cestat ruling - taxindiaonline.comtaxindiaonline.com/rc2/pdfdocs/headnotes_index/index_may... ·...

CESTAT RULING

2010-TIOL-890-CESTAT-DEL

M/s Bhansali Engg Polymers Ltd Vs CCE, Jaipur (Dated: March 2, 2010)

Deemed violation of rule 8(3A) of the CER, 2002 – voluntary payment of short paid Education Cess with interest – no mens rea - CCE ordering for appropriation of duty paid through CENVAT as being made through PLA - sound case for invoking section 11A(2B) of the CEA, 1944 – Penalty and interest set aside.

Also see analysis of the Order

2010-TIOL-889-CESTAT-MAD

CCE, Tirunelveli Vs M/s Bell Pins Pvt Ltd (Dated: March 1, 2010)

Central Excise – Small Scale exemption under Notification 1/93 CE – usage of Brand name of another person – since the case law relied on by the lower authorities is no longer represent correct legal position in view of the reversal of the same by the Supreme Court, revenue's appeal is allowed by way of remand.


CCE, Coimbatore Vs M/s Jagannath Textiles Co Ltd (Dated: February 10, 2010)

Central Excise - Fresh evidence before the Commissioner (Appeals) - The Commissioner (Appeals) ought not to have decided the case on the basis of documents which were produced before him for the first time in appeal - the instance case is not covered under Rule 5 of the Central Excise (Appeals) Rules - matter remanded to the original authority.

2010-TIOL-886-CESTAT-AHM

M/s Madhav Steels Vs CCE, Bhavnagar (Dated: January 25, 2010)

Central Excise – Mandatory penalty under erstwhile Rule 96ZQ(5) under compounded levy scheme – Vires of Rule 96ZQ(5) are pending before High Court – Matter remanded to original Adjudicating Authority with a direction to decide upon the question of imposition of penalty and quantum thereof, after declaration of law by High court


M/s Tulsi Intermediates Vs CCE, Vadodara (Dated: January 1, 2010)

Central Excise – Illicit clearances – During the visit of the officers delivery challans showing particulars of illicit clearance of goods were recovered – Director of the company admitted clandestine removal and did not retracted his statement – Duty and interest paid on the same day – Penalty imposed by adjudicating authority – Appellant's plea that duty was forcibly recovered – Held: Once, department recorded statement of the director admitting clandestine removal and recovery of delivery challans, the burden of proving contrary shifted to the appellants, which has not been discharged at any stage – Appellants not made out a case in their favour.

Penalty on Director – Appellant's plea that the director was not physically dealing with the goods and therefore no penalty could have been imposed on him under Rule 26 of Central Excise Rules, 2002 – Another plea that once penalty had been imposed on the company, there is no need to impose penalty on the director - Held: Director was present at the time of recovery of documents and had clearly admitted his role, penalty is definitely imposable on him.


M/s Meghmani Industries Ltd Vs CCE, Ahmedabad (Dated: January 5, 2010)

Central Excise – 100% EOU – Clearance of goods into DTA at concessional rate of duty under Notification No. 23/2003-CE – Goods cleared into DTA should be similar to goods exported – Department has adopted the definition of ‘similar goods' as given under the Customs Valuation Rules - Issue involved appears to be covered by the decisions cited by the advocate - Definition available in the Customs Act cannot be used in respect of Notification issued under another enactment. In such cases common parlance or dictionary meaning has to be applied. - This issue has not been dealt with properly by Commissioner – Matter remanded.

Limitation – Appellants were submitting quarterly returns showing exemption availed by them - Copies of invoices also submitted, though statutorily not required – Extended period of limitation not invokable – Demand if upheld would be limited to one year.


M/s Krishna Metal Corpn Vs CCE, Ahmedabad (Dated: January 29, 2010)

Central Excise – Penalty on registered dealer for issuing invoices without supplying the goods to the person who has availed credit – Department has properly corroborated the statements and documentary evidences – Merely because Bilties have been produced, it cannot be said that the goods have been transported especially in view of evidence of stores receipt department – Appellant had received the goods but by not dispatching the same under cover of proper central excise invoice, they had rendered

the goods liable to confiscation – Penalty under Rule 26 on proprietorship firm can be imposed in as much as proprietor and proprietorship firm are not separate entities - Request for reduction in penalty declined in absence of production of comparative figures of penalty vis-à-vis cenvat credit passed on by various suppliers – Penalty upheld


M/s Minimax Industries Vs CCE, Delhi-II (Dated: January 12, 2010)

Central Excise – SSI exemption – Use of ‘Brand name' or ‘trade name' of another person – Appellant used logo, which was also used by another manufacturer - Department not able to establish that the logo had acquired as ‘trade name' or ‘brand name' by another person - Law Ministry opined that units which are using trade name or brand name, which does not belong to any person, were eligible for exemption – Board's circular clearly indicates that only on acquisition of the goodwill in relation to the particular logo or mark, it would acquire the status of being a brand name or trade name within the meaning of said expression used in the said notifications and not otherwise - Demand quashed


Shri Vijay Engg & Metal Works And Others Vs CCE, Delhi (Dated: January 22, 2010)

Central Excise – Clandestine removal – Department's case: Shortage of stock of inputs noticed as compared to balance sheet – As the appellant had not cleared any inputs as such, it is alleged that inputs had been used in manufacture of finished goods, which have been cleared illicitly. Appellants' arguments: (i) No liability can be fastened on the basis of balance sheet figures (ii) Department has not made inquiry from buyers and suppliers (iii) There is no positive evidence to substantiate clandestine clearances. CESTAT observes: Appellant admittedly cleared only finish goods and not inputs, therefore, unexplained shortage of inputs would imply clandestine clearance of finish goods (ii) There is evidence of unaccounted receipt of raw materials (iii) As the RG 23A Pt.I figures are not reliable, Department is justified in determining balance on the basis of audited balance sheet. Held: When huge quantities of rough forgings were being purchased without accounted in the records, it is reasonable to infer that the finished goods had also been cleared clandestinely.


M/s Sundeep Electrodes Pvt Ltd Vs CCE, Meerut-II (Dated: January 7, 2010)

Central Excise – Modvat/Cenvat credit – Transitional provisions for SSI manufacturers - Manufacturer opting for SSI exemption under Notification No. 8/2003-CE from 1st April 2006 – Department demanded amount equal to Cenvat credit taken on inputs lying in stock as such, inputs in process and inputs contained in finished goods products lying in stock as on 1st April 2006 – Appellant's contention that credit attributable to inputs is required to be reversed only to the extent Cenvat credit balance available and if there is no credit balance available, no amount is required to

be paid in cash – Assessee's views supported in the case of CNC Commercial – 2007-TIOL-797-HC-KERALA-CX - Supreme Court in Dai Ichi Karkaria - ( 2002-TIOL-79-SC-CX ) observed that there is no provision in the rules which provides for reversal of credit, except where it has been illegally or irregularly taken – CESTAT observes: Interpretation sought by appellant is not supported by the language of Rule 11(2) of Cenvat Credit Rules, 2004 - Input duty credit, even if initially taken validly, would no longer remain validly taken credit, if it is required to be reversed in accordance with the provisions of Rules and not so reversed – Supreme Court in the case of GNFC - 2009-TIOL-96-SC-CX held that if cenvated inputs are used in manufacture of exempted goods, the cenvat credit, even though validly taken, will have to be reversed as per Rule 6(1) - File to be placed to President for considering reference to the Division Bench


M/s Shimla Food And Flavours Vs CCE, Lucknow (Dated: January 15, 2010)

Central Excise – Illicit manufacture and clearance of Gutka – Shortage noticed at the time of visit of the factory by officers – Goods seized from a pickup van near the factory premises without having any invoice – Documents showing unaccounted purchase of Suprai and unaccounted sale of Gutka, recovered - Production capacity of pouch packing machines found to be much more than what was declared to department – Prima facie the Challans/GRs issued by the transporter pertaining to the goods dispatched by the sole selling agent, which obviously have been received from the manufacturer appellants – Pre-deposit equal to duty ordered


CCE, Raipur Vs M/s Orissa Concrete & Allied Industries Ltd (Dated: January 22, 2010)

Central Excise – Confiscation of excess stock – Respondent's plea that excess stock were cut pieces of the ingots which were going to be recycled and for this reason, the same had not been entered in RG-1 register – The stock should be accounted for as scrap – Confiscation and penalty under Rule 25(1)(b) would be attracted for mere non-accountal of goods and the intention to evade payment of duty is not required to be proved – The last judgment of Larger Bench in the case of Modison Ltd. - ( 2006-TIOL-1351-CESTAT-MUM-LB ) followed - Assistant Commissioner's order for confiscation restored

