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Central Excise - Case Laws
Showing 1 to 20 of 470 Records
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2018 (3) TMI 2028
Refund of Education/Higher Education Cess paid by the respondents-assessee in respect of final products manufactured and cleared by them availing area based exemption under Notification No. 56/2002-CE dated 14.11.2002 - HELD THAT:- Both sides agreed that the issue pertaining to the Education/Higher Education Cess has already been decided by the Hon’ble Supreme Court in the case of M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT], wherein it was observed that the assessees are entitled to the refund of Education/Higher Education Cess which was paid along with excise duty, once the excise duty itself is exempted. It is made clear that except for the education cess/higher education cess, no other issue/ground is being pressed in these appeals.
By following the ratio laid down by the Hon’ble Supreme Court, there are no reason to interfere with impugned orders where the refund claims of the assessees pertaining to Education/Higher Education Cess were allowed.
All the appeals filed by the Revenue are dismissed.
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2018 (3) TMI 2016
Clandestine production and removal - demand based on electricity consumption - Requirement to give an opportunity of the cross examination to the assessee in absence of any such prayer made - cross examination can be claimed by the parties as their legal right or not - HELD THAT:- Taking into consideration the fact that the finding with regard to electricity consumption is contrary to decision of Supreme Court in COMMISSIONER OF C. EX., MEERUT-I VERSUS RA CASTINGS PVT. LTD. [2010 (9) TMI 669 - ALLAHABAD HIGH COURT], the said issue is required to be answered in favour of the assessee and against the department - it was held in the said case that we are of the view that the findings of the Tribunal are based on the material on record and they cannot be said to be without any material and perverse. We find that the Revenue has invoked the proviso to Section 11A(1)of the Act but no case has been made out in the show cause notices or in the adjudication order that there were any misstatement, suppression of fact or fraud on the part of the respondents. No substantial question of law arises from the order of the Tribunal.
The other issue which has been raised by both the parties relying on the documents which have been recovered during search from M/s. Sharma Steel Rolling Mills Pvt. Ltd., the matter requires reconsideration by original authority as the addition was also based on the documents found during surprise visit made by the authorities to the factory premises of the assessee and was not solely based on electricity consumption.
The matter is remitted back to the original authority after setting aside the order of tribunal - Appeal allowed by way of remand.
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2018 (3) TMI 2012
Valuation of imported goods - rechargeable batteries - rejection of declared value - existence of reason to enhance the value based upon the market enquiry or not - HELD THAT:- It is seen that the appellant had declared the value of the imported goods, based upon the transaction value entered between him and the foreign supplier. The said transaction value does not stand accepted by Revenue on the basis of doubt entertained by them, resulting in conducting of market survey in India and rejecting the declared value of subject goods. It is well settled law that for enhancing the assessable value of the imported goods, Revenue has to first reject the transaction value by producing sufficient and cogent evidences.
In the present case there is nothing on record to indicate or to establish that the transaction value entered between the exporter and the importer was not correct and there was under-hand compensation being given to the exporter. Admittedly, Revenue's case is based upon the market enquiry conducted in India which are bound to result in variations.
In the absence of any evidence to reflect upon the incorrect transaction value, there are no justifiable reason to enhance the value based upon the marker enquiry.
Appeal allowed.
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2018 (3) TMI 2009
Refund of education/ higher education cess - amount paid in terms of N/N 56/2002-CE dated 14.11.2002 - HELD THAT:- The issue has been settled by the Hon'ble Apex Court in the case of M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT], it is held that assessee is entitled to claim refund/ self credit of education/higher education cess, which is a part of duty, as per Notification No. 56/2002-CE dated 14.11.2002.
The impugned orders set aside - appeal allowed.
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2018 (3) TMI 2004
Reversal of CENVAT Credit - sludge/waste, inevitably arising during manufacture of paper and paperboard - provisions of Rule 6(3) of CCR, 2004 - HELD THAT:- The issue herein is squarely covered in favour of the appellants by ruling of the Coordinate Bench of this Tribunal in M/S. MAGNUM VENTURES VERSUS CCE., GHAZIABAD [2014 (4) TMI 416 - CESTAT NEW DELHI] where it was held that emergence of sludge and pulper waste during the course of manufacture of paper or paper board cannot be held to the result of any manufacturing activity.
