cestat ruling (central excise) - tax india online · 2018-10-02 · cestat ruling (central excise)...

CESTAT RULING (CENTRAL EXCISE)

2017-TIOL-1001-CESTAT-DEL

Whale Stationery Products Ltd Vs CCE (Dated: March 7, 2017)

CX - Any relief under doctrine of promissory estoppel can be enforced only in thehands of Courts - Tribunal, which is a creature of the statute, cannot arrogate to itselfsuch powers - Tribunal is required to decide tax disputes on the basis of law and therelevant Notifications issued by the Government - Once it is clear on fact that the areawhere the appellant's unit is located is no more covered under the relevantnotification 50/2003-CE due to amending notification 27/2005-CE, the benefit of area-based exemption cannot be extended - Order confirming CE duty is upheld -Commissioner (Appeals) in the impugned order has also fairly allowed the benefit ofcenvat credit on inputs and capital goods before arriving at the final demand - Appealdismissed: CESTAT [para 7, 8]

Also see analysis of the order


Jaypee Rewa Plant Vs CCE (Dated: February 15, 2017)

CX – Clearance of Cement – Exemption - SWMA (Standard of Weights & Measures Act,1976) and the Rules made thereunder are applicable only to the goods sold within thecountry and not to goods exported out of India - Therefore, RSP(MRP) is not requiredto be printed on such packages of cement exported to Nepal - appellant assessee,even when they print the MRP/RSP on their cement bags exported to Nepal, are notentitled to the benefit of Notification No. 4/2006-CE - appellants also admit that thereis no statutory requirement to declare sale price (RSP/MRP) on the cement bagsmeant for export to Nepal – moreover, goods are being exported to Nepal where theyare sold in Nepalese currency and, therefore, printing of RSP in Indian Rupees onpackages has no relevance at all - benefit of the Notification No. 4/2006-CE has beenrightly denied to appellants - no reason to interfere with the impugned orders,therefore, appeals dismissed: CESTAT [para 6.2, 6.4, 6.5]


Shri Jai Hanuman Vs CCE & ST (Dated: January 12, 2017)

CX - Penalty - Assessee, a Co-operative Society has undertaken to provide watersupply to villagers of village Minache for agricultural purpose - They obtainednecessary certificates from District Collector, Kolahpur and procured pipes under Notfn3/2004-CE without payment of duty - District Collector will be in a position to knowthe details of scheme and has authorized procurement of pipes without payment ofduty, as per requirement - Hence, once the District Collector issued the certificate,after considering water scheme, benefit of notfn should be extended - Imposition ofpenalty is totally unjustifiable and liable to be set-aside: CESTAT


Hindustan Automotive Vs CCE (Dated: December 20, 2016)

CX - Assessee engaged in manufacture of motor vehicle parts with brand name of"Unik Jet" - It was found that M/s Unik Springs (India) Pvt. Ltd., Indore has beenpurchasing various types of automobile parts, all found to be of "Unik Jet", whichbelonged to M/s Friends Auto (India), Faridabad - Lower authorities have disallowedthe claim of small scale exemption as there is mention of their brand name "Unik Jet"which belonged to some one other than assessee - Assessee has applied for grant ofassignment of this brand on 20.4.2005, but the same was granted only on 22.11.2006- Assessee claimed that deed of assignment for use of brand name should be taken tobe valid from 20.4.2005 on which date they had applied for grant of assignment -Appeal allowed in favour of assessee: CESTAT


Goyal Tobacco Company Pvt Ltd Vs CCE & ST (Dated: January 1, 2017)

CX - Whole case of demand against assessee is on the basis of availability of threemachines in premises verified by CX Officers - Demand was confirmed by consideringthese machines as having been used for illicit packing of excisable goods which werelater cleared resulting in non-payment of duty - Main assessee were liable to pay dutyon the basis of number of machines and capacity - Confiscation of unmanufacturedtobacco and seized machines were also ordered with an option to redeem the same onpayment of fines - Adjudicating Authority cannot straightaway rely upon thestatement recorded during the investigation before the central excise officer - If themaker of the statement is examined in chief by the Department, cross examination ofthe said person must be allowed, if sought for by the assessee: CESTAT

2017-TIOL-996-CESTAT-MUM

Hard Castle And Waud Manufacturing Company Ltd Vs CCE (Dated: February3, 2017)

CX - Appellant charged an extra amount of Rs.2 per kg as packing charges in theirinvoices over and above the AV of the product - demand of CE duty made on thesecharges - appellant claiming that the amount of Rs.2 per kg is on account of metalbarrels which are of durable and returnable in nature - differential duty demandconfirmed by lower authorities, therefore, appeal to CESTAT. Held: Terms regardingcharges of Rs.2 per kg and refund of the same in the event of return of metal barrelsby customer are known to the customer - it is settled that even though physically thedurable and returnable packing is not returned, still the cost of the same cannot beadded in the AV - only requirement is that there should be a condition between themanufacturer supplier and the customer that if the durable and returnable packing isreturned, the assessee is under obligation to refund the amount of packing - in viewof the nature of transaction and clear terms and conditions between appellant andcustomer, the packing charge of Rs.2 per kg is not includible in the assessable value -impugned order set aside and appeal allowed: CESTAT [para 4]


Forbes Gokak Ltd Vs CCE (Dated: January 23, 2017)

CX – Valuation – Section 4 of the CEA, 1944 – Inclusion of handling charges in AV.Held: No reason has been given for collection of 0.5 % as handling charges - onlyground mentioned is that while they have collected Rs. 18 lakhs as handling chargesthey have passed on over Rs. 6 crores as discount but this argument has no merit asno law has been cited as to why the said amount of handling charges need not beincluded in the assessable value as the same has been recovered from the buyer –appellants submission that they have in the declaration in 173C(3A) of CER, 1944

declared that they were collecting this amount and, therefore, there is no suppressionis without any basis as upon perusal of the declaration it is noticed that the same isonly with regard to octroi and freight charges and does not cover handling charges –claim of appellant is without any basis, hence dismissed: CESTAT [para 5, 6]


CCE Vs Garware Wall Ropes Ltd (Dated: December 19, 2016)

CX –Valuation - Limitation -Activity of the respondent i.e. manufacture and captiveuse of monofilament yarn in the manufacture of exempted final product and paymentof duty on the same was known to the department - when the goods are clearedcaptively, the valuation of goods is governed by rule 8 of Central Excise ValuationRules, 2000 which is based on the cost construction method - if at all there is anyvariation in the cost, the department was free to issue SCN within the normal periodof 1 year - in the present case, demand pertains to the period September 2002 toMarch 2003 and SCN was issued on 04.10.2004 i.e much after 1 year - in these facts,no suppression of fact can be alleged against the respondent - demand is notmaintainable on the ground of time bar - revenue's appeal is dismissed since being hitby limitation : CESTAT [para 4]


Garg Plastics Vs CCE (Dated: January 3, 2017)

CX - Proceedings were initiated to demand duty from assessee on the ground thatthey were not eligible for small scale exemption in respect of goods manufacturedwith brand name of another person - Assessee did manufacture and clear photoframes with "Archies" brand name which does not belong to them - Delhi High Courtvide order dated 15.02.2012 the noted settlement arrived between assessee and M/sArchies Greetings and Gift Limited and disposed of the suit case - As per theagreement, it is seen that assessee was allowed to manufacture and market photoframes under Trade Mark "Garg Archij" and assessee undertook not to manufacture orsell any product using trade name "Archies" - Assessee did not support their plea inappeal to the effect that they have not manufactured and cleared goods with thebrand name of another person - Overwhelming evidence as recorded by lowerauthorities has not been rebutted effectively by assessee - As such, no reason foundto interfere with findings of lower authorities: CESTAT


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

CX –Appellant manufactures ‘motor vehicles' which are purchased through their dealernetwork by taxi operators who are eligible for exemption from special excise duty(SED) subject to condition specified against serial no.208 of the table in notificationno.6/2002-CE dated 1.3.2002 – upon receipt of certification of registration as taxi, theamount of SED returned to the customers by the dealers are reimbursed by appellantas pre-requisite to claiming of refund and which, under a subsequent notification, wasavailed as credit - appellant is against the alleged inclusion of sales tax element in theamount paid by the customers of motor vehicles sold by the dealers of the appellantwhich was, however, excluded from the assessable value for discharge of liability ofcentral excise duty. HELD: Vehicles are sold to dealers and sales tax liability isincurred and the dealers, in turn, sell the cars to ultimate buyers and the tax collectedfrom them is also deposited in the treasury - appellant is eligible for refund/credit ofthe SED that has also been collected and remitted after grant of reimbursement ofthis amount to the ultimate consumer - there is no allegation that amount of sales taxthat was collected on this component of value of the car has not been deposited in thestate treasury or has been collected back - consequently, the claim of revenue that

this amount is an amount of additional consideration is without basis -furthermore,the Tribunal in the case of Cipla Ltd. has held that that once tax/duty liability hasbeen discharged, eligibility to credit cannot be varied for any reason whatsoever –impugned order set aside and appeal allowed: CESTAT [para 4, 5, 6]

2017-TIOL-982-CESTAT-HYD

Karnataka Metal Company Vs CCE, C & ST (Dated: November 22, 2016)

CX - Assessee allegedly issued cenvatable invoices without actual delivery of goodswhich led to fraudulent availing of credit - Department's allegations based on recordsseized from premises of an employee of the assessee - No raw material found to besupplied by assessee and no discrepancy in records proves that no finished goodscould have been manufactured upon which credit could have been fraudulentlyclaimed - Assessee's employee not made party to the proceedings - Records of buyersand other evidence not submitted by department - Department's evidence incompleteand lacking: CESTAT (Para 8,9,10,11)


Dr Reddy's Laboratories Ltd Vs CC, CE & ST (Dated: September 22, 2016)

CX - Assessee manufactures drugs & drug intermediates and avails credit - Revenuedisallowed credit w.r.t. certain services & demanded reversal along with interest &penalty - Department cannot deny credit on the ground that the services were usedfor personal consumption of any employee of the assessee: CESTAT (Para 1,3)

2017-TIOL-980-CESTAT-CHD

Orient Carbon And Chemicals Ltd Vs CCE (Dated: October 9, 2016)

CX - Assessee was a manufacturer of Insoluble Sulphur - It was later found thatimported capital goods namely Analyzer was not found installed inside the factory andthe machine was also not included in LOP and thus in violation of Rule 2(a) of CCR,2004 - Although the 'capital goods' has been installed outside the factory but thesame has been used in manufacture of final product of the assessee, assessee isentitled to avail cenvat credit on capital goods in dispute: CESTAT

2017-TIOL-979-CESTAT-MAD

Texmo Industries Vs CCE (Dated: October 6, 2016)

Central Excise - advertisement expenses incurred by dealer were on behalf of theappellant to promote sale of the goods, accordingly flow of consideration from thedealer to appellant.

Held: When allegation made, the party alleging has burden of proof to discharge thesame establishing that allegation was based on evidence - no material on record todemonstrate that both the parties made arrangement to dress assessable value of thecleared goods requiring the dealer to incur advertisement expenditure – Appealallowed – (Para 5).


Magnum Steels Ltd Vs CCE (Dated: December 13, 2016)

CX - It is alleged that MS Ingots which were used in manufacture of final product i.e.CTD bass has been cleared without payment of duty - Invoice submitted has notprovided the detail about the duty paid invoice or trader invoice - Statement of thetransporter of impugned goods were not recorded - Revenue failed to proveclandestine receipt of MS Ingots without payment of duty - charge of clandestineremoval of goods is not sustainable: CESTAT


HPCL Vs CCE (Dated: February 14, 2017)

CX – Appellant, a PSU, availed CENVAT credit of Rs.3,65,740/- in respect of ServiceTax paid on services rendered in the premises of their housing society – matter wasadjudicated resulting in confirmation of demand along with interest and equivalentpenalty – as order upheld by Commissioner(A), appellant before CESTAT seekingwaiver of interest and penalty imposed. Held: In view of the Bombay High Courtdecision in Manikgarh Cement - 2010-TIOL-720-HC-MUM-ST holding that ST paid onmaintenance and repair of housing colony is not an eligible 'input service', followingthe same, there is no infirmity in the order as far as the denial of credit is concerned –as for interest, same is compensatory in nature, hence upheld – as appellants are apublic sector undertaking and there are no allegations in the SCN that there is anyfraud or collusion involved, penalty is set aside – appeal disposed of: CESTAT [para 7to 10]


CCE Vs Sandoz Pvt Ltd (Dated: February 24, 2017)

CX - Application for condonation of delay of 128 days in filing cross objection. Held:Reason given by AR that the delay is due to GST training of the officers is acceptable -Delay condoned: CESTAT [para 2, 3]


Yash International Vs CC, CE & ST (Dated: November 18, 2016)

CX - Assessee allegedly availing cenvat credit without having received the goods -Case of the department is mainly based upon few statements and entries found inprivate records of an employee - Statutory records and stocks in the factory at thetime of inspection did not disclose any descrepency: CESTAT


Sri Velmurugan Sago Factory Vs CCE (Dated: October 7, 2016)

Central Excise - Non- payment of differential duty which arose on account of increasein duty rates in "Tapioca Sago".

Held: It is not in dispute that differential duty liability arose on account of increase induty rates on Tapioca Sago - It is also not in dispute that in respect of two of theappellants i.e. appellants M/s. Arulmurugan Sago Factory and M/s.Sri BalamuruganSago Factory, entire duty liability along with interest has been discharged before issueof SCN thereon and in respect of appellant No.1 almost 98% of such liability has beendischarged - It would have been most appropriate if the SCNs had not been issued in

these case - while there is no two opinion that the differential duty has beendischarged by the appellant on being pointed out, along with interest amountsthereon, issue of SCNs for imposition of penalties under Section 11AC is an overkill. -As there no requirement of issue of SCN itself, penalties will not survive - All threeappeals allowed - (Para 5, & 6)


Rashtriya Chemicals And Fertilizers Ltd Vs CCE (Dated: February 20, 2017)

CX - Appellant inter alia manufacturing Methanol and Nitric Acid - Methanol isexempted in terms of notfn. 10/96-CE when used captively in manufacture offertilizers and also exempted by notfn. 67/95-CE when used for manufacture of otherdutiable products - some methanol is used for treatment of effluent in their ETP -Appellant issued demand notice for recovery of credit u/r 57AD of CER, 1944/ rule 6of CCR, 2004 in respect of Menthol catalyst which is an input of Methanol and whichmethanol was used in ETP plant - demand confirmed, therefore, appeal to CESTAT.Held: Once the credit on inputs used in exempted goods stands reversed, the demandfor reversal of 8%/10% amount of value of exempted goods in terms of rule57AD/rule 6 does not sustain - moreover, usage of Methanol in ETP plant was in theknowledge of the department and earlier SCN was issued demanding duty on sludgearising in ETP plant by use of Methanol - therefore, present demands made byinvoking extended period are time barred and not sustainable - impugned order setaside and appeal allowed with consequential reliefs: CESTAT [para 5, 5.1]


Lokesh Machines Ltd Vs CCE (Dated: September 23, 2016)

Central Excise - CENVAT Credit - Non-registration of Head office as ISD or non-mentioning of ISD number on invoices is not fatal to deny credit. Since department'sreport itself reveals that there is no suppression of facts and as assessee is filing ST3returns regularly, invocation of extended period of limitation is not sustainable


India Hume Pipe Company Ltd Vs CCE, C & ST (Dated: November 16, 2016)

CX - Assessee manufactures both dutiable & exempted pipes and captively consumesthem for laying pipelines - They used common inputs for both and did not maintainseparate accounts - Although method of computation used by assessee is flawed, thedepartment has not established suppression of facts or wilful misstatement to avoidpayment of duty - Futher, duty demand barred by limitation as the SCN issued in2007 covers period of 2003-2006: CESTAT (Para 2,6,7)


Executive Engineer (Workshop Div) Vs CCE (Dated: March 7, 2017)

CX - Refund - Stand taken by the Revenue is peculiar - Appellant was made to payduty, by holding that the activity is manufacture, and by allowing credit on inputs,however, after the Tribunal held in favour of appellant, the duty is required to berefunded - as appellant no longer undertakes any activity requiring payment of exciseduty, no useful purpose will be served by allowing re-credit into the MODVAT creditaccount - there is no prohibition under CEA, 1944 or the rules made there-under forcash refund of duty paid by utilization of MODVAT/CENVAT credit - Section 11B of the

CEA does not make any distinction between duty paid in cash and that by utilization ofcredit - in view of the fact that the appellant is not in a position to utilize the credit,the refund is to be paid in cash - impugned order set aside and appeal allowed:CESTAT [para 6, 7]



Avtec Ltd Vs CCE (Dated: March 1, 2017)

CX – Valuation – Section 4 of the CEA, 1944 - Money value of technical know-how,drawing, design provided by FIPL to appellant for the manufacture of power units forFIPL needs to be added in the AV for CE duty purposes – quantification has to be doneon factual and rational basis as ordered by Tribunal in Final Order dated 29.09.2016 inappellants own case - First Appellant is not in the picture with reference to royaltypayment for the whole vehicle by FIPL to FORD, USA in terms of the agreementbetween these two parties – situation is also revenue neutral - In such situation, it isnot correct to allege that appellant intentionally suppressed or mis-represented anyfacts relating to additional considerations to be added in the value of power units -demands beyond normal period is set aside - No malafide or fraudulent intent can beattributed to the appellants considering the facts and circumstances of the case,therefore, penalty u/s 11AC of CEA, 1944, rule 26 of CER, 2002 is not imposable –Appeals disposed of: CESTAT [para 5 to 8]



Kannappan Iron And Steel Company Pvt Ltd Vs CCE (Dated: September 19,2016)

Central Excise - Valuation- Related party Transactions which attract section 4 (1) (b)of the Central Excise Act, 1944, read with Section 4 (3) (b) thereof - Both the sidesagree that Rule 9 of the said Valuation Rules is applicable - Rule 9 requires thatreasonable means consistent with the principles and general provisions of valuationrules read with section 4 (1) of the Central Excise Act, 1944 is to be followed -Adjudicating authority has to re-determine the value of the related party transactionsin accordance with law - appellant entitled to know the methodology - Appeal isremanded to the adjudicating authority - (Para 2, & 3)


CCE Vs Thour Steels Industries (Dated: August 8, 2016)

CX - It is alleged that assessee being a dealer of scrap did not supplied the goods andoniy issued cenvatable invoice to the buyer manufacturers - No investigation has beendone at the end of transporter to find out whether the goods in question have beentransported to buyer manufacture's place or not - No corroborative evidence has beenproduced by Revenue in support of its claim - No infirmity found in impugned order,same is upheld: CESTAT


Inderjit Sons Enterprises Pvt Ltd Vs CCE (Dated: September 16, 2016)

Central Excise – Cigarette manufacture – Clandestine removal –Manufacturing unit in

question is under physical control of the Central Excise Department – Question of saidunit is engaged in the manufacture of clandestine production and removal of thegoods does not arise – Demand raised merely on presumption that certain dealers inwhose custody similar goods found could not explain the source of procurement of thegoods without payment of duty, is wholly unjustified as such is unsustainable.

The appellants were working under the physical control of the Central Excisedepartment. The investigation was conducted at the end of various dealers who werehaving stock of brand Seven-10. The appellant is not manufacturing cigarettes ofSeven-10 brand and they are only manufacturing the cigarettes under the brandname Fursat. The demand has been raised on both brand names against theappellants on the premise that the dealers in whose custody the goods found couldnot explain the source of procurement of the goods without payment of duty. In fact,the appellant is under physical control of the Central Excise Department. Therefore, itcannot be alleged that the appellant is engaged in the manufacture of clandestineremoval of the goods. Impugned order deserves to be set aside. Appeals are allowedwith consequential relief. (Para 6, 7)


Indian Shaving Products Ltd Vs CCE (Dated: November 22, 2016)

CX – Valuation – Period 1.10.96 to 19.2.98 - Appellants, engaged in the manufactureof razor blades removed the same from the factory gate to Central Storage Point(CSP) and from here the goods were transferrred to various depots, wherefrom thegoods were sold to retailers - appellant had claimed deductions from the assessablevalue of freight, insurance, octroi sales tax and central excise duty on equalized basisbut the same were denied on the ground that no supportive documents werefurnished – appeal to CESTAT against order of Commissioner (A). Held: It appearsthat a list of documents was produced before the adjudicating authority and there is astamped acknowledgement – When the required information was submitted by theappellant to the adjudicating authority and the same was not considered in theappeal, Bench deems it fit to remand the matter to the Commissioner (Appeals) toexamine the said evidence and decide the issue de novo but by providing reasonableopportunity to the appellant-assessee - appeals allowed by way of remand: CESTAT[para 9, 10]


Muskan Polymers Vs CCE (Dated: November 17, 2016)

CX - Assessee buys raw plastic sheets and cut, prints & laminates/metalize them asper requirement of their customers and availing cenvat credit on inputs - Demand &penalty imposed on the ground that prior to 01.03.08 the process did not amount tomanufacture and that credit has been irregularly availed - No logic in disallowing partof the credit on the ground that it has not been utilized prior to 01/03/2008 -Assessee was under bona fide belief that the process amounted to manufacture andso took registration, paid excise duty and availed credit - Assessee can utilize thiscredit taken prior to 01/03/2008 for paying the duty on the products which havebecome excisable after 01/03/2008: CESTAT (Para 2, 5, 6)


Kumar Power Products Pvt Ltd Vs CC & CE (Dated: September 15, 2016)

Central Excise - SSI Exemption - appellant was engaged in the manufacture of copperwinding wires wound on plastic spool affixed with “ARPEE” label whose Director is acommon director in ARPEE Electrical - The department viewed that they were not

eligible for SSI exemption on account of ARPEE label which did not belong to them -Duty demand with interest and penalty adjudicated and agitated before the Tribunal,who reduced the penalty - subsequent ROM application was rejected - meanwhile thedepartment filed criminal case against the appellant firm, and individuals for wrongavailment of benefits of notification 175/86 as amended, for affixing brand name ofother person who is not eligible for such benefit - High Court of Andhra Pradeshquashed the prosecution launched against aforesaid persons - the appellantsubsequently filed various applications before Tribunal including application forrestoration of Reference Application, ROM application, Misc applications - the Tribunalremanded the matter to Commissioner (Appeals) to consider the appellants case byfollowing the principles of natural justice, who, however, vide the order impugnedherein, dismissed the appeal.

Held: Commissioner (Appeals), held that on all issues involved has been settled at thehighest forum leaving no scope for reconsideration - the Civil Appeal before SupremeCourt on 24-07-1997 stating that there was no communication from Tribunalregarding ROM and Reference application filed was dismissed at the stage ofadmission itself, without assigning any reason - there is merit in the appellant'sgrievance that all the submissions placed before the lower appellate authority has notbeen taken cognizance of or has not been otherwise properly considered and that thelower appellate authority has not given any reason for rejecting the request ofappellant that the matter be remanded to original authority - matter deserves to beremanded to the original authority who shall give a personal hearing to the appellantand consider his contentions that they will not fall in violation of SSI notification atmaterial time, especially with respect to branded goods and also whether there hasbeen any suppression of facts not within the knowledge of the department. [Para 7-9]


Harinagar Sugar Mills Ltd Vs CCE (Dated: January 27, 2017)

CX – Appellant is a manufacture of biscuits on job work basis on raw materialssupplied by M/s Britannia Industries Ltd. – M/s BIL has issued debit notes on appellanton account of variation in consumption of inputs in the manufacture of biscuits –department has construed this as shortage of inputs and accordingly confirmeddemand of proportionate cenvat credit – appeal to CESTAT. Held: Issuance of debitnote does not show that appellant has neither received the input or diverted outsidethe factory – No verification carried out by department – no sufficient reason fordenial of credit – order set aside and appeal allowed: CESTAT [para 4, 5]


Hem Industries Vs CCE (Dated: December 30, 2016)

CX – Demand of duty from appellant for having manufactured 'tractor-trailors' bearingthe brand name 'Ishan' belonging to Hem Agro Industries Ltd.– allegation that, evenas job worker, appellant are manufacturers and the manufacture of 'Ishan' brand'tractor-trailors', in addition to their own brand 'Aakar', rendered those clearances tobe ineligible for SSI exemption under notification no.1/93-CE dated 28.2.1993. HELD:Claim of appellant to be a job worker not tenable as the purported principal Hem AgroIndustries is devoid of a manufacturing facility and cannot claim to be a manufacturerengaging a job worker for rendering a part of the manufacturing process – in theabsence of compliance of notification nos.83/94-CE and 84/94-CE, this manufacture isnot job work so as to be excluded from the clearances that are entitled to exemptionor concession - that intent to evade duty did motivate all action of the appellant wouldbe apparent from the lack of awareness of the exemption notifications - there is noflaw, therefore, in invoking the extended period - invoking of penalty under rule 173Qof CER, 1994 is proper -impugned order fairly conceding grant of cum-dutycomputation of assessable value tempered the order of the original authority by

setting aside certain penalties and dropping of some others – no reason found tointerfere with the impugned order – appeal rejected : CESTAT [para 7, 9, 10, 11,12]


JB Mangharam Foods Pvt Ltd Vs CCE (Dated: November 9, 2016)

Central Excise – Biscuit manufacture – Cenvat credit–Packing materials, plastic scrapand oily cotton canvas removed as waste and scrap found to be neither inputs norgenerated during manufacturing of final product– No duty is required to be paid orCenvat credit to be reversed – Thus duty demand on these items is unsustainable –However, since the appellant has not produced adequate documents to prove that noCenvat credit was taken on iron and steel items removed as scrap, to that extentmatter is remanded – Absent malafides penalty imposed under sec.11AC is set aside.

Packing waste cannot be treated as arisen out of any manufacturing process and noduty is required to be paid / Cenvat credit to be reversed. Thus, duty demand on thepacking material is liable to be set aside. With regard to oily cotton canvas, whichwere removed in the form of scrap, cannot be considered as input for the appellant,who manufactures biscuits. Thus, said goods are not the input for the appellant. Thus,removal of such goods as scrap will not attract payment of central excise duty/reversal of Cenvat credit. Similar is the case with regard to the wooden scrap namely,doors, windows, iron rods etc., which have no relation with the manufacture of thefinal product and obviously there was no scope on the part of the appellant to availthe Cenvat credit. Thus, duty liability cannot be fastened on removal of those goodsas waste and scrap.

With regard to plastic scrap, the same were generated during the course ofmanufacture/ packing of the final product. Since, initial procurement of plastic was notinput as such and was not generated during the course of manufacture of the finalproduct, on removal of the same as waste and scrap, no duty is required to be paid.

However, as the appellant has not produced adequate documents to demonstrate thatno Cenvat credit on iron and steel items removed as scrap were taken by theappellant. The matter should go back to the original authority for verification ofrecords/ documents maintained by the appellant. If the appellant able to convince theoriginal authority that no Cenvat credit has been taken on the aluminum/ steel itemsremoved as scrap, no demand shall be confirmed against the appellant on removal ofthose goods.

The lower authorities have invoked Section 11AC of the Central Excise Act, 1944 forimposition of penalty. Since, the information were gathered by the department fromthe balance sheet of the appellant, no malafide can be attributed, justifying impositionof penalty under Section 11AC ibid. Therefore, the penalty imposed in the impugnedorder is set aside. (Para 6-10)

2017-TIOL-942-CESTAT-AHM

Madhusudan Industries Ltd Vs CCE (Dated: January 16, 2017)

CX - Allegation of the Department is that after imposition of levy with effect from01.3.2003, the appellant had cleared branded Vanaspati in the guise of unbrandedone, which attracted nil rate of duty - Revenue relied on statements of customers whopurchased the vanaspati as well as statement of Transporter - demand confirmed byCCE, Ahmedabad - appeal to CESTAT.

Held: While looking into the records, Bench finds that the panchanamas, statements

by the appellant are illegible and some of the statements are in vernacular language(Gujarati) and not translated ones leading to difficulty in considering the groundsraised in assailing the impugned order - transporter challans, invoices etc. are notreadable - Since the matter is of 2006, Bench does not see any reason to keep theappeal pending and, therefore, the appeal is dismissed as non-maintainable -However, appellant is at liberty to revive their appeal after fling legible copies of thedocuments, translated statements, legible copies of the transporters challans, invoicesetc. within a reasonable period of time, as per law - Appeal dismissed: CESTAT [para2, 3]


CCE Vs Genus Power Infrastructure Ltd (Dated: February 9, 2017)

CX – Without the fact of clandestine removal being on record, it is not legal to disallowcenvat credit on inputs, if the same had been received by assessee-appellant in thefactory: CESTAT [para 8.1, 9.2, 10]



CCE Vs Hi Tech Abrasives Ltd (Dated: October 7, 2016)

Central Excise – Clandestine clearances - assessee is a manufacturer of iron and steelitems such as steel shorts, CI shots and MS ingots etc. - departmental officers visitedtheir factory, verified inputs as well as finished products and found shortages;investigated / examined records and concluded that the assessee has cleared inputson which Cenvat credit have been taken as well as some finished productsclandestinely without payment of duty – demands confirmed in adjudication withinterest and penalty, set aside by Commissioner (Appeals), and agitated by Revenueherein.

Held: The verification of stock of raw materials as well as finished products resulted inshortages detected in the stock of raw materials as well as finished products - Themanner of stock taking was to the satisfaction of the Director who was presentthroughout the proceedings; who admitted the shortages - the duty due on rawmaterials as well as the finished product found short stand already paid - Severalloose sheets as well as six private note books have been recovered, and the entiredemand is based on the entries found in the note book as well as on the confessionalstatement of the Director, who was shown the reconciliation worksheets / charts - theDirector has admitted that the notebooks contained details of clearances of rawmaterial and finished products (both on payment of duty and otherwise); receipt ofunaccounted raw materials; and clearances listed out in the charts as having beenmade without payment of duty - the statement of Director is the basis for thedemand; it is inculpatory and is specific -the Commissioner (Appeals) has erred intaking the view that there is not enough evidence of clandestine removal of goods.[Para 12-15]

The evidence of clandestine clearance has been brought on record only as a result ofinvestigation undertaken by the department - Therefore this is a clear case ofsuppression of facts from the department and the extended period of limitation isinvocable - the Commissioner (Appeals) order setting aside the demand is not proper,inasmuch as the demand is based on evidence which stands admitted by Directorbased on private records recovered from the assesses' factory - There is nothing onrecord to the effect that statements relied upon have been extracted under duress -duty also stands demanded only on those clearances which are not covered byinvoices - the impugned order is set aside. [Para 16, 18, 19]


CST Vs India International Centre (Dated: January 2, 2017)

CX - Revenue alleges that assessee not eligible for SSI exemption under Notfn.8/2003 as turnover exceeded Rs. 300 lakhs - Assessee supplying items that arebought out as well as prepared in kitchen - Revenue has wrongly clubbed sales ofboth to deny exemption - Revenue has not determined value of food prepared inkitchen and has not quantified the correct figures: CESTAT (Para 1, 5, 6)


Indo Micronutrients Pvt Ltd Vs CCE (Dated: February 9, 2017)

CX – Rule 10A of Customs Valuation Rules, 1988 - Valuation of Ingots cleared by100% EOU into DTA - transaction value as declared by the appellant was rejected bythe Revenue on the ground that in case of Copper ingots the London Metal Exchange(LME) price is higher than what is declared by the appellant and in case of brassingots, the price is less than the import value of brass scrap from which such ingotswere manufactured – appeal to CESTAT. Held: A comparison cannot be madebetween the ingots manufactured from ore and the ingots manufactured from scrapas both will vary in quality and value - No attempt has been made by the Revenue toexamine the contemporaneous price of similarly situated market in India, so that acomparison could have been made for examining the correctness of transaction valueadopted by the appellant - Whole proceedings for demanding differential duty wassolely on the ground that LME price of copper ingot as well as tariff value for import ofbrass scrap which were much higher and accordingly, the transaction value is held tobe not correct – Bench is unable to appreciate the legal basis of such assertion –impugned order is unsustainable, hence set aside – appeal allowed: CESTAT [para 5,6]


CCE Vs Mahanagar Telephone Nigam Ltd (Dated: January 5, 2017)

CX - Issue is whether erection and installation of bought out goods for setting up BaseTrans-receiver Station (BTS), Base Station Controller (BSC) erected at site isexcisable goods and liable for duty or otherwise. Held: Issue is no longer res integra -Tribunal has held in MTNL - 2016-TIOL-2832-CESTAT-MUM , BPL MobileCommunication Ltd. - 2005-TIOL-923-CESTAT-MUM , 2007-TIOL-809-HC-MUM-CXthat BTS/BSC erected/installed at site cannot be construed as marketable goods asthey are embedded in earth or on a building and cannot be shifted without damage -Revenue appeal dismissed: CESTAT [para 3]


KSM Industries Vs CCE (Dated: September 29, 2016)

Central Excise – SSI exemption – brand name - Appellant failed to discharge theburden of proof that it belonged to appellant – in absence of any cogent reason andevidence adduced, maintained the adjudicating authority order – No reason to disturbthe finding – Appeals failed to the extent of usage of brand name – Appeals dismissed– (Para 4).


