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Central Excise - Case Laws
Showing 241 to 260 of 338 Records
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2017 (7) TMI 333 - CESTAT MUMBAI
Levy of interest - wrongful availment of CENVAT credit which was reversed, but interest was not paid - Held that: - it is clear that the recovery of wrongly availed/utilised credit is to be accompanied by recovery of interest and, for such recovery, section 11A and section 11 AB shall be the instruments.
Extended period of limitation - Held that: - The proceedings against the appellant were initiated on 12th April 2011 which is clearly beyond the normal period of limitation in connection with the alleged incorrect availment of credit. The period of limitation is liable to be extended only upon a finding of existence of ingredients such as fraud, suppression etc. Invoking of the extended period would, therefore, not be consistent with the findings of the first appellate authority that the wrong availment is nothing but a mistake on the part of the assessee. In these circumstances, the invoking of provisions in section 11A of Central Excise Act, 1944 is not tenable.
It is clear from the record that the appellant had reversed the wrongly availed credit immediately upon it being pointed out. Hence, there was no further scope for initiating recovery proceedings in relation to this credit.
The charging of interest in the impugned order is not valid and must be set aside - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 332 - CESTAT MUMBAI
Refund claim - unjust enrichment - Held that: - It is not in doubt that the assessee had deposited the duty liability on ‘road delivery charges’ subsequent to the discharge of duty liability on clearance of the vehicles manufactured by them. It is also not in doubt that the Tribunal had held this levy to be beyond the scope of the provisions of section 4 of Central Excise Act, 1944 with consequential relief in the form of refund - It is also common ground that the respondent had made entries in the books of accounts leading to the inclusion of the disputed amount as ‘receivables’ in the final accounts pertaining to 2011 and that a Chartered Accountant had certified that the duty burden had not been passed on to customers. The original authority having found that this was not sufficient evidence and the first appellate authority having taken the contrary view that deposit of duty made after clearance was sufficient to establish the incidence of duty having been borne by the assessee, the sole point for determination is the sufficiency of compliance with the requirement to establish that the burden of duty had not been passed on - appeal dismissed - decided against Revenue.
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2017 (7) TMI 331 - CESTAT MUMBAI
CENVAT credit - omission of rule 12B of Central Excise Rules, 2002 - it is alleged that the appellant, though no longer entitled to the facility of credit, continued to do so even after the deletion of the said rule and hence was determined as being liable to the duties and penalties as ordered by the original authority - Held that: - we find no flaw in the contention of Revenue that the credit lying in balance after adjustment of the duty on the unsold stock would no longer be available to the respondent - it is also seen that there is no evidence that the respondent had utilised credit after 9th July 2004. Indeed, it is inconceivable that this should have been so for the claim of the respondent to have become a manufacturer in its own right is based on acquisition of a production facility at Bhiwandi which is in a different Central Excise jurisdiction and it would have been impossible for that unit to escape payment of duties on clearance - The determination of duty liability is therefore without authority of law and liable to set aside - penalty also set aside - appeal dismissed - decided against Revenue.
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2017 (7) TMI 330 - CESTAT CHANDIGARH
Service of order - case of applicant is that they have not received the impugned order and they received the impugned order only 04.07.2016 on the directions of the appellate authority in RTI - whether the Revenue has complied with the provisions of Section 37C of the Central Excise Act, 1944 for delivery of impugned orders on the applicants or not? - Held that: - if the order is sent by speed post, there should be proof of delivery is to be provided by the Revenue - Admittedly, no such proof has been produced by the Revenue. In that circumstances, presumption goes in favour of the applicant that they have not received the impugned orders in time, therefore, it is held that the Revenue has failed to prove the compliance of the provisions of Section 37(C) of the Act - the applications for Condonation of delay are allowed by condoning the delay in filing the appeals.
