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Central Excise - Case Laws
Showing 81 to 100 of 317 Records
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2016 (8) TMI 974
Demand - Cess leviable under Automobile Cess Rules, 1984 - manufacture of agriculture tractors - Held that:- contentions raised by the appellant do not stand properly considered by the adjudicating authority and the demand stand confirmed under the Automobile Cess Rules, which according to Hon’ble Himachal Pradesh High Court’s order in the case of Indo Farm Tractors & Motors Ltd. vs. Union of India [2007 (7) TMI 150 - HIGH COURT, HIMACHAL PRADESH ] are not applicable to tractors and subsequently amended notification and the fact that appellants engine are less than 1800 CC has not been considered by the adjudicating authority. - Appeal allowed by way of remand
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2016 (8) TMI 973
Appeal for early hearing - issue is of recurring nature - denial of area based exemption Notification No. 50/2003 and issuance of number of subsequent show cause notices - Held that:- once the Revenue has taken a stand that appellant is not entitled to said notification benefit, it automatically follows that the Revenue would issue the show cause notices for the subsequent period also. We do not find that why for allowing the application, fact of issuance of show cause notices needs verification by the Commissioner, as sought for by the learned DR. Further, the objection raised by the learned DR is also not found favour with inasmuch as we find that the benefit of notification is a continuation issue and the fact that issuance of subsequent show cause notices makes it a recurring issue, leading to unnecessary litigation. To avoid the same, it is necessary that the disputed legal issue is settled so as to allow the lower authorities to decide the issue in accordance with such declaration of law by the Tribunal. - Early hearing allowed
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2016 (8) TMI 972
Cenvat credit - H.R. Alloy steel plates (hardox -400) - used in the factory for repair and maintenance of capital goods - production of Chartered Engineer’s certificate showing area of use of disputed goods in the factory premises - Held that:- H.R. Steel plates (Hudox- 400) is not falling under the excluded category mentioned in definition of input. Further, it is not in dispute that the goods in question have been used by the appellant within its registered factory premises. Since the definition of input is very broad intended to take within its ambit all the goods used in the factory of the manufacturer of final products, hence, the disputed goods shall merit consideration as input, and thus, denial of cenvat benefit on the same is not proper. - Decided in favour of appellant
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2016 (8) TMI 942
Whether the Tribunal is correct in holding that the respondent had correctly discharged the obligation under Rule 6(3) of the Cenvat Credit Rules, 2004 and whether the Tribunal is correct in deleting the mandatory penalty - Held that:- the order impugned in this appeal, has to be set aside and that the Tribunal should revisit and adjudge certain points for consideration. Both the learned counsel for the parties, have consented for the order impugned in Final Order No.41001/2014 dated 11.12.2014 passed by CESTAT, Chennai - 600 006 to be set aside and the matter be remanded for adjudication. - Appeal allowed by way of remand
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2016 (8) TMI 941
Benefit of excise duty - Notification No. 5/2006-CE and subsequent notifications - fabrication of RCC pipes and laying the pipes at various depths below the ground level as per the details in the agreement - goods have been fabricated not at the site of construction of the sewage system but at a different site - Held that:- in view of the decision of Tribunal in the case of Simplex Concrete Piles (India) Ltd. vs. CC&CE, Rajkot [2004 (6) TMI 129 - CESTAT, MUMBAI] wherein it was held that the CBEC Circular dated 18.05.1999 has been considered and the benefit of excise duty exemption for goods manufactured at site has been extended in a case where goods were manufactured for use in the construction of break waters of Veraval Port at a private plot at a site which was 1.5 km away from the said port, the appellant will be eligible for the benefit of excise duty under Notification No. 5/2006-CE and subsequent notifications which grant exemption for such goods manufactured at site. In such a view of the matter, we consider it not necessary to examine the valuation aspect of the pipes inasmuch as we hold that no excise duty liability arises on pipes. - Decided in favour of appellant
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2016 (8) TMI 940
