CESTAT RULING (CENTRAL EXCISE) -...

CESTAT RULING (CENTRAL EXCISE)

2015-TIOL-2335-CESTAT-DEL

M/s Ashish Kumar Ganguli Vs CCE & ST (Dated: August 18, 2015)

CX - As per assessee, impugned order received on 10.01.2014 against which they preferred writ petition on advice of their Director before High Court that too after more than 4 months i.e. on 30.05.2014 - Assessee contends that order of High Court was received by them only on 12.02.2015, wherein High Court has clearly mentioned that remedy against impugned order is available before Tribunal only and on that ground, High Court has dismissed the writ petition - Thereafter, assessee have filed appeals before Tribunal within 135 day i.e. 45 days after 90 days - Reason for causing further delay has been explained by assessee that Director of Company told them that they are preferring appeals against order of High Court before Apex Court in their case - Reasons for causing delay has not been explained satisfactorily - Appeals dismissed: CESTAT


M/s Bharat Sanchar Nigam Ltd Vs CCE & ST (Dated: September 10, 2015) CX - Whether assembly, installation and commissioning of switching system along with power plant and inverter would amounts to manufacture - Goods which have been purchased-Switching systems have remained switching systems only even after installation and no new commodity with distinct commercial identity or character or use has emerged - As per M/S BSNL 2015-TIOL-1018-CESTAT-DEL , activity undertaken by assessee does not amount to manufa cture: CESTAT

2015-TIOL-2325-CESTAT-MUM

Cadbury (I) Ltd Vs CCE (Dated: October 14, 2015) CX - An appellant, howsoever educated, would file appeal before the Joint Secretary only due the instructions appearing in the preamble attached to the Order passed by Commissioner(A) - Delay of 373 days in filing appeal before the Tribunal condoned: CESTAT [para 4]

Also see analysis of the order

2015-TIOL-2324-CESTAT-MAD

Vignesh Alloys Pvt Ltd Vs CCE (Dated: March 18, 2015) Central Excise - CENVAT credit - Appellant availed credit where the duty debit was made in DEPB in respect of CVD - same disallowed in adjudication on the ground that adjustment of CVD paid in DEPB scrips under EXIM Policy 2002-07 was not eligible to be availed as per the restrictions read with exemption notifications; and agitated herein.

Held: During the relevant period Para 4.35 of EXIM Policy 2002-2007 was amended vide Notification No.28[RE-2004)/2002-2007 dt. 28.1.2004 where the restriction of DEPB as mentioned in last sentence of the paragraph has been deleted - Identical issue has already been settled by the High Court of Punjab & Haryana in the case of

CCE Ludhiana Vs Neel Kanth Rubber Mills and High Court of Madras in the case of CCE Vs SPIC Ltd. - appellants are eligible to avail credit on the CVD made in DEPB; impugned order is set aside [Para 2, 4]

2015-TIOL-2323-CESTAT-AHM

M/s Neminath Fabrics Pvt Ltd Vs CCE & C (Dated: July 9, 2015)

CX - Assessee is not contesting demand of duty alongwith interest on merits but submits that benefit of cum-duty-price should be extended for quantification of demand of duty and also the benefit of CENVAT credit should be allowed - Adjudicating Authority is directed for quantification of demand of duty, after extending benefit of cum-duty-price and CENVAT credit after verification of records - He would also extend the option to pay penalty 25% of duty in terms of Section 11 AC of Act, 1944.

As regards to imposition of penalty on Director, it is a clear of case clandestine removal of goods - It is noticed that he had indulged for removal of goods without payment of duty, which was detected by Central Excise Officer - He knowingfully well cleared the goods without payment of duty, and penalty under Rule 26 is justified - Penalty is reduced to 50,000.00: CESTAT


M/s Rewa Fans Industries Vs CCE (Dated: July 28, 2015) CX - For the period prior to 1.7.2000 when the price on which goods are generally sold is the correct assessable value or not - Issue is settled by Apex Court in Elgi Equipments Ltd . 2007-TIOL-161-SC-CX - During that period, 95% of production was sold to M/s. PDV as sole distributor at a certain price, therefore, price at which goods have been ultimately sold to M/s. PDV shall be the assessable value - Demands for period January, 1986 to August, 1987 as confirmed by way of impugned order is set aside - For period September, 1987 to November, 1988, the price at which M/s. RMPL sold the goods to M/s. PDV is assessable value as M/s. RMPL is the related person - Assessable value is decided - As there were no malafide on part of M/s. RFI for short payment of duty, penalty is not imposable: CESTAT


M/s Aravali Marbles Vs CCE & ST (Dated: September 10, 2015) CX - Manufacture - Assessee engaged in production of Marble Slabs / tiles from rough irregular marble slabs - Production of cut to size marble slabs and polished marble tiles from marble blocks and marble slabs do not amount to manufacture - Note 6 inserted in Chapter 25 of Tariff S.E. 01.03.2006 makes it clear prior to that date, any person carrying out such process will not be subjected to excise - Processes specified in said chapter note cannot be held classificatory in nature - Rajasthan High Court in case of Anmol Granites held that Apex Court's decision in case of Aman Marbles Industries Pvt. Ltd. implies to fact that cutting and polishing of granites into slabs and tiles do not amount to activity of manufacture and such decision is binding on all Tribunals in India - Appeal allowed: CESTAT


Agro Tech Foods Ltd Vs CCE & ST (Dated: September 4, 2015)

CX - Notfn 6/2002-CE - Assessee engaged in activity of repacking from bulk to retail packs of 1, 2 and 5 liters - As per Chapter note 4 of Chapter 15 of CETA, 1984, activity of repacking from bulk to retail amounts to manufacture - It is settled law that when there are two views possible on notification, the view which is more beneficial to assessee is to be applied - Assessee feels that payment at discharge of duty at Rs. 1 per kg of unit container of refined edible oil manufactured by them would be more advantageous to them and has chosen to pay them - Entry at Sl. No. 244 (C) of notification is not applicable - Cenvat Credit cannot be denied to assessee and assessee is availing Cenvat Credit and paying duty on their final product, therefore, provisions of section 11D are not applicable: CESTAT


Kalpena Industries Vs CCE & ST (Dated: July 23, 2015) CX - Assessee removed duty paid inputs in a godown situated away from factory - Assessee submits that they intimated Department by letters dt.18.07.2007 and 01.04.2008 for granting permission under Rule 8 of CCR, 2004 - Irrespective of arguments taken by assessee, fact remains that such inputs were cleared without necessary permission and without reversal of appropriate amount of CENVAT Credit as undertaken by assessee - As per provisions of CCR, 2004, when inputs are cleared as such from factory premises, then equivalent amount of CENVAT Credit is required to be reversed - By not doing so, assessee has contravened provisions of CCR, 2004 and by virtue of provisions contained in Rule 15(1) of Rules, 2004, such inputs are liable to confiscation - Total CENVAT Credit on goods stored outside factory premises has been calculated to Rs.4,44,626.00, hence, redemption fine of Rs.6,67,800.00 is excessive which is reduced to Rs.1 lakh.

So far as denial of CENVAT Credit of Rs.4,44,626.00, alongwith interest and equivalent amount of penalty is concerned, it is required to be verified by Adjudicating authority that inputs stored outside factory premises, released on redemption, were actually used in manufacture of finished goods by assessee or were cleared as such after discharge of appropriate amount of duty.

Penalties upon other assessees for violating CCR, 2004, can only be imposed under penal provisions of CCR, 2004 and not under Rule 26 of CER, 2002: CESTAT


Bayer Cropsciences Ltd Vs CCE (Dated: October 8, 2015) CENVAT - Requirement of canteen in a factory is a statutory requirement under the Factories Act, 1948 - Cleaning of the utensils in the canteen for providing hygienic food cannot also be disputed - similarly using of clean uniform in the course of manufacturing of final products cannot also be disputed as unwanted expenses - Steam used in canteen for cleaning of utensils and in laundry for cleaning uniform is to be considered as used within the factory in relation to manufacturing activity - Credit not deniable on furnace oil used for producing steam - Appeals allowed: CESTAT [para 6.2, 6.3]



Babaji Udyog Vs CCE (Dated: September 7, 2015) CX - When the proceedings against the manufacturer stand concluded on payment of disputed amount of duty plus interest and 25% of the duty as penalty, there would be

no sense in continuing the proceedings for imposition of penalty u/r 26 against other persons like traders who had purchased the goods, transporters, the directors/employees of the manufacturer/assessee company: CESTAT [para 9, 10]



Garden Silk Mills Ltd Vs CCE, C & ST (Dated: September 21, 2015)

CENVAT – Interest, Penalty - Appellant had reversed the credit as soon as it was pointed out that they had wrongly availed the same – appellant had not utilised the Cenvat Credit so availed till the time of reversal - Therefore, the decision of Jurisdictional High Court in Dynaflex Pvt Ltd , relying upon the decision of the Supreme Court in Bombay Dyeing & Mfg. Co. Ltd. - 2007-TIOL-141-SC-CX on the very same issue is applicable in this case – Held that no interest u/r 14 of CCR, 2004 is payable - On the issue of penalty under Section 11AC, it is seen that the same is not leviable as there was no intention to evade duty, as is evident from the facts of the case – Appeal allowed: CESTAT [para 5, 6]

2015-TIOL-2303-CESTAT-KOL

Neha Confectionery Pvt Ltd Vs CCE (Dated: August 14, 2015) CX - Penalty - Assessee had by mistake availed CENVAT Credit on inputs utilized in manufacture of biscuits which were dutiable and also exempted wherever retail sale price was below Rs.50/- - They had initially not paid 10% of price of exempted biscuits and also not reversed CENVAT Credit when opted out of CENVAT Credit which has resulted non payment of liability - Said amount has been paid a longwith interest by assessee, when pointed out by Department accepting their mistake of short payment of said amount - Commissioner(A)'s observation that had the department not pointed out discrepancy deficit amount would not have been paid, is an inference not supported by allegation in notice nor any evidence leading to conclusion that assessee had suppressed facts - Penalty imposed under Section 11AC of CEA, 1944 read with Rule 15 of CCR,2004 is unsustainable: CESTAT


SAIL Vs CCE (Dated: July 9, 2015) CX - Availment of Cenvat Credit by assessee on G.C. Sheets claiming the same being used in or in relation to manufacture/fabricatio n of capital goods, machinery and mechanical appliances and parts thereof - Issue relates to interpretation of Larger Bench decision of Tribunal in Vandana Global Ltd. 2010-TIOL-624-CESTAT-DEL-LB, on eligibility of disputed item as capital goods - Since demand is for extended period, assessee is able to make out a prima-facie case for total waiver of pre -deposit of dues adjudged: CESTAT


Areva T & D India Ltd Vs CCE & ST (Dated: September 16, 2015)

Central Excise - Jurisdiction of Tribunal - Show Cause Notice issued by the Commissioner, Kolkata and Order in Original passed by the Commissioner (LTU),

Chennai - Application by revenue seeking transfer of appeal from Chennai Bench to Kolkata Bench.

Held: Impugned Order was passed by the Commissioner, LTU, Chennai and appeal lies with the Tribunal Bench where the cause of action arose. In the present case, Order has been passed by Commissioner, LTU, Chennai, falling within the jurisdiction of Chennai Bench falling within the jurisdiction of the High Court of Madras. Therefore, the respective appeal would lie in Chennai Bench - Request of revenue to transfer the appeal to Kolkata Bench is rejected - Application to change in cause title allowed. (para 5)



Perfect Strips Ltd Vs CCE (Dated: August 12, 2015)

CX - In the first round, Duty demand confirmed by holding that the process of converting H.R. Coils/strips into C.R. Strips is manufacture of processing as per Section 2 (f) of CEA, 1944 and imposing penalties - Tribunal holding that activity does not amount to manufacture - Apex Court disposed of the Civil Appeal by ordering remand and holding that burden is on the department to prove that the process of manufacture resulted in emergence of a commercially distinct commodity; that evidence has to be led before the adjudicating authority in this regard - in remand proceedings, Commissioner again confirming duty demand - appeal to CESTAT.

Held: Commissioner has not decided the issue on whether the activity undertaken by the appellants amounts to manufacture or not as per Section 2(f) of the CEA, 1944 as directed by the Apex Court - Matter remanded: CESTAT [para 9]


Micropure Parenterals Pvt Ltd Vs CCE (Dated: October 7, 2015)

CX - CENVAT – Rule 3(7)(a) of CCR, 2004 - Notification 23/2003-CE does not reduce the rate of basic customs duty but the quantum is reduced by 75% - the term 'BCD' in the second proviso implies the basic custom duty applicable on the goods by a normal importer from abroad – Credit correctly taken – Appeal allowed: CESTAT [para 7, 8]



Madura Coats Pvt Ltd Vs CCE (Dated: April 24, 2015)

Central Excise - Intere st (on Refund/Rebate) - Adjudicating authority sanctioned rebate on duty paid on the multiple folded yarns exported consequent to High Court order but denied interest on delayed refund; same upheld by Commissioner (Appeals) and agitated herein.

Held: The rebate was initially sanctioned and the same was appropriated towards dues arising from a different demand - appeal was filed against the Commissioner (Appeals) order and stay was obtained and subsequently extended - During the period when stay was not extended by the Tribunal as there was no Division Bench sitting, the authority has adjusted the amount sanctioned towards recovery by holding that there was no stay - appellant filed writ petition before the High Court of Madras, whose Madurai bench set aside the said recovery and directed the department to release the impugned rebate - the said amount was released OIO dated 10.12.2012

(disputed herein) - since the original amount was sanctioned Nov 2011, which was initially appropriated but subsequently released on 10.12.2012, the appellants are eligible for interest on the delayed payment - Tribunal in the appellant's own case has set aside the orders denying interest - By consistently following the above decisions in the appellant's own case, the impugned order is set aside and the appeal is allowed. [Para 5]


Mani Omega Granites Pvt Ltd Vs CCE (Dated: September 8, 2015)

Central Excise - Exemption -Adjudicating authority demanded duty from the Appellant, an EOU, on various items and also imposed penalty - Commissioner (Appeals) in the impugned order allowed exemption notification respect of Kerosene, Diesel, Drill Steel, Drill Rods and rejected benefit of Central Excise Notification No.37/2000 dt. 8.5.2000 and Customs Notfn 58/2000 dt. 8.5.2000 on Button Bits, Spares for Excavators, Tyres and Tubes and also set aside penalty, agitated herein.

Held: Appellant claimed exemption for the items under table Sl.No.30 as Consumables and Tools - Applicability of Notification 1/95 CE and 22/03 CE has been clearly distinguished in the impugned order, holding that notifications 37/2000-CE and 58/2000-Cus are specifically meant for quarrying granite by 100% EOU/FTZs where a list of items have been allowed exemption - The description of items have been listed at Sl.No.1 to 29 which are permissible under the notification whereas Sl.No.30 allows "consumables and tools" - parts of excavator, button bits, tyres and tubes can by no stretch of imagination be considered as consumables; therefore, appellants are not eligible for exemption on spares for excavators, tyres and tubes, button bits - no infirmity in the order of Commissioner (Appeals), and the same is upheld. [Para 5]


CCE Vs Sanmar Foundries Ltd (Dated: September 7, 2015)

Central Excise - Speaking order - the appellate order shows that Commissioner (Appeals) has not examined what was the service provided with the evidence if any on record - He simply cited certain judgments and granted relief to the respondent - Such abrupt conclusion not being permissible in law, the order cannot be said to be reasoned and speaking - In view of above legal infirmity, the matter is sent back to Commissioner (Appeals) to issue appropriate notice; afford reasonable opportunity of hearing; and pass a reasoned and speaking order.


