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Central Excise - Case Laws
Showing 81 to 100 of 338 Records
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2017 (7) TMI 895
CENVAT credit - capiatl goods and inputs - welding electrodes used for repaid and maintenance of their capital goods like conveyor systems, SMS crane, structural electrical etc. use of the final product in their factory - Held that: - on the identical issue, the Tribunal in the case of CCE&ST Vs. M/s. Orient Cement Ltd. [2017 (5) TMI 629 - CESTAT HYDERABAD], the appellant is eligible for CENVAT Credit on the impugned goods - appeal allowed - decided in favor of appelalnt.
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2017 (7) TMI 894
CENVAT credit - inputs - whether HR Coils, Aluminium Coils, Welding Rods etc., undisputedly used for the repair and maintenance of various capital goods, in the factory premises of the appellant are eligible to CENVAT credit under the definition of input as prescribed under Rule 2 (k) of CCR, 2004? - 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 appellant.
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2017 (7) TMI 893
SSI Exemption - N/N. 8/2001-CE dated 01.03.2001 as amended - Revenue entertained a view that the appellant manufactured the branded goods and accordingly, not eligible for the said concession - Held that: - the restriction for denial of exemption Notification in terms of Para 5 of Notification 8 of 2001, availability of any symbol monogram, writing, in such goods indicating connection in the course of trade between such goods and the some person using such name, is sufficient. On perusal of evidences, we are satisfied that the goods manufactured did bear such brand name, which will make the appellant ineligible to claim the SSI exemption.
Most of the purchase bills produced by the appellant, where reference is to nuts. The present case is relating to bolts with names embossed on them. As such, we find that the purchase documents cannot be linked with the seized goods.
Penalty u/s 11AC - Held that: - In respect of the goods, which were still lying in the factory, no duty demand can be confirmed and accordingly, equivalent penalty cannot be imposed in terms of Section 11AC of the Central Excise Act, 1944. Accordingly, we find that the confirmation of duty demand and imposition of equal amount of penalty on the goods, which are still lying in the factory premises, is not sustainable.
Appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 892
Clandestine removal - job-work - penalty - The Revenue's case is that after job work, the goods have been received back in the factory of the appellant and further process has been carried out thereon - The case of the appellant is that after carrying out the further process, these finished goods were entered in RG-I register - Held that: - The Revenue has not proved that the goods received from the job worker and after further process were not entered in RG-I register. If the Revenue would have proved that all the goods received from the job worker back and after process the same has been cleared without payment of duty. In that case, there shall be a case of open and shut but in this case only duty involved of ₹ 42243/- has been established that the appellant had cleared the said goods on the basis of challans of the job worker and after processing without any invoices, the demand of ₹ 42,243/- alongwith interest is confirmed and penalty equal to that is also imposed - demand of ₹ 42,243/- is confirmed along with interest and equivalent amount of penalty is also imposed.
For the remaining demand, it shows that the investigation has done half heartedly without bringing concrete evidence of clandestine removal of goods. Therefore, the demand is not sustainable.
With regard to the statement recorded from M/s Chawla Auto Agency, although M/s Chawla Auto Agency has admitted that they have received the goods without cover of invoice but the appellant has never admitted that fact, moreover, while issuing show cause notice M/s Chawla Auto Agency was not made party to the proceedings to impose penalty under Rule 26 of the Central Excise Rules, 2002, which shows that the evidence collected from M/s Chawla Auto Agency are not fair evidence to allege clandestine removal of the goods by the appellant to M/s Chawala Auto Agency without cover of invoices, therefore, the said demand is not sustainable.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 891
Refund of Central Excise duty paid on coal procured - jurisdiction - denial on the ground that the appellant is falling under special economic zone and as such the said officer has no jurisdiction to decide claim by the person located in SEZ, in terms of SEZ Act and Rules made thereunder - Held that: - Section 11B states any person claiming refund of any duty of excise. No distinction has been made that the claimant should be the manufacturer or the person, who paid the duty to the Government.
