CESTAT RULING (CENTRAL EXCISE)...M/s Themis Medicare Ltd Vs CCE & ST (Dated: January 10, 2014) CENVAT - appellant had availed CENVAT Credit on inputs which were consumed for the manufacturing

CESTAT RULING (CENTRAL EXCISE) 2014-TIOL-345-CESTAT -MUM

The Supreme Industries Ltd Vs CCE & ST (Dated: December 30, 2013)

CE - Clearance of capital goods after use - whether credit initially availed to be reversed - issue no more res integra - duty payable on transaction value - order set aside and appeal allowed: CESTAT [paras 4 & 5]

2014-TIOL-344-CESTAT -MUM

Sharp Industries Ltd Vs CCE (Dated: January 23, 2014)

CE - Rule 8(3A) of CER, 2002 - default in payment of duty beyond thirty days from due date - duty for each consignment to be paid by debit in account current but appellant paying by utilizing CENVAT - although what is required to be paid is to be construed as arrears of revenue the same have to be paid in cash - any other interpretation will make the restriction meaningless - what is not allowed directly cannot be allowed/claimed indirectly - appellant to pay Rs.8 crores in cash and is free to take CENVAT of equivalent amount and utilize for future clearances: CESTAT [para 7]

Duty payable on 5.11.2010 but paid by utilizing CENVAT credit on 25.11.2010 - such utilization is in contravention of rule 3(4) of CCR, 2004 inasmuch as CENVAT credit that is allowed to be utilized is only to the extent of such credit as is available on the last day of the month or quarter for payment of duty or tax relating to that month/quarter: CESTAT [para 6]

Interest payable but confiscation and redemption fine is not sustainable as goods are not available & in view of LB decision in Shiv Kripa Ispat Pvt. Ltd .: CESTAT [para 8]

Penalty u/r 25 of CER, 2002 is not imposable for default in payment of duty: CESTAT [para 8]

Default - Duty payable on 5.11.2010 but paid in cash on 5.7.2011 - for the period December 2010 to 4.7.2011 appellant paying duty by utilizing CENVAT - non-payment of duty as stipulated u/r 8(3A) viz. on consignment wise and in cash is not default in monthly payment of duty as envisaged in rule 8(1) of CER, 2002 - demand under first SCN is to be considered as recovery of arrears - however, there is no restriction to utilize the CENVAT credit in respect of goods cleared subsequent to making good the default - demand raised in second SCN seeking recovery of duty in cash for clearances made during 5.7.2011 to 31.3.2012 set aside - interest, penalty, redemption fine also set aside: CESTAT [para 9]

Also see analysis of the Order 2014-TIOL-343-CESTAT -MAD

M/s MMS Steels Ltd Vs CCE (Dated: May 6, 2013)

Central Excise - offence case - excess stock of MS Ingots detected and seized during stock verification by visiting officers, apart from incriminating chits with individuals - confiscation of seizure, redemption fine, duty demand with interest on clandestine clearances and penalties on firm and individuals confirmed under various provisions of the Central Excise Act 1944 and rules thereunder in adjudication; upheld by Commissioner (Appeals) and agitated herein.

Held: Based on the opinion of Government Examiner of Questioned Document, Hyderabad, it can be concluded that the appellant firm received unaccounted scrap (without documents) from scrap supplier - Chartered Engineer's opinion on electricity consumption is additional evidence on clandestine manufactu re / clearance - Managing Director and Driver of lorry admitted clearances as noted in the chits - Mahazar clearly recorded that the day's production was excluded from computation - offence established - demand of duty along with interest upheld; penalty reduced to the extent of 25% of duty to be deposited within 30 days from the date of receipt of this order, if not so deposited, penalty equal to duty will be payable - Confiscation of the goods is upheld and imposition of redemption fine is reduced to Rs.30,000/- - The penalty imposed on the Managing Director is also upheld - Accordingly, the appeal of Appellant No.1 is disposed of in the above terms and the appeal of Appellant No.2 is rejected.

2014-TIOL-342-CESTAT -AHM

M/s Manek Chemicals Pvt Ltd Vs CCE & ST (Dated: January 15, 2014)

CE – Classification - 'Bleach-9' made by the appellant during the period 15.04.1999 to 23.08.1999, whether the same should be classified under CETH 38.02 as activated earth as claimed by Revenue or as a product of CETH 25.05 as claimed by the appellant – first appellate authority had directed the lower authorities to send the two conflicting test reports to Chief Chemist, CRCL, New Delhi – this order has not been appealed and become final – without following the directions, matter cannot be decided the issue against appellant – matter remanded again: CESTAT [para 5.1]


Sachneider Electrical India (P) Ltd Vs CCE (Dated: January 17, 2014)

CE - Valuation - s. 4A of CEA, 1944 - Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 is a curative provision to deal with a situation where the RSP is not declared or tampered with - they are entirely procedural in nature and, therefore, retrospective in nature and can be applied to all proceedings which are pending or which arise after the rule has been introduced - MRP of the product can be ascertained by the assessing officer using reasonable/best judgment means based on the material available and consistent with the principles and the provisions of Section 4A of the CEA, 1944 even if rules for ascertainment of the same were not framed earlier and came about later - CESTAT by Majority.

Also see analysis of the Order


M/s Themis Medicare Ltd Vs CCE & ST (Dated: January 10, 2014)

CENVAT - appellant had availed CENVAT Credit on inputs which were consumed for the manufacturing of final products - Before the final products could emerge, during the process, due to fire/explosion, the goods got destroyed -appellant had received the insurance claim lodged by him - Revenue denying CENVAT credit by invoking rule 3(5C) of CCR, 2004. Held: said rule envisages recovery of duty paid on inputs and availed as CENVAT Credit when an assessee seeks remission of duty under Rule 21 of the CER, 2002 - this not being the case in question, rule 3(5C) cannot be invoked for recovery - moreover, as held by the Karnataka HC in case of Tata Advance Materials Ltd. m erely because the Insurance Company paid the assessee the value of goods including the excise duty paid, that would not render the availment of the CENVAT credit wrong or irregular - ground of rejection of appeal by Commissioner(A) that the appellant has been compensated by the insurance agencies is at variance with settled law - Order set aside - Appeal allowed: CESTAT [ para 7, 9]


M/s Intercontinental Polymer Pvt Ltd Vs CCE (Dated: January 9, 2014)

Central Excise - Stay / Dispensation of pre deposit - dispute on whether benefit of Sr.No.78 of Notification No.4/2006-CE dt.11.03.2006 is admissible when goods of CETH 3901 to 3914 are manufactured out of plastic material imported by the appellant; with duty, interest and penalty confirmed and agitated herein.

Held: In the present case, there is no evidence on record that plastic granules imported are made out of waste, parings and scrap of plastics - Prima facie, appellant has not made out a case of complete waiver - appellant to deposit an amount of Rs.5 lakhs within a period of 8 weeks; upon compliance, there will be a stay on the recovery of the balance amounts till the disposal of the appeal.

2014-TIOL-334-CESTAT -MAD

CCE Vs H & R Johnson (India) Ltd (Dated: July 17, 2013)

Central Excise - Cenvat credit - input services credit under Rule 2(I) of Cenvat Credit Rules 2004 availed on ‘rent-a-cab' and ‘catering service'; denied in adjudication, reversed by Commissioner (Appeals) and agitated by Revenue herein. Held: In Ultratech case, the High Court held canteen service was a statutory requirement - eligibility to ‘rent-a-cab' service not examined in adjudication on facts - matter requires fresh reconsideration - appeal allowed by way of remand to original authority.


