cestat ruling (central excise) - taxindiaonline.com€¦ · cestat ruling (central excise)...

CESTAT RULING (CENTRAL EXCISE)

2013-TIOL-1072-CESTAT-AHM-LB

M/s Union Quality Plastic Ltd Vs CCE & ST (Dated: February 18, 2013)

Extended period of limitation can be legitimately invoked even if Revenue has knowledge of suppression: the issue is no longer res- integra in view of the decision of the jurisdictional, High Court of Gujarat in Commissioner of Central Excise, Surat -I Vs. Neminath Fabrics Pvt Ltd reported in ( 2011-TIOL-10-HC-AHM-CX. ) . The High Court ruled that whenever there is non-levy or short levy of duty with an intention to evade payment of duty, or any of the circumstances enumerated in the Proviso to Section 11A ( i ) of the Central Excise Act, 1944; such suppression or willful omission is either admitted or demonstrated, invocation of the extended period of limitation would be justified; and that the proviso cannot interpreted to mean that since Revenue has knowledge of suppression, the extended period of limitation cannot be legitimately invoked.

2013-TIOL-1071-CESTAT-BANG

CCE Vs M/s Dr Reddy's Laboratories Ltd (Dated: February 22, 2013)

Central Excise - CENVAT Credit - Input Services - rent-a-cab service and air travel agent's service is admissible; sponsorship service and renting of immovable property service - matter remanded.

2013-TIOL-1066-CESTAT-MAD

Southern Boilers & Equipments Pvt Ltd Vs CCE (Dated: January 1, 2013)

Central Excise - Stay - Extension of - Since the interim order of Tribunal only granted waiver of pre -deposit, but not stay of recovery, the question of extension of stay does not arise.

Assessee's appeal in High Court against the Tribunal order of direction to pre -deposit Rs 5 lakhs was dismissed as withdrawn - The order of CESTAT gets revived and the appellant is directed to pre -deposit Rs 5 lakhs.


M/s Titan Industries Ltd Vs CCE (Dated: February 21, 2013)

Central Excise – Stay/Dispensation of pre -deposit - Brand name – Jewellery – Demand of duty by denying exemption under Notification No 5/2006 on the ground that alphabet 'I' or 'Q' embossed on the jewellery would amount to use of Brand name – Pre -deposit of Rs 7 crores ordered.


M/s Campco Chocolate Factory Vs CCE (Dated: March 4, 2013)

Central Excise - Valuation - Job work for a principal manufacturer who supplies raw materials - Rule 10A of Valuation Rules not applicable - the case of Advance Surfactants India Ltd Vs. Commissioner of C. Ex., - 2011-TIOL-757-CESTAT-BANG , the question had arisen before this Bench as to whether the above provisions could be applied to the goods manufactured by the said party as job-worker for the principal manufacturer who supplied the raw materials. This Bench held in favour of the assessee by ruling out the applicability of the above provisions. It was held that the job-worker need pay duty on the basis of Ujagar Prints formula. Civil appeals filed against the said decision of this Bench were dismissed by the apex court observing that no substantial question of law arose for its consideration (2013-TIOL-07-SC-CX ).

2013-TIOL-1061-CESTAT-AHM-LB

CCE & CC Vs M/s Siddharth Petro Products Ltd (Dated: June 18, 2013)

Central Excise - Appeals - Commissioner directed by Board to appeal to the Tribunal - Commissioner authorizes a Superintendent to file the appeal. Appeal signed by Superintendent not valid - Appeal Dismissed.

2013-TIOL-1057-CESTAT-MUM

Reliance Industries Ltd Vs CCE (Dated: June 19, 2013)

CENVAT Credit - Appellant availing CENVAT credit on MS Angles, MS Flat bar, MS sheet/plate, beam/column, structural fleet fabricated items etc. - case of the Revenue that these are not specified goods and hence credit cannot be availed - A query was raised by LTU on 27/05/2009 regarding the CENVAT credit availed on structural items and the same was replied by appellant and duly acknowledged on 19/06/2009 - from the above it is clear that availment of credit was in the knowledge of the department on 19/06/2009 itself - in such a scenario issuing SCN on 22/10/2010 invoking extended period of limitation is not legal and proper as there is no fraud or mis -representation of facts - also availment of CENVAT on these items was in dispute inasmuch as the Bombay HC had in case of Ambuja Cements held that the issue is debatable and granted a stay - therefore SCNs were not required to be issued invoking the extended period of limitation - Appeal succeeds on limitation itself - order set aside and appeals allowed with consequential relief: CESTAT [paras 7 & 8]


M/s Perfetti Vanmelle India Pvt Ltd Vs CCE (Dated: February 6, 2013)

Central Excise - Stay/Dispensation of pre-deposit - CENVAT Credit on outdoor catering service - Prima facie case for waiver of pre-deposit in view of the decision of High Court in case of Ultratech Cement Ltd.

2013-TIOL-1048-CESTAT-DEL

CCE Vs M/s Abir Steel Rolling Mills (Dated: June 6, 2013)

Central Excise - When the main assessee pays duty with interest and 25% penalty within thirty days of SCN, no penalty proceedings against other notices: The point of dispute is as to when the Show Cause Notice issued to the manufacturer/assessee for demand of duty along with interest and imposition of penalty, also show causes other persons (co-noticees) like Directors or employees of the manufacturer/assessee company or other persons like Transporters or Customers who have dealt with the goods in respect of which either the duty liability had not been discharged or has been discharged only partly, for imposition of penalty under section 26 of the Central Excise Rules, whether the Show Cause Notice would also stand concluded in respect of the co-noticees as to the matter stated therein, when the manufacturer/assessee has paid the duty along with interest and 25% of duty on penalty within 30 days of the receipt of the Show Cause Notice.

Held: when the proceedings against the manufacturer/assessee stand concluded on payment of disputed amount of duty plus interest plus 25% of the duty as penalty, there would be no sense in continuing the proceedings for imposition of penalty under Rule 26 against other persons like traders who had purchased the goods, transporters who had transported the goods cleared by manufacturer/assessee, the Directors/employees of the manufacturer/assessee company.

Also see analysis of the Order 2013-TIOL-1047-CESTAT-MAD

S&S Power Switchgear Ltd Vs CCE (Dated: April 12, 2013)

Central Excise - Stay/Dispensation of pre-deposit - Classification - Isolator metallic base - Assessee classified under CETH 85.35 attracting rate of duty of 10% and revenue demanded duty at the rate of 20% by classifying under CETH 85.38 - No prima facie case made out by the appellant for waiver of pre -deposit - Rupees one crore ordered to be deposited.


M/s Sakthi Sugars Ltd Vs CCE (Dated: February 6, 2013)

Central Excise - Stay/Dispensation of pre-deposit - Demand of 10% under Rule 6(3) of the CENVAT Credit Rules, 2004 on bagasse generated in the process of manufacture of sugar - Prima facie case made out for waiver of pre-deposit in view of decided case laws on identical issue - Pre -deposit waived.

2013-TIOL-1040-CESTAT-AHM

M/s Janak Raj Gupta & Co Ltd Vs CCE (Dated: April 11, 2013)

CENTRAL EXCISE - Stay/Dispensation of pre-deposit - Duty on waste and scrap of Plant & machinery and other items purchased through tender - Appellant a purchaser in auction - Unit wound up and plant and machinery and items lying in the factory premises sold by Official Liquidator - Invoices indicate appellant had dismantled the machinery by tearing them and invoiced as scrap and waste - Question of duty liability on the dismantled scrap may not arise - Appellant conceded that there is clearance of cenvat availed semi finished goods - Eligibility for cenvat credit of the capital goods

purchased needs to be gone into detail - Issue needs deeper consideration - Pre -deposit of Rs. 5 lakhs ordered.


M/s Bharat Petroleum Corporation Ltd Vs CCE (Dated: April 22, 2013)

CE - Appellant is a PSU - Appeal dismissed earlier on the ground that clearance from the Committee on Dispute was not obtained, however liberty granted to approach for restoration of appeal in case they succeed in getting the clearance from CoD - later, applica tion for ROA was filed on 27.04.2011 citing the apex Court decision in ECIL Ltd. (2011-TIOL-18-SC-CX-LB) - since the Committee declined to grant clearance, Tribunal dismissed the appeal - another application filed for ROA. Held - no new facts has emerged after passing of the earlier order dated 03.10.2012 - if the contention of the appellant is considered, it would amount to review of own order and which is not permissible in law - Application for ROA dismissed: CESTAT [para 3]


M/s Banco Products (India) Ltd Vs CCE (Dated: May 20, 2013)

Central Excise - Stay/Dispensation of pre-deposit - CENVAT Credit of special additional duty paid on inputs received from 100% EOU - Rule 3(7) of the CENVAT Credit Rules, 2004 - Prima facie case made out for waiver of pre -deposit.


M/s Jyoti Sales Corporation Vs CCE (Dated: April 8, 2013)

CENTRAL EXCISE – Stay/Dispensation of pre-deposit – Classification of Par-boiling machine – Assessee's contention that Par-boiling machines are classifiable under 84.37 – Revenue's case that the same is classifiable under 84.19 - Varying decisions stand passed by the Tribunal with different Members - Classification disputes required to be solved on merits of the case and not on concessions made by either side – CBEC Circular dated 19.05.2010 clearly laid down that Par-boiling machines are classifiable under 84.37 - Subsequent order of the Commissioner dropping the demand also stand accepted as no review appeal filed against - Manufacturers of similar situate adopting classification under 84.37 - Pre-deposit waived and Stay petition allowe d.


M/s Mand Vally Minerals Ltd Vs CCE (Dated: April 12, 2013)

CENTRAL EXCISE - Classification of 'dry concrete mixture', loose or packed - Assessee classified the product under heading 3824.20 as ‘ready mixed concrete' - Revenue's contention is that appellant's product is 'dry mix concrete' classifiable under heading 3824.90 - Product does not contain stone aggregates and water - As per ISI specification the mixture can be held to be 'ready mix concrete' only when the same is ready to be used without any further process - Water an essential element in ‘ready mix concrete' - Assessee's product not provided in the specifically designed transit mixture but removed in plastic bags and there is no addition of water - Product

classifiable under the heading 3824.90 - Assessee's claim for benefit of SSI exemption to be examined and demand re -quantified by treating the entire consideration as cum duty price


M/s Siddh Industries Vs CCE (Dated: April 1, 2013)

Central Excise - Clandestine removals - Statements retracted - In absence of any corroborative evidence, adjudicating authorities findings for confirmation of demand is unsustainable, as demand of duty cannot be done on the basis of presumption and assumption - Affidavits which have been filed by proprietor and another person, indicate statements were recorded by lower authorities by putting pressure and under coercion and they were made to make pencil entries on Sales Tax register - The lower authorities have not put any effort to contradict these affidavits, and are considered correct by the Adjudicating Authority.

Order beyond the scope of Show Cause Notice - Manner of quantifying the demand by multiplying one month's production by twelve - This way of making out the demand was not put forth to the appellant in the Show Cause Notice - It is settled law that any confirmation demand which is beyond the allegation in Show Cause Notice is not sustainable.

Impugned order which is passed on presumption and assumption is unsustainable and liable to be set aside.

2013-TIOL-1025-CESTAT-KOL

M/s Nilkanth Ferro Ltd Vs CCE (Dated: April 23, 2013)

Central Ex cise – Stay/Dispensation of pre -deposit – Denial of CENVAT Credit on unprocessed Silico Manganese which was cleared on payment of duty after grinding, sizing and packing on the ground that such processes do not amount to manufacture – Prima facie case made out for waiver of pre-deposit as the resultant goods were removed on payment of duty.


M/s L Kant Paper Mills Ltd Vs CCE (Dated: March 14, 2013)

CENTRAL EXCISE – Clearance of goods without payment of duty - Assessee engaged in manufacture of M.S. ingots - Private records of recipient of goods shows receipt of dutiable goods i.e. ingots from assessee - Quantity reflected in the private records not reflected in the statutory records - Director of the manufacturing unit and authorised signatory of the recipient of goods admitted clearance/receipt of goods without accounting for in statutory records - Clear case of clandestine clearance of goods - Invoking of extended period of limitation and imposition of penalty upheld – Appeals dismissed


Suditi Industries Ltd Vs CCE (Dated: December 20, 2012)

Notfn 14/2002-CE - appellant manufacturing knitted fabrics (unprocessed) from duty paid yarn without availing CENVAT credit on inputs or capital goods - said fabrics were stock transferred to Pawane unit at Nil rate of duty under sr. no. 10 of notification as condition 1 to notification was satisfied inasmuch as yarn was duty paid and no CENVAT was availed - at Pawane unit these goods were subjected to processing and the processed knitted fabrics were cleared at Nil rate of duty under sr. no. 12 of notification - it is the case of the department that the exemption is not available in terms of sr. no.12 as condition 3 of notification is not satisfied inasmuch as ‘knitted textile fabrics' were not duty paid. Held - Explanation II to the notification clarifies that textile yarn or fabrics shall be deemed to have been duty paid even without production of documents evidencing payment of duty thereon - there is no stip ulation that the exemption would not be available if the textile yarn or fabrics are proved to be non-duty paid - in this view of the matter, the goods received by Pawane unit are deemed to be duty paid - benefit of notfn. 14/2002-CE is available to appellant - Order set aside and appeal allowed with consequential relief: CESTAT [paras 9 & 14]


M/s Anutone Acoustics Ltd Vs CCE (Dated: April 10, 2013)

CENVAT - Although the activity undertaken by the appellant does not amount to manufacture but when they have cleared their finished products on payment of duty, the same is required to be treated as reversal of CENVAT Credit availed on inputs - in fact applicant has paid an amount of Rs.16,04,778/- from PLA towards the duty in respect of the goods cleared - no cause for further reversal of CENVAT: CESTAT [paras 5 & 6]

Limitation - appellant applying for registration in August 2006 - query raised by the Dy. Commissioner replied to and the factory was visited by officers and after understanding the activity registration was granted - SCN later issued invoking extended period and demanding reversal of CENVAT credit for the period October 2006 to March 2009 - as the activity undertaken was in the knowledge of the department, extended period is not invokable - Order set aside and appeal allowed with consequential relief: CESTAT [paras 5 & 6]


CCE Vs M/s Paushak Ltd (Dated: May 17, 2013)

Central Excise - CENVAT Credit - Rule 6 - Diethyl Carbamyl Chloride cleared by claiming exemption under Notification No 6/2002-CE dated 01.03.2002 by following Chapter X procedure - Demand of 8%/10% on the goods cleared rightly set aside by the lower appellate authority - No merit in revenue's appeal.


M/s N D Metal Industries Ltd Vs CCE (Dated: April 9, 2013)

CE - confirming demand on a different ground, that's what was not the subject matter of the show cause notice and adjudication proceedings, was not permissible without issue of a separate show cause notice to the appellant - Commissioner (Appeals)

confirming the demand on a different account that what was the subject matter of show cause notice and adjudication proceedings, is bad in law and needs to be set-aside: CESTAT [ paras 7 & 8]

CENVAT credit cannot be denied on the basis of presumptions and surmises - arguments raised by Commissioner (Appeals) can at best create a suspicion on presumption but cannot take the place of evidence when appellant has brought on record that copper tin based alloys ingots of SH 7403.22 are manufactured by them - there is also no evidence on record that Tin ingots received by the appellant were diverted elsewhere or that no Tin ingots were received and only documents were received by the appellant: CESTAT [ para 9]

Once on merits the case goes in favour of the appellant, the penalty imposed does not survive: CESTAT [ para 10]


M/s Meghmani Organics Ltd Vs CCE (Dated: February 15, 2013)

CENVAT - denial of credit on the ground that the said invoices are in the name of their head office and head office has not registered themselves as input service distributor - there is no dispute regarding the receipt of the services in the factory and also that service tax charged by the service provider has been discharged by the appellant - this infraction, if there is any, is an error rectifiable by endorsement of the invoices in name of the factory – Credit allowed: CESTAT


R S Kandalkar & Co Vs CCE (Dated: April 9, 2013)

CHALR, 2004 - consignment imported was inspected and it was found that the gas was 100% HCFC R -22 instead of the declared gas of HCFC R-404A - licence of CHA suspended subsequently - declaration made in the BE by the CHA is in accordance with the description of the goods given in the commercial invoice issued by foreign supplier and also in terms of the licence issued by DGFT - in such a scenario, it is not understood as to what crime the appellant CHA has committed - department can proceed against the importer - there is no proximity between the action of suspension and act of filing bill of entry - BE filed in January, 2012 and suspension ordered in December, 2012 - there is no basis for suspension of the CHA licence invoking the emergent powers under regulation 20(2) of CHALR, 2004 - order of suspension set aside: CESTAT [para 5.1]


M/s Stovekraft Pvt Ltd Vs CCE (Dated: February 19, 2013)

CENVAT Credit - Stay/Dispensation of pre-deposit - Cenvat credit of Se rvice Tax on amounts paid to oil companies and LPG Distributors for marketing of LPG stoves manufactured by the appellant - Revenues contention that credit is not admissible to the appellant as it relates to activities beyond the place of removal - No dispute that credit was taken of service tax paid by BPCL and IOCL and their distributors on the amounts paid by the appellant to them in relation to the business of the appellant -

Prima facie, appellant was receiving "commission agents' services" from BPCL a nd IOCL and their distributors - Board's Circular No. 943/4/2011-CX dated 29/04/2011 in favour of assessee - Pre -deposit waived and stay granted.


CCE Vs M/s Swastic Conductors (Dated: February 11, 2013)

CENVAT - Appellant producing Steel wires from cenvatted wire rods for use in the manufacture of ACSR conductors - Revenue contention that since process is not excisable and does not attract Central Excise duty in view of SC decision in Technoweld Industries, availment of CENVAT is not legal - it is settled by various decisions that by utilizing the Modvat Credit for payment of duty on the final product, when no duty was required to be paid, an assessee can be said to have reversed the credit and as such further reversal is not called far - in the present case Rule (3) of Rule 16 of Central Excise Rules 2002, has been inserted by the Taxation Law (amendment) Act, 2006 effective from 13.7.2006 and in terms of the said amendment which is retrospective for the period from 29.05.2003 to 08.07.2004, the input credit taken at the stage of wire rod stands regularized - Inasmuch since the period involved in the present appeal is 29.05.2003 to 08.07.2004, the said retrospective amendment covers the legal issue - Appeal filed by the revenue is rejected: CESTAT [ paras 4, 5 & 6]


M/s Vinubhai Steel Co Pvt Ltd Vs CCE (Dated : May 3, 2013)

Central Excise - ROM - Denial of benefit of exemption under Notification No 202/08 CE dated 20.05.2008 - The inputs used in the manufacture of final product, under the claim of exemption benefit of Notification No. 202/88 are required to be duty paid - Contention that that 'NIL' rate is also a rate of duty is not acceptable because the rate specified in the Central Excise Tariff Act, 1985 can only be considered as a rate of duty as interpreted by the courts - Benefit of notification rightly denied - Computation of small scale exemption - No error in the order of Tribunal - ROM dismissed.


M/s Tolaram Electronics Pvt Ltd Vs CCE (Dated : May 2, 2013)

Central Excise - 100% EOU - Demand of duty on capital goods - If the appellant's request for re -export of capital goods and the raw materials is allowed by the competent authority, then the question of duty on such capital goods and inputs may not arise - Further, the rate of duty which has been applied by the adjudicating authority is on the date when the capital goods/raw materials were imported or procured locally - There are various decisions of this bench which indicate that the rate of duty as on the date of deboning or when the letter of permission is cancelled will be applicable - All these issues needs consideration by the adjudicating authority as there is no findings on this - Matter remanded.

2013-TIOL-996-CESTAT -AHM

M/s Aarti Industries Ltd Vs CCE (Dated: May 20, 2013)

Central Excise – Stay/Dispensation of pre -deposit - CENVAT Credit on M.S. Angles, H.R.Coils, M.S.Plates and Flanges – Use of individual items in the manufacture of capital goods will be gone into detail at the time of regular hearing – Pre -deposit of Rs 4 lakhs ordered.

2013-TIOL-992-CESTAT -DEL

CCE Vs M/s Kranti Steel (Pvt) Ltd, Bahraich (Dated: April 5, 2013)

CE - Shortage of final products - once the assessee has paid the duty on the same and penalty of 25% within 30 days of issuance of show-cause notice there is no force in department's appeal that being a case of clandestine removal 100% penalty should be levied - department has not appreciated the amendment brought about by The Taxation Laws (Amendment) Act, 2006 - Revenue Appeal rejected: CESTAT [ paras 8 & 10]

Also see analysis of the Order


M/s Aarti Industries Ltd Vs CCE (Dated: May 20, 2013)

Central Excise - Stay/Dispensation of pre-deposit - Demand of irregular CENVAT Credit - Credit was availed in the year 2004 and Show Cause Notice was issued in 2010 - Demand after five years is not sustainable - Prima facie strong case on limitation - Pre-deposit waived.


M/s Harsha Engineers Ltd Vs CCE (Dated: February 15, 2013)

Central Excise - CENVAT Credit - Input service - Service Tax paid on insurance charges - Insurance covering the export goods in Foreign Countries - Credit is admissible.


M/s HBD Packaging Pvt Ltd Vs CCE (Dated: June 26, 2013)

S.2 (f) of CEA, 1944 - Manufacture - process of printing and varnish/plastic coating of plain cartons received by the appellant does not amount to manufacture and as such no duty is chargeable on the same - even after processing, character and use of paperboard remained same viz. making of carton for packaging, and it did not become product of printing industry - Order set aside and appeal allowed: CESTAT [paras 7, 9]


M/s Royal Antibiotics & Investment Pvt Ltd Vs CCE (Dated: May 8, 2013)

Central Excise – Default of payment of duty under Rule 8(3A) of the Central Excise Rules, 2002 – Penalty under Rule 25 – Contention that penalty under Rule 25 is not imposable for default under Rule 8(3A) is not correct – Penalty has been rightly imposed by lower authority.


M/s Themis Medicare Limited Vs CCE (Dated: May 27, 2013)

Refund – Rule 5 of CCR, 2004 - Appellant exporting final product Ethambutol which is exempted from payment of duty – CENVAT credit availed on major inputs used for manufacture of Ethambutol and refund claim filed in respect of un-utilised CENVAT credit – lower authorities rejecting claim on the ground that basic documents not produced and that the exported goods could not have been cleared under Bond/LUT - details which has been annexed to the appeal memoranda was not considered in its proper perspective by the lower authorities and also the decision of Bombay High Court in the case of Repro India – order set aside and matter remanded to adjudicating authority to reconsider the issue afresh: CESTAT [paras 3 & 5]

2013-TIOL-978-CESTAT -MUM

M/s Maheshwari Solvent Extraction Ltd Vs CCE (Dated: May 31, 2013)

CE - Gums/Waxes & Recovered oil/fatty acids arising during the manufacture of Refined Rice Bran oil are entitled to the benefit of exemption notf. 89/95-CE - waste exempted in public interest vide said notification is necessarily only such waste which is marketable, excisable and dutiable because grant of exemption from duty would only arise if the goods are otherwise dutiable - appeals allowed: CESTAT



M/s S R Foils & Tissues Ltd Vs CCE (Dated: February 5, 2013)

Central Excise - Classification - Disposable aluminum foil casserole tray dish - Whether under CETH 76.15 as contended by the assessee or under 76.12 as contended by Revenue - No reason to take a different view than the one taken in case of Hindalco Industries Ltd. vs. CCE, Vapi (2009-TIOL-647-CESTAT-AHM) - Classification under 76.15 is upheld.


Super Cassettes Industries Ltd Vs CCE & CC, & ST (Dated: February 27, 2013)

Central Excise - Valuation - CAS-4 - Determination of value - Distribution of overhead costs and calculation of assessable value not done as per principles of CAS-4. Matter remanded to the adjudication authority to calculate the cost of production in terms of principles laid down in CAS-4. (Para 5)


Shingar Cosmetics Pvt Ltd Vs CCE (Dated: March18, 2013)

CE - ROA filed after 16 years – request for restoration is to be filed within 3 months from dismissal of appeal – ROA application dismissed: CESTAT [para 6]

2013-TIOL-968-CESTAT -KOL

M/s Sail, ISP, Burnpur Vs CCE (Dated: April 22, 2013)

CE - Goods cleared on payment of duty by two manufacturers from the same factory premises - Duty again demanded from the main manufacturer - Stay granted: duty has been demanded by the Revenue on the sole ground of difference between the quantity of the granulated slag shown in their Annual Operational Statistical Report and the quantity shown in the monthly ER-I Return filed by the Applicant during the period from July, 2004 to March, 2008. There is no other evidence of removal of goods from the factory, except the difference in the said two statements. It is not in dispute that M/s. ACC, DCSL is situated with in the same factory premises of the Applicant, as is appearing in the agreement dated 22.06.2006. Besides, it is also not

in dispute that M/s. ACC, DCSL, cleared the granulated slag on payment of duty. Prima facie , at this stage, without any corroborative evidence, it would be difficult to accept the difference in the quantities of granulated slag between the two statements, were the quantity cleared without payment of duty. Ore -deposit waived and recovery stayed.


2013-TIOL-967-CESTAT -BANG

M/s Pragati Print Pack Ltd Vs CCE (Dated: February 19, 2013)

Central Excise - Stay/Dispensation of pre-deposit - Corrugated carton boxes and Duplex Board Cartons cleared by the appellant by availing Notification No.43/2001-CE (NT) dated 6.06.2001 ultimately used for export - Revenues case that the Notification is not applicable to the assessee as the conditions of the Notification are not fulfilled - No dispute that the materials supplied by the appellants have been used for the purpose of export only - Whether conditions and procedure can be separated and whether if the appellant fulfills export procedure without fulfilling the conditions of Notification No.42/2001 would be entitled to the benefit of Notification No.43/2001 to be examined in detail - Prima facie case in favour of appellant - Pre -deposit waived and recovery stayed - CESTAT


M/s Otto Bilz India Pvt Ltd Vs CCE (Dated: February 1, 2013)

CENVAT credit - Stay/Dispensation of pre-deposit - Cenvat credit on steel rounds, alloy steel rounds etc., rejected midway during the process of manufacture - Cost of such materials recovered from the supplier - Material rejected midway not contained in the finished products and hence cannot be held to have been used in the manufacture of the final products - No evidence of the rejected material having been cleared on payment of duty - Prima facie case against the appellant - Pre-deposit of Rs.1,50,000/- ordered.


M/s Kala Enterprises Pvt Ltd Vs CCE (Dated: April 10, 2013)

CENTRAL EXCISE - Manufacture of DG Sets – Manufacturing activity carried out in unregistered factory premises whereas Central Excise registration taken in name and address of other premises - Inputs in the name of registered premises received in the unregistered premises and manufacturing activities/records of registered premises carried out/ maintained at unregistered premises - Central Excise duty demanded for

goods cleared from the unregistered premises and Cenvat credit taken in registered premises denied – HELD: Central Excise duty discharged in the name and address of registered unit and all Central Excise procedures followed in spite of the fact that manufacturing activities were being done at the unregistered premises – Delay in obtaining registra tion due to certain procedural difficulties - Nothing on record to show that any goods manufactured were not made out of raw materials received in the name and address of unregistered unit - No evidence of diversion of inputs received - Central Excise duty on the finished goods discharged - No further duty liability is attracted once the duty of the finished goods is discharged - Only procedural lapses and no intention on the part of the assessees to evade Central Excise duty – Duty demand and penalty set a side.

CENVAT CREDIT - Admissibility of Cenvat credit on the inputs received in the name and address of other premises - No dispute that inputs received were completely used in the manufacture of final products which are cleared on payment of duty- Settled law that for failure to follow the procedures, cenvat credit cannot be denied - Cenvat credit on inputs received in the name and address of registered unit admissible - Penalty set aside.


M/s DCW Limited Vs CCE (Dated: April 4, 2013)

CENVAT CREDIT - CENVAT Credit on inputs viz. M.S. plates, angles, pipes etc, utilized for fabrication of various plants & machinery with its auxiliaries and accessories - Appreciation of certificate given by the Chartered Engineer for availment of Cenvat credit – Adjudicating authority to reconsider the issue afresh keeping in mind the Chartered Engineer's certificate and verification of duty paying documents and pass an order within the framework of the show cause notice issued - Appeals allowed by way of remand to the adjudicating authority.

Scope of SCN - Revenue authority cannot go beyond the charges leveled in the show cause notice - Appellate authority incorrect in coming to conclusion that adjudicating authority should be given a leeway for adjudicating the issue even on the charges not mentioned in the show cause notice - Appellate authority has not followed the law which has been settled by Apex Court in various decisions.


M/s Vardhman Stampings Pvt Ltd Vs CCE (Dated: May 2, 2013)

Central Excise - CENVAT Credit - Stay/Dispensation of pre -deposit - Credit on CR coils subsequently removed after slitting - Cenvat credit denied on the ground that cutting and slitting of CR Coils does not amount to manufacture - Prima facie case in favour of the appellant - Pre-deposit waived and stay granted.


M/s Syngenta India Ltd Vs CCE (Dated: April 19, 2013)

Natural justice - violation thereof - allegation that ineligible CENVAT credit was availed by the appellant as a job worker - adjudicating authority has not given the relied upon documents which were sought by the appellant for contesting the demands raised on them - in the absence of such documents, appellant would be handicapped to put up the defence - adjudicating authority directed to provide documents within 30 days and appellant to file written submission in 60 days - matter remanded: CESTAT [ paras 5 & 7]


M/s Shri Khatu Shyam Industries Vs CCE (Dated: Januay 30, 2013)

Central Excise - Clandestine clearances - Redemption fine on raw material and finished goods - Penalty on Partnership firm, Partners and Authorised Signatory - Findings that raw material were not duty paid when they were procured from the open market is not substantiated. Imposition of redemption fine on raw material not sustainable. On un-accounted goods found in excess inside the factory premises, redemption fine is imposable. Once penalty is imposed on the partnership firm, no penalty is imposable on the partners. However, Redemption fine and penalty imposed being excessive, reduced. (Para 10, 11 & 13)


M/s Rallis India Ltd Vs CCE (Dated: March 15, 2013)

Central Excise - CENVAT Credit - Distribution of Credit by Input Service Distributor - Cenvat credit with respect to input services received in the other units of the assessee - Credit taken on the basis of invoices issued by the head office registered as ISD (Input Service Distributor) - Credit cannot be denied on the ground that the input services were received in some other units and during distribution of input services credit was given to another unit of the appellant - No reason shown as to how the documents issued by the head office of the appellant are not the proper documents under Cenvat credit rules when it gives all the relevant details required under the Cenvat Credit Rules - Rule 7 of the CENVAT Credit Rules, 2004 - Appeal allowed and Order-in Appeal set aside


M/s Winsome Yarns Ltd Vs CCE & ST (Dated: April 23, 2013)

Central Excise - Stay/Dispensation of pre-deposit - Simultaneous availment of exemption under Notification No 29/2004 CE (concessional rate of duty) and Notification No 30/2004 CE (full exemption) - When an assessee does not avail of input duty credit, he has option to pay 4% duty under Notification No. 29/2004-CE and also the option to clear his goods at nil rate of duty under Notification No. 30/2004-CE and when two exemption Notifications are available to an assessee, he can always opt for the Notification which is most beneficial for him and in this regard the Department cannot force the assessee to avail a particular exemption Notification - Denial of CENVAT Credit on capital goods by forcing the assessee to avail exemption under Notification No 30/2004 CE is prima facie not sustainable - Pre -deposit waived.


CCE Vs M/s Roopalee Dyeing & Printing Works (Dated: March 12, 2013)

Central Excise - Extension of stay - There is no change in the circumstances when the stay was initially granted. Direction to at least block the immovable assets equal to the amount involved in the matter, as requested by revenue is not given as Tribunal has already granted unconditional stay. Extension of stay for a further period of six months allowed. (Para 6 & 7)


VIP Industries Ltd Vs CCE (Dated: April 9, 2013)

Inclusion of ‘depot' in definition of place of removal in s.4 by FA, 2003 – error in definition reproduced in order rectified - in spite of above, Transaction value would include cost of transportation from facto ry to depot for prior clearances – ROM disposed of: CESTAT [paras 3, 4 & 5]


M/s Jindal Drugs Ltd Vs CCE (Dated: May 15, 2013)

Rebate - Applicant clearing goods manufactured in J & K unit in terms of exemption operated through procedure prescribed in notification nos. 56/2002-CE & 57/2002-CE to Mumbai unit, availing CENVAT credit and then affixing labels on the same and treating the same as manufacture u/s 2(f) and clearing the goods for export and claiming rebate of duty - notification 19/2004-CE(NT) governing rebate of duty clearly envisages that rebate is not admissible in such a situation - activity prima facie does not appear to be manufacture - whole exercise of putting extra labels appears to be done to get refund of duty twice, once in J & K and second time in Mumbai - just because an Inspector has supervised stuffing of container, one cannot say that department has knowledge of each and every activity of manufacturer - whether extended period of limitation is applicable - Quantum of pre-deposit to be made - Difference of opinion - Matter referred to Third Member: CESTAT



M/s Oberthur Card System Pvt Ltd Vs CCE (Dated: April 4, 2013)

Central Excise – CENVAT Credit on common inputs used in manufacture of dutiable and exempted goods – Appellants paying 10% on the value of exempted goods under Rule 6(3) – Demand of CENVAT Credit on the ground that the dutiable goods were only 1% and 99% were exempted goods – No percentage is fixed under Rule 6 for dutiable and exempted goods – Demand is not sustainable – However, CENVAT Credit is not admissible on inputs used exclusively in exempted goods. – CENVAT Credit is admissible on exempted goods exported.


M/s Omega Construction Equipment Pvt Ltd Vs CCE (Dated: February 14, 2013)

CE - Since both the units are owned by the same person but were having separate central excise registration, one unit could not clear that the goods to other without payment of duty and without observing central excise formalities – at the time of detention of the two cranes found in adjacent unit, the appellant did not mention that they were not in fully finished condition and that the tool box and tyres were to be fitted and PDI is to be carried out - in any case, since both were separate premises with independent CE registration, clearance should have been made on payment of duty – contravention being technical in nature, redemption fine and penalties reduced: CESTAT [ para 6]


M/s Apex Home Appliances Vs CCE (Dated: April22, 2013)

CE – Natural justice - Commissioner passing an order-in-original in less than 24 hours of conducting hearing - submissions made by appellant not considered and no finding given thereon – appellant offers to make a pre -deposit of Rs.50 lakhs within a period of 12 weeks - Commissioner to hear the case only after deposit of the above mentioned amount and pass a speaking order on all points raised – appellant should not seek adjournments as far as possible and Commissioner ot decide case expeditiously - no opinion expressed on any issue by CESTAT - Matter remanded: CESTAT [paras 5 &6]


M/s Dr Reddy's Laboratories Ltd Vs CCE & ST (Dated: February 8, 2013)

Interest on irregular credit - Karnataka High Court Judgement per incuriam - Supreme Court Judgement in Ind-Swift applicable: there is only one ruling that is applicable to the instant case and the same is the one handed down by the apex court after interp reting the provisions of Rule 14. The ruling is to the effect that the word ‘or' appearing between the words “taken"and “utilized"cannot be read as ‘and'. The effect of this ruling is unambiguously clear. Where an amount of inadmissible CENVAT credit was taken by a manufacturer of excisable products or a provider of output service but later on reversed, he has to pay interest under Rule 14 for the period from the date of taking of credit to the date of its reversal, whether or not the credit was utilized. In the result, it has to be held that the short question (whether the appellant is liable to pay interest under Rule 14 of the CCR 2004 on the amounts of CENVAT credit in question) has to be settled in favour of the Revenue in view of the Hon'ble Supreme Court's ruling in Ind-Swift Laboratories case.


