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Central Excise - Case Laws
Showing 81 to 100 of 411 Records
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2017 (9) TMI 1476
Power of remand - whether the Commissioner (Appeals) has no power of remand as the said power was taken away by the amending Section 35A of the CEA, 1944, w.e.f. 11.05.2001? - Held that: - the Order-in-Appeal dated 09.03.2011 has attained finality due to non-filing of appeal by the Revenue against that order. Therefore, Revenue is prohibited from contesting the issue in other proceedings - Since the Revenue has not preferred any appeal against the said order, the order has attained finality and there cannot be any subsequent order - appeal dismissed - decided against Revenue.
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2017 (9) TMI 1475
Penalty u/s 11AC of CEA, 1944 - short levy/non levy - captive consumption - Held that: - Section 11AC of the Act, 1944 provides penalty for short levy or non-levy of duty in certain cases, where any duty of excise has not been levied or paid by reason of fraud or collusion or any willful mis-statement or suppression of facts with an intent to evade payment of duty etc - In the present case, there is no ingredient as specified in Section 11AC for imposition of penalty. The mere failure to mention the Notification No. in ER-1 Return, cannot be treated as suppression of fact with an intent to evade payment of duty unless, there are other materials available on record - penalty not warranted - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1474
CENVAT credit - inputs - inputs used in manufacture of dutiable finished products subsequently exempted from payment of duty - Held that: - the issue is no more res integra in view of the decision of the Larger Bench of the Tribunal in the case of HMT Vs. Commr. of Central Excise, Panchkula [2008 (10) TMI 54 - CESTAT, NEW DELHI], where it has been held that when the input credit legally taken and utilized on the dutiable final product, need not be reversed on the final product becoming exempt - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1473
CENVAT credit - manufacture of taxable as well as exempt goods - Rule 6 (3)(b) of the CENVAT Credit Rules, 2004 - emergence of iron ore fines in the process of manufacture of sponge iron - Held that: - appellants are using iron-ore as a raw material. The iron-ore is an non-excisable commodity. They manufacture Sponge Iron which is a dutiable commodity, and during the course of manufacture of Sponge Iron, iron-ore fines emerge. Such iron-ore fines have been held to be non-excisable commodities, inasmuch as no manufacturing process is involved and the said iron-ore fine emerges as a waste product during the process of manufacturing the Sponge Iron - reliance placed in the case of Union of India & Others Versus M/s. Hindustan Zinc Ltd. [2014 (5) TMI 253 - SUPREME COURT] - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1435
Inter-unit transfer of capital goods - CENVAT credit on capital goods shifted to another unit - penalty u/s 11 AC - Held that: - there is no dispute that the appellants transferred the capital goods to their sister unit. The appellant has not contested the issue that they should have reversed the credit, which they have done on detection - the other Unit was entitled to avail credit. Thus, it is difficult to observe that there was fraud or collusion or mis-statement etc. for inter-unit transfer of goods - penalty set aside - the demand of CENVAT Credit along with interest is upheld - decided partly in favor of appellant.
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2017 (9) TMI 1434
CENVAT credit - shifting of units and transfer of credit - Rule 10 of the CCR, 2004 - Held that: - On plain reading of Rule 10(1) of CCR, 2004, it is clear that if a manufacturer of the final product shifts his factory to another site, shall be allowed to transfer the Cenvat Credit lying unutilized in his accounts - the Adjudicating Authority examined the transfer of credit in details as permitted under Rule 10 of the Cenvat Credit Rules, 2004. The appellant categorically contended that they have not availed any credit on capital goods as revealed from the records. Therefore, the allegation against the appellant is without any substance - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1433
Maintainability of appeal - proviso (a) of Section 35B of the Central Excise Act, 1944 - Held that: - the case is related to loss of petroleum products on storage and the order is passed by the Commissioner (Appeals). In view of the above provisions, the appeal should not lie before this forum as the Tribunal does not have jurisdiction to decide this appeal - appeal dismissed being not maintainable.