Madras Cements Ltd Vs CCE (Dated: August 19, 2013)

Central Excise - Stay / dispensation of pre deposit - duty demand on clinkers used in the manufacture of cement cleared to SEZ units under dispute - on the identical issue in applicant's own case the Tribunal granted stay vide Order No.400932013 dated 8.01.2013 - pre deposit waived and recovery stayed till disposal of appeal.


Jsw Ispat Steel Ltd Vs CCE (Dated: December18, 2013)

CENVAT - HR Plates, MS Plates, SS plates, Weld etc. used in repairs and maintenance of capital goods whether entitled for credit - issue no longer res integra - they are to be considered as inputs and credit is admissible thereon - Appeal allowed with consequential relief: CESTAT [para 3]


M J Biopharm P Ltd Vs CCE (Dated: January 2, 2014)

CE - Excess quantity filled in Injection is as per the provisions of Drugs & Cosmetics Rules, 1945 and hence appellant is not required to pay any duty thereon -Appeal allowed: CESTAT [para 6]

Duty on control samples -as appellant is maintaining proper account in respect of control samples retained in the factory, no duty is payable -however, since appellant has not contested the demand, interest and penalty not payable: CESTAT [para 4]

Inputs used for Trial of machine is CENVATable -however since appellant is not contesting the duty demanded on inputs used for the aforesaid purpose, interest and penalty waived: CESTAT [para 5]



Sensor & System Vs CC & CE (Dated: January 16, 2014)

Rule 8(3A) of CER - during the period of default the applicant utilized the credit to the extent of Rs.2,49,963/- for payment of duty - in view of the decisions of the High Court whereby the High Courts have interpreted the provisions of Rule 8(3A) of the CER, 2002 and held that during the period in default manufacturer is debarred from utilizing the credit prima facie applicant has not made out a case for total waiver - pre -deposit ordered: CESTAT [para 5]


Jolly Board Ltd Vs CCE (Dated: January 6, 2014)

CE - Refund under notification 5/2006-CE(NT) was denied on the premise that the appellant are manufacturers of exempted goods, therefore, they are not entitled to take credit in terms of rule 6(1) and consequently not entitled to file refund claim; as the goods were not exported under bond, provisions of rule 6(6)(v) of CCR, 2004 are also not applicable. Held - It is clearly the government's policy not to export the domestic duties, on the finished goods or on the inputs, to the International market - if refund of input duty credit is not allowed, the goods will become costly in International market and less competitive - Appeal allowed with consequential relief: CESTAT [paras 5, 6, 7]


Indian Additives Ltd Vs CCE (Dated: August 14, 2013)

Central Excise - Stay / dispensation of pre deposit - credit on input services under Rule 2(l) of the Cenvat Credit Rules 2004 on House Keeping, Rent-a-cab, Tour Operators, and Outdoor Catering denied in adjudication on the ground that they have no nexus with manufacture of final products - demand for recovery of credit along with interest and penalty confirmed in adjudication, partially set aside by Commissioner (Appeals) and the balance agitated herein. Held: The amendment made in definition of "input services" on 01-04-2011 does not alter the position on admissibility of the impugned services to credit - prima facie, rulings pronounced in Delphi Automotives and NTF (India) cases applicable - pre -deposit for admission of appeals waived and there shall be stay on collection of such dues during pendency of the appeals.

2014-TIOL-314-CESTAT -DEL

M/s Footwear (Klick) India Pvt Ltd Vs CCE (Dated: December 27, 2013)

CE - Clandestine removal - Appellant have purchased inner boxes for packing of the

footwear and inasmuch as footwear cleared by the appellant on statutory records was less than the number of inner boxes purchased during the period 1999-2003, the revenue entertained a view that the number of boxes to the extent of 51,855, which have not been used by the appellant, were used by them in clearance of footwear in clandestine manner - duty demand of Rs.12.11 lakhs confirmed - Commissioner(A) allowing wastage of @2.5% for the period except the higher wastage @ 5% recorded for the year 2001 -2002 - appellant claiming that excess wastage was due to rain water flooding the basement - Commr (A) rejecting the claim as not being based on any verifiable documentary evidence on record - appeal before CESTAT. Held: Demand of duty on the basis of short found raw material is on presumption of clandestine removal of the finished goods without any evidence of such clandestine removal and cannot be upheld - appellant claim of higher wastage of 5% on account of rain water flooding has to be accepted - Demand of duty set aside along with penalty: CESTAT [ para 6]

Consumption of Resin - demand of duty cannot be confirmed on the basis of procurement of one of the raw materials, there being no other evidence to show that the Footwear were manufactured out of the said raw material and were cleared without demand of duty - Even otherwise, PVC resin received by the appellant has been used in the excess stock which stand confiscated by the Reve nue and does not stand contested by the appellant - Revenue has not adduced any evidence to show that the PVC Resin was used for footwear other than found in excess - no justification for confirming the said demand and imposing penalty: CESTAT [para 7]

Appellant is not contesting the confiscation of the excess found goods - Appeal disposed of: CESTAT


M/s PCS Technology Ltd Vs CCE (Dated: July 12, 2013)

CX - Extension of Stay / dispensation of pre deposit - the third proviso to Section 35C (2A) of the Central Excise Act, 1944 was inserted by Finance Bill, 2013, in the context of appeals not disposed of within the period specified in the first proviso - Apex Court in the case of Kumar Cotton Mills, after considering the periods as specified in proviso to sub-section (2A) held that the Tribunal has power to extend stay after specified period - the decision of Kumar Cotton Mills would apply even after insertion of third proviso of sub-section (2A) of Section 35C of the Act, 1944 - no merit in the submission of the department - Accordingly, the miscellaneous application for extension of stay already granted vide Stay Order No.147/2012 dated 20.3.2012 is allowed.


CCE Vs Mahindra And Mahindra Ltd (Auto Sector) (Dated: January 9, 2014)

CENVAT - due to modernization of technology, certain inputs became obsolete and were written off in the books of accounts and cleared after paying duty on transaction value - Revenue viewing that the removal has to be treated as inputs being removed ‘as such' and hence credit equivalent to that taken should be reversed - Commissioner dropping the SCN and Revenue in appeal. Held: inputs were reduced to the value of 5%/10% of the actual value at the time of writing off in the books of accounts which shows that inputs were not absolutely held obsolete - therefore para 3(ii) of the Circular dated 16.07.2002 is relevant to the facts of the case - since assessee has discharged the duty liability, they have made out a case on merits - as the facts were in the knowledge of the department that the inputs which have been written off are to be treated as auction sale and on this auction sale amount they are paying duty, respondent also has case on limitation - Commissioner has rightly dropped the

demand notice - no merit in Revenue appeal, hence dismissed: CESTAT [para 7] .


M/s Modern Bakers (Madras) Pvt Ltd Vs CCE (Dated: August 29, 2013)

Central Excise - Stay / dispensation of pre deposit - issue involved herein is dutiability of 'sugar syrup', an intermediate product manufactured and captively consumed by the applicants in the manufacture of their final products, which are exempted vide Notification No.3/2007-CE, [S.No.18A], dated 01.03.2007.

Held: In the instant case, sugar content in the Sugar Invert Syrup is nearly 80% by weight; syrup has shelf life, is marketable and hence dutiable - The Sugar Invert Syrup is not immedia tely consumed but retained for manufacture later - prima facie merit in Revenue's contention - However the appellant took a stand that the sugar syrup is not marketable which would be examined at the time of appeal hearing - applicant to deposit a sum of Rs.3 lakhs (Rupees Three Lakhs only) within a period of six weeks; upon compliance, the balance adjudged dues shall remain waived and recovery thereof stayed till the pendency of the appeal.