Jurisdiction - Held that: - In the present case, the duty of excise has been paid by M/s Mahanadi Coal Field Ltd., though by applying the relevant provisions of law, they ought not to have paid the duty as the are to recognized SEZ unit/developer. Regarding the duty paid nature of the product, receipt of the said product by the appellant, there are no disputes - the jurisdiction issue has been under consideration with the Ministry of Finance as well as Minintry of Commerce and ultimately the Ministry of Commerce issued Notification dated 05.08.2016. This Notification specified that the refund, demand, jurisdiction, review and the appeal with reference to various operations under SEZ Act, 2005, shall be with a jurisdiction of Central Excise authorities in accordance with the relevant provisions of Customs Act, 1962, Central Excise Act, 1944 and Finance Act, 1994. We find that the said Notification makes the position amply clear on the question of jurisdiction of Central Excise officers to deal with the claim in the present matter.
The impugned order set aside and the original authority directed to examine the claim afresh on merit - appeal allowed by way of remand.
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2017 (7) TMI 890
CENVAT credit - job-work - place of removal - denial on the ground that the place of removal of the goods manufactured by appellant on job work basis is the factory premises and not the depot of PBPL? - Held that: - similar issue in respect of other job workers of PBPL, was before the Tribunal in many cases, where, the Bench in detailed order held in favour of the appellants therein. In view of the fact that similar issue has been decided in favour of various job workers on identical set of facts, I find that the impugned order in this case also does not survive - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 889
Valuation - die modification charges - case of Revenue is that the die modification charges has also to be amortised in the value of the motor vehicle parts manufactured by the appellants in same manner as the cost of dies is amortised - Held that: - the amortisation cost of die/tools/ moulds has to be included in the assessable value of the excisable goods manufactured out of such tools/die/mould supplied free of cost by the customer even though it does not make any difference whether the appellants have carried out the modification. Even if the modification is carried out by someone else, the value of modification will enhance the value of the tools/dies. When such modified tools/dies used by the manufacturer the said enhanced value shall be considered for taking the cost of the tools/die for purpose of amortisation. Therefore whether it is the original cost of the die or enhanced cost due to addition of modification charges it is one and the same and the cost of the die should be taken as the original cost of the die plus modification charges. That is the total cost of the die which is to be amortised. Accordingly, the amortisation cost of modification charges of the dies has to be included in the assessable value of the goods manufactured with the help of such die/tools. Hence the amortisation of modification charges of die is required to be included in the assessable value.
Extended period of limitation - penalty - Held that: - there was no means for ascertaining that the appellants have collected die modification charges in respect of those dies/tools which are used for manufacture of excisable goods of the appellants. In this fact there is a clear suppression of fact on the part of the appellants. Therefore the extended period was legally and correctly invoked by the adjudicating authority. For the same reason the penalty imposed under Section 11AC is also sustainable.
Appeal dismissed - decided against appelalnt.
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2017 (7) TMI 888
CENVAT credit - job-work - transfer of credit - whether the appellant is entitled to CENVAT Credit for the inputs which have been purchased initially by the job-worker and utilized within the job-workers premises for the product of the appellant and later sold to the appellant? - Held that: - the matter is covered by the Tribunals decisions in the cases of Flex Industries Ltd. Vs. Commissioner of Central Excise [2006 (2) TMI 439 - CESTAT, NEW DELHI], where it was held that since the job workers had used duty paid inputs for the processing carried out by it, the appellants were rightly eligible for the transfer of those credits - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 887
100% EOU - Manufacture - As the appellant is 100% EOU and cleared basmati rice, broken rice and bran made into DTA without payment of duty, therefore, two show cause notices were issued to demand excise duty on the said clearance of basmati rice, broken rice and brown rice cleared into DTA - whether the conversion of paddy into rice amounts to manufacture as per Section 2(f) of the Act? - whether the rice, rice bran and broken rice are excisable goods, in terms of Section 2(d) of the act or not?
