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Central Excise - Case Laws
Showing 41 to 60 of 317 Records
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2016 (8) TMI 1070
Refund claim of interest paid for the delay in discharging adjudication levies imposed on them - liability to pay interest under Section 11AB of the Central Excise Act 1944 - Held that:- the impugned order is not sustainable in law on the ground that interest cannot be demanded from the appellant under Section 11AB which was never resorted to in the show-cause notice and in the Order-in-Original. All along the proceedings the case of the department was that the appellant is liable to pay interest under Section 11AA and not liable to pay interest under Section 11AB of the Central Excise Act 1944. The impugned order setting up a new case on behalf of the Revenue is not permissible under law as held by various judgments. Similarly the Board's circular dated 26.08.2002 also clarified that Section 11AB can be invoked only in respect of the clearances made after 28.09.1996 irrespective of the date of passing of the adjudication order and admittedly the clearances in the present case were made during the period 1984-85 to 09.05.1989 which is much before 28.09.1996. Further the Board’s Circular is binding on the Revenue in view of the various judgments. - Decided in favour of the appellant with consequential relief
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2016 (8) TMI 1069
Invokation of extended period of limitation - appellant has wrongly arrived at the valuation of the pipes cleared by them on the cost construction method rather the appellant should have paid duty on the value of pipes as indicated in the contract - Held that:- the audit report contains a specific reference to the contract and on that basis it has arrived at the conclusion that the value of gunniting needs to be included in the assessable value. We find that the DGCEI in the impugned show-cause notice has also primarily relied on the contract. It has sought to recover duty on the basis of value of the goods shown in the contract. In these circumstances, we find that the documents on the basis of which the demand has been raised, i.e., the contract, was produced before the audit and examined by them. Having failed to raise this issue at the material time it cannot be said that the appellants had suppressed or mis-declared anything to enable the revenue to invoke extended period of limitation. Hence, it is not open to Revenue to invoke extended period of limitation. - Decided in favour of appellant
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2016 (8) TMI 1068
Validity of revisionary order passed by the revisionary authority - Exercise of revisionary powers - Whether can be exercised by the officer of same rank or not - Held that:- in view of the decision of Punjab and Haryana High Court in the case of M/s NVR Forgings vs Union of India and others [2016 (5) TMI 7 - PUNJAB AND HARYANA HIGH COURT] which was followed by this Court M/s Kent Malleables Private Limited vs Union of India and others, the Revisionary Authority had to be an officer of a higher rank than the appellate authority, whose order is impugned before the Revisionary Authority. Therefore, the impugned order passed by the Revisionary Authority is set aside. - Petition disposed of
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2016 (8) TMI 1067
Seeking provisional release of seized goods - modification in conditions imposed - Held that:- it is directed that the Petitioner shall be permitted to provisional release of the goods upon furnishing a bond for 100% of the full assessment value and, in view of the statement of the Petitioners, upon payment of the full duty, without prejudice to their rights and contentions in the further proceedings if any. - Petition disposed of
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2016 (8) TMI 1065
Whether Appellant M/s.Sai Electrocasting Ltd. (Now M/s.Super Smelters Ltd., Unit-2) has correctly taken Cenvat Credit on certain capital goods received in their factory premises along with duty paying documents - Held that:- in view of the settled proposition of law it cannot be held that Respondent had any mala fide intention to take wrong Cenvat Credit when both capital goods and the duty paying documents, bearing the registration number of the supplier, were received by the Respondent and recorded in their statutory records credit was rightly taken. Further as Respondent did not have any mala fide intention while taking credit, therefore, extended period in demanding Cenvat Credit is not sustainable. Show cause notice in this case was issued on 22.09.2009 whereas the Cenvat Credit was taken in the month of May, 2007. Accordingly demand is also time barred. Therefore, there is no reason to interfere with the Order-in-Appeal. - Decided against the Revenue
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2016 (8) TMI 1064
Cenvat credit - Service tax paid on outward transportation - Whether the transportation of inputs/semi-finished goods/intermediaries by the appellant assessee to their manufacturing units falls under the ambit of the definition of input service defined in Rule 2(l) of CCR, 2004 or otherwise - Held that:- the decision of the Tribunal in the assessee's own case squarely covers the disputed issue. There cannot be a different view with regard to the eligibility of Cenvat credit of outward transportation is concerned. I also find from the CBEC letter cited by the appellant that in case of depot sale of goods, credit of service tax paid on the transportation of goods upto such depot would be eligible.
