CESTAT RULING

2012-TIOL-1974-CESTAT-DEL-LB

M/s Burn Standard Co Ltd Vs CCE (Dated : July 25, 2012)

PSU – Government Disputes – clearance by Committee on Disputes – Past cases not to be reopened : The decision taken by the Committee of Disputes is not undone and has not become a nullity. If the contention of the Revenue is accepted, then in all cases, in which the Committee of Disputes had declined permission to prefer appeal/ legal proceedings, during the period from 1994 onwards, can now be reopened. The matters which have been considered and decided by the Committee of Disputes and permission specifically denied cannot be reopened.

2012-TIOL-1973-CESTAT-MUM

Thermolab Scientific Equipments Pvt Ltd Vs CCE (Dated : August 27, 2012)

CX – Rule 16 of CER, 2002 - duty paid laboratory equipment returned to the factory are completely dismantled and useable parts are salvaged and again reused in manufacture of same kind and unusable parts are cleared as scrap - department contending that activity does not amount to manufacture and insisting for reversal of the CENVAT credit taken, in terms of rule 16(2) of CER, 2002 – SCN does not lead to any conclusion that the activity undertaken by the appellant does not amount to manufacture - judgement in the case of Maruti Udyog 2002-TIOL-191-CESTAT-Del appears to be prima facie applicable to the facts of the case - appellant has made out a prima facie case in their favour – Pre-deposit waived and Stay granted: CESTAT [para 6.1]

Also see analysis of the Order

2012-TIOL-1972-CESTAT-MUM

M/s Sandvik Asia Pvt Ltd Vs CCE (Dated : September 20, 2012)

S.4 of CEA, 1944 - Valuation - Related person - M/s Sandvik AB, Sweden is holding company of the applicant firm and M/s Sandvik AB, Sweden and the appellants are having more than 50% of the shares in M/s Walter AG Germany, which in turn holds 99.9% of shares of M/s WTIPL, the customer of the applicant - Drilling tools valued at Rs.4.56 Crores cleared by applicant to M/s WTIPL were sold by M/s WTIPL to their customers for a value of Rs.6.76 Crores - Revenue demanding duty at the sale price at which M/s WTIPL sold the goods - in view of the share holding pattern prima facie the dealing cannot be said to be arms length - Pre-deposit ordered: CESTAT [paras 6 & 7]

2012-TIOL-1971-CESTAT-DEL

Shilpi Cable Technologies Ltd Vs CCE (Dated : March 20, 2012)

Central Excise – Stay / Pre-deposit of Duty – CENVAT – Appellant is manufacturer of RF Feeder cable - Denied CENVAT on cable assembly accessories, which were imported and supplied along with RF Feeder Cable – The plea of the appellant is that cable assembly accessories fall within the definition of 'input' and the Department ought not have denied credit on such accessories – Held that - There is nothing on record to suggest that the customer placed purchase order for feeder cable with the condition that they should be supplied with cable assembly accessories - Prima facie, it cannot be said that supply of cable assembly accessories made by the appellant amount to input service with respect to the feeder cable manufactured and supplied – There is no prima facie case granting input credit to th e appellant – Ordered for pre- deposit of entire demand confirmed (Para 7).

2012-TIOL-1970-CESTAT-KOL

M/s National Plywood Industries Ltd Vs CCE & ST (Dated : September 27, 2012)

COD - Approach of the Applicant/Appellant all along is not bona fide and they are not serious in conclusion of the proceedings – applicant has filed to show sufficient cause for condonation of inordinate delay of 3187 days caused in filing the appeal before Tribunal – miscellaneous application dismissed and consequently appeal also dismissed: CESTAT [paras 12, 13 & 14]

2012-TIOL-1964-CESTAT-KOL

CCE, CC & ST Vs M/s Bhusan Steel Ltd (Dated : September 5, 2012)

HP Diesel Locomotive falling under Chapter 86 is an accessory to the Torpedo Ladle Car used for carrying 300 to 350 MT of molten iron from blast furnace to conarc furnace and then to pig casting machine for manufacture of Iron & Steel Products and hence entitled to CENVAT Credit: CESTAT [paras 5.1 & 5.2]

Also see analysis of the Order 2012-TIOL-1963-CESTAT-DEL

M/s Oswal Woolen Mills Ltd Vs CCE (Dated : May 2, 2012)

Central Excise – Valuation – Clearance of excisable goods to other unit – The appellant paid excise duty as per the transaction value in terms of Rule 4 of Central Excise Valuation Rules 2000, whereas the Department was of the view that the appellant ought to have paid excise duty in terms of Rule 8 and 9 ibid - It is apparent that Rule 4 is the general Rule for valuation of the excisable goods which provides that for the purpose of excise duty, the value of the goods cleared/sold by the assessee shall be the transaction value i.e. the price at which the goods are sold to the buyer - Rule 8 and 9 are in the nature of exception to Rule 4, which deals with the transactions between the assessee and the related party or the transaction in which the assessee resorts to clearance of goods to unrelated buyers through a related party - Since in the instant case, the assessee had cleared goods on the same price to the related as well as unrelated parties, Rule 4 is applicable - The assessee had rightly paid excise duty based upon Rule 4 of Central Excise Valuation Rules, 2000 (Para 6).

2012-TIOL-1962-CESTAT-AHM

M/s Ganga Rasayanie Pvt Ltd Vs CCE (Dated : May 4, 2012)

Central Excise - Stay / Pre-deposit of Duty - Garoil manufactured and cleared without payment of duty for the period from 01.4.2006 to 28.9.2006 by classifying under Tariff heading 27090000 of Central Excise Tariff Act, 1985, in which rate of duty was NIL - Even if the goods were wrongly classified, if they have been accounted for in RG-1 register, whether they can be seized on the presumption that they would also be cleared without payment of duty, may not be correct - Sample of goods was sent for testing and whether the dispute in technical in nature or there was a deliberate intention to evade duty, has to be considered - The goods have been used for manufacture of other goods which were cleared on payment of duty, and entered in to RG-1 register - Prima facie, case has been made out for waiver of pre-deposit by the appellants - Pre-deposit waived (Para 3).

2012-TIOL-1958-CESTAT-AHM

M/ s Polycot Knitters (Unit-II) & Shri R K Dangi Vs CCE (Dated : September 13, 2012)

Central Excise - Exemption Notification - Condition of Non- availment of CENVAT - Non-reversal of CENVAT on exercising option of exemption notification - Demand of duty - The assessee on the date of opting for the exemption Notification No.30/2004- CE, has not availed any Cenvat credit on the inputs which were procured, for manufacture of final products. The credit lying in balance was availed prior to exercise of option to benefit of Notification No.30/2004-CE and was not reversed - However, it is on record that there were no inputs/semi-finished goods lying in stock as on date, when the assessee exercised the option. Hence, the Cenvat credit could not be utilized for any other purpose and has to be considered as lapsed. Benefit of notification No.30/2004-CE is allowed.(Para 6)

2012-TIOL-1953-CESTAT-MUM

M/s Hyt Engg Co Pvt Ltd Vs CCE (Dated : September 05, 2012)

Appellants were aware that no duty was being paid on clearances of optional accessories as the same were bought out items – since CENVAT was availed, the credit ought to have been reversed – it cannot be called a clerical error – similarly clearance of inputs to sister unit without raising any invoice or reversing CENVAT credit is a clear violation of CCR, 2004 – if the same was not noticed by Revenue, the appellant would have continued to clear without reversal of CENVAT credit – revenue neutrality not applicable as there was a clear intention to evade payment of duty on the part of the appellant – Penalties rightly confirmed by Commissioner(A) – Appeals dismissed: CESTAT [paras 6, 7, 8 & 9]

Also see analysis of the Order

2012-TIOL-1952-CESTAT-BANG

CCE Vs M/s Aster Teleservices (P) Ltd (Dated : July 26, 2012)

Central Excise – Stay / Pre-deposit of Duty – Exemption under Notification No.108/1995-C.E dated 28.8.1995 – The plea of the appellant is that the materials sought to be procured by the assessee were not specified under aforesaid exemption notification and hence such materials could not have been procured by following the procedure laid down under the provisions of the Central Excise (Removal of goods at concessional rate of duty for manufacture of excisable goods) Rules, 2001 - There is a valid point in this submission of the appellants - The impugned order is prima facie unsustainable in law – Granted stay till final disposal of the appeal (Para 3).

2012-TIOL-1951-CESTAT-BANG

M/s Kumar's Cotex Ltd Vs CCE (Dated : July 31, 2012) 100% EOU – Pre-deposit - Commissioner (Appeals) directed appellant to pre-deposit Rs.7.5 Lakhs and its functionaries to pre-deposit Rs.75,000/- each in terms of Section 35F of Central Excise Act – On expressing financial hardship in a modification application, Commissioner (Appeals) reduced pre-deposit to Rs.3.75 Lakh - The appellants failed to comply with the revised order - Appeal dismissed – Held that : Ordered for pre-deposit Rs.3.75 lakh so that it constitutes 50% of duty confirmed if appropriated amount of Rs.11,79,922/- is taken into consideration – Ordered to dispose of their appeal on merits without insisting further deposit by MD and Director (Para 4).

2012-TIOL-1950-CESTAT-BANG

Mangalore Refinery And Petrochemicals Ltd Vs CCE (Dated : August 13, 2012)

Central Excise – Stay/Pre-deposit of Duty – CENVAT – Banking and Other Financial Services (BOFS) - Denied CENVAT credit on the ground that the invoices were addressed to the Mumbai Head Office of the appellant, which was not a registered input service distributor - It appears to be purely procedural - It is not in dispute that BOFS covered by the invoices raised on the appellant's Head Office was actually used by the appellant in the manufacture and clearance of their final products - The tax- paid nature of BOFS is also not in dispute - The department has no case that any part of BOFS covered by any given invoice was diverted by the Head Office - Prima facie , the entire quantum of BOFS covered by each invoice in question was used by the appellant - The substantive benefit of CENVAT credit is prima facie admissible to the appellant and the same cannot be denied on minor procedural grounds - Pre-deposit waived (Para 2).

2012-TIOL-1949-CESTAT-BANG

CCE & C Vs M/s Matrix Laboratories Ltd (Dated : July 27, 2012)

Central Excise - National Litigation Policy - Appeal filed by the Revenue against the grant of CENVAT Credit by the Commissioner (Appeals) - The plea of the Respondent is that the disputed amount is less than Rs.2,00,000/- in each appeal and the appeals filed in contravention of the National Litigation Policy - It is not in dispute that, when these appeals were filed, there was no embargo based on monetary limits - It cannot be said that these appeals were filed in contravention of any litigation policy (Para 3).

Central Excise - CENVAT - Credit on Structural Items - Appeal filed by the Revenue against the grant of CENVAT Credit by the Commissioner (Appeals) - T he Commissioner (Appeals) chose to hold the various structural items to be ‘Cenvatable' capital goods on the basis of certain photographs produced by the assessee - The method adopted by the appellate authority cannot be countenanced inasmuch as a photograph per se has no evidentiary value - Where the assessee claimed to have used the structural items to fabricate "technological structures" which were claimed to be ‘Cenvatable' capital goods, the appellate authority ought to have arranged physical inspection of such structures by competent officers of central excise and should have taken a view only after considering the inspection report - This was not done in the case - Matter remanded for fresh decision (Para 4). 2012-TIOL-1945-CESTAT-DEL

M/s MRJ Steels Pvt Ltd Vs CCE & ST (Dated : December 19, 2012)

CESTAT - Bar shall not be caused hardship by the Registry by a set of procedure not prescribed by Judicial Manual: If there is any defect in appeal, in terms of the procedure prescribed by Rule 4.03 of Chapter 4 of Judicial Manual, that defect may be intimated to the appellant for curing the same without compulsion since curable defects do not take away right to appeal. Therefore, such valuable right should not be casually denied on flimsy ground of technicalities without scrutiny according to procedure prescribed by Judicial Manual.Bar is an integral part of justice delivery system. Members of the Bar shall not be caused hardship by the Registry by a set of procedure not prescribed by Judicial Manual. Registry is to act according to the procedure laid down in Chapter-4 of Judicial Manual and prevent further discontent of Bar.

2012-TIOL-1944-CESTAT-DEL

M/s Elpro Engineering Vs CCE (Dated : September 6, 2012)

Central Excise - Exemption Notification - Goods cleared duty free on the basis of Forged Certificates - Demand - Stay / Dispensation of pre-deposit - Admittedly, the assessee cleared excisable goods without payment of excise duty under the exemption notification on the strength of the requisite certificate issued by the Executive Head of the Project Implementing Authority purportedly countersigned by the Joint Secretary to the Government of India in the Ministry of Finance. The assessee was not aware of forgery of the signature of the Joint Secretary. It is also not the case of the Department that the assessee was in conspiracy with the receiver of goods. The receiver of the goods has deposited an amount approximately equal to the central excise duty involved. It is prima-facie clear that duty amount has already been paid to the Department and the interest of the Revenue is secured. Stay granted. (Para 5)

2012-TIOL-1943-CESTAT-MAD

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

Central Excise - Manufacture of dutiable and exempted goods - Demand under Rule 6 on Sludge arising during the course of manufacture of Paper and Paper Boards - The appellants are not required to reverse the credit attributable to the Sludge. 2012-TIOL-1942-CESTAT-MAD

M/s Forbes & Company Ltd Vs CCE (Dated : July 24, 2012)

Central Excise – Stay/Dispensation of pre-deposit – Manufactured goods cleared on stock transfer basis to the other unit on reversal of CENVAT Credit of CVD availed – No prima facie case has been made out for waiver of pre-deposit as the applicant are required to pay duty as per the ratio of Ujagar Prints case, i.e., cost of production plus 10%/15% profit – 50% of the duty demanded ordered to be deposited.

2012-TIOL-1941-CESTAT-MAD

M/s JSW Steels Ltd Vs CCE (Dated : July 25, 2012)

Central Excise – Stay/Dispensation of pre-deposit – Imported goods cleared from one unit to another unit of the appellant – CENVAT Credit denied on the ground that the value shown in commercial invoice was less than the value in the Bill of Entry – Prima facie, the appellants are entitled for total duty paid on the Bill of Entry – Applicants have made out a prima facie case for full waiver of pre-deposit.

2012-TIOL-1933-CESTAT-KOL

M/s Steel Fittings Mfg Co Ltd Vs CCE (Dated : February 9, 2012)

Central Excise – Clandestine manufacture and clearances - The Department's case rests on the evidence of entries made in the private registers/note books, retrieved/seized from the factory premises of the applicant and various statements - Prima facie, the adjudicating authority confirmed the demand on the basis of the private records and as well as based on the statements of persons concerned - In nutshell, this is a case of appreciation of evidences advanced by both the sides and it is not a case of no evidence - Prima facie, the applicant could not made out a case for total waiver of duty and penalty confirmed against them – Ordered for pre-deposit of 25% of the amount of duty confirmed (Para 5).

2012-TIOL-1932-CESTAT-MAD M/s Sri Ranganathar Valves Pvt Ltd Vs CCE (Dated : June 27, 2012)

Central Excise – CENVAT Credit – Credit on Fumigation charges and Testing and Inspection Agency Charges is admissible in view of the precedent decisions of the Tribunal.

2012-TIOL-1931-CESTAT-DEL

Honda Motor Cycles & Scooter India Pvt Ltd Vs CCE (Dated : April 24, 2012)

Central Excise – CENVAT – Eligibility of CENVAT Credit on Tool Kit and First aid Kit sold along with two wheelers as ‘Input' - Undisputedly, the tool kit and first aid kit are sold by the appellant along with final product and their cost is included in the same - The appellant had supplied the tool kit and first aid kit to the buyers as per statutory requirements under Central Motor Vehicle Rules, 1989 as accessories to be used in relation to the manufacture of vehicle – Hence, both 'tool kit' and 'first aid kit' are squarely covered by the definition of 'input' given under Section 2(k)(i) of Cenvat Credit Rules and that the appellant had rightly availed the Cenvat credit (Para 10 & 11).

2012-TIOL-1930-CESTAT-BANG

M/s Vectra Auto Components Pvt Ltd Vs CCE (Dated : August 17, 2012)

Central Excise – Stay / Pre-deposit of Duty - CENVAT – Denied CENVAT Credit paid on Capital Goods on the ground that the benefit of depreciation of value of the capital goods was simultaneously availed under the Income Tax Act - There is no valid documentary evidence of the appellant having relinquished claim of depreciation under the Income Tax Act - No copy of any revised Income Tax assessment order is available on record – Ordered for pre-deposit of Duty (Para 3 & 4).

2012-TIOL-1924-CESTAT-MUM

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

Revenue seeks adjournment on the ground that it wants to engage a Special Counsel – adjournments sought on earlier dates also – in the interest of justice request for adjournment is accepted with a direction that on the next date of hearing if Revenue is unable to argue the matter, the matter shall be decided on merits: CESTAT [para 2] 2012-TIOL-1923-CESTAT-DEL

Sun Pharmaceutical Industries Vs CCE (Dated : September 1, 2012)

Central Excise – Stay/Dispensation of pre-deposit – Exemption under Notification No 56/2002 CE dated 14.11.2002 to goods manufactured in J&K – Appellant availed CENVAT Credit of Furnace Oil received during the period from April 2005 to March 2009 only in the month of August 2009, resulting in excess payment of duty in PLA and hence excess refund of duty paid in PLA.

Held by majority: There was failure to fulfill mandatory condition of the Notification by the appellant when it failed to use the Modvat credit available to it during tax holiday period - Inadvertent mistake plea of appellant is certainly a misplaced sympathy to sway away Tribunal towards sympathetic consideration - Claim for Modvat credit was within the exclusive knowledge of appellant in view of its past experience of several years being engaged in the line of manufacture. Failure of appellant to set off Modvat credit diminished its right to exemption (refund) and the plea of revenue neutrality is baseless for non- fulfilment of statutory obligation – Pre-deposit ordered.

Also see analysis of the Order

2012-TIOL-1922-CESTAT-DEL

CCE Vs M/s North Sun Enterprises Industrial Estate (Dated : July 4, 2012)

Central Excise – Manufacture – The department was of the view that Steel Tubular Poles produced and cleared by the respondent were not the result of manufacturing process and proposed to deny CENVAT credit availed on inputs used for production of such goods - After the processing pipe/tube a distinct product comes into being which is known in the commercial parlance as steel tubular pole which has character and was distinct from MS black Tube/pipes – The process employed by the respondents amount to manufacture and as such no merit in the plea of the Department that steel tubular poles cleared on payment of duty by the respective assessees were not leviable with excise duty (Para 10).

Central Excise – Manufacture – Even otherwise if for the sake of argument it is assumed that the final products cleared by the manufacturing appellants emerged from a process not amounting to manufacture then also it is difficult to sustain the impugned order because undisputedly, the appellants used duty paid inputs for the production of their final product which was cleared to the customers on payment of excise duty - The department accepted the excise duty on the final product without any protest nor the appellants were informed that their final products was not subject to excise duty as it emerged from the process not amounting to manufacture as defined under Section 2(f) of the Central Excise Act - The department having accepted the excise duty on the final product cannot be permitted to deny Cenvat credit on the inputs used for the manufacture of the final product on such a technical plea - If such an argument is allowed to sustain it would negate the entire object of the Cenvat credit scheme which has been put in place with a view to protect the assessee from double taxation (Para 11). 2012-TIOL-1921-CESTAT-MUM

M/s Sandoz Pvt Ltd Vs CCE (Dated : September14, 2012)

CENVAT credit taken on HDPE pallets, office furniture, ceramic tapes, FRP linings, services of repair and maintenance, security agency etc. availed for housing colony - credit reversed when departmental officers pointed out that it was wrongly availed - as the appellant is not disputing tax liability, they cannot dispute the liability to pay interest as interest is a consequential liability - pre-deposit ordered of interest and on payment thereof pre-deposit of penalty waived: CESTAT [para 7]

2012-TIOL-1920-CESTAT-BANG

M/s Steel Complex Ltd Vs CCE (Dated : June 18, 2012)

Central Excise – Penalty & Interest – The Commissioner (Appeals) has upheld the applicability of provisions of Section 11AC of the Act - It is not in dispute that the appellants have raised different set of invoices indicating higher amounts while preparing Central Excise invoices indicating lower amounts - In these circumstances, the view taken by the Commissioner (Appeals) that Section 11AC of the Act is attracted, is legal – There is no reason to set aside the penalty or reduce the penalty further -

As the mis-declaration of price by adopting two sets of invoices is upheld, the question of waiver of interest invoking provisions under Section 11AB(2) does not arise (Para 5 & 6).

2012-TIOL-1915-CESTAT-MUM

Shree Vithal Ssk Ltd Vs CCE (Dated : June 18, 2012)

CENVAT – Rule 6 of CCR, 2004 - Applicant engaged in manufacture of sugar and molasses – during manufacture, bagasse and press mud comes into existence and which is cleared without payment of duty – revenue invoking provisions of rule 6(3) of CCR, 2004 and demanding 5%/10% of price of exempted goods – applicant has already paid Rs.14.85 lakhs against demand of Rs.36 lakhs - in view of decision in Indian Potash Ltd. (2012-TIOL-1402-CESTAT-Del) wherein a similar demand was set aside, pre-deposit of balance dues waived and stay granted: CESTAT [para 5]

2012-TIOL-1913-CESTAT-KOL M/s Sova Ispat Alloys Ltd Vs CCE (Dated : June 27, 2012)

Central Excise - Process not amounting to Manufacture - Eligibility of CENVAT - Input Credit - Stay / Dispensation of pre-deposit - The assessee has carried out the process of grinding, sizing and packing of Silico Manganese. Though the process did not amount to manufacture they have paid duty which has been duly accepted by the department. Once the duty was duly discharged and accepted by the department therefore CENVAT Credit cannot be denied on the input Silico Manganese. Prima facie case made out for grant of stay. (Para 5)

2012-TIOL-1911-CESTAT-MUM

Sriroz Consultants Pvt Ltd Vs CCE (Dated : March 27, 2012)

CE – allegation that applicant is manufacturing and clearing “green houses” and that the same is classifiable under ch. Hdg. 94060019 and chargeable to Cex. Duty – in the case of the applicant's competitor Srihari Greenhouse Pvt. Ltd . (2012-TIOL-349- CESTAT-MUM) , CESTAT has granted unconditional waiver of pre-deposit and granted a Stay – since Commr(A) has not decided the issue but dismissed appeal for non- compliance with order of pre-deposit, order set aside and matter remanded: CESTAT [para 7]

2012-TIOL-1908-CESTAT-MUM

CCE Vs M/s Thermax Limited (Dated : September 13, 2012)

CENVAT credit availed on bought out items which allegedly were not required for final product – denial of credit – final product exported along with bought out items on payment of duty - whether rebate admissible on these bought out items – rebate claim to be kept pending till appeal is disposed of in the matter of CENVAT credit: CESTAT [para 5]

Also see analysis of the Order

2012-TIOL-1907-CESTAT-MAD

M/s EID Parry Ltd Vs CCE (Dated : July 25, 2012)

Central Excise – Stay/Dispensation of pre-deposit - 100% EOU – Benefit of exemption under Notification No 23/2003-CE dated 31.03.2003 denied on the ground that imported Paraffin wax had been used in the manufacture of goods cleared in DTA – Since Paraffin wax was forming part of the final product cleared in DTA, no prima facie case has been made out for waiver of pre-deposit – 20% of the duty demanded ordered to be pre-deposited.

2012-TIOL-1906-CESTAT-DEL

M/s DSM Sugar Asmoli Vs CCE (Dated : May 16, 2012)

Central Excise – Stay / Pre-deposit of Duty – Admissibility of CENVAT Credit on Capital Goods on the strength of photo copies / extra copies of the Invoices - This is the second round of litigation and in first round of litigation when the matter had come up to the Tribunal, the Tribunal while remanding the matter had directed the appellant to deposit the amounts of Rs. 2,01,711/- and Rs. 67,327/- which had been deposited and are still with the department - In view of this, there is no necessity to require the pre-deposit of any further amount – In respect of other stay applications, prima facie it cannot be said that the appellant have a prima facie case as admittedly the verification regarding receipt of the goods covered by the invoices, on the basis of Cenvat credit had been taken, had not been done - the appellant are directed to deposit 50% of the Cenvat credit demand (Para 4).

2012-TIOL-1905-CESTAT-DEL

M/s Diamond Cements Ltd Vs CCE (Dated : May 23, 2012)

Central Excise - Demand - SCN issued on the ground that the goods in question were being fabricated by the contractors in the appellants' premises out of the raw material supplied by the appellants and that the contractors were only a facade and dummy units - The appellants are entitled to the benefit of Notification No.281/86 dt. 24.04.86 which provides exemption from duty to all the excisable goods manufactured in workshop within a factory and intended for use in the said factory or in any other factory of the same manufacturer, for repair & maintenance of machinery installed therein - The appellants have taken a categorical stand before the authorities below that the goods in question were used by them for repair & maintenance of the factory_ - The statements of various contractors revealed that the said goods were meant for installation and erection in the factory premises itself - There is nothing in the Revenue's case to show that the said goods were manufactured by them for clearance from the factory - In any case, Notification No.217/86, dt 02.04.86 which grants exemption to the goods manufactured in the factory and used in the factory, is also available to the appellants - The denial of the same on the ground that the said Notification excludes machines, machineries, plants, equipments, appliances does not hold good in as much as the items in questions are structural and not machines or plant and equipment .

2012-TIOL-1904-CESTAT-MAD

M/s Deccan Alloys Pvt Ltd Vs CCE (Dated : July 19, 2012) Central Excise – Stay/Dispensation of pre-deposit – Demand of 8% and 10% on goods cleared by a job worker under Notification No 214/86 CE - Prima facie, assessee is not required to reverse the CENVAT Credit on inputs used in job work goods – Pre-deposit waived.

2012-TIOL-1896-CESTAT-MUM

CCE, CC Vs M/s Jainson Products (Dated : August 22, 2012)

Herbal Shampoo is classifiable under Chapter 33 of the CETA, 1985 - order set aside and Revenue appeal allowed [para 4]

2012-TIOL-1895-CESTAT-MUM

CCE Vs Virtual Computers Ltd (Dated : June 22, 2012)

Add-on card and motherboard cannot be considered as automatic data processing machines - same are parts and accessories suitable for use with machine falling under heading 84.71 of tariff - correctly classifiable under heading 84.73 of the CETA, 1985 - order of Commissioner(A) set aside and Revenue appeal allowed: CESTAT [para 6]

2012-TIOL-1894-CESTAT-MUM

M/s Owens Corning (India) Pvt Ltd Vs CCE (Dated : September 20, 2012)

CENVAT - applicant availing credit of 50% of the duty paid on Bushings and the balance 50% credit of CVD was availed in the subsequent financial year - Revenue view is that since the bushings were re-exported for remaking, the applicants are not entitled for the CENVAT credit of Rs.8.26 Crores - goods in question are ‘components' and the conditions envisaged in rule 4(2)(b) of the CCR, 2004 that the goods should be in possession of the manufacturer is not applicable to ‘components' but only to capital goods - Strong prima facie case for complete waiver of pre-deposit - pre- deposit waived and Stay granted: CESTAT [paras 4 & 5]

2012-TIOL-1893-CESTAT-BANG

M/s VBC Industries Ltd Vs CC & CE (Dated : June 19, 2012)

Central Excise – Demand – Chargeability of duty on Treated Water – Followed the decision of M/s Hindustan Coca-Cola Beverages (P) Ltd. – Treated water cleared to vending machines through canisters/stainless steel tanks for producing aerated beverages not liable to excise duty - Demands set aside (Para 3). 2012-TIOL-1889-CESTAT-MUM

CCE Vs M/s Coca Cola India Pvt Ltd (Dated : September 26, 2012)

Since appeal already disposed of application for early hearing filed by Revenue dismissed - Concerned Officer directed to avoid such practice in future - such application filed in a usual manner without verifying records not only increases work of department but also of the Tribunal - Application dismissed: CESTAT.

2012-TIOL-1888-CESTAT-MUM

Deepak Fertilizers And Petrochemicals Corpn Ltd Vs CCE (Dated : November 12, 2012)

CENVAT credit - Services utilized for erection and installation of Ammonia Storage Tank at port - Rule 4(7) of CCR, 2004 is to be read with definition of input service under Rule 2(l) of the CENVAT Credit Rules - input services used in relation to storage of inputs outside the factory will not be eligible for the credit – Demand of Rs.2.78 Crores upheld and appeal dismissed: CESTAT [paras 6 to 15]

Also see analysis of the Order

2012-TIOL-1887-CESTAT-BANG

M/s BEML Vs CCE (Dated : July 23, 2012)

Central Excise – Demand – SCN issued on the ground the values as per the ER1 returns for the financial years 2003-04 and 2004-05 were widely varying from stock transfer values recorded in the trial Balance Sheets/Balance Sheets for the respective years - The defence submission in respect of transfer of materials from KGF complex to Bangalore complex and use of the said material for manufacture of vehicles which were ultimately supplied to defence has not been made with clarity and precision - Now, an attempt is made that whatever was sent from KGF has been utilized in the Tatra vehicles and ultimately supplied to defence - This is a question of fact which requires to be decided preferably at the original stage - Set aside the order of the Commissioner insofar as the same relates to confirmation of demand of Rs. 71,79,173/- and remand the matter for fresh consideration (Para 6).

2012-TIOL-1886-CESTAT-KOL CCE Vs M/s Beliss India Ltd (Dated : April 10, 2012)

Central Excise - Classification - Respondent classified "Governing System" under Chapter Heading 84.79, and the Department issued a SCN by classifying the said goods under 84.83 - Original authority confirmed the SCN - The Commissioner (Appeals) set aside the O-I-O on the ground that classification cannot be re-opened, which is not sustainable as per law - However, the Commissioner (Appeals) has not given any finding with regard to the classification of the goods on its merits – Hence, the same is required to be examined – Matter remanded to the Commissioner (Appeals) for deciding the classification of the goods (Para 6.4).

2012-TIOL-1885-CESTAT-MAD

M/s Bharat Heavy Electricals Ltd Vs CCE (Dated : July 19, 2012)

Central Excise – Stay/Dispensation of pre-deposit – Demand of duty on goods cleared under Notification No 6/2006 CE read with Notification No 21/2002 Cus on the ground the Power Plant for which the goods were supplied is not a new plant, but only expansion of the existing plants – In view of the certificate issued by the Joint Secretary, Ministry of Power clearly certifying the plant to whom applicants supplied the impugned goods are intended for separate and new Mega Power Projects, pre- deposit waived.

2012-TIOL-1884-CESTAT-MAD

CCE Vs M/s B N Agro Foods & Co (Dated : August 1, 2012)

Central Excise - Small Scale Exemption - Rural Area - Only authority to verify whether a particular area of land falls under rural area or urban area is the Tahsildar of that area - When the Tahsildar of the area concerned certified to the effect that the factory falls under rural area and same has also not been challenged by the Revenue before any of the Revenue authorities, Tribunal is bound by the certificate issued by the Tahsildar concerned - Contention of revenue that it should be classified as "Urban Area" according to Section 6A of the Tamil Nadu Urban Land Tax Act is not acceptable.

2012-TIOL-1873-CESTAT-AHM

M/s Sujal Dye Chem Industries Vs CCE (Dated : May 11, 2012)

Central Excise - CENVAT – Eligibility of CENVAT credit on Professional Fees for conducting audit of the appellant's project and preparation of report - Revenue issued SCN on the ground that the service received has no nexus with the manufacture at all - The services obtained for the purpose of conducting audit of the process and change of raw material suitably and the same have been presented to GTZ to receive the grant so that the company can phase out the process, which cause depletion of ozone in the atmosphere - This was done for the purpose of implementation of provisions of relevant rules and as a part of National Plan -. Even though the Service Tax has been paid for the purpose of obtaining services of the firm for preparation of the report and to receive the amount, the whole activity has a direct nexus with the manufacture and manufacturing process and is with the objective of reduction of emission of Ozone Depleting Substances - The stand taken by the Revenue that the service has nothing to do with the manufacturing process, is not correct (Para 3 & 4).

2012-TIOL-1872-CESTAT-AHM

Shri Girish B Mishra Vs CCE (Dated : May 15, 2012)

Central Excise - Central Excise (Compounding of offences) Rules, 2005 - Order passed by Chief Commissioner - Whether appealable before Tribunal? - Orders passed by Chief Commissioner under Compounding of Offences Rules is not an administrative order but a quasi judicial order. Although there is no specific provision in the Act regarding appeal against the order passed by the Chief Commissioner, appeal lies with the Tribunal. (Para 4 & 6)

Central Excise (Compounding of offences) Rules, 2005 - Contradictions in Application - Effect of - The Chief Commissioner has recorded that there are contradictions in the submissions made regarding the assessee's role in the offence, viz., during investigation the assessee the assessee had stated that he had the knowledge about clandestine clearance; in reply to the show cause notice the assessee denied the charges; and in the application for compounding of offence the assessee stated that he was acting solely under the directions of the Managing Director of the firm.Also pendency of ROM application in Tribunal was not disclosed.

HELD - The common thread running through the submissions of the assessee is that he acted as per the directions of the Managing Director. Hence, it cannot be said that there was deliberate suppression of facts or non-disclosure of material facts. Non- disclosure of the pendency of ROM does benefit the assessee. Further, payment of penalty under protest has no value as the order of the Tribunal has already attained finality. Dismissal of application on these grounds set aside. Matter remanded for passing orders afresh. (Para 18, 19 & 20)

Suppression of facts - Effect of - When the suppression of facts has no bearing on the relief sought and is not material to the case, application not to be dismissed. (Para 13, 14 & 15)

2012-TIOL-1871-CESTAT-MUM

Supreme Petrochem Ltd Vs CCE (Dated : August 27, 2012)

CE - Rebate - It was highly inappropriate on the part of the revenue authorities to enforce recovery by appropriating the rebate sanctioned against the demand confirmed when stay had been granted by Tribunal - even in case of appeal pending before the Tribunal in a number of judicial pronouncements it is held that no coercive action should be taken to recover demands - Deputy Commissioner has shown complete disregard and contempt to the orders of this Tribunal - Amounts to be refunded forthwith to the appellant and Registry directed to forward copy of the order to Chairman, CBEC for appropriate action - appeal allowed with consequential relief: CESTAT [para 6]

Also see analysis of the Order

2012-TIOL-1870-CESTAT-DEL

M/s Saraswati Engineering Ltd Vs CCE (Dated : May 25, 2012)

Central Excise – Stay / Pre-deposit of Duty – CENVAT – Taking of suo motu CENVAT credit earlier reversed as per the direction of the officers – Followed the decision of BDH Industries (2008-TIOL-1211-CESTAT-MUM-LB) - There is no provision in Central Excise Act and Rules allowing suo motu taking of credit – Ordered for pre-deposit of entire duty with interest and penalty (Para 6 & 8).

2012-TIOL-1868-CESTAT-MUM

Mars International Vs CCE (Dated : October 5, 2012)

Central Excise - Rebate - appropriation of sanctioned rebate against dues to the department - appropriation when stay application is pending before Tribunal is not sustainable in Law: Deputy Commissioner while sanctioning the rebate, appropriated the same under Section 11 of the Central Excise Act, 1944 towards dues pending from the appellant without putting the appellants to notice. The appropriation of the amounts when the appellant's stay application was pending before the Tribunal is not sustainable in law.

Also see analysis of the Order

2012-TIOL-1866-CESTAT-AHM

Shri Rajkot Lodhika Sahakari Kharid Vechan Sangh Ltd Vs CCE (Dated : September 6, 2012)

Soap stock which arises/emerges during refining of the edible oil is a waste and not a by-product - there is nothing on record to show that the appellant-assessee had cleared such soap stock in the market as a final product – in fact, the soap stock is further processed to yield acid oil which is cleared as final product by availing benefit of notification – order confirming duty demand on soap stock is set aside – Appeal allowed: CESTAT [para 6] 2012-TIOL-1865-CESTAT-MUM

Shri Benu Ramesh Agarwal Vs CCE (Dated : March 29, 2012)

Any person aggrieved by the order passed by the adjudicating authority has to file an appeal – duty demanded from firm and penalties imposed on firm as well as partner - partnership firm filing appeal before Commissioner(A) and partner signing appeal memo but no separate appeal filed by partner – appeal filed by firm cannot be considered as joint appeal – appeal not maintainable: CESTAT [para 6]

2012-TIOL-1857-CESTAT-MUM

Nitco Ltd Vs CCE (Dated : June 1, 2012)

CENVAT - appellant availed CENVAT credit on GTA services during the period January 2005 to March 2006 - upon initiation of investigation by department credit reversed - SCN issued for denial of credit and which was upheld by adjudicating authority but set aside by Commissioner(A) - pursuant thereto appellant took credit in their books of accounts - Revenue appeal before CESTAT was also dismissed - proceeding initiated against appellant for taking suo motu credit which order was also upheld by lower authority hence appeal before CESTAT - in the facts of the case it cannot be said that it was a suo motu action on the part of the appellant but an action as directed by lower appellate authority which was reconfirmed by Tribunal - there is absolutely nothing wrong on the part of the appellant in taking CENVAT credit - order set aside and appeal allowed with consequential relief: CESTAT [para 4]

2012-TIOL-1856-CESTAT-BANG

CCE Vs M/s Natco Pharma Ltd (Dated : March 13, 2012)

Central Excise – Manufacture – P or P Medicaments – Small quantities of retail packs of various medicines are taken from different cartons received from the other unit of the respondent and packed into a single carton and supplied to consumer - In the present case, the goods received by the respondent from their other unit were already marketable and nothing further was done by the respondent - Packing of assorted medicaments into a single carton and writing the names and quantities of such medicaments over the carton were done as per the requirements of the customer and for their convenience - The Chapter Note 6 to Chapter 30 is not relevant to this context at all – Section 2(f) of Central Excise Act, 1944 (Para 4 & 5).

2012-TIOL-1849-CESTAT-DEL M/s Hindustan Zinc Ltd Vs CCE (Dated : August 16, 2012)

CENVAT - Captive mines have to be considered as part of the factory only - Tyres get used in the process of handling raw materials which is an integral part of manufacturing process - nothing in the definition of "capital goods" or "inputs" provides for explicitly excluding tyres from either of the definitions - Revenue has not advanced any argument that tyres are being accounted as capital assets and hence it cannot be considered as inputs - CENVAT Credit is available on tyres of Low Profile Dump Truck (LPDT) used by the appellant in mines: CESTAT [paras 13, 14 & 15]

Also see analysis of the Order

2012-TIOL-1848-CESTAT-BANG

M/s Kamakshi Cements Pvt Ltd Vs CCE (Dated : July 2, 2012)

Central Excise - Pre-deposit of Duty - Commissioner (Appeals) directed appellant to pre-deposit 50% of the duty confirmed by Original Authority in terms of Section 35F of Central Excise Act - The appeal was dismissed on the sole ground that the appelalns having failed to comply with pre-depsoit - Held that : On perusal of records Tribunal could not discern a strong prima facie case and found the limitation aspect is also debatable - Ordered for pre-deposit 25% of the duty amount to enable the lower appellate authority to dispose of their appeal on merits (Para 3).

2012-TIOL-1847-CESTAT-BANG

M/s Pancharatna Metal Products Vs CCE (Dated : August 8, 2012)

Central Excise – Stay / Pre-deposit of Duty – Valuation - The dispute relates to valuation of goods cleared for captive consumption as to whether the same should under Rule 4 or under Rule 8 of the Valuation Rules, 2000 - Appellant submits that the valuation under Rule 8 is applicable only when the entire clearances are made to captive consumption and not when there are independent sales at the factory gate – Followed the Tribunal's Larger Bench in the case of Ispat Industries Ltd . ( 2007-TIOL- 245-CESTAT-MUM-LB ) - Rule 8 is applicable only when the entire clearances are made to captive consumption and not when there are independent sales at the factory gate – Waived pre-deposit (Para 5).

2012-TIOL-1846-CESTAT-BANG

M/s Rajashri Foods Pvt Ltd Vs CCE (Dated : June 12, 2012) Central Excise – Stay / Pre-deposit of Duty – Demand – Notification No.67/1995-C.E dated 16.03.1995 - Duty demand is on the intermediate product i.e. corrugated boxes used as packing material for the final products (biscuits), which were exempted during the said period - prima facie case for the appellant - The appellant was not taking CENVAT credit on Kraft paper (input) during the period of dispute and not manufacturing corrugated boxes - The orders passed by the lower authorities have not disclosed convincing grounds for construing the packing materials as “intermediate” in the process of manufacture of biscuits and demanding duty on such material - considering the small amount of duty involved in the case pre-deposit waived (Para 1).

2012-TIOL-1841-CESTAT-BANG

M/s JMC Projects (India) Ltd Vs CCE (Dated : July 25, 2012)

Central Excise – Demand - Pre-stressed concrete girders/kerbs manufactured at specified yard and transferred to the site to be used in Flyover - the appellant company is entitled to the benefit of Notification No.1/2011 C.E. (N.T.) dated 17.2.2011 which granted total exemption from payment of duty of excise on "goods manufactured at site of construction for use in construction work at such site" inasmuch as the girders/kerbs were admittedly manufactured at a site proximate to the site of construction of flyover – Followed the decisions in the cases of CEC-SOMA ( 2012-TIOL-525-CESTAT-DEL ) and CP Meier ( 2011-TIOL-899-HC-DEL-CX ) – Appeals allowed (Para 4).

2012-TIOL-1840-CESTAT-BANG

CCE Vs M/s India Cements Ltd (Dated : August 10, 2012)

Central Excise – CENVAT – Denied CENVAT Credit on G.C. Sheets/G.P. Sheets which were claimed to be components/spares/accessories of the cement mill by the original authority – Allowed CENVAT Credit by the Commissioner (Appeals) – Held that : The fundamental question to be settled in this case is on a fact and the same is as to the manner of use of the G.C./G.P. Sheets - The asseessee merely stated that the sheets were capital goods in terms of rule 2(a)(A)(iii) of the CENVAT Credit Rules 2004 - It was not enough for adjudicating authority to decide whether the sheets would qualify to be capital goods under the above rule - Nevertheless, a finding was recorded in the O-I-O to the effect that the sheets had been used for replacing of the roof over the cement mill - It is not clear whether the adjudicating authority inspected the factory to record such finding - The whole story changed before the first appellate authority, when the assessee made a different factual plea which was to the effect that the sheets had been used in the Kiln Feed GCT and Kiln ESP Gas Dedusting and also for increasing the storage space in the Storage Yard - This plea of the party, notwithstanding, the appellate authority finalized its finding thus: “the impugned goods are used in the factory for the purpose of repair and maintenance of capital goods.” - The basis of this finding is not forthcoming and it is not possible to identify any nexus between such finding and the case law discussed in the impugned order - Suffice it to say that both the orders are liable to be set aside – Matter remanded for fresh consideration (Para 5 & 6). 2012-TIOL-1839-CESTAT-BANG

M/s Hindustan Machine Tools Ltd Vs CCE (Dated : July 31, 2012)

Central Excise – Stay/Pre-deposit of Tax – CENVAT – Denial of CENVAT credit on Slow/Non-moving inventory in the Books of Accounts - The appellants retrieved significant percentage of quantity of inputs for which provision was made for subsequent use, it may not be a case of “write off fully” attracting the provisions of Rule 3(5B) of CENVAT Credit Rules – Pre-deposit waived (Para 6).

2012-TIOL-1838-CESTAT-BANG

M/s Binjrajka Steel Tubes Ltd Vs CCE (Dated : July 31, 2012)

Central Excise – Stay / Pre-deposit of Duty – Job Work – Benefit of Notification No.214/86-C.E dated 25.3.1986 – SCN issued on the ground that the supplier did not have a factory capable of manufacturing any final product and therefore the appellant could not have availed the benefit of Notification No.214/86-CE when they cleared the final products manufactured by them on job work basis – Held that : There is no commission/omission attributable to the appellant which made them ineligible for the benefit of Notification No.214/86-CE - If there is any failure, it is at the end of the supplier and it is not known how the supplier having no factory of his own has been allowed to register as a manufacturer under Central Excise Law - Prima facie, the action taken against the appellant may not be justified (Para 3 & 4).

2012-TIOL-1832-CESTAT-MUM

Mirc Electronics Ltd Vs CCE (Dated : September 24 2012)

CENVAT – Rule 6 of CCR, 2004 - Since the applicant has not taken CENVAT credit on input services attributable to trading activity, they are covered under rule 6(1) of the CCR, 2004 and not rule 6(2) of the CCR, 2004 and hence are not liable to pay 10%/5% of the value of the traded goods – Pre-deposit of Rs.298 Crores & equivalent penalty waived & Stay granted: CESTAT [paras 10 & 11]

Also see analysis of the Order

2012-TIOL-1831-CESTAT-MUM Laxmi Board & Paper Mills Ltd Vs CCE (Dated : September 27 2012)

Applicants importing waste paper on payment of appropriate CVD which is availed as CENVAT credit - revenue demanding reversal of CENVAT credit taken on 770.369 MT received short - in view of the huge shortages, prima facie applicants have not made out a case for total waiver of duty - pre-deposit ordered: CESTAT [para 6]

2012-TIOL-1830-CESTAT-KOL

CCE Vs M/s Bharat Petroleum Corporation Ltd (Dated : October 28 2012)

Central Excise – Penalty – Suppression of fact - The contention of the Revenue is that there was suppression of fact regarding the valuation of goods under Section 4 of C.E Act, 1944 from 14/01/07 to 30/11/07 which resulted in under valuation of the goods - The contention of the respondent is that they were not aware of the change in the provisions of law at the material time and there was no suppression of fact with intent to evade payment of duty on their part nor the department could bring out the same – Held that : There was no suppression of fact with intent to evade duty - The Department could not bring out anything contrary - Commissioner (Appeal) has given cogent findings – No reason to interfere with the Commissioner (Appeals) order (Para 5).

2012-TIOL-1829-CESTAT-DEL

M/s AMP Products Vs CCE & CC (Dated : May 31, 2012)

Central Excise - Section 3A - Pan Masala Packing Machines Rules - Capacity Determination - Miscellaneous Application on Stay Order - The Tribunal had ordered pre-deposit of 8% of the total demand to hear the appeal. The assessee claims that during the hearing lower amount of pre-deposit was directed. Plea under Rule 8 of the Pan Masala Packing Machine Rules was not considered while determining the amount of pre-deposit although there was a direction in this regard by the Hon'ble High Court.

HELD - Right of appeal is pre-conditioned by pre-deposit under section 35F of the Act. As the balance of convenience did not tilt in favour of assessee heavily, 8% of total demand ordered as pre-deposit. Assessee is under mis-conception that lower pre-deposit was ordered during hearing. According to proviso to Rule 8, in case a manufacturer commences manufacturing of goods of a new retail sale price during a month on an existing machine, it shall be deemed to be an addition in the number of operating packing machine for the month. This proviso does not run counter to the scheme of levy when different goods of different description and nature as well as composition or same goods of different RSPs are packed by an existing machine to provide basis of levy since factor for levy is machine. Quantum of pre-deposit ordered is proper. (Para 5.2 & 5.8) 2012-TIOL-1819-CESTAT-MAD

CCE Vs M/s Wabco Tvs (India) Ltd (Dated : July 13, 2012)

Central Excise – CENVAT Credit – Clearance of goods to a unit in SEZ without reversal of input credit – Commissioner (Appeals) has taken a right decision by holding that the clearances are export of dutiable goods - Revenue appeal has no merit in view of the Tribunal's order in case of M/s Sujana Metal Products Ltd.

2012-TIOL-1818-CESTAT-BANG

M/s Thermo Cables Ltd Vs CC&CE (Dated : July 2, 2012)

Central Excise - Stay / Pre-deposit of duty - clearance of excisable goods under international competitive bidding (ICB) in terms of Notification No. 6/2006-CE dt. 01/03/2006 - Department denied the benefit of exemption on the ground that the appellants were manufacturing both dutiable and exempted final products (supplies made under ICB) - Prima facie, when goods are cleared without payment of duty under Notification No.6/2006-CE, the Rule 6(6) of CCR stipulates that provisions of sub-rules (1), (2), (3) and (4) shall not be applicable - Hence the requirements of maintenance of separate accounts of inputs going into the manufacture of exempted products etc. do not arise - Prima facie, the appellant have not violated condition (vii) of the Notification No.67/95-CE and that the appellants are eligible for exemption (Para 6).

2012-TIOL-1817-CESTAT-AHM

M/s Steelco Gujarat Ltd Vs CCE (Dated : May 7, 2012)

Central Excise – Charging of Interest - A ppellant paid Service Tax on services received from Foreign Commission Agent and took cenvat credit of the same as a receiver of the service - Realising that there was no need to pay service tax as a receiver, appellant filed a refund claim which was allowed - It is the department's contention that since a refund claim was made by the service receiver himself on the ground that service tax was not payable, the credit taken itself was wrongly taken and admittedly so - Held that : In several cases this Tribunal has taken a view that what is to be examined at the receiver's end where cenvat credit is taken is whether cenvat credit is taken on the basis of proper document and whether the tax was paid or not - The legal principle laid down cannot be said to be not applicable just because the service receiver and the provider happen to be one and the same – There is a considerable force in the argument advanced by the counsel that at the time when credit was taken it cannot be said that there was a wrongful availment - There is a question of interpretation of law involved and it would require consideration of statutory provisions and precedent judicial decisions to come to a final conclusion - Prima-facie the counsel has been able show that the time when tax was paid by the appellant as a receiver, it cannot be said that it was paid wrongly especially when it was paid on the advice of the department - It cannot be said that the credit was availed wrongly and therefore interest is liable to be paid when the credit is reversed – Pre-deposit waived (Para 3). 2012-TIOL-1816-CESTAT-AHM

M/s Windson Chem Industries Vs CCE (Dated : September 29, 2012)

Central Excise - Clandestine clearances - Private computerised record - Evidentiary value - Admission by the proprietor - The proprietor of the firm who is the main beneficiary of any illegal/legal activities of the firm, has admitted in his statements that there was clandestine removal of the finished goods and admitted about the private record. There is no retraction or evidence that the statement has been recorded under duress. No further corroboration, is necessary. Further two purchasers, whose names appear in the private record have admitted that they have received the goods without invoice. Demand of duty and imposition of penalty upheld. (Para 7 & 8)

Penalty - Benefit of 25% penalty under Section 11AC at appellate stage - The assessee should be given the benefit of provisions of Section 11AC of payment of 25% of the duty demanded as penalty even at appellate stage. (Para 9)

2012-TIOL-1815-CESTAT-MUM

Shri Subhash Muljimal Gandhi Vs CC (Dated : October 10, 2012)

Contempt of Court - Appellant making allegation that Bench is favouring Revenue in absence of any evidence - SCN issued for initiation of contempt proceedings not replied by appellant despite grant of several opportunities - appellant seeking exemption from personal appearance and submitting that decision be taken and communicated - since appellant has nothing to say in reply to SCN, matter to be referred to Bombay High Court for proceedings of contempt against appellant: CESTAT [ para 2 ]

2012-TIOL-1809-CESTAT-MUM

M/s R R Paints P Ltd Vs CCE (Dated : June 29, 2012)

CENVAT Credit - Commercial complex is constructed within the factory premises as per layout submitted to the department while taking registration - Prima facie appellant entitled for service tax paid on construction of commercial complex - Pre- deposit waived and stay granted: CESTAT [para 3]

Also see analysis of the Order 2012-TIOL-1808-CESTAT-BANG

M/s BPL Telecom Pvt Ltd Vs CCE (Dated : July 7, 2012)

Central Excise – CENVAT – Penalty – Enhancement of penalty by the Commissioner (Appeals) – There is no serious challenge to the demand of duty/interest - The appellant submits that they suo motu reversed the CENVAT credit in question as soon as they came to know about refund of the duties of customs paid on the imported goods - It is borne on record that the CENVAT credit of CVD taken by the appellant was reversed by them soon after the changed circumstances were noted by them – Hence, enhancement of penalty by the lower appellate authority is not justifiable – Enhanced Penalty set aside (Para 4 & 5).

2012-TIOL-1807-CESTAT-AHM

M/s Essar Project Ltd Vs CCE (Dated : October 4, 2012)

CE - SCN specifically states that the appellant was manufacturing/fabricating reducers and bends at their workshop situated at the site – in such a factual background, confirming the demand on ground that manufacturing was done at their work shop and goods were removed to the site is incorrect – ratio laid down in Dodsal Pvt. Ltd. (2005-TIOL-1372-CESTAT-MUM) holding that Miter Bends, Ring Girders, Cones/Reducers, Elbows joints etc. if made out of duty paid goods at site cannot be considered as a manufactured item and not liable to duty squarely covers the issue in favour of appellant – Order set aside and appeal allowed: CESTAT [para 9]

2012-TIOL-1806-CESTAT-AHM

M/s United Phosphorus Ltd Vs CCE (Dated : August 9, 2012)

Central Excise - Non-speaking order - Non-supply of relied upon documents - Principles of natural Justice - The adjudicating authority has only recorded in the findings that the assessee was given documents and hence relying upon the earlier order in original confirmed the demands. Once an order in original is set aside by first appellate authority's order and remanded back to adjudicating authority, nothing survives except for the show cause notice. The adjudicating authority should decide the matter on the merits. The first appellate authority has also not given any reasoning of rejection of the appeal despite detailed grounds of appeal submitted by the assessee. Hence, both the orders of the lower authorities are in violation of the principles of natural justice and resulted in a non speaking order. Matter remanded to pass a speaking order in accordance with the principles of natural justice. (Para 4)

2012-TIOL-1802-CESTAT-MAD M/s Same Deutz Fahr India Pvt Ltd Vs CCE (Dated : June 11, 2012)

Central Excise – Exempted goods exported under Bond – CENVAT Credit cannot be denied – Rule 6(5) of the CENVAT Credit Rules, 2004.

2012-TIOL-1801-CESTAT-BANG

M/s Praxair India Pvt Ltd Vs CCE & ST (Dated : July 30, 2012)

Central Excise - Appeal - Condonation of Delay – Appeal filed with a delay of 53 days – Followed the decision of Singh Enterprises ( 2007-TIOL-231-SC-CX ) – Commissioner (Appeals) cannot condone delay beyond 30 days – CESTAT.

2012-TIOL-1795-CESTAT-MUM

Detco Textiles Pvt Ltd Vs CCE (Dated : July 19, 2012)

HASITPACD Rules, 1998 - Length of galleries is required to be excluded while fixing the annual capacity of the stenter – Order confirming demand of duty set aside and appeal allowed: CESTAT [para 4]

Adjudicating authority dropping proceedings but Commissioner(A) setting aside the same on the ground that the appellant had not challenged the order passed by the Commissioner deciding the capacity of their unit – in the case of Om Textile Pvt. Ltd., in CE Appeal no. 1 of 2006, Bombay High Court vide order dated 18.03.2006 has held that in independent and substantive proceedings appellant did raise objection to correctness of the order of Commissioner – in view of SC decision in SPBL Ltd. (2002- TIOL-649-SC-CX) order set aside and appeal allowed: CESTAT [para 4]

2012-TIOL-1794-CESTAT-MUM

CCE Vs M/s Duraware Pvt Ltd (Dated : August 9, 2012)

Appellant manufacturing Pressure cookers in the brand name of "NIRLEP" and claiming the benefit of SSI exemption on the ground that brand NIRLEP registered in the name of M/s Fulkrum Services Pvt. Ltd., Aurangabad is only in respect of kitchen containers, cooking sauce pans and not Pressure cookers - issue is now settled by the Supreme Court in the case of Rukmani Pakkwell Traders (2004-TIOL-51-SC-CX) holding that even if goods are different so long as the trade name of some other company is used, benefit of SSI exemption is not available - Order of Commissioner(A) set aside and Revenue appeal allowed: CESTAT [paras 4 & 5] 2012-TIOL-1793-CESTAT-MUM

Hindalco Industries Ltd Vs CCE (Dated : September 29, 2012)

CE - Aluminium dross and skimmings - dutiability thereon - in view of contrary decisions on the issue in KEC International Ltd. & Vishal Pipes (2010-TIOL-1847- CESTAT-DEL) pre-deposit waived and stay granted: CESTAT [para 3]

2012-TIOL-1792-CESTAT-MUM

Jindal Stainless Steelway Ltd Vs CCE (Dated : August 7, 2012)

CENVAT - Applicant cutting and slitting stainless coil and clearing the same on payment of duty by utilizing CENVAT credit and also by payment through PLA - Revenue contending that activity does not amount to manufacture, hence credit wrongly availed - demand confirmed of Rs.65.46 Crores along with interest and penalty - in view of Bombay HC decision in Ajinkya Enterprises (2012-TIOL-578-HC- MUM-CX) where it is held that when duty on final product has been accepted by Revenue, CENVAT credit cannot be denied on the ground that activity undertaken does not amount to manufacture, prima facie applicant has a strong case for waiver of adjudged dues - Stay application allowed: CESTAT [paras 7 & 8]

2012-TIOL-1790-CESTAT-MUM

M/s Sonhira SSK Ltd Vs CCE (Dated : November 7, 2012)

Matters listed before the CESTAT are put up on the website - applicant was communicated about the hearing date of 6 th August, 2012 on 18.06.2012 itself - sending a letter on 4 th August seeking adjournment shows that the applicants are interested only in delaying the proceedings - Costs imposed of Rs.20,000/- for restoration of Stay application: CESTAT [para 3]

2012-TIOL-1785-CESTAT-DEL

CCE Vs M/s Jindal Stainless Ltd (Dated : July 15, 2012)

Central Excise - Rebate - Classification - Condonation of delay - Appeal filed before wrong forum - In an ordinary course, pendency of appeal before wrong forum is required to be considered a mistake and the period of such pendency is required to be excluded for the purpose of limitation. However, the application filed before Joint Secretary (Revision Application) is not dismissed on the point of jurisdiction as it is mentioned in the order that The Revision Application is rejected for being devoid of merits. As such, the reasons adopted by the Joint Secretary for rejecting the application on merits and by observing that the classification issue does not stand set aside by CESTAT cannot be adopted as a reason for filing another appeal before Tribunal in respect of the same order of the Commissioner (Appeals).

Contra - The instant case is about eligibility of rebate claims which in turn is depended on the classification of the goods. The issue is inherently of a nature where the law provides appeals to two different authorities in two aspects of the disputed issue. In this case, first the classification is to be decided and then the eligibility for rebate. Revenue, however, filed application to J.S. apparently because they got focused on the outcome, which is rebate. Classification of goods is a matter of recurring consequence and such matters cannot be allowed to rest for such technicalities. There is nothing in the statute or general principles of law which can be interpreted to block processes to set right such errors. Hence, delay condoned. In view of difference of opinion matter referred to Third Member. (Para 4 / 12)

Third Member - The operative portion of the Jt. Secretary (RA) order rejects the Department's revision application and confirms the Commissioner Central Excise (Appeals)'s order allowing the rebate by treating the goods as classifiable under heading 73.26, the order of the Commissioner (Appeals) stands merged in the order of the Jt. Secretary (RA). Hence, no appeal against order of the Commissioner (Appeals) can be filed before Tribunal, as it no longer exists. Since what exists is the order of the Jt. Secretary (R.A.), it has to be challenged before the higher forum i.e. High Court. In a situation where the main issue is export rebate covered by first proviso to Section 35B(1) and if for deciding the issue relating to export rebate, some other issues have also to be decided, the Tribunal would not have jurisdiction and that order of Commissioner (Appeals) can be challenged only before the Jt. Secretary (RA) by filing a revision application. As Tribunal has no jurisdiction, delay in filing appeal cannot be condoned. (Para 29, 30)

Also see analysis of the Order

2012-TIOL-1784-CESTAT-BANG

Cubex Tubings Ltd Vs CC & CE (Dated : June 14, 2012)

Central Excise – Stay / Pre-deposit of Duty – CENVAT – Imported Copper Ingots / Copper Scraps at Mumbai, Nhavasheva, Chennai and Tuticorin and diverted to Tughlakabad and disposed of there and documents were prepared to show as if the materials have been received in the Hyderabad factory - Goods imported - the CHAs who are involved in clearing the imported goods have testified against the appellant to the effect that the imported goods were not sent to Hyderabad but in a different direction - The evidence of the transporters is also against the appellant - The evidence given by some of the employees also clearly against the appellant assessee - It is surprising that the goods imported in Nhavasheva was admittedly transported to Tughlakabad - The evidence based on which the appellant-assessee is claiming return of the goods to Hyderabad factory is very vague and not worth placing reliance on – Ordered for pre-deposit of duty / penalty (Para 6.1, 7.1 & 7.2).

2012-TIOL-1783-CESTAT-BANG M/s Bharat Heavy Plates & Vessels Ltd Vs CCE (Dated : July 4, 2012)

Central Excise – Stay / Pre-deposit of Duty – Demand – Demand of duty on account of finalisation of provisional assessments - Dispute relates to inclusion of value of bought out items, other charges relating to commissioning and erection, design and drawing and escalation charges - Prima facie, the demand of Rs.43.9 Crores as per the orders of original authorities will come down drastically inasmuch as the Commissioner (Appeals) has remanded the issue relating to bought out components to the original authority - In respect of 'escalation charges', the appellant does not have a prima facie case for the entire amount – Ordered for Pre-deposit of Rs.2.5 Crores keeping in view of he fact the appellant is a sick unit and is in the process of getting revived (Para 5.1, 5.2, 5.3 & 6).

2012-TIOL-1782-CESTAT-MAD

CCE Vs Cethar Vessels (P) Ltd (Dated : June 6, 2012)

Central Excise – Valuation – Drawing and design charges – General drawing and designing charges in respect of the plant which are not relatable to supply of goods not includable - Drawing and design charges attributable towards manufactured goods are includable - Matter remanded for limited purpose of determining the duty liability - Penalty imposed is for a nominal amount and the same is confirmed.

2012-TIOL-1781-CESTAT-MAD

M/s Bata India Ltd Vs CCE (Dated : May 7, 2012)

Central Excise - Liability to pay interest - Goods assessed under Section 4A based on MRP cleared to depots - Upward revision of MRP of goods lying at Depots - Appellants paid the differential duty on goods lying at Depots - Whether interest is liable to be paid on the differential duty - Contention that alteration of MRP amounts to manufacture under Section 2(f)(iii) of the Central Excise Act, 1944 not raised before the lower authority - Matter remanded.