The Bombay Dyeing & Mfg Co Ltd Vs CCE (Dated: January 6, 2014)

CENVAT - Capital goods procured by appellant and credit taken thereon when the products manufactured were dutiable - final product became duty free on 09.07.2004 - appellant clearing capital goods during the period 06.04.2005 to 18.05.2005 - Revenue demanding interest for the intervening period from 09.07.2004 - when the product became duty free on 09.07.2004, there was no requirement for reversal of credit on the capital goods - interest not payable for the intervening period - Appeal allowed with consequential relief: CESTAT [paras 6 & 7]


Emco Ltd Vs CCE (Dated: January 15, 2014)

CENVAT - credit denied on the premise that the document/invoices are not in the name of the appellant - appellant submitting that invoices are in the name of the head office and the services were availed by different divisions of the same appellant. Held : Input services credit in question are of housekeeping, courier, freight and forwarding service which have been availed by appellant and same has been transferred to various divisions which actually availed the services in question - credit admissible except for an amount of Rs.1134/- wherein the services were availed by Emco Energy Ltd. - appeal disposed of: CESTAT

.


CCE Vs M/s Menon Piston Rings Pvt Ltd (Dated: December 24, 2013)

CE - Adjustment of excess duty paid against the demand raised on account of short

duty payment is permissible as in assessee's own case the same has been allowed by Tribunal - no infirmity in order of Commissioner(A) - Revenue appeal dismissed: CESTAT [para 6]


National Polyplast (I) Ltd Vs CCE (Dated: August 30, 2013)

Central Excise - Cenvat credit - inputs received from 100% EOU on which credit was availed under formula specified in Rule 3(7)(a) of the Cenvat Credit Rules 2004 - Revenue contends that the impugned credit was availed in violation of the formula in respect of CVD, culminating in the instant dispute.

Held: there is a factual dispute on the availment of the credit on the basis of some invoices wherein the applicant's contention that EOU has paid the duty under Sl. No. 2 of Notification No.23/2003-CE dated 31.3.2003, is required to be examined by the original authority - appeals are allowed by way of remand.


M/s Standard Batteries Ltd Vs CCE (Dated: December 23, 2013)

CENVAT/MODVAT - Transfer of credit on sale of factory - Condition of the transfer of liability is applicable when there is a change in site of the factory resulting from sale, merger, amalgamation or transfer to a joint venture - in the present case, the factory has not been shifted to anywhere but only the ownership has been changed - condition of transfer of liability is not applicable to transfer of ownership - credit is required to be allowed to be transferred to 'Exide' after deducting the outstanding amount payable by appellant - Matter remanded: CESTAT [paras 7, 8 & 9]



M/s Exide Industries Ltd Vs CCE (Dated: December 23, 2013)

Refund - any amount paid as a condition for hearing of appeal cannot be held as payment of duty paid under protest - so submission by AR is without merits - CBEC has clarified that attested Xerox copy of challan is sufficient and there is no requirement to file original TR-6 challan - refund denied on the ground that appellant has not produced original challan set aside - adjudicating authority directed to comply within 30 days: CESTAT [para 6]


Clariant Chemicals India Ltd Vs CCE (Dated: December 31, 2013)

CENVAT - Rule 2(l) of CCR, 2004 - Services utilized in residential colonies cannot be considered as Input Services - issue no longer res integra - as issue was before apex court to decide the eligibility of credit in the case of Maruti Suzuki Ltd. ( 2009-TIOL-94-SC-CX) , extended period is not invokable - demand for normal period is confirmed - mandatory penalty waived as extended period is not invokable - appeal disposed of: CESTAT [para 3]


M/s Aarvee Denims And Exports Ltd Vs CCE (Dated: December 3, 2013)

Central Excise - Cenvat credit - refund of credit on inputs / input services utilised for manufacturing final products that were cleared for export under Notification No.30/2004-C.E. dated 9.7.2004 denied, and credit disallowed by Revenue - primary ground for denial is that Notification No. 30/2004-C.E. dated 9.7.2004 prohibits availment of Cenvat credit of duty paid on inputs, and this applies to input services - No dispute that goods have been exported and input tax has been claimed as refund - spirit of legislation is that no tax is charged for export of goods - ratio of HC ruling in the Drishw shoes case applicable - impugned denial of refund / recovery of credit along with interest and penalties set aside.


CCE Vs Owens Corning (India) Ltd (Dated: January 17, 2014)

CENVAT - Credit availed on Inputs used for trial run/testing of machines - Commissioner(A) allowing credit and Revenue in appeal. Held : Issue no more res integra - issued resolved by Apex Court in case of Flex Engineering Ltd. holding that credit is admissible - Revenue appeal dismissed: CESTAT


Piramal Healthcare Ltd Vs CCE (Dated: January 15, 2014)

Valuation - s.4 of the CEA, 1944 - Physician samples sold to brand-name owners on principal to principal basis who in turn distribute the same free of cost to various doctors - such physician samples are liable for assessment as per the provisions of section 4(1)(a) of the CEA, 1944 - order set aside and appeals allowed: CESTAT [para 2]


Priyadarshini Polysacks Ltd Vs CCE (Dated: January 13, 2014)

CENVAT - Invoice was in the name of Unit no. 1 but the goods were used by unit no. 2 and, therefore, the first unit endorsed the invoices in favour of unit no. 2 - credit denied by CCE, Pune-II on the ground that these are invalid documents in terms of rule 7 of the CCR - the facts involved in the case laws relied upon by AR are totally different - Tribunal in the case of Coimbatore Murugan Mills has held that if there is transfer of goods between the same appellant in different units, credit can be taken on the basis of endorsed invoices - appeal allowed with consequential relief: CESTAT [para 5]


Shingar Cosmetics Pvt Ltd Vs CCE (Dated: January 6, 2014)

CX - Order was dictated in the presence of the Counsel of the applicant - Tribunal has power to rectify mistake which is apparent on record but does not have the power to review its order - ROM application dismissed: CESTAT [para 4]



Unitop Chemicals Pvt Ltd Vs CCE (Dated: January 16, 2014)

CENVAT - Rule 2(l) of CCR, 2004 - CHA service, telephone service, insurance charges, repair and maintenance of factory service & courier services are input services - credit allowed and demand dropped - However, repair of motor vehicles is not an input service as there is no nexus between the services and the activity of manufacture - demand with interest and consequential penalty in respect of these services is upheld - Appeals disposed: CESTAT [paras 6 & 7]


CCE Vs Komal Enterprises (Dated: January 21, 2014)

CENVAT - For manufacture of Springs & Press Pans, respondent procuring duty paid S.S. wire from market and availing Credit - Revenue contending that since drawing of wire from wire rods is not manufacture supplied ought not to have paid duty and consequently respondent not entitled to take credit - Commissioner(A) setting aside the adjudication order and Revenue in appeal. Held - Board in Circular dated 16.02.2001 has clarified that drawing wire from wire rods amounts to manufacture - when the Board itself is saying that the process amounts to manufacture and the supplier has issued C ENVATABLE invoice by paying duty thereon, then it cannot be said that he is not required to pay duty and the respondent cannot take credit - Revenue appeal dismissed: CESTAT [para 6]


Mahajan Processors P Ltd Vs CCE (Dated: November 13, 2013)

