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Central Excise - Case Laws
Showing 361 to 378 of 378 Records
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2017 (10) TMI 19 - KARNATAKA HIGH COURT
Permission to withdraw the petition - non leviability of Excise Duty on ‘Press-Mud’ which emerges as a waste or as a by-product during the course of manufacture of Sugar - Held that: - the petitioner assessee Company filed its objections in pursuance of the impugned Notice before the concerned Authority - an adjudication order in pursuance of the said Show Cause Notice has already been passed and an Appeal against that order is pending before the Appellate Authority, the present petition is even otherwise also infructuous and therefore the same is accordingly now permitted to be withdrawn - application of petitioner to withdraw petition allowed.
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2017 (10) TMI 18 - MADRAS HIGH COURT
Validity of and applicability of Rule 96 ZP (3) of the Central Excise Rules, 1944 read with Sub-Rule 4 of Rule 3 of the Hot Re-Rolling Steel Mills Annual Capacity Determination Rules, 1997 - Held that: - when the petitioner is before the Tribunal, which is the last forum for deciding questions of fact, this Court is inclined to grant liberty to the petitioner to canvas all points in the pending appeal before the Tribunal. Accordingly, the question, which was framed for consideration, is answered in the affirmative and therefore, there would not be any necessity for this Court to go into the merits of the contentions raised in this writ petition - this writ petition is disposed of giving liberty to the petitioner to canvas all points in the pending appeal before the CESTAT, which includes the validity and the correctness of the order dated 24.03.1998, as also the order dated 11.06.2003 both passed by the Commissioner of Central Excise.
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2017 (10) TMI 17 - ANDHRA PRADESH HIGH COURT
100% EOU - Refund of unutilised CENVAT credit - time limitation - the CESTAT Bangalore, relying on the judgment in Eaton’s case [2010 (12) TMI 71 - CESTAT, MUMBAI], held that the relevant date for filing the refund application under Sec.11B of the Excise Act would be the date of receipt of consideration for service rendered and not the date when the services were provided. This finding of the CESTAT is challenged in the appeals on the main plank of argument that there is a contrary decision reported in M/s. Affinity Express India Pvt. Limited vs. Commissioner of Central Excise, Pune-I [2014 (6) TMI 593 - CESTAT MUMBAI] - the point is whether M/s.Affinity’s case will have any impact on the present appeals? - Held that: - The Larger Bench of CESTAT, West Zonal Bench, Mumbai having noticed the decision of a Division Bench of Tribunal, Delhi in Bechtel India Pvt. Ltd. vs. Commissioner of Central Excise, Delhi [2013 (7) TMI 490 - CESTAT NEW DELHI] to the effect that the refund can be claimed after foreign exchange was received in India in respect of export of service, held that in view of the Division Bench decision and as no contrary decision was brought to its notice, no reference lies to the larger Bench. Thus in essence, the decision in Bechtel’s case being a decision rendered by Division Bench was approved and held to prevail over the decision in M/s.Affinity’s case relied upon by the appellant. As such, the decision in M/s.Affinity’s case will not have any impact on the present appeals.
Whether CESTAT is correct in holding that the assessee is eligible to claim of refund of CENVAT credit on construction service relying on case of Infosys Ltd. [2014 (3) TMI 695 - CESTAT BANGALORE]? - Held that: - It should be noted that the appellant in the Grounds of Appeal mentioned that as against the Infosys Ltd.’s case (2 supra), the department filed appeal before the Hon’ble Apex Court and the same is pending but failed to produce copy of the Grounds of Appeal or any stay order granted by Hon’ble Apex Court staying the judgment in Infosys Ltd.’s case. It is also not known whether a final order is passed by the Apex Court in the said alleged appeal. In these circumstances, we can only uphold the decision of the CESTAT, Bangalore relying on Infosys Ltd.’s case. This point is accordingly answered against the appellant.
Whether the Tribunal is correct in remanding the matter with regard to the claim of refund of CENVAT credit on other services such as courier service, repair or maintenance services, telephone service, rent-a-cab service, management consultant service, chartered accountant service etc, since the said services are not having nexus with their output services i.e Consulting Engineering Service which was exported online? - Held that: - This point is concerned, the CESTAT, Bangalore only remanded the matter to the original adjudicating authority to consider the other refund claims afresh. As such, we do not find any infirmity or irregularity therein. The appellant can put-forth its objections if any with regard to those claims and the original adjudicating authority can pass an order on merits with regard to the other claims. Accordingly this point is answered.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 16 - CESTAT BANGALORE
CENVAT credit - reversal of credit - change in classification of product - penalty - Held that: - the penalty imposed seems to be unwarranted as the issue was regarding the classification due to change in the Tariff. It is a settled law that the penalty need not be imposed due to the dispute on classification - penalty set aside.
