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Central Excise - Case Laws
Showing 61 to 80 of 378 Records
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2017 (10) TMI 1179 - CESTAT ALLAHABAD
Interest on delayed refund - Section 11BB of the CEA - relevant date - Held that: - interest on delayed refund is payable under Section 11BB of the Act on expiry of the period of three months from the date of application under Section 11B(1) of the Act and not from the date of order of refund or appellate order - we direct Mr. Mahabir, Deputy Commissioner, Central Excise/ GST, Division-II, C-56/42, Sectory-62, Noida - 201307 to file an explanation/ show cause reply, as to why not a reference be made to the Hon'ble Allahabad High Court for drawing the proceedings of contempt under the Contempt of Court Act for disobeying the mandate of law amounting to interference in the dispensing of Justice.
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2017 (10) TMI 1178 - CESTAT AHMEDABAD
Demand of differential duty - finished goods and rejects cleared to DTA - Held that: - undisputedly the appellant had cleared the rejected yarn and waste in DTA in excess of 50% of FOB value without permission of the Development Commissioner, accordingly, differential duty was demanded in accordance with proviso to Section 3 (1) of the CEA, 1944 - the issue is now covered by the judgement of the Hon’ble Supreme Court in Sarla Performance Fibers Ltd’s case [2016 (6) TMI 352 - SUPREME COURT] and since the issue pertain to the period prior to the amendment to Section 3 of CEA, 1944 w.e.f 11.05.2001, differential duty calculated taking into account the formula prescribed under proviso to Section 3 (1) of Central Excise Act, cannot be sustained.
The appellant had used raw-materials in the manufacture of said rejected yarn and waste therefore, the demand on the raw-material also cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1177 - CESTAT ALLAHABAD
SSI Exemption - N/N. 8/2003-CE dated 01.03.2003 - Rule 11(2) of the Credit Rules - due to ignorance, credit was not reversed - Department entertained the view that the appellant was not entitled to the exemption under the SSI Notification dated 01.03.2003 on the grounds of non-reversal of the Cenvat Credit of ₹ 2,593/- on 31.03.2005 and non-filing of the intimation that the appellant would be availing full exemption with effect from 01.04.2005.
Held that: - the whole show was notice is misconceived. There is no allegation that the appellant had any credit balance in their Cenvat Credit account as on 01 April, 2005. Under the provisions of Rule 11(2) of CCR, 2004 what is required is to be written off is Cenvat Credit lying unutilized in the Cenvat Credit Register on date of option to avail exemption - Further, the appellant had suo motu deposited the Cenvat Credit on the inputs lying in stock and also given intimation to the Revenue. Such deposit was made prior to issue of show cause notices. Accordingly, the impugned orders are not sustainable.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1176 - CESTAT AHMEDABAD
SSI exemption - dummy units - clubbing of clearances - Held that: - After allowing the benefit of cum-duty-price, the matter was remanded to the adjudicating authority for the limited purpose of re-calculation of the duty, but, we find that the adjudicating authority has misinterpreted the said direction and reconsidered the whole issue again and held that the appellants are not eligible to the benefit of cum-duty-price.
Also on the issue of penalty, this Tribunal after recording the fact that penalty cannot be imposed on the dummy unit, directed the adjudicating authority to pass an appropriate order keeping in mind that penalty cannot be imposed of dummy unit. This direction has also not been followed.
To calculate the exact amount of duty, after extending the benefit of cum duty price, the matter needs to be remanded to the adjudicating authority - appeal allowed by way of remand.
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2017 (10) TMI 1175 - CESTAT CHANDIGARH
N/N. 63/95-CE dated 16.03.1995 - Revenue entertained a view that since the appellant was not one of the units specified in terms of the said N/N. 63/95-CE dated 16.03.1995, the benefit of the Notification, which exempted goods supplied to the Ministry of Defence, cannot be extended to them - Held that: - reliance placed in the case of Commissioner Versus Vulcan Gears [2011 (2) TMI 1347 - Supreme Court of India], where it was held that notification exempts the goods when they are supplied directly to the Ministry of Defence by the companies named therein and in the notification, the appellant’s name was not included in the names of the companies - appeal allowed.