Maxocrete Equipments Vs CCE (Dated: January 24, 2017)

CX - Assessee engaged in manufacture of Kerb Paver, Concrete Mixer Plant & MobileConcrete Mixer - In assessee's factory premises, another manufacturing unit has beenallowed to function by a rent agreement - It was alleged that both the units wereoperating from same premises and using common infrastructure facilities, therefore,clearance value of both the Units be clubbed in considering SSI exemption - Even

though Commissioner (A) recorded the objection of assessee at the time of personalhearing on issue of clubbing of clearances of both the units, but, she has not recordedany finding on issue whether it could be maintainable before her or otherwise -Therefore, the matter needs to be remitted: CESTAT


Puneet Steels And Alloys Pvt Ltd Vs CCE & ST (Dated: March 8, 2017)

CX - When the main basis of the proceedings alleging clandestine removal of MS Barsresulting in the impugned order of demanding CE duty viz. assessment order ofCommercial Taxes Department, Jaipur has been set aside by Rajasthan Tax Board,Ajmer, the CE case has no legs to stand - impugned order is also liable to be set asideonly on this reason of unexplained delay of 9 years after completion of personalhearing - There is no single piece of evidence of any movement of unaccounted rawmaterial, finished goods, receipt of sale proceeds and above all, any identified buyerof such unaccounted finished goods - When the case against the main appellant itselfcannot be sustained, the demands against the manufacturers of MS Ingots are inmuch more than weaker ground - Orders demanding CE duty on MS Bars and MSIngots set aside and appeals allowed: CESTAT [para 5 to 9]


2017-TIOL-928-CESTAT-ALL

CCE, C & ST Vs Impetus Infotech (India) Pvt Ltd (Dated: January 20, 2017)

CX - Assessee was providing IT enabled services to overseas clients - It was granted100% EOU status and was located in STPI - Assessee could not utilise the CenvatCredit on inputs and input services utilised in business of export of IT enabled services- Refund of unutilised Cenvat credit was applied - Relying on the decision of KarnatakaHigh Court in case of mPortal India Wireless Solutions Private Ltd. 2011-TIOL-928-HC-KAR-ST , Tribunal granted the refund for the period when the assessee was notregistered with the Service Tax Department and also even when the service providedwas not taxable, during the relevant period - Adjudicating authority is directed togrant the refund within a period of 45 days along with interest as per rules: CESTAT

2017-TIOL-927-CESTAT-BANG

Hunsur Plywood Works Pvt Ltd Vs CCE (Dated: August 17, 2016)

Central Excise - CENVAT Credit - Prior to 13.11.2007, no liability to reverse the creditavailed on capital goods when they are removed without payment of duty after beingused, since the proviso instituting such liability on clearance of used capital goods wasintroduced to CCR on 13.11.2007.

Revenue demanded reversal of the credit availed on capital good cleared on10.4.2007 without payment of duty after being used for a year - Appellant'scontention that during the relevant period, there is no provision requiring reversal ofcredit either in full or on depreciated amount on removal of used capital good, istenable - Precedent judgments of jurisdictional High Court have held that prior to13.11.2007, i.e., the date on which the law was amended vide Notification No.39/2007 introducing liability to reverse the credit on removal of used capital goods,there was no liability for reversal of credit on removal of used capital goods - Till13.11.2007, there was no provision requiring such reversal of credit, which is evidentfrom the fact that in CCR, 2004, the proviso introducing such liability was addedmaking the position clear which was not cleared in the earlier provision - Since, theclearance was on 10.4.2007, i.e., prior to 13.11.2007, no liability on appellant toreverse the credit - Moreover, extended period is not invocable as there is no

suppression of facts - Hence, impugned order set aside on merits as well as onlimitation - Appeal allowed. [paras 1, 2, 4, 4.1, 5]


Grauer And Weil India Ltd Vs CCE,C &ST (Dated: December 29, 2016)

CX - Assessee had availed CENVAT credit on Input/Input service invoices - Eventhough the impugned invoices were serially numbered but serial number was initiallyhand written - Subsequently, assessee got it rectified by printing said serial numberwith franking machine which has been endorsed by respective Input/Input servicesupplier - There is no reason to deny credit availed on basis of Input/Input serviceinvoices which were earlier not pre-printed or printed with franking machine, but laterduly corrected: CESTAT


Jain Irrigation Systems Ltd Vs CCE & C (Dated: February 28, 2017)

CX - Notification 3/2004-CE - Where certificates are the qualification for exemption, itis not open to the central excise authority to overrule that certification - nature of theproject to which the exemption is extended, if certified by the authority specified inthe notification, cannot also be questioned by taxing authorities that are notconversant with such projects -Impugned order denying the exemption set aside andappeal allowed: CESTAT [para 8, 9]



CCE Vs Surindra Engineering Co Pvt Ltd (Dated: December 19, 2016)

CX - Valuation - section 4 of the CEA, 1944 - Respondent is engaged in themanufacture of MS pipes - Customers (Central/State and semi-government bodies)are arranging third party inspection of the goods at respondent's factory for which, inmost of the cases, payment for such inspection charges is made by the customerdirectly to the inspection agency - In few cases, appellant is making payment to theinspection agency on behalf of the customer and subsequently getting thereimbursement -department alleged that inspection charges should be included in theassessable value, however, Adjudicating authority dropping demand, therefore,Revenue in appeal.

Held: Inspection is a contract between the inspection agency and the customer andthe payment transactions are invariably made between both of them - the inspectioncharges paid by the respondent cannot form part of transaction value as the subjectamount is not paid or payable on account of sale of the goods - in view of the clearfinding of the Commissioner in the impugned order, no infirmity found therein-revenue's appeal dismissed : CESTAT [para 5, 6, 8, 9]


Medispray Laboratories Pvt Ltd Vs CCE (Dated: January 16, 2017)

CX - Valuation of physician samples manufactured and supplied either on principal toprincipal basis or on job work basis - appellant paying duty u/s 4 of CEA, 1944 ontransaction value - department contending that in terms of Board's Circular

No.619/10/2002-CX dated 19.2.2002, the valuation should be done under rule 4 ofthe CE Valuation Rules, 2000 (CEVR) - differential duty demand confirmed and sameupheld by the Commissioner (Appeals) - appeal to CESTAT.

HELD: Appellants are manufacturing physician samples on behalf of the buyers eitheron job work or on principal to principal basis - rule 4 of CEVR shall apply only in thosecases where the manufacturer is manufacturing the physician samples and theythemselves are supplying free samples in the market -appellants are not supplyingphysician samples free of cost - in such a case, the valuation shall be governed bysection 4 of the Central Excise Act - in case of job work, the value should be in termsof principles laid down by the Supreme Court in the case of Ujagar Prints - 2002-TIOL-03-SC-CX - as regards the physician samples manufactured and sold by Okasa Pvt.Ltd. to their principal, the transaction is on principal to principal basis, therefore,whatever goods are sold by the appellant to their principal is correct transaction valuein terms of section 4 of the CEA - in both types of clearances, in any circumstances,rule 4 of CEVR shall not apply - valuation proposed by the revenue is incorrect anddemand confirmed on that basis is not sustainable - impugned orders set aside,appeals allowed : CESTAT [para 5.1.,5.2, 6]


Inga Laboratories Pvt Ltd Vs CCE (Dated: January 27, 2017)

CX - CENVAT - Common inputs used for manufacture of dutiable and exemptedmedicaments - Appellant reversing proportionate credit based on consumptionmentioned in bin cards - demand issued u/r 6 of CCR for recovery of 8% amount ofthe value of exempted goods. Held: Procedure followed by appellant of reversal ofcredit based on batch records/bin cards is proper - appeal allowed: CESTAT [para 5] -


Hindustan Petroleum Corporation Ltd Vs CC (Dated: September 30, 2016)

Central Excise - Right of refund once accrued and not reversed by a higher court, it isundeniable - Revenue says that the assessment was not challenged.

Held: After the appellate order, no assessment order survives - Doctrine of mergerapplies and the order of the adjudicating authority has already merged with the orderof the appellate order - Accordingly, refund to the appellant is admissible andauthority shall act accordingly - (Para 3).


ACE India Vs CCE (Dated: March 7, 2017)

CX - Appellant is engaged in importing shampoo and scalp cleanser (under brandname 'Helsinik Formula') and Body Gel (under the brand name ‘Allure') in bulk packsof 50/100 kilos from Infotainment Inc. of USA and was thereafter selling the goodsafter packing them in retail packs to M/s Telebrands (India) Ltd. who in turn weremarketing and selling these products -Department concluded that since the goods arecleared with the brand name of other entity, SSI exemption cannot be granted to theappellant -appeal to CESTAT.

Held: Commissioner (A) in para 18 of the impugned order has observed that "the saidbrand is not registered in the name of any person/firm/company during the relevantperiod, accordingly no one is the owner of the said brand" - Even as per SCN, it is amatter of record that the impugned brand name does not belong to any one and no

evidence contrary to this has come on record during the course of investigation -Board has also clarified in Circular No. 52/52/94-CX dated 1.9.1994, para 4, that "if abrand name is not owned by any particular person, the use thereof will not deprive aunit of the benefit of the small scale exemption scheme"-impugned orders, therefore,cannot be sustained, hence set aside -appeals allowed: CESTAT [para 4, 5, 8]


Icon Industries Vs CCE (Dated: March 8, 2017)

CX - Clandestine manufacture and removal of PVC Battery separators - Originalauthority confirmed Central Excise Duty demand of Rs.54,09,363/- and imposedpenalty of equivalent amount u/s 11AC of CEA, 1944 - Appellant paid full duty liabilityalong with 25% of the said penalty - Prayer in the present appeal is only restricted toavailability of CENVAT Credit on the PVC resin used by the appellant in themanufacture and clearance of battery separator, on which duty liability has beenconfirmed and paid.

Held: While the Revenue established the receipt of PVC resin by the appellant,nowhere in the findings any documents were noted, indicating that such receipt isbased on due documents and more importantly PVC resin procured by the appellantunit is on payment of said CV Duty to the importer - Cenvat Credit on PVC resin canbe allowed to the appellant either on the documents in his possession indicating theduty paid purchases of such raw material or the document (like Bill of Entry) whichare endorsed by the importer in terms of Rule 9 of the CCR, 2004 - In the presentcase, admittedly there is no documented transaction between M/s. Marvelous Impexand the appellant - Hence, the question of duty paid receipt of PVC resin by theappellant cannot be established - Bench also notes that the plea by the appellant thatthe importer firm is also owned by the proprietor of appellant firm and hence CENVATCredit on the raw material should be allowed has no legal basis in such assertion -Cenvat Credit can be availed only on documented receipt of duty paid inputs wherethe receipt for such duty payment on such raw material form evidence in terms ofRule 9 of CCR, 2004 - In the illicit transaction involving the raw material PVC resin,the question of having any documented receipt of such raw material and moreimportantly, duty payment of such input cannot be established - appeal is dismissed:CESTAT [para 6, 8]


L And T Valves Ltd Vs CCE (Dated: October 13, 2016)

CX - Outdoor Catering Service availed by assessee were meant for its employees in itsfactory to discharge obligation under Factories Act, 1948 - Authority shall computequantum of cenvat credit inadmissible on recovered part from cost of OutdoorCatering Service provided to employees - On the rest of part, claim of Cenvat credit isadmissible - There shall be no penalty since due to series of confusion in minds ofindustry: CESTAT


Sukrut Founders Vs CCE (Dated: November 18, 2016)

CX –Appellants defaulted monthly payment of excise duty – during the default period,appellants cleared the goods and paid duty from cenvat account on monthly basis –SCN issued and duty confirmed along with interest and equal penalty - Commissioner(Appeals) reduced the penalties to Rs.1 lakh each – appeal to CESTAT. HELD:Appellants have discharged duty on the clearances made during the default period but

the only lapse was they were supposed to pay duty through PLA on consignment basis–thus, it cannot be said that the appellants had any intention to evade payment ofduty -for this lapse, penalty cannot be imposed under rule 25(1)(a) of CER, 2002butunder Rule 27 – penalties reduced from Rs.1 lakh each to Rs.5,000/- each - impugnedorder stands modified : CESTAT [para 4]


CCE Vs Shah Alloys Ltd (Dated: January 2, 2017)

CX - Assessee availed credit on furnace oil used for generating electricity - Revenuealleged that some furnace oil was used in fabrication of fixed assets, and duty demandfor recovery of credit was imposed - Revenue has not considered CA's certificatesstating that furnace oil was not used for fabrication of structure - Also, revenuecannot say that such argument was raised for the first time: CESTAT (Para 3, 7, 8)


Panyam Cements And Mineral Inds Ltd Vs CC, CE & ST (Dated: September 9,2016)

CX - Assessee company manfactures cement and availed credit on TMT bars / MS bars/ TOR steels used in construction of RCC pillars for expanding their factory - Further,assessee availed 100% credit in same FY - SCNs issued to recover credit availedwrongly - Iitems on which credit was availed were highly essential for manufacturingprocess in assessee's factory - Goods covered under definition of 'input' - Further,denial of credit unjustified - Assessee liable to pay interest for irregular availment:CESTAT (Para 1,5,6)


Cipla Ltd Vs CCE (Dated: February 24, 2017)

CX - Appellant is not liable to reverse CENVAT Credit on the inputs already used in themanufacture of final product when it was dutiable but lying in stock as on 01.03.2002when final product became exempted as well as not required to reverse the CENVATcredit on the inputs lying is in stock as on 01.03.2002 but subsequently used inmanufacturing final product which was cleared for export under bond/undertaking -Appeal allowed with consequential relief: CESTAT [para 5.1, 5.2, 5.3]



Rolls Pack Vs CCE (Dated: February 23, 2017)

CX - Cutting and slitting of aluminium foils of jumbo size into smaller size is nottaxable - Appeal allowed: CESTAT [para 6]



Sundaram Fasteners Ltd Vs CCE (Dated: October 13, 2016)

Central Excise - CENVAT Credit - Input services credit availed of tax paid on auctioneerservice; sub-contractor; and ISD denied, and agitated herein.

Held: The scrap generated in the course of manufacture had caused congestion ofspace obstructing manufacturing activity, necessitating availing of auctioneer service,same admissible in terms of the Sundaram Clayton ruling - no dispute as to genuinityof the service provided to appellant, utilization of service provided by sub contractor,and service tax paid; hence impugned credit admissible - So far as non-availability ofparticulars for verification of ISD credit is concerned, this aspect is remanded to theadjudicating authority to cause verification of the particulars; the outcome thereof shallbe provided to appellant and considering defence plea, appropriate order shall bepassed granting reasonable opportunity of hearing. [Para 2, 3, 4]


Gaurav Agro Plast Ltd Vs CCE & ST (Dated: January 29, 2017)

CX - Assessee engaged in manufacture of plastic moulded furniture - Assessee filedprice lists and claimed various discounts - Demand with penalty was imposed based onrevenue's allegation that discounts availed by assessee were not fully passed onto thecustomers - Assessee has procured letters from various customers, acceptingknowledge of cash discounts through receipt of Business Circular - These needs to beexamined by revenue - Further, admissibility of cash discount and deduction for freightrequires re-examination: CESTAT


Meghmani Organics Ltd Vs CCE (Dated: January 27, 2017)

CX - Duty demand with penalties & interest imposed on the appellants - Substantialpurchase of raw materials from the domestic market by the assessees not consideredby revenue - Assessees not given sufficient opportunity to prove that conditions ofNotfn. 8/97-CE had been fulfilled by them - Assessees deserve opportunity forpresenting documents & evidence - Matter remanded for de novo adjudication: CESTAT


Sun Pharmaceuticals Industries Ltd Vs CCE & C (Dated: January 2, 2017)

CX - Assessee engaged in manufacturing pharmaceuticals and availed CENVAT crediton capital goods and raw materials, imported in the name of their 100% EOU - CHAmade mistake in submitting the Bills of Entry - Also several GRNs & transport challansnot signed by assessee to prove whether goods received in factory - Matter remandedfor verification & penalties set aside: CESTAT


Tabrej Exports Vs CCE & C (Dated: January 19, 2017)

CX - Appeal dismissed owing to non-appearance of counsel for appellant: CESTAT


Adani Gas Pvt Ltd Vs CCE & ST (Dated: January 30, 2017)

CX - Assessee manufactures CNG at three locations which are designated as 'motherstations' - CNG is then sold/distributed through different locations called 'daughterbooster stations' - Assessee's main contention is that CNG requires to be re-pressurized at the 'daughter boosting stations' before it can be transfered to the

customers & thereby merits cenvat credit for 'daughter station'.

Held - The contention that all inputs/capital goods that are used till the sale of themanufactured goods, would be eligible to CENVAT Credit, viz. machinery in 'daughterstations', would mean re-writing the definition of 'input' and 'capital goods' which is notin consonance with the principle of statutory interpretation - Further, assessee couldnot bring out any particular rule of CCR 2004 in which the defined expressions 'input'and 'capital goods' could be read differently - The meaning of 'input' and 'capital goods'cannot be changed and read differently depending on the nature of rawmaterial/finished goods, which will lead to absurdity and chaos in the administration ofthe CENVAT credit scheme - Moreover, it is not in all cases that the pressure of the gasfalls, and so requires re-compression - Therefore, re-compression at daughter boosterstations cannot be interpreted as resulted into manufacture of CNG merely on basis ofmarketability - Assessee not eligible to CENVAT Credit of duty paid on dispensers,mobile cascades, stationary cascades, compressors and spare parts installed & used attheir daughter booster stations: CESTAT (Para 5,7,8,10,11,13,14,15,17,18)


Alstom India Ltd Vs CCE, C & ST (Dated: December 27, 2016)

CX - Assessee is a manufacturer of Hydro Turbine, Electrical Generator and part - Itwas observed that assessee availed inadmissible Cenvat Credit on Input Services - STpaid in relation to "Outdoor catering Service" is covered under scope of "InputServices" as defined under Rule 2(l) of CCR, 2004 - Hence, in principle credit isadmissible on the said input service - Since, the assessee agreed to reverse the creditavailed for the period under consideration, the matter is remanded to the adjudicatingauthority for the said limited purpose of ascertaining the amount of credit involved forthe period April 2011 to June 2011: CESTAT


CCE Vs Shri Bankey Brass Products (Dated: January 18, 2017)

CX - Assessee engaged in manufacturer of untrimmed and trimmed Brass Sheets andCircles - Scraps generated during manufacturing was attracting nil rate of duty -According to revenue, untrimmed circles and sheets of brass were not eligible to enjoybenefits of Notfn 67/95 - SCNs were issued, demanding CE Duty on untrimmed brasssheets and circles and penalty was imposed - Relying on decisions of cases, it was heldthat circles manufactured by assessee are made from brass, therefore, assessee wouldbe entitled to claim nil rate of duty under said Notification: CESTAT


Shivam Petro-Chemicals Pvt Ltd Vs CCE (Dated: November 11, 2016)

CX - Remission of duty - Claim of remission of duty was rejected by AdjudicatingAuthority holding that assessee have not provided the details thereof - Duty was alsodemanded on account of Cenvat Credit availed on inputs which were destroyed in fireas such - Reading of rules under which remission is granted in respect of goods whichwere lost or destroyed by natural cause or by natural accident, does not provide anycondition regarding reversal of credit taken in respect of inputs used on such goods -Assessee is not required to reverse Cenvat Credit availed by them and inputs lost infire as such or gone in manufacturing process - Therefore, impugned orders are notsustainable: CESTAT


CCE Vs Update Prints India (Dated: January 5, 2017)

CX - Assessee was engaged in manufacture of printed paper labels and plastic labels -

Assessee who has complied with provisions of cenvat credit rules in a proper manner inso far as receipt under proper duty payment of documents and further utilisation of thesaid inputs in the manufacture of final products is concerned, cannot be penalised foran arguably disputed action of the supplier - Moreover, from basic requirement foravailment of cenvat credit i.e. receipt of duty paid inputs under the cover of properinvoices and utilisation of such inputs for further use in the manufacture of finalproducts, have not been questioned by department - No reason found to interfere withthe impugned order, same is hereby sustained: CESTAT

2017-TIOL-874-CESTAT-KOL

Sai Sulphonate Pvt Ltd Vs CCE (Dated: September 21, 2016)

CX - Assessee is making Acid Slurry from Linear Alkyl Benzene (LAB) and SulphuricAcid - In process of manufacture of LAB, a by product 'Spent Sulphuric Acid' emergeswhich is normally cleared on payment of duty - Revenue contends that since assesseeis not maintaining separate account for inputs used in dutiable and exempted finalproducts then amount under Rule 6(3)(1)(b) of CCR, 2004 is required to be paid - SaidRule of CCR cannot be legally invoked inasmuch as the 'Spent Sulphuric Acid' is not afinal product which is manufactured along with the 'Acid-Slurry' - The 'Spent SulphuricAcid', is a by-product as waste in the process of manufacturing of acid slurry onaccount of chemical reactions in the process of manufacture: CESTAT


Shivai Fabricators Pvt Ltd Vs CCE (Dated: January 6, 2017)

CX - Dispute is with reference to availment of SSI benefit under Notfn 8/2003-CE - Thebenefit has been disallowed by Revenue authority during the period 2008-09 -Clearances made to the ordnance factory have been made under provision of Notfn.64/95 CE - Aggregate value of such clearances are clearly not to be included in totalaggregate value of clearances of excisable goods under clause z(vi) - If value of suchclearances are deducted, aggregate value during financial year 2007-08 is below thelimit of Rs 4 crores specified in notfn - Consequently, benefit of Notfn. 08/2003-CE willbe allowed to assessee during FY 2008-09: CESTAT (Para 2,6,7)


Gunnebo India Pvt Ltd Vs CCE, C & ST (Dated: November 21, 2016)

CX - Non compliance with the provision of section 35F of CEA, 1944 - Assesseesubmitted that they had deposited 7.5% at first appellate stage, before Commissioner(A), hence, they are required to deposit balance 2.5% and not the entire 10% - It issettled position of law that in taxing statute, the Courts have to adhere to literalinterpretation - Amount paid under Clause (i) of Sec. 35F, which was paid at the timeof filing appeal before first Appellate Authority cannot be adjusted against amount ofdeposit required to be made under clause (iii) while filing the appeal before this forum:CESTAT


JBM Auto Ltd Vs CCE (Dated: December 19, 2016)

CX - Assessee developed and modified several tools in their factory before despatchingthem - Invoice issued & goods moved without payment of modification charges -Assessee deliberately did not disclose receipt of modification charges, amounts to wilfulsuppression and that value was mis-declared by assessee - Order of Commr. (A)upheld: CESTAT (Para 2, 3 ,4, 9, 10)


JCBL Ltd Vs CCE (Dated: October 28, 2016)

CX - Assessee company is a job-worker & paid excess tax on clearance of goods -Debit notes were issued to assessee by buyer - Assessee sought refund but claimswere rejected alleging that credit notes were issued after clearance of goods and arefund of tax would lead to unjust enrichment - It is unclear as to whether or not thebuyer has availed cenvat credit on excess duty paid by assessee - Matter remanded forfresh adjudication: CESTAT (Para 2,5)


IP Rings Ltd Vs CCE (Dated: November 18, 2016)

Central Excise – Disallowance of the Cenvat Credit on renting of immovable propertytaken on rent and used for office space.

Held: No material on record to show that the services availed by the appellant werenot required for the purpose of the office nor also there is any material to suggest theservices availed was dispensable - there is an integral connection between inputservice and business carried out - Once such an integral connection is established,following the ratio laid down by Larger Bench in the case of Ramala Sahkari Chini MillsLtd. Vs Commissioner of Central Excise, Merut-I both the appeals are allowed – (Para2).


Double Cola Mfg Company (India) Pvt Ltd Vs CCE (Dated: February 23, 2017)

CX - SSI exemption - Manufacture and clearance of Mineral water under the brandname "Harlen" - what has been assigned by the assignor is only the right tomanufacture the mineral water at the Nasik plant of the assignee - It is apparent thatthe said deed does not assign the right to sell the product under the said brand name -assignment merely for the purpose of production of goods cannot be treated as sale ofbrand name in any manner - appellants are not the owners of the brand name, butthey have merely acquired the right to produce goods under the brand name withoutany rights to sell the goods under the said brand name - benefit of SSI rightly deniedto appellant - appellants have admittedly declared in their declaration filed u/r 173Bthat they are the owners of the brand name - since the same turns out to be a falsestatement, mis-declaration is apparent on record - extended period of limitation rightlyinvoked - Appeal dismissed: CESTAT [para 5, 6]



CCE Vs Mahindra And Mahindra Ltd (Dated: January 31, 2017)

CX - Whether notional interest on the advances given to the appellant by M/s.Mahindra Ford India Ltd. (MFIL) is liable to be included in the assessable vale of thevehicles manufactured by the respondent for M/s. MFIL in a case where therespondents have paid duty on the ultimate sales price of M/s. MFIL to itsdealers/customers. Held: Notional interest can only be added, in case the respondentvalued their goods on cost construction method of if the goods are sold by therespondent to M/s MFIL at a price lower than the price at which M/s MFIL sold thevehicle – since the present case does not fall under any of these two categories,respondent paid the duty on the sale price of M/s MFIL which includes all theexpenditure and profits of respondent as well as of M/s MFIL, therefore, in such asituation nothing is left to be further included in the sale value of M/s MFIL on whichexcise duty was discharged – It is a settled position that notional interest in case ofadvance received from the customer can only be added if it exceeds the assessablevalue – for this reason also, the notional interest which has not influenced the value inthe present case cannot be charged to excise duty – no infirmity found in the order ofthe Commissioner(A), dropping the duty demand, therefore, Revenue appeal does not

survive – Appeal dismissed: CESTAT [para 4]


CCE Vs Standard Greases (Dated: February 3, 2017)

CX – Respondent is a job worker for Castrol India Ltd. for manufacture of grease –Valuation was done on the basis of cost construction method – landed cost of rawmaterial was enhanced twice by the principal manufacturer, which was intimated to therespondent on 23.05.2001 and 19.11.2011 – based on the fresh costing certificateissued by the Chartered Accountant, the respondent computed and paid the differentialexcise duty for the period March 2000 to December 2000 and for the period January2001 to November 2001 and intimated the excise authorities – later, respondent wasissued SCN on 24.03.2005 invoking larger period of limitation – demand was confirmedby original authority – Revenue is aggrieved against the dropping of interest andpenalty by Commissioner(A) and has, therefore, filed appeal before CESTAT. Held:Short payment of duty is not due to the malafide intention of the respondent but forthe reason that the principal manufacturer has not provided the correct cost ofmaterial, timely to the respondent – therefore, since there is no intention to evadepayment of duty, penalty u/s 11AC of CEA, 1944 is not imposable – however, interestu/s 11AB of CEA, 1944 is unavoidable as the same is in the nature of piggyback of theduty – since duty was paid belatedly, interest payment is inevitable – moreover, evenif SCN is not issued, interest is otherwise chargeable on delayed payment of duty –impugned order in respect of penalty is upheld and in respect of interest is set aside –Revenue appeal is partly allowed: CESTAT [para 4 to 6]


Tata Motors Ltd Vs CCE (Dated: January 23, 2017)

CX - In Final order dated 01.12.2016 - 2017-TIOL-90-CESTAT-MUM , following thedecision in appellant's own case reported as 2016-TIOL-1027-CESTAT , the appeal ofRevenue was wrongly allowed; however, the appeal of Revenue should have beendismissed by following the said decision - ROM application filed by applicant. Held: Inview of the facts mentioned, Revenue appeal should have been dismissed - paragraph6 of the decision dated 01.12.2016 is, therefore, substituted accordingly - ROMapplication allowed: CESTAT [para 2]


Maruti Ispat And Energy Pvt Ltd Vs CC, CE & ST (Dated: November 03, 2016)

CX - Assessee engaged in manufacture of sponge iron and are availing the facility ofCenvat credit of duty paid on inputs/capital goods and ST paid on input services - It isalleged that assessee had availed irregular credit of duty paid on goods which wereused in fabrication of capital goods - According to department, fabrication of structuredo not fall under definition of capital goods - Assessee had availed credit undercategory of capital goods and is now shifting claim under category of inputs - However,assessee established that without fabrication of parts, accessories, components ofcapital goods, it is not able to carry out the process of manufacture as these capitalgoods are integral for carrying out manufacturing activity - Credit is admissible:CESTAT

2017-TIOL-856-CESTAT-HYD-LB

MG Automotives Pvt Ltd Vs CC & CE (Dated: November 10, 2016)

CX - ROM - In identical matters before other co-ordinate Benches of Tribunal, matterhad been remanded to Commissioner with directions to consider RSO price as cum-duty price in computing the demand - Though the submissions of assessee wererecorded in impugned Final Orders, there indeed was a omission to consider and

discuss the same - Therefore, there is an error apparent on face of record which needsto be rectified - Adjudicating authority should recalculate the duty liability accordingly -Such denovo proceedings should provide sufficient opportunity to assessee to put forththeir submissions and also extending cum-duty benefit - When penalty under Rule 25ibid is set aside in Tribunal's decisions cited above, there can be no equivalent penaltyunder Rule 26


Gujarat Polybutenes Pvt Ltd Vs CCE, C & ST (Dated: December 29, 2016)

CX - Service Tax paid in relation to "Rent a Cab", "C&F", "Motor Vehicle MaintenanceRepairing, and Insurance", Money Insurance, Marine Insurance, Office Employeesinsurance Services" are covered under the scope of "Input Services" as defined underRule 2(l) of the Cenvat Credit Rules 2004 as has been held in Essar Oil Ltd - 2015-TIOL-2768-HC-AHM- CX and STANZEN Toyotetsu India Pvt. Ltd. 2011-TIOL-866-HC-KAR-ST - Impugned order is set aside and the appeals are allowed: CESTAT


Spic Ltd Vs CCE (Dated: October 17, 2016)

Central Excise – Remission of duty – Appellant's claims for remission on the groundthat there was theft of goods and 1% transit loss on imported goods denied inadjudication, and agitated herein.

Held: Claim of theft not provided under law for immunity from payment of duty, hencerejected - It does not appeal to commonsense how an importer shall import goods ofhuge value without insuring the goods to protect that from transit loss - the matter isremanded to the adjudicating authority to examine whether transit loss was insuredand such loss was claimed by the appellant from insurance company - If no insuranceclaim was made, the authority may consider the claim in the light of the Board'scircular/notification if any in this regard; and the Larger bench ruling in the BhuwalkaSteel Industries case, to compute permissibility of the transit loss - If the loss claimedby appellant is supported by insurance claim, there shall be no consideration ofremission of duty, to the extent of coverage of the insurance claim – Adjudicatingauthority shall hear the appellant and recording evidence, shall pass appropriate order[Para 2, 4, 5]


Castrol India Ltd Vs CCE (Dated: January 6, 2017)

CX - There is shortage of inputs and during the process there are some process lossesto the tune of 0.5% to 0.9% - Tribunal in appellant's own case vide order dt.12.10.2007 allowed the process loss up to 0.5% and appellant has also intimated thedepartment with regard to processes loss in 1999 itself - Further, duty has been paidon losses beyond permissible limits - It cannot be alleged that appellant has availedexcess Cenvat credit with intent to evade payment of duty - Penalty on appellant is notimposable: CESTAT


Cadila Healthcare Ltd Vs CCE (Dated: February 6, 2017)

CX - Valuation - Section 4 of the CEA, 1944 - Clearances of "Dulcolax Tabs", "ProlutonDepot 250 mg' and ‘Proluton Depot 500 mg' were effected on payment of duty on priceat which these were sold from the depot - goods were manufactured in July 2003 andSeptember 2003 for sale in August 2003 and October 2003 - original authority issuingdifferential duty demand on the ground that the discount/bonus scheme was notoperational in July and September 2003 - as demand confirmed and upheld by

Commissioner(A), appellant before CESTAT.

Held: Admittedly, sale has not taken place from the factory gate but goods were soldfrom the depot and at the time of sale from the depot the price charged was the priceminus quantity discount, therefore, the price excluding the quantity discount is anamount payable at the time of sale or at any other time - excluding discount value isthe correct transaction value and duty cannot be charged on the discount amountwhich is neither paid nor payable in the case of sale of goods - demand of differentialduty is without any merit - impugned order is set aside and appeal is allowed: CESTAT[para 3, 4]


CCE Vs Blue Star Ltd (Dated: December 20, 2016)

CX - Respondent is engaged in the manufacture of Air Conditioners / Refrigerationequipment and supply the same on self basis at site and undertake the job of erectionand installation of such Air Conditioners/ Refrigeration equipment -Respondents haveadopted the value of the goods in terms of Rule 8 of Valuation Rules, 2000 for thereason that the goods are cleared to self and thereafter used for erection andinstallation - Revenue proposed to add the freight charges in the value declared by theappellant and accordingly the differential duty demand was confirmed -Commissioner(A) set aside the order and, therefore, Revenue is in appeal beforeCESTAT.

