CESTAT RULING Shriram Wire Pvt Ltd Vs CCE (D ated ...€¦ · Devi Iron And Power Ltd Vs CCE ( Dated: September 29, 2016) CX - Appellant engaged in the manufacture of sponge iron

CESTAT RULING

2016-TIOL-3372-CESTAT-MUM

Shriram Wire Pvt Ltd Vs CCE (Dated: December 19, 2016)

CX - CENVAT - appellant procuring MS wire from the market for altering guage beforeclearance along with wire manufactured from Wire rods - due to logistical issuesappellant could not maintain separate records and, therefore, paying @8% of value ofsuch MS wire in terms of rule 6 of CCR - department disagreeing and directingappellant to pay the difference between CENVAT credit taken on bought out 'MS wire'and the 8% paid by them on 'MS wire' made out of duty-paid 'MS wire' - demandconfirmed, penalty imposed, hence appeal filed in CESTAT. Held: Doubtlessly, drawalof thinner gauge products from 'MS wires' is not 'manufacture' and, in any case, theend product is not leviable to duty - Subsequent adoption of the qualifying expression'excisable' in rule 2(d) of CENVAT Credit Rules, 2004 does not imply that, under theerstwhile Rules, exempt goods included non-excisable goods - However, there was nointention to evade duty in adopting the facility of payment of tax of 8% - nosuppression on the part of appellant, hence demand is barred by limitation: CESTAT[para 6 to 10]

Story

2016-TIOL-3371-CESTAT-DEL

CCE & C Vs Cosmos Ispat Pvt Ltd (Dated: November 29, 2016)

CX - Assessee availed CENVAT credit on MS angle, flat etc. and later cleared the sameas such on payment of duty - Revenue view is that credit is not admissible on suchgoods as the assessee is already engaged in the manufacture of similar products –Commissioner(A) set aside order of confirmation of demand, therefore, Revenue inappeal.

Held: It is a fact that the entire cenvat credit availed by the assessee already standsreversed at the time of clearance of the goods as such - In such Revenue neutralscenario, Bench finds no reason to interfere with the impugned order – Revenue appealdismissed: CESTAT [para 4]


Devi Iron And Power Ltd Vs CCE ( Dated: September 29, 2016)

CX - Appellant engaged in the manufacture of sponge iron and during audit it wasnoted that the appellant had manufactured and cleared fly ash bricks without paymentof duty during the period 2005-06 to 2007-08 - CE duty demand of Rs.52.24 lakhsconfirmed and equal penalty imposed - appeal to CESTAT. Held: During the process ofmanufacture, ash particles are generated which were collected in electrostaticprecipitator and later used in the manufacture of bricks - various sales invoices of theimpugned goods clearly mention them as 'fly ash bricks' - since these facts have notbeen disputed, there is no reason to interfere with the findings of the original authorityregarding the excise duty liability on fly ash bricks - inspite of being engaged in themanufacture of fly ash bricks and marketing the same in the said name, the appellantsdid not file any return for the said product, hence extended period rightly invoked - asregards seeking concessional rate of duty in terms of notification 5/2009-CE,conditions mentioned therein have not been satisfied and the appellant had notmaintained any records or filed returns, therefore, at this stage there is no reason tointerfere with the findings of the AA denying the benefit claimed - Appeal rejected:CESTAT [para 3, 4]


RD Plast Vs CCE ( Dated: October 28, 2016)

CX - Manufacture - section 2(f) of CEA, 1944 - Allegation of Revenue is that thealuminium channels purchased by the appellants are put to various processes likecutting, drilling and bending and wherever required powder coating (got done on jobwork basis), and thereafter alongwith other bought out accessories such as hooks,clamps, curtains etc. supplied to the customers and that this activity is manufactureunder CEA, 1944 - appeal to CESTAT. Held: In the present case, there is no clearfinding regarding what type of structures are emerging with categorical evidence -Bench is unable to agree with the findings of the Original Authority that a new anddifferent article having distinct name, character or use has emerged - order is set asidefor fresh consideration: CESTAT [para 4]

CX - Addition of trading activity for computing the turnover to arrive at SSI exemption- Case of the Department is entirely based on the allegation that the suppliers do nothave manufacturing facility of wall mounted brackets and hence it is presumed thattrading activity is not bonafide - denial of cross-examination - statements have beenrelied upon and when the appellant wants to verify the truth of the statements, thennecessarily the procedure as stated out under Section 9D of the Act has to be followed- matter remanded: CESTAT [para 5]

2016-TIOL-3366-CESTAT-ALL

P And J Aromatics Vs CCE (Dated: October 26, 2016)

CX - Clandestine removal - Railway Authorities have provided general information inrespect of entire Gutkha booked at Agra Railway Station and it does not indicate thatsaid goods were manufactured by appellant and cleared without payment of CE duty -witnesses who were dealing with goods in M/s BFC have categorically stated duringtheir cross-examination that Gutkha was never booked in the guise of Pashu Ahaar -Raw materials cannot be confiscated under Rule 25 of Central Excise Rules, 2002 -demand of Rs.13 crores set aside: CESTAT [para 10]

Also see analysis of the order


Uniword Telecom Ltd Vs CCE (Dated: March 28, 2016)

CX - If the amount is still lying outstanding and or receivable in the books of accounts,in that case, it cannot be said that the appellant have received the amount from itsbuyers, attracting the provisions of unjust enrichment - matter remanded to theAdjudicating Authority with direction to call for and examine the Ledger and Books ofAccounts, including the Balance Sheets, along with Certificate from CharteredAccountant: CESTAT [para 4, 5]


Ultratech Cement Ltd Vs CCE & ST (Dated: November 15, 2016)

CX - Cenvat credit on certain steel items used in fabrication of plant and machineryand Cenvat credit on welding electrodes been used in repair and maintenance of plantand machinery has been denied by lower authorities on the ground that the same areneither inputs nor capital goods - appeal to CESTAT. Held: Relying on Tribunaldecision in Singhal Enterprises Pvt. Ltd. - 2016-TIOL-2451-CESTAT-DEL, it is held thatappellant has correctly availed Cenvat credit on welding electrodes - as regardswhether appellant is entitled to avail Cenvat credit on steel items which has been usedfor fabrication of plant and machinery, it is seen that structures wagon, loading systemis an integral part of the plant and machinery and same has been used fortransportation of finished goods - In these circumstances, applying user test, sincethese items have been used for fabrication of plant and machinery, appellant is entitledfor Cenvat credit - Cenvat credit on steel items and welding electrode is allowed:

CESTAT [para 4 to 6]


Lucky Tex International Vs CC, CE & ST (Dated: October 17, 2016)

Central Excise - Exemption - main appellant is a partnership firm engaged in themanufacture of Co-extruded Multi Layer Plastic Film - Notification No.50/2003-CEdated 10.6.2003 provided exemption to new industrial unit to set up in specific areaswhich have commenced commercial production on or after 7th day of January 2003but not later than 31.3.2010 - The dispute in the present case is that the mainappellant, who claimed this exemption, did not commence commercial production on orbefore 31.3.2010 - duty demand with interest and penalties on both the firm andindividual (Partner) were adjudicated and are agitated herein.

Held: The admitted position is that construction activity in the factory was not inprogress; it was found not fit even to keep the machines therein; indicating thatwhatever production shown to have happened on 30/31-3-2010 cannot be consideredas commercial production as the machine was not fit enough for such operation -There is force in the original authority's finding that Shri Kansal's service was shown asterminated mainly to overcome the deposition made by him on 23.4.2010 - Theevidences collected by Revenue indicated that the goods covered by the invoices wereactually obtained from job work/purchased by the main appellant, also admitted by thepartner - even after 3 weeks of commencing commercial production, the physicalcondition of the manufacturing unit was found to be in incomplete status; the windows,walls, floor were in unfinished condition and it cannot reasonably be concluded thatcommercial production and activity on the Three Layer Blow Film machine was instream before 31.3.2010 - The plant itself is of substantial size and is not in completestate, without roof and not apparently ready for commercial production with such newmachinery [Para 5, 6]

Though the appellant claimed to have produced 750 kgs. of poly film on 31.3.2010,quarterly return for the period ending on 31.3.2010 indicated only production of 117kgs; such contradiction in the statutory records raised a serious doubts aboutauthenticity of commercial production - the appellant did not claim any depreciation onthe capital goods for the year 2009-2010 for I.T. purposes, and the original authorityinferred that the said asset was not used as on 31.3.2010, apart from doubting theveracity of certificate given by the Chartered Engineer - the original authority based hisfinding after elaborate detailed examination of all the evidences; no reason to interferewith the conclusion drawn - the claim made by the appellant about commercialproduction on 31.3.2010 was found to be on the basis of mis-represented facts, hencedemand for extended period sustainable on gross violations [Para 7, 9, 10]


Binani Cement Ltd Vs CCE (Dated: October 7, 2016)

Central Excise - Demand - appellant is engaged in the manufacture of cement andclinker, cleared on payment of duty in terms of Sl. No. 1A of Notification No. 4/2006-CE dated 01/3/2006 - The cement bags were marked with contractual price as RSP -The dispute involved in the present appeal is relating to RSP adopted by the appellantfor contracted sales, viewed by the department as not truly reflecting the "retail saleprice" as defined in the notification; that the RSP did not include dealers commission,local taxes (octroi), unloading charges etc.

Held: The contract price does not include the octroi, commission to the dealers andother elements which will necessarily have to form part of the RSP as per the definitiongiven in the notification - The RSP on the basis of such contract price is not the RSP asdefined in the notification; accordingly, the concessional duty as applicable under Sl.No. 1A is not available to the appellant [Para 2]

However, the Original Authority categorically held that the proposal in the show causenotice to demand and recover duty on cement based on tariff rate, and proceeded todetermine the RSP based on prevalent RSP for the destination of impugned cementcleared on contractual price - This is without legal basis, since (a) such fixation of RSPis beyond the scope proposed in the show cause notice; and (b) the RSP cannot bederivatively fixed by an excise officer; it should be printed on the package of excisablegoods and cannot be arrived at by applying calculation or by comparison with similarRSP - also, the Original Authority did not examine the full scope alongwith settled caselaw to determine the correctness of appellant's claim for sale to institutional orindustrial buyers - fit and proper to set aside the impugned order and to remand thematter to the Original Authority to decide the case afresh on all issues, after providingthe appellant adequate opportunity to present their case [Para 3, 4, 5]

2016-TIOL-3355-CESTAT-KOL

Hindustan Coca Cola Beverages Pvt Ltd Vs CCE (Dated: August 25, 2016)

CX - CENVAT - Input Services - Rule 2(l) of CCR, 2004 - It is settled that 'OutdoorCatering Services' and 'Group Insurance Policy Services' are Input services and servicetax paid thereon is admissible as credit - Impugned order set aside and appealallowed: CESTAT [para 5]


Banswara Syntex Ltd Vs CCE (Dated: October 28, 2016)

CX - Refund - Rule 5 of CCR, 2004 - appellant exported goods in the year 2004 andfiled the refund claim on 27.08.2007 - appellants pleaded that they have filed refundclaim within one year of clarification dated 22.03.2007 of the Board and hence shouldbe admitted for sanction - as the refund claim was filed well beyond the period of oneyear from the date of shipment, the same was rejected - appeal before CESTAT.

Held: Board clarified that unutilised additional excise duty pertaining to inputs used inthe goods exported was to be allowed under Rule 5 but has not extended the statutorytime limit prescribed for refund of cenvat credit under Rule 5 - Regarding refund ofinput duty of Rs. 29,57,205/- claimed, as the said inputs have been used in themanufacture of goods cleared for home consumption, provisions of Rule 5 has noapplication - appeal dismissed: CESTAT [para 2, 3]


Thermax Babcock And Wilcox Ltd Vs CCE (Dated: December 02, 2016)

CX - On inputs received u/r 4(5)(a) of CCR, Job worker manufactures intermediateparts and sends to supplier who clears under exemption - whether job worker liable topay CE duty as Notfn. No. 214/86-CE is not available - matter referred to LargerBench: CESTAT [para 11 to 17]



Veer Gurjar Aluminium Industries Pvt Ltd Vs CCE (Dated: November 01, 2016)

CX - CENVAT - Shortage of raw materials - Aluminium scrap covered under the 14 Billsof Entry were received in container in the factory premises of the appellant and thereis no allegation in the show-cause notice nor there are any findings that the saidcontainers were diverted en route - shortage of 0.0041% of total receipt during theperiod June 06 to March 08 is very-very negligible - Such negligible shortage cannot beheld against appellant for denial of CENVAT Credit of duty paid on the imported inputs- Impugned order set aside and Appeal allowed: CESTAT [para 6, 7]


Venus Wire Industries Pvt Ltd Vs CCE (Dated: November 15, 2016)

CX - Lower authorities viewed that pickling and annealing of stainless steel wire rodsdoes not amount to manufacture u/s 2(f) of CEA, 1944 and hence availment ofCENVAT credit on inputs is incorrect - SCN was issued for recovery of allegedlyineligible cenvat credit availed and also for the recovery of the rebates alreadysanctioned - demands confirmed with interest and penalty - appeal to CESTAT. Held:Firstly, exports under rebate are under the physical control or the approval of thejurisdictional range officers, and the range officers should have objected to suchclearances sought to be done by the appellant - Secondly, it is the avowed principle ofthe Government of India that when the goods are for export, no taxes/duties need tobe included in the value - This avowed principle of the Government of India will go fora toss if the appellant herein is not granted the benefit of cenvat credit on the inputswhich he has procured on payment of duty and after undertaking the process ofpickling and annealing, exported the goods - Tribunal has in Finolex Cables Ltd. 2006-TIOL-1619-CESTAT-MUM categorically held that the assessee cannot be preventedfrom availing benefits available to merchant exporter for exports merely because hehappens to be a manufacturer - therefore, there is no merit in the impugned orderwhich is set aside and appeal is allowed with consequential relief: CESTAT [para 8, 9,10, 12]


Meghalaya Sova Ispat Alloys Ltd Vs CCE (Dated: September 23, 2016)

CX - Valuation - Section 4 of the CEA, 1944 - Notfn. 32/99-CE - Refund - Whether itwas open to the appellants to pay duty on the prices, which were inclusive of freight -admitted position is that the place of delivery was different than the place of removaland, therefore, the cost of transportation from the place of removal to the place ofdelivery was required to be excluded for determination of value in accordance withRule 5 of CE Valuation Rules, 2000 - However, the appellants did not do this and paidmore duty than required to be paid under the law, which resulted in excess refundunder notification No.32/1999-CE - Commissioner(A) upheld order of original authorityand rejected the appeal, hence appellant before CESTAT. Held: Issue involved iswhether or not appellant was eligible to inclusion of freight from the factory gate to theplace of delivery - It is the case of the appellant that the contracts for goods in theircase are FOR destination and the place of removal is the place of delivery where goodsare sold - onus is on the appellant to establish the point of sale with documentaryevidences to stake claim for exemption and refund under Notification No.32/99-CE -Inspite of the specific directions from the bench, appellant has not been able to bringon record that ownership of the goods, till their delivery at the doorsteps of the buyers,lies with them and that insurance of goods in transit is borne by the appellant - sincethe appellant is not able to establish that the sales/clearances effected by them are onFOR destination basis, appeal filed is dismissed: CESTAT [para 5, 6, 9]


Jai Bhawani Con Cast Pvt Ltd Vs CCE & ST (Dated: September 19, 2016)

Central Excise - Demand on account of clandestine clearances - Preliminary objectionthat opportunity of cross examination was not allowed - Held: The Tribunal in the caseof Kuber Tobacco India Ltd. 2016-TIOL-769-CESTAT-DEL held that the admissibility ofevidence in an adjudication proceedings if based on statements, has to follow theprocedure set out in section 9D of Central Excise Act, 1944 - It proper to remand thematter back to the Original Authority to follow the procedure set out in Section 9D ofthe Act - Impugned order is set aside and the matter is remanded back to the originalauthority for the decisions afresh. (para 7 & 8)