2012-TIOL-1776-CESTAT-MUM

M/s Hitkari Hitech Fibres Pvt Ltd Vs CCE (Dated : August 23, 2012)

CE – intermediate product ‘non-woven fabric' captively consumed in manufacture of exempted Floor covering – duty demanded on the ground that non-woven fabric was being sold in the market - Adjudicating authority has held that the non-woven fabric which is sold has enhanced ‘dimensional stability' – as per Fairchild's Dictionary of Textiles, stability is governed by fiber content and by chemical and mechanical treatments – as goods captively consumed and that sold in market have different ‘dimensional stability' applicant has made out a prima facie strong case for waiver of pre-deposit – Stay granted: CESTAT [para 6]

Also see analysis of the Order

2012-TIOL-1775-CESTAT-MUM

M/s Ashirwad Fashions Vs CCE (Dated : July 31, 2012)

Penalty – Applicants are merchant exporters and purchased goods from M/s Metro Industries under cover of duty paying documents and filed a rebate claim in respect of exported goods – claim rejected and later applicant withdrew the claim – allegation that M/s Metro Industries had availed credit on inputs which were never received and subsequently the said credit has been used to discharge duty in respect of goods which were exported by applicants – applicants are alleged to have colluded in falsifying and creating fictitious invoices and penalty imposed – no evidence in adjudication order fortifying these allegations against applicant – pre-deposit waived and stay granted : CESTAT [para 4]

2012-TIOL-1774-CESTAT-MUM

CCE Vs Balkrishna Industries Ltd (Dated : March 16, 2012)

Rubberised Tyre Cord fabric is classifiable under heading 59.06 of the Tariff – matter settled in case of CCE, Goa and Chennai vs. MRF Ltd - (2005-TIOL-12-SC-CX-LB) & CCE, Bangalore vs. Vikrant Tyres Ltd. (2005-TIOL-82-CESTAT-Del-LB) – no infirmity in order of Commr(A) – Revenue appeal dismissed: CESTAT [para 4]

2012-TIOL-1772-CESTAT-BANG

CCE Vs M/s Andhra Ispat (Dated : July 23, 2012)

Central Excise – Compounded Levy Scheme – Demand – Determination of Annual Capacity of Production (ACP) - The original order fixing the duty liability itself is challenged and remanded by the Hon'ble CESTAT for reconsideration, it is evident that as of today there is no valid legal order fixing the duty liability during the material period - When there is no such valid legal order, the demands raised based on the impugned order issued by the Commissioner can not sustain - The demands are premature - Therefore, keeping in view of the Hon'ble CESTAT's order, the demands raised in the three show cause notices are not sustainable and are to be dropped (Para). 2012-TIOL-1768-CESTAT-DEL

M/s Walltracts India Pvt Ltd Vs CCE (Dated : August 10, 2012)

Roller blinds [Hdg 3925, 6303 and 7019] come into existence in the factory premises and these blinds are installed at site - since these blinds can be shifted, though in dismantled condition, the same cannot be said to be part of immovable property - although appellant were registered for payment of service tax under "Installation services" and subsequently under "Work Contract services", it is not known as to whether their activity of assembly of roller/vertical blinds had been disclosed to the department - moreover ST paid is obviously on the service component - limitation is a mixed question of law and fact - revenue interest has to be safeguarded - pre-deposit ordered: CESTAT [para 8]

Also see analysis of the Order

2012-TIOL-1767-CESTAT-MUM

Shri Vithal SSK Ltd Vs CCE (Dated : July 31, 2012)

CE - Manufacture of sugar - Boiler ash which comes into existence are not excisable goods hence is not liable to duty - order set aside and appeals allowed: CESTAT [para 3]

2012-TIOL-1766-CESTAT-MUM

M/s Amitasha Enterprises Ltd Vs CCE & CC (Dated : July 10, 2012)

Valuation - Price escalation due to increase in the electricity tariff by the Power Grid Corporation of India - applicant paying differential amount of duty - interest on differential duty is not sustainable - prima facie strong case in view of Karnataka HC decision in Bharat Heavy Electrical Ltd. (2010-TIOL-437-HC-Kar-CX) - Pre-deposit waived and stay granted: CESTAT [para 5]

2012-TIOL-1765-CESTAT-MAD

CCE Vs M/s Apex Laboratories Ltd (Dated : July 17, 2012)

Central Excise – Refund – Limitation – Refund of duty paid under protest – If protest has not been vacated by a speaking order, limitation under Section 11B is not applicable for such cases – Revenue appeal has no merit. 2012-TIOL-1760-CESTAT-MUM

Shree Chh Sahu SSK Ltd Vs CCE (Dated : July 24, 2012)

CENVAT - Credit availed on inputs and input services - applicant crushing sugarcane and sugarcane juice is used for manufacture of sugar whereas bagasse, which is a residue, cleared without payment of duty - revenue invoking rule 6 of CCR, 2004 and demanding 5%/10% of the price of the bagasse - in view of Tribunal decision in Indian Potash Ltd. (2012-TIOL-1402-CESTAT-Del) setting aside demand in similar circumstances, order set aside and appeal allowed: CESTAT

2012-TIOL-1759-CESTAT-BANG

M/s Matrix Laboratories Ltd Vs CCE (Dated : July 18, 2012)

Central Excise - CENVAT - Appeal dismissed for non-compliance of pre-deposit by the Commissioner (Appeals) - The entire amount of CENVAT credit has been reversed, albeit under protest by the appellants - There is no dispute regarding the reversal of CENVAT credit - Set aside the impugned order and matter remanded (para 3)

2012-TIOL-1753-CESTAT-MUM

M/s Shri Vithal SSK Ltd Vs CCE (Dated : July 31, 2012)

CENVAT - Press Mud and Sludge arising during the course of manufacture of Sugar and Molasses are waste and non-excisable – no cause for payment of 5%/10% amount on the value of Press mud under rule 6 of the CCR, 2004 – order set aside and appeal allowed: CESTAT [para 3]

2012-TIOL-1749-CESTAT-MUM

Panorama Industries Vs CCE (Dated : June 01, 2012)

CE – goods cleared for export from factory were lying in the warehouse at JNPT when there was a fire and the goods got destroyed – appellant was asked to pay C.Ex duty on the goods and which they paid – subsequently they filed a remission claim but their claim was rejected by Addl. Commr and against this order they filed an appeal before Commr(A) and which is pending – department issuing another demand for interest on delayed payment and which demand was confirmed – appeal filed against this order with a request that since appeal in respect of remission is pending before Commr(A) instant matter be sent to the same authority – request rejected by Commr(A) on the ground that appellate authority is different – unless a final decision is taken on liability to pay duty, interest liability cannot be confirmed – Stay application allowed : CESTAT [para 7]

2012-TIOL-1748-CESTAT-BANG

M/s Perfect Knitters Ltd Vs CCE (Dated : May 28, 2012)

Central Excise – Stay / Pre-deposit of Duty – Cotton fabrics exported under claim for rebate of duty - Notification No.29/2004-CE prescribed a 'nil' rate and Notification No.59/2008-CE levied '@4% adv.' duty – Followed the decision of Shrijee Lifestyle Pvt. Ltd. (2012-TIOL-65-CESTAT-MUM) - Simultaneous availment of two notifications was permissible - Pre-deposit waived & Stay Granted – CESTAT.

2012-TIOL-1746-CESTAT-AHM

M/s Essar Oil Ltd Vs CCE (Dated : October 25, 2012)

CENVAT credit denied on the ground that the appellant has availed credit of the inputs which were received prior to 10.09.04 and there is a delay in taking the credit even after the registration was granted - no dispute that the appellant has received the MS/steel plates in their factory premises during the construction stage which was later granted a registration as a factory refinery - in another matter involving similar allegations, credit was allowed and that order has become final - Prima facie case for waiver of pre-deposit - Stay granted: CESTAT [para 5]

Also see analysis of the Order

2012-TIOL-1745-CESTAT-MAD

M/s Deepak Engineering Pvt Ltd Vs CCE (Dated : July 13, 2012)

Central Excise - Penalty under Section 11 AC - Non-payment of duty on account of financial crisis - Entire duty was paid along with interest - No case for imposing penalty under Section 11 AC - However, the appellants are liable for penalty under Rule 27 of the Central Excise Rules, 2002 - Penalty of Rs 5,000/- imposed.

2012-TIOL-1744-CESTAT-MAD M/s Dalmia Cements (Bharat) Ltd Vs CCE (Dated : June 14, 2012)

Central Excise – CENVAT Credit on structural steel and cement - Credit is not admissible in view of the judgements in case of M/s Vandana Global Ltd and M/s Saraswati Sugar Mills – However, penalties set aside.

2012-TIOL-1743-CESTAT-MAD

M/s Daebu Automotive Seat India Ltd Vs CCE (Dated : July 13, 2012)

Central Excise - Penalty under Section 11AC of the Central Excise Act, 1944 for demands under Section 11D - Penalty set aside as there are no provisions under the Central Excise Act, or the Rules made thereunder for imposing penalty for demands under Section 11D - Penalty imposed for demand under Section 11A(1) is upheld and reduced to 25% if the same is paid within 30 days of the receipt of the order.

2012-TIOL-1742-CESTAT-MUM

Bullows India Pvt Ltd Vs CCE (Dated : July 13, 2012)

Notfn. 1/93-CE – SCN only alleges that the holding company has share capital in the subsidiary company – revenue has to establish that there was mutuality of interest or financial flow back of funds – since there is no evidence to the said effect, clubbing of clearances and denial of SSI benefit improper – order set aside and appeal allowed: CESTAT [para 7]

2012-TIOL-1738-CESTAT-MUM

CCE Vs J Square Steels Pvt Ltd (Dated : September 07 2012)

Appeal has already been dismissed by the Tribunal - it appears Revenue has filed application for early hearing without going through the records - Application dismissed: CESTAT.

2012-TIOL-1737-CESTAT-MUM

CCE & ST Vs Rashtriya Chemicals & Fertilisers Ltd (Dated : August 27 2012) ROM application filed on the ground that in final order there is no finding in respect of penalty imposed u/r 173Q by the adjudicating authority - it appears that application is filed without reading the final order as in the last paragraph it has been specifically held penalty imposed u/r 173Q is set aside - Frivolous application dismissed: CESTAT.

Also see analysis of the Order

2012-TIOL-1736-CESTAT-MUM

Karmayogi Shankarraoji Patil SSK Ltd Vs CCE (Dated : July 23, 2012)

CENVAT - applicant is engaged in manufacture of sugar and molasses by crushing sugarcane - bagasse emerging in the process is cleared without payment of duty - Revenue invoking provisions of rule 6 of CCR, 2004 and demanding amount of 5%/10% of the price of the bagasse cleared - SCN does not mention as to which are the common inputs/input services used - moreover since bagasse emerges at crushing stage, there is no possibility of any input-chemicals etc. having been used - order set aside and appeal allowed: CESTAT [para 4]

2012-TIOL-1735-CESTAT-DEL

M/s Evinix Accessories Pvt Ltd Vs CCE (Dated : October 10, 2012)

Notfn. 23/03-CE - DTA clearances made by the appellant were in excess of the permitted clearances and the same cannot be said to be in accordance with the provisions of para 6.8 of the Foreign Trade Policy and hence such clearances would not be eligible for concessional rate of duty – so also clearances for the later period without any permission from the Development Commissioner is prima facie not entitled for the benefit of notfn 23/03-CE as in the absence of the Development Commissioner's letter, it cannot be said that during this period the appellant had achieved positive NFE or that DTA clearances were within 50% of the FOB value of the exports – Pre-deposit ordered of the full amount of duty confirmed: CESTAT [paras 7, 8 & 9]

2012-TIOL-1734-CESTAT-MAD

M/s Jayalakshmi Processing Mills Vs CCE (Dated : June 6, 2012)

Central Excise - Demand of duty on account of process of dyeing of cotton fabrics is upheld - Penalty - The appellant may be given an opportunity of concessional penalty subject to payment of duty and interest within 30 days of service of intimation of duty and interest payable by the appellant - Matter remanded to verify the duty and interest if any already paid and to grant option for payment of reduced penalty of 25%. 2012-TIOL-1733-CESTAT-MAD

M/s Lakshmi Machine Works Ltd Vs CCE (Dated : July 13, 2012)

Central Excise – CENVAT Credit – 100% CENVAT Credit taken on capital goods instead of 50% in a financial year – Appellants reversed the entire credit with interest before issue of the Show Cause Notice - T he appellants are having sufficient CENVAT credit balance in their account – No case for imposing penalty under Section 11AC.

2012-TIOL-1727-CESTAT-MUM

Rishabh Instruments Pvt Ltd Vs CCE (Dated : July 9, 2012)

CE – Notfn. 2/95-CE – benefit of notification denied and demand of duty confirmed on the ground that the 100% EOU had permission to sell only ‘panel meters' in DTA whereas they have cleared other goods too – Development Commissioner has clarified that as per paragraph 9.24 of the Handbook of Procedures, assessee is entitled to clear the goods manufactured by it in totality to the DTA and not with reference to specific items – similar issue decided in favour by Tribunal in appellant's own case and order upheld by Bombay High Court – impugned order set aside and appeal allowed: CESTAT [para 3]

2012-TIOL-1721-CESTAT-AHM

M/s Garuda Cotex Shades Ltd Vs CCE (Dated : June 14, 2012)

Central Excise – CENVAT – Denial of CENVAT Credit on Capital Goods – Followed the decision of Sterlite Industries (I) Ltd - ( 2005-TIOL-305-CESTAT-MUM-LB) - If an assessee is functioning under Notification No.214/86-CE and if the ultimate principal manufacturer is discharging Central Excise duty liability after consumption of job worked goods, it has to be held that the said notification does not exempt the goods manufactured on job work by an assessee - It is settled law that if the capital goods are used for manufacturing of exempted goods as well as the goods which are liable to duty, then there cannot be any denial of CENVAT Credit of Central Excise duty paid on the capital goods (Para 8 & 9).

2012-TIOL-1718-CESTAT-MUM

R R Paints Pvt Ltd Vs CCE (Dated : June 15, 2012) CENVAT - Retrospective amendment of Rule 6 of the CCR, 2004 – Common input services used for dutiable and exempted final products - since the appellant did not reverse the proportionate CENVAT credit within six months of the enactment of the Finance Act, 2010, they cannot claim the benefit of the retrospective legislation – Tribunal being a creature of the statute cannot go beyond the same and condone the time limits specified – demand of 10% of the price of the exempted products is proper - however, penalty set aside as there is no intention to evade duty: CESTAT [paras 5.2, 5.3 & 5.4]

Also see analysis of the Order

2012-TIOL-1717-CESTAT-DEL

M/s Siddhartha Tubes Ltd Vs CCE (Dated : June 26, 2012)

Central Excise - Clandestine removal - Limitation - Extended period - The assessee has contested the demand of duty on the grounds of time bar. The issue being related to clandestine removal, the normal period of limitation would not apply. Demand upheld. (Para 8)

Penalty - Non-challenge of OIA - Enhancement of penalty on remand - The earlier order of Commissioner (Appeals) was not appealed against by Revenue for the purpose of enhancement of penalty. As such when the matter was remanded by Tribunal to Commissioner (Appeals) for fresh decision, it was not open to Commissioner (Appeals) to enhance the penalty equivalent to duty amount as the earlier order of Commissioner (Appeals) had attained finality in respect of penalty amount. (Para 8)

2012-TIOL-1714-CESTAT-MUM

M/s Trans Electric Vs CCE (Dated : October 10, 2012)

CE - applicant failing to produce any notification even before the CESTAT for claiming exemption in respect of goods cleared - Pre-deposit ordered of entire duty amount: CESTAT [para 4]

Also see analysis of the Order

2012-TIOL-1713-CESTAT-MAD

M/s Lakshmi Bleachers Vs CCE (Dated : May 28, 2012) Central Excise – Limitation – Contention that the appellants had bonafide belief that the impugned goods were not excisable - Persons in the textile manufacturing and trading circle cannot be said to be unaware of the fact that polycot sarees have a predominance of polyester – Plea of bonafide not sustainable – The appellant had not intimated the Department regarding manufacture and clearance of dyed polycot sarees without payment of duty - It is also a fact that the appellants have not raised the issue of bonafide belief and limitation before the original authority in the first round of litigation – Demand under extended period upheld.

2012-TIOL-1709-CESTAT-BANG

M/s Resil Chemicals Pvt Ltd Vs CCE (Dated : March 2, 2012)

Central Excise – CENVAT – Eligibility of Credit of tax paid on Outdoor Catering Service – Number of employees less than 250 - It is not in dispute that, supply of food was subsidized and that the appellant is not entitled to claim CENVAT credit to the extent food was supplied in a subsidized manner - Another fact that emerges is that the cost of supply of food was also incorporated in the cost of production – Followed the case of GTC industries (2008-TIOL-1634-CESTAT-MUM-LB) - the legal obligation of the manufacturer under the Factories Act was considered as a relevant factor determinative of nexus between the service and the business of manufacture of goods - The appellant cannot claim CENVAT credit on 'outdoor catering service' (Para 3).

Central Excise – CENVAT – Eligibility of Credit of tax paid on Air Travel Service, Rent- a-Cab Service and Cleaning/House-keeping Service - A reasonable opportunity should be given to the appellant to establish, before the original authority, the requisite nexus between the business of manufacture of goods and the services which are claimed to be input services for the purpose of CENVAT credit (Para 4).

Central Excise – CENVAT – Eligibility of Credit of tax paid on CHA Service - It is not deniable that CHA's service was availed by the appellant for export of their goods, which was a part of their business - The requisite nexus between the service and the business of the company stands established - CENVAT credit is admissible on the CHA service (Para 5).

2012-TIOL-1708-CESTAT-BANG

M/s Manipal Springs Ltd Vs CCE (Dated : July 20, 2012)

Central Excise - Penalty - Utilizing CENVAT credit for payment of duty on certain clearances made even after committing continuance default of payment of duty - Penalty imposed on the appellants under Section 11AC and Rule 25 of Central Excise Rules, 2002 for contravening the provisions of Rule 8(1), Rule 8(3A) and Rule 11(4) ibid - Held that : The provisions of Rule 25 ibid is not applicable to the present case for want of intent to evade payment of duty - It is also pertinent to note that the lower appellate authority vacated Section 11 AC penalty after holding that the case was only of interpretation of law and the same involved only a delay in payment of duty - Nowhere in the impugned order is there any finding of the assessee having had any intent to evade payment of duty - Penalty set aside and appeals allowed (Para 3 & 4). 2012-TIOL-1707-CESTAT-MUM

Tata Steel Ltd Vs CCE (Dated : June 15, 2012)

ISD invoices issued by HO pertaining to Input Services not used at appellant's plant – since in the appellant's own case for the earlier period on an identical issue the CESTAT has held that the appellant is entitled for Input Service credit, the Bench is not required to go into the details of arguments advanced by the Revenue – Order set aside and appeal allowed: CESTAT [para 5]

Also see analysis of the Order

2012-TIOL-1706-CESTAT-MUM

M/s Tata Motors Ltd Vs CCE (Dated : September 6, 2012)

CENVAT – shortage of inputs found during physical verification – reversal of credit sought of Rs.1,08,99,455/- – appellant submission is that rule 3(5B) of CCR, 2004 applies only when inputs are written off fully and there is no evidence on record that inputs were cleared without payment of duty and the shortage is on account of accounting discrepancy – since as per appellant's own physical verification there is shortage of inputs and these inputs were not put to use in or in relation to manufacture of excisable goods, no prima facie case made for waiver – pre-deposit ordered of Rs.40 lakhs: CESTAT [para 5]

2012-TIOL-1705-CESTAT-DEL

M/s Tata Motors Ltd Vs CCE (Dated : September 20, 2012)

CE – Valuation - Applicants are engaged in the manufacture of body building on the chassis being provided by M/s Tata Motors Ltd. and Swaraj Mazda - Duty of excise paid on cost construction method – Revenue confirming duty demand by applying rule 10A of the Valuation Rules, 2000 - issue is primarily covered against the appellant in view of decision in Audi Automobiles vs. CCE, Indore (2009-TIOL-1289-CESTAT-DEL) – noting this decision in similar case of HYVA (India) Private Limited vs. CCE, Mumbai - II 2011-TIOL-1223-CESTAT-MUM pre-deposit ordered of Rs.50 lakhs by CESTAT was set aside by the Bombay HC and matter ordered to be decided expeditiously - All the litigants similarly situated before a particular forum are required to be treated in the same manner - Once directions given by the Tribunal in respect of such a litigant stand set aside by the High Court, same status is required to be conferred upon all the other litigants similarly situated – no directions for any pre-deposit are required to be made – Stay petition allowed unconditionally: CESTAT [paras 3, 4 & 5] 2012-TIOL-1704-CESTAT-MAD

M/s Textile Syndicate Vs CCE (Dated : March 15, 2012)

Central Excise – Refund under Rule 5 of the CENVAT Credit Rules, 2004 – The appellant could not produce proof even after remanding in the first round that the goods were exported – Appellant's contention that supplies to EOUs should be treated as exports is not acceptable as the goods are not taken out of India – Orders passed by the lower authorities require no interference.

2012-TIOL-1703-CESTAT-MAD

CCE Vs M/s Sivalogam Steels Pvt Ltd (Dated : June 5, 2012)

Central Excise – Demand of duty on clandestine clearances – Excesses and shortages found during the physical stock verification – Partial relief granted by the Commissioner (Appeals) is not proper – As per the decision of Madras High Court that shortage of goods during physical verification in absence of satisfactory explanation on such shortage gives rise to the inference that there was clandestine removal of goods, and appreciating the cogent evidence available on record against respondent - 1, the first appellate authority needs to redecide the matter – Matter remanded.

2012-TIOL-1696-CESTAT-DEL

M/s C T Cotton Yarn Ltd Vs CCE (Dated : June 25, 2012)

Central Excise - 100% EOU - Clearance of soft cotton wash in DTA - Whether amounts to manufacture? - 'soft cotton waste' is nothing but short fibres and other waste material obtained in course of carding and combing of ginned cotton. Obtaining soft cotton waste, in course of carding and combing of ginned cotton does not amount to manufacture as no new product with distinct name, usages and character emerges. (Para 6, 6.2.4 & 6.3)

Limitation - Extended Period - The Department was aware of the fact about emergence of soft cotton waste in course of manufacture of cotton yarn from ginned cotton and clearance of soft cotton waste into DTA. The non-payment of duty cannot be attributed to fraud, wilful misstatement, suppression of facts on contravention of provision of Rules with intent to evade the payment of duty. Therefore, only normal limitation period would be available. (Para 7.2)

Manufacture - Meaning of - Manufacture under Central Excise means a process which results in emergence of a commercially new product with distinct identity, usages and character from the raw material. (Para 6.2.4)

Also see analysis of the Order 2012-TIOL-1695-CESTAT-MUM

Jbm Ma Automotive Pvt Ltd Vs CCE (Dated : July 18, 2012)

CENVAT – cenvatted moulds & dies cleared without payment of duty to the vendors – Revenue alleging that since vendors are not job workers benefit of rule 4(5)(b) of the CCR, 2004 not available & duty demanded - when vendors are manufacturing goods as per specification of the manufacturer they are to be treated as job worker – prima facie strong case in favour – pre-deposit waived and stay petition allowed: CESTAT [para 5]

2012-TIOL-1694-CESTAT-MAD

Jayachakra Chemicals Vs CCE (Dated : June 8, 2012)

Central Excise – Sulphuric acid obtained under exemption Notification No 7/94 CE and used for manufacture of magnesium sulphate for which the exemption is not admissible as finally settled by the Supreme Court - The Central Excise officials as well as the appellants were under the impression that magnesium sulphate was a fertilizer and sulphuric acid could be procured duty free for the purpose of manufacturing the same -There was a change in the situation which was obviously not known to both sides - Under the circumstances, it would not be proper to uphold the demand for the extended period of limitation under Section 11A – Limitation under Section 11A is applicable to the goods cleared under Chapter X procedure - Demand for normal period upheld.

2012-TIOL-1693-CESTAT-AHM

M/s Janta Glass Ltd Vs CCE (Dated : July 2, 2012)

Condonation of Delay – The only reason given for non-filing of appeal in time is being that the person who was looking after the excise work had left the company - The details as regards who was the person, when he left nothing is given - The reason given by the applicant for condonation of delay is very sketchy and cannot be accepted as justifiable reason (Para 3).

2012-TIOL-1692-CESTAT-BANG

M/s Incowax Pvt Ltd Vs CCE (Dated : June 8, 2012) Central Excise – Stay / Pre-deposit of Duty – Clearance of defective returned goods after reprocessing / remade - the appellant did not have liability to pay duty on the goods which were kept in their factory without being cleared - This disputed demand amounts to Rs.2,30,473/- As the nature of defects of the returned goods has not been explained, it is not possible to conclude as to whether the processes undertaken by the appellant for removing the defects amounted to manufacture or not - Seemingly, the appellant did not maintain records as required under Rule 16(1) ibid - Therefore, they cannot be held to have made out a prima facie case against the demand - All other aspects of the present dispute need to be addressed elaborately at final hearing stage - Ordered for pre-deposit of Rs.2 Lakhs (Para 3 & 5).

2012-TIOL-1684-CESTAT-MUM

Ghodganga SSK Ltd Vs CCE (Dated : July 19, 2012)

CENVAT – Input and input services used in the manufacture of Sugar - Bagasse emerges in the course of crushing of sugarcane and is a waste product – by no stretch of imagination it can be said that the assessee possibly could have maintained separate account of the inputs/input service for production of sugar and molasses (excisable goods) and bagasse – payment of amount of 5% / 8% of the price of bagasse in terms of rule 6(3) of CCR, 2004 on the ground of common usage of input/input services is not warranted – demand set aside and appeal allowed: CESTAT [para 4]

2012-TIOL-1683-CESTAT-MUM

Hutatma Kisan Ahir Ssk Ltd Vs CCE (Dated : July 31, 2012)

CENVAT - Appellant engaged in the manufacture of sugar – Bagasse which is a residue, of sugarcane after crushing, is cleared without payment of duty – demand confirmed on the ground that since CENVAT credit was taken on common inputs and input services, appellant are liable to pay 5%/10% of price of bagasse – issue now settled by the Allahabad HC in case of Balrampur Chini Mills Ltd. holding that bagasse is neither manufactured goods nor final product but a residue/waste and demand by invoking rule 6 of CCR, 2004 is not sustainable – a similar view has also been taken in case of Indian Potash Ltd. – no reason to take a contrary view – order set aside and appeal allowed : CESTAT [paras 3 & 4]

2012-TIOL-1682-CESTAT-MUM

M/s I G Petrochemicals Ltd Vs CCE (Dated : September 11, 2012)

Rule 2(l) of CCR, 2004 - CENVAT credit availed on Security charges and charges paid for water proofing provided to staff colony, Insurance of household furniture at the residence of employee, GTA services, Shipping, CHA & CFA towards outward transportation beyond factory and place of removal etc. – major demand of more than Rs.1 crore is confirmed by denying credit on GTA services, CHA, CFA etc. used in respect of goods exported by appellant – as amounts towards such services are part of FOB value of goods exported, prima facie appellant have strong case in this regard – as regards other services no prima facie case in favour – pre-deposit ordered of Rs.5 lakhs: CESTAT [paras 6, 7 & 8]

2012-TIOL-1681-CESTAT-MUM

CCE Vs M/s Indian Oil Corporation Ltd (Dated : July 18, 2012)

Refund – Section 11BB of CEA, 1944 - Interest allowed from the date of expiry of three months from the date of receipt of application for refund till the date of payment – no infirmity in the order of Commissioner(A) in view of Apex Court decision in Ranbaxy Laboratories Ltd. (2011-TIOL-105-SC-CX) – Revenue appeal dismissed: CESTAT [para 3]

2012-TIOL-1679-CESTAT-BANG

M/s Indian Explosives Ltd Vs CCE (Dated : June 13, 2012)

Central Excise – Refund – Price variation clause - Refund claim filed on account of excess duty paid due to downward revision of prices of goods supplied – Time Bar - Followed the decision of MRF case (2002-TIOL-257-SC-CX-LB) - The ruling of the apex court is clear to the effect that, when an assessee claims refund of duty on the basis of price variation under the price variation clause of the relevant contract subsequent to clearance of the goods, the claim, for whatever reason, cannot be allowed - The refund claim filed by the appellant cannot be allowed on any ground whatsoever – The plea of the appellants is that, in view of the price variation clause contained in the relevant contract, the self assessment made by the appellant can be considered to be provisional in nature and, consequently, the subject refund claim can be allowed without time bar - This submission is not supported by any statutory provision (Para 4).

2012-TIOL-1677-CESTAT-MUM

Meyer Organics Pvt Ltd Vs CCE (Dated : August 28, 2012)

S. 4A - CE - Physician samples - as duty has been paid on MRP basis abatement cannot be denied - Pre-deposit waived and stay granted: CESTAT [para 3]

Also see analysis of the Order 2012-TIOL-1675-CESTAT-BANG

M/s Shree Renuka Sugars Ltd Vs CCE (Dated : June 21, 2012)

Central Excise - Stay / Pre-deposit of Duty - Denial of CENVAT Credit on GTA Service used for transportation of sugar cane to the appellant's factory - The adjudicating authority held that there was no nexus between the input service and the manufacture of sugar and, therefore, the CENVAT credit taken on that service was not admissible - the view taken by the adjudicating authority is not sustainable on facts or in law - Pre-deposit waived (Para 1 & 2).

2012-TIOL-1674-CESTAT-AHM

Additional Commissioner Of Central Excise, Customs Vs M/s Man Industries (I) Ltd (Dated : June 11, 2012)

Central Excise - Refund - Benefit of Exemption under Notification No.39/2001-C.E dated 31.07.2001 - In terms of the condition to aforesaid notification a manufacturer must first utilize whole of the CENVAT Credit available for discharging of duty on goods manufactured and pay the balance amount in cash and payment made by the manufacturer in cash is admissible as refund - Respondent wrongly claimed the Cash Refund without utilising the entire Cenvat Credit available with them - Held : The grounds of appeal of department are not rebutting the detailed findings of the first Appellate Authority and raises technicality of the impugned order - Revenue not disputed about the eligibility to avail Cenvat Credit, but their objection is only for availment of such credit in later months - Revenue objection is incorrect, as, if an assessee if otherwise is entitled to credit should not be denied the benefit only on technicality - The impugned order has correctly appreciated the law based upon factual findings by first appellate authority - Appeal filed by department is rejected (Para 7).

2012-TIOL-1673-CESTAT-AHM

M/s Nissan Copper Ltd Vs CCE (Dated : August 28, 2012)

Central Excise – Denial of CENVAT Credit on the inputs on the ground that the same were not received in the factory – Impugned order has been passed without allowing the cross examination of the transporters requested by the appellant – Matter remanded to the original authority.

2012-TIOL-1666-CESTAT-MUM

Fredun Pharmaceuticals Ltd Vs CCE (Dated : July 9, 2012) CE - Excisability - Samples in the form of un-packed tablets drawn from bulk prior to packing stage for analytical analysis and cleared outside the factory are excisable goods liable to Central Excise duty - Appeal dismissed: CESTAT [paras 5 & 6]

Also see analysis of the Order

2012-TIOL-1665-CESTAT-BANG

M/s Kangovi Electronics Pvt Ltd Vs CCE (Dated : April 12, 2012)

Central Excise - Stay / Pre-deposit of duty - Valuation - Revenue Neutrality - it is a case of revenue neutrality as whatever duty was paid by unit III of the appellant company was available as credit to unit I of the appellant company - Waived pre- deposit of dues (Para 3).

2012-TIOL-1664-CESTAT-BANG

M/s Kirloskar Batteries Pvt Ltd Vs CCE (Dated : February 28, 2012)

Central Excise - CENVAT - Denial of Credit of duty paid on Capital Goods on the ground that depreciation was claimed under the Income Tax Act - The documents prima face shows that they reduced an amount equivalent to the CENVAT credit in question from the opening balance of plant and machinery and, accordingly, the Income Tax Return was filed for subsequent year - Obviously, these crucial documents were not available to the original authority and that authority was therefore handicapped in taking a decision on the dispute - Further, the appellate authority did not properly examine the documents produced by the assessee - In the circumstances, the matter requires to be remanded to the original authority for de novo consideration (Para 2).

2012-TIOL-1663-CESTAT-BANG

CCE Vs Parasakthi Cement Inds Ltd (Dated : April 20, 2012)

Central Excise - CENVAT - Credit of tax paid on GTA Services availed for outward transportation prior to 01.04.2008 - Followed the decision of ABB Ltd. - (2011-TIOL- 395-HC-KAR-ST) - Allowed credit of tax paid on GTA Services availed for outward transportation (Para 1).

2012-TIOL-1656-CESTAT-MUM Kaysons Plasto Print Industries Vs CCE (Dated : June 27, 2012)

Notfn. 8/2003-CE – Brand name - applicant manufactures plastic polythene rolls/sheets bearing the brand name of the customers and these are ultimately used by customers for packing their finished goods – several amendments were made to clause (e) of the notification indicating that it was the intention of the legislature to give the benefit to the manufacturer of packing material which bears the brand name of customers – notfn. 24/2010-CE is to be given retrospective effect – prima facie case made for waiver of pre-deposit – Stay granted: CESTAT

2012-TIOL-1654-CESTAT-MUM

Pyro Electric & Allied Instruments Pvt Ltd Vs CCE (Dated : August 27, 2012)

CE - Brand name PYRO ELECTRIC is registered with M/s. Pyro Electric Instruments Goa Pvt. Ltd. and the applicants are manufacturing goods with the brand name by adding the word ‘INSTRUMENTS' - Benefit of SSI exemption not available - applicant has failed to make a case for waiver - Pre-deposit ordered: CESTAT [paras 7 & 8]

Also see analysis of the Order

2012-TIOL-1646-CESTAT-MUM

Deepak Fertilizer & Petrochemicals Corpn Ltd Vs CCE (Dated : July 25, 2012)

CE - Cenvatted items after use cleared without payment of duty – Revenue demanding duty as Scrap without indicating any classification of the items – For demanding duty on excisable goods, firstly the same are to be classified under a tariff heading and thereafter appropriate rate of duty is to be applied – neither in the o-in-o nor in the o-in-a there is a finding regarding classification – order set aside and matter remanded to adjudicating authority: CESTAT [para 6]

Also see analysis of the Order

2012-TIOL-1645-CESTAT-AHM

M/s Kabisco Food Industries Vs CCE (Dated : June 11, 2012)

Central Excise – Penalty – Penalty imposed on the ground that the appellants received packaging material for Biscuits clandestinely from a manufacturer - The plea of the appellants is that they received the goods under challans were against the rejected materials returned to them for which no separate invoice were required – Held that : Even if the material was returned as per the provisions of law, the appellant was required to issue fresh invoices indicating the details of earlier invoices and the nature of repair undertaken such as repair or reconditioning - The material should not have been sent under an ordinary delivery challan. The appellants being the manufacturers themselves and having knowledge of Central Excise law, cannot be said to be ignorant of the fact that the packaging materials were sent back to them as replacement without payment of duty – Definitely involved in evasion of duty by the manufacturer - Taking note of the fact that the appellant was responsible only for a small part of evasion and related to few delivery challans and having regard to the quantum or material replaced and duty involved thereon, penalty amounts reduced (Para 4).

2012-TIOL-1644-CESTAT-AHM

M/s Shree Sayan Vibhag Sahakari Khand Udyog Mandli Ltd Vs CCE (Dated : August 29, 2012)

Central Excise – Stay/Dispensation of pre-deposit – Manufacture of dutiable and exempted goods - Demand of 5% under Rule 6 of the CENVAT Credit Rules on bagasse – Prima facie case has been made out for waiver of pre-deposit.

2012-TIOL-1643-CESTAT-AHM

CCE Vs M/s Pipavav Shipyard Ltd (Dated : July 2, 2012)

Condonation of Delay - It can be noticed that the reasons given are not justifiable as the very same order in appeal contained everything and which has been adjudicated and accepted - The points which sought to be urged were already present when the impugned order was received by the lower authorities - Revenue has not made out a case for condoning the delay in filing the appeal - Application for condonation of delay is dismissed (Para 4).

2012-TIOL-1637-CESTAT-DEL

CCE Vs M/s Shree Ganapati Synthetics Ltd (Dated : May 22, 2012)

Shrinkage of grey fabrics to the extent of 12.53 % claimed by assessee – department alleging that as per Board's order dated 09.03.1994 only a shrinkage to the extent of 4% permissible hence duty demanding for the excess claim – there is absolutely no evidence on record to indicate any clandestine removal of final products without payment of duty – in absence of same, no merit in demand – Revenue Appeal rejected: CESTAT [paras 5 & 6] 2012-TIOL-1636-CESTAT-DEL

CCE Vs Electricity Pole Manufacturing (Dated : June 22, 2012)

Central Excise - SSI Exemption - Clubbing of Clearances - The assessee is a manufacturing unit owned and controlled by the State Government. As such, they are covered under Explanation (E) of SSI exemption Notifications inasmuch as the value of excisable goods cleared from such factory alone shall be taken into account. (Para 8)

2012-TIOL-1634-CESTAT-AHM

M/s Ascent Healthcare Vs CCE (Dated : June 26, 2012)

Central Excise – Stay / Pre-deposit of Duty - Classification of Electric Heating belts and bandages - the issue is highly contentious and arguable - The HSN Notes of Chapter 90.21 do not specifically include the items manufactured by the appellant on which duty liability has been confirmed - At the same time the Chapter heading 90.18 also does not include the items manufactured by the appellant but gives some kind of indication as to inclusion of the product in the said Chapter heading - The issue needs to be gone into detail appreciating the same from various angles, vis-a-vis, the findings of the adjudicating authority and other evidences, which can be done only at the time of final disposal of appeal - the appellant has not made out a prima facie case for complete waiver of pre-deposit of amounts involved – Ordered for Pre-deposit of Rs.25 Lakhs (Para 4 & 5).

2012-TIOL-1633-CESTAT-MUM

CCE Vs M/s Impak Steel Industries Pvt Ltd (Dated : July 13, 2012)

CE - Excisability of the process of profile cutting itself was in doubt even at the higher level of the department - Revenue contention that the manufacturer had not raised the issue with the department not a ground to invoke larger period of limitation - demand beyond the normal period of limitation rightly set aside by the Commissioner(A) - Revenue appeal dismissed [para 5]

2012-TIOL-1632-CESTAT-MUM

Endurance Technologies Pvt Ltd Vs CCE (Dated : August 28, 2012)

CE - Valuation - Closed Audit objection re-opened and SCN issued for a period of "seven" years invoking extended period of limitation u/s 11A of the CEA, 1944 - Prima facie merit in the contention of the applicant that demand is time barred - Stay petition allowed: CESTAT [paras 7 & 8] Also see analysis of the Order

2012-TIOL-1631-CESTAT-MAD

CCE Vs The India Cements Ltd (Dated : June 13, 2012)

Central Excise - CENVAT Credit on Capital goods - Credit is not admissible on the structural items used for fabrication of supporting structures - Credit is admissible on the inputs used for manufacture of capital goods and components thereof.

2012-TIOL-1630-CESTAT-DEL

M/s Sakta Inx India Ltd Vs CCE (Dated : July 10, 2012)

Central Excise - CENVAT - Inputs used to manufacture capital goods - Goods not embedded to earth - Eligibility of Input credit - The inputs are used in fabrication of the oil tank which is not embedded to earth. The oil tank is also a capital goods under Chapter 73 of Tariff Act, 1975. Therefore, there should not be denial of Cenvat Credit on the input used. (Para 6)

2012-TIOL-1629-CESTAT-BANG

CCE Vs M/s NSL Sugars Ltd (Dated : June 15, 2012)

Central Excise - CENVAT - Factual Error - Denial of Credit of duty paid on TMT Bars, MS Rounds, CMT Bars, Roofing Sheets, etc., used for construction of Civil Structure - The Commissioner (Appeals) allowed the appeal of the respondents by holding that the TMT Bars, M.S. Rounds, etc. are used for fabrication of storage tanks, which is covered under the definition of capital goods - The present appeal of the Department is against the above finding of the lower appellate authority - The appellant has correctly pointed out a patent factual error in the above finding of the learned Commissioner (Appeals) - The CENVAT credit in question was taken on structural items used in the construction of civil structures and not for fabrication of storage tanks as rightly pointed out by the appellant and agreed to by the counsel for the respondent - Matter remanded to the Commissioner (Appeals) (Para 2).

2012-TIOL-1628-CESTAT-BANG

M/s Sidharth Paper Products Vs CCE (Dated : May 4, 2012) Central Excise - Penalty - Imposition of Penalty under Rule 15 of CENVAT Credit Rules, 2004 for taking credit suo moto during the course of shifting of manufacturing unit from one place to other - T he appellant applied to the proper officer of Central Excise for transfer of unutilized CENVAT credit due to shifting of manufacturing unit along with stock position of raw materials, semi-finished goods etc. - Before any verification could be done by the departmental officers, the appellant shifted the Unit - appellant taken CENVAT credit without prior permission of the proper officer - At this stage, the exact date on which the Unit was shifted cannot be confirmed and there is a gap of 5 days between the date of application for permission and the date of intimation of shifting of the Unit - It is up to the original authority to ascertain the correct factual position -Allowed the appeal by way of remand with a direction to the original authority to ascertain the correct facts and take fresh decision (Para 3).

2012-TIOL-1622-CESTAT-MUM

Trans Electric Vs CCE (Dated : August 27, 2012)

Clearances of excisable goods without payment of duty under EPCG scheme –since issue involves determination of rate of duty matter cannot be heard by Single Member Bench but by a Division Bench in view of section 35D(3) of the CEA, 1944: CESTAT [para 1]

Also see analysis of the Order

2012-TIOL-1621-CESTAT-MUM

ITC Ltd Vs CCE (Dated : August 2, 2012)

S.35F of the CEA, 1944 - As there is no requirement for deposit of redemption fine for hearing the appeal before the Tribunal, therefore, the question of waiver of redemption fine for hearing the appeal does not arise – No merit in application, hence dismissed: CESTAT [para 3]

Also see analysis of the Order

2012-TIOL-1620-CESTAT-MAD

M/s Ritzbury India (P) Ltd Vs CCE (Dated : May 2, 2012)

Central Excise – Small Scale exemption – Brand name – Assignment of Brand name of a foreign company to an Indian Company – In view of the Supreme Court decisions in case of Primella Sanitary Products and Convertech Equipment, SSI exemption is admissible. 2012-TIOL-1619-CESTAT-AHM

M/s Ram Ratna Wires Ltd Vs CCE (Dated : June 25, 2012)

Central Excise – MODVAT / CENVAT - The adjudicating authority held that the goods manufactured by the appellant is not a manufactured product and appellant is not eligible to avail the MODVAT / CENVAT credit – The Adjudicating Authority erred in coming to a conclusion that the appellant is not eligible for the CENVAT credit of the duty paid on inputs -It is undisputed that the material period in dispute in this case is from April 2001 to November 2003 wherein the appellant was in the process of drawing wires from wire rods. It is also undisputed that during the relevant period the said process was considered as an activity amounting to manufacture. It is also undisputed that if this activity would amount to manufacture, the appellant would be eligible to avail cenvat/modvat credit of the duty paid on the inputs i.e. wire rods. The issue is now squarely settled in favour of the assessee (Para 6).

2012-TIOL-1613-CESTAT-MUM

Mahavir Steel Industries Ltd Vs CCE (Dated : July 6, 2012)

Supplies to SEZ developers are to be treated as exports – provisions of rule 6(6) of the CCR, 2004 come into picture and there is no cause for payment of an amount of 10% in case no separate accounts have been maintained – decision in Sujana Metal Products Ltd . 2011-TIOL-1173-CESTAT-Bang followed – pre-deposit waived and stay granted: CESTAT [para 2]

2012-TIOL-1612-CESTAT-MUM

M/s Nulife Pharmaceuticals Vs CCE (Dated : August 14, 2012)

CENVAT - Aluminium sheets, flush partition, flush door, ceiling etc. are used for making partitions in the manufacturing area for placing the Air Handling Unit – moreover, no credit availed in respect of Air Handling unit – in view of the above, it cannot be said that these are parts and accessories to the capital goods – Manager of applicant's unit has already admitted that the items are not covered u/r 2 of the CCR, 2004 – no prima facie case made out – Pre-deposit ordered: CESTAT [para 5]

2012-TIOL-1611-CESTAT-MUM

M/s Racold Thermo Ltd Vs CCE (Dated : March 20, 2012) Whether the duty is paid rightly or wrongly is not the concern of the appellant who is only a recipient of the goods/service – so long as duty is paid either on the goods or service, appellant is rightly entitled for the credit – Appeal allowed: CESTAT [para 6]

Appellant receiving duty paid hydrogen and argon gas from M/s Praxair India P. Ltd. for the purpose of welding – before welding, these gases have to be mixed together and in this regard M/s Praxair India has set up a facility/machinery in the appellant's premises and for which appellant has to pay facility charges – on this charges also, M/s Praxair discharged excise duty – CENVAT Credit availed by appellant of this duty paid is proper in view of Tribunal decision in their own case for previous period and which order has not been appealed against – Appeal allowed with consequential relief: CESTAT [para 6]

2012-TIOL-1607-CESTAT-AHM

M/s Somabhai Tea Procession Pvt Ltd Vs CCE (Dated : June12, 2012)

Central Excise - Exemption - Benefit of Exemption under Notification No.17/98-CE dated 18.04.98 whereby Tea put up in unit container of content not exceeding 100 grams per unit container was exempted from excise duty - Respondents clearing tea bags of 2.5 gm., 5 gm., 25 gm. etc - ‘Bandha Pack' contained tea bags of 2.5 gm., 5 gm., 25 gm. etc - Held that : The first appellate authority considered the evidences produced before him about actual facts as well as arguments put forth by the assessee - Revenue is unable to contradict the factual matrix in the grounds of appeal - In absence of any contrary evidences, the detailed findings recorded by the first appellate authority, remain unrebutted and Revenue failed to make out a case (Para 7).

Central Excise - Limitation - The assessee has been discharging duty liability on the packages which were more than 100 gms. in weight, but they could be under a bonafide belief that they are not liable to pay central excise duty on the Bandha Pack, as the same had smaller pack, which contained Tea which is less than 100 gms - It is to be noted that the appellant had indicated in the return, the clearance of Tea Packs are less than 100 gms - The findings recorded by the first appellate authority as regards limitation are correct (Para 8).

2012-TIOL-1604-CESTAT-MUM

M/s Larsen & Toubro Ltd Vs CCE (Dated : July 31, 2012)

CENVAT credit cannot be denied simply on the ground that the goods manufactured by the job worker are not received in the factory of the applicant but after payment of duty by job worker are further used for manufacture of goods which are finally cleared to the appellant u/r 4(5)(a) of the CCR, 2004 – Prima facie strong case in favour – Stay petition allowed: CESTAT [para 3]

Also see analysis of the Order 2012-TIOL-1602-CESTAT-DEL

Banmore Cable And Conductors Vs CCE (Dated : April 10, 2012)

Central Excise - Valuation - Equalised Freight - Inclusion of - Freight charge from the place of removal to the place of delivery is deductible from the assessable value even if charged on equalized basis, if mentioned separately in the invoice. (Para 9)

2012-TIOL-1601-CESTAT-MAD

CCE Vs M/s Aasim Industries Ltd (Dated : June 7, 2012)

Central Excise – Appeal by the department – Lower appellate authority had decided the matter in favour of the respondent on merits as well as on limitation – Since the department has chosen not to challenge the same on the count of limitation, it would be an infructuous exercise to go into the appeal on the ground of merit – Revenue appeal dismissed.

2012-TIOL-1600-CESTAT-MUM

Anand Ashok Budhraja Vs CCE (Dated : May 31, 2012)

Service Tax on Activity of Management, maintenance and repairs of Roads has been exempted retrospectively for the period 16.06.2005 to 26.07.2009 by insertion of section 97 in the FA, 1994 by the Finance Act, 2012 – demand not sustainable – orders confirming ST demands set aside and appeals allowed with consequential relief: CESTAT [para 5]

2012-TIOL-1599-CESTAT-MUM

Chennai City Centre Holding Pvt Ltd Vs CST (Dated : June 8, 2012)

Service Tax – Stay/Dispensation of pre-deposit – Maintenance of common areas of commercial mall and collection of charges incurred for such maintenance from the individual shop owners – No prima facie case made out for waiver of pre-deposit – 50% of the balance amount to be paid ordered to be deposited.

2012-TIOL-1598-CESTAT-DEL Smt Beena Goyal Vs CCE (Dated : September 6, 2012)

Service Tax - Stock Broker service - Short payment of service tax on the commission received as sub-broker - Penalty - No case to impose penalty under Section 76 and 78 - Penalty under Section 76 set aside and penalty under Section 78 upheld - Demand of service tax under Business Auxiliary service - Appellant's contention that during the material period, only services rendered by commercial concerns were taxable is acceptable - Demand under Business Auxiliary service set aside.

2012-TIOL-1597-CESTAT-MUM

Shiva Steels Rolling Mills Vs CCE (Dated : October 18, 2012)

CE - Finding that the intention of the applicant was just to delay the decision on their application for waiver of pre-deposit of dues, CESTAT imposes ‘cost' of Rs.50,000/-. [para 3]

Also see analysis of the Order

2012-TIOL-1596-CESTAT-MAD

CCE Vs S & S Power Switch Gear Ltd (Dated : May 2, 2012)

Central Excise – Classification of Circuit Breakers – Remand directions of the Tribunal – In remanding the case earlier, Tribunal by majority held that the demand should be confined to six months period – Commissioner in de novo proceedings applied the 37 B order dated 14.7.1994 prospectively and confirmed the demand only for the period from 14.7.1994 to 31.7.1994 – The de novo order of the Commissioner is in clear violation of the remand directions - Earlier order of the Tribunal having attained finality, is required to be given effect to and it is only the quantification in terms of the said order, which is required to be examined - It is not open to us to go to the merits of the case and to redecide the issue.

2012-TIOL-1595-CESTAT-MAD

M/s SRF Limited Vs CCE (Dated : June 14, 2012)

Central Excise – CENVAT Credit on Furnace Oil used for generation of electricity cleared to other units – Appellant is liable to reverse the CENVAT Credit on Furnace Oil used for generation of such electricity – Matter remanded to the original authority – Penalty – Since there were different decisions of the subject of admissibility of CENVAT credit prevailed during different times and matter finally settled by the Supreme Court, levy of penalty on the appellant may not be called for. 2012-TIOL-1594-CESTAT-BANG

M/s Usha International Ltd Vs CCE (Dated : January 31, 2012)

Central Excise – Limitation - CENVAT – Credit of Service tax paid on imported services on reverse charge mechanism under Section 66A of the Finance Act, 1994 - A ppellant has a clear case against the impugned demand on the ground of limitation - the assessee admittedly filed returns and paid service tax on the gross amount paid to their foreign commission agent as consideration for the service rendered by the latter - Obviously, this fact was within the knowledge of the Department - When the assessee paid duty of excise on their excisable product, they utilized the above credit, which fact was also borne on the relevant returns filed with the Department - Thus the utilization of CENVAT credit was also known to the Department - allegation is clearly untenable on the facts and circumstances which we have already noted. It is not in dispute that the entire demand is beyond the normal period of limitation (Para 3 & 4).

2012-TIOL-1593-CESTAT-BANG

M/s Vem Technologies (P) Ltd Vs CCE (Dated : February 23, 2012)

Central Excise – Exemption Notification – Supplies to DRDO under Notification No.10/97-C.E dated 01.03.1997 – Identical issue arising out of two earlier similar appeals of the same assessee was considered by the Tribunal and decided in favour of appellant (2011-TIOL-1188-CESTAT-BANG) – the substantive issue in the present case is squarely covered in favour of the appellant in earlier appeals - allowed the appeals (Para 3).

2012-TIOL-1579-CESTAT-DEL

M/s Sterling Tools Ltd Vs CCE (Dated : April 20, 2012)

S.4A of CEA, 1944 – clearance of ‘fasteners' to Spare Parts Division of automobile manufacturers are in boxes containing 1 to 10 pieces and admittedly MRP is affixed on them – prima facie since in respect of these goods MRP is required to be declared under the SWM Rules, duty would be payable in terms of valuation arrived at u/s 4A of the CEA, 1944 – Pre-deposit ordered of Rs.20 lakhs: CESTAT [paras 7 & 10]

Clearance of ‘fasteners' to dealers in boxes containing 100 pieces - Even for the period prior to 31.1.2007 when Rule 17 read with Rule 2(j) of the SWM Rules were there, the goods do not appear to be covered by the definition of 'multi-piece packages' as it is not the department's case that each piece was individually packed in retail sale – appellant have a strong case on merits against assessment u/s 4A of the CEA, 1944 in respect of such clearances: CESTAT [paras 8 & 8.1]

Automobile manufacturers purchasing the fasteners from the Appellant for the use in the manufacture of automobile are covered by the definition of industrial consumers and hence, in respect of such clearances there is no requirement under the law for declaration MRP on their packages and in respect of such clearances, the duty would be payable on the transaction value determined under Section 4 & not u/s 4A of the CEA, 1944: CESTAT [para 6]

2012-TIOL-1578-CESTAT-BANG

M/s Wolfra Tech (P) Ltd Vs CCE (Dated : June 15, 2012)

Central Excise - CENAVT - Revenue Neutrality - Non-reversal of CENVAT Credit on Capital Goods at the time of clearance from main unit to other unit of the same company - It is not in dispute that every stage of conversion of thicker to thinner wire is a manufacturing activity - If that be so, all the units of the company are undertaking a manufacturing activity - All the units are separately registered with the Department - Each unit has to maintain the relevant statutory records including CENVAT credit accounts and entitled to take CENVAT credit on the capital goods and inputs received by it from another unit and is liable to pay duty of excise on the manufactured products - Such duty can be paid by utilizing CENVAT credit - In this scenario recognized by Central Excise law, if one unit clears its capital goods 'as such' to another, it has to reverse the CENVAT credit taken thereon - The recipient unit can take such credit - Ultimately, the situation emerges as revenue neutral - There is a revenue-neutral situation and therefore, the Department will not be justified in enforcing the subject demand of duty against the appellant (Para 7 & 9).

2012-TIOL-1577-CESTAT-MUM

M/s Metaclad Industries Vs CCE (Dated : August 31, 2012)

CENVAT – Benefit contained in Notification 22/2009-CE(NT) is to be allowed retrospectively – if credit of the entire excise duty paid by an EOU is not allowed and the same is restricted, it creates a discrimination between units in the DTA and those in the EOU Zone – it will no longer be economically attractive to buy goods from EOU because of lesser amount of credit that would be available – Additional duty paid under sub-section (5) of section 3 of the Customs Tariff Act is available as CENVAT credit even prior to 07.09.2009 – CENVAT is a beneficial provision for reducing the cascading effect of taxation and if the object of CENVAT has to be sub-served the credit should be made available in respect of both the Additional duty of customs – CENVAT credit scheme is not intended to create distortions in the market place and the law also should not be interpreted in such a way so as to create a distortion – it is an accepted legal principle that the law should be interpreted in a harmonious way so as to sub-serve the public policy - Revenue's contention for restricting credit has no rationale and has to be rejected outright - Appeal allowed with consequential relief: CESTAT [paras 5.1, 5.2, 5.3, 5.4, 5.5 & 6]

Also see analysis of the Order 2012-TIOL-1576-CESTAT-BANG

M/s Sealed Air (India) Pvt Ltd Vs CCE (Dated : June 20, 2012)

Central Excise – Stay / Pre-deposit of Tax – CENVAT - The demand relates to finished goods transferred from the old premises of the factory to the new premises - There is a clear finding of the original authority that the assesseee has disposed of the said goods to customers after proper packing and payment of duty utilizing the CENVAT credit taken by them - prima facie case is in favour of the assessee – Pre-deposit waived (Para 5.1 & 6).

2012-TIOL-1575-CESTAT-BANG

M/s Vectra Auto Components Pvt Ltd Vs CCE (Dated : February 07, 2012)

Central Excise – Stay / Pre-deposit of duty – Valuation - Valuation of body fabricating and mounting on chassis supplied free of cost by chassis manufacturers - Since an appeal has been admitted by the Hon'ble apex court in the Audi Automobiles case - (2009-TIOL-1289-CESTAT-DEL) , the said decision is in jeopardy till such time the case is finally decided - the appellant has an arguable case and ordered for pre- deposit of Rs.30 Lakhs (about 1/3 of the duty adjudged) (Para 5).

2012-TIOL-1574-CESTAT-MAD

M/s SRF Ltd Vs CCE (Dated : June 13, 2012)

Central Excise – Interest on differential duty paid by issue of supplementary invoices – In view of the Supreme Court judgement in case of M/s SKF India Ltd, interest is payable – Penalty also upheld, but quantum reduced.

2012-TIOL-1566-CESTAT-MUM

M/s Crompton Greaves Ltd Vs CCE (Dated : July 10, 2012)

CENVAT - Rule 13(2) of the CCR, 2002 was invoked for imposition of penalty while issuing SCN on 19.11.2003 but since the rule was already omitted w.e.f 01.03.2003, no cause for imposition of penalty – there is also no willful mis-statement or suppression with intent to evade payment of duty as required for imposition of penalty u/s 11AC of the CEA, 1944 - however, since against the final order of the Tribunal passed earlier the equivalent penalty was reduced to Rs.1 lakh and which order was not challenged, appellant is not entitled to any refund: CESTAT [paras 7, 8 & 9] Also see analysis of the Order

2012-TIOL-1565-CESTAT-MUM

Endurance Technologies Pvt Ltd Vs CCE, CC & ST (Dated : April 27, 2012)

CENVAT – Cenvatted Inputs sent to job worker by following procedure under rule 4(5)(a) of the CCR, 2004 - Audit pointing out in December, 2005 that inputs sent in March, 2004 not received from job worker – appellant immediately reversing credit along with payment of interest – since the appellant has not taken credit with an intention to evade duty, there is no contravention of the rules or provisions of the Act so as to invite penalty u/s 11AC of the CEA, 1944 – penalty set aside but duty and interest paid are confirmed – Appeal disposed of: CESTAT [para 4]

2012-TIOL-1564-CESTAT-AHM

Additional Commissioner of Central Excise, Customs Vs M/s Sanghi Industries Ltd (Cement Division) (Dated : June 11, 2012)

Central Excise – Refund - Whether the refund claims as per the Notification No. 39/2001-CE dated 31.07.2001 to be restricted to Rs.57,63,275/- or allow the entire amount of Rs.1,50,31,421/- - It is not in dispute that the appellant is eligible for refund of the amount paid through PLA as the unit is situated in Bhuj and was following the procedure as laid down - The first appellate authority had recorded reasonably detailed findings for allowing the appeal of the respondents - The grounds of appeal only raises technicality of the impugned order - It is also to be noted that eligibility to avail Cenvat Credit of Rs.57,63,275/- is not disputed by revenue, their objection is only for availment of such credit in later months - This objection is incorrect, as, if an assessee if otherwise is entitled to credit should not be denied the benefit only on technicality - In the impugned order, the first appellate authority has correctly appreciated the law based upon factual findings (Para 6 & 7).

2012-TIOL-1563-CESTAT-BANG

M/s Exel Rubber Ltd Vs CCE (Dated : February 29, 2012)

Central Excise – Goods manufactured on job-work basis and assessments made provisionally – Finalisation of Provisional Assessments – Whether adjustment of excess duty paid against short payment of duty on monthly basis or annual - Original Authority is directed to consider afresh the claim of the assessee for adjustment of excess payment of duty against short payment of duty upon finalisation of provisional assessments - Such claim shall be considered on monthly basis - In other words, the amount of duty paid in excess for a month covered by a return may be adjusted against the amount of duty short-paid (if any) for the same month - The adjudicating authority shall also determine whether, for the period covered by each return, the incidence of duty paid in excess was borne by the assessee (Para 13).

2012-TIOL-1562-CESTAT-MAD

M/s Indian Oil Corporation Ltd Vs CCE (Dated : June 14, 2012)

Central Excise – Short receipt of inputs – Matter remanded to re-examine the issue in the light of Larger Bench decision in case of M/s Bhuwalka Steel Industries Ltd.

2012-TIOL-1556-CESTAT-DEL

M/s Chaudhry Hammer Works Ltd Vs CCE (Dated : January 17, 2012)

Central Excise - 100% EOU - Job-work by EOU - Limitation - Revenue Neutrality - Stay / Dispensation of pre-deposit - Goods manufactured by EOU on job-work basis to their sister concern, which caries out further manufacture and clears the finished goods on payment of duty. The fact of job-work reflected in the periodical returns submitted to the Department. P rima-facie, the assessee has a good case on limitation as also on revenue neutrality. Stay granted. (Para 11 & 12)

2012-TIOL-1552-CESTAT-AHM

M/s Craft Corner Paper Mills Ltd Vs CCE (Dated : August 28, 2012)

Central Excise – CENVAT Credit - Services received are in relation to the importation of waste paper such as container charges, handling charges incurred in the port etc – Waste paper is used in the manufacture of final products – It cannot be said that the services have no nexus with the final products – Credit is admissible.

Documents for taking credit – Eligibility – As per proviso to Rule 9(2) of the CENVAT Credit Rules, 2004, if the invoice does not contain all the particulars but contains the details of service tax payable, description of the service, assessable value, registration number of the service provider, details of the manufacturer/first stage dealer/second stage dealer or provider of taxable service, the Assistant Commissioner if he is satisfied that services have been received and accounted for can allow the credit - If no verification is done and if no credit is allowed without verifying what is mentioned in the proviso, the existence of the proviso will be of no use to any assessee – Matter is remanded to the original authority to adjudicate the matter afresh. 2012-TIOL-1547-CESTAT-MUM

CCE Vs M/s ACC Machinery Co Ltd (Dated : March 14, 2012)

In case the job worker is wrongly availing the benefit of the notification, the job worker is liable to pay duty and not the supplier of the raw material – duty paid bare chassis sent to job worker for fabrication of cabin and which are cleared to supplier in terms of exemption notfn. 5/98-CE – assessee manufactures bulkers out of the same and clears on payment of duty – there is no merit in Revenue seeking to add the cabin making charges into AV of bulkers – so also, service charges collected by assessee from customer for co-ordination and procurement of materials is included in AV – Revenue and assessee Appeals dismissed: CESTAT [paras 4 & 5]

Also see analysis of the Order

2012-TIOL-1546-CESTAT-BANG

M/s Bramhani Industries Ltd Vs CCE (Dated : May 28, 2012)

Central Excise – Stay/Pre-deposit of Duty - CENVAT Credit – The dispute relates to eligibility of CENVAT credit taken on Capital Goods/Input services used in laying down railway line for about 10 Kms. from the factory to the nearest railway station and in laying the pipeline from the factory to nearby dam – Appellants gave undertaking that the credit would not be utilised till the disposal of the appeals – Stay Granted (Para 4 &7).

2012-TIOL-1545-CESTAT-BANG

M/s Calicut Rubber Company Vs CCE (Dated : February 23, 2012)

Central Excise – Stay / Pre-deposit of Duty – Demand - The fact that the seized records are not available is not in dispute - As of now, the appellant stands by the original statements given by them under Section 14 of the Central Excise Act - It is on the basis of a scientific formula given in one of those statements that the Commissioner, in de novo proceedings, worked out the demand of duty - In these peculiar facts and circumstances of this case, ordered for pre-deposit of Rs. 6 Lakhs (Para 4).

2012-TIOL-1544-CESTAT-BANG

CCE & CC Vs M/s Hemadri Cement Ltd (HCL) (Dated : March 2, 2012) Central Excise – CENVAT – Eligibility of CENVAT Credit on MS Plates, Angles, Channels, Coils, etc. used in reconditioning of plant and machinery - the respondent appears to have a formidable case based on the Second Explanation to the definition of 'input' under Rule 2(k) - the Second Explanation to the definition appears to work in favour of the respondent - It is not in dispute that some of the structural items were used for replacement of worn-out parts of the machinery - Where the Second Explanation confers ‘input status' on goods used in the manufacture of capital goods which are further used in the factory, it cannot be disputed that such status can be extended to goods used in the replacement of parts of capital goods - the respondent is eligible for input duty credit on the structural materials used for reconditioning of existing capital goods (Para 7).

Central Excise – CENVAT – Eligibility of CENVAT Credit on MS Plates, Angles, Channels, Coils, etc., used in fabrication of the Capital Goods - the issue is squarely supported by the Second Explanation to the definition of 'input' (Para 8).

Central Excise – CENVAT – Eligibility of CENVAT Credit on MS Plates, Angles, Channels, Coils, etc., used to fabricate structural support for erecting capital goods - in the case of Saraswati Sugar Mills (2011-TIOL-73-SC-CX) , the Supreme Court refused to recognize structural support as 'capital goods' under Rule 57Q of the erstwhile Central Excise Rules, 1944 - If the structural support by itself cannot be capital goods, the structural materials like MS plates, angles used in its fabrication cannot qualify to be 'inputs' under Rule 2(k) read with the Second Explanation thereto - the present appeal of the department succeeds (Para 8).

2012-TIOL-1543-CESTAT-BANG

M/s Hi-Build Coating Pvt Ltd Vs CCE (Dated : June 22, 2012)

Central Excise – Stay / Pre-deposit of Duty – CENVAT – Taking of CENVAT Credit on the strength of cash receipts issued by the transporter - The lower appellate authority is seen to have recorded a finding to the effect that the transporters paid service tax albeit in violation of Rule 2(1)(d)(v) of the Service Tax Rules, 1994 - The only reason for denial of CENVAT credit to the appellant is that any document prescribed under Rule 9 ibid was not used for availing the benefit - A similar factual situation was considered in the case Mandev Tubes (2009-TIOL-1231-CESTAT-AHM) and a similar benefit of CENVAT credit was held to be admissible to the assessee – Waived pre- deposit (Para 2).

2012-TIOL-1540-CESTAT-MUM

B R Steel Products Pvt Ltd Vs CCE (Dated : July 23, 2012)

Notfn. 23/2003-CE - Applicant exporting concentrated ceramic colours and clearing the diluted ceramic colours to DTA by claiming the benefit of the Notification – Revenue denying the benefit on the ground that what is cleared to DTA is not similar - similar goods means which are similar or which belong to the same class of the goods exported – Prima facie benefit of notification available – Pre-deposit of dues waived and stay granted: CESTAT [para 5] Also see analysis of the Order

2012-TIOL-1539-CESTAT-AHM

M/s Castrol India Ltd Vs CCE (Dated : June 28, 2012)

Central Excise – Stay / Pre-deposit of Duty – CENVAT – Credit denied on the ground that the Input Service Distributor (ISD) availed CENVAT credit of the invoices issued by the service provider which was issued 14 days of provision of the services - The issue is a prima-facie non-starter - The provisions of Service Tax Rules prima facie cannot be invoked for denying the CENVAT credit of the input services which were availed by the ISD and distributed - It is undisputed that the ISD has received the services and taken the credit and distributed services to various locations, including current appellant - The appellants have made out a prima-facie case for the waiver of the pre-deposit of the amounts involved (Para 3).

