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Central Excise - Case Laws
Showing 21 to 40 of 470 Records
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2018 (3) TMI 1773
CENVAT Credit - input - MS Flat /Bar, MS Angle, MS Channel etc. - HELD THAT:- When on final product duty was paid and accepted by the Departmetn then appellant is entitled for cenvat credit on input as per the ratio laid down in the decision of the Tribunal in JAI RAJ ISPAT LTD. VERSUS COMMISSIONER OF C. EX., HYDERABAD-IV [2006 (7) TMI 210 - SUPREME COURT] - the appellant is entitled to avail cenvat credit in accordance with the Cenvat Credit Rules - Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1755
Valuation - clearance of goods to sister units - related party transaction -it was alleged that duty liability was discharged at the value adopted for clearance of goods at the factory gate to independent person - HELD THAT:- It is seen that substantial evidence of the inter connected nature of the two entities in accordance with Section 4 of the Central Excise Act, 1944 is on record. The valuation is of goods cleared to M/s Pawan Casting (Meghalaya) Pvt. Ltd., which Should, therefore, have been computed on cost of production was not undertaken by the appellant. Accordingly the appellant’s liability to pay tax does not conform to Central Excise Valuation Rules, 2000.
The claim of the appellant that the entire exercise is revenue neutral as they are entitled to the benefit of refund of duty discharged will not suffice for the purpose of excluding them for the application of the said Rules.
Penalty - HELD THAT:- There has been no suppression on their part and duties have been paid on value which is no different for clearance to independent purchasers and that, in any case, they were entitled to get refund of the tax discharged by them - penalty do not sustain.
Appeal allowed in part.
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2018 (3) TMI 1746
Restoration of appeal - rejection on the ground that the Appellants delayed in complying with the directions of the Hon’ble High Court - Held that:- It is an admitted fact that the appellant company paid ₹ 37,08,462/- towards 50% of the Service Tax component only on 9-4-2014, i.e., two days after the dismissal of the appeal by the Appellate Tribunal for non-compliance. The bond required to be furnished in terms of the order dated 5-12-2013 passed in CEA No. 39 of 2013 was submitted only on 10-6-2014 - The aforestated undisputed facts clearly demonstrate that the appellant company was utterly negligent in complying with the orders passed by the Appellate Tribunal and thereafter, by this Court, notwithstanding the specific time stipulations mentioned therein. Further, the appellant company was well aware that the Appellate Tribunal had made it clear that in the event it failed to deposit 50% of the assessed tax liability plus proportionate interest within eight weeks from the date of the order, the stay would stand dissolved.
Having failed to safeguard its own interest by complying with the conditional stay orders passed by the Appellate Tribunal and thereafter, by this Court, the appellant company cannot seek further indulgence. There is no explanation forthcoming as to why the appellant company did not at least deposit 50% of the Service Tax component immediately after receiving the order dated 5-12-2013.
This Court finds no grounds whatsoever to interfere in the matter - application for Restoration of Appeal dismissed.
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2018 (3) TMI 1741
Clearance of goods to institutional/industrial consumers - benefit in terms of SI. No. 1C of N/N. 04/2006 dated 01/03/2006 and Entry 52 of the N/N. 12/2012-CE dated 17/03/2012 - Held that:- The builder and construction companies qualify as institutional/industrial consumers, hence the benefit of the said Notifications would be available to the assessee - Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1737
Refund/self-credit of duty paid in cash - time limitation - area based exemption availed - case of Revenue is that the appellant have not taken the refund/self-credit or duty paid in cash in the seven days of the next month and they have taken the same later on, therefore, they are not entitled to self-credit on the same.
Whether as per Notification No. 56/2002-C.E., dated 14-11-2002 is there any bar or is there any condition on the appellant to take refund/ self credit of duty paid in cash of seven days of next month or not? - Held that:- The appellant themselves of their own option can take self-credit or duty paid in cash. As per the said condition there is not bar on the appellant to take the refund/ self-credit by seven days of next month, therefore, understanding of the Revenue that they have to take self-credit/refund by seven days of next month is erroneous - the appellant have correctly availed Cenvat credit later on - decided in favor of appellant.