Held that: - reliance was placed in the case of Dunar Food Ltd. Vs. CCE [2016 (11) TMI 636 - CESTAT CHANDIGARH], where it was held that the conversion of paddy into rice does not amount to manufacture and rice/rice bran/broken rice are not excisable goods in terms of Section 2(d) of the Act - the conversion of paddy into rice/broken rice/rice bran does not amount to manufacture in terms of Section 2 (f) of Central Excise Act, 1944 and the rice/rice bran/broken rice are not excisable goods in terms of Section 2(d) of the Act - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 886
Manufacture - Aluminum frames, shutters and other parts of doors and windows - it appeared that the activity carried out by M/s. Ascon Arabian Aluminium Company (P) Ltd., amounted to manufacture and they have manufactured the same without obtaining Central Excise registration and cleared the same without following the Central Excise procedure and without payment of duty - Held that: - as per the direction of the Tribunal, the learned Commissioner has clarified the entitlement of modvat credit of ₹ 18,17,187/- which the Commissioner is held that the appellant is entitled to the same. Further the Commissioner has also reworked the duty liability after considering the SSI exemptions and has determined the total duty payable amounting to ₹ 6,18,103/-. Further the learned Commissioner has held that the appellant is liable to pay interest on the duty demand as the interest liability is compensatory in character which is imposed on the assessee who has withheld the payment of any tax or duty and such liability arises automatically by operation of law. Further I find that the learned Commissioner has observed that though the appellant is liable to pay the mandatory penalty under Section 11AC but since the Tribunal in the impugned order has directed him to impose nominal penalty and therefore he has only imposed a nominal penalty of ₹ 10,000/- under Section 11AC.
Redemption fine - Held that: - the Tribunal has observed that there are several judgments for not imposing mandatory penalty and redemption fine in the facts and circumstances where the goods are cleared without payment of duty if bonafides are established - redemption fine dropped.
Penalty - Held that: - the imposition of penalty of ₹ 10,000/- is justified.
Appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 885
Waste/scrap - excisability - Whether the appellants M/s IOC is liable to pay duty on the scrap of capital goods and on the Spent Catalyst? - Held that: - the issue of whether waste and scrap, which is generated in the course of manufacture due to scrapping of worn out parts of capital goods would attract any duty or require reversal of Cenvat Credit before 16.05.2005, when Sub Rule 5A to Rule 3 of Cenvat Credit Rules, 2004 was introduced, was settled by the judgment of Hon’ble Madras High Court in the case of CCE, Pondicherry Vs. CESTAT [2013 (7) TMI 53 - MADRAS HIGH COURT], where it was held that when the scrap had not arisen out of manufacture, but arising on account of wear and tear in the absence of specific provision for such waste and scrap in the relevant rules, duty could not be demanded.
As to the leviability on the excise duty on spent Zinc Oxide Catalyst, we find that the same is not a new product arising during the manufacture of final Petroleum products. Since no new item is emerging as a result of the manufacture, duty is not liable on the same.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 884
CENVAT credit - furnace oil - duty paying invoices - Held that: - the appellant has rightly availed the credit as per the invoices issued by M/s. BPCL and therefore, the Department cannot question the CENVAT credit availed by the appellant on the basis of valid invoices issued by the supplier - reliance placed in the case of COMMISSIONER OF C. EX., DELHI-II Versus RS. INDUSTRIES [2005 (7) TMI 117 - HIGH COURT OF DELHI] - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 846
Classification of goods - micronutrients - classified under CTH 3105 of CETA or under CTH 3808 of CETA? - Department took the view that micronutrient products remain excluded from classification under CET 3105 and that the products should be classified only as Plant Growth Regulator under CETA 3808.20 - Held that: - similar issue decided in the case of CCE & ST Hyderabad-IV Vs Aries Agrovet Industries Limited, [2017 (7) TMI 289 - CESTAT HYDERABAD] wherein it was held that micronutrients will require to be classified as other fertilisers in CETH 3105 - since the issue per se relates to a dispute on interpretation of classification, there cannot be any imposition of penalty or for that matter confiscation of goods, land & machinery and the orders imposing such penalties or confiscating such goods etc. in the impugned order is set aside - appeal allowed in toto - decided in favor of Appellant.