Emerson Network Power (I) Pvt Ltd Vs CCE (Dated: September 07, 2015)

CX - Appellant importing inputs on payment of duty and some of the inputs were later cleared to various depots and branch offices for purpose of warranty replacement on reversal of credit taken at the time of import - Revenue alleging that value should be taken as 115% or the price at which such warranty replacement parts have been sold by the appellant from their warehouses - appeal to CESTAT. Held: In appellant's own case - 2014-TIOL-2067-CESTAT-MUM , Tribunal has allowed the appeal by taking a stand that reversal of credit would suffice and there is no need for re -determination of value in view of the Board's Circular 813/10/2005-CX dated 25.4.2005 - following the said decision, appeal is allowed: CESTAT [para 5]


M/s Amalgamations Repco Ltd Vs CCE (Dated: July 15, 2015)

Central Excise - CENVAT credit - Dispute relates to admissibility of credit - During the material period, capital goods cleared by the appellant had enjoyed the capital goods credit when acquired - But such credit was denied by the department on the ground that no duty paid clearances were made by appellant as a job worker.

Held: The acquisition of capital goods and use thereof in manufacture was not in dispute - When the job worker appellant was entitled to the exemption under mandate of notification, that does not alter characteristics of manufacture under Section 2(f) of the Central Excise Act, 1944 - denial of capital goods credit to the appellant is uncalled for - assessee's appeal allowed and Revenue's appeal dismissed. [Para 2, 3]


M/s Kannappan Iron & Steel Co Pvt Ltd Vs CCE (Dated: July 07, 2015)

Central Excise - Clandestine clearances - goods not accompanied with documents intercepted and investigated, confiscation of seizure with RF option, duty demand with interest and penalty adjudicated and agitated herein.

Held: Discovery of certain papers and documents during investigation revealed that the transporters have occasioned movement of goods without invoice proving the origin and destination thereof, evidenced to have originated from factory of the appellant - Appellant failed to prove its bonafide demonstrating the transactions as accounted - Impugned order sufficiently proves the case of Revenue as to the removal of the goods without payment of duty - Procurement of M.S. scrap was unaccounted and use of the unaccounted scrap in manufacture of the finished goods was not rebutted - adjudication order upheld. [Para 4.1-4.3]


CCE Vs Mrf Ltd (Dated: March 26, 2015)

Central Excise -CENVAT credit - respondent's unit located at Tiruvottiyur is engaged in manufacture and export of truck tyres, flaps, tractor tyres etc. - They availed cenvat credit on the duty paid on the packing materials which were subsequently cleared to Export Processing Godown (EPG) without payment of duty under CT-2 Certificate under cover of invoices to EPG for use in the packing of tubes and tyres - Revenue viewed that the availment of cenvat credit in respect of packing material meant for use exclusively at their EPG unit is erroneous and adjudicated denial, recovery of credit with interest and penalty under Rule13 (2) of CCR read with Section 11AC of Central Excise Act - Commissioner (Appeals) allowed the appeal of the assessee, agitated by Revenue herein.

Held: No dispute that the respondent has cleared packing material under CT2 certificate to their own EPG for export purposes - there is no dispute on the export of finished goods which contained packing material from the EPG - the appellant followed procedure under Central Excise Rules and duly followed CT-2 procedure as per notification 43/2007 dt. 26.6.2007 - The respondents are eligible for cenvat credit on the packing material - Under sub-rule (5) (vi) of Rule 6 of CCR, the provisions of rule 6 are not applicable as the goods were cleared for export under bond in terms of provisions of CER - Accordingly the respondents are not required to reverse the cenvat credit while clearing under CT-2 certificate to their EPG unit - no infirmity in the impugned order which is upheld. [Para 5]


M/s BHEL Vs CC&CE (Dated: August 13, 2015)

CX - Whether assessee is entitled for benefit of exemption notfn 67/95 - Assessee received purchase order from Bhopal unit of BHEL for supply of item namely, Automatic Storage Retrieval System (ASRS) - Some items for bring into existence of complete ASRS, assessee bought from market, some of items from other vendors and directly supplied at site on payment of excise duty and some of items manufactured themselves and cleared on payment of duty - All these items were assembled, erected and installed as ASRS at site of Bhopal unit - Said exemption notfn is available for capital goods and ASRS is falling under CTH 84.26 which is specified in definition of capital goods - Assessee is entitled for benefit of Notfn 67/95 CE - Therefore, assessee is not required to pay duty on impugned goods: CESTAT


M/s Vidhwath Electricals Vs CCE (Dated: April 17, 2015)

CX - Account Current (PLA) - Divergence in recording correct opening balances consistent with previous closing balances in the impugned ER-1s - demands adjudicated and agitated herein.

Held: Entire demand has been raised purely on the basis of the figures indicated in the Account current as shown in both ER -1 returns - appellants have remitted an amount of Rs. 3,88,310/- and Rs. 1,91,580/- respectively on 04.11.2010- plea that there is an error while filing e-return for the month of December and January in both the cases admissible - both cenvat and PLA Account clearly shows sufficient balance in cenvat credit during the period September, 2010 to March, 2011 - evident from the e-receipts credit in the PLA account was available before the next clearance - impugned demand confirmed only on the ground that the appellant failed to produce sufficient evidence of payment details - Considering the proof of payment of e-receipts, which is on record and the same can be verified from the system ACES data base by the adjudicating authority, confirming the demand only on the basis of ER-1 entry is not justified - impugned order is set aside and the matter is remanded to the adjudicating authority with a direction to reconcile the figures in the account current of both the appellants by taking into account the e -receipts already made in the month of November, 2010 and to consider the amendment of ER-1 returns filed by the appellants to decide the issue afresh after affording reasonable opportunity to defend their case - the appellants are directed to produce all documents before the adjudicating authority [Para 4]


Maharashtra Aldehydes & Chemicals Ltd Vs CCE (Dated: September 16, 2014) CX - Appellants are engaged in the manufacture of "Thione" on job-work basis and clear the same to the principal manufacturer under Notf. 214/86 - appellants are availing CENVAT Credit on raw materials - Alleging that no credit is admissible for exempted goods, demand confirmed of Rs.49,47,028/- with penalty etc. and which order was upheld by Commr(A) - appeal to CESTAT Held: Goods manufactured on job work basis are ultimately used by the manufacturer of final products, the principal manufactu rer who are paying excise duty @ 12% ad valorem - issue is no longer res integra as the matter is settled by the Larger Bench decision in Sterlite Industries Ltd. - 2005-TIOL-305-CESTAT -MUM-LB (affirmed by the Bombay High Court) holding that credit cannot be denied - order set aside and appeal allowed with consequential benefit: CESTAT [para 5]


Tankeshwari Metal Powder Products Pvt Ltd Vs CCE & ST (Dated: July 2, 2015)

CX - Assessee took Cenvat Credit in respect of MS Angles, Channels and Beams which according to them were used in manufacture of tanks - Use of steel items for fabrication of tanks and availment of Cenvat Credit was declared by them in ER -1 Returns filed by them - It is also seen that para 2 of SCN itself states that on scrutiny of said returns filed by assessee, it was revealed that they have taken Cenvat Credit on structural steel items like Angle, Channel, Beam used by them in manufacturer of parts of capital goods and that Cenvat Credit was availed appears to be inadmissible - Since availment of Cenvat Credit in respect of Steel items and their use has been declared for ER-1 Return, it was responsibility of Jurisdictional Assistant Officer to immediate verify their claim and as such it cannot be said that assessee did not disclose availment of Cenvat Credit - Therefore, assessee have a case in their favour on limitation: CESTAT


CCE Vs Sai Mirra Innopharm Pvt Ltd (Dated: September 16, 2015) Central Excise -Default in payment of duty - the issue relates to applicability of Rule 8 (3A) of Central Excise Rules on the default payment - The adjudicating authority ordered for payment of excise duty on consignment basis for two months in P.L.A without utilization of cenvat credit, which was reduced to 15 days by Commissioner (Appeals), agitated by Revenue - On the assessee's appeal, penalty imposed for belated payment under Rule 8(3A) is agitated.

Held: Madras High Court in the case of Malladi Drugs & Pharmaceuticals struck down the Rule 8(3A) as ultra vires, relying upon a Division Bench ruling of the Gujarat High Court in the case of Indsur Global Ltd., v. Union of India, wherein the Court declared that the condition contained in sub-rule (3A) of Rule 8 for payment of duty without utilizing the CENVAT credit till an assessee pays the outstanding amount including interest is unconstitutional - This bench of the Tribunal applied the ratio of the HC ruling in a batch of appeals in Cheran Cements Ltd. & Others Vs CCE Trichy - In view of the same, assessee's appeal is allowed and the Revenue appeal is rejected. [Para 2]


Pricol Ltd Vs CCE (Dated: September 7, 2015) Central Excise -CENVAT credit - Appellant as principal manufacturer engaged job worker to convert liquid ammonia to nitrogen, using pipelines both ways - Commissioner (Appeals) failed to consider the status of the supplier of nitrogen as the appellant's job worker; hence contributed to the dispute on admissibility of cenvat credit - certain tools manufactured by the appellant in its factory were meant for re -use thereof on behalf of their client; they were cleared under invoice, excise duty was collected from their clients and the duty so collected was paid to Treasury - Such duty paid tools were used for clients hence there cannot be denial of the CENVAT credit - Commissioner (Appeals) erred in holding that non-clearance of the tools shall disentitle the appellant to the CENVAT credit


Commissioner Vs Rane Trw Steering Systems Ltd (Dated: August 13, 2015) Central Excise -CENVAT credit - respondent took credit of the service tax paid on transporting the goods out of the factory for delivery at the premises of the buyer; same denied in adjudication but allowed by Commissioner (Appeals) and agitated by

Revenue herein.

Held: When the claim of the respondent was that it satisfies the requirement of the CBEC circular, it should have produced the document before Commissioner (Appeals) for examination, which was not done - Commissioner (Appeals) therefore directed lower authority to verify relevant evidence for the material period - impugned order does not call for interference. [Para 4]


Pallava Textiles Ltd Vs CCE (Dated: September 4, 2015)

Central Excise – CENVAT credit - Denial of cenvat credit availed by the appellant on the inputs Lycra Spandex yarn and cotton yarn, during the period March,2001 to July, 2001 used in the manufacture of final product ‘Covered spandex yarn', classifiable under 5205.90 and chargeable to Nil rate of duty – Notice was issued, proposing denial of irregularly availed credit (already reversed) – Simultaneously, department also issued another SCN proposing re -classification of their final product ‘Covered spandex yarn' from ch. 5205.90 to ch. 5201.11 of CET – The re -classification was confirmed as proposed with differential duty demand, which was accepted and complied with – subsequently, the notice proposing recovery of credit was adjudicated; demand for recovery confirmed with interest and penalty, modified by Commissioner (Appeals) and agitated herein.

Held: The appellants initially availed the credit when the final product was exempted but when the department re -classified the product Covered spandex yarn form ch. 5205.90 to ch. 5205.11, the final product becomes chargeable to duty, and the appellants eligible for cenvat credit on the inputs used in the said final product - Once the department demanded duty on the final products at a later date by changing classification the appellants are eligible for modvat credit on the inputs, in terms of the rulings pronounced in the cases of Reckitt Bencksier, Ajay Industrial Corporation, andSanganariyaWoollen Mills - the appellants are eligible for input credit availed on the inputs Lycra Spandex yarn from the date of availing credit used in the manufacture of Covered spandex yarn, classified under Ch. 5205.11 as the final product is no more exempted and becomes dutiable - However, the appellants have utilized the credit of Rs. 90,663/- when the final product was not dutiable till the classification was decided under ch. 5205.11, therefore they are liable for penalty under Rule 25 to the extent of Rs.25,000 - the appellants are eligible for re -credit of cenvat credit which was already reversed; Demand of Rs. 90,663/- and Penalty imposed under Section 11AC are set aside. [Para 5]


Govind Nagar Sugar Ltd Vs CCE (Dated: July 9, 2015) CX - Cenvat credit on various items like MS sheets, plates, joist and channel used for purpose of manufacture / installation of molasses tanks and boiler - Assessee has procured these steel items which have been used for making / fabrication of structural supports of various machinery, namely, cane carrier, juice heater, evaporator, pan station, centrifuging machine, juice clarifier and sugar grader of Drier House and these are capital goods which been further used in manufacturing of sugar and molasses - Assessee is entitled to take Cenvat credit on these inputs as inputs of capital goods - Same has taken the support of CBEC Circular No. 964/07/2012 CX dated 2.4.2012 - Appeal allowed: CESTAT


Sterling Tools Ltd Vs CCE & ST (Dated: August 5, 2015) CX - Valuation - Automobile parts sold in boxes of 100 pieces each to wholesale dealers - as the fasteners are sold by the appellant to wholesaler in bulk enabling the wholesaler to sell, distribute or deliver such fasteners to the consumer in smaller quantity, they are to be considered as wholesale package in terms of rule 2(x) of PCR, 1977 and since in terms of rule 29 there is no requirement to declare retail sale price, duty payment based on transaction value u/s 4 of CEA, 1944 is legal and proper - no cause for valuing the impugned goods u/s 4A of CEA, 1944 - Order set aside & appeal allowed with consequential relief: CESTAT [para 13, 16, 17]



Vividh Industries Vs CCE & ST (Dated: June 22, 2015)

CX - Admissibility of CENVAT credit on rejected finished goods under Rule 16 of CCR, 2004, which are meant for repair and reconditioning - Rule 16(1) conveys that where any finished goods are received for remaking, refining, reconditioning or for any other reason, then an assessee shall state the particulars of such receipt in his record and shall be entitled to CENVAT credit of duty paid on returned goods - Conditions prescribed in Rule 16(1) are fulfilled - CENVAT credit can not be denied on procedural lapses when rejected containers were duly reflected in CENVAT credit account and shown utilised - One to one correlation of rejected containers received with subsequent clearances is not prescribed under Rule 16: CESTAT


Satyapal Shivkumar Vs CCE & ST (Dated: July 30, 2015) CX - Assessees are manufacturer of chewing tobacco and availed of exemption from excise duty under Notfn 8/2004-CE - For the manufacture of finished chewing tobacco, they manufactured inter mediate product called compound which was used for captive consumption in same factory - Whether assessees are eligible for exemption on compound under Notfn 52/2002, as their finished products i.e. chewing tobacco are wholly exempt under Notfn 8/2004 - Said compound classifiable under Chapter Heading 2404.41 of CETA, 1985 and under 24039930 after 28/02/2005, is specified in Notfn 8/2004 - Assessee contends that notfn 52/2002 is not applicable to inter-mediate products where final products are wholly exempt from duty - Since final products are exempt subject to certain conditions, said final products cannot be said to be wholly exempt - Impugned order set aside with the direction to adjudicating authority for passing a fresh order: CESTAT


CCE Vs Numaligarh Refinery Ltd (Dated: June 25, 2015) CX– Refund claim filed on the ground that the transaction value on which duty was paid at the time of clearance of the goods to customers, namely, M/s IOC, M/s IBP, M/s HPCL, the Oil marketing companies, had been on higher side than the transaction value realized/received from the said OMCs – Original authority rejecting claim but Commissioner(A) allowing the appeal – Revenue in appeal before CESTAT.