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2017 (7) TMI 329 - CESTAT HYDERABAD
Refund claim - time limitation - whether the refund claim filed by the appellant, which was rejected as being filed beyond the period of limitation is correct or otherwise? - Held that: - refund claim rejected only on the ground that the appellant had not filed requisite documents in furtherance to the letter on 04.06.2007. It is to be noticed that the gist of the letter dated 04.06.2007, only seeks some clarification as to whether the amount has been debited or otherwise and they have not submitted the cancelled invoices or the subsequent invoices. The said letter has not rejected the refund claims - time limit of refund claim has to be counted from the date of filing of the refund claim - the appeal is allowed and remitted back to the adjudicating authority to process the refund claim - appeal allowed by way of remand.
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2017 (7) TMI 328 - CESTAT ALLAHABAD
Penalty u/r 209A of CER, 1944 - CENVAT credit - Held that: - there being no suppression of facts and/or contumacy conduct on the part of the appellant, the penalty is set aside - the appellant is entitled to take back the CENVAT Credit debited in their register by way of pre deposit during the pendency of this appeal with interest, as per Rules - penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 327 - CESTAT NEW DELHI
Valuation - related party transaction - Held that: - the impugned order did not explain how two Private Limited Companies having separate legal existence, can be considered as “relatives”. Relationship between natural persons holding position in these companies cannot make these two companies automatically “relative” within the meaning of Section 4. Also, there is no cost calculation based CAS-4. It is not clear how the value of 110% is arrived at by the lower authorities - matter remanded for fresh consideration - appeal allowed by way of remand.
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2017 (7) TMI 326 - CESTAT MUMBAI
CENVAT credit - Appellant's grievance is that before incorporation of sub-rule (3) to Rule 3 of CCR 2004, CENVAT credit availed on the written off goods shall not be liable to duty which is equivalent to CENVAT credit availed - Held that: - in absence of a specific provision, the claim of availment of CENVAT credit thereon and not used in manufacture should not result in denial of CENVAT credit availed - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 325 - CESTAT MUMBAI
Re-crdit of duty on goods returned by the customer - Held that: - The appellant has no answer why such a procedure has been followed especially when jurisdiction is separate and the goods were received elsewhere is also not made known to the jurisdictional officer of Pune. Therefore, the appellants modus operandi does not exhibit that it has come out with clean hands when procedural deviation was made depriving Revenue to have control on appellant - appeal dismissed.
CENVAT credit - fake and fictitious invoices - Held that: - details of invoices involving the above said duty not being available on record for examination at this stage, to reach to rational a conclusion, as to whether the invoices raised were fake and fictitious, the matter is remanded to the adjudicating authority to examine the genuinity of such invoices, the time gap between raising of the invoices and cancellation thereof, etc. - matter on remand.
Generation of scrap - demand - Held that: - records do not reveal why that has not suffered duty. On that count, the appeal is dismissed.
Penalty - interest - Held that: - to the extent of duty demand sustained as discussed thereinbefore, penalty shall be leviable and duty unpaid shall follow interest.
Appeal allowed by way of remand.
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2017 (7) TMI 324 - CESTAT NEW DELHI
Write-off of inputs and finished goods - whether the appellant is required to pay Central Excise duty/reverse the Cenvat Credit, so availed on the goods (inputs and finished products) written off in the books? - Held that: - The period involved in this case is from 2002-2003 to 2003 2004. The provisions for writing off the value of inputs / capital goods were inserted under Rule 3(5B) in the CCR, 2004 by N/N. 26 /2007 CE (NT) dated 11.5.2007. Since the period covered in this case is prior to insertion of sub rule (5B) in Rule 3 of Credit Rules, 2004, the embargo created therein is not applicable retrospectively for denying the cenvat credit to the appellant.
With regard to packing material, inputs and finished goods, the learned advocate submits that embargo under Rule 3(5B) ibid will not have any application inasmuch as those goods are very much available and were not removed from the factory. However, this particular aspect was not dealt with by the lower authorities - Therefore the matter should go back to the original adjudicating authority for verification.
