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Income Tax
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2013 (11) TMI 1250
Whether a new claim can be made in the reassessment proceedings The assessee has claimed deduction u/s 80I in the original as well as revised return He has never claimed deduction u/s 80J either in the original return or in the appellate stage - Held that:- Following Commissioner of Income Tax Vs. Sun Engineering Works P. Ltd. [1992 (9) TMI 1 - SUPREME Court] - Where reassessment is made under Section 147 and issuance of notice under Section 148, the Income Tax Officer's jurisdiction is confined to only such income which has escaped tax or has been under assessed and does not extend to revising, reopening or reconsidering the whole assessment and the assessee cannot be permitted to agitate questions which have been decided in original assessment proceedings. The reassessment has to be made only with regard to the subject matter of proceedings under Section 147 - A matter not agitated in the concluded original assessment proceedings also cannot be permitted to be agitated in the reassessment proceedings - The assessee had not claimed deductions under Section 80J of the Income Tax Act in the original assessment and the reassessment proceedings were regarding wrongful deductions under Section 80I - In the reassessment proceedings the assessee was not entitled to claim deductions under Section 80J - The assessee had not claimed the deductions under Section 80J either in the original stage or in the appellate stage Decided against assessee.
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2013 (11) TMI 1249
Incentive/ subsidy on sale of sugar Capital receipt or not Held that:- The amount of subsidy received under the Sampath Scheme was capital in nature - The object and the application of subsidy was relevant - The Sampath Scheme may have provided for incentive for expansion or for setting up new unit but no such expansion or new unit was in contemplation - The subsidy under the scheme was given for repayment of the term loans as the incentive to carry on business in the essential commodity - The receipt was revenue receipt Decided in favour of Revenue.
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2013 (11) TMI 1248
Rectification of mistake - Tax and other statutory liabilities Held that:- The assessee had incurred liabilities in respect of deductions in the assessment year in question i.e. 1984-85. It is also not disputed that the deductions, except dues of PF, are covered under Section 43-B of the Act and thus the first proviso to Section 43-B, with retrospective effect will apply - The dues of PF are also covered by second proviso to Section 45-B which was in force in the relevant assessment year i.e. 1984-85 This is a debatable issue. In the debatable issue proceedings under Section 154 cannot be taken up - Following T.S. Balaram, Income Tax Officer, Company Circle IV. Bombay Vs. Volkart Brothers and others [1971 (8) TMI 3 - SUPREME Court] - A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on debatable point of law is not a mistake apparent from the record Decided against Revenue.
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2013 (11) TMI 1247
Commission to sole selling agent - Reasonableness - Held that:- The constitution of M/s. Laxmi & Co shows Sri L.C. Gupta (HUF) and others were ladies and house wives representing the interest of HUF, they were not in a position to offer any professional advise on matters relating to production, market survey or procurement of orders etc. Sri L.C. Gupta was engaged as Manager (Finance) with the assessee firm - Assessee has taken substantial amount as loan from the relatives including partners of Commission Agent M/s. Laxmi & Co, and had paid a high rate of interest - There was no service provided by the partners of M/s. Laxmi & Co. in respect of manufacture and sale of production to justify huge commission - Decided against assessee.
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2013 (11) TMI 1246
Penalty u/s 271E - Violation of section 269T - Held that:- The assessee has repaid the loan by way of a debit entry in the form of transfer of shares - No repayment was made by either cash, cheque or demand draft - The Institute of Chartered Accountants of India had clarified that loans created/discharged by means of transfer entries do not constitute acceptance or repayment of deposits of loan in cash and thus do not contravene the provisions of Section 269-SS and 269-T - The Assessing Officer, Appellate Authority as well as Tribunal did not consider the method of transaction, which was by way of discharge of the liability of the loan - The assessee was paying interest on the loan regularly as reflected in his statement of affairs and profit and loss account in the financial years 1992-93 and 1993-94 - The repayment of loan was not made after sale of shares. The assessee appellant had debited the account being cost of shares. The transaction between Karta of HUF and the HUF could not be termed as deposits as provided under Section 269-T at the relevant time. The transactions were made between two taxable entities - The repayment was made, by debit entires - The provisions of Section 269-T providing for deposits to be made over and above Rs. 20, 000/- only by account payee cheque or account payee bank draft, were not attracted - Decided in favour of assessee.
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2013 (11) TMI 1245
Remission of Loan Liability - sales tax payable by appellant was converted into loan - Held that:- different benches of the Tribunal have been unanimous in holding that the concession received by the assessee from the state government for repaying the loan amount on an early date, which was liable to be paid on a future date as per the scheme of the government, cannot said to be a case of remission or cessation of liability so as to attract the relevant provisions of the Income Tax Act for taxing the said amount and the same has been held to be a capital receipt. - Decided in favor of assessee. Vehicle Lease Rental - Whether Finance Lease or Operating Lease - Held that:- When we apply the observations/ proposition of the law as laid down by the Hon'ble Supreme Court as reproduced above to the facts of the present case of the assessee, who is a lessee in the case in hand, there remains no doubt in our mind to hold that lease in question in the case in hand can be said to be essentially an operating lease and not a finance lease. - Decision of Apex Court in M/s. ICDS Ltd. Vs. Commissioner of Income Tax [2013 (1) TMI 344 - SUPREME COURT] followed.
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2013 (11) TMI 1244
Disallowance u/s 40A(2)(b) - excessive expenditure paid to related parties - logo fees paid to ATE Enterprises Pvt. Ltd. - Held that:- for making payment of logo brand, which was used by the assessee in its business, it is not necessary that the assessee must have windfall income. - merely because the commission was paid to the payee-company for marketing the products of the assessee, it could not be held that the assessee was not liable to pay logo brand charges when such logo was used in the business of the assessee - In the absence of any material before us to show that logo charges paid at the rate of 1% of the sale value was excessive or unreasonable compared to the market rate and keeping in view the facts that similar logo brand charges was allowed as deduction in its entirety during the earlier years to the assessee, we find no reason in disallowing the logo brand charges paid during the year under consideration. - Decided in favor of assessee. Excessive payment of interest on the deposit - Held that:- the rate of interest to 14% in respect of unsecured loan cannot be held to be so high as to warrant any disallowance under section 40A(2)(b) of the Act, keeping in view the rate of interest, which is charged by the bank in respect of unsecured loan, and even the rate of interest charged by the income-tax department under certain provisions are of 15% per annum. - Deduction allowed - Decided in favor of assessee. Travel expenses - Held that:- it is not necessary that every expenditure incurred by the assessee should result in a corresponding increase in the revenue of the assessee - deduction allowed. Payment made to Advocate for registration of patent rights in foreign countries - revenue or capital in nature - Held that:- the fact that a trade mark after registration could be separately assigned, and not as a part of the good will of the business only, does not also make the expenditure for registration a capital expenditure, that is only an addition and incidental facility given to the owner of the trade mark. It adds nothing to the trade mark itself. - deduction allowed - Decided in favor of assessee.
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2013 (11) TMI 1243
Disallowance on account of non deduction of TDS u/s 40(a)(ia) - payment to various sub-contractors - It was strongly contended that terms "payable" and "paid" are not synonymous. - held that:- provisions of section 40(a)(ia) would apply when the amount is payable and where the expenditure is paid. - Decided against the assessee.
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2013 (11) TMI 1242
Unaccounted investment for the purchase of land - taxability in the hands of individual assessee or company - held that:- the registered sale deed dated 17.10.2007 was not executed between two individuals but it was purchased on behalf of a company, namely, CCCPL, on one hand, from other corporate entities, seven in number, on the other hand. Therefore, the transaction carried out was a well publisized transaction. Rather facts of the case have further revealed that earlier the land in question belonged to certain co-operative societies. Such a sale deed thus cannot be treated as a close-door-deal Suspicion howsoever strong cannot take the place of evidence - those were not even the incriminating material but simply computer generated projectionsheets, therefore, hard to say, synonymous to clinching material evidence depicting cash transaction, hence erroneously suspected by the Revenue Department. We hereby hold that there was no evidence in possession of the Revenue Department to hold that the assessee had in fact made an unaccounted investment towards the purchase of the property. - Decided against the revenue. Deletion of addition by the CIT(A) on account of unaccounted income paid to outgoing surgeon doctors by holding that said amount should be taxed in the hands of the company M/s, CCCPL - Held that:- In a situation when we have already taken a view that there was no element of on money in the purchase of the property in question then in consequence thereof, there was no element of payment of cash to the outgoing doctors. - No addition - Decided against the assessee.
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2013 (11) TMI 1241
Expenditure incurred on rural development - Held that:- AO directed to allow the expenditure of ₹ 5,85,508/- incurred on rural development. - Decided in favor of assessee. Expenses incurred on buy back of shares, claimed as revenue expense - Held that:- The fact that the expenditure is of revenue nature has not been disputed by the CIT(A), who has disallowed the same because according to the CIT(A), there were no cogent reasons - AO directed to allow the expenses. - Decided in favor of assessee.
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2013 (11) TMI 1240
Reassessment u/s 147 read with 148 - held that:- Since originally no assessment was framed u/s 143(3) of the Act and information also came to the Revenue, therefore, revenue had right to reopen the assessment Chargeability of capital gain on the transfer of plot - joint development agreement - taxable in the hands of assessee or society - Held that:- following the decision in Shri Charanjit Singh Atwal [2013 (8) TMI 364 - ITAT CHANDIGARH] the capital gain is taxable in the hands of assessee - decided against the assessee.
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2013 (11) TMI 1239
Disallowance of interest expenditure - held that:- Admittedly, the assessee had paid interest on the borrowings made from its parent company in the earlier years and no fresh borrowings had been made during the year under consideration. The interest expenditure had been allowed in the hands of the assessee from year to year. Further the advances to M/s Hindustan Max G.B. Ltd. were also made in the earlier years and the balance is brought forward from the preceding year on which in the earlier years the assessee was charging interest. However, the interest on the said loan had not been recognized during the year under consideration as M/s Hindustan Max G.B. Ltd. had gone before the BIFR because of financial constraint. - claim allowed - decided in favor of assessee. Prior period expenditure - taxes paid on salary of an expatriate employee working for the assessee - held that:- The liability being crystallized in the year under appeal and having been paid in the year under appeal, is to be allowed as a deduction in the year under consideration. - decided in favor of assessee. Transfer Pricing Adjustment (TPA) - determination of ALP - transactional net margin method - selection of comparable - held that:- fresh transfer pricing study can be conducted by the TPO and in view of the provisions of Rule 10B(4) of Income Tax Rules the data of the relevant year is to be considered for finding the comparables which in turn stand the test of FAR analysis. However, it is the requirement of law that the assessee should be confronted with the said data in order to rebut the new comparables selected by the TPO and also to pinpoint as to why such data should not be used against the assessee. - Decided partly in favor of assessee Business loss - 'export incentive' written off in the Profit & Loss Account. - assessee contended that the same was offered for tax in the earlier years - The case of the revenue is that recovery of the said amount had not crystallized during the year under consideration and the said write off was premature as the issue was still pending for consideration before the Ministry of Commerce. - Held that:- The assessee had written off the export incentives totalling Rs. 76,14,696/- in the financial year 2005-06 i.e. even before the meeting of the Grievance Redressal Committee of Ministry of Commerce. We are of the view that such write off of the export incentive by the assessee during the year under consideration is premature in the abovesaid facts and circumstances of the case and is not an expense relatable to financial year 2005-06. Further, admittedly the assessee has received the said export incentives in the financial year 2007-08 itself establishes the case of the revenue - Decided against the assessee. Write off of export incentives towards DEPB licences received from Kandla SEZ - held that:- the additional evidence filed by the assessee in respect of the copies of application made in respect of the DEPB claim and also the copies of the DEPB licence received by the assessee under which the claim of DEPB was restricted by Kandla SEZ, were not available before the Assessing Officer. Hence, the issue is restored back to the file of the Assessing Officer for the limited purpose of verifying the quantum of the DEPB licence received by the assessee under which its claim was rejected. - matter remanded back.
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2013 (11) TMI 1238
Transfer pricing adjustments - determination of ALP - TNMM method - selection of comparable - Held that:- we find inconsistency in the approach of the TPO with regard to the issue of 'tested party'. On the one hand, the TPO averred that there was no reliable data available for both GMDAT and comparables; however, on the other hand, he had conveniently taken GMDAT as the 'tested party' while making adjustment to transaction relating to payment of royalty by the assessee to GMDAT. This exposes the inconsistency approach of the TPO. - The financial statements of comparable companies have since been audited by the independent auditors and, thus, there can be no reservation in placing a reliance on the same. In consonance with the case laws quoted (supra) and also the United Nation's Practical Manual on transfer pricing, we direct the TPO to adopt GMDAT as the 'tested party' for analyzing the inter-company transactions of the assessee for both the AYs under consideration. To facilitate the TPO to analyze the inter-company transactions in the case of the assessee by selecting GMDAT as 'tested party' as directed above, this issue is restored on the files of the TPO. - matter remanded back.
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2013 (11) TMI 1237
TDS u/s 194C or 194J - assessee engaged the contractors having the expertise in the respective fields - nature of contract - simple works contract or technical services contract - Held that:- Assessing Officer was not justified in treating the contract entered into by the assessee with various parties for exploration or extraction of mineral oil and natural gas as a contract for technical services. The services for mining, obtained by the assessee, were not the technical services. As such the Assessing Officer was not justified in holding that the provisions of section 194J of the Act were applicable because the assessee entered into contract for technical services with the service providers. - Decided in favor of assessee. TDS u/s 194I - payments made to contractors for hiring of crane - Held that:- Assessing Officer treated the crane fitted with truck as plant & machinery and held that the provisions of section 194I were applicable for deducting TDS. However, the provisions contained in section 194I of the Act are applicable for plant & machinery or for land and building or land appurtenant to a building or , plant, equipment, furniture or fittings but as we have already observed in the earlier part of this order that cranes are not the plant & machinery as per the ratio laid down by the Hon'ble Gujarat High Court in the case of Gujco Carriers Vs. CIT (2002 (2) TMI 48 - GUJARAT High Court). Therefore, the provisions of section 194J of the Act were not applicable. - Decided in favor of assessee.
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2013 (11) TMI 1236
Reassessment proceedings - change in opinion - legality of continuation of reassessment as a consequence of issuance and service of notice u/s 148 - held that:- the assessee has duly participated in the proceedings which is a sufficient material having bearing on the legal grounds raised that challenge is to the application of the jurisdiction whereas the fundamental challenge to the assumption of jurisdiction is neither addressed nor contested and thus having pleaded the assessment to be treated as unsustainable in law is unwarranted. - Decided against the assessee.
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2013 (11) TMI 1235
Whether the money transactions carried out through the bank accounts opened in the name of various partnership firms constituted by the employees and relatives of the assessee, belong to the assessee or not? - Held that:- the tax authorities have come to the conclusion, which was not rebutted at all by the assessee, that the partners are men of small means and further they are employees/relatives of the assessee. Hence, in our view, the tax authorities might have thought it not necessary to examine Mr. Kasim and the same, in our view, would not vitiate the conclusions reached by the tax authorities. The matters can be decided in income tax proceedings on preponderance of probabilities, surrounding circumstances, human conduct and circumstantial evidences. In the instant case, the various points listed out by Ld CIT(A), in our view, establishes the connection between the assessee and the bank accounts opened in the name of the partnership firms. In view of the foregoing discussions, in our view, the surrounding circumstances, preponderance of probabilities, conduct of the assessee herein and evidences gathered by the department show that the partnership firms do belong to the assessee and their bank accounts also belong to the assessee. - Decided against the assessee. Additions on the basis of peak credit - Held that:- When the assessing officer has proposed to assess the peak credit amount in assessment years 2002-03, 2003-04 and 2005-06, in our view, it would not be correct on his part to assess the entire amount of deposits as income of the assessee in assessment year 2004-05 alone. In our view, the assessing officer should have assessed the peak credit amount only in the assessment year 2004-05 also. - AO to compute the peak credit amounts of each of the year in accordance with the method discussed supra and assess the peak credit amount in the initial year i.e.,in assessment year 2002-03 and only incremental peak credits in succeeding years. - Decided partly in favor of assessee.
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2013 (11) TMI 1234
Allowability of interest expense on debenture - accrual of interest liability - Such payment was made on 24/03/1995, i.e. the date of allotment in that case, hence the funds were used in that case for only a few days during AY 1995-96. In spite of this, the assessee in that case claimed deduction for the entire amount of interest paid on the date of allotment. The argument on behalf of the Revenue was that this interest should accrue on day-today basis - Held that:- the entire interest payment made in the initial year of allotment cannot be artificially spread over the period of six years for the purposes of allowing deduction. - no part of this interest expenditure is disallowable whether it is covered by 43B or not. - Decided in favor of assessee. Project expenses written off - Held that:- in the interest of justice, this matter should go back to the file of CIT(A) for a clear finding regarding the facts - matter remanded back. Depreciation on Wind Turbine Generating Sets - Held that:- the term use has a wide connotation and even trial production of a machinery would fall within the ambit of used for the purpose of business. It was also held that the Statute does not prescribe a minimum time-limit for use of the machinery and hence the assessee cannot be denied the benefit of depreciation on the ground that the machinery was used for a very short duration for trial run - Decided against the revenue. Depreciation on machinery purchased and leased by the assessee - Held that:- even the transaction is apparently genuine as the equipment was purchased by M/s.PIL from TISCO. Thus, it would not be proper to disallow the depreciation claimed on these assets in respect of which sale and lease back transaction was entered into. The claim of the appellant is, therefore, allowed - Decided against the revenue. Interest expenses - disallowance of claim under sec.43B - Held that:- BIFR is only to consider various extra benefits to be allowed to the assessee which is sick company, but not for curtailing any benefit allowable to the assessee as per law. Since there is no question raised by the ld.DR of the Revenue regarding allowability of the claim of the assessee as per law, the same cannot be denied to the assessee on the basis of a letter of Directorate Income-tax before BIFR which is also agreed by the assessee before BIFR - Decided against the revenue. Deduction u/s 80M - Held that:- t in addition to receiving eight dividend warrants, the decision making is also required as to whether the investment is to be retained or to be sold out and, therefore, some expenses had to be reduced from dividend income on account of administrative expenditure, etc. But in our considered opinion, estimate of the AO at 5% of the dividend income is excessive and considering the facts of the present case, we are of the opinion that 0.5% expenditure will be sufficient to take care of administrative and management expenses in respect of dividend income. - Decided partly in favor of revenue.