CE - Interest on Refund - s.11BB of CEA, 1944 - appellant claiming inte rest on delayed refund of the amount paid by them before issuance of the SCN and also deposits made in terms of stay order of Tribunal - issue no longer res integra - interest on delayed refund is payable on expiry of period of 3 months from the date of receipt of application u/s 11B(1) of the CEA, 1944 - adjudicating authority directed to comply - Appeal disposed of: CESTAT [para 5]


M/s SNE India Pvt Ltd Vs CCE (Dated: December 3, 2013)

Central Excise - Stay / Dispensation of pre deposit - Default in payment of duty subsequently made good with interest - Clearance during default period made from CENVAT account - viewed by Revenue as a violation of Rule 8 of the Central Excise Rules 2002 - demand for payment through PLA confirmed with interest and penalty in adjudication, agitated herein. Per Member (J) - Appellant has paid the duty liability through Cenvat credit - Tribunal rulings to the effect that the utilization of Cenvat credit during the period of default results only in interest loss of the Revenue applicable - show cause notice proposed imposition of penalty only under Rule 27 which prescribe maximum penalty of Rs. 5,000 - For the purpose of stay no different views are required to be adopted at this interim stage - waiver of deposit of duty granted, which already stand paid by the appellant through Cenvat credit - appellant directed to deposit an amount of Rs. 5,000/- towards penalty within a period of four weeks, upon compliance, the balance amount of deposit of penalty shall stand waived and its recovery stayed during the pendency of the appeal.

Contra Per Member (T) - As per clear legal provisions, assessee was required to pay duty consignment-wise and could not utilize Cenvat credit till outstanding amount including interest was paid. When rule clearly stipulates that Cenvat credit cannot be utilized under such circumstances, utilization of Cenvat credit became legally improper. Otherwise these legal provisions would become redundant. Utilization of Cenvat credit when there was clear legal bar - It results in attempt to twist the legal provisions for their use. It is fact on record that appellants have deliberately utilized cenvat credit when they were required to pay through current account - Pre -deposit of duty demanded and penalty of Rs 5,000/- is ordered. Matter referred to Third Member in view of difference of opinion.



Jindal Drugs Ltd Vs CCE & ST (Dated: December 24, 2013)

CENVAT - Credit of Rs.40,14,364/- taken in respect of ASTM, shapes and sections, joists, MSI Beam, MS Angle, Channel, Welding Rods & Black Sheet [Ch. 73] - department alleging that credit not available as the goods are not covered by the definition of capital goods inasmuch as the same had been used for fabrication and erection of supporting structures for machinery - appellant's claim, that all these items have been used for fabrication of various machineries viz. Shellcon , Winnower, Alkalizer , Roaster, Storage tank & Silos, Butter Presses, etc., which are capital goods rejected by lower authorities - appeal before CESTAT. Held : prima facie, steel items cannot be said to be covered as capital goods and the appellant has not produced any evidence in the form of a Chartered Engineer's certificate and disclosure of manufacture and fabrication of capital goods in ER-1 returns - pre -deposit ordered of Rs.20 lakhs - if the amount has already been deposited pursuance to Stay order of Commissioner( A) and the same is lying with department, no further pre -deposit required: CESTAT [ para 6]


Raymond Ltd Vs CCE (Dated: January 2, 2014)

CENVAT - AED(T&TA) & AED(GSI) are being collected with certain objectives and are required to be accounted for under that head and also used for that purpose - In case credit of such duty is allowed to be used for duty liability of other type, the quantum and purpose of collecting the said duties will get defeated/distorted - accumulated credit of AED (T&TA) cannot be cross utilized for payment of duty relating to AED (GSI) and for payment of basic excise duty - utilization of the credit will be governed by the law as it stood at the time of utilization - Similarly, availment of credit will be governed by the law on the date of availment - if credit of AED (T&TA) is allowed to be used for payment of AED(GSI), the collection of AED(GSI) will come down by an amount equivalent to the cross-utilization of AED (T&TA) and this will distort the whole collection system - cross-utilization of AED(T&TA) to AED(GSI) will be in conflict with Section 3(2) of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 and Section 4 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 - Rules cannot be in conflict with purposes of the Acts - liability of interest and penalty will follow - appellant will pay the total amount including payment in cash along with interest and penalty - appellant will be free to take credit and utilize, if possible, and in accordance with law - Penalty on Shri R.K.Shriyan, DGM, Raymond Ltd., Nashik set aside - Appeals disposed of: CESTAT



M/s Echjay Forgings Pvt Ltd Vs CCE (Dated: December 26, 2013)

CENVAT - Welding electrodes used in the repair and maintenance of inputs which have gone into manufacturing of final product - whether inputs - issue is no longer res integra - Credit of duty paid is admissible - appeal allowed with consequential relief: CESTAT [para 2]


M/s AIA Engineering Ltd Vs CCE (Dated: December 23, 2013)

CENVAT - Job worker paying Service Tax and appellant taking credit - Revenue denying credit on the ground that the job worker was entitled for the benefit of exemption notification 8/2005-ST dated 01.03.2005 - Re-assessment of input services cannot be done at receiver's end - prima facie case in favour - Pre -deposit waived and stay granted: CESTAT [para 4]


M/s Micro Inks Vs CCE & ST (Dated: January 2, 2014)

Central Excise - Goods cleared by EOU in DTA - Inter unit transfer - Demand of Additional Duty of Customs under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 as no sales tax was paid on inter unit transfers - Whenever there is an inter unit transfer, it is not sales transactions and hence the sales tax/CST/VAT may not get attracted - It does not mean ipso facto, it is an exemption granted by the state government - In the absence of any notification granting exemption for specified products by the state government from levy of sales tax on the finished goods cleared from 100% EOU, it would be incorrect to hold that the goods were exempted from sales tax - For the purpose of taking benefit of Notification 23/2003/CE, as amended, the one and only condition specified in respect of the goods being cleared into DTA, is if the said goods are exempted by the state government from payment of sales tax/VAT - In the present case there is no such notification or order issued by the state government exempting impugned goods from the payment of sales tax/VAT - Demand set aside.

Limitation - On perusal of returns which are filed regularly by the appellant, it is found that appellant has specifically stated in such returns that they are clearing goods to their sister units and claiming the benefit of exemption of SAD - It was for the lower authorities to call for any explanation from the appellant, which they have not done so, that being so, revenue authorities cannot turn around and say that they were not informed about the clearance made by the appellant to their sister unit - Demand is not sustainable on merits as well as on limitation.



CCE Vs Hindustan Coca Cola Beverages Pvt Ltd (Dated: December 23, 2013)

Penalty - without any proposal for confiscation, penalty under rule 209A of CER, 1944 is not imposable - no infirmity in order of Commissioner(A) - appeal disposed of: CESTAT [para 6]


Asiatic Gases Ltd Vs CCE (Dated: January 7, 2014)

CX - Interest - in the SCN there is no demand of duty against the applicant u/s 11A(2) of the CEA, 1944, therefore, provisions of section 11AB of the CEA, 1944 are not applicable and accordingly interest is not imposable - applicant has made out a case for 100% waiver of pre-deposit - Stay granted: CESTAT [para 3]


M/s Funskool (India) Ltd Vs CCE (Dated: February 10, 2014 )

Central Excise – Classification of Toys/Games/Puzzles – 9504.90 as claimed by the revenue or 9503.00 as claimed by the assessee – By applying the tests enunciated by the Supreme Court in 2009-TIOL-118-SC-CX. , it is to be held that 8 items are to be classified as toys under CETH 9503.00 – 14 items merit classification as games under CETH 9504.90.

Toys imitate in miniature the wo rld familiar to children - Reduced size models of various games and should be considered under S.H. 9503.

