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Central Excise - Case Laws
Showing 1 to 20 of 378 Records
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2017 (10) TMI 1651
CENVAT Credit - input service or not - For promoting the sales the appellant has paid the sales commission to its agent - HELD THAT:- It appears that the issue has came up before the Tribunal as M/S ESSAR STEEL INDIA LTD. VERSUS COMMISSIONER OF C. EX. & SERVICE TAX, SURAT-I [2016 (4) TMI 232 - CESTAT AHMEDABAD] as well as in the case of M/S MANGALAM CEMENT LTD., M/S J.K. LAKSHMI CEMENT LTD, M/S K.E.I. INDUSTRIES LTD VERSUS CCE, UDAIPUR [2017 (12) TMI 426 - CESTAT NEW DELHI] wherein it was observed that With regard to availment of Cenvat credit on the commission paid for sale promotion activities, the CBEC vide Circular No. 943/4/2011-CX. Dated 29/04/2011 has clarified that Cenvat credit is admissible on the services of the sale of the dutiable goods on commission basis.
There are no reason to sustain the impugned order. Same is set aside - appeal allowed.
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2017 (10) TMI 1638
CENVAT Credit - input services - Hotel Services/Mandap Keeper Services - Designing and Scrip Writing Services - HELD THAT:- Both the lower authorities have not considered the provisions of definition of Input Services as per Rule 2 (l) of CCR, 2004 in its correct perspective. Similar issue of availment of Cenvat on the Design Services and Accommodation Services was considered by Tribunal Bench in the case of M/S. DR. REDDY'S LABORATORIES LTD. VERSUS CC, CE&ST, HYDERABAD-IV [2016 (11) TMI 858 - CESTAT HYDERABAD] and held in the favour of the assesses.
The ratio of the aforesaid decision of M/s Dr. Reddys Laboratories Ltd would apply in this case - the impugned order is unsustainable and liable to be set-aside - Appeal allowed.
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2017 (10) TMI 1632
Remission of Central Excise Duty - remission denied on the ground that the guidelines contained in Supplementary Instructions of 2005 in the Central Excise Manual issued by the Central Board of Excise & Customs, mandating that a copy of FIR be filed within twenty-four hours of the incident with the officer in charge of the Range, had not been complied with - sufficient reason for denial of the claim for remission, present or not - HELD THAT:- The authority to grant remission is the Commissioner of Central Excise who is also required to be satisfied that the destruction was owing to unavoidable circumstances. The impugned order has rendered a clear finding of adequate care not having been taken by the appellant. In the grounds of appeal, nothing has been brought on record to convince that the finding in the impugned order is erroneous. It is also amply clear that the appellant has, without justifiable cause, delayed the filing of intimation. It is not without reason that the guidelines prescribed in Supplementary Instruction 2005 require lodgement of FIR within twenty-four hours of accident. Mere lodgement of FIR immediately after incident and filing claim for insurance claim is no substitute for ascertainment of revenue implication which are triggered only upon intimation to the jurisdictional office which was not done. Insurance payment is no proof of accidental occurrence which is a necessary statutory pre-requisite for grant of remission. Remission is a special privilege that is accorded only in the prescribed circumstance as goods become leviable to duty immediately upon manufacture.
There is no reason to interfere with the impugned order - Appeal dismissed.
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2017 (10) TMI 1586
CENVAT Credit - capital goods or not - goods used in the machineries installed in their factory for production - goods used in the machineries installed in their factory for production - inputs or not - Rule 57AA of the Central Excise Rules, 1944 - applicability of decision of the Tribunal's larger Bench in VANDANA GLOBAL LTD. VERSUS CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - HELD THAT:- The Division Bench in the case of M/S. THIRU AROORAN SUGARS, M/S. DALMIA CEMENTS (BHARAT) LTD. VERSUS CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, THE COMMISSIONER OF CENTRAL EXCISE [2017 (7) TMI 524 - MADRAS HIGH COURT] has also taken into account, the submissions made by the learned counsel appearing for the Revenue that, the issue raised in the said batch of cases cannot be decided on the basis of COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS LTD. [2010 (7) TMI 12 - SUPREME COURT], but, only on the basis of SARASWATI SUGAR MILLS VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III [2011 (8) TMI 4 - SUPREME COURT].
In the impugned order, the CESTAT, SZ, Chennai, by only relying upon the Larger Bench decision of the VANDANA GLOBAL LTD. VERSUS CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)], has dismissed the appeal filed by the assessee, rejecting the contention that the Structurals and allied materials claimed to be parts of the capital goods/inputs capable of claiming Cenvat credit. Since the issue raised before the Tribunal ( CESTAT ) ought not to have been decided only on the basis of the decision of the Larger Bench of the CESTAT in Vandana Global's case, and in view of number of decisions of the Division Bench of this Court, which is the jurisdictional High Court, the impugned Judgment of the CESTAT, is liable to be interfered with.