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2017 (9) TMI 1432
Clandestine removal - penalty - Held that: - the seized documents were found from the factory premises of the appellant. In reply to show cause notice, it is stated that after roasting the Bidis, they are labelled with different brands and are recorded as labelled Bidis in the RG-12A Register and are cleared from the factory on payment of duty. It is stated that total unlabelled Bidis are recorded in their RG-12A Register as unlabelled Bidis and tax is paid on said unlabelled Bidis after roasting and branding. I find that the statement made by the appellant in reply to the show cause notice is without any substance. It is noticed that the appellant had not filed any reconciliation statement on the basis of the quantity as shown in the seized documents and the clearance of the goods as mentioned in the RG-12A Register.
Penalty on manager and accountant - Held that: - they are the employees of the appellant firm and acted on the instructions of the Managing Partner of the appellant firm. There is no material available on record for imposition of penalty on Md. Serajul Haque and Shri Mihir Singha, employees of the appellant firm and the penal provisions cannot be invoked against them - the Managing Partner, Md. Jalaluddin Biswas had been directly involved in the clandestine removal of the goods. It is found that Md. Jalaluddin Biswas had admitted in his statement that the entire activities of the appellant firm is controlled by him. Therefore, the imposition of penalty is justified.
Amount of penalty reduced - decided partly in favor of appellant.
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2017 (9) TMI 1431
CENVAT credit - common input services for finished goods as well as trading activities - whether the appellant is required to reverse the Cenvat credit availed on three common input services which are utilized for discharging duty liability on the finished goods as well as for trading activities? - time limitation - Held that: - even prior to 01.04.2011 trading activity has to be considered as exempted services is the law settled as on date; and even extended period can be invoked in such a situation wherein demands are raised. In view of this on the question of merits as also on limitation, the appeal fails.
As regards computation of the demand on duty which has been confirmed by the adjudicating authority as 13, 62,622 which has been partly paid, the adjudicating authority should reconsider the computation based upon the explanation Rule 6(3D)(C) of the Cenvat Credit Rules, 2004, in its correct perspective and arrive at the exact amount that needs to be reversed by the appellant.
Appeal allowed by way of remand.
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2017 (9) TMI 1430
Clandestine removal - Held that: - the Chartered Engineer's Certificate produced by the appellant before the adjudicating authority, the claim was that there cannot be any weight gain instead there would be weight loss on use of oil during texturizing process; whereas, their present report of SASMIRA acknowledges weight gain in the range of 0.2 to 0.5%.
Weight gain in the range of 0.2% to 0.5% the aforesaid statements definitely has evidentiary value and could be used as corroboration to the expert's evidence. Even if the weight gain at the lowest of the range i.e. 0.2%, mentioned in the opinion dt. 12.05.2017, is considered, then also some removals would be there without payment of duty - to arrive at the exact quantum of clearance without payment of duty, applying the weight gain as 0.2%, the matter needs to be remanded to the adjudicating authority to quantify the demand - appeal allowed by way of remand.
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2017 (9) TMI 1429
Classification of goods - extended period of limitation - Held that: - the appellant has argued that since all the facts relating to clearance of left over materials disclosed in filing the relevant GP-1s alongwith monthly RT-12, therefore, no suppression of fact could be attributable for failure on their part to correlate between the GP-1 against which duty was paid initially on the machine and the GP against which subsequently left over parts/ components had been cleared by them - there is no suppression of facts, accordingly, the demand relating to left over material invoking extended period of limitation is set aside and consequently the penalty imposed on the appellant is also set aside - appeal allowed in part.
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2017 (9) TMI 1428
Demand - the appellant units had processed stock of sarees with the aid of power attracting duty of Central Excise - Held that: - there was no machine to be used with the aid of power for the process of dyeing found installed in the premises of appellant No. 1 (M/s Rajkamal Textiles Printery). When it is so the Revenue's basic premise that the appellant M/s Rajkamal Textiles Printery carried out the process of dyeing of fabrics on five Jigar machines running with electric motors does not stand to the required scrutiny. Therefore, it appears that the proceedings initiated against the appellant No. 1, M/s Rajkamal Textiles Printery by issuance of SCN No. 58/2003 dated 28.02.2003 cannot pass the scrutiny under the law of Central Excise. However considering the fact that the impugned order did not consider certain evidences like photographs, videography record as pleaded by appellants, we are not giving any further observations on this - matter on remand.
