount is an admissible deduction. This Court approved the normal practice under which discounts are given and held that the discount is known to the dealer at the time of purchase. The Additional Solicitor General submitted that any credit note that was raised post clearance will not be taken into account for the purpose of a refund by the Department. We do not agree with the said submission as it was held by this Court in Union of India Vs Bombay Tyre International Pvt. Ltd. [1983 (10) TMI 51 - SUPREME COURT OF INDIA] and [1983 (11) TMI 70 - SUPREME COURT OF INDIA] that trade discounts shall not be disallowed only because they are not payable at the time of each invoice or deducted from the invoice price. It is the submission of the Assessee that the turnover discount is known to the dealer even at the time of clearance which has also been upheld by this Court. It is clear from the above that the Assessee is entitled for filing a claim for refund on the basis of credit notes raised by him towards turnover discount.
Unjust enrichment - incidence of duty was originally passed on to the buyer - Held that:- there is no material brought on record to show that the buyer to whom the incidence of duty was passed on by the Assessee did not pass it on to any other person. There is a statutory presumption under Section 12-B of the Act that the duty has been passed on to the ultimate consumer. It is clear from the facts of the instant case that the duty which was originally paid by the Assessee was passed on. The refund claimed by the Assessee is for an amount which is part of the excise duty paid earlier and passed on. The Assessee who did not bear the burden of the duty, though entitled to claim deduction, is not entitled for a refund as he would be unjustly enriched.
Refund claim - on the basis of credit notes raised by the Assessee subsequent to the sale/removal of goods - trade discounts given to its buyers including the component of excise duty - Held that:- the appeals were allowed, as being squarely covered by the judgment of the Madras High Court in Addison and Company Ltd., Madras Vs. Collector of Central Excise, Madras [1997 (3) TMI 98 - SUPREME COURT OF INDIA].
Refund claim - job-work - prior to 11.06.2001 the CENVAT credit admissible on the declared inputs used in the manufacture of process of man-made fibre was 45 per cent and the net duty payable on the fibre was 55 per cent of the effective duty - Assessee continued to pay the effective duty at 55 per cent for a short period between 11.06.2001 to 13.06.2001 after being a notification was issued on 11.06.2001 increasing CENVAT credit from 45 per cent to 50 per cent which resulted in the net duty payable being 50 per cent - effective duty of excise is 16 per cent and the duty payable from the personal ledger account prior to the notification dated 11.06.2001 was 8.8 per cent and after 11.06.2001 the duty payable is 8 per cent - Held that:- we have already held that in the claim for refund of excess duty paid can be allowed only in case where the burden of duty has not been passed on to any other person, which includes the ultimate consumer as well. The findings in the Order-in-Original and the Order-in-Appeal are that the excise duty paid originally at the rate of 8.8 per cent was passed on from the Assessee-processor to the owner of the fabric and later to the customers. The point in this Appeal is also identical to that of Civil Appeal No. 7906 of 2002. The above appeal of the Revenue is allowed.
Refund claim - excess excise duty paid at the rate of 18.11 per cent instead of 9.20 per cent - Assessee initially passed on the duty incidence to its customers. Later the Assessee returned the excess duty amount to its buyers which was evidenced by a certificate issued by the Chartered Accountant - Held that:- except for a factual dispute about the genuineness of the certificate issued by the Chartered Accountant and the credit notes raised by the Assessee regarding the return of the excess duty paid by the Assessee, there is no dispute in this case of the duty being passed on to any other person by the buyer. As it is clear that the Assessee has borne the burden of duty, it cannot be said that it is not entitled for the refund of the excess duty paid. In view of the facts of this case being different from Civil Appeal No. 7906 of 2002, the appeal preferred by the Revenue is dismissed. - Decided partly in favour of Revenue
........
|
