CESTAT RULING (CENTRAL EXCISE)

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1 CESTAT RULING (CENTRAL EXCISE) 2015-TIOL-1823-CESTAT-BANG Sreepathi Pharmaceuticals Ltd Vs CC, CE & ST (Dated: May 26, 2015) Central Excise - Reversal of Cenvat credit - Inputs supplied for manufacture destroyed in fire at Job worker's premises before reaching final stage of goods - Rule 3(5c) is not applicable since inputs and not the final product got destroyed - Nor remission of duty is involved - Appellant held is entitled to Cenvat credit of duty on said inputs destroyed in fire accident - Impugned order denying credit is set aside. (Para 4, 5, 6) 2015-TIOL-1822-CESTAT-HYD Singhania Offset Printers Pvt Ltd Vs CC, CE & ST (Dated: February 04, 2015) Central Excise - Waiver of Pre -deposit - Manufacture of self adhesive labels - Whether products of printing industry attracting nil rate of duty - Held on facts that prima facie, the stickers produced are covered by HSN chapter notes - However, since the original adjudicating authority had taken a view in favor of the appellant and further issue relates to classification and requires detailed consideration of Tariff description, HSN notes etc, appellant is directed to deposit Rs.50,000 to hear the appeal - Pre -deposit of balance due is waived. (Para 4) 2015-TIOL-1821-CESTAT-MUM Shraddha Ispat Pvt Ltd Vs CE (Dated: June 08, 2015) CX - CENVAT - Availment of credit of service tax paid by appellant under GTA services during the period to under TR-6 challan - credit denied on the ground that during the material time TR-6 challan was not prescribed as a valid document for taking credit under rule 9 of CCR, Held - Punjab & Haryana High Court in the case of Ralson India Ltd. and Bombay High Court vide order dated has decided the same issue in favour of assessee inasmuch as credit availed on such TR-6 challans has been held as admissible - Therefore, order of adjudicating authority is not sustainable and hence set aside - Appeal allowed: CESTAT [para 5, 6] 2015-TIOL-1818-CESTAT-AHM Dhariwal Industries Ltd Vs CCE & ST (Dated: August 13, 2015) CE - Pan Masala (Packing Machine, Capacity Determination & Collection of Duty) Rules, Ban on usage of plastic pouches in packing of gutkha - appellant paying duty for the month as per rule 9 & later closing down their factory but coming to know that the ban is effective from , hence appellant reopening factory - refund of duty claimed in respect of the six days when factory was closed - It is Rule 16 that applies and not rule 10 - Refund permissible on pro-rata basis - appeal allowed: CESTAT [para 9, 10, 13, 14] Also see analysis of the order

2 2015-TIOL-1815-CESTAT-MUM M/s Sunil Industries Ltd Vs CCE (Dated: February 05, 2015) CX - HASITPACD Rules, Compounded levy scheme - Processed fabrics - Inclusion of length of gallery and cooling zone while determining capacity of stenters as 17 chambers - against order of Commissioner fixing capacity, appellant making representation but no reply received - in the meanwhile demand notices issued for recovery of differential duty - demand confirmed, hence appeal before CESTAT. Held: Tribunal in the case of Samarth Knitters P Ltd TIOL-1862-CESTAT -MUM has dealt with exactly similar issue and held that length of galleries are not be taken into consideration while fixing capacity of stenter - assessee can challenge the demand raised although they have not challenged the order fixing annual capacity by the Commissioner - Order set aside and appeal allowed: CESTAT [para 3, 4] 2015-TIOL-1814-CESTAT-MUM Smruti Organics Ltd Vs CCE (Dated: June 18, 2015) CX - When it is not disputed that the appellant is not required to discharge any CE duty on the goods exported by them and the revenue authorities have held that the amount debited is without any authority of law, the natural corollary would be that the amount is returned as Revenue can collect tax/duty only by authority of law - Order set aside and appellant directed to take the credit back in their CENVAT account - Appeal allowed: CESTAT [para 6, 8] Also see analysis of the order 2015-TIOL-1813-CESTAT-DEL M/s Space Telelink Ltd Vs CCE (Dated: June 29, 2015) CX - Assessee has defaulted in making payment of Excise duty within 30 days and thereafter they utilized Cenvat Credit account for payment of duty - Later on, the appellant paid the duty through PLA along with interest and sought Cenvat Credit on duty paid - Revenue views that assessee have contravened provisions of Rule 8 (3A) of CER, As per Indsur Global Ltd TIOL-2115-HC-AHM-CX, as Rule 8(3A) has been declared unconstitutional, consequently proceedings against assessee are not sustainable - Assessee has contravened provisions of CER, 2002, therefore, general penalty of Rs.5,000/- under Rule 27 is imposed - Managing Director has not contravened, penalty on Managing Director are set aside: CESTAT 2015-TIOL-1812-CESTAT-AHM M/s Sujata Chemicals Vs CCE & ST (Dated: June 10, 2015) CX - Assessee is sending Caustic Potash Flakes for purification to two job workers M/s. Vinayak Chemicals and M/s. Atlas Pallet Industries - In case of job worker M/s. Atlas Pallet Industries, 100% yield of Potash Pallets is the result whereas in case of M/s. Vinayak Chemicals, a processing loss of 10% is claimed in yield - No Scientific Literature or certificate from a Chartered Engineer was produced to support their claim that in process of conversion of Caustic Potash Flakes into Potash Pallets there is a loss of 10% as claimed by them - In absence of any such documentary evidence, no reason to interfere with order passed by first appellate authority and same is required to be upheld in so far as denial of CENVAT credit and interest is concerned: CESTAT Penalty - As assessee was sending inputs through challans under Rule 4 (5)(a) of CCR, 2004, it can not be said that there was any suppression/ mis -statement on part