Reversal of CENVAT credit - clearance of exempt intermediary product/by product - Neem Oil, De-oiled cake, Husk and Spent Meal - Held that: - When it is admitted and accepted that these products Neem Oil, De-oiled cake, Husk and Spent Meal arise during the course of manufacturing of fungicides and insecticides, the said products cannot be held as an exempted final product manufactured by the appellant - the law is settled by the apex court in the case of DSCL Sugar Ltd. [2015 (10) TMI 566 - SUPREME COURT], where it was categorically settled the law that waste products arising during the course of manufacture of final products cannot be covered under the definition of manufacture as per Section 2(f) of Central Excise Act, 1944 thereby laying to rest the Revenue s contention that any product that emerges during the course of manufacturing and having commercial and technological meaning of finished goods is not a manufactured product.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 15 - CESTAT BANGALORE
CENVAT credit - whether the appellant herein is manufacturer of DG sets were discharging appropriate Central Excise duty and were availing the benefit of Cenvat credit of the Central Excise duty paid on inputs? - Held that: - the appellant herein could have been under bonafide impression that they have to discharge the Central Excise duty on the engines removed based upon the transaction value and has done so by reversing the said amount under the Cenvat credit, cannot be held as intention to remove the inputs by paying excess amount to enable the purchaser to avail Cenvat credit - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 14 - CESTAT HYDERABAD
Clandestine manufacture and removal - copper tube - Penalty - Held that: - appellant Shri Dilip Kothari, Shri Sudhir Kothari and Shri Ajay Vyas who are the proprietors of their respective proprietorship firms have in their statement recorded by the lower authorities categorically admitted that they had issued blank challans/invoices to M/s SMTPL. The said blank challans/invoices were used by the said SMTPL for clandestine removal of the manufactured goods under the guise of trading activity - there is element of collusion by these three trading firms with SMTPL with intent to evade duty - The appellants having confessed to handing over of the challans and also to the fact that they were in fact aware of the clandestine removal of the goods by the said SMTPL, we have to uphold the findings that all the three appellants herein are aware of the act that M/s SMTPL is going to remove the excisable goods clandestinely - all the three appellants are liable for imposition of penalty under Rule 26 of the Central Excise Rules 2002, the quantum of penalty reduced to ₹ 5,00,000/- each.
As regards penalty imposed on Dhiran Transport Corporation, there is no rebuttal to the adjudicating authority's findings that the said Dhiran Transport Corporation had not issued any LRs for the transport of the goods clandestinely removed from SMTPL premises but have issued unauthorised unsigned slips, due to which it could not be said that the said Dhiran Transport Corporation was not aware of the unauthorised removal of the goods from SMTPL's premises - penalty upheld - quantum of penalty reduced to ₹ 2,00,000/-.
Appeal allowed - decided partly in favor of appellant.
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2017 (10) TMI 13 - CESTAT ALLAHABAD
Capacity of production - duty short paid was demanded on the same allegation of the machine being double track instead of singe track, along with penalty - whether the one packing machine in question, is a single track machine or a double track machine? - Held that: - the issue has been decided by the Hon’ble Allahabad High Court in the case of Commissioner of Central Excise Vs Dharampal & Satyapal Ltd. [2015 (10) TMI 1105 - ALLAHABAD HIGH COURT], where it was held that the machine purchased by the assessee is a single track machine, the duty payable by the assessee on the basis of a single track machine, should have been levied. The Commissioner fell in error in treating the said machine as a two track machine - appeal dismissed - decided against Revenue.
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2017 (10) TMI 12 - CESTAT NEW DELHI
100% EOU - Debonding of unit - non-declaration of stock - Section 11 AC of the Central Excise Act, 1944 - Held that: - Perusal of the provisions of Section 11 AC ibid reveals that the said provision can be invoked in the eventually, when the duty has not been paid due to the reason of fraud, suppression etc.