Held: Since the Air Conditioners /Refrigeration equipments were not sold as such forthe reason that the respondent has taken a turnkey project for supply, erection,installation and commissioning, therefore the sale price of the Air Conditioners /Refrigeration equipment is not separately available and consequently the valuationcannot be done under Section 4(1)(a) of CEA, 1944 -Valuation is to be done in termsof Section 4(1)(b) read with Central Excise Valuation Rules, 2000 - going through thevaluation Rules sequentially, it is found that in terms of Rule 11, the most appropriaterule applicable is Rule 8 which prescribes the valuation based on cost constructionmethod at the rate of 115% of the cost of manufacturing - the provision does notprovide to add any elements over and above the 115% of the cost of manufacture -therefore, addition of freight charges in the value of 115% is without authority of law -no infirmity found in the impugned order, same upheld - appeals of revenue dismissed: CESTAT [para 4]


CCE Vs PRP Wire Ropes (Dated: February 8, 2017)

CX - Even if any excise duty is not payable, but since the assessee collected the samefrom buyers and paid it to the Govt. account, Section 11D has no application -Revenue appeal dismissed: CESTAT [para 4, 4.1]



Hi-Tech Radiators Pvt Ltd Vs CCE (Dated: February 6, 2017)

CX - Goods were cleared for export but since bond had expired department askedappellant to pay duty and which was paid – refund of duty claimed is covered underrebate provisions of rule 18 of CER, 2002, therefore, appeal remedy before Tribunal isexcluded as per clause (b) of section 35B of CEA, 1944 – Appeal dismissed as not-maintainable: CESTAT [para 4]



Birla Corporation Ltd Vs CCE (Dated: November 16, 2016)

Central Excise - Cement without marking of retail sale price cleared directly from themanufacturer to institutional consumer - Cannot be considered as Retail sale -Packaged Commodities Rules, 1977 inapplicable as such benefit of notification cannotbe denied. (Para 5, 6)


Bharat Petroleum Corporation Ltd Vs CCE (Dated: February 24, 2016)

CX - Assessee engaged in procuring, warehousing and clearance of duty paidpetroleum products including ATF - They collected excess amount in lieu of CX duty byenhancing the assessable value but allegedly did not remit the same to Govt. -Although assessee sold ATF at higher price, actual amount of duty paid at time ofclearance was claimed only through cenvatable sales invoices - No excess amountcollected by assessee - Department cannot invoke Section 11D as no evidenceproduced to show that assessee has not paid duty: CESTAT


CC & CE Vs Andhra Pradesh Paper Mills Ltd (Dated: November 17, 2016)

CX - Assessee engaged in making platforms and staircases using subject items forsteel structure - He claimed CENVAT credit on capital goods used in making suchplatforms - Tribunal observed that all the impugned goods were used for specificpurpose - These goods once get embedded in manufacturing line, lose their identityand contribute their part in production of goods, whether directly or indirectly - Theycan no longer be considered as same goods which they were brought into factory - Byundertaking fabrication work, these inputs no longer remain in same form but becomea part of the particular capital goods whether used directly to fabricate the capitalgoods or used for constructing mechanical / civil structures used to access the capitalgoods: CESTAT


CCE Vs Alstom Projects India Ltd (Dated: January 16, 2017)

CX - Valuation - Section 4 of the CEA, 1944 - Non-inclusion of 'erection, commissioningand installation charges' in the assessable value of 'duct and duct support structures'manufactured by M/s Alstom Projects India Ltd and supplied at the site of theircustomers between May 2003 and December 2003 - Revenue alleging that appellantprepared drawings and designs before commencement of production and had notincluded the cost of these in the assessable value - Commissioner(A) opined that thejustification cited in the order of the original authority was not in conformity with thefactual submissions inasmuch as these were post-manufacturing activities and are notrelevant for determination of the AV - Revenue appeal before CESTAT. Held: In almostidentical circumstances, the Tribunal in the case of Indo-Berlina Industries has taken aview that most of the activities are relating to pre-fabrication, engineering and designstage and, therefore, these components are includible in the Assessable value -impugned order set aside and Revenue appeal allowed: CESTAT [para 5, 6]


Albright and Wilson Chemicals Ltd Vs CCE (Dated: December 20, 2016)

CX - Appellant manufacturing sodium tripoly phosphate (STPP) and clearing the sameunder Chapter X procedure under notification no.49/94-CE(NT) dated 22.9.1994without payment of duty - SCN issued proposing demand of duty on the intermediateproduct i.e. phosphoric acid on the ground that notification no.67/95-CE dated

16.3.1995 is not applicable for the intermediate product as the final product isexempted from whole of the duty of excise - demand confirmed and upheld by theCommissioner (Appeals) - appeal to CESTAT. HELD: From the conditions of notification49/94-CE(NT), it is clear that the goods supplied by the appellant is meant for use inthe export goods - moreover, the supplies are against the advance licence to theholder of the advance licence -these supplies are also treated as deemed export interms of Export and Import Policy -for all these reasons the supplies made by theappellant under bond which is meant for use in the export goods cannot be treated atpar with the non-duty paid goods or exempted goods - therefore, the final productsupplied by the appellant against CT-2 certificate cannot be treated as nil duty orexempted goods -in such a case, the intermediate goods will be entitled for notification67/95-CE, hence the demand on the intermediate product i.e. phosphoric acid is nottenable - impugned order set aside, appeal allowed : CESTAT [para 4]


TCP Ltd Vs CCE (Dated: September 19, 2016)

CX - Whether difference between insurance amount paid to insurance company andinsurance amount realised is dutiable - Excise law holds that proceeds realised fromclearance of excisable goods are dutiable and not profits from manufacture: CESTAT(Para 1,3)


Shobikaa Implex Pvt Ltd Vs CCE (Dated: October 21, 2016)

Central Excise – CENVAT Credit rejected on the ground that invoices in the name of thehead office are not eligible to the CENVAT credit.

Held: Only for rejection of that bill/invoice was it was in the name of the head office –No allegation that the goods were not used in the manufacture by the unit in HeadOffice - mere exhibition of the name of the appellants Head Office on the invoice shallnot disentitle it to the CENVAT credit of the duty paid through such invoices - basic ruleof allowance of CENVAT credit is that input should have been received in the factoryand used in the manufacture as essential input for the output – Appellant is entitled toCENVAT Credit of the goods in question – Appeal allowed – (Para 5).


S V M Auto Products Vs CCE (Dated: October 21, 2016)

Central Excise - Default in monthly payment of duty - Rule 8 (3A) of CE Rules, 2002 -Discharge the duty liability consignment wise through PLA/account current - Refrainfrom utilization of Cenvat credit - On adjudication, it was held that payment other thanthrough current account/cash are specifically deemed to be clearances withoutpayment of duty - Confirmed the demand along with interest and equal penalty -Confiscation of goods and imposition of redemption fine - On appeal, redemption finewas dropped and equal penalty was reduced, rest of the order was upheld - Hence, theappeal.

Held: appeal is remanded back to original adjudicating authority with the direction fordenovo consideration, based on the parameters of the final ruling of the Hon'bleSupreme Court in the matter - Appeal Remanded - (Para 4).


Jayalakshmi Printing Mills Vs CCE (Dated: September 21, 2016)

Central Excise – Allegations of loss of Revenue – Alleged that M/s.JPM and M/s.BharathPrinting Mills are one and the same, the processed fabrics dispatched in the name of

M/s Bharath Printing Mills were without payment of duty voucher or Central Excisegate passes to the business premises, printing mill was declared and got registered asM/s Jayalakshmi Printing Mills for Central Excise purposes and for other department itwas declared and got registered as M/s Bharath Printing Mills in order to suppressquantum of production, cleared and with intention to evade Central Excise duty to theGovernment, suppressed the existence of M/s. Bharath Printing Mills and the certificatewith M/s. Bharath Printing Mills appeared to be mainly to camouflage the activities ofM/s. Jayalakshmi Printing Mills and to evade payment of Central Excise duty.

Held: The order of the Adjudicating Commissioner shows that he has not applied hismind and that he had prejudged mind to reach to his decision without testing theevidence on record – The SCN indicates that there were two distinct units carrying outtheir activities and it also alleged that M/s.Jayalakshmi Printing Mills was themanufacturer and it was liable to duty – Perusal of the order throws light that theorder has been passed superficially - it was the duty of the Adjudicating Authority toascertain whether there were two distinct and independent units existed and what wastheir liability on the basis of investigation result and evidence on record – assesseeshould not be unjustly dealt under law and there should be cogent and credibleevidence - The manner in which the impugned order has been passed, that calls fordirection to the Adjudicating Authority to redo the adjudication examining thecontroversy in the SCN and considering the material facts, evidence, law and previousdirections of Tribunal as well as the defence plea, granting fair opportunity of hearingto the appellant – Hence, both the appeals are remanded to the adjudicating authority– (Para 5, 6, 7, & 8).


CCE & ST Vs Plastiblends India Ltd (Dated: February 2, 2017)

CX - CENVAT – Input Service - Rule 2(l) of CCR, 2004 - Grievance of Revenue is thatservice tax paid on sales commission agent's service is not eligible for cenvat credit,since the expenses incurred are in connection with sales and not confirmed to "salespromotion" as specified in the inclusive part of definition of input service. Held: Jobperformed by the commission agent is for promoting the sales of the appellant'sproducts and not related to mere selling of goods - activities undertaken by thecommission agents pursuant to the agreement entered with the appellant are basicallyfor promoting and boosting the sales of the appellant - Since the phrase 'salespromotion' is finding place in the definition of input service for the purpose ofavailment of cenvat credit, Bench is of the view that the credit taken by therespondent is in conformity with the cenvat statute – no merit in Revenue appeal,hence rejected: CESTAT [para 4, 5]


CCE & ST Vs Siddhartha Optical Disc Pvt Ltd (Dated: February 21, 2017)

CX - Non-educational CD ROMs cannot be treated as Video games to deny benefit ofnotfn. 6/2006-CE when fact is that no samples were drawn - benefit of doubt goes toassessee - Assessee appeal allowed and Revenue appeal dismissed: CESTAT [para 5,6]



Sriram Cable Pvt Ltd Vs CCE (Dated: January 10, 2017)

CX - Assessee engaged in manufacture of insulated Wires and Cables and clearedinstrumental cables to Mega Power Project of NTPC - Department views that theseitems are subjected to excise duty - By following the decision in case of M/s RallisonElectricals Pvt. Ltd. 2016-TIOL-2932-CESTAT-DEL and M/s Paramount CommunicationLtd. 2016-TIOL-1875-CESTAT-DEL , no reason found to sustain the impugned order:CESTAT


Shakti Insulated Wires Pvt Ltd Vs CCE (Dated: January 31, 2017)

CX – Appellant carried out insulation of copper wire and enameled wire supplied by M/sCrompton Greaves who had filed undertaking under notification 214/86-CE/rule 57F(2)of CER, 1944 – after return, M/s CG used enameled copper winding wires formanufacture of electric motors which were cleared to their other unit at Worli andAhmedabad at ‘Nil' rate of duty under notification 5/99-CE, 6/2000-CE – these electricmotors were subsequently used for manufacture of PD pumps for handling water andwhich in turn were also exempted from payment of CE duty – SCN, therefore, issued toappellant demanding CE duty as manufacturer of winding wires (enameled) – demandconfirmed and penalties imposed on appellant as well as M/s CG – appeals to CESTAT.Held: Activity of conversion of bare copper wire to winding wire by enamel insulationprocess has been held as non-manufacturing activity accordingly, the activity does notamount to manufacture as held by Bombay High Court in the appellant's own case –therefore, no duty can be demanded from appellant – moreover, since job work wascarried out on the basis of undertaking given by M/s CG mandated in terms ofnotification 214/86-CE, liability of excise duty, if any, stands shifted to the principalmanufacturer M/s CG – impugned order is set aside and appeals are allowed: CESTAT[para 5]


Ratanlal Babulal Agarwal Vs CCE (Dated: January 30, 2017)

CX – Valuation – Penalty – Case was booked against processors alleging mis-declaration of value of grey fabrics – demand of duty and penalty confirmed along withinterest and penalty was imposed on the appellants – appellants before CESTAT andcontend that order is passed on assumption and no substantive evidence has beenproduced by Revenue to reject the declared value; that demand is based on retractedstatements; penalties u/s 209A of CER, 1944 has been imposed without any allegationof goods being liable to confiscation. Held: It is seen that no evidence of the allegationof mis-declaration of value of grey fabrics has been given by the Revenue to theappellants despite specific request for the same and thus it has severely compromisedthe defence of appellant – SCN also does not contain any co-relation between thepurchase invoice of merchant manufacturer and excise invoices issued by theprocessor – inasmuch as Revenue has simply adopted the highest price at which thegrey fabrics were supplied to M/s R B Textile Mills and applied the same across theboard – moreover, since statement given by merchant manufacturer was changedduring cross examination, Revenue could have countered that retraction by producingsome records which has not been done – penalties imposed on appellants are notsustainable as Revenue has failed to substantiate the allegations of under valuation –appeals are allowed: CESTAT [para 5]


CCE Vs Mukund Ltd (Dated: January 30, 2017)

CX – Respondent received inputs namely, billets and blooms and took credit of theduty shown on the invoices - CENVAT credit denied on the shortage of 0.35% ascompared to the weight mentioned in the invoice – against order of Commissioner(A)setting aside demand, appeal by Revenue before CESTAT. Held: There is no disputethat number of blooms and billets mentioned by the supplier in the invoices have beenfully received – since there is no shortage in number of pieces, the difference in weightis only the weight variation because of weighing done at different weighbridges –findings of Commissioner(A) concurred with – CENVAT credit cannot be denied -impugned order upheld and Revenue appeal dismissed: CESTAT [para 4]


New Hope Food Industries Pvt Ltd Vs CCE (Dated: October 5, 2016)

Central Excise – Appellant's grievance is when it manufactured goods and cleared themunder the brand name of MILKA revenue alleged that the brand name belonged toanother and hence it is not entitled to SSI exemption.

Held: No evidence if MILKA brand owner had an agreement with appellant to make useof such brand name and no action brought by anybody against the appellant formaking any breach under Trade Mark Law – no evidence to show that appellant waspermitted user of the brand name and it establishes that appellant was independentowner of this brand without being a permitted user of any other – No substance in theallegation of revenue to disallow SSI exemption – Appeal allowed – (Para 5).


Sundaram Fasteners Ltd Vs CCE (Dated: October 21, 2016)

Central Excise - Issue in question relates to non-payment of Education Cess onclearances made by the appellant to DTA – Grievance regarding the imposition ofpenalty in terms of Central Excise Rules.

Held: Appellant wrongly understood the Larger Bench decision of the Tribunal in thecase of Kumar Arch Tech Pvt. Ltd. Vs CCE Jaipur-II - it cannot then be disputed thatnon-payment was only on account of mis-interpretation of a case law, but definitelynot wilful or with intention to evade payment of duty – Hence, Penalty is notsustainable and set aside – Appeal allowed – (Para 4).


Padmashri Dr Vitthalrao Vikhe Patil SSK Vs CCE (Dated: January 6, 2017)

CX - Demand confirmed on waste & scrap of paper and steel – appeal to CESTAT.Held: SCN is not indicating why this duty is being levied on waste & scrap – on boththe items, appellant has not availed cenvat credit – Excise duty can be charged wherewaste and scrap is generated during the course of manufacture of excisable goods andsuch waste & scrap have been classified as dutiable goods in the Central Excise Tariff,which is not the case here– impugned order set aside, appeal allowed: CESTAT [para4]


Precision Metal Products Pvt Ltd Vs CCE (Dated: August 22, 2016)

CX – Appellant had imported capital goods and inputs during the period 2006-07 to2010-11 and had not availed the credit of special additional duty (SAD) paid –appellant taking credit of Rs.9.27 lakhs on 28.2.2011 and subsequently reversing it –appellant filing refund claim which was rejected as the credit was not within theentitlement of the appellant for having been availed long after the receipt of the inputswithin the factory of appellant - this was concurred with by first appellate authority,hence appeal to CESTAT. HELD:CCR do not prescribe any outer limit for availment butthey do insist upon taking of credit on inputs only after receipt in factory - as long asthat condition has been fulfilled, there can be no cavil on availment –same has beenclarified by the Board in F No 345/2/200-TRU dated 29.8.2000 - capital goods mustsimilarly be received and the full credit was not to be availed in the first year; to theextent that appellant has not availed of the credit in the first year, there can be nocavil again on lumpsum availment beyond the first year – Tribunal, in the case ofCoromandel Fertilizers Ltd. - 2009-TIOL-153-CESTAT-BANG held that there is nojustification to deny the credit on the ground that it is availed after a long time -Original authority erred in denying restoration of credit and the first appellate authorityerred by concurring with this course of action - appeal is allowed by restoring of creditof Rs.9.27 lakhs: CESTAT [para 7, 8, 9, 12]


Ramco Cements Ltd Vs CCE (Dated: October 21, 2016)

Central Excise – Denial of cenvat credit on insurance, man power, fabrication anderection and repair and maintenance services availed by the appellant.

Held: Lower appellate authority has observed that appellant has not endeavored toprove that man power engaged by them was used for maintenance / repair ofmachineries and also fabrication and erection would be hit by exclusion clause (A) ofRule 2 (l) of Cenvat Credit Rules, 2004 - In respect of repair and maintenance service,the appellant could not adduce any documentary evidence even before the lowerappellate authority to show that the same pertained to repair and maintenance –Insurance taken to safeguard the assets and it's an essential requirement for a factoryand within the ambit of eligible input service – Except insurance, remaining part ofappeal dismissed – Appeal disposed of – (Para 1, & 2).


Nalwa Steel And Power Ltd Vs CCE & ST (Dated: February 21, 2017)

CX - Appellant are manufacturers of Sponge Iron, M.S. Billet, M.S. Wire Rods, RibBars/TMT Bars, etc. - CENVAT credit availed in respect of items viz. Boiler Parts, SiloSystem, Boiler Radiation Hopper, Turbine Air Unit, EOT Crane, Hook Conveyor,Materials Handling System, Platform for kiln, coal drier, Stack Structure, cooling tower,Girth Gear, Kiln Gear Box, etc. - Department was of the view that these items areneither inputs nor capital goods as defined under Rule 2 (a) of the CCR, 2004, hencecredit denied - appeal to CESTAT. Held: Appellant has explained that these items areessential for functioning of machines and its alignment; that these machines arefabricated and subsequently attached to concrete foundation with the help of nuts andbolts and to this effect appellant has filed Chartered Engineer certificate dated07.02.2012 - issue is covered by the decision of the Tribunal in the case of SinghalEnterprises Pvt. Limited - 2016-TIOL-2451-CESAT-DEL and Lafarge India Pvt. Limited -2016-TIOL-2875-CESTAT-DEL - Credit is, therefore, correctly taken by appellant -impugned order set aside and appeal allowed with consequential relief: CESTAT [para4, 5]


Spacetech Cryo Equipments Pvt Ltd Vs CCE (Dated: January 3, 2017)

CX - Appellant is engaged in fabrication and mounting of LPG tanker on the chassissupplied by the customer and claims the benefit of exemption notification 4/97-CEaccording to which the value of chassis is not included in the AV for charging the duty– appellant received chassis along with running gear – contention of the department isthat only the value of chassis is excluded from total value of motor vehicle and not thevalue of running gear – demand raised on the value of running gear and confirmed bylower authorities – appeal to CESTAT. Held: Identical issue has been decided inappellant's own case and in the case of Mukul Engineering - 2010-TIOL-641-CESTAT-MUM where it is held that value of ‘running gear' is not includible in the value of motorvehicle for the reason that the running gear is part of chassis – impugned orders are,therefore, not sustainable and hence set aside – Appeals allowed: CESTAT [para 4, 5]


CCE Vs Tata Steel Ltd (Dated: February 2, 2017)

CX – Appellant is engaged in manufacture of MS Wires and availed credit on wire rodsreceived from their Borivali plant – Revenue alleged that the activity of drawing wirefrom thicker to thinner gauge does not amount to manufacture in view of apex court

decision in Technoweld Industries - 2003-TIOL-37-SC-CX and, therefore, appellant isnot entitled for CENVAT credit – Commissioner(A) setting aside the order passed byoriginal authority, therefore, Revenue in appeal before CESTAT. Held: As per rule 16 ofCER, 2001, assessee is permitted to avail credit on the duty paid goods received forcarrying out remaking, refining, reconditioning or for any other reason and after any ofthe said process even if not amounting to manufacture, when the goods is cleared,then the duty has to be paid equal to the CENVAT credit availed initially – in thepresent case, the respondents have taken credit of the duty paid on wire rods andafter the process of drawing they have paid duty determined on clearances on thetransaction value, therefore, the entire transaction is squarely covered under theprovisions of Rule 16 of CER 2001 – for the period prior to 01/07/2001 when rule 16 ofCER, 2001 was inserted, even if activity does not amount to manufacture, it is to betreated as removal of input as such – moreover, removal of input can be either onpayment of duty which is equal to the CENVAT amount or can be cleared withoutpayment of duty for export under bond – it is not the case of the revenue that therespondent has cleared the goods in the domestic market without payment of duty –no infirmity in the impugned order, therefore, Revenue appeal is dismissed: CESTAT[para 5, 6]


Uttam Sugar Mills Ltd Vs CCE & ST (Dated: August 4, 2016)

CX - Revenue demanded reversal of credit availed on Bagasse - Whether Rule 6(3) ofCCR applicable to Bagasse - Bagasse is agricultural waste/residue which is not theresult of any process - No manufacture then no excise duty - Consequently, Rule 6 notapplicable either on Bagasse or on electricity: CESTAT


CC, CE & ST Vs Viki Industries Pvt Ltd (Dated: September 20, 2016)

Central Excise – CENVAT Credit – When it is not disputed that duty was paid and inputservices were received by assessee, fact that invoices did not contain full particulars asper Rule 4A(2) of Service Tax Rules, i.e., invoices were in the name of head office,registration number was not mentioned on the invoices etc., cannot be a ground fordenial of credit.

Credit denied on the ground that invoices were in the name of head office and thoughthe head office was registered as ISD, bills were forwarded without following theprocedure as per Rule 4A(2) of Service Tax Rules, 2002 and that the invoices did notcontain the registration number of service provider – When it is not disputed that dutywas paid and input services were received by assessee, fact that invoices did notcontain full particulars as per Rule 4A(2), cannot be a ground for denial of credit –Credit on input services is not dependent upon actual receipt of input services in thefactory unlike in the case of inputs where it is dependent on actual receipt ofinputs/capital goods in the factory – Precedents have held that when the documentsare in the name of head office, credit can be availed in the factory belonging to thesame manufacturer – Hence, no infirmity in the impugned order of Commissioner (A)which set aside the demand and penalty of 50% of the demand amount – Hence,Revenue's appeal is dismissed. [paras 1, 4, 5]


Indian Hume Pipe Company Ltd Vs CCE (Dated: January 30, 2017)

CX - Appellant are undertaking Turnkey project of supplying pipes manufactured bythem - for valuation on cost construction method, appellants took overhead expenses@300% of labour charges and filed price list - later on 21.08.1990, they revisedoverhead charges to @100% of labour charges - department issued differential dutydemand on the difference of 200% overhead charges - demand confirmed, henceappeal to CESTAT. Held: Since there are no supporting documents adduced either by

the department or by the appellant for their respective claim of 300% and 100%overhead charges, the 100% overhead charges arrived at by the Cost Accountantshould be accepted - impugned order is set aside and appeal is allowed: CESTAT [para4]


Pawan Kumar Agarwal Vs CCE (Dated: October 31, 2016)

CX - Appellant involved in issuance of fake gate passes and on the basis of which thefraudulent modvat credit was passed on - for such offence, whether the appellant isliable for penalty under rule 209A of the CER, 1944. HELD: In the instant case, fakegate passes were issued but no excisable goods were supplied-the appellant was notinvolved in the act as mentioned under rule 209A such as transporting, removing,depositing, keeping, concealing, etc. of any excisable goods which are liable forconfiscation -since no goods were involved, the question of dealing with the goods andthe confiscation thereof is not involved - under rule 209A penalty cannot be imposedon the appellant for the offence committed- since the provision similar to sub-rule (2)of Rule 26 of the CER, 2002 was neither existing in rule 26(1) of the Rules, 2002 nor inrule 209A of the Rules 1944, the provisions of sub-rule (2) cannot be made applicableprior to 1.3.2007 when sub-rule (2) was inserted- therefore, penalty is set asideandappeal is allowed : CESTAT [para 5]


CCE Vs Saurer Embroidery System India Ltd (Dated: December 5, 2016)

CX - Assessee engaged in manufacture of embroidery - Excise duty on manufacture ofembroidery was withdrawn on 09.07.04 - Assessee surrendered CX registration on21.07.04 - They had imported embroidery machines & had taken MODVAT creditbefore 02.06.98, which was utilized for duty liability during 1998-99 - No valid reasonshave been provided by FAA for rejecting assessee's claims, such as lack of provisionfor granting MODVAT on capital goods and non-satisfaction of section 11B of Act -Assessee be given adequate opportunity to present their case: CESTAT (Para2,2.1,7,8)


Cement Manufacturing Company Vs CCE & ST (Dated: September 6, 2016)

CX - Issue involved is taking of CENVAT Credit on services when ST is paid byHeadquarters of assessee and CENVAT Credit under CCR is taken at their onlymanufacturing unit - Assessee is having only one manufacturing unit and it is notdisputed that services are not availed in factory premises of assessee - Onlyirregularity committed by assessee is that Headquarters of assessee was not registeredas ISD Distributor - This being a procedural irregularity, therefore, cannot be made thebasis of denying CENVAT Credit on services received by assessee: CESTAT


Sd Bansal Iron And Steel Pvt Ltd Vs CCE (Dated: January 30, 2017)

CX CENVAT - Appellant has used dumpers/tippers for movement of raw materials suchas ingots and Billets within the factory - movement of coal as well as other finishedproducts from one part of the factory to other have also been handled by making useof dumpers and trucks - Supreme court in the case of CCE Vs. Rajasthan StateChemical Works = 2002-TIOL-66-SC-CX-LB observed that the processing and handlingof raw materials is also in or in relation to manufacture, if integrally connected withfurther operation leading to manufacture of goods - Accordingly, dumpers/dipperswhich are used within the factory will be entitled to Cenvat credit as capital goodsImpugned order denying credit set aside and appeal allowed: CESTAT [para 5 to 7]


Shri Krisna Urja Project Ltd Vs CCE (Dated: February 9, 2017)

CX - Appellants are engaged in the manufacture of Car Carriers trailers - Theypurchase duty paid motor vehicle chassis [CTH 8706] from manufacturers like TataMotors - Sometimes, the customers buy the chassis and give the same to the appellantfor making car carriers trailers and coupling the same with the chassis to deliver acomplete car carriers vehicle - dispute is relating to the appellant's claim for exemptionunder Notification No. 6/2002-CE (Sl. No. 239) as amended by Notification No.6/2006-CE (Sl. No. 87) - Entry in the said notification states that all goodsmanufactured in a factory and used within the same factory for building a body orfabrication or ‘mounting' or fitting of structure or equipment on a chassis falling underheading No. 8706 of a motor vehicle of Chapter 87 are exempt - conditions for availingexemption is that the chassis should have been duty paid - Revenue denied theexemption on the premise that the car carrier trailer manufactured by the appellant is‘not mounted' on the duty paid chassis and accordingly, the exemption as above is notavailable - appeal to CESTAT. Held: It is not the condition in the notification that thegoods manufactured and mounted / fitted on the chassis should be non-detachable -No such meaning can be attributed to the notification entry - The mounting or fittingmentioned in the notification thus covers the scope of the activity carried out by theappellant in the manufacture of car trailers and their integration with the prime movers(duty paid chassis) - commonly understood meaning of "mounting" is to fasten anapparatus in position - coupling/ mounting of car trailer on the chassis will fall withinthe scope of mounting or fitting of the structure on the chassis - impugned order is notsustainable, hence set aside - appeals allowed: CESTAT [para 4, 7]


Parekh Prints Vs CCE (Dated: November 22, 2016)

CX Appellants who are job workers engaged in processing of fabrics relied on thedeclaration of the price of grey fabrics by the merchant manufacturer for arriving atthe AV of the processed goods and paid duty accordingly On the ground that themerchant manufacturer had not declared the correct price, differential duty demandconfirmed and equivalent penalty imposed appellant before CESTAT. HELD: In the caseof Lajya Dyeing & Bleaching - 2008-TIOL-56-SC-CX the apex court held that in theabsence of any allegation in the notice that the appellant knew or deliberately failed todeclare the correct cost of the grey fabrics and there being no legal requirement forprocessors to verify the correctness of the declaration furnished by the owners, theextended period of limitation is not applicablethis decision is squarely applicable - thesole allegation against the appellant for invoking extended period is that the appellantdid not file the price declaration lot wise -revenue has not shown any authority whichrequired the job workers to file the price declaration lot wise no admission of anysuppression on the part of the appellant appeals, therefore, allowed on the ground oflimitation : CESTAT [para 5, 6, 7]


Nestle India Ltd Vs CCE (Dated: December 15, 2016)

CX – Appellant is engaged in the manufacture of Maggie Noodles which are cleared onpayment of duty on the value as per section 4A of the Central Excise Act – they alsosell Maggie Noodles to M/s.Agro Tech Foods Ltd. under an agreement as per which theMaggie Noodles supplied on the contract price are to be distributed by the buyer undersales promotion scheme – accordingly, they have to provide the pack of MaggieNoodles along with Sundrop Oil freely – appellant valued these goods under section 4of the CEA – SCN issued by the department wherein it was contended that the exciseduty has to be paid on the value arrived at as per section 4A and not section 4 of CEA,1944 – demand confirmed and upheld by Commissioner (Appeals) – appeal to CESTAT:HELD – Identical issue has been decided by the Supreme Court in the appellant's own

case although for different product but fact is that the nature of supplies and furtherfree distribution by buyer are same - Following the ratio of the Supreme Courtjudgment in the case of Jayanti Food Processing (P) Ltd - 2007-TIOL-150-SC-CX , noerror in mode of valuation adopted by appellant - impugned order set aside and appealallowed : CESTAT [para 4]


R G Kadam Vs CCE (Dated: August 26, 2016)

CX – Whether the main appellant is eligible to avail the benefit of deemed credit undernotification no.29/96-CE on the inputs received from the merchant manufacturer andwhether central excise duty is payable on the additional charge received by mainappellants when appellant was paying excise duty on the processed goods on the basisof selling price of merchant manufacturer. HELD: It is the case of the Revenue thatmain appellant has availed deemed credit as per Notification No. 29/96-CE which is notavailable as the grey fabrics received from Raymond Ltd was a processed one and hadundergone processing of scouring - Notification 29/96-CE is about eligibility to availdeemed cenvat credit if the inputs and outputs are covered as per the table annexed tothe said notification -it is not in dispute that the input received by the appellant andoutput are covered under the said notification–revenue's claim that the grey fabrics assupplied is a processed goods due to the activity of scouring seems to be incorrect astextile terms and definitions compiled by the Textile Institute Committee has definedscouring as nothing but treatment of textile materials - the grey fabrics remains greyfabrics after scouring - if the Central Excise Tariff had understood the scouring as aprocess, definitely the same would have been included in the chapter notes - merewashing of grey fabrics before being delivered to the main appellant for furtherprocessing will not amount to a process carried out on the fabric and the said fabricscannot be called as processed fabrics - in view of this, appellant is eligible to avail thebenefit of notification no.29/96-CE –As for valuation, since the CE duty payable on theprocessed fabrics is paid on the value at which the said fabrics are sold by merchantexporter, the question of main appellant getting additional amounts/charges are of noconsequence as even if these are included, they may not exceed the value as declaredby the merchant manufacturer - since the Bench is holding in favour on merits, thequestion of visiting appellants with penalty does not arise - impugned order isunsustainable and set aside – appeals allowed : CESTAT [para 7, 8, 9, 10, 12, 13]


Pel Industries Ltd Vs CCE (Dated: November 29, 2016)

CX - Though the assessee was required to deposit entire amount of duty and penalty,however, the Tribunal has reduced said pre-deposit amount to Rs. 50.00 Lakhs againstconfirmed liability - Therefore, it is incorrect to say that assessee had not paid theamount as on 23.01.2006, which was ultimately confirmed by Tribunal, in disposingtheir appeal by Order dt.29.06.2012 and reversed by assessee on 10.09.2012,pursuant to said Order - They claimed refund after adjustment of interest and penaltyof (25%) from the deposited amount of Rs.50.00 lakhs - Assessee is required to payinterest till 23.01.2006 and consequently, also eligible to claim the benefit to discharge25% of penalty, since, they complied with the direction of Tribunal Order dated29.06.2012, in the sense that the required amount due pursuant to said Order waslying with department as on the date of the order of the Tribunal - Impugned orderbeing devoid of merit is set aside: CESTAT


Themis Medicare Ltd Vs CCE, C & ST (Dated: December 9, 2016)

CX - Assessee manufactures drugs which were cleared for export and sale in domesticmarket - They claimed cash refund of cenvat credit for inputs used for manufacturingexported goods which couldnt be utilised domestically as well as exempted from exciseduty under Notfn. 4/2006-CE - Said refund was rejected on the ground that the finalproducts were exempted and without considering evidences regarding use of the inputs

in the manufactured final product - Matter needs to be scrutinized: CESTAT (Para 2,6)


VFC Industries Pvt Ltd Vs CCE & ST (Dated: September 21, 2016)

CX - Cenvat Credit - Assessee's factory was destructed due to fire - SCN was issued forrecovery of CENVAT Credit on inputs/raw materials - Credit is not available on inputswhich are neither used in the manufacture of the final product, nor even issued for themanufacture and lying in the assessee's premises - Penalty is imposable under Rule15(1) of Cenvat Credit Rules, 2004 for contravention of any of its provisions: CESTAT


Mahle Engine Components India Pvt Ltd Vs CCE (Dated: August 2, 2016)

Central Excise – Place of removal – Freight and transit insurance borne by the sellerappellant for delivery of the goods at the buyer's premises – Such place has to beconsidered as the 'place of removal' – Denial of Cenvat credit of service tax paid onoutward freight for delivery of goods at the buyers' premises, unjustified – Impugnedorder of demand set aside.