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2017 (7) TMI 845
Job-work - N/N. 214/86-CE - Revenue entertained a view that the electrical stampings are also being used by the appellant in the manufacture of PD pumps, which are exempted. As such, the assessee is required to pay duty on electrical stampings, as the same were got manufactured by them from the job workers who cleared them without payment of duty. Inasmuch as the PD pumps are exempted, the appellant is required to pay duty on the electrical stampings - Held that: - The dispute herein relates to the factual position - it is not clear as to what are the quantities of raw materials sent by the appellant in terms of N/N. 214/86, i.e. whether all raw materials dispatched were covered or only the raw materials sent for conversion into stampings which are to be used in fans. It is also seen that the notification contemplates execution of bond to cover such goods. It is necessary that the factual position as to what were the quantities of raw materials covered under the notification is required to be ascertained and a fresh order passed on that basis - appeal allowed by way of remand.
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2017 (7) TMI 844
CENVAT credit - Iron Steel items used in the course of setting up of the said Sponge Iron Plants - Revenue entertained a view that these items cannot be at all categorised as inputs or capital goods in terms of CENVAT Credit Rules, 2002 and initiated proceedings against the respondent to recover the credits already availed by them - Held that: - the main thrust of the argument of the Revenue is that the iron and steel items like angles, sheets, plates etc. were mainly used in the support structure of these heavy capital fabrications and will not satisfy the criteria of parts and components or accessories of such machinery. We find that such observation has to be supported by material facts. The same is not available in the present appeal - appeal dismissed - decided against appellant.
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2017 (7) TMI 843
Refund claim - unjust enrichment - whether the appellant herein is required to cross the hurdle of unjust enrichment in respect of refunds claimed by him of an amount wrongly debited i.e. 8% or 10% value of the goods cleared from the factory premises? - Held that: - the appellants were required to pay an amount of ₹ 63,68,953/- along with interest of ₹ 50,352/-. They were eligible for refund of the same. As these amounts do not represent duty, the refund of the same need not be subjected to the procedure prescribe under Section 11B of the Central Excise Act.
Time limitation - Held that: - the question of time barred does not arise as the First Appellate Authority, has recorded clearly that amount @ 8% or 10%, are debited in January 2012, February 2012 and the issue was finalised by the First Appellate authority in the favour of the assessee vide an order dated 13.03.2013 and appellant filed refund claim on 27.03.2013 within the time prescribed the provisions - refund cannot be rejected on account of time bar.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 842
Penalties u/s 11AC of CEA, 1944 - SSI exemption - valuation - Held that: - the claim of appellant that it was bonafide mistake for non inclusion of the ready mix concrete for claim SSI exemption is on a weak footing, as there is no evidence in any form of correspondence nor any letter written by the appellant to the Department - in absence of any evidence to substantiate that the appellant had entertained a bonafide belief, appeal fails and the impugned order needs to be upheld - appeal dismissed - decided against appellant.
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2017 (7) TMI 841
Clandestine manufacture and removal - undervaluation - it was alleged that the assessee was removing drilling rigs, hammer assemblies and parts without accountal and without payment of duty and also indulging in under-valuation/under-invoicing of drilling rigs, such operations were conducted at various premises connected with the assessee on 26.03.2003 - Held that: - the adjudicating authority has analysed and addressed all these three issues in the impugned order. Adjudicating authority also accepted the request of KLR for cross examination of the persons whose statements have been relied upon in the show cause notice. The details of such cross examinations have been given in paras 32 to 43 of the impugned order. Perusal of these paras will indicate that the persons who were cross examined have, in the depositions given by them in cross examination, mostly given averments contrary to what had been purportedly given by them earlier in the statements recorded from them by the department officers. In other words, the statements of such persons, which have been relied upon in building up the case against KLR have been retracted by the same persons in the subsequent depositions in cross examination.
