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Central Excise - Case Laws
Showing 321 to 338 of 338 Records
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2017 (7) TMI 51
Time limitation - power of Commissioner (appeals) to condone delay - Held that: - The time taken from the date of receipt of the communication from Superintendent to the date of filing writ before the High Court is 19 days. Thereafter, the matter was subjudice and finally was decided by Hon’ble Rajasthan High Court on 13th May 2009 when the writ petition was dismissed on the ground of alternative remedy, relegating the appellant to the process of appeal. Thereafter from such date, the appellant filed appeal before the Commissioner (Appeals) on 24/07/2009, which on computation comes to 71 days. Thus, the appellant have taken the total of 71+19, or 90 days in filing the appeal before the learned Commissioner (Appeals). During the relevant period, that is the year 1983 as the law stood then, the time allowed for filing appeal was 90 days and further 90 days condonation period was provided, which could be condoned by learned Commissioner (Appeals) on reasonable cause being shown. In this view of the matter, we hold that the learned Commissioner (Appeals) have erred in dismissing the appeal on the ground of limitation and we hold that the appeal was filed within the period of limitation.
We find it fit and proper that the issue on merit regarding correct classification of the impugned product should be examined and decided afresh by the Jurisdictional Original Authority to whom we are remanding the matter. It is made clear that the appellants should be given adequate opportunity to submit their side of the case alongwith whatever supporting evidence they want to place - appeal allowed by way of remand.
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2017 (7) TMI 50
Classification of goods - Absorbent Cotton Wool, Carded Cotton/Non-Absorbent Cotton, Handloom Gauze, Handloom Bandages & Bandages etc. - The appellant claimed the classification of the said items under Chapter Sub-heading No.5601, 5203 & Chapter 58 whereas Revenue ordered for classification of aforesaid goods under so-called Chapter 3005 - Held that: - Id. Commissioner (Appeals) has gone into the details of the case and held that the impugned goods would fall under Chapter Sub-heading No.5601, 5203 & Chapter 58 - appeal allowed - decided in favor of assessee.
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2017 (7) TMI 49
Classification of goods - whether the goods described viz. Switches, relays, fuses, plugs, lamps in para 14 of the adjudication order belong to the Tariff heading 87.08 or 85.36/85.39 or any other entry for levy of duty under Third Schedule to the Central Excise Act, 1944? - Held that: - In the absence of detailed examination in the manner above, in the adjudication order, it is very difficult on the part of the Tribunal to go into the grass root for classification. Description of goods in tariff entry may depend on the technical literature as well as various technicalities of the goods, which learned adjudicating authority shall have advantage to examine better - to grant fair opportunity of hearing to both sides to place their case before adjudicating authority for his determination of classification and decide leviability, matters are remanded to the Ld. Authority who shall grant hearing and test each goods covered by the show-cause notice for appropriate classification and levy of excise duty, if any leviable - appeal allowed by way of remand.
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2017 (7) TMI 48
100% EOU - refund claim - rejection on the ground of time limitation - Rule 5 of CCR - Held that: - the relevant date for the purpose of time limit would start from the date on which final products are cleared for export - the matter needs to be remanded back to the original authority to decide the matter keeping in view the law laid down in GTN Engineering Ltd. [2011 (8) TMI 960 - MADRAS HIGH COURT], where it was held that the relevant date should be the date on which the export of the goods was made and for such goods - matter on remand.
Refund claim - input services - denial on account of nexus - advertisement services - membership charges - travel agent services - housekeeping service - CA service - ESI clarification - Held that: - the input service fall in the definition of input services and the appellants are entitled for refund of the same.
Appeal allowed in part and part matter on remand.
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2017 (7) TMI 25
CENVAT credit - input services - whether the Assessee can avail of Cenvat Credit of duty, paid on input services, in view of the fact that it manufactures goods, which, though exempt from duty are otherwise exported? - Held that: - It is no one's case that the goods manufactured by the Assessee were not excisable. Though the goods were excisable, the only reason, that Central Excise duty was not paid or was not payable, was, on account of the provisions of the 2006 notification. Therefore, upon executing the bond, the Assessee removed what were otherwise excisable goods without payment of duty.