Reversal of credit not required - appeal allowed.
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2018 (3) TMI 1963
Maintainability of appeal - compliance with the requirement of pre-deposit - appellant submits that his client is suffering with acute shortage of fund, for which, he is unable to make pre-deposit - it is also submitted that the relevant period is prior to amendment where the pre-deposit has not been made mandatorily - HELD THAT:- The appellant will have to make pre-deposit as required by law at the rate of 7.5%. When pre-deposit has not been made, then, the appeal as well as the stay petition are dismissed.
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2018 (3) TMI 1954
Recovery of CENVAT credit - credit availed in excess - certain facilities provided to supplier and the cost thereof had been incorrectly included assessable value for levy of duties of central excise on the clearances effected to appellants - HELD THAT:- The dispute stands settled by the decision of the Tribunal in COMMISSIONER OF C. EX., HYDERABAD VERSUS AUROBINDO PHARMA LTD. [2009 (3) TMI 908 - CESTAT BANGALORE] where it was held that eligibility for credit arises on payment of duty and wage in manufacture of excisable goods, the recovery of CENVAT credit in impugned order is not proper.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1910
SSI Exemption - use of brand name or the goods were unbranded - N/N. 175/86 CE, 1/93 CE dated 28.02.93 and 16/97 CE dated 01.04.1997 - Extended period of limitation - HELD THAT:- Admittedly, in this case, the period involved is 01.04.1994 till 17.10.1997 whereas the show cause notice has been issued on 22.03.1999. In that circumstances, the show cause notice has been issued by invoking extended period of limitation.
The extended period of limitation is not invokable in the facts and circumstances of this case. As there were divergent views during the relevant period on the issue of benefit of SSI exemption notification using brand name of other person for different goods. In that circumstance, the whole of the demand is barred by limitation.
Appeal is allowed on limitation.
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2018 (3) TMI 1885
Withdrawal of investments made - Clause-F of the notification dated 21-1-2004 - writ petition is preferred with the grievance that in spite of the petitioner being entitled to remove the capital investment in plants and machineries under Clause-F of the notification dated 21-1-2004, the respondent authorities are not allowing the petitioner to do so - HELD THAT:- None of the three methods provided under Section 11 of the Central Excise Act, 1944 empowers the department to attach any property of an assessee/person on the ground that such person or assessee may be liable to pay the department any amount towards meeting the dues under the Central Excise Act or the Rules framed thereunder. In the absence of such power, this Court cannot concur with the stand taken by the respondent authorities in paragraph-8 of the affidavit in opposition that in exercise of power under Section 11 of the Central Excise Act, 1944, the plants and machineries of the petitioner are being attached for the purpose of meeting the dues that may be due from the petitioner in respect of such cases mentioned therein, which are pending before the Hon’ble Supreme Court of India or before the CESTAT, Kolkata.
The conduct of the Excise Department in not allowing the petitioner to remove the plants and machineries is found to be contrary to the powers conferred under Section 11 of the Central Excise Act, 1944 and this Court is of the view that the respondent Excise Department cannot attach any other property of the petitioner other than any excisable goods and also cannot restrain the petitioner from lifting the plants and machineries involved in the present writ petition by taking recourse of Section 11 of the Central Excise Act, 1944.
The appropriate authority in the Central Excise Department shall not prohibit the petitioner from lifting and taking away the concerned properties by exercising their power under Section 11 of the Central Excise Act, 1944 - Petition disposed off.