Held: It is evident that the Respondent had initially paid the duty on the basic price without deducting the notional freight element from the price, but a fter realization of the mistake, filed the refund claim – no reason to disagree with the conclusion of Commissioner(A) – refund is allowable, in principle - no issue of correctness or

otherwise of the transaction value determined on the basis of the said Agreements, which is neither raised in the demand notice nor in the grounds of appeal, cannot be re-opened at this stage, which would otherwise result into traveling beyond the scope of the show-cause notice – however, both sides agree that it is necessary to ascertain the fact whether initial transaction value was higher and subsequent transaction value after deducting the notional freight, applying clause 5.4 of the agreement, became lower before allowing the said claim to the respondent – matter remanded to adjudicating authority to complete the verification and decide claim within three months: CESTAT [para 8.4, 8.5, 8.6]


Arofine Polymers Ltd Vs CCE (Dated: May 12, 2015) CX - CENVAT credit on Angles, Channels, Tubes, Rails etc. - Admissibility of credit was the subject matter of Larger Bench decision in Vandana Global Ltd. - 2010-TIOL-624-CESTAT -DEL-LB as there were contrary views in the matter - appellant could have had a bonafide belief that credit was admissible - it cannot be alleged that the appellant has suppressed the fact of any ingredient so as to invoke the extended period of limitation - Demand time barred, hence appeal is allowed: CESTAT [para 5]


CCE Vs Danisco India Pvt Ltd (Dated: August 19, 2015) CX -Assessee are manufacturer of excisable goods and registered with CE department as well as Haryana Sales Tax Act 1972 - amount of Sales Tax has been collected from the buyers / customers and retained by the respondent as per the tax waiver scheme of the Government of Haryana - As per Maruti Suzuki India Ltd. 2014-TIOL-74-SC-CX, amount of sales tax concession retained by the respondent is required to be added in the assessable value - As regards to limitation, there were view taken by CBEC Circular and Tribunal in favour of assessee which has been negated by Apex Court in decision cited - Extended period of limitation is not invokable - Adjudicating authority is directed to quantify the demand pertains to period within limitation which shall be paid by assessee within 30 days of quantification along with interest: CESTAT


Jharna Cement Pvt Ltd Vs CCE & ST (Dated: August 20, 2015)

CX - Clandestine clearance of cement - During visit of CE officers, 7 chits were found against which 85MT of cement was shown to have been cleared - Main assessee also paid duty with respect to 85MT of cement - Certain invoices/challans issued by main assessee were also recovered suggesting use of separate set of invoices for effecting clandestine removals - Revenue has brought other corroboration on record, the veracity of which has to be gone into detail during course of final hearing - Main assessee is directed to deposit an amount of Rs.20.00 Lakhs: CEST AT


Ellenbarrie Industrial Gases Ltd Vs CCE (Dated: August 7, 2015)

CX - Assessee had availed CENVAT Credit on cylinders used in transporting various gases claiming it as capital goods - Assessee have placed necessary evidences and established before adjudicating authority that entire CENVAT Credit was not in relation to transfer of exempted gases only but both dutiable as well as exempted gases - No

allegation of suppression of facts in availing CENVAT Credit on cylinders - Assessee while claiming CENVAT Credit on these cylinders as capital goods, disclosed all the facts to Department, hence, imposition of penalty under sub-rule (2) of Rule 13 of CCR, is unwarranted - As assessee have contravened provisions of CCR in availing CENVAT credit on cylinders, present facts fall under category of sub-rule (1) of rule 13 of Rules, 2002 - Consequently, assessee is liable to pay penalty under said rules and maximum penalty imposable is Rs.10,000/-: CESTAT


CCE Vs Uttam Galva Steels Ltd (Dated: October 6, 2015)

CX - Valuation - s.4 of CEA, 1944 (before and after 01.07.2000) - Sales Tax Incentive deferment scheme & option to pay prematurely in place of the deferred tax amount, an amount equal to the NPV (Net present value) of the deferred tax - Revenue view that the diffe rential between the deferred sales tax payable and NPV paid would form part of the assessable value is untenable - actual amount paid is equal to NPV (which is less than originally payable), cannot make the amount actually payable at the time and place of removal different, particularly when under Sales Tax Law such a payment is considered as deemed payment of the sales tax payable - Revenue appeals dismissed and assessee appeals allowed: CESTAT [para 35, 37, 38, 39, 43, 44, 47]



M/s Lakshmi Packaging Pvt Ltd Vs CCE (Dated: July 7, 2015)

Central Excise - classification - appellants are engaged in printing of PVC films - The duty paid polypropylene films are subjected to process of printing of customers logo, trademark or design etc. and ready for use as wrapper for sewing threads - The appellants classified the printed PVC films under 4901.90 as a product of printing industry whereas Department classified the goods under 3920.39 - In the first round of litigation when the issue came up before the Tribunal, the case was remanded to the adjudicating authority to decide the issue in the light of the Supreme Court's decision in the case of Metagraphs Pvt. Ltd. and also to consider Section Note 2 of Section VII of Central Excise Tariff Act - adjudicating authority in his denovo order accepted the classification under Heading 490190 as products of printing industry and dropped further proceedings - Revenue preferred appeal against it and the Commissioner (Appeals) allowed the Revenue's appeal, holding that the goods are classifiable under 3920; now agitated herein in the second round of litigation.

Held: Tribunal, in the Final Order No. 659 to 683/2011 dated 9.8.2011 in the case of Srikumar Agencies & Ors. examined the issue in detail taking into account of Supreme Court's decision in the case of Union of India Vs. Rollatainers Ltd.; squarely applicable to the instant case - Supreme Court in the case of Holostick India Ltd. Vs. Union of India settled the issue of what construes the products of printing industry classifiable under Chapter 4901 of CETA, 1985 and held in favor of the assessee- following the rulings, the product 'printed PVC film' is classifiable under Chapter 490190 chargeable to nil rate of duty; accordingly, the impugned order is set aside [Para 7, 8, 10]


M/s Jalan Carbon And Chemicals Ltd Vs CCE & ST (Dated: July 8, 2015)

CX - Whether assessee had manufactured and cleared Dehydrated Coal Tar classifiable under chapter sub-heading 26.06 or Coal Tar Pitch under CSH 27.08 of CETA, 1985 - Evidences adduced by both sides in their favour, would be examined at the time of disposal of appeal - Considering the financial hardship expressed by assessee, same is directed to deposit Rs.12.00 Lakhs: CESTAT


Holostik India Ltd Vs CCE (Dated: September 25, 2015) Central Excise - Classification - appellants are manufacturers of holograms and clearing the same to the State Excise and Prohibition Department, Govt of Tamil Nadu classifying the product under 4901 of the Central Excise Tariff and clearing the same without payment of duty - Revenue viewed the same classifiable under chapter 3919 of CET and chargeable to appropriate rate of duty - Duty demand with interest and penalties on the firm and individuals confirmed in adjudication under proviso to Sec 11A, Sec 11AB, Sec 11AC of CEA 1944 and Rule 26 of CER 2002; now agitated by the firm and individuals herein.

Held: No dispute on the fact that hologram contained logo of Govt of Tamil Nadu State with signature of State Excise Commissioner along with high security features such as multi level animation effect, four channel image, pearl effect, Micro text and 3D True object image; and that hologram printed and supplied by the appellants to Govt of Tamil Nadu is a high security label affixed on the IMFL and other distillery products marketed by the T.N. State Govt to prevent from spurious / fake products - Mumbai bench of Tribunal in the case of Holographic Security Marking Systems Pvt. Ltd. Vs CCE Mumbai on an identical issue of hologram produced from stamping foils as base material relied on Apex Court rulings and classified them under chapter 4901 - Apex Court rulings clearly held that as per HSN Note (2) of Chapter 49 the security holograms the product in question where the primary use is of security and self-adhesive is only incidental and therefore rightly falls under chapter 49 as a product of 'printing industry' - appellant's "Polyester Hologram Excise Label" produced out of stamping foil (transfer foil) is rightly classifiable under chapter 49 of CETA - hologram produced by the appellants are not covered under any of the excluded items i.e. Ch.39.18, 48.14 or 48.21 of HSN of Chapter 49 - the impugned order is set aside. [Para 6, 7, 8]



CCE & ST Vs M/s Varsana Ispat Ltd (Dated: March 2, 2015) CX - Assessee engaged in manufacture of excisable goods namely Billets and M.S. TMT Bars and availing benefit of area based exemption under Notfn 39/2001-CE - Refund claim of amount which had been paid towards Basic Excise Duty from PLA in terms of said Notfn was filed - Assessee set up machinery for manufacturing of Ingots - Said Notfn as amended by Notfn 55/2004-CE, it shall apply only to new industrial unit which was set up on or after date of publication of notfn in Official Gazette, but not later than 31.12.2005 - Revenue views that assessee installed the Concast Machines for manufacturing of Billets after 31.12.2005 - Assessee submits that machineries installed prior to 31.12.2005 were capable to manufacture Billets and Ingots - That installation of Concast Machine is mainly for purpose of enhancement of production capacity - On perusal of Chartered Engineer's certificate, it is found that liquid metal is moulded manually to make Ingots - But in case of production of Billets, liquid metal is moulded through caster - Assessee in their Cross Objection stated that Billets are being manufactured with help of automatic moulding machine i.e. Concast Machine - So, it is clearly evident from records that Concast Machine was installed for manufacturing of Billets after 31.12.2005 - So, assessee is not eligible to avail benefit of exemption notfn: CESTAT


M/s Hosch Equipment India Ltd Vs CCE (Dated: September 9, 2015) CX - Assessee is the manufacturer of Belt Scraper and parts of Belt Scraper - Evidences have been brought on records by investigation that there were clandestine manufacture and clearance of excisable goods in form of shortage of finished good stocks and also from private records maintained in factory premises alongwith statements of concerned persons - Pre -deposit of an amount of Rs.15.00 Lakhs is ordered: CESTAT


CCE Vs Sulzer Pumps India Ltd(Dated: September 22, 2015)

CX - Valuation - s.4 of CEA, 1944 - Customers insisting for third party inspection of PD pumps - Amounts paid to third party by assessee recovered from customers by raising debit notes - said amount has nothing to do with Transaction value - CE duty cannot be demanded on the same - Revenue appeal rejected: CESTAT [para 4]



M/s Bell Ceramics Ltd Vs CCE&ST (Dated: July 27, 2015) CX– CENVAT - Duty paid Coated Pipes (capital goods) used as replacements in a pipeline used for transportation of natural gas from GAIL's take off point to Appellant's factory for the manufacture of finished goods are eligible for CENVAT credit under CCR, 2004 – Appeal allowed: CESTAT [para 4, 5]


M/s C A Chewing Fragrance Pvt Ltd Vs CCE (Dated: July 22, 2015) CX - Assessee is manufacturer of Madhu and Asha brand Gutkha - On intelligence, factory premises of assessee was searched and certain documents, unaccounted finished goods, raw materials alongwith cash of Rs. 4,03,000/- were found and same were seized - It is alleged that Gutkha manufactured is much more than the quantity shown in statutory records - Total Gutkha manufactured is quantified on basis of quantity of tobacco purchased by assessee and consumption of tobacco has been taken as 7.99% - Assessee contends that tobacco contains moisture - No sample of raw tobacco was drawn during course of investigation to ascertain moisture content in tobacco - On contrary, assessee has produced a report of Harcourt Butter Technological Institute, Kanpur which confirms that moisture content is 15.38% - Said report produced by assessee has been brushed aside by Adjudicating Authority which is not proper - Demand on basis of consumption of tobacco in a particular period on which test is conducted later on is not sustainable.

No evidence to show excess consumption of other raw materials to be used in manufacture of Gutkha - As without the usage of other raw materials which forms 92% quantity to manufacture Gutkha the demand is not sustainable - No opportunity of cross-examination of persons whose statement has been relied by Adjudicating authority given to assessee, impugned order is in violation of principal of natural justice, therefore, impugned order is set aside and matter is consigned to Adjudicating

Authority for denovo adjudication: CESTAT


Savira Industries Vs CCE (Dated: September 4, 2015) Central Excise - Demand of duty on manufacture of Scaffoldings - Demand of duty under extended period of limitation - Adjudicating Authority confirmed the demand, but dropped part of the demand in respect of sub-contracted production. Both assessee and revenue are in appeal.

Held: Limitation - The appellants genuinely believed that mere cutting, bending, welding of steel rods/sheets not amount to 'manufacture' and held no new commodity emerged out and there is merit in appellant's justification. It is pertinent to state that the dutiability of structurals and parts thereof was held in favour of Revenue only by the Tribunal's Larger Bench decision in the case of Mahindra & Mahindra Ltd. Vs CCE - 2005-TIOL-1215-CESTAT-DEL-LB . Therefore, there is enough justification in favour of the appellant and there was no suppression of facts with intent to evade non-payment of duty. (para 9)

The entire demand covered in the SCN dt. 31.1.2008 for the period



Godrej Consumer Products Ltd Vs CCE & ST (Dated: July 30, 2015) CX - Valuation - s.4, s.4A of CEA, 1944 - Powder Hair Dye - Both, sachets and mono packs are capable of being sold in retail - neither the appellant nor the Revenue collected any opinion from Legal Metrology Department as to whether the appellant would be required to affix the MRP on sachets or on multi-piece packages or on both - Computation of demand also erroneous - Matter remanded: CESTAT [para 32, 35, 36]



Eastern Medikit Ltd Vs CCE (Dated: August 12, 2015) CX - Assessee engaged in manufacture of medical and surgical instruments and appliances - Dispute arose regarding eligibility for exemption for Intra Venous Cannula (IVC) and Central Venous Catheters (CVC) as per notfn 6/2003-CE as amended, read with notfn 21/2002-cus - Assessee's claim is that these are covered by entry in notification viz. "disposable and non-disposable Cannula for aorta, vena cavae and similar veins and blood vessels and cannula for infra -corporal spaces" - If IVC manufactured by the appellants are used in the similar such arteries and veins, the exemption is certainly eligible - As regards to exemption for CVC, there are separate entries in exemption notfn for Cannula and for Catheters of different types - CVC manufactured are meant for delivery of drugs and monitoring of central venous pressure - Catheters are different from Cannula in structure and function, though there may be certain overlapping in their nature of usage - Exemption available to Cannula as per Entry No.34 in List 37 of Notfn 21/2002-Cus cannot be extended to CVC manufactured by assessees - Assessee is eligible for exemption for Cannula and not for catheters manufactured by them: CESTAT


Esab India Ltd Vs CCE (Dated: August 21, 2015)

Central Excise - CENVAT credit - appellants are engaged in the manufacture of welding electrodes and we lding fluxes, having manufacturing units at various places - They have availed input services credit on services of Labour charges for garden maintenance at factory premises; travel; Lunch expenses provided by M/s. V-Care Logistics; Xerox machine taken on rental basis; Car hire charges/Air & Rail Ticketing; Subscription charges and Insurance charges; denied in adjudication - demand for its recovery of credit with interest and penalty is agitated herein.

Held: The issue already stands settled by various High Court / Tribunal rulings on the admissibility of cenvat credit on the above charges - As regards maintenance of garden, as per the condition laid down by TNPCB, it is mandatory to operate the plant the ETP/STP effluent wastes should be treated efficiently and continuously and used for green belt development, which in turn is mandatory as per the Factory Act; and the appellants are eligible for credit in terms of the Karnataka High Court ruling in the case of Millipore India Pvt. Ltd. - In regard to the outdoor catering, High Court of Madras in the case of M/s. Turbo Energy Ltd. held that the outdoor catering service is eligible for cenvat credit - In regard to the Xerox machine and subscription charge, insurance charges, etc., all these are related to the manufacture of final products - Allahabad High Court in the case of HCL Technologies upheld the Tribunal order allowing the subscription of magazines - Tribunal in the case of Axles India Ltd. examined the inclusive definition of Rule 2 (l) of CCR 2004 - following the ratio of the rulings cited, appellants in the instant case are eligible for cenvat credit for all the services; Accordingly, the impugned order is set aside. [Para 6]


CCE Vs G B Engineering Enterprises Pvt Ltd (Dated: August 17, 2015) Central Excise -CENVAT credit - The respondent availed credit on capital goods which were installed in the adjacent premises, 500 mts. awa y from the main unit - both were not registered under central excise and carried out only job work for the main unit and appropriate excise duty was discharged by the respondent unit - Revenue viewed the credit erroneous, that the impugned Capital goods we re located in the other premises, and that there was no intimation / permission from the department for removal of capital goods to the other two units - demand for recovery of credit with interest and penalty under Rules 14 and 15(2) of CCR 2004 adjudicated, set aside by Commissioner (Appeals), and agitated by Revenue herein.