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2017 (10) TMI 1174 - CESTAT NEW DELHI
Valuation - includibility - cost of FOC material supplied, amortized cost of tools supplied by HSCIL and conversion/job charges including profit at the time of clearance of their finished goods to HSCIL - Held that: - an identical issue of valuation has come up before the Tribunal in the case laws relied by the appellant in the case of M/s Shivani Detergent Pvt Ltd [2016 (11) TMI 1342 - CESTAT NEW DELHI], where the identical issue has been settled by the Tribunal in Advance Surfactants India Ltd. [2011 (3) TMI 1380 - CESTAT, BANGALORE], where it was held that the ratio laid down by the Hon’ble Supreme Court in the case of Ujagar Prints (1989 (1) TMI 124 - SUPREME COURT OF INDIA) will squarely apply i.e. to ascertain the assessable value on the cost of materials plus processing charges - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1173 - CESTAT NEW DELHI
Valuation - freight and insurance shown separately on the invoices - The department was of the view that duty has likely to be paid on equalised freight recovered from the customers - Held that: - There is no dispute that the sales were at the factory gate and the amount of freight, though charged at equalised basis, was being separately mentioned in the invoices - when the sales are at the factory gate, the deduction of freight has to be allowed even if the freight is charges at equalised basis - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1172 - CESTAT NEW DELHI
Area Based Exemption - Benefit of N/N. 50/2003 dated 10.6.2003 - denial of benefit on the ground that appellant has not filed the declaration under N/N. 76/2003 dated 5.11.2003 - Held that: - identical issue has come up before the Tribunal in the case of Aditya Packaging vs. CCE, Meerut I [2017 (6) TMI 1024 - CESTAT NEW DELHI], where it was held that the conditions inserted in N/N. 50/2003-CE are mandatory and cannot be held as mere procedural requirement - demand upheld.
Penalty - Held that: - this was interpretation of law and the appellate authority has already reduced the penalty from Rupees Six lakh to Rupees Three lakh. But in the peculiar facts and circumstances of the case, the penalty is on higher side, therefore, penalty reduced.
Appeal allowed in part.
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2017 (10) TMI 1171 - CESTAT NEW DELHI
Valuation - Compounded Levy Scheme - stainless steel patta/ pattis - During the period under consideration, the Pollution Control Board has closed the factory and there was no production but the department has demanded the duty in regular scheme - Held that: - identical issue has come up before the Tribunal in the case of M/s. Sarthi Rubber Industries Pvt. Ltd. vs. CCE & ST, Alwar [2017 (3) TMI 1206 - CESTAT NEW DELHI], where it was held that The closure of units admittedly, beyond the control of the assessee/appellant, is not to be treated as a failure to comply with the provisions and conditions of the notification during the period of forced closure of the units - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1170 - CESTAT CHANDIGARH
Valuation - includibility - whether the cost of durable packing material supplied by the buyer can be added to the assessable value of the goods supplied by the assessee? - Held that: - the said issue is covered in favor of the assessee by the decision of this Tribunal in the matter of CCE, Indore V. Grasim Industries ltd. [2014 (4) TMI 650 - CESTAT NEW DELHI], where it was held that the testing charges of those containers would be includible in the value along with the cost of such containers if the containers are of durable and returnable nature, the amortized cost of the container including testing charges during the period of use would be includible in the assessable value - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1120 - MADRAS HIGH COURT
Recovery of the arrears of central excise duty - Garnishee notice - Section 11 of the CEA, 1944 - Held that: - the petitioner has now paid only four instalments and defaulted in payment of the fifth instalment - the first instalments of ₹ 21.54 lakhs was paid on 11.09.2017, and even before the petitioner could take steps to pay the second installment before 22.9.2017, one of the secured creditors, who had lent monies to the petitioner, viz. ICICI Bank had moved the National Company Law Tribunal (Division Bench) Chennai (NCLT) by filing CP/564(IB)/CB/2017, under Section 7 read with Rule 4 of the Insolvency and Bankruptcy Code, 2016 - the petitioner can no longer maintain the present Writ Petition - petition dismissed.
