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Central Excise - Case Laws
Showing 1 to 20 of 278 Records
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2016 (9) TMI 1640
Seeking permission for withdrawal of petition - attempt to seek appropriate direction from the Court for directing the adjudicatory authorities to abide by the directions of the Tribunal and adjudicate in light thereof - HELD THAT:- Permission as sought for is granted. Matter is disposed of as withdrawn. This Court has not opined on merits and this withdrawal shall not be treated as an impediment in the way of the petitioner in approaching the Tribunal within time limit prescribed.
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2016 (9) TMI 1627
Re-determination of Production Capacity - declaration in Form-I - provisos 1 and 2 to Section 3(A)(2) of the Central Excise Act, 1944 read with Rule 6(2) of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - HELD THAT:- The Assistant Commissioner was required to only determine the annual capacity of production and have exceeded jurisdiction in determining the duty payable per month. Accordingly, the later part of the impugned order determining that duty payable for the month of March, 2015 is quashed and set aside.
Appeal allowed.
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2016 (9) TMI 1539
CENVAT Credit - common input services used in excisable goods and providing exempted service i.e. trading - Rule 6(2) of CENVAT Credit Rules, 2004 - extended period of limitation - penalty.
HELD THAT:- Since the trading activity is a exempted services even after 01-07-2012, therefore I find that in backdrop of the undisputed fact that the Noticee has neither maintained separate accounts as required under Rule 6(2) of CENVAT Credit Rules, 2004 nor have filed option under Rule 6(3A) ibid, I find that Noticee is required to pay an amount at the rates specified in Rule 6(3) ibid - Rule 6(3A) of CENVAT Credit Rules, 2004, inserted vide Notification No: 13/2016-Central Excise (NT) dated: 01-03-2016, is having effect from 01-04-2016 i.e it is having prospective effect. The dispute pertains to the period from 2011-2012 and 2012-2013 therefore the said Rule cannot be applied retrospectively.
The Noticee are liable to pay an amount of ₹ 27,72,837/ -, as worked out in Show Cause Notice, under Rule 6(3) of CENVAT Credit Rules, 2004. The explanation III to Rule 6 ibid provides that the amount payable under Rule 6(3) ibid shall be recovered under provisions of Rule 14 ibid. Upon referring to Rule 14 of CENVAT Credit Rules, 2004 I find that it stipulates that it shall be recoverable under Section 11A of Central Excise Act, 1944 along with interest under Section 11AA ibid. Thus the question carved at Para 13 (i) is answered in affirmation.
The fact of trading activity came to the knowledge of the department only during the course of audit. Prior to that Noticee has not intimated anything to the department Thus the Noticee has willfully suppressed the fact with an intention to evade the payment of amount under Rule 6(3) of CENVAT Credit Rules, 2004 and have availed and utilized ineligible CENVAT credit. Therefore, the extended period has been rightly invoked under Section 11A(5) of Central Excise Act, 1944.
The Noticee are liable for penalty equal to 50% of the amount under Rule 15 of CENVAT Credit Rules, 2004 read with Section 11A(5) of Central Excise Rules, 2002 read with Section 11AC(1)(b) ibid. Thus, the point is answered in affirmation.
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2016 (9) TMI 1511
Nature of contract - composite contract or not - HELD THAT:- Appeal admitted on the substantial questions of law.
The respondent waives notice.
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2016 (9) TMI 1501
Valuation - cash discount and trade discount given by the job worker to the principal manufacturer - HELD THAT:- It does not appeal to common sense that how cash discount and trade discount shall be admissible to determine the value of the goods cleared by the job worker. It does not make any sense to grant such relief, since final goods are not cleared and this trade practice does not prevail in the industry. Any such discount shall depress the assessable value and shall not determine the assessable value in accordance with law.
Penalty - HELD THAT:- It is appreciable that the interpretational error has brought the appellant to penal consequence of law - The penalty imposed under Section 11AC of Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002 is waived.
Appeal allowed in part.
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2016 (9) TMI 1492
Clandestine manufacture and removal - MS Ingots - main basis of allegation is that there has been higher consumption of electricity and ingot moulds, and as such, the respondent did not account all the production of excisable goods - Held that:- Revenue contended that life cycle of mould was not correctly considered by the original authority. In the project report, the life of mould is shown as 240 heats. We find the allegation of excess production cannot be made on the basis of project report or presumed life span of moulds without any corroborative evidence.
Electricity consumption - Held that:- In the absence of categoric evidence regarding excess serviceable life of ingot moulds, the demand cannot be sustainable merely on the basis of higher consumption of electricity.
There is no justification to interfere with the findings of the original authority - appeal dismissed - decided against Revenue.
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2016 (9) TMI 1487
Valuation of goods - manufacture and supply of Industrial gases viz. Oxygen, Nitrogen, Hydrogen, Helium, Argon and also mixture of these gases - inclusion of cylinder rental and maintenance charges - inclusion of excess amount of transportation charges - classification of the medical grade oxygen - Cenvat Credit in respect of cryogenic tank - Held that:- Learned counsel for the appellant is granted four weeks’ time to do the needful failing which the appeals shall stand dismissed without further reference to the Court.