3 of assessee with intent to evade payment of duty - Penalty under Rule 15 (2) of CCR, 2004, read with Section 11AC of CEA, 1944 is set-aside: CESTAT 2015-TIOL-1809-CESTAT-BANG West Coast Paper Mills Pvt Ltd Vs CCE & ST (Dated: May 29, 2015) Central Excise - Inputs used in the construction of chimney, a part of pollution control system, are capital goods - Cenvat credit is admissible - Since credit availed reflected in statutory documents and more so the issue was also a contentious and debatable one, malafides cannot be attributed - Penalty hence set aside. (Para 3, 4) 2015-TIOL-1808-CESTAT-DEL Young Steels Pvt Ltd Vs CCE (Dated: March 17, 2015) CX - Appellant manufactures M.S. Ingots - One of the buyers of M.S.ingots is M/s.Kamdhenu Ispat Ltd., (KIL) - During search of premises of M/s. KIL, certain pen drives, CPUs and Lap Tops, ingot purchase file recovered - Out of total duty demand of Rs. 74,06,356/-, Rs lakh is based on entries in purchase file recovered from premises of M/s.KIL - There is no dispute that Shri Devender Arora, MD of appellant company in his statement, when shown the above mentioned purchase file, admitted that entries in purchase file pertaining to his company are true, and that the goods had been supplied to KIL without payment of duty - Out of duty demand of Rs lakh, appellant have already paid Rs.10 lakh - Remaining duty demand of Rs.61 lakh is based on data retrieved from pen drives and CPU - Duty demand of Rs.44 crores had been raised against M/s. KIL based on CPU data and Commissioner expressing doubt about genuineness of that data has dropped the demand - Commissioner while confirming duty demand based on data retrieved from pen drives has not gone into question as to whether the data is genuine or is tampered with, same can be examined in detail only at the time of final hearing - Appellant company is directed to deposit Rs.5 lakh within four weeks: CESTAT [Para 7, 8, 9, 10] 2015-TIOL-1807-CESTAT-MUM CCE Vs M/s Garware Wall Ropes Ltd (Dated: April 30, 2015) CX - Refund, Interest - s.11b, 11BB of CEA, Order of Tribunal was passed on holding that the credit of refund amount to Consumer Welfare fund is wrong and appeal was allowed with consequential relief - Revenue contention is that interest on refund is payable w.e.f , that is after 3 months from the date of the CESTAT order. Held: Interest is payable from the date of expiry of 3 months from the date of receipt of application under s.11b(1) of the CEA, Order passed by Commissioner(A) based on the ruling of the Bombay High Court in Ballarpur Industries TIOL-34-HC-MUM-CX affirmed by apex court in Ranbaxy Laboratories TIOL-105-SC-CX does not suffer from any illegality or impropriety - Revenue appeal dismissed: CESTAT [para 5, 6] 2015-TIOL-1806-CESTAT-MUM Ruby Mills Ltd Vs CCE (Dated: June 18, 2015) CX - s.35c(2a) of CEA, Applicant seeking extension of stay on the ground that their appeal has not come up for disposal for no fault of theirs. Held: In the case of Venketeshwara Filaments Pvt. Ltd TIOL-2388-CESTAT -AHM it is held that consequent upon omission of 1 st, 2 nd and 3 rd proviso to section 35C(2A) of the CEA, 1944 by the FA, 2014 it is to be held that there is no provision for making

4 further application for extension of stay and that the stay order passed by the Tribunal, if it is in force beyond , it would continue till the disposal of the appeals and there is no need for filing any further applications for extension of orders granting stay either fully or partially since the stay in the present case was in force beyond , same would continue till the disposal of the appeal - Application disposed of: CESTAT [para 2, 3] 2015-TIOL-1805-CESTAT-KOL CCE Vs M/s Texmaco Rail And Engg Ltd (Dated: November 13, 2014) CX - Assesse are manufacturer of excisable goods and cleared without payment of duty under 'Served from India Scheme' i.e. "SFIS" after availing benefit of exemption Notfn 34/2006-CE - Assessee contends that benefit of said Notfn cannot be equated to "exempted goods", and they not required to pay an amount equal to 10% of value of goods cleared by availing benefit of said notfn - Revenue has assailed impugned order of Commissioner on ground that he has allowed credit on duty free materials used in manufacture of impugned goods, which were exempt from payment of duty - At the time of passing order, case laws cited by assessee were not available to Commissioner and therefore, he had no occasion to examine facts in light of said case laws - Both sides agreed that these issues to be addressed afresh by adjudicating authority - Case remanded: CESTAT 2015-TIOL-1803-CESTAT-BANG Bharat Heavy Electricals Ltd Vs CCE, C & ST (Dated: May 29, 2015) Central Excise - Refund claim - Limitation - Payment of duty pending disposal of the appeal - Eligibility to claim exemption under Notification No. 108/95-CE - Lodging of explicit claim of protest must precede payment of such duty - Neither the duty paid by manufacturer during the pendency of appeal for the disputed period was under protest - Nor was the CESTAT order relied on covers the entire period in question - Refund claim filed beyond prescribed period of limitation under section 11-B is hit by limitation as such was rightly rejected - Contention of appellant that as the issue was before the Tribunal by way of an appeal, the duty paid during the subsequent period must be deemed to be having been paid under protest held cannot be appreciated because statute provided a specific procedure to be followed which was not complied - Question of deemed fiction thus does not arise - No infirmity in the impugned orders - Assessee appeal has no merit hence is rejected. (Para 7) 2015-TIOL-1802-CESTAT-MAD CCE Vs M/s Dharani Sugars And Chemicals Ltd (Dated: April 16, 2015) Central Excise - CENVAT credit - precise question raised by Revenue is whether the duty paid on the molasses generated by sugar plant of appellant and such molasses utilised for the purpose of manufacture of de-natured spirit, rectified spirit and extra neutral alcohol, shall allow the appellant to transfer the credit of the duty so paid on molasses for set off against the duty liability against the sugar cleared from the factory. Held: The Chennai High Court in the Rajshree Sugars and Chemicals case, on similar facts, ruled that the transfer of credit between distillery and sugar units was permissible; same applicable to the instant case. [Para 2]

