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Central Excise - Case Laws
Showing 421 to 440 of 470 Records
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2018 (3) TMI 177 - CESTAT NEW DELHI
Valuation - subsidy - Department has taken the view that to the extent of the subsidy amount, the appellant has retained the VAT recovered from the buyers and hence such amounts are required to be included in the Transaction Value under Section 4(3) (d) of the CEA - Held that: - In the case of the Schemes under the Rajasthan Government, the subsidy amount is paid in the form of VAT Challan whereas in the case of the Scheme of the MP Government, the same is allowed by way of book adjustment against the tax payable for the subsequent period.
A similar issue has come up before the Tribunal in the case of Shri Cement Ltd. V/s Commissioner [2018 (1) TMI 915 - CESTAT NEW DELHI], where it was held that There is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 176 - CESTAT CHENNAI
Classification of goods - fabric based blinds for window covering - Department took the view that the fabric in question was impregnated with scotch gard, a chemical which surrounds each fibre of the fabric providing an irresistible shield against dust and sail apart from imparting a strain proof quality; that the chemical coating predominantly consists of synthetic polymer and hence the said blinds are required to be classified under CETH 39253000.
Whether the fabric based blinds for window coverings have been impregnated or coated with plastic of Chapter 39, hence do not qualify for classification under CETA 6303 as other articles of textiles and would require to be classified under CETA 39253000? - benefit of N/N. 30/2004-CE.
Held that: - while all plastics are formed by polymerization, every polymer is not a plastic. True, all single fabric synthetic textiles are made from manmade fibres by joining monomers into polymers through polymerization. However, even though a synthetic fibre is a polymer, it is specifically classified under CET Heading 54 of the CETA and not as a plastic under Chapter 39. By the same analogy, every chemical brought about by polymerization cannot be considered as a plastic unless that is formed under external influence by moulding, casting, extruding, rolling or other process and result into shapes which are retained on the removal of the external influence. Discernibly, a chemical which may have a polymeric composition like the impugned scotchgard but which is capable of being poured, sprayed, coated, impregnated and does not have any specific retained shape surely then cannot come within the fold of plastics for the purposes of Chapter 39.
The scotchgard which has been impregnated / coated onto the fabric of the blinds is a licensed product manufactured by 3M. A perusal of the website of 3M informs that the key ingredient of the said material earlier was PER FLOURO OCTANE SULFONIC ACID (PFOS). After some health concerns were raised in respect of PFOS, the key ingredient in scotchgard has been replaced by PERFLOURO BUTANE SULFONIC ACID (PFBS) with chemical formula C4HF9O3S, a chemical compound with a four carbon fluorocarbon chain and a sulfonic acid functional group.
The impugned goods will be required to be considered only as a textile fabric / material, which has been coated with a chemical compound which is not predominant in nature and the fabric per se even after such impregnation will continue to be considered only as a textile fabric. This being so, the made up textile articles made out of such fabric and in particular, interior blinds will be correctly classifiable under CET Heading 6303 as contended by the assessee - the impugned goods will be eligible for duty exemption under Notification No. 30/2004-CE.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 175 - CESTAT CHANDIGARH
Liability of interest - duty late deposited by the respondent for the months May 2015 and June 2015 - sealing of machines - Held that: - the respondent was not having any machine in operation during the period 15.04.2015 to 22.05.2015 and 01.06.2015 to 15.06.2015 in May 2015 and June 2015 as the same had been sealed and deemed uninstalled. As such no duty could be discharged in advance. After intimation to the department, the machine was desealed on 23.05.2015 and 15.06.2015 by Range Officer, and during the last 9 days/last fortnight of the respective months, the machine was put to operation and the duty applicable was paid before the end of the respective months, which is before the 5th of the following month - this Tribunal has repeatedly held that the interest liability does not arise as the machine was unsealed and re-installed only after middle of the month or nine days before of the close of the month.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 174 - CESTAT CHENNAI
SSI exemption - dummy units - clubbing of clearances - allegation is that M/s. SG is a dummy unit of M/s. SPP created on paper for the purpose of fragmentation of value of clearances of both the units so as to wrongly avail SSI exemption - Held that: - it can be seen that M/s. SG for all practical purposes was functioning as dummy unit of M/s. SPP so as to keep the clearances within the limit of SSI exemption - the value of clearances of the impugned goods cleared by M/s. SG during the relevant period has been rightly clubbed with the clearances of M/s. SPP and the demand raised is legal and proper - appeal dismissed - decided against appellant.
