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Central Excise - Case Laws
Showing 441 to 460 of 470 Records
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2018 (3) TMI 99 - CESTAT AHMEDABAD
CENVAT credit - M.S. Flats used for earthing and connecting of 66KV Switch yard - pre-fabricated windows and doors used in the factory - Hardener chemicals used mainly for flooring in the factory for holding structural of capital goods - machines tools and accessories for fabrication of capital goods in the factory - Held that: - identical issue decided in the case of Singhal Enterprises Pvt. Ltd. Vs. Commissioner of Central Excise & Customs, Raipur [2016 (9) TMI 682 - CESTAT NEW DELHI], where it was held that applying the “User Test” to the facts in hand, we have no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of ‘Capital Goods’ as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat Credit - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 98 - CESTAT NEW DELHI
100% EOU - Clandestine removal - case of Revenue is that the documents have not been verified properly - Held that: - for limited purpose to examine the genuineness of the documents, we set aside the impugned order and remand the matter to the Original Authority - appeal allowed by way of remand.
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2018 (3) TMI 97 - CESTAT NEW DELHI
Valuation - deduction of notional profit where value of bought out items is included - Department was of the view that the appellant was required to pay duty on the price arrived at after deducting the landed cost of the bought out items and post removal expenses i.e. transportation, insurance, packing, forwarding, stacking, loading and unloading charges - Held that: - Since this material is not manufactured by the appellant but only supplied alongwith pipes, we are of the view that there is no mandate for including the value of such joining material - Since there is no justification in the first place, to include the make of bought out item, there can be no objection to the notional profit being deducted from the assessable value.
Valuation - Includibility - cost of packing and loading charges - Held that: - the split up of various elements of cost are not available on record. Hence, for purposes of re-quantification on the basis of above observation, we remand the matter to the adjudicating authority after setting aside the impugned order who shall redecide the issue denovo.
Appeal allowed by way of remand.
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2018 (3) TMI 96 - CESTAT AHMEDABAD
Clandestine removal - excess stock - Ceramic Glazed Floor Tiles - goods not accounted in the RG-1 register - Held that: - In the Panchnama as well as in the statement though it has been recorded that these goods were found in excess, however nowhere the appellant nor the representative has admitted to have stored this excess quantity of goods meant to be cleared clandestinely without payment of duty, nor any evidence in this regard brought on record by the Revenue.
Penalty u/s 11AC - Held that: - in absence of suppression of facts, mis-declaration etc. penalty cannot be confirmed under the said Provision - penalty set aside.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 95 - CESTAT NEW DELHI
Valuation - includibility - bought out items known as “BPL Kits” - Held that: - identical issue decided in the case of M/s TGL Enterprises Pvt Ltd Versus Principal CCE, Delhi And (Vice-Versa) [2018 (1) TMI 108 - CESTAT NEW DELHI], where it was held that there is no ‘BPL Kit’ commercially known and marketed. The clearances made by the appellant-assessee to the various clients as per their requirement are not any new manufactured product, commercially identifiable as ‘BPL Kit.’ - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 94 - CESTAT BANGALORE
Valuation - abatement of duty - Held that: - It is an admitted fact that the Revenue has not filed any appeal against decision of the Tribunal dt. 03/10/2006 which became final as far as appellants are concerned - further, the Commissioner(Appeals) has wrongly held that determination of ACP was not an issue before the lower authority whereas it was an issue and the commissioner (Appeals) within a period has determined the capacity on provisional basis vide orders dt. 15/06/2198 and 10/10/1999 - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 93 - CESTAT BANGALORE
100% EOU - Refund claim - rejection on the ground of time limitation and also on the ground that the appellant has not fulfilled the conditions laid down under para 3(a) of N/N. 05/2006 - Held that: - in the absence of submission of Shipping Bills/Bill of Export it is not possible to grant the refund as the relevant date for one year of period of limitation has to be computed from the date of Shipping Bill/Bill of Export which has not been done in this case - the case is required to be remanded to the original authority with a direction to the appellant to produce the relevant documents proving the exports for the purpose of claiming the refund - appeal allowed by way of remand.