5 2015-TIOL-1801-CESTAT-MUM Videocon Industries Ltd Vs CCE (Dated: July 31, 2015) CX - S.4A of CEA, Valuation - While arriving at the assessable value for the retail sale price, an amount of abatement specified by notification can only be deducted - there is no provision under the law to exclude warranty charges from the RSP - statutory provision under Section 4A cannot be altered or influenced merely because the appellant has chosen to discharge service tax on portion of the retail sale price - Demand upheld and appeal dismissed: CESTAT [para 6] Also see analysis of the order 2015-TIOL-1800-CESTAT-MUM M/s Balkrishna Industries Ltd Vs CCE (Dated: June 17, 2015) CX - Appellant selling six year old used forklift on discharge of CE duty at depreciated value - after department raised objection that appellant should have paid an amount equal to credit taken, appellant paying differential duty along with interest under protest - later refund claimed of amount paid which was rejected. Held: Machine (fork lift) cleared after putting into use cannot be treated as cleared 'as such' - insertion of proviso in rule 3(5) of CCR, 2004 w.e.f makes it clear that there is a difference between machine cleared without putting into use and cleared after use - in view of authoritative judicial pronouncement in case of Raghav Alloys Ltd TIOL-881-HC-P&H-CX, order rejecting refund set aside and appeal allowed with consequential relief: CESTAT [para 4, 5] 2015-TIOL-1799-CESTAT-MUM M/s Asiatic Gases Ltd Vs CCE (Dated: May 8, 2015) CX - Interest - Whether appellant is required to pay interest in a case where duty along with part interest was paid voluntarily - appellant submitted that inte rest on delayed payment of duty cannot be demanded unless duty is determined under s.11a(2) of CEA, Held: It is an admitted fact that there is substantial delay in payment of duty even though appellant has paid interest voluntarily - even though the duty was not determined u/s 11A(2) of CEA, 1944 but when there is admitted delay in payment of duty, interest is chargeable even prior to in view of apex court decision in International Auto Ltd TIOL-05-SC-CX interest is levied for loss of Revenue on any count - no infirmity in the order, hence sustained - appeal dismissed: CESTAT [para 5] 2015-TIOL-1798-CESTAT-DEL M/s Ambassador Coolers Pvt Ltd Vs CCE (Dated: February 3, 2015) CX - Assessee has placed purchase order to supply all goods to M/s. Nowrangroy Rameshwar with directions that goods are required to be delivered at job worker's place - Invoices were raised in name of assessee and goods were delivered to job worker, which were received by assessee after processing - Rates quoted are of job work charges only, although the job worker has paid VAT thereon - It cannot be concluded that goods have been sold by job worker to assessee - When assessee has

6 filed reply to SCN, facts were required to be verified which Revenue has failed to do so - Under notfn 214/86, job worker is required to intimate the department that they are undertaking activity of job worker and not required to pay duty but that fact has also been not verified by department - Assessee is entitled to take Cenvat credit - Appeal allowed: CESTAT 2015-TIOL-1797-CESTAT-DEL M/s Pepsico India Holdings (P) Ltd Vs CCE (Dated: April 16, 2015) CX - Assessee are manufacturers of Aerated Water, one of the inputs is glass bottles in respect of which input duty CENVAT Credit has been taken - Some glass bottles, during use get broken and same are cleared as glass scrap - During period of dispute there was no provision in CCR, 2001/2002 providing that when CENVAT Credit availed inputs are cleared as waste, some amount in respect of same is required to be paid - Impugned order set aside and appeal allowed: CESTAT 2015-TIOL-1796-CESTAT-BANG M/s Hetero Labs Ltd Vs CCE (Dated: May 1, 2015) Central Excise - Bulk drug manufacture - Procurement of duty free imported and indigenous raw material - Cenvat credit utilization -Whether or not credit availed on duty paid inputs can be used for discharge of duty at the time clearance of the duty free imported inputs - Held in matters of CENVAT credit, there is no one-to-one correlation and where appellants have used such credit for payment of duty for clearance of imported raw materials, they would not be in a position to use the same at the time of clearance of the final product-treating reversal as proper, pre -deposit dispensed with - Matter remanded to the Commissioner (A) for a decision on merits. (Para 4) 2015-TIOL-1792-CESTAT-AHM M/s Shah Paper Mills Ltd Vs CCE & ST (Dated: June 22, 2015) CX - Assessee is manufacturer of kraft paper from waste paper - Whether main assessee was eligible to take credit on basis of cenvatable documents showing payment of duty - Assessee taking cenvat credit is not required to go beyond cenvatable document to know as to how it has arisen - What input recipient is required to verify is that supplier of raw material is genuine and proper duty is paid - Both the conditions are fulfilled - Duty paid on waste kraft paper was accepted by officer Incharge of supplier unit M/s SPPML - On merit assessee was eligible to take CENVAT credit - No evidence brought on record that main assessee and its Director were aware that inputs received was as a result of an activity not amounting to manufacture - Demand issued is clearly time barred as extended period is not imposable and no penalties can be imposed upon assessee: CESTAT 2015-TIOL-1791-CESTAT-DEL M/s Surya Roshni Ltd Vs CCE (Dated: July 6, 2015) CX - Refund - Assessee is manufacturer of electric bulbs and are procuring inputs and capital goods and also availing Cenvat Credit thereon - They opted to avail exemption under notfn 50/2003-CE i.e. area based exemption - At the time when assessee took Cenvat Credit on inputs/capital goods, their final product was dutiable and later on they opted for availing exemption under said notfn - As per Apco Pharma Ltd TIOL-913-HC-UKHAND-CX, they are not required to reverse Cenvat Credit on input /