Penalty under Section 11AC – Demand of duty on shortage confirmed and penalty imposed by the Assistant Commissioner – Goods were cleared for captive consumption but entry was not made in RG-1 register – Department has not produced any evidence that goods have been removed clandestinely – Just because respondent had paid duty on shortage, it cannot be concluded that the same bad been cleared clandestinely – No evidence to invoke Section 11AC – Commissioner (Appeal)'s order setting aside penalty upheld


M/s K S Industries Vs CCE, Ludhiana (Dated: January 4, 2010)

Pre-deposit – Financial hardship – The burden to discharge undue hardship, obviously, lies on the applicants and such burden has to be discharged by revealing necessary factual data – Merely because the party states that he has closed his original business and has been surviving presently on the meager income from a small shop which runs from his residence, that itself will not be sufficient to arrive at a finding about undue hardship –Applicants have not disclosed any material about financial capacity – No ground for modification of stay order

Pre-deposit of penalty on partner – Once the penalty is directed to be deposited by the assessee, there is no ground for direction to deposit the penalty by its partner – Pre-deposit of penalty imposed on partner waived – Stay order modified only to that extent


M/s Aries Dyechem Industries Vs CCE, Ahmedabad (Dated: January 7, 2010)

Central Excise – CENVAT Credit on the inputs sent to job worker under rule 4(5) of the CENVAT Credit Rules, 2004 – the job worker paid full duty on the processed goods returned and the appellants availed CENVAT Credit of the same – Revenue alleges dual benefit – There is no double benefit of CENVAT Credit as alleged by the revenue – rules do not bar the job worker from paying duty and the job worker cannot be compelled to avail exemption – Also the department is not able to show that the inputs have been diverted or not received back.


India Metal & Alloys Vs CCE, Coimbatore (Dated: February 22, 2010)

Central Excise – Exemption under Notification 198/87 CE dated 28.8.87 – Exemption is admissible to the Amber Charkhas manufactured as per the specifications of KVIC and supplied to KVIC – Denial of benefit is not legally sustainable.

2010-TIOL-864-CESTAT-BANG

M/s Hyderabad Ammonia & Chemicals Pvt Ltd Vs CCE, Hyderabad (Dated: March 1, 2010) Central Excise – Procurement of duty paid ammonia in bulk and transferring them into cylinders/storage tanks whether amounts to manufacture or not – Pre-deposit of Rs. 10 lakhs ordered


M/s Jindal Photo Ltd Vs CCE, Chandigarh (Dated: March 29, 2010)

Central Excise – Order of original authority shows rejection of refund claim without any intention to recover amount held as not refundable – Revenue unable to explain whether any non-refundable amount was proposed for recovery as demand, in the absence of proposal for recovery of rejected refund amount – Orders of both lower authorities set aside and matter remanded to adjudicating authority to resolve the dispute afresh by following principles of natural justice


CCE, Hyderabad Vs M/s Hyquip Systems Pvt Ltd (Dated: December 16, 2009)

Central Excise – Conveyors, bucket elevators not eligible for exemption notification 6/2000-CE – Matter remanded for re-computation of assessable value treating invoice value as cum-duty price


M/s Shri Ambika Sugars Ltd Vs CCE, Trichy (Dated: February 19, 2010)

Central Excise – CENVAT Credit on inputs used in generation of electricity, part of which was sold to TNEB – matter remanded to re-quantify the inadmissible credit in view of the ratio decided by the Supreme Court – penalty set aside.


CCE, Hyderabad Vs M/s Maya & Harmony Inn (Dated: December 9, 2009)

Central Excise – Manufacture – Fabrication of studio set properties, artistic furniture, in situ furniture etc already held as non-excisable in Tribunal's remand order and remand direction was to the limited extent of determining duty liability on furniture and parts thereof and who should be held as manufacturer – Commissioner's remand order setting aside demand notice on limitation valid and reasonable – Department's appeal memorandum does not contain anything contrary except challenging assessees plea of bonafide belief of activities undertaken by them would not amount to manufacture – No infirmity in impugned order

2010-TIOL-857-CESTAT-MUM

M/s Hindustan Petroleum Corporation Ltd Vs CCE, Guntur (Dated: May 20, 2010) Whether imported, customs duty-paid goods falling in any of the Schedules to the CETA would come within the ambit of the expression “excisable goods” used in the text of sub-section (1) of Section 11D of the Central Excise Act – matter referred to Larger Bench


2010-TIOL-856-CESTAT-KOL

M/s Hindusthan Cocacola Beverages Pvt Ltd Vs CCE, Patna (Dated: March 3, 2010) Central Excise – Special Excise Duty can be paid from Basic Excise Duty A/c as there is no prohibition for such payment in Central Excise Act or Rules – Impugned order of Commissioner set aside


Elegant Chemicals Enterprises Pvt Ltd Vs CCE, Hyderabad (Dated: February 22, 2010) Central Excise – Valuation of goods manufactured on job worker basis – Whether provisions of Rule 10A of Central Excise Valuation Rules applicable or not – Pre-deposit of Rs. 65 lakhs


M/s Berger Paints India Ltd Vs CCE, Kolkata (Dated: February 8, 2010)

Central Excise – CENVAT Credit – Stay/Dispensation of Pre-deposit - there is no requirement for Inpust service distributor to take registration prior to 16.06.2005 – prima facie case for waiver of pre-deposit.


Mr Dhiren Gandhi Vs CCE, Bangalore (Dated: January 28, 2010)

Central Excise – Demand – Liability of deceased father's proprietary concern cannot be fastened on son – SCN issued in 2007 for liability arising during 1999-2001, beyond the period of limitation of five years – Prima facie case for waiver of pre-deposit – Stay granted


CCE, Hyderabad Vs Dr Reddy Laboratories Ltd (Dated: January 27, 2010)

Central Excise – 100% EOU – Usage of raw materials procured duty free for R & D purposes – For manufacture and export of pharmaceutical products certain amount of R & D required to meet stringent requirements of certifying authorities – Assessee fulfilled export obligations and achieved net NFEP/EP – No infirmity in Commissioner's order warranting interference


Shri C V R Dikshitulu Vs CCE, Guntur (Dated: January 11, 2010)

Central Excise – Against a duty demand of Rs. 27 lakhs from manufacturer, personal penalty of Rs. 50 lakhs was imposed under Rule 209A on General Manager in remand proceedings – Adjudicating authority imposed a penalty of only Rs. 1 lakh in first round of litigation – Appellant not in service during a major part of period covered under demand notice – Prima facie case for full waiver of pre-deposit – Stay granted


Hindustan Coca Cola Beverages Pvt Ltd Vs CCE, Visakhapatnam (Dated: February 19, 2010) Central Excise – Clearance of plastic crates to sister unit – Onus on Revenue to prove whether assessee availed CENVAT credit – Appellants claim of receipt of disputed plastic crates prior to 01.04.2000 not rebutted – Impugned order set aside


Cosmo Films Ltd Vs CCE, Vadodara (Dated: January 1, 2010)

Central Excise – Rejected goods returned to the factory and a portion of the goods become wasted and scrap in the process on which the appellants paid duty – no merit in revenue's contention that the appellants should pay the amount equal to the credit taken on returned goods under Rule 16 of the Central Excise Rules, 2002


M/s Dr Reddy's Laboratories Ltd Vs CC & CE, Hyderabd (Dated: January 28, 2010) Central Excise – 100% EOU – Excess raw materials procured returned to supplier following Rule 6 of Central Excise (RGCRDMEG), Rules, 2001 – Duty demand not sustainable – Impugned order set aside


Pooja Cables Pvt Ltd Vs CCE, Bhopal (Dated: February 16, 2010)

Central Excise – Section 11 D – CENVAT Credit cannot be used for depositing the amount under Section 11 D of the Central Excise Act, 1944 - Collection in excess of the duty should not be construed to be duty collected - The preamble to the statute which is taken as shelter to argue that recovery under Section 11D has character of duty does not appeal in view of specific provision contained in section 11D to debar unjust enrichment.