Where the outcome is not predetermined and no clue is given and there is luck and chance, the same cannot be considered as puzzle under CETH 9503.

Difference of opinion in respect of four items, Chip N Dale, Duck Tale Disney, Fox and Geese and Rally – According to Member (J), items merit classification under 9503.00 – According to Member (T) these items merit classification under 9504.90 as games – Matter referred to Third Member.



Kirloskar Oil Engines Ltd Vs CCE (Dated: January 3, 2014)

CE - Refund - duty has been paid under protest on intermediate product by the appellant on persuasion of the department - the same has also not been shown as receivable in the books of account - no justifiable grounds exist for remanding the matter - since appellant has failed to produce any cogent evidence in support of their claim of refund, no infirmity in the order of Commissioner(A) - appeal dismissed: CESTAT [para 6]


Bharat Petroleum Corporation Ltd Vs CCE (Dated: January 3, 2014)

CE - Petroleum products stock transferred to various depots without payment of duty under bond - Duty on account of transit losses which are in excess of condonable limit of 1% has been confirmed against appellant and same is not disputed - whether the appellants are required to pay interest on this delayed payment of duty - matter remanded to adjudicating authority to consider the issue afresh in accordance with law: CESTAT [para 4]


JSW Ispat Steel Ltd Vs CCE (Dated: January 7, 2014)

Rule 2(l) of CCR, 2004 - CENVAT - Telephones installed at residence of officers of the company - Air Travel Agent services utilized by company personnel - whether credit available of tax paid on such services - issue no more res integra - services are input services as they are availed in the course of business activity - credit admissible - appeal allowed with consequential relief: CESTAT [para 3]


Kundan Industries Vs CCE (Dated: December 26, 2013)

Rule 21 of CER, 2002 - Remission of duty in respect of finished goods destroyed in fire denied by Commissioner on the ground that appellant has not reversed the credit taken on inputs which have gone into manufacturing of final product - Larger Bench in case of Grasim Industries has held that in case of destruction of goods due to natural causes, inputs have to be considered as having been put to intended use for manufacture - no requirement of reversal of CENVAT credit on inputs in such situations - issue no more res integra - appeal allowed with consequential relief: CESTAT [para 6]


M/s Pooja Forge Ltd Vs CCE (Dated: December 30, 2013)

CENVAT – Short reversal of credit of Rs.49.03 lakhs while clearing inputs to own Unit-II under rule 3(5) of CCR, 2004 – on the Audit party pointing out deficiency, appellant paying the same along with interest of Rs.2.01 lakhs – appellant contending that balance interest of Rs.5.60 lakhs not payable as they had sufficient amount of CENVAT credit at the relevant time and hence had not utilized the credit – lower authorities confirming demand of interest – appeal before CESTAT. Held: clearances took place during the period 2007-08 & upto December 2008 and SCN was issued on 22.1.2010 – as provision of limitation are applicable to the recovery of interest, SCN is barred by limitation – also entire exercise is revenue neutral & credit was not utilized but lying in the books of account – order set aside & appeal allowed with consequential relief: CESTAT [ paras 4, 5, 6]


Kumbhikasari Ssk Ltd Vs CCE(Dated: January 16, 2014)

CX - Classification of Brown Sugar under same heading 23.01 as applicable to Bagasse would not alter position about applicability of Rule 6 - Tribunal has clearly mentioned in its order that it has gone through various case laws cited by appellant – ROM application contending that Tribunal has not considered the case laws relied by appellant is without merits, hence dismissed: CESTAT [para 3]



M/s Jupiter Enterprises Vs CCE (Dated: December 3, 2013)

Central Excise - Manufacture of parts of sizing machines and assembling the sizing machines at the premises of the purchaser along with the bought out items delivered at site directly - Demand of duty on sizing machines assembled at site - The adjudicating authority has erred in coming to conclusion that he is empowered to the

demand duty on sizing machines, which are assembled and came into existence at the site of the buyers of the appellant which are situated beyond jurisdiction of adjudicating authority / the Commissioner of the Central Excise. Limitation - The appellant had informed the Department about the purchase of various parts which are required for erection / assembling of sizing machine at their customer's premises - No case for invoking extended period. Penalty - Appellant conceded demand in respect of warping machines - Benefit of cum-duty to be extended - Penalty under Section 11AC reduced to 25% of the re-worked duty liability - No separate penalty on the partner of the firm can be imposed as penalty has already been imposed on the firm.


M/s S M Engineering Works Vs CCE (Dated: November 20, 2013)

Central Excise - SSI exemption under Notification No.1/93-CE - appellants engaged in manufacture of automobile spare parts, diesel generator parts and railway parts out of castings procured from various manufacturers - In respect of castings embossed with brand names KW and KEWL, Revenue entertained a view that appellant manufactured their final products under brand name belonging to M/s. Krishna Engineering Works and as such they were not entitled to the benefit of Small Scale Industries Notification - Seizure of finished goods effected and adjudication proceedings initiated - in respect of M/s. SM Engineering Works and M/s. Juneja Engineering Works, SCNs vacated by the original adjudicating authorities on the ground that no affixation of brand name stand done by the said assessee and the brand name embossed on the castings, which is a raw-material for the appellant, would not result in denial of the benefit of small scale industries exemption to them, upheld by Commissioner(Appeals) and culminating in the instant departmental appeals - in the case of M/s. Auto Spares (India), while the original authority confirmed demands, Commissioner (Appeals) upheld the demand but reduced the penalty - appealed against by the assessee against the confirmation of demand as also by the Revenue against reduction of penalty - Notices invoking proviso, covering past periods invo lving branded castings also confirmed and agitated.

Held: plethora of decisions holding that the presence of brand name of another person on the inputs/raw-materials used for manufacture of final products, when no affixation of any brand name is being done by the manufacturers would not amount to use of brand name of another person - sufficient for the appellant to entertain a bona fide belief of non-use of brand name so as to be entitled to the benefit of Small Scale Notifications - Apex Court ruling in Menhta Allied Products to the effect that when divergent views are expressed in different decisions, the extended period of limitation cannot be invoked applies to instant cases - demands for past periods hit by limitation and set aside.

Demands confirmed in the seizure cases upheld as not being contested - However, penalties involved in the case of M/s. Auto Spares (India) is set aside and in other two cases as no penalties imposed by the original adjudicating authority, Revenue appeals in respect of penalties are rejected - Revenue appeal against the confirmation of duties are allowed and appeal of M/s. Auto Spare India against confirmation of duty is rejected .


CCE Vs M/s Shriram Foundry Ltd (Dated: December 26, 2013)

CENVAT - in SCN itself 'tools and tips' have been held as capital goods - in such a scenario, Revenue cannot, before Tribunal, argue that they are not capital goods -

there is no bar in the CCR, 2004 that capital goods cannot be sent to job worker, therefore, capital goods used in the factory of job worker is entitled for credit to respondent assessee - although ‘capital goods' could not be returned “as such” after usage, in that circumstances also credit cannot be denied - there is no bar in taking credit of 50% in the subsequent year although the capital goods were in possession of the job workers and more so since they are components of the capital goods and are covered under Rule 4(2)(b) of CCR, 2004 - no infirmity in order of Commissioner(A) - Revenue appeal dismissed: CESTAT [para 6]



CCE Vs Alpha Caronless Paper Manufacturing Co Pvt Ltd (Dated: December 19, 2013)

CE - Classification - ATM Rolls, Printed lottery ticket rolls and printed bus ticket rolls are ‘Products of Printing industry' and classifiable under CETH 4901 of CET attra cting Nil rate of duty - appellant paying amounts under rule 6 of CCR, 2004 and the same is proper and legal - in view of HSN Explanatory Notes, no merit in Revenue allegation that the goods are classifiable under CETH 4823 and attract CE duty - Demand correctly dropped by adjudicating authority - Revenue appeal dismissed: CESTAT [para 6.1]

Amendment made by FA, 2012 to insert chapter note 14 under Chapter 48 so as to classify the impugned goods under respective headings of chapter 48 as long as such products are intended to be used for further printing or writing is not retrospective in operation: CESTAT [para 6.1]



M/s Subramaniya Siva Cooperative Sugar Mills Ltd Vs CCE (Dated: July 31, 2013)

Central Excise - Stay/Dispensation of pre-deposit - CENVAT Credit - Dutiable and exempted goods - Demand of 5%/10% on the value of bagasse, press-mud, vermin compost generated during manufacture of sugar and molasses - Prima facie case made out for waiver of pre-deposit.