2012-TIOL-1538-CESTAT-BANG

M/s Federal Mogul TPR ( India) Ltd Vs CCE (Dated : June 21, 2012)

Central Excise – Stay / Pre-deposit of Duty – CENVAT – The appellant availed the Credit based on the invoice issued by the Service Provider - The Service Provider paid the service tax due for the month of November, 2006 only in January, 2007 and, therefore, a SCN was issued for recover the credit and imposition of penalties on the appellants - the Commissioner has not confirmed the demand of service tax on the appellant - This is a case where the service provider has defaulted/delayed in paying the service tax and the said service provider has not been included as a noticee in the present proceedings - prima facie, the appellant has made out a case for waiver of penalty imposed on them (Para 5 & 6).

2012-TIOL-1537-CESTAT-BANG

M/s Hindustan Machine Tools Ltd Vs CCE (Dated : June 6, 2012)

Central Excise – Stay / Pre-deposit of Duty – Demand – Denial of benefit of Notification No.10/97-CE dated 1/3/97 – prima facie case is in favour of the appellant on the strength of the certificates of public-funded research institutions and the decisions cited by the ld consultant - Pre-deposit waived (Para 3). 2012-TIOL-1528-CESTAT-DEL

M/s Ykk India Pvt Ltd Vs CCE (Dated : September 19, 2012)

CE - Brass scrap generated out of CENVATTED inputs during manufacturing of zip fasteners sent to job work under rule 4(5)(a) of the CCR, 2004 for conversion into brass wire – Revenue stand is that rule 4(5)(a) is not applicable and the assessee is required to remove scrap on payment of duty – issue raised is interpretation of rule which requires serious consideration but since there is prima facie merit in the contention that the entire exercise is revenue neutral, pre-deposit waived and stay application allowed: CESTAT [para 5]

Also see analysis of the Order

2012-TIOL-1527-CESTAT-BANG

M/s Inox Air Products Ltd Vs CCE (Dated : June11, 2012)

Central Excise – Valuation - Inclusion of Facility Charges – Followed the decision of Apex Court judgment in Indian Oxygen Ltd. (2002-TIOL-88-SC-CX) - Charges not included as not related to manufacturing activity and facility provided to some buyers only - Section 4 of Central Excise Act, 1944 (Para 2 & 3).

2012-TIOL-1526-CESTAT-BANG

M/s Embiotic Laboratories Pvt Ltd Vs CCE (Dated : November 23, 2011)

Central Excise – Valuation – Valuation of Physician Samples manufactured on behalf of third parties – In respect of samples sold by the applicant to the brand owning third parties, sale is involved and hence, the demand is not sustainable – Duty payable on transaction value (Para 5.1).

Central Excise – Valuation – Valuation of Physician Samples manufactured on their own account – Followed the Larger Bench decision of Tribunal in the case of Cadila Pharmaceuticals Ltd. (2008-TIOL-1668-CESTAT-AHM-LB) - Proportionate value based on MRP should be adopted in respect of physician samples - prima facie, extended period of limitation cannot be invoked - Ordered for Pre-deposit of Rs.10 Lakhs (Para 5.2 & 6).

2012-TIOL-1525-CESTAT-MUM Grindwell Norton Ltd Vs CCE (Dated: May 25, 2012)

CENVAT Credit – rule 2(l) of CCR, 2004 - whether Courier Service is an Input Service – appellant not producing documentary evidence to show that the ownership remained with him till the goods were delivered at the premises of the customer and that the courier charges were part of the price charged for the goods – since evidence available now, matter remanded to adjudicating authority for verification – appeal allowed by way of remand: CESTAT [para 6]

2012-TIOL-1524-CESTAT-MUM

M/s Bilt Graphic Paper Products Ltd Vs CCE (Dated : March 30, 2012)

CX - Sugar Cess is levied by the Ministry of Consumer Affairs, Food & Public Distribution and hence is not to be taken into consideration for the purpose of levy of Education Cess and Higher Education Cess: CESTAT [para 5]

2012-TIOL-1518-CESTAT-MUM

M/s Nahar Textiles Pvt Ltd Vs CCE (Dated: May 29, 2012)

CE – Refund of deemed credit available under notfn. 54/2001-CE(N.T) - There is no requirement of fixing RSP on the readymade garments exported – RMG are also not notified u/s 4A of the CEA, 1944 – in such a situation, there is no question of applying the contents of notfn. 20/2001-CE(NT) to reject a part of the refund claim – Appeals allowed: CESTAT [paras 8 & 9]

Also see analysis of the Order

2012-TIOL-1517-CESTAT-MUM

CCE Vs Tata Motors Ltd (Dated: May 25, 2012)

CE – Rule 7(4) of CER, 2002 - Assessee is not liable to pay interest on the differential duty paid by them before the finalization of provisional assessment – Revenue appeal dismissed: CESTAT [paras 4 & 5]

2012-TIOL-1516-CESTAT-MUM Suyadh Chemicals Vs CCE (Dated : March 21, 2012)

CENVAT Credit availed on the strength of endorsed bill of Entry – BE is one of the specified documents in rule 9 of CCR, 2004 – there is no specification in the rule that the Bill of Entry should not be an endorsed one – there is no dispute about payment of CVD or receipt of inputs in the factory – applicant has made a strong prima facie case in favour – pre-deposit waived and stay granted: CESTAT [para 5]

2012-TIOL-1515-CESTAT-BANG

M/s Sovereign Agro Products Pvt Ltd Vs CCE (Dated : January 25, 2012)

Central Excise – Stay/Pre-deposit - Classification - the appellants have heavily relied on the Order-in-Appeal passed by the Commissioner (A) pertaining to other party wherein classification of similar product was dealt - the appellant has also not brought out the reasons for claiming parity between their product and the product of other party decided by the Commissioner (A) – the appellant cannot be said to have made out a prima facie case for waiver of pre-deposit – Ordered to pre-deposit 10% of the duty demanded in each case (Para 4).

2012-TIOL-1514-CESTAT-AHM

M/s Dynamic Industries Vs CCE (Dated : June 11.2012)

Central Excise – CENVAT – Denial of Credit of Service Tax paid on Input Services such as CHA Service, Shipping Agent's and Container Services and Commission paid to overseas agents for export of goods on the ground that the services related to clearance of finished goods beyond the place of removal - In respect of FOB exports the place of removal has to be treated as the Port - Input service definition is an inclusive definition of services used by the manufacturer directly or indirectly in or in relation to manufacture and clearance and also relating to business activities and specified categories would be admissible (Para 3).

2012-TIOL-1505-CESTAT-MUM

IVP Ltd Vs CCE (Dated : September 12, 2012)

CX - Once the duty on final products has been accepted by the department, CENVAT credit availed need not be reversed even if the activity does not amount to manufacture: CESTAT [paras 7 & 8]

Also see analysis of the Order 2012-TIOL-1504-CESTAT-BANG

M/s The Sirpur Paper Mills Ltd Vs CC, CE & ST (Dated : March 16, 2012)

Central Excise – Stay /Pre-deposit of Duty – Refunds – Unjust Enrichment - It is not in dispute that the final orders passed by this Tribunal on similar sets of facts are all in favour of the assessee and none of these orders was stayed by the appellate court - If that be so, the Tribunal's decision is binding on the departmental authorities and they cannot adhere to the view taken by the Commissioner (Appeals) in the impugned order, regardless of the overriding view of the Tribunal - A basic tenet of judicial discipline is involved in this aspect of the case - It is disturbing that the learned Commissioner (Appeals) took a view inconsistent with the view expressed by himself in earlier similar cases of the assessee - No wonder, he refused to follow the earlier decisions in favour of the assessee rendered by his predecessors-in-office - Such inconsistencies are also extraneous to judicial discipline - The stay applications stand allowed (Para 5, 5.1 & 5.2).

2012-TIOL-1503-CESTAT-BANG

Mr T B Gopinath Vs CCE (Dated : June 14, 2012)

Central Excise – Demand – Natural Justice - It is abundantly clear from the impugned order that the ld Commissioner was carrying into effect the Tribunal's remand order by disclosing to the assessee the manner of computation of duty and giving him a reasonable opportunity of making submissions - This opportunity was availed by the assessee, who filed written submissions along with calculation sheet showing the particulars of his abatement claims and also showing the duty amount which, according to him, was payable to the Government - There is no iota of truth in the present grievance of the appellant that natural justice was denied to him (Para 5).

2012-TIOL-1502-CESTAT-BANG

CCE Vs M/s Vishwanantha Sugars Ltd (Dated : May 11, 2012)

Central Excise – CENVAT – Denial of CENVAT Credit on structural items used for the fabrication of sugar silos and weighbridge in the factory which were embedded to earth and became non-excisable – Credit denied in respect of goods used in the manufacture sugar Silos and Weighbridge - the impugned order is sustained to the limited extent of grant of CENVAT credit of Rs.78,185/- Any further CENVAT Credit allowed by the Commissioner (Appeals) shall stand denied to the respondent - The original authority is directed to make correct quantification of the credit allowed in this order - The matter is sent back to the original authority for this limited purpose (Para 3, 4 & 5). 2012-TIOL-1500-CESTAT-MUM

Sriroz Consultants Pvt Ltd Vs CCE (Dated : April 30, 2012)

CE - Applicants are only supplying galvanized pipes, shade net, polyethylene sheets, G.I wires, nylon ropes, nuts and bolts to farmers who in turn themselves make the ‘green house' – there is no evidence on record to allege that the applicant has manufactured ‘green house' classifiable under heading 9406 of the Tariff and cleared the same without payment of duty – similar issue dealt with in the case of Srihari Greenhouse Pvt. Ltd. (2012-TIOL-349-CESTAT-Mum) wherein an unconditional waiver of pre-deposit and stay was granted – following said decision, pre-deposit waived and stay granted: CESTAT [para 4]

2012-TIOL-1496-CESTAT-BANG

M/s Sri Shiv Shakti Steel & Alloys Vs CCE (Dated : February 24, 2012)

Central Excise – CENVAT Credit - Availing of CENVAT Credit on MS Angles, Channels, etc., which are used for fabrication of certain components of Pollution Control Equipments during the period between March 2007 and August, 2008 –Chartered Engineer's certificate was not considered by the original authority - authority missed the question whether the subject items had been used for fabricating cages and chutes for pollution control equipments as certified by the Chartered Engineer - If the filter cages and chutes referred to in the certificate are shown to be components/accessories of pollution control equipment and if the subject items are shown to have been used to fabricate the cages and chutes, the appellant can legitimately claim CENVAT credit on these items as capital goods – Remanded to original authority (Para 2 & 3).

2012-TIOL-1494-CESTAT-DEL

M/s Kisan Sahkari Chinni Mills Ltd Vs CCE (Dated :June 28, 2012)

Actions of the adjudicating authority and the appellate authority show a design to refuse the refund under one pretext or the other - It is obnoxious that such action has the approval of two adjudicating authorities and two different officers at the level of Commissioner and speaks volumes about the state of affairs - Appeal allowed: CESTAT [para 2]

Amount to be refunded along with interest from the day commencing after expiry of three months from the date of filing of the original refund application to the date of actual refund of money to the appellant – Counsel at liberty to mention this matter before the Tribunal if refund is not sanctioned before 30.09.2012: CESTAT [paras 3 & 4]

Also see analysis of the Order 2012-TIOL-1493-CESTAT-BANG

CCE Vs M/s Bharath Beedi Works (P) Ltd (Dated : March 12, 2012)

Central Excise - Classification - Classification of Biris - Undisputedly, the manufacturing activities of Biris were undertaken without the aid of machines - Only the packing materials and labels were manufactured that too by the job workers with the aid of machines - In respect of such labels and wrappers, the job workers are the manufacturers - Mere use of such wrappers and labels manufactured with the aid of machines for packing cannot lead to a conclusion that the biris manufactured should be treated as ‘manufactured with the aid of machine' - No merit in the appeals filed by the department (Para 9).

2012-TIOL-1492-CESTAT-BANG

M/s Bharat Petroleum Corporation Ltd Vs CCE, CC & ST (Dated : March 29, 2012)

Central Excise - Stay / Pre-deposit of Duty - CENVAT - Denial of CENVAT Credit on certain items used for erecting and installing oxygen plant and boiler plant - prima facie , it is not in dispute that the oxygen plant and boiler plant were used by the appellant for the manufacture of excisable products - The fact remains that all the materials in question were procured by the appellant from the suppliers under invoices raised on the former - As the oxygen and boiler plants were undisputedly used for manufacture of excisable products, a link seems to have been established between the materials in question and the manufacture of excisable products in the factory by the appellant - Pre-deposit waived (Para 2).

2012-TIOL-1491-CESTAT-BANG

M/s APL Peroxy Chemicals Ltd Vs CCE (Dated : June 18, 2012)

100% EOU - Stay / Pre-deposit of Duty - At the time of de-bonding from 100% EOU Scheme the appellant had a balance of CENVAT credit of Rs.6,25,949/- in their PLA and the said amount transferred to the PLA of the first unit - The demand is on the ground that there is no rule or provision for transfer of balance CENVAT credit from one PLA account to another PLA - the balance amount in PLA could have been obtained as refund in cash and deposited in the other account - There is no time limit for taking refund of balance in PLA - If there is any violation, it is only technical in nature and hence, there is no justification for any demand and imposition of penalty - Pre-deposit waived (Para 3 & 4). 2012-TIOL-1490-CESTAT-BANG

CCE Vs M/s Ansal Granicom (P) Ltd (Dated : March 12, 2012)

Central Excise – CENVAT – Limitation - Wrong availment of Additional Duty of Customs (CVD) paid by utilizing DEPB Scrips as CENVAT Credit and Wrong availment of CENVAT Credit on Capital Goods on which claiming deprecation under Section 32 of the Income Tax Act, 1961 – The relevant show-cause notices were issued far beyond the normal period of limitation prescribed under Section 11A(i) of the Central Excise Act, without invoking the extended period of limitation - For invoking the extended period of limitation prescribed under the proviso to Section 11A(1) of the Act, the department has to allege and establish fraud, collusion, willful suppression or misstatement of facts or contravention of any provision of law with intent to evade payment of duty, against the defaulter - This did not happen in the present case - The requisite grounds were not raised in any of the SCNs for invoking the larger period of limitation - In other words, the proviso to Section 11A(1) of the Act was not invoked - Therefore the entire demand has to be held to be time-barred (Para 4).

2012-TIOL-1485-CESTAT-MUM

Pidilite Industries Ltd Vs CCE (Dated : September 18, 2012)

Cenvatted Inputs cleared as waste and scrap – pre-deposit ordered of Rs.771/- for getting Stay: CESTAT.

2012-TIOL-1483-CESTAT-BANG

M/s Mic Electronic Ltd Vs CC & CE (Dated : June 18, 2012)

Central Excise – Valuation – Sale of Digital Loop Carriers (DLC) Equipment and related Operation Software on Separate Invoices - DLC equipments manufactured by the appellants were supplied to BEL, who in turn supplied to MTNL - When the equipments were received by MTNL, the software was loaded into the equipments and testing completed - It is the consistent stand of the appellant that the equipments have been cleared from the factory without the software being loaded in the equipments - No evidence is relied upon by the department to disprove this claim - The impugned software is no doubt customized software usable only with the DLCs - DLCs do not become dysfunctional without the impugned software as they can be used as 2W type of DLC - Separate classification of the impugned software under Chapter subheading 8524 and clearing the said software without payment of duty is in order - There is no justification for including value of such software in the value of DLC equipments (Para 9 & 10).

Also see analysis of the Order 2012-TIOL-1482-CESTAT-MUM

Acqua Bisleri (India) Ltd Vs CCE (Dated : May 16, 2012)

S.4A of CEA, 1944 - Valuation - non-refundable amount taken from customers as security deposit in respect of reusable containers used in manufacture of bottled water - revenue wants to add this amount to the MRP - appellant submitting that the cost has already been amortized and included in MRP - in the second round of proceedings, the Tribunal had remanded the matter with a direction to conduct an audit u/s 14A of the CEA, 1944 to ascertain whether the facts certified by the CA was correct - without conducting any such audit the CCE confirmed the duty demand - matter again remanded: CESTAT [paras 9 & 10]

2012-TIOL-1481-CESTAT-BANG

CCE Vs M/s BPCL (Dated : June 7, 2012)

Central Excise – Valuation – Sale of petroleum products through Company Owned Company Operated (COCO) Outlets – Inclusion of transportation charges from terminal points to COCO Outlets - Oil companies were receiving Petroleum products from various refineries located at different places in India, under bond without payment of duty at their "terminal points" and storing without payment of duty - They were clearing the products on payment of duty from Terminal Points - There is no basis to consider the COCO outlets as the "place of removal" - It is not the case of the department that the petroleum products were received in COCO outlets without payment of duty and sold from the said COCO outlets only on payment of duty - There is no justification to treat the COCO outlets as the "place of removal" - Even otherwise, the basis on which the COCO outlets are treated as depots cannot be appreciated - In common parlance, a depot is meant to be a place facilitating whole sale trade whereas the COCO outlets are obviously retail outlets - Since in respect of transfers to COCO outlets, the price applicable to dealers at the “place of removal” has been adopted, the same is legal and proper (Para 6.2 & 6.3).

2012-TIOL-1480-CESTAT-MUM

Cane Agro Energy (India), Ltd Vs CCE (Dated : August 13, 2012)

CENVAT - Bagasse and press-mud emerging during the course of manufacture of sugar and molasses – these are waste products and no amount under rule 6 of the CCR, 2004 can be demanded from the assessee against the exempted clearances made by them – Pre-deposit waived and stay granted: CESTAT [para 5]

2012-TIOL-1479-CESTAT-DEL M/s Dharampal Satyapal Ltd Vs CCE (Dated : February 9, 2012)

Central Excise – Manufacture of pan masala and gutkha – Initial abatements fixed by Deputy Commissioner disallowed by Commissioner – Provisions of Pan Masala Packing Machines Rules, 2008 cannot be interpreted from the language used in the Notification No.42/08-CE more so, when in terms of para 2 of the said notification, the number of packing machines shall be determined in terms of said Rules and in view of the second proviso to Rule 8, even if an installed packing machine was not working during a month, the same shall be deemed to be operating packing machines during the whole month and accordingly duty in respect of that machine would be charged as if it had been operated during the entire month and not for a fraction of the month for which it was actually operational – Prima facie no case in favour of appellant – Pre-deposit of Rs. 6 crores ordered

2012-TIOL-1475-CESTAT-BANG

CCE Vs M/s B K Office Needs Pvt Ltd (Dated : March 12, 2012)

Central Excise – Non-application of Mind - the Commissioner (Appeals) did not record a speaking order on the issue agitated before him - Commissioner (Appeals) chose to make a reference to an order passed by his Chennai counterpart and to dispose of the case in one line - This kind of orders cannot be upheld as it is incumbent on the appellate authority to discuss the issue and record its decision thereon with reasons - the impugned order is non-speaking and hence liable to be set aside (Para 4 & 5).

2012-TIOL-1473-CESTAT-MUM

M/s Sainath Incorporated Vs CCE (Dated : June 15, 2012)

CE - Pre-deposit ordered by Commissioner(A) paid but fact not communicated to Commr(A) who resultantly dismissed appeal – application for restoration was also rejected citing the ground that the Commr(A) has no power to restore a dismissed appeal – Since verification required of records of the case, order of Commr(A) set aside and matter remanded to adjudication authority: CESTAT [para 4]

2012-TIOL-1467-CESTAT-AHM

M/s 20 Microns Ltd Vs CCE (Dated : September 9, 2012)

Appellant is engaged in the activity of grinding/pulverizing of mineral rocks into mineral powder, of various micron sizes. Such powder is sold in the market, under different product name, based on its micronized mesh # size. At the time of pulverizing / grinding of marble chips, the Appellant was mixing approx. 1% marble powder in the grinding/pulverizing process, which is done to avoid lump formation and to get uniformly pulverized powder. Impugned order has confirmed the duty demand on marble powder (originally classified by the Appellant under CETH 2517 4100(marble powder), attracting NIL rate of duty), by classifying the same under CETH 3824 9090(miscellaneous chemicals), which otherwise attracts Central Excise duty.

Held : First of all, admittedly, the composition of the calcium carbonate and magnesium carbonate in both raw material as well as finished product is almost same; the raw material suppliers have said that what they have supplied is also marble powder; there is no dispute that the appellants are not adding anything other than the marble and the marble powder received to make the final product; no evidence has been produced to show that the finished goods is anything other than what has been claimed by the appellant; no evidence has been produced to show that the appellants are not adding marble powder, but adding something else and resulting in mixture of two products when grinding is done; use of marble powder of a different grade as claimed by the appellant has not been rebutted by any evidence and therefore, the product continues to be under Chapter 25 since the exclusion in the Note 1 to Chapter 25 cannot apply to the product; further, according to Note 3 of Chapter 25, any product classifiable under Heading 2517 and any other heading of this chapter are to be classified under Heading 2517 only; even if the marble powder is considered to have been mixed for grinding, this Chapter covers the appellant's case. Chapter 38, as submitted, is a residual chapter as compared to Chapter 25 and therefore, specific heading has to be preferred to the residual heading.

The product manufactured by the appellant has been correctly classified and the impugned order cannot sustain.

2012-TIOL-1466-CESTAT-MUM

M/s NEW ERA Adhesive Industries Vs CCE (Dated : March 21, 2012)

CE - While opting for SSI exemption assessee is not required to reverse the CENVAT credit – strong prima facie case in favour in view of P&H decision in CNC Commercial Ltd. – pre-deposit waived and stay granted: CESTAT [paras 5 & 6]

Also see analysis of the Order

2012-TIOL-1465-CESTAT-KOL

M/s Tata Motors Ltd Vs CCE & ST (Dated : August 6, 2012)

Central Excise - Exemption Notification - Post-clearance conditions - Fulfillment of - Demand - Stay / Dispensation of pre-deposit - Revenue denied the assessee the benefit of Notification No.108/95-CE dated 28.08.1995 as amended on the ground that on completion of the project, the goods supplied by the assessee would not remain with the contractor or with the project, in view of the Explanation 2 to the Notification.

HELD - Explanation 2 to Notification No. 108/95-CE would mean that the goods supplied to projects financed by United Nations should not be withdrawn from the on- going project. In the instant case, the goods are still into the project and are not withdrawn from the project. Prima facie case made out for grant of stay. (Para 4)

2012-TIOL-1463-CESTAT-BANG

M/s ASK Brothers Ltd Vs CCE & ST (Dated : March 16, 2012)

Central Excise – Penalty – Imposition of Penalty under Section 11 AC of the Central Excise Act, 1944 - There was no evidence regarding suppression of facts, fraud etc. alleged - There is no allegation of suppression supported by any evidence - The appellant on their own paid the entire duty involved and interest before issue of show- cause notice, though it is claimed that substantial part of the demand is time barred - This is not a case for imposing penalty under Section 11AC (Para 5).

2012-TIOL-1462-CESTAT-BANG

M/s Vectra Auto Components Pvt Ltd Vs CCE (Dated : June 18, 2012)

Central Excise – Stay / Pre-deposit of Duty – Under-valuation – There is a prima facie case for the appellant inasmuch as the question whether the chassis received by the appellant for body building were undervalued by Tata Motors Limited is one which is apparently still under adjudication at Jamshedpur - The proceedings against the appellant are, therefore, prima facie unsustainable in law – Pre-deposit Waived (Para 2).

2012-TIOL-1456-CESTAT-AHM

M/s Solid And Correct Engineering Works Vs CCE (Dated : July 30, 2012)

Central Excise - SSI Exemption - Place of manufacture - Jurisdiction - Limitation - In the earlier round of litigation the Supreme Court held that setting up of an Asphalt Drum Mix Plant at buyers' premises by using duty paid components amounts to manufacture of excisable goods and held that manufacturing unit of components with a brand name were not eligible for the benefit of SSI exemption. Regarding the aspect of limitation, jurisdiction and other contentions the matter was remanded to the Tribunal.

ORDERED - Theaspect of limitation, availability of Cenvat Credit, revenue neutrality, jurisdiction and also interpretation of statute has to be made on the basis of judicial pronouncements now available and facts of the case. Whether Commissioner could not have issued the SCN at all or whether it is a rectifiable error is also a matter which requires fresh consideration. Hence, matter remanded to Commissioner to examine all the issues afresh. (Para 18) 2012-TIOL-1452-CESTAT-BANG

Alcatel Lucent India Ltd Vs CCE (Dated : March 16, 2012)

Central Excise – Penalty – it is not in dispute that the interest on differential duty was not paid by the assessee even when the liability was pointed out by the departmental auditors - It appears that the Supreme Court's decision in the case of SKF Ltd. (2009- TIOL-82-SC-CX) was known to the assessee about the time when their records were audited by the officers of the department - They chose to pay the amount only after receipt of the show-cause notice - This conduct of the appellant certainly invited the penal provisions of Rule 25 - the adjudicating authority was extremely fair to the assessee - There is no reason to interfere with its decision (Para 4).

2012-TIOL-1451-CESTAT-BANG

M/s Micro Labs Ltd Vs CCE (Dated : May 25, 2012)

Central Excise – Stay / Pre-deposit of Duty – CENVAT – Denial of Input Credits services on the ground that the same is used for dutiable as well as exempted goods (trading goods) - the SCNs were issued by the department in a confused state of mind - It is not the case of the department that any duty or tax was payable on the trading activity - If that be the case, there is no question of any part of the input service tax credit being used for any purpose associated with the trading activity - The entire credit was utilized for payment of duty of excise on the dutiable final products - The input service distributor cannot be found fault with on the basis of any commissions or omissions of the manufacturing units - Prima facie, the manufacturing units were lawfully utilizing the entire credit for payment of duty on the dutiable final products - Trading activity was not one of the taxable services under Section 65 of the Finance Act 1994 and there was no question of payment of service tax on that activity by the manufacturing units of the company - Prima facie, the manufacturing units could not have been expected to maintain separate accounts – SCNs appear to disclose self- contradictory stand of the revenue with reference to the fact of the case – Valid grounds for waiver of pre-deposit (Para 4).

2012-TIOL-1450-CESTAT-BANG

M/s Ultra Tech Cements Ltd Vs CCE (Dated : January 19, 2012)

Central Excise – Stay / Pre-deposit of Duty – Valuation – Clearance of Goods to sister units – Followed the decision of Ispat Industries Ltd. (2007-TIOL-245-CESTAT-MUM- LB) – On m erits, prima facie, there is no case for appellants (Para 4).

Central Excise – Stay / Pre-deposit of Duty – Revenue Neutrality - the appellant can claim a revenue-neutral situation in this case inasmuch as CENVAT credit of any duty paid by the appellant would be available to the sister unit - The above benefit, however, cannot be claimed in respect of the goods cleared to RMC unit which admittedly did not manufacture dutiable goods by making use of the cement supplied by the assessee – Ordered for pre-deposit entire amount of duty demanded in respect of the goods supplied to RMC unit (Para 5).

2012-TIOL-1449-CESTAT-AHM

M/s Munjal Auto Industries Ltd Vs CCE (Dated : July 26, 2012)

CENVAT denied on the ground that duty was paid by consignor under the cover of Supplementary invoices after detection of evasion by department suppression invoked in SCN - against similarly placed consignees located in and around Delhi, the CCE, Delhi-III has dropped proceedings - pre-deposit waived and stay granted: CESTAT [paras 5 & 6]

Also see analysis of the Order

2012-TIOL-1448-CESTAT-DEL

M/s Shankar Products Vs CCE (Dated : June 27, 2012)

Central Excise - Demand - Limitation - When a show cause notice invoking extended period has been issued for certain period on the basis of certain set of facts, for subsequent period, the department cannot invoke extended period for demand of duty on the basis of the same set of facts. (Para 7)

2012-TIOL-1447-CESTAT-DEL

M/s MSS Food Processors Vs CCE (Dated : April 18, 2012)

Central Excise - Fixation of Production Capacity - Pan Masala Packing Machines - Compounded Levy - Denial of Abatement - Procedural lapses - Stay / Dispensation of pre-deposit - The reasoning adopted by the Commissioner (Appeals) for denial of abatement is in the nature of doubts based on assumptions and presumptions and not on any concrete evidence on record. The panchanamas on record indicate the dates of sealing and de-sealing of the machines. Prima-facie case made out for grant of stay. (Para 13)

2012-TIOL-1446-CESTAT-DEL Fabrico India Pvt Ltd Vs CCE (Dated : June 27, 2012)

Central Excise - CENVAT - Shifting of factory to another site - Transfer of credit - Rule 10(1) of Cenvat Credit Rules, 2004, provides that a manufacturer of final product shall be entitled to transfer of the unutilized cenvat credit to the transferred factory provided he shifts his factory at another site and also fulfills the requirement of Rule 10(3) of Cenvat Credit Rules, 2004. The word 'another site' used in Rule 10(1) of Cenvat Credit Rules means the site other than the factory which is being shifted and not a a new site where there was no production unit in existence. Rule 10(3) of the Cenvat Credit Rules provides that the transfer of cenvat credit under Rule 10(1) shall be allowed if the stock of inputs as such or in process, or the capital goods is also transferred along with factory. If there is no inputs in the stock, there is no occasion for transferring the inputs to the new factory. Admittedly, the assessee can transfer only the capital goods to another site and the condition of Rule 10(3) of Cenvat Credit Rules for transfer of cenvat credit is fulfilled. Transfer of cenvat credit to another factory site is allowed. (Para 15)

2012-TIOL-1440-CESTAT-BANG

M/s Rayalaseema Concrete Sleepers (P) Ltd Vs CCE (Dated : August 22, 2012)

Central Excise - 'ad interim stay' - The Additional Commissioner had demanded duty of nearly Rs.26 Lakhs, which was modified by the Commissioner (Appeals) but without quantifying the revised demand - In the normal course, the Commissioner (Appeals) should have required the original authority to quantify the revised demand - The Range Superintendent appears to have, on his own accord, done the exercise of requantification of duty - The aforesaid letter was issued to demand such duty - After considering all aspects of this case, the demand worked out by the Superintendent without concurrence of the original authority should not be enforced during the pendency of the appeal - The prayer for interim stay of recovery is granted (Para 2).

Also see analysis of the Order

2012-TIOL-1439-CESTAT-MUM

Bekaert Carding Solutions Pvt Ltd Vs CCE (Dated : April 20, 2012)

CE - Appellant importing second hand setting machines from their principals in UK and taking CENVAT credit of the CVD - after reconditioning, exporting the same to China on payment of duty under claim for rebate - rebate claim rejected and SCN also issued alleging that since the activity does not amount to manufacture CENVAT credit is inadmissible - payment of duty in excess of the credit availed tantamount to reversal of credit and there is no need to once again reverse the same - appeal allowed with consequential relief: CESTAT [para 5] 2012-TIOL-1438-CESTAT-KOL

M/s Anvil Cables (P) Ltd Vs CCE & ST (Dated : April 25, 2012)

Central Excise - Condonation of delay in filing appeal before Tribunal - Three applications are filed for condonation of delay ranging from 83 days to 719 days. On reading of all these Affidavits, it is clear that these Affidavits are contradictory, vague and evasive. These Affidavits do not explain date-wise reason for delay in filing the Appeals. COD applications dismissed. (Para 4.4)

2012-TIOL-1437-CESTAT-KOL

M/s Amba Rerolling Mill Pvt Ltd Vs CCE (Dated : July 3, 2012)

Central Excise - Principles of natural justice - Personal hearing - Adjournment - The approach and attitude of the assessee clearly indicate that they have never been serious in participating in the adjudication proceedings and rebut the allegation leveled against them in the Show Cause Notice. Prima facie there is no merit in the argument that there is a serious violation of principle of natural justice of not allowing further adjournment by the Adjudicating Authority who gave three opportunities of hearing as per the adjudication procedure laid down at Section 33A of the Central Excise Act, 1944. (Para 10)

Clandestine clearances - Evidence - Admitted facts - Stay / Dispensation of pre- deposit - The basic principle of Rule of evidence is that facts admitted need not be proved. On the basis of evidences on record, particularly the diaries and the statements and other evidences and detail findings recorded by the adjudicating authority, there is a prima facie case against the assessees that they have indulged in unaccounted manufacture and clearance of excisable goods without payment of duty from their registered factory premises. 25% pre-deposit ordered. (Para 14 & 15)

Role of Tribunal - Fact Finding Authority - The role assigned to the Tribunal in the system of Administration of justice relating excise, customs and service tax issues is that of being the final fact finding body. The Tribunal is not to judge the case solely on the pleadings of both sides, but to ascertain the true facts of the case. (Para 13 & 14)

2012-TIOL-1433-CESTAT-MUM

Sujanil Chemo Industries Vs CCE (Dated : June 1, 2012)

S. 35D of the CEA, 1944 - Remission of duty, by its very nature, involves determination of rate of duty and value of the goods, therefore, Single Member Bench cannot decide – matter to be placed before division Bench: CESTAT [para 1] 2012-TIOL-1432-CESTAT-DEL

M/s Swarn Enterprises Vs CCE (Dated : July 12, 2012)

Assignment deed gives the appellant firm only the right to use the brand names on their products – what is relevant for availing the benefit of SSI exemption notfn. 8/2003-CE is ownership of the brand name – since none of the brand names are registered in the name of the appellant, prima facie the appellant firm is not eligible for SSI exemption in respect of the goods affixed with brand name "KILLER" and "5 CEES" which do not belong to them – Pre-deposit ordered: CESTAT [para

2012-TIOL-1431-CESTAT-DEL

M/s Annapurna Impex Pvt Ltd Vs CCE (Dated : February 24, 2012)

Central Excise - Conditions of Pre-deposit - Attachment of Property - Modification Application - Pre-deposit of Rs. 6 Crore ordered by Tribunal. Property worth Rs. 17 Crore attached by the Department. Total confirmed demand is Rs. 28 Crores . Assessee seeks release of property so as to enable him to make pre-deposit as ordered by Tribunal.

As per Member (J): The fact of attachment of the property by the Revenue was not brought to the notice of the Bench at the time of disposal of the stay petition. The Tribunal having already considered that cash deposit of Rs.6 crores would be sufficient for the purpose of stay order, Revenue directed to release the property.

As per Member (T): The assessee has stated that they have no other assets. Hence, it is very obvious that the amounts due to the government are at serious risk. So, the discretion to waive pre-deposit to be exercised very carefully and impose suitable conditions. Tribunal should order release of the properties only to the extent as is needed for complying with the stay order and the property should be alienated with the permission of proper officer. Revoking the notice for all properties should be considered only after the order for pre-deposit is complied with. Since the stay order has not taken effect, Revenue should be allowed to complete the process of attachment and its sale to realize Rs. 6 crores .

Oral prayer of assessee vis-à-vis Revenue - Scope of - It is held that Revenue cannot ask for any modification of the earlier stay order to make it adverse to the assessee because Revenue has not filed any application for modification. Going by the same logic there is no appeal filed by assessee against the attachment notice and hence the Tribunal cannot rush to pass order on that issue. Such order if passed amounts to treating the two parties before the Tribunal unequally. The prayers made by both sides orally should be taken into account and a balanced order passed as the stay order is being reconsidered as per the directions of the High Court and in the light of new facts. (Para 13)

Protection of interests of Revenue - Due safeguards - There is an oral prayer that the attachment may be lifted so that the assessee can raise funds. But there was no undertaking that if attachment is lifted Rs. Six crores will be deposited. The order to lift the attachment of properties would not ensure that Rs. six crores will be deposited. The sequence of events consequent to the order to release of properties would be its alienation, no pre-deposit and then dismissal of the appeal for non-compliance with the order of pre-deposit. Hence, there should be safeguard against such a probable sequence of events detrimental to the interest of Revenue. (Para 12)

Difference of opinion: Registry directed to take necessary action to resolve the point of difference.

Also see analysis of the Order

2012-TIOL-1424-CESTAT-KOL

CCE Vs M/s Abdos Lamitubes Pvt Ltd (Dated : August 8, 2012)

Notification No.32/99-CE is meant for encouraging industrial growth as well as expansion of existing industrial units in the north-eastern sector hence deserves to be interpreted liberally so as to give effect to its objective and purpose - appellant purchasing caps from outside and after fitting the caps on the Lamitubes in an integrated manufacturing process cleared such tubes on payment of duty – Revenue seeking denial of refund on the ground that caps are not integral part of tubes, that there is no manufacturing involved and value should not have been included for payment of duty is illogical – appeal dismissed: CESTAT [paras 6, 7 & 10]

Also see analysis of the Order

2012-TIOL-1423-CESTAT-DEL

M/s Swaroop Castings Pvt Ltd Vs CCE (Dated : June 14, 2012)

Appellant manufacturing MS ingots from duty paid steel scrap – during stock taking, by approximation method 3.733MT of finished goods was held as found short – merely because the appellant agreed to pay duty of Rs.11,382/- on finished goods found short , it cannot be held against them as stock taking disrupts their work and when the representatives are detained late into night, they may admit such position even if not true – Duty demand and penalty imposed not maintainable: CESTAT [para 6]

Cenvat Credit of Rs.4.79 lakhs demanded on 232.795 MTS of Scrap found short - such raw materials were stored in heaps in the factory and as per the record, 892 MTs should have been there - it was not possible to weigh the material that was lying in stock - Since the officers were insisting on some method of ascertaining the stock, an approximate method was agreed upon and accordingly shortage of stock was estimated - No co-relation of quantity of raw materials consumed and quantity of final products manufactured over a reasonable period is examined - In the absence of such corresponding evidence or any evidence of clandestine removal and the nature of commodity involved, benefit of doubt is to be given to the appellant – Demand not sustainable: CESTAT [paras 7 & 10] 2012-TIOL-1422-CESTAT-DEL

M/s Tawi Chemical Industries Ltd Vs CCE (Dated : August 30, 2012)

Central Excise - Goods exempted under Notification No 56/2002 CE dated 7.11.2002 - Whether Education Cess and Secondary Education Cess are also exempted - Held: In view of the judgments of the Apex Court and Guwahati High Court on the issue involved, there is no need to refer the issue to a Larger Bench and exemption is not admissible for Education Cess and Secondary Education Cess .

2012-TIOL-1421-CESTAT-DEL

M/s Vardhman Spinning And General Mills Vs CCE (Dated : July 3, 2012)

Central Excise - Valuation - Trade Discounts - For permitting the deduction of trade discount, what is material is that it should be known and clearly understood prior to or at the time of removal and it is not necessary that it should be quantified and given to the buyer only at the time of removal. (Para 7)

2012-TIOL-1420-CESTAT-DEL

M/s Vintron Electronics Pvt Ltd Vs CCE (Dated : July 3, 2012)

Central Excise - Classification - Add-on cards - For deciding whether "Add-on card" is classifiable under 84.71, it has to be determined as to whether on the basis of its functions, it can be treated as a unit of an Automatic Data Processing Machine, i.e. whether it is a input unit, storage unit, output unit or other unit satisfying the condition of chapter note 5(b). This aspect has not been discussed either in the order in appeal or in the order in original. The order in original does not even discuss as to how the "Add on cards" being manufactured by the assessee are classifiable under heading 84.73 and not under 84.71. Matter remanded to determine the functions of add-on cards. (Para 15)

Rules of Interpretation - Central Excise Tariff Act - In terms of the Rule 1 of the Rules for the Interpretation of the 1st Schedule to the Central Excise Tariff Act. 1985, for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, subject to the provisions of Rule 2 to 5 of these Rules. Besides the Rules for the interpretation of the tariff, if a particular heading in the 1st schedule of the Central Excise Tariff Act, 1985 i.e. the Central Excise Tariff, is identical to the corresponding HSN heading, the HSN explanatory notes can also be a good guide for ascertaining the scope of the heading in the Central Excise Tariff. (Para 13)

2012-TIOL-1416-CESTAT-AHM The Paper Products Ltd Vs CCE (Dated : July 5, 2012)

No decision given on Interest liability in final order - ROM application filed by the appellant allowed and benefit granted: CESTAT [paras 4 & 5]

Also see analysis of the Order

2012-TIOL-1415-CESTAT-BANG

M/s Nikitech Electric Pvt Ltd Vs CCE (Dated : February 23, 2012)

Central Excise - Exemption – Eligibility of Exemption under Notification No.33/2005- CE dated 08/09/2005 as amended by Notification No.38/2005-CE Dt.30/12/2005 – The certificate issued by the Ministry clearly indicates that the certificate was being issued in terms of two Notifications, which Notifications were valid for the year 2007- 08 - The assessee cleared the subject goods in April 2008 when the certificate was very much valid and the two Notifications were very much in force - The show-cause notice did not raise any other ground for denial of benefit of exemption to the assessee, other than the reason based on the literary construction of the clause “which are valid for the year 2007-08” – Impugned Order set aside (Para 4).

2012-TIOL-1414-CESTAT-DEL

CC & CCE Vs M/s HSA Chadha Exports (Dated : June 19, 2012)

Central Excise - Power of remand - Commissioner (Appeals) - Commissioner (Appeals) has the power to remand despite amendment made to Section 35A of C.E Act, 1944. (Para 7)

2012-TIOL-1413-CESTAT-MUM

M/s Barar Steel Pvt Ltd Vs CCE (Dated : June 21, 2012)

Cenvat Credit availed on strength of fake/forged duty paying documents and without actual receipt of inputs – as per rule 173Q of the CER, 1944, in case of fraudulent availment of credit, goods are liable for confiscation and apart from imposition of penalty, land, building, plant and machinery are also liable for confiscation – Appeal dismissed: CESTAT [paras 5 & 6] 2012-TIOL-1412-CESTAT-MUM

M/s Ashu Organics (I) Pvt Ltd Vs CCE (Dated : July 4, 2012)

Notfn. 5/2006-CE – Refund claimed in respect of CENVAT credit lying unutilized on account of export of final products – lower authority allowing the same but Revenue succeeding in appeal before Commissioner(A) – appeal to CESTAT – applicant cannot claim refund of duty involved more than the duty paid in respect of DTA clearances and duty involved on inputs utilized for export goods – prima facie applicant does not have a strong case in favour – pre-deposit ordered of 10% of refund amount: CESTAT [para 4]

2012-TIOL-1405-CESTAT-AHM

M/s Micro Inks Ltd Vs CCE (Dated : May 1, 2012)

Central Excise - CENVAT - Inputs received from 100% EOU - Extent of credit eligible - Stay / Dispensation of pre-deposit - Assessee admits that while there could be dispute about the extent of cenvat credit taken as per the formula but there is no dispute in respect of the credit of Education Cess taken. Prima facie it appears that there is no dispute regarding the extent of credit of education cess taken. As substantial portion of the balance amount has already been paid, stay granted. (Para 4)

2012-TIOL-1404-CESTAT-BANG

CCE Vs M/s SPP Polypack Pvt Ltd (Dated : April 27, 2012)

Central Excise - CENVAT - CENVAT Credit denied on the allegation that raw materials were not used actually in the manufacture of final product -It is not in dispute that clerical errors were made, by the respondent - The records prepared and maintained under the Income Tax Act are claimed to be in order and the respondent seeks to rely on these records to substantiate their contention - It is not in dispute that the income tax records were not produced before the original authority - These records were produced before the appellate authority and were examined by that authority -Set aside the orders of both the authorities and allowed appeal by way of remand(Para 5).

2012-TIOL-1402-CESTAT-DEL

Indian Potash Ltd Vs CCE (Dated : April 20, 2012)

CENVAT - Rule 6 of CCR, 2004 – Bagasse emerges after crushing of sugar cane – cane sugar juice in turn is processed for production of sugar and molasses - by no stretch of imagination it can be said that the assessee possibly could have maintained separate accounts for the inputs for production of sugar and molasses (excisable item) and bagasse – moreover, neither the show cause notice nor the order-in-appeal mentions as to which common Cenvat credit availed inputs have been used in manufacture of sugar and molasses (dutiable final product) and bagasse – so also, since Bagasse emerges at sugarcane crushing stage, there is no possibility of any input viz. chemicals etc. having been used at that stage – Board Circular 904/24/2009-CX., dated 28-10-2009 regarding excisability of Bagasse and the amendment made by Finance Act, 2008, in definition of section 2(d) does not make any impact in the facts and circumstances of the present case – no cause for applying the provisions of rule 6(3) and demanding an amount of equal to 8% of the sale value of bagasse – Order set aside and appeal and stay applications allowed: CESTAT [para 6]

2012-TIOL-1398-CESTAT-DEL

Mound Trading Co Pvt Ltd Vs CCE (Dated : June 14, 2012)

CENVAT - Agreement between the appellant (job worker) and principal manufacturer has been entered into to circumvent the provisions of Rule 4(4) of the CCR, 2004 inasmuch as while the principal manufacturer has claimed depreciation under Section 32 of the IT Act, 1961, the Appellant has availed capital goods cenvat credit – Stay application dismissed and Pre-deposit ordered of adjudged dues: CESTAT

Also see analysis of the Order

2012-TIOL-1397-CESTAT-AHM

CCE Vs M/s Shree Chalthan Vibhag Khand (Dated : July 27, 2012)

Central Excise - Condonation of delay - Appeal to Tribunal - Tribunal has the power to condone delay. Delay of 14 days in giving authorization by the Committee of Commissioners. Reasons given for delay justifiable. Delay condoned . (Para 11 & 12)

Ratio of a Judgement - What is required to be followed in a judgement is ratio decidendi and not mere observations. (Para 10)

2012-TIOL-1396-CESTAT-AHM

CCE Vs M/s James Robinsons India Pvt Ltd (Dated : April 30, 2012)

Central Excise - Refund - Remand order passed by Commissioner (Appeals) - Commissioner (Appeals) while upholding the order of the original adjudicating authority remanded the matter to the original authority for certain verification. Although Commissioner (Appeals) could have decided the issue, this work is done better at the original adjudicating authority level. Accordingly, exercising the powers of the Tribunal, the matter is remanded to the original adjudicating authority instead of directing the Commissioner (Appeals) to decide the issue finally.(Para 3 & 4) 2012-TIOL-1395-CESTAT-AHM

M/s Hindustan Dorr Oliver Ltd Vs CCE (Dated : May 2, 2012)

Central Excise - Goods cleared to SEZ - Proof of Export not submitted - Demand - Penalty - Goods cleared to SEZ received back after a lapse of more than six months from the date of clearance. Goods subsequently cleared to SEZ after certain modification. Demand raised for non-submission of proof of export within 45 days.

HELD - The basic purpose of demand of duty, if the proof of receipt of goods in SEZ unit is not received within 45 days is to ensure that there is no diversion of goods or the goods have been lost. When the goods have been accounted for and cleared ultimately to SEZ unit, duty is not required to be demanded. Penalty under Section 11AC not imposable as it is only a technical violation. (Para 3 & 4)

2012-TIOL-1394-CESTAT-AHM

M/s Swan Laminators Pvt Ltd Vs CCE (Dated : April 25, 2012)

Central Excise - Monthly payment - Default in payment - Demand on subsequent clearances made without payment of duty - Imposition of penalty - Where there is a default in payment of duty from PLA and duty has been paid from cenvat credit account contrary to the provisions of Rule 8(3A) of the Rules, Penalty under Rule 27 is only imposable. (Para 4)

Remand - Scope of remand proceedings - Since Tribunal's remand order is not challenged in higher forum, the same has attained finality. The adjudicating authority is bound by the directions contained in the remand order and does not have the liberty of distinguishing the issue and the applicability of the case law cited in the order of the Tribunal. (Para 4)

2012-TIOL-1393-CESTAT-AHM

M/s Panchmahal Steel Ltd Vs CCE (Dated : August 9, 2012)

CENVAT – Notfn. 39/2007-CE(N.T) - Removal of used capital goods - Interpretation by the Commissioner(A) that the provisions of payment of 2.5% of the CENVAT credit for the each quarter is brought into statute w.e.f. 13.11.07 and can be considered only for the period from 13.11.07 to 18.03.09 is totally incorrect inasmuch as the said provision has to be applied on the date of clearance of the capital goods - on the date of clearance viz. 18.03.2009, the provisions of second proviso to rule 3(5) was in existence which would necessarily be applied and that the cenvat credit taken by the appellant in 1994, is exhausted on records as per statute itself, on completion of ten years of use of capital goods – Demand set aside and appeal allowed: CESTAT [paras 9, 10, 11 & 12] Also see analysis of the Order

2012-TIOL-1392-CESTAT-BANG

Sri Hanumantha Kali Vara Prasad Babu Chemicals (P) Ltd Vs CCE (Dated : January 30, 2012)

Central Excise – Manufacture and dutiability - Non-payment of Duty on denatured ethyl alcohol on the ground that denaturing was done in the tanker and it was not liable to tax - The process of denaturing of impure spirit by using other chemicals brought by the customers takes place in the buyer's tanker but the buyer's tanker is within the factory premises of the appellants during the process - unless such mixing takes place, denatured spirit cannot be cleared out of the factory - the definition of the ‘factory' only includes the premises and the precincts thereof - the claim of the assessee that the process cannot be said to amount to manufacture and therefore no duty liability is attracted cannot be sustained - appeal filed by the assessee is rejected (Para 2).

Penalty - This is a case where two views are possible - Therefore the decision of the learned Commissioner (Appeals) to set aside the penalties under various provisions of Central Excise Act and Rules cannot be found fault with - the appeal filed by the Revenue is rejected (Para 3).

2012-TIOL-1391-CESTAT-BANG

M/s Sujana Steels Ltd Vs CC & CE (Dated : April 19, 2012)

Central Excise – Stay / Pre Deposit – CENVAT Credit – Availment of CENVAT Credit with out receipt of imported goods - The persons who are concerned with the import, storage including the trading companies have given evidence to the effect that the imported HMS was diverted and disposal of at Chennai itself – In certain cases, the vehicle numbers indicated were of numbers of vehicles which could not have carried the quantity of materials mentioned in the documents - Denial of credit is justified – Ordered for pre-deposit of duty of Rs.30 Lakhs (Para 6.1 & 6.2).

2012-TIOL-1390-CESTAT-BANG

M/s Softlite Luggage Pvt Ltd Vs CCE (Dated : March 22, 2012)

Central Excise – Stay / Pre-deposit of duty - Clandestine Clearances - there has been seizure of unaccounted finished goods and also wide variation in the raw materials which were available when compared to the accounts - Managing Director has admitted the clandestine removal and paid Rs.10 Lakhs - Managing Director was no retracted his statement as well not disputed the seizure of the books from the Office- cum-Residence and in fact, he clarified that some entries related to clearances from his company - prima fade, there is suppression of production and clandestine removal - The dispute can only be on the quantum of duty evasion which has occurred and whether appellant will be eligible for SSI exemption during two financial years - If the SSI exemption is applicable, then the demand will be drastically reduced - Directed to deposit a further sum of Rs.15,00,000/- (Para 5, 6 & 7).

2012-TIOL-1386-CESTAT-AHM

M/s Ravikiran Plastics Pvt Ltd Vs CCE (Dated : September 10, 2012)

Central Excise – Stay/Dispensation of pre-deposit – Valuation – Demand of duty by applying the provisions of Rule 10A of the Central Excise (Valuation) Determination of Price of Excisable Goods Rules 2000 – The appellants are manufacturing Air Coolers and Air Cooler Parts and clearing the same to Symphony – Prima facie , the activity is covered under the definition of job work as defined under Rule 10A – The definition of job worker incorporates the words "on behalf of"- In the market no one knows the appellant manufacturers and Air Coolers are recognised as of Symphony only - There is no sale to Symphony nor to anyone else - What the OEMs are doing is nothing but manufacturing on behalf of Symphony - Pre-deposit ordered.

Also see analysis of the Order

2012-TIOL-1385-CESTAT-AHM

M/s MSN Enterprises Vs CCE (Dated : September 4, 2012)

CE - Allegation is that M/s MSN Enterprises did not transport the goods from their factory to M/s Balaji Enterprises and M/s Balaji Enterprises have wrongly availed the CENVAT Credit which they have utilized for discharge of duty liability and claimed the rebate – applicant submitting that they did not file any reply or appear before the adjudicating authority and hence seeking a remand - entire issue needs to be gone in detail, which can only be done at the time of final disposal of appeals – Pre-deposit ordered of Rs.1.50 Crores: CESTAT [paras 5, 6, 9 & 10]

2012-TIOL-1384-CESTAT-AHM

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

CE - Appellant reversing CENVAT credit availed on courier/telephone services and security services – having accepted their liability interest is required to be paid – on the question of imposition of equivalent penalty, it is to be noted that had the appellant contested the case on merits, they may have succeeded – in such facts and circumstances, the equivalent penalty imposed is unwarranted and is liable to be set aside – appeal allowed to the extent of penalty: CESTAT [paras 8, 9 & 10] 2012-TIOL-1383-CESTAT-AHM

M/s Tyco Valves & Controls India Pvt Ltd Vs CCE (Dated : September 7, 2012)

CE - Appellant had a CENVAT Credit of more than Rs.Two Crores from the time the audit party pointed out the ineligible CENVAT Credit of Rs.4,49,426/- - If that be so, visiting the appellant with the penalty under the provisions of Rule 15(2) of CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944, seems to be unwarranted as the appellant would not have any reason to utilize the amount as he has enough balance in CENVAT account – interest already paid - penalty imposed u/r 15(2) of CCR, 2004 r/w s. 11AC of the CEA, 1944 is set aside and appeal allowed: CESTAT [paras 6 & 7]

2012-TIOL-1382-CESTAT-BANG

M/s D M Cements Pvt Ltd Vs CCE (Dated : April 30, 2012)

Central Excise – Stay/Pre-deposit of Duty – Demand – Mis-declaration of MRP/RSP on the bags of Cement - The reduction of RSP from Rs.250/- to Rs.190/- was with effect from 1.3.2007 - The officers visited the unit on 15.3.2008 - The claim of the appellant is that they were having "huge stock" of HDPE sacks with RSP mentioned as Rs. 250/- but the sacks claim has not been substantiated - They have not indicated as to how much stock of sacks with Rs.250/- as RSP printed was available as on 01.03.2007 - Therefore, the claim that they were having huge unutilized old stock of sacks which were used for more than a year has been rightly rejected by the Commissioner (Appeals) – Ordered for pre-deposit of Rs. 5 Lakhs (Para 5 & 6).

2012-TIOL-1375-CESTAT-BANG

M/s AAR AAR Equipments P Ltd Vs CCE (Dated : May 11, 2012)

Central Excise – Stay/Pre-deposit of Duty - CENVAT – Denial of Credit taken and utilised on Table fans received from Coimbatore unit as fans are cleared as such from Hyderabad unit - Prima facie, the Hyderabad unit was trading in table fans brought from the other unit - It is argued that, as per Rule 16, the Hyderabad unit is entitled to take CENVAT credit of the duty paid on the table fans brought from the Coimbatore unit – Rule 16 provides for CENVAT credit to be taken by an assessee on duty-paid goods brought to his factory "for being remade, refined, reconditioned or for any other reason" - The argument is that the expression “any other reason” has the widest amplitude and can include the mere clearance of the table fans from the other unit - Prima facie, the argument is bereft of merit inasmuch as the expression "any other reason" has to be read ejusdem generis with the pre-existing words (remade, refined etc.) - Prima facie, the benefit of Rule 16 is not available and taking and utilization of CENVAT credit in question are irregular – Pre-deposit ordered (Para 2 & 4). 2012-TIOL-1374-CESTAT-BANG

M/s Astrix Lab Ltd Vs CCE, Hyderabad (Dated : April 20, 2012)

Central Excise – Appeal filed against order of Commissioner (appeals) on the sole ground of non-compliance with Section 35F of the Central Excise Act, 1944 (Pre- deposit) - Denial of CENVAT Credit on MS plates, angles, channels, beams, rounds, etc., on the ground that these items did not qualify to be capital goods – Credit denied invoking extended period of limitation - No penalty imposed under Rule 15(2) of the CENVAT Credit Rules, 2004 read with Section 11 AC of the Central Excise Act, 1944 by observing that the assessee entertained a bona fide belief in favour of availing and utilizing credit - Duty demanded for the normal period of limitation has been deposited albeit under protest - Impugned order is set aside and appeal allowed by way of remand (Para 2 & 3).

2012-TIOL-1373-CESTAT-MUM

M/s Alpha Techno Systems P Ltd Vs CCE (Dated : February 9, 2012)

Appellant a SSI unit crossing exemption limit but failing to take Central Excise registration on time – later, duty paid along with interest on delayed payment - Both the lower authorities have imposed penalty u/s 11AC without applying the proper position of law and without going through the case law - no allegation that the appellant has evaded the duty by way of fraud, collusion, willful misstatement, or suppression of fact etc. - In the absence of compliance of the provisions of Section 11AC of the CEA, 1944, penalties on the appellant are not warranted – penalty u/r 25 and/or 27 also waived: CESTAT [para 7]

2012-TIOL-1372-CESTAT-DEL

M/s APS Associated Pvt Ltd Vs CCE (Dated : May 4, 2012)

Central Excise - Restoration Application - Tribunal order factually incorrect - The Tribunal in its final order held that the Commissioner's order determining the annual production capacity of the assessees factory was not challenged by them in the manner known to the law is factually incorrect. In fact, this matter is pending before the Apex Court. Hence, the application for restoration of the appeal is allowed. (Para 6.1.1, 6.1.2 & 7)

2012-TIOL-1370-CESTAT-DEL M/s U P State Sugar Corpn Ltd Vs CCE (Dated : August 27, 2012)

CE - In the absence of any evidence to show that the molasses were removed clandestinely, it has to be held that same were destroyed or damaged on account of weather conditions and rainy season - remission has to be granted in such a case – order set aside and appeal allowed with consequential relief: CESTAT [paras 4, 5 & 6]

Also see analysis of the Order

2012-TIOL-1369-CESTAT-MUM

Chefair Flight Catering Vs CCE (Dated : April 23, 2012)

CE - Meal boxes - Applicants are manufacturing and clearing food preparations to the airlines by placing in the meal tray and by placing card/labels bearing logo as well as name of applicant – in view of Tribunal decision in Taj Madras Flight Kitchen Pvt. Ltd. [2011-TIOL-22-CESTAT-Mad ] holding that such ready to eat packaged food is entitled for Nil rate of duty under notfn. 3/2006-CE, applicant has a strong prima facie case – Pre-deposit of dues waived and stay granted: CESTAT [para 3]

2012-TIOL-1368-CESTAT-AHM

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

Rule 6 of CCR, 2004 - Manufacture of dutiable and exempted goods from common inputs - though the appellant could have intimated the departmental authority regarding the option of reversal of input services which are attributable to the exempted goods but having reversed the same and produced a CA certificate in this regard, since there has been substantial compliance of the law, appellant has made out a prima facie case for the waiver of pre-deposit of amounts which are confirmed on the ground that they are liable to pay 5% of the value of the exempted goods: CESTAT [para 6]

2012-TIOL-1366-CESTAT-BANG

NCL Industries Ltd Vs CC, CE & ST (Dated : March 29, 2012)

CENVAT - Structural items were used for fabricating certain structures and cement was used for fixing such structures to ground - structures were used as support to various equipments/plants in the cement factory - prima facie , cement used as above cannot be held to be `input' under Rule 2(k) of CCR, 2004 nor can the structural items be held to be `capital goods' under Rule 2(a) ibid, as per the LB decision in Vandana Global Ltd. – no prima facie case made in favour – demand within normal period and no financial hardships pleaded - Pre-deposit ordered of Rs.2.5 Crores: CESTAT [paras 5, 6 & 7]

2012-TIOL-1361-CESTAT-AHM

M/s Pankil Textile Vs CCE (Dated : April 24, 2012)

Central Excise - Valuation - Labour Charges & Octroi charges - Inclusion of - The assessee claims that the actual amount of Octroi paid is in respect of finished goods. Then it would be unfair to hold that the same has to be included in the assessable value. Regarding labour charges, there is a mistake on the part of the adjudicating authority while considering the expenditure account and from the records, it appears that 'tempo expenditure account' has been considered instead of 'labour charge account'. Matter remanded to original authority to reconsider the facts and pass orders afresh. (Para 4 & 5)

2012-TIOL-1360-CESTAT-BANG

CCE Vs M/s Ontop Pharmaceuticals Ltd (Dated : March 6, 2012)

Central Excise – Valuation – Job work – Inclusion of cost of Consultancy Charges and Product development charges in the assessable value of the goods manufactured by the job worker - The view taken by the Ld. Commissioner (Appeals) is that, as far as a job worker is concerned, any expense which is not attributable to the job work cannot be included in the cost of conversion and hence cannot be added to the assessable value - The view taken by the learned Commissioner(Appeals) is legal (Para 4, 5 & 5).

2012-TIOL-1359-CESTAT-BANG

Mangalore Refinery And Petrochemicals Ltd Vs CCE (Dated : May 16, 2012)

Central Excise - CENVAT - CENVAT Credit Invoices issued by Input Service Distributors is not in accordance with the documents prescribed under Rule 9(1) of the CENVAT Credit Rules, 2004 - The counsel for the appellant has submitted that, after the impugned order was passed by the Commissioner, the appellant could gather all the requisite invoices issued by the Input Service Distributors and is now in a position to substantiate their claim before the Commissioner, given an opportunity - Matter remanded (Para).

2012-TIOL-1356-CESTAT-MUM Tej Control Systems Pvt Ltd Vs CCE (Dated : March 22, 2012)

Appellant having two registrations, one as a manufacturer and another as a Service Tax provider – they availed Cenvat credit on CHA services which was sought to be denied – appellant accordingly reversed the credit by payment through challans before passing of adjudication order – since the appellant had wrongly quoted the service tax registration number in the challans they were directed to pay the adjudged amount once again – Commissioner(A) also dismissing appeal – quoting of ST registration number in challan cannot be considered as an irreparable mistake – since the department has received the amount, it has to be considered as a technical error rectifiable at the department's end itself – demand perverse and unsustainable in law – Appeal allowed: CESTAT [para 7]

2012-TIOL-1355-CESTAT-MUM

M/s The Paper Products Ltd Vs CCE (Dated : May 23, 2012)

Cenvatted Capital goods used for 8 to 10 years and then cleared on payment of depreciated value in year 2007 – revenue seeking reversal of credit initially taken by relying on LB decision in Modernova Plastyles Ltd. – P&H High Court after taking into consideration the LB decision approved payment of duty on depreciated value in case of Raghav Alloys – prima facie strong case in favour – Pre-deposit waived and stay granted: CESTAT [paras 6 & 7]

2012-TIOL-1354-CESTAT-BANG

M/s Wrigley India (P) Ltd Vs CCE (Dated : June 11, 2012)

Central Excise – Classification – “Orbit” Sugar free Chewing gum - The appellants classified it under Sub-heading 2106 90 99 and the revenue sought to be classified as diabetic food under Subheading 2106 90 91 - Classification of the goods as “diabetic foods” must be based on evidence of the chewing gums having been medically prescribed as “diabetic foods” and marketed as “diabetic foods” - The Revenue whose burden it was to gather such evidence to justify classification of the chewing gums as diabetic foods under S.H. 2106 90 91 failed to do so - On the contrary the assessee is able to show that the subject products were not marketed as diabetic foods - ORBIT chewing gum is rightly classifiable under Chapter sub-heading No.2106 90 99 of CETA, 1985 (Para 3 & 4).