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2016 (9) TMI 1486
CENVAT Credit - input service - Business Exhibition Service - Held that:- As the Business Exhibition Service has been availed by the appellant for display of goods in exhibition which is ultimately business promotion activity. Therefore, the said activity is having the nexus of the manufacturing business of the appellant - the appellant is entitled to take Cenvat credit on Business Exhibition Service during the period of 2009-2010 - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1475
CENVAT Credit - common input service in respect of generation of the electricity - Rule 6(3) of Cenvat Credit Rules - Held that:- In terms of the amended Rule 6 the appellant had debited an amount of ₹ 7,82,780/- from its Cenvat account and also deposited interest on such credit. Since the amount reversed is attributable to the input service used in generation of electricity sold outside, such reversal is in conformity with the provisions of Section 6(3) ibid - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1468
CENVAT Credit - input services - testing, handling and commission services - mobile phone services - machine and maintenance services - management consultant services - courier service - banking and finance [distributed by their head office] services - services received directly by insurance of plant and machinery consultancy for fly ash project - R&D services - mobile phone services - municipal solid waste management services etc.
Services used at the depot/C&F agent premises - Held that:- Credit has been taken as distributed by the ISD and pertains to various activities intimately connected with the manufacture and sale of cement through depots, C&F agents etc. Such services have been allowed as input services and are squarely covered by several decisions - reliance placed in the case of M/S. HCL TECHNOLOGIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND VICE-VERSA [2014 (1) TMI 1730 - CESTAT NEW DELHI] - credit allowed.
Insurance Services - credit sought to be disallowed on service tax paid for insuring the plant and machinery, mining equipments, store material and company vehicles - Held that:- The credit cannot be denied on the ground that these services are not used in or in relation to the manufacture of cement since insuring the plant and machinery, building etc. would form part of the normal business activity to make sure that they get compensation in the unfortunate event of fire, theft etc. - These services have also been held to be permissible as input services in the case of Hindustan Zinc vs. CCE, Jaipur [2014 (7) TMI 485 - CESTAT NEW DELHI] - credit allowed.
R&D Services - credit denied on the ground that it has been incurred towards development of re-active belaite cement which is not the product of the appellant - Held that:- This has been shown to be an R&D activity undertaken by the respondent in pursuance of introduction of new varieties of their final product and hence cannot be denied - similar issue has been examined by the Tribunal in the case of Cadila Healthcare Ltd. vs. CCE, Ahmedabad [2009 (8) TMI 172 - CESTAT, AHMEDABAD] where it was held that the service will be allowable on the ground that all products taken up by the company for R&D may not reach the customer as a commercial product - credit allowed.
Service tax paid on consultancy for fly ash or coal handling - Held that:- The same are relatable to the appellant’s main activity in their claim - credit allowed.
Mobile phone services - appellants clarified that the services are availed and the bills are borne by the appellants - Held that:- Reference can be made to the decision of Hon’ble Gujarat High Court in CCE vs. Excel Crop Care Ltd. [2008 (7) TMI 160 - HIGH COURT GUJARAT], where it was held that credit not deniable on ground that phones were not installed in the factory premises - credit allowed.
Services provided on Municipal Solid Waste, Jaipur - Held that:- The services used for procurement of input is specifically included in the input service and hence credit is admissible on the same - credit allowed.
Appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1448
Time limitation - Classification of goods - Batting Gloves, Wicket Keeping Gloves, Batting Inners & Wicket Keeping Inners - whether classified under Chapter 95 or not? - Held that:- Held that:- The issue is fully covered by our earlier decision in the case of, M/s. Sanspareils Greenlands Pvt. Ltd. v. Commissioner of Central Excise, Meerut [2016 (9) TMI 1230 - CESTAT ALLAHABAD], where it was held that the said demand was hit by limitation.
Even if the classification issued is not finalized the demand in the present case gets hit by limitation for the period up to February, 2012. For the month of March, 2012 the appellant has paid duty at full rate therefore, under Section 11A(2B) of Central Excise Act, 1944, the show cause notice issued for the month of March, 2012 does not survive - Demand up to the period of February, 2012 is hit by limitation and for demand for the month of March, 2012 the show cause notice does not survive in view of Section 11A(2B) of Central Excise Act, 1944.
Appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1426
CENVAT credit - duty paid on inputs which were used for clearing both exempted as well as duty paid goods - non-maintenance of separate records - Held that: - identical issue decided in the case of CCE & ST, Hyderabad-III Vs M/s Kishore Sons Surfactants vide Final Order No.A-30006/2015 has decided the issue in favor of the assessee - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1419
Condonation of delay of 498 days in filing appeal - reasons for delay put forth show that the appellant has not taken effort or diligence to file the appeal within time - Held that: - the appellant has not explained reason for delay of each day or explained the delay with dates on which the appeal was sent to Kolkata or the date on which appeal was handed over to the consultant etc. - although it is stated that the papers got misplaced in transit, it is not stated when and how the appellant traced out the papers again and on which date handed over the same to the consultant for filing the appeal. On the whole, the appellant has not made out satisfactory ground for condoning the delay.