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2018 (3) TMI 92 - CESTAT AHMEDABAD
CENVAT credit - manufacture of taxable as well as exempt goods - time limitation - Held that: - it is surprising to note both the lower authorities has recorded the findings on limitation against the appellant, only on a very flimsy reasoning that the audit party may not have produced all the records - It is tantamount to nothing but reaching a conclusion that the impugned order is incorrect and liable to set aside.
Penalty - Held that: - the appellant on being pointed by the audit has appropriated since the appellant has reversed on being pointed out by the audit party alongwith interest, no penalty requires to be imposed.
Appeal allowed in part.
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2018 (3) TMI 91 - CESTAT MUMBAI
Recredit/refund - Re-credit of amount of duty paid in excess through PLA - it was alleged that amount wrongly restored as credit without proper authority - Held that: - identical issue decided in the case of M/s. Pushp Enterprises Versus Commissioner of Central Excise Jaipur I [2015 (10) TMI 1651 - CESTAT DELHI], where it was held that suo moto credit can be taken if duty is paid twice as excess duty paid is not a duty and same is deposit - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 63 - CESTAT ALLAHABAD
Valuation - includibility - value of coating - Held that: - the appellant had paid duty on metalized polyester film which was cleared for further coating thereon. In that circumstances, as activity of coating does not amount to manufacture and the appellant has already paid duty on metalized polyester film, therefore, the value of coating is not required to be added in the assessable value of the metalized polyester film - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 62 - CESTAT AHMEDABAD
Recovery of Excise Duty - parts of transformers, cleared under returnable gate passes, but not returned to the factory - Held that: - it is prudent to remand the matter to the adjudicating authority to ascertain the fact whether the items cleared under returnable gate passes and not returned to the factory being used for replacement of worn out pats, are either manufactured by the appellant or credit has been availed on the same.
CENVAT credit - input services - Erectioning and Commissioning charges - clearing and forwarding charges - Held that: - the issue is covered in Alidhara Textile Engg. Pvt. Ltd.’s case [2009 (1) TMI 129 - CESTAT AHMEDABAD] and Clearing and Forwarding service is covered by the judgment of Hon’ble High Court in the Inductotherm Ltd.’s case [2014 (3) TMI 921 - GUJARAT HIGH COURT] - in these cases the services has been held to be input services - credit on both items allowed.
Penalty on the Director - Held that: - the Ld. Advocate submits that no statements has been recorded by the department from him, hrnvr his involvement has not been established, consequently no personal penalty is imposable on him.
Appeal allowed in part and part matter on remand.
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2018 (3) TMI 61 - CESTAT MUMBAI
Interest u/s 11AB of CEA 1944 read with rule 14 of CCR 2004 - CENVAT credit availed prematurely - Held that: - This contingency is relatable not to the time of availment but to the eligibility for availment. In the scheme that is primarily intended to set off the cascading effects of taxation by permitting the drawal from such a pool of credit for discharge of duty/tax obligation, there can be no other interpretation - there is no justification for demand of interest which, under rule 14 of CCR 2004, is recoverable only on wrongly taken/utilized credit - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 60 - CESTAT MUMBAI
Classification of goods - Printed Plastic Cards - whether classified under Chapter 39 or Chapter 49? - Board Circular No.141/52/95 - CX dt. 14.08.95 - Held that: - the impugned goods are printed plastic cards having printed matter as per the requirement of customer. The sample produced before us also to the same effect and further there is no dispute about the identity of the cards. In such case when it is not a plain card, it shall be governed by Section Note 2 of Section VII to the Central Excise Tariff - The Hon’ble Apex Court judgment in case of Metagraphics Pvt. Ltd. v. CCE, Bombay - 1996 (88) ELT 630 (SC) and Tribunal’s judgment in case of Bharat Metal Decorators - 2005 (185) ELT 397 (TRI), Sai Security Printers Ltd. 2006 (199) ELT 121 and CCE, Aurangabad v. Adhunik Plastic Inds. [1998 (1) TMI 129 - CEGAT, NEW DELHI] are absolutely applicable in the given controversy. In all the aforesaid cases the products coming into existence were held to be printing industry products.