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2013 (11) TMI 1233
Conversion of shares from "stock-in-trade" to "Investments" - Business loss or speculation loss - revenue contended that conversion of shares having been made to avoid application of Explanation to section 73 - Held that:- The bonafides of the assessee are demonstrated by the fact that only 1/3rd of the shares converted into investments only part of the shares so converted were sold during the previous year and even in respect of shares held as stock in trade, there was a loss on sale of such shares during the relevant previous year also. At the time of conversion of shares, the assessee could not have known that the prices would fall subsequently. - order of the Ld. CIT(A) accepting the conversion of the stock in trade into investment is upheld - Decided against the revenue. Set off of losses - sale of shares after conversion - held that:- Income of the assessee from capital gains and house property during the relevant previous year is more than the business income and therefore, the assessee's case fall within the exclusion contained in Explanation to section 73 of the Act. In view of the aforesaid, the loss arising on the sale of shares held as stock in trade has rightly been allowed by the ld. CIT(A) - Decided against the revenue. The order of the Ld. CIT(A) deleting the disallowance of expenditure relating to expansion of healthcare division is upheld. Payment of Non-Compete Fee - held that:- the assessee's business interest would have suffered if the ex-employee, who was in a senior position and was well conversant with and in fact instrumental in setting up the above business initially, would have come in competition with the joint venture companies, in which the assessee had substantial interest. The assessee may also have been liable to joint venture companies. Thus, the non-compete fee was paid on account of 'commercial expediency' and was rightly allowed revenue deduction by the A.O - Decided against the revenue. Depreciation @ 60% on medical equipment as computers - Held that:- computer controlled medical equipment can not be equated with computers - normal depreciation to be allowed - Decided in favor of revenue. Depreciation @ 25% on building used as Nursing Home treating the same as plant and machinery - Held that:- the claim of the assessee is fully supported by the decision of the Hon'ble Supreme Court in the case of Dr. B. Venkata Rao (1999 (2) TMI 11 - SUPREME Court). Disallowance u/s 14A - Held that:- it would be appreciated that the Assessee had substantial surplus interests free funds, which were sufficient to cover additional investments in shares made during the year and, therefore, there was no nexus of interest paid on borrowed funds with the said investments in the Assessment Year 2001-02. - there was no proximate nexus of borrowed funds with investment in shares, warranting disallowance under Section 14A. - Decided against the revenue. Disallowance u/s 14A read with section 115JB - held that:- the amount of disallowance of other expenditure i.e. other than interest expenditure computed u/s 14A can be adopted for the purposes of addition to book profit u/s 115JB of the Act - decided partly in favor of assessee.
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Customs
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2013 (11) TMI 1232
Non examination of witness - Violation of principle of natural justice - Held that:- no reason to justify rejection of request made by the appellant to the adjudicating authority in light of section 138B of the Act, to summon witnesses for examination and to offer them for cross-examination if their statements were to be considered as relevant and admitted in evidence in the interest of justice - The appeals are therefore allowed with direction to the Respondent adjudicating authority to follow section 138B and to forthwith summon the witnesses for examination under intimation to the appellant, and to offer them for cross-examination by the appellant if their statements are to be considered as relevant and admitted in evidence in the interest of justice. The appellant is also entitled for Cross-examination of the Chief Chemist (EC), DGH. The Appellant shall also extend its full co-operation in expediting the adjudication process so that it can be completed within the time as directed by the Honble High Court - denial of request to permit cross-examination of the Chief Chemist (DGH), whose opinion is relied in the show cause notice, is also wholly unjustified - Decided in favour of assessee.
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2013 (11) TMI 1231
Import of gold sovereigns - Appellant failed to produce any documentary evidence in support of licit acquisition/possession and/or importation of the said gold sovereigns, and also reasonably explain the possession of the said currency, the gold sovereigns were seized by the officers on the reasonable belief that these were smuggled and liable to confiscation under Customs Act, 1962 and also for contravention of the provisions of Gold Control Act, 1968 - Confiscation u/s 121 - Seizure u/s 119 - Penalty u/s 112 - Held that:- apparently it may appear plausible answer that such sovereign gold coins bearing inscriptions of period prior to independence might have been possessed by his family members prior to independence, but when the officers, on a specific information initiated investigation and questioned about its licit possession on its seizure from the possession of the appellant in a bullion market, not from his house or any of his or family members bank lockers. Burden is heavier on the Appellant to establish the licit possession of the said gold coins through cogent and reliable evidences. However, on analysis of the evidences on record, I find that the approach of the appellant is ambivalent and incoherent. Initially when the goldcoins were recovered from his possession, while he was in a bullion shop, his instant reaction was that the gold coins had been procured by him from the open market but failed to disclose the name of the shops/vendors. Similarly, the explanation on the possession of Indian currency as proceeds of sale of silver, were on investigation later found to be false. Thus, the Appellant has miserably failed to discharge the burden and also in establishing the second line of defense that it belonged to their family properly which fact has been found to be untrue from a categorical statement dated 12.6.1987of his elder brother, which the Appellant never disputed not the same has been retracted at any point of time. Mere declaring the value of the gold coins and reflecting the same in their Income Tax Returns would not ipso facto establish that these gold coins were acquired/possessed licitly by him. Also, ongoing through the said Income Tax Returns, I find that the same were filed after the date of seizure of the gold coins, hence, could not be of much assistance to the claim of the Appellant that these were their family property. Besides, I agree with the Ld. A.R. for the Revenue that exoneration from the charges under the Gold Control Act, would not automatically be applicable to the proceedings initiated under the Customs Act,1962 as the object and purpose of these Acts are different - Following decision of ANNAPURNA YARN FABRICS Versus COMMISSIONER OF CUS. (PORT), KOLKATA [2002 (5) TMI 178 - CEGAT, KOLKATA] - Decided against assessee.
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2013 (11) TMI 1230
Import of Shredded Steel Scrap - Consignment found to contain broken goods - Penalty u/s 116 and 112 - Held that:- Revenue has not brought out anything on record to show that the shipping line was aware of the mis-declaration regarding the contents of the containers. It is not in dispute that the containers were brought with seals intact. It is also evident that the importer and the shipper agreed that the mis-declaration of cargo happened before the goods were placed on board and not in the custody of shipping line. Against such facts and circumstances this is not a case of short landing but is more appropriately to be considered a case of short shipment. Based on such facts and considering the decisions of the High Courts cited by the Counsel especially that in Shaw Wallace & Co. Ld (1986 (7) TMI 106 - HIGH COURT OF JUDICATURE AT BOMBAY) the impugned order passed against the appellant is not maintainable - Decided in favour of assessee.
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2013 (11) TMI 1229
Smuggling - Import of bulk (commercial) quantity of Chinese silk textiles - Import done in contravention of provisions of Customs Act, 1962 - Import prohibited/restricted goods under Para 5.6 EXIM Policy 1997-2002 read with Section 3(2) and (3) and 11(1) of Foreign Trade (Development and Regulation) Act, 1992 and Rule 14 of the Foreign Trade (Regulation) Rules 1993 - Confiscation u/s 111 - Whether the appellants, who are the dealers in textiles and are alleged to have purchased illicitly imported Chinese Silk fabrics, are liable for penalty under section 112(b) of Custom Act 1962 - Held that:- Revenue proved acquaintance, contacts, conscious knowledge of the appellant including the nature and character of the offending goods dealt by him - conscious knowledge of the trader appellant about character and nature of the goods illicitly imported and his deal theron was established by the seller racketeers. His ill will and deal satisfied essential ingredients of section 112 (b) of the Act. The appellant was aware of the origin and destination of goods demonstrating his intimacy with the racketeers by telephone contacts before and after arrival of the smuggled goods in India which come to record from Table 10 and 11 of show cause notice. Positive act of the appellant making conscious breach of law brought him to penal consequence of law. Perfect proof with mathematical precision in this imperfect world seldom exists. Appellant did not deny conscious dealing of the offending goods by him. In substance, offending goods found its destination at the place of business of the appellant. Accordingly when the appellant failed to go out of the scope of Section 112 (b) of the Act, penalty was bound to be suffered. It is only the quantum thereof needs determination on the gravity of the matter since value of goods dealt by the appellant was not quantified by learned Adjudicating Authority. Considering that the appellant was involved in dealing with the smuggled goods came to in India on 22 occasions as per column A of Table -14, in the fitness of the circumstances of the case, levy of penalty of ₹ 10,000/- for each such occasion may not be improper. Interaction was not for supply of Indian goods but for purchasing foreign goods and therefore it is difficult to accept the contention of the appellants that they did not have knowledge of smuggled nature of goods and this contention is rejected. Since the commissioner in his order has held the goods mentioned in Colum-3 of Table-1 liable for confiscation under Section 111 of the Act, the appellants are also liable to penalty under Section 112(b) of the Act - Penalty redeuced - Decided partly in favour of assessee.
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2013 (11) TMI 1228
Valuation of goods - Mis declaration of goods - Reduction in value of goods - Held that:- there was a genuine cause for reduction in the price of the imported vessel and the seller was also convinced that there is need for reduction in the price earlier agreed and accordingly accepted the lower price negotiated between the seller and the appellant. Section 14 of the Customs Act, 1962 also talks of the price which is either paid or payable to the seller. In this case, both the amounts paid and payable as per addendum dated 08.12.1997 was US $ 929388.60. It will be improper if importer is asked to pay customs duty as an amount more than what was the consideration for the transaction. There was a genuine reason for reduction of the price on certain facts which came to the knowledge of the appellant after importation. The actual transaction value paid as per the addendum dated 08.12.1997, is genuine and is required to be accepted for assessment purpose in the case of the appellant - Decided in favour of assessee.
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Corporate Laws
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2013 (11) TMI 1227
Violation of provisions of section 163 of Companies Act, 1956 - Refusal to grant inspection of the Register of members and annual returns - Held that:- Petitioner withdrew the application before the CLB as the importance of the documents and the information did not survive now and that even if the matter were to be decided, the information he had earlier sought had lost all meaning. His application, therefore, stated that he was not pressing the same - The petitioner had sought inspection of the documents before the CLB. The parties had argued the entire matter before the CLB. The CLB reserved its orders. The petitioner has furnished no details on affidavit as to why he chose to abandon that application. He tendered in this Court a copy of the application in this regard before the CLB. The same, however, does not contain any particulars as to why the documents were of no importance any longer. Had the CLB decided the matter one way or the other, it may have had a bearing on the result of this Writ Petition. As a result of the petitioner having abandoned the proceedings before the CLB, he now wishes to and indeed would have to re-argue even the question as to whether he was entitled to inspection under section 163 - This is an attempt at forum shopping - Decided against petitioner.
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Service Tax
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2013 (11) TMI 1260
Stay application - CENVAT Credit - Whether assessee is entitled for input service credit for services rendered by them such as works related to cane development, cleaning of yard, cane supply work, cane or planting by tractor, labour for cane area survey - Held that:- stated service have been provided to the party either for welfare of sugarcane growers or works related cane cultivation and welfare measures. Any service provided for welfare of sugarcane grower and sugar cultivation is only to improve the condition for growing sugar and directly or indirectly has no concerns with manufacture of their final products - it is clear that these activities do not fall under the definition of service and are not eligible for input service credit - Prima facie case not in favour of assessee - Stay denied.
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2013 (11) TMI 1259
Stay application - Construction of residential complexes - Held that:- Prima facie, considering the facts of this case and the decision in the case of LCS City Makers (2012 (6) TMI 363 - CESTAT, CHENNAI), we are of the view that there is tax liability to be paid by the applicant - Prima facie case not in favour of assessee - Stay granted partly.
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2013 (11) TMI 1258
Online information and database access and or retrieval service Penalty u/s 75A, 76, 77 and 78 of the Finance Act, 1994 Held that:- Service tax is new legislation and debated only of late, there is no room for suppression or intent to evade payment of service tax - The service will fall in the ambit of service tax levy - At the same time, it is reasonable to expect that the appellants, who made their foray with these services only in October 2001, would, at least in the initial years, concentrate their efforts into making their entrepreneurship a success - any omission to suo moto come forward and discharge their service tax liability could very well have been due to ignorance of the liability or bonafide confusion concerting the taxing provisions or a combination of both but certainly not with intent, by suppression or concealment - The benefit of doubt must be extended to the appellant - reasonable cause for the failure on the part of the assessee in discharging their duty liability - this is a fit case for invocation of the provisions of Section 80 of the Act and revoke the penalties imposed. The Commissioner has merely observed that the appellant failed to pay service tax in accordance with the provision of Finance Act, 1944, and a penalty u/s 76 is liable to be imposed - But, in other appeal, Commissioner (Appeals) had discussed in detail for invoking Section 80 of the Act the finding of the Commissioner (Appeals) is proper and reasonable - after this proceedings, the appellants have been paying service tax regularly thus the penalty imposed under Section 76 is not sustainable.
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2013 (11) TMI 1257
Waiver of CENVAT Credit - Availment of CENVAT Credit on the Service Tax paid on various input services used in the maintenance of capital goods - Held that:- Applicant had availed CENVAT Credit at their Jamuria Unit contrary to the procedures laid down under the CENVAT Credit Rules, 2004. In these circumstances, we direct the Applicant to deposit 25% of the CENVAT Credit of Rs.62,50,685/- within 8 weeks from today and report compliance on 05.08.2013. On deposit of the said amount, the balance dues adjudged would stand waived and its recovery stayed during pendency of the Appeal - Prima facie case not in favour of assessee - Stay granted partly.
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2013 (11) TMI 1256
Waiver of pre deposit - Penalty u/s 78 - Held that:- amount of service tax of Rs.13,80,351/- paid by the applicant, during the course of adjudication proceeding, the initial demand of Rs.95,75,400/- was reduced to Rs.82,87,547/- by the adjudicating authority. The Ld. Consultant pleaded that the applicant is a partnership firm and incurring heavy losses. In these circumstances, the applicant is directed to make a pre-deposit of Rs.25.00 Lakhs within a period of Twelve weeks and report compliance on 02/09/2013. On deposit of the said amount, pre-deposit of the balance dues adjudged would stand waived and its recovery would be stayed during pendency of the appeal - Stay granted.
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2013 (11) TMI 1255
Recovery of CENVAT Credit - Special Additional Duty of Customs - reversal of cenvat credit shown in the revised return which was filed belated - Held that:- The claim of the Applicant is that they had already reversed the said wrong Credit along with the interest and reflected in the revised return filed with the Department. Prima facie, we find that the ld. Commissioner though did not dispute about the said reversal of the CENVAT Credit wrongly availed by the Applicant, but rejected the payment on the ground that since in the original return, there was no reversal or withdrawal of CENVAT Credit, the subsequent reversal in the revised return which was filed beyond the stipulated period, could not be accepted. Prima facie, we do not find any substance in the said observation made by the ld. Commissioner. In these circumstances, as the reversal of CENVAT Credit has not been in dispute, we find that the Applicant could able to make out a prima facie case for waiver of predeposit of the dues adjudged. Accordingly, the pre-deposit of the dues adjudged is waived and its recovery stayed during pendency of the Appeal - Stay granted.
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2013 (11) TMI 1254
Waiver of pre deposit - Renting of Immovable Property Service - Held that:- amount pertains to renting, which was provided prior to 1-6-2007 but payment was received after 1-6-2007 - Waiver of pre deposit on account of the Renting of Immovable Property Service granted, during the pendency of the appeal - Stay granted. Real Estate Agency Service - Held that:- it is a transaction, where the applicants have intended to purchase the property and later, they did not intend to purchase the same but the consideration was received from relinquishment of the title in the property, which may not amount to service. Accordingly, the applicants have made out a prima facie case of waiver of pre-deposit of the entire amount confirmed against them under the category of Real Estate Agency Service, we grant such waiver and stay recovery thereof during the pendency of the appeal - Stay granted. Business Auxiliary Service - Held that:- it is a transaction for sale of shares of the company, therefore, the assessees are not liable to pay service tax under the category Business Auxiliary Service. Accordingly, we waive the requirement of pre-deposit of the entire service tax, interest and penalty and stay recovery thereof during the pendency of the appeal - Stay granted. Denial of CENVAT credit - Availment of CENVAT credit on Construction of Immovable Property prior to 1-6-2007 but on the premise that the Renting of Immovable Property Service has come into force only with effect from 1-6-2007 - Held that:- when the applicants took the input services at that time Renting of Immovable Property Service was not under the tax net. The applicants have not made out a case for 100% waiver of pre-deposit of the entire amount of service tax, interest and penalties on this count - Stay granted partly.
