CESTAT RULING · Central Excise – CENVAT Credit – Credit cannot be denied to the appellants on the ground that the supplier had passed on the excess credit when no action was

CESTAT RULING

2010-TIOL-1435-CESTAT-MUM

Kraftech Packers Vs CCE, Thane-II (Dated: September 21, 2010)

M-seal is ‘other mastics' classifiable under heading 32.14 of the CETA, 1985 and not “Putty” – Assessment sought to be made by Revenue under section 4A for the period 1.4.01 to 28.2.2002 in terms of notification 5/2001-CE(NT) held unsustainable – Appeal allowed with consequential relief

Also see analysis of the Order

2010-TIOL-1434-CESTAT-MAD

M/s Globe Steels (P) Ltd Vs CCE, Chennai (Dated: April 22, 2010)

Central Excise – Goods sent to sister unit without permission – Since the entire quantity was received back within 180 days, the assessee is not liable for interest – However for contravention of rule 8 of the CENVAT Credit Rule 2004, the appellant is liable for penalty which is reduced to Rs 5,000/-


M/s Ashok Leyland Ltd Vs CCE, Chennai (Dated: June 7, 2010)

Central Excise – Stay / Dispensation of pre-deposit – Goods cleared under exemption Notification 108/95 CE dated 28.08.1995 supplied to the contractor, but not to the project authorities – Prima facie case for waiver of deposit in view of the Tribunal orders in favour of the assessee.


CCE, Chennai Vs M/s Greaves Cotton Ltd (Dated: July 22, 2010)

Central Excise – CENVAT Credit – Credit is admissible on “Air Ticket Booking Service”.


CCE, Chennai Vs M/s Rotork Control (India) Pvt Ltd (Dated: July 7, 2010)

Central Excise – CENVAT credit – Credit is admissible on maintenance of water coolers installed in the factory.


M/s Shardlow India Limited Vs CCE, Chennai (Dated: April 26, 2010)

Central Excise – CENVAT Credit – Credit cannot be denied to the appellants on the ground that the supplier had passed on the excess credit when no action was taken against the supplier for passing excess credit – Demand also barred by limitation.


Forbes & Company Ltd Vs CCE, Pondicherry (Dated: July 28, 2010)

Central Excise – Refund of unutilized CENVAT credit – The assessee is entitled to interest under Section 11 BB of the Central Excise Act, 1944 on delayed refund of unutilized credit.


M/s Pentafour Products Ltd Vs CCE, Pondicherry (Dated: June 14, 2010)

Central Excise – Stay/Dispensation of pre -deposit – 100% EOU – Failure to fulfill export obligation – Since the appellants fulfilled 50% of the export obligation, demand of duty prima facie would get reduced by 50% - However, argument that the unit has been declared as BIFR unit which by itself is not sufficient for waiver of pre-deposit – Appellants ordered to pre -deposit Rs 75,00,000/-


Oil & Natural Gas Corporation Ltd Vs CCE, Raigad (Dated: September 24, 2010) Whether a manufacturer of LPG selling the product in bulk, post-1.7.2000, to an Oil Marketing Company for further sale in packed form to dealers/ domestic consumers and recovering ex-refinery price from the OMC as sale consideration is entitled to adopt ex-storage price (APM price) as the assessable value – SC decision in MRPL can be said to have been passed sub silentio - Matter referred to Larger Bench


2010-TIOL-1418-CESTAT-BANG

M/s Liebherr Machine Tools India Pvt Ltd Vs CCE, Bangalore (Dated: August 3, 2010)

Central Excise – Manufacture of accessories which are essential parts used in retro-fitment of gear shaping machines received under job work challans – Non-inclusion of value of machines for discharge of duty liability on accessories manufactured and used in job work activity – Evidence on record indicates that accessories fitted are vital for functioning of machines – Pre-deposit of Rs. 2 crores ordered


CCE, Chennai Vs M/s Eveready Industries India Ltd (Dated: April 8, 2010)

Central Excise – Valuation – Batteries cleared from Chennai Unit to Dehradun Unit for blister packing – No case to demand duty by assessing the goods under Section 4A at Chennai unit – Impugned order holding that there is no short payment is upheld.


M/s Royal Enfield Vs CCE, Chennai (Dated: June 15, 2010)

Central Excise – Valuation – Advertising charges incurred by the dealers - Advertisement expense incurred by the dealers which is not reimbursed by the appellants is not required to be included in the assessable value as the advertising has been done by the dealers on voluntary basis without there being a legally enforceable stipulation in the re levant agreements between the appellants and the dealers.


Hyva (India) Pvt Ltd Vs CCE, Belapur (Dated: September 23, 2010)

Notification 6/2002-CE – alleged unjust Cenvat ‘enrichment' by vehicle manufacturers – When Section 5A(1A) of CEA, 1944 does not compel the appellant to avail the exemption notification like 6/2002-CE, it cannot be forced on them by interpreting CCR as suggested by the Department - interpretation of explanation to rule 3 of CCR should not lead to a situation of introducing additional condition in the notification – same has to be applied only in cases where the exemption notification is on the condition that no input credit on any of the inputs is available – Appeal allowed



M/s Dhiren Gandhi Vs CCE, Bangalore (Dated: August 2, 2010)

Appeal of the applicant was dismissed for non-deposit of Rs.35 lakhs - the entire amount covered by the Tribunal's order passed under Section 35F of the Act was either deposited by applicant or otherwise recovered by the department during the pendency of proceedings before the High Court or after dismissal of the SLP by the apex court – Applicant entitled to benefit of Scan. Computer Consultancy ( 2006-TIOL-449-HC-AHM-CX ) , a benefit which is liable to be granted under Rule 41 of the CESTAT (Procedure) Rules, 1982, which authorises this Tribunal to pass, in appropriate cases, orders for the ends of justice, if not under Section 35C of the Central Excise Act – Application allowed and appeal restored.