Also see analysis of the Order

2012-TIOL-1346-CESTAT-DEL M/s Ballarpur Industries Ltd Vs CCE (Dated : June 15, 2012)

Central Excise - Valuation - Inclusion of Insurance, Freight, Handling Charges, Processing Charges - Goods cleared on payment of duty from factory to processor - Goods sold at Depot - Stay / Dispensation of pre-deposit - The value of the goods, when the duty on the same is chargeable at an ad-valorem rate, has to be taken as the value of the goods in the form in which the same had been cleared at the time of removal. In the instant case, the paper reels which had been cleared from the factory on payment of duty, which subsequently after being cut into sheets were sold from the depot, it is the value of the reels which has to be adopted for charging duty and the cost of transportation and insurance from factory gate to the cutting centres would not be includable in the assessable value. Pre-deposit waived. (Para 6)

2012-TIOL-1345-CESTAT-AHM

M/s Harsha Engineers Ltd Vs CCE (Dated : April 26, 2012)

Central Excise - Merchant Overtime [MOT] - The assessee claims that services of Central Excise officers for export consignment removal was never utilised as they opted for self sealing procedure in respect of their export and therefore not liable to pay MOT charges. Matter remanded to the original authority to verify whether the assessee had availed the services for export purpose during the relevant period and pass orders after giving reasonable opportunity to the assessee for their defense. (Para 4)

2012-TIOL-1343-CESTAT-MUM

Tata Metaliks Vs CCE (Dated : June 12, 2012)

During the screening of Iron ore and metallurgical coke which are basic inputs for manufacture of Pig iron, Iron ore fine and coke breeze come into existence and which are cleared without payment of duty – Common input services used and no separate records are maintained – demand under rule 6(3)(b) of CCR, 2004 – since rule 6 amended retrospectively, proportionate credit ordered to be paid as pre-deposit for obtaining stay: CESTAT [para 7]

Also see analysis of the Order

2012-TIOL-1341-CESTAT-DEL

M/s RHL Profiles Ltd Vs CCE (Dated : May 9, 2012) Central Excise - Stocktaking - Shortage of input - Demand - Stocktaking of inputs done on approximation method. There is doubt about the quantity of inputs in process. Admission to the shortages by the assessee may be due to the fact that the factory authorities are under pressure due to disruption in their work and they may agree to shortages so long as the quantities are small. Benefit of doubt goes to the assessee. In the result demand along with penalties set aside. (Para 8 & 10)

2012-TIOL-1340-CESTAT-DEL

CCE Vs M/s Oswal Paper And Allied Industries (Dated : July 26, 2012)

Central Excise - Fortnightly payment of duty - Default in payment - Penalty - The records do not show any forfeiture order having been passed under Rule 8(4) and there is no allegation that during forfeiture period, the assessee did not pay duty consignment-wise and through PLA. The allegation in this case is simply failure to discharge fortnightly duty liability by due date. In the instant case, penalty on the assessee under Rule 25 or Section 11 AC would not be attracted. However, penalty would be attracted under Rule 27 for each default in discharge of duty liability by the due date. Penalty under Rule 27 is imposed. (Para 11 & 12)

2012-TIOL-1334-CESTAT-MUM

M/s Yashraj Industries Vs CCE (Dated : June 8, 2012)

CX - Refund - as the appellant is claiming the benefit of Notification 8/03-CE being SSI unit, they are not collecting Central Excise duty from their customers - in this scenario question of unjust enrichment does not arise at all – Appeal allowed with consequential relief: CESTAT [para 2]

Also see analysis of the Order

2012-TIOL-1332-CESTAT-MUM

Star Auto Industries P Ltd Vs CCE(Dated : July 30, 2012)

Applicant paying the rent for the job worker's unit and taking Cenvat credit – since the premises for which rent is paid is not a part of the manufacturing unit as per the ground plan submitted, prima facie the applicant has not made out a case for waiver of the duty demanded – Pre-deposit ordered: CESTAT [paras 5, 6 & 7]

Also see analysis of the Order 2012-TIOL-1331-CESTAT-BANG

M/s Micro Labs Ltd Vs CCE (Dated : February 24, 2012)

Central Excise – Stay / Pre-deposit of duty - Taking of Suo moto Credit – Followed the decision of BDH Industries Ltd., (2008-TIOL-1211-CESTAT-MUM-LB ) - There is no provision in Central Excise Act and Rules allowing suo motu taking of credit – Pre- deposit ordered (Para 2, 3 & 4).

2012-TIOL-1330-CESTAT-AHM

M/s Rajsheela Steel Industries Vs CCE (Dated : April 25, 2012)

Central Excise - Receipt of goods without invoice - Non-accountal - Penalty - Stay / Dispensation of pre-deposit - It requires to be seen whether the goods are covered by proper duty paying documents and whether assessee can be said to have violated the provisions of law regarding accountal of raw materials etc. Prima facie, the assessee cannot be accused of non accountal of goods at the time of unloading of the goods itself as there was time for accounting the goods and non availability of invoice also is explained by the assessee. Prima-facie case made out for wavier of pre-deposit. (Para 3)

2012-TIOL-1323-CESTAT-MUM

Aura Solar Products Pvt Ltd Vs CCE (Dated : July 25, 2012)

CX - Notfn 6/2002 - Non-conventional energy devices - Applicant clearing TWO solar lanterns and A solar panel in a common package - there is nothing in notification to suggest that benefit of exemption is available in respect of ONE lantern only - stay granted: CESTAT

Also see analysis of the Order

2012-TIOL-1320-CESTAT-BANG

CCE Vs M/s Hetero Drugs Ltd (Dated : March 30, 2012)

Central Excise - Stay - CENVAT - CENVAT Credit of Special Additional Duty (SAD) under Section 3(5) of the Customs Tariff Act, 1975 paid by the importer by making use of Target Plus Scheme is eligible for CENVAT Credit in the light of CBEC Circular No.18/2006-Cus dated 15/06/2006 - Stay not granted. 2012-TIOL-1318-CESTAT-DEL

CCE Vs M/s Leading Solution India Pvt Ltd (Dated : July 26, 2012)

S. 35E of CEA, 1944 - Application/appeal filed by CCE, Delhi-III before the CESTAT based on the Review order passed by the Committee of Chief Commissioners delayed by 63 days – CESTAT has no power to condone this delay – LB decision in Monnet Ispat does not record the reasons for taking a view contrary to the LB decision in Azo Dyechem and hence not followed: CESTAT [paras 7.2, 8 & 9]

Also see analysis of the Order

2012-TIOL-1317-CESTAT-DEL

CCE Vs M/s Prem Steels P Ltd (Dated : June 27, 2012)

Central Excise - Commissioner (Appeals) - Power to Remand - Section 35A( 3) of Central Excise Act as amended confers powers on the Commissioner (Appeals) to annul the order-in-original and also to pass just and proper order. Just and proper order could be to remand the order for fresh adjudication. Hence, power to remand the matter back in appropriate cases is inbuilt in Section 35A( 3) of the Central Excise Act, 1944. (Para 12)

2012-TIOL-1316-CESTAT-DEL

M/s Kharkia Alloys (P) Ltd Vs CCE (Dated : June 18, 2012)

Central Excise - Clandestine Clearance - Admission of clandestine clearance by Director - Voluntary deposit of duty - Sustainability of demand - Penalty - Admittedly there are discrepancies of the goods recorded in stock register and physical stock. Assessee failed to provide any reconciliation thereof nor leading any cogent evidence to rebut the scope of allegation of clandestine removal. When the excisable goods failed to exist in the registered premises that gave rise to inference that such goods went out of the registered place without being recorded in the excise record. Director having conscious knowledge of the discrepancies, admitted clandestine clearance and voluntarily deposited duty involved. Clandestine clearance proved. As duty paid immediately, penalty reduced to 25%. Penalty on Director quashed as mens rea absent. (Para 7, 9 & 10)

2012-TIOL-1315-CESTAT-DEL

M/s Cosmos Ispat Pvt Ltd Vs CCE (Dated : June 26, 2012)

Central Excise - CENVAT - MS Angles, Channels, Plates used in factory - Eligibility of credit - Entries contained in the ledger account maintained by the assessee shows that MS Angles, Channels, Plates are used for construction of the shed and office building. The chartered engineer certificate is vague and do not specifically certify, whether goods in question were actually used for repairing of pusher oil furnace. The onus of proving that inputs were used for manufacture in or in relation to manufacture of final products is on the assessee. The assessee has not intimated to the Department the actual usage of the inputs and hence extended period can be invoked. (Para 9 & 12)

2012-TIOL-1310-CESTAT-MUM

Hindustan Coca-Cola Beverages Pvt Ltd Vs CCE (Dated : May 1, 2012)

Breakage of cenvatted glass bottles during the manufacture of aerated beverages – No cause for reversal of Cenvat Credit – since the benefit given to the assessee by Board's instruction dated 17.09.1975 has been withdrawn by Board Circular dated 09.07.2010 it cannot be held to be retrospective – Appeal allowed: CESTAT [para 4]

Also see analysis of the Order

2012-TIOL-1309-CESTAT-MUM

Man Industries (India) Ltd Vs CCE & ST (Dated : April 24, 2012)

Pipes cleared under exemption in terms of notfn. 6/2002-CE - in the show-cause notice the ground for denial of exemption notification is different than that in the adjudication order – prima facie case in favour – Pre-deposit waived and stay granted: CESTAT [para 6]

2012-TIOL-1307-CESTAT-MUM

Gangapur S S K Ltd Vs CCE (Dated : April 13, 2012)

Incentive granted to the sugar manufacturer did not permit them to collect more than what they had themselves paid, from their customers – what has been collected in excess as excise duty they are bound to deposit with the Government in terms of s. 11D of the CEA, 1944 – demand upheld – appeal dismissed: CESTAT [paras 2 & 3]

2012-TIOL-1301-CESTAT-DEL

CCE Vs M/s Kap Cones (Dated : July 25, 2012)

Review order passed by the Committee of Chief Commissioner's after expiry of the limitation period – Tribunal has no power to validate and revive such invalid and ineffective order – LB decision in Monnet Ispat & Energy Ltd. is contrary to the law laid down by the Apex Court in case M.M. Rubber Co. Ltd. and which has been followed by HP High Court in case of Bhilai Wires Ltd. – COD application as well as appeal filed by Revenue dismissed: CESTAT [paras 10 & 12]

While the Tribunal can condone the delay only in filing of appeal the Tribunal has nothing to do with the exercise of the power of superintendence to be exercised by the reviewing authority under Section 35E (1) of the Central Excise Act - All the Tribunal has to see before accepting an application filed by the Commissioner under Section 35E(4) is as to whether the application is backed by a valid order passed by the Committee of Chief Commissioner - When a time limit is prescribed by statue for reviewing authority for exercise of its power of superintendence and if the reviewing authority issues an order under Section 35E(1) after expiry of the limitation period, the same, as held by the Apex Court in M.M.Rubber Co. [2002-TIOL-111-SC-CX], would become invalid and ineffective and the Tribunal has no power to validate and revive such invalid and ineffective order: CESTAT [para 11]

Also see analysis of the Order

2012-TIOL-1300-CESTAT-AHM

M/s Rainbow Papers Ltd Vs CCE (Dated : July 23, 2012)

Central Excise - CENVAT - Exemption Notification - Beneficial entry in the notification - Stay / Dispensation of pre-deposit - Revenue authorities denied the benefit of CENVAT credit as the assessee incorrectly availed the benefit of Notification No.4/2006-CE dt. 1.3.2006, inasmuch as the assessee has not availed the benefit of Sr.No.90 but has availed the benefit of Sr.No.91. The notification gives an option to an assessee to avail either of the benefit, and it is for the assessee to claim the benefit of serial number which is most beneficial to him. Prima facie, case made out for waiver of pre- deposit.(Para 5)

2012-TIOL-1299-CESTAT-MUM

Indo Afrique Paper Mills Pvt Ltd Vs CCE (Dated : April 11, 2012)

Forwarding letter under which adjudication order was served mentioning that an appeal may be filed within 90 days from the receipt of the order – under this impression appeal filed within 90 days – Commissioner(A) dismissing appeal on the ground that delay of 20 days has not been sufficiently explained – applicant cannot be faulted for not filing appeal within the normal period of limitation – delay condoned and matter remanded: CESTAT [para 9]

Demand on the ground that paper cess is to be taken into consideration while calculating education cess and higher education cess – matter already decided against Revenue in case of Sahakari Khand Udyog Mandli Ltd. [2010-TIOL-887-HC-Ahm-CX] – matter remanded to Commr(A) to decide appeal on merits: CESTAT [para 9]

2012-TIOL-1297-CESTAT-BANG

M/s Matrix Laboratories Vs CCE (Dated : February 3, 2012) Central Excise – CENVAT Credit – Duty paid wrongly and credit taken suo moto by the appellants – Followed the Larger bench decision of BDH Industries Ltd. (2008-TIOL- 1211-CESTAT-MUM-LB) - There is no provision in Central Excise Act and Rules allowing suo motu taking of credit - (Para 4, 5 & 6).

2012-TIOL-1296-CESTAT-BANG

CCE & CC, Visakhapatnam Vs M/s Coromandel Paints & Chemicals Ltd (Dated: April 12, 2012)

Central Excise – Valuation – Non-inclusion of notional interest on advance received from the customers in the assessable value - Appellant has not even made an attempt to show that the advances received by the respondent from their customer had a bearing on the assessable value the goods - No nexus between the two has been established - The duty paid by the respondent on the assessable value based on the agreed price is in order and no further amount of duty is liable to be paid (Para 4).

2012-TIOL-1293-CESTAT-DEL

M/s JCB India Ltd Vs CCE (Dated: April 16, 2012)

Central Excise - Manufacture - Job-worker - Clearances made to dealer - Demand of duty from Job-worker - Stay / Dispensation of pre-deposit - The goods received by job-worker are rough forgings classifiable under heading 7326. The the products which emerges after being subjected to machining and drilling of holes by job-worker are clearly identifiable as a parts of excavators and can be directly used, as such, and the same are classifiable as part of the earth moving machinery under sub-heading 84314990. Therefore, prima facie the process carried out by job-worker amounts to manufacture. As the job-worker never informed the department about their activity, extended period invokable. As the job-worker is eligible for cenvat credit, part pre- deposit ordered. (Para 6)

2012-TIOL-1292-CESTAT-MUM

Hindustan Petroleum Corporation Vs CCE (Dated: June 6, 2012)

Notfn. 67/95-CE provides exemption only for inputs used in or in relation to the manufacture of final product whereas the definition of "input" under the Cenvat Credit Rules is wide – benefit of exemption is not available in respect of Naphtha captively consumed for the purpose of generating electricity used for lighting refinery road, canteen and administrative office – Demand upheld: CESTAT by Majority

Since the appellants had reversed proportionate CENVAT credit (as mentioned in the SCN) under rule 6(3)(a) of CCR, 2004 in respect of Naphtha cleared availing exemption under notfn. 4/2006-CE for manufacture of fertilizers under International Competitive Bidding and on the quantity of naphtha attributable to electricity generated in captive power plant/co-generation plant used for manufacture of exempt goods viz. LPG (domestic) and Superior Kerosene Oil (PDS) as warranted in terms of amending notification 35/2001-CE, the exemption under notification 67/95-CE is available: CESTAT

Also see analysis of the Order

2012-TIOL-1291-CESTAT-BANG

ADC India Communications Ltd Vs CCE (Dated: April 27, 2012)

Central Excise - CENVAT Credit - Reversal of CENVAT credit on inputs written off for Income Tax Purpose but lying in factory - Followed the decision of Phillips Electronics India Limited ( 2011-TIOL-1981-CESTAT-MUM ) - During the period prior to 11.05.2007, CENVAT Credit not reversible (Para 1).

Central Excise - CENVAT Credit - Eligibility of - Pest Control Service - the claim of the appellant for CENVAT credit on pest control is supported by the Tribunal's decision in VST Industries Ltd. (2010-TIOL-1339-CESTAT-BANG) - Credit Allowed (Para 5).

Central Excise - CENVAT Credit - Eligibility of - AMC for air conditioners for instrumentation room - there is a nexus between the said service and the manufacture of excisable products inasmuch as testing of the products in the factory is an imperative requirement - Credit Allowed (Para 5).

Central Excise - CENVAT Credit - Eligibility of - Outdoor Catering Service (Canteen Facility) - In the case of Stanzen Toyotetsu India (P) Ltd. (2011-TIOL-866-HC-KAR- ST) the Hon'ble High Court adverted to the mandatory provisions of Section 46 of the Factories Act and took the view that CENVAT credit could not be denied in respect of outdoor catering service as it was their statutory liability to maintain a canteen where the number of employees was more than 250 - This statutory liability does not exist in the instant case as the appellant admittedly did not have 250 or more employees/workers during the material period - CENVAT credit was rightly denied (Para 5).

Central Excise - CENVAT Credit - Eligibility of - AMC for computers - it is the claim of the appellant that these computers were used for manifold purposes in connection with manufacture and clearance of their products - there is no rebuttal of the requisite nexus with the manufacture/clearance of excisable goods - CENVAT Credit allowed (Para 6).

Central Excise - CENVAT Credit - Eligibility of - Air Travel Agent's Service - there is no documentary evidence to show that the air travels made by the employees were in connection with the business of manufacturing and marketing of excisable products and not as part of any welfare scheme for the employees - Credit disallowed (Para 10).

Central Excise - CENVAT Credit - Eligibility of - Online Auction Service - A direct nexus stands established between online auction service and the clearance of excisable goods - Credit allowed (Para 10).

2012-TIOL-1287-CESTAT-BANG M/s Dukes Consumer Care Ltd Vs CCE (Dated: March 30, 2012)

Central Excise – Stay / Pre-deposit - Classification – Revenue classified Wafers coated with Chocolates under Chapter Sub Heading No.1905 3215 whereas the assessee claims it under Chapter Sub Heading No.1905 3211 - prima facie, the assessee has no strong case in their favour – Ordered for Pre-deposit of another Rs.1.50 Lakhs (Para 3 &4).

2012-TIOL-1280-CESTAT-DEL

M/s GEI Industries Systems Ltd Vs CCE (Dated: August 30, 2012)

Central Excise – Stay/Dispensation of pre-deposit – Exemption under Notification No 6/2006 CE dated 01.03.2006 for goods supplied against international competitive bidding – The applicants have not produced any evidence to establish claim that the goods were supplied against international competitive bidding – Further, the applicants have not complied with the condition of Notification No 21/2002-Cus dated 1.3.2002 – Contention that the condition prescribed for duty free import of the goods under a customs duty exemption cannot be applied to the central excise duty exemption when the same good are domestically procured requires in depth consideration, which is possible at the time of final hearing only – Pre-deposit of entire duty demand ordered.

2012-TIOL-1279-CESTAT-MUM

CCE Vs M/s Glaxo Smith Kline Pharmaceuticals Ltd (Dated: April 20, 2012)

SCN does not spell out as to how the assessee had suppressed the material facts to evade payment of duty – merely saying that the assessee suppressed the facts is not enough – no error apparent on record in Tribunal order vacating the penalty and allowing the appeal – ROM application filed by Revenue rejected: CESTAT [para 5]

2012-TIOL-1278-CESTAT-MUM

M/s Bombay Chemical Pvt Ltd Vs CCE (Dated: March 23, 2012)

Goods cleared on payment of duty to customers were returned partly for the purpose of repacking – original invoices were not returned hence applicant took credit on the basis of triplicate copies of invoices – Tribunal decision in BAPL Industries Ltd. - (2006-TIOL-179-CESTAT-MAD) supports the case of the applicant – payment of pre- deposit of adjudged dues waived and stay granted: CESTAT [para 5]

2012-TIOL-1275-CESTAT-DEL BHEL Vs CCE, Kanpur (Dated: April 10, 2012)

Central Excise - Provisional Assessment - Price escalation clause - Differential duty paid before finalisation of provisional assessment - Liability to pay Interest - Stay / Dispensation of pre-deposit - An assessee in spite of provisional assessment, pays the differential duty on price escalation amount received, before the order of provisional assessment finalization under Rule 7(3), is doing so under Section 11A(2B),and interest liability under Section 11AB would be attracted which would be from the 1st day of the month succeeding the month for which the differential duty has become payable. Pre-deposit ordered. (Para 7)

2012-TIOL-1274-CESTAT-BANG

M/s Sampre Nutrition Ltd Vs CC & CCE (Dated : January 19, 2012)

Central Excise – Valuation - MRP/RSP – Sugar Confectionary – Appellants are manufacturing sugar confectionery, on job work basis, out of raw materials supplied by the principle manufactures, and determined the assessable value of the goods in terms of Ujagar Prints formula and paid duty accordingly – Revenue issued Show Cause Notice proposing for assessment of goods under Section 4A and demanding differential duty – Followed the decisions of Swan Sweets (2006-TIOL-229-CESTAT- MUM) and Central Arecanut and Cocoa Marketing and Processing Cooperative Ltd. - Individual pieces of confectionary cleared in whole packs of jars, boxes or pouches are not multi-piece packages and are assessable under Section 4 (Para 9, 10, 11 & 12).

2012-TIOL-1271-CESTAT-MUM

Castrol (India) Ltd Vs CCE (Dated : May 16, 2012)

Appellant manufacturing pouches of 150 ml and 250 ml of Heavy Duty Coolant (HDC) and claiming exemption under notification 67/95-CE – HDC is supplied separately in pouches along with engine oil GTX Extra and hence cannot be considered as an input for manufacture of engine oil – demand rightly confirmed – since there is clear intention to evade payment of duty penalty has been rightly imposed – appeal dismissed: CESTAT [paras 4 & 5]

2012-TIOL-1270-CESTAT-MUM

Cable Corporation Of India Ltd Vs CCE (Dated : January 10, 2012)

Appellant supplying Insulated electric wire cables to M/s Sulzer Flovel Hydro Ltd. for manufacturing electro mechanical equipment and claiming benefit of exemption notfn. 108/95-CE - since hydro project finance by World Bank was allotted to M/s Sandur Manganese & Iron Ore Ltd. and not to M/s Sulzer Flovel Hydro Ltd. benefit of notification is not available – cum-duty benefit permissible in view of SC decision in Maruti Udyog Ltd. - (2002-TIOL-34-SC-CX) – Appeals filed by Appellant & Revenue dismissed: CESTAT [paras 5, 6, 7 & 8] 2012-TIOL-1268-CESTAT-MUM

Bazargaon Paper & Pulp Pvt Ltd Vs CC & CC (Dated : July 24, 2012)

CE - Kraft board - Notification 4/2006-CE, sr. no. 90 as amended by notfn. 4/2008-CE prescribing Nil rate of duty is a conditional exemption notification and not an absolute one – assessee had before 01.03.2008 chosen to pay duty in terms of sr. no. 90 of the notification and after amendment paid duty in terms of sr. no. 93 as applicable to all goods – Prima facie merits in the contention of applicant – Pre-deposit of more than One crore rupees duty waived and stay granted: CESTAT [paras 6, 8 & 9]

Also see analysis of the Order

2012-TIOL-1267-CESTAT-DEL

M/s Talson Mill Store Vs CCE (Dated : July 17, 2012)

Central Excise - CENVAT - Bogus Transaction - Evidence - The Revenue has not bothered to conduct inquiries either from the assessee or from the transporters or the actual manufacturer of the goods or from the recipient of the goods. In the absence of any such investigation, reliance on the sole statement of one dealer which in any case does not apply to the goods dealt with by the present assessee, cannot be appreciated. penalty set aside. (Para 7)

2012-TIOL-1266-CESTAT-DEL

M/s Tricolite Electrical Industries Ltd Vs CCE (Dated : May 2, 2012)

Central Excise – Cash Refund of accumulated CENVAT credit in terms of Rule 5 of the Cenvat Credit Rules, 2004 – Cash Refund in respect of supplies to 100% EOUs and Delhi Metro Rail Corporation (DMRC) was disallowed on the ground that these supplies, though deemed exports, are not covered by Rule 5 of the Cenvat Credit Rules - It is clear that the Rule 5 is applicable only in respect of the use of Cenvat credit availed inputs or input services for manufacture of the goods which are cleared for export under bond/letter of undertaking or are used in the manufacture of intermediate product cleared for export - The supplies to DMRC by availing Notification No. 6/2006-CE which though deemed exports in terms of the provisions of EXIM policy, cannot be treated as export for the purpose of Rule 5 - As regards supplies to 100% EOUs, as rightly observed by the Commissioner (Appeals) there is no evidence that the goods have been used by those EOUs in manufacture of finished product which were exported out of India under bond (Para 6).

2012-TIOL-1265-CESTAT-DEL M/s Trusine Electronics Pvt Ltd Vs CCE (Dated : January 31, 2012)

Central Excise – CENVAT Credit – The case of the department is that the appellant did not receive materials from the manufacturer who issued the invoice - T his issue can be decided only by a proper examination of evidence appearing against the appellants and their defense which has not been done by the adjudicating authority – Matter remanded (Para 7 & 9).

2012-TIOL-1261-CESTAT-BANG

M/s MIC Electronics Ltd Vs CCE (Dated : March 22, 2012)

CENVAT Credit - Stay/Pre-deposit of Duty - Appellant is having two units (one DTA Unit and one 100% EOU Unit) - DTA unit imported capital goods by availing the benefits of Notification No.25/2002-Customs dated 1.3.2002 and removed such goods to EOU unit without reversing the credit taken and without invoice - Plea of Revenue neutrality - substantial provision in Rule 3(5) of CENVAT Credit Rules is clear that when goods on which credit was taken is removed as such, the credit is required to be reversed - The reference to mode of clearance using a document referred to in Rule 9 is procedural in nature - the DTA unit having taken the credit on the capital goods, are required to reverse the credit in terms of Rule 3(5) of CENVAT Credit Rules - Ordered for reversal of CENVAT credit of Rs.28,96,982/- which is equal to CENVAT Credit taken (Para 6.2 to 6.5).

2012-TIOL-1260-CESTAT-AHM

M/s Sanghi Forging And Engineering Ltd Vs CCE (Dated : April 26, 2012)

Central Excise - CENVAT - MS Plates, Angles, TMT Bars - Capital goods - Denial of credit - Stay / Dispensation of pre-deposit - The credit has been denied on the ground that MS Plates, Angles, TMT Bars on which the credit has been taken cannot be considered as capital goods. It is seen that the items have been used in the manufacture of capital goods within the factory and therefore are covered by the Explanation (2) to Rule 2(k) of CENVAT Credit Rules, 2004. The assessee is eligible for CENVAT Credit, even if it has been taken wrongly treating it as capital goods. Prima facie case made out for stay. (Para 3)

2012-TIOL-1257-CESTAT-MUM

M/s Bhagwati Steelcast Ltd Vs CCE (Dated : July 10, 2012)

CE - evidences unearthed by the department in investigation are several and overwhelming and each piece of evidence corroborated the other - once the department by way of evidence has shown that the transactions are not genuine, the onus of proving that the transactions are genuine lay on the appellants which they had failed to do miserably - credits taken on duplicate/parallel invoices/vehicles shown in invoices as per RTO report were non-transport vehicles viz. scooter, motor cycle etc./invoices issued by dealers based on ship breakers' invoices who had shut shop long ago - Larger period of limitation correctly invoked - Credit rightly denied by adjudicating authority: CESTAT by Majority. [paras 27.6, 28.3, 29.5 & 30]

Also see analysis of the Order

2012-TIOL-1255-CESTAT-AHM

CCE Vs M/s Dhakad Metal Corporation (Dated : July 27, 2012)

Central Excise - CENVAT - Non-receipt of goods - Demand - Denial of Cross examination of witness - The assessee has submitted that the main supplier has factory to manufacture and clear the inputs on payment of duty and the goods have been transported through road to the factory, than the only evidence available with the department is the statements of the brokers who are third party and they need to be examined or cross-examined for testing the veracity of the statements. Matter remanded for granting an opportunity of personal hearing to the assessee and also producing the four brokers for cross-examination. (Para 10 & 11)

2012-TIOL-1254-CESTAT-AHM

CCE Vs M/s Apollo Tyres Ltd (Dated : June 29, 2012)

Central Excise - Refund - Unjust enrichment - Burden of Proof - Goods sold to Defence Organisation at a price higher than the contracted value. Credit notes issued to the purchaser for differential amount. The purchaser being the defence organisation of Government of India, the question of passing on the excise duty to any other person does not arise and ordinance depot not being a manufacturer of any goods, could not have taken Cenvat Credit also and further the Commandant also certified that they have not taken Cenvat Credit nor they have paid excise duty to the assessee for differential value shown in the invoice. Refund allowed. (Para 6)

2012-TIOL-1249-CESTAT-DEL

M/s Indian Wood Products Co Ltd Vs CCE (Dated : July 25, 2012)

CE - Imported Gambier sent by appellant to job worker for processing - gambier extract processed by job worker and returned to appellant - same is blended with Katha which is cleared at nil rate of duty - Duty demand on gambier extract raised on appellant - It is settled law that when a principal manufacturer gets his goods manufactured from a job worker on job work basis and the transaction between them are on principal to principal basis, it is the job worker who would be liable to pay duty & not the principal manufacturer - Prima facie case in favour - Pre-deposit of Rs.31 Crores duty waived and Stay granted: CESTAT [paras 6, 7 & 8]

Also see analysis of the Order 2012-TIOL-1248-CESTAT-MUM

NIPA Offset Printers Vs CCE (Dated : February 29, 2012)

SSI exemption - Catch covers cleared with the brand name of others - since catch covers are packing materials used to pack the strip of tablets and capsules, benefit of SSI exemption is available - prima facie strong case in favour - Pre-deposit waived and stay granted: CESTAT [para 2]

2012-TIOL-1247-CESTAT-MUM

Parle International Vs CCE (Dated : April 25, 2012)

S. 4A - Valuation - Packaged drinking water wrapped in one package of Twelve bottles and supplied to Jet Airways and Sahara Airways - MRP mentioned on the pack though the bottles did not have the price - assessment should be u/s 4A of the CEA, 1944 and not s.4 as contended by the department - Order set aside and appeal allowed: CESTAT [paras 4 & 5]

2012-TIOL-1246-CESTAT-MUM

M/s Precision Metals Vs CCE, Raigad (Dated : July 13, 2012)

Cenvat credit on inputs received from 100% EOU - assessee taking credit of E Cess & SHE Cess during the period May, 2007 to October, 2008 - prior to amendment of rule 3(7)(a) by notification 22/2009-CE(NT) dated 07.09.2009 availment of credit of Education Cess and Secondary and Higher Education Cess was not admissible - since there are decisions of Tribunal permitting such availment prior to amendment and prior to issuance of SCN plea of bonafide belief has considerable force - appellant succeeds on ground of limitation alone - order of Commissioner (A) set aside and appeal allowed: CESTAT [para 5]

2012-TIOL-1241-CESTAT-DEL

Punjab Pesticides Industrial Co-Operative Society Ltd Vs CCE (Dated : June 29, 2012)

Appellant manufacturing insecticides on job work basis and clearing the same in 25 kgs packs by adopting transaction value on the ground that those packages were meant for industrial consumers – department seeking valuation u/s 4A of CEA, 1944 - since consignee M/s Bayer Crop Science Ltd. is registered with the Excise Department as dealer and not an industrial producer, exemption from affixing MRP not available – so also, 25kgs pack are out of the scope of rule 2A of SWAM Rules – Pre-deposit ordered: CESTAT [paras 6, 7 & 8] Question of limitation is a mixed question of law which cannot be looked into at the prima facie stage [para 7]

Also see analysis of the Order

2012-TIOL-1240-CESTAT-DEL

M/s Swaraj Foundry Division Vs CCE (Dated : July 10, 2012)

Central Excise - Valuation - Captive Consumption - Inclusion of 'Interest on Loans' - Costing of the goods should be done strictly as per CAS-4 and the element of 'interest on loans' is not includable. This applies to the period prior to 13-02-2003, wherein the Board has clarified that costing of goods is to be done as per CAS-4 norms. (Para 7 & 9)

2012-TIOL-1239-CESTAT-KOL

New Allenberry Works Vs CCE (Dated : June 7, 2012)

Central Excise - Duty paid erroneously - Suo moto credit - Denial of - Penalty imposed by Commissioner (Appeals) - Any excess payment made to the Department ought to be claimed by filing a refund claim as prescribed under Section 11B of the Central Excise Act. The Commissioner (Appeals) has erred in imposing penalty without issuing any notice as required under Section 35A (3) of the Central Excise Act and also erred in not mentioning the specific provision under which penalty imposed. Consequently, the penalty imposed is set aside. (Para 4)

2012-TIOL-1233-CESTAT-MUM

Dicitex Decor Pvt Ltd Vs CCE (Dated : May 25, 2012)

Cenvat Credit - Hangers are nothing but packing material in which the fabrics have been placed – Booklet contain designs and without the designs fabrics could not have been manufactured – both are inputs as per Rule 2(k) of the Cenvat Credit Rules, 2004 – even if it is held that these are not inputs, since these goods were exported along with man-made fabrics on payment of duty they are rightly entitled for the credit – Appeal allowed: CESTAT [para 7]

Also see analysis of the Order

2012-TIOL-1232-CESTAT-AHM M/s New Era Metals Vs CCE (Dated : July 3, 2012)

Central Excise - Condonation of delay - Bonafide belief - The affidavit filed in support of the application for condonation of delay has given sufficient and acceptable justification in as much as that partner of the firm could have been under bonafide belief that in appeal filed by the other partner, the ground that the goods are not liable for confiscation has been taken up. Delay condoned. (Para 6)

2012-TIOL-1228-CESTAT-DEL

CCE Vs M/s Dugar Tetenal India Ltd (Dated : July 2, 2012)

CE - Brand name "Tetenal" belongs to M/s. Tetenal Vertribs GmBH, Germany - composite brand name "Dugar Tetenal" is not registered in the name of the respondent and hence has to be treated as the brand name of another person and resultantly the respondent would not be eligible for SSI exemption - Revenue appeal allowed: CESTAT [paras 7.2, 8 & 9]

Also see analysis of the Order

2012-TIOL-1227-CESTAT-BANG

M/s Rayalaseema Steel Re-Rolling Mills (P) Ltd Vs CCE & ST (Dated : May 15, 2012)

Central Excise - Job worker - Demand - Non-Compliance with Section 35 F of the Central Excise Act, 1944 - Appellant is a job worker and undertaking job works on behalf of principal manufacturer in terms of Notification No.214/1986-C.E Dated 25.3.1986 - During the period of dispute, their activities were strictly in accordance with the aforesaid Notification - However the fact remains that the principal manufacturer did not have manufacturing facility and could not have given any undertaking to the department in terms of the above Notification - It is also a fact, today, that the principal manufacturer has no registration with the department - Ordered for pre-deposit of 25% of the duty amount - Mater remanded (Para 4).

2012-TIOL-1225-CESTAT-MUM

Maharashtra Seamless Ltd Vs CCE (Dated : January 6, 2012)

Cenvat Credit - Electricity produced in windmill situated away from factory transferred to Maharashtra Board Power Grid which in turn supplies equivalent quantum to appellant's factory - Services used for such windmills have been held to be Input Services in applicant's own case by SMB – contrary decisions also available - applicant has made a case for total waiver of pre-deposit: CESTAT by Majority [paras 5, 6 & 7]

Also see analysis of the Order 2012-TIOL-1224-CESTAT-BANG

CCE Vs M/s Smilax Laboratoreis Ltd (Dated : May 23, 2012)

Central Excise – Refund – CENVAT - Credit of duty paid taken on MS angles, MS channels, plates, beams, etc., as ‘capital goods' - Reversed the credit taken in the wake of audit objections - Subsequently, the respondent claimed refund of the amount – the substantive question to be settled in this case before granting or rejecting the refund claim is whether the structural items in question were used in the manufacture of ‘capital goods' classifiable under chapter 84 of the CETA Schedule - The assessee could not place the necessary materials evidencing exact manner of use of the structural items, before the original authority - Case remanded to original authority (Para 4, 4.1 & 4.2).

2012-TIOL-1220-CESTAT-BANG

M/s Carbone Lorraine India Pvt Ltd Vs CCE (Dated : May 25, 2012)

Central Excise – Appeal - Limitation - Delay in filing appeal for 36 days - The conduct of the party is, by all means, blameworthy - Suffice it to say that the appellant- company did not care to file the appeal within the prescribed period even though the law permitted them to file necessary documents even after filing the appeal - Sole reason stated in support of the prayer for condonation of the delay of the appeal is unimpressive - Nevertheless, one mitigating factor which exists to the benefit of the appellant is that the delayed reply to the SCN was not considered by the appellate authority and, to that extent, natural justice was denied to the party - Denial of natural justice is some thing which can not be perpetrated - allowed COD application (Para 2).

Central Excise – Stay/Pre-deposit of Duty - Denial of CENVAT credit - the appellant had taken CENVAT credit on input services but they could not establish the tax-paid nature of the input services by producing the relevant documents before the original authority - Before the appellate authority, no documentary evidence of payment of service tax by the input service providers was adduced – Prima facie, the appellant has not made out a case - Ordered for pre-deposit of Rs.4 Lakhs (Para 3).

2012-TIOL-1219-CESTAT-DEL

M/s Shiv Shakti Agrifood Pvt Ltd Vs CCE (Dated : July 11, 2012)

One wrong decision cannot be the basis of another wrong decision – whether in respect of packing machines for Pan masala/gutka the duty would be payable only on pro-rata basis for the number of days in the month during which the machine had functioned or would be payable for the whole month without giving abatement for the period for which the machine was sealed - Commissioner allowing payment of duty on pro-rata basis in another case when no such provision exists – Rule 10 of PMPM rules does not apply in case on hand - Prima facie case not in favour – Deposit ordered of entire demand of Rs.1 Crore: CESTAT [paras 5, 6, 7, 8, 10 & 11] Prima facie abatement under Rule 10 of PMPM Rules cannot be given in respect of individual machines which may have been sealed for a continuous period of 15 days or more, when during that period, other machines were functioning...para 6

There is no provision for abatement of duty on the machines which were in sealed condition during the month and for this reason were not operational - though this provision in PMPM rules may appear to be harsh, it has to be borne in mind that the Government notifies items under Section 3A having regard to Nature of process of manufacture or production of excisable goods of any specified description, extent of evasion of duty in regard to such goods, or such other factors as may be necessary to safeguard the interests of revenue - PMPM Rules have been framed taking into account the ground reality of rampant duty evasion by Gutka and Pan Masala units...para 8

Also see analysis of the Order

2012-TIOL-1218-CESTAT-DEL

M/s Shilpi Cable Technologies Ltd Vs CCE (Dated : July 3, 2012)

Central Excise - CENVAT - Irregular availment of cenvat - Inputs traded - Stay / Dispensation of pre-deposit - The accessories against which the assessee has claimed cenvat credit were cleared by the appellant on payment of excise duty. The aforesaid payment ought to been adjusted against the cenvat credit wrongly availed by the assessee. Pre-deposit of balance demand along with interest and penalty ordered. (Para 6)

2012-TIOL-1217-CESTAT-DEL

Shiva Tobacco Co Vs CCE (Dated : July 24, 2012)

Central Excise - Classification - Chewing Tobacco vis-à-vis Spit Tobacco - Stay / Dispensation of pre-deposit - The report of Chemical Analyst is inconclusive as to whether the product in question is classifiable as chewing or as spit tobacco. Matter requires thorough examination. Prima facie, case made out for waiver of pre-deposit. (Para 10)

2012-TIOL-1216-CESTAT-DEL

M/s Sharda Forging And Stamping P Ltd Vs CCE, Ghaziabad (Dated : July 12, 2012)

Central Excise - Suo-moto re-credit of CENVAT - Eligibility of - Assessee is within his rights to take suo-moto credit of the amount, on receipt of favourable decision in appeal, under intimation to the Revenue. (Para 4 & 5) 2012-TIOL-1211-CESTAT-MUM

M/s SGS India Pvt Ltd Vs CCE (Dated : July 10, 2012)

S.4 of CEA, 1944 – Valuation - ‘marker', ‘test kit' and ‘IAS column' are different items used for different purposes - As the Test kit and IAS column are traded items, the same cannot be considered as a part of the manufactured goods i.e Marker so as to add their value in the AV of the ‘Marker' – pre-deposit of adjudged dues in excess of Rs.1.62 crores waived and stay granted: CESTAT

Also see analysis of the Order

2012-TIOL-1210-CESTAT-MUM

M/s Lear Automotive India Pvt Ltd Vs CCE Nashik (Dated : November 17, 2011)

CX – Valuation - Tooling advance and value of inputs received free of cost is required to be included in the AV of goods supplied to M/s M & M – although rule 6 of Valuation Rules, 2000 is the correct rule to be applied the adjudicating authority has confirmed the duty u/r 11 – such an invocation can be termed superfluous – as long as section 4(3)(d) is invoked, demand is legally sustainable – under self assessment scheme the onus is on the assessee to determine his tax liability correctly – if they had any doubt, they should have opted for provisional assessment – assessee's conduct reveals malafide intention – Extended period rightly invoked – Demand of Rs.2.69 Crores upheld and appeal dismissed: CESTAT by Majority

Also see analysis of the Order

2012-TIOL-1209-CESTAT-DEL

M/s Kisan Sahkari Chinni Mills Ltd Vs CCE, Lucknow (Dated : June 15, 2012)

Central Excise - CENVAT - Inputs used for repair of immovable items - Demand of credit availed - Limitation - Extended period - During the relevant time there were decisions of the Tribunal that credit was available on goods used in the repair of machinery and based on these decisions credit was availed by the assessee. Extended period not invokable. (Para 5)

2012-TIOL-1208-CESTAT-DEL

M/s Jain Industrial And Lighting Corpn Vs CCE (Dated : June 18, 2012)

Central Excise - CENVAT - Inputs - Non-receipt of goods - Evidence - Director admits non receipt of goods. Medium of transport was not a goods transport vehicle. The concurrent finding pointed out that paper credit was enjoyed by assessee without the input being received in its factory. Denial of Cenvat credit upheld. (Para 6.3)

2012-TIOL-1200-CESTAT-MUM

Hindustan Petroleum Corporation Ltd Vs CCE (Dated : June 22, 2012)

Cenvat credit taken of the service tax paid on the repairs and maintenance undertaken in the housing complex of the employees – decision of the Bombay HC has to be followed in preference to the decision of AP High Court as it is the jurisdictional High Court – prima facie applicant has not made a case for complete waiver of the adjudged dues – appellant has already reversed cenvat credit without protest, interest to be pre-deposited for obtaining stay: CESTAT [para 5]

2012-TIOL-1199-CESTAT-MUM

Hindustan Copper Ltd Vs CCE (Dated : April 30, 2012)

Capital goods written off in FY 2005-06 & 2006-07 as they were not put to use for more than 5 years – assessee reversed Cenvat credit along with interest and also paid 25% penalty – challenge only to interest and penalty – prior to amendment by notfn. 26/2007-CE (NT) dated 11.5.2007, there was no provision for reversal of credit – in these circumstances demand for interest and penalty set aside and appeal allowed: CESTAT [paras 7 & 8]

2012-TIOL-1198-CESTAT-MUM

Indian Agro Chem Industries Pvt Ltd Vs CCE (Dated : May 22, 2012)

Applicants are engaged in conversion of Crude sulphur lumps/granules into sulphur power and rolls etc. – revenue demanding C.Ex duty on the ground that the process undertaken amounts to manufacture – in case of similarly placed assessees who are paying duty by availing cenvat credit, revenue has denied the credit on the ground that the said process does not amount to manufacture - prima facie case for total waiver of adjudged dues of Rs.1.89 crores – pre-deposit waived and stay granted: CESTAT [para 7]

2012-TIOL-1193-CESTAT-BANG

M/s Remedia Laboratories Pvt Ltd Vs CCE (Dated : January 17, 2012)

Negligence of the employee of the applicant cannot be considered as a sufficient cause for not filing the appeal within the period of limitation – appellant although receiving order in January 2010 failing to file appeal within the period of limitation and shifting blame on employee - COD application dismissed: CESTAT [para 5] 2012-TIOL-1192-CESTAT-BANG

CCE & CC Vs M/s Shanthi Auto (P) Ltd (Dated : April 12, 2012)

Central Excise - Refund - Delay in sanction of refund - Payment of Interest by revenue on account of delay in sanction of refund - the appellate Commissioner's order sanctioning refund should be deemed to be an order passed under sub-section (2) of Section 11B, which would mean that the date on which the original authority first rejected the refund claim should be deemed to be the date of grant of refund claim - This legal position which was overlooked by the original authority in the subsequent proceedings correctly understood by the learned Commissioner (A) and accordingly interest was ordered to be paid - The order passed by the ld. Commissioner (A) for payment of interest under Section 11BB of the Act on the amount of duty refunded is liable to be sustained (Para 3)

2012-TIOL-1190-CESTAT-AHM

CCE Vs M/s Reliance Industries Ltd (Dated : July 23, 2012)

Central Excise - CENVAT - Capital goods not installed - Confiscation - Penalty - The adjudicating authority in his findings holds that the goods are not liable for confiscation but in the order portion holds to the contrary. Since there is an inherent contradiction in the order itself, it is better that this portion of the order is reconsidered by the adjudicating authority and pass an order after following the principles of natural justice. (Para 5 & 7)

2012-TIOL-1189-CESTAT-AHM

M/s Perfect Transport Company Vs CCE (Dated : April 25, 2012)

Central Excise - Clandestine Clearances - Penalty on transporter - Stay / Dispensation of pre-deposit - In the absence of inculpatory statement by the transporter or any statements specifically indicating that the transporter had been informed of the non duty paid nature of the goods being cleared by the manufacturer, it can be said that the transporter has made out a prima-facie case for waiver of pre-deposit. (Para 2)

2012-TIOL-1188-CESTAT-MUM

M/s Mahindra & Mahindra Ltd Vs CCE (Dated : June 22, 2012)

Assessee is entitled to avail CENVAT credit in respect of inputs and input services used in the manufacture of Tractors exported under Bond/UT-1 – Order confirming demand of Rs.27.38 Crores set aside – payment of duty on goods exempted absolutely under notfn. 6/2006-CE by availing CENVAT on inputs is illegal in terms of s. 5A(1A) of CEA, 1944 – demand confirmed of Rs.15.40 Crores upheld – Credit taken of Rs.9.36 Lakhs on advertisement services in respect of exempted tractors cleared for home consumption is improper: CESTAT [paras 8, 10 & 13]

Also see analysis of the Order

2012-TIOL-1187-CESTAT-MUM

CCE Vs M/s Metro Industries (Dated : February 15, 2012)

Brand name "Tiger" is registered jointly with the Registrar of Trade Marks in the name of Smt. Kamlabai B. Ashrani and Hasmukh A. Shah – since M/s Metro Industries is a proprietary concern of Hasmukh A. Shah, it cannot be said that the respondent assessee are manufacturing goods with the brand name of others – benefit of SSI notification 1/93-CE available to BFlack Essence of phenyl cleared under the brand name of "Tiger" – Revenue appeal dismissed: CESTAT [paras 3 & 4]

2012-TIOL-1186-CESTAT-DEL

M/s National Engineering Industries Ltd Vs CCE (Dated : July 2, 2012)

Central Excise - Shortages / Excess of certain inputs and finished goods - Internal Audit - Demand of Irregularly availed CENVAT Credit / Duty - Stay / Dispensation of pre-deposit - The allegation of clandestine removal of Cenvat credit availed inputs and finished products and excess stock of certain inputs and finished goods with intent to clear the same clandestinely, is based only on the report of the internal auditors. Prima facie, there appears to be merit in the assessees plea that these discrepancies are due to mistake in the accounting and the same do not reflect actual shortage or excess. The requirement of pre-deposit of Cenvat credit demand, interest and penalty is waived. (Para 6)

2012-TIOL-1183-CESTAT-MUM

M/s Sharda Ispat Ltd Vs CCE (Dated : May 3, 2012)

Limitation – appellant clearing waste and scrap generated in one unit to independent buyers at a higher price and to second unit of theirs at a lower price - availability of Cenvat credit by recipient unit is by itself not a conclusive or decisive consideration – plea of Revenue neutrality not tenable – Larger period invokable for confirming duty demand – Appeal dismissed: CESTAT by Majority. [paras 6, 7 & 9]

Also see analysis of the Order 2012-TIOL-1181-CESTAT-MUM

M/s Meghdoot Chemicals Ltd Vs CCE (Dated : June 11, 2012)

CE - Common inputs used in the manufacture of dutiable and exempted goods without maintaining separate accounts under rule 6 of CCR, 2004 – retrospective amendment to rule 6 by the FA, 2010 requires assessee to reverse proportionate credit – pre- deposit ordered of Rs.15 lakhs against confirmed demand of Rs.1.65 Crores: CESTAT [para 5]

Also see analysis of the Order

2012-TIOL-1180-CESTAT-BANG

M/s OM Shakthi Hydraulics Pvt Ltd Vs CCE (Dated : May 23, 2012)

Central Excise – Stay/Pre-deposit of Duty - Default in payment of Monthly Duty – Monthly duty amount of February, 2008 paid on 1.12.2008 along with interest - In the impugned order, it was held that the clearances made during the period from February 2008 to November 2008 would be treated as non-duty paid and that the CENVAT credit utilized was irregular – Held that : The appellant to pay the demanded amount in cash and allowing credit of the said amount would amount to double payment of duty – Ordered for pre-deposit of Rs.2 Lakhs towards penalty (Para 3.1 & 3.2).

2012-TIOL-1179-CESTAT-BANG

M/s PSL Ltd Vs CCE CC & ST (Dated : April 27, 2012)

Central Excise – Stay/Pre-deposit of Duty – Interest – Interest liability on transfer of credit of Education Cess effected by the appellant to make it a credit of Basic Excise Duty - The taking of credit of Education Cess in the past was not irregular - But, when it was transferred to the credit column relating to Basic Excise Duty, it turned out to be a case of irregular taking of Basic Excise Duty in the CENVAT account and that credit was reversed only in August 2009 - On these facts, Rule 14 of the CENVAT Credit Rules, 2004 is squarely applicable and the decision in the case of Ind-Swift Laboratories Ltd. is also squarely applicable – Ordered for pre-deposit of Rs.5 Lakhs (Para 4)

2012-TIOL-1174-CESTAT-MUM

Tristar Enterprises Vs CCE, Thane-I (Dated : April 20, 2012)

Assessee availing Cenvat credit on inputs and paying duty on final product – Department alleging that since activity does not amount to ‘manufacture' there is no question of availment of credit or payment of duty and collecting the same from consignee – Demand raised for recovery of Cenvat Credit and also for recovery u/s 11D of the CEA, 1944 totaling Rs.6 crores – as the applicant paid more duty than credit availed prima facie applicant has made a strong case for waiver of pre-deposit – Stay petition allowed: CESTAT [para 6]

Also see analysis of the Order

2012-TIOL-1173-CESTAT-MAD

CCE Vs M/s M R Krishnamurthy Co-Operative Sugar Mills Ltd (Dated : April 10, 2012)

Central Excise - CENVAT Credit - Capital goods used for generation of electricity - The facts are in dispute as to whether the entire production of electricity from the impugned co-generation plant in dispute was supplied to the Electricity Board or it was partly used for sugar production -The cited case law in the case of Maruti Suzuki was delivered on 17.08.2009 and hence the authorities below had no opportunity to take the same into account - Matter remanded for passing a fresh order.

2012-TIOL-1172-CESTAT-MUM

Ms Mahindra Ugine Steel Co Ltd Vs CCE (Dated : July 6, 2012)

Cenvat - Assessee having their factory at Khopoli in Raigad Commissionerate - Service Tax paid on ‘rent' by assessee for their sales office situated at Bangalore – whether input Service u/r 2(l) of CCR, 2004 – case law of Bharat Fritz Werner Ltd. - (2011- TIOL-1065-CESTAT-BANG) is directly not applicable to the facts of the case – amount involved is also Rs.18,931/- Pre-deposit ordered: CESTAT [para 5]

2012-TIOL-1171-CESTAT-MUM

M/s Khanapur Taluka Co-Op Spinning Mills Ltd Vs CCE (Dated : June 11, 2012)

Clearance by 100% EOU of goods into DTA – provisions of notfn. 23/2003-CE are applicable and not that of 30/2004-CE since the notification issued u/s 5A(1) of the CEA, 1944 does not specifically provide for applicability to EOU – not a fit case for waiver - Pre-deposit ordered: CESTAT [paras 5 & 6]

2012-TIOL-1170-CESTAT-DEL

CCE Vs M/s Jain & Company (Dated : April 18, 2012)

Central Excise - Un-confirmed demand - Refund of pre-deposit - The adjudication proceedings are on and demand is yet to be confirmed. Department has no right to retain the amount deposited during investigation till the demand is adjudicated against the assessee. (Para 7)

2012-TIOL-1165-CESTAT-AHM

M/s Vishal Malleable Limited Vs CCE, Surat (Dated : June 29, 2012)

When there is a specific exclusion on availment of input credit, the submission that there was no suppression of this fact just because there was no column in ER-1 or no specific requirement of intimating the department or submitting invoice is not acceptable - if claim of the appellant is accepted on technical grounds, it would be totally unfair to the honest assesses who sincerely fulfil the statutory obligations – Appeal rejected: CESTAT [para 5]

Once there is a clear provision, there cannot be any doubt as regards admissibility of cenvat credit, suppression of fact of availment of cenvat credit is established and need not be proved at all. [para 5]

Having noticed (it is settled principle that ignorance of law is no excuse) that the input credit is not available on LDO, if suppression of fact is not to be upheld, appellant at least would be required to show that either they had sought clarification or they had intimated the department, even though it was not required by law. [para 5]

Appellant cannot take shelter behind technicalities having availed the totally inadmissible and irregular credit knowing fully that credit was not available. [para 5]

Also see analysis of the Order

2012-TIOL-1164-CESTAT-DEL

M/s Bassi Steel Ltd Vs CCE, Chandigarh-II (Dated : July 13, 2012)

Central Excise – Stay/Dispensation of pre-deposit - Clandestine clearance of MS Ingots allegedly manufactured from unaccounted scrap / sponge iron – Appellant also declared undisclosed income to the Income Tax – Appellant's contention that there is no change in power consumption does not prove anything - No prima facie case has been made out for waiver of pre-deposit – Pre-deposit ordered.

2012-TIOL-1163-CESTAT-DEL

M/s ANU Industries Ltd Vs CCE (Dated : June 18, 2012)

Cenvat Credit - Findings that only invoices were received and not inputs have remained un-assailed without leading any contradictory evidence – evidence gathered in the form of statements remain un-refuted – basis of adjudication has not been demolished by appellant – demand upheld and appeal dismissed: CESTAT [para 5] 2012-TIOL-1158-CESTAT-MUM

Tata Steel Ltd Vs CCE, Mumbai (Dated : January 12, 2012)

Cenvat Credit – Input services utilized at depots for storing goods of many factories of appellant company - Invoices issued as Input Service distributors and credit availed by Borivali plant – whether credit is admissible for services availed in respect of other plants - Tribunal as a judicial body must follow principles of consistency when it decides the cases – since in appellant's own case for earlier period benefit allowed by Bench, pre-deposit waived and stay granted – CESTAT by Majority

Also see analysis of the Order

2012-TIOL-1157-CESTAT-BANG

CCE, Bangalore Vs M/s Indradhanush Printers Pvt Ltd (Dated : February 23, 2012)

Central Excise – Classification - Printed Paper Boards - The printing activity was essential rather than incidental – Printed Paper Boards are ‘products of printing industry' and classifiable under Chapter Sub Heading No.4901.90 of the Central Excise Tariff Act, 1985 - The products so classified include printed PVC films, printed polyethylene coated paper etc. – Upheld the Order of lower authority (Para 3).

2012-TIOL-1156-CESTAT-BANG

M/s Hunsur Plywood Works Pvt Vs CCE, Mysore (Dated : April 9, 2012)

Central Excise - Stay / Pre-deposit of Duty - CENVAT Credit - Reversal of CENVAT Credit taken on the Capital Goods at the time of removal from the factory after use - Appellant ought to have reversed the CENVAT credit taken on the capital goods at the time of its removal from the factory after use - The expression employed in the text of Rule 3(5) of CENVAT Credit Rules, 2002 is "removed as such" - It is difficult to hold that this expression covers only cases of removal of capital goods in virgin condition. Prima facie, removal of capital goods as such would mean removal of capital goods, whether used or not - Appellant has no prima facie case on merits (Para 3).

Central Excise - CENAVT Credit - Limitation - The learned counsel has pointed out that a similar show-cause notice had been issued to the appellant to April, 2008 and therefore the relevant facts should be considered to have been in the knowledge of the Department as early as in that month - The said show-cause notice pertained to certain used capital goods which had been removed without reversal of CENVAT credit - In the instant case, the appellant removed certain other capital goods likewise - The two facts are distinct and different and, therefore, Department knowledge of one cannot be considered as knowledge of the other - Appellant has no prima facie case on Limitation - Ordered for pre-deposit of entire duty amount (Para 4 & 5). 2012-TIOL-1155-CESTAT-BANG

M/s Challa Chlorides Pvt Ltd Vs CCE, Hyderabad (Dated : April 9, 2012)

Central Excise – Stay / Pre-deposit – CENVAT Credit – Supply of Invoices without supply of raw materials - In respect of some of the invoices, prima facie view that the materials covered by the said invoices have not been supplied and only invoices were supplied - Ordered for Pre-deposit of Rs.1,50,000/- (Para 5 & 6).

2012-TIOL-1150-CESTAT-DEL

M/s Dabur India Ltd Vs CCE, Ghaziabad (Dated : February 23, 2012)

Observations made by the adjudicating authority are not only in bad taste but also amount to contempt – We really feel at pain at the observations of the adjudicating authority commenting upon the correctness of the Tribunal's order - if the Revenue was not in agreement with the Tribunal's decision, it was open to them to challenge the same before the higher appellate forum – having not done so, it was not open to the adjudicating authority to again decide the matter – Matter remanded: CESTAT

Also see analysis of the Order

2012-TIOL-1149-CESTAT-MUM

Oriental Containers Ltd Vs CCE, Thane (Dated : March 19, 2012)

Cenvat – GTA Service - Place of removal automatically extends up to the port of shipment when the goods are to be delivered on board the vessel - If that is so, the cost of transportation from the factory to the port of shipment will automatically become part of value of the goods and whatever service have been availed up to that point would become an input service – Appeal allowed with consequential relief: CESTAT [para 6]

Also see analysis of the Order

2012-TIOL-1148-CESTAT-MAD

HCL Infosystems Ltd Vs CCE, Pondicherry (Dated : May 3, 2012)

Central Excise – CENVAT Credit on inputs/raw materials lying in stock consequent to the finished products becoming dutiable with effect from 01.03.2006 – The Commissioner while adjudicating the case and disallowing the credit in instances where excess credit was availed, should have considered the instances where the assessee availed short credit – Matter remanded to the adjudicating authority for fresh verification of the documents and allow the appellants to avail the short taken credit – Commissioner to decide the issue of penalty also afresh.

2012-TIOL-1147-CESTAT-MAD

CCE, Chennai Vs M/s Hindustan Lever Ltd (Dated : May 2, 2012)

Central Excise – Classification of Ponds Oil Control Face Wash – The product is appropriately classifiable under Chapter Heading 3402 as claimed by the assessee and not under Chapter 3304 as contested by the revenue.

2012-TIOL-1146-CESTAT-MAD

M/s Hindustan Unilever Ltd Vs CCE, Chennai (Dated : March 22, 2012)

Central Excise – CENVAT Credit – Manufacture of dutiable and exempted goods – Demand of 10% amount – Matter remanded in the light of retrospective amendment to the CENVAT Credit Rules vide Finance Act, 2010 to examine the application filed by the appellant under Section 73 of the Finance Act, 2010.

2012-TIOL-1140-CESTAT-MUM

JSW Ispat Steel Ltd Vs CCE, Raigad (Dated : June 12, 2012)

Oxygen plant set up in factory by M/s Inox Air Products and leased out to assessee - Cenvat credit availed on capital goods used in fabrication of ‘plant' - argument that since Oxygen Plant is not exigible, credit on components used therein is not available as Cenvat Credit is without any merit - applicant has a strong prima facie case in favour - Pre-deposit of Rs.4.85 Crores waived and stay granted: CESTAT [paras 7, 8, 9 & 10]

Also see analysis of the Order

2012-TIOL-1139-CESTAT-MUM

Asian Paints (I) Ltd Vs CCE, Mumbai (Dated : May 8, 2012)

CE - Supply of paint and thinner to Indian Navy by claiming exemption notification 64/95-CE on basis of certificate issued by Commandant, Warship Production for construction of naval vessels and not for consumption as stores – benefit not available – however, t here is no evidence on record to show that the certificate is procured by the applicant from the Indian Navy by wrong representation or mis-representation – extended period not invokable – demand time barred – Appeal allowed: CESTAT by Majority. [pars 9, 10 & 11]

Also see analysis of the Order

2012-TIOL-1138-CESTAT-MUM

Mahindra And Mahindra Ltd Vs CCE, Nasik (Dated : May 28, 2012)

Applicant clearing Motor Vehicles to their different Regional Sales Offices viz. depots from factory on payment of duty at the price prevalent at the depot – some motor vehicles subsequently transferred to other depots and sold at a higher value – differential duty demanded – applicant producing data that in majority of cases goods sold at lower value than on which duty was paid – applicant has made a strong case for waiver of pre-deposit in view of definition of ‘place of removal' and Rule 7 of the Valuation Rules, 2000 – Pre-deposit waived and stay granted: CESTAT [paras 7 & 8]

2012-TIOL-1131-CESTAT-BANG

M/s Prism Cement Ltd Vs CCE, Bangalore (Dated : February 17, 2012)

Central Excise – CENVAT – Denial of CENVAT Credit on certain input services which are used in or in relation to the manufacture of exempted goods - prima facie, the appellant could not have taken CENVAT credit on that part of the input services which was used in relation to the manufacture of the exempted product - It has been contended that the exemption Notification was conditional and therefore the goods in respect of which such exemption was availed cannot be treated as “exempted goods” for purposes of Rule 6 - This argument is flying in the face of the basic provisions of law and hence unacceptable – Ordered for pre-deposit of entire duty amount (Para 5 & 6).

2012-TIOL-1130-CESTAT-MUM

Tetra Pak India Pvt Ltd Vs CCE, Pune-I (Dated : May 17, 2012)

Cenvat Credit of Advertising Services – applicant advertising through media channels in respect of trading activity and reversing credit of Rs.10 lakhs along with interest by adopting principle contained in Explanation I, clause (c) inserted in rule 6(3D) of CCR, 2004 – presumption of Revenue that advertisement is made in respect of machinery which is also traded is factually not correct – Amount already deposited sufficient for hearing appeal – Stay petition allowed: CESTAT [paras 7 & 8]

Also see analysis of the Order 2012-TIOL-1129-CESTAT-DEL

CCE Vs M/s Granada Services Pvt Ltd (Dated : June 15, 2012)

Cenvat Credit availed on Outdoor Catering service for providing output service of Call Service Centre – eligibility thereof - when issue was examined by lower authorities, the law in the matter as declared by the Bombay High Court in Ultratech Cement ( 2010-TIOL-745-HC-MUM-ST ) was not available - if any amount is recovered from the employees, credit of service tax on such amounts cannot be taken as Cenvat credit - matter cannot be decided finally in favour of either party for the reason that the criteria laid down by high Court was not examined by lower authorities - Revenue will be right to make verification and make demand to the extent consideration for service is recovered from employees: CESTAT [para 5]

2012-TIOL-1122-CESTAT-MUM

CCE, Nashik Vs Pferd Tools Pvt Ltd (Dated : June 18, 2012)

Commissioner(A) passing an order in favour of assessee on three counts – Revenue while filing appeal before CESTAT challenging the order only on one count – deciding the only issue raised in grounds of appeal is merely academic – Appeal dismissed: CESTAT [para 3]

Also see analysis of the Order

2012-TIOL-1121-CESTAT-BANG

M/s Alphine Housing Development Corporation Ltd Vs CCE, Belgaum (Dated : December 30, 2011)

Central Excise – Stay/Pre-deposit of Duty – Demand of Interest under Section 11 AB on duty paid against supplementary invoice by invoking extended period – As held by the Hon'ble High Court in the case of Padmashri V. V. Patil S.S.K. Ltd (2007-TIOL- 419-HC-MUM-CX) any show-cause notice is not necessary for recovery of interest under Section 11AB of the Act on any amount of differential duty paid under sub- section 2B of Section 11A of the Act - The plea of limitation is, prima facie, untenable - Ordered for pre-deposit of entire interest amount (Para 4 & 5).

2012-TIOL-1120-CESTAT-BANG

M/s AL Steel Industries Vs CCE & CC, Thiruvananthapuram (Dated : March 6, 2012)

Central Excise – Stay / Pre deposit - Excisability – Supply of Channel Cross Arms, MS Cross Arms, Clamps to Kerala State Electricity Board - the products in question as well as the processes undertaken resulting in the emergence of these products remain the same both prior to 2002 and after 2002 - For the period prior to 2002, the goods have been treated as not amounting to manufacture and duty paid by them has been refunded - Prima facie, for the latter period the reliance placed on the decision of Mahindra & Mahindra Ltd. (2005-TIOL-1301-CESTAT-MUM) to come to the conclusion that the products emerge out of manufacture appears acceptable - Invocation of extended period of limitation may not be justified – demand for the normal period of limitation is liable to be paid after allowing the CENVAT credit - Ordered for pre- deposit of Rs.20 Lakhs (Para 6.1, 6.2 & 7).

2012-TIOL-1119-CESTAT-BANG

M/s Agi Glasspac Vs CC & CE, Hyderabad-IV (Dated : January 30, 2012)

Central Excise – Stay/Pre-deposit of Duty – Manufacture - Demand of duty on Metal & Paper Scrap - For any waste and scrap to be dutiable, they should conjunctively satisfy two tests viz., one of ‘manufacture' and the other of ‘marketability' - It is not in dispute that the waste and scrap were disposed of by sale by the appellant - Marketability is not in doubt - Most of the metal waste and scrap were generated during the course of manufacture of moulds which were captively used in the manufacture of excisable goods - The waste and scrap were generated in the course of manufacture of capital goods or excisable final products – Followed the decision of Grasim Industries ( 2011-TIOL-100-SC-CX) - Prima facie case against the entire demand of duty (Para 2).

