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Central Excise - Case Laws
Showing 1 to 20 of 393 Records
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2018 (1) TMI 1734
Process amounting to manufacture or not (deemed manufacture) - after receiving the bottles of the medicines in the packets, appellant just affix the hologram & bar code to avoid duplicity and put in an outer cover box to ensure safe transportation - HELD THAT:- The purpose of “deeming” processes such packing, re-packing, labeling, relabeling etc. to be processes amounting to manufacture is to capture the value addition.
In the instant case, there is admittedly “no value-addition”. The goods are sold either at or below the MRP to the consumer. More importantly, the goods when received by the vendor are already in a pre-packed form, bear the necessary declarations including the MRP as prescribed by the provisions of the Legal Metrology Act and have already been subjected to excise duty on the basis of value determined under Section 4A i.e. the Retail Sale Price less abatement. The vendor neither re-labels nor alters the retail pack or the declarations affixed therein. Under these circumstances, the activity undertaken in the instant case merely consists of transferring pre-packed duty paid retail goods into another packing.
Thus, it is clarified that in such cases excise duty would not be attracted on the operations or processes carried out by the vendor.
There are no reason to sustain with the impugned order and the same is hereby set aside - the appeals filed by the assessee-Appellants are allowed.
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2018 (1) TMI 1715
Extended period of limitation - Short payment of duty - intent to evade tax - HELD THAT:- It is undisputed that the show cause notice invoked the extended period. That is beyond a normal period of one year. For the extended period to be invoked, there are certain pre-requisites and pre-conditions, which the Revenue has to satisfy in terms of the statutory provision, namely, section 11A of the Central Excise Act, 1944. The tribunal found from the factual matters that there were not one, but two audits and the second one was for the overlapping period. If during both, the Revenue could not trace out anything, which was held back by the assessee or was unable to unearth from the records the necessary materials to allege suppression, then, the invocation of the extended period was impermissible. There were no materials to indicate that there is any short payment of duty with intent to evade service tax.
Once there is no perversity in the order under appeal nor the same is vitiated by any error of law apparent on the face of the record, then, we are not obliged to entertain this appeal. There is no substantial question of law arising for consideration. Consequently, the appeal fails and it is dismissed.
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2018 (1) TMI 1690
Waiver of demand of reversal of Cenvat Credit - manufacture of cement - captive consumption - two units having separate Central Excise registrations known as unit I and II are owned by a common owner - HELD THAT:- Hon’ble Supreme Court in the case of MADRAS CEMENTS LTD. VERSUS COMMISSIONER OF C. EX., CHENNAI [2010 (7) TMI 179 - SC ORDER] has held that As regards the Modvat/Cenvat credit on capital, goods, if the mines are captive mines so that they constitute one integrated unit together with the concerned cement factory, Modvat/Cenvat credit on capital goods will be available to the assessee.
Further, the Tribunal in the assesee’s own case MAIHAR CEMENT UNIT NO. 2 VERSUS COMMISSIONER OF CENTRAL EXCISE, BHOPAL [2012 (8) TMI 840 - CESTAT NEW DELHI] has held that As such the mines which were allotted to Maihar Cement at the time of its incorporation and subsequently allowed to be used by the second entity, i.e., Maihar Cement Unit No. 2 has to be treated as captive mines for both the units.
There are no reason to interfere with the impugned order passed by the Commissioner (Appeals) - appeal dismissed - decided against Revenue.
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2018 (1) TMI 1689
Benefit of area based exemption - gold and silver unit (purchased by respondent) - N/N. 50/2003 dated 10.6.2003 - Departmental view is that area based exemption was never granted to the respondent and was never availed by the respondent. On the other hand, the respondent claim that it was availed and production was continued - HELD THAT:- It appears that the existing unit who is availing the area based exemption is entitled to add the new plant for the production of new products - In the instant case, the new product is the gold and silver bar. So, it is according to law - Further, the Board’s Circular No. 960/03/2012 dated 17.2.2012, is stating that the change of ownership or change of the factory premises does not de bar the unit to avail the area based exemption, that will continue.
