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Central Excise - Case Laws
Showing 81 to 100 of 378 Records
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2017 (10) TMI 1110 - CESTAT NEW DELHI
CENVAT credit - returned goods - Rule 16 of the CER, 2002 - Held that: - Cenvat credit can be availed only when the goods are accompanied by documents evidencing the details of the goods, the duty involved as well as mode of transport with registration number of vehicles. Such details are to be entered in invoice which are stipulated under Rule 11 of the Central Excise Rules, 2002. After these particulars are found to be untrue, it gives rise to irrevocable presumption about the genuineness of goods transported and the documents covered by it.
The goods cannot be considered as received by M/s. BEPL in the light of evidence regarding vehicle numbers / GRs. Further, there is nothing on record to indicate that Shri Arvind K Doshi, CEO of M/s. JRPL was instrumental in such activity. Hence, there is no justification for imposing penalty on Shri Doshi, and hence set aside.
Appeal allowed in part.
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2017 (10) TMI 1109 - CESTAT NEW DELHI
Valuation - deduction of cash discount - Held that: - in appellant’s own case M/s Kisan Irrigation Ltd. Versus Commissioner of Central Excise, Indore [2016 (1) TMI 696 - CESTAT NEW DELHI], the Tribunal after relying on the decision of the Apex Court in M/s Purolator India Ltd [2015 (8) TMI 1014 - SUPREME COURT] held that such cash discount is eligible for deduction to arrive at dutiable transaction value.
It is very clear that the Hon’ble Supreme Court was also dealing with a case of cash discount which was denied for deduction by the Revenue on the ground that the same was not actually passed on to the customers. In the present case also, the denial of discount for abatement from transaction value is on that ground only.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1108 - CESTAT NEW DELHI
Maintainability of appeal - authorization as per section 35B of the CEA 1944 - Clandestine removal - ingots - it was alleged that the ingots were received in the factory of the respondent and they cleared the same without recording in their statutory records - Whether the appeal is maintainable under section 35(b)(2) of the Central Excise Act 1944 or not? - Held that: - from the records of the case it is not coming out when the committee was found and was constituted. Moreover, both the Commissioners have signed on the Review order without date and even in one case without name. The said records does not show that whether the officers applied their mind to the issue and recorded any opinion as per the requirement of section 35(b) of the Central Excise Act. Why the order of Commissioner (A) was not legal or proper and warranted to be challenged by the Commissioner (A) - reliance placed in the case of COMMISSIONER OF CENTRAL EXCISE, DELHI-I Versus KUNDALIA INDUSTRIES [2012 (8) TMI 789 - DELHI HIGH COURT], where it was held that No opinion is formed by the Committee of Commissioners about the illegality of the order as required under Section 35B of the Central Excise Act. There was no authorization by the Committee of Commissioners to file appeal on its behalf - appeal dismissed being non-maintainable.
Whether during the relevant period, the Additional Director General of DGCEI was having the jurisdiction to issue SCN? - Held that: - the SCN has been issued to the respondent on 08.05.2001. Whereas the N/N. 38/2001-CE(NT) dated 26.06.2001 was effective from 01.07.2001. Admittedly, the SCN has been issued prior to the effective date of N/N. 38/2001-CE(NT) - at the time of issuance of the show cause notice, the Additional Director General, Shri R.K. Sharma of DGCEI was not having any jurisdiction to issue the show cause notice - decided in favor of respondent-assessee.
Whether the adjudicating authority was an appropriate officer to adjudicate the matter or not? - Held that: - In terms of the office memo dated 12.02.1958, 23.03.1958 and 28.05.1958 it has been stipulated that for Gazetted appointments, there should be a gazette notification. As no such notification has been placed on record for promotion and appointment of Shri Rajiv Aggarwal as Joint Commissioner, therefore, the adjudication order passed by him as Joint Commissioner is not sustainable in the eyes of law - decided in favor of respondent-assessee.