The amount of transportation charges passed on to the receiving unit is only ₹ 4,62,597/- which is a very small fraction of the total amount in dispute and the resultant service tax demand is only ₹ 13,848/- which can be disallowed in the hands of the appellant and the credit can be availed by the respective receiving unit. The impugned order passed by lower authorities are set aside except confirming demand of ₹ 13,848/- representing service tax amount passed on by appellant to the recipient unit. - Decided partly in favour of assessee
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2016 (8) TMI 1063
Duty liability - parts of dumpers and others imported, further repacked and labelled by the appellant and sold - whether the items/parts which are repacked are parts of automobiles to fall under Third Schedule and/or Section 4A Notification or not - Held that:- the appellant has no case on merits as the Tribunal in the case of Larsen and Toubro Ltd. vs. CCE [2015 (12) TMI 224 - CESTAT MUMBAI] has held that these items are liable for central excise duty as per Section 2(f)(iii) of the Central Excise Act, 1944. - Therefore, by applying the same appellant is liable to pay excise duty.
Cum duty benefit - goods considered as manufactured - duty demanded under old Section 4 as well as Section 4A of the Central Excise Act, 1944 - Held that:- there is no abatement given to the appellant in respect of the demands raised under Section 4A and no deductions have been given for the demands raised under Section 4 as the annexures indicate that the demands have been raised on the transaction value only. On this point, we agree with the appellant that the value which has been considered, if it is, the transaction value as per the invoice, then the benefit of cum duty has to be extended to the appellant, is the law settled by various High Courts and even in the case of Larsen and Toubro Ltd., the Bench had extended such a benefit. Having held so, we find that the quantification of the duty after extending cum duty benefit needs to be redone by the lower authorities.
Cenvat credit - CVD paid by the appellant on goods imported - Held that:- if the appellant is saddled with the central excise duty on the ground of deemed manufacture , the pars which have been imported by the appellant in bulk, if they have suffered CVD, the benefit of cenvat cannot be denied as the same parts are considered as manufactured on repacking and central excise duty is paid. Therefore, the appellant is eligible for cenvat credit of the CVD paid, subject to production of duty paying documents/bills of entry on the parts which were imported, repacked and sold.
Requantification of demands - Held that:- the adjudicating authority will also work out the interest liability on the main appellant. Since the penalty imposable is on the main appellant is dependent upon the quantum of duty liability, we also direct the adjudicating authority to consider the quantum of penalty to be imposed on the appellant after requantification of the duty liability.
Imposition of penalty - suppression of correct and germane facts concerning the manufacture of excisable goods - Held that:- we do not agree with the bland findings recorded by the adjudicating authority. As regards the appellant, T. Laxmi Narayana, General Manager (Finance) and Company Secretary of the main appellant, no role seems to have been attributed to him in any form in the impugned order for visiting him with personal penalty. In any case, we find that the issue involved in this case being in the nature of interpretation of the provisions of the Central Excise Act, personal penalty under Rule 26 is not imposable on the individual. Accordingly, we set aside the penalty imposed on the individual. - Appeal disposed of
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2016 (8) TMI 1062
Whether on conversion of DTA unit into a 100% EOU, the CENVAT credit lying as balance at the time of conversion can be availed and utilized by the 100% EOU or not - Held that:- in view of the various judgments which squarely covers the case of the appellant and this Tribunal has consistently held that the appellant is entitled to transfer the unutilized CENVAT credit on conversion from DTA to 100% EOU. therefore, in view of the settled position of law, the impugned order is not sustainable in law. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 1061
Eligibility for ssi exemption - brand name - word 'Swadeshi' appearing on the packing/wrapper of the soap manufactured by the respondent is the logo/brand name of Swadeshi Trading & Network Marketing Co. - Notifications 8/2001, 8/2002 and 8/2003 - Held that:- in the absence of any evidence which contradicts the factual finding of the first appellate authority, we have to hold that the first appellate authority was correct in coming to a conclusion of setting aside the order-in-original. - Decided against the Revenue
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2016 (8) TMI 1060
Cenvat credit - services availed for construction and repair of the workers quarters - Held that:- Hon’ble Bombay High Court in the case of Commissioner of Central Excise, Nagpur vs. Manikgarh Cement [2010 (10) TMI 10 - BOMBAY HIGH COURT] has held that rendering taxable services at the residential colony established by the assessee for the benefit of the employees, is not an activity integrally connected with the business of the assessee, therefore, do not constitutes input service so as to claim credit of service tax paid on such services under Rule 2(l) of the CENVAT Credit Rules, 2004. In view of the above observations Cenvat Credit of services used in maintenance, repair and civil construction used in the residential colony of the appellant is not admissible.
