CESTAT RULING - Taxindiaonline.com · M/s Genus Electrotech Ltd Vs CCE, Rajkot (Dated: March 18, 2009) Central Excise – Assessee cannot be compelled to avail balance CENVAT credit

CESTAT RULING

2009-TIOL-859-CESTAT -MUM

M/s Rochem Separation Systems (India) Pvt Ltd Vs CCE, Thane-II (Dated: March 25, 2009)

If all the machineries that are required to set up a plant can get a benefit, there is no justification to deny the benefit to the plant itself - Desalination Plants being Water Treatment Plants are entitled for exemption from Central Excise duty in term s of notification 6/2006-CE - Tribunal.

Tribunal's observations –

CBEC Circular 659/50/2002-CX. dated 06.09.2002 makes it very clear that the concession under Notification No. 47/2002-CE dated 6.9.2002 will be available regardless of whether the full plant is imported or only some machinery/equipment is imported (including when it is imported in CKD/SKD). The Commissioner has held that the CBEC circular provides for exemption to the plant on the Custom side and not on the Central Excise side and that para 3 of the said Circular clarifies only about the exemption from excise duty to machinery, including instruments etc required for setting up of water treatment plant intended to treat water to make it fit for consumption of humans or animals. We are of the view that this approach of the Commissioner is discriminatory. It can never be the intention of the Government to tax the goods manufactured in India and exempt identical goods imported from outside India. Once a benefit has been extended to the goods imported from outside India, the same will have to be extended to the goods manufactured indigenously as well. The language of the Heading 98.01 is similar to the language employed in the Notification No. 6/2002-CE dated 1.3.2002 as amended and, therefore, the clarification of the Board will equally apply to the said Notification No. 6/2002-CE dated 1.3.2002 as amended.

If all the machineries that are required to set up a plant can get a benefit, there is no justification to deny the benefit to the plant itself . It is only logical that the exemption, which is available to all items of machinery including instruments, apparatus and appliances, auxiliary equipment and their components/parts required for setting up of water treatment plants, should be available to the plant also. Any contrary interpretation, which defeats the objective of the Notification, needs to be avoided.

The appellants have fulfilled the condition No. 47A of the Notification No. 6/2002-CE dated 01.03.2002, as amended in as much as they have submitted the certificate from the Collector and District Magistrate, Jaisalmer, in relation to Supply Order No 1017/SO/OT-0832/2005-06/08/OW dated 26.10.2005 and a similar certificate has been issued by the Collector and District Magistrate, Jaisalmer, vide letter No. 1502 dated 22.10.2005 in respect of Supply Order No. 3321/OT-23/05-06/16/OW dated 30.09.2005. demand of duty of Rs.87,16,610/- is not sustainable. The same is set aside.

Since the demand itself has been held as unsustainable on merits, the question of imposition of penalty on the appellants and demanding interest from them does not arise. The same are set aside.

Also see analysis of the Order

2009-TIOL-858-CESTAT -AHM

M/s Peass Industrial Engineers Ltd Vs CCE, Vapi (Dated: January 9, 2009)

Common inputs used in dutiable as well as exempted goods - payment of amount of 8% under Rule 6 of Cenvat Credit Rules, 2002 is not required when the amount equivalent to credit a ttributable to input used in exempted goods is paid before removal of exempted goods - Larger Bench decision of the Tribunal in the case of Nicholas Piramal (2008-TIOL-1877-CESTAT-MUM-LB) relied upon.


M/s Adani Energy Ltd Vs CCE, Ahmedabad (Dated: April 15, 2009)

Central Excise – Centralized registration permitted for CNG manufacturers in terms of Board Circular dated October 16, 2008 – Matter remanded to Commissioner for de novo adjudication of CENVAT claims after Chief Commissioner decides on centralized registration


M/s Micro Inks Ltd Vs CCE, Daman (Dated: February 24, 2009)

Central Excise – Rule 10 of CCR does not exclude transfer of CENVAT credit on conversion of DTA into 100% EOU – No requirement under law to seek such transfer of credit – Prima facie case made out in favour of assessee – Unconditional stay granted


M/s Inductotherm (India) Pvt Ltd Vs CCE, Ahmedabad (Dated: February 5, 2009)

Central Excise – Induction melting, heating furnace, welder & parts thereof cleared against certificates issued by specified institutions exempt under notification 10/97-CE – Goods supplied to specified institutions for research purpose against a certificate by appropriate authorities to be held as covered by the exemption Notification – Order passed by original authority upholding revenues contention that the goods are not scientific and technical instruments set aside


M/s Indu Nissan Oxo Chemical Indus Ltd Vs CCE, Vadodara (Dated: February 12, 2009)

Central Excise – Classification of iso heptane – When manufacturing process furnished to department along with classification declaration and Revenue has not disputed the correctness thereof, extended period of limitation not invokable – Legally no requirement for assessee to furnish lab report of every product manufactured - Onus lies with revenue to get products tested – Impugned order set aside


M/s General Motors India (P) Ltd Vs CCE, Vadodara (Dated: February 24, 2009)

Central Excise – Credit to be reversed when capital goods are cleared to ancillary units on non-returnable basis – No malafide attributable as non-reversal was not due to any ulterior motive – Duty confirmed but penalties set aside

2009-TIOL-848-CESTAT -MAD

CCE, Madurai Vs GEE GEE Paints (Dated: March 24, 2009)

Central Excise – Classification - Colouring Oxides – Colouring oxide such as red oxide, green oxide, blue oxide etc. are classifiable under Central Excise Tariff Sub Heading 3206.90. Note 1 to Chapter 32 covers “preparations based on colouring matter of a kind used for colouring any material”, as the product in question is a preparation based on earth colours and not earth colour per se. ( Para 2)


CCE, Mumbai Vs M/s Apar Industries Ltd (Dated: March 24, 2009)

Common cenvatted input chemicals also used in manufacture of Transformer Oil on job work basis in terms of notification 214/86-CE – proportionate credit reversed while clearing Transformer Oil to principal manufacturer/supplier – No cause for recovering 8% amount under rule 57CC of CER, 1944 in view of LB decision in Nicholas Piramal (I) Ltd. [ 2008-TIOL-1877-CESTAT -Mum-LB ] – Revenue appeal dismissed.


Dr Writer's Food Products Pvt Ltd Vs CCE, Pune-II (Dated: March 31, 2009)

Rule 6 of CCR, 2004 - common inputs - reversal of credit, before or after clearance of exempted goods, amounts to not taking any credit - Payment of 10% not required - Tribunal No specific finding by the Supreme Court in the case of CCE, Bombay I vs. Bombay Dyeing and Mfg.Co.Ltd. ( 2007-TIOL-115-SC-CX ) that if the credit is reversed after utilization and after the clearance of the exempted goods, it would still amount to taking the credit. Appellant had reversed the credit and paid the interest amount and by doing so had undone the act of taking/utilizing the credit and in the light of the decision of High Courts in Hello Minerals ( 2004-TIOL-57-HC-ALL-CX ) and Maize Products ( 2008-TIOL-596-HC-AHM-CX ) , it amounts to not taking the credit and, therefore, they were not required to pay an amount equal to 10%. New grounds never raised before the lower authorities and in absence of any findings thereon the same cannot be entertained by the Tribunal. Commissioner's order set aside and appeal allowed.Ashok Jindal, Member(J)



Hindalco Industries Ltd Vs CCE, Belapur (Dated: April 2, 2009)

Refund – After issuance of debit note by the buyer and the corresponding credit note by seller, the price of the goods stood reduced to the extent of debit/credit and in such circumstances the incidence of duty could not have been assumed to have been passed on to the buyer – Burden placed on the claimant by s. 12B of CEA, 1944 is a rebuttable one – Claim not hit by bar of unjust enrichment – Rajasthan HC decision in A.K.Spintex Ltd. [ 2009-TIOL-12-HC-Raj-CX ] relied upon.


Godrej Industries Ltd Vs CCE, Mumbai-II (Dated: April 1, 2009)

Since there was no proposal in the show cause notice for imposing penalty u/r 25 of CER, 2002, adjudicating authority could not have imposed any.

Imposition of penalty without putting the appellant to notice is negation of natural justice – Order set aside and appeal allowed.


M/s Ajanta Manufacturing Ltd Vs CCE & CUS, Rajkot (Dated: April 24, 2009)

Central Excise – Excess duty paid in PLA by CFL manufacturer eligible for refund in terms of Notification 39/2001-CE and cannot be restricted to duty leviable in terms of exemption notification 6/2006-CE – No specific provision in s. 5A to prohibit a manufacturer from paying full rate of duty when there is only partial unconditional exemption for specified products – Though there is no estoppel in statutory matters, when assessee advised to classify CFL under Chapter 8539 39 10 instead of 8539 31 10 for which notification 6/2006-CE not applicable, excess duty paid cannot be denied as refund



CCE, Nashik Vs Mahindra Sona Ltd (Dated: March 13, 2009)

Canteen services provided by Outdoor Caterers – cost of subsidized food stood included in cost of production of excisable goods, whether or not the cost of food was borne by the workers or the factory – Factory has more than 250 workers and it is mandatory in terms of section 46 of the Factories Act, 1948 to provide canteen to workers – Cenvat Credit available – LB decision in GTC Industries [ 2008-TIOL-1634-CESTAT -Mum-LB ] followed.


Asian Paints Ltd Vs CCE, Mumbai (Dated: April 6, 2009)

Intermediate product supplied to sister unit – provisional value determined in terms of rule 6(b)(ii) viz. cost of production – upon finalization, excess duty is required to be adjusted against short payment, if any – no cause for demand for alleged short payment – Tribunal decision in Goetze (India) [ 2008-TIOL-1897-CESTAT-Bang ] relied upon – Appeal allowed.


