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CESTAT RULING (CENTRAL EXCISE)

2015-TIOL-1823-CESTAT-BANG

Sreepathi Pharmaceuticals Ltd Vs CC, CE & ST (Dated: May 26, 2015) Central Excise - Reversal of Cenvat credit - Inputs supplied for manufacture destroyed in fire at Job worker's premises before reaching final stage of goods - Rule 3(5c) is not applicable since inputs and not the final product got destroyed - Nor remission of duty is involved - Appellant held is entitled to Cenvat credit of duty on said inputs destroyed in fire accident - Impugned order denying credit is set aside. (Para 4, 5, 6)

2015-TIOL-1822-CESTAT-HYD

Singhania Offset Printers Pvt Ltd Vs CC, CE & ST (Dated: February 04, 2015) Central Excise - Waiver of Pre -deposit - Manufacture of self adhesive labels - Whether products of printing industry attracting nil rate of duty - Held on facts that prima facie, the stickers produced are covered by HSN chapter notes - However, since the original adjudicating authority had taken a view in favor of the appellant and further issue relates to classification and requires detailed consideration of Tariff description, HSN notes etc, appellant is directed to deposit Rs.50,000 to hear the appeal - Pre -deposit of balance due is waived. (Para 4)

2015-TIOL-1821-CESTAT-MUM

Shraddha Ispat Pvt Ltd Vs CE (Dated: June 08, 2015)

CX - CENVAT - Availment of credit of service tax paid by appellant under GTA services during the period 24.03.2005 to 15.06.2005 under TR-6 challan - credit denied on the ground that during the material time TR-6 challan was not prescribed as a valid document for taking credit under rule 9 of CCR, 2004. Held - Punjab & Haryana High Court in the case of Ralson India Ltd. and Bombay High Court vide order dated 18.02.2015 has decided the same issue in favour of assessee inasmuch as credit availed on such TR-6 challans has been held as admissible - Therefore, order of adjudicating authority is not sustainable and hence set aside - Appeal allowed: CESTAT [para 5, 6]

2015-TIOL-1818-CESTAT-AHM

Dhariwal Industries Ltd Vs CCE & ST (Dated: August 13, 2015) CE - Pan Masala (Packing Machine, Capacity Determination & Collection of Duty) Rules, 2008 - Ban on usage of plastic pouches in packing of gutkha - appellant paying duty for the month as per rule 9 & later closing down their factory but coming to know that the ban is effective from 01.03.2011, hence appellant reopening factory - refund of duty claimed in respect of the six days when factory was closed - It is Rule 16 that applies and not rule 10 - Refund permissible on pro-rata basis - appeal allowed: CESTAT [para 9, 10, 13, 14]

Also see analysis of the order


M/s Sunil Industries Ltd Vs CCE (Dated: February 05, 2015)

CX - HASITPACD Rules, 1998 - Compounded levy scheme - Processed fabrics - Inclusion of length of gallery and cooling zone while determining capacity of stenters as 17 chambers - against order of Commissioner fixing capacity, appellant making representation but no reply received - in the meanwhile demand notices issued for recovery of differential duty - demand confirmed, hence appeal before CESTAT. Held: Tribunal in the case of Samarth Knitters P Ltd. - 2013-TIOL-1862-CESTAT -MUM has dealt with exactly similar issue and held that length of galleries are not be taken into consideration while fixing capacity of stenter - assessee can challenge the demand raised although they have not challenged the order fixing annual capacity by the Commissioner - Order set aside and appeal allowed: CESTAT [para 3, 4]


Smruti Organics Ltd Vs CCE (Dated: June 18, 2015)

CX - When it is not disputed that the appellant is not required to discharge any CE duty on the goods exported by them and the revenue authorities have held that the amount debited is without any authority of law, the natural corollary would be that the amount is returned as Revenue can collect tax/duty only by authority of law - Order set aside and appellant directed to take the credit back in their CENVAT account - Appeal allowed: CESTAT [para 6, 8]


2015-TIOL-1813-CESTAT-DEL

M/s Space Telelink Ltd Vs CCE (Dated: June 29, 2015)

CX - Assessee has defaulted in making payment of Excise duty within 30 days and thereafter they utilized Cenvat Credit account for payment of duty - Later on, the appellant paid the duty through PLA along with interest and sought Cenvat Credit on duty paid - Revenue views that assessee have contravened provisions of Rule 8 (3A) of CER, 2002 - As per Indsur Global Ltd. 2014-TIOL-2115-HC-AHM-CX , as Rule 8(3A) has been declared unconstitutional, consequently proceedings against assessee are not sustainable - Assessee has contravened provisions of CER, 2002, therefore, general penalty of Rs.5,000/- under Rule 27 is imposed - Managing Director has not contravened, penalty on Managing Director are set aside: CESTAT


M/s Sujata Chemicals Vs CCE & ST (Dated: June 10, 2015)

CX - Assessee is sending Caustic Potash Flakes for purification to two job workers M/s. Vinayak Chemicals and M/s. Atlas Pallet Industries - In case of job worker M/s. Atlas Pallet Industries, 100% yield of Potash Pallets is the result whereas in case of M/s. Vinayak Chemicals, a processing loss of 10% is claimed in yield - No Scientific Literature or certificate from a Chartered Engineer was produced to support their claim that in process of conversion of Caustic Potash Flakes into Potash Pallets there is a loss of 10% as claimed by them - In absence of any such documentary evidence, no reason to interfere with order passed by first appellate authority and same is required to be upheld in so far as denial of CENVAT credit and interest is concerned: CESTAT

Penalty - As assessee was sending inputs through challans under Rule 4 (5)(a) of CCR, 2004, it can not be said that there was any suppression/ mis -statement on part

of assessee with intent to evade payment of duty - Penalty under Rule 15 (2) of CCR, 2004, read with Section 11AC of CEA, 1944 is set-aside: CESTAT


West Coast Paper Mills Pvt Ltd Vs CCE & ST (Dated: May 29, 2015)

Central Excise - Inputs used in the construction of chimney, a part of pollution control system, are capital goods - Cenvat credit is admissible - Since credit availed reflected in statutory documents and more so the issue was also a contentious and debatable one, malafides cannot be attributed - Penalty hence set aside. (Para 3, 4)


Young Steels Pvt Ltd Vs CCE (Dated: March 17, 2015)

CX - Appellant manufactures M.S. Ingots - One of the buyers of M.S.ingots is M/s.Kamdhenu Ispat Ltd., (KIL) - During search of premises of M/s. KIL, certain pen drives, CPUs and Lap Tops, ingot purchase file recovered - Out of total duty demand of Rs. 74,06,356/-, Rs. 12.93 lakh is based on entries in purchase file recovered from premises of M/s.KIL - There is no dispute that Shri Devender Arora, MD of appellant company in his statement, when shown the above mentioned purchase file, admitted that entries in purchase file pertaining to his company are true, and that the goods had been supplied to KIL without payment of duty - Out of duty demand of Rs.12.93 lakh, appellant have already paid Rs.10 lakh - Remaining duty demand of Rs.61 lakh is based on data retrieved from pen drives and CPU - Duty demand of Rs.44 crores had been raised against M/s. KIL based on CPU data and Commissioner expressing doubt about genuineness of that data has dropped the demand - Commissioner while confirming duty demand based on data retrieved from pen drives has not gone into question as to whether the data is genuine or is tampered with, same can be examined in detail only at the time of final hearing - Appellant company is directed to deposit Rs.5 lakh within four weeks: CESTAT [Para 7, 8, 9, 10]


CCE Vs M/s Garware Wall Ropes Ltd (Dated: April 30, 2015)

CX - Refund, Interest - s.11B, 11BB of CEA, 1944 - Order of Tribunal was passed on 25.06.2007 holding that the credit of refund amount to Consumer Welfare fund is wrong and appeal was allowed with consequential relief - Revenue contention is that interest on refund is payable w.e.f 25.09.2007, that is after 3 months from the date of the CESTAT order. Held: Interest is payable from the date of expiry of 3 months from the date of receipt of application under s.11B(1) of the CEA, 1944 - Order passed by Commissioner(A) based on the ruling of the Bombay High Court in Ballarpur Industries - 2009-TIOL-34-HC-MUM-CX affirmed by apex court in Ranbaxy Laboratories - 2011-TIOL-105-SC-CX does not suffer from any illegality or impropriety - Revenue appeal dismissed: CESTAT [para 5, 6]


Ruby Mills Ltd Vs CCE (Dated: June 18, 2015) CX - s.35C(2A) of CEA, 1944 - Applicant seeking extension of stay on the ground that their appeal has not come up for disposal for no fault of theirs. Held: In the case of Venketeshwara Filaments Pvt. Ltd. - 2014-TIOL-2388-CESTAT -AHM it is held that consequent upon omission of 1 st , 2 nd and 3 rd proviso to section 35C(2A) of the CEA, 1944 by the FA, 2014 it is to be held that there is no provision for making

further application for extension of stay and that the stay order passed by the Tribunal, if it is in force beyond 07.08.2014, it would continue till the disposal of the appeals and there is no need for filing any further applications for extension of orders granting stay either fully or partially – since the stay in the present case was in force beyond 07.08.2014, same would continue till the disposal of the appeal - Application disposed of: CESTAT [para 2, 3]

2015-TIOL-1805-CESTAT-KOL

CCE Vs M/s Texmaco Rail And Engg Ltd (Dated: November 13, 2014) CX - Assesse are manufacturer of excisable goods and cleared without payment of duty under 'Served from India Scheme' i.e. "SFIS" after availing benefit of exemption Notfn 34/2006-CE - Assessee contends that benefit of said Notfn cannot be equated to "exempted goods", and they not required to pay an amount equal to 10% of value of goods cleared by availing benefit of said notfn - Revenue has assailed impugned order of Commissioner on ground that he has allowed credit on duty free materials used in manufacture of impugned goods, which were exempt from payment of duty - At the time of passing order, case laws cited by assessee were not available to Commissioner and therefore, he had no occasion to examine facts in light of said case laws - Both sides agreed that these issues to be addressed afresh by adjudicating authority - Case remanded: CESTAT


Bharat Heavy Electricals Ltd Vs CCE, C & ST (Dated: May 29, 2015)

Central Excise - Refund claim - Limitation - Payment of duty pending disposal of the appeal - Eligibility to claim exemption under Notification No. 108/95-CE - Lodging of explicit claim of protest must precede payment of such duty - Neither the duty paid by manufacturer during the pendency of appeal for the disputed period was under protest - Nor was the CESTAT order relied on covers the entire period in question - Refund claim filed beyond prescribed period of limitation under section 11-B is hit by limitation as such was rightly rejected - Contention of appellant that as the issue was before the Tribunal by way of an appeal, the duty paid during the subsequent period must be deemed to be having been paid under protest held cannot be appreciated because statute provided a specific procedure to be followed which was not complied - Question of deemed fiction thus does not arise - No infirmity in the impugned orders - Assessee appeal has no merit hence is rejected. (Para 7)

2015-TIOL-1802-CESTAT-MAD

CCE Vs M/s Dharani Sugars And Chemicals Ltd (Dated: April 16, 2015) Central Excise - CENVAT credit - precise question raised by Revenue is whether the duty paid on the molasses generated by sugar plant of appellant and such molasses utilised for the purpose of manufacture of de-natured spirit, rectified spirit and extra neutral alcohol, shall allow the appellant to transfer the credit of the duty so paid on molasses for set off against the duty liability against the sugar cleared from the factory.

Held: The Chennai High Court in the Rajshree Sugars and Chemicals case, on similar facts, ruled that the transfer of credit between distillery and sugar units was permissible; same applicable to the instant case. [Para 2]


Videocon Industries Ltd Vs CCE (Dated: July 31, 2015) CX - S.4A of CEA, 1944 - Valuation - While arriving at the assessable value for the retail sale price, an amount of abatement specified by notification can only be deducted - there is no provision under the law to exclude warranty charges from the RSP - statutory provision under Section 4A cannot be altered or influenced merely because the appellant has chosen to discharge service tax on portion of the retail sale price - Demand upheld and appeal dismissed: CESTAT [para 6]



M/s Balkrishna Industries Ltd Vs CCE (Dated: June 17, 2015) CX - Appellant selling six year old used forklift on discharge of CE duty at depreciated value - after department raised objection that appellant should have paid an amount equal to credit taken, appellant paying differential duty along with interest under protest - later refund claimed of amount paid which was rejected. Held: Machine (fork lift) cleared after putting into use cannot be treated as cleared 'as such' - insertion of proviso in rule 3(5) of CCR, 2004 w.e.f 13.11.2007 makes it clear that there is a difference between machine cleared without putting into use and cleared after use - in view of authoritative judicial pronouncement in case of Raghav Alloys Ltd. - 2010-TIOL-881-HC-P&H-CX , order rejecting refund set aside and appeal allowed with consequential relief: CESTAT [para 4, 5]


M/s Asiatic Gases Ltd Vs CCE (Dated: May 8, 2015) CX - Interest - Whether appellant is required to pay interest in a case where duty along with part interest was paid voluntarily - appellant submitted that inte rest on delayed payment of duty cannot be demanded unless duty is determined under s.11A(2) of CEA, 1944. Held: It is an admitted fact that there is substantial delay in payment of duty even though appellant has paid interest voluntarily - even though the duty was not determined u/s 11A(2) of CEA, 1944 but when there is admitted delay in payment of duty, interest is chargeable even prior to 11.05.2001 - in view of apex court decision in International Auto Ltd. 2010-TIOL-05-SC-CX interest is levied for loss of Revenue on any count - no infirmity in the order, hence sustained - appeal dismissed: CESTAT [para 5]


M/s Ambassador Coolers Pvt Ltd Vs CCE (Dated: February 3, 2015) CX - Assessee has placed purchase order to supply all goods to M/s. Nowrangroy Rameshwar with directions that goods are required to be delivered at job worker's place - Invoices were raised in name of assessee and goods were delivered to job worker, which were received by assessee after processing - Rates quoted are of job work charges only, although the job worker has paid VAT thereon - It cannot be concluded that goods have been sold by job worker to assessee - When assessee has

filed reply to SCN, facts were required to be verified which Revenue has failed to do so - Under notfn 214/86, job worker is required to intimate the department that they are undertaking activity of job worker and not required to pay duty but that fact has also been not verified by department - Assessee is entitled to take Cenvat credit - Appeal allowed: CESTAT


M/s Pepsico India Holdings (P) Ltd Vs CCE (Dated: April 16, 2015) CX - Assessee are manufacturers of Aerated Water, one of the inputs is glass bottles in respect of which input duty CENVAT Credit has been taken - Some glass bottles, during use get broken and same are cleared as glass scrap - During period of dispute there was no provision in CCR, 2001/2002 providing that when CENVAT Credit availed inputs are cleared as waste, some amount in respect of same is required to be paid - Impugned order set aside and appeal allowed: CESTAT


M/s Hetero Labs Ltd Vs CCE (Dated: May 1, 2015) Central Excise - Bulk drug manufacture - Procurement of duty free imported and indigenous raw material - Cenvat credit utilization -Whether or not credit availed on duty paid inputs can be used for discharge of duty at the time clearance of the duty free imported inputs - Held in matters of CENVAT credit, there is no one-to-one correlation and where appellants have used such credit for payment of duty for clearance of imported raw materials, they would not be in a position to use the same at the time of clearance of the final product-Treating reversal as proper, pre -deposit dispensed with - Matter remanded to the Commissioner (A) for a decision on merits. (Para 4)


M/s Shah Paper Mills Ltd Vs CCE & ST (Dated: June 22, 2015) CX - Assessee is manufacturer of kraft paper from waste paper - Whether main assessee was eligible to take credit on basis of cenvatable documents showing payment of duty - Assessee taking cenvat credit is not required to go beyond cenvatable document to know as to how it has arisen - What input recipient is required to verify is that supplier of raw material is genuine and proper duty is paid - Both the conditions are fulfilled - Duty paid on waste kraft paper was accepted by officer Incharge of supplier unit M/s SPPML - On merit assessee was eligible to take CENVAT credit - No evidence brought on record that main assessee and its Director were aware that inputs received was as a result of an activity not amounting to manufacture - Demand issued is clearly time barred as extended period is not imposable and no penalties can be imposed upon assessee: CESTAT


M/s Surya Roshni Ltd Vs CCE (Dated: July 6, 2015) CX - Refund - Assessee is manufacturer of electric bulbs and are procuring inputs and capital goods and also availing Cenvat Credit thereon - They opted to avail exemption under notfn 50/2003-CE i.e. area based exemption - At the time when assessee took Cenvat Credit on inputs/capital goods, their final product was dutiable and later on they opted for availing exemption under said notfn - As per Apco Pharma Ltd. 2011-TIOL-913-HC-UKHAND-CX , they are not required to reverse Cenvat Credit on input /

inputs contained in work-in-progress / finished goods lying in their facto ry: CESTAT


Gimatex Indst Pvt Ltd Vs CCE (Dated: June 18, 2015) CX- Utilisation of CENVAT credit during April 2005 to March 2007 for discharge of ST liability on outward transportation by engaging goods transport operators - lower authorities denying such utilisation. Held: Both the lower authorities have misread the provisions inasmuch as rule 2(r) of CCR, 2004 specifically provides that a person liable for paying Service Tax is to be construed as a provider of taxable service - when the provisions of rule 2(r) and rule 3(4) are read holistically, it would seem that CENVAT credit can be utilized for discharge of ST liability during the material period and the same need not be paid only in cash - this view is fortified by decision in Nahar Industrial Enterprises Ltd - 2007-TIOL-555-CESTAT -DEL - Revenue, aggrieved by this decision, had preferred an appeal and the same was dismissed by the Punjab & Haryana High Court - order set aside and appeal allowed with consequential relief: CESTAT [para 5, 6, 8]


Murli Industries Ltd Vs CCE (Dated: June 12, 2015)

CX - Appellant manufacturing kraft paper and clearing the same on payment of duty - case of Revenue is that goods are exempt by notification 4/2006-CE as amended and hence appellant cannot pay duty and claim credit on inputs - Demand issued for recovery of credit availed and to consider duty paid/collected as u/s 11D of CEA, 1944 . Held: Issue involved is already decided by Tribunal in case of Balkrishna Paper Mills Ltd. & Others - 2015-TIOL-1100-CESTAT-MUM by holding that appellant cannot be forced to avail Nil rate of duty as they have option to pay duty under sr. no. 91 & 93 of the notification - appeals are allowed: CESTAT [para 3, 4]


Value Industries Ltd Vs CCE (Dated: February 18, 2015) CX- Whether the activity of repair carried out on returned defective compressors falls under "repair" as provided u/r 173H of CER, 1944 or ‘manufacture' u/s 2(f) of the CEA, 1944 - Activity is repair as no new commodity emerges - CE duty demands set aside and appeal allowed: CESTAT [para 5]


M/s Varroc Engineering Pvt Ltd Vs CCE (Dated: September 14, 2014) CX - Appellant availing CENVAT credit of tax in respect of services provided by Prakash Air Freight Pvt. Ltd. – department of the view that appellant had wrongly paid ST on service which were exempted from payment of ST vide notification 29/2005-ST in relation to transport of goods by aircraft operator and subsequently availed credit – appellant submitting that bills issued by service providers shows the same as 'courier service' - credit denied and in de novo proceedings Assistant Commissioner concluding that 'courier service' provided by service provider was not covered under definition of 'input service' – Commissioner(A) holding that services are post clearance export activities not connected with manufacture of goods, hence credit not admissible. Held: As delivery charges are included in selling price, in view of Karnataka HC decision in ABB Ltd. - 2011-TIOL-395-HC-KAR-ST , the expression 'activities relating to business' admittedly covers transportation up to the customers place and, therefore, credit

cannot be denied – as it is an integral part of business of manufacturer to transport and deliver the goods manufactured, appellant entitled to take credit – Appeal allowed with consequential benefits: C ESTAT [para 7]


M/s Timex Watches Ltd Vs CCE (Dated: May 27, 2015)

CX - Whether inputs on which assessee have taken modvat credit have been put to use for manufacture of watches - As per Report of Defective Work, assessee initially availed modvat credit on inputs/parts of watches, at time of receipt of same before putting to use, assessee has conducted certain tests to find out whether inputs to be usable or not - Inputs which did not find fit to be used, assessee has reversed credit thereon, rest of inputs were issued by assessee for processing or assembling of watches - Defective goods were found only after inputs were issued for processing or assembling of watches, assessee is entitled to credit as per Rule 57D of erstwhile Central Excise Rules, 1944: CESTAT

CX - Shortage of inputs - Assessee have explained general ledger of stock adjustment account reflected inputs have been short accounted in some cases and in some other cases inputs are in excess, therefore, there is no actual shortage of inputs - Shortages and excesses are due to the fact that stock accounting used to be done on weighment basis since minute inputs ran into millions and physical counting is not possible - There is no shortage of inputs as explained by assessee - All shortages/rejections have been supported by chartered accountant certifying the same which has not been controverted by Revenue with cogent evidence - Assessee are not required to reverse modvat credit taken by them - Penalty is not imposable on assessee: CESTAT


VST Industries Ltd Vs CCE, C & ST (Dated: March 27, 2015) Central Excise - Capital goods - Scope - Inputs (insect controlling traps) used for managing/controlling the tobacco beetle infestation - Held, have to be considered as eligible cenvattable inputs having been used in relation to manufacture of final products - Credit availed clearly reflected in the records - Question of malafide intention does not arise - Stereotype reasoning given in all the cases of adjudication orders by Revenue to invoke extended period of limitation, deprecated- Impugned order of duty demand, penalty and confiscation of goods, set aside.(Para 4, 5, 6)


M/s Rajuri Steels Pvt Ltd Vs CCE & C (Dated: May 13, 2015) CX - Appellant was working under the compounded levy scheme u/s 3A of CEA, 1944 - since appellant did not discharge CE duty liability as fixed u/r 96ZP(3) of CER, therefore, SCN issued and duty confirmed which appellant paid without contesting the order-in-original - subsequently, another SCN was issued demanding interest and equal amount of penalty u/r 96ZP(3) and which was confirmed - appellant before CESTAT. Held: No discretion is provided to any authority to either reduce or waive penalty and interest in any circumstances - when there is admitted delay in payment of duty under compounded levy scheme, interest and penalty provided under the proviso to the rule shall unavoidably be imposed - Penalty and interest rightly imposed by adjudicating authority and upheld by Commissioner(A) which do not require any interfe rence - Order upheld and appeal dismissed: CESTAT [para 5]


M/s Castrol India Ltd Vs CCE (Dated: June 15, 2015) CX- CENVAT - Rule 2(l) of CCR, 2004 - Outdoor Catering Service - Eligibility - in view of LB decision in GTC Industries Ltd. - 2008-TIOL-1634-CESTAT-MUM-LB & appellants own case - 2010-TIOL-733-CESTAT -AHM , credit is admissible - howe ver, since appellant have collected 3% of the total catering charges from their employees, CENVAT credit is not permissible on the attributable amount - as copies of input services invoices have been submitted by appellant from time to time along with monthly returns, extended period of limitation is not applicable - demand hit by time bar, demand beyond one year of SCN is dropped - interest payable on the quantified amount - penalty waived: CESTAT [para 5]


M/s Ismt Ltd Vs CCE (Dated: May 7, 2015) CX - During the course of manufacture of Alloys and Non-alloy cast and rolls, slag arises which is waste material and which is cleared without payment of duty - Revenue demanding amount of 10% of value of slag by invoking rule 6(3)(i) and (ii) of the CCR, 2004. Held: In terms of para 3.7 of Chapter 5 of the CBEC's Excise Manual of Supplementary Instructions, 2005, CENVAT credit is admissible even in respect of input contained in any waste, refuse or by-product, therefore, demand under rule 6(3) is not maintainable - Supreme Court in case of Hindustan Zinc Ltd. - 2014-TIOL-55-SC-CX has held that demand under rule 6(3)(i) is not sustainable in respect of any waste, by product, refuse cleared without payment of duty - in view of settled legal position, Order set aside and appeal allowed: CESTAT [para 5]


CCE Vs Ispat Industries Ltd (Dated: June 29, 2015) CX - Valuation - s.4 of C EA, 1944 - Whether cost of transportation from factory to depot will be includible in the value of goods during the period April 2002 to March 2003 - Commissioner (A) allowed appeal keeping in view Tribunal's order dated 01.12.2003 wherein it was held that respondent is not responsible to pay the cost of transport from the place of removal to the place of delivery i.e. from the factory gate to the depot separately & in terms of Rule 5 of the Valuation Rules, 2000, such a cost of transport which is also separately shown is not includable in the valuation for the purpose of excise duty - Revenue in appeal. Held: Tribunal's order has been upheld by the Supreme Court vide order dated 25.03.2015 - 2015-TIOL-40-SC-CX - in view of the said decision, Revenue appeal dismissed: CESTAT [para 3]


SEW Infrastructure Ltd Vs CCE & C (Dated: June 8, 2015) CX - Penalty imposed of Rs.2.94 crores on appellant under rule 25 of CER, 2002 - Appellant submits that Tribunal has vide Final order dated 06.03.2014 allowed the appeal of the main noticee against whom a demand of Rs.2.94 crores was made and equal amount of penalty was imposed; that since the demand itself has not been sustained, no penalty can be imposed on co -noticee. Held: Since duty demand on main appellant has been set aside, penalty on the present appellant cannot survive - penalty set aside - appeal as well as stay petition are allowed: CESTAT [para 6]

2015-TIOL-1773-CESTAT-ALL

CCE Vs M/s Railway Equipment And Engg Works (Dated: June 10, 2015) CX - Classification - Whether Cast Iron Plates for Emery machinery manufactured by assessee will be classified under CH 7325.10 of CETA, 1985 or under heading 8437.00 - Commissioner (A), while holding classification of goods under 8437.00, has relied upon one report from Superintendent of Central Excise, Range Mathura - From report reproduced in order of First Appellate Authority, it is correctly held that goods were classifiable under heading 8437 - If manufacturing unit is lying closed at moment then case of Revenue cannot be decided in their favour because it is responsibility of Department to establish, with documentary evidence, that claim made by manufacturing unit is not acceptable or that other finishing activities were required to be done on cast iron plates for emery machinery - Appeal dismissed: CESTAT


Bhushan Steel Ltd Vs CCE (Dated: May 7, 2015) CENVAT - Since pipes are sold on basis of length, end cuttings which are not saleable are sent under cover of duty paid invoices by registered depots to Sahibabad unit for manufacture of ingots - credit is availed on the duty suffered on value varying from Rs.36/- to Rs.42/- per kg - Contention of department is that as invoices issued of end cuttings mention value as Rs.15/- per kg, credit is to be restricted only to the duty payable on said value - Demand of Rs.1.20 crores confirmed. Held: Stand of the Department is not correct in view of the Apex court's judgment in the case of Commissioner of Central Excise & Customs vs. MDS Switchgear Ltd. - 2008-TIOL-245-SC-CX , wherein it has been held that the receiver manufacturer who had received the duty paid inputs from a supplier-manufacturer is entitled to Cenvat credit of the duty paid by the supplier manufacturer and the CEx Authorities having jurisdiction over the recipient manufacturer cannot review the assessment of the duty at the end of the supplier manufacturer - Demand of Credit is without any basis - CENVAT Credit of duty paid on Welding Electrodes as well as CI Slog Pot is also admissible - Appeal allowed: CESTAT [para 9, 10, 11]



Purab Printers Vs CCE (Dated: May 18, 2015) CX - Clause 4(e) of Notfn. 8/2003-CE - Appellant manufacturing and supplying self adhesive labels - Benefit of SSI sought to be denied on the ground that they are branded goods and not covered by clause 4(e). Held: Intention of government is to grant the benefit of SSI exemption to goods, namely, packing material, containers, metal labels etc. which may carry brand name of customers - stated policy is clearly not to consider these labels manufactured by one person themselves as having any connection in the course of trade with the goods manufactured by customer for whom labels are made - Oxford dictionary describes a sticker as "an adhesive label or notice" - no reason not to consider a label as sticker especially in view of the fact that metal labels are also mentioned in clause 4(e) - an interpretation to the effect that stickers would mean only gummed labels is not borne by sound reasoning - labels are eligible for exemption in terms of notification 8/2003-CE as amended by 47/2007-CE - order set aside and appeal allowed: CESTAT [para 5.1, 5.2]


M/s Aplab Ltd Vs CCE (Dated: May 15, 2015)

CX - CENVAT credit denied on the ground that name of appellant appears as consignee but in the column of buyer, name of dealers are mentioned. Held: Revenue contention is absurd - For taking CENVAT credit on input it is not mandatory that payment towards purchase of the input has to be made - so long as input is duty paid, received in the factory and used in the manufacture, credit is not deniable - appeals allowed: CESTAT [para 5]


AMD Metplast Pvt Ltd Vs CCE & ST (Dated: March 18, 2015)

CX - Assessee supplied printed sheet to their sister unit charging excise duty at the rate of 16% ad valorem instead of 8% ad valorem - Credit note was issued to sister unit reverse the credit taken by them and also filed refund claim of excess duty paid by them - Assessee submits that sister unit to whom goods were transferred have reversed excess duty, therefore, bar of unjust enrichment has been passed by assessee - As per Ispat Industries Ltd.- 2014-TIOL-2053-CESTAT -MUM, assessee is entitled for refund claim - Appeal allowed: CESTAT


M/s Acer India Pvt Ltd Vs CCE & ST (Dated: June 3, 2015)

Central Excise - Condonation of delay - Appellant cleared excise duty paid goods to SEZ and claimed refund under Rule 5 of Cenvat Credit Rules 2004, which was granted in adjudication and agitated by Revenue before Commissioner (Appeals), who held the claim time barred, allowed the departmental appeal, and permitted re -credit of the amount debited in CENVAT Account upon which, theAppellant repaid the amount refunded - Meanwhile, proceedings were initiated for recovery of interest on the erroneous refund, culminating in the instant appeal contesting the merit of the original refund itself, with COD application for delay of 433 days, taken up for disposal herein.

Held: The OIA was passed on 04.10.14 and in the said order while allowing the Revenue appeal Commissioner (Appeals) allowed re-credit - The department again issued show cause notice for demand of interest on the refund sanctioned, which was already paid by the appellant in pursuant to the OIA - the reasons of delay is fully justified and beyond their control due to initiation of another round of proceedings against the appellants - following theSupreme Court decision in the case of Collector, Land Acquisition Anantnag and Another Vs. MST. Katiji and Others; and the Tribunal ruling in the case of ARR Enterprise Vs. CCE, Trichy, the delay in filing the appeal is condoned [Para 3]


CCE Vs Dynavista Industries Pvt Ltd (Dated: March 17, 2015)

Central Excise - CENVAT credit - respondents are manufacturer of Kite Detergent Powder, and discharged duty under Section 4A of the Central Excise Act 1944 - While clearing the goods, they also cleared in combi-pack containing free offer of detergent soap along with washing powder - credit attributable to the detergent soap which was supplied free along with detergent powder denied in adjudication; and demand for its recovery with interest and penalty confirmed - demands set aside by Commissioner (Appeals) and agitated by Revenue herein.

Held: Revenue's only ground is that free supply of detergent soap which was packed inside the detergent powder and therefore respondents are not eligible to avail cenvat credit on the duty paid on the detergent soap as it is not an input - Revenue has not

disputed the fact that respondent has discharged central excise duty on the detergent powder under Section 4A - respondents had packed free supply of one detergent soap inside the washing powder of 500 gms. and correctly declared the net weight of the combi-pack of 575 gms. and discharged duty on the detergent powder - respondents are rightly covered under Section 2(f) (3) of Central Excise Act - The lower authority has rightly relied on decision of the Tribunal in the case of Lotte India Corporation which was considered by the Gujarat High Court in its ruling pronounced in the case of Prime Healthcare Products - Revenue's reliance on Perfetti Van Melle ruling misplaced since it pertained to the period prior to amendment of Sec 2(f) while the material period in the instant case is after the amendment and the Gujarat HC ruling applies - no infirmity in the impugned order which is upheld[Para 5]


M/s Triveni Engineering And Industries Ltd Vs CCE & ST (Dated: June 25, 2015)

CX - Assessee is manufacturer of sugar and availed Cenvat Credit of ST paid on transit insurance in respect of insurance of goods during transit from factory to customers premises - Sale of sugar by assessee was on FOR destination basis - As per sale contract sugar was required to be delivered at customers destination - Insurance expenses have been paid by assessee for transportation of goods upto the place of buyer and same has been reimbursed by buyer of goods - As per Suzuki Motorcycle (I) Pvt. Ltd. 2013-TIOL-1974-CESTAT-DEL assessee is e ntitled to take cenvat credit of insurance premium charges paid by them when there is no dispute that goods were delivered at customers place - Appeal is allowed: CESTAT


M/s Ttk Prestige Ltd Vs CCE (Dated: May 27, 2015)

Central Excise - CENVAT credit - The issue involved is whether the service tax credit of one unit of the ISD distributed by it to the appellant makes the appellant eligible to it.

Held: Tribunal, in Final Order No.404412/2015, dated 08.04.2015 in the India Cements case held that it is not necessary that the credit earned by one Unit need be consumed by that Unit only, but can be transferred to the other Unit by ISD for consumption - In absence of any dispute as to the earning of the credit distribution thereof is not deniable [Para 4, 5]


M/s Ultra Tech Cement Ltd Vs CCE (Dated: June 10, 2015)

CX - CENVAT - Rule 2(l) of CCR, 2004 - Services received and used in residential colony of appellants employees, whether Input Service - Issue no longer res integra - Bombay High Court in case of - 2010-TIOL-720-HC-MUM-ST has held that services which are rendered at the residential colony of the employees cannot be availed as CENVAT credit - Credit correctly held to be inadmissible - as for penalty, in appellants own case, Tribunal on an identical issue relying on the Andhra Pradesh High Court decision in ITC Ltd. - 2012-TIOL-199-HC-AP-ST has vide its order dated 15.04.2013 set aside the penalties - no reason to deviate from such view already taken - appeal partly allowed: CESTAT [para 4, 4.1]


Indian Petrochemicals Corporation Ltd Vs CCE (Dated: June 22, 2015)

CX - Applicant seeking extension of stay on the ground that their appeal has not come up for disposal for no fault of theirs. Held: In the case of Venketeshwara Filaments Pvt. Ltd. - 2014-TIOL-2388-CESTAT-AHM it is held that consequent upon omission of 1 st , 2 nd and 3 rd proviso to section 35C(2A) of the CEA, 1944 by the FA, 2014 it is to be held that there is no provision for making further application for extension of stay and that the stay order passed by the Tribunal, if it is in force beyond 07.08.2014, it would continue till the disposal of the appeals and there is no need for filing any further applications for extension of orders granting stay either fully or partially – since the stay in the present case was in force beyond 07.08.2014, same would continue till the disposal of the appeal - Applications disposed of: CESTAT [para 2, 3]


CCE & ST Vs M/s Rajesh Malleables Ltd (Dated: January 8, 2015)

Central Excise - Default in payment of duty - Bar of utilization of CENVAT Credit under Rule 8(3A) - No error in the order of Commissioner (Appeals) allowing the appeal in the light of decision by the High Court of Ahmedabad holding Rule 8(3A) unconstitutional - Revenue appeal has no merit. (Para 3&4)


M/s Onida Saka Ltd Vs CCE (Dated: June 3, 2015)

CX - s.4 of CEA, 1944 - Valuation - Period of dispute is June, 1994 to August, 1996 - A manufacturer can always decide to sell his entire production to another person instead of marketing the same himself and incurring expenses on marketing and advertisement himself and for this reason, the manufacturer and his customer cannot be treated as related person - Allegation of undervalution not sustainable - demand set aside - appeals allowed: CESTAT [para 11, 13]



M/s Gujarat State Fertilizers And Chemicals Ltd Vs CCE & ST (Dated: June 12, 2015)

CENVAT - Activities undertaken by the distributors/ consignment stockists of the appellant are purely distribution/ sales and have no element of sales promotion and, therefore, CENVAT credit taken with respect to commission paid to such distributors/ consignment stockists is not admissible - Credit taken to be reversed along with interest, however penalty set aside as the issue was disputable at the material time: CESTAT [para 6, 7, 8]



M/s Aditya Laminators Pvt Ltd Vs CCE, C & ST (Dated: April 17, 2015)

CENVAT - Allegation that the appellant had availed cenvat credit on the basis of invoices issued by the non-existent allegedly registered manufacturers/dealers - Range Superintendent of the appellant company had defaced some of the invoices and allowed Modvat Credit at the initial stage as required under the law - it is evident that

the appellant had no knowledge that the input suppliers were not registered with the Central Excise Authorities - appellant during the investigation, categorically stated that they received the goods accompanied with Central Excise invoice and duty recorded in Cenvat Register - It is further evident from record that inputs were utilized in the finished goods, cleared on payment of duty - There is no material available that the appellant was party to the fraud - demand hit by limitation - appeals allowed: CESTAT [para 8, 9, 12]


Sarla Performance Fibers Ltd Vs CCE, C & ST (Dated: February 24, 2015)

CX - Assessee, 100% EOU received duty free imported and indigenous raw materials for use in manufacture of exported goods - Assessee discharged CE duty on goods cleared to the local market, an amount equal to customs duty and therefore, separate demand of custom duty on raw materials would not sustain - Tribunal consistently, viewed in a series of decisions that in case of 100% EOU, CE duty paid on finished goods, demand of custom duty on raw material and penalty under Custom Act cannot be sustained - Central Excise Officers detained seized goods, which was attempted to divert in local market - Confiscation of goods is justified and accordingly imposition of redemption fine is warranted - Impugned order is modified in so far as demand of CE duty of Rs. 1,65,007/- and customs duties of Rs. 10,05,353,59/- on raw materials are set aside: CESTAT


Decora Tubes Ltd Vs CCE & ST (Dated: May 5, 2015)

CX -Penalty -Rule 26 of CER -Even if the Commissioner could not adjudicate the question of duty demand against the company in view of the liquidation order of the High Court, in our view, the Commissioner could always adjudicate the question of imposition of penalty on the co -noticees: CESTAT [para 7]



M/s Zydus Atlanta Healthcare Pvt Ltd Vs CCE (Dated: June 10, 2015)

CX- Rule 5 of CCR - Refund - Catering services, travel and car services are entitled for CENVAT credit as input service, therefore, refund admissible - there is no reason for deviating from such view already taken in respect of the very same assessee and reported as - 2013-TIOL-537-CESTAT-MUM - Assessee appeal allowed: CESTAT [para 5, 6]

CX- Rule 5 of CCR - Refund - Appeal by Revenue on the ground that service tax paid on clearing and forwarding agent services are utilised post clearance of the final products from factory and that the ownership of the goods still vested in the assessees hand and that the place of removal cannot be the port where services are received - this argument will not carry the case of the revenue further as the LB of Tribunal in the case of Honest Biobet Pvt. Ltd. - 2014-TIOL-2286-CESTAT -AHM-LB has held that load port is to be considered as place of removal u/s 4(3)(c)(iii) of CEA, 1944 - services received by assessee at the port of export of goods has to be held as eligible for CENVAT credit under the CCR, 2004 - Revenue appeal is devoid of merits: CESTAT [para 7, 8]


M/s Tata Motors Ltd Vs CCE (Dated: October 24, 2014)

CX - CENVAT - Appellant painted body shells received from Fiat India Automobiles P Ltd. on job work basis under rule 4(5)(a) of CCR, 2004 - after painting, body shells were returned to the principal manufacturer under job work challans without payment of CE duty - finished goods were cleared by FIAT on payment of duty - appellant had availed CENVAT credit of duty paid on inputs such as paints, thinners etc. used in job work - Credit in excess of Rs.38 lakhs denied on ground that appellant is not entitled for credit on inputs used for job worked goods which were cleared without payment of duty; penalties and interest imposed. Held : Issue is no longer res integra as the same has been decided in favour of assessee by LB of Tribunal in case of Sterlite Industries - 2005-TIOL-305-CESTAT -MUM-LB - appellant is entitled to avail credit - Orders set aside and appeal allowed with consequential relief: CESTAT [para 5]


Tvs Electronics Vs CCE (Dated: March 18, 2015)

Central Excise - CENVAT credit - appellants are manufacturers of Retail Computer Systems, DOT Matrix Printers - they availed credit on inputs used in the manufacture of Retail Computer system when the same were chargeable to excise duty - Subsequently, the computers were exempted from excise duty vide Notification No.23/2004-CE dt. 9.7.2004 - However, on the date of exemption, appellant had certain inputs lying in stock on which the credit was taken much before the date of exemption - Demand for recovery of corresponding credit adjudicated with interest and penalty; relief from penalty granted by first appellate authority; and primary demands agitated herein.

Held: During the material period there is no specific provision in CCR for recovery of cenvat credit on the inputs lying in stock when the final product became exempted subsequently - from 1.3.2007 sub-rule (3) of Rule 11 of CCR was inserted making specific provision where a manufacture is required to pay amount equal to the cenvat credit taken on inputs lying in stock if the final product became fully exempted - High Court of Madras in the case of Tractor and Farm Equipment Ltd. Vs CCE on identical issue examined the case in detail and distinguished the decisions of both M/s.Albert David Ltd. and M/s.Super Cassettes Industries Ltd. and held in favour of the appellant - Cited TAFE ruling is binding on the Tribunal in terms of the Larger Bench decisions in the case of CCE Vs Kashmir Conductors and in the case of Madura Coats Vs CCE - impugned order set aside. [Para 8, 9, 10]


Prakash Cable Industries Vs CCE (Dated: February 5, 2015)

CX - In facory premises of assessee there was some shortage of finished goods and some goods were found in excess - Assessee has admitted their duty liability and same has been paid alongwith interest and also paid 25% duty as penalty under section 11AC of CEA, 1944 within 30 days of issue of SCN - Impugned order was not required to be passed and proceedings against assessee would be concluded - Confiscation of goods and consequently imposition of redemption fine, penalties are not warranted - Appeals allowed: CESTAT


CCE & ST Vs M/s Park Nonwoven Pvt Ltd (Dated: April 8, 2015)

CX - Fire broke out in factory of assessee wherein the inputs which were used in manufacture were destroyed - It is admitted fact that inputs were in process of manufacture of final goods - Therefore, the provisions of Rule 3(5B) of CCR, 2004 are not applicable - Assessee are not required to reverse Cenvat credit - As such no infirmity in impugned order, same is upheld - Appeal filed by Revenue is dismissed: CESTAT [Para 9, 10, 12]


M/s Celebrity Fashions Ltd Vs CCE (Dated: May 29, 2015)

Central Excise - Refund - Claim for Rs.42 lakh under Rule 5 of Cenvat Credit Rules 2004 rejected by original authority - Commissioner (Appeals) held Rs.33 lakh admissible subject to verification by original authority and Rs.9 lakh inadmissible - Tribunal remanded the disputed 9 lakh to original authority - Meanwhile original authority passed de novo order in respect of Rs.33 lakh, granting refund to the extent of Rs.28 lakh and denying to the extent of Rs.5 lakh; same agitated by Revenue before Commissioner (Appeals) who allowed the departmental appeal, now agitated herein.

Held: It is ordered that the matter shall go back to Commissioner (Appeals) who shall within a month of making the application by assessee fix the time of hearing and expose the range report to assessee for rebuttal; consider entire facts evidence and law, and pass appropriate order [Para 5]


Salsar Ispat Ltd Vs CCE (Dated: May 30, 2015)

CX - Penalty - Rule 26 of CER, 2002 - Penalty imposed of Rs.50,000/- each in the three appeals - Allegation is that the appellant had purchased clandestinely cleared MS Ingots and MS bars from various manufacturers and which fact appellant has admitted - in two of the cases, the suppliers have paid the duty, interest and 25% penalty within 30 days as per section 11A(1A) of CEA, 1944 and in third case part payment was made - appellant seeking setting aside of penalty. Held: Matter is covered by Tribunal's decision in the case of Jay Prakash Agarwal wherein it is held that once the manufacturers have paid duty, interest and 25% 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 cleare d by manufacturer/assessee, the Directors/employees of the manufacturer/assessee company - in respect of two appeals where the matter was settled, penalty not imposable on appellant - however, where the matter was not settled as entire duty was not paid, penalty imposed is in order, also it is not on the higher side - two appeals allowed, and one appeal dismissed: CESTAT [para 4.2, 5]


M/s Ricela Health Foods Ltd Vs CCE (Dated: May 14, 2015)

CX - Whether fatty acids, wax and gum emerging as by-products during the refining of crude vegetable oil are “waste” & entitled for the benefit of Nil rate of duty in terms of notification 89/95-CE - conflicting judgments, hence matter referred to Larger Bench: CESTAT [para 6, 7, 8]



M/s Nova Industries Pvt Ltd Vs CCE (Dated: March 30, 2015)

Central Excise - Small scale exemption - Clubbing of clearance and demand of duty on account of clandestine removals - Appellant challenge the Order in Original confirming duty demand with penalties.

Held: Clubbing of clearances - Both the units are private limited and registered with the Registrar of companies and both the units are having their units separately located with a distance in some industrial area but there is no common gate for both the companies. Further, both the companies are registered with Income-tax Department, Sales-tax Department, Central Excise Department, Director of industries, etc. as separate units. - Both the companies are having different brand names of their product such as NOVA /DSA. The units are having their own separate machinery having manufacturing the goods and same have been cleared on payment of duty by availing SSI exemption of both the units separately. The only allegation is that sometimes, salary of one of the employees was paid by the other firm or they are managed by one person. Moreover, the dealers get the commission on the combined sales of both the companies. These things cannot constitute that there was a mutuality of interest and therefore, clearances of one unit cannot be clubbed with the clearance of other unit. (para 16)

The activity of the appellants were in the knowledge of the department as they were registered with the Central Excise Department and units are located in the same range, therefore, extended period of limitation is also not invokable for clubbing the clearance of the two units. (para 23)

Clandestine clearances - No incriminating documents recovered from the custody of the appellant or Managing Director thereof. On the basis of the investigation conducted, the matter was referred to the Income-tax department also and the Income-tax Department after further investigating the case found that the some parties are manufacturing the duplicate goods and some employees of the appellant were in league with the parties who are manufacturing duplicate goods. On the basis of that investigation, the case booked by the Income-tax Department has been dropped. Further, the case does not meet the test laid down by this Tribunal in the case of Arya Fibres Pvt. Ltd. Vs. CC Ahmedabad-II r 2014-TIOL-15-CESTAT-AHM to sustain the demand of clandestine removals - Demand set aside. (para 27)


M/s National Engineering Industries Ltd Vs CCE (Dated: July 6, 2015)

CX - Appellant cannot be denied Cenvat Credit on the ground that Head Office is not registered as Input Service distributor – Tribunal decisions in Demosha Chemicals 2014-TIOL-534-CESTAT -AHM & Doshion Ltd. 2013-TIOL-395-CESTAT -AHM followed - appellant has correctly taken Cenvat Credit on the services namely Selling Commission, Royalty, Consultancy & Professional, Banking Charges, Audit Fee, AMC Charges, etc. - Appeal allowed with consequential relief: CESTAT [para 9]


CCE & ST Vs M/s Reliance Industries Ltd (Dated: April 13, 2015)

CX - Commissioner(A) granting interest from the date being 3 months from the date of application made for refund - Revenue in appeal contending that interest is payable u/s 11B r/w 11BB of CEA, 1944, 3 months after the date of the appellate order. Held:

Issue is no longer res integra - Apex Court in the case of Ranbaxy Laboratories has held that the assessee is entitled to interest on refund from the date on which the three months end from the date of application - Revenue appeals dismissed: CESTAT [para 4, 5]


Kyungshin Industrial Motherson Ltd Vs CCE (Dated: March 13, 2015)

Central Excise - CENVAT credit - admissibility of service tax paid on outward freight (GTA) on FOR sale as input service credit is under dispute - denied by Commissioner (Appeals) on the ground that appellants have failed to produce any documentary evidence to the effect that terms of sale is on F.O.R Destination; agitated herein.

Held: The terms of supply is inclusive of freight, loading, unloading etc. and upto the point of destination and terms of the delivery is F.O.R. destination and the unit price is inclusive of freight and other charges - Tribunal in the case of Ultra Tech Cement decided the very same issue and held that credit is entitled on GTA outward transport service where the goods are sold on FOR basis - following the ratio of the same, held that the appellants are eligible for credit on GTA outward transport service as it is evident from the above that the sale is on FOR Destination basis - impugned order is set aside [Para 5]


M/s Supreme Automech (India) Pvt Ltd Vs CCE (Dated: May 27, 2015)

Central Excise - Refund of unutilized credit - Rule 5 of CCR 2004 - Denied in adjudication - same upheld by Commissioner (Appeals) and agitated herein.

Held: When there was plea that accumulated credits were not possible to be utilised, it should have been examined by the Commissioner (Appeals) - He has failed to do so inasmuch as there is no enquiry to ascertain whether the finished goods of the appellant was input of the EOU and such input consumed to manufacture final goods - There was also no enquiry to suggest that the finished goods of the appellant were unsuitable for use in manufacture by the EOU, nor to satisfy that the user EOU has not earned foreign exchange - Gujarat High Court in the NBM Industries case held that the input used in the manufacture of goods cleared by DTA unit to 100% EOU entitles the DTA to the refund of the CENVAT credit accumulated but not possible to be utilized. [Para 1, 2]


M/s Nirma Ltd Vs CC & CE (Dated: March 18, 2015) CX - MODAVAT/CENVAT - Claim of assessee was rejected on the ground that Rule 57E of erstwhile CER, 1944 has put a bar for availing MODVAT Credit on account of fraud, collusion, or any willful mis -statement or contravention of any rules - Settlement Commission has given a categorical finding on bonafide of assessee - No material available on malafide or mis-statement of fraud, on the part of assessee - Hence, claim of assessee cannot be barred under Rule 57E of erstwhile Rules - Assessee contends that they paid the amount of CVD as detailed in Annexure - Said annexures were rejected on ground that said documents were unsigned - Matter remanded to examine the claim of payment of CVD by assessee: CESTAT


CCE Vs Kothari Sugars And Chemicals Ltd (Dated: June 8, 2015) Central Excise - CENVAT credit - input credit on furnace oil used in generation of steam whichis in turn used in the manufacture of electricity, denied in adjudication; demand for its recovery confirmed with penalty - Commissioner (Appeals) set aside the demands in terms of the Sudarshanam Spinning Mills decision, and is agitated by Revenue herein.

Held: Tribunal's decision in the case of CCE Vs Sudarshanam Spinning Mills was challenged by Revenue before the Madras High Court, in C.M.A.No.1636/2005 - The High Court by its order dt. 4.8.2011 dismissed the CMA filed by Revenue upholding Tribunal's decision on the issue and the issue has attained finality - the judgment of jurisdictional High Court is binding; respondents are eligible for cenvat credit on furnace oil; and there is no infirmity in the order of the lower authority which is upheld. [Para 4]


Coromandel Fertilizers Ltd Vs CCE (Dated: June 10, 2015) Central Excise - CENVAT credit - appellants are manufacturers of fertilizers which are fully exempted - During the course of manufacture of fertilizer, a bye -product viz. Phospho Gypsum emerged and it was cleared on payment of duty - ‘Amounts' of 8% & 10% of the value of exempted goods demanded under Rule 6(3)(b) of Cenvat Credit Rules 2004 with equal penalty imposed under Rule 15 (2)ibidem; agitated herein.

Held: The adjudicating authority held that input services availed by the appellants were used exclusively in the manufacture of exempted goods i.e. fertilizer - They submitted application before Commissioner of Central Excise immediately after retrospective amendment under Section 73(2) of Finance Act 2010 - Sub-Section (3) stipulates that Commissioner of Central Excise shall examine the application and verify the correctness of the amount paid within a period of 2 months from the date of receipt of application or demand the differential amount, if the amount paid is less than payable - evident from the records that same adjudicating authority recorded that appellant had not obtained an order from the Commissioner in terms of Section 73(3) - the adjudicating authority and the authority to decide the application being the same person, ought to have considered their application before deciding the SCN - appellants have complied with entire reversal of cenvat credit along with interest - the impugned order is set aside and the appeal is remanded to the Commissioner of Central Excise with a direction to consider the application filed under Sec 73(2) of the Finance Act 2010 and the records already submitted and decide the issue on merits [Para 5]


Godrej Saralee Ltd Vs CCE (Dated: March 17, 2015) Central Excise - CENVAT credit - The issue in this appeal relates to denial of cenvat credit availed by the appellant as a recipient on the Goods Transport Agency Services against the input credit distributed by their registered office as ISD - demand for recovery of credit with interest and penalty adjudicated and agitated herein.

Held: The adjudicating authority has denied the credit solely on the ground that their registered office is not authorized to pay service tax on GTA after taking centralized registration at Mumbai - he has discussed only on the provisions of centralized registration and held that service tax paid by the corporate office is not eligible as cenvat credit availed by the appellant - no dispute on the fact that appellant's

registered office at Mumbai obtained centralized registration for discharge of service tax on various services including GTA services; and that the registered office is also registered as ISD - Tribunal in the case of Rohit Surfactants, has discussed the identical issue and held that the availment of cenvat credit by the respondent was allowed where even the centralized registration was rejected by the department - Number of decisions pronounced by judicial forums holding that admissibility of credit cannot be questioned at recipient end - impugned order set aside [Para 5]


MGM Industries Vs CCE (Dated: March 19, 2015) CX - Classification - Appellant is manufacturer of control panes which are exclusively manufactured for General Electric and can be put ot use for X-ray machines and the application is exclusive - Both, Revenue and appellant agree that the goods are covered under heading 9022.10 but the dispute is relating to rate of duty, whether the goods can be considered as ‘parts and accessories' entitled for nil rate of duty under notification 26/2002-CE. Held: Typically in a medical X-ray machine, there are a number of independent apparatus which are put together and work as a system - it is somewhat similar to a case of computer, which may have a monitor, CPU, keyboard and printer, all of which are independent apparatus and work together - Parts and accessories are separately listed in the HSN Explanatory Notes and x-ray control panels and desks are not considered as parts and accessories - Keeping in view the details given in the Explanatory Notes as also the scheme of X-ray system it is held that the control panels are "apparatus" in themselves and cannot be considered as "parts or accessories" - Undoubtedly, these apparatus are based on the use of X-ray and are for medical purpose - These would be classified under Heading 9022.10, but since these are not ‘parts or accessories', the same will not be entitled to the benefit of nil rate of duty - Appeals dismissed: CESTAT [para 6, 6.2, 7]


CCE Vs M/s Pleasant Foods (P) Ltd (Dated: May 19, 2015) Central Excise - Assessment - The short issue is whether duty on the sugar confectionery Nestle Eclairs and Nestle Milk Bar Eclairs manufactured and cleared in pet jars and poly packs are to be assessed under Section 4 or under Section 4A - Revenue agitates the impugned order assessing the goods under Section 4 of the Central Excise Act 1944.

Held : Supreme Court in the case of Central Excise, Rajkot, Gujarat Vs Makson Confectionery Pvt. Ltd. dismissed all the civil appeals filed by the Revenue, holding that the impugned goods identical to those in the instant case would qualify for exemption under Rule 34 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and will not attract assessment under Section 4A of the Central Excise Act, 1944 - Apex Court ruling was relied upon by the Bangalore bench of the Tribunal in Sampre Nutrition Ltd. Vs Commissioner of Customs & Central Excise (Appeals), Hyderabad - Commissioner in his impugned order has rightly dropped the proceedings by relying on the Tribunal's order dated 25.01.2006 which now stands upheld by the Apex Court - no infirmity in the impugned order which is upheld [Para 6, 7]


CCE Vs Hindustan Petroleum Corporation Ltd (Dated: May 08, 2015) Central Excise –CENVAT credit - short question in this appeal is whether CENVAT

credit not reversed by the principal manufacturer in respect of the inputs sent to the job worker and the latter not taken credit thereof shall entitle the principal manufacturer to the refund of any amount paid at a subsequent date without reversing the CENVAT credit on the date of dispatch of the input to the job worker.

Held: Law prescribed reversal of CENVAT credit by principal manufacturer when the goods are sent to job wo rker – Having failing to do so, the appellant is required to reverse the same (already done) and deposit the penalty of Rs.5,000/- imposed by adjudicating authority – same stands confirmed [Para 2, 3]

Without reversal when the appellant has enjoyed the CENVAT credit it is liable to interest thereon till payment by challan - due to confusion of the position of law, there was no reversal and subsequent payment was made; therefore, neither appellant will ask any interest nor the respondent shall ask any interest from Revenue - Respondent is entitled to the refund of the amount of Rs.10,79,018/- deposited by it without interest in the peculiar facts and circumstances of the case – impugned order modified accordingly - this order shall not be a precedent since this has been passed on the given facts and circumstances of the case. [Para 4, 5, 6]


Rajesh Gupta Vs CCE (Dated: June 08, 2015) CX - Whether bricks manufactured by assessee are fly ash bricks, as contended by Department or are sand lime bricks, as claimed by assessee - In invoices issued by assessee, bricks are described as "sand lime, fly ash bricks" and assessee, for manufacture of said bricks use 50% of wets pond ash and remaining quantity is of lime and sand the lime being about 20% and sand being about 30% - No test has been carried out to ascertain as to whether the bricks conform to ISI standards for fly ash bricks or whether the same conform to ISI Standard for sand lime bricks - In absence of such test, it would not be correct to say that bricks in question, are fly ash bricks covered by heading 6815 - In terms of Ministry of Environment notfn, assessee were required to use at least 25% fly ash - Though, admittedly weight of fly ash used in form of pond ash is 50% and admittedly, pond ash contains moisture and, total weight of ash being used in manufacture of bricks would be much less than 50% and as such, it cannot be said that fly ash is pre -dominant constituent - Even if bricks are treated as sand lime bricks, w.e.f, 1/3/11, same were no longer fully exempt from duty and attracted 1% duty and admittedly the total duty liability is Rs. 3.10 lakhs - Assessee is directed to deposit an amount of Rs. 3,10,000/-: CESTAT


Padmavati Tubes Vs CCE (Dated: June 25, 2015) CX - ROM application has been filed by assessee on ground that issue of admissibility of credit on raw materials and also eligibility of exemption under Notfn 7/97-CE has not been deliberated by Tribunal - So far as admissibility of cenvat credit on raw materials used in manufacture of finished goods is concerned, same is required to be examined with respect to duty paying documents and private/statutary records maintained by assessee to the effect that such inputs are received in factory premises and used - Issue of eligibility under Notfn 7/97-CE has also not been raised by assessee before lower authorities and has to be examined by Adjudicating Authority based on satisfaction of conditions specified in exemption Notfn - So far as benefit of cum-duty benefit is concerned, this aspect is also required to be examined by Adjudicating Authority after deciding extent of admissibility of Credit on raw materials and exemption under said notfn - Option of granting 25% of reduced penalty under Section 11AC of CEA, 1944 will also depend upon amount of short levy, if any, quantified by Adjudicating Authority: CESTAT


M/s New Allenberry Works Vs CCE (Dated: February 04, 2015)

CX - M/s. NAW sent goods for job work to M/s. Sadhu Forgings Ltd and received back after completion of job work - Defective goods were returned to M/s. Sadhu Forgings Ltd. through invoice on which duty has been paid - On receipt of said goods M/s. Sadhu Forgings Ltd. took Cenvat Credit on duty paid by M/s. NAW - All the details required under Rule 11(2) of CER, 2002 has been fulfilled - M/s. NAW has shown purchase returns - Said information was not required to be shown in invoice as per Rule 11(2) - M/s. Sadhu Forgings Ltd. has correctly availed Cenvat Credit as there is no dispute regarding payment of duty by M/s. NAW on these goods and M/s. Sadhu Forgings Ltd. has cleared goods on payment of duty after removing defects - As appellants have not contravened the provisions of Rule 11(2) therefore, penalty on all appellants are not imposable - Order set aside and appeal allowed: CESTAT [Para 8, 9]


M/s Mittal Pigments Pvt Ltd Vs CCE (Dated: March 02, 2015)

CX - CENVAT Credit on inputs which has lost during process of manufa cturing at the end of job worker - As per process of manufacturing, whatever input have sent to job worker for manufacturing, definitely the assessee will not receive full quantity of inputs converted into final goods - If whole of inputs have been used for manufacturing and there is a process loss, same is required to be allowed - Revenue has not contraverted, this contention with any supporting evidence that in process of manufacturing of goods, there is no manufacturing loss and also have not obtained any expert opinion - Assessee is entitled to take CENVAT Credit on inputs which has gone for manufacturing at end of job worker: CESTAT


Meegora Steels Pvt Ltd Vs CCE (Dated: June 02, 2015)

CX - Maintainability - s.35F of the CEA, 1944 - Pre -deposit - appellant filed appeals without depositing 7.5% of the duty or penalty amount - appellant submitting that they have no money to deposit the said amount and that the appeals should be heard without any pre -deposit. Held: Tribunal is a creature of Customs, Excise & Service Tax Acts and cannot go beyond the provisions of the same - s.35F clearly provides for deposit of 7.5% and does not give any discretionary powers to waive the same - Appeals not maintainable: CESTAT [para 4.2]


M/s Amba Poly Crome (P) Ltd Vs CCE (Dated: May 22, 2015)

CX - Limitation - If assessee has taken cenvat credit wrongly, it means that he have taken cenvat credit by mistake not with intention to take inadmissible cenvat credit - SCN itself is alleging that assessee has taken cenvat credit wrongly and same has been supported by earlier audit - When facts of wrong availment of credit was pointed out to assessee, they reversed excess cenvat credit availed by them - Extended period of limitation is not invokable - Penalty under Rule 15 of CCR, 2004 read with Section 11 AC of CEA, 1944 is not imposable: CESTAT


M/s G S Alloy Castings Ltd Vs CCE (Dated: July 28, 2015)

Central Excise - Allegation of CENVAT Credit taken without receipt of inputs - in the case of clandestine allegation, the onus to establish the same is on the Revenue, which is required to be satisfied by production of sufficient, tangible and positive evidence . The uncorroborated statements of third party cannot be adopted as an evidence, without corroboration from an independent source though such statements can be of some value but cannot be solely relied upon for the purpose of holding against the assessee.

Revenue has not bothered to make any investigation from the transporters even though their names were available in the respective invoices. They have not found out whether the vehicles number mentioned in the invoice, have been actually used for the transportation of the goods or not.

Revenue is silent on the issue that if the appellant has not received the materials in question, how have they manufactured the corresponding final products. It is not the Revenue's case that they have procured the raw material from any other alternative source. It is not only impractical but impossible to manufacture the final product without raw material in question. The appellants having reflected the raw material in their Cenvat credit account and having shown the utilization of the same, heavy duty stands cast on the Revenue to establish that such raw material was not the one which was covered by invoice in question and stands procured by the assessee from any other source. There is neither any allegation much less any evidence to reflect upon the procurement of raw material from any outside source.



M/s Finolex Cables Ltd Vs CCE (Dated: July 14, 2015)

CX - CENVAT - Rule 2(l) of CCR, 2004 - Whether appellant is entitled to take CENVAT on Rent-a-cab services for transportation of workers from residence to factory - issue is no longer res integra - in the case of Innovasynth Technologies (I) Ltd. - 2014-TIOL-2440-CESTAT-MUM it is held that Rent-a-cab service is an input service - credit admissible -appeal allowed with consequential benefits: CESTAT [para 2]


Jsw Steel (Salav) Ltd Vs CCE (Dated: June 08, 2015)

CX - Applicant seeking extension of stay on the ground that their appeal has not come up for disposal for no fault of theirs. Held: In the case of Venketeshwara Filaments Pvt. Ltd. - 2014-TIOL-2388-CESTAT-AHM it is held that consequent upon omission of 1 st , 2 nd and 3 rd proviso to section 35C(2A) of the CEA, 1944 by the FA, 2014 it is to be held that there is no provision for making further application for extension of stay and that the stay order passed by the Tribunal, if it is in force beyond 07.08.2014, it would continue till the disposal of the appeals and there is no need for filing any further applications for extension of orders granting stay either fully or partially - since the stay in the present case was in force beyond 07.08.2014, same would continue till the disposal of the appeal - Application disposed of: CESTAT [para 2, 3]


M/s Mukand Ltd Vs CCE (Dated: October 29, 2014)

CX - CENVAT - Rule 2(l) of CCR, 2004 - Within factory premises, appellant maintaining canteen as per statutory requirement u/s 46 of the Factories Act since there are about 1000 employees - appellant is availing services of an agency to supply required manpower/labour to enable them to run the canteen - ST paid on Manpower supply is availed as credit by them - as there is no Outdoor Catering service availed, there is no requirement of proportionate disallowance of credit - moreover, there is no recovery of any element of ST from the employees - Credit admissible: CESTAT [para 4]

Gardening expenses - ST paid on the same is fully allowable as credit since the said service is required for maintaining the good atmosphere in the manufacturing area and is also a condition precedent laid down by the State Pollution Control Board without which the appellant cannot resort to manufacturing activity: CESTAT [para 4.1]

Cleaning expenses - Expenses incurred for maintenance of residential colony which forms part of the factory premises as per the ground plan approved by the CE authorities - there is no municipality in the area where the factory is located for providing the services of township maintenance - colony is a small industrial township and is required to be maintained by the Industry itself - disallowance of ST paid on cleaning expenses set aside: CESTAT [para 4.2]

Vehicle hiring charges - no allegation in SCN to disallow any proportionate amount towards the amount recovered in part from employees - disallowance held unsustainable & hence order set aside to that extent: CESTAT [para 4.3]

Repair and maintenance of residential colony and maintenance of sports club/grounds - ST disallowed - as appellant has not pressed for the same, order upheld to the said extent: CESTAT [para 5]


M/s Ginni Non Woven Pvt Ltd Vs CCE & ST (Dated: June 04, 2015)

CX - Assessee company is a person registered under Rule 12 B of CER, 2002 - During the period of dispute, fabrics got processed on job work basis and were exported by assessee directly from job worker's premises without payment of duty under Rule 19 of Rules - Whether in terms of sub-rule (2) of Rule 12 B, assessee company was liable to pay duty in respect of these goods - Since, there is no dispute that necessary conditions for export under bond without payment of duty under Rule 19 have been satisfied and prescribed procedure had been followed, Department's stand that duty would be chargeable on clearance made by assessee for export from job worker's premises is not correct - At the time of officers' visit to factory, RG-I register was sent to Head Office for computerization and when it was produced, same had been updated - Imposition of fine of Rs.50,000/- is reduced to Rs.10,000/- - Duty demand against assessee company along with interest and equal amount of penalty and also penalty of Rs.50,000/- imposed on Director under Rule 26 of Rules is set aside: CESTAT


SPL Ltd Vs CCE (Dated: May 28, 2015)

CX - Once the Tribunal's judgment was affirmed by the Apex Court by dismissal of Civil Appeal, the Tribunal's order merges with the Apex Court order and the same becomes a binding precedent, whose non-consideration would be a mistake apparent from record – ROM allowed: CESTAT [para 8, 9, 10]



Annu Industries Vs CCE & C (Dated: May 5, 2015)

CX - CENVAT - Appellant availed inadmissible credit of Rs.2.55 lakhs of Basic Customs duty and Education cesses on imported machinery although such duties are not specified for availing credit under the CCR - also credit availed of Rs.25,192/- on Steel Purlins, Profile sheets, which are not capital goods within the meaning of rule 2(a) of CCR, 2004 - Incorrectly availed CENVAT credit of Rs.2,80,525/- was immediately paid by appellant on being pointed out by department and before issuance of SCN - Credit disallowed & interest demanded of Rs.65,707/- and equivalent penalty imposed - appeal to CESTAT against interest/penalty. Held: As per apex court decision in Ind-Swift Laboratories - 2011-TIOL-21-SC-CX , interest is chargeable right from the date of availing inadmissible CENVAT credit in the account and not from the date of utilisation - interest correctly demanded and confirmed - as regards penalty, appellant has taken credit inadvertently and paid this amount without any contest and, therefore, malafides cannot be attributed - fit case for waiver of penalty imposed u/s 11AC of CEA, 1944 - Appeal partly allowed: CESTAT [para 4]


Mahindra & Mahindra Ltd Vs CCE (Dated: July 16, 2015)

CX - There is nothing in the CCR that before switching over to rule 6(2) a manufacturer is required to reverse the credit of inputs available in its stores, work in progress and in the finished goods on that date - in the absence of such prohibition, demand of amount u/r 6(3)(b) till 24.9.2004 i.e. the date when assessee reversed the credit attributable does not sustain - Appeal allowed: CESTAT



Kulkarni Engineering Industries Vs CCE (Dated: June 09, 2015)

CX - Applicant seeking extension of stay on the ground that their appeal has not come up for disposal for no fault of theirs. Held: In the case of Venketeshwara Filaments Pvt. Ltd. 2014-TIOL-2388-CESTAT-AHM it is held that consequent upon omission of 1 st , 2 nd and 3 rd proviso to section 35C(2A) of the CEA, 1944 by the FA, 2014 it is to be held that there is no provision for making further application for extension of stay and that the stay order passed by the Tribunal, if it is in force beyond 07.08.2014, it would continue till the disposal of the appeals and there is no need for filing any further applications for extension of orders granting stay either fully or partially – since the stay in the present case was in force beyond 07.08.2014, same would continue till the disposal of the appeal - Application disposed of: CESTAT [para 2, 3]


M/s India Glycols Ltd Vs CCE (Dated: May 18, 2015)

CX - De-natured rectified spirit manufactured and cleared by Gorakhpur Unit to Kashipur Unit of same assessee company for its captive consumption - No dispute that assessable value of de-natured rectified spirit was to be determined on basis of 110% of cost of production under Rule 8 of Central Excise Valuation Rules, 2000 - Dispute is only about application of CAS Format and its guidelines for calculation of cost - There are considerable expenses each year on utilities which in terms of para 5.9 of CS Format guidelines are to be treated as variable over heads and cost of variable over heads is to be absorbed in costing based on actual captive utilization while this is cost of utilities have been absorbed by assessee on the basis of normal capacity utilization which prima facie is not correct and on this point, department has a case - Duty demand based on absorption of cost of utilities in costing may be upheld - Assessee, therefore, are directed to deposit an amount of Rs. 50 lakh: CESTAT


Fenner (India) Ltd Vs CCE & ST (Dated: May 25, 2015)

Central Excise - Refund - while finalizing the provisional assessment for the period 1.4.2006 to 31.3.2009, original authority partly sanctioned the refund and partly rejected the refund being excess duty paid in respect of discount passed through invoices or by way of credit notes - portion of refund rejected upheld by Commissioner (Appeals) and agitated herein.

Held: Appellants requested for finalization of provisional assessment and for valuation on various discounts on stock transfer of goods from their factory/dealers - The adjudicating authority while finalizing the provisional assessment for each year ranging from 2006 to March 2009 partly sanctioned refund being excess duty paid at factory on account of discount passed through depot/branch invoices and also rejected the amount as it failed the test of unjust enrichment clause - The Commissioner (Appeals) also held that said refund claims were hit by bar of unjust enrichment in terms of the Tribunal ruling in the appellant's own case -impugned claims are hit by bar of unjust enrichment; rejection of refund is valid and the impugned order is upheld. [Para 6]


CCE Vs M/s Kent Ceramic Tiles And Co Pvt Ltd (Dated: April 27, 2015)

Central Excise - Classification - Dispute in the instant case pertains to whether the smaller pieces of the particular goods manufactured and affixed to a sheet is ceramic tile, classifiable under CH 6905.10 as claimed by Revenue; or 6807.10 as claimed by the assessee.

Held:Tribunal has rightly interpreted the meaning of the term 'ceramic' used in Chapter 68 and 69 on the context of HSN Note in para 7 & 8 of its decision in the Shon Ceramics case - That is exactly the goods cleared by Respondent and Respondent's products are same as that of Shon Ceramics - Careful reading of para 8 of the decision throws light on characteristics of the goods - The use of the word 'ceramic' itself is not decisive in view of intention of the chapter; hence Tribunal examined the rationale behind classification under Chapter 68 in its decision - It has recorded that the products were made of 80% of the various stones such as quarts, silica and feldspar chips and 20% or less of clay material for binding purposes whereas Chapter 69 and Note 2 thereof applies only to ceramic products - Tribunal found that in absence of evidence to show that the goods were not ceramic goods, the goods shall fall under Chapter 68 instead of 69. [Para 5, 6, 7, 8]

No material from Revenue to show as to whether the goods of respondent were technically tested by any recognized laboratory or national institute to hold that the goods were ceramic - safe to rely on the finding of the Tribunal made in the aforesaid decision for application thereof to the case of the assessee since its goods are similar to that of M/s. Shon Ceramics not opposed by Revenue; Tribunal having examined very carefully the composition of the cubes which are ultimately pasted on kraft paper to give raise to the goods in question - Revenue's appeal fails on merit. [Para 9, 10]


M/s Lotte India Corporation Ltd Vs CCE (Dated: March 13, 2015)

Central Excise - Stay / dispensation of pre deposit - CENVAT credit - short issue involved in this appeal relates to reversal of cenvat credit which is equivalent to proportional credit availed on trading of goods - demand with penalty adjudicated and agitated herein.

Held: appellant is a manufacturing unit; availed the credit distributed by their ISD - Tribunal in Eveready Industries case held that the Commissioner having jurisdiction of the recipient unit has a power to examine the availment of cenvat credit - In view of the Eveready decision and also considering the fact that the lower appellate authority has confirmed only the proportionate credit and not the entire demand under Rule 6(5) on the value, prima facie, appellant do not satisfy the requirement for total waiver of pre -deposit - appellant directed to deposit an amount of Rs. 5,00,000/- (Rupees five lakhs only) within four weeks. [Para 4]


M/s Virgo Aluminium Ltd Vs CCE (Dated: June 24, 2015)

CX - Exemption notification 50/2003-CE - It is only on the date on which the commissioning process has been completed that the plant is in a position to produce the goods of the desired quality and as per its installed capacity and when some production has been made, that plant can be said to have commenced commercial production, as it is at that stage only that the plant is in a position to start commercial production - Adjudicating Authority must examine the Member Secretary, Single Window Clearance Agency, Kala Amb, H.P., who had issued the certificate certifying that the unit had commenced production on 31/03/2010 - Matter remanded: CESTAT



Hindustan National Glass And Industries Ltd Vs CCE (Dated: May 15, 2015)

CX - CENVAT credit - Rule 2(l) of CCR, 2004 - Vehicle Maintenance service, Group Health Insurance Service, Garden Maintenance service and Entertainment service are services clearly covered under the definition of Input Service as they have nexus with the production activity of the appellant's factory - Credit admissible - Appeal allowed: CESTAT [para 4, 5]


Hindustan Antibiotics Ltd Vs CCE (Dated: July 15, 2015)

CX - Valuation - s.11D of CEA, 1944 - Appellant is getting medicines manufactured on loan licence basis from manufacturers which are located in areas where no Excise duty is payable - such medicaments are sold to various government hospitals/dispensaries etc. a t price fixed by NPPA under DPCO - case of Revenue is that NPPA while arriving at the prices takes into account normal excise duty payable on such medicaments and, therefore, appellant is deemed to have collected excise duty from customers and which is recoverable u/s 11D of CEA, 1944. Held: Appellant is only trading in the

goods under dispute - they are selling goods at price fixed by NPPA - further they are purchasing the same goods from the manufacturers at price fixed by NPPA with a discount of 12 to 26.5% - Prices are composite ones and there is no separate indication of excise duty on the invoices either of appellant or loan licencee - position similar to that decided by Tribunal in case of HPCL - Appellant is not the manufacturer of the goods and has not paid any excise duty - they are only trading and working with the profit on the discount extended by the manufacturer on the price fixed by NPPA - there is merit in the submission that if at all there has to be any liability to pay any amount u/s 11D of CEA, 1944, it will be with the manufacturer of the goods and not with appellant - Appeal allowed: CESTAT [para 4, 5]


M/s Filatex India Ltd Vs CCE, C & ST (Dated: March 20, 2015)

CX - Assessee cleared goods under cover of ARE-3 on strength of CT-3 certificates without payment of duty issued by M/s. Enkay Texofood Industries Ltd - Assessee submits that said Company issued CT-3 certificates to assessee following the procedure under Rule 20 of CER, 2002 - Said Company in their letter dated 07.10.2004 had mentioned detail the references of 13 nos. ARE-3 out of which 3 nos. ARE-3 were mentioned in DGCEI letter dated 23.07.2008 - As per Rule, 20 (3) of Rules, said company, 100% EOU admitted the receipt of goods and therefore, responsibility for payment of duty casts upon them - It is clearly evident that said Company had received goods and it was not entered in inbond register - As per Skyron Overseas 2009-TIOL-2414-CESTAT -AHM , duty liability cannot be raised on assessee: CESTAT


CCE Vs M/s A B Sugar Ltd (Dated: January 21, 2015)

CX - Assessees engaged in manufacture of Sugar, Ethyl Alcohol and Fusel Oil - By letter dt.25.09.2003, they informed Superintendent of CE that they would like to set up a distillery unit and final product will be incorporated in registration certificate as soon as the machinery is installed in plant of distillery unit - By letter dt. 15.07.2004, assessee requested for amendment of CE Registration certificate - Adjudicating Authority observed that distillery unit is forward integration for captive use of one of the major by-products of sugar industry i.e . Molasses and both these units belongs to same company and are under same management, unit has same sales tax registration and common Income Tax No. - Assessee is entitled to avail credit from 20.07.2004 when the registration certificate was issued to dis tilliery unit - Assessee would be liable to pay interest for availing 50% of credit prior to registration - It is not clear as to whether assessee had utilized credit prior to registration which is required to be examined by Adjudicating Authority - Case remanded: CESTAT


M/s DSCL Sugar Ajbapur Vs CCE (Dated: May 20, 2015)

CX - During course of manufacture of final products, 'Bagasse' emerged as a by-product, which is used by assessee captively for generation of electricity within factory - Electricity so generated is used in factory for manufacture of final product and part

of generated electricity is sold to outside parties for a consideration - No separate accounts maintained - No rate of duty has been prescribed for "electrical energy" classified under Chapter sub-heading 27160000 in CETA, 1985 - No specific notfn has been issued by Central Government in exempting electrical energy from payment of CE duty - Once cenvat credit has been reversed along with interest, there was no requirement for CE department to proceed further for imposition of penalty, especially by invoking pro visions of Rule 15(2) of Rules - Non-reversal of cenvat credit is not attributable to any fraud, collusion and mis -statement and accordingly, provisions of Rule 15(2) of CCR, 2004 read with Section 11AC of CEA, 1944 cannot be invoked for imposition of penalty on assessee: CESTAT


M/s Zircon Plastics Pvt Ltd Vs CCE (Dated: June 30, 2015)

CX - There has to be an illicit manufacture of goods to indulge in clandestine removals for which extra raw material, extra manpower, transportation of finished goods, cash payments etc. are required to be established with a reasonable degree - In the absence of any corroboration, case of clandestine removal cannot be held as established on the basis of few parallel invoices recovered from a third party: CESTAT [para 5.2, 5.3, 5.4, 6.1]



M/s Indian Oil Corporation Ltd Vs CCE & ST (Dated: June 30, 2015)

CX - Admissibility of CENVAT credit of service tax paid on Study and Designing of Storm Water drainage development - Assessee was under bonafide belief that such CENVAT credit was admissible - Mere failure to pay duty or taking license is not enough to invoke extended period - When CENVAT credit is reflected in periodical returns then extended period can not be invoked - As per Pushp Enterprises - 2011-TIOL-297-CESTAT -DEL , appeal filed by assessee is allowed on time-bar: CESTAT


M/s Rajputana Steel Casting Pvt Ltd Vs CCE & ST (Dated: June 23, 2015)

CX - Assessee is manufacturing Stainless Steel Ingots - It is the case of Revenue that S.S. Articles mentioned in diary maintained by Shri B.D. Patel a re clandestinely manufactured and cleared by main assessee in addition to quantity of S.S. Articles mentioned in statutory records - As per CA's certificate dt.10.10.2007, assessee has been certified to have a monthly production capacity of 225 MT. Approximately, same quantities of S.S. articles have been reflected in monthly returns filed by assessee during relevant period - Without any contrary expert opinion, it is not justified on part of lower authorities to brush aside such a certificate given by Chartered Engineer which is quantitatively comparable to quantities manufactured by assessee and shown in monthly returns - No indication of excess raw materials procured and extra power used - No seizure of clandestinely removed finished goods or seizure of a ny cash from clandestine transactions involved in such suspected clandestine removals - On the basis of few confessional statements, diluted by cross-examination of those witness, cannot be made the basis of clandestine manufacture and clearances of excisable goods and accordingly duty demanded by Revenue is not sustainable - Appeals filed by main assessee to that extent and appeals filed against penalties imposed upon

other assessees, with respect to such duty demanded, are allowed - Grounds taken before this Bench, that such shortage of inputs is negligible and should be ignored, is rejected as not entertainable as the same was not agitated before lower authorities: CESTAT


M/s Veena Processing Mills Ltd Vs CCE (Dated: May 01, 2015)

Central Excise - ACP based duty - short issue involved in this appeal relates to duty demand under compounded levy scheme for the period 1996-97 on the ‘Hot air Stenter' installed by the appellant under Independent Textile Processors with Annual Capacity of Production Determination Rules, 1998 - Duty demand under Rule 96ZQ(5)(i) along with interest and penalty under Rule 96ZQ(5)(ii) of CER, 1944 adjudicated; penalty reduced by Commissioner (Appeals); agitated hereunder.