7 inputs contained in work-in-progress / finished goods lying in their facto ry: CESTAT 2015-TIOL-1790-CESTAT-MUM Gimatex Indst Pvt Ltd Vs CCE (Dated: June 18, 2015) CX- Utilisation of CENVAT credit during April 2005 to March 2007 for discharge of ST liability on outward transportation by engaging goods transport operators - lower authorities denying such utilisation. Held: Both the lower authorities have misread the provisions inasmuch as rule 2(r) of CCR, 2004 specifically provides that a person liable for paying Service Tax is to be construed as a provider of taxable service - when the provisions of rule 2(r) and rule 3(4) are read holistically, it would seem that CENVAT credit can be utilized for discharge of ST liability during the material period and the same need not be paid only in cash - this view is fortified by decision in Nahar Industrial Enterprises Ltd TIOL-555-CESTAT -DEL - Revenue, aggrieved by this decision, had preferred an appeal and the same was dismissed by the Punjab & Haryana High Court - order set aside and appeal allowed with consequential relief: CESTAT [para 5, 6, 8] 2015-TIOL-1789-CESTAT-MUM Murli Industries Ltd Vs CCE (Dated: June 12, 2015) CX - Appellant manufacturing kraft paper and clearing the same on payment of duty - case of Revenue is that goods are exempt by notification 4/2006-CE as amended and hence appellant cannot pay duty and claim credit on inputs - Demand issued for recovery of credit availed and to consider duty paid/collected as u/s 11D of CEA, Held: Issue involved is already decided by Tribunal in case of Balkrishna Paper Mills Ltd. & Others TIOL-1100-CESTAT-MUM by holding that appellant cannot be forced to avail Nil rate of duty as they have option to pay duty under sr. no. 91 & 93 of the notification - appeals are allowed: CESTAT [para 3, 4] 2015-TIOL-1784-CESTAT-MUM Value Industries Ltd Vs CCE (Dated: February 18, 2015) CX- Whether the activity of repair carried out on returned defective compressors falls under "repair" as provided u/r 173H of CER, 1944 or manufacture' u/s 2(f) of the CEA, Activity is repair as no new commodity emerges - CE duty demands set aside and appeal allowed: CESTAT [para 5] 2015-TIOL-1783-CESTAT-MUM M/s Varroc Engineering Pvt Ltd Vs CCE (Dated: September 14, 2014) CX - Appellant availing CENVAT credit of tax in respect of services provided by Prakash Air Freight Pvt. Ltd. department of the view that appellant had wrongly paid ST on service which were exempted from payment of ST vide notification 29/2005-ST in relation to transport of goods by aircraft operator and subsequently availed credit appellant submitting that bills issued by service providers shows the same as 'courier service' - credit denied and in de novo proceedings Assistant Commissioner concluding that 'courier service' provided by service provider was not covered under definition of 'input service' Commissioner(A) holding that services are post clearance export activities not connected with manufacture of goods, hence credit not admissible. Held: As delivery charges are included in selling price, in view of Karnataka HC decision in ABB Ltd TIOL-395-HC-KAR-ST, the expression 'activities relating to business' admittedly covers transportation up to the customers place and, therefore, credit

8 cannot be denied as it is an integral part of business of manufacturer to transport and deliver the goods manufactured, appellant entitled to take credit Appeal allowed with consequential benefits: C ESTAT [para 7] 2015-TIOL-1782-CESTAT-DEL M/s Timex Watches Ltd Vs CCE (Dated: May 27, 2015) CX - Whether inputs on which assessee have taken modvat credit have been put to use for manufacture of watches - As per Report of Defective Work, assessee initially availed modvat credit on inputs/parts of watches, at time of receipt of same before putting to use, assessee has conducted certain tests to find out whether inputs to be usable or not - Inputs which did not find fit to be used, assessee has reversed credit thereon, rest of inputs were issued by assessee for processing or assembling of watches - Defective goods were found only after inputs were issued for processing or assembling of watches, assessee is entitled to credit as per Rule 57D of erstwhile Central Excise Rules, 1944: CESTAT CX - Shortage of inputs - Assessee have explained general ledger of stock adjustment account reflected inputs have been short accounted in some cases and in some other cases inputs are in excess, therefore, there is no actual shortage of inputs - Shortages and excesses are due to the fact that stock accounting used to be done on weighment basis since minute inputs ran into millions and physical counting is not possible - There is no shortage of inputs as explained by assessee - All shortages/rejections have been supported by chartered accountant certifying the same which has not been controverted by Revenue with cogent evidence - Assessee are not required to reverse modvat credit taken by them - Penalty is not imposable on assessee: CESTAT 2015-TIOL-1781-CESTAT-BANG VST Industries Ltd Vs CCE, C & ST (Dated: March 27, 2015) Central Excise - Capital goods - Scope - Inputs (insect controlling traps) used for managing/controlling the tobacco beetle infestation - Held, have to be considered as eligible cenvattable inputs having been used in relation to manufacture of final products - Credit availed clearly reflected in the records - Question of malafide intention does not arise - Stereotype reasoning given in all the cases of adjudication orders by Revenue to invoke extended period of limitation, deprecated- Impugned order of duty demand, penalty and confiscation of goods, set aside.(para 4, 5, 6) 2015-TIOL-1780-CESTAT-MUM M/s Rajuri Steels Pvt Ltd Vs CCE & C (Dated: May 13, 2015) CX - Appellant was working under the compounded levy scheme u/s 3A of CEA, since appellant did not discharge CE duty liability as fixed u/r 96ZP(3) of CER, therefore, SCN issued and duty confirmed which appellant paid without contesting the order-in-original - subsequently, another SCN was issued demanding interest and equal amount of penalty u/r 96ZP(3) and which was confirmed - appellant before CESTAT. Held: No discretion is provided to any authority to either reduce or waive penalty and interest in any circumstances - when there is admitted delay in payment of duty under compounded levy scheme, interest and penalty provided under the proviso to the rule shall unavoidably be imposed - Penalty and interest rightly imposed by adjudicating authority and upheld by Commissioner(A) which do not require any interfe rence - Order upheld and appeal dismissed: CESTAT [para 5]