M/s Sarla Performance Fibres Ltd Vs CCE, Vapi (Dated: May 25, 2010)

PTY cleared into DTA - Since AED (T&TA) is not a part of the Section 3 levy and does not fall under the proviso mentioned in the schedule 1 & 2, it cannot be taken into consideration for examining the fulfillment of the conditions laid down in the said proviso to notification 23/2003-CE, dt. 31.03.2003 – appeal allowed with consequential relief.


M/s Rajmane Industries Pvt Ltd Vs CCE, Bangalore (Dated: January 15, 2010)

Central Excise – Single registration cannot be denied to two manufacturing units separated by a wall – Units located within jurisdiction of same range and same division – Decision in Modison Metals Ltd - 2008-TIOL-941-CESTAT-AHM followed


M/s Bharat Heavy Electricals Limited Vs CCE, Hyderabad (Dated: December 23, 2009)

Central Excise – Manufacture & clearance of sub-assemblies, parts, components etc against common purchased orders by classifying them as turbo generator sets, steam/gas turbines, oil drilling equipments – Though there is piece-meal clearance, finished products to be classified as machinery and not as parts of machinery – Impugned orders demanding differential duty after finalization of provisional assessment, liable to be set aside


M/s Motorola India Pvt Ltd Vs CCE, Bangalore (Dated: February 8, 2010)

Central Excise – Manufacture & clearance of repeaters without payment of duty during June 2002 to March 2006 – Excise duty & education cess paid with interest after availing cum-duty benefit – Letter submitted in December 2006 claiming confusion and conflicting views on manufacturing process resulting in non-payment of duty – If an assessee discharges duty liability on a product and discontinues the same based on an opinion given by consultant, it was for the assessee to approach department and seek clarification – Duty demand and interest liability upheld – In cases where duty and interest are paid within 30 days of the adjudication order, penalty payable only 25% of the duty confirmed in terms of P & H High Court decision in J R Fabrics (P) Ltd - 2009-TIOL-259-HC-P&H-CX – Matter remanded to adjudicating authority for verification of CENVAT credit – W hen assessee has not discharged duty liability but subsequently does so, benefit of CENVAT credit available for duty paid on inputs used in the manufacture of finished goods during the relevant period – Penalty to the extent of 25% upheld


M/s Meghamani Organics Ltd Vs CC,CCE & ST, Hyderabad (Dated: December 10, 2009)

Central Excise – ‘Librel' brand micronutrient classified under Chapter 3105.90 imported in bulk for repacking into retail pack on job work basis – Retail pack also sold under ‘librel' brand as micronutrient, classifiable under Chapter 3105.90 – Chapter 31 of CETA does not have a chapter note which stipulates that packing or repacking or relabeling etc to render product marketable, would amount to manufacture – Activity undertaken by appellant does not amount to manufacture – Impugned order set aside


M/s Tecumseh Products India Pvt Ltd Vs CCE, Hyderabad(Dated: January 21, 2010)

Central Excise – Eligibility of CENVAT credit of SAD debited under DFCE/DEPB and Target Plus Schemes – Duty demand for any short payment of customs duty by debiting DEPB/DFCE license to be raised by Customs authorities – In the absence of such demand, payment of SAD through DFCE/DEPB licenses to be treated as duty paid under Section 3 of Customs Tariff Act, eligible as CENVAT Credit – Impugned orders liable to be set aside


CCE, Hyderabad Vs M/s Santom Enterprises (Dated: December 23, 2009)

Central Excise – Appellant under bonafide belief that FRP/PP Storage tanks, FRP/PP lining pipes etc falling under Chapter 39 fully exempt from excise duty – Extended period not invokable – Plea of limitation being a question of law, can be raised for the first time before Tribunal – No infirmity in impugned order of Appellate Commissioner


CCE & CC, Guntur Vs M/s The Andhra Pradesh Heavy Machinery & Engineering Ltd (Dated: February 18, 2010)

Central Excise – ‘W straps' and ‘Roof bolts' are different from their raw materials viz., hot rolled steel sheets and steel rods respectively in their shape, name and use – Exigible to duty – Impugned order set aside


M/s The Sirpur Paper Mills Ltd Vs CCE, Hyderabad (Dated: December 3, 2009)

Central Excise – Refund of pre-deposits – Amounts due for refund adjusted in terms of Section 11 of Central Excise Act against interest liability for service tax dues confirmed by an adjudication order – When provisions of Section 87 of Finance Act, 1994 are available for recovery of dues under Service tax, invoking provisions of Section 11 not appropriate – Impugned order liable to be set aside


M/s Tyche Industries Ltd Kakinada (A P) Vs CCE, Visakhapatnam (Dated: February 26, 2010)

Central Excise – Education Cess paid on inputs procured from 100% EOU available in its entirety as CENVAT credit – Issue no longer res integra – Impugned orders set aside


Triveni Engineering & Industries Ltd Vs CCE, Bangalore (Dated: December 16, 2009)

Central Excise – Manufacture and clearance of steam turbines without payment of duty to both conventional and non-conventional sources – Not eligible for exemption notification 6/02-CE – Invoice value to be considered as cum duty price to arrive at assessable value – Amount paid as 8%/10% to be adjusted against duty payable - Penalties set aside - Matter remanded for limited purpose


M/s M G Automotives Pvt Ltd Vs CCE, Hyderabad (Dated: March 10, 2010)

Central Excise – Valuation of fabrication/body building of automobiles on job work basis – Whether appellant is liable to pay differential duty as per Rule 10A of Central Excise Valuation Rules or as per Section 4 of Central Excise Act – Pre-deposit of Rs. 4.63 crores ordered


M/s Pavani Polymers Ltd Vs CCE, Hyderabad (Dated: February 22, 2010)

Central Excise – Manufacture of goods on job work basis – To avail benefit of Notification No. 83/94-CE, dated 11.04.1994, raw material suppliers shall furnish declaration to proper officer having jurisdiction over job worker's factory and undertake to pay excise duty if any – Since the said condition was not fulfilled, clearances during material period not qualified for exemption – Pre-deposit of Rs. 20 lakhs ordered


CCE, Hyderabad Vs M/s Sai Shipping Service (Dated: January 21, 2010)

Central Excise – Appeal filed by Revenue only in response to specific query from the Bench as to whether any appeal was filed by Revenue against other parties against whom penalties were set aside by Appellate Commissioner – Revenue did not file any application for condonation of delay on the date of filing of appeal but sent an application by speed post – No convincing explanation put forth to condone delay of three months and twenty six days


M/s Bhopal Wires Pvt Ltd Vs CCE, Bhopal (Dated: January 11, 2010)

Central Excise – Valuation – Deduction of average/equalized freight during the period from 1.7.2000 to 28.2.2003 – Prior to amendment to Rule 5 of the Central Excise Valuation Rules, 2000 w.e.f. 1.3.2003, there was no specific provision in the Valuation Rules allowing deduction of equalized freight

CESTAT observes: Main difference between the Rule 5, as it stood during the period from 1.7.2000 to 28.2.2003 and as it stood w.e.f. 1.3.2003 is that the Rule 5 of the later period specifically provides for deduction of cost of transportation even when it is charged on averaged basis - Board's Circular No.354/81/2000-TRU dt.30.6.2000 is not applicable to the facts of this case as in this case, the freight, though on averaged basis, is separately shown in the invoices

Held: Deduction of averaged/equalized freight would be admissible – What has to be seen is as to whether the quantum of averaged/equalized freight has been determined in accordance with the generally accepted principles of costing – Matter remanded for this purpose


CCE, Salem Vs M/s Salem Dist Co-Operative Sugar Mills Limited (Dated: March 2, 2010)

Central Excise – Deemed credit under Notification No 28/2000 CE dated 31.3.2000 – definition of composite mill amended to restore the requirement of spinning mill – during the intervening period, credit cannot be restricted by treating the appellant unit as composite mill – The appellant's plea that the unit is a non-composite mill is acceptable in view of the apex Court decision in case of M/s W.P.I.L Ltd. Vs CCE Meerut


CCE, Salem Vs M/s Salem Dist Co-Operative Sugar Mills Limited (Dated: February 25, 2010)

Central Excise – CENVAT credit – credit on welding electrodes used for repair and maintenance is settled against the respondents by the Supreme Court – Revenue appeal allowed.


M/s Sri Shanthini Textiles Vs CCE, Salem (Dated: March 2, 2010)

Central Excise – clandestine manufacture and clearance - the production recorded in the private register recovered from the factory premises shows unaccounted excess production over and above what was recorded in the RG I register - charge of unaccounted manufacture and clandestine removal without payment of duty is not only borne out by various statements recorded by the department, but is also confirmed by the three buyers investigated by the department – demand and penalty upheld.