India is a party to the WTO regime and, therefore, it is permissible for it to neutralise duties on inputs, whether in the form of goods or services - we see no difficulty in the Assessee's case falling in the exception carved out in Rule 6(6)(v) of the 2004 Rules. The purpose, apparently, behind carving out of such exceptions appears to be, to neutralise the impact of the duties paid by the exporters, with regard to input tax, whether paid on goods or services. The objective, obviously, is not to export duties, so as to provide much needed competitive edge to Indian exporter in foreign markets.
Appeal dismissed - decided against Revenue.
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2017 (7) TMI 24
The duty is said to have been paid under incorrect assessee code, which resulted into issuance of communications and orders - demand - Held that: - when authorities' stand became very clear from the communication at page-102 and reply that there exists no demand of duty or any sum payable from the petitioners so far as assessee code No. 001 is concerned and when the authority has also knowledge that there was a mistaken payment made under challan, which contained incorrect code i.e. Code no. 001, though it belonged to present assessee, who also has Code No. 002 also and who unequivocally intended to make payment demand, which was payable to him and which was paid, though mistakenly under wrong code i.e. Code no. 001, could not have been subjected to technical defect on the part of authority, so as to saddle with liability - this is a case of issuing appropriate mandamus for calling upon the authorities to treat the payment of ₹ 5,10,573/- against Code No. 002 from the date on which, it was paid resulting into exempting the petitioners from any coercive liability of so called non-payment against Code No. 002 - demand set aside - petition allowed - decided in favor of petitioner.
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2017 (7) TMI 23
Refund of unutilized CENVAT credit - Held that: - The Assessee is entitled to claim refund of unutilised credit in terms of Rule 5 of 2002 Rules read with 2002 notification against the amount standing to its credit in the CENVAT credit account. There is nothing either in the Rule i.e., Rule 5 of the 2002 Rules or the 2002 notification, which provides for safe guards, conditions and the limitations which would have us conclude that the Revenue could have made the aforementioned adjustments against the closing balance reflected in the Assessee's CENVAT credit account - refund allowed - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 22
Refund claim - Whether the Hon'ble CESTAT is correct in directing the consequential refund under Section 11B of the amount paid by the appellant, to be credited to the CENVAT Credit account, in the absence of any provision in the said Section for such re-credit? - Held that: - the provisions of Section 11 B(2)(c) of CE ACT 1944 would come to the aid of the Assessee. Also, there is no dispute that the refund claimed by the assessee is within the period of limitation as prescribed under sub section (1) of Section 11 B - A perusal of the aforementioned Rules would show that if on receipt of any applications, the concerned officer, who is referred to in sub section (2) of Section 11 B is satisfied that the whole or part of any duty of excise and interest if any paid on such duty is refundable, he is required to make an order of refund and the amount so determined is to be credited to a Fund, i.e., the Consumer Welfare Fund.
There is no impediment in the said amount being refunded to the Assessee by way of cash, contrary to what the Tribunal has indicated. This is the only viable and practical approach which can be adopted in the instant case as the Revenue does not dispute the fact that the final product manufactured by the assessee which is fabric, is no longer amenable to excise duty. In these circumstances, quite obviously, the re-credit of duty as ordered by the Tribunal via impugned Judgment or Order will not serve any purpose insofar as the Assessee is concerned.
Refund allowed - Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 21
Interpretation of statute - N/N. 32/2005-CE, dated 17.08.2005, read with amendment N/N. 35/2005-C.E., dated 29.11.2005; amendment N/N. 30/2006-C.E., dated 09.05.2006 and amendment N/N. 60/2008-C.E., dated 24.12.2008 - restriction of refund to the extent of duty paid on cement and steel, utilised in the construction of houses, which were affected by tsunami - Held that: - A perusal of the Notification would show that the purpose of issuing the Notification, which is an exemption Notification was to reimburse the specified goods from whole of the duty of excise leviable under the Central Excise Act, 1944 (in short the CE Act ). This aspect is evident upon the reading of the first part of Notification, wherein, it has been indicated that in excise of the powers conferred under Section 5A(1) of the CE Act, read with Sections 91 and 93 of the Finance (No.2) Act, 2004, the Central Government is satisfied that it is in public interest to exempt the cement and steel used in construction of houses, which were affected by tsunami in any concerned districts located in the State of Tamil Nadu, Andhra Pradesh, Kerala and the Union Territories of Pondicherry and Andaman and Nicobar Islands from the whole of the duty of excise leviable thereon under the said Acts .