M/s Australian Foods India Pvt Ltd Vs CCE (Dated: August 21, 2013)

Central Excise - Stay / dispensation of pre deposit - Valuation - Applicant assessed cookies and dough cleared in bulk to institutional customers under Sec 4A of the Central Excise Act 1944 - department viewed that the clearances be assessed under Section 4 ibidem, and confirmed duty demands with interest and penalties in adjudication - Commissioner (Appeals) dismissed their appeal for non compliance of Section 35F - Matter in one SCN travelled through Settlement Commission and Chennai HC to the Apex Court in Civil Appeal No. 1377 of 2011, who stayed the demand subject to pre deposit.

Held: Apex Court stay inapplicable to remaining demands - Chennai HC ruling in favor of the department for assessment of impugned clearances under Sec 4 is applicable -

prima facie case for absolute waiver not made out - applicant to deposit a sum of Rs.8,00,000/- (Rupees eight lakhs only) within a period of six weeks; upon compliance, pre deposit of the balance dues stands waived and recovery thereof stayed during the pendency of the appeal.


M/s Suzuki Processors Vs CCE (Dated: October 15, 2013)

CE - Allegation of Revenue that appellant had created a facade and that the said unit was an extended limb of appellant inasmuch as the entire finances and control of the unit is done by appellant is not borne out by records - matter in controversy warrants extensive examination from various angles and testing evidence rigorously - appreciating that whim and caprice are alien to justice, and noticing that balance of convenience tilts in favour of the assessee, dispensation of pre-deposit till disposal of appeal would serve interest of justice - Unconditional Stay granted: CESTAT by Majority [para 24]

CE - Comments by the third Member are not appropriate and proper inasmuch as the third Member is not deciding the matter in an appellate capacity and as such, is not in a position to comment upon the orders recorded by his co-brothers: referring Bench CESTAT [ para 23]



M/s Bata India Ltd Vs CCE (Dated: August 26, 2013)

Central Excise - Stay / dispensation of pre deposit - input services credit under Rule 2(l) of Cenvat Credit Rules 2004 availed on various services by applicant's Headquarter office and redistributed under ISD document - department viewed that as the services were rendered at the Corporate Office and Regional Distribution Centers other than factory premises and, therefore, has no nexus with the manufacturing activity - credit denied in adjudication and recovery with interest and penalty confirmed, agitated herein.

Main disputed services are Manpower Recruitment Agency, Management Consultants, Royalty Services etc. - in the applicant's own case, stay was granted on all the items of services except in respect of tax relating to 'transportation of goods' from RDCs to retail outlets - total amount involved in such transportation in these two cases will be around Rs.20 lakhs - Considering the precedent order, applicant directed to make a pre -deposit of Rs.20,00,000/- (Rupees Twenty lakhs only) within six weeks, upon compliance, pre-deposit of balance adjudged dues is waived for admission of the appeals and its collection stayed till the disposal of the appeals.

2014-TIOL-216-CESTAT -BANG

CC, CE & ST Vs The Andhra Sugars Ltd (Dated: December 3, 2013)

Central Excise - CENVAT credit of duty paid on MS plates, Angles, Sheets, and Channels etc., used in repairs and maintenance - admissibility agitated by Revenue citing APHC ruling in Rayalseema Hi strength hypo case law. Matter has been examined by three High Courts and decided in favor of appellant - decisions preferable to APHC ruling relied upon by Revenue, as ruled in Panipat Co-Operative and Kisan Sahakari case laws - no merit in Revenue's appeals.


Kent Introl Pvt Ltd Vs CCE (Dated: November 11, 2013)

CE - Exemption under Notification 6/2006-CE - from the certificate given by the Project Implementing Authority, it is clear that the appellant's name figures as a sub-contractor and supplies were made in respect of contract awarded under International Competitive bidding for petroleum explorations undertaken by ONGC - Goods are to be construed as supplied against International Competitive bidding - so also condition no. 29 referred to in Notification 21/2002-Cus are to be satisfied by importers of goods and do not apply to domestic manufacturers - Benefit of exemption available - Order set aside and appeals allowed: CESTAT [paras 5.1 & 5.2]


M/s Glass And Ceramic Decorators Vs CCE (Dated: November 12, 2013)

CENVAT - Glass Printing Machine imported during the year 2003-04 and credit availed thereon in two installments - subsequently, in year 2006 appellant exported this machine under bond - Revenue view that credit has to be reversed - On export of capital goods, the appellant is eligible for rebate of the duty paid thereon u/r 18 of the CER, 2002 or the appellant can export the goods without payment of duty under bond u/r 19 - Board Circulars clearly say that the manufacturer is entitled to clear the inputs or capital goods for export (on which credit has been taken) under bond without payment of duty - strong prima facie case in favour - stay granted: CESTAT [para 5.1]


M/s Heubach Colour Ltd Vs CCE (Dated: November 9, 2013)

Central Excise - Stay / Dispensation of pre deposit - Appellant firm, a 100% EOU, cleared goods to DTA based upon the positive achievement of the NFE during the period 2005-2006 to 2009-2010, without having any permission from the DGFT authorities - issue involved in the instant case highly arguable - Development Commissioner in his Order-in-Original specifically recorded lapse for not taking authorization before making DTA sales, but has not retrospectively granted any permission for DTA sales to the appellant for the period in question - Department is correct in demanding the duty at the full rate appellant to deposit an amount of Rs.1.50 Crores (Rupees One Crore and Fifty Lakhs only) within a period of eight weeks - upon compliance, the applications for waiver of pre -deposit of balance amounts involved are allowed and recovery thereof stayed till the disposal of appeals.


Alok Enterprises Vs CCE (Dated: January 9, 2014)

CE - Rule 8 of CER, 2002 - mis-calculation in payment of duty for the month of March, 2007 which resulted in a short payment of Rs.10/- which was paid by the appellant on his own in the month of June, 2007 - no cause for resorting to the provisions of rule 8(3A) of CER, 2002 and seeking recovery of duty on clearances which were effected by utilizing CENVAT credit and imposition of equivalent penalty and interest - proceedings not warranted - order set aside and appeal allowed: CESTAT [para 4]


NOCIL Vs CCE (Dated: December 6, 2013)

CE - Excess amount of CENVAT credit reversed by assessee is not a duty, therefore, the provisions of section 11B of the CEA, 1944 are not applicable - Assessee is entitled to take suomotu credit - no requirement of filing refund claim - Appeal allowed with consequential relief: CESTAT [para 7]



CCE Vs M/s Orient Steel Re-Rolling Mill (Dated: November 27, 2013)

Central Excise - Valuation - Rule 10 read with Rule 8 of the Central Excise Valuation Rules, 2000 – Clearances to the unit interconnected as defined in Section 2 (41) of the Companies Act, 1956 sought to be treated as clearances to related unit under Section 4 (3) (b) of the Central Excise Act 1944 – differential duty demands raised with interest and penalty in adjudication, but set aside by Commissioner (Appeals) on the ground that in te rms of Rule 10 of the Central Excise Valuation Rules, interconnected undertakings are to be treated as related persons only if they are so connected that they are also related in terms of sub-clause (ii), (iii) or (iv) of Clause (b) of Sub-Section 3 or Section 4 of Central Excise Act 1944 or buyer is a holding company or subsidiary company of the assessee, while this is not so in the instant case – Order of Commissioner (Appeals) is agitated by Revenue herein.