CCE, Aurangabad Vs IVP Ltd (Dated: March 26, 2009)

When demand of duty for the extended period is not sustainable, there is no warrant for application of section 11AB or 11AC of the Central Excise Act, 1944 – Tribunal



M/s Genus Electrotech Ltd Vs CCE, Rajkot (Dated: March 18, 2009)

Central Excise – Assessee cannot be compelled to avail balance CENVAT credit on capital goods when depreciation claimed under IT Act – Refund of duty sanctioned by original authority in terms of Notification No. 39/2001-CE in order – Impugned order disallowing the refund claim set aside



M/s IOC Ltd Vs CCE, Chennai (Dated: March 25, 2009)

Central Excise – Stay /Dispensation of pre-deposit – denial of credit on inputs short received - Issue in dispute in the present case stands referred to larger Bench of the Tribunal. Hence, waiver of pre -deposit and stay granted. ( Para 1)


M/s Hindustan Petroleum Corporation Ltd Vs CCE, Mumbai-II (Dated: April 21, 2009)

Oil giant pleads financial hardship – Tribunal directs M/s HPCL to pay Rs.3.5 Crores as pre-deposit in Naphtha case.

Goods supplied to M/s RCF in terms exemption notification 6/2006-CE as amended by notification 48/2004-CE and not being put by M/s RCF for the intended purpose viz. manufacture of fertilizers – Onus is upon M/s HPCL to ensure that goods are exclusively used for manufacture of fertilizers - Duty liability cannot be resisted by M/s HPCL – condition of following CT-2 procedure done away with when notification 6/2002-Ce was amended by notification 48/2004-CE and this position continues in Notification 6/2006-CE.

Earlier stay order dated 19.02.2009 cannot be applied blindly as in the present case the Commissioner has not traveled beyond the show cause notice, the demand is restricted to naphtha used in producing electricity and the goods have not been cleared under CT-2 certificate unlike earlier.

Financial hardship pleaded – Pre -deposit ordered of Rs.3.75 crores against duty demand of Rs.7.52 crores and equivalent penalty – compliance to be reported by 29.06.2009



CCE, Chennai Vs M/s Best & Crompton Engineering Limited (Dated: March 23, 2009)

Central Excise – Duty paid before issue of Show Cause Notice – Penalty - Payment of duty prior to issue of show cause notice is not a ground for setting aside the penalty. However as Section 11AC was introduced only on 28.9.96, re-computation of the penalty amount past 28.9.96 to be done. The penalty under Rule 173Q upto 28.9.96 is also required to be computed afresh. ( Para 2)


CCE, Pune-II Vs Brown Paper Technologies Ltd (Dated: March 30, 2009)

Furnace oil used for generation of steam, which, in turn, was utilized for manufacture of both dutiable and exempted final products – Credit admissible – SC decision in CCE, Vadodara vs. Gujarat State Fertilizers & Chemicals Ltd.

followed – Revenue appeal dismissed.


CCE, Thane-II Vs M/s Permanent Magnets Ltd (Dated: March 25, 2009)

Rule 9 of CER, 2002 – De-registration of certificate - When appeals are pending, it cannot be said that there were enforceable dues to the government as on the date of surrender of registration certificate – Tribunal .


2009-TIOL-822-CESTAT -BANG

M/s Sirpur Paper Mills Ltd Vs CCE, Hyderabad (Dated: February 24, 2009)

Central Excise - Whether the activity carried out in the depot or in the job workers place, is at the behest of the customer or not has to be considere d from the evidences available on record - Pre-deposit ordered - CESTAT.


CCE, Thane-II Vs M/s Aries Pharmaceuticals (Dated: April 24, 2008)

Assessee had maintained separate inventory of the Cenvatable inputs used in the manufacture of exempted goods in Form -IV Register as per the requirement of the Central Excise Authorities, Bin Cards and Batch Cards as per the requirements of FDA and in stray cases where credit was taken on common inputs, they have reversed the appropriate Cenvat credit, and informed in their RG 23A Part II Register - assessee has substantially complied with the provisions of maintaining the two separate accounts for inputs going in exempted and dutiable products - no cause for paying 8% amount u/r 57CC/AD of CER, 1944 - LB decision in M/s. Nicholas Piramal (I) Ltd. Vs. CCE, Thane-I 2008-TIOL-1877-CESTAT -Mum-LB relied upon. Limitation - It is also not a case of suppression as the copies of the RG 23A Part II along with the RT12 returns were submitted to the Range office - thus the fact of proportionate reversal of credit was made known to the Department - Extended period not applicable - Viewed from any angle case does not stand - Revenue appeal dismissed.

2009-TIOL-815-CESTAT -DEL

CCE, Ludhiana Vs M/s Sundesh Springs Pvt Ltd (Dated: December 10, 2008)

Central Excise - CENVAT Credit - availment of CENVAT Credit on the basis of bogus invoices without actually receiving the goods - credit is not admissible - order of Commissioner (Appeals) allowing the credit is set aside and revenue appeal is allowed.


CCE, Coimbatore Vs M/s Ennar Spinnning Mills (Dated: February 13, 2009)

Central Excise – CENVAT – Depreciation claimed on Capital goods – Reversal of credit - Although credit had been availed and depreciation had been claimed in the Income tax Return f iled in the subsequent year, the respondent has deducted the duty element in question in the revised return which would mean that the depreciation though initially claimed, had not been availed. Credit cannot be disallowed. ( Para 2)


M/s Abirami Soap Works Vs CCE, Pudhucherry (Dated: March 23, 2009)

Central Excise – Appeal – Computation of Limitation - The appeal was dispatched by post within the statutory period of limitation of sixty days. The date of dispatch of the appeal and not the date of receipt thereof is relevant for the purpose of computation of limitation. Commissioner (Appeals) to decide the issue on merits. Appeal allowed by way of remand. ( Para 2)


CCL Products ( India ) Ltd Vs CC & CCE, Guntur (Dated: March 20, 2009)

EOU – Destruction of damaged goods – Department does not reply to assessee's letters for over a year – goods destroyed without Departmental supervision – No fault on the part of the assessee – duty, penalty quashed


CCE, Surat-I Vs Ghodela Impex (Dated: January 20, 2009)

Goods manufactured by a 100% EOU out of raw-materials received from another 100% EOU and cleared to DTA – whether eligible for benefit of exemption under Notification No. 8/97-CE, 23/2003-CE – Matter referred to Larger Bench.



M/s Henkel India Ltd Vs CCE, Chennai-II (Dated: January 1, 2009)

Central Excise - Credit availed on inputs and capital goods is not recoverable as along as they are not removed from the factory and are used in or in relation to manufacture the final products. The ratio applies even in cases, where the factory is transfe rred on lease.


CCE, Mumbai-I Vs Mafatlal U Mehta (Dated: March 30, 2009)

A worried department knocks the door of the Tribunal to understand the Commissioner(Appeals)'s order only to be ridiculed – Penalty under s.11AC is mandatory even if major part of duty was paid before and balance after issuance of show cause notice – Tribunal.

Supreme Court decision in Union of India vs. Dharmendra Textile Processors [ 2008-TIOL-192-SC-CX-LB ] relied upon.

Both appeals dismissed.



Johnson Matthey Chemicals India Pvt Ltd Vs CCE, Belapur (Dated: April 24, 2009)

Word “immediately” in rule 4(1) of the Cenvat Credit Rules, 2004 does not lead to an inference that if credit is not taken within a week or 10 days, the credit will be denied – it means at the earliest opportunity – Tribunal grants stay of demand of Rs.4.45 crores

Tribunal observations -

Inputs in question were received during the period from April, 2004 to September, 2006 but the credit was taken on 30.10.2006 and 31.11.2006 – no grievance as regards usage of inputs in or in relation to manufacture of dutiable final products.

Cenvat Credit Rules, 2004 had not prescribed any upper most time limit for the purpose of taking credit – Board letter no. 345/2/2000-TRU dated 29.8.2000 referred.

No outer time limit has been prescribed in the Credit Rules and that there is no warrant to import any specific period of limitation by implication in view of the Apex Court decision in Raghuvar (India) Ltd. [ 2002-TIOL-711-SC-CX-LB ] where it is held that any law or stipulation prescribing a period of limitation to do or not to do a thing after the expiry of period so stipulated has a consequence of creation and destruction of right and, therefore, has to be specifically enacted and prescribed therefor.

Essar Steels Ltd. vs. CCE [ 2007-TIOL-2005-CESTAT -Ahm ] , Coromandel Fertilizers vs. CCE (Appeals), Vishakapatnam [ 2009-TIOL-153-CESTAT-Bang ] relied upo

Single Member Bench of the CESTAT in the case of J.V.Strips vs. CCE , [ 2007-TIOL-2221-CESTAT -Del ] relied by adjudicating authority is contrary to Division Bench decisions in Essar Steels and Coromandel Fertilizers .

Prima facie case for granting complete waiver of the pre -deposit of the duty demanded and the penalty imposed - pre-deposit of duty of Rs.4,45,65,219/- and penalty of Rs.1,10,00,000/- imposed on the applicants dispensed with recovery stayed pending disposal of the appeal.



CCE, Chennai Vs M/s Sundaram Fasteners Ltd (Dated: January 1, 2009)

CE – Inputs removed as such – amount can be paid by 5 th of the following month – No Interest


M/s Planet Electronics Pvt Ltd Vs CCE, Mumbai-II (Dated: April 2, 2009)

Grant of Stay of an order can arise only when it is an executable order – in the absence of any executable order, the question of grant of stay does not arise

Tribunal's observations -

It is elementary rule of law that the question of grant of stay of an order can arise only when it is an executable order. In the absence of any executable order, the question of grant of stay does not arise. The order dated 12.01.2009, which is the subject matter of challenge in the appeal ex-facie discloses that it is an order rejecting the application for modification of the earlier order. By no stretch of imagination, it can be said to be an executable order. Therefore, on this ground itself, the question of grant of stay of the impugned order would not arise.

