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Central Excise - Case Laws
Showing 161 to 180 of 338 Records
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2017 (7) TMI 523 - ORISSA HIGH COURT
Clandestine manufacture and removal - annual capacity of production - on 10.9.2011 a search was conducted by the Officers of Central Preventive Unit, Bhubaneswar-II acting on some alleged information that the petitioner was also manufacturing and clearing “Gutkha” of MRP ₹ 5/- per pouch under the brand name “Safal”, which was not declared by petitioner - natural justice - Held that: - the main edifice of the case of the department rests on the statements of Mr. Tapan Chandra Dey and Soumendra Kumar Sahoo, who state that they got the “Safal” brand “Gutkha” of MRP ₹ 5/- from the petitioner. Since the petitioner has taken a stand that during course of investigation neither any pouch of MRP ₹ 5/- of “Safal” brand “Gutkha” was seized nor any machinery with capacity to manufacture of “Safal” brand “Gutkha” pouch of MRP ₹ 5/- was seized and that there was no seizure of any document/diary/note book/computer printout showing manufacture and clearance of “Safal” brand “Gutkha” of MRP of ₹ 5/- from the petitioner Unit, in the fitness of things the authorities should have allowed cross-examination of the above two persons to test the veracity of their statements. By not doing so, in our considered view there has been violation of principles of natural justice.
While filing the interim show cause under Annexure-25, the petitioner has wanted to cross-examine Mr. Tapan Chandra Dey and Soumendra Kumar Sahoo before filing their final reply. Since the same was not acceded to, in our considered view, the entire decision making process has been vitiated. This is because in case during cross-examination the petitioner is able to demolish the statements of Mr. Tapan Chandra Dey and Soumendra Kumar Sahoo then the entire foundation of the case of the department would collapse.
If the testimony of witnesses is discredited then there would no material for the department on the basis of which they can justify their action and accordingly allowed the appeal. Taking a cue from that, this Court has no hesitation in quashing the impugned order under Annexure-1, which, this Court hereby does. Further, this Court remands the matter back to the opposite party directing him to give opportunity to the petitioner to cross-examine Mr. Tapan Chandra Dey and Soumendra Kumar Sahoo vis-à-vis their statements and conclude the entire proceeding within three months in accordance with law.
Writ application allowed.
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2017 (7) TMI 522 - CESTAT CHENNAI
Benefit of N/N. 6/2002 - Integrated Mobile Missile Launcher (IMML) - P-II Missile Launcher - The allegation of the department is that excise duty has not been paid on the chassis and on the equipment - Held that: - The Hon’ble Apex Court in that judgment held that where the raw material is not liable to excise duty or where such duty is nil , no excise duty is as a matter of fact is paid upon it and that benefit of exemption notification will not apply to such goods - the appellants cannot then lay claim to duty exemption under the said notification No. 6/2002 for the impugned products namely IIML and P-II Missile Launcher. The differential duty liability on the clearances of these items made without discharge of proper duty liability thereon will then sustain.
Classification of launching mechanism - assessees themselves have classified the item under 8425 at the outset. They have subsequently sought re-classification of the items under 8705 even in the written submissions submitted during the course of hearing. The appellant seems to be once again claiming CSH 8425. It is thus seen that the appellant themselves are changing their stance on the classification - Held that: - the said vehicles manufactured by BEML and other components manufactured by LTM (BU) have been manufactured to the design supplied by the buyer of the product and all the said items are fitted together to form an integrated mechanical unit which is clearly covered under para-2 of clause (b) of notes under 8425.
Valuation - money value of free receipt materials of chassis/vehicles - design and drawing of engineering charges - includibility - Held that: - Held that: - The law is very clear that when design and drawings are intrinsically tied to the emergence of the final product and without which the intended goods cannot be conceived or manufactured, the intrinsic value of such design and drawing charges will necessarily be required to be added for the purpose of determining assessable value of the goods that have emerged neutralizing the same - value of chassis/vehicles and design and drawing charges, since amounting to additional consideration, there value will have to be included in the assessable value of the products cleared as a one single unit.
Extended period of limitation - Held that: - Appellants are definitely not a neophyte in the field of central excise law and procedure. The fact that they are manufacturing such high value items for launch of missile/defense sector etc., will necessarily cast an additional responsibility on the appellants to ensure their compliance to all procedural requirements including correct discharge of central excise duty liability - The plea of the assessee that the goods were supplied for defence purposes does not absolve the unit from the charges of suppression - extended period rightly invoked.
Appeal dismissed - decided against appellant.