Held: No dispute on the fact that the respondents discharged the central excise duty on the finished goods which were cleared by the main unit - The impugned order clearly brought out the fact that both the units were carrying out the job work and no finished goods were cleared from the unregistered units -Madras High Court in the case of HabasitIakoka Pvt. Ltd. on identical issue allowed cenvat credit on the capital goods installed in unregistered premises and used in the manufacture of the final product - ratio of the HabasitIakoka decision squarely applicable to the present case as the capital goods were installed in the adjacent unregistered premises and used for job work of main unit and finished goods were cleared from the respondents main unit on payment of duty - no infirmity in the impugned order, same is upheld. [Para 4]


CCE Vs Impcops (Dated: September 11, 2015) Central Excise - Classification - Respondent engaged in manufacture of Neelibhringadi Thailam (Gingelly Oil base), NeelibhringadiThailam (Coconut Oil base), Sugandham Thailam and Danta Dhavana Churnam - Dispute relates to whether they fall under sub-heading No. 3305.99 as viewed by the department or the whether the same is entitled to be classified under sub-heading No. 3003.39 of CETA,1985, as Ayurvedic formulations/medicaments as claimed by the assessee - demands adjudicated, set aside by Commissioner (Appeals), and agitated herein.

Held: The Apex Court, in CIENS Laboratories Mumbai examined identical circumstances and held at Para 19 that when a product contains pharmaceutical ingredients that have therapeutic or prophylactic or curative properties, the proportion of such ingredients is not invariably decisive; that what is of importance is the curative attributes of such ingredients that render the product a medicament and not a cosmetic; that though a product is sold without a prescription of a medical practitioner, it does not lead to the immediate conclusion that all products that are sold over/across the counter are cosmetics; that if a product's primary function is care and not cure, it is not a medicament; that Cosmetic products are used in enhancing or improving a person's appearance or beauty, whereas medicinal products are used to treat or cure some medical condition; and that a product used mainly in curing or treating ailments or diseases and contains curative ingredients even in small quantities, is to be branded as a medicament - The Ahmadabad Bench of the Tribunal in the case of CCE, Rajkot Vs. Ban Labs Pvt. Ltd. held that the oil with ingredients specified in the authoritative books and manufactured with licence from Drugs Control Authority are classifiable as ayurvedic medicine and not as hair oil - Commissioner (Appeals) in the impugned order recorded that the assessee's products as certified by various Doctors and Consumers to show that the impugned goods were prescribed and used as medicines and the assessee had been able to satisfy the common parlance test and held that the impugned products in question are ayurvedic medicaments, which will be classifiable under the heading 3003.30 of the CETA, 1985 and not under 3305.10 - Following the ratio of the rulings in CIENS Laboratories and Ban Labs, impugned order is upheld. [Para 5, 6, 7]


Tata Steel Ltd Vs CCE & ST (Dated: July 13, 2015)

ST - Cenvat credit on input services used in one unit and availment in another unit - Issue rests on appreciation of evidences and interpretation of various provisions of law, which would be considered at the time of final disposal of appeals - In interest of justice, assessee is directed to deposit Rs.47.00 lakhs: CESTAT


Power Network Engineers Pvt Ltd Vs CCE (Dated: July 20, 2015)

ST - Assessee engaged in providing service under category of 'erection, commissioning, or installation services' and 'Works Contract of Service' for transmission of electricity - Transmission of electricity became exempted vide Notfn 11/2010-ST and distribution of electricity was exempted vide Notfn 32/2010-ST - For limited purpose to ascertain eligibility to benefit of exemption Notfn 32/2010 for period from 22.6.2010 till September, 2010, in event the service related to distribution of electricity for said period, it needs to be verified/scrutinized by adjudicating authority - Since the issue involved is one of interpretation of law and major period of demand is covered by retrospective exemption, no penalty is liable to be imposed - Matter remanded: CESTAT

2015-TIOL-2217-CESTAT-BANG

Lakshmappa Vs CCE, ST & C (Dated: July 30, 2015) Service Tax- BAS- Final Order-Remand- the activity undertaken by the appellants under contract with Mysore Paper Mills is not a simple case of cutting of trees and then transporting the cut and debarked wood to the premises of their client - The appellants are required to convert the cut wood into billets of specific sizes, which sizes are fit for use in the pulp plant- it has to be held that the cut wood has undergone changes- the activities undertaken by the appellants amounts to processing - matter remanded to original adjudicating authority to decide if this

processing amounts to manufacture or not.

Limitation- Revenue, though in the context of dispute involving the Mysore Paper Mills, was aware of the fact of placing work orders upon various contra ctors, for extraction collection, debarking stacking of the pulp wood. From this it becomes clear that there was no malafide on the part of the contractors to suppress the fact of placement of work orders upon them - there is no evidence produced by the Revenue to reflect upon the malafides of the assessee- Number of contractors are involved and it cannot be presumed that all of them colluded together to suppress the said fact of grant of work orders to them- Issuance of tender notifications and placement of work orders is a matter of record of M/s Mysore Paper Mills, in which case, it is difficult to accept that the same were suppressed by the present appellants- there was no justifiable occasion for the Revenue to invoke longer period of limitation- as the matters are being remanded to the original adjudicating authority for considering the aspect of manufacture, he is directed to examine each and every file separately and to limit the demands,if any, to the normal period.


Caltex Gas India Pvt Ltd Vs CC (Dated: August 11, 2015) Customs - SAD - Appellant purchased LPG from high seas and sold it on payment of sales tax, claiming exemption from SAD under Notification No. 34/98-Cus (S.No. 12) - SAD exemption denied in adjudication, demand confirmed under Sec 28(1) of the Customs Act 1962, upheld by Commissioner (Appeals), and agitated herein.

Held: No dispute that the goods were high seas import and sold on discharging sales tax - On identical issue the Tribunal in the case of CC, Mangalore Vs. Hindustan Petroleum Corpn. Ltd. relied upon the Vijirom ruling and held that SAD is not leviable - by applying the HPCL ruling, the demand of SAD on the imported goods is not sustainable; the impugned order is set aside [Para 5]


Savira Industries Vs CCE (Dated: September 4, 2015)

Central Excise - Demand of duty on manufacture of Scaffoldings - Demand of duty under extended period of limitation - Adjudicating Authority confirmed the demand, but dropped part of the demand in respect of sub-contracted production. Both assessee and revenue are in appeal.

Held: Limitation - The appellants genuinely believed that mere cutting, bending, welding of steel rods/sheets not amount to 'manufacture' and held no new commodity emerged out and there is merit in appellant's justification. It is pertinent to state that the dutiability of structurals and parts thereof was held in favour of Revenue only by the Tribunal's Larger Bench decision in the case of Mahindra & Mahindra Ltd. Vs CCE - 2005-TIOL-1215-CESTAT-DEL-LB . Therefore, there is enough justification in favour of the appellant and there was no suppression of facts with intent to evade non-payment of duty. (para 9)

The entire demand covered in the SCN dt. 31.1.2008 for the period



Godrej Consumer Products Ltd Vs CCE & ST (Dated: July 30, 2015)

CX - Valuation - s.4, s.4A of CEA, 1944 - Powder Hair Dye - Both, sachets and mono packs are capable of being sold in retail - neither the appellant nor the Revenue collected any opinion from Legal Metrology Department as to whether the appellant would be required to affix the MRP on sachets or on multi-piece packages or on both - Computation of demand also erroneous - Matter remanded: CESTAT [para 32, 35, 36]



Eastern Medikit Ltd Vs CCE (Dated: August 12, 2015) CX - Assessee engaged in manufacture of medical and surgical instruments and appliances - Dispute arose regarding eligibility for exemption for Intra Venous Cannula (IVC) and Central Venous Catheters (CVC) as per notfn 6/2003-CE as amended, read with notfn 21/2002-cus - Assessee's claim is that these are covered by entry in notification viz. "disposable and non-disposable Cannula for aorta, vena cavae and similar veins and blood vessels and cannula for infra -corporal spaces" - If IVC manufactured by the appellants are used in the similar such arteries and veins, the exemption is certainly eligible - As regards to exemption for CVC, there are separate entries in exemption notfn for Cannula and for Catheters of different types - CVC manufactured are meant for delivery of drugs and monitoring of central venous pressure - Catheters are different from Cannula in structure and function, though there may be certain overlapping in their nature of usage - Exemption available to Cannula as per Entry No.34 in List 37 of Notfn 21/2002-Cus cannot be extended to CVC manufactured by assessees - Assessee is eligible for exemption for Cannula and not for catheters manufactured by them: CESTAT


Esab India Ltd Vs CCE (Dated: August 21, 2015) Central Excise - CENVAT credit - appellants are engaged in the manufacture of welding electrodes and welding fluxes, having manufacturing units at various places - They have availed input services credit on services of Labour charges for garden maintenance at factory premises; travel; Lunch expenses provided by M/s. V-Care Logistics; Xerox machine taken on rental basis; Car hire charges/Air & Rail Ticketing; Subscription charges and Insurance charges; denied in adjudication - demand for its recovery of credit with interest and penalty is agitated herein.

Held: The issue already stands settled by various High Court / Tribunal rulings on the admissibility of cenvat credit on the above charges - As regards maintenance of garden, as per the condition laid down by TNPCB, it is mandatory to operate the plant the ETP/STP effluent wastes should be treated efficiently and continuously and used for green belt development, which in turn is mandatory as per the Factory Act; and the appellants are eligible for credit in terms of the Karnataka High Court ruling in the case of Millipore India Pvt. Ltd. - In regard to the outdoor catering, High Court of Madras in the case of M/s. Turbo Energy Ltd. held that the outdoor catering service is eligible for cenvat credit - In regard to the Xerox machine and subscription charge, insurance charges, etc., all these are related to the manufacture of final products - Allahabad High Court in the case of HCL Technologies upheld the Tribunal order allowing the subscription of magazines - Tribunal in the case of Axles India Ltd. examined the inclusive definition of Rule 2 (l) of CCR 2004 - following the ratio of the rulings cited, appellants in the instant case are eligible for cenvat credit for all the services; Accordingly, the impugned order is set aside. [Para 6]


CCE Vs G B Engineering Enterprises Pvt Ltd (Dated: August 17, 2015) Central Excise -CENVAT credit - The respondent availed credit on capital goods which

were installed in the adjacent premises, 500 mts. away from the main unit - both were not registered under central excise and carried out only job work for the main unit and appropriate excise duty was discharged by the respondent unit - Revenue viewed the credit erroneous, that the impugned Capital goods were located in the other premises, and that there was no intimation / permission from the department for removal of capital goods to the other two units - demand for recovery of credit with interest and penalty under Rules 14 and 15(2) of CCR 2004 adjudicated, set aside by Commissioner (Appeals), and agitated by Revenue herein.

Held: No dispute on the fact that the respondents discharged the central excise duty on the finished goods which were cleared by the main unit - The impugned order clearly brought out the fact that both the units were carrying out the job work and no finished goods were cleared from the unregistered units -Madras High Court in the case of HabasitIakoka Pvt. Ltd . on identical issue allowed cenvat credit on the capital goods installed in unregistered premises and used in the manufacture of the final product - ratio of the HabasitIakoka decision squarely applicable to the present case as the capital goods were installed in the adjacent unregistered premises and used for job work of main unit and finished goods were cleared from the respondents main unit on payment of duty - no infirmity in the impugned order, same is upheld. [Para 4]


CCE Vs Impcops (Dated: September 11, 2015) Central Excise - Classification - Respondent engaged in manufacture of Neelibhringadi Thailam (Gingelly Oil base), NeelibhringadiThailam (Coconut Oil base), Sugandham Thailam and Danta Dhavana Churnam - Dispute relates to whether they fall under sub-heading No. 3305.99 as viewed by the department or the whether the same is entitled to be classified under sub-heading No. 3003.39 of CETA,1985, as Ayurvedic formulations/medicaments as claimed by the assessee - demands adjudicated, set aside by Commissioner (Appeals), and agitated herein.

Held: The Apex Court, in CIENS Laboratories Mumbai examined identical circumstances and held at Para 19 that when a product contains pharmaceutical ingredients that have therapeutic or prophylactic or curative properties, the proportion of such ingredients is not invariably decisive; that what is of importance is the curative attributes of such ingredients that render the product a medicament and not a cosmetic; that though a product is sold without a prescription of a medical practitioner, it does not lead to the immediate conclusion that all products that are sold over/across the counter are cosmetics; that if a product's primary function is care and not cure, it is not a medicament; that Cosmetic products are used in enhancing or improving a person's appearance or beauty, whereas medicinal products are used to treat or cure some medical condition; and that a product used mainly in curing or treating ailments or diseases and contains curative ingredients even in small quantities, is to be branded as a medicament - The Ahmadabad Bench of the Tribunal in the case of CCE, Rajkot Vs. Ban Labs Pvt. Ltd. held that the oil with ingredients specified in the authoritative books and manufactured with licence from Drugs Control Authority are classifiable as ayurvedic medicine and not as hair oil - Commissioner (Appeals) in the impugned order recorded that the assessee's products as certified by various Doctors and Consumers to show that the impugned goods were prescribed and used as medicines and the assessee had been able to satisfy the common parlance test and held that the impugned products in question are ayurvedic medicaments, which will be classifiable under the heading 3003.30 of the CETA, 1985 and not under 3305.10 - Following the ratio of the rulings in CIENS Laboratories and Ban Labs, impugned order is upheld. [Para 5, 6, 7]


M/s Ceebuild Co Pvt Ltd Vs CCE (Dated: August 20, 2015)

CX - Demand confirmed against assessee on the ground that assessee was not a manufacturer of goods supplied to power corporations but got it manufactured from various job workers - Assessee had deposited Rs.5.00 laks during adjudication, offer to deposit further Rs.20.00 Lakhs seems to be reasonable - Assessee is directed to deposit Rs.20.00 Lakhs: CESTAT


M/s Riso India Pvt Ltd Vs CC (Dated: January 21, 2015) Cus - Refund of SAD - Notification 102/2007-Cus - provisions of claiming interest are applicable for the refunds pertaining to notification no.102/2007-Cus - appellant is entitled to claim interest for delayed refund after three months from the date of filing till the realization of the refund claim - Order set aside & Appeal allowed with consequential relief: CESTAT [para 8]


M/s Foremost Industries India Ltd Vs CCE (Dated: August 12, 2015) CX - Assessee is manufacturing Skimmed Milk Powder since 1968 under brand name of "INDANA" - Only for a short period of 47 days, duty was levied on said product, therefore, it cannot be said that assessee was having any malafide intention not to pay duty on products - As assessee admitted that they were using brand name of third party, they were liable to pay duty along with interest - Penalty is not imposable on assessee: CESTAT


M K Trading Co Vs CCE (Dated: September 11, 2015) CX - It is very clear from s.35B(1) of the CEA, 1944 that if any of the amount i.e. either duty, or penalty or fine involved in a particular case is less than Rs.50,000/-, Tribunal has discretion not to admit the appeal - no cause to read 'or' as 'and' - ROM application dismissed: CESTAT [para 5]

CX - Maintainability - There is no stage prescribed under the law for exercising the discretion by the Tribunal for disposing of the appeal in terms of proviso to Section 35B(1) - even if appeal was admitted and stay was granted, in terms of the discretionary power, appeal can be rejected at the stage of final hearing the appeal: CESTAT [para 5]