The delivery terms clearly showed that the purchase order is the FOR destinationbuyer's site and also based on the terms of the purchase order, the appellant hadeffected supplies, showing freight to be billed to the seller. The documents available inthe file clearly indicate that the ownership/ title of the goods remained with the seller,the appellant herein, till the same reach the destination i.e. the buyer's premises. Thesaid fact is evident that the cost towards the transit insurance has been borne by theappellant. Thus, service tax paid on the outward transportation of the goods isconfirming to the definition of input service contained in Rule 2(l) of the Cenvat CreditRules, 2004 for the purpose of availment of Cenvat credit. The Hon'ble Supreme Courtin the case of Roofit Industries and Emco Ltd. have held that when the freight and thetransit insurance are borne by the appellant for delivery of the goods at the buyer'spremises, such place should be considered as the 'place of removal'. Further more,evidently the freight component has been incurred by the appellant and the same hasformed the part of transaction value, on which duty liability has been discharged. Thus,the price at which the goods were sold to the buyers should be considered as the pricefor the purpose of determination of the 'place of removal'. Since, freight is forming apart of the transaction value, the same should be considered as input service for thepurpose of taking Cenvat credit. (Para 5, 6)


S Kumar Ltd Vs CST (Dated: January 2, 2017)

CX - Issue arises over valuation of processed grey fabrics - In earlier round oflitigation, Tribunal has categorically held that no penalty is imposable on assessee andsaid order has not been taken up in appeal by revenue - Same has attained finality &no penalty is imposable: CESTAT (Para 2, 7, 9)


Dr Reddys Laboratories Ltd Vs CC, CE & ST (Dated: November 18, 2016)

Central Excise - Rebates allowed to assessee vide O-i-O, rejected vide O-i-A - Thenallowed by HC & Apex Court - Subsequent rebates sanctioned but appropriated bydepartment - Such appropriation illegal as issue already settled by Apex Court:CESTAT (Para 2, 5, 6)


Vilax Industrial Fabrics Vs CCE (Dated: August 19, 2016)

Central Excise – CENVAT Credit – In view of the precedents, assessee is not liable topay interest and penalty on the wrongly availed credit since assessee had reversed thecredit before utilization of the same and a small portion of the credit that was utilizedwas reversed along with interest before issuance of SCN – Hence, impugned order setaside – Appeal allowed. [paras 3, 4, 5]


Sksispat And Power Ltd Vs CCE & ST (Dated: January 25, 2017)

CX – Duty demanded on alleged clandestine removal of Sponge Iron, penaltiesimposed – appeal to CESTAT. Held: No instance of any removal of goods has beenadduced by the authority - No buyer of goods or evidence of removal such as,transportation of goods, receipt of consideration is appearing on record nor thereseems to be any investigation on this account - In such scenario, only on the basis ofacceptance of shortages by Shri R. S Tomar, who is employee of Appellant company,the duty demand cannot be upheld - duty demand cannot also be upheld merely onthe grounds of shortages which have been reported to be in the range of less than 3%of the total quantity recorded in the books – Order set aside and appeals allowed:CESTAT [para 7]

CX - Confiscation of seized cash and appropriation thereof against the duty demand -Commissioner has confirmed confiscation merely on ground of preponderance ofprobabilities, stating that the amount is of sale proceeds of short found goods - Noinvestigation has been done to link the said cash with any receipt of clandestineremoval - Appellant had produced copies of their accounts to the authorities, showingthe cash appearing in books - In such circumstances, when no evidence has beenadduced to show the cash as pertaining to sale proceeds of any clandestine removal,cash seized from residence cannot be confiscated and adjusted against demand:CESTAT [para 8]

CX – Penalties – As duty demand against the main appellant does not survive,therefore, no case for penalty is made out against the said persons: CESTAT [para 8]


Security Systems Vs CCE (Dated: December 27, 2016)

CX - Assessee engaged in manufacture of door locks and door fittings and availedcenvat credit of duty paid on inputs and capital goods received in its factory for use inor in relation to manufacture of such final product - CX officers have not visited thefactory of assessee to ascertain whether disputed goods were actually received infactory and used for intended purpose - Since based on investigation carried out inpremises of M/s. Arihanta Metal Company, proceedings were initiated against assesseefor confirmation of Cenvat demand, such action by Department is not proper andjustified - It cannot be held that disputed goods covered under invoices were notreceived for intended use by assessee: CESTAT


CCE Vs Davo Laboratories (Dated: October 5, 2016)

Central Excise – Classification – Skin care preparation – Medical or Ayurvedic–RoopAmrit products marketed to specific target group with a promise of cosmeticimprovement in appearance – Held classifiable as cosmetic or toilet preparation fallingunder Chapter 3304 and not an Ayurvedic preparation –License/Certificate issued byDrug Controller is inconsequential.

In order to classify a product under Central Excise tariff the first and foremost testshould be the common parlance understanding, unless a specific definition is provided

in the entry itself. It is nobody's case that the cosmetic or toilet preparations shouldnot have curative property. Similarly, ayurvedic medicament may have incidentaloutcome of beauty enhancement. In such situation, it is necessary to go by thecommon parlance of the practice of trade.Ordinarily a medicine is prescribed by amedical practitioner and it is used for a limited time and not everyday, unless it is soprescribed to deal with specific decease like diabetes. It was also held that normalscientific and technical meaning of the terms and expression should not beautomatically adopted but preference should be given to the popular meaning that is tosay, the meaning attached to them by those using the product. As such, thecertificates issued by Drug Control Authorities or affidavit given by Vaidyas cannot bethe basis to decide the classification of these products.

There are two tests to determine a drug or not. First, the ingredients of medicamentshould be mentioned in the prescribed ayurvedic tests and second the said productmust be understood as ayurvedic medicine or drug in common parlance. The relevantmaterial placed on record clearly establishes that the products in question aremarketed to specific target group with a promise of cosmetic improvement inappearance. Following the rulings on point it must be noted that manufacture licenseissued by Drug authorities is of no relevance for classification as medicament underCentral Excise tariff. Consequently, the products under question cannot be consideredas ayurvedic medicines. They are more appropriately classifiable under Chapter330449910, 33049990 as submitted by Revenue. Since the products are to beclassified as cosmetic or toilet preparations, the valuation has to be done underSection 4A of Central Excise Act, 1944 read with Notification No. 13/2002-CE (NT)dated 01.03.2002.With reference to denial of SSI exemption, held that since theappellant assessee had established that the factory is located in Rural area, denial ofSSI exemption is unjustified as such is unsustainable to that extent. (Para 9-12)

Central Excise – Extended limitation period – Scope – Bonafide belief regarding aproduct being Ayurvedic medicine and not a drug – Irrelevant in invoking extendedlimitation period by Revenue.

The appellant-assessee was not registered with the department for payment of CentralExcise duty. The main plea of the appellant is that they were under bonafide beliefregarding their product being ayurvedic medicine. The appellant bonafide belief alonecannot be the ground for not invoking demand for extended period. Even consideringthis plea, it is not clear how for the product "complete solution" the appellant can holda bonafide belief for classification under medicine. There is no ailment for which thesaid product is prescribed as cure even in the submissions made by the appellant-assessee, there is no case law or ground to defend their bonafide belief to the effectthat the said product can be considered as a medicine in any manner. There is nojustification even for the alleged bonafide belief. No verification or enquiry has beenmade by the appellant with the jurisdictional Central Excise officer regarding thecorrect classification or duty liability while they have taken efforts to get theregistration certificate from the Drug Controller etc. It is not clear as to type of effortregarding clarifying the excise duty liability. There is no justification to interfere withthe finding of the lower authorities on this ground. (Para 14)

Central Excise – Classification anomaly – Wrong classification adopted by assesseeFirm –Penalty of equal to duty amount has been imposed on the firm – Penaltyimposed on the partners of the firm on facts held unjustified – Commissioner hasrightly dropped penalty on partners – No interference warranted. (Para 14)



Surya Roshni Ltd Vs CCE (Dated: November 28, 2016)

CX - Assessee engaged in manufacture of general lighting services Bulbs, FluorescentTube Lights, High Pressure Sodium Vapour Lamps (HPSVL) & High Pressure MercuryVapour Lamps (HPMVL) - Admittedly, capital goods were capable of being used even

before installing entire range of capital goods - It is undisputed fact that capital goodswere received when assessee was paying CX duty on clearances and that the capitalgoods were used for manufacture of excisable goods on which duty was paid -Assessee opted to avail the benefit of Notfn 50/2003-CE w.e.f. 02/01/2006 - Before02/01/2006, said capital goods were used for manufacture of dutiable goods - In viewof Spenta International Ltd - 2007-TIOL-1089-CESTAT-MUM-LB , since capital goodswere received when dutiable final products were being manufactured, Cenvat creditwas admissible to assessee: CESTAT


CCE, C & ST Vs Sirpur Paper Mills Ltd (Dated: November 16, 2016)

CX - prior to 07.07.2009 there is no provision in law requiring the assessee to reversethe credit in case of writing off inputs/capital goods as obsolete - Department hasissued SCN basing on board Circular 645/36/2002-CX - Lower authorities have reliedupon this circular and also noted the fact that, though the subject items have beenwritten off they are still lying in assessee's premises and the same are capable andavailable for use and therefore, assessee is not required to reverse the credit: CESTAT


CCE Vs RPG Sciences Ltd (Dated: September 13, 2016)

CX –Appellant was issued with SCN dated 11.6.2002 demanding duty of Rs.23.35 lakhsu/s 11A of the CEA, 1944 for the period from 22.12.1999 to 30.6.2000 on clearance of'diphenoxylate hydrochloride' from their unit at Belapur to their unit at Ankleshwar –the original authority confirmed the demand but did not determine interest liability anddid not impose penalty – revenue is aggrieved and has filed appeal before CESTAT.

HELD: SCN had not brought out any evidence of misdeclaration or suppression of factswith intent to evade duty and the notice cannot, in absence of such evidence, invokethe extended period to demand duty - this fact is admitted in the impugned order –asthe notice itself is barred by limitation, the Revenue appeal, devoid of merits, isdismissed: CESTAT [para 6, 7]


Nulife Pharmaceuticals Vs CCE (Dated: January 13, 2017)

CX – Cenvat credit disallowed on the capital goods, viz. a luminium sheets, flushpartition, flush door, ceiling falling under CH 7610 of the CET which were used formaking cooling room.

HELD: Goods falling under CH 7610 are not covered under the definition of capitalgoods - even the goods of CH 7610 was not used for manufacture of any component orpart of any machine prescribed under the definition of capital goods - since the goodsin question does not qualify either as input or capital goods the cenvat credit is notadmissible –Bench agrees with the lower authority in disallowing the credit on the saidgoods – impugned order upheld, appeal dismissed : CESTAT [para 5]


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

CX -CENVAT - Appellant clearing inputs as such to their sister concern - though theypaid/reversed amount equal to the credit taken on basic excise duty, education cess &secondary & higher education cess, they did not pay/reverse the credit of 4% specialadditional duty of customs in respect of the said inputs - SCN issued - demandconfirmed, upheld by Commissioner (Appeals).

HELD :Fact that the appellant had reversed the credit of basic excise duty but did notreverse the credit on account of special additional duty has not been satisfactorilyexplained and when the fact of the matter is that they were reversing the credit ofspecial additional duty when removal were effected to other customers - very clearly,there is an element of suppression and intention to evade duty -if the situation wasrevenue neutral, as argued by appellants, there was no need to even to reverse theinput credit of basic excise duty - in view of the judgment of the apex court in the caseof Star Industries - 2015-TIOL-234-SC-CUS , the plea of revenue neutrality is notacceptable - the order passed by Commissioner (Appeals) is legal and proper and doesnot call for any interference -both the appeals are accordingly dismissed : CESTAT[para 8, 10, 11]


Hindoostan Spinning And Weaving Mills Ltd Vs CCE (Dated: September 14,2016)

CX –Commissioner(A), though confirming the eligibility to refund of unutilised cenvatcredit, proceeding to uphold the rejection of refund on the ground that original dutypaying documents were necessary for verification of eligibility for refund and thatstatutory records of stock receipts and disposal would not suffice for this purpose –appeal before CESTAT.

Held: Issue is whether the furnishing of stock register mandated by statute is sufficientevidence of credit having been properly availed– in conformity with the decisions ofTribunal in the cases of Shivkumar Ashok kumar, Doongursee Diamond Tools (P) Ltd,Punjab Beverages (P) Ltd., Camlin Ltd. and Anil Products Ltd., the contention of theappellant that the stock register should suffice as proof of eligibility to avail credit isacceptable - original authority is, therefore, directed to ascertain and process therefund claim accordingly – appeal allowed: CESTAT [para 8, 9]


Ruby Mills Ltd Vs CCE (Dated: April 21, 2016)

CX – CENVAT credit – EA-2000 audit officers pointed out to appellant that the creditavailed is inadmissible – appellant reversing the same – SCN was issued on13.02.2006 seeking appropriation of credit reversed and proposing imposition of fineand penalty – AA dropping the proposal for interest and penalty but in Revenue appeal,Commissioner(A) confirmed interest liability and imposed equivalent penalty – appealto CESTAT. Held: SCN is apparently demanding interest and penalty for an amountwhich cannot be confirmed beyond five years – therefore, if the demand of reversal ofCENVAT credit is not sustainable as per provisions of section 11A of CEA, 1944, therecannot be any demand of interest and penalty – therefore, AA was correct andappellate authority was in error in setting aside the order of the AA dropping penaltyand interest – appeal allowed: CESTAT [para 4, 5, 7]


Ramdev Blocks Vs CCE (Dated: October 31, 2016)

CX - Appellant engaged in the manufacture of solid/hollow cement concrete blocks [CH6807.90] cleared the said goods by describing the same in their invoice as 'light weightconcrete blocks' and paid duty at concessional rate of 4% adv under notificationno.10/2002-CE dated 1.3.2002 -SCN issued to appellant proposing to deny the saidexemption on the ground that the appellant's product does not classify as lightweight(solid and hollow) concrete building blocks since density of the concrete blocks wasmore than 1600 kg/cubic.mtr whereas hollow concrete blocks should be less than 1600kg/cubic.mtr as clause 8.3 of the Indian Standard IS:2185(Part-II) 1983- demandconfirmed, therefore,appeal to CESTAT - appellant also filed refund claim of theamount deposited during investigation but since the same rejected,another appeal also

filed before CESTAT.

HELD: It can be seen from the entry of the subject goods i.e. lightweight (solid orhollow) concrete building blocks, no IS specification was mentioned in the saidnotification - in such a case, the goods cannot be categorized as per IS specification -revenue has heavily relied upon the IS specification to classify the product as otherthan lightweight concrete building blocks which is not correct - in the absence of anyIS specification or absence of any definition in the CET in respect of lightweightconcrete building blocks, the description prevailing and known in the commercialparlance should be adopted - appellant are selling their product describing itlightweight concrete building blocks in their invoice and the same has beenacknowledged by the buyer - this shows that in the trade, appellant as well as buyeridentifies the product as lightweight concrete building blocks -therefore, the appellantis entitled for the exemption notification no. 10/2002-CE dated 1.3.2002 (sr. no.23)-the demand is also clearly time barred as extended period could not have beeninvoked - since the main appeal of the appellant is being allowed, no question arisesfor personal penalty on the partner of the firm - since the demand is not sustainable onmerit as well as on limitation, appellant is entitled for refund of the amount depositedduring investigation of the case - all the three appeals allowed: CESTAT [para 8]


Plascap Industries Vs CCE (Dated: January 12, 2017)

CX – Appellant claiming exemption under notification 4/97-CE by classifying goods as"Pencil Sharpeners and blades thereof" – claim rejected by lower authorities so appealto Tribunal. Held: Product is in the shape of a blade covered by a plastic shell – bladecan be taken out of plastic shell by use of button – blade is divided into number ofsegments and each segment can be snapped off after use – multiple use for cutter –what is exempted under notification 4/97-CE is pencil sharpener – blade cannot beconsidered as a pencil sharpener – Appellants are not entitled for exemption –clearance value to be added to determine eligibility under notification 6/98-CE –Appeals dismissed: CESTAT [para 5]


Charms Cosmetics Pvt Ltd Vs CCE (Dated: February 20, 2017)

CX - Valuation - Toothpaste cleared to M/s Gillette Diversified Operations Ltd who hassuccessfully bid for supply of the impugned goods to the CSD at a price that isdetermined by the bidding process, correctly valued u/s 4 of CEA, 1944 - That a‘maximum retail price' is affixed on the impugned package does not, of itself, renderthe goods liable to comply with the provisions of the law relating to assessment u/s 4Aof the CEA, 1944 - intent of the appellant is thus, unambiguously, clear, i.e., it is notfor retail sale - Consequently, it is the value determined under section 4 of CentralExcise Act, 1944 that will determine the basis for computation of duty liability -Impugned orders set aside and appeals allowed with consequential relief: CESTAT[para 11 to 13]



Merind Ltd Vs CCE (Dated: February 2, 2017)

CX - Notfn 245/83-CE - abatement of 15% in the notification is a command and not acontention – being bereft of any finding of suppression, extended period not invokable– impugned order set aside and appeal allowed with consequential relief: CESTAT byMajority [para 21, 23]



Merck Ltd Vs CCE (Dated: January 5, 2017)

CX – Dispute relates to valuation of special packing used for 'physician samples'(distributed free of cost) which was alleged to have been deliberately excluded fromthe assessable value adopted for clearance - Appellant submits that the value ofspecial packing is included in the overall cost of production of the traded goods andadoption of proportionate value is the most logical and appropriate method – appeal toCESTAT. Held: 'Physician samples' are liable to duty on removal, and in view of thespecial nature of packaging, costs must be computed of the sample including thespecial packaging cost - however, as per appellant, this incremental cost has beensubject to duty and, in the absence of any reasonable evidence that this cost has notbeen included or adjusted in the duty paid on 'physician samples', impugned order setaside and appeals allowed : CESTAT [para 9]


Lucent Technologies Hindustan Pvt Ltd Vs CCE (Dated: January 23, 2017)

CX - Issue is whether erection, installation of base station controller, base trans-receiver station tower at site is a manufactured goods and whether the same is liableto duty. Held: Issue has been settled in favour of appellant by various judgments ofthis Tribunal viz. MTNL - 2016-TIOL-2832-CESTAT-MUM , BPL Mobile CommunicationLtd. - 2007-TIOL-809-HC-MUM-CX . - following the same, impugned order is set asideand the appeals are allowed: CESTAT [para 2, 3]


Kundil Ispat Ltd Vs CCE & C (Dated: December 15, 2016)

CX – Duty liability in terms of rule 96ZP(3) of the CER, 1944 – Whether demand issustainable when Rules were held ultra vires by the Gujarat High Court judgment inthe case of Krishna Processors.

HELD: Supreme Court in Shree Bhagwati Steel Rolling Mills - 2015-TIOL-283-SC-CXheld that the penalty and interest are not chargeable by omission of Section 3A,however, as regard the demand of duty, it is legally recoverable – in Mittal Alloys -2013-TIOL-1118-HC-P&H-CX Punjab and Haryana High Court has held that theomission of Rule 96ZO(3) would not affect any obligation or liability already accrued orincurred, therefore, the confirmation of demand and waiver of penalty and interestmaintained - impugned order stands modified to the above extent - appeal is partlyallowed in the above terms : CESTAT [para 4]

Moreover, it is clear that default in payment of duty is only a bonafide mistake -Department has no evidence to show that there was suppression of facts or willfulmisstatement with intent to evade payment of duty - Hence, SCN issued on 9.2013 byinvoking extended period for default period of 9.2010 to 3.2012, is time barred and thedemand is set aside - Appeal allowed. [paras 8, 9]


GTM Teleshopping Pvt Ltd Vs CCE & ST (Dated: March 1, 2017)

CX - Appellants/ assessees – M/s Global Tele Mall and M/s GTM Teleshopping Pvt. Ltd.(GTM) were engaged in selling goods called "Keshyog Oil and Keshyog Herbal PowderHair Wash/Shampoo” - During the period January 2006 to March 2007 the goods weremanufactured by vendor M/s Gurukripa Consumer Care Products, Indore - Disputerelates to categorization of these impugned goods either as Ayurvedic medicine orcosmetic/ toilet preparations and whether or not the processes undertaken by GTM willamount to manufacture. Held: Classification of similar product came for examinationbefore the Tribunal in CCE, Chandigarh vs. Saini Hair Products = 2003-TIOL-188-

CESTAT-DEL - Considering the nature of product as per the labels and the literaturesubmitted, approval by the State Drug Authorities and the ratio adopted by theTribunal in Saini Hair Products (supra), the product, in question, are rightly classifiableunder Chapter 30 as Ayurvedic Medical Preparation - Appellants are undertakingrepacking from bulk to retail, labelling and rendering the product fit for retail sale toconsumer and as such the processes undertaken will amount to manufacture -impugned goods are liable to be classified as Ayurvedic medicine under Chapter 30 andduty liability has to be discharged wherever applicable on manufacture of such itemsby the manufacturer as well as by the person undertaking the process of labelling,packing and rendering the product fit for retail sale - Central Excise duty confirmedand penalties imposed on the assessees/appellants are confirmed; penalties imposedon individuals under o-in-o are set aside - The appeals of assessees/appellants aredisposed of in the above terms - appeals by Revenue and assessee againstCommissioner (Appeals) order are dismissed: CESTAT [para 10, 12, 14, 16]


CCE Vs Max Power Infosystem (Dated: January 2, 2017)

CX - Assessee availed benefit of Notfn. 50/2003-CE for which assessee paid cash onaccount of reversal of cenvat credit on inputs - Assessee is not required to reverse thecredit which was availed at the time when the final product was dutiable while optingfor availing the exemption under said Notification - Where the assessee is not in aposition to utilize the Cenvat Credit Account, refund claim is to be given in cash -Therefore, assessee is entitled for refund claim of amount paid by assessee on accountof reversal of credit in cash: CESTAT


Krishnapatnam Oils And Fats Ltd Vs CC & CE (Dated: November 2, 2016)

Central Excise - Limitation - When there is no demand of duty for violation of the Rule8(3A) of CER, 2002, interest alone cannot be demanded. Moreover, the delay inpayment of duty is due to bonafide mistake and as such, no suppression of facts canbe alleged and extended period is not invocable.

Appellant defaulted in duty payment for the period 9.2010 and paid it on 23.10.2010,however interest on delayed payment was paid only on 31.3.2012 - Department tookview that appellant defaulted for the period 9.2010 to 3.2012 and as per Rule 8(3A) ofCER, 2002, they should have paid the duty consignment wise, but raised only interestdemand on the duty paid in each month for the defaulted period - Appellant'ssubmission that the delay in payment of duty is due to non-clearance of their chequeby bank due to non-rounding off of decimals in the cheque and the fact was notinformed to them by bank and it is only a bonafide mistake, is acceptable since,department has produced no evidence to disprove it - It is seen that the demand is notof duty but of interest for delay in payment of interest - Interest is not calculated upondelayed amount of interest for defaulted period but was calculated on the duty thatwas correctly paid in each month during the defaulted period - As Department hadapplied Rule 8(3A), it should have calculated the duty demand accordingly i.e., onconsignment wise during defaulted period - Instead, it is not understandable that whythe department had accepted the monthly wise payment of duty and had demandedonly interest on each month's already paid duty - If Rule 8(3A) is applied, there shouldhave been determination of duty and consequent interest and penalties accordingly -Without principal amount i.e., duty demand, interest cannot be demanded alone -Hence, in the SCN when there is no demand of duty for violation of the Rule, interestcannot be sustainable. [paras 1, 2, 5, 6, 7]

Moreover, it is clear that default in payment of duty is only a bonafide mistake -Department has no evidence to show that there was suppression of facts or willfulmisstatement with intent to evade payment of duty - Hence, SCN issued on 9.2013 byinvoking extended period for default period of 9.2010 to 3.2012, is time barred and thedemand is set aside - Appeal allowed. [paras 8, 9]


Shervani Industrial Syndicate Ltd Vs CCE (Dated: September 26, 2016)

CX - SCN was issued for denial of Cenvat credit availed on dry cell batteries whichwere brought into their factory on payment of duty and were cleared alongwith thegoods manufactured by them i.e. torch and the combined pack attracted MRP and wasaccordingly assessed under Section 4A of CEA, 1944 and duty was discharged oncombined goods - Ground for framing charge was that dry cell batteries are not used inrelation to manufacture of final product - Dry cell batteries are brought into factory andthe same have suffered duty and dry cell batteries are cleared as accessories alongwiththe goods manufactured by assessee on payment of duty - Accessories of final productcleared alongwith final products are eligible to be input as per definition of "input"provided by Rule 2k of CCR, 2004 - Appeal allowed: CESTAT


Shroff Brothers Vs CCE (Dated: October 26, 2016)

CX - Whether drawing of Copper Wire from Thicker Gauge to Thinner Gauge andVarnishing of same for the purpose of insulations would amount to manufacture -Goods in question were not excisable as Apex Court had held in case of Technoweldindustries - 2003-TIOL-37-SC-CX that drawing of wire from thicker gauge to thinnergauge does not amount to manufacture - Varnishing of Copper Wire which lead toSupper Enamelled Copper Wire is for purposes of increasing the conductivity of CopperWire, and the Copper Wire remains Copper Wire only - Insulating a Copper Wire hasbeen held to be as not amounting to manufacture - As much as the activity of assesseedid not amount to manufacture, question of availability of small scale notfn orotherwise does not arise: CESTAT


Sarthi Rubber Industries Pvt Ltd Vs CCE & ST (Dated: December 17, 2016)

CX - Compounded levy - When there is an undisputed fact of no production during thematerial period, no duty liability can be fixed on the assessee - The closure of units,admittedly beyond the control of the assessee/appellant, is not to be treated as afailure to comply with the provisions and conditions of the notification during theperiod of forced closure of the units - The non-production of excisable goods during thetwo months of March and April 2013 can more appropriately termed as ceasing to workrather than failure to comply with the provisions - Presumption of Revenue regarding‘failure' of the assessee to follow the special procedure resulting in a differential dutydemand for six months is not legally sustainable - Non-exercising power under para 7[Power to condone failure to apply for special procedure] by original authority is notlegally sustainable: CESTAT [para 7, 8, 10, 12]



Super Cabinets Vs CCE (Dated: November 15, 2016)

Central Excise – Manufacture of TV cabinets on job work basis – Amount of duty mustbe based on necessary quantitative details with mathematical precision – Cabinetsmanufactured to the requirement of Principal on supply of molded material – Nothingon record to suggest that value of the materials was given – Hence, value of moldedcomponent material supplied by the Principal has to be included in the assessablevalue which has been done by the assessee – Demand set aside. (Para 7-9)


Wabco India Ltd Vs CCE (Dated: October 7, 2016)

Central Excise – CENVAT credit - The dispute involved concerns denial of cenvat crediton Management Service, Share Registry Service, Advertisement Service, CompanySecretary Service, and Chartered Accountant Service for the period April 2012 toMarch 2013 commonly availed by the four units of the appellant wherein the corporateoffice is also located, primarily on the ground that they are hit by Rule 7 (d) of CenvatCredit Rules (CCR), 2004.

Held: It is very clear from Rule 7(d) of CCR 2004 that w.e.f. 1.4.2012, credit of servicetax attributable to service used in more than one unit shall be distributed pro rata onthe basis of turn over during the relevant period of the concerned unit to the sum totalof the turnover of all the units to which the service relates during the same period -However, in the instant case, the disputed services are not definitely in the nature ofthose which are attributable or utilized in all the units; it would be commercial andavailed by corporate office which is situated in the premises of the appellant herein,and as per Rule 7 (c), credit of service tax attributable to service used wholly in an unitshall be distributed to that unit - while the Commissioner (Appeals) has made mentionof the discrepancy in period of dispute in the OIA, however, he has neither agreed nordisapproved the same - the matter is remanded to Commissioner (Appeals) who willgive a reasonable opportunity of hearing to appellant and pass a reasoned andanalysed order in the matter. [Para 4, 5]


Wichitra Auto Ltd Vs CCE (Dated: October 5, 2016)

Central Excise – CENVAT Credit - It is an admitted fact on record that the appellant-jobworker has made use of the imported goods of the principal manufacturer and suchgoods came to him with the endorsed copy of the Bill of Entry, based on which theappellant availed credit – The credit has been denied by Revenue, and is agitatedherein.

Held: The matter is remanded to the adjudicating authority for the limited purpose ofcausing enquiry and also to take revenue protection measure in respect of endorsedBill of Entry - Once the authority is satisfied on such aspect, particularly in terms of theproviso to Rule 9(2) of CCR 2004 as to the usage of the goods and also the genuinityof the claim; the appellant is entitled to CENVAT credit – considering the nature ofdispute, the remand shall be processed by May 2017. [Para 6, 7, 8]


Sheela Rani Textiles Ltd Vs CCE (Dated: September 23, 2016)

Central Excise – Valuation – Duty liability arising on certain additions to value of jobworked goods is in dispute herein.

Held: (a) It cannot be said that both parties to the contract [Principal manufacturer &Job worker] had no knowledge of emergence of waste while fixing the job charges; thisbeing one of the material fact, value of the scrap generated is necessarily to be addedto the assessable value of the job worked goods [Para 1]

Advance paid by Principal to job worker was not on earnest money deposit but bothparties agreed for utilisation of such deposit for capital expenditure toupgrade/renovate the machinery used for production of good and maintain quality ofoutput manufactured for the principal manufacturer - record reveals that the financialassistance given by the principal manufacturer to the job worker appellant was toserve the above objective, hence the notional interest on the deposit has been rightly

computed by the authority and added to the assessable value. [Para 2.1, 2.2]

The amount received on account of fulfilment of hank yarn obligation is in relation tomanufacture only, hence includible for assessment to duty - When order of theadjudicating authority does not bring out appellant's contumacious conduct to causeevasion and in all issues question of law was involved, there shall be no penalty. [Para3, 6]


Super Packs Vs CCE (Dated: January 20, 2017)

CX – Issue is Whether the appellant is entitled for the refund in respect of duty/servicetax paid on input/input services used in the manufacture of goods supplied in 100%EOU – AA sanctioned the refund claim but in Revenue appeal, Commissioner(A)denying the same by following Tribunal's decision in Tiger Steel - 2010-TIOL-1256-CESTAT-MUM – appeal to CESTAT. Held: As per rule 5 of CCR, 2004, no exclusion wasprovided to deemed export i.e. supplies made to 100% EOU, therefore, the bare term“exports” includes export of goods out of India as well as deemed export – This veryissue has been considered by Gujarat High Court in the case of EI Dupont - 2013-TIOL-1172-HC-AHM-CX and wherein it is held that deemed export i.e. supplies made to100% EOU are at par with physical export and all benefits otherwise available toexports out of India shall be mutatis mutandis applicable to clearances made to 100%EOU – decision of Tribunal in Tiger Steel (supra) cannot be said to be a good law,therefore, same is distinguished – since issue is no longer res integra, refund underrule 5 is admissible to clearances of goods made to 100% EOU – impugned order setaside and appeal allowed with consequential relief: CESTAT [para 5]


Shree Kailash Textiles Pvt Ltd Vs CCE (Dated: January 20, 2017)

CX - Appellant had received capital goods during the year 2000-01 when they wereworking under compounded levy duty scheme, according to which they were notentitled for taking credit on inputs and capital goods - From March, 2002 appellantopted out of the compounded levy scheme and started paying CE duty on theclearances - issue is whether the credit on capital goods should be considered on thedate of its receipt or any date subsequently. Held: In view of LB decision in SpentaInternational Ltd - 2007-TIOL-1089-CESTAT-MUM-LB as the appellant at the time ofreceipt of the capital goods was not legally entitled for Cenvat credit, therefore, at laterstage also they are not eligible for Cenvat credit on the capital goods – as regardslimitation, department was not aware whether the capital goods were received inMarch 2002 or prior to that, therefore, credit details shown in the monthly return doesnot help the appellant to prove that there is no suppression of facts – extended periodof limitation is correctly invoked – impugned order is upheld and appeal is dismissed:CESTAT [para 5]


Warana Sahakari Dudh Vs CCE (Dated: January 19, 2017)

CX - Whether CE duty is payable on quality control samples drawn by appellant. Held:Larger Bench in case of Dabur India Ltd. - 2005-TIOL-171-CESTAT-DEL-LB has settledthat duty on quality control samples cannot be demanded when the record of controlsamples is maintained - in the present case, entire demand is based on the records ofquality control samples maintained by appellant - following the ratio of the LB decision,no duty is chargeable on control samples - order set aside and appeal allowed: CESTAT[para 5, 6]


CCE Vs Surindra Engineering Company Ltd (Dated: January 9, 2017)

CX - Assessee cleared the goods manufactured without payment of duty - Certificateissued by competent authority for goods cleared for the intended use specified in Notfn03/2004-CE - It is nowhere mentioned in notfn that the competent authority isrequired to issue certificate in favour of supplier of goods - Notfn clearly specified thatcertificate is to the effect that such goods are cleared by supplier for intended use -Admittedly, certificate is not challenged - Certificate in question has not been disputedby Revenue - Assessee is entitled for benefit of exemption notification: CESTAT


CCE Vs Sirpur Paper Mills (Dated: September 19, 2016)

Central Excise - CENVAT Credit - Demand period is prior to the amendment ofdefinition of ‘inputs', which restricted the use of MS angles, beams and other steelitems for construction of shed, foundation, etc., - Moreover, various precedents haveallowed credit on MS items used for fabrication of machinery - Hence, in the case, thecredit denied as irregularly availed on steel items and cement is admissible - Hence,Revenue's appeal is dismissed . [paras 2, 3]


Veekay Auto Accessories Vs CCE (Dated: February 17, 2017)

CX – Clubbing of clearances - If the firms are fictitious, then the question of confirmingdemand against them does not arise - dual approach of holding individual units asliable to central excise duty and at the same time holding these units as fictitious firmscreated by Shri V.K. Arora, as held by Original Authority is legally unsustainable - Notallowing the cross examination of the persons whose statements were relied upon andissuing the impugned order after almost 16 months of conclusion of hearing clearlyviolates the principles of natural justice - Not knowing the excise provisions for dutyliability is not a factor for setting aside the duty demand: CESTAT [para 9, 10, 12, 13]



Tafe Motors And Tractors Ltd Vs CCE (Dated: February 2, 2017)

CX - On finalisation of provisional assessment, it was revealed that there was someshort duty paid by the assessee and there was some excess duty paid by them -appellant's plea for neutralizing the shortages with the excess and to refund the excessduty paid by them was not accepted by the lower authorities, therefore, appeal toCESTAT. Held: In view of the majority decision in Hindustan Zinc Ltd. - 2015-TIOL-2427-CESTAT-DEL assessee is entitled for adjustment of excess duty paid with theshort paid duty during the period of provisional assessment – impugned order set asideand appeal allowed with consequential relief: CESTAT [para 4, 6]


Tara Chand Naresh Chand Vs CCE (Dated: February 15, 2017)

CX - Allegation of Clandestine manufacture and removal of Gutkha - Case has whollybeen made out mainly on the basis of the statement of main partner, Shri Tara Chandand there is no sufficient corroborative evidences available in the form of supplies andreceipt of raw material and the dispatch / transportation of the extra production by theappellant and to whom the supplies of extra production were made, and which werethe means of transport for supply and disposal of said extra production - independentpanchnama witnesses retracted their statements though after a lapse of long period -It is on record that panch witnesses deposed before the Commissioner saying that they

did not witness the testing of the speed of machines by the Central Excise officers andfurther the said witnesses had not been present during the recording of the statementof Shri Tara Chand and they did not send the annexures to the statement - Revenue'scase which is based mainly on the statement of the partner, Shri Tarachand cannot besustained - no merits in the impugned order, hence appeals allowed with consequentialrelief: CESTAT [para 6.2, 6.3]


Uttam Products Vs CCE (Dated: September 19, 2016)

Central Excise - Benefit of Abatement - Rule 10 of Pan Masala Packing Machines Rules,2008, provides that assessee is eligible for abatement of duty during the period forwhich the goods were not produced, if such period is not less than 15 days - It is seenthat appellant had installed the second machine on 16.4.2011 but had paid the dutyfor the whole month under compounded levy scheme - It is not disputed that thesecond machine was neither installed nor operated during the period 1.4.2011 to15.4.2011 - Appellant is entitled for abatement provided u/r. 10 for the period forwhich the goods were not produced, since no duty can be demanded when no goodswere produced even as per the Central Excise Act and Rules - Hence, denial of claimfor refund of excess paid duty by holding that abatement provided u/r. 10 is notapplicable to appellant as the machine was not installed prior to 16.4.2011, is notsustainable - Appeal allowed. [paras 1, 2, 3]


Sri Vasavi Polymers Pvt Ltd Vs CCE (Dated: July 26, 2016)

Central Excise - Offence - based on intelligence and factory visit and furtherinvestigations it appeared to the department that Sri Vasavi Polymers Private Limited(VPPL) were clearing superior branded PVC pipes (Sri Vasavi brand) in the guise ofinferior brand ( Sri Devi brand) to their marketing agency, Sri Vasavi Agencies (SVA)and thereby evading central excise duty - On adjudication lower authority, in OIOdated 20.04.2006, confirmed duty demand along with interest thereon, imposed equalpenalty on VPPL and further imposed penalties under Rule 26 on SVA and also on SriG. Bhaskar Rao - The demands and penalties are agitated by the firms and individual -Revenue is aggrieved by the dropping of demands proposed on valuation of clearancesbetween the two firms (VPPL & SVA) viewed as interconnected units within themeaning of section 2(g) of MRTP Act,1969, having financial and business interest ineach other; apart from reduction in duty demand to the extent of 5% in respect of theOIO agitated by the Parties above - vide Final Order No. 195 & 196/2007 dated05.02.2007, the Tribunal set aside the Order-in-original dated 20.04.2006; however,the same was recalled on an ROM application filed by Revenue, and the appeals aretaken up for disposal herein.