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2017 (7) TMI 521 - CESTAT CHENNAI
SSI exemption - dummy units - it was alleged that the unit had floated fictitious non-existent companies so as to manipulate the purchase production and sales details and kept their clearances well within the exemption limit of ₹ 1 crore - Held that: - appellant concedes that the details had not been produced by the appellant in such proceedings, and in case the fact of these export clearances are considered, there would be a substantial change in the aggregate value of clearances and on this count, matter may be remanded for reconsideration on the basis of Form-H certificates evidencing export - matter on remand.
CENVAT credit - credit on the date of crossing the exemption limit - Held that: - the adjudicating authority will consider the claim of the appellant on the matter of eligibility of cenvat credit.
The penalty imposed under Section 11AC will be recalculated based on the eventual duty liability that will be arrived at by the authority in such adjudication.
Appeal allowed by way of remand.
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2017 (7) TMI 520 - CESTAT KOLKATA
Manufacture - structures emerging during the course of erection of such chimney - whether fabrications carried out by the appellant at site of M/s.NTPC in connection with execution of the work order for erection of Chimney will be liable to Central Excise duty? - Held that: - The work order talks about erection of Chimney with the dimensions and designs as approved by M/s.NTPC. The design and drawing are all made specifically for such Chimney. There is no sale of such parts designed for fabrication. The marketability has to be established at least by existence of one customer or possibility of such market for the product. The execution of work order which is for the completely erect custom made Chimney by itself does not satisfy the question of marketability. Admittedly, the dimensions and designs for the said Chimney flue is specifically to the particular work and the impugned order did not justify the grounds of marketability before arriving at a finding - Tribunal in the case of J.K.Synthetics Ltd. v. Commissioner of Central Excise, Jaipur [1999 (5) TMI 366 - CEGAT, NEW DELHI] dealt with a similar item and held that the evidence of marketability is lacking and as such duty liability cannot be fastened on such goods - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 519 - CESTAT CHENNAI
Confiscation - redemption fine - penalty - the proper officer of Customs did not clear the goods on the ground that the goods were not imported directly from the manufacturer, viz. M/s. Liyang Chemical Factory, China, as required in the Registration issued by Central Insecticide Board, but through their authorized distributor - Held that: - the imported goods were actually manufactured by M/s. Jiangsu Tianrong Co. Ltd., China and as such the prime condition of the notification and registration is satisfied. I also find that such registration is required so as to ensure that the good quality insecticides only are imported. When the goods are admittedly manufactured by the empanelled manufacturer, the fact that the same have come through the distributor will not make much difference, in as much as the Insecticide Board itself could have allowed such import through the distributor. The commercial invoice, Bill of lading as also the Bill of entry clearly indicate that the goods have been manufactured and exported by M/s. Liyang Chemical Factory only and it may be for the business reasons that the documentation have been routed through the distributor. It can be safely concluded that there is no contravention of the registration certificate and even if it is there, it is too technical to be taken note of so as to penalize the assessee.
There is no violation of the registration certificate and it is only a hyper technical objection taken by the Revenue, I find no reasons to sustain the impugned order imposing redemption fine and penalty on the assessee - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 518 - CESTAT MUMBAI
Rectification of mistake - applicant pointed out that an error has crept in the said order insofar as the applicant's contention that it was of a revenue neutral situation was not appreciated, insofar as the goods cleared on payment of duty within the first clearances of 3500 MT were also eligible to the benefit of the said notification - Held that: - From the order-in-original, it can be seen that the goods cleared on payment of duty within the first clearance of 3500 were otherwise also eligible for Notification 3/2001 dated 1.3.2001. This being the case, it would result in a revenue neutral situation and thus the distinction made in para 6 of the order dated 23.2.2017 does not survive. Consequently necessary rectification made - ROM allowed.
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2017 (7) TMI 517 - CESTAT CHENNAI
CENVAT credit - input - fuel - Alleging that as per the definition of input under Rule 2(f) of Cenvat Credit Rules 2001, fuel is an input only when used in generation of electricity and steam, used for manufacture of final products within the factory of production, and that the credit taken on furnace oil used in the generation of steam not used within the factory but cleared to M/s. Futura Polymers is incorrect - Held that: - reliance placed in the case of COMMISSIONER OF C. EX., CHENNAI Versus INDIAN ORGANIC CHEMICALS LTD. [2014 (1) TMI 1570 - MADRAS HIGH COURT], where it was held that the assessee has used furnace oil in the generation of steam and the said steam was transferred altogether to a different unit situated outside the factory premises. Therefore, the case of the assessee would come under Rule 57B(1)(iv) - demand upheld - appeal allowed - decided in favor of Revenue.