2012-TIOL-1117-CESTAT-MUM

M/s L'Oreal India Pvt Ltd Vs CCE, Thane-I (Dated : June 14, 2012)

CX – Manufacture u/s 2(f)(iii) of CEA, 1944 – there is no evidence on record to show that applicants undertook any activity which amounts to manufacture after the clearance from Customs – RSP is affixed before clearance from Customs area as mandated in terms of DGFT notification for discharge of CVD – Strong case in favour – Pre-deposit of 58.34 Crores duty waived and stay granted: CESTAT [para 7]

Also see analysis of the Order

2012-TIOL-1116-CESTAT-MAD

M/s ICMC Corporation Ltd Vs CCE, Chennai (Dated : March 15, 2012)

Central Excise – CENVAT Credit – suo moto taking of CENVAT credit – Appellants in earlier round of litigation before the CESTAT had reversed the credit and later taken suo moto credit on the ground that they are entitled for full credit under Rule 6(5) of the CENVAT Credit Rules, 2004 and that the Tribunal had not given any findings on their plea for allowing credit – The appellants are not entitled to take suo moto recredit - The right course of action for the appellants is to seek redressal in the appropriate higher judicial forum, if they are aggrieved by the earlier order of the Tribunal, which according to them has not granted them specific relief which they had sought in their grounds of appeal. 2012-TIOL-1115-CESTAT-MAD

M/s Ellen Industries Vs CCE, Coimbatore (Dated : March 26, 2012)

Central Excise – Stay/Dispensation of pre-deposit - CENVAT Credit – Denial of CENVAT Credit to the buyer of the goods due to fraud committed by the supplier of the goods – Prima facie there is no reason why the Central Excise Department should compensate the buyer because they had entered into transactions which someone who has duped them by giving them such invoices on which credit cannot be taken by them – Pre-deposit ordered.

2012-TIOL-1114-CESTAT-MAD

Castrol India Ltd Vs CCE, Chennai (Dated : March 19, 2012)

Central Excise – Shortages of inputs, finished goods and packing materials – Demand of duty - The errors are on account of errors in accounting rather than due to clandestine removal because of the fact that discrepancies have been noticed involving both excesses and shortages - The admission of the authorized signatory on the day of stock taking is understood to mean that there was a difference between accounted stock and physical stock but this cannot be proof enough to conclude that the accounted stock was correct – Benefit of doubt goes in favour of the assessee.

2012-TIOL-1108-CESTAT-DEL

M/s Afcons Infrastructure Ltd Vs CCE, Delhi-I (Dated : July 2, 2012)

Construction of elevated viaducts for Delhi Metro - Launching trusses fabricated at site with the help of which pre-fabricated segments are placed between the piers – classifiable under SH 73084000 and not under SH 8425 – matter remanded to decide eligibility to exemption under notfn. 03/2005-CE: CESTAT [paras 6.2 & 7]

Also see analysis of the Order

2012-TIOL-1107-CESTAT-MAD

M/s Bakelite Hylam Ltd Vs CCE, Hyderabad (Dated : January 23, 2012)

Central Excise - CENVAT Credit - CENVAT credit is admissible on Teflon Coated Glass Fabric Belt used for manufacture of Heritage Flakes - Treated clay in the form of paste is spread on the Teflon coated belt, which is passed through oven and after processing in the oven, 'Heritage Flakes' is manufactured and released from the belt - Impugned item cannot be treated as excluded from the definition of input under Rule 57A of the Central Excise Rules, 1944 - Appeals allowed by majority order.

2012-TIOL-1106-CESTAT-MAD

EID Parry (India) Ltd Vs CCE, LTU, Chennai (Dated : March 19, 2012)

Central Excise – Stay/Dispensation of pre-deposit - 100% EOU – Non-payment of duty on goods manufactured in cleared in DTA – Contention that the goods were manufactured by the job-workers and hence the liability is only the job-workers – No prima facie case has been made out for waiver of pre-deposit as the appellant had not sought permission nor informed the department.

2012-TIOL-1105-CESTAT-MAD

M/s GE India Pvt Ltd Vs CCE, Pondicherry (Dated : May 8, 2012)

Central Excise – Valuation – Whether Air Circuit Breakers and Spares to Air Circuit Breakers are covered under Section 4A of the Central Excise Act, 1944 – Rule 2A of the Standards of Weights and Measures (Packaged Commodity) Rule, 1977 and exemption to goods supplied to industrial consumers from affixing the MRP – Since the matter was remanded by the Commissioner (Appeals) for re-quantification of the duty amount, appellants are at liberty to raise all the legal pleas before the Adjudicating Authority – Issue of penalty is also kept open.

2012-TIOL-1099-CESTAT-MUM

Mahindra Hinoday Inds Ltd Vs CCE, Pune-I (Dated : April 20, 2012)

Inasmuch as Tribunal has already passed an order remanding the matter in respect of very same order-in-appeal filed by the appellant, it could not have entertained the appeal filed by the Revenue - 2 nd order passed by Tribunal cannot be sustained in law, hence recalled – Miscellaneous application allowed: CESTAT [para 1]

Also see analysis of the Order

2012-TIOL-1098-CESTAT-DEL

M/s Ruchi Soya Inds Ltd Vs CCE, Indore (Dated : June 28, 2012)

Central Excise - Excisability - Soya Sludge - Stay / Dispensation of pre-deposit - Prima facie view is that since soya sludge is a by-product obtained in the course of refining of soya bean oil, the same is covered by Heading No.1522 of the Central Excise Tariff and since there is no dispute about the fact that it is regularly sold by the appellant, not only an intention can be attributed to the manufacturer to manufacture and sell this product, the same would also have to be treated as marketable and, therefore, excisable. As it appears that extended period cannot be invoked, 20% of the demand to be pre-deposited. (Para 6 & 7)

2012-TIOL-1097-CESTAT-MUM

Suvidha Book Manufacturing Co Vs CCE, Thane-I (Dated : January 30, 2012)

Applicant receiving inputs under rule 19(2) of CER, 2002 without payment of duty on the condition that the same are used in manufacture of goods which are to be exported – procedure requiring drawing of sample not followed – there is no dispute that the inputs were used in the manufacture of export goods – since proof of export has been furnished by applicant, pre-deposit of dues waived and stay granted: CESTAT [paras 3 & 6]

2012-TIOL-1096-CESTAT-AHM

M/s Sterlite Industries (I) Ltd Vs CCE, Vapi (Dated : April 3, 2012)

Central Excise – Refund of CENVAT Credit under Rule 5 of the CENVAT Credit Rules, 2004 – Liability to pay interest for delayed sanction of refund claim – Appellant is entitled for interest under Section 11 BB after expiry of three months from the date of fiing the claim – It is settled law that the provisions of Section 11B and 11BB are applicable for refund of unutilized credit under Rule 5 of the CENVAT Credit Rules, 2004.

2012-TIOL-1085-CESTAT-BANG

M/s Orient Cement Vs CC & CE, Hyderabad (Dated : March 6, 2012)

Central Excise – Stay / Pre-deposit of Duty - CENVAT Credit - Denial of credit on structural items viz., MS plates, angles, channels, joists, rounds and cement, etc. - Though broad statements and claims have been made by the appellant in the memo of appeal, there is no categorical averment as to how much credit is being claimed item-wise - There is not even any broad categorization - the claim raised before the adjudicating authority also suffered from vagueness and ambiguity – Ordered for pre- deposit of Rs.1.5 Crore (Para 2 & 3).

2012-TIOL-1084-CESTAT-BANG

M/s Karnataka Cement Pipe Factory Vs CCE, Belgaum (Dated : May 10, 2012)

Central Excise – Duty Demand – Duty demand on Clandestine Clearances as well as on price escalation - The adjudicating authority has scrupulously followed the terms of Remand Order of Tribunal dated 20.10.2005 – Price escalation charges received by the appellants were correctly worked out on the basis of the percentage in terms of value of pipes involved in the composite contract value and also treating the escalation charges as cum duty - It appears that the remand order was properly implemented by the adjudicating authority – No merits in the appeal (Para 4 & 5).

2012-TIOL-1082-CESTAT-KOL

Greenply Industries Ltd Vs CCE, Kolkata-II (Dated : December 5, 2011)

Central Excise – Allegation of wrong availment of CENVAT Credit of CVD paid on timber/logs before receipt of inputs in the factory and duty demand raised on final products treating as non-duty paid in terms of Rules 8(1), 8(3) and 8(3A) of CER 2002 – Appellant imported timber/wooden logs and stored in a log yard away from factory – Imported log/timbers immersed in water for a period ranging from 12 days to 2 months and thereafter cut into required sizes of 6 to 8 ft length so as to make them suitable for peeling in machines installed in factory for further use in manufacture of final products – Definition of ‘factory' in s. 2(e) of CEA 1944 ought to be examined in the context and on the interpretation of the definition and also on the veracity of the claim of appellant the entire quantity of inputs on which CENVAT credit was availed were first received in their log yard and later transferred to registered premises to be used in or in relation to manufacture of finished goods – In the facts and circumstances of present case, log yard not being registered as factory would be a procedural aberration and would not result into denial of CENVAT Credit on inputs duly received by appellant later into registered factory premises – No substance in the argument of appellant that log yard be considered as place of job work – Claim to consider log yard as storage place of inputs devoid of merit in as much as inputs received in the log yard are not simply for the purpose of storage but subjected to process of curing and cutting for further use in manufacture of finished goods in registered factory premises – Matter remanded to original authority for de novo consideration of issue afresh – Disallowance of CENVAT Credit on inputs cleared as such upheld

2012-TIOL-1081-CESTAT-MAD

M/s Indian Organic Chemicals Ltd Vs CCE, Chennai (Dated : April 9, 2012)

Central Excise – CENVAT Credit on naphtha used for manufacture of steam which in turn was used for manufacture of electricity supplied to another unit which is a 100% EOU – Plea that the appellant is covered under the exceptions provided to Rule 57C (1) relating to supplies made to 100% EOUs – Matter remanded to the original authority as such a plea was not raised earlier.

2012-TIOL-1079-CESTAT-DEL

CCE, J&K, Jammu Vs M/s Continental Transformers (Dated : July 3, 2012)

Central Excise - CENVAT - HV/LV coils captively consumed for repairs of transformer - Refund of excise duty paid on HV/LV Coils - Fabrication of HV/LV coils does not bring about marketable goods, as such, those coils are not subject to levy of excise duty. When excise duty is not leviable on the goods, the assessee cannot take the benefit of Notification No.56/02-CE on the plea that he has cleared non-excisable goods on payment of excise duty. Also, the excise duty paid by the assessee gets passed on to the consumer and the assessee does not suffer financial loss as he gets excise duty back from the buyer. Refund not eligible. (Para 5 & 7)

2012-TIOL-1073-CESTAT-DEL

M/s Milap Zarda Udyog Vs CCE, Jaipur-I (Dated : July 10, 2012)

Central Excise – Valuation – Chewing tobacco packed in pouches of less than 10 gms and further packed in larger packs – Demand of duty based on RSP assessment is not sustainable – Issue no longer res integra in view of the Supreme Court decisions.

2012-TIOL-1072-CESTAT-MAD

M/s Proteck Circuits & Systems Ltd Vs CCE, Chennai (Dated : February 16, 2012)

Central Excise - Classification - Metal Halide Light Exposing System for Offset Printing Plate Making - The goods are used for making printing plates by a process which transfers a photograph/ artwork and/or text for printing on to a film which is subsequently transferred to a printing plate - Classification under heading 8442 is more appropriate than heading 8443 or 9009.

Small Scale exemption - Brand name - It is now settled that use of a brand name of another even though the other person may be a trader or is a manufacturer of another product or the brand name has been partly used, the user of such brand name of another stands disentitled to small scale exemption.

Extended period - The appellants had suppressed the use of the brand name of another person on the impugned goods - In case the appellants were under a bonafide belief that they were entitled to small scale exemption for the impugned goods, it cannot be explained as to why the information relating to affixing the brand name of another person was suppressed and kept away from the knowledge of the department - Extended period upheld.

2012-TIOL-1068-CESTAT-MAD

Burn Standard Co Ltd Vs CCE, Salem (Dated : March 20, 2012)

Central Excise – Manufacture of dutiable and exempted goods – Demand of 10%-5% under Rule 6 of the CENVAT Credit Rules, 2004 – Appellants contends that proportionate credit had been reversed – Demand of 10%-5% set aside – In view of the amendments made vide Finance Act, 2010, if the computation of proportionate credit is not acceptable, revenue should communicate its method to the assessee and provide an opportunity of hearing – Matter remanded. 2012-TIOL-1067-CESTAT-MAD

Burn Standard Co Ltd Vs CCE, Salem (Dated : March 20, 2012)

Central Excise – CENVAT Credit – Manufacture of dutiable and exempted goods – Demand of 10% amount – Matter remanded in the light of retrospective amendment to the CENVAT Credit Rules vide Finance Act, 2010 to examine the application filed by the appellant under Section 73 of the Finance Act, 2010.

2012-TIOL-1066-CESTAT-MAD

Ashoka Distributors Vs CCE, Coimbatore (Dated : April 9, 2012)

Central Excise - Valuation - Appellants accepted the value suggested by the department and paid the differential duty - Denial of deemed credit by applying the denial clause in Notification No 11/96 CE meant for cases of fraud etc is not justified - Penalty under Rule 57I is also set aside.

2012-TIOL-1064-CESTAT-MUM

M/s Rochem Separation Systems (I) Pvt Ltd Vs CCE, Thane-II (Dated : April 12, 2012)

Rule 6 of CCR - Common inputs/input services used in manufacture of dutiable and exempted final products – Reversal of attributable credit – Commissioner rejecting the application made in terms of s. 73 of the FA, 2010 and confirming demand of Rs.2.09 Crores along with penalty and interest – in case the amount paid is found to be less than the amount payable, CCE should call upon the applicant to pay the differential amount along with interest – Rejection of application is not sustainable – Matter remanded: CESTAT [paras 11, 12, 13 & 14]

Also see analysis of the Order

2012-TIOL-1063-CESTAT-MAD

Ooms Polymer Modified Bitumen (P) Ltd Vs CCE, Chennai (Dated : March 20, 2012)

Central Excise – Manufacture – Crumbled Rubber Modified Bitumen cannot be treated as Bituminous Mixtures and the process does not amount to manufacture – Demand set aside. 2012-TIOL-1062-CESTAT-BANG

CCE, Mangalore Vs M/s Mangalore Refinery & Petrochemicals Ltd (Dated : May 24, 2011)

Central Excise – Liability to pay amount of 8% on furnace oil cleared without payment of duty – Appellant reversed proportionate credit – Appellate Commissioner already directed that appellant required to reverse credit with interest – Rule 6 of CCR 2004 amended retrospectively by virtue of s. 71 of Finance Act, 2010 which provides for reversal of proportionate credit – No infirmity in order of Appellate Commissioner in view of retrospective amendment – No merits in revenue appeal

2012-TIOL-1061-CESTAT-AHM

M/s IMP Powers Ltd Vs CCE, Vapi (Dated : March 22, 2012)

Central Excise - Clearance of finished goods to SEZ developers resulting in demand of 10% amount under Rule 6 of CCR 2004 - Once a LUT is executed, appellant need not pay duty and it is also undisputed that goods were cleared under ARE-1 governed by relevant provisions of SEZ Act and the Rules made there under - Issue no longer res integra - Impugned order set aside

2012-TIOL-1057-CESTAT-MUM

CCE, Nashik Vs Kirloskar Oil Engines Ltd (Dated : May 10, 2012)

CE – Valuation – s.4 of CEA, 1944 - Assessee entered into two different contracts, one for supply of DG sets and another for installation/erection and commissioning at the customer's site – charges for installation/erection/commissioning cannot be considered for inclusion in assessable value of DG sets – Revenue appeal dismissed: CESTAT [para 4]

Also see analysis of the Order

2012-TIOL-1056-CESTAT-DEL

M/s Power Chem Plast Ltd Vs CCE, Chandigarh (Dated : June 15, 2012)

Cenvat credit taken on input received short – inputs cleared without reversing SAD – upon pointing out by audit both the amounts reversed along with interest – SCN issued for appropriation and imposition of penalty u/r 15 of CCR – amounts appropriated and equivalent penalty imposed u/r 15 – whether penalty imposable at all on second issue – held - penalty of Rs.5000/- sufficient for meeting ends of justice – Appeal allowed partially with consequential benefits, if any: CESTAT [paras 3, 4 & 5] 2012-TIOL-1055-CESTAT-DEL

M/s Blue Precision Ltd Vs CCE, Delhi-IV, Faridabad (Dated : May 2, 2012)

Central Excise - Rectification of Mistake / ROM - Question of manufacture and admissibility of input credit / Alternate plea for allowing rebate on goods exported - Failure to consider some point of law or point of fact made on record, which is relevant to the issue and has bearing on the final decision, would constitute an error apparent from records. It is held that the process carried out by the assessee does not amount to manufacture, and hence Cenvat credit is not admissible. The alternate plea that rebate under Rule 18 is admissible is subject to the conditions prescribed in the notification and also subject to the limitation period of one year from the date of export. If the assessee have not claimed this rebate, the same is time barred. Cenvat credit cannot be allowed, when the same is inadmissible, in lieu of such time barred rebate claim. No error apparent on record. (Para 6.2 & 8)

2012-TIOL-1054-CESTAT-BANG

CCE, Guntur Vs M/s Nelcast Ltd (Dated : May 4, 2012)

Central Excise – CENVAT Credit – Appellants have two units, Unit-I & Unit-II and have separate registrations with department – Appellants (Unit-I) taken credit of service tax paid on ‘Consulting Engineer's Service' for setting-up of Unit-II - The nexus between the input service and the setting up of Unit-II is undeniable and, if that be so, Unit-II which was an independent, registered manufacturer in its own right, could claim the CENVAT credit - Unit-I should not have claimed it otherwise than on the strength of an invoice issued by the company as a registered input service distributor - The lower authorities, erred in holding that CENVAT credit in question was rightly availed by Unit-I (Para 3).

Central Excise – Limitation – SCN issued invoking extended period of limitation on the ground of alleged suppression – The plea of limitation was not considered by the original authority and decided the issue on merits – The appellate authority also not considered the aspect of limitation – Set aside the order and directed to examine the limitation issue by the original authority (Para 4).

2012-TIOL-1050-CESTAT-KOL

M/s Orissa Construction Corpn Ltd Vs CCE, CC& ST - BBSR-I (Dated : June 22, 2012)

Appellant having produced the TR-6 challan evidencing payment of pre-deposit of Rs.50,000/- made in the year 1989 only on 11th June, 2010 and refund having been sanctioned by the department within 3 months on 28.06.2010, no cause arises for payment of interest – Appeal dismissed: CESTAT [para 4]

Also see analysis of the Order 2012-TIOL-1045-CESTAT-BANG

CCE, Hyderabad Vs M/s Sri Venkateswara (Dated : March 29, 2012)

Central Excise – Adjudication of the case by the Investigating Officer - It is rather unfortunate that the investigating officer himself has chosen to be the adjudicating authority which act is in gross violation of principles of natural justice - This has been done inspite of specific objection by the counsel appearing for the parties - Set aside the order of Commissioner (Appeals) - The adjudication should be done by an officer who was not part of investigating team (Para 5 & 6).

2012-TIOL-1044-CESTAT-MUM

Microworld Software Services Pvt Ltd Vs CCE, Mumbai-I (Dated : April 10, 2012)

Software sold over Internet – whether chargeable to Central Excise duty under Tariff heading 85.24 as “other media” and entitled to exemption in terms of Notfn. 6/2006- CE - appellant paying ST from FY 2008-09 – Matter arguable – since Commr(A) has dismissed the appeal for non-compliance of pre-deposit order without going into merits, matter remanded: CESTAT [paras 7, 8 & 9]

Also see analysis of the Order

2012-TIOL-1039-CESTAT-MUM

CCE, Pune-I Vs M/s Eisen Pharmaceuticals Respondents (Dated : March 29, 2012)

Valuation - Respondents had filed price declaration as per Notification No. 27/92 (NT) and on the basis of the price declared by M/s Dukes, the duty was accordingly paid - order does not bring into account any abetting on the part of the appellant so as to involve him in the manipulation of the alleged price – allegation of suppression and misstatement not maintainable – in appeal, Revenue has not challenged this finding of lower appellate authority – appeal does not have merits hence dismissed: CESTAT [paras 4 & 5]

2012-TIOL-1038-CESTAT-BANG

M/s Tilrode Chem Pvt Ltd & Anr Vs CCE, Bangalore (Dated : May 9, 2012)

Central Excise – Penalty - Revision of penalty imposed under Section 11AC in terms the directions of the High Court – Followed the decision of Dharamendra Textile Processors - (2008-TIOL-192-SC-CX-LB) - any penalty lower in measure than the amount of duty confirmed under Section 11AC is not sustainable - the Commissioner, found the existence of the necessary conditions required for invoking Section 11AC in O-I-O dated 30/12/2003 and charged penalty equal to duty - In Final Oder dated 30/8/2006, the Tribunal did not record any finding against the view taken by the Commissioner regarding imposability of mandatory penalty under Section 11AC - The final order dated 30/8/2006 was not challenged by the assessee - penalty equal to duty is warranted (Para 9).

Central Excise – Penalty - revision of penalty under Rule 209A - This question also has been debated to some extent – There is no merit in the challenge against the reduction of penalty to Rs 50,000/- on the Managing Director of the company (Para 7).

2012-TIOL-1037-CESTAT-BANG

M/s Contour Apparels Vs CC, Bangalore (Dated : May 11, 2012)

Central Excise - Refund of unutilised CENVAT Credit on account of exports under Rule 5 of CENAVT Credit Rules, 2004 - Limitation - Applicability of Section 11B of Central Excise Act, 1944 – Followed the decision of GTN Engineering (I) Ltd. (2011-TIOL-149- CESTAT-MAD) - Limitation under Section 11 B is not applicable - Matter remanded to ascertain the correctness of the amount (Para 5.1 & 5.2)

2012-TIOL-1032-CESTAT-MUM

M/s Hindustan Petroleum Corporation Ltd Vs CCE, Mumbai-II (Dated : June 19, 2012)

Naphtha manufactured and captively consumed in the generation of electricity used in manufacture of exempted goods and also used for allied purposes viz. lighting of refinery road, canteen and administrative building etc. – benefit of notfn. 67/95-CE not available for allied purposes – Pre-deposit ordered of Rs.17 lakhs - since in respect of exempted goods reversals made in terms of rule 6 of CCR, 2004 as retrospectively amended, benefit available: CESTAT [paras 8, 9, 10]

Also see analysis of the Order

2012-TIOL-1031-CESTAT-MUM

CCE, Raigad Vs Oil & Natural Gas Corporation Ltd (Dated : January 2, 2012)

Central Excise – MODVAT / CENVAT Credit – Certificates issued under erstwhile Rule 57E of the Central Excise Rules, 1944 for availing Credit - the Tribunal's order cannot be so construed as to mean that the differential amount of duty was held to be recoverable on account of short-levy or non-levy by "reason of fraud, collusion or wilful misstatement or suppression of facts or contravention of any provisions of law with intent to evade payment of duty" - In other words, sub-rule (3) of Rule 57E cannot be invoked on the strength of order dated 28.5.2004 passed by the Tribunal – Entitled to credit (Para 29).

Central Excise – MODVAT / CENVAT Credit - When Rule 57E was repealed, any provision recognizing certificate of Superintendent as a valid document for availment of MODVAT/CENVAT credit was not incorporated in the new rules -. In the absence of a transitional provision enabling a manufacturer of final product, who obtained Rule 57E certificate prior to 1.4.2000, to use the certificate for taking MODVAT credit on his inputs after the said date, the principle of restitution embodied in Section 144 of the Code of Civil Procedure can be invoked to dispense justice in the present case - An apparent omission of the rule-making authority to make such transitional provisions cannot be allowed to work irreparable injustice to the party - The principle of restitution is a tool which could be used to eliminate such injustice (Para 35)

2012-TIOL-1030-CESTAT-DEL

M/s Samtel Colour Ltd Vs CCE, Jaipur-I (Dated : June 29, 2012)

Appellant a 100% EOU - finished goods lying in stock at the time of de-bonding were finally cleared from the factory in February 2009 at the price higher than the price on which the duty had been paid prior to de-bonding – differential duty confirmed along with penalty and interest - There is nothing on record to indicate that the assessment of duty on the finished goods in stock was provisional basis as the department had given no dues certificate on 16.09.2008 - Other than the sale price of the goods in February, 2009, there is no other evidence that the assessable value was on lower side – Prima facie department cannot seek to change the assessable value on the basis of price after five months from the date of debonding – Pre-deposit waived and Stay granted: CESTAT [para 5]

2012-TIOL-1026-CESTAT-DEL

M/s Lafarge India Pvt Ltd Vs CCE, Raipur (Dated : July 10, 2012)

Service Tax on outward transportation of clinker cleared from Sonadih plant at specific rate of duty to depot at Nipania railway siding from where it is transported by rail to appellants cement factory at Jojobera - Definition of "place of removal" in s. 4(3)(c) of CEA, 1944 is relevant only when goods are chargeable at ad valorem rate - correctness of Board Circular 137/3/06-CX dated 2/2/06 allowing such credit is doubtful - Prima facie credit not allowable – Pre-deposit ordered of the disputed Cenvat Credit: CESTAT [paras 6, 7 & 8]

Also see analysis of the Order

2012-TIOL-1025-CESTAT-DEL

M/s Lafarge India Pvt Ltd Vs CCE, Raipur (Dated : July 10, 2012)

Service Tax on outward transportation of clinker cleared from Sonadih plant at specific rate of duty to depot at Nipania railway siding from where it is transported by rail to appellants cement factory at Jojobera - Definition of "place of removal" in s. 4(3)(c) of CEA, 1944 is relevant only when goods are chargeable at ad valorem rate - correctness of Board Circular 137/3/06-CX dated 2/2/06 allowing such credit is doubtful - Prima facie credit not allowable – Pre-deposit ordered of the disputed Cenvat Credit: CESTAT [paras 6, 7 & 8]

Also see analysis of the Order

2012-TIOL-1024-CESTAT-DEL

CCE, Lucknow Vs M/s Premier Alloys Ltd (Dated : June 26, 2012)

Law is well settled that the first appellate authority has co-extensive and co-terminus power like adjudicating authority/original authority - Exercising such power, it was duty of that authority to protect interest of justice - Revenue filed only one appeal against three respondents – rejection of appeal without granting an opportunity to correct the technical lapse not proper – Revenue ought not have been remediless on technical ground – Matter remanded: CESTAT [paras 4 & 5]

Commissioner (A) cannot overlook evidence which was recorded during investigation u/s 14 of the CEA, 1944 - he is directed to call for entire adjudication record and re- evaluate as well as re-appraise the evidence gathered in the course of investigation before appreciating either way in respect of those evidence – Matter remanded: CESTAT [para 7]

2012-TIOL-1023-CESTAT-MAD

CCE, Pondicherry Vs Ravishankar Industries Pvt Ltd (Dated : March 23, 2012)

Central Excise – Valuation – Expenses incurred by the sole selling agent towards advertisement need not be included in the assessable value - decision in Bombay Tyre International Ltd. cannot be interpreted to mean that all expenditure incurred by a sole selling agent will form part of the value of goods sold by a manufacturer.

2012-TIOL-1015-CESTAT-DEL

M/s Alliance Alloys Pvt Ltd Vs CCE, Delhi-IV (Dated : May 18, 2012)

Prima facie technologically ADC-12/HD2G/HSIH/LM-6f/LM-9/ADC-6 grade of Aluminium alloys could be manufactured directly from Aluminium scrap of the appropriate ISRI code without use of high value of Aluminium products like CR sheets/coils, rods, etc. – fraudulent availment of Cenvat credit by forging and fabricating records – not a fit case for grant of waiver of adjudged dues – Stay application dismissed and deposit ordered of entire duty demand of Rs.4.5 Crores with interest and penalty of more than Rs.2.3 crores: CESTAT [paras 9 to 15]

Also see analysis of the Order 2012-TIOL-1014-CESTAT-MAD

M/s The Salem Dist Co-Op Milk Producers Union Ltd Vs CCE, Salem (Dated : March 23, 2012)

Central Excise – Demand of duty on skimmed milk powder manufactured and used for generation of milk during lean season – Demand of duty is not sustainable as the tariff entry clearly used the expression “intended for sale”- Since the appellant did not intend to sell the milk powder, but only stored it for generation of milk, demand of duty is not sustainable.

2012-TIOL-1013-CESTAT-BANG

M/s Soft Foam Industries Pvt Ltd Vs CCE, Hyderabad (Dated : January 24, 2012)

Central Excise – Classification - Classification of ‘Taped Sheets for Mattresses' - After considering the tariff description and explanation in the HSN, it is quite clear that the product manufactured by the appellant finds its use as a mattress pad and further is specifically covered by the description of the product in the HSN - since the heading 5810.00 more appropriate for the product, the claim of the assessee that the product is to be classified under 5810 has to be sustained (Para 4.4.).

Central Excise - Valuation - Followed the decision of Maruti Udyog (2002-TIOL-34-SC- CX) - when duty has not been collected, the price has to be treated as cum-duty price is appropriate (Para 4.5 ).

2012-TIOL-1009-CESTAT-MUM

M/s Savita Oil Technologies Ltd Vs CCE, Belapur (Dated : February 7, 2012)

Applicant receiving Inputs (chemicals) in various tankers and there are handling losses at the time of loading and unloading of chemicals – shortages are almost up to 2% - demand confirmed on the ground that Cenvat credit is not admissible on the quantity of shortage – applicant submitting that tolerance limit is 0.4% and if the shortage is more they are raising debit notes and reversing the credit to that extent - there is no evidence on record that the inputs were diverted – for earlier period demands were set aside by Tribunal – Pre-deposit waived and stay granted: CESTAT [paras 3 & 5]

2012-TIOL-1005-CESTAT-DEL

M/s Sarla Fabrics Pvt Ltd Vs CCE, Ghaziabad (Dated : March 14, 2012) Central Excise - Valuation - Goods manufactured on job-work basis - The assessable value has to be the cost of raw materials in the hands of job worker plus job charges plus job worker's profit. The amount and designing charges would be part of the job charges, However, there is no scope for adding losses suffered by company or notional interest on interest free loans to this cost. (Para 8)

Central Excise - Valuation - Goods cleared to related persons - The assessable value for clearance of goods to group company (related persons) for captive consumption would be 115%/110% of the cost of production in terms of the provisions of Rule 8 of Valuation Rules, 2000. Matter remanded to re-determine the value under Section 14A by appointing a Cost Engineer. (Para 9)

2012-TIOL-1003-CESTAT-BANG

CCE, Mysore Vs M/s ATC Beverages Pvt Ltd (Dated : April 13, 2012)

Central Excise – CENVAT Crediton Capital Goods - CENVAT credit on the capital goods cannot be denied to the respondent on the ground that the capital goods were not brought into their factory before they were sent to the job worker – Appeal rejected (Para 2).

2012-TIOL-999-CESTAT-DEL

CCE & Cus, Raipur Vs Manish Kumar Agrawal (Dated : June 11, 2012)

Clandestine removal – assessee paying duty along with interest and 25% penalty within a period of 30 days of issue of show-cause notice – Commissioner holding that since assessee has paid the entire dues, there is no justification for imposing separate penalty on Director in view of s. 11A of CEA, 1944 and Board Circular 831/08/2006- CX – facility given to industry to reduce litigation – inspite of this Revenue filing appeal and contributing to increase in litigation – appeal frivolous, hence rejected: CESTAT [para 3, 4 & 5]

2012-TIOL-998-CESTAT-DEL

Magnum Steel Ltd Vs CCE, Indore (Dated : July 2, 2012)

Law is well settled that merger causes diminishing of the status of the amalgamating companies after amalgamation – no right existing before amalgamation can be claimed – unutilized Cenvat credit lying before amalgamation cannot be carried forward – appeal dismissed: CESTAT [para 2]

2012-TIOL-996-CESTAT-BANG

Concast Ferro Inc Vs CCE, Visakhapatnam (Dated : February 21, 2012) Central Excise – Stay / Pre deposit of Duty – Captive consumption of Cement for fixing capital goods within the factory – Followed the decision of Hindustan Zinc Limited – Cement used in the factory for civil works cannot be said to have been used directly or indirectly in relation to the manufacture of pig iron - there is no evidence of any financial hardship – Ordered for pre-deposit of Rs.3,00,000/- (Para 1).

2012-TIOL-994-CESTAT-BANG

Banjara Cements Ltd Vs CCE, Nagpur (Dated : March 7, 2012)

Central Excise – Stay / Pre deposit of Duty – Clandestine Manufacture and clearances – Duty demand made based on detection of shortage of HDPE/PP Bags and 36 MTs Cement and un accounted goods of 39.42 MTs Gypsum and 20,450 Nos. of PP bags, in the factory, by the officers - It was claimed that the quantum of gypsum said to have not been accounted has been used for manufacture of cement which was accounted and due to inadvertence, certain bills relating to gypsum were not accounted - In the absence of any other evidence indicating suppression of production and clandestine removal, the appellant has made out a case for waiver of dues (Para 5).

2012-TIOL-990-CESTAT-AHM

M/s Dresser Rand (India) Pvt Ltd Vs CCE, Ahmedabad (Dated : June 13, 2012)

CE – Valuation - Non-declaration of collection of Digital and Pulsation Study (DPS) charges from customers in RT-12 returns cannot be held against appellant as they could have entertained a bonafide belief that the same is not includible in AV as it is done only in respect of few customers - during the relevant period, there were the decisions of the Tribunal which indicated that any study or additional tests conducted by the manufacturer at the option of the assessee, value/cost thereof need not form a part of the assessable value, as the same being optional - appellant has made a case for setting aside the demand on the point of limitation – Appeal allowed: CESTAT [paras 8 & 9]

Also see analysis of the Order

2012-TIOL-989-CESTAT-DEL

M/s Hindustan Zinc Ltd Vs CCE, Jaipur (Dated : April 12, 2012)

Central Excise - Provisional Assessment - Excess payment and Short payment - Liability to Interest - Stay / Dispensation of pre-deposit - During the period of provisional assessment on certain occasions higher amount of excise duty was paid and on other occasions short payment of excise duty was made. On collation of the payments made during the period of provisional assessment it is noticed that excise duty is paid in excess. Revenue has demanded interest on excise duty short paid on certain occasions during the period of provisional assessment. Following the decision of the Hon'ble High Court in 2012-TIOL-10-HC-KAR-CX case made out for grant of stay . (Para 3) 2012-TIOL-988-CESTAT-DEL

M/s Bajaj Hindustan Ltd Vs CCE, Meerut (Dated : May 25, 2012)

Central Excise – Stay / Application for waiver of Pre-deposit - CENVAT Credit – Eligibility of CENVAT Credit of duty paid on H R Plates, sheets, channels, angles, joists, etc. used in the factory for fabrication/erection of Storage Tanks – when the definition of capital goods as given in Rule 2 (a) of the Cenvat Credit Rules, 2004 covered certain "goods" specified in it, it is clear that the goods specified in it would be movable property and not the immovable property and, therefore, the "tanks" mentioned in the definition of capital goods in Rule 2 (a) would be the movable storage tank and not the storage tank fixed to the earth - the structures fixed to the earth are capital asset and not the capital goods - this is not a case for total waiver from the requirement of pre-deposit – Ordered for Pre-deposit of Rs.30 Lakhs (Paras 6 - 9).

2012-TIOL-987-CESTAT-DEL

M/s Acme Global Vs CCE, Lucknow (Dated : June 21, 2012)

Since the duty demand confirmed against the appellant is only Rs. 25,238/-, there is no justification for imposition of penalty of Rs. 80,260/- u/s 11AC of the CEA, 1944 by including the duty of Rs. 55,022 involved on the goods found unaccounted in the factory and which have been placed under seizure since duty has not been demanded thereon since not cleared from factory: CESTAT [para 5]

Confiscation of packing machines and raw materials is not envisaged in rule 25(1) of the CER, 2002 – order does not discuss under which provisions the same have been confiscated hence set aside. [para 7]

2012-TIOL-985-CESTAT-DEL

M/s Jindal Pipes Ltd Vs CCE, Meerut-II (Dated : April 4, 2012)

Valuation - abatement of freight charges from manufacturing unit to the depot - adjudicating authority holding that such a deduction permissible w.e.f 01.07.2000 but disallowing the claim on the ground that the appellants have not been able to substantiate their claim by producing relevant invoices and documents - appellate authority going on a tangent and holding that abatement is not permissible in law in the first place - legal issue whether or not the appellants were entitled to abatement was not an issue raised in the appeal and the respondent have not filed cross objections raising the issue - finding of the Commissioner(Appeals) which was beyond the scope of appeal, cannot be sustained but the fact remains that if the law does not permit abatement, the assessee cannot be allowed to take advantage of any interpretation in the order of the adjudicating authority - Matter remanded: CESTAT [para 6] 2012-TIOL-979-CESTAT-MUM

M/s Krystal Chemical Industries Vs CCE, Nagpur (Dated : April 12, 2012)

Mutton masala packing machine presumed to be used for packing Pan Masala gutka – C.Ex. duty demand of Rs.13.67 Crores confirmed on assumption and presumption – prima facie strong case in favour - Pre-deposit waived and stay petition allowed: CESTAT [paras 5, 6 & 7]

Also see analysis of the Order

2012-TIOL-978-CESTAT-AHM

M/s Mangal Textile Mills (India) Pvt Ltd Vs CCE, Ahmedabad (Dated : June 25, 2012)

Central Excise - Independent Textile Processors - Capacity of Production - Fulfillment of conditions of Notification - One of the conditions of the notification is that original value of investment in the plant and machinery must not exceed Rs. 3 crores. By excluding the value of duty paid, it is seen that the original investment in plant and machinery is below Rs. 3 crores. However, having an open air stenter machine , will make the assessee ineligible for the benefit based on annual production capacity . (Para 4, 7.2, 8)

2012-TIOL-972-CESTAT-DEL

Lafarge India Pvt Ltd Vs CCE, Raipur (Dated : April 24, 2012)

Central Excise – Stay / Application for waiver of Pre-deposit - CENVAT Credit – Eligibility of CENVAT Credit of duty paid on M.S. angles, Channel, joists, sheets, plates, beams, CTD bars, cement etc., used for construction of silos for storage cement and supporting structures for various machinery of the cement plant - Since silos and supporting structures are not capital goods, the inputs used in their construction would not be covered by the definition of 'input' as given in Rule 2(k) of CENVAT Credit Rules, 2004 - Prima facie, the items in question are not eligible for CENVAT credit and the same has been correctly denied – Ordered for pre-deposit of entire CENVAT Credit amount along with interest (Para 6).

2012-TIOL-970-CESTAT-BANG

M/s Bactolac Formulations Pvt Ltd Vs CCE, Hyderabad (Dated : June 01, 2012)

Central Excise - Payment of duty - Default of payment of duty for February and March 2007 – Defaulted duty amounts with interest was paid on the 20th and 21st of February 2008 - Duty for the month of April 2007, though paid in due time, was not paid entirely from PLA. A major part of this duty was paid from PLA and the balance from CENVAT account - Main issue to be settled is whether the duty amount paid through debits in the CENVAT credit account for the month of April 2007, is recoverable from the assessee in view of Rule 8(3A) of the Central Excise Rules 2002 - Followed the decision of Solar Chemferts Pvt. Ltd ( 2011-TIOL-1968-CESTAT-MUM ) - The only issue in the present case is whether the assessee should be directed to pay an amount equal to the CENVAT credit utilized by them for payment of duty for the month of April 2007 - If they are made to pay so, without being granted refund of the utilized CENVAT credit, the same would amount to double payment of duty – Revenue Appeal dismissed (Para 3 & 5).

2012-TIOL-968-CESTAT-DEL

M/s Hero Honda Motors Ltd Vs CCE, Meerut -I (Dated : June 17, 2011)

Central Excise – Appellant engaged in manufacture of motorcycles availing excise duty exemption under area based exemption Notification No. 50/03-CE without payment of NCCD and Education Cesses – Claim of exemption benefit in terms of said Notification in relation to NCCD and education cess payable on such NCCD – When appellants claimed benefit of exemption in relation to NCCD without any entitlement and the fact was revealed consequent to investigation by department, it disclosed intention of assessee to evade duty – Once Government specifies the statute and further clarifies that the exemption is in relation to duties leviable under those statutes, under the guise of interpretation of such notification, the scope of exemption cannot be expanded so as to include duties leviable under some other statute – There is no scope for interpretation of Notification as it clearly stated that exemption was restricted to duties leviable under statutes under which the said Notification was issued – NCCD not covered by exemption notification – Demand of NCCD and Cesses on NCCD upheld – Levy of penalty justified – Since duty was not paid in time, interest liable to be paid

2012-TIOL-963-CESTAT-DEL

M/s DSCL Sugar Vs CCE, Lucknow (Dated : June 15, 2012)

CE- CENVAT Credit – Input services – ‘Up to the Place of removal' includes ‘place of removal' - Maruti Suzuki decision not applicable for input services:

The issue involved in these appeals is whether they were eligible to take Cenvat credit on different services viz.: -

(1) Rent of godown at Agra/ Farrukhabad

(2) Sugar handling charges at the said godowns.

(3) Security services availed at the said godowns.

(4) Insurance of sugar in transit. (5) Insurance of cash/money in transit.

(6) Insurance of cashier.

(7) Vehicles hire charges.

(8) Insurance of Vehicles.

(9) Installation charges of gay rope mask

Question whether the place where goods are stored after clearance from the factory on payment of duty can be considered as "place of removal" for the purpose of Rule 2(l) of Cenvat Credit Rules 2004 is no longer res integra because of the clarification issued by the CBEC in the matter and approved by the decision of the Tribunal in the case of LG Electronics and the decision of Punjab & Haryana High Court in the case of Ambuja Cements Vs. UOI - ( 2009-TIOL-110-HC-P&H-ST) . Therefore the godowns at Agra and Farrukhabad are to be considered as "place of removal" for the appellant notwithstanding the fact that sugar is an item subjected to specific rate of duty.

Expression storage up to the place of removal would include the storage at the place of removal itself as argued by the Counsel for the Appellant. The normal interpretation of the words "up to" something is to include the something as is seen from the example quoted by the counsel. The example was - whenever a notification is issued with the provision that it is valid up to a particular date it is always considered as valid for the date specified for expiry. Going by such interpretation services for storage at the place of removal should be allowed as input services.

Decision of the apex court in the case of Maruti Suzuki is with reference to inputs. It was with reference to inputs used for generation of electricity, part of which was sold to grids outside the factory. This decision of the Court cannot be applicable to input services and in fact there is nothing in the said decision which is repugnant to the interpretation given above. The standard of nexus to be judged between input and manufactured goods will be different from the standards for input services because inputs are tangibles and input services are intangible. The definitions adopted for inputs and input services at Rule 2(k) and Rule 2(l) of Cenvat Credit Rules 2004 reflect different standards. Rule 2(l) of Cenvat Credit Rules specifically includes many post manufacturing activities like service relating to sales, promotion etc. and therefore standard prescribed for inputs cannot be adopted for input services.

Also see analysis of the Order

2012-TIOL-962-CESTAT-MAD

Steel Authority Of India Ltd Vs CCE, Salem (Dated : March 19, 2012)

Central Excise – Valuation – Transportation charges and transit insurance charges are not includable in the assessable value in case of sale at factory gate.

2012-TIOL-956-CESTAT-BANG CCE, Hyderabad Vs M/s Innocorp Ltd (Dated : May 8, 2012)

Central Excise – Valuation – Job work - Rule 10 A of the Central Excise Valuation (Determination of Price of the Excisable Goods) Rules 2000 - The respondents are manufacturing goods under contract manufacturing agreement with Principal manufacturer (Tupperware) – Demand of duty in terms of Rule 10A of the Valuation Rules, 2000 on the allegation that the respondents were not an independent manufacturers but only a job worker of TUPPERWARE – Held that : According to the Job Worker definition, in terms of Rule 10 A, any person to enter within its ambit of the definition should satisfy three requirements viz. (i) he should manufacture or produce goods (ii) he should do it on behalf of a principal manufacturer and (iii) he should do it from any inputs or goods supplied by the principal manufacturer or by any other person authorized by him - In the present case, the respondents satisfied the first condition, which is not in dispute – The salient features of the contract entered into between the respondents and Tupperware would clearly indicate that the respondents were manufacturing the goods for TUPPERWARE and selling the goods to them for a price at arms length on principal-to-principal basis -. The second requirement was not satisfied in this case - The third requirement for the assessees to be job workers of TUPPERWARE has also not been satisfied in this case inasmuch as the goods were not manufactured from any inputs supplied by TUPPERWARE or by any other person authorized by them - It is not in dispute that the necessary raw materials and packing materials were procured by the assessees from suppliers named by TUPPERWARE - The cost of these materials were expressly recognized as expense of the assessees. That the suppliers were chosen by the assessees from a panel furnished by TUPPERWARE does not mean that the actual suppliers were authorized by TUPPERWARE to supply the materials to the assessees. In so far as the moulds are concerned, undisputedly, they were returned by the assessees to TUPPERWARE after use (without availing CENVAT credit) and the amortised value thereof was included in the assessable value of the finished goods - On these facts, it has to be held that the third condition also remains unfulfilled in this case - In the result, the respondents in these appeals were not manufacturing the subject goods as job workers ‘on behalf of” TUPPERWARE - Rule 10A was not applicable to the assessment of the subject goods (Para 7.1 to 7.8).

Also see analysis of the Order

2012-TIOL-955-CESTAT-MUM

Super Packs Vs CCE, Pune-III (Dated : May 9, 2012)

Packing material cleared to 100% EOU and refund claimed of the duty paid on inputs in terms of rule 5 of CCR, 2004 – lower authority granting refund but Commissioner(A) setting aside the order – as the decision in Tiger Steel Engineering has been stayed by the Bombay High Court, pre-deposit of dues waived and recovery stayed: CESTAT [para 6]

2012-TIOL-954-CESTAT-BANG

M/s The India Cements Ltd Vs CCE, Hyderabad (Dated : February 8, 2012)

Central Excise - CENVAT Credit – Dutiable and exempted final products – non- maintenance of separate accounts - Demand of amount terms of Rule 6 of CENVAT Credit Rules, 2004, for supplies made to SEZs by treating the supplied goods as ‘exempted goods' - Followed the decision of Sujana Metal Products Limited (2011- TIOL-1173-CESTAT-BANG) - Clearance to SEZ Developers from DTA treated as export - the application of provisions of Cenvat Credit Rules for recovery of amounts on goods supplied to SEZ units in terms of Rule 6 of CENVAT Credit Rules, 2004 does not arise (Para 3 & 4).

2012-TIOL-947-CESTAT-DEL

M/s Unishilp Electronics (P) Ltd Vs CCE, Noida (Dated : May 4, 2012)

Intention of the customer whose brand name is affixed on the goods is not relevant and so long as the goods manufactured for a customer bear the brand name of that customer, the SSI exemption would not be available, irrespective of whether the customer sells the goods as such or uses the same as inputs in the manufacture of other goods – clearance of transmitter-receiver in the name of ‘Maruti' of MUL at normal rate proper – no cause for treating the same as unbranded goods for computing aggregate value of Rs.1 Crore and demanding differential duty on other goods: CESTAT [paras 5, 6 & 7]

There is no dispute that the transmitter -receivers affixed with the brand name - 'Maruti' were not used by MUL as component or accessory of cars manufactured by them but were used as parts/accessory of the production machinery - there is also no dispute that the appellant have not followed the procedure prescribed under Central Excise (Removal of goods at concessional rate of duty for manufacture of excisable goods) Rules, 2001 so as to get the benefit of exemption and are not covered by the exception to the provisions of para 4 of the notification, as mentioned in clause (a) – duty properly paid at normal rate as applicable to branded goods...paras 4.3 & 6(a)

Also see analysis of the Order

2012-TIOL-946-CESTAT-AHM

M/s Unique Forging India P Ltd Vs CCE, Vadodara (Dated : May 16, 2012)

While there are provisions in the statute for preventing unjust-enrichment of taxpayers, the statute is very clear that if the excess amount is paid and if the refund is not claimed within the statutory time limit, the Government can definitely keep the amount – since assessments were not provisional refund has to be filed within the time mandated u/s 11B of the CEA, 1944 - Appeals rejected: CESTAT [paras 4 & 5]

2012-TIOL-940-CESTAT-DEL

Durga Industries Pvt Ltd Vs CCE, Indore (Dated : April 10, 2012)

Central Excise – Valuation – Equalised Freight – The provisions of Rule 5 of the Valuation Rules 2000 can, thus be said to be analogous to the provisions of Sub- Section (2) of Section 4, as it stood during period prior to 1.7.2000 - The ratio of the Apex court's judgement in the case of Bombay Tyre International Ltd., (2002-TIOL- 374-SC-CX) is applicable to the new Section 4 also - Equalized freight shown separately in the invoices are not to be added to the assessable value of the goods (Para 9).

2012-TIOL-939-CESTAT-DEL

M/s BIO Veda Research Lab Pvt Ltd Vs CCE, Noida (Dated : January 25, 2012)

Central Excise – Stay / Pre-deposit – manufacture of soap with the aid power and clandestine removal of goods without payment of duty – the power was not only being used in drying the soaps by use of electric fan and air-conditioner, the power was also used by packing machine operated by power for inner packing of the said soap cakes – Prima facie, Revenue has a strong case on the use of power in the manufacture of soaps (Para 5 & 6).

2012-TIOL-937-CESTAT-MAD

M/s The Amaravathi Co-Operative Sugar Mills Ltd Vs CCE, Coimbatore (Dated : March 30, 2012)

Central Excise – Manufacture of dutiable and exempted goods – Rule 6 of CENVAT Credit Rules 2004 – Demand of 10%-5% on Press Mud and Sludge arising during the course of manufacture of Sugar and Molasses – The goods cannot be treated as excisable goods for the purpose of Section 2(d) even after inserting an Explanation under Section 2(d)

Rule 6 - When common inputs are used in manufacture of dutiable and exempted products, the liability to pay the amount of 10% - 5% would arise only for final products and not for waste as held by the High Court of Bombay.

As per paragraph 3.7 in Chapter 5 of the CBEC's Central Excise Manual, CENVAT credit is also admissible in respect of amounts of inputs contained in any of the waste, residue or by-product. It further states that the basic idea is that CENVAT credit is admissible so long as the inputs are used in or in relation to the manufacture of final products – Demand of 10%-5% is set aside.

Also see analysis of the Order

2012-TIOL-936-CESTAT-BANG

M/s Maruthi Transformers Vs CCE, Bangalore (Dated : June 10, 2011)

Central Excise – Stay/Applications for waiver of pre-deposit - Liability to pay interest on supplementary invoices issued by appellants subsequent to clearance of goods – Issue no longer res integra as it is covered by the judgment of Apex Court in SKF Ltd - ( 2009-TIOL-82-SC-CX ) - Pre-deposit of entire amount of interest payable ordered 2012-TIOL-935-CESTAT-DEL

M/s Kap Cones Vs CCE, Delhi-III (Dated : July 3, 2012)

Cenvat credit availed on capital goods at Manesar factory while the documents were in the name of Udyog Vihar factory - Even if these capital goods had earlier been installed in Udyog Vihar unit and were subsequently transferred to Manesar unit and even if, it is held that at the time of transfer of capital goods to Manesar unit, the Udyog vihar unit was required to reverse the Cenvat credit, the Manesar unit would be eligible for the Cenvat credit – prima facie case in favour: CESTAT [para 6]

Cenvat credit availed in respect of LDPE, LLDPE granules and PVC films while it appeared that none of the appellant's factories at Gurgaon or Manesar had capacity to use these inputs – no evidence produced that the same were used in the factory – shortage of input and finished goods - Appellants do not have a prima facie case in this matter – Pre-deposit ordered: CESTAT [paras 6, 7 & 8]

2012-TIOL-930-CESTAT-DEL

M/s Dalmia Cements (Bharat) Ltd Vs CCE, New Delhi (Dated : July 3, 2012)

Cenvat credit to the extent the items had been used purely in erection work, i.e. foundation for erection of machinery and making supporting structures for the machinery, or other structures fixed to earth is correctly disallowed but to the extent the steel items have been used in fabrication of identifiable items of machinery, covered by the definition of capital goods as given in Rule 2 (a) of Cenvat Credit Rules, the credit would be admissible – Pre-deposit ordered of Rs.1 Crore: CESTAT [paras 9 & 10]

2012-TIOL-929-CESTAT-BANG

M/s Cauvery Iron & Steel (India) Vs CC, CE & ST, Hyderabad (Dated : March 2, 2012)

Central Excise – Stay / Pre Deposit –Imposition of penalty on registered dealer under Rule 15 of CENVAT Credit Rule, 2004 – Followed the decision of Tribunal in the case of Karnataka Metal Company – Rule 15 does not purport to penalize a dealer who is incapable of utilizing CENVAT credit - Granted Stay – (Para 2).

2012-TIOL-923-CESTAT-MUM

M/s B G Chitale Vs CCE, Pune-II (Dated : March 13, 2012) Running unit purchased with machineries and dies bearing its brand name – manufacturing goods out of such dies will disentitle the new manufacturer from availing the benefit of SSI notification: CESTAT [paras 7 & 8]

Matter remanded to Commissioner (A) for giving a finding on limitation and cum-duty benefit [paras 8 & 9]

Also see analysis of the Order

2012-TIOL-922-CESTAT-BANG

Karnataka Agro Chemicals Vs CCE, Bangalore (Dated : February 2, 2012)

Central Excise – Stay/Applications for waiver of pre-deposit – Demand of duty arising out of classification of appellants products as ‘plant growth regulators' under Chapter 3808.40 – Appellants claim classification under Chapter 31.05 attracting Nil rate of duty – Appeal being taken up on remand from Apex Court and the limited purpose of remand ordered by Apex Court was to determine whether the presence of 0.31 % Nitrogen would make the product 'Other Fertilizer' to be classified under Chapter 31.05 – Commissioner examined the matter in extenso and reached the conclusion that mere presence of Nitrogen was not sufficient to classify the product under Chapter 3105.00 and that N, P or K must be present as an essential constituent – Appellant yet to show as to why chemicals like zinc sulphate, manganese sulphate, ferrous sulphate and boric acid were admixed with fertilizers to manufacture the so- called 'other fertilizers' – No prima facie case for full waiver of pre-deposit – Pre- deposit of Rs. 5 crores ordered

2012-TIOL-921-CESTAT-MUM

M/s Lupin Ltd Vs CCE & ST, LTU, Mumbai (Dated : February 21, 2012)

Refund – it is clear that the refund of the Cenvat Credit u/r 5 of CCR, 2004 is admissible only in respect of those inputs which have been used in the manufacture of the product exported under Bond or LUT – original authority has sanctioned refund based on the ratio of the export turnover to the total turnover which is contrary to the provisions of rule 5 and notification issued thereunder – Matter remanded to the original adjudicating authority: CESTAT [paras 6.1 & 8]

2012-TIOL-913-CESTAT-MUM

Kundan Industries Ltd Vs CCE, Thane-II (Dated : March 27, 2012)

Fortnightly payment of duty – period involved is 2000-2001 - During the period of forfeiture, a manufacturer can pay duty on consignment wise basis by utilizing Cenvat Credit – prima facie applicant has a strong case in favour in view of LB decision in Noble Drugs Ltd. 2007-TIOL-1097-CESTAT-Mum-LB - Pre-deposit waived and stay granted: CESTAT [para 4] 2012-TIOL-905-CESTAT-MUM

Sterlite Technologies Ltd Vs CCE, Mumbai (Dated : March 26, 2012)

Cenvat credit on structural items like M.S. Structures, plates, flats, angles, channels, bars and beams etc. – divergent views of Tribunal and matter getting finally settled by LB decision in Vandana Global 2010-TIOL-624-CESTAT-DEL-LB - prima facie major portion of demand is time barred – Pre-deposit offer made of Rs.2 lakhs by applicant sufficient for hearing the appeal: CESTAT [para 3]

2012-TIOL-901-CESTAT-MUM

Siemens Ltd Vs CCE, Aurangabad (Dated : February 29, 2012)

Clearance of goods at nil rate of duty in terms of Notfn. 6/2006-CE – demand of 5% amount made on the ground that applicant has not fulfilled conditions imposed under rule 6(6)(vii) of the CCR, 2004 inasmuch as the goods were not supplied through International Competitive Bidding but through Tariff based competitive bidding - Certificate issued by Jt. Secretary, Ministry of Power, Govt. of India clearly mentions that the power project is on the basis of ICB – prima facie strong case in favour – Pre- deposit waived and stay granted: CESTAT [para 6]

2012-TIOL-893-CESTAT-MAD

M/s Indian Oil Corporation Ltd Vs CCE, Madurai (Dated : March 8, 2012)

Central Excise – Amount representing duty of Excise - Composite price – Administered Price Mechanism – Only a composite price under the administered pricing mechanism has been charged from the buyers under relevant invoices and no amount representing the same as duty of excise has been charged from the buyer. The necessary ingredients of Section 11D not satisfied. Matter remanded for verification of relevant invoices. (Para 4)

2012-TIOL-892-CESTAT-MAD

M/s Bnazrum Agro Exports (P) Ltd Vs CCE, Madurai (Dated : March 14, 2012)

Central Excise – 100% EOU – MOT Charges – Supervision during office hours – The assessee should pay MOT for the services which are required to be performed beyond the normal place of work of the customs officers and beyond the normal hours of duty. (Para 5)

2012-TIOL-891-CESTAT-DEL Shri Pranayadhutta Shukla Vs CCE, Indore (Dated : January 31, 2012)

Central Excise – Re-Packing and re-labelling of hair oil – duty demanded on such re- packing and re-labelling of hair oil by the appellants – the claim of the appellants that the goods in question are Ayurvedic medicine is not gone into by the adjudicating authority in the impugned order – Matter remanded (Para 6, 7 & 8).

2012-TIOL-890-CESTAT-MUM

M/s Sanket Food Products Pvt Ltd Vs CCE, CC & ST, Aurangabad (Dated : May 30, 2012)

Pan Masala Packing machines (Capacity of Determination & Collection of Duty) Rules, 2008 – as the applicant added 20 new packing machines from 18 th June, 2009 after due intimation and after getting necessary permission, therefore, they are prima facie liable to pay duty in respect of the new machines from 18.06.2009 and not for the whole month – strong case in favour – Pre-deposit waived and stay granted: CESTAT [para 8]

2012-TIOL-885-CESTAT-DEL

M/s C & S Electric Ltd Vs CCE & ST (LTU), New Delhi (Dated : March 21, 2012)

Manufacture – s. 4A Valuation - Imported switchgear marketed by appellant after putting their labels - prima facie view is that putting of labels on the product would amount to manufacture, as the labels not only have the name of the appellant but also their logo and Section 2(f)(iii) does not say that the labels affixed in the process of labelling or re-labelling must also have the MRP mentioned on them – Pre-deposit ordered of Rs.3 Crores: CESTAT [ paras 5, 6 & 7 ]

Imposition of penalty u/r 26(1) of CER, 2002 - Shri Rakesh Dhawan is only an employee of the appellant company in charge of their accounts and the department - prima facie, Department has not shown as to how he is liable for penalty under provisions of Rule 26 (1) of the Central Excise Rules, which provides for penalty on a person who acquires possession of or is in any way concerned, in transporting, removing, keeping, concealing, selling, purchasing or in any other manner dealing with excisable goods which he knew or had reason to believe, are liable for confiscation - requirement of pre-deposit of penalty is waived and stay granted – Stay application allowed: CESTAT [ para 8 ]

Also see analysis of the Order

2012-TIOL-884-CESTAT-DEL

M/s Packaging India Pvt Ltd Vs CCE, Meerut (Dated : February 1, 2012) Central Excise – Area Based Exemption Notification - The fact that Notification No.49/2003-CE was mentioned instead of Notification No.50/2003-CE, cannot be considered to be a mistake fatal to the appellant's claim of benefit – It is well settled law that the substantive benefit if otherwise available should not be disallowed on the basis of minor procedural irregularities (Para 10).

2012-TIOL-876-CESTAT-MUM

CCE, Raigad Vs ONGC Corporation Ltd (Dated : May 20, 2011)

Revenue filing an appeal against a public sector undertaking - Since Revenue has failed to obtain the clearance from the Committee on Disputes to contest the appeal the appeal is dismissed as not maintainable – Applicant seeking restoration of appeal on the ground that the Supreme Court in case of Electronics Corporation of India Ltd. (2011-TIOL-18-SC-CX-LB) has held that the earlier orders giving direction about the requirement of NOC by Committee on Disputes to enable the department to file appeal have been recalled inasmuch as the department would be entitled to file appeals even in the absence of NOC – Right assured under section 35B of the CEA, 1944 is not subject to any limitation as regards requirement of NOC – once the directions stood recalled, question of dismissal of appeal on basis of absence of COD does not arise: CESTAT [paras 2 & 3]

Contention that Board Instruction F.No. 390/R/262/09-JC dated 24 th March, 2011 does not state that the decision of the apex Court would apply retrospectively is not sustainable as once the apex Court either clarifies the provision of law or declares any particular principle of law, it would apply right from the day in respect of which the law has been declared and has been in existence: CESTAT [para 6]

Once it is apparent that merely on the ground of refusal of the permission by the Committee on Disputes, the appeal could not have been dismissed and yet the appeal was dismissed solely on the said ground, such an order deserves to be recalled – Order recalled and appeal restored: CESTAT [paras 6 & 7]

2012-TIOL-875-CESTAT-DEL

M/s Kodak India Ltd Vs CC & CE, Indore (MP) (Dated : March 19, 2012)

Central Excise – Refund – Refund of Central Excise duty paid on clearance of empty MS Drums/HDPE /PP/LDPE bags/PVC drums and cans in which raw material were received – Refund disallowed by the Commissioner (Appeals) on the ground of time bar – In absence of any Show Cause Notice, the deposits made by the appellant cannot take the colour of the 'duty' so as to invite the limitation provisions – Order of Commissioner (Appeals) set aside and appeal allowed with consequential relief to the appellants.

2012-TIOL-869-CESTAT-MUM

M/s Bharat Petroleum Corporation Ltd Vs CCE, Mumbai-II (Dated : February 21, 2012) Denial of Capital goods credit of 50% in the subsequent year on the ground that the capital goods are in the process of assembling, erection and installation and not yet put to use for manufacture of final product is improper in view of Bombay High Court decision in Ispat Industries dated 07.06.2011 – Appeal allowed: CESTAT [paras 4 & 5]

2012-TIOL-868-CESTAT-MUM

M/s Balmer Lawrie & Co Vs CCE, Mumbai-I (Dated : March 14, 2012)

CX - Valuation – addition of Transport charges in AV - While claiming credit of Service Tax on outward transportation, the applicant is claiming that freight is a part of the price whereas when it comes to including the transportation charges in Assessable value, the applicant contends that the same is not a part of manufacturing activity – prima facie, the applicant has not made out a case for total waiver of duty – Pre- deposit ordered: CESTAT [para 5]

2012-TIOL-863-CESTAT-MUM

M/s Vatan Textiles Vs CCE, Aurangabad (Dated : January 17, 2012)

Central Excise – 100% EOU – Clandestine manufacture and clearance of goods in the guise of design software – the appellants have not been able to prove their case satisfactorily that they have not cleared the goods without payment of duty. Therefore, we agree with Commissioner that the appellants have clandestinely manufactured and cleared the goods under the guise of design software ( Para 7.1).

Sale Value of excisable goods shown in Excise records vis-à-vis Annual Report - Sale value of fabrics as per Annual Report is more than the sale value shown in excise records - The balance sheet has been signed by the Managing Director and is an authentic document under the Companies Act, and, therefore the duty on the differential value has been correctly demanded by the department (Para 7.2).

Clearances to Job-workers - The assessee has sent the fabrics to the sub-contractor for job-work for getting processed the fabrics and the goods were never received back from the job-workers - There is no dispute that the goods were cleared and bills were raised for the fabrics for consideration and it was nothing but sale and, therefore, duty is required to be paid by the appellants on such sales (Para 7.3).

Quantification of Duty Demand – If there is no import of raw materials for manufacture of finished goods in 100% EOU, rate of duty applicable will be governed by rates mentioned in the Notification No.8/1997-C.E but not under Notification No.2/1995-C.E, which is applicable in respect of goods manufactured out of imported raw material as well as indigenous raw material – Matter remanded for re- quantification of duty demand (Para 9).

2012-TIOL-859-CESTAT-MUM M/s Renfro India Pvt Ltd Vs CCE, Pune-III (Dated: April 26, 2012)

Refund under rule 5 of CCR, 2004 - Credit of Service Tax for three years was taken by making one entry after a lapse of time - said amount of Cenvat credit was not mentioned as receivable in the books of accounts – it is necessary to ensure that the eligible service received under various invoices have actually gone into manufacture of exported goods and not utilized for other purposes – Board Circular 120/01/2010-ST dt. 19.01.2010 does not talk about the credit which was related to the previous years and taken subsequently - Applicant has not made out a case for total waiver – pre- deposit ordered: CESTAT [paras 8 & 9]

Also see analysis of the Order

2012-TIOL-858-CESTAT-BANG

M/s Karnataka Metal Company Vs CC, CE & ST, Hyderabad (Dated: January 20, 2012)

Central Excise – Stay / Pre-deposit - Penalty Under Rule 25 of the Central Excise Rules, 2002 – Issue of invoices to their customer without supply of goods - These are facts admitted by an employee of the appellants - Prima facie, the appellants attracted penalty under Rule 25 – Ordered for pre deposit of penalty amount (Para 1 & 2).