Held: there is no statutory impediment in Section 35B (1B) or Section 35E for the twoChief Commissioner members of the Committee to form opinion and issueauthorization order by circulation - It is also not specifically mandated that the saidcommittee should issue such order only after jointly conferring and holding theirmeeting at one place and on one date/time - Since the departmental appeal contains'grounds of appeal'', it is upto the appellant, whether assessee or Revenue, to chooseand put forth the grounds of appeal that such appellant may find appropriate - Thecontentions regarding maintainability of appeal No.E/109/2007 per se are not tenableor acceptable [Para 10]

It is not the case that both the notices though issued for overlapping period andalleged undervaluation involve identical issue or dispute - The 2004 notice allegesundervaluation by manipulating brand clearances at lower values, while the 2005notice alleges undervaluation by reason of the two units allegedly being relatedpersons - adjudication of any one of the notices will not be an impediment foradjudication of the other notice on the grounds of res judicata - Neither can it be heldthat adjudication of 2005 notice and its setting aside will obstruct adjudication of the

2004 notice on the grounds of "limitation'' - While it is settled law that subsequent SCNon identical issue to identical notice cannot invoke extended period of limitation, thereis no such estoppel for issue of simultaneous or subsequent SCNs invoking extendedperiods, for identical noticees, even for identical periods, when the issues alleged inboth SCNs are different - the case laws cited by the Parties are with regard to issue ofsubsequent notices, and not with regard to adjudications on different issues raised indifferent SCNs. [Para 20, 21]

In appeal no. 848/2006, the adjudicating authority has considered all the evidencesthat have emerged during investigation and narrated in the notice; the impugned ordercannot be set aside on the grounds of limitation or res judicata - In the departmentappeal No.254/2007, there is no merit in the contention that the reduction of demandis erroneous - The lower authority's finding that since demand has been based onhighest quality brand whereas, as per records, there is receipt of other brands too ,butin minor quantity and hence 5% discount of demand is to be granted; is based ondetails in the chart extracted from the sales records and sales invoices of SVA - thedepartment cannot also claim its calculation is unimpeachable in the face of theaforesaid findings of the lower authority - the 5% of reduction in the demand proposedin the SCN is just and reasonable and therefore does not call for any interference [Para23, 24]

In appeal No.848-A/2006, the appellant, Shri G. Bhaskar Rao has challenged thepenalty imposed on him under Rule 209A/26 of Central Excise Rules, 1944/2002 -though he is the Managing Director, there is no finding or conclusion in the orderestablishing his guilt in the matter; hence the imposition of the said penalty on Shri G.Bhaskar Rao is not justifiable and requires to be set aside - In respect of appeal No.144/2007 the appellant is aggrieved by the imposition of penalty under Rule 26 ofCER, 2002, and relied on case laws supporting the contention - Following the dictum inthe said case laws, the imposition of penalty on the appellant being a partnership firmrequires to be set aside [Para 25, 26]


Universal Radiators Ltd Vs CCE (Dated: September 29, 2016)

Central Excise – Exemption – In the earlier round of litigation, Revenue agitated theTribunal ruling dated 29.08.2007 before the Apex Court in Civil Appeal Nos.2878-2879/2008, raising two issues - The first one was whether M/s. Southern Press Tolls(SPT) was entitled to exemption under Notification No.164/87 dt. 10.6.87 for thegoods cleared to M/s. Universal Radiators Ltd. (URL), without observing the Chapter XProcedure of Central Excise Rules, 1944, and the second issue was whether penaltywas leviable on M/s. URL under Rule 209A of the Central Excise Rules, 1944 –Meanwhile, SPT had approached the High Court of Madras in C.M.A No.2230 of 2008 –Both the issues were remanded to the Tribunal by the respective Courts, now taken upfor disposal herein.

Held: Revenue was repeatedly asked whether any materials are before it to show thatSPT was manufacturer of the goods in question and whether there was anyinfrastructure to do so - there is no reply from Revenue; accordingly, no cogent andcredible evidence came from Revenue to prove their case - the notice issuing authorityhas prejudged the matter to say that the appellant, M/s. SPT has made contraventionof law at the outset of the notice without narrating material evidence found in thecourse of enquiry to make such allegations and no evidence was evaluated - Thisclearly shows that a perfunctory approach has been made by the authoritieswhimsically to make the adjudication following an empty formality - A very cryptic andsketchy order has been passed without independently causing any enquiry into theallegations made in SCN to ascertain whether the allegations were based on anyindependent cogent and credible evidence; the authority merely reiterated theobservations of the investigation and reached to the decision without objectiveexamination - When Revenue makes an allegation, it should ensure that suchallegation is based on evidence. [Para 8-10]

The Central Excise Act, 1944 requires that there should be a manufacture of excisablegoods in order to invoke Section 3 of the said Act - the definition of "manufacturer" isprovided by Section 2(f) of the said Act, and covers activity resulting in 'manufacture'as taxable event – in terms of the Act, "excisable goods" should have been emerged inthe course of manufacture - There is no whisper in the order as to what was themanufacturing infrastructure facility available with the appellant, M/s. SPT - There wasno such factory in absence of any evidence - in absence of factory and in absence ofmanufacture so also in absence of any manufacturing activity carried out by appellant,manufacture of excisable goods by SPT is inconceivable; accordingly, adjudicationrelating to M/s. SPT is set aside; consequently that relating to URL is unsustainableand set aside. [Para 11-13]


CCE Vs Dharampal Premchand Ltd (Dated: August 23, 2016)

CX - Whether additive mixtures are excisable products - Additive mixture incapable ofbeing marketed - It is not a final product and is not capable of being consumed - Noevidence adduced by Revenue to prove its marketability - Respondents not liable topay NCCD as no duty levied on intermediate product - Credit available on duty paid onadditive mixtures - Thus, it is revenue neutral - SCNs defective as they are based onassumptions: CESTAT


Dhanalakshmi Industries Pvt Ltd Vs CCE, C & ST (Dated: November 18, 2016)

CX - Assessee who are manufacturers of MS CTD bars are availing CENVAT Creditfacility on inputs, capital goods and ST paid on input services - Since assessee hasdischarged liability of tax along with interest prior to issuance of SCN, imposition ofpenalty is unjustified in terms of sub clause 3 of section 73 of FA, 1994: CESTAT


DSR Steels Pvt Ltd Vs CCE (Dated: Nonember 17, 2016)

Central Excise - Duty Payment documents - Availment of Cenvat credit on the basis ofinvoices issued by the manufacturer of inputs - Permissible - Rule 9 (1) (e) (f) (g) ofCenvat Credit Rules, 2004 inapplicable - Impugned proceedings set aside. (Para 5, 6)


Pdop Pile Sales Pvt Ltd Vs CCE (Dated: February 9, 2017)

CX - SSI exemption - Brand name "Sheetal" was already present on the plasticcontainer purchased, therefore, fitting of the container in the fabricated steel frame,for use by civic bodies to handle municipal waste, cannot be said to result inmanufacture of branded dustbins - order set aside and appeals allowed withconsequential relief: CESTAT [para 7, 8]



Herbal House Vs CC, CE & ST (Dated: November 23, 2016)

Central Excise - Adjudicating authority - Exercise of Suo motu powers on remandbeyond remand directions - Sustainability - Remand order directed adjudicatingauthority to determine classification/duty liability referencing specific items only -Adjudicating authority Suo motu picking other items as well constitutes going beyond

Remand order and is wholly illegal and unsustainable. (Para 4)

Central Excise - Natural hair wash (Amla Shikakai Powder) is cosmetic and notAyurvedic as determined by the lower authorities upheld. (Para 5, 8, 10)


DM Gears Pvt Ltd Vs CCE & ST (Dated: February 24, 2017)

CX - Whether sales made by DMGP to DDIL are entitled to SSI benefit - Inasmuch asboth the units have separate manufacturing premises with equipments and the factthat they are manufacturing different automobile parts, leads to conclude that both areseparate manufacturing units - Constitution of two firms are different - DMGP is aPrivate Limited Company whereas DDIL is a Limited Company and hence they haveseparate legal existence and separate registrations not only for Central Excise but alsofor Sales Tax and other government departments - DMGP as well as DDIL will beeligible for benefit of SSI exemption under Notfn 8/2003-CE.

Brand Names of DMGP and DDIL - Two brand names are not identical and are beingapplied on different products manufactured by DMGP and DDIL - There is also nothingon record to suggest that there is any dispute regarding use of brand names -Consequently, brand names are different and separate for two units.

Interconnected undertakings - The concept of interconnected undertaking is applicablefor determination of value in terms of Section 4 of CEA for the purpose of chargingexcise duty of goods on which the duty is chargeable ad-valorem - Since variousabatements/discounts claimed by appellant have not been extended, matter remandedto Original Adjudicating Authority to re-determine the value for purpose of chargingexcise duty, after extending eligible abatements/ discounts as per law: CESTAT


Hindustan Petroleum Corporation Ltd Vs CCE, ST & C (Dated: August 25,2016)

Central Excise – Valuation - Appellants are a Government of India Undertakingengaged in refining of crude and marketing various petroleum products - They have aninstallation at Rajamundry, registered as a Private Bonded Warehouse to receivevarious petroleum products, including SKO, in bond, to store and to clear them onpayment of applicable duty - On examination of valuation of SKO (PDS) cleared toother oil companies on payment of duty by HPCL, department took the view that (i)HPCL have recovered higher consideration from other Oil Companies towards the saleof SKO (PDS) than the assessable value arrived at based on APM / subsidized price; (ii)Duty was paid on the clearances of SKO (PDS) on the basis of the value declared in theCentral Excise Invoices; and (iii) Value declared in the Central Excise Invoices wasmuch lower than the value actually recovered from other Oil companies – A SCNproposing recovery of duty allegedly short paid on SKO(PDS) was issued andadjudicated wherein the demand was confirmed with interest and penalty, culminatingin the instant appeal.

Held: the department was fully aware of the issue under dispute in view of thedepartment Circulars dated 21.06.1996, 30.06.2000 and 18.09.2000 and in view ofthe fact that they had been filing returns throughout the impugned period - Theadjudicating authority has in fact referred to all these three Circulars, hence thedepartment cannot then allege suppression of facts and invoke extended period oflimitation under proviso to sub section (1) of Section 11A - SCN issued on 04.04.2006,for the period March 2001 to September 2004, will necessarily be hit by limitation andrequires to be set aside on the ground of limitation [Para 6, 7]


Hinduja Foundries Ltd Vs CC, CE & ST (Dated: September 19, 2016)

Central Excise - CENVAT Credit - Impugned MS items were used for making moulds,erection of overhead crane, tracks for movement of goods etc., - Moreover, it is notdepartment's case that the impugned items are not received in factory or were usedfor laying foundation or construction of shed - Hence, in view of the precedents whichallowed credit on MS items used for fabrication/manufacture of capitalgoods/parts/accessories or machinery, credit denied on MS items on the ground thatappellant did not produce sufficient evidence to show the use of impugned items, isallowed. [paras 2, 3, 4, 5]


Hindustan Coca Cola Beverages Pvt Ltd Vs CCE (Dated: October 13, 2016)

Central Excise - Penalty - input credit taken on service tax paid in respect of hall rentand hiring of meeting place was reversed by the appellant when found that no suchcredit is admissible - Hence, levy of penalty is unwarranted - appellant also claims thatthe erection and commissioning services was availed for the purpose of watertreatment plant, for which service tax paid was denied to be available as CENVATcredit.

Held: When erection and commissioning of water treatment plant was essential, thereshould not be denial of CENVAT credit of service tax paid in respect of such serviceavailed for recycling of the water for use in manufacture - When the authority did notrule out use of the area for parking of the vehicles which are used in the manufacturingactivities of the appellant, there cannot be disintegration between the input service aswell as the purpose of the business and manufacture - Therefore, denial of CENVATcredit on this count is inconceivable - Accordingly, appellant gets relief on this countalso - (Para 6, 7, & 10).


Hindustan Adhesive Ltd Vs CCE, C & ST (Dated: April 22, 2016)

Central Excise – Manufacture of self adhesive tapes – Invocation of extended limitationperiod – Scope – Appellant made appropriate disclosures by filing returns regularlywherein the Cenvat credit taken was clearly disclosed –Availment of the credit waswithin the knowledge of the Revenue – Department neither asked for any clarificationsnor conducted audit inspection of documents – Nothing was placed on record toindicate willful mis-statement or suppression of material facts committed by appellantwith an intention to evade duty – On facts held, invocation of extended period oflimitation is illegal. (Para 9, 10)


CCE Vs P D Industries Pvt Ltd (Dated: September 17, 2016)

CX - Iissue regarding eligibility of CENVAT credit on MS angle, channel, joist, HR coil,chequered plates and flat, has already been settled by Tribunal in various cases -Disputed goods during material point of time were not covered under exclusion clausecontained in definition of input - Since disputed goods are used for erection/fabricationof capital goods only in plant, same have the nexus with manufacture of final productin factory of assessee - Definition of input is broad enough to take within its ambit, thegoods which are used for or in relation to manufacture of final product either directly orindirectly: CESTAT


Sada Shiv Steel Mills Vs CCE (Dated: August 8, 2016)

CX – Duty demand confirmed against manufacturers along with interest and penalty -

Duty demand on assessee based merely on third party records not sustainable inabsence of independent tangible evidence of clandestine manufacture and clearance -Duty demand on alleged shortage of finished goods not sustainable when weighmentdone on average basis and not on actual basis - Also no corroborative evidenceproduced by Revenue - Confiscation of cash not sustainable in absence of evidence toprove that it is sale proceeds of clandestinely cleared goods - Duty demands withpenalty and interest set aside: CESTAT


CC, C & ST Vs Nelcast Ltd (Dated: November 18, 2016)

CX - Assessee were issued a SCN alleging wrongful availment of credit on the invoicesissued by M/s Temple Precision Metal Products India (P) Ltd., on the ground thatinvoices were not proper - Goods are not duty paid is without basis for the fact thatjust because the goods could not be physically verified at the factory during visit,construing that assessee could have received scrap that were not duty paid is incorrect- Assessee have produced invoices which were verified with gate registers and otherrelevant records and also the bills of entry from the end from which they have receivedthe goods - Failing to receive the report from jurisdiction of supplier cannot bind theassessee in any way to stop availing the credit and it is check undertaken byDepartment only: CESTAT


Varun Steel Industry Vs CCE & ST (Dated: August 23, 2016)

Central Excise - Personal Penalty - stock of M.S.Ingot, M.S.Bar/Flat, Melting Scrap etc.was cleared by partnership concern M/s. Varun Steel Industry without payment of duty- the entire amount of duty and equivalent amount of penalty imposed upon thepartnership concern was paid - equivalent amount of penalty has also been imposedupon the individual under Rule 25 of the Central Excise Rules, 2002 in adjudication,upheld by Commissioner (Appeals), and agitated herein on the grounds inter alia thatSri Sanjeev Bagaria was only a partner of partnership concern M/s. Varun SteelIndustry and cannot be treated as manufacturer; and that penalty under Rule 25 of theCentral Excise Rules, 2002 cannot be imposed upon the appellant.

Held: Confiscation and penalty under Rule 25 of the Central Excise Rules, 2002 can bedecided against a producer, manufacturer, registered person, warehouse or theregistered dealer; since the appellant is none of these, therefore, no penalty can beimposed upon the appellant under the cited rule - no observations recorded by bothauthorities below, to justify the imposition of penalty under Rule 26 of the CentralExcise Rules, 2002 - In the case of Pravin N.Shah-vs.-CESTAT, the Gujarat High Courtheld that once a penalty has been imposed upon the partnership firm then separatepenalty is not imposable upon the partner of the firm because a partner is not aseparate legal entity; personal penalty set aside. [Para 5, 5.1]


Kailash Auto Builders Pvt Ltd Vs CCE (Dated: November 11, 2016)

Central Excise - Recovery of interest - Extended limitation period - Scope - Period oflimitation not only applies to the principal amount but also applies for recovery ofinterest - Revenue failed to establish any element of suppression, fraud, misstatementwith intent to evade payment of duty - Proceedings to recover interest by invokingextended limitation period, wholly illegal and unsustainable.

The short question involved in this appeal for consideration is, as to whether, extendedperiod of limitation in terms of the Proviso to Section 11A ibid can be invoked forrecovery of interest on delayed payment of principle amount; and penalty can be

imposed where there is no element of suppression, fraud, misstatement etc, withintent to evade payment of duty.

It is an admitted fact on record that the differential duty was paid by the appellant onpointing out the mistake by the department on 11.01.2005 and thereafter the SCN wasissued on 15.04.2008, seeking recovery of the interest amount and for imposition ofpenalty. The said SCN has been issued under the proviso to Section 11A ibid. The factsregarding finalization of the provisional price, issuance of supplementary bills, paymentof differential duty etc. were known to the department, and in such eventuality, thedepartment should have issued the SCN within one year from relevant date i.e.10.01.2006. In this case, since admittedly the SCN was issued on 15.04.2008, thesame is barred by limitation of time. The law is well established that period oflimitation not only applies to the principle amount but also the same applies forrecovery of interest.

The authorities below have imposed equal amount of penalty of Rs. 5,57,885/- underRule 25 read with Section 11AC of the Central Excise Act. On perusal of the records itis clear that the authorities below have not specifically brought on record any evidenceregarding the malafides on the part of the appellant to defraud the GovernmentRevenue. Since Rule 25 ibid is subject to the provisions of Section 11AC ibid, whichclearly provides that in case of fraud, collusion, willful misstatement, suppression offacts, equal amount of penalty shall be imposed, and in absence of any specificfindings to that effect by the authorities below, the penalty imposed in the adjudicationorder and confirmed in the impugned order is not sustained in the eyes of law. Hencethe appeal is allowed to the extent of setting aside the amount of interest and penaltyconfirmed in the impugned order. (Para 7-10)



Monnet Ispat Ltd Vs CCE (Dated: January 25, 2017)

CX - M/s. Cethar Vessels Pvt. Ltd. manufactured and supplied boilers to M/s. MonnetIspat Ltd. - Since the goods by nature cannot be transported because of sheer size,the entire boiler was fabricated, disassembled and cleared to factory of M/s. MonnetIspat Ltd. in various consignments - Various parts and components cleared in dis-assembled form should be classifiable under 8402 and would be entitled to CenvatCredit - Even goods such as angles, channels and sections which are classifiable underchapter 73 and are used for fabrication in factory for manufacture of supportingstructures which ultimately become part of boiler would also be eligible for CenvatCredit: CESTAT


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

Central Excise - Valuation of motor vehicle chassis -Clearance of Chassis to the bodybuilder under a contract to built body upon chassis and deliver it to depot for final sale- Does not amount to sale of Chassis to the body builder - Rule 8 is not applicable - Ifthere is sale of chassis to independent buyers then the transaction value of suchchassis can be adopted for discharging Central Excise duty on chassis cleared to bodybuilder - Matter remanded.

The appellants were clearing the chassis under a contract to built body upon chassissupplied and thereafter deliver to the depots for final sale as vehicle to the intendedbuyers. Therefore the body builder is not buying the chassis from the appellant. Thereis no sale of chassis to the body builder. No evidence to that effect has beensubmitted. Further it is clear by the appellant own admission the body built vehicle iscleared from the body builder to the depot of the appellant and sold from there to thecustomers by the appellant. This clearly shows that there can be no sale of chassis

separately to the body builder.

Regarding valuation of such chassis the Revenue has applied provisions of Rule 8 forthe same. Whereas the appellants are claiming that there are independent sales ofchassis of similar nature and as such when there is a transaction value in terms ofSection 4 (1) (a) the same can be adopted for the chassis cleared to the body builder.Thus in a situation where the appellant is having independent sale of chassis, ex-factory, then the transaction value of similar chassis can be adopted for the valuationof chassis cleared to the body builder. This is in line with the provisions of ValuationRules 2000 as applicable during the relevant time. Rule 8 will not apply if some part ofproduction of excisable goods is cleared to independent buyers. In case the appellant ishaving sale of similar chassis to independent buyers then the transaction value of suchchassis can be adopted for discharging Central Excise duty on chassis cleared to bodybuilder.

It is notedhowever that the value adopted by the appellant for chassis cleared to thebody builder is based on the figures given by Costing Department of their corporateoffice. This has been categorically stated in their reply to the show cause notice. Thetransaction value in terms of Section 4 (1) (a) cannot be arrived at based on costingfigures provided by the corporate office of the appellant. And the appellants claimed inthe written submission before the Tribunal that they had sale of similar chassis tounrelated buyers. Now, this aspect requires verification with documents. In case theappellants were having independent sales of similar chassis, ex-factory, then thevaluation of chassis cleared to body builder during the relevant period can be arrivedat based on such independent transaction value. This aspect is required to be verifiedby the Original Authority. Accordingly, the matter is remanded back to the OriginalAuthority for re-adjudication afresh. The appellant shall be given adequate opportunityto present their case before a decision is taken. (Para 4-6)


Metaplast Exim India Pvt Ltd Vs CCE (Dated: January 20, 2017)

CX - Notfn. 102/2007-Cus - Refund - Appellant a 100% EOU and imported goodswithout payment of duty for use in the manufacture of final product - part of theimported goods were sold in domestic market as such on payment of customs dutyincluding 4% Additional duty and refund claimed in terms of notfn. 102/2007-Cus -original authority rejecting refund on the ground that appellant had not paid Additionalduty at the time of importation as required under para 2(a) of the notification and hadnot fulfilled the conditions - Commissioner(A) upholding o-in-o, therefore, appealbefore CESTAT. Held: As per the mandate of law appellant, a 100% EOU, are notrequired to pay customs duty at the time of import of the goods as the same iscovered under bond and the goods after import moved to 100% EOU and it isdeposited in customs bonded premises, therefore, duty liability arises as and when thesaid imported goods cleared from EOU - The clearance from EOU of such goods istreated as import into India for the reason that right from port of import till the depositof the goods, it is in the custom bond, therefore, there is no occasion of the paymentof duty at the time of import - In view of the said statutory provisions, it cannot besaid that duty was not paid at the time of receipt which is prescribed under scheme ofEOU - The objective of the levy of Special Additional duty under Section 3(5) ofCustoms Act, is in lieu of sale tax/VAT - Refund under Notification 102/07-Cus isapplicable if the imported goods on which additional duty is paid is sold in the domesticmarket on payment of VAT - In present case there is no dispute that the goods so soldis on payment of VAT, therefore, the additional duty and VAT both cannot be leviedsimultaneously and to avoid this double taxation refund mechanism was providedunder Notification No. 102/07-Cus - Since VAT was paid by the appellant, refund ofadditional duty is admissible - Issue has also been addressed by the Tribunal in thecase of Adinath Trade Link - 2013-TIOL-874-CESTAT-AHM and Meneta AutomotiveComponents - 2015-TIOL-1048-CESTAT-DEL and refund under notification 102/2007has been held admissible - impugned orders set aside and appeals allowed withconsequential relief: CESTAT [para 5]


Quality Business Machines Vs CCE (Dated: January 17, 2017)

CX - SSI exemption - Notification 8/2003-CE - Appellants manufacture ‘Coin telephoneboxes' and it is alleged that the products manufactured by them bear the mark‘MULTIPLEX' under which M/s Multivision Electronics Pvt. Ltd. also manufactures thegoods - inasmuch as the goods are not entitled for SSI exemption as they bear a‘brand name' - appeal to CESTAT. Held: Statement of the key functionaries do notadmit that the brand has been borrowed from any other - issue of brands that are notidentified with any other user being entitled to exemption has been settled by Tribunalin case of Ample Industries - 2007-TIOL-1500-CESTAT-AHM - so also, it is also evidentthat the contention of Revenue that brand does not belong to appellants merelybecause it is used by someone else is also not borne out and the absence of suchevidence was noted in Minimax Industries - 2010-TIOL-882-CESTAT-DEL - followingthe decisions cited, impugned order is set aside and appeals are allowed: CESTAT[para 8, 9, 10]


Spectra Industries Ltd Vs CCE (Dated: December 15, 2016)

CX - CENVAT - Credit of 50% availed of duty paid on Capital goods at the time ofreceipt and remaining in the subsequent financial year - case of department is that thesupplier had paid only 50% of duty at the time of removal and the balance 50% waspaid belatedly - demand issued on the ground that when credit of 50% was taken, thesupplier had not paid the full amount of duty - demand dropped but interest imposed -in Revenue appeal, demand confirmed and interest charge dropped, in assessee appeal- assessee before CESTAT against confirmation of demand. Held: Since duty in itsentirety has been paid by supplier, as on today, there is no issue of wrong availment ofmodvat credit - even on the core issue of whether recipient of capital goods issupposed to verify regarding the payment of duty by supplier, it is a settled fact that itis not obligatory on the part of recipient to find out whether the correct duty asmentioned in the gate pass was paid or otherwise - Commissioner(A) has gravely erredin disallowing credit particularly after knowing that the short paid duty was alsodischarged by supplier - impugned order does not sustain, hence same is set aside -appeal is allowed: CESTAT [para 4]


Supreme Industries Ltd Vs CCE (Dated: January 23, 2017)

CX – 3/2004-CE – PVC pipes – exemption was denied by lower authorities on theground that the certificate of actual utilization of the pipes issued by Collector was latercancelled – appeal to CESTAT – appellant contending that certificates issued byCollector prove that the conditions laid down in the notification have been dulysatisfied and further once the supplies are made under certificates issued by specifiedauthority, exemption in not deniable at a later date. Held: Issue involved has beendealt with by the Tribunal in the case of Finolex Industries - 2017-TIOL-335-CESTAT-MUM – in favour of appellant assessee – therefore impugned order set aside andappeal allowed: CESTAT [para 4]


Xomox Sanmar Ltd Vs CCE (Dated: October 21, 2016)

Central Excise - SCN issued alleging that the appellants have suppressed the fact ofnon-availing of services, namely construction, erection, commissioning and installationservices and have availed cenvat credit wrongly on services not availed by them with aclear intent to evade cenvat duty - On adjudication, authority has demanded andappropriated the duty amounts already paid along with interest and also has imposedequal penalty under Rule 15 (2) of the Cenvat Credit Rules, 2004 read with Section

11AC - On appeal, lower appellate authority has upheld the OIO

Held: No dispute as to irregular availment of cenvat credit - appellant paid up thewrongly availed credit along with interest - issue that remains is whether theimposition of equal penalty is justified - it is not disputed that both the units weresituated adjacent to each other - the appellant has to be given benefit of doubt that itsimproper availment of credit was only on account of inadvertent error - the allegationof suppression of fact, willful mis-declaration do not stand to scrutiny - sub-section(2B) of Section 11A is very much applicable to this case and in fact show cause noticeitself should not have been issued - In the event penalty imposed is not sustainableand hence set aside - Appeal is allowed - (Para 3, & 4).


J J Foams Pvt Ltd Vs CCE (Dated: August 4, 2016)

CX - Penalty - There is no finding against assessee of any contumacious conduct,negligence or operating of their factory without proper consent as required under thelaw - Accordingly, imposed penalty is set aside and appeal stands allowed.

Assessee have produced a copy of Final Order dated 19.09.2014, by which Tribunal inrespect to fire incident which occurred on 18.06.2004 have held that there is nodispute as to occurrence of fire in factory of assessee - Further, rejection of remissionclaim is without any justified reason - Accordingly, order of Commissioner rejecting theremission claim is set aside and appeal allowed with consequential benefits toassessee: CESTAT


Jetex Carburettors Vs CCE & ST (Dated: December 23, 2016)

CX - Whether assessee is eligible to interest after expiry of three months from the dateof order of Tribunal or three months after the application seeking refund filed on26.02.2008 - Assessees are entitled to interest after expiry of three months from thedate of their application dt.26.02.2008 under Section 11BB of CEA, 1944: CESTAT


CCE Vs Raymond Ltd (Dated: February 7, 2017)

CX - Notfn. 67/95-CE - AED, whether payable on woollen yarn, polyester yarn, wooltows and polyester tows that are captively consumed for manufacture of fabric and areexempted from CE duty. Held: Reference to ‘assessed to duty' in section 3 of theAdditional Duties of Excise (T&TA) Act, 1978 is a clear indication that in the absence ofan assessment of duty under CEA, 1944, additional duty is not leviable - Revenueappeal dismissed: CESTAT [para 10, 12, 13, 16]



Pandey Furniture Pvt Ltd Vs CCE (Dated: November 23, 2016)

Central Excise - Furniture manufacture - Evasion of duty by creating dummy unit -Demand - Sustainability - Absent substantive evidence establishing relationshipbetween appellant and alleged dummy unit created, clubbing total turnovers to arriveat the excise liability islegally unsustainable - Merely that the suppliers of rawmaterials/buyers of finished goods common for both the units irrelevant to drawpresumption that arrangement is a façade to evade duty.

The electricity charges were paid by cheque and duly accounted for in M/s Seating

Systems accounts. There is separate balance sheet for both the units. Additionalmachinery was purchased by M/s Seating Systems in their own account as indicated inthe certificate of Chartered Accountant. 12 workers were employed in the factory ofM/s Seating Systems who were paid by the firm. Raw materials were procuredseparately though sometimes from the same suppliers, the payments were made bycheque. Merely that the suppliers of raw materials/buyers of finished goods commonfor both the units in most of the instances by itself does not make the existence of oneof the unit questionable. Although in the present case certain relationship could beestablished between the main appellant and M/s Seating Systems which is also notrebutted by the appellant, to make one of the unit as dummy units without legal statusand consider all its turnover on account of main appellant is not legally sustainable.The evidences procured and relied upon were scratchy and sporadic. These evidencesin no way lead to a conclusion that M/s Seating Systems has no legal existence for thepurpose of Central Excise.

Considering that the evidences have not categorically established all pervasive,management and financial control of M/s Seating Systems by the main appellant andalso considering that the physical existence and operation of M/s Seating Systemsbeing an admitted fact, the impugned order is not legally sustainable. Accordingly, thesame is set aside. The appeals are allowed. (Para 4-7)


Neoli Sugar Factory Vs CCE & ST (Dated: September 30, 2016)

CX - Cenvat credit of duty paid on welding electrodes used in repair and maintenanceof capital goods is treated as inputs and is admissible to assessee: CESTAT


Khaitan Agro Vs CCE & ST (Dated: January 3, 2017)

CX - Dispute is with respect to classification of product Soya Gum - Assessee hasaccepted the classification under heading 1522, as proposed by Revenue and have alsopaid the differential duty along with applicable interest - Assessee will be entitled tobenefit of payment of penalty of 25% of differential duty as differential duty as well asinterest stands paid by them before issue of Show Cause Notice: CESTAT


Shree Cement Ltd Vs CCE (Dated: November 25, 2016)

Central Excise -Cenvat Credit wrongly taken - Assessee held is liable to pay interest forthe period when it was lying in his account - Entire said credit was reversed evenbefore its utilization is inconsequential. (Para 6)


ITC Ltd Vs CCE & C (Dated: November 8, 2016)

CX - Availability of CENVAT Credit on MS Angles, MS Channels and MS Beams - Subjectitems are used for fabrication of tubes, pipes and fittings, storage tanks, accessories ofboiler, accessories of paper machines, cable trays and pulp mill - Assessee has alsoused subject items for fabrication of supporting for equipment & machinery - Creditallowed on subject items used for fabrication of components/spares/accessories ofcapital goods as explained in Chartered Engineer certificate produced by assessee -Imposition of penalty is also not sustainable: CESTAT


Great Oasis Enterprises Pvt Ltd Vs CCE (Dated: January 19, 2017)

CX - Valuation - Principal M/s Britannia Industries Ltd. provided packing machinery tothe appellant for carrying out the job work on their behalf - Revenue contended thatthe value of the packing machine is to be included/amortized in the AV of the goodsmanufactured on job work basis - demand confirmed, hence appeal before CESTAT.