Held: Issue has been decided in the case of Sanoo Fashion, where the Tribunal relied upon the ruling pronounced by High Court of Madras and allowed the appeal - the lower appellate authority has not considered the Madras High court order and relied upon the Gujarat High Court decision in the case of Ambuja Cements - Both the lower appellate authority and the Tribunal joined by the decision of High Court of Madras order in the case of Beauty Dyers holding that the impugned order was set aside as ultra vires - Following the same, impugned order in the instant case is set aside. [Para 4]


M/s Habasit Lakoka Pvt Ltd Vs CCE (Dated: March 17, 2015) Central Excise - CENVAT credit - Appellants are manufacturers of ‘Transmission & Conveyor Belts', having Unit-I and Unit-II located in the same town and availing cenvat credit on inputs and on capital goods - interest demand on the credit amount availed and reversed on the inputs cleared as such to Unit-I during the material period was raised on Unit-II - recovery of interest with penalty under Rules 14 & 15 of CCR 2004 adjudicated, upheld by Commissioner (Appeals), and agitated herein.

Held: The impugned clearance of inputs amounts to inter-unit transfer of inputs and it is not the case of the department that appellant's Unit-II has utilized the credit - The Principal Bench rulings in the case of Kesarwani Zarda Bhandar and Sona Koyo Steering Systems are squarely applicable to the facts of the present case - High Court of Delhi in the case of Kwality Ice Cream Company also held that demand of interest raised after three years is hit by limitation - appellants are not liable for demand of interest and penalty; impugned order set aside. [Para 6]


Larsen And Toubro Ltd Vs CCE & ST (Dated: May 06, 2015) CX - Assessee had undertaken job work of installation, erection and construction of various plants and machineries of M/s Reliance Petrochemicals Ltd (RPL) at their site, for which raw materials have been provided by M/s RPL - It is found from Adjudication order that assessee had undertaken construction of jetty and to meet with emergent requirement during construction work, they have fabricated temporary structures for said construction activities - That temporary structure for construction of jetty, was

made cut of material supplied by M/s RPL, which was dismantled after work is over and material given back to M/s RPL - According to Revenue, it is like pontoons - Onus lies with Revenue in respect of marketability of product - Marketability cannot be established on basis of mere sale of goods - No material found that structures constructed by assessee for purpose of construction of jetty is commercially known as similar to Pontoons in any manner: CESTAT


Hcl Infosystems Ltd Vs CCE & ST (Dated: May 21, 2015) Central Excise - Stay / dispensation of pre deposit - Exemption - appellant is manufacturer of computers including "Thin Client" - The issue is whether the said "Thin Client" is computer and entitled for concessional rate of duty of excise under notification No.6/2006-CE as applicable for computers - Revenue viewed that the appellant had cleared "thin client" and "software" under the same invoices; duty on software is discharged @8% whereas duty on thin client is discharged @12% - differential duty on the whole value of such thin client including the value of software @16% adv was confirmed by the original authority, upheld by Commissioner (Appeals) and agitated herein.

Held: Prima facie, the appellant has not made out a case for full waiver of pre -deposit - He is directed to make pre-deposit of an amount of Rs. 4,00,000/- (Rupees four lakhs only) within a period of eight weeks [Para 2]


Hindustan Petroleum Corporation Ltd Vs CCE (Dated: June 04, 2015) Central Excise - Valuation - appellants are having warehouse at Coimbatore for storage of petroleum products and discharging central excise duty on the non-duty paid products received from the refinery - duty demand with interest and penalty confirmed on the delivery charges and road freight subsidy charges collected from the customers but not included in the assessable value; same agitated herein.

Held: The Bangalore Bench of the Tribunal, in the case of CCE, VishakapattinamVs. BPCL, IOCL, HPCL dismissed the Revenue appeals and held in favour of the assessee vide Final Order No.387 to 390/2012 dated 7.6.2012 - Further, in the appellant's own case related to Mangalore CE jurisdiction, appeal was allowed by the Tribunal (and upheld by Apex Court) wherein identical circumstances were considered under the material period when administered price mechanism was in vogue and depot was place of removal - Following the same, impugned order in the present case set aside. [Para 3-6]


M/s Sarin Chevli Vs CCE, C & ST (Dated: June 25, 2015)

CX - Assessee has supplied grey fabric to M/s Deepak Processors under CENVAT paid documents - No diversion of fabrics or raw materials dealt by assessee has been seized - Penalty against assessee is not solely based upon his statement because proprietor of M/s Deepak Processors in his statement has also admitted that CENVAT credit was availed on fraudulent documents without receipt of goods - Adjudicating Authority after going through all relying upon documents and statements concluded that M/s Sai Textiles, Surat has issued invoices without physically transacting in goods

and passed on only CENVAT credit to M/s Deepak Processors - No reason to interfere with the same - Appeal rejected:


M/s Suraj Vanaspati Ltd Vs CCE (Dated: February 25, 2015)

CX - MODVAT / CENVAT - Issue is whether the Cenvat Credit lying unutilized as on 22.07.1996 when the Vanaspati Oil was exempted from duty can be utilized for the payment of duty on Vanaspati Oil in the month of May 2004 when the duty was introduced - Calcutta High Court has in Rasoi Ltd. while allowing the petition has held that the petitioner is entitled to invoke such vested right and SLP filed by Revenue was dismissed by apex court - also in the case of Agarwal Industries the Tribunal has held that the accumulated credit would not lapse - appellant has correctly utilized CENVAT credit lying unutilized as on 22.07.1996 - appeal allowed with consequential relief: CESTAT [ para 6, 8, 9]


M/s Shreeji Concast Ltd Vs CCE & ST (Dated: January 05, 2015)

CX - Refund - Assessee engaged in manufacture of MS Ingots and discharged duty liability on basis of Annual Capacity of Production (ACP) provisionally fixed by CCE as 5 MT - It was subsequently re-determined by Tribunal as 4 MT instead of 5 MT - Assessee placed Chartered Accountant certificate to substantiate that duty incidence was not passed to customers - Assessee should be given an opportunity to place said certificate before adjudicating authority to establish that duty was not passed on to customers, in interest of justice - Impugned orders upheld on merits, but, adjudicating authority shall examine said certificate and any other evidence: CESTAT


CCE Vs GGN Spinning Mills Pvt Ltd (Dated: December 19, 2014)

Central Excise - Capital goods - respondents are engaged in the production of cotton yarn; they have removed capital goods to their sister concern on payment of duty on the value adopted by way of depreciation (by Write Down Value Method) @ 25% as per the Income Tax Act - Differential duty demand with interest and penalty adjudicated; Commissioner (Appeals) set aside the same which was agitated by Revenue - Tribunal remanded the matter to original authority to compute depreciation on straight line method in terms of CBEC Circular dated 21.04.1998 - Respondent agitated the Tribunal remand before the High Court who in turn remanded the case to the Tribunal for disposal of appeal on the basis of the relevant circular and legal provisions.

Held:The adjudicating authority has confirmed the differential duty by following the Circular dated 1.7.2002 and adopted the value on the capital goods by following the depreciation as per the Board's circular dated 26.5.1993 - the impugned order set aside the adjudication order on the ground that there is no provision for reversal of credit in the CCR for removal of capital goods which are used and also held that Board's circulars are not applicable as the said circular relates to valuation of second hand machinery and are not applicable to the capital goods and also held that there is revenue-neutrality - the issue of removal of capital goods after use and the reversal of credit thereof on the depreciated value is settled by the Madras High Court in the case of CCE Vs Rohini Mills; same squarely applicable to the present case - Following the

ratio of the Rohini Mills and Navodhaya Plastic Industries rulings, appellants are liable to pay differential duty on the value of capital goods removed to their sister unit by adopting depreciation as per the Board's circular No.643/34/2002 dt. 1.7.2002 read with Circular No.495/16/1993-Cus. dt.26.5.93 - However, considering facts and circumstances, penalty set aside and OIO restored accordingly. [Para 5, 6]


Mr Haresh Goradia Vs CCE (Dated: December 19, 2014)

CX - Fraudulent rebate - Appellants are traders providing fictitious invoices without supply of any goods, brokers operating on commission basis enabling encashment of demand draft and returning the balance amount after deducting commission of 0.25% - It has nowhere been found that the appellants have acquired possession or handled any excisable goods in any manner, rendering the goods liable to confiscation - CCE is in error in imposing Penalty u/r 26 of CER, 2002 - Amount deposited of Rs.20 lakhs during investigation by Shri Hemant Patel, Proprietor of M/s Shreeji Traders to be refunded along with interest within 45 days - Appeals allowed: CESTAT [para 10, 11]



M/s Ketan Plastic Industries Pvt Ltd Vs CCE & ST (Dated: June 10, 2015)

CX - Issue is regarding duty demand on shortage of finished goods found in factory premises of assessee during visit of departmental officers and admissibility of cenvat credit on duty paid on inputs received from 100% EOU - No contrary judgment has been brought on record by the learned AR with respect to non admissibility of cenvat credit of education cess paid during the relevant period - As per Emcure Pharmaceuticals Limited 2008-TIOL-226-CESTAT -MUM , cenvat credit of education cess is admissible to assessee - Amendment to proviso added to Rule 3(7)(a) of CCR, 2004 will have respective effect so that admissible credit is not denied to assessee, accordingly, credit with respect to SAD is admissible - Assessee has paid entire amount of duty/cenvat credit demanded in SCN along with 25% of penalty - In view of cenvat credit allowed with respect to education cess and SAD, amount of remaining cenvat credit disallowed and quantum of 25% penalty is required to be reworked out - Penalty on director of company is reduced: CESTAT


M/s Chiripal Industries Ltd Vs CCE & ST (Dated: May 21, 2015)

CX - National Calamity Contingency Duty (NCCD) on Partially Oriented Yarn (POY) and FDY when used captively in manufacture of goods - When POY is sold as such by assessee, NCCD is paid by assessee at the time of clearance from factory - Issue of leviability of NCCD during captive consumption is no more res integra - By following decision in case of Modern Petrofils Ltd - 2009-TIOL-515-CESTAT -AHM , appeal allowed: CESTAT


M/s Afcons Infrastructure Ltd Vs CCE & ST (Dated: May 29, 2015)

CX - Refund - Assessee engaged in construction of Turbine Building, CCW Plant and Pump Houses as per agreement with Nuclear Power Corporation Limited, a Government of India Enterprises - Assessee received fusion bonded Epoxy Coating of Re-Inforcing Steel Bar from M/s. PSL who paid CE duty and cleared said product to assessee - M/s. PSL informed that assessee had paid CE duty and therefore, they are eligible to get refund of duty under Section 11B of CEA, 1944 - Manufacturer paid the duty under protest - Refund claim was rejected on ground that assessee had not furnished sufficient evidence that incidence of duty was not passed on to their customers - Assessee produced CA's certificate certifying that assessee paid a sum by way of excise duty on products against invoices raised by M/s. PSL and confirmed that no part of duty paid on said products has been reimbursed by customer Nuclear Power Corporation Limited - Genuinety and authenticity of certificate was not doubted by both authorities below - No material available on record to discard CA's certificate - Hence, there is no need to furnish cost of material and pricing of contract - Appeal allowed: CESTAT


M/s Iol Chemicals And Pharmaceuticals Ltd Vs CCE & ST (Dated: April 28, 2015)

CX - Cenvat credit denied on services namely insurance, audit and transportation on the premise that assessee being the job worker and doing work under exemption Notfn 214/86 and cleared the goods without payment of duty to principal manufacturer - Assessee has already reversed Cenvat credit before issuance of SCN - Out of Rs.1,58,775/- assessee has utilized only Rs.48,386/- - As per Strategic Engineering P Ltd. 2014-TIOL-466-HC-MAD-CX , assessee is required to pay interest only on Rs.48,386/- during intervening period - When assessee is not contesting merits of case, penalty is not imposable in light of M/s. Atul Ltd. 2012-TIOL-1384-CESTAT -AHM - Appeal allowed: CESTAT


M/s Mi Telecom Solutions Pvt Ltd Vs CCE (Dated: January 07, 2015)

CX - Assessee besides the manufacture of goods on their own account, they also doing job work for M/s.Acme, who were availing full duty exemption under Notfn 50/2003-CE - From process diagrams in premises of MI Telecom and M/s Acme and photograph of goods which emerge in premises of M/s.MI Telecom and which emerge in premises of M/s. Acme, it appears that goods being cleared by M/s MI Telecom from their premises to M/s. Acme are only incomplete battery management systems, electrical panels, air-cooling systems and line-regulators and complete and finished battery management systems, electrical panels, air-cooling systems and line regulators come into existence only in premises of M/s. Acme - Assessee's plea is that no finding has been given by Commissioner on this point - Impugned order is set aside and matter remanded to Commissioner: CESTAT


Ciron Drugs & Pharmaceuticals Pvt Ltd Vs CCE (Dated: July 15, 2015)

CX - s. 35F of CEA, 1944 - Pre -deposit - appellant had reversed some amounts of CENVAT credit during the years 2009-10 onwards on their own and these are a matter of dispute with reference to the duty demand confirmed of Rs.4.49 crores - they are not amounts re versed during the course of investigation - adjustment of these amounts cannot be examined for maintainability of appeal as it will amount to going

into the merits of the case at stay stage - since appellant had not deposited 7.5% of duty demanded, appeal not maintainable, however, in the interest of justice, time given of two weeks to make deposit and report compliance: CESTAT [para 4, 5, 6]



CCE Vs The Heels (Dated: May 28, 2015)

CX - Manufacture - Assessee, a partnership firm of which Shri Amit Gupta is a partner engaged in trading activity of three types - No dispute in respect of first two types of trading activity - Third type of trading activity is subject matter of dispute, which involves purchasing of footwears in unit containers bearing brand name - Shoes are received in unit containers with brand name declared on containers but without any MRP - Department views that assessee put their MRP sticker on containers themselves - According to assessee, MRP stickers are put on footwear and not on container and from SCN also, it appears that MRP stickers were being put on footwears and not on containers - Commissioner (A) has held that MRP stickers were being put on footwear and not on containers, and therefore, this activity would not amount to manufacture under section 2F (iii) of CEA, 1944 - No dispute that sales turn over of third category of footwear along with sales turn over of footwear bearing assessee's own brand name was within SSI exemption limit - Without going into question as to whether activity of assessee amounted to manufacture or not, it is held that even if it is treated as manufacture, they would be eligible for SSI exemption, there would be no duty demand - Appeal dismissed: CESTAT


SKI Carbon Black (India) Pvt Ltd Vs CCE (Dated: April 27, 2015)

Central Excise - Stay/dispensation of pre deposit - Excisibility - Pollutant emerges as a by-product while using the input Carbon Black Feed Stock in the process of manufacture; same used to generate electricity sold to TNEB - duty demand on the pollutant is agitated herein.

Held: Considering the reasoning given by the Apex court in the case of Union of India Vs Hindustan Zinc Ltd., there shall be waiver of predeposit and stay of recovery of demand in question during pendency of appeal. [Para 5]


CCE, ST & C Vs Sri Sarvaraya Sugars Ltd (Dated: March 3, 2015)

Central Excise - Cenvat credit availed on inputs - Demand to reverse on ground that dutiable products cleared as such - Manufacture of aerated water and clearance in glass bottles - Held, that bottles were cleared after having been used for a number of years as such cannot be considered as clearances - Further more, show-cause notice was issued under CCR 2004 by which time the clearances had already been completed thus proceedings were initiated under non-existing provisions as such cannot be sustained - No infirmity in the order of the Commissioner (A) holding that notice cited no applicable Rule so order in original cannot be sustained - Revenue appeal fails. (Para 5)


M/s Torrent Pharmaceuticals Ltd Vs CCE, C & ST (Dated: June 30, 2015)

CX - Assessee had filed appeals against OIA dated 23/28-01/2004 with CESTAT as well as JS (Review) Government of India - Since on earlier occasion same issue was remanded back by JS(Review) only appeal filed with JS(Review) was persued resulting into dismissal of their appeal before CESTAT, for non-prosecution - In Final Order passed by JS (Review) it was held that appeal in these proceedings lies before CESTAT - Restoration application filed by assessee is allowed: CESTAT


M/s Udaipur Pipes Pvt Ltd Vs CCE (Dated: March 4, 2015)

CX - Assessee engaged in manufacture of ACC pipes AC Couplers and availing exemption under notfn 6/2000-CE, 3/2001-CE and 6/2002-CE which prescribed nil rate of duty for goods of chapter 68 in which not less than 25% by weight of fly ash or phosphogypsum or both have been used, subject to condition specified in said notfn - Assessee in this regard were maintaining records as prescribed in exemption notfn and were also filing a monthly return along with ER -1 returns - Department's case against assessee alleging that they were not using fly ash to extent of at least 25% is based only on statement of some persons - As per Basudev Garg 2013-TIOL-464-HC-DEL-CUS statement given by a person cannot be used against an assessee without giving assessee an opportunity of cross examining the deponent - W hen Department's case is mainly based on statements given by some persons and those statements are not corroborated by some other independent evidence, and contradict each other, for using those statements, against assessee for proving charge of duty evasion against them, their cross examination would be necessary - Impugned order set aside and matter remanded: CESTAT


CCE Vs Free Scale Semiconductors India Pvt Ltd (Dated: June 12, 2015)

CX - Refund - Assessee, a 100% EOU engaged in business of processing of chips, activity which includes circuit designing, testing, validation of such chips, integration of software on chips and support services for its parent company viz., M/s.Free Scale Semiconductors Inc.USA - As per section 65 (19) of FA, 1994, activity undertaken by assessee would come within definition of BAS - Contention of Revenue that activity of processing of chips is a manufacturing process and that it would fall within definition of 'manufacture' under section 2(f) of CEA, 1944 does not find merit at all - No ground to interfere with concurrent findings arrived at by adjudicating authority as well as appellate authority: CESTAT


Hindustan Photo Films Mfg Co Ltd Vs CCE (Dated: March 17, 2015)

Central Excise - CENVAT credit - The short issue in this appeal relates to denial of cenvat credit availed by the appellant on the basis of T.R.6 challan; of CVD paid on Jumbo Rolls of Cinematographic Film purchased from Customs auction/sale; on the

ground that TR6 Challan is not a specified document for availing credit.

Held: The adjudicating authority has not disputed the payment of CVD on the said goods; the credit was denied only on the limited ground that T.R.6 challan is not a valid document - Notification No.16/1994 (CE) clearly provides various documents and certificate issued by various agencies are treated as admissible documents for availing modvat credit under Rule 57G - import of the jumbo rolls by an importer were absolutely confiscated by the Kandla Customs - Once confiscated, it becomes the property of Govt and the Customs authorities have to sell/dispose the same and appellant being the only PSU manufacturing photographic films, it has to be necessarily given to the appellant's unit - no dispute on the sale and the purchase of entire cinematographic film and the appellants paid the amount as per the price arrived by the Customs which is inclusive of CVD - This is supported by a certificate issued by the AC of Customs, Kandla stating that the price of the Jumbo rolls includes CVD duty leviable on the goods-Tribunal ruling in the Hindustan Corporation case relied upon - credit availed by the appellant on the T.R.6 challan which is duly supported by the Customs by a certificate is a valid document for availing credit - impugned order set aside. [Para 4]


Aluminium Powder Co Ltd Vs CC, CE & ST (Dated: April 29, 2015)

Central Excise - CENVAT credit - denial of various input and input services credit in adjudication and demand for recovery of the same with interest and penalty agitated by the parties, and commonly disposed of herein.

Held: In terms of Final Order No.40281-40326/15, dated 25.02.2015, Tribunal has allowed Cenvat credit in respect of both input and input services used in setting up of windmill, generation of power and maintenance as well as operation thereof - Para 2 to 6, 10 of the same being relevant that equally applies to the present appeals. [Para 3, 4]

Normal maintenance and services availed in respect of functioning of windmill are allowed - In view of Para 10 of the FO dated 25.02.2015, credit of service tax paid on rental services is allowed - Revenue has no evidence to the contrary to establish that there is no integral relation between the security services availed to protect the windmill and ensure operation thereof - Cenvat credit on security service is also allowed - Appellant having established the connection of the processing charges paid to the financial institutions to borrow fund for purchase of windmill and machinery, service tax paid on such services is allowed towards Cenvat credit- Workers contribute to the production for which their welfare measure is essential under the Factories Act - no evidence on record to show that policy relates to any other property or contingency - Cenvat credit relating to service tax paid on availing insurance services for workers is allowable [Para 5.2, 7 - 10]

In respect of Outward Transportation of goods, it was established that such services was part of the contract and was inseparable; credit allowed - Blades being affixed to the windmill at a quite high level from the earth, using of service of crane for such purpose cannot be said to be without nexus to maintenance of the windmill - Cenvat credit in respect of service tax paid to avail the services of the crane is allowed [Para 15, 16]

Gear box for windmill being intimately connected with the set up and running of the windmill credit of duty paid thereon is allowable [Para 12]

Cenvat credit on service tax paid to avail passenger carrying package policy is claimed, but no evidence was produced to show that such a policy has any integral

connection either to any output or output services - credit thereon is not allowable - Telephone installed outside factory and used by staff is not backed by any evidence to show that such services were in any way connected with output services or manufacture of the output - credit of service tax paid to avail such service is not allowable - without the connection of the insurance policy to the workplace or workers, the claim of Cenvat credit on service tax paid in respect of insurance service is not allowable - There is a claim of availing club services, which are no way concerned for either manufacture or providing of output services; hence the claim of input credit thereof is not allowed [Para 11, 13, 14, 17]

In view of the difficulty of interpretation of law relating to Cenvat credit involved for long time there shall not be penalty in any of the appeals [Para 18]


CCE Vs Lumax Samlip Industries Ltd (Dated: March 25, 2015)

Central Excise - CENVAT credit - respondent are manufacturers of "Head Lamp Assembly" and Motor vehicle parts - Officers visiting the Unit observed that they availed modvat credit on the capital goods "Injection Moulding Machine" and also claimed depreciation under Section 32 of the Income Tax Act, 1961 in violation of of sub-rule (8) of Rule 57R of Central Excise Rules - demands adjudicated for recovery of ineligible credit, with interest under Rule 57 (4) read with Section 11AB and penalty under Rule 57U (6) read with Section 11AC apart from penalty under Rule 173Q; set aside by Commissioner (Appeals) and agitated by Revenue - Revenue's appeal rejected vide Final order No.1702/2009 dt. 12.11.2009; recalled vide MISC Order dt. 11.11.2003 and taken up for disposal herein.

Held: Respondent had filed T1 declaration under Rule 57T of Central Excise Rules intimating the Department that they intend to avail credit of the duty paid on capital goods - They have filed T2 declaration before A.C Division and declared that they shall not claim depreciation under Section 32 of the Income Tax Act - in their Income Tax return filed before the Income Tax authorities they duly claimed depreciation on the value of capital goods credit, which was duly accepted by the Income Tax department - it is admitted fact that during the relevant period, respondents on the one side availed credit of duty paid on the capital goods and also claimed depreciation under Section 32 of the Income Tax Act. [Para 13]

The deliberate misdeclaration and willful suppression of facts by the respondents was established by the adjudicating authority - undisputed fact that but for the Departmental officers detecting the case it would not have come to notice and this fact was completely ignored by Commissioner (Appeals) and there is merit in the revenue appeal - the impugned order waiving interest and penalty under Section 11AC and restoring the Modvat credit to the respondent w.e.f. 30.6.99 is liable to be set aside and the adjudication order demanding the credit, confirming interest and imposing penalty under Section 11AC is liable to be restored [Para 16]

The CIT(A) order relied upon by the lower appellate authority was tracked - by virtue of Supreme Court's order dt. 6.8.2012 the rectification application under Section 154 stands dismissed and claiming depreciation under Section 32 of IT Act had attained finality - respondents have no legal grounds to enjoy both Modvat credit on capital goods under Central Excise Act and depreciation under Income Tax Act; hence they are not eligible to avail capital goods credit in terms of Rule 57R (8) of Central Excise Rules - Penalty under Sec 11AC and Rule 173Q warranted in terms of the ruling in the Bageshwari Sa hakari Sakhar Karkhana case [Para 18, 20]


M/s Jai Maa Appliances (P) Ltd Vs CCE (Dated: March 12, 2015)

CX - Both the assessees JMAPL and SE are job workers for KEL and they subject the goods received from KEL to certain processes and, thereafter, return the same to KEL - Both assessees and also principal manufacturer KEL are located in area specified under notfn 50/03-CE - In both cases, assessee's claim is that items being cleared by them to KEL are not fully finished goods but have to be subjected to further processing like grinding, spindle pressing and testing - If items being cleared by assessee are in nature of semi finished goods which require further processing by KEL for being used as parts of fans, same cannot be treated as marketable and hence, excise duty would not be chargeable: CESTAT

CX - Limitation - When both JMAPL and SE could have availed full duty exemption under notfn 50/03-CE just by filing declaration and they did not file declaration for availing of this exemption under belief that their activity does not amount to manufacture, no malafide can be attributed to them - Even if there is any duty demand confirmed against assessee, longer limitation under proviso to section 11(i) would not be applicable and for same reason, penalty under section 11AC would not be imposable: CESTAT


Nrb Bearing Ltd Vs CCE (Dated: May 15, 2015)

CX - s.35F, s.35C(2A) of CEA, 1944 - Any stay order passed by the Tribunal, if it is in force beyond 07.08.2014, it would continue till the disposal of the appeal and there is no need for filing any further applications for extension - Tribunal decision in Venketeshwara Filaments - 2014-TIOL-2388-CESTAT -AHM followed - Application allowed: CESTAT [para 2, 3]


Ajay Kumar G Baheti Vs CCE & C (Dated: July 09, 2015)

CX - HR Trimmings sold by appellant in online auction to brokers - Invoices prepared in name of Silver Ispat, Mah. State knowing fully well that the goods were consigned to Viramgam based bidder and are being used by SSI units situated there who do not avail CENVAT credit - Penalty imposable: CESTAT [para 15 to 19]



M/s Apar Industries Ltd Vs CCE & ST (Dated: March 26, 2015)

CX - Assessee were issuing supplementary invoices for goods already cleared and paid proper duty on such supplementary invoices - In case of reduction of price, they have already paid excess duty of Rs.33,51,793.00 - Refund claim was filed on 12.04.2010 which was returned by Range officer on 29.04.2010 as there were no sufficient documents - Assessee again resubmitted the claim on 29.09.2010 with all documents as directed by Range Officer - Assessee by letter dt.21.10.2010 had categorically

requested to withdraw the amount of Rs.6,47,473.00 as they had no documentary evidence and requested to sanction remaining amount of Rs.27,04,323.00 - In certificate dt.22.04.2011, no specific mention of this amount - Hence, both the authorities below has rightly rejected refund claim of Rs.6,47,473.00 - Rejection of refund of Rs.19,26,095.00 as time barred is set aside - Matter remanded: CESTAT


CCE Vs M/s Nirma Ltd (Dated: April 13, 2015)

CX - Assessee cleared the excisable goods to their sister unit/other units on payment of duty as per Rule 9 read with Rule 8 of CEVR, 2000 at 110% of cost of production of goods - No consistency in methods of valuation as claimed by assessee - Adjudicating Authority had elaborately discussed inconsistency of valuation methods - Inconsistency of valuation methods cannot be treated as suppression of fact with intent to evade payment of duty - Assessee informed the Department time to time of variation of price and Department was well aware of method of price as declared by assessee - No suppression of fact with intent to evade payment of duty: CESTAT


Bhagavathymadom Ayurveda Nikethanam Vs CCE, C & ST (Dated: January 1, 2015) Central Excise - Ayurvedic or Cosmetic preparations - Classification - Ingredients of the preparations mentioned in authoritative text books of Ayurveda - Board's Circular No. 25/91 dated 03.10.1991 talks about the twin tests of common parlance test and mentioning of the ingredients in the authoritative books on Ayurveda medicines laid down by the Supreme Court in determining the classification and further clarifies that in doubtful cases of Ayurvedic medicines the Collectors are required to make a reference to the Board seeking clarification from Drug Controller - Chemical Examiner has merely opined on the classification of the product under Chapter 33 and nothing in the report to indicate whether the Chemical Examiner has examined the product from the angle of its ingredients - Copy of the report was not supplied to the appellant - On facts, impugned order set aside - Appeal allowed by way of remand to original authority to adjudicate afresh in accordance with due process of law. (Para 7, 8, 9)


N R Sponge Pvt Ltd Vs CCE & ST (Dated: April 10, 2015) CX - Assessee is manufacturer of sponge iron - It is alleged that assessee clandestinely removed goods - Statement recorded after almost 4 years also does not reveal anything incriminating against assessee - No investigation was conducted at the end of buyers when assessee categorically stated that they are not arranging and only buyers are arranging transport of goods - Demand is not sustainable merely on basis of entries made in transporters register without any corroborative evidence - Revenue failed to produce any corroborative evidence in support of their allegation - Impugned order set aside and appeal allowed: CESTAT [Para 6, 7, 8]


CCE Vs Measurement & Controls India Ltd (Dated: April 24, 2015) CX - Interest - In these appeals, demand of interest confirmed on (a)the differential duty paid subsequently on the price variation raised on supplementary invoices; along with penalty under Rule 25(1) (a) of CER, 2001and (b) interest on the differential duty paid consequent to finalization of the provisional assessments, under Rule 7(4) of CER,2002 are in dispute with relief granted by Commissioner (Appeals) agitated by Revenue herein.

Held: In respect of (a), there is no dispute on the fact that the appellants paid differential duty on the amount of escalation of price and raised supplementary invoices to their customers - On the payment of interest the law is settled by the Supreme Court in the case of CCE Vs. SKF India - ratio of the same is squarely applicable to the facts of the present case and the respondents are liable for payment of interest; the impugned order is liable to be set aside to the extent - However, considering overall facts of the case and also in view of the conflicting decisions of various judicial forms for and against the interest payment till it was settled by the Apex Court, the respondents are not liable for any penalty and the same stands waived - appeal partly allowed [Para 7]

In respect of (b), issue decided by Mumbai HC in the Ispat Industries case and the same upheld by Apex Court - Tribunal also allowed the appeal in the respondent's own case - impugned order upheld and Revenue's appeal rejected [Para 8]


Kawatra Papers Ltd Vs CCE (Dated: March 16, 2015) CX - Clandestine removal - It is alleged that assessee involved in clandestine removal of goods on the basis of certain records and statements of some persons relied upon, which were not allowed to be cross examined remained unproved - Adjudicating authority is not an expert to determine production capacity but an expert from Institute of Paper Technology examined production capacity of assessee and after inspection of factory of assessee and collecting necessary data for production capacity, expert determined the production capacity for working plant during period 1996-97 and 1997-98 - Therefore, without tangible evidence or without being obtaining expert's opinion on issue, said report determining production capacity cannot be rejected by adjudicating authority - Machine log sheets were specifically directed by Tribunal to examine in depth but adjudicating authority rejected those machine log sheets on ground that the same are manipulated and afterthought - Adjudicating authority has not considered any defence taken by assessee in remand proceedings, but pass the order by confirming demand against assessee and imposition of penalty in mechanical manner - Charge of clandestine removal is not sustainable - Appeals allowed: CESTAT


Avon Cycles Ltd Vs CCE & ST (Dated: February 02, 2015) CX - Assessee are manufacturers of E-Bikes which they assembled out of imported components/kits - Some of imported components are also re -packed for sale as spare parts - Commissioner, relying upon verification report of Divisional Officer reporting that E bikes kits for being assembled and parts for being sold as spares, were being imported separately and as such they were not using common inputs for manufacture of E-bikes and spare parts, has held that provisions of rule 11 (3) of CCR, 2004 would be applicable in respect of E-bikes - Assessee is directed to deposit an amount of 10% of cenvat credit demand: CESTAT


CCE & ST Vs Dincotex Pvt Ltd (Dated: April 17, 2015) CX - Deputy Commissioner, CE already adjudicated the SCN dt.06.05.1996 vide OIO dt.14.11.1996 and therefore, confiscation of goods and imposition of redemption fine in respect of seized goods by Adjudicating authority in de-novo adjudication cannot be sustained - Regarding demand of duty along with interest and imposition of penalty by SCN dt.28.01.2000, assessee challenged authenticity and preparation of Panchnama - Assessee contends that demand of duty on basis of diary has no nexus with their factory - Revenue filed this appeal on the ground that by not producing witnesses for cross examination, Panchnama cannot be treated as invalid evidence - As per Basudev Garg 2013-TIOL-464-HC-DEL-CUS , statement against assessee cannot be used without giving them opportunity of cross-examining deponent - Cross-examination is a valuable right of accused/noticee in quasi-judicial proceedings, which can have adverse consequences for them - Appeal rejected: CESTAT


Satya Prakash And Co Vs CCE (Dated: March 16, 2015)

CX - Assessee is manufacturer of branded chewing tobacco and packed the same with help of 2 packing machines during said period - Assessee filed abatement claim on pro-rata basis for period 1.9.11 to 15.9.11 in respect of non operative period of "second machine" - When a manufacturer of Gutka/Pan Masala is manufacturing Gutka/Pan Masala pouches of different RSPs and for a certain period of 15 days or more, he stops production of only one particular RSP, he will not be entitled for abatement, if continues the production or clearances of Pan Masala/Gutka of other RSPs by operating those machines - As per rule 10 of Pan Masala Packing Machine Rules, 2008, there should be complete stoppage of machine which is not in matter in hand - Assessee has not satisfied condition of grant of abatement as production in factory of notified goods was in operation - Therefore, assessee is not entitled for abatement: CESTAT [Para 7, 9, 10]


Shri P K Verma Vs CCE & ST (Dated: November 25, 2014)

CX - Commissioner vide his impugned order has confirmed demand of duty and penalties jointly and severely against M/s. Golden Tobacco Ltd. and M/s. Chinar Cigare ttes Ltd. - It is well settled law that such joint confirmation of duties and joint imposition of penalty cannot be upheld in law - For earlier proceedings against M/s. Golden Tobacco Ltd., such orders passed by Commissioner already stand set aside - As such, by following the same, impugned order set aside and matter remanded to Commissioner for fresh decision - Assessee submits that there are around 10 allegations and they have been provided with relied upon documents relatable to only 4 to 5 allegations - Pinciples of natural justice would be duly complied with by Commissioner - Hoping that Central Board of Excise & Customs (CBEC) takes these matters against M/s Golden Tobacco Ltd. seriously and this time matter is adjudicated strictly in accordance with observations and directions in this order, and as expeditiously as possible: CESTAT


Shri Dinesh Magrupal Vs CCE (Dated: December 12, 2014)

CX - Assessee, 100% EOU supplied raw materials to main noticee under cover of CT3 certificate after observance of procedure prescribed under CER, 2002 - There is no dispute that main noticee received the raw material supplied by assessee - Raw materials received by main noticee, who diverted the goods unlawfully and demand was raised on them - There is no material available on involvement of assessee for alleged diversion of finished goods by main noticee - It is well settled that penalty cannot be imposed merely on basis of assumption and presumption and without any basis - As per Marvel Fashions 2010-TIOL-1826-CESTAT -AHM , penalty imposed on assessee is set aside and appeal allowed: CESTAT [Para 6, 7, 8, 9]


M/s Mahanagar Gas Ltd Vs CCE (Dated: November 21, 2014)

CENVAT -Inputs short received - CENVAT credit cannot be denied of tax paid on Inward Transportation service when the fact is that there is no dispute on account of availment of credit on inputs - Credit rightly availed - appeal allowed: CESTAT [para 6, 7]


CCE Vs M/s Pan Electronics India Ltd (Dated: April 17, 2015)

CX - Penalty - SCN issued demanding reversal of cenvat credit on the inputs LDO allegedly not received in their factory but diverted to their sister unit - demands adjudicated and agitated before Commissioner (Appeals), who remanded it to original authority for verification of related documents about the genuineness of receipts of inputs and admissibility - proposals dropped by original authority agitated by Revenue before Commissioner (Appeals) in the second round of litigation, contending that respondents are liable to reverse the cenvat credit availed on the inputs used in the generation of electricity diverted to other units - Commissioner (Appeals) allowed Revenue's plea and held that duty demand with inte rest is recoverable, but allowed reduced penalty of 25% under Sec 11AC - Revenue agitates impugned order for imposition of equal penalty under Sec 11AC.

Held : Evident that the adjudicating authority has dropped the entire proceedings, it is only on appeal by the Revenue, that Commissioner (Appeals) has restored part of the demand for the first time - Lower Appellate Authority has rightly held that the respondents are eligible for reduced penalty within 30 days; no infirmity in the order which is upheld- facts are supported by the decision of the High Court of Gujarat in the case of Rita Dyeing & Printing Mills - no merit in Revenue's appeal. [Para 6]


M/s Bhoramdeo Sahakari Shakkar Utpadak Karkhana Maryadit Vs CCE (Dated: June 12, 2015)

CX - During disputed period, assessee had availed cenvat credit of Central Excise Duty paid on structural steel items, namely, MS beams, channels, angles, flats, Plates and joist, treating the same as input for manufacture of plant and machinery installed within factory - Documents available in case record prove beyond any shadow of doubt that the fact regarding taking of cenvat credit by assessee on disputed goods were known to the Department - Since SCN has been issued in 2008, covering the period from June, 2002 to January, 2006, and no specific findings have been recorded regarding involvement of assessee in any fraudulent activities concerning fraud, collusion and miss-appropriation with intent to evade payment of duty, proviso to section 11A, cannot be invoked, justifying issuance of SCN, beyond limitation period of one year - Proceedings initiated by Department for recovery of cenvat amount is barred by limitation of time and accordingly, impugned order is set aside and appeal allowed: CESTAT


Kamal Sponge Steel And Power Ltd Vs CCE (Dated: March 23, 2015)

CX - Assessee manufactures M.S.Ingots and from M.S.Ingots, they manufactures M.S.Bar and TMT bars - Allegation of quantity of finished goods found short, and clandestine removal - Duty demand of Rs.9,89,44,328/- based on power consumption and it is clear that demand was quantified by dividing total power consumption during period of dispute by 669.835 - Assumption of department is not correct, as quantity alleged to have cleared during a particular month based on certain seized documents may not have been manufactured during that month and therefore, for purpose of determining power consumption for production of one MT TMT bar/MS bar, this quantity cannot be treated as quantity produced during that month - Neither any experiment has been conducted for ascertaining actual power consumption nor there is any evidence of unaccounted purchase of MS scrap or evidence of clandestine clearance of finished goods - Only evidence of clandestine clearance of finished goods is in form of seized documents including computer printouts and shortage of finished goods and duty involved in respect of demand Rs.1,40,93,563/- based on the same has already been paid which is sufficient for hearing of appeals - Balance duty demand Rs.9,89,44,328/- does not appear to be sustainable - Stay granted: CESTAT


Perfetti Van Melle India Pvt Ltd Vs CCE (Dated: May 22, 2015)

CX - Exemption notfn 6/02CE - Assessee are manufacturers of bubble gum - Period of disputes is from 28/04/2005 to 28/02/2006 - Whether clearances of bubble gum during this period were eligible for concessional rate of duty under notfn 06/02CE(serial no. 247) - Bubble gum contains sugar and is classifiable under heading 1704 of Central Excise Tariff pertaining to "sugar confectionary (excluding white chocolate) not containing cocoa" - When w.e.f. 28/02/005 heading 1704 had been re-structured and as per re -structured heading, sub-heading 170490 covered bubble gum, and during period w.e.f. 28/2/2005, exemption notfn 06/02CE (serial no. 247) continued to prescribe concessional rate of duty for "sugar confectionary (excluding

white chocolate) not containing cocoa covered by heading 170490" - Benefit of exemption under this notfn cannot be denied as there is no dispute that bubble gum contains sugar and is covered by expression "sugar confectionary (excluding white chocolate) not containing cocoa" and during period w.e.f. 28/02/2005 heading 170490 also covered bubble gum: CESTAT


M/s Shree Alloys Industries Pvt Ltd Vs CCE & ST (Dated: April 27, 2015)

CX - Clandestine removal - it is admitted by the Managing Director as well as other officials that they have cleared goods on the strength of 38 gate passes to their other units - appellant submits that there were no records found in the receiving units as to whether they have received the goods on the strength of 38 gate passes or not - obviously clandestinely received goods will not be recorded by recipient units - demand rightly confirmed: CESTAT [para 10]

Penalty - Whether appellant is entitled to take Cenvat Credit on steel items or not was in dispute - appellant has already reversed Cenvat Credit along with interest - in the circumstances, penalty not imposable: CESTAT [para 11]

CENVAT - As residential colony have no nexus with the manufacturing activity of the appellant, appellant is not entitled to avail input service credit on construction services of residential colony - divergent views exist on the subject matter, hence penalty not imposable: CESTAT [para 12, 13]

Limitation - Investigation was conducted during the period 15.08.2008 to 20.12.2008 and show cause notice has been issued on 14.09.2010 by invoking extended period of limitation - in view of apex court decision in Orissa Bridge & Construction Corpn. Ltd., demand is time barred: CESTAT [para 14, 15]


CCE Vs M/s Meera And Company (Dated: February 11, 2015)

CX - Notfn 56/02-CE - Assessee's unit is located in the area specified in said notfn and goods are also covered for exemption under same notfn - Dispute is in respect of goods supplied to M/s Reliance Telecom Infrastructure Limited against invalidated EPCG licence - Assessee claimed refund of excise duty from DGFT - Since, the assessee had availed exemption under said Notfn in respect of goods supplied by them against invalidated EPCG licences, the assessee should not have claimed refund of terminal excise duty from DGFT and since they have claimed refund, DGFT has imposed penalty on them - This cannot be the ground for denial of benefit of exemption notification to the assessee - No merit in appeals, so, same are dismissed: CESTAT [Para 6]


M/s Oil & Natural Gas Corporation Ltd Vs CCE, C & ST (Dated: July 9, 2015)

CX - Provisions of Rule 9 of CCR does not provide any restriction clause that the credit is not allowed in respect of invoices issued by input service distributors in respect of service received by them prior to registration as input service distributor - Cenvat Credit cannot be denied on the ground that input service distributor have received services prior to the obtaining registration as ISD – Rs.27.79 crores demand set aside: CESTAT [para 6]



M/s Gupta Synthetics Ltd Vs CCE & ST (Dated: June 1, 2015)

CX - Assessee engaged in manufacture of Articles of Textiles - It is alleged that assessee has wrongly availed CENVAT credit on MS Channels, Angles, M.S. Bars and Beams - In reply to SCN, it is stated that these materials were used for fabrication of machines namely, Winder Frame, Air Handling System, Cooling System and Dryer Structure - Weight, size and nature of machines was such that its fabrication/ fixing to structures was essential with nuts and bolts because attachment is not permanent and what is attached can be easily detached - Assessee claimed that these items are accessories used in plants and machineries - Assessee availed credit on these items and decla red in their ER-1 returns - No material was available that assessee suppressed the fact with intent to evade payment of duty - Impugned order can not be sustained on merits as well as on limitation: CESTAT


M/s Micro Inks Ltd Vs CCE & ST (Dated: May 19, 2015)

CX - Change of Cause Title - Assessee enclosed a certificate of incorporation consequent to conversion of Company from Public Company to Private Limited Company - Registry is directed to amend cause title; insofar as assessee's name would be M/s. Micro Inks Private Limited" instead of "M/s. Micro Inks Limited" - Appeal was not taken for hearing by Tribunal as there is huge pendency of appeals - A lot of appeals have already been listed and therefore it is difficult to take up appeal hearing at this stage - Extension of stay granted: CESTAT


M/s Packaging India Pvt Ltd Vs CCE (Dated: May 26, 2015)

Central Excise - CENVAT credit - Tax paid on various services associated with feasibility study for setting up factory at Uttaranchal admissible as input services credit under Rule 2(l) of CCR 2004 - Credit held admissible having nexus to the business.


Kome Steel Industries Pvt Ltd Vs CCE (Dated: January 23, 2015)

CX - Appellant received wire rods for reducing their thickness which were imported by one P.K. Trading Co. - no invoice from P.K.Trading Co. to appellant - CHA vide letter dated 20.10.2005 had given details of goods' movement - although there are procedural irregularities, from the documents it is established that the goods were received by appellant and were used in manufacturing process and also the finished goods were cleared on payment of duty - No reason to deny the cenvat credit: CESTAT [Para 4]


M/s Bajaj Hindustan Ltd Vs CCE (Dated: June 17, 2015)

CX - Input service credit denied on Pandal and Shamiana service, tour operator services, construction services - Assessee is a manufacturer of sugar and molasses - As per Ultratech Cement Ltd. 2010-TIOL-745-HC-MUM-ST, any service availed by the assessee being a manufacture of excisable goods in the course of business is entitled for Cenvat Credit - It is not disputed by Revenue that services in question were not availed by assessee in course of their business of manufacturing of excisable goods - It is also not disputed that assessee has not constructed residential colony and has not used tour operator services for carrying their employees from their residence to factory and factory to residence - Therefore, assessee is entitled to take Cenvat Credit: CESTAT


Avery Dennison India Pvt Ltd Vs CCE (Dated: July 3, 2015)

CX - By keeping in view the commercial necessity of the appellant and benevolent nature of Rule 16C of the CER, 2002, CCE, Pune-IV to grant permission to the appellant under Rule 16C of the Rules for the FY 2015-2016 - Appeal allowed: CESTAT [para 8, 8.1]



New Phaltan Sugar Works Vs CCE (Dated: May 15, 2015)

CX - s.35F, s.35C(2A) of CEA, 1944 - Any stay order passed by the Tribunal, if it is in force beyond 07.08.2014, it would continue till the disposal of the appeal and there is no need for filing any further applications for extension - Tribunal decision in Venketeshwara Filaments - 2014-TIOL-2388-CESTAT -AHM followed - Application allowed: CESTAT [para 2, 3]


Bajaj Hindusthan Ltd Vs CCE (Dated: June 8, 2015)

CX - Assessee is manufacturer of sugar and molasses - They constructed dormito ry within their factory for stay of these technicians/engineers as same may be called as and when if there is a fault in plant or machinery and took cenvat credit on construction services - It is alleged in SCN that dormitory is located outside factory premises but assessee in reply has clearly mentioned that dormitory is constructed within factory premises and said fact has not been contradicted by Adjudicating Authority or first appellate authority - Construction of dormitory for purpose of stay of technicians/engineers is integrally connected with manufacturing activity of assessee - Credit is available as that service has been availed in business of manufacturing activity - Appeal allowed: CESTAT


M/s Bharat Industries Vs CCE (Dated: April 15, 2015)

Central Excise - clubbing of clearances - Revenue established that the appellant manufacturer created three fictitious firms and showed ghost clearances - duty demand with interest confirmed and penalties imposed on firm and individuals under Rule 9(2) read with Rule 173Q of the Central Excise Rules, 1944, agitated by the appellant manufacturer alone herein.

Held: Narration in the show cause notice brings out categorically how the appellant arranged its affairs in a manner detrimental to the interest of Revenue creating three fictitious units which were only bubbles - Appellant had only one manufacturing unit and in reality, entire clearance made by three fictitious concerns were that of the appellant - No material on record to suggest that fictitious units were in reality manufacturers; they were neither registered with the Excise Authorities nor machinery installed by them to carry out manufacture - no evidence of any purchase of raw material, consumable or packing material nor payment of electricity charges to prove manufacture occurred; no muster roll of the workers engaged; no registration under the PF Act or ESI Act was made to disclose identity of workers - appellant failed to contradict allegations of Revenue in absence of credible evidence led by it - clubbing of clearances for assessment to duty sustains. [Para 5.1, 5.2]

No allegation / record as to under-valuation of the impugned clearances made - adjudication on such count of arbitrary valuation fails and value disclosed by appellant shall be followed to recompute duty liability of appellant on clubbing all four

clearances - looking into the gravity of the matter, upon redetermination of duty element adopting the value of clearances declared by appellant, penalty to the extent of the duty evaded shall be demandable. [Para 5.3, 5.4]


Loyal Textile Mills Ltd Vs CCE (Dated: April 17, 2015)

CX - Limitation - Current appeal results from remand ordered by High Court with directions to decide the dispute on limitation.

Held: JRO forwarded an audit para on 06.08.2004 and sought payment of duty on the basis of said para relating to value of used capital goods - SCN was issued only on 6.10.2005; therefore, it is evident that there is no suppression of facts - Even by taking into account letter dt. 6.8.2004, the demand should have been issued within one year - clearly established that demand is hit by limitation - Impugned capital goods have been imported on 9.8.95 under EPCG scheme and subsequently cleared to their sister unit on payment of duty - audit raised by the department, limited only to demand of differential duty on account of wrong calculation of depreciation value - no allegation of any contravention of provisions of rules; no suppression of facts or intention to evade payment of duty - The impugned order is set aside.


Bajaj Hindustan Sugar And Industries Ltd Vs CCE (Dated: June 8, 2015)

CX - Remission of duty on molasses which became unusable due to auto -combustion - Assessee is manufacturer of sugar and molasses and stored the molasses in steel tanks in factory premises due to heat of summer season - Auto-combustion took place in factory and molasses have been destroyed - To avoid auto-combustion, assessee has taken care to save molasses - Assessee has taken steps to save auto -combustion by way of spraying water to keep lower the temperature of tanks, recirculation of molasses and use of anti foaming agents - Nothing more has been suggested by adjudicating authority to avoid auto combustion - Accident of auto-combustion was beyond the control of assessee, therefore assessee is entitled for remission of duty as claimed: CESTAT


CCE & ST Vs Noor Trading Mart (Dated: March 31, 2015)

Central Excise - Stay/dispensation of pre deposit - documents seized and examined, based on which Revenue concluded clandestine clearances - demands adjudicated and penalties imposed on firms and individual, agitated herein.

Held: Material gathered during investigation demonstrates prejudice caused to Revenue - Accordingly, direction for pre-deposit against all the appellants is warranted in the fitness of the circumstances of the case - Making overall assessment of the facts and circumstances of the case and striking out balance between the case of the Revenue and pleadings of the appellants, they are directed to pre -deposit amounts of Rs. One lakh, twenty lakh and three lakh respectively, within six weeks. [Para 9, 10


CCE Vs Nettur Technical Training Foundation Industries Ltd (Dated: April 27, 2015)

CX - Valuation - demands confirmed on the grounds that (i) the development charges collected from the buyers of component for developing the tools are to be added proportionately to the components supplied; (ii) the amount collected from the buyers of the components for the cost of tools is also to be proportionately included to the assessable value of the components; (iii) an amount collected separately from the buyers of the components under the head 'Excise duty' on the tools used in the manufacture of components prior to the introduction of Section 11D also to be added to the assessable value for redetermining the same; and (iv) revision in the cost of inputs supplied by the buyers had to be adopted and the assessable value of the components to be revised - same agitated herein.

Held: There is no dispute by Revenue that the finished goods are not liable to duty; therefore there shall not be any controversy on the issues in (i) and (ii) - assessee is required to deposit the amount collected as 'excise duty' even in absence of Section 11D of the CEA, 1944, in terms of the Apex Court rulings in Sahakari Khand Udyog & Chengalvaraya Naidu cases - Lower authority to verify the deposit particulars and evidence and pass appropriate order on this limited issue only - assessee succeeds in respect of (iv) since revision of cost has no significance when it is supplied by buyer to the assessee not being liable to duty because its finished goods are ultimately exempted which remained undisputed by Revenue. [Para 8, 9, 10]


Adani Gas Ltd Vs CCE & ST (Dated: June 17, 2015)

CX - Application filed by assessee for early hearing of appeal and submitting that issue is covered by decision in Bharat Petroleum Corporation Ltd 2014-TIOL-1114-CESTAT-MUM - Application allowed: CESTAT


Harish Dyeing And Printing Works Vs CCE & ST (Dated: December 30, 2014)

CX - Assessee engaged in processing of Man Made fabrics from grey fabrics and availed Cenvat credit on the basis of invoices issued by certain suppliers of grey fabrics - They are eligible to avail credit on the basis of said invoices as per Rule 7 of CCR as it stood at relevant period - Supplier of grey fabrics who issued invoices are not traceable and /or non-existent - Commissioner (A) has clearly observed that assessee is not the part to fraud committed by grey fabric suppliers - Demand of inadmissible CENVAT credit is clearly barred by limitation and is not sustainable and penalty is also not imposable - Appeal allowed: CESTAT


Bright Engineering Works Vs CCE & ST (Dated: June 15, 2015)

CX - CENVAT Credit was disallowed by Adjudicating authority on the ground that assessee had availed CENVAT Credit on strength of invoices of service provider who had provided Manpower Recruitment Services to assessee, bearing hand written serial

numbers - Adjudicating authority passed impugned order, following the decision of Andhra Pradesh High Court and CBEC Supplementary Instructions - Andhra Pradesh High Court, after considering various aspects of interpretation of statute, observed that pre -printed of invoices are required - Hence, assessee failed to make out a prima facie case for waiver of pre -deposit of entire amount of duty along with interest and penalty - Assessee is directed to make a pre -deposit of Rs.12,00,000.00: CESTAT


Care And Cure Pvt Ltd Vs CCE (Dated: June 18, 2015)

ST - Assessee had been providing taxable services since September, 2005 but had neither taken registration nor filed any returns - Service was provided under an agreement with M/s Hindustan Lever Ltd. which clearly brings out nature of service and there was no scope for any ambiguity or doubt about taxability thereof - Allegation of suppression on part of assessee is clearly sustainable warranting imposition of mandatory penalty under Section 78 ibid - Penalty under Section 76 ibid, is set aside - Penalty under Section 78 is upheld but assessee is given an option to pay penalty equal to 25% thereof: CESTAT


Shree Chalthan Vibhag Khand Udyog Sahakari Mandli Ltd Vs CCE & ST (Dated: June 22, 2015)

CX - Whether 5% amount under Rule 6 of CCR, 2004 is required to be paid by assessee on Bagasse cleared by them at Nil rate of duty when CENVAT credit is taken on inputs - Sugarcane is pushed into a cane crushing mill to get Bagasse waste and sugarcane raw juice - It has not been brought on record as to what inputs, on which credit is taken, is used during process of crushing sugarcane into waste - Credit on chemicals is taken for converting sugarcane raw juice to commercial sugar or molasses which are cleared on payment of duty - As per Indian Potash Limited 2012-TIOL-1402-CESTAT-DEL , in absence of any evidence on record, to show credit taken inputs used in making of Bagasse, appeal filed by assessee is allowed: CESTAT


C E Kim Vs CCE (Dated: March 5, 2015)

Central Excise - Demand - Appellant, manufacturer of 'conveyor belts', applied for registration, cleared goods, passed on the incidence and collected duty from downstream - same not deposited to Government account until detected by the department; when the dues were discharged with interest - demands confirmed with penalties under Sec 11AC of the CEA and Rule 26 of CER 2002 on the firm; partly modified by Commissioner (Appeals) and individual; agitated herein.

Held: Department has not come out with clear e vidence to show malafides of the appellants or their contumacious conduct to establish evasion - Section 11AC of Central Excise Act, 1944, has two essential ingredients - First ingredient is "intention" and the second one is "evasion" - Records nowhere exhibits the intention of the appellants to defraud Revenue with a view to cause evasion or deliberately suppressed facts - No doubt, awaiting registration, appellant made first clearance but realized duty; nothing on record to show habitual conduct of evasion not being discovered by any direct or circumstantial evidence - Intention of the appellant does

not appear to be evasive; therefore, presumption of ill intention to cause evasion is impermissible on the facts and circumstances of the case and there shall not be penalty on both the appellants [Para 5, 6]


M/s Kamakhya Steels Pvt Ltd Vs CCE (Dated: March 13, 2015)

Central Excise - Annual Capacity of production - appellant, manufacturer of MS Ingots, opted for compounded levy scheme of Rule 96 ZO (3) of Central Excise Rules, 1944; later sought redetermination of ACP under Section 3A (4) - Revenue viewed that since they had opted for compounded levy scheme in April 1998 and had not withdrawn their option, they would be liable to pay duty under compounded levy scheme - demands adjudicated with interest and penalty under Rule 97ZO(3), modified by the Tribunal, agitated before Allahabad HC both by the appellant and the department, who remanded the case to the Tribunal for denovo consideration.

Held: Departmental officers came to know about short payment in course of scrutiny of the RT-12 returns for the relevant period; clear that the fact of payment of duty on actual production basis during the period from December 1999 to March 2000 had been disclosed by the appellant in their RT-12 returns - Department's plea that short payment was deliberate with malafide intention is incorrect - the penalty in this case equal to the duty demand confirmed has been imposed under the proviso to Rule 96 ZO (3), but this penal provision has been held to be unconstitutional by the judgment of Punjab & Haryana High Court in the case of Bansal Alloys and Metals - no infirmity in Tribunal's order reducing the penalty [Para 6]


M/s Dhakad Metal Corporation Vs CCE & ST (Dated: June 16, 2015)

CENVAT - It is beyond comprehension that a man will get invoices without inputs and separately acquire inputs clandestinely from other sources to manufacture his goods - There is no evidence on record that appellant did not re ceive the inputs alongwith cenvatable invoices issued by the dealer - Credit correctly availed - Penalty cannot be imposed on registered dealer u/r 15 of CCR as it has not been shown that they have taken any credit wrongly - Appeals allowed: CESTAT [para 6, 7]



CCE Vs M/s Kothari Products Ltd (Dated: March 17, 2015)

CX - In earlier round of litigation, Tribunal has remanded the case to adjudicating authority for deciding the issue afresh after observing principles of natural justice - It is the grievance of Revenue that while deciding issue, Commissioner has travelled beyond scope of remand order and considered the submission of assessee about admissibility of CENVAT Credit availed without due verification of facts, when SCN about eligibility of such CENVAT Credit are pending adjudication - It is difficult to accept contention of Revenue that Commissioner cannot adjudicate admissibility of CENVAT Credit or otherwise, while considering forfeiture of all irregular payment in ESCROW account or connected issues - It is necessary that Commissioner should take into consideration pending SCN before allowing CENVAT Credit to assessee and record a detailed finding on this issue - Impugned order is set aside to the extent of allowing CENVAT Credit and matter is remanded to adjudicating authority: CESTAT [Para 8]


M/s Gulshan Chemicals Ltd Vs CCE (Dated: February 27, 2015)

CE/ST - Service Tax on inward GTA services paid on the whole value of the services availed instead of 25% as per notification no. 32/2004 - claim filed for refund of the excess Service Tax paid on transportation services i.e. 75% during the period 01.01.2005 - 31.05.2007 on 15.06.2007 - adjudicating authority holding that the appellant has passed the bar of unjust enrichment but the claim is time barred - refund sanctioned of Rs.7,94,490/- but rejected for an amount of Rs.8,26,637/- - appeal filed by appellant rejected by Commissioner(A) - the Commissioner has also reviewed the order of the adjudicating authority after disposal of appeal by Commissioner(A) - appellant is before CESTAT.

Held: Commissioner cannot pass order in revision u/s 84 of the FA, 1994 when the issue of the appeal decided by the Commissioner (A) is on entirely a different issue - order passed by the Commissioner in review is not sustainable in the eyes of the law - On merits also the Commissioner (A) has ignored to consider the fact that the Adjudicating Authority has considered that amount of service tax paid by the appellant is shown receivable from the excise department - refund claim of Rs.7,94,490/- is allowed - So also, as per notification no. 32/2004 the appellant was not required to pay Service Tax at all - when there is no liability for the appellant to pay Service Tax the provision of section 11(B) of the Act are not applicable - bar of limitation is not applicable - appellant is entitled to refund claim of Rs.8,26,637/- - Appeals allowed with consequential relief: CESTAT [para 8, 9, 10]


M/s Hindalco Industries Ltd Vs CCE & ST (Dated: May 18, 2015)

CENVAT – Department alleges that the Supplementary Invoices against which appellant took credit of the Service Tax paid by service providers are not proper documents & appellant is not entitled to CENVAT credit in view of Rule 9(1)(bb) of CCR, 2004 inasmuch the service providers had evaded service tax and later paid the same – demand confirmed along with interest and equivalent penalty - appeal to CESTAT.

Held: When the department alleges that this service tax had been paid by the service providers under supplementary invoices and those supplementary invoices had been issued for the service tax which had earlier been evaded by them and was paid on the

service tax evasion being detected, the burden would be on the department to produce evidence in this regard - However, it is seen that neither the SCN while making this allegation, gives details of the SCNs issued to the service providers and of the adjudication order confirming service tax demands under proviso to section 73 (1) against them nor such documents had been provided to the appellant - appellant have made inquiries with certain service providers which have been placed on record which indicate to the contrary - appellant has strong prima facie case in their favour – Pre -deposit waived and stay granted: CESTAT [para 7, 8]


M/s Reliance Chemotex Industries Ltd Vs CCE (Dated: June 11, 2015)

Refund - CENVAT - Rule 5 of CCR, 2004 - Non-production of customs certified copies of shipping bills alongwith the refund application is only a remediable defect for which the refund claim cannot be denied when subsequently the customs certified copies of shipping bills were produced - when refund claim has been filed in respect of the 70 consignments cleared for export during July 2007 - September 2007, within the prescribed limitation period, and by the time the refund claim was filed, the goods had already been exported out of India, refund in respect of 11 consignments cannot be denied just because the same were physically exported in October 2007 - A substantive claim cannot be denied for a minor procedural violation - Appeal allowed with consequential relief: CESTAT [para 5, 6]


M/s Methods (India) Pvt Ltd Vs CCE, C & ST (Dated: January 30, 2015)

Central Excise - Courier services used to make correspondence with vendors, clients and Tour operator services to move employees to and from work place are integrally connected with business activity of assessee as such are Cenvatable input services - Cenvat credit is admissible - Denial is improper - Impugned order set aside - Appeal allowed with consequential relief. (Para 4)


CCE & ST Vs M/s Amrit Soap Company (Dated: April 22, 2015)

CX - Goods found in excess and raw material found short at time of investigation - Allegation of procurement of raw material clandestinely and manufacturing thereof and clearance of finished goods without payment of duty - Goods were found excess were not in complete finished condition as these goods were not packed and could not be entered in statutory records - Said fact has not been examined at time of investigation - Defence taken by assessee is a cceptable in absence of corroborative evidence - Therefore, proposal of confiscation of goods is set aside - Consequently, penalty and redemption fine are not imposable on assessee - No efforts were made by revenue to reveal the truth by examining manufacturing process to ascertain raw material consumed and resulted output - Charge of clandestinely removal of goods is

also not sustainable against assessee in absence of any contrary evidence against assessee - No infirmity in impugned order, same is upheld - Appeal dismissed: CESTAT


Inder Rubber Industries Vs CCE (Dated: April 9, 2015)

CX - SSI Exemption - Both assessees were using brand name belonging to other persons - Goods being manufactured by brand name owners were different from goods being manufactured by assessees on which these brand names were being used - As per Ace Auto Comp. Ltd. 2010-TIOL-112-SC-CX, benefit of SSI exemption would not be available - As regards to period of limitation, during period of dispute, there were a series of judgments, wherein it was held that use by an assessee of brand name belonging to another person would not result in denial of SSI exemption, if goods being manufactured by assessee are different from goods being manufactured by brand name owner and in respect of which brand name is registered - There was scope for doubt in mind of assessee regarding availability of SSI exemption and hence, in view of Apex Court judgement in Continental Foundation Joint Venture 2007-TIOL-152-SC-CX, longer limitation period of 5 years would not be available and for same reason, there would be no justification for imposition of penalty on assessee under Section 11 AC of CEA, 1944: CESTAT [Para 7, 8]


M/s Hero Honda Motors Ltd Vs CCE (Dated: May 18, 2015)

CX - AV - s.4 of CEA, 1944 - Dealers request the appellant to organize the advertisement of the products in their area and in such cases about 40% of the expenses incurred on advertisement are recovered by appellant from dealers - no cause for adding this expense in AV - Appeal allowed: CESTAT



Dewas Fabrics Ltd Vs CCE & ST (Dated: February 24, 2015)

CX - Assessee's company and its Directors, filed appeal against impugned order in November, 2005 - When factory was closed since November, 2004, Tribunal failed to understand as to why in column in Memorandum of appeal for "address for communication", it is address of factory which was given and not any other address where assessee company had its office - Though assessee's Counsel withdrew his appearance sometime in January, 2014, thus, since, January, 2014, other than the factory address of assessee, there was no address to which any directions to them

regarding date of hearing could be communicated - If assessee were really serious in pursuing appeal they should have given some other address for communication at which they would be available and not the address of factory which was closed since one year prior to filing of appeal - Assessee has not cooperated at all with Tribunal in this regard - Appeal dismissed: CESTAT [Para 7]


Arr Sales Agency Vs CCE (Dated: May 01, 2015)

Central Excise - Refund - Appellant, manufacturer of scented supari, filed a claim for refund of excise duty; rejected in adjudication but allowed by Commissioner (Appeals) - Revenue agitated the OIA before Tribunal, who set aside the OIA and allowed Revenue's appeal; matter agitated before High Court, who dismissed the appeal - Meanwhile the original authority sanctioned refund in terms of Commissioner (Appeals) order and immediately issued demand for recovery of erroneous refund, which was adjudicated after the Tribunal order, confirming demand for recovery with interest - same upheld by Commissioner (Appeals) and agitated hereunder in the second round of litigation.

Held: The present appeal is an offshoot of refund claim which was originally rejected by the adjudicating authority in his order dt. 30.5.2001 on limitation which is upheld by Tribunal in Final order dt.29.7.2005 and Hon'ble High Court - hence the demand of recovery of erroneous refund with interest; and accordingly the impugned order is upheld [Para 5]


Blue Mount Textiles Vs CCE & ST (Dated: May 11, 2015)

CX - Stay / dispensation of pre deposit - CENVAT credit - Transfer of credit - M/s BMT & M/s GM (100% EOU), both owned by M/s STPL - M/s GM merged with M/s STPL, and subsequently, credit pertaining to M/s GM was transferred; same disallowed in adjudication, upheld by Commissioner (Appeals) and agitated herein.

Held: Appellant at every stage intimated the department and also sought for single registration under Rule 10, with an undertaking binding themselves to all assets and liabilities of other companies - The department has not caused verification in spite of appellant submitting the documents furnished in Dec'2014 - Prima facie , appellants have made out a case for total waiver of predeposit. [Para 4]


M/s Achiever International Vs CCE (Dated: February 03, 2015)

CX - During course of search, goods such as CFLs of Leuci Japan brand, Hquaquiang, SKN, Hans and Jewels were found - Assessee failed to produce invoices for procurement of goods - As goods are branded therefore, both lower authorities have correctly drawn conclusion that goods are procured by assessee without payment of duty - Goods are liable for confiscation - Considering quantum and value of goods, redemption fine imposed on assessee is absolutely correct - No merit in appeal, hence, same is dismissed: CESTAT


M/s Desmet Ballestra India Ltd Vs CC (Dated: May 12, 2015)

Cus - Refund - Department returning refund applications filed by appellant only on the ground that against the very same Bills of entry another person has filed a refund claim, which has been rejected - It is observed that the appellant was claiming the amount as refund on the ground that they have borne the incidence of duty - this assertion seems to have been overlooked by the adjudicating authority - the least he could have done is to consider the appellant's case on merits and passed a speaking order - since the issue involved needs to be factually verified from the records matter remanded to adjudicating authority for reconsideration of the refund application afresh: CESTAT [para 5, 6]


M/s Jansons Clothing Vs CCE (Dated: April 8, 2015) CX - Exemption - Raw material procured duty free from DTA allowed to be cleared for further processing by exporter subject to condition that proof of export be furnished in terms of Notification No. 43/2001 dated 26.6.2001 - Exemption sought to be denied on the ground that the appellant himself did not effect the export clearance; and agitated herein.

Held: Controversy in this appeal is reduced to the point as to whether notification has to be interpreted to mean that export has to be made by the appellant only or the goods are to be exported - The spirit of the notification being to export the goods manufactured using duty free raw material irrespective of the person who exported the same there should not be controversy to bring the appellant to the jaws of the levy - furthermore, appellant was granted permission for clearing the duty free raw material for use in export of the finished goods supported by proof of export [Para 3]


M/s Leben Laboratories Pvt Ltd Vs CCE (Dated: March 30, 2015) CX - Assessee had sought permission from Commissioner to store finished goods manufactured by them outside factory premises without payment of duty on the ground of shortage of space - Such permission was granted to assessee and was renewed regularly - By a letter dated 10.12.2014, assessee again sought extension/renewal of permission to store goods in a warehouse outside the factory - Said letter of assessee seeking extension was rejected by Commissioner of Central Excise, vide letter dated 26.12.2014 - If both the field formations i.e. Range Superintendent as well as Jurisdictional Division Office recommend the case of assessee as has been genuine one, it should have been considered in correct perspective by office of Commissioner of Central Excise - On perusal of letter dated

26.12.2014 vide which Commissioner has not granted extension of permission to store the goods without payment of duty, is a very casually worded and does not given any reason for rejection of request - As per Balkrishna Industries Ltd. - 2011-TIOL-2036-CESTAT-DEL impugned order is set aside and matter remanded: CESTAT


CCE & ST Vs M/s Ankit Textiles (Dated: June 18, 2015) CX - ROM application filed by Revenue on the ground that Chief Commissioner, CE Vadodara was properly nominated by order dated 30.10.2006 of CBEC for purpose of review of O-I-O passed by CCE, Ahmedabad Zone - Order dated 30.10.2006 issued by CBEC, Ministry of Finance is not found enclosed with ROM application and was also not produced during course of hearing when order dated 24.10.2014 was passed - As per order dated 24.10.2014, appeals were dismissed for a proper authorisation not only on the ground that appropriate order/ notification from appropriate authority, authorising Chief Commissioner to sign review order, was not existing but also dismissed, on other procedural requirements on basis of cases decided by coordinate benches - As ground raised now were not existing/raised at time of 'lending the main appeal, therefore, it can not be said that there was any mistake apparent on face of records - ROM application rejected: CESTAT


M/s Talent Steel Industries Pvt Ltd Vs CCE (Dated: April 30, 2015) CX - Exemption - appellant was manufacturer of bars and rods using ingots received from its job worker who in turn cleared goods duty free under notification No.7/97-CE dated 01.03.1997 - Revenue's only allegation is that since the ingots cleared by job worker not suffering duty, appellant is disentitled to benefit of notification No. 7/97-CE dated 01.02.97 - agitated herein.

Held: In view of the settled position of law that duty shall be collected on ingots manufactured by job worker, that concern is liable to duty; appeal by principal manufacturer allowed - appeal by job worker is remanded to adjudicating authority on the very limited issue granting fair opportunity of hearing to the appellant to determine its liability if any in accordance with law, considering its submissions both on facts and law and shall pass a reasoned and speaking order [Para 4, 6].


M/s Kisco Castings India Ltd Vs CCE & ST (Dated: April 27, 2015) CX - SCN was issued to assessee on the basis that invoices issued by M/s. Jyoti Steels are only paper transactions and no goods have been received by assessee - No investigation has been conducted by Revenue at the end of manufacturer supplier against whose invoices assessee has taken Cenvat Credit - No Investigation was conducted from transporters to ascertain the fact whether goods have been transported to assessee's factory or not - Assessee is able to produce invoice against which they had availed Cenvat Credit and same has been entered in their RG-23 Register - Therefore, burden casts on revenue to prove that this is only a paper transaction and goods have not been received by assessee at all but revenue failed to do so - Impugned order is set aside and appeal allowed: CESTAT [Para 6, 7, 8, 9, 10]


M/s MPK Products Pvt Ltd Vs CCE (Dated: December 24, 2014) Central Excise - ACP based assessment under Sec 3A of the CEA 1944 - appellants are manufacturer of re-rolled products; proposals for duty demand by fixing annual capacity of production under Rule 96ZQ of the erstwhile Central Excise Rules adjudicated, ACP finalized, subsequently refixed on remand by Commissioner (Appeals) in the first round of litigation - de novo fixation of ACP upheld by Commissioner (Appeals) and agitated herein.

Held: The issue whether the proceedings against the appellant can be continued under Rule 96 ZQ of the erstwhile Rules after 1.3.2001 or not has been dealt with in Alwar Processors case wherein the Tribunal held that in the absence of a saving clause, proceedings initiated prior to 01.03.2001 would lapse - following the same, proceedings against the appellant post 01.03.2001 not sustainable, impugned orders set aside. [Para 6, 7]


M/s NHH Textile Processors Vs CCE & ST (Dated: April 30, 2015) CX - Fabrics are received by assessee and after undertaking processes of Chemiking and Spotting, goods are sent back to M. H. Mills and subject to further dyeing - Adjudicating authority views that the two stages of washing and dyeing, involved in process of processing of fabrics, cannot be viewed separately - Assessee is only undertaking process of Chemiking and Spotting which is akin to process of washing and cannot be considered to have brought a new marketable product into existence which is brought and sold in market - Every process undertaken on fabrics will not go into category of 'any other process' as mentioned in Note 2 of Chapter 52 of CETA, 1985 - Processes of Chemiking and Sporting undertaken by assessee does not amount to manufacture and accordingly, appeal filed by assessee is allowed: CESTAT


M/s Sulzer India Pvt Ltd Vs CCE (Dated: May 28 , 2015) CX - Storage of goods outside factory premises - department has no locus standi to insist upon the assessee for expansion of factory space - If this contention is accepted then it applies to each and every industry and the provision of Rule 4(4) of CER, 2002 will become redundant - Permission granted - Appeal allowed: CESTAT [para 6]



Industrial Thermopack Vs CCE (Dated: March 20, 2015)

CX - Accounts books were not found maintained properly by assessee - It was alleged that raw material and finished goods found in their factory unaccounted are meant for clandestine removal of goods - No corroborative evidence has been produced by revenue to establish the intent of assessee to remove goods clandestinely - Provisions of Rule 25 of CER, 2002 have not been complied with - Therefore, goods are not liable for confiscation - Consequently, redemption fine and penalty is not imposable on assessee and penalty on Shri Harish Kumar Sharma is also not imposable under Rule 26 of CER, 2002: CESTAT [Para 7, 8, 9]


Philips Electronic India Ltd Vs CCE (Dated: June 17, 2015)

CX - Main assessee, PEIL and earlier named Philips India Ltd. (PIL) was earlier owned by M/s. Punjab Anand Lamp Industries Limited (referred to as PALI) - Other assessee -M/s. Philips Electronics NV Netherlands ( Philips Netherlands) is holding company of PEIL - PEIL in addition to manufacturing lamps, tube lights, electronic products and electrical appliances, were also purchasing lamps from various other parties for sale under brand name-Philips - During period of dispute, about 97 to 98 per cent of production of PALI was being sold to PIL and balance 2 to 3 per cent of sale was to M/s. Bajaj Electricals Limited - Department alleged that PALI and PIL are related persons - Since neither there is allegation of department that M/s. Bajaj Electricals Limited were a lso related person of PALI within meaning of this term as defined in section 4 (4) (c) nor there is any evidence on record that PIL and Bajaj Electricals Ltd are related persons, the sales of PALI to Bajaj Electricals Limited have to be considered as sales to independent buyers - When an assessee has sales on regular basis to independent buyers it cannot be said that assessee has so arranged that goods manufactured by him are generally sold by him to or through a related person and in this regard, quantum of sales to independent buyers is not relevant - It cannot be said that PALI, in respect of their sales to PIL have not paid duty on normal price - When undisputedly 2 to 3 per cent of sales of PALI were to Bajaj Electricals Limited and neither the genuineness of these transactions is disputed by department nor the department has alleged that PALI and Bajaj Electricals Limited were related person within meaning of this term as defined in section 4 (4) (c), department cannot invoke 3rd proviso to section 4 (1) (a) and charge duty in respect of sales of PALI to PIL at sale price of PIL to its dealers - Appeals allowed: CESTAT


CCE Vs Lucas TVS LTD (Dated: May 20, 2015) Central Excise - CENVAT credit - Revenue agitating Commissioner (Appeals) order holding certain input services admissible to credit.