Under clause 2 of the said Notification, it is made clear that the exemption would apply only, if, the said goods, which would be steel and cement, are used in the construction of houses, which would include temporary shelters. These houses, or, temporary shelters could be built by Non-Governmental Organization or Voluntary Agency or via Private-Public Enterprise or Rehabilitation Organization or Trust or any agency approved by the concerned State or Union Territory Government.
Upon the notification being read in the manner, as indicated above, the only conclusion one can reach, is that, it envisages reimbursement of duty paid on cement and steel used in the construction of tsunami affected houses and/or temporary shelters.
Appeal dismissed - decided against appellant.
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2017 (7) TMI 20
Pre-deposit - case of appellant is that even in so far as the balance demand in the sum of ₹ 56,79,644/- (Rs.83,64,207/- minus ₹ 26,86,563/-) is concerned, since it related to clearance by job workers, they were entitled to benefit of another Notification i.e., Notification No.83/94-CE dated 11.04.1994 - Held that: - it would suffice, if, for the moment, the main appellant deposits total amount equivalent to ₹ 50 Lakhs as against ₹ 85 Lakhs which has been ordered to be deposited by the Tribunal. Since, ₹ 47 Lakhs is said to have been already deposited, the appellant will deposit a further sum of ₹ 3 Lakhs, within two weeks from the date of receipt of a copy of the order - appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 19
CENVAT credit - inputs received from 100% EOU - whether additional duty paid under Section 3(5) i.e. SAD is includible in CVD in terms of Rule 3(7) of the Credit Rules and credit of same can be availed on inputs received from a 100% EOU unit? - Held that: - Reliance was placed on the decision of the Hon’ble Tribunal in the case of Sri Venkateshwara Precision Components v. CCE, Chennai [2010 (8) TMI 243 - CESTAT, CHENNAI], where it was held that from 1-3-05, the additional duty levied under Section 3(5) has also been made eligible for credit, it would be proper to hold that the term CVD referred to in the formula would refer to both varieties of additional duties leviable under Section 3(1) and 3(5) of the Customs Tariff Act, 1975 - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 18
Rectification of mistake - Held that: - the adjudicating authority has imposed fine on the appellant no. 1 under Section 34 of the Central Excise Act, 1944 in lieu of the confiscation of goods cleared in contravention of the provisions of the Central Excise law. From the operative part of the adjudication order, it is evident that goods were liable for confiscation. Thus, the provisions of Rule 26 of the Central Excise Rules, 2002 can be invoked for imposition of personal penalty - imposition of personal penalty on the appellant no. 2 under Rule 26 ibid is proper and justified - the quantum of penalty is reduced from ₹ 2, 00,000/- to ₹ 50,000/- - appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 17
CENVAT credit - input services - servicing of Air-Conditioners - Civil Works and Road Works at Bellary Road office - rental charges for space for coolers at malls - cooler maintenance and repair services - Held that: - the disputed services on which cenvat credit has been denied fall in the definition of input service as provided in Rule 2(l) of Cenvat Credit Rules, 2004 - the issue is squarely covered in favour of the appellant by the decision in the case of M/s. Carrier Airconditioning & Refrigeration Ltd. Versus CCE, Gurgaon [2016 (3) TMI 124 - CESTAT NEW DELHI] and Commissioner of S.T., Mumbai-II Versus MMS Maritime (India) Pvt. Ltd. [2016 (5) TMI 682 - CESTAT MUMBAI] - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 16
Penalty u/s 11AC - Quantum of reversal of credit - Rule 6(3)(b) of CCR - The department's contention is that value for the purpose of 6(3)(b) should be the total contract price minus works contract sales, no other element are deductible from the total value for the purpose of calculating 8% - Held that: - the issue indeed involved interpretation of the valuation provision in a case where a value is towards the works contract and arrived at the value of 6(3)(b). Therefore, looking to the nature of the issue no malafide can be attributed to the appellants. Accordingly, penalty under Section 11AC is not imposable.