India Cements Ltd Vs CCE, Trichy (Dated: March 18, 2010)

Central Excise – CENVAT Credit – eligibility of goods falling under Chapter Heading 84.84 – Notification NO 25/96 CE (NT) dated 31.08.1996 extending the credit is only clarificatory in nature and has retrospective application – goods in dispute are to be treated as eligible for credit.


CCE, Visakhapatnam Vs M/s Sri Sarvaraya Sugars Ltd (Dated: December 4, 2009)

Central Excise – CENVAT Credit on glass bottles broken during loading of finished goods viz., aerated waters not deniable – Larger Bench decision in Grasim Industries = 2007-TIOL-135-CESTAT-DEL-LB followed


CCE, Madurai Vs Shri Gangotri Textiles Ltd (Dated: March 15, 2010)

Central Excise – CENVAT Credit – removal of capital goods as such – the assessee is required to reverse the credit in respect of capital goods removed as such after being put to use as held by the Larger Bench in Modernova case


CCE, Chennai Vs M/s Titanium Equipment & Anode Manufacturing Co Ltd (Dated: February 24, 2010)

Central Excise – excisability of Illuminated Sign Boards - illuminated sign board and M.S. Shells come into existence as a result of fabrication and installation at site and the same cannot be dismantled and moved from place to place and marketed. Hence, the impugned order passed by the lower appellate authority requires no interference and revenue appeal dismissed.


CCE, Chandigarh Vs M/s Kisco Castings (Dated: January 6, 2010)

Central Excise – CENVAT Credit - Once the respondents clearly admitted about the absence of genuineness of the vehicle numbers which are stated to have transported the material described under the Invoices in question, the burden was upon the respondents to establish that the material thereunder was actually delivered to and received by the respondents - it is difficult to accept the contention that the end use certificate itself establishes actual use of the materials described under the invoices in question as having been received by the respondents and used for manufacture of the final product – Commissioner (Appeals) order is set aside and the original order restored.


CC, Chennai Vs VDSR Rolling Mills Ltd (Dated: February 23, 2010)

Central Excise – clandestine removal of CTD / ribbed bars – The Commissioner (Appeals) has not considered the entire gamut of evidence relied upon by the revenue to support its case – impugned order is set aside and matter remanded for fresh decision.


CCE, Chennai Vs Vishnupriya Paper Mills P Ltd (Dated: February 23, 2010)

Central Excise – manufacture of dutiable and exempted goods – in absence of maintenance of separate accounts for the inputs used in dutiable and exempted goods, demand of 8% amount on the exempted goods under the provisions of Rule 57 CC of the Central Excise Rules is upheld – However, penalty is set aside.


M/s LSR Speciality Oils Pvt Ltd Vs CCE, Belapur (Dated: May 10, 2010)

Shortage of goods during stock-taking – lower authorities averring that the verification was done by CERA but the SCN does not make a mention of this fact - RTI application revealed that no such verification was done by CERA – Matter remanded



M/s Lason India Pvt Limited Vs CST, Chennai (Dated: March 11, 2010)

Central Excise – Refund of CENVAT Credit in respect of input services used for export of output service – credit / refund cannot be denied on the ground that the supplier of the input services did not pay service tax to the department – As per Rule 4(7) of the CENVAT Credit rules, if the receiver of the input service has paid for the value of input services and the service tax paid or payable as indicated in the invoices, credit is admissible.


Subhash Industries Vs CCE, Pune (Dated: March 24, 2010)

Compounded levy scheme in respect of Aluminium Circles and utensils – Rule 96ZB of CER, 1944 - whether mere presence of two more cold-rolling machines enough to saddle central excise duty liability by assuming production on their account or is installation of the machines essential – Difference of opinion: Matter referred to the President



M/s Maheswari Industries Vs CCE, Hyderabad (Dated: January 13, 2010)

Central Excise – Plastic moulded chairs and stools manufactured and cleared by affixing brand name of another person not eligible for SSI benefit under Notification No. 8/2003-CE – Since intention to evade duty was proved, penalty under Section 11AC justified irrespective of duty having paid before issue of SCN – Appellate Commissioner's order relating to confirming duty upheld and order portion reducing penalty set aside


CCE, Hyderabad Vs M/s Vayhan Air Controls Pvt Ltd (Dated: December 31, 2009)

Central Excise – Demand of 10% on sale price of goods cleared to SEZ Developers – Clearances to SEZs are exports and cannot be regarded clearance of exempted goods – Provisions of Rule 6(3) of CCR not applicable – No reason to interfere with order of Appellate Commissioner


CCE, Aurangabad Vs Trans Delta Electricals (Dated: May 11, 2010)

It is the duty of the department to verify the exemption sought by the appellant as mentioned in the ER-1 returns to the extent why the exemption has been claimed and whether the credit has been reversed or not – Department having failed in its duty, extended period not invokable



M/s Concord Bio-Tech Ltd Vs CCE, Ahmedabad (Dated: January 27, 2010)

Central Excise – Cenvat credit – Goods cleared for home consumption and then received back – Same goods exported under bond at a lower value without payment of duty – Department demanded reversal of Cenvat credit corresponding to the differential value - Reliance of the lower authorities on rule 3(4)(b) of CCR,2004 and Rule 16 of CER,2002 is ill-founded and cannot be sustained – Credit not requires to be reversed


CCE, Kanpur Vs M/s Adarsh Kanch Udyog Pvt Ltd (Dated: February 16, 2010)

Central Excise – Finished goods found short on physical verification by the officers – the confessional statement of authorized signatory admitting the clearance without payment of duty is admissible evidence – Commissioner (Appeals') order vacating the penalty is not correct – Order-in-Original imposing penalty under Section 11 AC is restored – However penalty reduced to 25% as the entire duty was paid before issue of the Show Cause Notice.


M/s Sports And Leisure Apparel Ltd Vs CCE, Noida (Dated: February 24, 2010)

Central Excise – Exemption under Notification No 15/2002 CE - the conditions which are required to be complied with in relation to the input utilized for final product to enable the final product to be eligible for exemption benefit under the notification and the obligation in relation to the input are necessarily required to be complied with before the input goes for utilization in the final product. If the payment of duty having been made subsequently, it cannot be said that condition regarding payment of duty before utilization of inputs was satisfied, and therefore, the benefit thereunder was rightly refused to the appellants.


M/s Sri Venkateswara Oxygen Pvt Ltd Vs CCE, Coimbatore (Dated: March 11, 2010)

Central Excise – CENVAT Credit – the jurisdictional officers at the end of the appellants cannot question the quantum of duty paid at the suppliers' end as held by the Supreme Court.


CCE, Meerut Vs M/s Continental Cement Co (Dated: February 15, 2010)

Central Excise – Application for restoration of appeal - whether an order was passed in abuse of its processor whether an order is necessary to secure the ends of justice depends upon the facts of each case - To invoke such powers the party has to disclose necessary factual matrix, which is totally absent in the case in hand - There was neither any abuse of its process by the Tribunal in disposing of the said appeals nor any interference therein is called for as it would not be in the interest of justice, but, on the contrary, it would amount to abuse of its powers.


M/s Comet Technocom (P) Ltd Vs CCE, Kolkata (Dated: February 1, 2010)

Central Excise – Job-work – Applicant's claim that they have got manufactured goods from independent job workers and so, the duty liability is on the job workers – Statement of one of the so called job workers indicates that they are not independent manufacturers rather are hired labours of the Applicants – Applicants failed to prove that goods were manufactured by job workers - Not a fit case for total waiver of duty – Pre-deposit ordered


CCE, Bhopal Vs M/s Crompton Greaves Ltd (Dated: January 28, 2010)

Respondents are manufacturers of transformers and use CRGO sheets as input for making transformer core - waste and scrap arising during the course of manufacture of transformers have been sold by them as CRGO waste and scrap – contention of Department to treat such clearance as clearance of CRGO sheets and to invoke the provisions of Rule 3(5) is not at all justified – Revenue appeal rejected.


CCE, Meerut-I Vs M/s Janardan Plywood Industries Ltd (Dated: December 15, 2009)

Central Excise – Small Scale Exemption under Notification 1/93 CE dated 28.2.1993 - There is no compulsion prescribed under the notification No 1/93 CE for manufacturer having more than one unit to avail the benefit necessarily for all the units – no merit in revenue's appeal.