Whether Tribunal had powers to modify the order of the Commissioner(A) passed in the matter of pre-deposit –

The application which is contemplated under Sec. 35F is to be adjudicated by the lower Appellate Authority or by the higher authority on the point of liability of the appellant to deposit of the amount demanded by the lower authority. The main issue in such an application to be decided is whether the applicants are entitled to be heard on merits of the case without compelling the applicants to deposit the entire amount demanded by the lower authority.

The perusal of the records discloses that what is challenged before the Tribunal is an order passed by lower authority, refusing to modify its earlier order . The concept of modification of the order implies exercise of the power in the nature of power of review of its earlier order. As rightly submitted by the Ld. DR, the law on this aspect is well settled by the decision of the Division Bench of the Bombay High Court in the case of Baron International Ltd . [ 2004-TIOL-03-HC-MUM-CESTAT ] and the Karnataka High Court decision in Mc Dowell & Co. Ltd . [ 2005-TIOL-72-HC-KAR-CX ] inasmuch as after having exercised jurisdiction for the purposes of passing an order for waiver of pre-deposit under proviso to Sec. 35F of the Central Excise Act, 1944 the authority cannot modify that order subsequently like an appellate authority, nor can keep tinkering with such an order as and when applications for modification of the order are filed. Thus, the law on the point as to whether the lower quasi judicial authority has any power to review its order is well settled and in fact, they do not have any such power.

Prima facie there is no substance found in the appeal which has been filed against the order of the Commissioner(Appeals) refusing to modify its earlier order.

Since no case of any financial hardship as such had been made out and bearing in mind the Revenue interest, there is no justification for grant of stay or reduction in regard to the pre -deposit .

On the suggestion of the appellant to refer the matter to the Larger Bench - the occasion for referring the matter to a Larger Bench can arise when on a point of law conflicting views are taken by different Benches of the Tribunal and which is not the case in hand.

Applications dismissed. Pre-deposit to be made within four weeks and

compliance reported on 08.05.2009.



CCE & CC, Vadodara-I Vs M/s Lakshya Enterprises Pvt Ltd (Dated: February 24, 2009)

Central Excise - refund of duty paid on Di Ethyl Phthalate used for denaturing Ethyl Alcohol - no infirmity in the order of Commissioner (Appeals) in extending the benefit of Notification 214/86 CE and allowing refund.


CCE, Kanpur Vs M/s Shivraj Tobacco Co Pvt Ltd (Dated: February 5, 2009)

Central Excise – Chaman bahar powder and pono cream classifiable under 20.01 and not under 2107.91 as proposed by Revenue –Use of fruits, vegetables and parts of plants by assessee for manufacture of finished goods not disputed – Classification considering only two items as fruits and vegetables and ignoring the nature of rest of the ingredients not justified – Perfumery added to preparation does not effect characteristic of goods – Impugned order of Appellate Commissioner upheld


M/s United Telecoms Ltd Vs CCE, Bangalore (Dated: March 3, 2009)

Central Excise – Cenvat credit - when the lapse was pointed out, the credit was reversed, therefore, there was no need to determine the demand under Section 11A - CESTAT.


M/s Chennai Petroleum Corporation Ltd Vs CCE, Chennai (Dated: February 13, 2009)

Central Excise – Refund – Credit notes – Unjust enrichment - The bar of unjust enrichment would not operate when the duty incidence initially passed on to the assessee's buyers is subsequently credited into buyer's account. In the absence of any order from the Hon'ble High Court staying the operation of the Tribunal's orders relied on, there is no reason to wait for the outcome of the case before the High Court and no reason for not following the precedent decision of the Tribunal. ( Para 4)


Sirpur Paper Mills Ltd VsCCE, Hyderabad (Dated: February 24, 2009)

Central Excise - Whether the activity carried out in the depot or in the job workers place, is at the behest of the customer or not has to be considered from the evidences available on record - Pre-deposit ordered - CESTAT.


CCE, Tirunelveli Vs M/s Digvijay Polytex Pvt Ltd (Dated: February 2, 2009)

Central Excise – CENVAT – Capital Goods – Removal as such – Demand – Limitation - Extended Period - When used capital goods are removed the credit initially availed has to be reversed by the assessee. In view of the fact that the respondents had intimated particulars of payment of duty on removal of the capital goods in their monthly return, the allegation of suppression of fact cannot be held to have been substantiated. Therefore, the demand is barred by limitation. (Para 3)


M/s Aparna Udyog Vs CCE, Pune-I (Dated: February 11, 2009)

Scrap value is includible in the assessable value of the goods supplied by the job workers to the principal manufacturers – No prima facie case in view of Apex Court decision in General Engineering Works [ 2005-TIOL-187-SC-CX ] and Mahindra Ugine Steel Co. Ltd. ( 2007-TIOL-1225-CESTAT-Mum ) - Pre-deposit ordered.


M/s Swadesh Khadi Gramudhyog Seva Sangh Vs CCE, Ahmedabad (Dated: January 9, 2009)

Central Excise - exemption under Notification 198/87 CE to products of village industry - merely because the certificate is produced late, the appellants do not become ineligible for exemption- Revenue cannot sit in judgment over the certificate and examine eligibility independently - the appellants are eligible for exemption.


CCE, Nagpur Vs M/s Shri Siddhabali Ispat Ltd (Dated: April 6, 2009)

Cenvat credit is available in respect of Welding Electrodes used for fabricatio n of supporting structure of plant and machinery – Revenue appeal dismissed.


M/s Asiatic Gases Ltd Vs CCE, Mumbai-III (Dated: March 25, 2009)

Assistant Accountant of M/s BOC India Ltd. in his statement admitted that they had not supplied the input Calcium Carbide but only issued invoices to help the assessee to avail Modvat/Cenvat credit – Appellant factory's General Manager also admitted non-receipt of input in factory and both statements are not retracted – Credit not admissible as rule 57A r/w 57G of the CER, 1944 allows credit only if input is received in the factory under cover of valid duty paying document and is used in or in relation to the manufacture of the final product.


M/s Acme Diet Care Pvt Ltd Vs CCE, Ahmedabad (Dated: March 27, 2009)

Central Excise – Excess duty paid available as refund even if debit notes were issued to offset higher billing in view of High Court decision in UOI vs. M/s. A K Spintex Ltd. & ANR 2009-TIOL-12-HC-RAJ-CX


M/s Tagros Chemicals India Ltd Vs CCE, Pondicherry (Dated: February 18, 2009)

Central Excise – CENVAT Credit – demand of interest on excess credit reversed without utilizing the same is set aside – the appellant is entitled for refund of such interest paid.


Tamil Nadu Newsprint & Papers Ltd Vs CCE, Trichy (Dated: February 12, 2009)

Central Ex cise – Stay / Dispensation of pre -deposit - CENVAT Credit – credit on inputs used in the manufacture of capital goods cannot be denied on the ground that the capital goods are immovable property – pre-deposit waived.


M/s Gallaps Text Bombay (P) Ltd Vs CCE, Mumbai (Dated: February 6, 2009)

Exports through merchant exporters - Declaration that they do not claim draw back under the Customs & Excise Duties (Drawback) Rules, 1995 should be made by appellant on the ARE-1 at the time of clearance of the goods and post facto declaration is of no consequence – Refund of deemed credit rightly rejected by Commissioner(A) – Appeal rejected.

2009-TIOL-774-CESTAT-MAD

CCE, Chennai Vs M/s Madhusudhan Industries (Dated: March 5, 2009)

Central Excise – Demand – Extended Period - Limitation – The original authority has rendered a categorical finding that the department is aware of the marketing pattern adopted by the respondents and that they have been periodically paying differential duty on goods sold through depots. The bona fide conduct of the respondents is beyond doubt; there is no intention on the part of the respondents to evade payment of duty. Extended period not invokable. (Para 3)


Parekh Aluminex Ltd Vs CCE, Vapi (Dated: February 2, 2009)

Central Excise - Waste and Scrap - appropriate duty - condition of clearing the waste and scrap on payment of appropriate duty under Notification 43/2001 CE (NT) - the appellant are entitled to clear the waste and scrap by availing exemption under any other Notification - The Commissioner has picked up the word " appropriate duty" from the Notification, but has failed to apply it correctly in the assessment.



CCE, Mumbai-V Vs National Leather Cloth Mfg Co (Dated: January 13, 2009)

Show cause notice issued on 27.12.2000 proposing recovery of wrongly availed modvat credit in terms of the provisions of law viz. rule 57I which had become non est cannot be held to be a valid notice – Tribunal decision in Dow Chemical International Pvt. Ltd. [ 2008-TIOL-834-CESTAT -Mum ] followed.


CCE, Tirunelveli Vs M/s Jaison Garments (Dated: February 4, 2009)

Central Excise – CENVAT – Credit on inputs, inputs in process, and inputs relatable to final products when final product exempted subsequently - There are no provisions in the statute to recover any amount of CENVAT credit availed or utilized in accordance with relevant provisions. Input credit legally taken and utilized on the dutiable final products, need not be reversed on the final products becoming exempt subsequently. In the result, demands for recovery of CENVAT credit relatable inputs and work-in-progress and final products in stock are not sustainable. ( Para 4)


Prakash M Patel Vs CCE, Nashik (Dated: March 13, 2009)

Goods removed clandestinely without payment of any C.Ex. duty – Redemption fine not imposable – Purchaser of goods is aware of non-duty paid character of the goods and hence is liable to penalty under rule 26 of CER, 2002 more so since supplier has conceded the offence and paid up the duty and penalties – Tribunal.