Appeal allowed in part and part matter on remand.
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2017 (7) TMI 323 - CESTAT NEW DELHI
Recovery of interest amount in respect of rebate claim, without issuance of SCN - Held that: - Out of the sanctioned rebate amount, an amount of ₹ 26,76,321/- was adjusted by the Asstt. Commissioner towards interest liability, relatable to earlier erroneous refund. Such action on the part of the Department, does not appears to be is in conformity with the statutory provisions, inasmuch as, for recovery of the interest amount, no SCN was issued by the Department, as provided under section 11A of the CEA, 1944 - once it has been held that the appellant is entitled for rebate claim, in absence of any specific provision for recovery of interest amount there-from, suo motu recovery of such amount by the Department is contrary to the statutory provisions - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 290 - BOMBAY HIGH COURT
Recovery of the amount of excise duty - Held that: - the demand of excise duty itself could have been challenged before the Tribunal, but that demand was not challenged and attachment order was challenged in this Court. When the demand order is still there, it cannot be called as an illegal at present and further when the petitioner had undertaken to make payment of the said amount in the present petition, which was to the effect that he will deposit the amount by the end of December, 2005 and January, 2006, this Court is not expected to stay only the attachment order. The petitioner has virtually misused the process of law and the recovery was virtually stalled due the interim order passed by this Court - petition dismissed - decided against petitioner.
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2017 (7) TMI 289 - CESTAT HYDERABAD
Classification of Micronutrients - Chelamin, Agromin, Chelafer and Chelacop - Held that: - the impugned products definitely do contain more than one of the essential nutrients listed in the circular, they have also contain recognisable percentage of nitrogen. This being so, the disputed items are certainly micronutrients - In view of presence of nitrogen, and also considering that they are mixtures and not separate chemically defined compounds, the said goods would therefore come under the ambit of micronutrient fertilisers and will then required to be classified as in other fertilisers in CETH 31.05 - appeal dismissed - decided against Revenue.
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2017 (7) TMI 288 - CESTAT ALLAHABAD
Doctrine of merger - refund claim - Payment of duty through CENVAT account - required balance was not available on due dates in CENVAT account - Held that: - in view of the Principles of Doctrine of Merger no refund of Cenvat Credit, as ordinarily debited for payment of duty wrongly, arises. Thus, the refund of such amount of ₹ 10,30,893/- have been rightly rejected by the Adjudicating Authority - appeal allowed - decided in favor of Revenue.
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2017 (7) TMI 287 - CESTAT NEW DELHI
CENVAT credit - denial of credit on the ground that at the time of procurement of the capital goods, the assessee was availing the exemption provided under Notification dated 10.06.2003 - Held that: - Sub Rule (4) of Rule 6 of the CCR mandates that no cenvat credit shall be allowed on capital goods, which are used exclusively in the manufacture of the exempted goods - In the present case, it is an admitted fact on record that during the time of procurement of the capital goods and their installation within the factory, the appellant was availing the exemption provided under Notification No. 50/2003-CE dated 10.06.2003. Since at the time of installation, the final products were exempted from payment of duty and no other goods were manufactured, which attracted payment of duty, as per provisions of sub rule (4) of Rule 6 ibid, CENVAT benefit is not permissible to the appellant.
CENVAT credit - godown rent - denial on the ground that the said service is not confirming the definition of input service inasmuch as, said service was utilized by the appellant beyond the place of removal - Held that: - Since the godonwn was not a part of the registered factory premises, the same cannot be considered as “place of removal” for the purpose of consideration for CENVAT credit under Rule 2 (l) ibid - credit not admissible.
Appeal dismissed - decided against appellant.