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2017 (10) TMI 1119 - CESTAT NEW DELHI
Clandestine removal - Shortage of inputs and finished goods - substantiation of facts - Held that: - Shri Sandeep Maheshwari, authorised officer of the appellant has only stated that he is unable to explain the reasons of shortage. Such statement, without further corroboration, cannot be accepted as evidence of clandestine removal of goods, without payment of Central Excise duty - further, the stock verification was conducted on average basis, without consideration of the actual weighment of goods. Thus, it cannot be said that the stock position arrived at is correct and proper.
No iota of evidence was produced by the department to prove that the goods found short during verification were removed clandestinely from the factory without payment of Central Excise duty - reliance placed in the case of CHANDPUR ENTERPRISES LTD. Versus COMMR. OF C. EX. & SERVICE TAX, MEERUT-I [2014 (8) TMI 970 - CESTAT NEW DELHI], where it was held that demand cannot be sustained, without substantiation of the fact of clandestine removal of goods - allegation of clandestine removal cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1118 - CESTAT NEW DELHI
Clandestine removal of finished goods and raw material - shortage of stock - stock taking done on the basis of eye estimation - Held that: - in the case of plastic pipe, as per records, it was shown the stock of 3860 Kg where as on physical verification stock was found nil. For that, no clarification was given by the Ld. Counsel for the appellant although stock taking has been done on eye estimation basis. As a particular item is having nil stock, in that circumstances, the charge of shortage and clandestine removal stands proved.
For rest of the demand the revenue failed to prove that the goods found short as stock taking has been done on eye estimation basis. In that circumstances, the rest of the demand is set aside.
Appeal allowed in part.
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2017 (10) TMI 1117 - CESTAT NEW DELHI
Clandestine removal - assessee is of the view that stock taking done on the basis of eye estimation - Held that: - from nowhere of the panchnama as well as the proceedings it is coming out how the wheighment of the stock was done. Moreover, it has mentioned in the panchnama and the statement of Shri Vijay Gupta that weighment of scrap was done only on approximation basis and the assessee repeatedly asked for supply of the weighement slips which has not been provided to the assessee - As wheighment details has not been produced by the revenue, in that circumstances, it is concluded that the wheighment has been done on eye estimation basis - demand set aside.
The demand of ₹ 15,55, 360/- has been confirmed on the basis of the corroborative statement of Shri Vijay Gupta. As other evidence has been produced by the revenue on record to corroborate the clandestine removal of goods, therefore in the light of the decision of the Tribunal in the case of Devender Sandhu Impex Ltd. V/s Commissioner of Central Excise., Ludhiana [2016 (1) TMI 104 - CESTAT NEW DELHI] on the basis of statement of Shri Vijay Gupta, the demand is not sustainable.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1116 - CESTAT, BANGALORE
CENVAT credit - outward freight - whether appellant is eligible to avail CENVAT credit of service tax paid on outward freight paid by him during 2010-11 to December 2012 and for the month of March 2013? - Held that: - all clearances to their purchasers were ex-works of the recipient of the goods (free of road) - appellants are eligible to avail the CENVAT Credit of the service tax paid on outward freight transaction value - matter is remitted back to the adjudicating authority for limited purpose of arriving at the quantum of CENVAT that is available to the appellant on the service tax paid on the outward freight under transaction value as per the Section 4 of the Central Excise Act.
Liability of interest - Held that: - based upon the quantum which has been arrived at by the adjudicating authority, the appellant has to discharge the interest on the amount of CENVAT credit which has been held ineligible.
Penalty - Held that: - since the issue is of interpretation, there is no warrant to visit the appellant with any penalties.
Appeal allowed by way of remand.
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2017 (10) TMI 1115 - CESTAT NEW DELHI
Interest on delayed refund - whether interest on delayed refund is payable during the period between expiry of three months from the date of filing the refund application for the principal amount, till its refund; or, from the date, when the principal amount was paid by the applicant? - Held that: - the issue with regard to computation of the period for payment of the interest amount is no more res Integra, in view of the judgment of Hon’ble Supreme Court in the case of Shreeji Colour Chem Industries [2008 (9) TMI 12 - SUPREME COURT], wherein it has been ruled that payment of interest has to be made in accordance with Section 11BB ibid, from the date of expiry of three months from refund application, till the date of its refund.