Valuation - Demand of differential duty - appellant's paying duty on MRP basis only on the food processor basic unit whereas bundled food processor accessories into a separate packing with a separate MRP but paid duty on the accessories under the transaction value - whether the food processor basic units as well as accessories are to be assessed together under MRP - Held that:- accessories when packed separately, do not contain any electric motor. It is common knowledge that the accessories can function only in conjunction with the basic food processor unit, which contains the motor. These accessories are specifically designed to work with the food processor and cannot be used inter-changeably with any other machine. It is also obvious that the food processor basic unit is of no use to the customer without the accessories, which are essential for exploiting the entire function of the food processor. This leads us to the reasonable conclusion that the bifurcation of the complete food processor into basic unit and other essential parts described as optional accessories and packed in separate boxes and marked with separate MRPs and cleared in equal numbers, has been done with the purpose of wrongly claiming lower rates of excise duty under Section 4 for the accessories. Accordingly, the food processor basic unit along with the accessories are to be assessed together as electric mechanical domestic appliance with self contained electric motor and are chargeable to duty on MRP basis. Consequently, the demand for differential duty upheld. - Appeals disposed of
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2016 (8) TMI 939
Refund claim - Rule 5 of the Cenvat Credit Rules - availed cenvat credit of duty for payment of central excise duty on the finished products but are not in a position to utilize the same used in the manufacture of final products, which were cleared to a 100% EOU under CT-3 certificates - whether the clearances to 100% EOU (which is a deemed export) may be considered on par with export, which is export out of India - Held that:- an identical issue has been considered by several benches of this Tribunal as also the Hon’ble High Court of Gujarat. In the decision of the Hon’ble Gujarat High Court in the case of CCE Vs. Shilpa Copper Wire Industries [2008 (2) TMI 93 - CESTAT AHMEDABAD], held that the clearances to 100% EOU be considered on par with physical export for which refund of un-utilised cenvat credit is allowable. An identical view has been taken by the Tribunal in Elcomponics Sales Pvt. Ltd. [2011 (10) TMI 196 - CESTAT, NEW DELHI]. Therefore, in view of the same, the issue is no more res integra and stands decided in favour of the appellant. - Decided in favour of appellant
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2016 (8) TMI 938
Demand in terms of Notification No. 22/03-CE dated 31.03.2003 - Invokation of extended period of limitation - willful misstatement/ suppression of facts - waste and scrap arisen in the course of production processing or in connection therewith - Held that:- the appellant had all along held that it considered the impugned waste and scrap as not subject to duty. Further the SCN itself concedes that the Revenue was not confirmed whether such waste and scrap was out of indigenous or imported material and therefore, it is to be treated as generated imported material on which higher rate of duty is applicable but this observation is unsustainable as the onus to establish that such waste and scrap was generated out of the imported raw material is clearly on Revenue.
Also in view of the decision of Hon'ble Apex court in the case of Uniworth Textiles Ltd. [2013 (1) TMI 616 - SUPREME COURT], the Supreme Court held that mere non-payment to duty is not equivalent to collusion or willful misstatement or suppression of facts. The main body of the Section, in fact, contemplates ordinary default in payment of duties and leaves cases of collusion or wilful mis-statement or suppression of facts, a smaller, specific and more serious niche, to the proviso. Therefore, something more must be shown to construe the acts of the appellant as fit for the applicability of the proviso. Hence, the demand is unsustainable and extended period of limitation is not invokable. - Decided in favour of appellant
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2016 (8) TMI 937
CENVAT credit - capital goods and services received by them during the period 01/04/2005 to 28th of February 2006, during which period their final products were exempted from payment of Central excise duty - 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 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. - Decided against the appellant
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2016 (8) TMI 936
Demand and imposition of penalty - Confiscation of goods seized - diversion of 1022 pieces of compressors procured by M/s. Thermoking at concessional rate of duty - clandestine removal of gas compressor to M/s. Flevel International and consequent manufacture of air conditioner by the said M/s. Flevel International - Held that:- there is no need for assessing the evidentiary value of all the facts placed on record by the revenue inasmuch as the same very facts and evidences stand scrutinized by the Hon’ble Delhi High Court and have been held to be insufficient to uphold the charges. The allegations in the present proceedings is in respect of same number of gas compressors i.e. 1022 procured by the assessee under Chapter X Procedure and alleged diversion which were the subject matter of the earlier proceedings. As such, in terms of Hon’ble Delhi High Court decision in the earlier proceedings, the allegation of diversion of 1022 pieces of gas compressor and the consequent demand of duty along with imposition of penalty cannot be upheld. Consequently, the confiscation of the seized goods is required to be set aside.