Braithwaite And Corporation Ltd Vs CCE (Dated: September 20, 2016)

CX - Limitation - Appellant is not agitating the demand on merits but on limitation onthe ground that Railway Ministry had opined that wagons intended for use by IndianRailways are fully exempted. Held: Contract clause relied upon by the appellant is ageneral clause & also covers situations where duty is also payable - It is not correct onthe part of the appellant to say that when wagons are supplied to oil companies also,the same shall stand exempted - Appellant never reflected in their returns that suchwagons are intended for Oil companies - Even after coming to know that saidexemption is not applicable appellant did not bring it to the notice of the department &also did not pay the duty liability - Invocation of extended period in the existing factualmatrix is correct - demand and imposition of penalties is justified - Appeal dismissed:CESTAT [para 4, 5]


Garg Ispat Udyog Ltd Vs CCE & ST (Dated: September 30, 2016)

CX – CENVAT credit availed on Inputs viz. HR Coils/Skelp, Zinc etc. without allegedlyreceiving the same in the factory and in some cases sold outright. Held: Appellantconcedes that the inputs have not been received in the factory from the job workerand that the appellant has accepted its liability, therefore, demand of Rs.11,70,737/-confirmed in the impugned order is justified - With regard to the submission of theappellant that 35 consignments of inputs for the period 2005-06 and 30 consignmentsfor the period 2006-07 were removed from the factory under the cover of proper andvalid invoices, and the authorities below have only considered 9 and 13 consignmentsrespectively, without giving any cogent reasons as to why the other consignments shallnot be taken into consideration, the matter should go back to the original authority forverification of such factual aspect – Appeal disposed of: CESTAT [para 6, 7]


E Merck Ltd Vs CCE & C (Dated: December 1, 2016)

CX - Refund - section 11B of the CEA, 1944 - Benefit of ‘payment of duty underprotest' made by the manufacturer cannot be extended to the buyer - Appeal rejected:CESTAT [para 7, 8]

CX - Refund - Even though the amount was credited to the Consumer Welfare Fund, ifthe buyer of the goods comes forward and claims the refund and if he is eligible interms of Section 11B, the refund should be granted to the buyer of the goods as aclaimant: CESTAT [para 6]



Jindal Steel And Power Ltd Vs CCE & ST (Dated: November 9, 2016)

CX - CENVAT - Credit is admissible of duty paid on beams, columns, structures,fabricated columns used as inputs for manufacture of structures and cranes, whichwere removed on payment of appropriate duty - admissibility of CENVAT credit inrespect of Railway track material, JO truck etc., were subject matter of earlierproceedings and wherein Tribunal has held in appellants favour - steel furnitures usedin the IT department within the factory campus is also an admissible input as the sameare used in relation to the manufacturing business - since issues have been settled infavour of appellant, impugned orders cannot be sustained - orders set aside andappeals allowed: CESTAT [para 5 to 9]


CCE Vs Suryalaxmi Cotton Mills (Dated: October 24, 2016)

CX – As the excisable goods became exempted, respondent assessee reversed CENVATcredit contained in the finished goods in process and final product – subsequently, theyrealized that no reversal was required, hence filed refund claim but same was rejectedby original authority – Commissioner(A) followed decision in Ashok Iron & SteelFabricators - 2002-TIOL-274-CESTAT-DEL-LB and allowed appeal – Revenue in appealbefore CESTAT and submit that exemption Notf. 30/2004-CE specified that it shall notapply to the goods in respect of which credit of duty on inputs has been taken underCCR. Held: At the time the exemption Notification No. 30/2004-CE came into effect,there was no provision for reversal of credit in respect of inputs contained in the saidexempted goods or lying as such for the reason that credit was availed prior toissuance of the exemption notification and at the time of availment of credit there wasno bar and the CENVAT credit availed was correct and legal – such provisions werespecifically inserted vide rule 11(3) of CCR w.e.f 01.03.2007 and same cannot beapplied retrospectively – no infirmity in the impugned order, hence, Revenue appealdismissed: CESTAT [para 4]


Varrac Engineer Pvt Ltd Vs CCE & C (Dated: October 31, 2016)

CX - Valuation - Section 4 of the CEA, 1944 - Sales promotion which is part and parcelof sale price of distributors cannot be added in the sales price of the appellant,particularly when there is no extra consideration flowing on account of sales promotionto the appellant - impugned order is set aside and appeal is allowed: CESTAT [para 5]


Fedders Lloyd Corporation Ltd Vs CCE (Dated: June 7, 2016)

CX - CENVAT - During the period from 26.07.2002 to 31.12.2002, appellant cleared AirConditioners and Chillers to defence organizations at Nil rate of duty under NotificationNo.64/95-CE - Revenue alleged that since goods cleared at Nil rate of duty weremanufactured out of inputs on which Cenvat Credit was availed and the appellant didnot maintain separate accounts for dutiable and exempted final products, therefore,appellants were liable to pay amount equal to 8% of value of such goods - In themeantime, appellant reversed Rs.1,91,389/- through various entries dated21.07.2002, 31.08.2002, 31.10.2002 and 05.01.2003, treating the said amount asattributable Cenvat Credit availed on the inputs that have gone into the manufacture ofsaid exempted goods - SCDN issued on 15.04.2005 confirmed with equal penalty -appeal rejected and hence appellant before CESTAT. Held: Appellant submitted thatattributable Cenvat Credit was reversed from time to time and said intimation wasrecorded in RT-12 and nothing was hidden from the department, therefore, demand istime barred - Further, there are large number of Rulings by appellate for a holding thatreversal of Cenvat Credit amounts to non-availment of Cenvat Credit and, therefore,question of recovery of 8% amount does not arise - moreover, by s.72 of FA, 2010retrospective amendment was made allowing such reversal of attributable credit - SCNhit by limitation - appeal allowed: CESTAT [para 5, 7]


Aksh Optifibre Ltd Vs CCE & ST (Dated: June 24, 2015)

CX - Original authority sanctioned the rebate claim but ordered for adjustment of theclaim amount against the arrears/ Govt. dues pending realization from the appellant,allegedly in terms of section 11 of the CEA, 1944. Held: Since the Central Excise dutyliability is under contest and the issue is subjudice before the Appellate Authority, itcannot be called as arrears - impugned order is set aside and the appeals are allowedwith consequential relief: CESTAT [para 4, 5]


CCE Vs Manmade Spinner India Ltd (Dated: November 11, 2016)

CX - Pre-deposit ordered by Tribunal made good by debit in CENVAT account - aftercase was decided in favour of assessee, refund claimed of pre-deposit - AA allowedrefund by re-credit in CENVAT account but Commissioner(A) directed payment ofrefund in cash - Revenue in appeal before CESTAT. Held: Cash refund can be givenonly in situation where either the assessee has paid the amount in cash or refund isagainst the export of goods - merely by debit in the CENVAT account the nature ofCENVAT credit cannot be changed to cash at the time of sanctioning of refund - Refundin cash ordered by the Commissioner (Appeals) is absolutely without authority of law,therefore, impugned order is set aside and Revenue appeal allowed: CESTAT [para 5]



Triveni Engg And Industries Ltd Vs CCE (Dated: September 16, 2016)

CX – Whether Welding electrodes, M.S. Plates, Channels, Angles, H.R. Coils areentitled for CENVAT credit. Held: Issue is no longer res-integra and the same is settledby the ruling of this Tribunal in the appellant's own case - 2016-TIOL-2315-CESTAT-ALL , wherein it has been held that Welding electrodes etc., which are used for repairand maintenance of plant and machinery, are part of manufacturing process and areeligible to modvat Credit and it is further held that the welding electrodes used by theappellants in repair and maintenance and fabrication of machinery parts are eligibleinputs – As issue is interpretational, extended period of limitation, is not invocable –Impugned order is set aside and appeal allowed with consequential relief: CESTAT[para 4]


Terex Equipments Pvt Ltd Vs CCE & ST (Dated: September 23, 2016)

CX - Appellants are manufacturers of Excavators, Backhoe Loader & Skid Steer andtook credit of service tax on warranty provided by their dealers - Revenue of the viewthat the warranty provided by dealers is not input service for the manufacturer –demand issued and confirmed by lower authorities – appeal to CESTAT. Held: Inappellant's own case Tribunal had vide Final Order No. 70050-70051/2015 followingthe decision in Danke Products - 2009-TIOL-1337-CESTAT-AHM where it is held thatrepair and maintenance of transformers during warranty period is an activity ofrelating to sale of goods, allowed credit of service tax on warranty provided by dealers– in view of the precedent decision, impugned order set aside and appeal allowed:CESTAT [para 4]


Oil India Ltd Vs CCE (Dated: September 15, 2016)

CX - Appellant made pre-deposits of Rs. 2 Crore + Rs 3 Crore on 25/1/2000 as per thedirections contained in stay order passed by the Tribunal - issue was finally decided infavour of the appellant as per final order and on 16/8/03 & 24/9/03 refund of pre-deposit made by the appellant was paid to the appellant but no interest was paid –appellant vide various letters represented to pay interest but the same was notconsidered by department saying that Sec 35 F of the CEA, 1944 does not allowpayment of such interest – appeal to CESTAT. Held: It is a well accepted legalproposition that Circulars issued by CBEC are binding on the field formations -Secondly, a consistent stand has been taken by CESTAT & Superior Courts thatinterest on delay of pre-deposit refunds attracts interest as per Para - 4 of CBECCircular dated 8/12/2004 - observations made by the first appellate authority are notsustainable & are required to be set aside - Appeal of the appellant to the extent ofpayment of interest on delayed payment is allowed on merits - appeal filed by theappellant is allowed and the relevant date for calculating the interest will be 3 monthsfrom CESTAT order dated 3/6/02 as per Para- 4 of CBEC Circular dated 8/12/2004 –

Appeal allowed: CESTAT [para 5.1, 7, 8]

CX - A new case can not be made out by the department when no appeal against OIAdt 13/11/2003 was filed and this ground can not be entertained in view of the ratio laiddown by Apex Court in the case of Hindustan Polymers Co Ltd. - 2002-TIOL-822-SC-CX .: CESTAT [para 6]


Nitin Spinners Ltd Vs CCE (Dated: October 24, 2016)

CX - Refund - Rule 5 of CCR, 2004 - Notfn. No. 5/2006-CE - Commissioner(A) allowingRevenue appeal, hence appellant assessee before CESTAT. Held: For cash refund ofaccumulated credit under Rule 5 of the CCR, correlation of the inputs with the finalproducts exported is not required to be established and the question of restricting therefund claim to the extent the input services were consumed during the quarter ismisplaced - moreover, point regarding one to one co-relationship is not the pointstemming from the order-in-original, which was passed by the Assistant Commissioner- It is only at the review stage that the point of one to one co-relationship between thereceipt of input service in installation of capital goods and use of those capital goods inmanufacture of the final products exported was raised - appeal allowed withconsequential relief: CESTAT [para 4]


CCE Vs Magnum Steels Ltd (Dated: October 17, 2016)

CX -Allegation of clandestine removal - demand of duty of substantial nature cannot besustained on piecemeal evidence which are uncorroborated - Case of the Revenue hasserious infirmities both in law and in fact - Even considering the general principle thatcase of clandestine removal cannot be established by precise and mathematicalcorroborative evidence, the minimum legal requirement is a preponderance ofprobability atleast to sustain the allegation - case of Revenue is full of presumptionsand projection with unexplained gaps in analysis of facts which are too many too glossover - to arrive at a contrary conclusion other than the one arrived by originalauthority, Bench has not been presented with sufficient supportive evidence -Revenueappeals dismissed: CESTAT [para 6 to 12]


JBM Auto Ltd Vs CCE (Dated: December 12, 2016)

CX – Rule 5 of CCR, 2004 – Notification 5/2006-CE(NT) - Refund of Cenvat credit isavailable on inputs used in manufacture of goods, cleared by DTA unit to 100% EOUand same cannot be denied on the ground that it was a case of deemed expert, underRule 5 of CCR, 2004 - Issue is settled by the decision in NBM Industries = 2011-TIOL-677-HC-AHM-CX - Commissioner (Appeals) has erred in rejecting the refund claim -appeal is allowed and the impugned order is set aside – refund is to be granted within30 days along with interest: CESTAT [para 8]


Phils Engg Co Vs CCE (Dated: December 2, 2016)

CX - Demand dropped on ground of time bar but allegation upheld - appeal to CESTAT.Held: Observation on merits challenged by the appellant will not prejudice them -Since the issue is not of recurring nature there is no consequential adverse effect ofthe observation given by the lower authorities on appellant - appeal dismissed:CESTAT [para 4]



CCE, C & ST Vs Bhushan Steel Ltd (Dated: September 29, 2016)

CX - Stay application filed by the Revenue in the matter of o-in-a passed -Commissioner(A) has allowed CENVAT credit in respect of concrete sleepers by treatingthem as "Inputs" and relying on the decisions in Jayaswal NECO Ltd - 2015-TIOL-70-SC-CX and - Jindal Steel and Power Ltd - 2015-TIOL-2115-CESTAT-DEL - since theorder passed is not ex facie bad in law and is a reasoned one, there is no justificationin staying the order - Stay application by Revenue is rejected: CESTAT [para 4]


Sahakar Maharshi Shankarrao Mohite Patil Vs CCE (Dated: July 4, 2016)

CX - Pressmud cleared under exemption - Demand made under rule 6 of CCR andpenalty imposed since CENVAT credit availed on common inputs also used formanufacturing dutiable sugar and molasses. Held: In view of the decision of theSupreme Court where it is held that Bagasse is not a manufactured product asenvisaged in section 2(f) of CEA, 1944 and consequently rule 6 of CCR is notapplicable, following the same in the present case to 'pressmud', demand is set asideand appeal is allowed: CESTAT [para 5, 6]


Lakhwant Singh Gill Vs CCE (Dated: September 27, 2016)

CX - Clandestine removal - Main noticee M/s. G & G Ispat deposited the duty togetherwith interest and 25% of penalty within a period of 30 days from the date of issuanceof show cause notice - in this view of the matter, the proceedings should be deemed asconcluded and no penalty is imposable on the partner, ex-director - penalty set asideand appeal allowed: CESTAT [para 6, 7]

2016-TIOL-3313-CESTAT-CHD

Himachal Futuristic Communications Ltd Vs CCE (Dated: September 19, 2016)

CX - Revenue is of the view that since the appellant had opted for area basedexemption under Notification No.50/2003-CE dated 10.6.2003, therefore, the creditlying in their cenvat credit account on the said date is required to be reversed.