Shreyans Industries Ltd Vs CCE (Dated: March 27, 2015) CX - A specific plea has been made by assessee that no penalty is imposable inasmuch as Commissioner (A)'s order had been passed in respect of review appeal filed by Revenue against Assistant Commissioner's order and in Revenue's appeal there was no prayer for imposition of penalty - Moreover, this is not the case of wilful mis-statement or suppression of facts - When different views were expressed at different stages by Tribunal and High Courts, application of extended limitation period under proviso to section 11A1 and penalty under section 11AC would not be justified - No penalty would be imposable on assessee for non-payment of duty of dharmada

charges - By the final order dated 5/2/2014 only part Commissioner (A)'s order confirming duty demand on dharmada charges has been upheld and part of order confirming duty demand on freight and transit insurance and imposing penalty on assessee is set aside: CESTAT


Tml Drivelines Ltd Vs CCE (Dated: September 9, 2015) CX - Assessee engaged in manufacture of H.V. Gear Box and cleared said goods to M/s. Tata Motors Ltd., their holding company, by discharging duty on transaction value between assessee and M/s. Tata Motors Ltd as per Sec.4(1)(a) of CEA, 1944 - Certain elements of cost, like quality control, packaging cost and administrative heads are bone of contention between department and assessee - They have placed the opinion of M/s. Mani & Co., Cost Accountant, who had certified method of arriving at the cost of product by them as correct - Assessee submits that they have not incurred any packing cost in transferring finished goods from assessee company to holding company - Stay granted: CESTAT


CCE & ST Vs International Auto Ltd (Dated: July 31, 2015)

CX - CENVAT - Respondent had sold their sheet metal division to M/s Caparo - A demand notice was issued to them alleging that they had availed irregular cenvat credit amounting to Rs.17,41,586/- inasmuch as in the month of February, 2008, after sale of the sheet metal division to M/s Caparo, the Applicants were not in a possession of the said capital goods, therefore, balance 50% of the credit was not admissible to them - Commissioner(A) allowed the cenvat credit on capital goods of Rs.11,77,897/- - Revenue in appeal before CESTAT. Held: There is no appeal filed by the assessee against the restriction of credit - In support of the fact that they have availed cenvat credit on capital goods, which were used in their non-sheet metal division and do not relate to the sheet metal division sold to M/s Caparo, the respondent produced a Chartered Engineer's Certificate dated 18th March, 2015 and wherein the amount shown is Rs.12,07,565/- - since the cenvat credit figures appearing in the Commissioner's (Appeals) order, are diffe rent, therefore, the Chartered Engineer's Certificate needs to be scrutinized by the adjudicating authority - both sides agree for a remand - order set aside and matter remanded: CESTAT [para 7]


Tinplate Company Of India Ltd Vs CCE & ST (Dated: August 19, 2015) CX - Place of removal - Demand of cenvat credit confirmed on the ground that services availed in Port area, on which ST had been paid, are not eligible to cenvat credit, as such services do not satisfy definition of "input services" prescribed under Rule 2(l) of CCR, 2004 - Assessee contends that confirmation of demand is the out come of an erroneous interpretation of expression of "place of removal" - As per Honest Bio-vet Pvt. Ltd. 2014-TIOL-2286-CESTAT-AHM-LB, assessee could able to make out a prima facie case for total waiver of pre deposit of dues - Stay granted: CESTAT


S S Dyes And Chemicals Vs CC (Dated: June 18, 2015)

CX - Appellant paid an amount of Rs.30,53,905/- at the time of investigation and which payment was confirmed as duty and amount was appropriated in o-in-o dated 01.05.1996 - therefore, there is no doubt that what has been paid by appellant has been adjusted towards duty and it is not a mere pre -deposit as canvassed by Revenue - further while passing refund order, adjudicating authority had considered the applicablity of unjust enrichment and only thereafter, granted refund which also shows that what was sanctioned as refund was only duty paid in excess - therefore, question of payment of interest on delayed refund would automatically arise - appellant had filed refund application on 12.09.1994, therefore, provisions of section 27A of CA, 1962 is clearly attracted and said section provides for payment of interest on expiry of three months from the date of refund application till date of grant of refund irrespective of when the order for refund was actually passed - since s.27A itself came into force in May 1995 and appellant claimed interest for period from 01.12.1995 onwards, appellant is rightly entitled for interest at applicable rates from 01.12.1995 till the date of actual payment of refund - appeal allowed with consequential relief: CESTAT [para 5]


M/s A P Electricals Pvt Ltd And Others Vs CCE (Dated: August 17, 2015)

CX - In a case where demands are proposed to be confirmed only on the basis of few statements, it is incumbent upon the adjudicating authority to extend cross examination of the relied upon witnesses before deciding the issue – Matter remanded: CESTAT [para 4]



Om Sairam Steels And Alloys Pvt Ltd Vs CCE(Dated: August 13, 2015) CX - Clandestine clearance - Investigation was conducted in factory of one M/s. Rutuja Ispat Pvt. Ltd. (RIPL), wherein some incriminating documents and nine pen-drives were recovered, which shows that RIPL has clandestinely cleared TMT/MS bars and clandestinely received the raw material, i.e. MS ingots/MS billets, without payment of duty from main appellant - No incriminating documents have been recovered from appellants - Some information from pen drive indicating clandestine purchase of inputs and sale of outputs was recovered from 'RIPL' - Whole case of Revenue is prima facie based on statements of Directors and employees of RIPL - On the basis of statements and recovered data, Directors of appellants were confronted and they have admitted to some extent - By denial of opportunity to cross-examine, there have been gross violation of principles of natural justice - Adjudication of RIPL, arising out of same search and investigation is pending, which will have a bearing on appellant's case and Director of RIPL have disputed recovery of pen-drives from their premises during search and have also retracted his statements vide affidavit dated 4.6.2011 - Thus, cross-examination of Directors and employees of RIPL is desirable for ends of justice - Out of total duty in dispute of Rs.5.65 crores, appellant have already deposited Rs. 1.2 crore approximately, which works out to 22% of duty in dispute, amount of pre -deposit already made is sufficient for purpose of hearing of appeals on merits - No further pre-deposit is required and that impugned order is fit to be set aside and matter be remanded back to Adjudicating authority for re-adjudication afresh after granting opportunity to cross-examine the witnesses whose statements have been relied upon to make out allegations against appellants, and to provide reasonable opportunity of hearing: CESTAT by Majority


Castrol India Ltd Vs CCE (Dated: March 26, 2015) CX - s.4A of CEA, 1944 - If the pro rata value attributable to the additional quantity cleared as bonus quantity, in the same pack, is added to the MRP affixed on the said bonus pack, then the declared MRP will increase accordingly, which the appellant had not realized from its customers - Demand set aside & appeal allowed: CESTAT [para 15, 16, 17]



Ganpati Tobacco Ltd Vs CCE & ST (Dated: July 15, 2015) CX - Non compliance with direction of pre-deposit - As Commissioner(A) while directing pre-deposit has recorded reasons, assessee is directed to deposit further amount of Rs.2.10 Lakhs, taking into consideration that they have already deposited an amount of Rs.2.00 Lakhs during course of adjudication proceeding: CESTAT


The Hooghly Infrastructure Pvt Ltd Vs CCE (Dated: June 30, 2015) CX - Whether assessees are eligible to benefit of Notfn 30/2004-CE as amended by Notfn 12/2011-CE and Notfn 30/2011-CE - Whether jute bags manufactured by assessees classifiable under CH 6305, printed with some particulars of other person, could be considered as bearing a brand name or sold under a brand name - Assessees are manufacturer of jute bags used to affix/print certain particulars on jute bags viz. mills name, manufactured in India, buyer's name, logo, year of manufacture, BIS mark with license number - Revenue contends that since these printings on jute bags satisfy the meaning of 'brand name', prescribed at chapter note (iv) of chapter 63 of CETA, 1985, assessees are not eligible to benefit of said exemption Notfns - Assessee submits that since this printing/writing on jute bags have been carried out pursuant to direction issued by jute commissioner, being a requirement of relevant law, therefore, such particulars printed on jute bags cannot make the jute bags as branded one - That second part of meaning of brand name at chapter note(iv) is also not satisfied as there is no connection in course of trade of jute bags and buyer whose particulars are printed on jute bags, hence, they are entitled to benefit of aforesaid exemption Notfns.

Held: Undisputedly assessees have affixed names, logos and other particulars of another person to whom bags are sold/cleared - Therefore, on affixing particulars which have also been considered as branding by jute commissioner, since branding charges are also included in price of jute bags, hence, it cannot be denied that jute bags bear the brand name of another person and accordingly not eligible to benefit of said Notfns - Impugned Order set aside to the extent of imposition of penalty and also confirmation of demands, wherever extended period of limitation has been invoked - All appeals are remanded to adjudicating authority for re -computation of demand & interest for normal period taking into consideration the grievance of assessees on computation errors: CESTAT


Continental Furnishers Vs CCE (Dated: July 29, 2015) CX - Related person - It is alleged in SCN that M/s. SIPL and M/s. CF are related persons, therefore, price at which clearance took place from M/s. SIPL to M/s. CF is not correct transaction value and profit of 18% is to be added thereon - Case of Revenue is that as Shri Kailash Lamba (HUF) is having its shareholding in both firms

and have advanced certain interest free loans to M/s. SIPL, therefore, both a re related persons and having mutual interest in each other's business - As per Alembic Glass Industries Ltd. 2002-TIOL-626-SC-CX-LB, merely having shareholding in two firms does not constitute the related person - If at all, it is presumed that there is a mutuality of interest, in that case also, when goods are sold by M/s. SIPL to M/s. CF on price at which goods have been sold to independent buyers, in that case, sale price by M/s. CF cannot be held as assessable value for M/s. SIPL - Therefore, demand of Rs.4,84,076/- is not sustainable: CESTAT

Whether aluminum windows fabricated by M/s. K S Enterprises are liable to duty in hands of M/s. SIPL - M/s. K S Enterprises is a sub contractor and who has got manufactured this aluminum windows in question by purchasing their own raw material and at site - M/s. K S Enterprises has issued invoices to M/s. SIPL to that extent M/s. K S Enterprises, has also filed an affidavit stating that goods have been manufactured by them and they are not paying duty as they are enjoying SSI Exemption limit - No contrary evidence have been produced by Revenue, to support that goods have been manufactured by M/s. SIPL - In fact, duty is payable on manufactured goods not on traded goods - Therefore, it is held that aluminum windows were manufactured by M/s. K S Enterprises and M/s. SIPL is only trader for said goods - Therefore, duty cannot be demanded from M/s. SIPL - Penalties on appellants are not sustainable: CESTAT


Sunland Alloys Vs CCE & ST (Dated: July 23, 2015)

CX - Allegation against main appellant is that they are clandestinely taking Cenvat Credit on imported scrap of copper without receipt of inputs in appellants factory - That copper scrap imported under bills of entry have been diverted at Bhiwandi as per statements of Shri Rajeshwar Prasad R Dubey, Proprietor writer of PSTC - M/s Pankaj Shipping and Transport Co.Ltd. (PSTC) were engaged by main appellant as their CHA and transporter with respect to consignments of scrap imported at JNPT and their transport to silvassa - There is not even a confessional statement from main appellant that inputs were not received in their factory and Cenvat Credit was taken only on basis of Bills of entry - No evidence to show that diversion of imported goods took place - In case imported goods were diverted by main appellant then what was the source of alternate raw materials procured by main appellant for manufacturing finished goods - Statements of Shri Rajeshwar Prasad R Dubey, proprietor of PSTC, recorded at different times are contradictory, and cannot be relied upon as evidence in absence of any cross-examination and corroboration - Appeals allowed: CESTAT


Aswin Textiles Pvt Ltd Vs CCE (Dated: July 18, 2015) Central Excise - CENVAT credit - Appellant imported three machines and cleared under EPCG licence at concessional rate of 5% where CVD is exempted whereas the appellant availed credit as per the assessment of the Bill of Entry received in their factory - Adjudicating authority confirmed the demand with interest, appropriated the amounts paid, imposed penalty on the firm under Section 11AC and personal penalty on the individual co-noticee under Rule 26 of CER - primary demand upheld by Commissioner (Appeals) who reduced the penalty on the individual; now agitated herein.

Held: The issue germinated from an audit intervention and the disputed credit stands reversed with interest - The appellant's plea that the person who was handling excise matters had mistakenly taken the CVD amount based on B/E details has some force for the reason importation of goods is handled at their head office located whereas the appellant's unit is located in a different place - under normal assessment of any B/E on regular imports, if CVD is exempted on any goods, the B/E itself specifically

indicate the CVD is "NIL” - Whereas in the present case considering the imports under EPCG and the circumstances explained above that the imports are handed by Head office and the goods received at the factory located at a different place, it is a bonafide mistake of the employee of the company who took the credit of CVD amount mentioned in the assessed Bill of Entry - no suppression of facts with intention to evade payment of duty as alleged by Revenue [Para 7]

The appellant's case is squarely covered under Section 11A (2B) which stipulates not only voluntary payment of duty by the assessee but also any amount pointed out by the officers - In the instant case, it is evident that internal audit was conducted; the officers informed the appellant about the irregular availment and the appellant complied immediately - no suppression of facts by the appellants with deliberate intention to e vade duty - Following the Karnataka HC ruling in CCE Bangalore Vs Geneva Fine Punch Enclosures Ltd and the Tribunal ruling in the case of Panosonic AVC Networks India Co. Ltd. Vs CCE Meerut; demand for recovery of credit with interest is upheld while penalty on the firm under Section 11AC is set aside - personal penalty imposed by the adjudicating authority was reduced by the Lower Appellate Authority - considering the merits of the case, no case for full waiver of penalty and the reduced penalty imposed on the co-noticee is upheld - Firm's appeal is partly allowed and the individual's appeal is dismissed [Para 8, 9]


Arutjothi Woven Sacks Industries Vs CCE (Dated: June 19, 2015) Central Excise - Restoration of appeal - Pre deposit ordered on 10.01.2014 not complied with owing to technical difficulty and medical condition of proprietor; leading to dismissal of appeal ordered vide Final Order No.40351/2014 dt. 20.6.2014 - pre deposit paid on 19.02.2015 and appellant seeks restoration of appeal.


