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Central Excise - Case Laws
Showing 61 to 80 of 411 Records
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2017 (9) TMI 1545
CENVAT credit - manufacture of dutiable and exempt goods - non-maintenance of separate records - Held that: - the issue is no longer res Integra and has been settled by the judgment of Hon’ble High Court of Allahabad in the case of Balrampur Chini Mills Limited vs. CCE, Allahabad [2013 (1) TMI 525 - ALLAHABAD HIGH COURT] which held that bagasse arising in the course of manufacture of sugar cannot be treated as excisable goods, it continues to remain waste and it does not become manufacture of final product for the purposes of rule 6 of CCR, 2004 - Press Mud is also a waste product similarly emerging during the manufacture of sugar, molasses, therefore the same ratio will also be applicable to press mud - demand set aside - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1544
Validity of SCN - Time limitation - CENVAT credit - Held that: - I do not find any grounds of appeal relied on by Revenue to establish that the finding of learned Commissioner (Appeals) that the show cause notice under consideration is time barred in respect of demand of Cenvat credit of ₹ 14,72,924/- - credit allowed.
CENVAT credit - sales commission - N/N. 02/2016-CE(NT) dated 3rd February, 2016 - Held that: - sales promotion includes services by way of sale of dutiable goods on commission basis - credit allowed.
Appeal dismissed - decided against Revenue.
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2017 (9) TMI 1543
Pre-deposit - whether mandatory deposit of seven and half percent as per Section 35F (i) of the Central Excise Act 1944, is required to be paid in cash or the same can be paid from CENVAT Credit Account maintained by the appellants? - Held that: - It is observed from the provisions of Section 35F (i) that it is not specifically mentioned that amount has to be deposited only by way of cash payment - the view taken by the First Appellate Authority, that deposit under Section 35F (i) cannot be made from CENVAT Credit Account, is not the correct appreciation of law so long as the CENVAT Credit is permissible for utilisation as per Rule 3(4) of the CCR, 2004 - matter remanded to the First Appellate Authority with directions to decide the appeals on merits - appeal allowed by way of remand.
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2017 (9) TMI 1542
Clearances made to SEZ Unit developer - demand of duty - SCN was issued alleging that respondent being not a contractor of SEZ unit hence, not eligible for exemption from central excise duty, clearances cannot be treated as exports and the fact that he was not a contractor was suppressed from the Department - Held that: - the clearances made by the respondent to an SEZ unit are exports as per the provisions of the SEZ Act 2005 - Circular of CBEC dated 27.12.2006 relied upon, wherein it was clarified that all clearances made to SEZ developer and SEZ co-developers are deemed to have been treated as exports as per Section 2(m) of the SEZ Act 2005.
As regards the claim of the Revenue that respondent has not followed the procedure of ARE-1, it was held that non-preparation of ARE 1 is a condonable procedure lapse, if it is confirmed that goods are exported - There is no dispute as to the fact that the respondent had shown the clearances made to SEZ unit as clearances without payment of duty in the monthly returns.
Appeal dismissed - decided against Revenue.
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2017 (9) TMI 1541
Entitlement of interest - interest on abated duty - interest for delayed payment - Held that: - the duty paid by the appellant in terms of Pan Masala Packing Machines (Capacity determination and collection of Duty) Rules, 2008 is required to pay in advance which appellant fail to do so, therefore, the interest is correctly paid by the appellant. Although, the abatement claims have been filed for that period, the appellant is not entitled to claim interest on the abated amount as there is no such provision.
Interest for delayed refund - Held that: - the appellant is entitled for interest after three months from the date of filing of refund claim and till the date of sanctioning refund.
Appeal allowed - decided partly in favor of appellant.
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2017 (9) TMI 1540
CENVAT credit - receipt of defective goods back into their factory - Rule 16 of CER, 2002 - It appeared to revenue that appellant was receiving broken pieces packed in bags and the same were not be eligible for Cenvat credit under the said Rule 16 of the said Rules - Held that: - Cenvat credit was admissible to the appellant - the SCN has also mentioned that the issue is recurring in nature and SCN have been issued time to time - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1490
Refund claim - quantity discount given to their wholesale dealers as an incentive, by way of credit notes - whether the impugned refund claims against quantity discount given by respondent are eligible for refund? - unjust enrichment - CBEC circular No. F-354/81/2000 (TRU), dated 30.06.2000 - Held that: - as per CBEC guidelines, if the discount is declared on price and actually passed on to the buyer goods, as per common practice, it will not form part of the transaction value eg. quantity discount. However, the nature and quantum of discount should be known at the time of sale of the goods and further they should have actually been passed on to the buyers goods. The circular also takes into account the practice of year end discount, however, in such cases the transactions have to be assessed on a provisional basis - it emerges that the quantity discount was offered by respondents to all wholesale dealers, but the quantity and amount would vary from party to party and area to area as agreed, before lifting the material - the nature of quantity discount, albeit given post clearances, was very much known to the buyers of the respondent - the impugned orders upholding the claim for refund of quantity discount, on merits, is sustained.