Held: As the issue has already been settled in favour of the appellants in the cases ofH.M.T. - 2008-TIOL-1884 -CESTAT- DEL-LB, United Vanaspati Ltd - 2009-TIOL-723-HC-HP-CX, Ranbaxy Laboratories Ltd - 2012-TIOL-281-HC-HP-CX therefore, it is heldthat at the time opting for area based exemption of Notification No.50/2003-CE dated10.6.2003, the appellants are not required to reversed the credit in their cenvat creditaccount lying unutilized – Impugned order set aside and Appeal allowed: CESTAT [para6 to 9]


DCM Shriram Consolidated Ltd Vs CCE (Dated: September 26, 2016)

CX - Steel structural items have been used for fabrication and erection of variouscapital goods like material and equipment, chute, EOT cranes, boiler support forfurnace etc. - They have also been used to provide support for various capital goodsinstalled in the factory - Department view is that these steel items have been used forfabrication and erection of supporting structures which are ultimately embedded in theearth and hence are not goods, as it becomes immovable property - Credit denied -appeal to CESTAT. Held: Cenvat credit on structural items used in the fabrication of

support structures for capital goods has been decided in favour of the appellants inmany recent decisions - Supreme Court evolved 'user test' to answer the questionwhether the items falls within the purview of 'capital goods' and held in the case ofRajasthan Spinning Mills that steel plates and MS channels used in the fabrication ofchimney would fall within the ambit of 'capital goods' - items in dispute are eitherspecifically find place in Central Excise Tariff as machinery, equipment (kiln, conveyorsystem raw material processing plant) or specifically included in the definition forcapital goods like pollution control equipments, components spare and accessories,storage tanks - Order set aside and appeal allowed with consequential relief: CESTAT[para 6, 7, 10]


Adhunik Steels Pvt Ltd Vs CCE (Dated: September 23, 2016)

CX - Clandestine manufacture and clearance - Duty demand - Private recordsmaintained by the staff of the company cannot be made as the sole evidence to holdthat clandestine removal of the goods is established - In the present case there is noindicator of clandestine removal - Though in the present proceedings a seizure ofRs.2.00 Lakh was made during the investigation but the same has not beenconfiscated as sale proceeds of the alleged clandestinely removed finished goods - inthe present proceedings, there are few confessional statements of the persons whichwere later retracted by the persons concerned - confessional statements subsequentlyretracted can be argued to be an afterthought under a proper legal advice but toobserve the principles of natural justice, it becomes necessary to provide cross-examination of such witnesses - Adjudicating authority has neither made cross-examination of witnesses as the issue nor gave any findings as to why cross-examination of witnesses cannot be allowed - offence of clandestine removal offinished goods and duty demand of Rs.1,08,05,030/- against the main Appellant, is notsustainable and Appeal filed by the main Appellant is required to be allowed on thisaccount - It is also now a settled legal proposition that suspicion howsoever grave cannot take the place of a proof - issue of rejection of Rs.17,50,694/- credit is remandedto the Adjudicating authority to make efforts to provide the cross-examination of therelevant relied upon witnesses and decide this aspect afresh in denovo proceedings -[para 6, 7, 8]

CX - Penalties on Directors - it is observed that no findings have been given at all inthe Order-in-Original dated 30.05.2007 as to why penalties are required to be imposedupon the Appellants - Only in the order portion penalties of Rs.10.00 Lakh each hasbeen imposed upon the Directors - In the absence of any findings by the Adjudicatingauthority in this regard penalties imposed upon the Appellants are set aside: CESTAT[para 9]


SKS Ispat and Power Ltd Vs CCE & ST (Dated: October 28, 2016)

CX - CENVAT - Period involved is April 2009 to March 2011 - credit availed of servicetax paid on GTA services for transporting the final products from the factory of theappellant to the premises of (a) the appellant's depot (b) appellant's consignmentagent and (c) appellant's customers - CCE denied the credit of Rs. 99,21,728/- on theground that the factory is considered as a "place of removal" and any outwardtransportation beyond the factory is not entitled for credit as per the definition of"input service" under CCR, 2004 - appeal to CESTAT. Held: In respect of clearances todepot and consignment agents appointed by the appellant, there is no sale at thefactory gate and, hence, the "place of removal" cannot be factory gate - service tax onfreight paid up to that place of removal is eligible to the appellants - amendmentcarried out w.e.f. 01/4/2008 has no impact to decide the present appeal as in terms ofthe amendment, in the definition of input service, the words "from the place ofremoval" were replaced by "up to the place of removal" - Place of removal as definedu/s 4 of the Act includes a depot, premises of consignment agent, or any other placeor premises from where excisable goods are to be sold after their clearance from thefactory from where such goods are removed - appellants claim regarding eligibility of

service tax paid on GTA services up to their depot or the premises of consignmentagent cannot be denied: CESTAT [para 5]

CX - Credit in respect of clearances to the customers on sale on FOR basis - althoughappellant did not contest on merits, they plead on the ground of limitation. Held: Evenconsidering that there could be some question of interpretation regarding place ofremoval for Cenvat credit purposes, the appellants act of taking credit on the freightcharges which are paid by the buyers and on which no excise duty has been paid bythe appellant cannot be considered as a bonafide act - no reason to interfere with theimpugned order: CESTAT [para 6]

CENVAT - Admissible credit is Rs. 68,61,054/- - Credit of Rs. 6,03,113/- in respect ofclearances to SEZ (paid and appropriated) and Cenvat credit of Rs. 24,34,593/- inrespect of clearances to the customer on which no excise duty was paid are not eligibleto the appellant - penalties accordingly reduced - appeal partly allowed: CESTAT [para7]


STI Phoenix Wear Pvt Ltd Vs CCE (Dated: November 9, 2016)

CX - Refund under Rule 5 of CCR, 2004 - Notfn. No. 5/2006 (CE) NT - In terms ofclause 6 of the notification No. 5/2006 (CE) NT read with section 11B, refund claimspertaining to the period falling within one year from the date on which the refund claimhas been filed are to be held as within time; claim prior to this period, will be hit bytime bar - To determine the amount of refund allowable, matter remanded to originaladjudicating authority to quantify: CESTAT [para 8, 11]

CX - Refund - Rule 5 of CCR, 2004 - Clause 2 of the notification No. 5/2006 (CE) NTspecifies that refund claims are to be submitted not more than once per quarter -Further, in respect of EOUs there is a provision for filing of claims for each calendarmonth - This cannot be interpreted to mean that any claim which is not filed on themonthly basis would stand rejected - Consequently, the consolidated refund claim filedfor the period October, 2007 to September, 2009 on 8.12.2009 cannot be rejectedonly for the reason that it has not been filed on monthly basis: CESTAT [para 6]


Tekari Pump Vs CCE (Dated: October 5, 2016)

CX - Valuation - SCN for the period from May 1995 to 24.09.1997 issued on15.12.2000 - Appellant is a Maharashtra State Government Corporation andmanufacture, by hiring contractor, M.S.Pipes and Shells - Products are not sold in thecommercial market but only meant for use in Government projects - For the purpose ofinvoking extended period, the assessee should have an intent to evade payment ofduty by means of fraud, suppression of fact, collusion etc. - appellant, being aGovernment Organisation, the intention of evasion of tax does not exist - demand notsustainable since time barred - order set aside and appeal allowed: CESTAT [para 5]


CCE Vs Whirlpool of India Ltd (Dated: July 8, 2016)

CX - Assessee manufactured and cleared one particular model of refrigerators for saleto M/s Coca-Cola and their dealers - AV was worked out in terms of s.4A of CEA, 1944after claiming deduction @40% as abatement, from the Maximum Retail Price (MRP) -such Refrigerators were not sold in the open market and were made specifically for useby M/s Coca-Cola India Pvt. Ltd, M/s Hindustan Coca-Cola and their dealers - Revenuetaking a view that since the said Refrigerators were specifically packed for the purposeof servicing an industry, therefore, their AV was to be worked out u/s 4 and not u/s 4Aof CEA, 1944 - lower authorities dropping the demand on the ground that there was

nothing in Section 4A of the Act or the SWMPC Rules, which lays down a condition of‘retail sale' for a product to be eligible for valuation in terms of Section 4A ibid -Revenue appeal to CESTAT. Held: Issue is no longer res integra and has been settledin favour of the assessee by Supreme Court in the case of Jayanti Food Processing PvtLtd - 2007-TIOL-150-SC-CX - Appeals filed by Revenue are dismissed: CESTAT [para5, 6]


JSW Steel (Salav) Ltd Vs CCE (Dated: October 26, 2016)

CX - Repairs and maintenance of Guest House, Painting, Water Proofing and Plasteringof Building Colony and Professional Charges for Interior Designing at Guest House -Services are Input services as same issue settled in favour of appellant in their owncase cited as 2016-TIOL-2078-CESTAT-MUM - appeals allowed with consequentialrelief: CESTAT [para 4]


CCE Vs Bhanu Flavours And Fragrances Company (Dated: August 11, 2016)

CX – Notfn. 33/99-CE – AA held that blending and mixing carried out by theRespondent does not amount to manufacture and adjudicating authority denied thebenefit of area based exemption, refund claim also rejected – Commissioner(A)allowing appeal and also directing payment of interest u/s 11BB of CEA, 1944 for thedelay – Revenue in appeal to CESTAT on the ground that Premises-II was notregistered with the department, therefore, exemption under Notification No. 33/99-CEdated 8/7/1999 was wrongly extended by the first appellate authority; as far asinterest is concerned, since section 11B does not apply to refunds under thenotification 32/99-CE, interest is not payable. Held: There does not seem to be anymotive as to why original RC will be hidden by the Respondent from the Central ExciseAuthorities - Original RC was with the department as Respondent was not to bebenefitted in any way by withholding the original RC and benefit of doubt is given tothe Respondent - Jurisdictional Guwahati High Court on the same issue while decidingthe case of Amalgamated Plantations (P) Ltd. Vs. Union of India = 2012-TIOL-1097-HC-GUW-CX held that interest is payable u/s 11BB of CEA, 1944 in case of delay insanctioning refund within three months from the date of receipt of application –Revenue appeal dismissed: CESTAT [para 6.1, 7, 8]


CCE Vs Agarwals Metals (Dated: October 21, 2016)

CX - Respondent inter alia engaged in the process of cleaning, anodizing,electroplating, powder coating etc. on aluminium, copper & brass and steel pipes &tubes, sections and for this, they procured aluminium, copper, brass, chemicals andcapital goods and availed credit of excise duty - Proceedings initiated to deny credit onthe ground that the process undertaken does not amount to manufacture in terms ofSection 2(f) of CEA, 1944 – adjudicating authority disallowing credit – in appeal,Commissioner(A) held that no CENVAT credit is admissible on inputs as processundertaken does not amount to manufacture; however credit allowed on capital goodsand also held that demand for extended period is not sustainable as SCNs were issuedearlier also on same issue; penalty also modified – Revenue in appeal before CESTATand submits that respondent did not provide the detail in time; that two show causenotices denying entire cenvat credit were issued for normal period from April 2006 toDecember, 2006 on the basis of information available in the monthly ER-1 returns tosafeguard revenue. Held: Observation of Commissioner(A) in the matter of limitation isnot factually rebutted by Revenue – appeals rejected: CESTAT [para 2, 3]


S M Auto Engineering Pvt Ltd Vs CCE (Dated: November 8, 2016)

CX – Appellant bought semi-finished Auto Parts and after carrying out processes suchas sizing on fixture, powder coating, inspection, fine boring, deburring, gauging,thickness measurement, dimension inspection, application of rust preventive oil,champering, tapping, welding, drilling, notching, thread cleaning cleared the goods onpayment of Excise duty – AA denied CENVAT credit on the ground that the appellant isnot carrying out any manufacturing activity – appeal to CESTAT. Held: Even if theactivity does not amount to manufacture, appellant is entitled for the CENVAT credit onreceipt of semi finished goods on the basis of re-issue of goods on payment of duty inview of Rule 16 of the CER, 2002 - appellant has discharged duty on the transactionvalue of the processed goods and which is more than credit availed - appellant isentitled for credit – no demand can exist – Impugned order set aside and appealallowed: CESTAT [para 4]


Universal Starch Chem Allied Ltd Vs CCE & C (Dated: October 14, 2016)

CX – Section 4 of CEA, 1944 - Valuation of goods manufactured on job-work underRule 8 of Valuation Rules, 2000 can only be done in a case where the goods are usedfor captive consumption within the factory or if it is used by other company on theirbehalf - In the present case, the goods manufactured on job-work by the appellant isnot used by themselves for captive consumption whereas the same is used by othercompany i.e. M/s Unique Sugar Mills Limite d and use by M/s. Unique Sugar Mills Ltd.is not on behalf of the appellant - Therefore, ingredient of Rule 8 does not exist in thetransaction - Valuation done by the appellant following the principles laid down by theSupreme Court in Ujagar Prints i.e. cost of raw material + job charges including profitof the job-worker is correct – Impugned order is set aside and appeal is allowed:CESTAT [para 8]


CCE & ST Vs Dalmia Chini Mills Ltd (Dated: September 28, 2016)

Central Excise - CENVAT Credit - revenue took a view that the appellant has wronglyavailed the cenvat credit on steel items used in fabrication and manufacture of variouscapital goods and structures for supporting the capital goods - as these steel items areultimately embedded to the earth and hence are not goods as they become immovableproperties.

Held: the issue of Cenvat credit on structural items used in the fabrication of supportstructures for capital goods has been decided in favour of the appellants in manyrecent decisions - In the case of Monnet Ispat & Energy Ltd. vs. CCE, Raipur, tribunalheld that the Hon'ble Supreme Court evolved 'user test' to answer the questionwhether the items falls within the purview of 'capital goods' and held that in the caseof Rajasthan Spinning Mills that steel plates and MS channels used in the fabrication ofchimney would fall within the ambit of 'capital goods' - based on the several decisions,the appeal is allowed - Hence, the impugned order is set aside - (Para 4, 5, & 6).


Maruti Ferrous Pvt Ltd Vs CCE (Dated: October 14, 2016)

CX– CENVAT - Applying the "user test", items namely, angle, channel, plate, joist, rail,etc., which have been used for manufacturing various capital goods are eligible forCenvat credit – Appeal allowed with consequential relief: CESTAT [para 6.2]


RCL Cement Ltd Vs CCE (Dated: August 25, 2016)

CX - CENVAT - Transit insurance & outward freight is borne by the appellant -Ownership of the goods till their delivery at the footsteps of the buyer remains with theappellant and service tax on freight is also paid by the appellant - Under the existingfactual matrix, deliveries of cement have to be considered as on FOR destination basisand conditions of CBEC Circular No. 97/6/2007 - ST dt 23/8/2007 are fulfilled as perthe ratio laid down by P & H High Court in Ambuja Cement Ltd. Vs. UOI - 2009-TIOL-110-HC-P&H-ST - service tax paid on the outward freight during the relevant periodwas correctly taken by as credit by the appellant - O-in-A set aside and appealallowed: CESTAT [para 6, 7]


Nestle India Ltd Vs CCE (Dated: June 9, 2016)

CX - Whether appellants are liable to reverse input credit under Rule 57CC of CER,1944 read with rule 6 (1) of the CCR, 2004 for removal of broken noodles (wasteproduct) exempt under Notification No. 3/2005-CE. Held: In the sample bills ofclearing the waste product under question following description is mentioned "floorsweeping for Cattle feed" - In view of the ruling of the Supreme Court in the case ofDSCL Sugar and others - 2015-TIOL-240-SC-CX , the provisions of Rule 6 (3) of CCR,2004, will not be attracted in the case of clearance of waste and by-product arisingduring the manufacture of taxable final product - extended period of limitation is notattracted in this case – appeal allowed with consequential benefits: CESTAT [para 7]


Fertilizer Corporation Of India Vs CCE (Dated: August 11, 2016)

CX – Notfn. 5/98-CE, 5/99-CE - Duty on Furnace Oil (FO) – if used as feed stock dutyon FO was Nil and if used for other purposes, duty is @5%/8%. Held: Onus of claimingan exemption notification is on the assessee to satisfy that all the conditions of anexemption notification, including the quantities claimed to be entitled to exemption -quantities claimed to be used as feed stock or for other purposes also needsverification – matter remanded to adjudicating authority: CESTAT [para 4, 5]


Oriental Carbon And Chemicals Vs CCE & ST (Dated: September 14, 2016)

CX – Allegation of clandestine removal of Carbon black and confirmation of dutydemand. Held: In view of the standard practice followed by the appellant of fillingslightly excess quantity to avoid any commercial disputes with their buyers, no case ofclandestine removal is made out - evidence collected by the Commissioner behind theback of the appellant cannot be relied upon and the same have got no evidential valuein absence of giving proper opportunity to object or explain the same - Moreover, thesaid evidence collected from other companies/manufacturers in the same line ofbusiness is also not reliable in view of the standard laid down by the BIS whichprovides for variation of actual net weight of carbon black - appellant have notreceived any additional consideration for the extra quantity packed - no excise duty ispayable by the appellant on the excess quantity packed which is negligible and forsake of commercial consideration - appellant will be entitled to consequential benefitsincluding refund of pre-deposit made with interest to be granted within 45 days:CESTAT [para 15]


Cable Corporation Of India Ltd Vs CCE (Dated: October 21, 2016)