Whether the retracted statement of Shri Purushottam Kumar Gupta is admissible evidence or not? - Held that: - the retraction made by the respondent is available on record. Therefore, the retraction made by the respondent is required to be considered and no credence of retraction was given. Therefore, the said retraction is admissible. Consequently, the statements given by Shri Purushottam Kumar Gupta on 10.10.2000 and 08.03.2001 are not admissible as an evidence - decided in favor of respondent-assessee.
Whether the loose slips recovered from Dharamkanta can be relied upon to allege clandestine removal of goods or not? - Held that: - the katcha slips has not been identified by the panch witness, therefore, the statements of Shri Purushottam Das Gupta and these katcha slips cannot be the basis to allege clandestine clearance of the goods. Moreover, Shri Nepal Singh also denied that he has written these documents during the cross examination. No other evidence has been produced by the Revenue on record to allege clandestine removal of the goods and in the absence of any concrete evidence on record, the charge of clandestine removal of goods is not sustainable against the respondent - decided in favor of respondent assessee.
Whether penalty on Shri Purushottam Kumar Gupta can be imposed or not? - Held that: - As the charge of clandestine removal is not sustainable against the respondents, therefore, no penalty can be imposed on the respondents.
Appeal dismissed - decided against Revenue.
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2017 (10) TMI 1107 - CESTAT NEW DELHI
SSI Exemption - use of brand names - case of appellant is that the brand names were owned by the wife of Shri Mahesh Chand Goyal, Karta of the family and Shri Sundeep Kumar Goyal. This was a family settlement - Held that: - From the ratio laid down by the Hon’ble Supreme Court in the case of CCE vs Minimax Industries, [2011 (1) TMI 782 - DELHI HIGH COURT], it is evident that the brand name can be utilized by the family members.
However, regarding the turnover of the two units, which were engaged in the manufacture, it is not clear from the record whether it was clubbed or not. For this limited purpose i.e. clubbing of the turnover of the two units, the matter remanded to the original authority to decide the same de novo.
Appeal allowed by way of remand.
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2017 (10) TMI 1106 - CESTAT CHENNAI
Interest - penalty - Valuation - Annual capacity based production - Compounded Levy Scheme - Held that: - The Hon'ble Apex Court in the case of Shree Bhagwati Rolling Mills [2015 (11) TMI 1172 - SUPREME COURT] has held that the levy of interest and penalty are invalid, quashing the provisions of section 96ZO, 96ZP and 96ZQ - the demand of interest and penalties imposed are unsustainable - duty demand upheld - appeal allowed in part.
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2017 (10) TMI 1105 - CESTAT CHENNAI
Transfer of input service credit - utilisation of credit for payment of excise duty - extended period of limitation - Held that: - It is seen that the proceedings has been initiated against the appellant on the basis of the audit conducted by the department and an objection raised by them, based upon the entries made in their statutory accounts. As such, it can be safely concluded that the appellant had reflected all the facts in their accounts - appellant had filed the returns disclosing the factual position to the Revenue. This reflects upon the bonafide of the appellant and even if there is some different view of the Revenue, the appellant cannot be saddled with any malafide, so as to justifiably invoke the longer period - extended period cannot be invoked - demand set aside - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1104 - CESTAT ALLAHABAD
Classification of goods - ‘CRAX Corn Rings’ - ‘Natkhat Wheat Puffs’ - classified under CTH 19059030 of the Central Excise Tariff Act, 1985 as ‘extruded or expanded products, savoury or salted’, attracting Nil rate of duty or under CTH 19041090, attracting duty @ 16% adv? - Held that: - relying in the decision in the case of FRITO-LAY INDIA Versus COMMISSIONER OF C. EX., PUNE [2006 (11) TMI 28 - CESTAT,MUMBAI], where it was held that Meal blend have cooked by heating, hence classification under Heading 19.04 ibid further not sustainable and Classifiable under Sub- heading 2108.99 ibid - appeal dismissed - decided against Revenue.