In the present case, since the Tribunal is entertaining and disposing the appeal filed under the Central Excise statute, the provisions contained in the statute alone has to be considered for deciding the issue involved in the appeal. On perusal of the said statutory provisions, it reveals that other than Section 11BB ibid, no other provision exists in the Central Excise statute, dealing with payment of interest from the date of actual deposit of the disputed amount. Thus, such interpretation placed by the appellant cannot be accepted, in absence of any statutory mandates.
The appellant is only entitled for interest for delay of 25 days in sanction of refund amount - appeal dismissed - decided against appellant.
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2017 (10) TMI 1114 - CESTAT, ALLAHABAD
CENVAT credit - whether the appellant is entitled to avail Cenvat credit of service tax on commission paid to service commission agent who causes sale of Sugar & Molasses manufactured by the appellants or not? - Held that: - relying on the decision of this Tribunal in the case of Essar Steel India Ltd. [2016 (4) TMI 232 - CESTAT AHMEDABAD], I hold that appellants are entitled to avail Cenvat credit on commission paid to the selling agent for selling the goods in terms of Rule 2(l) of the Cenvat Credit Rules, 2004 - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1113 - CESTAT NEW DELHI
Clandestine removal - SSI Exemption - power cables including submersible power cable falling under Chapter 85 of the Central Excise Tariff Act - Held that: - For the purpose of Central Excise Act, 1944, there is sufficient material available on record by which it is established that there was a clandestine removal of the goods, especially when the Proprietor, Shri Ravinder Kumar Gupta, had admitted that the goods were manufactured and supplied to the buyers without making any entry in the books - Neither vouchers were prepared nor books were maintained. The driver has admitted that he had transported the goods only on the basis of ‘kachchi parchies’. Meaning thereby, that no vouchers were given to him. Entries made in the ‘kachchi parchies’ stand fully corroborated with the statements of the Proprietor recorded on various dates and the same were not retracted. Not only that, further corroboration comes from the statement of the buyers as also from the driver of the assessee-Appellants’ Company who used to transport the goods under the cover of ‘kachchi parchies’. All the evidences are sufficient to arrive at a finding that the assessee-Appellants were, admittedly, indulged in the clandestine removal of the goods.
Appeal dismissed - decided against appellant-assessee.
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2017 (10) TMI 1112 - CESTAT NEW DELHI
Valuation - freight charges - includibility - Department was of the view that the goods have been sold to the customers at the buyers premises and hence the freight charges collected by the appellant are required to be added to the transaction value for payment of Central Excise duty - place of removal - Held that: - it is evident that the goods have been removed from the factory and sent directly to the premises of the buyers. As per the terms of the purchase order, the appellant is required to deliver the goods at the premises of the buyer and has to bear all liability upto the delivery point - in the instant case, the goods have been sold in terms of section 4(1)(a) except that the excisable goods are to be delivered at the buyers premises. Rule 5 makes it clear that the cost of transportation from the factory gate upto the place of delivery is to be excluded computing the assessable value - freight charges not to be included in the assessable value for the purpose of excise duty.
Explanation 2 to Rule 5 will not be applicable in the facts of the present case since, the place of removal is factory gate and not the premises of buyer of goods.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1111 - CESTAT NEW DELHI
CENVAT credit - inputs - silver nitrate, tungsten powder, hydrazine hydrate etc. which are used in the manufacture of final products - Department was of the view that since the appellant was clearing duty paid as well as exempted products, they are required to reverse the amount at the rate of 5% of the value of clearance of exempted products, in terms of Rule 6(3) of CCR, 2004 - Held that: - Revenue has not brought any evidence on record to establish that duty paid inputs have, infact, been utilized in the manufacture and clearance of exempted products which is the primary requirement to incur the mischief of Rule 6(3) - it is incumbent upon the Revenue to bring on record evidence to indicate that inputs on which cenvat credit has been availed, have been used partially in the manufacture of dutiable goods as well as partially in exempted products. In the absence of such an evidence, it is not proper to raise demand of duty on the basis of doubts.
It is evident that significant quantity of silver on which credit was not taken has also been used in the manufacture of dutiable goods - In the light of fact that appellant has maintained the records, regarding receipt of duty paid inputs and use of the same in the manufacture and clearance of dutiable products, demand is set aside.
Appeal allowed - decided in favor of appellant.
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