M/s Bhupendra Iron Rolling Mills Pvt Ltd Vs CCE (Dated: July 14, 2015) CX - Penalty - Assessee engaged in manufacture of hot re -rolled products of iron and their operations were covered under Rule 96 ZP of CER, 1944 and also filed declaration under Rule 96ZP (4) - Decla ration filed by assessee on 17.7.1998 is evidenced - Even in impugned order of Commissioner (A) he observed that declaration filed could not be traced by department and hence penalty cannot be imposed - It is also clear that date declaration taken as 1.1.1999 by Commissioner is not correct and it is a mix up with effective date of re -determination of ACP decided by Tribunal - In ex-parte order dated 21.1.2003 of original authority no specific discussion was found regarding date declaration or reason for confirmation of demand for period prior to 1.1.1999 - Demands in SCN relating to period prior to February, 1999 were issued on the ground that declaration was not filed by assessee under Rule 96ZP - Since, the declaration dated 17.7.1998 filed by assessee is not disputed, duty liability has to be accordingly arrived at - Demands of duty made without reference to such declaration will not survive - Regarding appeal by department on need for penalty for period 1.7.1998 to 31.12.1998, it seen that there is no finding by Commissioner (A) on duty liability for this period - Duty liability for this period is to be as per declaration as discussed above - No merit in department's appeal for penalty: CESTAT


CCE Vs Diffusion Engineering Ltd (Dated: September 22, 2015) CX – s.4 of CEA, 1944 - Valuation - Every amount collected by the manufacturer from

the buyer is not includible - Revenue has not been able to establish that the amounts collected by assessee in respect of ‘diaries and calendars' were in connection with sale of excisable goods – unless purchase and distribution of such material by dealers is mandatory, the value of the same cannot be added - Revenue Appeal dismissed: CESTAT [para 6]



Supermax Personal Care Pvt Ltd Vs CCE & ST (Dated: September 23, 2015) CX - Rule 8(3A) of CER, 2002 - Whole purpose of Section 35F is to ensure that the order issued by various authorities are complied with, at least in part, before the appeal against the same is entertained - entire dispute in the case relates to the incorrectness of the utilisation of the amount used from CENVAT account - order of the Commissioner clearly does not re cognize the payments made through said CENVAT account and orders payment in cash - Appeal liable to be dismissed as non-maintainable since Pre-deposit mandated u/s 35F of CEA, 1944 not made - however, time granted of four weeks to pay 7.5% of disputed amount and report compliance: CESTAT [para 8, 9]



M/s Nav Bharat Impex Vs CCE (Dated: July 16, 2015) CX - Refund under Rule 5 of CCR, 2004 for export of Menthol Crystals claim to be exported under bond in terms of Rule 19 of CER, 2002 - Assessees are manufacturer of Menthol Crystal (BP/USP grade), Menthol Powder and Peppermint Oil - In provisions of Rule 6 (3), it is clearly indicated that if manufacturer is not able to maintain separate accounts for receipt, consumption, and inventory of input, he can clear exempted goods by paying amount equivalent to 8% or 10% of value of goods - Provisions of Rule 6 (2) and Rule 6 (3) if read together will cover the case of assessee inasmuch as they claimed that they have reversed an amount as indicated in provisions of Rule 6 (3) of CCR, 2004 - As per Repro India Ltd. 2007-TIOL-795-HC-MUM-CX, refund claim filed by assessee under Rule 5 of CCR, 2004 for exports made by assessee under bond in terms of provision of Rule 19 of CER, 2002 - Appeal allowed: CESTAT


Essel Propack Ltd Vs CCE (Dated: August 25, 2015) CX - s.4 of CEA, 1944 - Valuation - Multilayered plastic collapsible tubes being fragile need to be protected during transport - Assessee clearing goods in special boxes over and above the primary packing as per agreement with buyer - cost of secondary packing given specially at the request of the customer not includible in AV- Demand set aside and appeal allowed: CESTAT [para 4, 5]



CCE & C Vs M/s Century Cement (Dated: September 1, 2015)

CX - Cenvat credit availed by assessee on outward transportation service - Goods have been sold by assessee at the place of buyer i.e. on FOR destination basis - Place of removal is place of buyer's premises - Therefore, no infirmity in impugned order, same is upheld: CESTAT


M/s Nokia Siemens Network Pvt Ltd Vs CCE (Dated: September 7, 2015) CX - Assessee engaged in manufacture of various telecommunication equipments - Major portion of demand was made on the premise that assessee are engaged in trading of goods and they have wrongly availed CENVAT Credit on input services used in carrying out trading activities - Assessee claimed that softwares downloaded from overseas supplier have been used in or in relation to manufacture of dutiable goods - All the documents/evidences were not produced before Commissioner during course of adjudication to which assessee fairly concedes - Matter remanded: CESTAT


M/s Tata Steel Ltd Vs CCE & ST (Dated: August 5, 2015) CX - Assessee transferred billets from their depot to their convergent agent who used them for manufacture of wire rods - Since impugned goods were not sold, they paid duty on said billets by determining the value as per CAS-4 - Convergent agent was eligible to take credit of duty paid by assessee a nd therefore, this exercise is revenue neutral - It is noticed that for the subsequent period, Department is assessing impugned goods under provisional assessment on value declared by assessee - Stay granted: CESTAT


M/s Bihar Raffia Industries Ltd Vs CCE (Dated: August 10, 2015) CX - Assessee are manufactures of HDPE/PP Sacks - Purchase of main raw material HDPE/PP Granules the movement of Granules and semi-finished/finished products like HDPE Woven Fabric and Printed Sacks are duly accounted for in statutory records by assessee - Though assessee pleads that they had compelling reasons for non-appearance, Original Authority is bound by provisions of Section 33A and as such proceeded to adjudicate the case without personal hearing - However, certain details which have direct bearing on finding of Original Authority ought to be considered for a fair decision - Denial of credit is solely dependent on lack of capacity in assessee's unit to cut, print and to make final HDPE Woven Sacks out of Woven fabric - Various accounts maintained by assessee are to be cross-checked with allegations made in SCN - Matter remanded: CESTAT


M/s Cema Electric Lighting Products India Pvt Ltd Vs CCE (Dated: July 16, 2015) CX - Total cenvat credit of Rs. 46,05,092/- was disallowed to assessee out of which Rs. 30,88,512/- availed in or in relation to cenvat credit on various input services and remaining amount of Rs. 15,16,580/- availed in or in relation to trading related activities - So far as disallowing Cenvat Credit of Rs. 30,88,512/- is concerned, inclusive part of definition of input service at the material time in 2007-08 allowed credit of services used in any activity relating to business - Regarding cenvat credit pertaining to canteen services, no evidence exists on record that any amount has

been recovered from employees of assessee - ST paid on any activity relating to business of manufacturing will be available as Cenvat Credit to assessee: CESTAT

So far as disallowing Cenvat Credit of Rs. 15,16,580/- is concerned, credit in question relates to services used in Trading activities carried out at assessee's 16 branches all over India - From records, it is not forthcoming as to which are these services on which assessee has taken cenvat credit and also whether services at trading branches availed is covered under above mentioned 17 services mentioned under Rule 6(5) of CCR, 2004 - Although, assessee claims that they are entitled to 100% credit in respect of services covered under Rule 6(5), but they have also not come out with clarity on actual services availed by them - Matter remanded to original adjudicating authority: CESTAT


Bharat Heavy Electricals Ltd Vs CCE (Dated: June 30, 2015) Central Excise - Interest - appellant, a Public Sector Undertaking is a manufacturer of Boiler Auxiliary products including Electrostatic Precipitator - They opted for provisional assessment under Rule 7 of Central Excise rules due to price variation clause in the contract and variation of rate per Kg adopted on the estimated design value - On finalisation of the price, they have paid the differential duty on their own by raising the supplementary invoices on the goods already cleared before finalisation of assessment - Subsequently assessments were finalised by jurisdictional Asst. Commissioner in seven OIOs - In respect of 2 OIOs the original authority demanded interest under Rule 7 (4) of CER where the differential duty was already paid by them before finalization and in respect of remaining 5 orders no interest was demanded - The assessee filed appeal against the former two orders and Revenue agitated the latter five orders before Commissioner (Appeals) who held that interest is chargeable on differential duty paid under supplementary invoices issued for the price variation; rejected the assessee's appeals and allowed the Revenue appeals; now agitated herein.

Held: The appellant opted for provisional assessment on account of price variation clause in each of the contracts - There is no dispute on the fact though they opted for provisional assessment immediately on finalising the price they raised supplementary invoice for recovering the amount from buyers and paid the differential duty - the Principal Bench of Tribunal in the appellant's own case reported in BHEL Vs CCE Bhopal, has discussed the identical issue in depth, examined the meaning of the expression "the month for which such amount is determined" mentioned in rule 7 (4) and held that the word used in the expression "for" clearly refers to the month for which amount is determined pursuant to finalisation of assessment - It was held that interest liability would commence from the month succeeding the day on which duty was due and payable in relation to the goods cleared - if the appellant contention that interest is payable after finalisation is accepted, then the expression used in rule 7 (4) would have been "in" instead of "for", with reference to the month following the day on which duty was due - The lower appellate authority has also discussed this particular expression "for" which the said amount is determined used in the Rule 7 (4) of CER - the issue attained finality as far as the appellant is concerned - inte rest is chargeable on the differential duty paid through supplementary invoices raised by the appellants and accordingly, the impugned order is upheld. [Para 6, 7]


CCE Vs M/s Bajaj Hindustan Ltd (Dated: July 13, 2015)

CX - Issue is regarding cenvat credit of ST paid on construction services - Construction of residential colony/dormitory adjacent to factory premises was the necessity because of location of factory in a remote area, where if accommodation is

not provided to staff/workers, continuous/round the clock manufacturing activity will hamper - Cost towards such construction has also been considered as expenditure in books of accounts of assessee - Thus, such construction activity is in relation to business of assessee, and therefore, ST paid for accomplishing the purpose of business, merits consideration as 'input service' for purpose of Cenvat benefit - By relying on Ultratech Cement 2010-TIOL-745-HC-MUM-ST and ITC Ltd. 2012-TIOL-199-HC-AP-ST , Tribunal vide Final order dated 08.06.2015 and 17.06.2015 has allowed cenvat credit of ST paid on construction service to present assessee - Since, operation of said orders have not been stayed by higher courts, issue is no more open for any debate, and therefore, cenvat benefit on disputed services are available to assessee: CESTAT


M/s Benara Automotives Pvt Ltd Vs CCE (Dated: August 4, 2015) CX - Assessees, M/s BAPL and M/s BVL are manufacturers of bearing and bushes - Case has been made out by Revenue on basis of documents resumed from third parties and corroborative statement of those parties as well as to some extent statement of Shri Mukesh Benara and Shailender Kumar Singhal, Senior Sales Officer of BAPL - Assessees sought cross examination of third parties whose statements has been relied by Ad judicating Authority but same was denied which is in gross violation of principal of natural justice - Some of the documents recovered from premises of buyers have been countersigned by Shri Mukesh Benara and assessee during course of argument have also admitted the same - Therefore, for fair trial, matter requires cross examination of person whose statements have been relied upon - Matter remanded: CESTAT


National Engineering Industries Ltd Vs CCE (Dated: August 4, 2015) CX - Assessee is having computerized accounting which manages end to end operations - There are large varieties of raw materials, work-in-progress and finished products - The standardized system of accounting based on measurement and conversion of raw material to finished product on weight/length basis is fed to computer - Shortages and excesses found during physical stock verification which remained un-reconciled are within tolerance limit keeping in view the thousands of types of raw material and finished goods involved in accounting by assessee - While the whole discrepancy in physical stock has come to light only as per stock taking conducted by assessee, there is no allegation or evidence to the effect that shortages/excesses are not attributable to accounting errors or complexities but are due to unaccounted clearances finished goods and consumption of raw material - Reversal of credit on raw material and demand of duty on finished goods solely on ground of physical stock taking done by assessee is not sustainable - Appeal allowed: CESTAT


Hindalco Industries Ltd Vs CCE (Dated: April 9, 2015) CX - CENVAT - Rule 2(k) of CCR - Welding electrodes used for repair and maintenance of plant and machinery are indirectly used in manufacture of final product - same qualifies as 'input' and assesse is entitled to take CENVAT credit - Tribunal decision in Ultratech Cement - 2015-TIOL-2145-CESTAT -MUM followed - Appeals allowed with consequential relief: CESTAT [para 2, 3]


Rolltec Engineering Vs CCE (Dated: June 25, 2015) Central Excise - CENVAT credit - Dispute relates to availment of input services credit on (i) Car Hiring Charges (ii) Cleaning Charges (iii) Sewage Line Maintenance Charges (iv) Security Services (v) Foreign Travel Services (vi) Container Fumigation Service (vii) Pallet Fumigation Service (viii) Courier Charges and (ix) Export Freight; viewed by Revenue as inadmissible; demand for recovery adjudicated, upheld by Commissioner (Appeals) and contested herein.

Held: The impugned order does not disclose as to examination of the evidence in respect of each of the services availed by the appellant - The lower appellate authority merely endorsed the order passed by the Adjudicating authority; such bald order is not accepted by law - The appellant had made categorical submission as to how Car Hiring has relevance to the business; how Cleaning Service and Sewage Line Maintenance Charges were necessity for protection of its operations - relevancy of Security Services, Foreign Travel Service, Container Fumigation Service, Pallet Fumigation Service as well as Courier Charges for its exporting a ctivity explained - non-consideration thereof itself is a violation of principles of natural justice; that buries justice - when the appellant brought out categorical submission on admissibility, it would be futile exercise to send back again the matter for re-consideration - appeal is allowed to reduce the litigation, finding relevancy and integration of the Cenvatable input services with the manufacture and sales activity of the appellant. [Para 3, 4]


Tansi Watch Assembly Unit Vs CCE (Dated: April 1, 2015) Central Excise - Refund - consequent to finalization of provisional assessments, the appellant (engaged in the manufacture of watches falling under Chapter 99 on behalf of Titan Industries) filed refund claim - adjudicating authority sanctioned the refund but credited the same to the consumer welfare fund, as the appellants failed to produce any evidence against unjust enrichment; same upheld by Commissioner (Appeals) and agitated herein.

Held: Period involved in the present case relates to the finalization of provisional assessment for the year 1996-97, which was finalized on 11.01.99 - in the present case appellant manufacture watches on behalf of M/s. Titan Industries and these watches are sold to the ultimate consumers after allowing the discounts and these discounts are pre -determined and already known to the trade before removal of the goods - fact discussed by Commissioner (Appeals) in the impugned order - clear that the discounts were given to the ultimate consumers before clearance - In identical issue, the Tribunal in the case of Tata Motors has held that the discounts given before clearance, unjust enrichment clause will not be applicable - Division Bench of the Tribunal in the case of Andhra Pradesh Paper Mills has also held that question of unjust enrichment does not arise in the case of stock transfer - Ratio of rulings squarely applicable to the facts of the present case; unjust enrichment does not arise as the discounts were pre-determined and already known prior to the removal of goods - order sanctioning the refund and credited to the Consumer Welfare Fund is set aside [Para 6]


Perfetti Van Melle India Pvt Ltd Vs CCE (Dated: July 31, 2015) CX - Limitation - Assessees engaged in manufacture of sugar confectionery, chewing gum and chloromint and classifying the product under Heading No. 1704 which was

always in knowledge of Department through ER -1 Returns, classification, declarations, letter dated 5.11.97 and also the demand and settlement of demand as discussed earlier in latter period - Demand for excise duty on Chloromint indicating extended period is not sustainable because of application of time bar under Section 11 A of CEA, 1944: CESTAT

As regards to valuation of free supply items when goods are subjected to MRP based assessment, reta il packing are the jars, which bear MRP declaration as per legal requirements and also clear indication to the effect that number of free pieces inside said pack -Jar - CBEC vide Circular dated 28.10.2002 clarified that if an individual item is supplied free in multi pack and has no MRP printed on it, the MRP printed on multi pack will be taken for purposes of valuation under Section 4 A - Demand of duty in respect of such free items is not sustainable: CESTAT

2015-TIOL-2150-CESTAT-ALL

CCE Vs M/s Anand Transformers Pvt Ltd (Dated: July 7, 2015) CX - Valuation - Whether cost of transportation from place of removal to place of delivery is required to be added to assessable value or not under Section 4 of CEA, 1944 - Assessee has entered into two separate contracts for sale of transformers and for transportation of transformers - Assessee submits that sale of finished goods is affected at factory gate, therefore, removal of finished goods takes place at time of clearance from factory gate - That only point of delivery of finished goods is customer's premises even if transportation and transit insurance are paid by manufacturer - As per Accurate Meters Ltd. 2009-TIOL-31-SC-CX-LB, transportation charges cannot be added to assessable value as the same are charged by assessee under separate contracts: CESTAT


M/s Anand Tissues Ltd Vs CCE & ST (Dated: August 26, 2015) CX - Delay in discharge of monthly duty liability by due date and the delay continued beyond the period of one month from due date - Provisions of Section 8(3A) of the Act become applicable and assessee forfeits facility to pay duty on monthly basis and to utilize cenvat credit and accordingly is required to pay duty on goods cleared during that period consignment-wise and without utilizing cenvat credit paid - Appellant during forfeiture period paid the duty by utilizing cenvat credit - As per Indsur Global Ltd. 2014-TIOL-2115-HC-AHM-CX , court has gone into the question of constitutionality of condition in Rule 8(3A) of CEA, 1944 that during the period of forfeiture, duty is required to be paid without utilizing cenvat credit held that this provision is un-constitutional - Impugned order is not sustainable and as such, appellant have strong prima facie case in their favour - Stay granted: CESTAT [Para 6]


Tejas Network Ltd Vs CCE (Dated: August 26, 2015) Central Excise - CENVAT Credit - Transfer of accumulated CENVAT Credit of Additional duty of Customs under Rule 10A of the CENVAT Credit Rules, 2004 - Transfer of credit from Unit II to Unit I denied in adjudication on the ground that the credit was take two years before the Rule coming into force and the credit ought to have been transferred only at the end of a quarter.