The change of the ownership and change of the plot does not matter. The core issue is whether the gold unit which was purchased by the respondent was availing the area based exemption or not. Only for this limited purpose, the matter is remanded to the adjudicating authority to verify the same and decide the issue, by providing the reasonable opportunity to the appellant.
The appeal is allowed by way of remand.
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2018 (1) TMI 1686
Eligibility for simultaneous benefit under N/N. 30/2004 and N/N. 29/2004 (now 7/2012) - manufacturer and exporter of the cotton fabrics and cotton yarn - sold in the domestic market without payment of excise duty - period of dispute is October, 2014 to September, 2016 - HELD THAT:- Notification No. 29/2004 providing the concessional rate of duty and there is no condition prescribed in Notification No. 30/2004. The goods were fully exempted provided that no credit was taken on the input. The Notification No. 30/2004 is mainly applicable to the domestic sale. On the other hand, Notification No. 29/2004 is mainly related to the export.
From the Board’s Circular No. 795/28/2004-CX., dated 28-6-2004, it is clarified that the simultaneous benefit under the Notification Nos. 29 & 30/2004 can be availed provided the manufacturer is maintaining the separate books of account for goods availing for each notification. Further, the Circular No. 845/03/2007-CX. dated 10-2-2007 has clarified that in order to facilitate simultaneous availment of the two notifications, such manufacturers may be advised not to take credit initially and can take only proportionate input credit on input used in the manufacture of finished goods cleared by him on payment of duty.
It is clear that the appellant can avail the benefit of both the notifications simultaneously provided the condition laid down in each notification is satisfied.
Matter remanded to the original authority to see whether the assessee has satisfied the condition of each notification if so then simultaneous benefit may be allowed to the appellant but by providing an opportunity to the appellant - appeal is allowed by way of remand.
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2018 (1) TMI 1661
Cenvat Credit - Input Services - 2(l) of CCR - catering services - HELD THAT:- The issue has been decided in the case of CCE, NAGPUR VERSUS ULTRATECH CEMENT LTD., [2010 (10) TMI 13 - BOMBAY HIGH COURT] where it was held that all services used in relation to the business of manufacturing the final product are covered under the definition of `input service' and in the present case, the outdoor catering services being integrally connected with the business of the manufacture of cement, credit of service tax paid out on catering services has been rightly allowed by the Tribunal.
The questions proposed in the present appeal cannot be treated as substantial questions of law - Appeal dismissed.
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2018 (1) TMI 1633
Clandestine removal - Cigarettes - approval of Central Excise officer for removal of cigarettes - HELD THAT:- It appears that the appellant has started its manufacturing activity in the month of June, 2008 and search was conducted in the month of October, 2008. Cigarettes are excisable items where the representative of the Excise Department has the physical control as per the Central Excise law. Thus, the Central Excise officer is posted in the factory, so, no cigarettes can go outside without his approval. The statement of the personal incharge was recorded where they accepted that plane brand cigarette was manufactured. The department has not made out any investigation from the buyers. For the so-called clandestine removal, no investigation was made out. No attempt was examined for the consumption of raw material, electricity, manpower etc. Thus, there is no proof of clandestine removal of the goods.
Appeal dismissed.
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2018 (1) TMI 1630
Condonation of delay in filing appeal - Duty liability - parts of dumpers and others imported, further repacked and labelled by the appellant and sold - HELD THAT:- The civil appeal(s) is/are dismissed on the ground of delay.
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2018 (1) TMI 1601
Clandestine Removal - final product is produced in the ratio of 1 : 1.1 i.e., MS scrap was consumed more viz-a-viz Final product MS ingot - HELD THAT:- The appellant has produced MS ingots but in the process, by-product ‘runners and risers were also created which were duly shown in the ER 1 by the appellant. Some of the runners and risers were sold by the appellants and remaining were captively consumed in the manufacture of final product i.e. MS ingots.
Matter remanded to the original authority to consider the final output of the MS ingots as well as consumed runners and risers i.e. as inter-mediated product from the original scrap. If the same was recycled, then it will be added to the account of MS scrap - appeal allowed by way of remand.