Larger Bench decision in Shiv Kripa Ispat Pvt. Ltd. [ 2009-TIOL-388-CESTAT -Mum-LB ] relied upon.



M/s Birla Ericsson Optical Ltd Vs CCE, Gwalior (Dated: January 1, 2009)

Central Excise – Order rejecting refund claim based on finalization of provisional assessment on the ground of unjust enrichment not sustainable when assessment not challenged in SCN – Every refund claim to pass the test of unjust enrichment in view of Apex Court decision in Sahakari Khand Udyog Mandal [ 2005-TIOL-48-SC-CX-LB ] – Matter remanded to original authority for de novo consideratio n of unjust enrichment


CCE & CC, Rajkot Vs M/s Jyoti CNC Automation Pvt Ltd (Dated: March 6, 2009)

Central Excise - manufacture - demand of duty on job charges - department has not established that the process amounts to manufacture - in absence of any evidence that the process amounts to manufacture, no case to demand duty - revenue appeal has no merit.


CCE, Hyderabad Vs M/s Arch Pharmalabs Ltd (Dated: January 1, 2009)

Central Excise – Section 35B(2) – authorization letter to file the appeal under Section 35 B(2) signed by only one Commissioner instead of the Committee of the Commissioners is not valid – there is a drafting error in using the words “direct any Central Excise Officer authorized by him” in Section 35 B(2) and the same is brought to the notice of the Board to do the needful.

Central Excise – reversal of Credit availed on inputs, capital goods and intermediate goods lost in fire accident – the issue stands settled by the Larger Bench in case of M/s Grasim Industries and revenue appeals has no merit.



M/s Hindustan Zinc Ltd Vs CCE, Jaipur (Dated: February 27, 2009)

Central Excise – Cement used for construction and repair of mines not eligible for CENVAT credit in view of Rajasthan High Court decision [ 2007-TIOL-798-HC-RAJ-CX ] – Impugned order disallowing CENVAT credit upheld – Penalty set aside as the issue involves interpretation


CCE, Coimbatore Vs Sonal Vyapar Ltd (Dated: February 12, 2009)

Central Excise – Cenvat Credit – credit on inputs lying in stock – credit cannot be denied on the ground that the same was availed on the strength of delivery challans once duty paid nature of the goods was not under challenge.


CCE, Mumbai-V Vs M/s Modern Silk Industries (Dated: March 26, 2009)

Embroidered fabrics, which are subject to the process of dyeing, bleaching etc. merit classification under Chapter heading 58.05 and are entitled to exemption under Notification no. 4/97-CE - Tribunal shreds ROM filed by Revenue.

Following findings of Commissioner(A) upheld –

· Chapter 54.06 covers fabrics which fall in the category of base fabrics as against those under chapter 58.05 which covers embroidery in piece, in strips or in motifs. Once embroidered and classified, the fabrics cannot be reverted back to chapter 54.06 for classification.

· A careful reading of Chapter 58 reveals the legislative intention that embroidery is not to be treated as fabrics or else there was nothing for creating chapter heading 58.05 or otherwise it could have been “embroidered fabrics” rather than the word “embroidery” alone.

· The Board's Circular on the subject no. 25/12/69-CX.2 dtd. 18.01.74 underlines the view that once fabrics has been converted into embroidery, it cannot go back to base fabrics for the collection of processing duty and the fabric simply ceases to be base fabrics then and even if certain processes are carried out it still remains to be embroidered fabric.

· Embroidered fabrics, which are subject to the process of dyeing, bleaching etc. merit classification under Chapter heading 58.05 and as such exemption envisaged under Notification no. 4/97-CE is available to the respondent.

Tribunal observations on ROM application –

· It is not open to the Revenue to reargue the matter and call upon the Tribunal to review the basis of the decision. This is beyond the scope of the rectification application.

· Mistake apparent on the face of the record must be an obvious and a patent mistake and not something which has to be established by a long drawn process of reasoning or where two opinions are possible.

Apex Court decision in CCE, Calcutta vs. ASCU Ltd. [ 2002-TIOL-408-SC-CX ] re lied upon.

ROM application of Revenue dismissed.



CCE, Nashik Vs Garware Polyester Ltd (Dated: March 20, 2009)

Interest – Differential amounts paid by the assessee after finalization of the provisional assessment – Interest is payable under Rule 7(4) of the CER, 2002 – LB decision in Cadbury India Ltd. vs. CCE, Pune-I [ 2008-TIOL-1986-CESTAT -Mum-LB ] relied upon – Revenue appeals allowed.


Tech-Coat (Nashik) Pvt Ltd Vs CCE & CC, Nashik (Dated: March 30, 2009)

Condonation of Delay – Submissions of the appellant that the Clerical Assistant in the office of the Consultant, who has since resigned, had received the documents from the appellants but did not file appeal with the Tribunal have been made in a haphazard manner without disclosing the name of the Clerical Assistant or the date of his resignation or his affidavit – Sufficient cause for condonation of delay in filing appeals not shown – Appeals dismissed as time barred.


Hindustan Organic Chemicals Ltd Vs CCE & CC, Mumbai-VII (Dated: March 30, 2009)

Modvat credit allegedly wrongly availed was paid under protest in PLA after receipt of O-in-O – Commissioner(A) setting aside the order and assessee taking credit in Modvat account – Such suo motu taking of credit without filing refund claim is clearly illegal as no provision exists in the CER, 1944 for such an action – Larger Bench decision in BDH Industries Ltd. vs. CCE [ 2008-TIOL-1211-CESTAT-Mum-LB ] followed.


CCE & CC, Nashik Vs M/s Jindal Saw Ltd (Dated: March 23, 2009)

Cost of food formed part of the expenditure incurred by the factory, which had a bearing on the cost of production of final product – Cenvat Credit available of the Service Tax paid on outdoor catering service availed and utilized in the factory canteen for supply of food to factory employees – LB decision in GTC Industries Ltd. [ 2008-TIOL-1634-CESTAT-Mum-LB ] relied upon.

2009-TIOL-746-CESTAT -KOL

M/s La Opala Rg Ltd Vs CCE, Ranchi (Dated: January 26, 2009)

Central Excise - CENVAT Credit on common inputs - demand of 8% on the exempted goods - Assessee Appellants have maintained separate accounts and have intimated the Department well in advance about the percentage of the inputs they would have used in the production of dutiable goods, and have ab initio not taken credit of duty on inputs meant for use in the manufacture of non-dutiable goods, the confirmation of the duty-demand against them is not justified. Review by the Chief Commissioners - the appeal has not been signed by Chief Commissioner appointed by gazette Notification as required under law.


CCE, Dibrugarh Vs M/s Khushi Aromatics (Dated:December 18, 2008)

Central Excise – Another Revenue appeal fails in EZB due to lack of jurisdiction of Review Committee for filing appeal before Tribunal – Review order was passed by a Committee which is contrary to one set up by notification - An authority is appointed and vested power in the manner known to the law through an Official Gazette, any deviation thereto makes the appointee powerless and incompetent to exercise jurisdiction under law – When review order has no locus standi, revenue appeals are liable for dismissal at the threshold

Objects of the Central Excise Act, 1944 and the Customs Act, 1962 are to be fulfilled by appointing officers in the manner laid down by these two statutes. Central Excise Officers who are appointed under the law are defined under Sectio n 2(b) of the Central Excise Act, 1944. They are invested with power by the Board constituted under the Central Board of Revenue Act, 1963. Such Officers exercise powers as conferred by law and discharge duties as required under various provisions of the Central Excise Act, 1944. Appointment of such Officers is to be made by Notification in Official Gazette and their jurisdiction is to be defined by Notification under Rule 3 of the Central Excise Rules, 2002 and requirement of publication of such Notification in the Official Gazette under Rule 2(f) of such Rules is indispensable to make known to the public as to appointment of such public functionaries. This mode of appointment is duly known to law and is a conclusive evidence of following of due process of law which enables them to act as statutory authority thereby within the jurisdiction defined. On failure to so appoint, an authority fails to be invested with statutory powers under law and acts done by such authority shall be nullity…. Para 15



M/s Sterlite Technologies Ltd Vs CCE & CC, Vapi (Dated: February 5, 2009)

Central Excise - Exemption under Notification 108/95 CE - separate certificates from the competent authority are not required for separate units of the same manufacturer - the exemption is provided to the manufacturer but not to the different units - orders placed on one unit and goods supplied from another units of the same manufacturer - impugned order demanding duty is set aside.


CCE, Pune Vs Bajaj Auto Ltd (Dated: March 26, 2009)

Appeal of the assessee allowed by Tribunal on 15.10.2003 and pre -deposit refunded on 22.06.2006 – Assessee's claim for Interest for the period 15.01.2004 (three months from the date of the Tribunal order) till 22.06.2006 correctly upheld by the Commissioner(A) – Board Circular dated 8.12.2004 instructing departmental officers to return pre-deposit within three months from date of order passed merely clarified the legal position – date of Circular is irrelevant - Revenue appeal dismissed.


Finolex Cables Ltd Vs CCE, Pune-I (Dated: March 26, 2009)

Penalty u/s 11AC of the CEA'44 cannot be avoided by mere reason of duty having been paid prior to issuance of show cause notice – Apex Court decision in Dharmendra Textile Processors [2008-TIOL-192-SC-CX-LB] followed – Appeal dismissed.