CX - Prescribed documents - CENVAT credit denied on the ground that appellant hadavailed credit on the basis of customs duty paid challans and thus contravened Rules 3& 9 of CCR, 2004 - appeal to CESTAT. Held: It is not disputed that the inputs, on which

credit has been taken, were imported by the appellants who filed the bill of entry forwarehousing - as they could not file ex-bond bill of entry, goods cleared on payment ofcustom duty which was duly accepted by customs authorities - duty payment challanshave been signed by the Customs officer "for Assistant Commissioner of Customs(Bond Department)", Nhava Sheva Custom House and contain material particulars likebill of entry no., description of goods, bond no., assessable value, duty and interestamount - There is no allegation in the SCN that the goods were diverted or were notreceived in the factory - as proper entries have been made in the RG-23 Part-IIregister and there being no allegation that the duty paying challans are fake, credittaken rightly - Appeal allowed: CESTAT [para 6, 9]


Jai Corp Ltd Vs CCE & C (Dated: October 14, 2016)

CX - Refund in respect of excise duty attributed to the element of sales tax - If thecredit note is issued in respect of duty already paid to the buyer, the incidence of suchduty does not stand passed on to any other person in view of the apex Court decisionin Addison & Co. Ltd - 2016-TIOL-146-SC-CX-LB - Therefore, the order of theCommissioner (Appeals) ordering credit of refund into Consumer Welfare Fund is notproper - Accordingly, refund is not hit by mischief of unjust enrichment and appellantis entitled to refund - However, as regards the sales tax matter pending before thesales tax appellate authority, Bench is of the view that the adjudicating authority cantake an affidavit from the appellant to the effect that in case it is held that the salestax is not payable then the amount of sales tax paid by the appellant shall become partof the transaction value and accordingly the appellant shall return the refund amountin accordance with law - Matter remanded: CESTAT [para 7, 8, 10]


CCE Vs Jaimin Enterprises (Dated: October 13, 2016)

CX - Denial of SSI exemption notfn. 8/2001-CE - It is the case of the Revenue thatappellant had cleared readymade garments, CH 62.01 of CETA, 1985, having a brandname "Nutty Boys" and that the brand name belonged to another person -Commissioner(A) dropped demand on the ground that although M/s. Zeal Apparel hadinitially applied for registration of the subject brand name but subsequently they hadwithdrawn and disowned w.e.f. 19/20.03.01 through their disclaimer certificate andduly submitted before Trade Mark Registry and which fact is not disputed byDepartment; that, therefore, the said Trade mark is not claimed by anyone other thanappellant at least from 19/20.03.01 onwards - Revenue appeal to CESTAT. Held: SCNcovers the period after March 2001 onwards - in view of the aforesaid facts/findings,during the disputed period the said brand name is not owned by M/s. Zeal Apparel -Since SCN is not related to period prior to March 2001 so the use/ ownership of saidbrand name prior to March 2001 has no bearing on the instant case - There is no barthat disowned brand name cannot be used forever by anybody else - SSI exemption isnot available only if brand name is owned by other - first appellate authority correctlysummarised the factual position and hence there is no ground to interfere in such areasoned order - Impugned order is upheld and Revenue appeal is rejected: CESTAT[para 4, 4.1, 5]


CCE Vs Poona Radiators And Oil Coolers (Dated: August 30, 2016)

CX - Clubbing of units - SSI exemption notf. 175/86-CE - AA has recorded that theeight units are separately registered as small scale unit under the CEA as well as withthe various Govt. Depts. under Sales Tax Act, Income Tax Act, Factories Act, etc.; thateach unit has acquired their own raw materials and finished goods were sold directly totheir respective customers; that all the goods are as per order placed by the customersof each unit; that units are independent and hence clubbing of clearance cannot beaccepted - Factual position is not controverted by department - moreover, there isnothing on record to show that manufacturing activity was distributed to create a

façade for evasion of duty - as there is no common control or financial flow back andeach unit is having independent manufacturing, findings of AA are correct - Impugnedorder is proper and legal and does not require any interference - Revenue appeal isrejected: CESTAT [para 4, 5]


CCE Vs Rama Krishi Rasayan (Dated: September 1, 2016)

CX - Period September, 1999 to August 2004 – Demand by Revenue on the groundthat furnace oil which was procured by assessee was not used as a feedstock but usedfor generating steam and hence not eligible for the benefit of exemption underNotifications Nos. 5/1999, 6/2000, 3/2001 and 6/2002-CE – AA confirming demandbut Commissioner(A) setting aside demands holding that the steam generated byconsuming furnace oil is used for the manufacture of fertilizer – Revenue appeal beforeCESTAT. Held: Apex Court in Gujarat Narmada Valley Fertilizers Co. has settled the lawholding that furnace oil (LSHS) used in the manufacture of fertilizers cannot beconsidered as feed stock, hence on merits assessee has no case – consequentlyassessee respondent is not eligible for benefit of notifications – since the furnace oilwas procured based on the CT-3 certificate issued by the jurisdictional Range Office ofrespondent assessee, the demand for the period beyond one year from the date ofissuance of SCN is blatantly hit by limitation – matter remitted to re-quantify thedemand for the normal period - since the entire issue is of interpretation of notificationand was settled only by apex court and the instant demand being hit by limitation,penalty imposed is set aside – appeal disposed of: CESTAT [para 6, 6.1, 6.2, 6.3, 6.4]


Shubh Labh Ispat Pvt Ltd Vs CCE & ST (Dated: March 30, 2016)

CX - Demand of duty on Clandestine removal of M.S.Ingots - Proceedings wereinitiated against assessees on the basis of search and enquiry with reference toactivities of Indian Steels, Raipur - In the case of Raipur Forgings - 2016-TIOL-1121-CESTAT-DEL Tribunal had observed that Revenue had stopped investigation afterrecording statement; that no further verification or evidence was sought to berecovered for the clandestine manufacture and thereafter, their unaccounted clearanceto various buyers; that it is essential to have some piece of corroboration for such aclandestine activity other than the sole evidence of general admission statement of theDirector or /partner, which itself was contested and denied later - impugned orderscannot be sustained - appeals allowed: CESTAT [para 4, 5]


Hindoostan Spinning And Weaving Mills Ltd Vs CCE (Dated: July 28, 2016)

CX - Notfn. 14/2002-CE, Rule 6 of CCR - CENVAT - As long as the credit is not retainedfor utilization at a later stage, the condition of non-availment of credit has beencomplied with - lump sum reversal at the end of the month suffices - Order set asideand appeal allowed: CESTAT [para 4, 5]



Bharat Prelam Industries Ltd Vs CCE (Dated: October 19, 2016)

Central Excise - Manufacture of plain and pre laminated particle board liable to CentralExcise Duty - availed exemption under notification number 6/2006, which exemptedbagasse board - department was of the view that the product manufactured by theappellant are wood free plain or pre laminated particle or fiberboard, made fromsugarcane bagasse or other agro waste which were covered by Sl. No. 87

of notification 4/2006 - Hence, proceedings initiated to demand and recover centralexcise duty and imposed penalties - On appeal, Commissioner (A) rejected theassessee's appeals.

Held: the lower authorities have chosen notification number 4/2006-CE only on theground that the description of the impugned product is matching with the entry in thesaid notification - however, there is no dispute that the appellant is manufacturingbagasse board which is covered by Sl. No. 82 of notification 6/2006 CE - the impugnedgoods are eligible to get exemption without any condition under these two notificationsthe appellant cannot be compelled to opt for a notification which has got higher dutyliability - No merit in the impugned orders - (Para 5, & 6).


Nestle India Ltd Vs CC & CE (Dated: October 26, 2016)

CX - Input Service Distributor - CENVAT - In the absence of any provision requiringone to one co-relation, even though the service is not used in the appellants' factorybut received and used in different factory of the same company, credit cannot bedenied: CESTAT [para 4]



Crompton Greaves Ltd Vs CCE (Dated: October 14, 2016)

CX - Appellant took credit of duty paid on electric motor and paid 8% u/r 57CC of CER,1944 on the P.D. pump cleared under exemption whenever credit was taken on theelectric motor - However, P.D pumps manufactured out of electric motor which wasprocured duty-free, it is the contention of the appellant that they are neither takingCENVAT credit nor paying 8% under Rule 57CC - Revenue contention is that since noseparate account was maintained and the appellant is availing CENVAT credit, demandequal to 8% of the value of the clearance of the P.D pumps is payable - as demandconfirmed and upheld by Commissioner(A), appellant before CESTAT.

Held: It is a fact that the appellant are procuring electric motors from outside withoutpayment of duty under Chapter X procedure - If this is so, it is obvious that they arenot availing CENVAT credit on such motors - lower authorities have not properlyconsidered this fact and the 8% demand was raised on the entire clearance of P.Dpumps - matter needs reconsideration - appeal disposed by way of remand to originalauthority: CESTAT [para 5]


Prism Cement Vs CCE & ST (Dated: October 28, 2016)

CX - CENVAT - Except for a summary assertion, it is not categorically established inthe present case that all the steel items are used in creation of immovable assets only- On the contrary, appellants submitted detailed certificate by a Chartered Engineerwhich records that, upon physical examination, it is certified that the steel items havebeen used for fabrication of various equipments/accessories in various locations of theplant - A perusal of the usage of the detailed summary as well as supportingphotographs submitted by the appellant will show that the various steel items havebeen used in different manner in capital machinery or associated structure and canrightly be considered as accessories closely inter-connected to the capital goods fortheir function - categorical assertion of facts by the appellant as supported by theChartered Engineer Certificate should have been rebutted with evidences of suchnature before making summary conclusion on the basis of the presumption - variousHigh Courts and Supreme Court have been taking consistent view regarding thesesteel structures and their eligibility to cenvat credit, which is also being followed by theTribunal - Credit admissible - order of original authority is not legally sustainable:

CESTAT [para 12, 13]


Hero Motors Ltd Vs CCE (Dated: November 24, 2016)

CX - Tribunal order allowed the assessees' appeal with instruction to the Revenue topay the interest to the assessee - These appeals were allowed and were not remandedto the original adjudicating authority to decide the appellants claim of interest afresh -said order of Tribunal having attained the finality, it was not open to the jurisdictionalAssistance Commissioner to re-decide the issue of interest and he was only expectedto quantify the interest and pay the same to the assessee in terms of earlier order ofthe Tribunal - provisions of section 11BB of the Central Excise Act are clear and notambiguous requiring the Revenue to sanction interest if the refund claims were notdisposed of within a period of three months from the date of filing – order set asideand appeal allowed with consequential relief: CESTAT [para 8, 9]

2016-TIOL-3259-CESTAT-HYD

Binjrajka Steel Tubes Ltd Vs CCE (Dated: August 19, 2016)

Central Excise - Manufacture of steel tubes, hot rolled strips -Valuation - Post saleexpenses - Includability-Held, collection charges, weighment difference and ratedifference are in the nature of additional consideration and have to be included in theassessable value for the discharge of excise duty - While the demand raised beyondthe normal periodis hit by limitation and unsustainable, demand for the normal periodalong with interest is sustained and the jurisdictional authority is directed to re-quantify the amount of duty and interest for the normal period - Penalty set aside.(Para 6-8)


Tega Industries Ltd Vs CCE (Dated: July 8, 2016)

Central Excise - CENVAT Credit - Appellant availed credit of tax paid on servicesreceived by their Headquarters, on the basis of photocopy of such document ofservices rendered to the Head Office - Revenue viewed the same inadmissible on thegrounds that the document was not proper in terms of Rule 9(1) of CCR 2004; thatonly an ISD invoice issued under Rule 9(1)(g) is permissible for availing credit earnedby Headquarters office; and adjudicated demand for recovery of the credit withinterest and penalty, now agitated herein.

Held: The issue involved in the present proceeding is whether Cenvat Credit can betaken on the basis of document issued in the name of Head Office of the Appellant forservices received by all the units of the Head Office - In the case of Alarsin vs.Commissioner of Central Excise, Mumbai-I, the Tribunal examined identicalcircumstances, and ruled in favor of the Party, relying upon the Doshion ruling -Following the ratio of the Alarsin & Doshion rulings, credit in the instant case is heldadmissible on merit -Revenue contended that at no stage the original duty payingdocument was produced before the department - during the adjudication proceedingsAppellant made a submission that all the original documents mentioned in theproceedings are available at the Headquarters for inspection/review by the departmenthence Appeal is allowed on merits subject to the condition that the original duty payingdocument, on the basis of which Service Tax credit was taken, should be producedbefore the Adjudicating Authority for perusal and verification of the original dutypaying document. [Para 4, 5, 6, 7]


CCE Vs Jct Electronics Ltd (Dated: September 21, 2016)

CX - Appellant imported the goods at the concessional rate of duty and filed

undertaking in their applications under Rule 4 of the Customs (IGCRDMEG) Rules,1996 that they will use the goods imported at concessional rate of duty in their factorypremises - though the goods in question were imported for use in the manufacture ofcolour picture tube of their Mohali unit, but due to the closure of this unit they werenot able to use the said inputs and as such they diverted the goods to their unit inVadodra where they were used in the manufacture of Colour Picture Tubes – benefit ofconcessional rate of duty denied and penalty imposed – appeal to CESTAT. Held: Suchgoods were diverted to Vadodra unit only after giving proper intimation to thedepartment wherein it was clearly intimated that they wish to stock-transfer theseinputs to their Vadodra unit which is also manufacturing the same final product –Therefore, Department was well aware of the fact of diverting the goods to their unit,moreover, the use of the goods has been the same i.e. in the manufacture of thecolour picture tubes only - Once the proper use of the goods in the specified finalproducts have not been disputed by the Department, the exemption availed on theimported goods cannot be denied – for earlier period also, department had challengedthe order of Commissioner(A) and which appeal was dismissed by Tribunal - 2009-TIOL-2369-CESTAT-DEL and upheld by the Punjab & Haryana High Court – no infirmityin order, appeal dismissed: CESTAT [para 4 to 6]


Hemarus Industries Ltd Vs CCE (Dated: September 30, 2016)

CX - Appellants are engaged in the manufacture of sugar molasses and had availedcenvat credit during February, 2009 to June, 2009 on certain imported goods -appellants during the course of investigation, realized their mistake and reversed theinadmissible cenvat credit availed of the basic customs duty and cess and alsoreversed the credit availed on the structural items - Penalty and interest imposed byoriginal authority - Commissioner(A) reducing penalty from Rs.5 lakhs to Rs.3.60 lakhsbut retaining interest liability - appeal to CESTAT. Held: It is clear from the statementof the General Manager that the unit had not commenced production when theinvestigation started and hence there was no clearance from the factory - This fact hasnot been contested by the AR - As there was no clearance from the factory, there wasno question of utilization of the cenvat credit availed by the party - appellants are notliable to pay interest for wrongful availment of Cenvat Credit which has been reversedbefore utilization - as regards penalty, in view of Madras High Court decision in M/s.Strategic Engineering (P) Ltd. - 2014-TIOL-466-HC-MAD-CX, penalty is not imposable -Order set aside and appeal is allowed: CESTAT [para 6, 7]


Zyg Pharma Pvt Ltd Vs CCE (Dated: September 28, 2016)

CX – Valuation – section 4 of the CEA, 1944 - Clearance of physician samples whichare made out of raw material and packing materials supplied by the principal brandowner - appellant-assessee adopted 110% of cost of the product for discharging dutyliability in terms of Rule 8 of CE Valuation Rules, 2000 – Revenue holding that thevalue of comparable goods (MRP based trade pack of similar pharmaceutical products)should be considered for valuation of physician samples.