The substantial questions of law raised herein by the assessee, is answered in favour of the assessee and against the Revenue - Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1576
Scope of SCN - Orders show that the penalty has been imposed under Section 11 AC of the Central Excise Act, 1944 while SCN seeks to impose penalty u/r 15 of the Cenvat Credit Rules, 2004 - HELD THAT:- It is on records and undisputed that the appellant herein had issued invoices during the period 2006-2010 in respect of the Customs Duty and the Cesses. The appellant herein is a first stage dealer and can issue the invoice only passing of the Cenvat credit in respect of the duties which can be passed on to purchasers. Since it is undisputed the Custom duty and Cesses which has been passed on by the appellant could not have been done so, there is violation of the provisions of Central Excise Rules, 2002.
Though the lower Authorities have imposed penalty under Section 11AC of the Central Excise Act, 1944, the Penal provisions under Rule 26 of the Central Excise Rules, 2002 gets attracted in the case in hand in as much that there is passing of ineligible Cenvat credit by the appellant to their purchasers.
Appeal dismissed.
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2017 (10) TMI 1570
Maintainability of appeal - SSI Exemption - Marketability of manufactured product - HELD THAT:- The appeal is accordingly dismissed by refusing admission.
The delay is condoned.
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2017 (10) TMI 1518
Levy of late fine - Delay in filing return versus non-filing of return - validity of Rule 12(6) of Central Excise Rules, 2002 - vires of Section 37(3) of Central Excise Act, 1944 - It is contended that even if there is no challenge to Rule 12(6) the lower authorities have wrongly invoked a provision that is pertinent to late filing whereas there is a case of non-filing.
HELD THAT:- Rule 12(6) stipulates the payment of an amount for late filing which is not penalty but is a fee for regularization and hence reliance on the decision of Tribunal in the case of Anil Products Ltd. v. Commissioner of Central Excise, Ahmedabad [2011 (5) TMI 500 - CESTAT, AHMEDABAD] is misplaced - Turning to the contention that the said rule is not invocable for non-filing of returns, it is not in dispute that these returns have not been, should have been and would have to be filed at some point of time; that the appellant has not yet filed those returns indicates that gross disregard for the law.
Necessarily as and when those returns are filed, all of them would stand delayed by more than 200 days from due date; consequently, ₹ 20,000/- will apply. Hence, there is no requirement to set aside the demand for this fee in the impugned order - appeal dismissed - decided against appellant.
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2017 (10) TMI 1494
CENVAT credit - plates, MS angles, MS channels, MS plates, HR sheet, MS joist and welding rods, etc. - denial on the ground that the appellate authority without examining the records of the respondent, has extended the Cenvat benefit - it was decided that credit rightly allowed - HELD THAT:- There is no merits in the SLP - SLP dismissed.
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2017 (10) TMI 1484
Exemption from filing certified copy of the impugned order is granted - Permission to take on record additional documents is granted.
HELD THAT:- Issue Notice.
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2017 (10) TMI 1483
CENVAT Credit - input services - outdoor catering service received inside its factory for supply of food to its employees - HELD THAT:- The learned Commissioner have misdirected himself by reading the word ‘employees’ instead of the word ‘employee’ in the exclusion clause C, thus the impugned order is erroneous and vitiated. Further, the learned Commissioner have refused to follow the order of this Tribunal. On similar facts and circumstances and on this ground also the impugned order is fit to be set aside.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1479
Doctrine of merger - Scope of SCN - case of appellant is that the department has raised the fresh penalty which was not in the original orders passed by the department - HELD THAT:- For the period under consideration, the matter finally had reached to the Hon’ble Supreme Court where all the orders were merged in the order passed by the Hon’ble Supreme Court as per the doctrine of merger. If any issue was not contested or raised, the same cannot be raised again before the Tribunal - However, the appellant is always at the liberty to raise the issue before the Supreme Court by way of Interim Application, if advised so.
Appeal disposed off.
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2017 (10) TMI 1438
Clandestine removal - certain manufactured goods have not been entered in statutory records - certain torn out invoices were also found in dustbin - case of appellant is that neither invoice no. is mentioned nor name of the consignee is mentioned therefore it cannot be alleged that goods has been cleared clandestinely - Held that:- In the case of clandestine removal neither invoice no. is required nor the name of the consignee is required. Only modus operandi is to be seen - The Revenue has been able to produce evidence in form of the torn off invoices and statement of Shri Nagappa certifying the allegations made by the Revenue.
The contention of the appellant that the said statement has been retracted by way of an affidavit which has been placed on record at the time of reply to the show cause notice and same has not been considered. I find that the affidavit which has not been filed with the Department in time cannot be the basis for retraction that the statement has been retracted on next day by Shri Nagappa. Therefore, the retraction is not admissible.