There is no dispute on the fact that the premises of M/s Madhuri Print had physical installation of said five Jigar Machines. However the appellant No. 2 - M/s Madhuri Print submits that though five dyeing machines (Jigar machines) were available in their factory they were actually getting dyeing process undertaken through outside workers. The appellant No. 2 argues that their bills in this regard were not taken into consideration - matter on remand.
Appeal allowed by way of remand.
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2017 (9) TMI 1427
Clandestine removal - the Revenue's case is primarily and mainly based upon the entries made in the "Private Gate Passes" and the "Outgoing Material Register" - Held that: - Admittedly, such entries contained all the relevant particulars concerning the removal of the goods. The "Private Gate Passes" prepared by the appellant indicate all the particulars required to be indicated in the Central Excise Invoices/Gate Passes. The Managing Director of the appellant-Company, in his initial statement has admitted that such gate passes stand used by them for removal of their final product without reflecting the same in their statutory records - even though the first statement was subsequently retracted by Shri Ashok Saraf but such retraction is of no consequence as Shri Ashok Saraf himself in his subsequent statement admitted the initial facts disclosed by him in his first statement and also submitted that retraction may be considered to be of no consequence - the duty demand stands raised on the basis of the unaccounted and unexplained excess raw material is not factually correct. The reference to the unaccounted raw material is only with an intention to corroborate the allegation and charge of clandestine manufacture and removal of the final product.
Even though, the charges of clandestine removal are required to be established by the Revenue by production of, sufficient tangible evidences but the acceptance of such evidences, depends upon the facts of each and every case. In my view, the appellant having not challenged and contested the entries made in the private records which stand corroborated by the recipient of the goods along with fact of findings of unaccounted excess raw materials inspire confidence in the Revenue's case - duty demand upheld.
Penalties - Held that: - the same are on the lower side and require no interference by the Tribunal. Similarly, penalty imposed upon Shri Ashok Saraf is proper and appropriate inasmuch as, the entire evidences on record lead to the factum of involvement of the Managing Director in such clandestine activities of the manufacturing Unit.
Appeal dismissed - decided against appellant.
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2017 (9) TMI 1426
Benefit of reduced penalty u/s 11 AC of the CEA, 1944 - duty demand paid within 30 days of the date of order-in-original and the interest and 25% of penalty was paid thereafter within 10 days - Held that: - the adjudicating authority has to mention in the order that such an option is available to the appellant to pay reduced penalty of 25% if the duty demand, interest and reduced penalty is paid within 30 days of communication of the adjudication order - the impugned order can be modified to the extent of reducing the penalty to 25% without disturbing the demand of duty or interest - appeal allowed in part.
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2017 (9) TMI 1425
SSI exemption - use of Brand name - Revenue has contended that mere addition of letters ‘T', R', 'C' or ‘A' to the trade name "ASOKA" is merely an internal arrangement amongst the registered partners etc. and that does not qualify them to avail SSI exemptions - Held that: - the respondent will be entitled to use the brand name "ASOKA" with the suffix 'R' to the territory allotted to them, since such a brand name is used by the respondent only after proper assignment on dissolution of the parent firm - the respondent has not used the brand name of another person so as to incur the mischief of para 4 of the SSI notifications - the decision in the case of Commissioner of Central Excise, Delhi I Versus M/s. BONNE Care Pvt. Ltd. (Vice-Versa) [2016 (8) TMI 33 - CESTAT NEW DELHI] followed - appeal dismissed - decided against Revenue.
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2017 (9) TMI 1424
CENVAT credit - capital goods which were used in the mining area - SCN were issued alleging that tyres for dumpers and dumpers do not qualify to be capital goods - Held that: - issue involved in this case was initially decided by the Division Bench of the Hon’ble Supreme Court in the case of Vikram Cements vs. Commissioner of Central Excise, Indore [2006 (2) TMI 1 - Supreme court], where it was held that Modvat/Cenvat credit on capital goods used in such mines will not be available to the concerned assessee under the appropriate Modvat/Cenvat Rules - the matter is remanded to the Adjudicating Authority to decide in the light of the above decision - appeal allowed by way of remand.