Held: Since physician samples are not sold in retail and MRP is not fixed on the same,when the samples were sold by the appellant-assessee on a transaction value to theprincipal customer, such transaction value should form basis of assessment - Valuationshould be on the basis of cost of production or manufacture of the goods - BoardCircular dated 25.04.2005 will apply to cases where the samples were distributed freeby the manufacturer - original order dated 16.03.2009 holding that value of physiciansamples in the appellant-assessee's case is to be made in terms of Rule 4 is notsustainable – Appeals filed by assessee are allowed and those by Revenue againstdropping of demands is rejected: CESTAT [para 11] - Assessee appealallowed/Revenue appeal rejected: DELHI CESTAT


CCE Vs Superintending Engineers (Dated: September 8, 2016)

CX - Issue is whether an assessment made by the manufacturer can be changed byway of a refund claim filed by the customer.

Held: Original manufacturer cleared the goods on payment of duty and has notchallenged the self-assessment made by him - It is a well-settled legal proposition thatany classification or the rate of duty made at the end of the manufacturer cannot bechanged at recipient's end - Respondent herein is not eligible to refund claim when theoriginal manufacturer has not sought exemption of the said Notification 6/2002-CEMoreover, the Notification is a conditional one which can be seen to have been fulfilledonly at the time of clearance of the goods from the manufacturer's end OIA set asideand the OIO is restored Reveue Appeal allowed: CESTAT [para 6, 7] - Appeal allowed:KOLKATA CESTAT


Cane Agro Energy India Ltd Vs CCE (Dated: July 7, 2016)

CX - Appellant manufactures sugar and molasses from sugarcane and in the process ofproduction, waste in the form of bagasse and pressmud emerge - Some quantity ofboth these wastes are sold and the rest of the bagasse is consumed captively for firingthe boilers - By FA, 2008, the definition of 'excisable goods' in section 2(d) of CentralExcise Act, 1944 was amended by inserting an explanation to expand the scope of'goods' to include those that are capable of being bought and sold for a consideration -AA held that bagasse and press-mud are sold by appellant and are classifiable underTariff Item 2303 20 00 chargeable to Nil rate of duty; and accordingly, they areexempt goods; that since credit is availed on common inputs, appellant is required topay amount of 5% on the value of exempted goods in view of rule 6(3)(i) of CCR -appeal to CESTAT.

Held: Issue is no longer res integra in view of apex court decision in DSCL Sugar Ltd. -2015-TIOL-240-SC-CX holding that since the emergence of Bagasse and Pressmud isnot on account of activity of manufacture as defined in section 2(f) of the CEA, 1944,rule 6 of CCR, 2004 has no application - Impugned orders are set aside and appealsare allowed: CESTAT [para 5, 7]


Brahmos Aero Space Pvt Ltd Vs CC, CE & ST (Dated: August 4, 2016)

Central Excise - Refund rejection - Public sector undertaking - Export of MissileInterface Units- Procedural lapses incomplying with Notifications/Circulars of technicalnature can be condoned when export of inputs is established-Export effected based onCommercial invoices - Mere non-submission of an application for exporting goods inARE-I format heldhas to be treated as a procedural lapse and cannot be a ground todeny substantive benefit - Rejection of refund not justified - Appeal allowed withconsequential relief. (Para 6, 7)


Kirloskar Batteries Pvt Ltd Vs CC & CE (Dated: November 4, 2016)

CX - Removal of used Capital goods to another unit at Bangalore - CENVAT creditavailed in 1997-98 and goods cleared in May 2007 - SCN issued seeking recovery ofamount of credit taken initially by alleging that goods were cleared "as such" - demandconfirmed by AA and upheld by Commissioner(A) but penalty set aside - appeal toCESTAT.

Held: In view of Delhi High Court decision in Harsh International (Khaini) Pvt. Ltd. -2012-TIOL-446-HC-DEL-CX, used capital goods cannot be stated to be sold "as such"capital goods; appellant was not liable to pay excise duty in accordance with Rule 3(5)of CCR, 2004 while removing the used capital goods in May 2007 as amendment inrule 3(5) of CCR, 2004 providing for payment of an amount on clearance of usedcapital goods was effected by insertion of proviso vide notification 39/2007-CE(NT)only on 13.11.2007 - Impugned order set aside and appeal allowed with consequentialrelief: CESTAT [para 5]

2016-TIOL-3241-CESTAT-AHM

CCE Vs Stelmac Ltd (Dated: October 13, 2016)

CX - Respondent had cleared the input VIT to the job worker who ultimately onassembling with other components, converted the said product into TSA - Whileclearing TSA, the job worker instead of paying duty only on the items procured by himand used in the TSA, paid duty on the entire value of the TSA, which included thevalue of the VIT - Respondent had availed Cenvat Credit on the TSA including dutypaid on VIT which has gone into the manufacture of said assembly - appellant couldhave followed the procedure laid down under Rule 3 (5) of CCR while clearing theinputs as such but that itself cannot be the ground for recovery of Cenvat Credit on thesaid Input, which was received back by them from the job worker contained in theTSA, on which appropriate duty was paid by the job worker - Revenue appeal devoid ofmerit, hence rejected: CESTAT [para 6]


Kamal Sponge Steel And Power Ltd Vs CCE (Dated: September 29, 2016)

Central Excise - Cenvat credit availed on structural items like MS angles, shapes,sections, channels used in the fabrication of supporting structures of furnace plant androlling mill - Allowed. (Para 6, 7)


Ashok Grih Udyog Kendra Ltd Vs CCE (Dated: September 7, 2016)

CX - Jaljeera is classifiable under CSH 09.03 upto 01.03.2005 and for subsequentperiod under CSH 09.10 - duty confirmed by classifying under CSH 21.08 does notsustain - In respect of Gulab jamun Mix, Shubham Goldiee Masale (P) Ltd , hadclaimed that they were not involved in manufacture but they were involved in onlytrading of the same - reason for not relying on the said statement is not forthcoming inthe SCNs ,therefore, none of the Show Cause Notices involved in the impugned ordersare sustainable ? appeals allowed in part: CESTAT [para 8]



Delair India Pvt Ltd Vs CCE (Dated: August 31, 2016)

Central Excise - CENVAT Credit - appellant, a manufacturer of 'Dehumidifying TypeCompressed Air Dryer' had supplied these goods to NTPC against internationalcompetitive bidding by availing full duty exemption under Notification No. 6/2006-CE,dated 01.03.2006 (Serial no. 91) - Since they were using common cenvated input formanufacture of good cleared on payment of duty and the goods cleared by availing fullduty exemption and were not maintaining separate account and inventory of inputsmeant for dutiable and exempted final products, in accordance with the Provisions ofRule 6(3)(b) of Cenvat Credit Rules, 2004, they paid an amount equal to 10% of thesale value of the good under the mistaken belief that the provisions of Rule 6 (1), (2)and (3) are applicable - Subsequently, when they realized that in view of the

provisions of Rule 6(6) of Cenvat Credit Rules, in respect of the supplies made againstinternational competitive bidding by availing full exemption under Notification No.6/2006-CE the provisions of sub-rule (1), (2) and (3) of Rule 6 of the Cenvat CreditRules are not applicable and no amount was required to be paid in terms of Rule6(3)(b), they communicated their intention to re-credit the amount in their cenvataccount and acted accordingly - The original authority viewed that the availment of suomoto credit warranted a penalty of equal amount on the appellant; confirmed demandwith interest on the irregular credit, on the ground that it resulted in excess utilizationof cenvat credit which was not available to the appellant - The demands were upheldby Commissioner (Appeals), now agitated herein.

Held: There is no dispute about the fact that in respect of supplied made by amanufacturer against international competitive bidding by availing full exemptionunder notification No. 6/2006-CE (Sl. No. 91) the provisions of sub rule (1), (2), (3) ofRule 6 are not applicable in view of the provisions of sub-rule (6) of Rule 6 - When theappellant had wrongly paid the amount under rule 6(3) of the CenvatCredit Rules andhad requested the Department for its re-credit and thereafter had reminded thedepartment for the re-credit and when in pursuance of their request for re-credit, thesame had been allowed by the Assistant Commissioner - merely because the appellanthad taken the re-credit on their own, there would be no justification for imposition ofpenalty when the re-credit had been formally permitted; there would be no excessutilization of credit during that month, and the demands confirmed with penalty doesnot appear to be sustainable. [Para 5]


Munjal Kiriu Industries Ltd Vs CCE (Dated: August 31, 2016)

Central Excise - CENVAT Credit - Input services credit availed on various servicesunder Rule 2(l) of CCR 2004 denied by Revenue, and agitated herein.

Held: Cenvat credit on construction service namely civil work, architectural service,Civil Construction Work and Electric Fitting workdenied on the ground that the saidservices have been availed outside the factory - As it has been disputed by theRevenue that the construction services have been availed by the appellant outside thefactory or within the factory is to be verified from the Registration Certificate issued tothe appellant; and the matter needs examination at the end of the adjudicatingauthority - the issue of availment of cenvat credit on construction service is remandedback to the adjudicating authority for verification, whether the services have beenavailed outside factory or within the factory [Para 5]

Credit was sought to be denied as address of the service provider was not mentionedon the invoices, which was provided subsequently - lower authority has to verifywhether the address is the proper address of the service provider mentioned in theinvoices; if on verification, if it is found correct, the appellant is entitled for cenvatcredit - Similarly, appellant contended that facilitation charges have been paid by themfor negotiation of purchase of power - If factually so, the appellant is entitled to availcenvat credit and the same is to be examined by the adjudicating authority. [Para 6, 7]

The appellant contended that consultancy / vehicle services have been availed in thecourse of their business manufacturing prior to 01.04.2011 - This fact is to be verified,and if the services pertains to the period prior to 01.04.2011, the appellant is entitledto avail cenvat credit as per the decision of the High Court of Bombay in the case ofUltratech Cement PvL Ltd. - the appellant contended that courier services have beenavailed for sending urgent sample, documents of purchase or sale of the goods whichneeds verification at the end of the adjudicating authority, therefore, the adjudicatingauthority is directed to verify whether the said services have been availed on and after01.04.2011 and to ascertain the fact that the appellant has availed courier servicehaving nexus with the purchase and sale of the goods, in which case credit isadmissible - for the period prior to 01.04.2011, the appellant is entitled to avail cenvatcredit on courier service - credit sought to be denied on the ground that invoices werenot having registration number of the service provider; which has subsequently been

provided - credit is admissible subject to verification of registration - the impugnedorder is set aside, and matter remanded to the adjudicating authority to verify thedocuments produced by the appellant and to give an opportunity to hearing,thereafter, pass an appropriate order in accordance with the law. [Para 8-10]


Saswad Mali Sugar Factory Ltd Vs CCE (Dated: July 04, 2016)

CX - Press mud cleared by the appellant - Revenue demanding payment of amount of5%/10% of the value of the alleged exempted goods.

Held: Supreme Court in the case of UOI vs. DSCL Sugar Ltd - 2015-TIOL-240-SC-CXhas held that bagasse is a non-excisable product and, therefore, the question ofreversing 5% or 10% of the value of goods does not arise – as the said decision isequally applicable to Press Mud, impugned order is set aside and appeal is allowed:CESTAT [para 5, 6]


Air Temp & Allied Agencies Vs CCE (Dated: October 14, 2016)

CX - Undervaluation of goods and short payment of duty - Period involved in thepresent case is from April 1991 to March 1996 - since, during the relevant time,Section 11AC of CEA, 1944 was not in force, therefore, the equivalent penalty u/s11AC was illegally imposed by the lower authority - impugned order to the extent ofimposition of penalty u/s 11AC is set aside - duty confirmed and paid by the appellantalong with interest shall stand maintained - Appeal partly allowed: CESTAT [para 4]


CCE Vs Nitin Spinners Ltd (Dated: September 21, 2016)

Central Excise - DTA sale by 100% EOU engaged in manufacture of Cotton Yarn fabricfrom indigenously produced raw materials - Benefit of concessional rate of duty interms of S.No.3 of Notification No.23/03-CE-Entitlement -Notification amended on6.9.2007 prohibiting EOU from claiming deemed export benefit - Period of disputeinvolved is 1.7.2007 to 16.05.2008- Respondent though did not claim any benefit ofdrawback on the duty paid on indigenously procured inputs,filed a drawback claim onthe same thereafter and was sanctioned - However, respondent in view of theamendment, remitted the amount - Repayment of unintended benefit held cannot beconsidered as a reason for denial of otherwise eligible concessional rate of duty -Demand of duty unsustainable.

The admitted facts are that the respondents were using only the indigenously procuredraw materials and in normal course, they are rightly eligible for the rate of duty asprescribed by Sl.No.3 of the above mentioned notification. However, they are claimingthe deemed export on inputs procured indigenously, which has put them in debar interms of the explanation settled in the said Sl.No.3 on 6.7.2007. Further, it is also anadmitted fact that they remitted back the money, which is the cause for suchdebarment immediately on realizing the legal position. There is nothing on record toshow that the intended benefit was sought to be mis-used by the respondent bydevising colorable methods. The impugned order examined the issue in detail beforecoming to the conclusion that the demand for differential duty is not sustainable. Itwas recorded that during the period 1.7.2007 to 16.5.2008 when the DTA clearanceswere made by the respondent, they had not availed any benefit of deemed export, onthe raw materials used. Thus, during the said period, they were eligible for the benefitin terms of Sl.No.3 of the Notification No.23/03-CE. The bonafide of the respondenthas also been recorded by the Original Authority. As such, no sustainable ground in theappeal is present warranting interference in the impugned order. Accordingly, theappeal is dismissed. (Para 6)


Shree Nirmalanand Steel Casting Pvt Ltd Vs CCE (Dated: October 5, 2016)

Central Excise - Clandestine removal - Demand - Sustainability - Clandestine removaldetermined exclusively based on differences in figures in balance sheet and RG-1registers without substantive evidence in the form of statements of any of theemployees or identifying the buyers, the transporters etc wholly unjustified -Impugned order set aside

Primarily, the demand stand confirmed on the basis of difference between the rawmaterial register and the balance sheets for the year 2007-2008, 2008-2009. TheRevenue's allegations are that the appellants have availed the credit in respect of saidraw materials which stand used by them in the manufacture of final product which wascleared clandestinely. Apart from the fact that the appellant had explained suchdifference and have attributed the same to clerical mistakes at the time of finalizationof their accounts, the fact remains that no difference in the opening balance andclosing balance of raw material stand detected by the officer. The denial of credit asalso the confirmation of demand on the final product, on the basis of comparison offigures in the balance sheet and RG I register have been held to be bad and unjustifiedby various precedent decisions of the Tribunal.

Admittedly, the appellant had taken the credit on the basis of invoices and in respectof the goods received in their factory. To confirm the demand on the basis of differencein figures in balance sheet and RG 1, without their being any further evidence either inthe shape of statements of any of the employees of the appellant or in the shape ofidentifying the buyers, the transporters etc., the finding of clandestine activities cannotbe upheld. It is well established principle of law that onus to discharge the burden incase of clandestine activities is upon the Revenue. In the present case, it is found thatsole basis of Revenue to raise the demand is a difference in the figures, as detected bythe Audit, without their being any difference in the opening and closing balance. Assuch, there is no justification for upholding the impugned orders. The same areaccordingly, set aside and appeal allowed with consequential relief. (Par 8, 9)


Spm Tools Vs CCE (Dated: October 5, 2016)

CX - CENVAT Credit allegedly denied since taken on the strength of debit notes issuedby the service provider - appeal to CESTAT. Held: Issue has been settled in variousTribunal judgments that credit is admissible if taken on the strength of a debit note -more or less all the information required to be mentioned in terms of Rule 9 of CCRappear on the debit notes; and registration number wherever it is not mentioned onthe debit notes, appellant has provided copy of service tax registration issued to theperson who issued the debit notes - no cause for denying credit - order set aside andappeal allowed: CESTAT [para 4]


Dcm Shriram Consolidated Ltd Vs CCE (Dated: October 21, 2016)

CX - Findings given by the lower Revenue authorities that wordings "Under Protest" areonly on the subject part of the letter and not on the main body of the letter is factuallywrong - Consequently, the Revenue cannot say that reversal of subject cenvat creditwas not done "under protest" - time bar in section 11B of CEA will not apply -appellant's claim for refund along with interest is valid - matter remanded for disposalwithin four months: CESTAT [para 9]


Ultratech Cement Ltd Vs CCE (Dated: October 19, 2016)

CX - CENVAT - Appellant uses dumpers to facilitate movement of limestone from themining area to the crusher, located within the same mining area; Limestone is used formanufacturing clinker, which is further used in manufacture of Cement - Credit deniedon Dumper(s) and its parts - appeal to CESTAT. Held: Matter is covered by theCESTAT's decision by the Final Order No. 53330 dated 31.08.2016 in the case of theappellant itself and where dumpers were declared eligible for credit - following thesame, appeal allowed with consequential relief: CESTAT [para 3, 4]


Vachan Foams Vs CCE (Dated: August 1, 2016)

Central Excise - Exemption - Appellant is manufacturer of polyurethane foam & articlesthereof, from Ployol, TDI Silicon, Ammine etc., and claimed area based exemption asper Sl. No.13(iv) of the schedule annexed to Notification No.33/99-CE dated08.07.1999 - exemption deniedby first appellate authority on the grounds that theproduct manufactured by the Appellant fall under Central Excise Tariff Heading 39.22and 39.26 are not made of plastic as the definition of plastic given in Chapter Note 1 ofChapter 39 only considers those materials which are falling under Central Excise TariffHeading 3901 to 3914 to be the plastic material; and agitated herein.

