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Central Excise - Case Laws
Showing 21 to 40 of 278 Records
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2016 (9) TMI 1388
Refund claim - failure to produce documents relevant to evincing that credit had accumulated because output had been exported by M/s. Bombay Dyeing & Manufacturing Co. for whom appellants were producing ‘made-up articles’ out of fabrics supplied by the principal - Held that: - The order of the Tribunal is unequivocal and, by no stretch, can it be seen as a remand order. The original authority is merely expected to release the refund and not subject the appellant to the quasi-judicial process once again. The first appellate authority appears also to have raised fresh grounds for denying the refund in clear disregard of judicial discipline - Failure to sanction refund, whether out of obduracy or out of ignorance, does no credit to the officers concerned. In the normal course, imposing costs on the lower authorities would have been in order but the matter is not of the recent past. The present status of the officers concerned is not known and it is that, and that alone, which deters the imposition of costs.
The competent authority is directed to implement the order of the Tribunal - impugned order set aside - appeal allowed.
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2016 (9) TMI 1372
Penalty u/s 11AC read with Rule 25 of CER, 2002 - the entire demand and interest was already paid - Held that: - on perusal of Section 11A (2B) of the CEA, 1944, it is found that since the entire amount of differential duty was paid, and intimation was given by the appellant assesse to the Department vide their letter dated 8/5/2008 and 31/7/2008, the SCN dated 19/03/2009 was not required to be issued - it has not been proved by the authorities below that the appellant had suppressed material facts from the department with an intent to evade payment of duty - there is no justification for imposition of penalty - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1355
Refund of CENVAT credit - exempted goods - Held that: - judgment in the case of Commissioner of Central Excise v. Drish Shoes Ltd. [2010 (5) TMI 334 - HIMACHAL PRADESH HIGH COURT] is confirmed by the Apex Court involving similar issue, no substantial question of law arises in the present appeals, where it was held that According to Rule 5 of CENVAT Credit Rules, 2004 that a manufacturer, who exports the final products which are exempt from duty, can claim refund of CENVAT - appeal dismissed - decided against Revenue.
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2016 (9) TMI 1351
Penalty u/r 209A of the Central Excise Act, 1944 - It is contended by the petitioner that if there are allegations of fraudulent transfers under registered documents of conveyance the Criminal Court could hardly be in a position to adjudicate the same and that unless the transactions are established to be fraudulent and the transfers are set aside - Held that: - If the complaint has to be proceeded with it has to be on the premise that the transfers if any were void ab initio which is impermissible unless there is a finding after adjudication that each such transaction was permitted by fraud and was intended to avoid the attachment proceedings and hence the Criminal Court would not have the jurisdiction to adjudicate on civil transactions - proceedings initiated against the petitioner is out of place - petition allowed - decided in favor of petitioner.
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2016 (9) TMI 1349
CENVAT credit - input service - outward transportation service - sale of goods on door delivery basis - Board’s Circular No. 97/8/2007-S.T. dated 23.8.2007 - Held that: - this issue is no longer res-integra and is squarely covered in favor of the appellants in the case of Menon Piston Ltd. Versus CCE [2012 (6) TMI 771 - CESTAT MUMBAI], where it was held that appellant is entitled for input service credit on GTA service upto the place of removal i.e. place of buyer's door - credit allowed - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1348
Refund of excess paid Excise duty - rejection on the ground of time limitation - Held that: - When the goods were cleared from depot to the independent buyers the data to arrive at transaction value was for the first time became available to M/s. L.G. to calculate duty due, it is undisputed that on the basis of such duty due the said refund arose - it is settled law that the date of filing refund claim whether complete or not is the date to arrive at limitation period and it is undisputed that the refund claim was filed on 5-11-2003. We, therefore, hold that M/s. L.G. is eligible for refund of duty paid by them on the subject goods from 5-11-2002 to the end of July, 2003 - matter on remand to examine the records - appeal allowed by way of remand.