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2018 (3) TMI 1882
Disallowance of CENVAT credit - procured capital goods from M/s. Inox Air Products Ltd. but retained the same in that condition in their factory in order to obtain a higher refund under N/N. 32/99-CE dated-8th July 1999 - HELD THAT:- It is not in dispute that the goods have been procured on long term basis and the CENVAT Credit has been taken subsequently after assembling on the same invoices against which the goods were procured. From this it is clear that capital goods were delivered and received in the factory of the appellant in 2007-2008. While usage within the factory may well be a term use in the definition of Rule 3 of CENVAT credit Rules, 2004 which authorises the availment of credit specified and received in the factory. Accordingly, we hold that the eligibility for CENVAT Credit arises in 2007-2008 and these being capital goods, credit should have been availed in 2007-2008 and 2008-2009 - the refund amount of Rs. ₹ 15,95,332/- claimed during these two years was in excess of their entitlement and hence recovery thereof cannot be faulted.
As far as the subsequent availment of CENVAT Credit is concerned, without findings of any eligibility for the excess amount claimed and refund arising from deferment of availment of credit, we hold that the entitlement of CENVAT Credit is not deniable. For this reason, recovery of that amount is not correct in law.
The appeal of M/s. Premier Cryogenics Ltd. is allowed to the extent of setting aside the demand of Rs. ₹ 22,93,920/- while upholding the recovery of Rs. ₹ 15,95,332/- - Appeal allowed in part.
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2018 (3) TMI 1857
Refund of amount lying unutilised in PLA account - rejection on the ground of bar of limitation by observing that, inasmuch as the same amount is “due waiting to be debited”, the limitation as provided under Section 11B of Central Excise Act, 1944 would apply - HELD THAT:- The limitation prescribed under Section 11B applies to the refund of duty amount. Inasmuch as the lower authorities themselves observed that the amount in question is “duty waiting to be debited”, this clearly shows that the same is not duty, in which case, the provision of Section 11B would not apply.
Otherwise also, it is found that the PLA deposits are mere deposit for the purposes of their utilisation in the future and if the same is not in a position to be utilised, the depositor has to be held as owner of the said amount which is required to be refunded to them, in the absence of any limitation prescribed under the Act for such refund.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1850
Benefit of Concessional rate of duty - N/N. 29/2004-Cx - import of 100% cotton woven interlining materials falling under Chapter heading 5903 - Inasmuch as, the fabrics in question were sprayed with polymer based fusible material, the authorities entertained the view that the same are no longer cotton woven textiles - Levy of SAD - HELD THAT:- The Textiles Committee in their report had clearly stated that warp and weft of the fabric is 100% cotton. Coating the same with polymer based fusible material would not convert the character of the fabric inasmuch as, the said material is a mere coating and is not part of the fabric in question by way of any other textile materials. The exclusion from the benefit of notification would apply only if the fabrics in question are not made of cotton or are made of any other textile materials.
Levy of SAD - HELD THAT:- The Revenue’s grievance that the goods in question were taken out of the Schedule of Additional Duties of Excise (Goods of Special Importance) Act, 1957 with effect from 8-4-2011 and as such, the reasoning of the appellate authority that the goods would be exempt from SAD as they were exempt from SIA, is not proper - Learned Advocate appearing for the appellant agrees with the contention of the Revenue and is not contesting the same. In that view of the matter, we hold in favour of the Revenue and set aside the said part of the Commissioner (Appeals) order vide which, he has held that SAD is not applicable.
Appeal disposed off.
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2018 (3) TMI 1848
Refund of CENVAT Credit - Tariff sub-heading was not given on three invoices issued to the manufacturers - for the seven invoices issued to the manufacturers for consignee name shows as M/s. Krishna Steel Enterprises whereas the goods were delivered to M/s. Nandish Alloys Ltd. - rejection of refund on the ground that the assessee did not make an application to Deputy Commissioner/Assistant Commissioner under Rule 9(2) of the Cenvat Credit Rules, 2004 - HELD THAT:- On plain reading of this Rule, it is evident that there is no express requirement that the assessee should file an application before the Deputy Commissioner/Assistant Commissioner. The only requirement in the Rule is that the goods or taxable service covered by the impugned document should have been received and accounted for in the books of accounts of the receiver. Hence the insistence on filing an application is not justified. Instead, Deputy Commissioner/Assistant Commissioner, who was dealing with the refund claim, should have called the books of accounts of the assessee and satisfied himself.