Whether the appellant is entitled to claim refund of education cess/higher education cess in terms of Notification No. 56/2002-C.E., dated 14-11-2002 or not? - Held that:- The issue of refund of education cess/higher education cess has been dealt with by the Hon'ble Apex Court in the case of SRD Nutrients Pvt. Ltd. v. CCE, Guwahati, [2017 (11) TMI 655 - SUPREME COURT OF INDIA], wherein the Hon'ble Apex Court held that the education cess/higher education cess arises on account of payment of duty, therefore, the refund claim is admissible of education cess/higher education cess in terms of Notification No. 56/2002-C.E., dated 14-11-2002 - decided in favor of appellant.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1732
Refund of duty - rejection on the ground that the activity undertaken by the appellant does not amount to manufacture, consequently their registration certificate was cancelled - Held that:- It is a fact on record that if activity undertaken by the appellants does not amount to manufacture and cancelled their registration certificate. Later on, revenue undertaken the view that the activity undertaken by the appellants amount to manufacture and the appellant is entitled benefit of exemption Notification No. 56/2002-C.E., dated 14-11-2002. In that circumstances whatever duty is paid by the appellant in cash by exhausting Cenvat credit is entitled to the refund to the appellants. In that circumstances, no duty is payable by the appellant in practical.
The question of demanding interest does not arise - Moreover as the revenue was of the view that initially, the activity undertaken by the appellant does not amount to manufacture. Therefore, no penalty can be imposed on the appellants by changing the view by the revenue - the question of paying interest and penalty on the appellants during the impugned periods does not arise.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1724
Rebate claim - export of goods - Gutkha - denial of rebate on the ground that the respondent had not paid the Central Excise duty for the full month of July, 2012 and had paid duty for the 5 days only - Held that:- The issue in the present case is regarding rebate of duty against the export of goods and not a case of abatement of duty claimed by the respondent for which duty for the whole month is required to be paid in advance - Notification No. 32/2008-C.E. (N.T.), dated 28-8-2008 does not stipulate any condition that the duty payment for the entire month is a pre-condition for claiming rebate of duty on exported goods and the rebate of duty has been claimed by the respondent in respect of central excise duty only paid on the exported goods.
As per Rule 18 of Central Excise Rules, 2002 and Notification No. 32/2008, the main conditions for claiming rebate of duty are that the duty paid goods have been exported within stipulated time and the claim has been lodged within one year from the export of the goods. The compliance of these conditions is not in dispute in the present case and there is no allegation from the applicant that other conditions mentioned at S. No. (ii) to (ix) have not been satisfied in this case - rebate should not be denied - revision application dismissed.
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2018 (3) TMI 1720
Remission of duty - 70,000 sticks of cigarettes which were stolen from the factory of the respondent - Rule 21 of the Central Excise Rules, 2001 - Held that:- The Government has examined the matter and it is found that the issue involved in the Revision application is undisputedly regarding remission of duty on the stolen cigarettes. Whereas, as per first proviso to Section 35B read with Section 35EE of the Central Excise Act, 1944, the Revision application can be filed with the Government against the O-I-A only if the order relates to a case of loss of goods, a rebate of duty of Excise on exported goods and goods exported outside India without payment of duty.
The theft of the cigarettes has been committed in this case while the goods were lying in the factory in fully finished condition and, therefore, it cannot be covered in the ambit of “processing loss” as envisaged in clause (a) of the first proviso to Section 35B which can cover only leakage and burning loss, etc. and post-manufacturing losses such as storage loss on account of any accident or theft, etc. are not covered. Therefore, the Government considers that it does not have jurisdiction to deal with the above stated Commissioner (Appeals)’s order which does not involve any issue relating to transit loss or processing loss.
The Revision application is not found maintainable before the Government - Application rejected.
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2018 (3) TMI 1711
CENVAT Credit - input services - telephone service - period from April, 2004 to September, 2015 - Held that:- In view of the fact that the disputed input service has been used in or in relation to the manufacture of the final product by the appellant and in view of the fact that the appellant had reversed proportionate cenvat credit in respect of use of input service for trading activity, the disputed service is confirming to the definition of input service under the amended provisions of Rule 2 (l) of the Cenvat Credit Rules, 2004, with effect from 01.04.2011 - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1710
Refund of EC and SHEC - N/N. 56/2002-CE dated 14.11.2002 - rejection on the ground that the appellants are not entitled to self credit/ refund of education/ higher education cess paid by them in terms of N/N. 56/2002-CE dated 14.11.2002 - Rejection also on the ground of restrictions imposed under N/N. 19/2008-CE dated 27.03.2008 and 34/2008-CE dated 10.06.2008.
Held that:- Whether the appellants are entitled to refund/ self-credit of education cess/ higher education cess paid by them has been settled by the Hon'ble Apex Court in the case of M/s. SRD Nutrients Pvt. Limited vs. CCE, Guwahati [2017 (11) TMI 655 - SUPREME COURT OF INDIA], wherein it has been held that education cess/ higher education cess is continuation of duty paid by the assessee. If the assessee is entitled to refund of duty paid through PLA, then for the education cess/ higher education cess also, the assessee is entitled to claim refund/ self-credit - refund allowed.
