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Central Excise - Case Laws
Showing 61 to 80 of 338 Records
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2017 (7) TMI 983
Valuation - stock transfer to sister unit - Section 4 (1) (b) of Central Excise Act, 1944 read with Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - Held that: - the assessee is not contesting the liability and would like to submit only on the ground that entire transaction would give rise to a revenue-neutral situation. Thus SCN issued beyond the normal period is not sustainable - even if the duty has to be paid by appellant as alleged in the SCN, their sister concern would be able to take credit - confirmation of demand, interest and the imposition of penalty is unsustainable - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 982
Clandestine manufacture and removal - shortage of cenvat inputs - M.S. Ingots - Held that: - the revenue had neither disclosed any material nor described the method of stock taking to counter the case. The only contention is that the small quantity was lying in the factory premises and therefore, the weighment was done easily. I am unable to accept the contention of the revenue without any basis, such as, the details of the weighment etc - The Tribunal consistently observed in various decisions that stock verification cannot be conducted by a rough estimation - reliance placed in the case of M/s. Raika Ispat Udyog Pvt. Ltd. Versus CCE, Raipur [2016 (7) TMI 1029 - CESTAT NEW DELHI], where it was held that apart from the allegation of shortage based on estimation, no other corroborative evidence is presented to show that possible clandestine manufacture, clearance, transport or buyers of such goods.
The judicial view is that the stock taking would be conducted in a proper manner, which is obviously supported by some material such as, weighment slip, counting slip etc, as the case may be. It cannot be on the basis of eye estimation or otherwise - The assessee claimed that the said materials were lying at their factory and informed the department subsequently and no enquiry was conducted thereon. That the allegations in the instant case are clandestine removal of the goods and revenue had not disputed the major portion of the demand dropped by the Adjudicating Authority.
Appeal dismissed - decided against Revenue.
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2017 (7) TMI 981
Refund of Central Excise Duty - denial on the ground of unjust enrichment - Held that: - the certificates issued by the customers indicated that the respondents were reimbursed only as much duty as was paid by respondent to the exchequer. Further, Revenue has not brought forward any reason as to why provision under Rule 7(6) of Central Excise Rules was invokable in spite of such clear finding by the ld. Commissioner (Appeals) - in case of any change in Purchase Order no surplus amount has been paid and that any excess/short amount paid earlier had been adjusted against supplementary/further bills of ITI - refund allowed - appeal dismissed - decided against Revenue.
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2017 (7) TMI 980
Renting of immoveable property service - road used by the appellant - denial on the ground that the road located outside the factory of the respondent and it is not used in or in relation to the manufacture of final product - Held that: - even though the road is located outside the factory premises but the service of renting of immoveable property is received and used by the respondent. The road is used for transportation of goods which is directly related to the manufacture of final product in their factory - the service of renting of road to the respondent is an input service and the credit is admissible - appeal dismissed - decided against Revenue.
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2017 (7) TMI 979
CENVAT credit - job-work - manpower services - duty paying documents - denial on the ground that the service tax was not paid earlier and not shown in the invoice, cenvat credit was availed on the supplementary invoice - Held that: - Though the service tax was not paid at the time raising the invoice but undisputedly paid the service tax and subsequently issued supplementary invoice. It is permissible to avail the cenvat credit on the strength of supplementary invoice - The allegation of the lower authority that credit is not admissible on supplementary invoice issued in respect of service tax paid under suppression of fact is not found to be correct for the reason that the period involved in the present case is 2008, whereas this embargo of suppression of fact in respect of the supplementary invoice was brought under Rule 9(1) (bb) w.e.f. 1.4.2011, therefore denial of credit on this ground is also not sustainable - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 978
CENVAT credit - freight outward service - whether the appellant is entitled for cenvat credit on the freight outward service in respect of removal of goods for export? - Held that: - the appellant is responsible for delivery of the export goods upto the place of foreign buyer therefore in India the ‘place of removal’ is the port of export - in case of port of export being a ‘place of removal’, all the services upto the export of goods from the port of export shall be treated as input service and the credit is admissible - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 941