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2016 (9) TMI 1347
Refund claim - provisional assessment - rejection of refund on the ground of time limitation as refunds have been filed on 3-11-2008 for the payments made in 2005-2006 and 2006-2007 - rejection also on the ground that as the assessments were still provisional and have not been finalized, the refund claim filed by the assessee was premature - Held that: - admittedly during the relevant period, the assessment were provisional. However, I find the stand of the Assistant Commissioner is self-contradictory inasmuch as on one hand he is rejecting the refund claim as premature, and on the other, he is rejecting the same on the point of limitation - The appellant’s apprehension that the claim may not be again rejected by the adjudicating authority on the issue of time-bar is not well-founded inasmuch as the claim is already filed and is deemed to have been pending before the original adjudicating authority and as such, there is no requirement for the assessee to file new refund claim so as to raise the issue of time-bar - appeal allowed by way of remand.
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2016 (9) TMI 1317
Waste/by-product - Bagasse - excisability - reversal of CENVAT credit on GTA service - Held that: - reliance placed in the case of Balrampur Chini Mills Ltd. Vs. UOI [2013 (1) TMI 525 - ALLAHABAD HIGH COURT] where it was held that even after the amendment in Section 2(d), bagasse cannot be held to be an excisable item inasmuch as the same does not pass the test of manufacture, as defined in Section 2(f) of Central Excise Act - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1312
CENVAT credit -iron and steel angles, channels, beams, etc. - It is the case of the revenue that these items are not capital goods while it is the case of the appellant that these items are used for fabrication/ erection/installation of Kiln especially upgradation, close circuiting project which are in the nature of the plant - Held that: - in the appellant’s own case Hon'ble High Court of Chattisgarh in the judgment UNION OF INDIA Versus ASSOCIATED CEMENT COMPANY LTD. [2010 (10) TMI 550 - CHHATTISGARH HIGH COURT] has held that cenvat credit are eligible on steel plates, and MS channels used in fabrication of chimney for diesel generating set - credit allowed - decided in favor of assessee.
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2016 (9) TMI 1299
CENVAT credit - service tax paid on outward transportation of goods - Held that: - issue stands covered by the decision passed in the appellants own case for the subsequent period M/s Ultratech Cement Ltd. Versus CC, CE & ST, Hyderabad [2016 (7) TMI 594 - CESTAT HYDERABAD], where it was held that outward transportation is an input service and is eligible for credit - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1297
Valuation - includibility - handling charges - postage - penalty - Held that: - There is no evidence to support the contention of the appellant today to prove that it was supplementary and optional for the appellant to meet the obligation of the buyer. In absence of such evidence, the duty liability stands sustained - considering the legal interpretation involved, the penalties imposed are waived - appeal allowed - decided in favor of assessee.
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2016 (9) TMI 1280
100% EOU - Refund claim - air-travel service - cab operator service - chartered accountant services - manpower supply service - out-door catering service - professional charges - denial on the ground that the service do not fall under the scope of input service - Held that: - in various case laws it was held that the credit is available and consequently refund should be granted of such credit - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1268
Valuation - rejection of transaction value - related party transaction - Held that: - the respondent and M/s. Tehri Steel Ltd., are not interconnected. M/s. Tehri Steel Ltd., was neither related to the respondent nor a distributor or sub-distributor of the respondent and do not have interest direct or indirect in the business of each other and there is no financial flow back of one company to other, which is a mandatory requirement to establish the mutuality of interest in each others business - transaction value to be adopted as assessable value - appeal dismissed - decided against Revenue.
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2016 (9) TMI 1237
Classification - Whether the brass granules manufactured by the appellant are required to be classified under CETH 74.0-3.21, as claimed by the Revenue or under CETH 74.06 as claimed by the Respondent - Held that:- copper predominates by weight and brass granules has to be treated as copper granules on the basis of predominance criteria. It is further observed that CETH 74.07 also pertains to copper bars, rods and profiles' but it also covers alloys of copper under CETH 7407.12. Accordingly, non mention of copper alloys or Brass in CETH 74.06 does not mean that it will not contain copper alloys in its ambit - Section note-6 to Section-XV of CETA also confirms this interpretation. Accordingly, this bench does not find any reason to interfere with the order passed by the first appellate authority regarding classification of brass granules.