Revenue has been able to prove clandestine removal of goods on the basis of the torn of invoices recovered during the course of investigation - demand with interest and penalty upheld.
Demand of ₹ 32,815/- (Rupees Thirty-Two Thousand Eight Hundred and Fifteen only) has been confirmed on the goods seized during the course of investigation as the said goods has been cleared on payment of duty during the said period is set aside.
Penalty imposed on Shri Raviraj partner - Held that:- As M/s. Maharaja Industries is partnership firm, therefore separate penalty on the partner cannot be imposed. Therefore, penalty imposed on Shri Raviraj, partner is set aside.
Appeal allowed in part.
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2017 (10) TMI 1433
SSI Exemption - use of brand name of others - it was alleged that the appellant on the seat cover was using the brand name of “Hind Ware” which was owned by M/s. Hindustan Sanitary Ware Industries - Held that::- The appellant was doing a job work/manufacturing exclusively for M/s. Hindustan Sanitary Ware Industries. No such item was sold in the market or third party. The final packing was also done at the factory premises as per the instruction of M/s. Hindustan Sanitary Ware Industries - When it is so, the brand name was not used by the appellant for its own benefit but it was a part of job work/ business by putting the label of the brand name and hand over after packing to the M/s. Hindustan Sanitary Ware Industries.
There is no justification to sustain the impugned order and the same is hereby set aside - appeal allowed decided in favor of appellant.
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2017 (10) TMI 1432
Concessional rate of duty for goods falling under Chapter 56, made of cotton, not containing any other textile material - benefit of N/N. 29/2004-C.E., dated 9-7-2004 as amended by N/N. 7/2012, dated 17-3-2012 - Department was of the view that the goods manufactured by the appellant contained other textile materials along with cotton and hence, not entitled to take concessional rate of duty under the notification - period of dispute is July, 2008 to June, 2014 - Held that:- From the test results, it is found that the appellant has used raw materials in the form of cotton, not only cotton but also other fibres such as wool acrylic, etc. - In the finished goods also, the chemical examiner has recorded presence of acrylic polyester, wool, nylon and viscose mixed in cotton.
The notification extends the concessional rate of duty only for goods of Chapter 56 if the goods are made of cotton not containing any other textile material - The test result has clearly shown that the finished goods manufactured by the appellant contain significant amount of fibres other than cotton also. Consequently the benefit of exemption will not be available to the appellant.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 1431
Rebate of duty on the exported goods - handicrafts - applicant was earlier a hundred per cent EOU and they subsequently opted out of EOU Scheme - duty was paid at the time of debonding of unit - rejection of rebate on the ground that no central excise duty was paid by the applicant as DTA Unit and the duty paid by hundred per cent EOU was paid because it was required to be paid at the time of de-bonding of the unit - Held that:- In the instant case the goods had been cleared by a hundred per cent EOU on clearance of goods into DTA in terms of proviso to Section 3 of the Central Excise Act whose status became at par with the duty paid goods available in the market. He has further observed that it is not a case of clearance of excisable goods on payment of excise duty for export under claim of rebate but is a case of export of goods already lying with them as duty paid goods. Rebate of duty on goods initially cleared into DTA but which are subsequently exported is not covered under Rule 18 of CER, 2002 - The Commissioner (Appeals) has correctly observed that earlier payment of duty at the time of de-bonding of goods was made by the applicant as a hundred per cent EOU and not by the applicant as a DTA Unit who actually exported the goods. The different status of the applicant as hundred per cent EOU and as DTA Unit is supported by the very fact that earlier the applicant had different registration and subsequently after de-bonding of the goods the applicant got the earlier registration changed as DTA Unit.
It is beyond any dispute that they did not pay any separate duty of excise on the exported goods when these were cleared from their factory under the ARE-1s and thus it cannot be accepted that the applicant exported the goods on payment of Excise duty under duty rebate claims. Accordingly, the applicant is not found eligible for rebate of duty in respect of exported goods simply for the reason that they had earlier paid duty while these were de-bonded from hundred per cent EOU Scheme - revision application rejected.
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2017 (10) TMI 1430
Rebate of duty - export of goods - DI pipes - rejection of rebate on the ground of Jurisdiction - rebate rejected on the ground that the said rebate claim falls under the jurisdiction of Assistant Commissioner, Division KDH-I Khardah, West Bengal wherefrom the goods were exported and not falling in the jurisdiction of Bokaro Division where the respondent filed the rebate claim - Held that:- It cannot be overlooked that respondent was compelled to send the semi-finished DI pipes to the Khardah unit for some minor job work due to not receiving any response from Commissioner of Central Excise, Ranchi under Rule 16B of C. Ex Rules for sending the goods for job work to Khardah unit. Moreover, the duty of Excise has been paid by the respondent in Bokaro Division only and rebate of duty is also claimed against the duty paid in the Bokaro Division only. No duty is paid by the unit at Khardah and, therefore, respondent’s rebate claim does not have any nexus with the Central Excise Division covering Khardah unit.