M/s Dhiren Gandhi Vs CCE, Bangalore (Dated: May 24, 2010)

Central Excise – Application filed for rectification of stay order passed by Tribunal – ROM application maintainable only when orders are passed by Tribunal under s. 35B and not for stay orders passed under s. 35F


M/s Electronics & Controls Power Systems Pvt Ltd Vs CCE, Bangalore (Dated: July 5, 2010) Central Excise – Eligibility of Notification No. 10/97-CE for supply of UPS to ISRO through BEL, for implementation of Tele-Education through EDUSAT – Certificate in accordance with condition (i)(a) of Notification No. 10/97-CE procured from Satellite Communications Programme Office of Department of Space and produced to Excise authorities before clearance of goods – Prima facie case for full waiver of pre -deposit – Stay granted


M/s Dalmia Cements (Bharat) Ltd Vs CCE, Trichy (Dated: June 17, 2010)

Central Excise – Penalty under Section 11 AC – The appellants were sanctioned refund of 75% of the equal amount of penalty paid under Section 11 AC as the duty amount and interest and penalty were paid within one month from the date of communication of the order – The action of the jurisdictional Commissioner to review the order of refund is unwarranted.


CCE, Salem Vs JSW Steels Ltd (Dated: July 7, 2010)

Central Excise – CENVAT Credit - Failure on the part of the department due to long time gap to verify the transporters copy in original cannot lead to denial of substantive benefit of credit to the assessees – Impugned order allowing the credit is upheld and revenue's appeal rejected.


M/s Indo Rama Synthetics (I) Ltd Vs CCE, Nagpur (Dated: June 15, 2010)

CENVAT credit not available on furnace oil which is being used in generation of electricity which was supplied to the residential colonies – no malafide established – penalty equal to credit availed will be harsh - lenient view needs to be taken – Token penalty imposable – penalty reduced to Rs.50,000/- Appeal disposed of.

2010-TIOL-1398-CESTAT-DEL

M/s Dhillon Kool Drinks and Beverages Ltd Vs CCE, Jalandhar (Dated: August 6, 2010)

Central Excise - Valuation - The distributors of the appellant assessee are not independent, but mere extensions of the assessee - There is a huge difference between the price at which the goods were cleared to the distributors and the price at which the goods were sold by the distributors - The transactions cannot be treated as on principal to principal basis - The firms/company have been created by the assessee to their assessable value - It is the price charged by the distributors after permissible deductions if any will be the assessable value of the good and not the price at which the appellant assessee has been showing as sale price to the distributors.

Deductions from the distributors' sale price - salary & wages of the staff engaged in marketing and distribution of the goods is includible in the assessable value of the goods - PMX machine rental & repair/maintenance charges are allowed on actual basis.

Limitation - Since the distributors are nothing but dummy entities created by the assessee, to depress their assessable value for evading central excise duty and since the facts regarding real natu re of transaction came to the knowledge of the Department only after a departmental investigation, longer limitation period under proviso to Section 11A(1) of the Excise Act, 1944 would be available to the Department for recovery of short paid duty and for the same reason, the provisions of Section 11AB and Section AC would also be attracted.

Cum-Duty - Benefit of cum-duty as decided in Maruti Udyog Case is not available to the assessee on the differential value as the same did not include excise duty.



M/s Mahalakshmi Cable Industries Vs CCE, Delhi-II (Dated: August 4, 2010)

Central Excise – ROM – Scope of mistake apparent from record under Section 35C (2) of the Central Excise Act, 1944 - What that can be rectified is to be appreciable by a cursory glance to the order and should be apparent therefrom - Rectifiable mistake must be patent mistake and discovery thereof is not from elaborate argument - The power to rectify the mistake does not cover cases where a revision or review of the order is intended – ROM application is dismissed.



M/s Chemplast Sanmar Ltd Vs CCE (LTU), Chennai (Dated: July 29, 2010)

Central Excise – CENVAT Credit on capital goods – The appellants purchased the entire factory in which the capital goods were situated – There is no removal of capital goods to attract the provisions of Rule 3(5) of the CENVAT Credit Rules 2004 – Demand of credit and penalty set aside.


M/s B Girijapathi Reddy & Co Vs CCE, Guntur (Dated: May 25, 2009)

Central Excise – Stay order restraining jurisdictional Commissioner from taking coercive action passed on April 3, 2008 by Single Member – Matter not taken up for regular disposal of Stay application and Appeal thereafter – Explanation sought from Registry for not listing the appeal before Two Member Bench thereafter till date – Department also did not pursue appeal in spite of issue involving high revenue – Registrar directed to forward copies of this order and order dated April 3, 2008 to FM, Revenue Secretary and Chairman, CBEC – Registry directed to issue notice to assessee's counsel regarding date of further hearing


CCE, Mumbai Vs M/s D'Damas Jewellery India Pvt Ltd (Dated: August 19, 2010)

When the department has alleged that the Cenvat credit has been taken wrongly, the action cannot be termed as willful action of the assessee - In that situation, the intention to evade duty is absent – Penalty u/s 11AC of the CEA, 1944 not imposable.



M/s Jupiter Radios Vs CCE, Delhi (Dated: June 30, 2010)

Central Excise – CENVAT Credit - In view of the registration numbers being fake or being of the vehicles not capable of transporting the goods mentioned in the invoices and the statement of the proprietor of the supplier company clearly mentioning that no material had been supplied and only the invoices had been issued, the burden of proving that the goods had actually been received, would be on appellant which has not been discharged – Appeal dismissed.


M/s Meenakshi Castings Pvt Ltd Vs CCE, Kanpur (Dated: June 21, 2010)

Central Excise – Restoration of appeal dismissed for non-compliance with the Stay order under Section 35F of the Central Excise Act, 1944 - The appeals once dismissed for non compliance of statutory obligation under the said Act, cannot be restored without a sufficient cause in that regard is made out - The applicant has not disclosed the fact why the Stay order was not complied with - Mere saying that the applicant could not made the pre-deposit within time does not make sense - The applicant failed to substantiate the ground for non-compliance of the statutory order within time - Hence the plea taken by the applicant at this stage cannot be considered.