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2013 (11) TMI 1253
Penalty u/s 78 - Benefit of Section 80 - The original authority appeared to had been carried away by the rigour of law while dealing with the assessees plea for the benefit of Section 80 - Held that:- The benefit of Section 80 would accrue to the assessee - The assesse had shown sufficient cause for their defaults Penalty u/s 78 set aside - he had depended on his accountant as he (Managing Partner) was busy pursuing his Ph.D. with since February 2007 - because of his preoccupation with his studies, the Managing Partner depended on his staff members in matters pertaining to payment of service tax - It was also on record that, since he was alerted by the department, he started taking steps like filing of returns, payment of service tax, payment of interest, etc. He managed to pay up all dues before show cause notice was served on him - sufficient cause was shown by the assessee for exoneration from payment of penalty under Section 78 Decided in favor of assesse.
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2013 (11) TMI 1252
Short Payment of Service Tax Exemption from Penalty u/s 76 - The total demand of service tax and education cesses and the total amount appropriated towards such demand - Obviously, the duty amount survived as a demand yet to be honoured by the assessee - Therefore, the exemption from penalty under Section 76 claimed by the learned counsel on the basis of Section 73(3) of the Act read with the second explanation thereto is prima facie untenable - Such exemption cannot be claimed where a part of the demand of service tax survives and the assessee has prayed for setting aside the entire demand of service tax. Waiver of Pre-deposit - The assessee had contested the entire demand confirmed against them by the adjudicating authority assessee submitted that the entire tax liability was conceded - Even after this, the fact remains that an amount remained to be paid towards service tax and education cesses. In this scenario, one has to fall back upon Section 76 of the Finance Act - the quantum of penalty was not forthcoming in the order - The impugned order only says that the assessee should pay a penalty of Rs. 200/- per day or at the rate of 2% of service tax per month, whichever was higher, till the date of actual payment of the outstanding dues of service tax - there will be waiver of pre-deposit and stay of recovery as prayed for.
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Central Excise
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2013 (11) TMI 1226
Cenvat credit taken on bogus invoices - The invoices issued by M/s Pasondia Steel to M/s Rishav Trading and M/s Bansal Structural were bogus invoices, the further invoices issued by the registered dealer on the basis of M/s Pasondias invoices would, without any doubt, also be bogus invoices without receipt of any material - The availability of Cenvat credit is linked with the actual receipt of the goods covered under an invoice - Once it is proved that the invoices on the basis of which the credit had been taken, were bogus invoices and under those invoices, no goods have been supplied, the Cenvat credit would not be admissible order set aside Decided in favour of Revenue.
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2013 (11) TMI 1225
Eligibility for capital goods cenvat credit under Rule 6 (4) of the Cenvat Credit Rules - Capital goods used exclusively for manufacture of exempted final product - Held that:- It cannot be said that the capital goods were being exclusively used in the manufacture of final product and hence the provision of Rules 6 (4) of Cenvat Credit Rules, 2004 would not be applicable - CCE Mangalore vs. Rajashri Packages Ltd. [2011 (3) TMI 732 - KARNATAKA HIGH COURT ] - When the use of capital goods for manufacture of refined vegetable oil from canola vegetable oil, a dutiable by-product also emerges, cenvat credit cannot be denied in respect of the capital goods on the ground that the main product - refined vegetable oil was fully exempted from duty, as this is not a case where capital goods have been used exclusively in the manufacture of exempted final product Decided against Revenue.
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2013 (11) TMI 1224
Clandestine removal of sugar or not - Empty bags dated last year cleared in the present year without changing of the year on the bag Held that:- The appellant explained that very often empty bags of the previous sugar season are also used and while using the empty bags of the previous sugar season, the labourers have not changed the year - the explanation given by the appellant is plausible - Just because 5577 bags were bearing the markings of the previous sugar season, the same cannot be assumed to be the unaccounted production of those years and on this basis, the shortage of equal number of sugar bags of the sugar season 2000-2001 cannot be presumed and duty cannot be demanded on this basis when there is no other evidence regarding unaccounted manufacture or clandestine clearance order set aside Decided in favour of Assessee.
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2013 (11) TMI 1223
Admissibility of Deemed credit - Cash Refund on accumulated cenvat credit under Rule 5 of Cenvat credit Rules - Clearances made for home consumption where aseessee did not utilize the credit and paid duty - Whether the deemed credit would be admissible in respect of grey fabrics purchased from the market and subjected to processing Held that:- Deemed credit would be admissible in respect of grey fabrics received by a processors for manufacture of processed fabrics cleared on payment of duty for export under bond. The Audit party of C & AG had raised an objection that since the grey cotton or manmade fabrics are not declared in the respective notification, the deemed credit would not be admissible - The objection had not been accepted by the department on the ground that in terms of the provisions of Cenvat Credit Rules, deemed credit would be admissible to the manufacturer of final products even if the declared inputs were not used directly by such manufacturer - the Government itself has now accepted the position that deemed credit would be available in respect of grey cotton /man made fabrics received by the processor for processing for export under bond or for clearance for home consumption There was no infirmity in the order Decided against Revenue.
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2013 (11) TMI 1222
Addition of advertisement and publicity expenses in the assessable value of soft drinks - Penalty set aside on the ground that the ingredients for imposition of penalty on M/s. Coca Cola India Ltd. under Rule 209 A of the Central Excise Rules are absent Held that:- The assessee had neither acquire possession of the excisable goods nor were concerned in removing, depositing, keeping, concealing, selling or purchase of the goods manufactured by Varanasi Bottling Co. - Just because, they partially reimbursed the advertisement expenses incurred by Varanasi Bottling Co. the assessee cannot be said to be concerned in dealing with the excisable goods manufactured by M/s. Varanasi Bottling Co. in any other manner under Rule 209 A of the Central Excise Rules, 2002, as the terms in any other manner has to be construed in enjusdem generis with the preceding terms Decided against Revenue.
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2013 (11) TMI 1221
Bar of limitation Relevant date - Whether the limitation period prescribed under Section 11B would be applicable for cash refund under Rule 5 of the Cenvat Credit Rules, 2002 Refund claim on accumulated cenvat credit under Rule 5 of the Cenvat Credit Rules, 2002 Held that:- Following STI India Ltd. vs. CCE, Indore [2008 (10) TMI 246 - HIGH COURT OF MADHYA PRADESH AT INDORE] - the strict law of limitation provided in Section 11B of the Central Excise Act would not apply to the claim of refund claimed pursuant to notification issued under Rule 57F - Para 6 of the Notification No. 11/2002-CE (NT) dated 1/3/02 issued under Rule 5 of the Cenvat Credit Rules, 2002, simply provides that the application for cash refund of accumulated Cenvat credit is required to be filed to the Assistant Commissioner/Jurisdictional Deputy Commissioner before the expiry of the period in the Section 11B of the Central Excise Act. It does not mention any relevant date Order set aside Decided in favour of Assessee.
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2013 (11) TMI 1220
Invocation of Rule 8 of the Central Excise Rules, 2002 - Cenvat credit wrongly taken Credit reversed by the assessee when came to know about the wrong availment Held that:- The appellant paid the duty through by wrongly utilising the Cenvat Credit earned in the month of April 2007 - This error on the part of the appellant was noticed by himself and made good in April 2008 along with interest and thereafter, the appellant intimated to the department after rectifying the error committed - it cannot be said that the appellant deliberately defaulted in payment of excise duty - the appellant wrongly availed the Cenvat Credit payment of duty under Rule 14 of the Cenvat Credit Rules provides for recovery of Credit wrongly taken or utilized - the appellant has reversed the credit and made good the wrongly availed credit along with interest thereon. - the provisions of Rule 8 of the Central Excise Rules, 2002 are not at all attracted - the confirmation of duty demand under Rule 8 is not sustainable in law the assessee has made good the wrongly availed Cenvat Credit along with interest, imposition of penalty is totally unwarranted - For the contravention of the Cenvat Credit Rules, 2004 the penalty as provided under Rule 15(3) of the Cenvat Credit Rules should suffice Decided partly in favour of Assessee.
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2013 (11) TMI 1219
Imposition of Penalty u/s 11AC of Central Excise Act,1944 - Shortage of stock Assessee accepted the said shortage in the stock and agreed to discharge the duty Held that:- The contention of the assessee accepted that the shortages could be on account of various factors, including the practice of determining the weight on applying average weight of each bundle - In absence of cogent evidences or admission of removal of goods clandestinely from the factory without payment of duty, the ingredients of Section 11AC of the Central Excise Act. 1944, are not attracted - Penalty has not been proposed under other provisions of Central Excise Act or the Rules made thereunder, except under Section 11AC of the CEA,1944 - as penalty is not imposable under Section 11AC of CEA,1944 and in absence of proposal of penalty under any other penal provisions, thus, no penalty could be imposed on the Appellant for the shortage order set aside to the extent of confirmation of Penalty Decided partly in favour of Assessee.
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2013 (11) TMI 1218
Suo motu re-credit availed Non-compliance of the Procedures of Central Excise Act, 1944 Penalty under Rule 15(1) imposed Held that:- Following BDH Industries Ltd. vs. CCE(Appeals), Mumbai-I [2008 (7) TMI 78 - CESTAT MUMBAI] Suo motu credit is not permissible - All types of refund claim be there of excess duty paid or otherwise are to be filed under Section 11B and have to pass the proof of not passing on the incidence of duty to others - There is no evidence/material brought on record by the Revenue that suo motu recredit had been availed by the Appellant with a mala fide intention - Penalty under Rule 15(1) of the CENVAT Credit Rules, 2004 on the Appellant is unwarranted and unjustified - Thus, the imposition of penalty under Rule 15(1) of the Rules set aside - Decided partly in favour of Assessee.
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2013 (11) TMI 1217
Unjust enrichment - Whether the amount whose refund granted by the adjudicatory authority can be hit by unjust enrichment or not during investigation appellant deposited an amount of ₹ 18,75,000/- under protest by debit entries in the cenvat credit account - Held that:- The provisions of Section 11B would be applicable to a refund claim only if the claim is for refund of excess Central Excise duty paid - The bar of unjust enrichment is prescribed in 1st proviso to Section 11B (2) - The provisions of Section 11B and hence the principle of unjust enrichment would not be applicable to the refund claims of amounts which are not duty -like refund of excess fine or penalty or refund of pre-deposit paid under section 35 F on the direction of the Appellate authority where subsequently the assessees appeal is allowed - The refund is sought of the unappropriated amount left after adjusting the duty and penalty from the provisional deposit - The amount is not even duty and hence there is no question of applying the provisions of Section 11B and the principle of unjust enrichment for its refund - This amount should have been refunded without even refund application. Revenues contention is that the amount of excise duty is included is cost of goods in the year 2001-2002. But I find that out of the ₹ 18,75,000/-, ₹ 8,40,120/- has already been paid and adjusted by the Department without considering the cost structure of goods. Therefore is my view that bar of unjust enrichment cannot be now applied to rest of ₹ 10,34,880/- in this case. - Decided in favor of assessee.
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2013 (11) TMI 1216
Condonation of Delay Cross examination of witnesses or inspector - Assessee contended that the limitation period has to be counted from the date of communication of the order Held that:- The order in appeal was passed by the Commissioner (Appeals) and sent to the assessee on the available address under the normal course under registered AD - the appellants factory was lying closed and the said registered AD was received back to the department with the remarks closed - the field officer was sent to serve the order to the appellant - As the factory was lying close, there was no responsible person available in the factory as per proceeding drawn under panchnama - The officer alongwith witness at the request of the officer accompanied to the residence of the director of the company - he was not found in his residence premises, the order was pasted at the main door of his residence assessees have not been able to show any reason to doubt the correctness or authenticity of panchnama there was no merits in assessees prayer for cross examination of witnesses or inspector - the order was served upon the appellant on 15.7.2006, in which case the appeal filed on 12.1.2011 would be barred by limitation Thus, the application for condonation of delay rejected Decided against Assessee.
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2013 (11) TMI 1215
Removal of goods from the premises of Job worker - Liability to pay duty as per Rule 4(5)(a) of Cenvat credit Rules, 2004 on Waste and scrap brought back and cleared - Condition of return of waste and scrap Held that:- Following Mahindra Hinoday Industries Ltd. Vs. CCE Pune-I [2011 (9) TMI 139 - CESTAT, MUMBAI] - The principal manufacturer who has supplied the inputs as such or partially processed, to job workers for further processing cannot be fastened with the duty liability on the waste and scrap generated at the job workers premises and said liability falls on the job workers who have actually manufactured the waste and scrap. The loss on account of waste and scrap is only 2% which has not been argued to be unreasonable by the Revenue - There is also no binding clause in Rule 4(5)(a) of CENVAT Credit Rules, 2004 that any loss of inputs by generation of waste and scrap has to be compensated by reversing equivalent credit taken on the virgin metal - demand if any on waste and scrap has to be raised against the manufacturer job worker and not upon the raw material supplier Decided in favour of Assessee.
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2013 (11) TMI 1214
Interest and penalty on Cenvat credit Erroneously taken till reversal Held that:- Following Commissioner of Central Excise & Customs V/s Sweet Industries [2010 (12) TMI 420 - GUJARAT HIGH COURT ] - Once CENVAT Credit taken is not utilized and subsequently reversed, there is no liability to pay interest - the appellant took credit wrongly taken and was not utilized and subsequently reversed, there is no interest liability. Penalty under Rule 15 (2) of Cenvat credit Rules 2004 r.w. Section 11AC of the Central Excise Act, 1944 - Held that:- The appellant has taken CENVAT Credit under the bonafide belief - Once adjudicating authority is convinced that credit was taken by the appellant on bonafide belief and reversed the entire credit when pointed out, then there cannot be a case of imposition of penalty under Rule 15(2) OF CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 relying upon Mahindra & Mahindra Ltd Vs CCE Mumbai-V [2012 (12) TMI 853 - CESTAT, MUMBAI ] Decided in favour of Assessee.
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2013 (11) TMI 1213
100% EOU - Refund claim on difference between the duty paid on finished goods and the goods lying in stock on which duty was paid earlier Held that:- An 100% EOU must be continued to be treated as EOU/EHTP/STP unit till the date of final exit order Relying upon CCE, Vadodara Vs. Solitaire Machine Tools Pvt. Ltd. 2002 (11) TMI 165 - CEGAT, MUMBAI] Bajaj Foods Ltd. Vs. Commissioner of Central Excise, Ahmedabad [2011 (10) TMI 189 - CESTAT, AHMEDABAD] - a unit would continue to be treated as EOU unit till the date of final exit order and would be subject to monitoring of the stipulated obligations under the relevant schemes - the goods lying in stock at the time of debonding would be liable to duty only at point of time of removal of those goods from place of manufacture. There was no removal of goods into DTA from EOU and before the final debonding order the goods had been exported out of India under advance authorization claim - In terms of para 6.18 (e) of the Foreign Trade Policy, while between the date of issue of no dues certificate by the Customs and Central Excise Authorities and the date of final debonding order by the Development Commissioner, the EOU unit shall not be entitled to claim any duty exemption for procurement of capital goods or inputs, the unit can claim advance authorization/DEPB/duty draw back - during the intervening period between the date of no objection certificate by the Central Excise Authorities and the date of issue of final debonding order by the Development Commissioner, an EOU can export the finished goods under claim for advance authorization/DEPB/duty draw back and that no excise duty can be charged in respect of such goods as the same have not been cleared into DTA the order rejecting the refund claim is not sustainable Decided in favour of Assessee.
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2013 (11) TMI 1212
Unaccounted production - Production not reflected in ER-I Return Waiver of Pre-deposit Held that:- The resin powder reflected in monthly return of M/s. Allied Resins Pvt. Ltd., were in fact manufactured by the applicant in as much as M/s. Allied Resins were not having any machinery for their manufacture - the yield of finished products to the extent of 55% of the total inputs consumed - the duty has been demanded as the same was not reflected in the ER-I Returns filed by the applicants - the applicant had not determined the value correctly in case of their stock transfer of the goods - The applicants have not been able to make a case of full waiver of the pre-deposit applicant directed to pay 50% of the duty as pre-deposit upon such submission rest of the duty to be stayed till the disposal Partial stay granted.