Held: Rule 10A is self-contained pro vision introduced for transfer of credit of AED

(SAD) and it has prospective effect. Once it is came into effect from 01.04.2012, transfer of unutilized credit from one unit to other unit is automatically permissible and the Rule also specifies that such transfer should takes place at the end of the quarter, which has prospective effect and only permissible at the end of a quarter. In the present case, unit-II which was defunct and the credit remained unutilized was correctly transferred on 31.05.2012, immediately after introduction of Rule on 01.04.2012, as they are eligible to transfer the same from 01.07.2012. Even though they have transferred the credit on 31.05.2012, they have not utilized the entire credit and only Rs. 2.5 Crores was utilized before 01.07.2012. The said Rule 10A came into effect from 01.04.2012 and the credit which was already accumulated and remained unutilized prior to the amendment rightly can be transferred after 01.04.2012 - The appellants are eligible for transfer of unutilized credit from unit-II to Unit-I and the transfer of the credit done by the appellant is in conformity with the provisions of Rule 10A, which was specifically introduced only for this purpose relating transfer of unutilized credit availed on SAD (AED). The appellant is not liable for any penalty. The impugned order is set aside and both the appeals are allowed. (para 7)



Hindustan Coca-Cola Beverages Pvt Ltd Vs CCE (Dated: April 13, 2015)

CX - CENVAT Credit availed by the appellant's predecessor in respect of the capital goods which were removed by appellant to their sister unit - no provision in CCR to demand duty from appellant - demand set aside & appeals allowed: CESTAT [para 7.3]



CC & CE Vs Chinteshwar Steels Pvt Ltd (Dated: April 9, 2015)

CX - CENVAT - Respondent Assessee during July 2006 took credit of duty paid on steel items like HR coils, channels & angles, joist and electrodes for manufacture of capital goods viz. Material handling system, day bin kiln feed, product storage bin, kiln base frame etc. which were installed within the factory of production - no duty was paid by claiming exemption under notification 67/95-CE on these capital goods manufactured by assessee for production of the final product Sponge Iron - SCN issued & credit denied on the ground that channel, angles, coils, plates etc. falling under CH 7216.10, 7208.31, 7238.11 on which credit was availed by treating the same as capital goods is wrong as definition of capital goods does not include the same - Commissioner(A) setting aside the order of original authority and permitting CENVAT credit - Revenue in appeal before CESTAT. Held: Goods fabricated in question qualify as capital goods and also as inputs within the meaning of rule 2(a) r/w rule 2(k) of CCR, 2004 - assessee is entitled to CENVAT credit availed on the items in question for fabrication of capital goods in question, further utilised in the factory of production - Order of Commissioner(A) upheld and Revenue appeal dismissed - Assessee entitled for consequential relief: CESTAT [para 10, 11]


Ultratech Cement Ltd Vs CCE (Dated: February 6, 2015)

CX - CENVAT - Whether welding electrodes used in the maintenance of machine etc., the CENVAT Credit on the same is allowable or not? Held: A very plain reading of the definition of 'input' given in rule 2(k) of CCRevidences that even goods used in relation to, directly or indirectly, in the process of manufacture like, lubricating oils,

greases, cutting oils, coolants, accessories of the final products qualify as input for the purpose of manufacture of end product - it is undisputed fact that without use of machinery, there cannot be manufacture and unless the machinery is in ready condition i.e ready for use, no manufacture of cement can take place - accordingly, welding electrodes used for repair and maintenance of plant and machinery are indirectly used in manufacture of cement - same qualifies as 'input' and assesse is entitled to take CENVAT credit - appeal allowed with consequential relief: CESTAT [para 7]


M/s Becton Dickinson India Pvt Ltd Vs CCE (Dated: July 15, 2015) CX - Assessee engaged in manufacture of Syringes and was availing Cenvat Credit on duty paid on input received by them - Said syringes were exempted from payment of duty vide notfn 07/2000 - As assessee was having accumulated credit of duty in their Cenvat Credit account on said date they did not reverse the same - Final product of assessee became exempted under said notfn wholly and same is not on the basis of value or quantity of clearance by assessee - Therefore, provisions of Rule 57H(7) are not applicable - Cenvat Credit of Rs.5,67,97,164/- shall not lapse - Consequently, demand of Rs. 13,54,094/- will also not sustain: CESTAT


M/s Aadi Plastic Industries Pvt Ltd Vs CCE (Dated: April 06, 2015)

CX - CENVAT - Haldia Petrochemicals Ltd. were supplying inputs to appellant and paid Service Tax on behalf of the appellant under GTA service for transporting the same - credit availed by appellant denied. Held: Appellant is receiver of the transport service - it is immaterial as to who facilitates the transportation - Credit admissible - appeal allowed with consequential benefits: CESTAT [para 6]


M/s Aarti Industries Ltd Vs CCE & ST (Dated: June 09, 2015)

CX - Assessee availed CENVAT Credit on items like S.S. Sheets, Plates, Joists, Channels, Coils, M.S. Angles, H.R. Coils, M.S. Plates and Flanges as capital goods which were used in manufacture of storage tank and its support structures - Issue of admissibility of CENVAT Credit to said items was under dispute and different opinions were available - Very fact that issue is decided in 2010 by Larger Bench in case of Vandana Global Ltd 2010-TIOL-624-CESTAT-DEL-LB clearly convey that there was a confusion in mind of manufacturers regarding admissibility of CENVAT Credit on disputed items - It cannot be held that assessee had any intention to evade payment of duty - Period of demand is from 2005 to 2009 and SCN was issued on 03.06.2010 - Appeal allowed on time bar: CESTAT


M/s John Deere India Pvt Ltd Vs CCE (Dated: September 08, 2015)

CX - Conversion from EOU to DTA - Rule 11(3) of CCR, 2004 will apply only in a situation where final products are exempted and lying in stock - no requirement to reverse carry-over of unutilized credit lying in balance: CESTAT [para 6.2, 6.3]



Tamilnadu Asbestos Vs CCE (Dated: July 31, 2015)

Central Excise - Refund - appellant who is a State Public Sector Undertaking, engaged in manufacture of PCC Pipes, supplied Asbestos pipes to Tamil Nadu Water Supply and Drainage Board (TWAD Board) during the period 28.3.1998 to 31.8.1998 as per the contract price of the year 1997-98 pending receipt of the rate contract for the year 1998-99 - TWAD subsequently reduced the contract price with retrospective effect from 28.3.1998; refund claimed as excess duty paid as per the revised rate contract for the said period - The adjudicating authority rejected the claim on limitation and on merits; the same was upheld by Commissioner (Appeals) in the impugned order agitated herein.

Held: Appellant cleared the goods on payment of duty from March 98 to August 98 whereas the claim was filed on 27.11.98 - Based on limitation counted from ‘relevant date' prescribed in Sec 11B of the Central Excise Act, 1944, the refund claim for the period 28.3.98 to 27.5.98 is time barred and the refund for the period 28.5.98 to 31.8.98 is not hit by limitation. [Para 5]

The refund claim relates to duty paid for the intervening period after the end of the financial year 1997-98 and pending receipt of revised rate contract from TWAD Board for the year 1998-99 and the appellant had cleared the goods as per the rate contract price of the previous year 1997-98 - In the present case, since the rates are fixed by TWAD Board which is applicable for full year, there is no variation in the price and the supplier fixes the rate contract every financial year, clearances cannot be stopped and the appellant has to clear on a higher price till receipt of the fresh rate contract - Tribunal in the case of CCE Bhubaneswar Vs Jayshree Chemicals Ltd., and Supreme Court in the case of M/s.HPL SOCOMAC Ltd. Vs CCE Gurgaon allowed the refund in identical circumstances; ratio squarely applicable to the instant case. [Para 6, 7]

When appellant had paid excise duty at higher price for the intervening period based on the previous year rate pending the receipt of the rate contract for the year 1998-99, they are eligible for refund of excise duty paid for the intervening period subject to limitation - unjust enrichment clause is not applicable in the present case as the TWAD Board has not paid any excess excise duty to the appellant and appellant had collected only the price as per the rate contract for the year 1998-99. [Para 8, 9]


CCE Vs M/s Chettinad Cement Corporation Ltd (Dated: July 09, 2015)

Central Excise - CENVAT credit - input service credit of tax paid on Geological Consultant Service used for the mine and Construction of Walls and Concrete Work made in the mining area held admissible by Commissioner (Appeals) and agitated by Revenue herein.

Held: Services of Geological Consultant was necessary for the mine, for which, the service tax was paid to avail his services - respondents eligible to the Cenvat credit of such tax - on the issue of Construction of Walls and Concrete Work flooring in the mine, Commissioner (Appeals) has shown justification as to requirement of the construction in the mining area - impugned order upheld. [Para 2, 3]


CCE Vs Virender Processors Pvt Ltd (Dated: June 19, 2015)

CX - Respondent exported certain goods and claimed rebate of Additional Duties of Excise (T&TA) - Revenue's case is that since no Additional Duties of Excise (T&TA) is leviable on the final product and, therefore, there is no question of availing credit relating to Additional Duties of Excise (T&TA) on the inputs and further since no input credit could have been availed no question of refund under Rule 5. Held: Issue is squarely covered in favour of the respondent by the decision of the High Court of Bombay in the respondent's own case 2009-TIOL-764-HC-MUM-CX - following the same, the appeals filed by Revenue are dismissed: CESTAT [para 5]


Hercules Hoists Ltd Vs CCE (Dated: March 19, 2015)

CX - s.4 of CEA, 1944 - Appellant engaged in manufacture of material handling equipment bearing their brand name 'INDEF' - enquiry revealed that during the period 01.07.2000 to 31.03.2004 goods manufactured by appellant were being marketed by one M/s Indef Marketing Services Ltd., a 100% subsidiary of appellant and which later on merged with appellant - appellant had also appointed a network of Authorized marketing associates (AMAs) who in turn appoint dealers in their respective territories - as per business policy followed by appellant, 50% of expenses incurred by dealers towards advertisement which primarily projects them as dealers of appellant reimbursed by appellant - Revenue alleges that the 50% amount reimbursed by appellant will form part of Transaction value.

Held: As per the definition of Transaction value, if any amount is spent by AMA or dealer for advertisement or publicity, same will form part of the transaction value - however, in the present case, AMAs are not advertising the goods per se but what they are doing is to put an advertisement such as in Yellow pages and at other places like billboard so as to indicate that they are the dealers of INDEF equipment - from the advts it is clear that the advertisements are mainly to the effect that a particular dealer deals in the product of the appellant - these advts. cannot be called as advts. for the manufactured goods but are advertisements of the dealer - undoubtedly, such advts. indirectly helps the appellant and it is for this reason that they are reimbursing 50% of the expenses - moreover, Revenue has demanded duty on amount reimbursed by appellant to dealers and not the amount spent by the dealer - amount reimbursed by dealer is not additional consideration and on the contrary this is an amount which is paid by the appellant to the dealer out of the sale proceeds or the value already recovered/to be recovered by appellant from AMAs/dealers - appeals allowed: CESTAT [para 4, 5]


Bajaj Electricals Ltd Vs CCE (Dated: July 02, 2015)

CX – Appellant manufacturing various types of fans and selling to their wholesaler/dealer – in addition to trade discount, appellant reducing bill in the name of service charges which is also based on per piece of fan – Revenue alleging that 'service charges' will form part of AV – appellant submitting that 'service charges' is also a type of discount and it is uniformly given to all wholesalers/dealers and is known to dealers – further, due to objection from department w.e.f 01.09.1999 they changed nomenclature to 'additional trade discount'. Held: Service charges do not appear to be a trade discount for the simple reason that in the same invoice there is a discount with the name 'trade discount' – appellant has not been able to bring out any evidence whatsoever to support their contention that deduction due to service charges is nothing but trade discount – contention of appellant cannot be acceded to – so also by changing nomenclature the appellant is only trying to mislead the department and by this change the service charges cannot become additional trade discount – Order upheld & appeals dismissed: CESTAT [para 5, 6]


M/s Rama Wood Craft Vs CCE & ST (Dated: February 16, 2015) CX - Whether Cenvat credit of duty paid on inputs used in manufacture of finished goods, which were supplied to SEZ developers would be admissible or not - As per Steel Authority of India Ltd. 2013-TIOL-384-HC-CHATTISGARH-CX, amendment to Rule 6 (6) of CCR, 2004 w.e.f. 31/12/08 has to be treated as retrospective amendment and for the period prior to 31/12/08 also supplies to SEZ developers have to be treated as exports and Cenvat credit in respect of inputs used in manufacture of finished goods supplied to SEZ developers would be admissible - Requirement of pre -deposit of Cenvat credit demand, interest and penalty is waived: CESTAT


M/s Sakthi Sugars Ltd Vs CCE (Dated: July 8, 2015)

Central Excise - CENVAT credit - The principal issue involved in this appeal is whether appellant is eligible to the Cenvat credit on inputs and capital goods in respect of the goods used in the construction of the plant as well as installation of machinery etc.

Held: Appellant deserves to be heard on the admissibility as held in a catena of rulings - In view of fair submission of the appellant and also development of the law, appellant is directed to make an application to the Adjudication authority within a month of receipt of this order to fix the hearing on readjudication of the matter afresh on the issues involved as emerged from the show-cause notice - Appellant is entitled to a fair opportunity of hearing of all issues both on facts and law as well as the evidence - Upon hearing and framing the issue properly, the Adjudicating authority shall pass a reasoned and speaking order. [Para 2, 3]


Cheran Cements Ltd Vs CCE (Dated: July 7, 2015)

Central Excise - Default - appellants are manufacturers of excisable goods, registered under Central Excise and discharging excise duty - they have defaulted payment of central excise duty on consignment basis through P.L.A during the relevant period - show cause notices for contravention of Rule 8 (1), 8(3) and 8(3A) of Central Excise Rules, 2002 and Rule 3 (4) of CCR 2004 were issued, alleging that they defaulted payment of duty on consignment basis through PLA and the duty paid through cenvat credit should be treated as improper duty payment - The lower authorities confirmed the demands with interest; appropriated the amounts paid through P.L.A. and also imposed penalty under rule 25 of CER 2002 and Rule 15 of CCR 2004; agitated herein on common grounds.