Held: On limitation, the Bench finds that there is no dispute that the issue was not freefrom doubt - it was only after the LB decision in Mutual Industries Ltd. that the issuewas settled that the amortization cost of freely supplied goods by the buyer formanufacture of finished goods should be added in the AV - it is settled law that if alegal issue is based on interpretation and matter is referred to the Larger Bench itcannot be said that the assessee has suppressed the facts - during the period October1998 to February 1999 the judgment of Tribunal in Marathwada Glass was prevailingand which had held that appellant was not required to include the amortization cost inAV - extended period of limitation is not invokable - impugned order is set aside andappeal is allowed without going into the merits of the case: CESTAT [para 4]


Transpek Silox Industry Ltd Vs CCE & ST (Dated: January 4, 2017)

CX - Only issue to be resolved is whether the assessee had produced sufficientevidences before Commissioner (A) in support of their claim that Rail and Air TravelAgent Service had been received by them and used in or in relation to theirmanufacturing business activity - The documents/evidences now enclosed with appealmemorandum, according to assessee, support their claim - Matter needs to beremanded for scrutiny of these documents: CESTAT


Kandla Packaging Pvt Ltd Vs CCE (Dated: November 29, 2016)

CX - Whether the assessee is eligible to avail CENVAT credit of CVD and EducationCess paid against bill of entry by the principal manufacturer - Assessee claimed thatentire consignment had been transferred by principal manufacture in favour ofassessee and the same had been used in or in relation to manufacture of finishedproduct in their factory, on job work basis and later cleared it to principal manufactureon payment of duty - Assessee is eligible to CENVAT credit on CVD and Education cesspaid in said Bill of entry: CESTAT


ITC Ltd Vs CC, CE & ST (Dated: September 19, 2016)

Central Excise – CENVAT Credit – Credit is admissible on HR plates, Base plates, MSitems used in manufacture of capital goods, i.e., cable trays, pulp mill, paper machine,bearing, maintenance platforms and storage racks.

Credit denied on the ground that the items do not fall under the definition of capitalgoods/inputs – Definition of input w.e.f 1.4.2011 has drastically changed the scope ofthe definition saying that input means all goods used in manufacture of final productsand the period involved is after the amendment – No evidence to show that theimpugned items were used for any other purpose than that explained by appellant – Ithas to be seen that process of manufacture cannot be carried out without fabrication ofthe items like cable trays, storage racks, pulp mill and various precedents have heldthe same allowing credit – Hence, appeal allowed. [paras 2, 4]


CCE Vs Kwality Fun Foods And Restaurant Pvt Ltd (Dated: September 26,2016)

Central Excise - No material brought out to appreciate that transactions were underSection 4 (1) (b) of the Central Excise Act, depressing the value of cleared goods -Appeal dismissed.


Godrej Consumer Products Ltd Vs CCE (Dated: January 5, 2017)

CX - Assessee are the manufacturer of "Soap" and same was transferred to their sisterconcern for captive consumption - After clearing the to sister concern, no furtheractivity was done on the same and said goods were not used in production ormanufacture of other articles, so the said goods cleared by assessee in fullymanufactured and packed condition - When goods have been cleared by assessee tobe supplied free of cost with other products manufactured by their sister concern, thenvaluation of item in question will have to be made under Rule 8 of CEVR, 2000 - Thus,on merit, no reason found to interfere with impugned order.

Assessee have suppressed material facts from Department by not disclosing in theirmonthly ER-1 Return that they are indulged in institutional sale by clearing of ToiletSoap manufactured in their factory for "free distribution" alongwith other productunder Section 4 of CEA, 1944 - This clearly indicates that assessee have short paidduty during period September, 2006 to December, 2006 on account of 'free sample' forown use which is recoverable from them under Section 11A of Act, 1944 alongwithinterest - Thus, the demand is not time barred: CESTAT


Indorama Synthetics India Ltd Vs CCE (Dated: December 19, 2016)

CX - Allegation is that since Drawn Texturised Yarn of Polyester (DTY) is exemptedfrom payment of NCCD by virtue of exemption Notification No. 46/2003-CE dated17/05/2003, the appellants were not entitled to avail credit of NCCD paid on POYconsumed captively for manufacture of DTY - In appellant's own case - 2014-TIOL-1955-CESTAT-MUM and 2016-TIOL-1028-CESTAT-MUM the Tribunal has held thatsimultaneous availment of duty exemption and benefit of cenvat credit militatesagainst the very object of NCCD levy and would lead to huge leakages in revenue;therefore, the appellant is liable to reverse the credit taken along with interest thereon– no stay has been granted by the Bombay High Court in the appeal filed by theappellant – following the ratio of both the judgments, appellant has no case on merits,however, in both cases Tribunal has set aside the penalty, therefore, in this case too,the penalty is set aside – Appeal disposed of: CESTAT [para 4]


Messung Systems Vs CCE (Dated: December 30, 2016)

CX - Question to be decided is whether the appellants are liable to penalty for availingCENVAT credit twice. Held: It is not disputed that the appellants had availed the crediton the basis of the same documents two times, firstly in October 2006 to March 2007and again during April 2008 to September 2008 - It is also not disputed that theappellants did not reverse double credit till it was pointed out by the Audit -Responsibility to ensure that Cenvat Credit is taken correctly and on the basis ofproper documents is on the assessee in terms of rule 9(6) of the CCR, 2004 - Assesseedid not discharge that burden and availed and utilized credit on same documents again- Had there been no audit, undue benefit would have been taken by the appellants atthe cost of Revenue - fact that CENVAT credit has been taken over a period of 6months shows that they continued filing wrong declarations suppressing the facts andmis-declared the fact of wrongly availing CENVAT credit in their ER-1 declarations -plea of appellant that they had no intention to suppress is not tenable - penalty isimposable - appeal does not succeed and is accordingly dismissed: CESTAT [para 10 to12]


CCE Vs Shri Ram Udyog (Dated: October 4, 2016)

CX - Confiscation of seized goods - Factual position has been examined in detail inimpugned order before arriving at conclusion - Commissioner (A) also observes thatthe Department has not carried out any investigation to get supportive evidence on theallegation that M/s. Gulshan Metal Works was a non-existing dummy firm withoutmanufacturing facility - He relied upon the documentary evidence submitted by M/s.Gulshan Metal Works to support their independent existence and also of themanufacturing activity - No reason found to interfere with the impugned order:CESTAT


S H Haryana Wires Ltd Vs CCE (Dated: October 8, 2016)

CX - Duty demand with interest for alleged clandestine removal of goods - Statementof employee allegedly taken under duress - Copies of documents to be supplied to theassessee due to significant difference in documents relied upon by Revenue -Discrepancy in calculating closing stock of assessee to be ascertained by AdjudicatingAuthority - No evidence provided by Revenue to establish clandestine removal - Noneof the parameters required to prove clandestine removal were fulfilled - Statement oftransporter not taken by Revenue before alleging non-receipt of goods w.r.t. denial ofcenvat credit: CESTAT


CCE, C & ST Vs Beekay Special Steels (Dated: November 2, 2016)

CX - Issue whether the credit is admissible on MS items used for sheds and buildingswas in dispute during relevant period and was set to rest by amendment w.e.f.07.07.2009 - The period is prior to 07.07.2009 and assessee cannot be saddled withintention to evade payment of duty for this period for credit availed on MS items usedconstruction of sheds - Therefore invokocation of extended period is unsustainable anddemand is time barred - No penalty can be imposed: CESTAT


Tata Motors Ltd Vs CCE (Dated: January 20, 2017)

CX - CENVAT - Even though for intervening period, after insurance claim, theownership of the machine got transferred to the insurance company and thereafter theappellant has taken the ownership after making payment of Rs.12 lakhs, the factremains that the capital goods remained in the factory of the appellant and wassubsequently installed and used by them - Ownership is not the criteria for allowingthe credit on capital goods, the only criteria is that the capital goods should beinstalled in the factory of the assessee and used in the manufacture of final productwhich is not in dispute in the present case - credit admissible of CVD paid on importedcapital goods - impugned order set aside and appeal allowed: CESTAT [para 6, 7]



Skn Organics Pvt Ltd Vs CCE (Dated: October 21, 2016)

Central Excise - Rejection of CENVAT credit as no service tax was payable on theremuneration paid to directors - appellant claims such service tax is paid under reversecharge mechanism.

Held: Once service tax is paid, in absence of any adverse finding as to no depositthereof into the treasury, there cannot be denial of CENVAT credit - (Para 2)


Shivalaya Ispat And Power Pvt Ltd Vs CCE (Dated: August 9, 2016)

CX - Assessee engaged in manufacture of Sponge Iron and M.S. Ingots - It is allegedthat shortage of Sponge Iron and M.S. Ingots in different quantities found duringvarious periods – Alleged shortage of goods admitted by Shri Sukumar Ghosh and ShriIqbal Hingora - Clearances of Sponge Iron and M.S. Ingots allegedly through parallelinvoices signed and dispatched under the names of authorised persons - Duty demandbased on invoices not sustainable as neither substantive documentary evidenceprovided nor any further investigation done by department – Duty demands based onstatements of Shri Sukumar Ghosh not sustainable as the records based on which ShriSukumar Ghosh gave his statements were not brought on record - Statement of ShriNizamuddin Sheikh not reliable as there is lack of further corroborate evidence such asfrom whom invoices were recovered - No evidence provided to prove that unaccountedraw material was procured - Duty demand based on despatch advice, slip pads andsheets not sustainable due to absence of buyer of goods, transportation and no receiptof consideration – Author of these documents not identified - Demand based on allegedclandestine removal not sustainble due to absence of buyer of goods and lack ofinvestigation into removal of goods by Department - Penalty imposed set aside:CESTAT


Vetal Textiles And Electronics Pvt Ltd Vs CCE (Dated: September 21, 2016)

Central Excise - Classification - Issue is whether the impugned goods "grain cleaningand drying machine" manufactured and cleared fall under the tariff entry 84.37 orunder 84.19.

Held: Revenue has not brought out the nature and character of the impugned goodsunder the scope of tariff entry 84.19 - When the tariff entry is looked into, Revenuehas not discharged its burden of proof to show the very purpose that the machineryserves - The term 'drying' also appears in that entry but that cannot be read inisolation - Intention of the entry is to cover a machine or plant or laboratory equipmentfor the treatment of the materials - But the goods manufactured by the appellantserves no useful purpose of entry 84.19 rather it serves useful purpose of the entry84.37 being specifically used in the milling entry - no technical test to show that thegoods cannot be used for milling industry - Appeal allowed - (Para 4, 5, & 6).

2017-TIOL-599-CESTAT-MUM + Story

Johnson And Johnson Pvt Ltd Vs CCE & ST (Dated: January 18, 2017)

ST - Refund claim of appellant being not in dispute before any higher judicial authority,Section 11B Clause (B)(ec) will not get attracted - claim time barred: CESTAT [para5.2, 5.3]


Steel And Metal Tubes India Ltd Vs CCE (Dated: November 29, 2016)

CX - Assessee engaged in manufacture of Steel Tubes & Pipes and selling their productpartly at factory gate and partly through consignment agents by stock transferring ofgoods on payment of duty - It is evident that goods were partly sold at factory gateand duty was paid and remaining goods were transferred to Depot, therefore, Rule 7 ofCentral Excise (Valuation) Rules, 2000, is not applicable - Impugned order set asideand appeal allowed: CESTAT


Sree Ram Engineering Works Vs CCE (Dated: October 21, 2016)

Central Excise - Issue in the appeal relates to disallowance of cenvat credit on theground that debit notes etc. have been issued by appellant.

Held: no material on record to show that through the modus operandi of issuance ofthe debit note, the appellant had enabled the supplier to take refund of the dutyelement if any - appellant submits that debit notes do not relate to duty element andthe cenvat credit was availed on input and input service used in manufacture - appealallowed - (Para 4).


Cavinkare Pvt Ltd Vs CCE (Dated: October 5, 2016)

Central Excise - Clearance of Hair dye in retail packs containing 6 gms. each and sixnumbers of such pack were placed in mono-carton for convenience of sale and clearedthem claiming liability under Section 4 of the CE, 1944 - Revenue claimed that it willbe covered by Section 4A of the said Act since the goods were cleared for retail sale -Appellants submit that Rule 34 of the Standards of Weight & Measures (PackagedCommodities) Rules, 1977excluded applicability of the 1997 Rules in respect of thecommodity, if the net weight or measure of the commodity was 20 grams or 20 millilitres or less, when those were sold by weight or measure.

Held: In view of no factual difference raised by Revenue, proposition of the assesseeon the point of law is considered for the purpose of decision in the present appeals -the appellants had cleared 6 gms. sachet of the Hair Dye in a monopack cartoncontaining six numbers of such sachet and the weight of goods in individual sachetsatisfies the condition of Rule 34 of 1977 Rules - Therefore, goods are covered by Rule34 of the 1977 Rules and enjoy exemption from application of the 1977 Rules -Accordingly, the goods cleared by appellant are to be assessed under Section 4 of theCentral Excise Act without the same assessable under Section 4A thereof on the factsand circumstances of the case - Appeals allowed - (Para 4, & 5).


Leebo Metals Pvt Ltd Vs CCE (Dated: December 7, 2016)

CX - Assessee had availed credit on invoices issued by input supplier on whichappropriate duty has been paid by supplier - Dispute centres around the fact of receiptof consignments in their factory/job workers premises - Even though the statement ofShri Arun Kumar Singh, Area Manager of the Transport Company has been relied uponby adjudicating authority as well as first appellate authority, cross- examination of saidwitness was denied to assessee - In interest of justice, impugned order is setaside andappeals are remanded to adjudicating authority for allowing cross examination of saidwitness: CESTAT


Shree Cement Ltd Vs CCE (Dated: December 27, 2016)

CX - Eligibility of assessee for Cenvat credit of duty in respect of cement and TOR steelused for construction of plant and machinery in their factory premises - For expansionof capacity, assessee installed new plants - They procured duty paid steel items for thepurpose and also captively consumed some quantity of cement on payment of duty -Cement and TOR steel, which are basically construction raw materials, were essentiallyused in creation of RCC structures like floor, columns, rafts and retaining walls whichare nothing but RCC civil structures - They have a role and required in overallexpansion of plant and machinery by itself will not make the cement and TOR Steel as

cenvatable inputs which are to be used in manufacture/fabrication of identifiablecapital goods - Accordingly, appeals are without merit and are accordingly rejected:CESTAT


Allied Photographic India Ltd Vs CCE (Dated: January 24, 2017)

CX - Refund - Unjust enrichment - Section 11B, 11BB of CEA, 1944 - No interestliability devolves on the Central Government for any delay in transferring the amountto the Consumer Welfare Fund as the amount remains in the Consolidated Fund ofIndia and the only consequence of sanction is its shift to the Fund which is also underthe control of the Central Government - Appellant has no vicarious standing to act onbehalf of the Fund - Appeal dismissed: CESTAT [para 8 to 11]



CCE Vs Mahendra Sponge And Power Pvt Ltd (Dated: December 22, 2016)

CX - Assessee engaged in manufacture of sponge iron and Cenvat credit correctlyavailed by them on structural items - Credit was also available on oxygen and weldingelectrodes which were used for repair and maintenance purpose - Iissue has beendecided in favour of assessee by a plethora of judgements: CESTAT


Mahakaushal Sugar And Power Industries Vs CCE (Dated: October 14, 2016)

CX - Issue relates to admissibility of Cenvat credit in case of subject steel items fallingunder Chapter 72 of Central Excise Tariff - Subject goods except cement are entitled toCenvat credit facility under Rule 3 of CCR, 2002 and in view of Supreme Court decisionin case of Rajasthan Spg. & Wvg. Mills 2010-TIOL-51-SC-CX : CESTAT


Shagufta Garments Vs CCE (Dated: February 8, 2017)

CX - Even if a small part of the process is carried out with the help of pedal operatedmachine, the garments will remain as handicrafts - Benefit of notfn. 76/86-CEavailable: CESTAT [para 4, 5]



CCE Vs Vira Enterprises (Dated: September 1, 2016)

CX - Notification no. 76/1986-CE - whether readymade garments are handicraftsentitled for exemption from CE duty.

Held: Circular 773/6/CX dated 28 th January 2004 does permit some tolerance to theuse of machinery in the production of 'handicrafts' - There is a total absence of findingin the order of the original authority that the goods are not 'handicrafts' - in view ofthe apex court decision in Louis Shoppe - 2002-TIOL-126-SC-CX and the BoardCircular (supra), impugned order is set aside and appeal of assessee is allowed -Revenue appeal is dismissed: CESTAT [para 4, 5]


Prestige Metal System India Pvt Ltd Vs CCE (Dated: January 5, 2017)

CX - Benefit of SSI exemption 9/2003-CE denied to the appellant for the period April2003 to July 2003 on the ground that the option claiming the benefit of the notificationwas filed by appellant on 24.07.2003 - appeal to CESTAT - none appeared for appellant- AR submitting that it is a settled law that for availing any exemption notification,condition ought to be scrupulously followed and since appellant did not file optionletter, benefit rightly denied for impugned period.

Held: For availing benefit of an exemption notification, there are two types ofconditions to be followed, one is a substantive and second is procedural; substantivecondition is such that by not following the same, there are chances of misuse whereasby not following the procedural conditions, there is no chance of misuse - in thepresent case, option letter is only an intimation to the department and no furtheraction either from the appellant or department is required, therefore, same isprocedural - for this reason, SSI exemption under notfn. 9/2003-CE cannot be denied -impugned order set aside and appeal allowed: CESTAT [para 4]


Mahindra And Mahindra Ltd Vs CCE (Dated: January 4, 2017)

CX – Remission of duty – Rule 21 of CER – Commissioner rejected remissionapplication on the ground that said claim could only be made before removal of goodsas scrap and not after that – appeal to CESTAT.

Held: Remission of duty cannot be granted without actual ascertainment of thedamage and verification to the satisfaction of the Revenue – destruction and disposalof goods without verification/inspection cannot be condoned – Appeal is, therefore,dismissed: CESTAT [para 4, 5, 6]


Rajendra Surana Vs CCE (Dated: September 27, 2016)

CX - Penalty - Under section 11 A(2) inasmuch the main noticee deposited the dutytogether with interest and 25% of penalty within a period of 30 days from the date ofissuance of show cause notice, the proceedings should be deemed as concluded - Sincethe provision is very clear that the proceedings in respect of all the noticees shall beclosed, there was no justification for imposition of penalties on the partners: CESTAT


Venkatabalaji Steel Rolling Mills Pvt Ltd Vs CC, CE & ST (Dated: October 26,2016)

Central Excise - Penalty - Proviso in Rule 8(3A) CER, 2002, which disallowed theutilization of credit for payment of duty during the period of default was held to beunconstitutional by precedents - Hence, imposition of penalty for contravention of theRule, is unjustified - Appeal allowed. [paras 2 , 3]


Trimex Sands Pvt Ltd Vs CCE (Dated: September 12, 2016)

Central Excise - CENVAT Credit - appellant is engaged in the activity of separatingvaluable mineral sands from ordinary sea sand, generating rutile concentrate, ilmeniteconcentrate, zircon concentrate/semi concentrate, garnet concentrate and silimaniteconcentrate - a major portion of their final products are being exported and thebalance is cleared in the domestic market - The Appellant availed CENVAT Credit of theduty paid on inputs, capital goods and input services, clearing their products to

domestic market upon payment of duty and for exports without payment of duty underLetter of Undertaking - The Department issued a show cause notice alleging that sincethere is no manufacture, there is no duty liability on the aforesaid minerals (finishedproducts) and hence the availment of CENVAT Credit and payment of duty on themineral by utilizing CENVAT Credit for domestic clearance and for export under claimfor rebate and subsequent sanction therefore appears to be erroneous - The showcause notice therefore proposed to treat CENVAT Credit availed during the materialperiod as irregular; and also proposed that CENVAT Credit lying in balance shouldlapse (not to be utilized at all) as the same pertains to the period during which theactivities undertaken by the appellant does not amount to manufacture - TheAdjudicating authority held that as the process does not amount to manufacture, thereis no duty liability on the final products i.e., mineral concentrates; that therefore creditis inadmissible, and confirmed the proposals in the SCN; culminating in the instantappeal.

Held: The process carried out by appellant of separating valuable mineral sands fromordinary sea sand, involves (i) Feed preparation stage, where oversize debris, shelland natural waste materials removed from the slurry made of raw sands and water;(ii) pre-concentration process, where spirals, clarifiers, wet- screen and hydro cyclonesare used for separation of heavy minerals from the gangue (feed preparation silicasand); and (iii) Mineral Separation Stage, where dried mineral concentrates are furtherprocessed to extract the product through electrostatic, magnetic and mechanicalprocess - As correctly analysed by the adjudicating authority at the end of this processthe chemical structure of the output remained the same; there was no crystallographictransformation and hence the process will not amount to manufacture - Identicalprocess carried out by Indian Rare Earths Ltd had been held as not involving anymanufacture - the dismissal by the Apex Court will have the effect of the earlierTribunal decision continuing to be in force - a subsequent Tribunal decision reiteratedthe very same view in the case of Kerala Minerals & Metals Ltd Vs CCE Kochi. [Para6.1, 6.2, 6.3, 6.4]


Modi Arc Electrode Company Vs CCE (Dated: August 11, 2016)

CX - Assessee is in appeal on the ground that in view of finding of Commissioner (A)that there is no malafide and/or contumacious conduct on the part of assessee -Accordingly, it is urged that extended period of limitation is also not available torevenue as the whole demand relate to period beyond one year from the date of SCNbeing 27.1.2009 - Extended period of limitation is not invokable in the facts andcircumstances of case - Accordingly, SCN is bad: CESTAT


Lubrizol India Pvt Ltd Vs CCE (Dated: December 30, 2016)

CX - CENVAT - Company's internal audit was conducted and on physical verification ofstock, out of total stock approx. 2500 MTs there was shortage of 6 MTs which wasrecorded in 3 CD report - Department has issued SCN proposing denial of Cenvat crediton the 6 MTs of input found short - demand confirmed by lower authorities, henceappeal to CESTAT. Held: Shortage of 6 MTs of intermediate input comes to 0.3% oftotal stock of 2500 MTs handled during the financial year - This shortage cannot betaken as actual shortage for the reason that nature of input is such that there arealways chances of evaporation and handling and process loss - It is not the case ofdepartment that such shortage has been cleared clandestinely, therefore, whateverinputs were received by the appellant are either inputs lying in stock or consumed inthe production and there is no disposal otherwise of this shortage - it is a settled lawthat in case of minor variations in stock and in view of the fact that there is noevidence of removal of such inputs from factory, CENVAT credit cannot be disallowed -impugned order set aside and appeal is allowed: CESTAT [para 5]


Marpol Pvt Ltd Vs CCE (Dated: January 5, 2017)

CX – Valuation – Section 4 of the CEA, 1944 - Issue is whether the excess insuranceamount towards transit insurance of the excisable goods collected by the appellantfrom their buyer is includible in the assessable value or otherwise. Held: Since theexcess amount collected by the appellant is towards insurance premium, the same isnot part and parcel of the sale of the goods and is, therefore, not includible in AV inview of the apex court decision in Baroda Electric Meters Ltd. - 2002-TIOL-96-SC-CX –Impugned order set aside and appeal allowed: CESTAT [para 5]


Rasandik Engineering Industries Ltd Vs CCE (Dated: February 6, 2017)

CX – Issue is whether appellants are right in transferring the portion of their creditavailable in Pune factory to other two factories, all three being part of single pointregistration under LTU, New Delhi - denial of credit is only on the ground that suchtransfer was done before formal addition of Pune Unit in the revised registration –appeal to CESTAT. Held: It is clear from the overall scheme mentioned in the Circular834/11/2006-CX dated 05.10.2006 that upon enrolling as an assessee in LTU, all theunits of the assessee will fall under Jurisdiction of LTU - Non-mentioning of Pune Unitin the original consent letter is due to the fact that at that time the unit was not inexistence – Later, the same was added, intimation was given to the officers of LTU andthe credit was transferred, thereafter only - no reason to deny the transfer of suchcredit which is otherwise legitimately available to the appellant - Such objections bythe Revenue is purely based on hyper technical approach and a beneficial procedurecannot be denied on such a narrow compass - there is no violation of any provisions orany serious threat to the Revenue of the Government in such transfer which involvesprocedure available to the units enrolled in LTU - no merit in the impugned orders,therefore, same is set aside and appeals are allowed: CESTAT [para 5, 6]


Nitin Spinners Ltd Vs CCE (Dated: December 22, 2016)

CX - Assessee engaged in manufacture of cotton yarns and knitted fabrics of cottonand operating as a 100% EOU, availing credit on inputs and input services till it gotitself de-bonded on 16.5.2008 - On the date of de-bonding, assessee has reversed theduty payable on capital goods, inputs and inputs contained in work in progress -However, the credit availed on input services was not reversed - There is no provisionfor reversal of Cenvat credit availed on input services at the time of debonding,inasmuch as input services stand consumed, as soon as it was received - Demand forreversal on input services is without justification: CESTAT


Nirmal Inductomelt Pvt Ltd Vs CCE (Dated: January 27, 2017)

CX - Allegation of clandestine manufacture of M.S.Ingots and removal of the samewithout payment of duty - demand confirmed of Rs.2,65,80,272/- with interest andpenalty on company as well as Director - appeal to CESTAT. Held: Law is well settledthat in case of allegation of clandestine removal, the onus entirely lies on the Revenueto prove with the help of positive and complete evidence that the goods were in factremoved clandestinely by the assessee - Department has not brought any iota ofevidence of receipt and utilization of excess raw-material in the clandestinemanufacture of finished goods, manufacture of finished goods with reference toinstalled capacity, labour employed and payment made to them, clandestine removalof M.S. Ingots with reference to the vehicle for transportation of such goods, statementof lorry drivers, amount received from the buyers and their statement regardingreceipt of M.S. Ingots without proper and valid invoices - it is a settled principle of lawthat clandestine manufacture and removal of excisable goods is to be proved by

tangible, direct, affirmative and incontrovertible evidence, which in the present casehas not been provided or referred to by the Department - demand and penalty notsustainable - impugned order set aside and appeal allowed: CESTAT [para 7, 8]


Sai Polymers Vs CCE (Dated: September 27, 2016)

Central Excise – Refund Claim – Refund of credit denied on the ground that suppliesmade to 100% EOU are only deemed exports and cannot be considered as actualphysical exports – Precedents have held that deemed exports made by EOU to anotherEOU and goods cleared by DTA to 100% EOU has to be treated as physical exports anddenial of refund of credit on the ground is not legal – Hence, appellant is eligible forrefund – Appeal allowed. [paras 2, 3]


Venkata Sai Ispat Industries Pvt Ltd Vs CC, CE & ST (Dated: December 20,2016)

Central Excise - CENVAT Credit - appellant engaged in manufacture of Sponge Iron,availing CENVAT credit on various inputs, input services and capital goods - in order toset up Sponge Iron plant, they procured various equipments such as rotary kiln,Program Logic Controller (PLC), Refractory Materials, Vibrating Screen, Motors, Belts,Rollers, Carrying Idlers, Weigh Feeders, Dust Collectors, Electrostatic Precipitators andvarious other electrical equipments and also fabricated certain parts, components andaccessories required for the manufacture of capital goods - They also procured HRPlates, MS Plates, HR Coils, HR Sheets, Angles, Bars, etc., availed credit; and used thesame in fabrication of parts, components and accessories of various capital goods suchas Kiln, and its equipments, Conveyor System, Pollution Control Equipment, Bunkersetc. - The department viewed that credit is not admissible on MS Plates, Angles, Bars,HR Plates, etc., denied it in adjudication, and confirmed demand for its recovery withinterest and penalty - vide the order impugned herein, the Commissioner(Appeals)allowed a part of the credit; and the disallowed credit is agitated herein.

Held:In the reply to Show Cause Notice appellants have explained the usage of the MSitems for fabrication of capital goods; and also disclosed the availment of credit in ER-1returns - the JRO reported that the MS items were not used for construction/layingfoundation although the same is alleged in the SCN - the chartered engineercertificate, at Sl. No. 33, stated that credit availed on MS items used for supportingstructures for Kiln equipments, Conveyor System, Pollution control equipments, withphotographs to explain the nature of the supporting structures - appellants have notavailed credit on MS items used for civil construction/foundations; credit availed islimited only on the MS items used for fabricating capital goods and the supportingstructures of the capital goods - clear that without the supporting structures, the Kiln,Conveyor, Pollution Control equipments cannot be erected and cannot be put intofunction - The issue has been analysed in the case of India Cement Ltd., wherein theChennai High Court relied upon the Apex Court ruling in the case of CCE Vs. RajasthanSpinning Mills Ltd., and held the credit on MS items used for fabricating supportstructure of machinery and equipment is eligible inasmuch as the MS Angles, MSBeams, etc., used in erection of machinery become component of the same and thesebecome integral part of the machinery - the denial of credit in the instant case isunjustified; the impugned orders to the extent of disallowing the credit is set aside.[Para 5]


Vidyut Metallics Pvt Ltd Vs CCE & ST (Dated: January 6, 2017)

CX - CENVAT - Credit denied on ‘hanging cards' used for packing of shaving blades onthe ground that the value of hanging cards is not included in the AV of the safety razorblades manufactured; order also discards the CA certificate certifying that cost of such

hanging cards was included in AV - appeal before CESTAT. Held: Identical issue hasbeen decided by Tribunal in the case of Harbans Lal Malhotra & Sons Ltd. [ Order No.-A/1277/KOL/2001 dated 28 November 2001] allowing credit and which is upheld byCalcutta High Court - following the same, appeal is allowed: CESTAT [para 4]


PD Industries Pvt Ltd Vs CCE (Dated: November 17, 2016)

CX - Demand confirmed alongwith interest and penalty - Assessee admits the shortageof sponge iron in form of admission statement given by General Manager(Commercial); incriminating records/documents were also recovered from factory ofassessee, which corroborate the fact of clandestine removal of subject goods foundshort during physical verification - There is no evidence produced by assessee tocounter the same - Therefore, there is no scope to interfere with impugned order.

In case of other part of demand against suppressed production and clandestineremoval of sponge iron, there are sufficient evidences available in form of loosepapers, log sheets, outgoing and incoming goods details and statement of GM(Commercial) - Assessee also deposited the major part of this demand which wasappropriated by impugned order - Assessee's appeal is hereby dismissed as withoutmerits: CESTAT


Nanglamal Sugar Complex Vs CCE & ST (Dated: February 9, 2017)

CX - CCE held that only denatured Ethyl alcohol is covered under CETH 2207 2000;that exemption under Notification 3/2005-CE is applicable only to excisable goodsnamely, denatured Ethyl alcohol and not to non-excisable goods (Ethyl alcohol); thatas the goods are not mentioned in tariff, the same should be considered as non-excisable goods and, therefore, the appellant is not covered by the Cenvat CreditScheme in respect of such production of non-excisable goods; that payment of 5% ofthe value of exempted goods in terms of rule 6(3) of CCR, 2004 is not proper and,therefore, CENVAT credit amounting to Rs.1,11,39,987/- denied along with impositionof Penalties – appeal to CESTAT. Held: Reliance by original authority on thecomparison with HSN is misplaced - finding that the entry 2207.20 does not coverundenatured ethyl alcohol having strength at 80% and above and hence the same isnon-excisable, is not legally and factually sustainable - Ethyl alcohol/ rectified spiritwhich is not for human consumption is finding place in tariff item 2207 2000 as held bythe Tribunal in Bajaj Hindustan Sugar Ltd. - 2016-TIOL-2063-CESTAT-ALL -considering all the relevant facts, like tariff entries prior to and post 01.03.2005, theclarification 808/05/2005-CX dated 25.02.2005 issued by the Board and the variousfindings as recorded by the Tribunal, it is clear that the impugned order holding ethylalcohol as non excisable product is not legally sustainable – impugned order set asideand appeal allowed: CESTAT [para 6 to 10]


CCE Vs Neoli Sugar Factory (Dated: October 7, 2016)

CX - Revenue is in appeal against Order of Commissioner (A), whereby Cenvat Credithave been allowed as rightly taken on items like angles, Rods, Bars, Channels and M.S.Plates which have been used in manufacture of capital goods - Ground of Revenueraising the doubt as to utilisation of inputs in question, amounts to travelling beyondthe scope of SCN - It is evident that there was no dispute about the facts and issue iswholly interpretational - Thus, no merits found in appeal of Revenue and same isaccordingly dismissed: CESTAT


CC, CE & ST Vs Sri Chakra Cements Ltd (Dated: September 14, 2016)

Central Excise – Exemption / Concession - respondents are engaged in manufacturingand clearing ordinary Portland cement and clinker - It appeared to department that therespondent has been irregularly availing exemption Notification No. 06/2002-CE dated01.03.2002 and thus short paid duty - A show cause notice was issued, inter aliaproposing denial of concessional rate of duty in respect of cement during the materialperiod, demand of allegedly short paid duty liability with interest thereon andimposition of penalties – The proposals were dropped in adjudication, and are agitatedby Revenue herein.

Held: The main grounds for initiation of proceedings in this case emanate from theview of the department that respondent violated the conditions of Notification No.6/20002-CE, firstly by enhancing installed capacity to 950 TPD and secondly used thebrand name of others viz- Modern Plastic Corporation, Kiranmayee Cements andGanesh Industries – These very allegations were addressed by the adjudicatingauthority, who recorded a reasoned conclusion – No infirmity in the impugned order,and no merit in the departmental appeal. [Para 5, 7]


CC, CE & ST Vs Sree Godavari Kraft Papers Ltd (Dated: October 27, 2016)

Central Excise - CENVAT Credit - Irregularly availed credit on inward transportation ofinputs/capital goods used in manufacture of exempted goods, was reversed byassessee prior to utilization and even prior to issuance of SCN - Hence, Commissioner(A) had rightly set aside the demand of interest and penalty - Moreover, since the factof availment of credit was reflected in ER-1 returns, no suppression of facts can bealleged against assessee with intent to evade tax - No infirmity in impugned order -Hence, revenue's appeal is dismissed . [paras 2, 4]


Grant Thornton Vs CCE (Dated: January 4, 2017)

ST - Assessee is registered with ST department and ST under category of managementconsultant - Revenue views that ST is payable on amount claimed to be out of pocketexpenses incurred by assessee and reimbursed by service recipient - ST is liable onlyon value of consideration received for providing services - Out of pocket expenseswhich are in nature of conveyance, travel and mobile expenses cannot be included forpurpose of levy of ST - Assessee had submitted the copy of some of such billsevidencing out of pocket expenses - Matter remanded: CESTAT


CCE & ST Vs MP Tar Products (Dated: October 28, 2016)

Central Excise - Exemption - The issue involved in the present appeal is the eligibilityof the respondent for exemption under Notification No.6/06-CE dated 1.3.2006 inrespect of goods supplied to Mega Power Projects, available at Sl.91 B of thenotification when the goods are supplied to the Mega Power Project in response toInternational Competitive Bidding - Under Condition No.28(a) of the notification, theexemption is available if such goods are exempted from customs duty when importedinto India - The respondent supplied dutiable goods classifiable under CETH 68071090and the imported goods are covered by Notification No.21/2002-Cus dated 1.3.2002(Sl.No.400) - The exemption under notification in respect of the goods supplied toMega Power Projects is under classification heading 9801 - The exemption (CE) wasdenied in adjudication on the ground that the classification under notification does notcover the impugned goods supplied by the respondent - Commissioner (Appeals) setaside the OIO, now agitated by Revenue herein.