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2013 (11) TMI 1211
Determination of assessable value Waiver of Pre-deposit Held that:- Prima-facie, the Commissioner has categorically recorded as to how the transaction between the applicant and M/s TATA cannot be treated as a sale - the Commissioner had recorded his findings to the notice for determination of assessable value of silico manganese under Rule 8/10A of the Central Excise (Valuation) Rules, 2000, the correctness of which, would be considered at the time of final disposal of the appeal - the price at which the goods were sold to the independent buyers claimed to be at a higher price than the price of the converted goods cleared to M/s TATA for captive consumption has not been an issue before the lower authorities, being not canvassed - The applicant failed to make out a prima-facie case for total waiver of pre-deposit of dues Relying upon Commr. of Central Excise, Guntur Vs. Shri Chaitanya Educational Committee [2011 (1) TMI 356 - HIGH COURT ANDHRA PRADESH] - the applicant to deposit an amount of Rupees fifteen lakhs as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1210
Denial of Cenvat credit Activity Manufacture OR Not - Waiver of Pre-deposit - The applicant availed cenvat credit on the inputs and input services used by them for export of goods - Revenue was of the view that the activities of packing / repacking, labelling/relabeling and anti-rust treatment are for the purpose of safe transport of the components are not amounting to manufacture u/s 2(f) (iii) of the Central Excise Act, 1944 Held that:- Relying upon L&T Ltd. Vs UOI [2008 (2) TMI 645 - HIGH COURT BOMBAY] - Inserting clause (iii) in Section 2(f), the definition of manufacture has widened and the process undertaken would cover within the definition - The adjudicating authority relied upon the CBEC circular dated 8.10.1997 and in respect of the definition of manufacture prior to amendment of Section 2(f) as on 1.3.03 - Prima facie, the processes undertaken by the applicant would amount to manufacture within the definition of manufacture under section 2(f) (iii) of the Act - the entire goods was cleared on payment of duty and duly exported - the denial of cenvat credit on the input and input service used in the finished goods cleared on payment of duty, is not justified - the requirement of pre-deposit of entire amount of duty and penalty along with interest waived till the disposal Stay granted.
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2013 (11) TMI 1209
Affixation of MRP as per Section 4A of CE Act 1944 Waiver of Pre-deposit - Held that:- MRP need not be affixed on the goods, as these goods are cleared by them to institutional/industrial consumers and they are not required to affix MRP on the same as per the provisions of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 as they are exempted as per the third proviso to Explanation (2) of the Sl. No.1C of the Notification No.4/2006 dated 1.3.2006 - Following Grasim Industries Ltd. vs. CCE, Jaipur [2003 (12) TMI 230 - CESTAT, NEW DELHI] - the cement cleared to industrial/institutional consumers is not required to affix MRP and therefore, they are not required to discharge duty liability as per Section 4A of the Central Excise Act, 1944 - thus the applicant has made out a case for 100% waiver of pre-deposit stay granted.
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2013 (11) TMI 1208
Eligibility for Refund Claim Waiver of Pre-deposit Held that:- Both the Revenue and the assessee are in appeal before Hon'ble High Court of Gujarat on an issue that arose due to final order of this Bench in appellants case and the issue in the current appeal being consequence of such final order - the ends of justice will be met if the matter is taken up for disposal only after the judgment of their Lordships in Tax Appeals filed by both sides - Prima facie the appellant has made out a case for waiver of the amounts involved - the application for waiver of pre-deposit of the amounts allowed stay granted.
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2013 (11) TMI 1207
Assessee availed exemption under Notification No.52/03 - Indigenous goods procured for use in their EOU Restriction of 5% on the value of spares imported - Revenue found that they had imported more than 5% of the value of equipment during four different periods Held that:- The core issue in dispute is whether the restriction of 5% is to be enforced at the time of import into the bonded warehouse of EOU or at the clearance from EOU for use in quarry - The factual issue to be decided is whether more than 5% has been actually issued to quarry - Annexure-B of the Show Cause Notice is in respect of spares issued to the quarry exceeding 5% and Annexure-B1 is in respect of spares issued to quarries as well as EOU - there is a question of fact which was under dispute and not settled by the adjudicating authority in clear terms - The legal issue also needs to be determined - the unit is facing acute financial crisis and they have filed applications for producing additional evidence to demonstrate their financial hardship - Pre-deposit of Rupees thirty lakhs to be deposited upon such submission rest of the duty to be submitted till the disposal Partial stay granted.
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2013 (11) TMI 1206
Nexus between the manufacture of finished goods with Input as provided in Rule 2(k) of CC Rules 2004 - Waiver of Pre-deposit of Cenvat credit Penalty under Rule 15(2) of CC Rules r.w. Section 11AC of CE Act 1944 - Revenue was of the view that the duty paid on fixed facility charges cannot be available as Cenvat Credit to the applicant as the payment of duty Held that:- Following COMMISSIONER OF C. EX., HYDERABAD V/s AUROBINDO PHARMA LTD. [2009 (3) TMI 908 - CESTAT BANGALORE] - The appellant were charging as fixed facility charges - The appellant are receiving Oxygen gas from M/s. Goyal MG Gases (P) Ltd., a company situated within their own premises - For manufacture and supply of Oxygen, the applicant has provided certain facility to M/s. Goyal MG Gases (P) Ltd. in their factory premises - the applicant has not only availed Cenvat Credit on the amount of excise duty paid on the Oxygen gas, but also availed Cenvat Credit on the duty paid on fixed facility charges, as a part of the value of the Oxygen gas - Prima facie the applicant could able to make out a prima facie case for total waiver of pre-deposit of dues - stay granted.
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2013 (11) TMI 1205
Recovery of Excise duty on Finacle software - Waiver of Pre-deposit Exemption under Notification No/6/2006 - Whether the product Finacle can be considered as a packaged software or not Held that:- Customized software is a specific software and specific is the one tailored to the specific requirement of the customers - the product Finacle, the software for the banking industry developed and sold by the appellants cannot be considered as a packaged software prima facie - Prima facie the appellants have made out a case for waiver of pre-deposit stay granted.
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2013 (11) TMI 1204
Modification of stay order Deposit of 50% Cenvat credit amount Exemption under Notification No. 108/1995 Held that:- While passing the stay order, all the facts on record had been considered and the pre-deposit had been ordered on the ground that there is no documentary evidence to prove that assesse had been notified by the Government of India as International organization for Notification No. 108/1995-CE - The pre-deposit ordered is only 50% of the Cenvat credit demand there was no merit in the application Decided against Assessee.
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2013 (11) TMI 1203
Availment of ineligible cenvat credit Waiver of Pre-deposit Held that:- All the evidences which have been relied upon by the counsel need to be appreciated by the first appellate authority and can be done by him only when he takes up appeal for disposal on merits - the appellants need to be put to condition for hearing and disposing the appeal by the first appellate authority there are findings which are against the claim of appellant - appellant is directed to deposit an amount of Rs.10 lakhs as pre-deposit upon such submission rest of the duty to be stayed Appeals are allowed by way of remand as indicated - stay granted.
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2013 (11) TMI 1202
Waste and scrap retained by Job worker - Waiver of Pre-deposit of duty and penalty u/s 11AC of CE Act 1944 Held that:- Following Alucast Foundries Pvt. Ltd. Vs. CCE, Mangalore [2008 (6) TMI 511 - CESTAT, BANGALORE] - The job-worker had returned the processed material to the applicant but retained the waste and scrap arose during the said process - The value of the waste and scrap was given to the manufacturer by issuing credit notes - The job-worker had undertaken to discharge the appropriate excise duty on clearance of such waste and scrap from his premises - The duty liability on waste and scrap generated during the process, is only on the job worker Prima Facie the appellant could able to make a prima facie case for waiver of pre-deposit of dues stay granted
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2013 (11) TMI 1201
Applicability of Rule 9 of Pan Masala Packing Machines Rules - Differential Duty Waiver of Pre-deposit Held that:- we are unable to go into the merits of the arguments made by both sides as regards applicability of Rule 9 and proviso thereof of PMPM Rules to the case, for the reason that constitutional validity of these rules is under challenge before Hon'ble Apex Court - the extended period for demanding duty under Rule 9 of PMPM Rules, prima facie, does not arise - At the same time, the show cause notice which is issued in August 2012, also covers the period which is within limitation - since the demand within the limitation period needs to be considered from various angles and more specifically regarding the merit, it would be appropriate to put some conditions for hearing and disposing the appeals on merits Appellant was directed to submit an amount of Rupees One Crore as Pre-deposit Upon such submission rest of the duty to be stayed till the disposal Partial stay granted.
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2013 (11) TMI 1200
Availment of Ineligible Cenvat Credit Nature of Goods - Capital Goods OR Not - Waiver of Pre-deposit Held that:- The appellant has produced Chartered Engineers certificate before the authorities - Chartered Engineers certificate is not discarded as incorrect nor is there any contrary evidence brought in by the Revenue to contradict the claim of the appellant - there were various decisions holding that CENVAT Credit of duty paid M.S. plates and angles can be availed, even if they are used for structural purpose Following COMMISSIONER OF CENTRAL EXCISE, BANGALORE-II V/s SLR STEELS LTD. [2012 (9) TMI 169 - KARNATAKA HIGH COURT] - the appellant has made out a prima facie case for the waiver of pre-deposit of the amount till the disposal stay granted.
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2013 (11) TMI 1199
Waiver of Pre-deposit Penalty on Individuals under Rule 26 of CE Rules 2002 - Held that:- The statements recorded of all the assessees indicate that they had received the goods under some delivery challan - Though, the delivery challan is not a duty paying document, there is no further statement recorded of the current appellant to indicate that they had knowledge that the goods are liable for confiscation and are non-duty paid Following Pharmica Vs CCE Thane [2007 (3) TMI 443 - CESTAT, MUMBAI] - there being no finding that the goods received by the appellant are liable for confiscation and the appellant had knowledge of such liability for confiscation - Prima facie the appellant has made out a case for the waiver of pre-deposit of amount till the disposal stay granted.
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2013 (11) TMI 1198
Shortage of Inputs - Credit availed on written-off materials - Waiver of Pre-deposit Held that:- The inputs were not used in or in or in relation to manufacture of the excisable goods, but they were written-off, prima facie, the credit to the extent of the said inputs not used in or in relation to manufacture of excisable goods, does not appear to be admissible - the Advocate had raised the issue of limitation and certain discrepancy in the Order on the ground of value of the written-off materials taken by the Department, the fact of which can be examined at the time of deciding the Appeal - the Applicant are directed to deposit 25% of the duty as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1197
Doctrine of merger Waiver of Pre-deposit Held that:- Following P & B PHARMACEUTICALS LTD. Versus UNION OF INDIA [2011 (5) TMI 694 - GUJARAT HIGH COURT] - the Revenue cannot rely upon the earlier decision of the Tribunal as the same has been set aside by the Hon'ble Supreme Court in toto - The doctrine of merger would squarely attract and as such it is not permissible for the department to arise the contention that part of the order is still survive and can now rely upon - the applicants have made out a case for total waiver of the dues - The pre-deposit of the dues waived and recovery stayed till the disposal stay granted.
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2013 (11) TMI 1196
Criteria to determine the output level - Waiver of Pre-deposit Held that:- Adequate inquiry was made to find out whether any laboratory elaborate test report was obtained by Revenue to come to the conclusion that higher yield for sponge iron for the outcome of the quantum of input of iron was consumed - There was no such report on record - Even to appreciate the industrial norm of yield of sponge iron, inquiry was made as to whether there was comparative case brought out by Revenue for rebuttal by appellant - That also is absent - mere consumption of electricity shall not guide Following CCE, Meerut-I vs. R.A. Castings Pvt. Ltd. [2010 (9) TMI 669 - ALLAHABAD HIGH COURT] - the appellant directed to deposit Rs. 20 lakhs as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1195
Intention of duty evasion - Waiver of Pre-deposit Held that:- Prima facie, the plea of innocence was rebutted by the Revenue by presumption of guilt - Manager did not speak anything as to where from 130 boras of gutkha was received - After a long time he stated the ownership of the goods - In between quite a long time was lost. Revenue got the advantage of the passage of time to have presumption of guilt - as an interim measure to protect the interest of Revenue, the appellant is directed to deposit Rs. 10 lakhs as pre-deposit upon such submission rest of the duty to be stayed till the disposal Partial stay granted.
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2013 (11) TMI 1194
Reversal of Additional Custom Duty Inputs Found Defective and Returned - Whether additional custom duty availed as Cenvat credit by the appellant paid on inputs imported and used in the manufacture is reversible Held that:- Appellant contended that there is no provision in law to ask for reversal once the inputs are used in the manufacture Relying upon M/s. Asahi India Safety Glass Limited vs. UOI [2004 (9) TMI 118 - HIGH COURT OF DELHI ] - the matter requires in depth inquiry during elaborate hearing stay granted.
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2013 (11) TMI 1193
Cenvat credit on Common Input Services - Waiver of pre-deposit of amount confirmed as 5% of the value of exempted goods, interest and penalty Bar of Limitation - Held that:- The issue involved in this case is not free from doubt and needs deeper consideration for more than one reason - The process which has been explained to the lower authorities as well as the Bench does not indicate that Ammonium Sulphate is arising as a byproduct or otherwise. As regards the limitation aspect, the appellant has made out a case on limitation - At the same time, a show cause notice which was issued in April 2011, demanding 5% of the value of the exempted goods from January 2009 to February 2011 covers at least a period which is in limitation period - the issue involved is not free from doubt and is debatable one, keeping in mind that the appellant has raised a point on limitation, in order to hear and dispose appeal, the appellant should be put some condition, though having reversed an amount of Rs.28,000 - the appellant directed to deposit further an amount of Rupees One lakh and fifty thousand as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1192
Waiver of Pre-deposit Cenvat credit on various service providers Held that:- The appellant is manufacturing various excisable goods - For maintenance of wind mills farm, all expenses were borne by them and Service Tax is paid - Gardening and outdoor catering is in respect of the factory premises of the appellant wherein final products are manufactured - the issue needs to be considered from various angles - the appellant needs to be put to some condition for hearing and disposing the appeal - the appellant directed to deposit an amount of Rupees Fifty Thousands as pre-deposit upon such submission rest of the duty to be stayed till the disposal Partial stay granted.
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2013 (11) TMI 1191
Waiver of Pre-deposit Interest under Rule 14 CC Rules 2004 r.w. Section 11AB of CE Act 1944 Held that: Following Tata Metaliks Ltd. vs. CCE, Pune-II [2010 (1) TMI 1065 - CESTAT MUMBAI] -The Applicant are using iron-ore as a raw material - The iron-ore is an non-excisable commodity - They manufacture Sponge Iron which is a dutiable commodity, and during the course of manufacture of Sponge Iron, iron-ore fines emerge - Such iron-ore fines have been held to be non-excisable commodities, inasmuch as no manufacturing process is involved and the said iron-ore fine emerges as a waste product during the process of manufacturing the Sponge Iron - Prima facie the Applicant is able to make out a case for total waiver of pre-deposit of the due stay granted.
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2013 (11) TMI 1190
Goods Cleared in DTA Cleared to 100% EOU without payment of duty - Waiver of pre-deposit Revenue was of the view that the goods was cleared to 100% EOU as such without any process of manufacture - Held that:- Prima facie from the evidence ARE-3 it was found that the goods were cleared as such thus the applicant failed to make out a prima facie case for waiver of pre-deposit of entire amount of duty, interest and penalty - the applicant directed to deposit a sum of Rupees one lakh only as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1189
Waiver of Pre-deposit of Penalty under Rule 25 of Central Excise Rules 2002 - Cenvat credit availed to the Job Worker Procedure not followed Reversal of amount not made Held that:- The appellant is contesting the confiscation order and also the penalties imposed by the lower authorities - the appellant is contesting the issue on merit as regards confiscation of raw material, the amount of Rs.5 lakhs which has been paid by the appellant when they sought clearance of the confiscated goods, can be considered as enough deposit to hear and dispose the appeal, where there is a penalty of Rs.7.5 lakhs Relying upon J.J. Packgers (P) Ltd. Vs CCE Allahabad [2005 (12) TMI 333 - CESTAT, NEW DELHI] - the application filed by the appellant for waiver of pre-deposit of balance amount of penalty allowed and recovery stayed till the disposal of appeal stay granted.
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2013 (11) TMI 1188
Waiver of Pre-deposit of Penalty under Rule 26 of Central Excise Rules 2002 - Passing on in-eligible CENVAT Credit to customers without dispatching the inputs Held that:- The provisions of imposition of penalty under Erstwhile FERA now FEMA such act and the Central Excise Act are prima facie, not pari material - The dispute of penalty on the appellant needs to be gone into deep - the main appellant needs to be put to some condition to hear and dispose the appeals Appellant is directed to deposit an amount of Rupees Fifty Thousands as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1187
Demand of Interest Imposition of Penalty Held that:- In order to direct the appellant to pre-deposit an amount towards interest liability, there should be some amount which has to be quantified by lower authorities - In the absence of any amount, it is not possible to come to any conclusion as to how much amount be directed to be deposited - the appellant is a public sector undertaking, Revenues interest in the form of interest or penalty on the appellant, will not be unsecure - the application for waiver of pre-deposit of amount of interest and penalty needs to be allowed Stay granted.
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2013 (11) TMI 1186
Eligibility for CENVAT credit Waiver of Pre-deposit of Penalty under Rule 15 of Cenvat credit Rules 2004 r.w. Section 11AC CE Act - Whether the assessee would be eligible for cenvat credit on angles/channels, MS sheets, plates, etc., used in the factory for fabrication Held that:- The original authority had dropped the penalty and also there is no clear allegation of suppression or fraud other than the cited Rule 15 read with Section 11AC of the Central Excise Act, 1944 - there need not be any pre-deposit in the case - complete waiver granted and stay against recovery during the pendency of the appeal stay granted.
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2013 (11) TMI 1185
Method for computing the value of the goods - MRP Based duty u/s 4A or Transaction value u/s 4 of Central Excise Act 1944 Waiver of Pre-deposit Held that:- Following M/s. Mexim Adhesive Tapes Pvt. Ltd. vs. CCE, Daman [2013 (6) TMI 238 - CESTAT AHMEDABAD ] - The MRP is required to be printed and assessable value has to be determined u/s 4A of Central Excise Act, 1944 the appellant has made out a case that goods are required to be assessed and value has to be determined as per the provisions of Section 4A of Central Excise Act, 1944 keeping the MRP as the basis - the department cannot insist that in the case of supply to certain categories, MRP based assessment cannot be followed even if MRP was affixed on the packages - there shall be waiver of pre-deposit during pendency of the appeal stay granted.