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2017 (7) TMI 516 - CESTAT ALLAHABAD
Classification of goods - Edible preparation - whether classifiable under Chapter Heading No.2108.00 or under Chapter Sub Heading No.1901.92 of Central Excise Tariff Act, 1985? - Held that: - under Chapter Heading No. 19.01 the title of the heading includes food preparations containing Malt Extract and containing Cocoa less than 40% by weight. The said goods are divided through single dash in two categories, one category is ‘put up in unit containers’ and the other category is ‘others’. 1901.92 is sub set through double dash of ‘others’. It is a fact on record that the goods manufactured by the respondent are put up in unit containers. Therefore, obviously they will not fall in the category ‘others’ which includes 1901.92 - appeal dismissed - decided against Revenue.
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2017 (7) TMI 515 - CESTAT ALLAHABAD
Manufacture of imitation jewellery - It was alleged that appellant failed to get registered with Central Excise Department and follow Central Excise procedures in spite of having been engaged in the manufacture of dutiable goods viz. Imitation Jewellery - effects of amendment - validity of SCN - Held that: - the amendment that was brought in as on 13.05.2005 by insertion of words of base metal, whether or not plated with precious metal was not applicable for the clearance of chains of base metal on which there was no plating with precious metal for the period prior to 13.05.2005 therefore the demand for the period prior to 13.05.2005 is not sustainable - for the period from 13.05.2005 to 10.10.2005 neither the said Show Cause Notice nor the findings by Original Authority could establish that the chains of base metal on which there was no plating with precious metal and for which duty was demanded and confirmed were capable of being any small object of personal adornment. Therefore, the said Show Cause Notice even for the period 13.05.2005 to 10.10.2005 is not sustainable - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 490 - CESTAT MUMBAI
CENVAT credit - catch covers, a packing material - denial for the reason that the catch covers are not the essential primary or secondary packing material used for the manufacture and marketability in the normal course of trading - Held that: - It is upto the trade that which type of packing has to be used in the manufacture and sale of final products. Therefore, the Revenue should not have any say or decided, which packing material is essential and otherwise to decide the eligibility of the CENVAT Credit. Once it is not disputed that the packing material is used in the manufacture of final products and sale thereof, such packing material is an admissible input and the credit is allowable.
CENVAT credit - for the period November 2001 to January 2008, the Cenvat Credit in respect of catch covers was proposed to be denied on the ground that the value of the cost of the catch covers was not included in the value of the physician samples supplied free of cost - Held that: - the condition of inclusion of cost of packing material in the final product in order to allow the credit is not required - credit allowed.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 489 - CESTAT CHENNAI
MODVAT credit - removal of Capital goods as such - demand of an amount equal to the Modvat credit taken on the capital goods by invoking Rule 3 (5) of the CCR, 2004 on the ground that the capital goods were removed as such - Held that: - when capital goods are removed after use it cannot be said that the goods are removed as such for the purpose of reversing the entire credit taken at the time of receiving the capital goods as prescribed in Rule 3 (5) of CCR 2004 - appellants have removed the capital goods after more than 10 years and that also after being used in their factory for a long time. The cenvat credit was taken in May 1995 to August 1995. The factory was later closed down and the capital goods were removed on 26.12.2006, after payment of excise duty on the transaction value - the demand is unsustainable - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 488 - CESTAT CHENNAI
Valuation of intermediate products - captive consumption - administrative expense - advertisement expense - interest expense - includibility - Held that: - the respondent has not been put to notice regarding this aspect and the issue at that time was only with regard to non-inclusion of administrative expense, advertisement expense, interest expense in the cost of production. The Commissioner (Appeals) has also stated that the rate arrived by the department on the basis of Trial Balance of the unit is incorrect, for the reason that what is to be taken into account for finding out the cost of production on the intermediate goods is only the related expenditure incurred for the said intermediate products. If the entire expenditure shown in the Trial Balance is taken for arriving at the overhead rate, then this will definitely reflect the overhead for the manufacture of the final product viz., Tyre in this case and will not represent the overhead rate for the intermediate goods - appeal dismissed - decided against appellant.
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2017 (7) TMI 487 - CESTAT ALLAHABAD
Classification of goods - Lead Glass Tubings Flange Tubings & Exhaust Tubings - The contention of the respondent was the same were classifiable under CSH 7008.90 of Schedule to CETA, whereas Revenue claimed that the said products are un-worked and classifiable under Chapter Sub-heading No. 7001.90 - Held that: - the respondent had explained that the Lead Glass Tubings for use in Electrical Lamps having to be further processed/by way of annealing, diameter sorting, precise cutting to the specified length and their ends have to be glazed by fire polishing and therefore the tube emerging from such process shall fall under classification under Sub-heading No. 7008.90 - appeal dismissed - decided against Revenue.