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2018 (1) TMI 1595
CENVAT Credit - common input services used in the manufacture of taxable as well as exempt goods - non-maintenance of separate records - Rule 6(3) of the Cenvat Credit Rules - HELD THAT:- The adjudicating authority has clearly recorded that the total Cenvat Credit in respect of common input services taken by them was not reversed and only an amount of ₹ 80,006/- was reversed by them. During the course of arguments, the learned counsel submits that the entire amount was reversed, but the adjudicating authority has not taken any cognizance.
The matter is remanded to the original authority to decide the issue afresh, but by providing a reasonable opportunity to the assessee-Appellants to present their case with liberty to file additional documents, if any, as per law - appeal allowed by way of remand.
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2018 (1) TMI 1582
Valuation - undervaluation - Revenue entertained a view that the assessable value of appellant’s goods was on the lower side whereas the goods was being sold at higher price and the differential amount was being reflected in the balance sheet as income arising out of Share Trading - HELD THAT:- The revenue in the present appeal has not produced any evidence on record to show that such extra income shown by the respondent in their balance sheet was on account of any under valuation activities of their final products. In the absence of any evidence on record, the revenue’s allegation cannot be upheld.
No infirmity is found in the impugned order of Commissioner (Appeals) - appeal dismissed - decided against Revenue.
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2018 (1) TMI 1580
Interpretation of statute - N/N. 15/2010-C.E., dated 27-2-2010 - whether the Condition No. 2 of Notification No. 15/2010-C.E., dated 27-2-2010 is required to be fulfilled before the goods are cleared and can be fulfilled subsequently even after the goods are cleared? - HELD THAT:- The wording of Notification clearly established that even after the clearance of the goods undertaking could be submitted by the appellant. Therefore, the contention of revenue is that before the goods were cleared undertaking was to be given cannot be considered to be as per law. In view of the above interpretation of said condition No. 2, we do not find any merits in the appeal filed by Revenue.
Appeal dismissed - decided against Revenue.
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2018 (1) TMI 1579
Captive consumption of Coal in mines - benefit of N/N. 67/1995, dated 16-3-1995 - HELD THAT:- The coal captively used by the appellant and captured in detail in their records will show that they are rightly eligible for exemption as claimed under Notification No. 67/95 for duty as well as cess.
Here the Clean Energy Cess Rules, 2010 defines “Removal” as dispatch of specified goods from a mine and shall include dispatch of such goods for captive consumption within that mine for any purpose other than for raising of such goods”. The lower Authorities otherwise indicated that the appellant shall be eligible for coal if shown to have been used for raising of such coal captively. As such, no excise duty as well as cess on such captively consumed coal are liable to be demanded and paid.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1569
SSI Exemption - benefit denied on the ground that the goods were not manufactured in “rural area” - HELD THAT:- The respondent has produced the certificate issued by the local land revenue officer i.e., Tehsildar on the basis of land revenue records. The appropriate authority in the land revenue matters is Tehsildar who is gazetted rank officer of the State Government and is competent to certify the status of the area. In terms of notification the certificate must be issued by the authority of the State Government. The revenue has not brought any evidence that the Notified Area Committee is controlling the area in question and that the Tehsildar is not competent to issue such certificate.
There are no infirmity in the order passed by the Commissioner (Appeals) - the respondent is eligible for the benefit of exemption notification in question. Hence the appeal filed by the revenue does not survive on merits - appeal dismissed - decided against Revenue.
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2018 (1) TMI 1565
Interest on delayed refund of excise duty - Section 11B of the Central Excise Act - HELD THAT:- Admittedly, the question of payment of interest on the delayed refund of Excise duty has already been settled by a Division Bench of this Court in AMALGAMATED PLANTATIONS (P) LTD. VERSUS UNION OF INDIA [2013 (11) TMI 589 - GAUHATI HIGH COURT] - The Division Bench has held that Section 11B of the Central Excise Act does not exclude claim of refund made in terms of the Notification dated 8-7-1999 and therefore the assessee is entitled to interest under Section 11BB of the Central Excise Act on the excise duty refunded to them.
The Excise Officer are directed to determine the interest amount payable to the petitioner for the relevant period within 3 months from today - petition is allowed with cost of ₹ 1000/- payable to the petitioner.