2013-TIOL-933-CESTAT -MAD

L G Balakrishnan And Bros Ltd Vs CCE (Dated: January 10, 2013)

Central Excise – Stay/Dispensation of pre -deposit – Valuation - Clearance of semi-finished goods to other unit – Increase in administrative overheads not taken into account while arriving the value in accordance with CAS4 – A pplicants prima facie liable to pay duty on the overhead charges and they had not disclosed to the Department - Pre-deposit Rs.10,00,000 ordered – Pre -deposit of balance duty, penalty and interest waived


M/s Adani Gas Ltd Vs CCE (Dated: February 5, 2013)

Central Excise – Dispensation of CNG Gas to AMTS ( Ahmedabad Municipal Transport Services) Buses – Cancellation of Registration Certificate - Board has directed the lower authorities not to give registration certificate to the premises where CNG is merely dispensed, after being transported in Mobile cascades – In the instant case, a pipeline is extended for transferring/transporting the CNG to the place from where they dispense CNG to the AMTS buses - This dispensation of CNG to AMTS buses is independent of the other commercial vehicles being dispensed - The action of the lower authorities in cancelling the registration certificate of these places is erroneous and is not sustainable.


M/s Arani Agro Oil Industries Ltd Vs CCE (Dated: March 20, 2013)

Superintendent's presence in the Court has been occasioned due to the misfeasance and reprehensible conduct of the appellant of the appellant - since same was not warranted costs imposed of Rs.10,000/- - Witness discharged: CESTAT [para 5]


CCE Vs M/s Amar Roto Prints (Dated: January 31, 2013)

CE- Inputs used in a process not considered as manufacture by the Department – Duty paid – Credit cannot be denied: CENVAT credit taken on inputs used in the manufacture of finished goods is not liable to be disallowed on the ground that the process in which the inputs were used did not amount to ‘manufacture'.

Duty cannot be again demanded under Section 11D: Section 11D of the Act applied only to a person who had collected duty and not paid to the credit of the Central Government. The respondent had paid duty on their finished products. Naturally, they collected this duty from their customers. The department is asking the party to remit such collections also to the Government under Section 11D of the Central Excise Act. Indisputably, the respondent paid duty on their finished goods and hence there is no question of a second payment of the same duty to the Central Government under Section 11D of the Act.

Unfortunate Appeal ? It is unfortunate that such concurrent view of the original authority and the appellate authority on the point was sought to be challenged by the department.



M/s Meneta Automotive Components Pvt Ltd Vs CCE & ST (Dated: February 6, 2012)

Central Excise - Stay/Dispensation of pre-deposit - 100% EOU - Exemption to Iron and Steel scrap cleared in DTA under Notification No 21/2002 Cus dated 01.03.2002 - Prima facie exemption is admissible.

Exemption to SAD under Notification No 23/2003 CE dated 31.03.2003 - No prima facie case as the applicant has applied for fixation of ad-hoc norms to the Development Commissioners only on 04.07.2009 where as the applicant was selling their scrap to DTA since 29.03.2008 - Rs 10 lakhs ordered to be pre-deposited.


M/s LMR Polymers Vs CCE (Dated: January 9, 2013)

CENVAT – Allegation that the appellant has availed CENVAT credit without receipt of inputs – investigation concluding that vehicle registration number shown in the invoices are either of rickshaw which is not capable of transporting goods weighing 16MT or vehicles which are not existing on RTO records and on the basis of statements of owners of the vehicle numbers who have denied transporting any such materials – Adjudicating authority confirming the show-cause notice without appreciating the evidences produced on record and without granting the cross-examination of the vital witnesses whose statements have been relied upon against the appellants is not proper in law – matter remanded to original authority for fresh adjudication: CESTAT [ paras 5 & 6]


M/s Kisan Sahkari Chini Mills Ltd Vs CCE (Dated: July 17, 2012)

Central Excise - CENVAT - Common inputs - Rule 6 of CCR - Bagasse cleared without payment of duty - Demand - Department has failed to establish that the assessee used cenvatable inputs for production of bagasse. Rule 6(2) and 6(3)(i) & (ii) of Cenvat Credit Rules, 2004 are attracted only in a situation where manufacture has availed cenvat credit in respect of inputs which are used for or in relation to manufacture of final products. Demand along with penalty and interest set aside. (Para 8)


Kovai Maruthi Papers And Boards (P) Ltd Vs CCE (Dated: January 10, 2013)

Central Excise – Stay/Dispensation of pre -deposit - Kraft paper - Exemption under Notification No.6/2002-CE dated 1.3.2002 and Notification No.4/6-CE dated 1.3.2006 denied on the ground that the assessees were not manufacturing their finished goods starting from the stage of pulp that is directly forming part of finished goods – As per CBEC circular No.40/92-TRU dt.6.6.92 exemption benefit not to be denied on the ground that the pulp itself is manufactured in the same factory – Assessee contended that Commissioner denied exemption benefit on different reason which is beyond the scope of the SCN - Finding of the Commissioner in the impugned order in respect of the content of weight of pulp beyond the scope of show cause notice - Prima face case made out by the appellants for waiver of pre -deposit of entire amount of duty and penalty.


3M India Limited, UB City Vs CCE & ST (Dated: February 4, 2012)

CE - CENVAT Credit - Transfer of credit to different registered premises of a Large Taxpayer - No ISD Registration required - Transfer of credit different from distribution: Commissioner was proceeding on the premise that the corporate office was distributing the credits to the three manufacturing units at Bangalore, Ahmedabad and Pune. Before the Commissioner, the case of the appellant was that their corporate office was transferring a part of the credit of service tax; Therefore, the learned Commissioner ought to have, at the outset, determined whether the corporate office of the company was transferring the credit to the three manufacturing units or whether it was distributing the credit to them inasmuch as there is an intelligible difference between the two. An ISD - an office of the manufacturer of final products or provider of output service - receives invoices issued [under Rule 4A(1) of the Service Tax Rules, 1994] by input service providers, and issues invoices [under Rule 4A(2) of the Service Tax Rules, 1994] for the purpose of distributing the credit of service tax paid on the input services, to such manufacturer of final products or provider of output service. The ISD receives and distributes service tax credit. In the case of a LTU, any of its members viz. manufacturers of final products and/or providers of output services receives input services under cover of invoices issued by the providers of such input services and transfers CENVAT credit of the service tax paid on such input services, wholly or partly, to other members of the LTU, under cover of “transfer challans”. In the ISD regime, the manufacturer of final products or the provider of output services receives both input services and CENVAT credit of the service tax paid thereon. On the other hand, within a LTU, the transferee-member (premises) receives only CENVAT credit from the transferor-member (premises) under Rule 12A(4) of the CCR, 2004.



M/s Kich Industries Vs CCE (Dated: February 22, 2012)

Central Excise - SSI - Clubbing of clearances - Revenue has not been able to make out a case by showing that Kich Industries, (KI) first appellant was in reality the manufacturer; other than completing some finishing work, KI did not undertake manufacture of all the goods claimed to have been manufactured by others; even though the same family members were partners, directors etc. in the firms and companies, for all legal purposes, each unit was treated separately - Revenue has not made out a case to show that 'KI' was in reality the manufacturer - The panchanama does not reveal that the units did not have facilities for manufacture; raw materials are received by each unit separately, accounted separately - No case made out for clubbing of clearances. (Para 5)


M/s Jindal Photo Ltd Vs CCE (Dated: February 8, 2013)

Central Excise – CENVAT Credit on batteries supplied free of cost along with film roll - Appellant is re -packing and re -labelling the final product cleared by them i.e. film rolls along with the battery inside the pack of film roll - This particular activity as per the Chapter Note to Tariff Heading No.3702 would amount to manufacture, which is not disputed – CENVAT Credit is therefore admissible.


M/s Jansons Textile Processors Vs CCE (Dated: January 8, 2013)

Central Excise - Stay/Dispensation of pre-deposit - Compounded Levy Scheme - There is a strong prima facie case in favour of the applicant for the period after 01.11.2001 since from that date the applicant-assessee was not having any open-air stentor - For the period prior to that, the matter is arguable whether the appellant is covered under Compounded levy - Pre -deposit of Rs 35 lakhs ordered.


M/s Lyka Labs Ltd Vs CCE & ST (Dated: May 3, 2013)

Central Excise – Stay/Dispensation of pre -deposit – Classification of “Sensur Rubefacient & Herbyl Skin Ointment" containing both Ayurvedic ingredients and ingredients having therapeutic value which are of synthetic origin - Case of appellant that their product merits classification as ayurvedic medicament under Tariff heading 3003.39 as all the ingredients are known to ayurvedic science and marketed as ayurvedic medicaments – Revenue classified product under 3003.10 of the CETA 1985 as P or P Medicines (other than Ayurvedic Medicines) - Same chemical can be extracted both from a material of vegetable origin and also be chemically synthesised in the laboratory - Nature of the product and how it is perceived by the buyers required to be gone into for proper appreciation of the issue – Pre-deposit ordered


M/s Rathi Udyog Ltd Vs CCE (Dated: March 21, 2013)

Central Excise – Stay/Dispensation of pre -deposit - Removal of excisable goods without payment of duty in the garb of trading - Asseessee engaged both in manufacture of excisable goods namely TMT, TOR, Steel Bars, Rods etc. and in trading activity of procuring TMT/TOR Steel from traders and selling the same from depots under trading invoices - Demand confirmed by Adjudicating Authority in respect of goods purchased from six traders found to be non-existent - Sales-tax Returns submitted in respect of two traders – No evidence produced about existence of other traders - No prima facie case in respect of these traders – Pre-deposit

ordered.


M/s Finlay Mills Vs CCE (Dated: April 12, 2013)

ST - Appellant, a co-operative bank, taking possession of factories in terms of SARFAESI Act and leasing out the same - lease rents received are prima facie liable to Service Tax as the transaction falls within the definition of "Renting of Immovable Property" - as amount already paid, though under protest, same is sufficient for hearing appeals - Stay granted: CESTAT [para 5.1]


M/s Oleofine Organics (India) Pvt Ltd Vs CCE (Dated: April 10, 2013)

CX - Revenue alleging that manufacturers were required to supply goods at Nil rate of duty as per Notfn 44/2001-CE (NT) but since they paid duty, the same cannot be availed as CENVAT Credit as it has to be treated as deposit - Notfn. and the connected rules do not require the appellant to necessarily clear goods duty free - overall there is no loss to Revenue as credit is being taken of duty paid - it is also seen that the suppliers have in the relevant years paid substantial duty from PLA and, therefore, the Revenue's contention regarding shifting of credit does not hold water - Revenue representative unable to show any specific provision under the CE law requiring appellants to clear goods in the said situation under Notfn. 44/2001-CE(NT) ONLY - Appeals allowed: CESTAT [para 5]



M/s Laxmi Impex Vs CCE (Dated: January 15, 2013)

CE - findings of the lower authorities that the appellant has not cancelled and re-entered the said stock with proper intimation to the Department, cannot be the reason to hold that the goods were liable for confiscation as the confiscation of the goods can be made only if they are non-duty paid or duty liability has not been discharged - documentary records indicate the discharge of duty liability on such quantity of goods - both the lower authorities have adopted a very irrational and illogical way of coming to conclusion that the goods are liable for confiscation – findings are erro neous and liable to be set aside – Appeal allowed: CESTAT [ para 8]


CCE Vs M/s Minda Acoustics Ltd (Dated: April 8, 2013)

Central Excise – CENVAT Credit on business support service such as security, cleaning and house keeping , canteen, reception, maintenance of common areas i.e. roads, parking, security gate and running and maintenance of common facilities like ETP, STP, EPBX, WTP, DG sets, air compressors, chilling plant – Issue is no longer res integra – Credit is admissible – Assessee's appeal against the order of Commissioner (Appeals) is allowed - Revenue appeal against the order of Commissioner (Appeals) allowing credit on services like CHA, Rent a cab etc is dismissed.


M/s Godfrey Philips India Limited Vs CCE (Dated: April 20, 2013)

CE – Duty on cigarettes for the period 17/03/2012 to 27/05/2012 – unless the amendment moved to the Finance Bill, 2012 on 07/05/2012 to replace the 10% ad valorem rate of duty with specific rate was made effective from 17/03/2012 by declaration under the Provisional Collection of Taxes Act, 1931, effective date of enhancement would be date of enactment of the Finance Bill, 2012 i.e 28/05/2012 – Prima facie case for 100% waiver of pre -deposit – Stay granted: CESTAT [para 4]



CCE Vs M/s Hikal Ltd (Dated: February 15, 2013)

Central Excise – Refund – Excess duty paid claimed as refund – The buyer of the goods reversed the credit along with interest and did not pay the same back to the respondent assessee – Revenue appeal on the ground of unjust enrichment has no merit - Respondent has been able to pass the hurdle of contentions of the department regarding unjust enrichment, in as much as, the buyer has reversed the amount of credit taken by them with interest in their PLA and there is no dispute that they have not paid this amount to the respondent.


M/s Hindalco Industries Ltd Vs CCE (Dated: February 14, 2013)

Central Excise – Stay//Dispensation of pre-deposit – CENVAT Credit availed on Input Service Distributor invoices issued by the mines – The mines are not exclusively captive to the manufacturing unit and ore is supplied to other units also – Further, input service distributor under Rule 7 has to be only one and the credit can be given to different manufacturing units because the "manufacturing units" is used in the rule in plural whereas the input service distributor is mentioned as singular - In the present case input service credit is being taken by M/s Hindalco Industries Ltd. at Renukoot whereas the input service distributors are more than one as separately registered as Lohardaga and Samri etc. – No prima facie case for waiver of pre-deposit – Rs 2 crores ordered to be deposited.


Kalki Industries Vs CCE (Dated: May 6, 2013)

CE - Tribunal granting stay on deposit of amount of Rs.10 lakhs in addition to the amount already deposited and waived the pre-deposit of the balance amount of duty, interest and penalty – Revenue interpreting the order that no stay has been granted – it is made clear that on deposit of amount mentioned in stay order, pre-deposit of remaining dues is waived – Miscellaneous application disposed of: CESTAT


M/s Hawkins Cookers Ltd Vs CCE (Dated: April 10, 2013)

CE - CENVAT - cookers removed in bulk packing from factory along with extra (single) cartons - at depot, cookers are repacked in single cartons by using the packing material cleared from factory - CENVAT credit not admissible for the period prior to 14/05/2003 since depot was not defined as ‘place of removal' u/s 4 of CEA, 1944 - however, larger period of limitation not invokable as appellant declaring packing material in RG-23 Pt I returns - Appeal allowed: CESTAT [para 10.1]



M/s F S Engineers Vs CCE (Dated: March 28, 2013)

Central Excise – Default in payment of duty – Rule 8(3A) - Whether payment made through cenvat credit during the default period instead of making the payment in cash invites recovery of duty and imposition of penalties - It cannot be said that no duty

was paid when transactions were duly recorded in the statutory records - The loss to the revenue is only to the extent of interest for the period from the date of utilising the cenvat credit till the payment of entire duty in cash - Appellant is, liable to pay the interest at applicable rate for this period – Penalty under Rule 25 is not attracted.


CCE Vs Tungabhadra Holdings Pvt Ltd (Dated: April 17, 2013)

CE - Grant of registration ordered by Commissioner(A) - After filing appeal before CESTAT, Revenue is of the view that registration is to be granted – appeal dismissed: CESTAT [para 4]


M/s Gyscoal Alloys Ltd Vs CCE (Dated: March 08, 2013)

Central Excise – Shortage of inputs on physical verification – Contention that the case is based only on the RTO reports and the admission of the Director – Considering the facts and circumstances of the case, it is held that the department has reasonably discharged the burden that inputs were not received by the appellants - No manufacturer can be expected to keep documentary evidences of its clandestine activities - The order passed by Commissioner (Appeals) is, correct and legal – Personal penalty against the director of the company – It is seen from the records that he was aware of the bringing of inputs without actually receipt of the same and therefore, the penalty has been rightly imposed on the Director.


M/s Hans Roadways Vs CCE & ST (Dated: May 08, 2013)

Penalty - where a penalty is imposed on a partnership firm, no separate penalty can be imposed on any of its partners – prima facie case in favour for non-imposition of penalty – Stay granted: CESTAT [ para 7]

Penalties on the authorized signatories and transporter - Commissioner (A) has given elaborate reasons for imposing penalties upon these appellants – since both were aware of the clandestine activity being undertaken by the manufacturer, prima-facie they appear to be liable for penalty – Pre -deposit ordered of 50% of penalty: CESTAT [ para 8]


M/s Harihar Agro Industries Vs CCE & ST (Dated: April 29, 2013)

SSI exemption – notfn. 8/2003-CE – Chapter 84 – Power driven pumps etc. entitled for exemption if they conform to standards specified by Bureau of Indian Standards - appellant has been able to produce BIS certification only in respect of two products whereas in respect of others they claim that the Chartered Engineer has certified that they conform to BIS standards – SSI benefit denied in respect of those products - issue needs to be gone into detail - pre-deposit ordered: CESTAT [ para 4]


Cargil Foods India Ltd Vs CCE (Dated: January 16, 2013)

CENVAT - Appellant availing benefit of notification 45/2002-Cus and debiting CVD in DEPB passbook - para 4.3.5 of EXIM Policy 2002-07 specifically provides that in case additional customs duty is adjusted from DEPB no benefit of CENVAT or duty drawback is eligible - in view of clear provisions of EXIM policy CENVAT has been rightly denied - as the MD has admitted that he was aware that no CENVAT credit is available as per EXIM policy, penalty has been rightly imposed - no ground to interfere with order of the adjudicating authority - Appeals dismissed: CESTAT [paras 14, 16, 17 & 18]

Limitation - appellant fully aware that as per EXIM policy no credit is available when additional duty has been debited in DPEB pass book - appellant has not disclosed the fact that duty has been paid by making debit in the DEPB pass book while declaring credit in the monthly return - no infirmity in invoking the extended period of limitation: CESTAT [para 15]



M/s Sukalp Agencies Vs CCE (Dated: May 19, 2013)

Central Excise – Valuation - Installation and commissioning charges - In the absence of material to show separability of clearance of excisable goods from installation and testing charge activity by divisible contracts, the same cannot be excluded from the value – Demand of duty and penalty upheld.

Clearance of D.G. Sets without payment of duty – Demand of duty and penalty upheld.

Difference of income in shown in the Profit and Loss account and the value shown in the invoices – Appellant claim that they are also engaged in trading activity in addition

to manufacturing – Matter remanded to grant a fair opportunity to the appellant to adduce evidence of profit and loss account of the trading concern to prove its stand as to the disclosure of sale figure in respect of trading activity and clearance value of goods manufactured and also to reconcile the duty payment.

Penalties on individuals involved is upheld, but reduced.


M/s Vinayaka Food Products Vs CCE (Dated: February 15, 2013)

Rule 10 of the Pan Masala Packing Rules, 2008 - intimation regarding the closure of the factory from 04/04/2009 & from 03/07/2009 given three days in advance to the Jurisdictional authorities - Period of abatement - just because the Superintendent's remark regarding sealing does not mention the time of sealing, it cannot be presumed that on 4th April 2009 and 3rd July 2009, the factory had operated - the day on which the factory was sealed cannot be treated as the day on which the factory had worked - order denying abatement for the two days is not sustainable - appeal allowed with consequential relief: CESTAT [ para 6]


M/s Pidilite Industries Ltd Vs CCE (Dated: May 16, 2013)

CE - There is no assessment of the liability of the assessee; no determination whether the unusable aluminium tubes were manufactured or marketed, nor a determination of the assessee's liability to duty nor the quantification of excise duty is assessed, under any head, either by the primary authority or by the appellate authority – since assessee suffers no prejudice nor is assessed to any duty, interest or penalty, no reason to set aside order of appellate authority – appeal dismissed: CESTAT [paras 4 & 5]

The primary order has been effaced by the appellate authority but that by itself does not impose any liability on the assessee to remit tax: CESTAT [para 6]



CCE Vs M/s Kaal Flex Pvt Ltd (Dated: January 28, 2013)

Central Excise – 100% EOU – Goods imported duty free under Notification No 52/2003-Cus dated 31.03.2003 - Demand of duty on the goods short-received in the warehouse – The Bills of Entry were finally assessed by the Customs on actual quantity received - Revenue authorities have not challenged the final assessment of bills of e ntry – In such a case, the order of the lower appellate authority in setting aside the demand cannot be faulted – No merit in the appeal by revenue.


M/s Sun Pharmaceutical Industries Ltd Vs CCE (Dated: May 13, 2013)

CE - Against a single order passed by adjudicating authority covering 4 SCNs, a single appeal filed - Commissioner(A) holding that since only one appeal filed, the duty demanded in the other three SCNs is sustained as not contested - Single appeal for a common order is proper - Pre -deposit ordered as in a another appeal involving similar issue appellant was asked to deposit the entire duty amount: CESTAT [ paras 5 & 6]



M/s Agarwal Metals & Alloys Vs CCE & CC (Dated: April 18, 2013)

Central Excise – Demand of duty on clandestine clearances and demand of CENVAT Credit availed without actually receiving the goods – Contention that charges of clandestine removal and availing credit.

Central Excise – Demand of duty on clandestine clearances and demand of CENVAT Credit availed without actually receiving the goods – Contention that charges of clandestine removal and availing credit without receiving the inputs cannot co -exist - The case relating to clandestine removal is based on non-transportation and non-receipt of Aluminium scrap and the clandestine removal charge is based on specific quantity of raw materials accounted for and feasible production therefrom. Both can co-exist.

Demand of CENVAT Credit – Evidences would clearly indicate that the transportation of inputs did not take place - None of the evidences relied upon by the investigators have been rebutted effectively by the appellants – No error in adopting SION norms by the department - These norms are arrived at after widespread consultation and after considering the production processes and unless other evidences are produced, the approach followed by the Revenue by relying upon SION cannot be faulted – Demand of CENVAT Credit upheld.

Demand of duty on clandestine clearances - The appellant's own authorized signatory had given admission statements as regards shortages and feasible production etc. - Generation of Aluminium ash and iron waste has been shown to be around 33% of the total production whereas it is quite well known that in Aluminium industry other than melting loss and evaporation of 2 to 3%, there cannot be any other loss - Evidences in the form of statements of transporters show that no ash or iron waste was

transported - The generation of this kind of quantity of ash & scrap itself supports the case of the Revenue - It is well known and well settled that when an assessee indulges in manufacture and clandestine removal, effort is to ensure that no records are available and it would not be possible to get evidences to the extent of 100%. In such a situation what is required is to be seen is preponderance of probability and the facts and circumstance of each case – Demand of duty and penalty upheld – Penalties on individuals reduced.


Gala Precision Technology Pvt Ltd Vs CCE (Dated: April 03, 2013)

CENVAT - Input Service - appellant manufacturer and exporter of excisable goods - as per sale agreement, goods were supplied either on CIF, FOB or door to door delivery basis - appellant paying ST on transportation service and claiming input service credit - Revenue alleging that input service credit on GTA is entitled upto the place of removal from 31.03.2008 and denying credit: Held:- although there is change in definition of ‘Input Service' post 01.04.2008, but an assessee who qualifies the condition laid down in Board Circular 97/08/2007-ST that ownership of goods and property remained with seller till delivery of goods in acceptable condition to the purchaser at his door step; seller bore the risk of loss or of damage to goods during transit and freight charges were an integral part of price is entitled for Input Service credit - appellant satisfying the conditions laid down and hence entitled for CENVAT credit on GTA: CESTAT [para 8]

Manpower service - bonus to workers and lunch allowances - supplier of manpower raising invoices of service provided by them - Revenue contending that bonus to workers and lunch allowances are not part of manpower service - any service availed by manufacture of excisable goods in the course of business is entitled for input service credit - CENVAT credit allowed: CESTAT [para 8]


M/s Gujarat State Fertilisers & Chemicals Ltd Vs CCE (Dated: January 17, 2013)

Central Excise - Demand of Interest - Limitation - Unless otherwise stipulated by the statute, limitation, which applies to a claim for the principal amount should also apply to the claim for interest thereon as held by the Supreme Court - Show cause notice issued on 26.04.05 for the demand of the interest for a period from April 2001 to March 2004 is blatantly time barred and any order confirming the demand of the interest due under such show cause notice is unsustainable.


M/s Gujarat Reclaim & Rubber Products Ltd Vs CCE (Dated: February 8, 2013)

Central Excise - CENVAT Credit on capital goods removed as scrap after 6-7 years of use - Demand of CENVAT Credit availed is not sustainable in view of the judgement of High Court in case of Raghav Alloys.


M/s Calibre Chemicals Pvt Ltd Vs CCE (Dated: February 8, 2013)

Central Excise - CENVAT Credit - Credit availed on invoices addressed in the name of Head Office - It is not in dispute that the credit availed by the appellant on the services rendered on the invoices which were raised by the service provider in the name of head office were actually received in the factory premises. It is also undisputed that the service provider raised the invoices and charged appropriate Service Tax - Credit cannot be denied on the ground that the Head Office did not issue Input Service Distributor invoices.

CENVAT Credit - Input services - Credit on Scientific and Technical Services, Courier services, Repairs and Maintenance services is admissible as these are undisputedly used in manufacturing activity.


M/s Central Railway Vs CCE (Dated: May 6, 2013)

Argument advanced for condonation of delay is purely bureaucratic red-tape and not satisfactory – COD application dismissed – Stay application and appeal also dismissed: CESTAT [para 4]


M/s Mexim Adhesive Tapes Pvt Ltd Vs CCE (Dated: April 24, 2013)

CE - Valuation - Just because the appellant has mentioned "exclusively for industrial use" and "not to be sold in loose", Rule 34 cannot be compulsorily applied - unless an assessee claims exemption from printing MRP under Rule 34 of SWM Rules, the MRP is required to be printed and assessable value has to be determined under S. 4A of CEA, 1944 - since the issue is decided on merits in favour of the appellants, the question of penalty or confirm ation of demand does not arise - Appeal allowed: CESTAT [ paras 6, 7 & 8]



M/s Diamond Cements Vs CCE (Dated: March 26, 2013)

Central Excise - CENVAT Credit - Credit availed on the strength of debit notes - Debit notes containing the information like the service provider's name and address, service tax registration number, nature of service provided, value and service tax paid are valid documents for availing CENVAT Credit as held by the Tribunal in a number of judgements - Credit is allowed.


M/s Andhra Cement Ltd Vs CCE (Dated: February 19, 2013)

CENVAT CREDIT - Stay/Dispensation of Pre-deposit - CENVAT credit on GTA service - Outward transportation of final product (cement) from the factory to customers' premises - Prima facie case for the appellant for the period upto 31/03/2008 - Amended definition of input service under Rule 2(l) of the CENVAT Credit Rules, 2004 operates against the appellant for the period from 01/04/2008 - Appellant not entitled to CENVAT credit from 01/04/2008 - Predeposit of Rs.1 crore ordered.


M/s Dee Development Engineering Ltd Vs CCE (Dated: February 26, 2013)

CENVAT - Notfn. 50/2008-CE(NT) dated 31.12.2008 - supplies made to SEZ developers are not hit by the provisions of rule 6 of CCR, 2004 - benefit is to be extended with retrospective effect - appeal allowed with consequential relief: CESTAT [ para 4]


M/s Pramod Telecom (P) Ltd Vs CCE (Dated: January 11, 2013)

Central Excise – CENVAT Credit – Admissibility of CENVAT Credit on photocopy of the Courier Bill of Entry / Invoice - When common bill of entry in the name of several importers is filed by the courier agency and photocopies are given to the importers with the importers name appearing in it, the Cenvat credit cannot be denied to the importer on the ground that the original bill of entry in the name of importer was not

produced.

Credit on photocopy of the Central Excise invoices - Admittedly the photocopies on the basis of which the Cenvat credit has been taken are not the copies attested by the Jurisdictional Superintendent, Central Excise - The appellant are not eligible for the Cenvat credit taken on the basis of the photocopies of the invoices.


M/s Berger Paints India Ltd Vs CCE (Dated: March 20, 2013)

Central Excise – Education Cess is payable even if excise duty exempted – Refund of education cess is rightly denied by lower appellate authority – No merit in appeal.


M/s Indian Oil Corporation Ltd Vs CCE (Dated: March 8, 2013)

S.11DD of CEA, 1944 - Interest - by the time the duty paid petroleum products were sold to the customers by the Appellant the prices for the same had been revised upward by the Government and the appellant had recovered higher amount towards duty from the customers than the amount of duty which originally was paid - it is this differential amount which has been paid under Section 11D and for charging interest on the amount payable under Section 11D, specific provision was introduced w.e.f . 14.05.2003 by inserting Section 11DD - if the actual facts are as claimed by the appellant, the interest would be demandable only for the period from 14.05.2003 under Section 11DD and for the period prior to 14.05.2003 the interest would not be chargeable – there were no supplementary invoices issued and this observation is factually incorrect - since factual position has to be verified by adjudicating authority, matter remanded: CESTAT [ para 7]

Since interest is payable by automatic operation of law, limitation is not applicable: CESTAT [ para 8]


M/s Fortex Remedies Pvt Ltd Vs CCE (Dated: May 10, 2013)

Rule 173G of CER, 1944 – default - during the forfeiture period duty has to be paid only through Account Current (PLA) – payment through CENVAT is not permitted and any default would mean that the goods were cleared without payment of duty and consequences would follow - confirmation of demand and interest have been correctly made by Commissioner (Appeals) – in the matter of penalty, it is not obligatory to imposed equivalent penalty u/r 173Q as all transactions were recorded by the

appellant – penalty of Rs.1 lakh would meet the ends of justice: CESTAT [ paras 7 & 8]


M/s PMS Exports Pvt Ltd Vs CCE (Dated: July 6, 2013)

Central Excise - Registration - Denial of granting registration certificate and warehouse licence on the ground that earlier occupant of the premises did not surrender registration and is a defaulter of duty - Registration cannot be denied in view of the ratio laid down by the Bombay High Court in case of M/s Tata Metaliks Limited - Impugned order is set aside and the lower authorities are directed to issue Central Excise Registration Certificate as well as Warehouse License as prayed by the appellant in his application.


M/s Oracle Granito Ltd Vs CCE (Dated: February 15, 2013)

CENVAT - appellants are manufacturers of vitrified tiles and for facilitating display of the appellants' goods in New Delhi and various places they are paying rent to the owner's of the premises who pay ST under the category of ‘Renting of immovable property' - Chartered Accountant has certified that the expenses are co nsidered under the selling and distribution overhead which, understandably, goes into the costing of the final product – in this scenario, such services are to be considered as Input services u/r 2(l) of CCR, 2004 – Appeals allowed with consequential relief: CESTAT [ paras 10 & 11]


M/s GSL (India) Ltd Vs CCE (Dated: May 13, 2013)

CENVAT – Extra Low Sulphur oil (ELS) utilized as fuel for generating sets - there is no doubt about the fact that low sulphur diesel is environmentally cleaner than High Speed Diesel (HSD) but that is no reason to say that it is totally different from the HSD - Since the HSD is excluded from the purview of MODVAT credit eligibility, there is no reason to allow the MODVAT credit on Low Sulphur HSD - Since the MODVAT credit has been denied, the assessee also has to pay interest on the MODVAT credit demanded – non-imposition of penalty on the ground that there is no suppression of facts – no reason to interfere with this part of the order – Appeal disposed of: CESTAT [ paras 5 & 6]


M/s Sai Point Automobiles Pvt Ltd Vs CCE (Dated: May 13, 2013)

CE - Putting electrolytes and charging batteries of two -wheelers before delivery to customers prima facie does not amount to manufacture of TWO-WHEELERS – pre-deposit waived and stay granted: CESTAT [para 2]


M/s Rivaa Exports Ltd Vs CCE (Dated: March 14, 2013)

Central Excise – Compounded levy – Duty liability discharged under Notification No 33/2001 CE based on the length of embroidery machine – Whether Additional duty under Textiles and Textile articles is also required to be paid.



M/s Dalmia Cement (Bharat) Ltd Vs CCE (Dated: January 30, 2013)

CENVAT Credit - Stay/Dispensation of pre-deposit - Credit taken on parts and accessories of capital goods viz MS flats used for making conveyor belts, storage racks, MS pipes, angles, bolts, nuts etc. forming part of the plant and machinery - P rima facie it appears items were parts and accessories of capital goods or used as inputs for fabricating capital goods in the factory - No reason to deny CENVAT credit - Exact place of use of the impugned items could have been verified by making a visit to the factory - Pre -deposit waived and stay granted

CENVAT credit on welding electrodes used in maintenance and repair of machinery


M/s Hawkins Cookers Ltd Vs CCE (Dated: February 26, 2013)

Central Excise - CENVAT - Excess credit passed on by Dealer - Demand of excess credit availed - In view of the provisions of sub-rule (4) and (5) of Rule 9 of Cenvat Credit Rules, it was for the assessee to ensure that the duty paid mentioned in the invoices issued by the registered dealer was on pro-rata basis. Principle of caveat emptor would apply. The assessee is not eligible for the excess Cenvat credit passed

on by the dealer and extended period under proviso to Section 11A (1) of Central Excise Act, 1944 would be applicable. However, penalty under Rule 15 (2) of Cenvat Credit Rules, 2004 set aside. (Para 6)


M/s Shiva Texfabs Ltd Vs CCE & ST (Dated: April 25, 2013)

Central Excise – Stay/Dispensation of pre -deposit – Polyester Filament Tow/Polyester Staple Fibre obtained from Waste PET Bottles – Whether amounts to manufacture - For the period prior to the amendment in law i.e. prior to June, 2010, by inserting a Chapter Note in Chapter 54, the issue would be covered by the Tribunal's decision which is in favour of the appellant - For the period subsequent to June, 2010, the appellant have already deposited an amount of Rs.11.20 crores – Pre -deposit of balance amount waived.


M/s PMP Auto Components Pvt Ltd Vs CCE (Dated: March 22, 2013)

CENVAT – credit denied to the appellant along with imposition of equivalent penalty on the ground that the supplier has not paid the duty – appellant submitting that they have received the inputs in their factory and as per the deeming provision contained in rule 8(2) of the CER, 2002, about payment of excise duty and availment of credit, CENVAT cannot be denied even if duty has not been paid by the supplier – appellant has made out a case for total waiver of adjudged dues – Pre-deposit waived and stay granted: CESTAT [para 6]


Bulk Cement Corporation (India) Ltd Vs CCE (Dated: May 06, 2013)

CENVAT - Cement remaining in bulker – consignee purportedly issuing challans evidencing short supply – appellant taking credit of the duty paid on such quantity which was received back – since no documents produced by appellant to justify the availment of credit of Rs.37.48 lakhs, not a total case for waiver – Pre -deposit ordered of Rs.10 lakhs for obtaining stay: CESTAT [para 5]



M/s Jai Corporation Ltd Vs CCE (Dated: January 8, 2013)

Central Excise – Stay/Dispensation of pre -deposit - CENVAT Credit – CENVAT Credit on inputs received from EOU – Quantum of admissible credit - Appellant had been doing the calculation based upon the formula which has been mentioned in sub-rule (7) of Rule 3 of CENVAT Credit Rules, 2004 for the period June 2007 to February 2010 - Revenue authorities are not convinced with the formula which has been put into use by the appellant and has held that the appellant has availed excess CENVAT Credit - Appellant-assessee has not made out a prima facie case for complete waiver of pre-deposit of the amount of the duty demanded by the adjudicating authority – Rs 6 lakhs ordered to be deposited.


M/s Madhu Silica Pvt Ltd Vs CCE (Dated: April 17, 2013)

Central Excise – Stay/Dispensation of pre -deposit - 100% EOU – DTA clearances – Exemption under Notification No 23/2003 CE dated 31.03.2003 – Demand of duty as per Serial No 2 of the Notification on the ground that in respect of goods received from DTA, the suppliers have claimed deemed export benefit and such goods are to be treated as imported goods by the EOU – Applicant does not dispute the demand, but contends that the demand is time barred – Prima facie, in view of B 17 bond executed, demand cannot be treated as barred by limitation – Revision of duty demand from Rs. 1,33,22,958/- to Rs. 4,86,65,605/- - The corrigendum was issued only for correction of calculation error due to change in duty rates from time to time and no different grounds or change of issue has been made in the show cause notice as a result of corrigendum - The argument of the appellant that the corrigendum has changed the very basis of the demand is, prima facie not acceptable – Entire duty ordered to be deposited.


M/s United Phosphorus Ltd Vs CCE (Dated: January 19, 2013)

Central Excise – CENVAT Credit on services distributed by the Head Office as Input Service Distributor – Credit denied on the ground that the Head office has availed credit based on photocopies – Held: The debit notes contain the rate of service tax paid and service tax Registration Number – It is also seen that the service provider has issued the invoices addressed to Head Office of appellant at Bombay - There is no dispute on receipt of services at the Head Office – Denial of CENVAT Credit is not justified.