CCE, Hyderabad Vs M/s Kanta Rubber Pvt Ltd (Dated: April 22, 2010)

Central Excise – Clandestine manufacture and removal of rubber products – When goods seized are provisionally released on furnishing of bond and bank guarantee, order of Commissioner (A) holding that no goods were available for confiscation not sustainable, SC decision in Weston Components Ltd = ( 2002-TIOL-176-SC-CUS ) followed – Redemption fine reduced from Rs. 1 lakh to Rs. 25,000/-


M/s Sharavathy Conductors Pvt Ltd Vs CCE, Bangalore (Dated: June 24, 2010)

Central Excise – Liability to pay interest on differential duty paid and collected through supplementary invoices issued for price escalation – SCN issued on 08.12.2008 for demanding interest on duty liability arising during 2004 to 2007 – Prima facie case for waiver of pre-deposit on ground of limitation only – Full waiver of pre -deposit allowed and stay granted


M/s Bharat Petroleum Corporation Ltd Vs CCE, Mumbai (Dated: July 27, 2010) Appellants are a manufacturer of dutiable and exempted final products and have reversed the proportionate credit in respect of the exempted final products including products captively used and hence they are prima facie eligible to the claimed exemption under Notification No.67/95-CE in view of clause (vi) to the proviso inserted w.e.f. 1.7.2001 in notification read with retrospective amendment in rule 6 of CCR, 2004 by Finance Act, 2010 which allows reversal of proportionate credit – Pre-deposit waived.

Bombay High Gas Oil (BHGO) and Naphtha manufactured by the appellants using cenvatted inputs and used within the factory of the appellant for generation of electricity used in the administrative building and canteen – credit whether allowable - there is a difference in the definition of the expression "factory" under the Central Excise Act, 1944 and the Factories Act, 1948, the latter being more restrictive – Prima facie case – Pre -deposit waived.


BASF India Limited Vs CCE, Belapur (Dated: June 23, 2010)

Recovery of Modvat credit - SCN was issued on 19.6.2001 invoking the provisions of Rule 57 I of CER, 1944 - modvat provisions were substituted by Cenvat provisions, by Notification No.27/2000-CE(NT) dt. 31.3.2000 - on the date of issue of the SCN, Modvat provisions were not in exis tence in the statute book having been substituted - no saving clause contained in the Notification cited hereinabove – SCN not sustainable – order set aside and appeal allowed with consequential relief.

2010-TIOL-1373-CESTAT-AHM

M/s Ashima Limited Vs CCE, Ahmedabad (Dated: June 11, 2010)

Central Excise – Appeals – Refund claims of service tax used for manufacturing goods exported in terms of Notification No. 41/07-ST – Appeals rejected by Appellate Commissioner having not filed within 60 days in Form EA.1 – Notification No. 41/07-ST having issued under Section 93 of Finance Act, 1994, matters related to refund claims there under come within purview of Section 85(3) thereof – Section 85(3) applies to all service tax related cases including refund claims of service tax – Statutory time limit for appeal is three months – Matter remanded for de novo consideration, with a direction to treat the matters as related to service tax and

decide issues by following principles of natural justice


CCE, Chennai Vs M/s Annapoorna Re-Rolling (P) Ltd (Dated: July 27, 2010)

Central Excise – No appeal can be disposed of by the Commissioner (Appeals) unless the application under Section 35F of the Central Excise Act, 1944 / under Section 129E of the Customs Act, 1962 is first disposed of – Matter remanded to Commissioner (Appeals) to pass orders first on assessee's application in terms of Section 35 F of the Central Excise Act, 1944.


M/s Positive Packaging Industries Ltd Vs CC, Mumbai (Dated: August 23, 2010) Show cause notices alleging different modes of valuation in respect of same dispute decided accordingly and duty demand upheld – Anomaly brought to notice of Tribunal but same escaped attention of Bench when final order was passed – Apparent error in final order and needs rectification - ROM allowed and matter remanded for re-quantification of duty



CC & CCE, Raipur Vs M/s Hari Om Ingots Power Pvt Ltd (Dated: July 21, 2010) Central Excise – Eligibility of CENVAT Credit on M S channels, Angles, PF beam, Plate, Joist procured for manufacture of supporting structure for crane and furnace – As there is no clarity in findings of lower authority on nature of use of impugned items i.e. whether they are merely used for supporting structures or used for manufacture of any identifiable capital goods, matter remanded for de novo consideration – Impugned orders set aside


GEE GEE Granites Ltd Vs CCE, Chennai (Dated: June 8, 2010)

Central Excise – 100% EOUs – Benefit of Notification No 8/97 CE which grants exemption to finished goods manufactured from wholly indigenous raw materials cannot be denied on the ground that imported steel grits were used in the process of

cutting the granite blocks.


CCE, Raipur(CG) Vs M/s B S Sponge Pvt Ltd (Dated: June 8, 2010)

Central Excise – Refund of CENVAT credit debited at the insistence of the department - The assessee who claims to have not committed any default in payment of amount or in availing the CENVAT credit can be compelled to pay the amount and can be restrained from utilising such amount indefinitely, nor in such a case, if the assessee approaches the department with the application for refund of the same, it can be just rejected on the ground that the department would like to initiate necessary proceedings at its sweet will – The respondents had filed the application for refund of the said amount paid under protest, contending that there was no proceedings initiated against them - If the department wanted to initiate proceedings against the respondents, in the absence of any justifiable reason for delay, it ought to have initiated the action at the earliest possible. Having not done so, there was no justification for the department to deny the right of refund to the respondents – No substance in revenue's appeal.


M/s Amar Food Products Vs CCE, Lucknow (Dated: June 16, 2010)

Central Excise – Confiscation - Confiscation adjudged without issue of show cause notice to the assessee to whom the goods were provisionally released cannot be upheld - Goods cleared without payment of duty – Penalty imposed under Rule 173 Q reduced to an amount equal to the duty.


M/s Albert David Ltd Vs CCE, Ghaziabad (Dated: June 18, 2010)

Central Excise – Stay /Dispensation of pre-deposit – Classification - Medicaments – SIOOXY capsules whether classifiable under sub-heading 15042090 as other facts and oils and their fractions of fish, other than lever oil at Nil rate of duty or under sub-heading 30045090 chargeable to duty as contended by revenue – Pre-deposit ordered as the department has prima facie case on merits.


M/s Servokon Systems Pvt Ltd Vs CCE, Delhi (Dated: July 9, 2010)

Central Excise – Stay/Dispensation of pre-deposit – Clubbing of clearances and denial of benefit of small scale exemption – The second unit did not have any power connection and no payment was made to power supplied by the other unit – Staff as well as the labour pool of both the units was common – Goods manufactured from both the units were sold under the same brand name – Department has a strong prima facie case – Pre-deposit ordered.


