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Central Excise - Case Laws
Showing 141 to 160 of 470 Records
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2018 (3) TMI 1115 - CESTAT MUMBAI
Penalty - Section 11AC(5) of the Central Excise Act - Held that: - M/s MITC Rolling Mills have admittedly deposited the entire duty and proceedings against them stand concluded in terms of Section 11AC(5) of Central Excise Act and nothing remains - Filing of appeal against the said respondent cannot be appreciated and the Revenue,s appeal is to be rejected and dismissed on such ground itself - the Revenue,s grievance on non-imposition of penalties on the other co-noticees cannot be appreciated in terms of the various decisions of the Tribunal - appeal dismissed - decided against Revenue.
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2018 (3) TMI 1114 - CESTAT MUMBAI
Penalty u/r 25 or 27 of CER, 2002 - default in monthly payment of duty in terms of Rule 8(3A) of CER 2002 - Held that: - this Tribunal time and again held that in case of default in monthly payment of duty in terms of Rule 8(3A) of Central Excise Rules, 2002, it is not the case of clandestine removal or intent to evade payment of duty therefore penalty under Section 11AC or Rule 25 is not imposable - appellant’s act of delay in payment of duty does not invite invocation of Section 11AC or Rule 25.
Penalty u/r 27 rightly invoked - appeal dismissed - decided against Revenue.
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2018 (3) TMI 1113 - CESTAT MUMBAI
CENVAT credit - manufacture of plastic closure (caps for plastic bottle and cans etc) - The case of the Department is that these goods are not input but are finished goods hence are not used in or in relation to the manufacture of final product but were traded as such in the open market - Rule 3(1) and 2(k)(l) of Cenvat Credit Rules - Held that: - appellant have availed CENVAT credit in respect of plastic closure imported by them and the said goods were sold after testing and inspection - If excise duty was paid on such goods at the time of clearance no demand exist.
Though the CENVAT Credit Rules, 2004 provided for eligibility of Cenvat credit in respect of input used in or in relation to the manufacture of final product but Rule 16 also provides Cenvat credit even in respect of duty paid finished goods subject to condition that the said finished goods on which Cenvat credit was availed should be cleared on payment of excise duty i.e. in case of the said finished goods undergone manufacturing process in terms of Section 2(F) Central Excise Act, assesse is required to pay duty on the transaction value, and in other case where the goods does not undergo process which amounts to manufacture, then excise duty equal to Cenvat credit availed on such goods should be paid - In the present case as per the claim of the appellant which was not disputed by the lower authorities that appellant have paid the excise duty at the time of sale of such imported plastic closure. It is found that appellant have paid duty equivalent to the Cenvat credit availed, no further demand would exist.
Both the lower authorities have not verified the details of duty payments on the sale of the bought out goods on which credit was taken therefore this aspect needs to be verified - appeal allowed by way of remand.
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2018 (3) TMI 1112 - CESTAT MUMBAI
Refund claim - the respondent’s Chinchwad unit has been transferred to the present address of the respondent. The appellant paid the service tax on behalf of the Chinchwad unit on reverse charge basis, which is now sought as refund - Held that: - any CENVAT credit lying unutilized with the transferor unit can be transferred to transferee unit subject to condition that input attributable on which credit was availed has also been transferred to the new location - As per the facts of the case, there is no dispute that the entire factory of Chinchwad has been transferred to the present location i.e. Khed. Therefore, whatever credit is available to Chinchwad shall be allowed to be transferred to the new location in terms of Rule 10.
Since the respondent has complied with the provisions of Rule 10, the Commissioner (Appeals) rightly allowed refund of service tax paid by the respondent on behalf of Chinchwad unit as cenvat credit in the books of the respondent.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 1111 - CESTAT MUMBAI
CENVAT credit - inputs - The case of the department is that during certain period, the appellant has not manufactured and cleared prototype vehicle whereas they kept on availing the CENVAT credit - Held that: - The appellant admittedly cleared the input as such on payment of duty. Only for the reason that there is a long interval in the manufacture of prototype vehicle, the manufacturer will not cease to be a manufacturer. Therefore, it cannot be said that the appellant is a trading unit and not a manufacturing unit.