Sai Metaplast Vs CCE (Dated: January 13, 2013)

Rule 6 of CCR, 2004 - common inputs used in manufacture of dutiable as well as job worked goods cleared under exemption in terms of notfn. 214/86-CE - demand of 10% made in terms of rule 6(3)(b) of CCR, 2004 - demand for earlier period set aside by Tribunal and order accepted by Revenue and appellant had already received consequential refund also - following the same, order set aside and appeal allowed: CESTAT [para 3]


Satpda Tapi Parisar SSK Ltd Vs CCE (Dated: December 12, 2012)

Rule 6 of CCR, 2004 - Appellant engaged in manufacture of sugar and molasses - modat credit availed in respect of duty paid on molasses in their distillery section for further manufacture of ethyl alcohol - denatured ethyl alcohol cleared on payment of duty whereas potable ethyl alcohol captively consumed in manufacture of IMFL which is excisable - appellants reversing 8% of value of potable ethyl alcohol in terms of rule 57CC of CER, 1944 - demand raised on the ground that the appellant should have reversed the whole of the credit availed on molasses - issue is now settled by Tribunal in favour of appellant - order set aside and appeal allowed: CESTAT [paras 5 & 6]


CCE Vs Shree Tatya Saheb Kore Waran SSK Ltd (Dated: December 14, 2012)

Penalty - S. 11AC of CEA, 1944 – without specific allegation in the show-cause notice of fraud, collusion, willful mis -statement or suppression of facts etc. with intention to evade payment of duty, provisions of s. 11AC of the Act are not attracted – penalty not imposable – revenue appeal dismissed: CESTAT [para 3]


M/s Abhisek Plastic Industries Vs CCE (Dated: February 21, 2013)

Central Excise - Principles of Natural justice - Non-supply of the report of the Investigating Officer which was relied on in the Adjudication order to confirm the demand - Non-supply of the said report resulted in violation of the principles of natural justice and also would have bearing on the findings - The issue needs to be re-examined afresh, after handing over a copy of the said report to the Appellant - Matter remanded.


CC & CCE Vs M/s Siddhartha Marketing Services Ltd (Dated: January 22, 2013)

Central Excise - Review by Committee of Commissioners - Merely appending the signatures on the note sheet prepared by the Inspector/superintendent does not amount to review and is not sufficient compliance with the provisions of Section 35B - There is no independent recording of the fact that said Committee of Commissioners has gone through the impugned order and has arrived at a conclusion that the same need to be challenged before the Tribunal. Following the precedent decisions, it is held that the Revenue's appeal is not valid and the same is rejected.



M/s Monarch Catalyst P Ltd Vs CCE (Dated: January 23, 2013)

CENVAT - Rule 2(k) of CCR, 2004 - appellants are manufacturers of various chemicals - without installing effluent treatment plant and treating the gases effluents which emerges during the manufacture of chemicals, the manufacturing cannot take place - therefore, treatment of gas effluents is essential part of manufacturing of chemicals - sulphuric acid used for treatment of these gases effluents is an “input” - appellant has rightly taken CENVAT credit - order set aside and appeal allowed with consequential relief: CESTAT [para 4]


M/s Symphony Comforts System Ltd Vs CCE (Dated: May 3, 2013)

CE – Valuation – Principal to principal sale – no jobwork – Rule 10A of Valuation Rules not applicable: if any assessee manufacture final products, independently procuring inputs, paying for the same, utilizing his own manpower and sells the finished products to a purchaser based upon the price agreed between them, the said transaction will be covered by Section 4(1)(a) of the Central Excise Act, 1944. Trying to bring such type of transactions under provisions of Rule 10A of Valuation Rules, is not in consonance with the settled law, even if the finished products are sold at higher price by the buyer. We find that the application of Valuation Rules, 2000 need to be done in sequential manner and specific Rule needs to be applied. We find that by applying such norm , rule 6 of the Valuation Rules should the correct Rule, as it is more specific rule than the Rule 10A, for the purpose of valuation of the goods manufactured and cleared.

Cost of free issue moulds – amortised value to be added: the provisions of Rule 6

would apply in this case as the said provisions very clearly indicate that the cost of the free supply of moulds needs to be included in the transaction value, for the discharge of duty liability. The said cost of moulds has to be amortized and included in the value of goods manufactured and cleared.



CCE Vs Venus Industrial Corporation Ltd (Dated: January 16, 2013)

Central Excise - CENVAT Credit availed on Capital Goods on the strength of supplementary invoices - Capital goods originally imported by the supplier under EPCG and duty was paid due to non- fulfilment of export obligation - Exception under Rule 7(1)(b) is not applicable as it is not a case of suppression fraud, misstatement etc - Credit is admissible on supplementary invoice.

Ownership of Capital goods - It is settled law that ownership of goods is not criteria for availment of CENVAT Credit - Credit is admissible.


M/s Universal Cables Ltd Vs CCE (Dated: December 13, 2012)

Central Excise - Stay/Dispensation of pre-deposit - CENVAT Credit of Service Tax paid by service provider after verification of their records by the department - Credit denied on the ground that the invoices were issued after 14 days - Service tax demand itself against the service provider was dropped by the original adjudicating authority and that order of the original adjudicating authority was upheld by the Commissioner (Appeals) - The department's allegation that non-payment of service tax by service provider was due to fraud, wilful mis - statement, intentional contravention of rules is prima facie not sustainable - Pre -deposit waived.


J K Bhatia Vs CCE (Dated: March 22, 2013)

CE - Penalty - co-noticee paid the entire amount of duty, interest and 25% penalty within 30 days of issuance of the SCN - demand proceedings also included applicant as co -noticee - penalty is not imposable on applicants as per proviso to s. 11A(1A) of CEA, 1944 - appeals allowed: CESTAT [para 4]


M/s Castrol India Ltd Vs CCE & C (Dated: April 1, 2013)

CE – s.4 of CEA, 1944 – Undervaluation of lubricating oils in bulk - all the three show cause notices which raise the demand on the appellant are for the period beyond one year - since there is no difference of opinion between the Members that the demand which is confirmed by invoking extended period is liable to be set-aside on the ground of Revenue neutrality, instead of answering the difference of opinion, a single observation made will be enough to concur with the views of the Member (J) and there is no need to answer all the points of difference of opinion referred – third Member (J) on reference - Appeal allowed with consequential relief: CESTAT by Majority



M/s Hyundai Motor (India) Ltd Vs CCE (Dated: January 3, 2013)

Central Excise - Stay/Dispensation of pre-deposit - Valuation - Inclusion of Pre-delivery Inspection and Free after sales service charges in transaction value - Prima facie, the view taken by the Larger Bench in 2010 in case of Maruti Suzuki case has been impliedly overruled by the High Court in the case of Tata Motors Ltd - Following the ratio of High Court, pre -deposit waived.


Audco India Pvt Ltd Vs CCE (Dated: January 3, 2013)

Central Excise - Stay/Dispensation of pre-deposit - CENVAT Credit on outdoor catering service - The appellant should clearly plead the number of workers employed in the factory during the material period and they should also clearly state whether the cost of service was included in the cost of production of the final products, and if so to what extent. Appellant has not pleaded any of these - Pre-deposit ordered.


Sudarshan Motors Vs CCE (Dated: May 06, 2013)

CE - Putting electrolytes and charging batteries of two -wheelers before delivery to customers prima facie does not amount to manufacture of TWO-WHEELERS – pre-deposit waived and stay granted: CESTAT [para 3]


M/s Chintamani Lamination Vs CST (Dated: April 10, 2013)

Central Excise – CENVAT Credit on works contract and consultancy fee availed in Unit 1 of the appellant – Demand of credit on the ground that the services were received at Unit 2 – As per the definition of input services under Rule 2(l), there is no requirement that the service should be used within the factory – Further Unit 1 has sufficient balance of credit and invocation of extended period with intention to evade payment of duty is not sustainable – If the credit has been reversed in unit-1 and taken in unit-2, no further action on the part of Revenue would be necessary.


M/s Gold Star Pharmaceuticals Pvt Ltd Vs CCE (Dated: January 10, 2013)

Central Excise – Stay/Dispensation of pre -deposit – Demand of duty on undervaluation as well as clandestine removals - There is lot of evidence required to be examined which can only be done at the time of final disposal of the appeals - At this point that the appellants have not been able to make out a good prima facie case in their favour so as to dispense with the condition of pre-deposit of the entire amount – The appellant has admitted duty liability on the issue of MRP clearances – They also admitted that they have not been able to correlate the invoices issued by them with the excess invoices issued by their dealer to the extent of around 10% - No prima facie case made out for waiver of pre-deposit – 50% of the duty amount ordered to be deposited.


M/s Birla Tyres Vs CCE, C & ST (Dated: March 22, 2013)

Central Excise – Stay/Dispensation of pre -deposit - CENVAT Credit of AED ( Goods of Special Importance Act, 1957) utilized for payment of BED – Prima facie case made out for waiver of pre -deposit in view of the Tribunal decision in identical case.


Owens Corning (India) Pvt Ltd Vs CCE (Dated: February 11, 2013)

CENVAT - Appellant engaged in manufacture of glass fibre - appellant availed CENVAT credit in respect of ‘bushing' as parts of capital goods inasmuch as glass fibre is manufactured by drawing the molten glass through these bushings - appellant availed credit of 50% in the first FY and the balance in the subsequent FY - Revenue seeks to deny this credit on the ground that the ‘bushings' are not in possession and use of the appellant in the subsequent FY - appellant submitting that ‘bushings' after use were re-exported for re -making - goods in question are components and a s per rule 4(2)(b) of CCR, 2004, condition that the same should be in possession in subsequent FY is not applicable to components - credit correctly availed - order set aside and appeal allowed: CESTAT [paras 4 & 5]


M/s Thiru Arooran Sugars Ltd Vs CCE (Dated: December 14, 2012)

Central Excise – Stay/Dispensation of pre -deposit – CENVAT Credit on Rent-a-Cab, Telephone Service and Tour Operators' Service received at the corporate office – Prima facie, credit is admissible – Pre-deposit waived.


Honda Motor (I) Pvt Ltd Vs CCE (Dated: March 21, 2013)

Valuation - s. 2(f)(iii), s.4A of CEA, 1944 - import of motor vehicle parts and clearance to domestic market after repacking - there cannot be different Retail prices for purpose of CVD and for the purpose of Excise duty in respect of the same goods - there is no valid explanation by applicant regarding the lower MRP for purpose of excise duty - Pre-deposit ordered of the duty demanded: CESTAT [paras 8]



M/s Andrew Yule And Co Ltd Vs CCE (Dated: August 27, 2012)

Central Excise - Valuation - The fact that price lists submitted by the appellant were already approved is not in dispute - The Department could not show that the appellant had suppressed the material facts from the Department - The Commissioner has confirmed the demand on the ground that the Appellant did not produce the Agreement and suppressed the facts and undervalued the goods - However, the same was not alleged in the Show Cause Notice - Therefore, the Order of the Commissioner has travelled beyond the scope of the show cause notices - The demand-cum-show cause notices are hit by limitation of time and the impugned Order does not survive.


M/s Lubrizol Advanced Materials India Pvt Ltd Vs CCE (Dated: December 6, 2012)

Central Excise - Demand of duty on Cassia Meal arising in the course of manufacture of Cassia gum - Cassia Meal sold as cattle feed supplement/cattle feed - Whether eligible for exemption under Sl No 21 of Notification No 23/2003 CE as “ Waste from food Industry” - Held: Cassia meal is not a waste at all and is excisable, the appellant is not eligible for exemption under notification No.23/03 which under sl.no.21 exempts waste from food industries arising from purchasing of indigenous raw material.


M/s Devi Iron & Power Ltd Vs CCE (Dated: January 28, 2013)

Central Excise – Stay/Dispensation of pre -deposit – CENVAT Credit on irons and steel items used as supporting structures in the factory - It is well settled that when the legal issue stand against the assessee and there is no financial difficulty in depositing the amount in question, the interest of the Revenue is required to be protected – Pre -deposit ordered.


Gemini Instratech Pvt Ltd Vs CCE (Dated: February 13, 2013)

CE - Windmill Doors are used with the tower on which the wind operated electricity generators are installed - revenue is not denying the benefit of notification 3/2001-CE & 6/2002-CE in respect of tower, hence the doors which are a part of the tower are also entitled for exemption - CCE, Raipur has held that the towers support the propellers/rotors which are essential components of the wind operated electricity generators and, therefore, the towers are also to be treated as part of the wind operated electricity generators and benefit is to be extended - those orders have not been challenged - apex court order in Nicco Corporation concerned notification 205/88-CE which provided exemption in respect of wind mill and devices which run on the wind mill & in such a scenario the benefit of exemption was denied to wires & cables - wording of the notification under consideration are different - ratio of apex court decision is not applicable - Order set aside and appeal allowed: CESTAT [paras 12 & 13]



Kog-Ktv Food Products India Pvt Ltd Vs CCE (Dated: January 3, 2013)

Central Excise - Stay/Dispensation of pre-deposit - CENVAT Credit on structural material such as MS Tubes, MS Channel, HR Coil etc used for fabrication of Storage Tank - Prima facie, credit is admissible despite the fact that storage tax is an immovable property - Pre -deposit waived.


CCE Vs Mahavir Group Of Industries (Dated: January 21, 2013)

SSI exemption - Clubbing of units - SCN issued to Mahavir Group of Industries, Rupani Metal Reed Manufacturing Works, Rupani Textile Industries, Rupani Trading Company and to individuals for clubbing the clearance values - adjudicating authority dropping the demand - revenue filing only one appeal against Mahavir Group of Industries - other units whose clearances the Revenue wants to club, Revenue has not filed any appeal - in absence of the same, appeal dismissed: CESTAT [paras 7 & 8]


Josts Engineering Co Ltd Vs CCE (Dated: February 14, 2013)

CENVAT - Appellant manufactures both dutiable and exempted goods - Exempted goods cleared without maintaining separate records of input services - Reversal of the entire “Input Service” Credit taken along with interest amounts to non-availment of credit and suffices for the purpose of Rule 6 of CCR, 2004 - no cause for payment of any amount in terms of rule 6(3) of CCR, 2004 - however penalty imposable u/r 15(3) of Rs.2000/- - Appeal disposed: CESTAT [paras 5.2 & 6].



M/s Ratnamani Metals & Tubes Ltd Vs CCE (Dated: February 7, 2013)

Central Excise - ROM - The question that arises before the Tribunal is whether the Tribunal is required to come to the rescue of an assessee who over the period of 13 years did not take note of or considered whether there was a case on merit or not and was fighting the case on a technical ground that there was no recovery mechanism and there was never a whisper about merits - Even when the impugned order was passed the only submission made by the assessee was that the show-cause notice was time barred which has been considered and discussed while passing the order - Even if there is a mistake in the order, it is not a mistake committed by this Tribunal nor can it be said that it is apparent from the records and there is no merit in the application and accordingly the same is rejected.


CCE Vs M/s Parle International Ltd (Dated: December 20, 2012)

Refund - fact that the amount was not collected as part of the duty by showing in the invoice but was paid under protest during the course of investigation and after the investigation would show that the appellants could not have collected this amount from the customers – from the balance sheet and the CA certificate it can be concluded that the respondent has discharged the obligation cast on him to show that there was no unjust enrichment in this case – it is a rebuttable evidence and once this evidence was produced it was for the Revenue to come out with any evidence to show this claim to be false – appeal filed by Revenue is rejected as devoid of merits: CESTAT [para 5]


M/s Haldia Petrochemicals Ltd Vs CCE (Dated: January 7, 2013)

Central Excise - Whether the Residual Fuel Gas (RFG) generated during the course of cracking of Naptha and sent by the Applicant to M/ s.HPLCL , situated in the same factory premises, resorting to the procedure laid down under Rule 57AC(5)(a) or 4(5)(a) of the Central Excise / CENVAT Credit Rules, for conversion into electricity and steam and brought back to their factory and used in the manufacture of finished excisable intermediate product, was liable to excise duty – Prima facie case made out for waiver of pre-deposit in view of the earlier decision in favour of the applicant.


Magnewin Magnetics Vs CCE (Dated: April 2, 2013)

CE - S.11AC of CEA, 1944 - Appellant has been given an opportunity of reduced penalty in the o-in-o itself, hence the question of giving the same once again does not arise - inasmuch as since the appellant had made only part payment and not the full amount of duty confirmed, the question of quantifying the interest amount does not arise - interest is a consequential liability and has to be discharged by the appellant on his own - it cannot be said that in all cases of duty demands, the department should specify the interest amount also, especially when the date of payment of duty on a subsequent period is not known - contention that interest amount should be computed and should be communicated to them and, thereafter, they will discharge the same within a period of 30 days from the date of such communication and the benefit of reduced penalty of 25% should be allowed to them has no merit - mandatory penalty cannot be reduced by an appellate authority - appeal dismissed: CESTAT [paras 5 & 6]



M/s Bajaj Hindustan Ltd Vs CCE (Dated: January 18, 2013)

Central Excise – CENVAT credit on capital goods – MS Angle, Channels, Joists etc used for fabrication of evaporation plant meant to reduce the affluent – In view of Karnataka High Court judgement in the case of CCE, Bangalore - II vs. SLR Steels Ltd and the Apex Court judgment in the case of CCE, Jaipur vs. Rajasthan Spinning & Weaving Mills Ltd has held that the steel items used in fabrication of pollution control equipment would be eligible for Cenvat credit and the Cenvat credit cannot be denied just on the ground that the pollution control equipment is embedded in the earth – Credit is admissible.


M/s Hindustan Petroleum Corpn Ltd Vs CCE (Dated:June 7, 2013)

Central Excise - Manufacture - Blending of Multifunctional Additives in ordinary petrol or high speed diesel does not amount to manufacture as it does not bring about a new distinct product - Impugned order demanding duty is set aside.


M/s TTK Prestige Ltd Vs CCE (Dated: January 2, 2013)

Central Excise – Stay/Dispensation of pre -deposit – CENVAT Credit of service tax paid on advertisement, sales promotion and chartered accountant's service – Prima facie case made out for waiver of pre-deposit, inasmuch as these are services expressly mentioned in the inclusion part of the definition of "input service" under Rule 2(1) of the CENVAT Credit Rules, 2004 – Pre -deposit waived.


M/s Hero Motocorp Ltd Vs CCE (Dated: March 21, 2013)

Central Excise - CENVAT Credit on Broadcasting service, Fashion Designing Service, Online data base access/retrieval service, Share transfer agent services and Asset portfolio/fund management service - Matter remanded to the Adjudicating Authority to conduct inquiry from the end of service provider in respect of such services and enquire whether contract between the parties exist and the service intended to be provided was whether used for manufacture or providing output service.


Pratam Fab Processors Pvt Ltd Vs CCE (Dated: February 8, 2013)

Credit taken of the "Value" of the goods on 58 occasions cannot be treated as a bona fide mistake - equivalent penalty rightly imposed - Appeal dismissed: CESTAT [paras 8 & 9]


Tata Iron And Steel Co Ltd Vs CCE (Dated: March 22, 2013)

CE - Valuation - appellant receiving duty paid billets from Jamshedpur unit, value of which was determined as 115%/110% of cost of production - AV of wire rods manufactured out of these billets should be 115%/110% of the cost of production of billets and not the cost of raw material consumed for manufacture of billets - While taking CENVAT credit of the duty paid on billets, appellants recognize the cost as 115%/110% of the cost of production which is noth ing but a conscious and positive act on the part of appellant - Short payment of duty by undervaluation of wire rods is equally a conscious and positive act of suppression of facts on the part of the appellant - raising a hypothetical question and taking shelter of revenue neutrality does not come to the appellants' rescue - Duty demand of Rs.8.61 Crores upheld along with penalty: CESTAT [paras 6.1, 6.2, 6.3, 6.4, 6.5 & 7]



M/s Alstom T&D India Ltd Vs CCE & ST (Dated: December 14, 2012)

Central Excise - CENVAT credit availed without proper documents as prescribed under Rule 9(1) of the CENVAT Credit Rules, 2004 - As a prudent and experienced central excise assessee the appellant would have noticed the defects but still they chose to take credit without disclosing the defects to the department - Demand of credit under extended period is upheld - Penalty under Section 11AC reduced to 25% if paid within 30 days.


M/s Zydus Nycomed Healthcare Pvt Ltd Vs CCE (Dated: December 7, 2012)

Rule 2(l) of CCR, 2004 - Setting up, modernization, renovation or repairs of a factory premises were covered under the definition of Input services during the period December, 2009 to July, 2010 – prima facie case made for total waiver of pre-deposit – Stay granted: CESTAT [para 5]


Kooverji Devshi & Co Pvt Ltd Vs CCE (Dated: March 12, 2013)

CE - Notfn. 6/2002-CE, 6/2006-CE - Exemption for Special Purpose Vehicles - benefit denied on the ground that no duty is payable on equipments - appellant purchasing duty paid chassis and other duty paid items are procured from the market and from some of which equipments like fire engine pump, foam proportioner, water and foam tank and cat ladder are fabricated - adjudicating authority not considering the above contentions made by the appellant - matter requires re -consideration in view of the apex court decision in Indian Hydraulics Industries - appeal allowed by way of remand: CESTAT [para 10]


M/s KCP Sugar And Industries Corporation Ltd Vs CCE, C & ST (Dated: January 28, 2013)

CE - Bagasse is a marketable product, not a manufactured product - Rule 6(3)(b) of CCR not applicable - The appellant is engaged in the manufacture and clearance of sugar and molasses, both of which are dutiable products. Bagasse is the waste generated in the process of crushing of sugarcane (raw material). In the wake of the amendment brought to the definition of "excisable goods" under Section 2(d) of the Central Excise Act, the department issued a show-cause notice to the assessee alleging that bagasse was an "exempted" final product which was cleared without payment of duty during the material period and further that no separate accounts/inventory were maintained by the assessee in respect of the common inputs and input services used in or in relation to the manufacture of the dutiable and "exempted" final products during the said period and, therefore, demanding that 10%/5% of the sale price of bagasse sold out during the period of dispute be paid by the assessee in terms of Rule 6(3)(b) ibid. The impugned order was passed in adjudication of this show-cause notice.


M/s Jain Manufacturers Vs CCE (Dated: April 10, 2013)

Central Excise - Refund claim filed consequent to the favourable order by the Tribunal - In view of the amendment to Section 11 B in 2007 to prescribe the date of order of the Tribunal as relevant date, the refund claim filed by the appellant has to be treated as barred by limitation - No error in the order of Commissioner (Appeals).


Hindustan Petroleum Corporation Ltd Vs CCE (Dated: March 07, 2013)

CE - Duty on petroleum product on 6.9.2004 when facility of removal of petroleum products without payment of duty from refineries to warehouses was withdrawn - Appellant submitting that BPT pipeline belongs to Bombay Port Trust and hence duty cannot be demanded from them and the Pirpau pipeline is within the factory and hence the petroleum products lying therein have been recorded in the inventory and duty was paid upon removal - demand of Rs.3.51 crores set aside and matter remanded for factual verification: CESTAT [para 5]


M/s Gujarat Engineering Works Vs CCE (Dated: April 10, 2013)

Central Excise - Refund - Refund of amount paid during the investigation consequent to the favourable order by the Tribunal - Refund rejected on the ground of time bar - Since the amount was deposited during investigation, it cannot be treated as duty to apply the provisions of Section 11B - Lower authorities have erred in rejecting the refund.


M/s Garrison Polysacks P Ltd Vs CST (Dated: April 9, 2013)

Central Excise - CENVAT Credit on inputs received from a 100% EOU - Demand of excess CENVAT Credit than the admissible credit as per Rule 3(7) of the CENVAT Credit Rules, 2004 - Excess credit reversed by the appellant - Liability to pay interest and equal penalty under Section 11AC under extended period - Issue was noticed only by the second audit party while the first audit did not raise any objection - No case for invoking extended period - Demand of interest and penalty set aside.


M/s Alembic Ltd Vs CCE (Dated: January 2, 2013)

Central Excise - MODVAT Credit denied on the ground the credit on inputs sent to job-worker was availed after nine months as stipulated under Rule 57G( 5) - As soon as the assessee received the duty paying documents in respect of inputs which were sent directly to the job-worker, the assessee took the credit of goods in RG23 Part I and accounted for them. However, as envisaged under Rule 57G, the assessee did not take credit of duty paid since credit could be taken only after the inputs were received in the factory - If credit of the goods has been taken in RG 23 Part I, the obligation under Rule 57G has to be considered to have been fulfilled - No order of the Tribunal or any high judicial forum taking a contrary view has been produced - Appeal allowed.


M/s Interplex Electronics India Pvt Ltd Vs CCE (Dated: January 16, 2013)

CE - Cenvat Credit - Entitled for credit on services as Commission agent & GTA services for the relevant period - Following the decision rendered in the case of Metro Shoes Pvt. Ltd., the Tribunal, in the case of Lanco Industries Ltd. Vs. CCE, Tirupati - (2009-TIOL-1999-CESTAT -BANG) held that, as the sales commission had been paid by the assessee to the commission agent only in respect of the sales made through the commission agent, the services rendered by the commission agents to the assessee fell within the definition of "input service" under Rule 2(l) of the CCR 2004.

GTA: The High Court held that, notwithstanding the Board's clarification in Circular No. 97/8/2007-ST dated 23.08.2007, transportation of final products from the place of removal stood within the ambit of the definition of input service prior to 01.04.2008. The benefit of the High Court's decision is available to the appellant and therefore the impugned order is set aside and this appeal is allowed.


CCE Vs Astik Dyestuff P Ltd (Dated: March 1, 2013)

CENVAT Credit - Rule 2(l) of CCR, 2004 - No distinction can be made between the commission paid to the foreign agent and the agents operating within the territory of India because nature of services provided by both the categories of the agents are same - commission agent is directly concerned with the sales rather than sales promotion - services provided by such commission agent would not fall within the purview of the main or inclusive part of the definition of input service as laid down in rule 2(l) of the Rules - activity of commission agent, therefore, should bear some similarity to the illustrative activities given in rule 2(l) - none of the illustrative activities, viz.. "accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, is in any manner similar to the services rendered by commission agents nor are the same in any manner related to such services - Under the circumstances, though the business activities mentioned in the definition are not exhaustive, the service rendered by the commission agents not being analogous to the activities mentioned in the definition, would not fall within the ambit of the expression "activities relating to business" - Sales commission services are not Input Services - CENVAT credit not available - Revenue appeal allowed: CESTAT [ paras 4 & 5]



M/s Ultratech Cement Ltd Vs CCE (Dated: September 18, 2012)

In the Finance Bill, 2008, as introduced in the Parliament on 29-2-2008, the item, cement was not figuring in the Seventh Schedule - there was no proposal in the

Finance Bill for increase in the tariff rate of duty on cement and the proposal made in the clause 84 of the Finance Bill for amendment in the First Schedule to the CETA, did not cover cement - the declaration made under PCTA has to be read with reference to clause 84 of the Seventh Schedule which existed at the material time and the same cannot be automatically applicable to the subsequent amendment - When the clause of Finance Bill, 2008 through which the rate of duty was enhanced, was not mentioned in the declaration under the Provisional Collection of Taxes Act, 1931 (PCTA), duty at enhanced rate cannot be collected invoking the PCTA till the enactment of Finance Bill - unless a declaration with reference to a particular provision has been made in the Bill, it cannot be considered to be a declared provision and consequently, the provisions of the PCTA cannot be made applicable thereto. [paras 6.4, 6.5, 6.6, 6.9]


I G Petrochemicals Ltd Vs CCE (Dated: January 21, 2013)

Steam produced used for generating electricity in TG-3 generating set which is sold outside the 100% EOU and not for manufacture of goods exported - applicants are clearing steam on payment of duty to outside unit - therefore, prima facie, there is no merit in the contention that the steam is waste steam and is not marketable - Pre-deposit ordered: CESTAT


M/S Ferro Cast Industries Vs CCE (Dated: January 7, 2013)

CE - Allegation of receipt of invoice without goods - pre-deposit ordered: the applicant received scrap on the basis of invoices issued by M/s. Leadsman Enterprises. The proprietor of M/s. Leadsman Enterprises in his statement admitted that he had not received any scrap from M/s. Karpagam Steel, M/s. Sky & Sky Corporation but only received invoices. It is also stated that he has supplied only scrap material to the applicant purchased from open market. Thus, it is apparent that the goods received by the applicant from M/s. Leadsman Enterprises are not duty paid. Prima facie, there is connivance between the applicant and the dealer. It is noted that the adjudicating authority also imposed penalties on all the persons involved in the racket of "illegal dealer invoices". Hence, the applicant failed to make out a prima facie case for waiver of pre-deposit of entire amount of duty and penalty. Accordingly, the applicant is directed to deposit 50% of duty within eight weeks.


Elpee Chemicals Pvt Ltd Vs CCE (Dated: February 8, 2013)

CENVAT - Appellant availing CENVAT on furnace oil which is used in manufacture of job worked goods - CENVAT denied on ground that goods cleared under exemption notification 214/86-CE - since the appellant has produced a certificate from the principal that the job worked goods cleared under notfn. 214/86-CE are further used in manufacture of final products cleared on payment of duty, appellant has made out a case for total waiver of pre -deposit of dues - Stay petition allowed: CESTAT [para 6]


M/s Agni Steels Ltd Vs CCE (Dated: January 31, 2013)

Central Excise - Stay/Dispensation of pre-deposit - CENVAT credit on welding electrodes, MS Angles, CTD bars and rods - Issue of CENVAT Credit on welding electrodes used in maintenance and repair of machinery stands referred to Larger Bench - Since these issues are still under dispute before many courts and the matter is yet to be finally resolved by the higher forums, full waiver of pre-deposit granted.


M/s Cema Electric Lighting Products India Pvt Ltd Vs CCE (Dated: April 9, 2013)

Central Excise - CENVAT Credit on outdoor catering service to the extent of amount recovered from the employees - Credit is not admissible - Demand of credit under extended period is upheld.


M/s Monarch Catalyst Pvt Ltd Vs CCE (Dated: March 08, 2013)

CENVAT - Rule 2(l) of CCR, 2004 - Video shoot of company manufacturing facility - Service Tax paid by Event Management Company is an Input Service as it is meant for promoting business of company - Stay granted: CESTAT


M/s Priya Dyers And Ors Vs CCE (Dated: September 25, 2012)

Central Excise - Applicant for Restoration of Appeal- Appeal dismissed for non-compliance of order of pre-deposit - Since the assessee's challenge of stay order of Tribunal has been dismissed by Hon'ble High Court, nothing survives. Subsequent request made by the assessee for restoration of appeals does not help to further his case, as, the order of Tribunal stands upheld by higher judicial forum. (Para 7)


M/s Pace Printers Pvt Ltd Vs CCE (Dated: December 21, 2012)

CE - Stay application filed on 29/11/2011 has not yet come up for hearing before the Tribunal – in such a scenario, Revenue officers are directed not to take any coercive steps towards recovery of confirmed dues till final disposal of the Stay application: CESTAT [para 3]


M/s Pamis Tex Pvt Ltd Vs CCE (Dated: February 26, 2013)

CE - if it is the case of the Revenue that the appellant has used imported polyester chips for clandestine manufacturing and clearing of polyester yarn, it is for them to provide the evidences regarding the consignment which were imported and consigned to the appellant – appellant seeking copies of B/E for availing CENVAT credit – lower authorities have not responded to these pleas – matter remanded without expressing any opinion on merits with directions to provide appellant with copies sought– appellant not to claim refund of amount deposited during investigation: CESTAT [ paras 7, 8 & 9]



M/s Vema Metals & Conductors Ltd Vs CCE (Dated : November 29, 2012)

Central Excise – Job work for BHEL under Notification No 214/86 CE - Appellant undertaking conversion of Copper Wire Bars into Rectangular Copper Bars and has to return 98% of the material with 2% burning loss – Appellant instead of re -processing cut ends and scrap which is nearly 16%, buying Copper Wire Bars from outside and reversing the proportionate CENVAT Credit – Revenue demanding duty based on Ujagar Prints case.

Held: Since the appellant were required to return 98 Kg of rectangular bars out of every 100 Kg of copper wire bars received from BHEL and the procurement of copper wire bars from outside to the extent of 16% was in lieu of the sale of copper waste to the extent of 16%, the copper bars procured from outside have to be treated as owned by BHEL and since CENVAT credit in respect of the same has been availed by the appellant, they would be liable to pay duty on the rectangular bars manufactured out of the same, and this duty would be payable on the value determined in terms of the Apex Court's judgment in the Ujagar Prints case – Demand of duty under extended period is upheld.


M/s Pioneer Spinners Vs CCE (Dated: February 1, 2013)

PSU-Government Disputes - Past cases not to be restored - (2012-TIOL-1974-CESTAT -DEL-LB) followed : The issue whether appeals which were already considered by the Committee on Disputes and a decision taken not to allow either side to pursue

further appellate remedies, the matter can be reopened in the light of the decision in the case of Electronics Corporation of India, was decided by the Larger Bench of the Tribunal in Burn Standard Co. Ltd. Vs. CCE - (2012-TIOL-1974-CESTAT -DEL-LB). Since the matter is no longer res integra, follow the decision of the Larger Bench of the Tribunal and dismiss this ROA application.


CCE Vs M/s Parry Enterprises India Ltd (Dated: January 15, 2013)

Central Excise - CENVAT - Input Service - Insurance to employees - The assessee is eligible to avail CENVAT Credit of Service Tax paid on the services rendered by insurance company on the group insurance taken by them for their employees. (Para 4)


M/s Pragati Glass Pvt Ltd Vs CCE (Dated: January 17, 2013)

Central Excise - CENVAT - Used Capital goods cleared - Quantum of reversal of credit - The machines which are cleared after utilization cannot be treated as machines cleared as such. The actual amount of credit availed at the time of procurement of capital goods need not be reversed.(Para 5)


Glamour Tin Industries Pvt Ltd Vs CCE (Dated: February 11, 2013)

CE - Valuation - applicant engaged in the manufacture of tins/metal containers on job work basis for Raptakos Brett & Co. Ltd. and paying duty on cost construction method - Revenue alleging that valuation should be on the basis of Rule 10A of Valuation Rules, 2000 as applicant is manufacturing goods on behalf of the principal - applicant submitting that the metal containers manufactured on job work basis are returned to the principal who further use them for packing of their final product - it is not the case that the principal sells the metal containers - applicant has made a strong prima facie case in view of Tribunal decision in Indian Extrusions - (2012-TIOL-553-CESTAT -MUM) - pre-deposit waived and stay granted: CESTAT [para 5]


CCE Vs Dhnyaneshwar Ssk Ltd (Date of Decision: February 28, 013)

CE - ROM application by Revenue - ‘date of order' mentioned in Section 35C(2) of the CEA, 1944 means the date of communication of order - since communication has been completed only on 20/06/2011, application filed on 12/09/2011 is not time barred:

CESTAT [para 5]

Input is something which is required in or in relation to the manufacture of final products - molasses cannot be considered as input for manufacture of sugar - duty paid on molasses cannot form part of the credit for the purpose of payment of duty on sugar - however, instead of allowing the appeal filed by Revenue, Tribunal committed an error by dismissing the appeal - there is merit in ROM filed by Revenue - sentence in earlier order substituted with appeal succeeds and is allowed and the matter is remanded back to adjudicating authority for re -determination of demand: CESTAT [para 9]



M/s S K Trading Company Vs CCE (Dated: November 14, 2012)

Notfn. 61/90-CE - Bridge Builder Systems fabricated at a place nearby the Creek at which the bridge is to be built as per the contract awarded by the Government of Maharashtra - Board has clarified that the expression ‘site' may not be given a restrictive meaning and shall include any premises made available to the manufacturer of goods falling under SH 7308.50 - benefit of notification available - order set aside and appeals allowed with consequential relief: CESTAT [paras 7 & 8]


M/s Sanmar Foundries Ltd Vs CCE (Dated: February 1, 2013)

CE - CENVAT Credit - Prima facie, the helicopter is an asset in the balance sheet of the appellant company. Maintaining such assets in good condition is part of the business of the appellant: The company would have invested in the helicopter because it was needed for their business activity and it also saves the precious time of its Managing Director which is essential for the appellants business. In the case of Rent-a-Cab Service, where money has been recovered from the employees, prima facie there is no reason to claim CENVAT credit on such amount. Pre-deposit of Rs. 10,000 ordered.


