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Central Excise - Case Laws
Showing 21 to 40 of 411 Records
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2017 (9) TMI 1791
Disposal of the dutiable goods on which duty liability was not discharged - It is the case of the appellant that the goods have been disposed of by the District Magistrate as per Court Order and proceeds were paid to the farmers. Since they have not disposed of the goods, they are not liable to pay the duty - Held that:- The issuance of SCN is immaterial in the circumstances as the duty not paid by the Appellants is to be treated as ‘recoverable arrears of revenue’ and action taken accordingly, because it is an outcome of self-assessment vide the ER-1 returns - In view of this, it is not necessary to go into the contentions of Appellants regarding disposal by District Administration - appeal dismissed - decided against appellant.
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2017 (9) TMI 1790
Rebate of duty - CVD paid on imported inputs which were used in the manufacturing of exported tractors - Held that:- There is no dispute in this case relating to the fact that the applicant has imported some of the inputs on payment of additional duty of Customs, i.e. countervailing duties (CVD), and the same were used in the manufacturing of exported tractors. There is also no doubt that N/N. 21/2004 provide for rebate of duty in respect of CVD also as the word ‘duty’ for the purpose of paying rebate claim is defined to include even the CVD. These facts are expressly accepted by Commissioner (Appeals) also in his order - However, still, the applicant is not allowed rebate of duty in respect of CVD for the reason that they have imported the inputs directly and did not obtain imported materials from the registered factory or from dealers under the excise invoices as is prescribed in para 3 of N/N. 21/2004.
For getting rebate of duty under N/N. 21/2004 procurement of materials from a registered manufacturer or a dealer is essential and this para does not provide for obtaining of material from any other source, including direct import of the goods. Thus under N/N. 21/2004 it is implicit that procurement of material by a manufacturer directly by importing goods is not authorized for the purpose of getting rebate of duty on the inputs used in the exported goods. The applicant has not come forward with any reasoning or a grounds to how the clear text of para 3 of the N/N. 21/2004 which is a sole basis for denial of rebate claim to them can be overlooked.
The Government considers that the Commissioner (Appeals) has not committed any error while passing Order-in-Appeal - revision application dismissed.
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2017 (9) TMI 1784
CENVAT credit - expenses incurred to avail input service - eligible to credit or not - sub-section (7A) in Section 11A of CEA - Held that:- Perusal of sub-section (7A) of Section 11A and the scheme thereof indicates that a proceedings can be initiated under that section for a particular period for which show cause notice was issued but not for other period. Each period being recognized by law separately for adjudication on its own facts, there cannot be compendium approach by adjudicating authority making a summary approach to act at his will and pleasure - appeal allowed.
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2017 (9) TMI 1783
Communication/service of order - Section 37C of the Central Excise Act, 1944 - condonation of delay in filing appeal - applicant submitted that the order-in-appeal dated 14-11-2007 was forwarded by the Department on 11-11-2016 and considering such date as the date of receipt of the order-in-appeal, the present appeal was filed within the stipulated time limit - Held that:- As per provisions of Section 35C ibid, ‘speed post’ is not the prescribed mode of sending of the decision, order, etc.
In view of the settled position of law, since the impugned order has not been communicated in the manner prescribed in statute, the same should not be construed as proper communication and in absence of proper substantiation by Revenue regarding the date of receipt of the impugned order as claimed by the applicant, should be considered as the appropriate date for the purpose of computation of the limitation period - thus, the interest of justice demands that 11-11-2016 should be considered as the date of communication of the impugned order and since the appeal was filed before the Tribunal on 7-2-2017, the same is within the stipulated time as prescribed in Section 35B ibid.
There is no delay in filing appeal - Registry is directed to accept the appeal papers and assign the appeal number to the appeal filed by the applicant - appeal restored.