Even if the manufacturing is not undertaken but the unit is registered, the appellant is entitled to avail the cenvat credit in terms of Rule 16 of the Central Excise Rules, 2002. The only requirement is as and when the said input is cleared, excise duty equal to cenvat credit is required to be discharged.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1110 - CESTAT MUMBAI
CENVAT credit - fake invoices - case of the department is that the appellant has availed fraudulent cenvat credit without receipt of inputs only on the invoices issued by M/s. Parmeshwari Steels, Mumbai - Held that: - it is clear that the appellant has not received the input whereas they have taken credit only on the invoices - the case of the department is established beyond any doubt - appeal dismissed - decided against appellant.
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2018 (3) TMI 1109 - CESTAT MUMBAI
Penalty - short payment of duty - non-inclusion of notional profit of 10% in the value of the finished goods cleared by them - Held that: - This issue involves interpretation and various judgments were passed on this issue. Even the legislators also subsequently amended the rule giving a deeming fiction to the trading activity as exempted service. Therefore the issue was not free from doubt. Despite this, the appellant paid the amount - there is no mala fide intention on the part of the appellant for invoking the provisions of Section 11AC - penalty setaside - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1108 - CESTAT MUMBAI
Penalty u/r 15(2) of CCR 2004 - Held that: - The ingredients of rule 15(2), that are clearly enumerated therein implies that penalty is liable to be imposed only in those conditions and none other - It is clear that rule 6(3) does not envisage a change in the method of compliance during the financial year. When the act of the appellant is not recognised in law, there is no ground for alleging non-disclosure of that fact of change is suppression - penalty set aside - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1107 - CESTAT MUMBAI
CENVAT credit - goods were directly sent to the CHA and subsequently CENVAT credit was availed without receipt of the input in the factory - Held that: - the input on which CENVAT credit was availed by the appellant have been admittedly exported under bond/letter of undertaking, CENVAT credit rules provides CENVAT credit in respect of inputs removed under bond. Merely because inputs have not been received in the factory CENVAT credit cannot be denied - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1106 - CESTAT MUMBAI
CENVAT credit - inputs/input services availed in common for manufacture of dutiable and exempted goods - non-maintenance of separate records - Held that: - There is no allegation in the show cause notice that the reversal was less than that attributable to credit used in the manufacture of exempted goods. To render the process of adjudication to be complete, it is necessary that the books of accounts of the appellant be verified to ascertain the availment of CENVAT credit on inputs used in common for exempted and dutiable goods - appeal allowed by way of remand.
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2018 (3) TMI 1057 - PUNJAB AND HARYANA HIGH COURT
Rejection of application for Settlement Commission - maintainability of petition - section 32(O)(1)(i) of the Central Excise Act, 1944 - The Customs and Central Excise Settlement Commission by the impugned order dated 23. 12. 2015 rejected the application holding that it had no jurisdiction to entertain the application as it was barred under section 32(O)(1)(i) of the 1944 Act.
Held that: - It is not necessary to consider whether it can be said that the explanation has retrospective or retroactive effect. The Explanation to section 32(O)(1)(i) was proposed to be inserted by Clause 94 of Bill No. 35 of 2014- a Bill to give effect to the financial proposals of the Central Government for the financial year 2014-15 - The Explanation is, therefore, clarificatory. This is clear from the Statement of Objects and Reasons. Being clarificatory, it has retrospective effect.
Further even apart from the Statement of Objections and Reasons, it is clear that the explanation to Section 32(O)(1)(i) is clarificatory. Section 32(O)(1)(i) does not exclude from its ambit cases where penalty is imposed on the person on the ground of concealment of particulars of his duty liability before the Central Excise Officer. The plain language of the section does not warrant an interpretation to the effect that concealment of particulars only before the Settlement Commission and not before the Central Excise Officer is contemplated. The legislative intent is quite clearly to bar a party from making an application under section 32E of the 1944 Act for settlement if he has concealed particulars of his duty liability. It is difficult to appreciate why concealment of particulars before the Central Excise Officer ought to be treated more lightly than the concealment before the Settlement Commission.
The Explanation is clarificatory and applies retrospectively. Even absent the Explanation we would interpret Section 32(O)(1)(i) to include the orders of settlement which provides for imposition of penalty on the ground of concealment of particulars of duty liability from the Central Excise Officer - Petition dismissed.