9 2015-TIOL-1777-CESTAT-MUM M/s Castrol India Ltd Vs CCE (Dated: June 15, 2015) CX- CENVAT - Rule 2(l) of CCR, Outdoor Catering Service - Eligibility - in view of LB decision in GTC Industries Ltd TIOL-1634-CESTAT-MUM-LB & appellants own case TIOL-733-CESTAT -AHM, credit is admissible - howe ver, since appellant have collected 3% of the total catering charges from their employees, CENVAT credit is not permissible on the attributable amount - as copies of input services invoices have been submitted by appellant from time to time along with monthly returns, extended period of limitation is not applicable - demand hit by time bar, demand beyond one year of SCN is dropped - interest payable on the quantified amount - penalty waived: CESTAT [para 5] 2015-TIOL-1776-CESTAT-MUM M/s Ismt Ltd Vs CCE (Dated: May 7, 2015) CX - During the course of manufacture of Alloys and Non-alloy cast and rolls, slag arises which is waste material and which is cleared without payment of duty - Revenue demanding amount of 10% of value of slag by invoking rule 6(3)(i) and (ii) of the CCR, Held: In terms of para 3.7 of Chapter 5 of the CBEC's Excise Manual of Supplementary Instructions, 2005, CENVAT credit is admissible even in respect of input contained in any waste, refuse or by-product, therefore, demand under rule 6(3) is not maintainable - Supreme Court in case of Hindustan Zinc Ltd TIOL-55- SC-CX has held that demand under rule 6(3)(i) is not sustainable in respect of any waste, by product, refuse cleared without payment of duty - in view of settled legal position, Order set aside and appeal allowed: CESTAT [para 5] 2015-TIOL-1775-CESTAT-MUM CCE Vs Ispat Industries Ltd (Dated: June 29, 2015) CX - Valuation - s.4 of C EA, Whether cost of transportation from factory to depot will be includible in the value of goods during the period April 2002 to March Commissioner (A) allowed appeal keeping in view Tribunal's order dated wherein it was held that respondent is not responsible to pay the cost of transport from the place of removal to the place of delivery i.e. from the factory gate to the depot separately & in terms of Rule 5 of the Valuation Rules, 2000, such a cost of transport which is also separately shown is not includable in the valuation for the purpose of excise duty - Revenue in appeal. Held: Tribunal's order has been upheld by the Supreme Court vide order dated TIOL-40-SC-CX - in view of the said decision, Revenue appeal dismissed: CESTAT [para 3] 2015-TIOL-1774-CESTAT-MUM SEW Infrastructure Ltd Vs CCE & C (Dated: June 8, 2015) CX - Penalty imposed of Rs.2.94 crores on appellant under rule 25 of CER, Appellant submits that Tribunal has vide Final order dated allowed the appeal of the main noticee against whom a demand of Rs.2.94 crores was made and equal amount of penalty was imposed; that since the demand itself has not been sustained, no penalty can be imposed on co -noticee. Held: Since duty demand on main appellant has been set aside, penalty on the present appellant cannot survive - penalty set aside - appeal as well as stay petition are allowed: CESTAT [para 6]

10 2015-TIOL-1773-CESTAT-ALL CCE Vs M/s Railway Equipment And Engg Works (Dated: June 10, 2015) CX - Classification - Whether Cast Iron Plates for Emery machinery manufactured by assessee will be classified under CH of CETA, 1985 or under heading Commissioner (A), while holding classification of goods under , has relied upon one report from Superintendent of Central Excise, Range Mathura - From report reproduced in order of First Appellate Authority, it is correctly held that goods were classifiable under heading If manufacturing unit is lying closed at moment then case of Revenue cannot be decided in their favour because it is responsibility of Department to establish, with documentary evidence, that claim made by manufacturing unit is not acceptable or that other finishing activities were required to be done on cast iron plates for emery machinery - Appeal dismissed: CESTAT 2015-TIOL-1772-CESTAT-DEL Bhushan Steel Ltd Vs CCE (Dated: May 7, 2015) CENVAT - Since pipes are sold on basis of length, end cuttings which are not saleable are sent under cover of duty paid invoices by registered depots to Sahibabad unit for manufacture of ingots - credit is availed on the duty suffered on value varying from Rs.36/- to Rs.42/- per kg - Contention of department is that as invoices issued of end cuttings mention value as Rs.15/- per kg, credit is to be restricted only to the duty payable on said value - Demand of Rs.1.20 crores confirmed. Held: Stand of the Department is not correct in view of the Apex court's judgment in the case of Commissioner of Central Excise & Customs vs. MDS Switchgear Ltd TIOL-245- SC-CX, wherein it has been held that the receiver manufacturer who had received the duty paid inputs from a supplier-manufacturer is entitled to Cenvat credit of the duty paid by the supplier manufacturer and the CEx Authorities having jurisdiction over the recipient manufacturer cannot review the assessment of the duty at the end of the supplier manufacturer - Demand of Credit is without any basis - CENVAT Credit of duty paid on Welding Electrodes as well as CI Slog Pot is also admissible - Appeal allowed: CESTAT [para 9, 10, 11] Also see analysis of the order 2015-TIOL-1768-CESTAT-MUM Purab Printers Vs CCE (Dated: May 18, 2015) CX - Clause 4(e) of Notfn. 8/2003-CE - Appellant manufacturing and supplying self adhesive labels - Benefit of SSI sought to be denied on the ground that they are branded goods and not covered by clause 4(e). Held: Intention of government is to grant the benefit of SSI exemption to goods, namely, packing material, containers, metal labels etc. which may carry brand name of customers - stated policy is clearly not to consider these labels manufactured by one person themselves as having any connection in the course of trade with the goods manufactured by customer for whom labels are made - Oxford dictionary describes a sticker as "an adhesive label or notice" - no reason not to consider a label as sticker especially in view of the fact that metal labels are also mentioned in clause 4(e) - an interpretation to the effect that stickers would mean only gummed labels is not borne by sound reasoning - labels are eligible for exemption in terms of notification 8/2003-CE as amended by 47/2007-CE - order set aside and appeal allowed: CESTAT [para 5.1, 5.2] 2015-TIOL-1764-CESTAT-MUM M/s Aplab Ltd Vs CCE (Dated: May 15, 2015)