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2017 (9) TMI 1774
Supply of instrumental cables to Mega Thermal Power Plant being set up by M/s. NTPC and M/s. Jindal Power Ltd. - Notification No. 6/2006-C.E., dated 1-3-2006 - period of dispute is April, 2007 to December, 2010 - covered by project import concession or not? - Held that:- The identical issue has come up before the Tribunal in the assessee’s own case KEI INDUSTRIES LIMITED VERSUS CCE, JAIPUR-I [2016 (7) TMI 1221 - CESTAT, NEW DELHI], where it was held that an identical dispute was the subject matter of recent decision of the Tribunal in the case of M/s Paramount Communication Ltd. vs. CCE, Jaipur [2016 (7) TMI 863 - CESTAT NEW DELHI] wherein it was held that appellants are eligible for exemption under N/N. 6/2006 - appeal dismissed - decided against Revenue.
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2017 (9) TMI 1766
CENVAT Credit - various input services - commission agent service - advertising agency service - courier service - membership of subscription service - cleaning service - renting of immovable property services - insurance of vehicles used within the factory.
Commission agent service - advertising agency service - courier service - membership of subscription service - Held that:- Tribunal in the case of the appellant itself INDO ALUSYS INDUSTRIES LIMITED VERSUS C.C.E., ALWAR [2016 (7) TMI 363 - CESTAT NEW DELHI] has allowed the Cenvat benefit on the taxable services i.e. commission agent service, advertising agency service, courier service and membership of subscription service - credit on these services allowed.
Cleaning service - renting of immovable property services - Held that:- The said services were utilized in the head office of the appellant. Since, those services were not in connection with the manufacture of the final product in the factory, such services should not fall under the scope and ambit of ‘input services’ for availment of Cenvat credit - credit not allowed.
Insurance of vehicles used within the factory - Held that:- The appellant had not produced any document to show that service tax has been paid for insuring the vehicles used within the factory. Thus, in absence of such substantiation, the Cenvat credit cannot be extended on the insurance service - credit not allowed.
Appeal allowed in part.
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2017 (9) TMI 1755
Utilization of CENVAT Credit - change in classification of service from Management Consultant Services to Business Auxiliary Services/Business Support Services? - Held that:- Identical issue decided in the case of M/S PIEM HOTELS LTD, THE INDIAN HOTELS COMPANY LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, COMMISSIONER OF SERVICE TAX [2016 (4) TMI 290 - CESTAT MUMBAI], where it was held that the proceedings for change of classification at the service providers end were initiated in 2011 and concluded vide Order-in-Original dated 25-2-2015. Such change in classification was held as not affecting the credit already availed by the service recipients prior to the said date and thus, the credit cannot be denied.
Credit allowed - appeal dismissed - decided against Revenue.
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2017 (9) TMI 1742
Rejection of Refund claim - whether the appellant can take, utilise Cenvat Credit during the month subsequent to the months in which these were available when the appellants are availing exemption benefit under N/N. 32/99-CE?
Held that:- On plain reading of Para 2B of N/N. 32/99-CE, it is clear that the manufacturer would utilise the whole of Cenvat Credit first and thereafter will pay the amount by cash which would be refunded - In the present case, the appellant had not utilised the credit first which was retained by them. Hence, the order of the Adjudicating Authority for recovery of the said amount is justified.
Appeal dismissed - decided against appellant.
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2017 (9) TMI 1736
Delay of 1731 days in fling appeal - Limitation Act - no satisfactory reason given for condonation of delay - case of appellant is that it came to know about the dismissal of its appeal on account of non-compliance only when other appeals were decided by the Tribunal - Held that:- No satisfactory explanation has been furnished by the assessee for such an inordinately long delay. Learned counsel for the assessee has also not been able to justify such a long delay in filing the appeal in this Court.
The question regarding whether there is sufficient cause or not, depends upon each case and primarily is a question of fact to be considered taking into totality of events which had taken place in a particular case - According to the assessee, it came to know about the dismissal of its appeal on account of non-compliance only when other appeals were decided by the Tribunal. This is not a sufficient ground for condoning the delay.