Mr A V Pandhe Vs CCE, Visakhapatnam (Dated: February 15, 2010)

Central Excise – Manufacture of steel structurals viz., rafters, boxes, frames, columns, floor-beams etc and used captively for construction of houses on Andaman & Nicobar Islands for families affected by Tsunami – Materials suitable for shelters fabricated in terms of contract awarded by CPWD cannot be regarded as goods capable of being bought and sold in market, not exigible to duty – Materials being pre-fabricated buildings as detailed in tender documents and invoices, classifiable under CSH 9406 and not as steel structurals of CSH 73089010 – Full waiver of pre -deposit allowed and stay granted


M/s Subramaniam Electric Fabricate Vs CCE, Chennai (Dated: June 9, 2010)

Central Excise – Manufacture - MS street light tubular poles manufactured by the appellants is a new marketable commodity different from pipes – Demand of duty upheld – Penalty under Rule 173 Q is reduced to Rs 25,000/-


CCE, Tirunelveli Vs Sri Kaliswari Fireworks (Dated: April 19, 2010)

Central Excise – CENVAT Credit on outward transport of finished goods – Since the matter is pending before the Karnataka High Court, appeals are adjourned – Appeals not relating to outward transportation are dismissed as infructuous.


M/s Reid & Taylor (I) Ltd Vs CCE, Mysore (Dated: June 28, 2010)

Central Excise – Eligibility of exemption notification 67/95-CE for intermediate products viz., polyester tops and tow – Applicability of Notification No. 30/04-CE providing exemption from levy of duty to polyester tops and tow prima facie covered by High Court of Bombay judgment in Raymond Ltd = 2009-TIOL-319-HC-MUM-CX –

Amount of Rs. 93.56 lakhs deposited earlier suffices a s pre-deposit


CCE, Aurangabad Vs Midas Care Pharmaceuticals Pvt Ltd (Dated: September 14, 2010)

Unjust enrichment - Merely because the MRP of the goods remains the same when the duty is paid and when the goods are cleared at Nil rate of duty, it cannot be presumed that the burden of duty has not been passed on to the customers – Matter remanded



M/s Kalaimahaa Plastic Industries Vs CCE, Pondicherry (Dated: June 10, 2010) Central Excise – Penalty under Section 11 AC – The appellants paid the duty with interest – The appellants are required to be extended an option to pay 25% of the penalty imposed under Section 11 AC – Matter remanded to the original authority.


CCE, Delhi Vs M/s Taneja Mines (P) Ltd (Dated: August 13, 2010)

Central Excise – Manufacture of statuettes and decorative novelty/fancy gift items such as pictures, mementos, certificates, souvenirs, medals, pen stands, visiting card holders and jewellery boxes – Manufacturing process interalia involves cutting to size pieces of nickel foil plated with gold, i.e. (precious metal) and affixing them with acrylic frames or mounted on metal/acrylic base – Classifiable under Ch. No. 8306.00 – Explanatory Notes for Heading 8306 stipulate that photograph, picture, mirror etc and frames of base metal of all shapes and dimensions are covered in this Heading and classifiable in this Heading even if fitted with supports or with backings of paperboard, wood or other material – Impugned orders classifying them under 4901.90 set aside – Demand of duty with interest sustainable, but in view of classification dispute levy of penalties set aside – CENVAT Credit on inputs used in manufacture of impugned goods allowed subject to documentary proof


Raymond Ltd Vs CCE, Mumbai (Dated: July 27, 2010)

‘Woolen Tops' [SH 55.06] entitled to exemption from duty under notification 30/2004-CE – As there is a judgment of the High Court on the applicability of the Exemption Notification to the subject-goods, the same has got to be followed by the CESTAT inasmuch as the direction is to decide on the aforesaid issue in accordance with “law” which includes “case law” - suggestion of the DR that the task of interpretation be left to the original authority would have been accepted had any question of fact been cited for better decision:



M/s Oudh Sugar Mills Ltd Vs CCE, Lucknow (Dated: June 18, 2010)

Central Excise – CENVAT Credit – Credit is admissible on welding electrodes used for repair and maintenance of plant and machinery in view of the Chhattisgarh High Court decision in case of Ambuja Cements Ltd 2010-TIOL-309-HC-CHHATTISGARH -CX – Matter remanded with regard to welding electrodes used for other than repair and maintenance.


M/s R B Jodhamal & Co Pvt Ltd Vs CCE, Chandigarh (Dated: August 6, 2010)

Central Excise – Eligibility of exemption notification 67/95-CE for manufacture of steel formers (hollow cylindrical profiles placed in induction furnace) captively used in further manufacture of M S Ingots under compounded levy scheme – Hollow cylindrical profiles manufactured and consumed captively cannot be regarded as parts used solely or principally in induction furnace, classifiable under Chapter 73.06 and not Chapter 85.14 as claimed – Benefit of Notification 67/95-CE not available – Demand prior to August 1999 i.e. prior to date of filing of classification declaration declaring manufacture and captive use of steel formers, to be recomputed along with quantum of penalty payable under s. 11AC – Duty demand after August 1999 hit by limitation – Matter remanded to Commissioner (Appeals)


Indian Explosives Ltd Vs CCE & ST, Nagpur (Dated: September 15, 2010)

Appellants clearing goods to sister unit on approximate basis of valuation without resorting to provisional assessment and arriving at final Assessable value at the end of year by cost construction method and paying differential duty Interest payable u/s 11AB of the CEA, 1944.



M/s Wings Electronics Ltd Vs CCE, Meerut (Dated: July 22, 2010)

Central Excise – CENVAT Credit – Credit denied on the ground that original bills of entry not produced for defacement – DRI having seized relevant bills of entry and later on provided copies of some documents on request except the two impugned documents, appellant's claim that impugned documents were perhaps misplaced by DRI to be accepted – Impugned orders denying credit set aside


M/s Venus Auto Pvt Ltd Vs CCE, Kanpur (Dated: August 6, 2010)

Central Excise – Whether manufacturer eligible to claim benefit of exemption Notfn 9/98-CE w.e.f 01.08.1998 when duty was paid at normal rate from 01.04.98 to 31.07.98 – Classification declarations filed by assessee claiming benefit of Notfn 38/97-CE w.e.f 1.4.98 (predecessor to Notfn 9/98-CE) – Notfn 9/98-CE only prohibits manufacturers opting to pay concessional rate with MODVAT credit to withdraw and opt in favour of Notfn 8/98-CE which provides full exemption upto clearance of Rs. 1 crore without MODVAT benefit – No bar in availing benefit of Notfn 9/98-CE during a financial year even if normal rate of duty paid prior to that date so long as such clearances are included for computation of threshold limits prescribed – Impugned orders set aside


M/s Essorpe Mills Ltd Vs CCE, Coimbatore (Dated: July 15, 2010)

Central Excise – Refund – Limitation – Refund claim arising from the Tribunal's order dated 27.10.1995 filed within one year from the date of insertion of Section 11B(5)(B)(ec), i.e., 11.5.2007 is not barred by limitation.