In terms of Notification No. 19/2008-CE dated 27.03.2008 and 34/2008-CE dated 10.06.2008, whether the appellants are entitled to claim refund/self-credit as restricted by these notifications or not? - Held that:- The notifications in question have been examined by the Hon’ble J & K High Court in the case of Reckit Benckiser vs. UOI [2010 (12) TMI 237 - JAMMU AND KASHMIR HIGH COURT], wherein the Hon’ble High Court quashed the notifications in question. Therefore, in terms of Notification No. 56/2002-CE dated 14.11.2002, the appellants are entitled to claim refund/ self-credit of duty paid through PLA, relying on the decision of this Tribunal in the case of M/s. Biostadt India Limited & others [2018 (4) TMI 1154 - CESTAT CHANDIGARH] - refund allowed.
The refund/ self credit cannot be restricted in terms of N/N. 19/2008-CE dated 27.03.2008 and 34/2008-CE dated 10.06.2008 and the appellants are entitled to claim refund/self credit of duty paid through PLA, in terms of N/N. 56/2002-CE dated 14.11.2002 - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1705
Valuation - contention of the appellants is that they have done job work and accordingly the transaction relates to the period June, 2000 to September, 2001 and hence they are not liable for payment of duty - Held that:- There is ample evidence on record which supports the contention of the appellants that there was no mala fide, the transaction was job work, being in the shape of receipt of goods on invoices, wherein job work was mentioned. Thereafter on conversion of the goods, again returned by challan's which is marked as job work and there being job work charges collected by the appellants. However there is failure on the part of the appellant's to take care to follow the prescribed procedure or as prescribed under N/N. 214/86-CE, and due to this reason they have become disentitled for the exemption Notification.
There is no mala fide and/or contumacious conduct on the part of the appellants in not paying the duty at the time of clearance. Penalty u/s 11AC set aside - the penalty imposed on the other two appellants- Directors Shri Shubash Chand Gupta and Shri Sharad Chand Gupta under Rule 209-A of Central Excise Rules, 1944 read with Section 308A of the Central Excise Rules, 1944 is also set aside - appeal allowed in part.
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2018 (3) TMI 1701
Principles of Natural Justice - It is case of petitioners that without furnishing any proof of service of show cause notice in the year 2002, respondent heard the petitioners on 16-11-2016 and 2-3-2017 and passed the impugned Order-in-Original - alternative remedy - Held that:- The undisputed aspect that emerged from the proceedings would unequivocally indicate that notice dated 22-8-2002 did not result into any order for quite sometime and as per say of respondent, it was consigned to the call book as per the circulars prevalent. The authority appeared to have proceeded with broad aspect of the matter that non-receipt of the said notice cannot be said to be established by the noticee and based thereupon, recording findings that concerned authorized person of the petitioner Company, who also is the signatory to this petition, did receive the notice and therefore, it cannot be in any manner correct on the part of the petitioners to say that there was no knowledge of existence of show cause notice dated 22-8-2002.
This contention needs to be examined in light of the principles underlying the law, which is by now settled that inordinate delay in adjudication results into denial of principles of natural justice and that proposition cannot be said to be non est in the present proceedings.
Alternative remedy - Held that:- The ground of alternative remedy is also does not impress this Court in any manner, as there is clear violation of principles of natural justice, which cannot be overlooked by any authority, therefore, this ground is also not available to respondent.
The notice dated 22-8-2002 as well as Order-in-Original dated 8-3-2017 passed by Respondent No. 2 deserve to be quashed and set aside - petition allowed.
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2018 (3) TMI 1693
Penalty u/s 11AC - case of appellant is that prior to 28.09.1996, the provisions of Section 11AC of the Act were not in the statute books from 1995 to 28.09.1996 - Held that:- In the impugned order, penalty imposed on the appellant is under Section 11AC of the Act and in the matter, period involved is prior to 28.08.1996 also. Therefore, the duty confirmed for the period from 1995 to 28.09.1996, penalty is not imposable.
The impugned order is modified to the extent that penalty equal to duty is not imposable upto 28.09.1996 i.e. for the period prior to 28.09.1996 the demand of duty is confirmed but the penalty imposed on the appellant is reduced equal to duty for prior to 28.08.1996 - appeal allowed in part.
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2018 (3) TMI 1692
Recovery of refund allowed - allowability of discounts - Revenue held a view that the assessee-Appellants did not deliberately factor in the discounts extended by them to their buyers, thereby paying higher duty on such inflated value in order to claim undue refund as available under the said Notification - principles of natural justice - Held that:- The impugned order proceeded more on inference and presumptions rather than on verification of documents and facts.