M/s TI Diamond Chain Ltd Vs CCE, Chennai (Dated: March 26, 2009)

Central Excise – Duty paid under Protest – Refund – Unjust enrichment - The appellant has explained with their pricelist and stock transfer notes, that the sale price represented the value on which they had paid the excise duty under protest and the items of expenditure such as freight and discount. This freight was for transport from depots to dealers and discount allowed; both were not includible in the value for assessment of duty. Further, Chartered Accountants' certificate certified that the impugned claim relates to excise duty paid by the appellants without recovering the same from its customers and accounted in its financial records as excise duty recoverable account. Hence, refund allowed along with interest. ( Para 5)

Interest – Section 11BB - The authorities should have examined the records furnished and intimated the further documents and records required to examine the admissibility of the claim instead of seeking information piecemeal over a period of a year. The Revenue has no case that the appellants had withheld any information sought from them and delayed settlement of the claim. Hence, interest is payable as per Section 11BB from the date of filing the refund claim. ( Para 9.1)


CCE, Chandigarh Vs M/s Nabha Steels Limited (Dated: February 20, 2009)

Central Excise – Clear evidence of dealer clearing goods to one consignee and issuing invoices to another consignee – Description, quantity and transport details in invoices matching with octroi slips in all cases cannot be coincidence – Demand and penalties upheld


CCE, Aurangabad Vs M/s Concept Pharmaceuticals Ltd (Dated: March 24, 2009)

Common input purchased in bulk to reduce cost and cenvat credit taken – when assessee embarked on manufacturing exempted goods, they reversed corresponding amount of cenvat credit – Tribunal's order allowing appeal upheld by High Court, so

Revenue appeal does not survive

Tribunal decision in Concept Pharmaecuticals Ltd. Vs. CCE, Aurangabad 2006-TIOL-638-CESTAT-MUM referred.



M/s Pololight Industries Ltd Vs CCE, Vapi (Dated: February 2, 2009)

Central Excise - classification - non-cellular rubber sheets used for manufacture of foot-ware - the expression "used in the manufacture of footware" used in TSH 4008.21 refers to the intended used of the goods or the ordinary use of the goods or the kind used in the manufa cture of heels & soles etc. The same is only description of the goods required to be classified under the said sub-heading and is not restricted to only those clearances of sheets which are ultimately actually used in the manufacture of heels, soles etc.


CCE, Vapi Vs M/s Apar Industries Ltd (Dated: March 26, 2009)

Central Excise – Interest not payable on differential duty paid through supplementary invoices issued due to price variation clause


Arvind Mills Ltd Vs CCE, Ahmedabad (Dated: March 17, 2009)

Central Excise – Demand of CENVAT credit not sustainable when notification specifically provides for exemption subject to non-availment of CENVAT credit on inputs – Revenue ought to demand duty on finished goods and deny the exemption benefit for violation of condition



CCE, Pune Vs M/s Maharashtra Scooters Ltd (Dated: March 24, 2009)

Addition of an amount of 2% of assessable value as the cost of “design and drawing charges” is totally subjective and imaginary and has no legal basis – Revenue appeal rejected by Tribunal.


We find that 17 show cause notices issued to the assessee during 1992 to 1999 purport to add 2% of the value of the goods as ‘design and drawing' charges and to recover duty on the additional added value.

It is also seen that the price is agreed and contracted between the assessee and their customers.

The assessee have not recovered anything over and above the price contracted. There is no allegation regarding flow back of any additional consideration from the customers to the assessee.

We find that the addition of the amount of 2% of the assessable value for working out the duty liability is totally subjective and imaginary and has no legal basis.

The ratio of the various case laws cited by the Revenue in their appeal memorandum is not applicable as in those case laws the charges for drawing and designing were recovered by the assessees from the customers whereas in the case before us, no such charges have been recovered by the assessee from the customers.

Commissioner(Appeals) order held sustainable. Revenue appeal was rejected.



Indian Nippon Electricals Ltd Vs CCE, Chennai (Dated: February 10, 2009)

Central Excise – CENVAT – Used Capital goods – Cleared as such - In terms of Rule 3 (4) of CCR, credit equal to the amount availed has to be reversed when capital goods are removed ‘as such'. Used capital goods are also covered by the expression ‘as such' occurring in Rule 3 (4) of CCR. ( Para 2)


Ispat Industries Ltd Vs CCE, Raigad (Dated: April 2, 2009)

Transfer of Cenvat Credit – Rule 10 of CCR, 2004 – Transferring manufacturing activities to new premises with new plant and machinery – Arguable matter - Tribunal orders pre -deposit of the Cenvat Credit involved.



M/s Akzo Nobel Non-Stick Coatings Ltd Vs CCE, Ahmedabad (Dated: April 8, 2009)

Central Excise – Letters issued by DGFT invalidating advance licenses as good as ARO, separate ARO not required to be issued – Benefit of exemption for supplies against such invalidation letters not deniable – Impugned order set aside


Pleasantime Products Vs CCE, Mumbai-I (Dated: September 24, 2008)

‘Scrabble Junior' and ‘Scrabble Dice' are also classifiable under heading 9504.90 as they are similar to ‘Scrabble original' – ROM application fetches ‘unpleasant' results at the hands of the Tribunal. Tribunal's orders on ROM application filed in the matter of Tribunal order in Pleasantime Products [ 2008-TIOL-552-CESTAT -Mum ]. Classification of 'Scrabble Junior' and 'Scrabble Dice' were not determined while passing the earlier order. Scrabble Junior' which is meant for children is also a word game which is similar to the conventional 'Scrabble Original' but with an added printed word side to the board. Therefore, 'Scrabble Junior' is also classifiable like 'Scrabble Original' under CET sub-heading 9504.90. 'Scrabble Dice' is also a word game similar to the conventional 'Scrabble Original' but with an added dice section, and, therefore, falls for classification under CET sub-heading 9504.90. Applicants are seeking to have the classification issue reviewed in guise of rectification application which is not permissible as the Tribunal admittedly has no power to review its own order. Assessees were guilty of suppression in not disclosing the basic information, namely, viz. name of the game manufactured by them i.e., Scrabble hence plea of bonafide belief not available. No penalty under Section 11AC can be imposed for the period prior to 28.09.1996; applicants are liable to penalty equal to the duty payable for the period subsequent to 28/09/1996 up to January, 2001 and this amount is required to be re-computed. As regards the submission that the value of the goods has to be considered as cum-duty price and the duty liability, since no such submission was raised during the course of hearing and hence no error arises in not recording a finding on a plea not raised before the Bench. ROM disposed of accordingly.


2009-TIOL-711-CESTAT-MAD

M/s EID Parry India Ltd Vs CCE, Trichy (Dated: February 13, 2009)

Central Excise – CENVAT – Capital goods - Captive power plant – denial of credit on the ground that the power plant is immovable property and is not excisable - Credit admissible in respect of goods used to set up captive power plant which in turn is used to generate electricity which in turn goes to manufacture of sugar, dutiable final product. ( Para 2)


M/s Chennai Petroleum Corporation Ltd Vs CCE, Trichy (Dated: March 25, 2009)

Central Excise – Valuation – Related buyer – Interconnected undertaking – In terms of Rule 10(a) of the Valuation Rules, when the excisable goods are not sold except through an interconnected undertaking, the value should be determined as per Rule 9 of the Valuation Rules. As per this rule, the assessable value shall be the price charged by the related person when the excisable goods are arranged to be sold through a related person. The appellants have followed the above provisions and paid duty on clearances of HSD during the material period correctly. There is no legal sanction to demand duty from the appellant in cases where the price charged on related buyer is higher than the corresponding sale price of related buyer. (Para 2)


Pepsico India Holdings Pvt Ltd Vs CCE, Mumbai-II (Dated: March 13, 2009)

Lower authorities ought to have made a sincere and an independent attempt to get at the real nature of case rather than follow the dictates of the range officer – Tribunal orders remand.



Standard Alkali Vs CCE, Belapur (Dated: January 27, 2009)

Section 4 of CEA, 1944 – Inclusion in Assessable Value - Appellants showing transportation charges separately in their invoices and in some cases charging higher amounts towards transportation than that was charged by transporters – balance of convenience in favour of appellant in view of SC decision in Baroda Electric Meters Ltd. [ 2002-TIOL-96-SC-CX ]


M/s Windoors (India) Vs CCE, Mumbai-II (Dated: February 4, 2009)

Main noticee having settled their case before the Settlement Commission and being granted immunity from fine, penalty and prosecution, co-noticees cannot be vested with any higher penal consequences – Tribunal decision in S.K.Colombowala [ 2007-TIOL-1130-CESTAT-Mum ] relied upon.


CCE, Chandigarh Vs M/s Raja Forgings & Gears Ltd (Dated: February 18, 2009) Central Excise – Classification of gears, shafts which are parts of Harvester Combine held as classifiable under sub heading 8483.90 whereas Revenue sought classification under 8433.00 in their appeal though original authority classified them under 8483.90 – Application for ROM by assessee on the ground that new Tariff itself classified parts of Harvester Combine under 843300 and that Revenue cannot take two contradictory stand – Held, remedy of appeal, review are creature of statute and ROM being empowered under s. 35(2) cannot be on a higher pedestal – Tribunal's power of review cannot be used a tool by disgruntled assessees to prolong proceedings – Power of ROM to be exercised with due care and circumscription


Rollwell Conveyor Components Pvt Ltd Vs CC & CCE, Gantur (Dated: December 29, 2009)

Central Excise – Non-accountal of raw materials/finished goods liable for confiscation and penal action – In view of prevailing circumstances, redemption fine and penalties reduced – Equivalent penalty set aside


M/s Liberty Shoes Ltd Vs CCE, Delhi-III (Dated: March 20, 2009)

Central Excise – Input credit cannot be varied at manufacturer's end on the ground that supplier paid excise duty in excess – Full waiver of pre-deposit and stay granted


M/s EMA India Ltd Vs CCE, Kanpur (Dated: January 21, 2009)

Central Excise - Cenvat credit - shortage of inputs - credit debited and mistake admitted by writing a letter to Asst Commissioner - later the assessee finds there was not shortage of inputs and take the credit again - held, since the credit was availed again without intimating the Revenue and no refund claim was filed, assessee directed to deposit back the credit availed - penalty waived off and stay granted


M/s AVC Engg Co (P) Ltd & Others Vs CCE, Noida (Dated: November 17, 2008)

Central Excise - Brand name and small scale exemption - matter remanded to examine the matter in depth in respect of all the appellants by proper analysis of entire evidence granting reasonable opportunity of hearing to the appellants and come to the conclusion whether there was any brand name and whether such brand name was used by the appellants.