Delay cannot be condoned - Application for condonation of delay is dismissed
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2017 (9) TMI 1723
Whether the bought-out goods are eligible for exemption under Notification No. 22/2003?
Held that:- The appeal is of the year 2009 and it has been pending before the Tribunal. Ahead of the transition of Indirect Tax to GST, this Tribunal has been given a mandate to dispose of all old cases - it would be appropriate and prudent to close the file for the purpose of statistics - the appeal is disposed as file closed.
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2017 (9) TMI 1722
Method of Valuation - appellant had supplied paint and also has undertaken the painting contract - to be valued under the provisions of Rule 8 of Central Excise Valuation Rules or following Rule 11 of the Valuation rules? - Held that:- Identical issue decided in the case of M/S COROMANDEL PAINTS LTD. VERSUS CCE & CC, VISAKHAPATNAM [2016 (6) TMI 1018 - CESTAT HYDERABAD], where it was held that since the application of paint contains labour costs, the assessable value is to be determined under Rule 11 only after deduction of the value of labour component from the total value for supply and apply.
Penalty - Held that:- The period involved in these appeals in question is prior to the date when the order was passed by the Tribunal and appellant would have had a bonafide belief in continuing to discharge of central excise duty based upon understanding of Rule 8 of Central Excise Valuation Rules - penalty set aside.
Appeal allowed in part.
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2017 (9) TMI 1718
Valuation - related party transaction - case of Department is that one Shri Manish Dhanuka was a common Director in both the companies, namely, assessee- Appellants and M/s Dhanuka Laboratories Ltd., so it was presumed that both are related persons and that is why goods were sold at a lower price to M/s Dhanuka Laboratories Ltd.
Held that:- Hon’ble Supreme Court in the case of Alembic Glass Industries Ltd. vs CCE, [2002 (4) TMI 75 - SUPREME COURT OF INDIA], has observed that if Directors are common in two different Companies, then they may not be considered as the ‘related persons’ - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1717
CENVAT Credit - MS angle, Channels, Plates, TMT Bars which has been used for fabrication of support structures for various machines including pollution control machinery - denial of credit on the ground that these are not supporting structures nor capital goods as per Rule 2 (k) or Rule 2 (a) of the CCR - Held that:- The appellants have correctly availed the Cenvat credit on the items in question - reliance placed in the case of M/S J.B. DARUKA PAPER LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, LUCKNOW [2017 (9) TMI 448 - CESTAT ALLAHABAD], where it was held that Cenvat credit on that part of the HSD Bars, TMT Bars & MS Bars is also admissible which have gone into making of civil foundation to erect capital goods in the present case - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1712
Benefit of concessional rate of duty - sale of cement - cement sold to the agencies on MRP basis, but in some cases selling directly to the consumers which includes the Government agencies, builders, institutions and individuals - export to Nepal - Held that:- Appeal(s) are admitted.
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2017 (9) TMI 1702
Pre-deposit - Doctrine of Merger - Recall of order - appeal rejected on account of non compliance of the directions for deposit of the amount contemplated under Section 35F of the Act - Whether the CESTAT was justified in rejecting the recall application by declining to recall the order dated 10.01.2006 and to adjudicate the appeal on merits despite the appellant having deposited the entire amount of duty of ₹ 56,06,662/- in view of section 35F of the Central Excise Act, 1944?
Held that:- Section 35F of the Act provides that the person desirous of appealing against the order imposing duty or penalty has to deposit with the Adjudicating Authority the duty demanded or the penalty imposed. However, where in any particular case, the Appellate Tribunal is of the opinion that the deposit of duty demanded or the penalty levied would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose to safeguard the interests of the revenue.