Classification - Whether the cast form of Copper made by the Respondents should be classified as 'billets' as claimed by the Respondents or the same should be classified as 'Ingot' claimed by the Revenue - whether the chapter notes under Chapter 72 of CETA can be made applicable to Chapter 74 entries - Held that:- if the definitions of 'Ingot' & 'Billet' were uniform for all base metal then the same could have been placed as Section notes under Section XV of CETA. As per the above definition given in Indian Standards for copper and copper alloys both Billets & Ingots are products of casting. Billets of Copper & Copper alloys are intended for further working whereas Ingots are primarily for re-melting for production of copper and copper alloys. In the present appeals it is not the case of Revenue that cast products are meant for re-melting. In view of the above definitions given in Indian Standard for Copper and copper alloys will be more appropriate and the definitions of 'Billets & Ingot' given in chapter notes under Chapter 72 of the CETA cannot be applied to interpret entries of Chapter-74, as these notes are not existing as Section notes under Section XV of CETA. In view of the above, we hold that cast articles manufactured by the Respondents for further working are appropriately classified as 'billets' and will be eligible to exemption under Notification No.9/2003-CE dated 01.03.2003, as amended. - Decided against the Revenue
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2016 (9) TMI 1236
Cenvat credit - wrongly availed on the invoices raised by their unit no. 1 at unbranded goods - Held that:- it is found that there is no dispute that the unit no. 1 of the appellant has discharged the duty liability on the said unbranded pickles the same was received by the appellant and repacked into branded goods. If there is no dispute as to the receipt of goods by appellant, discharge of Central Excise duty on the goods received and consumed, CENVAT credit cannot be denied at the recipient unit, only on the ground that manufacturer should not have paid the Central Excise duty. This law is clearly settled in favour of the appellant.
Demand - cash discounts were not passed on but claimed as deduction - Held that:- the issue is now settled by the Hon'ble Apex Court in the case of Purolator India Ltd. Vs. CCE, Delhi-III [2015 (8) TMI 1014 - SUPREME COURT]. In the said judgment their Lordship have clearly held that the cash and volume discount between assessee and its buyers is known at or prior to clearance of goods, it can be deducted from the sale price. In the case in hand the appellant had produced evidence in form of Xerox copies of credit notes before first appellate authority, which indicated they have passed on cash discount as contracted between them and their purchaser. In our view they have passed on the cash discount as had been evidenced from the invoice. Hence, respectfully following the above judgment of Hon'ble Apex Court, we hold that the appellant is eligible for the cash discount deduction in assessable value. - Decided in favour of appellant with consequential relief
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2016 (9) TMI 1235
Demand and imposition of penalty - cash discount granted on the chassis cleared on payment of duty - non-inclusion of the amount of freight, insurance and octroi paid on the chassis received by it from M/s.Tata Motors in arriving at the assessable value on which the duty was paid by it - Held that:- the goods namely chassis were received by the appellant from M/s. Tata Motors Ltd. under proper central excise invoices and central excise duty paid thereon was clearly mentioned in those invoices. The appellant merely took credit of the duty so paid by M/s. Tata Motors Ltd. Therefore, if there is any discount allowed by M/s. Tata Motors Ltd. which the Revenue was of the view was not admissible then it follows that the demand should have been raised on Tata Motors, which had paid duty on chassis after allowing such discount.
Regarding non-inclusion of freight, insurance and octroi in respect of such chassis supplied by Tata Motors in arriving at the assessable value of the final product by the appellant, we find that Chartered Accountant’s Certificate dated 01.06.2007 was submitted by the appellant to the effect that cost of transportation, insurance, road tax, entry tax, octroi etc. upto the place of the consignee was included on the average basis in the assessable value of the final product of M/s. Tata Motors Ltd. and that such assessable value is used for payment of duty of excise at the time of removal of finished goods from Lucknow plant.