Clubbing of clearances - units related to each other - Held that:- the issue stand decided in the same appellants case vide the earlier order of the Tribunal wherein both the Members agreed that the allegations of clubbing of clearances cannot be upheld. Reference is made to the decision reported in [2014 (2) TMI 1094 - CESTAT NEW DELHI (LB)]. we also note that the Revenue's appeal against the said order of the Tribunal before the Hon’ble Delhi High Court stand dismissed. As such, as the issue stand decided in the same assesssee's case, we find no reasons to interfere in the impugned order of the Commissioner on this ground. - Decided in favour of appellant
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2016 (8) TMI 935
Demand of differential duty - fertilizers cleared by them by availing the notification no. 6/02-CE dated 01/03/2002 and Notification No. 4/06-CE dated 1/3/2006 during the period 2001-2002 to 2005-2006 but some part of the fertilizers were lost in transit and were not used as fertilizers - Held that:- the notification grants exemption to all goods other than those which are not to be used as fertilizer, i.e., exemption is provided in the negative way. The literal meaning of the notification would indicate that if there is unambiguous intention at the time of clearance of the goods not to use them as fertilizer, the exemption shall not be available to such goods. In other words, if goods are clearly intended to be used as fertilizers at the time of clearance the exemption would be available. Since, in this case, there was no such intention of not using the goods as fertilizerand goods were cleared with clear intention to be used a fertilizer then mere fact that certain quantity of urea was not used as fertilizer due to loss in transportation, re-bagging and standardization, it would not mean that such urea was not intended to be used as fertilizer. Further, I find that there is no indication in the notification that urea should be actually used as fertilizer for benefit of said notification.
The department contention that impugned goods must be actually used as fertilizer is not correct. The benefit of notification to urea for use in fertilizer has to be decided at the time of clearance of the goods itself from the factory. In my view actual use of urea as fertilizer is not envisaged in the impugned notification. Since there is all the intention at the time of clearance that urea to be used as fertilizer and there is no intention that urea will not be used as fertilizers, hence the benefit of exemption to urea will apply to all quantity of urea even if some quantity of urea is subsequently destroyed or lost due to transportation, re-bagging and standardization. - Decided against the Revenue
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2016 (8) TMI 934
SSI Notification No. 08/2002 dated 1/3/2002 - entitlement for benefit - manufacture of goods bearing the brand name Blue Heaven - Revenue aleged that he brand name with which goods have been cleared by the appellant does not belong to them but of another person - Held that:- it is found that the brand name Blue Heaven is linked throughout with G.C. Laboratories and there is no doubt about it. There is no allegation whatsoever that the brand name belongs to some other person. The registration of the brand name was changed by the Registrar of Trademarks only to reflect the change in proprietor of M/s. G.C. Laboratories. Hence, the brand name Blue Heaven is in the name of Shri Gurnam Singh, Sole Proprietor of M/s. G.C. Laboratories as per the order of trademark registry dated 22/12/2006, which is on the basis of the request dated 23/07/2001. Under such circumstances, the brand name Blue Heaven is to be considered as continuously belonging to M/s. G.C. Laboratories. Therefore, the goods cleared by the appellant bearing the brand name Blue Heaven will be throughout entitled to the benefit of the SSI Notification. - Decided in favour of appellant
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2016 (8) TMI 933
Notification No. 6/2002-CE dated 1/3/2002 - entitlement for benefit - M.S. Pipes cleared to various sites of the department of PHED for drinking water on the basis of certificate issued by the Collector and the District Magistrate of the other respective districts - whether the pipes which are admittedly used as Casing Pipes will be covered under the category needed for delivery of water from its source to the plant, even though these are not used for carrying the water itself - Held that:- the wording of the notification is to be interpreted in such a way as not to frustrate the purpose of the notification. The CBEC Circular has clarified that exemption will be available on pipes required for obtaining untreated water from its source to the plant. This clarification fairly covers the issue on hand and the benefit cannot be denied. To take a view that the benefit can be extended only to those pipes which physically carry water and deny it to those which are used as Casing Pipes (which are also needed for delivery of water) would defeat very purpose of the Exemption Notification meant for giving the benefit to water treatment plants. - Decided in favour of appellant