M/s Golden Tobacco Ltd Vs CCE (Adjudication), New Delhi (Dated: February 15, 2010)

Central Excise – Valuation – Major portion of sales proceeds received from Wholesale Buyers was adjusted towards Security Deposit thereby creating artificial sales outstanding – On the amount of sales outstanding 13% to 20% interest charged by the Appellant whereas, on Security Deposit only 3% interest was being paid by Appellant – All supplies were made against advance payments and therefore it was absolutely not necessary for taking such huge security deposits – Enhancement of Security Deposit to serve as a deice for generating artificial sales outstanding from Wholesale Buyers - Prima facie there is merit in the Department's allegation that the "differential interest" on sales outstanding is nothing but a part of the sale proceeds which should have been included in the assessable value - Appellant have done a meticulously planned fraud with intention to evade huge amount of duty – No immunity for pre-deposit under Section 35F for the unit declared as 'sick unit' – Duty attracted was around 200% adv.; and Commissioner extended the benefit by treating the quantum of additional consideration as cum duty amount; and so Appellant have already got a substantial relief - Pre-deposit of entire amount of duty ordered


M/s Delux Re-Rolling Metal Pvt Ltd Vs CCE, Bhavnagar (Dated: Januay 8, 2010)

Central Excise – Illicit purchase of raw materials and fuel and clandestine removal of excisable goods – Private note book contains all the relevant details such as truck number, weight of the goods, description etc. as regards receipt of raw material as well as dispatch of finished goods – Director admitted the offence in his Statement but subsequently retracted – Purchasers retracted their statements only during cross examination - Retraction would not be of any help to the appellants in view of the fact that the statements as well as the note book and other records recovered together revealed the evasion of duty and they were corroborative in nature - The matter is coming third time before the Tribunal - Appellants themselves had admitted before Settlement Commission - Admitted liability is always required to be discharged and they have been only postponing the inevitable – Considering financial difficulties of the appellants, 1/3 rd of total amount ordered to be deposited


SMP Textiles Mills (P) Ltd Vs CCE, Madurai (Dated: March 15, 2010)

Central Excise – Refund – unjust enrichment - prohibition by law from collecting turnover tax from customers by sales tax assessee, and excise invoices not separately showing turnover tax and excise duty thereon, would constitute discharge of burden of proof of non-passing of incidence of duty – impugned order set aside.


Rhydburg Pharmaceuticals Vs CCE, Delhi (Dated: March 3, 2010)

Central Excise – Shortage of inputs during the physical verification of the stock – appellants paid duty immediately - charge of clandestine removal cannot be upheld merely based on presumptions and possibilities – Penalty under Section 11AC modified to Rs 5,000/- under Rule 27 of CE Rules, 2002 – Penalty on director set aside.


CCE, Lucknow Vs M/s J M Agarwal Tobacco Co Pvt Ltd (Dated: December 17, 2009)

Central Excise – clandestine clearances - it is an established principle of law that Revenue need not establish its case by mathematical precision- In this case, although there was no direct evidence of clandestine removal came to record, but the evidence demonstrated that the tobacco product was removed from factory for no explainable reason – Commissioner (Appeals) order set aside and the order-in-original confirming the demand is restored back.


M/s Cadila Healthcare Ltd Vs CCE, Ahmedabad (Dated: January 29, 2010)

Central Excise – Lower production of final product against higher consumption of inputs – Duty demanded on differential quantity - No investigation conducted by Department or no evidence regarding clandestine removal – Appellant claims it was a process loss – CESTAT observes: It is the primary responsibility of the department to show that there was production to demand duty. There is no explanation either from the party or from the department as to what happened to such a huge quantity of different inputs. - Appellants have made out a very strong prima facie case in their favour - Requirement of pre-deposit waived - Stay petition allowed


M/s Ishwar Steels Vs CCE, Noida (Dated: March 12, 2010)

Central Excise – Principles of natural justice – the appellants were not supplied with the copies of the documents - no fair opportunity given to the assessee to put forth its defence and then to produce the necessary material in support of its defence – Commissioner could not have treated the letter seeking the documents to be the defence of the appellants – such finding is totally perverse – matter remanded.


Glaxo Smithkilne Consumer Healthcare Vs CCE, Delhi (Dated: January 6, 2010)

Central Excise – Penalty - Valuation – Bulk Horlicks transferred to packing stations on provisional assessment – Assessment finalised on the basis of cost construction method – After finalization of assessment, department noticed that the return freight of empty containers was not included in CAS-4 statement – On being pointed out by department, differential duty paid – Plea that it was an unintended omission - Duty paid on bulk Horlicks was available as credit to packing stations - No allegation of any wilful suppression in the show cause notice – No ingredient exists for invoking Section 11AC – Penalty set aside


M/s Lanco Industries Ltd Vs CCE, Tirupathi (Dated: January 18, 2010)

Central Excise – Allegation that goods viz., pig iron and molten iron were cleared to sister concern at lesser value resulting in short payment of duty – Differential duty having paid before issue of show cause notice, whether mandatory penalty liable under Section 11AC and interest recoverable under Section 11AB – It cannot be held that there is any intention to evade duty, that too after adopting transaction value, when purchaser would be eligible to avail CENVAT Credit of duty paid by assessee

Limitation – When regular monthly returns were filed with authorities and no objections were raised on transaction value adopted by assessee, allegation of intention to evade payment of duty not sustainable – SCN issued for demand of duty blatantly time barred – When it is held that assessee had no intention to undervalue goods to evade payment of duty and in the absence of any suppression or mis-statement, Section 11AC cannot be invoked – When demand of duty itself is time barred, though it was paid by assessee before issue of SCN to avoid litigation, levy of interest does not arise

Maintainability of appeal - Preliminary objection by Revenue – When Apex Court sets aside CESTAT order and directs it to consider matters afresh, Tribunal can go into all issues on remand while considering matters afresh and not just restrict it to issues regarding levy of interest and penalty, which were the only subject matters of appeal filed by Revenue before Supreme Court – Preliminary objection of Revenue dismissed


M/s Slotco Steel Products Pvt Limited Vs CCE, Delhi (Dated: March 19, 2010)

Central Excise – Principles of natural justice – Witnesses whose statements were relied on did not respond to the summons for cross examination - there was no effort made on the part of the appellants to insist for cross-examination of those witnesses and/or to insist for their presence for cross-examination. Instead the appellants themselves choose to make a submission to discard the statements of those witnesses and to decide the matter ignoring those statements - It is not a matter of right for any assessee to contend that the statements of witnesses should be discarded. His right is only to insist for cross-examination of the witness. Even in cases where the presence of the witness cannot be secured on account of delay, the authority is not forbidden from relying upon the statement of such witness as per Section 9D of the Central Excise Act, 1944.


CCE, Jaipur Vs M/s Welkin Polymers (P) Ltd (Dated: January 22, 2010)

Central Excise – CENVAT Credit – inputs received from 100% EOU with duty paid in terms of Notification No 2/95 CE – the respondents are eligible for credit only to the extend of additional duty leviable on like goods under Sec 3 of the Customs Tariff Act, 1975 – Since the issue involves question of interpretation, penalty set aside.


M/s Vinayak Steel Ltd Vs CCE, Hyderabad (Dated: January 18, 2010)

Central Excise – Goods cleared to SEZs are exports under SEZ Act and cannot be regarded as exempted goods – Rule 6(3)(b) of CCR not applicable – Full waiver of pre-deposit allowed and stay granted


M/s Globe Enterprises Vs CCE, Panchkula(Dated: April 9, 2010)

Central Excise – Stay/Dispensation of pre-deposit – CENVAT credit – manufacture of dutiable and exempted goods – demand of 8% under Rule 6(2) of the CENVAT Credit Rule 2004 is prima facie sustainable as the assessee failed to maintain separate accounts and also the exempted goods were not exported under bond – limitation is also prima facie sustainable – pre-deposit ordered.



CCE, Surat-I Vs M/s Ameen Silk Mills (Dated: April 27, 2010)

Central Excise – Deemed credit – Deemed credit is not admissible for the finished goods in stock and cleared after rescinding the Notification No 6/2002 CE(NT) which allowed deemed credit – matter remanded on the question of limitation.



M/s Garg Telecom Co Vs CCE, Allahabad (Dated: March 23, 2010)

Central Excise – CENVAT Credit – quantum of credit on inputs procured from 100% EOUs on which duty was paid under Notification 2/95 CE – in view of the Larger Bench decision in case of Vikram Ispat, the credit is admissible to the extent of CVD payable.