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2018 (1) TMI 1559
Demand of interest on differential duty - differential duty paid on the supplementary invoices issued - price escalation received from the customers - period April, 2006 to March, 2008 - HELD THAT:- From the perusal of the SCN, it is found that no calculation of interest has been made by Revenue, nor such calculation giving the period for which interest is demanded, had been annexed to the show cause notice. We further notice that in Para 9(b) of the show cause notice it is mentioned that the show cause notice is based on the data submitted by the assessee vide letter(s) dated 16-4-2008 and 24-11-2008 furnishing details of differential duty paid on supplementary invoices issued by them and interest payable thereon. However, such data has not been made part of the show cause notice by annexing the same.
The SCN is vague as it does not disclose the basis or period of default for calculation of interest being demanded from the appellant - it is an admitted fact that the appellant had paid the duty on their own, on clearance by them on the main invoice as well as the differential duty on the supplementary invoices and there is no allegation that by virtue of differential duty on the subsequent supplementary invoices there was delay in payment of duty. Thus the show cause notice is deficient and held not maintainable.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1535
Marketability/excisability - intermediate goods - Poly Propylene Multi Filament Yarn (PPMFY) - the case of the Department is that since the final product NWF was exempted vide N/N. 30/2004 dated 09.07.2004, the exemption provided under N/N. 67/95 dated 16.03.1995 (an intermediate product) is not admissible, and the appellant is required to pay duty - HELD THAT:- The appellants’ unit is a composite unit and doing continuous manufacturing process wherein spinning of semi-finished PPMFY is being done followed by subsequent process like stretching, winding, warping and braiding is done on a needle loom - PPMFY in the stage it is generated is not marketable, being integrated and inter-winded in a continuous process, the yarn threads are still open with oil contact and are not even open at the stage of being coned or paper coned or paper tubed’ and still the said product are bound in loose form in heavy iron bobbins which still has to undergo subsequent operations and the product is in semi-finished form.
The said PPMFY cannot be marketed in any manner, therefore, fails the test of marketability.
Our view is supported by the decision of Hon’ble Supreme Court of India in the case of Bata India Ltd. vs CCE, BATA INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NEW DELHI [2010 (4) TMI 58 - SUPREME COURT] and also of this Hon’ble Tribunal in the case of M/S RISHI BAKERS PVT. LTD., SHRI PRAKASH CHAND TALREJA, DIRECTOR, M/S RAMAKRISHNA BAKERS PVT. LTD., SHRI RAJIV TALREJA, DIRECTOR, M/S SWATI BISCUIT MANUFACTURING CO., SHRI OM PRAKASH SHYAMDASANI, PARTNER VERSUS CCE & ST, KANPUR [2015 (4) TMI 893 - CESTAT NEW DELHI]. Hence, the said product is not liable for Central Excise duty.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1513
Taxability - waste and scrap of various metals arising within the factory including used capital goods on which Cenvat Credit was availed - HELD THAT:- The issue decided in appellant own case CCE, RAIPUR VERSUS M/S ULTRATECH CEMENT LTD. [2017 (5) TMI 1015 - CESTAT NEW DELHI] where an identical issue has come up before this Tribunal in the assessee-Respondents’ own case M/s Ultra Tech Cement Ltd. vs CCE&ST, Raipur [2016 (9) TMI 1234 - CESTAT NEW DELHI], where it was held that in view of the settled principles of law, we are not in agreement with the findings of the lower authority that prescription of Chapter Note in the tariff will create the duty liability on the waste and scrap of metal goods arisen during the course of repair and maintenance of plant and machinery.
Demand set aside - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1496
Permission to withdraw the SLP - HELD THAT:- The writ petition is dismissed as withdrawn.
The special leave petition (SLP(C)Diary No.37973/2017) is dismissed with liberty to the petitioners to file the statutory appeal before Customs, Excise and Service Tax Appellate Tribunal (CESTAT) within thirty (30) days. If it is so filed, it will be considered on merits subject to the requirement of pre deposit.
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2018 (1) TMI 1491
Principles of natural justice - denial of cross-examination of the supplier / manufacturer / dealer / transporters whose statements were relied upon while adjudicating the SCN - HELD THAT:- Issue notice on prayer for interim relief.
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