M/s Jai Hanuman Dyeing & Printing Mills Pvt Ltd Vs CCE, Surat (Dated: March 23, 2009)

Central Excise – No discretion vested in authorities to reduce penalty under s. 11AC – Apex Court decision in Dharmendra Textile Processors [ 2008-TIOL-192-SC-CX-LB ] followed – No merits in assessees appeal to reduce penalty – Re-determination of AV by Commissioner (A) confirmed as Revenue has not proposed any alternative mechanism to be adopted for determining AV


CCE, Madurai Vs Shri N Manikandan (Dated: March 3, 2009)

Central Excise – SSI Exemption – Value of clearances – Burden of Proof – Clandestine manufacture and clearances has to be established with proper evidence such as consumption of raw material, consumption of power, production capacity etc. In the instant case, respondent has established with reliable documents showing capacity of production and figures of consumption of power that the clandestine clearances found to have been made by it were not possible. Moreover, the original authority has not considered the submission by the respondent as regards the clearances under dummy invoices to several customers. The department could have verified the veracity of the claim by respondents as regards the inflated particulars of clearance under dummy invoices. Department has failed to establish clandestine clearances and hence appeal dismissed. (Para 5)

SSI Exemption – Dummy Units – Show cause notice – Co-noticee - The non issuance of Show Cause Notice to the dummy unit vitiated the entire proceedings. The respondent or its partners were not issued Show Cause Notice to explain as to why

clearances attributed to it should not be clubbed with those of main unit. Proceedings void. (Para 6)


CCE, Pune-I Vs M/s Siddesh Engineers (Dated: January 13, 2009)

Appellant supplied raw materials and the goods manufactured by a job worker were sold by respondents to Kirloskar Oil Engine Ltd. under their own invoices – sale value included in respondents turnover for computing the SSI exemption under notification 1/93-CE - Since job worker has manufactured the excisable goods, the liability to pay duty is of the job worker – Tribunal decision in Sree Rayalaseema Dutch Kassenbouw Ltd is distinguishable as in the present case the goods were sent under notification 214/86-CE – Revenue appeal dismissed.


Raptakos Brett Co Ltd Vs CCE, Raigad (Dated: February 16, 2009)

Physician samples distributed free of cost to be valued on basis of proportionate cost of regular packs of medicine and not on basis of cost data – since issue was not free from doubt during relevant period, no malafide can be attributed and hence penalty not imposable – LB decision in Blue Cross Laboratories [ 2006-TIOL-1142-CESTAT -Mum-LB ] relied upon - Tribunal.


CCE, Lucknow Vs M/s Oswal Chemical & Fertilizers Ltd (Dated: February 24, 2009)

Central Excise - refund of duty paid on Raw Naphta used in the manufacture of Fertilisers - the respondent paid full duty under protest by way of filing appeal before Commissioner (Appeals) - So, the duty paid by the respondents would come within the purview of second proviso to Section 11B(1) of the Act. - The limitation of 6 months shall not apply as the duty was paid by the respondents under protest. The contention of the revenue that refund claim is barred by limitation is not sustainable.

Unjust enrichment - it is seen from Adjudication Order that the respondent submitted certificate of Fertilizer Industry Corporation Committee and chartered Accountant Certificate to prove that the burden of incidence of duty has not been passed to any other person - refund not hit by unjust enrichment.


M/s Vinny Overseas Pvt Ltd Vs CCE, Ahmedabad (Dated: March 25, 2009)

Valuation of goods manufactured on job work basis has to be based on the decision of the Apex Court in Ujagar Prints ( 2002-TIOL-03-SC-CX ) only. Appellants claim that the buyer is a related person and therefore the price charged by him should be taken into account for the purpose of Section 4 of Central Excise Act, 1944 – this claim is being made so that they can avail deemed credit which has nothing to do with the cost of raw materials - Valuation – S. 4 of the CEA, 1944 - merely because two units are considered as interconnected undertakings, they do not become related persons and for the purpose of valuation, the mutuality of interest and direct or indirect interest in the business of each other is essential – Appeal rejected.


CCE, Thrissur Vs M/s Apollo Tyres Ltd, Chalakkudy (Dated: December 3, 2008)

Central Excise – Dutiability of waste polythene films – Polythene films used for wrapping of inputs and intermediate used in the course of manufacture of final products – No ground to suggest waste arising in the course of manufacture of final products – Waste thereof not liable to duty – No merits in Revenue appeal


CCE,Thane-II Vs Conwood Pre-Fab Pvt Ltd (Dated: March 5, 2009)

Paver blocks classified under SH 6810 11 90 and benefit of exemption claimed under notification 10/2006-CE, Sr.no.23 as ‘hollow building blocks, including aerated or cellular light weight concrete blocks and slabs' – Revenue contends goods are correctly classifiable as ‘solid concrete blocks other than building blocks' under SH 6810 99 90 and denying benefit of Notification 10/2006-CE – Commissioner(A) allowing appeal of assessee – Revenue appeals before Tribunal.

Tribunal's observations - One has got to ascertain as to how 'building blocks' are understood in the common parlance. According to the assessees, the common people understand these goods to be blocks used for building activity. On the contrary, it is the argument of the appellant that 'building blocks' are blocks used in a building as vertical structure. This view of the Revenue reverberated in Court by the learned JCDR does not appear to be in keeping with how the common populace understand similar expressions such as building materials, sewing machine, cooking gas, cutting board, drinking water and the like. It cannot be in dispute that a sewing machine is a machine used for sewing, that cooking gas is a gas used for cooking, that cutting board is a board used for cutting, that drinking water is water used for drinking. Building materials (cement, bricks, steel wires etc.) ere materials used for building structures. These structures, in our view, need not be vertical structures only. They can be multidimensional - some may be vertical like the buildings visualized by JCDR, some be horizontal like footpaths, courtyards of buildings etc. some can even be subterraneous like water tanks etc. Materials used for constructing all these structures are known as building materials in common parlance. When the common man understands a sewing machine to be a machine used for sewing, cooking gas to be a gas used for cooking, cutting board to be a board used for cutting, it would be rather unconventional to hold that he does not count building blocks / bricks as materials

used for building structures.

We hold that the paver blocks in question, used for paving roads, footpaths, parking areas, and other open spaces like courtyards of buildings, is classifiable as 'building blocks' under SH 6810 11 90, which entry is specific enough to cover 'building blocks'. There is no question of classifying paver blocks under the residuary entry (SH 6810 99 90) suggested by the Revenue.

Held - Assessees are entitled to the benefit of concessional rate of duty under the relevant Notification 10/2006-CE as rightly held by the lower appellate authority. Revenue appeals are dismissed.


Aarti Steel Industries Vs CCE, Nashik (Dated: December 29, 2008)

No penalty can be imposed on a firm in terms of Rule 26 of the CER, 2002 - it can only be imposed on an individual - Penalty set aside.


M/s Subham Polymers Ltd Vs CCE, Nagpur (Dated: March 17, 2009)

If penalty is imposed under section 11AC of the CEA, 1944, further imposition of equivalent penalty under rule 173Q of CER, 1944/rule 25 of CER, 2002 is not warranted – Tribunal.

Tribunal decision in Industrial Adhesive Enterprise vs. CCEx., Mumbai-V [ 2007-TIOL-1900-CESTAT -MUM ] referred.

Penalties under rule 173Q where no duty is involved – leniency warranted – quantum halved - Appeals partly allowed.



CCE, Coimbatore Vs M/s Rallis (I) Ltd (Dated: January 23, 2009)

Central Excise – refund - the respondents had paid the impugned amount of duty not due at the instance of the department on a date subsequent to clearance of the goods – the order of Commissioner (Appeals) holding that the refund is not hit by unjust enrichment does not call for interference.


M/s Hindustan Unilever Ltd Vs CCE, Pondicherry (Dated: March 11, 2009)

Central Excise – Valuation – MRP – Section 4A – Stay /Dispensation of pre -deposit – In the instant case the goods involved are not sold. So the applicability of Section 4A for assessment of the impugned goods is ruled out. Stay granted. (Para 3)


CCE, Indore Vs M/s Phiroze Sethna Pvt Ltd (Dated: February 12, 2009)

Central Excise – Benefit of SSI exemption not deniable when assessee declared functioning of three units to different jurisdictional offices – Revenues contention that assessee deliberately not declared information to all offices not acceptable when they failed to investigate the facts – Allegation of suppression not sustainable – No reason to interfere with impugned order


M/s Arti Electrodes Pvt Ltd Vs CCE, Meerut-I (Dated: February 25, 2009)

Central Excise – Goods manufactured and cleared without excise registration and clearances at high value through trading firm without adequate evidence – Duty demand, confiscation and penalty upheld – First SCN issued for confiscation of seized goods and second SCN issued for demand of duty – No infirmity in invoking extended period, Apex Court decision in Nizam Sugar Factory case distinguished – Trading firm not being an assessee, penalty set aside – Penalty on PoA of trading firm set aside


CCE, Pune-II Vs M/s National Dyeing & Bleaching Works(Dated: January 23, 2009)

Provisions regarding the determination of the annual production capacity have been held to be ultra vires section 3A of the CEA, 1944 by Madras High Court in case of Beauty Dyers [ 2003-TIOL-190-HC-Mad-CX ] and there is nothing on record to show that the said judgment has been stayed or modified or set aside – Penalty is not imposable under rule 96ZQ of CER, 1944 – Revenue appeal dismissed.