Demand of 8% amount on the goods cleared under exemption notification No 10/97 CE – the appellants were filing periodical returns with the department and the demand is barred by limitation


M/s L G Balakrishna & Bros Ltd Vs CCE, Mysore (Dated: January 15, 2010)

Central Excise – Eligibility of credit of duty paid on capital goods sent to job worker for manufacture of final products but not received within 180 days – In the absence of any machinery provision for recovery of credit availed on capital goods not received back within 180 days matter remanded to lower authority to examine provisions of Rule 4(5)(a) of CCR to examine the relevant provision and also limitation aspect


SRK Constructions Vs CCE, Kochi (Dated: March 17, 2010)

Central Excise – CENVAT Credit – Rent-a-cab service used for brining personnel to the factory for visits to Government Departments and Police Department is admissible for Credit.


M/s Uniworth Textiles Limited Vs CCE, Raipur (Dated: February 19, 2010)

An appeal is liable to be dismissed for non-compliance of the pre-deposit directions and it is not necessary that the same has to be disposed of on merits.



CCE, Hyderabad Vs M/s Kedia Vanaspathi Ltd (Dated: January 8, 2010)

Central Excise – Money Credit accrued to a manufacturer in one unit and remaining unutilized, eligible for utilization by another unit of same manufacturer – No merits in revenue appeal – Impugned order upheld


M/s MFPL Flourine Products Ltd Vs Chief CCE, Chennai (Dated: February 23, 2010)

Central Excise – remission of duty on goods lost in floods – when the assessee had not applied for remission of duty by the Commissioner, and in the absence of remission order, the original authority had no power to drop the demand of duty which was otherwise payable in respect of the goods manufactured, stored in the factory premises and unaccounted for – appeal dismissed with liberty to file a claim of remission before the jurisdictional Commissioner.

Limitation - Section 11A and Rule 223A deal with different situations and the period of limitation provided under Section 11A is not applicable to the situation contemplated under Rule 223A - The argument advanced on behalf of the appellants that the demand was time-barred is not tenable


M/s Hawkins Cookers Limited Vs CCE, Jalandhar (Dated: February 19, 2010)

Central Excise – Valuation – Clearance of pressure cooker parts from factory gate at MRP less 35% to depots and sold through depots – Though pressure cookers are notified as goods subject to assessment under Section 4A and parts of pressure cooker assessable under Section 4, SWMA entails affixing of MRP for pressure cooker parts as well – When pressure cooker parts are being sold at depots allowing further discounts like general trade discount, cash discount, prompt payment discount etc to dealers, price at which goods sold at depots lesser than value on which duty was paid at factory gate – No evidence produced by department that pressure cooker parts were sold at depots by assessee at MRP – Discounts to dealers along with sales tax and other local taxes to be excluded from MRP for determining the assessable value, whereas department sought to levy duty on MRP itself which is prima facie incorrect – Merits in assessee's contentions to waive pre-deposit of duty, penalty and interest –

Pre-deposits waived and stay granted


M/s Kirloskar Batteries Pvt Ltd Vs CCE, Bangalore (Dated: February 2, 2010)

Central Excise – Refund claim filed for excess interest paid on account of monthly defaults in payment of excise duty, with interest – As per section 11BB, authority should be allowed to process such claim and sanction refund within three months, failing which they are liable to pay interest – No infirmity in Appellate Commissioner's order holding that interest is payable only for the period beyond three months from the date of filing of refund claim – No reason to interfere with such order


M/s Bellary Steels & Alloys Ltd Vs CCE, Belgaum (Dated: December 14, 2009)

Central Excise – Stay order directing deposit of 50% of amount is interlocutory order and governed by the decision of Karnataka High Court in McDowell Ltd case – Modification or recall of stay orders cannot be entertained – Time extended to pre-deposit ordered earlier


M/s Mukand Ltd & Others Vs CCE, Belgaum (Dated: December 29, 2009)

Central Excise – Setting up of integrated steel plant by three different entities by a strategic alliance agreement to share manufacturing activities for different products by three entities – Capital goods and equipment procured and installed by three entities for optimal utilization and shared use – Credit on capital goods denied on the ground that they were not installed in the respective units – When declarations were filed under Rule 57T for capital goods received in 1997-98 and accepted by department, show cause notice issued in January 2000 barred by limitation – Tribunal in its earlier order against the same show cause notice allowed the appeal in favour of assessee on limitation and merits – Since appeal is allowed on limitation no findings given on merits of the case


M/s Akay Cosmetics Pvt Ltd Vs CCE, Belgaum (Dated: February 19, 2010)

Central Excise – Goods cleared from factory without payment of duty under cover of invoices returned to factory in the same months – Duty/Interest not payable, as Rule

8 of CER allows payment of duty by 5 th of subsequent month – Exercise of payment of duty on such goods would be revenue neutral since assessee is eligible to take credit of duty paid on such goods in terms of Rule 16 of CER, 2002 – Duty demand is misconceived, liable to be set aside


M/s Bharat Heavy Electricals Ltd Vs CCE, Bhopal (Dated: March 16, 2010)

Central Excise – refund of duty paid twice on the same transaction – the claim of refund was rejected by the department on the ground that the assessments were provisional – at the time of finalization of assessments the refund claim was not considered – appellants filed refund claim again after the finalization of provisional assessments – since the refund claim was filed within one year from the date of finalization of provisional assessment, the same cannot be rejected on the ground of time bar.


M/s Glaxosmithkline Consumer Healthcare Ltd Vs CCE, Visakhapatnam (Dated: December 29, 2009)

Central Excise – Demand of 8%/10% amount on clearance of bye-product ‘ghee' cleared at ‘nil' rate of duty – Applicability of Rule 6 of CCR to bye-products to be examined in detail – Pre-deposit of Rs. 45 lakhs ordered


CCE & ST, Bangalore Vs M/s Micro Labs Ltd (Dated: January 29, 2010)

Central Excise – CENVAT Credit – Credit availed on industrial garment washing equipment/machines used for washing employees uniforms – Industrial washing machine/equipment falls under Chapter 84 and are used in the factory of the manufacturer of final products – Supply of clean and hygienic clothes mandatory as per Drugs & Cosmetics Rules, 1945 – Credit not deniable – No infirmity in order passed by Commissioner (Appeals)


Epcos India Private Ltd Vs CCE, Nashik (Dated: April 12, 2010)

Sales Tax incentive scheme - amount of sales tax collected from the customers but not paid to the State Government by the assessees availing the above incentive is deemed to have been paid to the Government – such amount is not an additional consideration and is excludible from Assessable value u/s 4 of the CEA, 1944



M/s Navabharat Ferro Alloys Ltd Vs CCE, Visakhapatnam (Dated: December 1, 2009)

Central Excise – Duty paid/credit reversed proportionately on molasses/inputs used for manufacture of duty exempted rectified spirit – When assessee takes a stand before CESTAT earlier that they are not liable to pay 8% amount once they reverse amount of CENVAT credit availed on inputs used in manufacture of exempted goods, they cannot reverse their stand and claim that they are liable to pay only 8% amount – Refund claim filed for difference of amount not allowable – Since issue has attained finality through earlier order of CESTAT on the same issue, appeal dismissed


M/s Eternit Everest Ltd Vs CCE, Bhopal (Dated: January 15, 2010)

Central Excise – Hard Ground Powder (HGP) obtained from asbestos cement corrugated sheets destroyed after remission of duty not classifiable under Chapter 6805.90 and not liable to excise duty – Department did not adduce evidence to show that HGP has any bonding strength or that its asbestos fibre content is of usable length and can be used for fabricating articles of asbestos – Also no evidence produced to show that HGP can be used as filtering material or as heat insulation material

Limitation – When appellant has filed classification declaration declaring hard ground waste and it is approved by department, show cause notice issued after four years hit by limitation – Plea of whether assessee or job worker is liable to pay duty being a question of law can be taken up at any stage – When HGP is obtained after processing by job workers duty liability, if any, rests with job workers when transaction between assessee and job worker is on principal to principal basis – Impugned order not sustainable


EMCO Ltd Vs CCE, Mumbai-II (Dated: January 19, 2010)

Equivalent penalty imposed under Rule 57I(4) and/or Rule 173Q of CER, 1944 – it cannot be called composite penalty but much worse – adjudicating authority not clear in his mind as to which of the provisions was applicable – such imposition was upheld by lower appellate authority with equal non-application of mind – composite penalties not permissible in law

Application for accepting additional documentary evidence – attempt a haphazard one and there are no bonafides established by the appellant to file the present application

– Miscellaneous application rejected.