Held: High Court of Madras in the case of Malladi Drugs & Pharmaceuitcals Ltd. Vs UOI and A.R. Metallurgicals Pvt. Ltd., decided batch of writ petitions and struck down Rule 8(3A) as ultra vires and in their order concurred with the Gujarat High Court judgement in the cases of Indusur Global Ltd. and Precision Fasteners Ltd. - Both the Gujarat and Madras High Courts have held that condition contained in Rule 8 (3A) of Central Excise Rules 2002 for payment of duty “without utilisation of cenvat credit” is contrary to the scheme of availment of cenvat credit under CCR and that Rule 8(3A) is arbitrary and violative of Article 14 of the Constitution - demand of duty under Rule 8(3A) is unsustainable as the said Rule has been struck down by the High Court - demands in the impugned orders liable to be set aside; assessee's appeals are allowed with consequential relief, if any, and Revenue's appeals are rejected [Para 6, 7]


Ajmer Food Products Pvt Ltd Vs CCE (Dated: July 30, 2015)

CX - Assessee make cream within their factory for use in manufacture of Cream biscuits - Issue is regarding taxability of such cream made by them and used captively in manufacture of Cream Biscuits - The fact that job charges are fixed separately for cream/biscuits by itself does not establish the marketability of the product which are wholly consumed in manufacture of cream biscuits as per specifications provided by principal manufacturer - To charge excise levy on cream captively consumed it is necessary to support contention of marketability of product with evidence which may include details of shelf-life, general availability of market for such product and market inquiry - As there is no detailed discussion in proceedings of lower authorities, matter remanded: CESTAT


Bhushan Steels Ltd Vs CCE (Dated: July 27, 2015) CX - Assessee availed cenvat credit on account of discounts awarded to them after clearance of goods on payment of duty by supplier - When supplier of goods have not claimed refund of excess duty paid by them on account of reducing excess value of goods in question, assessee has correctly taken the cenvat credit - No merit in impugned order, same is set aside and appeal allowed: CESTAT


Dabur India Ltd Vs CCE (Dated: July 28, 2015) CX - Exemption under Notfn 56/2002-CE - Dispute relates to three products namely Gulabari, Keora Water and Shilajit Capsules - In respect of Gulabari and Keora Water, whether process involved in making them amounts to manufacture or not and their correct classification is point of dispute - A close perusal of process involved in production of bottled and labeled Rose Water and Keora Water indicates that a commercially identifiable distinct product emerges as a result of these processes and it is clear that these two products are emerging out of processes amounting to manufacture - As per Rules of interpretation, when there is a specific heading by very same name of product, these products cannot be put under generic heading of aqueous solution - As such, said products are rightly classifiable under heading 33030020 and 33030030 - Department cannot take two different views in respect of same product manufactured by same person in two different units: CESTAT

In respect of Shilajit Capsules, whether same are generic Ayurvedic Medicaments or PP medicines is to be decided - This product is manufactured in many units of assessee and they have been paying C E duty on same as patented or proprietary ayurvedic medicine - Though Department claimed that Shilajit Capsules are generic Ayurvedic medicine as per formula/ingredients mentioned in Authoritative Ayurvedic text, no documentary support to the effect that product cleared by assessee is as per any such text - Ayurvedic medicine cleared by assessee is manufactured PP medicine and not of generic nature: CESTAT


Jindal Steel And Power Ltd Vs CCE (Dated: July 22, 2015) CX - Cenvat credit taken on JO Trucks and concrete sleepers have been denied to

assessee on the ground that said disputed goods cannot be considered as either input or capital goods - Since JO Truck is not to be categorised as 'motor vehicle', exclusion for vehicles provided in definition of input will have no application and assessee will be eligible to take cenvat credit on JO Trucks, since said specially designed trucks have been used within factory for movement of goods between different plant facilities, fact of which has also been accepted in impugned order that JO Trucks are used as material handling equipment by assessee - With regard to concrete sleepers used for laying railway lines within factory premises, said item is not falling under exclusion clause of definition of input and as such by nature of its use and its participation in manufacture/ production of excisable goods, same should be considered as input for purpose of taking cenvat credit - By relying upon Rajasthan State Chemical Works 2002-TIOL-66-SC-CX-LB, appeal allowed: CESTAT


CCE Vs M/s Aarti International (Dated: May 11, 2015)

CX - Assessee had procured HSD from ESSAR Oil under ex-bond bill of entry filed by ESSAR oil during period February, 2004 to July, 2004 - Said HSD was procured without payment of duty in terms of notfn 52/03CE - Revenue contends that additional customs duty leviable under section 116 of FA, 1999 read with section 168 of FA, 2003 is not exempt under said notfn - But instead of demanding this duty from ESSAR oil, SCN has been issued to assessee on 17/10/2005 by invoking extended period of proviso to section 28 of Customs Act, 1962 - Extended limitation period of 5 years is not invokable, so, demand is time barred - As per Paras Feb International 2010-TIOL-963-CESTAT -DEL-LB duty should have been recovered from M/s. ESSAR Oil and not from assessee: CESTAT


M/s Agarwal Cottion Mills Vs CCE (Dated: April 15, 2015)

CX - Admissibility of cenvat credit on processing charges - Revenue views that assessee for calculation of cenvat credit, as per formula prescribed in notfn 35/03-CE NT, have also included value of colours, processing chemicals and processing charges while they should have calculated quantum of cenvat credit only on value of grey fabrics - Issue stands decided against assessee by Tribunal's judgment in case of BB Shah P. Ltd. - Only question which remains to be decided is that it is not clear as to on what basis, Department has concluded that cenvat credit has been calculated on value of grey fabrics including value of processing charges and the value of colours and chemicals - Matter remanded to Original Adjudicating Authority for de novo adjudication: CESTAT [Para 6]


Ultratech Cements Ltd Vs CCE & ST (Dated: July 2, 2015)

Central Excise - Supply of Cement to SEZ units/developers without payment of duty - Demand of duty on clinker captively used for manufacture of such Cement by denying the benefit of exemption under Notification No 67/95 CE - Appeals by assessees against confirming demands and by revenue against dropping the demands by lo wer Authorities.

Held: Covered by Surya Roshini case - The Tribunal in Surya Roshini case - 2013-TIOL-424-CESTAT -DEL, has categorically discussed the meaning of exempted goods defined in Rule 2(d) of Cenvat Credit Rules and held that the goods supplied to the SEZ units/developers are neither chargeable to nil rate of duty nor the goods are

exempted from payment of duty by any Exemption Notification issued under Rule 5A. The Principal Bench's above decision is squarely applicable to the facts of the present case. (para 24)

Cement is not exempted goods - Proposition of revenue that Section 26(1)(c) of the SEZ Act clearly exempts the goods supplied by the DTA to SEZ units/developers and this should be considered while construing the proviso to Notification No.67/95-CE is not acceptable and the word used in the proviso to Notification No.67/95-CE is dutiable and exempted final products in relation to Cenvat Credit Rules, 2001. In the present case, the final product Cement is an excisable commodity falling under Chapter 25 of CETA which are dutiable. There is no exemption of excise duty on cement. Therefore, in view of the Tribunals Principal Bench decision of Surya Roshini case, the final product cement cleared to SEZ units/developers is not exempted goods under any notification issued under Rule 5A of the Central Excise Act.(para 25)

Cement cleared to SEZ unit/developers are not exempted goods but cleared without payment of duty by following the procedures and conditions stipulated in both SEZ and Rule 19 of CER Rules and the clinkers used captively for manufacture of cement cleared to SEZ is covered under Notification 67/95 from exemption of excise duty. (paras 26)

Covered by CBEC Circular - The issue has been clarified by the Board in Circular No.1001/8/2015.Cx.8, dated 28.04.2015 with regard to granting of rebate of duty on goods cleared from DTA to SEZ. This circular, summarizes the contents of all previous Boards circulars and considered various provisions of SEZ Act and SEZ Rules and categorically clarified that supply of goods from DTA to SEZ units/developers constitutes exports.(para 27)

Reference to CENVAT Credit Rules, 2001 in Notification No 67/95CE to include CENVAT Credit Rules, 2004 - Cenvat Credit Rules, 2001 has been amended by Cenvat Credit Rules, 2002 and further amended by Cenvat Credit Rules, 2004. Merely for the reason that the Notification No.67/95 referring to Cenvat Credit Rules, 2001 and not Cenvat Credit Rules, 2004 cannot be a valid reason to deny the exemption under clause (vi) of the proviso to the notification. Even if only 2001 Rules is applied, still the benefit under Clause (vi) of the proviso to the Notification cannot be denied as Rule 6(5) (ii) of the 2001 Rules covered supplies to SEZs. Hence the obligations under Rule 6 of the 2001 Rules would also stand discharged. (para 31)

The word FTZ to be substituted with SEZ - The Revenue's contention that the Notification applies only to clearances to FTZ, but not to SEZs cannot be accepted for the reasons that during the relevant period under dispute there were no FTZ in operation and if the Revenues view is to be taken, no clearance would be made to FTZ after the enactment of SEZ Act with effect from 10.02.2006. Once the SEZ Act came into effect from 10.02.2006 all the units functioning as FTZ were declared as SEZ units. Notification No.4/2003-CE, dated 30.03.2003 was issued to convert various FTZs into SEZs.( para 32)

As per the Notes Explaining Clauses of the Finance Bill, 2007 clause 106, after enactment of SEZ Act FTZs have become redundant and hence it seeks to amend sub-section (1) of Section 3 of the Central Excise Act. By virtue of the above Act, the word FTZ was omitted and substituted with the word SEZ. Therefore, the Revenues plea that the goods supplied to SEZ is not covered under clause (i) of the Proviso to the notification is not acceptable. (para 33)

Issue is revenue neutral - The issue is also hit by Revenue neutrality, as the appellants are otherwise entitled to avail the Cenvat credit of the duty, if any paid on clinker. Alternatively, if a manufacturer avails exemption on intermediate product under Notification 67/95-CE and chooses to pay duty on the cement when cleared to SEZ unit/developer, the duty paid on final product will be fully available to him as refund/rebate. Thus, on both counts the issue is purely revenue neutral. It is not the intention of the government to demand duty on the intermediate product having

considered that the supplies to SEZ are exports. Therefore, the demand of duty on the intermediate product clinker used in manufacture of cement supplied to SEZ units/developers is clearly revenue neutral as the appellants could have claimed refund or availed Cenvat credit. (para 34)



Lona Industries Ltd Vs CCE (Dated: November 21, 2014) CX - CENVAT - Input Service - Rule 2(l) of CCR, 2004 - ST paid on Insurance service of Employee Personal/Group Insurance premium, whether an Input Service. Held: There is a nexus in expenses for Group Insurance Scheme for workers - Staff Insurance forms part of manufacturing cost also under CAS-4 standard - Credit admissible as the same are Input services - Appeal allowed: CESTAT [para 5]


Salasar Ispat Pvt Ltd Vs CCE & C (Dated: September 11, 2015)

CX - Clandestine production and clearance of TMT/CTD bars without payment of duty - No credence can be paid to the capacity determined under the compounded levy scheme introduced in 1998 and abandoned after 2-3 years as the scheme did not work properly - Demand confirmed in r/o 1641.25 MT for which evidences available - Duty to be computed by adjudicating authority with proportionate reduction in interest and penalty - personal penalty is also required to be scaled down: CESTAT by Majority


2015-TIOL-2107-CESTAT-BANG

Andhra Polymers Pvt Ltd Vs CCE, C & ST (Dated: June 05, 2015) Central Excise - Eligibility to availability of Cenvat credit on Capital Goods exclusively used for manufacture of exempted final products - Has to be judged at the time of receipt of the capital goods - Subsequent becoming of the goods as dutiable on account of withdrawal of exemption does not revive the question of admissibility - Thus when the capital goods were received by appellant, the final product was exempted - Appellant having used the capital goods for a period of more than four years for manufacture of exempted final products held is not entitled to the Cenvat credit of duty paid on such capital goods post withdrawal of exemption - Impugned order requires no interference - Assessee appeal has no merit hence is rejected. (Para 3.1, 4)


Asia Match Co Pvt Ltd Vs CCE & ST (Dated: May 11, 2015)

Central Excise - Stay / dispensation of pre deposit - Valuation under Rule 10A of CE Valuation Rules 2000 - Appellant firm engaged in manufacture of match sticks; discharged excise duty and cleared to various parties, eight companies belonging to their group and eleven independent match manufacturing companies with independent central excise registrations - These units received the duty paid match sticks and manufacture final product 'Match Boxes' with the brand name of "Chavi"

and in turn sell the finished goods to the appellants or to their group companies on payment of excise duty - the adjudicating authority concluded that all the eleven companies are nothing but job workers of the appellant unit and clubbed them together for demanding excise duty - demands confirmed with interest and penalties on the firm and individuals, agitated herein.

Held: Appellant's unit cleared match sticks after paying excise duty on sale to other units and they in turn manufacture final product under the brand name "Chavi" and discharged excise duty - If the department disputed the price at which excise duty is paid by the eleven units the demand should have been made on those eleven units, same cannot be demanded on the appellants for trading of goods - It has not been clearly brought out in the order whether the appellants are the principal manufacturer and whether eleven units are only job workers - as per the records neither the appellants nor eleven units have opted any job work procedure - the adjudicating authority has defined them as job workers and demanded duty on the price at which the match boxes are sold by the appellants, which is contrary to Rule 10A of Central Excise Valuation Rules - appellants have made out a prima facie case for waiver of pre -deposit of the duty demands and penalties; same stand waived. [Para 5]


CCE Vs Arasan Company (Dated: April 30, 2015) Central Excise - Offence case - SSI Exemption - M/s ACF found operating two dummy units, M/s RG and M/s SA engaged in manufacture of tractor trailers - confiscation of seizure, demands and penalties on firms and individuals adjudicated;same set aside by Commissioner (Appeals), and agitated by Revenue herein.

Held: The grounds of appeal of Revenue specifically brings out evidence on record to discard the conclusion of the Commissioner (Appeals) - It is contended inter alia that (a) ACF was engaged in the manufacture of trailers, but in order to avail SSI exemption separately RG and SA were floated solely for the purpose of evading payment of duty - (b) No manufacture of trailers took place at the premises of RG; the trailers shown and alleged as manufactured by RG were in fact manufactured in the premises of ACF - (c) The unit SA remained only on paper and the existence was merely to account for production of trailers manufactured in the premises of ACE so as to separately avail SSI exemption - The three units were functioning as a homogenous entity without any distinction whatsoever; and in view of the Tribunal ruling in the case of M/s U.K.Machine Tools Pvt. Limited, all the three units are to be treated as a single entity - SSI declaration filed by them were nothing but mis-declarations for the purpose of cheating the department; and the proviso to Section 11 A (1) was rightly invokable - By their acts of commission in the offence committed by ACF, the individuals had rendered themselves liable for penalty. [Para 6]

When the record itself indicates categorical statements recorded from different persons under Section 14 of Central Excise Act against assessee and there was one man show by Shri Natesan which is evident from different materials gathered by Revenue, both the units are exposed to be dummies of ACF - Revenue has also brought out that there is certificate issued Consulting Engineer to the effect that SA had no manufacturing facility for manufacture of trailers on record - The stock position of the raw materials were also under the control of ACF, clearly indicating that without ACF, both the two dummies were inoperative - When what that is apparent is not real, it is compelling reason that the order of Commissioner (Appeals) is to be set aside and OIO to be restored. [Para 7-9]


Anil Bioplus Ltd Vs CCE (Dated: July 22, 2015)

CX - Whether assessee is required to pay amounts at a particular rate on value of exempted goods (Bio Feed) cleared by them under provisions of Rule 6 of CCR, 2004 - Bio Feed is made from waste generated in manufacturing of products like Calcium Gluconate, Enzymes, Flavours, which are cleared on payment of duty - It is the case of assessee that duty paid inputs, on which credit is taken, are not used directly in manufacture of byproduct Bio Feed - No evidence has been produced by Revenue that duty paid inputs are directly used in manufacture of exempted byproduct Bio Feed - In absence of any such corroborative evidence, duty paid inputs used by assessee will be deemed to have been used in manufacture of dutiable goods Calcium Gluconate, Enzymes and Flavours

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