It is not possible to accept the submission of learned Senior Counsel for the appellant that the order dismissing the Appeal should be recalled and the Appeal should be heard on merits since M/s Sameer Ispat has now deposited the entire amount of duty. The order passed by the Division Bench in SAMEER ISPAT VERSUS COMMISSIONER OF CENTRAL EXCISE [2015 (1) TMI 713 - ALLAHABAD HIGH COURT] filed by M/s Sameer Ispat has attained finality. If the Appeal could not be heard after the deposit of amount of ₹ 5 lacs, there is no good reason as to why it should be heard after deposit of certain additional amount.
Appeal dismissed - decided against appellant.
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2017 (9) TMI 1691
CENVAT Credit - Tippers - composite service - Held that:- Tribunal held that the service tax paid under the BAS by considering the total service of the assessee as a composite service, essentially made the assessee eligible to CENVAT Credit claimed on tippers - the findings rendered by the Tribunal do not generate any substantial question of law for interference by answering it in favour of the Revenue - appeal dismissed - decided against Revenue.
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2017 (9) TMI 1690
CENVAT Credit - whether the appellant, a manufacturer of sugar and molasses and also having a distillery division, whether Cenvat credit have been rightly denied? - Benefit of N/N. 67/95-CE - SCN contents that rectified spirit is manufactured in between the process to manufacture denatured spirit and rectified spirit does not find place in Central Excise Tariff with effect from 01.03.2005 and therefore CENVAT credit is not admissible as inputs & input services and capital goods going into manufacture of rectified spirit.
Whether ethyl alcohol and rectified spirit are two different commodities or one and the same commodity?
Held that:- The ethyl alcohol and rectification spirit are one and the same - rectified spirit which is not used for human consumption is nothing but ethyl alcohol and is finding place in tariff item no. 22072000 - SCN not sustainable.
Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1680
Refund claim - unjust enrichment - liability of duty on RCC Poles - Section 12(B) of the Central Excise Act, 1944 - After considering various decisions and by observing that the poles are the property of TNEB, and not sold to any other person, the Commissioner of Central Excise (Appeals), held that TNEB is not a manufacturer of RCC poles, and that there is no question of unjust enrichment, when the poles were cleared for their own use. However, the appellate authority held that TNEB would be entitled to refund of duty paid through Personal Ledger Account only, and no refund can be given, in respect of duty paid, through Modvat Account, as TNEB is not the manufacturer.
Held that:- Question, as to whether, incidence of duty, paid by TNEB, has been passed on to the customers, arises if only there is any transaction to that effect. TNEB is not a manufacturer of RCC poles and the same have been used by them. When the Revenue has not produced any evidence to prove that there was any customer, who had purchased RCC poles from TNEB, we fail to understand, as to how, the theory of unjust enrichment, can be applied to the case on hand.
Whether, TNEB was a manufacturer of RCC poles and whether there was any transaction with a customer, on facts, have been concurrently held against the revenue. On the material on record, findings of fact, by the appellate authority and the Tribunal, cannot be considered as perverse - Appeal dismissed - decided against Revenue.
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2017 (9) TMI 1673
Admit on the substantial questions of law nos.1 and 2 contained in the memo of appeal - there is no need to issue notice.
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2017 (9) TMI 1670
Maintainability of appeal - time limitation - appeal was dismissed on the ground that the same was filed beyond the period of limitation prescribed under Section 35 of the Central Excise Act, 1944. - Held that:- It is an admitted fact that due to inadvertence, the appeal was filed by the appellant in wrong forum. Since the appeal papers were not returned by the office of the Administrative Commissioner to the appellant and the same was considered for admittance by the office of the Commissioner (Appeals) for disposal, the provisions of Section 14 of the Limitation Act, 1963 can be invoked for condonation of delay, caused between the period of filing the appeal and transferring of the same to the office of the Commissioner (Appeals).
The dismissal of appeal by the Commissioner (Appeals) is not proper and justified - the matter should go back to the Commissioner (Appeals) for deciding the appeal on the basis of documents/records available before him - appeal allowed by way of remand.
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