M/s Mittal Pigments Pvt Ltd Vs CCE (Dated: December 24, 2012)

Central Excise – Manufacture – Re-packing of chemical “cerium chloride” – Denial of CENVAT Credit on the ground that the process of re -packing does not amount to manufacture - The cerium chloride is an inorganic chemical classifiable under tariff heading 28469090 of the Central Excise tariff - The chapter note 9 to chapter 28 provides that in relation to products of this chapter, labelling or relabeling of containers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the customer, shall amount to

manufacture – Credit cannot be denied.

Even if process undertaken is treated as not amounting to manufacture, since undisputedly the appellant have paid duty on 25 kg. pack, which is more than the CENVAT credit availed the payment of duty has to be treated as reversed of CENVAT credit as the Department cannot proceed to demand CENVAT credit again in respect of input.


M/s Needle Industries (India) Pvt Ltd Vs CCE (Dated: January 9, 2013)

CE - Classification of ' Atraumatic Needles- (Eyeless) - Pre-deposit waived: For extending the benefit of Exemption under Notification No.6 /2006-CE, dated 01.03.2006 (S.No.59 of the Table to the Notification), three issues are to be decided. The first issue is the 'classification of the product' being cleared from the factory of the appellant. Second issue is the classification of 'needled sutures' in the manufacture of which the impugned item is used and the third issue is whether the impugned goods can be considered as 'part of needled sutures'. The only issue to be decided is whether the item which is specified in a Tariff Entry can be considered to be part of another item for the purpose of an exemption notification. In prima facie view, ' Atraumatic Needle (Eyeless)' is a part required for manufacturing 'needled sutures'. On a perusal of the different entries in the said notification it is seen that wherever there is an intention to restrict the scope of exemption to specified parts it is done by specifying the classification of the goods in column 2 of the Table attached to the notification. In this case the impugned goods satisfy such condition. Therefore, prima facie, strong merit in the arguments of the applicant. waiver of the dues arising from the impugned order for admission of appeal and stay recovery thereof during the pendency of the appeal granted.


M/s Turbo Energy Ltd Vs CCE (Dated: January 15, 2013)

CE- CENVAT Credit on Education Cesses paid on CVD and the Additional Customs Duty paid under Section 3(5) of the Customs Tariff Act (SAD) in respect of the inputs received from 100% EOUs.: there is no warrant to treat the term CVD referred to in Rule 3 (7) of the Cenvat Credit Rules as applicable only to additional duty leviable under Section 3(1) of the Customs Tariff Act. The term CVD has not been specifically defined in the Cenvat Credit Rules, but it has been explained that "BCD & CVD denote advelorm rates in per cent, of basic customs duty and additional duty of customs leviable. Full waiver of pre-deposit of demand of over Rs. 6 Crores granted.


M/s Voltamp Transformers Ltd Vs CCE (Dated: January 23, 2013)

Central Excise - CENVAT - Process loss at Job-worker - Demand of CENVAT on process loss - There cannot be demand of CENVAT Credit in respect of process loss at the end

of job worker. (Para 10 & 11)


M/s Bata India Ltd Vs CCE (Dated: January 8, 2013)

Service Tax - The denial of credit on the ground that the services rendered in Corporate Office and RDCs had no nexus with the manufacturing activity, prima facie, cannot be acceptable; The applicant is a manufacturer of footwear. They availed CENVAT credit on 'inputs' as well as 'input services', which included the 'service tax credit' based on the challans issued for distribution of service tax credit by their Corporate Office and their various Regional Distribution Centres (RDCs). The nature of services on which credit has been taken under the category of services viz., Transport, Courier, Car Hire, Telecom, Maintenance, Maintenance & Repair, C&F Agent, Warehousing, Advertising Agency etc. It has been alleged that the applicant is ineligible to avail credit under the definition of 'input services' under Rule 2(l) of CENVAT Credit Rules, 2004, as the services were rendered at the Corporate Office and RDCs other than factory premises and, therefore, not used by the manufacturer.

Input service credit on transportation from depot to retail outlets, prima facie not eligible - Pre -deposit of Rs. 15 Lakhs ordered : The applicant filed this application for waiver of pre -deposit of CENVAT of Rs.2,72,53,011/-. Find force in the submission of the learned AR of Revenue insofar as, the ineligibility of credit on the input service credit on transportation from depot to retail outlets.


Alarsin Vs CCE (Dated: March 1, 2013)

CENVAT - ST - appellant has two units, one at Mumbai and the other in Surat - Input Service Tax credit relating to BAS has been taken entirely in Mumbai unit - Revenue alleging that Input Service relating to Surat unit cannot be taken in Mumbai unit - appellant submitting that such a provision has come into force from 2012 only - keeping in view facts and circumstances of the case, pre -deposit ordered of 25% of disputed credit: CESTAT [para 3]


M/s Hotline Electronics Ltd Vs CCE (Dated: December 3, 2012)

CE - VCD players cleared for free supply along with sale of CTVs – appellant's contention that MRP of VCD is to be taken as ‘nil' is totally incorrect - issue of levy of duty under Section 3 of the CEA, 1944 on the clearance of the goods manufactured by an assessee cannot be mixed with the issue of valuation under Section 4 or 4A – Since during the period of dispute the MRP of the VCD were not available, the same has to be ascertained by adopting a reasonable criteria - since the VCD players were cleared without discharging duty liability, penalty under Rule 25(1)(a) of CER, 2002 would be attracted – matter remanded to adjudicating authority: CESTAT [paras 6, 7,

8, 10 & 10.1]



M/s Sri Ranganathan Industries Pvt Ltd Vs CCE (Dated: February 01, 2013)

Central Excise – CENVAT Credit – Capital goods removed after use – Appellant reversed credit by applying depreciated value – Revenue contention that at the time of removal, there was no provision in Rule 3 of the CENVAT Credit Rules to allow depreciation is not sustainable in view of orders of various High Courts.


M/s Sanghi Threads Pvt Ltd Vs CCE (Dated: January 17, 2013)

CE - CENVAT Credit - Endorsed invoices, not prescribed document - Predeposit of entire amount ordered: The denial of the credit is on the ground that the relevant invoices were not issued to the appellant by the manufacturer of inputs. The invoices were issued to the appellant's job worker and the latter made endorsements thereon. The endorsed invoices were used by the appellant to take the CENVAT credit in question. If the manufacturer of inputs had issued the invoices to the appellant (principal manufacturer of final product) while sending the goods to the latter's job -worker, it would have been consistent with the established trade practice. In the instant case, the manufacturer of inputs sent the goods along with invoices to the appellant's job worker and the latter made endorsements on the documents. The invoices so endorsed do not figure in the list of documents prescribed under Rule 9. Therefore, the appellant has failed to make out a case on merits. Pre -deposit Ordered.

2013-TIOL-614-CESTAT -DEL-LB

Kumar Arch Tech Pvt Ltd Vs CCE (Dated: February 22, 2013)

Education cess and S&H cess would be chargeable only once under Section 93 of Finance Act, 2004 and Section 138 of Finance Act, 2007 on the sum of basic customs duty and Additional customs duty - duties payable on goods cleared into DTA from a hundred per cent export oriented unit should be on par with the duties payable on goods imported from abroad into the country. There can be no objection for double taxation if the legislature has distinctly enacted it, but while interpreting general words of taxation the same cannot be so interpreted as to tax the subject twice over to the same tax. Since the DTA clearance of a 100% EOU attract central excise duty and in terms of proviso to Section 3(1) of Central Excise Act, 1944, the measure of the excise duty leviable is aggregate of duties of customs charged on import of like goods into India under Customs Act, 1962 read with Indian Customs Tariff Act, 1975 or any other law

for the time being in force, this aggregate of duties of customs on which education cess under Section 93 of Finance Act, 2004 and S&H cess under Section 138 of Finance Act, 2007 is to be charged, would not include education cess and S&H cess under Section 94 of Finance Act, 2004 and Section 139 of Finance Act, 2007. The intention of the legislature was never to charge education cess on education cess. In fact this is not permissible from very mode of this levy as prescribed in Section 91 of the Finance Act, 2004 and Section 136 of the Finance Act, 2007, as when a new tax is introduced as surcharge on the existing levies, the base on which the new levy as surcharge is to be calculated will include only the existing levies, not the new levy. If the Revenue's stand is accepted, and on the sum of Basic customs duty and Addl. Customs duty, first "cess on imported goods" under Section 94 of Finance Act, 2004 and Section 139 of Finance Act, 2007 is charged as duty of customs and on the aggregate of duties of customs, "cess on excisable goods," under Section 93 of Finance Act, 2004 and Section 138 of Finance Act, 2007 is charged, it would amount to charging education cess on education cess for which there is no sanction in law. In Vikram Ispat (2002-TIOL-32-CESTAT-DEL-LB) the Larger bench has held that the duty chargeable on the DTA clearance of a 100% EOU is a central excise duty and the method adopted by the law makers in recovering this duty cannot alter its character and what the proviso to Section 3(1) of Central Excise Act, provides is only the measure of the central excise duty leviable on the DTA clearances of a 100% EOU. Therefore, in our view, it would not be correct to treat the clearance of the goods manufactured by 100% EOU into DTA as deemed imports into India. Just because the education cess and S&H cess are levied as surcharge on the aggregate of excise duties or customs duties, levied and collected by the Ministry of Finance (Department of Revenue), this cannot be treated as mere addition to the excise duty or customs duty - therefore, the education cess and S&H cess have to be treated as different and distinct levies from the excise duties and customs duties on which the same are charged. [paras 8, 9 & 10]



M/s Shah Alloys Ltd Vs CCE (Dated: February 15, 2013)

Central Excise - CENVAT Credit - Credit availed on service tax paid under reverse charge under Section 66A in relation to import of goods meant for trading - Limitation - It is seen that the appellant has abided provisions of law by filing monthly returns to the authorities indicating availment of cenvat credit on such service tax paid on commission - There cannot be any suppression or mis -statement of facts on behalf of the appellant with an intention to evade duty - Demand time barred.


M/s Shree Govardhan Sugar Industries Vs CCE (Dated: January 24, 2013)

Central Excise - CENVAT - Common Inputs Used for excisable and non-excisable goods - Non-maintenance of separate accounts - Reversal of Credit availed - Stay / dispensation of pre -deposit - No inputs / chemicals could have been used in manufacture of Bagasse. In view of the precedent decision on the matter, case made out for waiver of pre -deposit. (Para 3)


M/s Dishman Pharmaceuticals & Chemicals Ltd Vs CCE (Dated: February 7, 2013)

100% EOU – Clearance of imported and indigenous inputs in DTA by paying the duty from CENVAT Credit account – Revenue contends that the payment of duty shall be made only in cash – The duty payable by EOU is under Section 3(1 )( ii) of the Central Excise Act, 1944 and there is no bar in payment of such duty from CENVAT Credit.


M/s Boc India Ltd Vs CCE (Dated: November 27, 2012)

Central Excise – Stay/Dispensation of pre -deposit – Valuation based on cost of production – Commissioner has dealt with the contentions of the appellant at length in respect of each and every CAS 4 statement filed by the appellant – No prima facie case has been made out for waiver of pre-deposit – 25% of the duty ordered to be deposited.


Aesthetic Pavers Pvt Ltd Vs CCE (Dated: February 18, 2013)

CE - As jurisdictional Commissioner he reviews the order and as Commissioner(A) allows the Revenue appeal – same authority who reviewed the order cannot decide the appeal – Order set aside and matter remanded – however, since the Commissioner(A) is still the same, jurisdictional Chief Commissioner of Central Excise requested to entrust this appeal to another Commissioner (A) in terms of rule 3(2) of CER, 2002 – Appeal disposed of by way of remand: CESTAT [para 3]


M/s Fiabila India Ltd Vs CCE (Dated: December 14, 2012)

Capital goods installed in adjacent plot which plot was later merged with the factory - it is not denied that the said capital goods and the storage tank has merged with the factory of the applicant - CENVAT credit prima facie admissible - pre-deposit waived and stay granted: CESTAT [para 4]


M/s Jeppiaar Waters Pvt Ltd Vs CCE (Dated: December 13, 2012)

Central Excise – SSI Exemption to mineral water manufactured and cleared under Notification No 8/2003 CE – Clubbing of clearances of Ready Mix concrete manufactured by the same assessee - Prima facie demand under extended period is sustainable – pre-deposit ordered after taking into account the admissibility of CENVAT Credit.


M/s Mahanagar Gas Ltd Vs CCE (Dated: October 29, 2012)

CENVAT Credit is available on the basis of debit notes provided all the ingredients as required in the invoices are contained therein - issue has been decided by Tribunal extending such benefit - prima facie case in favour - Stay granted: CESTAT [para 5]


M/s India Leaf Springs Mfg Co Pvt Ltd Vs CCE (Dated: January 31, 2013)

CE - CENVAT Credit - Simultaneous availment of Capital goods credit and depreciation - Demand confirmed - the appellant wrongly availed CENVAT credit while simultaneously claiming depreciation for income tax purposes in the year of receipt of capital goods in the factory as also in the subsequent financial year. The credit wrongly availed has to be denied, which is what was done by the lower authorities.

CE - CENVAT Credit - Penalty - Though, for the purpose of invoking the extended period of limitation, the notice alleged suppression of facts with intent to avail CENVAT credit wrongly, it did not allege any of the ingredients of Rule 15(2) in support of the proposal for penalizing the party. From the conduct of the party, it appears that they misunderstood the mandate of Rule 4(4) of the CENVAT Credit Rules 2004. The party appears to have thought that the CENVAT credit taken by them could be maintained by taking "corrective action" before the Income Tax Authorities in subsequent years. The facts of this case do not disclose any mens rea, for the purpose of penalizing the party. It is also significant to note that sub-rule (2) of Rule 15 was not specifically invoked in the show-cause notice, though the mention of Section 11AC might suggest that the show-cause notice purported to invoke the said sub-rule. In any case, considering the facts and circumstances of this case, penalty not sustained.


Hunsur Plywood Works Pvt Ltd Vs CCE (Dated: January 11, 2013)

Central Excise - Saw Dust is marketable but not a manufactured product - the appellant is a manufacturer of plywood. It is not in dispute that saw dust was generated as a waste during the course of manufacture of the excisable product viz. plywood. Saw dust was not consciously and intentionally manufactured. Prima facie, it

is not a manufactured product. For any commodity to be called excisable goods, it should satisfy cumulatively both the conditions viz. manufacture and marketability. Pre -deposit waived and Stay granted.


Rational Engineers Pvt Ltd Vs CCE (Dated: December 19, 2012)

CENVAT - Rule 6 - Whether supplier of materials u/r 4(5)(a) of CCR, 2004 has paid duty on final products - enquiry to be made with principal supplier before allowing CENVAT to manufacturer job wo rker on inputs used for processing of job worked goods - Matter remanded to adjudicating authority: CESTAT [para 6]



M/s Technoweld Alloys (India) Pvt Ltd Vs CCE (Dated: December 5, 2012)

Central Excise - Stay/Dispensation of pre-deposit - Valuation - Inclusion of value of drawings and designs supplied by buyers by invoking Rule 6 of the Central Excise (Valuation) Determination of Price of Excisable Goods Rules, 2000 - No prima facie case against the demand - But the cost of drawings was arrived in an empirical manner - Pre -deposit of Rs 7.5 lakhs ordered.


M/s Virchow Biotech Pvt Ltd Vs CCE (Dated: January 11, 2013)

CE - Commissioner (A) dismisses appeal on ground of non-payment of pre-deposit. Negation of natural justice writ large - Commissioner (A) directed to hear appeals without pre-deposit - The undue haste shown by the Commissioner (Appeals) in this case does not inspire confidence. It is evident that a reasonable opportunity of being heard was not given to the party. In other words, the impugned order is fit to be set aside on the sole ground of breach of the principles of natural justice. The appellate Commissioner issued interim order on 06/03/2012 stipulating that the duty amount be deposited by 19/03/2012. Even that order was passed without personal hearing. That order was received by the party only on 24/03/2012, long after the deadline fixed for predeposit. The learned Commissioner (Appeals) chose to stick to his time schedule and pass a Final order on 20/03/2012 itself without having any occasion to entertain the genuine grievance raised by the party in their modification application.


M/s Wabco Ltd Vs CCE (Dated: December 6, 2012)

Central Excise – CENVAT Credit – Stay/Dispensation of pre -deposit – CENVAT credit availed on services received at Head Office by different manufacturing units - The only irregularity found by the Department is that the Head Office of the company did not have ISD registration and did not issue invoices to the manufacturing units to enable them to avail CENVAT credit – The two restrictions in respect of availment of CENVAT credit in terms of Rule 7 were that the credit should not exceed the amount of service tax covered by the service provider's invoice and that the credit should not be attributable to services used in the manufacturing of exempted goods or for providing exempted services are satisfied – Prima facie case made out for waiver of pre -deposit


Hindustan Petroleum Corporation Ltd Vs CCE (Dated: January 23, 2013)

Central Excise - CENVAT credit on HR plates used in construction of storage tanks - High Court held that CENVAT credit was admissible to inputs used in the manufacture of storage tanks which were expressly covered by the definition of "capital goods" given under Rule 2(a) of the CENVAT Credit Rules, 2004. Between the High Court's ruling and the Tribunal's Larger Bench decision, the former will prevail. Pre -deposit waived and recovery stayed.


M/s Commander Watertech Pvt Ltd Appellants Vs CCE (Dated: February 15, 2013)

CE - Refund - While rejecting refund claim, penalty imposed u/s 11AC - since there is no demand, pre -deposit of penalty waived - Stay petition allo wed: CESTAT [para 3]


M/s Eveready Industries India Ltd Vs CCE (Dated: January 22, 2013)

Central Excise - CENVAT Credit - Written off inputs - ‘Writing off' a mistake later rectified - matter remanded for fresh consideration - Appellate Commissioner's order suffers from non-application of mind and hence deserves to be set aside. However, the fact remains that the case of the assessee and any documentary evidence in support thereof need to be examined by the original authority.


M/s Disha Foods Pvt Ltd Vs CCE (Dated: January 11, 2013)

Central Excise - Dismissal of appeal by Commissioner (Appeals) for delay of four days in a rebate case - party appeals to Tribunal. Department raises an objection that appeal involving rebate claims does not lie with Tribunal - The impugned order is an order on maintainability of the appeal only inasmuch as the Commissioner (Appeals) held the appeal to be time-barred and hence not maintainable. Such an order, is appealable to this Tribunal under Section 35B(1) of the Act. Matter remanded.


M/s Tenneco RC India P Ltd Vs CCE (Dated: January 31, 2013)

Central Excise - Interest - Limitation - Appellants contesting that the demand of interest is hit by limitation - Apex Court has examined this issue with specific reference to the provisions in Central Excise Act, 1944 and ruled that assessee should pay such interest even without a notice being served on them as can be seen from para 8 of the judgment in the case of International Auto Ltd - 2010-TIOL-05-SC-CX . No merit in the appeal filed by the assessee.


M/s Mittal Pigments Pvt Ltd Vs CCE (Dated: January 16, 2013)

Central Excise – CENVAT Credit sought to be denied on the ground that the documents were not in the name of the importer – Contention that the goods were purchased on High Sea Sale basis and all the invoices contain all the particulars required under Rule 4A of the Service Tax Rules, 1994 and Rule 9(5) of the Cenvat Credit Rules, 2004 - It does not stand examined by the lower authorities whether such services were utilized by the appellant for clearance of imported goods and whether such document has been endorsed in their names - Matter remanded to original adjudicating authority for fresh decision.


M/s Hindustan Zinc Ltd Vs CCE (Dated: January 14, 2013)

Central Excise – CENVAT Credit – Input service – Transportation of staff from the colony to the factory and back, transportation of the employee children from the residential colonies to school - Transportation of the employees of the companies has been held to be admissible by Tribunal and which is also upheld by the High Court – Credit is admissible - Children education allowance is part of the final cost of the product manufactured by the appellant and the conveyance of children from the residential colony to the school is the responsibility of the appellant, especially when no normal/general mode of transportation is available on account of colony being away from the city – Credit is admissible.


CC, CE & ST Vs M/s Neuland Laboratories Ltd (Dated: January 11, 2013)

The departmental officer who drafted the above application needs intensive training. An application of this kind should, at least minimally, specify the extent of amendment required. The present application merely seeks amendment of the memo of appeal.


Ispat Industries Ltd Vs CCE (Dated: February 26, 2013)

Rule 10 of CCR, 2004 - If an assessee has to transfer inputs corresponding to the transfer of entire CENVAT credit the assessee can at any time clear the inputs on payment of duty and avail the credit of the same at the different location - in such a situation the provision of Rule 10 would be rendered redundant – Unutilized balance credit transferred without transfer of stock of inputs/capital goods is proper – Appeal allowed: CESTAT [para 7]



M/s Savita Polymers Ltd Vs CCE (Dated: January 17, 2013)

Central Excise - CENVAT - Used Capital Goods Sold - Reversal of Credit availed - Stay / dispensation of pre -deposit - Credit of the the entire amount of the cenvat credit that has been availed when the capital goods were purchased need not be reversed when used capital good are sold. Prima facie case made out for waiver of pre -deposit. (Para 5)


M/s Jay Ushin Ltd Vs CCE (Dated: December 13, 2012)

CENVAT - it is not disputed that M/s. Siemens Ltd. were registered as a dealer and subsequently after being taken over by SVACPL, SVACPL also obtained registration as a registered dealer - When it is not disputed that the goods on which CENVAT credit had been taken by the appellant has been sold to M/s. SVACPL who in turn sold the same to the appellant, it would not be correct to deny the CENVAT credit when both the M/s. Siemens Ltd. and M/s. SVACPL were registered as dealers – moreover, SVACPL can be treated as second stage dealer and the invoice issued by them would be valid document for CENVAT credit – Appeal allowed: CESTAT [para 5]


M/s Aquasub Engineering Vs CC, CCE & ST (Dated: December 14, 2012)

Central Excise - CENVAT Credit taken on the same invoices twice - Appellant paid the amount along with interest - Penalty - No case to impose penalty as it is a case of mistake rather than any intentional evasion of duty.


Shree Datta S S K Ltd Vs CCE (Dated: December 14, 2012)

Sludge arising during the manufacture of sugar and molasses cleared without payment of duty – whether amount of 5/10% of the price of sludge payable in terms of rule 6 of CCR, 2004 - in view of decision in Amravathi Co-op Sugar Mills Ltd. - (2012-TIOL-937-CESTAT-MAD) settling the issue in favour of the assessee, order set aside and appeal allowed: CESTAT [para 3]


CCE Vs M/s Madura Coats Ltd (Dated: January 02, 2013)

Central Excise - Refund - Classification dispute - Refund allowed by the Commissioner (Appeals) on the ground that there is no stay against the favourable order of the Tribunal - The said Final Order of the Tribunal has not attained finality on account of the reference pending before the High Court. Therefore, the refund claim filed by the respondent is premature - The Tribunal's proceedings are inconclusive by reason of the reference pending before the High Court. In this situation, the respondent cannot claim refund of any " predeposit " and, therefore, the view taken by the Commissioner (Appeals) cannot be sustained .

Finding of the Commissioner (Appeals) that the Finance Act, 2000 which revalidated past actions taken under Section 11A of the Central Excise Act did not warrant recovery of duty in cases where appellate fora set aside demands in view of the Hon'ble Supreme Court's judgment in Cotspun case - This view was taken by the lower appellate authority regardless of the fact that the Tribunal's Final Order had not attained finality and also the fact that the judgment in Cotspun case had been rendered prior to the enactment of the Finance Act, 2000. The Commissioner (Appeals) ought to have examined the effect of Section 110 of the Finance Act, 2000 on the facts of the respondent's case.


Madras Cements Ltd Vs CCE (Dated: January 31, 2013)

Central Excise - CENVAT Credit - Welding Electrodes - T he appellant contend that they availed credit of duty paid on 'welding electrodes' used for maintenance of their machinery - The Commissioner (Appeals) observed that they have not stated the usage of the goods - It is also observed that the original authority denied the credit on 'welding electrodes' used for repairs and maintenance of machinery - The appellant

submits that they have stated the use of the goods in their reply to the show cause notice - Matter remanded to the Commissioner (Appeals) for fresh decision after examining the usage of goods.


Suo Motu Miscellaneous (Dated: April 2, 2013)

CBEC circular No 967/01/2013-CX dated 01.01.2013 – For no fault of any of the assessees concerned, stay applications remain pending for long periods, and after issue of the circular dated 01.01.2013, officers resort to coercive action during the pendency of stay applications/stay extension applications.


Schenectady Specialities Asia Ltd Vs CCE (Dated: January 31, 2013)

CENVAT - Inputs/Capital goods destroyed in fire - It is not in dispute that Inputs have gone into the process of manufacturing and Capital goods were also in use – Appellant has been able to prove through a certificate issued by National Insurance Company that they have not entertained the MODVAT credit component while entertaining their insurance claim – Credit cannot be denied: CESTAT [para 7]



CCE Vs M/s Cadila Healthcare Ltd (Dated: December 28, 2012)

Central Excise - CENVAT Credit - Monetary limits for filing appeal by the revenue - On the date of consideration of the appeal, when the Circular of the Board was in force, appeal has to be dismissed as held by the High Court of Gujarat - Revenue appeal is accordingly dismissed.

Reversal of CENVAT Credit - Interest liability - Interest has to be paid even if credit is not utillised.

Penalty - Where the credit has not been utilised there cannot be any payment of duty without there being sufficient balance and therefore, no penalty is leviable


M/s Kone Elevator India Pvt Ltd Vs CCE (Dated: January 09, 2013)

Central Excise – Provisional assessment – Refund consequent to finalization of provisional assessment – Unjust enrichment – No error in the order of Commissioner (Appeals) applying the principles of unjust enrichment for the period from 24.06.1999.


CCE Vs M/s Sterlite Industries India Ltd (Dated: February 01, 2013)

Central Excise - Job work - Permission to job work under Rule 4(6) denied on the ground that the goods cleared as not inputs or partially processed inputs - Copper anode is both final product as well as intermediate product at the factory at Tuticorin from where the goods are sent for job work - It is final product when it is cleared on payment of duty - It is intermediate product when it is further used in the manufacture of cathode or wire rods - No error in the order of the Commissioner (Appeals) allowing job-work.


CCE Vs M/s Sterling Sez & Infrastructure Ltd (Dated: January 15, 2013)

Central Excise - Appeal to Commissioner (Appeals) - Power of remand - Commissioner (Appeals) has no power to remand the matter to the original adjudication authority. Impugned order set aside. However, in this case, extension of time is sought by the assessee before lower authorities for filing refund claim under Rule 5 of CENVAT Credit Rules, 2004. This being a question which needs to be factually addressed only by the adjudicating authority, matter remanded to the original adjudication authority for fresh decision . (Para 2 & 3)


M/s Somnath Auto Garage Vs CCE (Dated: January 2, 2013)

Central Excise - Clandestine clearance - Demand - Non-supply of certain documents - Principles of natural justice - The assessee has not been provided the documents, based on which the duty calculation documents have been prepared. it is seen from the reco rds that the assessee is stalling the adjudication proceedings. Part of the demand ordered as pre-deposit. Department to provide the documents sought by the assessee and pass orders afresh following the principles of natural justice. (Para 5)


M/s Vinod Processors Vs CCE (Dated: December 11, 2012)

Notfn. 111/87-CE prescribes quantitative limits in a financial year of the clearances of cotton fabrics processed without aid of power or steam which were eligible for fully duty exemption - even if the clearances of the processed cotton fabric during a financial year exceed the threshold limit prescribed in the notification, it is only the clearances in excess of this limit which would attract duty, and crossing the threshold limit would not result in total denial of the exemption – allegation of clandestine production and clearance is proved, however, duty needs to be recomputed a s per aforesaid observations – Matter remanded: CESTAT [paras 9 & 13] There is nothing wrong in simultaneous imposition of penalty on the Appellant firm and its partner as the two penalties are under different rules and for different contraventions. However, the quantum of penalty on the appellant firm under 173Q (1) and on the partner under Rule 209A of CER, 1944 has to be in proportion to the quantum of duty demand confirmed – since same requires re -quantification, matter remanded: CESTAT [para 12]


India Fashions Ltd Vs CCE (Dated: January 24, 2013)

CE - Refund - Since duty has been wrongly deposited in PLA of a closed unit, bar of unjust enrichment does not apply -adjudicating authority to sanction amount within 7 days: CESTAT [paras 4 & 5]


Zydus Nycomed Healthcare Pvt Ltd Vs CCE (Dated: November 12, 2012)

Refund – Rule 5 of CCR, 2004 – refund of unutilized CENVAT credit – Travel & Car services and Catering Services are Input services in view of High Court decisions in Ultratech Cement - (2010-TIOL-745-HC-MUM-ST) and Stanzen Toyotetsu India (P) Ltd. - (2011-TIOL-866-HC-KAR-ST) Construction services is used towards repairing and maintenance of the factory premises and, therefore, these are also input services within the purview of rule 2(1) of CCR, 2004 – appeal allowed with consequential relief: CESTAT [para 6]


Shree Siddheshwar Ssk Ltd Vs CCE (Dated: November 19, 2012)

Appellants engaged in the manufacture of sugar and molasses and are availing CENVAT credit in respect of inputs -appellant claimed benefit of notfn. 67/95-CE in respect of molasses on the ground that the same is captively consumed in the manufactured of denatured Ethyl alcohol which is cleared on payment of appropriate duty -exemption sought to be denied on the ground that during manufacture of denatured rectified spirit, rectified alcohol came into being and which is exempted -there is no evidence on record that appellant cleared rectified alcohol without payment of duty during the period of dispute - whole quantity of molasses is used in the manufacture of denatured alcohol which was cleared on payment of duty -benefit of notification available - Appeal allowed: CESTAT [paras 9 & 10]


M/s Amj Corporation Vs CCE (Dated: September 28, 2012)

Refund of excess interest paid by mis-calculating the interest payable on supplementary invoices – revenue seeks to deny the same on the ground that appellant has not discharged their burden of unjust enrichment – from a reading of section 12B of the CEA, 1944, it is clear that the bar of unjust enrichment is applicable to duty only and not for interest – the law does not provide any presumption of passing the incidence of interest on the buyers – order set aside and appeal allowed with consequential relief: CESTAT [para 6]



M/s Cadila Healthcare Ltd Vs CCE (Dated: January 31, 2013)

Central Excise – Demand of duty on clandestine clearances on the ground that a quantity of only 25.3 Kg of the finished goods were manufactured from a quantity of 73.2 Kgs resulting in loss of 47.9 Kgs - Confirmation of the differential duty is based upon the assumption made on the theoretical calculation and not on an actual clearances of the final product and the same is therefore not sustainable.


M/s Aditya Laminators Pvt Ltd Vs CCE (Dated: January 21, 2013)

CE - Applications for extension of stay – since stay orders were passed by Division Bench, Single Member cannot decide or pass orders – considering the fact that Revenue authorities are taking coercive action for not getting stay extended, in the interest of justice, interim protection is given by directing departmental authorities to follow the orders in the respective stay orders and not precipitate matters: CESTAT [paras 2 & 3]

Because of leave of one Member, Division Bench is not functioning - Since in the normal course extension would have been granted, Revenue restrained from taking any coercive action: CESTAT [para 3]


J Square Steels Pvt Ltd Vs CCE (Dated: December 17, 2012)

CENVAT credit on MS Angles, Channels etc. denied on the ground that the same are not ‘capital goods' – Commissioner(A) dismissing appeal for non-compliance of pre -deposit ordered of the entire amount involved – since the LB decision in Vandana Global has been challenged before the High Court of Chattisgarh and the same is pending decision, appellant directed to make a pre-deposit of 1.15 lakhs which along with the amount already paid would roughly be 50% of duty involved – upon compliance lower appellate authority to hear on merits and on limitation – Matter remanded: CESTAT [para 4]


John Deere (I) Pvt Ltd Vs CCE (Dated: January 23, 2013)

Notfn. 23/2003-CE – State government exempting unit from their Sales Tax liability under the Package Scheme of Incentives, 1993 as applicant has set up unit in backward area – however, tractors not exempted under the Maharashtra VAT Act, 2002 – Prima facie case made for waiver of adjudged dues – Stay granted: CESTAT [paras 9 & 10]



LSR Speciality Oils P Ltd Vs CCE (Dated: December 14, 2012)

M.S angles and H.R sheets used for construction of storage tank – CENVAT credit is admissible on the same as Storage Tank is capital goods – applicant has made out a case for 100% waiver of pre-deposit – Stay granted: CESTAT [para 5]


M/s Schott Glass India Pvt Ltd Vs CCE (Dated: January 30, 2013)

Central Excise – CENVAT Credit on input services received prior to 10.09.2004 and reversed with interest – Equal Penalty imposed under Rule 15(2) – Since it is a case of availment of credit on input services, provisions of Rule 15(2) are not applicable – Penalty under Rule 15(3) is only attracted – Penalty reduced to Rs 2,000/- under the provisions of Rule 15(3).


CCE Vs M/s Welspun Gujarat Stahl Rohren Ltd (Dated: February 15, 2013)

Central Excise Act, 1944 - Sections 11AB, 11AC, CENVAT Credit Rules, 2004 - Rules 2(1), 14, 15 - Whether Handling Agency Services provided by port authority through Customs House Agent for transportation of their clearance of final excisable goods to factory and port is an excisable service - Whether services rendered in connection with business activities of production and sale of finished goods are not covered within the definition of 'input services'.


P C P Chemicals Pvt Ltd Vs CCE (Dated: January 04, 2013)

CENVAT - Capital goods - simultaneous availment of CENVAT and depreciation - As the appellant has filed revised return and did not claim depreciation on those capital goods by producing the IT Return, therefore, they are entitled for CENVAT credit for the capital goods - Appeal allowed with consequential relief: CESTAT [para 7]


Kohinoor Tissue Converting Co Vs CCE (Dated: January 24, 2013)

CE - Toilet Papers - Valuation - whether u/s 4 or 4A of CEA, 1944 - Toilet papers are separately classifiable than handkerchiefs, cleansing or facial tissues and towels and the third schedule to the Tariff does not cover toilet papers - in view of this, prima facie the applicants have made out a strong case in their favour - pre -deposit of duty of Rs.1.19 Crores waived & stay granted: CESTAT [para 5]



CCE Vs M/s Hemani Organics & Chemicals Pvt Ltd (Dated: January 21, 2013)

Central Excise - CENVAT Credit on HR Coils, MS Plates, Channels and HR Plates etc used for fabrication of storage tanks - No infirmity in the order of lower appellate authority in allowing the credit - Revenue appeal has no merit.


Varsha Forgings Ltd Vs CCE & CC (Dated: June 22, 2012)

CENVAT – duty paying documents lost in transit – Powers of adjudication are given to quasi judicial authorities to sub-serve justice and not to deny them – appellant had requested Asst. Commr. to grant permission for credit based on copy of the invoice and FIR – rejection of request is a case of pure and simple harassment to assessee –

if the Asst. Commr. wanted verification of the duty payment, he could have taken up the matter with jurisdictional authorities at the supplier's end – over and above this, Commissioner(A) without understanding basic facts directed pre -deposit – entire order needs to be set aside – appellant has rightly taken credit – appeal allowed with consequential relief: CESTAT [paras 4.1 & 5]



M/s ABB Ltd Vs CCE (Dated: November 26, 2012)

Central Excise – Stay/Dispensation of pre -deposit – Goods supplied under Notification No 108/95 CE dated 28.08.95 on the strength of Certificates by Project Implementing Authority which were found to be forged – 50% of the duty demanded ordered to be pre -deposited – Pre -deposit waived in respect of the first applicant in view of the payment of duty by the receiver of the goods.


M/s General Motors India Pvt Ltd Vs CCE (Dated: January 21, 2013)

Central Excise – CENVAT Credit availed on raw materials damaged in transit on which appellant claimed insurance inclusive of excise duty element – Appellant not contesting duty and interest, but only seeking benefit of reduced penalty under Section 11 AC – Benefit of reduced penalty extended if paid within thirty days from the date of receipt of the Tribunal's order.