Shankarrao Mohite SSG Ltd Vs CCE, Pune (Dated: January 12, 2009)

Notfn 47/94-CE(NT) – Benefit cannot be denied on the ground that the DTA clearances by a 100% EOU are governed by Chapter VA provisions in view of Tribunal decision in Kurt O' John Shoe Components [ 2003-TIOL-CESTAT -103-Del ] and Renuga Soft-X Towels [ 2007-TIOL-1554-CESTAT -Mad ].


M/s Nirma Ltd Vs CCE, Ahmedabad-II (Dated: February 25, 2009)

Central Excise - CENVAT Credit - demand of 10% amount on exempted goods - either separate records have been maintained in respect of some of the inputs or wherever credit has been taken, the same was reve rsed - demand of 10% amount not sustainable.


M/s Trans Global Agencies Pvt Ltd Vs CCE, Daman (Dated: March 17, 2009)

Central Excise – Order to be first served by RPAD and only thereafter to be served by affixation in terms of s. 37 C (b) – Matter remanded to Appellate Commissioner to ascertain the facts and decide the case


CCE, Chennai Vs Sundaram Fasteners Ltd (Dated: February 18, 2009)

Central Excise – removal of inputs or capital goods as such - the facility extended to manufactures of excisable goods to discharge their duty liability on final products removed on the 5 th of the succeeding month was available also in respect of inputs and capital goods removed ‘as such'.


M/s Uniworth Textiles Ltd Vs CCE, Nagpur (Dated: March 24, 2009)

Central Excise - Clearances by EOUs in DTA in the guise of rejects - rejection of transaction value upheld - value to be determined under Rule 7 of the Customs valuation rules, 1988 - Departmenta l Circulars contrary to statutory provisions are not binding - Second show cause notice issued by invoking larger period is not barred by limitation



M/s Hindalco Industries Ltd Vs CCE, Vapi (Dated: October 16, 2008)

Disposable Aluminium foil container is correctly classifiable under heading 76.15 as ‘articles for table use' and is entitled to benefit of exemption notification 10/2006-CE – Tribunal.


Product in question is prepared from aluminum foil of a sufficient thickness manufactured after die pressing the foil into a shape of cubeoid box open from top into which the lid is placed after packing the required food items in it. Such types of articles are generally used for packing of food items to be served in railways, aero plane, out-door picnics - what is manufactured is not a conventional casserole as a lay man understands the same.

Since the tariff is aligned with HSN, it has to be accepted that the recommendations of Harmonised System Committee being of a great persuasive value and have to be considered for the purpose of determination of classification.

Judgment of foreign Court has to be considered where the basis is same as held by the Apex Court in the case of Godhra Borough Municipality vs. Godhra Electricity Co. Ltd. reported in AIR 1968 SC 1504.

Explanatory note given under the Chapter 73 to cover the table-ware and kitchen ware have to be considered and, therefore, the product manufactured by the appellant is correctly classifiable under heading 76.15 as claimed by the appellant. It is also not disputed that primary use of the product manufactured by the appellant with lid is for serving meals on the table. Further, it also cannot be said that a primary purpose in such cases is packing and not serving meals.

Anything used for packing does not get covered by Heading 76.12 as a container. Another point that goes in favour of the appellant is that the container under Heading No.76.12 are mainly to be used as a container whereas as already mentioned main end use of the appellant product is for serving food in Railways/Air-crafts. Therefore, on merit, the classification claimed by the appellant under heading 76.15 has to be upheld.

Limitation : In view of the fact that department had been informed of the manufacturing process, claiming exemption and classification declaration were filed and also there was a dispute regarding CENVAT credit on the very same goods, which was adjudicated and there is an order of the Commissioner (Appeals) dt.24.3.05 on this issue, extended period cannot be invoked and penalty is not leviable.



M/s Track Pack (India) Ltd Vs CCE, Noida (Dated: February 16, 2009)

Central Excise - classification - self adhesive Hologram Sticker / Sheets and Holographic film is classifiable under heading No 3919.00 - demand under extended period is not maintainable.


M/s Chennai Petroleum Corpn Ltd Vs CCE, (LTU), Chennai (Dated: March 11, 2009)

Central Excise – Notification – Captive Consumption – Exemption for captively consumed goods is available under Notification 67/95 if cenvat credit attributable to inputs in the exempted products is reversed or paid. Dispute is no longer res integra. It appears the precedent decisions were not cited before the adjudicating authority. Matter remanded for fresh decision. (Para 3)


CCE, BelapurVs M/s Westman Chemicals Pvt Ltd (Dated: January 06, 2009)

Loss of goods - Application for remission of duty allowed and demand set aside by Commissioner(A) – Appeal filed by revenue is not maintainable in view of the first proviso to section 35B of the CEA'44. Loss of goods - Application for remission of duty allowed and demand set aside by Commissioner(A) – Appeal filed by revenue is not maintainable in view of the first proviso to section 35B of the CEA'44.


CCE, Lucknow Vs M/s U P Asbestos Ltd (Dated: February 4, 2009)

Central Excise - reversal of credit is on inputs lying in stock on the end product becoming exempted - In view of the Larger Bench decision in case of M/s HMT, no merit in revenue appeal.


CCE, Belapur Vs M/s Deepak Fertilizers & Petro Corporation Ltd (Dated: March 20, 2009)

Release of ammonia into the atmosphere by flare system or otherwise does not amount to ‘removal' in terms of rule 9(1) of the CER, 1944 – Board Circular no.246/80/96-CX dated 01.10.1996 clarifying that such gases are not liable to duty

relied upon – Revenue appeal devoid of merits and not maintainable - Tribunal.

Apex Court decision in Vazir Sultan Tobacco [ 2002-TIOL-215-SC-CX ] is not apt as the issue of venting out of gases in the atmosphere was not subject matter of decision.

Revenue's contention that it is doubtful whether the ammonia gas in question was, in fact, vented out or not, as ammonia in vapour form cannot be flared by ignition is an altogether new plea which was not the subject matter of the SCN and in appeal Revenue cannot traverse beyond SCN.

No evidence brought on record by Revenue that Ammonia was clandestinely removed by respondents from factory – Commissioner(A)'s order upheld.


Shwarde Pharmaceuticals Pvt Ltd Vs CCE, Mumbai-II (Dated: January 27, 2009)

Goods actually sold by assessee to other manufacturing units under the latter's brand name – sale is on principal to principal basis and would not attract Board Circular 813 dated 25.04.2005 or the Bombay High Court decision [ 2006-TIOL-292-HC-Mum-CX ] – Pre -deposit ordered and stay granted.

Pharmaceutica l products cleared to large scale manufacturing units under the latter's brand name in terms of s.4(1)(a) of the CEA, 1944 – lower authorities holding that these goods were to be distributed ultimately as physician samples and hence are to be valued in terms of Rule 4 of Valuation Rules r/w s.4(1)(b) – Sale is on principal to principal basis and hence Board Circular 813 dated 25.4.2005 and Bombay HC decision [ 2006-TIOL-292-HC-Mum-CX ] is not attracted – pre -deposit waived and stay granted.


CCE, Delhi – III Vs M/s Usha Amorphous Metals Ltd (Dated: February 5, 2009)

Central Excise - computation of duty on goods cleared by EOU in DTA under Notification No 2/95 CE - duty has to be computed by giving exemption of 50% from each of the duties of Customs - not at the rate of 50% of the aggregate duties of customs - no infirmity in the order of Commissioner (Appeals).


M/s Mercury Abtibiotics Pvt Ltd And Others Vs CCE, Vadodara (Dated: March 19, 2009)

Central Excise – valuation – related person - for mutuality of interest, there has to be holding of shares of each other between two companies: First question is as to whether the corporate veil should be lifted in this case. The

Commissioner has held that since all the shares are held by the families and relatives in one company and the same group holds almost 70% of the shares in other company, they have to be treated as related persons. However what is to be seen is whether this aspect has influenced the price or not and whether there is mutuality of interest. It is not denied that the companies do not have shares in each other. It is also not denied that there are 965 share holders in MLL out of which the majority of them do not belong to family or their relatives. Tribunal in case of M/s Utkal Alloy (P) Ltd - 2005-TIOL-932-CESTAT-KOL has held that for mutuality of interest, there has to be holding of shares of each other between two companies. This factor does not exist in this case.

Common accountant and common Excise manager will not make them related As regards having a common accountant and common Excise manager, in the absence of any evidence of flow back, manipulation of price, manipulation of accounts etc. , these factors do not affect the overall conclusion.



M/s Banner Pharma Caps Pvt Ltd Vs CCE, Vapi (Dated: March 19, 2009)

Modvat - Taking duty credit after six months from the date of issue of Bill of Entry – Tribunal allows appeal Beta Carotene, Vitamin A etc. imported for using the same in the manufacture of medicaments - goods had already been received and entry was made in RG-23A Register, Part-I but because of delay in receipt of copies of bill of entry duly endorsed by the appraiser of the customs, there was delay in taking credit - Inasmuch as the Larger Bench in the MRP Limited case ( 2007-TIOL-91-CESTAT-BANG-LB ) was not concerned with the issue where the inputs were received within a period of 6 months and proper documents were yet to be received hence it could not be said that Larger Bench decision covers the disputed issue Modvat benefit is to be allowed to the appellant, especially when there is no dispute about the duty paid character of the inputs, their receipt in the appellants' factory and utilization in the manufacture of the final product. The provisions debarring taking of credit after the period of 6 months from the date of issuance of duty paying documents were introduced with intent to avoid misuse of the same, where inputs are obtained after a period of 6 months from the clearance from the factory of the manufacturer or from the premises of the dealer etc. Inasmuch as in the present case admittedly goods were received within a period of 6 months and entries were duly made in their RG 23A part-1, it was only a question of making suitable entries in part-II register of RG-23A format.