Held: Manpower supply to canteen is within scope of integrated activity of the factory, with canteen itself being an obligation under the Factories Act - pest control being an essentiality to preserve the record for carrying on the business, disallowance of credit improper - Commissioner (Appeals) rightly held both input services adm issible.


Dr Writer's Food Products Pvt Ltd Vs CCE (Dated: April 10, 2015)

CE - Duty on samples of chocolates drawn for quality control and infestation – Only for the sake of absence of the record for date of destruction of the sample, without there being any finding as to clearance or sale of any sample products by the assessee, no adverse inference can be drawn based on presumptions and assumptions – Duty Demand set aside & appeal allowed: CESTAT [para 7]



M/s Kl Concast Pvt Ltd Vs CCE & ST (Dated: April 15, 2015)

CX - Cenvat Credit on steel items namely HR sheet, MS Bar and Round, TMT bars, Shapes and Sections, Mould Tubes, Iron And Steel Bars and Aluminum Bars - As per certificate produced by Charted Engineer, except items iron and steel bars all other items are used for either fabrication of capital goods or part of capital goods or used as input by assessee in manufacturing of final product - Revenue has not produced any contrary evidence to report of Charted Engineer - Except for iron and steel bars, Cenvat Credit is allowed to assessee as usage of iron and steel bars have not been discussed by Charted Engineer in his report - Assessee has also contested issue of limitation on the ground that SCN has been issued on 24.02.2012 for period 2007-08 to 2011-12 - As per Vandana Global 2010-TIOL-624-CESTAT-DEL-LB, for the period prior to 30.04.2010 extended period of limitation is not invokable - Appeal allowed: CESTAT


CCE Vs M/s Kml Molding (Dated: February 26, 2015)

CX - Assessee constructed factory shed in their factory premises and paid ST on civil construction services and availed cenvat credit of ST paid thereof - As per Rule 2(1) of CCR, 2004, for setting up, modernization, renovation or repair of factory, Cenvat credit is entitled for input service - Assessee is entitled to take Cenvat Credit on said services - No infirmity found in impugned order, same is upheld - Revenue's appeal dismissed: CESTAT [Para 5, 6]


Kluber Lubrication India Pvt Ltd Vs CCE, C & ST (Dated: January 21, 2015)

Central Excise - Waiver of deposit - Value of unutilized raw materials/packing materials written-off prior to 01.03.2013 - Not recoverable for want of recovery mechanism incorporated under Rule 3 of the Cenvat Credit Rules, 2004 - Invocation of extended period of limitation on ground of suppression of material facts, not justified - Good prima-facie case made out by appellant - Pre -deposit is waived. (Para 3)


M/s Vipras Castings Ltd Vs CCE (Dated: June 16, 2015)

CX - Fraudulent CENVAT credit - so long as admittedly material shown in the invoices were not received by the appellant, credit of such invoices cannot be allowed to the appellant - Ship breaking scrap cannot be used for melting purpose and, therefore, the scrap which was used by the Appellant would undoubtedly be scavenger scrap - fact that supplier is absconding reinforces the charges of fraudulent passing of the Cenvat credit and availment thereof by the appellant - Conduct of the appellant clearly shows that they are in collusion with dealer for availment of the fraudulent Cenvat Credit - Demand upheld with penalty u/s 11AC of CEA, 1944 - if the penalty under Section 11AC which is equal to the Cenvat amount has been imposed, separate penalty of similar amount imposed under Rule 13(1) of Cenvat Credit Rules, 2002 was

not warranted: CESTAT [para 6]

Penalty of Rs. 1,29,51,948/- is imposed under Rule 13(1) towards confiscation of the 3826.790 MT on which fraudulent Cenvat credit was availed - First of all, the case of the Revenue is that that Cenvat Credit to the appellant is not admissible on the ground that they have not received the input - Secondly no goods were seized and, therefore, confiscation of the goods not available for seizure cannot be made - Penalty of Rs.1,29,51,948/- under Rule 13(1) (correct Rule 15(1)) of Cenvat Credit Rules, 2002 was wrongly imposed: CESTAT [para 6]

Penalty - Since it has been conclusively established that appellant have fraudulently availed Cenvat Credit by showing bogus purchase, it is impossible that the Managing Director of the appellant company who looks after overall affairs of the company is not involved in the entire modus operandi - Penalty imposed on the Director is also maintained : CESTAT [para 6]

also See analysis of the order


Kolisetty Alloy Castings Vs CC, CE & ST (Dated: March 2, 2015)

Central Excise - Default in payment of duty liability - Wrong availment of Cenvat credit - Held on facts, that portion of Sub rule (3A) based on which Order-in-Original has been passed and under challenge, declared as ultra vires by the High Court - Question of continuance of proceedings based on Sub Rule struck down does not arise - Impugned orders set aside - Appeal allowed by way of remand to the Commissioner (A) to decide appeal on merits without insisting for pre-deposit. (Para 4)


M/s Jain Irrigation Systems Ltd Vs CCE (Dated: March 10, 2015)

Central Excise – Exemption - Appellant supplied the goods in question for use in Drinking water supply project as notified by Govt. of India vide Customs Notification No. 42/96 dated 23.07.96 in term s of clause (6) of CTH 9801 – Revenue viewed the same inadmissible; adjudicated demands, agitated herein.

Held: Appellant's contention that the goods were meant for drinking water supply project is not doubted from documents submitted - goods cleared were factually used in Drinking water supply project, which is a notified project under clause (6) of CTH 9801 - Reference to CTH 9801 finds place in notification No. 6/06-CE dated 01.03.06 as well as notification No. 12/11-CE dt. 07.03.12 - Reading of the customs notification, tariff heading, nature of goods cleared and central excise notifications enables to hold that the goods cleared by appellant were meant for Drinking water supply project only; and the goods so used was certified by the appropriate authority - in absence of any contrary evidence, the goods cleared by appellant cannot be denied exemption. [Para 4]


M/s Kapilansh Dhatu Udyog Pvt Ltd Vs CCE (Dated: February 27, 2015)

CX - Appellant supplied goods without payment of duty to SEZ unit in terms of Section 2(m) of SEZ Act, 2005 - Goods supplied to SEZ is clearly treated as export - Even though in Rule 6 of CCR, 2004, amendment in respect of supplies made to SEZ was made on 31/12/2008 but since supply were already in nature of export only, clearances were entitled for all benefits provided in respect of export of goods - As per Steel Authority of India Ltd. - 2013-TIOL-384-HC-CHATTISGARH-CX , appellant is not required to pay 10% in terms of Rule 6(3)(b) - amendment under Rule 6(6)(i) made on 31.12.2008 is clarificatory in nature and is applicable retrospective from the date when the 2004 Rules were implemented - Impugned order is not sustainable, hence same is set aside and appeal allowed: CESTAT [Para 5]


M/s Golden Tobacco Ltd Vs CCE (Dated: December 1, 2014)

CX - Commissioner has confirmed duties against M/s Golden Tobacco Ltd. and M/s. M P Tobacco Ltd. 'jointly and severally' - Tribunal in same appellants case vide earlier orders have held that such confirmation of demands or imposition of penalties jointly and severally are not in accordance with law and matters stand remanded to Commissioner for fresh decision, after making his mind as to who is actual manufacturer of cigarettes in question - Said directions does not stand complied with by adjudicating authority - Adjudicating authority is directed to follow instructions as contained in said Final Order of Tribunal, during course of denovo proceedings - Only persons to gain from such avoidable delay in adjudication of this matter are M/s GTC Industries Ltd. and M/s MP Tobacco Ltd. against whom duty demand may be confirmed, as interest liability under Section 11AA of person held to be liable to pay duty would start only on expiry of three months from date of adjudication order - Registry is directed to endorse a copy of this order to Chairman, CBEC for his information: CESTAT


Krishna Barrels Pvt Ltd Vs CCE & CC (Dated: February 10, 2015)

CX - Assessee availed Cenvat Credit of Rs. 18,035.00/- on rejected raw materials which cannot be used in or in relation to manufacture of final products - Assessee reversed credit during investigation - As regrds to demand of duty of Rs. 4,61,071/-, it is a fact that rejected material was undertaken process by assessee on which they availed credit under Rule 16 of CER - Assessee cleared goods after process - Decision of Division Bench of Tribunal in case of Apollo Tyres Ltd . 2010-TIOL-549-CESTAT -MUM would apply for hearing, wherein it is held that expression "for any other reason" in Rule, 16 (2) of Rules, 2002 have wide amplitude - As regards to demand of Cenvat Credit of Rs. 56,481.00/- on outward freight charges, assessee contends that due to misunderstanding of law, they reversed credit before issues of SCN - Cenvat Credit is admissible on outward transport to Customers premises - When issue is settled in favour of assessee that they are not liable pay duty, then, demand cannot be sustained merely, on grounds, that they have not contested the issues on merit, as Tribunal is final fact finding authority - Demand of duty of Rs. 18,035.00/- alongwith

interest is upheld and demand of duty in respect of other issues and penalty are set aside: CESTAT [Para 4, 5, 6, 7, 8]


M/s Ankit Exim Pvt Ltd Vs CCE (Dated: February 09, 2015)

CX - ROA - Matters were listed for final hearing on 22.01.2014 - According to assessee's Counsel, matter was called at around 4 P.M. in afternoon and at that time, since he had to go somewhere for some personal work, he had instructed his clerk to seek adjournment, as brief of this matter had been received by him only a day before and he was not prepared to argue this matter - Genuine reasons for non-appearance of assessee - After going through said order, it is clear that not only order is ex parte order passed without hearing assessee, even merits of case are not discussed at all - Since this is a non-speaking order passed ex parte, it deemed fit to recall this order: CESTAT


Shri A Thangavel Vs CCE (Dated: March 24, 2015)

Central Excise - Refund under Rule 5 of CCR 2004 - applicant is a manufacturer of fabrics clearing goods to the garment manufacturers under Notification No. 43/2001-CE (NT) dated 26.06.2001 as amended - claim rejected in adjudication on the ground that the appellant has not submitted the proof of documents of exports from the claimant's premises and also they have not produced sufficient evidence for the same - same upheld by Commissioner (Appeals) and agitated herein.

Held: Both the authorities below have rejected the refund claim on the grounds that they are not the actual exporters and also they failed to produce the documents as per the notification No. 11/2002 - no dispute on the fact that the garment exporters are duly registered with the department and executed necessary bond and followed the procedure prescribed under the said notification; annexure-I issued by the garment manufacturer is duly certified by the jurisdictional Asst. Commissioner for procurement of fabrics from the appellant without payment of excise duty - goods were supplied to the garment manufacturer under the above notification for use in the manufacture and export of final products; clearance of the goods under the said notification by the appellants is ultimately meant for export - for claiming refund under Rule 5 read with Notification No.11/2002 in para-4 - Condition No.4 of the notification not applicable to the appellant as they have not exported directly but cleared duty free to the garment manufacturer by following the conditions under notification No. 43/2001 and also by following Central Excise (Removal of goods at concessional rate of duty for manufacture of excisable goods) Rules, 2001 and the garment exporter ultimately exported the goods [Para 5]

Identical issue has been decided in the case of SVM Textile Mills, Jain Textiles Industries and Pioneer Processing wherein refund was allowed - Tribunal consistently held that that even though the appellant is not an exporter but the goods were cleared under the notification No. 43/2001, which is intended for manufacture of garments and for export out of India, they are eligible for refund under Rule 5 of CCR

- Relying on the same, held that the appellants are eligible for refund of unutilized cenvat credit under Rule 5 of CCR; impugned order is set aside [Para 6]


M/s Dabur India Ltd Vs CCE (Dated: May 29, 2015)

CX - 'Anmol' Coconut oil sold in packing of 200 ml or less - Duty paid under protest on instructions of department by adopting classification as Hair Oil (33.05) - Judgment of Tribunal in case of Capital Technologies Ltd. classifying goods under 1513 @Nil rate of Tariff is a binding precedent - Matter remanded for examining unjust enrichment: CESTAT [para 9, 10, 11]



CCE Vs K G Denim Ltd (Dated: June 26, 2015)

CX - Assessee filed refund claim of Rs.30,60,023/- - Deputy CCE in his order dt. 21.11.2008 had sanctioned refund of predeposit of Rs.10 lakhs (paid through cenvat credit) in cash and rejected amount of Rs.20,60,023/- voluntarily paid by them - Revenue relied on Rule 11(3) which came into force w.e.f. 1.3.2.007 vide Notfn 10/07 CE (NT) - Assessee opted for exemption under Notfn 30/04 which exempted the goods from whole of excise duty - Case relates to period prior to 9.7.2004 and amendment to Rule 11 was inserted only from 1.3.2007 - Said amendment cannot have any retrospective effect for earlier period - Therefore, in absence of any specific provision in said notfn or any other provision prior to 1.3.2007, there is no lapse of credit and sub-rule(3) cannot be applied retrospectively for period prior to 9.7.2004 - Said Notfn is a conditional one and cannot be considered as absolute exemption and Clause(ii) of sub rule(3) of Rule 11 is applicable only if final product is exempted absolutely - Accordingly, assessee have rightly utilized the credit for payment of predeposit of Rs.10 lakhs as per Tribunals interim order and voluntarily paid Rs.20,60,023/- through cenvat account towards the demand - Assessee neither closed their unit nor their registration is cancelled and they are fully viable and functioning and producing Denim fabrics and clearing for domestic as well as for exports and also discharging ST liabilities - Therefore, by following decision in case of Steel Strips 2011-TIOL-656-CESTAT -DEL-LB it is held that predeposit amount of Rs.10 lakhs and Rs.20,63,023/- voluntarily paid cannot be allowed by way of cash refund and said refund is to be allowed by way of re -credit in cenvat account - Both the assessee's and Revenue's appeal are partly allowed and refund amount of Rs.30,60,023/- is allowed by way of recredit in cenvat credit account and not by cash refund: CESTAT


M/s Sharda Forging And Stamping Pvt Ltd Vs CCE (Dated: February 5, 2015)

CX - Assessee has not maintained separate accounts for furnace oil used in both final products - They have reversed cenvat credit attributable to furnace oil used in manufacture of exempted final products - If the assessee reversed proportionate cenvat credit attributable to final exempted product and have complied with Rule 6(3) of CCR, 2004 is not required to pay duty equal to 10% sale price of exempted final products - Contention of Revenue that Commissioner (A) has observed that while reversal of cenvat credit, assessee has taken sale percentage of exempted goods, which is not correct, is not acceptable at all as in SCN, only charge against assessee is that they have contravened the provisions of Rule 6(3) - Order set aside and appeal allowed: CESTAT [Para 7, 8]


Micro Inks Pvt Ltd Vs CCE, C & ST (Dated: June 11, 2015)

CX - ST paid by assessee on external commercial borrowings (ECB), on which ST was paid under Banking and Other financial services under reverse charge mechanism - ECB services availed by assessee are clearly in relation to business activities and for promoting the inks manufactured by assessee - It is the case of assessee that during relevant period activities relating to business was covered with definition of inputs services under Rule 2 (l) of CCR, 2004 - No contrary arguments are available in orders passed by lower authorities in this regard.

Held: Cenvat Credit taken by assessee with respect to ECB, for which tax was paid under Banking and other financial services, is therefore covered with in definition of Rule 2(l) of CCR, 2004 - Appeal allowed: CESTAT


M/s Tafe Ltd Vs CCE (Dated: May 5, 2015)

Central Excise - Stay / dispensation of pre deposit - MRP based Assessment - Difference in MRP between Maharashtra & Gujarat explained as owing to octroi payable for Maharashtra - same not considered; demand confirmed, considering higher MRP, and agitated herein.

Held: As per MRP declared on the packets, appellants are manufacturing batteries and clearing under MRP - As per the declaration in respect of batte ries manufactured for Amco Batteries Ltd. they have declared two MRP one for "other States" i.e. Rs.2,336/- and Rs.2,440/- for "Maharashtra"; since clearance to Maharashtra attracts Octroi the price of Rs.2,440/- is inclusive of octroi amount - In view of the rulings in the cases of SMV Beverages Pvt. Ltd., and Amtrex Hitachi Appliances Ltd., appellants have made out a prima facie case for waiver of entire amount of dues. [Para 4, 5]


M/s Aqua Sub Engineering Vs CCE & ST (Dated: May 15, 2015)

Central Excise - Exemption - Appellants are manufacturers of power driven pumps and exempted from excise duty - Thrust bearing assembly manufactured by the appellant emerges as an intermediate product and used in the manufacture of submersible pumps - Appellants claimed Notification No. 6/2000 dated 01.03.2000 under Sl.No. 250, denied in adjudication where the adjudicating authority classified the goods under the heading 8483.90 and held that thrust bearing assembly was nothing but bearing - demands adjudged with interest and penalty and agitated herein.

Held: Identical issue has been dealt by the Tribunal in the case of KSB Pumps Ltd. - Tribunal discussed the Board's circular dated 4.12.02, which is relied upon by the department and also considered the decision in the case of Mather & Platt (I) Ltd. and allowed the appeal - in view of the Apex Court's decision upholding the KSB Pumps ruling, the issue stands settled and the impugned order is set aside. [Para 5, 6]


M/s Vaibhav Ispat Pvt Ltd Vs CC & CE (Dated: May 12, 2015)

CX - Assessee are a manufacturer of M.S. Ingots, raw materials for wh ich are M.S. Scrap and Sponge Iron and goods manufactured by them are covered for exemption under notfn 50/2003-CE - Assessee under their letter dated 26.3.2010 had filed necessary declaration to jurisdictional CE Authorities informing that they will commence commercial production on or before 31.03.2010 - Dispute is as to whether commercial production had commenced on or before cut off date of 31st March, 2010 - Date of commencing of commercial manufacture is date of commissioning of plant when newly commissioned plant had been run and some goods of desired quality had been produced - Merely on basis of load survey report for 30.03.2010 & 31.03.2010, it would not be correct to conclude that there was no production of M.S. Ingots on these dates - Engineer of IIPL which had supplied induction furnace has given a certificate that on 30.03.2010, plant was in position to start commercial production - Further, Department's side except for its analysis of load survey report no evidence to the contrary has been produced - Just because the production entry for 29.03.2010 was false, it cannot be presumed that production entries for 30.03.2010 and 31.03.2010 were also false - Therefore, it has to be concluded that manufacturing unit of assessee company had commenced commercial production on or before 31.03.2010 and is eligible for exemption under said notfn - Appeal allowed: CESTAT


Scor Taur Impex Vs CCE (Dated: April 20, 2015)

CX - Appeals dismissed - ROM applications filed on the ground that in view of the Larger bench decision in the case of Steel Tubes of India Ltd. 2006-TIOL-1720-CESTAT -DEL-LB Tribunal could not have upheld penalty imposed on them - applications are not in the nature of rectification of any mistake apparent on record and, therefore, not entertainable - moreover, in view of judgment of Punjab & Haryana High Court in case of Vee Kay Enterprises 2011-TIOL-174-HC-P&H-CX decision of LB does not hold the field any more - On both grounds viz. entertainability as also on merit, ROM applications dismissed: CESTAT [para 4, 4.1]

ROM application - As per Central Excise law no more than three adjournments can be given to a party even for main appeal - Already four chances have been given to the applicant and, therefore, Bench is not inclined to grant further adjournment in the matter - Applicatio ns taken up for disposal on merit: CESTAT [para 3]


CCE Vs M/s U P Telelinks (Dated: May 11, 2015)

CX - Assessee was a manufacturer of electric items - Revenue views that assessee was engaged in activity of trading also and required to reverse proportionate Cenvat credit attributable to trading activity - None of lower authorities have considered the defence taken by assessee that they have cleared inputs as such and no verification has been done to that effect - As revenue has failed to produce any evidence to show that assessee was involved in trading activity, it may cleared inputs as such - As per provisions of Rule 3(5) of CCR, 2004, assessee was to reverse Cenvat credit availed on inputs cleared as such, therefore, assessee is not required to pay any amount equivalent to 6% /8% of value of inputs cleared as such: CESTAT


Everest Rolling Mills Pvt Ltd Vs CCE (Dated: April 23, 2015)

CX - Clandestine removal - Assessee are manufacturers of rolled pro ducts, raw material for which is MS Ingots - NIPL was one of their supplier of MS Ingots - NIPL were not showing entire quantity of MS Ingots sold by them to various customers in RG-1 register and were paying duty on much lesser quantity - Since assessees were among customers of NIPL, quantity of MS Ingots supplied by NIPL to these units during period 02/8/05 to 01/10/05 as per entries of NIPL ledger book was compared with supplies as per NIPL records in respect of which invoices had been issued - No cross examination of concerned persons of NIPL who had made entries in ledger books had been allowed - Therefore, entries in ledger book of NIPL by themselves cannot be treated as an evidence of assessees having received certain quantity of unaccounted MS Ingots and having used that quantity in unaccounted production of rolled products and their clandestine clearance - Power consumption of SSSRM cannot be applied to assessee units for estimating their actual production on basis of their power consumption, more so, when absolutely no study or experiment has been conducted by Department in support of its claim - In these cases not even inspection or study has been conducted to determine their actual power consumption norm - Neither any evidence unaccounted purchase of raw material nor there is any evidence of clandestine/ unaccounted clearances of final product - Merely on basis of an arbitrarily adopted power consumption norm, production of an assessee on basis of his power consumption cannot be estimated and duty demand cannot be affirmed against him on this basis - Appeals allowed: CESTAT [Para 6, 7, 8, 9]


M/s Triveni Engg And Industries Ltd Vs CCE(Dated: May 26, 2015)

CX - Rule 9 of CER, 2002 - CCR, 2004 - Sugar Mill and co -generation plant situated across the public road are connected through overhead conveyor by which bagasse generated in the sugar mill is transferred to co-generation power plant and electricity produced is used for its operations - units are to be treated as inter-linked and both units have to be treated as one factory - denial of common registration absurd - CENVAT of capital goods and services used for setting up power plant admissible - Appeals allowed: CESTAT [para 6]



M/s Indian Additives Ltd Vs CCE (Dated: February 13, 2015)

Central Excise - CENVAT credit - appellants are engaged in the manufacture of additives for lubricating oil and availed credit on inputs received in tankers as well as in packaged condition in drums and barrels - they carryout stock taking of the inputs on monthly basis at the end of the month and the quantity of the inputs found to be short were subsequently adjusted in their records as consumption - Revenue viewed the credit attributable to stock shortages merited reversal; adjudicated demands, agitated herein - Appeal E/141/2006 is in second round of litigation, remanded by HC.

Held: No shortage between the physical stock and the book stock for more than 70% of the period, and only for particular months there is a huge shortage - If the difference is due to the measurement method between the actual weighment and the massflow meter is to be taken there is no consistency - If at all any inputs remained in the pipelines in a continuous process then the same should have been reflected every month; there cannot be abrupt and sudden shortage of inputs only in particular months during the year. [Para 8]

There is no uniformity in the shortage of inputs and it is evident that this shortage cannot be attributed to the difference in measurement because of heating of liquids, or evaporation loss, or remnant of inputs in pipelines as claimed by the appellants - the inputs are having high viscosity and not volatile in nature - since the shortage of inputs accounted only for specific months and not in a continuous manner it is established that the shortage of inputs is not on account mere difference in variation of weigment methodology and the said quantity of inputs have not been used in the manufacture of final products - case laws relied upon by the appellants distinguished on facts. [Para 9, 11]

Tribunal's LB in the case of Bhuwalka Steel Industries clearly laid down the guidelines for allowing credit on shortage of inputs to be made on the basis of tolerance limits - Division Bench of the Tribunal in the case of Philips Carbon Black held that credit is reversible on the shortage of inputs on account of the difference between the physical measurement and massflow meters, same squarely applicable to instant case - shortages cannot be treated as process loss or evaporation or calibration or weighment loss; hence appellants are not eligible for the modvat/cenvat credit; and the demand for reversal upheld. [Para 12, 13, 14]

It is a clear case of suppression of facts where the appellants deliberately adjusted the shortage as if it is consumed in the manufacture of final products at the end of every month and created fresh opening balance at every month without making reversal of credit on the shortage of inputs - extended period sustained in terms of the Jharkhand HC ruling in the Prestressed Udyog case squarely applicable; penalty imposed under Section 11AC upheld and penalty imposed under Rule 13 & 15 of CCR set aside. [Para 15].


Chennai Petroleum Corporation Ltd Vs CCE (Dated: April 16, 2015)

Central Excise - Restoration of Appeal - Appeals dismissed by Tribunal for non clearance by Committee on Disputes prayed to be restored herein.

Held: When the appeal was dismissed by the Tribunal, it was conscious of the law declared in the ONGC case by the Apex Court as to resolution of dispute between Union of India and Central PSUs - appellant was permitted to contest appeal only on levy of penalty, clearly demonstrating that the appellant was estopped to contest beyond the scope of decision of the Committee on Disputes on any other aspect - Further, the appellant has come after 7 years to the Tribunal for restoration of its appeal - Tribunal does not have power to review its own orders in absence of specific provision in law granting power of review; even though penalty was not imposed in the adjudication, there was no permission to litigate on duty demand - Although decision of Committee on Disputes is no more requirement according to Apex Court ruling in ECIL case, there is specific denial by Committee to dispute further probably to prevent wastage of time of the court as well as resources - appellant is not permitted to litigate further with Revenue. [Para 6, 7]


Garden Silk Mills Ltd Vs CCE & ST (Dated: June 09, 2015)

CX - Interest - Assessee has already paid entire CENVAT Credit demand on GTA services availed from place of removal - Assessee fairly agreed that interest on irregularly taken credit may be payable - As per Market Systems Ltd 2014-TIOL-1036-CESTAT -AHM , interest on in-admissible CENVAT Credit taken is payable by assessee: CESTAT

CX - Penalty - In case of ABB Ltd. it was held that GTA services from the place of removal is admissib le even after date of amendment to CCR - This order passed by Larger Bench was set aside by Karnataka High Court only in year 2011 - Therefore, assessee had a bonafide belief that such CENVAT Credit taken is admissible - It is not a fit case for imposition of penalty under Rule 15(4) of CCR, 2004 - Penalty set aside: CESTAT


Bayer India Ltd Vs CCE & ST (Dated: January 21, 2015)

CX - Assessee were engaged in manufacture of Pesticides/Insecticides classifiable under sub-heading 380510 of Schedule to CETA, 1985 - Assessee cleared the inputs as such and reversed credit availed on the inputs - In case of Tata Motors Ltd . 2010-TIOL-1604-CESTAT-KOL after considering explanation of Rule 57AB (b) of CCR, 2004, it is held that reversal of credit availed at the time of receipt of inputs is sufficient at time of clearance as such from factory of production - Impugned order is set aside

and appeal allowed: CESTAT


Jindal Stainless Ltd Vs CCE & ST ( Dated: May 22, 2015)

CX - CENVAT - Power grid to whom electricity is sent for synchronization is to be treated as a job worker - since electricity was returned back to the Appellants factory there is a substantial compliance with the provisions of Rule 4(5)(a) of CCR, 2004 � CENVAT credit availed on fuel (furnace oil) used in generation of electricity cleared to Electricity Board is admissible - Appeal allowed: CESTAT [para 4, 5, 8, 10, 11, 13]



Dynamic Motors Vs CCE & ST ( Dated: April 28, 2015)

CX - It is alleged that assessee has suppressed the fact that they are authorized dealer of General Motors - Said fact has been recorded by Tribunal in assessee's own case vide order dated 4.11.11 reported in 2011-TIOL-1876-CESTAT-DEL which has been arisen out of O-I-O dated 28.12.10 which means that before 2010, it was in knowledge of department that assessee is an authorised dealer of M/s. General Motors for selling vehicle - Therefore, allegation against assessee that they have suppressed the fact is not correct - SCN cannot be issued to assessee by invoking extended period of limitation - Therefore, demand in impugned order is not sustainable - Consequently, impugned order is set aside and appeal allowed: CESTAT


M/s Food And Health Care Specialities Vs CCE (Dated: May 28, 2015)

CX - Valuation - s.4 of CEA, 1944 - Expression "interest directly or indirectly" used in clause (iv) of s. 4(3)(b) of CEA, 1944 would refer to the financial interest only - The real test of a related person transaction tainted by "interest directly or indirectly in the business of each other" is that the purpose of the transaction is not the sale of goods/services by the seller to the buyer at fully commercially providing price but something else, like seller wanting to reduce his tax liability etc. - AV determined in accordance with decision in Ujagar Prints is legal and proper - Demand of Rs.9.35 crores set aside and appeals allowed: CESTAT [para 8, 9, 13, 14]



Keva Flavours Pvt Ltd Vs CCE (Dated: June 26, 2015)

CX - Appellants had to vacate the factory premises due to a family dispute - since the new factory was not ready and fearing that they would be forcibly removed they shifted entire unit to an adjoining premises and informed the department & took registration la ter - CE duty demanded on finished goods, work-in-process, CENVATted inputs, ordering confiscation and imposing redemption fine and penalties - technically there are some procedural irregularities committed by the appellants but there is no need to demand duty - Finished goods were cleared on payment of duty from new premises - Work -in-progress goods were converted into finished goods and cleared on payment of duty - Duty demand set aside along with interest & penalty, RF reduced & penalty reduced on Director, penalties on other appellants set aside: CESTAT [para 7.1]



M/s Praful Overseas Pvt Ltd Vs CCE, C & ST (Dated: March 12, 2015)

CX - Application for Modification of Stay Order was filed by assessee to waive pre -deposit entirely - They submits that Stay Order was passed on the basis of decision of Gujarat High Court in case of Cadila Healthcare Ltd and appeal against the decision of Cadila Healthcare Ltd was admitted by Supreme Court and there fore, such decision cannot be a precedent - They relied upon decision of Supreme Court in case of West Coast Paper Mills Ltd - It is well settled that precedents are binding only in context of facts of each case - Decision of High Court in Cadila Healthcare Ltd is against the assessee and Supreme Court had not granted any stay and the said decision is in force and binding on this Bench - Co-ordinate Bench of Tribunal in case of Sushil Agarwal , made the observation without going into facts in case of West Coast Paper Mills Ltd - A judgement has to be read in context of its facts and it is not permissible to pick and choose certain words from judgement and it cannot be a precedent - No merit in application filed by assessee, accordingly, application for Modif ication of Stay Order is dismissed - Period of compliance extended for further two weeks: CESTAT [Para 7, 8]


M/s Indo Count Industries Ltd Vs CCE (Dated: April 30, 2015)

CENVAT - Rule 9 of CCR, 2004 - Credit of SAD availed on strength of supplementary invoices denied on the ground that duty was paid by supplier after detection of short levy - Tribunal has held that non-reversal of SAD by M/s MIRC Electronics - 2015-TIOL-636-CESTAT -MUM cannot be with intention to evade duty on such components, as the appellant had discharged appropriate duty liability of CVD/CE - Credit admissible - Appeal allowed with consequential relief: CESTAT [para 6]



M/s Steel Mongers India Pvt Ltd Vs CCE (Dated: March 2, 2015)

CX - Penalty - No statement of assessee has been recorded neither any summons to record statement have been issued to assessee - Statement of manufacturing supplier shows that they were issuing invoices to M/s. Rupesh Bansal - Assessee contends that they have received goods under cover of invoices issued by M/s. Khemka Ispat Limited - This statement of assessee was never tried to test level of investigation nor any other corroborative evidence have been produced in investigation that assessee has received invoices, not the goods - Statement of second stage dealer to whom assessee has issued invoices in his statement admitted that they have received goods from assessee against duty paid which were sold to manufacturing buyer who already admitted that he has received goods - Therefore, statement of second stage dealer and manufacturing buyer supported the case of assessee and in absence of any statement of assessee, now question arises why statement of assessee was not recorded during course of investigation - Therefore, it is concluded that investigation against assessee is incomplete - Penalty under Rule 26 of CER, 2002 is not imposable: CESTAT


M/s Rama Vision Ltd Vs CCE (Dated: March 26, 2015)

CX - Notfn 50/2003-CE - Expansion of production capacity - Assessee rely upon certificate given by M/s B.K. Arora and Associates which certifies that assessee have expanded their installed capacity and this has been achieved by installing additional equipment as per details given and by modification of certain existing machinery - Revenue, however, relies upon report of Professor Arun Kumar of Department of Electronics and Computer Engineering in IIT, Roorkee who has doubted correctness of certificate of Chartered Engineer - Commissioner has chosen to rely upon opinion of Professor Arun Kumar on ground that -"he is an independent authority and his report is a later report and only a Chartered Engineer's certificate cannot wish away expert's report" - Said conclusion is wrong, as a Chartered Engineer is as much an expert as a Professor of IIT - Merit in assessee's plea that a Professor of Department of Electronics and Computer Science is not competent to give opinion on question whether substantial expansion of installed capacity of production had been undertaken, which is a discipline of Mechanical Engineering - Since Commissioner's conclusion is based on expert opinion of Professor Arun Kumar, his cross examination by assessee should have been permitted as report of Professor Arun Kumar is only an opinion whose correctness has to be tested by his cross examination - Matter remanded: CESTAT


Nikhil Refineries Pvt Ltd Vs CCE, ST & C (Dated: January 27, 2015)

Central Excise -Disputed Classification - Extended period of limitation - Sustainability -Classification of Palm Stearin oil under chapter 50 as held by Tribunal in favor of assessee was reversed by Supreme Court holding that it is classifiable under chapter 38 instead -During the relevant period in question, appellant had filed all the returns claiming the classification under Chapter 50 based on Tribunal's decision - In the circumstances, no malafide intention can be attributed to the assessee to invoke longer period of limitation -Appellant has a strong prima facie case on limitation -Impugned order set aside - Matter remanded to Commissioner (A) to decide the appeal without insisting on any pre-deposit.


Mag Engineering Pvt Ltd Vs CCE (Dated: December 12, 2014)

Central Excise - Refund of interest on differential duty - Entitlement - Appellant failed to include value / cost of components supplied free of cost - Differential duty demand set aside as unsustainable by Tribunal was upheld by the Supreme Court - Appellant held is entitled to interest on such differential duty paid during the course of judicial proceedings notwithstanding absent enabling provision in the statute - Matter is remanded to the original adjudicating authority to consider the refund claim afresh only as to whether unjust enrichment is attracted or not - Appeal allowed by way of remand. (Para 5)


Linkwell Telesystems Pvt Ltd Vs CCE, C & ST (Dated: January 30, 2015)

Central Excise - Suo motu credit of CENVAT reversed earlier held does not require filing of any refund claim - No dispute about the recredit of the said entry - Denial of the same by the department on technical ground of non-filing of refund application is neither proper nor justified more so when such recredit was made upon intimation to the Revenue - It is nothing but correction of entries in the accounts maintained by the assessee which does not involve any 'lis' and any legal issue requiring the department to interfere - Impugned order set aside - Appeal allowed with consequential relief. (Para 4, 5)


M/s Indian Oil Corporation Ltd Vs CCE & ST (Dated: June 19, 2015)

CX - LABFS and LARO manufactured by the appellant are classifiable under CETH 2710.29 but are not entitled for the benefit of Notification 75/84-CE as the same is available only in respect of ‘Kerosene' which is ordinarily used as illuminant in oil burning lamps - Kerosene has to be understood with respect to interpretation/understanding attributed by those who deal in 'Kerosene' - product LABFS and LARO are not cleared as Kerosene at all and only used for the purpose other than for illuminant oil for burning lamps or other domestic use – Appeal partly allowed: CESTAT


Amrut Bhagini Mandal Vs CCE (Dated: June 08, 2015)

CX - Job work - Detaining part of LDPE received from customer and replacing the same by locally purchased cheaper LLDPE - difference in the value is nothing but additional consideration and is required to be added in AV of final product Polyfilm - Appeal dismis sed: CESTAT [para 5, 6, 7]



Mahanagar Gas Ltd Vs CCE (Dated: June 23, 2015)

CENVAT - Rule 2(l) of CCR, 2004 - definition of "input service" does not restrict that the said services have to be rendered in the factory premises of the manufacturer - Services of inspecting vehicles at RTO is an Input service - Credit admissible - Appeals allowed: CESTAT [para 6.1, 6.2, 6.3]



M/s Philips Carbon Black Ltd Vs CCE (Dated: March 24, 2015)

CX - CENVAT credit denied on the ground that supporting documents disclosing the details of services received from service providers had not been enclosed with respective input service invoices issued by assessee's registered office as input service distributor - Assessee submits that because of voluminous nature of supporting documents, only consolidated statements were furnished whereas they are in a position to submit invoices issued by respective service providers in favour of registered office - Impugned order is set aside and appeal allowed by way of remand: CESTAT [Para 5]


Manikgarh Cement Vs CCE (Dated: March 9, 2015)

CENVAT - Rule 2(l) of CCR, 2004 - Credit in respect of services of certification of pollution level is admissible even though the service in the hands of the service provider is not taxable but the service tax was admittedly paid by the service provider – Issue involved has been dealt with by the Tribunal in appellants' own cases in their favour - Appeal allowed: CESTAT [para 6, 7]


CCE Vs Punjab Tractors Ltd (Dated: May 25, 2015)

CX - Whether the Transmission Assemblies (TA) captively consumed in the

manufacture of tractors of Engine Displacement Capacity (EDC) below 1800-CC manufactured by respondent during the period 1.8.1996 to 1.06.1998 is exigible to excise duty – CCE, Chandigarh coming to the conclusion that Transmission Assembles are not excisable products emerging at intermediate stage during the manufacture of Tractors – demand of excise duty of Rs.5,50,99,810.00 dropped - Revenue in appeal.

Held: Supreme Court in the case of Escorts Ltd. 2015-TIOL-92-SC-CX has held that TA which comes into existence during manufacture of Tractor is an intermediate product and the same is a distinct product commercially known to the market as such; that the transmission assemblies of tracto rs are commercially known products, and that the fact that not a single sale of such Assembly has been made by the appellants is irrelevant - levy of excise duty on TAs which came into existence in the course of manufacture of Tractors is, therefore, upheld: CESTAT [para 8]

Limitation - In the process of manufacture filed with the department, from time to time the respondent has declared the identifiable sub assemblies - The process of manufacture undertaken by respondent has been made known to the department - It has never been the case of Department that these sub-assemblies were suppressed in the declaration filed - In such circumstances, the respondent cannot be alleged of any contumacious conduct warranting invocation of extended period – SCN issued for the period 1.8.1996 to 1.06.1998 on 31/08/2001 is wholly time barred and the duty demand is not sustainable on limitation : CESTAT [para 10]


M/s Chiripal Industries Limited Vs CCE & ST (Dated: May 6, 2015)

CX - Notfn 30/2004-CE - Whether benefits of exemption under Sr. No. 6 of Table to said Notfn will be admissible to assessee - Facts involved in present appeals and facts involved in case of Garden Silk Mills Limited are identical - A different view is not required to be taken - There was a general practice in trade to claim benefit of Sr. No. 6 of table annexed to said Notfn - Assessee can not be said to have any malafide intention if same benefit was availed by them which was also being availed by similarly placed manufacturers - Extended period for raising demands under Section 11A of CEA, 1944 can not be invoked against assessee: CESTAT [Para 4.1, 4.2, 5]


R K Machine Tools Ltd Vs CCE & ST (Dated: January 30, 2015)

CX - As per Indsur Global Ltd. 2014-TIOL-2115-HC-AHM-CX , condition contained in Rule 8(3A) regarding payment of duty without utilizing the cenvat credit during the period of default beyond period of one month from the due date is unconstitutional - Requirement of pre-deposit of duty demand, interest and penalty is waived - Stay granted: CESTAT


M/s Havells India Ltd Vs CCE (Dated: January 16, 2015)

CX - CENVAT credit is admissible of Additional Customs Duty paid through DEPB scrips in respect of the imports made under notification no.34/97-Cus - There is no such condition in the indicated notifications that the debits made, in DEPB, the licenses issued under the Foreign Trade Policy only would be eligible for credit and the debits made in DEPB issued under the previous policy will not be eligible for credit - Appeals allowed: CESTAT [para 6, 7]


JCB Ltd Vs CCE & ST (Dated: February 9, 2015)

CX - Appellant received chassis from manufacturers on which they built the bodies on job work basis and they returned the complete vehicles from where the same are cleared on payment of CE duty - Department by invoking Chapter Note 5 of Chapter 87 of the CETA, 1985 took a view that since the appellant have ‘manufactured' the motor vehicles, they also would be required to pay automobile cess under Industries (Development and Regulation) Act, 1951, notwithstanding the fact that the chassis manufacturers had also paid automobile cess at the time of clearance of the chassis from their factory – Appeal to CESTAT.

Held: Circular no.41/88 dated 31.08.88 clarified that the matter had been referred to the Administrative Ministry, who have intimated that the intention is to realize such levy (automobile cess) from the vehicle manufacturers and not from the body builders – This Circular is still in force and has not been withdrawn – Prima facie view is that notwithstanding introduction of chapter note 5 in Ch.87 w.e.f 2005, as the Board Circular 41/88 is still valid, the order of the lower authorities is not correct – Pre -deposit waived and stay granted – Stay applications allowed: CESTAT [para 6]


Wisdom Steel Tech Pvt Ltd Vs CCE, C & ST (Dated: January 29, 2015)

Central Excise - Non-manufacturing activity - Cenvat Credit availed on inputs in the process - Held, credit cannot be disallowed when assessee used the same for payment of duty on its final product, when there was no requirement of payment of duty on the final product - Question of reversal of Cenvat does not arise - Impugned order requiring reverse of Cenvat set aside - Appeal allo wed with consequential relief. (Para 3) - Assessee Appeal allowed


M/s Filter Manufacturing Industries Pvt Ltd Vs CCE (Dated: January 14, 2015)

CX - Assessee having two units engaged in the manufacture of different types of industrial filters - It is alleged that assessee had availed CENVAT Credit on certain inputs at their unit-1, but removed the same as such without reversal of CENVAT Credit to their Unit No.2 where such inputs were used in manufacture of final product at Unit No.2 and cleared on payment of duty - Assessee failed to establish that inputs received at their Unit-2 and had been utilized in or in relation to manufacture of final product - No reason to interfere with aforesaid finding of Commissioner(A) - Appeal rejected: CESTAT


Key Locks (India) Vs CCE (Dated: March 20, 2015) CX - Clandestine removal - best judgment assessment made by the Adjudicating Authority holding that CR Strips of 37,381 kgs. and MS Wire of 4,526 kgs. gave rise to clandestinely removed key locks of 1,49,524 numbers cannot be faulted - The authority rightly determined duty liability of Rs.10,51,824/- on such count - Appellant did not provide any material to establish impossibility of manufacture of 1,49,524

locks - In absence of any technical or scientific data, it is not possible to discard the conclusion of emergence of 1,49,524 locks out of shortage of goods found - Appellants should have come out with clean hands to show approximate weight of CR Strip and MS Wire used in manufacture of a lock of each specification, arise of scrap if any, wage incurred for manufacture as well as the overhead charges required in that regard - In absence of any such data, determination of value of the locks of 1,49,524 numbers cannot be found to be faulty -Shortage of raw material gives rise to the conclusion of clandestine clearance with the intention to cause evasion of duty - No doubt, there may be certain amount of arbitrariness in best judgment assessment - But the estimation itself when sustained in the first round of litigation and shortage of stock was found by Tribunal, appellant's questionable conduct came to record - Demand correctly confirmed & Penalty rightly imposed on appellant: CESTAT

CE - Duty demand on locks found short also upheld, so also premise of M/s. R.P. Locks was found to be berthing place for clandestinely removed goods of the appellant "duty demand of locks found in the said premises upheld" Demand also proper in r/o Job worked value of goods which escaped duty: CESTAT

Penalty imposed on Shri Ravi Jain - Adjudicating Authority has not found his active involvement in the clandestine removal and it was only a presumption - In absence of any cogent and credible evidence of his conscious involvement and nexus, the penalty levied on him is waived: CESTAT [para 8]


Datasol Innovative Labs Vs CCE, ST & C (Dated: Januray 8, 2015) Central Excise - Malafides - Manufacture and supply of helicopter and aircraft parts - Bonafide belief that parts supplied to defence as such were exempted from payment of duty in terms of existing notifications and clarification issued by the Commissionerate - Conflicting decisions of Tribunals with no uniform opinion expressed on benefit of notification in question - In the circumstances, malafides cannot be attributed to the appellant. (Para 8)

Central Excise - Proper Certificate - Benefit of Notification No. 10/97-CE dated 01.03.1997 - Certificate is required to be duly signed by Deputy Secretary of the concerned Ministry - Certificate issued by CSIO and Aeronautic Development Agency and the signatory is a person holding the rank in pay scale higher than the Deputy Secretary to Government of India - Certificate is proper - No suppression or misdeclaration can be attributed to the assessee so as to invoke longer period of limitation - Denial of benefit on ground of claim based on improper certificate, is also unjustified - Entire demand being barred by limitation is unsustainable - Impugned order is set aside - Matter is remanded to Commissioner for fresh decision, limiting the demand to the period of limitation, granting the benefit of Cenvat credit of duty paid on inputs - Appeal allowed by way of remand. (Para 9)


Expert Industries Pvt Ltd Vs CCE, C & ST (Dated: March 2, 2015) Central Excise - Denial of input credit service - Challenge - Manufacture of Printing and Lamination machinery - Cenvat credit of service tax paid on Security Service, Telephone and Manpower Supply Service provided to different units located in the main Unit - Goods wherever manufactured finally go to the main unit and clearance of payment of duty takes place from the main unit only - Unlike in the case of inputs where credit can be taken only when it is received in the factory, in respect of input service there is no such restriction - Credit is admissible - Impugned order set aside - Appeal allowed with consequential relief. (Para 6)


Kirat Fabricators Vs CCE & ST (Dated: March 3, 2015) CX - Assessee had commenced commercial production of tubular poles and other accessories in 2009 - Goods including tubular poles are recovered for exemption under Notfn 56/02-CE and their unit is located in area specified in said notfn - Assessee did not pay duty in respect of clearances of poles in view of Apex court judgment in case of Hindustan Poles Corporation 2006-TIOL-29-SC-CX while they in view of Apex court's judgment in case of Prachi Industries - 2008-TIOL-81-SC-CX were liable to pay duty on tubular poles - As per Commissioner's impugned order, they would be liable for Cenvat credit of Rs. 80,83,283/- and Commissioner while confirming above duty demand of Rs. 1,11,74,291/- has permitted Cenvat credit, their net duty liability would be about Rs. 31,00,000/- - Question as to whether benefit of Notfn 56/02-CE can be extended to them from year 2009, requires in depth examination which cannot be done at this prima facie stage - Assessee is directed to deposit Rs. 6,00,000/-: CESTAT [Para 6] 2015-TIOL-1327-CESTAT-AHM

Goodluck Empire Vs CCE & ST (Dated: December 12, 2014)

Central Excise - Stay / dispensation of pre deposit - CENVAT credit - availment without receipt of inputs - demands confirmed with interest and penalties on firms upstream and downstream, apart from penalties on individuals under Rule 26 of CER 2002; agitated herein.

Held : Since the main appellant M/s. Nakoda Alloys Private Limited has deposited almost 50% of the amount confirmed as ineligible cenvat credit and are contesting the issue on merits, same considered enough to hear and dispose the appeals of all the three appellants on merits - M/s. Goodluck Empire & M/s. Jenil Empire to deposit an amount of Rs. 15,000/- (Rupees fifteen thousand only) each within four weeks [Para 3, 5]


CCE & C Vs M/s S H Re-Rolling Mills (Dated: May 15, 2015) CX- Revenue is unaware about the disposal of appeal – Misc. application for re-calling of order is infructuous and, therefore, dismissed: CESTAT [para 1]



M/s Hindustan Zinc Ltd Vs CCE (Dated: March 9, 2015)

Central Excise - Reversal of Cenvat Credit - Closure and dismantle of Lead plant - No evidence that inputs have been written off as obsolete or unfit for utilization in the books of accounts - Question of reversal of credit does not arise - The Order of Commissioner (A) holding that provisions of Rule 3 relating to reversal do not apply to the factual situation in question does not suffer from any infirmity - Revenue appeal has no merits hence is rejected. (Para 6, 8)

Central Excise - Penalty - Sustainability - Closure and dismantle of lead plant - Quantity of lead concentrate recovered at the time of dismantle of plant in question - No proof of clandestine removal or intention to evade duty forthcoming from the Revenue - No evidence placed on record by appellant that the quantity in question was received prior to 1994 as pleaded - As the duty liability is not contested by appellant, penalty is waived. (Para 5)


M/s Gangadhara Steel (P) Ltd Vs CCE (Dated: March 9, 2015) Central Excise - Cenvat Credit - Duty paid on angles, channels, beams etc use in the factory machinery/equipment - No evidence or records to show as to which machinery or equipments, these angles, channels, etc. have been used as accessories / components - Adequate opportunity given to provide the documentary evidence - Request for remand hence rejected - Further in view of the total amount involved is less than Rs. 1.40 lakhs and credit was allegedly availed during construction, penalty imposed set aside while upholding demand of credit with interest. (Para 4-7)


CCE Vs M/s Bharat Heavy Electricals Ltd (Dated: May 6, 2015) CENVAT - Rule 6 of CCR, 2004 - Goods supplied against International Competitive Bidding at Nil rate of duty in terms of notification 6/2006-CE - Common inputs/input services for manufacture of dutiable and exempted goods - whether 10% amount payable in terms of rule 6(3) of CCR, 2004 in respect of goods cleared against ICB. Held: Department's contention that clause (vii) of sub rule (6) is not applicable to the goods manufactured in India, but is applicable only to the imported goods is absurd, as the clause - (vii) cannot be read in isolation but has to be read with the main provision of sub rule 6 - Moreover Rule 6 of the Cenvat Credit Rules is in respect of the goods manufactured in India and this rule, in general, contains provisions regarding denial of cenvat credit in respect of inputs/ input services which have gone into the manufacture of exempted final products or exempted output services - There is nothing in this sub rule from which it can be inferred that clause - (vii) is applicable to the goods imported into India - Appeal dismissed: CESTAT [para 6, 6.1]

CX - Review order passed by two senior Chief Commissioners is an absurd order passed with absolutely no application of mind and as such there is absolutely no merit in the appeal filed by the Revenue - We are amazed as to how such an absurd order can be passed by such senior officers of the Department: CESTAT [para 6.1]



Aurangabad Electricals Ltd Vs CCE, C & ST (Dated: June 15, 2015)

CX - Al dross, turning, oily flash generated during manufacture of MV Aluminium parts given to jobworker situated within same factory premises for conversion into ingots - Jobworker is to be considered as an independent manufacturer of Al ingots - clearances cannot be held to be for captive consumption since in view of Leave and licence agreement, jobworker is an independent entity and benefit of captive consumption notification 67/95-CE not available - however, clearances of remnants (intermediate goods) are to be considered as being covered under rule 4(5)(a) of CCR, 2004/rule 16A of CER, 2002 - job work is not liable for duty, in terms of notification 214/86-CE dated 25/3/1986 as final product is cleared on payment of duty

- No duty liability arises on clearances of remnants to job worker: CESTAT [para 5]



M/s Bajaj Auto Ltd Vs CCE & ST (Dated: June 8, 2015) CENVAT - Employee was involved in fraudulent act of taking credit, without receipt of inputs, for his personal gain - such act cannot be attributed to appellant company as a mala -fide act, as the act of fraud admittedly is not authorized and can never be authorized by the management of the company -Equivalent penalty imposed is unwarranted, hence set aside -however, interest payable: CESTAT [para 7, 8]



M/s Isibars Limited Vs CCE (Dated: March 31, 2015) CX - Whether the appellant is entitled to CENVAT credit in respect of furnace oil used in the manufacture of goods on job work basis and cleared without payment of duty under notification 214/86-CE. Held: Amount of CENVAT credit availed on furnace oil was reversed from time to time and refund was claimed thereafter - original authority rejecting the same on merit as well as on unjust enrichment but Commissioner(A) setting aside the order - Revenue appeal dismissed by Tribunal citing the LB decision in Sterlite Industries - 2005-TIOL-305-CESTAT-MUM-LB - It is absolutely clear that the issue in the present appeal has already attained finality - appellant is entitled for re-credit of the amount reversed by them in r/o furnace oil subject to verification of the said amount by adjudicating authority - appeal allowed by way of remand: CESTAT [para 5]


M/s Asil Industries Ltd Vs CCE (Dated: January 14, 2015) Central Excise - Refund under Rule 5 of CCR 2004 - appellant firm, manufacturers of CR Steel strips and HNT Steel Strips (main items) from HR Coils, exported finished goods under bond; filed refund claim for unutilized credit availed on HR Coils - During adjudication, the original authority deducted duty related to sale of waste and scrap generated during manufacture of main items and ordered refund of the balance; same upheld by Commissioner (Appeals) and agitated herein.

Held: No dispute that the conditions prescribed in the notification issued under this Rule and also the conditions of the exports not having been made by claiming duty drawback or input duty rebate stand satisfied; only dispute is as to whether the duty payable on the scrap cleared for home consumption during the quarter to which the refund claim pertains and also whether the amount recovered from the customers as duty on the sale of waste and scrap during the material period can be deducted from the refund - for these deductions there is absolutely no authority; appellant would be eligible for cash refund of the accumulated Cenvat credit taken in respect of inputs which have been used in the manufacture of goods which has been exported under bond/LUT and in this case, cash refund can be disallowed only to the extent the cenvated inputs are contained in the scrap cleared for home consumption on payment of duty - impugned order is set aside and the matter is remanded to the Assistant Commissioner for re -determining the quantum of cash refund under Rule 5 payable to the appellant and the differential amount, if any, due shall be paid to them. [Para 6]


Hindustan Pencil Pvt Ltd Vs CCE (Dated: April 15, 2015) Central Excise - Manufacture - Commissioner (Appeals) held that mixture of graphite and clay coming into existence is marketable product;and upheld the classification made by the adjudicating auth ority under Heading 6815 1020 discarding the claim of the appellant that it is not liable to duty for no marketable goods manufactured - impugned order agitated herein.

Held : Tribunal in the Umesh Pencil Processors case considered the Apex Court ruling in the United Phosphorous case and concluded that mixture of graphite and clay cannot be bought and sold in absence of evidence of any marketability; same was upheld by Apex Court -impugned order legally unsustainable.


CCE Vs Aquasub Engineering (Dated: April 24, 2015)

CX - Refund - Assessments under Rule 8 of the CE Valuation Rules of clearances of intermediate products to sister units finalized and refunds held admissible but credited to Consumer Welfare Fund on ground of unjust enrichment - Commissioner (Appeals) granted relief, agitated by Revenue herein.

Held: Lower appellate authority dealt the issue in detail and passed an elaborate order extending reasons and came to the conclusion that price of the final product cleared by the sister unit remained constant as the goods was exempted from excise duty - respondents opted for provisional assessment for want of cost of raw materials consumed in the manufacture of exempted goods - In a number of decisions of Apex Court, High Court as well as Tribunal, it has been consistently held that when there is no change in the price of the final product cleared and there is no increase in the rate of duty, the bar of unjust enrichment is not applicable - Tribunal in the case of CCE Kanpur Vs Corona Cosmetics & Chemicals examined an identical issue and rejected Revenue's appeal - Following the same, the bar of unjust enrichment is held not applicable in the present case; there is no infirmity in the impugned orders which are upheld [Para 5, 6, 7]


M/s Chandrawati Polymers Pvt Ltd Vs CCE (Dated: April 9, 2015) CX - Assessee manufactures industrial and decorative laminates and there is no dispute that more than 90% of production is supplied to Indian Railways either directly or through dealers and through M/s. Shaktri Sales and M/s. P.A. Sales - There is no possibility that laminates of below 3 mm. could have been supplied by CPPL to Railways in violation of contract terms - Huge difference between quantity of laminates supplied by CPPL to Indian Railways either directly or through M/s. P.A. Sales and M/s. Shakti Sales and quantity manufactured by them as per the RG-I Register - All the dealers from whom the laminates are claimed to have been purchased, have on inquiry stated that they had supplied the laminates of 0.6 mm. to 1.5 mm. thickness only - Therefore, assessee's claim that quantity of laminates supplied to Railways in excess of quantity whose production is recorded by them during period of dispute, had been procured by them from various dealers is false - Not only this, three opportunities of hearing were given to them but they have not appeared for the same -No infirmity in impugned order - Appeal dismissed: CESTAT [Para 5]


Vako Seals Pvt Ltd Vs CCE (Dated: May 15, 2015) CX - Service is not tangible unlike inputs or capital goods - Scope of service is not limited within the four corners of factory - even if same services are received by the appellant at any place directly or indirectly, related to manufacturing activity or rela ted to business activity of the assessee, irrespective whether it is provided within the factory or outside the factory, credit is admissible - ST paid on renting of Gala which was not part of manufacturing activity is also admissible as CENVAT credit: CESTAT [para 5]



M/s Shri Sant Tukaram SSK Ltd Vs CCE (Dated: May 30, 2015) CX - Rule 6 of CCR, 2004 - During the manufacture of sugar, Bagasse, Press mud and Fly Ash get generated which are sold by the appellant - appellant clears the Bagasse, Press mud and Fly Ash without payment of duty claiming them to be non-excisable - Revenue has alleged that since appellant has not maintained separate accounts in respect of common goods and input service, they are required to pay an amount of 5%/10% of the value of exempted non-excisable goods. Held: In appellant's own case, order dt. 6.2.2014 - 2014-TIOL-2862-CESTAT-MUM it has been held that press mud is waste and non-excisable and provisions of rule 6(3) are not attracted - decision is binding one and if the appellant has paid an amount under protest, same has to be refunded - waste cannot be considered as a bye-product and hence it cannot be said that common inputs or input services are utilized - order set aside and appeal allowed with consequential relief: CESTAT [para 6, 7]


CCE Vs M/s I J Muthu Foods Pvt Ltd (Dated: May 26, 2015) CX - Appeals filed by Revenue involving interest of Rs.52,028/- - in terms of Government Litigation Policy vide F.No. 390/Misc./163/2010/JC dated 17/08/2011, Revenue is not supposed to file appeal against the order of the Commissioner(A) if amount involved is less than Rs.5 lakhs - Monetary limit prescribed under the Circular/letter is also applicable in the cases which were filed prior to issuance of the Litigation policy as held by various High Courts - in view of settled legal position, the present appeal which involves amount less than the threshold limit is not maintainable, hence appeal is dismissed without going into the merits of the case - Revenue Appeal dismissed: CESTAT [para 1]


M/s Godawari Power And Ispat Ltd Vs CCE (Dated: December 17, 2014) Central Excise - CENVAT credit - appellant are manufacturer of sponge iron using coal as an input; which they either import or purchase from Coal India - during the period from 01/3/11 to 23/3/11 while Notification No. 1/11 and 2/11 prescribed rates of duty 1% and 5% without Cenvat credit and with Cenvat credit respectively, the exemption Notification No. 63/95-CE dated 16/3/95 extending full duty exemption without any

condition in respect of the coal produced in the mines was also in force - The Department viewed that during that period no duty was payable by Coal India Ltd. in respect of the coal produced by them; whatever amount was paid has to be treated as deposit; and therefore, the appellant were not eligible to avail Cenvat credit of the excise duty paid by CIL on the coal - demand for recovery of irregular credit along with interest and penalty imposed on them under Rule 15 (2) of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act and agitated herein.

Held : During the material period of dispute, the coal received by the appellant from Coal India Ltd. was fully exempt from duty under Notification No. 63/95-CE dated 16/3/95 and at the same time duty @ 1% adv. has been imposed by Notification No. 1/11-CE subject to condition that no Cenvat credit is taken and duty @5% has been imposed under Notification No. 2/11-CE with Cenvat credit - issue stands decided against the Department by the Apex court judgment in the case of MDS Switchgear, as also the Punjab & Haryana High Court ruling in the cases of Ranbaxy Labs and V.G. Steel Industry holding that the assessments made at the supplier's end cannot be reopened at the recipient's end and on this basis the Cenvat credit of the duty paid by the supplier cannot be denied to the recipient - impugned order unsustainable, same is set aside. [Para 6]


Diamond Cement Vs CCE & ST (Dated: January 19, 2015) CX - Assessee received petroleum coke from a 100% EOU - They were required to avail cenvat credit in terms of formula prescribed in Rule 3 (7) (a) of CCR, 2004 but instead of doing so, they have taken cenvat credit of entire additional customs duty and education cess and secondary and higher education cess portion of excise duty paid on by the goods - As per Commissioner (A)'s order, assessee were also eligible for cenvat credit of SAD paid on by goods, if they are eligible for SAD credit and its quantum is considered, quantum of excess credit alleged to have been taken may come down - Impugned order set aside and matter remanded: CESTAT


M/s Sapna Coils Pvt Ltd Vs CCE (Dated: April 13, 2015) CENVAT - Inputs - Import of Seamless copper tube ASTM B280 - Part of imported goods cleared by appellant to sister concern on reversal of credit availed - Revenue saddling liability on the ground that the description appearing in the bill of entry and that on the invoice indicating clearance of goods to sister concern is mis-matching. Held: Both the lower authorities have overlooked the description in its correct perspective as the invoices raised by the appellant while clearing to their sister concern indicates dimension in “inches” while bill of entry indicates description in “mm” - on casual conversion of the dimensions in B/E and on the invoice indicates there is no difference - Order demanding CENVAT credit is incorrect and, therefore, set aside - Appeal allowed: CESTAT [para 8, 9]


Shree Rubber Plast Co Pvt Ltd Vs CCE (Dated: April 16, 2015) CX - At the instance of the CE Officers , Preventive unit, Thane-I, appellant reversing CENVAT credit of Rs.1.70 lakhs on 12/03/2007 - subsequently, since neither any query was raised by the department nor any SCN was issued, appellant taking re-credit on 07/05/2007 - SCN issued on 09/07/2007 proposing disallowance of the said re-credit and imposition of penalty and interest - adjudicating authority confirming demand and imposing penalty u/r 15(1) of CCR, 2004 of Rs.2000/- which order

upheld by Commissioner(A) - appeal before CESTAT. Held: Re-credit is not against any amount of duty payment - it is adm ittedly re -credit of an amount of CENVAT credit debited at the instruction of the officers - because of reversal at the instance of the departmental officers, on which the revenue has not raised any dispute on admissiblity, recredit of the same by the appellant cannot be faulted with - Madras HC decision in ICMC Corporation - 2014-TIOL-121-HC-MAD-CX is clearly applicable in the present case, hence re-credit of the amount already reversed cannot be objected to - LB decision in BDH Industries relied upon by the Revenue has been departed in the case of Sopariwala Exports Pvt. Ltd. - 2013-TIOL-1936-CESTAT-AHM - Re-credit of CENVAT credit made by appellant is in order - Order set aside and appeal allowed with consequential relief: CESTAT [para 5, 6, 7, 8]


Western Coal Fields Ltd Vs CCE (Dated: May 22, 2015) CX - Notification 63/95-CE - A workshop which is in an area in the environs of a mine and is existing solely for the purpose connected with the mine and under the same management is obviously directly serving the mining operations - hence, the notification should be interpreted so as to include such a workshop within the definition of a mine for the purpose of grant of exemption as that would encourage the mining industry - apex court decision in South Eastern Coalfield - 2006-TIOL-87-SC-CX followed - appeal allowed with consequential relief: CESTAT [para 2, 3]


Sonar Impex Vs CCE, C & ST (Dated: May 12, 2015) Central Excise - Refund - It is unfortunate that law enforcing/implementing agency chooses to ignore the law and just because assessee became entitled to refund, proceeded to somehow deny refund, without even considering legal options. While the Commissioner (Appeals)allowed refund, without challenging the order revenue initiated a fresh Show Cause Notice. The legal process adopted in this case shows that opportunities to proceed properly on the part of the Revenue in this case were missed/lost. The second round of litigation initiated itself was unwarranted and probably has to be held void. In any case allowing the appeal with consequential relief and holding the proceedings ab initio void have the same consequences. Therefore appeal is allowed with consequential relief to the appellants.


M/s Vaibhav Forge Vs CCE (Dated: May 15, 2015) CX - Rule 8(3A) of CER - Appellant defaulted in monthly payment of duty and paid the defaulted amount beyond 30 days from the due date along with interest - Demand raised and confirmed for recovery of Rs.7,17,726/- equivalent to the amount of CENVAT credit utilized towards payment of excise duty during the period after 30 days from due date till payment of defaulted amount when the appellant was required to pay duty consignment wise and through PLA. Held: Gujarat High Court in case of Indsur Global Ltd. - 2014-TIOL-2115-HC-AHM-CX has held that condition contained in Rule 8(3A) of CER, 2002 of prohibiting utilisation of CENVAT credit is unconstitutional and, there fore, demand was not sustainable - order set aside and appeal allowed: CESTAT [para 4]


Visen Industries Ltd Vs CCE (Dated: June 5, 2015)

CX- Pre -deposit - s.35F of CEA, 1944 - Availment of fraudulent CENVAT credit without receipt of any inputs by manipulating documents and then showing purported clearance of inputs, as such, on payment of Rs.5.64 crores - it cannot be said that credit taken has been reversed as buyers would have taken credit of the said amount - Pre -deposit ordered of 7.5% of the duty demanded: CESTAT [para 5, 6, 7]

CENVAT - Rule 6 of CCR, 2004 - Manufacture of dutiable & exempted goods & Trading of inputs - Demand made of 6% amount of traded goods of Rs.1,18,45,107/- - appellant contending that credit equivalent that concerning trading activity of Rs.3,44,773/- has been reversed. Held: As far as the appellant is concerned, a total demand of Rs.6,82,11,154/- has been confirmed - appellant is directed to deposit 7.5% of the duty involved minus the amount of Rs.3,44,773/- already reversed - Since pre -deposit not made, appeal not maintainable, however, time given of 4 weeks to make payment and report compliance: CESTAT [para 5, 6, 7]



M/s Nasik Strips Pvt Ltd Vs CCE & C (Dated: May 13, 2015) CENVAT - Rule 4 of CCR, 2002 - C.I.Moulds were not in possession and use of the appellant in the subsequent year as the same were rendered as scrap and cleared from the factory - balance 50% of credit on the said capital goods is not available and has been correctly denied - Appeal dismissed: CESTAT [para 4]



H And R Johnson (India) Vs CCE (Dated: April 1, 2015) CX- Input Service - Rule 2(l) of CCR, 2004 - Appellant has availed credit for the year 2007-08 and 2008-09 on the strength of invoices issued by service provider in respect of Construction services and Manpower recruitment agency service - Allegation of Revenue is that the service provider had surrendered his licence on 16.04.2007 and hence credit availed is incorrect. Held: Service provider had paid ST liability on the invoices issued by them for the period 2005-06 - lower authorities have misunderstood the provisions of CCR, 2004 - There is no time limit for availing CENVAT credit of service tax paid on services - it is also undisputed that the appellant had produced the ST returns filed by the service provider along with TR-6 challan indicating discharge of ST liability on the invoices raised during 2005-06 - if the ST liability had not been discharged by the registered unit, Revenue would not have accepted surrender of the registration certificate - in the absence of any contrary evidence, ST paid by the provider during 2005-06, though the appellant has availed credit belatedly same is within the provisions of CCR, 2004 - order set aside and appeal allowed: CESTAT [para 4, 5]


M/s Delta Electrotrade Control Pvt Ltd Vs CCE (Dated: April 28, 2015)

CX - s.4 of CEA, 1944 - Valuation - Appellant engaged in manufacture of Transformer, Voltage Stabilizer - goods transported to the buyers' premises where they are required to be installed/commissioned - appellant receiving certain amount for the said erection and commission as contract receipts - Revenue alleges that the said charges will form part of AV - Demand confirmed by lower authorities - appeal to CESTAT. Held: Activities of erection, installation and commissioning cannot be considered as part of the manufacturing activity of the goods as these are post manufacturing services - charges cannot form part of AV in view of apex court

decision in Thermax Ltd. 2002-TIOL-205-SC-CX - Demand set aside & appeal allowed: CESTAT [para 5]


CCE, ST & C Vs J K Fabrics (Bangalore) Pvt Ltd (Dated: March 6, 2015)

Central Excise - Refund - Service tax paid on input services like banking and financial services, clearing and forwarding services (exports/imports), courier service, labour contract service transportation service, telephone service, repair and maintenance service, insurance service and professional consultancy service services clearly covered by the inclusive part of the definition of input service - Credit is admissible - Refund rightly allowed - Revenue appeal is devoid of merit. (Para 4)


GSP Crop Science Pvt Ltd Vs CCE & ST (Dated: January 5, 2015) CX - Assessee transferred goods from Unit-1 to Unit-2 on payment of duty at tariff rate - According to department, Unit-1 should pay duty on basis of CAS-4 - Assessee immediately paid differential duty and issued supplementary invoices to Unit-2, who availed cenvat credit on basis of said supplementary invoices - CENVAT credit denied as in violation of Rule 9(1)(b) of CCR, 2004 - There is no sale of goods but it is inter unit transfer of stock - Impugned orders set aside and appeals allowed: CESTAT [Para 5, 7, 9]


Karnataka Antibiotics And Pharmaceuticals Ltd Vs CCE & ST (Dated: January 7, 2015) Central Excise -Waiver of Pre-deposit - Medicines procured from units located in exemption zone and sold to various hospitals at a price fixed by the government in terms of Drugs Price Control Order (DPCO) - Element of excise duty is included in the price fixed under DPCO - Ample documentary evidence to show that appellant had not collected duty in excess of the price fixed by DPCO - Reflection of excise duty element separately in their invoices apparently due to a faulty software,is irrelevant-Prima-facie case made out by appellant and is entitled to unconditional stay. (Para 5, 6)


CCE Vs Hpc Electricals Ltd (Dated: March 4, 2015) Central Excise - Clubbing of clearances - Expenditure incurred on electricity and manpower - Clearances shown in the name of a proprietary concern added to the clearances of Company engaged in manufacture of electrical control panels - Constitute clubbing - No evidence gathered by investigating team to show as to why the clearance of HEC should be added to the clearance of HPCEL after demanding it - Further more, original authority failed to ask for details of persons employed and actual consumption of electricity and did not verify whether electricity consumption and manpower / employees were sufficient or not for the production shown by proprietary firm - Major defect lie in failure to issue notice to the proprietary concern that was pointed out and discussed by Commissioner (A) - Revenue appeal has no merit. (Para 6, 7)


Highco Engineers Pvt Ltd Vs CCE (Dated: March 3, 2015)

CX - Refund - Assessee submits that they applied price escalation from 01.01.2009 instead of 01.07.2009, therefore, entire amount paid in supplementary invoices, was in excess - Documents now produced by assessee were not placed before adjudicating authority so as to enable him to scrutinize whether burden of duty had been passed to customer and also on aspect of eligibility of refund claim by assessee - Case remanded to adjudicating authority so as to ascertain whether assessee are eligible to refund claim on account of incorrect application of Price Escalation Clause and also whether burden of duty has been passed on to customer or otherwise: CEST AT [Para 5, 6]


M/s Annapurna Industries Pvt Ltd Vs CCE (Dated: January 15, 2015)

CX - Both assessee units engaged in manufacture of plastic containers and were availing SSI exemption - Non-accountal of 780 KG of plastic scrap found in premises of M/s Annapurna Industries, and there is no dispute that same was not accounted for in RG-1 Regis te - Assessee's plea that the same being intermediate product was meant for recycling and was exempted from duty under notfn 67/95 CE and for this reason, same was not accounted for in RG-1 Register is acceptable - Accordingly, confiscation of said Plastic Scrap under Rule 25(1) of CER, 2002 and imposition of penalty on M/s Annapurna Industries is not sustainable and has to be set aside - As regards to alleged removal of plastic containers by M/s Annapurna Industries to M/s Shivam Udyog, there is merit in assessee's plea that these goods were not in fully finished condition and had been shifted to adjacent premises of M/s Shivam Udyog on account of lack of space in M/s Annapurna Industries and as such same cannot be said to have been cleared to M/s Shivam Udyog without payment of duty - Duty demand of Rs. 9,398/- and confiscation of said goods is set aside - Cenvat credit attributable to 4125 KG of plastic Granules found short in premises of M/s Annapurna Industries and 15,375 KG found short in factory premises of M/s Shivam Udyog can be determined on basis of invoices issued by GAIL under which M/s JJ Packagers had received consignments - For this limited purpose, matter remanded to Original Adjudicating Authority - Penalty imposable on assessee would be acco rding to re -quantified cenvat credit demand: CESTAT


Eminence Equipments Pvt Ltd Vs CCE (Dated: May 26, 2014)

CX - Classification - Machines manufactured, in no way process the grains or even do not do any auxiliary function before processing of grains but are limited to conveying or lifting or storing grains - Machines correctly classifiable under Heading 8428 and not under 8437 & are chargeable to CE duty - Matter remanded for re-computing duty liability after extending benefit of CENVAT on production of duty paying documents - equivalent penalty also to be recomputed - Penalty on MD reduced from Rs.1 crore to Rs.10 lakhs : CESTAT



M/s Albert David Limited Vs CCE (Dated: April 23, 2015)

CENVAT - Appellant manufactures I.V. Fluids and clears the same after packing them in plastic bottles at Nil rate of duty - LDPE granules is used for manufacture of plastic bottles and when plastic waste arises – such plastic waste is cleared on payment of duty – Department denying CENVAT credit of Rs.22,57,683/- in respect to the plastic

granules which had gone into waste in course of manufacture of plastic bottles.

Held: Issue involved stands decided in the appellant's own case 2013-TIOL-621-HC-ALL-CX ( affirmed by the Apex Court 2014-TIOL-36-SC-CX ) where it is held that in view of the fact that the waste and scrap is final product and excisable item, taking into consideration the scheme of CENVAT C redit, it is but obvious that the appellant is entitled to claim CENVAT Credit on the inputs of plastic granules proportionate to the waste and scrap – Order set aside and appeal allowed: CESTAT [para 3]


Expert Industries Pvt Ltd Vs CCE, C & ST (Dated: March 2, 2015)

Central Excise - Delay condonation - 92 days of delay in filing appeal - Delay occasioned due to negligence of Cost Accountant office - Reasonable cause exist - Delay condoned.

Central Excise - Cenvat Credit of service tax paid by third party - Admissibility - Erection, commissioning and installation of printing and lamination machines by third party for appellant manufacturers - Service provided by the third party in installing the machinery is a service provided to the appellant as such credit is admissible - However, since there is no evidence to show that the cost of erection, commissioning and installation has been included in the assessable value, matter is remanded to original authority to verify the correctness of submission that said cost has been included and accordingly decide the matter - Appeal allowed by way of remand. (Para 5)


M/s Clutch Auto Ltd Vs CCE (Dated: April 10, 2015)

CX - Assessee manufactures automobile components - It is alleged that in respect of 1467 consignments of automobile parts, some had been sold to original equipment manufacturers (OEMs) and 409 consignments sold to non OEM customers, in respect of each such sale, assessee have issued two invoices bearing same number and same description of goods but date of invoices and duty debit particular are different - Out of two invoices, invoice of earlier date was found to be containing bogus duty debit particulars - Assessee's explanation that this practice had been adopted to facilitate their priority customers is not convincing, as during same period in respect of other consignments only one invoice has been issued and there was no such irregularity - Impugned order confirming duty demand of Rs.2,05,53,961/- has to be upheld: CESTAT

CX - Initially goods had been cleared on payment of duty but subsequently same were found to be defective, and were returned by customers and assessee received those goods under Rule 173H but opted not to avail credit of duty initially paid on goods - Even if assessee cleared defective goods under cenvatable invoices by showing duty payment particular which were found to bogus, no duty was demandable from them, as no duty is payable by assessee in respect of defective goods returned by them to customers after repair under Rule 173H - Duty demand of Rs.1,75,951/- is not sustainable - Interest is chargeable under section 11AB for period from 28.9.96 to November, 1996 - While penalty on assessee company under Rule 173Q(1) (d) is upheld to extent of Rs.2,05,53,961/-, penalty under Rule 209A on Shri Suresh Garg and Shri K.P.Chitrasenan is set aside - Penalty on Shri V.K.Mehta, Managing Director under Rule 209 is upheld: CESTAT


CCE Vs M/s Aditya Birla Nuvo Ltd (Dated: January 13, 2015)

CX - Assessee engaged in manufacture of 'wool top' which is dutiable and 'wool grease' which emerges as a byproduct during course of manufacture of finished goods and exempted from payment of duty - It is alleged that they have used input 'Alphox 200' in manufacture of byproduct, 'wool grease' but failed to maintain separate accounts - Even though in initial stage of filing appeal, revenue have not challenged issue on merit, but now through a Miscellaneous Application, they revised grounds of appeal, and challenged order on merit also - Issue is no more res integra in view of Supreme Court in case of Hindusthan Zinc Ltd. 2014-TIOL-55-SC-CX , wherein it has been laid down that separate accounts need not be maintained under Rule 57AD of erstwhile CER, 1944 or under Rule 6(2) of CCR, 2002/2004, where use of inputs results in emergence of byproduct, which is exempted, hence Revenue has no case on merits - Appeal dismissed: CESTAT [Para 3, 5]


M/s A1 Pump Ltd Vs CCE (Dated: May 26, 2015)

Central Excise - Valuation - Officers visited the Unit and found that duty paid on impugned clearances was short of that payable on CAS4 basis - differential duty discharged prior to issuance of SCN - penalty adjudicated and agitated herein - Held that even before issuance of the notice the appellant discharged the liability on the basis of CAS-4 statement, while the regular duty liability was discharged on the basis of standard cost, leaving no scope to doubt the conduct of the appellant - no intention to cause evasion to Revenue; penalty set aside.


M/s Dharani Sugars & Chemicals Ltd Vs CCE (Dated: April 16, 2015)

CX - CENVAT credit - denial of credit on common inputs used in the manufacture of sugar where bagasse and press mud are also produced; recovery of credit with interest and penalty is the common issue agitated in these appeals.