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2017 (10) TMI 1103 - CESTAT ALLAHABAD
CENVAT credit - duty paying documents - whether under the admitted fact that after making purchases of inputs, the respondent-assessee will be benefitted to full credit after issue of credit notes/debit notes, resulting in reduction of the transaction value only? - Held that: - there is no such provision in the scheme of the Central Excise Act and the Rules thereunder that on subsequent alteration of transaction value, there results an automatic adjustment in the duty payable - Upon being asked if there is any provision in the Act and Rules, the ld. A. R. was unable to point out any such provision in the Act and Rules.
This is a frivolous appeal filed by Revenue - appeal dismissed - decided against Revenue.
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2017 (10) TMI 1052 - BOMBAY HIGH COURT
Maintainability of appeal - substantial question of law - reversal of credit alongwith interest - Held that: - A finding of fact recorded by the Appellate Tribunal is that not only that there was reversal of credit, but the respondent paid interest of ₹ 4,71,189/. On this ground, the order of the Commissioner imposing penalty has been set aside. Today, the learned counsel for the appellant is not in a position to substantiate the challenge by the appellant to the factual finding - no substantial question of law arises - appeal dismissed being not maintainable.
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2017 (10) TMI 1051 - ALLAHABAD HIGH COURT
CENVAT credit - reasonale care taken before availing credit - Held that: - This finding of fact which was recorded in Commissioner of Central Excise, Customs and Service Tax Vs. Juhi Alloys [2014 (1) TMI 1475 - ALLAHABAD HIGH COURT] by this Court has been agreed by both the counsels that it will apply equally to the case of respondent also - it was held in that case that The goods were demonstrated to have travelled to the premises of the assessee under the cover of Form 31 issued by the Trade Tax Department, and the ledger account as well as the statutory records establish the receipt of the goods. In such a situation, it would be impractical to require the assessee to go behind the records maintained by the first stage dealer - appeal dismissed.
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2017 (10) TMI 1050 - CESTAT BANGALORE
CENVAT credit - outward transportation service - denial on the ground that as the appellant is delivering goods at specified rates and paying duty under Section 4A, therefore on outward transportation they are not entitled to avail CENVAT credit - Held that: - the issue has already been settled by the Hon’ble Karnataka High Court in the case of Madras Cements Ltd. [2015 (7) TMI 1001 - KARNATAKA HIGH COURT] wherein it has been held that although goods have been sold at specified rates but if goods are delivered as per the agreement at the place of buyer, the assessee is entitled to avail CENVAT credit on outward transportation service - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1049 - CESTAT MUMBAI
Clandestine removal of raw material and finished goods - - Held that: - When goods were noticed by investigation as cleared clandestinely, respondent failed to explain whether clearance thereof was made paying duty. There was difference in quantity as shown on record and as physically available during inventory. Using same invoices more than once, clearances were made and that was corroborated from the seized invoice book (sr. no. 34). The materials so seized brought out oblique motive of appellant in absence of rebuttal - Shri Khimji Kataria deposed that there was no sale but invoices were prepared for adjustment. This proved existence of parallel invoices which were prepared for clandestine clearances.
Hon’ble Supreme Court in the case of Union of India Versus Rajasthan Spinning & Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA] has held that duty evasion should meet penalty and such evasion should also face duty demand invoking extended period of five years.
Appeal allowed - decided in favor of Revenue.
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2017 (10) TMI 1047 - CESTAT BANGALORE
Condonation of delay of 135 days in filing the appeal - case of appellant is that the appeal could not be filed before the Tribunal in time because the impugned order was not traceable - Held that: - the Commissioner (A) by relying upon the decision of the Supreme Court in the case of Singh Enterprises vs. CCE [2007 (12) TMI 11 - SUPREME COURT OF INDIA], has held that the Commissioner (A) has no powers to condone the delay beyond 30 days - delay cannot be condoned - appeal dismissed - decided against appellant.