Classification of goods - wrist bands - The appellant sought classification of the product under 49119990 of the Central Excise Tariff as products of printing industry - the Department ordered the classification under 63079090 as made up textile article - N/N. 30/2004-CE dated 09.07.2004 - Held that: - It is reported that such wrist bands are used in places like music festivals, amusement parks etc. Even though the items are made out of non woven fabric, the essential use and character of the items is based on the matter printed on such wrist band - without the printing as required by the customers, the un-printed roll will be of no use for the purpose. Hence printing is not merely incidental to but is for the primarily use of the product. Accordingly the goods are rightly classifiable under 4911 9990 and will be eligible for clearance at ‘Nil’ rate of duty - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 940
Clandestine removal - evidence - burden to prove - Held that: - Since, the onus lies with the Department to prove clandestine removal of the goods has not been substantiated with any iota of evidence, I am of the view that the duty demand confirmed and penalty imposed on the appellant cannot be sustained and the same are liable to be set aside - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 939
N/N. 333/86-CE - denial on the ground that the appellants did not make such claim in terms of Rule 173B during the relevant timewhether or not the appellant can be extended with benefit of exemption N/N. 333/86-CE for the AR bricks found un-accounted and lying in stock? - Held that: - the said exemption N/N. 333/1986- CE is without any condition - The exemption is granted to clay bricks manufactured in mechanized brick plants. As the appellants fulfill the requirements of the said notification, we find no reason for denial of the same. Apparently they had no occasion to claim such exemption earlier as they have claimed the general small scale exemption under N/N. 175/1986 - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 938
CENVAT credit - various steel items, such as, angles, channels, beam, joists, flats, plates etc. which was for the support structures on which various capital goods - Held that: - the identical issue has been put up before the Tribunal in the case of Singhal Enterprises Pvt. Ltd. Vs. CCE, Raipur [2016 (9) TMI 682 - CESTAT NEW DELHI], where it was held that applying the “User Test” to the facts in hand, we have no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of ‘Capital Goods’ as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the CENVAT Credit - appeal allowed - decided in favor of assessee.
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2017 (7) TMI 937
SSI exemption - crossing of exemption limit - it was alleged that the appellant was clearing the goods without payment of duty even after the turnover of the appellant's unit at Bangalore and Hosur put together had exceeded the exemption limit of one crore rendering themselves ineligible for SSI exemption under N/N. 08/03-CE dated 01.03.2003 - Held that: - According to the appellant they have cancelled the two invoices No.18 & 19 and therefore the clearances shown therein are not to be considered for the purpose of value of clearances - appeal dismissed - decided against appellant.
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2017 (7) TMI 936
CENVAT credit - clearance of Capital goods without payment/reversal of CENVAT credit - extended period of limitation - Held that: - the factum of clearance of the used machinery was informed to the Department by the appellant vide its letter dated 29.01.2008 and this fact has been considered by the original authority - the assessee has correctly followed the provisions of law and informed the Department and during the relevant time, there was conflicting judgments of the High Court and the Tribunal and therefore there cannot be any allegation of suppression.
When there are conflicting judgments on the issue, the extended period is not invokable and that the show-cause notice was beyond the limitation period.
The SCN is clearly time barred - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 935
Refund claim - time limitation - Section 11B of the Central Excise Act, 1944 - Held that: - the appellant had paid the duty twice once by cenvat account and secondly by way of cash and by this appeal, the appellant only wants to take recredit of the amount of duty paid twice amounting to ₹ 2,52,605/- which has wrongly been denied by the Department - the appellant is entitled to take re-credit of the amount of ₹ 2,52,605/- and the question of limitation does not arise as retaking of credit is simple and book adjustment - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 934
Clearance of Sulphuric Acid to the captive power plant without payment of Central Excise duty or reversal of CENVAT credit - Non-payment of Central Excise duty was objected to by the Central Excise Department on the ground that the goods were supplied to a separate legal entity - Held that: - in an entirely identical matter in the appellant’s own case for the earlier period, in the case of M/s Steel Authority of India Ltd. Versus CCE, Raipur [2016 (3) TMI 153 - CESTAT NEW DELHI], this Tribunal has held that the power plant even after its transfer, remains part of the same factory, and thus, it cannot be said that any excisable goods is removed from the factory - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 933
Benefit of N/N. 6/2006-CE dated 01/03/2006 - manufacture of Hydel gates and parts thereof - The benefit under the said notification was claimed by the appellant on the ground that the goods were cleared to NTPC under International Competitive Bidding - Held that: - condition No. 86 (b) (entry No.400) is required to be fulfilled in case of import of goods by the Central Public Sector Undertaking. The said condition does not have been any application with regard to manufacture of excisable goods within the factory. Thus, reliance placed by the learned Commissioner (Appeals) on the said condition in order to deny the benefit of exemption is not correct and proper.