11 CX - CENVAT credit denied on the ground that name of appellant appears as consignee but in the column of buyer, name of dealers are mentioned. Held: Revenue contention is absurd - For taking CENVAT credit on input it is not mandatory that payment towards purchase of the input has to be made - so long as input is duty paid, received in the factory and used in the manufacture, credit is not deniable - appeals allowed: CESTAT [para 5] 2015-TIOL-1763-CESTAT-DEL AMD Metplast Pvt Ltd Vs CCE & ST (Dated: March 18, 2015) CX - Assessee supplied printed sheet to their sister unit charging excise duty at the rate of 16% ad valorem instead of 8% ad valorem - Credit note was issued to sister unit reverse the credit taken by them and also filed refund claim of excess duty paid by them - Assessee submits that sister unit to whom goods were transferred have reversed excess duty, therefore, bar of unjust enrichment has been passed by assessee - As per Ispat Industries Ltd TIOL-2053-CESTAT -MUM, assessee is entitled for refund claim - Appeal allowed: CESTAT 2015-TIOL-1761-CESTAT-MAD M/s Acer India Pvt Ltd Vs CCE & ST (Dated: June 3, 2015) Central Excise - Condonation of delay - Appellant cleared excise duty paid goods to SEZ and claimed refund under Rule 5 of Cenvat Credit Rules 2004, which was granted in adjudication and agitated by Revenue before Commissioner (Appeals), who held the claim time barred, allowed the departmental appeal, and permitted re -credit of the amount debited in CENVAT Account upon which, theappellant repaid the amount refunded - Meanwhile, proceedings were initiated for recovery of interest on the erroneous refund, culminating in the instant appeal contesting the merit of the original refund itself, with COD application for delay of 433 days, taken up for disposal herein. Held: The OIA was passed on and in the said order while allowing the Revenue appeal Commissioner (Appeals) allowed re-credit - The department again issued show cause notice for demand of interest on the refund sanctioned, which was already paid by the appellant in pursuant to the OIA - the reasons of delay is fully justified and beyond their control due to initiation of another round of proceedings against the appellants - following thesupreme Court decision in the case of Collector, Land Acquisition Anantnag and Another Vs. MST. Katiji and Others; and the Tribunal ruling in the case of ARR Enterprise Vs. CCE, Trichy, the delay in filing the appeal is condoned [Para 3] 2015-TIOL-1760-CESTAT-MAD CCE Vs Dynavista Industries Pvt Ltd (Dated: March 17, 2015) Central Excise - CENVAT credit - respondents are manufacturer of Kite Detergent Powder, and discharged duty under Section 4A of the Central Excise Act While clearing the goods, they also cleared in combi-pack containing free offer of detergent soap along with washing powder - credit attributable to the detergent soap which was supplied free along with detergent powder denied in adjudication; and demand for its recovery with interest and penalty confirmed - demands set aside by Commissioner (Appeals) and agitated by Revenue herein. Held: Revenue's only ground is that free supply of detergent soap which was packed inside the detergent powder and therefore respondents are not eligible to avail cenvat credit on the duty paid on the detergent soap as it is not an input - Revenue has not

12 disputed the fact that respondent has discharged central excise duty on the detergent powder under Section 4A - respondents had packed free supply of one detergent soap inside the washing powder of 500 gms. and correctly declared the net weight of the combi-pack of 575 gms. and discharged duty on the detergent powder - respondents are rightly covered under Section 2(f) (3) of Central Excise Act - The lower authority has rightly relied on decision of the Tribunal in the case of Lotte India Corporation which was considered by the Gujarat High Court in its ruling pronounced in the case of Prime Healthcare Products - Revenue's reliance on Perfetti Van Melle ruling misplaced since it pertained to the period prior to amendment of Sec 2(f) while the material period in the instant case is after the amendment and the Gujarat HC ruling applies - no infirmity in the impugned order which is upheld[para 5] 2015-TIOL-1759-CESTAT-DEL M/s Triveni Engineering And Industries Ltd Vs CCE & ST (Dated: June 25, 2015) CX - Assessee is manufacturer of sugar and availed Cenvat Credit of ST paid on transit insurance in respect of insurance of goods during transit from factory to customers premises - Sale of sugar by assessee was on FOR destination basis - As per sale contract sugar was required to be delivered at customers destination - Insurance expenses have been paid by assessee for transportation of goods upto the place of buyer and same has been reimbursed by buyer of goods - As per Suzuki Motorcycle (I) Pvt. Ltd TIOL-1974-CESTAT-DEL assessee is e ntitled to take cenvat credit of insurance premium charges paid by them when there is no dispute that goods were delivered at customers place - Appeal is allowed: CESTAT 2015-TIOL-1758-CESTAT-MAD M/s Ttk Prestige Ltd Vs CCE (Dated: May 27, 2015) Central Excise - CENVAT credit - The issue involved is whether the service tax credit of one unit of the ISD distributed by it to the appellant makes the appellant eligible to it. Held: Tribunal, in Final Order No /2015, dated in the India Cements case held that it is not necessary that the credit earned by one Unit need be consumed by that Unit only, but can be transferred to the other Unit by ISD for consumption - In absence of any dispute as to the earning of the credit distribution thereof is not deniable [Para 4, 5] 2015-TIOL-1757-CESTAT-MUM M/s Ultra Tech Cement Ltd Vs CCE (Dated: June 10, 2015) CX - CENVAT - Rule 2(l) of CCR, Services received and used in residential colony of appellants employees, whether Input Service - Issue no longer res integra - Bombay High Court in case of TIOL-720-HC-MUM-ST has held that services which are rendered at the residential colony of the employees cannot be availed as CENVAT credit - Credit correctly held to be inadmissible - as for penalty, in appellants own case, Tribunal on an identical issue relying on the Andhra Pradesh High Court decision in ITC Ltd TIOL-199-HC-AP-ST has vide its order dated set aside the penalties - no reason to deviate from such view already taken - appeal partly allowed: CESTAT [para 4, 4.1] 2015-TIOL-1756-CESTAT-MUM