Job-work - demand of differential amount of 8% between the value of amount charged to the customer and the value on which the job worker reversed 8% - Held that: - the goods were manufactured by the job worker being a manufacturer they have reversed 8% under Rule 6(3)(b). Therefore, no differential duty if any can be raised against the appellants. Therefore, this demand and its corresponding penalty does not sustain, hence the same are set aside.
Appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 15
CENVAT credit - duty paying invoices - duplicate copy if invoices - Sub-rule (6) of Rule 57G of the Central Excise Rules, 1944, provides that a manufacturer may take credit on inputs received in his factory on the basis of original invoice, if duplicate copy of the invoice has been lost in transit, subject to the satisfaction of the Assistant Commissioner that the inputs have been received in his factory and the duty was paid on such inputs - appellant placed reliance in the case of SWADESHI KOREATEX Versus COMMISSIONER OF CENTRAL EXCISE, JALANDHAR [2007 (4) TMI 426 - CESTAT, NEW DELHI].
Held that: - The supplier of the input had not given the details of payment of duty and debit particulars and therefore there is no basis for availing credit. Similarly, (Sl.No.ix), where the appellant is not the consignee, Modvat credit is not available. It is noted that after introduction of invoice system, the endorsed invoices cannot be accepted. In any event, further, Sl.No.x, credit taken on endorsed Bill of Entry after 01.04.94, I find that the law was amended to take credit on the basis of the invoice of the registered dealer or other procedures, which was not followed by the appellant and therefore, they were not eligible to take Modvat credit.
The other item (xii), Modvat credit is not available on the basis of the documents, not covered under Rule 57G. The ld.Counsel submitted that it is a case of transitional period and therefore, credit should not be denied. I find that the Board had issued various circulars for availment of the credit during the transitional period and the appellant had not followed it. Therefore, they are not entitled to avail the credit.
Penalties set aside.
Appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 14
Penalty - unutilised CENVAT credit - the appellant availed the input credit wrongly twice and when it was pointed, the same was reversed with interest of ₹ 82,256/- which was paid on 19.2.2008 - Held that: - in the SCN, the Revenue has not alleged any suppression or fraud or willful misstatement with intention to avail irregular credit, and; as and when it was pointed out, the same was reversed. Since there was no allegation of suppression, therefore the extended period of limitation is wrongly invoked to impose penalty on the appellant as the necessary ingredient of Section 11AC of the Central Excise Act is missing in the present case - penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 13
CENVAT credit - denial on the ground that the finished products cleared by them and received back by them under Rule 16 of Central Excise Rules, 2002 were scrapped and hence they should have reversed the CENVAT credit availed on such goods - Held that: - the assessee have not furnished any documents to correlate that the 3845 Nos. of rocker arm are the same as one which was exported and re-imported vide Bill of Entry No.801664 as the B/E is dated 9.5.2005 and the date of accountal of the said goods in Annexure III is 4.10.2005 and also the quantity received as per Bill of Entry and quantity in Annexure III does not match - Further, the assessee have also not adduced any documentary evidence to show that the said goods were still in stock - credit rightly denied - appeal dismissed - decided against appellant.
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2017 (7) TMI 12
CENVAT credit - cement and TMT bars used for construction of water tank /storage tank - denial on the ground that storage tank made out of cement and steel, is immovable in nature - Held that: - the Hon’ble Karnataka High Court in the case of SLR Steels Ltd. [2012 (9) TMI 169 - KARNATAKA HIGH COURT] have held that storage tank is specified as capital goods in the definition provided in Rule 2 (a) (A) (vii) of the Cenvat Credit Rules, 2004, and thus, steel and cement, used in the manufacture of the eligible capital goods i.e. storage tank, should merit consideration as input for the purpose of availment of cenvat credit, on the duties paid thereon - appeal allowed - decided in favor of appellant.
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