Unjust enrichment - Held that: - The ratio laid down by Apex Court in the case of CCE Madras vs. Addison & C. Ltd. [2016 (8) TMI 1071 - SUPREME COURT] was that trade discounts shall not be disallowed only because they are not payable at the time of each invoice or deducted from the invoice price and that when turn-over discount is known to the dealer at the time of clearance, assessee is entitled for filing a claim for refund, on the basis of credit notes raised by them towards turnover discounts - the impugned orders which have held that sanction of refund to respondents do not amount to unjust enrichment, cannot be sustained and required to be set aside.
Appeal allowed - decided partly in favor of Revenue.
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2017 (9) TMI 1489
Classification of goods - Refined Palm oil, Refined Palm Stearin etc - whether classified under CETH 3823 1900 or under CETH 1511 9090? - Held that: - Since impugned Palm Stearin is Refined, Bleached and Deodorised (RBD) and sold for industrial use, it will then be classified under specific sub heading in 3823 11 12 - RBD Palm oil stearin when used as an industrial monocarboxolic fatty acid/acid oil, sold for industrial use, would then necessitate their classification under 3823 1112 - demand upheld.
Penalty - Held that: - there was some amount of confusion which led to considerable litigation on the issue. Even in respect of imported Palm Stearin, there was a debate on classification - imposition of penalties is a overkill and is set aside.
Appeal allowed - decided partly in favor of appellant.
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2017 (9) TMI 1488
Penalties - SSI exemption - clubbing of clearances - case of appellant is that Relevant documents were not made available to the appellants and the direction given by the Tribunal has not been followed - natural justice - Held that: - this is a unique and peculiar case where the appellants on record have mentioned time and again that all the documents had been burnt out during Godra Riots. When there were Riots in the city, their factory was robbed and burnt on 27.02.2007. Therefore, the appellants had made a request to the Revenue for supplying copies of relied upon documents so that they could properly represent their cases - When this is a unique case where relied upon documents are not available either with the Revenue or with the appellants, we are unable to understand how could the proceedings progress and the liability of duty of Central Excise and the penalties against the appellants be sustained.
The Hon’ble Gujarat High Court in the case of CCE & C. Vapi vs Tuni Textile Mills Ltd. [2006 (1) TMI 51 - HIGH COURT GUJARAT] observes that when assessee is not provided with copies of all relied upon documents by the Revenue, the proceedings against the assessee have rightly been set aside by the Tribunal on the ground of denial of natural justice.
Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1487
Classification of goods - clearance of final product Palm Stearin - It is the case of the Revenue that the appellant had improperly availed the benefit of notification by mis-declaring final product as edible palm oil while the product would as to RBD Palm Stearin falling under Chapter 38 - Benefit of N/N. 03/2006-CE dated 01.03.2006 - Held that: - appellant had in fact recorded the clearances and indicated the same in their monthly returns as to availment of benefit of notification - the appellants could have entertained a bona fide belief as to the classification of the product RBD Palm Stearin will be covered under Chapter 15, seems to be correct as during the relevant period, various decisions of the Tribunal indicated that the classification of RBD palm stearin is under Chapter 15 - the plea of limitation as raised by the appellant has to be answered in their favor.
Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1486
Classification of goods - Fairplus Herbal Face cream - Fiar plus face lotion - Revenue is seeking their classification under CETA 3304.00 as cosmetic preparation for care of the skin - Claim of the assessee is that these products are Ayurvedic Medicinal preparations classifiable under CETA, 3003 - Reliance placed in the case of Commissioner of Central Excise, Mumbai IV Versus M/s. Ciens Laboratories, M/s. Time Pharma [2013 (8) TMI 467 - SUPREME COURT], where The prescription of the Apex Court is that is used in curing or treating ailments or diseases and contains curative ingredients even in small quantities is to be classified as medicaments - It is fairly well established that the products contain several ingredients which serve the purposes of curing conditions such as, dilated veins (Varicose veins), sun burn, inflammation and rashes etc. Hence, they have been used for therapeutic and prophylactic purposes. Thus, both the products satisfy the test prescribed by the Apex Court - the products in question merit classification under Chapter 30 - appeal dismissed - decided against Revenue.
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2017 (9) TMI 1485
Refund of amount paid u/r 6 of the CCR, 2004 - whether the respondent is entitled to the refund of the amount prior to the insertion of explanation in Rule 8(4) of Central Excise Rules, 2002? - Held that: - explanation was inserted in Rule 8(4) of Central Excise Rules, 2002 by Notification No.8/2007-CE (NT) dt. 01.03.2007. Therefore, the respondent is not entitled to the refund of the amount for the period from 03.01.2007 to 28.03.2007 - the respondent is not eligible to refund prior to 01.03.2007 - appeal allowed - decided in favor of Revenue.