Cenvat credit - utilization of items in making of support structures of the machinery - Held that:- in view of the decision of Hon’ble Allahabad High Court in the case of Bajaj Hindusthan Ltd. v. UOI [2013 (9) TMI 24 - ALLAHABAD HIGH COURT], the Appellant is not eligible to credit on the items used in making of the support structures for the machines. It has also been admitted by the Appellant before the first appellate authority that Appellant does not have any evidence to the effect that items are used in the maintenance and repairs of capital goods.
Imposition of penalty - Held that:- it is observed that admissibility of Cenvat Credit on the impugned inputs and services has remained a disputable point. Therefore, penalty imposed by the lower authorities upon the appellant is not justified and is set aside when on the issue contrary case laws were existing. - Decided partly in favour of assessee
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2016 (8) TMI 1059
Classification - Lever Ayush Poshak Rasayan and Lever Rakshak Rasayan - Whether to be classified under chapter heading 2104.10 and/ or 2104 20 00 as per appellant or under chapter heading 2106 90 99 as the Food Supplement as per Revenue - Held that:- based on the quotes from Explanatory Notes to HSN, it is clear that the subject items are in the category of food supplements and are rightly classifiable under Chapter Heading 2106.90 99.
Invokation of extended period of limitation - Demand - differential duty for the period of five years preceding the relevant date - Held that:- Revenue has not produced any specific evidence(s) to prove that there has been deliberate suppression on the part of the assessee appellant with intention to evade payment of Central Excise duty. Therefore, the Revenue can charge differential duty only for the period of one year preceding to the relevant date and for quantification of said differential duty for period of one year chargeable from the appellant the matter deserves to be remanded to the original adjudicating authority. - Appeal partly disallowed and partly remanded back
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2016 (8) TMI 1058
Demand - clearance of final products i.e. base paints along with tinters and ready colour shades on stock transfer basis to the various depots on payment of duty on the MRP affixed on the packages - Whether process of mixing base paint with tinter amounts to manufacture - Held that:- there is no dispute that commodity paint is specified in the 3rd Schedule and assessed to duty under Section 4A on MRP basis. It is also not in dispute that the appellant is undertaking the process of mixing of paints with tinters and re-packing the same in unit containers and are labeling the same with MRP at their depots before dispatching them for sale to the ultimate consumers. These processes are clearly covered by sub-section (iii) of Section 2(f). Consequently, the process undertaken by the appellant would amount to manufacture and excise duty will need to be paid, at the stage of the depot. Therefore, the process of mixing base paint with tinter amounts to manufacture and is liable to payment of duty at the depot. - Decided against the appellant
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2016 (8) TMI 1057
Cenvat credit - parts, components and accessories of Turbo Generators-3 purchased for captive power plant - electricity generated from Turbo Generator was used in the manufacturing of dutiable goods for the two years; subsequently the excess electricity was sold to the State Government of Madhya Pradesh as per the contract - Held that:- the fact of Turbo Generator-3 being installed in the factory premises and electricity generated from therein having been consumed in the manufacturing of dutiable goods, denying cenvat credit of the Central Excise duty paid on such Turbo Generator-3 is not in consonance with the law. The factum of consumption of electricity generated within the factory partly and sold out partly is an accepted proposition in the law and cenvat credit cannot be denied is also decided by various case laws as cited by the appellant. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 1026
Cenvat credit - manpower supply services - availed the input service in their manufacturing activity - whether 75% of service tax payable by the respondent should be considered as ineligible for credit when the provider of service was to pay only 25% of service tax having been paid 100% of the service tax - Held that:- 75% of the service tax, which is sought to be denied is admittedly paid to the Government by the provider of service instead of recipient of service. In any case, the service tax has been discharged and denial of the credit on this ground is not sustainable. - Decided in favour of appellant
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2016 (8) TMI 1025
Cenvat credit - rubber used in the factory - rubber used in excess quantity than required - Held that:- it is now settled that if following three conditions are satisfied then Cenvat credit cannot be denied. The conditions are that that the inputs have suffered Central Excise duty, inputs have entered the factory premises and inputs are used in the manufacture of final products that they are not cleared as such. We do not find any allegation in the show cause notice that the appellants had not procured the inputs nor that the inputs had not suffered Central Excise duty nor that the input were cleared as such by the appellant. In fact there is no investigation in respect of above stated aspects as reflected in the impugned order.