The Government does not find any fault in the order of Commissioner (Appeals) and no merit is found in Revision application filed by the applicant - rebate cannot be rejected on this ground - revision application dismissed.
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2017 (10) TMI 1429
CENVAT Credit - export of goods - duty on exported goods paid from wrongly availed Cenvat credit - Held that:- The Government has noticed that the applicant has also not disputed the fact that duty paid by them on exported goods was actually from the fraudulently availed credit as held by the Commissioner (Appeals). But still in the Revision Application the applicant has stressed that the Cenvat credit wrongly availed by them has already been paid by them as per order of the Settlement Commission and after having done so the duty paid on exported goods from even wrong Cenvat credit cannot be said to be paid from inadmissible credit. But the Government does not find any substance in this argument as the fact still remains that the exported goods remained non-duty-paid goods even after payment of an amount as per Settlement Commission’s order.
The order passed by the Settlement Commission is only to settle the tax dispute and it cannot regularise the fraudulent actions of the applicant from the retrospective effect - Thus, the Government finds no fault in the observation of the Commissioner (Appeals) that the Cenvat credit used to discharge the duty on export goods was non-existent in the applicant’s account and thus no rebate claim is justified on such duty.
The Government does not find any fault in Commissioner (Appeals)’s Order - the Revision Application filed by the applicant is rejected.
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2017 (10) TMI 1428
Rebate claim - Rule 18 of the Central Excise Rules, 2002 - area based exemption claimed - rejection on the ground that since the manufacturer M/s. Mohini Metal Industries, Jammu, had already taken refund of excise duty paid on the exported goods, rebate of duty was not admissible to the applicants - rejection of appeal for the second time - whether the applicant is eligible for rebate of duty when refund of duty has already been granted to the manufacturer under an area based exemption scheme enshrined in N/N. 56/2002-C.E.?
Held that:- Under Rule 18 of Central Excise Rules, 2002 first and foremost condition is that exported goods should be duty paid. But in this case no duty has been paid on the goods cleared by the Jammu based manufacturer as the goods manufactured in whole of J&K State are exempted under Notification No. 56/2002. The exemption from duty on the goods manufactured in J&K is not operative at the time of clearance of goods as is usually done in other instances of exemption and it is extended by granting refund of duty subsequent to clearance of the goods. But undoubtedly the goods are exempted by virtue of the above Notification which is issued under Section 5A of the Central Excise Act which empowers the Government to issue exemption Notification.
The net effect of getting duty amount back to the manufacturer has been that no duty amount was actually paid on the exported goods. When this is a situation, the first condition in Rule 18 that the exported goods should be duty paid is not fulfilled in this case and consequently the applicant’s present case is not covered in the four corners of the Rule 18 and Notification No. 19/2004-C.E. (N.T.) - It cannot be denied that Notification No. 37/2007-C.E. (N.T.), dated 17-9-2007, issued by C.B.E. & C., providing that the rebate of duty will not be available in respect of goods manufactured by a unit enjoying any area based exemption scheme, was not in existence at the time the applicant procured goods from M/s. Mohini Metal Industries.
The applicant is not eligible for rebate of duty in this case irrespective of whether the above referred Notification No. 37/2007 was in vogue at the time of procurement of the goods by applicant in this case - the revision application of the applicant is not found maintainable and hence rejected.
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2017 (10) TMI 1423
Maintainability of appeal - amount involved in the appeal - Section 35-B of the Central Excise Act, 1944 - Imposition of penalty of ₹ 10,000/- on each of the importers - Held that:- As per proviso (ii) to Section 35-B of the Central Excise Act, 1944, the Tribunal can decline to entertain an appeal where the demand, fine or penalty is less than ₹ 2 lacs. Certainly, in the present each appeal the demand, fine or penalty is less than ₹ 2 lacs. When it is so, then we decline to adjudicate the appeals. Thus, the appeals are not maintainable.
Appeal dismissed as not maintainable.
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2017 (10) TMI 1414
CENVAT Credit - input services - “Diamond Core Drilling Services” availed by them in their captive mines - Held that:- Service Tax has been paid on the „Diamond Core Drilling Services” in the captive mines area of the assessee-Appellants. The said drilling operations are necessary for survey and exploration of their mining area to find the prospective potential for mining zinc ore - this is essential for the core operation of manufacture of Zinc Ore by the assessee-Appellants and the same is carried out in their own mines only - credit allowed - appeal allowed - decided in favor of appellant.
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