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Central Excise - Case Laws
Showing 141 to 160 of 338 Records
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2017 (7) TMI 639 - CESTAT CHANDIGARH
Clandestine removal - demand on the basis of computer printouts recovered from CA/Accountant of M/s. IFL and M/s. IAPL - Held that: - no investigation was conducted at the end of the appellant and the transporters were also not investigated to reveal the truth whether the clandestinely removed goods from IFL/ IAPL were transported up to the place of appellants - no evidence has been put-forth by the Revenue that the packing material supplied by IFL/IAPL were used in the excess manufactured goods by the appellant - As the evidence of clandestine removal of packaging material from the premises of IFL/IAPL, up to the place of appellant are missing, therefore, charge of clandestine removal is not sustainable against the appellant - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 638 - CESTAT NEW DELHI
CENVAT credit - freight - place of removal - The department was of the view that such Cenvat Credit will not be allowable after the amendment of the definition of input services under Rule 2(l) of the CCR 2004 wherein after the amendment of the definition on 01.04.2008, the credit for the input services will be allowable only upto the place of removal - Held that: - The amended definition on input services w.e.f 01.04.2008 allows Cenvat Credit on input services only upto the place of removal - In the present case since the delivery is on FOR basis, the place of removal is to be considered as the customer’s premises. Consequently, the service tax paid on freight will be available if freight has been paid upto the customer’s premises.
Similar issue decided in the case of M/s Madras Cements Ltd Versus The Additional Commissioner of Central Excise, The Commissioner of Central Excise (Appeals-I) [2015 (7) TMI 1001 - KARNATAKA HIGH COURT], where it was held that Since we are of the opinion that the sale had concluded only after the delivery of the goods was made at the address of the buyer, in the facts of the present case assessee would be entitled to the benefit of CENVAT credit on Service Tax paid on outward transportation of goods by the assessee even after 01.04.2008. The appellant-assessee would thus be entitled to such benefit for the period 01.04.2008 to 31.07.2008.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 637 - CESTAT NEW DELHI
Quantum of penalty - case of Revenue is that since the reduced amount of penalty of 25% was not deposited within 30 days from the date of receipt of the adjudication order, the benefit of quantum of reduced penalty provided under Section 11AC ibid should not be available to the appellant and the appellant is required to pay the entire amount of penalty confirmed in the adjudication order - Held that: - there were various judicial pronouncements by this Tribunal as well as the Hon’ble High Courts, ruling that the deposit of the reduced amount of penalty of 25% should be given by the adjudicating authority in the order of adjudication - option for depositing the reduced quantum of penalty by the adjudicating authority has not been provided in the adjudication order.
The law is well settled that in absence of the option given by the adjudicating authority to pay reduced amount of penalty of 25%, the same can be extended by the Tribunal at appellate stage - since the adjudicating authority had not given the option to the appellant No.1 to deposit the entire duty alongwith interest and 25% of penalty in the order dated 17.12.2008 and the appellant had suo moto deposited such amount at the time of filing the appeal before the Commissioner (Appeals), the benefit of the reduced amount of penalty as per the judgment dated 25.11.2014 of Hon’ble Apex Court can be extended at the appellate state.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 636 - CESTAT NEW DELHI
CENVAT credit - input service distributor - it was alleged that the branch sales office (ISD) has not filed proper returns, showing the distribution of cenvat credit to Bhilai Steel Plant - Held that: - Non-filing of the return in the proper format is a procedural lapse, for which the substantive right to distribute the credit and subsequent availment thereof by the manufacturing unit cannot be denied.
GTA services - denial on the ground that GTA services were utilized by the appellants for transportation of goods beyond the place of removal - Held that: - the Hon’ble Karnataka High Court in the case of Stanzen Toyotetsu India (P) Ltd. [2011 (4) TMI 201 - KARNATAKA HIGH COURT] held that such services availed for workers to reach factory premises in time, has the direct bearing on the manufacturing activity - Since the period involved in this case is prior to the amendment of the definition of input service, the credit taken on rent-a-cab service should also be available to the appellant.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 635 - CESTAT HYDERABAD
Refund claim - time limitation - duty paid under protest - reverse charge - whether time limitation of 1 year is applicable to duty paid under protest? - Held that: - the first appellate authority was correct in coming to the conclusion that service tax liability arises on the respondents herein only, if the said amounts were paid post 18/04/2006 - reliance place on the judgment of the Hon’ble Bombay High Court in the case of Indian National Shipowners Assocaition [2009 (3) TMI 29 - BOMBAY HIGH COURT] is correct as this judgment of the Hon’ble High Court of Bombay has been upheld by the apex court and based upon such decision, Board has also issued circular No.276/8/2009-CX.8A dt. 26/09/2011 stating that service tax liability for the payments made to an overseas service provider will arise from 18/04/2006 only - refund allowed - appeal dismissed - decided against Revenue.