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2017 (10) TMI 1046 - CESTAT CHENNAI
Valuation - CTD/TMT bars and MS round - job-work - non-inclusion of actual cost of raw materials - main point that has been raised by the department is that the Commissioner (Appeals) has erred in holding that the show cause notice dated 3.1.2007 issued is barred by limitation for the reason that the earlier show cause notice was issued for the very same period - Held that: - though the period covered is the same, the issue raised in both the show cause notices are different. The Commissioner (Appeals) ought to have considered and given a finding on the merits of the case instead of being carried away by the fact that the second show cause notice have been issued for the very same period - Further, merely because the show cause notice is for the very same period, it cannot be said that the second show cause notice is barred by limitation.
It must be shown that the facts alleged in subsequent show cause notice was well within the knowledge of department - there is sufficient ground for remanding the matter for reconsideration by the Commissioner (Appeals) - appeal allowed by way of remand.
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2017 (10) TMI 1045 - CESTAT NEW DELHI
Extended period of limitation - SSI Exemption - evasion of duty - suppression of value - during the period 2005-06, the appellant availed SSI exemption and their sales turn over crossed the SSI exemption limit. It is a fact on record that in 2005, a search was conducted at the factory premises of the appellant and all relevant records have been scrutinized and it was found that appellant has crossed SSI exemption limit - Held that: - extended period of limitation is not invokable as it was in the knowledge of the Revenue on 10.6.06 that the appellant has crossed the SSI exemption limit but no action was taken within time against the appellant and no further inquiry was conducted after 10.6.2006 to issue the show cause notice - extended period of limitation is not invokable and the impugned demands against the appellants are not sustainable - penalties also set aside.
In similar set of facts in the case of Amway India Enterprises Pvt. Ltd. vs CCE, New Delhi [2017 (3) TMI 616 - CESTAT NEW DELHI], Tribunal has held that since the modus operandi adopted by the appellant for selling its products were known to the Department and based on the information/documents furnished by the appellant in 2005, the show cause proceedings were initiated by the Department on 12.03.2009, seeking confirmation of service tax demand under 'Franchise Service' for the period October' 2003 to March' 2007, we are of the considered view that the proceedings are barred by limitation of time.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1044 - CESTAT NEW DELHI
CENVAT credit - fake invoices - allegation has been made out against the appellants on the basis of the statements of the registered/ dealers of the supplier of the goods wherein it has been stated that the registered dealers were issuing the invoices for availment of inadmissible cenvat credit without accompanying the goods - Held that: - I gone through the statement of the registered dealers / supplier. In their statements, they never stated that they have not supplied goods to the appellant. The registered of the supplier have been given a general statements that they are indulged in the activity of issuing invoices without accompanying the goods - on the basis of the statements of the registered dealers who has given a general statement, it cannot be alleged that the appellants have not received the goods.
Owner of vehicle - Held that: - There is no specific instance shown by the scrap dealer that the particular vehicle has been scrapped on the day. Further, the scrap dealer in his statement, has stated that he has seen the receipt of the vehicle and the statement of Shri. Ramesh Chander Gupta (the seller of the vehicle) and signed the statement given by Shri. Ramesh Chander Gupta and the receipt of the vehicle for sale on 14.10.2011, on going through the receipt, I find that there is not signature of Shri Kuldeep Singh. Therefore the statement given by Shri Kuldeep Singh is not admissible but is doubtful to alleged that same has been taken by the Department to implicate the appellants in this case.
The statements of seller of the vehicle and the buyer of vehicle cannot be the piece of evidence to implicate the appellant in this case to deny cenvat credit - the cenvat credit cannot be denied to the appellants in the absence of any concrete evidence against the appellants.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1043 - CESTAT ALLAHABAD
CENVAT credit - duty paying documents - Rule 9(1) of CCR, 2004 - Held that: - Cenvat credit is entitled to be availed by the appellant for the invoices/debit notes issued in the name of the Head Office by the service provider.