Held: Revenue does not have any logical reason to bring out a difference to the finding of the High Court in the EID Parry case holding inter alia that the input and output need not have one to one relationship - Appeal No. E/391/2012 allowed [Para 2]

Allahabad High Court, in Gularia Chini Mills case held inter alia that the electricity energy not being excisable goods nor exempted goods in terms of Rule 2(d) of the CENVAT Credit Rules, 2004, the appellant cannot be denied of the CENVAT credit on the common input - No evidence to show a different reason or rationale against the principle laid down by the High Court of Allahabad - Appeal No.E/511/2012 allowed [Para 4, 6]

The only question in E/40316/2014 is whether the bagasse generated in the course of manufacture of sugar shall disentitle the appellant to the CENVAT credit of the common input used and whether any percentage formula to be applied invoking Rule 6(3) of CENVAT Credit Rules, 2004 to levy on the appellant for common use of input - High Court of Allahabad in Balrampur Chini Mil ls held inter alia that that the bagasse is an agricultural waste of sugarcane, though marketable product, but the duty cannot be imposed as it does not involve any manufacturing activity - No material to

distinguish the ruling, appeal allowed [Para 7, 8]


M/s Egattur Printing & Packaging Ltd Vs CCE (Dated: April 28, 2015)

CX - Manufacture - short dispute in this appeal is whether 'Bindis' not manufactured by appellants but affixed to the packing material manufactured by the appellant for Amritanjan shall make it liable to duty on 'Bindis' by including value thereof to the assessable value of the packing material.

Held: Goods which are not excisable if transplanted into the goods which are excisable would not altogether make the same excisable goods and assessed to make the assessee liable to pay excise duty on the combined value of both as held by the Apex Court in the Acer India case - identical issue decided by Tribunal in Oswal Fats and Oils case. [Para 2]


M/s Gem Granites Vs CCE (Dated: May 12, 2015)

Central Excise - Exemption - appellants being 100% EOU effected DTA clearances covered under para 6.8 of the policy as per Notification No. 23/2003-CE dated 31.03.2003 under Sl. No. 3 read with condition No.3 - Demands confirmed denying benefit of Notification No.22/2003-CE and agitated herein.

Held : Notification No.22/2003 exempts the goods when brought in connection with manufacture and packaging or production into EOU, it relates to the procurement of inputs, raw materials and capital goods for manufacture of finished goods by the EOU - Therefore, notification referred both in the show cause notice and in the impugned order not related to EOU clearance of finished goods into DTA market and not relevant to the payment of duty on the goods cleared by EOU to DTA - Further the issue on merits has already been decided by the Tribunal in Final Order No. 470/2007 dated 01.05.2007 in the appellants own case - impugned order set aside [Para 4]


CCE Vs Electralloy Special Steel Castings Pvt Ltd (Dated: April 17, 2015)

CX - CENVAT credit - issue relates to availment of cenvat credit on Goods Transport Agency Service and its utilization for payment of service tax - held admissible by Commissioner (Appeals) and agitated by Revenue herein.

Held: Issue stands settled in respondent's favor by Chennai HC in the Cheran Spinners case wherein all the issues including Board's circular dt. 3.10.2005 relied by the Revenue were considered - no infirmity in the impugned orders passed by Commissioner (Appeals), which are upheld. [Para 5, 6]


M/s Dinshaws Dairy Foods Ltd Vs CCE (Dated: February 24, 2015)

CX - Classification - Frozen Dessert - Appellant claiming the same is an "Ice Cream" [SH 2105] while Revenue of the view that the same is "Other than Ice Cream" [SH 2106]. Held: - Prima facie issue is covered by the apex court decision in Connaught Plaza Restaurant (P) Ltd. - 2012-TIOL-114-SC-CX where it is held that in the absence of a statutory definition in precise terms; words, entries and items in taxing statutes must be construed in terms of their commercial or trade understanding, or according to their popular meaning; that "Softserve" to be classified as Ice cream under SH 2105 of CETA, 1985 - Pre-deposit waived and stay grante d: CESTAT [para 4]


Hyva India Pvt Ltd Vs CCE, C & ST (Dated: January 12, 2015)

Central Excise - Inordinate delay of 325 days in preferring appeal - Condonation - Delay attributed to employee going on maternity leave without any evidence to substantiate that said employee was dealing with Central Excise matters - No plausible explanation - Limitation cannot be diluted to condone such inordinate delay - Appeal deserves to be rejected. (Para 7, 9, 10)


Dhampur Specialty Sugar Ltd Vs CCE & ST (Dated: February 10, 2015)

CX - COD of 90 days - Assessee has given a reason for about 90 days delay in filing of appeal which is plausible and which is not disputed by Department - Moreover, delay of 90 days in filing of appeal also cannot be said to be unreasonable and such a long delay which cannot be condoned, more so, when according to assessee's version, they discovered the order of Commissioner (A) in their employee's cupboard in sometime in August, 2014 and immediately thereafter, filed the appeal - This is not a case, when looking to length of delay and conduct of assessee, it can be said that condoning delay would result in injustice to other side, rather not condoning the delay would result in injustice to assessee - As per MST. Katiji and Others - 2002-TIOL-444-SC-LMT , 90 day's delay in filing appeal is condoned: CESTAT


N S Ispat Pvt Ltd Vs CCE (Dated: March 31, 2015)

CX - Assessee are manufacturer of M.S.Ingots from sponge iron - During course of manufacture of M.S.Ingots, slag dust arises, which is waste and same is fully exempt from duty under Notfn 4/06-CE - No separate accounts for inputs/input services used in manufacture of dutiable goods and exempted final products - Even if manufacturer, in accordance with provisions of Rule 6 (2) wants to maintain separate account or inventory of inputs/input services used in manufacture of dutiable products MS ingots and take credit only in respect of inputs and input services used in manufacture of MS ingots, this is impossible as slag emergesd as an inevitable and unavoidable by-product - Lex Non Cogit ad Impossibila is a well settled legal principle applicable in respect of taxation matters also - When it is impossible to comply with the provisions of sub-rule (2) of Rule 6, it would not be applicable - As per Hindustan Zinc Ltd. 2014-TIOL-55-SC-CX , stay granted: CESTAT [Para 6, 7, 8]


M/s Bharat Heavy Electrical Ltd Vs CCE & ST (Dated: June 4, 2015)

CENVAT - Rule 6 of CCR, 2004 - Amount of 5%/10% paid to Government but also 'recovered' from customers - such amounts cannot be treated as 'additional consideration' and added to sale price so as to again demand 5%/10% on the same - Appeal allowed: CESTAT by Majority



CCE Vs M/s Bharat Aluminium Co Ltd (Dated: April 24, 2015)

CX – Aluminium Dross & Skimmings arising during the manufacture of Aluminium products cleared without payment of duty - Department of the view that the aluminium dross and skimming is excisable goods as the same are specifically covered by heading 2620.00 and are marketable – Demand confirmed of Rs. 1,07,57,673/- from them for the period from June 2003 to March 2005 alongwith interest – Commissioner(A) setting aside demand following apex court decision in Indian Aluminium Company Ltd. and holding that the aluminium dross and skimming emerging in process of production of aluminium are not marketable goods – Revenue in appeal. Held: Bombay High Court in the case of Hindalco Industries Ltd. 2014-TIOL-2266-HC-MUM-CX while reversing CESTAT LB decision has held that even w.e.f. 10/5/08, the dross and skimming of aluminium cannot be treated as excisable goods – Commissioner(A) decision upheld and Revenue appeal dismissed: CESTAT [para 5]

CX – Classification – Aluminium Dross & Skimmings - In terms of Chapter Note 3 to Chapter 26 of the Tariff, heading 26.20 applies only to that ash and residue which are used in the industry for extraction of metal or as starting material for manufacture of metal compounds - Such ash and residues would, obviously, be marketable as there would be demand for the same from metal extraction and chemical industry - But in this regard, no evidence in form of evidence of end use of the dross for extraction of Aluminium or for manufacture of Aluminium compound has been produced - Therefore the dross and residues, in question, is not covered by 2620 – order of Commissioner(A) is correct: CESTAT [para 5]


M/s Bhushan Steel Ltd Vs CCE & ST (Dated: February 13, 2015)

CX - Assessee is clearing goods from their factory gate, in some cases goods are cleared from depots and in some cases goods are sold on FOR basis to their customers - Assessee contends that they are not charging any freight towards freight charges from customers when goods are cleared from depot - If selling price of goods from factory and from depot are same, in that case assessee is entitled to claim Cenvat Credit on outward transportation charges paid by them from their factory to depot otherwise not - Said fact can be ascertained by adjudicating authority by going through records of assessee - As regards to goods sold on FOR basis, as transportation charges have been included in assessable value of goods and same are delivered on door of buyer, therefore, ownership of goods remains with assessee - Assessee has complied with condition of CBEC circular 97/8/2007 - On transportation charges where goods are sold on FOR basis assessee is entitled to claim Cenvat Credit - Matter remanded: CESTAT [Para 7, 8, 9, 10]


M/s Godfrey Philips India Ltd Vs CCE & ST (Dated: March 17, 2015)

CX - Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - Whether appellant is required to pay duty for whole of the period or required to pay duty on pro rata basis after availing the abatement for closure period and consequently is entitled to claim the abatement of excess duty paid or not.

Held - Tribunal in Kays Fragrance Pvt. Ltd. & Shree Flavours Pvt. Ltd. held that the appellant is not required to first pay the duty for whole of the month and then claim the abatement and that he is required to pay only the duty for the days for which machines were operating and only interest can be asked for the delayed payment – appellant is entitled for abatement of duty as claimed – Appeal allowed with consequential relief: CESTAT [para 7, 8, 9]


Good Year India Ltd Vs CCE (Dated: February 06, 2015)

CX - Strict law of limitation provided in section 11B of Central Excise Act, 1944 would not apply to the refund claim pursuant to the notification issued under Rule 57F -notification no. 85/97 CE(NT) provides that the claim for cash refund under Rule 57F (13) is to be filed within the limitation period pre scribed u/s 11B and section 11B prescribes the limitation period which is to be counted from the 'relevant date' as defined in that section, neither this notification nor section 11B gives the definition of the 'relevant date' for the purpose of cash refund under Rule 57F (13) -cash refund under Rule 57F (13) becomes admissible only after export of the goods having been made under bond and when the assessee cannot utilize the CENVAT Credit attributable to the inputs used in the manufacture of the goods cleared for export under bond -Therefore, it may not be correct to treat the date of clearance of the goods for export as the 'relevant date' – order set aside and appeal allowed – Appellant would be eligible for cash refund under section 57F (13) only if in terms of the Tribunal's final order dated 14//2015 they reverse the AED (GSI) Credit of Rs . 21,38,512/-in their CENVAT Credit Account: CESTAT [ para 6]


M/s Maini Precision Products Pvt Ltd Vs CCE (Dated: January 7, 2015)

Central Excise - Manufacturer or Job Worker - Rule 10 A of the Central Excise Valuation (Determination of Price of the Excisable Goods) Rules 2000 - Applicability - Appellant manufacturing and selling filters to M/s Bosch Ltd in terms of a contract providing supervision of inputs and requiring purchase of raw materials/inputs from suppliers identified by Principal customer - Does not make manufacturer a Job worker - Rule 10A has no application - Prima-facie case made out by appellant - Pre-deposit is waived. (Para 4, 5)


Pawan Polyplast Pvt Ltd Vs CCE (Dated: March 20, 2015)

CX - Assessee availed CENVAT Credit under Rule 16 of CER, 2002 in respect of consignments of plastic moulded furniture returned from distributor for being re-made / re-manufactured on ground that same were defective - Said amount includes Credit of Rs. 51,160/- in respect of consignment of returned goods found by officers on

20/7/2002 - Assessee themselves conceded that those goods were not those which had earlier been manufacture and cleared by them - Duty demand of Rs. 51,160/- has to be upheld - As regards to demand of balance amount of Rs. 6,66,719/-, merely on basis of statement of Shri G.M. Bhandari, it cannot be presumed that in past also, assessee had taken CENVAT Credit under Rule 16 of CER, 2002 in respect of old and used plastic furniture received by them which had not manufactured and cleared by assessee on payment of duty - CENVAT Credit demand of Rs. 6,61,719/- along with interest and equivalent penalty is not sustainable - Re-moulding charges are for expenses incurred for re-processing and re-manufacturing of goods and same cannot be treated as consideration for goods earlier cleared - Re-moulding charges are not includible in assessable value and as such duty demand of Rs. 1,73,427/-along with interest and equivalent penalty is not sustainable: CESTAT [Para 13, 15]

Valuation - As regards the dispute regarding including the amortized cost of moulds in assessable value of goods, assessee themselves conceded that the same would be includible - Amortized cost must be calculated in accordance with Board's Circular No. 170/4/96CX - Out of duty demand of Rs. 7464/-, duty demand of Rs. 2936/- can be confirmed and rest of the demand on this count is set aside: CESTAT [Para 14]


Sarvottam Rolling Mills Pvt Ltd Vs CCE (Dated: February 06, 2015)

CE - Appellant is engaged in manufacturing of MS Bar - Factory was visited on 29.07.2009 at 11.05 hrs and panchnama was drawn - proceedings were concluded at 11.30 hrs on 29.07.2009 - whole of the proceedings were completed within a span of 25 minutes i.e. drawing of the panchnama and physical verification of stock of almost 2000 Metric tonnes which is not possible by all the means - Stock taking is not proper and shortage found are only on estimate basis which is not acceptable - Shortage found at the time of physical verification on 29.07.2009 is not sustainable - Accordingly, demand is set aside, so, interest and penalty is not imposable: CESTAT [Para 6]

CENVAT - For the inadmissible Cenvat Credit on Joist Angle, appellant has already reversed Cenvat Credit and not disputed the same - Demand on that account has been confirmed along with interest - penalty is not imposable: CESTAT [Para 7]


Perfetti Van Melle India Pvt Ltd Vs CCE ( Dated: March 2, 2015)

CX - Assessee are manufacturers of sugar confectionaries and having two units, one unit in Chennai and second Unit in Gurgaon - According to assessee, goods manufactured by them i.e. mentos mint are "other sugar confectionary" classifiable under sub-heading 1704.90 of Tariff, while according to Department, goods are classifiable as "Chewing Gums" under sub-heading 1704.10 - Tribunal in respect of appeal filed a gainst order of commissioner, has set aside Commissioner's order on grounds of limitation - Since proceedings against Gurgaon Unit are based on proceedings against Chennai Unit, and since in this case also SCN for demand of duty for period from April 2003 to February, 2005 has been issued by 30th April 2008, prima facie same would also be time barred - Merit found in assessee's plea that goods covered under sub-heading 1704.10 would be those where it is gum which gives them essential character and in-fact in terms of Provisions of Food Adulteration Rules 1955 (para A/25.02.01), bubblegums and chewing gums must contain not less than 12.5% to 14% of gums - Product, in question, contains about 1% or less of gum arabic - Even on merit, assessee have strong prima facie case in their favour - Staygranted: CESTAT


Sports And Leisure Apparels Ltd Vs CCE & ST (Dated: March 24, 2015)

CX - Place of removal - Assessee cleared goods from their factory on stock transfer basis to warehouses from where certain quantity of goods was sold to customers and remaining quantity was transported to retail outlets for sale - Input services were availed for transportation of goods from factory to warehouse/retails outlets and various services availed at retail outlets - It is the warehouse /retail outlet which has to be treated as place of removal and, therefore, assessee would be eligible for cenvat credit in respect of services availed upto the place of removal - Stay granted: CESTAT [Para 3, 5]


Rajarambapu Patil Ssk Ltd Vs CCE (Dated: January 08, 2015)

CE - Appellant is engaged in manufacture and clearance of Sugar and Molasses - Bagasse generated is burnt in the boiler as fuel and steam is generated which in turn is used in the turbine for generation of electricity - Electricity is partly used for running the plant and partly sold to Maharashtra State Electricity Board (MSEB) - Revenue invoking rule 6(3) of CCR, 2004 and seeks 10%/5% amount of the value of exempted electricity generated and supplied. Held: Appellant submitting that for generation of electricity no excisable input is used and only bagasse and DM water is used which are not CENVATable inputs - Identical issue decided by Allahabad High Court in the case of Gularia Chini Mills - 2013-TIOL-568-HC-ALL-CX by holding that there is no cause for payment of any amount of 10%/5% - said judgment followed by Division Bench in Shree Datta SSK - 2015-TIOL-560-CESTAT -MUM - demand, therefore, not sustainable - Appeal allowed with consequential relief: CESTAT [para 5]


CCE Vs M/s Sree Srinivasa Processing (Dated: May 22, 2015)

Central Excise - Clandestine clearances - Officers intercepted vehicle with consignment of dyed cotton woven fabrics without valid documents in Mar 2001; the goods and vehicle were seized on the reasonable belief that the same were processed and cleared clandestinely without payment of duty - Investigation was launched into the transactions, records examined, statements of individuals recorded and it was concluded that appellant effected clandestine clearances of fabrics and that the individuals involved were culpable - confiscation of seized goods and vehicle, duty demand with interest and penalty on firm and individuals adjudged - portion of the demand dropped by Commissioner related to job work for principal (AP & Sons) and consignee of clandestinely cleared goods (Sindhu Cotton Mills -SCM); same agitated by Revenue herein on the grounds that the Commissioner has not taken into consideration the details of processed fabrics received by SCM and AP& Sons and not considered the evidences relied by the department and also white papers bearing the signature of Shri C. Manikandan, employee of the respondent company where he signed as "cash received"; and which also contain the quantity, colour of the processed fabrics; and that the offence was established beyond doubt.

Held : The department has carried out extensive investigation subsequent to seizure of dyed cotton woven fabrics pertaining to the respondent unit without valid

documents transported and intercepted in transit check - The investigation established clandestine removal of goods by recovery of private records from SCM, AP & Sons and Sree Balaji Fabrics etc., and also from the respondent unit - The lower authority's findings is not well founded since the entire investigation emanated from the seizure of dyed cotton woven fabrics clandestinely removed from the respondent's unit without any valid documents and without payment of central excise duty, which is not in dispute - It is clearly brought out in the investigation that Shri C. Manikandan, an employee of the respondent company had accompanied the said goods for delivery to SCM and his signature was found in the white papers relating to past clearances - The adjudicating authority failed to consider the vital statements recorded from Shri R. Rajasekaran, who is the Managing Partner of the respondent company and Shri K.R Senthil Kumar, Proprietor of SCM and statement of Shri P. Murugesan, Managing Partner of AP & Sons, the top persons who mange the entire activities - adjudicating authority failed to take note of the statement of Shri R. Rajasekaran, Managing partner of the respondent unit, which is supported by other statements and records - department clearly established the receipt of non duty paid processed fabrics by SCM - white papers signed by Shri C. Manikandan for delivery of goods and cash received are vital evidences which were not discussed by the adjudicating authority - the department has clearly brought out in the SCN clandestine clearance of processed fabrics without payment of duty with connivance of the suppliers ie., SCM and AP & Sons through their employee. [Para 13, 15, 16]

Statements of Shri K.P. Senthil kumar, Proprietor of SCM and Shri P.Murugesan, Managing Partner of AP & Sons wherein they have categorically admitted clandestine operation have been overlooked - They have not only admitted that they used to send fabrics to the respondent unit for processing and received the processed fabrics without bills but also confirmed that they used to pay the job charges to Shri C. Manikandan, after getting signature on the white sheets, clearly confirming modus operandi adopted by the respondent unit in connivance with the suppliers - The statements of Shri R. Rajasekaran, Shri K.P. Senthil Kumar and Shri P. Murugesan are of vital importance in establishing the case and all the three are managing their respective company and they are fully aware of their day to day transactions between the respondent - statements recorded before the central excise officer is a valid evidence and it cannot be said to be coercive [Para 17, 18]

Ratio of Apex Court rulings in the Kalvert Foods case and D.Bhoormul case squarely applicable - department established offence beyond doubt - on the material available on record which is supported by the statements, it is established beyond doubt of the clandestine removal of excisable goods without accounting and without payment of duty and without any valid document - Impugned order is set aside to the extent of dropping of demand and (i) Demand raised in the SCN dated 17.07.2001 is confirmed after allowing the cum-tax benefit and after applying correct rate of duty for 2000-2001 and on revised quantity for 2000-2001 in respect of clearance of goods to SCM; (ii) Demand of interest is confirmed under Section 11AB on the revised demand; (iii) Penalty imposed on the respondent M/s. SSP under Rule 173 Q of CER read with Rule 25 of CER under Section 11AC of CE Act equivalent to the revised demand - The adjudicating authority directed to requantify the demand amount as ordered above within 60 days from the date of receipt of this order. [Para 18, 19, 20, 23]


M/s Pan Parag India Ltd Vs CCE (Dated: December 30, 2014)

Central Excise - Denial of abatement benefit - Closure of the factory for the continuous period of 15 days in terms of PMPM Rules, 2008 - Benefit denied as there was no prior intimation of closure - Issue covered by the Tribunal's decision in P.M. Products Vs. CCE Ahmadabad - Prima-facie case in favor of assessee - Stay allowed unconditionally. (Para 2, 3)


CCE & ST Vs M/s Rameshwar Textile Mills Pvt Ltd (Dated: December 17, 2014)

CX - Recovery by attachment of property - Take over of property from M/s. Namokar Processors - At the time of taking over, assessee gave an undertaking to CE department that all dues of M/s. Namokar Processors will be paid by them - Said undertaking was not properly appreciated by first appellate authority under which assessee has clearly agreed to pay the dues pertaining to M/s. Namokar Processors as and when the issue is decided in favour of department - Nothing in undertaking to suggest that liabilities arising after undertaking will be paid by assessee - Matter remanded to first appellate authority: CESTAT [Para 5, 6]


Recon Oil Industries Pvt Ltd Vs CCE, C & ST (Dated: January 06, 2015)

Central Excise - Classification - Coconut oil packed in less than 200 ml containers - Is edible oil falling under Chapter 15 - Absent stay or reversal of various Tribunal's decisions laying down that coconut oil packed and sold in packets of capacity up to 200 ml is not liable to excise duty, attempt by Revenue to confirm and demand duty against appellant is patently illegal - Impugned order set aside - Appeal allowed with consequential relief. (Para 4-7)


M/s Sahu Refrigeration Industries Ltd Vs CCE & ST (Dated: May 5, 2015)

CX - Penalty - Allegation against assessee is that they have issued invoices but have not supplied excisable goods to facilitate M/s. Pawan Jain & Sons to avail inadmissible Cenvat Credit - It is clear from facts that assessee has not dealt with excisable goods for availment of inadmissible Cenvat Credit by M/s. Pawan Jain & Sons and merely issued invoices - The provision for person issuing invoices without supply of goods have come into force for imposition of penalty under Rule 26 of CER, 2002 w.e.f. 01.03.2007 and said provision was not instituted during relevant period - Therefore, assessee have not dealt with excisable goods - Penalties on both assessees are not imposable - Consequently impugned order is set aside and appeals allowed: CESTAT [Para 8, 9, 10]


Shivam Pressings Vs CCE (Dated: February 6, 2015)

CX - Rule 8(3A) of CER, 2002 - Appellant committing default in payment of duty and not making good the default - SCN issued for recovery of amount, interest and imposition of penalty - Commissioner(A) confirming demand of duty and interest but reducing penalty imposed u/r 25 of CER, 2002 - appeal to CESTAT citing the Gujarat High Court decision in Indsur Global - 2014-TIOL-2115-HC-AHM-CX and pleading that the order be set aside. Held: Hon'ble High Court of Gujarat has only declared ‘without utilizing the CENVAT credit' in Rule 8(3A) as unconstitutional - all other provisions of rule 8(3A) have been considered as correct and perfectly legitimate - this would imply that if assessee defaults in payment of duty beyond 30 days from the due date, the assessee shall be required to pay excise duty for each consignment at the time of removal till the date the assessee pays the outstanding amount including interest thereon and in the event of any failure it shall be deemed that such goods have been cleared without payment of duty and the consequences and penalties as provided shall follow - the appellant has not paid the duty consignment wise either through

CENVAT credit account or through PLA - obviously they have violated rule 8(3A) of CER, 2002 - since appellant has contravened the provisions of rule 25(1)(a) of CER, 2002, the goods cleared during the period are liable for confiscation and the appellant is liable to penalty not exceeding the duty on the excisable goods - keeping in view the fact that the duty involved is Rs.7,16,391/- and also keeping in view the number of days when the appellant was supposed to clear the goods consignment-wise, penalty of Rs.3,00,000/- imposed by Commissioner(A) is on the higher side and, therefore, same is reduced to Rs.50,000/- - Appeal partly allowed: CESTAT [para 4, 4.1, 4.2, 4.3]


CCE Vs Shree Chh Shahu SSK Ltd (Dated: February 6, 2015)

CX - In the Revenue appeal filed against order of Commissioner(A), the amount involved is less than Rs.5 lakhs - As per litigation policy of the Government vide Board letter F.No. 390/Misc/163/2010-JC dated 17.08.2011 and the judgments of the Gujarat & Karnataka High Courts, the appeal of Revenue is dismissed without going into the merits of the issue: CESTAT [para 2]


Smash Colour Prints And Packaging Pvt Ltd Vs CCE (Dated: March 13, 2015)

CX - Appellant manufacturing printed cartons, catch covers and wallets classifiable under 4819.19 and chargeable to duty - appellant manipulating invoices by indicating the correct description of goods on the first and second copy of invoice but in the third and fourth copy the description was changed so as to give the impression that the goods being cleared are exempt from payment of duty - inasmuch as first and second copy indica tes 'cartons' whereas the third and fourth indicated 'folders' - also goods manufactured by main appellant were shown as manufactured by other units controlled by the same family - CE duty demand confirmed and penalties etc. imposed - appeal to Tribunal. Held: Keeping in view that invoices were manipulated, it is a case of fraud and extended period of limitation is correctly invoked and is upheld; penalty u/s 11AC of CEA, 1944 and interest is also upheld - amount of duty, interest and penalty will be required to be quantified in those cases mentioned in Annexure II(B) where description given in all four copies are 'inserts' which are nothing but leaflets and not chargeable to duty as being a product of printing industry; claim of CENVAT credit allowed in interest of justice if duty paying documents produced - Penalties on other appellants viz. Managing Director/Director etc. are definitely not on the higher side as they have connived to evade payment of duty and were looking after day-to-day work and manipula tion of invoices was being done with their active knowledge, therefore, penalties upheld even after extending the claims for 'inserts' and CENVAT credit - Appeal disposed of: CESTAT [para 6, 7, 8]


Universal Chemicals And Industries Pvt Ltd Vs CCE (Dated: April 1, 2015)

CENVAT - Rule 2(l) of CCR, 2004 – Input Service - Garden Maintenance Service – Appellant is a manufacturer of chemicals – it is common knowledge that permission is granted to a chemical factory by Maharashtra Pollution Control Board subject to fulfilling the condition of planting number of trees as also to bring under green belt and for this purpose if the appellant requires or procures the services of a service provider for garden maintenance service and pays service tax, CENVAT credit on such amount cannot be denied – Credit admissible: CESTAT [para 4, 4.1]

CENVAT – House Keeping service – services are related to manufacturing activity – credit of tax paid on such service is admissible: CESTAT [para 5]


Smart Technology Systems Vs CCE & ST (Dated: January 5, 2015)

Central Excise - Fare meters used for taxis and auto rickshaws - Cannot be termed as parts, components or assembly of taxies - Good prima-facie case in favor of assessee - Since the appellant had already deposited the entire amount of service tax along with interest and 35% of the penalty, pre -deposit of balance due is waived. (Para 3, 4)


Tirupathi Udyog Ltd Vs CCE, C & ST (Dated: March 6, 2015)

Central Excise - Cenvat credit - Welding electrodes used for maintenance and repair of plant - Input eligibility and demand beyond normal period of limitation - Conflicting decisions - Matter pending before Larger bench of the Supreme Court - In view of several decision in favor of assessee for the period in question, appeal succeeds on point of limitation.


CCE Vs UPM Kymmene India Pvt Ltd (Dated: May 11, 2015)

CX - Cutting and slitting of jumbo rolls of imported self-adhesive film and self-adhesive paper as per requirement of customer does not amount to manufacture u/s 2(f) of CEA, 1944 - Assessee could not have paid duty on the same: CESTAT [para 12, 13, 15, 19]

Also see analysis of the Order


CCE Vs Rachitech Engineers Pvt Ltd (Dated: January 1, 2015)

CX - Notfn 6/2002-CE - Assessee are manufacturers of chimneys which are to be used as component of boilers for non-conventional energy system - No dispute that chimneys manufactured by assessee are meant for biomass burning boilers being manufactured by M/s. ISGEC John Thompson who in turn, supply such broilers to end-users for production of energy from waste - Since what is covered by Sl.No.237 of said Notfn is non-conventional energy devices/systems and since there is very thin distinction between part and device, as device is thing made for a particular purpose and since chimney being an integral part of biomass fired boiler can be treated as a device for non-conventional energy devices/systems, exemption under said Notfn would be available to chimneys - No merit in Revenue's appeal, same is dismissed: CESTAT [Para 5, 6]


M/s Salasar Steel And Power Ltd Vs CCE & C (Dated: January 27, 2015)

CX - Assessee are manufacturer of Sponge Iron chargeable to CE duty - M/s Gopal Steel is a commission agent dealing in iron and steel items - Records recovered from M/s Gopal Steel indicates sale of several consignments of sponge iron manufactured by assessee to various customers through him for which he had received commission - No inquiry has been made with customers mentioned in documents recovered from M/s Gopal Steel - Similarly, factory premises of assessee had also not been searched and as such there is no allegation of discrepancy in records of raw material or finished products - Entire case against assessee is based on records recovered from M/s Gopal

Steel and statements of Shri Gopal Krishna Agarwal but cross-examination of Shri Gopal Krishna Aggarwal, Proprietor of M/s Gopal Steel has not been allowed - Impugned order suffers from violation of principles of natural justice, same is set aside and matter is remanded to Commissioner for denovo adjudication after permitting cross examination of Shri Gopal Krishna Aggarwal and considering other pleas made by them: CESTAT [Para 6]


Shri Suresh Kumar Vs CCE (Dated: February 11, 2015)

CX - Exemption under notfn 5/06-CE - Assessee companies are manufacturers of footwear and supplying the shoes to Defence organisation at DGS&D rate and retail price of shoes so supplied is less than Rs. 250/- per pair - Supplies were being made by availing full duty exemption under said notfn - Only in one case, Director of assessee company had initially given the statement that price was not being printed or embossed but he has subsequently retracted his statement - Department has not recovered any consignment of shoes supplied to Defence organisations on which there is no MRP printed and as such there is absolutely no evidence that assessee were not complying with condition of said exemption notfn - Just because shoes were supplied to Defence organisation, which according to Department are institutional buyers it cannot be presumed that no MRP had been printed or embossed on footwear - Impugned orders denying benefit of said exemption Notfn are not sustainable, same are set aside and appeals are allowed: CESTAT [Para 6]


Sri Sai Ram Industrial Equipments Pvt Ltd Vs CCE, C & ST (Dated: January 8, 2015)

Central Excise -Extended period of limitation - Confirmation of excise duty by invoking longer period of limitation, without determining if the activity amounts to manufacture or not, more so when the appellant was admittedly discharging service tax liability with the due knowledge of the Revenue - Is unjustified - Since appellant admitted vis -à-vis certain manufacturers that having collected service tax from customers but not deposited with the department, directed to deposit Rs.30 Lakhs. (Para 4)


M/s Jindal Steel And Power Ltd Vs CCE (Dated: April 17, 2015)

CX - Assessee during period July, 2005 to May, 2006 supplied certa in iron & Steel angles channels Profile to M/s. L&T Ltd. which are made for use in Mega Power Project of M/s. Jindal Power Ltd. - Goods had been supplied against International Competitive Bidding at nil rate of duty under Notfn 6/02-CE - No dispute that power project for which goods have been supplied is an inter state thermal power project of capacity of 1000 Mega Watt and in this regard certificate has been given by Joint Secretary to Govt. of India, Ministry of Power - When a particular condition prescribed in Notfn 21/02-Cus. for full customs duty exemption is not applicable and for this reason, condition cannot be satisfied, its fulfilment cannot be insisted in accordance with principle of lex non cogit ad impossiblia - Denial of exemption under Notfn 6/02 -CE and 6/06-CE on the ground that goods imported would not be eligible for customs duty exemption under Notfn 21/02-Cus. is not correct - Condition of customs duty exemption which is being insisted is impossible to fulfill as same is not applicable: CESTAT


M/s Technocraft Industries (India) Ltd Vs CCE (Dated: April 24, 2015)

CX - Valuation - s.4 of CEA, 1944 - Appellant manufacturing goods on behalf of principal manufacturer - principal manufacturer supplying black pipes free of cost to appellant after availing CENVAT credit on such pipes - appellant using such black pipes in the manufacturing process (i.e galvanisation) and paid duty on his final product which in turn is used by principal manufacturer for further manufacture - Revenue taking a view that value of black pipes should be added for determination of AV. Held: Issue is decided in favour of appellant by Supreme Court in International Auto - 2005-TIOL-81-SC-CX-LB and which is followed in Ghatge Patil Industries - 2015-TIOL-31-SC-CX - appeal allowed: CESTAT [para 5]


Raghavendra Industries Vs CCE, C & ST (Dated: December 12, 2014)

Central Excise - Clandestine removal of goods - Demand and penalty - No proper records of inventory of new and old and repaired transformers maintained nor reconciliation statements supporting the clearances placed - No explanation forthcoming as to why purchasers had stated that they had purchased new transformers when they had actually taken old and repaired transformers - Assessee admitted of clearing new transformers without payment of duty - Further admitted that statements recorded contain no defence plea of undertaking the activity of repair and supply - Defence plea taken several years after investigation laid their case, liable to be rejected - Appeal having no merit deserves to be rejected - H owever the claim that the amount realized by assessee should be treated as cum -tax amount is justified - Matter is therefore remanded only to work out the quantum of duty by extending cum-tax benefit and to rework penalty on that basis. (Para 5)


CCE Vs Sri Rama Steels Ltd (Dated: May 6, 2015)

CX - Availment of CENVAT Credit on melting scrap - It is alleged that assessee have procured scrap from Delhi but Revenue failed to prove the same with cogent evidence that same has passed through various barriers particularly from Punjab Barrier of Sales Tax - No statement of transporters has been recorded to unearth the truth and payment of all scraps have been made by assessee through account of payee cheques - In absence of any cogent evidence against assessee, charge of availment of fraudulent CENVAT Credit on melting scrap on invoices is not sustainable: CESTAT

Differential duty and CENVAT Credit on imported melting scrap - Assessee has availed concessional rate of duty on condition of end user and produced certificate from Range Superintendent certifying that imported scrap had been used by assessee in manufacture of their final product - Said certificate cannot be denied by any authority in absence of any contrary evidence - Assessee are entitled for benefit of notfns as they have complied with conditions of notfns and not liable to pay differential custom duty and cannot be denied CENVAT Credit of CVD paid by them: CESTAT

Clandestine removal on strength of parallel invoices - Revenue failed to produce source of procurement of parallel invoices, they produced only photocopies - Merely, statement that they have received these photocopies of invoices from Excise and Tax Department of Himachal Pradesh, in absence of any documentary evidence, parallel invoices are no acceptable documents, therefore, duty cannot be demanded on fake invoices produced by Revenue: CESTAT


M/s Sakthi Sugars Ltd Vs CCE (Dated: February 6, 2015)

Central Excise - Penalty - credit of tax paid on GTA service was availed as input service for coal brought for power generation - dispute in first round whereupon non imposition of penalty under Sec 11AC agitated by Revenue resulted in the second round wherein penalty was imposed.

Held: Cenvat credit law is very complex in nature which has undergone amendment several time and was difficult to comprehend by a common man - Therefore, in absence of any finding showing evasion, imposition of penalty on it shall be unjustified. [Para 5].


Sealed Air (India) Pvt Ltd Vs CCE, ST & C (Dated: March 6, 2015)

Central Excise - Denial of Cenvat - Removal of finished goods from old factory premises on payment of duty to new premises where credit of duty paid was utilized and thereafter same goods were cleared after repacking - Process amounts to clearance of semi-finished goods - No irregularity in the procedure adopted by the appellant warranting denial of Cenvat credit - Appeal deserves to be allowed. (Para 2)

Central Excise - Availment of CENVAT credit on services used for trading and manufacture - Trading was not an exempted service during the relevant period in question - Appellant directed to reverse proportionate credit attributable to trading activity following the precedent in Orion Appliances Ltd. (Para 3, 4)


Jenious Clothing Pvt Ltd Vs CCE & ST (Dated: January 23, 2015)

Central Excise - Penalty proceedings - Delayed payment of entire defaulted amount - Show cause notice issued one year thereafter to impose penalty - In view of the fact that High Court of Gujarat has taken a view that Rule 8(3A) is ultra vires and provision of section 11A requires detailed consideration. (Para 3)


M/s Shyam Textile Mills Vs CCE & ST

CX - Whether original value of investment in plant and machinery of assessee is above Rs. 3 Crore or not for being eligible to voluntary Compounded Levy Scheme under provisions of Rule 96ZNA to 96ZND (Section - ExA) of CER, 1944 - Assessee filed required declaration as per provisions of Rule 96ZNB(1) of CER, 1944, which was duly certified by Chartered Accountant - Adjudicating authority, on basis of verification report of Deputy Commissioner, on his own, estimated original value of plant and machinery as more than Rs. three crores - Adjudicating authority can not sit over certification done by Chartered Accountant, as per Accounting Standards and decide value of plant and machinery as per his own verifications got made and best judgment - After issue of Notfn 32/2001-CE and 41/2001-CE, assessee gave a certificate in continuation of earlier ce rtification from same Chartered Accountant that valuation of fixed assets was done as per Accounting Standard.10 (AS-10) - Subsequent certificate given by Chartered Accountant to that effect can not be brushed aside by adjudicating authority to hold that he will determine value of plant and machinery himself - Appeal allowed: CESTAT


Beml Ltd Vs CCE, C & ST (Dated: January 01, 2015)

Central Excise - Cenvat Credit - Dutiable and Exempted goods - Credit attributable to exempted goods cleared - Failure to maintain separate account and non-exercise of option as required under Rule 6(3A) - Omission is merely procedural in nature - Pre-deposit waived. (Para 2)


M/s The Madras Aluminium Co Ltd Vs CCE & ST (Dated: May 12, 2015)

Central Excise - short issue involved in this appeal is whether "Aluminium Dross" emerging as product is excisable or not.

Held: Issue has already been settled by the Apex Court judgement in the case of Grasim Industries Ltd., and Bombay High Court decision in Hindalco Industries relying upon the former - ruling pronounced to the effect that the conditions contemplated under Section 2(d) and Section 2(f) have to be satisfied conjunctively in order to entail imposition of excise duty under Section 3 of the CE Act 1944; holding that even after amendment of Section 2(d) of Central Excise Act, the Apex Court decision is still valid - impugned order set aside. [Para 3]


Sunbeam Generators Pvt Ltd Vs CCE (Dated: May 13, 2015)

Central Excise - Exemption - appellants are engaged in the manufacture of Diesel Generating Sets and removed 2 Nos. of Diesel Engine to HCIL without payment of Central Excise duty by claiming exemption under Notification No.108/95-CE dt. 18.8.1995 based on the certificate issued by Rail Vikas Nigam Ltd., Govt of India - Exemption proposed to be denied in SCN, allowed by adjudicating authority, denied by Commissioner (Appeals) on Revenue's appeal; and agitated herein.

Held: Adjudicating authority in his OIO dropped proceedings by relying on Tribunal's order in the case of Cater Pillar India Ltd. whereas the Commissioner (Appeals) while allowing Revenue's appeal observed that Revenue has already filed appeal before the Chennai High Court - Chennai High Court in turn dismissed the Revenue's appeal by upholding Tribunal's order - Following the HC order, impugned order set aside.


Vinyl Chemicals Vs CCE (Dated: April 1, 2015)

CX - CENVAT - Input Service - Rule 2(l) of CCR, 2004 - Security Services rendered at factory premises and Rent-a-cab services hired for marketing staff to sell the products - it is a settled position of law that both the services are Input Services as they have nexus with the manufacturing of final product - Credit admissible - appeal allowed: CESTAT [para 4]


M/s Mahendra Sponge And Power Ltd Vs CCE & ST (Dated: April 30, 2015)

CX - Duty demand on insurance claim - Due to heavy rains, finished goods of assesee got damaged and they filed claim before insurance company for damaged goods and received compensation - In remand proceedings there were directions to Revenue also to tell the assessee under which provision revenue is seeking demand of duty on insurance claim - Both authorities unable to tell under which provision duty is payable before assessee on insurance claim received for damaged goods - As per Ratnatraya Heat Exchangers Ltd. 2011-TIOL-1538-CESTAT-MUM , demand is not sustainable: CESTAT [Para 9, 10]


M/s JSW Steel Ltd Vs CCE & ST (Dated: May 11, 2015)

Central Ex cise - CENVAT credit - issue relates to demand under Rule 6(3)(1) of Cenvat Credit Rules, 2004 on the clearance of metallurgical coke to their sister unit without payment of duty.

Held: Appellants have reversed the credit attributable to the quantum of inputs used in the manufacture of metallurgical coke and also proportionate amount of input service in their cenvat account and appropriated by Revenue - Consequent to the amendment of cenvat credit rules with retrospective effect vide Finance Act, 2010, if the appellants reversed the proportionate credit, question of demanding 'amount' equivalent to 10% of the value does not arise - impugned order set aside [Para 4]


CCE, C & ST Vs Vijayalaxmi Gears (Dated: February 20, 2015)

CX - Revenue in their memo of appeal has pleaded that the finding of the Tribunal is improper, erroneous, invalid, illegal and perverse since the same suffers from mis-consideration of the provisions of the Rule as well as misconstruing the relevant circulars issued in this behalf.

Held: Revenue using such language in their memo of appeal against an order of the Tribunal is not called for and the proper course available is to challenge the orders of the Tribunal before the higher appellate forums instead of criticizing the said orders by using improper language - Revenue Appeal rejected: CESTAT [para 3, 4]


Dynamatic Technologies Ltd Vs CCE, ST & C (Dated: March 6, 2015)

Central Excise - Reversal of Cenvat credit attributed to exempted goods - Appellant fulfilled the obligation cast under section 73 by making payment of proportionate duty along with interest - Provision does not postulate Commissioner to pass an order that the amount paid was correct - Absent communication from the Commissioner within the prescribed two months thereafter, matter is deemed to be considered as finalized in terms of section 73 - Appeal on ground of shortfall thereafter is not competent - Impugned order demanding demand 10% of the amount received by the appellant in respect of exempted hand-pumps upon fulfilling the mandated obligation, is unsustainable - Appeal allowed with consequential relief. (Para 6, 7)


B D Industries Vs CCE (Dated: March 19, 2015)

CE - Refund - Appellant had made pre -deposit as per stay order of Tribunal - later O -in-A set aside and appeal allowed - appellant having succeeded in appeal claimed refund of pre-deposit - adjudicating authority sanctioned the claim but in Revenue appeal Commissioner(A) held that the claim is hit by the doctrine of unjust enrichment - appeal to CESTAT. Held: Revenue is bound by its own Board's Circular which states that no refund claim needs to be filed for reclaiming an amount deposited on direction of appellate authority - appellant also having evidenced through certificate of C.A. that the amount has not been debited to Profit and Loss account as expenses and which certificate has not been disputed or controverted - In absence of any contradiction, question of doctrine of unjust enrichment will not come in the way - Question of holding back the amount by Revenue does not arise - Impugned order is set aside and appeal allowed: CESTAT [Para 6.1, 6.3, 7]


Rashtriya Chemicals & Fertilizers Ltd Vs CCE (Dated: May 07, 2015)

CX - Valuation - 40 year old matter - while determining the assessable value in respect of captively consumed goods, the proper officer has to make reasonable adjustments taking into consideration all relevant factors - Commissioner(A) should not place reliance on decisions without discussing as to how the factual situation fits in with the facts of the decision on which reliance is placed - Matter remanded: CESTAT [para 4, 6]



M/s Heranba Industries Ltd Vs CC & CE (Dated: March 04, 2015)

CX - Assessee had paid excess availment of credit before issue of SCN, and not contesting demand of said amount - Regarding demand of denial of CENVAT Credit of Rs.13,71,459.00, assessee had not produced original documents inspite of remand order and even before Tribunal - During course of hearing, after about 10 years, assessee just made submission before Tribunal that they have got original documents - No merit in submissions of assessee, so, demand of Rs. 13,71,459.00 is justified: CESTAT

CX - Interest - Assessee utilized credit as evident from CENVAT accounts and therefore, decision relied upon by assessee would not be applicable, hence, demand of interest is also justified: CESTAT

CX - Penalty - No material found to show that excess availment of credit was made with intention to evade payment of duty - Nature of availment of excess credit as revealed from statement of Smt. Beena Thomas, that in some cases, credit availed on assessable value to extent of Rs.1.04 Crores - Assessee had taken credit twice on same invoice - Fit case to impose penalty under Rule 15(1) of CCR, 2004 - Penalty on assessee 1 is reduced to Rs.10 lakhs and on other assessees are set aside: CESTAT


M/s Forder Technik India Pvt Ltd Vs CCE (Dated: February 16, 2015)

Central Excise - manufacture - appellant engaged in erection and installation of heavy storage racks in the premises of various companies for storage of industrial engineering goods; items fabricated on piecemeal basis and assembled at site -

Revenue viewed the same amounted to manufacture, attracting excise levy - Demands adjudicated and agitated herein.

Held : Nothing on record to show that appellant cleared the goods in piecemeal with the intention to cause evasion of duty - The components of racks were welded at site for housing heavy engineering goods therein - mere standing rack on the earth without being embedded thereto cannot accommodate heavy equipments for the storage in its bins; such proposition alone calls for holding the goods as immovable property - appellant although was principal manufacturer of manufactured rack components, that having been embedded to earth upon welding to fulfill contractual obligation and such racks became inseparable without causing damage thereto when detachment is contemplated, that rules out appellant's liability under Central Ex cise Act, 1944 - Appellant was not mere supplier of goods; It had concurrent liability of embedding the supplied goods duly to earth to call the same as heavy storage racks [Para 6, 7]


Agarwal Foundries Vs CCE, C & ST (Dated: March 05, 2015)

Central Excise - Cenvat Credit - Manufacturer of angles and ingots - Expenses incurred on Air conditioner and furniture installed in the factory - Allowed. (Para 2)


M/s Capital Transformer Pvt Ltd Vs CCE (Dated: April 1, 2015)

CX - Assessee are manufacturers of transformers and beside this, they also undertake repair of transformers returned to them by their customers - First point of dispute is regarding Cenvat credit of Rs. 5,31,031/- in respect of demand under Rule 16 of CER in respect of transformers returned to assessee for repairs - Objection of department is that CT numbers as recorded in RG-23A register in respect of returned transformers do not match with CT numbers as mentioned in respective invoices on basis of which the credit had been taken - Whatever credit has been taken by assessee, same has been reversed at the time of clearance of repaired goods - Moreover, no credit was taken of ports used in repair - Assessee has correctly taken the credit - As regards duty demand of Rs. 3,92,578/-, when SCN itself mentions, the goods in respect of which duty has been demanded, as non-excisable goods, fail to understand as to on what basis duty had been demanded, when difference between ER-1 return figure and balance sheet figure is on account of sale of non-excisable goods - The finding that repair of transformers amounts to manufacture is totally wrong finding in respect of clearance of repaired transformers no duty can be demanded, only Cenvat credit on cenvated parts used in repairs is required to be reversed - Duty demand of Rs. 3,92,578/- is not sustainable - Cenvat Credit cannot be denied and demand of duty is not sustainable - Appeals allowed: CESTAT


M/s Bharat Lithographing Co Pvt Ltd Vs CCE (Dated: December 8, 2014)

CX - Assessee engaged in manufacture and removal of excisable goods namely, Printed Wrappers cut to size falling under Chapter Sub-Heading, 4825.19. of CETA, 1985 - Revenue wants to classified under Chapter Sub-Heading, 4821.00 as 'Label' - Assessee vehemently argued that both Units are separate in law and also in fact, hence, clubbing the clearance of these Units is incorrect - Also that no detailed finding about their inter-se relationship had been recorded in impugned Order, but Commissioner on the basis of an earlier Order, had concluded that relationship

between these two assessees we re not at arm's length, and consequently, inferred that both these Units are one and the same - Allegation of clubbing of clearances needs to be examined in detail in light of evidences produced by both sides, which would be possible only at the time of disposal of appeals - Stay granted: CESTAT [Para 5]


M/s Alstom T & D India Ltd Vs LTU (Dated: March 25, 2015)

Central Excise - Exemption - appellants supplied circuit breakers, control panels and relays along with mandatory spares under International Competitive Bidding by availing Notification No.6/2006 dated 1.3.2006 - Demand of CENVAT Credit on mandatory spares - upheld by Commissioner (Appeals), and agitated commonly herein.

Held: Issue stands settled by the decision of this Tribunal in the appellant's own case vide Final Order No. 181 & 182/2012 dated 2.3.2012 and the Revenue has accepted the said order; following the same, impugned order set aside. [Para 5]


BSN Ltd Vs CCE & ST (Dated: March 25, 2015)

CX - Interest on delayed refund - Assessee has filed refund claims in March/April, 2002 - No Deficiency memo was issued to assessee for different refund claims and same has been accepted by department - Only on 11.10.2002, SCN has been issued whereas refund claim has been required to be entertained within three months from date of filing of refund claim, but nothing was done in three months - As per Ranbaxy Laboratories Ltd. 2011-TIOL-105-SC-CX , assessee is entitled to claim interest after three months from date of filing of refund claim till its realization: CESTAT [Para 6]


CCE, C & ST Vs Essar Oil Ltd (Dated: February 24, 2015)

CX - Input service credit denied on Outdoor Catering Service, Rent-a-cab service and Travel Agent Service - Both the authority below allowed the credit following various decisions of Tribunal - As per Ultratech Cement Ltd. 2010-TIOL-745-HC-MUM-ST , assessee is not eligible to avail the credit on Outdoor Catering Service on employees Share - Impugned order is modified to the extent the Cenvat Credit on Outdoor Catering Service is not admissible to assessee: CESTAT


M/s Trimurti Fragrance (P) Ltd Vs CCE (Dated: April 6, 2015)

CX - Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules 2008 - Appellant are manufacturer of retail pouches of Gutkha, Pan Masala and/Chewing Tobacco and discharged their duty liability - Dispute is in respect of months of March 2011 and July 2013 - Unit was closed from 1st March 2011 to 16th March 2011 and had functioned only from 17.03.2011 to 31.03.2011 - For claiming abatement, it is not necessary that assessee should pay duty for whole month and that the assessee would be required to pay proportionate duty only for the number of

days for which unit were functioning - Therefore, duty demand is prima facie not sustainable - Since the appellant had installed 4 new machines on 24.07.2013 for manufacture of new RSP of Rs. 4 per pouch, the 4th Proviso to Rule 9 of PMPM Rules would be applicable - Duty would be chargeable on prorata basis for remaining days in the month i.e., from 24.07.2013 to 31.07.2013, and as such duty demand confirmed by Commissioner on this basis would not be sustainable - Stay granted: CESTAT [Para 6, 7, 7.1, 8]


M/s Bajaj Healthcare Ltd Vs CCE (Dated: September 24, 2014)

CX - Rule 21 of CER, 2002 - Finished goods destroyed in fire - Remission of duty - expression " unavoidable accident" requires to be given a reasonable and liberal meaning lest the provisions are rendered altogether otiose - fire on account of short circuit has to be held as covered by the expression - appellant is eligible for claim of remission of duty: CESTAT



CCE Vs M/s Goyal Proteins Ltd (Dated: January 16, 2015)

CX-CENVAT-Rule 6 of CCR , 2002/2004-Acid oil emerges in the manufacture of refined vegetable oil and during the manufacture of Dextrose Monohydrate/Dextrose Anhydrous, a by-product viz. hydrol emerges-By-product Acid oil and Hydrol are exempted from duty-Respondents have availed cenvat credit in respect of input/input services used in the manufacture of these dutiable final products and exempted by-products-Revenue invoking provisions of rule 6 to demand 8% of sale value of exempted by-products-Commissioner(A) allowing appeals of assessee respondents, hence Revenue in appeal before CESTAT .

Held: It was impossible for the Respondents to maintain separate account and inventory of the inputs/input services meant for dutiable final products and exempted final products as this can be done only if two different final products, one dutiable and the other exempted are being manufactured consciously-When compliance of a provision is impossible, an assessee cannot be penalized for his failure to comply with the same-Lex non cogit ad impossibilia is a well settled legal principle -provisions of Rule 6(2) read with Rule 6(3)(b) of Cenvat Credit Rules, 2002/2004 would not be applicable in such cases when in course of manufacture of dutiable final products some exempted final products also emerge as inevitable by-product-no infirmity in order of Commissioner(A)-Revenue appeals dismissed: CESTAT [ para 8]


CCE Vs M/s Arvind Cotspin Kolhapur (Dated: March 4, 2015)

CX - Advance licence - Assessee, 100% EOU cleared consignments of cotton yarn in DTA by paying 8% duty under two release orders - Revenue's case is that the goods have been cleared in violation of Section 3 of CEA, 1944 and Notfn 82/92-CE and assessee is required to pay CE duty equal to aggregate of duties of customs leviable under provisions of Customs Act, 1962 - Commissioner(A) allowing appeal of assessee in respect of clearances under one release order and denying the other - Revenue and assessee were in appeal before CESTAT - Revenue appeal rejected and Assessee appeal remanded to Commissioner(A) - Commr(A) observing that DGFT had issued

Amendment Sheet whereby the said licence was endorsed for taking benefit of exemption under Notification No. 30/97-Cus dated 1/4/97; that said notification provides for full exemption from Customs duty as well as Additional duty; that as the above two duties are exempted, special Addl. Duty will also be exempted and, therefore, the entire clearances will be exempted and duty demand will not sustain - Revenue in appeal. Held: Issue involved is already decided by the Tribunal in appellant's own case holding that the status of advance release order is the same as that of advance licence and Notification No. 30/97 and 82/92 both are to be read harmoniously, and, therefore, supply made against advance release order should be treated as eligible for exemption from additional duty of customs also - No merit found in appeal of Revenue and hence same is dismissed: CESTAT [Para 2, 4]


Balkrishna Paper Mills Ltd Vs CCE (Dated: February 5, 2015)

CX - Appellants are manufacturers of paper and they were paying duty under notification 4/2006-CE by availing CENVAT credit - Revenue contention is that goods are covered under sr. no. 90 of the said notification which prescribes Nil rate of duty. Held: A bare reading of s.5A of CEA, 1944 indicates that a manufacturer will not have an option to pay the duty only where the goods are exempt and the exemption granted is "absolute" - in the present case, serial no. 90 has two conditions viz. limiting exemption for goods cleared for home consumption upto first clearances of an aggregate quantity not exceeding 3500 MT and the second condition of non-availment of notification 8/2003-CE - in view of the above mentioned two conditions it cannot be said that serial no. 90 provides ‘absolute exemption' - Appellant assessees cannot be forced to pay duty as per serial no. 90 of notification 4/2006-CE and they have the option to pay duty under other serial numbers viz. 91 and 93 - Appeals of assessees allowed and Revenue appeal dismissed: CESTAT [para 6, 7, 8]


Trimurti Fragrances Pvt Ltd Vs CCE (Dated: May 7, 2015)

CX - Factory of assessee was closed from 1st March, 2011 to 16th March, 2011 and had functioned only from 17.03.2011 to 31.03.2011 - Conditions for claiming abatement under Rule 10 of PMPM Rules are satisfied, that assessee had applied for rebate and that rebate is admissible - Assessee, instead of paying full duty for March, 2011 had paid only proportionate duty for period from 17th March, 2011 to 31st March, 2011 - For claiming abatement for period of closure of factory, depositing duty for whole month is not a pre -condition and that in such cases duty would be required to be paid only for number of days for which a factory was working - Since due date for payment of duty was 5th of month and assessee paid duty only on 21.03.2011, assessee in respect of net duty payable by them, would be liable to pay interest on it as per provisions of PMPM Rules for period of delay: CESTAT

CX - Assessee had used four new machines installed w.e.f. 24.07.2013 for manufacture of pouches of new RSP -Rs.4 per pouch, which was not being earlier manufactured by them, therefore, provisions of Proviso to Rule 9 would be squarely applicable - Therefore, in respect of these four machines, duty at the rate applicable for MRP of Rs.4 would be chargeable only for 8 days from 24th July to 31st July and not for entire month - Assessee have discharged duty liability on this basis only - Duty demand confirmed against assessee in this regard is not sustainable and has to be set aside: CESTAT


M/s IPCA Laboratories Ltd Vs CCE (Dated: May 6, 2015)

CX - Assessee used 6 common input services which are used in or in relation to manufacture of dutiable final product as well as exempted final product - Period of dispute is from May, 2007 to March 2008 - In view of retrospective amendment introduced by Finance Act, 2010, assessee were entitled to reverse proportionate cenvat credit attributable to quantum of input services used in or in relation to manufacture of exempted final product - Once, assessee have foregone proportionate cenvat credit in respect of input services used in or in relation of manufacture of exempted final product, they have to be treated as complied with provisions of sub Rule (3) of Rule 6 of CCR, 2004 and hence, there cannot be any demand of amount under Rule 6(3)(b) - Impugned order is not sustainable, same is set aside - Appeal allowed: CESTAT [Para 6, 6.1]


Ultra Tech Cement Ltd Vs CCE (Dated: March 17, 2015)

CENVAT - Rule 2(l) of CCR, 2004 - Security service received in residential colony and guest house; pest control service received in employees' residential colony; repair and maintenance of air coolers in residential colony; maintenance of river pump and security service received at guest house - appellant claiming CENVAT credit of ST paid on the above services as being in connection with the activity of manufacturing of Cement at a remote area - lower authorities denying the credit and, therefore, appellant before CESTAT. Held: It has been authoritatively held by the Bombay High Court in the case of Manikgarh Cement - 2010-TIOL-720-HC-MUM-ST that credit is not admissible on the "services" received at the residential colony - to that extent appeal fails - however, in respect of appeal E/321/2010 appellant has made out a case for service tax which is sought to be denied and which is beyond the limitation period - to that extent, appeal is allowed but demand within the limitation period is upheld along with interest - CENVAT credit since allowed on water pump, ST paid on maintenance of such pump is also allowed; ST paid on security service received at guest house is allowed in view of decision in L'Oreal India Pvt. Ltd. 2011-TIOL-95-CESTAT -MUM - since the issue involved is interpretation of provisions, question of imposition of penalty does not arise - Appeals partly allowed: CESTAT [para 6 to 7]


Maneesh Export (EOU) Vs CCE (Dated: May 18, 2015)

CX - Pre-deposit - Date of SCN and period involved is not relevant - substituted Section 35F will be applicable to all the appeals filed after the commencement of the FA, 2014 - since pre -deposit not made of 7.5%, appeals are not maintainable, hence dismissed: CESTAT [para 4.1, 5, 6.1, 7]



M/s R M Dhariwal (HUF) Vs CCE (Dated: April 15, 2015)

CX - Refund, Interest - s.11B, 11BB of CEA, 1944 - Appellant filed claim on 19/02/2009 for refund of Rs.90 lakhs paid by them as pre -deposit as per CESTAT direction - refund sanctioned on 30/09/2009 - appellant seeking interest on the delay but denied by lower authorities hence in appeal before CESTAT - sanctioning authority submitting that appellant filing claim along with self attested copy of TR-6 challan but what is required is departmental attested copies of TR-6 challan. Held: It is a settled law that if the refund is delayed beyond three months from the date of filing the application, revenue is under obligation to grant interest for delayed period - the sanctioning authority could have asked the appellant to submit attested copies within the time period of three months which he failed to do - appellant entitled for interest on refund claim for the period beyond three months from the date of filing application till sanction of claim - appeal allowed: CESTAT [para 4]


CCE Vs Metro Shoes Pvt Ltd (Dated: November 21, 2014)

CENVAT - Assessee is manufacturer and trader of footwear and ladies purses/bags - they are also trading in branded footwear of other companies like Adidas, Reebok, Liberty etc. - Credit denied of service tax in respect of services which are utilised beyond the place of removal and also in respect of service utilised in respect of traded goods either partially or fully - Commissioner(A) relying upon Tribunal's order dated 08.01.2008 in appellants' case - 2008-TIOL-417-CESTAT -MUM and allowing credit in respect of service tax paid by the service providers and charged to appellant till the sale of the goods from the retail showroom - however, service tax credit taken by the assessee in respect of the commission paid to retail agents in relation to branded trade-in goods which are not manufactured by the appellant was confirmed - Revenue in appeal against dropped portion of demand. Held: Issue is squarely covered in favour of respondent assessee by earlier order of Tribunal in assessee's own case - Department appeal dismissed - assessee entitled to consequential relief, if any: CESTAT [para 7]


Metal Temple Pvt Ltd Vs CCE (Dated: May 6, 2015)

CX - Rule 8(3A) of CER, 2002 - Appellant utilizing CENVAT credit during the period of default - duty paid along with interest - appellant contesting penalty imposed of Rs.6 lakhs under rule 25 of CER, 2002 - Gujarat High Court in the case of Indsur Global Ltd . - 2014-TIOL-2115-HC-AHM-CX has held Rule 8(3A) of CER, 2002 as unconstitutional and, therefore, the whole foundation of the present case gets demolished - Penalty imposed on the appellant does not survive - Penalty set aside and appeal allowed: CESTAT [para 5, 6]


Eastman Exports Global Clothing P Ltd Vs CCE (Dated: March 10, 2015)

Central Excise - Refund - Appellant, engaged in the manufacture and export of garments, availed input services credit on various services and claimed refund of the same under Rule 5 of CCR 2004 - Claims rejected in adjudication on the grounds that (a) The appellant claimed drawback as well as refund of cenvat credit unutilized; (b) The unutilised credit relating to the period prior to June 2006 is not admissible for refund; (c) The appellant having exported the goods under drawback claim, no bond was executed; and (d) Some of the cenvat credits were availed on the basis of debit note - Rejection of the refund is agitated herein.

Held : If there was claim of drawback of service tax and such drawback has been

paid, refund of cenvat credit of service tax shall not be allowed - when the drawback on service tax was not extended before 13.7.2006, claim thereof cannot be presumed - When there is no provision to disallow refund of the cenvat credit pertaining to service tax remaining unutilized and carried forward, the High Court of Bombay held in the WNS Global Service case that in the absence of any distinction in Rule 5 prior to 13.2.2006, appellant cannot be disentitled to claim of refund thereof hence entire carried forward credit remaining unutilized should be refunded [Para 7, 8]

If the appellant had made double claim, the authority should have brought in clear terms as to the amount whether claimed for the self-same period - allegation of double claim is ruled out - if the exports were made under drawback claim of service tax, then execution of bond shall receive consideration - adjudicating authority to examine the invoices relating to service tax paid to ascertain whether those were debit notes or real invoices [Para 9, 10, 11]


M/s Guardian Steels Pvt Ltd Vs CCE (Dated: September 25, 2014)

CX - Appellant have disclosed the clearance of "Mill scale powder/iron ash" clearly in ER-1 returns and claimed Nil rate of duty under notification no. 4/2006-CE - Appellant had also reversed @10%/5% under Rule 6(3) of CCR, 2004 as pointed out by Audit - Department seeking to deny the exemption and demanding CE duty - lower authorities confirming demand after appropriating amount reversed under rule 6 - appeal to CESTAT. Held: There is no suppression established on the part of the appellant - It is the duty of the department to verify the eligibility of exemption claimed by the appellant and determine whether the credit has been reversed or not - Extended period of time is not atracted - Penalty u/s 11AC of CEA, 1944 set aside - Appeal allowed in part with consequential relief: CESTAT [para 6]


M/s Trident Nariman Point Vs CCE (Dated: September 29, 2014)

CENVAT - Furnace oil used in hotel for generating steam which is used partly for manufacture of dutiable cakes, pastries, cookies & chocolates and also used in laundry, heating water supplied to hotel rooms - Credit deniable to the extent used in other than manufacture - as there is no suppression or fraud, penalty not imposable u/s 11AC - Appellant has already reversed CENVAT credit - Interest payable till the date duty was deposited or CENVAT Credit reversed - Appeal partly allowed: CESTAT



Total Oil India Pvt Ltd Vs CCE (Dated: April 17, 2015)

CX - Loss of goods in floods - in terms of proviso clause (a) of section 35B(1) of CEA, 1944, appeal against the order of Commissioner(A) does not lie before the Tribunal but before the Revisionary authority - Appellant concedes the said legal position but requests liberty be granted for filing revision application before appropriate forum. Held: When the case involved is loss of goods, appeal does not lie before Tribunal - appeal dismissed as non-maintainable with liberty granted to appellant to file revision application before Revisionary authority in terms of s.35EE of CEA, 1944: CESTAT [para 3]


Kamalakshi Finance Corporation Ltd Vs CCE (Dated: April 22, 2015)

CX - Refund - Self-adhesive PVC insulation tapes were cleared by appellant under protest by paying @25% BED & 5% SED as classification ordered by AC, CEX under heading 39.19 whereas the assessee sought classification under heading 85.46 @15% & 5% SED - matter finally settled in favour of appellant and they filed refund claim - refund sanctioned but transferred to Consumer Welfare Fund u/s 12C of CEA, 1944 on the ground of unjust enrichment - as appellant failed to establish before the Commissioner (A) that the amount of excise duty is not borne by them, rejection order upheld - appeal before CESTAT. Held: Only contention of the appellant is that during the period they were paying 25% duty and 15% duty, price remained the same and this proves that they have not passed on the burden of duty - When the goods were manufactured and cleared, the duty rates indicated in the invoices were 25% and the said amount was collected from the ultimate consumer - Under the circumstances, it cannot be said that the incidence of duty has not been passed on to the ultimate consumer and was borne by the appellant - no merit in appeal, hence dismissed: CESTAT [para 3, 4]


Bunty Foods (India) Pvt Ltd Vs CCE (Dated: April 7, 2015)

CX - Appellant manufacturing biscuits which are exempt from payment of duty - appellant availing CENVAT credit on the inputs used in manufacture of such biscuits - Revenue of the view that since biscuits were exempt, appellants are not eligible for availing CENVAT credit even if goods are exported - appeal to CESTAT. Held: Issue is already settled in favour of appellant by the Bombay High Court decision in Repro India Ltd. - 2007-TIOL-795-HC-MUM-CX - Appeals allowed with consequential relief: CESTAT [para 3, 4]


M/s Mahanagar Gas Ltd Vs CCE (Dated: February 25, 2015)

CENVAT - Debit note is at par with the documents prescribed under Rule 9(1) of Cenvat Credit Rules, 2004 - There is no dispute raised by the department that the service were received and same was accounted for in the books of account of the appellant - debit note containing all the details as required under the rule 9(2) of CCR, 2004 is valid document - appellant is entitled to take Cenvat credit on the debit note - Order set aside and appeal allowed: CESTAT [para 5]


M/s Adf Foods Ltd Vs CCE & C (Dated: March 10, 2015)

CENVAT - Refund - Rule 5 of CCR, 2004 r/w notification 5/2006-CE(NT) - for the quarter ending June, 2007 claim was filed on 04.07.2008 - Refund filed after statutory time limit of one year from the date of export is not admissible being time barred - contention of appellant that refund of accumulated CENVAT credit is neither claim of duty paid on export goods nor claim of duty paid on excisable materials used in the manufacture of export goods and hence provisions of s.11B is not applicable is not tenable in view of ruling of Madras High Court in case of GTN Engineering (I) Ltd. 2012-TIOL-369-HC-MAD-CX - order of Commissioner (A) is sustainable and same is upheld - appeal dismissed: CESTAT [para 6]


Air Pac Filters & Systems Pvt Ltd Vs CCE (Dated: April 17, 2015)

CENVAT - Appellant availed credit in respect of beams and angles which were not received in their factory premises but were used outside for the production of structures which are finally exported - Adjudicating authoirty confirming demand of Rs.85,599/-, interest and penalty of Rs.21,400/- - In revenue appeal, the penalty was enhanced to Rs.85,599/- and appeal of assessee was dismissed - assessee appeal before CESTAT. Held: When the final product of the appellant was decided to be manufactured on job work basis by the job worker, the input need not come to the factory of the appellant and in any case it has to be supplied to the job worker - no dispute that the inputs were purchased by the appellant and the goods were exported - appellant is legally entitled to avail credit - finding of Commissioner(A) is against the settled legal position and hence not sustainable - appeal allowed: CESTAT [para 5 to 7]


Cyan Formulators Pvt Ltd Vs CCE (Dated: April 21, 2015)

CX - s.35 of CEA, 1944 - Appeal filed before Commissioner(A) beyond the condonable period of 30 days - as held by the Supreme Court in the case of Singh Enterprises 2007-TIOL-231-SC-CX when the statute prescribes a particular period of limitation the same cannot be condoned even by the Supreme Court as that would render a specific provision providing for limitation rather otiose - no reason to interfere with the order of Commissioner(A) dismissing the appeal - appeal and stay petition dismissed: CESTAT [para 4, 5]


M/s Sound Tracks Vs CCE (Dated: March 17, 2015)

CX - Valuation - s.4 of CEA, 1944 - Recorded Audio cassettes - Revenue alleged that the transaction/sale between appellants and individual music company was not at arms length and hence the price at which the appellant sold the goods to music companies was not acceptable - Tribunal upholding order on merit but remanding the case to adjudicating authority for re -working of duty and penalty particularly for the reason that cost of pancake, magnetic tape has to be amortized with number of copies of existing tapes - said order of Tribunal not challenged further by appellant - in denovo adjudication Commissioner once again confirmed the demand of Rs.1,00,408/- and imposed penalty and interest by holding that duty was worked out after amortizing cost of master cassettes pancake over the number of cassette tapes made and hence the duty already worked out does not call for any interference - above fact not challenged by appellant - confirmation of duty demand is absolutely in order and does not require any interference - order upheld and appeal dismissed: CESTAT [para 5]


Bhor Industries Ltd Vs CCE (Dated: April 24, 2015)

CX - Refund - PVC insulated tapes were manufactured by Kamalakshi Finance Corporation Ltd. on behalf of appellant - Revenue classified the same under Heading 3919 attracting BED @25% whereas Kamalakshi Finance Corpn. Ltd. classified it under Heading 8546 @15% BED - matter finally decided by classifying under Heading 8546 - consequently appellant filed a refund claim but the same was rejected besides other things, on limitation - appeal before CESTAT. Held: It is not in dispute that the

appellant has filed refund claim much after the time limit prescribed under the law - appellant claiming that since Kamalakshi Finance had paid duty under protest the same would be applicable to them too - Supreme Court in the case of Allied Photographic s - 2004-TIOL-27-SC-CX has held that the decision of the Division Bench in case of National Winder - 2003-TIOL-43-SC-CX holding that if duty is paid by a manufacturer under protest then the limita tion of six months will not apply to a claim of refund by purchaser is per incuriam - in view of the same, there is no merit in the contention of the appellant that the refund claim has been filed within the prescribed time limit - question of locus standi of appellant as well as doctrine of unjust enrichment not gone into - appeal dismissed: CESTAT [para 6, 7]


CCE Vs JCB India Ltd (Dated: May 18, 2015)

CX - s.35B of CEA, 1944 - Matter relates to rebate of duty of excise on goods exported - against order of Commissioner(A), appeal filed before the CESTAT is not maintainable as Tribunal does not have jurisdiction to entertain the same - Revenue at liberty to file appeal before appropriate forum: CESTAT [para 3]



CCE Vs M/s Vip Industries Ltd (Dated: April 07, 2015)

CENVAT - Rule 2(l) of CCR, 2004 - Services of Gardening - as gardening is essential under Pollution control laws to maintain quality of ambient air the same is necessarily business related expenses for the manufacturer - Credit admissible - Revenue appeal dismissed: CESTAT [para 2]


Sony Dadc Manufacturing India Pvt Ltd Vs CCE (Dated: April 06, 2015)

CE - Appellant engaged in replicating certain Microsoft software on CDs/DVDs and clearing the goods without payment of duty by claiming exemption in terms of s.no. 27 of notification 6/2006-CE - Revenue denying exemption by holding that the said entry covers any customized software other than packaged software or canned software - appeal to CESTAT. Held: Prima facie applicant does not have any case on merits as the work of replicating and that also in large quantities will not be relating to customized software - such software has been developed by Microsoft and are used in computer system by various O.E manufacturers and other customers - in such a situation, software cannot be called ‘customized software' so as to be entitled for benefit of exemption notification 6/2006-CE - applicant will be required to pay duty on the said goods - royalty is a contentious issue and will be gone through at the time of final hearing - applicant directed to deposit an amount of Rs.50 lakhs and report compliance: CESTAT [para 4, 6]


M/s Meneta Automotive Components Pvt Ltd Vs CC & ST (Dated: March 18, 2015)

CX - Assessee, 100% EOU engaged in manufacture of an automobile part chargeable to CE duty - In course of manufacture of Anti Noise Shims from HR Coils, Steel waste arises, entire quantity of which was being cleared into DTA - As regards to calculation

of education cess and S&H cess, issue stands settled in favour of assessee by Larger Bench judgment of Tribunal in case of Kumar Arch Tech Pvt. Ltd. 2013-TIOL-614-CESTAT -DEL-LB - Part of duty demand based on this issue is not sustainable and has to be set aside: CESTAT

Exemption from Basic Customs Duty under Notfn 21/02-CUS (SI. No. 200) - If some goods imported into India are fully and unconditionally exempt from Basic Customs Duty by some exemption notfn, while calculating CE Duty leviable on DTA clearances of those goods, Basic Customs Duty would have to be taken as nil, even if those DTA clearances are not in accordance with conditions prescribed in para 6.8 of FTP - As per Indo Deutsche Trade Links 2014-TIOL-925-CESTAT -MAD , nature of scrap cannot be determined on basis as to whether it has been sold to actual users or dealers, as only use to which Iron and Steel Scrap can be put, is by melting the same to make some other Iron and Steel products - Part of impugned order confirming duty demand on basis of denial of exemption under Notfn 21/02-CUS in respect of Basic Customs Duty is not sustainable and same has to be set aside: CESTAT

Since on goods sold into DTA, VAT has been paid, conditions of exemption Notfn 102/2007-CUS as applicable to DTA clearances of 100% EOU, have been substantially satisfied and hence goods would be fully exempt from SAD as benefit of notfn cannot be denied in respect of DTA clearances of a 100% EOU if condition as applicable mutatis mutandis to DTA sales are satisfied - Duty demand based on this issue is also not sustainable: CESTAT


M/s Indian Oil Corporation Ltd Vs CCE (Dated: February 25, 2015)

CE - Appellant took CENVAT credit of Education Cess paid on Basic Customs duty which is inadmissible - on being pointed out by Audit, appellant reversed the same along with interest - since the appellant without contesting and without protest paid the wrongly availed credit along with interest, their case is squarely covered by sub-section (2B) of section 11A of CEA, 1944 and according to which Revenue should not have issued SCN - consequently penalty should not have been imposed - Payment of CENVAT and interest is upheld but Penalty not sustainable - Appeal partly allowed: CESTAT


CCE Vs Genom Biotech Pvt Ltd (Dated: April 25, 2015)

CE - Refund - Rule 5 of CCR, 2004 - Refund of the amount of service tax paid on the services of commission agent who was rendering the services to the assessee for the sale of goods abroad is not admissible as service rendered by the commission agents not being analogous to the activities mentioned in the definition of Input service rule 2(l) of CCR, 2004, would not fall within the ambit of the expression "activities relating to business" - issue is no more open for agitation in view of Gujarat High Court decision in Cadila Healthcare Ltd. - 2013-TIOL-12-HC-AHM-ST - Order of Commissioner(A) allowing refund set aside & Revenue appeal allowed: CESTAT [para 5, 6, 7]


Candico (I) Ltd Vs CCE & C (Dated: April 06, 2015)

CE - Valuation - s.4 of CEA, 1944 - Appellant is a manufacturer of confectionery items which are sold from depot - appellant clearing goods on Transaction Value u/s 4 of

CEA, 1944 and was recovering freight amount incurred from factory to depot from their customers but was not including the same in the T.V. Held: Appellant has no case on merits as duty is required to be paid inclusive of freight amount - issue of another SCN for the same period demanding duty u/s 4A of CEA, 1944 does not affect the present SCN - question of invoking extended period of time is a matter of fact and law combined together and will have to be gone through at the time of final hearing - keeping in view the financial condition, applicant directed to deposit 25% of the duty demanded, minus duty already deposited, in cash: CESTAT [para 4]


Godfrey Phillips India Ltd Vs CCE (Dated: March 26, 2015)

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 and not from 17.3.2012 - Provisional Collection of Taxes Act, 1931 does not provide for recovery of any dues when the rates are amended upwards subsequent to the introduction of the bill - Dispute squarely covered by Board Circular 981/5/2014-CX dated 11.2.2014 - Demands set aside & Appeals allowed: CESTAT [para 2, 5]


Jaiswal Industries Vs CC, CE & ST (Dated: January 9, 2015) CX - SSI exemption - Assessee are manufacturers of PVC pipes chargeable to CE duty, raw material for which is PVC granules - Appellant during period of dispute had neither taken CE registration nor were paying duty, claiming that their clearances are fully within SSI exemption limit - Challan book recovered from factory shows that the clearances during period 06.05.2011 to 18.10.2011 had exceeded the SSI exemption limit and duty involved on these clearances would be at least Rs.10.00 to 12.00 Lakhs - Though duty demand cannot be confirmed merely on the basis of power consumption, challan book indicates that the value of clearances of assessee unit may be far in excess of SSI limit - Assessee is directed to deposit Rs.25.00 Lakhs for compliance with provisions of section 35 F of CEA, 1944: CESTAT [Para 6]


CCE, ST & C Vs Indian Oil Corporation Ltd (Dated: March 5, 2015) Central Excise - Motor Spirit - Sanction of refund by Commissioner (A) - Appeal against - Omission to declare assessee's intention of availing concessional rate of duty to the department prior to obtaining motor spirit and obtaining the registration certificate thereafter - Whether disentitles to claim refund - Held on facts, that findings of the Commissioner that the issue as to whether without following procedure prescribed under the Rules disentitles assessee to claim the benefit or not and that that procedure relating to registration was held to be unnecessary has already attained finality without being challenged - Further more as there was no change in the price, Commissioner (A) rightly viewed that there was no unjust enrichment - Revenue appeals lack merit hence rejected. (Para 5, 6)


CCE, C & ST Vs Jindal Stainless Ltd (Dated: December 12, 2014)

Central Excise - CENVAT credit of duty paid on MS Plates, Sheets, Angles, Rounds - Used in conjunction with certain capital goods/machinery for maintenance of machinery - Admissible - No infirmity in the order of Commissioner (A) allowing credit - Revenue appeal has no merit as such is rejected. (Para 6, 7)


M/s J J Packagers Pvt Ltd Vs CCE (Dated: January 28, 2015) CX - HDPE Caps - Duty demanded on 30,23,345 HDPE Caps alleged to have been cleared without payment of duty during period 1999-2000, 2001-2002 - Details about these clearances had been supplied by appellant company himself - Appellant have submitted job work challans and job work records, that same had been manufactured on job work basis, out of raw material supplied by principal manufacturer and had been returned to them under job work challans - Matter remanded to original adjudicating authority for de novo adjudication: CESTAT

CX - Confiscation - HDPE waste being meant for recycling and also exempt from duty under notfn 67/95-CE had not been be accounted for in RG-1 register and hence, confiscation is set aside - Unaccounted raw material cannot be confiscated under Rule 25 and as such confiscation of HDPE Granules is also not sustainable - HDPE caps were in fully finished condition and same had not been accounted for in RG-1 Register, same had been correctly confiscated - Redemption fine is reduced to Rs. 20,000/- and penalty is reduced to Rs. 5,000/-: CESTAT


J K Lakshmi Cement Ltd Vs CCE & ST (Dated: March 25, 2015) CX - Assessee utilized their cenvat credit account for payment of output transportation service - Revenue sought to deny utilization of cenvat credit account for payment of output transportation service and relied on CBEC Circular 97/8/2007 - Period in dispute is March, 2006 to March, 2007 and CBEC has issued said Circular only on 23.08.2007 which is after the period in dispute - Therefore, said circular have no relevance to facts of this case - It is not in dispute that assessee has paid ST by availing cenvat credit as well as in cash - Suo moto credit can be taken by assessee of duty paid twice or excess - Appeal allowed: CESTAT [Para 7, 9, 10]


M/s JSW Steel Ltd Vs CCE (Dated: November 7, 2014)

Central Excise - CENVAT credit - appellants are manufacturers of "Iron and Steel" and availed 100% MODVAT credit on the item "Runner Mass" - Revenue viewed the impugned item (runner mass) is not an input for manufacture of final products but it is used in the runner path of the blast furnace; and that it is a capital good - demand for recovery of excess availed 50% credit confirmed with interest and penalty, upheld by Commissioner (Appeals), and agitated herein.