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2013 (11) TMI 1184
Classification of Goods - Waiver of Pre-deposit of Interest and Penalty Held that:- The items in question i.e., register, daily work sheet, pay sheets, increment certificates, various kinds for various departments, record books, muster etc is printed by the applicants are used for their in-house - The items in question are printed with the name of Brihn Mumbai Mahanagar Palika Mudranalay - Prima facie the applicant has made out a strong case in their favour - the amount already deposited is sufficient for hearing of the appeal - Pre-deposit of the remaining dues waived till the disposal Stay granted.
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2013 (11) TMI 1183
Goods cleared without payment of duty - Waiver of Pre-deposit Held that:- The cement is cleared to the contractors - There is no name of developer of co-developer mentioned in the documents - Prima facie applicant had not made out a case for total waiver of duty as the documents under which cement was cleared, has no reference of developers - applicants directed to deposit an amount equal to 25% of duty as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1182
Transfer of Credit under Rule 10 of Cenvat credit Rules Waiver of Pre-deposit - the appellant took the Cenvat credit of that amount in their RG-23A account after the new registration was issued to them Held that:- The condition of transfer of credit under Rule 10 of the Cenvat Credit Rules is that at the time of change of ownership from one manufacturer to another manufacturer, the inputs and capital goods in respect of which the Cenvat credit have been availed by the previous owner, are also transferred to the new owner - Prima facie there is no clear cut evidence on this point - this aspect can be examined only at the time of final hearing - this is not the case for total waiver - The appellant directed to deposit an amount Rupees Twenty Five Thousand as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1181
Duty charged from customers but not paid to department Demand u/s 11D - Waiver of Pre-deposit Held that:- The invoices raised by the appellant to their customers, in addition to the price of the goods, mentioned the excise duty - The burden is on the appellant to prove that the amount mentioned as excise duty in the invoices was not collected by them from their customers - the appellant have not been able to establish prima facie case in their favour appellant directed to deposit Rupees Forty Five Thousand as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1180
Cenvat credit under Rule 16 of CE Rules on Returned Goods Waiver of Pre-deposit Held that:- The amount deposited is not sufficient to safeguard the interests of the Revenue as there appears to be evidence indicating that some of the returned consignments in respect of which credit has been taken had not been received back - the appellant are directed to deposit an amount of Rupees Two Lacs as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1179
Reversal of Cenvat credit irregularly availed Penalty under Rule 15 (2) r.w Section 11AC of the Central Excise Act - Waiver of Pre-deposit Held that:- The applicant had already reversed the irregular credit and paid by cash with interest - Penalty to be imposed on irregular credit for clearance of goods and without sufficient balance in PLA - the applicant is directed to deposit a sum Rupees One lakh as pre-deposit Upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1178
Cenvat credit to be reversed Inputs sent to the job worker but destroyed by fire Waiver of Pre-deposit Held that:- The inputs which were sent to the job worker, if they are destroyed by fire at the job workers end and if the job worker has informed by the local authorities in accordance with law, there is no need of reversal of the cenvat credit - Following SABERO ORGANICS GUJARAT LTD. Versus COMMISSIONER OF C. EX., VAPI [2008 (11) TMI 142 - CESTAT AHMEDABAD] - the amounts deposited by the appellant can be considered as enough deposit to hear and dispose the appeal Application of waiver of the pre-deposit of the amounts involved are considered and allowed Stay granted.
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2013 (11) TMI 1177
Cenvat credit on common goods Press mud emerged as by product Manufacture of sugar and molasses -Wavier of pre-deposit - Penalty u/s 11AC of the Central Excise Act, 1944 - Assessee contended that they had availed CENVAT Credit on capital goods and no duty is levied on sugarcane thus there is no question of availment of CENVAT Credit on common inputs Held that:- The inputs which are used in the manufacture of finished excisable goods and exempted goods, i.e. Press Mud, had neither been specified in the notice nor in the Order - The Applicant could able to make out a prima facie case for total waiver of all dues during pendency of the Appeal Pre-deposit of all dues waived and its recovery stayed during pendency of the Appeal - Stay granted.
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2013 (11) TMI 1176
Evidence for receipt of goods Confirmation of Cenvat credit Interest and twice of the Penalty imposed under Rule 15(2) of Cenvat credit rules 2004 r.w. Rule 25 of Central Excise Rules 2002 Waiver of Pre-deposit Held that:- There was merit in the appellants contention that the grounds on which the Cenvat credit demands availed on the basis of 2 invoices issued by M/s Salem Steel Plant and Cenvat credit availed on the basis of 7 invoices issued by M/s A.B. Paul & Co., has been denied, are flimsy - there is no justification for imposition of penalty twice the amount of Cenvat credit demand confirmed - The amount already deposited by the appellant is sufficient for hearing of the appeal - The requirement of pre-deposit of the balance amount of Cenvat credit demand, interest and penalty waived till the disposal stay granted.
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2013 (11) TMI 1175
Cenvat Credit on inputs and capital goods - Service Tax paid on input services Place of Removal - Insurance of the goods during transit - Whether they would be eligible for Cenvat Credit of Service Tax paid on transit insurance premium in respect of insurance of the goods during transit from the factory to the customers premises Held that:- The rate of duty on sugar, is specific - The definition of place of removal as given in Section 4(3)(c) of Central Excise Act, 1944, which as stated in Section 4(3) itself, is for the purpose of the section, would not be applicable and the natural meaning of this term i.e. the place on removal from which the duty is liable to be paid in terms of Rule 4 of the Central Excise Rules,2002, would have to be adopted and on this basis the place of removal, would be the factory gate, not the customers premises. Following LAFARGE INDIA PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2013 (9) TMI 243 - CESTAT NEW DELHI] - Appellant have not been able to establish prima facie case Appellant directed to pay an amount of Rs. Sixty thousand as Pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1174
Denial of Processed fabrics - Invoices are not addressed to the appellant Waiver of Pre-deposit Held that:- Consignees name as to mentioned in the invoice is M/s. Mahaveer Polytex (P) Ltd. Account M/s. Indo British Garments (P) Ltd. and the address of the consignee is the address of the appellant - The name of M/s. Mahaveer Polytex (P) Ltd. had been mentioned, as they are the indenting dealer through whom the appellant had placed the orders with the manufacturers for purchase of fabrics - The various discrepancies in the invoices mentioned in the order, had not been mentioned in the Show Cause Notice - Prima facie view that Commissioner (Appeals) has gone beyond grounds taken in the Show Cause Notice amount of the duty already paid by the appellant is sufficient for hearing of the appeal - the requirement of pre-deposit of balance amount of Cenvat Credit demand, interest and penalty waived till the disposal Stay granted.
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2013 (11) TMI 1173
Short payment of duty Waiver of Pre-deposit - After supply of pipes in one of the contracts there was an exemption from excise duty for pipes vide Notification No. 6/2002-CEdated 01-03-2002 CE by virtue S. No. 191A inserted in the table attached to the notification by Notification No. 47/2002-CE Revenue was of the view that they have paid 16% on some consignments under each contract, the applicant was collecting amounts representing it as excise duty for all supplies under the seven contracts and such amounts which were collected should be deposited to Government of India as per the provisions of Section 11D of the Central Excise Act Held that:- The issue whether the amounts were billed as excise duty to the buyer of the goods is also debatable - Prima facie it will cause extreme financial hardship to the applicant and tilt the balance of convenience against the applicant if pre-deposit is ordered thus it a fit case for granting total waiver of pre-deposit of dues arising from the order for admission of appeal stay granted.
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2013 (11) TMI 1172
CENVAT Credit on various input services - Scope of Input Service under Rule 2(l) of the CENVAT Credit Rules, 2004 - Waiver of pre-deposit - Penalty under Rule 15(2) of CENVAT Credit Rules, 2004 r.w Section 11AC of Central Excise Act, 1944 Held that:- Following Lakshmi Automatic Loom Works Ltd. vs. CCE, Coimbatore [2011 (5) TMI 755 - CESTAT, CHENNAI] - Availability of CENVAT Credit on setting-up/modernization of office premises, non-mentioning of registration number on the input invoices - the Applicant could not able to make out a prima facie case for total waiver of the pre-deposit of the CENVAT Credit availed on club membership - the Applicant directed to make a pre-deposit of Rupees fifty thousand upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1171
Reversal of Cenvat credit on goods lost during storage Waiver of Pre-deposit - The Cenvat credit demand raised by the department is in respect of the quantity of molasses which was used in the manufacture of exempted final products rectified spirit, ENA and power alcohol, which were lost during storage Held that:- The affidavit filed by the appellant in pursuance of the directions of the Tribunal clearly states that the appellant have already reversed the entire cenvat credit taken by them in respect of the quantity of molasses which was used in the manufacture of exempted final products including the exempted final products, which got evaporated or lost during storage - appellant have prima facie case in their favour - The requirement of pre-deposit of cenvat credit demand, interest and penalty waived till the disposal stay granted.
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2013 (11) TMI 1170
Denial of cenvat credit Documents submitted are photocopies and not original Waiver of pre-deposit Held that:- The appellant had made an application to the Customs Authorities for issue of attested photocopies of the bills of entry on the ground that the original copies of the bills of entry have been lost and in response to that, the concerned Customs Authorities issued attested photocopies of the bills of entry - the bills of entry is in the name of the appellant and receipt of the goods covered by the bills of entry in the appellants factory is not disputed, and also in view of that fact that the photocopies of the bills of entry attested by the concerned Customs Authorities, it would not be correct to deny the cenvat credit - The appellant have strong prima facie case in their favour - The requirement of pre-deposit of cenvat credit demand, interest thereon and penalty waived till the disposal Stay granted.
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2013 (11) TMI 1169
Eligibility for Cenvat credit - Service Tax paid on Goods Transport Services Period of Limitation - Waiver of Pre-deposit - Whether during the period from June, 2006 to December, 2009 and from Feb. 2010 to Dec.2010, the appellants were eligible for cenvat credit of service tax paid on GTA services availed for transportation of the finished goods from the factory to the customers premises Held that:- Relying upon ABB Ltd. Vs. Commissioner [2009 (5) TMI 48 - CESTAT, BANGALORE ] - only normal limitation period would be available and only the cenvat credit demand would be within time - the appellants plea that their sales were on FOR destination basis is not acceptable, as the conditions as prescribed in the Boards Circular dated 23.08.2007 have not been satisfied. There is nothing in the appellants contracts with their customer from which it can be inferred that during the transit, the risk of the damage to the goods or loss of the goods was of the appellant and that the outward freight was integral part of the assessable on which excise duty had been paid - during the period from 1.4.2008, Rule 2 (l) of the Cenvat Credit Rules, 2004 had been amended and as such, there was no ambiguity for this period, that cenvat credit in respect of the outward freight from the factory upto to the customers premises would be available only if the customers premises is the place of removal - this is not case for total waiver appellant are directed to deposit an amount of Rupees One Lakh as deposit Partial stay granted.
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2013 (11) TMI 1168
Extended Period of Limitation - Confiscation of the seized goods under Rule 25 (1) of the Central Excise Rules, 2002 - Penalty under Rule 25(1)(a) and Rule 26 of the Central Excise Rules, 2002 Held that:- The period for issue of show cause notice as per Rule 110 of the Customs Act is only relevant in the context, that if the show cause notice is not issued within the period the prescribed period, the goods are liable to be released - There is no provision that the show cause notice for confiscation of seized goods cannot be issued after expiry from the date of seizure - The show cause notice for confiscation of the goods and imposition of penalty can be issued even if the goods have been released or goods have not been seized. Prima facie, M/s. Taneja Iron & Steel Co. have cleared the seized goods without payment of duty and M/s. Taneja Brothers have dealt with the same knowing that in respect of the goods there was no duty paying documents - The penalty appears to be correctly imposed on the appellants under Rule 25 and 26 of the Central Excise Rules Prima facie this is not a case for waiver from the requirement of pre-deposit - Both the appellants directed to deposit an amount Rupees Twenty Thousand as pre-deposit upon such submission rest of the deposit to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1167
Clandestine Procurement of goods - Waiver of pre-deposit Held that:- The maximum yield of GAC during the period of dispute was around 38% only - GAC yield could be ascertained with reference to adsorption capacity of the product in terms of CTC - it is claimed, the Coconut Development Board has certified that the output of activated carbon is only one-third of the weight of the shell charcoal - the Revenue has not placed on record adequate material to support the above demand of duty - There seem to have no case that there was clandestine procurement of coconut shell by the appellants Prima facie the appellant has case in their favour thus the pre-deposits to be waived till the disposal stay granted.
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2013 (11) TMI 1166
Matter remanded back but authority has not done justice to the appellant Stay application - Held that:- Requirement of Pre-deposit dispensed - matter is sent back to the adjudicating authority to do justice to the appellant passing a speaking and reasoned - Relying upon Joint Commissioner of Income Tax, Surat Vs. Saheli Leasing & Industries Ltd. [2010 (5) TMI 9 - SUPREME COURT OF INDIA] - Appellant shall be entitled to the confrontation of the verification report which was sought to be used against the appellant - Appellant shall have fair opportunity to show how the defects pointed out in certain invoices gave raise demand Decided in favour of Assessee.
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2013 (11) TMI 1165
Press mud emerged as by product - Cenvat credit as per Rule 6(2) OF CENVAT Credit Rules - Wavier of pre-deposit Held that:- Following INDIAN POTASH LTD. Versus COMMISSIONER OF CENTRAL EXCISE, ALLAHABAD [2012 (12) TMI 347 - CESTAT, NEW DELHI] - The Bagasse is exemptable - The same anology will apply in the case of the Press Mud which arises during the course of manufacturing of sugar - The Applicant could able to make out a prima facie case for total waiver - Pre-deposit of all dues waived and its recovery stayed during pendency of the Appeal - Stay granted.
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2013 (11) TMI 1164
Adjournment Application Pending stay application - Held that:- It is not possible for Tribunal to keep the matter pending and to grant adjournment after adjournment Revenue pointed out that there was abuse of CENVAT credit - Prima facie , it appears that such abuse is undeniable at this stage when adjudication finding shows that appellant failed to quantify use of common input in manufacture of dutiable goods and exempted goods Following Assistant Collector of Central Excise, Chandan Nagar Versus Dunlop India Limited And Other [1984 (11) TMI 63 - SUPREME Court ] - the appellant is directed to make deposit of Rupees Forty lakhs as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1163
Declaration to be made under Notification No. 214/84 - Job work - Manufacture activity under Chapter 72 of the Schedule to the Central Excise Tariff Act, 1985 Waiver of Pre-deposit - Held that:- The raw material supplier of the applicant filed declaration as required under Notification No.214/86 belatedly - condition of Notification appeared to be satisfied Thus, Pre-deposit of duty, along with interest and penalty waived till the disposal Stay granted.
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2013 (11) TMI 1162
Transaction Value Inclusion of Transport charges - Waiver of Pre-deposit - Whether the transaction value should include transport charges incurred in connection with the sale of the finished goods by the appellant to the customers and delivered at the place of the buyer Held that:- Prima facie the matter needs threadbare examination looking into various agreements in question and also the modus operandi followed by the appellant and deals with the buyers - Prima facie it appears the case is in favour of the appellant Thus there shall be waiver of pre-deposit during pendency of the appeal stay granted.
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2013 (11) TMI 1161
Ineligible cenvat credit Non-reversal of duty on sub-standard inputs Non-observance of Provisions of Rule 16 of the Central Exise Rules 2002 - Waiver of Pre-deposit Held that:- The issue involved needs deeper consideration as the appellant has not put-forth any material to justify his claim that the inputs which were declared as defective by himself were consumed in the manufacturing of final product on which duty liability has been paid - they have complied with the provisions of Rule 16 of Central Excise Rules, 2002 - appellant should be put to some condition as the issue needs deeper consideration Appellant is directed to deposit Rupees Forty Thousand as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1160
Ineligible Cenvat credit - Excess credit taken Interest and Penalty Waiver of pre-deposit Assessee contended that for the amount taken as credit and not utilized, no interest is payable - Held that:- As regards Penalty, the arguments put-forth by the learned counsel merits acceptance - As regards the interest liability, I find that the issue needs deeper consideration - the appellant needs to put to some condition - the appellant directed to deposit an amount of Rupees twenty five thousand as pre-deposit for the interest upon such submission rest of the interest amount to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1159
Denial of Cenvat credit Name of the Applicant not mentioned in the Bills of Entry Requirements under Rule 9 of Central excise rules - Waiver of Pre-deposit - Assessee contended that Rule 9 specifies the documents against which Cenvat credit can be taken - This provision does not state that the documents should indicate the name of the person taking credit - This was the position in Rule 57G of Central Excise Rules, 1944 which was replaced by Rule 9 of Central Excise Rules Held that:- The applicant has satisfied the conditions prescribed in the proviso to Rule 9(2) thus it is proper that waiver of pre-deposit of dues arising from the order is granted - the pre-deposit of dues arising from the order waived for admission of appeal till the disposal Stay granted.