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2017 (7) TMI 596 - BOMBAY HIGH COURT
Maintainability of appeal - Section 35G - whether appeal maintainable before Supreme Court in view of the fact that The “Rate of Duty” and “Value of Goods” are the basic issues? - Held that: - It is clear from the provisions of section 35(G) itself that no appeal lies to the High Court from the Order passed by the Appellate Tribunal being the order relating among other things, to the determination of any question having a relation to the rate of duty of excise and/or to the value of goods for the purposes of amendment - the present appeal is disposed of as not maintainable.
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2017 (7) TMI 595 - MADRAS HIGH COURT
SSI exemption - use of brand name of others - whether the petitioners are entitled for the exemption from payment of duty on goods bearing the brand name of another person cleared from their factory in terms of the relevant Notifications? - Held that: - The said issue has been finally decided in the assessee's own case in Kali Aerated Water Works vs. Commissioner of C.Ex., Madurai, [2015 (6) TMI 226 - SUPREME COURT], wherein the appeal filed by the petitioner/assessee was allowed, and it was held that Trade name 'Kalimark Aerated Water Works' and trade mark mentioned in the said agreement would remain vested in all the parties including the appellant and the appellant was also allowed to use the same - petition allowed - decided in favor of petitioner.
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2017 (7) TMI 594 - CESTAT CHANDIGARH
Clandestine removal - demand - Held that: - the case has been booked against the appellant on the basis of computer printouts recovered from pen drive recovered from Shri M. Jaganbabu, Production Manager of the appellant. The printouts of the pen drive were taken in the presence of panchas. The said fact has not been disputed by the appellant at any stage. Moreover, no cross examination of panchas has been sought by the appellant - as the Revenue has been able to corroborate the statement Shri Narendra Gupta with documentary evidence, the Revenue has been able to prove the case of clandestine removal of goods beyond doubt - appeal dismissed - decided against appellant.
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2017 (7) TMI 593 - CESTAT HYDERABAD
Condonation of delay - Held that: - it would be unfair and unjust that Appellants suffer due to non hearing of their earlier ROA Application filed in 2007, for no fault of theirs. In any case, the earlier application had been dismissed on the ground of considerable delay in filing ROA application - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 592 - CESTAT AHMEDABAD
CENVAT credit - retrospective benefit under Section 69 of the Finance Act, 2010 - denial on the ground that the interest @ 24% on the amount credit calculated, as required to be reversed was not discharged by the assessee - Held that: - the assessee has filed an application declaring one input namely, printing ink as commonly used both dutiable and exempted final product involving CENVAT credit of ₹ 12,474/- and interest ₹ 10,006/-. But later they have furnished their information for other inputs also during the course of adjudication proceeding. Thus, it cannot be said that the adjudicating authority have traveled beyond the scope of the proceeding - the ld. Commissioner has arrived at the total amount of proportionate credit required to be reversed by the assessee, used both on dutiable and exempted product. The computation of quantum credit has been disputed by the assessee on the ground that while computing the amount, the inputs which were exclusively used in the exempted product cannot be construed as common inputs used both dutiable as well as exempted product. Hence, the amount if properly calculated would be reduced to around ₹ 4.00 lakhs - Revenue's appeal that the assessee should not be eligible to benefit of reversal of credit retrospectively, is without merit and not acceptable.
The interest to be calculated within 10 days from the date of communication of the order, therefore, there is no discrepancy in the impugned order on this count. However, for re-determination of the quantum of proportionate credit, required to be reversed, the matter is remanded to the adjudicating Commissioner with the direction to decide the issue afresh - appeal allowed by way of remand.
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2017 (7) TMI 591 - CESTAT CHANDIGARH
Clandestine removal - the goods supplied under ARE-1 certificate were not exported - the parental unit did not mention ARE-1 No.19 and 20 - Held that: - As there are contrary views and difference of opinion between the Members, the points of difference of opinion are framed as: Whether in the facts and circumstances, the Member (judicial) is correct in holding that duty cannot be demanded and consequently penalty under Rule 25 Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944, is not imposable on the appellant? - matter referred to Larger Bench.
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2017 (7) TMI 560 - DELHI HIGH COURT
Jurisdiction of Court to entertain the appeal - pre-deposit - Held that: - by Ext.P4 letter of adjournment, the petitioner had indicated that he would not be in a position to be represented in the personal hearing on 22.02.2017, and an opportunity was sought for a personal hearing in the month of March 2017. Ext.P5 order passed by the respondent is without reference to the said request for adjournment made by the petitioner. At any rate, I am of the view that, no prejudice will be caused, if a fresh order of adjudication is passed after hearing the petitioner, considering that there is no period of limitation that will be breached, if a fresh order is passed after hearing the petitioner - appeal dismissed.