CCE, Chennai Vs M/s Sundram Fasteners Ltd (Dated: February 17, 2009)

Central Excise – removal of inputs or capital goods as such - the facility extended to manufactures of excisable goods to discharge their duty liability on final products removed on the 5 th of the succeeding month was available also in respect of inputs and capital goods removed ‘as such'.


M/s S V Sugar Mills Ltd Vs CCE, Chennai - III (Dated: February 13, 2009)

Central Excise – valuation – related person – mutuality of interest - issue of 0% interest fully convertible debentures by the holding company to subsidiary company - fully convertible debentures cannot be held to be interest free loan extended – In the absence of allegation of mutuality of interest on any other ground, the sale price adopted by the appellant is acceptable – demand set aside.


M/s CT Cotton Yarn Ltd & Ors Vs CCE, Indore (Dated: November 11, 2008)

Central Excise – Clandestine removal of finished goods by 100% EOU – Since assessee does not dispute the evidences, duty demand of Rs. 8.6 crores confirmed – Limited issue of double taxation and plea on levy of excess penalty being a sick unit remanded to original authority for fresh consideration


Moon Beverages Ltd Vs CCE, Ghaziabad (Dated: February 19, 2009)

Central Excise – Receipt of crates from principal as compensation in lieu of reduction in MRP of final products – No express provision in CENVAT Credit Rules to disclose receipt of inputs/packing materials on loan basis or ownership basis – Costing of finished goods not relevant when assessed under s. 4A – Extended period invoked on a different ground from that proposed in the SCN – Prima facie case in favourof assessees – Pre-deposit waived and stay granted till disposal of appeal


CCE, Nagpur Vs M/s Manikgarh Cement (Dated: January 16, 2009)

Cenvat Credit on input services viz. repairs and maintenance, civil construction, manpower requirement, cleaning services etc. provided for residential colony – On an identical issue for an earlier period, Tribunal in assessees own case [ 2008-TIOL-133-CESTAT -Mum ] and [ 2008-TIOL-1580-CESTAT-Mum ] has allowed the credit holding that the impugned services are related to business – following judicial discipline,

credit allowed – Revenue appeal rejected.


M/s Krishna Filaments Ltd Vs CCE, Mumbai-IV (Dated: February 2, 2009)

DTA clearances effected under para 9.9 (b) of the EXIM Policy would ipso facto attract the concession under notification 2/95-CE – Apex Court decision in Virlon Textile Mills Ltd. [ 2007-TIOL-69-SC-CX ] relied upon – Matter remanded for re -quantification of duty subject to fulfillment of mandatory conditions of the notif ication.


M/s Jayshree Chemicals Ltd Vs CCE, BBSR-I (Dated: September 16, 2008)

Central Excise – Toxic sniff gas arising during process of filling liquid chlorine in cylinders is unavoidable process loss, not marketable – No duty liability arises in terms of Board Circular No.2/88-CE dated 21.3.1988 – Remission of duty allowed


CCE, Vadodara-II Vs M/s Gujarat Fluorochemicals Ltd (Dated: March 16, 2009)

Freight and transportation charges collected by the respondent from their customers for the return of the empty cylinders from the customers' premises to the respondent's factory are not required to be added in the assessable value of the excisable goods being manufactured by the respondent - Tribunal decision in M/s. Hadrian Petrochemicals Ltd. 2009-TIOL-360-CESTAT-KOL relied upon – Revenue appeal rejected.

2009-TIOL-603-CESTAT -MUM-LB

Abbott India Ltd Vs CCE, Goa (Dated: February 24, 2009)

Prior to 31.03.2005 addition of vitamins in a product will take it out of purview of Chapter 04 – Pediagro proprietary Milk food is correctly classifiable under 1901 as held by Revenue – Larger Bench of Tribunal. Larger Bench observations - During the relevant period viz. prior to 31.03.2005, Chapter 04 of the Central Excise Tariff Act, 1985 and HSN Chapter 04 were not aligned completely and it was only from 01.04.2005 that Chapter 04 of CETA, 1985 was aligned with HSN.

We find that Central Excise Tariff Act, 1985 was enacted to do away with the anomalies that arose due to the classification dispute and is undoubtedly based on the HSN. The Central Excise Tariff Act, 1985, in Chapter 04 and notes of Chapte r borrowed several features from HSN to suit the requirements of our country. It can be seen that during the relevant period Chapter Note 4 of Chapter 4 consciously left out the 'vitamins' as one of the permissible ingredients while deciding the classification of a product under said Chapter No.4. So far as the applicability of the Explanatory Notes of HSN is concerned, the position is clear that these are, at best, only of persuasive value and are not part of the tariff and are not of binding nature. It would not, therefore, be correct to start with the presumption that the additives mentioned in the General Explanatory Notes of Chapter 4 are permissible additives for purposes of tariff classification under the Central Excise Tariff. Such additives find specific mention in Note (4) and these are sugar or other sweetening matter, flavours, added fruit or cocoa. There is no mention of vitamins in Note (4) and, therefore, we agree with the contention of the learned SDR that, on the ground of addition of vitamins alone to the product, it goes out of Chapter 4. Since the Apex Court has already settled an identical issue in dispute, to our mind nothing remains in the matter. Supreme Court in the case of Camlin Ltd., Vs. C.C.E., Mumbai (2008-TIOL-165-SC-CX), has held that it is settled law that when entries in the HSN and the Tariff are not aligned, reliance cannot be placed upon HSN for the purpose of classification of goods under the said Tariff. Reference answered by the Larger Bench as under:- "Prior to 31.03.2005 addition of vitamins in a product will take it out of purview of chapter 04."



CCE, Pune II Vs M/s Kirloskar Copeland Ltd (Dated: March 16, 2009)

Empty drums/barrels pertaining to Cenvatted inputs removed from factory – no duty payable and no cenvat to be reversed – SC decision in West Coast Industrial Gases [ 2003-TIOL-03-SC-CX ] relied upon – Board Circular 721/37/2003-CX dated 6.6.2003 referred – Revenue appeal dismissed.


CCE, Raipur Vs M/s Bharat Aluminium Co Ltd (Dated: January 23, 2009)

Central Excise - M.S. Rounds and pig Iron used for repair and maintenance of plant and machinery eligible for CENVAT credit – Impugned order upheld – No merits in Revenue appeal


Jays Engineering (India) Ltd Vs CCE, Mumbai-III (Dated: March 4, 2009)

Procedure under rule 233B of CER, 1944 is only directory and not mandatory – Refund not time barred – Appeal allowed by way of remand.

Defective barrels cleared at lower value – Preventive team insisted that duty should have been paid on the higher value as applicable for fresh or first quality drums - Appellants paid differential duty as demanded by Preventive Department and informed Assistant Commissioner that the same is paid under pro test – Procedure under rule 233B of CER, 1944 is only directory and not mandatory – Refund not time barred – Appeal allowed by way of remand.


CCE, Pondicherry Vs G Jijith Kumar (Dated: February 11, 2009)

Central Excise – refund – limitation – refund claims under Notification 32/2005 CE cannot be denied on the ground that the claims were filed beyond sixty days prescribed under the Notification if they were filed within the time limit prescribed in Section 11B of the Act - By enforcing the subject limitation of sixty days to claim refund, the policy of the government will be defeated - Notification was introduced to effectuate the Government's policy. The authorities are expected to take implemental action which subserves the policy and object of the notification.



CCE, Mumbai Vs Midas Techniques Pvt Ltd (Dated : March 2, 2009)

Gold plating on Imitation jewellery does not amount to manufacture



M/s Alembic Ltd Vs CCE & CC, Vadodara-I (Dated : March 23, 2009)

Sharko Ferrol is correctly classifiable under SH 1901.10 as Malt Extract and not under SH 3003.10 as Medicament - Tribunal decision in Coral Laboratories [ 2008-TIOL-529-CESTAT -AHM ] involving identical product and identical dispute relied upon. Merely because the appellants claimed classification under Chapter 30 instead of under Chapter 19 is no ground by itself to hold that the appellants were guilty of suppression or mis-statement - Extended period not invocable - Demand barred by limitation. Demand within the limitation period to be worked out after giving the benefit of cum -duty price


M/s Trent Ltd Vs CCE, Vapi (Dated: December 17, 2008)

Central Excise – Manufacture of talcum powder by contract manufacturer – When there is ample evidence to suggest that goods are manufactured by the contract manufacturer employing his factory machinery, labour etc, principal cannot be held liable for excise duty – Demand of duty and imposition of penalty/personal penalties set aside


CCE, Mumbai Vs M/s Pleasantime Products (Dated: February 13, 2009)

‘Scrabble' story continues - Revenue's ROM application against Miscellaneous order passed on ROM application of assessee dismissed by Tribunal.

Larger Bench Tribunal decision in the case of Berger Paints India Ltd. vs. Collector of Customs [ 2002-TIOL-300-CESTAT -Del-SB ] and decision in CCE, Belapur vs. Kellog India Pvt. Ltd. [ 2008-TIOL-128-CESTAT -MUM ] relied upon.



M/s International Transmission Product Pvt Ltd Vs CCE, Mumbai-III (Dated: January 9, 2009)

Duty paid through Supplementary invoices on enhancement of price with retrospective effect – recovery of interest thereon - as matter has been referred to Larger Bench of

five Members, matter not free from doubt and hence stay is warranted – Pre-deposit of interest waived and recovery stayed.

Documents

CESTAT RULING - Taxindiaonline.com · M/s Genus Electrotech Ltd Vs CCE, Rajkot (Dated: March 18, 2009) Central Excise – Assessee cannot be compelled to avail balance CENVAT credit