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2013 (11) TMI 1158
Admissibility of cenvat credit Duty paid on copper rods Waiver of Pre-deposit Held that:- Prima facie, in the show cause notice, it is not disputed that the appellant had paid the duty on the copper rods which had not been used for manufacture of power cables for export and this duty had been paid by debit entry in the RG-23 Part-II Account - Once, the duty on the copper rods had been paid and it is not disputed, that the copper rods had been used in the manufacture of power cables which had been cleared on payment of duty - Prima facie, it would not be correct to deny the cenvat credit - The appellant have establish a strong prima facie case in their favour Thus the requirement of pre-deposit of cenvat credit demand, interest and penalty waived till the disposal Stay granted.
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2013 (11) TMI 1157
Denial of Cenvat credit - Non-endorsement of Bills in the favour of Appellant - Requirements under Rule 9 of Central excise rules - Waiver of Pre-deposit Held that:- The bills of entry filed in the name of M/s. Johnson Matthey Chemical India (P) Ltd. as importer of the capital goods, are not endorsed in the name of the appellant, the address of the consignee is the same as the address of the appellant - The emphasis in the show cause notice is that the bills of entry are not endorsed in favor of the appellant - In Rule 9 of the Cenvat Credit Rules also one of the valid documents for availment of cenvat credit is bill of entry - as such, there is no provision that bill of entry should be endorsed in the name of the manufacturer taking the cenvat credit - so long as there is no dispute that the goods covered under a bill of entry have been received by a manufacturer, it would not be correct to deny the cenvat credit Prima facie the appellant have a case in their favour - The requirement of pre-deposit of cenvat credit demand, interest and penalty waived till the disposal stay granted.
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2013 (11) TMI 1156
Evidences against Clandestine removal Stay application - Whether any cogent evidence is available to interfere to the finding of the Adjudicating authority as to clandestine removal by the appellants and others instrumental to the clandestine removal Held that:- The appellants connected to the clandestine removal whether were consciously and deliberately made so, record reveals that none of the grounds convince to hold that appeals of appellants are merited appeal - Adjudication findings have been based on evidence thus, inference is not desirable - Goods found at different places were without payment of duty - Documents gathered during enquiry proved clandestine removal of the goods - There were several considerations applied by the Adjudicating authority to reach to the conclusion of contravention of provisions of law by appellant and consequences of adjudication have not flown following empty formality - Adjudication had proper basis and cogent evidence suggested for consequences of adjudication - All the applicants are directed to deposit the respective amounts demanded against them Decided against Assessees.
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2013 (11) TMI 1155
Availment of the benefit of Notification No. 281/86 and 65/95 - Waiver of Pre-deposit - Penalty u/s 11AC of Central Excise Act, 1944 Held that:- It is not in dispute that subsequent Show Cause Notices were dropped by the Department, after taking into consideration its use inside the factory and accordingly their eligibility to the said notification - Prima facie, the applicants are able to make out a case for total waiver of pre-deposit of dues till the disposal Stay granted.
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2013 (11) TMI 1154
Reversal of Credit - Rule 3(4) of the CENVAT Credit Rules Clearance of capital goods as such - Waiver of Pre-deposit Assessee contended that they have not removed the capital goods as such - it was removed as used capital goods Held that:- Following CCE Vs. Rogini Mills Ltd. [2010 (10) TMI 424 - MADRAS HIGH COURT ] - They have rightly paid the duty on the transaction value - Rule 3(5) of the CENVAT Credit Rules, as amended by Notification No. 39/2007 provides that on removal of used capital goods, the manufacturer shall pay an amount equal to the CENVAT credit taken on the said capital goods reduced by 2.5% for each quarter of a year or part from the date of taking the CENVAT credit Pre-deposit of entire amount of duty along with interest and penalty stayed till the disposal stay granted.
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2013 (11) TMI 1153
Cost of Waste/Scrap to be included in the value of goods manufactured by the job worker or not - The applicant sold the scrap in the market Revenue was of the view that the value of the scrap had not been included in the assessable value - Held that:- CCE Nagpur Vs Lloyds Steels Industries Ltd. [2005 (3) TMI 17 - SUPREME COURT OF INDIA] - Cost of materials and conversion charges are different elements - if by retaining scrap/waste, conversion charges get reduced, then value of scrap/waste would be includible in the assessable value - The contention of ld. advocate that there is no evidence in so far the value was depressed by non-inclusion of value of waste and scrap would be looked into at the time of appeal hearing at length the applicant failed to make out a prima facie case for waiver of pre-deposit of entire amount of tax and penalty along with interest appellant directed to submit Rupees Ten lakhs as pre-deposit upon such submission rest of the duty to be submitted till the disposal Partial stay granted.
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2013 (11) TMI 1152
Clandestine Removal of goods - Rule 95A of the erstwhile Central Excise Rules, 1944 Waiver of Pre-deposit Penalty under Rule 25 of Central Excise Rule,2002 r.w. Section 11AC of the Central Excise Act,1944 - Held that:- The appellant removed the goods clandestinely and there was excess stock of over and above the statutory records - These facts are not seriously disputed by the appellant at any point of time - The clandestine removal of biris based on private records was recovered by the officers there is no reason to interfere with the order passed by the Commissioner (Appeals) - the appellant had deposited the entire amount of duty - 25% of duty towards penalty under Section 11AC of the Act to be deposited as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1151
Denial of cenvat credit on inputs - Duty demand on removal of finished goods from the factory - Storage without prior permission from the jurisdictional Commissioner Waiver of Pre-deposit Held that:- Prima facie, the law obligating the manufacturer to pay duty of excise on finished goods removed from the factory and to reverse CENVAT credit on inputs removed as such from the factory is mandatory - the permission was sought but not acceded to - the appellant chose to remove the goods outside the factory premises, without even choosing to raise a grievance before the Chief Commissioner against the Commissioners decision on their request - the appellant-company cannot claim prima facie case against the penalties imposed on them - As regards duty, they need not pre-deposit it inasmuch as the goods on which the duty has been demanded is within the control of the department Pre-deposit of Rupess Fifty thousand ordered to be submitted upon such submission rest of the duty to be waived till the disposal - partial stay granted.
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2013 (11) TMI 1150
Denial of CENVAT credit Waiver of Pre-deposit Revenue contended that the steel items and welding electrodes were used by the appellant predominantly for a period after the scope of the definition of input was restricted, by an amendment of the 2nd Explanation to Rule 2(k) after the amendment, structural steel items, cement, etc. used in the construction of shed are not to be considered as inputs Held that:- In the absence of evidence of payment (equivalent to the amount of CENVAT credit taken on steel items/welding electrodes used in the construction of shed), the appellant should pre-deposit this amount as they have no prima facie case against the denial of CENVAT credit thus appellant directed to submit amount as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1149
Duty to be paid on waste and scrap as per Rule 3 (5A) of Cenvat credit rules Waiver of pre-deposit Held that:- The applicant used duty paid input, input sierra credit etc., in the manufacture of POP moulds, which was captively used in the manufacture of final product - POP moulds cannot be treated as duty paid capital goods - Prima facie, Rule 3(5A) of CENVAT Credit Rules, 2004 would not apply - the pre-deposit of the entire amount of duty interest and penalty waived and recovery stayed till the disposal Stay granted.
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2013 (11) TMI 1148
Goods Marketable or not - Classification of goods Waiver of Pre-deposit Held that:- Heading 85.03 specifically mentioned AC generators (alternators) - according to the assessee, the alternators manufactured are semi-finished ones and it is completed at the hands of Unit-II as part of GPU and classifiable under Heading 88.03, "parts of goods of Heading 88.01 or 88.02" - there is dispute of the facts on the clearance of semi-finished alternators, as claimed by the applicant from their Unit-I Unit to Unit-II - it appears that the applicant manufactures alternator, which has essential character of alternator - the applicant has failed to make a prima facie case for waiver of the entire amount of duty - the applicant directed to deposit Rs.25 lakhs as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1147
Printed Cartons and Packing Materials cleared for Captive consumption under Rule 8 of Valuation Rules Waiver of Pre-deposit - Mode of Computation of value - Intermediate products manufactured and transferred the applicant while computing the assessable value considered 100% of the cost of production of Badrachalam Unit and not invoice value, which was 115%/110% of cost of production - Rule 8 of the Valuation Rules, 2000 provides that value is to be determined on the 115%/110% of cost of production and, therefore, 15%/10% is notional margin - the issue is required to be considered on the basis of Rule 8 and in the light of provision of CAS-4, which will be looked into at the time of appeal hearing in detail - the applicant had already paid excess amount against the finalisation of three assessment orders Prima facie, the applicant has made out a case in their favour - Pre-deposit of entire amount of duty along with interest and penalty waived till the disposal of the appeal Stay granted. Debit notes part of Assessable value or not - Held that:- There is no sale involved in the transfer of goods to other division of ITC, the valuation would be under Rule 8 of the Valuation Rules, by adopting 115% of cost of production - the amount of Debit Notes would not be included while determining assessable value at Badrachalam Unit - Then, it is difficult to accept that the said amount of Debit Notes would be included in the assessable value of the applicant - Prima facie, there is no reason to include the amount of Debit Note in the assessable value at the hand of the applicant.
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2013 (11) TMI 1146
Irregular availment of cenvat credit on various inputs - Waiver of Pre-deposit Penalty under Rule 15 of Cenvat credit rules, 2004 - Assessee contended that Bolder Slag is a by-product and non-excisable and they are not required to pay an amount equal to 10% of the product price demanded from them Relying upon Tata Metaliks Ltd. vs. Commissioner, C. Ex., Kolkata-II [2002 (10) TMI 179 - CEGAT, KOLKATA] - Granulated Slag generated in the process of manufacture of pig iron is not excisable - these products became excisable for the first time w.e.f. 10.05.2008 - the applicant has been able to make out a strong prima facie case for total waiver of the condition of pre-deposit of duty demand, interest and penalty stay granted
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2013 (11) TMI 1145
Fraudulent availment of Cenvat credit Cenvatable invoices received without having name of office godown premises - Waiver of Pre-deposit Held that:- Appellant has not received the goods under invoices issued by the dealer because the dealer did not have godown for receipt, storage and sale of the goods in the absence of which, it is difficult to conclude that the goods were received by the appellant from the concerned dealer - appellant does not have prima facie case in their favour for complete waiver of pre-deposit the appellant directed to make deposit of Rupees Seventy-five thousand as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1144
Contravention of Rule 4(4) of Cenvat credit rules - Double benefit claimed Benefit of Cenvat credit Depreciation claimed u/s 32 of Income tax Act, 1961 Held that:- The appellant has taken the depreciation of duty element and also availed Cenvat credit of the same amount during the relevant period - The amount on which the depreciation was availed by the appellants was not reversed in the same financial year in the ledger accounts of fixed assets but was reversed on 1.4.2009 in the financial year 2009-2010 and the amount has been shown on debt side of ledger account under head plant and machinery on 1.4.2009 - appellant was not able to show to the adjudicating authority the revised income tax return - Prima facie appellant does not have strong prima facie case so as to allow complete waiver appellant directed to deposit 50% of the duty as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1143
Suppression of goods Clandestine removal of goods Goods were confiscated Redemption fine and penalty imposed Waiver of Pre-deposit - Held that:- Assessee contended that they have not redeemed the goods so far and goods continued to be in the custody of department - under Section 35 F of Central Excise Act, in case the goods are under the control of Central Excise authorities, waiver can be granted to the appellants for depositing duty, interest and penalty here also, goods seized and confiscated are under the control of department - Pre-deposits waived till the disposal stay granted.
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2013 (11) TMI 1142
Denial of Cenvat credit on Dumpers and their parts Waiver of Pre-deposit - Whether Dumpers are inputs or capital goods Held that:- Following Jindal Steel and Power Ltd. [2013 (11) TMI 614 - CESTAT NEW DELHI] - complete waiver in respect of JO trucks used in transportation of the raw materials within the factory granted - the complete waiver granted till the disposal stay granted.
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2013 (11) TMI 1141
Clandestine removal of Aluminium Die Casting Parts Goods cleared without proper documents Goods seized u/s 11- of Customs Act, 1962 r.w. Rule 24 of Central Excise Rules Waiver of Pre-deposit Held that:- The appellants have deposited an amount towards Central Excise Duty liability admitted by them the amount already deposited and appropriated by the lower authority is sufficient for hearing these appeals - the pre-deposit waived till the disposal Stay granted.
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2013 (11) TMI 1140
Eligibility for Cenvat credit - Waiver of Pre-deposit - Applicants have used old & used plates, HSD Steel Bar, Beam, M.S. Angle used in factory for the manufacture of final products - Held that:- Following Vandana Global Ltd. Versus CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - CENVAT credit is admissible in case of materials similar to the ones used by the appellants for supporting structures/fabrication of machinery within the factories - The appellants have made out a prima facie case on limitation Pre-deposit of Rupees 1.25 lakhs ordered to be submitted - upon such submission rest of the duty to be stayed till the disposal Partial stay granted.
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2013 (11) TMI 1139
Ownership of trademark Waiver of Pre-deposit - Multiple companies of the appellant lead the revenue in dark to reach the conclusion as to the use of the brand name by the appellant Held that:- Appellant directed to deposit Rupees Thirty Lacs as pre-deposit upon such submission rest of the deposit to be waived till the disposal registry is directed to link the appeal Partial stay granted.
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2013 (11) TMI 1138
Ownership of Trademark Waiver of Pre-deposit - Held that:- There is no supporting evidence to substantiate the plea from Deed of Dissolution of partnership dated 7th April 1990 - There was multiple confusion made by appellant to the Adjudicating Authority in the name of Sagar Engineering, Sagar Machine Tools Pvt. Ltd. and Sagar Tools - the appellant kept Revenue in dark to reach to a conclusion as to the use of the brand name by the appellant from 1976 - Relying upon Banara Valves Ltd. vs. CCE [2006 (11) TMI 6 - SUPREME COURT OF INDIA] - Prima facie, the pre-deposit of Rupees Thirty Lacs shall not cause prejudice to the interest of Revenue Partial stay granted.
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2013 (11) TMI 1137
Inputs Purchased usable or not Scrap or not - Waiver of Pre-deposit - Assessee contended that no pilot trial was done by the department to come to a conclusion that the inputs supplied by M/s J.S. Traders were not usable Held that:- The controversy shows that the matter needs indepth study on the basis of strength of evidence in the course of regular hearing - balance of convenience being tilting in favour of Revenue the appellants directed to deposit amount as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1136
Waiver of Pre-deposit Clearance of dutiable as well as Exempted output service Held that:- The trading activity was undertaken by the appellant as an exempted output service for purposes of Rule 6(3)(b) thus there shall be waiver of the pre-deposits till the disposal Stay granted.
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2013 (11) TMI 1135
Waiver of Pre-deposit - Payment of 8% or 10% on the price of Spent Sulphuric Acid Goods cleared without payment of duty Exemption under Notification No. 6/2002 Held that:- Following Commr. of Central Excise, Ahmedabad-III Vs. Nirma Ltd. 2012 (10) TMI 138 - GUJARAT HIGH COURT ] - in case of exempted by-product emerging during the process of manufacture, the provisions of Rule 6 of Cenvat credit Rules are not attracted - The applicants are able to make out a prima facie case for total waiver of pre deposit of the dues till the disposal Stay granted.
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2013 (11) TMI 1134
Evidences of material sent for job work returned Waiver of Pre-deposit Held that:- The invoices do mention the challan No. under which the goods had been received from the appellant for processing along with quantity - When the receipt of the material from the job workers is not disputed, the Cenvat Credit cannot be denied to the appellants as Rule 4(5)(a) of Cenvat Credit Rules 2004 does not prescribe any particular documents on format under which the Cenvat Credit availed inputs are to be send to the job worker for processing and return - Rule Rule 4(5)(a) of Cenvat Credit Rules, 2004 does not provide any particular format for sending material to job worker and only mention that from the record maintained by the assessee it must be ascertained that goods have been received back Thus, the appellant have strong prima facie case in their favour - the requirement of pre-deposit of Cenvat Credit demand, interest and penalty waived till the disposal Stay granted.
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2013 (11) TMI 1133
Exemption Notification No. 6/2006 Waiver of pre-deposit Assessee relied upon W.P.I.L. Ltd. Vs. CCE [2005 (2) TMI 137 - SUPREME COURT OF INDIA] Held that:- There is no exemption notification available during the intervening period the decision of the Honble Supreme Court relied upon by the applicant would be looked into at the time of hearing of the appeal - the decision is in the context of captive consumption Assessee directed to deposit Rupees two lakhs as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1132
Waiver of Pre-deposit assessee took suo-motu credit of the pre-deposits - Assessee contended that no permission from the department is required for taking suo motto credit of the pre-deposit made during the adjudication proceedings Held that:- Shyam Textile Mills Vs. Union of India [2004 (6) TMI 590 - GUJARAT HIGH COURT] - Appellant has made out a prima facie case for complete waiver of dues and penalties - there shall be waiver from the recovery of the amounts confirmed by the lower authorities till the disposal of the appeals stay granted.
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2013 (11) TMI 1131
Condonation of Delay Delay of 65 days Held that:- The appeals pertaining to Customs Act were filed in time - the delay of 65 days condoned in the filing of the above Central Excise appeals Decided in favour of Revneue.