The impugned products are classifiable under chapter sub heading 4901.90 and the demand made under chapter sub heading 39 is not sustainable - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 59 - CESTAT MUMBAI
Valuation - inclusion of cost of free supply of drawings - Section 4 of the Central Excise Act, 1944 - Held that: - In principle, as per Rule 6 of Central Excise Valuation Rules, 2000 the value of free of cost drawing used for the manufacture of final product for the customer must be included in the value of automobile parts - However, it is observed that the Adjudicating Authority has taken 0.90% which is overall R & D expenses of M/s Mahindra & Mahindra Ltd. which obviously cannot be the cost of drawing supplied by M/s Mahindra & Mahindra Ltd.
It is also fact that the appellant also did not make any effort to provide the cost of drawing either by obtaining from M/s Mahindra & Mahindra Ltd. or Chartered Engineer certificate, therefore dispute cannot be resolved at this stage in the given facts - the appellant must obtain Chartered Engineer certificate for certifying the cost of each drawing and on that basis the demand can be determined on the cost of such drawings.
Appeal allowed by way of remand.
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2018 (3) TMI 58 - CESTAT ALLAHABAD
Short payment of duty - Whether for calculation of excise duty on the amounts of sales appearing on the credit side of the balance sheet/books of accounts, is to be adjusted with the amount of excise duty shown on the debit side for the calculation of liability of excise duty for the period of assessment under the Central Excise Act read with the Rules and whether duty of ₹ 12,85,084/- is short paid?
Whether the appellant have short paid Excise Duty of ₹ 62,652/- during the period from 2000-01 and 2001-02?
Held that: - the appellant have provided a plausible and correct conciliation as regards the amount of ₹ 12,85,084/- - it is evident from the reconciliation that the appellant have shown correctly the clearance value in their returns, as is evident from Annexure-B to the SCN, at ₹ 4,55,87,015/-. Whereas the clearance value as per the reconciliation is coming at ₹ 4,53,65,172/-. Thus, the appellant have shown correct value of clearance in their excise returns, which does not call for an adverse inference.
There is no error and/or mistake has been pointed out in the calculation submitted by the appellant as per the invoice(s).
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 18 - CESTAT NEW DELHI
Interpretation of Statute - Pan Masala Packing Machines [PMPM] (Capacity Determination and Collection of Duty) Rules, 2008 - The department was of the view that the duty for the month of July, 2009 would come to ₹ 1,20,00,000/- (Rs. 24,00,000/- x 5) as per Rule 6 (4) readwith Rule 9 of the said Rules, whereas the appellants were of the view that they were required to pay duty of ₹ 85,16,130/- only, on pro-rata basis for the period 10/07/2009 to 31/07/2009, as per the fourth proviso to Rule 9 of the said Rules.
Held that: - under the PMPM Rules, the period of assessment is calendar month. It is evident from Rule 5 which provides for determination of capacity on monthly basis and the duty payable per machine is prescribed for each month. Further in several other rules, the reference to determination of duty, abatement of duty is with respect to month. On a conjoint reading of the rules as a whole particularly Rule 9 proviso 4, Rule 8 first proviso, Rule 6 (4), Rule 7, it is evident that the applicable rule in the facts of the present case is Rule 9 which provides for the monthly duty payable on notified goods shall be paid by the 5th day of the same month and an intimation in Form – II shall be filed with the Jurisdictional Authority by 10th of the same month.
Division Bench of this Tribunal in Trimurti Fragrances Pvt. Ltd. [2015 (8) TMI 34 - CESTAT NEW DELHI] in the case of claim for abatement for the period of closure of the factory when the appellant paid the proportionate duty for the period factory was in operation and Department contended that appellant should have paid entire duty for the month and only thereafter should have claimed rebate, where the Tribunal has held that when a new RSP is introduced the fourth proviso to Rule 9 of the said rules would apply and that any other interpretation would make the said proviso redundant or otiose, which is not permissible by law.