M/s Dhillon Cool Drinks & Beverages Ltd Vs CCE (Dated: January 15, 2013)

Central Excise – Valuation – Stay/Dispensation of pre-deposit – Under-valuation of aerated water and post mix syrup sold through marketing company – The remand order of the Tribunal was confined to local taxes only – Findings with regard to admissibility of deduction on account of sale and distribution staff employed at depots and deduction on account of machine charges for BIB and repair and maintenance of machines were decided against the appellant and attained the finality as the applicants have not challenged the Tribunal's order before the higher forum on these issues – No prima facie case has been made out for waiver of pre -deposit.


India Cements Ltd Vs CCE (Dated: December 6, 2012)

Central Excise – Stay/Dispensation of pre -deposit – Clearance of goods to SEZ developers and units in SEZ – Demand of 10% under Rule 6 of CENVAT Credit Rules, 2004 – Prima facie case made out for waiver of pre-deposit.


Nitcon Industries P Ltd Vs CCE (Dated: September 27, 2012)

CENVAT credit on Rent services - Revenue denying credit on the ground that the premises under rent are outside the factory premises and that rent services have no nexus with the manufacturing of the final product - any service availed in the course of business is entitled for CENVAT credit - it is immaterial whether the rented premises is within the factory or outside - it is also not disputed that the rented premises is not used for storage of goods manufactured by the appellant - credit admissible as it is Input service under rule 2(1) of the CCR, 2004: CESTAT [paras 3 & 4]


N R Jet Enterprises Ltd Vs CCE (Dated: October 15, 2012)

Central Excise - Interest - s.11AA & s.11AB of the CEA, 1944 - Statutory interest is payable in respect of confirmed duty even in case the same is not demanded in the show-cause notice: CESTAT [para 9]


LSR Speciality Oils Pvt Ltd Vs CCE (Dated: January 8, 2013)

CENVAT - Rule 2(k) of CCR, 2004 - Storage tanks have been specified as capital goods and, therefore, inputs viz. M.S.Angles and H.R.Sheets which are used in the manufacture of such capital goods are e ligible for CENVAT credit: CESTAT


Uni Deritend Ltd Vs CCE (Dated: November 6, 2012)

Railways have placed order on the appellant for supply of ‘Valve Seat Insert' - appellant in the classification list declaring the goods as casting of nickel and nickel based alloys and clearing goods under CSH 7508 of the CETA, 1985 - no evidence produced by the appellant that the goods in question are not used as parts of locomotive - goods are correctly classifiable under SH 8607 as ‘parts of locomotive' -

Demand correctly made - no infirmity in order of lower authority - Appeal dismissed: CESTAT [paras 6 & 7]


M/s Treadsdirect Ltd Vs CCE (Dated: September 12, 2012)

Central Excise - Stay / Pre -deposit of Duty - Valuation - Clearance of goods to other units of same company - The basis for maintenance of the cost of production in spite of increase in the price of natural rubber appears to have been satisfactorily explained by the assessee as recorded by the Commissioner - The Commissioner has not given any finding as to why the said value is incorrect - Special audit report also does not explicitly discuss this issue - The appellant have made out a prima facie case on merits in their favour (Para 5).


M/s Torsion Industries Vs CCE (Dated: October 23, 2012)

CENVAT - Benefit contained in Notification 22/2009-CE(NT) is to be allowed retrospectively - if credit of the entire excise duty paid by an EOU is not allowed and the same is restricted, it creates a discrimination between units in the DTA and those in the EOU Zone - it will no longer be economically attractive to buy goods from EOU because of lesser amount of credit that would be available - Additional duty paid under sub-section (5) of section 3 of the Customs Tariff Act is available as CENVAT credit even prior to 07.09.2009 - issue settled as above in case of Metaclad Industries (2012-TIOL-1577-CESTAT -MUM) - prima facie applicant has made a case for complete waiver of pre -deposit - stay granted: CESTAT [paras 3 & 4]


M/s Power Build Ltd Vs CCE (Dated: December 19, 2012)

Central Excise - Stay/Dispensation of pre-deposit - Assessee themselves reversed the CENVAT Credit availed - Application for waiver of pre -deposit of balance amount is allowed in view of the judgement of Gujarat High Court in case of Gujarat Narmada Fertilizers Co. Ltd. - 2012-TIOL-273-HC-AHM-CX


M/s Tinslay Bridge Abbros Spring (India) P Ltd Vs CCE (Dated: January 11, 2013)

Inferring that excess credit has been taken by recalculating CENVAT credit based on the price charged by the registered dealer is not sustainable - Appeal allowed with consequential relief: CESTAT [para 4]


M/s Bharat Sanchar Nigam Ltd Vs CCE (Dated: January 29, 2013)

Central Excise - Manufacture - Digital Local Telephone Exchange Equipment (DLTEE) System assembled by BSNL is leviable to excise duty under CETH 85.17- All the parts procured were assembled by the engineers of the Appellant at their site resulting into emergence of the DLTEE - Contention that Exchange could not be assembled by them without necessary training and expertise, being contrary to the evidence, is not acceptable - Section 2(f) of the Central Excise Act, 1944.



M/s Shree Digvijay Cement Co Ltd Vs CCE (Dated: June 25, 2012)

Central Excise - Stay / Pre -deposit of Duty - Demand - Duty Demand on Clinker used captively in manufacture of Cement cleared International Competitive Bidding (ICB) - The provisions of Rule 6 excludes this kind of supply for not maintaining separate records and input credit is available to the appellant-assessee - If the assessee is directed to pay the duty on captively consumed clinkers, he can avail CENVAT Credit for the purpose of manufacturing of cement, which is a dutiable item but for the exemption granted for the supplies for ICB - The appellant has made out a prima facie for the waiver of pre -deposit of the amounts involved (Para 6 & 7).


The Paper Products Ltd Vs CCE (Dated: January 29, 2013)

CX - Recovery proceedings initiated by Revenue as per Board Circular no. 967/01/2013-CX dated 01.01.2013 - due to scarcity of Members in the Tribunal, stay applications could not be heard in time - recovery proceedings stayed till disposal of stay applications: CESTAT [para 2]


CCE Vs M/s Alka Chemical Industries (Dated: October 20, 2012)

When lower authorities themselves have taken contrary views on the interpretation of a particular notification, no penalty is warranted on the assessee: CESTAT [para 4]

Adjudicating authority dropping the demand and on appeal Commissioner(A) allowed Revenue appeal and confirmed the demand - since Revenue did not pray for imposition of penalty, such a claim cannot be made at the second appeal stage before Tribunal - since respondent has admitted duty liability, interest is payable in view of SC decision in SKF India - (2009-TIOL-82-SC-CX)- Appeal disposed of: CESTAT [para 4]


Ambuja Cements Ltd Vs CCE (Dated: December 17, 2012)

Captive power plants and manufacturing units are treatable as integrated units - there is no dispute that electricity generated in the captive power plants are used in the manufacture of cement which is cleared on payment of duty - in this view of the matter the applicant is prima facie entitled to take credit in respect of duty paid on inputs/capital goods and input services used/received in the captive power plants - strong case for waiver of pre -deposit - Stay granted: CESTAT [para 9]


M/s Adikesh Industries Vs CCE (Dated: December 7, 2012)

Central Excise - SSI - Brand name - According to the definition of brand name or trade name in the notification extending exemption benefit to the SSI unit, brand name or trade name need not be registered. What is required is that it should have been used by the owner and regularly being used. The notification providing SSI Exemption does not require that any money is to be paid to the owner of the brand name. (Para 4 & 6)

Extended Period - Relevant Date - Once suppression / misdeclaration is proved, extended period can be invoked. Since every assessee is required to file return and every manufacturer is an assessee, as per rule, assessee is re quired to file the return and therefore in the absence of any return being filed, the due date on which return was required to be filed has to be taken as relevant date for counting the period of five years for issue of show cause notice. (Para 7 & 8)

Cross-Examination - Requirement of - The assessee's request for cross examination of Panch witnesses on the ground that no gear box has been found with brand name, need not be considered as the records show that the assessee was mentioning the name of the brand in the invoices and quantum of clearance and value of branded goods is taken from records. Further, the proprietor has admitted that they have used brand name belonging to another person. (Para 3)

Benefit of cum duty price - If duty is demanded later, the amount recovered as per invoice has to be treated as cum duty. Hence, matter is remanded to the original adjudicating authority for working out cum duty realization, amount of duty to be demanded and penalty to be imposed. (Para 9 & 10)


M/s Axiom Impex International Ltd Vs CCE (Dated: December 14, 2012)

S.4 of CEA, 1944 - Applicant clearing goods to independent buyers as well as clearing to their another unit for captive consumption - revenue alleging that goods cleared to their another unit should be valued in terms of rule 8 - Provisions of rule 8 of the Valuation Rules, 2000 are applicable only when the excisable goods are not sold but are cleared for captive consumption and are not applicable when the goods are partly cleared to independent buyers - prima facie applicants have made out a strong case in their favour - Pre-deposit waived and stay granted: CESTAT [para 4]


Shiv Shakti Re-Rolling Mills P Ltd Vs CCE (Dated: January 9, 2013)

S. 35A of CEA, 1944 - First duty of the Commissioner (A) is to dispose of the stay application and if he is not satisfied with the arguments advanced for waiver of pre-deposit, he may ask for pre -deposit but while considering the Stay application along with Appeal together, he has no power to dismiss the appeal for non-compliance of Section 35F of the CEA, 1944 – Matter remanded to Commr(A) to consider the Stay application first: CESTAT [paras 4 & 5]


M/s Shree Vadodara Dist Co-Op Sugarcane Growers' Union Ltd Vs CCE (Dated: October 22, 2012)

Central Excise - Stock Taking - Excess stock - Demand - Redemption Fine - Penalty - Excess stock of sugar found during stock taking. Assessee explained that invoice already raised but stock not lifted. Department failed to investigate and ascertain this submission of assessee. Benefit of doubt in the absence of proper investigation has to go to the assessee. Penalty under Rule 25 would be appropriate for the procedural lapses. Redemption fine set aside. (Para 6 & 7)


M/s Vinati Organics Ltd Vs CCE (Dated: November 27, 2012)

Refund - applicant had vide letter dated 25.09.2007 informed Revenue that they are reversing CENVAT credit inadvertently availed - there is no protest made at the time of reversal - refund claimed on 29.12.2009 and sanctioned by adjudicating authority but held as time barred by Commissioner(A) - as per s.11B of CEA, 1944 refund is to be filed within the period of one year from the relevant date i.e date of payment of duty - prima facie applicant has not made out a case for total waiver - pre-deposit ordered of Rs.10 lakhs for obtaining Stay: CESTAT [para 7]


M/s Shree Renuka Sugars Ltd Vs CCE (Dated: August 31, 2012)

CENVAT - Bagasse & Press mud arising during the manufacture of sugar and molasses are waste and not final products - no need to pay any amount of 5%/10% in terms of Rule 6 of CCR, 2004 on the ground that common Inputs/Input Services were used in the manufacture - provisions of Income Tax are not parallel to the provisions of Central Excise Act and Rules hence the terms ‘produce' or ‘manufacture' as interpreted by the Supreme Court are not applicable in the facts of the present case - Order set aside and Appeals allowed: CESTAT [paras 5.1, 5.2, 7 & 8]


Roca Bath Room Products Pvt Ltd Vs CCE (Dated: August 3, 2012)

For manufacture of sanitary ware, appellant makes Plaster of Paris (POP) moulds and for which they use propane gas and input services in respect of which CENVAT credit has been taken - After use, the POP moulds are sold as waste - Department seeking duty on the sale price of POP scrap by invoking Rule 3(5A) of CCR, 2004 - Rule 3(5A) of the CCR, 2004 applies to capital goods on which CENVAT credit has been availed - in the present case no CENVAT credit has been taken on POP moulds - POP moulds cannot be said to be CENVATTED capital goods hence prima facie appellant has a case in their favour - Pre -deposit waived and stay granted: CESTAT [para 5]


Dynamic Beverages Pvt Ltd Vs CCE (Dated: July 23, 2012)

CE Valuation - Appellant is purchasing raw material from market for manufacture of packaged drinking wa ter and the same is cleared to M/s. Amalgamated Bean Coffee Trading Co. u/s 4A of the CEA, 1944 who further sell to their customers - there is merit in the contention of appellant that M/s ABCTC is not an institutional consumer so as to necessitate valuation u/s 4 of the CEA, 1944 as alleged - Pre-deposit waived and stay granted: CESTAT [para 6]



M/s Krishna Mohan Beverages & Constructions Pvt Ltd Vs CCE (Dated: September 4, 2012)

Central Excise - Valuation - Addition of Rental Charges of Crates in the Assessable Value of aerated water - The Commissioner rejected the allegation of relationship between the two distributors and the appellant - As a result, the sale price of the aerated waters cleared by them stands accepted - The Commissioner despite having rejected the allegation of relationship, accepted the sale price, and in-principle accepted the deduction towards rental charges, has given no valid reasons to disallow part of the value claimed towards such rental on crates especially in the absence of any allegation that the amount claimed was inflated with a view to suppress the assessable value (Para 8.4).

Central Excise - Valuation - Advertisement Expenses in the Assessable Value of aerated water - Regarding the dropping of demand on advertisement expenses, the Commissioner has noted that there was no allegation that the advertisement expenses were collected by any bogus companies or firms - As per the grounds of appeal filed by the department, the Commissioner has wrongly relied upon the decision of the Supreme Court in the case of Philips India Ltd - It was their submission that the advertisement promoted the marketability of the product - In the instance case, the expenses incurred were for painting the vehicles which carried the aerated waters bottles - The expenses are only nominal - These expenses cannot be attributed to activities aimed at promotion of the product - The Commissioner's reliance placed on the decision in the case of Philips India Ltd. cannot be faulted (Para 9.1).

Central Excise - Valuation - Advance Deposits - As regards dropping of the demand relating to advance deposits, the department is presuming that such deposits must have been taken from all dealers on the ground that aerated waters could be supplied only in bottles and carried in crates - Such presumption cannot be the basis for confirming a demand - No evidence was adduced to show that taking a deposit has reduced the assessable value of the subject goods - The sale price adopted by the assessee to related persons and other distributors were found to be the same and the veracity of the same stands accepted - No valid grounds have been raised by the department to warrant interference with the findings of the Commissioner (Para 9.2).


M/s Sanghavi Engineering Vs CCE (Dated: July 13, 2012)

Central Excise - CENVAT - Value of CENVATABLE Inputs partly written off in books of accounts - Reversal of CENVAT credit - The plea of the appellant that the requirement of reversal of CENVAT credit on inputs in cases of partial writing off of value was brought into effect only on 01.03.2011 - Prior to 01/03/2011, a manufacturer of final product who availed CENVAT credit on inputs was not required to reverse any part of that credit on the ground of a part of the value of the inputs being written off the books of accounts - Only cases of writing off the full value of the inputs on which CENVAT credit had been availed called for reversal of the credit - The present one is not such a case - It is also pertinent to note that the Department has no case that the amendment dated 01/03/2011 has retrospective effect (Para 2).


M/s Marvel Engineering Vs CCE (Dated: September 10, 2012)

Central Excise - Stay / Pre -deposit of Duty - Clandestine manufacture and removal of trailers - Prima facie, on merits, the appellants do not have a case for complete waiver of pre-deposit of the dues - The dispute at the most relates to quantum of duty in relation to valuation and number of trailers removed - Taking into account the entire facts and circumstances of the case ordered for pre-deposit of Rs.30,00,000/- (Para 5 & 6).


Tata Motors Ltd Vs CCE (Dated: January 08, 2013)

Applicant fabricated bodies on duty paid chassis supplied by M/s Tata Motors – valuation of motor vehicles whether to be made under rule 10A of Valuation Rules – applicants had intimated to Revenue regarding payment of duty as per provisions of rule 6 of the Valuation Rules – applicant admitting that on merits the issue is covered in favour of Revenue - prima facie, therefore, applicants have made a strong case on time bar – pre -deposit ordered of Rs.1 Crore: CESTAT [para 5]


Raman Ispat Pvt Ltd Vs CCE (Dated: January 2, 2013)

Central Excise – Clandestine clearances – Except the shortages detected by the officers at the time of their visit to the appellant's factory, there was no other evidence available on record indicating clandestine clearances of such shortages. - The appellant's representative in his statement had clearly deposed that they take sponge iron to furnace by estimation only and the shortages can be on account of faulty accounting procedure - It is well settled that charges of clandestine removal are required to be substantiated with production of tangible and positive evidence – No justifiable reason to uphold the demand based on the alleged shortages – However, demand with equal penalty confirmed in respect of demand where documentary evidence is available – Separate penalties on the three co -appellants are set aside.


Maruti Suzuki India Ltd Vs CCE (Dated: January 14, 2013)

Central Excise - Valuation - Stay/Dispensation of pre -deposit - Inclusion of pre -delivery inspection charges in assessable value - Larger Bench decision in respect of the same assessee is against them - No stay against the same by Supreme Court - Appellants directed to deposit entire amount of duty.


M/s Ratnamani Metals & Tubes Ltd Vs CCE (Dated: May 31, 2012)

Rule 6 of CCR, 2004 - H.R. Coils were exclusively used for the manufacturing of pipes which were to be cleared by claiming exemption under Notification No.6/2002-CE - appellant could not have availed CENVAT credit on HR Coils and paid 8% amount on removal - merely because some waste arose and the same was cleared on payment of duty does not mean that both, dutiable and exempted goods were manufactured out of common input viz. H.R coil - rule 6(1) of CCR, 2004 is applicable - Confirmation of differential Demand upheld and appeal rejected - however benefit of reduced penalty of 25% granted subject to the appellant paying the confirmed amount within 30 days along with interest: CESTAT [paras 7, 8 & 9]



M/s Senthil Kumar Textile Mills Pvt Ltd Vs CCE (Dated: August 27, 2012)

Central Excise - Dutiable and exempted goods - Demand under Rule 6 of the CENVAT Credit Rules, 2004 - The appellants have deposited the credit attributable to the exempted goods before issue of Show Cause Notice - Penalty under Section 78 is set aside.


M/s Sangli Aluminium Extrusions Pvt Ltd Vs CCE (Dated: October 16, 2012)

CE - Allegation that appellant removed Aluminium extruded profiles without payment of duty and without accounting in statutory records - Revenue relying on the statement of CHA and Transporter to show that aluminium scrap which was imported and cleared by the CHA is supplied to the applicant and the same is the raw material for manufacture of excisable goods - there is no evidence except the statements of CHA and transporter to conclude that scrap has been delivered to the applicants - no evidence on record to show that verification of stock was conducted by department - there is also no evidence to show that applicant had received unaccounted scrap which was used in manufacture of finished goods which were cleared clandestinely - applicants have made out a case for complete waiver of pre-deposit of duty and penalty - Stay granted : CESTAT [para 3]


M/s Pricol Ltd Vs CCE (Dated: December 11, 2012)

Central Excise - Stay/Dispensation of pre-deposit - CENVAT Credit taken on “ Input Service Distributor's Invoices” - Credit denied on the ground that the invoices did not contain requisite particulars such as the identity of the input services and the identity of the input service providers - Complete waiver granted to the same assessee on similar issue - As long as it is not the case of the department that the input services were not used in the manufacture of excisable products by the said units, previous stay order can be followed as a precedent - Complete waiver granted.


CC & CE Vs M/s Rhl Profiles Pvt Ltd (Dated: January 3, 2013)

Central Excise – CENVAT Credit – Supplier of the inputs found non-existing and had no registration – Respondent assessee had taken reasonable precautions before taking credit - The appellant authority has passed detailed order and has rightly followed the various decisions of the Tribunal laying down that cre dit cannot be denied on the ground that manufacture of the goods has not paid the duty where the inputs stand received on the basis of valid documents and after taking all the reasonable precautions - In case invoices contained all the particulars and credit has been availed on bona fide belief, the denial of credit on the ground that dealer has not received the goods in accordance with the law, is neither just nor fair – Revenue appeals have no merit.



M/s Chandra Engineers Vs CCE (Dated: February 15, 2013)

CESTAT Stay Order to Continue even after six months – Dept not to take coercive action: Tribunal, has in clear terms stayed the recovery and since there is no evidence that delay in disposal of appeal is on account of dilatory tactics adopted by the Appellant, it would not be correct for the Department to initiate coercive action for recovery. On the question as to whether on expiry of six months from the date of stay order, the Appellant is required to file an application for extension of stay even if there is no change in circumstances and the delay beyond six months in disposal of appeal is not attributable to him, Hon'ble Gujrat High Court in its judgment in case of Poly Fill Sacks Vs. Union of India reported in (2005-TIOL-233-HC-AHM-CESTAT) has held, “ The contention on behalf of Revenue that the assessee must approach the Tribunal and seek extension of stay already granted is misconceived - at least in relation to orders of the Tribunal made before 11.05.2002….. However, in case where the Revenue finds that a particular assessee having obtained stay is adopting dilatory tactics, it is always open to Revenue to move the Tribunal in such an eventuality” In this case, since the stay order dtd . 11.05.2012 does not mention the period, its duration has to be treated as co-terminus with the disposal of appeal. Therefore while the application for early hearing is dismissed, the Department is, directed not to take coercive action for recovery.


M/s Surya Roshni Ltd Vs CCE (Dated: September 6, 2012)

Central Excise - Goods cleared to SEZ without payment of duty - Whether they are 'Exempted Goods' or 'Exported goods' - Application of provisions of Rule 6 of Cenvat Credit Rules, 2004 - The term "exempted goods" as defined in Rule 2(d) in Cenvat Credit Rule means excisable goods which are exempted from the whole of the duty leviable thereon including the goods chargeable to nil ra te of duty. Goods when cleared to SEZ are neither chargeable to nil rate of duty nor these goods are exempted from payment of duty by virtue of some exemption notification issued under 5A( 1) of the Central Excise Act, 1944. The goods supplied to SEZ Developers are treated as export in terms of the definition of this term as given in Rule 2(m) of SEZ Act'2005. Since the supplies to SEZ Developers are export, the same cannot be treated as "exempted goods" and hence the Provisions of Sub-Rule (1), (2) & (3) of the rule 6 of the Cenvat Credit Rules, 2004 would not be applicable. (Para 6)


M/s Tata Yazaki Autocomp Ltd Vs CCE (Dated: August 14, 2012)

CENVAT Credit taken of Service Tax paid on housekeeping, gardening, nurses and ayahs employed in factory - major amount of Rs.3,02,707/- mentioned in SCN pertains to housekeeping and gardening services in respect of which issue Tribunal has allowed CENVAT Credit by treating them as Input services in terms of rule 2(l) of CCR, 2004 - amount involved in other two services is only Rs.6816/- - pre -deposit waived and stay granted: CESTAT [para 5]


Indian Oil Corporation Ltd Vs CCE (Dated: December 18, 2012)

CENVAT - applicant engaging advertising agency who in turn engaged the services of broadcasting company for broadcasting the advertisement - ST paid on broadcasting service availed as CENVAT credit by applicant - based on Board Circular 01.11.1996, it appears applicant has prima facie case in favour - Pre -deposit of Rs.3.62 crores waived and Stay granted: CESTAT [paras 6 & 7]

Also see analysis of the O rder


Larsen & Toubro Ltd Vs CCE (Dated: October 22, 2012)

CENVAT - appellants are providing various taxable services such as consulting engineering, erection, commissioning and installation etc. at various customers places and paying Service Tax from Powai works - Revenue objecting for taking credit of ST

paid in respect of taxable services ‘received' at customers places by appellant - since applicants are paying ST in respect of taxable service rendered at customers places, applicant has a strong case for waiver of pre-deposit - Stay granted: CESTAT [paras 8 & 9]


M/s Zenith Multiple Wires Pvt Ltd Vs CCE (Dated: January 31, 2012)

Department initiating recovery proceedings - since stay applications have not been listed so far, there shall be an order of interim stay of recovery till appellate authorities dispose of the application for stay in view of AP HC decision in Ultra Tech (2013-TIOL-23-HC-AP-CX) - Registry to list stay applications: CESTAT [para 2]


Shri Om Prakash Punjabi Vs CCE (Dated: September 3, 2012)

Central Excise - Stay/Dispensation of pre-deposit - Fraudulent claim of rebate by procuring locally made watches and over-valuing the same in the export documents and paying the duty, after availing ineligible CENVAT credit - No prima facie case has been made out for waiver of pre-deposit - Rs 40 lakhs ordered to be pre -deposited by the applicants.


M/s Om Electricals Vs CCE (Dated: November 16, 2012)

Central Excise - CENVAT Credit availed on the inputs used by the intermediate manufactures who were under small scale exemption - Appellant admittedly manipulated the records to include their name in the input invoices to claim the credit under job work though actually the intermediate manufactures were not job-workers - In view of payment of credit along with interest and also in view of the fact that the appellant could have availed the credit if they had followed proper procedure, penalty under Section 11 AC is set aside.


CCE Vs Garware Marine Industries Ltd (Dated: December 12, 2012)

CE - There is no ground in the appeal of the Revenue to say that the impugned order is passed in violation of the provisions of the CEA, 1944 or the Rules - Only ground given in appeal is that the order passed by the Commissioner(A) giving relief is not acceptable - No reason is given as to why the order of the Commissioner(A) is not acceptable - Revenue appeal dismissed: CESTAT [para 4]


Vidharbha Cables Vs CCE (Dated: October 17, 2012)

CE - Appellant procuring duty paid inputs and sending the same to job workers on endorsed invoices for conversion into Copper and Aluminium wires - job worker taking credit and paying duty at concessional rate by availing SSI exemption - appellant availing higher notional credit of MODVAT under rule 57B of CER, 1944 - whether job workers could avail credit on raw materials purchased by appellant from MMTC under actual user conditions has not been considered by the Authorities below - matter remanded: CESTAT [paras 7 & 8]



Kothari Poly Extrusion Vs CCE (Dated: August 28, 2012)

Appellant manufacturing PVC pipes and availing SSI exemption 9/1998-CE - Revenue seeking to deny the benefit on the ground that appellants were clearing the goods in the brand name “Kothari” which is registered in the name of Kothari Industries under Patent & Trademark Act - in view of SC decision in Rukmani Pakkwell Traders (2004-TIOL-51-SC-CX) SSI benefit cannot be extended: CESTAT [para 7]

Contention that the demand is wrongly confirmed by denying the benefit of notfn. 9/98-CE for the period March 1999 to July 1999 although the same was rescinded and new notfn. 9/99-CE came into force is without any merit as the appellant himself had in the declaration filed in the year 2000 claimed the benefit of notfn. 9/98-CE - provisions of both the notifications are the same - denial of benefit is on the ground that the appellant manufactured and cleared goods in the brand name which does not belong to them - no merit in appeal: CESTAT [para 8]


Jai Corporation Ltd Vs CC & CE (Dated: November 6, 2012)

Appellant engaged in manufacture of G.P. coils and clearing on payment of duty - SCN issued on the ground that appellants are clearing GP coils to M/s Ujwal Metal Pvt. Ltd. at a lower value than to other buyers and seeking differential duty - appellant taking the plea that the difference of price is on account of packing cost of the coils and the GP coils cleared to M/s Ujwal Metal Pvt. Ltd. is without any packing - however, since no evidence produced in support of this submission, adjudicating authority confirming demand and which was upheld by Commr(A) - even before the Bench no such evidence produced - therefore there is no infirmity in the orders of the lower authority - Demand correctly confirmed - Appeal dismissed: CESTAT [para 6]


Kumar Housing Corporation Ltd Vs CCE (Dated: November 21, 2012)

Notfn. 153/93-Cus & 52/2003-Cus - although in the SCN there is a demand of Central Excise duty and a demand of Customs duty, the adjudicating authority has confirmed the total duty without recording any finding regarding the demand of Central Excise duty - matter requires reconsideration by adjudicating authority afresh - matter remanded for de novo adjudication: CESTAT [para 10]


CCE Vs M/s Triveni Ayurvedic Research Pharmaceuticals (Dated: December 6, 2012)

Central Excise - Ayurvedic soap manufactured without the aid of power and classified under CETH 3401.12 attracting Nil rate of duty - Revenue appeal on the ground that power was used in manufacture - Usage of power for unloading the raw material cannot be held as “ manufacture with the aid of power” as also held in preceding decision of the Trib unal against which no appeal was filed by the department - Revenue appeal seeking classification under 3401.19, chargeable to duty on MRP basis has no merit.



CCE Vs Fag Bearing India Ltd (Dated: October 12,2012)

Central Excise - 100% EOU - Debonding - EOU and DTA located in same premises - Requirement of transfer of goods and issue of invoice for availing credit in DTA Unit - Physical removal of inputs and capital goods from EOU never took place since EOU and DTA was always part of the same premises and did not have separate registration certificate. Hence, procedural requirement of issuing invoices for transferring the goods to DTA does not arise. Once the duty on capital goods and inputs were paid, for debonding of EOU, it can be said that the same stood transferred to the DTA unit. Therefore, credit has been taken correctly in the first instance and therefore question of demanding interest does not arise. (Para 5)


M/s Doshion Ltd Vs CCE (Dated: October 31, 2012)

Central Excise - CENVAT - Input Service - Input Service Distributor - Non-obtaining of registration - Proportionate distribution of credit - The assessee has simply utilised the credit at one unit instead of distributing it to various units. During the relevant period, there was no restriction for utilisation of such credit without allocating proportionately

to various units. The omission to take registration as an Input Service Distributor is only a procedural irregularity and can be condoned. The assessee has not got any extra benefit, as from the cenvat credit available to them, 20% of service tax payable only was paid and balance was paid in cash. Proper distribution would have enabled them to utilise full credit. It is totally Revenue neutral and no loss has been caused to the Revenue. In the absence of any legal requirement to avail credit based on the services received during the relevant time, the procedural irregularity has to be ignored and the demand confirmed has to be set-aside. Service tax credit paid before 10.09.2004, is not available to the manufacturing unit and therefore, correctly disallowed. (Para 5 & 6)


Cabot India Ltd Vs CCE (Dated: December 20, 2012)

CE - S.4 of CEA, 1944 - Valuation - Sale of goods to buyers at appellants premises - loading and transportation done on behalf of the buyers by appellants - transportation charges recovered from buyer on actual basis but no loading charges recovered from buyers - since Revenue has failed to prove that appellant has recovered any amount over and above the transaction value shown in the invoice towards loading charges, demand not sustainable - report of R/s /Adjudicating authority that no loading charges has been paid by appellant for loading of goods is not controverted - in such a scenario penalty also not imposable - appeal allowed of appellant and that of Revenue dismissed: CESTAT [paras 7 & 8]


CCE Vs M/s Anita Synthetics Pvt Ltd (Dated: November 21, 2012)

Central Excise - 100% EOU - Deemed Exports vis-à-vis Physical Exports - Entitlement to DTA Sales - Once Development Commissioner gives permission to a 100% EOU to sell goods in DTA up to a specified value, Revenue cannot dispute it holding that for fixing the limit only physical exports and not deemed exports should be taken into account. (Para 6)


M/s Aggarwal Industries Vs CCE (Dated: December 13, 2012)

CE - In the earlier round of appeal, Tribunal had on 15.07.2011 directed appellant to deposit the entire amount of duty liability within 8 weeks and report compliance to Commissioner(A) to enable him to pass order on merits – on the date of personal hearing on 7.2.2012 appellant informed Commissioner(A) that they have not made the pre -deposit and consequent upon which their appeal was dismissed by Commissioner(A) – modification application filed before Tribunal was also dismissed on 10.10.2011 – amount deposited by appellant on 22.03.2012 after dismissal of appeal by Commissioner(A) – order passed by Commr(A) is correct and does not suffer from any legal infirmity – Appeal rejected: CESTAT [paras 6 & 7]


Hotel Sai Siddhi Pvt Ltd Vs CCE (Dated: November 29, 2012)

COD application dismissed earlier cannot be restored as Tribunal cannot review its own order -ROA not maintainable hence dismissed: CESTAT [paras 5 & 6]


Punjab Telenet Cables Ltd Vs CCE & ST (Dated: December 3, 2012)

CE - Valuation - Rule 10A - in terms of agreement, the appellant are required to purchase the raw materials for the manufacture of moulded furniture from the persons approved by M/s Neelkamal Limited - it cannot, therefore, be said that the raw materials have been supplied by M/s Neelkamal Limited or their authorised persons - prima facie appellant is not covered by the definition of 'job worker' under Rule 10A - Pre-deposit waived and Stay granted: CESTAT [paras 5 & 6]



CCE Vs M/s Rohit Industries (Dated: November 26, 2012)

CE - differential duty paid on Supplementary invoices - interest thereon is payable u/s 11AB of the CEA, 1944 from the date of clearance of goods till the date of payment of differential duty - matter settled by Supreme Court in case of SKF India Ltd. (2009 TIOL-82-SC-CX) - penalty u/s 11AC of the CEA, 1944 not imposable as prior to the decision of the Apex Court, there were many decision which are favour of the assessee - penalty set aside - Appeal filed by revenue disposed of: CESTAT [paras 5 & 7]


CCE Vs M/s Rucha Engineers Pvt Ltd (Dated: November 26, 2012)

CE - Supplementary invoices issued in respect of enhancement of rate with retrospective effect - differential duty paid - respondents are liable to pay interest u/s 11AB of CEA, 1944 in respect of the differential duty paid - matter settled by SC in case of M/s SKF India Ltd. (2009 TIOL-82-SC-CX) - order of Commissioner(A) set aside and order passed by adjudicating authority restored - Revenue appeal allowed: CESTAT [paras 7 & 8]


Sahyadri Ssk Ltd Vs CCE (Dated: August 27, 2012)

Rule 6 of CCR, 2004 - Applicant crushing sugarcane and sugarcane juice is used for the manufacture of sugar whereas Bagasse & compost fertilizer, which are residues, are cleared without payment - Revenue demanding 5/10% of the price of exempted goods u/r 6 of CCR, 2004 - since bagasse emerges at sugarcane crushing stage, there is no possibility of any input-chemicals etc. having been used - also the SCN is defective inasmuch as it does not indicate as to which are inputs/input services which have been used in the generation of bagasse or press-mud which is converted into bio -compost - no cause for demand u/r 6 of CCR, 2004 - issue settled in case of Indian Potash Ltd. & Manakpur Chini Mills - Appeal allowed: CESTAT [para 5]


Universal Packaging Vs CCE (Dated: January 30, 2013)

CE - Three orders -in-original decided by Commissioner(A) under a compendious order - SCN by Registry upheld as appellant agreeing to file two additional appeals - Revenue directed not to take any coercive action till final disposal of Stay application: CESTAT [para 3]


Jakap Metind Pvt Ltd Vs CCE (Dated: June 29, 2012)

CE - Rejected goods cleared as Scrap on payment of duty - Revenue seeking reversal of CENVAT Credit taken u/r 16(1) of the CER, 2002 when goods were received back in factory from customers - duty paid on Scrap not considered while raising demand - the rate of duty applicable is almost the same on the scrap as paid by the applicant and the CENVAT credit as demanded by the department - Prima facie strong case in favour - Pre -deposit waived and Stay granted: CESTAT [para 5]



Sunil Kumar Gupta Vs CCE & C (Dated: September 4, 2012)

Central Excise - Condonation of Delay - Appellants seek condonation of the delay of 2649 days - It is the oft-repeated submission of the counsel that the COD applications are liable to be allowed on the sole ground of pendency of their writ petition before the High Court - No judicial authority has been cited before us in support of the plea - The pendency of the writ petition filed by the appellants who were conscious of the statutory remedy cannot per se constitute a valid ground for condonation of the deliberate delay of over seven years - The appellants have not stated any other valid reason (Para 4 & 5).


M/s Rajeswari Metallurgicals Ltd Vs CCE (Dated: July 13, 2012)

Central Excise - Stay / Pre -deposit of Duty - Demand of duty from a Dealer - The case of the Department is that the appellants received only the invoices and not the goods - Held that : The case made out against the appellants by the Department is singularly based on a statement taken at the source of the goods - This certainly does not inspire confidence - The duty has been demanded from a dealer, which is not legal - Waived pre-deposit (Para 1).


M/s Universal Conveyors Vs CC (Dated: August 30, 2012)

Central Excise - Limitation - SCN issued demanding duty for non-inclusion of cost raw materials supplied by principal manufacturer for goods manufactured on job work - The invoice issued in connection with the clearance of the job worked goods clearly indicated the amount of duty paid by the appellant on the cost of their own inputs plus job work charges including margin of profit - There is no evidence of the appellant having suppressed material facts with intent to evade payment of appropriate duty of excise on the job-worked goods - Entire demand of duty is time-barred (Para 4).