Held: Sl.No.13 of the table annexed to Notification No. 33/99-CE dated08.07.1999does not refer to any Tariff Heading or Chapter of the Central Excise TariffAct, 1985 for plastics - It is not the findings of the First Appellate Authority that thegoods manufactured by the Appellant are not gas based intermediate products; hemerely concluded that the product manufactured by the Appellant is not plastic - Asper C.B.E.C. Circular No.10/89 dated 10.02.1989 only certain categories of endproducts of polyurethane foam have been clarified to be classifiable under 39.22 to39.26; therefore there will be certain shapes of polyurethane foam which will fall under3909.80 as primary form of polyurethane foam - Once a material if considered to beplastic then it cannot be held that the finished product falling by the Appellantclassifiable under 39.22 to 39.26 will not be made of plastic - Notification No.33/99-C.Edoes not specify that plastic under Sl.No.13 of the Schedule to Notification No.33/99-C.E should be plastics of C.E.T.H 39.01 to 39.14 - Chapter Notes/Section Notes givenunder the Central Excise Tariff Act, 1985 cannot be made applicable to interpret anentry contained in an exemption notification unless such exemption notification refersto some tariff headings in the body of the notification - In the present case there is nospecification that plastic under Sl.No.13(IV) should fall under C.E.T.H 39.01 to 39.14;hence the same will also cover the plastic manufactured by the Appellant, who isaccordingly eligible to avail the exemption, as held by the Tribunal in the case ofKurlon Ltd. -vs.- Commissioner of Central Excise, Meerut-I, while interpreting similarentry in Notification No.50/2003-C.E. dated 10.06.2003. [Para 8]


Mega Exim Pvt Ltd Vs CCE (Dated: September 16, 2016)

CX - CENVAT credit on inputs have been denied to the appellants on the premise thatthe dealer M/s. S K Garg & Sons who has supplied the goods to the appellant is non-existent and that he has merely issued invoice but not the goods. Held: In the absenceof any investigation at the end of manufacturer/supplier or the transporter, the cenvatcredit cannot be denied to the appellants - Appeal allowed with consequential relief:CESTAT [para 7]


CCE & ST Vs Tan Singh Chauhan (Dated: October 21, 2016)

ST - Supreme Court in the case of CCE Kerala Vs. Larsen & Toubro Ltd. - 2015-TIOL-187-SC-ST has laid down that Works contract were not taxable prior to 1.6.2007 -

Settling of the issue at the apex Court level itself reflects upon the fact that the issuewas not clear and attained finality only recently – In view of the fact that the Appellantdid not contest the service tax liability and deposited the same even prior to issuanceof the SCN, invocation of Section 80 of the Finance Act, 1994 by Commissioner to setaside penalty was justified – Revenue appeal rejected: CESTAT [para 4]


BCPL Conductors Pvt Ltd Vs CCE & ST (Dated: October 28, 2016)

CX - Calculation for quantification of CENVAT credit to be reversed by the principalmanufacturer has been worked out on some percentage basis with no crossexamination of manufacturing process at the job worker's end and the emergence ofoff-cuts and other waste products - off-cuts and scrap cannot be considered as "inputsas such" at the job worker's end – There is no allegation of diversion of inputs orunaccounted clearance of the same either at the BHEL side or at the end of the jobwork- manufacturer - demand set aside and appeals allowed: CESTAT [para 6]



CCE Vs Man Structural Ltd (Dated: September 29, 2016)

Central Excise - Duty default - The assessee defaulted in payment of duty during acertain period and the department passed orders under Rule 8(3A) debarring theassessee from using Cenvat credit for making payment of excise duty for a period oftwo months - However, the assessee utilised the accumulated Cenvat credit for makingpayment of excise duty during this period of two months - The department initiatedproceedings by which the duty paid using the Cenvat credit were ordered to be debitedto PLA; the assessee paid a part of the amount demanded, and agitated this orderdirecting them to pay the amount from PLA - the matter reached the CESTAT, whoheld that even during the two months period wherein the department has taken a viewthat the assessee was debarred from using Cenvat credit making payment of exciseduty, they will be entitled to the same, set aside the orders of the departmentalauthorities demanding the payment of duty from PLA, and directed the assessee to payinterest for the period of two months - Consequently, the assessee filed a refund claimwith the Assistant Commissioner seeking refund of the part-payment in cash earlier -although the Assistant Commissioner expressed the view that the refund will beallowable on merits, he proceeded to reject the refund claim on the ground of time-bar, which is now pending before the High Court - Revenue, chose to appeal againstthe observation of the Assistant Commissioner that the refund will be eligible on meritwhich was rejected by the Commissioner (Appeals); now agitated herein.

Held: The issue regarding the default by the assessee in payment of excise duty duringa certain period has been settled in favour of the assessee that they will be entitled touse Cenvat credit during the period of two months following the default during whichthe Revenue had passed orders debarring them from using this Cenvat credit -Consequently, refund claim stands filed before the Assistant Commissioner has beenheld admissible on merit by the Tribunal - The present position of the dispute is that itis pending before the High Court of Rajasthan on the question whether the assesseewill be entitled to get the refund which stands rejected on limitation - Under thecircumstances, the present appeal before the Tribunal is infructuous. [Para 6, 7]


Mondelez India Foods Pvt Ltd Vs CCE & ST (Dated: October 25, 2016)

CX - Waste generated in the category of ‘floor waste/floor spillage' has been destroyedin the course of normal manufacturing process and which is everyday occurrence –matter settled by various higher judicial fora - CENVAT credit gone into the rawmaterial of the waste cannot be denied – Appeal allowed with consequential relief:

CESTAT [para 7]


CCE Vs NRB Bearings Ltd (Dated: November 1, 2016)

CX - Respondent's factory was visited by the officers and they found that therespondent has discharged less excise duty on the semi-finished goods transferred totheir sister concern by not adopting the provisions of Valuation Rules during the period1.7.2000 to 30.9.2003 - Respondent has discharged the entire amount of CentralExcise duty with interest on being pointed out - Commissioner(A) applying theprovisions of Section 11A(2B) and setting aside the penalty imposed u/s 11AC of CEA,1944 - Revenue in appeal. Held: On holistic reading of section 11A(2B) of CEA, 1944, itindicates that no show-cause notice needs to be issued to an assessee if he dischargesthe duty liability and interest thereof on being pointed out or on his own ascertainment- therefore, there is no reason to visit the respondent with any penalty - impugnedorder does not suffer from any infirmity, hence Revenue appeal rejected: CESTAT[para 6, 7]


Laxmi Electrovision Pvt Ltd Vs CCE (Dated: July 27, 2016)

Central Excise - Recovery of dues - the period involved in this case is from 10/08/2002to 3/2/2003 - when shortages were detected Mrs. Shashi Malik was the sole proprietorof M/s. Laxmi Electronics upto 1/4/2004 - Between 1/4/2004 to 9/7/2006 appellantfirm worked as a partnership with Mrs. Shashi Malik & Mr. Abhishek Malik as thepartners - Beyond 9/7/2006, appellant firm was registered as a company under thecompanies Act, 1956 and has taken over the partnership concern Appellant viewedthat the offence was committed when the unit was existing as a proprietorship anddemand if any can be raised only against the proprietor Mrs. Shashi Malik and no showcause notice can be issued to the present appellant - Per contra, Revenue viewed thatShow Cause Notice demanding duty from the appellant was issued on 7/6/2007 whenamended provisions of Section 11 of the Central Excise Act, 1944 were existing; thatthe proviso to Section 11 (2) of the Central Excise Act, 1944 was effective from10/9/2004 and any duty/sum recoverable from the predecessor can be recovered fromthe transferee i.e. the present appellant.

Held: Appellant has not contested the issue on merits when first appellate authorityupheld the order of the Adjudicating authority on merits - as per assignment ofBusiness agreement, entered between M/s. Laxmi Electronics (Partnership concern)and M/s. Laxmi Electrovision Private Limited (the present appellant), the entirebusiness of M/s. Laxmi Electrovision was taken over by the appellant includingliabilities - all the registrations, licenses of the earlier manufacturers, includingmachinery stand transferred to the present appellant - This transfer will also includetransfer of registration under Central Excise law given to the predecessors and clause[2] on para 3 of the agreement further talk of all goodwill, licences, registrations,name and connections of the business also being transferred to the present appellant(The Assignee) - In view of the above facts present appellant cannot argue that anyoffence committed by their predecessors cannot be a charge on them [Para 4, 4.1, 4.2,4.3]

If Central Excise registration was asked for cancellation by the predecessors ofappellant then only the show cause notice was required to be issued to thepredecessors for a pending investigation otherwise registration cannot be cancelled -The Central Excise duty is payable on the act of manufacturer and not on a particularperson; Liability gets fixed on a person who takes responsibility to obtain central exciselicence/Registration - In the present case there is no evidence on record that a newCentral Excise licence/Registration was obtained by the present appellant; contrarilytransfer of licence/Registrations to the successor are also transferred which will legallymean the responsibilities/liabilities cast under Central Excise licence/Registration alsogets transferred to the present appellant - Show Cause Notice was issued within 5

years from the disputed period and is not time barred as it is a case of clandestineremoval; appellant does not have any merits [Para 4.4, 5]


Sun Pharma Medications Pvt Ltd Vs CCE & ST (Dated: November 9, 2016)

CX – Alleging that since the input services viz. security service, general insuranceservice, consultancy engineering services were received at their Sikkim unit and haveno nexus with manufacturing at their Dadra unit, and, therefore, credit is notadmissible, demand issued and confirmed. Held: During the relevant time, in rule 7 ofCCR, 2004, it was not a condition precedent to avail credit on the basis of invoicesissued by the input service distributor, to receive and utilize the service, where theactivity of manufacture took place – there is no reason not to follow the KarnatakaHigh Court decision in ECOF Industries Pvt Ltd - 2011-TIOL-770-HC-KAR-ST -impugned order set aside and appeal allowed with consequential relief: CESTAT [para7, 8]


Mohan Helmet Pvt Ltd Vs CCE (Dated: August 12, 2016)

Central Excise - Restoration of Appeal - vide Stay Order No. 792-794/2008 dated06.08.2008 the applicants were directed to make pre deposit of Rs. 65 Lacs which waschallenged before the High Court, who dismissed their petition - the applicantsapproached the Supreme Court who affirmed the order of this Tribunal and extendedthe time to deposit the amount - The applicants did not make the pre deposit, but filedan application for modification of the stay order dated 06.08.2008, which was rejectedalong with the appeals for non compliance of the provisions of section 35F of theCentral Excise Act, 1944 - thereafter, the applicants made the pre deposit of Rs. 65lacs and filed an application for restoration of appeals, which was dismissedsuccessively up to Apex Court - Therefore, the applicants paid the whole amount ofduty in dispute and thereafter, filed these applications for restoration of appeals.

Held: Apex Court vide its order dated 12.12.2008 has directed the applicants to makethe pre deposit within the period of 10 weeks - Admittedly, the applicants have notcomplied; and in the absence of any extension of time by the Apex Court, the Tribunalhas dismissed the appeals filed by the applicants for non-compliance of provisions ofSection 35F of the Central Excise Act, 1944 - Thereafter, application filed before theApex Court who again the dismissed their petition - Thereafter, the applicants havemade the pre deposit of duty in dispute but for not paid interest and penalties as perthe impugned order; hence the ratio of the T.N. Mulaniruling is not applicableinasmuch as in that case, the applicants have made deposited of the whole amount indispute while in the instant case, interest and penalty has not been deposited,therefore, provisions of Section 35F of the Central Excise Act, 1944 have not compliedwith - no merit in the applications for restoration of appeals [Para 4]


CCE Vs G S Pharmabutor Pvt Ltd (Dated: September 23, 2016)

Central Excise - Manufacture of pharmaceutical preparations -Whether or not Physiciansamples to be valued under Rule 4 of the Central Excise Valuation (Determination ofPrice of Excisable Goods) Rules, 2000 -Held, physician's samples have to be assessedbased on transaction value in terms of Section 4 (1)(a) of the CE Act, 1944 - Inassessee's own case CESTAT followed transaction value basis, following same Revenueappeal was dismissed. (Para 4)


Addi Alloys Pvt Ltd Vs CCE (Dated: August 30, 2016)

Central Excise - CENVAT Credit - appellant procured goods from one M/s S.K.Garg&Sons who is a first stage dealer who got registered with the department w.e.f.05.12.2003 - An investigation at the premises of M/s S.K. Garg & Sons revealed thatthe premises were locked and godown is also non-existent - Enquiries were made withthe landlord who stated that M/s S.K. Garg & Sons has vacated the premises in 2003itself and thereafter he never let out the premises to anybody - Based on theinvestigation the registration of M/s S.K. Garg & Sons was cancelled on 21.07.2008retrospectively - the appellant procured goods from M/s S.K. Garg & Sons and availedcenvat credit on the same -Revenue viewed that the appellant have received theinvoices but not the goods - The matter was adjudicated, cenvat credit was denied,consequently duty was demanded alongwith interest and equal amount of penalty, nowagitated herein.

Held: No investigation conducted at the end of manufacturer/supplier or thetransporter to reveal the truth whether manufacturer/supplier has supplied the goodsin question to M/s S.K. Garg & Sons or the transporter has transported the goods tothe premises of the appellants which is vital evidence to reveal the truth - M/s S.K.Garg & Sons was registered dealer during the impugned period and all the ER-1returns were filed which were accepted by the department - in the absence of anycorroborative evidence to show that the appellant have not received the goods, itcannot be alleged that they have received the invoices and not the goods - Underidentical circumstances in the Dhawan Steel Industries case, the Tribunal held interalia that in the absence of any investigation at the end of manufacturer/supplier or thetransporter, the cenvat credit cannot be denied to the appellant- Judicial viewconsistent in the Sadashiv Castings and Jain Steel Tubes cases - impugned order setaside with consequential relief if any. [Para 6, 7]


Jubilant Life Sciences Ltd Vs CCE & ST (Dated: September 5, 2016)

CX - Allegation of clandestine removal - In the first round of proceedings, theCommissioner(A) remanded the matter back to the adjudicating authority with thedirection to decide the case within three months, after providing the appellants therelevant RG 23 part-I register and RG-1 register and thereafter affording anopportunity to the appellants to present their case - In denovo adjudication, thedemand was again confirmed without supplying the relied upon documents - appeal toCESTAT.