Notwithstanding the C.A. Certificate to support the appellants contention, we find that in the impugned order it is stated that “it also appeared that M/s.Tata Motors Ltd. has not considered other elements such as freight, insurance, entry tax to arrive at the assessable value of the chassis for discharging duty.” That being the case, the duty demand in respect of such elements even if they were held to be includible in the assessable value can be raised on M/s. Tata Motors and not on the appellant. Further there is nothing on record to suggest that the appellant paid anything more than the amount mentioned in the Tata Motors invoices. In other words, the appellant has not paid any freight, insurance or octroi in respect of such chassis, and therefore, question of the appellant adding these elements in arriving at the assessable value of its final products would simply not arise. Also when the impugned demand is not found sustainable, the penalty obviously cannot survive. - Decided in favour of appellant
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2016 (9) TMI 1234
Cenvat Credit - sale of waste and scrap of metal goods arisen during the course of repair and maintenance of various plant and machinery - non-payment of central excise duty - Held that:- in view of the settled principles of law, we are not in agreement with the findings of the lower authority that prescription of Chapter Note in the tariff will create the duty liability on the waste and scrap of metal goods arisen during the course of repair and maintenance of plant and machinery. With regard to applicability of Rule 3(5A) of Cenvat Credit Rules, 2004 to the facts of the present case, we find that on initial procurement of capital goods, the appellant had not taken any Cenvat credit and such facts were brought to the notice of both the lower authorities by the appellant. Therefore, the burden lies with the Department to prove availment of Cenvat credit on the disputed goods has not been satisfactorily discharged, and thus, confirmation of duty demand on this ground also is not tenable. - Decided in favour of appellant
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2016 (9) TMI 1233
Seeking destruction of cigarettes and remission of duty thereupon - Notification issued by Ministry of Health & Welfare requiring adherence of specified pictorial warning on the retail packages as an essential condition of marketing - goods reached their date of expiry as per industrial standard as the Central Excise Authorities did not permit the appellant for slitting of 457 cardboard boxes containing 5482200 cigarettes so as to repack said cigarettes into retail packages having specific warning.
Held that:- due to issue of Notification dated 03.5.2009 it became mandatory that at least 40% of the principal display area of the front panel of the pack was required to have specified health warnings. The impugned goods were packed much before the issue of said Notification. Rules 21 of Central Excise Rules, 2002, provide that Commissioner is empowered to remit duty payable on goods which are claimed by a manufacture as unfit for marketing at any time before removal. We find that impugned order rejecting such permission is not tenable in law. We, therefore, allow appellant's application dated 14/4/2011 filed before Commissioner Central Excise, Ghaziabad, for remission of duty of ₹ 54,71,419.74 and allow destruction of 548200 cigarettes referred to earlier and direct the Commissioner Central Excise, Ghaziabad to ensure destruction of said cigarettes by following procedure provided by law for the time being in face for such destruction. - Decided in favour of appellant
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2016 (9) TMI 1232
Notification No.167/71-CE dated 11.09.1971 - eligibility for exemption - carrying out research and development in the area of polymers, resins, adhesives, bulk drugs and drug intermediates - Held that:- the said Notification dated 11.09.1971 provides for full exemption to all excisable goods produced in a research Institute during the course of carrying out research. The condition of the said notification is that the Assistant Commissioner of Central Excise is satisfied that the goods produced in such research institute are produced during the course of carrying out research. It further provided that further condition for availing notification is that the manufacturer has to produce such certificate as may be required by said Assistant Commissioner of Central Excise for verifying that the goods have been produced during the course of carrying out research.
Appellant have produced the said certificate which is in the form of letter issued by authority in the Ministry of Science and Technology, Department of Scientific and Industrial Research, New Delhi on 18th December, 2003 referring to the subject of recognition of appellant’s In-House R&D unit by department of Scientific and Industrial Research and informs that it has been decided to accord recognition to the In-House R&D unit of appellant’s firm. We find that the said certificate is sufficient evidence to establish that the goods produced by the appellant are produced during the course of carrying out research. - Decided in favour of appellant
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2016 (9) TMI 1231
Imposition of penalty - Rule 25 of the Central Excise Rules 2004 - duty evasion - default in payment of duty - one day in an instance and two days in another instance owing to severe financial difficulties - Held that:- by respectfully following the decision of Tribunal in the case of M/s Annapurna Earcanal Ltd V/s Commissioner of customs and C.E., Hyderabad [2016 (9) TMI 1113 - CESTAT HYDERABAD], the impugned order to the extent of imposition of penalty under Rule 25(1) of Central Excise Rules 2004 is set aside. - Decided in favour of appellant
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