Since, the onus to prove suppression etc. entirely lies with the Department, which in the present case, has not been discharged with the help of any tangible evidence, the imposition of penalty under Section 11 AC ibid cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 11 - CESTAT HYDERABAD
Waste - dutiability - plastic waste that arises during the recovery of metal scrap - Held that: - If along with every manufactured item scrap is generated, then that scrap cannot be considered as manufactured item - the waste which gets generated in the facts of this case, is not excisable under any tariff heading, and remains un-contradicted by the Revenue in their appeals either before the adjudicating authority or before the 1st Appellate Authority or even before us - demand set aside - appeal dismissed - decided against Revenue.
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2017 (10) TMI 10 - CESTAT NEW DELHI
Manufacture of Steel Girder Bridge, bridge parts and span suspension bridge parts falling under First Schedule to the Central Excise Tariff Act, 1985 under Chapter sub-heading No.7308.10 - excisability/movability - case of appellant is that process involved does not amount to manufacture as they are engaged in erection, fabrication of the structures at site permanently embedded to earth - Held that: - the matter is covered by the Larger Bench decision of the Tribunal in the case of Mahindra & Mahindra Ltd. Vs. CCE, Aurangabad, Chandigarh, Kanpur & Chennai [2005 (11) TMI 103 - CESTAT, NEW DELHI] whereunder inter alia it has been held that steel structures and parts of steel structures mentioned in the parenthesis of Heading 73.08 of Central Excise Tariff illustrating parts of structures viz. bridges and bridges sections, lock gates, towers, lattice masts, roofs, roofing frameworks, towers, doors, windows and their frames and thresholds for doors, and the like articles in their movable state will be subject to excise duty under Heading 7308, notwithstanding their getting permanently fixed in the structures. Further it also held that the plates rods, angles, shapes, sections, tubes and the like prepared for use in structures of the types covered under the Heading 7308 will also be excisable goods subject to duty in their pre-assembled or disassembled state - there is no doubt that the subject process and the items in question are covered under the process of ‘manufacturing’ under Section 2(f) of the Central Excise Act, 1944 and the liability of duty of Central Excise on the subject items has to be sustained.
Penalty - Held that: - as there was lack of clarity on the subject of liability of duty for the subject items during the relevant period and when there were interpretational issues involved, following the ratio of the Hon’ble Punjab & Haryana High Court’s decision in CCE Vs. Jain Ganesh Processors [2011 (3) TMI 134 - PUNJAB AND HARYANA HIGH COURT], no penalties are liable to be imposed on the appellants.
Appeal allowed - decided partly in favor of appellant.
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2017 (10) TMI 9 - CESTAT NEW DELHI
CENVAT credit - manufacture of dutiable as well as exempt goods - non-maintenance of separate records - Rule 6 of the Credit Rules - Held that: - in assessee’s own case for the earlier period, the issue has came up before the Tribunal in Grasim Industries Ltd. Vs. CCE, Indore [2006 (9) TMI 467 - CESTAT, MUMBAI], where it was held that There is no sale of steam in transfer of steam between two divisions. Therefore, there is no sale price of steam available in such cases. Consequently, the question of reversing 8% of the sale price of steam cannot apply - appeal dismissed - decided against Revenue.
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2017 (10) TMI 8 - CESTAT NEW DELHI
Valuation - related party transaction - Rule 8 of the Valuation Rules - Held that: - It is not disputed that M/s. Kunal Loha Chem and M/s. Sona Wires are interconnected undertakings - Even though the two buyers are interconnected undertakings as per section 4(3)(b)(i) of Central Excise Act, merely because they are interconnected undertakings, the transaction value cannot be rejected - There is no justification for rejecting the lower transaction values to related buyers and re-determination of value by costing method - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 7 - CESTAT NEW DELHI
Area Based Exemption - substantial expansion of unit - N/N. 49/2003 dated 10.6.03 - whether the respondent assessee has increased the installed capacity of its plant and machinery by over 25% which is the requirement to be satisfied to be eligible for area based exemption under the category of substantial expansion? - Held that: - The increase in the installed capacity by more than 25% has been certified by the independent Chartered Engineer, Shri Rohit Oberai of M/s. Oberoi Associates, Kashipur. The same fact has also been endorsed by the Professor of Department of Paper Technology, Saharanpur as well as IIT Roorkee. The reports submitted by the technical experts reveal that such increase in installed capacity is the result of changes carried out by the respondent by way of replacement material / consumables and by installing machinery meant for improvement in quality of products.