13 Indian Petrochemicals Corporation Ltd Vs CCE (Dated: June 22, 2015) CX - Applicant seeking extension of stay on the ground that their appeal has not come up for disposal for no fault of theirs. Held: In the case of Venketeshwara Filaments Pvt. Ltd TIOL-2388-CESTAT-AHM it is held that consequent upon omission of 1 st, 2 nd and 3 rd proviso to section 35C(2A) of the CEA, 1944 by the FA, 2014 it is to be held that there is no provision for making further application for extension of stay and that the stay order passed by the Tribunal, if it is in force beyond , it would continue till the disposal of the appeals and there is no need for filing any further applications for extension of orders granting stay either fully or partially since the stay in the present case was in force beyond , same would continue till the disposal of the appeal - Applications disposed of: CESTAT [para 2, 3] 2015-TIOL-1755-CESTAT-AHM CCE & ST Vs M/s Rajesh Malleables Ltd (Dated: January 8, 2015) Central Excise - Default in payment of duty - Bar of utilization of CENVAT Credit under Rule 8(3A) - No error in the order of Commissioner (Appeals) allowing the appeal in the light of decision by the High Court of Ahmedabad holding Rule 8(3A) unconstitutional - Revenue appeal has no merit. (Para 3&4) 2015-TIOL-1748-CESTAT-DEL M/s Onida Saka Ltd Vs CCE (Dated: June 3, 2015) CX - s.4 of CEA, Valuation - Period of dispute is June, 1994 to August, A manufacturer can always decide to sell his entire production to another person instead of marketing the same himself and incurring expenses on marketing and advertisement himself and for this reason, the manufacturer and his customer cannot be treated as related person - Allegation of undervalution not sustainable - demand set aside - appeals allowed: CESTAT [para 11, 13] Also see analysis of the order 2015-TIOL-1747-CESTAT-AHM M/s Gujarat State Fertilizers And Chemicals Ltd Vs CCE & ST (Dated: June 12, 2015) CENVAT - Activities undertaken by the distributors/ consignment stockists of the appellant are purely distribution/ sales and have no element of sales promotion and, therefore, CENVAT credit taken with respect to commission paid to such distributors/ consignment stockists is not admissible - Credit taken to be reversed along with interest, however penalty set aside as the issue was disputable at the material time: CESTAT [para 6, 7, 8] Also see analysis of the order 2015-TIOL-1746-CESTAT-AHM M/s Aditya Laminators Pvt Ltd Vs CCE, C & ST (Dated: April 17, 2015) CENVAT - Allegation that the appellant had availed cenvat credit on the basis of invoices issued by the non-existent allegedly registered manufacturers/dealers - Range Superintendent of the appellant company had defaced some of the invoices and allowed Modvat Credit at the initial stage as required under the law - it is evident that

14 the appellant had no knowledge that the input suppliers were not registered with the Central Excise Authorities - appellant during the investigation, categorically stated that they received the goods accompanied with Central Excise invoice and duty recorded in Cenvat Register - It is further evident from record that inputs were utilized in the finished goods, cleared on payment of duty - There is no material available that the appellant was party to the fraud - demand hit by limitation - appeals allowed: CESTAT [para 8, 9, 12] 2015-TIOL-1744-CESTAT-AHM Sarla Performance Fibers Ltd Vs CCE, C & ST (Dated: February 24, 2015) CX - Assessee, 100% EOU received duty free imported and indigenous raw materials for use in manufacture of exported goods - Assessee discharged CE duty on goods cleared to the local market, an amount equal to customs duty and therefore, separate demand of custom duty on raw materials would not sustain - Tribunal consistently, viewed in a series of decisions that in case of 100% EOU, CE duty paid on finished goods, demand of custom duty on raw material and penalty under Custom Act cannot be sustained - Central Excise Officers detained seized goods, which was attempted to divert in local market - Confiscation of goods is justified and accordingly imposition of redemption fine is warranted - Impugned order is modified in so far as demand of CE duty of Rs. 1,65,007/- and customs duties of Rs. 10,05,353,59/- on raw materials are set aside: CESTAT 2015-TIOL-1743-CESTAT-DEL Decora Tubes Ltd Vs CCE & ST (Dated: May 5, 2015) CX -Penalty -Rule 26 of CER -Even if the Commissioner could not adjudicate the question of duty demand against the company in view of the liquidation order of the High Court, in our view, the Commissioner could always adjudicate the question of imposition of penalty on the co -noticees: CESTAT [para 7] Also see analysis of the order 2015-TIOL-1739-CESTAT-MUM M/s Zydus Atlanta Healthcare Pvt Ltd Vs CCE (Dated: June 10, 2015) CX- Rule 5 of CCR - Refund - Catering services, travel and car services are entitled for CENVAT credit as input service, therefore, refund admissible - there is no reason for deviating from such view already taken in respect of the very same assessee and reported as TIOL-537-CESTAT-MUM - Assessee appeal allowed: CESTAT [para 5, 6] CX- Rule 5 of CCR - Refund - Appeal by Revenue on the ground that service tax paid on clearing and forwarding agent services are utilised post clearance of the final products from factory and that the ownership of the goods still vested in the assessees hand and that the place of removal cannot be the port where services are received - this argument will not carry the case of the revenue further as the LB of Tribunal in the case of Honest Biobet Pvt. Ltd TIOL-2286-CESTAT -AHM-LB has held that load port is to be considered as place of removal u/s 4(3)(c)(iii) of CEA, services received by assessee at the port of export of goods has to be held as eligible for CENVAT credit under the CCR, Revenue appeal is devoid of merits: CESTAT [para 7, 8] 2015-TIOL-1738-CESTAT-MUM