M/s Atlanta Pumps (P) Ltd Vs CCE, Bangalore (Dated: August 4, 2010)

Central Excise – CENVAT Credit availed on bought out items viz., MS ERW pipes procured directly at customer's site reversed before issue of SCN – No findings recorded by lower authorities on appellant's plea that extended period not invokable when monthly returns mentioned receipt of pipes at factory premises – Credit not eligible when goods are not used in or in relation to manufacture of final products viz., pumps but equal penalty levied under s.11AC set aside – Matter remanded to original authority to consider levy of penalty from the angle of there being no suppression as

pleaded by appellant – Adjudicating authority also directed to record specific finding on suppression of facts as well


CCE, Mumbai Vs M/s Crompton Greaves Ltd (Dated: August 4, 2010)

Repairing of transformers does not amount to manufacture – such transformers after repairs were cleared by reversing the Cenvat credit taken on inputs used in such activity – no cause for holding such payments as “deposits” and proposing recovery u/s 11D of the CEA, 1944 – Revenue appeal dismissed



M/s Regal Crimptex Pvt Ltd Vs CCE, Vapi (Dated: August 6, 2010)

Central Excise – Clearance of manufactured yarn to sister unit for dyeing and duty paid thereon without ascertaining cost of production under Rule 8 of Valuation Rules, 2000 – Differential duty for years 2002-03 and 2003-04, paid in July–Sept 2006 – SCN issued in Sept 2006 for demand of interest under s. 11AB without invoking penal provision of s. 11AC for differential duty paid beyond one year – Provisions of s.11A(2B) read with s.11AB not applicable when differential duty paid beyond one year and suppression/mis -representation are not invoked - Assessee cannot be held to be liable for payment of any duty in such instances when extended period not invoked – Impugned order demanding payment of interest liable to be set aside


M/s Sreesakthi Paper Mills Ltd Vs CCE, Kochi (Dated: May 17, 2010)

Central Excise – Manufacture and clearance of paper upto 3500MTs availing benefit of exemption under Notification No. 4/2006-CE as amended – Benefit of notifications denied for entire quantity of 3500MTs on the ground that certain clearances were made on payment of duty even before crossing exemption threshold – Text of notification does not envisage such restrictions – Prima facie case for full waiver of pre -deposit – Stay granted


M/s Coromandel Paints Ltd Vs CCE, Visakhapatnam (Dated: September 8, 2010)

Central Excise - Valuation - Job work - Rule 10 A of the Central Excise Valuation (Determination of Price of the Excisable Goods) Rules 2000 - Merely indicating the vendors of the raw materials or by giving advance money for procurement of such materials or installing the equipments given by the buyer would not render the appellant as a job worker - The findings of the Commissioner (Appeals) to come to conclusion that the relationship between the appellant and the buyer of the goods is job worker and principal manufacturer is incorrect - Demand of differential duty set aside.



CCE, Tiruchirappalli Vs Thiru Arooran Sugars Ltd (Dated: July 23, 2010)

Central Excise – CENVAT Credit on MS Plates, MS Joints and MS Steel etc – Credit is not admissible in view of the Larger Bench decision in case of M/s Vandana Global Ltd and others.


CCE, Chennai Vs M/s Turbo Energy Ltd (Dated: July 5, 2010)

Central Excise – CENVAT Credit – Credit is admissible on Air/Rail ticket booking, Insurance, Mediclaim, Contractors policy, Vehicle maintenance and security services.


Roots Industries Ltd Vs CCE, Coimbatore (Dated: April 19, 2010)

Central Excise – CENVAT Credit – Whether cenvatted inputs could be removed for export under bond or whether on payment of an amount equal to credit availed – Issued stands settled in favour of the assessee by the CESTAT.


CCE, Bangalore Vs M/s Milestone Aluminium Co (P) Ltd (Dated: June 1, 2010)

Central Excise – Valuation – Non-inclusion of value of bought out items like glass, handles etc in final products like doors, windows and structures – Assessee not put to any notice of details brought out from investigations carried out after conclusion of personal hearing – Order-in-Original passed relying on such information amounts to an order traversing beyond show cause notice, liable to be set aside – No infirmity in

impugned order setting aside Order-in-Original


M/s Shri Ambika Sugars Ltd Vs CCE, Trichy (Dated: July 22, 2010)

Central Excise – CENVAT Credit – Credit is not admissible on the inputs used for generation of electricity wheeled out to Electricity Board in view of the Supreme Court decision in case of M/s Maruti Suzuki Ltd – Matter remanded for quantification of demand.


CCE, Puducherry Vs M/s Tanfac Industries Ltd (Dated: July 30, 2010)

Central Excise – CENVAT Credit – Demand of 10% under Rule 6 of the CENVAT Credit Rules 2004 – When the goods manufactured by the assessee are excisable and the same are cleared to certain categories of customers under exemption Notification, provisions of Rule 6 are not attracted as the rule requires manufacture of two categories of products, one excisable and the other exempted.


M/s Pavai Alloys & Steels (P) Ltd Vs CCE, Salem (Dated: April 12, 2010)

Central Excise – Stay/Dispensation of pre -deposit – Clandestine manufacture and clearance - When an assessee is indulging in illegal manufacturing and clearance, he will obviously not maintain authentic records of such illegal activities - The Tribunal cannot expect the Department to recover and produce authentic records of the assessee's illegal activities - There is a prima facie case against the appellants – Pre-deposit of Rs 2,00,00,000/- ordered.