CCE,C & ST Vs M/s Keshardeep Pressing (I) Pvt Ltd (Dated: January 8, 2013)

Respondent assessee is not a successor of business and, therefore, is not liable to pay the arrears of Central Excise dues incurred by registered unit whose factory was taken over by the Financial institution and auctioned and which premises was purchased on lease from the successful bidder by them - Registration certificate cannot be revoked by lower authorities: CESTAT [paras 7 & 8]



M/s Glastronix Vs CCE (Dated: September 7, 2012)

Central Excise - CENVAT - Denial of CENVAT Credit on Outdoor Catering Service used in the factory canteen to supply food free to the factory workers/employees - The case must be adjudicated afresh by the original authority by taking into account the CAS-4 certificate and all connected submissions and arguments made by the both parties (Para 3).


M/s Tyco Sanmar Ltd Vs CCE (Dated: August 28, 2012)

Central Excise - CENVAT Credit on services like garden maintenance, office maintenance and book binding service - Credit is admissible in view of the judgements of High Court in case of Ultratech Cements Limited and Millipore India Pvt Ltd.


CCE Vs M/s Lear Automotive India Ltd (Dated: January 15, 2013)

Central Excise – CENVAT Credit – CENVAT Credit is admissible on the gardening services – Issue stands settled by the High Court of Karnataka in favour of the assessee – Revenue appeal has no merit.


M/s Sti Industries Vs CCE (Dated: July 13, 2012)

Central Excise – CENVAT – Denied CENVAT Credit on the ground that the appellant has not recorded the receipt of the inputs in RG 23A Part-1 register - In the year 2000, the necessity or the statutory requirement of maintaining RG 23A Part-1 & Part 2 registers have been done away with and it is for the assessee to justify his claim for the Cenvat credit with the help of the private records maintained by him - The assessee is able to prove that they have maintained the records which indicate the receipt of the inputs and consumption thereof which is not considered by the lower authorities in its proper perspective - The appellants have produced certificates issued by the said supplier of the inputs wherein said supplier had indicated that the inputs were delivered to the appellant factory in the suppliers own truck/tempo, hence they have not issued any LR, as against these evidences Revenue has not put forth any contrary evidence in the form of any inculpatory statement of the appellant's functionaries, the driver of tempo or of the supplier of inputs - In the absence of any contrary evidence, the appellants have been able to factually prove that they have received the inputs and consumed the same, inadvertently not entering the same in RG 23A Part-1 register (Paras 12).


M/s Mahanagar Gas Ltd Vs CCE (Dated: October 29, 2012)

CENVAT Credit is available on the basis of debit notes provided all the ingredients as required in the invoices are contained therein - issue has been decided by Tribunal extending such benefit - prima facie case in favour - Stay granted: CESTAT [para 5]


Murli Industries Ltd Vs CCE (Dated: September 24, 2012)

Appellant engaged in the manufacture of Kraft paper board - Revenue denying CENVAT credit of Rs.3.54 Crores on the ground that applicant has wrong availed credit and paid duty although the goods are absolutely exempted by notification 4/2006-CE as amended - adjudicating authority also confirming demand of Rs.61 lakhs u/s 11D of the CEA, 1944 - it is seen that there are conditions attached to the exemption provided at sr. no. 90 of the notification - since the notfn is subject to condition provided at sr. no. 10, prima facie there is merit in the applicant's contention that the notification is not an absolute exemption - pre -deposit waived and stay granted: CESTAT [paras 7 & 8]


Chaphekar Engg Pvt Ltd Vs CCE (Dated: November 30, 2012)

CENVAT Credit - rule 9(1)(bb) of CCR, 2004 does not have retrospective effect - provisions of rule 9(1)(b) of CCR, 2004 does not apply to Supplementary Invoices issued in August, 2008 in respect of Service Tax paid - applicant has made a case for total waiver of dues - Pre-deposit waived and stay granted: CESTAT [para 5]


2013-TIOL-346-CESTAT - BANG

M/s Federal Mogul Goetze India Ltd Vs CCE (Dated: September 20, 2012)

Central Excise - Stay / Pre -deposit of Duty - CENVAT - The demand raised on the ground that the appellant ought not to have paid duty on chrome plating as the same did not amount to manufacture a nd that the recipient was not entitled to take credit of duty paid by the appellant - Job worker-appellant cannot be held to have provided any exempted services attracting the provisions of Rule 6 of CENVAT Credit Rules (Para 3, 4 & 5).


CCE Vs M/s Aruna Paper Board Mills (P) Ltd (Dated: August 31, 012)

Central Excise - CENVAT - Limitation - CENVAT Credit on Capital Goods used on MS plates, angles, channels, beams etc., used for the fabrication/manufacture of machinery as part of expansion of the plant - The Respondents had been filing returns from month to month indicating therein the CENVAT credit availed on capital goods, inputs etc. - The invoices on the basis of which the CENVAT credits were availed were also furnished with these returns - These invoices clearly indicated the correct description of the goods apart from the amount of duty paid thereon - Thus the material facts were duly disclosed to the Department by the assessee - There was no suppression of facts by them, let alone with intention to evade payment of duty - The SCN invoked the extended period of limitation without any valid ground (Para 3 & 4).


M/s Bharat Chemical Vs CCE (Dated: January 7, 2013)

CENVAT - Appellant having two factories, one where manufacturing takes place and the other where the boiler is installed - furnace oil is transferred from one factory through pipeline for generation of steam in boiler and steam is transmitted through pipeline to manufacturing unit - CENVAT credit on Furnace oil and service availed in unit where boiler is installed cannot be denied on the ground that the same is outside the manufacturing premises - strong prima facie case for waiver of pre-deposit: CESTAT [para 4]


Atul Synthetic Processors Pvt Ltd Vs CCE (Dated: January 22, 2013)

CE – S.35F of CEA, 1944 - Act of the Commissioner(A) shows that there is a lack of knowledge of law as to how to deal with appeals filed – as there is no speaking order for pre-deposit, order dismissing appeal for non-compliance of oral directions to make pre -deposit does not deserve merit – matter needs re-examination – matter remanded – no coercive action to be taken during pendency of appeals before Commissioner(A) : CESTAT [paras 4 & 6]


Mother Dairy Fruit And Vegetable Pvt Ltd Vs CCE (Dated: November 12, 2012)

EOU clearing fruit pulp to own DTA unit for processing into juice and sale thereof - Revenue demanding duty from EOU on MRP basis on the juice cleared on the ground that both units are related persons - payment of duty by EOU proper - applicant has

prima facie case in favour - Stay petition allowed: CESTAT [para 6]



M/s DCL Bulk Technologies Pvt Ltd Vs CCE (Dated: September 25, 2012)

Central Excise - Stay / Pre -deposit of Duty - Demand - The duty liability has been fastened on the appellant on the premise that the appellants floated a dummy unit and clandestinely removed excisable goods without payment of duty - Held that: No statements were recorded from the parties concerned - The claim for CENVAT credit raised by the appellant was not considered - The appellant, if held liable to pay duty on the subject goods, should also get the benefit of CENVAT credit on the bought-out items valued at more than Rs.40 lakhs - Granted waiver of the adjudged dues (Para 1).


Lanxess India Pvt Ltd Vs CCE (Dated: November 29, 2012)

CE - Revenue alleging that process does not amount to manufacture hence CENVAT credit not permissible - applicant has paid duty more than the credit availed and part of duty has been paid through PLA - once duty on final product has been accepted by Revenue, credit on inputs cannot be denied - pre-deposit waived and stay granted: CESTAT [para 3]


M/s Indian Acrylic Ltd Vs CCE (Dated: July 19, 2012)

Central Excise - CENVAT - Commission paid to overseas agents - Payment of service tax from cenvat credit - Rule 2(r) of Cenvat Credit Rules confers status of service provider to an assessee who paid the Service Tax as a recipient of service. If the assessee is the person liable to pay service tax, he would be deemed to be provider of taxable service by fiction of law and, therefore, the service provided by him will be deemed to be output service under Rule 2(p) of the Rules. Therefore, the assessee is entitled to utilise the Cenvat credit for discharge of Service Tax for the commission paid to the overseas agents. (Para 8 & 9)


Ambuja Cement Ltd Vs CCE & ST (Dated: 20.11.2012)

CENVAT credit in respect of cement and other steel items used in the construction of Silos within the factory was proposed to be denied on the ground that Silo is not excisable goods as per CEA, 1944 - adjudicating authority denying credit on the ground that Cement, angles, channels etc. are not eligible for CENVAT credit as per explanation added to rule 2(k) of the CCR, 2004 w.e.f 07.07.2009 - adjudication order is beyond the scope of the show-cause notice, therefore, applicants have a strong case in their favour - pre -deposit of dues waived and stay granted from recovery: CESTAT [para 4]


M/s Trans Electric Vs CCE (Dated: December 11, 2012)

CE - Appellant not able to produce Notification under which they cleared the goods without payment of duty - Pre -deposit ordered of the duty amount - in the interest of justice more time granted for payment - Modification application dismissed: CESTAT [para 1]



M/s Hydro Electro Machinery Vs CCE (Dated: October 29, 2012)

CENVAT credit on inputs purchased directly from the second stage dealer although order was placed on agents - applicant's name is found as consignee in the invoices issued by the second stage dealer and goods directly supplied to appellant - strong case for waiver of pre -deposit - Stay granted: CESTAT [para 5]


Hindustan Copper Ltd Vs CCE (Dated: September 10, 2012)

CCR, 2004 - Appellant sending a quantity of 48.949 MTs of copper waste and scrap to job worker for manufacture of copper cathodes - they received back only 46.294 MTs of copper cathodes - since appellant failed to receive 2.655 MTs of copper cathodes within a period of 180 days, in terms of rule 4(5)(a) of the CCR, 2004 a demand issued for recovery of CENVAT Credit - appellant paying the duty involved along with interest to avoid litigation but equivalent penalty imposed in adjudication proceedings - in any manufacturing activity, process-loss occurs and so long as the losses are within reasonable limits they have to be permitted - Bench not aware of any technology available at present which eliminates process-loss - since the loss is only to the extent of 5.4% which is very reasonable and since department has not adduced any evidence of diversion of the material for some other purpose, action of imposing penalty on ground of suppression is bad in law - Penalty set aside and appeal allowed : CESTAT [para 5]


Hindalco Industries Ltd Vs CCE (Dated: September 21, 2012)

Car services used for transporting staff from their residences to the factory and back and to visit various government offices for day to day work is integrally connected with the manufacturing activity - Service Tax paid on car hire charges is permissible as CENVAT credit as it is an Input Service in terms of rule 2(l) of CCR, 2004: CESTAT [para 3]


Hiralal Punju Badgujar Vs CCE (Dated: December 24, 2012)

Due to traffic jam on account of visit of Hon'ble President of India to Mumbai, applicant reached the office of CESTAT late and by that time appeals were dismissed for non-prosecution – in view of reasons explained, order dismissing appeals recalled and appeals restored to original numbers: CESTAT [paras 4 & 5]


M/s Ewac Alloys Ltd Vs CCE (Dated: October 9, 2012)

S.4 of CEA, 1944 – Valuation – Related person - Argument that the applicant and L&T Ltd. do not have any mutuality of interest is debatable and needs to be examined in depth at the time of regular hearing - applicant has not produced any data/details at the time of hearing to buttress their contention that they have also made clearances to buyers other than L&T Ltd. - Prima facie applicant does not have a case for complete waiver of pre-deposit on merits - SCN issued on 03.02.2011 is prima facie hit by limitation – duty demanded in SCN 04.05.2011 is within time – pre -deposit ordered of Rs.1.80 Crores for obtaining stay: CESTAT [paras 8 & 9]



Fibre Foils Ltd Vs CCE (Dated: November 9, 2012)

Appellant paid service tax on GTA services under reverse charge during the period January 2005 to 15/06/2005 and availed credit of the tax paid on the strength of the TR-6 challan - prior to 16/06/2005, there was a lacuna in the Rule 9 of the CCR, 2004 inasmuch as TR-6 challan was not prescribed as a document for availing credit - the amendment made to the rule 9 by notfn. 28/2005-CE(NT) is only a correction and, therefore, is operational retrospectively - CENVAT credit rightly availed - Appeal allowed with consequential relief: CESTAT [paras 5 & 6]


M/s D M Exporters Vs CCE (Dated: September 18, 2012)

CE - There is no bar on the assessee if they failed to take CENVAT credit immediately on receipt of inputs but takes the credit later on - the only requirement is that the assessee has to take credit on the basis of supporting documents - appellant shifting factory from Dahisar to Bhiwandi and applying for registration of new premises on 01.07.2004 and being granted the same on 11.08.2004 - during the interim period, goods were stored temporarily outside factory premises and credit was taken later - Appeal allowed as appellant has rightly taken the credit: CESTAT [para 5.1, 5.2 & 6]


Ashok Alco-Chem Ltd Vs CCE (Dated: September 21, 2012)

Banking and Financial Services obtained by the assessee during the course of business of manufacture is an Input Service as defined in rule 2(l) of the CCR, 2004 - CENVAT Credit permissible - Appeal allowed with consequential relief: CESTAT [paras 4 & 5]


M/s Sarda Papers Ltd Vs CCE (Dated: November 26, 2012)

Since appeal itself was disposed of in the year 2006, there was no question of granting any extension of Stay - Miscellaneous application dismissed: CESTAT


Tata SSL Ltd Vs CCE (Dated: January16, 2013)

Commissioner(A) in remand proceedings enhancing the demand from Rs.17,107/- to Rs.1,78,051.18 - quantum of demand cannot be justified - prima facie applicant has made out a case for waiver of pre -deposit - Stay granted: CESTAT [para 6]



CEAT Ltd Vs CCE (Dated: November 30, 2012)

CE - No interest is payable on finalization of provisional assessment under Rule 7(4) of the CER, 2002 if the differential duty has been paid before finalization of assessment - issue settled by Bombay High Court in case of Ispat Industries Ltd. and which has been followed in case of Tata Motors Ltd. - Appeal allowed with consequential relief: CESTAT [para 4]


M/s British (India) Catalyst Pvt Ltd Vs CCE (Dated: August 27, 2012)

Central Excise - SSI Exemption - Brand Name - Clearance of Goods bearing brand name of foreign company by availing benefit of exemption under Notification No.s175/86-C.E. and 1/93-C.E. - It is not in dispute that the brand name belonged to the foreign company - The appellant's claim for SSI benefit under Notification No.175/86-CE and Notification No.1/93-CE is hit by para (7) and para (4) respectively of the notifications - Each of these barred SSI exemption to “the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for grant of exemption under this Notification” - The appellant could not have claimed SSI benefit in respect of the branded goods (Para 6.1).

Central Excise - SSI Exemption - The appellant contended that the brand name was affixed on the package and not on the goods as such and therefore para 7/4 of Notification No.175/86-CE/No.1/93-CE would not be applicable - It is not the case of the appellant that two or more units of diesel exhaust purifiers were cleared in one carton or other container - Each diesel exhaust purifier was cleared in one package (box/carton) affixed with the brand name - Even the invoice under which the package was cleared mentioned the brand name - Followed the decision in the case of Trupti Multi Services (supra) - In the cited case, the Tribunal rejected the assessee's argument that, as the brand name was affixed on the container and not on the cylindrical blocks, the benefit of the Notification was not liable to be denied (Para 6.2).


M/s Andhra Sugars Ltd Vs CCE (Dated: August 16, 2012)

Central Excise - Stay / Pre -deposit of Duty - CENVAT - GTA Service - Eligibility of Credit of Tax paid on GT A Service for outward transportation of final product from the factory to customers' premises during the period from August, 2009 onwards - Followed the decision of the Tribunal in the case of Madras Cements - The appellant is not entitled to claim CENVAT credit on the GTA service used by them for transportation of their final product from the place of removal for any period after 31/3/2008 (Para 4 & 5).


M/s Prakash Metal Works Vs CCE (Dated: May 30, 2012)

Central Excise - SSI Exemption - Aggregate Turnover computation - Goods cleared at nil rate of duty, even though cleared clandestinely, cannot be included for calculating the aggregate value of clearances by an SSI unit. The adjudicating authority has not recorded anything to hold that Pat Scrap arising during manufacture of aluminum circles, is manufactured goods. Matter remanded to the adjudicating authority to re-quantify the aggregate turnover by deducting the value of the goods having nil rate of duty and to decide whether pat scrap can be considered to be manufactured goods.(Para 11 & 12)


M/s Chamundeswari Sugars Ltd Vs CCE (Dated: August 14, 2012)

Central Excise - Stay / Pre -deposit - CENVAT - Clearance of both dutiable and exempted goods - Demand of amount @ 10%/5% of the value of press-mud under Rule 6(3) of the CENVAT Credit Rules, 2004 (CCR) on the premise that press-mud was an ‘exempted product' - Held That : “Manufacture” as defined under the Act pertains to any process leading to a “manufactured product” - It is undeniable that press-mud which was generated in the appellant's factory during the material period was not a “manufactured product” - The fundamental test of manufacture fails and the arguments based on the aforesaid explanation to the definition of excisable goods are inconsequential - Press-mud cannot be considered to be an ‘exempted excisable goods' - Press mud does not figure anywhere in the 1 st Schedule to the Central Excise Tariff Act - Rule 6(3) is not attracted and consequently the impugned demand is unsustainable - Waived pre -deposit (Para 2).


M/s Mecgale Pneumatics Pvt Ltd Vs CCE (Dated: September 14, 2012)

CENVAT – Inputs stored in premises outside the factory and which Plot is sought for inclusion in the Registration Certificate – Demand notice issued for denial of CENVAT credit on the ground that no permission had been obtained in terms of Rule 8 of CCR, 2004 – As the Assistant Commissioner accepted the request and included the same in the Registration Certificate albeit after more than a year, applicant has a prima facie strong case in favour – Pre-deposit waived and Stay granted: CESTAT [para 5]



M/s Mankoo Machine Tools Pvt Ltd Vs CCE (Dated: August 8, 2012)

Central Excise - SSI Exemption - Brand name - Trade mark being used continuously prior to its registration by third party - Demand - Stay / Dispensation of pre -deposit -

As per section 34 of Trade Mark Act, 1999, Registration of trade mark by some one would not entitle to that person to interfere with or restrain the use of identical trade mark by any person or provided the said person or his predecessor has continuously used their trade mark from a date prior to the registration of trade mark by the third party. The assessee has been using the brand name on his products much prior to registration of brand name in favour of third party. Prima facie it cannot be said that the assessee was using the brand name with the intention of indicating a connection with the assessees' goods and such other person or used the name in such a manner that it would indicate such connection. Thus prima facie he cannot be denied the benefit of exemption notification. Case made out for total waiver of the pre-deposit of the duty and penalties. Stay granted. (Para 9 & 10)


M/s Preci Tech Plastics Vs CCE (Dated: July 24, 2012)

Central Excise - Stay/Dispensation of pre-deposit - Flushing Cisterns and Toilet seats manufactured by job workers who are covered under SSI exemption and supplied to the applicant who cleared them after putting brand name and packing - Prima facie, labeling and packing of the impugned goods does not come under the definition of "deemed manufacture" as per Section 2(f) of the Central Excise Act, 1944 - Complete waiver of pre -deposit granted.


M/s Krishna Technochem Pvt Ltd Vs CCE (Dated: September 13, 2012)

Central Excise - Classification - Solvent Oil - Adjudicating Authority classified the goods under chapter heading not proposed in the SCN - Stay / Dispensation of pre-deposit - The issue involved is classification of solvent oil proposed to be classified by the Department as motor spirit. However, the Commissioner classified it under a different sub-heading, which was neither proposed nor alleged in the Notice. The Commissioner has traveled beyond the scope of the show cause notice and the assessee could not make their submission relating to the sub-heading under which the Commissioner has classified their product. The assessee has prima facie made out a case for total waiver of the pre -deposit of the duty and penalties. Stay granted. (Para 7)


Eco Cane Sugar Energy Ltd Vs CCE (Dated: July 31, 2012)

CENVAT - Bagasse & Press mud arising during the manufacture of sugar and molasses are waste and not final products - no need to pay any amount of 5%/10% in terms of Rule 6 of CCR, 2004 on the ground that common Inputs/Input Services were used in the manufacture - provisions of Income Tax are not parallel to the provisions of Central Ex cise Act and Rules hence the terms ‘produce' or ‘manufacture' as interpreted by the Supreme Court are not applicable in the facts of the present case - Order set aside and Appeals allowed: CESTAT [paras 5.1, 5.2, 7 & 8]



Hindustan Zinc Ltd Vs CCE (Dated: Novermber 22, 2012)

Rule 2(l) of CCR, 2004 - Rent-a-cab service availed for carrying employees’ children to schools/tuition centers and dropping them back home is not an Input Service as it is a welfare activity - CENVAT credit demand of Rs.62,435/- upheld along with interest but penalty is waived as issue involves interpretation of CCR : CESTAT [para 10]

Rent-a-cab service availed for transportation of workers/employees from their factory to home and back is an Input Service in terms of rule 2(l) of CCR, 2004 - CENVAT credit of Rs.64,47,317/- is admissible: CESTAT [para 7] Ambulance service is a Input Service in terms of rule 2(l) of CCR, 2004 - Section 45(4) of the Factories Act, 1948 casts an obligation that every factory maintains first-aid service facility and if the strength of employees of factory is more than 500, the factory is required to maintain ambulance room (medical room) of prescribed size containing prescribed equipment and medical facilities besides nursing treatment etc. - It is obvious that every factory owner is under legal obligation to ensure basic medical facility for the welfare of the employees who may suffer from injury in accident or may suddenly fall sick - therefore, hiring of ambulance for carrying sick employees to the hospital for treatment is extension of the aforesaid legal obligation of the assessee - health of the workers in a factory has direct relation to its output and, therefore, service tax paid on ambulance service i.e. rent-a-cab service for ambulance, by the appellant in respect of welfare of employed has nexus with the production of final product - Commissioner has fallen in error in disallowing credit - CENVAT credit of Rs. 48,617/- admissible : CESTAT [para 8]


CCE Vs M/s Hindustan Lever Ltd (Dated: July 11, 2012)

Respondent cleared "Wheel Blue Cakes" weighing 250 gms. and 300 gms. respectively at the same M.R.P. of Rs.5.25 per cake - whereas 250 gms. detergent cakes were cleared in the packets of 60 pieces at assessable value of Rs.204.75 detergent cakes of 300 gms. in packets of 50 cakes at assessable value of Rs.170.63 - Revenue of the view that respondent has undervalued the detergent cake weighing 300 gms. each for the purpose of excise duty - demand issued dropped by adjudicating authority and order upheld by Commr(A) - Department filing appeal before CESTAT - Held: Revenue contention of the is misconceived for the reason that explanation 2 to Section 4A deals with the situation where on the same package of an excisable goods more than one M.R.P. is declared - It is not the case of the Department that on any of the packets containing 300 gms. detergent cake more than one retail price was declared - Merely because under marketing scheme the respondent had cleared detergent bar of 300 gms. at the rate equivalent to the detergent cake of 250 gms. it cannot be said that Section 4A of the CEA, 1944 would not come into play and the transaction value for the purpose of excise duty is to be assessed as per s. 4 of CEA, 1944 - order of lower authority cannot be faulted - Revenue appeal dismissed: CESTAT [paras 6 & 7]


Rajarambapu Patil Ssk Ltd Vs CCE (Dated: September 12, 2012)

Common inputs - Bagasse arising during the crushing of sugarcane while manufacturing sugar - whether Rule 6 of CCR, 2004 is to be applied for demanding an amount of 5% of the price of bagasse cleared without payment of duty - the Madras High Court decisions in Devar Sugar and Abkari Co. Ltd. & Deccan Sugar and Abkhari Co. Ltd. were not cited before the Division Bench when they heard the case of Shree Chh. Shahu SSK Ltd. - in view of contrary decisions on subject matter, fit case for grant of stay - pre-deposit waived and stay granted: CESTAT [paras 5 & 6]


Reliance Industries Ltd Vs CCE & ST (Dated: August 27, 2012)

CENVAT - Credit of Service Tax in respect of taxable services of insurance of workers retiring under VRS - in applicant's own case in Appeal no. E/477/12, pre-deposit of dues was waived - in view of the same, Stay petition is allowed by waiving pre -deposit: CESTAT


Siemens Ltd Vs CCE (Dated: September 29, 2012)

Applicant engaged in manufacture of "Simatic Programmable Logic Controller" and claiming classification under Tariff Heading 84.71 of CETA, 1985 whereas Revenue approving classification under 85.37 of Tariff - Commissioner(A) holding in appellants favour but order remanded in Revenue appeal by CESTAT to decide issue afresh after considering the SC decision in N.I.Systems India P. Ltd. (2010-TIOL-52-SC-CUS) where it is held that programmable process controllers and programmable logic controllers are classifiable under chapter 90 - claim of classification under heading 90.32 rejected by Commr(A) - since earlier order of Commr(A) was in favour of appellant and this issue had gone to the Supreme Court, prima facie applicants have a strong case in favour - pre -deposit waived and stay granted: CESTAT [para 5]


M/s National Rayon Corporation Ltd Vs CCE (Dated: January 8, 2013)

CENVAT - Rule 3(5A) of CCR, 2004 - Scrap of capital goods cleared during the period 2005 to 2009 without payment of duty - no evidence adduced by the appellant in support of their claim that no CENVAT credit had been availed in respect of such capital goods - Pre -deposit ordered of Rs.10 lakhs: CESTAT [para 6]



Pepsico (India) Holdings Pvt Ltd Vs CCE (Dated: October 9, 2012)

Reversal of CENVAT credit on glass bottles and cans broken or busted during the filling opera tions of aerated water - Board circular dated 10.09.1975 allowed tolerance limit of 0.5% in respect of breakage of bottles due to handling - Circular withdrawn on 07.09.2010 and hence to be considered prospective in nature - it cannot be said that appellant suppressed material particulars with intent to evade payment of duty - prima facie appellant has a strong case for waiver of duty demand which is beyond the normal period of limitation - in respect of demand for the normal period, applicant has already paid more than Rs.5 lakhs - pre -deposit of remaining dues waived and stay granted: CESTAT [para 7]


CCE Vs M/s Oblipuram Mining Company (P) Ltd (Dated: September 3, 2012)

Central Excise - Power to remand by Commissioner (Appeals) - The reasons recorded by the Commissioner (Appeals) for sending the case back to the original authority, are genuine - The original authority had not given a reasonable opportunity to the refund-claimant for adducing evidence and other materials in support of the claim for refund - The appellate authority is right in having found that rejection of refund claim of Rs. 40,80,901/- without grant of such opportunity to the claimant violated the principles of natural justice - These circumstances have been found to be enough for remand of the dispute to the original authority - Appeal allowed by way of remand (Para 3).


M/s Karnataka Agro Chemicals Vs CCE (Dated: September 20, 2012)

Central Excise - Whether the security offered by the appellant in the form of deposit of title deeds pertaining to the landed property would subserve the revenue's interest in terms of Section 35F of the CE Act, 1944 - Held: The Consultant for the Revenue is right when he says that the security in any form whatsoever offered by the appellant should be one enforceable against the appellant in the event of their losing their appeal - The deponent, who has verified and filed the appeal, should categorically undertake that he has no objection to the respondent enforcing this security against the appellant in the event of the latter losing the case - Directed the appellants to file such undertaking in unequivocal terms within a reasonable time (Para 4).


Shilpa Steel & Power Ltd Vs CCE (Dated: October 15, 2012)

CE - Valuation - When applicant is paying duty in terms of rule 10A of the Valuation Rules, 2000, it cannot be said that the value of the scrap retained by them is an additional consideration – Strong prima facie case in favour – pre -deposit waived and Stay granted: CESTAT [para 5]



CCE Vs M/s Goyal Proteins Ltd (Dated: September 21, 2012)

Notfn. 115/75-CE - appellants are manufacturing Refined Vegetable Oil through solvent extraction method – appellant is also procuring crude vegetable oil from other units and removing it after refining the same - during the process of refining 'Acid Oil' a by-product is obtained which is cleared under exemption notf. 115/75-CE – Revenue seeks to deny the exemption on the ground and recover duty @16% adv. on the ground that Acid Oil manufactured in the factories of solvent extraction industries are only exempted whereas in the present case assessee is merely refining crude vegetable oil procured from other units and they are neither crushing oil seeds nor undertaking any solvent extraction process: Held - Notification No. 115/75-CE grants exemption to goods manufactured in the factories covered by any of the specified industries in the schedule and Oil Mill and Solvent extraction industry is one of the specified industries - Inasmuch the respondent factory is admittedly an oil mill and solvent extraction industry and the revenue has not contested the said issue, benefit of exemption notification available in respect of by-product Acid oil: CESTAT [paras 5 & 9]


CCE Vs M/s Lovely Offset Printers Pvt Ltd (Dated: August 2, 2012)

Central Excise – Classification – Belt Sleeves and Airline Gift Sleeves manufactured from paper – It is fairly clear that the product is used as wrapper and such product is classifiable under Heading 4819.19 as claimed by the Revenue since such sleeves are just not for indicating the nature, identity, manufacturer, price etc of the product but are used as wrappers.

Penalty under Section 11 AC - The assessee was aware of the two classifications and has attempted to evade the excise duty on wrapper by classifying it as labels - Penalty is imposable under section 11AC of the Act – Respondent is given an option to pay duty demand payable along with interest and 25% of the duty demanded as penalty within 30 days of receipt of the order – Cum duty benefit is admissible.

Penalty on the Director of the company - Since this a dispute about classification of the goods and no special role played by the Director is brought on record to impose penalty on him, penalty imposed on the Director of the Respondent Company is waived.


M/s Hetero Drugs Ltd Vs CCE (Dated: August 28, 2012)

Central Excise - Stay / Pre -deposit of Duty - CENVAT - Remission of duty on inputs contained in ‘Semi finished goods' and ‘intermediate goods' destroyed in fire accident - Neither the SCN nor the order of the Commissioner indicate the nature of semi finished goods or intermediate goods to determine as to whether they are liable to excise duty - The question of remission of duty will arise only when the duty liability is established - The question of reversal of the credit attributable to inputs contained in the goods on which remission granted will arise only when there is need for grant of remission - In the peculiar facts and circumstances of the goods, where even the identity of the semi finished/intermediate goods are not available, the question of granting remission and consequently seeking reversal of the credit attributable to the inputs may not arise (Para 6).


ACC Ltd Vs CCE & ST (Dated: November 29, 2012)

CENVAT Credit on Input Services (GTA) availed after two years – Adjudicating authority applying rules in respect of “Inputs” whereas the dispute is in respect of “Input service” – there is no bar of taking credit subsequent to the payment for consideration of input service – prima facie strong case in favour – Pre-deposit waived and Stay granted: CESTAT [para 5]



M/s Gujarat State Fertilizers & Chemicals Ltd Vs CCE (Dated: March 15, 2012)

Central Excise – CENVAT – Input Services – Credit of service tax paid on Manpower recruitment and supply agency for supply of Nursing Staff who are stationed in factory premises – The plea of the appellants is that wh erever there is factory having the strength of more than 500 workers, it is ma ndatory to maintain ambulance and nursing staff in the factory premises all the time in terms of Section 45 (4) and 92 of Factories Act, 1948 – Held that : CENVAT credit of the services rendered by the nursing staff in the factory is undisputable and CENVAT credit thereof cannot be denied - But, at the same time the services of nursing staff at the appellant's colony and residences is contentious one which needs to be gone into detail, which can be done at the time of final disposal of appeal – Ordered for pre -deposit of Rs. 35,000/- (Para 3 & 4).


M/s Macleods Pharmaceuticals Ltd Vs CCE (Dated: October 10, 2012)

CE - Valuation - appellants clearing goods at a higher price than that declared in the invoice from the depot to their distributors - in respect of the period March, 1995 to June, 1997, SCN demanding duty on goods cleared without payment of duty was issued to the appellant and which matter was settled under the KVS Scheme - present SCN demanding duty for the period September 1996 to August 1997 on the ground of undervaluation and alleging suppression - since in the earlier proceedings there was no allegation of undervaluation and that matter having been settled under KVSS, demand up to June, 1997 in present proceedings is not sustainable - appellant also paying duty after June 1997 at the price at which goods cleared from depot and that amount has been appropriated and appellant not contesting the same - in view of the fact that valuation of goods was within the knowledge of revenue, allegation of suppression not sustainable - not a case for imposition of penalty - Appeal disposed of: CESTAT [paras 4 & 5]


M/s Mohan Bottling Co (P) Ltd Vs CCE (Dated: December 11, 2012)

S.4 of CEA, 1944 - even if the amount charged by the appellant towards freight at equalised rate is more than the amount of expenses incurred on freight the differential freight would not be includible in the assessable value so long as it is not the case of the department that the sale price for delivery of the goods at the factory gate to independent buyers is not the correct price or that the same had been artificially depressed and the freight expenses has been artificially inflated – Appeal allowed: CESTAT [para 8]

"Additional consideration" which is includible in the assessable value of the goods is the consideration for the goods being sold, which is in addition to the declared sale price - Any amount being received by a manufacturer from the buyer of the goods cannot be termed as "additional consideration" and added to the value of the goods - it must be shown that it is for sale of the goods and not for some other transaction - burden is on the Department to prove that the price at the place of removal had been depressed and the balance price is flowing as additional consideration by inflating transportation/insurance charges – Appeal allowed: CESTAT [para 8]


M/s Que Pharma Pvt Ltd Vs CCE (Dated: September 29, 2012)

SSI exemption – Brand name - Partnership firm M/s Que Pharma agreed that from 2.9.1996, they have no right, title and interest in the trade mark "Que" and other brand names, which have been assigned to said M/s Que Pharma Private Limited - It is not the Revenue's case that both the companies are manufacturing the same product which has been assigned to the current appellant – appellant cannot be denied the benefit of SSI exemption notification – Order set aside & Appeal allowed with consequential relief: CESTAT [paras 10, 12 & 13]


Haldyn Glass Ltd Vs CCE (Dated: January 22, 2013)

Appeal file weeded out by CESTAT Registry but appeal pending – matter to be placed before Vice President/HOD for approval to reconstruct the appeal file - Recovery by Revenue stayed: CESTAT [para 2]


M/s Madura Coats Pvt Ltd Vs CCE (Dated: December 12, 2012)

Central Excise - Stay - Extension of - Pendency of the appeal is not due to any fault of the appellant - Stay extended till disposal of the appeals.


M/s Menon Piston Ltd Vs CCE (Dated: June 15, 2012)

CENVAT Credit - Rule 2(l) of CCR, 2004 - since goods are delivered directly to customers & sale price is on FOR basis, GTA Service employed up to the door of buyer is available as CENVAT Credit - so also, when goods are cleared from depot, the same becomes the place of removal and appellant is entitled for Input Service credit on GTA service up to depot - Appeal allowed: CESTAT [paras 6, 6.1 & 7]



M/S GlaxoSmithKline Consumer Healthcare Ltd Vs CCE & C (Dated: September 4, 2012)

Central Excise - CENVAT - Utilisation of common input services for manufacture of Dutiable and Exempted goods and non-maintenance of separate inventory / records - The Appellant's request for grant of benefit under Rule 6 (7) of the CENVAT C redit Rules, 2004 was not acceded - Ordered to consider the appellant's applications dated 9.7.2010 for grant of benefit under Rule 6 (7) ibid, on merits (Para 4).


Bhagyanagar Gas Ltd Vs CC, CE & ST (Dated: September 4, 2012)

Central Excise - Stay / Pre -deposit of Duty - Demand - Valuation - No doubt the margin available to HPCL has been referred to as 'commission' in the agreement - However, the records reveal that it is clearly a case of sale by the appellant to HPCL,

who in turn sells the products to various customers - Applicable Sales Tax / VAT has been paid on such sales - To include the so-called ‘commission' in the assessable value would lead to treating HPCL as related person which is beyond the scope of show-cause notice (Para 5).