The matter is remanded back to the adjudicating authority to re-examine the refund claim of the appellants, who will produce the books of accounts to satisfy the Assistant Commissioner that the goods against the said invoices have been received and accounted for in their books of accounts by them - Appeal allowed by way of remand.
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2018 (3) TMI 1841
SSI Exemption - clubbing of clearances - Whether the CESTAT is correct in holding that M/s. Vyas Textiles and M/s. Vyas Textiles, B Unit are separate units, individually eligible for the benefit of N/N. 1/1993, as amended when the authorised signatory of both the units and son of the proprietor has clearly admitted that both units are owned by the same person? - HELD THAT:- The CESTAT has erred in not holding that declarations opting under SSI scheme separately for both the units is a gross misdeclaration when they knew pretty well that they are proprietorship firms and owned by one and the same individual. This has been done with an intention to evade payment excise duty by wrongly availing SSI exemption for both the units and suppressed the information from the department with an intention to avail the ineligible exemption - Mr. M.G. Vyas, knowing that both the units are owned by him had filed option to avail SSI benefits for each units as if the both are separate units headed by separate individual. In view of the settled legal position brought out by the above referred decision of the Tribunal, the culpability of Mr. G.M. Vyas is clearly established. As such, the decision given by the Tribunal is erroneous and liable to be set aside.
The CESTAT has erred in holding that the statements recorded from customers, workers and transporters cannot be the basis for establishing the misdeclaration that cone yarn/cheese yarn were removed under the guise of Hank yarn. On examination of the statements recorded from customers it is seen that there is a clear admission of the misdeclaration of the description of the goods by the respondent in the invoices which mentions plain reel hanks instead of the cone/cheese yarn dispatched by them. The CESTAT has not appreciated the fact that the usage of plain reel hanks is not required by the customers who manufacture Terry towels and that there is a deliberate misdeclaration regarding the Plain Reel Hanks supplied by the respondent to its customers stands clearly proved in this case - the CESTAT has not correctly reasoned or given any finding as to how these statements cannot be accepted especially when the customers themselves have admitted the receipt of cone yarns which are used by them for the manufacture of Terry Towels which is totally different from the description given in the invoice. Such a decision cannot stand the test of legal scrutiny and liable to be set aside.
Clandestine Removal - Demand of Excise duty - cotton yarn in cheese form, cleared in the guise of Plain Reel Hank (PRH) - invocation of proviso to Section 11A of CEA - M/s. Vyas Textiles has not resorted to any clandestine removal when the conclusions drawn from admissions of the customers and the evidences brought on record speak otherwise? - HELD THAT:- The adjudicating authority has not given due cognizance and a clear finding as to how the parallel set of invoices recovered by the investigating agencies from the premises of the respondent is not a valuable evidence for clandestine removal of cotton yarn or at best a corroborative evidence for the removal of cotton yarn in the guise of Plain Reel Hanks. This has also not been examined by the CESTAT as well. This recovery of parallel set of invoices from the premises points out to illegal dealing on the part of the respondents - the finding given by the Hon’ble Tribunal that there is no sufficient corroborative evidence to sustain the case against the respondent lacks merit and hence liable to be set aside.
Burden to prove clandestine manufacture and removal is on the revenue. The standard of proof has to be necessarily based on preponderance of probabilities. Conjunctures and surmises cannot be the basis of proof, when clandestine removal is alleged and for establishing the said charge, there should be positive evidence. Therefore, when the department has alleged clandestine production and removal of goods, without due proper accounting in the records and without payment of duty, the burden of establishing the allegation lies heavily on the department. In the case on hand, the department has not discharged the burden.
No substantial questions of law, are involved - Appeal dismissed - decided against appellant.
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2018 (3) TMI 1840
Levy of interest and penalty - reversal of already availed CENVAT credit - HELD THAT:- Since in the instant case, the appellant had reversed the credit, interest cannot be levied - demand of interest set aside.