As regards non-registration under the project import regulation, the Department had not proposed for the said aspect in the show cause notice - the Tribunal in the case of appellant itself [2013 (11) TMI 1361 - CESTAT NEW DELHI] has also held that project import registration is not required for obtaining duty exemption contained in notification dated 01/03/2006.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 932
CENVAT credit - It was observed that the assessee had availed cenvat credit on input services on the invoices issued by these consignment agents and the same appeared to be not correct as per Rule 2(l) of the CCR, 2004 - Held that: - the issue of entitlement of cenvat credit on input services provided by commission agent was pointed out by the audit on 08.12.2009 and thereafter a show-cause notice was issued on 18.04.2013 after the expiry of four years from the date of audit which is clearly barred by limitation - even on merit the issue is covered in favor of the assessee because the sales promotion has been specifically included in the definition of ‘input service' and vide N/N. 2/2016 CE dated 03.02.2016 it has been clarified that the sales promotion includes services by way of sale of dutiable goods on commission basis and this notification is made applicable retrospectively as held in the Essar Steels India Ltd. [2016 (4) TMI 232 - CESTAT AHMEDABAD] - appeal dismissed - decided against Revenue.
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2017 (7) TMI 931
CENVAT credit - MS angles, plates, channels, joists, beams, etc., used for fabrication of supporting structures for the capital goods - Held that: - the impugned order passed by the Commissioner (A) mainly relying upon the judgment of the Karnataka High Court in the case of CCE Vs. SLR Steels Ltd. [2012 (9) TMI 169 - KARNATAKA HIGH COURT] is in accordance with law - it was held that in the case of SLR Steels Ltd., that appellate authority committed a serious error firstly in holding that the storage tank is an immovable property and secondly, on the ground that it cannot be bought and sold in the market, the criteria which is totally unwarranted - appeal dismissed - decided against Revenue.
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2017 (7) TMI 930
Large Taxpayer Unit - Suo moto availment of CENVAT credit - Held that: - it is not the CENVAT credit which was availed by the appellant suo moto rather the appellant made adjustment for the excess duty which was paid by him for the month of November 2006 to February 2007 and by clerical mistake he has paid the duty twice and made the self-adjustment after realizing his mistake which is permitted in terms of Rule 12BB applicable to LTU - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 897
CENVAT credit - job-work - denial on the ground that appellant had used capital goods exclusively in manufacture of Aluminium components on job work basis in terms of Rule 57R (1) of erstwhile CER, 1944 - Held that: - It is seen that on the matter of component washing machine, the appellant has been crying hoarse right from the initial adjudication proceedings that the said item was a new concept conceived and developed by them, that the same was under development, the design of the same was not yet frozen and therefore said machine was not a completely manufactured machine. We find merit in this contention. There is no allegation by department that the appellant had earlier manufactured and sold such component washing machines or for that matter, whether the said item found in the premises being utilized in the regular manufacturing operations. The averment of the appellant that it was only a prototype under development has also not been adequately countered by any of the lower authorities.
It would not be just and fair to tax the appellant for an attempt at innovation, especially when that attempt was still in process and had not culminated in manufacture of a complete and fully functional machine.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 896
Classification of boiler parts - The respondents/assessee have adopted the classification as CSH 8402.10 while the department contends the same to be classified under 8402.90 - Held that: - reliance placed in the case of COMMISSIONER OF C. EX., PUNE-I Versus THERMAX BOBCOCK & WILCOX LTD. [2005 (1) TMI 145 - CESTAT, MUMBAI], where it was held that the impugned goods are classifiable under CSH 8402.10 upholding the classification adopted by respondents/assessee - appeal dismissed - decided against Revenue.
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