On the dispute concerning alleged suppression of value of drilling rigs, adjudicating authority has thoroughly analysed the controversy in paras 55.2 to 71 of the impugned order. Lower authority has observed that there is no mention in the show cause notice whether spares sent along with rigs termed as free replacement parts were manufactured by KLR or were bought out ones. He has also observed that while customers had paid extra amounts of cash over and above the invoice price, this could be attributed to the free replacement parts also supplied. We find that this observation of adjudicating authority has merit. From the facts on record, none of the customers from whom statements had been recorded have admitted to any connivance with KLR to suppress the value of the rigs in their mutual interest. Adjudicating authority is also correct in his finding that the department also has not been able to get any evidence of such alleged collusion between customers and KLR in the alleged suppression of value of rigs.
Appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 840
Valuation - includibility - the allegation by department is that KLR had collected excess amount over & above Central Excise invoices resulting in under valuation and evasion of Central Excise Duty, that KLR supplied bits/hammers/rig parts without discharge of Central Excise duty and that they had indulged in large scale unaccounted procurement of raw materials/inputs - Held that: - Adjudicating authority has concluded that even if it is assumed that the said private records relate to KLR, there is no other evidence to drive home the point that the contents reflect the true picture. In this regard, we find that in the de novo proceedings, pursuant to Tribunal s directions, cross examination of Smt. Anuradha Prasad was conducted on 19.07.2004, wherein inter-alia, she has retracted her earlier statement of 02.08.1997 and had complained that the same had not been given out of her volition but as per the dictates of the officers who had recorded the statement. In such circumstances, the allegations of the department, which in any case were solely based on records recovered from the office of Smt. Anuradha Prasad and the statement of Smt. Anuradha Prasad, will then be jeopardy. We are, therefore, unable to find any fault with the adjudicating authority s findings and conclusions on this score.
On the aspect of allegation that KLR had undervalued the rigs supplied to the customers, it is seen that the same is based on the statement given by customers as also the statements given by Shri K. Lakshma Reddy on various occasions. Like in the case of Smt. Anuradha Prasad, we find that Shri Lakshma Reddy had also retracted whatever he had stated in his earlier statements. We also find ourselves in agreement with the adjudicating authority s findings that even those allegations, made on the basis of such statements are not backed up by any corroborative evidence. The contention of KLR that on the date of visit to the factory by Department Officers, no unaccounted stocks of raw materials, either steel or buttons were found, has not been suitably countered by the department. This aspect definitely casts a doubt on the allegation of the department that KLR had been receiving raw materials in their factory without any accountal and using them for manufacture of unaccounted goods. The adjudicating authority has also found contradictions in the statements of raw material suppliers. In the circumstances, we hold that the adjudicating authority has been therefore correct in concluding that it would be very difficult to place reliance on them to sustain the charge of the department.
Appeal dismissed - decided against Revenue.
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2017 (7) TMI 839
Refund claim - Rent-a-cab service - whether second time filing of refund claim for the quarter for which the claim had already been filed earlier can be adopted as a ground for denial of credit or not? - Held that: - the refund claim filed by the appellant in respect of Rent-a-Cab Service is beyond their control, in as much as, the said service was approved belatedly. As such, no fault can be found with the appellant's action. The notification, in substance, allows the refund of service tax so paid on SEZ Unit and denial of the same on the ground of violation of procedural requirements cannot be upheld. It is well settled law that the substantive benefits if otherwise available, should not be disallowed on the ground of violation of procedural conditions - reliance was placed in the case of WESTERN CANS P. LTD. Versus COMMISSIONER OF C. EX., MUMBAI-I [2011 (3) TMI 757 - CESTAT, MUMBAI] - appeal allowed - decided in favor of appellant.
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