2010-TIOL-1295-CESTAT-KOL

M/s Bestlite Industries Vs CCE, Kolkata (Dated: March 25, 2010)

Central Excise – Appellate Commissioner's order directing assessee to pre-deposit full amount of duty and penalty without any personal hearing violates principles of natural justice and contrary to Section 35A of Central Excise Act – Impugned order set aside and matter remanded


Asrani Tubes Ltd Vs CC & CCE, Hyderabad (Dated: May 28, 2010)

Central Excise – Demand of interest – Irregular credit availed recovered with penalty after issue of first SCN in 1996 – Second SCN issued after 11 years for demand of interest under Rule 57I of CER, 1944 – Since provision for recovery of interest introduced only w.e.f. 01.03.1997, demand of interest not sustainable


M/s Hema Exports Vs CCE, Surat (Dated: July 29, 2010)

Central Excise – 100% EOU – Shortage of goods noticed during the surprise check conducted and recorded in the panchanama and admitted by the partner of the appellants - In view of the evidences in the nature of panchnama, admission statements of partner and admission statement of the broker, the illicit removal of yarn has to be upheld.


M/s Synthetic Silica Products Vs CCE, Kanpur (Dated: July 13, 2010)

Central Excise – Remission of duty on goods destroyed in fire accident – Commissioner's finding that the party had not managed properly and they are guilty of negligence, omission and bad management are not borne out of the facts - Finding that the goods have been destroyed due to negligence, omission and bad management is set aside and matter remanded for passing a speaking order.


M/s Yamaha Motors India (P) Ltd Vs CCE, Noida (Dated: August 6, 2010)

Central Excise – CENVAT Credit – Used lubricants removed as waste oil – Credit is not required to be reversed.

Job –work – Inputs sent to the job-worker not received back - The assessee had produced before the Commissioner (Appeals) job-work challans showing the return of inputs in respect of part of the demand which was set aside by the Commissioner (Appeals) – No reason to interfere with the order of the Commissioner (Appeals).

Penalty – Penalty under Section 11 AC is not attracted – Reduced penalty of Rs 50,000/- under Rule 57I/57AH of the Central Excise Rules is moderate and no further reduction is justified.


M/s G L Metallica Pvt Ltd Vs CCE, Jaipur-I (Dated: June 21, 2010)

Central Excise – CENVAT Credit - The registered dealers who passed on the credit have not received the goods with proper duty paying documents - The goods were procured from other sources - There is no correlation between the document supplied by the Importer and the goods arranged by the broker. The credit passed on by the registered dealers was irregular and therefore, the credit taken by the manufacturer is not legal and proper.

There is no evidence that the two registered dealers and the manufacture are aware of the fabrication of bill of entry as duty paying documents. They have acted bonafide . Therefore, penalties on them are not sustainable.


M/s Sidh Industries Vs CCE, Chandigarh (Dated: May 28, 2010)

Central Excise – Registered dealer – All the evidence shows that ever since the Appellant firm had been given registration for operating as registered dealer in iron steel items of Chapter 72 of Central Excise Tariff, they neither had any office / premises nor they were maintaining any account – Registration has rightly been cancelled by the Assistant Commissioner.


M/s Ambica Re-Rolling Mills Vs CCE, Ahmedabad (Dated: June 1, 2010)

Central Excise – Goods falling under Chapter 72 of CETA manufactured in structural mill and bar mill installed in factory and cleared on payment of duty based on annual capacity of production – Intimation of closure of structural mill w.e.f 1.4.1998 and bar mill w.e.f. 1.4.1999 given to Commissioner and duty paid on actual production in terms of Section 3A(4) – Differential duty demanded in terms of Rule 96ZP(3) denying benefit of Section 3A(4) on the ground that benefit of said Rule available only when benefit not claimed under Section 3A(4) – Held: Plethora of judgements from CESTAT holding option can be changed in subsequent financial year and relied upon by appellant, not considered by Adjudicating Authority – Matter remanded for de novo consideration by following principles of natural justice – Appellant directed to cooperate with adjudicating authority without seeking unnecessary adjourments


M/s Bhoruka Trailers Pvt Ltd Vs CCE, Bangalore (Dated: April 30, 2010)

Central Excise – Refund of pre -deposit – Pre-deposit amount adjusted against dues arising against a confirmed demand – Since the duty demand was set aside by Tribunal, in the absence of any confirmed dues, pre-deposit has to be returned to assessee – Impugned orders set aside


CCE, Mysore Vs M/s Chamundi Textiles (Silk Mills) Ltd (Dated: April 16, 2010) Central Excise – Refund of unutilized CENVAT Credit under Rule 5 of CCR, 2004 – When time limit for filing of refund claim is one year, there is no requirement that input credit claimed as refund should correspond to months in which exports have taken place – No infirmity in impugned order of Appellate Commissioner allowing refunds

Refund of CENVAT Credit – Credit eligible to be taken on invoices raised on pure agent bearing liabilities on behalf of assessee – Service tax paid on CHA service, servicing of car etc eligible as CENVAT Credit – Invoices raised on head office eligible for credit at factory – Service tax on input services availed for supply of goods to SEZs eligible for credit/refund – In the absence of details of consultancy service availed for acquisition of business outside India, credit not eligible .


CCE, Delhi Vs M/s HI-TECH Electronics Industries (Dated: May 12, 2010)

Central Excise – Denial of small scale exemption under Notification 1/93 CE to the goods manufactured by other manufacturers in the same factory under the same brand name – Commissioner (Appeals) clearly erred in holding that liability in matter lies upon the main manufacturer in whose factory the goods were manufactured and not on the respondent assessees – Order of original authority confirming the demand on the respondent assessees is restored.


M/s Cradel Pharmaceutical Pvt Ltd Vs CCE, Kolkata (Dated: March 3, 2010)

Central Excise – Eligibility of CENVAT credit on ‘fruit flavour mix' when both inputs and finished goods alleged to contain alcohol – When finished products manufactured out of impugned inputs are cleared on payment of excise duty, credit not deniable on duty paid inputs – Tribunal decision in Savera Pharmaceuticals Pvt Ltd 2007-TIOL-1768-CESTAT-DEL followed – Impugned order set aside


M/s Micro Labs Ltd Vs CCE , Bangalore (Dated: May 25, 2010)

Central Excise – CENVAT credit – Credit availed on ‘steel doors with frames' as ‘capital goods' but reversed subsequently without utilization, interest not liable to be paid in lieu of P & H High Court decision in Ind-Swift Laboratories case = 2009-TIOL-440-HC-P&H-CX – Credit availed due to misunderstanding of provision of law but reversed subsequently without utilization, penalty not leviable – Impugned order set aside


M/s JSW Steels Ltd Vs CC, Belgaum (Dated: February 2, 2010)