Held: Runner mass is used only in the runner path which is located outside the blast furnace ie., from the mouth of the blast furnace to the ladle; hence it cannot be considered to be a part of the blast furnace - The 'runner mass' is coated on the flow path of the runner path which aids smooth flow of the molten metal and is only applied on the runner path; the same cannot be considered as part of the blast furnace ie.(capital goods) - Apex Court decision in the Escorts Mahle case is squarely applicable to the facts of the present case where the runner mass is not even used inside the furnace but it is used in the runner path which allows smooth flow of the

molten metal - therefore, the credit availed by the appellants as inputs is valid - appellants are eligible to avail 100% credit on the 'runner mass' as inputs - the impugned order is set aside. [Para 5, 6, 8]


Hinduja Foundries Ltd Vs CCE (Dated: March 20, 2015)

Central Excise - Stay / dispensation of pre deposit - CENVAT credit - issue relates to denial of capital goods credit on the spare parts, purchased for replacement of the damaged parts caused due to a fire accident in 2006.

Held: Impugned credit was disallowed only on the premise that the original equipment was purchased in 1991 where no credit scheme was in force - Prima facie, no such provision in Cenvat rules for denial of capital goods credit on the parts imported for replacement, particularly during that period original equipments were not covered under modvat scheme - Compensation scheme from the insurance company has no relevance for availment of credit on capital goods purchased in 2006 - appellants have made out a case for waiver of predeposit of demand in question; predeposit of dues arising out of the impugned order is waived and recovery thereof stayed during pendency of appeal. [Para 4]


CCE & ST Vs M/s Asim Enterprises (Dated: January 19, 2015) CX - M/s Vipul Steel & Agro Industries had not challenged Adjudication order in respect of demand of MODVAT Credit - Registered dealers, the assessees, took the stand before Adjudicating Authority that they supplied material to M/s DCM Engineering Products - Proceedings against M/s DCM Engineering Products was dropped by Adjudicating Authority - As regards imposition of penalty on registered dealers, revenue's appeal rejected - Regarding penalty on Shri Pramodhan Singh, Authorised Signatory of said unit, Adjudicating Authority has already imposed penalty on said unit under Section 11AC of CEA, 1944 - It is noted that Shri Pramodhan Singh is an employee of said unit and separate penalty on Authorised Signatory is not warranted: CESTAT


Dy. Chief Manager, (Printing & Stationery), Central Railway Vs CCE (Dated: May 6, 2015)

CX- Rs.12 crores CX duty demand on CR Printing Press - Goods being printed with name and details of Central Railway is not capable of being bought and sold for consideration hence the same is not marketable goods - product in question are not dutiable on both counts of classification as well as marketability - appeals allowed with consequential relief: CESTAT [para 5]



M/s Birla Corporation Ltd Vs CCE & ST (Dated: April 21, 2015) CX - Assessee received certain inputs from a 100% EOU for use in manufacture of their finished product which were cleared by 100% EOU on payment of duty in terms

of proviso to section 3(1) of CEA, 1944 read with Exemption notfn 23/03-CE - In terms of said proviso, though excise duty paid by 100% EOU on its DTA clearances, has a basic custom duty component also, cenvat credit is admissible only of Additional Customs Duty portion payable on goods under section 3(1) of CTA, 1975 plus SAD payable under section 3(5) of CTA and Secondary and Higher Education Cess - Thus, DTA unit would not be entitled for cenvat credit of basic customs duty - Assessee is directed to deposit an amount of Rs. 1.5 Lakhs: CESTAT


M/s BSNL Vs CCE (Dated: April 15, 2015) CX - Whether assembly, installation and commissioning of switching system along with power plant and inverter would amount to manufacture - There is no dispute that assessee have purchased switching systems - Main component of a telephone exchange is switching system which is an electrical apparatus for line telephony - Power plant and inverter are only auxiliary equipments - Power plant supplies 48V DC current for functioning the switching system and inverter is required for standby period in case of power break down - Thus, goods which have been purchased-Switching systems have remained switching systems only even after installation and no new commodity with distinct commercial identity or character or use has emerged - Impugned orders are not sustainable, same are set aside - Appeals allowed: CESTAT


M/s Aurobindo Pharma Ltd Vs CCE (Dated: March 6, 2015) Central Excise - CENVAT credit - availment of credit earned by one unit by another unit of the same company is under dispute herein.

Held: The basic principle of Cenvat credit being to avoid cascading effect, genuine credit earned by one unit is not disallowed for set off against liability of other in absence of any prohibition thereto by law - Ratio of Karnataka High Court ruling in ECOF Industries applicable, subject to caveat that the manner of distribution of credit should not be contrary to Rule 7 of the Cenvat Credit Rules, 2004. [Para 4]


M/s L G Balakrishnan & Bros Ltd Vs CCE (Dated: March 13, 2015) Central Excise - CENVAT credit - Appellant availed capital goods credit as per invoice value, but at the time of removal of the capital goods they have reversed the credit as per the transaction value - demand for recovery of differential credit with equal penalty adjudicated, upheld by Commissioner (Appeals), and agitated herein.

Held: In view of the Tribunal's LB decision in the Navodaya Plastic Industries case, the appellants are eligible for depreciation on the value of capital goods as per Board's Circular dated 01.07.2002 - appellant has already paid the differential credit as per depreciation formula given in the said Board's Circular - Since they have paid the differential amount and interest before adjudication, there is justification for waiver of penalty [Para 5]


CCE Vs Vishnu Paper Products Pvt Ltd (Dated: March 19, 2015)

Central Excise - CENVAT credit - adjudicating authority confirmed the demand for recovery of ineligible cenvat credit with interest and imposed penalty equal to the demand under Rule 13 of Cenvat Credit Rules, 2002 read with Section 11AC of the Central Excise Act, apart from penalty under Rule 13 of CCR 2002 - lower appellate authority vide impugned order partly upheld the order to the extent of credit availed on the capital goods and penalty in respect of simultaneous availment of cenvat credit and depreciation from Income Tax on the ground that they have produced revised IT returns for the years 2000-01 and 2001-02 and original return for 2002-03 - Revenue filed appeal against that portion order of the Commissioner (Appeals) remanding the case to the lower authority on the simultaneous availment of cenvat credit and deprecia tion.

Held: Short issue in this appeal is simultaneous availment of modvat credit as well as claiming depreciation under the Income Tax Act - clearly brought out in adjudication order that respondent filed declaration under Rule 4 (4) of CCR; that they have not claimed any depreciation; that respondents have not claimed depreciation in their IT return for the year 2001-02 on that part of the value representing duty on the capital goods - facts are clearly discussed by the adjudicating authority in his order; therefore, it is evident that appellate authority remanded the case to the original authority only on the ground that respondents have filed revised returns without any discussion - Karnataka HC in Suprajit Engineering case clearly held that once the assessed claimed depreciation under Income Tax Act, he is not eligible for cenvat credit even if they have filed revised returns - Division bench of Tribunal in Gujarat Alkalies & Chemicals held that when an assessee claimed depreciation and also availed modvat credit, he is not eligible to avail credit - impugned order set aside and OIO restored. [Para 6]


Pearl Drinks Ltd Vs CCE (Dated: February 26, 2015)

CX - Assessee is a manufacture of aerated water and during the period 10.10.2000 to 7.3.2003, they procured sugar from first stage dealer of manufacturer of sugar - Whether assessee is entitled to take Cenvat credit on invoices issued by first stage dealer for period 10.10.2000 to 7.3.2003 - Dispute of availment of Additional Excise Duty paid prior to period 1.3.2003 and same issue was before High Court of Delhi in assessee's own case wherein period was 1.4.2000 to 9.10.2000 i.e. prior to 1.3.2003, wherein Commissioner (A) has held that invoices issued by first stage dealer for payment of AED, assessee is entitled to take Cenvat credit - CBEC circular 700/16/2003 clarifies the same that if AED has been paid prior to 1.3.2003, same can be utilized for payment of subsequent period after 1.3.2003 - Assessee has correctly taken Cenvat credit - impugned order is set aside and appeal allowed: CESTAT [Para 2, 8]


Veena Industries Ltd Vs CCE & ST (Dated: January 13, 2015) CX - Only basis of duty demands against assessee is that during the period of default beyond 30 days from due date, the assessee were required to pay duty on clearances during that period without utilizing Cenvat credit - As per Indsur Global Ltd. 2014-TIOL-2115-HC-AHM-CX , condition contained in sub-rule (3A) of Rule 8 of CER, 2002 regarding payment of duty without utilizing Cenvat credit during the forfeiture period till the assessee pays the outstanding amount including interest is unconstitutional and, therefore, the portion "without utilizing the Cenvat credit" in sub-rule (3A) of Rule 8 shall be rendered invalid - Stay granted: CESTAT


M/s Vikrant Auto Industries Vs CCE (Dated: March 25, 2015 ) Central Excise - Stay / dispensation of pre deposit - Rule 8(3A) of CER 2002 - Appellant paid duty for Apr 2012 partly from PLA and partly from cenvat account - Since the forfeiture period had started from 06.06.2012 which continued till 18.12.2012, the Department was of the view that during this period the duty in respect of all the clearances made should have been made paid through PLA without utilizing the cenvat credit; that they must pay this duty through PLA and once they pay this duty through PLA, they can make a reverse entry in the cenvat credit account - demand adjudicated with interest and penalty and agitated herein - Stay order dated 26.11.2014 passed with directions to pre deposit the duty demand and reverse the credit, in terms of the Uniroll ruling - miscellaneous application filed, praying for modification of the same in terms of the Indusar Global ruling.

Held: Madras HC in the Uniroll case held that when the failure to discharge monthly liability for a particular month continues the period of one month from the due date, the provisions of Rule 8(3A) become applicable and in terms of the provision of this sub-rule, the duty in respect of the clearances made during such period, would be required to be paid through cash without utilizing the cenvat credit - The Uniroll ruling had not gone into the question of constitutionality of this provision, while Gujarat High Court in the case of Indusar Global has gone into the question of constitutionality of this provision and has held that Rule 8(3A), applicable for period of default beyond the period of one month from the due date, the payment of duty without utilizing the cenvat credit, is unconstitutional - On the question of constitutionality of the provision of Rule 8(3A) there is no contrary judgment of any other High Court and, therefore, the Indusar Global would be binding on this Tribunal and in view of the Larger Bench judgment of the Tribunal in the case of Hindustan Lever Ltd, the stay order dated 26.11.2014 would be treated as suffering from a mistake apparent from record which would need rectification [Para 5]

One of the grounds raised in the appeal was that there was no intention on the part of the appellant not to discharge full duty liability for April 2012 inasmuch as while the shortfall in payment was to the extent of Rs. 2 Lakh, at that time they had cenvat credit balance amount of Rs. 3.3 Lakh - though this point had been raised in the grounds of appeal but the same had not been considered - keeping in view the Gujarat High Court in the case of Indusar Global Ltd., the appellant have prima facie case in their favour - Accordingly, the pre -deposit of the duty demand, interest and penalty is waived for hearing of the appeal and recovery thereof is stayed. [Para 7, 8]


CCE Vs M/s The Supreme Industries Ltd (Dated: February 12, 2015) Central Excise - Valuation - inclusion of trade discount allowed at different rates to different buyers in the value for assessment to duty is under dispute herein, with Revenue claiming that the impugned amounts represented commission.

Held: Issue of inclusion of trade discount settled by Tribunal in the respondent's favor, considering limitation and merits; no further dilation necessary. [Para 6, 8]

Order of an appellate authority to meet judicial scrutiny should be in clear terms, stating what is the matter in controversy before him, the points for his decision, the facts in issue, evidence tested, law applicable and reasons for the decision as well as his decision thereon - This is the mandate of section 35(4) of the Central Excise Act, 1944 and similar provision enacted in Customs Act, 1962 - Any deviation to such process, makes an order cryptic, unreasoned and non-speaking - Apex Court provided guidelines at Para 7 of the ruling in JCIT Vs Saheli Leasing and Industries, a nd it is hoped that orders passed by appellate authorities shall emanate in the manner directed therein. [Para 9, 10]


Tata Marcopolo Motors Ltd Vs CCE, C & ST (Dated: January 7, 2015) Central Excise - Fabricating body on duty paid chassis - Excess payment - Set off - Adjustments for neutralizing the demand of duty is permissible - Such adjustment between the excess paid duty and less paid duty does not amount to refund of duty - Evidence on record indicates that appellant have paid Rs.2 Crores excess duty on all clearances during the relevant period in question and such excesses have to be taken into account for confirming the demand of duty in terms of the provisions of Rule 10A of Central Excise Valuation Rules - Considering demand that is within limitation and excess paid duty, balance demand due has already been deposited by reversing the credit entry - Prima-facie case in favor of assessee - Pre-deposit of balance amount of duty, interest and penalty waived. (Para 5-8)


M/s Bangalore Plastics Pvt Ltd Vs CCE (Dated: January 5, 2015) Central Excise - Valuation - Appellant manufactures plastic mould furniture for Principal manufacturer who supplies the mould - Assessable value of the final product is inclusive of cost of mould - Final goods are transferred to depots of the Principal who sells to the ultimate customers - Whether appellant is liable to pay excise duty on final sale value charged to the customers - On identical set of facts, Tribunal has dispensed with pre-deposit and ordered unconditional stay - Following the decision, appellant is granted unconditional stay - Impugned order of Commissioner (A) dismissing appeal for non-compliance of stay order and imposing penalty, set aside - Matter remanded to Commissioner (A) to hear the appeal without insisting for pre-deposit. (Para 3, 4)


Mangaldas K Patel Vs CCE (Dated: April 7, 2015) CX - Rebate Fraud of Rs.11.61 crores - Penalty of Rs.1 crore on Supdt. CEX - It may be true that the applicant is out of job for some period, however, this cannot imply that the applicant has no means - Pre-deposit ordered of Rs.5 lakhs: CESTAT


2015-TIOL-998-CESTAT -MUM

Samrudhi Sugars Ltd Vs CCE (Dated: March 11, 2015) CX - CENVAT - Appellant was setting up a new unit and in that context had availed credit on many items and even though demand was initially for Rs.60.27 lakhs the Commissioner has confirmed only an amount of Rs.13.34 lakhs - appeal to CESTAT. Held: It is seen that the items are falling under Chapter 73 of the CETA, 1985 and are in the nature of inputs used in the manufacture of supporting structures of capital goods - keeping in view the nature of dispute as also the fact that on being pointed out the appellants have reversed the CENVAT credit and also paid interest and are not pressing the demand, the ingredients of section 11AC of CEA, 1944 are missing - penalty imposed is set aside & appeal is disposed of: CESTAT [para 5, 6]


M/s Nilesh Steel & Alloys Pvt Ltd Vs CCE (Dated: February 24, 2015) CX - Statements recorded after issue of demand notice - Demand of duty confirmed by CCE - copy of statements of 14 parties not provided to appellant - gross violation of principles of natural justice - stay granted - adjudicating authority to supply copies of all statements and other evidences on the basis of which demand is to be sustained - thereafter following principles of natural justice, including hearing or cross examination, adjudicating authority to decide the case - Matter remanded: CESTAT [para 4]

2015-TIOL-996-CESTAT -DEL

M/s Aditya Polysack Pvt Ltd Vs CCE & ST (Dated: March 17, 2015) CX - Inputs Services Credit availed on the strength of debit notes which are having complete details for availment of Cenvat Credit as per Rule 9 of CCR, 2004 - As per Elecon Information Technology Ltd. 2014-TIOL-1139-CESTAT -AHM , if in debit note, all the details have been mentioned to avail Cenvat Credit, then assessee is entitled to take Cenvat Credit - When there is no dispute that ST has been paid, therefore, issue is no more res integra - Appeal allowed: CESTAT [Para 5, 6]


M/s Vishnu Chemicals Vs CCE & ST (Dated: January 12, 2015)

CX - Appellant's unit located at Bhilai is engaged in the manufacture of switchgear equipment whose corporate office is located at Hyderabad where two more factories of same company manufacturing the same product - There is another factory of same appellant company located at Vizag manufacturing same product - The dispute is in respect of cenvat credit availed by Bhilai Unit on the basis of invoices distributing the cenvat credit as input service distributor issued by appellant company Head Office at Hyderabad - Till 31.3.2012, there was no provision that the cenvat credit distributed by the Head Office as input service distributor should be in proportion to the turnover of the factories located at various places - During the period till 31.3.2012, there was no irregularity in issuing of ISD invoices by the Head Office to appellant company passing on cenvat credit in respect of service which may have been used exclusively by Vizag Unit - Appellant unit would not be eligible for cenvat credit in respect of invoices issued by Head Office during the period w.e.f. 1.4.2012 - Appellant is directed to deposit an amount of Rs.12 lakh: CESTAT [Para 6, 7]


Truform Engineers Vs CCE (Dated: March 20, 2015) CX - CENVAT - Rule 6 of CCR, 2004 - Whether 10% payable on clearances to SEZ developers under exemption - issue no longer res integra - amendment to Rule 6(6)(i) of the CCR, 2004 by the amending Notification No.50/2008-CE (NT) dt. 31/12/2008 shall be applicable w.e.f. 10/9/2004 when the CCR, 2004 came into existence and, therefore, exception provided under Rule 6(6) of CCR, 2004 from operation of rule 6(1) to 6(4) shall be applicable to supply of exempted goods both to SEZ units and SEZ developers / promoters - Order demanding amount equivalent to 10% of the value of the goods cleared to SEZ developer is set aside - Appeal allowed: CESTAT [Para 5, 8]


Gkn Sinter Metals Pvt Ltd Vs CCE (Dated: April 28, 2015)

CE - Rule 4 of CER, 2002 - Storing excisable goods outside factory - Exceptional circumstances undoubtedly would imply temporary and brief period - Permission sought is for very long or endless period - there is nothing wrong in the reasoning given by Commissioner while rejecting the request - since the goods manufactured were not notified under warehousing provisions, the benefit of Rule 20 of CER, 2002 cannot be extended - Appeal rejected: CESTAT [para 5 to 8]



Continental Chemicals Ltd Vs CCE ( Dated: April 20, 2015 ) CX - Refund - Appellant has procured inputs on which duty has been paid and no Cenvat credit has been taken by appellant - Said inputs have been used in manufacture of exported goods which have been exported through merchant exporter and under Bond - As the input is used in process of manufacture of final product, therefore, appellant is entitled to take Cenvat credit thereof and as the appellant has not taken Cenvat credit of duty paid on inputs, consequently, appellant is entitled for refund of duty paid on inputs - Appeal allowed: CESTAT [Para 2, 8]


Simplex Infrastructure Ltd Vs CCE & ST (Dated: December 5, 2014) CE - Appellant engaged in manufacture of RCC pipes in their factory and not at the construction site, benefit of notfn would not be available to them - They insists that site for manufacture of goods was shifted from construction site to the present site with the approva l of project officer, which was on account of difficulties expressed by appellant as there was shortage of space and continuous flow of traffic - It is seen that manufacturing activity was not being done at construction site but at a separate khata Number and separate site was taken for such fabrication which has nothing but appellant factory site - No justifiable reason to interfere with stay order which is only for the purpose of satisfaction of provisions of Section 35F of CEA, 1944 - In the interest of justice, time to deposit the amount is extended by another six weeks: CESTAT [Para 5, 6, 7, 8]

2015-TIOL-985-CESTAT -MAD

M M Forgings Ltd Vs CCE ( Dated: March 24, 2015 )

Central Excise - Interest - short issue involved in this case relates to demand of interest against the delayed payment of duty on supplementary invoices raised by the appellant; confirmed in adjudication, upheld by Commissioner (Appeals) and agitated herein.

Held: Issue has been settled by the Supreme Court in the case of SKF India and International Auto Ltd - ratio squarely applies to the facts of the present case; no infirmity in the impugned order, which is upheld [Para 4]


Hinduja Foundries Ltd Vs CCE (Dated: March 20, 2015)

Central Excise - CENVAT credit - issue relates to denial of credit on MS Channels, MS Angles, MS Plates etc. after the amendment of definition of Rule 2(k) of Cenvat Credit Rules, 2004.

Held: Taking into consideration the judicial pronouncements, the appeal is remanded to the adjudicating authority who shall hear the case afresh after examining the ratio laid down in the HC judgments and pass appropriate order after hearing the appellant [Para 3]


The India Cements Ltd Vs CCE (Dated: February 25, 2015)

Central Excise - CENVAT credit - common issue in all the appeals is the admissibility of cenvat credit in respect of both inputs and/or input services used in setting up of wind mills, generation of wind power and maintenance as well as operation thereof - credit denied on the ground that those do not relate to manufacture since energy generated by wind mills were not used in the manufacture or providing of any output service; agitated herein.

Held: Bombay High Court in Endurance Technologies case held that there should not be inadmissibility of input credit on input or input services used by wind mills to generate energy which is made available through electricity board under barter system - denial of credit set aside with consequential relief in all cases - Revenue's appeals dismissed wherever admissibility / penalty contested[Para 5]


M/s Ums Radio Factory Vs CCE (Dated: March 26, 2015)

Central Excise - MODVAT credit - appellant engaged in manufacture of electronic items such as antenna, booster, stabilizer etc. - They have two units both located in two different premises at Coimbatore - Unit-I imported five machines during the year 1997-1999; filed intimation under 57(1) before purchase and receipt of the machines; intimated shifting these machines to their unit-II without availing capital goods credit - The machines were used in Unit -II for carrying out job work for unit-I and subsequently, unit-II returned these five machines to unit-I in July'99 and Au gust'99 whereupon unit-I availed credit on the CVD paid - The machines were once again shifted to unit-II after reversal of the entire credit - Revenue viewed the same irregular; adjudicated demand for recovery of credit with interest and penalty on both units; penalty reduced by Commissioner (Appeals), culminating in the instant appeal.

Held: Without any investigation and proof of evidence contrary to the intimation and documents on record the adjudicating authority concluded that there is no receipt of capital goods in unit-I - The first appellant had availed the credit for the first time when the said capital goods returned from unit-II on 2.8,.99 and on 30.8.99 and immediately filed the declaration under Rule 57S(2) on 30.8.99, which was duly acknowledged by the Asst. Commissioner - no dispute on the fact that the appellants have reversed the entire credit availed while shifting on 30.08.99 to their unit-II, which is clearly reflected in the invoice dated 31.08.99 and supported by RT12 returns filed for the month of August'99 wherein both availment of debit of RG23 (c) part 2 has been reflected in the returns - reversal of credit is in conformity with Rule 57Q(8) of CER,1944 - In the case of Pooja Forge Ltd on identical issue the DB of the Tribunal has allowed the credit on capital goods where the capital goods were removed from unit-I to unit-II of the appellants own units; the same was upheld by the P&H High Court - Ratio of the Pooja Forge ruling squarely applicable to instant case - appellants followed the procedure correctly in conformity with Rule 57Q, 57(T) and 57(S) and rightly availed and reversed the same at the time of removal of capital goods to their

unit-II - impugned order disallowing credit availed against the first appellant and imposition of equivalent penalty is set aside; Consequently, the penalty on the second appellant does not survive and the same is set aside [Para 7]


M/s United Chain Industries Vs CCE (Dated: August 20, 2014)

Central Excise - Penalty - appellant invoiced capital goods to M/s Talbros, allegedly without supply of physical goods; and credit availed by Talbroson such invoices - DGCEI investigated M/s Talbros, proposed demands and penalties on several suppliers including the appellant for issuing invoices to M/s Talbros without supply of goods - non imposition of penalty on appellant by original authority agitated by Revenue before Commissioner (Appeals) who remanded the case; original authority imposed penalty in denovo adjudication, upheld by Commissioner (Appeals) and agitated herein.

Held: Appellants conceded that the invoices were issued without ever supplying any goods - Settlement Commission itself did not admit their case and such non-admission was not on the ground that they would be covered by the main order in case of Talbros - The judgement in the case in K.I. International held that the benefit of the Settlement Commission's order cannot be extended to those who never approached the Settlement Commission; contention of the appellants in this regard is not sustainable - Appellant further contended that the penalty under Rule 25 cannot be imposed as there were no goods involved - Punjab & Haryana High Court in the case of Vee Kay Enterprises discussed this very issue and has come to a finding that even in such cases, penalty can be imposed - Further in the case of appellants, the fraud committed is deliberate and blatant and involved manipulation of documents; no mitigating factors in this case to justify lower penalty - no infirmity in the impugned order. [Para 5, 6]


Shri Siyaramji Gupta Vs CCE (Dated: March 19, 2015)

CX - Rule 26 of CER, 2002 - Penalty - Sugar which was cleared for export was not exported but diverted for home consumption - Penalties on exporter, Chairman and Secretary & Ex-Managing Director of the sugar factory, whether imposable. Held: As per rule 26 of CER, 2002 penalty can be imposed on any person who acquires possession of excisable goods which he knows or has reason to believe that the goods are liable for confiscation - In the cases in hand it is not in dispute that the sugar which has been cleared for export purpose was cleared on examination and on debiting B-1 Bond, AR-4 documents - If the bond amount (which is executed for undertaking dis charge of duty liability) is debited and the goods are cleared the question as to whether they may be confiscated may not arise - all the three appellants could not have any reason to believe that sugar cleared for export is liable for confiscation - penalties set aside and appeals allowed: CESTAT [para 6]


M/s Seleno Steels Ltd Vs CCE & ST (Dated: January 27, 2015)

CX - Department's case of duty evasion against assessee is based on recovery of certain documents from commission agent Shri Gopal Krishna Aggarwal, which showed that assessee sold certain consignments of sponge iron to various customers through M/s Gopal Steel and for which Shri Gopal Krishna Aggarwal received commission - No inquiry had been made with transporters or customers mentioned in records of Shri Gopal Krishna Aggarwal and similarly neither the factories of assessee

had been visited in follow up action nor there is any allegation of discrepancies in stock of finished goods or raw material in their factories - Assessee had requested for cross-examination, but same has been refused by Commissioner, which is necessary, as other than the documents recovered from Shri Gopal Krishna Aggarwal and his statement, there is no other evidence in support of Department's allegation of duty evasion - Appeal is restored and matter is remanded to Commissioner for denovo adjudication: CESTAT [Para 1.1, 6]


Shri Siddeshwar Tobacco Prod Pvt Ltd Vs CCE (Dated: February 24, 2015)

CX - Assessee are manufacturer of pan masala containing tobacco called gutkha and paying their monthly duty liability in advance - By the order dated 25/07/12 of Government of Chhattisgarh, manufacture and sale of gutkha was banned with immediate effect - Vide letter dated 26/07/12 addressed to department, assessee clearly informed that in view of ban on manufacture and sale of gutkha and pan masala, they wish to permanently discontinue manufacture of gutkha from 27/07/12 - All the machines were sealed in the evening of 27/07/12 in presence of Panchas - Refund claim was filed in respect of duty for period from 28/07/12 to 31/07/12, as they had already paid duty for the entire month of July, 2012 in advance - Assistant Commissioner has refunded disputed amount strictly in accordance with Rule 16 of Pan Masala Packing Machines Rules, 2008 - Revenue argued that assessee has paid duty for month of July, 2012 with a delay and for that they are required to pay interest - If at all, there was demand of interest, for that department could have proceeded separately which department has failed to do so - Therefore, impugned order is set aside and appeal allowed: CESTAT [Para 6, 7, 8]


M/s VE Commercial Vehicles Ltd Vs CCE (Dated: January 19, 2015)

CX - Cenvat credit totalling to Rs.23.68 Crores has been denied in respect of total 21 different input services including consultancy service - Credit of Rs. 5,54,49,137/- was sought to be denied by SCN in respect of consultancy services received from foreign service providers on the ground that assessee, the service re cipient had paid ST on these services under section 66 A of FA, 1994, while CCR, 2004 do not permit cenvat credit of ST paid by a service recipient under section 66 A - Commissioner has not discussed at all as to how the said consultancy services are not covered by definition of 'input service' - In respect of other services received by assessee from various domestic service providers he has not discussed at all the Board's Circular No.943/4/2011 cited by assessee on the ground that he could not locate the circular on CBEC Website - He has not even discussed question of admissibility of cenvat credit in respect of these services on merit - Order passed by Commissioner is an irresponsible order which is not expected from a senior officer of rank of Commissioner, same is set aside - Matter is remanded to Commissioner for de-novo adjudication: CESTAT [Para 3, 5]


CCE Vs M/s Hindustan Lever Ltd (Dated: January 15, 2015)

CX - CENVAT - Slump sale of on-going factory along with raw materials, packing materials etc. - no cause for reversal of CENVAT credit on inputs as there is no "removal" from factory - Revenue appeal dismissed: CESTAT [para 5]



M/s Slotco Steel Products Pvt Ltd Vs CCE (Dated: March 4, 2015)

CX – Clandestine removals - Relevancy of statements - While the allegation of duty evasion against the appellant is based on the statements of suppliers, their cross examination has not been allowed - If the adjudicator wants to invoke clause (a) of Section 9D(1) of CEA, 1944, a finding has to be given that the situations mentioned in this clause exist after hearing the appellant – In this case admittedly neither a finding has been given after hearing the appellant that the witness whose statements are sought to be relied upon by the Department in support of the allegation of duty evasion against the ssesse are either dead, or cannot be found, or are incapable of giving evidence, or are being kept out of way by the adverse party, or their presence cannot be obtained without an amount of delay, or expense which is unreasonable nor the witnesses who are available, have been made available for cross examination which – this requirement is necessary and, therefore, order is set aside and matter remanded to Commissioner for denovo adjudication: CESTAT [para 7, 8]


Trimurti Fragrances Pvt Ltd Vs CCE & ST (Dated: December 14, 2014)

CX - Appellant in addition to manufacturing Gutkha pouches of RSP Re.1/- per pouch in respect of which declaration had been made by them in Form -1, also manufactured gutkha pouches of RSP of Rs.0.50 paise per pouch on same packing machines - Appellant dis charged their duty liability at per machine per month rate specified in Notfn 42/2008-CE - Revenue asked assessee to treat each machine on which gutkha pouches of RSP of Re.1/- as well as Rs.0.50 paise per pouch were manufactured, as two machines - As per Phool Chand Sales Corporation, 1st proviso to Rule 8 of PMPM Rules applies only when pan masala/gutkha with two RSPs falling under two different slabs are manufactured on a machine in a month - Requirement of pre -deposit of duty demand, interest thereon and penalty for compliance with provisions of Section 35F of CEA, 1944 would cause undue hardship - Stay granted: CESTAT [Para 5, 6, 7, 8]


Rathod Industries Vs CCE (Dated: November 13, 2014)

CE -175/86-CE - Appellant, engaged in the manufacture of goods falling under Chapter 84 and 87 - appellant's claim was that they can clear goods free of excise duty upto Rs. 30 lakhs out of which they can clear goods worth Rs. 20 lakhs falling under Chapter 84 and another Rs. 10 lakhs for the goods falling under Chapter 87, even though in between they have cleared goods falling under Chapter 84 on payment of duty. Held: Once aggregate value of clearances of the specified goods crosses the limit of Rs.30 lakhs, benefit of Not. 175/86 cannot be extended - appeal dismissed : CESTAT [para 6, 7]


Surya Exports Vs CCE (Dated: March 23, 2015)

Central Excise - Refund - both the adjudication and lower appellate authorities disallowed the refund claim on the ground that appellants have not produced proper evidence to substantiate their claim.

Held: In the appellant's own case on the identical issue, this Tribunal rejected the appeal - appellants in the past also had not produced relevant original documents before any of the authorities and even in the present appeal, they have failed to

submit original documents - no infirmity in the impugned order, which is upheld [Para 3, 4]

2015-TIOL-957-CESTAT -AHM

M/s Standard Silk Mills Vs CCE & ST (Dated: December 3, 2014)

CX - Assessee have paid duty on the basis of actual production as they never opted for compounded levy scheme - For the period under closure no duty can be demanded even under compounded levy - Revenue could not bring any documentary evidence to the notice of bench that such a declaration was in fact filed by the assessee except to a mention made in OIO passed by Adjudicating authority - Assessee received information through RTI to the effect that no such declaration is available with department - Stay granted: CESTAT [Para 4]


Krcd (India) Pvt Ltd Vs CCE (Dated: March 31, 2015)

CE - MP3 CD-ROMs contain only audio songs which can be played on any MP3 CD player, these discs are neither interactive nor is it possible to manipulate the details in such CDs - they cannot be considered as 'software' so as to be classified under Heading 8524.20 at Nil rate of duty - Appeal dismissed: CESTAT [para 4, 7, 8, 9]



M/s Tata Motors Ltd Vs CCE (Dated: February 18, 2015)

CE - Whether Cess is applicable on Tractors cleared by appellant during the period June 2001 to December 2001 - both automobile and tractor cess are leviable @1/8% and both are covered by section 9 of IDRA Act, 1951 - consequent to decision of Himachal Pradesh High Court in the case of Indo Farm Tractors & Motors Ltd., Board has vide Circular 916/6/2010-CX clarified that tractor cess is chargeable - although demand notice proposes to recover the same under sr. no. 7, tractors are more specifically covered under sr. no. 10 - rate of cess is same under both entries - demand upheld, however penalty imposed u/r 173Q of CER, 1944 of Rs.60,000/- is set aside - Appeal partly allowed: CESTAT [para 5]


CCE Vs Tatat Steel Ltd (Dated: March 30, 2015)

CX - Revenue appeal against o-in-a for non-imposition of interest and penalty on respondent - respondent assessee had filed appeal against the same o-in-a and their appeal was allowed on merits by setting aside o-in-a vide final order dated 15.11.2010 - in this view of the matter, nothing survives in the appeal filed by the Revenue - appeal rejected: CESTAT [para 4]


M/s Vaibhav Auto Industries Vs CCE & ST (Dated: January 15, 2015)

CE - Assessee was directed to deposit an amount of Rs. 60,00,000/- - But they have deposited only Rs. 30 Lakh and filed an application before the High Court for extension of time for compliance of stay order - High Court by order dated 10.10.2014 extended the time up to 31.12.2014 - Assessee neither produced the compliance report nor any further order from High Court - Appeal is dismissed for non compliance of any order: CESTAT [Para 2]


M/s Tarun Alloys Ltd Vs CCE & ST (Dated: April 6, 2015)

CX - It is alleged that appellant during the period April 2008 to November 2008, had clandestinely cleared 2145 MT of MS Ingots to KIL on which duty involved is Rs. 95,83,397/- - Out of said demand, duty demand of about Rs. 35 lakh is alleged clandestine cleara nces of 789 MT of MS Ingots is based on purchase file and balance amount of duty demand is based on the data retrieved from CPUs, Pen Drives and Laptops - Commissioner while adjudicating the matter against KIL has held that CPU/pen drive data is not reliable and on this basis had dropped the entire demand based on such data retrieved from CPUs, Pen Drives and Laptops - Therefore, out of total duty demand of Rs. 95,83,397/- at least demand of about Rs. 35 lakh may be sustainable - Duty demand is based only on entries in purchase files maintained by employees of KIL which had been recovered from their premises and prima facie, no other evidence of unaccounted purchase of raw material or evidence of clandestine removal by appellant was found - Stay granted: CESTAT [Para 5]


Rakhoh Enterprises Vs CCE (Dated: May 1, 2015) CE - Duty demand along with interest upheld, however, penalty set aside - Appellant submitting that sine qua non for invoking extended period & imposing penalty u/s 11AC is one & the same - as order was passed after considering all material facts and judgements , no patent mistake exists - ROM dismissed: CESTAT [para 3, 3.1, 3.2]



CCE Vs M/s Universal Fireworks Industries (Dated: November 12, 2014) Central Excise - SSI exemption - Respondents engaged in the manufacture of fireworks - Revenue was of the view that the said units are not eligible to avail SSI exemption benefit under Notification No. 175/86-CE dated 1.3.1986 individually; notice proposing denial of SSI benefit by clubbing clearances of the four units dropped in adjudication, upheld by Commissioner (Appeals) and agitated by Revenue before the Tribunal in the first round of litigation, who held that the units are independent; that SSI benefit was admissible; and remanded it to the original authority to examine the removal of the goods without payment of duty clandestinely - demands dropped in the second round of litigation, culminating in the instant appeals by Revenue.

Held: Tribunal in the earlier round held that all the units are independent and the benefit of exemption Notification is required to be extended - same was not challenged by the Revenue before the higher appellate forum; hence Revenue is not permitted to proceed on the same grounds in the remand proceedings - well settled by the various decisions of the Tribunal that clubbing cannot be established without any evidence of flow of funds - In the case of VIR Industries it has been held that the three units having some common partners operating from the same premises and

having common facilities, entire production of two units sold to third unit, no finding of special financial relationship involving common funding and financial flow back or manipulation of accounts and therefore clearance cannot be clubbed and assessable value to be the sale price of each unit - In the case of Techno Device it has been held that maintenance of accounts of various units by a single person and at one office is not a ground for justifying clubbing - Revenue has not placed any material for clandestine removal of the goods as directed by the Tribunal in earlier order - No infirmity in the order passed by the Commissioner (Appeals) recording detailed findings on clubbing, which is upheld. [Para 4, 6, 7]


CCE Vs M/s United Breweries Ltd (Dated: February 27, 2015) CE - Whether carbon dioxide which is generated during fermentation process in assessee's factory and stored by them after liquefaction and is subsequently used for carbonation of beer, would be chargeable to central excise duty or not; that in this regard basic question to be decided is as to whether this carbon dioxide is marketable or not - Carbon dioxide which is generated during fermentation process would have certain impurities of methane and alcohol and for making it marketable as carbon dioxide gas, same would have to be purified for which a separate plant is required - It is a well settled law that marketability of goods in form in which the same are cleared for captive use has to be proved - Carbon dioxide purchased from carbon dioxide manufacturers is not comparable with gas which was being produced in their factory - Appeal dismissed: CESTAT [Para 6, 7, 8]


M/s Rathi Ispat Ltd Vs CCE (Dated: March 30, 2014) CX - Group of appeals along with stay applications have been filed on 2.3.2010 and thereafter stay applications had been listed for the first time on 11.06.2010 - On that day on request of appellant the matter was adjourned to 24.08.2010 - Between August, 2010 to May, 2014, matter was adjourned by Bench from time to time for various reasons - Adjournment was again granted on appellant's request was on 27.06.2014 when the matter was adjourned to 11.07.2014 and on this date appellant's counsel could not come, as according to him, he was seriously ill and was suffering from high fever and in this regard, records of his treatment in form of prescription given by CGHS Doctor as well as Private Physician has been placed on record - Cost of Rs.25,000/- imposed on appellant vide misc. order is waived and misc. application is allowed: CESTAT


CCE & Cus, Vs Noble Grains India Pvt Ltd (Dated: February 11, 2015) CE - Notfn. 41/2007-ST - Respondents are manufacturers of soya extraction meal - refund claims filed in r/o service tax paid to service providers in connection with consignments cleared for export - refund denied by original authority on the ground that jurisdiction of sanctioning refund would arise only at Indore Commissionerate as the export documents were prepared from the registered office there - Commissioner(A) allowed appeals and, therefore, Revenue filed appeals before CESTAT. Held: There is no dispute that consignments exported were cleared from Akola factory and, therefore, the jurisdiction for claiming refund cannot be shifted to Indore - respondent has correctly filed refund claims at Nagpur Commissionerate - it is avowed policy of the Central Government that all exports should be of goods and not taxes - order of Commissioner(A) is correct, proper and legal and does not suffer from any infirmity - Revenue appeals rejected: CESTAT [para 7, 8]


Mahalaxmi Extrusions Vs CCE (Dated: March 4, 2015) CX - Assessee purchased Brass Ingots from Dubai Company, who placed the orders to M/s Mitesh Impex, a 100% EOU, supplied the goods to assessee in DTA as per agreement with Dubai company - Goods were delivered to appellant accompanied with CE invoices - In Cenvat Scheme, ownership of input is not relevant factor and the assessee would entitle to avail cenvat credit on the basis of duty paying documents prescribed under Rule 9 of Rules 2004 - There is no dispute that input received in the factory of assessee - Manufacturer of input supplied the goods in DTA, thus, there is no scope to use documents by overseas company - So, denial of cenvat Credit is not justified - Accordingly, impugned order is set aside and appeal allowed: CESTAT [Para 5, 6, 8]


Shri V K Gupta Vs CCE (Dated: February 12, 2015) CE - Role of Shri V K Gupta as described in impugned order is not covered by activities enumerated in rule 209A of CER, 1944/ Rule 26 of CER, 2001/02 for which penalty is attracted and similarly not covered by activities enumerated in section 112(b) of Customs Act, 1962 which would attract penalty - Shri VK Gupta has not acquired possession of or has not dealt with any excisable goods which he knew or had reason to belief were liable for confiscation and similarly he has not acquired possession of or has sold or was involved in dealing with any imported goods which he knew or had reason to belief were liable for confiscation - Provisions of Rule 209A or Rule 26 are not attracted, and hence, penalty imposed on him is not sustainable - Penalty imposed on him under section 112(b) of Customs Act, 1962 is also not sustainable: CESTAT

CE - As regards, the other employees, Shri Pramod Nigam, was authorized signatory of M/s Margra Industries Ltd. and allegation against him is that while as authorized signatory, it was his prime responsibility to ensure that rules and regulations are scrupulously followed in unit, but he failed to discharged his responsibility - Allegation against Shri Manoj Gupta is that he entered the figures for the period from 23.12.1999 to 23.12.2002 in the register without corroborating record on the basis of figures supplied by one Shri A. K. Banerjee and thus he has tried to fabricate records, which he knew were manifestly wrong - Allegation a gainst Shri Abbas Ali is that he prepared invoices for excisable goods which were removed without payment of duty - Neither the provisions of section 112(b) of Customs Act 1962 would be attracted nor the provisions of Rule 209A of CER 1944/ Rule 26 of CER, 2001/2002 would be attracted, and hence, penalty imposed on these employees are not sustainable: CESTAT


Sandeep Laminates Ltd Vs CCE (Dated: December 29, 2014) CE - During the period prior to amendment of tariff in 2007 in terms of Apex Court judgement in the case of Metalex India Pvt Ltd - 2004-TIOL-77-SC-CX , process undertaken by appellant did not amount to manufacture - There is no dispute that the amount paid by appellant on the clearances of laminated polyster Films is much more than the cenvat credit availed - Impugned order is not sustainable and as such the appellant have strong prima facie case in their favour - Stay granted: CESTAT [Para 6, 8]


N C Cables Ltd Vs CCE (Dated: December 11, 2014)

CX - Assessee took over the business of M/s National Cable Industries and sought regis tration in their name - Assessee availed Cenvat Credit lying in account of M/s National Cable industries - It is alleged that assessee has taken credit without permission - As per rule 10 (3) of CCR, 2004, there is no requirement to take prior permission to take Cenvat Credit from concerned authorities - As assessee has taken credit and informed the department and filed ER return regularly and same has been accepted by department, therefore, question of taking any permission does not arise - Cenvat Credit is available to assessee - Appeal allowed: CESTAT [Para 7, 8, 9]


R A Casting Pvt Ltd Vs CCE & ST (Dated: January 16, 2015)

Central Excise - Demand - appellant are manufacture of MS ingots; officers visited their factory and detected shortage of inputs and finished goods - demands adjudicated with interest and penalty; upheld by Commissioner (Appeals) and agitated herein.

Held: appellant has paid the duty at the time when shortage was detected; did not contest the duty liability but contested only penalty till the level of Commissioner (Appeals) - appellant cannot be allowed to contest the duty liability taking support of Hri Sidhdata Ispat - Commissioner (Appeals) has given a clear finding that there is no tangible evidence of clandestine removal of goods; same not challenged by Revenue - penalty on appellant is not imposable and is set aside; impugned order is modified accordingly. [Para 7]


Saravana Ginning Factory Vs CCE (Dated: August 20, 2014) Central Excise - Valuation - appellants SGF and SSTL are engaged in the manufacture of cotton yarns; SSTL cleared cotton yarn on job work basis on receipt of the raw materials from SGF, to the consignment agents - first appellant has not discharged the excise duty on the value of the goods sold at the premises of the consignment agents, instead they have paid excise duty on the value certified by the Chartered Accountant - differential duty demand with interest confirmed on SGF, apart from penalties on both appellants, upheld by Commissioner (Appeals), a nd agitated herein.

Held: SGF instead of returning the finished goods to the principle manufacturer directly cleared the goods to the consignment agents on payment of excise duty - the consignment agents in turn collected the excise duty and sales tax from the buyers; SGF has already collected the excise duty as per the value from the customers at the price at which it was cleared from the consignment agents, hence duty is payable on the goods manufactured and cleared from the job worker directly to the consignment agent on the price at which consignment agents have sold to the buyers - Case law relied upon by Revenue applicable to the present case and Ujagar Prints ruling relied upon by SGF distinguished on facts - no infirmity in the findings of the adjudicating authority in confirming the demands - However, penalty imposed on SSTL reduced from Rs.25,000/- to Rs.5,000/- and the penalty imposed on SGF is set aside. [Para 5]


M/s Kores (India) Ltd Vs CCE (Dated: March 6, 2015)

Central Excise - Interest - Ex parte ruling passed earlier for non prosecution agitated on ground of age of counsel; same restored and examined on merits.

Held: Under Explanation I to section 11BB of Central Excise Act, 1944, mandate is that when the duty earlier payable in adjudication is reduced by Tribunal, the date of determination of the duty shall be the date on which an amount of duty is first determined to be payable - adjudication order which gave rise to the demand of duty to the extent confirmed by Tribunal, becomes enforceable demand and only if that demand is not paid, then there shall be levy of interest - demand which was ultimately reduced by Tribunal having been discharged; there shall be no interest liability [Para 4]

2015-TIOL-919-CESTAT -KOL

M/s Mideast Integrated Steels Ltd Vs CCE, C & ST (Dated: January 19, 2015)

CX - Short payment of duty - Assessee, 100% EOU engaged in manufacture of Pig Iron - Impugned Order has been passed ex-parte - Lack of sincerity on the part of assessee in participating in adjudication proceeding before Commissioner - In the interest of justice, assessee be given a chance to place all the documents before Commissioner in support of their defense/claim - Assessee is directed to file their reply within two weeks and are directed to co-operate with the Department, without seeking unwarranted and frivolous adjournments - Matter remanded: CESTAT [Para 5]


SKF India Ltd Vs CCE (Dated: April 21, 2015)

CENVAT - s.69 of FA, 1994 - Rules 6, 7, 9, 14, 15, 15A of CCR, 2004 - ISD neither provides any service nor pays any service tax as provider of output service and, therefore, there is no question of assessment or self-assessment - Input service distributor is not an assessee under the Service Tax law, therefore, return cannot be called as a self-assessment by the ISD - Concept of self-assessment is relevant for service tax payer alone - Contention that credit cannot be denied unless the assessment of distribution of credit made at the ISD is set aside is rejected outright - Appeals dismissed: CESTAT



M/s RGR Pharmaceuticals Derabassi Vs CCE (Dated: February 18, 2015)

CX - Assessee, RGR is a job worker of medicaments of NPIL - Revenue views that the real manufacturer is NPIL - RGR is paying duty on the value arrived at cost plus job charges as per the formula determined by Apex Court in the case of Ujagar Prints 2002-TIOL-03-SC-CX-CB - As per Glenmark Pharmaceuticals Limited 2007-TIOL-2366-CESTAT -MUM , manufacturer is RGR and NPIL is not the real manufacturer - As per CBEC Circular no. 619/10/2002- CE, duty demand against RGR on the selling price of NPIL is not sustainable - As appellant RGR has paid duty correctly, therefore, penalty on both the appellants is not imposable - Impugned order is set aside and appeals allowed: CESTAT


GSC Toughened Glass Pvt Ltd Vs CCE (Dated: March 10, 2015)

CX - Valuation - s.4 of CEA , 1944 - Merely because at the instance of the buyer the assessee has taken transit insurance it does not indicate that the ownership of the goods remained with the assessee during transit - SCN issued for inclusion of freight

and transit insurance in the assessable value and demand of differential duty made is not sustainable - Appeals allowed: CESTAT [ para 13, 14]


Conros Steels Pvt Ltd Vs CCE (Dated: February 27, 2015)

CX - ROM - decisions cited by appellant have been delivered four months after Tribunal passed the order, hence, it cannot be said that there is an error apparent on face of record - Application dismissed: CESTAT


M/s Crompton Greaves Ltd Vs CCE (Dated: December 12, 2014)

CX - CENVAT - Rule 2(l) of CCR, 2004 - Input Service - Denial of credit of ST paid on outward courier charges, telephone bills and cargo handling charges etc. - appeal to CESTAT. Held: SCN is vague as it nowhere gives the breakup of the proposed demand nor it discusses any particular reason as to why the CENVAT credit is not allowable in respect of the aforesaid three services - whole proceeding is vitiated for want of a valid show-cause notice - service of a valid SCN containing the exact case and/or gist of the allegation the appellant has to meet is a sine qua non for the adjudicating authority to assume jurisdiction for adjudication - order set aside and appeal allowed with consequential relief: CESTAT [para 5]


M/s Balkrishna Industries Ltd Vs CCE & ST (Dated: December 30, 2014)

CX - Reversal of Cenvat credit - Appellant company has two units for manufacture of Tyres, first unit is at Chopanki and the second unit is at Bhiwadi - Inputs belonging to Chopanki Unit used by them for job work in manufacture of compounded rubber for Bhiwadi Unit - No physical movement of inputs - When there is no physical removal of cenvated inputs, there is no requirement to reverse the credit under Rule 3(5) of CCR - Amount of Rs.2.01 crores already paid by appellant is sufficient for hearing of their appeal - Cenvat credit demand of Rs.2.01 crores has been confirmed against appellant on the ground that this credit had been taken by Bhiwadi Unit on the basis of the supplementary invoices issued by the Chopanki Unit while non-reversal of this credit by Chopanki Unit was deliberate - Rule 9(1)(b) is not-applicable in case of inter-unit transfer - Stay granted: CESTAT [Para 3, 6, 7, 8]


M/s Jindal Drugs Ltd Vs CCE (Dated: February 12, 2015) CX- CENVAT- credit on ASTM, shapes and sections, joists, MSI beam, MS angle, channel, welding rods and black sheet denied on the ground that these items do not fall within the definition of capital goods- during the impugned period 2006-2007 up to 15.2.09, availment of credit on these items were in dispute as there were contrary decisions at the material time- hence extended period of limitation is not invocable : CESTAT [ para 8]

CX- CENVAT- Appellant is located in Jammu and availing exemption under notification 56/2002-CE wherein whatever duty is paid by the appellant from PLA they are entitled for a refund of the same- if in this case appellant had not taken the CENVAT credit, therefore, whatever duty they would have paid, they could claim as refund- this is a case of revenue neutral situation and in this eventuality also allegation of suppression cannot be sustained- appellant succeeds on merits, on time bar and revenue neutrality- Appeal allowed with consequential relief: CESTAT [ para 9, 10]


Ganesh Parthasarathy Vs CCE & ST (Dated: February 16, 2015) Central Excise - Stay / dispensation of pre deposit - Appellant, a 100% EOU imported goods duty free; Revenue alleged the same were not used for the purpose imported; that the duty on DTA clearances was short paid to the extent of Customs duty foregone - demands adjudicated with interest and penalty and agitated herein.

Held: The duty forgone at the time of import became loss to Revenue; also appellant has discharged duty liability at normal rate of excise duty which is not equal to customs duty forgone - prima facie, the demand raised appears to be correct at this stage - Keeping the interest of Revenue and also striking a balance between the amount already paid, appellant is directed to provide bank guarantee to the tune of Rs.1 crore (Rupees One crore only) to Revenue and make cash deposit of Rs.60,00,000/- (Rupees Sixty lakhs only) - in respect of personal penalty, pre deposit waived considering hardship.


M/s Centricast Enterprises Pvt Ltd Vs CCE (Dated: January 12, 2015) Central Excise - Stay / dispensation of pre deposit - Extension of Stay - Appellant filed miscellaneous application for extension of period of stay granted vide Stay Order No.S/837/WZB/2009 dated 22.06.2009.

Held: Larger Bench in the Haldiram India case held that the Stay Order passed by the Tribunal may be extended after considering the necessary facts as it would authorize the exercise of discretion by the Tribunal for grant of such extension - appeal was not taken for hearing by the Tribunal as there is huge pendency of the appeals; instant case already fixed for hearing, and therefore, extension of stay granted till the disposal of the appeal. [Para 5, 9]


M/s Faurecia Automotive Seating India Pvt Ltd Vs CCE (Dated: February 23, 2015) CX - Assessee company is a subsidiary company of FSA, France and they were to receive certain business support services - A manufacturing unit of assessee is in Bangalore and another in Gurgaon since February, 2009 - CENVAT Credit denied on the ground that while credit has been taken by Gurgaon Unit, invoices mentioned service recipients' address as "Faurecia Automative Seating India Ltd., Bangalore KIADB - ST in respect of services, in question, received from parent company in France has been paid by Manesar Gurgaon Unit and this fact is clear from GAR 7 challans - Assessee who have paid ST under reverse charge mechanism of Section 66 A of FA, 1994 as service recipient in terms of Rule 2 (1) (d) (iv) of STR, 1994, challan under which ST had been paid is also a valid document for taking CENVAT Credit in terms of Rule 9 (1) (e) of CCR, 2004 - Since the challans under which ST has been

paid mention Gurgaon Unit as assessee, in terms of Rule 9 (i) (e), CENVAT Credit cannot be denied to assessee even though invoices mentions the address of Bangalore Unit of assessee company - Prima facie view that impugned order is not correct - Stay granted: CESTAT [Para 7, 8]


Leo Circuit Boards, Pvt Ltd Vs CCE (Dated: April 23, 2015) CX - s.2(f) of CEA, 1944 - Activity of assembling lottery terminal from various imported components amounts to manufacture and consequently liable for payment of excise duty - Appeals rejected: CESTAT [para 5]



M/s Autolite India Ltd Vs CCE (Dated: March 19, 2015) Central Excise - Valuation - Appellant, a 100% EOU made DTA clearance of halogen capsules to their DTA Unit, assessed on the FOB price at which the goods were being exported - The Department was of the view that the value is to be determined by invoking Rule 7(3) of the Customs Valuation Rules, on the basis of the sale price of the Halogen Bulbs of the DTA Unit - duty demand with interest and penalties on firm and individuals adjudicated, and agitated herein.

Held: Under the proviso to section 3(1) of Central Excise Act, 1944, while the duty payable in respect of the goods cleared by a 100% EOU into DTA is the aggregate value of duties of customs on import of like goods into India, the assessable value for this purpose is to be determined under section 14 of the Customs Act, 1962; hence the assessable value of the goods cleared into DTA must be comparable with the contemporaneous import price of identical goods or similar goods into India in comparable quantity - Department was not correct in adopting the price at which the unit-I had imported halogen capsules as sample as the quantum of DTA sales being made by the 100% EOU was much larger and in this regard, the import price of gold coated Halogen Capsules was not relevant, as the 100% EOU (Unit-I) was not manufacturing such halogen capsules - contemporaneous import of similar goods in comparable quantity had been made at the prices which were comparable with the DTA sale price adopted by the appellant unit, on which no finding was recorded - demand against unit-I based merely on the allegation of clandestine removal and on entries in the diary recovered from the store keeper, Sh. Satyanarayan, of the DTA Unit; photocopy of this diary has not been supplied - demand not sustainable and the matter has to be remanded to the Commissioner for de novo adjudication after supplying a copy of this diary to the appellant, and taking into account their submissions in respect of the same - impugned order is set aside and the matter remanded for de novo adjudication [Para 6-9]


CCE Vs M/s Dhvani Terefabs Exports Pvt Ltd (Dated: December 10, 2014) CX - Classification - Knitted pile fabrics in running length are classifiable under heading 60.01 and not as textile made up articles, not elsewhere specified under 6307.90 - although the department has filed an appeal against the judgment in S.Kumars Ltd. case, since the same is still pending, the judgment of Tribunal is a binding one - Revenue appeal dismissed: CESTAT [ para 7, 8]


M/s Goyal Auto Products Pvt Ltd Vs CCE (Dated: March 3, 2015) CX - Penalty - Assessee is a manufacturer of auto parts - Confiscation of finished goods, semi finished goods and Indian currency of Rs.4,80,000/- which was found during visit of officer of Central Excise Department - Penalty under section 11AC of CEA, 1944, is not imposable as duty demand has already been dropped by Commissioner (A) - Currency seized is the amount withdrawn from bank which is not the sale proceed of goods which have been cleared clandestinely - Seizure of Indian currency is not correct, confiscation of Indian currency is set aside - For the goods seized at their business premises valued at Rs. 20,27,870/-, redemption fine was imposed of only Rs.25,000/- whereas goods valued at Rs.91,58,842/-, redemption fine imposed is Rs.300,000/- which is highly excessive - Therefore, redemption fine is reduced to Rs. 1,00,000/- Penalties on appellants also reduced: CESTAT [Para 2, 9, 10]


CCE & ST Vs M/s Chetan Industries Ltd (Dated: January 5, 2015) CX - Assessee availed Cenvat Credit on items like Joist, M.S. Angle, Channel and HSM plates - Commissioner (A) in his order found that that all these items have been used by assessee in manufacturing of capital goods which in turn is used for manufacturing of final product - Said fact has not been denied by revenue - No infirmity in impugned order, same is upheld - Appeal dismisseed: CESTAT [Para 2, 6, 7, 8]


Jain Ispat Vs CCE (Dated: February 12, 2015) CE - If a private limited company or public limited company or a partnership or a proprietorship firm as a registered dealer issues bogus invoices without supply of any material to enable another person avail CENVAT credit it would not be correct to say that in such cases the person who had issued the bogus invoices would not be liable for penalty under Rule 26(2) of CER , 2002 - Pre -deposit ordered: CESTAT by Majority Also see analysis of the Order


S K Electro Engineers Vs CCE (Dated: February 15, 2015)

Central Excise - clandestine clearances - investigation recovered various chits containing entries directly demonstrating clearances of the goods manufactured by the appellant - demands confirmed with interest and penalties on the firm and individuals, agitated herein.

Held: When the chits recovered during investigation were not disowned by the appellants, the elementary principle of jurisprudence that possessions follow title brought the appellants to the rigour of law - clear case to hold that the goods were removed clandestinely and cleared without payment of duty - involvement of the Directors in evasion could not be ruled out; Clandestine removal was established from the material facts and circumstances hence imposition of penalty on both the Directors is justified - appellant did not discharge the duty in full, the Director shall not get any leniency under the first proviso to Section 11A read with Section 11AC of the Central Excise Act, 1944 and there is no necessity to further grant any concession

in penalty to any of the appellants. [Para 2, 3, 4]


M/s Sai Wardha Power Ltd Vs CCE (Dated: April 22, 2015)

CX - Maintainability - In the matter of refund/rebate against the supply of goods to the SEZ located in India, whether the appeal lies before Appellate Tribunal or a Revision Application is to be filed before the Jt. Secy. (Revisionary Authority) to GOI - divergent views - Matter referred to Larger Bench: CESTAT [para 4, 5]



M/s Lakhotia Metalizers Pvt Ltd Vs CCE (Dated: December 3, 2014)

CX - Duty evasion by M/s Lakhotia Metalizers Pvt. Ltd. and M/s A. B. Polymers, has been quantified from the records recovered from their premises - Commissioner has found that other applicants were involved in aiding/abetting the impugned duty evasion - Said applicants pleaded that there is no evidence to support the contention of revenue that they abetted the duty evasion by M/s Lakhotia Metelizers Pvt. Ltd. - Case is based on appreciation of evidence produced by both the sides, which would be gone in detail at the time of final disposal of appeals - Each of applicants has acted and omitted in a manner contributed to alleged duty evasion - M/s Lakhotia Metalizers Pvt. Ltd. is directed to deposit 10% of duty confirmed & M/s A. B. Polymers to deposit 5%, of duty: CESTAT


M/s Lakshmi Technology & Engg Vs CCE (Dated: January 28, 2015)

Central Excise - CENVAT credit - dispute relates to obligation of appellant manufacturer under Rule 6 of CCR 2004, producing both dutiable and exempted goods.

Held: Record reveals that there were rival contentions of both sides during pre -adjudication and adjudication stage, therefore controversy on existence of evidence may be well resolved if the appellant comes out with clean hands to adduce evidence before the adjudicating authority and demonstrate that there exists separate record showing manufacture of exempted goods and dutiable goods and the inputs / input services attributable to such goods - record also reveals that during investigation, certain materials were found out by the authorities from different places and certain registers in each of the cubicles were existing but no co-relation with regard to availment of Cenvat credit was made out by Range Officer - proper to remit back the matter to the adjudicating authority to examine the entire evidences which is borne by the record, granting reasonable opportunity of hearing to the appellants in time bound manner.


Prakash Industries Ltd Vs CCE & ST (Dated: February 10, 2015)

CX - Tribunal's order directing the appellant to deposit an amount of Rs. 12.00 Crores within a period of four weeks had been upheld by Chattisgarh High Court and an SLP against High Court's order had been filed - Apex Court while dismissing the SLP had directe d that amount to be deposited within a period of four weeks from the date of

order - Once the appeal against Tribunal's stay order under Section 35F of CEA, 1944 is dismissed by High Court, Tribunal's stay order mergers with High Courts order and Tribunal cannot modify its stay order and extend the period of pre -deposit - Appeal is dismissed for non-compliance of provisions of section 35F: CESTAT [Para 9, 10]


M/s Osaka Alloys And Steels Pvt Ltd Vs CCE & ST (Dated: March 13, 2015)

CX - Since, both the exemption notifications are in force, a unit located in the area specified in Notification No. 56/02-CE has option either to avail of the exemption Notification No. 56/02-CE or avail of Notification No. 1/2010-CE - Even if an applicant does not claim benefit under a particular notification at initial stage he is not debarred, prohibited or estopped from claiming such benefit at a la ter stage – Matter remanded to Commissioner for denovo decision: CESTAT [para 7, 9, 11]


M/s Man Industries India Ltd Vs CCE (Dated: March 4, 2015)

CX - Assesssee manufactures SAW pipes - Said pipes supplied to Gujarat Water Supply and Sewerage Board (GWSSB), which as per the contract were to be cement coated/ epoxy coated pipes - Dispute is only in respect of value of epoxy coating which, according to Commissioner's impugned order had been done inside the factory - According to assessee, epoxy coating had been done outside the factory and hence, value of this coating is not includible in assessable value - If the appellant had availed cenvat credit in respect of coating material and did not include the value of coating in assessable value of pipes and this fact was not specifically intimated to Department, it would amount to suppression of relevant facts from Department and extended period under proviso to section 11A(1) of CEA, 1944 would be invokable - Impugned order set aside and matter remanded to Commissioner for de novo adjudication: CESTAT[Para 6, 8]


M/s Pepsico India Holding Pvt Ltd Vs CCE & ST (Dated: February 9, 2015)

CX - COD in filing appeal - in matters involving identical issue the appellant had filed appeals before Tribunal and had been granted unconditional waiver from the requirement of pre-deposit - in the present case the new employee and legal Manager, both of them, by mistake treated the order as a SCN and did not take any action of filing an appeal - it is seen that there is no reason for the appellant in delaying filing of appeal as the appellant had been granted unconditional stay in respect of earlier appeals on identical issue - delay in filing the appeal was due to bonafide mistake on the part of the appellants employees, hence delay of 293 days in filing appeal is condoned - COD application allowed: CESTAT [ para 6]


M/s Perfect Mechanical Industries Vs CCE (Dated: February 12, 2015)

CX - Appellant are a body builder who construct body, on the chassis received by them - During the period of dispute, they had received duty paid chassis from M/s Ashok Leyland and vehicle factory - Appellant undisputedly have paid duty on fabrication charges in terms of notfn 6/06-CE (Serial No. 41) whose applicability is not disputed by Department - The fabrication charges have been determined by subtracting the value of chassis from the price at which vehicles were supplied to

Armed Forces by M/s Ashok Leyland and vehicle factory, Jabalpur - Department seeks to demand duty on 110% of fabrication charges by invoking Rule 8 of CEVR - Rule 8 is applicable only when the goods manufactured by a manufacturer are captively consumed by him or by some other manufacturer on his behalf, hence not applicable - Impugned order set aside and appeal allowed: CESTAT [Para 5]


Ram Techno Pack Vs CCE (Dated: January 14, 2015)

CX - Appellants were converting the paper into paper reels, cores and tubes on job work basis – Since benefit of Notifications 83/94-CE and 84/94-CE is claimed by appellant for the first time before the Tribunal, it would be proper to remand the matter to original authority to examine whether appellants would be really eligible to benefit of said Notifications - Original authority may also examine the plea of extended period of limitation: CESTAT [Para 6]


Otis Elevator Co (I) Ltd Vs CCE (Dated: March 3, 2015)

CX - s.4 of CEA, 1944 - Valuation - Issue relating to adding of notional interest on advances has been settled in various judgments of Tribunal and other higher courts - it is a settled principle that until and unless Revenue is able to prove that the value is suppressed due to advances taken, the notional interest cannot be added - Appeal allowed: CESTAT [para 4, 5]


M/s Devta Steel Rolling Mills Vs CCE (Dated: February 6, 2015)

CX - ROM - On appeal being filed by Revenue against the order dated 9/10/2000 of Tribunal, issue had been decided by High Court against the assessee and in favour of Department following Apex Court's judgment in the case of Doaba Steel Rolling Mills 2011-TIOL-59-SC-CX - Last sentence in order dated 18/12/2013 to that "it is made clear that the order of the tribunal passed on 9/10/2010 in the present appeal shall operate" is deleted - The order dated 18/12/2013 stands modified - ROM application is allowed: CESTAT [Para 2, 9]


Jindal Drugs Ltd Vs CCE (Dated: January 5, 2015)

CX - Argument of the revenue that labelling or relabeling must enhance the marketability is contrary to the plain reading of note 3 to Chapter 18 - labelling per se will amount to manufacture - CENVAT credit of Rs.23.02 crores correctly availed and Rebate of Rs.13.22 crores rightly granted : CESTAT By Majority



M/s Pepsico India Holdings Pvt Ltd Vs CCE & ST (Dated: February 17, 2015)

CX - Assessee is manufacturing dutiable as well as exempted goods - No seperate accounts maintained - Assessee has opted for reversal of Cenvat credit on inputs as per Rule 6(3 A) (b) (i) of CCR, 2004, while revenue views that formula is applicable to appellant under Rule 6(3A)(b)(ii).

Held: Rule 6(3)A(b) (i) is correctly applicable to assessee, therefore, demand of Rs.3.23 crores is not sustainable - In impugned order Commissioner himself has agreed that input services availed by assessee are covered by other Rule 6(5) of Rules - Stay granted: CESTAT [Para 7, 8]


M/s Monu Steels Ltd Vs CCE & ST (Dated: September 29, 2014)

CX - Appellant engaged in production of MS Ingots - Demand has been mainly worked out on the basis that 830 units of electricity are required for producing of 1 MT of MS Ingots - Demand can not be sustained merely on the basis of allegation of high consumption of electricity in the absence of any other evidence to substantiate unaccounted production and clandestine removal - There is this evidence in the form of diary entries referred atleast to the extent of 395 MT of steel having been removed clandestinely - Duty on this quantity of steel comes to about Rs. 11 lacs - Pre -deposit of Rs. 11 lacs is ordered: CESTAT


CC Vs M/s MARK EXHAUST SYSTEMS LTD (Dated: February 26, 2015)

CX - Input service credit on construction service - Rule 2(1) of CCR, 2004 provides for availment of cenvat credit for setting up, of modernization, renovation or repairs in the factory premises and all the services undertaken by assessee are only related to these services - Assessee are entitled to take cenvat credit on construction services and also do not find any infirmity in impugned order and same is upheld: CESTAT [Para 3, 4]


M/s M M Forgings Ltd Vs CCE (Dated: January 21, 2015)

Central Excise - Refund - appellants are manufacturers of excisable goods clearing on payment of duty as well as export without payment of duty - they claimed refund of unutilized input credit attributable to the exported goods under Rule 5 of CCR, 2002 read with Notification No. 11/2002-CX(NT) dated 01.03.2002; partly allowed and partly rejected in adjudication, upheld by Commissioner (Appeals); and agitated herein.

Held: As recorded in both the notice and the OIO, closing balance of Cenvat credit as on 31.12.2003 includes input credit on the physical stock of raw materials and finished goods - After excluding the credit on inputs lying in stock and contained in the finished goods in stock, the balance credit amount arrived to Rs. 39,49,239 - Rule 5 of CCR, stipulates that exporter can claim refund only when not able to utilize the accumulated cenvat credit for payment of domestic clearance - Input credit attributable to the goods exported has been correctly worked out to Rs. 39,49,239 and what is excluded is the input credit involved in the physical stock of inputs and finished goods lying in stock on 31.03.2003; adjudicating authority has correctly sanctioned the refund amount to the extent of Rs.39,49,239 - impugned order is upheld. [Para 4]


CCE Vs M/s Kesoram Rayon (Dated: February 2, 2015)

CE - Assessee engaged in manufacture of Viscose Rayon Filament Yarn and cleared the same to their depots spread over different parts of country - Duty was paid on clearance of such goods by determining assessable value provisionally - They have adopted depots selling price nearest to the time of removal of goods from the factory and paid differential duty accordingly - As per Rule 7 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, value of goods under assessment shall be the transaction value of goods sold from the depot at the time nearest to time of removal - Revenue's Appeal being devoid of merit is dismissed: CESTAT [Para 4, 5, 6]


CCE Vs M/s Rayat Siksan Santha's Satara (Dated: April 24, 2015)

CX - No dispute about CE duty liability which the respondent paid at the time of investigation itself - No ingredient as enumerated in s.11AC of CEA, 1944 is satisfied so no reason to levy penalty - at the material time provisions of s.11AB were similar to s.11AC, so interest is also not chargeable - Revenue appeal dismissed: CESTAT [para 5]



CCE Vs M/s Fortune Metaliks Ltd (Dated: March 3, 2015)

CX - Cenvat credit availed on as inputs/capital goods - Assessee has filed Chartered Engineers' certificate along with report, design, drawing and photograph which clearly shows that items in question were used for fabrication of capital goods - As per Saraswati Sugar 2011-TIOL-73-SC-CX , they are entitled for cenvat credit - No infirmity in impugned order, same is upheld - Appeal dismissed: CESTAT [Para 5, 6]


M/s Lucas Tvs Ltd Vs CCE (Dated: February 19, 2015)

Central Excise - CENVAT credit - appellants are engaged in the manufacture of Motor Vehicle parts and accessories and availed credit under rule 2(l), of service tax paid on the invoices raised by the C&F agents - same denied in adjudication and by Commissioner (Appeals) and agitated herein.

Held: Services provided by C&F agents include freight, delivery charges, transportation charges, airway bill charges, surcharges, handling charges (both loading and unloading) - clear from the invoices that the C&F agents have rendered the said services to the appellant not only on transportation but other charges and paid service tax - Ratio of HC ruling in the Cadila Healthcare squarely applicable - appellants are eligible for input credit on the service tax paid by the C&F agents. [Para 5, 7]


Finolex Cables Ltd Vs CCE (Dated: March 2, 2015)

CX - During manufacture of cables, certain amount of cable scrap is generated which is being sold by the appellant without payment of duty on the ground that the same is non-excisable - Revenue contention is that the said scrap contains valuable items like copper, aluminium and are being sold as scrap; that similar scrap is even traded internationally and, therefore, is chargeable to duty - Demand confirmed by CCE, Pune-I - appeal before CESTAT - appellant contending that LB decision in Hindalco Industries Ltd. - 2014-TIOL-1762-CESTAT-MUM-LB holding that Aluminium Dross and skimmings are chargeable to duty after amendment to definition of s.2(d) of CEA, 1944 by FA, 2008 has been quashed by Bombay High Court - 2014-TIOL-2266-HC-MUM-CX - AR submitting that the decision has been challenged in Supreme Court and the goods involved in present case is not dross and skimmings. Held: Issue is contentious and the goods involved are not Dross/Skimmings but Cable Scrap which is an internationally traded commodity - Appellant directed to deposit 7.5% of duty demanded within six weeks and report compliance: CESTAT [para 5, 6]


M/s Raj Petro Specialities Pvt Ltd Vs CCE (Dated: January 30, 2015)

Central Excise - CENVAT credit - HR Plates, MS Tubes and MS Pipes used in the manufacture of storage tanks, viewed by Revenue as deployed in support structures. Held: Appellant's submissions have force and subscribes to the ratio laid down by the High Court of Karnataka in the case of SLR Steels Ltd.


M/s India Japan Lighting (P) Ltd Vs LTU ( Dated: February 2, 2015)

Central Excise - Excisability - Moulds and dies supplied by third parties to appellant for use in making goods for Tata Motors - The difference between the amount paid to the maker of moulds and dies and the amount realized from Tata Motors has been sought to be taxed by Revenue, which is in dispute in the present appeal.

Held: Levy of duty on the difference between the charge of moulds and dies paid to maker thereof and recovery of such charge from Tata Motors is inconceivable when no such moulds and dies were removed by appellant - Such goods were never cleared by the appellant who was mere user thereof and such use of mould in the manufacture does not bring out the case of deemed removal thereof - The finished goods cleared are only liable to duty and mere use of moulds and dies to manufacture of such finished goods are not exigible to levy in the hands of the appellant - Apex Court in the case of Baroda Electric Meters held that the profit charged without having bearing on assessable value shall not be subject to levy of excise duty - In absence of any depression to the assessable value, the cost of moulds in the present case cannot be held to be liable to duty without that being cleared by the appellant nor the difference realized by appellant from Tata Motors exigible to duty in absence of removal of that goods. [Para 4, 5]


M/s Automotive Stampings And Assemblies Ltd Vs CCE (Dated: April 23, 2015)

CE - No statute permits that if the buyer is entitled for CENVAT Credit then supplier can avoid to pay excise duty - Plea of Revenue neutrality cannot be accepted - when invocation of proviso to S. 11A is not under dispute, imposition of penalty u/s 11AC & interest u/s 11AB is inevitable - Appeals dismissed: CESTAT [para 5]



SI Group India Ltd Vs CCE (Dated: December 26, 2014)

CX - s.4 of CEA, 1944 - Valuation - Additional consideration - Period June 2002 to December 2005 - Appellant manufacturing excisable goods and clearing the same on payment of Central Excise duty - For specific customers the value which was charged by them was lower than the value which is charged by them for the same grade and quality of final products to other customers on the basis of validation of advance licence in their favour - During the relevant period the judgment of the Tribunal in the case of IFGL Refractories Ltd. was holding fort till 09.08.2005 when apex court overturned the Tribunal decision - Lower authorities directed the appellant to pay the differential dues by a letter dated 04.01.2006 and thereafter issued a SCN dated 13.4.2007 demanding differential duty based upon the allegation of under-valuation and also invoking extended period - Demand confirmed along with penalty and interest - Appeal to CESTAT.

Held : SCN invoking extended period seems to be erroneous, as invoices and documents indicate that clearances made by appellant were in fulfilment of export obligations on invalidating the licence in their favour - Nothing on record to indicate that there was suppression or willful mis -statement on the part of appellant with intention to evade duty - appellant's records were also audited by the departmental officers - Appellant was taking benefit of ratio laid down by Tribunal in case of IFGL Refractories Ltd. and should have on his own paid the duty liability for period 09.08.2005 to December 2005, when Apex Court upturned the order of Tribunal - To that extent, appellant is required to pay duty and interest thereof - since issue involved is interpretation of law and which was settled by apex court, penalty imposed is unwarranted and hence set aside: CESTAT [Para 6, 6.2, 6.3, 6.4,]


Kapoor Lamp Shade Co Vs CCE (Dated: December 24, 2014)

Central Excise - Manufacture - Appellant factory shop, a proprietorship, procure various components of lamp shades and chandeliers from various sources including their manufacturing unit and thereafter pack the same in cartons, put their logo on the cartons and also put the code number of the product - Revenue viewed that this activity of the appellant amounts to manufacture of the lamps and light fittings covered by 9405.90 of the Central Excise Tariff Act, 1985 - duty demands with interest and penalties on firm and individual under Sec 11AA, Sec 11AC of CEA 1944 and Rules 173Q and 209A of erstwhile CER 1944 adjudicated, modified by Commissioner (Appeals), and agitated herein.