15 M/s Tata Motors Ltd Vs CCE (Dated: October 24, 2014) CX - CENVAT - Appellant painted body shells received from Fiat India Automobiles P Ltd. on job work basis under rule 4(5)(a) of CCR, after painting, body shells were returned to the principal manufacturer under job work challans without payment of CE duty - finished goods were cleared by FIAT on payment of duty - appellant had availed CENVAT credit of duty paid on inputs such as paints, thinners etc. used in job work - Credit in excess of Rs.38 lakhs denied on ground that appellant is not entitled for credit on inputs used for job worked goods which were cleared without payment of duty; penalties and interest imposed. Held : Issue is no longer res integra as the same has been decided in favour of assessee by LB of Tribunal in case of Sterlite Industries TIOL-305-CESTAT -MUM-LB - appellant is entitled to avail credit - Orders set aside and appeal allowed with consequential relief: CESTAT [para 5] 2015-TIOL-1737-CESTAT-MAD Tvs Electronics Vs CCE (Dated: March 18, 2015) Central Excise - CENVAT credit - appellants are manufacturers of Retail Computer Systems, DOT Matrix Printers - they availed credit on inputs used in the manufacture of Retail Computer system when the same were chargeable to excise duty - Subsequently, the computers were exempted from excise duty vide Notification No.23/2004-CE dt However, on the date of exemption, appellant had certain inputs lying in stock on which the credit was taken much before the date of exemption - Demand for recovery of corresponding credit adjudicated with interest and penalty; relief from penalty granted by first appellate authority; and primary demands agitated herein. Held: During the material period there is no specific provision in CCR for recovery of cenvat credit on the inputs lying in stock when the final product became exempted subsequently - from sub-rule (3) of Rule 11 of CCR was inserted making specific provision where a manufacture is required to pay amount equal to the cenvat credit taken on inputs lying in stock if the final product became fully exempted - High Court of Madras in the case of Tractor and Farm Equipment Ltd. Vs CCE on identical issue examined the case in detail and distinguished the decisions of both M/s.Albert David Ltd. and M/s.Super Cassettes Industries Ltd. and held in favour of the appellant - Cited TAFE ruling is binding on the Tribunal in terms of the Larger Bench decisions in the case of CCE Vs Kashmir Conductors and in the case of Madura Coats Vs CCE - impugned order set aside. [Para 8, 9, 10] 2015-TIOL-1736-CESTAT-DEL Prakash Cable Industries Vs CCE (Dated: February 5, 2015) CX - In facory premises of assessee there was some shortage of finished goods and some goods were found in excess - Assessee has admitted their duty liability and same has been paid alongwith interest and also paid 25% duty as penalty under section 11AC of CEA, 1944 within 30 days of issue of SCN - Impugned order was not required to be passed and proceedings against assessee would be concluded - Confiscation of goods and consequently imposition of redemption fine, penalties are not warranted - Appeals allowed: CESTAT 2015-TIOL-1735-CESTAT-DEL CCE & ST Vs M/s Park Nonwoven Pvt Ltd (Dated: April 8, 2015)

16 CX - Fire broke out in factory of assessee wherein the inputs which were used in manufacture were destroyed - It is admitted fact that inputs were in process of manufacture of final goods - Therefore, the provisions of Rule 3(5B) of CCR, 2004 are not applicable - Assessee are not required to reverse Cenvat credit - As such no infirmity in impugned order, same is upheld - Appeal filed by Revenue is dismissed: CESTAT [Para 9, 10, 12] 2015-TIOL-1732-CESTAT-MAD M/s Celebrity Fashions Ltd Vs CCE (Dated: May 29, 2015) Central Excise - Refund - Claim for Rs.42 lakh under Rule 5 of Cenvat Credit Rules 2004 rejected by original authority - Commissioner (Appeals) held Rs.33 lakh admissible subject to verification by original authority and Rs.9 lakh inadmissible - Tribunal remanded the disputed 9 lakh to original authority - Meanwhile original authority passed de novo order in respect of Rs.33 lakh, granting refund to the extent of Rs.28 lakh and denying to the extent of Rs.5 lakh; same agitated by Revenue before Commissioner (Appeals) who allowed the departmental appeal, now agitated herein. Held: It is ordered that the matter shall go back to Commissioner (Appeals) who shall within a month of making the application by assessee fix the time of hearing and expose the range report to assessee for rebuttal; consider entire facts evidence and law, and pass appropriate order [Para 5] 2015-TIOL-1731-CESTAT-MUM Salsar Ispat Ltd Vs CCE (Dated: May 30, 2015) CX - Penalty - Rule 26 of CER, Penalty imposed of Rs.50,000/- each in the three appeals - Allegation is that the appellant had purchased clandestinely cleared MS Ingots and MS bars from various manufacturers and which fact appellant has admitted - in two of the cases, the suppliers have paid the duty, interest and 25% penalty within 30 days as per section 11A(1A) of CEA, 1944 and in third case part payment was made - appellant seeking setting aside of penalty. Held: Matter is covered by Tribunal's decision in the case of Jay Prakash Agarwal wherein it is held that once the manufacturers have paid duty, interest and 25% penalty, there would be no sense in continuing the proceedings for imposition of penalty under Rule 26 against other persons like traders who had purchased the goods, transporters who had transported the goods cleare d by manufacturer/assessee, the Directors/employees of the manufacturer/assessee company - in respect of two appeals where the matter was settled, penalty not imposable on appellant - however, where the matter was not settled as entire duty was not paid, penalty imposed is in order, also it is not on the higher side - two appeals allowed, and one appeal dismissed: CESTAT [para 4.2, 5] 2015-TIOL-1730-CESTAT-DEL M/s Ricela Health Foods Ltd Vs CCE (Dated: May 14, 2015) CX - Whether fatty acids, wax and gum emerging as by-products during the refining of crude vegetable oil are waste & entitled for the benefit of Nil rate of duty in terms of notification 89/95-CE - conflicting judgments, hence matter referred to Larger Bench: CESTAT [para 6, 7, 8] Also see analysis of the order

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