The impugned order fell in error by arriving at the conclusion based on inference and presumptions only. When the discounts were based on post clearance arrangement and activities like damage of goods and other considerations, the same cannot be claimed as they do not fulfil the requirements of Section 4. The discounts should be pre-notified and clear at the time of clearances of goods.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1684
Clandestine removal - shortage/excess in the Annual Shortage and Surplus Report - Held that:- The issue decided in appellant own case ROURKELA STEEL PLANT [SAIL] VERSUS COMMISSIONER OF C. EX., BHUBANESWAR [2000 (7) TMI 726 - CEGAT, KOLKATA], where it was held that There is nothing on record to show that the appellants have been indulging into excess clearances without payment of duty. The appellants have satisfactorily explained the difference between the figures as reflected in annual financial account and those entered in RG-I for each and every item - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1681
Valuation - job-work - section 4 of Central Excise Act, 1944 - It is the claim of the appellant that the peculiar circumstances of the clearances effected from the factory have not been taken into account by the adjudicating authority - principes of natural justice.
Held that:- The leap from the applicability of section 4 of Central Excise Act, 1944 to the disinclination in accepting the contention of the appellants for invoking of rule 11 of Central Excise (Determination of Price of Excisable Goods) Rules, 2000 lacks justification to accord validity to the conclusion that the incorrect provisions for valuation has been resorted to. The specific business model of the appellants does not appear to have weighed with the adjudicating authority. It was also necessary on the part of the adjudicating authority to ascertain the scope of ‘job work’ in the context of the duty liability devolving, and envisaged in Central Excise Act, 1944, on the manufacturer.
The matter remanded back to the adjudicating authority to determine all the aspects - appeal allowed by way of remand.
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2018 (3) TMI 1674
Refund of Education Cess and Higher Education Cess - Held that:- It was observed that the appellants were entitled to refund of Education Cess and Higher Education Cess, which were paid along with Excise duty, once the Excise duty itself was exempted - the claim of the refund of the Education Cess and Higher Education Cess is allowed - appeal allowed in part.
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2018 (3) TMI 1670
Refund of self credit/ refund of education/ higher education cess paid - N/N. 56/2002-CE dated 14.11.2002 - Held that:- The issue whether the appellants are entitled to refund/ self-credit of education cess/ higher education cess paid by them has been settled by the Hon'ble Apex Court in the case of M/s. SRD Nutrients Pvt. Limited vs. CCE, Guwahati [2017 (11) TMI 655 - SUPREME COURT OF INDIA], wherein it has been held that education cess/ higher education cess is continuation of duty paid by the assessee - appellants are entitled to claim refund/ self-credit of education cess/ higher education paid by them through PLA.
In terms of Notification No. 19/2008-CE dated 27.03.2008 and 34/2008-CE dated 10.06.2008, whether the appellants are entitled to claim refund/self-credit as restricted by these notifications or not? - Held that:- In terms of Notification No. 56/2002- CE dated 14.11.2002, the appellants are entitled to claim refund/ self-credit of duty paid through PLA, relying on the decision of this Tribunal in the case of M/s. Biostadt India Limited & others [2018 (4) TMI 1154 - CESTAT CHANDIGARH] - refund allowed.
The refund/ self credit cannot be restricted in terms of N/N. 19/2008-CE dated 27.03.2008 and 34/2008-CE dated 10.06.2008 and the appellants are entitled to claim refund/self credit of duty paid through PLA, in terms of N/N. 56/2002-CE dated 14.11.2002 - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1666
CENVAT Credit - cement and steel bars used in the structural foundation to support the power plant - Held that:- The Larger Bench in M/S. MANGLAM CEMENT LTD. VERSUS C.C.E., JAIPUR-I [2018 (3) TMI 1547 - CESTAT NEW DELHI] held that such goods are eligible for Cenvat credit either as capital goods (accessories) or as inputs, in view of various decisions of the Hon’ble Apex court and Hon’ble High Courts referred to therein - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1656
Penalty u/s 11AC - whether the lower authorities were correct in imposing penalties on the appellant under Section 11AC or otherwise for the fraud committed by the appellant in the form of availing credit in PLA without the cheques being honoured by the bankers?
Held that:- The appellant has no case on merits as there is an admission on the part of the partner Shri Manoj Patil that they are ineligible credit in the PLA by depositing cheques which were in the knowledge, will be bounced - both the lower authorities were correct in confirming the demand raised along with interest and appropriating the amount as well as imposing equivalent amount of penalty - Appeal dismissed.
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