Held : Appellants were procuring the metal/brass parts, fabricated metal items and capsule mirrors, polythene tubes and packing materials, lamp shade, gla ss shades, decorative glasses and other items for lamp shades and light fittings; all the components had been got manufactured with a specific design to match the design of the finished item and a specific item number or code number was put at the bottom of each item and cleared with brand name, logo and price tag in a cartoon as finished

item - appellant do not manufacture any component of lamp shade/chandeliers or other light fittings but procure the various component of the chandeliers lamp shades and light fittings of a particular design and packed the same in a box - this activity would not amount to manufacture; same view held by the Tribunal in the case of Kapoor Enterprises, by APHC in XL Telecom Limited, and by the Tribunal in the TI Diamond Chains case - rulings squarely applicable to the facts of the instant case - the activity of the appellant does not amount to manufacture and as such the duty demand is not sustainable on merits - once it has been intimated to the department that a portion of the factory has been leased to another firm for trading activity and along with this letter the ground plant had also been enclosed, it was for the department to ascertain as to what trading activity was being carried on there - impugned order is not sustainable on limitation also, and is set aside. [Para 5, 6]


M/s K P Pan Products Pvt Ltd Vs CCE (Dated: February 10, 2015)

Central Excise - Stay / dispensation of pre deposit - appellant are manufacturers of Gutkha and panmasala of different RSP, discharging duty under Panmasala Packing Machine (Capacity Determination and Collection of Duty) Rules, 2008 - The dispute is in respect of one packing machine which was being used for manufacture of the panmasala of retail pouches of the RSP of Rs.2 as well as Rs.3 - appellant discharged duty liability by treating the machine as having been used for manufacture of Panmasala pouches of RSP of Rs.3 - Revenue viewed that since, on the same machine, in addition to the Panmasala pouches of RSP of Rs.3, the pouches of the RSP of Rs.2 were also manufactured, first proviso to Rule 8 of the PMPM Rules would become applicable and this machine wo uld have to be treated as two machines - duty demand with interest and penalty under Sections 11A(1), 11AA of CEA 1944 and Rule 25 of CER 2002 confirmed and agitated herein.

Held : It is clear that first proviso to Rule 8 becomes applicable when on an existing packing machine, the manufacturer commences manufacture of the "goods of the new RSP" during that month and in such a situation, this has to be treated as an addition in the number of operating packing machines for the month - the new retail sale price would mean the retail sale price which had not been declared in respect of that machine in the Form -I declaration - if in the Form -I declaration, he had declared that machine to be used for manufacture of both the RSPs of Rs.3 as well as Rs.4, it cannot be treated as the case of commencing manufacture of goods of new RSP so as to attract the first proviso to Rule 8 - if the intension of the Government had been to treat a particular machine being used during particular month for manufacture of the retail pouches of two or more RSPs as that many machines, the first proviso would have been worded differently - when the statute is clear and unambiguous; it has to be given effect to without adding any words to it or subtracting any words from it - the Department's stand in this case is not correct and as such, the appellant have strong prima-facie case in their favour; requirement of pre -deposit of the duty demand, interest and penalty is, therefore, waived for hearing of the appeal. [Para 6.1, 7]


CCE, C & ST Vs M/s Ispat Metallics (India) Ltd (Dated: March 4, 2015)

CX - During manufacturing Blast Furnace gas is produced which is exempted from payment of excise duty under Notfn 76/86-CE - Said Blast Furnace Gas was being sold by appellant to customers and paying amount equal to 8% on total price of Gas - Refund claim filed for said amount as according to appellant assessee, Blast furnace gas is a by-product and, therefore, no Cenvat Credit is required to be reversed corresponding to inputs in manufacture of said by-product - original authority rejected claim, however, first appellate authority allowed the claim - Revenue in appeal. Held: Case is squarely covered by decision of Supreme Court in Hindustan Zinc Ltd - 2014-

TIOL-55-SC-CX - Payment of 8% /separate accounts not applicable for by-products - Revenue Appeal dismissed: CESTAT [Para 5]


CCE & ST Vs Taj Haberdashery Products Pvt Ltd (Dated: February 4, 2015)

CX - Brand name - SSI Notfn . 9/2003-CE - Assessee manufactured and cleared Zip fasteners with sliders bearing the brand /trade name MIG , GUN, TLR belonging to Madura Coats Pvt Ltd. - benefit of SSI exemption denied - appeal before CESTAT by assesse. Held: Argument of appellant assesse is that the slider was supplied by the Madura Coats Pvt Ltd, which was fixed in their manufactured goods and, therefore, they have not affixed any brand name on the finished goods - it is clearly evident from the record that the appellant cleared Zip fasteners with sliders, which were bearing the brand/trade name of Madura Coats Pvt Ltd. - Para 4 of SSI exemption notification No 9/2003-CE provides that the exemption contained in this notification shall not apply to the specified goods bearing a brand name or trade name, whether registered or not, of another person - As per Notification No. 9/2003-CE it is not relevant, whether the manufacturer affixed the brand name or not - in the earlier SSI exemption Notification No. 175/86, 1/93 it was specifically mentioned "where a manufacturer affixes the specified goods with a brand name", which are absent in the present SSI exemption notification - Admittedly, the assessee had cleared the specified goods bearing brand name of other person - Apex Court decision in Kohinoor Plastics Ltd ( 2005- TIOL -120-SC-CX ) would squarely apply - benefit of SSI exemption correctly denied - no merit in appeal by assessee , hence dismissed: CESTAT [ para 5, 7]

Penalty - Since the issue involved is interpretation of the notification and there is no material available of suppression of facts with intent to evade payment of duty, Commissioner( A) has rightly set aside the penalty - Revenue appeal dismissed: CESTAT [ para 6]


M/s Goyal MG Gases Pvt Ltd Vs CCE (Dated: February 3, 2015)

Central Excise - Manufacture - Stay/dispensation of pre deposit - appellant procured gases in bulk in tankers, loaded into small cylinders of the specified quantity without any processing thereof - Revenue viewed the same as manufacture, adjudicated demands, agitated herein.

Held : Prima facie , Apex Court ruling relied upon by Revenue relates to processing carried out, but in the present case that is absent - pre -deposit waived during the pendency of the appeal. [Para 3]


M/s Caparo Fasteners Vs CCE (Dated: December 26, 2014)

Central Excise - CENVAT credit - input services credit availed on outdoor catering service; rent-a-cab service and repair and maintenance service of Company's vehicles used for business denied in adjudication on the grounds that the impugned services had no nexus with manufacture; that amounts were collected from workers extended canteen facility; and agitated herein.

Held: In view of the Ultratech Cement ruling, Appellant is entitled to take Cenvat credit of service tax on outdoor catering and rent-a-cab services, subject to the fact

that appellant has not recovered the amount from the employees towards rendering these services - this fact has not been examined by the lower authorities, therefore, matter needs examination at the end of adjudicating authority to ascertain whether appellant has recovered any amount from the employees towards rendering a service of 'outdoor catering' and 'rent-a-cab' service; and if any amount is recovered from the employees towards these services, same is not entitled to input service credit - impugned order is set aside and matter remand ed to examine the quantification of admissible input service credit only - the vehicles in question have been used by the appellant in the course of their business being a manufacturer of excisable goods and hence appellant are entitled to avail Cenvat credit on repair and maintenance services - impugned order is set aside. [Para 6, 7]


M/s Ellora Steels Vs CCE (Dated: February 26, 2015)

CX - Stand of the Department is that the hot rolling process is not possible below 1000°C and as such the appellant were undertaking cold rolling process and hence, the process undertaken by them amounts to manufacture and the goods manufactured by them would be chargeable to duty under heading 7211 – Merely on the basis on the types of customers who were buying the products or the statements of the suppliers of the rolling stands that the rolls supplied by them were suitable for cold rolling, it cannot be concluded that the product of the appellant was a cold roll product - No evidence has been produced that the claim of the appellant is not correct - No tests have been done to establish as to whether the Appellant's final product has the characteristics of cold rolled product – Order set aside and appeals allowed: CESTAT [ para 6.1,7, 9]


M/s Honda Motorcycle And Scooter India Pvt Ltd Vs CCE (Dated: February 20, 2015)

Central Excise – CENVAT credit - appellants are manufacturer of motorcycle and scooters; installed a paint shop and availed credit on the items deployed therein – Revenue viewed that certain credit was inadmissible and merited recovery with interest and penalty; in respect of (a) items embedded to earth, have become immovable goods consequently the appellant is not entitled to take Cenvat credit; (b) credit on air conditioner installed in the office premises has no nexus with manufacture activity of the appellant; (c) the inputs sent for job work were not received back by the appellant within the stipulated period of time and (d) credit related to mould and dies which were not in the possession of the appellant for use – demands adjudicated and agitated herein.

Held: In respect of (a), appellant eligible to avail credit in terms of the Omax Auto ruling – Appellant did not contest demand in respect of (b) and (c); corresponding demand confirmed with interest to be paid within 30 days of issue of this order – Situation in (d) covered by Rule 4 (5) (b) of the Cenvat Credit Rules, 2004, wherein the mould and dies are sent to the job workers for manufacturing intermediate product, the appellant is entitled to take Cenvat credit; corresponding credit admissible - No penalty is imposable on the appellant in the facts and circumstances of the case.



CX - Board vide Circular No. 798/31/04-CX had clarified that while the facility of

removal of petroleum products without payment of duty from a Refinery to a bonded warehouse or from one bonded warehouse to another bonded warehouse has been withdrawn w.e.f. 06/9/04 vide Notif No. 17/04-CE (NT) dated 04/9/04, the facility of removal of petroleum products without payment of duty for export warehousing continues to be available under Notification No. 46/01-CE (NT) – while reiterating this position in Circular No. 804/1/2005-CX. dated 04/1/05 it was also clarified that for the purpose of exports, separate storage of the duty paid and non-duty paid petroleum products is not required - The only objection of the Department is that the Shakur Basti Warehouse is not approved by the Commissioner and separate registration as intermediate warehouse has not been obtained – CE duty demand of Rs. 20,14,29,960/- confirmed in respect of clearances of ATF to Shakur Basti Warehouses during the period from 06/9/04 to 09/08/05 – appeal to CESTAT.

Held: Objection is without any basis, as immediately after amendment to Notification No. 47/01-CE (NT) by Notification dated 04/9/04, the appellant under their letter dated 13/9/04 addressed to the Commissioner had requested for converting the existing bonded warehouse at Shakur Basti as export warehouse under Rule 20 for export of ATF and in response to this Circular, the Department had clarified that since they are already holding a Central Excise registration with the Division, the same registration number would be used for intermediate export warehouse for export clearances - this letter clearly shows that the required registration as intermediate export warehouse has already been granted to the Shakur Basti Warehouse - In view of this, the allegation in the SCNs that Indian Oil Corporation, Shakur Basti, New Delhi is not a registered export warehouse and, therefore, is not entitled to receive duty free ATF from IOC's Refinery at Panipat is absolutely without any basis – Order is not sustainable, hence set aside - Appeals allowed: CESTAT [para 6]


Hindustan Coca-Cola Beverages Pvt Ltd Vs CCE (Dated: March 2, 2015)

CX - ROM application filed against order of Tribunal classifying the appellants' product 'Minute Maid Nimbu Fresh (MMNF)' under CSH 2202 10 20 as 'Lemonade' & holding that same is not entitled for benefit of exemption notification 3/2006-CE. Held - It is a matter of interpretation as to the meaning of words 'juice concentrate' and lime - On the contention that PFA criteria was not under consideration in O -I-O, Tribunal has discussed matter with reference to a technical note produced by the appellant during course of arguments - Tribunal did consider the judgment of Parle Agro Pvt. Ltd. and distinguished it by stating that in case of Parle, the product 'Appy Fizz contained far more and higher significant percentage of apple juice i.e. 23% - Decision of Tribunal is based on totality of various factors including HSN Notes on which CE Tariff is based - Description on product did use the word 'Lemonade' - Similarly when there is doubt as to the classification of a common product reference to a standard encyclopedia such as Britannica may be made for guidance and to remove doubts - Last line in Para 8 of Tribunal order i.e. "the juice content is admittedly only 1%" may be read as "the juice concentrate is admittedly only 1%" - ROM application rejected as there is no 'mistake apparent from the record': CESTAT [Para 5, 6, 7, 8]



CX - Assessee are depots of IOCL and they are receiving duty paid petroleum products from refineries - They are selling goods on the price fixed by Government of India - Revenue views that the price at which goods are sold from depot are higher than the goods cleared from refineries and goods are duty paid - As per Hindustan Petroleum Corporation Ltd. 2012-TIOL-619-CESTAT-MUM-LB, duty is payable by manufacturer or producer of goods while assessee is not a manufacturer or producer of goods, therefore not liable to pay duty under section 11(D) of CEA, 1944 - Appeal allowed: CESTAT [Para 9, 10]


CCE Vs M/s B D Gupta (Dated: March 12, 2015)

CX - Respondent is a second stage dealer of iron and steel items and claimed to have received consignment of scrap from Adhunik Alloys Ltd and which was subsequently sold to Kisco Casting who took CENVAT credit of Rs.4 ,15,844 /- based on the said invoices - allegation of department is that in all these invoices issued by the respondent firm, the vehicles Nos. were of two wheelers, three wheelers, tankers etc., in which the goods claimed to have been supplied by the respondent firm to M/s Kisco Casting could have not have been transported - credit of Rs.4,15,844 /- denied to Kisco Casting and an equivalent penalty imposed on respondent & penalty of Rs.2 lakhs on proprietor of respondent firm - Commissioner(A) setting aside order and, therefore, Revenue is in appeal before CESTAT.

Held: CENVAT - When the burden of proving that the material covered under the invoices issued by the respondent firm had actually been received by M/s Kisco Casting is on them, it is M/s Kisco Casting who has to lead the evidence of having actually received the goods covered under the invoices issued by the respondent firm, and they cannot do so by picking the holes in the Department's case or shifting the burden of proof to the Department - The burden of proof will shift to the Department only when M/s Kisco Casting have produced credible evidence in support of their claim of receipt of the goods covered under the invoices issued by the Respondent - the impugned order is not sustainable, same is set aside and the matter is remanded to the Original Adjudicating Authority for de novo adjudication: CESTAT [ para 5]

Penalty - There is no justification for imposition of separate penalty on its proprietor - Punjab & Haryana High Court in the case of Vinod Kumar Gupta vs CCE 2012-TIOL-324-HC-P&H-CX has held that the proprietorship firm and its proprietor cannot be treated as two different legal entities and in that view, the second penalty on the proprietor in addition to the penalty on the proprietorship firm would amount to imposition of penalty twice over, which is not sustainable in the eyes of law - Revenue appeal to this extent is dismissed: CESTAT [ para 6]


Tien Yuan India Pvt Ltd Vs CCE (Dated: March 13, 2015)

CX - Clandestine removal of Terpene - Once the demand is confirmed invoking the proviso to Section 11A(1) of the CEA, 1944, imposition of penalty u/s 11AC is mandatory and automatic - contention of the appellant that adjudicating authority had not imposed any penalty is clearly wrong - ROM dismissed: CESTAT [para 3, 3.1, 4]



M/s Hotline CPT Ltd Vs CCE (Dated: December 24, 2014)

Central Excise - CENVAT credit - Returned goods - appellant, manufacturer of color picture tubes (CPT), received back defectives which were accounted for under Rule 16 of the CER 2002 and credit was availed on the returns - the goods were dismantled, refurbished and re cleared on payment of duty - Revenue viewed that since in the re-making of the CPTs some Cenvat credit availed parts/inputs are used and since re -making does not amount to manufacture, they would not be entitled to Cenvat credit

in respect of the fresh parts used for re-making of the CPTs - demand for recovery of credit with interest and penalty under Rules 14 & 15 of CCR 2004 read with proviso to Sec 11A(1), 11AB and 11AC adjudicated, upheld by Commissioner (Appeals) and agitated herein.

Held: Under the provisions of Rule 16 of the Central Excise Rules, 2002, when duty paid goods are returned to the factory of manufacture, for being repaired, remade, refined, reconditioned, etc., the manufacturer take the cenvat credit of the duty originally paid and thereafter in terms of provisions of sub-rule (2), at the time of clearance of the repaired/remade goods, if the process undertaken does not amount to manufacture, he is required to pay the duty amount equal to the cenvat credit taken, but if the process amounts to manufacture, he is required to pay the duty chargeable on the goods at the rate applicable on the date of removal and on the value determined under the provisions of Section 3(2), Section 4 or Section 4 A, as the case may be - Rule 16 does not provide that Cenvat credit in respect of the inputs used in the pro cess of repairing/refining would not be available - In identical circumstances, Tribunal in Maruti Udyog and Tudor (I) cases, held the process to be manufacture - Also, appellant had disclosed the process undertaken by them in respect of the defective CPTs received from their customers and hence, the department cannot allege suppression of facts - merit in the appellant's plea that they correctly availed the Cenvat credit on input and the same cannot be denied - impugned order set aside. [Para 5]


Bright Brothers Pvt Ltd Vs CCE (Dated: February 13, 2015)

CX - Duty demand of Rs.25,14,220 /- based on the allegation that the appellant have inflated their raw material consumption/plastic granules and the excess consumption of CENVAT Credit availed plastic granules has actually been cleared without reversal of the credit - This allegation is based on the weight of the various plastic components as determined by the actual availment and the weight of the same component as intimated by the officials of the appellant company, as per their knowledge - Just on the basis of the weight intimated by the appellants' officials and the actual availment of the component, it cannot be presumed that the appellant have inflated the consumption of raw material and have cleared the alleged excess consumption without reversal of the credit - Demand set aside: CESTAT [ para 7]

CX - Shortage of finished goods and non-amortization of value of moulds and dies in AV of finished goods - duty rightly demanded - Where short payment of duty is accepted and paid before issuance of SCN in view of Delhi High Court decision in K.P. Pouches 2008- TIOL -240-HC-DEL-CX penalty is reduced to 25%: CESTAT [ para 6, 9]


M/s Hindustan Pencil Pvt Ltd Vs CCE & ST (Dated: December 30, 2014)

Central Excise – Excisability - appellant is engaged in the manufacture of Pencil classifiable under Chapter heading 96.09 of the Central Excise Tariff Act, 1985; engaged Job Worker for manufacturing Pencil Lead, which is also classifiable under heading 96.09 - The said job worker prepared mixture of natural Graphite and natural Bentonite (clay) captively consumed for manufacturing Pencil Lead - Revenue viewed that the mixture of natural Graphite and natural Bentonite (clay) would be classifiable under heading No. 38.01 and Central Excise duty is leviable; the job wo rker discharged duty during the period March 2006 to December 2006 which was claimed as refund by the appellant herein - the claim was rejected in adjudication on the ground that mixture of natural Graphite and natural Bentonite (clay) is excisable and the job worker has rightly paid the duty – Commissioner (Appeals) upheld the

rejection both on merits and unjust enrichment, agitated herein.

Held: Tribunal in the case of Umesh Pencil Processors held that mixture of natural Graphite and natural Bentonite (clay) would not amount to manufacture; the same is upheld by the Apex Court; hence the instant refund is admissible on merits - appellant should be given an opportunity to substantiate their case on the eligibility to refund claim and on unjust-enrichment - impugned order is set-aside; appeal allowed on merits; however adjudicating authority is directed to examine the eligibility to refund claim, unjust-enrichment and other issues. [Para 5, 6, 7]


M/s Avtec Ltd Vs CCE & ST (Dated: March 25, 2015)

CX - Assessee during the course of manufacture of final product, sent certain processed goods to job workers for further processing - Revenue views that appellant is required to pay duty on scrap generated at job workers end - As per Fag Engineering India Ltd 2011-TIOL-2033-CESTAT-AHM , duty is being demanded by treating them as a manufacturer of waste and scrap which is factually incorrect - In fact, manufacturer of waste and scrap is job worker, therefore, duty cannot be demanded from principle manufacturer - Assessee is not required to pay duty on waste and scrap generated at job workers end: CESTAT [Para 6, 7]


M/s Dharampal Satyapal Ltd Vs CCE (Dated: March 25, 2015)

CX - Pan Masala - Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - It is well settled law that a casus omissus cannot be provided by the Courts or the Tribunals - Machine, in question, is a single track duplex machine - Just because the speed of this machine is about two times the packing speed of simplex model, it cannot be treated as a multiple track machine - Amending notifications of year 2015 taking into account the maximum packing speed while fixing the duty liability is not retrospective - Demand of Rs.25.98 crores & penalties set aside - Appeals allowed: CESTAT [para 6 to 11]



M/s Dhanjjal Industries Vs CCE (Dated: March 24, 2015)

CX - Manufacture - Assessee are engaged in the process of crushing of manmade fabrics with the aid of power - Revenue views that process of crushing would amount to manufacture - Assessees have accepted that the crush fabrics, as such, are sold - It has to be held that process of crushing results in permanent change in fabrics and, hence, in view of Chapter Note 4 of Chapter 55, this process would have to be treated as amounting to manufacture and process of crushing would be covered by expression "any other process" - No infirmity in impugned order holding that the process of crushing would amount to manufacture - Duty demands are within normal period of limitation and hence same are upheld - Since the dispute pertains to interpretation, no malafide can be attached to non-payment of duty by assessees on crush fabrics being cleared by them - Penalty on both the assessees is set aside - Appeals of both the assessees are partly allowed: CESTAT [Para 6, 7, 8, 9]


Abc Paper Vs CCE (Dated: February 12, 2015)

CE - Notification 6/2002-CE, 4/2006-CE - Manufacture of paper in same factory - When it is the appellant who is liable to pay duty on the paper and not the job worker who converted pulp into paper rolls on job work basis, the exemption under these notifications cannot be denied as long as other conditions have been satisfied - Appeals allowed: CESTAT [ para 5]



CCE Vs Greaves Cotton Ltd (Dated: February 03, 2015)

CE - Valuation - s.4 of CEA, 1944, Rule 8 of Valuation Rules, 2000 - Assessee is manufacturing ‘diesel engine model FL-400' and clearing the same to related party - Period of dispute is 1.7.2000 to 31.8.2001 - During the said period they had paid duty on the basis of Cost Accountant's certificate dated 7.8.2000 - Another report of cost auditor was available for the period ending 30.9.2001 - Amounts indicated in two certificates under head ‘Material Cost' and ‘Other costs/overheads' were different - It is not appropriate on part of Revenue to take material cost as per certificate dated 7.8.2000 and take "other cost/overheads" on the basis of certificate dated 30.9.2001 - Certificate dated 30.9.2001 represents correct cost of production and said cost is less than AV on which assessee had paid duty - No merit in appeal of revenue, so, dismissed: CESTAT [Para 3, 4, 5]


Echjay Forgings Pvt Ltd Vs CCE (Dated: March 03, 2015)

CENVAT - Rule 9(1) and 9(2) of the CCR, 2004 do not invalidate invoices issued in the course of Transit sale - Once receipt of inputs, admissibility of credit and subsequent usage of the same is not in doubt and goods have been legitimately procured in the course of transit sales, an accepted business practice, credit cannot be denied - Appeal allowed: CESTAT [para 4, 5]


B S B K Engineers Pvt Ltd Vs CCE (Dated: January 1, 2015)

CX - SSI exemption - Appellant company in their factory manufactures ash handling equipment and a part of premises has been rented out by them to another company (MBPL) - Both units during period of dispute were independently availing SSI exemption - Exemption is sought to be denied to appellant company by clubbing its cleara nces with the clearances of MBPL - Evidence relied upon by Department, at the most indicates mutuality of interest, but it does not prove that appellant company and MBPL are owned by same person - Since there is no shareholding of appellant company in MBPL, on the basis of individual shareholding of Directors of appellant company in MBPL, latter cannot be treated as subsidiary company of appellant company - Registered offices of both companies being at the same address or that plant and machinery of one company having been pledged to Bank as a security for the loan sanctioned by bank to the another, by themselves cannot be treated as the evidence that both the units are owned by same person or that appellant have all purvasive financial operational and management control over MBPL or vice versa - On merits also, there is no justification for clubbing the clearance of appellant company with clearance of MBPL for determining eligibility for SSI exemption of appellant company - Impugned order is not sustainable, same is set aside and appeal allowed: CESTAT [Para 6, 7, 8]


M/s F S Chemicals Pvt Ltd Vs CCE (Dated: February 4, 2015)

CX - Assessee manufactures a product called "organic composite solvent" and classify under heading 3814 of the Central Excise Tariff, while Revenue views that goods are "other motor spirit" classifiable under sub-heading 27101119 of the Central Excise Tariff - Chemical examiner's report while mentioning the flash point as below 25°C is totally silent about other factor as to whether the product either by itself or in admixture with other substance is suitable for use as a fuel in spark ignition engines, hence, product cannot be classified under heading 27101119 - Appeal allowed: CESTAT [Para 6]


M/s Automotive Coaches And Components Ltd Vs CCE (Dated: February 18, 2015)

Central Excise - CENVAT credit - feasibility study for setting up unit done; credit of tax paid toward it availed; same denied in adjudication and agitated herein. Held: Impugned credit admissible since the input services definition in Rule 2(l) would permit cenvat credit for such services which has nexus with business [Para 1]


Gail Gas Limited Vs CCE & ST (Dated: February 10, 2015)

CX - Assessee in ER -I return for September, 2001 had showed duty payable as Rs.1,29,541/- and they had also shown cenvat credit balance which was more than sufficient to discharge duty liability - Merit found in assessee's plea that non-payment of duty, which is a small amount for such a big company, was due to bonafide mistake - When provisions of Rule 8 (3A) of CER, 2002, requiring an assessee to pay duty through PLA without utilizing credit during the period of default beyond the period of one month have been declared as unconstitutional, impugned order itself would not be sustainable - Said order has been passed without any application of mind at all - Stay granted: CESTAT [Para 5, 6]


M/s Decotouch Paints Ltd Vs CC, CE & ST (Dated: January 12, 2015)

CE - Assessee are manufacturers of wall putti, cement and paints which were sold under brand name "Decotouch' and 'Diamond gold' and were availing SSI exemption - Revenue views that these brand names do not belong to assessee but are registered in name of M/s. Diamond Water Proof Compound Ltd., who have assigned these brand names under two assessment deeds to M/s. Diamond Retail Mart who, in turn, has assigned these brand names to assessee - Assessee were also using brand name "Ultra White", "Korean", "Samsung" Champion" and "Diamond Gold", Revenue has not identified as to whom these brand names belong, hence, assessee cannot be deprived of benefit of SSI exemption in respect of these goods - As per Vikshara Trading & Invest P. Ltd. 2003-TIOL-97-SC-CX, SSI exemption is allowed under notfn 175/86-CE and 1/93 - Amount already deposited by assessee is sufficient for hearing of matter - Stay granted: CESTAT [Para 8, 9]


Alarsin Vs CCE (Dated: April 1, 2015)

CENVAT - Omission to take registration as an Input Service Distributor is to be considered as procedural irregularity - Division bench decision needs to be followed giving precedence over decision of Single Member Bench – Appeal allowed: CESTAT [para 6, 7]



Accosoic Controls Pvt Ltd Vs CCE (Dated: March 18, 2015)

CX - Rule 6 of CCR, 2004 - Issue is regarding reversal of an amount equivalent to 10% of the value of goods cleared to SEZ developer by availing exemption Notfn - Issue is no more res integra - As per Steel Authority of India Ltd. 2013-TIOL-384-HC-CHATTISGARH-CX , there cannot be a discrimination between SEZ developer and SEZ unit - no cause for reversal/payment of amount in terms of rule 6 of CCR, 2004 - Appeal allowed: CESTAT [Para 4, 7]


M/s Ercon Composites Vs CCE & ST (Dated: November 24, 2014)

Central Excise - Exemption - appellant are engaged in manufacture of Glass Fibre, Channels, Angles, Rods, Tower, Window Rods etc., cleared to ONGC's contractor without duty under notification No.6/2006-CE [Sl.No.19] and 21/2002-Cus [Sl.No.214/ condition No.29] - Exemption denied in adjudication on the ground that the required certificate from the Directorate General of Hydro Carbons was not produced; duty demand along with interest and penalty under Section 11 AC confirmed; upheld by Commissioner (Appeals) and agitated herein.

Held: Appellant had supplied the goods by availing full duty exemption under Notification No. 6/06-CE (Sl. No. 19) against international competitive bidding to M/s Essar Offshore Subsea Ltd. who were to use these goods for petroleum operations of ONGC - no dispute that the same goods if imported into India would be exempt from basic customs duty as well as additional customs duty in terms of Sl. No. 214 of the table to the notification subject to the fulfillment of the certain conditions prescribed - only point of dispute is regarding the condition regarding production of certificate from Directorate General of Hydro Carbon; this very issue stands decided in the appellants favour by the Bombay Bench of the Tribunal in the case of Kent Introl Pvt. Ltd., wherein it was held that the condition No. 29 referred of the Notification No. 21/02-CUS (Sl. No. 214) regarding production of a prescribed certificate for Directorate General of Hydro Carbons is not applicable to the sub-contractors who are domestic manufacturers - impugned order is not sustainable; and the same is set aside. [Para 6]


M/s Atcom Technologies Ltd Vs CCE & ST (Dated: March 27, 2015)

CX - MODVAT/CENVAT - Relevant date for determination of availability of MODVAT/CENVAT credit is the date of receipt of capital goods in the factory and if on that date credit was not admissible, it cannot be allowed subsequently: CESTAT


Audco India Ltd Vs CCE (Dated: February 23, 2015)

Central Excise - Demand - appellants are manufacturers of industrial valves; investigation revealed that they have not paid appropriate excise duty on the scrap generated at the job worker premises from the goods sent and processed under rule 57F (4) of Central Excise Rules, 1944 and they also removed capital goods to their job workers premises without reversal of credit - Demands adjudicated with interest under various sub rules of Rule 57U apart from penalty under Rule 173Q of erstwhile CER 1944 - When the matter was agitated before the Tribunal, the demand was upheld and the penalties imposed under Section 11AC, 57U and 173Q and the interest demanded under Section 11AB and under Rule 57U (8) were all set aside - Revenue took the matter to the HC who remanded it for denovo consideration.

Held: Gross violations clearly brought out in the findings of the adjudication order; evident from the records that the appellants have paid the duty only on 9.3.99 i.e. after the department detected the duty evasion - Since the suppression of facts is established beyond doubt the adjudicating authority has rightly invoked Section 11AC and Section 11AB for imposition of penalty and the interest and rightly restricted the penalty under Section 11AC and interest under Section 11AB only on the demand amount covered for the period from 28.9.1996 - . As held by the apex court in the Dharmendra Textile Processors case, once mens rea with intention to evade payment of duty is established, penalty is sustained [Para 9]

Appellants are liable for penalty under Section 11AC, interest under Section 11AB and under Rule 57 U (6) and Rule 57U (8) of CER prospectively for the demand amount covered from 28.9.96 - in the present case, the appellants have not complied the provisions of Section 11AC as they have not paid the interest demanded under Section 11AB and the reduced penalty within 30 days of the communication of the adjudication order; their case is not covered under 3rd proviso of Section 11AC - their letter dt. 19.11.2009 addressed to Range Superintendent informing that they have remitted 25% of total penalty under Section 11AC under protest after receipt of the High Court order is not acceptable - no evidence to show that payment of interest demanded under Sec 11AB and Rule 57U(8); and reduced penalty paid before 30 days of receipt of adjudication order - impugned order sustainable and the appellants are not eligible for the reduced penalty of 25% of the duty amount - impugned order is upheld except waiver of penalty under Rule 173Q. [Para 10, 11]


Shri Ghanshyamdas C Goyal Vs CCE (Dated: April 15, 2015)

CX - Co-appellant cannot be exonerated from penalty imposed u/r 26 of CER, 2002 even if the main appellant has paid the duty, interest and 25% of penalty in terms of proviso to Section 11A(2) of CEA, 1944 - Immunity is available to only those persons to whom the notice is issued u/s 11A(1) - However, considering the fact that total amount of duty confirmed of Rs. 2,79,803/-, interest and 25% of penalty has been paid by the main appellant, personal penalty of Rs. 50,000/- imposed on the co -appellant is higher side, therefore, same reduced to Rs. 25,000/- - Appeal partly allowed: CESTAT [para 5]



Bajaj Motors Ltd Vs CCE (Dated: February 11, 2015)

CENVAT - Rule 2(l) of CCR , 2004 - Credit sought to be denied on the ground that in

the invoices, the name of the service was not mentioned - Manpower recruitment agency mentioned in the invoice instead of Man power recruitment service - input service cannot be denied on this ground - order set aside to this extent: CESTAT [ para 6]

CENVAT - Outdoor Catering Service - Rule 2(l) of CCR , 2004 - As per amended statute with effect from 1.4.2011, outdoor catering service has been excluded from the definition of input service - appellant is not entitled to take Input service credit on Outdoor catering service of Rs.78 ,312 /- - provision denying input service credit on outdoor catering service came into existence with effect from 1.4.2011 - accumulated SCN issued to the appellant in 2012 by invoking the provision of Rule 2(l) of CCR , 2004 as existed prior to 2011 - Therefore, penalty is not imposable on the appellant, interest payable: CESTAT [ para 7]


M/s A K Multimetals Vs CCE & ST (Dated: February 27, 2015)

CENVAT - Rule 9 of CCR , 2004 - Assessee is required to ensure that the input on which Cenvat Credit is taken the relevant document is accompanied or not - Admittedly, in this case the appellant is able to produce the invoice against which appellant has availed Cenvat Credit and same has been entered in their RG -23 Register - appellant also produced weightment slips before adjudicating authority - Therefore, the burden is cast on the revenue to prove that this is only a paper transaction and goods have not been received by the appellant at all - as revenue failed to do so, charge against the appellant that they have not received goods and it was only the paper transaction is not sustainable - Appeal allowed with consequential relief: CESTAT [ para 8, 9]


M/s Alfa Synthetics Vs CCE (Dated: December 31, 2014)

Central Excise - Clandestine clearances - appellants were engaged in manufacture of Polyester Texturised Yarn; officers visited factory premises and detected shortage of physical stock of finished goods vis-a-vis RG1 - Confiscation with RF option; Duty demand confirmed with interest in adjudication and penalties imposed on firm [Sec 11AC of Central Excise Act 1944] and individual [under Rule 209A of the Central Excise Rules 1944]; upheld by Commissioner (Appeals) and agitated herein.

Held: Appellant paid the entire amount of duty along with interest and penalty of 25% of the duty so determined within 30 days of communication of the adjudication order; hence balance amount of penalty as imposed is liable to be waived under clause (c) of Section 11AC(1) - the goods are not available; Tribunal ruling in Kay Bee Tax Spin case applicable; and therefore, the confiscation of the goods and imposition of RF is not sustainable - penalty was imposed on the partnership firm under Section 11AC of the Central Excise Act 1944 and therefore the penalty imposed on the partner under Rule 209A of erstwhile rules is not justified in terms of the Gujarat HC ruling in Pravin N Shah case - impugned order modified to the extent that penalty under Section 11AC imposed on the appellant No.1 would be 25% of the duty as per Clause (c) of Section 11AC (1) of Central Excise Act 1944 and confiscation and redemption fine are set aside - penalty on appellant No.2 is set aside. [Para 6, 7, 8]


Raj Laxmi Products Pvt Ltd Vs CCE (Dated: February 03, 2015)

Central Excise - Clandestine clearances - investigation launched by the DGCEI on the appellant firm engaged in manufacture and sale of Ghutka/Pan Masala; who concluded clandestine clearances, suppressed production and illicit transportation through railways - demands adjudicated (a) against RPPL under proviso to Section 11A(1) of Central Excise Act, 1944 along with interest under section 11AB ibid; amount paid by them during investigation appropriated towards this demand, (b) penalty on RPPL under section 11AC of Central Excise Act, 1944 read with Rule 25 of the Central Excise Rule 2002; (c) confiscation of the cash seized from the residential premises of the individuals (Shri Harish Kr. Makhija and Shri Hira Lal Makhija) under section 121 of Customs Act, 1962 read with section 12 of the Central Excise Act, 1944 and (d) penalty on each individual under rule 26 of the Central Excise Rule, 2002 - agitated by the firm and individuals herein.

Held: The excess stock of Supari, Gutkha and Packing material by itself cannot be treated as an evidence of unaccounted manufacture or clearance of 'Kimti' Brand Gutkha by RPPL during the period to which the entries in the notebook recovered from Shri Manoj Gupta pertain - For that period, there is no evidence of unaccounted purchase of principal raw material - Regarding recovery of cash from the residential premises of the individuals, in both the cases the stand of the appellant has been that this cash was meant for purchase of some property and was not for the sale proceeds of unaccounted Gutkha - in view of the judgment of the Apex Court in the Pandit DP Sharma case, the onus to prove that the currency represented sale proceeds of the clandestinely removed goods in on the department and it is the department which has to lead cogent evidence in this regard; absent in the instant case - currencies recovered from the residential premises of the individuals cannot be held to be sale proceeds towards the clandestinely cleared goods. [Para 6]

According to the statement of Shri Manoj Gupta, the entries represented the details of the consignment of 'Kimti' Brand Gutkha booked through him with railways for transportation and the same consis t of the railway receipt number, the number of packages and the date of RRs - however, the Department has not obtained the copies of the RRs from the railways, in absence of which it cannot be inferred as to whether the RR numbers mentioned in the diary of Shri Manoj Gupta represent actual railway receipts under which certain consignments had been booked - Although Shri Manoj Gupta in his statement mentioned Shri Sumit Kumar stating that he used to be informed by Shri Sumit Kumar about the arrival of the consignments for booking and it is Shri Sumit Kumar who used to make cash payments for the same, but no enquiry with Sumit Kumar, who during that period was an employee of RPPL, has been made and absolutely no statement of Shri Sumit Kumar had been recorded - merely on the basis of the entries in the notebook recovered from Shri Manoj Gupta under the heading of 'Kimti' coupled with his statement, it cannot be concluded that those entries represent clandestine clearances of the consignments of 'Kimti' Brand Gutkha by RPPL and demand on this basis cannot be confirmed against RPPL - In this case, even the railway receipts under which the consignments of 'Kimti' Brand Gutkha are alleged to have been clandestinely cleared, had been booked are also not on record and it is not known as to whether the RR numbers mentioned in the notebook of Shri Manoj Gupta under the heading 'Kimti' represent the actual railway receipt or not; therefore, the duty demand against RPPL is not sustainable - hence no question of imposition of penalty on Shri Hira Lal Makhija and Shri Harish Kumar Makhija under Rule 26 of the Central Excise Rule 2002 - impugned order unsustainable and set aside. [Para 7, 8, 9]


M/s Ambica Organics Vs CCE & CC (Dated: March 4, 2015)

CX - Clandestine removal-Entire case was made out on the basis of statements of the buyers and the computer printouts-Commr (A) has already held that the evidentiary value of the similar pre-drafted computer statements is weak-Investigating officers have failed to comply with the conditions of S. 36B of the Act in r/o relying upon compute r print out - there is no adequate material available on record to establish the

clandestine removal of goods - Demand set aside and appeals allowed: CESTAT [ para 7, 10, 11]



CCE Vs M/s Plethico Pharmaceuticals Ltd (Dated: March 16, 2015)

CX - Classification - "Travisile" lozenges and "Plethico Byte" are correctly classifiable under heading 3004 of the CETA, 1985 as ayurvedic medicines as claimed by assesse-"Actifresh"and"Plethico Mint"are classifiable as sugar confectionery under heading 1704 as proposed by Revenue and the Appellant would be liable to pay duty on this basis alongwith interest-duty shall be quantified by the Assistant Commissioner - Revenue appeal partly allowed: CESTAT [ para 9, 10, 11, 13]


M/s Jindal Photo Films Ltd Vs CCE (Dated: February 19, 2015)

CX - Refund - Assessee reduced the price and filed revised price list before authorities - Assessee has given discount to their customers which contains reduction in price plus duty - But, they continued to pay duty on the price indicated in original price list - After approval of revised price list, assessee filed re fund claim of excess duty paid by them - On perusal of calculation sheet and invoices provided by assessee, it is found that while granting discount to their customers, assessee included the prices reduction plus duty component and same has been ignored by lower authorities - Assessee has been able to prove that they have not recovered excess duty from their customers - Therefore, assessee has discharged burden of unjust enrichment and consequently, is entitled for refund claim - Appeal allowed: CESTAT [Para 2, 8, 9]


M/s Bajrang Wire Products Pvt Ltd Vs CCE & ST (Dated: January 22, 2015)

Central Excise - CENVAT credit - input Cenvat credit on outward transportation services denied in adjudication on the premise that although the goods are sold by the appellants on FOR basis but in the invoice, freight is shown separately - demands confirmed and agitated herein.

Held: In terms of the Ambuja Cement ruling read with Board Circular dated 23.08.2007, assessee disentitled to credit of outward transportation service - ineligible credit unearthed only with audit intervention, hence extended period rightly invoked [Para 5, 6]


M/s Swastik Pipes Ltd Vs CCE (Dated: January 16, 2015)

CX - Assessee cleared pipes to Kerala Water Authority at nil rate of duty by availing full duty exemption under notfn 6/2002-CE (Sl.No.196 A) as amended by notfn 47/2002-CE - Revenue views that the storage tank is located on the hill and the pipes used for carrying water beyond that storage tank are not eligible for exemption - On account of hilly area between water source and water treatment plant, the water had to be carried to a temporary storage facility on hill by booster pumps, the temporary water facility on the hill cannot be treated final storage facility and benefit of

exemption notfn can not be confined only to the pipes needed for the supply to temporary storage facility on hill - Appeal allowed:CESTAT


M/s JCT Ltd Vs CCE (Dated: January 5, 2015)

CX - Refund - Assessment has been finalized upto spindle stage on 15.01.2004 - SCN was issued to appellant for the same period although on some other ground - Once the assessment is reopened then all issues can be raised by appellants and as such the Adjudicating Authority was bound to consider refund claim on merits - When SCN was issued on 29.12.2004 for the said period, appellant was at liberty to raise all the issues in defence of SCN issued to them - Order dated 15.01.2004 is non est and non cooperative - Impugned order set aside and matter remanded to adjudicating authority: CESTAT [Para 5, 6, 7, 8]


CCE & C Vs M/s Shalini Plywood Pvt Ltd (Dated: February 18, 2015)

CX - 8/99-CE - Brand name - Denying SSI exemption & confirming the demand by holding that brand name does not belong to the respondent company on the ground that earlier the company was under different management is absurd and beyond common sense - finding of Commissioner(A) is unambiguous and proper and legal - Revenue appeal dismissed: CESTAT [para 5]



Laurel Wires Ltd Vs CCE (Dated: February 9, 2015)

CX - Appeals of applicants were dismissed only on the ground of non-prosecution – As per Balaji Steel Re-Roling Mills - 2014-TIOL-92-SC-CX-LB , appeal should be disposed of on merit - Applications for restoration of appeals are allowed and appeals are restored to its original numbers: CESTAT [Para 4, 4.1]


CCE Vs M/s Consolidated Hoists Pvt Ltd (Dated: February 18, 2015)

CX - Revenue in appeal - Duty amount involved is less than Rs. Five Lakhs - As per Government Litigation Policy F.No. 390/MISC/163/2010/JC and decision in Presscom Products 2011-TIOL-889-HC-KAR-CX , Revenue appeal is dismissed without going into merit of issue: CESTAT [para 1]


K G Naidu Mills Vs CCE (Dated: December 11, 2014)

Central Excise - Valuation - instant dispute as to whether (a) transportation cost of input sent to the job worker's premises shall be included in the assessable value of the goods manufactured by the said job worker; and (b) the handling charges incurred by the job worker-appellant for unloading the goods by its own workers shall

be includible in the assessable value.

Held: Written submissions filed by the appellant do not disclose whether the transportation cost can be disintegrated from the contract between the manufacture and the job worker; unless there is a clear disintegration made out by evidence, the appellant fails on this count - handling charges are integrally connected with the input coming to the premises of the job worker and cannot be disintegrated - For no disintegration, appeal fails on this count also - It does not make difference to law as to whether unloading is done by workers from outside or own workers of appellant since every activity involves cost whether expressed or intrinsic - non inclusion of value of cost of waste arising during the course of manufacture is not raised by the appellant in the written submissions nor in appeal; Tribunal cannot create a jurisdiction for itself to decide the issue not before it. [Para 2, 3, 5]


M/s Dinesh Tobacco Industries Vs CCE & ST (Dated: January 15, 2015)

Central Excise - Annual Capacity based duty - appellant are manufacturing ' Sada Pan Masala' as well as 'Zarda' and governed by Rule 10 of Pan Masala Packing Machine (Capacity Determination and Collection of Duty) Rules 2008 and Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules 2010 - duty unpaid for period of closure and belatedly paid pro rata for working period - Revenue viewed duty payable as per ACDO, confirmed demands, agitated herein.

Held: In terms of the Candex Chemical Fibres ruling, appeal against demand under ACDO by Commissioner (Appeals) before the Tribunal held maintainable - on merits, Division bench order in Shree Flavors case squarely applicable - the factory of the appellant was closed for the period 25.07.2012 to 21.08.2012 and duty was not paid by the appellant on 05.08.2012 as their factory was not functioning but when the factory started functioning on 22.08.2012 they have paid the duty on 24.08.2012 - appellant liable to pay interest for the period of 05.08.2012 to 24.08.2012 which stands paid; appellant is not required to pay duty; impugned order is set aside [Para 6, 7, 8]


M/s Ess Kay Enterprises Vs CCE (Dated: January 20, 2015)

CX - Whether during the period of default in discharge of monthly duty liability for a particular month beyond the period of one month from due date, the assessee is required to pay duty without utilising the Cenvat credit - In the case of Indsur Global Ltd 2014-TIOL-2115-HC-AHM-CX Gujarat High Court has gone into the constitutionality of provisions of Rule 8 (3A) and has held in clear terms that the condition contained in sub-Rule (3A) of Rule 8 for payment of duty during the period of delay beyond the period of one month from the due date without utilising the Cenvat credit, till the Assessee pays outstanding amount is constitutional - Stay granted: CESTAT [Para 6]


Farmparts Company Vs CCE & ST (Dated: February 5, 2015)

CX - Assessee engaged in manufacture of Tractor Parts and Forging - On physical verification of goods, they were contained 52 pallets and 85 cardboard cartons (duly packed containing Tractor parts and forgings) which were lying unaccounted in the

factory premises of assessee and were in fully finished condition - If preventive staff did not visit factory premises of assessee, fully finished goods would have been cleared clandestinely - Goods are liable for confiscation and consequently redemption fine and penalty are imposable - Goods were meant for export, therefore, redemption fine is reduced to -Rs.1 lakh and penalty is reduced to Rs.50,000/-: CESTAT [Para 6, 7]


M/s GTP Granites Ltd Vs CCE (Dated: February 3, 2015)

Central Excise - Exemption - goods procured duty free by the EOU appellants were used for raising of granites from the quarries owned by State of Tamilnadu - Revenue denied benefit of Notification No. 37/2000-CE dated 8.5.2000 on the ground that the appellant neither owned nor leased the land from which granite was lifted; adjudicated demands, agitated herein.

Held: The appellant was user of the land in accordance with agreement - Under Rule 8A of Tamilnadu Minor Mineral Concession Rules, 1959, grant of quarry lease is the domain of the State Government, who has equal power to permit use thereof under any other arrangement for raising the output from the quarry - Since the quarry belongs to the State and appellant was user thereof, the goods procured without payment of excise duty used in quarrying granite and processing thereof for export is not disentitled to exemption benefit under the notification - Not owing lease has not debarred the appellant to quarry granite and process the same; if the condition of processing of procured granite from the quarry of the State under an agreement is fulfilled by the 100% EOU appellant, benefit of the notification is undeniable since any denial thereof would defeat the object thereof. [Para 4]


M/s The Lakshmi Mills Co Ltd Vs CCE (Dated: January 7, 2015)

Central Excise - Valuation - simple question involved herein is whether the goods processed by a processor belonging to the appellant when cleared for delivery at the depot of the appellant shall be liable to duty.

Held: The manufacturing process was indeed carried out and the goods sent by the appellant to the processor upon payment of duty had undergone value addition - The impugned goods all along carried the title of the appellant till delivered at its depot; hence the value addition is not immune from duty.


M/s Cadbury India Ltd Vs CCE (Dated: March 10, 2015)

CX - Rule 6 of CCR, 2004 - Cocoa Shells arise unavoidably during the process of manufacturing cocoa butter and cocoa powder from cocoa beans - they are nothing but by-product or waste - no question of payment of any amount under rule 6(2) of CCR, 2004 when Cocoa shells are cleared at Nil rate of duty - [para 5] -



Asiatic Gases Ltd Vs CCE (Dated: January 22, 2015)

CX - Appellant is manufacturing acetylene gas on job-work basis and principal is supplying inputs - Appellant is paying excise duty on sale -price at which the goods are sold by their principal - Revenue's contention in applying the value of comparable goods is not agreeable - It is settled law that prices of different class of buyers can be different, and same is acceptable - Value adopted by appellant job worker is correct and legal and is as per settled law Ujagar Prints - 2002-TIOL-02-SC-CX - Order set aside and appeal allowed: CESTAT [Para 5, 6, 8, 9]


G R Woolen Mills Pvt Ltd Vs CCE (Dated: January 21, 2015)

CX - Assessee clearing the goods on payment of duty and also without payment of duty under Notfn 29/2004-CE and Notfn 30/2004-CE - In manufacture of said item they are also using plastic packaging material - Assessee has given the data relating to packaging material on which they have availed Cenvat credit and on which they have not availed Cenvat credit - Benefit of said Notfn is available only when no credit on inputs is taken - Appellant has not produced said data to show that they have not availed or utilized packaging material (on which credit of duty was taken) in manufacture of exempted goods - Rule 6(3) of CCR is not relevant as exemption itself is subject to condition of non-availment of Cenvat Credit on inputs – Case remanded to original authority: CEST AT [Para 2, 6] -


M/s Aquapharm Chemical Pvt Ltd Vs CCE (Dated: January 8, 2015)

CX - Appellant, a 100% EOU cleared by-product namely Hydrochloric Acid in domestic market on payment of excise duty by availing concessional Notfn 23/2003-CE - Revenue contends that by-product was cleared without obtaining permission for DTA sale, so, they are not entitled for concessional rate of duty under said notfn - Appellant referred to LOP, which was issued in respect of by-product i.e. Hydrochloric Acid - As per Circular 31/2001-Cus, if LOP in respect of by-products is obtained, it is sufficient requirement for sale of byproduct in DTA - Matter remanded to original adjudicating authority with directions: CESTAT [Para 5]


M/s Wabco India Ltd Vs CCE (Dated: February 6, 2015)

Central Excise - CENVAT credit - input services credit availed on (i) Warranty Services, (ii) Photograph Services, (iii) Hotel Bills/ Labour Charges for poori/chapathi preparations, (iv) Canteen Equipment Alterations, (v) Guest House Maintenance and Ayudha Pooja Work, (vi) R&D Services, (vii) Advertisement for Board Meeting and (vii) Ticket Booking & CH/AAA denied in adjudication and agitated herein.

Held: So far as the service tax paid on the Warrant Services, Photograph Service, Canteen Equipment Alteration Services and R&D Services are concerned the reasoning given by the appellant acceptable insofar as the relevancy of the expenditure to the manufacturing and business activities of the appellant is appreciable - credit of the quantum on these services shall be admissible and the other services are not qualifying for eligibility to Cenvat credit for no good reason stated. [Para 3].


M/s Gallant Ispat Ltd Vs CCE & ST (Dated: January 22, 2015)

CENVAT-Welding electrodes were used to remove runners and risers from the ingots and sometimes for cutting of steel bars and billets etc. -welding electrodes also used in fabrication /manufacture of capital goods of plant and machinery-Credit is admissible -appeals allowed: CESTAT [ para 6]


Banco Products India Ltd Vs CCE, C & ST (Dated: December 17, 2014)

CX - CENVAT - Appellants are engaged in the manufacture of Radiators and Gaskets (Ch 84 and 87); paid ST under reverse charge mechanism on Commission paid to their agents outside India and availed CENVAT credit thereon - credit denied along with imposition of interest and penalty on the ground that no material is available on record that the activity of the foreign agent is in the nature of sales promotion - Gujarat High Court in the case of Cadila Healthcare Ltd had observed that it is to be decided on the basis of materials on record as to whether the services were sales promotion or otherwise - Adjudicating authority should have examined the documents as enclosed with the reply to SCN before arriving at a conclusion - Matter remanded: CESTAT [para 6, 7]


M/s Astra Lifecare India Pvt Ltd Vs CCE & ST (Dated: February 23, 2015)

CE - Refund of unutilised balance of CENVAT Account - Assessee engaged in manufacture of Pharmaceutical products and availing facility of CENVAT credit - As per assessee's own case vide final order No. A/11356/2014, impugned orders are set-aside and matters remanded to Commissioner (A) to decide the issue afresh: CESTAT [Para 3, 6]


M/s Sundram Fasteners Ltd Vs CCE (Dated: January 20, 2015)

CX - M/s Sundram Fasteners sent imported bright bars directly to M/s Juneja Bright Steels Pvt. Ltd. for conversion into bright wire rods on job work basis - M/s Juneja Bright Steels Pvt. Ltd. had obtained ST registration treating their activity as BAS and were paying ST on job charges and were also filing ST-3 return - Just because subsequently Department takes the view that the activity of M/s Juneja Bright Steels Pvt. Ltd amounts to manufacture and bright wire rods manufactured by them would attract Central Excise duty, M/s Sundram Fasteners Ltd. cannot be accused of receiving the wire rods with knowledge that the same were non-duty paid and liable for confiscation - Imposition of penalty on M/s Sundram Fasteners Ltd. under Rule 26 (1) is not sustainable and as such they have strong prima facie case in their favour - Stay granted: CESTAT [Para 6]


M/s Steelbird Hi Tech India Ltd Vs CCE (Dated: February 13, 2015)

CX - Appellant entitled to claim remission of duty in respect of finished goods destroyed in fire - rule at the material time did not provide any condition regarding reversal of credit taken in respect of inputs used in such goods - appeal allowed: CESTAT [para 8, 9]

CX - Remission of duty on unfinished / semi-finished goods destroyed in fire - as these goods are not marketable, remission of duty cannot be claimed - no cause for reversing credit on input contained in unfinished goods / semi-finished goods lost in fire as there is no provision for reversal of CENVAT Credit - appeal allowed: CESTAT [para 10]

CX - There is also no provision in the Cenvat Credit Rules to reverse proportionately CENVAT Credit on capital goods which was lost in fire or were not used - appeal allowed: CESTAT [para 11]


M/s Thakkar Tobacco Products Pvt Ltd Vs CCE (Dated: February 6, 2015)

CX - Assessee operating under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules 2008 and had been paying duty as per Rule 7 under said Rules - In situations where after payment of duty by 5th for a particular month, if factory remained closed for a period of 15 days or more, for the subsequent month, they adjusted the amount of abatement under Rule 10 and paid the balance - Revenue views that assessee should have paid the duty for subsequent month in full and have claimed the abatement separately - Apart from Circulars dt.30.08.1997 and 15.09.1999, in a series of judicial pronouncements, a co nsistent approach has been taken to effect that in case of such adjustment of duty which is mandatorily required to be abated, Revenue cannot insist upon recovery of amount so adjusted - Appeal allowed: CESTAT [Para 8, 9, 10]


M/s Mahindra & Mahindra Ltd Vs CCE & ST (Dated: March 25, 2015)

CX - Valuation - s.4 of CEA, 1944 - Rule 7 of Valuation Rules, 2000 - price prevailing at the depot from where the goods are finally sold shall apply - When the facts came to the notice of the Department in January, 2001, subsequent to that it cannot be said that there was suppression on the part of the appellant - Appeals partly allowed: CESTAT [para 5, 5.1]



M/s Swati Menthol And Allied Chem Vs CCE (Dated: December 31, 2014)

CX - Assessee is a manufacturer of DMO (De-Menthalised Oil) as Mentha Oil is manufactured by farmer as agricultural product and exempted from payment of duty as well as sales tax - For purchase of Mentha Oil, assessee is required to issue form 21 under UP State Sales Tax Provision to farmers - A truck carrying Mentha Oil was detained which start from Sambhal to factory in Rampur and goods were seized - Revenue has made the case only on basis of test report of Shriram Institute to say that as goods are having 26% of Mentha Oil, therefore, are not Mentha Oil but of DMO - DMO carries more than accumulated solo impurities which fact is ignored - Statement of truck driver and Form 21 supports the case of assessee, as no statement of farmers has been recorded - As the goods are not required to be seized,

same are not liable for confiscation - Order set aside and appeal allowed: CESTAT [Para 2, 6]


M/s Tubewell Workshop And General Industries Vs CCE (Dated: January 13, 2015)

CX - Goods received by appellant in their factory as the goods have been manufactured from inputs of same has been cleared on payment of duty - No statement of supplie r of goods and transporter have been recorded to corroborate the allegations against appellant - Appellant produced a certificate from supplier of goods that they have supplied the goods and received payment through account payee cheque - These facts have not been controverted by revenue at any stage - As the goods have been received and duty has been paid there on - Appellant are entitled to take Cenvat Credit: CESTAT


M/s Varica Herbs Vs CCE (Dated: February 6, 2015)

Central Excise - CENVAT credit - input services credit relating to testing and certification charges, training, courier services, renting, security services, telephone charges, transportation charges, AMC and printing and stationery denied in adjudication; demands confirmed and agitated herein.

Held: Actual usage of services supported by substantial evidence on record demonstrate relevancy of services to manufacture and business of the appellant - No contrary evidence of use of services elsewhere; utilization for business as well as manufacture - denial of CENVAT credit unjustified - However, expenditure on training, printing and stationery could not satisfy as to relevancy thereof to the manufacture activity; no CENVAT credit on these two items shall be allowed - credit on the rest of the items clamed shall be allowed. [Para 4]


M/s Personna Cosmetics Vs CCE & ST (Dated: March 20, 2015)

CX - Shortage of finished goods - Demand of duty on shortage of finished goods was confirmed on the basis of statement of Shri Hakim Thanawala - CE officers visited appellant's premises on the basis of intelligence and thereafter how they accepted Shri Hakim Thanawala as Director of Company when appellant firm is registered with CE authorities as partnership firm - No material available on record to establish that Shri Hakim Thanawala has any connection with appellant firm - It is the responsibility of Revenue to identify the person while recording statement - No statement of any employee of appellant firm was recorded - Demand of duty alongwith interest and penalty on Appellant firm can not be sustained - Considering the fact that Shri Hakim Thanawala is an employee of another unit, therefore, penalty is reduced to Rs. 25,000/-: CESTAT [Para 9, 10, 12]

2015-TIOL-676-CESTAT -MUM-LB

Mahindra & Mahindra Ltd Vs CCE (Dated: February 27, 2015)

CX - Classification of Commander Vehicles, whether under heading 87.02 or 87.03 of the CETA, 1985 - In the absence of any expert opinion or advice from ARAI or VRDE,

Larger Bench handicapped in taking a final view - Matter remanded to adjudicating authority: CESTAT LB[para 5.1 to 5.10, 6]



Jsw Salav (Steel) Ltd Vs CCE (Dated: March 20, 2015)

CENVAT - Rule 2(l) of CCR, 2004 - If excise duty paid on Tugs & Barges are not available as credit, it does not stand to reason that service tax paid on insuring these goods should be available as credit under CCR 2004 - Insurance for assets utilised within the factory is clearly admissible - It is not understood how Insurance done on Contractors Plant and Machinery is an input service as it is the contractors who are undertaking the job work for the appellant - For the contractor or the job worker it may be an input service but not to the appellant who does not own these goods - Matter remanded for ascertaining quantum of eligible credit: CESTAT [para 6.1, 6.2, 6.3, 7]



CCE Vs Silver Grace Polypack (Dated: February 9, 2015)

CE - Restoration of appeal - From the letter dated 25.03.2014 of the Regis try to the CPIO, CESTAT, New Delhi, which was sent to the respondent in response to their application under RTI Act it is clear that there is no acknowledgement of the service of the appeal available with the Registry and also there is no acknowledgement of the service of the notice fixing the date of hearing on 02.01.2014 - In view of this, there is merit in the respondent's plea that they had neither received the copy of the Revenue's appeal nor they had received the notice of hearing of the appeal on 2.1.2014 - Non-appearance of the respondent at the time of hearing of the matter on 2.1.2014 is justified - Final order dated 2.1.2014 is recalled and the appeal is restored for fresh hearing: CESTAT [ para 7]


M/s Tamil Nadu Rolling Mills Ltd Vs CCE (Dated: January 30, 2015)

Central Excise - Compounded levy scheme - demands with interest and penalty agitated herein.

Held: In view of divergent Court rulings, with Punjab & Haryana HC decision in favor of appellant prior to the Chennai HC ruling, duty demand confirmed whereas interest and penalty waived.


M/s Prem Products Vs CCE & ST (Dated: December 15, 2014)

Central Excise - Stay / dispensation of pre deposit - appellants are manufacturers of Pan Masala and Gutkha; discharging duty liability under Pan Masala Packing Machine (capacity determination and collection of duty) Rules, 2008 - during the month of March 2010, May 2010, August 2010 and October 2010 they used the same machines

for the manufacture of the Pan Masala/ Gutkha Pouches of RSP 50 Paise as well as of one Rupee - The department invoking the first proviso to PMPM Rules, 2008 demanded duty in respect these packing machines by treating each of these packing machines as two operating packing machines; adjudicated duty demand along with interest and penalty; agitated herein.

Held: Rule 8 becomes applicable when during a month, a manufacturer of Gutkha/ Pan Masala commences the manufacture of pouches of a "new RSP" on an existing machine by which he was earlier manufacturing pouches of a different RSP - point of dispute is as to what is the "new RSP" and whether a RSP different from the existing RSP, but of the same RSP slab of the different RSP slabs mentioned in Rule 5, can be treated as a "new RSP" - even if, for example, the machine during that month made pouches of 25 paise, 50 paise and 75 paise per pouch, the deemed production under Sec 3A read with Rule 8 would be 37,44,000/- pouches only - If first proviso to Rule 8 is invoked on such a case, it would result in charging duty on the same production thrice which is not permissible as excise duty can be charged on the quantity of the goods manufactured, whether on actual basis or on deemed basis - Rule 5 and first Proviso to Rule 8 have to be read harmoniously; it cannot be given an interpretation which result in levy of duty on the quantity which is more than the quantity of Gutkha/ Pan Masala deemed to have been manufactured per month per machine as per the provisions of Rules - new RSP referred in first proviso to Rule 8 would be the RSP of a different slab, and not the RSP of the same slab - impugned order which treats the RSP same slab i.e. Rs. 50 Paisa per pouch and Rs. 1 per pouch as different RSPs is not correct as viewed in the rulings relied upon by the appellant - requirement of pre-deposit of the duty demand interest there on and penalty is waived. [Para 6, 7, 8]


M/s Nidhi Metal Auto Components Pvt Ltd Vs CCE (Dated: January 27, 2015)

CX - CENVAT - it would be impractical to require the assessee to go behind the records maintained by the first stage dealer – allegation has been made against the appellant on the basis of statement given by the manufacturer, dealer/supplier of the goods, but no investigation has been conducted at the end of the appellant - Appeal allowed: CESTAT [para 7, 8]



M/s Sunita Ispat Pvt Ltd Vs CCE (Dated: January 14, 2015)

Central Excise - Offence case - appellant firm engaged in the manufacture of MS ingots from scarp; officers visited factory and detected stock shortages of finished goods vis -à-vis records; katcha chits with particulars of scrap purchases seized from residential premises of individuals, who are partners in the firm; on the basis of investigation, suppressed production, clandestine clearances was alleged; demands confirmed with interest and penalty; agitated herein.

Held: Demands on two primary counts (1) excess electricity consumption coupled with katcha slips inter alia, suppressed production and clandestine clearances of the same; and (2) clandestine clearance of stock short-detected - In respect of (1), charge against the appellant has been dropped on the ground that demand based on report of Dr. N K Batra, Prof. IIT Kanpur is not acceptable as held by Apex Court in the case of R A Casting - charge of clandestine manufacture and removal already held by Commissioner as not sustainable; therefore, duty demand is also not sustainable - show cause notice although discussed that certain katcha slips were found during investigation for purchase of scrap on the basis of these slips, no demand of duty is

proposed on that basis - as there is no duty demand in the show cause notice corresponding duty demand unsustainable and set aside; consequently the demand of interest and imposition of penalty on this count is also set aside. [Para 6, 7]

During the course of investigation finished goods were found short and the appellant has paid the duty thereon; but the charges of clandestine removed have been dropped - it cannot be held that goods have been cleared clandestinely - Although the appellants has paid the duty that might be to settle the issue at that stage, but from the records it is not coming out that the charge of clandestine removal has been proved with any supportive evidence except the goods were found short during the course of investigation - appellant is not contesting the duty demand hence cannot claim refund as a consequence - when the appellant has paid the duty but there is no demand of interest proposed, charge of clandestine removal stands unapproved and hence question of imposing penalty does not arise - impugned order qua demand of duty along with interest and imposition of penalty on the main appellant and penalties co-appellant is set aside. [Para 8]


M/s The Malt Company India Pvt Ltd Vs CCE (Dated: January 13, 2015)

CENVAT - Credit taken on the strength of GAR-7 indicating the amount of ST paid on GTA service under reverse charge - the only mistake in the GAR challan is that the name of the appellant and address is correctly mentioned but the Registration number of their Khandsa road unit has been wrongly entered in the challan - credit cannot be denied for this mistake: CESTAT [ para 6]

CENVAT - Invoices on the basis of which credit had been availed bear the address of Khandsa Road unit - subsequently the service providers had made corrections in these invoices - it is not the department's allegation that on the basis of these invoices, both the Khandsa and Patudi unit have taken credit simultaneously - the Khandsa unit has also given an undertaking in this regard - denial of credit is not sustainable - Order set aside and appeal allowed with consequential relief: CESTAT [ para 7, 8]


CCE & ST Vs Gardex (Dated: February 11, 2015)

CENVAT - Rule 5, 6 of CCR, 2004 - Common inputs - Respondent manufacturing Hand tools which had been cleared on payment of duty and Garden tools wh ich are fully exempt from duty under notification no. 5/-2006-CE dated 1.3.2006 and these garden tools have been exported out of India under letter of undertaking without payment of duty - Department seeking action under rule 6 of CCR, 2004 - Commissioner( A) allowing respondents appeal - Revenue in appeal before CESTAT. Held: For an earlier period on identical issue in respect of same respondent, it is held that respondent have correctly availed the CENVAT credit in respect of the inputs for garden tools which were exported out of India and have correctly utilized the credit for payment of duty on the other dutiable final products which were exported out of India under rebate claim - Rule 5 of CCR, 2004 nowhere states that the same would not be applicable when the final products exported under bond or under letter of undertaking are the goods fully exempted from duty - Bombay High Court decision in Repro India 2007-TIOL-795-HC-MUM-CX relied upon - Revenue appeal dismissed: CESTAT [para 2, 3]


M/s Tansi Foundry Vs CCE (Dated: September 16, 2014)

Central Excise – SSI exemption – Appellant claimed benefit under Notification No. 1/93-CE dated 28.02.1993 for clearances of CI Tubes and Pipes; while they paid full duty on unmachined CI articles and ferrous waste/scrap – Revenue viewed benefit inadmissible since the appellants had not opted SSI exemption in respect of the goods under Sub-heading No. 7325.10, they are not eligible to avail the SSI exemption in the other products – demands adjudicated, upheld by Commissioner (Appeals), and agitated herein.

Held: No dispute that after amendment of the SSI exemption Notification No. 1/93 by Notification No. 59/94, the simultaneous availment of modvat and SSI exemption by the manufacturer on different goods is not permissible – no merit in the appeal; no reason to interfere with the impugned order. [Para 2]


M/s Dalmia Bharat Sugar And Industries Ltd Vs CCE & ST (Dated: January 20, 2015)

Central Excise - Stay / dispensation of pre deposit - CENVAT credit - appellant engaged in the manufacture of sugar, molasses, denatured spirit, also produces bagasse, pre ss mud and electricity which are non dutiable - Revenue viewed that input services credit availed on security agency service, goods transport agency service for transportation of the inputs up to the factory premises, manpower recruitment or supply service, internet telecom services, courier service, business auxiliary service (commission agents service) etc. used commonly for both excisable and exempted goods and that an ‘amount' under Rule 6 (3) (ii) of CCR 2004 merited reversal; that exemption under notification No.67/95-CE was unavailable for molasses cleared for manufacture of Extra Neutral Alcohol and also that credit on molasses procured from outside was not available on the quantum deployed in manufacture of exempted goods - demands confirmed with interest and penalty; agitated herein.

Held: appellant's plea in respect of input services credit is that they have already complied with the requirement of Rule 6 (3) (ii) read with Rule 6 (3A) of the Cenvat Credit Rules; the same would be examined during main appeal hearing - Duty exemption under Notification No. 67/95-CE is available only to the goods falling under the first Schedule to the Central Excise Tariff Act - When the "un-denatured ethyl alcohol of any strength" does not figure in the first Schedule to the Central Excise Tariff Act, 1985, the excisable goods produced in a factory and used within that factory for production of un-denatured ethyl alcohol would not be eligible for this exemption - duty exemption in respect of molasses manufactured in the appellant's factory and captively cleared to the distillery unit would not be admissible, to the extent the molasses was used in the manufactured of un-denatured ethyl alcohol and prima facie corresponding duty demand appears to be on a strong footing - appellant directed to deposit an amount of Rs. 5,00,00,000/- (Rupees Five crore) for compliance with the provision of Section 35F within a period of eight weeks. [Para 6.1, 7, 8]


M/s Sridhar Metal Vs CCE, C & ST (Dated: March 05, 2015)

CX - s.35F of CEA, 1944 - In the appeal procedure in Tribunal the stage of entertaining the appeal is right from the date of filing of the appeal, therefore, at the time of filing of the appeal, the appellant is required to make deposit of 7.5% or 10% of duty - Pre -deposit ordered: CESTAT [para 5, 5.1]



Cabana Estates Pvt Ltd Vs CCE & ST (Dated: December 30, 2014)

CX - Common input services used in or in relation to providing of taxable and exempted service - Assessee had not maintained separate accounts and inventory of input services meant for taxable and exempted service - As per amended Rule 6(3) of CCR, 2004, they have already revered the cenvat credit along with interest attributable to input services used in or in relation to providing exempted service - Matter, though pertaining to cenvat credit, is in respect of an output service provider and assessee is not a manufacturer, this appeal should have been numbered as ST Appeal and listed accordingly - Stay granted: CESTAT


M/s Mafatlal Industries Ltd Vs CCE (Dated: December 19, 2014)

Central Excise - CENVAT credit - appellants are engaged in the manufacture of Cotton Yarn, Non Cellulosic Spurn Yarn, Processed Man Made Fabrics, 100% Cotton Fabrics, and Mixed Cotton Fabrics; received duty paid Yarn under Basic Excise duty and Additional Excise Duty (Textile and Textile Articles) and availed CENVAT Credit - Revenue viewed that as per Rule 3(6)(b) of CENVAT Credit Rules, 2002, the appellant is not eligible to utilize the AED (T&TA) for payment of Basic Excise Duty - Impugned credit disallowed in adjudication; demand for recovery along with interest confirm ed, penalties imposed under Rule 13 of CENVAT Credit Rules, 2002 read with Section 11AC of Central Excise Act 1944; upheld by Commissioner (Appeals) and agitated herein.

Held: On plain reading of Rule 3(6)(b) of CCR, it is clear that the CENVAT Credit in respect of AED (T&TA) shall be utilized only towards payment of duty of Excise leviable under AED(T&TA) Act - With effect from 09.07.2004, AED(T&TA) was exempted in respect of clearance of the final product hence the appellant cannot utilize credit of AED(T&TA) in respect of payment of basic duty for clearance of final product - Board's circular dt.16.04.2003 was issued in respect of utilization of CENVAT Credit of Basic Excise Duty towards payment of Additional Duties of Excise (GSI) Act, 1957; whereas in the present case, the appellant utilized the AED (T&TA) for payment of Basic Excise Duty - CENVAT Credit Rules, 2002 has clearly imposed restriction of utilization of AED(T&TA) in respect of other duties - appellant cannot utilize credit of AED (T&TA) for payment of Basic Excise Duty, in terms of the Raymond Limited ruling - appellant also contended that the accumulated credit of AED (T&TA) would be eligible for refund - Tribunal in the case of Century Rayon Ltd held that even if held to be entitled to take credit of such duty paid in excess by them, would not be able to utilize the credit, the assessee is entitled to cash refund; if appellant cannot be allowed to utilize AED(T&TA), they can take a refund, if permitted under the law - no allegation of suppression of facts with intent to evade payment of duty; dispute a case of interpretation of provisions of law; no material available on records to invoke the ingredients as mentioned in Section 11AC of the Central Excise Act 1944 - imposition of penalty under Section 11AC unwarranted; impugned order modified to the effect that demand of duty along with interest are upheld while Penalty is set aside. [Para 6, 7, 8, 9]


Dry Tech Processors (I) Pvt Ltd Vs CCE (Dated: December 24, 2014)

CE - Notfn 3/2007-CE - Classification - Whether goods i.e. "Fresubin" manufactured by appellant merit classification as 'instant food mix', as claimed by assessee for purpose of duty exemption under said Notification or under category of 'food supplement' as asserted by Revenue - Affixation of additional information in pouches regarding its possible use for hospitalized patients cannot change the basic

characteristic of "Instant Food Mix" being a statutory requirement under food laws - No conceivable substantiation has been brought on record to negate the stand of assessee, which is duly endorsed by expert on concerned field vide certificate dated 16.05.2007 - Competency of said institute in furnishing the certificate cannot be questioned by revenue, especially in absence of a contrary certificate being obtained from a recognized agency of repute - Appeal allowed: CESTAT [Para 10, 13]


Mirc Electronics Vs CCE (Dated: January 20, 2015)

CX - Appellants availing CENVAT Credit of CVD/CE duty and SAD paid by them when they import the parts, components and accessories for manufacturing of Colour T.V. - Appellant had not reversed SAD at the time of removal of parts, components and accessories, but subsequently discharged duty liability along with interest - SCN invokes provisions of Rule 14 of CCR, 2004 r/w s. 11A for demanding the amount which is equivalent to an amount of SAD on parts and components cleared to co -makers - Non-reversal of SAD cannot be with intention to evade duty on such components, as the appellant had discharged appropriate duty liability of CVD/CE - Since there is revenue neutral situation, there cannot be any intention to evade duty - Order set aside and appeal allowed: CESTAT [Para 8, 9, 9.1, 9.2, 10]


M/s Dhampur Sugar Mills Ltd Vs CCE (Dated: January 28, 2015)

CX - MODVAT credit - As regards denial of Modvat Credit in respect of Steel Items for period January 1997 to March 1997, since during this period definition of capital goods, as it existed during period prior to 23.07.1996 has been substituted by a new definition which covered the goods of certain specified chapter headings and as such for this period iron and steel items would be eligible for credit as inputs only if the same had been used for manufacture of capital goods or their parts and would not be eligible for credit if the same had been used as foundation or supporting structure for machinery - Matter is remanded to Original Adjudicating Authority for de novo decision after hearing appellant regarding the use of steel items: CESTAT

CX - CENVAT credit - As regards denial of credit in respect of nickel screen and gunny bags, the credit denied only on ground that the same are not covered by the declaration - It is seen that this ground for denial is not factually correct as both the items are covered by declarations filed by appellant - denial of credit is set aside: CESTAT

2015-TIOL-623-CESTAT -BANG

CCE, C & ST Vs Shri Doodhganga Krishna Sahakari Sakkare Karkhane Niyamit (Dated: November 7, 2014)

Central Excise - Stay sought by Revenue against dropping of demand of interest - Grant of stay would result in reviving non-executable original order - Stay hence rejected.


Aabha Mouldings Vs CC,CE & ST (Dated: May 21, 2014)

Central Excise - SSI Exemption - Denial - Sustainability - Manufacturing of plastic bottles bearing brand name - Notification No. 10/2013 - C.E. (N.T.) dated 02.08.2013 provided retrospective exemption for clearances of plastic containers and plastic bottles meant for use as packing material by the person whose brand name such goods bear for the clearances from 16.06.2003 to 26.02.2010 - Period disputed is covered by said Notification - Entitled to duty exemption - In assessee's own case on identical facts , appeal was allowed - Appeal thus allowed with consequential reliefs. (Para 5)


M/s Jai Balaji Industries Vs CCE & ST (Dated: January 21, 2015)

CX - Assesssee engaged in manufacture of TMT Bars/Rods captively used in fabrication of plant and machinery in their factory premises - Exemption under Notfn. 67/95-CE was availed - Chartered Engineer's Certificate produced by assessee before Adjudicating Authority is vague and definitely difficult to verify the use of such TMT Bars/Rods in respective plant, machinery and structural - Assessee had placed another Chartered Engineer's Certificate dated 17.06.2010, furnishing the use of such TMT Bars/Rods in respective plant and machinery - Since this Certificate was earlier not placed before Adjudicating Authority, hence, same could not be verified by Department - In interest of justice, therefore, contents of Certificate and claim of assessee, needs to be verified vis -a-vis allegations in Demand Notice - Thus, matter remanded to Commissioner for necessary verification of said Certificate - Assessee is directed to deposit Rs.5.00 lakh: CESTAT [Para 2, 5]


M/s Agro Tech Foods Ltd Vs CCE (Dated: November 25, 2014)

Central Excise - Edible preparations -Classification -Appellant engaged in importing of peanut butter and undertakes re-labeling of the product with label of its own brand name - Denied Cenvat credit of duty paid on ground that final product is exempted under Sl. No. 11 of Notification No. 3/2006-CE - Whether 'Peanut butter' a nd 'Margarine' are two distinct products and not interchangeable or similar to each other -Held, issue is complicated and involves different interpretations as such requires consideration of HSN Explanatory Notes, Tariff Heading, End use, Chemical properties, etc - In view of the fact that large part of the credit has already been reversed appellant directed to deposit Rs.10 lakhs to hear the appeal - Pre -deposit of balance dues is waived. (Para 4)


CC, CE & ST Vs M/s Balaji Industries (Dated: December 2, 2014)

Excise – Appeal by Revenue – Maintainability – Duty amount involved is less than Rs. 5 lakhs – Appeal rejected following established precedents notwithstanding appeal in question was filed prior to issue of Board Circular prescribing mandatory limit for filing appeal.


CCE Vs Vyas Textiles (Dated: December 2, 2014)

Central Excise – Offence case - respondents M/s. Vyas Textiles were engaged in the manufacture of cotton yarn; officials visited the premises and found another unit, M/s

Vyas Textiles ‘B' Unit in the same premises – On investigation, Revenue viewed that the value of clearances of the two units merited being clubbed and SSI exemption to be denied – demands proposed on the cotton yarn in Cheese form cleared in the guise of Plain Reel Hank (PRH) dropped in adjudication on merits as well as limitation, and agitated by Revenue herein.