Penalty - HELD THAT:- There are no material on record indicating suppression of fact with intent to evade payment of duty and other ingredients as mentioned under Section 11AC of the Central Excise Act, 1944. Therefore, imposition of penalty is unwarranted.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1831
CENVAT credit - goods supplied to SEZ Developers during the period 2005-08 - export or not - applicability of Rule 6(3)(b) of Cenvat Credit Rules, 2004 - HELD THAT:- The issue is no longer res integra as the same is settled in various judgments including the judgment cited by the Learned Counsel in the case of Lotus Power Gears (P) Ltd. [2016 (6) TMI 998 - KARNATAKA HIGH COURT]. The Tribunal has taken consistent view that the supply made to the SEZ Developers is considered as export even prior to Notification No. 15/2008-C.E. (N.T.) applying the provisions of SEZ Act, 2005.
The impugned order is not sustainable, hence the same is set aside - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1818
Process amounting to manufacture - Partially Oriented Yarn (POY) and the final product i.e. yarn - two distinct products or not - HELD THAT:- There are no legal and valid ground for interference - Special Leave Petitions are dismissed.
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2018 (3) TMI 1803
Refund of education/ higher education cess - area based exemption under N/N. 56/2002-C.E., dated 14-11-2002 availed - Revenue entertained a view that such cess is not refundable as no exemption is provided for the same - HELD THAT:-The issue stands covered by the decision of Hon’ble Supreme Court in SRD Nutrients Pvt. Ltd. v. CCE, Guwahati [2017 (11) TMI 655 - SUPREME COURT]. As such, following the ratio of the Hon’ble Supreme Court who held that the assessee is eligible for such refund which is paid along with the excise duty once the excise duty itself was exempted.
Valuation - inclusion of freight component in the transaction value - N/N. 56/2002-C.E., dated 14-11-2002 - HELD THAT:- In the present case the appellant/assessee is claiming that the goods were sold on FOR basis and as such the place of removal is the delivery point to the buyer. The freight element incurred by the appellant/assessee should form part of the assessable value in such FOR sale.
Hon’ble Supreme Court in CCE, Nagpur v. Ispat Industries Ltd. [2015 (10) TMI 613 - SUPREME COURT]. In the said decision the Apex Court held “under no circumstances can the buyer’s premises, therefore, be the place of removal for the purpose of Section 4 on the facts of the present case.
Following the ratio of the Apex Court in Ispat Industries Ltd., it is held that there is no justification for the appellant/assessee to consider the assessable value with Inclusion of freight element after the goods were sold/removed from the factory. As such, the question of paying duty on such value addition to be covered by the exemption under N/N. 56/2002-C.E. does not arise.
The appeals filed by the assessee-appellants contesting the eligibility for refund of education cess are allowed and the appeals regarding assessable value with inclusion of freight element are dismissed - Appeal allowed in part.
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2018 (3) TMI 1786
Taxability - scrap arising out of wear/tear or outcome of repair process within the factory premises - HELD THAT:- The appellants used certain MS items for repair, re-structuring and certain items emerged due to general wear and tear. Those items are identifiable and distinguishable from the manufactured scrap - in the absence of evidence to support that all scrap were arising during manufactured, we find force in the submission of the appellant - duty liability on such normally resultant scrap due to wear and tear or repair etc. cannot be sustained - demand set aside.
Reversal of CENVAT Credit - certain goods cleared in terms of Rule 3 (5A) of the Cenvat Credit Rules - HELD THAT:- The appellants have reversed the credit wherever the capital goods were identified and cleared as such - these scrap are generated scrap due to disintegration and general maintenance work, not out of capital goods. Since, no capital goods were identified in demand proceedings to comply with Rule 3 (5A), there is no justification to uphold the demand - demand set aside.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1780
CENVAT Credit - inputs - export of goods - HELD THAT:- It appears that appellant has manufactured only two items and two items were bought from the open market and by putting all the four items in a box (gift box) the same was exported. When export has been made and rebate has been claimed, in this situation the appellant is not entitled for double benefit as per section 2(k) of the Cenvat Credit Rules, 2004 - appeal dismissed - decided against appellant.
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