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2017 (9) TMI 1423
CENVAT credit - duty paying invoices - denial on the ground that the ISD issued the invoices in respect of GTA services and other input service during the period July, 2009 to March, 2010 which has not been received by the Kolkata unit of the appellant - Held that: - There is no allegation of violation of Rule 7 of Cenvat Credit Rules, 2004. Rule 7 of CCR, 2004 provides manner of distribution of credit by ISD - Hon’ble Karnataka High Court in the case of ECOF Industries Pvt. Ltd. [2011 (2) TMI 1130 - KARNATAKA HIGH COURT] held that credit cannot be denied on the ground that the input services were not used or received in relation to manufacture of Kolkata Unit - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1422
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: - in Section 35, 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 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 First Appellate Authority with directions to decide the appeal on merits without insisting on any further pre-deposit - appeal allowed by way of remand.
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2017 (9) TMI 1376
Entitlement of interest - delayed refund of Excise duty - Section 35FF of the Central Excise Act, 1944 - Held that: - A composite reading of unamended Section 35FF and amended Section 35FF of the Act reveals that in respect of an amount deposited prior to the commencement of the Finance Act No. 25 of 2014, interest on the refunded amount is payable only if it is not refunded within three months of the communication of the order of the appellate authority entitling the refund and that too after the expiry of three months of the communication of the order.
In the present case, the amount was deposited on 24.04.2014 and 28.04.2014, the appeal entitling the refund was allowed on 03.08.2016 and the refund was actually made on 28.11.2016 - All the aforesaid dates are earlier to 06.08.2016, the date of enforcement of Finance Act No. 25 of 2014. Thus, in view of the proviso to the amended Section 35FF of the Act, the payment of interest to the petitioner would be governed by the unamended Section 35FF of the Act.
The application for refund was moved by the petitioner on 05.09.2016 and therefore, in the absence of any date of communication of the order, the date of the application would be recognized as the date of communication of the appellate order.
There is no merit in this petition to direct for payment of any interest on the amount refunded in the absence of any specific provision providing for payment of interest for the entire period, the amount had remained in custody of the Revenue - petition dismissed - decided against petitioner.
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2017 (9) TMI 1375
Demand of interest - Rule 14 of the CENVAT Credit Rules, 2004 read along with Section 11AB of the Central Excise Act, 1944 - reversal of CENVAT credit - manufacture of taxable as well as exempted goods - non-maintenance of separate set of books - Rule 6(3)(b) of the Cenvat Credit Rules, 2004 - Held that: - reliance placed in the case of Commissioner of Central Excise, Chennai - 4 vs. Sundaram Fasteners Limited [2014 (2) TMI 551 - MADRAS HIGH COURT], where it was held that Though Rule 14 contemplates that Cenvat Credit taken shall be recovered from the manufacturer along with interest the facts of the present case are slightly different as there was no allegation that there was intention on the part of the assessee to evade payment of duty by wrongly availing the credit - levy of interest is valid.
Whether CESTAT, Madras was right in setting aside demand and penalty? - Held that: - as per Section 73 sub-section (2) of the Finance Act, 2010, the assessee has to make an application to the Commissioner of Central Excise along with documentary evidence and a Certificate from the Chartered Accountant or a Cost Accountant, certifying the amount of input credit attributable to the inputs used in or in relation to the manufacture of exempted goods within a period of six months from the date on which the Finance Bill, 2010 received the assent of the President - Considering the fact that assessee had reversed the credit even prior to the amendment and the order of the Tribunal was in fact no different from what is contemplated under the Finance Act, 2010, this court held against the Revenue.
There is no manifest error, in the final order of the CESTAT, Madras, in setting aside the demand, and restricting the same only to interest - appeal dismissed - decided against Revenue.
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