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2013 (11) TMI 1130
Benefit of Notification No.4/2006 available upto a limit Concessional rate of duty to be paid after the limit Waiver of Pre-deposit - Held that:- Both the serial number provides different conditions - the exemption under Serial No. 90 of the Table appended to the Notification has not been granted absolutely - Prima facie, the findings of the Commissioner are not sustainable - the applicant has made out a prima facie case for waiver of the entire amount of duty, interest and penalty - Pre-deposit of the entire amount of duty, interest and penalty waived and recovery stayed till the disposal of the appeal stay granted.
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2013 (11) TMI 1129
Half of the duty and penalty ordered to be submitted - Waiver of Pre-deposit Assesse contended that the Commissioner (Appeals) rejected the appeal on merit without giving them proper opportunity of hearing - Held that:- The applicant No.1 directed to deposit Rupees Twelve lakhs eighty seven thousand nine hundred and twenty nine as pre-deposit upon such submission rest of the duty to be waived till the disposal partial stay granted.
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2013 (11) TMI 1128
Demand on the value of waste and scrap cleared by job worker Invocation of Notification No. 214/86-CE or Rule 16A of the Central Excise Rules Waiver of Pre-deposit Held that:- Prima facie, the job worker has paid the duty on the materials - there is no requirement of invoking Notification No. 214/86-CE or Rule 16A of the Central Excise Rules - the applicants have made out a prima facie case for waiver of entire amount of duty, interest and penalty Pre-deposits waived till the disposal Stay granted.
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2013 (11) TMI 1127
Activity Deemed Manufacture u/s 2(f) of Central Excise Act Asseessee undertook the activity of packing / re-packing / labeling / re-labelling / affixing of MRP labels on the clutches Waiver of Pre-deposit Held that:- The applicant is a deemed manufacturer under Section 2(f) of the Central Excise Act - the applicant reversed the credit on the goods cleared as such - In terms of Rule 3(5) of CENVAT Credit Rules, 2004, and the applicant may clear the goods as such after reversing the credit - Rule 3(5) provides that when the inputs or capital goods on which CENVAT credit has been taken, are reversed as such from the factory, the manufacturer shall pay on amount equal to the credit availed in respect of such credit - There is no finding and the Commissioner has not considered properly - the applicant has made out a prima facie case for waiver of entire amount of duty along with interest and penalty Thus Pre-deposit of duty along with interest and penalty are waived till the disposal stay granted.
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2013 (11) TMI 1126
Invoices issued without supply of goods Waiver of Pre-deposit - Held that:- The disputed amount of Cenvat Credit demand stands paid, the requirement of pre-deposit of penalty from Arihant Metal Company (AMC) and their employees is waived for hearing of the appeals and recovery stayed till disposal of the appeals - stay granted.
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2013 (11) TMI 1125
Benefit of Procedures laid down in Rule 6(3) (i) or (ii) of cenvat credit rules, 2004 in the same financial year - Applicant contended that they have not exercised any option for availing the benefit under Sub-Rule (i), but paid 8%/10% of the price of the exempted goods due to non-availability of data, they cannot be precluded in exercising their option under Clause (ii) during the same financial year Held that:- Ankit Packaging Ltd. Vs. Commr. of Central Excise, Hyderabad [2003 (12) TMI 86 - CESTAT, NEW DELHI] - Prima facie, after availability of necessary data necessary to exercise option under clause (ii), the applicant, made an application on 29th of May, 2008 complying with the conditions prescribed under Sub-Rule 3A - Prima facie, mere discharging 10% of the price of the exempted goods due to non-availability of data at the beginning of the Financial year, would not disentitle them in exercising their option later during the same financial year under clause (ii) of Sub-Rule (3) of Rule 6 of Cenvat Credit Rules,2004 - the applicant could able to make out prima facie a case for total waiver of pre-deposit of dues - Thus pre-deposits waived till the disposal Stay granted.
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2013 (11) TMI 1124
Duty on delivery charges Held that:- Following HPCL Vs. Commissioner [2012 (12) TMI 471 - CESTAT, Bangalore] The delivery charges from the Bottling Plants to the dealers premises represents the cost of transportation from the Bottling Plants to the dealers premises - Even though this cost may not be equal to the actual, it cannot be included in the assessable value as transportation is entirely different activity from manufacture - the delivery charges should not be included for the purpose of Central Excise duty order set aside Decided in favour of Assessee.
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2013 (11) TMI 1123
Reversal of Capital goods Waiver of Pre-deposit Held that:- The question of availability of capital goods Cenvat credit to M/s K. Three Pvt. Ltd. in respect of the used moulds and dies received by them from M/s L.G. Electronics cannot be determined by reviewing the assessment at the suppliers end, unless the assessment at the end of M/s L.G. Electronics has been reviewed by the jurisdictional Central Excise authorities - In any case, it is a Revenue neutral situation Thus, the requirement of pre-deposit of Cenvat credit demand from M/s K. Three Pvt. Ltd. and interest and also the requirement of pre-deposit of penalty by M/s K. Three Pvt. Ltd. and M/s L.G. Electronics waived for hearing of their appeals and recovery stayed till the disposal of the appeals Stay granted.
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2013 (11) TMI 1122
Refund claim on Inputs Peanut butter manufactured Claim u/s 11B of Central Excise Act, 1944 r.w. Rule 5 of the Cenvat Credit Rules, 2004 Held that:- Cenvat credit Rules are not applicable to the appellants case and no refund under Rule 5 of Cenvat Credit Rules, 2004 is admissible because no credit accumulation is possible in view of the provisions of Rule 6(1) of the Cenvat Credit Rules - exporters should be given a zero rated export environment as per Central Government Export Policies and for every situation there is a procedure prescribed. There is procedure in place for claiming refund of duty paid on inputs which are used in the manufacture of fully exempted export products subject to certain prescribed procedures of fixing input-output norms - appellant has not followed the procedures thus, he cannot claim the benefit of Rule 5 of the Cenvat Credit Rule - the appellant is claiming refund of duty paid on inputs which are not manufactured by them - Appellant has got no locus standi to seek refund of duty paid on input under Section 11B of the Central Excise Rules, 1944, when he has not paid such a duty Decided against Assessee.
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2013 (11) TMI 1121
Nature of Goods Cotton yarn in corn form which is not exempted OR in the form of plain reel hanks which is fully exempted under Notification No.8/96 - held that:- Neither any documents indicating the clearance of yarn in cone form to Laxmi Trading Company/ M/s Laxmi Industries have been recovered from the premises of appellant nor any such admission has been made by Shri Nand Lal Arora in his statement Following Rhino Rubbers Pvt. Ltd. Vs. CCE [1994 (4) TMI 196 - CEGAT, MADRAS] and Kothari Synthetics Industries Vs. CCE[2002 (2) TMI 465 - CEGAT, NEW DELHI] - It is not safe to rely only on the third partys evidence for making the allegation of duty evasion against an assessee - Other than the records recovered from M/s. Laxmi Trading Company/ M/s Laxmi Industries and the statement of their employees, there is no other evidence indicating that the appellant company had cleared the yarn in cone form and not in form of not plain reel hanks - Neither any such admission has been made nor any documents in this regard have been recovered from their premises - No inquiry has been made with the concerned employees of the appellant company on this point order set aside Decided in favour of Assessee.
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2013 (11) TMI 1120
Complaince of Notification No. 8/2003 Waiver of pre-deposit Held that:- It is clarified by Board Circular No.213/28/87-CX.6 dt. 27.11.1987, that collapsible tubes, crown corks, PP caps, Metal containers, HDPE bags etc. bearing the brand name of large manufacturers/traders would not be hit by the mischief of SSI exemption notification - the demand of duty for normal period is payable - the applicant directed to deposit a sum of Rupees Twelve lakhs as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1119
Benefit of exemption Notification No.4/2006 Held that:- The Boards circular is related to the availment of unconditional exemption notification No. 20/2004 - Section 5A(1A) of Central Excise Act would apply where an exemption from payment of duty of excise under sub-Section (1) of Section 5A has been granted absolutely - both the serial number provides different conditions - the exemption under Serial No. 90 of the Table Appended to the Notification has not been granted absolutely Relying upon M/s. Akshera Papers Versus CCE, Salem [2013 (11) TMI 1014 - CESTAT CHENNAI] - Prima facie, the findings of the Commissioner are not sustainable - the applicant has made out a prima facie case for waiver of the entire amount of duty, interest and penalty - Pre-deposit of the entire amount of duty, interest and penalty waived till the disposal Stay granted.
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2013 (11) TMI 1118
Exemption under Notification No. 6/2006 Pipes used beyond the first storage place Revenue was of the view that the exemption from payment of Central Excise duty is only to the extent of pipes used upto the storage place Held that:- Following CCE vs Electrosteel Casting Ltd [2008 (10) TMI 424 - CESTAT, KOLKATA] - Notification No. 6/2006-CE merely talks about storage facility and there is no restriction that the water should be delivered only to the first storage point as has been provided in the amended Notification with effect from 1.3.2007 Decided in favour of Assessee.
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2013 (11) TMI 1117
Availment of the benefit of exemption Notification No. 58/2008 and 59/2008 Non-maintenance of Separate books - Waiver of Pre-deposit Held that:- The dispute relating to availment of the benefit of both the exemption notification simultaneously would be looked into at the time of hearing the appeal - The applicant has not maintained books of accounts separately as clarified in the Boards Circular Thus, the applicant has failed to make out a prima facie case for waiver of entire amount of duty, interest and penalty - The applicant directed to pre-deposit a sum of Rupees two lakh fifty thousand as pre-deposit Upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1116
Activity Manufacture or not - Putting electrolytes and charging of the battery of two wheelers - Held that:- The electrolyte is nothing but a liquid which contains ions and can be decomposed by electrolysis - After putting the electrolyte appellants are charging the batteries before delivery to the customer - It cannot be said that this process undertaken by the appellant is conversion incomplete or unfinished article i.e Two wheelers into complete or finished two wheelers Decided in favour of Assessee.
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2013 (11) TMI 1115
Refund claim rejected Revenue was of the view that non-availability of cenvat credit would not result in refund - the Appellant had claimed that they did not avail the CENVAT Credit on the SAD amount but, they could not substantiate the said claim through evidences Held that:- Merely because the Appellant did not claim the CENVAT Credit on the SAD amount and chose to pay the duty by debiting their PLA Account, they would not be entitled to refund of CENVAT Credit on SAD, since refund of credit erroneously paid is a different issue, then claiming refund of the CENVAT Credit not availed, even if eligible during the relevant period - the question of refund would arise only when the duty has been paid - the Appellant are seeking refund of CENVAT Credit of SAD against which no credit was availed by him Decided against assessee.
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2013 (11) TMI 1114
Availment of CENVAT Credit on Machineries supplied by AESPL - Payment made through A/c Payee cheque Waiver of Pre-deposit the machineries were received by the Applicant and installed in their factory and the entire sale proceeds were paid by the Applicant to AESPL through A/C Pay Cheques Following Sapphire Paper Mills (P) Ltd. vs. CCE & ST, Siliguri [2013 (10) TMI 1278 - CESTAT KOLKATA] assessee availed cenvat credit on the basis of invoices issued by the manufacturer having Central Excise Registration - They have paid the amount by Account Payee Cheques and the machines are in existence in the factory of the applicant - Applicant could able to make out a prima facie case for total waiver of pre-deposit of dues stay granted.
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2013 (11) TMI 1113
Clandestine Removal of Goods - Non-accountal of waste and scrap in their statutory records - Waiver of Pre-deposit of duty - Penalty u/s 11AC of the Central Excise Act, 1944 r.w Rule 25 of the Central Excise Rules, 1944 Held that:- The Applicant had recorded the receipt of the waste and scrap and its utilization in their factory in their internal private records - after discontinuation of various statutory records, the Revenue has accepted private records showing receipt and consumption of raw materials in the factory - once the Applicant had received the waste and scrap from the job worker and accounted for the same in their private records, the allegation of non-accountal of such waste and scrap in their statutory records, would not be construed that the waste and scrap had been removed clandestinely without payment of appropriate duty Prima facie the Applicant could able to make out case for total waiver of pre-deposit of the dues Pre-deposit of the dues waived till the disposal Stay granted.
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2013 (11) TMI 1112
Cenvat credit availed on construction of civil structure - Waiver of Pre-deposit of duty Held that:- Some portion was used for the construction purpose and the applicant is not eligible to avail CENVAT credit - The use of the materials in the storage tank, boiler, chimney etc. would be examined at the time of appeal hearing they have already paid part of the amount - the applicant to deposit a further sum of Rupees twenty lakhs as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1111
Cenvat credit on goods not related with the final product Items qualified as Imputs or not as per Rule 2 (k) of CENVAT Credit Rules, 2004 Waiver of Pre-deposit Held that:- The circumstances under which duty paid goods were brought in and cleared are not cleared - Credit was taken on totally unrelated items which cannot be permissible under the provisions of Cenvat Credit Rules , 2004 - The issue would be dealt with in detail in final hearing of appeal applicant directed to make a pre-deposit of Rupees Two lakhs upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1110
Production of Documents - Benefit of the Notification No.33/99 - Area-Based Exemption Notification Minimum Production to be made - Assessee contended that the fact relating to expansion of the capacity of production being more than 25% of the existing capacity, could have ascertained from the data disclosed in their RT-12 return and from other documents/evidences Held that:- Copies of the relevant RT-12 returns had neither been enclosed by the Revenue with their Appeal Memoranda nor the Respondents could able to produce the same before this Tribunal - The Revenue is directed to hand over the copies of the Miscellaneous Applications and all other related documents, including the relevant RT-12 returns to the Respondents - the Advocate is also directed to make necessary efforts to produce copies of the relevant RT-12 returns mentioned in the respective Orders-in-Appeal of the ld. Commissioner (Appeals).
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2013 (11) TMI 1109
Eligibility for Cenvat credit Extended Period of Limitation - Waiver of Pre-deposit Penalty under Rule 15 (1) of the Cenvat Credit Rules, 2004 - Applicants have used MS Angles/Bars/Beams etc. and treating the same as 'capital goods' as defined under Rule (2) (a) of Cenvat Credit Rules, 2004 - Held that:- Following Vandana Global Ltd. Versus CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - CENVAT credit is admissible in case of materials similar to the ones used by the appellants for supporting structures/fabrication of machinery within the factories here extended period could not have been invoked - The appellants have made out a prima facie case on limitation Pre-deposit of 25% of the duty to be submitted - upon such submission rest of the duty to be stayed till the disposal Partial stay granted.
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2013 (11) TMI 1108
Denial of benefit of Notification No. 6/06-CE Factory address of the applicant not mentioned - Waiver of Pre-deposit - Penalty u/s 11AC of CEA, 1944 Held that:- Prima facie, The applicant has clearly mentioned the purchase orders against which the goods were supplied to M/s. NTPC by the applicant - the applicant could able to show that the NTPC has accepted the completion of the project and supply of the goods to the project Thus the applicant could able to make out a prima facie case for waiver of pre-deposit of dues - the dues waived and its recovery stayed till the disposal stay granted.
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2013 (11) TMI 1107
Activity of Putting Label on goods - Denial of cenvat credit - Polyurethane resin imported and cleared without any processing or manufacture Whether the Process amounts to manufacture or not Held that:- Only the activity that is being carried out on these goods is putting a label describing the goods as solvent free adhesives with particular code number - There is no provision under the law, which will lead the said activity to be deemed to be amounting to manufacture - Selling adhesives and solvent together does not amount to manufacture Relying upon CCE, Mumbai-III v. Converter Adhesives & Chemicals (P) Ltd. [2005 (8) TMI 17 - SUPREME COURT OF INDIA] - the activity carried out on polyurethane resin would not amount to manufacture. Whole of the credit availed does not appear to be used for clearance of polyurethane resin or adhesive, the lower authority directed to examine how much credit has been utilized for the clearance of polyurethane resin on which credit was availed and demand has to be reduced to that extent Decided in favour of Assessee
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2013 (11) TMI 1106
Denial of the benefit of Cenvat Credit - Steel items used by supporting structures Period of Limitation Waiver of Pre-deposit Held that:- Following Vandana Global Ltd.. Vs. Commissioner of Central Excise, Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - steel items used as supporting structures are not cenvatable items - if the steel items are used for fabrication of capital goods, the same would be cenvatable - As such, no malafide can be attributed to the appellant - Part of the demand would be within limitation - Goods were used for fabrication of capital goods, appellant is directed to deposit of amount of Rs. Ten thousand as re-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1105
Denial of the benefit of Cenvat Credit Period of Limitation Waiver of Pre-deposit Held that:- Following Vandana Global Ltd.. Vs. Commissioner of Central Excise, Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - steel items used as supporting structures are not cenvatable items - if the steel items are used for fabrication of capital goods, the same would be cenvatable - Part of the demand would be within limitation - Goods were used for fabrication of capital goods, appellant is directed to deposit of amount of Rs. One lakh thirty thousand as re-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1104
Duty to be paid at the time of clearance from factory under Sub-Rule 5A of Rule 3 of Cenvat Credit Rules, 2004 - Waiver of Pre-deposit of duty - Penalty u/s 11AC of Central Excise Act, 1944 Held that:- To substantiate the claim that they had not availed Modvat Credit, assessee have not produced any evidence - it is a question of appreciation of evidences and no evidences and as has been produced to establish that Modvat/Cenvat Credit has not been availed on the storage tanks - the applicant directed to deposit 25% of Cenvat Credit as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1103
Availment of Cenvat Credit - Angles, channels, beams, joists etc. used in the manufacture of capital goods in the factory - Extended period of limitation - Waiver of pre-deposit of Cenvat Credit - Penalty under Rule 15 Cenvat Credit Rules, 2004 - Personal penalty on Director under Rule 26 of Central Excise Rules, 2002 Held that:- Following Vandana Global Ltd. Versus CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - The applicant directed to deposit 25% as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1102
Classification of water cooled cables - Waiver of pre-deposit of duty - Penalty under erstwhile Rule 173Q of Central Excise Rules, 1944 r.w Section 11AC of Central Excise Act, 1944 Held that:- Following Pillar Induction (India) P. Ltd. vs. CCE, Chennai [1999 (1) TMI 158 - CEGAT, NEW DELHI] - The applicant are engaged in the manufacture of water cooled cables which are primarily used as claimed by them with electric induction furnaces - Water cooled cables are classifiable under Chapter sub-heading 8544.00 of CETA, 1985 - the applicant could not able to make a prima facie case for total waiver of dues - the applicant directed to deposit 25% of the duty as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1101
Availment of CENVAT Credit Machineries supplied Payment made through A/c Payee cheque Waiver of Pre-deposit Held that:- The machineries were received by the Applicant and installed in their factory and the entire sale proceeds were paid by the Applicant to M/s. Saha Industries through A/C Pay Cheques the Applicant could able to make out a prima facie case for total waiver of pre-deposit of all dues - all dues waived and its recovery stayed till the disposal - Stay granted.