Recovery and penal proceedings not illegal - "omission" of a Rule was a species of "amendment" and, therefore, the provisions of Rule 38A would squarely apply to proceedings initiated under a Rule subsequently omitted – LB decision in Kisan Sahakari Chini Mills Ltd. [ 2002-TIOL-458-CESTAT-DEL-LB ] relied upon.

Assessee failed to adduce evidence to establish that such raw materials, after job-work, returned to them and that the finished goods manufactured out of such materials were cleared on payment of duty – General Manager and Excise clerk admitted to have removed inputs without paying any duty or reversing credit – statements not retracted – duty demand upheld.

Confessional statement regarding clandestine removal of raw material is not enough to impose penalty on General Manager – Such argument is far-fetched. If this argument is accepted, the very purpose of adjudication will be defeated - A penalty cannot be imposed on the strength of mere allegation. It will be imposed on the strength of clear finding of penal liability. - liability under Rule 209A should have been established by the lower authorities by clearly disclosing the manner in which the General Manager dealt with the goods in question. If it is shown that he dealt with the said goods in a manner indicating his knowledge or belief that the goods were liable to confiscation, he can be mulcted with a penalty under Rule 209A. Neither of the lower authorities has come anywhere near this area - Penalty imposed on the General Manager set aside.



M/s Oswal Paper & Allied Industries Vs CCE, Jalandhar (Dated: February 19, 2010)

Central Excise – CENVAT Credit – credit was sought to be denied in the show cause notice on the ground that the Bill of Entry was not in the name of the appellants, but credit was disallowed by the adjudicating / appellate authorities by raising a new ground that the appellants did not produce the triplicate copy of the Bill of Entry - credit cannot be denied on a new ground which was not taken in the show cause notice.

For the period prior to 19/1/95, there was no requirement of issuing invoices by an assessee in four copies, each marked original, duplicate, triplicate and quadruplicate and taking of Modvat credit by the input/capital goods receiver only under invoice marked - "Duplicate for Transporter".


M/s Parry Enterprises India Limited Vs CCE, Pondicherry (Dated: March 3, 2010)

Central Excise – Refund – erroneous refund – mere review of the order sanctioning refund is not enough – the department should also issue demand notice under Section 11A – having not done so, the department cannot legally recover the refund granted.


M/s Puissance DE DPK Vs CCE, Chennai (Dated: March 11, 2010)

Central Excise – CENVAT Credit on the returned goods – credit can be taken on the assessee's own invoice – demand notice is also time barred.


M/s Sudha Industries Vs CCE, Guntur (Dated : December 23, 2009)

Central Excise – Benefits of SSI exemption notification 8/03-CE not available when parts/components are manufactured on job work basis embossing brand name of job worker – Apex Court decision in Rukmani Pakkwell Traders 2004-TIOL-51-SC-CX followed


M/s Ultratech Cement Ltd Vs CC & CCE, Tirupati (Dated: March 2, 2010)

Central Excise – CENVAT Credit – Payment of interest on availment of ineligible CENVAT credit – Assessee has not produced extracts of CENVAT Credit A/c before Commissioner (Appeals) to come to a conclusion whether ineligible credit was utilized or not – Matter remanded to scrutinize the records and to see the applicability of P & H High Court decision Ind-Swift Laboratories Ltd. vs. Union of India - 2009-TIOL-440-HC-P&H-CX


Mr KTMS Engineering Pvt Ltd Vs CCE, Mysore (Dated: February 19, 2010)

Central Excise – Whether duty paid on cutting/slitting of HR/CR coils eligible as credit to buyers – Once duty liability is discharged on finished goods manufactured by assessee from duty paid inputs (HR/CR coils) there cannot be any denial of CENVAT credit on such inputs – Impugned order set aside


CC & CCE, Indore Vs M/s HIM Technoforge Ltd (Dated : December 10, 2009)

Central Excise – ‘Metal band saw blades' and ‘steel shots' are in the nature of consumables used in relation to manufacture of final products, to be regarded as inputs and not capital goods as claimed by department – No infirmity in Commissioner (Appeals) order


M/s Bill Forge Pvt Ltd Vs CCE (Dated : February 22, 2010)

Central Excise – Irregularly availed CENVAT Credit reversed before utilization except education cess amounting to Rs. 11,000 – Penalty under Section 11AC applicable only when an order was passed under Section 11A(2) with a finding that there was intention to evade duty – Impugned order does not give any finding to that effect, penalty set aside – When assessee has not utilized the irregularly availed credit interest demand not sustainable – Impugned order set aside


CCE, Noida Vs M/s Polytron & Fragrances Inds (P) Ltd (Dated: February 16, 2010)

Central Excise – CENVAT Credit – capital goods burnt due to fire accident - burnt capital goods removed on payment of duty on the transaction value – revenue in appeal seeking reversal of credit originally taken under rule 3(5) of the CNEVAT Credit rules 2004 – revenue has not has produced any evidence that the goods sold were not scrap, but usable capital goods – appeal has no merit.


M/s Rishi Polymach Pvt Ltd & Ors Vs CCE, Bangalore (Dated: Januray 18, 2010)

Central Excise – Eligibility of MODVAT Credit on HDPE granules, raw materials – Allegation that inputs were not received in factory and lesser grade granules were used for manufacture of finished goods, not supported by adequate evidence by department, demand of duty and penalty liable to be set aside – As regards eligibility of MODVAT credit on account of non-use/non-receipt of imported raw materials as indicated in balance sheets there is no requirement to insist on private records when statutory records are available – Since lower authority has not considered statutory records matter remanded for the limited purpose of verifying receipt and consumption of imported raw materials – Penalties on assessee and their employees set aside


M/s The Sirpur Paper Mills Ltd Vs CCE, Hyderabad (Dated: Januray 18, 2010)

Central Excise – Suo motu availment of refund – There is no provision in law for suo motu taking of credit or refund without sanction by appropriate officer – Larger Bench decision in BDH Industries 2008-TIOL-1211-CESTAT-MUM-LB followed


CCE, Vapi Vs M/s Trinity Industries (Dated: February 26, 2010)

Central Excise – Clearance of imported kits after assembly by pasting removable stickers to conceal original brand name and show local brand name – Denial of SSI benefit on the ground that goods were affixed with brand name of another person – No bar for Revenue to file appeal against another order merely because an earlier order was accepted – Appeal filed by Revenue does not put forth any other ground other than merely stating that lower authority's order has no merits – No merit in Revenue appeal, liable to be rejected


CCE, Raigad Vs Ilibars Ltd (Dated: March 23, 2010)

Job worker reversing Cenvat Credit of duty paid on Furnace oil at Revenue's insistence – refund claim filed allowed by Commissioner(A) holding that rule 6(2) of the CCR does not come into play in case of fuel – in view of LB decision in Sterlite Industries respondent entitled to take re-credit - Revenue appeal dismissed



M/s Scorpio Engineering Pvt Ltd Vs CCE, Bangalore (Dated: Januray 18, 2010)

Central Excise – While CESTAT in its order set aside duty demand on merits, Revenue appealed to High Court only on the issue of non-levy of interest and did not challenge the order on merits – Since duty demand was already set aside by Tribunal, levy of interest does not arise


LG Electronics Pvt Ltd Vs CCE, Pune (Dated: March 11, 2010)

Removal of inputs to job worker/ancillary units without reversal of the SAD credit availed of Rs.2.12 Crores – amount reversed on being pointed out – no cause for imposition of any interest as there is no intention to evade payment of duty and the

fact that the credit had not been utilized – penalty imposed u/r 15(2) of CCR, 2004 improper as there is no finding that the inputs or capital goods were liable for confiscation



CCE, Belapur Vs B G Constructions (Dated: March 23, 2010)

Section 4A of the CEA, 1944 – exemption under rule 34(b) of SWAM Rules, 1977 - Conditions for "wholesale package" laid down under clause (x) of Rule 2 of the SWAM Rules, 1977 have to be independently considered and not in conjunction – Goods rightly assessed under section 4 of the CEA, 1944 - Revenue appeal dismissed



CCE, Delhi -I Vs M/s Birla Textiles Mills (Dated: December 23, 2009)