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2017 (7) TMI 559 - MADRAS HIGH COURT
CENVAT credit - input - M.S.Angles, M.S.Joint beams and TOR Steel - Whether the appellant is entitled to input credit in terms of Rule 2(k) of CCR 2004? - Held that: - decision in the case of M/s.Thiruarooran Sugars and another V. CESTAT and another [2017 (7) TMI 524 - MADRAS HIGH COURT], relied upon, where it was held that structurals, cement, as also, iron and steel, which are used to erect foundations, would come within the definition of 'input' as they form part of the capital goods, which, in turn, are used in the manufacture of final product. The manner in which the Revenue seeks to read the provisions of Explanation 2 is flawed for the reason that the said Explanation cannot restrict the scope and ambit of the main provision, i.e., Rule 2k(i). Explanation 2 cannot be read in a manner that it constricts, the scope and ambit of the main provision, i.e., Rule 2k(i). - appeal allowed - decided in favor of assessee.
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2017 (7) TMI 558 - MADRAS HIGH COURT
Valuation - the contention of the Appellants/Assessees, broadly, before the Adjudicating Authority was that, the sales made were not institutional sales and, thus, they were assessable Under Section 4A of Central Excise Act, 1944 - Held that: - what clearly emerges in so far as the issue pertaining to how assessable value has to be arrived at, in the instant case, is, admittedly, pending consideration of the Supreme Court in: Civil Appeal Diary No.31455 of 2015 - the decision, on merits, involving Appellants/Assessees before us, would be governed by the final decision of the Supreme Court in the aforementioned Civil Appeals.
Since, the Revenue in other cases have kept the SCN in abeyance, by keeping them in the call book [which is a method adopted by the Department], no coercive measures will be taken against the Appellants/Assessees, pending consideration of the of the aforementioned Civil Appeals by the Supreme Court.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 557 - CESTAT CHENNAI
Valuation - freight incurred for removal of goods from the factory gate to the consignment agent - includibility - Held that: - in the appellant's own case the Tribunal vide Final Order No./ 41763-41766/2015 dated 6.7.2015, the Tribunal held that There is no flow back of the freight aspect proved by Revenue showing that the same has come to the manufacturer in disguise. That not being the case, assessable value declared by the appellant remains untouched - demand set aside - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 556 - CESTAT KOLKATA
Valuation - transportation cost - differential pricing - commission paid to the commission agents - includibility - Revenue felt that premises are place of removal and transportation cost from the factory gate to place of removal should be included in the assessable value - Held that: - the period involved in the show cause notice is from 2002-2003, 2003-2004, 2004-2005, 2005-2006 and 2006-2007. Admittedly, the definition of place of removal in Section 4(3)(c) (iii) was amended w.e.f. 14.05.2003 to insert the depot/consignment agents in the statute. As per Section 4(3)(c)(iii), in case of sale from depot/place of consignment agents, time of removal shall be deemed to be the time at which the goods are cleared from the factory. In other words, in case of sale from depot/place of consignment agents, duty is payable on the price prevailing at the depot as on the date of removal from the factory - in terms of the explanation 2 to Rule 5, the cost of transportation from the factory to the place of removal where factory is not the place of removal (like in the present case where depot is place of removal after 14.05.2003) is to be included in the assessable value - the transportation/freight charges in show cause notice for the period 14.05.2003 to 31.03.2004, 2004-2005, 2005-2006 and 2006-2007 are liable to be included in the assessable value. However, for the period prior to 14.05.2003 when the definition of place of removal in Section 4 of Central Excise Act, 1944 did not include depot as place of removal, the place of removal will be factory gate and for this period, the transportation/freight charges would not be includible in the assessable value.
Valuation - differential pricing - Held that: - the Ld. Commissioner (Appeals) has not given any findings. The Ld. Commissioner (Appeals) is therefore required to examine the issue afresh after giving fair opportunity to the appellants to make their submissions - matter on remand.
Commission paid to commission agents - extended period of limitation - The appellants have argued that since the issue of depot sale was in the knowledge of the Department, the show cause notice is barred by limitation - Held that: - there is sufficient ingredient available on the part of the Respondent for deliberate withholding the information in suppression of facts with malafide intention to evade Central Excise Duty. Therefore, I find nother wrong in invocation of extended period of limitation in view of deliberate suppression & misstatement of facts with intention to evade Central Excise duty - finding of deliberate suppression is sustained - demand upheld.