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2018 (3) TMI 1056 - RAJASTHAN HIGH COURT
Clandestine removal - Penalty - Admissibility of statement - Whether the Tribunal was correct in allowing the appeals of the assessee, solely by holding that there is no Sufficient corroborative evidence to statement tendered by partner of assessee, even when Statement tendered by Central Excise Officer is admissible before court of law as piece of evidence and thereby deleting the penalty of ₹ 2,00,000/-?
Held that: - the controversy involved in the appeals is covered by the decision of this Court in case of Commissioner of Central Excise vs. Tara Chand Naresh Chand [2018 (1) TMI 209 - RAJASTHAN HIGH COURT], where reliance placed in the case of Continental Cement Company vs. Union of India [2014 (9) TMI 243 - ALLAHABAD HIGH COURT], where it was held that unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 1055 - RAJASTHAN HIGH COURT
Clearance of MS Specials to the water supply projects - benefit of N/N. 47/2002-CE dated 06.09.2002 & N/N. 6/2006-CE dated 01.03.2006 - Whether the ld. CESTAT was right in law in setting aside the demand determined on the basis of non-fulfillment of the conditions of exemption Notification No.47/2002-CE dated 06.09.2002 & Notification No.6/2006-CE dated 01.03.2006 for the clearance of finished goods i.e. MS Specials to the water supply projects without payment of Central Excise Duty? - sub section (3) & (5) respectively of Section 35G of the Central Excise Act, 1944.
Held that: - the Tribunal has rightly observed that t is not the case of the Department that MS Special were supplied somewhere other than projects in hand. The MS Special are connected with the water pipes before they are used, sometimes as a bend to divert the flow. When the MS Specials were used in the project pertaining to the water supply then the same is allowable as Department has already allowed in 4 certificates. Hence, for technical mistake on the part of the appellant, we cannot deny the substantial justice.
The production is the same, manufacturing and the process is the same and excise duty is liable on the manufacturing, merely because in the certificate there is no mention of MS Special, the taxing statute will not be different - the view taken by the Tribunal is just and proper and no interference is required.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 1054 - CESTAT AHMEDABAD
Abatement - closure of the factory from 10.12.2015 to 31.12.2015 - Rule 10 of the Chewing Tobacco and unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) - Held that: - in the event the factory did not produce the notified goods for a continuous period of 15 days or more, the duty calculated on proportionate basis, shall be abated provided the manufacture of such goods files intimation to this effect to the Dept. at least before 3 working days from the commencement of the said period of closure - In the present case, there is no dispute of the fact that the intimation was filed on 4.12.2015 and the machines was sealed under the supervision of the Range Superintendent on 09/10.12.2015.
In absence of any other condition, rejecting the appellant’s claim of abatement of duty paid during the period of closure of the factory on proportionate basis, on the ground that 8 gms/ 10 gms the pouches with MRP of ₹ 5.00, manufactured on trial run but, without disclosing the same to the Dept., is untenable in law - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1053 - CESTAT MUMBAI
Valuation - physician samples which are distributed free as part of marketing strategy, or as a gift or donation to doctors - applicability of Rule 11 of the Central Excise (Valuation) Rules - appellants are seeking to apply Rule 11 read with Rule 8 whereas Revenue is seeking to apply Rule 11 read with Rule 4 of the Central Excise Rules - Held that: - it is seen that the physician samples are not sold by the appellants but are cleared free cost. It is not the appellants case that any of the Rule 4 to 10 of the Central Excise Valuation (determination of price of excisable goods) Rules 2000 are directly applicable. Since no transaction value available, the assessment cannot be done under Section 4 (1) (a) and the assessment has to be done under Section 4 (1) (b). The assessment cannot be done under Section 4A as the said goods are not marked with MRP.
It is apparent that neither Rule 4 nor Rule 8 of the Central Excise Valuation (determination of price of excisable goods) Rules, 2000 are directly applicable to the situation and both the rules have to be applied as reasonable alternatives with suitable adjustments in terms of Rule 11 of the Central Excise Valuation (determination of price of excisable goods) Rules, 2000 - it is seen that identical goods different only in respect of size of packing and marking of MRP, are being assessed under Section 4A of the Central Excise Act and such comparable value after suitable adjustments can be adopted for the purpose of assessment of physician samples in terms of Rule 4 of Central Excise Valuation (determination of price of excisable goods) Rules, 2000. This does not amount to application of Section 4A of the Central Excise Act to physician samples. This is only a measure of taking an alternate value of similar goods for the purpose of Central Excise (Valuation) Rules, 2000 in terms of Rule 11 thereof.