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2017 (7) TMI 286 - CESTAT MUMBAI
CENVAT credit - Rule 6(3) of the CCR, 2004 - Palladium - Platinum - case of the department is that both the products are exempted goods in terms of Notification No. 6/2002-CE dated 1.3.2002, therefore for removal of these goods, the appellant is required to pay 10% for the reason that they have availed CENVAT Credit in respect of certain services namely, Advertising Services, Business Auxiliary Services, Broadband services, Chartered Accountancy Services, Cleaning services, Courier services, GTA services - Held that: - Rule 6(3) is applicable only in respect of manufactured goods, but if it is found that the goods sold by the appellant are traded goods, Rule 6(3) is not applicable as the trading goods are not manufactured exempted goods - both the lower authorities have not properly verified whether the goods sold by the appellant is a traded goods or it is manufactured by the appellant - matter requires reconsideration - appeal allowed by way of remand.
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2017 (7) TMI 285 - CESTAT HYDERABAD
CENVAT credit - activity of replacement of roof - whether the appellant is eligible to availed CENVAT credit of service tax paid by them to service provider? - Held that: - appellant may have entertained bonafide belief that they were eligible for availment of CENVAT credit hence the activity of availing of CENVAT credit cannot be held as with malafide intention to evade the duty liability. Accordingly, it is to be held that the penalty imposed in this appeal is unwarranted - CENVAT credit of the service tax on the service rendered by the service provider being an activity of replacement of roof, demands are confirmed with interest but the penalty imposed is set aside - appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 284 - CESTAT MUMBAI
Refund claim - maintainability, or otherwise, of the refund claimed which, in effect, seeks restoration of a credit that had been reversed consequent upon an adjudication order - denial on the ground that claim for refund had not been filed within the stipulated period prescribed in section 11B of Central Excise Act, 1944 - Held that: - restoration of credit is mere accountal that was not required to be processed in accordance with section 11B of Central Excise Act, 1944. Consequently, the claim for refund, the show cause notice for rejection, the adjudication order and the impugned order are not sustainable in law - when the refund claim itself deprived of the authority of law, the appeal before the Tribunal is infructuous - the entire proceedings from the beginning are not maintainable in law and that the appellant is at liberty to adjust the CENVAT credit to the extent permitted by the CENVAT Credit Rules, 2004 - appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 283 - CESTAT HYDERABAD
Clandestine manufacture and removal - It is the case of the Revenue that appellant had dispatched processed manmade fabrics in the guise of cotton fabrics by claiming an ineligible exemption. While it is the case of the appellant that the samples which were drawn by the authorities do not match with the lot register maintained by the appellant in the factory premises and there is no evidence indicating that there was clandestine manufacture and removal of manmade fabrics - Held that: - the merchant manufacturers have given a declaration, we find that the said declaration as per the N/N. 305/77 is only in respect of payment of differential duty in the case of final assessment, if there are findings that selling price declared by the merchant manufacturers are incorrect. The Revenue's case in this appeal is not that the selling price was incorrect. In view of this, this argument of the appellant also fails.
The test results of the samples would be applicable only to those consignments wherein the samples were drawn - the findings recorded by the adjudicating authority while dropping the demands, raised by holding that there are no test reports to confirm that the goods were manmade fabrics, are correct and legal.
Appeal dismissed - decided against appellant.
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2017 (7) TMI 282 - CESTAT HYDERABAD
100% EOU - Remission of duty - Rule 21 of Central Excise Rules, 2002 - claim of appellant is that the goods though cleared for export by customs authorities at ICD, the same could not have been exported due to accident - Held that: - It is the case of the appellant that the issue is res integra as the Larger Bench of this Tribunal in the case of Honest Bio-Vet Pvt. Ltd. Vs. CCE, Ahmedabad-I [2014 (11) TMI 579 - CESTAT AHMEDABAD] was considering the same issue and held that remission is allowed on the goods which were cleared for export but could not be exported due to accident - appeal allowed - decided in favor of appellant.
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