CCE Vs M/s Bangalore Electrical Works (Dated: August 22, 2012)

Central Excise - Non-application of mind - The impugned order clearly discloses non-application of mind to the relevant fa cts - Apparently, a view was taken in favour of the assessee and against the Revenue in the light of a decision of the Tribunal without examining its applicability to the facts of the case on hand - There is nothing in the impugned order indicating any opportunity of being heard having been given to the Department before deciding against them on the crucial issue of excisability of the goods in question - Appeal allowed by way of remand (Para 2).


Supermax Personal Care P Ltd Vs CCE (Dated: January 4, 2013)

Rule 6A of CESTAT (Procedure) Rules, 1982 - Only one appeal is required to be filed against one order even though the said order may deal with more than one notice – SCN issued by Registry does not survive and is discharged: CESTAT [para 3]


Mather & Platt Pumps Ltd Vs CCE (Dated: October 9, 2012)

CE - Clearance of pressure boosting system consisting of more than one pump and control panel, cable, switches etc. by classifying the same under SH 8413 70 10 & claiming benefit of exemption under notfn. 10/2006-CE as applicable to “Power driven pumps” - since classification of the goods is not being disputed by Revenue, prima facie benefit cannot be denied - strong case for waiver of pre -deposit of dues - Stay petition allowed: CESTAT [para 8]



CCE Vs M/s Kopargaon Ssk Ltd (Dated: September 13, 2012)

Respondent captively consuming molasses by paying duty @Rs.850/- PMT - Revenue issuing SCNs on the ground that competitors are clearing molasses of ‘A' grade at

higher price - Commr(A) dropping demand on the ground that there is no evidence on record to take such a view - in appeal, Revenue submitting that at least the respondent is liable to pay duty at the lowest price on which the same grade of molasses has been cleared by competitor - it is proper that for captively consumed goods the value of comparable goods is to be taken into consideration, however, there is no evidence shown by Revenue that the molasses captively consumed are of ‘A' grade - the chart produced by Revenue shows the lowest price of the goods adopted by the competitor as @600/- PMT whereas respondent paying duty @850/- PMT - in view of the same, Revenue appeal is dismissed: CESTAT [para 10]


M/s Hematic Motors Ltd Vs CCE (Dated: October 17, 2012)

Common Cenvatted inputs - Appellants manufacturing electrical laminations and captively consuming the same in the manufacture of stators and rotors which are cleared on payment of duty - certain quantity of stators and rotors were cleared against CT-2 certificate without payment of duty - revenue demanding duty on electrical laminations on the ground that benefit of captive consumption notification 67/95-CE not available - appellant submitting that at the time of clearance of stators and rotors they re versed the credit equal to 8% of the price and complied with conditions of rule 57AD of CER, 1944 - in this view of the matter demand in respect of intermediate product i.e electrical lamination is not sustainable - Appeal allowed: CESTAT [para 7]


CCE Vs General Motors India Pvt Ltd (Dated: Novrmber 5, 2012)

CE - Valuation - Charges in respect of pre -delivery inspection and free after sale service whether to be included in transaction value of motor vehicles manufactured and cleared by appellant - in a similar case of Skoda Auto India Pvt. Ltd. (2012-TIOL-844-CESTAT-MUM), CESTAT had ordered for a pre -deposit of 50% of duty and which order was set aside by the Bombay High Court and the Bench was directed to hear the appeal on merits without insisting on pre -deposit - in view of the said order of the HC, pre -deposit waived and recovery stayed: CESTAT [paras 4 & 5]


M/s Olefine Organics (India) Pvt Ltd Vs CCE (Dated: October 16, 2012)

CE – Appellants receiving ‘intermediate products' from local suppliers on payment of duty and availing CENVAT credit – Revenue alleging that the supplier manufacturers were required to supply the goods without payment of duty as per the conditions of Notification No.44/2001-CE(NT) but colluded with appellant and transferred accumulated CENVAT credit – notification is conditional and issued under rule 19 of CER, 2001 and not section 5 of the CEA, 1944 – as supplier manufacturer has not followed the procedure, they are prima facie not entitled for benefit of the notification – moreover, although there is an allegation of collusion, the manufacturer-suppliers have not been made party to the proceedings – allegation not sustainable – since

appellant has only taken credit of duty paid by suppliers, prima facie they have strong case for waiver of pre -deposit of dues – Pre -deposit waived and Stay granted: CESTAT [paras 5, 6 & 7]



M/s Furnace & Foundry Equipment Co Vs CCE (Dated: Novermber 7, 2012)

Benefit of Exemption Notfn. 6/2002-CE is not available to EOT cranes as they are not specified goods mentioned at sr. no. 237, List 9 of the notfn - duty correctly demanded - however, before clearance appellant had given prior intimation to Revenue authorities and also produced certificate issued by the jurisdictional CE authority of recipient unit and followed Chapter X procedure - clearance also mentioned in ER-1 - since all facts were disclosed to the Revenue, appellant not liable for imposition of any penalty u/r 25 of CER - Penalty set aside but demand upheld: CESTAT [para 8]


CCE Vs Farmtek Agro Exports Ltd (Dated: September 5, 2012)

Cut flowers cleared to DTA by 100% EOU are liable to duty - issue is now settled by Tribunal in case of L.R. Brothers, Indo Flora Ltd. Vs. Commissioner of Customs, Meerut (2008-TIOL-1649-CESTAT-DEL) - order of lower appellate authority set aside and Revenue appeals allowed: CESTAT [paras 5 & 6]


Arviva Industries (India) Ltd Vs CCE (Dated: November 29, 2012)

Applicants engaged in manufacture of textile and textile articles and availing CENVAT credit on inputs - final products exempted from payment of additional excise duty - accumulated credit of AED used towards payment of basic excise duty - applicant seeking permission and granted such cross utilization but this order of Assistant Commissioner set aside by Commissioner(A) in appeal filed by Revenue - challenge against this order pending with Tribunal - there is no provision under the CCR for utilization of credit of AED towards payment of BED and the only provision is for refund or rebate of accumulated credit - prima facie not a case for total waiver of duty - Pre -deposit ordered for obtaining Stay: CESTAT [para 5]


Johnson Matthey Chemicals India Pvt Ltd Vs CCE (Dated: November 20, 2012)

Rule 4(1) of CCR, 2004 - There is no time limit prescribed in the CENVAT Credit Rules for taking credit - If a manufacturer does not take credit as soon as the inputs are received in the factory, the word “immediately” in rule 4(1) of CCR, 2004 does not mean nor is it intended to mean that the benefit would be denied - If a manufacturer has not taken credit immediately, it is affecting the manufacture r, not the Revenue - Order set aside & appeal disposed of: CESTAT [paras 8 & 9]



M/s Janata Rubber & Engg Works Vs CCE (Dated: October 4, 2012)

Whether the benefit of notification 162/86-CE is a vailable to bodies built on chassis which are classifiable under heading 87.07 of CETA, 1985 - matter already settled in case of Kailash Auto Builders - order set aside and appeal allowed - appellant entitled for consequential relief in accordance with law: CESTAT [paras 5 & 6]


Hindustan Coca-Cola Beverages Pvt Ltd Vs CCE (Dated: September 11, 2012)

CE - Aerated waters cleared on payment of duty by valuing in terms of section 4A of the CEA, 1944 - Revenue wants to include rental charges in respect of crate to MRP - issue already settled in applicant's favour in their own case -pre-deposit wa ived and stay granted: CESTAT [para 3]

Revenue submitting that appeal against this order cited as 2006 (199) ELT 718 (Tri-Del) (2006-TIOL-534-CESTAT -DEL) is pending before Supreme Court - both sides are at liberty to mention after decision of apex court: CESTAT


Anutone Acoustics Ltd Vs CCE (Dated: November 5, 2012)

CE - It is the allegation of the Revenue that the appellant had wrongly availed CENVAT credit of Rs.1.14 Crores as the activity undertaken does not amount to manufacture - applicant submitting that they have cleared the goods by utilizing credit as well as paying amount of more than Rs.16 lakhs from PLA - also similar activity undertaken by them at other places outside Mumbai, no objection has been raised - since applicant has paid duty more than the credit now sought to be denied and this duty has been accepted by Revenue, prima facie strong case in their favour - Pre-deposit waived and stay granted: CESTAT [para 5]


Mahindra Hinoday Industries Ltd Vs CCE (Dated: September 29, 2012)

CE - Officers of the department have no respect for the orders passed by the Tribunal and they are following their own law which results in unnecessary litigation before the CESTAT - adjudicating authority in over-enthusiasm re-adjudicating show cause notices although there was no such direction given by Commissioner(A) - Order set aside and appeal allowed with consequential relief: CESTAT [paras 6, 7 & 8]



M/s Ambuja Cements Ltd Vs CCE & ST (Dated: December 11, 2012)

Applicants engaged in manufacture of cement and availing CENVAT credit - applicants cleared waste and scrap of capital goods without payment of duty - in view of rule 3(5A) of CCR, 2004 applicant should have paid duty on the transaction value of such waste and scrap - not a fit case for total waiver of duty - Pre -deposit ordered for obtaining stay: CESTAT [para 5]


M/s Kanpur Kashmir Roadways Vs CCE (Dated: June 28, 2012)

Central Excise - CENVAT - Receipt of invoice without receipt of goods - Denial of input credit - Stay / Dispensation of pre-deposit - Though the show cause notice issued to the manufa cturer of copper ingots is still pending adjudication, probability is more that the allegation against them for of issuing bogus invoices is correct. Prima facie, for deciding the question of dispensation from the requirement of pre-deposit under Section 35F, the question which has to be decided is as to whether the evidence on record indicates the likelihood of the allegations of the duty evasion being upheld and if there is slightest risk to the Revenue, the dispensation from the provisions of Section 35F should not be given and if it has to be given the stiff conditions have to be imposed to safeguard the interests of the Revenue - Partial pre-deposit ordered. (Para 12)

Factors for grant of waiver of pre-deposit / Stay - The balance of convenience would be in favour of granting waiver and stay if the case against the assessee has no legs to stand or the issue involved stands decided by the judgments of the Apex Court, High Courts, or Tribunal in his favour, as in such a situation, compliance with the requirement of pre-deposit before hearing of appeal would certainly cause undue hardship and irreparable loss. A person who is, prima facie, found to have evaded taxes by resorting to fraud, wilful misstatement, suppression or contravention of the law with intent to evade the tax would not deserve the dispensation from the compliance with the provisions of Section 129E of Customs Act, 1962 or Section 35F of the Central Excise Act, 1944. Also, when the Tribunal decides to grant full or partial

stay, it has to impose such condition as are necessary to safeguard the interests of revenue and this is an imperative requirement. (Para 9 & 9.1)

Retraction of statement - Effect of - Retraction has no meaning, when no evidence is produced that the statement had been recorded under duress, coercion or inducement. It is well settled that a statement recorded under Section 14 of the Central Excise Act, 1944 by Gazetted Officer is admissible as evidence unless there is evidence indicating that the same is hit by the provisions of Section 24 of Evidence Act. (Para 11.2)



CCE Vs M/s Horizon Flora India Ltd (Dated: October 4, 2012)

Cut flowers cleared to DTA by 100% EOU are liable to duty - issue is now settled by Tribunal in case of L.R. Brothers, Indo Flora Ltd. Vs. Commissioner of Customs, Meerut (2008-TIOL-1649-CESTAT-DEL) - order of lower appellate authority set aside and Revenue appeals allowed: CESTAT [para 8]


M/s Abhideep Chemicals Pvt Ltd Vs CCE (Dated: November 7, 2012)

Revenue of the view that job worker of applicant has wrongly paid Service Tax and hence applicant is not entitled for credit of the same - job worker not a party to the present proceedings - since the ST paid by the job worker has been accepted by Revenue prima facie case in favour of the applicant - assessment cannot be re -opened at the recipient end - pre-deposit waived and stay granted: CESTAT [para 2]


CCE Vs Ahan Apparels Pvt Ltd (Dated: September 5, 2012)

Sections 11A & 33 of CEA, 1944 - Administrative directions of the CBEC allocating different monetary limits for adjudication of cases by Central Excise officers cannot cut down the jurisdiction vested in them by statute and may be followed by them at best as a matter of propriety – Setting aside by Commissioner(A) of order of AC, C.Ex, though on an appeal filed by the Revenue, adjudicating a case involving C.E duty in excess of Rs.5 lakhs is unsustainable and bad in law – order of adjudicating authority restored: CESTAT [paras 5.1, 5.2 & 5.3] ]



Shri Hiren K Kapadia Vs CCE (Dated: September 26, 2012)

Fraudulent rebate of Central Excise duty - Recovery of duty cannot be held jointly - individual duty liability is to be segregated separately against each individual - in view of Gujarat High Court decision dated 13/04/2011 in Tax Appeal no. 1920 of 2010 holding as above, pre-deposit of demands waived and matter remanded back to the adjudicating authority for determination of individual demand and thereafter penalty - no finding on merits is being given - Stay applications and appeals disposed: CESTAT [paras 4, 5 & 6]


Schrader Duncan Ltd Vs CCE (Dated: December 19, 2012)

Garden maintenance service, rent paid for office in Delhi and Insurance premium paid on employees medical claims are having nexus with Business activity of appellant and hence are to be considered Input Services under rule 2(l) of CCR, 2004 - issue no longer res integra - Order set aside and Appeals allowed with consequential relief: CESTAT [para 3]


S C Emro (Agro) Pvt Ltd Vs CCE (Dated: October 9, 2012)

Rule 2(l) of CCR, 2004 - CENVAT credit availed on services used for civil construction work of pollution control equipment - revenue alleging that pollution treatment plant is not a part of manufacture of final product - services in respect of business activity is an input service - applicant has strong prima facie case in favour - pre-deposit waived and stay granted: CESTAT [para 5]


M/s Hindustan Insecticides Ltd Vs CCE & ST (Dated: July 20, 2012)

CE - Interest under Section 11AB of CEA, 1944 is payable on the duty paid under Section 11A(2B) under supplementary invoice on the price differential on account of retrospective price escalation received by the assessees - Just a claim that the price differential received by the assessees also includes element of interest is without merit in the absence of any cogent evidence - interest on a duty liability is by automatic operation of s.11AB and for recovery no SCN is required hence limitation period is inapplicable - since interest is a “sum due to the Government”, which is recoverable u/s 11 of CEA, 1944 it has no limitation period - SCN issued u/s 11A has to be treated as communication for recovery of interest u/s 11 - Revenue appeals

allowed and assessee appeals dismissed: CESTAT [PARAS 10.1, 11.1, 11.2, 12. 14.3, 15, 18.1, 18.2 & 19]



M/s Skan Research (P) Ltd Vs CCE (Dated: July 25, 2012)

Central Excise - Valuation - Physician samples cleared free of cost are to be assessed based on MRP value less abatement.

Physician samples manufactured on job work and cleared to principal manufacturer are to be assessed based on the transaction value.

Penalty - No penalty is warranted as the issue involved is interpretation.


M/s Sree Rengaraaj Ispat Pvt Ltd Vs CCE (Dated: August 2, 2012)

Centra l Excise - Stay/Dispensation of pre-deposit - Demand of 10%/5% under Rule 6(3)(i) on Steam cleared without payment of duty under Notification No 6/2002 CE and denial of CENVAT Credit on Waste Heat Recovery Boiler - During the process of manufacturing of 'sponge iron', flue gas is generated and for cooling down the said gas, the Water Heat Recovery Boiler' is installed and it is necessary for manufacturing of ' sponge iron' and is a pollution control device, which is covered by Rule 2(a)(A)(ii) of CENVAT Cre dit Rules, 2004. Therefore, prima facie , CENVAT Credit is admissible and demand under Rule 6(3)(i) is also prima facise not sustainable - 100% wavier granted.


M/s Sri Vasavi Pesticides Pvt Ltd Vs CCE(Dated: August 30, 2012)

Central Excise - Valuation - Goods sold through fictitious firms acting as distributors of the appellant manufacturer - Contention that the firms are registered with sales tax authorities and are paying sales tax - The sales tax rate on the product was 3.45%, much lower than excise duty rate of 10% - The parties concerned stand to gain by paying 3.45% sales tax rather than 10% excise duty - So the explanation that they were paying sales tax on both sales is hardly convincing as a reason to adjudge excise duty has been correctly paid - Liability to excise duty cannot be discharged by paying sales tax at a lower rate - There is merit in the case made out by Revenue in the case of goods sold through distributors - Demand upheld and cum-duty benefit allowed - Penalty under Section 11 AC is reduced to 25% if paid within 30 days of communicating the correct duty liability.


Techno Prints India Pvt Ltd Vs CCE (Dated: November 29, 2012)

CE - Processed Textile Fabrics - although the HASITPACD Rules, 1998 have been held to be ultra vires of section 3A of the Act, yet the manufacturer is liable to pay duty u/s 3 of the CEA, 1944 in respect of the dutiable goods cleared without payment of duty - pre -deposit ordered: CEST AT [para 5]



M/s Oswal F M Hammerle Textiles Ltd Vs CCE (Dated: July 6, 2012)

Stay petition not signed by the appellant and in appeal papers though verification report was signed but name of the signing officer was not mentioned - such defects are curable irregularities and the Commissioner(A) ought to have returned the papers to the appellant for rectification instead of dismissing their appeal - Matter remanded and Commissioner(A) directed to allow rectification of defects and deciding stay petition and appeal on merits: CESTAT [para 4]


Neelikon Food Dyes & Chemicals Ltd Vs CCE (Dated: August 13, 2012)

CENVAT credit on Port Service, storage and warehousing service, cargo handling service, CHA service, export freight charges and outward courier charges denied on ground that these services have been rendered after the ‘place of removal' - appellant submitting that since the goods have been exported all expenses have been added in the FOB value of the goods - in view of Gujarat HC decision in Mundra Port & SEZ Ltd. CENVAT credit cannot be denied - Pre -deposit waived and Stay granted: CESTAT [para 4]


Murli Industries Ltd Vs CCE (Dated: September 4, 2012)

Notfn. 4/2006-CE is a conditional notification - it does not exempt goods absolutely - in this factual scenario, contention of Revenue that applicant has paid duty on own volition by not opting for exemption notification 4/2006-CE and, therefore, seeking reversal of CENVAT credit and recovery of excise duty collected from customers u/s 11D is prima facie not legal - pre -deposit waived and recovery stayed: CESTAT [para 3]


Vee Connect Systems Vs CCE (Dated: September 12, 2012)

Central Excise - Default in payment of duty - Rule 8(3A) of the Central Excise Rules - Penalty - Penalty under Rule 25 is waived, but penalty under Rule 27 is confirmed.


Monarch Catalyst Pvt Ltd Vs CCE (Dated: October 5, 2012)

Rule 6 of CCR, 2004 - Appellant are manufacturers of excisable goods as well as undertaking job work – Cenvatted fuel consumed in the manufacture of dutiable goods and job worked goods – revenue alleging that since no separate records maintained as envisaged in rule 6(2) of CCR, 2004 credit not admissible – understanding of lower authorities that job work goods are exempted is not sustainable as they have misinterpreted the law – appellant entitled for CENVAT credit – Appeal allowed with consequential relief: CESTAT [paras 4 & 5]


M/s Mahindra & Mahindra Ltd Vs CCE & C (Dated: August 30, 2012)

CE - S. 4 Valuation - Appellant clearing base vehicle on payment of appropriate duty to the job worker where the process of bullet proofing was undertaken - from there, the bullet proof jeep was cleared to the J&K police department - Revenue is demanding duty after adding the bullet-proofing charges to the assessable value of the jeep on the ground that the order was received for Bullet Proof jeep and which the appellant have supplied - Judgement of SC in Siddharth Tubes Ltd. does not enable the department to charge duty on value addition outside the factory of clearance on account of processes not amounting to manufacture - in appellant's own case, the Revenue appeal was dismissed earlier - no reason to take a different view - Order set aside and appeal allowed: CESTAT [paras 5, 6 & 8]


CCE Vs M/s Mahindra & Mahindra Ltd (Dated: August 17, 2012)

Refund of duty paid on motor vehicles registered as taxi - notfn. 3/2001-CE & 6/2002-CE - Time limit prescribed under s. 11B of the CEA, 1944 is applicable for the purpose of filing refund claim - Revenue appeal rejected: CESTAT [paras 4 & 5]


M/s Lime Chemicals Ltd Vs CCE (Dated: November 2, 2012)

CENVAT - Rule 16 of CER, 2002 - Applicant receiving rejected finished goods & taking CENVAT credit of duty paid on the same on the basis of invoices which were not in their name but issued by their Paonta Saheb unit or on invoice s addressed to their Paonta Saheb unit - Credit is admissible to any unit when the invoices pertaining to those inputs are in the name of receiving factory - prima facie the same thing would apply to rejected goods - applicant does not have a prima facie case in their favour - Pre -deposit ordered: CESTAT [para 5]


M/s HYVA (India) Pvt Ltd Vs CCE (Dated: November 30, 2012)

CE - Motor vehicle body built on chassis supplied by Tata Motors - Valuation should be under Rule 10A of the Valuation Rules, 2000 and not Rule 6 - Sales Tax amount paid needs to be deducted from value - Penalty not imposable as dispute relates to valuation of goods - Appeals disposed of: CESTAT [paras 18 & 19]



M/s K Flex India Pvt Ltd Vs CCE (Dated: July 4, 2012)

Rule 6 of CCR, 2004 - Appellants clearing final products on payment of duty and also to SEZ - no separate records maintained in terms of rule 6(2) of CCR, 2004 - Demand issued for 10% of the price of the exempted goods cleared to SEZ - clearance to SEZ Developers from DTA are to be treated as exports in view of Tribunal decision in Sujana Metal Products (2011-TIOL-1173-CESTAT -BANG) and no demand can arise - strong prima facie case in favour - Pre-deposit waived and Stay granted: CESTAT [para 3]


Foam Techniques Mfg (I) Pvt Ltd Vs CCE (Dated: September 10, 2012)

CENVAT credit denied on the ground that the activity of making foam sheet out of foam block does not amount to manufacture u/s 2(f) of the CEA, 1944 – applicant has paid duty which is more than the credit now being denied – in view of Gujarat HC decision in Creative Enterprises (2008-TIOL-784-HC-AHM-CX) where it is held that if the duty paid has been accepted by the Revenue credit cannot be denied, pre -deposit waived and Stay granted: CESTAT [para 5]


M/s M P Biscuits Pvt Ltd Vs CCE (Dated: April 17, 2012)

Central Excise - CENVAT - Input Service - Outward transportation of goods - Outward transportation of the manufactured product up to the place of removal falls within the definition of input service. As per the job work contract the assessee/ job-worker is required to process and manufacture biscuit, carry out inspection, packing and delivery to various depot of the principle located all over the co untry. Admittedly, the job-worker has transported the goods to the depot/premises of the principal manufacturer and paid transportation charges including the service tax. As per Rule 3 of Cenvat Credit Rules the job-worker has rightly availed cenvat credit. (Para 11)


M/s Golden Tobacco Ltd Vs CCE (Dated: October 5, 2012)

In CENVAT Credit Rules, 2004, it is nowhere prescribed that Input Service credit is available only when service is availed in the factory premises – Credit available on Insurance Service – Appeal allowed with consequential relief: CESTAT [para 3]


M/s Hero Motocorp Ltd Vs CCE (Dated: March 12, 2012)

Central Excise - Stay / Pre -deposit of Duty - Benefit of Exemption - Appellant engaged in manufacture of motorcycles availing excise duty exemption under area based exemption under Notification No. 50/03-CE without payment of NCCD and Education Cesses - Followed the decision of High Court in the case of Indo Farm Tractors & Motors Ltd. - (2007-TIOL-724-HC-HP-CX) - Even if there was an exemption from Excise duty in terms of area based Notification, Cess in terms of the Auto Mobile Rules, 1984, was still payable (Para 5).

Central Excise - CENVAT - The appellants' plea that the CENVAT credit of Basic Excise duty was available for utilization for payment of NCCD - Followed the Tribunal's decision in the case of Prag Bosimi Synthetics Ltd. (2007-TIOL-1227-CESTAT -KOL) - It stands held that the provisions of Rule 3 of Cenvat Credit Rules do not impose any restriction for utilization of CENVAT Credit of Basic Excise duty for payment of NCCD - The appellants are entitled to stay on the said ground (Para 7).


CCE Vs M/s Nabulae Health Care Ltd (Dated: July 20, 2012)

Central Excise - Physician samples cleared without payment of duty - Respondent's contention that they entertained a bona fide impression that duty need not be paid if cleared free is not acceptable because the legal position that liability to excise duty arises when any goods are cleared from a factory whether for consideration or for free is a long settled issue - Demand of duty and extended period upheld.

Physician Samples replaced free of cost on expiry without payment of duty - Demand of duty upheld for normal period - Extended period cannot be invoked as the belief of the Respondent was not a reckless belief.

Valuation of Physician Samples - Decision of the Commissioner (Appeal) that the value should be determined based on cost construction method is not correct and the value should be determined as decided by the Tribunal in the case of Blue Cross Laboratories Ltd under Rule 6(b)(i) of the Valuation Rules, 1975.

Lapsing of credit - Adjustment of duty liability from lapsed credit - Since the liability is for the period before the lapsing of credit though determined after the date of lapsing, it is only proper that a set off on account of such lapsed credit is given because of such liability was determined correctly during the relevant time the credit would have been available for discharging such liability - Revenue's objection has no merit.


Eu-Medicaments Vs CCE (Dated: September 27, 2012)

CE - SSI Exemption - clearance of goods in the brand name of another person - for a part of the demand period, there is no assignment deed and even for the later period, the assignment will take place only when the Trade Marks are registered - since the Trade Marks are yet to be registered the question of the appellant owning the brand name by virtue of assignment deed does not arise - Benefit not available - Appeal dismissed: CESTAT [paras 6 & 7]



Danmet Chemicals Pvt Ltd Vs CCE (Dated: August 28, 2012)

CENVAT credit on storage and warehousing charges paid at the depot - Appellant is selling goods from depot and depot is the place of removal as defined in s. 4(3)(c) of the CEA, 1944 - in such a circumstance, service tax paid on services received up to the place of removal is an eligible input service under rule 2(l) of the CCR, 2004 - ST paid on storage and warehousing charges incurred at the depot is an Input Service: CESTAT [para 6] Appellate authority's order allowing the credit has not been challenged by the department and has attained finality - hence question of reopening the matter at a later point of time for a different period is not sustainable in law - Order set aside and appeals allowed with consequentia l relief: CESTAT [para 6]


Dy Executive Engineer (Civil) Vs CCE (Dated: September 3, 2012)

Manufacture of PCC Poles - State Electricity Board is not a department of the Government, therefore, benefit of Notification 74/93-CE is not available to the goods manufactured by a factory belonging to the State Electricity Board – Matter settled by Larger Bench in the case of Assistant Engineer (Civil) Vs. Commissioner of Central Excise, Raipur – however, since prior to the LB decision there were divergent views on the issue, larger period of limitation is not invokable – demand for normal period is confirmed – since allegation of suppression is not sustainable, penalty u/s 11AC of CEA, 1944 is also not imposable – Revenue to re -quantify the demands – Appeals disposed of: CESTAT [paras 6 & 7]


CCE Vs M/s Bhim Polyfab Industries (Dated: October 19, 2012)

Central Excise - CENVAT - Goods supplied from EOU to DTA - Credit of Education Cess paid on aggregate of Customs Duties - Eligibility of - Assessee in DTA can avail credit of Education Cess on goods supplied by 100% EOU and Rule 3(7)(a) of Cenvat Credit Rules in not a bar on the eligibility of credit.


Drolia Electro Steel P Ltd Vs CCE (Dated: March 15, 2012)

Central Excise - Stay / Pre -deposit of Duty - CENVAT - Exempted and dutiable final products - Since for manufacture of sponge iron, iron ore lumps of a particular size are required, the lumps received are crushed in course of which iron ore fines also generated as waste, which is sold out by the appellant - The appella nt received the common services of GTA and C&F Agent Services for receiving iron ore and availed CENVAT Credit of Service Tax paid in respect of the same - Even if the department's plea that iron ore fines is an excisable goods fully exempted from duty and, hence, covered by the definition of "exempted goods" as given in Cenvat Credit Rules and on this basis the provisions of Rule 6(3) would be applicable is accepted, in view of the retrospective amendment of the provisions of Rule 6(3) a formula is prescribed in this sub-rule - According to the appellant, total Cenvat Credit in respect of common services is around Rs. 3 lakhs and the amount to be reversed cannot be more than Rs. 3 Lakhs - Ordered for pre-deposit of Rs. 3 lakhs - Rule 6(3) of the Cenvat Credit Rules, 2004 (Para 7).


CCE Vs M/s Hindustan Motors Ltd (Dated: August 30, 2012)

Central Excise - CENVAT Credit - Reversal of inputs removed as such - Payment of interest - Commissioner (Appeals) order setting aside demand of interest is not proper - Plea that the respondents are not liable to pay interest is not sustainable as they have not challenged the confirmation Revenue of demand of credit involved before proper forum by way of appeal - Respondents are liable to pay interest.


M/s Consolidated Coin Co Pvt Ltd Vs CCE (Dated: September 19, 2012)

Central Excise - 100% EOU - Payment of Education Cess - Classification of Blank Copper Coins - Extent of Entitlement to DTA C learances - Stay / Dispensation of pre-deposit - Whether education cess is to be levied once again on the aggregate of duties of customs, the issue stands referred to a Larger Bench. The assessee has an arguable case. Coin blanks which are used for manufacture of coins cannot be said to be articles of Copper or Copper Alloys as it has not attained the shape or character of an article. Prima facie, in terms of Chapter Note 1 (g) to Chapter 74, the Copper Alloys Coin Blanks would be correctly classifiable under Heading no.7409 and not as an articles of Copper alloys under Heading No.7419. Since the items exported by the assessee i.e., 'Copper Alloys Coin Blanks' and 'Copper Zinc Nickel Strips' are similar products, both falling Under Heading no.7409 and since their DTA clearances are within the overall entitlement of 50% of the FOB value of the exports, in accordance with the provisions of para 6.8 (a) of the Foreign Trade Policy, the DTA clearances of any one of these products can be made upto 90% of the FOB value of its export. Prima facie, case for total waiver of pre-deposit made out.


M/s Sigma Heavy Engg Industries Vs CCE (Dated: May 17, 2012)

CENVAT – Allegation of shortage of Inputs – SCN adopting a fallback approach, has serious inaccuracies even in totalling of the work sheets, entire calculation gives the impression of a very raw method being adopted by interpreting figures in the balance sheet and account books of appellants without taking the help of the appellants or an accounting professional, muddling through making even totalling mistakes on the way - this type of case made by Revenue deserves to be dropped without further examination - Since the case is made without the minimum diligence required and in a casual manner, sending such matter for de-novo consideration will be another round of harassment for the appellants and most likely another round for wasting the time of the Tribunal also in a further litigation in second round – Order set aside and appeal allowed: CESTAT [paras 14, 15, 16, 17, 18 & 19]



CCE Vs M/s Hitkari Fibres Ltd (Dated: June 28, 2012)

CE - Revenue submits that Tribunal had decided the issue on Rule 6(1) and 6(2) and had not taken into consideration Rule 6(3)(a)(vi) of CCR, 2002 – Tribunal cannot decide the incorrect application of law while deciding the issue in ROM application – Application rejected: CESTAT [paras 6 & 7]


Indian Dyestuff & Chemicals Mfg Co Vs CCE (Dated: September 4, 2012)

CHA services have been availed in respect of export of goods and as per the terms of contract of export, it is an FOB basis, therefore, the place of removal is not the factory but the port of export - CHA service is an Input Service entitled for CENVAT Credit: CESTAT [para 5.1]

Travel Agency Services have been utilized for booking of tickets for travel of employees of firm for the purpose of export promotion - since export promotion is directly linked to the business of manufacture it is an Input Service u/r 2(l) of CCR, 2004 - CENVAT admissible - Appeal allowed: CESTAT [para 5.1]


M/s Kim Chemicals Ltd Vs CCE (Dated: September 13, 2012)

CE - Appellant taking suo motu CENVAT credit on 28.02.2008 and informing department about the same – SCN issued on 17.06.2011 alleging that there is no provision for such credit and demanding reversal and recovery - demand confirmed along with equivalent penalty and order upheld by Commissioner(A) – since the appellant had informed the department but the notice was issued only after a lapse of about 3 ½ years, prima facie appellant has made out a strong case in favour on limitation – Pre-deposit waived and stay granted: CESTAT [para 5]


Krishna Kumar Jhunjhunwala Vs CCE (Dated: October 15, 2012)

First copy of Miscellaneous application seeking extension of Stay ordered by CESTAT signed in blue ink and other copies signed in black ink - cannot be called as “defect” - SCN issued by Registry set aside and extension of stay granted by holding that the applicant was in no way responsible for the pendency of the appeal: CESTAT [para 3]


M/s Mahindra & Mahindra Ltd Vs CCE (Dated: October 16, 2012)

CE – Classification – whether “Arjun-Ultra-1 CE” is a ‘Tractor' or a ‘Front End shovel Loader' – Revenue demanding duty in respect of all clearances by classifying the same under C.H 8429 whereas assessee classifying under Ch. 87 and claiming exemption – it is a matter of record that only 405 machines that were cleared were fitted with additional equipments such as dozer and loader at the place of the dealers – Prima facie case for total waiver – Stay petition allowed: CESTAT [paras 6 & 7]



M/s Genuis Electrical & Electronics Pvt Ltd Vs CCE (Dated: February 14, 2012)

CENVAT - Appellant taking credit on the basis of invoices issued by M/s Aggarwal Plastic (India) in respect of input “PVC compound” – investigation revealed that M/s Aggarwal Plastic (I) stopped manufacturing activities in the year 2002 and were issuing fake invoices so as facilitate the appellant to take MODVAT credit – appellant too used to show manufacture and clearance of the purported final product viz. PVC insulated wires, winding wire of copper by debiting the credit fraudulently availed for payment of duty without actually manufacturing them and without having any capacity to do so and enabling buyer to avail bogus credit – Credit taken of Rs.1.06 Crores is denied & equivalent penalty imposed - Inasmuch as the entire credit was reversed by making debit entry used for payment of duty on final products, any direction to deposit the credit against them would not be fair - Any demand for further recovery of inadmissible credit is not sustainable – however, since the modus operandi adopted for passing on modvat credit is a fraud played upon the revenue, part of penalty of Rs.30 lakhs ordered to be pre-deposited: CESTAT [para 6]

Since the recipient M/s Genius Electrical & Electronics (P) Ltd. of the invoices issued by the appellant showing purported manufacture and clearance of final products has taken inadmissible credit and the same has been reversed in the entirety, pre-deposit of penalty imposed is dispensed with and Stay petition is allowed: CESTAT [paras 9 & 11]

Member(T) not in agreement with the main observations of Member(J) but not wanting to cause further delay in pre-deposit of the amount as ordered by differing on the quantum of pre-deposit, the operative part of the order recorded by Member (J) in para 10 of the order is agreed with along with that recorded by Member(J) in the case of M/s Genius Electricals and Electronics Ltd. [paras 13 & 22]


M/s Dalmia Bharat Sugar & Industries Ltd Vs CCE (Dated: May 28, 2012)

Central Excise - Stay / Pre -deposit of Duty - CENVAT - Capital goods - MS angles, channels, sections, bars, joists, sheets - While the items, in question, i.e. MS angles, channels, sections, bars, joists, sheets etc. are, prima facie not covered by the definition of capital goods, under Rule 2 (a) of CCR, 2004, the definition of input, as given in Rule 2 (k), covers all goods except LDO, HSD Oil and motor spirit used "in or in relation to manufacture of final product whether directly or indirectly and whether contained in final product or not" - In any case, scope of the term - "used in or in relation to manufacture of goods, whether directly or indirectly" is much wider than

the scope of the term "used in the manufacture" - Prima facie view that the items used for repair and maintenance of the plant and machinery would be eligible for Cenvat credit (Para 7).


M/s Dabur India Ltd Vs CCE (Dated: March 2, 2012)

Central Excise - Valuation - Goods sold from Deports - The appellants claimed deductions from the invoice price on account of freight, local taxes, additional trade discounts etc on equalized basis - Revenue was of the view that such deductions claimed on equalized basis cannot be allowed - The adjudicating authority has no option to deny the deductions claimed on equalised basis, since the order of the Tribunal dated 15-06-09 and the order of the Allahabad High Court dated 05-04-2011 were not appealed against - What is now left to the adjudicating authority is to verify the correctness of the figures claimed by the appellants and to pass order on the issue (Para 9 & 10).