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2018 (3) TMI 173 - CESTAT HYDERABAD
Benefit of N/N. 64/95-CE, dated 16.03.1995, as amended - goads cleared to the programme SAMYUKTA for the period 1.06.2006 to 21.8.2006 - Penalty u/r 25 of CER, 2002 - Held that: - The parent N/N. 64/95-CE, dt. 16.03.1995 inter-alia exemption central excise duty on all goods suplied to the programme SAMYUKTA under the Ministry of Defence, with the caveat that the exemption shah not have affect on or after the first day of December, 1999.
The N/N. 1/2006-CE extended the validity of the parent N/N. 64/95-CE, upto Ist day of June, 2006. However, the next notification extending the validity period was 40/2006-CE, dt. 21.08.2006 which extended the validity period upto Ist day of December, 2007. December has taken the view that since the amending N/N. 1/2006-CE cause extension of validity period only upto 01.06.2006, and since there was no further notification was issued for extending the validity beyond 01.06.2006, till N/N. 40/2006-CE was issued on 21.08.2006, duty free clearance under parent N/N/. 64/95CE would not be available for the interim period.
A similar issue had come up before Hon’ble Supreme Court in W.P.I.L Limited Vs. CCE, Meerut [2005 (2) TMI 137 - SUPREME COURT OF INDIA]. The facts were that pumps as well as part thereof which were used far manufacture of power pumps exempted from levy of excise duty since 1978. However, while issuing a consolidated notification No.46/94, incorporating earlier notification dt. 01-03-1994, part of power driven pumps which all along have been exempted, were omitted.
The benefit of N/N. 67/95-CE in respect of impugned goods cleared by the appellant will be available even chewing the period of dispute - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 172 - CESTAT NEW DELHI
CENVAT credit - the service tax was paid by the service provider by reason of fraud, collusion or willful misstatement, etc. and accordingly, as per the provisions of Rule 9(1)(bb) of the Rules, the appellant is not permitted to take Cenvat credit - Held that: - the charges leveled against the service provider regarding fraud, collusion, willful mis-statement, etc. were no more in existence in view of the proceedings dropped by the jurisdictional Commissioner (Appeals). Since the service tax amount in question was not paid by the reason of fraud, collusion, etc., the appellant cannot be denied the Cenvat credit benefit in terms of the Rule 9(1) (bb) of the Rules.
Since the service tax paid by the service provider was availed as credit by the appellant on the basis of the bills raised by him, the benefit of CENVAT credit cannot also be denied to the appellant.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 171 - CESTAT HYDERABAD
SSI Exemption - extended period of limitation - Held that: - the respondent has been regularly informing to the authorities about intention of manufacturing branded goods as well as non branded goods as their own products.