2012-TIOL-852-CESTAT-MUM

ONGC Ltd Vs CCE, Raigad (Dated : January 27, 2011)

Revenue filing an appeal against a public sector undertaking - Since Revenue has failed to obtain the clearance from the Committee on Disputes to contest the appeal the appeal is dismissed as not maintainable: CESTAT [para 4]

2012-TIOL-851-CESTAT-BANG

M/s GTN Industries Ltd Vs CCE, Hyderabad-III (Dated : January 4, 2012)

Central Excise - Stay / Pre Deposit – CENVAT Credit – Availing of CENVAT Credit on MS Angles, Channels, etc., which were used for fabricating structural support for capital goods, during the period between May, 2005 and September, 2009 – Appellant deposited an amount of Rs.61,188/- which is equal to the CENVAT Credit taken and interest amount for normal period of limitation - The appellant has not pleaded financial hardships - Directed to pre-deposit an amount of Rs.1,00,000/- (Para 2-5).

2012-TIOL-849-CESTAT-MUM M/s Himtaj Ayurved Pvt Ltd Vs CCE, Mumbai-I (Dated : March 28, 2012)

Applicants have not produced any legal documents to show that they got right to succeed in respect of the trade name owned by the companies run by the father and grandfather – prima facie benefit of SSI exemption not available in respect of goods manufactured with the brand name of others – Pre-deposit ordered: CESTAT [paras 7, 8, 9]

Also see analysis of the Order

2012-TIOL-847-CESTAT-MUM

M/s Tien Yuan India Pvt Ltd Vs CST, Belapur (Dated : March 13, 2012)

Refund of Cenvat Credit availed on inputs and input services is strictly governed by Rule 5 of the CCR, 2004 – though the Range Superintendent has in his report clearly stated that the assessee has not furnished any evidence to prove that input on which refund claimed has been utilized in the final products, the Assistant Commissioner has proceeded to grant refund – the safeguards, conditions and limitations as prescribed under rule 5 are required to be fulfilled – Commissioner(A) has rightly held that assessee has not fulfilled condition no. 4 of the Appendix to notification – matter remanded to original authority for verification of requirement of conditions mentioned in notfn. 05/2006-CE(NT): CESTAT [paras 8, 9 & 10]

2012-TIOL-844-CESTAT-MUM

Skoda Auto India Pvt Ltd Vs CCE, Aurangabad (Dated : June 6, 2012)

CX Valuation - Addition of Pre-delivery inspection charges (PDI) and after sales service charges collected by dealers in transaction value – manufacturing of a product and marketability thereof are inbuilt elements of the scheme of AV under Section 4 of the CEA, 1944 - present case is not case which can be considered that denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen' faith – Applicant has not made out a case for waiver - Pre-deposit ordered of Rs.1.06 Crores: CESTAT [ paras 13, 14 & 15]

Also see analysis of the Order

2012-TIOL-843-CESTAT-MUM

M/s Jabs International Pvt Ltd Vs CCE, Belapur (Dated : March 26, 2012)

Applicant, a 100% EOU imported “Pippali” without payment of Customs duty and after processing cleared to DTA by claiming benefit of concessional rate of duty under notfn. 23/2003-CE – paragraph 6.8 of the FTP relates to “rejects or waste and scrap” - since impugned goods is not waste and scrap, prima facie applicant has not made out a case for total waiver of dues – Pre-deposit ordered: CESTAT [paras 5 & 6]

2012-TIOL-842-CESTAT-MUM

CCE, Pune-I Vs M/s Indus Fabricons Pvt Ltd (Dated : February 14, 2012)

Valuation – s.4 of the CEA, 1944 - Appellants are clearing 10% of goods to independent buyer at the same price at which 90% of the goods were cleared to the alleged ‘related person' M/s Mojj – since M/s Mojj are purchasing the same goods from other manufacturer at almost the same price, allegation that assessable value of the goods manufactured by the respondent should be the price at which M/s Mojj sold the goods is not sustainable: CESTAT [paras 6 & 7]

2012-TIOL-837-CESTAT-MUM

Mahabal Auto Ancillaries Pvt Ltd Vs CCE, Kolhapur (Dated : April 19, 2012)

Applicant are having three units - Unit II and III are undertaking job work for Unit no. I - Applicant availed Cenvat credit in respect of service tax paid on manpower recruitment or supply agency's services and security agency services which were used by their job worker units – Unit no. II and III are not registered with Revenue authorities – prima facie applicant not eligible for availing Cenvat Credit since service not used by applicant – Pre-deposit ordered: CESTAT [para 8]

2012-TIOL-833-CESTAT-MUM

M/s Monarch Catalyst Pvt Ltd Vs CCE, Mumbai-I (Dated : April 26, 2012)

Rule 3(5) of CCR, 2004 - Imported inputs cleared as such on reversal of countervailing duty - Special Additional Duty availed as Cenvat Credit not reversed at the time of removal - nowhere in the returns the applicant has mentioned that they have retained the credit of 4% SAD - limitation is a mixed question of law and facts - Pre-deposit ordered of the entire amount of duty confirmed: CESTAT [paras 7 & 8]

2012-TIOL-828-CESTAT-MUM

M/s Venugopal Foods Pvt Ltd Vs CCE, Pune (Dated : April 13, 2012)

Dutiability of Sugar Syrup consumed within the factory of production for manufacture of Biscuits having per kg retail sale price not exceeding Rs. 100/- - for period prior to 12.09.2011 as Government has floated a survey for issuance of s.11C notification, pre-deposit of dues waived and stay granted from recovery: CESTAT [paras 4 & 5] Also see analysis of the Order

2012-TIOL-827-CESTAT-MUM

M/s Polygenta Technologies Ltd Vs CCE & CC, Nasik (Dated : March 2, 2012)

Notfn 30/2004-CE – denial of exemption on the ground that Cenvat credit taken on inputs – applicant contends that they availed Cenvat only in respect of 52.528 MTs of POY and the Draw Texturized Yarn so manufactured was cleared on payment of duty and if they are allowed Cenvat Credit on all inputs used in the manufacture of exempted DTY, the duty liability would come to Rs.24.75 lakhs against demand raised of Rs.3.07 Crores – taking into consideration the alternative submission of the applicant and the financial hardship pleaded, pre-deposit ordered of Rs.24.75 lakhs in cash: CESTAT [para 8]

2012-TIOL-826-CESTAT-MUM

M/s Perfo Chem (I) Pvt Ltd Vs CCE, Belapur (Dated : February 7, 2012)

Applicants importing chemicals in bulk and thereafter repacking/re-labelling and clearing the same on payment of appropriate duty - Revenue denying Cenvat credit on the ground that process does not amount to manufacture - if the activity does not amount to manufacture, there can be no question of levy of duty, and if duty is levied, Cenvat cannot be denied by holding that there is no manufacture - applicant has paid duty more than one crore through PLA in addition to the duty paid through Cenvat account - strong case in favour - pre-deposit of adjudged dues waived and stay granted: CESTAT [para 5]

2012-TIOL-821-CESTAT-MUM

M/s Siemens Ltd Vs CCE, Belapur (Dated : June 7, 2012)

Whether the credit of duty paid on inputs “end shields” and “stator housings” is available to the assessee as these inputs were exclusively used in the manufacture of exempted final products particularly when the assessee has paid 8%/10% of the price of the exempted final products - If the amount attributable to these two inputs out of total amount paid is more than the duty demanded in respect of these two inputs, then issuing the demand notice would not be justified – verification report based on photograph without dismantling the machine is not clear - Matter remanded: CESTAT. [paras 11 to 15]

Also see analysis of the Order 2012-TIOL-820-CESTAT-MUM

CCE, Nagpur Vs M/s Indo Rama Synthetics (I) Ltd (Dated : March 7, 2012)

Wastes of Cenvatted packing materials such as paper tubes/bobbins, corrugated paper/boxes and kraft paper cleared without payment of duty – whereas the same Commissioner(A) has allowed the appeal of the Revenue for a particular period, for a different period he has allowed the assesses appeal – both AC & Commr(A) have taken opposite views on same matter and they were not consistent in their stand in different proceedings – matter remanded to original authority for deciding the matter in the light of SC decision in West Coast Industrial Gases Ltd. (2003-TIOL-03-SC-CX) : CESTAT [paras 7 & 8]

2012-TIOL-819-CESTAT-MUM

JSW Ispat Steel Ltd Vs CCE, Raigad (Dated : February 20, 2012)

Appellant, a manufacturer of sponge iron availed credit on telephone services, air travel agent services, mandap keeper and event management services – since services taken by the assessee are in the course of their business of manufacturing, prima facie case made for total waiver of pre-deposit – lower appellate authority directed to dispose appeal on merit without insisting for any pre-deposit: CESTAT [para 6]

2012-TIOL-814-CESTAT-BANG

M/s Federal Mogul TPR (India) Ltd Vs Additional Commissioner Of Central Excise Bangalore (Dated : January 19, 2012)

Central Excise - Stay/Application for waiver of pre-deposit - Procurement of goods and clearance as such by discharging duty on lower value contravening Rule 3(5) of CCR 2004 - Claim of first appellant that goods were supplied on payment of higher duty in excess of which is required on the price agreed upon - Excess duty paid back by second appellant and supplementary invoices issued to first appellant-supplier who took back the credit - Claim of appellants that transactions occurred due to inadvertent mistakes on the part of appellants - Mandate of law cannot be defeated on the plank of mistakes - Transactions happened behind the back of the department - Appellants cannot claim waiver of pre-deposit and stay against recovery - First appellant to pre-deposit of Rs. 15 lakhs and second appellant to pre-deposit Rs. 50,000/- penalty - Subject to compliance of order of pre-deposit balance of dues including penalty on individual waived

2012-TIOL-813-CESTAT-BANG

M/s Kavveri Telecom Products Vs CCE, Bangalore (Dated : January 31, 2012)

Central Excise - Stay/Application for waiver of pre-deposit - Manufacture of patch panel antennas for BSNL - Goods clandestinely supplied to Goa based trader who in turn supplied them to BSNL - Based on available evidence on record, no prima facie case for full waiver of pre-deposit - Pre-deposit of Rs. 15 lakhs ordered in addition to Rs. 10 lakhs already paid

2012-TIOL-806-CESTAT-DEL

Mohan Singh & Co Vs CCE, Jallandhar (Dated : November 8, 2011)

Central Excise – Valuation – Non-inclusion of value of free supply material in assessable value of final products resulting in short payment of duty – Demand of duty with interest and levy of equivalent penalty – Tribunal held that appellants suppressed facts from department with intent to evade duty and upheld invocation of extended period of limitation – Penalty reduced to Rs. 1 lakh resulting in revenue filing appeal before High Court – High Court set aside Tribunal's order and remanded the matter to Tribunal for fresh decision – Appellant appealed against Tribunal order before Apex Court which resulted in dismissal of appeal – It is settled law that dismissal of Civil Appeal by Apex Court against an order passed by lower court even if by non-speaking order results in merger – From the records, the fact of filing of appeal by appellant before Apex Court against the same order and dismissal of appeal by Apex Court not brought to the notice of High Court when Revenue's appeal was under consideration in High Court – Department directed to ascertain as to whether appellant filed appeal against the same order in Apex Court and whether Civil Appeal had been dismissed and if so, approach High Court for necessary directions

2012-TIOL-805-CESTAT-AHM

M/s Banco Products ( India ) Ltd Vs CCE, Vadodara (Dated : April 13, 2012)

Central Excise – Stay/Application for waiver of pre-deposit – Demand under Rule 6(3) of CCR 2004 confirmed on the ground that clearances against CT-2 Certificates amount to clearance of exempted goods – Plethora of Tribunal decisions which held that clearances made under CT-2/CT-3 Certificates not hit by provisions of Rule 6(3) of CCR 2004 – Full waiver of pre-deposit ordered

2012-TIOL-801-CESTAT-MUM

Zaidan Metal Rolling Mills Pvt Ltd Vs CCE, Mumbai (Dated : March 19, 2012)

Monthly ER-1 return is NOT required to be filed by an assessee who is operating under the compounded levy scheme – Penalty imposed u/r 27 for alleged contravention of rule 12 of CER, 2002 set aside and appeal allowed with consequential relief: CESTAT

Also see analysis of the Order

2012-TIOL-800-CESTAT-MAD M/s Sri Krishna Smelters Ltd Vs CCE, Salem (Dated : February 1, 2012)

Central Excise – Wrong availment of CENVAT Credit – Ex-parte order passed - Fate of the audit objection giving rise to wrongful availment of CENVAT credit needs clear finding - Physical inventory disclosed shortage of raw materials involving disallowance of CENVAT credit may be subjected to redressal of grievances relating to valuation and quantification thereof - Following course of natural justice, quantification, valuation and determination of proper liability and quantum of reversal of CENVAT credit be made for which the matter is remanded to the Adjudicating Authority.

2012-TIOL-799-CESTAT-MUM

Hindustan Petroleum Corporation Ltd Vs CCE, Mumbai-II (Dated : March 26, 2012)

CX - Withdrawal from September, 2004 of facility of removal of petroleum products without payment of duty from refineries to warehouses - duty demanded in respect of petroleum products which remained in the pipe line namely BPT pipeline and Pirpau pipeline - factual position is that BPT pipeline does not belong to the applicant and Pirpau pipeline is within the factory limit of the applicant and petroleum products which were lying in the pipeline on the specific date are accounted in the inventory stock of the refinery and the same was cleared on payment of duty subsequently - Prima facie, the applicant has made out a strong case in their favour - Pre-deposit waived and stay granted: CESTAT. [paras 4, 5 & 6]

2012-TIOL-796-CESTAT-MUM

M/s Vako Seals Pvt Ltd Vs CCE, Mumbai-V (Dated : February 14, 2012)

Premises on which rent has been paid is not registered with Central Excise department – Cenvat Credit of Service Tax paid on rental charges not available – Pre- deposit ordered: CESTAT [paras 2, 3]

Also see analysis of the Order

2012-TIOL-787-CESTAT-MUM

Pepsico India Holding P Ltd Vs CCE, Mumbai (Dated : February 9, 2012)

Cenvat - There is no requirement in the rules that the invoice number should be printed on the invoice – only requirement is that invoice should be serially numbered – denial of Cenvat credit on the ground that invoice number was handwritten or rubber stamped is not proper – appeal allowed with consequential relief: CESTAT [paras 4, 5, & 6]

Also see analysis of the Order 2012-TIOL-786-CESTAT-MUM

Digvijay Textiles Pvt Ltd Vs CCE, Kolhapur (Dated : May 3, 2012)

Applicant availed Cenvat credit on the strength of the invoices issued by supplier and it is admitted fact that M/s. Natraj Processors has not paid duty at the time of clearance of the goods to the applicant – duty paid three years hence after adjudication at the end of the supplier - supplier of goods as well as the applicant unit have common Directors, hence, it cannot be said that the applicant unit was not aware of the fact that the supplier unit has not paid the duty – Pre-deposit ordered: CESTAT [para 7]

2012-TIOL-783-CESTAT-MUM

Mahindra Sona Ltd Vs CCE, Nashik(Dated : April 20, 2012)

In the ER1 returns only the duty payable amount, credit taken and duty paid are indicated - From the details given, no one can make out whether credit of tax availed is correct or not and whether it is in respect of a dutiable or exempted product - prima facie it cannot be claimed that there is no suppression: Pre-deposit ordered: CESTAT [para 7]

Also see analysis of the Order

2012-TIOL-782-CESTAT-AHM

M/s Transasia Bio-Medicals Ltd Vs CCE, Daman (Dated : January 17, 2012)

Central Excise – Valuation – Allegation of goods being manufactured and cleared through layered transactions by creating job work and trading entities resulting in undervaluation and evasion of duty – Revenue alleged that the goods viz., cell pack never moved to the declared premises of principal and were cleared directly from the factory of appellant (job worker) either to godown in Mumbai or to some ultimate customers – Allegation by Revenue that entities were created with the sole purpose of evading payment of duty by way of gross undervaluation – Allegation of clandestine clearance of diagnostic reagents without payment of duty by appellant – Though principal was alleged to be a dummy unit, SCN not issued by Revenue to principal – Principal entity a JV company and copies of returns and statutory documents related to this entity produced and found to be genuine – Copies of loan license and manufacturing agreement between appellant (job worker) and Principal produced on record – Goods manufactured by appellant on job work basis cleared to Principal by paying excise duty on sale price of Principal – In view of facts and documentary evidence, Principal cannot be regarded as dummy unit as argued by revenue – It is settled law that for the purpose of s. 4 a unit would be taken to be a related person if there is reciprocity of interest between assessee and such alleged related person

Clearance of diagnostic reagents and demokits without payment of duty – Diagnostic reagents cleared either by way of free replenishments against coupons provided to customers at the time of purchase of instruments or supplied free of cost to them which should be considered as a discount in kind – No payments were received or collected by appellants and invoices were issued only for accounting purpose – Demokits are not marketable and supplied along with instruments to customers for demonstration purpose and they are distinguishable from normal kits of diagnostic reagents cleared by appellants – Cost of demokits included in sale price of instruments which are exempted from payment of duty – Contentions of appellants acceptable in the absence of any material evidence by revenue to prove otherwise

Eligibility of SSI exemption for 2001-02 – Value of clearances exceeded Rs. 3 crores because revenue adopted the price of packs sold from depots instead of adopting values at which they were sold to Principal – Further value of clearances of diagnostic reagents and demokits as well as value of packing charges and forwarding charges were added to value of clearance – In the absence of proof otherwise, value of clearances as contended by appellants to be considered – Since there is no evidence to prove otherwise, contention of revenue remains unsubstantiated – SSI exemption available to appellants

Invocation of extended period of limitation – Production of diagnostic reagents and demokits duly accounted in their recorsds and such records were duly subjected to audit/verification – Allegation of suppression or mis-statement of facts with intent to evade payment of duty by revenue not sustainable – Impugned order of Commissioner set aside

2012-TIOL-776-CESTAT-MAD

CCE, Chennai Vs Bhagawandas Metals Ltd (Dated : October 7, 2011)

Central Excise – Compounded levy scheme – Captive Consumption of MS Ingots for CTD Bars – Date of clearances – Extended Period – Limitation – The show-cause notice does not indicate that the impugned goods have been cleared from the approved place later to 31.08.1997 (compounded levy is effective from 01.09.1997). The assessee was manufacturing 'MS Ingots' in the 'Induction Furnace Unit" and other products in the "Roll Mill Area". There is no indication about actual date of removal from the bonded store room if any of the "Induction Furnace Unit". The assessees have also produced evidence to show that on earlier occasions also they were issuing more than or equal to 200 MTs on a single date. The circumstances indicate that when the assessee issued the goods for captive consumption on 31.08.1997, they were under a bona fide belief that they were entitled to the benefit of exemption merits acceptance. Therefore, extended period of limitation cannot be invoked. (Para 22.4 & 23)

2012-TIOL-773-CESTAT-DEL

M/s Hindustan Zinc Ltd Vs CCE, Jaipur-II (Dated : May 13, 2011)

Central Excise – Clearance of waste and scrap arising from CENVAT availed inputs and capital goods – Duty demanded with interest invoking extended period and equivalent penalty levied – When waste and scrap of inputs/capital goods are cleared, it is appellants responsibility to ensure that they were entitled to clear them without payment of duty – Clearances cannot be on any presumption that scrap and waste have arisen out of inputs and capital goods on which credit was not taken – It should be substantiated with relevant material/documents – Onus on the appellants to choose exceptions provided in provisions of Rules 57F(18) and 57S(2)(c) – When appellants have not produced any evidence before original authority or appellate authority, demand of duty equivalent to CENVAT credit invoking extended period of limitation justified

2012-TIOL-771-CESTAT-MAD

CCE, Trichy Vs M/s Vel Pharma (Dated : March 5, 2012)

Central Excise – Review by Board under Section 35 E of the Central Excise Act, 1944 – Respondent assessee contends that review was not done within one year from the date of order passed by the Commissioner – Review order was not signed by the Member, but was signed only by a Superintendent - A review order is a statutory order as the same is required to be passed under the Central Excise Act, 1944 exercising the statutory powers vested by Parliament in the Board. An unsigned order of the Board communicated by a junior official like the Superintendent cannot be held to be a valid review order passed by the Board under the statute.

When the matter is pending before the Tribunal, it is inexplicable as to why the relevant review file is missing from the Board's office. It is also inexplicable as to why the copy of the review order sent to the Commissioner, Tiruchirappalli does not bear the signature of the learned Member. A public official like the learned Member of the Board is required to affix his signature to a statutory order or direction made by him in exercise of the statutory functions assigned to him and statutory responsibilities cast upon him - In the absence of any valid review order produced the applications filed before the Tribunal are not maintainable as appeals.

Also see analysis of the Order

2012-TIOL-770-CESTAT-MAD

M/s Texcare (P) Ltd Vs CCE, Pondicherry (Dated : January 30, 2012)

Central Excise – Small Scale exemption – Manufacture – Resultant products manufactured by the assessee has have additional ingredients other than the main raw material and these cannot be considered to be products resulting from mere dilution – Value of these goods shall be added to compute small scale exemption.

Penalty – No penalty is imposable under Section 11 AC for the relevant period is prior to 28.09.1996 – However, penalty under Rule 173 Q is attracted.

2012-TIOL-762-CESTAT-DEL

M/s U P State Spinning Co Ltd Vs CCE, Allahabad (Dated : March 13, 2012) Central Excise - Exemption Notification - Matter remanded by Tribunal - Scope of re- adjudication - In the remand order the Tribunal has returned a categoric finding that merely because of failure to file certificate from NHDC before the clearance of the yarn the benefit of the Notification No. 5/98-CE and 5/99-CE could not be denied. The adjudicating authority while deciding the matter afresh after remand has given a contrary finding to the effect that because of the failure to produce NHDC certificate before the clearance of the yarn the appellant is not entitled to the benefit of those notifications. The effect of the said order-in-original amounts to countermanding /reversing the decision of the Tribunal, which is not permissible under law as a inferior authority in judicial hierarchy has no right / jurisdiction to overturn the finding of superior authority . Only recourse was to file an appeal against the order of the Tribunal. (Para 9)

Non-speaking order - Appreciation of evidence - Remand - The impugned order is a cryptic non speaking order as the conclusion is drawn without any reference to the evidence. The matter is remanded again to the adjudicating authority to decide it afresh by giving a reasoned order referring to the evidence on record for coming to a conclusion. (Para 11)

2012-TIOL-756-CESTAT-MUM

M/s ACC Ltd Vs CCE & ST (LTU), Mumbai (Dated : May 14, 2012)

As per the definition of capital goods given in rule 2(a) of the CCR, 2004, the items listed therein have to be “goods” first - “Goods” by definition are items which can come to the market for being bought and sold and they have to be movable in nature - Chimneys of power plants and storage silos are immovable properties and are not goods - though storage tanks have been specified under capital goods, only such storage tanks which are ‘goods' can fall within the definition of capital goods - steel items which have gone into manufacture cannot be treated as ‘input' for manufacture of capital goods – Pre-deposit ordered of Rs.35 lakhs: CESTAT [ paras 5.1, 5.3, 5.4, 5.5 & 6 ]

Also see analysis of the Order

2012-TIOL-755-CESTAT-DEL

M/s Micro Rubber Industries Pvt Ltd Vs CCE, Delhi - II (Dated : November 16, 2011)

Central Excise - Classification - Micro cellular rubber sheets - Stay/Dispensation of pre-deposit - The expression "used in the manufacture of footwear", as appearing under tariff heading 4008.21 refers to intended use of the goods or the ordinary use of the goods and does not mean that each and every part of the sheet is required to be established as having been used in the manufacture of footwear. Prima facie case in favour of assessee. Stay granted. (Para 6)

2012-TIOL-749-CESTAT-MUM Deputy Chief Manager, Central Railway Printing Press Vs CCE, Mumbai 1 (Dated : February 7, 2012)

Notfn. 10/2006-CE - Central Railway Printing Press, Mumbai is engaged in printing of registers, accounts books, various forms, order books, receipt books and similar articles - there is no evidence on record to show that the goods in question are capable of being bought and sold in the market - Prima facie strong case in favour - Pre-deposit of C.Ex. duty of Rs.2.18 Crores along with penalty and interest waived and stay granted: CESTAT

Also see analysis of the Order

2012-TIOL-748-CESTAT-AHM

M/s Sharda Crimpers Vs CCE, Surat (Dated : April 13, 2012)

Central Excise – Amount frozen as per directions of Tribunal claimed as refund after matter was disposed of in favour of appellant – Claim rejected by lower authorities on the ground that refund cannot be granted in cash as appellants factory was closed down and there is no provision for refunding amount in cash when it was frozen in MODVAT A/c – Orders of lower authorities upheld in view of Larger Bench decision in Steel Strips case - 2011-TIOL-656-CESTAT-DEL-LB

2012-TIOL-745-CESTAT-MUM

M/s Ciens Laboratories Vs CCE, Mumbai-IV (Dated : June 4, 2012)

Application for Restoration of Appeal kept pending for more than six years in the registry without listing the same - since applicant had filed miscellaneous application immediately after dismissal of their appeal and explained the reasons for non- appearance on the date fixed, order of dismissal recalled and appeal restored - as reasons for not listing of application is not coming out from the records, Registrar, CESTAT, New Delhi directed to fix responsibility of the concerned officer/official - matter listed for final hearing on 12.07.2012: CESTAT [paras 2 & 3]

2012-TIOL-741-CESTAT-MUM

M/s Vista Film & Packaging Pvt Ltd Vs CCE, Thane-I (Dated : March 2, 2012)

Cenvatted capital goods can be removed for export under bond - no cause for recovery of Cenvat credit under rule 3(5) of the CCR, 2004 - prima facie strong case in favour - pre-deposit waived and Stay petition allowed: CESTAT [para 4]

Also see analysis of the Order 2012-TIOL-740-CESTAT-DEL

M/s Steel Authority Of India Ltd Vs CCE, Raipur (Dated : March 6, 2012)

Central Excise - Demand of 10% amount under Rule 6(3) of CCR 2004 for supply of goods to SEZ developers - Issue no longer res integra in view of Tribunal decisions in favour of appellant - Impugned order set aside

2012-TIOL-739-CESTAT-DEL

M/s Ericsson India Pvt Ltd Vs CCE, Jaipur-I (Dated : April 2, 2012)

Central Excise - Stay/Application for waiver of pre-deposit - Manufacturer of telephone equipments viz., base transreceiver stations, switching apparatus for mobile/celluar telephony and minilinks - Imported components under exemption Notification No. 24/05-Cus found to be surplus/obsolete re-exported - Components cleared to shop floor and found to be defective also re-exported against warranty claim for replacement - Since goods were not put to actual use, benefit of exemption Notification No. 24/05-Cus denied - No dispute that components were not diverted into Indian market instead of being used for manufacture of equipment - Parties at dispute as to whether or not components imported under exemption notification were actually used for manufacture of equipment - Prima facie case for full waiver of pre- deposit - Stay granted

2012-TIOL-736-CESTAT-MUM

M/s Rashtriya Chemicals & Fertilisers Ltd Vs CCE & ST, LTU, Mumbai (Dated : March 27, 2012)

Notfn. 6/2002-CE - Naphtha received under Chapter X procedure not used for the manufacture of fertilizer or ammonia – appellant cannot get the benefit of the word ‘intended use' as the words qualify the preceding words “such goods are cleared for” only whereas the description of goods mentions that Naphtha has to be used in the manufacture of fertilizer or ammonia - Duty correctly demanded but penalty not imposable u/r 173Q and/or rule 25 as appellant is neither a manufacturer nor producer of Naphtha – Appeals disposed of: CESTAT [paras 6, 8, 13, 16]

Demanding duty on the basis of proportionate use in non fertilizer is a reasonable method...para 6

Words " intended use" as mentioned in the condition are preceded by the words "such goods are cleared for" that means that intended use is applicable when the goods are cleared from the factory of manufacture ...para 8

Appellants are recipient of naphtha under Chapter X procedure/under Central Excise (Removal of goods of concessional rate of duty for manufacture of excisable goods) Rules, 2001 - exemption is available if the goods are for use in the manufacture of fertilizers and ammonia - appellants cannot get the benefit out of the words "intended use"...para 13

Provisions of Rule 196 of Chapter X of the Central Excise Rules and Rule 6 of Central Excise (Removal of goods of concessional rate of duty for manufacture of excisable goods) Rules, 2001 are rightly attracted...para 13

Appellants are not manufacturer of raw naphtha which was received by them under Chapter X procedure and under Central Excise (Removal of goods of concessional rate of duty for manufacture of excisable goods) Rules, 2001 - they will not be covered under the definition of manufacturer producer, registered person of a warehouse or a registered dealer as mentioned in Rule 173Q or Rule 25 of the Central Excise Rules - therefore, they are not liable to penalty under the provisions of these Rules ...para 16.

As per s. 11AC, person who is liable to pay duty as determined under sub-section (2) of Section 11A shall be liable to pay a penalty equal to the duty so determined - s.11A has been made applicable to the recipient of the goods under Chapter X procedure and under Central Excise (Removal of goods of concessional rate of duty for manufacture of excisable goods) Rules, 2001 as mentioned in Rule 196 of the Central Excise Rules and in Rule 6 of Central Excise (Removal of goods of concessional rate of duty for manufacture of excisable goods) Rules, 2001 - penalty imposed u/s 11AC of the CEA, 1944 upheld...para 16

Also see analysis of the Order

2012-TIOL-728-CESTAT-MUM

M/s Dalal Mckenna Pvt Ltd Vs CCE, Belapur (Dated : May 14, 2012)

Fabrication of Nitrogen/Oxygen plant at the premises of customer using goods manufactured and cleared from the factory on payment of duty and bought out items received at site - prima facie the applicants have made out a strong case in their favour in view of the provisions of Notification no. 67/95-CE, as the notification provides exemption to the capital goods manufactured in the factory of production and are used in the manufacture of excisable goods – Pre-deposit waived and stay granted: CESTAT [ paras 12, 13 ]

Also see analysis of the Order

2012-TIOL-727-CESTAT-MAD

M/s GMT Alloys Vs CCE, Chennai (Dated : January 23, 2012)

Central Excise – Stay/Dispensation of pre-deposit – Shortage of inputs - Prima facie, the appellant acted in defiance of law and made knowable breach thereof to be enriched at the cost of Revenue for the questioned raw materials not being used in manufacture -Interest of Revenue weighed heavily and balance of convenience leaned in its favour, following the ratio laid down by the apex court judgments, pre-deposit ordered.

2012-TIOL-726-CESTAT-DEL M/s Nav Bharat Impex Vs CCE, Delhi (Dated : July 21, 2011)

Central Excise – Manufacture of menthol crystals (BP/USP Grade), menthol powder and peppermint oil by availing CENVAT Credit on inputs viz., de-mentholized oil and menthol flakes – As menthol crystals were exempted by Notification No. 4/08-CE dated 01.03.2008, lower authorities issued SCN to recover balance CENVAT Credit available as on 31.03.08 – Appellant paying 8%/10% amount in terms of Rule 6(3) of CCR 2004 – Adjudicating authority had categorically come to the conclusion that products like Menthol powder, Peppermint Oil etc were excisable and dutiable – In the instant case, appellant manufacturing both dutiable and exempted products and followed Rule 6(3) of CCR 2004 – Recovery of CENVAT Credit under Rule 6(1) of CCR 2004 not sustainable – Impugned order set aside

2012-TIOL-722-CESTAT-MUM

CCE, Pune-I Vs L'Oreal India Pvt Ltd (Dated : May 21, 2012)

Cosmetics etc. falling under Chapter 33 of CETA, 1985 - Technical professional products not for retail sale but sold only to Salon for their exclusive internal in-salon use – ‘salon' whether Industry - whether affixing MRP and discharging duty u/s 4A of the CEA, 1944 proper – Matter remanded: CESTAT [ paras 12 & 13 ]

Also see analysis of the Order

2012-TIOL-721-CESTAT-DEL

M/s Vansthali Textiles Vs CCE, Jaipur (Dated : January 25, 2012)

Central Excise – Stay/Application for waiver of pre-deposit – 100% EOU engaged in manufacture of terry towels – Application filed with Development Commissioner for conversion from 100% EOU to EPCG scheme – Capital goods imported duty free to be converted into EPCG scheme – Raw materials procured duty free which were recast into Advance Licenses – Duty demand raised on finished goods lying in stock after debonding – Appellant contended that finished goods were destroyed in fire accidents – Applicability of Notification 52/2003-Cus dated 31-03-2003 is of no consequence as this notification basically provides exemption for capital goods and raw materials imported by 100% EOU for manufacture of final products and does not deal with final products cleared from a 100% EOU – On de-bonding from EOU scheme to EPCG scheme appellants did not pay customs duties as their liability was re-structured with concurrence of DGFT – When fire accidents took place, damaged goods were sold in DTA without intimating Central Excise department about fire accident and sale of damaged goods – Whether removal of ‘partially destroyed' goods manufactured using duty paid raw materials to DTA without giving information to department when there is doubt in r/o interpretation of provisions of FTP, debatable – Prima facie, not a fit case for total waiver of pre-deposit – Pre-deposit of Rs. 1 Crore ordered and balance dues waived

2012-TIOL-720-CESTAT-BANG M/s Bilasraika Songe India Iron Pvt Ltd Vs CCE, Hyderabad (Dated : January 10, 2012)

Central Excise – Eligibility of CENVAT Credit on MS angles, channels etc - Lower appellate authority dismissed the appeal for non-compliance to order of pre-deposit - Demand contested mainly on the ground of limitation - Though plea of bonafide belief was specifically raised in the reply to SCN, Commissioner did not consider it as he rejected the appeal for non-compliance of order of pre-deposit without considering merits of the case - Appellant directed to pre-deposit Rs. 1.67 lakhs and Appellate Commissioner directed to hear the case following principles of natural justice and dispose it of on merits

2012-TIOL-711-CESTAT-MUM

CCE, Mumbai-IV Vs M/s Jacob Electronics Pvt Ltd (Dated : January 10, 2012)

Plastic casing of Audio Cassette manufactured with the brand name 'Universal' - since the casing is not traded in the market under the brand name 'Universal' but is further used in the manufacture of pre-recorded audio cassettes, benefit of SSI Notfn. 175/86-CE cannot be denied – Revenue appeal dismissed: CESTAT [para 3]

Also see analysis of the Order

2012-TIOL-710-CESTAT-MUM

Endurance Technologies Ltd Vs CCE, Pune-I (Dated : February 8, 2012)

Demand of interest u/s 11AB of the CEA, 1944 on the ground that that applicant paid differential duty subsequent to clearance of goods – demand issued on 07.04.2010 for the period March 2005 to 2008 – provision of time limit is applicable in case of interest also – Prima facie case in favour – pre-deposit waived and stay granted: CESTAT [para 4]

2012-TIOL-709-CESTAT-KOL

M/s Saha Industries Vs CCE, Kolkata - V (Dated : January 23, 2012)

Central Excise - CENVAT - Transactions only on paper - Non-receipt of inputs - No physical clearance of manufactured goods - Evidence - Balance of Convenience - Stay / Dispensation of pre-deposit - The case against the assessee is they indulged in fraudulent paper transaction without undertaking any manufacturing activities using cenvatable credit used for clearance of final products from their factory premises. The allegations against the applicant are corroborated by various evidences viz. size of the premises about 300 sq.ft., machinery found in the premises not capable of handling such a huge raw material and finished products, low power consumption, lack of skilled workers etc., which is also corroborated by the report of independent chartered engineer. Balance of convenience in favour of Department. Pre-deposit ordered. (Para 6) 2012-TIOL-707-CESTAT-MUM

Bharat Petroleum Corporation Ltd Vs CCE, Mumbai (Dated : February 1, 2012)

Handling and storage losses – C. Ex duty demand on the ground that applicant has not sought remission of duty under rule 21 of CER – applicant has been paying duty on the handling and storage losses which are more than 0.5% and as per the Board circular, 0.5% storage loss is condonable – Prima facie strong case in favour – pre- deposit waived and stay granted: CESTAT [para 3]

2012-TIOL-703-CESTAT-BANG

M/s Nagarjuna Agrichem Ltd Vs CCE, CC & ST, Visakhapatnam (Dated : January 13, 2012)

Central Excise – Appellate Commissioner dismissed an appeal as time barred – It is settled law that Appellate Commissioner has no power to condone delay in filing appeal beyond stipulated period under statute – Order of Commissioner (Appeals) dismissing an appeal on the ground that it was filed beyond condonable period of delay not to be interfered with by Tribunal

2012-TIOL-702-CESTAT-MUM

Finolex Cables Ltd Vs CCE, Pune-II (Dated : March 15, 2012)

Clearance to sister units – Undervaluation - in the year 2004 Revenue pointed out the deficiencies in the method adopted by the applicants for arriving at the assessable value - Applicants admitted the fact and paid the differential duty - in spite of that for the subsequent periods deficiencies were not removed and goods remained undervalued – along with the monthly returns the applicants are filing some calculation to show that the value has been arrived as per CAS-4 to show their bona fides – however these too were not correct as admitted - no merit in the contention that demand is time barred – pre-deposit ordered of Rs.1.38 Crores: CESTAT [para 10]

2012-TIOL-699-CESTAT-MUM

Dena Bank Vs CCE, Thane-I (Dated : March 6, 2012)

A banking transaction would not normally violate the Central Excise law or the Rules, especially when the same is carried out as part of the normal banking operations - conduct of the bank in discounting export bills or sending the export bills for collection, cannot, in any way, be construed as violation of Central Excise Act or Rules making the goods liable to confiscation - imposition of penalty u/r 27 of CER, 2002 is bad in law - even otherwise, imposition of Rs.5 lakhs penalty u/r 27 of CER, 2002 when the maximum permissible is Rs.5000/- shows clear non-application of mind and ignorance on the part of the adjudicating authority - Such an order is perverse and bad in law – appeal allowed with consequential relief: CESTAT [para 7] Also see analysis of the Order

2012-TIOL-698-CESTAT-MAD

M/s Madras Radiators & Pressings Ltd Vs CCE, Chennai (Dated : January 20, 2012)

Central Excise – CENVAT Credit – Credit of service tax paid for bringing back the empty trolleys required for packing the final products is admissible.

2012-TIOL-695-CESTAT-MAD

M/s SRF Ltd Vs CCE, Chennai (Dated : February 10, 2012)

Central Excise - CENVAT Credit - 100% Credit taken instead of 50% admissible on capital goods - Excess credit reversed before utilizing - Liability to pay interest - Appellant is liable to pay interest in view of the Supreme judgement in case of Ind- Swift Laboratories Ltd - Penalty reduced to Rs 5,000/-

Short payment of amount on removal of inputs as such - Liability to pay interest - No interest is payable as there are no provisions under Rule 3(4) of the CENVAT Credit Rules to charge interest - Penalty reduced to Rs 5,000/-

2012-TIOL-693-CESTAT-MUM

Beauty Art Vs CCE, Mumbai-I (Dated : February 27, 2012)

Prima facie s.11C notification 24/2009-CE (NT) does not apply to ‘printed catch covers' - very fact that s.11C notification was issued in respect of similar products for the period from 1.10.1987 to 31.8.2008 clearly indicates that there was a bona fide belief that packing materials bearing brand name of another person was eligible for SSI exemption – extended period could not have been invoked – Pre-deposit ordered of duty amount for the normal period: CESTAT [para 6]

Also see analysis of the Order

2012-TIOL-685-CESTAT-MAD

M/s Areva T&D India Ltd Vs CCE, Chennai (Dated : March 2, 2012)

Central Excise – Input on which CENVAT Credit was availed and have been supplied as mandatory spares under International Competitive bidding under Notification No 6/2006 CE – Demand for reversal of CENVAT Credit is not proper, since Rule 6(6) specifically provides for exception for goods supplied under International Competitive Bidding.

2012-TIOL-684-CESTAT-MAD

CCE, Trichy Vs Rohini Plastic Industry (Dated : February 1, 2012)

Central Excise – Small Scale Exemption to lay flat tubings captively used in the manufacture of exempted plastic bags – Amendment to the Notification No. 16/97 is only prospective and the clearances made prior to the date of amendment cannot be included for the purpose of calculating aggregate value - There is no duty liability on the appellants once the Notification is given prospective effect – Revenue appeal dismissed.

2012-TIOL-682-CESTAT-MUM

M/s Tata Iron & Steel Co Ltd Vs CCE, Thane-II (Dated : April 26, 2012)

Explanation given by appellant that the conversion charges are inclusive of conversion cost + profit element is reasonable and needs acceptance - for the purpose of valuation under rule 8 of the Valuation Rules, the cost of production is required to be taken and this cannot be equated to the conversion charges charged by the appellants in respect of goods manufactured on job work – Demand of Rs.1.18 Crores set aside and appeal allowed: CESTAT [paras 6 & 7]

Also see analysis of the Order

2012-TIOL-681-CESTAT-BANG

M/s Rastriya Ispat Nigam Ltd Vs CCE, Visakhapatnam (Dated : February 15, 2012)

Central Excise – Stay/Applications for waiver of pre-deposit – Eligibility of CENVAT Credit on steel items like angles, channels, plates etc used for fabrication of machinery - Credit denied by adjudicating authority on the ground that these items did not qualify to be capital goods or inputs – Whether items could be regarded as capital goods or inputs depends on the exact manner of use and this can be addressed by both sides at final hearing - Pre-deposit of Rs. 1.5 Crores ordered – Section 35F of Central Excise Act, 1944

2012-TIOL-680-CESTAT-BANG

S M Kannappa Automobiles (P) Ltd Vs CCE, Bangalore (Dated : December 29, 2011) Central Excise - Stay/Application for waiver of pre-deposit - Appellant engaged in body building of motor vehicles on chassis supplied by Principal Vehicle manufacturers - Denial of benefit of S.No.33A of Notification No. 6/06-CE in r/o motor vehicles manufactured and supplied to Principals - No case of Revenue that finished motor vehicles supplied by appellant to principal manufacturers were not classifiable under Chapter 8702 90 99 mentioned in S. No. 33A of impugned notification - No condition attached to S. No. 33A including any general condition in the preamble - Prima facie case in favour of appellant - Pre-deposit waived in case of demand under this head

Valuation - Demand of duty in terms of Rule 10A of Valuation Rules - No prima facie case in favour of appellant - Pre-deposit of Rs. 29,55,551/- ordered and balance of dues waived - Section 35F of Central Excise Act, 1944

2012-TIOL-677-CESTAT-MUM

M/s Chaitanya Ropes Pvt Ltd Vs CCE, Pune-III (Dated : January 31, 2012)

Duty on '‘plastic ropes' increased from 4% to 8% on 07.07.2009 - since as per rule 5 of CER, 2002, date for determination of duty is rate in force when such goods are removed from a "factory”, prima facie differential duty cannot be demanded on the clearances made to "consignment agent" prior to this date - Pre-deposit waived and Stay granted: CESTAT [para 5]

Also see analysis of the Order

2012-TIOL-676-CESTAT-MUM

Dhairya Polytex Ltd Vs CCE, Thane-I (Dated : March 12, 2012)

Yarn cleared without payment of duty in terms of Notfn. 6/2002-CE - there is no evidence produced by the applicants regarding the payment of duty on the yarn received by the applicants - prima facie not a fit case for total waiver - Pre-deposit ordered: CESTAT [para 7]

2012-TIOL-675-CESTAT-MUM

Hari Vishnu Packaging Ltd Vs CCE, Nagpur (Dated : March 15, 2012)

Conclusion of the Tribunal that the appellant is not interested in prosecuting the appeal must be reached on the facts of each case and not merely on account of absence of an appellant on a solitary occasion - if the appellant files on record his submissions in writing, the Tribunal must decide the appeal on merits on the basis of the said submissions - application for restoration of the appeal as well as the stay application allowed: CESTAT [paras 4, 5, 6, & 7] 2012-TIOL-672-CESTAT-MUM

Cable Corporation Of India Ltd Vs CCE, Mumbai-V (Dated : January 17, 2012)

Cenvat Credit taken on strength of challans and not Bills of Entry – fact of payment of duty on imported goods and their usage in manufacture of final products cleared on payment of duty not in dispute – pre-deposit waived and stay granted: CESTAT [para 4]

Also see analysis of the Order

2012-TIOL-671-CESTAT-BANG

M/s Karnataka Metal Company Vs CC, CE & ST, Hyderabad (Dated : January 20, 2012)

Central Excise - Allegation of issuing statutory invoices by appellant to another party without supply of goods to enable the party to avail CENVAT Credit - CENVAT Credit reversed with interest in one case - Considering the facts and circumstances, penalties imposed which were equivalent to CENVAT Credits availed, reduced to Rs. 30,000/-

Central Excise - Goods sold to one party and invoice issued to another party for availing CENVAT Credit - Conduct of the appellant attracts penalty under Rule 25 of CER, 2002 - Considering the facts and circumstances, penalty reduced to Rs. 12,000/-

2012-TIOL-670-CESTAT-BANG

Bansal Precision Forge Ltd Vs CCE, Bangalore (Dated : January 20, 2012)

Central Excise – Eligibility of CENVAT credit on inputs used for job work – Goods manufactured on job work basis cleared to principal manufacturer without payment of duty, who in turn processed the goods further and cleared final products on payment of duty – Issue no longer res integra in view of Larger Bench judgment in Sterlite Industries Ltd case - ( 2005-TIOL-305-CESTAT-MUM-LB ) – Denial of credit not sustainable – Impugned order set aside

2012-TIOL-669-CESTAT-MAD

CCE, Madurai Vs M/s Nalvetha Cast Steels Pvt Ltd (Dated : November 4, 2011)

Central Excise - CENVAT Credit on MS Angles, Channels and Plates etc used for structure on which overhead travelling crane is installed - The overhead travelling cranes are distinct products classified differently from the rails on which they move and the structures which support the rail - Credit is not admissible – Since the lower appellate authority has not examined the aspect of limitation, matter remanded. 2012-TIOL-664-CESTAT-MAD

CCE, LTU, Chennai Vs M/s Areva T & D India Ltd (Dated : March 27, 2012)

Central Excise appeals : these three appeals involving the same issue have been filed by the Department in contravention of the Board's instruction dated 17.8.11, which says that for filing appeal with the Tribunal the monetary limit of Rs.5 lakhs should be observed. In each of these cases, the amount involved is less than Rs. 5 lakhs. On this count alone, all the three appeals are required to be dismissed as not maintainable.

Export of inputs as such No reversal of Credit : the impugned goods which were initially received as inputs by the respondents have been exported under bond. The proceedings leading to these appeals have been initiated for recovering the duty on such clearances by way of reversal of the credit amount invoking Rule 3(5) of the CENVAT Credit Rules, 2004. The counsel for the respondents points out that such exports under bond are covered by para 8 of the Board's Circular dated 29.8.2000 as well as by paragraph 3.4 of the CBEC's Central Excise Manual. The lower appellate authority has also relied on these provisions while granting relief to the respondents. Hence, on merits also the appeals do not survive.

Also see analysis of the Order

2012-TIOL-663-CESTAT-MAD

S Benjamin Vs CCE, Chennai (Dated : January 30, 2012)

Central Excise – Condonation of delay of 603 days in filing the appeal - Just because the Tribunal is vested with the discretion to condone the delay, exercise of such discretion is not meant to grant premium to the default of delay when neither cogent nor believable reason exist - Condonation of delay of unexplained nature shall be premium to the lapse - There is no sufficient cause to condone the delay of 603 days made in the present case to seek appeal remedy.

2012-TIOL-659-CESTAT-BANG

M/s Sankhla Industries Unit III Vs CCE, Bangalore (Dated : January 2, 2012)

Central Excise - Denial of CENVAT credit on final products returned to factory - Consignments of PVC compound, PVC masterbatch and LDPE/HDPE compound manufactured and cleared returned by buyers as they did not conform to their specifications - Credit availed under Rule 16 of CER 2002 and after reprocessing, fresh goods cleared on payment of duty - In terms of Rule 16 as clarified in Chapter 18 of CBEC Supplementary Instructions, when returned goods are subjected to process amounting to manufacture, manufacturer shall pay duty at appropriate rate and for such payment, CENVAT credit of duty paid on returned goods could be utilized - Impugned orders not sustainable, set aside 2012-TIOL-655-CESTAT-MUM

Raj Oil Mills Ltd Vs CCE, Thane-II (Dated : February 3, 2012)

Classification of coconut oil packed and sold in the packages of the quantity of 200 ml and below - after 28.2.2005 coconut oil packed and sold in the packing of the capacity up to 500 ml are classifiable under Chapter 15 of the Central Excise Tariff and not under chapter 33 as contended by Revenue – strong prima facie case in favour in view of Tribunal decision in Aishwaria Indusries – Stay granted: CESTAT [para 8]

2012-TIOL-654-CESTAT-BANG

M/s Cochin Port Trust Vs CCE, Cochin (Dated : February 6, 2012)

Central Excise – ROM Application – Reference to wrong final order number of earlier order in subsequent Final Order passed by Tribunal in appellant's own case – Mistake apparent from record, allowed

2012-TIOL-649-CESTAT-BANG

CCE, Visakhapatnam Vs M/s Vamsadhara Paper Mills Ltd (Dated : December 30, 2011)

Central Excise – Denial of CENVAT credit on the ground that documents were defective – Appellate Commissioner allowed credit after holding that documents substantially met requirements of Rule 9 of CCR 2004 – Appellant-revenue ought to have segregated valid documents from allegedly defective ones to identify amount of CENVAT credit allegedly inadmissible because of defective documents - Appeal filed by department in a haphazard manner, liable for dismissal

2012-TIOL-648-CESTAT-BANG

CCE, Hyderabad Vs M/s Sumo Food Pvt Ltd (Dated : December 28, 2011)

Central Excise – Demand of duty on sugar syrup captively consumed in manufacture of biscuits – Appellate Commissioner directed lower authority to ascertain marketability of sugar syrup manufactured and used captively, in terms of Board's Circular No. 780 dated 12.03.2004 – Board Circular No. 780 does not clarify that sugar syrup is marketable - Commissioner (Appeals) has no power to remand the matter to original authority - Order of Commissioner (Appeals) liable to be set aside – Matter remanded to original authority to decide the matter afresh after adducing evidence related to marketability 2012-TIOL-644-CESTAT-AHM

M/s Balsara Hygiene Products Ltd Vs CCE, Vapi (Dated : September 20, 2011)

Central Excise – SSI Exemption – Clubbing of clearances - When it is a fact that the appellant had invested in the other unit and the said investment was rebated back in the year 1977 & 1978 itself goes to prove that the transactions between the two appellants were common business transaction on commercial terms – The three units were in existence prior to Notification No.175/86-CE and if it is so, then there is no reason for the said units to be considered as dummy units.

Clubbing on the ground that the entire products of the two units sold to the third unit -In an identical situation, the issue is squarely covered in favour of the assessee in earlier judgements wherein it is held that clubbing of two units cannot be made on the premise that the assessee sold/cleared their entire production to other units.

Tribunal has categorically held that mere fact of management, control or grant of interest free loan is not sufficient to hold the units as a dummy unit in the absence of any money flow back and/or profit sharing and total control on another unit – Impugned order set aside.

2012-TIOL-643-CESTAT-BANG

Silver Spark Apparel Ltd Vs CCE, Bangalore (Dated : February 15, 2012)

Central Excise – Stay/Application for waiver of pre-deposit – Demand of duty on packing materials procured duty free under Notification No. 43/2001-CE (NT) on the ground that benefit of this notification cannot be simultaneously with Customs Notification No.94/2004-Cus dated 10.09.2004 – No case by Revenue that packing materials were procured indigenously by appellant without following procedure laid down under Notification No.43/2001-CE(NT) – Notification 43/2001-CE(NT) does not refer to any Customs Notification – Prima facie, appellant allowed full waiver of pre- deposit – Stay granted

2012-TIOL-642-CESTAT-BANG

M/s Southern Lubrication (P) Ltd Vs CCE, Bangalore (Dated : January 2, 2012)

Central Excise – Eligibility of CENVAT Credit on raw materials supplied free of cost to job worker – Goods manufactured and cleared by job worker to appellant after inclusion of value of raw materials supplied free of cost – Manufacturer of final product entitled not only to avail credit on inputs supplied to job worker but also to take credit of duty paid on intermediate products received from job worker – Impugned order set aside

2012-TIOL-640-CESTAT-MUM Roofit Industries Ltd Vs CCE, Thane-I (Dated : April 13, 2012)

Waiver of pre-deposit covered u/s.35F of the CEA, 1944 does not fall under any of the enumerated categories in Sec.22 of the Sick Industrial Companies (Special Provisions) Act, 1985 - protection thereunder not available to assessee - Cenvat Credit availed without any duty paying documents - not a case for total waiver of dues - Pre-deposit ordered of Rs.43.62 lakhs: CESTAT [paras 6, 7]

Also see analysis of the Order

2012-TIOL-639-CESTAT-MAD

CCE, Pondicherry Vs M/s Shrushthi Plastics Pvt Ltd (Dated : January 30, 2012)

Central Excise – SSI exemption and CENVAT Credit – Simultaneous availment of full exemption under the SSI Scheme and availment of CENVAT Credit is not permissible.

2012-TIOL-635-CESTAT-MUM

Anil Printers Ltd Vs CCE, Nashik (Dated : April 17, 2012)

"ATM PIN mailer" is printed continuous computer stationery which is further used by the Bank in the dot-matrix printer to print the PIN number of their customers - Prima facie classifiable under Chapter 48 of the CETA, 1985 and not chapter 49 - not a fit case for granting total waiver of duty - keeping in view the facts and circumstances of the case and the financial hardship as pleaded, the applicants are directed to deposit an amount of Rs.15,00,000/- within eight weeks: CESTAT [para 6]

Also see analysis of the Order

2012-TIOL-634-CESTAT-BANG

CC & CE, Visakhapatnam Vs M/s Anam Electrical Manufacturing Co (Dated :January 13, 2012)

Central Excise – Liability to pay interest on differential duty paid – It is settled law that an assessee is required to pay interest under s. 11AB on an amount of differential duty paid under s. 11A (2B) – Where the liability is a continuing liability, the statute may not prescribe a period of limitation – If the tax is not paid on or before the due date, interest thereon will accrue to the revenue and department is entitled to demand interest on an amount of duty at any time till such interest is paid by the assessee

National Litigation Policy – Whether where amount involved is less than Rs. 1 lakh appeal maintainable – Board Circular dated 01.11.2010 not applicable to the appeal filed before 1.11.2010 – Circular also not applicable to a case involving substantial question of law

2012-TIOL-630-CESTAT-KOL

CCE, CC & ST, Bhubaneswar Vs M/s Neepaz Metaliks Pvt Ltd (Dated : February 8, 2012)

Central Excise - Valuation - Job-worker - Non-inclusion of certain costs - Revenue contention that duty element, crushing cost and inward freight are not included in the assessable value.

HELD - MODVAT credit availed on the iron ore supplied by the principal will not form part of assessable value.Crushing charges are included in the cost of manufacture. Even after inclusion of inward freight charges, the assessable value on which duty has been discharged is more. Appeal devoid of merits. (Para 6 & 7)

2012-TIOL-628-CESTAT-MAD

M/s Beacon Weir Ltd Vs CCE, Chennai (Dated : February 24, 2012)

Central Excise - Refund – Credit notes - Unjust enrichment - Appellants had paid duty at the rate of 16% instead of 8% - Buyers paid duty only at 8% and the appellants issued credit notes – Appellants cannot be held to have unjustly enriched themselves - Refund is admissible subject to verification that the buyers have not taken CENVAT Credit at 16% rate.

2012-TIOL-621-CESTAT-MUM

CC & CE, Nagpur Vs P C Pole Factory (Dated : January 31, 2012)

Clearance of P.C poles to Maharashtra State Electricity Board under contract – since assessment was not made on provisional basis reduction of price at a later date could not be made foundation for seeking refund – order of Commissioner (A) granting refund set aside and Revenue appeal allowed: CESTAT [paras 5, 6 & 7]

2012-TIOL-620-CESTAT-MUM

M/s ACC Ltd Vs CCE & ST, LTU, Mumbai (Dated : March 22, 2012)

CENVAT Credit is available on Welding Electrodes used in repair and maintenance of plant and machinery – issue has been settled in favour of the assessee – prima facie strong case in favour – Pre-deposit waived and stay granted: CESTAT 2012-TIOL-615-CESTAT-MUM

M/s AB Maruti India Pvt Ltd Vs CCE, Kolhapur (Dated : February 21, 2012)

Multigrain Bread Concentrate is a mixed cereal in different proportion with additives of flour improver – it is produced in a usable condition and the additives have been used for producing bread by Bakery industry – prima facie force in the applicant's contention that Multigrain Bread Concentrate cannot be considered as flour preparation and hence is correctly classifiable in Chapter 11 as against Revenue's proposal of Chapter 19 – Pre-deposit waived and stay granted: CESTAT [paras 6, 7]

2012-TIOL-614-CESTAT-MUM

Brom Chem (India) Pvt Ltd Vs CCE, Belapur (Dated : February 20, 2012)

If the activity of an assessee does not amount to manufacture, there can be no question of levy of duty and if duty is levied, Cenvat credit cannot be denied by holding that there is no manufacture – strong case for waiver of pre-deposit – Stay petition allowed: CESTAT

2012-TIOL-610-CESTAT-MAD

Aparna Paper Processing Industry (P) Ltd Vs CCE, Puducherry (Dated : December 13, 2011)

Central Excise – Demand of reversal of CENVAT Credit on the cost of cylinder charges and input poly film collected from the suppliers - In view of the fact that the appellants have put the impugned cylinders and poly films and paper to use in the process of manufacture and the scrap generated in respect of defective cylinders and poly films and paper have been cleared as 'waste' paying appropriate duty, the condition for availing CENVAT credit has been satisfied and hence there is warrant in law to reverse the credit in this regard.

2012-TIOL-609-CESTAT-MAD

M/s Accel Transmatic Ltd Vs CCE, Chennai (Dated : December 13, 2011)

Central Excise – Refund of excess duty paid in case of goods transferred to Depots - Commissioner (Appeals) order setting aside the order granting refund on the ground that the appellants had not opted for provisional assessment is not proper - Original authority had rightly sanctioned the refund claimed by the appellants within time limit prescribed under the law. 2012-TIOL-605-CESTAT-KOL

CCE, Patna Vs M/s JMD Alloys Ltd (Dated : February 3, 2012)

Central Excise - Clandestine clearances - Evidence - Contradictory statements - The three statements of the drivers are contradictory and no corroborative evidence produced. No evidence produced by the department to establish clandestine clearance. Demand not sustainable. (Para 6)

2012-TIOL-604-CESTAT-KOL

CCE & ST, Patna Vs IOC Ltd (Dated : December 21, 2011)

Central Excise - Refund - Goods cleared for export - Duty paid erroneously - Maintainability of refund claim - In case of export of duty paid goods, it is covered under rebate of duty in terms of Rule 18 ibid, and not under refund of duty. It is a settled law that a question of law can be taken up at any stage and the maintainability of refund involves question of law. Since the maintainability of the refund has not been dealt with at the stage of Commissioner (Appeals), the case is remanded to the Commissioner (Appeals) to decide the maintainability of the refund, keeping in view the proposition of law that taxes are not exported. (Para 7)

2012-TIOL-602-CESTAT-KOL

Bilati (Orissa) Ltd Vs CCE, BBSR-II (Dated : December 27, 2011)

Central Excise - 100% EOU - DTA Clearances - NFE - Benefit of exemption notification - Interpretation of Notification - It is settled principal that notification granting exemption has to be strictly construed. The assessee did not fulfill the condition of the notification in as much as Para 9.9 (b) of the EXIM policy is not satisfied i.e., they did not achieve (+) NFE. Benefit of exemption notification denied. (Para 8)

2012-TIOL-601-CESTAT-AHM

M/s Fact Paper Mill Ltd Vs CCE, Bhavnagar (Dated : February 2, 2012)

Central Excise – Demand of duty on clandestine clearances – Evidences - Retraction of statements recorded - The retraction was filed with the adjudicating authority at the time of personal hearing and in reply to the show cause notice - Adjudicating authority, instead of rebutting the said retraction has simply kept quiet on the point retraction, which indicates that the adjudicating authority did not find any answer to the retractions made by the directors of the statements.

Production capacity – Quantity of production sought to be allegedly manufactured and the clearance recorded in the books of accounts is beyond the capacity of production as certified by the Chartered Engineer - If the production and installed capacity of the appellant is only 20 MTPD, then the calculations arrived at by the department does not seem to match that the amount of production sought to be allegedly clandestinely removed.

Cross Examination - The appellants had sought cross examination of the six buyers and the suppliers and the transporters which was not acceded to and nor there is any reason given by the adjudicating authority for denial of cross examination. In the absence of any reason for denial any of cross examination and on the face of presence of affidavits filed by the persons in retracting their statement, it is to be held that retracted statement cannot be relied upon for establishing charge of clandestine manufacture and clearances against the assessee.

2012-TIOL-598-CESTAT-MUM

M/s Vako Seals Pvt Ltd Vs CCE, Mumbai-V (Dated : February 14, 2012)

Valuation - Job worker receiving machine bodies from principal for rubber bonding – duty paid on the cost of rubber bonding and labour charges is prima facie proper – no cause for including the value of machine bodies – Pre-deposit waived and stay granted: CESTAT [para 5]

Also see analysis of the Order

2012-TIOL-594-CESTAT-KOL

M/s Balaji Electro Steels Ltd Vs CCE, Ranchi (Dated : February 9, 2012)

Central Excise - Compound Levy Scheme - Re-determination of capacity - Effective date - The deeming effect of the re-fixation of annual capacity determination based on changed parameters should be one month from the date of initial intimation by the assessee. (Para 5)

2012-TIOL-590-CESTAT-MUM

Sandoz Pvt Ltd Vs CCE, Belapur (Dated : March 16, 2012)

Refund under Rule 5 of the CCR, 2004 r/w notification 5/2006-CE(NT) – since under the statute, power of granting refund are with the Assistant/Deputy Commissioner of Central Excise, passing of refund orders by Additional Commissioner has rightly been held as unsustainable – Matter remanded to AC/DC: CESTAT [ para 5 ]

Also see analysis of the Order

2012-TIOL-589-CESTAT-DEL M/s Hindustan Gum & Chemicals Ltd Vs CCE, Ahmedabad (Dated : January 31, 2012)

Central Excise – Classification - Treated Tamarind Kernel Powder – Whether classifiable under CETH 11.01 as claimed by the assessee or under CETH 13.01 as held by the department - Between the two headings 13.01 is more suitable than 11.01 for the reason that a product made through chemical process cannot be considered to be akin to other products mentioned in 11.01 where no manufacturing process is involved - The impugned goods are manufactured goods and it is rightly classifiable under sub-Heading 1301.10 of the Central Excise tariff.

Manufacture - Chemical process carried out gives the product a different molecular structure and makes it suitable for a different use - Any person wanting to use Tamarind Powder as thickener in textile industry will not buy and use such powder unless it is subjected to the processes that the appellants are carrying out - The processes constitute a manufacturing process.

Limitation - The matter relates to a period where the system of filing of classification list in advance and seeking its approval by the department was in vogue and the officers of the department were expected to visit factories and conduct necessary verification for approval of classification list and even other-wise - Demands invoking the extended period of time limit are not maintainable - The prayer for granting benefit of cum-duty realization and benefit of Modvat credit of duty paid on inputs also are allowed.