Appeal dismissed - decided against appellant.
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2018 (3) TMI 1052 - CESTAT AHMEDABAD
CENVAT credit - input services - outdoor catering service - Employees transport service - Hotel stay charges and travel agent charges - Construction service - Held that: - service tax paid on outdoor catering service (canteen service), extended to the employees is eligible to credit in view of the judgment of the Hon ble Gujarat High Court in Ferromatik Milacron India Ltd. s case [2010 (4) TMI 649 - GUJARAT HIGH COURT] - credit allowed.
Employees transport service - Held that: - the matter is remanded to the adjudicating authority to scrutinize the evidences in the light of the changes in law and its applicability to the facts of the present case.
Hotel stay charges - travel agent charges incurred by the appellant in relation to sales/marketing of their product Held that: - services is admissible to credit in view of the judgment of this Tribunal in Honda Motorcycle s case [2016 (8) TMI 308 - CESTAT CHANDIGARH] - credit allowed.
Construction service - Held that: - the Ld. Commissioner(Appeals) has already remanded the matter to the adjudicating authority, hence, the said issue for the earlier period is also remanded to the adjudicating authority for verification.
Further the appellant had availed credit of ₹ 2,53,452/- but could not explain it properly before the authorities below against on which particular input service it was availed. The Ld. Advocate claims that now they are in possession of documents accordingly, they could establish the eligibility of the credit of the service tax paid on various services. Thus, this issue is also remanded to the adjudicating authority.
Appeal allowed by way of remand.
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2018 (3) TMI 1051 - CESTAT MUMBAI
Valuation - includibility - notional interest - whether the notional interest on the advance deposit collected by the appellant against the supply of goods is includible in the assessable value of the final product or otherwise? - Held that: - there is no dispute in the fact that the goods supplied by the appellant are not uniform/standard, every machine is a tailor made machine. Therefore if the advance deposit is not collected and at the time of supplies if the buyer refuses to purchase the machine there will be no security to the appellant therefore the reason of taking advance deposit towards the supply of tailor made machine is justified - The department also could not adduce any evidence to establish that the price of the machineries are influenced by taking the advance deposit - notional interest should not be included - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1050 - CESTAT MUMBAI
Transfer of the unutilized accumulated CENVAT Credit - Rule 10 of the CCR - Held that: - Rule 10 permitted the assessee to transfer the available credit along with inputs and capital goods in stock at the factory at a new location. There is no requirement under the rule that the assessee can transfer credit corresponding to the availability of quantum of inputs - transfer of credit allowed - appeal dismissed - decided against Revenue.
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2018 (3) TMI 1049 - CESTAT MUMBAI
CENVAT credit - issuance of invoices without receipt of inputs - fake invoices - Held that: - identical issue has been considered by the Hon'ble High Court of Allahabad in the case of Commissioner of Central Excise & Service Tax Vs. Juhi Alloys Ltd. [2014 (1) TMI 1475 - ALLAHABAD HIGH COURT]. It stands observed by the Hon'ble High Court that in the absence of any alternate source of procurement of raw materials, Revenue’s case of non-receipt of inputs, on the basis of untenable evidence cannot be upheld - appeal dismissed - decided against Revenue.
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2018 (3) TMI 1048 - CESTAT MUMBAI
CENVAT credit - time limit - The case of the department is that as per N/N. 21/2014-CE (NT) dt.11.7.2014, the six months period prescribed for taking credit from the date of issue of invoices. Therefore the credit taken in the present case is after six months from the date of invoices issued in the month of March and April 2014.
Held that: - As per the facts of the case credit was taken in respect of the invoices issued in the month of March & April 2014 in November 2014. On going through the notification No. 6/2015-CE (NT) dt. 1.3.2015 the period available for taking credit is 1 year in terms of the notification, the invoices issued in the month of March and April 2014 become eligible for cenvat credit - in respect of those invoices the limitation of six months cannot be made applicable - appeal allowed - decided in favor of appellant.
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