Held: In the second round too, order has been passed in violation of the principles ofnatural Justice, as well as in gross violation of the orders and directions of theCommissioner (Appeals), therefore, the same is not sustainable - appellant assesseewill be entitled to consequential benefits, in accordance with law - Appeal allowed:CESTAT [para 5 to 7]


Himgiri Plastics Vs CCE (Dated: October 21, 2016)

CX - SSI exemption Notfn. 8/2003-CE - Clubbing of clearances - Both the units HP andHPC do not have separate arrangement for keeping raw materials and finished goodsand these are stored in common premises only - in many cases raw material likesoapstone, power was purchased by HP and then used by HPC and there is noaccounting or documentation for proper receipt and transfer for a consideration ofthese items - evidences in the form of loan transaction between the partners of thefirms common procurement of raw material, intermixed documentation of sale of finalproducts, clearly indicate that there is complete common administration and financial

control of the two firms - Day-to-day affairs of HPC are managed by the partners ofthe HP - both the firms belong to the same family i.e. one firm owned by husbands aspartners another firm is owned by wives as partners - In such situation, whenoverwhelming common interest is involved, it is not necessary to point out individualinstance of financial benefit to one number or other of the same family - Further, it isadmitted by the appellants that "T-P-T" is a brand name which both of them have beenusing in their finished goods - brand name apparently cannot belong to two differententities - It is not required that the brand name should be a registered one for denialof SSI exemption in terms of Notification No. 8/2003-CE . - in the absence ofcategorical evidence supported by documents that exports were made throughmerchant exports, the claim of the appellant cannot be considered - no infirmity in thefindings of the original authority with reference to eligibility of SSI exemption, seizureand penalties - Appeals dismissed: CESTAT [para 5 to 10]


CCE Vs Hindustan Copper Ltd (Dated: October 28, 2016)

CX - Respondent assessee is engaged in the manufacture of Copper Cathode and wereavailing cenvat credit on inputs and capital goods in terms of CCR, 2004 - They weresending copper concentrate, Cathode (secondary), Anode Scrap etc. for conversioninto copper to M/s SWIL Limited, Bharuch on job work basis - Department entertaineda view that the respondents-assessee are violating the provisions of CCR, 2004 as theyare not paying amount equal to cenvat credit attributable to the inputs which were notreceived back from the job worker - duty demand of Rs. 47,08,097/- confirmed butdropped by Commissioner (Appeals) - Revenue in appeal before CESTAT. Held:Commissioner(A) in his findings has recorded that from the SCN it is not clear as tohow much quantity was retained by the job worker and what was amount of cenvatcredit involved in the inputs retained; that the demand was worked out on the amountdeducted by the appellant from the Tolling charges of job worker, which is not theamount of cenvat credit attributed to the inputs retained by the appellant - In view ofthe clear finding by Commissioner(A) that the department did not identify which typeof inputs were retained by the job worker, it is not at all tenable to invoke CCR, 2004to demand and recover certain amount of credit - proceedings against the respondentare devoid of merit as well as hit by time bar - Revenue appeal dismissed: CESTAT[para 4, 5]


Kohinoor Reclamations Vs CCE (Dated: July 20, 2016)

CX - Rebate - It is not disputed that the appellants have exported goods after paymentof duty and availing the benefit of area based exemption under Notification No.01/2010-CE dated 06.02.2010 - Rebate has been held inadmissible on the ground thatin notification 19/2004-CE (NT) , condition 2(h), it is laid down that in case of export ofgoods manufactured by a manufacturer availing area based exemption notificationsspecified therein, the rebate shall not be admissible - appeal to CESTAT.

Held: We note that the Notification No. 01/2010 dated 06.02.2010 has not beenspecified in the condition 2(h) - Since this notification has not been specified in thecondition, the same cannot be read into it to deny the rebate claim - working of thenotification should be read plainly as an ordinary man would read - Words which arenot there cannot be read into the notification - Inasmuch as the condition 2(h) has notmade rebate inadmissible if the manufacturer is operating under Notification No.01/2010-CE, the lower authorities have wrongly denied the payment of rebate - Ordersset aside and appeals allowed with consequential relief: CESTAT [para 6, 7]


Chetna Polytex Pvt Ltd Vs CCE (Dated: September 28, 2016)

Central Excise - CENVAT Credit - appellant is a manufacturer of electrical insulationtape, medicated surgical strips, medical surgical tape, etc., some of which are dutiableand some exempt - they availed the benefit of cenvat credit on inputs as well as inputservices - in respect of inputs, they maintained separate accounts for those which areused in the manufacture dutiable as well as exempted products; however, in respect ofinput services, they did not maintain separate accounts - Revenue viewed that theywill be required to pay back credit to the extent of 10% of the value of the exemptedgoods as per Rule 6(3) of Cenvat Credit Rules, 2004, and they reversed the entirecredit availed on input services - the Department issued Show Cause Noticedemanding reversal at the rate of 10% of the value of the exempted products clearedby the appellant during the period 2005-06 and 2006-07 - The original authority in hisorder dated 04.06.2010 dropped the demand since the assessee has deposited theentire credit amount along with interest; but the Department took up the matter inappeal to the Commissioner (Appeals), who reversed the order of the original authorityand upheld the demand proposed in the Show Cause Notice, culminating in the instantappeal.

Held: Rule 6(3) of CCR 2004 requires that if separate accounts are not maintained forthe inputs / input services used for manufacture of dutiable as well as exemptedproducts, the manufacturer should reverse an amount at the rate of 10% of the valueof the exempted products - However, the amendment in Rule 6 vide NotificationNo.23/2004-CE (NT), dated 10.09.2004 has given an option for proportionate reversal,instead of reversal of 10% of the value of the exempted products; and this Notificationhas also been given retrospective effect for the period from 10.09.2004 to 31.03.2008,covering the material period in the instant case - It is also on record that the entireinput service credit stands reversed along with interest payable thereon - Under thecircumstances, the demand does not survive; the impugned order is set aside, theorder passed by the original authority setting aside the demand is upheld. [Para 6]


JK Cement Works Vs CCE (Dated: October 28, 2016)

CX - Issue is regarding eligibility for cenvat credit of tax paid on input services,namely, insurance services, courier services and telephone services - Revenue felt thatthe appellants are not eligible for these credits as they were not specifically includedunder the category of "activities relating to business" - Revenue draws support fromthe amending Notification No. 3/2011-CE (NT) effective from 01.04.2011 whichexcluded expression "activities relating to business" and the illustrative list of servicesmade therein - It is the claim of Revenue that the amendment was only clarificatoryand should be made applicable all along for the past also - credit denied, therefore,appeal to CESTAT.

Held: Conclusion of original authority that the exclusion later made in the definition ofinput services u/r 2(l) of CCR, 2004 should be read as a clarificatory amendment isdevoid of merit - credit on impugned services is admissible as held in the decisions ofFinolex Cables Ltd. - 2009-TIOL-122-CESTAT-MUM, Lupin Ltd. - 2012-TIOL-2099-CESTAT-MUM and Ultratech Cement - 2010-TIOL-745-HC-MUM-ST - impugned order isnot legally sustainable, hence set aside and appeals are allowed: CESTAT [para 3, 4]


Essar Oil Ltd Vs CCE, C & ST (Dated: October 18, 2016)

Central Excise - Whether the appellant is required to reverse the CENVAT credit availedon inputs and input services attributable to LPG cleared by availing exemptionunder Notification No. 4/2006-CE - contention of appellant rests on the argument thatRule 6 (3) of CCR, 2004, applies only to goods which are absolutely exempted frompayment of duty and not to those goods, which are exempted on fulfilment certainconditions, like the present Notification No. 4/2006.

Held: The contention of the appellant cannot be acceptable as there is a specific

mention of reversal of CENVAT credit attributable to inputs and input services underRule 6 (3)(a)(viii) of CCR, 2004 where the Appellants fail to maintain separate records- Reading the definition of exempted goods, it cannot be said that LPG exempted orchargeable to NIL rate of duty are not required to reverse proportionate CENVAT crediton the inputs attributable to the exempted product - Hence, no reason to interfere withthe order of Commissioner (A) - impugned order is upheld - (Para 5)


CC, CE & ST Vs Alliance Minerals Pvt Ltd (Dated: July 28, 2016)

Central Excise - 100% EOU - Polished Granite slab manufacture - Imported Epoxyresins used in the manufacture of granite slabs out of wholly indigenously procuredgranite blocks - Have to be reckoned as "consumables" and not to be treated as "rawmaterial" - Benefit of concessional rate of duty under Notification No.23/2003-CEcannot be denied.

The main thrust of the appeal preferred by the Department is that epoxy resin shouldnot be treated as consumables but as a raw material which forms part of the finalproduct and hence the granite slabs cleared in DTA cannot be considered as goodsproduced or manufactured in 100% EOU wholly from raw materials produced ormanufactured in India (imported). From the ruling of the Apex Court in BallarpurIndustries case, it is evident that to be considered as a raw material the ingredientshould be so essential for the chemical processes culminating in the emergence of thedesired end-product, that having regard to its importance in and indispensability forthe process, it could be said that its very consumption on burning-up is its quality andvalue as raw-material. In the instant case, the imported Epoxy resin only adds glossand smoothness and fills up on the surface orifices. It is not disputed that the graniteslabs is complete and ready for its intended use even without the use of Epoxy resinand that the latter only facilitates better visual appearance. In the circumstances, itmust be held that the said Epoxy resin cannot be considered as raw materials in thefacts of the instant case.

The impugned order of the Commissioner appealed against thus does not call for anyinterference. In consequence, the appeal filed by the Department do not have anymerit, and hence is dismissed (Para 6, 7, 10, 11)


Maruti Suzuki India Ltd Vs CCE (Dated: October 4, 2016)

CX - Valuation - Section 4 of the CEA, 1944 - Advertisement expenses incurred by thedealers and promotional materials sold to dealers are not includible in the assessablevalue as held in appellant's own case by Tribunal reported as 2016-TIOL-2217-CESTAT-CHD - impugned order is set aside and appeal allowed with consequentialrelief: CESTAT [para 2, 3]


New City Of Bombay Mfg Mills Vs CCE (Dated: November 1, 2016)

CX - Appellant had cleared the goods by availing benefit of Notification No. 30/2004-CEand reversed the CENVAT Credit attributable to the inputs consumed for manufacturingof the final goods to which this notification was availed - case of Revenue is thatbenefit of notification would not be available as credit has been availed. Held: Reversalof credit at the time of clearance of finished goods tantamount to non-availment ofCENVAT Credit of the inputs and hence benefit of Notification No. 30/2004-CE isavailable - impugned order is not sustainable, hence set aside and appeal is allowed:CESTAT [para 5, 6]


Neo Corp International Ltd Vs CCE (Dated: November 1, 2016)

CX - Service Tax paid on Construction services availed as CENVAT credit in respect ofconstruction of building and civil structure for a separate division of the assessee bythe name of Tech Textile, 100% EOU - Unit was subsequently destroyed in fire andappellant claimed damages from the insurance company inclusive of the tax - Creditdenied, hence appeal before Tribunal. Held: Fact that the appellant's account and the100% units accounts are being maintained under a common balance sheet would notchange the scenario inasmuch as the input service definition includes those inputswhich are used by the manufacturer in or in relation to the manufacturer and inrelation to their own final product - The 100% unit was a separately registered unit,there is a separate set of procedure required to be followed by a 100% EOU, hence nomerit in claim of appellant regarding CENVAT credit; however, credit availed in year2010 but SCN issued in 2013 - Commissioner(A) observing that that the fact that thecredit availed related to their 100% EOU was not declared by the appellant and cameto the knowledge of the department at the time of scrutiny of the ER-1 filed by them -as ER-1 is required to be filed on quarterly basis, even the issuance of show causenotice in 2013 is not justified - however, since facts are not clear, matter remanded toadjudicating authority - appeal disposed of: CESTAT [para 6, 7, 8]


Gei Industrial System Ltd Vs CCE (Dated: October 21, 2016)

CX - Rule 8(3A) of CER, 2002 - Default in payment of duty - Rule 8(3A) to the extentrequiring the payment of duty without utilizing the cenvat credit during the period ofdefault is held to be unconstitutional by several High Courts - Supreme Court in thecase of Jayaswal Neco Ltd. - 2015-TIOL-176-SC-CX interpreting the terms "paid exciseduty for each consignment by debit to Account Current" held that it could not be saidto be the only mode of payment of duty during this period - in the present case, theappellants have fully discharged the default amount, by 16.06.2006 in cash, withapplicable interest for the delayed payment - In such situation to hold that theclearances subsequent to March, 2006 as non-duty paid clearance only on the groundthat the cenvat credit has been used for payment of such liability, is not legallysustainable - denial of CENVAT credit, imposition of equivalent penalty and alsopenalty u/r 25 of CER cannot be legally sustained, hence set aside - appeal allowed:CESTAT [para 7, 8]


CCE Vs Hindustan Zinc Ltd (Dated: September 27, 2016)

Central Excise -Cenvat Credit - Reduced payment of invoice value - Proportionatecredit reduction - Scope-Service provider paid service tax on entire invoice value -Short payment of the invoice value by recipient due to retention of amount vis-a-visperformance guarantee - Whether in view of Rule 4 (7) of the Cenvat Credit Rules,Cenvat credit can be reduced proportionately oris eligible for full credit - Held, credit offull service tax paid by a service provider in respect of service provided to servicerecipienthas to be allowed notwithstanding reduced payment of invoice value, so longas the service tax paid by the service provider has not changed - Revenue appealbeing without merit is rejected. (Para 6, 7)


Hindalco Industries Ltd Vs CCE (Dated: July 8, 2016)

CX - CENVAT - Contract for hiring of buses and invoices raised does not leave anyroom for doubt that the fixed consideration is for a specified distance to be coveredevery month for transportation of employees to and from the factory - No evidence hasbeen furnished on behalf of Revenue that the buses were used for any other purpose -'Rent-a-cab-service' availed by hiring of buses for transportation of employees is an

Input service - credit is admissible of ST paid - Order set aside and appeal allowed:CESTAT [para 5, 7, 8]


Natural Sugar And Allied Industries Ltd Vs CCE (Dated: October 26, 2016)

CX - CENVAT - Bio-Compost is manufactured out of the waste such as press mudgenerated during the course of manufacture of dutiable goods i.e. sugar - Rule 6 ofCCR does not apply to the waste, scrap, byproducts, refuse etc. generated during thecourse of manufacture of dutiable final product - Once the waste generated does notattract Rule 6, subsequent manufacture of exempted goods viz. Bio-compost will alsonot attract the provisions of Rule 6 of CCR, 2004 - no cause to pay 5% of the value ofthe Bio-Compost - impugned order set aside and appeal allowed: CESTAT [para 4]


CCE Vs Nectar Lifesciences Ltd (Dated: October 25, 2016)

CX - User test is to be applied for structural items used in the fabrication of supportstructures - Respondent has explained the use of steel items used for pre-fabricatedbuilding and building structures - Therefore, by applying the user test, the respondentis entitled to avail the cenvat credit up to the period 07.07.2009 - As the issue ofavailment of credit was in dispute during the period, therefore, no penalty is imposablein the facts and circumstances of the case – Revenue appeal dismissed: CESTAT [para6, 7]


Shalaks Chemicals Vs CCE (Dated: October 28, 2016)

CX - Classification - Olemessa Baby Massage Oil (OBM Oil) - The earlier order-in-appeal which stands affirmed by the Tribunal specifically held that OBM Oil isclassifiable under heading 1508.90 - As such, the issue is no more res-integra and it isnot proper on the part of the Commissioner (Appeals) to attempt to by-pass the saiddecision of the Tribunal - even the attempted fresh examination of the fact has notbrought out factually, as to how the product can be classified under heading 3304 as apreparation for the care of skin - The massage oil by itself cannot be called as a oil forcare of skin - In the absence of any material change in the composition and use of theimpugned goods, the attempted change in the classification of the product despite ofrepeated proceedings in the past more than three decades, holding the classification infavour of the appellant's claim, is not legally tenable - impugned order set aside andappeal allowed: CESTAT [para 5]


Nectar Lifesciences Ltd Vs CCE (Dated: October 7, 2016)

CX - CENVAT - Credit availed on CAF, Jointing Sheet, Aluminium Coil, CR Strips, Plate,Chequered Plate, MS Angles, Bars, MS Channel, Sheets, Plate, Joist, HR Coil,Structures, Shape and sections, clamps, SS Rocks/Trays/Aluminium Sheets, Well glassand pre fabricated building under the Category of capital goods as per Rule 2(a)(A) ofCCR, 2004 credit on SS Sheets, SS Plates, Corrugated Steel Sheets, SS Coils, SSPlates, SS Channels, MS Beam, MS Angle, Sheet, Joist, Plate, Bars, HR Coil, Shape andsection under the category of inputs as per Rule 2(k) of CCR, 2004 - Credit denied onthe ground that these were used in the manufacture of structures, capital goods, parts,accessories and components of capital goods, used for joining pipes in the plants,welding etc.. - AA relying on the LB decision in Vandana Global Ltd - 2010-TIOL-624-CESTAT-DEL-LB - Commissioner(A) allowing credit on inputs used in fabrication ofstorage tanks holding that inputs used do not fall in the exclusion list of reviseddefinition of inputs but upholding the remaining portion of order - Both, assessee andRevenue before Tribunal. Held: User test is to be applied for structural items used for

fabrication of support structure and the same would be fall within the ambit of capitalgoods as contemplated under Rule 2(a) (A) of the CCR, 2004 - credit admissible - asthe period involved in the matter is prior to 07.07.2009, therefore, the amendeddefinition of input w.e.f. 07.07.2009 is not applicable to the facts of this case - creditrightly availed on inputs in question - assessee appeal allowed and Revenue appealdismissed: CESTAT [para 10, 12, 13]


Security Paper Mills Vs CC (Dated: October 4, 2016)

Central Excise - Security Paper used in printing of currency notes/security instrumentsof the Government of India-Denial of benefit of exemption under serial No.94 ofNotification No.4/2006-CE dated 1.3.2006on ground that paper in question did notbear water mark, security thread etc based on definition from internet sources -Unjustifiedin as much as the Notification did not define what is a Security Paper - Onlycondition mentioned in the Notification entitling benefit was that security paper mustbe cylinder mould vat made was fulfilled.