2012-TIOL-587-CESTAT-DEL

M/s Meenakshi Associates Vs CCE, Noida (Dated : January 25, 2012)

Central Excise - Delayed payment of duty - Bar on utilisation of CENVAT credit - Penalty - Interest - Rule 8(3A) puts restriction on utilization of credit and not on taking of credit of duty paid on raw materials used. Rule 8(3A) prescribes that so long as the assessee is in default for any previous month payment through CENVAT credit is not a proper discharge of duty liability. This prohibition gets lifted the moment the default is made good along with appropriate interest on defaulted amount and normal situation is restored. So payments made through CENVAT credit during the defaulting period also becomes good payment once the default is made good by paying the defaulted amount along with interest - Default in payment of duty is different from short payment of duty or interest - Penalty under section 11AC will not apply as the assessee himself declares the default while filing the return and there is no suppression in the matter. The only penalty that can arise is under Rule 27. Duty demanded is set aside. Penalty reduced. Interest payable. (Para 14, 16 & 17)

Also see analysis of the Order

2012-TIOL-586-CESTAT-BANG

M/s Gammon India Ltd Vs CCE, Hyderabad(Dated : December 19, 2011)

Central Excise – Duty liability on pre-stressed concrete segments manufactured for construction of flyovers – Finding given by original authority that impugned goods were manufactured at site – Claim for eligibility of Notification No. 1/2011-CE(NT) to be considered by adjudicating authority as the Notification ibid was not in existence when the impugned order was passed – Impugned order set aside

2012-TIOL-585-CESTAT-BANG

M/s KMS Coach Builders Pvt Ltd Vs CCE, Bangalore (Dated : November 23, 2011)

Central Excise – Stay/Application for waiver of pre-deposit – Motor vehicles manufactured by building bodies on duty paid chassis supplied by Chassis manufacturer on A/c of KSRTC – Duty demand on motor vehicles cleared to KSRTC and denial of benefit of Notification No. 6/06-CE – CENVAT Credit of duty paid on chassis not availed whereas credit on other inputs used in body building availed but reversed subsequently – Prima facie, appellant entitled to benefit of notification inasmuch as the entire credit on inputs used in body building reversed by them before issuance of SCN – Full waiver of pre-deposit ordered and stay granted

2012-TIOL-581-CESTAT-MUM

MSRTCS Central Workshop Vs CCE, Aurangabad & Pune (Dated : April 10, 2012)

There is no evidence adduced by Revenue to show that the components are bought and sold in the market as commodity - finding that merely because goods are not bought and sold in the market does not make them non-marketable cannot be sustained - components of bus bodies are not marketable commodity and hence not excisable - Appeals allowed: CESTAT [para 17, 18]

Also see analysis of the Order

2012-TIOL-580-CESTAT-BANG

CCE, Mangalore Vs M/s Prakash Beedies Pvt Ltd (Dated : December 19, 2011)

Central Excise – Classification of biris – Labels printed by job workers who undertook the job with the aid of machines – Biris classifiable under 2404.31 even if labels/wrappers were manufactured with the aid of machines in job worker's premises – Board Circular No. 840 dated 06/12/2006 applies

2012-TIOL-574-CESTAT-MUM

CCE, Mumbai-III Vs Crompton Greaves Ltd (Dated : February 29, 2012)

Goods supplied against International Competitive Bidding - Prima facie, benefit of Notification 6/2006-CE cannot be denied by invoking the provisions of the EXIM policy - Appellant had informed the department before effecting clearances - Time-bar contention prima facie merits acceptance - Pre-deposit of Rs.3.95 Crores waived and stay granted: CESTAT [para 6]

Also see analysis of the Order

2012-TIOL-573-CESTAT-BANG

M/s Binjusaria Ispat Pvt Ltd Vs CCE, Hyderabad (Dated : December 20, 2011)

Central Excise – Eligibility of CENVAT Credit on iron and steel items used for fabrication of structural support for capital goods – Appellate Commissioner dismissed appeal for non-compliance of order of pre-deposit – Pre-deposit of Rs. 5 lakhs ordered and appellate commissioner directed to hear and dispose of the case without insisting on further deposit – No views expressed on merits or on limitation

2012-TIOL-572-CESTAT-BANG

M/s Grindwell Norton Ltd Vs CCE, Bangalore (Dated : December 2, 2011)

Central Excise - Stay/Application for waiver of pre-deposit – Denial of CENVAT credit on CHA services – CHA service availed for export of goods and port to be regarded as place of removal – Prima facie case made out for waiver of pre-deposit in r/o demand of CENVAT credit on CHA service

Denial of CENVAT Credit on inputs written off for IT purposes – One of the statutory requirement for availing credit on inputs is that they should be used in or in relation to manufacture of final products - Mere physical presence of inputs in stock not enough for availment of CENVAT credit – After lapse of 4 1/2 years no evidence forthcoming on usage of inputs in or in relation to manufacture of final products – No prima facie case made out for waiver of pre-deposit – Pre-deposit of Rs. 3.78 lakhs ordered and balance dues waived – Section 35F of Central Excise Act, 1944 read with Rule 2(k) of CENVAT Credit Rules, 2004

2012-TIOL-570-CESTAT-MAD

Allianz Bio Sciences Pvt Ltd Vs CCE, Puducherry (Dated : May 1, 2012)

Central Excise – Valuation - Physician Sample – Transaction Value for samples manufactured on job work: when physician samples manufactured and cleared to brand owners/ buyers on principal to principal basis for a consideration, which are further distributed by the buyer free of cost to physicians/doctors, the same is required to be assessed to duty on the transaction values. - para 5

Pro rata value for free samples: As regards the physician samples manufactured by the appellants on their own behalf and distributed free of cost, the issue is no more open for arguments inasmuch as the Larger Bench of the Tribunal in the case of Cadila Pharmaceuticals Ltd. Vs CCE Ahmedabad - 2008-TIOL-1668-CESTAT-AHM-LB has held that valuation of such physician samples is required to be made on the basis of pro rata value of the regular pack of the comparable goods in terms of the provisions of Rule 4. - para 6

Also see analysis of the Order

2012-TIOL-569-CESTAT-MAD

M/s Sri Balaji Cylinders Pvt Ltd Vs CCE, Chennai (Dated : March 7, 2012)

Central Excise – Valuation – Supply of valves by the oil companies to the cylinders manufactures – Non-inclusion of transportation charges of valves – Appellants were not aware of the method of calculation of value of the valve, but honoured the demand and paid the same – Penalty under Section11 AC is not imposable as the appellants had paid duty as per the price fixed by the oil companies – Penalty under Rule 25 of the Central Excise Rules, 2002 is upheld.

2012-TIOL-564-CESTAT-BANG

M/s Kailash Transformers Pvt Ltd Vs CCE, Belgaum (Dated : December 9, 2011)

Central Excise – Stay/Applications for waiver of pre-deposit – Manufacture and supply of transformers to electricity board with price variation clauses – Interest liability on differential amounts collected through supplementary invoices stands settled by Supreme Court in SKF India Ltd - 2009-TIOL-82-SC-CX – Pre-deposit of Rs. 2 lakhs ordered – Section 35F of Central Excise Act, 1944

2012-TIOL-557-CESTAT-MUM

Precision Punches & Dies (Unit-III) Vs CCE, Thane-II (Dated : February 27, 2012)

For mere storage of imported goods/excised goods, the appellants cannot claim Central Excise registration under Rule 9 of the Central Excise Rules, 2002 - duty paid raw materials can be considered as only “excised goods” and they are not “excisable goods” on which duty liability has to be discharged – registration certificate correctly revoked: CESTAT [ para 7 ]

Also see analysis of the Order

2012-TIOL-556-CESTAT-BANG M/s Rashtriya Ispat Nigam Ltd Vs CCE & CC, Visakhapatnam (Dated : November 23, 2011)

Central Excise – Stay/Application for waiver of pre-deposit – Demand of duty on iron and steel items manufactured in the factory and captively consumed – Appellants cleared identical items to independent buyers on payment of duty determined on the basis of transaction value – Assessable value of goods captively consumed determined by Revenue on the basis of price of identical goods cleared to independent buyers – Appellant claimed Rule 8 of Valuation Rules to be made applicable to goods captively consumed – Provisions of Rule 8 of Valuation Rules will not apply when part of production cleared to independent buyers – Larger Bench decision in Ispat Industries Ltd - 2007-TIOL-245-CESTAT-MUM-LB followed – Pre-deposit of entire duty demand amounting to Rs. 95.94 lakhs ordered – Interest and penalty amounts waived subject to compliance of order of pre-deposit – Section 35F of Central Excise Act, 1944

2012-TIOL-554-CESTAT-AHM

M/s Sterlite Opticals Technologies Ltd Vs CCE, Vapi (Dated : January 3, 2012)

Central Excise – Manufacture - Imported Modems supplied to BSNL by treating the post import activities as amounting to manufacture and paying Central Excise duty – Duty paid on the Modems supplied by availing the CENVAT Credit of Additional duty of customs and SAD – Appellants reversed the CENVAT Credit lying in balance after payment of duty on department's objection to payment of duty – Show Cause Notice issued by extending the period of limitation is held as time barred as that there was a bonafide belief on the part of appellant that they were manufacturing a product which requires clearance on payment of Central Excise duty and the question of imposing penalty under Section 11 AC does not arise.

Also see analysis of the Order

2012-TIOL-553-CESTAT-MUM

Indian Extrusions Vs CCE, Mumbai (Dated : March 6, 2012)

Plastic bottles manufactured from raw materials supplied by M/s Marico Ltd. and cleared on payment of duty to M/s Aero Pharma for packing hair oil under brand name – Assessable value correctly arrived on the basis of cost of raw materials plus job charges – no cause for applying rule 8 or rule 10A of the Valuation Rules, 2000 – appeal allowed with consequential relief: CESTAT [para 5.4, 5.5]

Also see analysis of the Order

2012-TIOL-552-CESTAT-BANG

M/s Agi Glaspac Vs CCE, Hyderabad (Dated : November 28 2011) Central Excise – Stay/Application for waiver of pre-deposit – Eligibility of CENVAT credit in r/o MS angles, sections, plates, channels, rounds, beams, HR coils/sheets used for installation and fabricating structural support to machinery – Prima facie, in r/o MS channels, angles, beams etc used by appellant for fabrication of structural support to certain items of machinery, issue covered by Tribunal Larger Bench decision in Vandana Global Ltd case – In r/o items used for fabrication of machinery, appellants made out a prima facie case in their favour – Plea of financial hardships considered and appellant directed to pre-deposit Rs. 40 lakhs – Section 35F of Central Excise Act, 1944 read with Rule 2(a) of CENVAT Credit Rules, 2004

2012-TIOL-544-CESTAT-BANG

M/s RCC (Sales) Pvt Ltd Vs CCE, Hyderabad (Dated : December 2, 2011)

Central Excise – Stay/Application for waiver of pre-deposit – Goods supplied to sister concern for job work and duty paid in terms of CAS4 valuation on the basis of data available for previous period – Differential duty paid after reworking assessable value based on appropriate data – Liability to pay interest on differential duty – Prima facie no case made out by appellant in view of Supreme Court judgment in SKF India Ltd case – Pre-deposit of entire amount of interest ordered – Section 35F of Central Excise Act, 1944

2012-TIOL-541-CESTAT-KOL

Bharat Petroleum Corporation Ltd Vs CCE & ST, Patna (Dated : February 21, 2012)

Central Excise - Manufacture - blending of MS with MFA does not result into the manufacture of a new product, even if the emerged product is branded as 'speed' and marketed after some value addition: the process of mixing duty-paid MS, with MFA does not result into a new produce and hence the process of blending/mixing of MS with MFA is not a process of 'manufacture' as defined under Section 2(f) of the Central Excise Act, 1944. No force in the arguments advanced by the Revenue that the resultant product namely, 'speed' which emerges after mixing MS with MFA, is liable to duty as the process of mixing amounts to manufacture within the definition of manufacture under Sec.2 ( f) of CEA , 1944.

Also see analysis of the Order

2012-TIOL-540-CESTAT-DEL

CCE, Lucknow Vs M/s Shyam Traders (Dated : January 31, 2012)

Central Excise – Duty demand on Shortage of raw materials found during the course of stock verification by the officers - To confirm the demand based upon the shortage of only one raw material which is not main raw material, cannot be sustained, especially in the absence of evidence showing procurement of other raw materials, required for manufacture of final products (Para 8). 2012-TIOL-537-CESTAT-MUM

M/s Kent Introl Pvt Ltd Vs CCE, Nasik (Dated : March 12, 2012)

Notfn. 6/2006-CE - Goods supplied against International Competitive Bidding - once the appellant is able to establish that the goods similar to those manufactured in India when imported into India are exempt under Customs Tariff Act, 1975, such goods manufactured in India would be entitled to avail the benefit under the notification - nothing in the notification to suggest that the conditions attached to Notfn. 21/2002- Cus have been made specifically applicable – strong prima facie case in favour - Stay granted: CESTAT [para 7]

Also see analysis of the Order

2012-TIOL-534-CESTAT-DEL

A K Alloys Vs CCE, Ludhiana (Dated : October 7, 2011)

Central Excise - Clandestine Clearances - Evidentiary value of statement - Principles of natural justice - Evidence - Demand - The statement has not been recorded in a manner known to law and no cogent evidence had been brought to record to prove output cleared clandestinely. No cogent evidence is on record to show either suppression of purchase of input or clandestine removal of goods in fool proof manner known to law. The demand has no legs to stand. Appeals allowed. (Para 6)

2012-TIOL-528-CESTAT-MAD

Nellai Concrete Products And Co P Ltd Vs CCE, Tirunelveli (Dated : October 12, 2011)

Central Excise - Valuation - Sleeper inserts supplied free by the Railways to the appellant job worker - CENVAT Credit on such inserts is not includable in the value of the goods - Cost of transportation of the inserts to the appellant's factory is includable in the assessable value.

2012-TIOL-526-CESTAT-MUM

Pradeep Alias Ashok Jain Vs CCE, Mumbai-I (Dated : October 21, 2011)

Central Excise – Manufacture of cars from imported chassis and parts – Whether goods are liable for confiscation under Rule 173 Q(1)(c) as held by Member (T) or goods are not liable for confiscation as held by the Member (J) in view of the absence of conditions of Section 11AC – Reference to the third Member.

Third Member - Section 11AC was not in existence at the time of this manufacturing activity undertaken by the appellant. Therefore, the absence of the condition of Section 11AC will not have any effect on the confiscation of the goods in this case - The assembly of car from the component parts amounts to manufacture under Section 2(f) of the Central Excise of the Act and excise duty is liable to be charged on such assembly. There is no dispute on this point that the activity of assembling of the car by the appellant amounts to manufacture. Once a manufacturing activity is undertaken for manufacture of excisable goods, the manufacturer is required to obtain a licence from the Central Excise department under Rule 174 of the Central Excise Rules and if any manufacturing activity is undertaken without a licence from the department, there is a contravention of the Central Excise Rules and the excisable goods so manufactured are liable for confiscation under Ruled 173Q(1)(c).

By Majority – Order confiscating the goods and imposing fine and penalty is upheld.

Also see analysis of the Order

2012-TIOL-525-CESTAT-DEL

CEC-Soma JV Vs CCE, Delhi-I (Dated : March 4, 2011)

Central Excise – Excisability – Pre-fabricated components of different segments designed and constructed at specified yard and transferred to the site to be used in elevated viaducts or for manufacture of rings for tunnel, launching girders and trusses - In view of Notification No.1/2011-C.E, the controversy no more subsist and stands concluded and consequently the proceedings sought to be initiated against the assessees are rendered infructuous (Para 3 & 12).

2012-TIOL-524-CESTAT-AHM

M/s Modern Denim Ltd Vs CCE, Ahmedabad-II(Dated : November 24, 2011)

Central Excise - 100% EOU - Wrong assessments - Amount deposited during investigation - Show cause notice set aside on ground of limitation - Amount deposited appropriated - Sustainability of - The lower adjudicating authority has clearly held that show cause notice is without any authority of law and inappropriate and illegal and the demands and other proposed cause of actions are barred by limitation. Hence, any amount deposited by the assessee during the pendency of the investigation cannot be said to have been paid by him voluntarily towards the duty that is calculated for the relevant period in the show cause notice. Appeal allowed with consequential relief. (Para 6)

2012-TIOL-519-CESTAT-MUM

Hercules Hoists Ltd Vs CCE, Mumbai-III (Dated : March 5, 2012) Notification 3/2004-CE – Machinery cleared for setting up of Water Supply plants – notification stipulates a specific authority for issue of certificate viz. Collector/Deputy Commissioner/District Magistrate of the District in which project is located – certificate from Chief Engineer, Kerala Water authority not acceptable for granting exemption – since duty involved is less than Rs.5 lakhs and the appellant has already made a payment of Rs.5.90 lakhs at the time of investigation, waiver granted from pre- deposit of balance dues: CESTAT [ para 5 ]

Benefit of notfn 63/95-CE would be available as notification does not lay down any condition with regard to production of end use certificate from the Ministry of Defence – supplies made to M/s BEML which has been used in the manufacture and further supply to defence is prima facie entitled to exemption. [para 5]

Clearance under exemption notification 6/2006-CE for mega power project – as the appellant has supplied goods for 4 x 250 MW (1000 MW) power plant at Raigad and produced project authority certificate in respect of such supplies prima facie they are eligible for exemption. [para 5]

Also see analysis of the Order

2012-TIOL-518-CESTAT-DEL

M/s Escorts Construction Equipment Vs CCE, Delhi - IV (Dated : February 1, 2012)

Central Excise – Stay/Dispensation of pre-deposit – CENVAT Credit of service tax paid on after sale service provided by the dealers in respect of Mobile Cranes and Loaders sold by the appellants - Prima facie, denial of credit is not correct as there are a number of services mentioned in the inclusive portion of the definition of 'input service' which cannot be linked with the removal of the goods - Moreover, it has not been denied by the Department that the cost of providing free after sale services i.e. warranty charges are part of the price of the goods on which central excise duty had been paid – Pre-deposit waived.

2012-TIOL-517-CESTAT-BANG

M/s S M Perfumers Pvt Ltd Vs CCE, Bangalore (Dated : October 5, 2011)

Central Excise – Stay/Application for waiver of pre-deposit – Manufacture of pan masala/gutka under compounded levy scheme – Duty for the month of July 2008 ought to have been paid by 15.07.2008 paid on 05.08.2008 – Delay in payment of duty for the months of August 2008 to October 2008 and January 2009 to February 2009 – Delay in payment of duty for the months of April 2009 and September 2009 – Duty demands confirmed with interest and levy of penalty equivalent to duty – As compounded levy scheme came into operation with effect from 1 st July 2008 and there being no previous month for operation under the compound levy scheme, demand of differential duty for July 2008 prima facie, not sustainable – There being no allegation/finding of mis-declaration on number of machines or manufacture of packages with higher RSP, demands relating to the period August 2008, September 2008, October 2008 and January 2009 prima facie barred by limitation – Demand relating to the period from April 2009 to September 2009 within normal period of limitation – Applicability of Rules 9(6) and 9(7) of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 to the facts of the present case arguable and to be gone into detail at the time of final hearing – Considering the entire facts and circumstances of the case, pre-deposit of Rs. 1 crore ordered – Section 35F of Central Excise Act, 1944

2012-TIOL-514-CESTAT-MUM

M/s JSW Steel Ltd Vs CCE, Thane-II (Dated : March 2, 2012)

Cenvat Credit – Rule 6(4) of CCR, 2004 - Capital goods used in the captive power plant and the electricity so generated is used in manufacture of final products cleared on payment of duty and certain quantity of electricity so generated is sold outside factory – since capital goods not used "exclusively" for manufacture of "exempted" electricity, prima facie strong case in favour – pre-deposit waived and Stay granted: CESTAT [ para 7, 8 ]

Also see analysis of the Order

2012-TIOL-513-CESTAT-BANG

Kunnath Textiles Vs CC & CCE, Cochin (Dated : November 30, 2011)

Central Excise - Penalty under Rule 25 of Central Excise Rules, 2002 – Duty demanded by denial of SSI exemption notification - Substantive dispute between department and assessee was with regard to whether value of intermediate product was liable to be included for computing gross value of clearances under Notification No. 8/2003-CE - Assessee shall not be penalized in a case where demand of duty depended on interpretation of conditions of an exemption notification – Levy of penalty set aside - Rule 25 of Central Excise Rules, 2002

2012-TIOL-512-CESTAT-BANG

B G Shirke Technology P Ltd Vs CCE, Pune-III (Dated : December 9, 2011)

Central Excise - Eligibility of CENVAT Credit on MS angles, channels, joist, beams, plates etc as capital goods - Lower authority's order denying credit set aside by Appellate Commissioner resulting in Revenue appeal - Whether impugned items are capital goods or otherwise depends upon actual use of the items, which was not examined by lower authorities as no evidence was produced by assessee - Matter remanded to original authority for fresh consideration of issues after granting reasonable opportunity to hear the assessee - Assessee at liberty to produce any evidence in r/o their claim of usage of items - Order of Appellate Commissioner as well as Original authority set aside

2012-TIOL-508-CESTAT-MUM Kinetic Engineering Ltd Vs CCE, Pune (Dated : August 25, 2011)

Section 4 of the CEA, 1944 - certainty in taxation is the fundamental canon of taxation - If tax liability is made dependent on a future event, such a law cannot be enforced or implemented in a fair and reasonable way - Once the assessable value is determined taking into account the various abatements permissible as provided for in the law, the question of re-determination of assessable value on account of changes that happened subsequent to the clearances, whether on account of changes in the law or otherwise will not be a cause for re-determination of assessable value - payment of Net Present Value (NPV) of deferred taxes under the Package Scheme of Incentives - difference between sales tax collected from the customers and the sales tax paid to the state authorities at NPV cannot be treated as an additional consideration – Appeal allowed with consequential relief: CESTAT [paras 5.7, 5.9, 5.10 & 5.11]

Also see analysis of the Order

2012-TIOL-507-CESTAT-BANG

CCE, Belgaum Vs M/s Rajashree Cements (Dated : September 16, 2011)

Central Excise – CENVAT Credit wrongly availed reversed resulting in demand of interest and levy of equivalent penalty under Rule 15(4) of CENVAT Credit Rules, 2004 – Interest liable to be paid in view of Apex Court decision in Ind-Swift Laboratories Ltd - 2011-TIOL-21-SC-CX –SCN proposed levy of penalty for ‘wrong availment of credit' under Rule 15 which is governed by sub-rule (3) thereof while original authority invoked sub-rule(4) to levy equivalent penalty – Appellate authority had not adverted to this issue and hence order to this extent not sustainable, levy of penalty under Rule 15(4) set aside – As there is wrong availment of credit, penalty of Rs. 2000 imposed under Rule 15(3) of CCR, 2004 – Rules 14 and 15 of CENVAT Credit Rules, 2004

2012-TIOL-506-CESTAT-BANG

M/s Sri Kumar Agencies Vs CCE (A), Bangalore (Dated : October 11, 2011)

Central Excise – Manufacture/Classification of ‘printed gray wrappers' and ‘printed agarbathi labels' – Activity undertaken involves printing of requisite specific details on jumbo rolls of polyethylene coated paper, PVC films etc supplied by the principal, cutting/slitting of jumbo rolls into required sizes and supplying them to customers of the principal – Printed matter includes details of ‘brand name', ‘brand owner's name', ‘logo', ‘name and address of product manufacturer', ‘contents of package', ‘nature of package' etc

Manufacture – Test of manufacture to distinguish unprinted paper and printed paper – When printed gray wrappers, in addition to serving as wrapper also serves the purpose of identifying and promoting specific products, it is incorrect to say that unprinted paper and printed gray wrappers are one and the same – Nature and extent of printing imparts new characteristics to unprinted paper, which brings about a change in nomenclature of printed paper, serves an additional and new purpose and it leads to emergence of ‘products' which satisfies the test of manufacture – When printing is incidental to the primary use, the end product continues to fall under Chapter 48 and when printing is essential and serve a definite purpose then the printed product falls under Chapter 49 – Printing undertaken on paper/paper board, cannot be considered as incidental to the purpose of packing as it is essential and serves a definite purpose – Distinct identity and end use imparted by sophisticated printing of materials in different colors and materials indicating information sought to be conveyed to customers makes the resultant products to be treated as products of printing industry, classifiable under Chapter 4901.90

Manufacture – Test of manufacture to distinguish printed paper/PVC films used as agarbathi labels – Activity of printing undertaken on paper/PVC films for the purpose of packing agarbathis pertains to details of brand name, name of manufacturer, MRP etc in four different languages – Resultant products are labels different from paper/PVC films and serve a purpose different from that of paper/PVC films – Activity of printing undertaken being essential and not incidental and serves a definite purpose, resulting in emergence of products with new characteristics and usage, it amounts to manufacture – As the activity involves sophisticated printing which gives essential characteristics and new usage to paper/PVC films, resultant products deserve classification as products of printing industry, classifiable under Chapter 4901.90

Conclusion – While upholding contention of department that the activities undertaken would amount to manufacture, alternative submissions by assessees that the products should be treated as products of printing industry and classifiable under Chapter 4901.90 accepted – Demand of duty, interest and levy of penalties set aside on merits – Considering the nature of dispute involving in depth interpretation of competing Tariff entries, invocation of extended period of limitation not justified in such cases, though demand set aside on merits

2012-TIOL-505-CESTAT-MUM

Finolex Cables Ltd Vs CCE, Pune (Dated : January 30, 2012)

Since as per the CCR, 2004 excise duty is payable from Cenvat Credit account, pre- deposit of duty amount by way of debit in Cenvat Account is sufficient compliance with the provisions of Section 35F of the CEA, 1944 – Matter remanded as Commr(A) has not decided appeal on merits: CESTAT [ para 5,6]

Also see analysis of the Order

2012-TIOL-503-CESTAT-MUM

M/s Bulk Cement Corporation (India) Ltd Vs CCE, Belapur(Dated : March 28, 2012)

Wagons are classifiable under chapter 86 of the CETA, 1985 and cannot be considered as capital goods or as components, spares and accessories of the specified capital goods - applicant has not made out a case for waiver of duty - since no financial hardship is pleaded applicant is directed to make pre-deposit of Rs.1.09 Crores: CESTAT [para 6]

Also see analysis of the Order 2012-TIOL-498-CESTAT-MUM

Techcoat (Nashik) Pvt Ltd Vs CCE, Nashik (Dated : January 6, 2012)

Lacquered Metalised Polyester film is cleared to job worker for conversion to Zari which is finally cleared from factory under exemption – appellant paying 8% price of exempted product/reversing credit contained in inputs – no cause for payment of duty on Lacquered metalized Polyester film when cleared for job work – facts in knowledge of department – Demand time barred – Appeal allowed: CESTAT [ para 6, 7, 8 ]

Also see analysis of the Order

2012-TIOL-497-CESTAT-DEL

M/s J R Organic Ltd Vs CCE, Lucknow (Dated : December 13, 2011)

Central Excise – Stay/Application for waiver of pre-deposit – Short payment of duty resulting in proceedings initiated under Rule 8(3)(a) of Central Excise Rules, 2002 – As duty was paid with interest and maximum penalty imposable under Rule 27 of Central Excise Rules, 2002 is Rs. 5000/-, an amount of Rs. 5000/- directed to be pre- deposited – Rule 8(3)(a) read with Rule 27 of Central Excise Rules, 2002 – Section 35F of Central Excise Act

2012-TIOL-494-CESTAT-MUM

Ordnance Factory Vs CCE, Nagpur (Dated : December 19, 2011)

Aluminium alloy rods, flats and billets are not entitled for exemption under notification 64/95-CE as it existed prior to 01.03.2008 – Amending notification 7/2008-CE cannot be considered as retrospective in nature - Appellant has failed to show as to how the impugned goods can be considered as systems or sub-systems of launch vehicle – since appellant had obtained the necessary certificate from the competent authority to the effect that the goods are entitled for the benefit of notification, penalty cannot be imposed – Demand upheld and appeal dismissed: CESTAT [ para 8, 9 ]

Also see analysis of the Order

2012-TIOL-493-CESTAT-DEL

Sun Pharmaceutical Industries Vs CCE, Jammu (Dated : March 12, 2012)

Central Excise – Assessee availing area based exemption Notification No. 56/02-CE inadvertently failed to avail credit on furnace oil for a period of four years and availed it subsequently – Lower authority holds that input credit could be taken subsequently on the ground that there is no time limit for availment of CENVAT Credit on inputs, but upholds demand of duty claimed as refund in PLA during the relevant period on the ground that if the said credits were taken during the relevant period when they were available, then refund of duty amounts paid through PLA would have been less – Whether the trail of transactions adopted by assessee is revenue neutral or not – Member (Technical) differs with Member (Judicial) on the issue of revenue neutrality claimed by assessee – Matter goes to Third Member

Also see analysis of the Order

2012-TIOL-492-CESTAT-MAD

CCE, Chennai Vs M/s Mathura Polymers Ltd (Dated : November 3, 2011)

Central Excise – Clandestine removals – Demand set aside by the lower appellate authority on the ground of not conducting investigations with regard to the raw material requirement, electricity consumption etc - There is a definite admission regarding purchase of raw material for additional production and proof of receipt of goods by consignees by way of statement and acknowledgement on back side of invoices which were unearthed during investigation - The case requires a fresh look in the light of the available evidence gathered by the Department instead of merely pointing out what has not been done by the Department – Matter remanded.

2012-TIOL-487-CESTAT-MUM

M/s Interfit India Ltd Vs CCE, Coimbatore (Dated : December 16, 2011)

Central Excise – Supplies from DTA to SEZ Developers – Export – Availability of Credit – Goods supplied from DTA to SEZ Developers to be treated as export of dutiable goods and CENVAT credit available. (Para 2)

Central Excise – Wrong utilisation of credit – Clearances of exempted goods - Penalty – In a case of wrongly taking and utilising credit in contravention of the rules, inasmuch as, 10% of the amount required to be paid on the clearances of exempted goods was not made, penalty under Rule 15(1) of the CENVAT Credit Rules, 2004 is imposable. (Para 5)

2012-TIOL-484-CESTAT-BANG

CCE, Hyderabad Vs M/s Futnani Steels (P) Ltd (Dated : December 9, 2011)

Central Excise – Difference in stock of finished goods during physical verification resulting in demand of duty, imposition of penalty and redemption fine - Appellant's explanation that they were recording production based on approximate weight cannot be appreciated and clearly an afterthought - Proper maintenance of accounts on a day-to day basis a strict obligation - Goods become liable for confiscation and penalty imposable when there is a failure to maintain proper records - Order of Appellate Commissioner setting aside confiscation and penalty not sustainable - Contention of department on clandestine removal of goods not substantiated - Order of Appellate Commissioner setting aside demand of duty on clandestine removal upheld – For determining quantum of fine and penalty, tolerance of 10 to 15% in weight of the product being an industry norm deserves to be taken into account – Redemption fine reduced from Rs. 1 lakh to Rs. 50,000/- - Penalty reduced from Rs. 1 lakh to Rs. 25,000/- - Rules 25 of Central Excise Rules, 2002

2012-TIOL-482-CESTAT-MUM

M/s Press Metal Industries Vs CCE, Nashik (Dated : February 1, 2012)

Drawing and designs supplied free of cost – money value whether to be added to cost of the goods viz. sheet metal parts, fabricated parts and control panel board - SC decision in International Auto was holding field - contention that extended period is not invokable has force – issue debatable - duty and interest for the normal period of limitation has already been deposited - sufficient for compliance of s.35F of CEA, 1944 - Pre-deposit of balance amount waived - Stay granted: CESTAT [para 7, 8]

Also see analysis of the Order

2012-TIOL-479-CESTAT-MUM

The Supreme Industries Ltd Vs CCE & ST (LTU), Mumbai (Dated : February 8, 2012)

SCN demanding duty issued in year 2006 on the same ground which proceedings for the earlier period were already dropped by the Additional Commissioner in year 2005 - strong prima facie case on limitation – removal of used capital goods on transaction value – prima facie case in favour in view of HC decision in Cummins India and Raghav Alloys – Pre-deposit waived & Stay granted: CESTAT [ para 7 ]

Also see analysis of the Order

2012-TIOL-477-CESTAT-MAD

CCE, Pondicherry Vs M/ Bansal Metallic Oxides (Dated : October 7, 2011)

Central Excise – SSI Exemption – Value of clearances under Deemed Export – Clubbing of – “Deemed Exports" cannot be equated as "exports" for each and every purpose. Benefits available for "deemed exports" shall be only those specifically provided under the EXIM Policy. Value of "Deemed Exports" is to be included in the calculation of aggregate value of clearances for extending the benefit of exemption in terms of Notification No.1/93-CE. (Para 22)

Also see analysis of the Order 2012-TIOL-476-CESTAT-AHM

M/s GNFC Ltd Vs CCE, Vadodara (Dated : November 8, 2011)

Central Excise – Eligibility of CENVAT credit on empty chlorine cylinder – Remand order passed by Tribunal to lower authority to specifically verify dual usage of empty cylinder as storage tank as well as for transportation of chlorine – Appellant made a clear submission that the same cylinders in which chlorine was transported were connected to machines in the factory and chlorine was removed from cylinders for use in the factory, thereby confirming dual functions of transportation and storage tank – In view of the LB decision in case of Banco Products (India) Ltd - 2009-TIOL-421- CESTAT-AHM-LB , credit admissible on empty cylinder – Appellant cannot be faulted for entertaining a bonafide belief that credit was admissible to them – Impugned order set aside on merits as well as limitation

Levy of penalty – Credit availed on two ineligible items amounting to Rs. 4220/- reversed – Fit case for waiver of penalty

2012-TIOL-471-CESTAT-MUM

Subhash Muljimal Gandhi Vs CC (CSI), Airport, Mumbai (Dated : March 26, 2012)

Postal authorities returning SCN/OIO as being ‘unclaimed' - Since delivery of the SCN as well as the O-in-O was deliberately & intentionally avoided by the appellant, contention that the same has not been served is unsustainable – Appeal dismissed - Appellant making allegations of favouritism – SCN issued for initiation of contempt proceedings: CESTAT [ para 4, 5, 6 ]

Also see analysis of the Order

2012-TIOL-470-CESTAT-DEL

M/s Shree Rajasthan Syntex Ltd Vs CCE, Jaipur-II (Dated : February 15, 2012)

Central Excise - Valuation - Provisional assessment - Inclusion of Freight and Insurance Charges - Factory gate Clearances - Depot clearances - Stay / Dispensation of pre-deposit - Excise duty cannot be charged on freight collected whether charged on equalized basis or otherwise. Revenue has not brought out that assessee collected part of the value of goods in the guise of freight. Stay granted. (Para 9 & 10)

2012-TIOL-465-CESTAT-BANG M/s Vijayanagar Food Products (P) Ltd Vs CCE, Mangalore (Dated : December 2, 2011)

Central Excise – Demand of 10% amount under Rule 6(3) for not maintaining separate books of accounts for using common inputs in dutiable and exempted products – Demand of input credit on inputs lying in stock on the date of availment of exemption Notification No. 22/2007-CE – Assessee contravened Rule 6(3) by not maintaining separate accounts and also Rule 11 by not reversing CENVAT credit on inputs in stock as on the date immediately before opting for exemption under Notification No.22/2007-CE – Levy of penalty under Rule 15(1) upheld – Considerations like financial constraints have a bearing on quantum of penalty to be imposed and impugned order does not indicate that this aspect was considered – Quantum of penalty reduced to Rs. 15,000/-

2012-TIOL-464-CESTAT-MAD

M/s Sri Rangavilas Ginning, Spinning And Weaving Mills Vs CCE, Coimbatore (Dated : December 16, 2011)

Central Excise - MODVAT Credit - Assessment of RT-12 pending with Department - Credit of differential duty availed - Demand – In the absence of any response from the department, the assessee was compelled to take credit of the impugned amount. Department failed to assess the relevant returns despite repeated requests from the assessee. The demand notice and the resultant orders issued by the authorities below are fully unjustified as there are no documents available with the department nor any have been produced to prove to the contrary that the assessees are not entitled for the credit of the impugned amount. Appeal allowed. (Para 3 & 4)

2012-TIOL-459-CESTAT-MAD

Sundaram Clayton Ltd Vs CCE, Chennai (Dated : November 4, 2011)

Central Excise – CENVAT Credit of service tax paid on warehousing service received in USA – Since the warehouses were hired in USA, beyond the jurisdiction of Indian authorities, no service tax is payable in the first place – For the same reason, CENVAT credit cannot be denied.

2012-TIOL-455-CESTAT-AHM

M/s Bajaj Foods Ltd Vs CCE, Ahmedabad-II (Dated : November 24, 2011)

Central Excise – 100% EOU – Duty of Rs. 1,73,322/- paid in 04/09 on inputs, packing materials lying stock prior to de-bonding of unit and conversion into DTA unit on 01.07.2009 – Refund claim filed under Rule 5 of CCR, 2004 for the said amount on the ground that appellant was unable to utilize the same as CENVAT Credit since goods manufactured by them are completely exported – Refund claim rejected on the ground that finished product viz., peanut butter exempt from payment of duty (for DTA unit) and therefore no CENVAT credit was admissible – When goods are absolutely exempted from payment of duty, question of taking CENVAT Credit does not arise – When appellant paid duty on inputs, packing materials etc lying in stock it was still a 100% EOU and since it was 100% EOU, appellant eligible for CENVAT Credit – When credit could not have been utilized and gets accumulated, refund will be available

Refund claims filed for Rs. 30,652/- and Rs. 3,20,498/- for quarter ending 09/08 and for the period from 10/08 to 12/08 respectively (when appellant still a 100% EOU) – In view of the fact that appellant had utilized only CENVAT Credit for payment of duty on domestic clearances, balance available in the books to be held as accumulated CENVAT Credit – Refund claims admissible, impugned orders rejecting the three refund claims set aside

2012-TIOL-453-CESTAT-MUM

M/s Mukand Ltd Vs CCE, Belapur (Dated : February 7, 2012)

Waste and scrap not received from job workers – Revenue is unable to show any provision that provides for reversal of credit in respect of inputs contained in such waste and scrap – Prima facie strong case in favour – Pre-deposit of Rs.1.20 Crores waived and stay granted: CESTAT [ para 5 ]

Also see analysis of the Order

2012-TIOL-447-CESTAT-DEL

M/s Sweet Voice Cassettes (India) Pvt Ltd Vs CCE, Delhi (Dated : February 8, 2012)

Central Excise - Clandestine Clearance - Supply of records - Principles of natural justice - Evidentiary value of statement - Stay / Dispensation of pre-deposit - The statement of Proprietor of the job worker and also of the assessee are sufficient evidence on record indicating towards clandestine activity at this prima facie stage. Non-supply of the private record causes no prejudice. Pre-deposit ordered. (Para 6)

2012-TIOL-446-CESTAT-MAD

M/s Tamil Nadu Cements Corporation Ltd Vs CCE, Tirunelveli (Dated : November 18, 2011)

Central Excise - MODVAT Credit - Delay in filing declaration – The assessee has filed declaration within six months claiming credit under the head 'capital goods'. Due to change in definition of 'capital goods' the goods came to be under ‘inputs'. Revised declaration was filed for the same goods under the head ‘inputs'. It cannot be said that there was delay in filing declaration. Credit allowed. (Para 1)

2012-TIOL-445-CESTAT-MUM Finolex Cables Ltd Vs CCE, Pune-I (Dated : February 3, 2012)

Valuation – whether under s. 4A of the CEA, 194 - Wires and Cables cleared in running length of 25 and 100 metres prima facie cannot be considered as parts of automobiles – applicants have a strong case – Pre-deposit waived and stay ordered: CESTAT [ para 8 ]

Also see analysis of the Order

2012-TIOL-444-CESTAT-MAD

CCE, Trichy Vs M/s Vaigai Industries (Dated : December 23, 2011)

Central Excise – CENVAT Credit on capital goods – Credit is admissible on the steel items used in the manufacture of capital goods, namely electrolysis cell which in turn is used for producing the final products – No merit in the appeal filed by the department.

2012-TIOL-443-CESTAT-MAD

M/s Trichy Distilleries & Chemicals Ltd Vs CCE, Trichy (Dated : November 3, 2011)

Central Excise - CENVAT credit– Steel is used in manufacture of storage tank installed in the factory - Capital goods - Eligibility of credit - Storage tanks are specifically included in the definition of capital goods. As such, the credit in respect of goods actually used in the manufacture of storage tanks is required to be allowed. The matter is remanded to the original authority for allowing credit in respect of the material actually used in the manufacture of storage tanks. (Para 4)

2012-TIOL-434-CESTAT-BANG

CCE, Guntur Vs M/s G S Alloys Castings Ltd (Dated : October 14, 2011)

Central Excise – Allegation of fraudulent availment of input credit without actual receipt of materials – Demand raised with interest and proposal for levy of penalty by lower authority set aside by Commissioner (A) based on an affidavit filed by transporter on behalf of assessees claiming to have supplied goods to assessees – Affidavit filed at appellate stage adduced as evidence by lower appellate authority without valid reason – Assessee did not rely on such an affidavit while replying to the SCN or during proceedings before original authority – Fact that an amount equal to credit in question was paid by assessee prior to issue of SCN and the same was appropriated by original authority, overlooked or ignored by appellate authority – Impugned order set aside and matter remanded to Commissioner (A) with a direction to take decision on merits based on evidences available on record before original authority and without regard to affidavit of transporter 2012-TIOL-427-CESTAT-MUM

Samruddhi Industries Vs CCE, Nagpur (Dated : July 7, 2011)

Notification 6/2006-CE – pipes used for water supply projects wherein bulk of water has been supplied for human and animal consumption – even when it was used in the industry, it was used for gardening and flushing of toilets, which again is not in the nature of industrial use of water – substantive benefit under exemption notification cannot be denied – Appeal allowed: CESTAT [ para 5.1, 6 ]

Also see analysis of the Order

2012-TIOL-426-CESTAT-DEL

M/s Hi-Tech Needles (P) Ltd Vs CC, Allahabad (Dated : January 11, 2012)

Central Excise - 100% EOU - Clandestine Clearances - Two Show cause notices on same issue invoking extended period - Sustainability of - The second demand is for a period prior to the period covered by the first SCN. The second SCN is based on records obtained from the assessee later. When there is suppression and clandestine manufacture the outer limit for issuing SCN is five years from the relevant date. The second SCN is issued within this outer period. The plea of time bar is rejected. (Para 19)

Burden of proof - Goods of foreign origin - Section 123 of Customs Act - The seized goods i.e. cannulae, are of foreign origin. But this is not one of the items notified under section 123 of the Customs Act. Revenue has to lead evidence showing clandestine import of the goods. These are goods for the import of which there is no restriction. When such goods are seized from any person in the domestic market it is not legally proper to conclude, without any corroborative evidence, that the goods were smuggled by the person from whom the goods are seized and also that no customs duty has been paid at the time of import. Demand of Customs duty not sustainable. (Para 20)

Burden of proof - Clandestine Clearances - Unaccounted final products are seized from the possession of the assessee. Their private records showed receipt and issue of cannulae. Though they claim that they were also trading in that item but did not disclose from whom the goods were purchased and to whom the goods were sold. The facts leads to the conclusion that the assessees had manufactured the needles as alleged. It is very obvious that the assessee has been successful in their clandestine operations to some extent. Clandestine manufacture of excisable goods is maintainable and demand upheld. (Para 21)

Penalty - Invocation of wrong provision - Though Rule 173Q is not applicable to a Hundred Percent EOU, Rule 209 is applicable to any manufacturer and this rule will apply to the situation. Wrong mention of the rules cannot strike at the legal maintainability of the order. The confiscation of goods seized under the provisions of Central Excise Rules is upheld. The redemption fine is upheld. A combined penalty is imposed on the Managing Director under Customs Act and Central Excise Act. A penal liability cannot abate on account of such errors of the adjudicator. Matter remanded to quantify the actual duty liability and for deciding separate penalties upon the Managing Director . (Para 22 & 25)

2012-TIOL-425-CESTAT-DEL

M/s Pilania Steel Pvt Ltd Vs CCE, Raipur (Dated : February 10, 2012)

Central Excise - Clandestine Clearances - Credit availed without receipt of goods - Private records - Evidentiary value - Demand - Stay / Dispensation of pre-deposit - In respect of the demand in respect of goods alleged to have been brought into the factory but cleared without reversal of Cenvat credit, the Revenue has not been able to adduce any evidence to show that the credits on those items were taken. Therefore, this demand is prima facie not maintainable. In respect of the balance demand on different issues, the assessee has already deposited substantial amount. This is sufficient to admit the appeal. Stay granted. (Para 4)

2012-TIOL-418-CESTAT-BANG

CCE, Bangalore Vs M/s Balaji Power Gears (Dated : October 21, 2011)

Central Excise – Excess excise duty paid suo motu taken as credit into CENVAT A/c – Credit taken suo motu paid back through PLA/TR 6 challans and a separate refund claim filed – Lower authorities sanctioned refund by holding that limitation has to be computed in terms of Limitation Act, 1963 – Section 11B clearly prescribed a period of limitation for refund claim and there was no warrant for applying any other provision of law to the refund claim filed by assessee – Cancellation of invoices or suo motu taking of credit of excess duty paid not disclosed in statutory returns – CESTAT Larger Bench decision in BDH Industries Ltd case - 2008-TIOL-1211-CESTAT-MUM-LB wherein it was held inter alia that no suo motu credit of duty paid in excess could be taken by the assessee and that all types of refund claims required to be filed under section 11 B of CEA, 1944 not considered by lower authorities – Crucial facts ignored by lower authorities resulting absurd orders, liable to be set aside – Matter remanded to original authority for fresh consideration – Section 11B of Central Excise Act, 1944

2012-TIOL-417-CESTAT-BANG

CC & CE, Visakhapatnam Vs M/s Andhra Pradesh Paper Mills Ltd (Dated : November 11, 2011)

Central Excise – Eligibility of CENVAT Credit on TMT bars, MS angles, MS channels, SS sheets etc used for fabrication of support structurals of capital goods – Original authority did not examine relevant aspects while considering admissibility of capital goods credit – Without expressing any views on substantive issues, matter remanded to original authority for fresh consideration

2012-TIOL-413-CESTAT-BANG CCE, Visakhapatnam Vs M/s GMR Industries Ltd (Dated : November 4, 2011)

Central Excise – Eligibility of CENVAT credit on welding electrodes, rubber gaskets, membrane cleaner, ceramic fibre woven clothing, seals etc as inputs and for flanges, chains, nickel screen, MS angles/plates etc as capital goods – Credit not admissible on welding electrodes used for repairs and maintenance of machinery – Lower appellate authority should not have taken a conclusive view on the question of admissibility of CENVAT credit without adverting to evidence of usage of impugned goods in factory – Matter remanded to original authority for fresh decision

2012-TIOL-412-CESTAT-MAD

N G A Steels Private Ltd Vs CCE, Salem (Dated : December 16, 2011)

Central Excise – Demand - Reduction of - Benefit of 25% penalty - Principles of natural justice - The authorities below have not given an option to the assessee for paying reduced penalty of 25% and also certain submissions of the Revenue not considered. Matter remanded . (Para 1)

2012-TIOL-409-CESTAT-MAD

M/s Jino Systems India Pvt Ltd Vs CCE, Chennai (Dated : December 16, 2011)

Central Excise – Trading – Duty received from buyer – Section 11D - Penalty – In respect of some invoices the assessee has not recovered any excess excise duty and in respect of the one invoice they have already paid the duty amount along with interest. There is no specific provision either in the Act or in the Rules for imposition of penalty for a case under Section 11D of the Act. Penalty set aside. (Para 3 & 4)

2012-TIOL-405-CESTAT-MAD

Kwality Fun Foods & Restaurant P Ltd Vs CCE, Coimbatore (Dated : January 31, 2012)

Central Excise – Valuation – Related person – HLL entering into agreement with Kwality Fun Foods & Restaurant Pvt. Ltd for manufacture of Ice Creams under the Brand name acquired by HLL - HLL was concerned with KFRL in commercial terms and KFRL having facility of manufacture, such facility was availed by HLL to get its branded goods manufactured by the former - That does not make them related persons - If the manufacturer or buyer are one and the same person behind curtain in that circumstance, holding them “related person” applying section 4 of Central Excise Act, 1944 may be possible - Merely because ice cream was manufactured using brand name acquired by HLL and entire product was sold to BILIL/HLL, that did not make them “related person” - SCNs did not lift the corporate veil to find out any mysterious arrangement between the parties to cause subterfuge to Revenue - “Related person” does not mean mere holding of shares by a company - Obligations of parties were well defined by sourcing agreement and that also separated both entities with their defined individual objects. No evidence came to record to prove that Revenue was prejudiced and there were no cogent reasons or evidence depressing the assessable value – Impugned order set aside.

2012-TIOL-404-CESTAT-BANG

CCE, Belgaum Vs M/s India Sugar & Refineries Ltd (Dated : October 28, 2011)

Central Excise – Eligibility of CENVAT Credit on MS angles, plates, sheets, rods used for fabrication and maintenance of structures/capital goods – Original authority denied credit by holding that the impugned goods are not capital goods – Appellate authority held the same as inputs and allowed credit, resulting in Revenue appeal – Original authority did not have occasion to examine whether impugned goods qualified to be capital goods or alternatively as inputs – Impugned order set aside and matter remanded – Rules 2(a) and 2(k) of CENVAT Credit Rules, 2004

2012-TIOL-401-CESTAT-MUM

Alluglaze Vs CCE, Mumbai (Dated : December 22, 2011)

Appellant manufacturing Aluminium structures and clearing on payment of duty - such structures used by them for providing Construction Service on which Service Tax is paid by claiming benefit of Notfn. 1/2006-ST - Cenvat credit availed on inputs used for manufacture of "Aluminium structures" is denied - since no credit has been availed on 'Aluminium structures' prima facie case in favour - Stay petition allowed: CESTAT [para 6]

Also see analysis of the Order

2012-TIOL-400-CESTAT-DEL

CCE, Chandigarh Vs Mukat Pipes Ltd (Dated : November 16, 2011)

Central Excise - Valuation - Place of removal - Revenue contends that the contract was for supply of goods at the project sites and therefore, the place of removal of goods should be considered as project site and therefore, as per provisions of section 4 of Central Excise Act, freight upto place of removal had to be added in the assessable value and duty is to be paid on such value.

HELD - The fact that the assessee had undertaken to carry out certain processes like epoxy coating and gunnitting, not amounting to manufacture on the pipes at the project site, does not prove that sale was not made at the factory gate. Unless it is proved that the risk of any damage to the pipes stored at project site till the processes were carried out, was to the assessees account, it cannot be held that the place of sale was the project site. The expression 'place or premises from where the excisable goods are to be sold' used in Section 4(3)(c), cannot be interpreted to mean a place or premises where the excisable goods are delivered to the buyers . Appeal dismissed. (Para 7 & 9) 2012-TIOL-396-CESTAT-DEL

K P Pouches Pvt Ltd Vs CCE, Delhi (Dated : November 2, 2011)

Central Excise - Clandestine Clearances - Gutka - Private records of transporter - Evidence - Demand - Stay / Dispensation of pre-deposit - The proceedings are in respect of records recovered from the transport company. The goods seized are having codes on the bags and the same are entered in the records of transport company. The names of the consignors and consignees indicated in biltys (Lorry Receipts) are fraudulent. So these codes are prima-facie for indicating the consignor and the actual consignees. The demand is in respect of entries made under these abbreviations in respect of Gutka only . Companies manufacturing Gutka have low assets in plant and machineries and tend to vanish. Pre-deposit ordered. (Para 16, 18 & 19)

2012-TIOL-394-CESTAT-BANG

CCE, Belgaum Vs M/s Hindustan Engineers (Dated : September 16, 2011)

Central Excise – Eligibility of CENVAT Credit on MS flats and MS angles used for manufacturing material handling equipments such as moulding tracks and bucket elevators – Essential facts pleaded before the adjudicating authority at variance with pleadings made in the reply to SCN – Respondent-assessee filed a declaration as to how flats and angles were used along with photographs in support of such declaration – Respondent-assessee not opposed to Proper Officer of Central Excise visiting their factory and inspecting material handling equipments to have been fabricated/manufactured out of MS Flats and MS Angles in question – Matter remanded to original authority to consider these materials in de novo proceedings – Based on alternative plea of respondent, if respondent found eligible for CENVAT Credit on MS flats and MS angles as inputs, they should be given that benefit in as much as department not opposed to such observations made by adjudicating authority in favour of respondent – Original dispute as to whether flats and angles could be considered as parts/components of capital goods for availing CENVAT credit still open for fresh adjudication – In case they are found to be ineligible as capital goods, alternative claim for availing credit on the same items as inputs to be considered – Impugned order set aside and matter remanded for de novo adjudication – Rule 2(a) read with Rule 2(k) of CENVAT Credit Rules, 2004

2012-TIOL-391-CESTAT-BANG

M/s Kasturi Organic Chemicals Vs CCE, Mangalore (Dated : November 11, 2011)

Central Excise – Removal of credit availed inputs as such – Credit not reversed at the time of removal but reversed subsequently after investigations by department – Reversal of credit cannot be regarded as voluntary payment under s. 11A (2B) of CEA, 1994 in as much as it was reversed pursuant to investigations by department – Demand of interest and levy of penalty under s. 11AC sustained - Circumstances envisaged under first proviso to s. 11 AC do not exist in this case to avail benefit of reduced penalty – Mandatory penalty confirmed in view of Apex Court judgment in Dharamendra Textile Processors case - 2008-TIOL-192-SC-CX-LB 2012-TIOL-390-CESTAT-DEL

Shri Dhanwantri Ayurvedic Pharmacy Vs CCE, Jalandhar (Dated : January 12, 2012)

Central Excise - SSI Exemption – Manufacture of both Dutiable and Exempted Ayurvedic Medicines by the assessee – SSI Exemption is available only when the aggregate value of clearances of all excisable goods during the previous financial year is less than Rs.300 Lakhs in terms of Para 2 (vii) of the Notification No.8/2003-CE – The value of clearances of both dutiable and exempted goods are required to be clubbed for the purpose of allowing SSI exemption for subsequent year – Since the value of clearance of both dutiable and exempted goods crossed Rs.300 Lakhs no SSI benefit is available for 2003-2004 - Duty and interest paid immediately - Based on the facts of the case no intention to evade payment of duty by the Appellants – Confirmed duty and Interest - Penalty under Section 11 AC set aside (Para 8).

2012-TIOL-388-CESTAT-DEL

CCE, Raipur Vs M/s Baldev Alloys (P) Ltd (Dated : November 7, 2011)

Central Excise - Limitation - Extended Period - Issue under dispute - No reference to extended period in show cause notice - The show cause notice does not make any allegation of misstatement or deliberate contravention of the provisions of the Central Excise Act, 1944 or of the Rules made thereunder with intent to payment of duty and, as such, the proviso to Section 11A (1) has not been invoked. Further, when there is bonafide doubt about excisability of the goods due to divergent views of the High Courts, extended period of five years cannot be invoked. Hence, demand not maintainable on account of limitation. (Para 4)

2012-TIOL-382-CESTAT-DEL

CCE, Jaipur Vs Vansthali Textile Industries Ltd (Dated : November 22, 2011)

Central Excise - 100% EOU - Exemption Notification - Whether furnace oil is 'consumable' - Contention of Revenue is that furnace oil is not a "consumable" as given in the Import Export Policy and that furnace oil is not consumed in the manufacture of terry towels.

HELD - Steam is required for manufacture of terry towels and furnace oil obtained was used for producing steam and steam was consumed in manufacture of terry towels. Hence, furnace oil is to be considered as "consumable" and benefit of exemption notification is allowed. Appeal dismissed. (Para 8)

2012-TIOL-376-CESTAT-MUM India Tube Mills & Metal Industries Vs CCE, Mumbai (Dated : December 27, 2011)

Appellant clears parts of Drums and C.S columns on payment of C.Ex duty for erection at site– Revenue seeking valuation on contract price – Since assessee also discharges Service Tax on the activity of erection and commissioning of the same goods, prima facie strong case in favour – Pre-deposit waived and stay granted: CESTAT [ para 5 ]

Also see analysis of the Order

2012-TIOL-375-CESTAT-DEL

M/s Nitin Spinners Ltd Vs CCE, Jaipur (Dated : February 23, 2012)

Central Excise - 100% EOU - Migration to EPCG Scheme - Rate of excise duty payable on indigenously procured capital goods on de-bonding - Stay / Dispensation of pre- deposit - While the rate of customs duty chargeable on the capital goods imported under EPCG scheme has been prescribed under Notification No. 64/2008-CUS issued under Section 25 (1) of Customs Act, 1962 and the same alongwith the education cess is 3.09%, on Central Excise side there is no such parallel notification issued under Section 5A of Central Excise Act, 1944, prescribing a similar concessional rate of duty in respect of capital goods supply under EPCG scheme. In the absence of such an Excise Exemption Notification, the EPCG rate prescribed under Customs Notification No. 64/2008-CUS dated 09/05/2008 cannot be treated as concessional rate of excise duty chargeable on indigenously manufactured goods at the time of their debonding by a 100% EOU migrating to EPCG Scheme. In view of this, pre-deposit ordered. (Para 4)

2012-TIOL-372-CESTAT-DEL

Larsen & Toubro Ltd Vs CCE, Indore (Dated : March 2, 2012)

Central Excise - Exemption Notification - Supplies made to World Bank funded Project - Clearances made prior to funding by World Bank - Demand - There is nothing in the notification No.108/95-CE for denying the exemption to goods supplied to the project prior to the date from which finance was provided by the World Bank. Exemption under Notification No.108/95-CE cannot be denied for the reason that part of the project was met by the beneficiary of the loan from the World Bank. (Para 11)

2012-TIOL-371-CESTAT-MUM

M/s Electronica Leasing & Finance Ltd Vs CCE, Aurangabad (Dated : December 2, 2011)

Cenvatted capital goods taken re-possession by finance company as assessee defaulted in re-payment of loan - confiscation of the machines was proposed u/s 9 of the CEA, 1944 whereas original authority confiscated the same u/r 173Q of CER, 1944, u/r 25 of CER and imposed redemption fine which quantum was reduced by Commr(A) - under Rule 25, the manufacturer, purchaser and registered dealer are covered and the appellants are neither a purchaser, manufacturer or registered dealer – proceedings initiated are not covered under the Central Excise Rules – appeal allowed : CESTAT

Also see analysis of the Order

2012-TIOL-370-CESTAT-BANG

M/s Sujana Metal Products Ltd Vs CCE, Hyderabad (Dated : October 5, 2011)

Central Excise – Demand of 10% amount under Rule 6 of CCR, 2004 for supplies from DTA to SEZ – Exception provided under Rule 6(6) of CENVAT Credit Rules, 2004 applies to supply of exempted goods to SEZ developers and promoters – Issue no longer res integra – Impugned orders of Commissioner holding contrary view set aside – No reason to interfere with orders of Appellate Commissioner passed in favour of assessees – Rules 6 of CENVAT Credit Rules, 2004

2012-TIOL-361-CESTAT-DEL

M/s Rajasthan Explosives & Chemicals Ltd Vs CCE, Jaipur (Dated : January 24, 2012)

Central Excise - Demand - Pre-deposit ordered - Modification of pre-deposit order - The Tribunal's stay order having been affirmed by the High Court and the Hon'ble Supreme Court, the modification of the same by the Tribunal cannot be done. Since, there is non-compliance on the part of the assessee to make pre-deposit, appeals stand dismissed. (Para 10 & 11)

2012-TIOL-359-CESTAT-BANG

M/s Karnataka Metal Company Vs CC, CE & ST, Hyderabad (Dated : September 14, 2011)

Central Excise – Appeals dismissed by Commissioner (A) for non-compliance of orders passed for pre-deposit of penalties – No prima facie case made out for waiver of pre- deposit – In the facts and circumstances of the case, pre-deposit of Rs. 3 lakhs ordered in case of one appellant against an amount of Rs. 16 lakhs ordered by lower appellate authority – Lower Appellate Authority directed to dispose all three appeals on merits subject to pre-deposit of this amount – Section 35F of Central Excise Act, 1944

2012-TIOL-354-CESTAT-MAD

CCE, Trichy Vs Anjaneya Steel Rolling Mills (Dated : February 2, 2012) Central Excise – Limitation – Review under Section 35 E of the Central Excise Act, 1944 – Assessee contends review was not done within the stipulated period of one year – Revenue fails to produce the file to find out the date of review order - Merely explaining the practice followed by Board in decision making, Revenue is not absolved of its obligation to adhere to the limitation prescribed by law. Public authorities are expected to protect interest of State being vigilant - While on one hand review record could not be produced by Revenue to appreciate its contentions, on the other, belated communication of the unsigned review order on 17.3.03 proves that no review was done on 31.12.2002 – Revenue appeal is not maintainable.

Also see analysis of the Order

2012-TIOL-353-CESTAT-BANG

CCE & CC, Visakhapatnam Vs M/s Kendriya Chemicals & Fertilizers (Dated : September 23, 2011)

Central Excise – Goods manufactured on job work basis and cleared to principal manufacturer – Duty collected from principal not remitted to government resulting in demand of duty under section 11D – Plea of allowing CENVAT credit benefit on inputs used in job work raised before lower appellate authority for the first time who remanded the matter to original authority for consideration, resulting in Revenue appeal – Appellate Commissioner has no power to remand in terms of section 35A(3), hence remand order not sustainable – Issue raised before lower appellate authority as regards allowing CENVAT Credit on inputs used could not have been considered without verification of documents, hence reason for remand order justifiable though Appellate Commissioner has no powers to remand – Eligibility of CENVAT Credit for job worker to be verified by original authority from records and if found eligible claim for CENVAT credit to be settled on that basis – Matter remanded with direction to lower authority to pass a speaking order

2012-TIOL-349-CESTAT-MUM

Srihari Greenhouse P Ltd Vs CCE, Pune-I (Dated : December 15, 2011)

Pre-fabricated buildings means buildings which are finished in the factory or put up as elements cleared together to be assembled on site - By merely supplying materials for the greenhouse, there is no evidence on record to show that what has been supplied is a 'greenhouse' - Prima facie case in favour - Pre-deposit waived and stay granted: CESTAT [para 6]

Also see analysis of the Order

2012-TIOL-340-CESTAT-AHM

M/s Metrochem Industries Ltd Vs CCE, Vadodara (Dated : December 1, 2011) Central Excise - CENVAT - MS Plates, Angles, Channels used in Scrubber Tank, Chimney, Ducting etc - Denial of credit - Stay / Dispensation of pre-deposit - The availability of cenvat credit on MS Plates, Angles, Channels etc. used for assembly of Scrubber tank, Ducting, Chimney etc. is prima facie in favour of the assessee as per precedent decisions on the matter. Stay granted. (Para 2)

2012-TIOL-339-CESTAT-AHM

M/s Century Dyeing & Printing Mills Vs CCE, Surat (Dated : January 3, 2012)

Central Excise - CENVAT - Invoice not as per Rule 11 of CER, 2002 - Reversal of credit - Grey Fabrics - Except the name of consignee all other details are available in the invoice. The original adjudicating authority failed to take note of the fact that name of the consignee is not one of the essential requirements specified in the proviso to Rule 9(2) of Cenvat Credit Rules 2004 and therefore, it was necessary to examine whether other conditions required to be fulfilled for allowing the cenvat credit have been fulfilled or not. Matter remanded for fresh determination. (Para 4)

2012-TIOL-338-CESTAT-MUM

Parle Bottling Ltd (Agro Unit) Vs CCE, Raigad (Dated : January 24, 2012)

Eligibility for Cenvat credit has to be determined at the time the capital goods are received and if the goods become dutiable subsequently the same will not revive the question of admissibility of modvat credit on capital goods - no prima facie case - Pre- deposit ordered of Rs.11.50 lakhs: CESTAT [para 7, 8]

Also see analysis of the Order

2012-TIOL-337-CESTAT-DEL

M/s Punjab Communications Ltd Vs CCE, Chandigarh (Dated : January 12, 2012)

Central Excise - CENVAT - Goods issued for R & D - Eligibility of credit - Inputs used in Research and Development / Trial production are eligible for Cenvat credit. The expression "used in relation to" does not meant that the inputs should find a place in the final products cleared on payment of duty. Revenue has not made out any case that the inputs were cleared without payment of duty or they were destroyed in the process of so called R&D. Credit available. (Para 11)

2012-TIOL-336-CESTAT-MUM

CCE, Nagpur Vs M/s Sushil Packaging (Dated : November 11, 2011) As the assessee had not yet registered its Unit under the Rules, the assessee was not entitled to utilize Cenvat credit in the year of acquiring the same - Once the credit is not utilized in the same year, then Rule 4(2)(b) of CCR, 2004 provides that it can be utilized in any year and to the full extent - It is only after registration, in the subsequent year, that assessee they have utilized the entire Cenvat credit which was standing to their credit – no infirmity in such an availment and utilization – Issue settled in Progressive Systems (2010-TIOL-195-CESTAT-BANG) in favour of the assessee in view of dismissal of Revenue appeal by Karnataka High Court (2011-TIOL- 277-HC-KAR-CX) . – Appeal allowed: CESTAT [para 3, 4, 5]

2012-TIOL-331-CESTAT-AHM

M/s Macleods Pharmaceuticals Ltd Vs CCE, Vapi (Dated : November 22, 2011)

Central Excise - Limitation - Extended Period - Quantitative discounts disclosed in monthly returns - The monthly returns has a column which indicates "removal from the factory without payment of duty" wherein the assessee has clearly indicated the quantity of P or P medicaments cleared without payment of duty under quantitative discount. Extended period cannot be invoked. Hence, demand not maintainable on account of limitation. (Para 4)

2012-TIOL-330-CESTAT-MUM

Videocon Industries Ltd Vs CCE, Aurangabad (Dated : December 16, 2011)

Merely because the inclusive part of the definition describes certain elements to be included in the retail sale price, it does not mean that whatever is not specifically stated therein cannot be included in the retail sale price - there is no provision whatsoever under the law to exclude warranty charges from the retail sale price – Pre-deposit ordered of nearly Rs.2 crores: CESTAT [para 8, 12]

Merely, because certain elements in the price is liable to service tax, that is no reason for exclusion of the same while computing duty liability on the goods when the provisions specifically includes such charges also in the retail sale price: CESTAT [para 8]

Also see analysis of the Order

2012-TIOL-329-CESTAT-BANG

M/s Matrix Laboratories Ltd Vs CCE, Hyderabad (Dated : September 26, 2011)

Central Excise – Stay/Application for waiver of pre-deposit – Allegation of irregular availment of CENVAT Credit on furnace oil and capital goods used in job work activity undertaken for sister unit under Notification No. 214/86-CE – Prima facie no case in favour of appellant – Pre-deposit of 50% of dues ordered – Balance dues and penalties waived subject to pre-deposit – Section 35F of Central Excise Act, 1944 – Notification No. 214/86-CE dated 25.03.1986 read with CENVAT Credit Rules, 2004

2012-TIOL-322-CESTAT-MUM

M/s Paramount Minerals & Chemicals Ltd Vs CCE, Thane (Dated : February 7, 2012)

There is no time limit under rule 16 of CER, 2002 for availing Cenvat Credit on goods returned to the factory – Credit correctly taken - appeal allowed with consequential relief: CESTAT [ para 7 ]

Also see analysis of the Order

2012-TIOL-321-CESTAT-MUM

M/s Paramount Minerals & Chemicals Ltd Vs CCE, Thane (Dated : December 19, 2011)

Rule 21 of CER, 2002 - Remission of duty in respect of goods destroyed in floods – application cannot be decided without following the principles of natural justice – Matter remanded: CESTAT [para 4]

2012-TIOL-319-CESTAT-MUM

Shri Pinkesh Jain Vs CCE, Mumbai (Dated : January 5, 2012)

Fraudulent availment of Cenvat Credit of more than Rs. 2 Crores - it is admitted that the employees of the assessee were preparing excise documents in the Excise Consultant's office and with his help had availed credit fraudulently – Prima facie no case for waiver of penalty – Consultant directed to make pre-deposit of Rs. One lakh: CESTAT [para 7]

Also see analysis of the Order

2012-TIOL-318-CESTAT-DEL

M/s Liberty Shoes Ltd Vs CCE, Panchkula (Dated : December 19, 2011)

Central Excise - Refund - Duty paid under protest - Unjust enrichment - The bills raised by the assessee show that the incidence of duty has not been passed on to the customer. Hence, refund allowed. (Para 6 & 7) 2012-TIOL-314-CESTAT-MUM

Benison Footwear Pvt Ltd Vs CCE, Thane I (Dated : January 5, 2012)

Notfn. 5/2006-CE – MRP has to be indelibly marked or embossed on the footwear itself - since the appellant is only affixing a sticker of MRP on the shoes, benefit deniable - no prima facie case in favour - Pre-deposit ordered of Rs.2 lakhs: CESTAT [para 7]

Also see analysis of the Order

2012-TIOL-308-CESTAT-MUM

M/s Technofour Combines Pvt Ltd Vs CCE, Belapur (Dated : January 5, 2012)

Manufacture of electric switch gears on job work basis for Siemens Ltd. - Bombay HC has in case of L & T has held that goods are pre-packaged commodity and liable for duty u/s 4A of CEA, 1944 - payment of duty by valuation u/s 4 of CEA, 1944 was accepted by Revenue - offer of pre-deposit of Rs.30 lakhs accepted for granting stay: CESTAT [para 4, 6]

2012-TIOL-300-CESTAT-MAD

Areva T & D India Ltd Vs CCE, Chennai (Dated : December 9, 2011)

Central Excise – Supplementary Invoice - Price Revision of Goods with Retrospective Effect – Payment of differential Duty for clearance of goods through Supplementary Invoice – Interest is payable under Section 11AB of the Central Excise Act, 1944 – Issue no longer res integra in view of Supreme Court Decision in Commissioner Vs. SKF India Ltd.