The application for COD will stand allowed on payment of cost of ₹ 25,000/- to the respondent/Department within a period of four weeks from today.
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2016 (9) TMI 1415
Penalty u/s 1AC of the CEA, 1944 - it was alleged that appellant has been clearing the manufactured goods, such as GSM/GPRS modems without payment of excise duty for demonstration purpose to Uttarakhand unit - intent to evade or not? - Held that: - The non-maintenance of records while clearing the goods out of the factory, is a strong indication of suppression of facts with intention to evade payment of duty. The appellants have also not disclosed such removals in any of their statutory records or in the ER-1 Returns - the explanation that the goods were removed for demonstration purpose and without intent to evade payment of duty is not tenable - the ingredient required for invoking the penal provisions u/s. 11AC of Central Excise Act, 1944 are established - penalty upheld - appeal dismissed - decided against appellant.
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2016 (9) TMI 1412
Refund claim - Since, the goods were eligible for supply at Nil rate of duty and since the duty was paid appellant filed claim of refund - denial on the ground of time limitation and that proper original documents like invoices (under Rule 11 & PLA) were not submitted - Held that: - the substantial provisions of law which is to be eligible for refund has been complied with by the appellant. The endorsement of refund on original copies of invoices is not a substantial requirement to be eligible for refund - the Original Authority is directed to grant refund to the appellant within 60 days of receipt of copy of this order in his office - appeal allowed.
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2016 (9) TMI 1411
Refund of penalty - time limitation - Section 11B of the Central Excise Act, 1944 - Held that: - Section 11B ibid deals with filing of refund application in respect of Central Excise duty. Since there is no specific mention about refund of penalty in Section 11B ibid, the time limit prescribed therein would not have any application for sanction of such refund amount - refund of penalty allowed - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1410
Recovery of Rebate allowed - main allegation is that rebate was claimed by the appellant on the strength of invoices/bills without physically receiving the goods - Held that: - the show cause notice has not spelt out the source of procurement of alternate materials. The only documents relied upon showing procurement of materials is no way related to the disputed period - It is evident from rebate sanction orders from the period from 8-12-2006 to 18-9-2007 that entire facts were before the department and the appellant had given undertaking as required by the department to refund the amount sanctioned if demanded within a year.
It was also found that ARE-2 containing all the details of raw materials used were filed by the appellant within 24 hours of export clearance from the factory - the demand is time-barred.
Appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1406
CENVAT credit - taxable product subsequently becoming exempt - Held that: - indefesible right to Cenvat credit cannot be denied or forgone unless otherwise required by law for extinguishment of such right. Abridgment of the vested right was recognised by law w.e.f. 1.3.2007 incorporating sub-rule 3 (2) to Rule 11 of CCR 2004. Present case being prior to such introduction of law, the order denying Cenvat credit is set aside - appeal allowed.
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2016 (9) TMI 1402
CENVAT credit - inputs used in the manufacture of exempted goods - fuel - sub-rule (1) of Rule 57D of Central Excise Rules, 1994 and sub-rule (1) of Rule 6 of the Cenvat Credit Rules, 2001/2002 - Held that: - the issue raised is covered against the respondent and in favour of the appellant by the decision of the Apex Court in Commnr. of Central Excise Versus M/s. Gujarat Narmada Fertilizers Co. Ltd. [2009 (8) TMI 15 - SUPREME COURT] wherein it was held that Cenvat credit for duty paid on inputs used in the manufacture of exempted final products is not allowed.
Notwithstanding the fact that the appellant is entitled to succeed and Annexure A4 and A6 orders passed by the appellate authority and the Tribunal are liable to be set aside, the matter should go back to the original authority for the limited purpose of deciding the question whether utilizable input credit was available during the period from March, 2000 to November, 2002.
Appeal allowed in part and part matter on remand.
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2016 (9) TMI 1389
CENVAT credit - NCCD - whether Cenvat credit of NCCD paid which was subsequently refunded through specific notification will over-ride the provisions of Rule 3? - whether the provisions of Rule 12 will interfere with the admissibility of Cenvat, provided through Rule 3 of CCR, 2004?
Held that: - Rule 12 provides that Cenvat credit of duty paid on inputs, which is subsequently refunded through said Notification No. 32/99-C.E., is admissible as if no such refund had been granted to the manufacturer of inputs. The said Rule does not prohibit from any such similarly worded notification having similar provision in respect of some other component of input credit disentitled for such credit - Rule 3 of CCR, 2004 also has no such provision that Cenvat credit of NCCD paid if subsequently refunded through specific notification, is not entitled for availment.
Appeal allowed - decided in favor of appellant.
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