Held: show cause notice treats the respondent and M/s P.S. Steel Tubes (P) Ltd. as related persons only on the basis that they are interconnected undertakings in terms of its definition of this term as given in Section 2 (41) of the Companies Act and the show cause notices, nowhere discusses as to how the conditions prescribed in Rule 10 of the Central Excise Valuation Rules, 2000 are satisfied, that is either the buyer is holding company or subsidiary company of the assessee or the two are so connected that they are also related in terms of Clause (ii), (iii) or (iv) of Clause (b) of sub-Section (3) of Section 4 of the Act - No allegation, nor evidence to show that the respondent and M/s P.S. Steel Tubes (P) Ltd. have interest in the business of each other - For applying Rule 10 read with Rule 9 and Rule 8 of the Central Excise Valuation Rules, the mere fact that the assessee and his buyer are interconnected undertakings is not sufficient and it has also to be shown that either the buyer is holding company or subsidiary company or is also so connected with the assessee that they are related persons in terms of Clause (ii) or (iii) or (iv) of Section 4 (3) (b) of the Central Excise Act - In the instant case, neither is M/s P.S. Steel Tubes (P) Ltd. a holding company nor subsidiary company of the respondent - no evidence to prove that the respondent are so connected with M/s P.S. Steel Tubes (P) Ltd. that they are also related in terms of Clause (ii), (iii) or (iv) of Section 4 (3) (b) - They cannot be treated as related persons and, as such, there is no infirmity in the impugned order - Revenue's appeal dismissed.


Shri Shashikant Chaurasia Vs CCE (Dated: November 29, 2013)

Central Excise – Stay application disposed of when the appellant was not present and subsequent miscellaneous application was also rejected ex-parte – Considering the fact that applicant entertained a reasonable belief as the internet cause list uploaded by the Registry did not show the matter as having been listed on the date of hearing, stay order and miscellaneous order are recalled.

2014-TIOL-198-CESTAT -KOL

M/s S K Samanta And Co (P) Ltd Vs CST (Dated: November 11, 2013)

ST - Tribunal ordering pre -deposit of 25% of ST confirmed - matter remanded by High Court for reconsideration - applicant submitting that applicability of Notfn . No.12/2003-ST dated 20.06.2003 claiming exemption on the value of the materials used in providing the services of erection and commissioning was not examined while passing Order by Tribunal and if the notification is extended there would be no liability - however, it is accepted that scrutiny of evidences is required - applicant pleading severe financial hardships - however, applicant offering to make pre -deposit of Rs.1 crore - applicant directed to make pre-deposit of Rs.1 Crore for obtaining stay: CESTAT [ para 4]


Shri Mukhesh Sangla Vs CCE (Dated: November 12, 2013)

Penalty - CENVAT - issuance of CENVATable invoices by first stage dealer without supply of goods - penalty imposed against MD of the appellant firm - it is noticed that the MD has given statement on two occasions, both statements interspersed by a considerable period of time, clearly admitting that they had issued CENVATAble invoices without supply of any goods - these statements have not been retracted - investigation has also brought on record that LRs issued for transportation of goods were in the names of companies which were found to be non-existent - no case made out for waiver of pre -deposit of penalty - Pre -deposit ordered: CESTAT [paras 5.1 & 6]


Rohm & Hass (I) Pvt Ltd Vs CCE & C (Dated: August 5, 2013)

CENVAT - Appellant discharged CE duty liability on the activity of repacking and this duty payment was not challenged by the Revenue - it is the contention of Revenue that since the activity undertaken does not amount to manufacture, the appellant is not eligible for the credit of the CVD paid on the imported input materials - even if the appellant had not discharged any excise duty liability, they could have claimed drawback of Customs & Excise duty paid on input materials - therefore there is no incentive for the appellant to undertake repacking activity and discharge duty liability with an intention of gain any undue benefit - prima facie, appellant has made out a case in their favour - unconditional waiver from pre-deposit granted: CESTAT [paras 5, 5.1 & 6]


United Pesticides & Nonionics Pvt Ltd Vs CCE (Dated: August 23, 2013)

CE – s. 35C of CEA, 1944 - Order of remand mentioning that verification should be done of the fact as to whether the input services were actually received in the manufacturing premises and whether there is a nexus with manufacturing activity merely makes obvious the position sanctioned by the statute – no mistake apparent on record – ROM application dismissed: CESTAT [para 3]


M/s Gwalior Polypipes Ltd Vs CCE (Dated: December 10, 2013)

CENVAT - Invoices is sued by service provider in the name of head office/registered office - whether benefit of CENVAT credit can be extended to manufacturer assessee - issue no longer res integra - CENVAT credit cannot be denied especially when there is

no dispute about the receipt and utilization of Services and about the eligibility of the CENVAT credit - Appeal allowed with consequential relief: CESTAT [ paras 2 & 3]


M/s Beltek (India) Ltd Vs CCE (Dated: October 9, 2013)

Central Excise – manufacture – DVD/VCD Players and Multiplayers custom made overseas, imported and subject to testing, affixing logo and warranty holograms, repacking and subsequent clearance by appellant viewed by department as amounting to manufacture under clause (iii) of Section-2(f) of the Central Excise Act, 1944 – duty demand confirmed in adjudication with interest, apart from penalties on firm and individuals; redemption fine imposed on provisionally released seizure and agitated herein.

Held: Goods have undergone requirement of ‘goods manufactured', with MRP having been affixed and goods having been duly cleared by the customs, there is no cause for asking duty on the same product merely because sticker of warranty and the chassis number have been pasted on these containers - concept of deemed manufacture being attracted only in the circumstances where the products were marketable even before affixing the label - activity of mere putting warranty stickers and pasting chassis number will not amount to manufacture as goods are already packed and bearing MRP stickers at the stage of import itself – Commissioner's findings set aside.