The view taken by Revenue is against the provisions of the PMPM Rules, 2008 readwith Section 3A of the Act - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 17 - CESTAT NEW DELHI
Classification of goods - Rovan Poshak Tail - Rooh-e-Gulab Sharbat - respondent classified both items under Tariff Item 3004 9011, as medicaments and availed the benefit of area based exemption under N/N. 49/2003-CE dated 10/06/2003 - SCN were issued alleging that the “sharbat” is rightly classifiable under CETH 21069011 as food preparations and “tail”, under 3305 9019 as preparations for use on the hair - Held that: - Both the products under dispute have medicinal properties as well as other common place properties. The classification of such items is required to be made in the light of the pronouncement of Hon’ble Supreme Court in the case of Naturalle Health Products (P) Ltd. [2003 (11) TMI 69 - SUPREME COURT OF INDIA] as well as Puma Ayurvedic Herbal (P) Ltd. [2006 (3) TMI 141 - SUPREME COURT OF INDIA].
In respect of the “sharbat” he has recorded that it contains various ingredients such as Gulab Ark, SITA (sugar) & Jal (water) which are mentioned in various Ayurvedic Authoritative Texts as having therapeutic use. It is also mentioned in the containers of sharbat that it is to be had as per the dozes of 50ml in a glass of 250 ml of water or as directed by the physician - in the container for tail there is a clear disclaim to the effect that it is not a cosmetic and toiletry preparation but is an Ayurvedic Medicine for curative and preventive therapy. It is also on record that both the products have approval granted by State Drug Licensing Authority and also the Directorate of Ayurvedic and Unani Services, certifying the products to be Ayurvedic Proprietary Medicine.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 16 - CESTAT NEW DELHI
Rebate claim - N/N. F.4(72)FD/Gr.IV/81-18 dated 06.05.1986 - Department was of the view that the rebate so claimed by the appellant is nothing but a form of exemption from payment of CST/VAT and is includible in the transaction value for payment of Central Excise duty - Held that: - N/N. F.4(72)FD/Gr.IV/81-18 dated 06.05.1986 of the Government of Rajasthan has allowed partial exemption from the tax payable in respect of the goods in the course of the inter-state trade subject to the condition attached to the Notification. Since the eligibility can be determined only after knowing the total quantum of goods sold within the State as well as in the course of inter-state trade in a full accounting year, the benefit of the notification is allowed to the appellant only during the assessment.
In the present case, the appellant has claimed that they have paid the CST without the partial exemption at the time of clearance of the goods. But during the assessment of the VAT returns, such VAT paid is taken into account and if the appellant is eligible, the same is adjusted when partial exemption is allowed to the appellant in terms of the VAT Notification dated 06.05.1986. The net result of the assessment for CST is that the CST actually paid is at the partially exempted rate.
The benefit of deduction from transaction value will be restricted to the actual CST paid i.e. at the partially exempted rate.
Appeal dismissed - decided against appellant.
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2018 (3) TMI 15 - CESTAT AHMEDABAD
CENVAT credit - capital goods - M.S. Channels, M.S. Angles, M.S. Beams, M.S. Plates, S.S Plate etc - Held that: - identical issue decided in the case of M/s. Singhal Enterprises Private Limited Versus The Commissioner Customs & Central Excise, Raipur [2016 (9) TMI 682 - CESTAT NEW DELHI], where it was held that applying the “User Test” to the facts in hand, we have no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of ‘Capital Goods’ as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat Credit - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 14 - CESTAT AHMEDABAD
Valuation - appellants argued that they are actually selling the goods at the factory gate and not clearing the same to their depots - Section 4(1)(a) of the Central Excise Act, 1944 - Held that: - Since the sole defence of the appellant that the goods were not sold at the factory gate is unsubstantiated and was never raised before the original adjudicating authority or before the first appellate authority, the same cannot be allowed to be raised at this stage especially when it is seen from the replies made by the appellant before the lower authorities that they had admitted the goods were sold from the premises of consignment agent - there is no infirmity in the manner in which the value has been arrived at by the lower authorities.
Extended period of limitation - Held that: - The appellants are required to assess the value in terms of Central Excise law on the basis of self assessment basis. In case the sales are made through consignment agent, it would not be in the knowledge of the Revenue. It is the duty of the appellant to clearly disclose that no sale is made from the factory but all the sales are made from the premises of the consignment agent - extended period rightly invoked.
Appeal dismissed - decided against appellant.
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