Held: department's allegation that the proprietor has deliberately obtained two registrations by changing the initials of G.M. Vyas and M.G. Vyas appears to be factually incorrect; department has not adduced any evidence to prove that M.G. Vyas is not the son of G.M. Vyas and both relates to same individual - no merit in the Revenue's allegation that proprietor has obtained registration by falsely declaring the name by changing the initials. [Para 10, 11]

Both the units have obtained central excise registration certificates much prior to the SSI exemption extended to cotton yarn vide Notification No. 90/94 dt. 25.4.94 – Both Units submitted record requesting for allowing SSI exemption up to the limit of Rs. 30 lakhs as per Notification No. 1/93 dt. 1.3.93 as amended by Notification No. 90/94 dt. 25.4.94 - evident that returns were duly scrutinized and assessed by the proper officer and accepted; that the description, quantity manufactured and quantity cleared and duty paid undisputed - adjudicating authority has rightly held that there is no suppression of facts; the respondents are eligible for SSI exemption of Rs.30 lakhs for both the units in the year 1994-95; adjudicating authority has rightly dropped the proceedings both on merits and on limitation. [Para 12]

On the issue of mis declaration of cheese yarn in the guise of PRH, the entire demand was made on the basis of sta tements recorded from seven customers, transporters and few workers of the respondent factory - burden of proof is entirely on the department to establish that there was clearance of cheese yarn either from the respondents premises - department has to establish mis declaration and evasion of duty, there should be statutory proof beyond doubt other than the statements; department has to establish through corroborative documentary evidence and not merely relying on a general statement from the customers – onus not discharged. [Para 13, 14, 15]

Patna HC ruling in CCE Vs Brims Products squarely applicable to the facts of the instant case - adjudicating authority has discussed the issues at length and has given a detailed order while dropping the demand proposed in SCN - no infirmity in the impugned order passed by the adjudicating authority; same upheld. [Para 16]


CCE Vs M/s B K Office Needs Pvt Ltd (Dated: December 2, 2014)

Central Excise - Clubbing of clearances - respondents are suppliers of Modular Office partitions, work stations and furniture; they also supply tables, chairs, computer tables etc., which are bought out items - Officers visited the premises and detected two other firms located thereat - Revenue viewed that they were interconnected units; and that their clearances were to be clubbed for assessment to CE duty - duty demands adjudicated with interest and penalties on the firms and the individual; goods held classifiable as "Systems Furniture and Work Stations" under chapter heading 9403.00; demands set aside by Commissioner (Appeals) and agitated by Revenue herein.

Held: Two issues involved, viz, Clubbing of clearances and classification of impugned goods - M/s. Tab Top and Fab Craft, manufactured general furniture such as tables, chairs, computer tables, cupboards, filing cabinets and parts of modular work stations and sold to M/s. B.K. Office - Shri S. Ramanathan procured the orders from buyers and placed to the other two firms for manufacturing of goods - M/s. B.K. Office, in their brochure claimed the goods were manufactured by them - M/s. Tab Top and Fab Craft are separate entities and constitution of partnership/proprietorship, sales tax

registration etc. are in existence, should serve as an independent business entity - investigation had not proved any non-receipt of raw materials and manufacture of components thereon from these two units; no evidence of financial flowback - well settled that mere common partners and proprietor of other concern, and use of staff etc., would not suffice to hold that units are one and the same - no reason for clubbing of the three units. [Para 10]

On identical issue, Revenue initiated proceedings in other Commissionerates, which were dropped by the respective Commissioner (A) on the ground that impugned goods called as modular system furniture or workstations cannot be classified as a collective item as 'other furniture or parts', under CH 9403 of CETA, 1985 - no material that the order of the Tribunal was challenged before the higher Appellate Authority - In the present appeals also, Revenue took the same grounds as in other cases - findings of the Commissioner (Appeals) on both the issues upheld. [Para 14]


M/s Surya Fine Chemicals Vs CCE (Dated: January 8, 2015)

Central Excise – Dutiability / Classification – Appellant firms engaged in manufacture of food color preparations both as manufacturer and job worker - appellant was under bona fide belief that its activities shall not amount to manufacture and not liable to duty and no registration under Central Excise Act, 1944 is warranted even after insertion of Chapter Note 7 in Chapter 21 of the Schedule to the CETA 1985 – Goods sought to be classified by Revenue under Chapter 32, agitated herein.

Held: When the bonafide of appellant is patent from records in view of the confusion persisting in the industry it would not be proper to hold the adjudication made is within the limitation period; Apex Court rulings in Anand Nishikawa case and Uniworth Textiles case applica ble - Where there are specific and explicit averments challenging fides and conducts of assessee brought out in the show-cause notice, the notice is said to have brought such fides to the knowledge of the assessee for defence - In absence of malafide expre ssly stated in the show-cause notice, it cannot be presumed that appellant had acted malafide – Apex Court consistently held that when facts are within the knowledge of both sides there cannot be presumption that there was suppression of fact. [Para 7, 9, 10]

In view of the finding that there was no malafide in the show-cause notice and confusion of classification persisted in the industry having led the appellant to be in confusion, the adjudication can be said to be time-barred; for the same reasons no penalty on this appellant sustainable. [Para 11, 12]


Bilag Industries Pvt Ltd Vs CCE (Dated: January 6, 2015)

Central Excise - CENVAT credit - appellants are engaged in manufacture of Technical Grade Pesticides; used Furnace oil for generating electricity, which was used captively as well as to other units in the same premises - Revenue viewed the credit inadmissible on the Furnace oil used in generation of electricity cleared to other units during the material period; confirmed demand for recovery of CENVAT Credit along with interest and imposed penalties on the firm and individual under Rule 26 of Central Excise Rules 2002 - demands upheld by Commissioner (Appeals) and agitated herein.

Held: On the identical issue, a show cause notice dt.12.08.2005 was issued proposing denial of CENVAT Credit for the earlier period, set aside by the Division Bench of the

Tribunal vide Final Order No.A/877-882/WZB/AHD/ 2012, dt.04.06.2012 on the ground of limitation - present show cause notice dt.10.09.2007 was issued for the subsequent period - when the demand of duty against the earlier show cause notice was set aside as time barred, the demand of duty for the extended period of limitation, on the same facts in the present show cause notice cannot be sustained - findings of the Tribunal in the appellant's own case for the earlier period would be squarely applicable in the present case; part of demand along with interest and penalty barred by limitation set aside - demands for normal period upheld - penalty on individual set aside. [Para 4, 5]


Mathur Corr-Tech Pvt Ltd Vs CCE (Dated: January 8, 2015)

Central Excise - Valuation - Goods were assessed under Sec 4A and cleared but Revenue viewed that Sec 4 is applicable; adjudicated demands; agitated herein - Assessee contends there was no suppression.

Held: Board's circular dated 28.02.2002 has ground that there was persisting confusion in industry which has prevented the appellant assess the goods under Section 4A of Central Excise Act, 1944 - No malafides alleged in SCN; Apex Court ruling in Jaiprakash Industries applicable; appellant's bonafide intentions brought to public record - Appeal allowed. [Para 6, 7]


Dewas Metal Section Ltd Vs CCE (Dated: January 1, 2015)

CE - Assessee manufactured certain automobile parts for M/s. Bajaj Tempo Ltd. in terms of supply agreement with them at a specified price - Assessee purchased their two years requirement of raw-material at one time and since this involved extra carrying cost of raw-material inventory, said cost was recovered from M/s.Bajaj Tempo Ltd as interest on raw-material inventory under debit notes - As per Bombay Tyre International 2002-TIOL-374-SC-CX-LB, the amount charged from customers as carrying cost of extra raw material inventory would be includible in AV - Since the fact of recovery of extra inventory cost from M/s Bajaj Auto under debit notes had not been disclosed in ER -I returns, it has to be inferred that short payment was on account of suppression of fact on the part of assessee - Hence, longer limitation period has been correctly invoked and penalty under section 11AC of CEA, 1944 has been correctly imposed: CESTAT [Para 5, 6, 7]


M/s Dashmesh Castings Pvt Ltd Vs CCE & ST (Dated: February 3, 2015)

CX - Raw material purchased by appellant was defective CTD rounds / bars which acted as a waste material for appellant, to be melted in their furnace - Entire case of Revenue is based upon financial calculation of profit and loss of manufacturing unit - Inasmuch as no retailer can survive if more than 80% of its final product were held to be defective/ rejected / scrap - Appellant have shown receipt and utilization of raw material in their factory and have taken the benefit of Cenvat credit based upon cenva table invoices issued by registered dealer - Appellants need the raw material for the production of their final product and if, as per the Revenue, such material has not been received by them from M/s. ASRM, they were not in a position to manufacture

the f inal product - Revenue has not shown any alternative source of such procurement of raw material - No reason to uphold impugned orders and same are set aside - Appeal allowed: CESTAT


M/s Caress Beauty Care Products Pvt Ltd Vs CCE (Dated: December 24, 2014)

Central Excise - CENVAT credit - appellant, a manufacturer of shampoo and cold cream availed input services credit under Rule 2(l) of CCR 2004 on ‘Gardening and House Keeping Services', viewed as inadmissible by Revenue; demands adjudicated; partly modified by Commissioner (Appeals) and agitated herein.

Held: Under the Pollution Control License Order and Schedule-M of the Drug Control Act, it is mandatory for the appellant to maintain green cover and also use the effluent treated water and keep the factory premises clean - Therefore, as per the statutory requirement, the appellant is required to maintain gardening and green cover and plants and cleanliness of the manufacturing premises - Tribunal ruling in the Murugappa Morgan Thermal Ceramics case applicable; Tyco Sanmar and Xomax Sanmar not applicable to the facts of the present case - appellant is eligible for credit on gardening and house-keeping services. [Para 5]


M/s Facor Alloys Ltd Vs CCE (Dated: November 25, 2014)

Central Excise - Cenvat - Eligibility - Cenvat credit on molasses diverted after clearance for export - Merchant exporter diverted molasses only upon obtaining required permission, paying tax under Challan - Further, issued invoice and Challan to appellant - Denial of credit for want of legally recognized documents - Challan is one of the documents listed - Prima-facie case made out on limitation though not on merits as notice was issued in 2011 for the credit taken in 2007 - Pre -deposit waived. (Para 2)


Cauvery Stones Impex Pvt Ltd Vs CCE (Dated: December 29, 2014)

Central Excise - Refund of unitized credit - appellants exported polished granites and claimed refund under Rule 5 of CCR 2004; portion related to outward transportation up to port disallowed in adjudication on the ground that the service was rendered beyond factory premises; upheld by Commissioner (Appeals) and agitated herein.

Held: Invoice and Shipping Bills clearly show that terms of delivery is on FOB basis and the place of removal is upto the port of loading - Tribunal, in their own case for the subsequent period, allowed their appeal - Since the export documents in the instant case clearly show that terms of delivery on payment is upto port on FOB basis, following the ratio of the Tribunal decision in their own case, the impugned order is set aside. [Para 5]


M/s Chemplast Sanmar Ltd Vs CCE (Dated: October 24, 2014)

Central Excise - Excisability of waste weak HCl acid - appellants are engaged in the

manufacture of PVC Resin and Hydrochloric Acid; during the process of which, Hydrogen Chloride gas emerges, is dissolved in water and cleared as HCl on payment of duty - complex hydrocarbon waste is also generated which is incinerated and cleared as "Waste Weak HCl Acid" viewed as dutiable by Revenue under Heading 2806.10 - demands confirmed and agitated herein.

Held: Supreme Court consistently viewed that merely because the goods are sold in the market, it would not make them marketable - Apex Court rulings in the TISCO case and Gujarat Narmada Valley Fertilizers case; Gujarat HC ruling in the Dhakad Metals case applicable - Larger bench ruling in the Keti Chemicals case relied upon by Revenue distinguished - no material available to show that waste weak HCL acid is marketable and therefore it cannot be treated as an excisable commodity - the impugned orders are set aside. (para 5)


Dalmia Cements (Bharat) Ltd Vs CCE (Dated: September 16, 2014)

Central Excise – CENVAT credit - appellants engaged in the manufacture of cement and clinkers, availed cenvat credit on cement, steel etc. used for constructing "Silos" to be used for storage of cement and various raw material during the period from September 2004 to March 2005 – Revenue held the same inadmissible, adjudicated demands with interest and penalty, agitated herein.

Held: Decision of the Bombay High Court in the case of Bharti Airtel relied upon by Revenue found inapplicable to the facts and circumstances of the instant case - decision of Karnataka High Court in the case of SLR Steels Ltd is directly on the present issue in favour of the assessee - impugned order set aside. [Para 5, 6]


M/s Jubiliant Engineering Ltd Vs CCE (Dated: January 12, 2015)

Central Excise - Rebate / Refund - appellant, a 100% EOU engaged in the manufacture of valve assemblies, exported goods on payment of duty from CENVAT credit and then filed rebate claim - before the claim could be adjudicated, they sought cancellation and availed suo moto credit of cenvat credit and no duty was payable on exports - Revenue viewed the same irregular; adjudicated recovery with interest and penalty, upheld by Commissioner (Appeals); and agitated herein.

Held: Division Bench in their own case already decided the issue in favour of the appellants vide final order 1280 - 1284/2008 dated 16.07.2008 - By following the same, once the appellants rebate claim is cancelled they are entitled to take re -credit in their cenvat account. [Para 5]


M/s Goodrich Aerospace Services Pvt Ltd Vs CCE (Dated: November 21, 2014)

Central Excise - Credit distribution - Credit cannot be denied because both EOU and STPI are located within the same premises necessitating to take input distributor registration and distribute credit - Impugned order to that extent set aside - As regards nexus between the units in question, matter is remanded to original authority to decide in view of interim order and binding precedents on the issue. (Para 2)


M/s AI Champdany Industries Ltd Vs CCE (Dated: January 5, 2015)

CX - Pre-deposit - s.35F of CEA , 1944/s. 129E of CA, 1962 - It is a cardinal principle of statutory interpretation that while incorporating a statute or a provision into the existing statute, the Legislatures are fully aware of the position of law as was prevailing on the date of new legislation or bringing the change into the exis ting legislation - law i.e. amended Sec.35F of CEA /1944 is very clear and unambiguous and the intention of the legislature is also loudly made clear about its applicability - Needless to emphasize, the Tribunal is a creature of the statute and accordingly bound by the statute - Pre -deposit mandatory even in respect of orders passed prior to 06.08.2014 and appeals filed thereafter: CESTAT [ para 6]



M/s Insecticides (India) Ltd Vs CCE (Dated: December 11, 2014)

CE - Valuation - s.4 of CEA , 1944-Denial of the deduction of trade discount and turnover discount which had been passed on to the customers through credit notes-discounts were known prior to the clearance of the goods is not in dispute-Commissioner has allowed the deduction of these discounts wherever these discounts had been passed on to the customers in the invoices, however, same have been disallowed only in those cases where the discounts were not mentioned on in the invoices, but were passed on by the way of credit notes - Commissioner has also given a finding that the genuineness of the credit notes through which they have given the sales discounts has been established-Only ground on which the deductions of these discounts has been disallowed is that the appellant had not intimated to the Department about the discount which they intended to passed on through credit notes, after the sales through depot and they have not resorted provisional assessment-Grounds on which the deduction of the discounts passed on through credit notes has been disallowed are totally wrong - Demand is not sustainable, hence set aside: CESTAT [ para 6]

CE-Short payment of duty of Rs . 1,891/-and wrong availment of Cenvat credit of Rs . 4,41,633/--these demand amounts are not dispute d and appellant has paid the same before issuance of demand notice - there is no finding in the order that the wrong availment of credit or short payment was deliberate or on account of fraud, willful misstatement etc. on the part of the appellant - in such a circumstance imposition of mandatory penalty u/s 11AC of CEA , 1944 is not sustainable, however demand sustained: CESTAT


M/s Redicura Pharmaceuticals Pvt Ltd Vs CCE (Dated: February 4, 2015)

CE - SSI exemption - Notification 9/2003-CE - Goods got manufactured by the appellant as a Loan Licensee through other manufacturers & goods manufactured by appellant for Loan Licensees as a job worker is not to be included while computing the aggregate value of clearances for determining exemption limit - Appeal allowed: CESTAT [ para 4, 5]



M/s Pawan Alloys And Casting Pvt Ltd Vs CCE & ST (Dated: January 2, 2015)

Central Excise - Clandestine clearances - officers visited the appellant's premises, detected shortage of MS Ingots on comparing physical stocks vis -à-vis record - demands confirmed with interest and peanlty, upheld by Commissioner (Appeals) and agitated herein.

Held: Average basis counting of the MS Ingots was done to arrive at the shortage; apart from that, no other corroborative evidence has been ascertained in this matter to allege the clandestine removal of the goods - Although the authorized representative of the appellant has admitted the shortage, he has not admitted that any goods have been removed from the factory without payment of duty - Tribunal ruling in the case of J C Rolling Mills and High Court ruling in the case of Bajrang Petro Chemicals distinguished on facts - Ruling pronounced in the case of Durga Steel Rolling Mills applicable to instant case; appellant is not liable to pay duty on the shortage of finished goods - in respect of discount offered by supplier of defective inputs, no reversal of credit required as clarified in Board Circular dated 17.11.2008. [Para 7, 9]


M/s Madura Steel Industries Pvt Ltd Vs CCE (Dated: January 12, 2015)

Central Excise - CENVAT credit - Obligation under Rule 6 of the Cenvat Credit Rules, 2004 - appellants manufactured 'Steel Castings' and supplied to M/s. Heavy Vehicles Factory, for use in the manufacture of 'Battle tanks'; claimed exemption under sl. No. 88 of Notification No. 4/2006-CE dated 01.03.2006 - Revenue viewed appellant liable to reverse 10% 'amount' of value of exempted goods under Rule 6; adjudicated demands; upheld by Commissioner (Appeals); and agitated herein.

Held : As per the amended Rule 6 of CCR w.e.f. 01.04.2008, the appellants are required to pay proportionate credit as per sub-rule 3(A) of Rule 6 of CCR, 2004 - appellants have reversed proportionate credit on the inputs used in the manufacture of castings supplied to M/s. HVF and the same was appropriated in the Order-in-Original - Though the adjudicating authority in his order stated that it is covered under the provisions of sub-rule 3(A) of Rule 6 of CCR, he confirmed the demand of 10% on the value of goods cleared instead of following the formula prescribed - the adjudicating authority has not followed the provisions of sub-rule 3(A) of Rule (6), therefore, the impugned order is set aside and the appeal is remanded back to the adjudicating authority to re-determine the reversal of credit amount as per the provisions of sub-rule 3 (A) of Rule (6) of CCR and take into account the amount already reversed by the appellants - However, the penalty imposed on the appellants is set aside. [Para 5, 6]


Navpad Textile Industries Ltd Vs CCE, C & ST (Dated: December 22, 2014)

CE - Assessee, a 100% EOU cleared Polyester Gray Knitted Fabrics (PGKF) to another three EOUs - But, invoices indicates "Polyester Gray Fabrics" - It is submitted that other EOUs received Polyester Knitted Fabrics and issued certificate in favour of assessee - Assessee contends that adjudication order was passed without supplying relied upon documents and without giving proper opportunity of hearing - By letter dtd 24.3.2014 assessee was directed to collect the relied upon documents and to appear in hearing on 31.3.2014 - Justice demands that "the parties should have an opportunity of submitting to the person by whose decision they are to be bound such considerations as in their judgement ought to be brought before him - So, it is difficult

to file the reply after taking copies within period, as specified in Notice dtd 24.3.2014 - Impugned order set aside and matter remanded to Adjudicating authority: CESTAT [Para 5, 6]


M/s Winsome Yarns Ltd Vs CCE & ST (Dated: January 21, 2015)

Central Excise - CENVAT credit - Appellant, manufacturers of Yarn, availed capital goods credit during the material period when clearances were effected under exemption Notification No. 29/2004-CE dated 09.07.2004 as well Notification No.30/2004-CE dt.09.07.2004 - Yarn meant for export was cleared @4% duty under claim of re bate - Department viewed that since in respect of clearances of export under rebate claim, where the goods had been cleared under Notification No. 29/04-CE on payment of 4% duty, the appellant were eligible for full duty exemption, as they satisfied the condition for Notification No. 30/04-CE but they still chose to pay duty under Notification No. 29/2004-CE, the amount paid towards duty cannot be treated on duty but only a deposit and the goods have to be treated as the exempted goods cleared under Notification No. 30/04-CE and since the capital goods in question have been used exclusively for manufacture of exempted goods, credit would be inadmissible under Rule 6(4) of Cenvat Credit Rule, 2004 - demand for recovery of irregularly availed credit confirmed with interest and penalty, agitated herein.

Held : Undisputed that during the material period, the clearances for domestic consumption had been made at nil rate of duty by availing the Notification No. 30/2004-CE and clearances for export had been made on payment of 4% duty under Notification No. 29/2004-CE - No input duty credit had been availed and only capital goods Cenvat Credit had been availed in respect of which there is no prohibition in Notification No. 30/04-CE - point of dispute is as to when the appellant have not availed input duty credit, whether they have option to avail the Notification No. 29/2004-CE where the rate of duty is 4% - Department's contention totally incorrect, as Exemption Notification No. 29/2004-CE is an unconditional exemption which prescribes a rate of duty of 4% adv - There is no condition that input duty Cenvat Credit must be availed; condition of non-availment of input duty Cenvat Credit is for nil duty under Notification No, 30/2004-CE and this does not mean that an assessee not availing input duty credit can not avail the exemption under Notification No. 29/2004-CE - 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 - 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 availment of a particular exemption Notification - during the period of dispute the appellant was clearing the goods by availing full duty exemption as well as on payment of duty, hence the capital goods cannot be treated as having been used exclusively in the manufacture of exempted goods and Cenvat Credit in respect of the same cannot be denied; impugned order deserves no merits, same set aside. [Para 6, 7]


M/s Larsen And Toubro Ltd Vs CCE & ST (Dated: December 9, 2014)

Central Excise - Stay / dispensation of pre deposit - CENVAT credit - Tata Steels entered into four separate contracts with L&T, for supplying drawings, plant & machinery, erection, testing, commissioning, civil and structural steel work - Tata Steels availed capital goods credit on material supplied to L&T, who in turn has discharged service tax against 'works contract services' considering the said job as a composite contract - Revenue viewed credit inadmissible at Tata Steels since they availed cenvat credit on the capital goods which were inputs for L & T Ltd., therefore, the same cannot be treated as capital goods in the hands of Tata Steel - demands

adjudicated with interest and penalties on firms and individuals; and agitated herein.

Held: Prima-facie, Tata Steel Ltd has availed cenvat credit on the capital goods sold/ supplied by L & T, which were later installed and used in or in relation to the manufacture of finished goods in their premises, a fact not in dispute - not clear as to how and under what provision, the cenvat credit on the capital goods could be held inadmissible, as undisputedly, the said capital goods are installed in their factory and continued to be in their possession and used in the manufacture of finished goods - not understandable as how payment of service tax by L&T, treating the project as works contract, would deprive Tata Steel Ltd to avail credit on the duty paid capital goods sold/supplied - Applicants made out a prima-facie case for total waiver of predeposit of dues adjudged; predeposit of dues adjudged against all the Applicants are waived. [Para 5]


Ambi Ply Panels And Doors Vs CCE (Dated: November 28, 2014)

Central Excise - Stay / dispensation of pre deposit - SSI exemption - First Appellant engaged in the manufacture of Plywood and Block Boards, and claimed the benefit of SSI exemption under Notification No. 8/2003-CE - Department viewed that two firms [M/s. The Veera Silver Frames and M/s. Ambigai Lumber Board Works] do not have the infrastructure in their factory to manufacture plywoods and block boards, that they have no manufacturing premises, power connection or a generator; and that the other two units are dummy units - Clearances clubbed and SSI exemption denied in adjudication - demands confirmed on the firms with interest and penalties imposed on firms and individuals, who are partners of three units; agitated herein.

Held: Adjudicating authority had given detailed finding on the clubbing of clearance of other two units with the main applicant; quantification of the demand and eligibility of cenvat credit will be examined at the time of hearing the appeals at length - applicants have failed to make out a prima facie case for waiver of entire amount of dues; first applleant firm directed to predeposit an amount of Rs.85,00,000/- (Rupees eighty five lakhs only) within a period of eight weeks. [Para 5]


CCE Vs Shree Datta Ssk Ltd (Dated: November 13, 2014)

CENVAT - Respondents availed credit on inputs and input services pertaining to manufacture of both dutiable and exempted goods without keeping separate accounts - Bagasse, a byproduct, on which no duty is payable, used in generation of electricity as fuel - electricity generated is used captively for manufacturing process and sold to (MSEDCL) - electricity is not an excisable goods under section 2(d) of Act, hence Rule 6 of CCR is not applicable as held by Supreme Court in case of Solaris Chemtech Ltd - respondents not required to reverse an amount of 10% of value of electricity sold to MSEDCL - No infirmity in impugned order, so upheld - Revenue appeals are dismissed: CESTAT [Para 2, 7]


The Paper Products Ltd Vs CCE (Dated: March 4, 2015)

CE - A SCN should be issued for recovery of interest separately within a reasonable period if there is no demand for duty - If there is a notice for demand of duty, then no separate notice is required for recovery of interest - Revenue neutrality is not

embedded in CEA or CER: CESTAT by Majority



Ishu Super Steel Pvt Ltd Vs CCE (Dated: February 20, 2015)

CX - Inputs burnt in fire - CENVAT - Even though the appellant have lodged with the Insurance company a claim that 700 MT of Sponge Iron caught fire, the certificate by the Insurance Surveyor pegs the same at 547.982 MT - CENVAT credit reversed to the extent of quantity certified by surveyor is proper - no reason for brushing aside the report since it is not the case of the Revenue that the remaining quantity has been disposed of otherwise - no physical verification was also undertaken by department to justify its allegation - remaining quantity was very much available in the factory of the appellant as per insurance surveyor report - Appeal allowed: CESTAT [para 5, 5.1]



Videocon Industries Ltd Vs CCE & ST (Dated: January 13, 2015)

CX - Assessee in their factory at Shajahanpur, Distt. Alwar manufacture refrigerators of brandname Electrolux and Kelvinator - They received services from M/s. Takecare (India) Pvt. Ltd. for repair and maintenance of refrigerators during warranty period - Similarly, IPR service provided by M/s.P.E. Electronics Pvt. Ltd. has been used for use of brandname 'Electrolux' and service of advertisement has been used for promotion of brandname 'Kelvinator' - Agreement of appellant with Takecare India Pvt. Ltd. and M/s P.E. Electronics shows that these agreements are only in respect of unit at Shajahanpur, Distt. Alwar - Invoices by respective service providers have also been issued to assessee's company unit at Shajahanpur, Distt. Alwar - No merit in Revenue's contention that the services in question may have been used in respect of products manufactured by other factories of appellant company - Stay granted: CESTAT [Para 6]


CCE Vs M/s Glaxo Smithkline Beecham Consumer Healthcare Ltd (Dated: December 12, 2014)

CX - Assessee engaged in packing of Horlicks and Boost and their sales were through sales depot located all over the country - Period of dispute is from April 1994 to July 1997 - Duty demand for period of dispute is covered by 8 separate show cause notices by which duty amounted to Rs.1,55,11,932/- - Assistant Commissioner confirmed the demand of only Rs.11,58,767/- and operative portion of order is totally silent about any refund - Assistant Commissioner's order mentions that refund claim had been rejected by Deputy Commissioner and also rejected by Commissioner (A) and against this order - No further appeal had been filed - For this reason only, Assistant Commissioner has demanded duty of only Rs.11,58,767/- and has not ordered adjustment of amount of demand against any amount becoming refundable, as refund claim had already been rejected - Impugned O-I-A dated 10/11/05 permitting the adjustment of duty demand of Rs.11,58,767/- against excess payment of duty of Rs.86,54,690/- is totally wrong and as such there was no authority for the same - Order set aside and appeal allowed: CESTAT [Para 8]


Transformers & Electricals Kerala Ltd Vs CCE, C & ST (Dated: July 25, 2014)

Excise – Interest on differential duty – Manufacture of transformers and allied products on contract basis – Goods were initially cleared by paying appropriate duty and price escalated thereafter – Supplementary invoices raised to claim revision of prices and differential duty was paid on differential value of goods received – Following precedent in BHEL case, demand of interest on differential duty set aside – Appeal allowed with consequential reliefs.


CCE Vs Tulsyan Nec Ltd (Dated: January 19, 2015)

Central Excise - CENVAT credit - Rule 6 of CCR 2004 - respondents manufactured CTD bars and cleared the same on payment of duty; they also undertook conversion of ingots into CTD bars on job work basis and cleared the same under Rule 57F (4) challan - They have availed input credit on furnace oil and oxygen as fuel - Revenue viewed that input credit availed on fuel used in the manufacture and clearance of exempted under Rule 6(2) of CCR was reversible; adjudicated demand for recovery of 8% value with interest and penalty; demands set aside by Commissioner (Appeals) and agitated by Revenue herein.

Held: During the material period, Rule 6(2) of CCR 2004 stipulates that respondents should maintain separate inventory of inputs exempted and dutiable except intended to be used as fuel - Instant dispute is only on the credit availed on fuel used in the exempted product; issue has already been settled by various High Courts and the Tribunal, allowing credit on fuel - the lower appellate authority has discussed the issue in detail and rightly held that credit availed on furnace oil and oxygen which are fuel is permissible - no infirmity in the impugned order which is upheld [Para 6, 7]


M/s Wipro Ltd Vs CCE (Dated: January 20, 2015)

Central Excise – Stay / dispensation of pre deposit – CENVAT credit – Duty paid on stock of inputs and finished goods at the time of debonding of 100% EOU subsequently availed as credit, viewed inadmissible by Revenue – demand for recovery adjudicated and agitated herein on merits as well as limitation.

Held: The appellants while debonding have paid the duty both on the inputs as well as on the finished goods lying in stock and availed the credit - Prima facie case made out for waiver of predeposit of entire dues; same granted. [Para 4]


M/s Shri Dnyaneshwar Ssk Ltd Vs CCE (Dated: October 17, 2014)

CENVAT - Rule 2(l) of CCR, 2004 - Appellant is a manufacturer of sugar and power plant is being used for manufacturing of sugar only – ST paid on maintenance and repair of power plant qualifies as Input Service - pre -deposit of entire amount of duty, interest and penalty is waived and stay granted: CESTAT [Para 2]


M/s Malbros Industries Vs CCE (Dated: January 20, 2015)

CX - Assessee having a shop from where in addition to the plastic goods manufactured by them, also sold goods procured from other sources - Most of the goods are not even the Inj. Moulded plastic articles manufactured by assessee but duty had been demanded in respect of those goods on the basis that assessee have sold them by printing brand name/logo of customers - Though the assessee had given the break up of goods purchased from outside and sold from their shop, but this plea had not been considered at all - Even the assessee's plea that they have no facility for printing of customer's name/logo on articles and that wherever printing was done on the customer's request, it was got done from outside has also not been considered - Stay granted: CESTAT [Para 6]


M/s Singla Cables Vs CCE (Dated: January 14, 2015)

CX - Assessee availing of duty exemption under Notfn. 56/2002-CE - During the period from February 2006 to March 2006, assessee had confined to Cenvat credit availment only to Additional Customs Duty and had not taken Cenvat credit available in respect of Special Additional Customs Duty (SAD) - To the extent, lesser Cenvat credit was availed, lesser payment of duty through Cenvat credit and higher payment of duty through PLA resulting in higher refund under said Notfn - In December 2006 as soon as this was pointed out, they took credit of this amount which results in lesser refund claim in month of December 2006 - Non-availment of credit was in month of December, 2006 itself and no SCN has been issued by invoking extended period of limitation - SCN is barred by limitation as well as appellant succeeds on merit as it is a revenue neutral situation - Impugned order is set aside and appeal allowed: CESTAT


Meneta Automotive Components Pvt Ltd Vs CCE & ST (Dated: December 30, 2014)

CE - Scrap generated in appellant's unit and cleared into DTA - Only use of scrap is for re-melting - Impugned order denying basic customs duty exemption under Notfn 21/2002-Cus (Sl.No.332) for the purpose of calculation of duty payable in respect of DTA clearances of scrap in terms to proviso to Section 3(1) of CEA, 1944 is not correct - Waste general norms have been finalised by Development Commissioner, hence, denial of benefit of exemption Notfn 23/03-CE is also incorre ct - Stay granted: CESTAT [Para 6, 7, 8]


Indian Oil Corporation Ltd Vs CCE (Dated: October 8, 2014)

CE - s.4 of CEA, 1944 - Goods sold from ONGC, Nhava Depot - "other charges" collected at the rate of Rs.172.54 per KL from customers were meant to recover the additional cost that the appellant was incurring in transporting the goods from warehouse to depot, storing the goods in the depot and for the investment made in the storage tanks and pipelines upto the jetties - such charges are includible in Transaction value as ONGC, Nhava Depot is the place of removal - Appeal dismissed: CESTAT by Majority.



NOCIL Ltd Vs CCE (Dated: January 7, 2015)

CE - Cenvat credit on welding electrodes - Though initially, appellant claimed credit under input, but during adjudication, they made alternate claim before adjudicating authority under capital goods - As welding electrodes are used for repair and maintenance of plant and machinery, appellant is entitled for cenvat credit - Appeal allowed: CESTAT [Para 5, 6, 7]


CCE Vs M/s Tractors And Farm Equipments Ltd (Dated: January 13, 2015)

Central Excise - CENVAT credit - input credit availed on plastic crates denied in adjudication; allowed by Commissioner (Appeals); and agitated by Revenue herein.

Held: Short issue is eligibility of CENVAT credit on the plastic crates, settled by the Larger Bench in the case of Banco Products - Basically Revenue filed these appeals relying on the decisions of the Tribunal in the cases of PKPN Spinning Mills, which was set aside by the Chennai HC vide judgment dated 14.2.2013 in CMA No. 4162/2005 - respondents are eligible for the CENVAT credit availed on plastic crates as inputs / material handling equipment; no infirmity in the order passed by the lower appellate authority; same is upheld [Para 6, 8]


M/s Hindustan Gum And Chemicals Ltd Vs CCE (Dated: January 16, 2015)

CE - Whether the appellant is required to pay MOT charges (Merchant Overtime Tax) for the services rendered by Departmental Officers (as Customs Officers) during office hours for any Customs examination/work is being done in their factory/ware house - As per Sigma Corporation Ltd, no fee is payable on the stuffing work done in factory of the assessee under the supervision of jurisdictional Central Excise Officers during working hours only - Impugned order set aside and appeal is allowed: CESTAT


M/s Delphi Automotive Systems Pvt Ltd Vs CCE, ST ( Dated: January 06, 2015)

CX - Exemption Notfn 6/2000-CE - Appellant are manufacturers of parts/components of car air conditioners - Department alleges that the appellant are supplying complete air conditioning machines in SKD/CKD condition and, therefore, exemption is not available - In respect of supplies to M/s Daewoo Motors, appellant have manufactured only compressors, blowers and condensers and the Heater Evaporators had been imported and supplied from trading premises located at a different place and no cenvat credit in respect of Heater Evaporators had been taken - Appellant, therefore, cannot be considered to have supplied Heater Evaporator along with compressors, blowers and condensers - It is the parts manufactured and supplied by a manufacturer which have to be taken into account and not the parts which were not manufactured and supplied as trading activity for the purpose of said Notification as amended and its successor notifications - Appellant have placed on record invoices under which the traded items were supplied and these invoices were issued as registered dealer and trading premises were at a place different from the location of factor - Stay granted: CESTAT [Para 6, 7]


M/s International Tobacco Co Ltd Vs CCE & ST (Dated: January 21, 2014)

CX - Assessee paid duty on Cigarette during the period from 17.03.2012 to 27.05.2012 at the rate announced in budget on 16.03.2012 in terms of clause 141 of Finance Bill 2012 while Department views that duty would be chargeable at the rate as per amendment moved on as 08.05.2012 - As per Board's Circular No. 981/5/2014-Cx , since the amendment to the Finance Bill, 2012 moved on 08.05.2012 was not accompanied by declaration under section 3 of PCT Act, the enhanced rate announced in terms of amendment to the Finance Bill would be applicable only from 28.05.2012 - Order set aside and appeal allowed: CESTAT [Para 3, 5]


M/s Sampre Nutrition Ltd Vs CCE, C & ST (Dated: December 4, 2014)

Excise - Cadbury chocolates - Valuation - Duty payable whether on the basis of cost construction or price at which manufacturer sells chocolates on their own account - Debatable issue - For earlier periods, matter was remanded by waiving pre-deposit on considering the issue in question - Precedent followed - Matter remanded to decide without insisting pre-deposit.


CCE Vs Moulds & Dies Pvt Ltd (Dated: January 22, 2015)

CE - ROM application by Revenue - First order of Tribunal clearly covers both the SCNs covered by single adjudication order - although earlier order was brought to the notice of the Tribunal, Second order of Tribunal again covers both SCNs and gives an impression that Tribunal thought that the two cases though are similar but are different inasmuch as order is for different period - Well settled legal position is that if a matter is decided by any adjudicating authority or any appellate authority, the said authority cannot decide it again - Second judgment or order has to be ignored or is non est in eyes of law: CESTAT


CCE Vs M/s Wipro Gemedicals Systems Pvt Ltd (Dated: November 14, 2014)

Central Excise - Goods cleared at nil rate - Demand of reversal of 8% amount collected from customers under Section 11-D - Not applicable - Submission by Revenue that that the customers might have taken credit of duty paid, not accepted - Appeal by Revenue devoid of merits - Cross Objection filed by the assessee disposed of. (Para 4)


M/s Nectar Beverages Pvt Ltd Vs CCE, C & ST (Dated: November 14, 2014)

Central Excise - Cenvat Credit - Admissibility - Manufacturer of aerated water -Annual maintenance of refrigerators and cooling equipment stored in the premises of dealers/retailers prima-facie is not an input service but basically is a post removal activity - Credit of service tax paid on such charges, not admissible - No reason to deviate from final order passed earlier in respect of same appellant - Appellant is directed to deposit the entire amount of CENVAT credit with interest - Pre -deposit of balance dues waived. (Para 3)


M/s Indian Oil Corporation Ltd Vs CCE (Dated: December 15, 2014)

Central Excise – Demand under Sec 11D made on depot, who is not a manufacturer not sustainable in terms of the Tribunal ruling in the IOCL case.


M/s Hindustan Unilever Ltd Vs CCE (Dated: November 14, 2014)

Central Excise – Valuation – appellants are engaged in the manufacture of shampoo and claimed abatement towards equalized sales tax provisionally on the basis of the particulars available for the previous quarter - During the finalization of the assessment, the appellants produced the Chartered Accountant's Certificate for the average sales tax on products price, however, it was held that equalized or average sales tax cannot be allowed for abatement under Section 4 of the said Act – denial of abatement challenged herein.

Held: issue is no longer res integra, in view of various decisions of the Tribunal in the appellant's own case - In the Britannia Industries case relied upon by Revenue, the High Court in respect of deduction of freight charges in price observed that the Chartered Accountant's Certificate and P&L account is not conclusive proof of such payments - None of the final orders of the Tribunal was challenged by the Department before the appellate forum - no reason to take a different view from the earlier final orders - impugned orders are set aside. [Para 3, 4]


M/s ITW India Ltd Vs CCE (Dated: January 8, 2015)

CE - s.4 - Valuation - Appellant was manufacturing parts on behalf of M/s. Whirlpool India Ltd. - Supply of moulds free of cost by M/s. Whirlpool India Ltd is additional consideration and amortization cost of moulds is to be added for arriving at AV of finished product - Appellant have subscribed in invoice to fake declaration that price is sole consideration for sale and no other consideration in any form is flowing back to them - Extended period is correctly invoked and demand is correctly confirmed - Interest also chargeable u/s 11AB of CEA, 1944 - Penalty already set aside by Commr(A) - Appeal dismissed: CESTAT [Para 6]


Universal Power Transformers Pvt Ltd Vs CCE, ST & C (Dated: November 25, 2014)

Central Excise - Cenvat Credit - Clearances made to developers of SEZ without payment of duty - Recovery of duty on such clearances - Applicability of Proviso to Rule 6 (6) of CENVAT Credit Rules 2004 - Following precedents as well as Revenue conceded in favor of appellant, impugned order set aside. (Para 2)


M/s Sri Krishna Alloys Vs CCE (Dated: December 22, 2014)

Central Excise – Undervaluation – Common individuals being Partners in appellant unit and Directors in buyer firm – Revenue viewed that the partner of the appellant being

directors in the buyer firm, mutuality of interest cannot be ruled out; that when the supply of goods was made by own truck of the appellant to the buyer, there was undervaluation of the goods to the extent of the freight; and that the CAS4 report proved the undervaluation against the appellant – demands confirmed and agitated herein.

Held: To prove mutuality of interest, the essential ingredient of influence over price of the appellant is absent - SCN does not speak about the mode of transport resulting in undervaluation; mere allegation that there was mutuality of interest remained unproved - CAS4 does not exhibit as to the manner how the appellant undervalued the goods to lead its defence - In absence of appropriate allegation in the show-cause notice, leading of evidence to rebut CAS4 is inconceivable - The appellant has brought out categorically that the representative transaction value was verifiable from the supply price of different suppliers; there was no inquiry on that count also; there was also no further inquiry done as to the reason why the entire supply of the goods manufactured by appellant was sold to the sole buyer aforesaid - When there is no contradiction by evidence that the transaction value of the competitors was not representative or ascertainable equivalent price, it is difficult to agree with Revenue on the allegation of undervaluation - Invoking of Rule 10 of the Valuation Rules on the allegation of interconnected undertaking would have been appreciated had there been material brought on record to show that such an interconnection caused undervaluation. [Para 5, 6, 7]


M/s Steel Authority Of India Ltd Vs CCE (Dated: December 22, 2014)

Central Excise – CENVAT credit – Duty paid on Value including 'Fixed Facility Charges' (FFC) and 'Minimum Take or Pay charges' (MTOP) upstream; credit denied downstream by Revenue on the ground that the supplier ought not to have charged duty on these elements – Denial of credit, demands thereto disputed herein.

Held: All the three appeals are remanded to the Adjudicating authority for re-adjudication in the light of the Board clarification dated 10.11.2014. [Para 7]


Akansha Sales Promoters Vs CCE & ST (Dated: September 1, 2014)

Central Excise – Stay / Dispensation of pre deposit – Classification of "canopies", Valuation and clubbing of clearances under dispute herein - the canopies 'manufactured' by the appellants have no walls or windows and therefore would not fall under Chapter heading 94.06 – duty demand on the basis of that classification unsustainable – pre deposit waived.


M/s Pushkar Steels Pvt Ltd Vs CCE (Dated: January 14, 2015)

CE - Notfn 50/03-CE - Assessee's unit was in existence much before the issuance of exemption Notfn 50/03-CE and when compounded levy scheme for induction furnace unit had been notified under Section 3A of CEA, 1944 - Production capacity of assessee increased from earlier 3 M.T. during the period prior to 07/1/03 to 4 M.T. during the period after 7/1/03 - Commercial Tax Department has accepted the

assessee's claim regarding purchase of components of furnace from outside the state and has decided to impose penalty only on the ground that procedure prescribed in this regard was not followed - Ground on which the Commissioner has rejected assessee's claim regarding purchase of induction furnace components is not correct - As per Uttaranchal Iron & Ispat Ltd . 2008-TIOL-1533-CESTAT-DEL , once it is accepted that the increase in capacity of crucible was achieved by increasing its height, the benefit of exemption under said Notfn cannot be denied - Order set aside and appeal allowed: CESTAT [Para 6, 7]


CCE, ST & C Vs M/s Universal Biofuels Pvt Ltd (Dated: December 2, 2014)

Central Excise - Clearances made by 100% EOU to Domestic Tariff Area - Computation of Education cess decided in favor of assessee - Stay sought by Revenue against - Grant of stay would result in reviving demand not permissible - Stay application hence rejected as infructuous.


M/s Thio Chemi Pvt Ltd Vs CCE (Dated: November 19, 2014)

Central Excise - Stay / dispensation of pre deposit - Classification - Appellant classified ‘Khatnil', a kerosene based cleaning material, under sub-heading No. 3808 9990 - Revenue viewed the same classifibale under sub-heading No. 38078 9191 of the First Schedule to the Central Excise Tariff Act, 1985 - demands adjudicated based on promotion materials and agitated herein.

Held: Applicant advertised impugned product as "for Borer & Termite" and given directions for use of this product as "For effective control of Borer & Termite"; demand of duty was raised on the basis of their declaration in the trade parlance - However, there is force in the submission that the classification is frequently changed and therefore extended period of limitation cannot be applied - Appellant's claim on financial hardship found inconsistent with the statement of profit and loss account for the year ending March, 2013 - applicant failed to make out a prima facie case for waiver of pre -deposit of entire dues; and is directed to make a pre-deposit of Rs. 30,00,000/- (Rupees Thirty lakhs only) within a period of eight weeks. [Para 3, 4]


M/s Sun Food Tech Vs CCE (Dated: December 26, 2014)

CE - SSI exemption Notfn 9/2002-CE - Appellant had sent the declaration under certificate of posting through postal authorities - Since the department does not dispute the appellant's claim regarding sending of declaration from Mayapuri Post Office under certificate of posting and also it is not disputed that otherwise, appellant are eligible for exemption - Benefit of exemption cannot be denied just because the declaration was not received in the office of Dy. Commissioner or in Range Superintendent more so, when a copy of the declaration dated 28.08.2002 has been produced before the Asstt. Commissioner - Order set aside and appeal allowed: CESTAT [Para 7]


M/s Triveni Glass Ltd Vs CCE & ST (Dated: August 19, 2014)

Central Excise - Stay / dispensation of pre deposit - Offence case - appellant is engaged in the manufacture of sheet glass of various sizes and shapes - officers visited the Unit, detected goods loaded for dispatch without entry in stock register / CE invoice; initiated investigation, scrutiny of records, recording of statements and concluded clandestine manufacture clearances - demands adjudicated with interest and penalties on firm and individuals, agitated herein.

Held: entire case of the Revenue is based upon the theoretical calculation of the alleged excess production, adopting maximum installed capacity - final product being very fragile and sensitive, results in lot of wastage, for which the appellants have also maintained proper records - wastage arises at various stages ignoring the set of final cutting of the glass into proper shape and sizes resulting in emergence of cullets i.e. the resultant waste, which are never cleared by the appellant and are reused in the furnace for the manufacture of their final product, for which proper records are again maintained - virtually no evidence of procurement of excess raw material, conversion of the same into final product, clearance of the same through transporters and identification of the buyers and the consequent flow of money from the buyers established by Revenue - allegations of clandestine removal cannot be upheld on the basis of surmises and conjunctures and are required to be established by production of positive and tangible evidence - prima facie , no preponderance of probabilities to conclude the allegations of clandestine removal against the appellant - further, financial hardship observed since the Unit is referred to BIFR - pre deposit dispensed with. [Para 5, 6, 7, 8]


CCE Vs M/s Rawf Re-Rollers (Dated: September 25, 2014)

Central Excise – Clandestine clearances - respondent engaged in the manufa cture of M.S. Rounds; Officers of DGAE visited the premises, investigated, detected illicit removals under traders invoices during the material period – demands adjudicated with interest and penalties on firm and individuals under Rules 173Q and 209A of erstwhile CER 1944; Commissioner (Appeals) set aside demands on the ground of lack of corroborative evidence; and agitated by Revenue herein.

Held: Nothing brought on record to correlate the allegation of illicit removal of M.S. Rounds from the appellant's factory to establish evasion of duty - findings of the Adjudicating Authority are cryptic and no cogent evidences brought to establish the clandestine removal; demands solely based on the statements - To establish clandestine clearance and evasion of excise duty, it is obligatory on the part of the Revenue to establish in clear terms with corroborated evidence, statutory records, financial transaction of the appellants or from the buyer etc. [Para 5, 6]

Patna HC ruling in the Brims Products case is squarely applicable to the facts of the present case; same followed - there is no infirmity in the impugned order, which is upheld. [Para 8]


Ultratech Cement Ltd Vs CCE, ST & C (Dated: November 20, 2014)

Central Excise - Cenvat Credit - Entitlement - Construction of capital goods -Credit availed on steel and cement used in construction of Packing Plant and Storage Sylos (tank) - Prima facie admissible - Argument by Revenue that Sylos storage is totally different from a storage tank, not appreciated - Pre-deposit of balance dues waived. (Para 2)


M N Furniture Vs CCE (Dated: February 12, 2015)

CE - Carpentry work awarded to appellants by UTI was sub-contracted to independent contractors – whether sub-contractor is the manufacturer – M(J) & M(T) have divergent views on merits, however, agree that demand is hit by limitation – Appeals allowed: CESTAT



M/s S P Fabricators Pvt Ltd Vs CC (Dated: August 6, 2014)

Central Excise - CENVAT credit - appellants are manufacturers of Aluminium Composite Panels with Glass, cleared to DTA on payment of duty and to SEZ developers without duty, under ARE1 - Revenue viewed that the appellants have not maintained separate accounts in terms of Rule 6(2) of Cenvat Credit Rules, and used common inputs in the manufacture of dutiable and exempted finished goods cleared to non-SEZ buyers (i.e. SEZ developers) - Demand for 10% ‘amount' of value of goods cleared to SEZ developers adjudicated with interest and agitated herein.

Held: Appellants while clearing the goods followed the procedure stipulated under Rule (30) of SEZ and Rule (19) of CER; impugned clearances are treated as export duly accompanied by ARE-I certified by jurisdictional superintendent - Tribunal ruling in the Sujana Metal Products case (subsequently upheld by APHC); and Chattisgarh HC ruling in SAIL case examined identical issue and held inter alia that the goods supplied to SEZ developers are to be treated as exports under Section 2 (m) of SEZ Act; and that the amendment introduced in Rule 6(6) on 31.12.2008 is retrospective in nature - Chattisgarh HC ruling followed; demands held unsustainable and impugned order set aside. [Para 4, 5, 6, 7]


CCE Vs M/s Ankur Packaging Pvt Ltd (Dated: January 08, 2015)

CE - Valuation - s.4 of CEA, 1944 - If the scrap is retained by the job worker, sale of the same will affect the conversion charges towards job work and hence the same should be included in the assessable value of the job work goods - Revenue appeal allowed: CESTAT [para 5]



CCE Vs Chiripal Industries Ltd (Dated: January 07, 2015)

CE - Assessee engaged in manufacture of Polyester Partially Oriented Filament Yarn (POY) and Polyester Fully Drawn Filament Yarn (FDY) - SCNs were issued proposing demand of NCCD on the ground that they have not paid NCCD on captive consumption - Assessee reversed the amount from cenvat account under protest - Commissioner (A), set aside the adjudication order and allowed the appeal with consequential relief, therefore, assessee took suo moto credit - Aggrieved, hence appeal - Held: order passed by Commissioner (A) is upheld and appeal filed by Revenue is rejected: CESTAT [Para 7, 8, 9]


VST Industries Ltd Vs CCE, C & ST (Dated: December 3, 2014)

Excise – Cut tobacco and cigarette manufacturing – Cut Tobacco which forms part of tobacco refuse cleared without payment of duty as per Notification No. 3/2005 CE dated 24.2.2005 as amended – Denial of Exemption notification No. 52/2002 CE dated 17.10.2002 and imposition of penalties on ground that tobacco refuse is excisable goods, marketable and can be sold for consideration, wholly unwarranted since tobacco refuse cannot be considered as a final product but is merely a by-product – Levy of duty on such refuse not proper – Demand and penalties hence set aside – Appeals allowed with consequential reliefs. (Para 7, 8, 9, 10)


M/s GKN Sinter Metals Pvt Ltd Vs CCE (Dated: February 2, 2015)

CE - rule 4(4) of CER, 2002 - s. 2(a), s.35B(1) of CEA, 1944 - Application seeking permission to temporarily store finished goods outside the factory without payment of duty as construction activity was being undertaken - Commissioner rejecting the request - Against order passed by Commissioner in terms of rule 4(4) of C ER, 2002, appeal lies before the Tribunal: CESTAT [para 5]



M/s Torrent Pharmaceuticals Ltd Vs CCE (Dated: January 12, 2015)

Central Excise - Stay / dispensation of pre deposit - extension of stay - miscellaneous application filed for extension of period of stay granted vide Stay Order No. S/430/WZB/AHD/2011, dt.28.03.2011; under consideration herein.

Held: Larger bench, in Haldiram India case held that the Stay Order passed by the Tribunal may be extended after considering the necessary facts as it would authorize the exercise of discretion by the Tribunal for grant of such extension - appeal was not taken for hearing by the Tribunal as there is huge pendency of the appeals; noted that lot of appeals have already been listed and therefore it is difficult to take up the appeals hearing at this stage - extension of stay granted till the disposal of the appeal. [Para 2, 5, 6]


M/s Sesha Sayee Paper And Boards Ltd Vs CCE (Dated: January 13, 2015)

Central Excise – Refund - Appellants claimed refund of excess duty paid on account of change of duty rate for one day ie., on 07.12.2008, where the rate of duty on paper and paper products reduced from 8% to 4% vide Notification No. 58/2008 dated 07.12.2008 – Claim rejected in adjudication; allowed by Commissioner (Appeals) and agitated by Revenue before the Tribunal, who restored the original authority's rejection of refund – Meanwhile, refund was paid in the wake of Commissioner (Appeals) order; and consequent o the Tribunal ruling in favor of Revenue, proceedings initiated to recover erroneous refund; demand for its recovery adjudicated; upheld by Commissioner (Appeals), and agitated herein.

Held: Tribunal has already decided and settled the issue in favour of Revenue, holding that the appellants are not eligible for refund on account of unjust enrichment and

restored the original adjudication order - Commissioner (Appeals) has rightly rejected their appeal by relying upon this Final order - Though the appellants have filed CMA No. 1929/2011, which is pending before the Hon'ble High Court, there is no stay against the final order of the Tribunal - no infirmity in the impugned order. [Para 4]


Sri Chakra Cements Ltd Vs CC, CE & ST (Dated: November 7, 2014)

Central Excise - Cenvat Credit - Eligibility - Cenvat credit on items like MS angles, beams, sheets, channels etc used in maintenance and repair of fabrication works - Denied for want of necessary documents - Item wise actual usage provided - Held, issue of admissibility of credit is highly debatable, and requires detail consideration of the actual usage - Pre -deposit waived. (Para 3)


M/s Stalmec Engineering Pvt Ltd Vs CCE & ST (Dated: December 30, 2014)

Central Excise - Appellate Jurisdiction - Rebate in respect of goods exported on which duty paid from accumulated credit denied in adjudication, demand for recovery confirmed, upheld by Commissioner (Appeals) and agitated herein - Revenue raised preliminary objection on maintainability of appeal at Tribunal.

Held: Clause (b) of the first proviso to sub-Section (1) of the Section 35B of the Central Excise Act, 1944 provides that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall have no jurisdiction to decide any appeal referred to in clause (b) of the said sub-Section, if such order relates to rebate of duty of excise on goods exported - instant appeal relates to improper payment of rebate under Rule 18 of the Central Excise Rules and the impugned order passed by the Commissioner (Appeals), squarely covered under the first proviso to Section 35B (1) of the Central Excise Act, 1944 - The appeal relating to rebate of duty of excise of goods exported is not maintainable before the Tribunal; is dismissed as not maintainable - Appellant is at liberty to file appeal before the competent authority, who would consider the condonation of delay in filing of appeal in accordance with law. [Para 2, 4, 6]


The Salem Co-Operative Sugar Mills Ltd Vs CCE (Dated: December 11, 2014)

Central Excise - CENVAT credit - Obligation under Rule 6 of CCR 2004 in respect of common inputs used for manufacture of both dutiable and exempted products; demand for reversal of prescribed percentage of value of exempted clearances is under dispute herein.

Held: Facts akin to those considered by the Tribunal in the Rajashree Sugars case - Legislature has thoughtfully enacted that when common input is used in manufacture of excisable and non-excisable goods and no evidence of allocation of input is led, the levy @ 10% by law is warranted - appellant's plea that 10% levy is unwarranted is not entertainable when no evidence is on record to show that allocation is verifiable - 10% of the amount has already been paid and appropriation thereof is made; subject to verification of such version, lower Authority shall do the needful - In view of practical difficulties of interpretation of statute, there shall be no penalty on the appellant. [Para 3, 4, 5]


CCE Vs M/s Taj Madras Flight Kitchen Pvt Ltd (Dated: January 27, 2015)

Central Excise – SSI exemption – Revenue viewed that since the appellant firm is part of the Taj group of hotels, benefit is inadmissible – denial of SSI exemption proposed in the notice is the focus of Revenue's appeal herein.

Held: Clear from SCN that the appellant had supplied the goods without any brand name or logo embossed thereon; that goods purchased for supply did not carry any brand name or logo - Revenue sought to deny the exemption through an addendum, on the ground that the appellant was a part of the group company - nothing was spelt out in the show-cause notice which was originally issued as to the manner why the exemption benefit is not permissible to the respondent, which is only a bald show-cause notice without bringing out the allegation in clear terms for defence of the Respondent - Without specific and clear allegations and materials relied upon to make allegation, it cannot be said that the show-cause notice was proper in providing foundation to adjudication, as held by the Apex Court in various rulings - nothing apparent from show-cause notice demonstrating that the respondent was instrumentality of the group company to claim SSI exemption - In absence of corpora te veil being lifted by the show-cause notice itself that fails to provide a basis for adjudication and entire adjudication fails to stand. [Para 3, 5, 6]


Sri Chamundeswari Sugars Ltd Vs CCE, CC & ST (Dated: November 25, 2014)

Central Excise - Delay in filing appeal - Whether within limitation - Change of Jurisdictional office of Commissionerate subsequent to filing of appeal papers in time and transfer of file by department to designate jurisdictional Commissioner - Receipt of said appeal in the office of designate jurisdictional Commissioner must be considered to have been filed within limitation - Appellant need not file delay condonation application as there is no delay - Rejection of appeal as time barred is erroneous - Matter remanded. (Para 2)


CCE Vs Concrete Products & Construction Co (Dated: September 11, 2014)

Central Excise - Valuation - respondents are manufacturers of Concrete Sleepers - Revenue viewed that differential duty equivalent to modvat credit availed merited inclusion for assessment to duty as additional consideration retained by the respondent - Proposals dropped in adjudication, OIO upheld by Commissioner (Appeals), and agitated by Revenue herein.

Held: The short issue in this case is valuation under Section 4 of Central Excise Act whether the amount of Rs.49.36 allowed to be retained by the respondents from the price or not - original authority dropped the proceedings by relying on ruling in the case of Mahadev Industries and the Apex Court ruling in the case of Dai Ichi Karkaria - Commissioner (Appeals) relied on the ruling in the case of Kottukulam Engineers vide Final order No.781 to 784/2002 - respondent has rightly discharged the excise duty as per contract price which is a sale price - no reason to interfere with the impugned order. [Para 5]


M/s Asha Telecom P Ltd Vs CCE (Dated: January 12, 2015)

CE - Shortage of inputs - Assessee has admitted shortage of inputs and clearance

thereof without payment of duty - Extended period of limitation is rightly invoked - Appellant has paid only duty and not interest - As per section 11 AC of CEA, 1944, appellants are required to pay penalty equivalent to duty - Appeal dismissed: CESTAT [Para 7]


M/s U P Pumps Pvt Ltd Vs CCE (Dated: December 26, 2014)

CE - Classification - Appellant are manufacturers of Treadle Pumps, which are feet operated pumps designed for lifting water to the surface from depth upto 7 Mts - Whether Treadle pumps are classifiable under sub-heading no.8413.80 as "other pumps for liquids" or classifiable as "mechanical appliances of a kind used in agricultural or horticulture" under heading no. 8424.10 of the Tariff- Though the same are primarily meant for agricultural uses, fact remains that the same are feet operated pumps for handling water - Same cannot be said to be the mechanical appliances for projecting, dispersing or spraying liquids or powders and thus, the same cannot be treated as irrigation system - Goods are correctly classifiable under Heading 8413.80 - Appeal dismissed


Sagar Cements Ltd Vs CCE, C & ST (Dated: September 18, 2014)

Excise – Cenvat eligibility – Place of removal – Appellants paid freight and supplied the goods at the premises of customers on ‘FOR destination' and MRP basis – Place of removal is buyer's premises – Merely that invoice was prepared at appellant factory is irrelevant – Following precedents on issue in question, pre-deposit waived. (Para 5)


Raheja Plastics Vs CCE (Dated: January 2, 2015)

CE - Appellant are job workers for M/s Pidilite Industries Ltd. - Cenvat credit on inputs availed on basis of two bills of entry which are not in the name of appellant, but in the name of M/s. Pidilite Industries Ltd - It is alleged that appellant had availed irregular credit and same is recoverable u/r 15 of CCR. Held - As per Advanced Enzyme Technologies Ltd - 2014-TIOL-438-CESTAT-MUM, no dispute that import consignments have not suffered CVD or that the said consignments have not been received at appellant's factory - Bill of entry is specified document on the strength of which cenvat credit can be availed - Impugned order set aside and appeal allowed: CESTAT [Para 2, 5, 7]


M/s Shree Radhey Krishna Process Vs CCE (Dated: January 6, 2015)

CE - Clandestine removal of goods - case is made out on the basis of folding report, transport documents and miscellaneous papers resumed - it cannot be said that the case is made only on the basis of statements - appellant has not countered the documents referred in the SCN as well as adjudication order - extended period of limitation is rightly invoked - order upheld and appeals are rejected: CESTAT [ para 6, 7]


CCE & C Vs Jalna Sidhivinayak Alloys Pvt Ltd (Dated: August 08, 2014)

CE - Assessee availed CENVAT Credit on capital goods during financial year 2000-01 and 2001-02 for capital goods acquired during 2000-01 - assessee had availed 50% credit during 2000-01 and had claimed depreciation on balance amount of fixed assets under IT Act for year ended 31.3.2001 - credit of balance 50% availed in financial year 2001-02 - assessee have produced sufficient document, before issue of SCN that they have rectified mistake and have reduced amount of cenvat credit from the asset value, which fact in spite of being on record, have gone un-noticed both in SCN and O-I-O as we ll as O -I-A- - appellate order is uphold both on ground of limitation as well as on merits - appeal of Revenue is dismissed and cross-objection of assessee is allowed: CESTAT [Para 2, 8]


M/s Okay Glass Industries Vs CCE (Dated: February 9, 2015 )

Dishonest adjudication exercise - Commissioner defying the Tribunal's directions and passing an order which should never have been passed - Cost of Rs.10,000 /- imposed: CESTAT [ para 14]



M/s Rajat Industries Pvt Ltd Vs CCE & ST (Dated: December 15, 2014)

CE - Abatement - Rule 10 of Pan Masala Packing Machines (capacity determination & collection of duty) Rules, 2008 - for claiming duty abatement of the period during which a Pan Masala/ Gutkha Manufacturing unit was totally closed, the conditions prescribed in this Rule are that the closure must be for 15 days or more and at least three working days prior to commencement of closure, information should be given to the jurisdictional officer and, thereafter, the jurisdictional officers should seal these machines in such a manner that the same cannot be operated during the said period - application of intimation for closure from 15.01.2013 was given on the 10.01.2013 and was received in the office of Assistant Commissioner as well as Superintendent on same day - AC gave orders for sealing of machines on 11.01.2013 (a holiday) and sealing was done on 14.01.2013 - after completion of closure period, machines de-sealed on 01.02.2013 - abatement sought to be denied on the ground that intimation for closure was not given three 'working' days prior to commencement of closure.


CCE Vs M/s Birla Masuzawa Silk Mills Ltd (Dated : January 9, 2015)

CE - Limitation - Once it is accepted that the respondent under their letter had intimated the Department that they would be making DTA clearances on payment of applicable duty which in their case is nil, and when the invoices under which the DTA clearances were made at nil rate of duty also bear the signatures of the CE Officers, the Department cannot allege that the appellant had concealed the fact of making the DTA clearances at nil rate of duty - non filing of ER-2 returns would not make any difference, as the departmental officers otherwise knew that the respondent were making DTA clearances at nil rate of duty - It is not the allegation of the Department that the jurisdictional CE Officers were in collusion with the Respondent company and had collaborated with the Respondent in evasion of duty - There is no infirmity in the

Commissioner's order holding that the longer limitation period is not applicable - consequently, there is no question of demanding any interest u/s 11AB of the CEA , 1944, as it then existed and also there is no justification for imposition of penalty on GM and Directors of the company u/r 209A of CER , 1944 - Granting of cum-duty benefit is in accordance with apex court decision in Maruti Udyog - No merit in Revenue appeals, hence dismissed: CESTAT [ para 4.1, 5]


M/s Castrol India Ltd Vs CCE (Dated : October 23, 2014)

Central Excise - Stay / dispensation of pre deposit - CENVAT credit - applicants are engaged in the manufacture of Automotive Grade Lubricants and Specialty Oils as also trading activities of imported lubricating oils, through their various depots - used common input service in respect of dutiable final products as well as trading goods; proportionate credit reversed on audit intervention - later notice issued, proposing demand of ‘amount' @10/8/6% on the clearance value of the trading goods of the entire company - demands adjudicated with interest and penalty, agitated herein.

Held: Proportionate input service credit used in trading activity appropriated - on being pointed out by the audit, the applicant reversed/paid the amount based on the formula as per Rule 6(3A) (b) (ii) of CCR,2004 even before the issue of the show cause notice - applicant in their reply to the show cause notice categorically disputed the quantification of the demand in so far as that the demand was determined on the total value of the trading turnover of the entire company, which is ex-facie bad in law; and the adjudicating authority had not given any findings on this issue - Tribunal in the case of Mercedes Benz India held that “exempted goods” in Rule 2(e) CCR includes trading in prospective nature from 01.04.2011 - Prima facie, applicants have reversed the proportionate input service credit and therefore, it is a fit case for waiver of predeposit of the entire amount along with interest and penalty. [Para 4]


M/s ITC Ltd Vs CCE (Dated : November 17, 2014)

Central Excise - Clarification - Interim Order No. 37/2014 dated 11.02.2014 = 2014-TIOL-605-CESTAT -MAD decided three issues in favour of the applicant/assessee - demand of duty on third issue is on "unabsorbed overheads and cost of closing stock" whereas the interim order in respect of issue No.3, held that the "unabsorbed overheads referable to abnormal idle capacity for lack of order shall not form part of the cost of production and the demand of duty is not sustainable" - Appellant submits that in order to implement this order, the words "cost of closing stock" should be incorporated therein; culminating in the miscellaneous application (MA).

Held: On the face of record, the unabsorbed overheads referable to abnormal idle capacity for lack of order would include the closing stock, which shall not form part of the cost of production - Tribunal held that the demand of duty is not maintainable on the 3rd issue; clear that inadvertently the words "the cost of closing stock" were omitted in the said paragraph - Case law relied upon by Revenue distinguished inasmuch as in the present case, application filed by the applicant is not for review of the order; but for rectification of an error apparent on the face of the records that words "cost of closing stock" should be incorporated in the paragraph 7.4 of the Final Order - so clarified. [Para 4, 5, 6]


M/s Rane Madras Ltd Vs LTU (Dated : November 5, 2014)

Central Excise - Stay / dispensation of pre deposit - CENVAT credit - input service credit availed on product liability insurance service allowed in adjudication, reversed by Commissioner (Appeals) on Revenue's appeal; and agitated herein.

Held: Tribunal, in the Rotork Control case, dealt with identical issue of denial of credit on product liability insurance and held the same admissible - in view of this, applicants have made out a prima facie case for full waiver of pre-deposit of duty along with interest and penalty. [Para 4, 5]


M/s Hindustan Zinc Ltd Vs CCE & ST (Dated : January 5, 2015)

CE - CENVAT - Various items of Iron & Steel and items of Copper and Aluminium used for various purposes in the manufacturing plant - Prima facie Bench does not agree with the finding of the Commissioner that credit is not admissible as description of these items itself shows that their use is not as supporting structures - pre-deposit waived and stay granted: CESTAT [ para 7]

CENVAT - Structural steel items used for transmission towers for transmission of electricity from the power plant to the manufacturing plant, credit is admissible: CESTAT [ para 7]

CENVAT-Aluminium , copper or cathode plates used in the cell house for electrolysis, credit is admissible: CESTAT


CCE Vs Bhandari Deepak Industries Pvt Ltd (Dated : December 4, 2014)

CE - Exemption under Notfn 50/03-CE - When letter of Directorate of Industries, dated 02.01.2004, acknowledging more than 25% increase in installed capacity of semi corrugated paper and corrugated boxes was preceded by inspection of the unit on 26/12/2003, it is absurd to doubt the correctness of this letter - Just because no additional machinery for manufacture of corrugated boxes was installed, it cannot be presumed that there was no enhancement in manufacturing unit's capacity to manufacture corrugated boxes - For achievement of 25% or more enhancement in installed capacity for purpose of exemption under said Notfn, it is not necessary that expansion should be in each and every section of manufacturing plant - Appeal dismissed: CESTAT [Para 5]


M/s AGV Fenestration Pvt Ltd Vs CCE & ST (Dated: December 9, 2014)

CE - When the appellant's unit was located in the area specified in the Notf . No. 50/03-CE and the goods being manufactured by them was not in the negative list of the notification, the appellant had nothing to gain by clearing the goods clandestinely without reporting to the Department -Pre -deposit waived and stay granted: CESTAT [para 6]



Sri Bhavani Textiles Processors (P) Ltd Vs CCE (Dated: December 2, 2014)

Central Excise – Stay / dispensation of pre deposit – Applicant is a job worker of CVIL; they received grey cotton fabrics from CVIL and processed the same under Rule 96D of erstwhile of Central Excise Rules, 1944 – Revenue viewed that the principal manufacturer is coating HDPE on the fabrics processed by job worker; confirmed demands, agitated herein.

Held: on the identical issue, the Tribunal in the case of another job worker, SSM Processing Mills, granted unconditional stay – in view of that, predeposit of entire amount of duty along with interest and penalty waived. [Para 1, 2]


M/s Ultratech Cement Vs CCE & ST (Dated: January 14, 2015)

CE - CENVAT – It is not disputed that Capital goods have not been received by the appellant – in this view of the matter, appellant is entitled to take CENVAT credit on the strength of the Original Triplicate copy of invoices issued by supplier – decision of P&H High Court in Stelko Strips Ltd. 2010-TIOL-891-HC-P&H-CX relied upon – Appeal allowed: CESTAT [ para 6]

CENVAT – Input Service – Rule 2(l) of CCR , 2004 – Rent-a-cab service – any services availed by the manufacturer of excisable goods in the course of business of manufacturing is to be considered as an Input Service – appellants are entitled to take credit on Rent-a-cab service – Order set aside and appeal allowed: CESTAT [ para 6]


M/s Alpsco Graintech Pvt Ltd Vs CCE & ST (Dated: December 29, 2014)

CE - Classification - Appellant classified "rice bucket elevator" and "rice conveyor" under heading 8437 as "machinery used in Milling Industry" where the tariff rate is nil, while department viewed classification under heading 8428, as "other lifting, handling, loading or unloading machinery" - As per opinion of technical experts, these machines are specially designed for handling and processing of food grains and that as per the characteristics of the raw material, component and fabrication techniques used for manufacture of grain dischargers and grain feeders, these are not fit for handling heavy and abrasive type material like sand and coal lime - Same imported machinery are being classifiable by different Customs Houses as milling machinery under heading 8437 - Goods are correctly classifiable by appellant as milling machinery under heading 8437 - Stay granted: CESTAT [Para 5]


M/s Annur Cotton Mills Vs CCE (Dated: December 1, 2014)

Central Excise – Stay / dispensation of pre deposit – exemption – applicant, a 100% EOU engaged in the manufacture of Cotton Terry products, paid the duty at the time of de-bonding and subsequently they claimed the benefit of Notification No.23/2003-CE, dated 31.03.2003; denied in adjudication; demand for differential duty confirmed and agitated herein.


M/s Central Coalfields Ltd Vs CCE & ST (Dated: September 23, 2014)

CE - Redemption fine, Penalty - On ascertaining fact of Central Excise – Demand - Applicant is a Govt. of India Undertaking, engaged in the production of Coal which has been brought under the Central Excise net w.e.f. 01.03.2011 - present demand is confirmed against them on the ground of shortages detected by internal vigilance / CBI, adjusted in their stock and reflected in ER-1.

Held: Entire issue relates to demand of duty on the shortages/adjustments recorded in the ER-1 return for the month of May, 2011 by the Appellant themselves - Appellant claims that prior to levy of excise duty, shortages in the stock of Coal was noticed by their vigilance team and it continued till April, 2011; that on the basis of second stock verification by their vigilance team, the final shortage figure was confirmed to be 11.76 lakh M.T. which they have adjusted in their books of accounts and reported accordingly in their ER-1 return – Adjudicating authority arrived at a conclusion about removal of the said shortages in sto cks on the basis of their declaration only - Appellant now produced a copy of CBI report, wherein, inter alia, discrepancy in the stock was found to be due to excess reporting in the earlier period by the officers of the Appellant - This fact needs to be scrutinized along with other evidences on record and the evidences that would be produced by the Appellant - appropriate to remit the case to decide the issue afresh taking into consideration the CBI report and all evidences on record and that would be produced by the Appellant, after providing reasonable opportunity of hearing. [Para 5]


Guardian Castings Pvt Ltd Vs CCE (Dated: November 27, 2014)

CE - Redemption fine, Penalty - On ascertaining fact of clandestine removal of goods, appellant has paid duty, interest and 25% of duty as penalty - Neither were the goods available nor cleared under any bond, therefore, redemption fine is not imposable - When duty, interest and 25% of duty as penalty has been paid by main assessee therefore, issuance of SCN and imposition of penalty on co -appellant does not arise – Appeal allowed: CESTAT [Para 7, 7.2]


Regency Ceramics Ltd Vs CCE, ST & C (Dated: September 19, 2014)

Excise - Reversal of credit and remission of duty - Finished goods destroyed due to industrial violence leading to destruction of factory by fire notwithstanding police protection granted by High Court - Appellant has done everything to prevent loss to the factory and property - No negligence attributable - Notwithstanding huge loss to appellant, Cenvat credit of inputs used in destroyed goods reversed and sought remission under Rule 21 in reply to SCN - Prima-facie case made out - Pre-deposit is waived. (Para 3, 4)


M/s Indian Hume Pipe Co Ltd Vs CCE & ST (Dated: December 15, 2014)

CE - Merely because the contract terms provided that the price at which the PSC pipes are to be supplied shall be inclusive of all taxes, it cannot be presumed that the price also included excise duty – s.11D has to be read with s.12A & 12B of CEA , 1944 - demand u/s 11D of CEA , 1944 prima facie not sustainable – Pre -deposit waived and

stay granted: CESTAT [ para 6]



M/s Johnson Matthey India Pvt Ltd Vs CCE (Dated: January 5, 2015)

CE - Appellant during period of dispute were collecting full amount of sales tax from customers and were paying only 50% of the same to State Government and were retaining 50% of tax as per the State Government's Scheme in lieu of capital subsidy - Point of dispute is as to whether the amount of sales tax collected by appellant from customers and retained with them is includible in assessable value or not - Though, the reasoning given by Commissioner in impugned order for confirming the demand is confusing - Appellant states that out of total duty demand of Rs. 72,23,683/-, the duty demand of about Rs. 32 Lakhs is within time - Appellant is directed to deposit am amount of 32 Lakhs: CESTAT [Para 4]


Brakes India Ltd Vs CCE & ST (Dated: September 3, 2014)

Central Excise - CENVAT credit - Stay / dispensation of pre deposit - applicant availed input services credit on Clearing and Forwarding Services and Courier Services; denied in adjudication; demands confirmed; upheld by Commissioner (Appeals) and agitated herein.

Held: Considering the fact that the appellant availed input credit on the C&F services, which is meant for export of goods and also considering the small amount involved on courtier services, as well as the Tribunal rulings relied upon; appellant has prima facie made out a case for waiver of predeposit of dues. [Para 4]


U K Paints India Pvt Ltd Vs CC, CE & ST (Dated: June 2, 2014 )

Central Excise - Stay / dispensation of pre deposit - CENVAT credit - input services credit availed on invalid documents not confirming to Rule 9(1) of CCR 2004 denied in adjudication, demand for recovery confirmed, upheld by Commissioner (Appeals), and agitated herein.

Held: force in the submission of appellant that if opportunity of reconciliation is granted, they would be able to satisfy Commissioner (Appeals); to provide natural justice, it is necessary that one opportunity is granted - impugned order set aside and case remanded to Commissioner (Appeals) for decision within three months. [Para 9, 10]


CCE Vs Orient Ispat Pvt Ltd (Dated: November 7, 2014 )

CE - As there was nobody representing the respondent, Revenue appeal was disposed of ex-parte and in Revenue's favour - judgements in favour of respondent could not be considered - Assessee should not be made to suffer for any failure on the part of the Advocate - final order recalled - appeal restored to its original number and ROA

application allowed: CESTAT [ para 6, 7]


Maruti Suzuki India Ltd Vs CCE (Dated: January 5, 2015 )

CENVAT - Rule 2(l) of CCR , 2004 - Input Service - Visiting Technical personnel of Suzuki Motors, Japan provided with first class furnished western -style house for stay - Outdoor Catering Service and House-keeping services are to be considered as Input Service - Credit of ST prima facie available - Stay granted: CESTAT [ para 6]



Supangita Engineer Pvt Ltd Vs CCE, C & ST (Dated: May 12, 2014)

Excise - Cenvat - Irregular availment - Appellant carrying on manufacturing activity in two units due to space constraint which constituted as one factory - Common accounting and balance sheets prepared for both the units as one - Availment of entire CENVAT credit in one unit instead of availing proportionate credit in both the units - Is totally a revenue neutral situation in as much as the manufacturer is entitled to Cenvat credit - No specific allegations of willful misstatement or suppression of facts - Intention to evade duty not attributable more so when credit was reversed as pointed out - Impugned order confirming imposition of penalty and interest by invoking extended limitation period, unsustainable as such set aside. (Para 5, 6)


M/s Kannappan Iron And Steel Co Pvt Ltd Vs CCE (Dated: September 10, 2014)

Central Excise – Stay / dispensation of pre deposit – Valuation – On the dispute related to valuation of related party clearances, stay order dated 03.07.2014 passed - Appellant prays for modification of stay order herein.