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2013 (11) TMI 1100
Goods Actually Exported or not - Production of Documents - Held that:- Neither in the show cause notice nor in the order it has been disputed that the goods were not exported by the Appellant - The demand has been raised on the ground that the Appellant failed to produce relevant documents - the appellant had produced all the Xerox copies relating to the export of the goods but did not produce the original set of documents thus the case is remitted to the original authority to decide the issue afresh after taking into consideration all the relevant documents - Appeal allowed by way of remand Decided in favour of Assessee.
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2013 (11) TMI 1099
Clearances of bulk drugs to the sister unit - Whether interest is payable or not Waiver of Pre-deposit Held that:- There was another demand in respect of the same assessee for a different period and appellant had chosen to withdraw the appeal Following Bayer ABS Ltd. vs. CCE, Vadodara [2010 (9) TMI 904 - CESTAT,AHMEDABAD] - the appellant is directed to deposit the amount of interest stay not granted.
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2013 (11) TMI 1098
Recall of Final order appeal dismissed for non-prosecution Held that:- When the advocate is appearing before the bench and seeking adjournment, it cannot be said that the appellant is not interested in pursuing the appeal and dismissal of the same for the non-prosecution is not appropriate Re-call of order allowed.
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2013 (11) TMI 1097
Classification of Condensate Waiver of Pre-deposit - Whether the goods classify under Sub-Heading 27101113, attracting Excise Duty as against the applicant claiming classification under Sub-heading 27090000 Tariff rate under sub-heading 27090000 is nil Held that:- Condensate is a petroleum in natural state and is crude oil - the crude oil is excluded from the product i.e. Motor Spirit classifiable under Chapter sub-heading 2710, the product Condensate prima facie appear classifiable as crude oil under Chapter heading 2709 - The advice tendered by the Ministry of Petroleum based on the opinion of the trade understanding, Board is of the view that Condensate is classifiable as crude mineral oil under item 68 CET there is no change in the products specification and their product - Prima facie the Applicant could able to make a case for full waiver of the amount stay granted.
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2013 (11) TMI 1096
Ineligible cenvat credit Whether plastic crates come under the capital goods heading or not Waiver of Pre-deposit - Held that:- Following BANCO PRODUCTS (INDIA) LTD. Versus COMMISSIONER OF C. EX., VADODARA-I [2009 (2) TMI 101 - CESTAT AHMEDABAD] - The plastic crates which played a role in the manufacturing of the final products, needs to be considered as eligible cenvat credit - there is no doubt that trolleys, on which central excise duty has been paid are being used in the factory premises for movement of components - even if it is not considered as a capital goods, the same can be considered under the definition of inputs as provided under Rule 2(l) of the Cenvat Credit Rules, 2004 - appellant has made out a prima facie case for waiver of the pre-deposit stay granted.
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2013 (11) TMI 1095
Illicit removal of the finished goods Separate Penalty on the partner of the main appellant and also on authorised signatory of the appellant Waiver of Pre-deposit Held that:- The main appellant has deposited the entire amount of the duty, interest and 25% of the duty as penalty Relying upon C. C. E. & C., SURAT-II Versus MOHAMMED FAROOKH MOHAMMED GHANI [2010 (7) TMI 378 - GUJARAT HIGH COURT] - once the partnership firm is visited with penalty, partner need not be visited with any penalty - the amount deposited by the main appellant is enough deposit for hearing and disposing the appeals stay granted.
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2013 (11) TMI 1094
Cenvat credit without receipt of Input covered under the invoices Extended Period of Limitation Waiver of Pre-deposit Held that:- The appellant had availed the cenvat credit of the inputs based upon the second stage dealers invoices in the year 2006 and show cause notice has been issued to the appellant in March 2011 Relying upon PRAYAGRAJ DYEING & PRINTING MILLS PVT. LTD. Versus UNION OF INDIA [2013 (5) TMI 705 - GUJARAT HIGH COURT] - the invocation of the extended period is incorrect in as much as when the assessee availed the cenvat credit he had documents which indicated the duty discharged and filed returns to the department - the appellant had produced the evidence of lorry receipt which would indicate the receipt of the inputs in their factory premises - the appellant has made out a prima facie case for the waiver of pre-deposit till the disposal stay granted.
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2013 (11) TMI 1093
Personal Penalty upon Director Second stage dealer - Passing of ineligible cenvat credit - Waiver of Pre-deposit Held that:- the first stage dealer has in his statement categorically stated that they had not delivered any goods to the appellant and they had paid the appellant in cash the amount - all the issues which have been taken up by the counsel can be considered only at the time of final disposal of the appeal - there is an evidence which indicates that the appellant could have passed on ineligible cenvat credit to his customers - the appellant has not made out a case for complete waiver of the amounts appellant was directed to submit an amount of Rupees Ten Thousand as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1092
Ineligible cenvat credit availed on various inputs Single Appeal to be file for separate appeals or not - Waiver of Pre-deposit Held that:- The original authority had dispatched only one order in original and not the four orders in original to the appellants one appeal filed by the appellant before Commissioner (Appeals) is maintainable and there was no need for the appellant to file four separate appeals against one order in original - the appellants appeal before the first appellate authority was in respect of the issues arising out of the order in original - The appellant has deposited the entire amount of the ineligible cenvat credit and the penalty confirmed by the lower authorities - the amounts deposited by the appellant as enough deposit to hear and dispose the appeal - stay granted.
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2013 (11) TMI 1091
Goods imported from DTA without payment of duty Benefit of Notification No.22/2003 and 52/2003 - Waiver of pre-deposit Held that:- Waste, scrap, rejects and remnants arising out of the processing, manufacture, production or packing of articles even if not exported out of India are allowed to be cleared in the DTA on payment of appropriate duty of excise - as the waste, rejects, scrap and remnants cleared to DTA by 100% EOU are liable to duty - the waste is sold for consideration to various manufacturers of dyes and paints - Prima facie the applicants have not made out a case for total waiver of duty - the applicants are directed to deposit an amount equal to 25% of the duty as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1090
Clubbing of the Clearances Clandestine Removal of Goods - Waiver of Pre-deposit - There are adequate corroborative materials on record sharing relevancy of those materials making the investigation story successful unearthing clandestine removals - The materials clearly suggest that questionable modus operandi was followed by the appellants - Once corroboration evidence suggests ill will of appellants mere absence attestation shall not be entertained as defence plea at this stage since law of evidence applies to the fiscal proceedings instead of Evidence Act applicable to such proceedings Relying upon Benera Valves Vs. CCE [2006 (11) TMI 6 - SUPREME COURT OF INDIA] - thus Revenues successful investigation cannot be faulted nor credence challenged by flimsy pleas at the interim stage - the appellant is directed to make further deposit of Rs.85 Lakhs as last Installment.
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2013 (11) TMI 1089
Clubbing of units cleared Waiver of Pre-deposit Held that:- Detailed investigation has been done by the Revenue in bringing out the fact that all the units are controlled by M/s Aircomp Enterprise - There is a prima facie flow of monetary considerations and mutuality of interest as brought out by investigation - The facts brought out by the investigation have been duly analysed and discussed by the adjudicating authority - Prima facie the appellants have not made out a case of complete waiver appellant is required to submit part as pre-deposit upon such submission rest of the duty to be submitted till the disposal Partial stay granted.
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2013 (11) TMI 1088
Stay of Operation - The appellant has been given rebate - the question of staying the operation of order at this juncture, does not arise - the stay petition filed by the Revenue is dismissed.
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2013 (11) TMI 1087
Improper Invoices Denial of Cenvat credit under Rule 9(2) of CC Rules 2004 Waiver of Pre-deposit Held that:- Input service cannot be denied for improper documents in terms of Rule 9(2) of CENVAT Credit Rules, 2004 - For the management consultancy service availed by the head office - the applicant is engaged in the business of manufacturing - the applicants are entitled for input service credit - it is not disputed that service tax has not been paid and services have not been availed Prima facie the applicants are entitled for waiver of pre-deposit stay granted.
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2013 (11) TMI 1086
Modification of Order Error apparent on the face of record Held that:- Following Commr.of C.Ex., Belapur, Mumbai Vs RDC Concrete (India) P. Ltd. [2011 (8) TMI 25 - SUPREME COURT OF INDIA] - Mistake in the order for the purpose of rectification should not be established by long drawn process of reasoning and the mistake apparent on record must be an obvious and patent mistake - for seeking modification of stay order, a prima facie case in that behalf is required to be made in the pleadings - No application for review in the garb of prayer for modification can be entertained by the Tribunal - while examining the modification application, the Tribunal should find out whether any change of circumstance after the previous order is shown with sufficient material in that behalf or any other reason prima facie exists warranting modification of previous order on the ground which was not available when the previous order was made. The mistake in stay order is not apparent on the face of record and it would be established by long drawn process of reasoning, which is not permissible under the law - there is no need to look into stay order of other Bench there was no substance in the application for modification of stay order - the application for modification stay order filed by the applicant is not sustainable Decided against Assessee.
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2013 (11) TMI 1085
Denial of Cenvat credit Waiver of Pre-deposit Held that:- The items were used in fabrication of supporting structure for various equipments and also for building storage tank used in the sugar factory Relying upon Saraswati Sugar Mills Vs. CCE, Delhi-III [2011 (8) TMI 4 - SUPREME COURT OF INDIA] - The applicants directed to deposit Rupees thirty lakhs as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1084
Captive Consumption Waiver of Pre-deposit Held that:- The applicant took the definite stand that sugar syrup containing 37% is not marketable - it is a fit case for waiver of entire amount of duty, penalty and interest thus Pre-deposit of entire amount of duty along with interest and penalties waived till the disposal stay granted.
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2013 (11) TMI 1083
Difference in figures of Consumption - Clandestine Removal of Goods Waiver of Pre-deposit Held that:- The difference in the figures of consumption was considered as the quantity of oxygen removed clandestinely without payment of duty - the claim of the applicant that there was an error in page 429 and correct figure of consumption is reflected at page 369 of the Report which tallies with the daily production report and quantity shown in RT-12 Return - There is force in the submission of the applicant that the difference in figures on consumption of oxygen, as shown in page 369 and page 429, apparently cannot be considered as removal without payment of duty, in absence of other corroborative evidence Prima facie the applicant is able to make out a case for total waiver of dues - all dues as pre-deposit waived and its recovery stayed during the pendency of the appeal stay granted.
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2013 (11) TMI 1082
Non-filing of Appeal - Opportunity of Being Heard Held that:- There are clear directions by the Tribunal while remanding the matter to Commissioner (Appeals) to decide the appeal on merits - it was not open to the appellate authority to again take the stand of non-filing of appeal - The Tribunal's order was not challenged by the Revenue before any higher appellate forum and as such it attained finality - The disposal of the matter on the ground of non-filing of the appeal by Commissioner (Appeals) when the matter was specifically remanded to him for decision on merits, has resulted in discomfort to the assessee and such an action on the part of the lower authorities, by sidelining the directions of the higher authorities shakes the faith of general public in the judicial system and such action need to be avoided order set aside matter remanded back to the Commissioner (Appeals) - it is not open to Commissioner (Appeals) to go into the question of filing or non-filing of appeal Decided in favour of Appellant.
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2013 (11) TMI 1081
Eligibility for Cenvat credit Extended Period of Limitation - Waiver of Pre-deposit Held that:- Following Vandana Global Ltd. Versus CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - CENVAT credit is admissible in case of materials similar to the ones used by the appellants for supporting structures/fabrication of machinery within the factories here extended period could not have been invoked - The appellants have made out a prima facie case on limitation - an amount of Rs. 5 lakhs as pre-deposit payable by the appellant, which is applicable to the normal period of limitation is deposited, would be sufficient for the purpose of pre-deposit upon such submission rest of the duty to be stayed till the disposal Partial stay granted.
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2013 (11) TMI 1080
Bar of Limitation - Cenvat credit Nexus between accumulated credit and manufacture Waiver of Pre-deposit Held that:- It was only on 5.9.2011, a show-cause notice was served on the appellants for the period April 2005 to August 2009 it need not go into merits of the case as the appellant has a stronger case on the basis of limitation - when the manufacture was started for the first time in April 2008 and the ERI returns shows utilization of accumulated credit, it becomes obvious that the total the balance is of accumulated credit thus the extended period could not have been invoked in the case Relying upon M/s. Maruti Suzuki Ltd. Versus Commissioner of Central Excise, Delhi-III [2009 (8) TMI 14 - SUPREME COURT]. There was an accumulated pending balance which was utilized for the payment of excise duty - the appellants have not suppressed any fact in view of the peculiar circumstances in this case where the appellant was providing only output services prior to April 2008 and from April 2008 onwards started manufacturing the excisable goods - it is difficult to take prima facie view that there was mis-declaration or suppression of facts on the part of the appellants the appellants have made out a prima facie case on limitation alone - there shall be waiver of pre-deposit and stay against recovery till the disposal Stay granted.
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2013 (11) TMI 1079
Utilization of Common input service Manufacture of Metallic Springs and Semi Furnished Metallic springs on Job work basis Clearance of Exempted goods under Rule 6(3) of CC Rules 2004 - Benefit of Exemption Notification 214/86 and 8/2005 Waiver of Pre-deposit Held that:- Following Sterlite Industries (I) Ltd. vs. CCE [2004 (12) TMI 108 - CESTAT, MUMBAI] - Both the Notifications No.8/2005 and No.214/86 provided exemption for business auxiliary service and for the products from excise duty respectively on the condition that the person who receives the service or receives the goods on which benefit of Notification No.214/86 has been availed pays duty on the finished goods - The benefit can be extended to the appellant on a prima facie basis - the goods for job work were received by appellants under Rule 4(5)(a) of CENVAT Credit Rules, 2004 and CENVAT credit had been taken on the inputs which makes it obligatory for the principal manufacturer to clear the finished goods on payment of duty only thus there shall be waiver of pre-deposit and stay against recovery during the pendency of the appeal stay granted.
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2013 (11) TMI 1078
Applicability of SSI Exemption Notification No. 84/1944 OR Notification No.214/1986 Manufacturing of goods on job basis - Suppression and Misstatement of fact Held that:- The distinguishing factor that the appellant is registered with Central Excise department and is supposed to know the law as is prevailing - The claim of Limitation is a mixed question of law and facts and the findings as regards whether there was an intention to evade duty or not, can be gone into only when the matter is being heard at the time of final disposal - the appellant was supposed to be aware of the law and having not followed the law, the question of limitation needs deeper consideration - the appellant has not made out a prim facie case for complete waiver of the amount of duty liability confirmed by the lower authorities - The issue needs deeper consideration and is of interpretation of Notification No.84/1994 - the appellant directed to deposit an amount of Rupees One Lakh as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (11) TMI 1077
Clandestine removal of goods - Shortage of Poly Propylene Granules Disallowance of credit Held that:- The input contents 97.85% in finished goods was ascertained on the basis of the statement of the factory in charge of appellants - The appellants could not refute this fact by any evidence Thus disallowance of credit is justified - Regarding demand of duty confirmed in respect of 23,711 kgs of PP materials/scrap, the Advocate was not able to produce any evidence for receipt of the processed materials Thus, the quantity of 23,711 kgs of PP materials was not received, which was unaccounted clearance and the valuation of the goods was not raised before the adjudicating authority Decided against Assessee.
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2013 (11) TMI 1076
Pre-deposit from one appeal to be considered for another appeal Held that:- The appellant has deposited an amount of Rs. 2 Lakhs in another appeal - The amount already deposited by the appellant can be considered as sufficient deposit for the purpose of grant of stay - the applications for the waiver of confirmed dues allowed till the disposal of appeals and recovery stayed till the disposal of the appeals Stay granted.
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2013 (11) TMI 1075
Admissibility of cenvat credit on the outdoor catering services - Waiver of Pre-deposit Held that:- The issue is disputed one and requires in depth study Assessee had already deposited Rs.2,01,040 Thus, the amount already submitted is considered to be sufficient deposit for the purpose of granting stay and hearing the appeal - The application for stay of recovery of balance amount is therefore granted till the final disposal of the appeal Stay granted.