Also see analysis of the Order

2012-TIOL-298-CESTAT-MUM

M/s Simplex Infrastructures Ltd Vs CCE, Belapur (Dated : November 1, 2011)

Merely because the Ready Mix Concrete has been transported by using dumpers from the Batching Plant installed at the site to various places in the site, it does not mean that the goods are not produced at the construction site - Notfn. 4/97-CE does not prescribe any spatial dimensions/restrictions for the site - prima facie benefit of notification available - Pre-deposit waived and recovery stayed: CESTAT [para 5] Also see analysis of the Order

2012-TIOL-297-CESTAT-DEL

Shree Sharma Steel Re-Rolling Mills Pvt Ltd Vs CCE, Jaipur (Dated : December 8, 2011)

Central Excise - Clandestine Clearances - Private Records - Confessional Statement - Electricity consumption record - Admissibility of evidence - Financial Hardship - Stay / Dispensation of pre-deposit - Assessee claims that the clearances recorded in private records are traded goods. No such claim made in the statements given or evidence produced to show purchase of traded goods. Further, demands based on electricity consumption is as per the record maintained by the assessee and is supported by other documents too. Prima facie no case made out for complete waiver of pre- deposit. Keeping in view the financial hardships and the interest of Revenue as provided under Section 35F of the Central Excise Act, 1944, pre-deposit of Rs. 6 crore is ordered. (Para 16, 17 & 21)

Conditions for grant of stay - While granting stay the two aspects to be considered are 'un-due hardship' and 'interests of revenue'. Undue-hardship means a burden hard to observe or perform in the circumstances of the case – In the present case, interest of revenue is to be safe-guarded and necessary conditions must be laid out before granting stay. (Para 20)

2012-TIOL-289-CESTAT-BANG

M/s Micro Labs Ltd Vs CCE, Bangalore (Dated : September 29, 2011)

Central Excise - Stay/Application for waiver of pre-deposit - Denial of CENVAT Credit on inputs procured from 100% EOU - Credit available as per formula prescribed in terms of Rule 3(7)(a) of CENVAT Credit Rules, 2004 - Whether credit is restricted to BCD ‘leviable' or ‘actually paid' - Issue debatable in as much as no case law exists on the said issue - No prima facie case made out for full waiver of pre-deposit - Pre- deposit of 50% of dues ordered - Section 35F of Central Excise Act, 1944

2012-TIOL-288-CESTAT-BANG

M/s Nishant Mouldings (P) Ltd Vs CCE, Bangalore (Dated : September 23, 2011)

Central Excise - Stay/Application for waiver of pre-deposit - Default in payment of duty for the months of October to December 2009 resulting in direction to pay consignment wise in PLA under Rule 8(3A) and barring of utilization of CENVAT Credit - Penalty levied under Rule 25 of Central Excise Rules, 2002 - Expression "subject to the provisions of Section 11AC of the Act" in the opening part of Rule 25 does not mean that prerequisites of section 11AC should be established by department to impose penalty under the Rule - In the instant case, no penalty was even proposed under Section 11AC and Rule 25 would get attracted unaffected by section 11AC inasmuch as appellant admittedly committed default in payment of duty and also chose to utilize CENVAT credit for payment of duty on their final product in contravention of Rule 8(3A) - Appellant directed to pre-deposit Rs. 2,000/- - Section 35F of Central Excise Act, 1944 - Rule 25 of Central Excise Rules, 2002 read with Section 11AC of Central Excise Act, 1944

2012-TIOL-285-CESTAT-MUM

Bombay Dyeing & Mfg Co Ltd Vs CCE, Raigad (Dated : November 16, 2011)

Rebate received paid back along with interest and Cenvat Credit taken subsequently – refund claim filed under rule 5 of CCR, 2004 regarding accumulated Cenvat Credit – prima facie case in favour – unconditional waiver of pre-deposit granted: CESTAT [para 7]

Also see analysis of the Order

2012-TIOL-284-CESTAT-BANG

CCE, Hyderabad Vs M/s Samrakshana Electricals Ltd (Dated : September 23, 2011)

Central Excise – Duty paid capital goods received in January 2006 returned to supplier in April 2006 after payment of duty equivalent to CENVAT Credit availed – Assessee raised invoices once again in February 2007 in r/o said capital goods and paid duty – Assessee later took suo motu credit of an amount equivalent to such duty paid but reversed credit on two invoices subsequently – Demand raised for recovery of credit taken suo motu by invoking extended period of limitation, set aside by Appellate Commissioner – As assessee informed department of availing credit suo motu in May 2009, SCN issued in October 2009 within limitation, Appellate Commissioner's finding to this effect liable to be set aside – No clear finding by original authority as to whether capital goods were returned to supplier by respondent-assessee on payment of duty, whether by way of debit in CENVAT A/c or otherwise – If clearances were made on payment of duty, then the cash payment made under the invoices in February 2007 amounts to double payment, in which case, the normal remedy is refund under Section 11B – Matter remanded to original authority to verify facts and decide case afresh on merits

2012-TIOL-277-CESTAT-DEL

M/s Natraj Plast Industries Ltd Vs CCE, Delhi-I (Dated : July 4, 2011)

Central Excise - Clandestine Clearances - Evidentiary value of statement - Demand - Penalty - Evidence in form of statements of the persons concerned have not been retracted and are inculpatory in nature. Statements recorded by gazetted officers of Central Excise under Section 14 of the Central Excise Act, 1944, have to be treated as substantive evidence. Statements of Director admitting illicit diversion of major quantity of CP1725G resin to various dealers are corroborated by statements of recipients, transporters etc. Clandestine clearances stand proved. The quantity of clandestine clearance on which department has strong footing needs to be accepted. Penalty under Rule 26 stands reduced. (Para 4 & 5.1)

2012-TIOL-268-CESTAT-MUM

U V laboratories Vs CCE, Thane-II (Dated : October 7, 2011)

Central Excise - SSI Exemption - Clubbing of clearances of goods manufactured on own account and on loan-license basis - Availing of duty free exemption limit for own goods and Modvat facility for goods manufactured on loan-license basis - The value of the clearances made by the assessee on behalf of loan licensee are to be clubbed for the purpose of paying duty under Notification Nos.1/93-CE and No. 7/97-CE. The assessees have the option to pay duty/avail Modvat facility or avail the duty free clearances in respect of the Notifications and they cannot avail both the facilities simultaneously. (Para 15)

2012-TIOL-264-CESTAT-DEL

CCE, Delhi-I Vs Prakash Brassware Industries (Dated : July 14, 2011)

Central Excise - Classification of Shower, Bottle Trap, Soap Dish, Shower Arm, Spouts, Toilet Paper Holder, Traps, Towel Rings, Towel Racks, Brush & Paste Holder, Robe Hooks, Tumbler Holders and Grab Bar of Brass- Classification of brass towel rings, towel racks and robe hooks under sub-heading 83.02 and of brass tumbler holder under 7418.10 of the Tariff is upheld - Grab bar is more like base metal falling under heading 83.02. Bottle trap & waste part is accessory of wash basin, which is a sanitary ware and, hence, would be correctly classifiable as part of brass sanitary ware under sub-heading 7418.90. (Para 7, 8 & 9)

2012-TIOL-263-CESTAT-DEL

CCE, Chandigarh Vs Punjab Lighting Aids Pvt Ltd (Dated : June 7, 2011)

Central Excise - CENVAT – Drawing of wire - Denial of credit - Wires had been received by the assessee during the period from August, 2003 to 08.07.04, i.e., during the period for which the 1st and 2nd provisos had been added to sub-rule (3) to Rule 16, under which, the amount paid by the manufacturer suppliers of wire on the clearance of wire has to be treated as duty and assessees who had received the wire would be eligible for its CENVAT credit. If the wire manufacturers had obtained refund of the duty paid by them on the wire, the assessee would not be eligible for CENVAT credit. Hence, the matter is remanded to the original adjudication authority. (Para 6 & 7)

2012-TIOL-259-CESTAT-BANG M/s Cheekatla Polymers (P) Ltd Vs CCE, Hyderabad (Dated : September 29, 2011)

Central Excise – Stay/Application for waiver of pre-deposit – Goods cleared without payment of duty by availing benefit of Notification No. 6/06-CE - Non-availability of notification benefit conceded by appellant but demand contested on grounds of limitation - ER-1 returns filed without notification details but RO entered particulars of notification in the returns – Annexure-45 against which goods were cleared furnished to jurisdictional RO – RO's letter directing appellant to pay 10% amount in terms of Rule 6(3) available on record and which was honoured by appellant and the said amount having been adjusted against the demand – Prima facie no case for invoking extended period of limitation – Pre-deposit waived and stay granted – Section 35F of Central Excise Act, 1944 – Notification No. 6/06-CE dated 01.03.2006

2012-TIOL-255-CESTAT-MAD

Ellen Ferrous Castings Pvt Ltd Vs CCE, Coimbatore (Dated : October 21, 2011)

Central Excise - Stay/Dispensation of pre-deposit - CENVAT Credit - Reasonable steps before availing credit - Prima facie, the assessees cannot be said not to have taken all possible precautions to ensure that the goods described in the invoices tallied with the goods received by them – Appellants cannot be faulted if there is any fraud on the part of the suppliers – Prima facie case has been made out for waiver of pre-deposit.

2012-TIOL-252-CESTAT-MAD

CCE, Tirunelveli Vs M/S Sundaravel Fireworks Industries Ltd (Dated : September 29, 2011)

Central Excise – Appeal – Monetary Limit for filing Appeal – The amount involved in the matter being less than 5 lakhs prescribed by the Board for filing appeal, appeal dismissed as not maintainable. (Para 2)

2012-TIOL-246-CESTAT-MAD

CCE, Chennai Vs Triogene Labs Pvt Ltd (Dated : October 12, 2011)

Central Excise – SSI Exemption – Brand name – Rural Area – The jurisdictional Tahsildar has certified that Okkiyam Thuraipakkam is a rural village in which the factory is located. Hence, benefit of SSI exemption is allowed. (Para 2)

2012-TIOL-237-CESTAT-AHM

M/s Diamond Tools Pvt Ltd Vs CCE, Rajkot (Dated : November 23, 2011) Central Excise - CENVAT - Inputs received from 100% EOU - Extent of CENVAT credit available - Applicability of Section 11A (2B) - Reduced Penalty under Section 11AC - The assessee in excess of the cenvat credit of Central Excise duty portion availed the cenvat credit of customs duty portion for inputs received form 100% EOU. The assessee paid the wrongly availed credit along with interest. Assessee seeks applicability of Section 11A (2B).

HELD - Persons availing credit have to ensure that at least credit is not taken over and above what is shown in the invoices. Assessee not being new to Central Excise, Section 11A (2B) not applicable. However, as no option given in the order-in-original to pay 25% penalty if duty along with interest within 30 days of passing the order, the same is now extended. (Para 3 & 4)

2012-TIOL-236-CESTAT-MAD

M/s Ashok Leyland Ltd Vs CCE, Chennai (Dated : October 14, 2011)

Central Excise - Penalty under Section 11 AC - Authorities below have not given the option of paying 25% of the penalty as provided under Section 11 AC – Request of the appellant to allow 10 days time to pay the 25% of the penalty is allowed in view of the Delhi High Court order in case of K.P.Pouches Pvt Ltd.

2012-TIOL-231-CESTAT-MAD

CCE, Salem Vs M/s Shanmugarajan Spinning Mills Pvt Ltd (Dated : September 23, 2011)

Central Excise - Principles of natural justice - Cross examination as directed by the remand order of the Tribunal was not allowed by the Adjudicating Authority on the ground that the whereabouts of the witness were not known - Commissioner (Appeals) is correct in finding that non-implementation of the remand order has resulted in violation of the principles of natural justice.

2012-TIOL-228-CESTAT-MAD

M/s ABI Turnamatics Vs CCE, Chennai (Dated : October 7, 2011)

Central Excise – Stay/Dispensation of pre-deposit – 100% EOU – DTA sale – The appellants exported “Turbine Wheels” and cleared “Bearing Housing Assembly” in DTA – Prima facie, goods cleared in DTA are not similar to the goods exported - Similar goods are goods which although not alike in all respects have like characteristics and like component material which enable them to perform the same function and make them commercially interchangeable - Similar goods are also expected to have similar quality, reputation and trademark - Prima facie, Bearing Housing Assembly and Turbine Wheels have different characteristics; different functions and they are not commercially interchangeable – 50% of the duty amount ordered to be deposited. 2012-TIOL-224-CESTAT-MAD

CCE, Salem Vs M/s JSW Steels Ltd (Dated : September 23, 2011)

Central Excise – CENVAT Credit – Whether lancing pipes are inputs or capital goods – In view of the decision of the Larger Bench of the Tribunal, lancing pipes are to be regarded as input used in relation to manufacture and 50% restriction is not applicable for taking credit.

2012-TIOL-217-CESTAT-DEL

M/S ECE Industries Limited Vs CCE, Rohtak (Dated : July 8, 2011)

Central Excise - Refund - Reduction in invoice value after clearance of goods on account of price-variation clause - Whether the assessees are entitled for refund of the duty due to reduction in price on account of price variation clause after the clearance of goods.

HELD - As per Section 4, valuation is directly related to the time of removal and place of removal. The duty element is to be determined on the basis of time of removal of the goods, which is issuance of invoices. There is no provision under the Act where it is provided that in spite of payment of duty in terms of the price disclosed in the invoices at the time of clearance of the goods if subsequently lesser amount is received by the manufacturer in relation to such goods then the manufacturer would be entitled for reduction in the duty liability in relation to such goods and on that count for refund of the difference in the amount of duty. (Para 13 & 14)

2012-TIOL-216-CESTAT-DEL

M/s Ghatampur Sugar Co Ltd Vs CCE, Kanpur (Dated : April 28, 2011)

Central Excise - Refund - Adjustment of arrears of revenue - Whether letter of Superintendent can be considered as a demand notice - Letters issued by the Superintendent of Central Excise cannot be treated as demands confirmed against the assessees. In the absence of evidence showing that there were confirmed demands pending against the assessee, adjustment out of refund sanctioned is not legal and proper. The amount so adjusted should be released. (Para 5.3 & 6)

2012-TIOL-211-CESTAT-MAD

M/s BHEL Vs CCE, Trichy (Dated : September 8, 2011)

Central Excise - Stay/Dispensation of pre-deposit - Demand of duty by denying exemption under Notification No 67/95 CE on the ground that the finished goods are supplied without payment of duty under International Competitive Bidding Project - Prima facie case has been made out for waiver of pre-deposit as the case of the appellant is covered under clause (vii) of Rule 6 (6) of the CENVAT Credit Rules, 2004.

2012-TIOL-210-CESTAT-MAD

M/s Spel Semiconductors Ltd Vs CCE, Chennai (Dated : September 28, 2011)

Central Excise – EOU – Refund of service tax paid on Technical Testing and Analysis used in the manufacture of final products exported – Refund claims filed under Rule 5 of the CENVAT Credit Rules cannot be rejected on the ground that in respect of Technical Testing and Analysis, refund claim cannot be claimed except under Notification No 41/2007 ST dated 6.10.2007 – There is no restriction under Rule 5 of the CENVAT Credit Rules to claim refund on such services and the appellant cannot be prevented from claiming refund of unutilized CENVAT credit in respect of any input or input services, if such refund is otherwise due – Matter remanded to the original authority to consider the original claim of the appellants. ice, both these items would stay outside the ambit of the definition of "input" also.

2012-TIOL-204-CESTAT-BANG

Paragon Polymer Products Pvt Ltd Vs CCE, Hyderabad (Dated : September 20, 2011)

Central Excise – Application for modification of CESTAT Final order – Final order passed by the Bench neither indicates that penalty related issue was debated nor was it open for debate – However, to make it more clear, operative part of final order of Tribunal modified accordingly

2012-TIOL-203-CESTAT-BANG

CCE, Hyderabad Vs M/s Ocean Pharmacoat Pvt Ltd (Dated : September 30, 2011)

Central Excise – Stay application of Revenue – Eligibility of CENVAT Credit of SAD paid on imported goods through DEPB credit – Board Circular No. 27/06-Cus clarifies that customs duty paid through cash or debit in certificate issued under DFCE/Target Plus scheme could be availed as CENVAT credit or duty drawback – Though this Circular does not refer to DEPB, one of the conditions of Notification No. 32/05-Cus clearly entitles importers to avail CENVAT Credit of additional duty paid under section 3 of Customs Tariff Act, 1975 – No dispute that notification was not amended to exclude SAD from its purview when new levy was introduced vide Notification No. 19/06-Cus – Prima facie no case made out by Revenue for grant of stay – Rule 3 of CENVAT Credit Rules, 2004 – Section 129E of Customs Act, 1962

2012-TIOL-197-CESTAT-BANG M/s GTN Industries Ltd Vs CCE, Hyderabad (Dated : October 14, 2011)

Central Excise - Stay/Application for waiver of pre-deposit - Eligibility of credit on capital goods used in manufacture of dutiable and exempted final products - Appellant manufactured and cleared a part of their production for export on payment of duty and under claim for drawback and a part of clearance to DTA claiming benefit of exemption under Notifications 29/04-CE and 58/2008-CE - Prima facie, capital goods used for manufacture of both dutiable and exempted products not covered by Rule 6(4) of CENVAT Credit Rules, 2004, appellant eligible to claim CENVAT credit - Pre- deposit waived and stay granted - Rule 6(4) of CENVAT Credit Rules, 2004 - Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994

2012-TIOL-196-CESTAT-MUM

S C Enviro Agro India Pvt Ltd Vs CCE, Thane (Dated : December 2, 2011)

Arranging of celebrities for promotion and publicity is not an advertisement agency service prior to 01.07.2003 - Strong prima facie case - Pre-deposit waived and Stay ordered: CESTAT [para 4]

Also see analysis of the Order

2012-TIOL-192-CESTAT-BANG

M/s Hindustan Petroleum Corporation Ltd Vs CCE, Visakhapatnam(Dated : October 19, 2011)

Central Excise – Stay/Application for waiver of pre-deposit – Demand of excise duty under section 11D for the period from August 1998 to October 1999 – Permission for storage of both imported and indigenous petroleum products as mixed bonded stock in bonded storage tanks – Appellant collecting duty on administered price of products cleared from the bonded tanks, representing Central Excise duty on all clearances irrespective of the origin of goods, whether indigenous or imported – Excess duty collected from customers deposited with oil pool account of Central Government – Matter related to liability for payment of excise duty on customs duty paid goods pending with Larger Bench due to conflicting decisions from Coordinate Benches of Tribunal– Prima facie case for full waiver of pre-deposit – Sections11D and 35F of Central Excise Act, 1944

2012-TIOL-187-CESTAT-BANG

M/s Ashirvad Pipes Pvt Ltd Vs CCE, Bangalore (Dated : September 30, 2011)

Central Excise - Supplies made to SEZs are exports, provisions of Rule 6 of CENVAT Credit Rules, 2044 not applicable - Demand of duty with interest and levy of penalty set aside - Rule 6 of CENVAT Credit Rules, 2004 2012-TIOL-181-CESTAT-BANG

M/s S P Fabricators Pvt Ltd Vs CCE, Bangalore (Dated : October 14, 2011)

Central Excise – Stay/Application for waiver of pre-deposit – Recovery of CENVAT Credit on inputs used in goods cleared to SEZ Developer – Clearances to SEZ under export documents to be treated as exports – Prima facie case for full waiver of pre- deposit – Rules 3(5), 6 and 9 of CENVAT Credit Rules, 2004 – Section 35F of Central Excise Act, 1944

2012-TIOL-175-CESTAT-BANG

CCE, Tirupathi Vs M/s The India Cements Ltd (Dated : September 30, 2011)

Central Excise – Goods cleared to SEZs are deemed exports, not to be regarded as exempted goods – Rule 6 (3) of CENVAT Credit Rules, 2004 not applicable – Rule 6 (3) of CENVAT Credit Rules, 2004 – Impugned order sustained

2012-TIOL-173-CESTAT-BANG

M/s Surana Steels Ltd Vs CCE, Hyderabad (Dated : September 26, 2011)

Central Excise – Duty liability settled vide previous order of Tribunal with a direction to lower authority to re-quantify liability – Plea of limitation not raised earlier, but raised for the first time in the current appeal, not accepted – No specific challenge against order of penalty imposed by Appellate Commissioner under Rule 173Q, penalty upheld – Impugned order sustained – Rule 173Q of Central Excise Rules, 1944 read with Section 11A of Central Excise Act, 1944

2012-TIOL-169-CESTAT-DEL

CCE, Lucknow Vs M/s Alvi Packaging Industries Ltd (Dated : December 16, 2011)

Central Excise - Allegation of clandestine removal of tapes - Documentary evidences in the form of duplicate invoices, cancelled invoices etc available to prove clandestine removal - Clandestine removals proved on the basis of pre-ponderance of probability - Impugned order of Appellate Commissioner set aside and order of lower authority demanding duty restored - Assessee provided with opportunity to pay 25% of penalty in terms of proviso to s. 11AC 2012-TIOL-164-CESTAT-BANG

Yash International Vs CC & CCE, Hyderabad (Dated : September 15, 2011)

Central Excise – Appeals dismissed by Appellate Commissioner for non-compliance of order of pre-deposit – When assessee paid entire amount of duty, education cess and interest along with 25% of duty and cess towards penalty within 30 days of receipt of SCN, no further pre-deposit required by assessee or managing partner – Appellate Commissioner to hear appeal on merits – Impugned order set aside – Section 35F of Central Excise Act, 1944

2012-TIOL-163-CESTAT-MAD

M/s Madura Coats Private Ltd Vs CCE, Madurai (Dated : September 16, 2011)

Central Excise - Interest on delayed refund -Application for refund was filed on 26.03.2002 and refund was finally granted on 29.10.2010 after a favourable order from the Tribunal - Three month period for grant of refund is to be calculated from the date of making an application for refund, i.e., 26.03.2002 and not from the date of sanction subsequently - Appellants are entitled for interest after expiry of three months from 26.03.2002.

2012-TIOL-159-CESTAT-MAD

M/s Diab Core Materials Pvt Ltd Vs CCE, Chennai (Dated :September 28, 2011)

Central Excise – CENVAT Credit taken wrongly – Liability to pay interest – Contention that the appellant had sufficient credit balance is not acceptable in view of the Supreme Court's decision in case of Ind Swift Laboratories – Appellants are liable to pay interest.

Penalty – Appellants have wrongly taken credit of Rs 1.08 crores – Penalty imposed is less than 1% - Penalty is reasonable and do not require any reduction.

2012-TIOL-158-CESTAT-MUM

Mercury Pneumatics Pvt Ltd Vs CCE, Thane (Dated : December 1, 2011)

Sales associates/agents performing certain post clearance services to and on behalf of the appellant manufacturer are being given a higher discount of 20% as against the normal trade discount of 5% to 15% which are given to customers of the appellants - prima facie such discounts given to the sales agents cannot be completely abated while determining the transaction value under new section 4 of the CEA, 1944 – Pre- deposit ordered of 50% demand: CESTAT [para 6] 2012-TIOL-154-CESTAT-MAD

ITC Ltd Vs CCE, Salem (Dated : October 12, 2011)

Central Excise - Stay/Dispensation of pre-deposit - Valuation - Related person - Goods sold not only to the related persons, but also to independent buyers - Prima facie strong case has been made out for unconditional waiver of pre-deposit - Rule 8 of Central Excise valuation Rules, 2000.

2012-TIOL-149-CESTAT-MUM

Rotomatic Containers Pvt Ltd Vs CCE, Nashik (Dated : October 31, 2011)

Plastic tanks used in agricultural/horticulture appliances for spraying purpose – whether classifiable under chapter 8424 as parts for agriculture purpose or under chapter 39 as contended by department – issue is debatable – as activity of applicant was well within the knowledge of the department since 2005 itself, on limitation itself applicants have a case – Pre-deposit waived and stay granted. [para 6, 7]

2012-TIOL-148-CESTAT-MUM

M/s Time Pharma Vs CCE, Thane (Dated : December 19, 2011)

Dental Care Products/Tooth Paste - whether classifiable as P&P medicaments under 3003.10 or under 3306.10 of the CETA, 1985 as Cosmetics or Toilet preparations - no evidence adduced to prove that the product is a drug which needs prescription from a Doctor - applicant has failed to make a prima facie case - Pre-deposit ordered of 50% of adjudged dues for getting stay: CESTAT [para 7.3, 8]

2012-TIOL-144-CESTAT-MUM

Cromption Greaves Ltd Vs CCE, Mumbai (Dated : December 20, 2011)

Taking of suo moto credit - As appeal against LB decision in BDH Industries Ltd. has been admitted by the Bombay High Court balance of convenience lies in applicant's favour - Stay granted and pre-deposit waived: CESTAT [para 4]

Also see analysis of the Order 2012-TIOL-140-CESTAT-MUM-LB

Bharat Petroleum Corporation Ltd Vs CCE, Mumbai (Dated : January 16, 2012)

Availment of balance 50% credit on capital goods - If the capital goods are lying in the factory for installation and the process of erection was being carried out then it has to be considered as satisfying the meaning of the term ‘capital goods are in possession and use of the manufacturer' – CESTAT Larger Bench [ para 10 ]

Also see analysis of the Order

2012-TIOL-139-CESTAT-AHM

M/s Agro Pack Vs CCE, Surat (Dated : November 3, 2011)

Central Excise - Appellant purchased and supplied corrugated boxes to pet bottle manufacturer for packing pet bottles after availing CENVAT Credit - Corrugated boxes cleared directly from supplier to pet bottle manufacturer - Pet bottle manufacturer included value of corrugated boxes supplied free of cost while discharging duty liability on pet bottles - Appellant availed credit of duty paid on pet bottles used in their manufacturing process - Allegation of availment of CENVAT credit on packing materials viz., corrugated boxes twice - Value of corrugated boxes shown separately in invoices of pet bottle manufacturer to make it clear that value of goods supplied free of cost by buyer-appellant was added to value of pet bottles, is in accordance with law - No finding that credit of duty taken by appellant was not paid by them to the suppliers or suppliers have not paid the duty shown in their invoice - If credit has been taken twice, first time on the corrugated boxes themselves and second time as part of pet bottles (being used as their packing materials), it cannot be said that appellants have taken credit twice - Allegation of suppression of facts, fraud etc also not sustainable - CENVAT Credit Rules, 2004

2012-TIOL-133-CESTAT-MUM

M/s Automotive Stampings And Assemblies Ltd Vs CCE, Pune (Dated : February 21, 2011)

Assessee availing the benefit of pre-payment of the amount of deferred sales taxes as per the provisions of Maharashtra Sales Tax Act, 1959 - Once the entire amount of deferred payment of sales tax has been pre-maturely paid, such payments, in the public interest, are considered as in discharge of deferred balance Sales Tax – definition of transaction value as under s.4 of the CEA, 1944 gets attracted – Prima facie case – Waiver of pre-deposit - Stay granted: CESTAT

Also see analysis of the Order

2012-TIOL-132-CESTAT-AHM M/s Modern Petrofils Vs CCE, Vadodara (Dated : June 10, 2011)

Central Excise - National Calamity Contingent Duty - Demand of NCCD in respect of clearance of Partially Oriented Yarn (POY) to 100% EOUs and for captive consumption - NCCD is not leviable in respect of goods cleared to 100% EOU availing the benefit of Notification No. 108/95-CE dated 28.8.95. NCCD also not leviable in respect of clearance for captive consumption. (Para 5)

2012-TIOL-128-CESTAT-DEL

M/s Gopal Sponge & Power Pvt Ltd Vs CCE, Raipur (Dated : December 2, 2011)

Central Excise - CENVAT - Goods used in manufacture of capital goods - In view of the decision of the Apex Court in Commr. Of C. Ex., Jaipur vs. Rajasthan Spinning & Weaving Mills Ltd. - 2010-TIOL-51-SC-CX matter remanded to the original authority to examine the matter afresh. (Para 5)

2012-TIOL-125-CESTAT-KOL

CCE, Kolkata Vs M/s Electro Steel Castings Ltd (Dated : July 27, 2011)

Central Excise – Demand of differential duty on additional income shown in balance sheet of assessee arising out of transportation/freight charges – No conclusive evidence shown by Revenue to suggest that transportation charges collected had any connection to depressed price of goods supplied under DGS & D contracts – No infirmity in order of Appellate Commissioner – Rule 5 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 read with Section 4 of Central Excise Act, 1944

2012-TIOL-123-CESTAT-AHM

CCE, Vadodara Vs M/s Gujarat Flouro Chemicals Ltd (Dated : November 25, 2011)

Central Excise – CENVAT Credit of service tax paid on outward transport – Credit is admissible in view of the Karnataka High Court judgment in case of M/s ABB limited.

Liability to pay service tax on commission paid to overseas commission agents – No liability arises before insertion of Section 66A in the Finance Act, 1994 with effect from 18.4.2006.

2012-TIOL-122-CESTAT-MUM Hino Motors Sales India Private Limited Vs CCE, Thane (Dated : November 21, 2011)

Applicant importing motor vehicle chassis and after undertaking certain process on the chassis which are essential as per the Motor Vehicle Rules sending the chassis to a job worker for body building and return thereof - Taking credit of CVD paid on chassis and paying duty on the vehicle by treating the same as ‘manufacturing activity' objected to by Dept – no cause for denial of Cenvat Credit – Stay granted: CESTAT [para 10, 11]

Also see analysis of the Order

2012-TIOL-121-CESTAT-KOL

M/s Ganges Manufacturing Co Ltd Vs CCE, Kolkata-IV (Dated : July 27, 2011)

Central Excise – Valuation – Allegation of clearance of jute products through consignment agents based on factory gate price adopted for independent buyers and that consignment agents sold the goods at higher prices – With regard to clearances upto September 28, 1996, normal price charged to independent buyers becomes the value on which duty is payable – Consignment agent premises not being a ‘place of removal' price charged by consignment agent cannot be regarded as normal price for discharge of duty – With regard to clearances post September 28, 1996, price charged by consignment agent to be regarded as value for discharge of duty as consignment agent premises is considered as ‘place of removal' – Matter remanded to original authority to correctly quantify the duty liability and impose penalty – Appellants at liberty to produce evidences for calculation of correct duty liability – Amount to be paid after re-quantification to be adjusted by lower authority against any excess duty already paid by appellant – Erstwhile Section 4 of Central Excise Act, 1944

2012-TIOL-113-CESTAT-AHM

CCE, Surat Vs M/s Classic Industries Ltd (Dated : November 29, 2011)

Central Excise – Valuation – Allegation of undervaluation of goods cleared to trading firms during the period from December 1996 to March 1997 and trading firms having cleared the same at higher value – Evidences adduced by respondent-assessee indicate that goods were cleared to trading firms as well as independent buyers at more or less the same price by discharging duty liability – Revenue did not dispute the said findings of first appellate authority, which would mean that there was no under- valuation – Impugned order does not suffer from any infirmity, held as legal and proper

2012-TIOL-112-CESTAT-AHM

CCE, Surat Vs M/s Shree Khedut Sahakari Khand Udyog Mandli Ltd (Dated : November 21, 2011) Central Excise - CENVAT Credit - Valid document - Credit availed on the strength of insurance policy which contains the details of service tax paid - Credit cannot be denied on the ground that it is not a valid document - What is required to be seen is whether the document on the basis of which credit has been taken, shows all the necessary details or not and where the document does not contain all the details, whether it is covered by provisions which empowers proper officer to allow the credit even when there are deficiencies - Revenue appeal has no merit- Rule 9 of the CEVNAT Credit Rules, 2004.

2012-TIOL-111-CESTAT-AHM

M/s Unitech International Ltd Vs CCE, Vapi (Dated : December 11, 2011)

EOUs - Manufacture - LOP given by the Development Commissioner, SEEPZ, Mumbai for segregation of ferrous and non-ferrous scrap or Computer and Electric scrap - The said activity was considered as an activity of manufacture by the authorities - A unit engaged in segregation activity, which was set up prior to 1.4.02 would be continued to be treated as manufacturing concern, as for the entire period original LOP, for the purpose of fulfillment of export obligation - Demand of customs duty on DTA clearances by treating the process as not amounting to manufacture is not sustainable.

Rate of duty applicable on DTA clearances - Benefit of Notification No 21/2002 Cus is admissible to the EOU - Benefit cannot be denied on the ground that the end use certificates have been produced at a later date - Such narrow view taken by the lower authorities is incorrect.

2012-TIOL-108-CESTAT-MUM

M/s Harinagar Sugar Mills Ltd Vs CCE, Mumbai (Dated : November 30, 2011)

It is evident from the excise records that the amount sought to be claimed as refund by the appellants was paid as union excise duty - provisions of unjust enrichment under Sec.11B of the Central Excise Act are squarely applicable and since the appellants are not able to prove that the burden of the amount claimed by them as refund has not been passed on to their consumers, the refund has rightly been rejected: CESTAT [ para 9 ]

Also see analysis of the Order

2012-TIOL-107-CESTAT-AHM

M/s ESS ELL Cables Company Vs CCE, Vapi (Dated : November 24, 2011)

Central Excise – Eligibility of CENVAT Credit of CVD paid on imported ‘super enamelled copper wire' used in manufacture of ‘super enamelled copper wire' and ‘submersible Winding wire' – Credit denied on the ground that appellant was not engaged in any ‘manufacturing activity' – Statement recorded from Power of Attorney holder of appellant-company clearly spelt out a detailed manufacturing process undertaken by them, which can be construed as an ancillary or incidental process for manufacturing final product viz., ‘super enamelled copper wire' or ‘submersible winding wire' – Adjudicating authority did not consider this important piece of evidence while deciding the case – Detailed manufacturing process outlined in the statement of Power of Attorney holder in consonance with CENVAT Credit Rules, 2004 i.e. manufacturer using inputs ‘in' or ‘in relation' to manufacture of final products – Appellant eligible for CENVAT credit of CVD paid on imported copper wire – Impugned order set aside – Rule 3 of CENVAT Credit Rules, 2004 read with section 2(f) of Central Excise Act, 1944

2012-TIOL-104-CESTAT-AHM

M/s Repute Polymers Pvt Ltd Vs CCE, Rajkot (Dated : November 21, 2011)

Central Excise - Penalty - Clandestine clearance of goods under delivery challans admitted - Lower authority confirmed duty liability with mandatory penalty and interest - Lower appellate authority accepted appellant's plea for considering value as cum-duty price and directed re-quantification of duty but denied benefit of paying 25% penalty under provisions of section 11AC - When appellant deposited entire amount of re-quantified duty with interest, benefit of restricting mandatory penalty to 25% of duty allowable in terms of Gujarat High Court decision in Akash Fashion Prints (P) Ltd 2009-TIOL-125-HC-AHM-CX - As appellant already paid duty liability with interest including mandatory penalty equivalent to 25% of duty liability, lower authority directed to consider all the payments made by appellant till date and refund excess of payments, if any - Section 11AC of Central Excise Act, 1944

2012-TIOL-99-CESTAT-BANG

M/s Chandana Plastics Vs CCE, Visakhapatnam (Dated : August 11, 2011)

Central Excise - Refund - Claim of refund of unutilized MODVAT credit - Refund claim filed for credit which remained unutilized and eventually lapsed on 01.04.1999 after switching over to SSI exemption scheme - No justification by appellant to substantiate refund claim of balance of credit which lapsed on 01.04.1999 - Rule 57H of Central Excise Rules, 1944

2012-TIOL-91-CESTAT-MUM

Reshma Organics Pvt Ltd Vs CCE, Belapur (Dated :October 5, 2011)

Purification of hexane to various grades – whether amounts to manufacture – in view of Tribunal decision in Bharat Dye-Chem Industries in a similar situation where treatment of petroleum products by sulphuric acid and sodium carbonate solution and water fractional distillation are undertaken, the Bench had granted the waiver of pre- deposit, same followed and stay petition allowed. 2012-TIOL-89-CESTAT-BANG

M/s Ring Forgings (P) Ltd Vs CCE, Bangalore (Dated : August 26, 2011)

Central Excise – Demand notice issued for recovery of CENVAT Credit availed on defective finished goods returned for re-processing into defect free goods cleared on payment of excise duty – SCN issued on the ground that assessee could not prove that fresh products cleared on payment of duty were manufactured out of defective goods returned earlier – Proceedings dropped by original authority were set aside by Appellate Commissioner on appeal from Revenue – Findings of original authority which were based on verification of records maintained by assessee not cogently challenged before Appellate Commissioner – Appellate Commissioner's finding that Rule 16 not applicable to a case where duty paid defective goods returned by buyer was recycled, travels beyond the scope of show cause notice – It is not the case of Revenue that Rule 16 not applicable to a case where defective goods returned by buyer are subjected to a process of remaking defect free product – Impugned order set aside – Rule 16 of Central Excise Rules, 2002

2012-TIOL-88-CESTAT-BANG

CCE, Mangalore Vs M/s Parbhudas Kishoredas Tobacco Products Pvt Ltd (Dated : August 16, 2011)

Central Excise – Classification of Biris – Manufacture of tendu leave rolled biris – Process of cutting and printing of packing material for biris undertaken by job workers with aid of machines – Rolling and other processes involved in the manufacture of biris per se are not carried out with the aid of machines – Even if labels/wrappers are manufactured with the aid of machines by job workers, biris to be classified under Chapter 2403 10 31 as biris manufactured without aid of machines – Board Circular No. 840/17/2006-CX., dated 6-12-2006 followed – No valid reason to interfere with impugned order of Commissioner

2012-TIOL-82-CESTAT-MUM

Cipla Ltd Vs CCE, Mumbai (Dated : October 25, 2011)

If capital goods are cleared after use then it cannot be considered as cleared ‘as such' – seeking reversal of credit initially availed is not proper – Applicants have strong prima facie case – Pre-deposit of duty, interest and penalty waived and stay granted: CESTAT [para 3,4]

Also see analysis of the Order

2012-TIOL-77-CESTAT-MUM

CCE, Thane Vs Classic Stripes Pvt Ltd (Dated : October 5, 2011) Self-adhesive stickers are not products of the printing industry (chapter 49) – classifiable under heading 3919 of the CETA, 1985 and respondent assessee fairly agrees – however, since goods cleared after filing of classification list, no cause for imposition of penalty – Revenue appeal allowed. [para 4]

2012-TIOL-74-CESTAT-DEL

M/s Simbhaoli Sugars Ltd Vs CCE, Meerut (Dated : May 6, 2011)

Central Excise - CENVAT - M.S. Angles, Shapes and Sections, M.S. Plates used for erection of supporting structures - Eligibility - Invocation of extended period - Stay / Dispensation of pre-deposit - The availment of CENVAT on M.S. Angles, Shapes and Sections, M.S. Plates is declared in the ER-1 return. Prima facie case made out against invocation of extended period. Stay granted. (Para 7)

2012-TIOL-71-CESTAT-BANG

M/s M M Cylinders (P) Ltd Vs CCE, Tirupathi (Dated : September 6, 2011)

Central Excise – Valuation – Inclusion of freight charges in the assessable value of new LPG cylinders – With change in mode of pricing of cylinders by PSU oil marketing companies, MD and Director of appellant-companies along with relatives formed a partnership firm to set up a transport company to exclusively transport all finished goods by deliberately manipulating freight charges – Trucks owned by managing director and director leased out to the said transport company – Deductions towards freight charges abnormal and incremental over a period of time when compared with prices adopted by other cylinder manufacturers supplying to OMCs with corresponding decrease in assessable value of final products – Even when other transporters were engaged, the said transport company was used to route all the transactions and payments to such third party transporters varied upto 250% of billings of impugned transport company – Inclusion of freight charges justified, duty demands thereon upheld – Rule 5 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 read with section 4(1)(a) of Central Excise Act, 1944

Limitation – Invocation of extended period of limitation in subsequent show cause notices – After issue of first set of show cause notices, when subsequent detailed investigations revealed fresh set of evidences suppressing assessable values and increase in deduction towards freight charges, invocation of extended period of limitation in subsequent show cause notices justified – Facts of instant case distinguishable from the facts of the case laws (Nizam Sugar Factory et al) where the facts and evidences remained the same for subsequent notices – Extended period of limitation invoked justified – Proviso to Section 11A of Central Excise Act, 1944

Penalty – When appellant-companies, transport company, managing director and director deliberately engaged in incremental deduction of freight charges and decrease in assessable values resulting in evasion of excise duties, penalties under section 11AC and Rule 26 of CER, 2002 justified – However, in view of the overall facts and circumstances of the case, penalties on transport company, managing director and director reduced partially – Penalties on other individuals like general manager, dispatch-in-charge, chartered accountant etc set aside – Section 11AC of Central Excise Act, 1944 read with Rule 26 of Central Excise Rules, 2002 Also see analysis of the Order

2012-TIOL-70-CESTAT-MUM

Todi Industries Ltd Vs CCE, Mumbai (Dated : September 27, 2011)

Assessee classifying ‘Rubber Solution' under heading 4006.90 and in SCN department proposing classification under 40.05 – adjudicating authority holding that goods correctly classifiable under heading 35.06 and this order upheld by appellate authority – lower authorities have traversed beyond the SCN and, therefore, order is bad in law – appellant has made a prima facie case in favour for grant of stay and waiver of pre- deposit: CESTAT [para 8]

2012-TIOL-65-CESTAT-MUM

Shrijee Lifestyle Pvt Ltd Vs CCE, Thane-I (Dated : August 5, 2011)

Cotton fabrics exported under claim for rebate of duty - Notfn 29/2004-CE prescribed a 'nil' rate and notfn 59/2008-CE levied '@4% adv.' duty - When two different Notifications prescribed two rates of duty, the assessee is at liberty to opt for whichever is beneficial to him – Cenvat credit available in respect of inputs used in manufacture of final products being exported irrespective of the fact that the final products are otherwise exempt - Rule 6(3) of CCR, 2004 not applicable - Prima facie strong case in favour – Pre-deposit waived & stay granted: CESTAT

Also see analysis of the Order

2012-TIOL-64-CESTAT-MUM

Zinta Foods And Beverages Vs CCE, Mumbai (Dated : October 5, 2011)

Appellant manufacturing goods and clearing the same without payment of duty by availing SSI exemption notification - notification 8/2003-CE does not debar availment of Cenvat credit on input services - issue settled in case of Vallabh Vidyanagar Concrete Factory vs. CCE, Vadodara 2010-TIOL-200-CESTAT-AHM - strong prima facie case - pre-deposit waived and stay granted - Petition allowed: CESTAT [para 3]

2012-TIOL-63-CESTAT-MUM

S M Auto Engineering Pvt Ltd Vs CCE, Pune-I (Dated : October 21, 2011) Price indicated by the supplementary invoices is directly relatable to the value of the goods on the date of clearance - When differential duty is paid after the clearance it indicates short-payment/short-levy on the date of removal, hence interest becomes leviable – Appeal dismissed [para 5]

2012-TIOL-60-CESTAT-MUM

M/s Raymond Ltd Vs CCE, Mumbai (Dated : October 19, 2011)

As the pre-budgetary stock of finished fabrics/WIP stock/input stock as on 9.7.04 was exempted from duty under Notification No.30/04-CE, the benefit of captive consumption notification 67/95-CE claimed in respect of tops, yarn and grey fabrics manufactured and used/contained in the finished fabrics stock/WIP is not available – Demand of Rs.2.15 crores upheld and appeal rejected: CESTAT [para 13]

Since the assessee has not submitted the information sought by the Range Superintendent and in fact informed that their inability to compute and furnish the information, the jurisdictional authorities themselves derived the information on pro- rata basis from the returns submitted – in such a scenario, extended period u/s 11A of the CEA, 1944 has been rightly invoked – penalty u/s 11AC and interest u/s 11AB also upheld. [para 14]

Also see analysis of the Order

2012-TIOL-59-CESTAT-MUM

Signum Fire Protection (India) Pvt Ltd Vs CCE, Nagpur (Dated : October 5, 2011)

Goods cleared to developer of SEZ without payment of duty – demand made of 8%/10% invoking rule 6 of the CCR, 2004 – notification 50/2008-CE(NT) dated 31.12.2008 whether applicable retrospectively – in view of decision in Sujana Metal Products Ltd. vs. CCE, Hyderabad 2011-TIOL-1173-CESTAT-BANG holding that even prior to 31.12.2008, the goods supplied to the SEZ developer are to be treated as export, pre-deposit of dues waived and recovery stayed – Stay petition allowed.

2012-TIOL-58-CESTAT-MUM

CCE, Mumbai Vs M/s R K Control Instruments Pvt Ltd (Dated : August 24, 2011)

Notification 10/97-CE – Control Valve and accessories - certificates have been issued by the Deputy Secretary, Department of Atomic Energy in respect of goods supplied to BARC and Indira Gandhi Centre for Atomic Research and by the Registrar, I.I.T. Delhi in respect of goods supplied to I.I.T. Delhi clearly stating that the goods are required for research purpose only – benefit of exemption cannot be denied goods on the ground that impugned goods are used for regulating the flow of gases/liquids which cannot be taken as Scientific and Technical instrument, apparatus and equipment – Revenue appeal dismissed. 2012-TIOL-48-CESTAT-BANG

M/s Indian Rayon & Industries Ltd Vs CCE, Bangalore (Dated : September 6, 2011)

Central Excise – Manufacture – Stay/waiver of pre-deposit – Import of readymade garments and cleared to jobworker's end for repacking and labeling with details of brand name, size, style, MRP, bar code etc – Prima facie activities undertaken on imported ready made garments involved repacking from bulk pack to retail pack and labeling on boxes to render the products marketable – On merits, the duty demand prima facie , sustainable – No justification for invoking extended period of limitation as the matter related to interpretation of chapter note to determine the activity as ‘manufacture' – Pre-deposit of Rs. 25 lakhs ordered and balance amounts waived till disposal of appeals – Section 35F of Central Excise Act, 1944 read with Note 4 of Chapter 62 of Central Excise Tariff Act, 1985

2012-TIOL-47-CESTAT-BANG

Nishant Fragrances Ltd Vs CC & CE, Tirupathi (Dated : August 12, 2011)

Central Excise - Remission of duty – Loss of non-duty paid goods by theft was neither an 'accident' nor 'unavoidable' and was also not a 'loss by natural cause' - No remission of duty warranted - Rule 21 of Central Excise Rules, 2002 read with Rule 49 of Central Excise Rules, 1944

2012-TIOL-46-CESTAT-BANG

M/s Sunrik Steels Ltd Vs CCE, Bangalore (Dated : August 5, 2011)

Central Excise – Denial of CENVAT Credit on capital goods on the ground that supplier did not have necessary infrastructure to manufacture and supply goods – Equivalent penalty imposed invoking section 11AC of Central Excise Act, 1944 – When supplier was a registered unit and paid duty from PLA as well as CENVAT A/c during the period and credit availed by appellant reflects the duty paid on the goods by supplier and no evidence adduced by department to the contrary, credit not deniable – Demand of credit and imposition of penalty not sustainable, set aside on merits as well as limitation – Section 11A read with Section 11AC of Central Excise Act, 1944

2012-TIOL-44-CESTAT-MUM

Siyaramji Gupta Vs CCE & ST, Aurangabad (Dated : October 28, 2011)

For imposition of penalty under rule 26 of the CER, 2002 goods should be held liable for confiscation - as there is no proposal in show-cause notice for confiscation, penalty not imposable - prima facie strong case in favour - Pre-deposit waived: CESTAT [para 7]

Also see analysis of the Order

2012-TIOL-43-CESTAT-BANG

CC, Bangalore Vs M/s Chrysallis Silks Pvt Ltd (Dated : August 12, 2011)

Central Excise – Refund under Rule 5 of CENVAT Credit Rules, 2004 – Refund claim rejected by original authority on the ground that credit was not taken within a reasonable period, set aside by lower appellate authority holding that there was no time limit for availing credit – As there is no time limit to avail credit, no reason to interfere with order of lower appellate authority – Rule 5 of CENVAT Credit Rules, 2004

Appeal – Remand – Commissioner's powers to remand under section 35A – With regard to rejection of refund for non-submission of valid documents, appellate authority remanded matter to original authority with direction to verify documents – Commissioner (A) merely gave another opportunity to assessee to produce documents before original authority for fresh consideration as matter required factual verification by original authority – Though Commissioner (A) has no power of remand, grounds on which matter was remitted to original authority appears genuine – Original authority directed to verify claim of assessee with reference to documents and consider refund claim afresh – Section 35A of Central Excise Act, 1944

2012-TIOL-38-CESTAT-MUM

CCE, Mumbai Vs Adlab Films Ltd (Dated : September 27, 2011)

ROM application filed by Revenue alleges grievous error – applicant has misconceived the facts inasmuch as in para 2 submissions made by appellant are recorded and findings of the Bench have been recorded in para 4 which have not been gone through – ROM dismissed. [para 3]

2012-TIOL-36-CESTAT-BANG

Water (India) Pvt Ltd Vs CCE, Bangalore (Dated : August 8, 2011)

Central Excise - Appeals - Application filed to reconstruct the appeals - Appeals filed in 1992 before SZB, Chennai and eventually transferred to Bangalore - Original memoranda neither available with assessee nor the registry - Registry directed to send a request to Chennai Registry to forward a copy of the original records, if already not sent - Department at liberty to verify their records and place the relevant original files before the Bench - Rule 41 of CESTAT (Procedure) Rules, 1982. 2012-TIOL-35-CESTAT-BANG

CCE, Hyderabad Vs M/s TFL Quinn India Pvt Ltd (Dated : August 19, 2011)

Central Excise – Refund – Goods cleared on payment of duty on transaction value to dealers – ‘Timely payment discount' of 3% extended to dealers who made payments on time by issuance of credit notes/cheques – Refund claim filed for duty paid in lieu of ‘timely payment discount' allowed by original authority and lower appellate authority resulting in Revenue appeal – In the instant case, when there is no exchange of credit notes and debit notes between seller and buyer i.e. credit notes/cheques issued by assessee to dealers not reciprocated with debit notes, it cannot be held that incidence of duty was actually passed onto dealers – Burden lies upon assessee to establish that burden of duty claimed as refund was passed onto buyers – Nothing on record to indicate that this burden was discharged beyond the pale of doubt by assessee – Mere issuance of credit notes by a refund claimant (assessee) subsequent to clearance of goods would not obliterate the bar of unjust enrichment – Larger Bench judgment in S. Kumar's Ltd 2003-TIOL-01-CESTAT-DEL- LB followed – Section 11B read with Section 12B of Central Excise Act, 1944

2012-TIOL-33-CESTAT-MUM

M/s Colgate Palmolive (India) Limited Vs CCE, Mumbai (Dated : October 17, 2011)

Manufacture of base cream of toothpaste - Since on the quantity of base cream used for R&D the applicant pays duty, the remaining quantity not used is also to be considered as marketable and not a waste - Pre-deposit ordered: CESTAT [para 6]

Also see analysis of the Order

2012-TIOL-32-CESTAT-BANG

M/s Volvo India Pvt Ltd Vs CCE, Bangalore (Dated : September 7, 2011)

Central Excise – Stay/waiver of pre-deposit – Eligibility of exemption Notification No. 108/95-CE – Manufacture and clearance of dumpers to a construction company for execution of World Bank funded project adhering to conditions prescribed in the said notification – Based on amendment vide Notification No. 13/2008-CE, duty demanded as the dumpers were withdrawn by the construction company upon completion of project, for use elsewhere – At the time of clearance of goods, appellant eligible for exemption under said notification – Only allegation in SCN was that the assessee should have taken necessary steps to ensure that the dumpers were not diverted/withdrawn from the project site upon completion of the project – This allegation would not constitute any of the ingredients embodied in the proviso to section 11A(1) of Central Excise Act for invocation of extended period of limitation – Prima facie, demand of duty time barred – Pre-deposit waived and stay granted 2012-TIOL-24-CESTAT-MUM

CCE, Thane Vs M/s Chander Dye Chem Industries (Dated : September 13, 2011)

Assessee engaged in activity of re-packing chemicals since 1980 and chapter note notifying this activity as manufacture inserted only in 1997-98 – it cannot be said that they had suppressed this fact with intent to evade duty – Allegation of suppression cannot be sustained – Revenue appeal dismissed: CESTAT [ para 7 ]

Also see analysis of the Order

2012-TIOL-23-CESTAT-AHM

M/s Rolastar Pvt Ltd Vs CCE, Daman (Dated : September 29, 2011)

Central Excise - Valuation - Duty paid by Job-worker - Goods captively consumed by Principal - Application of Rule 10(a) and Rule 8 of Valuation Rules - The value of job- worked goods will be the cost of raw materials supplied by customers and job charges including profit of the job worker. When the job-worked goods are cleared back to the principal and the goods are captively consumed by the principal there is no applicability of Rule 8 or Rule 10A of Valuation Rules. (Para 7 & 8)

2012-TIOL-21-CESTAT-AHM

M/s Gail (India) Ltd Vs CCE, Vadodara (Dated : November 14, 2011)

Central Excise – CENVAT Credit on input services used for both dutiable and exempted goods – Appellant reversed credit on services which are not covered under Rule 6(5) of the CENVAT Credit Rules, 2004 – The appellant is liable to pay interest in view of Ind Swift Laboratories Ltd. - Penalty - Availment of wrong credit has happened because of accounting error and is a mistake - It is appropriate that the provisions of Section 80 are invocable in this case and penalty set aside.

2012-TIOL-17-CESTAT-DEL

KEC International Vs CCE, Bhopal (Dated : August 8, 2011)

Central Excise - Supplementary Invoice - Price Escalation - Demand of Interest - Limitation - Interest is payable on supplementary invoices raised for differential duty as it falls under the provision of sub-section (2B) of Section 11A of the Act. There is no limitation for demand of interest. (Para 4)

Also see analysis of the Order 2012-TIOL-16-CESTAT-AHM

CCE, Hyderabad Vs M/s Virchow Laboratories Limited (Dated : October 25, 2011)

Central Excise – Refund of service tax paid on services like transport of goods by road, transport of goods by rail, agency charges and port charges rejected – Revenue cannot reject the refund by re-classifying the services at the receiver's end - Since the original adjudicating authority has not verified the documents and has also taken a view that documents were not submitted, the matter is remanded to original adjudicating authority.

2012-TIOL-15-CESTAT-BANG

CCE, Hyderabad Vs M/s Virchow Laboratories Limited (Dated : June 28, 2011)

Central Excise – Allegation that spent methanol emerging as by product during manufacture of bulk drugs cleared as industrial waste by resorting to under valuation – Though statements recorded from purchasers stated that they received spent methanol of purity 90 to 98%, department could not produce any evidence whether it had conducted tests to check purity – Commissioner's finding that no evidence was put forth by department that methanol was removed in the guise of industrial waste by undervaluation sustained – Appeal filed by Revenue devoid of merits

2012-TIOL-11-CESTAT-BANG

M/s Shine Star Oxides & Paints Pvt Ltd Vs CCE & CC, Cochin (Dated : August 10, 2011)

Central Excise - Manufacture/Eligibility of SSI benefit under Notification No. 1/93-CE - Activity of repacking of various colour oxides into small packings - Demand of duty for manufacture and clearance of final products cleared during 1995-96 and 1996-97 without following central excise procedures

Classification - Chemical examination conducted on samples drawn by department of certain products viz., microfine red oxide and microfine jet black oxide sold from one branch resulted in classification of said products under Tariff Heading No. 3206.90 - Test results of Chemical Examiner on microfine red oxide and re-test at request of assessee found Fe 2 O 3 content at 52.5%, classification under Tariff Heading No. 3206.90 as determined by Commissioner upheld – When chemical examination report in r/o only two products were against assessee and rest of the products in favour of assessee and in the absence of any investigation at other branches, no presumption can be made that products cleared from such branches are also to be classified under Tariff Heading No. 3206.90 – Burden to prove classification clearly rests with the department

Benefit of Exemption Notification No. 1/93-CE – When department has not proved that products cleared from other branches fall under Tariff heading No. 3206.90, question of shifting the burden onto appellants to deny benefit of exemption Notification 1/93- CE not sustainable – When clearances of assessee during FY 1995-96 and 1996-97 are within threshold limit for availing benefit of exemption Notification 1/93-CE order of Commissioner denying benefit of SSI exemption set aside – Demand of duty, confiscation and penalty set aside – SSI Exemption Notification No. 1/93-CE

2012-TIOL-10-CESTAT-BANG

M/s Sharavathy Conductors Pvt Ltd Vs CCE, Bangalore (Dated : August 19, 2011)

Central Excise – Manufacturer having two Units viz., Unit I and Unit II – Credit of service tax paid on input services received by both manufacturing units availed by Unit-I only – Such credit pointed out as irregular by departmental audit reversed thereafter – SCN issued after one and half years for recovery of interest under section 11AB and imposition of penalty under Rule 15 of CENVAT Credit Rules read with section 11AC – Credit reversed by Unit-I undisputedly available to Unit II since both the Units are owned by appellant company only – It cannot be presumed that Unit I had any intention to evade payment of duty

Appeal – Scope of appeal and order passed by lower appellate authority – Appeal filed by Revenue before Commissioner (Appeals) only challenged dropping of demand of interest on CENVAT Credit in question – No issue other than the one pertaining to interest on CENVAT credit reversed was to be examined by lower appellate authority – Impugned order imposing penalty equal to CENVAT credit under Rule 15 (4) of CENVAT Credit Rules 2004 read with Section 11AC of the Central Excise Act beyond the scope of Revenues appeal before lower appellate authority – Lower appellate authority exceeded the brief by examining extraneous issues which did not arise in the Revenue's appeal filed before it – Impugned order set aside – Rule 15(4) of CENVAT Credit Rules, 2004 read with Sections 11AB and 11AC of Central Excise Act, 1944

2012-TIOL-06-CESTAT-MUM

Thermax Ltd Vs CCE & CC, Raigad (Dated : November 16, 2011)

Central Excise - copolymer beads cleared to sister unit for further processing, marketable: A.R has been able to prove on record that these copolymer beads have been imported by M/s. Doshion Veolia Water Solutions Pvt. Ltd. in 2010 and placed on records the Bills of Entry. Therefore, relied on the decision of Nestle India , wherein this Tribunal has held " it was not necessary that identical product should be marketable. Even if similar product is proved to be marketable, the test of marketability is satisfied. " In all the cases relied by the appellant, the law is laid down that onus is on the revenue to prove the test of marketability which has brought on record the evidence of marketability of impugned copolymer beads. Held that the copolymer beads are marketable.

No extended period : Tribunal considered the decision in the case of Ion Exchange which was passed by the apex court on 02.08.1999 wherein the issue of marketability was still pending and in that case the apex court has held that as there was Difference of Opinion amongst the Tribunal Members on the question of marketability of the intermediate product but all the three members unanimously held that only normal time limit will be applied to the demands. Admittedly, the A.R. is able to produce an evidence of marketability of the impugned product by way of Bills of Entry only in 2010. Therefore, the issue of marketability of impugned product was not decided at that time and in that event, relying on the decision of the Ion Exchange and Nestle India Tribunal found that the extended period of limitation is not invokable in the facts and circumstances of this case.

Rule 57E Certificate valid: It is only with effect from 01.03.97, Rule 57(E)(3) was introduced to deny the Modvat Credit if the differential duty payable by the manufacturer was due to fraud, suppression, mis-statement etc. Hence, only in respect of goods cleared after 01.03.97 and subsequently, if it is found that differential duty was payable due to suppression of fact, fraud, mis-statement etc. on such inputs Modvat credit to the purchaser is not allowed. The said rule does not have retrospective operation. Hence, for goods cleared prior to March, 1997, the said rule 57(E)(3) cannot be applied.

Also see analysis of the Order

2012-TIOL-05-CESTAT-DEL

Neel Metal Products Ltd Vs CCE, Delhi (Dated : July 28, 2011)

Central Excise – When capital goods are cleared on sale, whether entire credit at the time of receipt of goods to be reversed or duty to be paid on depreciated value – The expression 'as such' used in Rule 3(5) cannot be understood in the same way as is understood in Rule 4(5) of CCR – When goods received in 2001 are cleared in 2006 after being put to use, actual credit availed need not be reversed – Tribunal decision in Greenply Industries Ltd 2010-TIOL-1179-CESTAT-DEL followed

2012-TIOL-01-CESTAT-BANG

M/s Dukes Consumer Care Ltd Vs CCE, Hyderabad (Dated : September 8, 2011)

Central Excise – Classification – Wafers coated with cocoa paste whether classifiable under Chapter SH No. 1905 32 19 as claimed by assessee or Chapter SH No. 1905 32 11 as claimed by Revenue

Stay/Waiver of pre-deposit – Issue no longer res integra , stands settled in favour of Revenue – Pre-deposit of Rs. 2 lakhs ordered – Section 35F of Central Excise Act, 1944

Stay application filed by Revenue – Revenues plea for stay of adverse portion of Appellate Commissioner's order dropping penalty has no valid reason – Liable for dismissal