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2016 (8) TMI 932
Demand and imposition of penalties - Clandestine clearance of goods - shortages of final product detected by the officers at the time of their visit - documents recovered from the residential premises of one Shri Vinod Kumar Gupta relate to raw material received and dispatch of finished goods - Held that:- the Revenue has not produced any evidence or not has even alleged that there was enhancement in the production capacity subsequent to fixation of APC. In such a scenario, the rejection of the stand is on a flimsy ground. In the absence of capacity of production of such a huge quantity of goods, their clearance is virtually impossible. Where the production capacity was fixed by the Commissioner prior to the period in question and it is not the Revenue's stand that subsequent to the fixation of ACP, the appellants have added any further machinery in their factory so as to enhance their production capacity. The Chartered Accountant's certificate clearly establish that no capital expenditure stand made by the assessee subsequently. Even the assumptive observations made by Commissioner may lead to enhancement in the production capacity to a little extent but same cannot lead to enhancement of the capacity to such a huge quantum which is almost four times the capacity fixed by the Commissioner.
In the present case the entire case of the Revenue is based upon uncorroborated unverified entries in the documents recovered from the premises of third person as also upon the statements of some of the concerned persons, which depositions are also not very clear leading one to believe that the appellant was indulging in clandestine activities. A cumulative reading of the statements leads us to believe that same stand given in the context of trading activity of the assessee. As the Revenue has miserably failed to establish the manufacture of such huge quantity of the appellants final product and has not adduced any positive and sufficient tangible evidence for the clearance of the final product from the appellants factory to the customer's premises, we find no justification to uphold the impugned order of Commissioner. Accordingly, confirmation of demand and imposition of penalty on M/s. CIL is set aside. Consequently, the penalties upon other appellants, who are Managing Directors or Directors of the said company, or the raw material supplier or the alleged buyers of their final product and other employees of the company are also set aside. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 931
Enhancement of penalty - includability - penalty paid by the dealers of M/s.Skoda Auto India Pvt. Ltd. in the assessable value - Held that:- it is found that there is no evidence to show that the penalty amount received by the M/s.Skoda Auto India Pvt. Ltd. is in connection with the sale of goods by them to dealers. Therefore, the same cannot be included in the assessable value. The appeal filed by M/s.Skoda Auto India Pvt. Ltd. is therefore allowed and the demand is set aside. Since the demand itself is set aside there is no question of imposing penalty. - Decided against the Revenue
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2016 (8) TMI 930
Refund claim - period of limitation - Held that:- it was open to the appellant to opt for provisional assessment if he was unable to determine the assessable value at the time of clearances from the factory. If he has not opted for the same, the only recourse open to him is to file a refund claim under Section 11B. The show-cause notice issued under Section 11B are in the nature of communication of the objection. In fact there is no time limit prescribed for issue of show-cause notice under Section 11B and thus it is open to Revenue to point out the short comings in the refund claim. - Decided against the appellant
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2016 (8) TMI 929
Reversal of amount equal to 10% or 5% on the value of exempted goods - Rule 6 of the Cenvat Credit Rules, 2004 - clearance of bagasse, press mud and boiler ash and compost etc. - Held that:- the issue is squarely covered by the decision of Tribunal in the case of Balrampur Chini Mills Ltd. [2004 (11) TMI 567 - CESTAT NEW DELHI] (which has been affirmed by the Hon’ble Apex Court). In view of the same, the demand is set aside.