The adjudicating authority was not empowered by law to decide optimum quantity of input admissible to be procured for manufacture of unit quantity of final product and therefore, law did not empower the adjudicating authority to decide how much is the excess quantity of inputs procured by the appellant. - Appeal disposed of
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2016 (8) TMI 1024
Valuation - Whether the payment of damages can be regarded as reducing the agreed price - liquidated damages payable by appellant for breach of contract condition - claimed as deduction for arriving assessable value - Held that:- by following the dictum of Larger Bench of Tribunal in the case of Commission of Customs & Central Excise, Hyderabad Vs Victory Electricals Ltd. [2013 (12) TMI 81 - CESTAT CHENNAI] whereby it was held that wherever the assessee, as per the terms of the contract and on account of delay in delivery of manufactured goods is liable to pay a lesser amount that the generically agreed price as a result of a clause (in the agreement), stipulating variation in the price, on account the liablility to “liquidated damages”, irrespective of whether the clause is titled “penalty” or “liquidated damages”, the resultant price would be the “transaction value”; and such value shall be liable to levy of excise duty, at the applicable rate. Therefore, demand is unsustainable. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 1023
Imposition of penalty - non-filing of Annual Return containing details of inputs for the period 2004-05 - Rule 15 of the Cenvat Credit Rules, 2004 - manufacture of Pan Masala - Held that:- it is clear that both the lower authorities have seriously erred in applying the legal provisions relevant to the case. Non-filing of Annual Return, as stipulated in Rule 9 of Cenvat Credit Rules, 2004, cannot be penalized in terms of Rule 15 of the said Rules as it is only a procedural violation. It is seen that other than the non-filing of return, no other allegation has been made against the appellant. The returns stand filed thereafter. Therefore, both the lower authorities have fallen in error in not considering the correct legal position and imposing penalty based on in-applicable legal provisions. - Decided in favour of appellant
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2016 (8) TMI 1022
Unjust enrichment - Refund claim - entitlement for exemption under Notification No. 108/95-CE dated 28/08/1995 - respondents applied to the Competent Authority for required certificate but due to urgency of project, they have obtained duty paid materials and used the same in the project of NHAI - Held that:- the respondent did execute a contract covered under the scope of Notification No. 108/95-CE. They are otherwise entitled for the said exemption. As per the finding in the impugned order that the refund was rejected only on the ground of the question of undue enrichment. Regarding the duty incidence, the learned Commissioner (Appeals) has given a categorical finding after perusal of the contracts and certificate issued by NHAI, that no duty has been collected by the respondent from NHAI. There is nothing in the present appeal to contradict the said factual finding as recorded in the impugned order. The contract is for a fixed amount and it has been categorically recorded in the impugned order that no excise duty incidence has been passed on by the respondent to NHAI. NHAI also categorically certified to that effect. - Decided against the Revenue
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2016 (8) TMI 1021
Imposition of penalty - Rule 15 of Cenvat Credit Rules, 2004 - non filling of ER-5 and ER-6 returns within the period prescribed - held that:- it is found that an identical penalty was imposed on the same applicant for the earlier period, which was challenged before the Tribunal reported in [2009 (11) TMI 947 - CESTAT NEW DELHI], wherein it was held that the contravention for which penalty has been imposed, is only a procedural violation and subsequently the required return has been filed, therefore, imposing penalty for the same is unsustainable. Therefore, by following the same, impugned order is set aside. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 1020
Eligibility - credit on capital goods and area based exemption notification no. 50/2003-CE dated 10.06.2003 - manufacture of sugar and molasses - undertaken substantial expansion of their existing capacity in 2005 - availed Cenvat Credit from 21.04.2006 to 06.07.2005 - on 15.11.2005 onwards started availing exemption under notification 50/2003-CE - Held that:- no legal basis found in such assertion of Revenue that when the respondent is aware that they are going to claim full exemption of their final product based on notification no. 49/03 and 50/03, they should not have availed credit. It was contended by the Revenue that the respondent postponed the availment of area based exemption only to avail credit on capital goods. but when the credit eligibility on capital goods are determined on applicable legal provisions, other presumptions or alleged motive of the respondent are of no consequence. Therefore, by referring to the decision of Hon’ble Supreme Court in the case of CCE Vs. Dai Ichi Karkara Ltd. [1999 (8) TMI 920 - SUPREME COURT OF INDIA], Tribunal’s decision in the case of Hindustan Coca Cola Beverages (P) Ltd. Vs. CCE [2005 (7) TMI 387 - CESTAT, MUMBAI] and Kerala High Court’s order in the case of CCE Vs. Premier Tyres [2001 (2) TMI 137 - HIGH COURT OF KERALA AT ERNAKULAM], and as there is no valid legal ground in the present appeal for denying the credit on capital goods, no merit found in appeal filed by Revenue. - Decided against the Revenue
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