Central Excise – Classification – Mixture of gases termed ‘export gas' emerging during manufacture of HR coils whether ‘carbon monoxide' classifiable under Chapter 281190 and exigible to duty – ‘Export gas' subjected to further process and sold for use as fuel in generation of electricity – Gaseous mixture predominantly being carbon monoxide, rightly classifiable under Chapter Heading 281190 as claimed by Revenue and not Chapter 2705 as claimed by Assessee


M/s Bidar Sahakara Sakkare Karkhane Ltd Vs CCE, Belgaum (Dated: June 10, 2010) Central Excise – Letter of Deputy Commissioner communicating Commissioner's decision to reject application for remission of duty, appealable to CESTAT – Matter remanded to Commissioner to decide the issue following principles of natural justice


M/s Doshi Ion Exchange & Chemical Industries Ltd Vs CCE, Ahmedabad (Dated: July 13, 2010)

Central Excise – Eligibility of exemption Notification No. 6/02-CE for water treatment plants and reverse osmosis plants – S. No. 237 of Notification No. 6/02-CE applicable only to specified non-conventional energy devices/systems – Benefit of duty exemption not available – Since Appellate Commissioner has set aside demand invoking extended period and issue being subject matter of dispute before Tribunals, penalties liable to be set aside


CC & CCE, Raipur Vs M/s HEG Ltd (Dated: June 23, 2010)

Central Excise – CENVAT Credit – Credit on repair and maintenance of power plant, Insurance of cars and two wheelers, cleaning services, rent a cab service, commission on sale service, Mobile phone service is admissible – Credit of Security service used at a place other than factory is not admissible.


CCE Vs M/s Core Fabs Project (P) Ltd (Dated: June 23, 2010)

Central Excise – CENVAT Credit on plates, angles, channels used for supporting structures and furnace stands – Credit is not admissible in view of the Larger Bench decision in case of M/s Vandana Global Ltd – However, the question of imposition of penalty does not arise.


CCE, Thane Vs The Tiger Steel Engineering (I) Pvt Ltd (Dated: July 8, 2010)

Rule 5 of CCR, 2004 - Term ‘export' used in Rule 5 of the CENVAT Credit Rules, 2004 stands for ‘export', which is ‘physical export' out of the country, envisaged under the Customs Act - anybody other than SEZ unit can not be allowed to claim any benefit under the SEZ Act/Rules - Respondent cannot be held to be entitled to refund of accumulated CENVAT Credit on the inputs used in or in relation to the manufacture of the ‘pre-fabricated buildings' supplied by them to the SEZ units – Revenue appeals allowed



M/s Nisha Cements Vs CCE, Calicut (Dated: May 20, 2010)

Central Excise – Allegation of clandestine manufacture and clearance of cement – Order passed by lower appellate authority confirming duty demand by neither addressing various grounds raised by assessee nor discussing case laws cited and without giving proper findings thereon, not sustainable – Impugned order set aside and matter remanded

2010-TIOL-1251-CESTAT-BANG-LB

M/s Roys Industries Ltd Vs CCE, Hyderabad (Dated: September 14, 2010)

Central Excise – Valuation – RSP - pet jars/ poly bags containing individual pieces of Eclairs weighing less than 5.5. gms. each – assessment to be under Section 4A – In view of the finding of fact by the referral Bench in this case that the impugned poly packs and pet jars are multi-piece retail packages and the total weight of the pieces in such packages exceed 20 gms, the exemption under Rule 34(b) is not applicable and consequently, the assessment is required to be done applying provisions of Section 4A.



M/s Madras Cements Ltd Vs CCE, Trichy (Dated: June 22, 2010)

Central Excise – CENVAT Credit – No credit is required to be reversed on the paper bags damaged in the course of packing Cement – Impugned order is set aside.


M/s Allovers And Lace Pvt Ltd Vs CCE, Pune (Dated: August 11, 2010)

Mere fact that the order of the appellate authority is not “acceptable” to the department is in itself an objectionable phrase for not following it unless its operation has been suspended by a competent Court - If this healthy rule is not followed, the result will only be undue harassment to assessee and chaos in administration of tax laws.



CCE, Tiruchirapalli Vs M/s Maris Spinners Ltd (Dated: March 26, 2010)

Central Excise – Used capital goods removed from the factory – Payment of duty on depreciated value is acceptable – No merit in revenue's contention to demand duty equal to the credit availed.


M/s M M Dyeing & Finishing Mills Pvt Ltd Vs CCE, Ludhiana (Dated: April 9, 2010)

Central Excise – Eligibility of Notification No. 14/2002-CE for processed knitted fabrics of man made fibre/yarn manufactured out of grey fabrics – If appellant is an independent processor engaged in manufacture of knitted fabrics using unprocessed fabrics acquired from outside, presumption regarding its duty paid character would be available in terms of Explanation II thereof, but will be rebuttable if there is evidence indicating that such unprocessed fabrics are non-duty paid, concessional rate of duty would not be available in respect of processed fabrics in such cases – On the contrary, if appellant is a composite mill or a processor engaged in manufacture of fabrics from yarn/fibre stage, Explanation VII thereof would be applicable and conditions for concessional rate of duty on processed fabrics will be treated as satisfied if yarn or fibre from which grey fabrics are manufactured, is duty paid – SCN or Orders passed by lower authorities unclear on status of appellant – Matter remanded to original authority for de novo adjudication


M/s Sri Sai Enterprises Vs CCE, New Delhi (Dated: July 1, 2010)

In a case where the assessee himself admits certain basic facts which lead to clear conclusion about clandestine manufacture and clandestine removal of the goods from the factory, onus obviously shifted upon the assessee to disprove the facts established by the Department on the basis of admissions made by the assessee – Demand upheld



CCE, Belgaum Vs M/s Encop Wires (Dated: May 24, 2010)

Central Excise – Inputs used in job work undertaken in terms of Notification No. 214/86-CE as well as manufacture of final products – Credit not deniable on inputs used in job work – No infirmity in orders passed by lower authorities


Ambaji Metal Industries Vs CCE, Pune-II (Dated: July 21, 2010)

Second stage dealer issuing CENVATable invoices in October, 2004 without physically supplying goods to manufacturer – Penalty u/r 25 of the CER, 2002 not imposable



M/s Praga Tools Ltd Vs CCE, Hyderabad (Dated: May 13, 2010)

Central Excise – Refund claim of excess duty paid on inflated turnover without manufacturing any final products – Assessee being a PSU, lower authorities have not considered CAG report on inflated turnover figures appended to balance sheet and revised figures declared to Income Tax and Sales Tax authorities – Since excise duty is payable only on manufacture, matter remanded to original authority for de novo consideration by following principles of natural justice – Impugned orders set aside


M/s Rajyalakshmi Machine Works Pvt Ltd Vs CCE, Coimbatore (Dated: April 23, 2010)

Central Excise – Default in payment of education cess – Provisions of Rule 8 of the Central Excise Rules, 2002 are not attracted for delay in payment of Cess as Rule 2 (e) defined duty as duty payable under Section 3 of the Act, but Cess is payable under Section 91 of the Finance Act, 1994.