Held: The reasons and findings recorded in the impugned order cannot be faulted -

There are various decisions of this Tribunal dealing with similar set of facts, whereinthe exemption claimed was allowed, particularly in Paramount Communication Ltd. Vs.CCE, Jaipur-I, KEI Industries Ltd and Cords Cable Industries Pvt. Ltd. - Following theratio in the settled cases, no reasons to interfere with the findings in the impugnedorder [Para 4, 5]


Trichem Enterprises Pvt Ltd Vs CCE & ST (Dated: December 28, 2016)

CX - Whether assessee is eligible to CENVAT Credit on inputs, value of which wasshown to have been written off in their books of account as other income - Tribunal donot find any basis for denying CENVAT Credit once the quantity of inputs received infactory against those invoices and had been used in or in relation to the manufactureof final product cleared on payment of duty - Impugned order is set aside and appealallowed: CESTAT


CCE Vs Spark Electrodes Pvt Ltd (Dated: December 1, 2016)

CX - Penalty - Assessee is engaged in galvanization/manufacture of G I Pipes & Tubesincluding purchase of black pipes and, thereafter, galvanize the same - Goods wereproperly found to be recorded in RG-I register, which is a statutory record, no case ofclandestine removal is made out against the company & its Director - Revenue havenot found cogent explanation given as untrue, at the time of inspection - Sincedetermination of duty was not involved as it is admitted fact that duty had been paidon date of inspection, issuance of SCN is void ab initio: CESTAT


TEJ Shoe Tech Vs CCE (Dated: January 21, 2017)

Central Excise - Remission of duty - Remission rejected by the Commissioner on theground that the accident is not unavoidable - Held: The Commissioner erred in holdingthat the fire accident was avoidable and was due to negligence and carelessness on thepart of the appellant. In view of the categorical finding of Chief Fire Fighting Officer, itis an unambiguous conclusion that the fire started in the adjoining factory andthereafter spread to the adjoining factory of Golden Eagle Shoe and from theirpursuant to caving in of the roof the fire spread to the appellant's factory andimmediately engulfed the whole factory. The appellant had given timely notice to theExcise Authorities and hence, no case of negligence is made out against him whichcould have prevented the Excise Authorities in verifying the accident and/or loss.Rejection of quantum of loss is also erroneous and no reasons have been given for thesame. In case of fire where everything is lost, the loss is to be estimated on the basisof some parameters and on past records. Accordingly, the impugned order is set asideand the appeal is allowed - The appellant is held to be entitled to remission claim, asmade before the Commissioner along with the consequential benefits, if any. (para 8)


Navdurga Ispat Pvt Ltd Vs CCE & ST (Dated: January 18, 2017)

CX - Assessee was to deposit 75% of ST as per Notfn 30/2012-ST - They had reversed75% of CENVAT Credit which they had taken initially against provisions of said Notfn -However, assessee has not made the payment of interest on demand confirmed so far- When assessee has not paid the interest part of demand confirmed by lower revenueauthorities, there is no merit in this appeal for setting aside the penalties imposed bylower revenue authorities: CESTAT


R K Silk Mills India Ltd Vs CCE (Dated: October 6, 2016)

Central Excise – Manufacture of cotton fabric – Non-entry in RG-1 register –Confiscation – Validity – Absent evidence to substantiate that seized goods in questionare meant for government supply for which DGS&D inspection has to be carried outnor was such a plea raised in the appeal memo, confiscation upheld.

It is clear from the Commissioner order that confiscation of the excess found goods hasbeen upheld on the ground that same were neither entered in form IV register or lotregister or RG I register. Though the appellants have argued that goods were yet to beentered in RG I register as the same were still to be inspected by the DGS&Ddepartment, but surprisingly even in their memo of appeal, there is no groundreference to non-entry of goods in form IV register/lot registers. As such, it cannot besaid to be a mere case of non-entry in RG I register. Admittedly, on receipt of rawmaterials i.e, grey fabrics, the same are required to be entered in the raw materialsregister as also the lot register. Non entry of the same in the statutory documentswould admittedly lead to appellant's malafide that same were meant for clandestineclearance. As such, no justifiable reason to interfere in the impugned order of thelower authorities. Accordingly, the appeal is dismissed. (Para 4)


Shillong Ispat And Rolling Mills Vs CCE & ST (Dated: August 12, 2016)

CX - It was alleged that assessee has suppressed production of dutiable goods and hasremoved the same clandestinely without payment of duty - They were claiming area-based exemption vide Notfn. 32/99 - No corroborative evidence were provided byrevenue to prove clandestine removal - No proper stock taking was done & noevidence given showing the manufacture of goods and their clearances withoutpayment of duty - Burden of proving clandestine removal is on the revenue and cannotbe discharged based on conjectures and assumptions - Assessee can avail cash refundunder exemption, thus no reason for indulging in clandestine removal: CESTAT (Para4, 4.4)


Harsco India Services Pvt Ltd Vs CC, CE & ST (Dated: September 19, 2016)

Central Excise - Refund claim - Definition of input services u/r. 2(l) of CCR hasundergone a drastic change w.e.f 1.4.2011, however the inclusive portion still includesrecruitment, coaching and training, inward transportation of inputs/capital goods,outward transportation upto the place of removal - Hence, input services of Manpowerrecruitment and Commercial training & Coaching fall under inclusive portion of thedefinition of input services - Courier service and C & F agency services are held to beeligible for credit by various precedents - Board vide letter DOF. No. 334/1/2012-TRUdt. 16.3.2012, has clarified that the new scheme of refund does not require thecorrelation between exports and input services used in such exports - Hence, rejectionof refund claim to 100% EOU on the grounds that impugned input services have nonexus with output service and that there is no one to one correlation with the exportsand the input services, is not sustainable - Hence, appeal allowed. [paras 1, 2, 4, 7, 8]


Poonam Perfect Vs CCE (Dated: February 1, 2017)

CX – SSI notfn. 8/2001-CE – Clause 4 of notification - Brand name - Intent to takeadvantage of the recognition enjoyed by another brand is critical to invoking of theexception provision - Such intent can be established by facts unearthed oninvestigation - Failure to carry out such investigation to establish such intent cannot besupplemented and complemented by adjudication orders, let alone appellateproceedings - The notice issued to appellants has not ventured to bring such intent tolight - No attempt has been made to even portray any advantage that the appellantsderived from using these particular brands - That the owner of the brands has any

market presence at all is not evinced from the records - reference to the Trade Marksand Merchandising Rules, 1999 is not articulated in the exemption notification - use ofthe brands by appellants cannot be considered to have intended to communicate aconnection in the course of trade with the person who purportedly owns the brandname – impugned order set aside and appeals allowed: CESTAT [para 7, 8, 9, 11, 13,14]



CCE & ST Vs Western Tobacco Ltd (Dated: January 13, 2017)

CX - Assessee engaged in manufacture of Cigarettes and a part of goodsmanufactured, was also exported to foreign buyers - Consignments of Cigarettes havebeen cleared from assessee's factory on the basis of bond executed by two merchantexporters - Where merchant exporters have failed to produce genuine proof of export,liability to pay excise duty is required to be fastened on merchant exporters - It hasemerged that merchant exporters were found to be non-existent at the addressessubmitted by them to the department - In absence of valid bond from merchantexporters, liability for payment of duty reverses back to original manufacturer who isassessee - Demand of duty amounting to Rs. 1,20,47,600/- upheld on assessee -Further, assessee will also be liable for payment of appropriate interest on duty as wellas liable for penalty of equal amount under section 11AC of CEA, 1944: CESTAT


Paramount Communication Ltd Vs CCE (Dated: December 22, 2016)

CX - Assessee engaged in manufacture of insulated wire and cables - They suppliedinstrumental cables to Mega Thermal Power plant being set up by M/s. NTPC and M/s.Jindal Power Ltd. and claimed the benefit of exemption Notfn 6/2006 CE - By followingdecision of Tribunal in the case of Paramount Communication Ltd. it is held thatassessee are eligible for exemption under said Notfn: CESTAT


Rasthriya Ispat Nigam Ltd Vs CCE, C & ST (Dated: September 27, 2016)

Central Excise - CENVAT Credit - Credit is admissible on crane rails, materials used inrailway tracks used for movement of goods in the factory and though the initial claim isunder inputs, credit cannot be denied under capital goods.

Credit availed on crane rails, materials used in railway tracks as inputs denied on theground that they do not fall under the definition of inputs - Revenue contends thatthough the appellant had initially claimed credit under inputs, now they are claimingeligibility under capital good - Precedents have held that iron and steel products, usedfor structural support, by application of user test, become component of machineriesand credit cannot be denied stating that they are not covered by the definition ofcapital goods; that though the initial claim is under inputs, assessee cannot be deniedcredit eligible under capital goods, so appellant's claim under capital goods put forwardin SCN yields merit - Moreover, precedents held that credit is admissible on rails usedwithin factory and for rails used in EOT cranes - Hence, appeal allowed. [paras 2, 3, 5,6, 7]


Sahil Textiles Vs CCE & ST (Dated: December 6, 2016)

CX - Assessee had leased their factory premises to one M/s Revawala Exports, an100% EOU - Recovery notice was issued to assessee along with M/s Revawala Exportsfor recovery of the outstanding dues under Section 142(1)(c)(ii) of Customs Act, 1962

- Since lessee M/s Revawala Exports has left their premises before completion ofexport obligations and expiry of lease period of six years, recovery cannot be madefrom the lessor by attachment of the property - Impugned order ser aside: CESTAT


CCE, C & ST Vs Shaily Engineering Plastics Ltd (Dated: November 28, 2016)

CX - Refund - Commissioner (A) interpreting Notfn 5/2006-CE(NT) , issued under Rule5 of CCR, 2004 and also following the judgement of Tribunal in Capiq Engineering Pvt.Ltd. 2008-TIOL-1967-CESTAT-AHM , observed that there is no one to one co-relationrequired for utilisation of inputs/input services used in or in relation to manufacture offinal product, ultimately exported so as to allowe cash refund under Rule 5 of Rules,2004 - No discrepancy found in the reasoning adopted by Commissioner (A): CESTAT


Simbhaoli Sugars Ltd Vs CCE (Dated: February 12, 2016)

CX - Whether assessee manufacturer of sugar and molasses have rightly availedCenvat credit during the period August, 2006 to December, 2006 onPlates/Coils/Shape and Section/M.S. Angles/M.S. Round and Flat/M.S. Channels bytreating these goods as inputs - Assessee is entitled to Cenvat credit on the items ofiron and steel in question if the same have been used for fabrication of capital goods,for repair and maintenance of capital goods, for fabrication of staging structures andsupporting structures, as no excisable products can be manufactured without the same- Amended definition of inputs under Cenvat Credit Rules provides for availability ofCenvat credit to a manufacturer on all items utilised by manufacturer in factory ofproduction - Appeal allowed by way of remand: CESTAT


CCE & ST Vs Nabros Pharma Pvt Ltd (Dated: August 17, 2016)

CX – Assessee, at their Kajipura unit, manufactured EPL substance (bulk drugs) andcleared the same during the period August 2000 to 17.02.2006 to their another unit atKheda, without payment of duty and without maintaining any records of manufactureand clearance of the said product; also at the Kheda Unit no records was maintained ofreceipt and disposal of the same - Consequently, on being pointed out by theDepartment, they paid Central Excise duty of Rs.12,38,318/- on 24.02.2006 debitingtheir CENVAT account and also paid interest of Rs.3,83,997/- through TR-6 challan –SCN issued and amount paid appropriated along with imposition of equal penalty –Commissioner(A) reduced demand by Rs.1,34,800/- on ground of limitation andextended benefit of discharging penalty of 25% - both, assessee and Revenue inappeal against this order. Held: Commissioner(A) has rightly confirmed the demand- As violation continued for a considerable length of time, plea of bonafide belief is notsustainable - assessee appeal rejected – reduction of penalty by Commissioner(A) isproper and legal, hence Revenue appeal is also rejected: CESTAT [para 6]

CX – CENVAT - Denial of CENVAT Credit to their Kheda unit on supplementary invoicesissued after payment of the duty by their Kajipur unit, is unsustainable in law in viewof the decision of this Tribunal in the case of United Phosphorus Ltd Vs CCE Surat-II ,wherein it has been held that invocation of extended period of limitation against theunit who has paid differential duty and raised supplementary invoices cannot beground to deny the credit taken at other unit, who availed the CENVAT Credit on thestrength of supplementary invoices: CESTAT [para 6]


Premier Bars Pvt Ltd Vs CCE (Dated: December 22, 2016)

CX - Assessee engaged in manufacture of TMT bars - Assessee took Cenvat credit in

respect of certain steel items, vix. MS plates, coils and channels, treating the same asinputs, for manufacture/fabrication/installation of Cooling bend on which red hot rolledproduct from rolling mills moves for cooling - Department views that the steel items inquestion have been used for fabrication/manufacture and erection of supportingstructure for capital goods, which are ultimately fixed/embedded to the earth, andhence are not goods, as it becomes an immovable property - Majority of High Courtsand Supreme Court in case of Jawahar Mills has already settled the issue in favour ofthe assessee - Impugned order is set aside and appeal allowed: CESTAT


Ultra Tech Cement Ltd Vs CC, CE & ST (Dated: September 12, 2016)

Central Excise – CENVAT Credit – Credit cannot be denied on the ground that it wasavailed prior to registration of the company in view of the precedents – Credit availedon steel structurals , steel pipes, etc., used for fabricating silos and storage tanks isadmissible – Credit availed on technical documentation is admissible as the same hasbeen related to import of technical documents as dutiable goods and CVD paid thereofcannot be denied as credit – Other input services like soil investigation, rent-a-cab,crane rental charges, civil construction work for AAC plant, supply of structural steel,construction of pre-fabricated building, etc., fall under the ambit of eligible inputservices as availed prior to the amendment of the definition of ‘input services' on1.4.2011 – Appeal allowed. [paras 2, 5, 7]


Palsons Automotive Pvt Ltd Vs CCE (Dated: February 8, 2017)

CX - Merely because Autolite India Ltd. is a group company does not entitle theappellant to use its brand name and claim SSI benefit - Established brand name"Autopal" is registered in the name of M/s Autolite India Ltd., and it has been used bythe appellant only to avail the advantage of an established brand name in connectionwith sale of the goods manufactured by the appellant - benefit of SSI exemptionunavailable in view of apex court decision in Bhalla Enterprises - 2004-TIOL-90-SC-CX- Revenue does not have automatic knowledge of the fact that the brand name‘Autopal' does not belong to the appellant but belongs to another company -suppression of facts is evident - plea of bonafide belief does not survive - Impugnedorder upheld and appeal dismissed: CESTAT [para 6, 6.1, 6.3]



Sri Ram Engineers Vs CCE (Dated: October 7, 2016)

CX - Due to practical difficulties, manufacturing unit was shifted from its previous placeof manufacture to a new place - None of excisable goods manufactured in new locationhas gone without payment of duty - But without looking into such aspect, authority notonly has demanded duty from new location unit but also denied CENVAT credit inrespect of earlier location - Law does not require that the same assessee should sufferin both ways: CESTAT


Nirvip Dyes And Chemicals Pvt Ltd Vs CCE (Dated: December 19, 2016)

CX - Appellant engaged in conversion of duty paid dye powder into dye paste -department has confirmed CE duty demand on the ground that the activity is“manufacture” of a distinct product in terms of section 2(f) of CEA, 1944 - appeal toCESTAT. Held: In the appellants own case cited as - 2006-TIOL-1940-CESTAT-MUMand the Tribunal decision in Indian Dyes & Chemicals - 2005-TIOL-868-CESTAT-MUM ,it is held that activity of conversion of VAT dyes into VAT paste does not amount tomanufacture - in view of the settled position, issue is no longer res integra - impugned

order set aside and appeal allowed: CESTAT [para 4]


Pushparaj Vs CCE (Dated: August 22, 2016)

CX – Clandestine manufacture and clearance without payment of CE duty - SCN isbereft of any evidence of the connection that the appellant has with the manufacturerof grey fabric – impugned order and order of original authority merely reiterate theallegation of connection as a finding without any discussion of the ‘whys or wherefores'– moreover, penalties can be levied as a consequence of a finding that the impugnedgoods are held liable for confiscation – SCN does not contain such a proposal to rendersuch a finding of liability to confiscation – in the absence of such a finding, impositionof penalty is not legal and proper: CESTAT [para 4]

CX - Lack of authentication of opening stock in the computation of stock of yarn wasdescribed as a glaring defect in arriving at the conclusion that grey fabric had beenclandestinely removed. Held: Nowhere in the records any evidence is found to supportthese assumptions: CESTAT [para 5]

CX - It would be foolish of M/s Golden Silk Mills to contemplate clandestine removal ofgrey fabric which is liable to duty of 10% when duty on yarn was 24%; with suchexcess credit available, there is no reason for them to evade duty - The finding on dutyand interest is bereft of legality and logic – Impugned order is set aside and appealsallowed: CESTAT [para 6, 7]


Rama Spinners Pvt Ltd Vs CC & CE (Dated: September 8, 2016)

Central Excise – Demand – Appellant firm is a manufacturer of Cotton Yarn and yarn inthe form of Plain Reel Hanks Yarn (PRHY) by using the cotton yarn manufacturedwithin the factory - appellant was selling the goods mostly through one firm by nameM/s. Pramod Trading Company ('PTC'), whose Proprietor was Sri Pramod KumarAgarwal - PTC in turn sells the said goods to different parties through their agents andsometimes, the said parties in turn sell it to different consumers/traders - Onintelligence gathered that the assessee is indulging in evasion of duty by clearingcotton yarn (in the form of cones/cheese)in the guise of PRHY also clearing the saidcotton yarn without payment of duty, Central Excise authorities conductedsimultaneous search operations at the factory, registered office, dealers' agents,residential premises and other related premises of the assessee and recovered certainrecords/documents for further verification, and also detained/seized certain quantitiesof cotton yarn at different premises; obtained statements of various employees/agentsand customers of the assessee – based on investigations, a show cause notice wasissued, proposing duty demand along with interest and penalties on the firms andindividuals under Section 11 AC of the Act and Rules 173A / Rule25 of Central ExciseRules, 2001 and 2002 – The notice was adjudicated in the impugned order,culminating in the instant appeal.

Held: The edifice of the entire case booked by the department rests on the statementsobtained from various persons and private records (private diaries) recovered from thealleged agent /broker of assessee and PTC Sri. D. Ravinder - Adjudicating authorityhas dropped proceedings in respect of two of the charges based on the sameevidence/statements /records/ documents relied upon by department - theadjudicating authority himself has taken note of the cross examination of theinvestigating officer who admitted that except for four parties, no statement fromother 102 parties were recorded - He has also found that department did not directinvestigation at manufacturers end whether the alleged quantities if cone yarn weremanufactured or not, and if manufactured whether it was sold as such or converted itinto PHRY - he has concluded that no conclusive evidence is brought forth bydepartment to substantiate the allegation - when the adjudicating authority hasdropped two demands on the grounds of insufficient evidence, the very same

conclusions will necessarily hold good for other allegations - in cases allegingclandestine manufacture and clearance, the department is required to prove its casewith tangible and cogent evidence - Merely basing all the allegations on statements,that too of miniscule number of buyers /consumers (4 out of 102), is certainly notcorroborative evidence, particularly when many of the persons who had givenstatements had back tracked in cross examination - There has also been no proofadduced to substantiate actual excess manufacture in the factory of assessee, or forthat matter excess procurement of raw materials - while adjudicating authority hascorrectly dropped the demands in respect of two issues, the remaining impugneddemands confirmed in the order and challenged in this appeal are not sustainable andrequire to be set aside - in the result, the penalties imposed on the firms andindividuals are also set aside. [Para 7, 8, 9, 11]


CC & CE Vs APEPDCL (Dated: September 15, 2016)

Central Excise - Classification - the respondents had filed classification list as requiredunder Rule 173B of erstwhile Central Excise Rules, 1944 for approval wherein theydeclared the goods as non-excisable goods - During the course of processing of thesaid list, the Assistant Commissioner viewed that the declared goods were in thenature of manufactured goods of iron and steel falling under Tariff Entry No.7308.90attracting duty of 15% - a show cause notice was issued proposing to classify theimpugned goods under chapter heading 7308.90 and to demand duty thereon; and thedemands were confirmed in adjudication - The matter reached the Tribunal, whoremanded the case to the original authority, observing that the burden of proving thatthe impugned items were excisable and classifiable under sub-heading No.7308.90 wasinitially on the revenue - The notice proposals were dropped in denovo adjudication;Commissioner (Appeals) upheld the denovo order, now agitated by Revenue herein.

Held: The fabrication process discussed in the OIO indicates cutting, drilling etc. - TheTribunal in various decisions has held that activities like drilling, cutting, punching,bending, welding do not lead to the emergence of a new article and therefore wouldnot constitute manufacture for the purpose of Central Excise Act, 1944 - However, theApex Court has set aside the decision of Tribunal in Karanataka Electricity Board caseand remanded the matter in view of the judgment of Constitution Bench in the case ofCCE, Aurangabad V M/s Benzo Chem Inds. P. Ltd. - The case laws relied upon by thedepartment, in particular the Kerala High Court judgment in Electrical & HardwareIndustries case are squarely applicable to the issue in hand - following the law laiddown by Apex Court and other appellate forums, the demand is sustainable, and theimpugned order is set aside. [Para 6, 7]


Ultra Tech Cements Ltd Vs CCE, C & ST (Dated: September 12, 2016)

Central Excise - CENVAT Credit - appellants are engaged in manufacturing cement andare availing CENVAT Credit on inputs and capital goods - They were issued ShowCause Notice alleging irregular availment of credit on MS beams, angles, channels etc.,- the adjudicating authority relying upon the Larger bench decision in the VandanaGlobal case, held that the appellant is not eligible for credit and confirmed the demand,interest and penalty; culminating in the instant appeal.

Held: The major part of the credit falls prior to 07.07.2009 and the department hasrelied upon the decision laid in M/s Vandana Global Ltd., case to hold that the credit isnot eligible - the subject items are used for fabrication of support structures conveyersystem, hoppers, silos, railway sidings etc. - It is not disputed that without thesesupport structures and such other capital goods fabricated using the MS items, theprocess of manufacture cannot be carried out effectively by the appellant - onintroduction of explanation in the definition of inputs after 07.07.2009 the restriction isonly when the MS items are used for construction of shed, laying of foundation etc. -Major thrust by the department is on the decision laid by Larger Bench of Tribunal in

the case of M/s Vandana Global Ltd., which has been held as not good law in the IndiaCements case, as the Vandana Global ruling was pronounced before the Apex Courtruling in the Rajasthan Spinning & Weaving Mills case [Para 5]

Credit was denied on the ground that the invoices are in the name of L & TConstructions who where the contractors for the execution of the work - as thedocuments contains the address as well as registration number of the appellant andthere is no dispute with regard to duty paid, it is not sufficient ground to deny thecredit, particularly when L & T has also issued a certificate to appellant stating that L &T has not availed credit on these items - In terms of the Tribunal ruling in the UltraTech Cements case, since the appellants have filed ER-1 returns regularly theextended period is not invokable as the issue is a contentious one - the disallowance ofcredit is unjustified and the impugned order is set aside [Para 6]


Ghodawat Foods International Pvt Ltd Vs CCE (Dated: January 30, 2017)

CX - Manufacture - Section 2(f) of CEA, 1944 - Chapter note 4 to Chapter 15 of CETA,1985 - Tanker is not a bulk pack, therefore, activity of unloading the edible oil andconverting into retail pack and labeling is not manufacture - one limb of the chapternote is not satisfied - impugned order set aside and appeals allowed: CESTAT [para 4,5]



Amararaja Power Systems LTD Vs CCE (Dated: September 12, 2016)

Central Excise - Assessable Value - Transportation charges - Arrangement oftransportation by appellant is only for convenience of customer-Railways andrequirement under Railways tender and Railways reimburses the charges; Railwaysinspects the goods at factory and only then they can be dispatched from factory andthere is no further inspection at the time of delivery, so the sale is at factory gate andas such freight and transit insurance charges are not includable in assessable value.

Appellant-manufacturer of batteries supplies them to customer-railways - Based onpurchase orders, Revenue took view that the sale is FOR destination based atcustomer's premises and demanded duty on transportation and transit insurancecharges - From the perusal of sample letter of advance acceptance and description ofcontracted supply, it is seen that while appellant does have to arrange fortransportation of goods to the stores of Railways, costs thereof are reimbursed byRailways - Arrangement of transportation by appellant is only for convenience ofRailways and a requirement under Railways tender - Moreover, from sample inspectioncertificate, it is clear that only after inspection of the goods by Railways at factory, thegoods can be dispatched and no further inspection is done at the time of delivery -Hence, it cannot be said that sale is at place of delivery - Since place of removal isfactory gate, in view of the precedents, freight and transit insurance charges are notincludable in assessable value - Demand set aside - Appeal allowed. [paras 1, 5, 6, 7,8, 9]



Om Knitwear Vs CCE (Dated: November 25, 2016)

CX - Appellants are admitting duty liability on the garments got manufactured on jobwork basis but are disputing the quantification of duty liability - Appellants are seekingre-calculation of duty based on the documents recovered by the officers during

investigation and this is a reasonable plea – order set aside and matter remanded tothe original authority – appeal allowed by way of remand: CESTAT [para 6, 7]


New Empire Textile Processors Pvt Ltd Vs CCE (Dated: December 2, 2016)

CX - Refund claimed u/r 5 of CCR in respect of accumulated CENVAT credit denied onthe ground that the appellant have not justified as to why the accumulated credit wasnot utilized for domestic clearances - appeal to CESTAT. Held: From the plain readingof Rule 5 of CCR, it is provided that for any reason adjustment of the credit is notpossible, the refund shall be granted to the asessee against the export of the goodstherefore Commissioner (Appeals) had no jurisdiction to question the appellant thatwhy credit could not be utilized for clearance of the goods for home consumption -Only condition is that if there is accumulated CENVAT credit in the CENVAT accountand goods have been exported, CENVAT credit attributed to the export of goods shouldbe refunded in terms of Rule 5 - impugned order is set aside and appeal allowed withconsequential relief - AA is directed to disposed the refund within a period of threemonths: CESTAT [para 5]


Northern India Steel Rolling Mills Vs CCE (Dated: August 29, 2016)

CX - It is second round of litigation - In earlier round of litigation, matter wasremanded back to adjudicating authority for de novo adjudication - There was nospecific direction to assessee to prove that they have received the goods - Statementsof assessee have not been controverted by any cogent evidence - If the statement oftransporter would have been recorded, the truth may come out to adjudicate the case- In absence of such crucial evidence, benefit of doubt goes in favour of assessee -Credit cannot be denied to manufacture/buyers - Consequently, no penalty isimposable on all the assessees: CESTAT


Pace Seating Systems Pvt Ltd Vs CCE, C & ST (Dated: August 3, 2016)

Central Excise - CENVAT Credit - Reversal of credit in respect of inputs used in goodssupplied to SEZ developer is not required under any law, even if separate accounts arenot maintained for dutiable and non-dutiable goods.It is settled that supplies to SEZdevelopers should be treated as exports u/r. 6(6) of CCR.

Demand raised for reversal of credit availed on inputs used in goods cleared/suppliedto SEZ developer u/r. 19 of Central Excise Rules under ARE-I without payment of duty,on the ground that appellant neither maintained separate accounts nor reversed 10%of the value of non-dutiable goods in contravention of Rule 6(2) of CCR - Variousdecisions of High Courts and Tribunal have held that 'amendment to Rule 6(6) of CCR,2004 to include SEZ developer w.e.f 31.12.2008 has retrospective effect from 2004onwards'; that 'supplies to SEZ developers should be treated as exports u/r. 6(6)' andso no reversal of credit in respect of inputs used in goods supplied to SEZ developer isrequired under any law' - Hence, appeal allowed. [paras 2, 3, 4]


Prem Khalsa Iron And Steel Rolling Mills Vs CCE (Dated: September 1, 2016)

CX - CENVAT credit on inputs has been denied to the appellant on the premise that thedealer M/s S.K. Garg & Sons who has supplied the goods to the appellant is non-existent and he has merely issued invoices but not the goods – appeal to CESTAT.Held: In the present case, no investigation is conducted at the end ofmanufacturer/supplier or the transporter to reveal the truth whethermanufacturer/supplier has supplied the goods in question to M/s S.K. Garg & Sons or

the transporter has transported the goods to the premises of the appellants which isvital evidence to reveal the truth - Further, M/s S.K. Garg & Sons was registered dealerduring the impugned period and all the ER-1 returns were filed by M/s S.K. Garg &Sons which were accepted by the department - Therefore, in the absence of anycorroborative evidence to show that the appellant have not received the goods, itcannot be alleged against the appellant that they have received the invoices and notthe goods merely on the ground that there was no storage facility, specifically whenthe landlord made a statement that the godown was let out to the dealer - in theabsence of any investigation at the end of manufacturer/supplier or the transporter,the CENVAT credit cannot be denied to the appellant – impugned order set aside andappeal allowed with consequential relief: CESTAT [para 6, 7]


Om Prakash Agarwal Vs CCE (Dated: October 26, 2016)

CX - Clandestine clearance - Allegation was that based on evidences collected fromsuppliers' side, unaccounted receipt and further manufacture of dutiable items byappellant was sought to be sustained - When such evidence was brought before thepartner of appellant's unit, he categorically admitted unaccounted clearance of dutiableitems - In such situation, it is strange that appellant has taken a plea that departmenthas not established the details of buyers and transport of finished goods to suchbuyers - Admittedly, none of private records or statements given have been retractedor later contested for their authenticity - In a clandestine manufacture and clearance,each stage of operation cannot be established with precision - Accordingly, appealsdismissed: CESTAT


Panna International Vs CCE (Dated: September 28, 2016)

Central Excise - SSI Unit - Manufacture of Zinc ingots - Clandestine clearances -Cannot be merely based on statements unless corroborated by other positiveevidences - Quantity calculated as manufactured is not believable as it is not possiblewith -the limited infrastructure at appellant's premises - Duty calculated anddemanded in SCN was also not in anyway correlated with the data obtained andmethod of calculation adopted - Investigation by Revenue was incomplete and itsfinding of clandestine removal is clearly based on assumptions and surmises - Sincethe appellant contested that the seized/confiscated goods is eligible to small scaleexemption matter is remanded to the Adjudicating Authority to adjudicate the issue denovo on merits - Impugned order set aside. (Para 4-8)


Rain Cements Ltd Vs CE, CC & ST (Dated: December 8, 2016)

Central Excise – CENVAT Credit - appellants are engaged in manufacturing cement,cement clinkers and are availing credit on inputs and capital goods - The appellantshad undertaken expansion of their factory and several work contracts and work offabrication, erection etc. were done pursuant - the Department observed thatappellants have taken CENVAT credit on MS items under the category of capital goodswhich was viewed as inadmissible - the original authority confirmed the demand ofirregularly availed credit along with interest and imposed equal amount of penalty -Commissioner(Appeals) upheld the disallowance of credit but set aside the penaltyimposed; now agitated by the appellant herein.