Central Excise – Refund of pre-deposits initially paid through CENVAT Credit A/c by way of cash – Though Revenue filed a single appeal since refund amounts are Rs. 10 lakhs and Rs. 1 lakh in two different cases and covered by two different orders of original authority but disposed of by a common order by Commissioner (Appeals), single member competent to hear appeals – When pre-deposit was initially paid through CENVAT Credit A/c, refund payable in cash in situations where at the time of grant of refund the unit is either closed or it is not in a position to utilize the CENVAT Credit at all for any reason – Since unit was relocated to Baddi where final products are eligible for exemption from excise duty, refund of pre-deposit in cash justified – Refund to be treated as sanctioned only when it is paid in cash, interest to be paid for delayed refund – No infirmity in Appellate Commissioner's order


Kinetic Engg Ltd Vs CCE, Pune-1 (Dated: March 25, 2010)

The concept of provisional assessment and its finalization is not applicable to MRP-based assessment



M/s Nu-Chem Ltd Vs CCE, Rohtak (Dated: January 15, 2010)

Central Excise – Supplies made to SEZs are exports and not exempted goods, provisions of Rule 6(3)(b) of CENVAT Credit Rules not attracted – Full waiver of pre-deposit allowed and stay granted


M/s Reliance Chemotex Industries Ltd Vs CCE, Jaipur-II (Dated: December 18, 2009)

Central Excise – Refund – Export of yarn without payment of duty under Rule 19 of CER and claim of refund of input credit in terms of Rule 5 of CCR – Goods exported during July to September 2007 and refund claims filed during May 2008, well within the limitation period – Non-production of Customs certified copies of shipping bills along with refund application a remediable defect for which refund claim cannot be denied, when Customs certified copies of shipping bills were produced subsequently – Full waiver of pre-deposit allowed and stay granted against recovery


Mukul Engineering Works Vs CCE, Thane (Dated: March 24, 2010)

Notification 6/2002-CE - Appellant mounting a tank over chassis supplied by M.V manufacturers and claiming exemption - Whether chassis is different from a ‘running gear' - stand taken by the department is neither logical nor based on any literature concerning the motor vehicle industry – Duty correctly discharged – Appeals allowed



Shri Bhagwan R Daswani Vs CCE, Mumbai (Dated: February 3, 2010)

Central Excise – If goods were to be seized instead of sales proceeds, officer adjudging confiscation would have given an option to pay fine in lieu of confiscation - An option, therefore, has to be given to pay fine in lieu of confiscation of sales proceeds.



M/s J R Herbal Care India Ltd Vs CCE, Noida (Dated: March 16, 2010)

Central Excise – Capital goods received by SSI unit during the exemption period in FYs 2003-04 & 2004-05 but CENVAT Credit availed after crossing the threshold limit of Rs. 1 crore in subsequent FY 2005-06 – A manufacturer exempted from registration formalities under Rule 9(1) of CER having availed SSI exemption does not cease to be a manufacturer of excisable goods – Assessee eligible to avail full credit on capital goods received prior to 10.09.2004 in FY 2005-06 in terms of Board Circular dated 29.08.2000 as part credit was not availed in FYs 2003-04 and 2004-05 – Impugned order not sustainable, liable to be set aside


M/s Midas Techniques Pvt Ltd Vs CCE, Mumbai (Dated: April 5, 2010)

Gold plating of imitation jewellery does not constitute an exigible process of manufacture – ROM application to correct the word 'appellant' by 'respondent' allowed



CCE, Belgaum Vs M/s Praxiar India Ltd (Dated: December 15, 2009)

Central Excise – MTOP charges paid by buyer for failure to lift minimum guaranteed quantity of excisable goods is liquidated damages – Not to be regarded as additional consideration for goods actually sold – Not includible in assessable value


M/s Webel-Sl Energy Systems Ltd Vs CCE, Kolkata-III (Dated: January 18, 2010)

Central Excise – Clearance of goods from 100% EOU to DTA without payment of duty – Claim of effective rate of duty under Notification No. 6/2006-CE for computing CVD not acceptable since Notification No. 6/2006-CE is not made applicable to EOUs in terms of proviso to Section 5A of Central Excise Act, 1944 – Plea of time bar and limitation is a mixed question of law and facts, to be looked into only at the time of final hearing – Pre-deposit of 50% of confirmed demand ordered

2010-TIOL-624-CESTAT-DEL-LB

Vandana Global Ltd Vs CCE, Raipur (Dated: April 30, 2010)

Central Excise – CENVAT Credit – Whether the term “capital goods” can include plant, structures embedded to earth? - Whether the goods like angles, joists, beam, channels, bars, flats which go into fabrication of such structures can be treated as ‘inputs' in relation to their final products as inputs for capital goods, or none of the above - Whether the credit can be allowed in respect of goods like angles, joists, beam, channels, bars, flats which go into fabrication of such structures and plant? – Larger Bench answers reference in favour of Revenue by holding that Explanation 2 to Rule 2(l) of CENVAT Credit Rules, 2004 is clarificatory in nature and has retrospective effect

Reference to Larger Bench to answer the following questions:

(a) Whether the term "capital goods" can include plant, structures embedded to earth?

(b) Whether the goods like angles, joists, beam, channels, bars, flats which go into fabrication of such structures can be treated as 'inputs' in relation to their final products as inputs for capital goods, or none of the above?

(c) Whether the credit can be allowed in respect of goods like angles, joists, beam, channels, bars, flats which go into fabrication of such structures and plant?

Larger Bench answers reference as follows:

(a) The term "capital goods" has been defined in the CENVAT Credit Rules, which in turn have been framed under the rule making powers conferred under Section 37(2) of the Act. The said Section refers to credit of duty paid on goods used in, or in relation to the manufacture of excisable goods. Hence, 'capital goods' defined in the CENVAT Credit Rules in the context of providing credit of duty paid, have to be excisable goods. Whether a particular plant or structure embedded to earth can be considered as excisable goods or not has to be determined in the light of the decisions of the Hon'ble Supreme Court on the issue, which is no longer res integra.

(b) Goods like cement and steel items used for laying 'foundation' and for building 'supporting structures' cannot be treated either as inputs for capital goods or as inputs in relation to the final products and therefore, no credit of duty paid on the same can be allowed under the CENVAT Credit Rules for the impugned period.



M/s Asian Paints Ltd Vs CCE, Pondicherry (Dated: March 4, 2010)

Central Excise – CENVAT Credit distribution – there is no restriction under the CENVAT credit rules limiting the distribution of credit of one unit to the other unit – Rule 7 of the CENVAT Credit rules, 2004


M/s Asheerwath Enterprises Vs CCE, Chennai (Dated: March 3, 2010)

Central Excise – penalty equal to the duty – since the penalty equal to duty was imposed under rule 25 of the Central Excise Rules, but not under Section 11 AC of the Central Excise Act, 1944, penalty reduced as the duty and interest without contesting.


M/s Shasun Chemicals And Drugs Ltd Vs CCE, Pondicherry (Dated: March 3, 2010)

Central Excise – Rebate restricted to the FOB value and sanctioned in cash – appellant took the balance duty paid as CENVAT credit suo moto though there was no specific order to do so – as a onetime measure, credit taken is regularized, and token penalty of Rs 5,000/- imposed for violation of rules


M/s Tamil Nadu Industrial Explosives Ltd Vs CCE, Chennai (Dated: November 26, 2009)

Central Excise – goods cleared to depot by paying duty at 20% and duty rate reduced to 18% after clearing the goods to depot – refund claimed as buyer of the goods from depot, Coal India refused to pay duty at 20% - refund consequent to reduction of duty rate to 18% - under the scheme of the law, the “depot” being defined as a ‘place of removal' for the purpose of valuation under Section 4 does not appear to have any relevance for determining the rate of duty applicable to the impugned goods for which, the date of removal from the factory alone appears to be relevant as per provisions of Rule 9A. The authorities below have not dealt with this issue as the show-cause notice did not deal with the same. However, for determining the question of eligibility to refund which is the subject-matter of this case, determination of the applicable rate of duty is a relevant question and the same cannot be ignored – matter remanded.


M/s Versatile Systems Vs CCE, Pune-III (Dated: March 19, 2010)

Bereavement in the Consultant's family a sufficient cause for condoning delay in filing the appeal – COD application allowed and matter remanded to Commissioner(A) with a direction to hear appeal on merits



M/s United Metal Industries Vs CCE, Chennai (Dated: December 3, 2009)

Central Excise – credit on inputs used by the job worker in the manufacture of goods cleared to principal manufacturer – credit reversed initially taken again suo moto – no cause for levying interest or penalty.