Held: issue involved in this case is undervaluation of the goods in so far as the applicant sold the goods to their two dealers, who are related persons, much lower than the price of the unrelated persons on the same day - In the present case, documents placed by the applicant are new evidences, which were not placed before the Commissioner during the adjudication proceedings at any point of time - such evidences cannot be accepted in the Application for Modification of the stay order - no merit in the applicatio n filed by the applicant; however, considering the financial hardship and the submissions by both sides, the period of compliance is extended for further six weeks. [Para 4]


M/s Shreewood Products Pvt Ltd Vs CCE (Dated: January 14, 2015)

CE - Refund, Interest - s.11B , 11BB of CEA , 1944 - Once the issue of refund and interest on the same for the period of delay was finally decided by the Commissioner (Appeals) vide order dated 17.03.2009 and that order was not challenged by the

department, the issue of refund and interest on the same for the period of delay cannot be re -adjudicated and in this regard, the Asstt . Commissioner's order as well as Commissioner (Appeals) treating the appellant's reminder letter dated 30.03.2009 as refund application and on this basis, refusing the interest on the ground that the refund of Rs.88 ,72,686 /- was paid within three months is totally wrong - refund claim after denovo adjudication in pursuance of Tribunal's order had been filed u/s 11B and, therefore, interest for period of delay is to be considered only under s.11BB - judgment of Apex Court in ITC Ltd. - 2004-TIOL-112-SC-CX-LB is not applicable - Department is directed to pay interest on refund to the appellant u/s 11 BB of the CEA , 1944 from the date, immediately after expiry of three months from the date of filing of refund claim on 21/10/08 - Appeal allowed: CESTAT [ para 6]


Amrut Bhagini Mandal (Trading Unit) Vs CCE (Dated: January 14, 2015)

CE - Manufacture - s.2(f) of CEA, 1944 - Duty paid PVC sleeves cut into horizontal pieces and subjected to heat treatment to form sealing sleeve for the purpose of shrink wrap - Process amounts to manufacture as a new commodity with different name, character and use emerged and CE duty is payable: CESTAT [para 5, 5.1, 5.2]



M/s Mukand Ltd Vs CCE (Dated: October 29, 2014)

CENVAT - Credit availed on inputs - Appellant was sending semi processed inputs for carrying out some process to different job workers - Said inputs after being processed were returned back to appellant - It was alleged that appellant have not received back quantity of waste and scrap from job-workers, which amounts to clearance of waste and scrap without payment of duty – Held: Waste and scrap are not manufactured goods irrespecive of whether they are generated at premises of principal manufacturer or at premises of job-worker - legislature has consciously not made any provisions for reversal of any credit taken on duty paid inputs in case of clearance of waste and scrap and/or, their non-return from job worker's premises under CER, 2002 read with CCR, 2002/2004 - Impugned order set aside and appeal allowed: CESTAT [Para 3, 6]


M/s JCT Ltd Vs CCE (Dated: December 24, 2014)

CE -appellant is entitled for interest on delayed refund for the period after three months from the date of order passed by the Tribunal till sanction of the refund: CESTAT [para 7]


Shri Ritesh Jain Vs CCE (Dated: February 24, 2014)

CE - Penalty - P rimary requirement of Rule 26 is that the goods should be held liable to confiscation and the person should be aware that the goods are liable to

confiscation - In the adjudication order, there is no finding given by the adjudicating authority in respect of liability of confiscation of the goods - In the absence of such a finding, imposition of penalty under Rule 26 cannot be sustained - Pre-deposit waived &Stay granted : CESTAT [para 5.1, 5.2]


M/s Rapicut Carbides Ltd Vs CCE & ST (Dated: November 12, 2014)

CE - Rule 57-I of CER, 1944 - Second round of litigation - In first round this Tribunal remanded the case back to Adjudicating authority to pass the order on limitations claimed by appellant - Adjudicating authority has held that mere 'Suppression of facts' on the part of appellant is sufficient to invoke extended period of 5 years under provisions of Rule 57-I of CER, 1944 - Aggrieved, hence appeal - Words "suppression of facts', used in said Rule are in the company of words like collusion and wilful mis -statement and will have to be understood to mean 'with intent to evade payment of duty' - Observations made by Adjudicating authority that 'no intention to evade' is required for invoking extended period of 5 years, can not thus be appreciated as correct interpretation of law - Though there is no dispute that provisions of Section 11A of CEA, 1944 are independent of recovery machinery under said Rule of CER, but the ratio of words 'suppression of facts' and 'wilful' as interpreted by Apex Court will also be applicable to recovery provisions of said Rule - Appellant is not agitating the issue of admissibility of credit but there is no evidence on record that there was any deliberate act on part of appellant to avail inadmissible credit - extended period of 5 years can not be invoked for not following the procedure properly when otherwise the credit was admissible - Period of demand is from January 1990 to December 1990 and SCN is issued on 11.11.1994 and is clearly time barred under said Rule - Appeal allowed: CESTAT [Para 2, 4.3, 5, 6, 7]


M/s Ultratech Cement Ltd Vs CCE (Dated: March 12, 2014)

Central Excise - CENVAT credit - appellants engaged in the manufacture of white cement and putty, availed credit on the basis of four invoices issued by M/s. Rishabhdev Techno Cables Ltd., who were established by investigation to have not discharged the same - Revenue viewed the credit inadmissible at appellant's end, adjudicated demand with interest and penalty, agitated herein.


M/s NS Rama Rao Body Works Vs CCE (Dated: November 20, 2014)

Central Excise - Classification - Stay / dispensation of pre deposit - applicants are engaged in the manufacture of steel bins and classified it under CSH 8705 90 00 of CETA, 1985 - After investigation by the DGCEI, Revenue viewed that the goods would be classified under sub-heading 7309 00 90 - demands adjudicated and agitated herein.


Rajshree Sugars And Chemicals Ltd Vs CCE (Dated: November 20, 2014)

Central Excise – Captive Consumption - appellants are engaged in the manufacture of Sugar & Molasses (by product) in the sugar plant, Electricity in the co -generation plant and Ethyl Alcohol in various forms (both dutiable and exempted) in the distillery plant; all situated within the same premises and availed credit on inputs and capital goods - benefit of Notification No.67/95-CE dated 16.3.1995 claimed in respect of clearance of the molasses captively used in the manufacture of various dutiable and exempted final products - procedure under Rule 6(3)(i) & (ii) of CENVAT Credit Rules, 2004 adhered to and amount of 6% / 10% of value of exempted goods paid at the time of clearance – Revenue viewed that after re-structuring of Central Excise Tariff from 6 Digit to 8 Digit with effect from 1.3.2005, the un-denatured Ethyl Alcohol was removed from 8 Digit Central Excise Tariff and Sub-heading 2207 2000 carries only spirits and Ethyl Alcohol denatured of any strength; that Rectified Spirit and ENA are non-excisable goods with effect from 1.3.2005 and therefore, the appellants are not eligible to avail benefit of exemption Notification No. 67/95-CE on Molasses captively used in the manufacture of Rectified Spirit and ENA - duty on the molasses captively consumed in their manufacture, denying the benefit of Notification No.67/95-CE demanded in all cases with interest and penalty; CENVAT credit availed on the molasses purchased from outside denied in two cases and credit availed in co-generation plant used in manufacture of exempted goods denied in one case; commonly agitated herein.


CCE Vs Ambika Waste Management (P) Ltd (Dated: December 12, 2014)

CE - Maintainability of appeal - Amount involved in dispute is Rs.1.62 lakh - As per new litigation policy, Government of India has laid down that no appeals should be filed by Revenue before the Tribunal in which the amount involved is less than Rs.2 lakhs - Appeal dismissed: CESTAT [Para 4, 5]


CCE Vs M/s Jay Iron & Steel Industries Ltd (Dated: December 12, 2014)

CE – CENVAT credit – Supply of scrap by dealers – allegation that dealers have not supplied any scrap but only issued invoices – investigation is silent as to how the respondents manufactured finished material without receiving inputs – law is settled that as long as duty payment is accepted on output, benefit of credit is not deniable – Benefit of CENVAT Credit, being substantial benefit granted by law, it cannot be denied on flimsy ground like, suspicion or presumption, as the same cannot take the place of proof - Revenue appeals dismissed: CESTAT



M/s Colius Paper Converters Vs CCE (Dated: October 27, 2014)

Central Excise – Offence case - M/s Colius was visited by officers, and investigation launched – it was observed that the main appellant had issued 4 parallel invoices without discharging duty; maintained parallel RG-1 register up to Dec 2006; and cleared the finished goods clandestinely without payment of duty – after Dec 2006, entire production was cleared to M/s Maple – demands adjudicated for clandestine clearances and penalties imposed on the firms and individuals agitated herein.


M/s Mann And Hummel Filter Pvt Ltd Vs CCE & ST (Dated: December 3, 2014)

Excise – Cenvat – Credit on input services used are common to both manufacturing and trading activities – Demand for reversal of proportionate credit attributable to trading activity – Commissioner (A) allowed credit as admissible based on prevailing precedent holding that trading is not an exempted service – Wrong availment of credit by appellant with intention to evade tax hence not attributable – Prima-facie case in favour of assessee – Pre -deposit waived. (Para 4)


M/s TK Warana SSK Ltd Vs CCE (Dated: August 5, 2014)

CENVAT - Appellant availed Credit of inputs and input services for purpose of manufacture and removal of goods - Credit of services availed by manufacturer is available from place of removal, which herein is railway station, on goods which have been sold on FOR basis and Port when goods sold at FOB basis - conditions specified in Circular 97/8/07 were satisfied by appellant – As per Inductotherm India Pvt. Ltd ., in case of export of Cargo Handling Services, ST paid thereon is available as input services, as in such case, place of removal is Port - appellant is entitled to CENVAT Credit on transportation charges/freight which is incurred for removal of goods till railway sta tion (on FOR basis) or the Port - impugned order set aside and appeal allowed: CESTAT [Para 2, 6, 6.1]


Akas Medical Vs CCE (Dated: November 11, 2014)

Central Excise - Stay / dispensation of pre deposit - SSI exemption - appellant, engaged in the manufacture of Sight testing instruments bearing the brand name "AKAS" as well as trading of indigenously procured and imported medical equipments; availed SSI exemption under Notification No.8/2003 dt. 1.3.2003 - exemption denied on the ground that the brand name "AKAS" is owned by M/s. Akas Medical Equipment, Trichy, a different entity - demands adjudicated; Commissioner (Appeals) dismissed their first-stage appeal for non compliance with stay order; now agitated herein.


Hindalco Industries Ltd Vs CCE (Dated: January 22, 2015)

CE - Interest - Appellantsavailing CENVAT credit of Rs.14.53 lakhs on the materials rejected by the customers and returned to the factory for refining, reprocessing, etc. - Revenue taking a view that the conditions laid down under Rule 16 of Central Excise Rules have not been fulfilled and as a result, the demand for duty of Rs.13.94 lakhs being the credit involved was confirmed with interest - Tribunal directing appellant to deposit 50% of the amount as pre-deposit and later vide Final Order dated 24.2.2005 rejecting appeal - appellant paying balance dues with interest and later filing an appeal before Kerala High Court who in their judgment dated 24.1.2008 held the appellant eligible for the credit and allowed the appeal - thereafter appellant filing a refund claim for Rs.14,74,012/- paid in cash by them comprising of inadmissible credit of Rs.6,96,710/- and interest of Rs.7,77,302/- - lower authorities holding as

admissible the amounts paid, however, appellant before CESTATseeking payment of interest on the interest amount paid by them.

Held: Interest was added to the duty in Section 11B in May 2008 - However, the Parliament did not consider it appropriate that the word interest should be added in Section 11BB also - If interestwas also to be added in Section 11BB while providing for payment of interest on duty, the claim of the appellant could have been sustained - When the statute does not provide for payment of interest while sanctioning the refund of interest on duty, the Tribunal has no power to order refund of interest on interest being creation of the statute - Appeal has no merit, hence rejected: CESTAT [para 6.1, 7]


CCE Vs Emerson Network Power (I) Ltd (Dated: December 26, 2014)

CE - Valuation - s.4 r/w Rule 5 of Central Excise Valuation (Dete rmination of Price of Excisable Goods) Rules, 2000 - Revenue alleging that assessee had collected additional amounts as transportation charges by raising various debit notes but not indicating said amounts on invoice - Nothing on record to show that amounts collected were not freight charges but something else - It also transpires that assessee had collected only an amount, which is freight paid by them to the transporters and raised a debit note separately - amounts not included in AV - Impugned order dropping demand is correct and does not suffer from any infirmity - Revenue appeal rejected: CESTAT [Para 3, 4]


M/s Saga Laboratories Vs CCE (Dated: September 30, 2014)

Central Excise - Extension of Stay - extension earlier granted was agitated by Revenue before HC who ruled that in terms of the Apex Court ruling in the Kumar Cotton Mills case, CESTAT has the powers to extend the stay beyond the period of 365 days under the provisions of Section 35C (2A) of the Central Excise Act, 1944; and remitted the case to the Tribunal for passing a speaking order / reasoned order considering 3rd proviso to section 35C(2A) of the Central Excise Act, 1944 - taken up herein.


M/s Bayforge Ltd Vs CCE (Dated: November 5, 2014)

Central Excise - CENVAT credit - Stay / dispensation of pre deposit - appellant availed input services credit under Rule 2(l) of CCR 2004 on services like Insurance Services, Corporate Membership Services, Payroll Services, Photocopier Services and Travel Agency Services; denied in adjudication, demand for recovery confirmed with interest and penalty and agitated herein.


M/s Atmasco (P) Ltd Vs CCE & C (Dated: November 27, 2014)

Central Excise - Exemption - Appellant manufactured various boiler parts and cleared the same to Mega Power Project, claiming exemption under notification No.12/2012-CE, viewed by Revenue as inadmissible on the grounds that the parts manufactured by the appellant are general fabrication structures, which are not specified in the notification in question, either as parts or components of any machinery - demands adjudicated and agitated herein.


Mahavir Castings Pvt Ltd Vs CCE, C & ST (Dated: December 17, 2014)

CE - Tribunal directed the applicant to pre -deposit the entire amount of duty and to report compliance - Applicant deposited the entire amount of duty as per stay order and also enclosed TR -6 challan but by Final order Tribunal dismissed appeal for non-compliance of the stay order - later application filed for Restoration of Appeal but Registry wrongly treated the same as an application for extension of stay and Tribunal granted extension of stay - there is no fault on the part of the appellant - Order dismissing the appeal recalled and appeal fixed for hearing: CESTAT [ para 5, 6]


Panasonic Appliances India Co Ltd Vs CCE (Dated: November 5, 2014)

Central Excise - CENVAT credit - Stay / dispensation of pre deposit - adjudicating authority denied credit on Outdoor Catering Services and Clearing & Forwarding services; Commissioner (Appeals) upheld the adjudication order, now agitated herein.


Pepsico India Holdings (P) Ltd Vs CCE (Dated: November 5, 2014)

Central Excise - Demand - Stay / dispensation of pre deposit - appellants are manufacturing aerated water; adjudicating authority demanded duty on breakages of bottles while handling - Commissioner (Appeals) upheld the demand, agitated herein.


Sundaram Fasteners Ltd Vs CCE (Dated: November 5, 2014)

Central Excise - MODVAT credit - Stay / dispensation of pre deposit - appellant, manufacturers of bolts, buts and screws, availed modvat credit on the inputs used in the manufacture of final product as a job worker and cleared the goods to Principal manufacturer under Notification No.214/86-CE - Revenue viewed the credit inadmissible; adjudicated demands with interest and penalty; agitated herein.


M/s Gautam Paper Udyog Vs CCE (Dated: November 25, 2014)

CE - appellant submits that the process conducted by them does not amount to manufacture whereas it is the contention of the Revenue that the activity is "manufacture" & the product would get covered under the category of boxes or cartons Heading 4819 2070 and or 4819 2090 - There is an element of the doubt as to the correct classification of the product and such classification can be considered by Bench only at the time of final disposal of appeals - Pre -deposit ordered of Rs.10 lakhs: CESTAT [ para 6]


CCE Vs Navneet Publications (I) Ltd (Dated: January 14, 2015)

CE - Mere cutting and slitting of paper roll and conversion into foolscap sheets does not change the identity of the paper – activity is not manufacture u/s 2(f) of CEA, 1944 – much water has flown on the subject matter – Revenue appeal dismissed: CESTAT [para 5, 6]



Ranbir Sharma Vs CCE (Dated: August 13, 2014)

CE – Valuation - appellant is an independent textile processor and undertakes processing of fabrics on job work basis for merchant manufacturers - appellants paying duty on jo b charges plus 15% towards notional profit as per Trade Notice No. 20/2001 which was not required to be paid - If 15% notional profit is excluded then appellant have paid excess duty which is required to be adjusted against charges of additional processing such as rotary, peaching or zero zero etc., then duty demand would not be there – appellant entitled for availing deemed credit as per notfn 6/2002 – In respect of goods cleared for home consumption deemed credit cannot be denied on inputs when duty is paid on final products - The adjustment of 15% notional credit has also not been done in case of exports and it cannot be held that export consignments were over-valued - As extended period of limitation is not invokable, consequently demand of duty is not sustainable – Therefore deemed credit correctly availed – impugned order set aside and appeal allowed: CESTAT [Para 2, 5, 6]


Supreme Petrochem Ltd Vs CCE (Dated: November 3, 2014)

Central Excise – Stay/Dispensation of pre -deposit - CENVAT Credit of Service Tax paid on outward transport – As seen from the purchase orders and the copies of the invoices submitted by the appellant along with appeal papers and the contract, it is stated that "door delivery" to the buyers premises - The appellants have discharged duty on the total value of the goods inclusive of freight and insurance - Considering the decisions of High Court and the Tribunal, prima facie the appellants have made out a case for waiver of predeposit and stay - Pre-deposit waived and recovery is stayed till the disposal of the appeals. (para 4)


CCE Vs Saroj Engineers (Dated: October 31, 2014)

CE - Respondents availed CENVAT credit on supplementary invoices issued by job workers - job workers have not suppressed the facts and allegation of suppression was discharged - when complete finding is on record and nothing contrary has been proved by Revenue, impugned order has no infirmity so upheld - appeal filed by Revenue is dismissed: CESTAT [Para 2, 7]


Page Industries Ltd Vs ST (Dated: November 12, 2014)

Excise - Cenvat - Availment of credit based on invoices addressed to head office and goods received at job worker's premises - Credit not properly accounted for alleged - Appellant willing to show that the goods have been received, utilized and finished goods have been manufactured and duty has also been paid and pleaded to release documents seized to substantiate his case - Further, appellant disputed the denial of Cenvat credit on certain amounts though clearly admissible - On facts, matter remanded to original authority to consider afresh as observed on supplying documents necessary to appellant. (Para 2, 3)


M/s Kaakteeya Fabs Pvt Ltd Vs CCE & ST (Dated: November 21, 2014)

Central Excise – Stay / dispensation of pre deposit – Manufacture - Appellant 2 entered into a turnkey contract with NTPC and subcontracted a portion to Appellant 1, whose scope covered fabrication and erection of CW liners and pipes from steel supplied by Appellant 2; who discharged service tax on entire contract value - Revenue viewed that Appellant 1 was undertaking the manufacture of pipes a nd was not discharging the Central Excise duty liability; demands adjudicated with penalty on both firms, and agitated herein.


CCE Vs Balmer Lawrie And Co Ltd (Dated: October 31, 2014)

CENVAT - shortage of raw materials during stock taking – credit taken sought to be recovered – Credit admissibility is dependent on various factors to see whether entire consignment is received in factory or was diverted – so also tolerance for hygroscopic, volatile and such other cargo has to be allowed as per industry norms excluding unreasonable or exorbitant claims - marginal variation due to weighment by different machines is also to be ignored if within tolerable limits – stock of lubricating oil is measured by way of dip method and which shows variance due to temperature and density - no infirmity in the order of Commissioner(A) allowing credit – Revenue appeal dismissed: CESTAT [Para 4, 8]


M/s Varun Impex Vs CCE (Dated: September 22, 2014)

CE - Availment of CENVAT Credit on basis of fake and bogus input invoices - It was

alleged that Singh Inc. had cleared 4 consignments to appellant - In all CE invoices delivery mode was indicated as Ex-factory - Vide impugned O -I-O, Commissioner has imposed penalties, recording the finding that since the noticee was not a manufacturer so cannot evade CE duty, penalty under Section 11AC of CEA, 1944 was rightly not imposed, but it does not automatically mean that penalty under Rule 26 of CER, 2002 is not imposable - Appellant claims that transactions were paper transactions, there were no goods liable for confiscation and, therefore, penalty under said rule cannot be imposed without confiscation - Held: Being second round of litigation and in view of amendment made under Section 35F of CEA, 1944, appellants are directed to deposit an amount of 7.5% of penalty imposed on them: CESTAT [Para 3, 6]


M/s Tamil Nadu Newsprint And Papers Ltd Vs CCE (Dated: September 5, 2014)

Central Excise - CENVAT credit - appellants are manufacturers of Printing & Writing Paper and Newsprint, availing Cenvat credit on welding electrodes used in their manufacturing plant for repairs and maintenance of plant and machinery for the manufacture of excisable goods - Revenue viewed the same inadmissible, confirmed demands in adjudication, upheld by Commissioner (Appeals) and agitated herein.

Held: issue of admissibility of cenvat credit on the welding electrodes used for repair and maintenance of plant and machinery has been agitated before the Apex Court, various High Courts and Tribunal - Tribunal's Order No. 1300/2011 dated 13.12.2011 passed by relying on the ruling in the case of SAIL Vs. CCE, Ranchi which in turn has been clearly distinguished by the High Court of Chhattisgarh in the case of Ambuja Cement Eastern Ltd. [Para 6]

Madras HC in the case of CCE, Trichy Vs. India Cements Ltd. on the identical issue has upheld Tribunals order in holding that the welding electrodes used for repair and maintenance are covered under the definition of capital goods; same was relied by the Tribunal in the appellant's own case in Final Order No. 721/2010 dated 01.07.2010 - similar view taken by Principal bench of Tribunal in Kisan Co-operative Sugar Factory Ltd., holding that when three high courts ruled that welding electrodes used for repair and maintenance of plant and machinery are eligible for Cenvat credit, it is these judgments which will hold the field - Following Madras HC ruling and Kisan Co-operative decisions, appellants held eligible for the credit availed on the welding electrodes used for repair and maintenance - impugned order set aside. [Para 7, 8]


M/s Mars Mercantile Pvt Ltd Vs CCE & ST (Dated: October 9, 2014)

CE - Demand is for the period April, 2009 to March, 2010 - As per order of this Tribunal No.S-83/KOL/2012 dated 08.02.2012, pre-deposit of dues waived and stay granted: CESTAT [Para 2]


CCE Vs Yashwant Industries Works Pvt Ltd (Dated: August 20, 2014)

CE - Superseal Mastic Epoxy Putty manufactured & sold under brand name Feviseal Easimix– duty paid @16% on the invoice/selling price - Revenue view that same is

classifiable under CH 3214.00 and assessable u/s 4A of CEA, 1944 – lower authorities holding in favour of assessee, hence Revenue in appeal. HELD: Chemical Examiner's report classified the product as "Other Mastics" Ch.3214 - "Other Mastics" have been excluded for levy of duty u/s 4A of CEA – goods rightly valued u/s 4 on transaction value - Revenue appeal dismissed : CESTAT [para 4, 5]


M/s P and P Overseas Vs CCE (Dated: October 29, 2014)

Central Excise – Refund – Appellant, a 100% EOU, filed claims for cash refund of the accumulated Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2004 – Claim partially denied in adjudication to the extent of Cenvat credit taken in respect of CHA services availed for export of the goods and courier services used in connection with the manufacturing business of the appellant – It was viewed that the CHA services and courier services are not eligible for Cenvat credit and secondly the export proceeds have not been received by the appellant – Commissioner (Appeals) upheld the same, now agitated herein.


M/s Saraf Metal Works Vs CCE (Dated: July 14, 2014)

Central Excise – Stay / dispensation of pre deposit – Demand – clandestine clearance of aluminium wires alleged on the basis of kachcha receipts, demands confirmed with penalties on firm and individuals agitated in the first round of litigation was remanded for de novo consideration, reconfirmed, and now agitated in the second round of litigation.


CCE Vs Sharp Batteries & Allies Inds Ltd (Dated: November 14, 2014)

CE - Respondent cleared goods to customers from godown - whether transportation charges being paid for transportation of goods from factory to godown is includable in AV – Commissioner(A) dropping demand – Revenue in appeal before CESTAT. Held: It is immaterial whomsoever has paid transportation charges, same are includable in AV - Respondent has raised issue of limitation but while filing their price list, they have not stated the facts to department, therefore, extended period was rightly invoked by Revenue - Matter remanded: CESTAT [Para 8, 9]


M/s Soma Papers & Industries Ltd Vs CCE (Dated: October 22, 2014)

CE - Valuation - s.4 of CEA, 1944 - Whether transportation charges of inputs is required to be added in A.V. where appellant is manufacturing goods on job-work basis. Held: Cost of inputs will not only be the charges on which such goods have been purchased but also includes transportation cost upto job-worker's place - No infirmity in impugned order so appeal dismissed: CESTAT [Para 2, 5]


M/s Rollatainers Ltd Vs CCE (Dated: November 24, 2014)

CE – Classification of packing machines used for packing of various dairy products – Appellants, prior to introduction of the notification 6/2006-CE were classifying the goods under heading 84.22 and it is only upon the introduction of the notification, they switched classification to 84.34 for machines supplied to dairy owners & claimed exemption - Thereafter they continued to adopt two different classifications for the same very product, dependent upon the purchaser of the said goods – Revenue alleging that in view of SC decision in HMT Ltd. 2007-TIOL-132-SC-CX goods correctly classifiable under SH 84.22 & duty payable & confirmed – Appeal to CESTAT. Held: An assessee who is working under Central Excise is expected to be in knowledge of the basic fact that one product cannot be held to be falling under two different headings and cannot be allowed to adopt two different classifications – In view of the insufficient description of the goods in the monthly/quarterly returns, read with the fact of shifting of classification, with the introduction of the notification, leads one to believe, at the prima facie stage that this was done with an intention to claim the non-available benefit of Notification No. 6/06-CE and as a modus operandi – Pre -deposit ordered of 12 lakhs in addition to Rs.3 lakhs paid already: CESTAT [ para 6, 7]


CCE Vs Universal Enterprises (Dated: March 14, 2014)

CE – Assessee undertakes the activity of cutting to shape of plastic films and sheets as per customer's requirements - Merely cutting a sheet or film into required shape or size does not result in bringing into existence any new product – Therefore, the activity undertaken by them did not amount to "manufacture" – no infirmity in impugned order – Revenue's appeal dismissed as devoid of merits: CESTAT [Para 6.1, 7]


Badve Engg Ltd Vs CCE (Dated: November 27, 2014)

CENVAT - Admin Housekeeping services, Crane services, Electrification services, Valuation of plot service etc. - As per Rule 2(l) of CCR, 2004 and Ultratech Cement Ltd . – 2010-TIOL-686-HC-MUM-ST , said services are to be considered as Input Services since being used during course of manufacturing of goods - Appellant is entitled to take CENVAT credit - Appeal allowed: CESTAT [Para 2, 6]


Uflex Ltd Vs CCE & C (Dated: October 24, 2014)

CE - Refund - whether transport charges incurred by appellants in transporting and delivering the goods upto buyers' premises are includible in AV - Sale is on FOR destination basis and destination is buyer's premises - Place of removal, as per definition in section 4 of CEA, 1944 becomes the buyers premises, as that is the place from where excisable goods were sold after clearance from the factory from where such goods were removed - Appellants rightly included the cost of transportation in AV - Duty was correctly paid and hence the impugned refund correctly taken - As the

assessee succeeds on merits, dwelling on the issue of time bar is avoided - Appeals allowed: CESTAT [Para 4, 5, 6]


M/s Prism Cement Ltd Vs CCE (Dated: October 13, 2014)

CE - S.No.1C of Notfn 4/2006-CE - Appellant exported cement in 50 kg. bags to Nepal on payment of duty leviable as per said notfn - Third proviso to entry No.1C shows that where retail sale price of goods is not required to be declared under Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and thus not declared, the duty is to be determined as is in the case of goods cleared in other than packaged form - Even Revenue is not disputing the fact that RSP is not required to be declared on cement bags exported to Nepal and no such MRP was declared either - As per Jaypee Bela Plant appellant entitled to benefit they claimed - Appeal allowed: CESTAT [Para 2, 5, 7]


M/s Tata Chemicals Ltd Vs CCE (Dated: December 22, 2014)

Central Excise – Interest on delayed refund – Refund initially rejected, but allowed by the CESTAT – Interest claim under Section 11BB rejected on the ground that refund was sanctioned within three months from the date of order of the Tribunal and hence no delay.


M/s Honda Motor India Pvt Ltd Vs CCE (Dated: October 15, 2014)

Central Excise – Stay/Dispensation of pre -deposit - Manufacture – Section 2(f) - Repacking, relabeling of automobile spare parts imported – Appellants paid duty on MRP basis by treating the process as amounting to manufacture by availing CEVNAT Credit – Revenue denied credit on the ground that the appellant is not entitled for CENVAT Credit as the manufacturing activity had been completed at the port itself – Held: Prima facie, there is inspection, repacking and relabeling of the container from unit to unit container or bulk to unit container - There is repacking of such goods in container and covered within the definition of "manufacture" under Section 2(f) of the Act, 1944 – Appellant has a strong prima facie case for waiver of pre-deposit – Pre-deposit waived. ( para 9 & 10)


M/s A B Excavators And Earthmovers (P) Ltd Vs CCE (Dated: September 15, 2014)

Central Excise - Stay / Dispensation of pre deposit - Classification - Appellants sought to classify ‘Backhoe' attached to tractor, under CH 84322990 as essentially meant for agricultural/allied purposes while Revenue sought to classify it under CH 84.31 - demands adjudicated, upheld by Commissioner (Appeals) and agitated herein.


M/s Winsome Yarns Ltd Vs CCE & ST (Dated: January 2, 2015)

CE - When two exemption Notifications are available to an assessee , he can always opt for the one which is most beneficial for him and in this regard the Department can not force the assessee to avail a particular exemption Notification -CENVAT credit has been rightly taken on capital goods -no cause for denial of credit by forcing assessee to avail exemption - Appeal allowed: CESTAT



M/s ELAC Marketing Pvt Ltd Vs CCE (Dated: September 15, 2014)

Central Excise – Stay/dispensation of pre deposit – SSI exemption - applicants are engaged in the manufacture of 'Instant Water Heaters and Automatic Storage Water Heaters' cleared under the brand name of 'Elac Excel'; however availed exemption under Notification No. 8/2003-CE (NT) dated 1.3.2003 – Revenue viewed SSI exemption inadmissible, adjudicated demands with interest and penalties on firm and individual, agitated herein.


M/s Dynamatic Technologies Ltd Vs CCE(Dated: December 8, 2014)

Central Excise – suo moto credit - applicants erroneously paid the excise duty on supplementary sales invoices which were subsequently cancelled, and they have availed re -credit of excess duty erroneously paid by them – Revenue viewed the same irregular, and confirmed demand of the same with interest and penalty – Commissioner (Appeals) ordered pre deposit which was not complied with, and dismissed their appeal in an ex parte order; same agitated herein.


M/s Hindustan Zinc Ltd Vs CCE & ST (Dated: January 2, 2015)

CENVAT - Credit is not admissible on inputs that are attributable to the electricity produced in captive power plant and sold to Ajmer Vidyut Vitran Nigam Ltd - Penalty imposable as facts came to knowledge only upon investigation - as for electricity supplied to sister unit - credit not deniable: CESTAT [ para 3, 4]



Rajhans Enterprises Vs CCE, C & ST (Dated: December 1, 2014)

Excise – Remand – Appellant is similarly circumstanced amongst others whose appeals against penalties have been remanded to original authority without insisting for pre-deposit – Following same, impugned order set aside and matter remanded.


M/s Sunfield Ceramic Vs CCE & ST (Dated: November 24, 2014)

Central Excise - Limitation - first appellate authority has not decided the issue on merits but has decided the case on time bar in filing the appeal before him - appellant contends that the order-in-original No. 34/ADC/2013 dated 28.2.2013 passed by the Adjudicating authority was not received by the appellants and was only received on 21.11.2013 and thus appeals were filed in time as held in a catena of rulings cited in defence.


Naachiar Paper Boards Private Ltd Vs CCE (Dated: September 22, 2014)

Central Excise - Stay / dispensation of pre deposit - Exemption - applicants are engaged in the manufacture of "White Duplex Board" and availed benefit of Notification No.4/2006-CE dt. 1.3.2006 (Serial No.91) as amended - Revenue viewed that the appropriate Sl.No. was 90, and that Sec 5A(1A) of the CEA 1944 was contravened.


Mint Port Pvt Ltd Vs CCE & ST (Dated: July 14, 2014)

Central Excise – Condonation of delay - appellant's contention is that as the impugned order dated 30.8.2011 was never received by them and it is only when the Revenue approached them for recovery, they procured the order from the Department on 25.9.2012 and filed the present appeal in December, 2012.


Studio Printall Pvt Ltd Vs CCE (Dated: September 25, 2014)

CE - Notfn . 108/95-CE - clearance of goods to UNICEF - for granting exemption, only a certificate from the UN body to the effect that it is for official use is sufficient and no approval by Government of India is stipulated - it is also immaterial that the certificate in question did not mention exemption from Central Excise duty even though it mentioned sales tax/ octroi etc .- benefit of notfn . 108/95-CE available - matter remanded to Commissioner: CESTAT [ para 4, 5, 6 ]


Paramount Mills Pvt Ltd Vs CCE (Dated: July 10, 2014)

Central Excise - Demand of duty on account of clandestine removal of Denim Fabrics manufactured by the appellants - Matter remanded by the High Court to Tribunal to examine the issue of limitation in the light of documents submitted by the appellants - Held: The veracity of these documents need to be verified along with the original records available with the department so as to arrive at a conclusion whether there is any suppression of facts or extended period can be invoked in this case for demanding duty or whether there is wilful suppression of facts - The original authority should

verify the original documents, and also to take into consideration the directions of the High Court and examine the issue in the light of the above directions and pass fresh orders on the duty confirmed by invoking extended period under proviso to Section 11 AC of the Act - Impugned order in so far as that portion of order confirming the duty demand and imposition of penalty on the appellants is set aside and matter remanded to the Original Authority.


M/s Saradha Terry Products Ltd Vs CCE (Dated: December 2, 2014)

Central Excise – Appellant firm, a 100% EOU, engaged in manufacture of Terry Towels and Home furnishings – Based on DGCEI investigation, demands proposed in respect of (1) non maintenance of separate set of records for manufacture of terry towels cleared to DTA by using 100% indigenous materials for availment of exemption under Notification No. 8/97-CE dated 01.03.1997; (2) not satisfying the condition stipulated under Notification No. 15/2002-CE dated 01.03.2002, that the inputs should have been procured on payment of duty; and (3) Non-utilization of yarn received without payment of duty under CT-3 certificate, in the manufacture of Terry Towel during the period from 01.04.2000 to 31.03.2000, in violation of input output norms prescribed under SION – demands confirmed with interest and penalties on firm and individual, agitated herein.


M/s Sujana Steels Ltd Vs CCE (Dated: July 4, 2014)

Central Excise – Clandestine clearances - appellants were engaged in the manufacture of Iron and Steel products – based on an investigation by DGAE on another Unit (M/s Chamak), demands were proposed on the appellant firm for their involvement in the evasion of the duty by M/s. Chamak – same adjudicated with penalties on the firm including penalty under Rule 209A of the (erstwhile) Central Excise Rules, 1944; wherein adjudicating authority recorded inter alia that the appellant diverted huge quantities of shredded scrap without any bills and documents to M/s.Chamak Holding Ltd., and facilitated to manufacture and clearance of Re-rolled products clandestinely – Firm settled the matter before the Settlement Commission whereas the personal penalty was agitated before Commissioner (Appeals) unsuccessfully, culminating in the instant appeal.


CCE Vs M/s Sri Vari Chemicals (Dated: August 13, 2014)

Central Excise - SSI exemption - respondent is engaged in the manufacture of Textile finishing agents & Soap Oil and availed benefit of SSI Exemption Notification No.1/93-CE, dated 28.02.1993 - officers during the visit of the respondent's factory found that the respondent used the emblem of a man riding on a horse with a word ‘CHEMPON', which is printed on the invoices and also in the containers - Revenue viewed that the said logo is owned by M/s. Chempon Alloys Pvt. Ltd.; that hence respondent is ineligible for SSI benefit; and confirmed demands which were set aside by Commissioner (Appeals) - In the first round of litigation, Revenue's appeal was partially allowed by Tribunal which was agitated before the Madras HC who remanded it for denovo consideration.


M/s Birla Corporation Ltd Vs CCE (Dated: November 26, 2014)

Central Excise - CENVAT Credit on various items of Iron and Steel denied on the ground that the same were used in supporting structures after seeking verification report from the Deputy Commissioner - Deputy Commissioner certified in favour of the assessee - The report of the Dy. Commissioner, which was sought by the Commissioner himself, stands fully ignored by him while passing the impugned order. For the reasons best known to him, the adjudicating authority has completely shut his eyes towards the said report. If the said report of the Dy. Commissioner was not to be taken into consideration by the adjudicating authority, it is not known why the report was called for - Probably the said report has not been referred to by him as the same is in favour of the assessee, to the major extent - Such an action, on the part of the adjudicating authority, cannot be appreciated inasmuch as the same reflects upon the biased premature determination of their adjudication - Impugned order is set aside and matter remanded to decide the issue in the light of report by the Deputy Commissioner. (para 6)


M/s Chemplast Sanmar Ltd Vs LTU (Dated: December 8, 2014)

Central Excise - Stay / dispensation of pre deposit - CENVAT credit - applicants availed credit on capital goods utilized in the railway yard and input services used in the construction of rest rooms in the railway yard situated outside the factory premises; viewed as inadmissible by Revenue - demands adjudged, upheld by Commissioner (Appeals) and agitated herein.


M/s Softesule Pvt Ltd Vs CCE (Dated: September 30, 2014)

CE - Appellant availed credit twice on same Bill of Entry - On being pointed out by Revenue, amount of tax was immediately deposited alongwith interest under intimation to Revenue - No contumacious conduct or fraud on part of appellant - tax and interest in question was paid on 17.12.2009, whereas SCN was issued on 27.4.2011 i.e. after more than 18 months of such deposit and intimation given by appellant - appellant is entitled to benefit under sub-section 2B of Section 11A of CEA, 1944 - penalty set aside - Appeal allowed with consequential relief: CESTAT [Para 3, 5]


Ramani Engineering Vs CCE (Dated: January 6, 2015)

Central Excise – Stay / dispensation of pre deposit - demand made under Section 11D of the Central Excise Act, 1944 is under dispute herein.


M/s Periwal Exports Vs CCE (Dated: October 29, 2014)

Central Excise – Remission of duty – appellant, a 100% EOU engaged in manufacture of handicrafts, cleared a consignment consisting of 72 bags of handicrafts for export; however, the truck met with an accident in which the goods loaded in the truck were totally destroyed in the fire – subsequently, appellant filed an application for remission of duty on the goods in terms of Rule 21 of the Central Excise Rules, 2002 before the proper officer who rejected it on the ground that the loss had occurred after the removal of the goods – Commissioner (Appeals) upheld denial of remission, now agitated herein.



M/s Agmotex Ltd Vs CCE (Dated: October 29, 2014)

CE - Clandestine manufacture and removal - Recovery of parallel invoices - it was undisputed to be belonging to the appellant - Palpable plea of different hand-writing over the documents was not proved - When hand-writing experts known to law opined against the appellant, there was no necessity to rely upon any other expert, who was not recognised by law - It was plain and simple case of deliberate omission of production figures appearing in the slips unrecorded in the statutory record resulting in evasion of duty - Appellant's plea that those were not related to appellant failed to succeed when author of the slips confirmed that the goods appearing therein were being manufactured by appellant and duty thereon not paid - duty correctly confirmed & penalty imposed on appellant proper: CESTAT [ para 8.1 to 8.5]


CCE Vs M/s Shree Chh Shahu SSK Ltd (Dated: October 28, 2014)

CE - Manpower services used for handling, loading and unloading of compost & boiler ash is allowable as CENVAT credit as it is an essential part of manufacture of excisable sugar - no cause for invocation of rule 6 of CCR, 2004 to deny credit - Appeal allowed: CESTAT [para 4]



Chengalrayan Co-Operative Sugar Mills Ltd Vs CCE (Dated: August 4, 2014)

Central Excise - Demand - appellants are manufacturers of sugar and molasses; the latter required to be stored in steel tanks - appellant sought permission to store them in katcha pits and masonary tanks, denied by the jurisdictional officer - notice proposing duty demand on the molasses cleared for storage in katcha pits/masonary tanks was dropped in adjudication; Commissioner (Appeals) confirmed the demand allowing Revenue's appeal; now agitated herein.


M/s Barco Electronics Systems Pvt Ltd Vs CCE & ST (Dated: September 9, 2014)

Central Excise - SAD - Appellant, a 100% EOU, cleared impugned goods to sister unit in DTA without paying SAD - Revenue viewed that since no sales tax was paid on such inter unit transfers, in terms of Notification No. 23/2003-CE SAD was required to be paid thereon - demands adjudicated and penalties imposed on the firm and individuals, agitated herein.


M/s Raptakos Brett And Co Ltd Vs CCE (Dated: November 3, 2014)

CE - Appellant is manufacturer of medicaments and opted for provisional assessment while clearing the goods - They paid excess duty in some cases and has short paid duty in some other cases - Refund of excess duty paid has not been sought by appellant - As per BSL Ltd - 2014-TIOL-1410-CESTAT -DEL adjustment of excess duty paid by appellant against short duty on finalisation of provisional assessment is permissible - impugned order set aside and Appeals allowed: CESTAT [Para 2, 6]


M/s ATC Ltd Vs CCE (Dated: October 24, 2014)

Central Excise – Rate of duty - appellants are engaged in the manufacture of cigarettes of length 69mm – rate enhanced from Rs.809/1000 sticks to Rs.1034/1000 sticks as per Section 141 read with Seventh Schedule to the Finance Act, 2012 – demands adjudged for the period from 17.3.2012 to 27.5.2012 and agitated herein.


M/s Mount Mettur Pharmaceutical Ltd Vs CCE (Dated: November 25, 2014)

Central Excise – Exemption - appellant cleared Intravenous Fluids and claimed the benefit of exemption under Notification No. 3/2001-CE dated 31.3.2001, viewed as inadmissible by Revenue; demands adjudicated and agitated herein.


M/s Sundaram Fasteners Ltd Vs CCE (Dated: December 8, 2014)

Central Excise - Stay / dispensation of pre deposit - CENVAT credit - appellants have availed capital goods credit in excess of 50% and subsequently reversed the same - demand for interest confirmed in adjudication with penalty; Commissioner (Appeals) set aside penalty; interest demand agitated herein.


CCE Vs M/s Padmashri Dr V V Patil SSK Ltd (Dated: November 26, 2014)

CE - Respondent has paid ST on Manpower Recruitment Agency Service and taken suo motu credit - An error was committed by respondent but rectified immediately on pointing out by department - no mala fide intention of respondent to take inadmissible credit - Commissioner (A) has rightly dropped penalty – No infirmity in impugned order so same is upheld: CESTAT [Para 6]


M/s Maharashtra Seamless Ltd Vs CCE (Dated: October 17, 2014)

CE – Rule 2(k) of CCR, 2004 - Appellant is entitled to take CENVAT Credit on welding electrodes which have been used for repairs and maintenance and plant and machinery – Appeals allowed with consequential relief: CESTAT [Para 4, 5]


CCE Vs M/s Owens Brockway (I) Ltd (Dated: July 14, 2014)

Central Excise – Valuation - Respondents were engaged in the manufacture of "Glass Bottles", clearing both printed and unprinted bottles; they received unprinted Glass bottles from their sister unit at Rishikesh and after printing Coke brand of the buyer, cleared the bottles from their premises on payment of central excise duty and availed cenvat credit – Revenue viewed valuation incorrect, proposed demand of duty along with interest and penalty on the Respondents on the ground of non-inclusion of insurance and freight charges and other essential ingredients in the assessable value – demands confirmed, modified by Commissioner (Appeals) and agitated by Revenue herein.


M/s Surya Fine Chemicals Vs CCE (Dated: January 8, 2015)

Central Excise - Classification - Appellant, engaged in manufacture of food colour preparations both as a manufacturer as well as job worker held bonafide belief that the same was classifiable under Chapter 21 while Revenue was claiming classification under Chapter 32 of Central Excise Tariff Act, 1985 - Since appellant believed that the impugned item was not exigible, no registration was taken - However, after insertion of Chapter Note 7 to Chapter 21 to CETA, 1985 with effect from 16th March, 1995, department confirmed demands, agitated herein.


Wheels India Ltd Vs Commissioner, Large Taxpayer Unit (Dated: April 21, 2014)

Central Excise – CENVAT credit - appellants are engaged in the manufacture of wheels and components for Cars, Jeeps Tractors, Earth Movers, Construction Equipments and Air Suspension System - instant appeals were filed against denial of cenvat credit on the input services on "insurance", "garden maintenance" and "clearing and forwarding services".


Foam Techniques Mfg (I) Pvt Ltd Vs CCE (Dated: December 11, 2014)

CENVAT – Duty paid P.U. foam blocks [CH 39.20/39.21] cut into different sizes and shapes and cleared by classifying under CH 39.26 on payment of duty by utilizing CENVAT credit – in the entire proceedings denying the credit on the ground that activity is not ‘manufacture' the lower authorities have not disturbed this classification which itself is an indicator that the original input, P.U. foam block, has undergone change and is now other than the inputs which were procured – having accepted the CE duty paid, appellant is rightfully eligible to avail credit – Order set aside & Appeal allowed: CESTAT [para 7, 8, 11]



M/s Hercules Hoists Ltd Vs CCE (Dated: November 19, 2014)

CENVAT – Rule 2(l) of CCR, 2004 - As per Ultra Tech Cement Ltd. services of erection and installation of machinery at customers' site is part of business - Therefore, appellant is entitled to take CENVAT credit on such services: CESTAT [Para 2, 8]

CE – Appellant cleared goods to 100% EOU against CT-3 certificates which was filed by them before department for claiming exemption under Notfn 22/03-CE - No steps has been taken by revenue to verify whether re-warehousing certificate has been obtained or not to deny the benefit of said Notfn - No allegation of suppression of facts or wilful misstatement - extended period of limitation is not invokable – Appeals allowed: CESTAT [Para 9, 10]


M/s Kroslink Polymers P Ltd Vs CCE (Dated: December 10, 2014)

CE - Valuation - s.4, 4A of CEA, 1944 - Glues & Adhesives falling under Ch.35 of CETA, 1985 - Appellants stand that exemption under Rule 34 of the SWAM Rules, 1977 is not mandatory is not acceptable - as appellants are marking the packages as "Industrial Use", they are exempted from affixing MRP and, therefore, goods have be valued u/s 4 of CEA, 1944 viz. transaction value - Demand upheld and appeal rejected: CESTAT [para 4, 5]



CCE & ST (LTU) Vs Ambuja Cement Ltd (Dated: October 24, 2014)

CE - Assessee engaged in manufacture of cement - Whether waste and scrap of HDPE bags (being damaged in course of packing cement) arising during manufacturing process is required to be cleared on payment of duty in terms of rule 3(5) of CCR, 2004 - Commissioner(A) allowing appeal of assessee - Revenue in appeal before CESTAT. Held: In view of Tribunal decision in Madras Cements Ltd. - 2010-TIOL-1250-CESTAT -MAD no credit is required to be reversed/no duty is required to be paid on clearance of such damaged bags - Revenue's appeal dismissed: CESTAT [Para 3, 6]


Bombay Paints Ltd Vs CCE (Dated: December 4, 2014)

CENVAT – Capital goods - Rule 2(a)(A)(i) of CCR, 2004 - Although Steatite Ceramics, CTH 6804, are capital goods and appellants are entitled to take only 50% credit in first year, they have taken full credit – since they are entitled to balance credit in subsequent year, at the most, interest for intervening period is payable – seeking reversal of credit and imposition of penalty not warranted: CESTAT [para 4]



Impact Metals Ltd Vs CC, CE & ST (Dated: December 12, 2014)

Excise – Cenvat – Credit wrongly availed but not utilized – Imposition of penalty – Sustainability – Change of legal position referencing Rule 8(3)(A) relating to unutilized Cenvat credit not available before original authority while passing order impugned – On facts, matter remanded for fresh consideration according to due process of law. (Para 2)


M/s Premier Automobiles Ltd Vs CCE (Dated: December 10, 2014)

CE Notfn. 162/86-CE - Cars cleared as taxis dealers de-registering vehicles and converting into private vehicles duty demand raised on assessee - there is no liability on the appellant under the notification to ensure continued use of vehicles as taxis appeal allowed: CESTAT [para 7, 8]



Rakhoh Enterprises Vs CCE (Dated: September 25, 2014)

CE - Notfn. 6/2006-CE, 12/2012-CE - Anchor rings and Load Spreading Plates are used in the foundation of wind mill tower and cannot be considered to be part of Wind Operated Electricity Generators - benefit of exemption not available; however in r/o Tower doors since contrary view taken - 2013-TIOL-738-CESTAT-MUM, matter referred to Larger Bench: CESTAT



M/s Hinduja Foundries Ltd Vs CCE (Dated: December 18, 2014)

Central Excise – Stay / dispensation of pre deposit – CENVAT credit – appellant availed input services credit on the basis of debit notes - same viewed as irregular by

Revenue; demands adjudicated, upheld by Commissioner (Appeals) and agitated herein.

Held: Appellant availed the credit on the service tax paid on professional fee and internet telecommunication service - In view of the Tribunal rulings in Jalaram Plastic and Grasim Industires, appellants have made out a prima facie case for waiver of predeposit of entire dues; and same granted - Friends and Friends ruling relied upon by Revenue distinguished. [Para 4]


CCE Vs Amco India Ltd (Dated: October 20, 2014)

CE - Rule 16 of CER, 2002 does not require maintenance of any records - Returned goods have to be treated as inputs and the assessee having shown the issuance of the said inputs from their RG-1 are deemed to have manufactured final product – allegation that 80% of returned aluminium foil is cleared as scrap and CENVAT availed thereon is required to be reversed is without any documentary evidence – Revenue Appeal rejected: CESTAT [ para 6]



Balmer Lawrie Van Leer Ltd Vs CCE (Dated: October 22, 2014)

CE - appellants clearing drums on payment of excise duty on factory value of goods - goods are not sold when cleared from factory but these are transported and stored in Hyderabad in transporter's warehouse - As and when appellant gets order, they direct transporter/warehouse owner to deliver said goods to customer's place - charges for loading, unloading, transportation and warehousing is indicated as Rs.65 per drum - Revenue issued the demand on the ground that the said amounts are required to be added to the assessable value, as the act of sale takes place at the customer's premises and when the goods are transported and warehoused in Hyderabad, no act of sale has taken place – Held : In the facts of the case, act of sale takes place at the premises of customer, therefore, charges includible - No merit in appeal, hence dismissed: CESTAT [Para 4, 4.1, 5]


Aditya Birla Retail Ltd Vs CCE (Dated: November 05, 2014)

CE - Appellants engaged in manufacturing of dutiable as well as exempted products and availing input service credit - Issue of availment of service prior to April 2011 is not in dispute - As per Rule 6(5) of CCR, 2004, during relevant time, appellants are entitled to take CENVAT Credit on input service - It is immaterial whether same is taken later on as held in Circular 943/04/2011-CX - appellants not required to reverse the amount equivalent to 5%/10% of value of exempted goods - Order set aside and appeal allowed: CESTAT [Para 6, 7]


Mahindra And Mahindra Ltd Vs CCE (Dated: October 29, 2014)

CENVAT - Appellant is having CE and ST registration and having more than one manufacturing unit and its head office is registered as an ISD - branch offices have no separate accounting system and their accounts form part of head office accounts, which is registered as an ISD - appellant has rightly availed CEVAT credit in respect of services received at branch office/regional office - invoices are found to be in name of assessee-company, issued to branch offices - payments are accounted at head office - availment of credit and distribution by head office is legal and proper - appeal allowed: CESTAT [Para 2, 6]


M/s Win Enterprises Vs CCE (Dated: November 11, 2014)

Central Excise – Manufacture - carpet mats purchased in roll forms are subjected to cutting into different sizes and shapes; after cutting into required sizes, the edges of the mats are stitches with velvet lining through job workers; and on completio n of the stitching activity, the resultant products, floor mats / car mat emerges - issue involved in this case is whether conversion of Nylon Tufted Carpet Mats in rolled forms into floor mats, car mats would amount to manufacture.


Rishi Iron And Steel Industries Vs CCE & ST ( Dated: August 14, 2014)

Central Excise - Stay / Dispensation of pre deposit - Offence case - appellant, manufacturers of MS Ingots from sponge iron and MS scrap, visited by officers - production slips detected, showing excess over RG-1 figures, apart from physical stock shortage of Ingots vis-à-vis RG-1 figures and credit availed sponge / pig iron vis-à-vis raw material stock register at the time of visit - Shortage of finished goods and clandestine clearances alleged, demands adjudged, upheld by Commissioner (Appeals), and agitated herein.

Held : Duty demand on account of shortage of the finished goods and cenvated raw material is based on the difference between the stock found on the officer's visit to the factory and the balance of finished goods and raw material recorded in the statutory registers - for determining the actual shortage the entries in the raw material register and finished goods register should have been updated - the duty demand on MS Ingots is based on the production slips pertaining to November 2008 and first fortnight of December 2008 - Based on pattern of electricity consumption, prima facie the production recorded in the production slips appears to be the actual production and, as such, the duty demand based on production slips appears to be on stronger footing - amount already deposited is insufficient to safeguard the interests of the Revenue; appellant directed to deposit an amount of Rs.3,00,000/-(Rupees Three Lakhs) within a period of eight weeks [Para 6]


Ramani Plastics Pvt Ltd Vs CCE (Dated: July 4, 2014)

Central Excise – SSI - appellants are engaged in the manufacture of Plastic Hangers, cleared within local market as well as exported - Show Cause Notices were issued proposing demand of duty along with interest and penalty, denying the benefit of the SSI exemption notification – In one case, demands adjudicated; Commissioner (Appeals) remanded it for reconsidering export clearances whereupon demands were dropped, extending SSI benefit – agitated by Revenue before Commissioner (Appeals) who confirmed the demands – In the other case, original authority confirmed the demands, same upheld by Commissioner (Appeals); both cases agitated herein.


M/s Aarti Industries Ltd Vs CCE & ST (Dated: May 23, 2014)

Central Excise – CENVAT credit – Input services credit availed by appellant reversed in Sep 2006 and re-availed suo moto in the same month – Revenue viewed that this was irregular, merited recovery with interest and penalty since the credit was allegedly taken without support of any duty paying documents and without filing any refund claim – demands adjudicated, upheld by Commissioner (Appeals) and agitated herein.


M/s Essel Propack Ltd Vs CCE (Dated: October 29, 2014)

CE - Appellant availed CENVAT Credit of ST paid on 'Business Support Services' provided by CHA, Octroi Agents and Freight Forwarders with respect to export of final products and other materials through Airport/Port - As per Circular 97/8/2007, eligibility for availing Credit of ST paid is dependent upon place of removal, in facts and circumstances, which may even include sale taking place at destination point - Held: Commissioner (A) has erred in facts and circumstances of case, that place of removal is not port, but the factory gate - Place of removal is port and accordingly, impugned order is set aside and appeal allowed: CESTAT [Para 2, 5]


M/s Prosafe International Pvt Ltd Vs CCE & ST (Dated: September 8, 2014)

Central Excise – Stay / Dispensation of pre deposit – CENVAT credit - appellants engaged in the manufacture of safety shoes (dutiable), handling gloves (exempt) and work wears (exempt); availed Cenvat Credit on common input services – Revenue viewed that a n ‘amount' in terms of Rule 6(3) of Cenvat Credit Rules 2004 is reversible on the value of exempted clearances; adjudicated demand for recovery of the same with interest and penalty; agitated herein.


M/s Positive Packaging Industries Ltd Vs CCE (Dated: September 19, 2014)

CE – Appellant manufactured goods and cleared the same for domestic market as well as exported under claim of rebate or undertaking - In sale agreement entered into between appellant and its overseas purchaser, price was to be re-determined on finalization of books of account - Goods were not undervalued at the time of export as according to agreement, tentative price was subjection to variation after end of financial year on finalization of accounts - Accordingly, there is no suppression or any intention to evade duty etc. on part of appellant - SCN is held to be time barred as appellant is not liable to pay duty in case of completed export on raising of supplementary invoice - there can be no demand of any interest for the same when duty itself is not payable - impugned order set aside and appeal allowed: CESTAT [Para 2, 5]


CCE Vs Suraj Texcom (Dated: October 31, 2014)

CE – CENVAT - It has been alleged that respondent has purchased inputs i.e. yarn to tune of Rs. 77,27,761/- - Investigation was not conducted to verify invoices issued by suppliers - It cannot be alleged that invoices issued by suppliers are not cenvatable, in absence of any concrete evidence brought on record by Revenue - Commissioner (A) has considered all aspects and arrived at a decision that for purchase of yarn to tune of Rs. 77,27,761/- respondent is entitled for Cenvat Credit on these inputs which works out to Rs. 5,48,401 - No infirmity in impugned order so same is upheld: CESTAT [Para 4]


Amman Woven Sacks Ltd Vs CCE (Dated: August 19, 2014)

Central Excise – Interest on delayed payment of duty – demand of interest under Section 11A read with Rule 8 of Central Excise Rules, 2002 and penalty under Rule 25 adjudicated, upheld by Commissioner (Appeals) and agitated herein.


M/s Yash Krishni Food Services Ltd Vs CCE (Dated: December 12, 2014)

CE – Brand name ‘Ribbons & Balloons' belonged to M/s. Bharat Cafe Pvt. Ltd. - Fact that M/s. Bharat Cafe Pvt. Ltd were not manufacturer or trader or seller of the said goods at the relevant time is of no consequence – benefit of SSI exemption 8/2003-

CE not available to appellant – extended period of limitation attracted - cum-duty benefit available – duty since paid at full rate during the period 9.11.2006 to 31.03.2007, demand for the said period not maintainable – duty liability to be recomputed by adjudicating authority by extending cum duty benefit – penalty under s.11AC to be reworked – interest payable – appeal disposed of: CESTAT



Jyothy Laboratories Vs CCE (Dated: October 7, 2014)

Central Excise – Stay / dispensation of pre deposit – CENVAT - appellant is a manufacturer of detergent powder and detergent cakes; availed cenvat credit on advertisement service and broadcasting services – Revenue viewed the same inadmissible, confirmed demands, upheld by Commissioner (Appeals), agitated herein.


M/s Larsen And Toubro Ltd Vs CCE (Dated: June 12, 2014)

Central Excise – Valuation - appellants are engaged in the manufacture of fabrication of heavy engineering items viz. iron and steel structures, parts of cement plant machineries, ESP components etc.; entered into a contract with M/s. Mahindra and M/s. Hyundai for fabrication work and assistance in erection, installation and commissioning of the plant at their premises; executed the contracts on job work basis and paid the duty on cost of raw materials and conversion charges on the Ujagar Prints formula - fabrication job done as per the drawings of M/s. Durr, Germany, which were supplied free of cost, hence not included in their assessable value – Revenue viewed that the appellant violated Section 4 of the Central Excise Act, 1944 read with Rule 5 of the Central Excise (Valuation) Rules, 1975; that the appellants are liable to pay differential central excise duty arising due to non-inclusion of pre-engineering drawing and design charges in the assessable value - demands adjudicated and agitated herein.


CCE Vs M/s Petro Carbon Industries Ltd (Dated: September 2, 2014)

Central Excise – Clandestine clearance - Respondent are manufacturers of Calcined Petroleum Coke (CPC) falling under Tariff item heading 2713.12 of the Tariff; raw material for the CPC is Raw Petroleum Coke (RPC) falling under Tariff sub-heading 2713.11 – CE officers visited the Unit and launched an investigation establishing (a) difference between the quantities mentioned in the invoices and the quantity mentioned in the corresponding weighment slips; (b) consumption of jute and plastic bags during the period of dispute was much more than the bags which would have

been consumed on the basis of the clearances recorded in the RG-1; (c) There were some GRs showing dispatch of CPC in respect of which they were no GP -1s; (d) goods cleared to sister unit for manufacturing carbon paste was CPC and not RPC as per respondent's records; (e) in respect of credit availed RPC, Rule 9A (3A) of the Central Excise Rules, 1944 was violated, resulting in short payment of duty – demands with interest and penalties on firm and individuals under proviso to Section 11A (1) of the Central Excise Act, 1944, Rule 173Q (1) (d) and Rule 209A of the Central Excise Rules, 1944 adjudged and agitated before Tribunal, who remanded the matter for denovo adjudication whereupon the original demands were modified to the effect that demands related to (a), (b), (c) and (e) were dropped as also penalties on individuals; now agitated by Revenue herein.


Manidhari Stainless Wire Pvt Ltd Vs CC, CE & ST (Dated: September 8, 2014)

Excise – Natural Justice – Speaking Order – Wrong utilization of inputs and Cenvat credit – Omission to give specific documents to defend – Commissioner directed the Additional Director DGCEI office to verify and confirm specific documents during investigation relied upon by Revenue and not supplied to appellant – Commissioner's adjudication order thereafter without giving an opportunity to the appellant to go through the process of verification with DGCEI wholly unjustified – Matter remanded – Commissioner directed to pass reasoned order. (Para 7, 8)


M/s Hindalco Industries Ltd Vs CCE (Dated: November 21, 2014)

CENVAT - Applicant availed CENVAT Credit on the basis of invoices issued by M/s. Aditya Birla Management Corpn. Pvt. Ltd. (M/s. ABMCPL) relating to the input services received viz. Business Support Service -Revenue alleges that since M/s. ABMCPL have been distributing the expenditures borne by them on behalf of the applicant they ought to have been registered as an ISD -credit denied of Rs.1.99 crores -appeal to CESTAT.


Privi Organics Ltd Vs CCE (Dated: March 3, 2014)

CE - Limitation - appellant undertook physical export by availing benefit of Notification No. 23/2003-CE, where they effected the DTA clearances at concessional rate of duty in excess of the 50% of the FOB value - department contends that the appellant should have discharged full duty and not concessional duty on the excess clearances as they exceeded 50% limit HELD : If the clearances exceed the limit, no doubt, the appellant can clear the goods into DTA but duty liability has to be discharged at the full rate of duty - In the absence of suppression or willful mis -statement of facts, the demand is hit by time bar - prima facie case made out for grant of stay: CESTAT [Para 6.1]


M/s Essel Propack Ltd Vs CCE (Dated: October 29, 2014)

CE – Appellant availed CENVAT Credit of ST paid on various input services – Revenue observed that appellant is availing Credit in respect of ST paid on expenses for various services, which were not considered as input service for appellant like, insurance for transit (report) service, transport insurance being beyond place of removal, brokerage charges, subscription fees, Credit card services etc. - under Rule 2(l) of CCR, 2004 input includes not only expenses directly related but also indirectly related to business of manufacturing - all services in question are input services for appellant manufacturer - Matter decided on merit in favour of appellant - question of limitation left undecided - impugned order set aside and appeal allowed: CESTAT [Para 2, 5]


M/s Dewas Fabrics Ltd Vs CCE (Dated: September 19, 2014)

CE -Goods cleared from factory but not exported - Fraudulent records created to show export - For recovery of duty on goods which were cleared without payment of duty but not exported, there is no time-bar as such clearances are covered by the bond which was executed -Duty demand upheld - Penalty correctly imposed - Appeals rejected: CESTAT



M/s Pushpak Steel Industries Pvt Ltd Vs CCE (Dated: September 19, 2014)

CENVAT - Appellant had purchased an Electric Motor on payment of CE duty - Credit availed and subsequently utilized for payment of duty on their finished goods - Electric Motor was cleared after use - In Raghav Alloys Ltd. - 2010-TIOL-881-HC -P&H-CX it is held that removal of capital goods pursuant to use is not 'Removal as such' and duty paid on transaction value at the time of removal, prior to 13.11.2007, is correct - facts are covered by the ruling & in favour of appellant - SCN dated 21.04.2009 is time-barred, as transaction had taken place in November, 2005 - order set aside and appeal allowed: CESTAT [Para 2, 3.4, 5]


M/s Indo Rama Synthetics (I) Ltd Vs CCE (Dated: October 22, 2014)

CE – S.4 of CEA, 1944 - Valuation - Appellant is a manufacturer of polyester yarn - Total amount of freight and insurance charges recovered by appellant was more than the freight incurred/amount paid by them as premium to insurance companies – Following the decision in case of Baroda Electric Meters ltd. - 2002-TIOL-96-SC-CX , it is held that differential amount not includible in AV since duty of excise is on manufacture and not on profit made by dealer on transportation - Appeal allowed: CESTAT [Para 2, 5]


Kaizen Organics Pvt Ltd Vs CCE & ST (Dated: October 30, 2014)

CE - Appellant availed CENVAT credit of the duty paid on inputs supplied by M/s Koolmint Manufacturing Company - Revenue alleging that since M/s Koolmit did not have the necessary infrastructure for manufacture of the inputs, the credit availed by applicant is inadmissible; that duty paid by M/s Koolmit is considered as deposit u/s 11D of CEA, 1944 and not duty - appeal to CESTAT.


M/s 3M India Ltd Vs CCE (Dated: October 21, 2014)

Excise - Cenvat - Large Tax Payer Unit - Imposition of interest and penalty on credit wrongly availed - Appellant availed excess credit as well as short credit availment apparently due to clerical error and reversed as soon as omission pointed out - Bona fide and genuine mistake occurred - On facts held, not a fit case warranting imposing penalty - However demand for Cenvat credit with interest upheld - Appeal accordingly disposed of. (Para 3)


M/s Adani Energy Ltd Vs CST (Dated: September 30, 2014)

CE/ST – Extension of stay - CESTAT has the powers to extend the stay beyond the period of 365 days under the provisions of Section 35C (2A) of the Central Excise Act, 1944 - stay was granted to the appellant on 26/08/2009 - After granting of stay to the appellant, the appeal was never listed for final hearing by Registry due to heavy work load - there is no fault of the appellant in seeking extension of the stay already granted - Request made by the appellant is genuine and extension of stay is granted for a further period of 180 days: CESTAT [ para 2, 3, 6]


LA Mansion Granites Ltd Vs CCE,C & ST (Dated: November 17, 2014)

Excise – Exportation of goods – Onus lies on assessee to substantiate proof of exports in support of duty exemption – Due to unavoidable circumstances of closure of business and take over of industry by financier, photocopies of documents duly endorsed by the Customs authorities at the port of export against certain consignments submitted – Duty cast on jurisdictional authority at de novo adjudication proceedings to locate original export documents available either in the Customs House (CH) or in the jurisdictional Central Excise office to ascertain actual exportation of goods – Rejection ex-facie on ground of possibility of manipulation without verifying records, deprecated – Matter remanded to verify and ascertain actual exportation from documents submitted vis -à-vis original documents with CH – With regards to claim of exportation of other consignments in question, Custom's endorsed ARE1s and supporting Bills of Lading not submitted at de novo adjudication proceedings as such appeal against said export consignments dismissed directing appellant to pay the duty with interest. (Para 9, 10)


M/s Arun Plasto Moulders (India) Pvt Ltd Vs CCE (Dated: August 20, 2014)

Central Excise – CENVAT credit - appellants are engaged in the manufacture of Injection Moulding components - dispute relates to denial of credit on HIPS and GPPS and demand along with interest and penalty; first stage appeal dismissed for non compliance with stay order, agitated herein.


John Deere Equipment Pvt Ltd Vs CCE (Dated: December 17, 2014)

CE - S.35A(3) of CEA, 1944 - Commissioner(A) could not have enhanced penalty without issuance of any show-cause notice - Matter remanded: CESTAT [para 4]



M/s English Indian Clay Ltd Vs CCE (Dated: October 17, 2014)

CE - Adjudicating authority's observation that any physical change like change in brightness/whiteness will result in manufacture of "modified starch" covered under Ch. Heading 35.05 is devoid of any basis - conjectures cannot be basis for deciding classification - Order set aside & appeal allowed: CESTAT [para 11, 12, 13, 14]



M/s Elite Pharma Pvt Ltd Vs CCE (Dated: September 30, 2014)

CE - Extension of stay - CESTAT has the powers to extend the stay beyond the period of 365 days under the provisions of Section 35C (2A) of the Central Excise Act, 1944 - stay was granted to the appellant on 3/11/2008 - After granting of stay to the appellant the appeal was never listed for final hearing by Registry due to heavy work load - there is no fault of the appellant in seeking extension of the stay already granted - Request made by the appellant is genuine and extension of stay is granted for a further period of 180 days: CESTAT [ para 2, 3, 6]


Khalik Ahmed Vs CCE & ST (Dated: November 18, 2014)

CE - Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - illegal manufacture and clandestine clearance of the Pan Masala/ Gutkha under the brand name of Suhana – Duty demand and penalty of Rs.1 crore each - appellant submitting that premises given on rent to Shri Vijay Mishra - statement of two workers mentioning that the packing machine found installed was belonging to the appellant and both the workers were locked in by the appellant from 7 am to 8 pm and were made to work on the said packing machine – statement retracted subsequently and when summoned again they changed their statement and admitted having worked for the appellant – in the matter of the plea of the appellant of premises having been leased out to Shri Vijay Mishra, AR submitted that in spite of the efforts made by the Revenue to locate Shri Vijay Mishra at the address given by the appellant, they have not been able to do so and the investigations carried out clearly establish that there was no Vijay Mishra residing at the given address.


M/s Bhansali Engg Polymers Ltd Vs CCE & ST (Dated: October 27, 2014)

CE - Refund - Appellant clearing goods on stock transfer basis to their second unit - When the assessments were finalized, the same resulted in refund, as the duty finally assessed was less than the duty paid on provisional basis - while the Satnoor unit of appellant filed these refund claims, the Abu Road unit reversed the CENVAT credit of the duty whose refund was sought by the Satnoor unit, as initially when the Satnoor unit had cleared the HRG powder and E-SAN powder to Abu Road unit on payment of duty, the Abu road had taken its CENVAT credit - Appellant filed refund claims which were a llowed by Asst. Commr. by also holding that unjust enrichment was not involved - Commissioner(A) holding that claims are hit by bar of unjust enrichment - appeal to CESTAT.


Hindustan Zinc Ltd Vs CCE (Dated: July 16, 2014)

Central Excise - Whether adjustment of excess payment against short payment has to be allowed on finalisation of Provisional assessment - Matter goes to Third Member: Whether inter se adjustment of duty short paid and duty excess paid during the period of provisional assessment is permitted at the time of finalisation of assessment in terms of Rule 7 of the Central Excise Rules when the appellants are not entitled to refund of duty excess paid. Whether interest is chargeable on the duty short paid in terms of sub-rule (4) of Rule 7 of Central Excise Rules regardless of the duty excess paid during different segment of the period involved when the appellants are not entitled to refund of duty so excess paid.



M/s R B Steel Services Vs CCE & ST (Dated: September 30, 2014)

CENVAT - If the department levies and collects the Central Excise duty on the goods removed from the factory, they cannot claim, for the purpose of allowing CENVAT credit, that the process of manufacture had not taken place – Credit rightly availed – Appeals allowed: CESTAT [ para 4, 5]



M/s I J Steels And Castings Pvt Ltd Vs CCE (Dated: October 28, 2014)

CE - Penalty - Since the entire disputed amount of CENVAT credit had been paid during investigation and much before the adjudication, the adjudicating authority ought to have given the option to pay lower penalty u/s 11AC of CEA, 1944: CESTAT [ para 6]


M/s Bhavani Enterprises Vs CCE (Dated: September 16, 2014)

Central Excise - Stay / dispensation of pre deposit - Job work valuation - applicants are engaged in the manufacture of HDPE Bottles on job work for Marico Industries who supplied the HDPE granules - goods cleared on payment of duty assessed under Ujagar Prints formula whereas Revenue viewed that it should be assessed under Rule

8 of the CE Valuation Rules 2000 - demands confirmed, modified by Commissioner (Appeals) and agitated herein.


M/s Kamakhya Steels Pvt Ltd Vs CCE (Dated: November 18, 2014)

CE - Expressing unhappiness in a marriage can never be taken to be tantamount to opting for divorce - after having opted in for paying duty under Rules 96ZO( 3) on annual capacity of production unless they opted out of the compounded levy scheme they could not have paid duty on actual production basis u/s 3A (4) of the CEA, 1944: CESTAT [ para 6, 7, 8, 9]



M/s Jagatjit Industries Ltd Vs CCE (Dated: November 7, 2014)

CENVAT - Appellant taking credit of differential duty paid under cover of supplementary invoice by principal manufacturer after finalization of provisional assessment - since this is not a case of any suppressed production or malafide intent to evade payment of duty, invocation of Rule 7(1)(b) of CCR to deny credit is improper - Appeal allowed: CESTAT [ para 5, 7, 8]



Ace Glass Containers Vs CCE (Dated: November 12, 2014)

CE - Appellant is engaged in activity of printing on Glass Bottles - Levy of duty on the activity of printing on glass bottles came into effect from 03.08.1998 - Final products were cleared from appellants' factory prior to 03.08.1998 to their godown – Said goods have been cleared from their godown on payment of duty which was not required to be paid by appellants - Relying on decision in case of Ajinkya Enterprises - 2012-TIOL-578-HC-MUM-CX it is viewed that as duty has been paid by appellants on clearance of final products which was not required to pay, the same amounts to reversal of CENVAT Credit which is sought to be denied by way of impugned order - demand of duty is not sustainable - Accordingly, levy of interest and penalties are also not sustainable - appeals allowed: CESTAT [Para 2, 7]


Bharat Electronics Ltd Vs CCE, C & ST (Dated: December 1, 2014)

Central Excise – Cenvat – Cenvat credit on outdoor catering services passed on by head office and availed by intermediary – Whether or not used in relation to manufacture of goods– Issue is debatable – Needs detailed consideration.

Central Excise – Cenvat – Medi-Claim insurance services – Denied on ground that it is provided to retired employees as such having no nexus with manufacturing – Issue is also debatable – Prima-facie case in favour of appellant – Pre-deposit waived. (Para 3)


M/s GNFC Ltd Vs CCE (Dated: October 16, 2014)

CE – Appellant is manufacturer of chemicals and fertilizers - Chemicals are chargeable to duty and fertilizers prior to 1.3.2011 were exempted – For said manufacture catalyst and catchment's gauze of precious metal were required which after certain period of use are required to be recharged - On 1.3.2011, Government withdrew exemption on articles of precious metal and thus duty became chargeable on catalyst and catchment's gauze - M/s Hindustan Platinum Ltd . later on paid the duty and recovered from appellant – Appellant filing refund claim. Held: No duty is chargeable on goods in view of retrospective amendment made by FA, 2014 and provisions contained thereunder will entitle the refund of duty already paid if filed within six months - details of FA, 2014 was not available when the case was adjudicated by original authority so matter remanded back to original authority: CESTAT [Para 2, 4, 5]


M/s Bhilosa Industries Pvt Ltd Vs CCE (Dated: October 27, 2014)

Central Excise - Exemption - Notification No. 30/2014-CE - Exemption to All filament yarns procured from outside and subjected to any process by a manufacturer who does not have the facilities in his factory (including plant and equipment) for manufacture of filament yarns of chapter 54. - Meaning of the expression 'his factory' : Under the Central Excise Taxation duty of Central Excise is levied on the 'act of manufacture' as defined in Section 2(f) of the Central Excise Act 1944 and the person who carries out the 'act of manufacture' is the manufacturer. A 'manufacturer' who is liable to pay duty becomes an 'assessee' by virtue of Rule -2(c) and has to take out a Registration as per the provisions of Rule 9 of the Central Excise Rules 2002. From the above basic elements of Central Excise law a manufacturer is the person wh o carries out the act of manufacture. (para 9.4)



Hinduja Foundries Ltd Vs CCE (Dated: September 1, 2014)

Central Excise – Stay / dispensation of pre deposit – Demand - appellants are manufacturers of Iron & Aluminium Castings – Demands on Black Sand (Dross) cleared without duty confirmed with interest and penalty, upheld by Commissioner (Appeals) on the ground that the goods are distinctly classifiable under sub heading 2619 00 90 of the CETA and it is a distinct commodity with the different usage and commercially marketable; agitated herein.


M/s Cipla Ltd Vs CCE (Dated: October 17, 2014)

CENVAT – Cenvatted capital goods cleared after putting them to use – appellant paying duty on transaction value – Revenue views that goods were removed as such, so appellant is required to reverse CENVAT Credit. Held: As per decision of Bombay High Court in Cummins India Ltd., issue is no more res integra - appellant has rightly paid the duty on transaction value – Appeal allowed: CESTAT [Para 2, 4]


M/s Monomer Chemical Industries Ltd Vs CCE (Dated: October 17, 2014)

CE – s.6 of CEA, 1944, rule 9 of CER, 2002 - Premises obtained on lease from MIDC - Registration cannot be denied on the ground that earlier occupant of the premises had dues pending against them – Appeal allowed with consequential relief: CESTAT [para 7]



M/s Uttam Galva Steels Ltd Vs CCE (Dated: November 3, 2014)

CENVAT – Admissibility of input service credit on Outward Transportation Service during February 2005 to March 2006.

Held: Appellant is entitled to get Credit on Outward Transportation Service prior to 01.04.2008 in the light of LB decision in ABB Ltd - 2009-TIOL-830-CESTAT-BANG-LB - impugned order set aside and appeal allowed : CESTAT [Para 5, 6]


Andhra Cements Ltd Vs CCE, C & ST (Dated: July 25, 2014)

Excise - Sick Company - Cenvat Credit irregularly availed - Interest and penalty sustainability - Availment of Cenvat credit in the subsequent month is a mere procedural violation - Once the credit is availed and entered in the books, it can be used for payment of duty on the output and there is no one to one correlation required -No provision prohibiting availment of Cenvat credit during default period in question - More over default was not beyond one month - Utilization of Cenvat credit during the next month for payment of duty relating to the previous month thus cannot be faulted with - Attempt of Revenue that entire amount has to be paid in cash and till the payment was made, interest is liable to be paid held not correct - As appellants have not availed the benefit extended by BIFR to pay Principal amount in installments and discharged entire amount crystallized including interest, interest is set aside and penalty upheld but reduced from 10 lakhs to 1 lakh. (Para 13, 14)