Held: The show-cause notice covers the period March 2007 to February 2008, and theinvoices pertain to the period prior to 07/07/2009 on which date the explanation wasintroduced to the definition of inputs which restricted the use of MS items – credit onitems utilized for pre-heater, staircase, coal mill building, platforms, silo, coal millplatform etc., admissible as the appellant is eligible for that part of the MS items whichwere used for fabrication and manufacture of capital goods / parts / components -

credit on MS items used for civil construction as well as temporary structures is noteligible and the same is disallowed - The appellant has reversed the entire credit evenbefore the issuance of the show-cause notice and also prior to the utilization – Nointerest liability as decided in the case of BEML Ltd. Vs. CCE,CC&CST, Bangalore andCCE, Bangalore-II Vs. Swastik Engineering. [Para 5]


Stanpacks India Pvt Ltd Vs CC, CE & ST (Dated: September 27, 2016)

Central Excise – CENVAT Credit – Cenvat credit of Education Cess and Secondary &Higher Education cess paid on inputs supplied by 100% EOU, paying duty under Sl. No.2 of Notification No. 23/2003-CE for the period 2007-08, is admissible in view of theprecedent orders – Appeal allowed. [paras 1, 2, 3, 4]


Tata Steel Processing And Distribution Ltd Vs CC, CE & ST (Dated: September22, 2016)

CX - It is alleged that assessee have irregularly availed credit on inputs under categoryof capital goods - Chapter 90 of CETA 1985 shows the entry of Surface Testing Benchat 90312000 - Therefore, said item falls within definition of capital goods and thereforedenial of credit is unjustified - Steel shots are used in shot blasting machines andtherefore are covered under category of capital goods - When Department has nodispute with regard to receipt of generator within the factory or with regard topayment of duty, denial of credit is unjustified - Disallowance of credit as perimpugned order is without basis: CESTAT


Tata Motors Ltd Vs CCE (Dated: August 1, 2016)

CX - So far as Cenvat Credit with respect to CS Spoon, Assembly, Canvass Canopy, itis observed that this Bench in assessee's own case held that credit on these itemsalong with refractories used for lining of furnace is admissible - On technical lapsesCenvat credit cannot be disallowed - Issues stand settled in favour of assessee:CESTAT


Rallison Electricals Pvt Ltd Vs CCE (Dated: March 22, 2016)

CX - Assessee engaged in manufacture of electrical copper wires & cables - Supply ofgoods to SEZ developer was considered by Department as exempted goods andconfirmed the demand against assessee - Issue arising out regarding retrospectiveapplication of Rule 6 - Amendment took place in Rule 6 (6) (i) in 2008 has to beconstrued as retrospective in nature and said statutory provision will be extended togoods cleared to a developer of SEZ for their authorised operations: CESTAT


Roca Bathroom Products Pvt Ltd Vs CCE (Dated: November 25, 2016)

CX - Assessee are manufacturer of bathroom fittings - Department views that inaddition to manufacturing, assessee were also engaged in trading activity and theseservices had also been used in connection with their trading activity - Assessee hastaken cenvat credit of input services pertaining to traded/stored goods - It is a matterof record that there are some input services which have been used for trading activity -When there is no evidence produced to establish nexus between input service andmanufacturing conducted by assessee, cenvat credit based on suchinvoices/bills/challans issued by ISD is not admissible - Appeal rejected as without

merit: CESTAT


Tinslay Bridge Abbros Spring (India) Pvt Ltd Vs CC & CE (Dated: January 6,2017)

CX - CENVAT - Department alleged that service tax paid in April 2007 in respect ofservice provided during the period prior to 10.09.2004 cannot be allowed in terms ofrule 3 of CCR - demand confirmed, hence appeal in CESTAT. Held: In the present casethe Cenvat Credit is not in respect of service tax paid during CCR, 2002 and lyingunutilized as on 10.09.2004 - Since the service tax was admittedly paid by the serviceprovider not before 10.09.2004 but in the month of April 2007, such amount wasneither earned prior to 10.09.2004 nor lying unutilized as on 10.09.2004, therefore,credit is not admissible even as per transitional provisions under Rule 11 of CCR, 2004- impugned order upheld and appeal dismissed: CESTAT [para 5]


CCE Vs Advani Orlikon Ltd (Dated: January 3, 2017)

CX - Classification - Whether Welding transformer is classifiable under CH 8468 asclaimed by respondent or under CH 8504 as claimed by revenue. Held: Chapterheading 8468 is meant for welding machine and there is a specific entry providedunder CH 8504 with regard to transformer - It is a settled law that when the specificentry is provided, the same will be given preference - Welding transformer, eventhough used for welding purpose it merits classification under CH 8504 - Impugnedorder set aside and Revenue appeal allowed: CESTAT [para 4]


Ajinkya Enterprises Vs CCE (Dated: January 6, 2017)

CX – Appellant receiving HR/CR coils and carrying out activity of de-coiling, cutting andslitting of HR steel coils and pickling and oiling the same – department disputingavailment of CENVAT credit on HR/CR coils on the ground that the activity does notamount to ‘manufacture' – Tribunal - 2011-TIOL-1333-CESTAT-MUM] allowing appealsby holding that whether or not activity amounts to manufacture, but since duty waspaid on processed HR/CR sheet, CENVAT credit is admissible – Revenue appealdismissed by Bombay High Court - 2012-TIOL-578-HC-MUM-CX – during the period ofdispute, appellant had been filing various rebate claims in respect of duty paid on theirfinal products while clearing goods to SEZ, considering the same as export –sanctioning authority appropriating the amount of rebate towards confirmed demand –Commissioner(A) rejecting appeal against this order on the ground that original casewas not settled – appeal to CESTAT. Held: In view of the facts, all the refundsanctioned and appropriated in the Order-in-Original now become refundable to theappellant - Since the demand has been dropped, the status is as if demand was notrecoverable - In these circumstances, appellant is also entitled for the interest from thefiling of rebate application till the release of the rebate amount to the appellant -appeals are allowed with consequential relief: CESTAT [para 5]


CCE Vs Agarwal Salt Company (Dated: December 30, 2016)

CX - Assessee engaged in manufacture of Electric Insulators of Ceramics - Issuerelates to improper claim of CX exemption under notfn 8/2003-CE - Evidencescollected did not establish that three units, whose turnover is sought to be clubbedwith assessee's turnover were not proved to be dummy units - The contrary evidencesregarding recognition by various statutory authorities, maintenance of separate bankaccounts, payments for raw materials and receipt of sale proceeds of finished goodscannot be discounted to hold the units as dummy: CESTAT


Dr Sadan Kumar Vs CCE & C (Dated: January 27, 2017)

CX - Car for Physically handicapped persons - Notification 6/2006-CE does not requireproduction of NOC from car manufacturer about claiming refund - appellant has madecompliance of the conditions of the Notification No. 6/2006-CE and all the documentaryevidences clearly established that appellant is eligible for the exemption notification -AA to grant refund within three months along with interest: CESTAT [para 5, 6]



CCE Vs Bharti Hexacom India Ltd (Dated: January 31, 2017)

CX - Revenue in appeal against o-in-a dropping the penalty imposed on respondent.Held: Appeal filed by respondent against the same o-in-a was allowed by settingaside the order and granting consequential relief - in this view of the matter, nothingsurvives against the assessee - Revenue appeal dismissed: CESTAT [para 4, 5]


CCE Vs Drolia Electro Steel Pvt Ltd (Dated: December 30, 2016)

CX - Issue is regarding sustainability of demand for the extended period -Commissioner (A) held that assessee was regularly filing ER-I Returns showing credittaken on these disputed items and they also maintained proper RG-23 accounts -Revenue only contended that in self-assessment system, assessee should have takenonly eligible credit; irregular credit was noticed only during audit of accounts; assesseedid not give detailed list of items on which credit is taken - Said submissions byRevenue do not establish the ground for invoking suppression - Allegation of malafideintention or suppression on the part of assessee is not legally sustainable: CESTAT


Cement Corporation Of India Ltd Vs CCE (Dated: September 22, 2016)

CX - Assessee engaged in manufacture of ordinary Portland cement and cementclinkers and are availing facilities of CENVAT credit of duty paid on inputs, inputservices and capital goods - They submitted an annexure in which they had givendetails/description of various MS items and also the purposes for which they were used- Descriptions shows that MS items were either used for fabricating theparts/components/accessories of capital goods or for repair and maintenance of suchmachinery and equipment - Assessee is eligible for credit - Impugned order is setaside: CESTAT


Birla Periclase Vs CC & CE (Dated: August 31, 2016)

Central Excise - MODVAT Credit - appellants setup a project to manufacture magnesiafrom sea water, and started receiving capital goods at their factory site - they fileddeclaration under 57T for availing Modvat credit on capital goods - the JAC informedthe appellants that final products namely Sea Water Magnesia was classifiable underChapter Heading 25.05 of Central Excise Tariff Act, 1985, which attracted nil rate ofduty and hence Modvat benefit was not available - Subsequently, the JAC took adiametrically opposite view and held that Sea Water Magnesia was classifiable underChapter Heading 3824.90 attracting 18% advoleram duty, directed the appellants to

obtain a Central Excise Registration Certificate and follow the Central Excise Rules andProcedures - The appellants obtained Registration under protest and filed classificationdeclaration under Rule 173B of Central Excise Rules, 1944 - on realizing that they haveincorrectly availed SSI exemption for the clearances made since inception, they filedrevised classification declaration under Rule 173B for withdrawing the SSI exemptionand started clearing goods with full rate of duty - Duty was also paid for the clearancesmade during the period 26-12-1997 to 11-03-1998; availment of credit and paymentof differential duty was reflected in the RT-12 for the month of March 1998 - On 31-03-1998 appellants filed a declaration under Rule 57H (1) in support of their availmentof credit of Rs. 1,11,72,186 - The credit was denied in adjudication, with demand forits recovery with interest and penalty, culminating in the instant appeal.

Held: Issue stands covered by the rulings relied upon by the appellant - the SLP filedbefore Apex Court by department against the decision of the High Court of MadhyaPradesh in the case of Gilt Pack Ltd., was dismissed - following the dictum laid in thesejudgments, the impugned order is unsustainable. [Para 5-7]


CCE & CC Vs Andhra Organics Ltd (Dated: December 22, 2016)

Central Excise - CENVAT Credit - assessee availed credit on MS plates, sheets, joists,single leaf door, glazed view panel etc. - The department entertained the view thatcredit is inadmissible; denied the entire credit in adjudication, confirmed the demandfor its recovery along with interest and penalty - Commissioner (Appeals) allowedcredit on all items except single leaf door and glazed view panel - The department is inappeal against the OIA allowing the credit, while the assessee has filed cross objectionbeing aggrieved by the disallowance of credit on single leaf door and glazed viewpanel.

Held: From the Order-in-Original as well as from reply to the show cause notice it isseen that the appellant has used the MS items for fabrication of capital goods; noinfirmity in the order passed by the Commissioner (Appeals) allowing the credit on MSitems - Commissioner (Appeals) has disallowed credit on single leaf door and doubleglazed view panel against which the assessee has filed cross objection, with prayer toallow the same - These items are used for packing unit and are specialized civilconstruction items; denial of credit upheld - assessee has no case that the irregularcredit was reversed; therefore the prayer to set aside interest demand on irregularlyavailed credit on single leaf door and glazed view panel is not tenable. [Para 6, 7]


Aditya Birla Nuvo Ltd Vs CC, CE & ST (Dated: October 26, 2016)

Central Excise - Maintainability of Appeal - From Section 35B of CEA, 1944, it is clearthat the Tribunal has no jurisdiction to decide any appeal in respect of an order whichrelates to rebate claim of duty of excise - Though the appellant argues that the issueinvolved is only with regard to interest on rebate claim sanctioned by Commissioner(A), interest being compensation for delay or denial of legitimate amount, it isintegrally connected with the issue of rebate - Hence, appeal is not maintainable beforethe Tribunal - Appeal dismissed . [paras 2, 3]


Apar Industries Ltd Vs CCE (Dated: December 2, 2016)

CX - Appellant clearing imported Base oil on payment of duty equivalent to CENVATcredit availed - AA demanding Education Cess on the removal on the ground thatclearance was made after imposition of Education Cess by FA, 2004 - appeal toCESTAT. Held: As per plain reading of rule 3(4) of CCR, 2004, it is clear that what is

required to be paid at the time of removal of CENVATTED input is the credit equivalentto that availed - when no Education Cess was paid (and taken as credit) on inputs atthe time of procurement, no further Education cess is required to be paid at the time ofremoval - moreover, even in case of manufactured goods, if the same aremanufactured prior to imposition of Education Cess, on such clearances too EducationCess is not attracted - for this reason also, demand is not correct - impugned order setaside and appeal allowed with consequential relief, if any: CESTAT [para 4]


CC, CE & ST Vs Akula Boards Ltd (Dated: October 7, 2016)

Central Excise – CENVAT Credit – Denial of credit on Cement, TMT bars, Aluminumcoils, SS Sheets/coils, Hydrogen peroxide, Caustic soda flakes, dyes, fibre drums ascapital goods for the period 4.2006 to 2.2008 – demand set aside on merits and aswell as on limitation, in view of the precedents.

It is seen that the demand period is prior to 7.7.2009 , i.e., prior to introduction ofrestriction for use of steel and other items for laying foundation/shed – Cement andTMT bars were used to fix machinery without which they cannot function withoutvibration – SS sheets and coils were used for fabrication of vast machinery andaluminum coils were used for cladding boiler pipes – Moreover, admissibility of crediton impugned items was contentious during the demand period – So, assessee wasunder bonafide belief that they are eligible for credit – It is not the case that assessehad not disclosed the fact of availment of credit in ER-1 returns – Hence, nosuppression of facts can be alleged against assessee with intent to evade duty and assuch extended period is not invocable, in view of the precedents – Hence, demand istime barred – Assessee's appeal is allowed. [paras 2, 6, 7, 8]


Aerochem Impex Pvt Ltd Vs CC, CE & ST (Dated: November 4, 2016)

Central Excise – Penalty – It is admitted fact that appellant as dealer has issuedfictitious Cenvatable invoices without actual supply of goods and thus abettedfraudulent availment of credit, which cannot be allowed to recur or fester in trade andindustry – Lower authorities have analyzed the evidence in detail and confirmed thedemand with interest and penalties – No reason to consider appellant's submission totake lenient view on the penalty imposed as it is an admitted case of abatement infraudulent availment of credit – Appeal dismissed. [paras 1, 3]


IRIS Industries Vs CCE (Dated: January 19, 2017)

CX - Even if brand is not affixed on the product but the product is sold by using theidentity of brand, then also SSI exemption is not available – It is beyond imaginationthat after having franchisee arrangements the appellant will not use the brand name of"sunflex" - as per the customer's acceptance agreement, mention of brand on invoiceclearly establishes that the goods with the identity of Sunflex brand were being sold –invoice itself is an evidence that "sunflex" branded goods were being manufacturedand sold by the appellants - Benefit of Notfn. 8/2003-CE is not admissible – impugnedorder upheld and appeals dismissed: CESTAT [para 3 to 5]



Jaypee Bela Plant Vs CCE (Dated: November 29, 2016)

Central Excise – Cement exported to Nepal – Notification No 4/2006 CE - The contentsof the notification and of the table annexed therewith at Sr. No.1A and 1C are very

clear that when the subject goods are not covered for declaration of retail price underStandards of Weights and Measures (Packaged Commodities) Rules, 1977, the benefitof the notification under Sr. No. 1A is not admissible for the subject goods; however,the goods where the retail sale price is not required to be cleared other than packageform would be entitled to the benefit in this Notification No. 4/2006-CE under its S. No.1C of the table attached. Therefore, by reading the description of excisable goodsmentioned in Col. 3 at S. No. 1C of the table annexed to the subject notification, theappellant in respect of the goods exported to Nepal is entitled to the benefit of thisnotification. (para 5)


Adcon Technologies Pvt Ltd Vs CCE (Dated: January 5, 2017)

CX - Whether 'Controller and Field Interface Board' manufactured by appellant for usein Lift/Elevator is classifiable under CH 8431 as lift parts or as Control panel [CH8537.00] as claimed by the Revenue. Held: Appellants product is control panel butwithout the motherboard and/or the processor - Even though the control panel iswithout motherboard but having all other components, it will be treated as controlpanel for the reason that a particular product even if it is semi-processed or partiallyprocessed and will merit classification under the head of fully finished product only interms of Note 2(a) of Section Note to Section XVI of the CETA, 1985 - impugned orderclassifying goods under 8537.00 is upheld and appeal is dismissed: CESTAT [para 4]


Air Liquide North India Ltd Vs CCE & ST (Dated: August 2, 2016)

Central Excise - Non-reversal Cenvat credit on inputs cleared - No documents produced- Cenvat Demand upheld: The submissions of the appellant that cylinder valves wereprocured during the period 2007-2008 on which cenvat credit has not been taken, isnot appreciated at this juncture for the reason that no documents were produced toshow that the valves cleared during the disputed period were procured prior to 2007-2008 and no Modvat / Cenvat credit has been taken by the appellant. Therefore, nomerits in the appeal and the cenvat demand confirmed against the appellant alongwith applicable rate of interest and the penalty confirmed in the adjudication order isupheld. - para 6

Central Excise - Capital Goods procured prior to 1994 - Matter remanded: With regardto clearance of scrap and discarded capital goods, the submission of the assessee isthat the original capital goods were procured during the period 1993/1994 on which noModvat / cenvat credit had been availed by the appellant. The additional documentsproduced before the Tribunal were not produced before the authorities below. Sincethe documents have to be verified at the original stage, the matter can be remandedto the Original Authority for verification of the documents/ records. Therefore, thematter is remanded to the original authority for verification of the records. If theoriginal authority is satisfied that records/documents are proper, then he should allowthe cenvat benefit and drop the duty demand. - para 7

Central Excise - Cenvat Credit - Interest on delayed reversal of cenvat credit -Sufficient balance in Cenvat Account - No interest: The submission of the appellantthat they had sufficient balance in their account to take care of the cenvat amountconfirmed in this case, is accepted. Thus, there is no loss to Revenue to theGovernment exchequer. Since interest is compensatory in character, and in view of thefact that there is no loss of Revenue, confirmation of interest of Rs.2,26,704 /- andpenalty of Rs . 500/- is not proper and justified. Thus, appeal filed against suchdemand is allowed and the impugned order is set aside. - para 8

Central Excise - Cenvat Credit - passing the cenvat credit to the customers undercenvatable invoices issued by the dealer: The appellant is registered under CentralExcise Department both as a manufacturer as well as a first stage dealer. Since, theinvoices were issued by the first stage dealer to the buyers of the goods, and the said

goods are not co-relatable with the goods manufactured by the appellant as amanufacturer, credit cannot be disallowed on the cenvatable invoices issued under thedealer registration certification. Thus, cenvat demand of Rs . 50,207/- and theimposition of penalty of equal amount is not sustainable.


Golden Steel Corporation Ltd Vs CCE (Dated: September 28, 2016)

Central Excise - issue involved revolves around the activities of appellant GSCLwhether they have indulged in clandestine manufacture and clearance of Iron andSteel finished goods falling under Chapter-75 of the Central Excise Tariff Act, 1985 –case against GSCL is based on a daily performance report of H R Strips, allegedshortage of finished goods as per a joint stock taking, weighment slips of the GoldenWeighbridge under the control of appellant GSCL.

Held: No correlation brought out by the adjudicating authority that the quantitiesmentioned in the H R Strips report are not reflected in the statutory records ofAppellant GSCL – Appellant also requested for cross examination which has not beenentertained - by virtue of Section 9D of the Central Excise Act, 1944 cross examinationof the relied upon witness has to be extended when the same is sought for by theaggrieved party – if the request isn't entertained the same has be rejected andinformed to the concerned party – in absence of which the evidentiary value ofstatement is lost – appellants never admitted to have indulged in clandestinemanufacture and removal of finished goods - investigation has only suggested to someclandestine activity but there is no positive evidence – as clandestine removal is aserious charge, it cannot be held on basis of presumption, assumption and surmises -Charge of the department regarding clandestine removal and duty demand on thisground is not sustainable and is required to be rejected – penalties cannot be imposedonce on merit case id decided in favor of appellant – (Para 6)


Anjani Cements Ltd Vs CC, CE & ST (Dated: September 26, 2016)

Central Excise - CENVAT Credit - Keyman insurance - It is seen from the policy thatthe clause for nomination or appointment of guardian in the case of minor is notapplicable to the said policy. It is evident that when nomination clause is not applicablethe policy though in the nature of life insurance has an altogether different character.Thus in case of death of keyman, it is seen that sum assured is to be paid to company.The intention is to meet the crisis which the company may undergo due to thedeath/loss of key person. From the very object of keyman insurance it is evident thatthe service is availed for protecting the loss that may occur to the company in theevent of death of the keyman - In such circumstances the activity of insurance andauxiliary services availed for taking KIP cannot be said to fall within the exclusionportion of the definition - The appellants are eligible for credit. The impugned orderdisallowing the credit is unsustainable. The same is set aside. The appeal is allowedwith consequential reliefs, if any. (para 4)


CC & CE Vs Allen Petro Chemical Pvt Ltd (Dated: January 4, 2017)

CX - Assessee engaged in manufacture of Hydrocarbon Oil Solvent, Sprav Oil, HeavyOil, Kerosene Oil & Special Boiling point solvent - Only ground of appeal is that OriginalAuthority while deciding the issue has not made any independent study in matter toconfirm the products of being suitable for use as fuel either by itself or in admixturewith any other substance for use as fuel in spark ignition engines and has solely reliedon report of Chemical Examiner's report - Revenue also did not submit any literature orargument for establishing that conclusion drawn by Chemical Examiner or decision ofOriginal Authority is not tenable in law - Therefore, no sustainable ground advance byRevenue: CESTAT


Dalmia Cements (Bharat) Ltd Vs CCE & ST (Dated: February 13, 2017)

CX - CENVAT - Excisability of capital goods is not a point for decision - credit on Capitalgoods cannot be denied on the ground that they were embedded to earth afterinstallation - Appeal allowed: CESTAT [para 5 to 7]



Parle Product Pvt Ltd Vs CCE (Dated: December 30, 2017)

CX – Valuation – Appellant discharging duty in terms of rule 8 of Valuation Rules, 2000on cost construction method – as exact costing is not available at the time ofclearance, value is worked out on the basis of previous year financial data and whenactual overheads are available, duty is recomputed – differential duty payment arisesand which is paid – issue is whether interest is payable u/s 11AB of CEA, 1944 on suchdifferential duty. Held: There is an admitted delay in payment of excise duty andthough the delay is due to non-availability of correct cost data, on this ground, interestpayment cannot be avoided – limitation does not apply – Tribunal being a creature ofthe statute, cannot grant any immunity – reference to Larger Bench of the SupremeCourt in the case of Steel Authority of India - 2015-TIOL-292-SC-CX involves the saleof goods and issuance of supplementary invoice and is different from the facts in thepresent case – Interest is correctly payable on the delayed payment of duty –impugned order upheld and appeal is dismissed: CESTAT [para 4]


CE, C & ST Vs Pushpaman Forgings (Dated: January 5, 2017)

CX - Issue is whether M.S. Forged Flanges, as parts/spares of the wind mill towermanufactured by appellant is eligible for exemption Notification No. 6/2000 dated 1-3-2000 as non conventional energy devices/systems. Held: In the appellants' own case -2005-TIOL-666-CESTAT-MUM , the Tribunal has held that flanges, being part of towerwhich is essential component of WOEG, an unconventional energy service device wouldbe eligible for benefit of notfn. 6/2000-CE - Revenue appeal against this order hasbeen dismissed by the apex court on 21.01.2006 - since the decision of Tribunal hasattained finality, impugned order upheld and Revenue appeal is dismissed: CESTAT[para 4]


CC & CE Vs Penna Cement Industries Ltd (Dated: October 28, 2016)

Central Excise - Penalty - Issue of eligibility of credit on freight charges paid foroutward transportation of goods, is a contentious one during the demand period andthere were decisions in favour of both the Revenue and the assessee until it wassettled by the precedent decision of High Court - Hence, Commissioner (A), thoughupheld the demand of Cenvat credit and interest there upon, has rightly set aside thepenalty imposed - Hence, Revenue's appeal against setting aside of penalty isdismissed. [paras 1, 2]


Universal Drinks Pvt Ltd Vs CCE (Dated: January 24, 2017)

CX - Whether an adjudication order can, in the manner natural to protozoa, split intotwo – No, says CESTAT [para 7, 8, 9, 11, 12]



Trinity Dic Forgers Ltd Vs CCE (Dated: January 23, 2017)

CX - Valuation - Section 4 of CEA, 1944 - When documentary evidences are available,statement alone cannot be relied upon - it is established from records that the goodscleared by the appellant to their sister concern was not fully finished and, therefore,valuation could not have been done u/r 6(c)(iii) of Valuation Rules, 1975 and u/r 9 ofValuation Rules, 2000 - Transaction also is revenue neutral - Impugned order set asideand appeal allowed: CESTAT [para 4, 5]



Star Coolers And Condensers Pvt Ltd Vs CCE (Dated: December 2, 2016)

CX - Appellant cleared goods availing exemption notification 6/2002-CE on thestrength of CT-2 certificate and at the time of clearance reversed CENVAT creditattributable to input used in the manufacture of exempted goods - department raiseddifferential duty demand on the ground that appellant should have paid 8% of value ofexempted goods in terms of rule 6 of CCR, 2004 - appeal to CESTAT. Held: Clearanceswere made against CT-2 certificate as per procedure laid down under CE (Removal ofgoods at concessional rate of duty for manufacture of excisable goods) Rules, 2001and copy of CT-2 was submitted to jurisdictional R/s - moreover, reversal of CENVATon pro-rata basis was mentioned on the invoice, therefore, availment of exemptionnotification and reversal of credit was disclosed to department - nothing prevented thedepartment to issue SCN well within the normal period of one year as there was nosuppression of facts on the part of the appellant - furthermore, once reversal of creditavailed is made on pro-rata basis, no further demand u/r 6 of CCR, 2004 can be madeas held by apex court in case of Bombay Dyeing & Manufacturing Co. Ltd. - 2007-TIOL-141-SC-CX - impugned order is set aside and appeal is allowed: CESTAT [para 5]


Shishir Nevatia Vs CCE (Dated: October 21, 2016)

CX - Duty demands were confirmed on the ground that appellants are using the brandname "()GPrecision()" belonging to some other person and, therefore, not entitled toSSI exemption in terms of notification 8/98-CE, 8/99-CE - Appellants are personsagainst whom penalties are imposed u/r 209A of CER, 1944/rule 26 of CER, 2002 -appeal to CESTAT. Held: Earlier appeal of manufacturer against denial of exemptionand confirmation of duty demand has already been allowed by Tribunal on limitationand for the subsequent period, Tribunal - 2016-TIOL-2552-CESTAT-MUM had allowedthe appeal on merits on the ground that the brand name was registered in the name ofthe partnership firm wherein the registration of brand was shown effective from02.12.1997 - in view of the above facts, penalties on the appellants are set aside andappeals are allowed: CESTAT [para 4]


CCE Vs Rallis India Ltd (Dated: January 5, 2017)

CX - Respondent assessee imported ‘Solubor' [CH 3105] and repacked the same andsold it as fertilizer - original CE authority concluding that activity of repacking ismanufacture since Solubor is correctly classifiable under chapter 28 which chapter noteapplies - Commissioner(A) dropping demand on the ground that at the time of importgoods were classified under CH 3105 and the assessment done by Customs cannot bereviewed by the CE officer - Revenue in appeal before CESTAT. Held: Only becauseCustoms has decided the classification of the goods under CH 3105, the same will notbe binding on Central Excise authorities - Commissioner(A) has not decidedclassification based on the nature of the goods - Commissioner(A) is supposed to

decide classification of ‘Solubor' under CETA, 1985 without getting influenced by theclassification arrived at by Customs authority - Matter remanded to Commissioner(A)to pass fresh order: CESTAT [para 3]


CCE Vs Super Smelters Ltd (Dated: August 26, 2016)

CX – CENVAT – Case of the department is that M/s. Ashok Electrical Stamping Pvt. Ltd., from whom the capital goods were received by the Respondent and on which CenvatCredit was taken were not having any infrastructure for the manufacture of capitalgoods – Credit allowed by Commissioner (A), therefore, Revenue in appeal to CESTAT– Respondent contending that Rule 9(3) of the CCR only prescribes reasonable steps tobe taken by the recipient with respect to appropriate duty paid as indicated in thedocuments and also the existence of the supplier respondent; that requirements underRule 9(3) of CCR does not specify that infrastructure details of the supplier should alsobe ascertained. Held: It cannot be held that Respondent had any mala fide intentionto take wrong Cenvat Credit when both capital goods and the duty paying documents,bearing the registration number of the supplier, were received by the Respondent andrecorded in their statutory records - Further as Respondent did not have any mala fideintention while taking credit, therefore, extended period in demanding Cenvat Credit isnot sustainable – SCN issued in September 2009 whereas credit was taken in May2007, therefore, demand is also time barred – Revenue appeal dismissed: CESTAT[para 7]


Triveni Engg And Inds Ltd Vs CCE (Dated: August 12, 2016)

CX - Appeal filed against impugned order wherein disallowance of credit on weldingelectrodes and M.S. Plates/Grader used in repair and maintenance, have been upheld,although the penalty under Rule 15 of CCR have been deleted - Rulings relied upon byRevenue relates to the period prior to 1/4/11 - Accordingly, assessee is entitled to takeCenvat credit on welding electrodes, M.S. Plates/Graders in view of substituteddefinition of inputs with effect from 1/4/11 - Impugned order set aside: CESTAT


Ecoboard Industries Ltd Vs CCE (Dated: January 6, 2017)

CX - Appellant manufacturing dutiable goods which became exempted from CE dutyw.e.f 04.02.2004 - SCN issued demanding reversal of credit on inputs invoking rule6(1) of CCR, 2004 - demand confirmed by lower authorities, therefore, appeal toCESTAT. Held: Same issue has been decided by Tribunal in case of Albert David -2002-TIOL-114-CESTAT-DEL concluding that upon a harmonious reading of rulesdealing with MODVAT and particularly 57AC and rule 57AD that MODVAT/CENVATcredit shall not be allowed on such quantity of inputs which is used in manufacture ofexempted goods; that appeal against the said order has been dismissed by apex court- relying upon the said order, demand of reversal of credit is upheld and penalty is setaside: CESTAT [para 4, 5]


Ginni Filaments Ltd Vs CCE & ST (Dated: November 11, 2016)

CX - Assessee were manufacturer of Cotton Yarn and Cotton Knitted Fabrics - Theyinitially recovered Central Excise duty and subsequently through credit notes refundedrecovered duty to the accounts of buyers and therefore, established that dutyincidence which was passed on to buyers was withdrawn and recovered by assessee -As per decision of High Court of Karnataka in case of Jineshwar Malleable & Alloys, ifcredit notes are raised and benefit is passed on to customers, thus, not passing onburden on customers, assessee is entitled to refund of the same - Assessee is entitled

for refund, therefore, appeal is allowed: CESTAT


Finolex Cables Ltd Vs CCE (Dated: January 16, 2017)

CX - CENVAT - Input Service - Rule 2(l) of CCR, 2004 - Token recovery of Re 1 peremployee per day is as an administrative cost and is not intended to defray the cost offood served to the employees - amount recovered can hardly be deemed to be theconsideration for serving of food - entire expenditure is remitted to the serviceprovider by appellant and employees do not engage commercially with service provider- service is availed in furtherance of its manufacturing activity - Tax paid towardssupply of canteen services is admissible - Impugned order set aside & appeal allowed:CESTAT [para 4, 5]



CCE Vs Electrolux Kelvinator Ltd (Dated: December 15, 2016)

CX – Whether Refrigerators sold to Soft drink manufacturer in bulk is liable to bevalued u/s 4 or u/s 4A of the CEA, 1944? – Respondent discharged excise duty u/s 4Aof the CEA, 1944 but Revenue objected to the same and demanded differential duty byapplying valuation u/s 4 of the CEA, 1944 – Commissioner (A) setting aside orderconfirming demand by relying on the decision in ITEL Industries Pvt. Ltd . 2003-TIOL-218-CESTAT-BANG – Revenue in appeal before CESTAT. Held: Issue has already beensettled by the Supreme Court in the case of Jayanti Food Processing (P) Ltd. - 2007-TIOL-150-SC-CX , therefore, issue is no longer res integra – Revenue appealdismissed: CESTAT [para 4]


Hindustan Zinc Ltd Vs CCE (Dated: January 24, 2017)

CX - Assessee engaged in manufacture of lead and zinc concretes which is transferredto their sister concerns working as smelters - Dispute pertains to year 2009-10 duringwhich provisional assessment had been ordered - During this period assessee shortpaid duty to the extent of Rs. 6,20,89,843/- whereas they paid excess duty to theextent of Rs.12,43,44,540/- -Iissue has been decided in favour of assessee by Tribunalon the same issue for an earlier period - Issue is no more res integra and has beensettled by Tribunal in favour of assessee in several cases by relying upon the decisionof Karnataka High Court in case of Toyota Kirloskar Auto Parts Pvt. Ltd. 2012-TIOL-10-HC-KAR-CX - Impugned order set aside: CESTAT


Hitachi Home And Life Solution India Ltd Vs CCE & ST (Dated: December 5,2016)

CX - Refund - Appellate authority allowed the refund claim filed by assessee but samewas directed to pay it by re-crediting their CENVAT account - Except in the case ofexport of goods, in no other case refund of credit is permissible under the rules in cashor by cheque - No discrepancy found in impugned order: CESTAT


Indian Farmers Fertilizer Co Operative Ltd Vs CCE & ST (Dated: November 30,2016)

CX - Assessee engaged in manufacture of fertilizers Grade Urea, which is exemptedfrom payment of duty and also they manufacture dutiable products viz. Ammonia,

liquid carbon dioxide and dry ice - They have availed CENVAT Credit on pumps, partsand other parts of control system against two invoices in year 2007 and availed 50%of total credit on such parts in same Financial year 2007 - Balance 50% they claimedin the next financial year i.e. April 2008 - SCN is vague inasmuch as it does not referto details of erroneous credit and relevant documents before demanding credit - Thereis no reason to deny them balance 50% credit availed in April 2008, when capitalgoods received in year 2007, and Department has not disputed admissibility of crediton said invoices in allowing first installment of 50% credit in the financial year 2007-08: CESTAT


Orient Bell Ltd Vs CCE (Dated: December 1, 2016)

CX - Assessee engaged in manufacturer of glazed ceramic tiles and vitrified tiles -Revenue views that assessee have availed inadmissible Cenvat credit on inputs/capitalgoods and input services in violation of Rule 15(2) of CCR, 2004 r/w Section 11AC ofCEA, 1944 - So far as Cenvat credit taken on photocopies of Courier B/E is concerned,Cenvat credit is allowable on Xerox copies where input service received is not indispute and there is no dispute of payment of service tax/duty - All input servicesreceived are held as eligible for credit except Services of peon at H.O. and Servicesutilized for a ppty. Of Mr. Daga at Kolkata, Rent-a-cab services, Payment to sea courtin Jaypee Green and Loading/unloading of trading goods: CESTAT


Indian Oil Corporation Ltd Vs CCE (Dated: November 8, 2016)

CX - Assessee cleared High Speed Diesel (HSD) at the normal assessable value afterpayment of appropriate Central Excise duty - They entered into an agreement with M/sUPSRTC for discount of Rs.450/- per KL on 19/01/2004 - Commissioner (A) has heldthat the discount was not admissible - Duty incidents has been passed on to thecustomers, before 19/01/2004 and further the discounted value shall be admissibleonly with effect from 19/01/2004 - Matter remanded: CESTAT

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