M/s S S Engineers Vs CCE(Dated: November 27, 2012)

CENVAT – Appellant manufacturing excisable goods as well as providing output service – Credit availed on Input services used for rendering output service is utilized for payment of excise duty while clearing manufactured excisable goods – once credit is held admissible it forms part of a common pool and a manufacturer can utilize the CENVAT credit available for payment of Service Tax on output services or for payment of Excise duty as per his convenience – on same issue Stay granted by co-ordinate Bench, hence pre-deposit waived and recovery stayed: CESTAT [paras 4 & 5]



CCE Vs M/s Silchar Technologies Ltd (Dated: May 16, 2012)

Central Excise – CENVAT – Credit on Capital Goods i.e., storage rack falling under Chapter 72/73 – Revenue filed appeal on the ground that plastic racks cannot be treated as capital goods – Followed the decision of Larger Bench in the case of Banco Products (India) Limited - ( 2009-TIOL-421-CESTAT-AHM-LB ) - CENVAT credit is available on plastic crates used as material handling equipment in factory premises as capital goods as also as input – No merit in Revenue Appeal (Para 2 & 3).



Jaguar International Ltd Vs CCE (Dated: September 10, 2012)

CENVAT - Revenue contention that applicant does not have any facility to manufacture excisable goods, hence cannot avail CENVAT – notfn 53/2003-Cus allows import of raw material by merchant exporter having supporting manufacturer – once duty on final product has been paid and accepted by Revenue, CENVAT credit cannot be denied – Pre-deposit waived & Stay granted: CESTAT [para 5]



M/s Bhilwara Processors Ltd Vs CCE (Dated: May 2, 2012)

Central Excise - Refund - Unjust Enrichment - Refund claim filed by the appellant (Job worker) on account of excess duty paid in terms of Rule 8 of Valuation Rules 2000 on 115% of cost of production for clearance of excisable goods to principal - The appellant produced evidence in the form of letters from their principal refusing to pay excess duty, accompanied by Chartered Accountant's certificate in support of their claim that the incidence of duty whose refund is claimed has been borne by them and that duty has not been re covered from their customer - This matter has to be remanded for denovo examination of the question of unjust enrichment (Para 9).


CCE Vs Toto Packaging Pvt Ltd (Dated: August 28, 2012)

CE - Assessable value - whether cost of labels supplied by the customers is to be included in the AV of the plastic containers manufactured by the Respondent - Supreme Court in case of Jauss Polymers - (2003-TIOL-83-SC-CX) has held against the Revenue - since there is no infirmity in the order of the lower appellate authority, Revenue appeal dismissed: CESTAT [para 3]


M/s Venkatachalapathy Rice & Sago Factory Vs CCE (Dated: July 27, 2012)

Central Excise - Excisability - Demand of duty on Wet Starch emerging in the course of manufacture of Sago, which is an exempted final product - The issue is no longer res integra and the appellants are not liable to pay duty on Wet Starch - Penalty imposed under Section 11AC on the appellants who paid the duty is not sustainable as the ingredients of Section 11 AC i.e., fraud, collusion, willful mis -statement, suppression of facts all contravention of the provisions of the Act and Rules thereunder with intent to evade duty are missing.


CCE Vs M/s Shree Renuka Sugars Ltd (Dated: August 6, 2012)

Central Excise – CENVAT – Issued SCN alleging that the respondents have not paid duty on the sacks as they have availed the benefit under Notification No.67/95 CE on the ground that they were captively consumed and not fulfilled the conditions under the Notification No.214/86-CE - Held that : It is not in dispute that the impugned inputs for making packing materials have been sent to the job worker under Rule 4(5) of the CCR - The goods manufactured by the job worker have been returned to the respondents without payment of duty - Apparently such clearances have been permitted at the hands of the job worker by allowing the benefit of Notification No.214/86 - It is not in dispute that the respondents have received the goods viz. sacks and utilized the same for packing their final product sugar on which duty has been paid - Merely because they have not paid the duty on the sacks which were manufactured in the factory of the job worker, there is no justification for denial of credit on the inputs which have gone into the packing materials - The order of the Commissioner (Appeals) is legal and proper (Para 6).



Chief Terminal Manager Indian Oil Corporation Ltd Vs CCE (Dated: July 17, 2012)

Central Excise - Valuation - Sale of petroleum products through Company Owned Company Operated (COCO) Outlets - Inclusion of transportation charges from terminal points to COCO Outlets - Oil companies were receiving Petroleum products from various refineries located at different places in India, under bond without payment of duty at their "terminal points" and storing without payment of duty - They were clearing the products on payment of duty from Terminal Points - There is no basis to consider the COCO outlets as the "place of removal" - It is not the case of the department that the petroleum products were received in COCO outlets without payment of duty and sold from the said COCO outlets only on payment of duty - There is no justification to treat the COCO outlets as the "place of removal" - Even otherwise, the basis on which the COCO outlets are treated as depots cannot be appreciated - In common parlance, a depot is meant to be a place facilitating whole sale trade whereas the COCO outlets are obviously retail outlets - Since in respect of transfers to COCO outlets, the price applicable to dealers at the “place of removal” has been adopted, the same is legal and proper (Para 6.2 & 6.3).


M/s D S Doors (I) Ltd Vs CCE (Dated: June 26, 2012)

Central Excise - Stay / Pre -deposit of Duty - SSI Exemption - The allegation against main appellant (DS Doors India Ltd.) and its MD is that a dummy company (DS Woodtech) has been floated for the purpose of tax evasion and if the clearances of

both the appellants are clubbed together they would not be eligible for SSI exemption - The evidences prima facie shows that both the units were being controlled by the MD of main appellant and were being run by the MD of main appellant as one unit and the same, therefore, have to be treated as the factories owned by the same person for the purpose of determining their eligibility for SSI exemption - From the appraised report of Income Tax Department, it is clear that during both the years, main appellant and Dummy unit had grossly under reported their product and sales - Ordered for pre -deposit of Rs.2,75,00,000/- (Para 5.1, 5.2, 5.3 & 6).


Astee Lifesciences Ltd Vs CCE (Dated: September 27, 2012)

Delay of 100 days in filing appeal attributed to negligence by Accounts Executive who subsequently resigned from service - no evidence produced on record to show what action has been taken against the employee for the negligence - Tribunal can condone delay in filing appeal on showing sufficient cause - negligence of employee cannot be considered as sufficient cause - no merit in application - Condonation of delay application dismissed: CEST AT [para 6]


CCE Vs Bhogwati SSK Ltd (Dated: September 17, 2012)

Respondent engaged in manufacture of sugar and ethyl alcohol - press mud and spent wash come into existence during manufacture as by-product and the same are mixed together to form bio-compost and cleared without payment of duty - no cause for reversal of Modvat credit in view of provisions of rule 57D of the CER - Revenue appeal dismissed: CESTAT [para 6]


CCE Vs Central Cables Ltd (Dated: June 22, 2012)

Rule 2(1) of CCR, 2004 - Selling agent paying Service Tax on commission received from appellant is an Input Service – appellant entitled to take CENVAT credit of service tax paid by them on services availed by them in the course of business of manufacturing – Order upheld and stay application filed by Revenue dismissed: CESTAT [para 4]


Twin Cities Steel Re-Rolling Mills Pvt Ltd Vs CCE (Dated: July 26, 2012)

Central Excise – CENVAT – Denial of CENVAT Credit on HR coils, HR plates, MS plates, channels, joists, angles, beams, etc - Commissioner (Appeal) rejected appeal for non-compliance of Pre -deposit ordered – There is no any strong prima facie case for the assessee against the direction issued by the lower appellate authority for pre-deposit - The structural items were claimed to have been used for fa bricating/manufacturing chimney, pollution control equipment, material handling equipment, etc. - Apparently, this claim was not substantiated before the lower appellate authority, nor has the appellant been able to substantiate this claim before the Tribunal – The submission of the appellant is that running through a financial crisis on account of the ongoing Telangana agitation, is required to be considered – Ordered for pre-deposit of Rs. 2,50,000/- (Para 3).



ACC Limited Vs CCE & ST (Dated: September 27, 2012)

CENVAT - Outward transportation of goods from factory or from depot to customers' premises is to be treated as an Input service during the period April, 2005 to March, 2007 in view of settled decision in ABB Ltd. (2011-TIOL-395-HC-KAR-ST) – Pre -deposit of CENVAT credit demand of Rs.5.11 Crores & interest & penalty waived and stay granted: CESTAT


Amit Spinning Industries Ltd Vs CCE (Dated: September 17, 2012)

Appellant engaged in manufacture of cotton yarn – Imported Paraffin wax used for smooth process of manufacture cannot be said to be a raw material for the manufacture of cotton yarn hence the benefit of notf. 8/97-CE cannot be denied – Demand not sustainable – Order set aside and appeal allowed: CESTAT [para 6]


CCE Vs M/s Abhishek Fashion Pvt Ltd (Dated: May 1, 2012)

Central Excise - Clandestine clearances - Payment of Penalty under Section 11 AC of the Central Excise Act, 1944 after one month - Benefit of reduced penalty @ 25% of duty - There was clearly one year of delay in payment of duty, interest and penalty - There is no provision in the law under Section 11AC to condone the delay in payment of duty, interest and penalty for whatever reason by any authority - Under these circumstances the order passed by the Commissioner (Appeals) cannot be sustained at all - Impugned order is set aside and appeal filed by the Revenue is allowed (Para 4).


M/s Concept Pharmaceuticals Ltd Vs CCE (Dated: October 25, 2012)

CE - S. 4A – P & P Medicines - there is no provision under Notf. 2/2005-CE(NT) that the abatement is to be taken from the retail sale price excluding duty – appellant working under self assessment procedure and it is their duty to compute the correct AV and pay correct CE duty – non-mentioning of correct AV in the letter addressed to the Asstt. Commr. is willful misstatement by appellants – appellants started payment of duty from February, 2007 by adopting the proper valuation after objection by department and which is even before issuance of SCN in March, 2008 – appellant did not show their good conduct by way of payment of duty in respect of the past period and now they cannot claim that SCN is hit by time limitation - Extended period rightly invoked – Order upheld and appeal rejected: CESTAT [paras 8, 10, 11, 12 & 13]



HPCL Vs CCE (Dated: November 19, 2012)

CE – Valuation – applicant clearing Superior Kerosene Oil to various marketing companies and paying CE duty on value lesser than that recovered by the oil marketing companies – on same issue matter is referred to the Larger Bench in the case of ONGC - (2010-TIOL-1419-CESTAT-MUM) – prima facie applicants have made out a strong case for waiver of pre -deposit: CESTAT [para 7]

Limitation – SC decision in Mazagon Docks Ltd. - (2005-TIOL-111-SC-CX) is in favour of Revenue whereas Tribunal decision was in favour of applicants – in view of this, prima facie the allegation of suppression with intent to evade payment of duty is not sustainable – pre-deposit waived: CESTAT [para 7]


M/s Inox India Ltd Vs CCE (Dated: March 20, 2012)

Central Excise – Stay / Pre -deposit of Duty – 100% EOU – Violation of the conditions of Notification No.23/2003-CE dated 31.3.2003 - Notification No. 23/2003-CE talks about clearances of the goods to the person who is holding and advance release order or advance licence in terms of para 4.1.1 of the export policy - It is undisputed in this case that the clearances affected by the appellant was to advance licence holder who has been producing the advance release orders to the appellant, who in turn produced the same to the jurisdictional authorities - Prima-facie the appellants have been following the provisions of Notification No. 23/2003-CE correctly for all the clearances made to advance licence holders - As regards the violation of the para 6.8 & 6.9 of the Foreign Trade Policy, it is a settled law that such violations, if any, can be only

adjudged by the DGFT authorities (Para 5).

Central Excise – Limitation - Violation of the conditions of Notification No.23/2003-CE dated 31.3.2003 - Appellants had cleared the goods under advance licence/advance release order during the period 2005 to 2008 while the show cause notice was issued on 18.3.10 which seems prima-facie to be time barred, in as much as the clearances were countersigned by the range superintendent in charge of the appellant's factory - Prima-facie, the appellant made out a case for the complete waiver of the pre-deposit (Para 5).


M/s Molex (India) Pvt Ltd Vs CCE (Dated: July 24, 2012)

Central Excise – Stay/ Pre-deposit of Duty – CENVAT – Appellant created a reserve on a monthly basis for slow moving inventory as well as for excess inventory - The quantity of inputs/value of the inputs relating to slow moving category moved into reserve may be ultimately written off or may be returned for use in the manufacture depending upon orders for goods using such items – Denied CENVAT Credit on Reserve inventory - Held that : The Commissioner acknowledged that substantial quantities which were moved into the reserve category for which provisions were made were dereserved in the subsequent months - prima facie , moving the goods in reserve category cannot treat the inputs and the value of inputs as written off in the books of accounts - The appellant made out a prima facie case for waiver of the balance of the dues (Para 5 & 6).


M/s Moontex Dyeing & Printing Works Vs CC & CE (Dated: May 30, 2012)

Central Excise - Stock Verification - Unaccounted goods - Recovery of Private Records - Co-relation of evidence - Admission of Clandestine Clearance by the Partner of the Firm - Retraction of Statement - Validity of - A affidavit sworn retracting the statement was submitted within six days of the original statement. The adjudicating authority has summarily dismissed the same as an afterthought. The lower authorities having not recorded any further statement of the assessee consequent to the retraction. Hence, the evidentiary value of the statement could be in doubt. There is contradiction between the quantity admitted to be clandestinely cleared and the quantity mentioned in the show cause notice. Statements of all the merchant manufacturers were not recorded whose names were appearing in Pakka challans indicating receipt of grey fabrics. No reasoning is given in the order-in-original for the same. All these inherent commission and omission has to be properly reasoned out by the adjudicating authority in his findings for confirmation of demand. Order is set aside and remanded back to the original authority to reason out all the inherent contradictions and pass order afresh after following the principles of natural justice.(Para 7 & 8)


M/s Bharat Petroleum Corporation Ltd Vs CCE (Dated: October 3, 2012)

Since the appeal of the PSU was dismissed as the CoD had declined permission to pursue the appeal before the CESTAT, it cannot be reopened in the light of the Apex Court decision in ECIL as held by the LB CESTAT in case of Burn Standard Co. - ROA application and early hearing application dismissed: CESTAT [paras 3, 4 & 5]



M/s Metal Weld Electrodes Vs CCE (Dated: July 19, 2012)

Central Excise - Stay/Dispensation of pre-deposit - Demand of Rs 53,19,377/- on clandestine clearances - Prima facie, considering the fact that the case is about clandestine clearances and the there will be liability if the formula of consumption of raw material adopted by the applicant is followed, pre-deposit of Rs 20 lakhs ordered.


M/s Tamilnadu Newsprint Paper Ltd Vs CCE (Dated: July 16, 2012)

Central Excise – Stay/Dispensation of pre -deposit – Demand of 8% to 10% on sludge arising during the manufacture of paper/paper board – Appellant has made out prima facie case for waiver of pre -deposit.


Cadbury India Limited Vs CCE (Dated : September 06, 2012)

CENVAT Credit taken on imported cocoa beans - Cocoa shells arising during manufacture cleared without payment of duty - invocation of rule 6(2) of CCR, 2004 for recovery of amount of 5% on the ground of availment of CENVAT credit on common inputs is prima facie improper as cocoa shells is a waste – pre-deposit waived and Sta y petition allowed: CESTAT [para 4].



M/s Hewlett Packard India Sales Pvt Ltd Vs CCE (Dated : July 26, 2012)

CE - Valuation - Stay / Pre -deposit of Duty - Trade Discount - Commission paid for service would not become eligible for deduction from assessable value by merely terming them as ‘additional discounts', if they are not so understood by agreement or/and trade in that commodity - Ordered for pre-deposit of entire duty amount (Para 5 & 6).


M/s Sharavasti Kisan Sahkari Chini Mills Ltd vs CCE (Dated : May 16, 2012)

Central Excise – Stay / Pre -deposit of Duty - Demand – Duty demand on Molasses - Since there is no dispute that the molasses was of 1986-87 sugar season, the same appears to be covered by the Additional Commissioner's order dated 19/3/91 by which the duty demand in respect of 11975.61 Qtls. had been confirmed and that had been set aside by the Tribunal - If this is so in respect of same quantity of molasses, the proceedings for demand of duty cannot be initiated on the ground that the appellant had subsequently applied for remission of duty which had not granted - the appellant have a prima facie case in their favour - Pre-deposit waived (Para 4).


M/s Sri Devi Oil Pvt Ltd vs CCE (Dated : July 17, 2012)

Central Excise – Stay/Dispensation of pre -deposit – Palm Fatty Oil and Spent Earth arising as by-products during manufacture of Refined Palm Oil – Prima facie entitled for exemption under Notification No 89/95 dated 18.05.1995 – Pre -deposit waived.


Electrotherm India Ltd Vs CCE (Dated : May 22,2012)

Central Excise - Benefit of Exemption - The issue involved is that whether the appellants have complied with the condition No.3 of Notification No. 39/2001 -C.E in order to be eligible for the benefit of said notification - Their unit at Kutch was a new industrial unit set up after the date of publication of notification and it is undisputed that a certificate was given by a Committee of consisting of the Chief Commissioner of Central Excise, Ahmedabad and the Principal Secretary to the Government of Gujarat, Department of Industry - The said certificate categorically indicates that the appellant had installed machinery and had complied with the said condition - Appellant made out a prima facie case for wa iver of pre -deposit of amounts involved and it is undisputed that the appellant unit was set up after the publication of notification and had started commercial production prior to 31.12.2005 - Prima facie, the subsequent investment made by the appellant in the plant in the form of backward integration cannot be held against them for denying the benefit of said notification - Pre -deposit waived (Para 7 & 8).


Durall Systems India Pvt Ltd Vs CCE (Dated: September 13, 2012)

CE – Applicant manufacturing and clearing Aluminium Sliding Windows, Aluminium doors & Glazing systems from factory – excisability thereof – applicant submitting that clearance of Al sliding windows & Al doors is within SSI exemption limit; that aluminium assembly of glazing systems comes into existence at site and it is immovable property & that they have already paid ST in respect of activity of glass glazing – demand is time barred as there are divergent views on the issue – for the normal period demand comes to Rs.1,23,04,978/- - applicant asked to make pre -deposit of Rs.50 lakhs for obtaining Stay: CESTAT [para 5].


Dhruv Industrial Company Ltd Vs CCE (Dated: May 25, 2012)

Central Excise - Stay / Pre -deposit of Duty - Benefit of Exemption under Notification No.14/2008-C.E-(N.T) dated 01.03.2008 for abatement of duty for Pozzolana Cement - It is prima facie evident that an assessee would be entitled to abatement under Notification No. 14/2008-CE (NT) if his product falls within the tariff heading 25232100 or 252329 and the product has to be white cement whether or not artificially coloured or whether or not with rapid hardening properties - In the instant case the product manufactured and cleared by the appellant is not white cement but grey Portland cement - Hence, the Commissioner (Appeals) has rightly held that the abatement is not entitled to the aforesaid notification - Ordered for pre-deposit of entire duty and interest (Para 7 to 12).


CCE, C & ST Vs Yashanand Filament Pvt Ltd(Dated : July 25, 2012)

Revenue arguing that the assessee has not paid the duty but the lower authorities disagreeing - there is no evidence produced in support of the department's claim that the respondents had not paid the dues within the time-limit specified - in the absence of any such evidence, it is difficult to uphold the contentions made by the department - Revenue appeal rejected: CESTAT [para 4]


M/s Shivam Industries Vs CCE (Dated: April 16, 2012)

Central Excise – Manufacture – Revenue was of the view that subjecting the transformer oil to filtration and heating for making it suitable for use in transformers amounts to manufacture – Chapter Note 4 of Chapter 27 states that in relation to lubricating oil and lubricating preparations of heading 2710, labelling or re -labelling of containers or repacking from bulk packs to retail packs or adoption of any other treatment to render the product marketable to the consumer shall amount to manufacture - the word 'consumer' in the expression "adoption of any other treatments to render the product marketable to consumer" would not cover an industrial user or manufacturer who process the transformer oil/lubricants for his own industrial use - In this case, the appellant had subjected the transformer oil purchased by them to the process of filtration and heating to make it suitable for their own industrial use i.e. for repair of the transformers - The process undertaken by the appellant does not amount to manufacture and as such the impugned orders are not sustainable (Para 7).


CCE Vs Said Advantium Ltd (Dated: June1, 2012)

Revenue contention that since Commissioner(A) no longer has the power to remand w.e.f 11.05.2001 matter has to be remanded to Commissioner(A) for decision on merits - Commissioner(A) after going through various findings has remanded matter back to the adjudicating authority with a direction to verify.


M/s Roots Industries Ltd Vs CCE (Dated: August 2, 2012)

Central Excise – Valuation – 50% of the cost of diaries distributed on the eve of New Year recovered from the dealers – In the absence of any evidence on record to show that these diaries have been provided by the appellants for their exclusive benefit or promotion of their business, value of such diaries recovered is not includable in the assessable value.


Clariant Chemicals India Ltd Vs CCE (Dated: September 18, 2012)

S.4 of CEA, 1944 – Applicant, a job worker, receiving compensation on termination of contract with principal – since applicant were paying CE duty at the same price at which principal was selling the goods, it cannot be said that the ‘termination proceeds' is an additional consideration – Pre-deposit waived and Stay granted: CESTAT [para 6]



CCE Vs M/s L'oreal India Pvt Ltd (Dated : November 5, 2012)

CX - Manufacture u/s 2(f)(iii) - there is no evidence to show that applicants undertook any activity which amounts to manufacture after clearance from Customs – Demand of CE duty of Rs.58 crores stayed by Bench – Revenue seeking modification of order – since retail price affixed before clearance from Customs and appropriate CVD paid, no ground to modify Stay order: CESTAT [para 2]



CCE Vs M/s Mahavir Cylinders (Dated : May 22, 2012)

Central Excise - Refund - Prices reduced downward with retrospective effect - Refund can be granted to an assessee in a situation where assessments were not made provisionally but the price of excisable goods are revised downwards after clearance of goods as per price variation clause which was in existence in the contract under which goods were being cleared and the buyer adjusted the amount from the sale price to be paid on goods subsequently sold (Para 7.3).


M/s Jayaswal Neco Industries Ltd Vs CCE (Dated : May 29, 2012)

Central Excise - CENVAT - Appellant taken CENVAT Credit of Duty paid on Capital goods on plant and machinery taken on lease from manufacturing companies - Prima facie view that the availment of capital goods Cenvat credit by the appellant was not correct, as the words "financing company" in Rule 4(3) of Cenvat Credit Rules cannot be read "as any person" - Ordered for pre -deposit of Rs.6 Crores (Para 7 & 9).


M/s Hindalco Industries Ltd Vs CCE (Dated : May 29, 2012)

Central Excise - Stay / Pre -deposit of Duty - CENVAT - SCN issued on the ground that the physica l receipt of certain quantity of alumina hydrate is not available in the appellant's record - The undisputed facts are that the principal raw material for manufacture of Aluminium is Alumina Hydrate, which is subjected to calcinations, as a

result of calcined Alumina is obtained - There is no dispute that in the RG-23 Part-I and II registers, the appellant have been showing the quantity of calcined alumina not the quantity of Alumina hydrate - When the receipt entry in the RG-23 Register regarding receipt of Aluminium is matched with the quantity of mentioned in the invoices, it is seen that the quantity of Alumina has been entered in the RG-23 A Register after dividing the weight of Alumina hydrate, as mentioned in the invoices, by 1.53 i.e. after converting the weight of Alumina Hydrate into the weight of Calcined Alumina - The Adjudicating Authority accepted that as per report received from the Range office, the record of receipt of Alumina Hydrate upto weigh bridge is ascertained - In view of the findings of the Commissioner confirming the receipt of the consignment of Alumina Hydrate up to the weigh bridge of the factory, and also the fact that the receipt of Hydrate Alumina was being shown in the item receipt report being maintained by the appellant, the Commissioner's decision to disallow the credit on the account of appellant's failure to maintain the proper records regarding receipt of Hydrate Alumina is not correct - The appellant have strong prima facie case - Pre -deposit waived (Para 6, 7 & 8).


M/s Tata Motors Limited Vs CCE(Dated : November 26, 2012)

CENVAT - Rule 6 of CCR, 2004 – Applicants having Engineering Research Centre in their factory premises where they produce prototypes of motor vehicles and which are exempted from CE duty in terms of notf. 167/71-CE - Consulting Engineering Services used in manufacture of such Prototypes which are used in manufacture of MV cleared on payment of duty – Prototypes are also cleared to DTA on payment of duty for their own use and also exported on payment of duty – Rule 6(5) of CCR, 2004 excludes “Consulting Engineer's services” from purview of rule 6(1) of CCR when used in or in relation to manufacture of dutiable as well as exempted goods – prima facie applicants have made out a case in favour – Pre -deposit of Rs.157 Crores waived and Stay granted: CESTAT [para 8]



M/s Natco Pharma Ltd Vs CCE (Dated : March 9, 2012)

Central Excise – CENVAT – Denial of CENVAT credit on printed aluminium foils on the ground that the supplier did not undertake any manufacturing activity and hence should not have paid duty and consequently credit of duty not admissible to the appellant – Followed the decision of Treadsdirect Ltd. ( 2011-TIOL-1845-CESTAT -BANG ) – Set aside the demand (Para 2 & 3).


M/s Shiv Shakti Nutrifoods Pvt Ltd Vs CCE (Dated : August 10, 2012)

Central Excise – CENVAT – Eligibility of CENVAT Credit on Sugar Cess paid under the Sugar Cess Act 1982 – Followed the decision of Shree Renuka Sugars ( 2007-TIOL-1827-CESTAT -BANG ) - Manufacturer is entitled to CENVAT Credit of Sugar Cess paid on the imported raw sugar (Para 2 & 3).


CCE Vs M/s Styr Exports (Dated : June 18, 2012)

Central Excise – CENVAT – The Respondents without receiving the cylinder heads and connecting rods in their factory, have taken credit irregularly and utilized the same - Undisputedly, the 'crank shafts' along with connecting rods and cylinder heads have been exported as crank shaft assemblies - Transportation of cylinder heads and connecting rods from their suppliers in Rajkot and Delhi to Mumbai Port directly and crank shafts from respondent's factory at Belgaum to Mumbai Port makes business sense - The department is not disputing the fact of export of these crank shafts - If the said connecting rods and cylinder heads were treated as exported by them as merchant exporter, the respondents will be eligible for duty paid on said items as rebate - Hence, there is no intention as such to evade any duty - The quantum of export benefit available is the same irrespective of whether the cylinder heads and connecting rods were received in their factory and thereafter exported or directly exported from their suppliers - They were, perhaps, ill advised to indulge in fabricating documents to show as if the cylinder heads and connecting rods have been received in their factory and from their factory, the said consignments have been exported along with crank shafts manufactured by them - This is clearly in violation of CENVAT Cre dit Rules and penalty under Rule 13 (1) he deserves to the imposed on them - The manner in which CENVAT credit has been taken and utilized is a clear violation of CENVAT Credit Rules which cannot be condoned or encouraged – Penalty reduced (Para 6 & 7).


M/s Lessac Research Laboratories (P) Ltd Vs CCE (Dated : July 25, 2012)

Central Excise - Demand of duty on samples retained by the appellants for in-house testing - No duty is payable in view of the judgement of the High Court of Mumbai – Consequently, no penalty is leviable.


CCE Vs M/s Punjab Tractors Ltd (Dated : October 16, 2012)

Whether or not free after sale service provided by the dealer to the customer would be includable in the transaction value as additional consideration to the manufacturer from the dealer – issue is no more res integra – matter finally settled by Bombay High Court in case of Tata Motors Ltd. vs. UOI (2012-TIOL-721-HC-MUM-CX) holding that PDI and free after sale services charges are not includable in the transaction value and these charges can be included in the transaction value only when they are charged by the assessee to the buyer – Revenue appeal dismissed: CESTAT [paras 3

& 6]


CCE Vs Raymond Steel Ltd (Dated : September 5, 2012)

Refund sanctioned consequent upon favourable order of Commissioner(A) - appeal against this order dismissed by Commissioner(A) and appeal filed before CESTAT on the ground that adjudicating authority ought to have awaited fate of departmental appeal against earlier order of Commr(A) - Revenue appeal has already been dismissed by CESTAT so there is no infirmity in the present order of Commr(A) - Present Revenue appeal also dismissed: CESTAT [paras 5 & 6]


CCE Vs Shri Anand Agrawal (Dated : November 20, 2012)

Penalty - Rule 26 of CER, 2002 - Merely because the manufacturer has discharged his duty liability along with interest and penalty equal to 25% in terms of s.11A(1A) of the CEA, 1944, the proceedings against the co -noticees cannot be held to be conclusive in nature - the benefit is available only to whom a notice is issued u/s 11A(1) of the CEA, 1944 for recovery of duty - such notices cannot be issued to authorised persons as they are no obligation to pay duty - invocation of penal provision of Rule 26 is dependent upon many factors which are unconnected with the provisions of section 11A - Commissioner(A) extending the benefit of proviso to sub-section 2 of section 11A to employees, authorised signatories etc. is not in accordance with law - Order set aside but matter remanded as Commr(A) has not discussed merits of each case in the context of imposition of penalty u/r 26 of CER, 2002 - Revenue appeal allowed in above terms: CESTAT [paras 3 to 10]



M/s Surfa Coats Ltd Vs CCE (Dated : May 24, 2012)

Central Excise – Stay / Pre -deposit of Duty – The activities relating to painting on commercial buildings have been treated as taxable service and activities of painting on non-commercials have been treated as nontaxable service - In view of the above, it was held that the appellants have violated the conditions of Rule 6(3)(c) of the CENVAT Credit Rules, 2004 inasmuch as they have utilized more than 20% of the credit towards payment of tax liability – Held that : Order of pre -deposit of the amounts for a technical violation in taking the suo motu credit by the appellants after depositing the cash amount in view of the credit utilized earlier will be harsh (Para 4).


M/s The Central Arecanut & Cocoa Marketing And Processing Co-Operative Ltd Vs CCE (Dated : June 12, 2012)

Central Excise – Valuation – Individual "Chocolate Eclairs" each piece weighing 5.5 gms, packed in 90/180 pieces in one pouch totally weighing 500gms/1000gms do not attract assessment under Section 4 A of the Act – Duty is payable under Section 4 only (Para 2).


Vantech Chemicals Ltd Vs CC, CE & ST (Dated : July 6, 2012)

Central Excise – Demand – Demand of duty on Control Samples of Pesticides - Control samples used to be so preserved till the date of expiry - In case, during the relevant period, any complaint regarding the efficacy of the pesticide arose from the market, the appellant would conduct test on the relevant control samples to find out the cause of the complaint - This practice was followed as statutorily required - After the date of expiry, the control samples would be destroyed – Followed the decision of Positive Packaging Industries - (2009-TIOL-2448-CESTAT -MUM) - N o liability to pay duty on the Control Samples of pesticides (Para 2).


CCE Vs Shri M M Solanki (Dated : August 13, 2012)

Central Excise - Rebate - Invoice issued without supply of goods - Duty debited - Penalty under Rule 26 - The assessee has issued invoice without supply of goods. However, duty is debited in cenvat account - As penalty has been imposed on others who have claimed rebate and cenvat credit also has been denied and rebate sanctioned has been demanded, the quantum of penalty has to be commensurate with the gravity of the offence, penalty is restored, but reduced. (Para 9)


M/s G M Enterprises Vs CCE (Dated : April 13, 2012)

Central Excise - Manufacture - Clearance of Combination pack of Shaving gel and Twin Blade Cartridge -T he activity of the appellant in packing the twin blade cartridge as also Gillette shaving gel tube in a combination pack and selling it at a discounted MRP of Rs.85/- does not amount to manufacture - As no new product has come into being, the combination product does not attract incidence of excise duty - Admittedly, the appellant has paid duty on Gillette shaving gel tube while procuring it and paid excise duty on MRP of the twin blade cartridges while clearing the combination pack - Thus, it cannot be said that the appellant has either failed to pay or short paid the excise duty - Demand of excise duty, interest and the penalty imposed cannot be sustained (Para 15).


M/s Sadana Foods Vs CCE (Dated : June 12, 2012)

Central Excise – SSI Exemption - Whether SSI benefit was admissible to the appellant in respect of cakes and pastries which were supplied to customers under the brand name "HOT BREADS" which was assigned to them by the brand name owner under a deed of assignment – Followed the decision of Vikshara Trading & Investment Pvt. Ltd ( 2003-TIOL-97-SC-CX ) - Registration of the deed of assignment was immaterial and that the goods cleared under the assigned trade mark by the assignee were not hit by the exclusion clause of the SSI Notification - There a re valid reasons to hold that SSI benefit cannot be denied to the appellant in respect of the subject goods on the ground that these goods were supplied to customers under a brand name belonging to another person (Para 2 & 3).


M/s Shree Radha Krishna Alloys Pvt Ltd Vs CCE (Dated : June 7, 2012)

Central Excise - Stay / Pre deposit of Duty - Demand - Clandestine clearances - There is no prima facie case on merits - The clandestine removal of the goods using parallel invoices is admitted and it is clearly corroborated by seizure of MS Ingots in two trucks with parallel invoices - There were more than one unused blank book without having serial number - It is admitted by the authorized signatory that the goods have been cleared using parallel invoices - The purchasers have admitted to receiving the goods without payment of duty - Under these circumstances, the dispute, if any is only on the quantum of duty which has been evaded and not the fact of evasion - Ordered for pre -deposit a further sum of Rs. 35 lakhs - Ordered for pre-deposit of penalty amount by the MD and waived in respect of other appellants (Para 6.1, 6.2, 6.3 & 6.4).


M/s Nagarjuna Agrichem Ltd Vs CCE (Dated : August 13, 2012)

Central Excise – Stay / Pre -deposit of duty - Supplementary Invoices - Interest on Differential Duty payable - interest is leviable on delayed or deferred payment of duty for whatever reasons – Pre -deposit ordered (Para 5).


Kirloskar Brothers Ltd Vs CCE (Dated : June 1, 2012)

Rule 6 of CCR, 2004 - Supplies to SEZ developers/units in the SEZ are deemed exports; therefore appellant is entitled to avail CENVAT credit on inputs/input services used in or in relation to the manufacture of final products supplied to SEZ developers/units - no question of paying 10% of price of goods cleared to SEZ in terms of rule 6 - matter settled by CESTAT in case of Bhoruka Aluminium Ltd. (2009-TIOL-1370-CESTAT-BANG) - appeal allowed with consequential relief: CESTAT [para 7]


M/s Sharp Menthol India Ltd Vs CCE (Dated : April 20, 2012)

Central Excise - Stay / Pre -deposit of Duty - Dummy manufacture at Jammu - The case made out by Revenue against the Applicants is that Amarnath lndustries was set up by the persons concerned with Sharp Menthol India Lim ited and Sharp Aeromatics India Limited to generate CENVAT credit without doing any manufacturing activity in Jammu and that Amarnath Industries did not manufacture any goods or at least the quantity of goods shown to be manufactured by them but only showing that the goods were manufactured by them and generating invoices against which the buyers could take CENVAT credit at no cost to Al because the duty shown to be paid by them gets refunded to them in cash under the provisions of Notification No. 56/2002-CE -

Held: Considering the business model of transporting the entire crude oil from Eastern UP to Jammu to do some simple process of freezing and centrifuging and transporting it back to Delhi for further processing of Mentha Oil and DMO and the 10 different evidences produced by the Revenue prima facie this case of the Revenue can not be dumped - But, the Revenue's argument that no processing was done in Jammu is not consistent with the observations recorded during the investigative visits - Arriving at the quantum of excise duty evasion done by the applicants requires much more detailed hearing and examination of case records which can be done only during the final hearing - The demands confirmed at the supplier's end and buyer's end amounts to recovering the same amount twice - A strict interpretation of the notification authorising refund and the Cenvat Credit Rules authorising taking of credit may result in such an outcome if the fraud made out by Revenue is held to be proved - Ordered for pre-deposit of 15% of duty demanded (Para 25 & 26).

cestat ruling (central excise) - taxindiaonline.com€¦ · cestat ruling (central excise)...

Documents