The service availed prior to 10/09/2004 and the invoice/debit note issued after 10/09/2004 - Held that: - the issue has been decided in the case of IDEA MOBILE COMMUNICATIONS LTD. Versus COMMISSIONER OF C. EX., MEERUT [2011 (11) TMI 423 - CESTAT, NEW DELHI], where it was held that The Commissioner’s finding that during the period prior to 10-9-2004, in terms of Service Tax Credit Rules, 2002, the Cenvat credit was available only in respect of those input services which were of the same category as that of output service is factually incorrect as these rules had been amended w.e.f. 14-5-2003 by N/N. 5/2003-S.T. so as to permit Cenvat credit even in respect of those input services which were not falling in the same category as that of output service.
CENVAT credit - it was alleged that invoices had been issued prior to 10-9-2004 and in terms of the provisions of Rule 3(1) of Cenvat Credit Rules, 2004, the Cenvat credit in respect of such invoices cannot be allowed - Rule 11(1) of CCR, 2004 - Held that: - there was not question of the appellant having earned any service tax credit during the period prior to 10-9-2004 - the appellant is entitled to avail Cenvat credit for the services availed prior to 10/09/2004.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1042 - CESTAT ALLAHABAD
CENVAT credit - manufacture of exempted and dutiable goods - non-maintenance of separate set of books - Rule 6(3) of the CCR, 2004 - Held that: - the appellant is availing proportionate credit on input/input services used in manufacturing of dutiable final goods. In that circumstance, when the appellant is availing proportionate credit on input/input services used in the manufacture of dutiable goods, the question of reversal of Cenvat credit does not arise - credit remains allowed.
Penalty - CENVAT credit - malafide intent - Held that: - appellant has paid demand along with interest and since the sister unit was otherwise entitled to avail Cenvat credit on the said invoice. In that circumstance, the intent of the appellant to avail Cenvat credit with mala-fide is missing - penalty not imposed.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1041 - CESTAT MUMBAI
Valuation - pan masala or gutka - duty based on the capacity of packing machines installed in their factory - applicability of Rule 8 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - Held that: - similar issue decided in the case of Commissioner of Central Excise Kanpur Versus M/s. Trimurty Fragrances (P) Ltd. [2015 (11) TMI 320 - ALLAHABAD HIGH COURT], where it was held that Even if the machine manufactures in a particular month pan masala or pan masala with tobacoo pouches of 50.0 and ₹ 1.00, its deemed production would still be 37,44,000 pouches on which duty would be leviable. The proviso to Rule 8 would not be applicable nor can there be a supposition that there would be deemed to be an addition in the number of operating packing machines for the month in question on the strength that a new retail sale price has come into existence on an existing manufacturing machine.
The appellant is not liable to pay duty, as demanded in the impugned orders from the appellants in terms of Rule 8 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, which is not attracted to the facts of the case.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1040 - CESTAT ALLAHABAD
CENVAT credit - penalty - wrongful availment of CENVAT credit - non-payment of service tax on immovable property - scope of SCN - Held that: - Only demand raised in the show cause notice on account of denial of Cenvat credit of ₹ 4,55,181/-. In fact, appellant has availed Cenvat credit of ₹ 4,20,283/-, therefore, the show cause notice is defective asking the appellant to reverse the Cenvat credit to the tune of ₹ 4,55,181/- - there is no demand of service tax has been raised in the show cause notice, therefore, service tax cannot be demanded from the appellant. As there is no demand of service tax, therefore, no penalty is imposable on the appellant.
For the amount of ₹ 4,20,283/- the sole reason for denial of Cenvat credit is that the appellant is not entitled to avail Cenvat credit on the photocopy of the invoices issued by the service provider - As the original invoices are in the record of the head office. In that circumstances, the Cenvat credit cannot be denied to the appellant as it is not disputed that the appellant has not received the services and not paid the service tax - credit allowed.
Appeal allowed.
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