Appeal allowed in part and part matter on remand.
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2017 (7) TMI 555 - CESTAT MUMBAI
Recovery of duty from the purchaser of property - purchase of property under auction - denial of refund on the ground that under provision of Section 11 (i) and as per Section 11 (e) of CEA, 1944 the Govt. dues of M/s. Bagwe Udyog Ltd is liable to paid by the person, owner ie.e. respondent - Held that: - In case of purchase of property alone under auction from Bank/ financial instituations, Section 11 is not applicable. Section 11 is applicable only in case where the buyer purchases the business in whole or in part from the earlier owner against whom central excise dues are pending - In the present case admittedly the respondent having their own existing business, only purchased the land from the bank in auction, accordingly they have not purchased the business either in whole or in part from the earlier owner, therefore the old dues of earlier owner is not recoverable from the present respondent therefore whatever amount paid by them is clearly refundable - appeal dismissed - decided against Revenue.
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2017 (7) TMI 554 - CESTAT MUMBAI
Sugar syrup - taxability - appellant argued that said sugar syrup is not chargeable to duty in view of CBEC Circular 226/60/96-CX dated 3-7-1996 In the said circular it has been clarified that sugar solutions having concentration of 65% by weight will be considered goods for purpose of charging excise duty - Held that: - in terms of Circular of the CBEC the said product would be marketable only if it contains citric acid, in terms of Circular of 3-7-1996 or if revenue produced any evidence of marketability in terms of Circular dated 12-3-2004 - It is apparent that no evidence of marketability has been produced by the Revenue and concentration of sugar in the sugar syrup is not more than 65%. Thus in view of the above circulars of Revenue cited above, it is not open to the Revenue to hold that sugar syrup is marketable and liable to duty. The circular issued by CBEC are binding on the Revenue - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 553 - CESTAT CHENNAI
SSI exemption - rural area - use of brand name - whether the assessee who is eligible for the rural area benefit under N/N. 8/2000-CE and N/N. 8/2003-CE can opt not to avail it, so as not to include the value of clearances of goods manufactured with the brand name of another, in the aggregate value of clearances to enable him to avail the SSI benefit of the notification? - Held that: - Sub-clause (a) of Para-3 categorically states that for the purpose of determining the aggregate value of clearances for home consumption the clearances bearing the brand name of another person which is ineligible for grant of exemption only cannot be included. Since the clearances bearing the brand name of Brittania Industries is eligible for exemption based on rural clearances and the value of such clearances also has to be included in the aggregate value of clearances. When so determined, the value of clearances exceeds ₹ 4 crores/Rs. 3 crores and therefore in our view the duty demand raised is right and proper - appeal dismissed - decided against appellant.
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2017 (7) TMI 524 - MADRAS HIGH COURT
CENVAT credit - capital goods - componenets/spares/other accessories - scope of Rule 2(a)(A)(i) of the 2004 Rules - whether the structurals, cement, iron and steel, which are used in constructing foundations, would fall within the ambit and scope of Rule 2(a)(A)(iii), read with Rule 2(a)(A)(i) of the 2004 Rules? - N/N. 16/09.
Held that: - structurals, cement, as also, iron and steel, which are used to erect foundations, would come within the definition of 'input' as they form part of the capital goods, which, in turn, are used in the manufacture of final product. The manner in which the Revenue seeks to read the provisions of Explanation 2 is flawed for the reason that the said Explanation cannot restrict the scope and ambit of the main provision, i.e., Rule 2k(i). Explanation 2 cannot be read in a manner that it constricts, the scope and ambit of the main provision, i.e., Rule 2k(i).
The Court was, thus, clearly dealing with an exemption notification, and after applying a strict rule of construction, came to the conclusion that unless it is demonstrated that iron and steel structures, (which were claimed as component parts, within the meaning of sub-rule (5) of Rule 57Q), were essential in the manufacture of the sugar manufacturing unit or in the composition of the sugar manufacturing unit, they would not come within the ambit of the aforementioned exemption notification.
MS structurals, which support the plant and machinery, which are, in turn, used in the manufacture of sugar and molasses are an integral part of such plant and machinery. The Assessee has clearly demonstrated that structurals as well as foundations, which are erected by using steel and cement are integral part of the capital goods (i.e., plant and machinery), as they hold in position the plant and machinery, which manufactures the final product. Therefore, in our opinion, whether the "user test" is applied, or the test that they are the integral part of the capital goods is applied, the Assessees, in these cases, should get the benefit of Cenvat Credit, as they fall within the scope and ambit of both Rule 2(a)(A) and 2k of the 2004 Rules.
Appeal allowed - decided in favor of assessee.
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