As the matter of the fact, we perused the records produced by the Learned Departmental Representative and notice that factual findings of First Appellate Authority is correct. The Superintendent incharge of assessee had sought classification on this issued in February 2004.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 170 - CESTAT CHANDIGARH
Rectification of mistake - in the remand proceedings while considering the issue of penalty this Tribunal has not considered the fact that the provisions of Section 11AC of the Act for imposition of penalty were not in the statute book before 28.09.1996, therefore, for the period prior to 28.09.1996, no penalty is imposable on the appellant and for that reason the order of this Tribunal dated 28.02.2012 be recalled - time limitation - Held that: - Hon'ble Apex Court in the case of Sunitadevi Singhania Hospital Trust [2008 (11) TMI 249 - SUPREME COURT OF INDIA], held that the limitation will be applicable to the Tribunal for taking suo-moto action for rectification of mistake but the aggrieved party can file an application for rectification of mistake at any time but showing the reasons for causing delay that there has been injustice done to them by the order of this Tribunal - the affirmation of the said order of this Tribunal by the Hon'ble Apex Court is through a non-speaking order, therefore, the same cannot be held that the application for rectification of mistake is barred of limitation - issue of limitation decided in favor of applicant.
Merger of the order of this Tribunal with the order of Hon'ble High Court as well as the Hon'ble Apex Court - Held that: - the order of this Tribunal does not merge with the order of the Hon'ble Apex Court or the Hon'ble High Court. Moreover, the Hon'ble High Court itself has given liberty to the applicant to take appropriate remedy in accordance with law.
Penalty for the period prior to 28.09.1996 - Held that: - the order of this Tribunal dated 28.02.2012 is not correct, therefore, on the aspect of imposition of penalty prior to 28.09.1996, the issue is to be addressed by this Tribunal and only for the said issue, the order of this Tribunal dated 28.02.2012 is recalled.
Application disposed off.
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2018 (3) TMI 169 - CESTAT NEW DELHI
Clandestine removal - The case of the Revenue is based upon such private booklet, panchnama i.e. at site wherein it is indicated that there was shortage of finished goods; confessional statement of one Shri Sharma - Held that: - In the absence of any evidence to show or indicate that this booklet on which reliance has been placed by Revenue to hold that there was clandestine removal for the period 1.9.2001 to 15.9.2001, the entire case of the Revenue falls down in the absence of any corroborative evidence in the form of purchaser or transporter's document to indicate clandestine clearance from the factory premises of the appellant. Besides, this document which is termed as booklet and no other evidence is coming forth from the record to hold that there was clandestine removal of the finished goods. In the absence of any other evidence more specifically positive evidence establishing evasion and the absence of any other material reflecting purchase of excessive raw material, excess consumption of resources, the demand of clandestine removal fails miserably.
The charge of clandestine removal of the goods on the main appellant and consequent penalty on the Director does not stand scrutiny of the law and the demand needs to be set aside - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 168 - CESTAT BANGALORE
CENVAT credit - reversal of service credit taken on management consultancy service pertaining to the unit in the location of area based exemption - Rule 7(b) of the CCR 2004 - Held that: - in the appellant own case Fosroc Chemicals India Pvt. Ltd. Versus Commissioner of Central Excise, Customs And Service Tax Bangalore-LTU [2016 (1) TMI 21 - CESTAT BANGALORE], this Tribunal has considered all the submissions of the assessee which have been raised in the present appeals also by the assessee as well as by the Department and held that In terms of Rule 7(b), the service tax attributable to service used in a unit 'exclusively' engaged in the manufacture of exempted goods is not available. The expression 'exclusively' appearing in the said Rule relates to the unit and not to the service tax.
Appeal disposed off.
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2018 (3) TMI 167 - CESTAT CHANDIGARH
CENVAT credit - engines/pump/frames - denial on the premises that the process undertaken by them does not amount to manufacture - Held that: - As there are contrary views and difference of opinion between the Members, therefore, the matter be placed before the Hon'ble President to refer the matter to the third member to resolve the following issues:- Whether the activity of inspection and testing in respect of the parts for proper alignments of pump set on engines, pump and base frames and packing thereof in master box amounts to manufacture as held by the Member (Judicial)?
Matter referred to Third Member.