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2017 (9) TMI 1484
Rectification of mistake - appellant submits that the Revenue filed the appeal against the portion of the refund claim of ₹ 10,40,192/-, which was paid from the Proforma Credit and Modvat Credit account and which was allowed by the Commissioner (Appeals). But the Tribunal vide Final Order had remanded the matter for the entire refund claim of ₹ 20,87,729/- - Held that: - as the Tribunal remanded the matter to the Commissioner (Appeals) in respect of Refund of ₹ 10,40,192/-, it is appropriate, that the Commissioner (Appeals) would examine the contention of the appellant as stated in the Rectification of Mistake application - ROM application allowed.
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2017 (9) TMI 1483
Penalty u/s 11AC - Clandestine removal - Held that: - there is a requirement to establish fraud, collusion, contravention of Rules with an intent to evade payment of duty etc., to invoke penal provisions u/s 11 AC of the CEA, 1944 - In any event, there is no material available on record of fraud, collusion etc. to impose penalty u/s 11 AC of the Act, 1944 - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1482
Clandestine removal - shortage of stock - pig-iron - C.I. scrap - demand on the ground that the said inputs not used in or in relation to the manufacture of finished goods - Held that: - the shortage of the goods was admitted and therefore, the demand of duty alongwith interest is justified. But there is no material of clandestine removal of goods and the penalty u/s 11 AC of the Act cannot be invoked - demand of duty alongwith interest is justified - penalty set aside - appeal allowed - decided partly in favor of appellant.
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2017 (9) TMI 1481
Input/input services used in manufacture of exempt goods - violation of Rule 6 (3) (i) of the Rules, 2004 - whether invocation of Rule 15 (2) of CCR, 2004 justified? - Held that: - there is no dispute that the appellant paid the amount alongwith interest which was appropriated by the Adjudicating Authority - there is no doubt that the appellant is required to fulfill the obligations under Rule 6 of the Rules, 2004, but it is required to establish the fraud, collusion, intention to evade payment of tax etc. in order to invoke penal provisions under Section 11AC of the Act, 1944 - there is no material on record of such ingredients as specified under Section 11AC of the Act, 1944 - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1480
Clandestine removal - burden of proof - Held that: - It is well settled law that the charge of clandestine removal, the burden lies on the department - the clandestine activities cannot be established on the basis of theoretical input-output ratio, without tangible and positive evidence.
The respondent had given explanation before the Commissioner (Appeals) for such alleged different of input-output ratio. They have also submitted the process flow chart to justify the various losses - appeal dismissed - decided against Revenue.
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2017 (9) TMI 1479
100% EOU - Liability of interest - Section 11AB of the CEA, 1944 - delay in payment of duty - Held that: - there is no dispute that the appellant was required to pay duty on DTA Sales from 01.10.2003 to 15.12.2003. Out of this amount of ₹ 69,17,090/- was paid on 18.12.2003. By letter dated 24.06.2004, they requested the Customs Department to debit the balance amount of duty against their outstanding duty liability for the months of October & November, 2003 - the demand of interest u/s 11AB is linked with the determination of duty u/s 11A of the said Act. Therefore, the demand of interest with duty is justified.
Penalty - Held that: - the appellant deposited the entire duty on DTA Sales. The appellant had discharged the duty liability under Rule 8 of the Central Excise Rules, 2002 on monthly basis - penalty to be set aside.
Appeal allowed - decided partly in favor of appellant.
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2017 (9) TMI 1478
CENVAT credit - input services - credit was not distributed by their Head Office, for which it was utilized - Held that: - it is clearly evident that the appellant had taken the credit in 2005 and utilized the same in 2006 after the invoice date - it is clearly established that even the appellant has taken the credit before issuance of the ISD invoice which was not utilized by them. On the other hand, it is apparent on the face of the records that the credit was utilized after receipt of the ISD invoice - demand set aside - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1477
Pre-deposit - whether mandatory deposit of seven and half percent as per Section 35F (i) of the Central Excise Act 1944, is required to be paid in cash or the same can be paid from CENVAT Credit Account maintained by the appellant? - Held that: - provisions of section 35 does not specifically mentioned that amount has to be deposited only by way of cash payment - the view taken by the First Appellate Authority, that deposit u/s 35F (i) cannot be made from CENVAT Credit Account, is not the correct appreciation of law so long as the CENVAT Credit is permissible for utilisation as per Rule 3(4) of the CCR, 2004 - appeal filed by the appellant is allowed by way of remand to the ld. Commissioner(Appeals) to decide the appeal on merits without insisting on any further pre-deposit - appeal allowed by way of remand.
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