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2017 (7) TMI 486 - CESTAT CHENNAI
Abatements on durable and returnable containers - Held that: - the Commissioner (Appeals) has given a detailed discussion as to how the original authority has granted abatement. Ld. Counsel for the respondent has explained that for the metal containers which were returned, the refund paid by them was ₹ 5.50 and ₹ 5, whereas the price of such containers was ₹ 8.03 and ₹ 6.88. The department contends that the respondents are eligible only on the amount that is refunded and not on the price declared in the price list. This grievance of the department has been answered by the adjudicating authority - there is no ground to interfere with the quantification of abatement on durable and metal containers made by the authorities below - appeal dismissed - decided against Revenue.
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2017 (7) TMI 485 - CESTAT CHENNAI
Valuation - includibility - conversion cost upto the stage of spinning and cone-winding - Held that: - all costs only upto the spindle stage when excisable product comes into existence should be included in the assessable value and the costs of processes after that stage like winding, warping, weaving, sizing etc., should not be included - there is no merit in the grounds raised by the department. The impugned order calls for no interference - appeal dismissed - decided against Revenue.
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2017 (7) TMI 484 - CESTAT CHENNAI
Valuation - service charges - includibility - whether the service charges collected for storage and dispatch in the depot of the assessee is includable in the assessable value? - Held that: - separate correspondence exists for providing service of storage and delivery of the goods from the depot according to the directions of AEEL; so also separate amount was paid @ 5% on such service charges by raising debit notes. That these services were provided by the assessee apart from the manufacture and sale of goods at the factory gate and therefore is not includable in the assessable value - appeal dismissed - decided against Revenue.
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2017 (7) TMI 483 - CESTAT CHENNAI
SSI exemption - time limitation - Held that: - As the appellants have cleared the finished products by paying duty on the assessable value arrived after including the amortized cost of free items, it is evident that the appellants are guilty of suppression of facts. Therefore, SCN issued invoking the extended period of limitation in our view is proper - demand upheld - appeal dismissed - decided against appellant.
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2017 (7) TMI 482 - CESTAT CHENNAI
SSI exemption - use of Brand name of others - Held that: - the brand name Extus is used by several persons - The judgment in the case of Bhalla Enterprises [2004 (9) TMI 109 - SUPREME COURT OF INDIA] squarely covers the issue when the brand name is used by several persons. By respectfully following the same ratio, the denial of benefit of SSI exemption on this ground is not legal and proper.
With regard to brand names Colter, Bezec, Fecit C etc., we find that the department has not been able to establish that these brand names does not belong to the appellants. In the statement of Shri R. Subramaniam, Director of M/s. Care-Med Pharmaceuticals, he states that these brand names belonged to appellant and that they purchased it. There is no evidence to establish such purchase and that the brand name belongs to M/s. Care-Med Pharmaceuticals. Thus, the department has not been able to establish the allegation that the brand name belongs to other person. Therefore, denial of benefit of SSI exemption is unjustified and the demand raised is unsustainable.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 481 - CESTAT CHENNAI
Waste - The appellant had cleared iron and steel, stainless steel item in domestic tariff area without payment of duty as Wastes & Scrap - Department was of the view that the appellant is liable to pay duty on such waste and scrap as these are leviable to duty under Chapter Note 8 (a) of Section XV of Customs as well as CETA - Held that: - the appellant has cleared only components of machinery due to wear and tear of the machineries. The iron metal scrap cleared by the appellants are not waste arising in the course of manufacture and therefore are not exigible to duty - the issue in dispute stands covered by the judgment in the case of Grasim Industries Ltd. [2011 (10) TMI 2 - SUPREME COURT OF INDIA], where it was held that the metal scrap and waste arising out of the repair and maintenance work of the machinery used in manufacturing of cement, by no stretch of imagination, can be treated as a subsidiary product to the cement which is the main product - demand set aside - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 480 - CESTAT AHMEDABAD
CENVAT credit - capital goods - SS Sheets, Air Distributer S. S. Cold rolled coils etc., used in repairing of spray dryer machines - denial on the ground that these items do not fall under the definition of capital goods - Held that: - This issue has been considered by this Tribunal in Kissan Sahakari Chini Mills Ltd's case [2013 (7) TMI 2 - CESTAT NEW DELHI], where it was held that the activity of repair and maintenance of plant and machinery is an activity which has direct nexus with manufacture of final products and the goods used in this activity would be eligible for Cenvat credit - appeal allowed - decided in favor of assessee.
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