There is no definition of "security paper" in the said Notification. The impugned orderexamined the term "security paper" from various internet sources and arrived at theconclusion that without water mark and the security thread, the paper cannot be calledas security paper. The original authority misdirected himself in examining the issue.The fact is that the appellants are specifically mentioned in the Notification by nameand the security paper manufactured by them were cleared as per authorization givenby the Government authority to various Security Press, Bank Note Press listed in theNotification itself. There is no dispute regarding clearance of any other paper to anyother recipient in violation of stipulation in the Notification. The reliance of the originalauthority on the definition available in internet or any other sources to decide as towhat will constitute security paper is uncalled for. The only condition mentioned in theNotification is security paper should be cylinder mould vat made and no other conditionis prescribed. In such situation, denial of exemption on the ground that security papersupplied by the appellant as manufactured by the appellant is not of that category ascertain features as mentioned in the internet sources is not figuring there. In case theoriginal authority entertained certain doubts regarding correctness of claim by theappellant, the same should have been verified with expert opinion or by reference tothe Government authorities or recipient of those goods to find out security paper.Instead of that, the impugned order proceeded to deny the nature/scope of exemptionbased on certain unsubstantiated definition of the term. There is thus no justificationfor such interpretation. Accordingly, it must be held that the impugned orders are notsustainable and set aside the same. (Para 4)


HDFC Bank Ltd Vs CCE (Dated: October 26, 2016)

ST - Appellant had received the amount in convertible foreign exchange and servicesare provided to Western Union's clients for the amounts collected abroad anddispatched to Indian beneficiary - commission received by the appellant for transfer ofmoney to persons in India is sought to be taxed under BAS during the period 1.8.2005to 30.9.2008 - appeal to CESTAT. Held: Issue is no more res integra and is covered infavour of appellant by the ratio of the decisions in Paul Merchants Ltd. - 2012-TIOL-1877-CESTAT-DEL and Wall Street Finance Ltd. - 2014-TIOL-1958-CESTAT-MUM -Order set aside and appeal allowed with consequential relief: CESTAT [para 4, 5]


Hi Tech Fabrics Processors Vs CCE (Dated: October 31, 2016)

CX - Though the deemed credit benefit provided as per the above notification 6/2002-CE (NT) was withdrawn w.e.f. 01.04.2003 but no specific provision was made to

reverse the accumulated credit lying in balance as on 31.3.2003 - It is settled legalposition that if the CENVAT credit is availed with the authority of law and if there is noprovision for reversal thereof, the same cannot be denied or recovered - appealallowed: CESTAT [para 5]


Bhilwara Spinners Ltd Vs CCE (Dated: October 28, 2016)

CX - Original Authority categorically held that the amount of Rs. 2 crores is a pre-deposit amount, which was paid by the appellant at the investigation stage and thesame has been considered as pre-deposit specifically vide interim order passed by theTribunal - Appellants are entitled for interest for the period beyond three months fromthe date of favourable final order of the Tribunal dated 04/04/2001 till sanction of theamount to the appellant - Such interest is automatic and no separate claim ismandated for the same - impugned order is not legally sustainable with reference torejection of interest – order set aside and appeal allowed: CESTAT [para 4, 5]


Dhanuka Agritech Ltd Vs CCE (Dated: October 7, 2016)

CX - Appellant had inadvertently reversed the cenvat credit in respect of inputs used inwork in process alongwith the credit in respect of raw material in store at the time offire accident - Later on, they realized their mistake that reversal of credit on inputscontained in the WIP was incorrect and applied for refund - Revenue contention thatthe refund cannot be entertained u/s 11B is not correct in view of Larger Benchdecision in BDH Industries Ltd. vs. CCE - 2008-TIOL-1211-CESTAT-MUM-LB - further,the second issue whether the appellant was required to reverse the cenvat credit oninputs in process which was destroyed in fire is also no longer res-integra and it hasbeen held in various decisions that the credit on inputs in process need not be reversed- order of Commissioner(A) set aside and appeal allowed: CESTAT [para 6, 7]


Ultratech Cement Ltd Vs CC, CE & ST (Dated: May 4, 2016)

Central Excise - Sale on FOR basis - Cenvat credit - Admissibility - Outwardtransportation is an input service eligible for credit - Conditions precedent to availcredit admissibility as laid down in Board Circular No. 97/8/2007-ST dated 23.08.2007already satisfied - Cenvat credit of service tax paid on outward transportation on FORbasis - Allowed (Para 5, 6)


Andhra Cements Ltd Vs CC & CE (Dated: May 6, 2016)

Central Excise - OP cementsupplies meant for setting upof Mega Power Projectsagainst International Competitive Bidding (ICB) - Eligible for full duty exemption underthe Notification No.6/2006-CE dated 01.03.2006 as amended vide NotificationNo.46/2008-CE dated 14.08.2008 - Demand under Rule 6 of CENVAT Credit Rulesunsustainable

2016-TIOL-3157-CESTAT-BANG

BEML Ltd Vs CCE, C & ST (Dated: September 2, 2016)

Central Excise - Unutilized Cenvat credit - Penalty and Interest liability - CENVAT CreditRules 2004, Rule 14, 15 - Credit wrongly availed was reversed prior to its utilization -Penalty and interest imposed, unsustainable - Appeal allowed with consequential relief.(Para 3)


Bhor Industries Ltd Vs CCE (Dated: October 5, 2016)

CX - During lamination as well as foaming, side strips emerge, which are treated bythe appellant as waste and identified as "foam patti" and which are sold by weight towaste and scrap dealers - Sale price adopted is on the basis of rate per kg - case ofRevenue is that the said "foam patti" is classifiable under Heading 5903 as it is nothingbut damaged or sub-standard textile fabrics and duty is payable on the basis of metersand by applying the value of finished fabrics - demand confirmed by lower authorities,hence appeal to CESTAT.

Held: Lower authorities have totally misconstrued the entire issue and held that "foampatti" are nothing but chindies - There is no allegation in any of the SCNs that theproducts on which the demand of duty has been raised, need to be considered aschindies or otherwise - Since the impugned orders are traversing beyond theallegations made in the SCNs, on this ground itself, the impugned orders are liable tobe set aside - apex court had directed to determine whether 'foam patti' is classifiableas laminated textile fabrics or otherwise - Since the AA has held that this 'foam patti' ischindies, it would mean that the said products are not laminated textile fabrics - thedemands raised as chindies are not sustainable - even the Chemical Examiner has heldthat the sample is in the form of strips of non-uniform width (ranging from 6 mm to 1cm) and, therefore, it is very clear that these products cannot be classified as"laminated textile fabrics" - Order set aside and appeal allowed: CESTAT [para 7.1 to7.4]


Monarch Catalyst Pvt Ltd Vs CCE (Dated: October 21, 2016)

CX - Appellant have availed Cenvat Credit on the strength of invoices which are not intheir name but are in the name of other unit - Admittedly, there was nexus betweenUnit-I and Unit-II inasmuch as the Unit-II is their job working unit - There is noallegation that credit was not admissible - It is merely that the procedure which cameinto being in June, 2005 of registration as Input Service Distributor was not followed -Tribunal has repeatedly held that in case of procedural irregularity, the substantivebenefit should not be denied - credit admissible - appeal allowed with consequentialrelief: CESTAT [para 6]


Supreme Industry Vs CCE (Dated: October 24, 2016)

CX - Notification 6/2002-CE - Appellant fairly submits that Tribunal has in the case ofMGM Industries v. Commissioner of Central Excise, Pune - I - 2015-TIOL-1715-CESTAT-MUM held that Exemption will not be available to control panel for which theappellant claimed exemption as parts of X-Ray machine - cum-duty benefits as well asCENVAT being a factual issue needs to be verified by the original authority - matterremanded to original authority for re-quantification of the duty: CESTAT [para 4, 5]


Ahlcon Parenterals India Ltd Vs CCE (Dated: September 28, 2016)

Central Excise - CENVAT Credit - appellant is engaged in the manufacture ofpharmaceutical formulations and also function as loan licensee of M/s. Micro Lab Ltd. -They received certain inputs which were imported by M/s. Micro Lab Ltd., who filed theBills of Entry and availed cenvat credit on the basis of the same - Revenue viewed thatthese Bills of Entry wee not endorsed in the name of the appellant; that when thesewere sent back to the suppliers for endorsement, they were lost in transit; and that

the credit was inadmissible - recovery of cenvat credit adjudicated, upheld byCommissioner (Appeals), and agitated herein.

Held: The appellant could not produce the relevant Bills of Entry duly endorsed in theirfavour, and submitted that after loss of the original Bills of Entry, the supplier hasobtained certified photo copies of the Bills of Entry, but the same has not beenaccepted as proper documents for availing the cenvat credit by the lower authorities -the goods have been imported by M/s. Micro Labs Ltd. who filed the Bills of Entry andin normal course, if the goods have reached the factory of M/s. Micro Labs Ltd. theywould have been in a position to avail the cenvat credit - It is claimed that the goodscovered by the Bills of Entry stand supplied to the appellant for further manufacture,but this is not supported by any documentary evidence - The Customs attested copiesof Bills of Entry can only be considered as proof of import by M/s. Micro Lab Ltd., andthere is nothing on record to rule out the fact that no cenvat credit has been taken bythe original importer - Rule 9(2) of the Cenvat Credit Rules, 2004 vests discretion withthe original authority to allow the credit on being satisfied that such cenvat creditshave not been availed by the supplier or anyone else on the strength of these originalBills of Entry; hence matter is remanded to the original adjudicating authority with thedirection to carry out the verification under Rule 2 of the Cenvat Credit Rules, 2004and allow the credits after satisfying himself that the cenvat credit covered by the Billsof Entry have not been availed by M/s. Micro Lab Ltd. or any other person. [Para 5, 6,7]


CCE Vs Perfect Dyeing And Furnish Industries (Dated: September 1, 2016)

Central Excise - Clandestine Clearances - an investigation was conducted at end of therespondent; a diary was recovered and some stocks were found in excess - For stockseparate proceedings were initiated against the respondents but on the basis of diaryand the statement recorded of the partner of the respondent's firm, an offence casehas been made out against the respondent alleging clandestine removal of excisablegoods without payment of duty - the adjudicating authority confirmed the demand onaccount of clandestine removal of the goods along with interest and equivalent amountof penalty; however, Commissioner (Appeals) set aside the demands, now agitated byRevenue herein.

Held: The case of the Revenue revolves on the evidence namely diary maintained byShri Harbans Lal, Dyeing Master and during the course of search, the statement of thepartner of the respondent's firm was recorded, which has been retracted by therespondent within three days and in subsequent statement, he has never admitted thecontents of the diary - Moreover, the diary has not been admitted during the course ofinvestigation by Sh. Harbans Lal - at the time of adjudication, Shri Harbans Lal hasstated that although the diary has been maintained by him but the contents of theentries of the diary pertained to the respondent and of other parties also - Thatstatement has not been controverted by the Revenue with tangible evidence - therespondent supplied the name of the raw material suppliers but all the suppliers havebeen exonerated by the adjudicating authority, and no appeal has been filed againstthat finding by the Revenue - there is no evidence to prove clandestine removal of thegoods by the respondent as evidence of procurement of the raw material /transportation is absent - no infirmity in the impugned order and the same is upheld[Para 6]


CCE Vs Nipha Steels Ltd (Dated: September 5, 2016)

Central Excise - CENVAT Credit - Proposal for denial of credit adjudicated in theimpugned order, confirming denial / recovery of a portion of the quantum proposed -Party and department filed appeals on portions confirmed and dropped respectively -MA filed seeking condonation of delay on the ground that the departmental appeal

papers were misplaced, thereby cross objections were delayed.

Held: The reasons for seeking condonation is that appeal filed by the Revenue wasreceived in time but the same got misplaced; such reason explaining delay is notjustified and is rejected - It is observed from the case records that for other entries nostatement is available that appellant has not received inputs and the duty payingdocuments; no statement of the appellant is recorded and relied upon in the showcause notice to the effect that entire credit taken was without receipt of inputs - Thereis no evidence on record that there was any shortage of inputs in the stock of theappellant during relevant period; No calculation of irregularity taken creditentrywise/invoicewise has been made in the show cause notice - No justification in thecorrigendum to SCN was given by the department as to which credit entries aredeleted and which are included - In the absence of spelling out the allegation clearly inthe show cause notice appellant cannot be expected to explain his case - only anamount of Rs.2,47,844/- of credit can be held inadmissible to the appellant asadmitted; credit of Rs.2,47,844/- is thus correctly denied to the appellant - it iscorrectly argued by the appellant, in the light of relied upon case laws, that in remandproceedings penalty cannot be enhanced when department did not file any appealagainst the first adjudication order where a penalty of Rs.2.5 lakh was imposed - apenalty of Rs.1.00 lakh (one lakh) upon the appellant will meet the ends of justice inthe present proceedings, under Rule 173 Q (1) (bb) of the Central Excise Rules, 1944 -Appeal filed by the Party is allowed to that extent, and appeal of the Revenue isdismissed. [Para 5, 6, 7, 8]


Vakkal Impex (P) Ltd Vs CCE (Dated: August 8, 2016)

Central Excise - Manufacture of aluminum ingots - Recovery of irregularly availedexcess CENVAT credit on inputs received from 100% EOU as well as credit availed onSpecial Additional Duty - Rule 3(7)(a) of CC Rules, 2004 r/w Notification No.23/2003-CE envisages that a formula was fixed for taking credit on goods received from100%EOU and it is restricted to 50% of the actual amount of duty paid on the inputs -Evidence suggest that benefit of Notification No. 23/2003-CE had not been availed -Demand hence is unsustainable. (Para 3)

Documents

CESTAT RULING Shriram Wire Pvt Ltd Vs CCE (D ated ...€¦ · Devi Iron And Power Ltd Vs CCE ( Dated: September 29, 2016) CX - Appellant engaged in the manufacture of sponge iron