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2018 (3) TMI 166 - CESTAT MUMBAI
Classification of goods - Chequered Tiles, Rockard designer Tiles, Plain cement Tiles and Paver blocks etc. - benefit of N/N. 10/2003-CE dt 1.3.2003 - It was alleged that the Respondent has cleared the Chequered Tiles, Rockard designer tiles and decorative Interlocking paver blocks which are not commercially known as “Mosaic Tiles” by misclassifying the same as “Mosaic Tiles” - Held that: - The revenue has not brought any fact on record that the tiles were not Mosaic or commercially not known as Mosaic - the dictionary meaning of “Mosaic” means a picture of decorative design made by the small coloured pieces of stones or tiles into a surface or the process of art of making such pictures or design.
No adverse allegation is appearing in SCN against the Respondent that the Tiles manufactured by them do not fulfill the above criteria of Mosaic - what is important is that the goods under reference must belong to the category of Mosaic Tiles so as to eligible for exemption from duty. The term “Mosaic” is a germ and once the goods belong to the category of Mosiac, the category of goods would not debar it from the category of Mosaic. In the present case the Tiles as per the terminology used are “Chequered”, “Rockard” etc to represent them individual species of the germ “Mosaic Tiles”. If only genus is covered by the exemption and not the individual species in that case no exemption would be available where the genus is named in exemption and not the individual species.
The Hon’ble Court in the case of KEDIA AGGLOMERATED MARBLES LTD. Versus COLLECTOR OF CENTRAL EXCISE [2003 (1) TMI 104 - SUPREME COURT OF INDIA] held that the Tiles in question would merit classification as ‘Mosaic Tiles’ despite the fact that the commercial name of the Tiles was not Mosaic Tiles and were sold by unique name to each product - In the present case following the same analogy of the Hon’ble Apex Court as above, it can be held that an individual tile, which has an inherent well defined visible pattern or design contributed by the marble or stone chips mixed in the cement, is without any doubt, a mosaic tile, notwithstanding the fact that the goods are marketed by the manufacturer by using the Trade Name coined by the manufacturer.
The goods of the Respondent would also merit classification as “Mosaic tiles” and would be eligible for exemption - the individual name of Tiles as Chequered, Roackard or plain tiles would not exclude them from claiming exemption as the goods in question are commercially known as “Mosaic Tiles”.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 165 - CESTAT CHANDIGARH
CENVAT credit - bogus invoices - clandestine removal - Held that: - As the truck which was alleged to have carried the goods and the statement of dealers has been contested and found in favor of the appellant, therefore, cenvat credit cannot be denied on the allegation that they have procured only invoices without supplying the goods to avail inadmissible cenvat credit - credit cannot be denied.
Clandestine removal - Held that: - loose slips recovered from Shri. Bharat Bhushan was required to be explained by him for what purpose these loose slips have been prepared. It is also noted that these loose slips have not been matching with the statement of buyers but they paid duty on the goods received by them. In that circumstances, there is no one to one co-relation in this case, therefore, the demand of clandestine removal is confirmed - penalty reduced to 25%.
Appeal allowed in part.
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2018 (3) TMI 164 - CESTAT BANGALORE
SSI Exemption - assignment of brand name - date of assignment of Brand Name - Held that: - it is settled position of law that once the brand name has been assigned in favor of a person, he will be entitled to clear goods bearing that brand name considering it as his own and will be entitled to the benefit of the SSI Notification - It is not being disputed that the agreement dated 06.10.1998 has granted such assignment but the demand raised is for the period prior to this date i.e. January to September 1998. Upon perusal of the Assignment Agreement dated 06.10.1998, it is seen that in this Agreement there is a reference to the earlier agreement dated 25.08.1997. Further on perusal of a copy of the earlier assignment deed which is on record, we note that the same brand name stands assigned right from 25.08.1997 in favour of M/s Meyer Health Care Pvt. Ltd. Such being the case M/s. Meyer Health Care Pvt. Ltd. will be entitled to the SSI exemption during the disputed period.
There is no dispute for the period subsequent to the assignment agreement, M/s Meyer Health Care will be entitled to the SSI benefit - appeal dismissed - decided against Revenue.