Reversal of credit - HR sheets used for fabrication of biogas digester tank, which is exempted capital goods under Notification No.06/2006 dated 01/03/2006 - Held that:- it is seen that biogas tank is a part of biogas plant and Biogas plant is covered under Notification No.6/2006, therefore, parts of biogas plant are also covered. In view of the above, it is apparent that biogas storage tank is examined under Notification No.6/2006 and is exempted under Notification No.67/95. Therefore by relying on the decision of Tribunal in the case of KCP Ltd., the appeal is allowed. - Decided in favour of appellant
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2016 (8) TMI 928
Whether the appellant was acting as a job worker for its sister unit and doing the job work of converting Iron Ore into iron and ore concentrate slurry and returning the goods to the sister unit (Principal manufacturer) was required to pay duty thereon - Held that:- as far as the duty liability of a job worker in terms of Rule 57(F)(4) of Central Excise Rules, 1944 is concerned, it is settled upto the level of Supreme Court that the job worker was not required to pay duty. The language in both the Rules i.e. Rule 4(5)(a) and Rule 57(F)(4) gives no scope to infer that if the job worker was not required to pay duty in terms of Rule 57(F)(4) it could be required to pay duty in terms of Rule 4(5)(a) because the conditions of Rule 57(F)(4) were stringent compared to the conditions of Rule 4(5)(a) inasmuch as Rule 57(F)(4) categorically required the principal manufacturer to use the goods received from the job worker for further use in the manufacture of the final product or removing after payment of duty for home consumption or removing the same without payment of duty for export while Rule 4(5)(a) does not say so expressly though it is implicit therein. Thus, we are of the view that for the purpose of dutibility at the hands of the job worker, the provisions of Rule 57(F)(4) are essentially parimateria the Provisions of Rule 4(5)(a) of the Cenvat Credit Rules. - Decided in favour of appellant
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2016 (8) TMI 892
Demand and imposition of penalty - cleared saw dust and wood waste/scrap arose during course of manufacture of final products without payment of Excise duty under Rule 6(3)(i) of Cenvat Credit Rules, 2004 - realized an amount during August 2010 to March 2011 by sale of saw dust - Held that:- the issue is squarely covered in favour of the appellant by the various decisions relied upon by the appellant. In similar facts and circumstances of the case, I have already taken a decision in favour of the assessee in case of M/s MAS Furniture Vs. C.C.E., Mysore [2016 (8) TMI 753 - CESTAT BANGALORE]. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 891
Whether the duty paid copper tubes purchased from outside and subjected to various processes by the appellant would continue to be classified under 74.11 as copper tubes or pipes or whether it has undergone manufacture and would be classifiable under 8414.91 as parts of gas compressor - Held that:- Copper tubes and pipes covered under 74.11, as commonly understood in trade parlance, would include tubes and pipes of various diameters which satisfy the note 1(h) to Chapter 74 which are generally sold in running length. Whereas in the case of appellant the pipes are cut to different dimension, subject to process of bending and also process such as grinding and smoothening would no longer be understood in trade parlance as simple tubes and pipes. These goods can only be used as parts of the equipment for which they were made. The above processes have transformed, the copper tubes into new products described as charging tubes, discharge tubes, second tubes etc. which are nothing but parts of gas compressors. These products have character, use and name which are distinctly different from the generic term of copper tubes. Therefore, the process amounts to manufacture as defined in Section 2(f) of the Central Excise Act, 1944.
The assessee having declared fairly their view in the classification list filed before the proper officer, it was open to the Revenue to carry out verification and initiate proceedings for demand if necessary within the normal period of six months under Section 11A of the Central Excise Act. Keeping this in view, we find that the first show cause notice covering the period 27.02.1989 to 31.03.1993 involving demand of about ₹ 10.84 lakhs, issued on 16.02.1994 would be hit by limitation under Section 11A. However, the subsequent three notices would fall within the normal period of limitation and accordingly the demands of duty raised in these three notices are upheld. However, there is no justification to impose any penalty on the assessee and hence penalty imposed in the impugned order is set-aside. - Decided partly in favour of assessee
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