M/s Rohini Mills (P) Ltd Vs CCE, Chennai (Dated: May 28, 2010)

Central Excise – Interest under Section 11AA of the Central Excise Act – Liability to pay interest starts from the date of determination of duty liability by the original authority – Contention that interest starts after the order of Supreme Court confirming the demand is not sustainable.


M/s Sakthi Sugars Ltd Vs CCE, Salem (Dated: April 29, 2010)

Central Excise – Appeal before the Commissioner (Appeals) – Dismissal of appeal on the ground of expiry of the statutory period of limitation – The appeal has been wrongly dismissed as time barred as the date of filing of the appeal or the date of receipt of the order in challenge has to be excluded from the computation of period of limitation – matter remanded.


M/s Win Enterprises Vs CCE, Chennai (Dated: June 16 2010)

Central Excise – Manufacture – Whether the process of cutting of matting in roll form and stitching the edges so as to convert them into floor mats would amount to manufacture – Matter referred to Larger Bench in view of conflicting decisions.



M/s Madras Cements Ltd Vs CCE, Trichy (Dated: June 23, 2010)

Central Excise – CENVAT Credit – Credit on supplementary invoices - There is no dispute that the additional duty demand was confirmed against the supplier manufacturer only well after the assessees had taken the credit on the strength of the supplementary invoices issued by the manufacturer - Therefore, supplementary invoices on the strength of which the disputed credit was taken cannot be considered as in-eligible document and the restriction contained in Rule 9(1) (b) of the CENVAT Credit Rules 2004 is not attracted.


CCE, Hyderabad Vs M/s Endeavour Industries Ltd (Dated: March 12, 2010)

Central Excise – Refund of balance amount of CENVAT credit lying in the books after closure of factory to be made in cash – No infirmity in impugned order of Appellate Commissioner


M/s Surbhi Textile Mills Vs CCE, Surat-I (Dated: May 14, 2010)

Central Excise – Liability to pay AED (TTA) when assessee opts for Notification No. 33/2001-CE issued under Rule 15 of CER, 2002– In absence of any specific exemption notification, assessee liable to pay AED (TTA) – As issue involves interpretation of law, penalty not leviable, liable to be set aside


M/s Tata Motors Ltd Vs CCE, Jamshedpur (Dated: February 16, 2010)

Central Excise – CENVAT Credit denied on the ground that vendor was under investigation for clandestine removal and on other minor grounds like defective invoices – Order denying credit set aside but order relating to verification of genuineness of documents upheld – Penalties set aside


Electronics & Controls Power Systems Pvt Ltd Vs CCE, Bangalore (Dated: June 9, 2010)

Central Excise – Valuation – Value of bought out items viz., batteries supplied separately to buyers of UPSS to be included in value of UPSS – Plea for reference to Larger Bench not tenable – Appeal devoid of merits, liable to be rejected


M/s Videocon Industries Ltd Vs CCE & CC, Nagpur (Dated: July 19, 2010)

Proceedings beginning from application for remission stand on wrong premise – Remission u/r 21 of the CER, 2002 does not apply to inputs in Work in Progress (WIP) – Application for remission, O -in-O and related Appeal dismissed as not maintainable.



M/s Sitaram Printing & Processing Pvt Ltd Vs CCE, Ahmedabad (Dated: May 24, 2010)

Central Excise – Fixation of annual production capacity of independent textile processor – It is settled law that gallery portion not to be considered for fixing APC and even if APC fixed was not challenged, gallery not a basis for determination of APC – Matter remanded for determining duty liability excluding gallery portion


M/s Tejpal Paper Mills Limited Vs CCE, Ahmedabad (Dated: July 14, 2010)

Central Excise – Default in fortnightly payment of duty under Rule 8 of CER, 2002 entails penalties only under the Rules and not Section 11AC of the Act – Penalty reduced from Rs. 2.5 lakhs to Rs. 5000 in terms of Rule 27 of CER


M/s Shri Ambika Sugars Ltd Vs CCE, Trichy (Dated: July 22, 2010)

Central Excise – CENVAT Credit – Credit is not admissible on the inputs used for generation of electricity wheeled out to Electricity Board in view of the Supreme Court decision in case of M/s Maruti Suzuki Ltd – Matter remanded for quantification of demand.


CCE, Puducherry Vs M/s Tanfac Industries Ltd (Dated: July 30, 2010)

Central Excise – CENVAT Credit – Demand of 10% under Rule 6 of the CENVAT Credit Rules 2004 – When the goods manufactured by the assessee are excisable and the same are cleared to certain categories of customers under exemption Notification, provisions of Rule 6 are not attracted as the rule requires manufacture of two categories of products, one excisable and the other exempted.


M/s Pavai Alloys & Steels (P) Ltd Vs CCE, Salem (Dated: April 12, 2010)

Central Excise – Stay/Dispensation of pre -deposit – Clandestine manufacture and clearance - When an assessee is indulging in illegal manufacturing and clearance, he will obviously not maintain authentic records of such illegal activities - The Tribunal cannot expect the Department to recover and produce authentic records of the assessee's illegal activities - There is a prima facie case against the appellants – Pre-deposit of Rs 2,00,00,000/- ordered.


M/s Bestlite Industries Vs CCE, Kolkata (Dated: March 25, 2010)

Central Excise – Appellate Commissioner's order directing assessee to pre-deposit full amount of duty and penalty without any personal hearing violates principles of natural justice and contrary to Section 35A

Documents

CESTAT RULING · Central Excise – CENVAT Credit – Credit cannot be denied to the appellants on the ground that the supplier had passed on the excess credit when no action was