Similar issue decided in the case of COMMISSIONER OF CUS. & C. EX. Versus UTTARANCHAL IRON & ISPAT LTD. [2010 (12) TMI 491 - UTTARAKHAND HIGH COURT], where it was held that it is the factum of substantial expansion which is the determinative factor for grant of exemption. It is immaterial whether the substantial expansion is as a result of additional or new plant and machinery or by renovation /modification of existing plant and machinery.
Appeal dismissed - decided against Revenue.
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2017 (10) TMI 6 - CESTAT NEW DELHI
Classification of goods - chewing tobacco and preparation containing chewing tobacco (kamam) - whether classified under 24039960 as “tobacco extracts and essence” or is to be classified under 24039920? - Held that: - the impugned goods are classifiable under sub heading 240399.20 as held by the lower authorities. - Hon’ble Supreme Court in the case of Dharampal Satyapal Vs. CCE New Delhi [2005 (4) TMI 66 - SUPREME COURT OF INDIA] classified the item under “tobacco and preparation of chewing tobacco” under sub heading 2404.49/2404.40, the case does not apply in the facts of present case as it was delivered in the context of the Central Excise Tariff which was different at the relevant time.
Extended period of limitation - Suppression of facts - Held that: - The Commissioner (Appeals) held them guilty of suppression for not taking “initiative” and not consulting the department if they had any doubt while the appellants never stated that they had any doubt. In fact they have claimed that they were clearly of the view that their goods were classifiable where they classified them. The Commissioner (Appeals) has not mentioned anywhere as to what they suppressed which was required to be disclosed as per law. Not taking suo moto initiative has never been a valid ground for sustaining charge of suppression - The very fact that they have been paying duty as per Section 4 also goes to show that prima facie they had no intention of hoodwinking the department - demand restricted to normal period - The adjudicating authority is directed to re-quantify the demands accordingly.
Penalty - Held that: - There is no justification to impose any penalty, this being a classification dispute.
Appeal allowed - decided partly in favor of appellant.
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2017 (10) TMI 5 - CESTAT NEW DELHI
Suo moto adjustment of refund amount towards pending demand under section 11 - Held that: - similar issue decided in the case of VOLTAS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, HYDERABAD-II [2006 (5) TMI 232 - CESTAT, BANGALORE], where it was held that refund cannot be adjusted against the demands which are sub-judice and section 11 should be involved only when the demands have reached finality and should not be invoked even at the initial stage - refund to be ordered to be paid without any adjustment - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 4 - CESTAT NEW DELHI
Refund of excess duty paid - unjust enrichment - Held that: - it is evident that the assessee-Respondents have made an excess billing of ₹ 3,60,00,000.00 involving duty amounting to ₹ 59,32,800/-. The same was credited with the excess amount of billing in the name of their customer i.e. M/s Chattisgarh State Power Generation Company Ltd., Raipur. As the customer has not paid the amount, so there is no question of unjust enrichment - refund allowed - appeal dismissed - decided against Revenue.
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2017 (10) TMI 3 - CESTAT NEW DELHI
SSI exemption - clubbing of clearances - natural justice - non-production of required documents by appellants - Held that: - it appears that both the units have no independent plant and machinery and were totally inter-dependent on each other for manufacturing its product including voltage stabilizers in complete form. M/s. Powerkon System Ltd. has no electricity connection and borrow the power from M/s. Servokon System Pvt. Ltd. but without making any payment of the bill. Labour in both the units were common. Godown was also common - the department by the impugned order has clubbed the clearance of M/s Servokon Systems Pvt. Ltd. and M/s. Powerkon Systems Pvt. Ltd. by denying the exemption as per notification. In the peculiar facts and circumstances of the case, same appears reasonable.
Clandestine removal - Held that: - kaccha challans were recovered. Goods were seized which were not mentioned in the stock register. In fact, there was no stock register. After making the verification and statement from the buyers and by clubbing the material the department has issued Show cause notice and demanded the duty. In the peculiar facts and circumstances of the case, same appears reasonable - demand upheld.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 2 - CESTAT KOLKATA
Clandestine removal - consumption of electricity - the lower appellate authority relied upon the various case laws on clandestine removal and concluded with observation that the consumption of electricity appears suspicious - Held that: - the findings of the lower appellate authority is contradictory inasmuch as, he is accepting that the Department had variable data on substantial power consumption and thereafter, on the basis of various case laws, it has been held that the consumption of electricity appears suspicious - the charge of clandestine removal is to be established on examination of facts of each case and not merely on the basis of case laws.
The matter is remanded to the Commissioner (Appeals) to decide afresh - appeal allowed by way of remand.
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