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2018 (3) TMI 163 - CESTAT ALLAHABAD
CENVAT credit - inputs - M.S. Plates, M.S. Rounds, M.S. Angles used as 'Parts/Components for the capital goods' in manufacture of ultimate product - Held that: - it is settled position of law that the components, spares, and accessories need not fall in Chapter-82, 84 and Chapter 85 of CETA. They can fall in any chapter. The only condition is that they should be part, component or accessory of machinery specified in clause (i)-MF (DR) circular No.276/110/96-TRU dated 02.12.1996 - the appellant are held, allowed to avail the credit of ₹ 69,09,550/- on the inputs and as such there is no contravention of Rule 3 of the Cenvat credit Rules, 2004 and no duty or credit is recoverable under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A(1) of the Central Excise Act, 1944.
Interest - penalty - Held that: - no interest at appropriate rate is recoverable under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11AB of the Central Excise Act, 1944 - the Appellant are not liable for penalty under Rule 15 of Cenvat Credit Rules, 2004 for contravention of Rule 3 of Cenvat Credit Rules, 2004.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 104 - KARNATAKA HIGH COURT
Recovery proceedings through garnishee proceedings - Rule 8(3A) of the Central Excise Rules, 2002 - Held that: - this Court is of the opinion that the petitioner- Company, ought to have kept the lis alive by filing the regular appeal before the Tribunal u/s.35 B of the Central Excise Act, 1944 against the impugned order passed by the first appellate authority namely, learned Commissioner of Central Excise (Appeals), Mysore - Petition disposed off.
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2018 (3) TMI 103 - CESTAT CHENNAI
Classification of software - whether the software falling under Tariff Heading 85.24 has to be assessed to duty along with the computerized equipment / machinery or whether it has to be assessed under Tariff Heading 85.24 separately? - Held that: - the issue has been decided in the case of M/s. Siemens Ltd Versus CCE & ST, Pondicherry [2018 (1) TMI 1315 - CESTAT CHENNAI], where it was held that the software which is supplied separately for loading cannot be considered as part and parcel of the machines / equipments - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 102 - CESTAT NEW DELHI
CENVAT credit - various input services related to dumping of waste- denial on the ground of nexus - Held that: - as the waste which arises during the course of manufacture of the final product is required to be dumped by the appellant. Without dumping the waste, no further manufacturing activity can take place and it is essential to dump the said waste as per the direction of Pollution Control Board - although said service has been availed by the appellant post manufacturing, but the same is an integral part of their manufacturing activity - credit allowed - decided in favor of appellant.
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2018 (3) TMI 101 - CESTAT MUMBAI
CENVAT credit - capital goods - drums/barrels - Held that: - inputs used in any activity pertaining to manufacturing process would be entitled to CENVAT credit and likewise the definition of ‘capital goods’ is of sufficiently wide coverage to include storage tanks - There is no dispute that the drums /barrels procured by the appellant and are mobile storage tanks for transporting raw materials from the supplier to the appellant. While this may not conform to the definition of ‘inputs’, it is undeniable that these are, therefore, capital goods - credit allowed - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 100 - CESTAT MUMBAI
CENVAT credit - case against the appellant is that common input services for trading which, with effect from 1st April 2011 was incorporated as exempt service in rule 2(c) of CENVAT Credit Rules, 2004 should not have been availed of in CENVAT credit account - Held that: - No attempt has been made in the SCN to isolate the value of the service on which alone liability under rule 6(3) (i) of CCR 2004 could be applied - It is certainly not the intention of the provision of law to recover an amount of ₹ 4,01,224/- when the benefit derived is limited to ₹ 5,551/- and which was already reversed by the appellant on 26th March 2014.
It is now settled law that reversal of CENVAT credit is no different from non-availment of the credit.
Appeal allowed - decided in favor of appellant.
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