M/s Gem Granites Vs CCE (Dated: July 4, 2013)

Central Excise – Stay / Dispensation of pre deposit – 100% EOU – goods cleared under Notification No.23/2003-CE dated 31.3.2003 into DTA – duty demands confirmed with interest and penalty in adjudication for violation of condition at Para No.3A of the notification. Held: impugned order recorded that the allegation of non-fulfillment of the condition of exemption under Sl. No.3A of the said Notification has not been contested by the applicant – contentions regarding the limitation and the manner of quantification of the demand of duty would be looked into at the time of appeal hearing at length - applicant failed to make out a prima facie case for waiver of predeposit of entire amount of duty along with interest – pre deposit of Rs.10,00,000/- (Rupees ten lakhs only) directed within a period of eight weeks and report compliance - Upon such deposit, pre deposit of the balance dues stands waived and recovery stayed during the pendency of the appeal


Shri Hiren Rameshbhai Kapadia Vs CCE (Dated: September 25, 2013)

CE - Although the SCN is directing the appellants to show cause as to why penalty should not be imposed u/r 26(2) of the CER, 2002, the adjudicating authority has not imposed any individual penalty on them but has sought to recover amount with interest and penalties imposed on M/s Aishwarya International or its proprietor - such amounts cannot be recovered from individuals who are, prima facie , in no way connected with the activities of such firms - appellants have made out a prima facie case for waiver of pre -deposit of amounts attributable to them by the adjudicating authority - Pre -deposit waived and stay granted: CESTAT [ para 6]


M/s Reliance Chemotex Industries Vs CCE (Dated: November 26, 2013)

Central Excise - CENVAT credit - Refund of credit in respect of inputs used in the manufacture of export of yarn, in terms of the provisions of Rule 5 of CENVAT Credit Rules, 2004 sought and granted - Appellant required to reverse credit in the cenvat accounts of both basic excise duty (BED) and Additional Excise Duty (AED) leviable under "Additional Excise Duty (Textile and Textile Articles) Act, 1978 - reversal of AED partly from AED head and partly from BED head disputed by department, proposal for recovery of entire AED amount refunded erroneously confirmed in adju dication and upheld by Commissioner (Appeals), agitated herein. Held: Under Rule 3(4) of the Cenvat Credit Rules 2004, the credit availed either in respect of BED or in respect of AED can be utilised for payment of any duty of excise on any final product - clear that BED and AED could have been utilised for payment of each other - Commissioner (Appeals) rejected the said contention on the sole ground that the appellant has not maintained their CENVAT credit account in the manner they should have maintained and in the manner which now pleaded by them - said manner which stands pleaded by the appellant is not against the provisions of cited Rule 3(4) - in as much as BED and AED could have been utilised inter-challengeably, action of the lower authorities cannot be held to be justifiable - Accordingly, the impugned order is set aside and appeal is allowed with consequential relief to the appellant.


Kabeer Plastic Industries Vs CCE (Dated: November 15, 2013)

Notfn. 8/2003-CE - SSI exemption - appellant manufacturing plastic bottles with the brand names of customer's printed on them - SSI benefit denied - section 11C Notification 10/2013-CE(NT) , dated 02/08/2013, extends benefit of SSI in respect of such bottles affixed with brand name of user of goods, for the period 16/06/2003 to 26/02/2010 - appellant entitled to benefit of SSI exemption - order set aside and appeal allowed: CESTAT [para 5]


M/s Gujarat Guardian Ltd Vs CCE & ST (Dated: December 17, 2013)

Central Excise - Cenvat Credit - Tax paid on GTA services from the place of removal to the place of delivery - credit denied in adjudication, confirming recovery with interest and imposition of penalty; on grounds that with the amendment of the definition of "Input Services" under Rule 2(l) of the Cenvat Credit Rules, 2004, vide Notification No.10/2008-C.E.(N.T.) dated 01.03.2008, Cenvat Credit of Service Tax paid on GTA Services from the place of removal is not admissible. Held: The words "upto the place of removal" were existing as "from the place of removal", before 01.04.2008 - from the amendment to the definition of "Input Service", it is apparent that the Service Tax Credit on GTA Services from the place of removal will not be admissible to the Appellant w.e.f 1.4.2008 and has been correctly denied by the Adjudicating Authority - Apex Court ruling in Ind Swift case specifically interp reting Rule 14 is applicable in respect of interest liability - conflicting views on admissibility of Cenvat Credit on Services in relation to the activities in relation to business during material period in dispute - penalty not attracted and appeal allowed to the extent of penalty alone.


M/s Nitco Ltd Vs CCE (Dated: November 13, 2013)

CENVAT - Credit on Construction services employed for storage of imported goods and

which were traded - Prior to 2011, trading was not considered as service at all and, therefore, the appellant could not have taken credit pertaining to the trading activities ab initio - Service Tax credit can be distributed only if the services were received at the manufacturing premises and if it is received elsewhere, it is not permissible to avail of the Service Tax credit - Pre -deposit ordered of Rs.3 Crores: CESTAT



M/s Gelnova Laboratories (I) Pvt Ltd Vs CCE (Dated: October 28, 2013)

CE - Valuation - Physician samples - Requirement of displaying the retail price is only for the goods intended for sale - since physician samples are not intended for sale, requirement to indicate the retail sale price does not exist in the law - as held by Tribunal in various cases, physician samples manufactured on principal to principal basis are required to be assessed u/s 4(1)(a) of the CEA - appeals allowed: CESTAT [paras 5, 6, 7 & 8]


CCE Vs Forward Precision Engineers Pvt Ltd (Dated: November 29, 2013)

CENVAT - Respondent is a manufacturer or steel balls and S.S wires is one of their inputs - respondent availing credit on S.S. Wires procured as input from wire manufacturer - as activity of wire drawing does not amount to manufacture, therefore, Revenue alleges that the suppliers of S.S. Wires were not required to pay duty and consequently respondent not entitled to take CENVAT credit - appeal of assessee allowed by Commissioner(A) & therefore Revenue in appeal. Held - Board Circular 720/36/2003-CX.4 dated 29.05.2003 holding that drawing of steel wire from wire rods is not manufacture was over-ruled by Circular 831/1/2006-CX dated 26.07.2006 clarifying that sum paid by wire drawing unit in such cases will be treated as duty and shall be allowed as credit to the buyer - notfn. 28/2010-CE(NT) again clarifying that CENVAT credit taken by buyer of wires up to 8.7.2004 cannot be denied - issue no more res inte gra - Revenue appeals dismissed: CESTAT [para 4]


M/s Kores (India) Ltd Vs CC & CE (Dated: December 4, 2013)

CE - Valuation - Drilling Rigs - Bought out items like slips, spider/spider bushing, drill collar & travelling block whether to be added in AV of Drilling Rigs - although drilling rigs have necessarily to be used in conjunction with the bought out items, these do not constitute parts of such machines as they are complete items in themselves - as they are not integral parts of drilling machines but are in the nature of tools and other equipment, their value is not required to be added in AV - Appeal allowed: CESTAT [paras 5 & 5.1]



CCE Vs M/s EMCO Limited (Dated: December 12, 2013)

CE - Valuation - Respondents are engaged in manufacture of Transformers and the same are transported to the place of their customers where respondents undertake supervision of erection and commissioning - Charges in respect of escort, supervision

of erection and commissioning are after clearance of the goods and the same are not to be added in the Assessable value - no infirmity in order-in-appeal - Revenue appeal dismissed: CESTAT [para 5]


Radhey Shyam Gupta Vs CCE & ST (Dated: December 3, 2013)

Central Excise - Stay/Dispensation of pre-deposit - Gutkha - Evasion of duty - During the search conducted, it was found that two FFS machines are operational in adjacent halls of the registered premises manufacturing Gutkha under the brand name of appellant - At the stage of consideration of stay, sufficient evidence exists in respect of recovery of FFS machines alongwith raw materials supported by statement recorded which is sufficient to create balance of convenience in the favour of the Revenue - As per provisions of Rule 17 & 18 of Pan Masala Packing Machines (Capacity Determination and Collection) Rules, 2008 and prima facie view of outcome of investigations, appellants are liable for payment of duty - Pre-deposit of Rs one crore ordered.

Documents

CESTAT RULING (CENTRAL EXCISE)...M/s Themis Medicare Ltd Vs CCE & ST (Dated: January 10, 2014) CENVAT - appellant had availed CENVAT Credit on inputs which were consumed for the manufacturing